The IPPC Directive

Guidance on Interpretation and Implementation of the IPPC Directive

The aim of these documents is to provide guidance in implementing the IPPC Directive 96/61/EC by suggesting an approach to some questions on how certain provisions of the Directive should be understood. The guidance does not represent an official position of the Commission and cannot be invoked as such in the context of legal proceedings. Final judgements concerning the interpretation of the Directive can only be made by the European Court of Justice.

The guidance was first placed on this website in April 2007 and covers the following issues:

Interpretation of "Installation" and "Operator" for the purposes of the IPPC Directive

Interpretation and determination of capacity under the IPPC Directive

What is the meaning of the specific references to Council Directive 88/609/EEC in Article 4, Article 20(1) and the footnote to Annex I section 1.1?

Should the introductory paragraph 1 of Annex I be understood to be restricted to installations or parts of installations solely used for research, development or testing?

Is the ferro-alloy industry covered by Annex I section 2.5(b)?

How should the term "treatment vat" in Annex I section 2.6 be understood?

In Annex I section 4, what is the meaning of "production on an industrial scale by chemical processing" and of the use of the term "basic" in particular in the expressions "basic organic chemicals" and "basic inorganic chemicals"?

Are enzymes covered by Annex I section 4 or 6.4?

Does Annex I section 4.2 include gaseous oxygen?

Can an installation which produces explosives for the production of military weapons in installations operated by the armed forces be excluded from the IPPC Directive because of Art. 296 of the Treaty establishing the European Community?

Does Annex I section 5.1 include installations mainly used for a purpose other than the treatment of waste but which treat external hazardous waste with a capacity exceeding 10 tonnes per day?

Some landfills covered by Council Directive 1999/31/EC on the landfill of waste also fall within the scope of the IPPC Directive (categories 5.1 and 5.4 in annex I). What are the IPPC provisions competent authorities have to take into account for these landfills, in addition to the requirements of the Landfill Directive?

Are dismantling operations for end of life products such as vehicles and electric and electronic equipment covered by the IPPC Directive?

In Annex I section 6.1, what is the meaning of the term “industrial”?

What is meant by “board” in Annex I activity 6.1(b)?

Is a paper or board production installation which uses fibres (wooden or textile fibres) and washes these fibres before the actual production of paper, and which does not exceed the threshold of category n° 6.1 but exceeds the threshold of category n° 6.2, covered by the Directive?

In Annex I section 6.3, what is meant by “finished product”?

In Annex I section 6.4 (b) and (c), does the term “raw materials” apply to materials (such as flour) that have already been processed but are used as the raw material for the production of a food product?

What is the relation between the IPPC Directive and the Directives listed in Annex II?

What is the meaning of the specific references to Council Directive 88/609/EEC in Article 4, Article 20(1) and the footnote to Annex I section 1.1?

Council Directive 88/609/EEC has now been repealed and replaced by Directive 2001/80/EC. The reference to Directive 88/609/EEC should therefore be understood as a reference to Directive 2001/80/EC.

Directive 2001/80/EC lays down specific requirements relating to certain categories of large combustion plants, including limit values for the emission of sulphur dioxide, nitrogen oxides and dust. Certain derogations from the limit values for sulphur dioxide emissions are allowed in the case of plants operating for limited hours or burning indigenous fuel.

In accordance with the principles outlined in the guidance on the relationship between the IPPC Directive and other Directives, the emission limit values remain in force, together with the associated derogations, as minimum requirements. They do not, however, provide any derogation from the obligations set out in IPPC.

Should the introductory paragraph 1 of Annex I be understood to be restricted to installations or parts of installations solely used for research, development or testing?

It seems highly unlikely that the intention could have been to exclude from the scope of the Directive installations or parts of installations normally used for industrial production simply because they are occasionally used for research, development or testing.

Is the ferro-alloy industry covered by Annex I section 2.5(b)?

The production of ferro-alloys involves alloyage of non-ferrous metals and is therefore covered by Annex I section 2.5(b).

How should the term “treatment vat” in Annex I section 2.6 be understood?

The thresholds for installations for surface treatment of metals and plastics in Annex I section 2.6 are expressed in terms of the volume of the treatment vats. In addition to the main process step, vats are typically used for processes such as soak clean, pickling, degreasing, acid dip, passivation and rinsing. With the exception of rinsing, all of these process steps involve an alteration of the surface as a result of an electrolytic or chemical process, and therefore fall under the definition of “treatment”. Conversely, non-electrolytic, non-chemical surface treatments such as ultrasound, grit blasting, water blasting and annealing are not considered to fall under this definition. For the purposes of determining which installations are covered in this section, the volume of the treatment vats is to be calculated as the total volume of vats used for those process steps involving alteration of the surface as a result of an electrolytic or chemical process.

It should nevertheless be noted that, for those installations covered by the Directive, all steps including rinsing should be regarded as an “associated activity” within the meaning of Article 2(3), in accordance with the guidance on the meaning of "installation".

In Annex I section 4, what is the meaning of "production on an industrial scale by chemical processing" and of the use of the term "basic" in particular in the expressions "basic organic chemicals" and "basic inorganic chemicals"?

“Production on an industrial scale”:

Annex I Section 4 ("chemical industry") contains no quantitative capacity thresholds but only a reference to "production on an industrial scale". The scale of chemical manufacture can vary from a few grams of a highly specialised product to many tonnes of a bulk chemical product, yet both scales may correspond to “industrial scale” for that particular activity. If the activity is carried out for "commercial purposes", it should be considered as production on an industrial scale, even if the material is an intermediate product and therefore not itself traded. By contrast, other activities producing chemicals exclusively for their own consumption - for example domestic, academic or laboratory activities - would not be covered.

Furthermore, "commercial purposes" may be taken generally to imply that the activity is being undertaken principally as a professional business activity. The existence of a form of trading account associated with the activity, or other such indicators, may illustrate the conduct of a business. If such indicators are absent, for example as may be the case in the small-scale production of "artisanal soap", it may be concluded that the activity is not being undertaken for "commercial purposes" and hence is not on an industrial scale.

“Production on an industrial scale by chemical processing”:

The Chapeau of section 4 makes reference to production on an industrial scale by "chemical processing". "Chemical processing" implies that transformation by one or several chemical reactions takes place during the production process. An activity involving only physical processing (for instance simple blending or mixing of substances which do not chemically react, dewatering, dilution, repackaging of acids/bases) would not be covered.

For activities involving essentially physical processing but to a certain degree some chemical reactions (for instance, the mixing of two or more chemical substances to produce a third one which is then immediately sprayed or painted onto a surface, or the situation where a two-component adhesive reacts to provide the actual adhesive material), competent authorities would have to exert their judgment on the basis that only "chemical installations" are covered by section 4 (section 4.5 uses another wording). Such types of activities carried out in places which would not commonly be considered as a chemical installation (for instance for building or repair activities) may be considered not covered by this part of Annex I.

Use of the term "basic":

Section 4 refers at several occasions to the term "basic" in the description of the substances of groups of substances listed in this section.

The term "basic" should be interpreted in a wide sense. It cannot only mean those chemicals requiring further processing, as some of the chemicals listed explicitly in section 4 of Annex I could themselves be final (but still basic) chemical products (for instance synthetic rubbers, dyes and pigments, polymers synthetic fibers) which can undergo further processing but not in the meaning of chemical production.

The term "basic chemicals" would not cover final products which can not be considered as chemical products. For instance, the production of tyres from rubber with other ingredients (such as carbon black, sulphur, textile) involves some form of chemical processing (in particular vulcanization) without producing a "basic chemical product".

As a general remark and in view of the very large number of possible situations (as regards chemical processing, chemical substances or groups of substances produced, types and places of activities), it remains for the competent authorities to make an informed and justified judgment on whether or not a particular installation falls under the scope of the IPPC Directive, using this guidance as a tool to promote consistency and prevent possible abuse in the interpretation of the scope of the Directive as regards section 4 of Annex I.

Many plant health products and pharmaceutical products are enzymes, and these are covered by sections 4.4 and 4.5 respectively. Beyond this, there does not appear to be any sound argument for their general inclusion. In particular, the link between enzyme production and food production (section 6.4) is tenuous, since even though enzymes may be used in such activities they are not themselves food products.

Even though oxygen (O₂) is not explicitly included in the list of gases in 4.2(a), it is clearly a “basic inorganic chemical”. However, this list given is indicative only since it begins with the words “gases, such as…”. The production of oxygen using a chemical process is therefore covered. However, oxygen is usually produced by physically (cryogenically) separating it from air. Since section 4 refers to “production...by chemical processing”, such physical separation from a mixture of gases seems not to be an Annex I activity.

Can an installation which produces explosives for the production of military weapons in installations operated by the armed forces be excluded from the IPPC Directive because of Art. 296 of the Treaty establishing the European Community?

Category n° 4.6 of Annex I of the IPPC Directive covers “Chemical installations for the production of explosives”

The IPPC Directive has no provision which excludes military installations from its scope. In contrast Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards involving dangerous substances excludes those installations[1]. A predecessor of the IPPC Directive, Council Directive 84/360 of 28 June 1984 on the combating of air pollution from industrial plants, also has a provision for the exclusion of industrial plants serving national defence purposes in its Art. 15[2].

Subject to the exemptions allowed under the Directive 2003/35/EC of the European Parliament and of the Council on Public Access to Environmental Information, a consequence of applicability of the IPPC Directive for military installations is that Member States are obliged to give the public access to the permit application if a new installation were to be built or an existing installation were to be substantially changed, amongst the other requirements of the Directive.

However, the Treaty establishing the European Community in Art. 296 includes a general exemption from the Treaty and therefore the whole Community legislation based on it.[3]

“Article 296

1. The provisions of this Treaty shall not preclude the application of the following rules:

(a) no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security;

(b) any Member State may take such measures as it considers necessary for the protection of the essential interests of its security which are connected with the production of or trade in arms, munitions and war material; such measures shall not adversely affect the conditions of competition in the common market regarding products which are not intended for specifically military purposes.

2. The Council may, acting unanimously on a proposal from the Commission, make changes to the list, which it drew up on 15 April 1958, of the products to which the provisions of paragraph 1(b) apply.”

In conclusion, since there are already examples in other Community legislation based on Art. 174 of the Treaty, which explicitly excludes these installations, and the IPPC Directive includes no similar provision, installations for the production of explosives operated by the military are not excluded from the IPPC Directive in general.

There is a clear Community interest that these installations are operated in such a way that a high level of protection of the environment is safeguarded.

Nevertheless, since it could imply requirements which would be in conflict with essential security interests, such as public participation during the permit procedure, an exclusion from these provisions by a Member State would be justified according to Art. 296 (1a).

A general exemption from the complete IPPC Directive would not be appropriate. This is underpinned by the lack of an exclusion provision from the scope of the Directive whereas other Community environmental legislation includes similar provisions explicitly.

All requirements that are deemed non-sensitive from the point of view of national security can be fulfilled. Moreover, confidentiality aspects are not confined to military installations. The competent authorities also need to handle business secrets. Each Member State must manage confidentiality aspects in accordance with the principle of subsidiarity and Directive 2003/04/EC on Public Access to Environmental Information.

Does Annex I section 5.1 include installations mainly used for a purpose other than the treatment of waste but which treat external hazardous waste with a capacity exceeding 10 tonnes per day?

This question concerns co-incineration of waste in combustion installations or production installations such as cement kilns. It should first be noted that the question is only relevant in cases where the installation is not already covered by virtue of another part of Annex I.

Such installations are covered by section 5.1 provided that at least one of the recovery operations R1, R5, R6, R8, R9 defined in Annex II B of Directive 75/442/EEC (now replaced by Directive 2006/12/EC) is carried out. This includes, for example, combustion plants burning hazardous waste and cement kilns that consume more than 10 tonnes per day of hazardous waste as a means to generate energy or for any of the other recovery operations mentioned.

Some landfills covered by Council Directive 1999/31/EC on the landfill of waste also fall within the scope of Council Directive 96/61/EC concerning integrated pollution prevention and control (categories 5.1 and 5.4 in annex I). What are the IPPC provisions competent authorities have to take into account for these landfills, in addition to the requirements of the Landfill Directive?

• According to Art. 18(2), second subparagraph, of the IPPC Directive, “the technical requirements applicable for the landfills … shall be fixed by the Council … in accordance with the procedures laid down in the Treaty.” This provision is mirrored by Art. 1(2) of the Landfill Directive stating that “in respect of the technical characteristics of landfills, this Directive contains, for those landfills to which Directive 96/61/EC is applicable, the relevant technical requirements in order to elaborate in concrete terms the general requirements of that Directive. The relevant requirements of Directive 96/61/EC shall be deemed to be fulfilled if the requirements of this Directive are complied with.”
  
  As a consequence, the requirements laid down in Annex I to the Landfill Directive take the place of the emission limit values, equivalent parameters and technical measures based on best available techniques required by Art. 9 (4) IPPC in the permit conditions.

• The cut-off date for the distinction between “existing” and “new” installations is 31 October 1999 under the IPPC Directive (Art. 2 point 4), and 16 July 2001 under the Landfill Directive (Art. 14). For existing installations, the final date for full compliance is 31 October 2007 under the IPPC Directive (Art. 5), and 16 July 2009 under the Landfill Directive (Art. 14).
  
  As a consequence, the competent authority has to issue an integrated permit to existing landfills covered by the IPPC Directive before 31 October 2007. Full compliance with the requirements of Annex I to the Landfill Directive, however, is only compulsory as of 16 July 2009. “New” landfills authorised after 16 July 2001 have to comply with these requirements from the outset. In cases of changes to a landfill, it is up to the competent authority to decide if the change is “substantial” or not, in accordance with Article 12 IPPC. Whereas any change triggers a permit update under the landfill Directive, the additional IPPC requirements (e.g. in terms of public participation) would only apply to a “substantial” change in the meaning of the IPPC Directive.

Article 13(1) IPPC Directive requires competent authorities to periodically reconsider and, where necessary, update permit conditions. This obligation is independent from pollution levels, substantial changes in best available techniques, safety requirements or new legislative provisions. No corresponding provision exists in the Landfill Directive. Any landfill also covered by the IPPC Directive must be made subject to such periodic reconsideration.

• Article 6 IPPC specifies information that must be included in the application for a permit. Much, but not all, of this information is also required under the Landfill Directive (Art. 7). On the other hand, some requirements are specific to the Landfill Directive (see Article 7(i)).
  
  It should be noted that the IPPC Directive requires information on the sources of emissions from the installation as well as the nature and quantities of foreseeable emissions into each medium and identification of significant effects on the environment (i.e. also for non-EIA projects).
  
  An application for an IPPC landfill has to comply with both the provisions of Article 6 IPPC and Article 7 of the Landfill Directive.
  
  
• Article 15 IPPC requires that permit applications for new or substantially changed installations are made available to the public. The public is given the right to comment on them before the competent authority reaches its decision. The decision, a copy of the permit and of any permit updates as well as the results of release monitoring must be made available to the public. No corresponding provision exists in the Landfill Directive.
  
  Any landfill also covered by the IPPC Directive must be made subject to public participation and information as outlined above.
  
  
• Article 17 IPPC requires a transboundary information exchange where the operation of an IPPC installation is likely to have significant negative effects on the environment of another Member State. No corresponding provision exists in the Landfill Directive.
  
  In principle, any landfill also covered by the IPPC Directive should be subject to this information exchange. In practice, however, a landfill likely to have significant negative effects on another Member State should not obtain a permit according to the Landfill Directive (Article 8(a)(i) in conjunction with Annex I). Article 12 Landfill Directive providing for control and monitoring programmes as well as for the notification of any significant adverse effect constitutes an additional safeguard in this respect.
  
  It is therefore unlikely that a Member State in whose territory the permit application was submitted finds itself under the obligation to forward the information to another Member State. However, a neighbouring Member State might feel itself to be significantly affected and request information according to Article 17 IPPC.
  
  
• Finally it is noteworthy that the reporting periods of the two Directives differ. Under the IPPC Directive, the first round of reporting was due in 2003, covering the years 2000 to 2002. The first report under the Landfill Directive was due in 2004 covering the period from 16 July 2001 to the end of 2003.
  
  
• IPPC landfills are also subject to regular reporting of emission data according to Commission Decision 2000/479/EC on the implementation of a European pollutant emission register (EPER), and in the future under the European Pollutant Release and Transfer Register.