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From Integrated Pollution Prevention and Control (IPPC) to Industrial Emissions Directive (IED)

UNIVERSITY OF PADUA FACULTY OF ENGINEERING Second Cycle Degree in Environmental Engineering 2013-2014 INTERNATIONAL ENVIRONMENTAL LAW. From Integrated Pollution Prevention and Control (IPPC) to Industrial Emissions Directive (IED). B&P Avvocati caterina.lops@buttiandpartners.com

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From Integrated Pollution Prevention and Control (IPPC) to Industrial Emissions Directive (IED)

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  1. UNIVERSITY OF PADUAFACULTY OF ENGINEERING Second Cycle Degree in Environmental Engineering 2013-2014 INTERNATIONAL ENVIRONMENTAL LAW From Integrated Pollution Prevention and Control (IPPC) to Industrial Emissions Directive (IED) B&P Avvocati caterina.lops@buttiandpartners.com www.buttiandpartners.com

  2. THE INTEGRATED APPROACH THE EUROPEAN LEGAL FRAMEWORK 2.1. IPPC Directives 2.2. IED – Common provisions 2.3. IED – IPPC provisions (activities listed in Annex I) 2.4. IED implementation into Italian national law INDEX

  3. 1. THE INTEGRATED APPROACH

  4. 1. THE INTEGRATED APPROACH

  5. 1. THE 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.

  6. 1. THE 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;

  7. 1. THE 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.

  8. 2. THE EUROPEAN LEGAL FRAMEWORK

  9. 2.1. IPPC Directives 2. THE EUROPEAN LEGAL FRAMEWORK Directive 1996/61/EC, then 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 remain 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 (Recital n. 27).

  10. IPPC Directive (Directive 1996/61/EC, substituted by Directive 2008/1/EC) Directive 78/176/EEC on waste from the titanium dioxide industry 2. THE EUROPEAN LEGAL FRAMEWORK Directive 82/883/EEC on procedures for the surveillance and monitoring of environments concerned by waste from the titanium dioxide industry Directive 92/112/EEC on procedures for harmonising the programmes for the reduction and eventual elimination of pollution caused by waste from the titanium dioxide industry Directive 1999/13/EC on the limitation of emissions of volatile organic compounds due to the use of organic solvents in certain activities and installations Directive 2001/80/EC on the limitation of emissions of certain pollutants into the air from large combustion plants DIRECTIVE 2010/75/CE ON IDUSTRIAL EMISSIONS (INTEGRATED POLLUTION PREVENTION AND CONTROL)

  11. 2.1. IPPC Directives 2. THE EUROPEAN LEGAL FRAMEWORK European Directive 2010/75/EC (the EuropeanIndustrial emissions and IPPC “codex”) contains all the dispositions of previous Directive 2008/61/EC (Directive 2008/01/EC is expressly abrogated) and brings some significant innovations; recasts with substantial changes other six different directives regulating emissions in particular industries The deadline for the transposition of IED into national law expired on January 07, 2013;

  12. 2.2. IED – Common provisions 2. THE EUROPEAN LEGAL FRAMEWORK SPECIFIC PURPOSES to «establish a general framework for the control of the main industrial activities» that, in compliance with the “polluter pays” and the prevention principles, could prevent, reduce and as far as possible eliminate pollution arising from industrial activities (Recital 2). 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” (Recital 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).

  13. 2.2. IED – Common provisions 2. THE EUROPEAN LEGAL FRAMEWORK SCOPE (Article 2) The Directive applies to the industrial activities giving rise to pollution referred to in Chapters II to VI II – Activities listed in Annex I (innovations) III – Combustion plants IV – Waste incineration plants and waste co-incineration plants V – Installations and activities using organic solvents VI – Installations producing titanium dioxide (research activities, development activities or the testing of new products and processes are anyway excluded from the scope of the directive)

  14. 2.2. IED – Common provisions 2. THE EUROPEAN LEGAL FRAMEWORK OBLIGATION TO HOLD A PERMIT (Articles 4-5) No installation shall be operated without a permit. As an exception, Member States may set a special procedure of registration just for installations using organic solvents, but this procedure shall be specified in a binding act and shall include at least a notification to the competent authority by the operator of the intention to operate the installation.

  15. 2.2. IED – Common provisions 2. THE EUROPEAN LEGAL FRAMEWORK OBLIGATION TO HOLD A PERMIT (Articles 4-5) The permit may cover: two or more parts of installations operated by the same operator; several parts of an installation operated by different operators; the permit shall specify the responsibilities of each operator two or more installations operated by the same operator; the permit shall contain conditions to ensure that each installation complies with the requirements of the Directive; Member States shall take the measures necessary to ensure that the conditions of the permit and the procedures for its granting are fully coordinated where there are more than one competent authority, operator or permit involved.

  16. 2.2. IED – Common provisions 2. THE EUROPEAN LEGAL FRAMEWORK GENERAL BINDING RULES (Article 6) Member State to adopt general binding rules for certain categories of installations or plants, which are intended to be used directly by competent authorities to set permit conditions; in this case, the permit may simply include a reference to such rules

  17. 2.2. IED – Common provisions 2. THE EUROPEAN LEGAL FRAMEWORK EFFECTIVENESS AND COMPLIANCE OF THE PERMIT (Articles 7-8) In the event of any incident or accident significantly affecting the environment the operator immediately informs the competent authority and takes the measures to limit the environmental consequences and to prevent further possible incidents or accidents; the competent authority requires the operator to take any appropriate and necessary complementary measures for the same purposes;

  18. 2.2. IED – Common provisions 2. THE EUROPEAN LEGAL FRAMEWORK EFFECTIVENESS AND COMPLIANCE OF THE PERMIT (Articles 7-8) In the event of a breach of the permit conditions the operator immediately informs the competent authority and takes the measures necessary to ensure that compliance is restored within the shortest possible time; the competent authority requires the operator to take any appropriate complementary measures necessary to restore compliance. Where the breach of the permit conditions poses an immediate danger to human health or threatens to cause an immediate significant adverse effect upon the environment, and until compliance is restored, the operation of the installation or plant or relevant part thereof shall be suspended.

  19. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK BASIC OBLIGATIONS OF THE OPERATOR (Article 11) Installations shall be operated applying the best available techniques so that appropriate measures are taken to: prevent pollution and not cause significant pollution; prevent generation of waste and, where waste is generated, follow the order of priority set by Directive 2008/98/EC (preparation for re-use, recycling, recovering or, if that is technically and economically impossible, disposition) avoiding or reducing any impact on the environment; use energy efficiently; prevent accidents and limit their consequences; upon definitive cessation of activities, avoid any risk of pollution and return the site to the satisfactory state defined in accordance with Article 22.

  20. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK THE SITE CLOSURE (Article 22) The introduction of specific rules dedicated to site closure is one of the major innovation contained in the Directive. While the previous IPPC Directive generically referred to the need to adopt “necessary measures to avoid any pollution risk and return the site of operation to a satisfactory state”, now Article 22 fixes a detailed set of fulfillments to make this obligation well-defined and more effective.

  21. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK THE SITE CLOSURE (Article 22) Where the activity involves the use, production or release of hazardous substances which are relevant to the activity itself and there is the possibility of soil and groundwater contamination at the site of the installation, the operator shall prepare and submit to the competent authority a baseline report before starting the operation of an installation. (or before a permit for an installation is updated for the first time after 7 January 2013) This report shall contain the information necessary to determine the state of soil and groundwater contamination so as to make a quantified comparison with the state assessed upon definitive cessation of activities. Where significant pollution of soil or groundwater by relevant hazardous substance is found compared to the state established in the baseline report, the operator shall take the necessary measures to address that pollution so as to return the site to that state (the technical feasibility of such measures may be taken into account).

  22. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK THE SITE CLOSURE (Article 22) Where there is not a baseline report (before the first updating of the permit after 7 January 2013 or because the operator is not required to prepare it) but a contamination of soil and groundwater is found originating from the permitted activities and posing a significant risk to human health or the environment, the operator shall anyway take the necessary actions aimed at the removal, control, containment or reduction of relevant hazardous substances so that the site, taking into account its current or approved future use, ceases to pose such a risk.

  23. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK APPLICATION FOR PERMIT (Article 12) The application for permit shall include a description of: (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) where applicable, a baseline report in accordance with Article 22; (f) 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; (g) the proposed technology and other techniques for preventing or, where this is not possible, reducing emissions from the installation; (h) measures for the prevention, preparation for re-use, recycling and recovery of waste generated by the installation; (i) further measures planned to comply with the general principles of the basic obligations of the operator as provided for in Article 11; (j) measures planned to monitor emissions into the environment; (k) the main alternatives to the proposed technology, techniques and measures studied by the applicant in outline.

  24. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK BEST AVAILABLE TECHNIQUES (BAT, Article 13) 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”.

  25. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK BEST AVAILABLE TECHNIQUES (BAT, Article 13) Definition in Article 2 ‘best available techniques’ means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole

  26. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK BEST AVAILABLE TECHNIQUES (BAT, Article 13) Definition in Article 2 ‘techniques’ 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.

  27. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK BEST AVAILABLE TECHNIQUES (BAT, Article 13) Another important innovation of IED is the reorganization of the system concerning Best Available Techniques (BAT) to be applied in installations. Beside the BAT reference documents (BREFs) – resulting from the exchange of information known as Sevilla Process and identifying applied techniques and BAT for specific industries – the European Commission shall also adopt “BAT conclusions” (assisted by a regulatory committee composed by the representatives of the Member States). This new document shall contain the parts of a BREF laying down the conclusions on best available techniques, their description, information to assess their applicability, the associated emission levels (AEL), but also associated monitoring, consumption levels and, where appropriate, relevant site remediation measures.

  28. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK BEST AVAILABLE TECHNIQUES (BAT, Article 13) BAT conclusions are made available in all the official languages of the Union. Member States: (Article 18) shall ensure that the competent authority follows or is informed of developments in best available techniques and of the publication of any new or updated BAT conclusions and shall make that information available to the public concerned; (Article 27) shall encourage the development and application of emerging techniques, in particular those identified in BAT reference documents (under the guidance that shall be established by the Commission)

  29. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK CONDITIONS OF THE PERMIT (Article 14) Rules about conditions of the permit have been updated and strengthened in accordance with the new provisions on soil protection and BAT conclusions: the permit shall always (no more only “if necessary”) contain measures to ensure protection of the soil and groundwater; requirements for the regular maintenance and surveillance of those measures; requirements for the periodic monitoring of soil and groundwater in relation to relevant hazardous substances likely to be found on site and having regard to the possibility of soil and groundwater contamination at the site of the installation;

  30. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK CONDITIONS OF THE PERMIT (Article 14) BAT conclusions shall be the reference for setting the permit conditions. For this reason the permit shall provide that results of emission monitoring are available for the same periods of time and reference conditions as for the emission levels associated with the BAT; are supplied to the competent authority («at least annually») in a summary which allows a comparison with the emission levels associated with the BAT.

  31. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK CONDITIONS OF THE PERMIT (Article 14) Some flexibilities on BAT conclusions are anyway allowed. The competent authority may: set stricter permit conditions than those achievable by the use of the best available techniques described in the BAT conclusions; set permit conditions on the basis of a best available technique not described in any of the relevant BAT conclusions (but the BAT shall be determined by giving special consideration to the criteria listed in Annex III and ensuring a level of environmental protection at least equivalent to the best available techniques described in the BAT conclusions); set permit conditions for activities or processes not covered (or not sufficiently covered in terms of potential environmental effects) by any of the BAT conclusions on the basis of a best available technique determined by giving special consideration to the criteria listed in Annex III.

  32. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK CONDITIONS OF THE PERMIT (Article 14) Anyway, it could happen that conditions based on best available techniques are not sufficient to achieve an environmental quality standard (the set of requirements which must be fulfilled at a given time by a given environment or particular part thereof, as set out in Union law). According to Article 18, if an environmental quality standard requires stricter conditions, additional measures shall be included in the permit, without prejudice to other measures which may be taken to comply with environmental quality standards.

  33. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK EMISSION LIMIT VALUES (Articles 15-16) Even in this case some flexibilities are provided: if the achievement of associated emission levels described in BAT conclusions would lead to disproportionately higher costs compared to the environmental benefits (due to geographical, environmental or technical characteristics of the installation) the competent authority may set less strict emission limit values, explaining in a dedicated annex to the permit the assessment and reasoning at the base of the conditions imposed. Emission limit values cannot in any case exceed the ones set out in the Annexes to the Directive and shall ensure a high level of protection of the environment. The application of this clause shall be re-assessed in every periodical reconsideration and updating of permit conditions;

  34. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK EMISSION LIMIT VALUES (Articles 15-16) in case of testing and use of emerging techniques, the competent authority may grant temporary derogations from the general rules on emission limit values, for a total period of time not exceeding 9 months; after this period, the technique may be maintained just if emissions achieve at least the emission levels associated with the BAT.;

  35. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK EMISSION LIMIT VALUES (Articles 15-16) Conditions for the monitoring of emissions (Article 16) shall be set having regard to the conclusions on monitoring described in the BAT conclusions. The frequency of the periodic monitoring shall be prescribed by the competent authority in the permit or in general binding rules; unless the risk of contamination imposes a systematic monitoring, it shall be carried out at least once every 5 years for groundwater and 10 years for soil.

  36. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK GENERAL BINDING RULES (Article 17) When adopting general binding rules, Member States shall ensure an integrated approach and a high level of environmental protection equivalent to that achievable with individual permit conditions. General binding rules shall be based on the best available techniques, without prescribing the use of any technique or specific technology. Member States shall ensure that general binding rules are updated to take into account developments in best available techniques.

  37. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK CHANGES BY OPERATORS TO INSTALLATIONS (Article 20) The operator shall inform the competent authority of any planned change in the nature or functioning, or an extension of the installation which may have consequences for the environment. Where appropriate, the competent authority shall update the permit. Substantial changes shall be always covered by a permit.

  38. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK RECONSIDERATION AND UPDATING OF PERMIT CONDITIONS (Article 21) The competent authority shall periodically reconsider all permit conditions and, where necessary to ensure compliance with the Directive, shall update those conditions. When reconsidering permit conditions, the competent authority shall use any information resulting from monitoring or inspections.

  39. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK RECONSIDERATION AND UPDATING OF PERMIT CONDITIONS (Article 21) In particular, the competent authority shall reconsider and if necessary update permit conditions: within 4 years of publication of decisions on BAT conclusions, in order to ensure the installation complies with those permit conditions; for installations not covered by any of the BAT conclusions, where developments in the best available techniques allow for the significant reduction of emissions; the pollution caused by the installation is of such significance that the existing emission limit values of the permit need to be revised or new such values need to be included in the permit; the operational safety requires other techniques to be used; where it is necessary to comply with a new or revised environmental quality standard.

  40. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK ENVIRONMENTAL INSPECTIONS (Article 23) All installations shall be covered by an environmental inspection plan at national, regional or local level. This plan shall be regularly reviewed and, where appropriate, updated. The frequency of routine environmental inspections shall be based on the environmental risks of the installations concerned and shall not exceed 1 year for installations posing the highest risks; 3 years for installations posing the lowest risks. If an inspection has identified an important case of non-compliance with the permit conditions, an additional site visit shall be carried out within 6 months of that inspection.

  41. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK ENVIRONMENTAL INSPECTIONS (Article 23) Non-routine environmental inspections shall be carried out to investigate serious environmental complaints, serious environmental accidents, incidents and occurrences of non-complianceas soon as possible and, where appropriate, before the granting, reconsideration or update of a permit. Following each site visit, the competent authority shall prepare a report describing the relevant findings regarding compliance of the installation with the permit conditions and conclusions on whether any further action is necessary. The report shall be: notified to the operator concerned within 2 months of the site visit taking place; made publicly available within 4 months of the site visit taking place.

  42. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK ACCESS TO INFORMATION AND PUBLIC PARTICIPATION (Article 24) The public shall be given early and effective opportunities to participate in the granting or updating of permits (procedure set out in Annex IV). When a decision on granting, reconsideration or updating of a permit has been taken, the competent authority shall make available to the public: the content of the decision, including a copy of the permit and any subsequent updates; the reasons on which the decision is based; the results of the consultations held before the decision was taken and an explanation of how they were taken into account in that decision; the title of the BAT reference documents relevant to the installation or activity concerned; how the permit conditions have been determined in relation to the best available techniques and emission levels associated with the best available techniques; where a derogation to emission limit values is granted, the specific reasons for that derogation and the conditions imposed.

  43. 2.3. IED – IPPC provisions (activities listed in Annex I) 2. THE EUROPEAN LEGAL FRAMEWORK ACCESS TO INFORMATION AND PUBLIC PARTICIPATION (Article 24) The competent authority shall also make available to the public: relevant information on the measures taken by the operator upon definitive cessation of activities in accordance with Article 22; the results of emission monitoring as required under the permit conditions and held by the competent authority.

  44. 2.4. IED implementation into Italian national law 2. THE EUROPEAN LEGAL FRAMEWORK In Italy the IPPC permit (“Autorizzazione Integrata Ambientale - AIA”) is regulated by Legislative Decree no. 152/2006 (named “Italian Environmental Code”). Italy was not able to comply with the implememtation deadline (expired on 7th January 2013) and implemented the IED just on 4th March 2014 with Legislative Decree no. 46/2014 modifying the Italian Environmental Code. The new rules will enter into force on 11th April 2014.

  45. THANK YOU FOR YOUR ATTENTION

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