EN Official Journal of the European Union C 182/46

Opinion of the European Economic and Social Committee on the ‘Proposal for a Directive of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control) (Recast)’

COM(2007) 844 final — 2007/0286 (COD)

(2009/C 182/10)

Rapporteur: Mr BUFFETAUT

On 25 February 2008 the Council decided to consult the European Economic and Social Committee, under Article 175(1) of the Treaty establishing the European Community, on the

Proposal for a Directive of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control) (Recast)

COM(2007) 844 final — 2007/0286 (COD).

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 30 October 2008. The rapporteur was Mr BUFFETAUT.

At its 450th plenary session, held on 14 and 15 January 2009 (meeting of 14 January), the European Economic and Social Committee adopted the following opinion by 152 votes to two with four abstentions.

1. Introduction

1.1 The text submitted to the European Economic and Social Committee is presented as a recast of the existing directive. In fact, it is more than a simple review or tidying-up of the text currently in force. The Commission claims that this recast is part of a simplification drive under the Better Regulation heading — which some would question. The primary aims of the proposal are:

— environmental: effective protection of the environment by means of an integrated approach taking all environmental factors into account;

— economic: harmonisation of procedures and practices in order to prevent distortions of competition.

2. The Commission's objectives

2.1 The Commission recognises that polluting emissions have fallen over recent decades, but considers the reduction to be insufficient and wishes to go further in combating polluting emissions.

2.2 The IPPC Directive covers some 52 000 installations in the European Union and, in spite of the efforts made, emissions of pollutants still far exceed the objectives set out in the Thematic Strategy on Air Pollution.

2.3 The pollution generated by industrial activity contributes significantly to negative health and environmental impacts. About 83 % of sulphur dioxide, 34 % of oxides of nitrogen, 25 % of dioxide emissions and 23 % of mercury come from these installations (1). These emissions are not only emitted into the air, but also affect water and the soil. These activities are also major consumers of raw materials, water and energy and contribute to waste production. The integrated approach (IPPC), through the competent national authorities' procedure for issuing permits that govern waste from the businesses concerned, is therefore a valid means for tackling a reduction in pollution.

2.4 For the Commission, this approach must be based mainly of the use of Best Available Techniques (BAT). The principle is to use the most effective techniques to protect the environment in a given sector, provided that such techniques are commercially available and economically viable.

2.5 In order to facilitate this approach, the Commission is organising an information exchange on BAT with the Member States and other stakeholders in order to establish BAT reference documents (BREFs) indicating what is regarded as BAT at EU level for each industrial sector. Since the IPPC offices are in Seville, this has come to be known as the Seville procedure.

2.6 Moreover, some branches of industry (but some only) are further covered by sectoral directives, which set out operating conditions and minimum technical requirements. In particular, these directives lay down emission limit values for certain pollutants and are applicable without prejudice to the implementation of the IPPC Directive.

2.7 After conducting a number of studies and surveys, the Commission considered that the existing provisions needed to be strengthened in order to combat industrial emissions. It also judged that there are shortcomings in the current legislation that led both to unsatisfactory implementation of the directive and to difficulties in enforcing it.

2.8 The Commission therefore proposes to revise and combine seven separate directives into a single directive (known as the Industrial Emissions Directive), with the basic aim of:

— strengthening the best available technique concept;

— revising the emission limit values for large combustion plants;

— setting up a committee to adapt existing non-essential technical requirements to technical and scientific progress or define the reporting by the Member States;

— introducing new provisions on inspections;

— stimulating innovation and the deployment of new techniques;

— simplifying and clarifying certain provisions on permitting;

— extending and clarifying the scope of the directive;

— stimulating the taking into account of emerging techniques.

3. General comments

3.1 The three principles underpinning the current directive,

— an integrated approach to the impact of industrial activity

— use of the best available techniques

— the possibility of taking account of local conditions when laying down permit conditions,

meet with the agreement of the businesses concerned and reflect a comprehensive and seamless approach to improving the environmental performance of industrial sites.

3.2 While it is true that there are some differences between the Member States in the way the 1996 directive has been implemented, it should be borne in mind that full implementation is very recent (October 2007 for pre-existing installations) and that enough time has not yet elapsed to take proper stock of implementation. However, according to the Commission, evaluations of specific permits and, more broadly, of Member State practices, reveal numerous problems in implementation, due in particular to the unclear provisions of the existing directive. Again according to the Commission, all the consultations and forecasts suggest that the situation will not improve without a change in the legislation. It should be noted that implementing legislation is a matter for the Member States, and that mandatory compliance with permit conditions is incumbent upon the operators of the installations concerned.

3.3 BREFs have already been adopted and disseminated since 2001, but the translation of these documents into all the EU official languages has been very time-consuming. It has nevertheless been demonstrated through the implementation studies that not all national administrations have yet fully completed their tasks, although the responsibility, in the event of delayed or incomplete implementation, cannot be placed on the industries concerned alone if those permit conditions are not in line with BREFs. Consequently, more feedback from widespread implementation of BREFs throughout the EU should be welcomed since they are being used in very different ways.

3.4 All this may well explain the inadequacies noted, but it may also be wondered if it is not premature to undertake a significant recast of the directive. A number of Member States have issued operating permits late to existing installations, sometimes even after the deadlines set by the directives had expired.

3.5 Concern is however quite justified, since the emissions forecast data from the Member States suggests that implementation of the BATs, especially in the case of large combustion installations, will not be enough to enable the air pollution strategy objectives to be met.

3.6 In any case, no such recast can be undertaken without complying with ‘the principles of transparency, economic efficiency and cost-effectiveness, and fairness and solidarity in the distribution of effort between Member States’, to quote the words of the European Council.

4. Points involving specific difficulties

4.1 Role of BREFs

4.1.1 Until now, BREFs had a dual role:

— being the reference for defining what is considered as BAT when drawing up permits: BREFs are used as a reference source of information on multiple options on BATs meeting different site-specific situations. They represent the outcome of a multi-stakeholder approach on what to consider BAT, tailored to different types of processes from which the competent authority selected the most suitable standard,

— when under preparation, they provided a forum for exchanging information on the performance and evolution of techniques within the Union.

BATs were selected on the basis that this technical benchmark is achieved at a cost that does not threaten competitiveness for industry, this being implicit in the BAT definition which requires BAT to be ‘developed on a scale which allows implementation in the relevant industrial sector under economically and technically viable conditions [and] as long as they are reasonably accessible to the operator’ (Article 2.11 IPPC, 3(9 IED)). In the opposite case, like for emerging techniques not considered as BATs, these simultaneously represented best practice and state-of-the-art manufacturing processes, and offered a database of performances by various technologies and methods of operation in the branch of industry in question.

4.1.2 It is important to retain the current approach: BATs represent techniques that enable regulatory requirements to be met on a case-by-case basis and, among other objectives, industrial emissions to be monitored, protecting the environment while taking account of the costs and benefits of applying these techniques. Regulations must still be applicable to all at the same time throughout the Union, in order to avoid overall confusion concerning the review dates of the permits, the review dates of the sector BREFs, or the degree of conservatism of the sectors concerned. BATs must also help to reduce distortions of competition.

4.1.3 As part of the review, the role of BREFs needs to be clarified. They do not set emission levels, but must remain a benchmark and a tool for progress, making it possible, among other objectives, to comply with the emission limit values or environmental standards (water, air soil) defined elsewhere. It is worth recalling that, as stated in the 2005 BREF Outline and Guide, ‘BREFs do not prescribe techniques or emission limit values’. The definition of emission levels is a matter for EU economic and environmental policy. Lastly, these tools should not stand in the way of the necessary flexibility reflecting local and technical conditions.

4.2 The Seville process

4.2.1 The process is open and based on consultation, albeit not strictly democratic. The three ‘classic’ parties concerned are either represented, or can be: the Member States, technical experts and NGOs. However, the process remains ‘vertical’ and there is little contact between different branches of industry. BREF drafters change and (in the case of the Member States and the Commission) successive versions of the BREFs, or BREFs for different sectors, are rarely drafted by the same person. This represents a loss of substance and know-how in tackling certain pollutants, of either the ‘deadly’ (NOx, CO, CO2, etc.) or global (SOx, metals, dust, etc.) type, with regard to the techniques used, which should be forwarded to the Information Exchange Forum (IEF). The Seville process does however have the merit of regularly assessing the recorded performance of industrial sectors. If the Member States were a little more actively involved, they could profit from the process in order to make it more efficient, as they would be able to supply the data collected from their mandatory inspections.

4.3 Permit revisions

4.3.1 An installation may be covered by several BREFs at the same time. It must therefore be ensured that the periodic revision of BREFs and the pace at which permits are reconsidered, which may lead to changes in the binding requirements are compatible with installation break-even cycles. Here again, only legislative type regulation/programming is appropriate to the situation. Emerging techniques will fit in all the better if the issues are specified in advance. By the same token, BATs will be all the more effective if they can be progressively adjusted, but it would be inconceivable to impose investment changes at the same rate as BREF revisions. It is therefore up to the European legislator to establish a coherent calendar for progress, in the light of recorded performances and technical advances: such a task should not be delegated to the Seville process.

4.4 Emerging technique concept

The new text introduces the concept of an emerging technique. The defining feature of an emerging technique is that it needs to be tested in a real industrial setting; techniques may appear promising in the laboratory or even in pilot installations, but turn out to be unsatisfactory in normal use. Care must therefore be taken to ensure that the introduction of this concept into the text is clearly understood as a means of stimulating innovation in order to test new techniques, and not as a prelude to defining new references.

4.5 Integrated approach

The new text maintains the principle of adjustment according to local contexts and specific operating conditions, opting to use derogations. The system, even if it allows the competent authorities a degree of flexibility to take account of specific conditions, is more rigid that the previous one. It is important for the definition of Best Available Techniques to proceed from genuine and transparent discussions between local and national administrations and the industrialists concerned.

4.6 Incorporating the sectoral directives

It must be ensured that this does not result in a particularly laborious and complex text, which would run counter to the aim of simplification. The incorporation of sectoral directives in the proposal for a directive varies significantly from one directive to another, mostly with regard to the emission limit values, the main reason being to bring the emission limit values more closely into line with the BAT performance values. The objectives of clarity and coherence, for both Member States and the operators concerned, must remain a key aim of incorporation, as this will allow excessive administrative burdens to be reduced.

4.7 Comitology, Information Exchange Forum and the Seville IPPC office

The proposal for a directive suggests greater use of comitology, particularly in defining the criteria for derogating from BREFs. What role then will stakeholders play? And what role will the IEF and the Seville office have? It is to be feared that European industry will in the future be increasingly reluctant to supply the Seville IPPC office with relevant information on BATs, whereas this cooperation has so far been unanimously hailed as a European success story. Furthermore, comitology is a rather opaque procedure little to the liking of the European Parliament. The comitology procedure should therefore be restricted to the amendment of secondary elements of legislation.

4.8 Soil protection

The new text stipulates that sites must be returned to the state they were in before an installation began operating. The wide variety of soil types in Europe entails applying the subsidiarity principle, leaving more scope for the national authorities. The best option would therefore appear to be leave the site in the condition required for its approved future use.

4.9 Publishing of reports

Under the provisions of the text, the authorities are to publish reports within the two months following an inspection. This is too short, since the entrepreneur in question should be allowed enough time to submit comments and establish an action plan, and also for these aspects to be made public.

4.10 Application of the directive

The planned application of the directive in January 2016 seems too early in the light of experience with implementing the current IPPC Directive. Moreover, a number of draft European directives are currently being prepared and are scheduled to come into force in 2020 (revision of the directive on national emission ceilings, implementation of the ‘green package agreement’). The Göteborg Protocol is also currently under review by the United Nations Economic Commission for Europe in Geneva, which has set 2020 as the deadline for setting its new objectives.

In the interests of consistency, the proposal for a directive should be brought into line with the other environmental regulations, by proposing 2020 instead of 2016 as the date for its entry into force.

5. Conclusion

5.1 If the IPPC Directive has not been implemented satisfactorily, it would be helpful to do everything possible with the Member States and other stakeholders to bring about rapid improvements in the implementation of the existing directive, in order to provide a solid basis for recasting it, as envisaged in the Communication from the Commission and the 2008-2010 Action Plan on implementation of legislation on industrial emissions. The objectives of a revision of the text should be environmental and economic efficiency, transparency, consultations with the relevant stakeholders, a sound cost-benefit balance and compliance with the principle of equity and solidarity in sharing efforts among the Member States.

5.2 The IMPEL network could help to enhance the implementation of the existing directive, and official translation of the BREF documents into the EU languages should also help them to be better understood and consequently applied at national level. In cooperation with the Seville IPPC office, steps must be taken to ensure that diverging views are not built into the BREFs, as this would undermine the coherence and relevance of these documents at European level.

Brussels, 14 January 2009. The President of the European Economic and Social Committee Mario SEPI

(1) SEC(2007) 1679.