Talking about the environmental effects of industrial installations: the European Directive on Industrial Emissions – i.s.m. VMR, de Nederlandse Vereniging voor Milieurecht en ELNI, Environmental Law Network International
vrijdag, 17. september 2010
Het vierde gezamenlijke VVOR-VMR-congres werd samen met ELNI georganiseerd, om op die manier hulde te brengen aan ELNI, dat in 2010 zijn 20-jarig bestaan vierde. Voor een uitgebreid verslag van het congres kan worden verwezen naar de bijdrage van Nicola Below in de ELNI-review 2/2010, die hierna integraal wordt overgenomen. De schriftelijke neerslag van de uitvoerige congresdebatten wordt opgenomen in het volgend nummer van het VVOR-tijdschrift ‘Onze Omgeving’, 2011/1.
Verslag
1 Introduction
The elni-VMR-VVOR-congress “Talking about the environmental effects of industrial installations: the European Directive on Industrial Emissions” took place in Ghent University on the 17th of September 2010. It was jointly organised by the Environmental Law Network International (elni), the Vlaamse Vereniging voor Omgevingsrecht (VVOR) and Vereniging voor Milieurecht (VMR). At the congress the new Industrial Emissions Directive (IED) was discussed by practitioners, researchers and lawyers. In December 2007, the Commission adopted a proposal for an IED. The proposal recasts seven existing Directives related to industrial emissions into a single legislative instrument. This recast includes in particular the Integrated Pollution Prevention and Control (IPPC) Directive, which has been in place for over 10 years. One of the keys of the proposal is to strengthen the dynamic Best Available Techniques(BAT) standards. A lot of questions were addressed at the congress, including: What lessons can be learned from IPPC? Will the IED offer the highest level of protection for the environment and human health? Will the existing legislation be simplified? Will unnecessary administrative costs be cut? After the morning coffee the audience assembled in the congress hall to hear the opening speech of Gerhard Roller. He welcomed everyone, gave an introduction and spoke of the further proceedings which were planned to celebrate the anniversary of elni after the congress.
The congress was divided into three parts. The first part “Reading” addressed the actual status of the regulation. The second part “Doing” was focused on practical problems relating to the current IPPCsituation. The third part “Dreaming” brought together possible improvements in future developments of the directive.
2 First session “Reading”
Filip François from the European Commission (Belgium) delivered the first presentation, focusing on the current status of IPPC and of the IED from the perspective of the European Commission. First he gave an overview of the core elements of the IPPC Directive and went on to present the results of the Commission’s IPPC review which took place in 2006 - 2007. The Commission then proposed recasting the IPPC and the other six ‘sectoral’ directives1 into one single act - the IED - to, on the one hand, simplify the legal text and reduce administrative burdens. On the other hand, the purpose was to strenghten BAT and the role of BAT Reference Documents (BREFS), set new minimum emission limit values (ELV) for LCP, strengthen compliance enforcement and extend the scope and provisions to soil and groundwater protection. Filip Francois then summarised the key elements of the political decision-making process and set out some key issues.
Michel Amand, of the Belgian Presidency of the Council of the EU (Belgium), delivered a presentation on other new developments and the next steps. Key topics covered in the first part were: the permit conditions, their reconsideration and updating, and the inclusion of periodic monitoring and reporting requirements.
The second part covered the environmental inspections, the access to information and public participation in the permit procedure. According to the speaker a type of “safety net” is also included via implementation reports and the assessment by the Commission. Amand then spoke about the next steps in the legislative process and the future tasks of the Commission. Christian Schaible of the European Environment Bureau(Belgium) addressed new aspects arising from the IED with a focus on their relevance for NGOs. The two core elements of his speech were the strength of the BREFs and BAT-based permitting as well as public participation and transparency. According to Schaible, there is no generation or active dissemination of valuable information on BAT-based permitting when there is no comitology decision, with the exception of remediation measures on site closures. 1 IPPC Directive 2008/1/EC, Large Combustion Plants (LCP) Directive 2001/80/EC, Waste Incineration Directive 2000/76/EC, Directive on the limitation of emissions of volatile organic compounds (VOC) from solvents 1999/13/EC, Directives related to the titanium dioxide industry 78/176, 82/883 and 92/112. 2/10 Environmental Law Network International 92 Marga Robesin of The Netherlands Society for Nature and Environment (Stichting Natuur en Milieu) concentrated her presentation on the relation between IED and the National Emission Ceilings Directive2 (NEC). She compared the instruments of the IPPC and NEC and gave two practical examples in which installations were in line with the IPPC Directive, but would influence national emission.ceilings. Robesin argued that the IED needs to be much clearer with regard to the relation to other European Directives, e.g. the NEC. The subsequent discussion was hosted by Martin Führ of the University of Applied Sciences Darmstadt (Germany).
3 Second session “Doing”
The second session of the congress was opened by Willem Henk Streekstra, who discussed fair implementation of the IED from the viewpoint of the Confederation of the Netherlands Industry and Employers (VNO-NCW). He addressed the requirements of enhancing the level playing field via fair implementation, the role of Competent Authorities (CA) and the need for discussion about the link to other European policies. He went on to discuss the comparability of the quality of BREFs and alternatives for BAT, for example, the NOx emission trading system in the Netherlands. Yolanda Waas from the DCMR Environmental Protection Agency in Rijnmond (The Netherlands) discussed interpretation, application and review issues of IPPC from the perspective of a CA in the Netherlands. She set out the background of the permit tradition in her department and the simplification of BREFs. She also raised concerns about derogation possibilities and expressed the need for proper criteria for transparency to promote innovation. Ari Ekroos from the University of Helsinki gave a presentation on IED implementation in Finland. He summarised the foreseeable IED implementation measures in Finland and discussed BAT conclusions and emission limit values against the background of different industrial sectors and different stages of BREF developments, as well as derogation possibilities. All in all, he concluded that the IED provides a reliable system of inspections, but that CAs might need more resources. The definition of the term “Best Available Techniques” was scrutinised by Lesley James, an expert from Friends of the Earth in Derbyshire, Great Britain. Firstly, she defined the term theoretically and showed the relation between BREFs and BAT. She went on to point out practical problems relating to the methodology of practically defining BATs. With reference to the Aberthaw Power Station case3 in Wales she illus- 2 NEC Directive 2001/18/EC. 3 Elni Review 2/2009 p. 86 et seq. trated interpretation issues, going on to question the cost-benefit analysis which cannot currently assess the environmental benefits in a suitable manner. She also queried the derogation process and requirements. Delphine Misonne from the CEDRE of the Facultés Universitaires Saint-Louis in Brussels, Belgium, spoke about whether IPPC/IED provides for a European safety net in terms of location-based emission limit values (ELV). She reasoned that there will be tensions between flexibility through, for example, derogation and a true level playing field with equal conditions for every installation in Europe. She reasoned that derogation possibilities must be kept tight to establish a safety net. Chris Backes from the University of Maastricht (The Netherlands) compared ELV with environmental quality standards (EQS) and began by elucidating their relation with and within the IPPC Directive. He went on to argue for a strengthening of the EQS. Jerzy Jendroska from the Opole University and the Centrum Prawa Ekologicznego (Poland) showed first impressions of the links to the Aarhus Convention4 and raised questions about potential compatibility problems. He questioned diverse provisions and their wordings in the light of the three pillars of the Aarhus Convention and recommended that the IED should be interpreted in the light of the Convention when transposed by Member States. Volker Mauerhofer from the University of Vienna (Austria) presented an analysis of the past and ongoing procedures at the European courts. Most of the cases related to the IPPC Directive itself were based on non-transposition claims, preliminary rulings or on reporting issues. The following discussion was hosted by Luc Lavrysen.
4 Third session “Dreaming”
Liesbet van den Abeele from VITO in Mol, Belgium, began the third session by addressing the new status for BREFs and BAT-associated emission levels (BAT AEL). She showed the importance of BREFs from a technical point of view and presented a new methodology for determining BAT-AELs. The methodology presented could increase objectivity and transparency and provide a level of consensus on BAT-AELs, and thereby ELVs. Marian Peeters from the University of Maastricht in the Netherlands showed alternatives to the environmental permits and their impacts. She focused in particular on the pros and cons of integrated permitting versus market-based approaches from a theoretical and a practical point of view. In every case enforce- 4 Convention on Access to Information, Public Participation in Decision- Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, on 25 June 2008. Environmental Law Network International 2/10 93 ment monitoring is crucial to allow for a proper working instrument. Isabelle Larmuseau from Ghent University (Belgium) gave a presentation on the introduction of the sustainability criterion as a permit condition or criterion in IED. With reference to the example of palm oil-fired power plants in the Netherlands and Belgium/Flanders she showed different interpretation possibilities. She concluded that Sustainability Impact Assessment now tends to be just a policy tool for ‘better regulation’ and ‘good governance’. In the future, this impact assessment could be included as an annex to environmental permit demands. Martin Führ of the Society for Institutional Analysis (sofia) at the University of Applied Sciences Darmstadt in Germany showed potential synergy effects between the IED and REACh. His presentation focused on substances under the registration regime and their relation to sector-specific environmental legislation. He showed regulatory options as well as specific links and interfaces between REACh and sectoral laws such as IED and the Water Framework Directive. He concluded that it would be necessary to close the gaps between IED and REACh experts, ensure appropriate implementation, establish linking clauses between the laws, and provide guidance to achieve the aims set out by the laws. Filip François of the European Commission then gave general reflections on the issues discussed at the conference. All in all, he appreciated the points addressed on this day. Moreover, the Commission will take care of appropriate implementation of the Directive and develop it further. The last discussion was chaired by Eckard Rehbinder from the University of Frankfurt am Main in Germany. Gerhard Roller gave some closing remarks and invited the audience to the elni anniversary party which took place in the evening.