Artikel Industrial Emissions in Industrial Parks – What’s New in the Industrial Emissions Directive?

As stated in the second recital and in accordance with the polluter pays principle and the precau-tionary principle, the directive aims to prevent, reduce, and as far possible eliminate pollution by industrial activities. The EU has therefore sought to establish a general framework for control of the main industrial activities, giving priority to intervention at source and ensuring prudent management of natural resources. Specific local conditions should be taken into account. An integrated concept will also aim to prevent the shifting of environmental burdens from one area to another. The new directive recasts the currently valid European directives on industrial emissions:

• 2008/1/EC (Integrated Pollution
• Prevention and Control Directive)
• 1999/13/EC (Solvent Emissions
• Directive)
• 2000/76/EC (Waste Incineration
• Directive)
• 2001/80/EC (Large Combustion Plant Directive)
• 78/176/EEC, 82/883/EEC, 92/112/EEC (Titanium Dioxide Directives)

in the form of a single directive. Transposition of the Industrial Emissions Directive into national law of the Member States will entail extensive legislative changes. In Germany this will require amendments of the Federal Immission Control Act (Bundes-Immissionsschutzgesetzes) and related regulations. Moreover, implementation will also affect other environmental compartments such as water and soil, as well as recycling and waste management. Compared to the present legal situation, the amendment will bring about the following changes:

• Inclusion of additional categories and activities,
• Tightening of emission limits for waste incineration and large combustion plants with transi-tion periods,
• Stricter application of "Best Available Techniques (BAT)" in official approval of installations,
• Adaptation of permit requirements within a certain period after publication of new BAT Ref-erence Documents,
• Improved public access to information,
• Tightening of groundwater and soil protection obligations, and
• Specific guidelines for plant inspections.

No Change in Operator Responsibilities in Industrial Parks

It is often read that, according to the directive, an installation requiring a permit can in future have several operators, which would have a substantial impact on the current allocation of operator re-sponsibilities, particularly in industrial parks. Installations belonging to an industrial park user and those belonging to the park operator are often closely interconnected, for example by sharing stor-age facilities for raw materials and for products. This fuels concerns about the difficulty of retaining the principle of operator identity (one plant - one operator). However, on closer scrutiny of the di-rective an all-clear can be given for Germany, i.e. the operator responsibilities currently existing in an industrial park do not have to be modified. Recital 6 of the directive leaves it to Member States to determine the approach for assigning responsibilities to operators of installations, provided that compliance with the directive is ensured. Member States may choose to grant a permit to one re-sponsible operator for each installation or - if there are several operators who operate different parts of an installation - to specify the responsibility of each individual operator.

Where its current legal system provides for only one responsible operator for each installation, a Member State may decide to retain this system. Therefore, the principle of operator identity does not have to be aban-doned in Germany. Thus, if essential parts of an installation - such as a power plant and the asso-ciated flue gas desulphurisation plant - are leased to different companies, then these companies necessarily form a partnership under the German Civil Code which is then the operator of the overall installation. This resolves the question of operator identity. However, the competent surveil-lance authority must pay very close attention as to whom they hold to account; in such a case it must address subsequent orders regarding the installation to the partnership if they do not wish to risk losing a legal challenge merely because they claimed against the wrong operator.

Tightening of Soil Protection

The directive contains elements of the EU soil-protection strategy of 22.09.2006. It is important to push European soil-protection legislation, above all because only nine of the 27 Member States have a national soil protection law. In order to protect the natural asset soil from contamination through operation of an installation by way of an integrated approach, statutory obligations are being introduced that are also new to Germany, which has had its own soil protection legislation in the form of a Federal Soil Protection Act since 1999.
According to the directive, it must be ensured that operation of an installation does not lead to de-terioration of the quality of soil or groundwater. The condition for granting a permit should therefore already include appropriate measures for prevention of contamination of soil and groundwater and regular monitoring of these measures to prevent inadvertent leaks or spills or incidents or accidents during use of the installation. Moreover, monitoring of the soil and groundwater is also necessary to permit early detection of possible contamination of soil and groundwater and adoption of appropriate countermeasures before the contamination spreads.

To meet this goal the installation operator must establish, through a baseline report, the state of soil and groundwater contamination in the permit application. On shutdown of the installation, the baseline report permits determination of how much soil and ground water contamination has been (additionally) caused by operation of the installation. Significant increases in contamination of soil and groundwater must be remedied by, and at the expense of, the last operator.

Recital 23 of the directive requires that the baseline report contain information based on available data on soil and groundwater measurements and historical data regarding previous use of the site. Thus the directive by no means requires presentation of a soil survey with each permit application. Such baseline reports need be submitted with the permit application only if they already exist - for example, numerous industrial sites in the new federal states of Germany were sampled and studied by experts after reunification in connection with the indemnity clause against liability for con-taminated land.

Otherwise, these obligations have not yet been implemented. The Member States are, however, entitled to go beyond these requirements. Here, it will be up to the relevant industry associations to pay very close attention as to how far this obligation is extended. In Germany an applicant is not required to provide soil surveys without legal reason because Section 26 Paragraph 2 of the German Administrative Procedures Act (VwVfG) only requires facts and evidence to be provided which are already known to the applicant. The applicant is in no way obliged to acquire fresh information through extensive and possibly also expensive exploratory measures. In principle, this was also the case for the indemnity granted for contaminated sites in the new federal states of Germany, but the legal situation did not deter the competent authorities from demanding such surveys from applicants right across the board. Because many companies failed to protest against these demands, indemnity granted against liability for contaminated sites led to a wave of self-indictments by owners and investors in the new federal states. Companies should be protected against such escalating demands on transposition of the Directive on Industrial Emissions.

This also applies to the possibly very time-consuming and costly determination of the historical uses of the site of an installation; here too, the applicant is initially only required to provide "available data". As long as the national legislator refrains from introducing more stringent provisions the applicant is under no obligation to furnish a more comprehensive account of the history of the site, if necessary by accessing diverse archives. In Germany one-to-one transposition is currently en-visaged in the 9th Ordinance to the Federal Immission Control Act (ordinance on the approval pro-cedure); no national tightening of the requirements is currently planned. However, companies and industry associations should pay close attention to developments.

Facts for Decision Makers
Compared to the present legal situation, the amendment will bring about some changes:

• Tightening of emission limits for waste incineration and large combustion plants
• with transi-tion periods,
• Stricter application of "Best Available Techniques (BAT)" in official approval of
• installations,
• Adaptation of permit requirements within a certain period after publication of new BAT Reference Documents,
• Improved public access to information,
• Tightening of groundwater and soil protection obligations.