Flemish Region implements EU Directive on industrial emissions: new concepts and obligations

The Flemish Region's detailed, implementing legislation of Directive 2010/75/EU (the 'Industrial Emissions Directive' or 'IED') was published in the Belgian State Gazette1 yesterday.

The Flemish Region is the second region to give force to the IED2. The Walloon Region implemented it in February 2013after the Walloon Government's adoption of four Orders3.? This implementation was further given form by the Walloon Government's adoption of an Order of 4 July 20134. Brussels has not implemented it in its legislation. In the Netherlands, implementation is nearly finished. As to the Dutch implementation of the IED, see the newsletter of Stibbe Amsterdam. France also recently finished implementing the IED5.

The IED recasts several old EU Directives, but it also introduces several new concepts. This newsletter gives you a first look into the most radical changes that affect operators of industrial activities.

  1. THE IED, INDUSTRIAL EMISSIONS DIRECTIVE (2010/75/EU)

The European Union's adoption of the IED on 24 November 2010 is basically a recast of several existing European Directives:

  • the IPPC Directive (Integrated Pollution Prevention and Control Directive)6;
  • the Large Combustion Plants Directive7;
  • the Waste Incineration Directive8;
  • the VOC Solvents Emissions Directive9; and
  • three Directives on Titanium Dioxide10.

The IED serves as a general legal binding framework for Member States when determining national rules for the integrated prevention and elimination of pollution caused by certain industrial activities. In addition to the existing Directives and the obligations arising from them that are already in place in the legal framework, the IED introduces some new concepts and obligations. The approach taken by the IPPC Directive remains the core approach taken in the IED as well, i.e., the (integrated) protection of the environment as a whole instead of several individual initiatives for just one component of the environment. Compared to the IPPC Directive, the IED strengthens this integrated approach even more.

  1. THE FLEMISH REGION'S IMPLEMENTATION OF THE IED

The first step in the Flemish IED implementation process occurred on 25 May 2012 when the Flemish Parliament adopted modifications to the three existing Flemish Decrees relating to the environmental permit, general environmental policy, and soil11. However, these modifications only outline the general policy on industrial emissions and have no direct consequences for industrial operators.

The second step was the Flemish Government?s issue of an Order for the IED implementation (''Flemish IED Implementation Order''). On 7 June 2013 the Flemish Government adopted modifications to the following Orders:

  • the Order of the Flemish Government of 6 February 1991 on the adoption of the Flemish regulations on the environmental permit ('VLAREM I');
  • the Order of the Flemish Government of 1 June 1995 on the general and sectorial provisions with regard to environmental protection ('VLAREM II');
  • the Order of the Flemish Government of 14 December 2007 on the adoption of the Flemish regulation on soil remediation and soil protection ('VLAREBO').

With today?s publication of the Flemish IED Implementation Order in the Belgian State Gazette, the IED is given force and is fully implemented in the Flemish Region. The general date of entry into force of most rules of the Flemish IED Implementation Order is 20 September 2013. There are also some exceptions and postponements of dates of entry into force for existing large combustion plants, among others.

  1. MOST IMPORTANT NEW CONCEPTS THAT APPLY TO INDUSTRIAL OPERATORS

3.1 The scope of industrial activities has been broadened significantly

  •  What does the IED stipulate?

The scope of the IED is broadened substantially because lower thresholds apply.

The IED covers all of the industrial activities mentioned in Annex 1. This Annex refers to energy industries, production and processing of metals, mineral industry, chemical industry, waste management, and other activities (e.g., the exploitation of slaughterhouses), and certain activities and installations using organic solvents.

According to the other Directives which had been replaced by the adoption of the IED (supra), the IED also covers installations that fell within the scope of these Directives. It mainly concerns large combustion plants, waste and co-incineration plants (any capacity), and titanium dioxide producing installations.

Compared to the old IPPC-Directive, the scope of the IPPC-activities was broadened in the sense that the IED also covers combustion plants with a power below 50 MW; disposal or recovery of waste in waste incineration plants or in waste co-incineration plants for hazardous waste with a capacity exceeding 10 tons per day; preservation of wood and wood products with chemicals with a production capacity exceeding 75 m3 per day other than exclusively treating against stain in lumber; etc.

  •  New rules in VLAREM I

The broader scope of the IED was fully transposed into the Flemish IED implementation legislation. The Flemish IED Implementation Order equally transposes all categories of industrial activities, as mentioned in Annex 1 of the IED, in Annex 1 of VLAREM I.

3.2 The Best Available Techniques (BAT)

  • What does the IED stipulate?

As mentioned, an integrated approach towards all components of the environment is essential for the reduction of industrial emissions. The application of the Best Available Techniques (?BAT?) is the most important instrument for this approach. Hence, BAT is central to the IED thus also the Flemish IED implementation Order.

To make the application of BAT within the permitting procedure more strict, the notion of BAT had to be clarified. This resulted in the adoption of three new definitions for these notions: Best Available Techniques12(BAT)' ; 'BAT reference document13', and BAT conclusions14.

According to the IED, BAT is the basis for determining not only emission limit values but also other permit conditions (Article 14.3 of the IED). However, the European Union wishes to go even further in pursuit of prevention and reduction of industrial emissions. Article 14 (4) of the IED allows Member States to set out rules for the competent authority to adopt stricter permit conditions than the ones achievable by using BAT.

Despite the general principle that Member States may not approve emission limit values that surpass the ones achievable by using BAT, Articles 15 (4) and (5) of the IED allow Member States? competent authorities to grant derogations from this principle in specific cases (Article 15 (4) of the IED) or for the testing or use of emerging techniques (Article 15 (5) of the IED).

  • New rules in VLAREM I

The importance of BAT within the Flemish permitting procedure is reflected in several modifications to VLAREM I. For example, reference can be made to the new Article 30bis,  6 of VLAREM I. This Article states that BAT is the reference that must be used by permitting authorities when the latter determine specific permit conditions. The criterion of BAT thus becomes a binding standard in the permitting procedure itself15.

The new Article 30bis, ?7 of VLAREM I allows the Flemish permitting authorities to adopt specific? and stricter permit conditions than what is achievable by using BAT. These permit conditions must be based on a need to protect humans and the environment, but they can also be adopted out of necessity (e.g., when specific local circumstances demand a higher level of environmental protection).

Derogations are possible from the general principle that BAT is the ultimate reference when determining the permit conditions. For example, on the basis of new Article 30bis, ?10 of VLAREM I, the permitting authorities may grant emission limit values that differ from the ones stated in the BAT conclusions in terms of level, periods, as well as reference situations. The permitting authorities may also grant a temporary exemption from the aforementioned principle for the testing or use of emerging techniques

3.3 More stringent emission limit values

  •  What does the IED stipulate?

The IED stipulates more stringent emission limit values for large combustion plants and installations that produce titanium dioxide.

These substances have emission limit values: CO, NOx, VOC, SO2, PM10, dioxins and furans, TOC, HCL, HF, NO, NO2, Cd, TI, Hg, Sb, As, Pb, Cr, CO, Cu, Mn, Ni, V, and Zn.

Although the general obligation of Member States to transpose the IED into national laws, regulations, and administrative provisions is no later than 7 January 201316, Article 82 lays down different deadlines for the transitional implementation of the new emission limit values:

  1.  in relation to installations carrying out certain activities17 and which are in operation and hold a permit before 7 January 2013 or the operators of installations which have submitted a complete application for a permit before that date, provided that those installations are put into operation no later than 7 January 2014, Member States must apply the newly adopted laws, regulations and administrative provisions from 7 January 2014 (except Chapter III18and Annex V19of the IED);
  2.  with regard to installations that do not fall within the scope of said transitional arrangement20, Member States must only apply these newly adopted laws, regulations, and administrative provisions from 7 July 2015 (except Chapters III and IV21 and Annexes V and VI22 of the IED);
  3.  in relation to combustion plants23 referred to in Article 30 (2) of the IED, Member States must? apply the newly adopted laws, regulations, and administrative provisions starting 1 January 2016 to comply with Chapter III and Annex V of the IED.
  •  New rules in VLAREM II

The emission limit values (the actual numbers) have been implemented without change.

The initial draft of the Flemish IED Implementation Order proposed a retroactive entry into force.

The Flemish government justified this retroactive application by referring to several other European Directives for which the period for implementation had long passed. However, the Department of Legislation within the Council of State ruled against the retroactive entry into force. After all, the Flemish IED Implementation Order provides several new (and stringent) obligations (e.g., emission limit values almost twice as stringent as those currently in place). Giving retroactive effect to the Order would conflict with the principle of legal certainty and the principle of foreseeability of the regulations. In its final version, the Flemish IED Implementation Order no longer stipulates that the legislation should come into effect retroactively. Subsequently, the provisions will, generally, enter into force only after it has been published officially.

However, the provisions on the Flemish IED Implementation Order's entry into force allow, generally, for two types of derogations:

  • a general derogation for operators that submitted a full application before the entry into force of the Flemish IED implementation Order and for installations (not being GHG-installations)24 that were in operation at the moment of entry into force of the same Order but fall under a new or a modified category of Annex 1 of VLAREM 1 as a result of this Order, and as long as they were already subject to a permitting duty under Annex 1 of VLAREM I at the moment of this Order's entry into force.
  • a specific derogation for the installations covered by Article 238 of the Flemish IED Implementation Order 25 and for the IPPC-installations, other than the ones mentioned in Article 238, but in operation or granted an environmental permit before 7 January 2013 or for which a complete application for an environmental permit was introduced before 7 January 2013 and that was taken in operation no later than 7 January 2014.

3.4 Baseline report

  • What does the IED stipulate?

The IED considers that drawing up a baseline report is essential 'to ensure that the operator of an installation does not deteriorate the quality of soil and groundwater' (Consideration 24 of the IED). This obligation is brand new and did not exist in the predecessors of the IED.

This baseline report, which represents the 'zero-setting', should be a practical tool that permits, as far as possible, a quantified comparison between the state of the site described in the baseline report and the state of the site upon definitive cessation of activities. The purpose of this is to ascertain whether a significant increase in pollution of soil or groundwater has taken place. Therefore, the baseline report should contain information that make use of existing data on soil and groundwater measurements and historical data related to past uses of the site.

According to Article 22 of the IED, this obligation is triggered before the start of operation or if the installation is already in operation at the moment of entry into force of the IED implementation laws and regulations  before a permit of an existing installation is updated for the first time after 7 January 2013 ('preliminary duty'), and finally upon definitive cessation of activities.

The preliminary duty only applies to installations whose activities involve the use, production, or release of relevant hazardous substances. Understandably, such activities require a greater sense of awareness.

If the baseline report, drawn up upon definitive cessation of activities, shows that the installation has caused a significant pollution of soil or groundwater compared to the state established as a result of the preliminary duty, the operator is obliged to take the necessary measures in returning the soil and/or groundwater to its previous state (as established by the initial baseline report).

Moreover, the IED states that if the established contamination of soil and groundwater poses a significant threat to human health or the environment, the operator must take the necessary measures to remove, control, contain, or reduce relevant hazardous substances to neutralize this risk.

  •  New rules in VLAREBO
  • Recap of the existing soil and groundwater rules

Since 1995, the Flemish regulations on soil and groundwater already impose several soil and groundwater obligations on operators of risk installations, i.e., installations and activities operated on risk land26. The Flemish Soil Decree of 27 October 2006 lays down specific obligations that must be complied with for transfer of so-called land at risk or risk land27?.

A transfer of risk land requires the drafting of a preliminary soil survey (the PSS) and, if necessary, a descriptive soil survey (the DSS), possibly followed by a soil remediation project.

Also, certain operators of risk facilities must conduct a PSS periodically. This periodic investigation obligation might also trigger soil remediation. The Soil Decree imposes, under specific conditions28, a soil remediation obligation on the operator of a facility (or the user or owner) on the land on which the pollution was generated unless it is eligible for exemption.

Operators of risk facilities must also notify the OVAM of the definitive cessation of their risk activities. This notification must be accompanied by a PSS. Depending on the results of the PSS, the OVAM may require the operator to conduct a DSS and possibly to draw up a soil remediation project.

  • New rules on the baseline report

Implementing the IED?s obligation to draw up a baseline report led to the Flemish legislation?s imposing of an additional soil survey obligation (new Article 33bis of the Soil Decree). Only operators of a limited number of risk-installations are obligated to draw up the baseline report. The risk-installations requiring a baseline report are indicated by the letter S in column 8 of Annex 1 of VLAREM I.

When a baseline report must be drawn up to assess the zero-setting of the soil, the derogations described in Articles 64?67 of VLAREBO29do not apply.

It is impossible to determine the zero-setting when it comes to installations that are already in operation at the moment of the Flemish IED Implementation Order's entry into force. However, this does not imply that these installations are exempt from this duty because Article 33bis1 of the Soil Decree imposes in such scenarios to conduct a baseline report before 7 January 2014 (or, in some scenarios, before 7 July 2015). This approach differs from that of the IED because the latter stipulates that a baseline report must be drawn up before the permit for an installation is updated for the first time after 7 January 2013.

Until today, the Flemish environmental legislation does not stipulate such periodic reconsideration and update of the permit conditions that are to be made by the permitting authorities. However, this is about to change in view of the 'single permit' that is coming soon. The idea of a periodic assessment of the permit conditions has been transformed into the project for a Decree on the single permit, currently in preparation. The baseline report needs to be seen as an accompanying measure of the implementation of the single permit procedure.

  1. THE IMPLEMENTATION OF THE DIRECTIVE IN THE NETHERLANDS: A DIFFERENT APPROACH?

The IED including the crucial role of BAT in the permitting procedure has also been transposed into the legislation of the Netherlands. Unlike Flanders, the Dutch authorities use a system of a single permit. The single permit is permanent but must be updated from time to time. Some of the modifications to the Dutch Act on the general provisions on environmental law (known as the ''Wabo'') include the following:

  • the publishing of BAT conclusions should be considered developments in the field of technical possibilities to protect the environment. These BAT conclusions must be taken into account when updating the permit;
  • when updating the permit, the permitting authorities can also adopt provisions on the application of other techniques that were not applied for. This allows the permitting authority to change the contents of the permit application.

For more information on specific rules in the Netherlands, please click here (in Dutch).