Opinion of the Committee of the Regions on Industrial emissions
Date: 2008-10-09
Institutions: European Committee of the Regions
Subjects: air quality, environmental policy, impact study, industrial pollution, pollution control measures, prevention of pollution, reduction of gas emissions, waste incineration

C 325/60

EN

Official Journal of the European Union

19.12.2008

Opinion of the Committee of the Regions on ‘Industrial emissions’

(2008/C 325/10)

THE COMMITTEE OF THE REGIONS

— emphasises that the reduction of industrial emissions is most important in the case of air pollution;
the Industrial Emissions Directive is an important European measure enabling member states to meet
their emissions targets by 2020;

— believes that with respect to air pollution the Directive is not ambitious enough and is disappointed
with the weak emissions limit value (see Appendix I) for large combustion plants; the Committee
would also like to point out that there is still a significant difference between the emission limit values
contained in the proposal and those set out in the corresponding BREF (Best Available Technique
Reference) document for large combustion plants; these values should be brought into line and
strengthened;

— strongly advises the inclusion of a practical revision system which enables the partial revision of the
Directive (e.g. the technical chapters and emission limit values) via the co-decision procedure;
is
furthermore concerned with future adaptations of legislation that will be carried out according to the
Seville process (see Appendix I), which is not a legal procedure provided for in the Treaty and is not
subject to democratic scrutiny;

— strongly disagrees with the Commission's proposal to establish criteria for granting derogations on the

basis of local conditions under the comitology procedure;

— the criteria for granting derogations should have been defined in the Directive itself (and thus
decided by a co-decision procedure) and should not be defined in the future at the EU level via the
comitology procedure, in which Committee of the Regions and other representatives of local and
regional authorities are not consulted;

— with reference to the subsidiarity principle, the weighing of local environmental conditions against
environmental costs and benefits as well as technical feasibility should be defined by local and
regional authorities via local and regional democratic processes.

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Rapporteur: Mr Cor LAMERS (NL/EPP), Mayor of Houten

Reference documents

Communication from the Commission: Towards an improved policy on industrial emissions

COM(2007) 843 final

and the

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

COM(2007) 844 final — 2007/0286/COD

I. POLICY RECOMMENDATIONS

THE COMMITTEE OF THE REGIONS

General recommendations

that

notes

local and regional authorities

1.
in various
EU Member States play a critical role in implementing environ-
mental and industrial policies, and have wide competences in
prevention policies and enforcement of pollution control.

2.
strongly supports pollution prevention and the polluter
pays principle, and therefore appreciates this aim of the Indus-
trial Emissions Directive.

3.
emphasises the importance of source-based measures. It is
essential that the causes of pollution be identified and emissions
dealt with at source, in the most economically and environmen-
tally friendly manner.

4.
notes that in both urban and rural areas, the quality of air,
water and soil are issues directly affecting citizens' daily lives.
Large industrial
installations in the EU still account for the
release of a considerable proportion of key pollutants.

5.
notes that clean air and water policies have a cross-border
dimension and therefore require action at EU level. It therefore
welcomes the Industrial Emissions Directive because it
is a
European instrument to decrease industrial emissions at source.

Environmental benefits

the proposal

strongly believes that

includes measures
6.
which are necessary and have a considerable potential
for
achieving environmental benefits. In this perspective, it appreci-
ates the improved use of the BREF documents (Best Available
Technique Reference Documents, see Appendix 1) as proposed
by the Directive, since this will result in increased environmental
benefits.

7.
emphasises that the reduction of industrial emissions is
mostly important in the case of air pollution. The Industrial
Emissions Directive is an important European measure enabling
member states to meet their emissions targets by 2020. The
inclusion of a lower category of large combustion plants, from
20 to 50 megawatts (MW). is therefore an important aspect of
the new Directive.

believes that with respect to air pollution the Directive is

8.
not ambitious enough:

— it is disappointed with the weak emissions limit value (see
Appendix I) of the large combustion plants. Also we would
like to point out that there is still a significant difference
between the emission limit value of the proposal and that of
the corresponding LCP BREF document (Best Available Tech-
nique Reference Document of large combustion plants, see
Appendix 1). These values should be synchronised and
strengthened;

— it disagrees with the five-year implementation period for
large combustion plants and proposes an implementation
period of three years which is similar to the other chapters
of the Directive.

9.
is therefore concerned that the Directive might lead to
mostly short-term benefits. It is very much concerned about the
possible limited long-term benefits (see paragraph 17).

The current IPPC system

10.
stresses that the IPPC (Integrated Pollution Prevention
and Control) permits (see Appendix I) should remain based on
an integral approach taking into consideration the environment,
production, technical feasibility, cost effectiveness and equally
important, local conditions.

agrees with the European Commission that

11.
the IPPC
Directive is currently not properly implemented in all Member
States. The IPPC Directive has been rather difficult to implement
and the BREF documents have not always been used, also due
to their rather technical and difficult nature.

12.
has noticed that permits reflect more the centralized and
homogenized stated standards and requirements. Even though
this seems positive, it is therefore becoming more difficult to
detect what companies do, produce,
treat or optimize by
looking at the permits.

13.
holds the opinion that the Industrial Emissions Directive
(which includes a review of the IPPC Directive) was presented
only weeks after the implementation deadline of the current
IPPC legislation, which was set at 31 October 2007. The review
therefore occurs before the present IPPC legislation has had a
chance to demonstrate its workability and efficiency, and more
important, before its effect
in terms of emission reductions
could be fully assessed.

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The consolidation of seven Directives into one

The new status of the BREF documents

14.
believes that the consolidation of seven Directives into
one Directive is a very ambitious approach, a step-by-step
approach or a framework Directive with daughter Directives
might have been preferable. A framework Directive would also
present an opportunity for other, directly linked Directives, like
the Suburban Wastewater Directive, to be included, without
jeopardizing future revisions of the framework Directive.

is satisfied with the recent improvements of the BREF
20.
documents and values them as useful reference documents. The
main part of the BREF documents is however only available in
English, which might cause difficulties for regional and local
supervisory and permit issuing authorities. It therefore requests
translation of the essential chapters of the BREF documents (for
example those which establish the best available technique (BAT,
see Appendix 1) for a specific industry) in all EU languages.

15.
is in favour of the principle of Better Regulation. The
Commission's proposal to consolidate seven Directives seems to
correspond with this principle. To a certain extent, the new
Directive simplifies permit
It believes,
however, that the different parts of the Directive have not been
consolidated completely and, because there are still considerable
differences between the Directive and the BREF documents, not
all practical difficulties will be solved.

issuing procedures.

21.
finds it unjustified that the BREF documents are not used
more often in the EU, and recommends an improved use of
them. We therefore agree with the new status of the BREF docu-
ments, and the further obligation to use them in the permit
procedure. It interprets the new status of the BREF documents
as more binding, since these documents (which are at present
solely reference documents, which have to be consulted, but are
not obligated) shall be in all practical terms now obligatory.

16.
questions whether current inconsistencies and ambigu-
ities in definitions are solved within this proposal. For example,
it is unclear what effect the new definition of BAT (from best
available technology to best available technique) will have.
Taking into account
the wider perspective of a technology
instead of the sole technique, will connect better to business
investment, will benefit a fair level playing field and thus will
lead to more creative solutions for environmental challenges.

17.
is seriously concerned the consequences that consolida-
tion might have on future revisions. The proposal now includes
several different areas of technical expertise. The length and
especially the complexity will make it very difficult,
if not
impossible to revise the Directive in the future, and to adapt
legislation to future needs and to technological developments by
setting more stringent operational requirements e.g. emission
limit values.

understands that the Commission proposes to deal with
18.
the problem of difficult future revisions via the linkage between
the Directive and the BREF documents. The Directive sets
minimum standards which have to be met and the BREF docu-
ments, which can easily be revised, will keep the system up to
date according to technological developments and stricter asso-
ciated emissions limit levels (BAT-AEL, see Appendix I). It has
serious concerns about future differences which might arise
between the BAT-AELs (in revisable BREF documents) and the
emission limit values (in the Directive). There is a significant
risk that the system might become outdated and thus might
contribute little to future environmental developments.

revision of

strongly advises the inclusion of a practical revision
19.
system which enables the partial
the Directive
(e.g. the technical chapters and emission limit values) via the
co-decision procedure. It is furthermore concerned with future
adaptations of legislation that will be carried out according to
the Seville process (see Appendix I), which is not a legal proce-
dure foreseen by the Treaty and is not subject to democratic
scrutiny.

22.
perceives that there are possibilities for improvements in
the BREF documents. Innovations and improvement according
to the production process are sometimes lacking. For example,
monitoring variations in sampling are presently used to penalize
companies, whereas they could also be used to improve techni-
ques. Another example miss-match between the volatile organic
compounds chapter in the Directive and the corresponding
BREF document. As a result,
the cleanest
to
approach might not always be prioritised.
improve the local environment should always be promoted by
local authorities if possible and the quality of the BREF docu-
ments should be sufficient enough to aid competent authorities.

is feared that

Innovations

it

believes the new status of

23.
the BREF documents will
enhance policy consistency with a view to issuing pollution
permits and in turn will contribute to establishing a level
playing field for competing European companies.

24.
finds the Seville process (see Annex 1) a necessary and
well-established process. In Seville BREF documents are created
and updated on the basis of meetings between European
Commission officials and experts from the Member States,
industries and NGOs. The cooperation between these parties is
vital to establish new best available techniques and to create
new or revised BREF documents. Therefore this process should
be further extended in the Directive as is presently the case.

25.
has noted that representatives of the local and regional
authorities are not part of the Seville process and requests an
invitation for these representatives to the Seville process. As
permitting authorities and/or bodies in charge of inspections,
regional and local authorities have important knowledge about
best available techniques, and consequently the Seville process
can be improved through the participation of representatives of
local and regional authorities.

would like to indicate that the new status of the BREF
26.
documents might have a negative impact on the Seville process
(see Appendix I). Reaching consensus on best available techni-
ques will be more challenging due to the new character of the

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BREF documents, as Member States, industries and NGOs might
adopt a more strategic behaviour when determining a BREF.
Due to production costs,
industries would benefit from less
innovating standards in the BREF documents. In this case, the
Seville process might become a slow and opaque political
process instead of a search for the best technical solutions.

believes this situation might result in weaker documents.
27.
As a result, we will be left with an outdated and weak instru-
ment, which does not stimulate innovation and would not
improve environmental quality, but actually weakens the imple-
mentation of the new Industrial Emissions Directive.

Policy making:
conditions

Flexibility

and

local

environmental

28.
agrees with the aims of the new Industrial Emissions
Directive to enhance policy consistency with a view to issuing
pollution permits.

29.
would like to point out that local and regional authorities
have competences in issuing permits that vary from Member
State to Member State. For example,
in Denmark both local
authorities and the national government are responsible for
issuing permits. In the Netherlands, municipalities and provinces
issue licenses to the polluters, whereas in the United Kingdom,
air pollution from major sources is dealt with by the central
government. The dominant pattern of the involvement of local
and regional authorities in this policy throughout the EU is that
standard-setting takes place at the national
level and enforce-
ment at the sub-national level.

points out that the innovation of cleaner production
30.
occurs
in local communities. The development of cleaner
production takes place between several parties, such as NGOs,
companies and competent authorities. At present local authori-
ties often only monitor. The Directive should also offer possibi-
lities for the cooperation between the different parties (local
administrations and companies) which would enable them to
stimulate innovation. Good examples of this can be found both
in the Netherlands and Denmark, as well as in East European
countries like Romania.

emphasises the need for some flexibility. Local circum-
31.
stances vary and installations, even when producing similar
products, operate differently throughout the EU due to differ-
ences in local conditions. Local and regional authorities create
tailor made solutions for
their geographical area. On the
regional and local level there is always a concern for a balance
between the adequate protection of
the environment and
economic motivations. Even if the improvement of the environ-
ment is the general policy objective, in every day life regional
and local authorities decide between different environment para-
meters and often make trade-offs between the environmental
impacts of different measures. When issuing permits
the
granting of derogations from emission values associated with
best available technologies (BAT-AEL) is especially important for
regions in those Member States where there has been a tradition
of voluntary agreements with the industry and where the
administrative discretion has not been drastically circumscribed
by legislation.

that

strongly believes, however,

32.
flexibility should be
limited; there should be a balance between maintaining a fair
level playing field and local decision-making. Therefore it is
pleased with the incorporation of emission limit values in the
Directive itself, which will
lead to a general environmental
protection throughout the EU. Flexibility might lead to misuse,
and therefore it is very pleased that the local consideration
procedure comprises sufficient guarantees to prevents this, as
permit issuers can only derogate on the basis of an impact
assessment (Article 16(3)) and are obliged to make the justifica-
tion available to the public (Article 26(3f)).

33.
strongly disagrees with the Commission's proposal to
establish criteria for the granting of derogation based on local
conditions
comitology procedure
in accordance with the
(Article 16(3)) for the following reasons:

— Criteria for granting derogations should have been defined
in the Directive itself (and thus decided by a co-decision
procedure) and should not be defined in the future at the
EU level via the comitology procedure in which Committee
of
local and
regional authorities are not consulted.

the Regions and other

representatives of

— Due to the wide variety of local and regional conditions it is
very difficult if not impossible to establish uniform criteria
on the EU level.

— It

strongly believes

the derogation procedure, as
mentioned in paragraph 29 comprises sufficient guarantees
to prevent misuse.

that

— With reference to the subsidiarity principle, the weighing of
local environmental conditions against environmental costs
and benefits as well as technical feasibility should be defined
by local and regional authorities via local and regional
democratic processes.

Innovation and cleaner technologies

34.
supports the idea of stimulating innovation, but ques-
tions whether the new Directive lays down solid foundations for
such a development.

35.
welcomes the fact that permits will have to be reviewed
often. A rolling adaptation of permit requirements will contri-
bute to the uptake of cleaner technologies and thus reduce the
environmental impacts of industrial emissions. To ensure that
innovation really takes place, two conditions will have to be
met. The first condition is legal certainty to ensure that invest-
ment capital
is available. Business cycles will have to be
respected and common practice in Member States is to maintain
permit conditions for an eight-year period. The provisions
regarding the adaptation of permit conditions
to new or
updated BREF documents (Article 22(3)) will have to reflect this.
The second condition will be to ensure derogation opportunities
that allow for adequate testing of emerging or new technologies.
It is its view that the time constraint imposed in Article 16(5)
may be too rigid in some cases, at least within four years after a
new BREF document has been made available.

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36.
is concerned that the new status of the BREF documents
might hamper industrial innovation, due to the limited rewards
for sustainability. European industries will not be encouraged to
become or remain the world's forerunners in new, clean tech-
nologies and it will be harder to address the still existing
environmental problems within the EU.

37.
prefers that the Directive be implemented in a way which
would not indirectly motivate significant relocations of existing
industry towards ‘pollution havens’ abroad.

of

large

lower

category

would like to point out that although the inclusion of
38.
a
from
20 to 50 megawatts (MW) is an important aspect of the new
Directive, with respect
is questionable
whether the inclusion of more small livestock farms will lead to
sufficient environmental benefits in order to justify the adminis-
trative burden.

to farms however it

combustion

plants,

Administrative costs

39.
holds the opinion that Better Regulation, in addition to
streamlining legislation, also requires cost efficiency and a reduc-
tion of administrative burden. It questions whether the present
proposal meets these latter requirements.

40.
is concerned with the numerous requirements applying
to inspections, monitoring, review of permit conditions and
reporting of compliance.

It welcomes

the Directive.

sees inspections as an important part of proper imple-
41.
mentation of
is
acknowledged in this Directive. It is however questionable to
what extent this should be elaborated within the Directive itself,
instead of in the Recommendation for Minimum Criteria for
Environmental Inspections, the RMCEI. This would also limit
possible deviations between the Directive and the (presently
under revision) RMCEI.

that

this

that

believes

the proposal

the yearly
42.
reporting on compliance with best
techniques
(Article 8) should include a comparison with the best available
techniques (Article 24). This seems to be an unnecessary admin-

that
available

indicates

istrative burden. Since all permit requirements must be based on
best available techniques, reporting on compliance with the
permit requirements would be sufficient. Most monitoring data
are filed up with uncertainties, reporting on these data will this
not lead to constructive improvements in the used techniques.
Therefore it is questionable whether this would contribute to
Better Regulation.

notes that Member States report every three years on
43.
compliance with the Directive. Even though this is done only
every three years, this is a significant administrative burden on
local and regional authorities. We therefore strongly suggest that
Member States keep an internal data file with all relevant data
which the Commission consult at all times. This should replace
a reporting system and will be in line with Better Regulation.

44.
notes that upon definitive cessation of the activities, the
operator shall return the site to its initial state as described in
the baseline report (Article 23). It interprets this as a cleaner
state of the soil in comparison to before the start of the activity.
It also considers that soil contaminations should be remediated
in accordance with the next level of the future functional use of
the site. This would be more in line with the ‘polluter pays
principle’.

believes that

45.
the proposal demands regular soil and
ground water monitoring before and during the time the instal-
lation is operating. However, a permit will already be based on a
sufficient soil and groundwater protection. In particular cases
there can and should be reasoning for additional monitoring,
but this should not be obligatory for all cases.

46.
agrees that the public should be given sufficient informa-
tion about IPPC installations. It stresses that the information
should always be accessible, but only upon request.

cannot endorse the proposed use of comitology to estab-
47.
lish several criteria, such as soil and ground monitoring and
criteria for risk-based analyses. It holds the views that these
criteria should be established in the Directive itself and debated
now in relation with the on-going legislative procedure.

II. RECOMMENDATIONS FOR AMENDMENTS

Amendment 1

Article 6

Granting of a permit

Text proposed by the Commission

Amendment

The competent authority shall grant a permit if the installa-
tion complies with the requirements of this directive.

The competent authority shall grant a permit if
lation complies with the requirements of this Directive

the instal-

Regardless of other requirements flowing from national or
Community regulations,
the competent authorities shall
grant a permit with conditions stipulating that the installa-
tion should comply with the requirements of this Directive.

Reason

The approach adopted in the proposal for amending the IPPC Directive runs counter to the objectives of the
Water Framework Directive and is therefore inconsistent with existing Community legislation. The rules and
regulations set out in Article 11(3) of the WFD for achieving the management goals are based on a compre-
hensive national management requirement.

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Amendment 2

Article 16(3)

Emission limit values, equivalent parameters and technical measures

Text proposed by the Commission

CoR amendment

By derogation from the second subparagraph of para-
graph 2, 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 tech-
nical characteristics of
its
geographical location and the local environmental condi-
tions, set emission limit values that exceed the emission
levels associated with the best available techniques as
described in the BAT reference documents.

the installation concerned,

By derogation from the second subparagraph of para-
graph 2, 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 tech-
nical characteristics of
its
geographical
location and the local environmental condi-
tions, set emission limit values that exceed the emission
levels associated with the best available techniques as
described in the BAT reference documents.

installation concerned,

the

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

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

The Commission may establish criteria for the granting of
the derogation referred to in this paragraph.

The Commission may establish criteria for the granting of
the derogation referred to in this paragraph.

Those measures, designed to amend non-essential elements
of this Directive, by supplementing it, shall be adopted in
accordance with the regulatory procedure with scrutiny
referred to in Article 69(2).

Those measures, designed to amend non-essential elements
of this Directive, by supplementing it, shall be adopted in
accordance with the regulatory procedure with scrutiny
referred to in Article 69(2).

Reason

The Committee of the Regions strongly disagrees with the Commission's proposal to establish criteria for
the granting of derogation based on local conditions in accordance with the comitology procedure
(Article 16(3)). Criteria for granting derogations should have been defined in the Directive itself (and thus
decided by a co-decision procedure) and should not be defined in the future at the EU level via the comi-
tology procedure in which the CoR and other representatives of local and regional authorities are not
consulted. Due to a large variety in local and regional conditions it is very difficult if not impossible to
establish uniform criteria on the EU level. The derogation procedure comprises sufficient guarantees to
prevent misuse, as permit issuing authorities can only derogate on the basis of an impact assessment
(Article 16(3)) and are obliged to make the justification available to the public (Article 26(3f)). With refer-
ence to the subsidiarity principle, the weighing of local environmental conditions against environmental
costs and benefits as well as technical feasibility should be defined by local and regional authorities via local
and regional democratic processes.

Brussels, 9 October 2008

The President

of the Committee of the Regions

Luc VAN DEN BRANDE