The proposal has gone through several drafts since early 1991. Its legal basis is Article 130s of the EC Treaty. In the past this would have meant that it could only be adopted by unanimity, but following the entry into force of the Maastricht Treaty on 1 November it will be open to adoption by qualified majority vote.
The Commission wants Member States to bring the Directive into force by 30 June 1995, but this seems an optimistic time-table as serious negotiations are unlikely to begin until next year.
The broad objective of the proposal is to protect water, air and land against potentially more polluting industrial processes by bringing them under an integrated permitting regime and requiring them to employ the "best available techniques" of pollution prevention.
The Directive's evolution through several drafts has been described previously (ENDS Reports 207, pp 29-31 , and 217, pp 36-38 ), and here we focus on the main changes made to the text in recent months and how it differs from Britain's IPC regime.
Britain's IPC regime goes somewhat further than this. Under the Environmental Protection Act 1990, it is a requirement not only to prevent and, where that is not practicable, to minimise releases of prescribed substances, but also to "render harmless" all residual releases of such substances as well as releases of non-prescribed substances.
While the 1990 Act is more specific and extensive in its requirements, UK officials believe that the difference between the two is likely to be of limited significance. However, it should be noted that the EC proposal tacitly accepts at several points that pollution may be caused even if a plant is in compliance with its permit, which is clearly not the same as a requirement to "render harmless" releases from the outset. The practical implications of this difference are only likely to become clear when Member States begin laying down conditions in individual permits.
In the UK, noise emissions from industry have traditionally been regulated via planning conditions, statutory nuisance legislation and noise abatement zone procedures. Bringing them under IPC would clearly be a significant departure, but it is understood that the UK is unlikely to stand in the way of the inclusion of noise in the IPPC Directive because this is apparently desired by most Member States.
A number of exceptions to this rule would apply. First, if a particular type of process - such as municipal waste incineration - is already subject to other EC rules containing permitting provisions then they would continue to apply. Secondly, where an environmental quality standard (EQS) laid down by EC legislation or, if this does not exist for a specific substance, by World Health Organization (WHO) guidelines is being breached, then existing plants would have to be permitted "as soon as possible". And thirdly, it would appear that if a process is subject to "substantial change" then a permit would have to be sought immediately.
These provisions raise a number of important issues. One which may well concern British industry is the long period for permitting of existing plants. Under IPC, all existing processes will have been authorised by around 1997 and required to up-grade to new plant standards by 2000 or soon afterwards, giving businesses in some parts of the EC a theoretical competitive advantage of several years. It remains to be seen whether the UK will press for a permitting deadline earlier than 2005.
Secondly, the notion that WHO guidelines should be used as a trigger for permitting poses some tricky questions. The UK is opposed to the idea on the grounds that they are purely advisory. However, this does not square with its attitude in the context of drinking water quality, where the UK is arguing that since WHO guidelines have a sound scientific basis they should replace some existing EC standards which it regards as arbitrary or unscientific.
The UK's stance may also reflect its perception of the practical implications of using WHO guidelines in this way - notably those dealing with air quality. At EC level, EQSs for air pollutants have been set only for smoke, SO2, lead and nitrogen dioxide, whereas well over a dozen air pollutants are covered by WHO guidelines. The latter are generally quite stringent, and routine compliance with those for SO2 and ozone in particular would be very difficult to achieve at present.
Thirdly, the Commission's attempt to define what constitutes a "substantial change" to a process is at odds with UK practice. Under the draft Directive, a substantial change would be an increase of 5% or more in the mass, concentration or rate of emission of a prescribed substance compared to that allowed by a permit, or a release of a prescribed substance not specifically controlled by a permit.
In contrast, the UK's approach is essentially to leave it to the regulators to decide whether a change is substantial, and the Commission's choice of a 5% change in an emission is regarded as arbitrary. Nevertheless, UK officials accept that it may be necessary to have some quantitative trigger of this kind to ensure that authorities throughout the Community do give formal consideration to significant process changes.
Firstly, the draft Directive would oblige operators to include in applications a description of "the measures proposed to be taken upon the permanent cessation of the operation of the installation, in order to ensure that no harm to the environment may occur." And the authorities would be obliged to set conditions in the permit to achieve the same end.
In contrast, IPC does not cover the post-closure phase, and there is likely to be resistance from the UK to these proposals. The Directive, UK officials argue, is essentially about the operation of plant, and post-closure issues should not be muddled into it. They also cite the practical difficulty of spelling out the details of a safe dismantling regime before a plant has even been built.
Secondly, the draft Directive provides that permits should contain conditions on monitoring of releases, and where this is carried out by the operator or third parties the monitoring methods should be certified by an independent laboratory which is itself "in conformity with" a CEN standard, 45001. Although HM Inspectorate of Pollution (HMIP) is increasingly looking to operators to have formal quality control of their monitoring and analysis methods, in practice this is some way from being the norm in the UK.
Thirdly, the draft provides that release limits laid down in the permit are "not to be exceeded under normal operating conditions". But it then says elsewhere that emission limits should also be set "for other than normal operating conditions." Either the Commission has got itself into a contradiction or the legal drafting will have to be tidied up to make it explicit that permits should provide for abnormal operating conditions - in which case the Directive may come into conflict with the IPC regime, which has very few parallels with this two-stream approach.
Finally, the proposal would impose obligations on the regulatory authorities which would be new to the UK. It says that "any permit granted or amended must describe how the integrated environmental protection considerations of air, water and land have been taken into account." HMIP's current practice does not involve any public justification of its authorisation decisions of this kind.
The problem is unlikely to be the definition of BAT, which takes into account economic considerations. Neither will it be a requirement that measures going further than BAT must be set in circumstances where BAT alone would not secure compliance with an EQS.
Rather, the problem is the Commission's proposal that where EQSs laid down by EC legislation or WHO guidelines "are being met by lower emissions requirements than those achievable by the use of best available techniques, the competent authority may allow more emissions than would have resulted from the application of the best available techniques." An authority may only do this if the result is a "negligible increase in pollution" or if a contribution to transboundary or global pollution is unlikely to occur, and only if an EQS or a WHO guideline exists for the pollutant concerned.
The Commission's choice of wording is not exactly clear, but its intention appears to be that businesses operating in relatively unpolluted areas should be allowed to operate to less demanding standards than those required by BAT.
That proposal has divided not only Member States but also industry. The German authorities have reportedly responded angrily to it, and the UK - and possibly other northern Member States - can be expected to join them in arguing that pollution controls based on BAT are in principle affordable and should therefore be applied regardless of location. But some of the southern Member States may well see opportunities to attract industry to their territories in the proposal.
Industry views are likewise split. The oil industry, for example, favours the Commission's approach, taking the line that the environment's capacity to assimilate pollutants varies in different areas and that industry should be allowed to take advantage of this. The European chemical industry federation, CEFIC, has taken the opposite line in arguing for a level playing-field, but there are known to be many dissentients from this view in the industry's own ranks.
This requirement is qualified, so that permits may in principle be updated more often than every ten years. On the one hand, the proposal contains a general duty on competent authorities to update permit conditions "so that emission limit values achievable through developments in best available techniques are achieved." But on the other, it says that permits "may" be updated at intervals of less than ten years on the grounds of pollution, the availability of new techniques not entailing excessive cost, and one or two other grounds. Although the result may be better than the upgrading rules included in earlier drafts - which were based on a formula relating to the depreciation of industrial plant - it can hardly be said that Member States will be clear about their obligations on upgrading.
Two years ago, the Commission's intention was to come forward rapidly with a series of "daughter" Directives laying down EC-wide standards for specific sectors of industry. It then shifted its ground, so that Member States would first have been required to submit information on their own national IPPC standards before the Commission put forward any daughter Directives.
However, the current proposal would only oblige Member States to participate in an information exchange involving the submission of information to Brussels on national emission limits and the BAT considerations from which they were derived, beginning in 1998 and subsequently at three-year intervals. A separate information exchange between national regulatory authorities on these and related topics such as monitoring and EQSs would be organised by the Commission.
What is no longer present is any explicit provision for the Commission to use this information as a basis for proposing daughter Directives. This, the Commission has pointed out, does not compromise its authority to bring forward such proposals, but it is nevertheless a significant omission. This was made clear by Environment Commissioner Ioannis Paleokrassas, who observed when presenting the proposal to the press that it followed the principle of subsidiarity by leaving Member States freedom to set emission limits at national level.
His interpretation of the subsidiarity doctrine has not gone down well with Germany, which wants the Directive to be used as a means of levelling the playing-field. CEFIC is unhappy with the proposal on the same grounds. And as the Commission itself acknowledges in an "impact assessment" attached to the draft Directive, "many sectors" of industry "would have preferred the immediate agreement of emission limit values at Community level." Subsidiarity, it seems, is not to everyone's taste.
While this argument will doubtless be conducted at the level of principle, history and realism might also be allowed a voice. The Commission has been attempting to harmonise national water pollution control standards for "black list" substances since 1976, and while its endeavours have made a considerable mark on national policies and practices, daughter Directives have been agreed since then for fewer than 20 substances. This experience suggests that aspirations to achieve the detailed harmonisation that would be needed in daughter Directives under IPPC would be thwarted by the lack of resources at the Commission to manage such a demanding programme and the difficulty of getting agreement among the Member States - although qualified majority voting might make the process easier than it was in the past.
The main differences as regards processes are:
Annex III is wider in scope than the British list of prescribed substances. This is particularly the case with water pollutants. Annex III includes the generic classes of compounds on the existing EC "black list", together with nutrients and a score of "grey list" metals. In contrast, the British list contains only 23 specific substances and preparations. The practical implications of this may be substantial because under IPC releases of non-prescribed substances need only be "rendered harmless", and if the list of prescribed substances was to be extended as a result of the IPPC Directive then releases of many more substances would also have to be prevented and minimised.