These FAQ are intended to assist stakeholders by developing the wording and intent of the Industrial Emissions Directive (IED) 2010/75/EU so that Member States transpose and implement the Directive in a consistent manner. Note that the FAQ:
|IED II.1 - When should a 'baseline report' as referred to in article 22 be prepared and submitted to the competent authority?|
The exact timing of when a baseline report is required varies according to the type of installation concerned. In this context three categories of installations must be distinguished:
|IED II.2 - When do BAT conclusions adopted under Article 13(5) of the IED apply?|
1. New installations
For new installations the provisions of the IED apply from 7 January 2013.
1.1. For setting permit conditions, all relevant BAT conclusions adopted in accordance with Article 13(5) and published before the permit is issued shall be applied for the purpose of Articles 14, 15 and 16 of the IED and the installation shall immediately comply with those conditions.
1.2. In accordance with Article 21(3) of the IED, the application of BAT conclusions adopted in accordance with Article 13(5) and published after the permit is issued shall be ensured, by way of reconsideration and, if necessary, update of the permit conditions, within 4 years of publication of BAT conclusions related to the main activity of the installation. The expression "within" provides explicitly that the competent authorities shall be entitled to apply those BAT conclusions before the 4-year period expires.
In accordance with Article 13(7)2 of the IED, as long as the application of BAT conclusions adopted in accordance with Article 13(5) cannot be ensured, the conclusions on BAT from any relevant BREFs adopted under the IPPC Directive shall apply as BAT conclusions (with the exception of their application under Article 15(3) and (4)).
2. Existing installations
For existing installations, the provisions listed in Article 80(1) of the IED apply from 7 January 2014 for activities previously covered by the IPPC Directive. For activities newly covered by the IED, the equivalent deadline is 7 July 2015.
2.1. In accordance with Article 21(3) of the IED, the application of BAT conclusions adopted in accordance with Article 13(5) and published before the above dates shall be ensured for the purpose of Articles 14, 15 and 16 of the IED, by way of reconsideration and, if necessary, update of the permit conditions, within 4 years of publication of BAT conclusions related to the main activity of the installation. The expression "within" provides explicitly that the competent authorities shall be entitled to apply those BAT conclusions before the 4-year period expires.
In accordance with Article 13(7) of the IED, after the above dates and as long as the application of BAT conclusions adopted in accordance with Article 13(5) cannot be ensured, the conclusions on BAT from any relevant BREFs adopted under the IPPC Directive shall apply as BAT conclusions (with the exception of their application under Article 15(3) and (4)).
2.2. The rules for application of BAT conclusions adopted in accordance with Article 13(5) and published after the above dates are the same as described in point 2.1.
|IED II.3 - When should BAT conclusions adopted under Article 13(5) be complied with?|
According to the first subparagraph of Article 21(3):
"Within 4 years of publication of decisions on BAT conclusions in accordance with Article 13(5) relating to the main activity of an installation, the competent authority shall ensure that:
(a) all the permit conditions for the installation concerned are reconsidered and, if necessary, updated to ensure compliance with this Directive, in particular, with Article 15(3) and (4),where applicable;
(b) the installation complies with those permit conditions."
The above provision implies not only that permit conditions are reconsidered and, if necessary, updated to ensure compliance with the BAT conclusions within 4 years of the publication thereof, but also that the operation of the installation complies with those updated permit conditions.
If the competent authority foresees that compliance with the updated permit conditions will take more than 4 years from publication of the BAT conclusions, this shall be seen in the context of Article 15(4) and all conditions listed therein shall be fulfilled.
This approach reflects recital (22): "In specific cases where permit reconsideration and updating identifies that a longer period than 4 years after the publication of a decision on BAT conclusions might be needed to introduce new best available techniques, competent authorities may set a longer time period in permit conditions where this is justified on the basis of the criteria laid down in this Directive."
|IED III.1 - Should Transitional National Plans (TNPs) under Article 32 of the IED be subject to a Strategic Environmental Assessment (SEA) pursuant to the SEA Directive 2001/42/EC (SEAD) and, if so, what are the consequences?
REVISED VERSION OF APRIL 2013
1. The applicability of the SEAD to a TNP depends on the content of the TNP and the type of measures included in it.
TNPs are "plans/programmes" as defined in Article 2(a) of the SEAD as they are applicable to large combustion plants (LCPs) which fall under the 'industry' or 'energy' sectors described in SEAD Article 3(2)(a). The SEAD applies to TNPs insofar as they "set the framework for the future development consent of projects listed in Annexes I and II" to the Environmental Impact Assessment Directive 2011/92/EU (EIA Directive) (Article 3(2)(a) of the SEAD). With regard to this condition, it is necessary to examine the content and purpose of the TNP.
Each TNP will contain measures or conditions which will guide, and therefore set the framework for the way the consenting authority decides on applications for development consent. Given that LCPs are listed in Annexes I and II of the EIA Directive, it is necessary to verify whether the measures included in the TNP involve any "construction works" or "interventions in the natural surroundings and landscape" according to the definition of "project" under Article 1(2)(a) of the EIA Directive.
Consequently, Article 3(2)(a) of the SEAD would not apply to a TNP including only measures which do not involve any "construction works" and do not require "development consent" (e.g. closure of a plant or reduction in operating hours).
In addition, if the TNP only refers to small areas at local level or if it introduces minor modifications to existing plans, Article 3(3) of the SEAD could apply. In such cases, a screening would be required to verify the significance of the effects (positive or negative) and determine the need for a full SEA.
The above clarification is without prejudice to the application of Article 3(2)(b) of the SEAD (requiring an environmental assessment to be carried out for all plans and programmes, which, in view of the likely effect on sites, have been determined to require an assessment pursuant to Article 6 or 7 of the Habitats Directive 92/43/EEC) and of Article 7 of the Aarhus Convention (Public participation concerning plans, programmes and policies relating to the environment).
2. As regards the interaction between the preparation of TNPs and the SEA, the timing and sequence of the various steps depend on the national procedures applicable to the preparation, submission and adoption of TNPs and the way in which the SEAD is transposed at national level. To avoid duplication of procedures, it may be possible to combine the SEA process with the adoption of the national laws regarding the implementation of the TNP.
3. Application of the SEAD may lead to changes in the TNP since Member States have to take into account the environmental report and the opinions expressed during consultation with the public and the environmental authorities (Article 8 of the SEAD). In addition, if the SEA shows that the implementation of the TNP is likely to have significant effects on the environment, monitoring measures should be foreseen (Article 10 of the SEAD).
In accordance with Article 32(6) of the IED, the national authorities are obliged to inform the Commission of any changes to a TNP made after the decision of the Commission (raising or not raising objections to that TNP).
|IED III.2 - Can combustion plants be part of a 'Transitional National Plan' (article 32) up to 2020 and, when the TNP finishes, still apply the less stringent emission limit values in Annex V (Part 1) for plants which do not operate more than 1 500 operating hours per year as a rolling average over a period of 5 years?|
Yes. From 1 July 2020, plants that were subject to a TNP will have to meet at least the emission limit values set out in Annex V as required by Article 30(2). This includes the possibility to apply less strict emission limit values for plants that are not used more than 1500 operating hours per year (calculated as a rolling average over a period of 5 years). For such plants that were subject to a TNP before, the calculation of the number of operating hours as a rolling average over a period of 5 years has to start on the date when the plant is no longer subject to the TNP (1 July 2020 the latest). This same date shall be the start of the Member State's annual reports to the Commission for the purposes of Article 72(4).
For further information see Commission Implementing Decision 2012/115/EU (laying down rules concerning transitional national plans).
|IED III.3 - How should combustion plants covered by the time limited derogations under Articles 33, 34 and 35 of the IED be regulated when those derogations come to an end?|
Operators of combustion plants that opt for the 'limited life time derogation' (article 33) must declare not to operate the plant for more than 17,500 operating hours after 1 January 2016 and not beyond 31 December 2023. Such plants have the choice to stop operating after having reached the maximum number of operating hours or otherwise before that date or, if the operator intends to continue operation, to meet the emission limit values set out in Annex V, part 2 (as they will need a new permit to allow further operation).
Those combustion plants being subject to article 34 ('small isolated system') must, from 1 January 2020, fulfil the Emission Limit Values (ELVs) in Annex V, part 1.
Those combustion plants subject to article 35 ('district heating plants') must, from 1January 2023, fulfil the ELVs set out in Annex V, part 1.
It should be noted that Annex V, part 1 includes less stringent limit values for plants operating less than 1500 hours per year as a rolling average over 5 years, while Annex V, part 2 does not include specific limit values for such plants.
|IED III.4 - Can the Chapter III flexibilities be used by part of a combustion plant whilst other parts of the same plant apply the Article 30 ELVs?|
The provisions of article 32 (TNP) and 33 (limited life time derogation) can only apply to combustion plants as a whole (and not parts thereof).
For further information see Commission Implementing Decision 2012/115/EU (laying down rules concerning transitional national plans).
|IED III.5 - What is the intent of article 42(1) which excludes from scope certain gasification and pyrolysis plants?|
This Article should be read taking into account the judgment of the European Court of Justice in the case C-209/09 (second judgment in the preliminary ruling concerning Lahti Energia, Finland).
This ruling makes clear that a gas, obtained by the gasification of a (solid or liquid) waste, and which is subsequently purified to such an extent that it has properties "similar to a fossil fuel", would need to be considered as a product and no longer as a waste. The firing of such a gas in a power plant could not be considered as incineration or co-incineration of waste.
If the gas is not purified to the extent that is has properties similar to a fossil fuel and is burned subsequently in a power plant, the combination of gasification / combustion will be considered as a co-incineration plant.
Article 42(1) clarifies that the quality of the syngas following possible purification should be assessed in relation to the potential emissions that could result from its combustion. It will be up to the competent authorities issuing the permit for the plant to consider thoroughly whether the produced gas is sufficiently purified to fulfil the criteria set out in this article.
|IED III.6 - What should be the interpretation of the terms “useful heat”, “public network” and “district heating” in Article 35(1)(c).|
The intention of article 35 of 2010/75/EU is to provide certain district heating plants with the flexibility to comply only from 1 January 2023 on (instead of 1 January 2016) with the emission limit values (article 30(2)) and desulphurisation rates (article 31) set out in Annex V. This flexibility is conditional on meeting the conditions laid out in sub-paragraphs a) to d) of article 35(1).
Article 35(1)(c) says in full that: "at least 50 % of the useful heat production of the plant, as a rolling average over a period of 5 years, is delivered in the form of steam or hot water to a public network for district heating". These phrases are understood to mean:
- 'useful heat': The reference to 'useful heat production' recognises that part of the heat output from combustion plants may be used for internal purposes and therefore will be unavailable for beneficial use by the end users.
- 'public network': The intention of the wording 'public network' is to make a distinction from 'private' networks. In a 'private network' industrial operators choose to meet their own electricity and/or heating needs. In private networks the use of electricity and heat is solely within the boundary of the site and there is no wider public utility.
A 'public network' for district heating therefore requires that the network does not (solely) serve the needs of private companies owning the plant or network.
- 'district heating': This term is not defined in the IED, but we can refer to Article 2(g) of Directive 2009/28/EC (on the promotion of the use of energy from renewable sources): which says that "‘district heating’ or ‘district cooling’ means the distribution of thermal energy in the form of steam, hot water or chilled liquids, from a central source of production through a network to multiple buildings or sites, for the use of space or process heating or cooling".
District heating therefore should be understood as implying the beneficial use of heat for space or water heating beyond the site boundary. This could include e.g. the use by individual homes and blocks of flats; hospitals, churches, schools, shops, markets, companies which use network heat for their offices or production halls.
In order to assess whether at least 50% of the useful heat production is delivered to a public network for district heating, one needs to consider the ratio of the amount of steam and hot water heat delivery to the public network for district heating, to the total amount of useful heat produced by the plant concerned.
|IED III.7 - How to apply the aggregation rules for activity 1.1. of Annex I and under Article 29 (Chapter III) of IED?|
Annex I, activity 1.1
The list of activities in Annex I, which include in many cases capacity thresholds, defines the scope of Chapter II (see Article 10). The chapeau provision of Annex I contains a general aggregation rule for all activities:
"Where several activities falling under the same activity description containing a threshold are operated in the same installation, the capacities of such activities are added together. For waste management activities, this calculation shall apply at the level of activities 5.1, 5.3(a) and 5.3(b)."
This provision aims to ensure equal treatment of comparable installations and to prevent artificial splitting of installations.
For activity 1.1 "Combustion of fuels in installations with a total rated thermal input of 50 MW or more", this general aggregation rule means that all combustion activities within an installation need to be considered, i.e. there is no threshold at unit level. If the total rated thermal input of all those combustion activities within the installation is 50 MW or more, then the whole installation falls under the scope of Chapter II.
Combustion units totalling less than 50 MW may also be covered by Chapter II as directly associated activities if they are part of an installation which operates another Annex I activity, e.g. a food processing plant, textile plant.
Chapter III contains the specific provisions for large combustion plants, in particular with reference to the EU-wide emission limit values and monitoring requirements laid down in Annex V. For the purposes of Chapter III, Article 29 lays down specific aggregation rules based on the "common stack" approach.
Any combination of two or more separate combustion plants belonging to the following categories shall be considered as a single combustion plant and, for the purpose of calculating the total rated thermal input, their capacities shall be added together:
a) the waste gases of the separate combustion plants are discharged through a common stack;
b) the separate combustion plants have been granted a permit for the first time on or after 1 July 1987, or the operators have submitted a complete permit application on or after that date, and they are installed in such a way that, taking technical and economic factors into account, their waste gases could in the judgment of the competent authority, be discharged through a common stack.
For the purpose of calculating the total rated thermal input of a combination of combustion plants, individual combustion plants with a rated thermal input below 15 MW shall not be considered. Where that total rated thermal input is 50 MW or more, the entire combustion plant is covered by Chapter III.
It should be noted that the scope of activity 1.1 is broader than the combustion plants covered by Chapter III, due to:
Further explanation of this issue can be found in the following presentation that was given to the Industrial Emissions Expert Group (IEEG) on 4 June 2012.
|IED IV.1 - The term 'existing waste co-incineration plant' is undefined. How should it be interpreted for the understanding of Annex VI, part 6, section 2.5 (continuous measurements) and Annex VI, part 4 (determination of emission limit values for co-incineration of waste)?|
For the purposes of the above-mentioned sections, the term 'existing waste co-incineration plant' should be interpreted in the same way as the definition of 'existing waste incineration plant' in part 1(a) of Annex VI.
|IED IV.2 - Article 46(4) references incorrectly to Annex VI Part 6 point 2 (which deals with 'air polluting substances')?|
Yes there is an error. The reference should be to Annex VI Part 6 point 3 ('water polluting substances').
|IED V.1 - The Annex VII special provisions apply to the manufacture of pharmaceutical products (Part 1(8)). Is the manufacture of active ingredients for pharmaceutical products captured by virtue of the reference to the 'manufacture of intermediate products'?|
According to Article 3(15) of Regulation (EC) No 1907/2006 ("REACH") an "intermediate" means a substance that is manufactured for and consumed in or used for chemical processing in order to be transformed into another substance.
An active ingredient of a pharmaceutical product is not transformed into another substance in the further finishing process (e.g. addition of coagulating agents, starch, sugar, etc) resulting in the final pharmaceutical product. Therefore, the active ingredient can not be regarded as an intermediate product, but has to be regarded as a pharmaceutical product.
The manufacture of an active ingredient, as well as the manufacture of the final pharmaceutical product (in the form of pills, pastilles, syrup, suppositories, etc), either together or separately, falls within the scope of Annex VII.
|IED AI(5)1 - Does IED cover installations carrying out the dismantling of end-of-life vehicles (ELV) and the processing of waste electrical and electronic equipment (WEEE)?|
Annex I to Commission Decision 2000/532/EC of 3 May 2000 establishing a list of waste determines the classification of ELV, waste from the dismantling of ELV, WEEE and components from WEEE as hazardous or as non-hazardous waste (sections 16.01 and 16.02). Furthermore, the provisions of Articles 3(2) and 7 and of Annex III of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste are to be taken into account for this purpose.
Whether ELV dismantling and WEEE processing are activities covered by Annex I, point 5, of the IED, depends on the classification of such waste as hazardous or non-hazardous, on the nature of the waste treatment activities and on the capacity of the installation concerned, as follows:
- The disposal and/or recovery of hazardous waste is covered by the IED if it involves one or several of the activities listed under point 5.1 of Annex I and the installation capacity exceeds 10 tonnes per day.
- The disposal of non-hazardous waste is covered by the IED if it involves one or several of the activities listed under point 5.3(a) of Annex I and the installation capacity exceeds 50 tonnes per day.
- The recovery, or a mix of recovery and disposal, of non-hazardous waste is covered by the IED if it involves one or several of the activities listed under point 5.3(b) of Annex I and the installation capacity exceeds 75 tonnes per day.
|IED AI(5)2 - How should the terms "pending any of the activities listed in points 5.1, 5.2, 5.4 and 5.6" in point 5.5 of Annex I be interpreted?|
The activity description in point 5.5 is concerned with the temporary storage of hazardous waste with a total capacity exceeding 50 tonnes and which is performed prior to any of the waste treatment activities listed in points 5.1, 5.2, 5.4 or 5.6.
The activity is covered irrespective of whether the subsequent waste treatment activities take place on the same site as the temporary storage. It is also irrelevant whether those subsequent activities exceed the capacity thresholds mentioned under the points 5.1, 5.2, 5.4 and 5.6.
Point 5.5 does not cover the temporary storage of hazardous waste that falls under point 5.4 (landfill), nor the temporary storage, pending collection, on the site where the waste is generated.
|IED AI(6)1 - In activity description 6.4 (b) (ii), why are there two different thresholds?|
This activity description defines different production thresholds for different production profiles.