Assessment of the use of general binding rules for the implementation of the IPPC Directive Final Report
Assessment of the use of general binding rules for the implementation of the IPPC Directive
European Commission – DG Environment
Service contract No ENV.C.4/SER/2006/0035
Final Report
29 November 2007
VITO
Boeretang 200
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Belgium
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Internet: http://www.emis.vito.be / AEA Energy & Environment
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Fax: +44 (0)870 190 6318 Internet: http://www.aea-energy-and-environment.co.uk/ / Fundación LEIA
Centro de Desarrollo Tecnológico
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01510-Miñano (Álava)
Telephone.: +34 945 298 144
Fax: +34 945 298 217
Internet: http://www.leia.es
Citation and disclaimer
This report should be quoted as follows:
VITO, AEA and LEIA (2007) Assessment of the use of general binding rules for the implementation of the IPPC Directive, Draft Final Report
The contents and views contained in this report are those of the authors, and do not necessarily represent those of the European Commission
Contributing Authors:
Peter Stouthuysen, Liesbet Goovaerts, Jenni Murphy, Nicole Jaitner, Ian Skinner, Ignacio Calleja, Paul James and Karl Vrancken
Contacts.
· Overall responsible for the contractors VITO, AEA and LEIA: Karl Vrancken of VITO,
· For the European Commission – IPPC desk officers: Alexandre Paquot and Filip François. Overall responsible: Head of Unit: Marianne Wenning.
Contents
Summary 3
1. Introduction 3
1.1 Use of general binding rules in the context of the IPPC Directive 3
1.2 Objectives of the project 3
1.3 Definition of GBRs used in this project 3
1.4 Coverage of the work 3
1.5 Main milestones of the project 3
1.6 Structure of this report 3
2. Application of General Binding Rules in the EU 27 as an approach to the implementation of the IPPC Directive 3
2.1 Data gathering 3
2.2 Overview of the use of General Binding Rules in the 27 Member States 3
2.3 Summary of outcome of questionnaires to the Member States 3
3. Case studies 3
3.1 Case study selection 3
3.2 Case studies: Overview of the content and conclusions of the individual cases. 3
3.3 Summary conclusions of the case studies 3
4. IT 3
5. Conclusions 3
List of abbreviations: 3
ANNEX I – Questionnaire GBR Country Profile 3
ANNEX II – Case study fact sheets 3
Summary
This draft final report for the project ‘Assessment of the use of general binding rules for the implementation of the IPPC Directive’ has been written by VITO, in association with AEA and LEIA.
GBRs, for this report, are defined as ‘limit values or other conditions (defined in particular in environmental laws, regulations and ordinances) at sector level or wider, that are given with the intention to be used directly to set permit conditions. They provide direct conditions or minimum standards. GBRs are binding either to the authority or to the operator. However, under certain conditions, some general rules may not be mandatory and deviation will be allowed, although the normal expectation would be that the rules be used directly.’ The option of using GBRs for implementation of the IPPC Directive is given in Article 9 (8).
This work aims to lead to a better understanding of the way Member States make use of general binding rules (GBRs) and benefit from lessons learnt on MSs’ approaches to the implementation of the IPPC Directive. The work includes the collection of country specific data on the use of GBRs while case studies give a better understanding of the way these GBRs are used. The case studies provide an assessment and evaluation of the GBRs concerned against the requirements of the IPPC Directive.
A web based consultation tool (http://cms.emis.vito.be) was built to support the process of the individual MS data gathering. Information per MS in the form a "country profiles" were made available for the IPPC Experts Group (IEG) members. They were invited to check and complete their country’s profile through the use of this consultation tool. The information from the Country Profiles was used to select 15 case studies. Each case study discusses in detail the use of GBRs for a specific IPPC sector in a MS. The content of these case studies is based on literature, information from the country profiles and information delivered by the MS contact (generally the IEG member).
This report contains a general overview of the content and conclusions of the individual country profiles and case studies. The complete country profiles and case studies can be found in the annexes of this document.
GBRs are used for reasons of regulatory transparency, administrative efficiency, consistency, sector size and comparability. In none of the Member States where GBRs are used, was the IPPC Directive a trigger to begin using GBRs. Existing legislative systems have been adapted to fit into the IPPC framework.
The reduction of administrative burden is cited as a reason to use GBRs. Nevertheless this reduction of administrative burden or cost has never been measured. As most GBRs systems are often still coupled to case by case permitting, it is not sure that the administrative workload for the permit writing is reduced.
Comparison of the GBR conditions with BAT AELs show that about half of the case studies analysed are not based on the BAT conclusions of the BREFs. Only the recently updated GBRs are in line with BAT set in the BREFs, and revision of GBRs after publication of a BREF faces considerable delay. GBRs rather provide minimum standards and only a limited number of GBRs are directly binding to operators. GBRs set the general (national) framework and give a basis for (local) permit writers when setting their permit conditions. The revision of GBRs is seen as an important issue in their application. The cases illustrate that there is considerable delay in updating old GBR systems and adapting existing systems to new information. This is partially due to the high level of decision making that is involved in setting GBRs.
This project provides insight as to the way these rules have been determined and are used and assesses the use of GBRs against the obligations laid down in the IPPC Directive. GBRs are used to support, but not replace, case by case permit writing. They are considered by the MS concerned as a valuable tool to provide a level playing field in countries or regions with a decentralised permitting authority.
1. Introduction
1.1 Use of general binding rules in the context of the IPPC Directive
The IPPC Directive 96/61/EC provides the main framework for the prevention and control of pollution from major industrial installations in the EU. The Directive provides for this control by setting out requirements for the MS in respect of the permitting of certain industrial activities, with the objective of achieving a high level of protection for the environment as a whole. Of particular significance are the requirements for:
· An integrated approach i.e. one that considers all environmental media, and other factors; and,
· Permit conditions to be based on the Best Available Techniques (BAT).
The term BAT is further defined in the Directive, and the inclusion in permits of pollutant emission limit values based upon BAT is noted, taking account of the “technical characteristics of the installation concerned” and of “local environmental conditions”.
In addition to the possibility of carrying out a site specific determination of permit conditions, Article 9(8) of the IPPC Directive provides for the possibility of using ‘General Binding Rules’ (GBRs). This Article states the prerequisite that: the integrated approach is maintained, and that an equivalent high level of environmental protection is ensured. Nevertheless, the Directive does not give a definition of the term ‘General Binding Rules’.
Some Member States have chosen to carry out assessments at “installation level” in order to set specific permit conditions. In other cases Member States have chosen to issue National or Regional rules (e.g. Belgium) based on BAT and, provided the installation meets these requirements, then it is deemed to be using BAT. In other cases (e.g. Germany) a mixed approach is adopted, with a local assessment carried out in addition to the use of national rules (e.g. to check for specific local circumstances that may require permit alterations). In other cases, the Member State issues non-binding BAT guidance (e.g. UK) that is then used by applicants as a basis for their permit applications, with departures from the guidance requiring specific justification.
The IMPEL report on GBRs[1] identified three levels or types of GBRs:
1. A statutory set of standard conditions applying to the entire operation of an installation;
2. A statutory set of standard conditions applying to one or more aspects of the operation of an installation;
3. A statutory set of minimum conditions established at a national level and binding on regional regulators.
Each of the categories mentioned in the IMPEL report has its own merits and limitations and requires a dedicated approach concerning implementation and application.
GBRs may take the form of standard emission limits for individual categories of installations or standard conditions for the operation of (specific parts of) installations. Within the latter category most can be used for very small processes which are not included within the IPPC regime, although some are applied to IPPC installations. At present, the set-up and use of GBRs in view of IPPC implementation is relatively new and not well documented.
The LDK-ECO report on IPPC implementation[2] (EU-15, period 2000-2002) notes that:
‘At least 8 Member States had established general binding rules, most commonly in the form of legislative orders, for various industry sectors.’ It points out AT, BE, DK, FR, DE, NL, ES and SE as ‘users’.
Furthermore, the LDK-ECO report lists the sectors in which GBRs are used, for some of the above-mentioned countries: LCP and waste incineration are common for most countries. The status of the implementation of IPPC was subject to a second questionnaire, covering the period 2003-2005 and the EU-25. The results of the questionnaires provided basic data for the current project
1.2 Objectives of the project
GBRs are a tool in the implementation of IPPC. However, at present, there is a lack of knowledge on the practical consequences of using GBRs in the IPPC area. This report provides a further basis to fill the gap.
The project had the following main objectives:
· to gather information and draw up a general overview of the use of GBRs for the implementation of the IPPC Directive;
· to gain an understanding of the way these rules have been determined and are used; and,
· to assess the use of GBRs against the obligations laid down in the IPPC Directive.
The key objective was therefore to better understand the way Member States make use of GBRs, and to benefit from lessons learnt on MSs’ approaches to implementation of the IPPC Directive.
1.3 Definition of GBRs used in this project
GBRs, for this report are defined as ‘limit values or other conditions (defined in particular in environmental laws, regulations and ordinances) at sector level or wider, that are given with the intention to be used directly to set permit conditions. They provide direct conditions or minimum standards. GBRs are binding either to the authority or to the operator. However, under certain conditions, some general rules may not be mandatory and deviation will be allowed, although the normal expectation would be that the rules be used directly.’ This definition should be considered as a working definition in the framework of this project. It cannot be seen as a legal interpretation.
MSs may indicate that they use General Binding Rules, however these rules actually appear to be “General Guidance”, which do not have a legally direct binding character on operators. There is a grey area, which will be partially covered in the report. In general the differentiation will be on the basis of the intention of the rules/guidance. If the intention is to use the tools only as a starting point, and the expectation is that actual permit conditions will often deviate, then these should be considered as guidance and not rules. If, on the other hand, the intention is that the tools provide a direct basis for permit conditions, albeit potentially with some scope for deviation (but expected to be used in exceptional cases), they are considered rules.
1.4 Coverage of the work
This project aims to lead to a better understanding of the way Member States make use of GBRs, and to benefit from lessons learnt on MSs’ approaches to the implementation of the IPPC Directive. The work includes the collection of country specific data on the use of GBRs while case studies will give a better understanding of the way these GBRs are used. In particular, it is checked if their use is in line with the obligations laid down in the IPPC Directive.
A web-based consultation tool was built to support the process of the individual MS data gathering. Pre-filled country profiles were made available for the IEG members. They were invited to check and complete their country’s profile through the use of this CMS. It was intended that the information collected in the country profiles would give an insight on the use of GBRs for permitting IPPC installations in the EU. The overall conclusions of the MS country profiles are presented in chapter 3 of this report.
All this information was collected into a database and for its consultation a user-friendly web based interface was built. This interface will be an integrated part of the IRIS (Industrial Reporting Information System) website being developed as part of the analysis of the 2nd Member States implementation reports (for the period 2003-2005).
Based on the information from the Country Profiles, 15 case studies were selected. Each case study discusses in detail the use of GBRs for a specific IPPC-sector in a MS. The content of these case studies is based on literature, information from the country profiles and information delivered by the MS contacts (generally the IEG members).
The case studies focus on the historical development of the GBR, their administrative framework, the compliance with the IPPC permit requirements and the revision procedures.