Ambitious new emission limits are to be introduced for medium combustion plants such as electricity generators and heating systems via the Medium Combustion Plant Directive (the “Directive”).

This Directive has been fast tracked through the European legislative procedure via an informal mechanism known as the “early agreement” procedure where a common position is reached between representatives of the European Parliament and the European Council. This effectively allows an agreed document to be presented to both the Parliament and the Council in order to speed up the approval process and is a demonstration of the political will within Europe to introduce the new regime.

The legislation is being introduced because of the gap in regulation for those industrial operations which are too large to fall within the regime which imposes eco-design requirements for energy related products and those which are too small to fall within the scope of the Industrial Emissions Directive and/or the Large Combustion Plant Directive which currently or will regulate emissions to air from significant industrial facilities such as large factories and power stations.

The aim is therefore to control, and ultimately reduce, the emissions from industrial emissions which are not already within scope of existing regimes which control emissions to air. Specifically, the Directive will apply to any plant or equipment where fuel is oxidised in order to generate heat which has a rated thermal input of 1 Mw and above, but less than 50 Mw.

Like most comparable regimes the Directive will draw a distinction between equipment which is already operational when it is introduced and that which is designed and installed after it has been introduced. In this legislation the distinction is drawn between existing combustion plant and new combustion plant for the purposes of setting emission limits.

For these purposes, “existing combustion plant” is currently defined in the Directive as combustion plant (i) put into operation before 1 year after the date of transposition; or (ii) for which a permit is granted within 6 months of transposition and the plant is put into operation within 18 months of transposition.

This transitional arrangement reflects the fact that it is often harder for financial, technical and practical reasons (such as lack of space) to install abatement equipment retrospectively than it is to factor that equipment into the design and construction of new equipment.

This will mean that plant and equipment which is installed before or within a short period after the date the legislation is introduced will be typically subject to less stringent emission limits and/or be given more time and flexibility to achieve the required emission reductions.

whilst it is still not certain exactly when the Directive will be introduced it is likely to be within in the next 6 – 18 months. However, operators who are looking to introduce plant in the short to medium term can take an educated guess whether that plant will be existing or new plant in order to determine which emissions limits and timescales are likely to apply.

In practical terms this will mean that any equipment which is installed within two and a half years to 3 years from the date that the Directive enters the Official Journal, depending upon the circumstances, will be classed as an existing plant for the purposes of the Directive. This is because Member States have 18 months to transpose the Directive and, as currently drafted, an existing plant is one which is installed within 12 months of the date of transposition or for which a permit is granted within 6 months of transposition and the plant is put into operation within 18 months of transposition.

As with the Large Combustion Plant Directive and the Industrial Emission Directive we expect that the UK Government will implement the Directive by means of the Environmental Permitting regulations, particularly as the text now requires the operators of affected plant to apply to national regulators for an authorisation to operate the plant, as opposed merely to registering its use.

The environmental permitting regime provides an established framework for implementing the requirements of the Directive and is used to give effect to a range of similar directives and regulations which impose similar restrictions.

Operators of combustion plants which are not currently subject to emission limits under an existing regimes therefore need to follow the progress of the Directive closely as it will impact on their operations very soon.

Most recently the representatives of Member States have voted not only in favour of the adoption of the Directive but also for amendments which would require Member States to assess whether to introduce even stricter limits than those prescribed in the Directive in areas where emissions would entail the breach of EU ambient air quality standards.