Common position (EC) No 52/2000

adopted by the Council on 9 November 2000

with a view to adopting Directive 2000/.../EC of the European Parliament and of the Council of ... on the limitation of emissions of certain pollutants into the air from large combustion plants

(2000/C 375/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the Economic and Social Committee(2),

Having consulted the Committee of the Regions,

Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),

Whereas:

(1) Council Directive 88/609/EEC of 24 November 1988 on the limitation of emissions of certain pollutants into the air from large combustion plants(4) has contributed to the reduction and control of atmospheric emissions from large combustion plants; it should be recast in the interests of clarity.

(2) The fifth environmental action programme(5) sets as objectives that the critical loads and levels of certain acidifying pollutants such as sulphur dioxide (SO2) and nitrogen oxides (NOx) should not be exceeded at any time and, as regards air quality, that all people should be effectively protected against recognised health risks from air pollution.

(3) All Member States have signed the Gothenburg Protocol of 1 December 1999 to the 1979 Convention of the United Nations Economic Commission for Europe (UNECE) on long-range transboundary air pollution to abate acidification, eutrophication and ground-level ozone, which includes, inter alia, commitments to reduce emissions of sulphur dioxide and oxides of nitrogen.

(4) The Commission has published a communication on a Community strategy to combat acidification in which the revision of Directive 88/609/EEC was identified as being an integral component of that strategy with the long term aim of reducing emissions of sulphur dioxide and nitrogen oxides sufficiently to bring depositions and concentrations down to levels below the critical loads and levels.

(5) In accordance with the principle of subsidiarity as set out in Article 5 of the Treaty, the objective of reducing acidifying emissions from large combustion plants cannot be sufficiently achieved by the Member States acting individually and unconcerted action offers no guarantee of achieving the desired objective. In view of the need to reduce acidifying emissions across the Community, it is more effective to take action at Community level.

(6) Existing large combustion plants are significant contributors to emissions of sulphur dioxide and nitrogen oxides in the Community and it is necessary to reduce these emissions. It is therefore necessary to adapt the approach to the different characteristics of the large combustion plant sector in the Member States.

(7) Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control(6) sets out an integrated approach to pollution prevention and control in which all the aspects of an installation's environmental performance are considered in an integrated manner. Combustion installations with a rated thermal input exceeding 50 MW are included within the scope of that Directive. Pursuant to Article 15(3) of that Directive an inventory of the principal emissions and sources responsible is to be published every three years by the Commission on the basis of data supplied by the Member States. Pursuant to Article 18 of that Directive, acting on a proposal from the Commission, the Council will set emission limit values in accordance with the procedures laid down in the Treaty for which the need for Community action has been identified, on the basis, in particular, of the exchange of information provided for in Article 16 of that Directive.

(8) Compliance with the emission limit values laid down by this Directive should be regarded as a necessary but not sufficient condition for compliance with the requirements of Directive 96/61/EC regarding the use of best available techniques. Such compliance may involve more stringent emission limit values, emission limit values for other substances and other media, and other appropriate conditions.

(9) Industrial experience in the implementation of techniques for the reduction of polluting emissions from large combustion plants has been acquired over a period of 15 years.

(10) The Protocol on heavy metals to the UNECE Convention on Long-range Transboundary Air Pollution recommends the adoption of measures to reduce heavy metals emitted by certain installations. It is known that benefits from reducing dust emissions by dust abatement equipment will provide benefits on reducing particle-bound heavy metal emissions.

(11) Installations for the production of electricity represent an important part of the large combustion plant sector.

(12) Directive 96/92/EC of the European Parliament and of the Council of 19 December 1996 concerning common rules for the internal market in electricity(7) is intended, inter alia, to have the effect of distributing new production capacity among new arrivals in the sector.

(13) The Community is committed to a reduction of carbon dioxide emissions. Where it is feasible the combined production of heat and electricity represents a valuable opportunity for significantly improving overall efficiency in fuel use.

(14) A significant increase in the use of natural gas for producing electricity is already under way and is likely to continue, in particular through the use of gas turbines.

(15) In view of the increase in energy production from biomass, specific emission standards for this fuel are justified.

(16) The Council resolution of 24 February 1997 on a Community strategy for waste management(8) emphasises the need for promoting waste recovery and states that appropriate emission standards should apply to the operation of facilities in which waste is incinerated in order to ensure a high level of protection for the environment.

(17) Industrial experience has been gained concerning techniques and equipment for the measurement of the principal pollutants emitted by large combustion plants. The European Committee for Standardisation (CEN) has undertaken work with the aim of providing a framework securing comparable measurement results within the Community and guaranteeing a high level of quality of such measurements.

(18) There is a need to improve knowledge concerning the emission of the principal pollutants from large combustion plants. In order to be genuinely representative of the level of pollution of an installation, such information should also be associated with knowledge concerning its energy consumption.

(19) This Directive is without prejudice to the time limits within which the Member States must transpose and implement Directive 88/609/EEC,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

This Directive shall apply to combustion plants, the rated thermal input of which is equal to or greater than 50 MW, irrespective of the type of fuel used (solid, liquid or gaseous).

Article 2

For the purpose of this Directive:

1. "emission" means the discharge of substances from the combustion plant into the air;

2. "waste gases" means gaseous discharges containing solid, liquid or gaseous emissions; their volumetric flow rates shall be expressed in cubic metres per hour at standard temperature (273 K) and pressure (101,3 kPa) after correction for the water vapour content, hereinafter referred to as "Nm3/h";

3. "emission limit value" means the permissible quantity of a substance contained in the waste gases from the combustion plant which may be discharged into the air during a given period; it shall be calculated in terms of mass per volume of the waste gases expressed in mg/Nm3, assuming an oxygen content by volume in the waste gas of 3 % in the case of liquid and gaseous fuels, 6 % in the case of solid fuels and 15 % in the case of gas turbines;

4. "rate of desulphurisation" means the ratio of the quantity of sulphur which is not emitted into the air at the combustion plant site over a given period to the quantity of sulphur contained in the fuel which is introduced into the combustion plant facilities and which is used over the same period;

5. "operator" means any natural or legal person who operates the combustion plant, or who has or has been delegated decisive economic power over it;

6. "fuel" means any solid, liquid or gaseous combustible material used to fire the combustion plant with the exception of waste covered by Council Directive 89/369/EEC of 8 June 1989 on the prevention of air pollution from new municipal waste incineration plants(9), Council Directive 89/429/EEC of 21 June 1989 on the reduction of air pollution from existing municipal waste incineration plants(10) and Council Directive 94/67/EC of 16 December 1994 concerning the incineration of hazardous waste(11) or any subsequent Community act repealing and replacing one or more of these Directives;

(7) "combustion plant" means any technical apparatus in which fuels are oxidised in order to use the heat thus generated.

This Directive shall apply only to combustion plants designed for production of energy with the exception of those which make direct use of the products of combustion in manufacturing processes. In particular, this Directive shall not apply to the following combustion plants:

(a) plants in which the products of combustion are used for the direct heating, drying, or any other treatment of objects or materials, for example reheating furnaces, furnaces for heat treatment;

(b) post-combustion plants i.e. any technical apparatus designed to purify the waste gases by combustion which is not operated as an independent combustion plant;

(c) facilities for the regeneration of catalytic cracking catalysts;

(d) facilities for the conversion of hydrogen sulphide into sulphur;

(e) reactors used in the chemical industry;

(f) coke battery furnaces;

(g) cowpers;

(h) any technical apparatus used in the propulsion of a vehicle, ship or aircraft;

(i) gas turbines used on offshore platforms;

(j) gas turbines licensed before ...(12) or which in the view of the competent authority are the subject of a full request for a licence before ...(13) provided that the plant is put into operation no later than ...(14) without prejudice to Article 8(1) and Annex IX(A) and (B).

Plants powered by diesel, petrol and gas engines shall not be covered by this Directive.

Where two or more separate new plants are installed in such a way that, taking technical and economic factors into account, their waste gases could, in the judgment of the competent authorities, be discharged through a common stack, the combination formed by such plants shall be regarded as a single unit;

8. "multi-fuel firing unit" means any combustion plant which may be fired simultaneously or alternately by two or more types of fuel;

9. "new plant" means any combustion plant for which the original construction licence or, in the absence of such a procedure, the original operating licence was granted on or after 1 July 1987;

10. "existing plant" means any combustion plant for which the original construction licence or, in the absence of such a procedure, the original operating licence was granted before 1 July 1987;

11. "biomass" means products consisting of any whole or part of a vegetable matter from agriculture or forestry which can be used as a fuel for the purpose of recovering its energy content and the following waste used as a fuel:

(a) vegetable waste from agriculture and forestry;

(b) vegetable waste from the food processing industry;

(c) vegetable waste from virgin pulp production and from production of paper from pulp;

(d) cork waste;

(e) wood waste with the exception of wood waste which may contain halogenated organic compounds or heavy metals as a result of treatment with wood preservatives or coating, and which includes in particular such wood waste originating from construction and demolition waste;

12. "gas turbine" means any rotating machine which converts thermal energy into mechanical work, consisting mainly of a compressor, a thermal device in which fuel is oxidised in order to heat the working fluid, and a turbine.

Article 3

1. Not later than 1 July 1990 Member States shall draw up appropriate programmes for the progressive reduction of total annual emissions from existing plants. The programmes shall set out the timetables and the implementing procedures.

2. In accordance with the programmes mentioned in paragraph 1, Member States shall continue to comply with the emission ceilings and with the corresponding percentage reductions laid down for sulphur dioxide in Annex I, columns 1 to 6, and for oxides of nitrogen in Annex II, columns 1 to 4, by the dates specified in those Annexes, until the implementation of the provisions of Article 4 applying to existing plants.

3. When the programmes are being carried out, Member States shall also determine the total annual emissions in accordance with Annex IX(C).

4. If a substantial and unexpected change in energy demand or in the availability of certain fuels or certain generating installations creates serious technical difficulties for the implementation by a Member State of its programme drawn up under paragraph 1, the Commission shall, at the request of the Member State concerned and taking into account the terms of the request, take a decision to modify, for that Member State, the emission ceilings and/or the dates set out in Annexes I and II and communicate its decision to the Council and to the Member States. Any Member State may within three months refer the decision of the Commission to the Council. The Council, acting by a qualified majority, may within three months take a different decision.

Article 4

1. Member States shall take appropriate measures to ensure that all licences for the construction or, in the absence of such a procedure, for the operation of new plants which in the view of the competent authority are the subject of a full request for a licence before ...(15), provided that the plant is put into operation no later than ...(16), contain conditions relating to compliance with the emission limit values laid down in part A of Annexes III to VII in respect of sulphur dioxide, nitrogen oxides and dust.

2. Member States shall take appropriate measures to ensure that all licences for the construction or, in the absence of such a procedure, for the operation of new plants, other than those covered by paragraph 1, contain conditions relating to compliance with the emission limit values laid down in part B of Annexes III to VII in respect of sulphur dioxide, nitrogen oxides and dust.

3. Without prejudice to Directive 96/61/EC and Council Directive 96/62/EC of 27 September 1996 on ambient air quality assessment and management(17), Member States shall, by 1 January 2008 at the latest, achieve significant emission reductions by:

(a) taking appropriate measures to ensure that all licences for the operation of existing plants contain conditions relating to compliance with the emission limit values established for new plants referred to in paragraph 1; or

(b) ensuring that existing plants are subject to the national emission reduction plan referred to in paragraph 6;

and, where appropriate, applying Articles 5, 6, 8 and 9.

4. Without prejudice to Directives 96/61/EC and 96/62/EC, existing plants may be exempted from compliance with the emission limit values referred to in paragraph 3 and from their inclusion in the national emission reduction plan on the following conditions:

(a) the operator of an existing plant undertakes, in a written declaration submitted by 30 June 2004 at the latest to the competent authority, not to operate the plant for more than 20000 hours starting from 1 January 2008;

(b) the operator is required to submit each year to the competent authority a record of the used and unused time allowed for the plants' remaining operational life.

5. Member States may require compliance with emission limit values and time limits for implementation which are more stringent than those set out in paragraphs 1, 2, 3 and 4 and in Article 11. They may include other pollutants, and they may impose additional requirements or adaptation of plant to technical progress.

6. Member States may, without prejudice to this Directive and Directive 96/61/EC, and taking into consideration the costs and benefits as well as their obligations under Directive EC/.../2000 of the European Parliament and of the Council of ... on national emission ceilings(18) and Directive 96/62/EC, define and implement a national emission reduction plan for existing plants, taking into account, inter alia, compliance with the ceilings as set out in Annexes I and II.

The national emission reduction plan shall reduce the total annual emissions of nitrogen oxides (NOx), sulphur dioxide (SO2) and dust from existing plants to the levels that would have been achieved by applying the emission limit values referred to in paragraph 3 to the existing plants in operation in the year 2000, (including those existing plants undergoing a rehabilitation plan in 2000, approved by the competent authority, to meet emission reductions required by national legislation) on the basis of each plant's actual annual operating time, fuel used and thermal input, averaged over the last five years of operation up to and including 2000.

The closure of a plant included in the national emission reduction plan shall not result in an increase in the total annual emissions from the remaining plants covered by the plan.

The national emission reduction plan may under no circumstances exempt a plant from the provisions laid down in relevant Community legislation, including, inter alia, Directive 96/61/EC.

The following conditions shall apply to national emission reduction plans:

(a) the plan shall comprise objectives and related targets, measures and timetables for reaching these objectives and targets, and a monitoring mechanism;

(b) Member States shall communicate their national emission reduction plan to the Commission no later than ...(19);

(c) Within six months of the communication referred to in point (b) the Commission shall evaluate whether or not the plan meets the requirements of this paragraph. When the Commission considers that this is not the case, it shall inform the Member State and within the subsequent three months the Member State shall communicate any measures it has taken in order to ensure that the requirements of this paragraph are met;

(d) The Commission shall, no later than ...(20), develop guidelines to assist Member States in the preparation of their plans.

7. Not later than 31 December 2004 and in the light of progress towards protecting human health and attaining the Community's environmental objectives for acidification and for air quality pursuant to Directive 96/62/EC, the Commission shall submit a report to the European Parliament and the Council in which it shall assess:

(a) the need for further measures;

(b) the cost-effectiveness and costs and advantages of further emission reductions in the combustion plants sector in Member States compared to other sectors;

(c) the technical and economic feasibility of such emission reductions;

(d) the effects of both the standards set for the large combustion plants sector including the provisions for indigenous solid fuels, and the competition situation in the energy market, on the environment and the internal market;

(e) any national emission reduction plans provided by Member States in accordance with paragraph 6.

8. The report referred to in paragraph 7 shall, as appropriate, be accompanied by related proposals, having regard to Directive 96/61/EC.

Article 5

By way of derogation from Annex III:

1. Plants, of a rated thermal input equal to or greater than 400 MW, which do not operate more than 2200 hours a year (rolling average over a period of five years), shall be subject to a limit value for sulphur dioxide emissions of 800 mg/Nm3.

This provision shall not apply to new plants for which the licence is granted pursuant to Article 4(2).

2. Plants which burn indigenous solid fuel, where the emission limit value set for sulphur dioxide for such plants cannot be met, owing to the particular nature of the fuel, without using excessively expensive technology, may exceed the limit values laid down in Annex III. However, such plants shall at least comply with Annex VIII.

3. Until 31 December 1999, the Kingdom of Spain may authorise new power plants with a rated thermal input equal to or greater than 500 MW burning indigenous or imported solid fuels, commissioned before the end of 2005 and complying with the following requirements:

(a) in the case of imported solid fuels, a sulphur dioxide emission limit value of 800 mg/Nm3;

(b) in the case of indigenous solid fuels, at least a 60 % rate of desulphurisation,

provided that the total authorised capacity of such plants to which this derogation applies does not exceed:

- 2000 MWe in the case of plants burning indigenous solid fuels,

- in the case of plants burning imported solid fuels either 7500 MWe or 50 % of all the new capacity of all plants burning solid fuels authorised up to 31 December 1999, whichever is the lower.

Article 6

Member States may authorise plants burning indigenous lignite to exceed the emission limit values fixed in accordance with Article 4 if, notwithstanding the application of best available technology not entailing excessive costs, major difficulties connected with the nature of the lignite so require and provided that lignite is an essential source of fuel for the plants.

The Commission shall immediately be informed of such cases, which shall be the subject of consultation with the Commission on the appropriate measures to be taken.

This provision shall not apply to new plants for which the licence is granted pursuant to Article 4(2).

Article 7

In the case of new plants for which the licence is granted pursuant to Article 4(2) or plants covered by Article 11, Member States shall ensure that the technical and economic feasibility of providing for the combined generation of heat and power is examined. Where this feasibility is confirmed, bearing in mind the market and the distribution situation, installations shall be developed accordingly.

Article 8

1. Member States shall ensure that provision is made in the licences or permits referred to in Article 4 for procedures relating to malfunction or breakdown of the abatement equipment. In case of a breakdown the competent authority shall in particular require the operator to reduce or close down operations if a return to normal operation is not achieved within 24 hours, or to operate the plant using low polluting fuels. In any case the competent authority shall be notified within 48 hours. In no circumstances shall the cumulative duration of unabated operation in any 12-month period exceed 120 hours. The competent authority may allow exceptions to the limits of 24 hours and 120 hours above in cases where, in their judgment:

(a) there is an overriding need to maintain energy supplies, or

(b) the plant with the breakdown would be replaced for a limited period by another plant which would cause an overall increase in emissions.

2. The competent authority may allow a suspension for a maximum of six months from the obligation to comply with the emission limit values provided for in Article 4 for sulphur dioxide in respect of a plant which to this end normally uses low-sulphur fuel, in cases where the operator is unable to comply with these limit values because of an interruption in the supply of low-sulphur fuel resulting from a serious shortage. The Commission shall immediately be informed of such cases.

3. The competent authority may allow a derogation from the obligation to comply with the emission limit values provided for in Article 4 in cases where a plant which normally uses only gaseous fuel, and which would otherwise need to be equipped with a waste gas purification facility, has to resort exceptionally, and for a period not exceeding 10 days except where there is an overriding need to maintain energy supplies, to the use of other fuels because of a sudden interruption in the supply of gas. The competent authority shall immediately be informed of each specific case as it arises. Member States shall inform the Commission immediately of the cases referred to in this paragraph.

Article 9

1. In the case of plants with a multi-firing unit involving the simultaneous use of two or more fuels, when granting the licence referred to in Article 4(1) or (2), and in the case of such plants covered by Articles 4(3) or 11, the competent authority shall set the emission limit values as follows:

(a) firstly by taking the emission limit value relevant for each individual fuel and pollutant corresponding to the rated thermal input of the combustion plant as given in Annexes III to VII,

(b) secondly by determining fuel-weighted emission limit values, which are obtained by multiplying the above individual emission limit value by the thermal input delivered by each fuel, the product of multiplication being divided by the sum of the thermal inputs delivered by all fuels,

(c) thirdly by aggregating the fuel-weighted limit values.

2. In multi-firing units using the distillation and conversion residues from crude-oil refining for own consumption, alone or with other fuels, the provisions for the fuel with the highest emission limit value (determinative fuel) shall apply, notwithstanding paragraph 1, if during the operation of the combustion plant the proportion contributed by that fuel to the sum of the thermal inputs delivered by all fuels is at least 50 %.

Where the proportion of the determinative fuel is lower than 50 %, the emission limit value is determined on a pro rata basis of the heat input supplied by the individual fuels in relation to the sum of the thermal inputs delivered by all fuels as follows:

(a) firstly by taking the emission limit value relevant for each individual fuel and pollutant corresponding to the rated heat input of the combustion plant as given in Annexes III to VII,

(b) secondly by calculating the emission limit value of the determinative fuel (fuel with the highest emission limit value according to Annexes III to VII and, in the case of two fuels having the same emission limit value, the fuel with the higher thermal input); this value is obtained by multiplying the emission limit value laid down in Annexes III to VII for that fuel by a factor of two, and subtracting from this product the emission limit value of the fuel with the lowest emission limit value,

(c) thirdly by determining the fuel-weighted emission limit values, which are obtained by multiplying the calculated fuel emission limit value by the thermal input of the determinative fuel and the other individual emission limit values by the thermal input delivered by each fuel, the product of multiplication being divided by the sum of the thermal inputs delivered by all fuels,

(d) fourthly by aggregating the fuel-weighted emission limit values.

3. As an alternative to paragraph 2, the following average emission limit values for sulphur dioxide may be applied (irrespective of the fuel combination used):

(a) for plants referred to in Article 4(1) and (3): 1000 mg/Nm3, averaged over all such plants within the refinery;

(b) for new plants referred to in Article 4(2): 600 mg/Nm3, averaged over all such plants within the refinery, with the exception of gas turbines.

The competent authorities shall ensure that the application of this provision does not lead to an increase in emissions from existing plants.

4. In the case of plants with a multi-firing unit involving the alternative use of two or more fuels, when granting the licence referred to in Article 4(1) and (2), and in the case of such plants covered by Articles 4(3) or 11, the emission limit values set out in Annexes III to VII corresponding to each fuel used shall be applied.

Article 10

Waste gases from combustion plants shall be discharged in controlled fashion by means of a stack. The licence referred to in Article 4 and licences for combustion plants covered by Article 11 shall lay down the discharge conditions. The competent authority shall in particular ensure that the stack height is calculated in such a way as to safeguard health and the environment.

Article 11

Where a combustion plant is extended by at least 50 MW, the emission limit values as set in part B of Annexes III to VII shall apply to the new part of the plant and shall be fixed in relation to the thermal capacity of the entire plant. This provision shall not apply in the cases referred to in Article 9(2) and (3).

Where the operator of a combustion plant is envisaging a change according to Articles 2(10)(b) and 12(2) of Directive 96/61/EC, the emission limit values as set out in part B of Annexes III to VII in respect of sulphur dioxide, nitrogen oxides and dust shall apply.

Article 12

In the case of construction of combustion plants which are likely to have significant effects on the environment in another Member State, the Member States shall ensure that all appropriate information and consultation takes place, in accordance with Article 7 of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment(21).

Article 13

Member States shall take the necessary measures to ensure the monitoring, in accordance with Annex IX(A), of emissions from the combustion plants covered by this Directive and of all other values required for the implementation of this Directive. Member States may require that such monitoring shall be carried out at the operator's expense.

Article 14

Member States shall take appropriate measures to ensure that the operator informs the competent authorities within reasonable time limits about the results of the continuous measurements, the checking of the measuring equipment, the individual measurements and all other measurements carried out in order to assess compliance with this Directive.

Article 15

1. In the event of continuous measurements, the emission limit values set out in part A of Annexes III to VII shall be regarded as having been complied with if the evaluation of the results indicates, for operating hours within a calendar year, that:

(a) none of the calendar monthly mean values exceeds the emission limit values; and

(b) in the case of:

(i) sulphur dioxide and dust: 97 % of all the 48-hourly mean values do not exceed 110 % of the emission limit values,

(ii) nitrogen oxides: 95 % of all the 48-hourly mean values do not exceed 110 % of the emission limit values.

The periods referred to in Article 8 as well as start-up and shut-down periods shall be disregarded.

2. In cases where only discontinuous measurements or other appropriate procedures for determination are required, the emission limit values set out in Annexes III to VII shall be regarded as having been complied with if the results of each of the series of measurements or of the other procedures defined and determined according to the rules laid down by the competent authorities do not exceed the emission limit values.

3. In the cases referred to in Article 5(2) and (3), the rates of desulphurisation shall be regarded as having been complied with if the evaluation of measurements carried out pursuant to Annex IX, point A.3, indicates that all of the calendar monthly mean values or all of the rolling monthly mean values achieve the required desulphurisation rates.

The periods referred to in Article 8 as well as start-up and shut-down periods shall be disregarded.

4. For new plants for which the licence is granted pursuant to Article 4(2), the emission limit values shall be regarded, for operating hours within a calendar year, as complied with if:

(a) no validated daily average value exceeds the relevant figures set out in part B of Annexes III to VII, and

(b) 95 % of all the validated hourly average values over the year do not exceed 200 % of the relevant figures set out in part B of Annexes III to VII.

The "validated average values" are determined as set out in point A.6 of Annex IX.

The periods referred to in Article 8 as well as start up and shut down periods shall be disregarded.

Article 16

1. Member States shall, not later than 31 December 1990, inform the Commission of the programmes drawn up in accordance with Article 3(1).

At the latest one year after the end of the different phases for reduction of emissions from existing plants, the Member States shall forward to the Commission a summary report on the results of the implementation of the programmes.

An intermediate report is required as well in the middle of each phase.

2. The reports referred to in paragraph 1 shall provide an overall view of:

(a) all the combustion plants covered by this Directive,

(b) emissions of sulphur dioxide, and oxides of nitrogen expressed in tonnes per annum and as concentrations of these substances in the waste gases,

(c) measures already taken or envisaged with a view to reducing emissions, and of changes in the choice of fuel used,

(d) changes in the method of operation already made or envisaged,

(e) definitive closures of combustion plants already effected or envisaged, and

(f) where appropriate, the emission limit values imposed in the programmes in respect of existing plants.

When determining the annual emissions and concentrations of pollutants in the waste gases, Member States shall take account of Articles 13, 14 and 15.

3. Member States applying Article 5 shall report thereon annually to the Commission.

Article 17

The Member States shall determine the penalties applicable to breaches of the national provisions adopted pursuant to this Directive. The penalties thus provided for shall be effective, proportionate and dissuasive.

Article 18

1. Directive 88/609/EEC shall be repealed with effect from ...(22), without prejudice to the obligations of Member States concerning the time limits for transposition and application of that Directive listed in Annex X hereto.

2. References to Directive 88/609/EEC shall be construed as references to this Directive and shall be read in accordance with the correlation table in Annex XI hereto.

Article 19

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before ...(23). They shall forthwith inform the Commission thereof.

When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2. For existing plant, and for new plant for which a licence is granted pursuant to Article 4(1), the provisions of point A.2 of Annex IX shall be applied from ...(24).

3. Member States shall communicate to the Commission the texts of the provisions of national law which they adopt in the field covered by this Directive.

Article 20

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 21

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

For the Council

The President

(1) OJ C 300, 29.9.1998, p. 6.

(2) OJ C 101, 12.4.1999, p. 55.

(3) Opinion of the European Parliament of 14 April 1999 (OJ C 219, 30.7.1999, p. 175), Council Common Position of 9 November 2000 and Decision of the European Parliament of ... (not yet published in the Official Journal).

(4) OJ L 336, 7.12.1988, p. 1. Directive as last amended by Council Directive 94/66/EC (OJ L 337, 24.12.1994, p. 83).

(5) OJ C 138, 17.5.1993, p. 1.

(6) OJ L 257, 10.10.1996, p. 26.

(7) OJ L 27, 30.1.1997, p. 20.

(8) OJ C 76, 11.3.1997, p. 1.

(9) OJ L 163, 14.6.1989, p. 32.

(10) OJ L 203, 15.7.1989, p. 50.

(11) OJ L 365, 31.12.1994, p. 34.

(12) Twelve months from the date of entry into force of this Directive.

(13) Twelve months from the date of entry into force of this Directive.

(14) Twenty-four months from the date of entry into force of this Directive.

(15) Twelve months from the date of entry into force of this Directive.

(16) Twenty-four months from the date of entry into force of this Directive.

(17) OJ L 296, 21.11.1996, p. 55.

(18) See p. of this Official Journal.

(19) Twenty-four months from the date of entry into force of this Directive.

(20) Twelve months from the date of entry into force of this Directive.

(21) OJ L 175, 5.7.1985, p. 40. Directive as last amended by Council Directive 97/11/EC (OJ L 73, 14.3.1997, p. 5).

(22) Twelve months from the date of entry into force of this Directive.

(23) Twelve months from the date of entry into force of this Directive.

(24) Three years from the date of entry into force of this Directive.

ANNEX I

CEILINGS AND REDUCTION TARGETS FOR EMISSIONS OF SO2 FROM EXISTING PLANTS((Additional emissions may arise from capacity authorised on or after 1 July 1987.))((Emissions coming from combustion plants authorised before 1 July 1987 but not yet in operation before that date and which have not been taken into account in establishing the emission ceilings fixed by this Annex shall either comply with the requirements established by this Directive for new plants or be accounted for in the overall emissions from existing plants that must not exceed the ceilings fixed in this Annex.))

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ANNEX II

CEILINGS AND REDUCTION TARGETS FOR EMISSIONS OF NOx FROM EXISTING PLANTS((Additional emissions may arise from capacity authorised on or after 1 July 1987.))((Emissions coming from combustion plants authorised before 1 July 1987 but not yet in operation before that date and which have not been taken into account in establishing the emission ceilings fixed by this Annex shall either comply with the requirements established by this Directive for new plants or be accounted for in the overall emissions from existing plants that must not exceed the ceilings fixed in this Annex.))

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ANNEX III

EMISSION LIMIT VALUES FOR SO2

Solid fuel

A. SO2 emission limit values expressed in mg/Nm3 (O2 content 6 %) to be applied by new and existing plants pursuant to Article 4(1) and 4(3) respectively:

>PIC FILE= "C_2000375EN.002302.EPS">

B.

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ANNEX IV

EMISSION LIMIT VALUES FOR SO2

Liquid fuels

A. SO2 emission limit values expressed in mg/Nm3 (O2 content 3 %) to be applied by new and existing plants pursuant to Article 4(1) and 4(3), respectively:

>PIC FILE= "C_2000375EN.002402.EPS">

B. SO2 emission limit values expressed in mg/Nm3 (O2 content 3 %) to be applied by new plants pursuant to Article 4(2) with the exception of gas turbines:

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In the case of two installations with a rated thermal input of 250 MWth on Crete and Rhodes, to be licensed before 31 December 2007, the emission limit value of 1700 mg/Nm3 shall apply.

ANNEX V

EMISSION LIMIT VALUES FOR SO2

Gaseous fuels

A. SO2 emission limit values expressed in mg/Nm3 (O2 content 3 %) to be applied by new and existing plants pursuant to Article 4(1) and 4(3), respectively:

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B. SO2 emission limit values expressed in mg/Nm3 (O2 content 3 %) to be applied by new plants pursuant to Article 4(2):

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ANNEX VI

EMISSION LIMIT VALUES FOR NOX (measured as NO2)

A. NOx emission limit values expressed in mg/Nm3 (O2 content 6 % for solid fuels, 3 % for liquid and gaseous fuels) to be applied by new and existing plants pursuant to Article 4(1) and 4(3), respectively:

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B. NOx emission limit values expressed in mg/Nm3 to be applied by new plants pursuant to Article 4(2) with the exception of gas turbines

Solid fuels (O2 content 6 %)

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Liquid fuels (O2 content 3 %)

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In the case of two installations with a rated thermal input of 250 MWth on Crete and Rhodes, to be licensed before 31 December 2007, the emission limit value of 400 mg/Nm3 shall apply.

Gaseous fuels (O2 content 3 %)

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Gas turbines

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Gas turbines for emergency use that operate less than 500 hours per year are excluded from these limit values. The operator of such plants is required to submit each year to the competent authority a record of such used time.

Notes

(1) Natural gas is naturally occurring methane with not more than 20 % (by volume) of inerts and other constituents.

(2) 75 mg/Nm3 in the following cases, where the efficiency of the gas turbine is determined at ISO base load conditions:

- gas turbines, used in combined heat and power systems having an overall efficiency greater than 75 %;

- gas turbines used in combined cycle plants having an annual average overall electrical efficiency greater than 55 %;

- gas turbines for mechanical drives.

For single cycle gas turbines not falling into any of the above categories, but having an efficiency greater than 35 % - determined at ISO base load conditions - the emission limit value shall be 50*η/35 where is the gas turbine efficiency expressed as a percentage (and at ISO base load conditions).

(3) This emission limit value only applies to gas turbines firing light and middle distillates.

ANNEX VII

EMISSION LIMIT VALUES FOR DUST

A. Dust emission limit values expressed in mg/Nm3 (O2 content 6 % for solid fuels, 3 % for liquid and gaseous fuels) to be applied by new and existing plants pursuant to Article 4(1) and 4(3), respectively:

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B. Dust emission limit values expressed in mg/Nm3 to be applied by new plants, pursuant to Article 4(2), with the exception of gas turbines:

Solid fuels (O2 content 6 %)

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Liquid fuels (O2 content 3 %)

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In the case of two installations with a rated thermal input of 250 MWth on Crete and Rhodes, to be licensed before 31 December 2007, the emission limit value of 50 mg/Nm3 shall apply.

Gaseous fuels (O2 content 3 %)

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ANNEX VIII

RATES OF DESULPHURISATION

(Pursuant to Article 5(2))

A. Rates of desulphurisation for new and existing plants pursuant to Article 4(1) and 4(3), respectively:

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B. Rates of desulphurisation for new plants pursuant to Article 4(2):

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NB:

Installations which achieve 300 mg/Nm3 SO2 are exempt from application of the relevant rate of desulphurisation.

ANNEX IX

METHODS OF MEASUREMENT OF EMISSIONS

A. PROCEDURES FOR MEASURING AND EVALUATING EMISSIONS FROM COMBUSTION PLANTS

1. Until ...(1)

Concentrations of SO2 and dust and NOx shall be measured continuously in the case of new plants for which a licence is granted pursuant to Article 4(1) with a rated thermal input of more than 300 MW. However, monitoring of SO2 and dust may be confined to discontinuous measurements or other appropriate determination procedures in cases where such measurements or procedures, which must be verified and approved by the competent authorities, may be used to obtain concentration.

In the case of new plants for which a licence is granted pursuant to Article 4(1) not covered by the first subparagraph, the competent authorities may require continuous measurements of those three pollutants to be carried out where considered necessary. Where continuous measurements are not required, discontinuous measurements or appropriate determination procedures as approved by the competent authorities shall be used regularly to evaluate the quantity of the abovementioned substances present in the emissions.

2. From ...(2) and without prejudice to Article 19(2)

Competent authorities shall require continuous measurements of concentrations of SO2, NOx, and dust from waste gases from each combustion plant with a rated thermal input of 100 MW or more.

By way of derogation from the first subparagraph, continuous measurements may not be required in the following cases:

- for combustion plants with a life span of less than 10000 operational hours,

- for SO2 and dust from natural gas burning boilers or from gas turbines firing natural gas,

- for SO2 from gas turbines or boilers firing oil with known sulphur content in cases where there is no desulphurisation equipment,

- for SO2 from biomass firing boilers if the operator can prove that the SO2 emissions can under no circumstances be higher than the prescribed emission limit values.

Where continuous measurements are not required, discontinuous measurements shall be required at least every six months. As an alternative, appropriate determination procedures, which must be verified and approved by the competent authorities, may be used to evaluate the quantity of the abovementioned pollutants present in the emissions. Such procedures shall use relevant CEN standards as soon as they are available. If CEN standards are not available ISO standards or national or international standards, which will ensure the provision of data of an equivalent scientific quality, shall apply.

3. In the case of plants which must comply with the desulphurisation rates fixed by Article 5(2) and (3), the requirements concerning SO2 emission measurements established under paragraph 2 of this point shall apply. Moreover, the sulphur content of the fuel which is introduced into the combustion plant facilities must be regularly monitored.

4. The competent authorities shall be informed of substantial changes in the type of fuel used or in the mode of operation of the plant. They shall decide whether the monitoring requirements laid down in point 2 are still adequate or require adaptation.

5. The continuous measurements carried out in compliance with point 2 shall include the relevant process operation parameters of oxygen content, temperature, pressure and water vapour content. The continuous measurement of the water vapour content of the exhaust gases shall not be necessary, provided that the sampled exhaust gas is dried before the emissions are analysed.

Representative measurements, i.e. sampling and analysis, of relevant pollutants and process parameters as well as reference measurement methods to calibrate automated measurement systems shall be carried out in accordance with CEN standards as soon as they are available. If CEN standards are not available ISO standards or national or international standards, which will ensure the provision of data of an equivalent scientific quality, shall apply.

Continuous measuring systems shall be subject to control by means of parallel measurements with the reference methods at least every year.

6. The values of the 95 % confidence intervals of a single measured result shall not exceed the following percentages of the emission limit values:

- sulphur dioxide: 20 %,

- nitrogen oxides: 20 %,

- dust: 30 %.

The validated hourly and daily average values shall be determined from the measured valid hourly average values after having subtracted the value of the confidence interval specified above.

Any day in which more than three hourly average values are invalid due to malfunction or maintenance of the continuous measurement system shall be invalidated. If more than 10 days over a year are invalidated for such situations the competent authority shall require the operator to take adequate measures to improve the reliability of the continuous monitoring system.

B. DETERMINATION OF TOTAL ANNUAL EMISSIONS OF COMBUSTION PLANTS

Until and including 2003 the competent authorities shall obtain determination of the total annual emissions of SO2 and NOx from new combustion plants. When continuous monitoring is used, the operator of the combustion plant shall add up separately for each pollutant the mass of pollutant emitted each day, on the basis of the volumetric flow rates of waste gases. Where continuous monitoring is not in use, estimates of the total annual emissions shall be determined by the operator on the basis of point A.1 to the satisfaction of the competent authorities.

Member States shall communicate to the Commission the total annual SO2 and NOx emissions of new combustion plants at the same time as the communication required under point C.3 concerning the total annual emissions of existing plants.

Member States shall establish, starting in 2004 and for each subsequent year, an inventory of SO2, NOx and dust emissions from all combustion plants with a rated thermal input of 50 MW or more. The competent authority shall obtain for each plant operated under the control of one operator at a given location the following data:

- the total annual emissions of SO2, NOx and dust (as total suspended particles),

- the total annual amount of energy input, related to the net calorific value, broken down in terms of the five categories of fuel: biomass, other solid fuels, liquid fuels, natural gas, other gases.

A summary of the results of this inventory that shows the emissions from refineries separately shall be communicated to the Commission every three years within twelve months from the end of the three-year period considered. The yearly plant-by-plant data shall be made available to the Commission upon request. The Commission shall make available to the Member States a summary of the comparison and evaluation of the national inventories within 12 months of receipt of the national inventories.

Commencing on 1 January 2008 Member States shall report annually to the Commission on those existing plants declared for eligibility under Article 4(4) along with the record of the used and unused time allowed for the plants' remaining operational life.

C. DETERMINATION OF THE TOTAL ANNUAL EMISSIONS OF EXISTING PLANTS UNTIL AND INCLUDING 2003

1. Member States shall establish, starting in 1990 and for each subsequent year until and including 2003, a complete emission inventory for existing plants covering SO2 and NOx:

- on a plant-by-plant basis for plants above 300 MWth and for refineries,

- on an overall basis for other combustion plants to which this Directive applies.

2. The methodology used for these inventories shall be consistent with that used to determine SO2 and NOx emissions from combustion plants in 1980.

3. The results of this inventory shall be communicated to the Commission in a conveniently aggregated form within nine months from the end of the year considered. The methodology used for establishing such emission inventories and the detailed base information shall be made available to the Commission at its request.

4. The Commission shall organise a systematic comparison of such national inventories and, if appropriate, shall submit proposals to the Council aiming at harmonising emission inventory methodologies, for the needs of an effective implementation of this Directive.

(1) Three years from the date of entry into force of this Directive.

(2) 12 months from the date of entry into force of this Directive.

ANNEX X

TIME LIMITS FOR TRANSPOSITION AND IMPLEMENTATION OF THE REPEALED DIRECTIVE

[Referred to in Article 18(1)]

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ANNEX XI

CORRELATION TABLE

[Referred to in Article 18(2)]

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 8 July 1998, the Commission presented to the Council its proposal for a Directive of the European Parliament and of the Council amending Directive 88/609/EEC of the Council on the limitation of emissions of certain pollutants into the air from large combustion plants(1). The proposal was based on former Article 130s(1), now 175(1) of the Treaty.

2. The European Parliament gave its opinion on 14 April 1999(2).

The Economic and Social Committee gave its opinion on 27 January 1999(3).

The Committee of the Regions decided at its session of 28 June 1999 that it would not give an opinion.

3. Following these opinions, the Commission forwarded an amended proposal(4) to the Council on 25 November 1999.

4. On 9 November 2000, the Council adopted its Common Position(5) in accordance with Article 251(2) of the Treaty.

II. OBJECTIVE

The aim of the Directive is to update the emission limit values applicable to plants licensed after the proposal comes into force and to extend the scope of the Directive to include gas turbines from the same date. The Common Position also includes more stringent requirements than currently apply for plants for which a licence was issued prior to 1 July 1987.

The Common Position both amends and recasts Directive 88/609/EEC, in conformity with the draft Interinstitutional Agreement on a more structured use of the recasting technique for legal acts(6). This procedure requires the repeal of the original Directive and any existing amending legislation. It should also facilitate implementation of the new amendments into national legislation.

III. ANALYSIS OF THE COMMON POSITION

1. General

The Council's Common Position extends the scope of the Commission's proposal by also applying emission limit values (ELVs) or other provisions to those combustion plants licensed before 1 July 1987 ("existing plants"). The new Directive will, therefore, cover three types of plant:

- existing plants,

- "old new plants" (licensed after 1 July 1987 and before the entry into force of this Directive),

- "new new plants" (those licensed after the date of entry into force of this Directive).

The last category must comply with more stringent ELVs than the first two. This extension reflects a number of the Parliament's proposed amendments. These amendments were not reflected in the Commission's amended proposal as it saw this proposal as part of a package of measures to combat acidification and ozone, the principal element of this package being, in the Commission's view, the proposal for a Directive on National Emission Ceilings. Given that the Council ultimately reached its Common Positions on both of these proposals together, the Commission was able to accept the view that existing plants should be included in this proposal.

2. Parliament amendments

The Council has adopted fully or in part 9 of the 15 European Parliament amendments (1, 3, 5, 8, 10, 12, 14, 15 and 20). It has not included in the Common Position amendments 2, 4, 6, 7, 11 and 13 as it followed the arguments of the Commission who had not accepted these amendments.

3. Most important innovations introduced by the Council

Article 4 of the Common Position extends the application of the proposal to existing plants and, in so doing, addresses the principle of the European Parliament's amendments (8, 10, 12, 14 and 20).

This Article provides Member States with two alternatives for the treatment of existing plants, which must be achieved by 1 January 2008:

- compliance with the ELVs and other conditions set for "old new plants"; or

- compliance with a national emission reduction plan, in accordance with guidelines to be issued by the Commission, leading to the same emission level that would have been achieved by applying the abovementioned ELVs to the existing plants in operation in the year 2000.

Existing plants may be exempt from these obligations if, before 30 June 2004, an operator declares not to operate the plant for more than 20000 hours from 1 January 2008.

Article 2 and Annex VI were amended to ensure consistency with other Community legislation in relation to biomass; the Annex was also amended in relation to gas turbines.

Articles 5, 6, 8 and 9 have been amended to ensure that they apply equally to existing plants as well as "old new plants".

Article 7 was amended to clarify that the responsibility of the Member States is to ensure that the technical and economic feasibility of providing for combined generation of heat and power is examined in the case of new plants licensed after this proposal comes into effect and in the case of other plants subject to an extension of greater than 50 MWth.

Annex IX was amended to take account of the inclusion of existing plants and to ensure no lacuna in reporting requirements following the repeal of the existing Directive.

Article 18, Annexes X and XI and changes to recitals 1 and 19 are required in relation to the recasting procedure.

(1) OJ C 300, 29.9.1998, p. 6.

(2) OJ C 219, 30.7.1999, p. 243.

(3) OJ C 101, 12.4.1999, p. 55.

(4) OJ C 215, 25.7.2000, p. 36.

(5) OJ C ...

(6) OJ C 215, 25.7.2000, p. 36.