With the UK Government consulting on moves to turn the EU Emissions Directive into UK law, Stephens Scown’s Robert Camp looks at how the legislation is aimed at streamlining regulation…
In December 2010, the EU Industrial Emissions Directive was published in the Official Journal and came into force on 6 January 2011. The deadline for member states to implement it into domestic law is 6 January 2013.
The adoption of the Directive followed a process which began in November 2005, when the European Commission launched a review of legislation concerning industrial emissions. The review, which lasted two years, was intended to discover whether legislation could be improved to offer a high-level of protection for the environment and human health, while also simplifying existing emissions’ legislation and reducing unnecessary administrative costs.
The Commission issued its proposals in December 2007, but political agreement was not reached until June 2009 and it was a further 18 months before a final draft of the proposal was agreed and ratified by the European Parliament and European Council.
The resulting Directive brings together seven separate existing directives – the IPPC Directive concerning integrated pollution prevention and control, the LCP Directive concerning emissions of certain pollutants from large combustion plants, the Waste Incineration Directive, the VOC Solvents Emissions Directive and the three Titanium Dioxide Directives – in a bid to avoid overlaps and inconsistencies.
The aim of the Directive is to prevent or reduce emissions from industrial installations to the air, land and water. It does this by:
- Requiring installations falling within its scope to operate under a permit;
- Streamlining the permitting, reporting and monitoring requirements of the seven separate directives – which it’s hoped will reduce the operators’ administrative burden;
- Extending the pollution prevention and control approach already adopted EU-wide;
- Strengthening the use of Best Available Techniques (or BAT); and
- Reducing inconsistencies in how BAT is applied by enforcement authorities in different member states.
The Directive is relevant to the minerals industry as a whole. Chapter II (Articles 10-27) applies to activities previously covered by the IPPC Directive with some minor changes – these include mineral extraction and waste management (including landfill) activities.
Annex I of the Directive sets out relevant emission thresholds, broadly similar to those in the IPPC Directive, but with changes to the energy and waste sectors and the inclusion of some additional activities.
Commentators agree one of the most important changes brought in by the Directive is to formalise and tighten the application of BAT. BAT is the most-effective techniques to achieve a high-level of environmental protection, taking into account the costs and benefits, technology used and the way an installation is built, operated and maintained.
Member states must make sure operators apply BAT when operating their installations and permits for Annex I activities and include conditions set by reference to “BAT conclusions”.
BAT conclusions are a new type of legally-binding document and add to the existing, on-going obligation to set emission limit values in permits by reference to BAT. Article 13 formalises new, detailed requirements for identifying what constitutes BAT for a particular activity, including emission levels, monitoring and relevant site remediation measures – these did not exist under the IPPC Directive.
Other novelties include new requirements:
- To check and maintain measures to prevent emissions to soil and groundwater and to monitor soil and groundwater periodically to check for hazardous substances.
- For the operator to report to the permitting authority at least annually.
- For proper assessments of compliance with emission limits and other requirements.
- For the site to be cleaned up when activities end – going considerably beyond what was required under the IPPC Directive.
- New obligations on permitting authorities to review and update permit conditions regularly.
- On emission limit values – in particular, provisions explaining how permitting authorities should calculate and set limit values in permits to ensure that, under normal operations, the installation does not emit higher levels of pollutants than under BAT conclusions.
- Site operators that use, produce or release hazardous substances must prepare a baseline report (before starting to operate the installation) for the permitting authority, setting out information to enable the soil and groundwater contamination state to be compared when the site is closed. The information needed is far more detailed than under the equivalent IPPC Directive provision.
- For environmental inspections of installations, which again are more detailed and specific than under the IPPC Directive,
- And permitting authorities must make significant additional information publically available about decisions on granting, reviewing and updating permits.
The UK’s Department for Environment, Food and Rural Affairs started its consultation process on bringing the Directive into law in March this year (the Welsh Assembly is carrying out a similar process in Wales).The deadline for responses is 6 June 2012 and more information can be found at www.defra.gov.uk
Robert Camp heads the minerals team at Stephens Scown LLP in the UK which has more than 70 years’ experience representing mining and minerals clients. He can be contacted on +44 (0)1392 210700 or email firstname.lastname@example.org