EC proposal on integrated pollution control comes closer

A third draft of a forthcoming EC proposal on integrated permitting, now retitled a Directive on integrated pollution prevention and control (IPPC), has been prepared by the European Commission. The potential scope of the legislation is now clearer following the drafting of lists of industrial processes and substances which will be subject to IPPC, and the Community debate on the new rules is homing in on the detailed procedures for permitting and the provisions governing the upgrading of existing plants.

Official discussions on the legislation have been under way since last spring (ENDS Reports 196, pp 35-6, and 201, pp 33-5). The latest meeting, which industrial representatives also attended, was held in April, and may be the last before a formal legislative proposal is issued.

The Commission is aiming to do this in the summer, clearing the way for the UK to make the legislation a priority during its Presidency of the EC Council in the second half of 1992. Brussels has proposed tentatively that Member States should bring the Directive into force by 1 July 1995.

Some ideas mooted in the two earlier drafts have been dropped. These include a proposal for national inventories of releases from plants controlled under IPPC, which will probably be the subject of a separate Directive, and a requirement on operators to demonstrate that they have pollution insurance when applying for a permit. The Commission has also deleted plans for a system of incentive charges to encourage the upgrading of existing plants.

On the other hand, the third draft contains the first lists of substances and processes to be subject to IPPC. But the bulk of the changes since the second draft deal with the institutional framework and detailed procedures for the new regime, and its relationship with existing EC legislation on industrial pollution.

  • Scope and timing: The installations subject to IPPC would be any "establishment where activities and processes listed in Annex I are carried out, and any other activity or process associated with that establishment which is carried out on the same site and may cause pollution."

    This definition is some way from the UK's approach, where a plant comes within the scope of integrated pollution control (IPC) if it is a particular kind of prescribed process and releases one or more prescribed substances. The EC proposal appears to have the potential to bring many more activities on a site within IPPC.

    The Commission's approach may owe something to the fact that some Member States have authorisation systems in which permits are given on a site, rather than a process, basis. Throughout the expert discussions it has sought to make the permitting provisions of the draft text as flexible as possible to ensure that negotiations on the Directive do not get bogged down because they are fundamentally at odds with one or another Member States' existing permitting systems. However, at the consultative meeting in April, industry representatives are understood to have urged it to switch to a process-based approach. The UK is believed to have suggested a compromise formula allowing either option.

    The new Annex I comes in two parts. The second lists industrial operations for which detailed rules have already been set at Community level. These are large combustion plants - for which air emission rules were set in 1988 - some asbestos plants which are regulated under a 1987 Directive, and the sectors for which rules on liquid discharges of "black list" substances have been established by successive Directives issued under the 1976 "framework" Directive on dangerous substances in water.

    With the exception of the asbestos Directive, this old legislation deals only with releases to a single environmental medium, whereas the IPPC Directive will deal with releases to air, water and land. However, it will take the Commission many years to draw up specific rules for all the individual sectors covered by the IPPC Directive.

    What it has therefore proposed is that the existing Directives listed in Annex I should remain in place until sector-specific rules under the IPPC Directive have been prepared. In the meantime, Member States would have the discretion to apply the provisions of the IPPC Directive to those sectors, as long as they respected the requirements of the existing Directives.

    The first part of Annex I lists industrial activities to which the IPPC Directive will apply as soon as it enters into force. The list is almost identical to that in the 1984 framework Directive on industrial air pollution, which is to be repealed. The biggest change is the inclusion of fibre and textile finishing plants with the potential to release substances listed in Annex II.

    How these sectors will be affected in the first instance by the Directive now seems much more likely to be determined by Member States than by the Commission. The Commission's original intention appears to have been that once the IPPC Directive was adopted, it would proceed rapidly to prepare "daughter" Directives on individual sectors. Experience with the 1976 Directive on dangerous substances in water suggests that the process would have taken many years, if not decades, to complete.

    What the third draft now proposes is that Member States should effectively take the lead in applying IPPC after July 1995. Community standards would be based on information to be supplied to Brussels by the Member States by July 1998 and every three years thereafter on the release limits and best available techniques which they have introduced for installations subject to the IPPC Directive. The Commission's task would then be to harmonise these national standards.

  • Permitting systems: The first draft featured a proposal that each plant subject to IPPC should have a single integrated permit. This was dropped from the second draft after several Member States objected that they could not achieve this within their existing permitting systems. The third draft develops further the alternative ideas proposed in the second.

    According to the new text, an installation may have a single permit issued by a single competent authority, a single permit issued on behalf of all competent authorities, or "a" permit issued by an authority covering that aspect of the installation for which it has a statutory remit - meaning in practice that "a" permit could be two or more.

    Having started off as a Directive on integrated permitting, the legislation would have done little for the cause of integration if left like this. The second draft therefore provided that where more than one competent authority was involved in IPPC permits then there should be consultation among them. The third adds that procedures must be put in place to resolve disagreements between them, "including conflicting statutory requirements."

    On the other hand, a proposal made in the second draft that a lead authority must include in a permit conditions on which another authority is insisting on the grounds that they are necessary to meet its own statutory responsibilities has been dropped. The closest the new text comes to retaining this is with a proposed duty on the authorities to ensure that all relevant environmental quality standards are met, which is not necessarily the same thing.

  • Permitting and upgrading of existing plants: The proposals contained in the third draft on the details to be included in IPPC applications and the permitting of new plants include minor amendments since the second text, but need not be dealt with in detail here. The big issues with which the Commission is still wrestling is how existing plants should be dealt with initially, and what rules should subsequently govern the upgrading of existing installations.

    There is general agreement within the Community that the approach taken in the 1984 Directive on industrial air pollution was unsatisfactory. This laid down general criteria which Member States were to follow when upgrading existing plants to modern air pollution control standards, but failed to set a deadline for completion of the job. Industry was unhappy that this did little to promote a level playing-field across the Community.

    The Commission has approached the issue in a two-pronged fashion. First, for installations in existence at the time the Directive comes into force, Member States would have to ensure that they apply for a permit either by July 2000 or, if they are subject to a "substantial change", that they apply for a permit before the change is made. A "substantial change" is one which would, among other things, result in an increase in the amount, rate or concentrations of releases of any of the substances listed in Annex II.

    In these cases, the competent authorities would have the discretion to allow the installations concerned to operate for a further five years before complying with up-to-date release limits based on the "best available techniques" (BAT). For installations which did not undergo "substantial change", this could delay upgrading until mid-2005. The merits of this approach appear not to have been discussed in any detail at the April meeting.

    Secondly, the draft lays down general provisions on the upgrading of existing installations which already possess a permit.

    As a general rule, all existing permits would have to be reviewed at least every five years with a view to upgrading the existing conditions in line with developments in BAT. However, the authorities would be barred from varying permit conditions within five years of a "substantial change" "unless to do so would result in a much higher level of protection for the environment as a whole at an acceptable cost for an average operator in the relevant industrial sector."

    This formula would doubtless be welcome to industry. But it would be much more restrictive on the British authorities than the Environmental Protection Act 1990, which enables them to vary the conditions of an authorisation at any time - although this is unlikely to be done in practice.

    The third draft follows the British legislation in providing that operators of installations subject to IPPC would have to notify the authorities of any proposed "relevant change". This would enable them to decide whether the proposed change constituted a "substantial change" requiring a fresh permit application and revised permit conditions in line with the latest developments in BAT.

    Finally, the Commission has attempted to lay down general criteria defining when a permit would have to be upgraded. This would be where, "under the fiscal laws of the Member State concerned (except for those fiscal incentives allowing for an accelerated depreciation for environmental protection measures), the time allowed for 90% of the depreciation of the type of installation under review has elapsed, or ten years, whichever is the shorter."

    In making this proposal, the Commission appears to have been endeavouring to reconcile its objective of not laying down a fixed upgrading period - which it knows would have been unacceptable - with its desire to ensure that upgrading does in fact take place on some consistent basis. However, it is not clear that it studied the fiscal laws of the Member States to ensure that its formula would deliver anything like consistent results. In any event, the UK is known to be opposed to the proposal on the grounds that it has nothing to do with the needs of pollution control. Where the Commission will go from here remains uncertain.

    The final clause dealing with upgrading provides that, where an operator has been told to upgrade his installation other than in cases involving a "substantial change", he would be able to continue operating his plant for two years beyond the upgrading deadline provided that it was then closed down.

  • Permit conditions: These have been dealt with in earlier reports, and only a few points need to be drawn out.

    First, the draft text would oblige the authorities to ensure that BAT was employed to "prevent, or where that is not practicable, minimise" releases of substances, in particular those identified in an Annex II, and of energy in the form of heat, vibration and noise. BAT would also have to be used to "recover and recycle, where appropriate, materials and substances used by the installation."

    These provisions differ from the British version of IPC in several respects. First, the 1990 Act requires that any residual releases from a plant subject to IPC, both of prescribed substances or any others, must also be "rendered harmless" prior to their release. Second, IPC does not deal directly with heat, vibration and noise. And third, no explicit requirements are laid down in the Act on waste recovery and recycling, although in practice this may be achieved by IPC.

    The draft proposal includes a further requirement absent from the British system. This is that a permit must contain conditions "providing that, when the installation has permanently ceased operation, the site shall be restored so as not to contribute to or cause pollution." However, a consultation paper issued recently by the Department of the Environment has proposed the wider use of restoration conditions in planning permissions (ENDS Report 205, pp 25-6 ), and this could achieve the same objective.

    The draft goes on to provide that permits would have to include limits on the releases of any substances listed in Annex II. These would have to based on BAT, be at least as stringent as any limits set in future at Community level, and take into account any information on BAT published by the Commission.

    The third draft contains the first complete Annex II. As expected, this is based closely on existing EC Directives. The list dealing with releases to air is almost identical to that in the 1984 Directive on industrial air pollution, while that dealing with releases to water includes all the individual substances and generic groups of chemicals on the "black list" and "grey list" of the 1976 Directive on dangerous substances in water. The list dealing with releases to land is identical to annexes in the recent revision of the 1978 Directive on hazardous waste (ENDS Report 205, pp 33-4 ).

    Member States will be looking to make these lists as consistent as possible with their own national lists, but beyond this there is the question whether the Commission should be establishing any priorities for control. The point was also made in April that a wholesale transfer of the lists in the hazardous waste Directive to the IPPC Directive is inappropriate because many wastes listed in the former - such as clinical waste, sewage sludge, and hazardous materials collected from households - are not generated on industrial sites.

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