EN Official Journal of the European Union CE 107/1

POSITION (EU) No 1/2010 OF THE COUNCIL AT FIRST READING

with a view to the adoption of a Directive of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control) (Recast)

Adopted by the Council on 15 February 2010

(Text with EEA relevance)

(2010/C 107 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 192(1) thereof,

Having regard to the proposal from the European Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1) A number of substantial changes are to be made to Council Directive 78/176/EEC of 20 February 1978 on waste from the titanium dioxide industry (4), 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 (5), Council Directive 92/112/EEC of 15 December 1992 on procedures for harmonising the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry (6), 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 (7), Directive 2000/76/EC of the European Parliament and of the Council of 4 December 2000 on the incineration of waste (8), 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 (9) and Directive 2008/1/EC of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (10). In the interests of clarity, those Directives should be recast.

(2) In order to prevent, reduce and as far as possible eliminate pollution arising from industrial activities in compliance with the ‘polluter pays’ principle and the principle of pollution prevention, it is necessary to establish a general framework for the control of the main industrial activities, giving priority to intervention at source and ensuring prudent management of natural resources.

(3) Different approaches to controlling emissions into air, water or soil separately may encourage the shifting of pollution from one environmental medium to another rather than protecting the environment as a whole. It is therefore appropriate to provide for an integrated approach to prevention and control of emissions into air, water and soil, to waste management, to energy efficiency and to accident prevention.

(4) It is appropriate to revise the legislation relating to industrial installations in order to simplify and clarify the existing provisions, reduce unnecessary administrative burdens and implement the conclusions of the Commission Communications of 21 September 2005 on the Thematic Strategy on Air Pollution (hereinafter ‘the Thematic Strategy on Air Pollution’), of 22 September 2006 on the Thematic Strategy for Soil Protection and of 21 December 2005 on the Thematic Strategy on the Prevention and Recycling of Waste adopted as a follow-up to Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (11). Those Communications set objectives to protect human health and the environment which cannot be met without further reductions in emissions arising from industrial activities.

(5) In order to ensure the prevention and control of pollution, each installation should operate only if it holds a permit or, in the case of certain installations and activities using organic solvents, only if it holds a permit or is registered.

(6) It is for Member States to determine the approach for assigning responsibilities to operators of installations provided that compliance with this Directive is ensured. Member States may choose to grant a permit to one responsible operator for each installation or to specify the responsibility amongst several operators of different parts of an installation. Where its current legal system provides for only one responsible operator for each installation, a Member State may decide to retain this system.

(7) In order to facilitate the granting of permits, Member States should be able to set requirements for certain categories of installations in general binding rules.

(8) It is important to prevent accidents and incidents and limit their consequences. Liability regarding the environmental consequences of accidents and incidents is a matter for relevant national law and, where applicable, other relevant Union law.

(9) In order to avoid duplication of regulation, the permit for an installation covered by Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community (12) should not include an emission limit value for direct emissions of the greenhouse gases specified in Annex I to that Directive except where it is necessary to ensure that no significant local pollution is caused or where an installation is excluded from that scheme.

(10) Operators should submit permit applications containing the information necessary for the competent authority to set permit conditions. Operators should be able to use information resulting from the application 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 (13) and of Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances (14) when submitting permit applications.

(11) The permit should include all the measures necessary to achieve a high level of protection of the environment as a whole and to ensure that the installation is operated in accordance with the general principles governing the basic obligations of the operator. The permit should also include emission limit values for polluting substances, or equivalent parameters or technical measures, appropriate requirements to protect the soil and groundwater and monitoring requirements. Permit conditions should be set on the basis of best available techniques.

(12) In order to determine best available techniques and to limit imbalances in the Union as regards the level of emissions from industrial activities, reference documents for best available techniques (hereinafter ‘T reference documents’) should be drawn up, reviewed and, where necessary, updated through an exchange of information with stakeholders and the key elements of BAT reference documents (hereinafter ‘BAT conclusions’) adopted through committee procedure. In this respect, the Commission should, through committee procedure, establish guidance on the collection of data, on the elaboration of BAT reference documents and on their quality assurance. BAT conclusions should be the reference for setting permit conditions. They can be supplemented by other sources.

(13) In order to ensure an effective and active exchange of information resulting in high-quality BAT reference documents, the Commission should establish a forum that functions in a transparent manner. Practical arrangements for the exchange of information and the accessibility of BAT reference documents should be laid down, in particular to ensure that Member States and stakeholders provide data of sufficient quality and quantity based on established guidance to enable the determination of best available techniques and emerging techniques.

(14) It is important to provide sufficient flexibility to competent authorities to set emission limit values that ensure that, under normal operating conditions, emissions do not exceed the emission levels associated with the best available techniques. To this end, the competent authority may set emission limits that differ from the emission levels associated with the best available techniques in terms of the values, periods of time and reference conditions applied, so long as it can be demonstrated, through the results of emission monitoring, that emissions have not exceeded the emission levels associated with the best available techniques.

(15) In order to take into account certain specific circumstances where the application of emission levels associated with the best available techniques would lead to disproportionately high costs compared to the environmental benefits, competent authorities should be able to set emission limit values deviating from those levels. Such deviations should be based on an assessment taking into account well-defined criteria. The emission limit values set out in this Directive should not be exceeded. In any event, no significant pollution should be caused and a high level of protection of the environment taken as a whole should be achieved.

(16) In order to enable operators to test emerging techniques which could provide for a higher general level of environmental protection, or at least the same level of environmental protection and higher cost savings than existing best available techniques, the competent authority should be able to grant temporary derogations from emission levels associated with the best available techniques.

(17) Changes to an installation may give rise to higher levels of pollution. Operators should notify the competent authority of any planned change which might affect the environment. Substantial changes to installations which may have significant negative effects on human health or the environment should not be made without a permit granted in accordance with this Directive.

(18) The spreading of manure contributes significantly to emissions of pollutants into air and water. With a view to meeting the objectives set out in the Thematic Strategy on Air Pollution and Union law on water protection, it is necessary for the Commission to review the need to establish the most suitable controls of these emissions through the application of best available techniques.

(19) The intensive rearing of poultry and cattle contributes significantly to emissions of pollutants into air and water. With a view to meeting the objectives set out in the Thematic Strategy on Air Pollution and in Union law on water protection, it is necessary for the Commission to review the need to establish differentiated capacity thresholds for different poultry species in order to define the scope of this Directive and to review the need to establish the most suitable controls on emissions from cattle rearing installations.

(20) In order to take account of developments in best available techniques or other changes to an installation, permit conditions should be reconsidered regularly and, where necessary, updated, in particular where new or updated BAT conclusions are adopted.

(21) In specific cases where permit reconsideration and updating identifies that a longer period than five years after the publication of a decision on BAT conclusions might be needed to introduce new best available techniques, competent authorities may set a longer time period in permit conditions where this is justified on the basis of the criteria laid down in this Directive.

(22) It is necessary to ensure that the operation of an installation does not lead to a deterioration of the quality of soil and groundwater. Permit conditions should therefore include appropriate measures to prevent emissions to soil and groundwater and regular surveillance of those measures to avoid leaks, spills, incidents or accidents occurring during the use of equipment and during storage. In order to detect possible soil and groundwater pollution at an early stage and, therefore, to take appropriate corrective measures before the pollution spreads, the monitoring of soil and groundwater for relevant hazardous substances is also necessary. When determining the frequency of monitoring, the type of prevention measures and the extent and occurrence of their surveillance may be considered.

(23) In order to ensure that the operation of an installation does not deteriorate the quality of soil and groundwater, it is necessary to establish, through a baseline report, the state of soil and groundwater contamination. The baseline report should be a practical tool that permits, as far as possible, a quantified comparison between the state of the site described in that report and the state of the site upon definitive cessation of activities, in order to ascertain whether a significant increase in pollution of soil or groundwater has taken place. The baseline report should therefore contain information making use of existing data on soil and groundwater measurements and historical data related to past uses of the site.

(24) In accordance with the polluter pays principle, when assessing the level of significance of the pollution of soil and groundwater caused by the operator which would trigger the obligation to return the site to the state described in the baseline report, Member States should take into account the permit conditions that have applied over the lifetime of the activity concerned, the pollution prevention measures adopted for the installation, and the relative increase in pollution compared to the contamination load identified in the baseline report. Liability regarding pollution not caused by the operator is a matter for relevant national law and, where applicable, other relevant Union law.

(25) In order to ensure the effective implementation and enforcement of this Directive, operators should regularly report to the competent authority on compliance with permit conditions. Member States should ensure that the operator and the competent authority each take necessary measures in the event of non-compliance with this Directive and provide for a system of environmental inspections.

(26) In accordance with the Århus Convention on access to information, public participation in decision-making and access to justice in environmental matters (15), effective public participation in decision-making is necessary to enable the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken. Members of the public concerned should have access to justice in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being.

(27) The combustion of fuel in installations with a total rated thermal input below 50 MW contributes significantly to emissions of pollutants into the air. With a view to meeting the objectives set out in the Thematic Strategy on Air Pollution, it is necessary for the Commission to review the need to establish the most suitable controls on emissions from such installations.

(28) Large combustion plants contribute greatly to emissions of polluting substances into the air resulting in a significant impact on human health and the environment. In order to reduce that impact and to work towards meeting the requirements of Directive 2001/81/EC of the European Parliament and of the Council of 23 October 2001 on national emission ceilings for certain atmospheric pollutants (16) and the objectives set out in the Thematic Strategy on Air Pollution, it is necessary to set more stringent emission limit values at Union level for certain categories of combustion plants and pollutants.

(29) The Commission should review the need to establish Union-wide emission limit values and to amend the emission limit values set out in Annex V for certain large combustion plants, taking into account the review and update of the relevant BAT reference documents. In this context, the Commission should consider the specificity of the energy systems of refineries.

(30) Due to the characteristics of certain indigenous solid fuels, it is appropriate to apply minimum desulphurisation rates rather than emission limit values for sulphur dioxide for combustion plants firing such fuels. Moreover, as the specific characteristics of oil shale may not allow the application of the same sulphur abatement techniques or the achievement of the same desulphurisation efficiency as for other fuels, a slightly lower minimum desulphurisation rate for plants using this fuel is appropriate.

(31) In the case of a sudden interruption in the supply of low-sulphur fuel or gas resulting from a serious shortage, the competent authority should be able to grant temporary derogations to allow emissions of the combustion plants concerned to exceed the emission limit values set out in this Directive.

(32) The operator concerned should not operate a combustion plant for more than 24 hours after malfunctioning or breakdown of abatement equipment and unabated operation should not exceed 120 hours in a 12-month period in order to limit the negative effects of pollution on the environment. However, where there is an overriding need for energy supplies or it is necessary to avoid an overall increase of emissions resulting from the operation of another combustion plant, competent authorities should be able to grant a derogation from those time limits.

(33) In order to ensure a high level of environmental and human health protection and to avoid transboundary movements of waste to plants operating at lower environmental standards, it is necessary to set and maintain stringent operational conditions, technical requirements and emission limit values for plants incinerating or co-incinerating waste within the Union.

(34) The use of organic solvents in certain activities and installations gives rise to emissions of organic compounds into the air which contribute to the local and transboundary formation of photochemical oxidants which causes damage to natural resources and has harmful effects on human health. It is therefore necessary to take preventive action against the use of organic solvents and to establish a requirement to comply with emission limit values for organic compounds and appropriate operating conditions. Operators should be allowed to comply with the requirements of a reduction scheme instead of complying with the emission limit values set out in this Directive where other measures, such as the use of low-solvent or solvent-free products or techniques, provide alternative means of achieving equivalent emission reduction.

(35) Installations producing titanium dioxide can give rise to significant pollution into air and water. In order to reduce these impacts, it is necessary to set at Union level more stringent emission limit values for certain polluting substances.

(36) In order to simplify reporting and reduce unnecessary administrative burdens, the Commission should identify methods to streamline the way in which data are made available pursuant to this Directive with the other requirements of Union law, and in particular Regulation (EC) No 166/2006 of the European Parliament and of the Council of 18 January 2006 concerning the establishment of a European Pollutant Release and Transfer Register (17).

(37) In order to prevent, reduce and, as far as possible, eliminate pollution arising from industrial activities in the most cost-effective way while ensuring a high level of protection of the environment as a whole, in particular through the implementation of best available techniques, the possibilities for market-based instruments such as trading in nitrogen oxides and sulphur dioxide emissions could be explored.

(38) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (18).

(39) In order to allow the provisions of this Directive to be adapted to scientific and technical progress on the basis of best available techniques, the Commission should be empowered to adopt delegated acts in accordance with Article 290 of the Treaty in respect of the adaptation of certain parts of Annexes V, VI and VII to such scientific and technical progress. In the case of waste incineration plants and waste co-incineration plants, this may include the establishment of criteria to allow derogations from continuous monitoring of total dust emissions. It is of particular importance that the Commission consult experts during its preparatory work, in accordance with the commitments made in the Commission Communication of 9 December 2009 on the implementation of Article 290 of the Treaty on the Functioning of the European Union.

(40) Member States should lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and ensure that they are implemented. Those penalties should be effective, proportionate and dissuasive.

(41) In order to provide existing installations with sufficient time to adapt technically to the new requirements of this Directive, some of the new requirements should apply to those installations after a fixed period from the date of application of this Directive. Combustion plants need sufficient time to install the necessary abatement measures to meet the emission limit values set out in Annex V.

(42) Since the objectives of this Directive, namely to ensure a high level of environmental protection and the improvement of environmental quality, cannot be sufficiently achieved by Member States and can, therefore, by reason of the transboundary nature of pollution from industrial activities, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(43) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Directive seeks to promote the application of Article 37 of that Charter.

(44) The obligation to transpose this Directive into national law should be confined to those provisions which represent a substantive change as compared with the earlier Directives. The obligation to transpose the provisions which are unchanged arises under the earlier Directives.

(45) In accordance with paragraph 34 of the Interinstitutional agreement on better law-making (19), Member States are encouraged to draw up, for themselves and in the interests of the Union, their own tables, which will as far as possible, illustrate the correlation between this Directive and the transposition measures, and to make those tables public.

(46) This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives set out in Annex IX, Part B,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

COMMON PROVISIONS

Article 1

Subject matter

This Directive lays down rules on integrated prevention and control of pollution arising from industrial activities.

It also lays down rules designed to prevent or, where that is not practicable, to reduce emissions into air, water and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole.

Article 2

Scope

1. This Directive shall apply to the industrial activities giving rise to pollution referred to in Chapters II to VI.

2. This Directive shall not apply to research activities, development activities or the testing of new products and processes.

Article 3

Definitions

For the purposes of this Directive the following definitions shall apply:

(1) ‘substance’ means any chemical element and its compounds, with the exception of the following substances: (a) radioactive substances as defined in Article 1 of Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionising radiation (20); (b) genetically modified micro-organisms as defined in point (b) of Article 2 of Directive 2009/41/EC of the European Parliament and the Council of 6 May 2009 on the contained use of genetically modified micro-organisms (21); (c) genetically modified organisms as defined in point 2 of Article 2 of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms (22);

(2) ‘pollution’ means the direct or indirect introduction, as a result of human activity, of substances, vibrations, heat or noise into air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment;

(3) ‘installation’ means a stationary technical unit within which one or more activities listed in Annex I or in Part 1 of Annex VII are carried out, and any other directly associated activities on the same site which have a technical connection with the activities listed in those Annexes and which could have an effect on emissions and pollution;

(4) ‘emission’ means the direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into air, water or land;

(5) ‘emission limit value’ means the mass, expressed in terms of certain specific parameters, concentration and/or level of an emission, which may not be exceeded during one or more periods of time;

(6) ‘environmental quality standard’ means the set of requirements which must be fulfilled at a given time by a given environment or particular part thereof, as set out in Union law;

(7) ‘permit’ means a written authorisation to operate all or part of an installation or combustion plant, waste incineration plant or waste co-incineration plant;

(8) ‘substantial change’ means a change in the nature or functioning, or an extension, of an installation or combustion plant, waste incineration plant or waste co-incineration plant which may have significant negative effects on human health or the environment;

(9) ‘best available techniques’ means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole: (a) ‘techniques’ includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned; (b) ‘available techniques’ means those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator; (c) ‘best’ means most effective in achieving a high general level of protection of the environment as a whole;

(10) ‘BAT reference document’ means a document, resulting from the exchange of information organised pursuant to Article 13, drawn up for defined activities and describing, in particular, applied techniques, present emissions and consumption levels, techniques considered for the determination of best available techniques as well as BAT conclusions and any emerging techniques, giving special consideration to the criteria listed in Annex III;

(11) ‘BAT conclusions’ means a document containing the parts of a BAT reference document laying down the conclusions on best available techniques, their description, information to assess their applicability, the emission levels associated with the best available techniques, associated monitoring, associated consumption levels and, where appropriate, relevant site remediation measures;

(12) ‘emission levels associated with the best available techniques’ means the range of emission levels obtained under normal operating conditions using a best available technique or a combination of best available techniques, as described in BAT conclusions, expressed as an average over a given period of time, under specified reference conditions;

(13) ‘emerging technique’ means a novel technique for an industrial activity that, if commercially developed, could provide either a higher general level of protection of the environment or at least the same level of protection of the environment and higher cost savings than existing best available techniques;

(14) ‘operator’ means any natural or legal person who operates or controls in whole or in part the installation or combustion plant, waste incineration plant or waste co-incineration plant or, where this is provided for in national law, to whom decisive economic power over the technical functioning of the installation or plant has been delegated;

(15) ‘the public’ means one or more natural or legal persons and, in accordance with national law or practice, their associations, organisations or groups;

(16) ‘the public concerned’ means the public affected or likely to be affected by, or having an interest in, the taking of a decision on the granting or the updating of a permit or of permit conditions; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest;

(17) ‘hazardous substances’ means substances or mixtures as defined in points 7 and 8 of Article 2 of Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures (23);

(18) ‘baseline report’ means information on the state of soil and groundwater contamination by relevant hazardous substances;

(19) ‘groundwater’ means groundwater as defined in point 2 of Article 2 of Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000 establishing a framework for Community action in the field of water policy (24);

(20) ‘soil’ means the top layer of the Earth's crust situated between the bedrock and the surface. The soil is composed of mineral particles, organic matter, water, air and living organisms;

(21) ‘environmental inspection’ means all actions, including site visits, monitoring of emissions and checks of internal reports and follow-up documents, verification of self-monitoring, checking of the techniques used and adequacy of the environment management of the installation, undertaken by or on behalf of the competent authority to check and promote compliance of installations with their permit conditions and, where necessary, to monitor their environmental impact;

(22) ‘poultry’ means poultry as defined in point 1 of Article 2 of Council Directive 90/539/EEC of 15 October 1990 on animal health conditions governing intra-Community trade in, and imports from third countries of, poultry and hatching eggs (25);

(23) ‘fuel’ means any solid, liquid or gaseous combustible material;

(24) ‘combustion plant’ means any technical apparatus in which fuels are oxidised in order to use the heat thus generated;

(25) ‘stack’ means a structure containing one or more flues providing a passage for waste gases in order to discharge them into the air;

(26) ‘operating hours’ means the time, expressed in hours, during which a combustion plant, in whole or in part, is operating and discharging emissions into the air, excluding start-up and shut-down periods;

(27) ‘rate of desulphurisation’ means the ratio over a given period of time of the quantity of sulphur which is not emitted into air by a combustion plant to the quantity of sulphur contained in the solid fuel which is introduced into the combustion plant facilities and which is used in the plant over the same period of time;

(28) ‘indigenous solid fuel’ means a naturally occurring solid fuel fired in a combustion plant specifically designed for that fuel and extracted locally;

(29) ‘determinative fuel’ means the fuel which, amongst all fuels used in a multi-fuel firing combustion plant using the distillation and conversion residues from the refining of crude-oil for own consumption, alone or with other fuels, has the highest emission limit value as set out in Part 1 of Annex V, or, in the case of several fuels having the same emission limit value, the fuel having the highest thermal input amongst those fuels;

(30) ‘biomass’ means any of the following: (a) products consisting of any vegetable matter from agriculture or forestry which can be used as a fuel for the purpose of recovering its energy content; (b) the following waste: (i) vegetable waste from agriculture and forestry; (ii) vegetable waste from the food processing industry, if the heat generated is recovered; (iii) fibrous vegetable waste from virgin pulp production and from production of paper from pulp, if it is co-incinerated at the place of production and the heat generated is recovered; (iv) cork waste; (v) 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;

(31) ‘multi-fuel firing combustion plant’ means any combustion plant which may be fired simultaneously or alternately by two or more types of fuel;

(32) ‘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;

(33) ‘gas engine’ means an internal combustion engine which operates according to the Otto cycle and uses spark ignition or, in case of dual fuel engines, compression ignition to burn fuel;

(34) ‘diesel engine’ means an internal combustion engine which operates according to the diesel cycle and uses compression ignition to burn fuel;

(35) ‘small isolated system’ means a small isolated system as defined in point 26 of Article 2 of Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity (26);

(36) ‘waste’ means waste as defined in point 1 of Article 3 of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste (27);

(37) ‘hazardous waste’ means hazardous waste as defined in point 2 of Article 3 of Directive 2008/98/EC;

(38) ‘mixed municipal waste’ means waste from households as well as commercial, industrial and institutional waste which, because of its nature and composition, is similar to waste from households, but excluding fractions indicated under heading 20 01 of the Annex to Decision 2000/532/EC (28) that are collected separately at source and excluding the other waste indicated under heading 20 02 of that Annex;

(39) ‘waste incineration plant’ means any stationary or mobile technical unit and equipment dedicated to the thermal treatment of waste, with or without recovery of the combustion heat generated, through the incineration by oxidation of waste as well as other thermal treatment processes, such as pyrolysis, gasification or plasma process, if the substances resulting from the treatment are subsequently incinerated;

(40) ‘waste co-incineration plant’ means any stationary or mobile technical unit whose main purpose is the generation of energy or production of material products and which uses waste as a regular or additional fuel or in which waste is thermally treated for the purpose of disposal through the incineration by oxidation of waste as well as other thermal treatment processes, such as pyrolysis, gasification or plasma process, if the substances resulting from the treatment are subsequently incinerated;

(41) ‘nominal capacity’ means the sum of the incineration capacities of the furnaces of which a waste incineration plant or a waste co-incineration plant is composed, as specified by the constructor and confirmed by the operator, with due account being taken of the calorific value of the waste, expressed as the quantity of waste incinerated per hour;

(42) ‘dioxins and furans’ means all polychlorinated dibenzo-p-dioxins and dibenzofurans listed in Part 2 of Annex VI;

(43) ‘organic compound’ means any compound containing at least the element carbon and one or more of hydrogen, halogens, oxygen, sulphur, phosphorus, silicon or nitrogen, with the exception of carbon oxides and inorganic carbonates and bicarbonates;

(44) ‘volatile organic compound’ means any organic compound as well as the fraction of creosote, having at 293,15 K a vapour pressure of 0,01 kPa or more, or having a corresponding volatility under the particular conditions of use;

(45) ‘organic solvent’ means any volatile organic compound which is used for any of the following: (a) alone or in combination with other agents, and without undergoing a chemical change, to dissolve raw materials, products or waste materials; (b) as a cleaning agent to dissolve contaminants; (c) as a dissolver; (d) as a dispersion medium; (e) as a viscosity adjuster; (f) as a surface tension adjuster; (g) as a plasticiser; (h) as a preservative;

(46) ‘coating’ means coating as defined in point 8 of Article 2 of Directive 2004/42/EC of the European Parliament and of the Council of 21 April 2004 on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain paints and varnishes and vehicle refinishing products (29).

Article 4

Obligation to hold a permit

1. Member States shall take the necessary measures to ensure that no installation or combustion plant, waste incineration plant or waste co-incineration plant is operated without a permit.

By way of derogation from the first subparagraph, Member States may set a procedure for the registration of installations covered only by Chapter V.

The procedure for registration shall be specified in a binding act and include at least a notification to the competent authority by the operator of the intention to operate an installation.

2. Member States may opt to provide that a permit cover two or more installations or parts of installations operated by the same operator on the same site.

Where a permit covers two or more installations, it shall contain conditions to ensure that each installation complies with the requirements of this Directive.

3. Member States may opt to provide that a permit cover several parts of an installation operated by different operators. In such cases, the permit shall specify the responsibilities of each operator.

Article 5

Granting of a permit

1. Without prejudice to other requirements laid down in national or Union law, the competent authority shall grant a permit if the installation complies with the requirements of this Directive.

2. Member States shall take the measures necessary to ensure that the conditions of, and the procedures for the granting of, the permit are fully coordinated where more than one competent authority or more than one operator is involved or more than one permit is granted, in order to guarantee an effective integrated approach by all authorities competent for this procedure.

3. In the case of a new installation or a substantial change where Article 4 of Directive 85/337/EEC applies, any relevant information obtained or conclusion arrived at pursuant to Articles 5, 6, 7 and 9 of that Directive shall be examined and used for the purposes of granting the permit.

Article 6

General binding rules

Without prejudice to the obligation to hold a permit, Member States may include requirements for certain categories of installations, combustion plants, waste incineration plants or waste co-incineration plants in general binding rules.

Where general binding rules are adopted, the permit may simply include a reference to such rules.

Article 7

Incidents and accidents

Without prejudice to Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (30), in the event of any incident or accident significantly affecting the environment, Member States shall take the necessary measures to ensure that:

(a) the operator informs the competent authority immediately;

(b) the operator immediately takes the measures to limit the environmental consequences and to prevent further possible incidents or accidents;

(c) the competent authority requires the operator to take any appropriate complementary measures that the competent authority considers necessary to limit the environmental consequences and to prevent further possible incidents or accidents.

Article 8

Non-compliance

1. Member States shall take the necessary measures to ensure that the permit conditions are complied with.

2. In the event of a breach of the permit conditions, Member States shall ensure that:

(a) the operator immediately informs the competent authority;

(b) the operator immediately takes the measures necessary to ensure that compliance is restored within the shortest possible time;

(c) the competent authority requires the operator to take any appropriate complementary measures that the competent authority considers necessary to restore compliance.

Where the breach of the permit conditions poses an immediate danger to human health or threatens to cause an immediate significant adverse effect upon the environment, and until compliance is restored in accordance with points (b) and (c) of the first subparagraph, the operation of the installation, combustion plant, waste incineration plant, waste co-incineration plant or relevant part thereof shall be suspended.

Article 9

Emission of greenhouse gases

1. Where emissions of a greenhouse gas from an installation are specified in Annex I to Directive 2003/87/EC in relation to an activity carried out in that installation, the permit shall not include an emission limit value for direct emissions of that gas, unless necessary to ensure that no significant local pollution is caused.

2. For activities listed in Annex I to Directive 2003/87/EC, Member States may choose not to impose requirements relating to energy efficiency in respect of combustion units or other units emitting carbon dioxide on the site.

3. Where necessary, the competent authorities shall amend the permit as appropriate.

4. Paragraphs 1 to 3 shall not apply to installations which are temporarily excluded from the scheme for greenhouse gas emission allowance trading within the Union in accordance with Article 27 of Directive 2003/87/EC.

CHAPTER II

SPECIAL PROVISIONS FOR ACTIVITIES LISTED IN ANNEX I

Article 10

Scope

This Chapter shall apply to the activities set out in Annex I and, where applicable, reaching the capacity thresholds set out in that Annex.

Article 11

General principles governing the basic obligations of the operator

Member States shall take the necessary measures to provide that installations are operated in accordance with the following principles:

(a) all the appropriate preventive measures are taken against pollution;

(b) the best available techniques are applied;

(c) no significant pollution is caused;

(d) the generation of waste is prevented in accordance with Directive 2008/98/EC;

(e) where waste is generated, it is, in order of priority and in accordance with Directive 2008/98/EC, prepared for re-use, recycled, recovered or, where that is technically and economically impossible, it is disposed of while avoiding or reducing any impact on the environment;

(f) energy is used efficiently;

(g) the necessary measures are taken to prevent accidents and limit their consequences;

(h) the necessary measures are taken upon definitive cessation of activities to avoid any risk of pollution and return the site of operation to the satisfactory state defined in accordance with Article 22.

Article 12

Applications for permits

1. Member States shall take the necessary measures to ensure that an application for a permit includes a description of the following:

(a) the installation and its activities;

(b) the raw and auxiliary materials, other substances and the energy used in or generated by the installation;

(c) the sources of emissions from the installation;

(d) the conditions of the site of the installation;

(e) where applicable, a baseline report in accordance with Article 22(2);

(f) the nature and quantities of foreseeable emissions from the installation into each medium as well as identification of significant effects of the emissions on the environment;

(g) the proposed technology and other techniques for preventing or, where this is not possible, reducing emissions from the installation;

(h) measures for the prevention, preparation for re-use, recycling and recovery of waste generated by the installation;

(i) further measures planned to comply with the general principles of the basic obligations of the operator as provided for in Article 11;

(j) measures planned to monitor emissions into the environment;

(k) the main alternatives to the proposed technology, techniques and measures studied by the applicant in outline.

An application for a permit shall also include a non-technical summary of the details referred to in the first subparagraph.

2. Where information supplied in accordance with the requirements provided for in Directive 85/337/EEC or a safety report prepared in accordance with Directive 96/82/EC or other information produced in response to other legislation fulfils any of the requirements of paragraph 1, that information may be included in, or attached to, the application.

Article 13

BAT reference documents and exchange of information

1. In order to draw up, review and, where necessary, update BAT reference documents, the Commission shall organise an exchange of information between Member States, the industries concerned, non-governmental organisations promoting environmental protection and the Commission.

2. The exchange of information shall, in particular, address the following:

(a) the performance of installations and techniques in terms of emissions, expressed as short- and long-term averages, where appropriate, and the associated reference conditions, consumption and nature of raw materials, water consumption, use of energy and generation of waste;

(b) the techniques used, associated monitoring, cross-media effects, economic and technical viability and developments therein;

(c) best available techniques and emerging techniques identified after considering the issues mentioned in points (a) and (b).

3. The Commission shall establish and regularly convene a forum composed of representatives of Member States, the industries concerned and non-governmental organisations promoting environmental protection.

The Commission shall obtain the opinion of the forum on the practical arrangements for the exchange of information and, in particular, on the following:

(a) the rules of procedure of the forum;

(b) the work programme for the exchange of information;

(c) guidance on the collection of data;

(d) guidance on the drawing up of BAT reference documents and on their quality assurance including the suitability of their content and format.

Taking into account the opinion of the forum, the guidance referred to in point (c) and (d) of the second subparagraph shall be adopted in accordance with the regulatory procedure referred to in Article 75(2).

4. The Commission shall obtain the opinion of the forum on the proposed content of the BAT reference documents and shall take into account this opinion for the procedures laid down in paragraph 5.

5. Decisions on the BAT conclusions shall be adopted in accordance with the regulatory procedure referred to in Article 75(2).

6. After the adoption of a decision in accordance with paragraph 5, the Commission shall without delay make the BAT reference document publicly available.

7. Pending the adoption of a relevant decision in accordance with paragraph 5, the conclusions on best available techniques from BAT reference documents adopted by the Commission prior to the date referred to in Article 83 shall apply as BAT conclusions for the purposes of this Chapter except for Article 15(3) and (4).

Article 14

Permit conditions

1. Member States shall ensure that the permit includes all measures necessary for compliance with the requirements of Articles 11 and 18.

Those measures shall include at least the following:

(a) emission limit values for polluting substances listed in Annex II, and for other polluting substances, which are likely to be emitted from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another;

(b) appropriate requirements ensuring protection of the soil and groundwater and measures concerning the monitoring and management of waste generated by the installation;

(c) suitable emission monitoring requirements specifying: (i) measurement methodology, frequency and evaluation procedure; and (ii) where Article 15(3)(b) is applied, that results of emission monitoring are available for the same periods of time and reference conditions as for the emission levels associated with the best available techniques;

(d) an obligation to supply the competent authority regularly, and at least annually, with: (i) information on the basis of results of emission monitoring referred to in point (c) and other data that enables the competent authority to verify compliance with the permit conditions; and (ii) where point (b) of Article 15(3) is applied, a summary of the results of emission monitoring which allows a comparison with the emission levels associated with the best available techniques;

(e) appropriate requirements for the regular maintenance and surveillance of measures taken to prevent emissions to soil and groundwater pursuant to point (b) and appropriate requirements concerning the periodic monitoring of soil and groundwater in relation to relevant hazardous substances likely to be found on site and having regard to the possibility of soil and groundwater contamination at the site of the installation;

(f) measures relating to conditions other than normal operating conditions such as start-up, leaks, malfunctions, momentary stoppages and definitive cessation of operations;

(g) provisions on the minimisation of long-distance or transboundary pollution;

(h) conditions for assessing compliance with the emission limit values or a reference to the applicable requirements specified elsewhere.

2. For the purpose of point (a) of paragraph 1, emission limit values may be supplemented or replaced by equivalent parameters or technical measures ensuring an equivalent level of environmental protection.

3. BAT conclusions shall be the reference for setting the permit conditions.

4. Without prejudice to Article 18, the competent authority may be allowed to set stricter permit conditions than those achievable by the use of the best available techniques as described in the BAT conclusions.

5. Where the competent authority sets permit conditions on the basis of a best available technique not described in any of the relevant BAT conclusions, it shall ensure that:

(a) that technique is determined by giving special consideration to the criteria listed in Annex III; and

(b) the requirements of Article 15 are complied with.

Where the BAT conclusions referred to in the first subparagraph do not contain emission levels associated with the best available techniques, the competent authority shall ensure that the technique referred to in the first subparagraph ensures a level of environmental protection equivalent to the best available techniques described in the BAT conclusions.

6. Where an activity or a type of production process carried out within an installation is not covered by any of the BAT conclusions or where those conclusions do not address all the potential environmental effects of the activity or process, the competent authority shall set the permit conditions on the basis of the best available techniques that it has determined for the activities or processes concerned, by giving special consideration to the criteria listed in Annex III.

7. For installations referred to in point 6.6 of Annex I, paragraphs 1 to 6 of this Article shall apply without prejudice to the legislation relating to animal welfare.

Article 15

Emission limit values, equivalent parameters and technical measures

1. The emission limit values for polluting substances shall apply at the point where the emissions leave the installation, and any dilution prior to that point shall be disregarded when determining those values.

With regard to indirect releases of polluting substances into water, the effect of a water treatment plant may be taken into account when determining the emission limit values of the installation concerned, provided that an equivalent level of protection of the environment as a whole is guaranteed and provided this does not lead to higher levels of pollution in the environment.

2. Without prejudice to Article 18, the emission limit values and the equivalent parameters and technical measures referred to in Article 14(1) and (2) shall be based on the best available techniques, without prescribing the use of any technique or specific technology.

3. The competent authority shall set emission limit values that ensure that, under normal operating conditions, emissions do not exceed the emission levels associated with the best available techniques as laid down in the decisions on BAT conclusions referred to in Article 13(5) through either of the following:

(a) setting emission limit values that do not exceed the emission levels associated with the best available techniques. Those emission limit values shall be expressed for the same or shorter periods of time and under the same reference conditions as those emission levels associated with the best available techniques; or

(b) setting different emission limit values than those referred to under point (a) in terms of values, periods of time and reference conditions.

Where point (b) is applied, the competent authority shall, at least annually, assess the results of emission monitoring in order to ensure that emissions under normal operating conditions have not exceeded the emission levels associated with the best available techniques.

4. By way of derogation from paragraph 3, the competent authority may, in specific cases, on the basis of an assessment of the environmental and economic costs and benefits taking into account the technical characteristics of the installation concerned, its geographical location and the local environmental conditions, set emission limit values deviating from those set by the application of paragraph 3.

The competent authority shall provide the reasons for the application of the first subparagraph including the result of the assessment and the justification for the conditions imposed.

Emission limit values shall, however, not exceed the emission limit values set out in Annexes V to VIII, where applicable.

The Commission may establish guidance specifying the criteria to be taken into account for the application of this paragraph.

The competent authorities shall re-assess the application of the first subparagraph as part of each reconsideration of the permit conditions pursuant to Article 21.

5. The competent authority may grant temporary derogations from the requirements of paragraphs 2 and 3 of this Article and from points (a) and (b) of Article 11 for the testing and use of emerging techniques for a total period of time not exceeding nine months, provided that after the period specified, either the technique is stopped or the activity achieves at least the emission levels associated with the best available techniques.

Article 16

Monitoring requirements

1. The monitoring requirements referred to in point (c) of Article 14(1) shall, where applicable, be based on the conclusions on monitoring as described in the BAT conclusions.

2. The frequency of the periodic monitoring referred to in point (e) of Article 14(1) shall be determined by the competent authority in a permit for each individual installation or in general binding rules.

Without prejudice to the first subparagraph, periodic monitoring shall be carried out at least once every five years for groundwater and ten years for soil, unless such monitoring is based on a systematic appraisal of the risk of contamination.

Article 17

General binding rules

When adopting general binding rules as referred to in Article 6, Member States shall ensure an integrated approach and a high level of environmental protection equivalent to that achievable with individual permit conditions. Member States shall ensure that those general binding rules are updated in accordance with developments in best available techniques.

Article 18

Environmental quality standards

Where an environmental quality standard requires stricter conditions than those achievable by the use of the best available techniques, additional measures shall be included in the permit, without prejudice to other measures which may be taken to comply with environmental quality standards.

Article 19

Developments in best available techniques

Member States shall ensure that the competent authority follows or is informed of developments in best available techniques and of the publication of any new or updated BAT conclusions.

Article 20

Changes by operators to installations

1. Member States shall take the necessary measures to ensure that the operator informs the competent authority of any planned change in the nature or functioning, or an extension of the installation which may have consequences for the environment. Where appropriate, the competent authority shall update the permit.

2. Member States shall take the necessary measures to ensure that no substantial change planned by the operator is made without a permit granted in accordance with this Directive.

The application for a permit and the decision by the competent authority shall cover those parts of the installation and those details listed in Article 12 which may be affected by the substantial change.

3. Any change in the nature or functioning or an extension of an installation shall be deemed to be substantial if the change or extension in itself reaches the capacity thresholds set out in Annex I.

Article 21

Reconsideration and updating of permit conditions by the competent authority

1. Member States shall take the necessary measures to ensure that the competent authority periodically reconsiders in accordance with paragraphs 2 to 5 all permit conditions and, where necessary to ensure compliance with this Directive, updates those conditions.

2. At the request of the competent authority, the operator shall submit all the information necessary for the purpose of reconsidering the permit conditions, including, in particular, results of emission monitoring and other data, that enables a comparison of the operation of the installation with the best available techniques described in the applicable BAT conclusions and with the emission levels associated with the best available techniques.

When reconsidering permit conditions, the competent authority shall use any information resulting from monitoring or inspections.

3. Within five years of publication of decisions on BAT conclusions in accordance with Article 13(5) relating to the main activity of an installation, the competent authority shall ensure that:

(a) all the permit conditions for the installation concerned are reconsidered and, if necessary, updated to ensure compliance with this Directive, in particular, with Article 15(3) and (4), where applicable;

(b) the installation complies with those permit conditions.

The reconsideration shall take into account all the new or updated BAT conclusions applicable to the installation and adopted in accordance with Article 13(5) since the permit was granted or last reconsidered.

4. Where an installation is not covered by any of the BAT conclusions, the permit conditions shall be reconsidered and, if necessary, updated where developments in the best available techniques allow for the significant reduction of emissions.

5. The permit conditions shall be reconsidered and, where necessary, updated at least in the following cases:

(a) the pollution caused by the installation is of such significance that the existing emission limit values of the permit need to be revised or new such values need to be included in the permit;

(b) the operational safety requires other techniques to be used;

(c) where it is necessary to comply with a new or revised environmental quality standard in accordance with Article 18.

Article 22

Site closure

1. Without prejudice to Directive 2000/60/EC, Directive 2004/35/EC, Directive 2006/118/EC of the European Parliament and of the Council of 12 December 2006 on the protection of groundwater against pollution and deterioration (31) and to relevant Union law on soil protection, the competent authority shall set permit conditions to ensure compliance with paragraphs 3 and 4 of this Article upon definitive cessation of activities.

2. Where the activity involves the use, production or release of relevant hazardous substances and having regard to the possibility of soil and groundwater contamination at the site of the installation, the operator shall prepare and submit to the competent authority a baseline report before starting operation of an installation or before a permit for an installation is updated for the first time after … (32).

The baseline report shall contain the information necessary to determine the state of soil and groundwater contamination so as to make a quantified comparison with the state upon definitive cessation of activities provided for under paragraph 3.

The baseline report shall contain at least the following information:

(a) information on the present use and, where available, on past uses of the site;

(b) where available, existing information on soil and groundwater measurements that reflect the state at the time the report is drawn up or, alternatively, new soil and groundwater measurements having regard to the possibility of soil and groundwater contamination by those hazardous substances to be used, produced or released by the installation concerned. Where information produced pursuant to other national or Union law fulfils the requirements of this paragraph that information may be included in, or attached to, the submitted baseline report. The Commission shall establish guidance on the content of the baseline report.

3. Upon definitive cessation of the activities, the operator shall assess the state of soil and groundwater contamination by relevant hazardous substances used, produced or released by the installation. Where the installation has caused significant pollution of soil or groundwater by relevant hazardous substances compared to the state established in the baseline report referred to in paragraph 2, the operator shall take the necessary measures to address that pollution so as to return the site to that state. For that purpose, the technical feasibility of such measures may be taken into account.

Without prejudice to the first subparagraph, upon definitive cessation of the activities, and where the contamination of soil and groundwater at the site poses a significant risk to human health or the environment as a result of the permitted activities carried out by the operator before the permit for the installation is updated for the first time after … (32) and taking into account the conditions of the site of the installation established in accordance with point (d) of Article 12(1), the operator shall take the necessary actions aimed at the removal, control, containment or reduction of relevant hazardous substances, so that the site, taking into account its current or approved future use, ceases to pose such a risk.

4. Where the operator is not required to prepare a baseline report referred to in paragraph 2, the operator shall, upon definitive cessation of the activities, take the necessary actions aimed at the removal, control, containment or reduction of relevant hazardous substances, so that the site, taking into account its current or approved future use, ceases to pose any significant risk to human health or the environment due to the contamination of soil and groundwater as a result of the permitted activities and taking into account the conditions of the site of the installation established in accordance with point (d) of Article 12(1).

Article 23

Environmental inspections

1. Member States shall set up a system of environmental inspections of installations addressing the examination of the full range of relevant environmental effects from the installations concerned.

Member States shall ensure that operators afford the competent authorities all necessary assistance to enable those authorities to carry out any site visits, to take samples and to gather any information necessary for the performance of their duties for the purposes of this Directive.

2. Member States shall ensure that all installations are covered by an environmental inspection plan at national, regional or local level and shall ensure that this plan is regularly reviewed and, where appropriate, updated.

3. Each environmental inspection plan shall include the following:

(a) a general assessment of relevant significant environmental issues;

(b) the geographical area covered by the inspection plan;

(c) a register of the installations covered by the plan;

(d) procedures for drawing up programmes for routine environmental inspections pursuant to paragraph 4;

(e) procedures for non-routine environmental inspections pursuant to paragraph 5;

(f) where necessary, provisions on the co-operation between different inspection authorities.

4. Based on the inspection plans, the competent authority shall regularly draw up programmes for routine environmental inspections, including the frequency of site visits for different types of installations.

The period between two site visits shall be based on a systematic appraisal of the environmental risks of the installations concerned and shall not exceed one year for installations posing the highest risks and three years for installations posing the lowest risks.

The systematic appraisal of the environmental risks shall be based on at least the following criteria:

(a) the potential and actual impacts of the installations concerned on human health and the environment taking into account the levels and types of emissions, the sensitivity of the local environment and the risk of accidents;

(b) the record of compliance with permit conditions;

(c) participation in the Union eco-management and audit scheme (EMAS).

5. Non-routine environmental inspections shall be carried out to investigate serious environmental complaints, serious environmental accidents, incidents and occurrences of non-compliance as soon as possible and, where appropriate, before the granting, reconsideration or update of a permit.

6. Following each site visit, the competent authority shall prepare a report describing the relevant findings regarding compliance of the installation with the permit conditions and conclusions on whether any further action is necessary.

The draft report shall be sent to the operator concerned and the final report shall be made publicly available in accordance with Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (33) within three months of the site visit taking place.

Without prejudice to Article 8(2), the competent authority shall ensure that the operator takes all the necessary actions identified in the report within a reasonable period.

Article 24

Access to information and public participation in the permit procedure

1. Member States shall ensure that the public concerned are given early and effective opportunities to participate in the following procedures:

(a) granting of a permit for new installations;

(b) granting of a permit for any substantial change;

(c) updating of a permit or permit conditions for an installation in accordance with point (a) of Article 21(5).

The procedure set out in Annex IV shall apply to such participation.

2. When a decision on granting, reconsideration or updating of a permit has been taken, the competent authority shall make available to the public, including via the internet in relation to points (a) and (b), the following information:

(a) the content of the decision, including a copy of the permit and any subsequent updates;

(b) the reasons on which the decision is based;

(c) the results of the consultations held before the decision was taken and an explanation of how they were taken into account in that decision;

(d) the title of the BAT reference documents relevant to the installation or activity concerned;

(e) how the permit conditions, including the emission limit values have been determined in relation to the best available techniques and associated emission levels;

(f) where Article 15(4) is applied, the reasons for that application as referred to in the second subparagraph of Article 15(4).

3. The competent authority shall also make available to the public:

(a) relevant information on the measures taken by the operator upon definitive cessation of activities in accordance with Article 22;

(b) the results of emission monitoring as required under the permit conditions and held by the competent authority.

4. Paragraphs 1, 2 and 3 shall apply subject to the restrictions laid down in Article 4(1) and (2) of Directive 2003/4/EC.

Article 25

Access to justice

1. Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions subject to Article 24 when one of the following conditions is met:

(a) they have a sufficient interest;

(b) they maintain the impairment of a right, where administrative procedural law of a Member State requires this as a precondition.

2. Member States shall determine at what stage the decisions, acts or omissions may be challenged.

3. What constitutes a sufficient interest and impairment of a right shall be determined by Member States, consistently with the objective of giving the public concerned wide access to justice.

To this end, the interest of any non-governmental organisation promoting environmental protection and meeting any requirements under national law shall be deemed sufficient for the purpose of point (a) of paragraph 1.

Such organisations shall also be deemed to have rights capable of being impaired for the purpose of point (b) of paragraph 1.

4. Paragraphs 1, 2 and 3 shall not exclude the possibility of a preliminary review procedure before an administrative authority and shall not affect the requirement of exhaustion of administrative review procedures prior to recourse to judicial review procedures, where such a requirement exists under national law.

Any such procedure shall be fair, equitable, timely and not prohibitively expensive.

5. Member States shall ensure that practical information is made available to the public on access to administrative and judicial review procedures.

Article 26

Transboundary effects

1. Where a Member State is aware that the operation of an installation is likely to have significant negative effects on the environment of another Member State, or where a Member State which is likely to be significantly affected so requests, the Member State in whose territory the application for a permit pursuant to Article 4 or Article 20(2) was submitted shall forward to the other Member State any information required to be given or made available pursuant to Annex IV at the same time as it makes it available to the public.

Such information shall serve as a basis for any consultations necessary in the framework of the bilateral relations between the two Member States on a reciprocal and equivalent basis.

2. Within the framework of their bilateral relations, Member States shall ensure that in the cases referred to in paragraph 1, the applications are also made available for an appropriate period of time to the public of the Member State likely to be affected so that it will have the right to comment on them before the competent authority reaches its decision.

3. The results of any consultations pursuant to paragraphs 1 and 2 shall be taken into consideration when the competent authority reaches a decision on the application.

4. The competent authority shall inform any Member State which has been consulted pursuant to paragraph 1 of the decision reached on the application and shall forward to it the information referred to in Article 24(2). That Member State shall take the measures necessary to ensure that that information is made available in an appropriate manner to the public concerned in its own territory.

Article 27

Emerging techniques

1. Member States shall, where appropriate, encourage the development and application of emerging techniques, in particular for those emerging techniques identified in BAT reference documents.

2. The Commission shall establish guidance to assist Member States in encouraging the development and application of emerging techniques as referred to in paragraph 1.

CHAPTER III

SPECIAL PROVISIONS FOR COMBUSTION PLANTS

Article 28

Scope

This Chapter shall apply to combustion plants, the total rated thermal input of which is equal to or greater than 50 MW, irrespective of the type of fuel used.

This Chapter 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;

(b) post-combustion plants designed to purify the waste gases by combustion which are not operated as independent combustion plants;

(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) plants which use any solid or liquid waste as a fuel other than waste referred to in point (b) of point 30 of Article 3.

Article 29

Aggregation rules

1. Where the waste gases of two or more separate combustion plants are discharged through a common stack, the combination formed by such plants shall be considered as a single combustion plant and their capacities added for the purpose of calculating the total rated thermal input.

2. Where two or more separate combustion plants which have been granted a permit for the first time on or after 1 July 1987, or the operators of which have submitted a complete application for a permit on or after that date, are installed in such a way that, taking technical and economic factors into account, their waste gases could in the judgement of the competent authority, be discharged through a common stack, the combination formed by such plants shall be considered as a single combustion plant and their capacities added for the purpose of calculating the total rated thermal input.

3. For the purpose of calculating the total rated thermal input of a combination of combustion plants referred to in paragraphs 1 and 2, individual combustion plants with a rated thermal input below 15 MW shall not be considered.

Article 30

Emission limit values

1. Waste gases from combustion plants shall be discharged in a controlled way by means of a stack, containing one or more flues, the height of which is calculated in such a way as to safeguard human health and the environment.

2. All permits for installations containing combustion plants which have been granted a permit before … (32), or the operators of which have submitted a complete application for a permit before that date, provided that such plants are put into operation no later than … (34), shall include conditions ensuring that emissions into air from these plants do not exceed the emission limit values laid down in Part 1 of Annex V.

All permits for installations containing combustion plants which had been granted an exemption as referred to in Article 4(4) of Directive 2001/80/EC and which are in operation after 1 January 2016, shall include conditions ensuring that emissions into the air from these plants do not exceed the emission limit values laid down in Part 2 of Annex V.

3. All permits for installations containing combustion plants not covered by paragraph 2 shall include conditions ensuring that emissions into the air from these plants do not exceed the emission limit values laid down in Part 2 of Annex V.

4. The emission limit values set out in Parts 1 and 2 of Annex V as well as the minimum rates of desulphurisation set out in Part 5 of that Annex shall apply to the emissions of each common stack in relation to the total rated thermal input of the entire combustion plant. Where Annex V provides that emission limit values may be applied for a part of a combustion plant with a limited number of operating hours, those limit values shall apply to the emissions of that part of the plant, but shall be set in relation to the total rated thermal input of the entire combustion plant.

5. The competent authority may grant a derogation for a maximum of six months from the obligation to comply with the emission limit values provided for in paragraphs 2 and 3 for sulphur dioxide in respect of a combustion plant which to this end normally uses low-sulphur fuel, in cases where the operator is unable to comply with those limit values because of an interruption in the supply of low-sulphur fuel resulting from a serious shortage.

Member States shall immediately inform the Commission of any derogation granted under the first subparagraph.

6. The competent authority may grant a derogation from the obligation to comply with the emission limit values provided for in paragraphs 2 and 3 in cases where a combustion plant using only gaseous fuel has to resort exceptionally to the use of other fuels because of a sudden interruption in the supply of gas and for this reason would need to be equipped with a waste gas purification facility. The period for which such a derogation is granted shall not exceed 10 days except where there is an overriding need to maintain energy supplies.

The operator shall immediately inform the competent authority of each specific case referred to in the first subparagraph.

Member States shall inform the Commission immediately of any derogation granted under the first subparagraph.

7. Where a combustion plant is extended, the emission limit values specified in Part 2 of Annex V shall apply to the extended part of the plant affected by the change and shall be set in relation to the total rated thermal input of the entire combustion plant. In the case of a change to a combustion plant, which may have consequences for the environment and which affects a part of the plant with a rated thermal input of 50 MW or more, the emission limit values as set out in Part 2 of Annex V shall apply to the part of the plant which has changed in relation to the total rated thermal input of the entire combustion plant.

8. The emission limit values set out in Part 1 and Part 2 of Annex V shall not apply to the following combustion plants:

(a) diesel engines;

(b) recovery boilers within installations for the production of pulp.

9. For the following combustion plants, on the basis of the best available techniques, the Commission shall review the need to establish Union-wide emission limit values and to amend the emission limit values set out in Annex V:

(a) the combustion plants referred to in paragraph 8;

(b) combustion plants within refineries firing the distillation and conversion residues from the refining of crude-oil for own consumption, alone or with other fuels, taking into account the specificity of the energy systems of refineries;

(c) combustion plants firing gases other than natural gas;

(d) combustion plants in chemical installations using liquid production residues as non-commercial fuel for own consumption.

The Commission shall, by 31 December 2013, report the results of this review to the European Parliament and to the Council accompanied, if appropriate, by a legislative proposal.

Article 31

Desulphurisation rate

For combustion plants firing indigenous solid fuel, which cannot comply with the emission limit values for sulphur dioxide referred to in Article 30(2) and (3) due to the characteristics of this fuel, Member States may apply instead the minimum rates of desulphurisation set out in Part 5 of Annex V, in accordance with the compliance rules set out in Part 6 of that Annex.

Article 32

Transitional National Plan

1. During the period from 1 January 2016 to 31 December 2020, Member States may draw up and implement a transitional national plan covering combustion plants which were granted the first permit before 27 November 2002 or the operators of which had submitted a complete application for a permit before that date, provided that the plant was put into operation no later than 27 November 2003. For each of the combustion plants covered by the plan, the plan shall cover emissions of one or more of the following pollutants: nitrogen oxides, sulphur dioxide and dust. For gas turbines, only nitrogen oxides emissions shall be covered by the plan.

The transitional national plan shall not include any of the following combustion plants:

(a) those to which Article 33(1) applies;

(b) those within refineries firing low calorific gases from the gasification of refinery residues or the distillation and conversion residues from the refining of crude oil for own consumption, alone or with other fuels;

(c) those to which Article 35 applies.

2. Combustion plants covered by the plan may be exempted from compliance with the emission limit values referred to in Article 30(2) for the pollutants which are subject to the plan or, where applicable, with the rates of desulphurisation referred to in Article 31.

The emission limit values for sulphur dioxide, nitrogen oxides and dust laid down in the permit for the combustion plant applicable on 31 December 2015, pursuant in particular to the requirements of Directives 2001/80/EC and 2008/1/EC, shall at least be maintained.

Combustion plants with a total rated thermal input of more than 500 MW firing solid fuels, which were granted the first permit after 1 July 1987, shall comply with the emission limit values for nitrogen oxides set out in Part 1 of Annex V.

3. For each of the pollutants it covers, the transitional national plan shall set a ceiling defining the maximum total annual emissions for all of the plants covered by the plan on the basis of each plant’s total rated thermal input on 31 December 2010, its actual annual operating hours and its fuel use, averaged over the last ten years of operation up to and including 2010.

The ceiling for the year 2016 shall be calculated on the basis of the relevant emission limit values set out in Annexes III to VII to Directive 2001/80/EC or, where applicable, on the basis of the rates of desulphurisation set out in Annex III to Directive 2001/80/EC. In the case of gas turbines, the emission limit values for nitrogen oxides set out for such plants in Part B of Annex VI to Directive 2001/80/EC shall be used. The ceilings for the years 2019 and 2020 shall be calculated on the basis of the relevant emission limit values set out in Part 1 of Annex V to this Directive or, where applicable, the relevant rates of desulphurisation set out in Part 5 of Annex V to this Directive. The ceilings for the years 2017 and 2018 shall be set providing a linear decrease of the ceilings between 2016 and 2019.

Where a plant included in the transitional national plan is closed or no longer falls within the scope of Chapter III, this shall not result in an increase in total annual emissions from the remaining plants covered by the plan.

4. The transitional national plan shall also contain provisions on monitoring and reporting that comply with the implementing rules established in accordance with point (b) of Article 41, as well as the measures foreseen for each of the plants in order to ensure timely compliance with the emission limit values that will apply from 1 January 2021.

5. Not later than 1 January 2013, Member States shall communicate their transitional national plans to the Commission.

The Commission shall evaluate the plans and, where the Commission has raised no objections within 12 months of receipt of a plan, the Member State concerned shall consider its plan to be accepted.

When the Commission considers a plan not to be in accordance with the implementing rules established in accordance with point (b) of Article 41, it shall inform the Member State concerned that its plan cannot be accepted. In relation to the evaluation of a new version of a plan which a Member State communicates to the Commission, the time period referred to in the second subparagraph shall be six months.

6. Member States shall inform the Commission of any subsequent changes to the plan.

Article 33

Limited life time derogation

1. During the period from 1 January 2016 to 31 December 2023, combustion plants may be exempted from compliance with the emission limit values referred to in Article 30(2) and with the rates of desulphurisation referred to in Article 31, where applicable, and from their inclusion in the transitional national plan referred to in Article 32 provided that the following conditions are fulfilled:

(a) the operator of the combustion plant undertakes, in a written declaration submitted by 1 January 2014 at the latest to the competent authority, not to operate the plant for more than 20 000 operating hours, starting from 1 January 2016 and ending no later than 31 December 2023;

(b) the operator is required to submit each year to the competent authority a record of the number of operating hours since 1 January 2016;

(c) the emission limit values for sulphur dioxides, nitrogen oxides and dust laid down in the permit for the combustion plant applicable on 31 December 2015, pursuant in particular to the requirements of Directives 2001/80/EC and 2008/1/EC, shall at least be maintained during the remaining operational life of the combustion plant. Combustion plants with a total rated thermal input of more than 500 MW firing solid fuels, which were granted the first permit after 1 July 1987, shall comply with the emission limit values for nitrogen oxides set out in Part 1 of Annex V; and

(d) the combustion plant has not been granted an exemption as referred to in Article 4(4) of Directive 2001/80/EC.

2. At the latest on 1 January 2016, each Member State shall communicate to the Commission a list of any combustion plants to which paragraph 1 applies, including their total rated thermal input, the fuel types used and the applicable emission limit values for sulphur dioxide, nitrogen oxides and dust. For plants subject to paragraph 1, Member States shall communicate annually to the Commission a record of the number of operating hours since 1 January 2016.

3. In case of a combustion plant being, on … (35), part of a small isolated system and accounting at that date for at least 35 % of the electricity supply within that system, which is unable, due to its technical characteristics, to comply with the emission limit values referred to in Article 30(2), the number of operating hours referred to in point (a) of paragraph 1 of this Article shall be 18 000, starting from 1 January 2020 and ending no later than 31 December 2023, and the date referred to in point (b) of paragraph 1 and paragraph 2 of this Article shall be 1 January 2020.

4. In case of a combustion plant with a total rated thermal input of more than 1 500 MW which started operating before 31 December 1986 and fires indigenous solid fuel with a net calorific value of less than 5 800 kJ/kg, a moisture content greater than 45 % by weight, a combined moisture and ash content greater than 60 % by weight and a calcium oxide content in ash greater than 10 %, the number of operating hours referred to in point (a) of paragraph 1 shall be 32 000.

Article 34

Small isolated systems

1. Until 31 December 2019, combustion plants being, on … (32), part of a small isolated system may be exempted from compliance with the emission limit values referred to in Article 30(2) and the rates of desulphurisation referred to in Article 31, where applicable. Until 31 December 2019, the emission limit values laid down in the permits of these combustion plants, pursuant in particular to the requirements of Directives 2001/80/EC and 2008/1/EC, shall at least be maintained.

2. Combustion plants with a total rated thermal input of more than 500 MW firing solid fuels, which were granted the first permit after 1 July 1987, shall comply with the emission limit values for nitrogen oxides set out in Part 1 of Annex V.

3. Where there are, on the territory of a Member State combustion plants covered by this Chapter that are part of a small isolated system, that Member State shall report to the Commission before … (32) a list of those combustion plants, the total annual energy consumption of the small isolated system and the amount of energy obtained through interconnection with other systems.

Article 35

District heating plants

1. Until 31 December 2023, a combustion plant may be exempted from compliance with the emission limit values referred to in Article 30(2) and the rates of desulphurisation referred to in Article 31 provided that the following conditions are fulfilled:

(a) the total rated thermal input of the combustion plant does not exceed 200 MW;

(b) the plant was granted a first permit before 27 November 2002 or the operator of that plant had submitted a complete application for a permit before that date, provided that it was put into operation no later than 27 November 2003;

(c) at least 50 % of the useful heat production of the plant, as a rolling average over a period of five years, is delivered in the form of steam or hot water to a public network for district heating; and

(d) the emission limit values for sulphur dioxide, nitrogen oxides and dust laid down in its permit applicable on 31 December 2015, pursuant in particular to the requirements of Directives 2001/80/EC and 2008/1/EC, are at least maintained until 31 December 2023.

2. At the latest on 1 January 2016, each Member State shall communicate to the Commission a list of any combustion plants to which paragraph 1 applies, including their total rated thermal input, the fuel types used and the applicable emission limit values for sulphur dioxide, nitrogen oxides and dust. In addition, Member States shall, for any combustion plants to which paragraph 1 applies and during the period mentioned in that paragraph, inform the Commission annually of the proportion of useful heat production of each plant which was delivered in the form of steam or hot water to a public network for district heating, expressed as a rolling average over the preceding five years.

Article 36

Geological storage of carbon dioxide

1. Member States shall ensure that operators of all combustion plants with a rated electrical output of 300 megawatts or more for which the original construction licence or, in the absence of such a procedure, the original operating licence is granted after the entry into force of Directive 2009/31/EC of the European Parliament and of the Council of 23 April 2009 on the geological storage of carbon dioxide (36), have assessed whether the following conditions are met:

(a) suitable storage sites are available,

(b) transport facilities are technically and economically feasible,

(c) it is technically and economically feasible to retrofit for carbon dioxide capture.

2. If the conditions in paragraph 1 are met, the competent authority shall ensure that suitable space on the installation site for the equipment necessary to capture and compress carbon dioxide is set aside. The competent authority shall determine whether the conditions are met on the basis of the assessment referred to in paragraph 1 and other available information, particularly concerning the protection of the environment and human health.

Article 37

Malfunction or breakdown of the abatement equipment

1. Member States shall ensure that provision is made in the permits for procedures relating to malfunction or breakdown of the abatement equipment.

2. In the case of a breakdown, the competent authority shall 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.

The operator shall notify the competent authority within 48 hours after the malfunction or breakdown of the abatement equipment.

The cumulative duration of unabated operation shall not exceed 120 hours in any 12-month period.

The competent authority may grant a derogation from the time limits set out in the first and third subparagraphs in one of the following cases:

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

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

Article 38

Monitoring of emissions into air

1. Member States shall ensure that the monitoring of air polluting substances is carried out in accordance with Part 3 of Annex V.

2. The installation and functioning of the automated monitoring equipment shall be subject to control and to annual surveillance tests as set out in Part 3 of Annex V.

3. The competent authority shall determine the location of the sampling or measurement points to be used for the monitoring of emissions.

4. All monitoring results shall be recorded, processed and presented in such a way as to enable the competent authority to verify compliance with the operating conditions and emission limit values which are included in the permit.

Article 39

Compliance with emission limit values

The emission limit values for air shall be regarded as being complied with if the conditions set out in Part 4 of Annex V are fulfilled.

Article 40

Multi-fuel firing combustion plants

1. In the case of a multi-fuel firing combustion plant involving the simultaneous use of two or more fuels, the competent authority shall set the emission limit values in accordance with the following steps:

(a) taking the emission limit value relevant for each individual fuel and pollutant corresponding to the total rated thermal input of the entire combustion plant as set out in Parts 1 and 2 of Annex V;

(b) determining fuel-weighted emission limit values, which are obtained by multiplying the individual emission limit value referred to in point (a) by the thermal input delivered by each fuel, and dividing the product of multiplication by the sum of the thermal inputs delivered by all fuels,

(c) aggregating the fuel-weighted emission limit values.

2. In the case of multi-fuel firing combustion plants referred to in Article 30(2), which use the distillation and conversion residues from the refining of crude-oil for own consumption, alone or with other fuels, the following emission limit values may be applied instead of the emission limit values set according to paragraph 1:

(a) where, during the operation of the combustion plant, the proportion contributed by the determinative fuel to the sum of the thermal inputs delivered by all fuels is 50 % or more, the emission limit value set in Part 1 of Annex V for the determinative fuel;

(b) where the proportion contributed by the determinative fuel to the sum of the thermal inputs delivered by all fuels is less than 50 %, the emission limit value determined in accordance with the following steps: (i) taking the emission limit values set out in Part 1 of Annex V for each of the fuels used, corresponding to the total rated thermal input of the combustion plant; (ii) calculating the emission limit value of the determinative fuel by multiplying the emission limit value, determined for that fuel according to point (i), by a factor of two, and subtracting from this product the emission limit value of the fuel used with the lowest emission limit value as set out in Part 1 of Annex V, corresponding to the total rated thermal input of the combustion plant; (iii) determining the fuel-weighted emission limit value for each fuel used by multiplying the emission limit value determined under points (i) and (ii) by the thermal input of the fuel concerned and by dividing the product of this multiplication by the sum of the thermal inputs delivered by all fuels; (iv) aggregating the fuel-weighted emission limit values determined under point (iii).

3. In the case of multi-fuel firing combustion plants referred to in Article 30(2), which use the distillation and conversion residues from the refining of crude-oil for own consumption, alone or with other fuels, the average emission limit values for sulphur dioxide set out in Part 7 of Annex V may be applied instead of the emission limit values set according to paragraphs 1 or 2 of this Article.

Article 41

Implementing rules

Implementing rules shall be established concerning:

(a) the determination of the start-up and shut-down periods referred to in point 26 of Article 3 and in point 1 of Part 4 of Annex V; and

(b) the transitional national plans referred to in Article 32 and, in particular, the setting of emission ceilings and related monitoring and reporting. Those implementing rules shall be adopted in accordance with the regulatory procedure referred to in Article 75(2). The Commission shall make appropriate proposals not later than … (37).

CHAPTER IV

SPECIAL PROVISIONS FOR WASTE INCINERATION PLANTS AND WASTE CO-INCINERATION PLANTS

Article 42

Scope

1. This Chapter shall apply to waste incineration plants and waste co-incineration plants which incinerate or co-incinerate solid or liquid waste.

This Chapter shall not apply to gasification or pyrolysis plants, if the gases resulting from this thermal treatment of waste are purified to such an extent that they are no longer a waste prior to their incineration and they can cause emissions no higher than those resulting from the burning of natural gas.

For the purposes of this Chapter, waste incineration plants and waste co-incinera