As the European Commission intends to present on Tuesday 5 April (provisional date) a proposal to revise the Industrial Emissions Directive (2010/75) (‘IED Directive’) as part of a legislative package on emissions and pollutants, EUROPE obtained on Wednesday 30 March a draft version of the text outlining the proposal.
Dating from 2010, the ‘IED’ directive aims to prevent or reduce pollution from industrial activities (emissions of polluting substances into the air, water and soil and the generation of waste), in order to protect the environment and human health.
Broadening the scope of application
It covers about 52,000 industrial installations (refineries, waste treatment and incineration, metallurgy, cement, chemicals, etc.), power plants and large-scale livestock operations, which together account for about 20% of the EU’s overall air pollution emissions, about 20% of water pollution emissions and about 40% of greenhouse gas emissions.
According to the draft text, the Commission wishes to add to these sectors the extraction of industrial and metallic minerals, as well as large battery manufacturing plants (those with a production capacity of more than 2.5 GWh per year).
It also intends to insert a new chapter in the Directive on ‘special provisions for the keeping of poultry, pigs and cattle’. This chapter includes lowering the threshold of livestock units at which pig and poultry installations are covered by the Directive (125 units or more), and adding cattle farming to its scope (for installations of 100 units or more).
Furthermore, the Commission considers that Annex II of the Directive, which is a non-exhaustive list of polluting substances, should be deleted as it “is not compatible with the holistic approach sought and the need for competent authorities to take into account all relevant polluting substances, including those of emerging concern”.
The institution proposes to refer instead to Annex II of the European Regulation (166/2006) establishing a Pollutant Release and Transfer Register.
Transparency requirements linked to authorisations
In order to increase transparency, the Commission plans to oblige Member States to ensure that permits to operate all or part of an installation are made available to the public free of charge on the Internet, together with a uniform summary of the permits.
This summary should include at least an overview of the main requirements for the permit listed in the Directive, the emission limit values and environmental performance limit values, any derogations granted, conclusions on the applicable ‘best available techniques’ (BAT), and provisions for the review or revision of permits.
With the support of the European Environment Agency (EEA), the Commission also intends to launch a publicly accessible online ‘industrial emissions portal’, which will integrate the administrative and thematic information reported by Member States under the Directive, combined with information provided under Regulation 166/2006.
An environmental management system
Another new feature proposed is the mandatory implementation of an ‘environmental management system’ (EMS) for each installation covered by the Directive.
This system would be made available to the public free of charge on the Internet and should include: (1) the development of an environmental policy aimed at the continual improvement of the environmental and safety performance of the installation; (2) targets and performance indicators relating to significant environmental aspects; (3) an inventory of the hazardous substances present in the installation, a risk assessment of the impact of their use on human health and the environment, as well as an analysis of the possible substitution of the substances of concern by safer alternatives; (4) the planning and implementation of the necessary procedures and actions (including corrective and preventive actions, if necessary) to achieve the environmental objectives and avoid risks to the environment and human health.
Promoting innovation
In order to encourage the deployment of emerging techniques with better environmental performance, the draft contains a new chapter on the promotion of innovation.
In particular, it provides for the establishment of a specialised centre to support innovation (‘Innovation centre for industrial transformation and emissions’) which would collect and analyse information on innovative techniques by characterising their level of development.
Operators would also be required to produce transformation plans by 30 June 2030, so that they could be taken into account in licence reviews.
Minimum penalties
The draft also completes the chapter of the Directive on sanctions applied by Member States in the event of infringements of national provisions adopted pursuant to the Directive.
According to the text, these sanctions should include, as a minimum, fines proportionate to the turnover of the legal person or the income of the natural person committing the infringement, calculating the level of these fines in such a way as to ensure that they effectively deprive the perpetrators of the economic benefits derived from their infringements, and progressively increasing the level of these fines in the case of repeated infringements.
These fines should amount to at least between 5 and 8% (the precise percentage is not yet fixed in the draft) of the operator’s annual turnover in the Member State concerned.
Compensation
In order to ensure that the public can seek and obtain compensation when damage to health has occurred due to a breach of the Directive, the draft introduces a new article on compensation.
Member States should thus ensure that the competent authorities concerned and, where identified, the natural or legal persons responsible for the infringement provide compensation for the damage.
The burden of proof would be on the defendant to prove that the infringement did not materially contribute to the damage.
The limitation periods for bringing actions for damages should not be less than 5 years, the draft says.
See the draft: https://aeur.eu/f/11g (Original version in French by Damien Genicot)