INTERNATIONAL ENVIRONMENTAL LAW INTEGRATED POLLUTION PREVENTION AND CONTROL (IPPC) B&P Avvocati

1. UNIVERSITY OF PADUAFACULTY OF ENGINEERING Second Cycle Degree in Environmental Engineering 2011-2012 INTERNATIONAL ENVIRONMENTAL LAW INTEGRATED POLLUTION PREVENTION AND CONTROL (IPPC) B&P Avvocati Luciano.butti@buttiandpartners.com www.buttiandpartners.com

2. Index • General principles 1.1. From a sector based approach to an integrated approach 1.2. BAT (Best available Techniques) • The European legal framework: the IPPC directive • The implementation of the IPPC directive in Italy 3.1. Introduction 3.2. Legislative Decree n. 59/2005 3.3. Procedure, conditions and duration 3.4 Recent Updates, Decree n. 157/2011

3. 1. General principles 1.1. From a sector based approach to an integrated approach

4. 1. General principles 1.1. From a sector based approach to an integrated approach • The system of IPPC applies an integrated environmental approach to the regulation of certain industrial activities: emissions to air, water (including discharges to sewer) and land, plus a range of other environmental effects, must be considered together; • Regulators must set permit conditions so as to achieve a high level of protection for the environment as a whole; • A key objective of the integrated approach is to ensure that any environmental impact is no longer dealt with individually, focused on a particular emission-path (air, water, soil), but instead to reduce the impact to the environmental as a whole.

5. 1. General principles 1.1. From a sector based approach to an integrated approach • The integrated approach provides for a permitting system for certain categories of industrial installations: both operators and regulators have to take an integrated look at the polluting and consuming potential of the installation; • As will be better described hereinafter, the IPPC European Directive requires Members States to establish an integrated system of permits that contain specific conditions, including emission limit values and the application of Best Available Techniques (BAT); • Best Available Techniques (BAT) balance the costs to the operator against the benefits to the environment;

6. 1. General principles 1.1. From a sector based approach to an integrated approach • IPPC aims to prevent emissions and waste production, but where that is not practicable, emissions have to bereduced to acceptable levels; • The integrated system also takes the integrated approach beyond the initial task of permitting, through the restoration of sites when industrial activities ceases.

7. 1. General principles 1.2. BAT (Best available Techniques) • BAT can be defined as technologies and organizational measures that minimize the overall environmental impact, and that are available at an acceptable cost; • Similar terms are “best available techniques”, “best practicable means” or “best practicable environmental option” ; • The term constitutes a moving targets on practices: the process of advancing techniques may change what is currently regarded as “reasonably achievable”, “best practicable” and “best available”.

8. 1. General principles 1.2. BAT (Best available Techniques) Directive 1996/61/EC (now substituted by Directive 2008/1/EC) BAT are defined in art. 2.12 as follows: ‘Best available techniques’ means the most effective and advanced stage in the development of activities and their methods of operation, which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole.

9. 1. General principles 1.2. BAT (Best available Techniques) More specifically: (a) ‘techniques’ shall include both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned; (b) ‘available techniques’ means those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator; (c) ‘best’ means most effective in achieving a high general level of protection of the environment as a whole.

10. 2. The European legal framework: the IPPC directive • Directive 1996/61/EC, now substituted by Directive 2008/1/EC (IPPC) - the negative effects of sector-based Environmental Law: shifting of pollution from an environmental media to the other and authorization “shopping”; - the new (?) “integrated” approach of EU in 1996 (the only previous case: Directive 85/337/EEC on Environmental Impact Assessment). • Sector based statutes are still in force: IPPC permits regard only activities listed in Annex I of the Directive; • The listed activities have a significant potential for pollution, and therefore transfrontier pollution (considerandum n. 27).

11. 2. The European legal framework: the IPPC directive SPECIFIC PURPOSES: • to overcome the sector-based approach for “different approaches to controlling emissions into the air, water or soil separately may encourage the shifting of pollution between the various environmental media rather than protecting the environment as a whole” (considerandum n. 7) • to lay down “measures designed to prevent or, where that is not practicable, to reduce emissions in the air, water and land from the abovementioned activities, including measures concerning waste, in order to achieve a high level of protection of the environment taken as a whole” (art. 1).

12. 2. The European legal framework: the IPPC directive Legal opinion (Fonderico): Directive 96/61/CE contains general principles concerning procedures for environmental authorizations. Examples of general principles: • simplification of the procedures (art. 6. 2); • coordination of the procedures for environmental authorizations (art. 7); • public participation to the procedure (art. 15).

13. 2. The European legal framework: the IPPC directive Features of IPPC permit that can be withdrawn from the Directive: • written permit; • limited duration; • measures to be respected; • referring to the Best Available Techniques. (artt. 2, 3, 8, 9, 11, 13)

14. 2. The European legal framework: the IPPC directive TARGETS: • simplifying the procedures; • avoiding the shifting of pollution between the various environmental media; • promoting the adoption of the BAT (best available techniques).

15. 2. The European legal framework: the IPPC directive European Directive 2008/1/CE (the European IPPC “codex”) • The “new” European directive 2008/1/EC contains all the dispositions of previous Directive 1996/61/EC and sequent integrations and modifications (Directive 1996/61/EC is expressly abrogated); • The new Directive entered into force on February18, 2008; • European Directive 2008/1/CE did not bring innovations, but rationalized and clarified the relevant legal framework.

16. 3. The implementation of the IPPC directive in Italy 3.1. Introduction The first implementation of the Directive: Legislative Decree n. 372/99 New aspects ofLegislative Decree 372: the IPPC permit (AIA – “autorizzazione integrata ambientale”); Theflaws which caused the failure of Legislative Decree 372: • doubts about the competent authority; • non applicability to new installations; • doubts about which sector-based environmental authorizations were substituted by IPPC permit; • failure to identify the “Best Available Techniques” and a plan for the compliance of existing installations;

17. 3. The implementation of the IPPC directive in Italy 3.1. Introduction • Delegating Law n. 306/2003, article 22: the Government is delegated to reform the matter of IPPC; • Principles stated by delegating law: • dispositions must be applied also to new installations and to substantially changed installations; • the most relevant sector-based permits substituted by IPPC permit must be listed.

18. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 • The Government approved Legislative Decree n. 59/2005, which completely repealed Legislative Decree n. 372/99; • Features of Legislative Decree n. 59/2005 : • applications of the new rules also to new installations and to substantially modified installations; • clearer identification of the competent Authority (distinguishing among the installations of national relevance and those of local relevance); • explicit list of sector-based permits substituted by IPPC permit (however, the list of sector-based permits substituted includes, but it’s not limited to, those listed).

19. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 New aspects: • strengthening of public participation in decision-making (according to directive n. 2003/35/EC, implementing the 1998 Aarhus Convention); • possibility to integrate or replace the limit values with “parameters or equivalent technical measures” – referred to the application of best available techniques (without prescribing the use of one specific technique or technology); • more coordination between IPPC permit and environmental certification systems; • explicit regulation of the cases in which the permit holder changes.

20. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 IPPC installations: stationary technical unit where one or more activities listed in Annex I are carried out, and any other directly associated activities which have a technical connection with the activities carried out on that site and which could have an effect on emissions and pollution (as defined by “circolare” - administrative act - 13/7/04). Energy industries, Production and processing of metals, Mineral industry, Chemical industry, Waste management, Other activities. Installations expressly subjected to IPPC regulation: not only existing installations (as provided by Legislative Decree n. 372/99), but also new installations or substantially modified installations.

21. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 Substantial change • Definition: “substantial change” shall mean a change in operation which, in the justified opinion of the competent authority, may have significant negative effects on human beings or the environment (article 2.1, n); • In particular, with regard to each of the activities listed in Annex I for whom specific limit values are provided, a substantial change is a change that causes an increase of the emissions equal or superior to the size of the limit value (i.e., an increase ≥ 100%).

22. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 Administrative simplification • IPPC regulation carries out a significant administrative simplification, because replaces any other environmental permit provided by law (relation with the environmental impact assessment regulation - «VIA») (art. 5.14, Legislative Decree 59/05)

23. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 • IPPC permit replaces, in any case, sector-based permits listed in Annex II: • Air emissions (DPR 203/88); • Discharge of waste water (Legislative Decree n. 152/99); • Realization or change of waste recovery and disposal plants (Art. 27 of Legislative Decree n. 22/97, now substituted by art. 208 of Legislative Decree n. 152/2006); • Waste recovery and disposal plants (Art. 28 of Legislative Decree n. 22/97, now substituted by art. 208 of Legislative Decree n. 152/2006); • Disposal of devices containing PCB-PCT (Legislative Decree n. 209/99); …

24. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 ... • Collecting and disposal of waste oils (Legislative Decree n. 95/92); • Use of depuration mud in agriculture (Legislative Decree n. 99/92), where this activity is connected with an IPPC activity; • Communication to the competent authority for some waste recovery plants, provided by art. 33 of Legislative Decree n. 22/97 (now substituted by articles 214-216 of Legislative Decree n. 152/2006); Permits listed in Annex II are only examples of those replaced by the IPPC permit.

25. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 The IPPC permit replaces also environmental authorization provided by: • dispositions concerning plants for the production of electricity with a power superior to 300 MW (Legislative Decrees 7/2002 and 239/2003, converted by Laws 55/2002 and 290/2003); • dispositions concerning production of renewable energy (Legislative Decree 387/2003) (art. 1.3 and 1.5, Legislative Decree 59/2005).

26. 3. The implementation of the IPPC directive in Italy 3.2. Legislative Decree n. 59/2005 Exemptions: the IPPC permit does not replace • dispositions of Legislative Decree 334/99 (replaced by the following Legislative Decree n. 238/2005 implementing “Seveso III” Directive) with regard to plants subjected to risk of relevant accidents; • authorization for carbon dioxide emissions provided in European Directive 2003/87/EC (named Emission Trading).

27. 3. The implementation of the IPPC directive in Italy 3.3. Procedure, conditions and duration Competent Authority IPPC permit is released: • by the Ministry of Environment for plants of national relevance; • by Regional Authority selected in each Region for other plants.

28. Administrative procedure Within 30 days Application Competent authority communicates the starting of the procedure Publication on a newspaper of national/local relevance and on the Authority’s website Observations may be presented to the Authority by any stakeholder Other administrative Authorities can be consulted (only if necessary) Presentation of further documentation (only if necessary) The competent Authority shall grant the IPPC permit within 150 days from the application Within 15 days Within 30 days Within 30 days

29. 3. The implementation of the IPPC directive in Italy 3.3. Procedure, conditions and duration Content of the application (art. 5. 1 of Legislative Decree) (a) the installation and its activities; (b) the raw and auxiliary materials, other substances and the energy used in or generated by the installation; (c) the sources of emissions from the installation; (d) the conditions of the site of the installation; (e) the nature and quantities of foreseeable emissions from the installation into each medium as well as identification of significant effects of the emissions on the environment;

30. 3. The implementation of the IPPC directive in Italy 3.3. Procedure, conditions and duration Content of the application (art. 5. 1 of Legislative Decree) (f) the proposed technology and other techniques for preventing or, where this not possible, reducing emissions from the installation; (g) where necessary, measures for the prevention and recovery of waste generated by the installation; (h) further measures planned to comply with the general principles of the basic obligations of the operator as provided for in Article 3; (i) measures planned to monitor emissions into the environment; (j) the main alternatives, if any, studied by the applicant in outline.

31. 3. The implementation of the IPPC directive in Italy 3.3. Procedure, conditions and duration Public participation • Legislative Decree 59/2005 implemented public participation in decision-making concerning the IPPC permits; • With regard to the operator’s position, some dispositions aim to protect trade secrets.

32. 3. The implementation of the IPPC directive in Italy 3.3. Procedure, conditions and duration Conditions • The permit shall include emission limit values for polluting substances likely to be emitted from the installation concerned in significant quantities, having regard to their nature and their potential to transfer pollution from one medium to another (water, air and land); • If necessary, the permit shall include appropriate requirements ensuring protection of the soil and ground water and measures concerning the management of waste generated by the installation; • Where appropriate, limit values may be supplemented or replaced by equivalent parameters or technical measures.

33. 3. The implementation of the IPPC directive in Italy 3.3. Procedure, conditions and duration The permit shall establish: • the methods and the frequency of the emissions control (art. 7.3 and 7.6, Legislative Decree 59/2005); • the duty for the operator to communicate the emissions data to the competent authority (art. 11.10, Legislative Decree 59/2005); • measures relating to conditions other than normal operating conditions. Thus, where there is a risk that the environment may be affected, appropriate provision shall be made for start-up, leaks, malfunctions, momentary stoppages and definitive cessation of operations (art. 7.7, Legislative Decree 59/2005).

34. 3. The implementation of the IPPC directive in Italy 3.3. Procedure, conditions and duration Duration: • The IPPC permit has a duration of 5 years. • Where the authorized plant has got an EMAS certificate, the IPPC has a duration of 8 years; • Where the authorized plant has got an ISO 14001 certificate, the IPPC has a duration of 6 years; • Six months before the permit expiration the operator shall apply for a new permit; • The new permit shall be granted within 150 days.

35. 3. The implementation of the IPPC directive in Italy: recent updates • 3.4. Decree no. 128/2010 • This recent Decree integrated the previous Decree no. 152/2006 (named “Italian Environmental Code”). The Code re-organized the whole legislation concerning the environment, included the IPPC (our “AIA”) procedure.

36. 4. Further recent updates 3.4. Decree n. 157/2011, implementingEuropeanRegulation 166/2006/CE The Decreeestablished the EuropeanPollutantRelease and Transfer Register (E-PRTR), the newEurope-wideregisterthatprovideseasilyaccessible key environmental data from industrial facilities in EuropeanUnionMemberStates and in Iceland, Liechtenstein, Norway, Serbia and Switzerland. Itcontains data reportedannuallyby ~ 28.000 industrial facilitiescovering 65 activitiesacrossEurope. For each facility, provided information concerns: - the amounts of pollutant released to air, water and land; - off-site transfers of waste and of pollutants in waste water. (A list of 91 key pollutants includes heavy metals, pesticides, greenhouse gases and dioxins). The register will increase transparency and public participation in environmental decision-making.

37. Thank you for your attention