Explanatory Memorandum to COM(2022)157 - Reporting of environmental data from industrial installations and establishing an Industrial Emissions Portal

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This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2022)157 - Reporting of environmental data from industrial installations and establishing an Industrial Emissions Portal.
source COM(2022)157 EN
date 05-04-2022



Contents

1.

CONTEXT OF THE PROPOSAL




• Reasons for and objectives of the proposal


Regulation (EC) No 166/2006 1 (the Regulation) established the European Pollutant Release and Transfer Register (E-PRTR), as the Europe-wide register providing public access to key environmental data from industrial facilities located in the EU, Iceland, Liechtenstein and Norway. The E‑PRTR contains data reported annually by some 30,000 industrial facilities which cover 65 economic activities across the EU. The Regulation implements the 2006 Kyiv Protocol on Pollutant Release and Transfer Registers (Protocol) 2 , which entered into force in 2009. It is the only legally binding international instrument on pollutant release and transfer registers.


Every year, Member States send the Commission a report containing data submitted by the operators of industrial facilities on the releases and transfers of each facility. The data are then published by the Commission on a public website, with the support of the European Environment Agency.


The Regulation’s effectiveness, efficiency, relevance, coherence and EU added value were assessed as part of the Commission’s Regulatory Fitness and Performance (REFIT) programme 3 . The assessment looked at the benefits of the E-PRTR as well as the potential for simplifying it and reducing regulatory costs and burdens. On the basis of this assessment, the Commission’s second report on the Regulation’s implementation 4 concluded the following.


·The E-PRTR has proven to be a pivotal knowledge base on releases from EU industrial activities. It provides easily accessible and high-quality data. It gives the public access to this valuable information, thereby supporting environmental decision-making.

·However, the E-PRTR can be further improved and made more effective by being aligned with reporting obligations set out in other environmental legislation, as well as by having it report additional contextual information.


As a follow-up to this implementation report, several initiatives were carried out.


·The Industrial Emissions Portal (the Portal) 5 was created. It contains the data reported annually under the E-PRTR Regulation, together with the data reported in line with Directive 2010/75/EU on industrial emissions (the Industrial Emissions Directive – IED) 6 . This Portal, having replaced the E-PRTR website, brings together data on industrial activities reported under these two EU environmental laws.


·For additional contextual information, Commission Implementing Decision 2022/142 7 has established units and metrics that enable operators to report each year on the production volume of each E-PRTR facility. Production volume reporting becomes mandatory for the first time for the 2023 reporting year.


The European Green Deal 8 is Europe’s growth strategy aiming for a climate-neutral, clean and circular economy by 2050. It recognises the need for deeply transformative policies, to optimise resource management and minimise pollution. The Commission has committed itself to revising EU rules in order to reduce pollution from large industrial installations. It will revise legislation and see how to make it fully consistent with the Green Deal’s zero pollution ambitions and its climate, energy and circular economy policies, bearing in mind the benefits of doing so for both public health and biodiversity.


The IED and the Regulation are complementary laws aimed at monitoring the environmental impact of industry:

·the IED lays down command and control rules to gradually reduce pollution from the EU’s largest industrial and livestock rearing installations, while maintaining a competitive level playing field;

·the Regulation helps monitor efforts to reduce pollution by improving public information on how installations are performing.


Further analysis was carried out to identify potential improvements to the Regulation, including an impact assessment. What follows is the impact assessment’s main conclusions.


·The Regulation’s sectoral scope should be revised to be more consistent with activities covered by related environmental laws. This concerns the IED in particular, but also Directive (EU) 2015/2193 on medium combustion plants (MCPD) 9 and Council Directive 91/271/EEC on urban waste water treatment (UWWT Directive) 10 . To be further aligned, activities should be reported at installation level – as in the case of these other laws – rather than at facility level.


·The E-PRTR Regulation should cover all relevant pollutants. This means certain pollutants should be added to Annex II of the Regulation, including:

·priority substances under the 2000/60/EC Water Framework Directive 11 and the 2008/105/EU Surface Water Directive 12 ;

·substances identified as of very high concern in Regulation (EC) No 1907/2006 (REACH) 13 ;

·substances covered by EU laws on groundwater and air quality, including the Groundwater Directive 14 , the Ambient Air Quality Directive 15 and Directive 2004/107/EC on the concentrations of certain pollutants in ambient air 16 .


·To be consistent with EU policies on the circular economy and decarbonisation and to enable better environmental benchmarking of E-PRTR data, operators should report on production volume and complementary data, especially the use of resources (energy, water, and raw materials).

·Current shortcomings affecting the Regulation’s implementation should also be addressed by:

·updating the analytical methods operators use to determine their releases and off-site transfers;

·asking operators to confirm explicitly in their report to the competent authorities that a release of a given pollutant or an off-site transfer of waste or waste water is below the applicable reporting thresholds;

·allowing Member States to report certain data on behalf of operators rearing livestock, who may lack the resources to report accurate data.


The need to revise the Regulation was confirmed in the European Green Deal, and it is being revised at the same time as the IED. This will ensure the overall consistency and efficiency of these two laws.


In this context, given the nature and extent of the necessary modifications to the Regulation and the need to enhance consistency and legal clarity, this proposal should repeal and replace it while taking over its substantive obligations whenever still needed.


• Consistency with existing policy provisions in the policy area


The Regulation is linked to many other EU environmental laws, since it covers a wide range of agro-industrial installations and relevant substances, including greenhouse gases. The laws it is linked to include pollution legislation e.g. the IED, the MCPD, the UWWT Directive and Council Directive 1999/31/EC on the landfill of waste (Landfill Directive) 17 . It is also linked to EU law protecting environmental media from pollutant releases (including surface water, groundwater and ambient air), because pollutant releases may affect the status of those media.


Lastly, the Regulation is linked to climate law, including the EU Emissions Trading System 18 and the Effort Sharing Regulation 19 .


Europe’s first pollutant register, the European Pollutant Emissions Register (EPER) 20 , was set up under the first EU industrial pollution control legislation – the Integrated Pollution Prevention and Control Directive (the IPPC Directive 21 ). The aim of the EPER was to provide information on the main emissions from activities regulated by the IPPC Directive.


However, there are now differences between the IED regulatory system and its inventory of releases because of changes to both laws. In 2006, the EPER became the European Pollutant Release and Transfer Register (E-PRTR), in fulfilment of the EU’s Protocol obligations. In 2010, the scope of the IED was extended to more activities than the IPPC Directive covers. As a result, there is less consistency between the regulatory system for IED agro-industrial activities and the Regulation, its principal monitoring tool. In 2015, regulatory checks on smaller combustion plants were introduced in the MCPD, but without a requirement for an inventory of releases.


This is why, so that the Regulation supports the IED’s implementation, it is proposed to amend Annex I to the Regulation, to extend its coverage to all IED activities and to some smaller combustion plants. By creating an inventory of releases, the E-PRTR also supports the UWWT and Landfill Directives’ implementation.


• Consistency with other Union policies


The European Green Deal specifically mentions the revision of the Regulation. Revising it also contributes to realisation of the EU’s zero pollution vision for 2050 22 , by providing data on agro-industrial releases to air, water and soil. Along with other related EU environmental laws, revising the Regulation will help reduce pollution to levels that are not considered harmful to health or natural ecosystems. It will also respect the limits the planet can cope with, thereby removing toxicity from the environment.


3.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY



• Legal basis


The main objective of the proposed act relates to protecting the environment and human health. Therefore the legal basis of the proposed Regulation is Article 192 i of the Treaty on the Functioning of the European Union.


• Subsidiarity (for non-exclusive competence)


Both the EU and individual Member States have signed the Protocol. Since the Protocol includes options for implementing some rules (e.g. activities can be defined using either capacity or employee thresholds), the Regulation adopts a common approach and ensures that it is applied consistently across the EU.


The Regulation also adds value as it has led to the development of an EU guidance document 23 , with rules and advice on data collection, quality assurance and presentation. This guidance makes data more consistent and easier to compare between Member States.


The European Environment Agency carries out further quality assurance checks. This helps make data more complete and accurate. These checks at EU level identify issues that are then corrected at national level – something that would not happen without a European register.


EU expert groups, workshops and analytical reports also support and help Member States maintain their national registers.


For the public, the Regulation brings significant EU added value by making it possible to easily compare release data for different EU industries and by providing cumulative EU release data. This data would be much harder to collect and combine from 27 separate national registers.


The Regulation therefore brings significant added value, compared with what could be achieved by the individual action of 27 countries, and the Regulation’s subject matter continues to justify EU action.


• Proportionality


It is difficult to measure the E-PRTR’s costs and benefits. However, stakeholders judge the estimated costs of the E-PRTR to be relatively small compared to its significant contribution to data transparency and public participation.


Article 16, an inefficient provision in the E-PRTR Regulation, has already been removed – it required Member States to report on general E-PRTR implementation every 3 years.


• Choice of the instrument


While Regulation (EC) No 166/2006 constitutes the starting point for this Proposal, it is appropriate to repeal and replace it for the sake of legal clarity. Annex III contains the correlation table. Since the proposal aims at repealing and replacing an EU Regulation, the proposal takes the form of a Regulation.

4.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS



• Ex-post evaluations/fitness checks of existing legislation


The 2017 REFIT evaluation of the Regulation concluded that it was fit for purpose and considered an important EU environmental law because of the information it makes publicly available on the environmental performance of large industries.


Stakeholders appreciate the E-PRTR. They recognise that it is easy to access and has a valuable and consistent dataset, with no comparable alternative for EU industrial release data.


The evaluation did not identify how to significantly improve or simplify the existing Regulation. However, it did identify aspects that could be improved on in the following areas:


–while Member States appeared to be converging on good practices, updating the existing EU guidance could help data be interpreted more consistently;

–the E-PRTR could be more efficient and consistent if further aligned with other closely related environmental reporting obligations;

–the obligation for Member States to report on their implementation of the E-PRTR Regulation every 3 years was not considered very useful, suggesting there was scope for simplification;

–adding more contextual data to the existing E-PRTR could make it more useful as a comprehensive source of environmental information.


An impact assessment of the Regulation was completed in 2021, giving more detailed consideration to the following issues.


–Ineffectual aspects of legislation – how to address areas where the current rules could be more effective and efficient.

–Contribution to resource efficiency and less toxic production – determine possible new pollutants to add to the Regulation, especially to align it better with environmental quality standards (for air and water) and the REACH Regulation; consider how the Regulation could contribute to developing and maintaining the circular economy e.g. by reporting on the use of energy, water and raw materials.

–Contribution to decarbonisation – how the Regulation could help make various industrial activities more carbon-efficient.

–Sectoral scope – determine whether the Regulation omits important environmental activities and how it is aligned with and supports related legislation (especially the IED, the MCPD and the UWWT Directive).


• Stakeholder consultations


Initial feedback was provided on the inception impact assessment published on the Commission’s ‘Have Your Say’ website. The consultation ran from 28 September 2020 to 26 October 2020, and got 37 responses.


As part of the impact assessment, an open public consultation on the revision of the IED and the Regulation ran for 13 weeks from 22 December 2020 to 23 March 2021. There were 24 questions, 4 of which directly covered the Regulation. The public and organisations were encouraged to complete an online questionnaire on the EU Survey platform. The consultation was publicised on the ‘Have your say’ website, and stakeholders were also told about its launch by email. Respondents to the consultation could also send position papers.


The consultation was followed by a targeted stakeholder survey. The survey was open for 8 weeks (from 8 March to 30 April 2021), then extended by 2 weeks (until 14 May 2021), so more responses could be submitted. Invitations to fill in the survey were sent by email to over 800 IED and E-PRTR stakeholders.


The survey asked stakeholders to identify and assess different options. It consisted of 61 questions, grouped around six identified problem areas (see below). Some questions were tailored to specific stakeholders: Member State authorities (at any level of administration), industry (individual companies or trade associations) or other groups (environmental NGOs, technical experts, academics and researchers). Word and PDF versions of the survey were sent by email to help collect information and for complete transparency. Three industrial associations and one NGO submitted accompanying material, such as position papers, explanatory remarks and summaries of key messages.


In addition, 30 interviews were conducted with representatives of international bodies, EU institutions, national authorities, industry or trade associations, non-governmental and other organisations.


The main input received on the six problems identified is outlined below.


1. Activities and activity thresholds: Most respondents, from all stakeholder groups, considered it important to align the Regulation and IED activity categorisations. Most researchers, NGOs and public authorities believed this would help their work, while most industry respondents thought it would make no difference to their current E-PRTR tasks. This alignment was seen as an opportunity to make data collection and reporting easier, and to make environmental control activity and data quality more consistent.


2. Pollutants and thresholds for reporting releases: Respondents were asked about the importance of adding 52 identified pollutants to Annex II to the Regulation. There was general support for this proposal, but the results reflect the respondents’ expertise and the importance of these pollutants in the respective industrial sectors. Survey participants also suggested a number of other pollutants that should be included.


3. Information to track progress being made towards developing the circular economy and decarbonising industry: Many researchers, NGOs and public authorities considered it very or fairly important to report additional contextual information on energy consumption and energy recovery/reuse. However, only a small percentage of industry stakeholders thought it was important, often raising the additional administrative burden as a concern.


4. Reporting methods and data flow: Most respondents, from all stakeholder groups, thought it was important or at least slightly important to allow flexibility for top-down reporting (by Member States) in some industrial sectors. On shortening reporting deadlines, many industry stakeholders indicated that the quality of data was more important than the speed of data reporting.


5. Access to E-PRTR information: Researchers, NGOs, public authorities and the public supported the requirement to report releases at a ‘sub-facility level’. Industry representatives were less supportive, believing it would have a significant effect on their workload.


6. Releases from diffuse sources and products: All respondents thought that the proposed options would help improve current E-PRTR information on releases from diffuse sources, with particular support for standardised templates and release factors. Most industry stakeholders thought releases from products were unimportant, while researchers, NGOs and authorities thought them fairly or very important.


• Impact assessment


On 20 December 2021, the Regulatory Scrutiny Board gave a ‘positive opinion with reservations’. This will be published once the Commission has adopted this proposal 24 . In the meantime, the staff working document has been amended to take into account the Board’s findings.


• Regulatory fitness and simplification


In line with the Commission’s commitment to better regulation, this proposal has been prepared inclusively, based on full transparency and continuous engagement with stakeholders, taking due account of both external feedback and external scrutiny to ensure the proposal strikes the right balance.

The E-PRTR is recognised as a best practice in streamlined and coherent reporting 25 . Whilst this limits the potential for further streamlining, the proposals have been designed to minimise additional burden.

The reporting at installation level instead of facility level will ensure full coherence with reporting under Directive 2010/75, thereby reducing any administrative burden related to reporting at different technical levels in industrial sites.

Simplified top-down reporting for rearing of livestock and aquaculture will alleviate the administrative burden on livestock farms and aquaculture businesses by 11.8 M€/y and for public administration: €0.670 million.

Since the existing E-PRTR Regulation (EC) No 166/2006 needs to be substantially modified, it will be repealed and replaced by a new Regulation in order to provide legal certainty, clarity and transparency.

• Fundamental rights


The proposal respects fundamental rights, in particular those in the Charter of Fundamental Rights of the European Union. It also contributes to the right to a high level of environmental protection in line with the principle of sustainable development, as laid down in Article 37 of the Charter 26 .


2.

BUDGETARY IMPLICATIONS




The proposal will have budgetary implications for human and administrative resources in the Commission and the European Environment Agency. The financial statement in the Annex provides these details.


The Commission will have more work to do to implement the Regulation’s broader scope (i.e. wider sectoral coverage) and intensified action (e.g. additional factors such as resource use and reporting at installation level). It will do this work in line with the existing resource allocation.


The European Environment Agency will support the Commission by managing the Industrial Emissions Portal (Portal) and implementing the practical arrangements to accommodate the broader scope and intensified action. This requires a total of two additional full-time equivalents.


5.

5. OTHER ELEMENTS



• Implementation plans and monitoring, evaluation and reporting arrangements


The total releases of pollutants per sector, based on data reported by operators to the E‑PRTR, will remain key indicators to track progress against this initiative’s objectives. The improved E-PRTR will improve monitoring of the environmental performance of different industrial sectors.


·More detailed reporting of pollutants at installation level will enable the analysis of the main processes in sectors where environmental performance is improving or is lagging behind.

·Including reporting of resource use will allow new indicators on use of materials, water and energy to be defined. This will make it possible to track improvements in resource efficiency.

·Regular updates of the substances covered by E-PRTR will make it possible to release indicators of substances of emerging or current concern to be defined. This will in turn make it possible to track improvements in how these substances are used and managed.


These improvements will also help ensure that this monitoring can be effectively used in the broader zero pollution monitoring and outlook framework, to be published every 2 years from 2022. Data on air, water and soil pollution available as part of the zero pollution monitoring framework will help evaluate the impact of reduced pollution from installations covered by the IED and the Regulation.


For the E-PRTR measures, the key indicators will include the timeliness and completeness of reporting – by Member State, sector and environmental medium. Portal web statistics will measure public access to combined IED/E-PRTR information.


Reaction to legislative improvements will be monitored using IED and E-PRTR stakeholder surveys.


• Detailed explanation of the specific provisions of the proposal


Article 1 specifies the subject-matter i.e. establishing the Industrial Emissions Portal (the Portal) as the new online electronic database replacing the E-PRTR and containing all data reported under the Regulation; the implementation of the UNECE Protocol on Pollutant Release and Transfer Registers; the facilitation of public access to environmental information and of public participation in environmental decision-making; and the ability to better evaluate and assess the environmental impacts of industrial emissions legislation.


Article 2 defines key terms with a view to providing legal certainty and clarity and ensuring its correct and complete implementation. These definitions address inter alia the terms ‘installation’, ‘release’, ‘off-site transfer’, ‘diffuse sources’, ‘operator’. For the sake of consistency with other related EU legislation, some definitions refer to definitions set out in the IED and in the 2008/98/EU Waste Framework Directive.


Article 3 specifies what data the Portal will contain, i.e. data reported by the operators and the Member States in accordance with Article 5 and additional relevant environmental information reported under other related EU legislation.


Article 4 addresses the design and structure of the Portal and specifies that data are presented in both aggregated and non-aggregated forms to enable Portal users to undertake specific searches by inter alia installation or activity. The objective is to ensure maximum ease and usefulness for Portal users in terms of access to relevant reported data.


Article 5 outlines the data to be reported annually by the operators of industrial installations concerned, as listed in Annex I, to their Member States. This includes releases to the environment of the pollutants listed in Annex II, off-site transfers of waste and of waste water, the use of resources (e.g. water, raw materials), information contextualising those data (e.g. annual production volume) and whether the installation is covered by other EU related legislation, such as the IED.


To avoid double reporting, Article 5(1)(b) clarifies that off-site transfers of waste which are subject to disposal by ‘land treatment’ or ‘deep injection’ should only be reported as a release to land by the operator of the installation from where the waste originates.


Data on releases and transfers are to be reported as annual totals of all deliberate, accidental, routine and non-routine activities. Article 5 i and Annex II set out threshold values which trigger the reporting obligation. Where those threshold values are not exceeded, operators should declare expressly that their annual releases and/or off-site transfers were below those threshold values. This seeks to address an implementation shortcoming i.e. ambiguity of whether operator null returns reflect reporting failure or releases and transfers below the applicable reporting thresholds. Likewise, Article 5 i addresses another implementation shortcoming, regarding the methods used by operators to quantify their releases and off-site transfers, by establishing the quantification hierarchy of 1. Measurement; 2. Calculation; and 3. Estimation. To enable auditing of operator reports, operators should keep records, of the data from which the reported information was derived, for a period of five years.


The operators of some installations may lack the necessary resources to quantify their deliberate, annual releases of the pollutants listed in Annex II. Therefore, as an administrative simplification, Member States may quantify such releases on behalf of the operators of installations for the rearing of poultry, pigs and cattle (Activity 2 of Annex I) and for aquaculture (Activity 7 of Annex I).


It also requires Member States to set a deadline for operators to provide the data to their competent authorities.


Article 6 addresses the subsequent annual data reporting to the Commission by Member States. The format and date by when Member States are to report data are to be set by means of implementing acts. In this respect, Commission Implementing Decision (EU) 2019/1741 27 , which establishes the data format and reporting deadline, remains applicable. The Commission, assisted by the European Environment Agency, should incorporate Member State data into the Portal within one month of receipt from Member States.


Article 7 addresses the reporting of pollutant releases from diffuse sources. Where no such data is reported, the Commission is empowered to adopt delegated acts to initiate such reporting.


Article 8 concerns the quality of reported data. Operators are required to ensure data quality and competent authorities must assess the accuracy, completeness, consistency and credibility of those data. The Commission may adopt relevant guidelines by means of implementing acts.


Articles 9, 10 and 11: In compliance with the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, the Protocol and relevant EU legislation, including Directive 2003/4/EC of the European Parliament and the Council 28 , these provisions seek to ensure:


(i) free of charge and online public access to the data contained in the Portal whilst specifying that this is without prejudice to the restrictions set out in EU law on access to environmental information e.g. protection of operators’ commercial interests and confidential information;

(ii) public participation in the further development of the Portal; and

(iii) the public’s right to access to justice regarding access to environmental information.


Article 12 refers to development and regular updating of guidance to support implementation of this Regulation. The guidance is to address inter alia reporting procedures and the quality assurance of reported data.


Article 13 requires the Commission and Member States to promote public awareness of the Portal.


Articles 14 and 15: Article 14 empowers the Commission to adopt delegated acts to amend Annexes I and II in order to ensure that the Regulation remains topical.


Regarding Annex I, it provides the ability to add new industrial or agricultural activities that adversely affect, or may affect, the environment or human health as a result of significant pollutant releases or resource use. Activities may also need to be added to effect changes that are made to the Protocol on PRTRs.


Similarly there is a provision to update Annex II by adding pollutants which are subject to specific regulatory controls under EU chemicals, water and air quality legislation, and owing to their potential hazardousness for the environment or human health. Pollutants may also need to be added to effect changes that are made to the Protocol on PRTRs. Furthermore, this provision allows the setting of reporting thresholds that ensure at least 90% capture of pollutant releases from Annex I activities.


Article 15 lays down the conditions for the exercise of these delegations.


Article 16 is the comitology provision specifying that the Commission will be assisted by a committee and that the examination procedure laid down in the comitology Regulation (EU) No 182/2011 applies. It foresees the possible adoption of Commission implementing acts for establishing or updating the date and format of reporting under Article 6 i.


Article 17 specifies the criteria to be considered by Member States when establishing penalties for infringements of the Regulation’s provisions and calls on Member States to adopt compliance assurance measures to prevent and detect infringements.


Articles 18, 19 and 20: Article 18 concerns the repeal and replacement of Regulation (EC) 166/2006. Article 20 addresses the date of entry into force, whilst Article 19 concerns the transitional provisions pending that date.


Annex I specifies the activities to which the Regulation applies, namely:


·installations undertaking one or more activity specified in Annexes I or Ia to Directive 2010/75/EU and above the applicable thresholds specified therein;

·medium-sized combustion plants above a capacity of 20 MW (megawatts);

·additional activities that are specified in the Protocol but not covered by the above legislation, namely: underground mining (including the extraction of crude oil or gas); opencast mining and quarrying; larger urban waste water treatment plants; aquaculture; and ship building/dismantling or painting/paint removal.


6.

This scope of application aims at achieving coherence with other EU related environmental legislation, including Directive 2010/75/EU and Directive (EU) 2015/2193.



Annex II sets the list of pollutants to be reported and the accompanying thresholds that trigger the reporting of releases.


Annex III is a correlation table listing the provisions of Regulation (EC) 166/2006 and the corresponding provisions of this proposal.