Rechtsanwältin, Senior Associate
Out-Law News | 10 Jul 2013 | 12:25 pm | 2 min. read
The European Integrated Pollution Prevention and Control Bureau (IPPC) is consulting on new guidance (884-page / 12.2MB PDF) in a BREF document for LCPs which sets out Best Available Techniques (BAT) for controlling pollution and maximising energy efficiency at new and existing plants. The consultation will remain open until the end of September and sets out BAT associated emission levels that are significantly higher than those in the previous edition.
The BATs in the new BREF for LCPs will ultimately become binding under the Industrial Emissions Directive (IED).
Under the IED, new LCPs with thermal input 50MW of generating capacity will, going forward, have to meet stricter Emission Limit Values (ELVs) for nitrogen, sulphur dioxides and other airborne pollutants. There are varying compliance deadlines for existing installations and new LCPs to comply with the stricter limits under the IED.
Among the stricter limitations placed on coal-fired 50-100MW LCPs in the draft BREF is a sulphur dioxide emissions range of 150-200mg per cubic metre, against the IED's 400mg/cubic metre limit. The largest coal-fired LCPs, with thermal input over 300MW, are limited to 65-180mg/cubic metre in the draft BREF, against a 200mg/cubic metre limit in the IED.
Environment and energy law expert Fiona Ross of Pinsent Masons, the law firm behind Out-Law.com, said that although the IED set its own emissions limits, those set out in the BREF would "take precedence".
"This is because one of the key facets of the IED is to tighten up the application of BAT in industrial operations, with an obligation on member states to ensure that operators of relevant installations apply BAT," she said.
"In particular, the IED provides for the calculation and setting of ELVs in permits. It states that limits must be set so that when operating normally the installation does not emit higher levels of pollutants than are specified in the relevant BAT Conclusions for that type of installation. This means that the BAT Conclusions in the recently published BREF for LCPs would, if adopted, apply over the lower ELVs in the directive itself," she said.
BAT is an evolving concept and refers to the most cost-effective techniques available at the time to achieve a high level of environmental protection. BAT Conclusions are determined at European level, to ensure consistent standards across the EU. Under the IED, BAT Conclusions are now used as the central EU reference point for determining and granting permits to industrial facilities. Although national regulators retain some flexibility, the new regime makes it harder for them to deviate from the BAT requirements.
"The scope for derogating from emissions limits contained in a BREF is limited to situations where the geographical location, local environmental conditions or technical characteristics of the installation render compliance with the emissions limits disproportionately expensive in light of the environmental benefits," Ross said.
"Where such a derogation has been made, the national regulator must justify the setting of less stringent limits by providing reasons in an annex to the permit itself, and must in any even ensure that no significant pollution is caused as a result of the lower limits being applied. With regulators required to follow this process and justify their reasoning, it is anticipated that derogations from emissions limits in BAT Conclusions will be few and far between as member states seek to minimise the risk of infraction proceedings being raised for non-compliance," she said.
"It will be interesting to see whether the limits currently proposed are adopted, as industry comment already appears split over whether the limits are achievable within reasonably economic margins or are simply unattainable for existing plants," she said.
Rechtsanwältin, Senior Associate