The Industrial Emissions Directive ("IED", 2010/75/EU) adopted in 2010 introduced more stringent measures for the protection of soil and groundwater.
The IED concerns more than 50,000 installations throughout Europe carrying out activities such as the combustion of fuels, iron and steel, paper and pulp, the tanning of hides and skins, waste treatment, food production, or chemicals processing (collectively, "IPPC activities"). In most cases, defined production capacity thresholds have to be exceeded in order to fall under the Directive's scope.
The IED requires that every installation subject to its scope is only operated with a permit providing for the application of the best available techniques ("BAT") to prevent and/or control the pollution of the environment. Following a stakeholder process, the European Commission adopts implementing decisions laying down conclusions on what is to be understood as BAT ("BAT conclusions"). These conclusions must be observed when IPPC activities are permitted.
Moreover, the IED strengthened the groundwater and soil protection instruments contained in its "predecessor", the IPPC Directive (96/61/EC, codified as 2008/1/EC). The two most essential measures introduced with the IED in that context are the establishment of a so called "baseline report" and periodic measurements of the groundwater and soil status.
Duty to establish a baseline report
The baseline report has to contain data on the groundwater and soil status on the industrial site of the IPPC activity. When the activity is definitely ceased, the (final) operator must again provide data proving that no significant deterioration of the groundwater and soil status occurred. If deterioration has occurred, the operator must take clean-up actions.
However, a baseline report does not have to be drawn up for each and everyinstallation in which an IPPC activity is performed. Whether a report is obligatory depends not only on the chemical substances and mixtures being used, produced or emitted, but also on the possibility of groundwater and soil pollution on the respective site. The latter may in particular depend on the amount of substances used and their role in the production process, as well as on the precautionary measures taken.
In order to assist the considerations to be taken if a report must be produced and to outline which data such a report must include, the European Commission recently published a specific guidance document. This guidance provides a gradual approach to the aforementioned questions and aims inter alia at a more consistent understanding of the Directive's provisions throughout the EU, thus avoiding unnecessary administrative burdens for the operators and the authorities.
Duty to undertake periodic measurements
The IED obliges the operators of IPPC installations to implement appropriate groundwater and soil protection measures to be complied with while an IPPC activity is being carried out. Furthermore, it requires that the effectiveness of such measures is inter alia monitored by periodic measurements of the groundwater and soil status on the site. As a rule, such measurements must be performed at least every five years concerning the groundwater status and every ten years concerning the soil status.
As for the question whether a baseline report must be drawn up, the chemical substances being used and the possibility of on-site pollution play important roles.
The new guidance paper issued by the European Commission may also help in this respect.
Date of application of the new provisions
The provisions of the IED had to be transposed into national law by January 2013.
Without prejudice to a stricter transposition in the respective national legislation of the EU Member States, the obligations to submit a baseline report and to start conducting periodic status measurements become effective as follows:
- For new installations: A necessary report must be attached to the permit application. In the permit, periodic on-site measurements of the groundwater and soil status will have to be prescribed.
- When installations are changed: At least if an IPPC installation is "substantially" changed – which requires a permit – within the meaning of the IED, the necessity of drawing up a baseline report and prescribing periodic measurements will have to be considered.
- Other existing installations: A baseline report may have to be submitted and periodic measurements prescribed the next time the (existing) permit must be reconsidered and updated. As a rule, the reconsideration of a permit is necessary within four years after the adoption of new or revised BAT conclusions.
BAT conclusions triggering the reconsideration of a permit within the next years are already available for the following industries: iron and steel, glass, chlor-alkali, tanning, cement and lime, and – shortly – pulp and paper. See here.
Notably with a view to the time of the permit reconsideration, the operators of existing IPPC installations are strongly advised to gather in a timely manner the data necessary for assessing whether the establishment of a baseline report and periodic measurements could be mandatory for their activities. Information on upcoming BAT conclusions can be found on the website of the EU IPPC Bureau.