Opinion of the European Economic and Social Committee on the "Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions — On the road to sustainable production: progress in implementing Council Directive 96/61/EC concerning integrated pollution prevention and control" (COM(2003) 354 final)
Date: 2003-12-10
Institutions: European Economic and Social Committee
Subjects: ESC opinion, EU environmental policy, pollution control measures, prevention of pollution, sustainable development

30.3.2004

EN

Official Journal of the European Union

C 80/29

Opinion of the European Economic and Social Committee on the ‘Communication from the
Commission to the Council, the European Parliament, the European Economic and Social
Committee and the Committee of the Regions — On the road to sustainable production: progress
in implementing Council Directive 96/61/EC concerning integrated pollution prevention and
control’

(COM(2003) 354 final)

(2004/C 80/09)

On 19 June 2003, the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the above-mentioned
communication.

The Section for Agriculture, Rural Development and the Environment, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 13 November 2003. The
rapporteur was Mr Braghin.

At its 404th plenary session held on 10 and 11 December 2003 (meeting of 10 December), the European
Economic and Social Committee adopted the following opinion by 110 votes for, none against and one
abstention.

1.

Introduction

1.1.
The Communication refers to the progress which has
so far been made in the Member States and in the candidate
countries on integrated pollution prevention and control. The
Commission has a clear message: a high level of protection of
the environment, which is the overriding objective of Directive
96/61/EC known as the IPPC Directive, can only be achieved
implementation make the
if the authorities in charge of
implementation and engage
efforts necessary for correct
in constructive interaction with plant operators and other
stakeholders, including trade unions in particular.

1.2.
The directive already applies to new or substantially
altered installations. The final deadline for existing installations
to apply the best available techniques (BAT) and meet all other
requirements laid down by the directive is October 2007. In
the acceding countries, the actual implementation is at a very
early stage or has yet to start, and transition periods have been
negotiated for the application of the directive at new and/or
existing installations. However, they will not need to meet
emission limit values based on the best available techniques
until 2008-2012.

1.4.
Authorities in charge of implementation and plant
operators should discuss investment planning, bearing in mind
the cycle of investments and weighing any economic or
financial disadvantages, in view of the fact that conditions for
authorisation for all plants must be established in accordance
with the provisions of the Directive no later than 2007.

1.5.
Ambiguities in the directive have caused difficulties in
implementation, either as regards definitions (for example the
threshold criteria whereby an installation is covered by the
directive, the boundaries of an installation, when should a
change be considered as ‘substantial’, what is meant by ‘return
the site to a satisfactory state’) or in practical implementation
(how should permit conditions be written for certain aspects,
how often should inspections be carried out, when should
companies that are not fulfilling requirements be prosecuted).

1.6.
As regards application of the directive, systematic
sector-by-sector benchmarking and comprehensive screening
and assessment of the techniques applied is carried out:
information exchange is co-ordinated and facilitated by the
European IPPC Bureau, which is based in Seville, and has led
to the drawing up of the so-called BREF documents (BAT
Reference documents) with the collaboration of
informal
networks of experts in industry, Member States and non-
governmental organisations. So far, 15 BREFs have been
produced, another 11 are at the draft stage, four have been
started and two more are to be started.

1.3.
Transposition and implementation have not been
carried out in a timely fashion in all Member States in the case
of this directive and the Commission has identified major
suspected or confirmed shortcomings in the national legis-
lation transposing Directive 96/61/EC. Particularly worrying is
the fact that in some cases there are no provisions for ensuring
that existing installations comply by October 2007 or for the
subsequent periodical review of permits.

1.7.
A study carried out on three major and technologically
advanced sectors shows that the application of BAT does not
prevent companies from remaining competitive, and plants
that perform well on the environmental front are able to use
this as a competitive strength, although this situation is not
widespread.

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The notion of BAT is not rigid, it can actually vary
1.8.
within a sector from one plant to another because costs and
benefits can obviously vary. In the Commission’s opinion, this
is one of the most significant aspects since it allows a balance
between different environmental impacts and associated costs.
Therefore, the Commission believes that it is important to
retain this approach, which entails dialogue between operator
and authority.

The cross-cutting approach of the directive creates an
1.9.
interaction with a large number of EU environmental direc-
tives, regulations and other policies and measures, and it is
important to ensure optimal consistency and to examine
whether there are any obstacles to the creation of an effective
mix of policy tools at EU or national level. There is a dilemma,
however, between the setting of Community emission limit
values by means of directives when ‘the need for Community
action has been identified’ and a decentralised approach (such
as the IPPC Directive) which allows the competent authorities
to make pragmatic choices, satisfying both environmental and
economic issues.

1.10.
The Commission believes that some amendments
must be made to the directive, to take into account changes in
legislation (in particular following the adoption of directives
on public participation in the permit procedure which are
required to ratify the Aarhus Convention of 1998), or to clarify
relevant aspects (such as the above-mentioned problem of
defining threshold criteria in particular sectors, or the problem
of application, as in the case of waste where it is difficult to
make the distinction between recovery and disposal).

The Commission has already carried out a broad
1.11.
Europe-wide consultation on the current state of play and
possible developments in those areas of environment policy
which cover the impact of major industrial pollution sources
on the environment, to ensure that there is full consistency
between them and to explore the possibility of using new
approaches providing incentives to companies to further
improve their environmental performance.

1.12.
Should the need for any amendments to the directive
result from this consultation, a new phase of broader consul-
tation will be necessary,
in addition to an assessment of
Member State implementation progress reports. The Com-
mittee would suggest that the Commission summary and the
national reports should be made available to the public.

2. General considerations on the IPPC approach

2.1.
The approach taken by the IPPC Directive was defi-
nitely innovative, anticipating the choice to adopt framework
legislation or global thematic strategies. Discussions on emis-
sions should consider the three environmental areas (air, water
and land) since the impact of emissions on these areas is
generally linked and inseparable. We also need to ensure
flexibility in implementation, by identifying the best available
techniques in specific local contexts and bearing in mind the
cost and benefit ratio. The integrated approach to pollution,
connected to local quality of the environment, required a
cultural and scientific jump on the part of the supervisory
authorities and the operators, assuming the collection and
exchange of information and dialogue to prevent and correct
the environmental impact of industrial and, sometimes, agri-
cultural activity. In many opinions concerning these topics
either directly or indirectly, the EESC has found all these issues
to be positive.

2.2.
The directive is designed to be an avant-garde tool in
the strategy for sustainable development as part of the local
agenda 21 programmes, as well as forming a legislative
framework for a series of voluntary instruments that have
been set up in the meantime, from EMAS registration to
agreements on emissions trading. It involves comprehensive
information gathering, resulting in better knowledge of the
state of the environment, the impact of various types of
pollution and their interaction, thus giving citizens an access-
ible picture with a view to improving public participation in
the drawing up of environmental plans and programmes (1).

2.3.
These innovative aspects explain, at least in part, the
difficulties of transposition and application that have emerged,
and the limited number of plants that
the Commission
has been able to evaluate. The picture emerging from the
Commission Communication is cause for concern, in particu-
lar bearing in mind the 2007 deadline, when even existing
plants should have undergone the permit procedure laid down
by the directive.

2.4.
The imminent accession of ten new Member States,
whose resources and know-how in this field seem to be even
more limited, makes the situation even more critical. Therefore,
it is urgent firstly to pinpoint problems in the system to date,
and identify and incorporate existing good practices, and
secondly, to plan inspections, information and training (includ-
ing technical training) for administrative staff to enable them
to cope adequately with this situation, and in particular with
the difficult phase when existing plants will undergo the permit
procedure laid down by the directive.

(1) OJ C 221, 7.8.2001 — COM(2000) 839 final — OJ C 154,

29.5.2001.

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The distortions encountered in the application of the
2.5.
directive may result from intrinsic limitations (which must be
corrected), vague definitions (which must be clarified as soon
as possible) or varying traditions and approaches on the
environment. The EESC shares the concern expressed in the
Communication regarding the provision of measures to allow
the 2007 deadline to be respected fully; the deadline cannot
be avoided simply by postponing compliance at individual
plant level.

By introducing the flexible concept of

techniques
2.9.
rather than technologies and prescribing the need to bear in
mind costs and benefits as well as local conditions, the
IPPC Directive leaves to the national and local supervisory
authorities the right and obligation of deciding what consti-
tutes BAT for each plant, with due regard for the diversity and
complexity of industrial processes, the innumerable inter-
connections in every plant between machines, processes,
purification systems and — no less important — the local
conditions and methods of working.

It is plausible that SMEs make up a significant part of
2.6.
all IPPC installations in Europe, sometimes without knowing
it, and for these enterprises, complying with environmental
legislation is a major challenge. The authorities in charge of
implementation and supervision will therefore need to give
special assistance to operators and provide themselves with
sufficient personnel and resources.

The system may be effective, resulting in similar
2.10.
levels of environmental protection and supervision in plants
throughout the EU, but only with a constant process of
information exchange so that the statistical links between the
techniques considered to be the best and the emission limit
values resulting from them can be established.

The EESC therefore hopes that the Commission will
2.6.1.
carry out a more detailed analysis of
the difficulties in
implementation which have been encountered, and if necess-
ary, via a short guide and appropriate guidelines drawn up by
the technical Community bodies which have already been set
up, clarify the most important issues to date, such as the criteria
for identifying the companies covered by the regulations, how
to formulate the environmental permit, the technical and
human resources needed by the administration in charge of
implementation, the possibilities for voluntary agreements,
interaction with other directives or regulations, etc. This would
be especially useful for new Member States and SMEs.

2.7.
Every action designed to facilitate the implementation
of the IPPC Directive, even if aimed at large industrial plants,
has an intrinsic effect on small business. They must cope with
the resulting problems with economic means and human
resources that are insufficient
for the interpretation and
execution of
the procedure for requesting a permit and
subsequently the investments required for their commitments.
In the opinion of the EESC, the initiatives needed to support
SMEs during the IPPC implementation process should be
carried out at national or regional
level rather than at
Community level.

The development and exchange of information at EU
2.11.
level on the best available techniques, especially resulting from
the Information Exchange Forum (IEF) and the Member States’
informal network of authorities responsible for implemen-
tation and enforcement of EU environmental law (IMPEL), has
definitely been successful. However, much remains to be done
to broaden this exchange to include all regional and local
authorities, especially in the candidate countries, and stake-
holders, particularly the sectoral associations that could be the
principal instrument for the promotion and application of
BAT in specific sectoral and local contexts.

The EESC believes that a linked and proactive
2.12.
approach should be adopted to promote implementation of
the directive, including informing and training stakeholders (in
particular the local and other authorities in charge of permits
as well as operators), exchanging best practice and involving
local employers’ associations and trade unions, so as to have a
consensus when planning the investments required.

2.13.
A pre-condition for the realisation of this proactive
policy is the reinforcement of the teams of experts and the
organisational structure of the Seville JRC, which appears to
be inadequate even for drawing up the BREF, which is its main
task. The EESC hopes that its tasks will be extended to include
disseminating information and active participation in training,
seminars, conferences etc, in addition to evaluating the appli-
cation and use of the BREF.

2.8.
The directive includes a comprehensive definition of
‘best available techniques’ that is supplemented by 12 specific
considerations listed in an annex, so that they can be applied
to specific sectors. It is necessary to assess the estimated
net costs of implementing a technique in relation to the
environmental benefits, i.e. carry out an accurate cost/benefit
analysis.

2.14.
Local pilot projects have shown that cooperation
between the responsible authorities and industrial associations
may overcome entrenched resistance on sensitive issues such
as information security and loss of competitiveness, and
facilitate information dissemination and training procedures
for operators, which are crucial issues bearing in mind the
2007 deadline.

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3. Specific comments

3.1.
The definition of plant capacity as the rated capacity
of the installation to operate 24 hours a day, provided that the
equipment is capable of being operated in that way, is not
appropriate for all sectors and for many smaller units which
operate flexibly on the basis of current market demand and
occasionally on a seasonal basis. In this case, there are no
precise figures for the real output or the pollution potential of
the installation. The EESC therefore believes that the criteria
for applying the directive should be revised, with real output
being examined over a given period of time, at least for a few
sectors or types of plants, as indicated in point 7.3.1 of the
Communication.

3.2.
The EESC also believes that something should be done
about finding a precise definition for ‘emission limit values’
and deciding how to express, measure and monitor emissions.
The definition of pollution is clear and precise: it involves the
introduction of negative effects into the environment,
in
particular the introduction of pollutants. The methods for
expressing this quantity differ among Member States. The lack
of a single consistent method to express this basic data reduces,
or even prevents, any possibility of obtaining a clear reading
of the correlation between BAT in use and the associated
pollution. The EESC takes note of the difficulties involved in
rapid standardisation and harmonisation of
the different
methods that have been used for years in Member States, but
hopes that the Information Exchange Forum will lead to an
improvement in techniques for comparing data.

The EESC agrees that it is important to ensure a high
3.3.
level of environmental protection for waste management
facilities, but the complexity of legislation in this field would
suggest that any move to group these installations under the
IPPC Directive should wait until it is time for the directive to
be amended.

The implementation of BAT and the ongoing BREF
3.5.
should be accelerated in view of the 2007 deadline, and
particular attention should be given to the problem of
distributing them to the competent authorities and economic
operators (associations and individual operators). The decision
not to publish the BREF in paper form nor to translate the
documents into all Community languages is admirable in
terms of practicality and cost, but having them available only
in electronic form may cause problems as regards direct
reading on the part of individual users or distribution to
decentralised offices. Moreover, the EIPPCB (European Inte-
grated Pollution Prevention and Control Bureau) regards the
number of BREF documents downloaded from its site as
satisfactory. The initiative to translate the Executive Summaries
into all languages is praiseworthy, although for the above
reasons, it would be useful to make them available in non-
electronic form as well.

3.6.
It would be useful to examine the reception and
evaluation of the BREF by the business community involved
in drawing up the documents and the competent authorities
in individual Member States (which would give their opinion
in view of the specific tasks awaiting them: requesting and
awarding a permit). If the evaluation were to be positive, one
or more businesses and/or industrial associations from each
sector might find that it would be in their interest to make an
economic contribution towards the publication of the BREF in
paper form, or even publish the BREF as Manuals of Applied
Technology, in addition to being consultation and training
tools for staff in the plants to which that BREF refers. Highly
developed States and industrial sectors outside the European
Union refer to the BREF, which indicates that these forms of
distribution would increase the possibility of the BREF being
hailed as an international frame of reference.

3.7.
Since the BREF were published only recently and are
not yet generally applied, the EESC believes that it would be
premature to consider revising these documents in the short
to medium term, since this could give rise to confusion and
even uncertainty when applying the BREF.

4. Questions raised for consultation

The EESC feels that

3.4.
it would be appropriate and
realistic to revise and correct the list of activities covered by
the directive, excluding all plants, especially small ones, which
have a low polluting capacity or that in any case affect the
environment in only one of the three environmental areas (air,
water and land), since this situation can already be monitored
through existing legislation.

4.1.
In the Communication, the Commission lists a series
of questions designed to steer the consultation process towards
specific objectives and desirable outcomes. The EESC hopes
that
summarising the points
developed explicitly above, will contribute constructively to
this process.

the following comments,

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The first set of questions (questions 1a and 1b, and 2)
4.2.
concerns suggested or desirable action at Community or
Member State level, in order to find solutions to the implemen-
tation difficulties that have been encountered. The following
points are highlighted:

The EESC is aware of the importance of the 2007
4.2.2.
deadline, which must not become a pretext for questioning
the IPPC approach, but feels that it would be reasonable to
allow for an appropriate period of time for the implementation
of measures agreed on between plant managers and public
authorities, if justified by force majeure or by the length of the
investment cycle.

— steps must be taken regarding varying interpretations and
difficulties in application (§ 2.5), especially if these are a
result of ambiguous definitions or criteria (§ 3.2 and 3.3).
Initially a solution could be to draw up guidelines (§ 2.6.1)
rather than amending the directive;

— given the reluctance of the Member States to accept a
precise and unambiguous definition of the term ‘emission
limit values’, the EESC suggests that the problem should
be dealt with and resolved by the appropriate technical
mechanisms with the coordination of the Commission
(§ 3.2);

— steps must be taken to inform and train stakeholders
(§ 2.12): Community action should encourage this type
of activity, which should mostly be carried out at national
and local level under the direct supervision of Member
States. Appropriate Community action would include
strengthening the structure and extending the tasks of the
Seville JRC (§ 2.13), as well as promoting and coordinat-
ing seminars and conferences to train staff working in the
area of obtaining and granting permits, management and
related controls.

4.2.3.
The EESC is aware of the length of the legislative
process, but does not exclude the possibility of modifying the
directive for particularly delicate issues, in particular the list of
activities covered by the directive, the threshold criteria for
determining whether a business falls within its scope (§ 3.4),
and the definition of ‘installation’ and ‘substantial change’.

4.2.4.
The problems of SMEs have been considered in many
earlier paragraphs (in particular 2.7 and 2.14), and the EESC
suggests the following SME support measures:

— identifying instruments and indicators to check the
applicability of the directive to the specific situation of
any given business, which could well differ significantly
from one Member State to another;

— forming groups of experts on a voluntary and local basis
to help in the application of BAT, who could take
advantage of the Community coordination described
above;

— incentives for the training of

technical staff, either
financially or in the form of a guide or training manuals
drawn up at Community level;

4.2.1.
applied instruments at Community level, such as:

The EESC would also recommend several easily

— incentives for innovated investments in plant that enable

compliance with the directive.

— monitoring data on emissions and the application of
BAT, using the European Pollutant Emission Register, and
distributing such data to decentralised units, whether
public authorities or economic operators;

— drawing up user-friendly manuals to guide stakeholders

in the application of the directive;

4.3.
Questions 3 and 4 on BAT and the value and
importance of the BREF and their distribution at international
level have already been fully answered in the preceding
paragraphs (§ 2.11, 3.5, 3.6 and 3.7). The EESC recognises the
value of these documents, and calls for specific initiatives
to distribute them,
including internationally either as an
instrument for encouraging sustainable production outside the
EU, or as part of the stakeholder training efforts undertaken
by the JRC, which will need back-up and funding to cope with
this new task (§ 2.13 and 4.2).

— using the public participation measures adopted to com-
to secure greater

ply with the Aarhus Convention,
involvement of all stakeholders.

Information exchange, which is currently performed
4.3.1.
mainly vertically, must be extended to the horizontal dimen-
sion, i.e. the distribution of the information itself. This could
form the basis of the training processes described above as
important.

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The EESC calls for an initiative again coordinated by
4.3.2.
the JRC, to promote a process of dissemination and exchange
which would involve Member States and local authorities in
each Member State, and the various industrial sectors, and
have the aim of carrying out studies, translating into local
languages and drawing up and distributing simplified summar-
ies (the BREF or parts of the BREF for each State or industrial
sector).

4.4.
Experience thus far and the as yet limited practical
application would suggest that the scope of the directive
should not yet be modified (question 5). Were the directive to
be modified, bearing in mind the relatively lengthy procedure
involved, the EESC would reiterate the comments made in
points 2.6.1, 3.1, 3.2 and 4.2.2-4.2.3.

Question 6 is extremely complex and should be broken
4.5.
down into smaller parts. In the Committee’s opinion, setting
Community emission limit values (minimum requirements) is
a tool that has proven its usefulness, if limited to contexts
when it is truly necessary and if specific to particular fields.
These limitations do not imply any negation of the approach
taken by the IPPC, which is certainly preferable but which may
take into consideration specific thresholds that may be seen as
parameters for applying BAT and analysing the local con-
ditions for application. The two approaches are not contradic-
tory, provided the authorities in charge of implementation
succeed in understanding and managing the process with
sufficient sensitivity for the economic and social interests at
stake, and plant operators understand the need to carry out
checks so as to comply with all the standards imposed, with
pragmatic mechanisms which do not make the operation
unprofitable. In any case, there is an evident need for dialogue
with sector companies, together with incentives to accelerate
practical implementation.

Brussels, 10 December 2003.

The various environmental laws (question 7) must be
4.6.
consistent if they are to be credible and put into action. A
greater effort is asked of the legislator and of the authorities in
charge of application, and it
is hoped that a summary
document will be prepared clarifying all the existing links
between the IPPC and all remaining environmental legislation,
thus allowing operators an overall view. European directives
may take on differing structures and forms when they are
transposed into national legislation, but operators and auth-
orities seek principles and connections in Community legis-
lation; in this case, connections between legislation applying
to large plant, chemical substances, air, water, soil and waste,
and the IPPC Directive. The EESC therefore suggests that a
detailed and in-depth study of the interaction between the
IPPC and other European directives on the environment and
environmental
impact should be carried out as soon as
possible, starting with the evaluation of the reports by Member
States on the application of the IPPC Directive, and giving
examples of individual States or sectors.

4.6.1.
The Committee hopes to be able to cooperate pro-
actively in this study, exploiting its experience and links with
organised civil society at various levels, including the national
level, if necessary involving its own system of groups and a
hand-picked group of experts which would not be limited to
its own members.

As regards question 7b, the EESC believes that the IPPC
4.7.
and the associated process of information exchange already
contain the elements for the correct application of those
principles of law which have been introduced, but they are
sufficiently complicated without adding any further tools, even
voluntary tools. As regards emission trading, it would seem
premature to enter into a discussion on that subject at this
stage. It is vital to ensure that the monitoring and control
system is watertight and to avoid any major impact on the
environment at local level.

The President

of the European Economic and Social Committee

Roger BRIESCH