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Environmental Assessment

"IMPEL report on the interrelationship between IPPC, EIA, SEVESO Directives and EMAS Regulation"-
Summary

Please find the full English text Interrelationship between IPPC, EIA, SEVESO and EMAS in PDF format.

INTRODUCTION

Why this report?

1. On 24 September 1996, the Council adopted Directive 96/61/EC concerning integrated pollution prevention and control (the IPPC Directive). Ten weeks later, on 9 December 1996, the adoption of Council Directive 96/82/EC on the control of major-accident hazards involving dangerous substances (the Seveso II Directive) followed. Finally, on 3 March 1997, the Council adopted Directive 97/11/EC amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (the EIA Directive).

2. Member States, therefore, had to transpose three major instruments into their national legislation, within two to three years. In addition, the IPPC Directive introduced a system that was new to many Member States. Its characteristics and the obligation to co-ordinate the permitting procedures in order to issue - ideally - one single permit for the operation of an installation were new. This theme of "integration" proved to be an incentive to have an overall "integrative" approach to the transposition of the three instruments.

3. In considering how to facilitate the practical application of the IPPC Directive, some Member States have also taken into account Council Regulation No 1836/93 allowing voluntary participation by companies in the industrial sector in a Community eco-management and audit scheme (EMAS).

4. The competent authorities in charge of transposition, implementation and application of the instruments found themselves confronted with various questions: how do the four instruments fit together? Are their provisions consistent? What kind of information is requested from the developer or the operator when the installation falls into the scope of two or three Directives? How should the obligation to inform and to involve the public be dealt with? Is it possible to have a single permitting procedure which is consistent with the requirements of all three Directives? Finally, what role can EMAS play in this context?

5. This report presents the results of the discussion amongst the participants of the IMPEL project: "Interrelationship between EIA, IPPC, Seveso Directives and EMAS Regulation" with regard to the issues above. The report has been compiled in a series of four workshops organised by Italy as ‘lead country’ in the years 1997/98.

The consistency of IPPC, EIA, Seveso and EMAS

6. Concern was raised about the alleged "inconsistency" of the four instruments and a general remark may be necessary here.

7. The three Directives and the Regulation reflect different stages in the development of ‘green mindedness’ in the Community and different political preoccupations. The Seveso II and EIA Directives are based on the experiences of the early 1980s. Their goals and scope are different and the definitions used are not identical. However, the drafting of one instrument was not done without considering the others. As the discussion of the three Directives took place more or less in parallel, all Community institutions were able to check the texts for unwanted discrepancies. As a result - and this is important - they do not contradict each other, and it is possible for Member States to implement the four instruments. Some points, however, remain to be clarified.

The key characteristics of the four instruments

8. The EIA Directive covers a broad range of activities ranging from industrial to infrastructure projects. It introduces procedural elements to be followed such as the provision of an environmental impact statement and consultation with the public and environmental authorities within the framework of development consent procedures for the activities covered. Member States may regulate the EIA procedure as a permitting procedure or by adding it to existing permitting procedures under other pieces of Community (or national) legislation. The results of the EIA procedure have to be taken into consideration in the development consent procedure.

9. The IPPC Directive focuses on the environmental impact of the operation of new and existing installations. It does not cover infrastructure projects. Thresholds for installations sometimes differ from those used in the EIA Directive. The control of emissions to air, water and soil is complemented by provisions concerning energy use, waste flows and accident prevention. Installations under this Directive need an integrated permit and are subject to ongoing monitoring and updating of the permit conditions.

10. The aim of the Seveso II Directive is the prevention of major accidents which involve dangerous substances and the limitation of their consequences for man and the environment. "Seveso establishments" are subject to continuous inspection by competent authorities.

11. EMAS is a voluntary scheme designed to promote continuous improvements of the environmental performance and compliance with all relevant regulatory requirements regarding the environment. To achieve this aim, industrial sites are required to use an environmental management system to monitor efficiency and to report on their achievements regarding environmental performance. EMAS is targeted at the industrial sector at present. In the future, it will also be applicable to other sectors.

12. The report highlights the possibilities of using the synergies between the four instruments, mainly concerning the:

- field of application of the instrument and the determination of the application of the different instruments;

- required environmental information or documentation;

- participation of the public, various authorities and, in transboundary cases, neighbour Member states;

- decisions required and environmental management.

What can you find in this report?

• Table 1 is a summary of the key provisions which are common to the four instruments. It allows, for example, rapid identification of the relevant articles on information requirements, the involvement of the public and monitoring.

• The first section is a more detailed comparison of the texts of the four instruments. It should make reading the legal texts easier.

• The second section lists the installations falling within the scope of the instruments. It is intended to give an indication of whether or not a given installation has to comply with the provisions of one or more of the Directives, and where EMAS is relevant.

• The third section sets out the experience gained so far by Member States in the transposition and implementation of the EIA, IPPC, Seveso Directives and the EMAS Regulation.

• Last, but not least, IMPEL tries to draw some Conclusions (page *) for efficient implementation of the four instruments and on enhanced consistency between them, wherever relevant.

• A glossary is included (page 11).

CONCLUSIONS

The field of application and determination of the application of the different instruments

1. The field of application of the EIA Directive is very broad and essentially covers all the categories of project likely to have significant effects on the environment. The IPPC Directive applies to industrial activities (e.g. in energy and waste sectors) and some agricultural activities. The Seveso Directive applies to establishments where dangerous substances are present. All these Directives apply to new projects and, where required to existing activities including changes and extensions.

2. The EMAS regulation is a voluntary instrument. It applies to operational industrial activities. It may be extended to non-industrial sectors by national legislation.

3. The field of application of the instruments is indicated for the EIA Directive by Annexes I and II, for the IPPC Directive by Annex I, for the Seveso Directive by Annex I and for the EMAS Regulation by NACE Code, section C and D, with the additions mentioned in Article 2 lit i).

4. The categories of projects listed in the EIA and IPPC annexes overlap to a large degree. The EIA Directive generally covers, in Annexes I and II, all the Annex I IPPC categories of project, except for categories 3.1 (lime links), 6.7 and 6.8. It is more difficult to identify the overlap of projects between the Seveso Directive and the EIA and IPPC Directives. However, the analysis presented in chapter 3 shows that it is likely that ‘Seveso projects’ are included in the EIA and IPPC Annexes.

5. Annex II EIA projects must be subject to a screening procedure by Member States to determine whether the Directive applies to them. Where IPPC projects or Seveso activities fall within the scope of the EIA Directive, a screening procedure under article 4.2 of the EIA Directive is required.

6. The question of the application of the EIA, IPPC and Seveso Directives in the case of changes or extensions of existing projects needs close scrutiny since a range of discretion is left to Member States. Annex III of the EIA Directive covers aspects to be taken into account in the determination of whether EIA is required for Annex II projects which includes changes and extensions to existing projects. Neither the IPPC or Seveso Directive have such an annex. However, both directives refer to the significance of the effects of the proposed change on the environment. The criteria in Annex III of the EIA Directive can be a useful tool to screen substantial changes under the IPPC Directive and to screen modifications under the Seveso Directive. Where cases fall within the scope of two or three Directives, a single screening phase will contribute to the efficiency of the decision making procedure.

7. Different approaches are used by Member States to transpose the different instruments, mainly because there are different national legal systems. Member States may choose joint transposition, but there is no obligation to do so. Of course, where joint transposition of the instruments is undertaken at a national level, the most stringent provisions must still be met.

8. As regards the EIA and IPPC Directives, Article 2a of Directive 97/11/EC states that Member States may provide for a single procedure to fulfil the requirements of both of them. In this context, Member States may provide for a single list of projects for mandatory EIA which consists of Annexes I to the EIA Directive and all or some of the projects in Annex I of the IPPC Directive. On the other hand, it is possible to apply the EIA and IPPC provisions separately and a project may, therefore, be subject to both procedures. In these cases, the procedures can happen one after another, but the results of the EIA procedure shall be taken into account for the purpose of granting the permit under the IPPC Directive. In these cases, the application of an EIA procedure to IPPC projects may be useful but it is not a legal obligation. Another possible approach to co-ordinating the EIA and IPPC procedures is to provide for a common phase of public participation with the other procedural phases remaining separate.

9. As regards the EIA and Seveso Directives, where a new project is a Seveso activity and it also falls within the scope of the EIA Directive, the requirements of the EIA Directive also apply. In these cases, Member States may provide for a single or co-ordinated procedure which must fulfil the requirements of both Directives. Naturally, the same principle will apply with reference to all the three Directives.

10. Member States may provide for a unique or co-ordinated procedure under the EIA, IPPC and Seveso Directives and also for a single list of projects. It may be argued that in accordance with part 1 of the screening criteria in Annex Ill of the EIA Directive, IPPC projects should require an EIA procedure because they are considered to be large installations in EU legislation. Others may point out that the size of project is only one of the screening criteria in Annex III and that the test for EIA is the likelihood of significant environmental effects.

11. As regards the IPPC and Seveso Directives, the Seveso procedure may be integrated into the IPPC procedure where article 9.4 of Seveso Directive applies and similarly in case of modification under article 10 of Seveso Directive, where Member States have to decide whether to prohibit the bringing into use or the continued use of the establishment concerned. In these cases, a new permit under the IPPC Directive may be required.

12. The environmental information produced as a result of the EMAS process can be helpful in appraising the significance of modifications to existing installations and in determining the application of the other instruments.

Required environmental information or documentation

13. Environmental reports, information or documentation are required to be provided by the applicant in all four instruments. Therefore, synergies should be used wherever possible and links should be established to avoid duplication (e.g. article 6.2 of the IPPC Directive). The point of time at which the information has to be presented is therefore important. One way to avoid duplication is to co-ordinate the stages of the procedures where the submission of information is required and make sure there is exchange of information and documentation between different authorities (e.g. by conferences of the authorities concerned).

14. The environmental reports or documentation of the EIA and IPPC procedures are focused on environmental effects and measures for prevention and reduction of these effects, whilst the Seveso reports are focused on the risk analysis and safety conditions (this is also an EIA and IPPC objective if the project has such characteristics). EMAS statements are principally focused on improvements of environmental performance by describing the current environmental conditions and the operational aspects required at the site level to deliver continuous improvements in environmental performance.

15. EIA, IPPC and Seveso reports are focused on aspects of the design, construction and operational phases. EMAS statements are focused on operational phases of management.

16. The differences between the different instruments relate to their different aims and objectives. The factors to be considered in assessing the impacts on the environment in an environmental report required by the EIA Directive are listed. In comparison with the EIA Directive, the IPPC Directive gives more emphasis to the Best Available Techniques and technical processes, (i.e. it refers to the effects of the emissions on the environment to be protected as a whole) whereas Seveso focuses on the risks (to limit the consequences of major accidents for man and the environment). In this context the scope of the information required under the EIA procedure is the widest and is largely comprehensive of the documentation required under the other Directives. Given these considerations, if Member States intend to provide a unique or a co-ordinated procedure, the documentation required for the EIA Directive could be considered as a basis which will eventually be supplemented by other information required by the other instruments. A voluntary scoping phase, which is only a requirement of the EIA Directive, can be a useful tool for the other instruments, especially for the information required by the IPPC and Seveso Directives.

17. Problems exist in preparing, handling and comparing information used in the different instruments since different ways of classifying the information are used. The transformation of data from one format to another can create problems and the process is very time-consuming. A uniform system to classify installations, activities and substances would prevent these difficulties.

Participation: public/authorities and transboundary/Member States

18. Public participation is required in all four instruments but with different characteristics and importance. In the EIA Directive, the term 'public' as well as the term 'public concerned' is used. The determination of the 'public concerned' is left to the Member states. The ‘public’ has to be informed and the ‘public concerned’ consulted before development consent is granted. In contrast, the IPPC Directive only uses the term 'public' and the obligation is only to consider their comments before the decision is made. In this context it is unclear whether this difference is intended to require a different group of the public participating in the procedures or not. The Seveso Directive also uses the term 'public'. The involvement of the public is related to the different measures to be taken, e.g. consultation is provided for external emergency plans but the only information provided is that concerning the safety report. The EMAS regulation uses the term 'public' on several occasions: the public must be informed about the content and objective of the EMAS scheme, the sites must provide the public with information and enter into a dialogue with them about it. The Regulation also gives interested parties the right to submit observations to the competent body concerning the registration, suspension and deletion of sites.

19. The public and the public concerned should be defined taking into account the Aarhus Convention signed in June 1998.

20. Where Member States intend to provide a common phase of public participation, the environmental information to be provided must comply with the requirements of the three Directives as already noted in paragraphs 9 and 16. The documentation required for the EIA Directive could be considered as a basis to be supplemented by other information required by the other Directives.

21. The provision of information to the public should be carefully timed where joint transposition is adopted, as in any coordinated approach.

22. Information exchange between the Member States for transboundary impacts is required in the EIA, IPPC and Seveso Directives. Consultation is required under the EIA and IPPC procedures. In the EIA and IPPC Directives, the 'public' of the Member State likely to be affected also has to be involved.

23. Transboundary obligations under the three instruments (EIA, IPPC and SEVESO) may be satisfied in a single procedure and appropriate internal procedures may be considered. The ECE-Convention on the Transboundary Effects of Industrial Accidents already provides for co-ordination in the case of EIA and Seveso projects.

Required decisions and environmental management

24. All four instruments have a competent body or bodies. In the EIA Directive, the results of consultations and the information gathered pursuant to relevant procedure must be taken into consideration in the development consent process. Member States shall ensure that projects falling within the scope of the EIA Directive are made subject to a requirement for development consent. Under the IPPC Directive, in cases of new installations or substantial changes where the EIA Directive also applies, any relevant information obtained or conclusion arrived at pursuant to the relevant provisions of that Directive shall be taken into consideration for the purposes of granting the permit. The emission limit values fixed by the IPPC permit, and the equivalent parameters and technical measures, should be based on the Best Available Techniques, without prescribing the use of any technique or specific technology, but taking into account the technical characteristics of the installation concerned, its geographical location and the local environmental conditions. The decision under the Seveso Directive should prohibit the use, or bringing into use, of any establishment, installation or storage facility, or any part thereof, where the measures taken by the operator for the prevention and mitigation of major accidents are seriously deficient. In the EMAS Regulation, the decision consists of the registration of sites which comply with the EMAS Regulations. They will then appear on the list of registered sites. Member States should be encouraged to provide for effective co-ordination and where appropriate in their system to unify competence under the same authorities.

25. The implementation of EMAS within a company helps it to comply with the regulatory instruments. It provides important organisational guarantees that the company is capable of identifying, monitoring and acting on its environmental effects and its environmental performance on a continued basis; taking the necessary measures to meet the legal requirements and reporting on all relevant matters.

26. The IPPC and EMAS Directives, have important common elements. Both aim at preventing, or at least reducing, adverse effects on the environment from industrial activities. Both stress the importance of monitoring of environmental effects, reducing environmental impacts, an integrated approach in seeking solutions for different environmental problems and specifying environmental objectives and the means to achieve them.

27. The EMAS environmental management system is an instrument which provides business operations with a set of appropriate means for achieving an effective reduction in the load on the environment. In regulatory instruments, permits set the emission limit values for the company’s activities. The licence stipulates a maximum load on the environment and what reduction in this load must be achieved. The licence also has a clear external function; in setting emission limit values its relevance is not confined to the company but extends to the competent authority and third parties.

28. An EMAS registration is an important indication to the permitting authorities that the company has sufficient means to comply with permit and other legal obligations. The existence of EMAS generates confidence in the reliability of data provided by the company, this is verified externally, for instance when complying with reporting requirements under the permit, or applying for a new permit, or when applying article 13 of the IPPC Directive. In this context, the use of an EMAS may be considered as a simplifying administrative procedure provided that there is a different role for the public authorities and the public, similar to the one they have under the other regulatory instruments. In particular, EMAS could support compliance with the provisions of article 14 of the IPPC Directive under the condition that it is done without prejudice of the role of competent authorities dealing with control and inspections activities. Member States should be encouraged to investigate use of the EMAS Regulation as part of their enforcement mechanisms. Finally, it should be considered how EMAS can deal with changes in the operation of the activity within the limits of the permit: one possibility would be that the company could make changes to business operations without having to apply for a modification to the permit (or to notify changes to it) every time.