Explanatory Memorandum to COM(2007)844 - Industrial emissions (integrated pollution prevention and control) (Recast) [COM(2007) 843 final] [SEC(2007) 1679] [SEC(2007) 1682]

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dossier COM(2007)844 - Industrial emissions (integrated pollution prevention and control) (Recast) [COM(2007) 843 final] [SEC(2007) 1679] ...
source COM(2007)844 EN
date 21-12-2007
1) CONTEXT OF THE PROPOSAL

Contents

1.

Grounds for and objectives of the proposal


The Lisbon Agenda, the Sixth Community Environment Action Programme as well as the EU Sustainable Development Strategy have been important drivers for the process of reviewing the Directive on integrated pollution prevention and control (IPPC) and related legislation on industrial emissions. One of their main elements concerns the achievement of environmental improvements while at the same time ensuring cost-effectiveness and encouraging technical innovation. Furthermore, the review has been identified in the context of Better Regulation and has been included in the EC's simplification rolling programme covering the period 2006-2009.

2.

General context


Industrial activities are an important part of our economy. However, they also contribute to environmental pollution and to the production of waste and use of energy. Despite a reduction of emissions over the past decades, industrial activities remain a major source of pollutants.

The IPPC Directive covers some 52 000 installations. Emissions to air from these installations represent a large share of total emissions of key pollutants and far exceed the objectives set out in the Thematic Strategy on Air Pollution. Without further reduction of emissions from IPPC installations, the positive health and environmental effects to be obtained from these objectives will not materialise.

Industrial activities also lead to other significant environmental impacts, for example on water, soil and waste. An integrated approach taking into account cross-media effects in permitting is therefore essential.

The central element of such an approach is the implementation of Best Available Techniques (BAT). This is defined as using established techniques which are the most effective in achieving a high level of environmental protection as a whole and which can be implemented in the relevant sector under economically and technically viable conditions, taking into account the costs and advantages.

An information exchange on BAT is being organized by the Commission with Member States and other stakeholders to establish BAT reference documents (BREFs) indicating what is regarded as BAT at EU level for each industrial sector.

Industrial installations are also covered by sectoral directives, which set out operating conditions and other technical requirements. In relation to the IPPC Directive, these provisions are to be considered as minimum requirements.


3.

Existing provisions in the area of the proposal



This proposal aims to revise and recast the following separate instruments into a single legal act.


4.

Council Directive 78/176/EEC of 20 February 1978 on waste from the titanium dioxide industry, OJ L 54, 25.2.1978, p. 19



Council Directive 82/883/EEC of 3 December 1982 on procedures for the surveillance and monitoring of environments concerned by waste from the titanium dioxide industry, OJ L 378, 31.12.1982, p. 1


Council Directive 92/112/EEC of 15 December 1992 on procedures for harmonizing the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry, OJ L 409, 31.12.1992, p. 11 (the last three being known collectively as: 'TiO2 Directives').


Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control ("IPPC Directive"), OJ L 257, 10.10.1996, p. 26


Council Directive 1999/13/EC of 11 March 1999 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations ("VOC Solvents Directive"), OJ L 85, 29.3.1999, p. 1


Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste ("Waste Incineration Directive"), OJ L 332, 28.12.2000, p. 91


Directive 2001/80/EC of the European Parliament and of the Council of 23 October 2001 on the limitation of emissions of certain pollutants into the air from large combustion plants ("LCP Directive"), OJ L 309, 27.11.2001, p. 1


5.

Consistency with other policies and objectives of the Union



This proposal is consistent with Article 175 of the Treaty establishing the European Community and aims to provide a high level of protection for human health and the environment.


6.

2) CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT



Consultation of interested parties


7.

2Consultation methods, main sectors targeted and general profile of respondents



The review process began at the end of 2005 and is based on an extensive programme of studies and continuous consultation with stakeholders, including the setting up of an Advisory Group, the organization of a Stakeholders’ Hearing and an internet consultation.

8.

Summary of responses and how they have been taken into account



An internet consultation was organised during the period 17 April – 18 June 2007. About 450 responses were received and analysed.

A large majority of the respondents agreed that:

· EU legislation should continue to cover all the main environmental impacts of the IPPC installations in an integrated way;

· BAT should remain the key principle in preventing/minimising the risk of pollution from industrial installations and that BREFs should play a central role in BAT implementation;

· certain minimum rules should be set at EU level regarding the issue of inspection and additional actions defined in the field of the monitoring and reporting of emissions;

· specific research can help to identify new techniques for consideration as potential future BAT;

· unnecessary monitoring and reporting requirements should be removed from operators and all the reporting requirements from Member States to the Commission should be combined and streamlined.

All background information is available on a public CIRCA website 1 dedicated to this initiative.


9.

Collection and use of expertise



Scientific fields /areas of expertise concerned


The following areas of expertise have been used in developing this proposal: 2 assessment of health and environmental impacts from industrial emissions (to air, water, soil) 3 environmental technologies to prevent or mitigate industrial emissions 4 economic analysis and modelling 5 estimation of health impacts including quantification in monetary terms 6 estimation of ecosystem benefits 7 expertise in the permitting and control of industrial installations.


10.

Methodology used



The principal methodologies used were expert meetings and the commissioning of an extensive programme of studies, including modelling and collection of detailed information on implementation through case studies and also sectoral and geographical assessment.


11.

Main organisations/experts consulted



A wide range of experts from Member States, scientific experts, industry, environmental NGOs and specialized consultants were consulted.


12.

Summary of advice received and used225



The evidence that the Commission received may be summarised as follows: (i) industrial emissions can lead to serious risks to human health and the environment but can be prevented and controlled in a cost-effective way through the application of Best Available Techniques, (ii) a strengthening of current provisions is necessary in order to exploit the potential of BAT for the benefit of the environment and to support Member States in implementing such provisions, (iii) interactions between different pieces of legislation should be streamlined and certain provisions on reporting and monitoring simplified to reduce unnecessary administrative burdens and to enhance the current implementation practice.


13.

Means used to make the expert advice publicly available



All reports (in both draft and final forms) from experts and contacts, as well as comments and contributions from stakeholders, have been routinely uploaded to the internet for public dissemination.230


Impact assessment

The main problems identified in the Impact Assessment (IA) relate 8 to shortcomings in the current legislation that lead to unsatisfactory implementation and difficulties in Community enforcement actions and, thereby, to loss of health and environmental benefits and 9 to the complexity and lack of coherence of parts of the current legal framework. These problems not only make it difficult to achieve the objectives laid down in the EU Sustainable Development Strategy and in particular the Thematic Strategies, but also have the potential to create distortion of competition due to big differences in environmental standards and unnecessary administrative burdens.

The IA, on the basis of these findings, assessed a number of policy options with the aim of identifying a cost-effective package of measures to address the above issues. The assessment has led the Commission to propose the following:

As regards the inconsistencies and complexity of the current legislation, the Commission is proposing a single Directive which combines, by means of a recast, the IPPC Directive and six sectoral Directives.

In addition, a revision of certain provisions of the existing legislation is necessary in order to address the shortcomings in the actual application of BAT, the problems raised by certain unclear requirements (for instance on BAT-based permitting or permit review), the lack of provisions on enforcement and the limitations of the legislation in terms of meeting the objectives of the Thematic Strategies. Some of the main amendments of the legislation that are recommended are the following:

· clarification and strengthening of the concept of BAT;

· revision of the minimum emission limit values for Large Combustion Plants and installations producing titanium dioxide to align them with BAT standards;

· creation of a Committee to adapt existing non-essential technical requirements to scientific and technical progress or establish the type and format of the reporting by the Member States;

· introduction of provisions on inspection and environmental improvements;

· stimulating innovation and the development and deployment of new techniques;

· simplifying and clarifying certain provisions on permitting, monitoring and reporting to cut unnecessary administrative burdens;

· extending and clarifying the scope and provisions of the legislation to better contribute to the objectives of the Thematic Strategies.

The IA report is accessible on ec.europa.eu/environment/ippc/index.


14.

3) LEGAL ELEMENTS OF THE PROPOSAL305



Summary of the proposed action


The aim of the current proposal is to revise and merge seven separate existing Directives related to industrial emissions into a single Directive.

The use of the recasting technique makes it possible to combine in a single text both the substantive amendments proposed to the Directives and those of their original provisions which remain unchanged.

Furthermore, the proposal will strengthen or add certain provisions to ensure better implementation and enforcement of the legislation by national authorities with the aim of achieving a high level of environmental protection, while simplifying legislation and at the same time reducing unnecessary administrative burdens. Clearer provisions will allow better monitoring and enforcement of the legislation through Community actions.


15.

Legal basis



The primary objective of the Directive is the protection of the environment. This proposal is therefore based on Article 175 EC.320


Subsidiarity principle


The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the Community.


The objectives of the proposal cannot be sufficiently achieved by the Member States for the following reasons:3


The existing legislation sets minimum standards for the prevention and control of industrial emissions throughout the Community. This principle is maintained in the proposal. In addition, most industrial emissions (for instance to air or water) are of a transboundary nature. All Member States must therefore take measures in order that the risks to the population and the environment in each Member State can be reduced.


16.

Community action will better achieve the objectives of the proposal for the following reasons.324



The major thrust of this proposal is to amend and simplify existing legislation related to industrial emissions which applies minimum standards for the prevention and control of industrial emissions across the whole Community. Industrial emissions contribute substantially to overall emissions to air, water and soil as well as to the generation of waste and the use of energy. Industrial emissions generally also have substantial transboundary components, which means that pollutants emitted into the air or in water contribute to the pollution measured in other Member States. The scale of the problem demands Community-wide action. Individual Member States cannot solve the problems alone, and concerted action at the EU scale is required.


The proposal concentrates on simplifications to existing legislation and on the strengthening of some provisions to improve implementation by Member States and enforcement of the legislation through Community actions. The proposal leaves the means of implementation, enforcement and compliance to be decided by the appropriate Member State authorities, thus ensuring minimum standards of protection for the environment and for all citizens of the EU.


The proposal therefore complies with the subsidiarity principle.


17.

Proportionality principle



The proposal complies with the proportionality principle for the following reasons.331


The chosen legal instrument is a directive, as 10 the proposal aims to recast and simplify existing directives; and 11 it establishes objectives whilst leaving the details of implementation to the Member States.

332

The proposal introduces a number of innovations that will reduce the unnecessary financial and administrative burden, in particular by encouraging, at Member State level, a combined permitting of installations which are subject to different pieces of legislation at EU level, by simplifying the monitoring and reporting requirements and by moving towards a shared information system and electronic reporting on industrial emissions. In addition, certain reporting requirements will be repealed.


Although the proposal introduces more specific provisions on enforcement, compliance and permit reviews, it leaves sufficient flexibility to the authorities of the Member States to establish the most cost-effective implementation regimes to achieve the objectives of the legislation. Furthermore, the proposal will clarify the current scope of the legislation to avoid the present inconsistent and non-harmonized interpretations by the Member States. A limited number of additional sectors are proposed for inclusion in the legislation based on a thorough analysis of the impacts showing the necessity, the value added and the proportionality of such an extension.


The proposal therefore complies with the proportionality principle.


18.

Choice of instruments



Proposed instruments: directive.34

2

Other means would not be adequate for the following reasons:


The aim of the current proposal is to merge and simplify seven existing directives into a single instrument. Given this, and the fact that the existing legislation sets Community objectives while leaving the choice of measures for compliance to the Member States, the best instrument is a directive.


19.

4) BUDGETARY IMPLICATION409



The proposal has no implication for the Community budget.


20.

5) ADDITIONAL INFORMATION510



Simplification


The proposal provides for simplification of legislation and simplification of administrative procedures for public authorities (EU or national).512


The recast will simplify and streamline existing provisions. Redundant provisions and unnecessary obligations will be repealed, while reporting and monitoring requirements will be simplified by a move towards electronic reporting. This should assist Member States' actions to reduce unnecessary administrative burdens, since the largest savings come from changing implementation practices at Member State level. This reflects the nature of the legislation, which provides the framework and the principles rather than the details on implementation. 515


The proposal is included in the Commission's rolling programme for simplification of the acquis communautaire and its Work and Legislative Programme under the reference CLWP 2007/ENV/002.520


Repeal of existing legislation


The adoption of the proposal will lead to the repeal of seven existing Directives.


21.

Review/revision/sunset clause



The Commission will review the implementation of legislation and report every three years to the Council and the European Parliament.


22.

Correlation table



The Member States are required to communicate to the Commission the text of national provisions transposing the Directive as well as a correlation table between those provisions and this Directive.560


European Economic Area


The proposed act concerns an EEA matter and should therefore extend to the European Economic Area.570


Detailed explanation of the proposal

The scope of application of the present Directives has not been changed. The proposal applies to activities listed in Annex I (corresponding to the scope of the current IPPC Directive) and in Part 1 of Annex VII (corresponding to the scope of the current VOC Solvents Directive), to combustion plants, to waste incineration plants and waste co-incineration plants and to installations producing titanium dioxide. However, the present scope of Annex I has been slightly amended to include some additional activities such as combustion installations between 20 and 50 MW, the preservation of wood and wood products and the production of wood panels.

The proposal is structured in seven chapters. Chapter I is the general umbrella part setting common provisions applying to all industrial activities covered by this Directive. Chapter II covers activities set out in Annex I and lays down special provisions for those activities by amending the current requirements of the IPPC Directive. Chapters III to VI contain minimum technical requirements for large combustion plants, waste incineration plants, solvents installations and titanium dioxide installations, respectively. Chapter VII contains provisions on competent authorities, reporting by Member States, committee, penalties and the standard closing provisions.

23.

Comments on the Articles


The comments on the Articles only relate to those Articles which are new or where substantive changes have been introduced.

· Determination of permit conditions for activities listed in Annex I (Articles 14 to 17)

In order to achieve a high level of protection for the environment as a whole, the permit should include all the necessary measures and should also include emission limit values for polluting substances, appropriate requirements to protect the soil and groundwater as well as monitoring requirements. The conditions of the permit should be set on the basis of best available techniques.

In order to determine what is considered best available techniques and to limit the imbalances in the Community as regards the level of emissions of industrial activities, the Commission adopts the reference documents for the best available techniques, hereinafter 'BAT reference documents' as a result of an exchange of information with stakeholders.

A detailed analysis has revealed that there are significant shortcomings in the implementation of best available techniques due to vague provisions on BAT in the current legislation, the large degree of flexibility left for competent authorities to deviate from it in the permitting process and the unclear role of the BREFs. As a result, permits issued for implementing the IPPC Directive often include conditions that are not based on BAT as described in the BREFs with little, if any, justification for such deviation.

As a result of these shortcomings, the environmental benefits originally intended have not been delivered and distortions in the internal market remain significant.

In order to address these shortcomings, the proposal lays down provisions to strengthen and clarify the use of BAT. The proposal requires that BAT reference documents are the reference for setting permit conditions and that emission limit values do not exceed the emission levels associated with the best available techniques as described in those BAT reference documents.

In order to take into account certain specific circumstances, the proposal enables competent authorities to grant derogations to allow emission limit values to exceed the emission levels associated with the best available techniques as described in the BAT reference documents. However, such derogations should be based on well defined criteria and should not exceed the emission limit values set out in Chapters III to VI of this Directive. In addition, such derogations, together with their justification should be made available to the public.

Furthermore, in order for operators to test emerging techniques which could provide for higher level of environmental protection, the proposal introduces a possibility for the competent authority to grant temporary derogations from emission levels associated with the best available techniques as described in the BAT reference documents.

The proposal also introduces a new requirement to monitor periodically the soil and groundwater on the site of the installations in order to ensure that appropriate information is available to protect these media from contamination by dangerous substances.

· Provisions on compliance and increase environmental improvements for activities listed in Annex I (Articles 22, 24 and 25)

The provisions in the current acquis on compliance reporting, inspections and permit reviews are vague resulting in large variations between Member States in the application of the legislation, and consequent sub-optimal levels of environmental protection and distortion of the internal market.

The proposal therefore lays down more specific provisions to ensure an effective implementation and enforcement of this Directive. As results, a new provision is introduced to require operators to regularly report on compliance with permit conditions to the competent authority. Member States should also ensure that the operator and the competent authority take necessary measures in a case of non-compliance with this Directive.

The proposal also introduces a requirement for permit conditions be reconsidered and, where necessary, updated after a new or updated BAT Reference Document is adopted in order to take account of developments in the best available techniques or other changes regarding the operation of an installation.

Furthermore, the proposal introduces requirements for Member States to provide for a system of environmental inspections. Those new provisions are largely based on the Recommendation 2001/331/EC providing for minimum criteria for environmental inspections in the Member States.

Those changes introduced will help in securing and, in certain cases, speeding up implementation of BAT thereby contributing to the achievement of the objectives of the Thematic Strategies and reducing distortion of competition.

· Site closure and remediation for activities listed in Annex I (Article 23)

Industrial activities can lead to significant negative impacts on the quality of soil and groundwater due to the use, manufacture or release of dangerous substances. The provisions of the current acquis are vague on the requirement regarding site closure and remediation after cessation of activities.

In order to clarify these requirements and help achieving the objectives of the Thematic Strategy on Soil protection, the proposal requires that a baseline report is established by the operators to provide quantified information on the state of soil and groundwater contamination. Upon definitive cessation of activities, the operator is required to remediate the site and return to that state.

· Emission limit values for combustion plants (Articles 33 and 35, Parts 1 and 2 of Annex V)

Emissions to air from large combustion plants present a large share of total emissions of key pollutants and far exceed the objectives set out in the Thematic Strategy on Air Pollution. Without a further reduction of emissions from these plants, the positive health and environmental effects to be obtained from these objectives will not materialise. It is therefore necessary to set more stringent emission limit values, aligned with best available techniques, for certain categories of combustion plants and pollutants.

· Monitoring requirements for waste incineration plants and waste co-incineration plants (Article 43 and 35, Part 6 of Annex VI)

In order to simplify the legislation and reduce unnecessary administrative costs while not altering the level of environmental protection, the proposal introduces some further derogation to the current minimum requirements for monitoring of certain emissions generated by waste incineration plants and waste co-incineration plants. These derogations can be granted by the competent authority only under specific conditions laid down in the proposal.

· Emission limit values and reporting requirements for installations producing titanium dioxide (Articles 63 to 64, Parts 1, 3 and 4 of Annex VIII)

Installations producing titanium dioxide can give rise to significant pollution into air and water. In order to reduce these impacts, the proposal introduces some more stringent emission limit values, aligned with best available techniques, for certain polluting substances.

· Implementing measures

The Directive confers implementing powers on the Commission. The cases in which implementing powers have been conferred are specifically listed in each relevant article. The measures to be adopted by the Commission will be subject to the regulatory procedure with scrutiny in accordance with Articles 5a 12 to 13, and 7 of Decision 1999/468/EC.

The implementing measures will be used in particular to establish criteria for the granting of the derogation from the emission levels associated with the best available techniques as described in the BAT reference documents and to adapt the non-essential minimum requirements set out in Annexes V to VIII to scientific and technical progress.


24.

96/61/EC (adapted)


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