IPPC and beyond—developing a strategic approach to industry for European environmental policy

Journal of Environmental Policy & PlanningJ. Environ. Policy Plann. 1: 77–91 (1999)

PROGRESS REPORT

IPPC and Beyond—Developing a Strategic Approachto Industry for European Environmental PolicyNEIL EMMOTT*Institute for European Environmental Policy, London, UK

Introduction

This paper1 examines major developments inEuropean Union (EU) policy concerned withthe environmental impacts of industry. It takes,as a starting point, the approaching implementa-tion of the Integrated Pollution Prevention andControl (IPPC) Directive2 in the MemberStates. IPPC is an important piece of EU legisla-tion, introducing a requirement to apply amultimedia permitting regime for certain indus-trial activities. However, IPPC applies only tolarge industrial installations, not smaller ones.Moreover, even where IPPC applies, it does notdo so in isolation. This paper, therefore, identi-fies some of the other EU developments whichwill affect industry. The purpose of the paper istwofold.

First, the paper seeks to provide outline infor-mation on some of the main EU developmentson the horizon for industry, and the way theywill interact with IPPC. Many will have animportant impact on how IPPC is applied, forexample by specifying standards to be consid-ered or reflected in IPPC permits. Policy-makersand regulators who are designing the arrange-ments to implement IPPC, therefore, need totake account of these developments. Industrialoperators may also benefit from a greater abilityto plan ahead in the knowledge of develop-ments that will affect them.

Second, the paper presents a critique of theEU’s overall approach towards controlling theenvironmental impacts of industry, includingthe links between IPPC and other related EUdevelopments. It highlights some areas whereimprovements could be made to achieve a morestrategic approach to policy-making at the EUlevel. It also addresses some issues associatedwith the application of EU measures at the levelof a Member State, reflecting experience in theUK, and considers the need for greater integra-tion of implementing mechanisms within thenational administration.

The paper initially presents an overview ofthe IPPC Directive and its significance in EUenvironmental policy, before reviewing furtherselected EU developments in four specific cate-gories. First, it looks at developments which aredirectly attributable to the IPPC Directive, inthat they follow specific provisions in the textof the Directive. Next, it examines a number ofmeasures in prospect that will impose require-ments on specific sectors of industry falling underIPPC. Then it goes on to review developmentsrelating to the protection of particular environ-mental media, which may introduce response re-quirements for industry as well as other sectors.Finally, the paper examines initiatives relating tothe control of products delivered by industry.

An overview of the IPPC Directive

The IPPC Directive is concerned with the con-trol of major industrial installations. It requires

* Correspondence to: Institute for European Environmental Policy,Dean Bradley House, 52 Horseferry Road, London SW1P 2AG,UK. Tel.: +44 171 7992244; fax: +44 171 7992600; e-mail:[email protected]

CCC 1523–908X/99/010077–15$17.50Copyright © 1999 John Wiley & Sons, Ltd.

N. Emmott78

defined activities to be made subject to a per-mitting regime in order to attain ‘a high level ofprotection for the environment taken as awhole’. Permits are to contain emission limitvalues (ELVs) and other conditions to preventor reduce emissions to air, water and land. Suchconditions will normally reflect an assessment ofthe ‘best available techniques’ (BAT), althoughmore stringent requirements may be imposedwhere necessary for compliance with environ-mental quality standards. Permit conditionsshould also give effect to certain general princi-ples set out in the Directive, such as the mini-mization of waste, the efficient use of energyand the prevention of accidents. In addition, thesite of an industrial installation must be restoredto a satisfactory state when the IPPC activityceases.

The Directive must be brought into effect inthe Member States by 30 October 1999. Thisdate represents the end point of a lengthygestation period from conception to realizationof the Directive, and the principles which un-derpin it, as summarized below (for a morecomplete analysis of these points see Emmott,1999).

The Directive was adopted on 24 September1996, after a process of formal negotiation start-ing from a Commission proposal tabled on 14September 1993.3 The proposal itself had devel-oped in draft form over several years and itera-tions, following a decision taken in 1989 byDirectorate General XI of the Commission topursue the legislation. In reaching this decision,the Commission was reacting to a report(Haigh, 1989) which noted that the establish-ment of such a Directive would be appropriatefor two reasons in particular: first, it wouldachieve a more holistic approach to industrialregulation; and second, it would ensure that EUlegislation did not block the efforts of individualMember States to move in this direction. Thisreport, in turn, was based on earlier work in anumber of areas, some dating back to the early1970s, which has been described in detail byothers (Haigh & Irwin, 1990).

The significance of the IPPC Directive is thatit marks a change of approach towards thecontrol of major industry in EU environmentalpolicy. Various previous measures had dealt

with one environmental problem or medium at atime. For example, Directive 75/4424 (the so-called ‘waste framework Directive’) had ad-dressed the production and management ofwaste, Directive 76/4645 imposed limits on dis-charges of dangerous substances to water, andDirective 84/3606 established controls on indus-trial emissions to air. In contrast, the IPPCDirective embodies an integrated approach toenvironmental protection, based on the recogni-tion (stated in the Directive’s preamble) that:

‘different approaches to controlling emissions intothe air, water or soil separately may encourage theshifting of pollution between the various mediarather than protecting the environment as awhole’.

As stated above, this principle underlying theIPPC Directive was not developed unilaterallyand in isolation by the EU, but rather it fol-lowed and built upon examples of work invarious other areas. In the UK, for instance, thesystem of Integrated Pollution Control (IPC)had been introduced by the Environmental Pro-tection Act in 1990. Like the IPPC Directive,IPC is concerned with the authorization ofcertain industrial processes on a multimedia ba-sis, and indeed it served as one of the mainmodels for the development of its EU counter-part. As a consequence of other influences,however, the IPPC Directive goes beyond IPCin several respects (Emmott & Haigh, 1996),necessitating changes to UK legislation.

More broadly, both the EU Directive onIPPC and the UK regime of IPC may be viewedwithin the context of a wider IPPC philosophy.Here, the premise that environmental problemsshould be addressed in an integrated manner isnot applied solely to industrial permitting. Thephilosophy is perhaps best set out in a Recom-mendation adopted by the OECD in 1991,7

advising member countries to:

‘practice integrated pollution prevention and con-trol, taking into account the effects of activitiesand substances on the environment as a whole andthe whole commercial and environmental life cy-cles of substances when assessing the risks theypose and when developing and implementing con-trols to limit their release’.

Copyright © 1999 John Wiley & Sons, Ltd. J. Environ. Policy Plann. 1: 77–91 (1999)

IPPC and Beyond 79

An Appendix to the OECD Recommendationsets out guidance on implementation of theRecommendation and includes, among otherpoints, a discussion of the possible foci fordecision-making. Specifically, it identifies thepossibility of applying the IPPC approach tosubstances, sources and geographical regions. Sourcesare further defined as including not only indus-trial processes but also products and economicsectors. As specific systems of control for certainindustrial activities, therefore, the EU’s IPPCDirective and UK’s IPC regime represent justone of many possible applications of the widerIPPC philosophy.

Developments that directly followfrom the IPPC Directive

The information exchange

One of the key provisions of the IPPC Directiveis that industrial installations are to be madesubject to conditions corresponding to a deter-mination of BAT. The term ‘BAT’ is defined in arather imprecise way, leaving considerable roomfor interpretation by the Member States (Em-mott, 1997). Article 16 then provides that thereis to be an exchange of information between theMember States on the limit values they haveapplied to industries regulated by IPPC and theBATs from which those values have beenderived. The Commission is to publish the re-sults of the exchange every 3 years. In accor-dance with Annex IV, the information publishedby the Commission provides one of many con-siderations listed for the determination of BATin practice.

In fulfilment of these provisions, the Com-mission has established a structure for the pro-duction of a series of so-called ‘BAT Reference’(BREF) notes. These BREF notes are to set outthe results of the exchanges of information fordifferent sectors. The first such notes—for thecement and lime, iron and steel, and paper andpulp sectors—are likely to be published in1999. BREF notes for the other industries cov-ered by IPPC are to be published in a rollingprogramme up to 2002.

The BREF notes will not set out definitiveviews of BAT or binding emission limits. Rather,their status is simply that conferred by theDirective: they represent the results of an ex-change of information and are to be taken intoconsideration, along with several other factors,in determining BAT. Nevertheless, they arelikely to be quite influential, if for no otherreason than because they will provide a largeamount of technical information on what is ‘bestpractice’ in different countries. This might oth-erwise be unavailable to regulators and industryin some Member States. In the UK, the Govern-ment has already said that full advantage shouldbe taken of any synergies which may existbetween the production of the BREF notes andthe preparation of domestic guidance for IPPC(Department of the Environment, Transport andthe Regions, Welsh Office and Scottish Office,1998).

The Polluting Emissions Register

Another obligation placed on the Commissionby the IPPC Directive is to publish an inventoryof principal emissions and sources. This is oftenreferred to as the ‘Polluting Emissions Register’(PER). According to Article 15 of the Directive,the Commission is to establish the format andparticulars of the inventory through a Commit-tee procedure. This work is ongoing. Once thedetails have been finalized, Member States willhave to provide national data to the Commis-sion as the basis for a consolidated inventory.Member States will then need to ensure thatthey can collect the necessary data, for examplethrough reporting requirements in IPPCpermits.

Emission limit values

Article 18 of the IPPC Directive provides forthe adoption of ELVs for IPPC installations orsectors at the EU level. This would follow anormal legislative procedure, whereby theCouncil and the European Parliament wouldnegotiate a Directive, acting on a proposal fromthe Commission. The Commission would beable to table such a proposal where it perceived


N. Emmott80

a need, for example as a result of the exchangeof information outlined in ‘The information ex-change’ section above.

It is likely that any Directives setting ELVswould be adopted under the legal base of Arti-cle 130s of the EC Treaty (like the IPPC Direc-tive itself), giving them the status of minimumrequirements rather than fixed limits. In otherwords, a competent authority in a Member Statecould choose to impose a stricter condition inan IPPC permit, but not a less stringent one.The ELVs would overrule any less demanding(but non-binding) levels of performance set outin BREFs.

Specific operational controls forIPPC industry sectors

Waste incineration

Waste incineration in the EU is currently con-trolled by three Directives. Directives 89/3698

and 89/4299 are concerned with the preventionof air pollution from ‘new’ and ‘existing’ munici-pal waste incinerators respectively (the dividingline is set at 1.12.90). Directive 94/6710 pro-vides for the control of hazardous waste inciner-ation. Both types of incineration are also subjectto IPPC. Article 18 of the IPPC Directive pro-vides that the emission limits specified in theincineration Directives are to be treated as min-imum requirements for any relevant IPPCpermits.

Recently, the Commission has brought for-ward a proposal for a new Directive on wasteincineration.11 This would replace the currentDirectives 89/369 and 89/429 on municipalwaste incineration. There are two main reasonsfor this change.

First, the coverage of Directives 89/369 and89/429 is not entirely contiguous with that ofDirective 94/67. This means that incineration ofsome wastes which are of concern, but areneither municipal nor hazardous, is not subjectto EU standards. The proposed Directive, there-fore, covers all waste incineration plants withspecified exceptions, the main one being theoperation of plants for hazardous waste inciner-

ation under Directive 94/67. In essence, theproposal seeks to achieve a situation wherebyincineration would be regulated via two parallelregimes: Directive 94/67 for hazardous waste;and the new proposed Directive for non-haz-ardous waste. The Commission—with thebacking of some Member States—is now un-derstood to be considering a further step, in-volving the merger of Directive 94/67 and thenew proposed Directive to create a single wasteincineration Directive.

Second, the standards in Directives 89/369and 89/429 are some 10 years old. The pro-posed Directive, therefore, contains more up-to-date requirements, drawing on the standardsagreed in the recently signed protocols on per-sistent organic pollutants and heavy metals un-der the UNECE Convention on Long-rangeTransboundary Air Pollution.

Like the current waste incineration Direc-tives, the proposed Directive would continue toapply to incineration activities that are alsoregulated under IPPC. The proposed Directivesets out clearly how determinations of BAT inIPPC are to take precedence, where they arestricter, by saying that:

‘. . . compliance with the emission limits laiddown by this Directive should be regarded as anecessary but not sufficient condition for compli-ance with the requirements of Directive 96/61/ECregarding the use of best available techniques;whereas such compliance may involve more strin-gent emission limit values, emission limit valuesfor other substances and other media, and otherappropriate conditions’ (preamble).

Large combustion plants

At a European level, acidification of the soil andwater has been a key environmental concern formany years. The problem is particularly associ-ated with the deposition of sulphur dioxide andoxides of nitrogen. The main current EU mea-sure to control the release of these pollutants isDirective 88/609 on large combustion plants.12

This sets out emission limits for power stationsand other large combustion plants, with differ-ent requirements for ‘new’ and ‘existing’ installa-tions (the dividing line is set at 1.7.87). New


IPPC and Beyond 81

plants must meet specific emission limits indi-vidually, while aggregate national emissionsfrom existing plants must fall below specifiedceilings. The emission limits for new plants are,by virtue of Article 18 of the IPPC Directive, tobe treated as minimum requirements in relevantIPPC permits. For the existing combustionplants, meanwhile, Member States have beenrequired to draw up programmes with the aimof complying with the ceilings specified. It willbe for Member States to determine what role (ifany)13 IPPC has to play in achieving theseceilings.

As well as imposing substantive restrictions asoutlined above, Directive 88/609 also assignedthe Commission the task of proposing updatedrequirements, both for new plant emission limitsand national ceilings for existing plants. TheCommission acted in the first of these areas inJuly 1998 when it tabled a proposed Directivecontaining updated emission limits for newplants.14 The proposal did not seek any modifi-cation of the emission ceilings for existingplants, as the Commission had by then decidedto propose national ceilings for acidifying pollu-tants from all sources instead (see ‘Acidificationceilings’ section below).

The proposed Directive is still under negotia-tion. The emission limits suggested for newplants are stricter than those of the currentDirective, and would also enlarge its scope byencompassing gas turbines. In addition, the pro-posal would encourage combined heat andpower generation and the use of biomass as fuel.

Using the same wording as the proposedwaste incineration Directive (see ‘Waste inciner-ation’ section above), the preamble to the pro-posed Directive on large combustion plantsindicates clearly that any stricter BAT require-ment under IPPC would take precedence overany specific ELVs established under the newDirective.

Landfills

Landfills fall under the scope of the IPPC Direc-tive if they receive more than 10 tonnes ofwaste per day or have a total capacity exceeding25000 tonnes (unless they deal only with inert

waste).15 Such landfills are also subject to thegeneral requirements of the waste frameworkDirective 75/442. Member States must, there-fore, establish arrangements to give effect to therequirements of both Directives.

More specific EU requirements for the opera-tion and control of landfills have been underdiscussion for several years. A first attempt atlegislation foundered in late 1996 when theParliament rejected a proposed Directive on thegrounds that it contained too many loopholes.The Commission was quick to table a newproposal,16 however, and this remains undernegotiation. The proposal would introduceoverall limits on the amount of biodegradablewaste that could be disposed of to landfill, aswell as controls to be applied to individuallandfills, for example in relation to leachatemanagement, protection of soil and water andmanagement of landfill gas.

There is a curious feature in relation to theproposed landfill Directive and its interface withthe IPPC regime. As originally tabled by theCommission, the proposed landfill Directive re-ferred to the IPPC Directive (and the wasteframework Directive) in the preamble asfollows:

‘Whereas, because of the particular features of thelandfill method of waste disposal, it is necessary tointroduce a specific permit procedure for allclasses of landfill in accordance with the generallicensing requirements already set down in Direc-tive 75/442/EEC, and the general requirements ofCouncil Directive 96/61/EC. . . ’.

It then went on to say that:

‘The provisions of this Directive shall apply with-out prejudice to the provisions of Directive 96/61/EC concerning integrated pollution preventionand control (Article 3(1)).’

Although the wording of the proposed land-fill Directive was different, therefore, the endresult would have been the same as that speci-fied by the proposed Directives for waste incin-eration and large combustion plants. If anobjective determination of BAT under IPPCwere to point to a more demanding conditionthan that contained in the proposed landfillDirective, then BAT would take precedence.


N. Emmott82

However, the proposed landfill Directive hasbeen modified in negotiation to reverse thisposition. In the form adopted by the Council asa Common Position,17 the proposal states that:

‘In respect of the technical characteristics of land-fills, this Directive contains, for those landfills towhich Directive 96/61/EC is applicable, the rele-vant technical requirements in order to elaboratein concrete terms the general requirements of thatDirective. The relevant requirements of Directive96/61/EC shall be deemed to be fulfilled if therequirements of this Directive are complied with’(new Article 1(2)).’

There is room to debate the precise meaning ofthis paragraph, for example by considering whatis meant by the terms ‘technical characteristics’and ‘relevant requirements’. But the main pointseems to be that as long as a landfill satisfies therequirements of the proposed landfill Directive,there is no need to consider the need for anystricter conditions that BAT might otherwiseentail under IPPC. Correspondingly, the Com-mon Position text removed the provision inArticle 3(1) of the Commission’s proposalquoted previously. Thus it incorporated the op-posite approach to that originally proposed.

The Council’s Common Position was pub-lished with some explanatory comments on themodifications adopted. On the relationship withIPPC, the comment was:

‘Given the similarity of the overall objective ofthis Directive to that of Directive 96/61/EC (theIPPC Directive) the Council considered it usefulto clarify their mutual relationship in the secondparagraph of Article 1. Accordingly the secondsentence of Article 3(1) has been deleted.’

This comment is rather opaque. The explana-tion that the change is to ‘clarify the relation-ship’ between IPPC and the proposed landfillDirective is not particularly illuminating, be-cause the ‘clarification’ in this case entails acomplete reversal of what had been proposedbefore. Unfortunately, there is no reasoninggiven for the substance of the change.

From a legal and procedural perspective,there is nothing to stop the Council from tak-ing this action as part of a proper process ofconsidering and negotiating EU legislation.However, there are some troubling issues here.

For a start, what was the point of puttinglandfills into the IPPC Directive and makingthem subject to a BAT assessment, only then toseek to remove them from BAT-type control innegotiating the proposed landfill Directive?Moreover, there is now an obvious inconsis-tency between this proposal and others. Why isit that some sectors (e.g. waste incineration,large combustion plants) should have minimumstandards which are overruled by any stricterBAT assessment, while others (landfills) shouldhave technical requirements that obviate theneed for a BAT assessment? There appears tobe no guiding policy on this point, nor anycriteria to decide what approach to take in thefuture.

A final point on this issue concerns the roleof administrative officials. Ministers may for-mally adopt Common Positions and Directives,but aside from major points of principle orsubstance it is administrators who negotiate thedetails. The officials in the Commission and theMember States who have been involved in ne-gotiating the landfill Directive will largely bedifferent to those concerned with IPPC. It is byno means clear that all of the latter were madeaware of, or would agree with, the changebrought about in respect of the proposed land-fill Directive. This is not to say that everypolicy decision has to be discussed with andapproved by every interested party. However, itdoes point to a significant structural flaw whenthe work of one set of administrators is over-ruled by the actions of another group withoutany clear reason. A more strategic approach isneeded to prevent this. A greater accountabilityon the part of the Council to explain the sub-stance as well as the fact of its actions would alsobe desirable.

Medium-specific initiatives

Atmosphere

EU environmental policy covers a number oftopics that can be classed together under thebroad heading ‘atmosphere’. Important develop-ments in this field are outlined below.


IPPC and Beyond 83

Air quality standardsThe basic framework for air quality managementin the EU is set by Directive 96/62.18 Thisprovides for the establishment of new ambientair quality standards and objectives, the assess-ment of air quality, the provision of informationto the public, and the development and imple-mentation of programmes to maintain or im-prove air quality. Limit values and alertthresholds for various ambient air pollutants areto be set through daughter Directives. Proposalsfor two such daughter Directives—setting stan-dards for sulphur dioxide, nitrogen dioxide, fineparticulate matter and lead in the first case,19

and for benzene and carbon monoxide in thesecond case20—have been tabled by the Com-mission to date. Proposals for further standardsfor several more pollutants should follow ac-cording to a schedule set out in Directive 96/62.

Industrial activities may be affected by theEU’s air quality legislation where they emitsubstances for which ambient standards havebeen set. There may be a specific need forcontrol where they cause or contribute to abreach of such a standard. The relationshipbetween the air quality standards and IPPC isset out by Article 10 of the IPPC Directive thus:

‘Where an environmental quality standard requiresstricter conditions than those achievable by theuse of the best available techniques, additionalmeasures shall in particular be required in thepermit, without prejudice to other measures whichmight be taken to comply with environmentalquality standards.’

The UK Government has interpreted thisprovision as meaning that not all breaches ofenvironmental quality standards need necessar-ily be dealt with by imposing stricter ELVs onIPPC installations (Department of the Environ-ment, Transport and the Regions, 1998a). Itindicates that guidance will suggest that com-petent authorities should investigate all optionsfor rectifying a breach, and notes the possibilityof restricting traffic, for example, rather thantightening emission limits at an IPPC installa-tion. This is sensible. It would be unreasonableif a long-established IPPC installation, responsi-ble for only a small level of emissions, were tofind itself disproportionately penalized for a

breach of an ambient standard caused predomi-nantly by a recent build-up of transport activity.However, where air (or other environmentalquality) standards are breached, this will be aviolation of EU law, and so sufficient action willneed to be taken somewhere to rectify the prob-lem promptly. This could present difficultieswhere the competent authority for IPPC doesnot have jurisdiction over the activity which isthe most appropriate target for control to bringabout compliance. A mechanism will need to befound to address this.

Acidification ceilingsThe EU’s main current measure to combat theproblem of acidification is Directive 88/609 onlarge combustion plants. As outlined in the‘Large combustion plants’ section above, thiscontains total national ceilings for emissions ofsulphur dioxide and oxides of nitrogen fromexisting plants. The original intention set out inDirective 88/609 was that amended ceilings forexisting plants would be negotiated based on aproposal from the Commission. However, theCommission is now proceeding along a differentpath, involving the drafting of a proposed Di-rective setting total national ceilings for emis-sions from all sources combined. This approach isfounded on the obvious fact that the resultingenvironmental harm when a pollutant reaches atarget is dependent on the nature and level ofthe polluting substance, but not its source. Alake will become acidified just as much by adose of oxides of nitrogen originating fromtransport activity as it would by the same dosefrom industry.

The idea of a Directive setting national emis-sion ceilings emerged from an EU debate on theneed for an overall strategy against acidification,based on the ‘critical loads’ approach. This in-volves dividing the territory of the EU into gridsquares and then assessing the ability of theenvironment in each square to withstand differ-ent levels of acid deposition. The common defi-nition of the ‘critical load’ in each square isthen:

‘a quantitative estimate of an exposure to one ormore pollutants below which significant harmfuleffects on specified sensitive elements of the envi-


N. Emmott84

ronment do not occur according to present knowl-edge’ (Nilsson & Grennfelt, 1988).

The fifth Environmental Action Programme,21

which sets the European Community’s pro-gramme of policy and action in relation to theenvironment for 1993–2000, states an objectiveof achieving ‘no exceedance ever of criticalloads and levels’. However, the EU acidificationstrategy proposed by the Commission is notpremised on the goal of respecting critical loadscompletely. Rather, it aims to achieve 50% ‘gapclosure’, which would involve reducing by atleast half the area of territory where criticalloads are exceeded in each grid square.

The Commission has indicated its intentionto propose the Directive setting acidificationceilings in 1999. It is expected to cover ammo-nia as well as sulphur dioxide and oxides ofnitrogen. Once proposed, it would be subject toa normal legislative process of negotiation be-tween the Commission, the Council and theEuropean Parliament. The adoption of a Direc-tive as law would then require Member States toachieve specified emission reductions over adefined period.

The extent to which industry in general, andIPPC installations in particular, will need tocontribute to any agreed emission reductiontargets will be a matter for each Member Stateto decide. Member States would be bound bythe targets, not the means of achieving them,and it may be the case that some substantialreductions could be achieved in other sectors,for example oxides of nitrogen from transport.However, Member States can do little to altervehicle and fuel standards nationally, becausethese are fixed at the EU level in order tosupport the single market. The main option forcontrolling traffic emissions in the short- tomedium-term, therefore, boils down to measuresto restrict or deter traffic. A strong political willto make transport achieve its fair share of thereductions will be needed if industry, which ismore readily subject to tighter standards, is notto be burdened with a disproportionate load.The complex interaction with the need toachieve other environmental objectives—and inparticular greenhouse gas reduction targets (see‘Climate change’ section below)—will also needto be addressed.

Clean Air for Europe (CAFE)The emerging policy initiatives concerned withair pollution outlined above, and the manyother measures already in place in this sector,tend to have developed at the EU level ratherindependently of one another. However, in late1998 the Commission raised the possibility ofcreating a single framework for EU air policy,known as Clean Air for Europe (CAFE). Thiswould appear to involve an extension of theapproach used in the past in the so-called ‘Auto/Oil programme’. This brought car manufacturersand fuel producers together with policy-makersto discuss the optimum approach to limit emis-sions from road transport.

CAFE would go beyond the topic of trans-port, bringing together stakeholders concernedwith wider aspects of air pollution. As such, itcould provide a welcome opportunity to achievea more strategic approach to identifying airpollution problems and considering ways toaddress them, including through controls onindustry where appropriate. However, CAFE isstill at an early stage, and is now being devel-oped through a feasibility study by theCommission.

Climate changeUnder the Kyoto Protocol to the UN Frame-work Convention on Climate Change (UN-FCCC), the EU has agreed to cut its emissionsof the six main greenhouse gases to 8% below1990 levels by 2012 at the latest. EU andnational measures are now required to ensurethat this obligation is fulfilled. In pursuit of this,the Commission published a Communication22

on climate change policy in 1998, as a first steptowards an EU strategy on this topic. A follow-up Communication, expected in the first half of1999, should contain concrete proposals for EUaction in relation to issues such as EU-widetrading of greenhouse gases. Even in advance ofthis, however, an agreement on ‘burden sharing’has already been reached among the MemberStates. Under the burden sharing arrangement,the UK has accepted a 12.5% reduction com-mitment. The UK Government has a furthertarget of a 20% reduction in carbon dioxidereleases. This was an election manifestocommitment.


IPPC and Beyond 85

In addition, certain multinational companieshave already developed their own internal trad-ing schemes for greenhouse gases. Moreover,through the processes of the IntergovernmentalPanel on Climate Change and the UNFCCC,further clarification on issues such as the opera-tion of emission inventories and tradingschemes will emerge over the next year or so.The complex interaction of these factors willneed to be taken into account in finalizingclimate change strategies at both the EU andnational levels. The UK Government has al-ready made a start on this through a consulta-tion paper on climate change (Department ofthe Environment, Transport and the Regions,1998b).

Industry, like other sectors, will need to playits part in achieving greenhouse gas reductiontargets. Quite what that part will be, or whatrole IPPC will fulfil, has yet to be determined. Itis worth noting that carbon dioxide, the maingreenhouse gas, has been a prescribed substancefor IPC and the parallel system of Local Author-ity Pollution Control since those regimes wereintroduced, but does not appear to have beensubject to particularly demanding regulatoryscrutiny to date. Certainly the increased politi-cal profile of climate change means that a morerobust approach will be needed as IPPC comesinto effect, but it remains to be seen whetherthe application of IPPC alone will be sufficientto achieve the necessary reductions from theinstallations it regulates. As things stand in theUK at present, however, IPPC appears to be theprincipal regulatory lever that will bear uponindustrial greenhouse gas emissions, although anumber of other measures are underconsideration.

Water: the proposed water framework Directive

There is a large body of EU policy for protec-tion of the water environment. It includes anumber of Directives setting environmentalquality standards for water in different situa-tions. These will need to be taken account of inIPPC permitting by virtue of Article 10 of theIPPC Directive (see ‘Air quality standards’ sec-tion above). One of these Directives setting

quality standards—Directive 76/464 on dis-charges of dangerous substances23—also con-tains emission limits. Member States maychoose whether to apply the quality standard-or the emission limit-based approach. Directive76/464 additionally is one of the measuresspecified by Article 18 of the IPPC Directive assetting minimum requirements to be included inIPPC permits. Another Directive—80/6824—sets specific requirements for the protection ofgroundwater, and again these will need to bereflected in IPPC permits where appropriate.

EU water policy is set to be amended by animportant new measure, namely the proposedwater framework Directive,25 which is currentlyunder negotiation. This is centred around theobjective of establishing a framework for themanagement of surface water and groundwateron the basis of the river basin. Member Stateswill need to develop programmes for river basinmanagement in order to achieve good waterstatus over a defined period.

The proposed Directive also envisages theestablishment of a new series of environmentalquality standards for the water environment. Intime, these will replace the current water qualityDirectives. Equally, the provisions of Directives76/464 and 80/68 will be subsumed into thenew framework. However, unlike Directive 76/464, the proposed water framework Directiveenvisages a combined approach, such thatMember States would have to observe bothenvironmental quality standards and emissionlimits, rather than having a choice of followingone or the other.

Industry will be affected by the proposedwater framework Directive where industrial ac-tivities give rise to polluting emissions or otherenvironmental effects that need to be addressedto achieve good water status. Some controlsdoubtless will be imposed through the vehicleof IPPC permitting. Indeed, where achievementof the objectives of the proposed water frame-work Directive is seen to involve a need forELVs at the EU level to control emissions fromIPPC sectors, these would be set throughdaughter Directives to IPPC (see ‘Emission limitvalues’ section above).


N. Emmott86

Soil: the draft White Paper on liability

Historically, protection of the soil has receivedless attention from policy-makers in Europethan the two other important media—air andwater. At an EU level there is a substantial bodyof legislation on water pollution and a growingrange of policy instruments concerned with airquality and air emissions but no correspondingset of measures concerned with the protectionof the soil. This does not imply that soil protec-tion has been overlooked entirely. One canpoint to a range of measures with a bearing onthe protection or appropriate management ofsoils within the EU. However, these do notamount to a considered and systematic ap-proach to soil conservation. Nor can they read-ily be put into a clearly related group ofmeasures in the same way that distinct bodies of‘air’ and ‘water’ policy can be seen.

The main new EU development in prospectwhich is relevant to soils in particular (but alsoaffects the other media) concerns the topic ofenvironmental liability. This is not the first timethis subject has been considered at the Eu-ropean level. Indeed, the Commission at-tempted to establish a legislative measure some10 years ago, when it proposed a Directive onliability for damage caused by waste.26 This firstformulation would have imposed a system ofstrict liability upon waste producers for harm tothe environment caused by their waste. How-ever, the initiative did not find favour amongMember States, and failed to become law.

More recently, the Commission has taken adifferent tack by drafting a wider White Paperon environmental liability, rather than a specificmeasure concerned only with damage caused bywaste. The White Paper has not yet been pub-lished, although it is believed to be nearingcompletion. In essence, the draft White Paperenvisages making polluters liable for paying foror remedying any environmental damage theyhave caused, where the damage is concrete andquantifiable and can be linked to a specificactor. This would cover situations such as indus-trial accidents or gradual pollution from identi-fied sources, and so could provide forremediation of, or compensation for, pollution

of soils. Liability would be strict, except wherethe damage was caused by an authorized opera-tion, such as an emission falling within thelimits specified by an IPPC permit.

Once the White Paper has been published, itwill probably still be necessary to translate anyapproaches favoured into a legal form if theyare to have practical effect. The negotiation ofany such measure is likely to be long andcontentious. Moreover, the draft White Paperenvisages that any EU legislation on environ-mental liability would only deal with damageoccurring after the law took effect. Thus the EUregime would not touch the considerable prob-lem of restoring contaminated sites which areextremely numerous and widespread in Europe.Most policy in this field is presently determinedat national or regional level and there are vary-ing definitions of contamination, standards forremediation and further use of previously con-taminated land.

Product-related initiatives

Chemicals policy

There is an extensive body of EU instrumentsrelating to the control of chemical products.Central among these are the following fourmeasures:

� Directive 67/54827 on the classification,packaging and labelling of dangerous sub-stances, which also provides for the testingof new substances;

� Directive 88/37928 on the classification,packaging and labelling of dangerous prepa-rations (mixtures or solutions of substances);

� Regulation 793/9329 on the evaluation andcontrol of the risks of existing substances;and

� Directive 76/76930 on the restrictions onmarketing and use of dangerous substancesand preparations.

In 1998 the Commission undertook a reviewof the effectiveness of the EU’s chemicals pol-icy. This led to a report31 on the four mainpolicy instruments, in which the Commission


IPPC and Beyond 87

noted that the present arrangements for riskassessment and risk management were not al-ways working effectively. Regulation 793/93 hasproved to be particularly problematic, as it hassingled out some 110 existing substances for riskassessment, but has failed to see implementationof any substantive risk reduction measures todate. The Commission’s report identified theneed to streamline legislation, which may helpto improve this process.

As a follow-up to this work, the Commissionis now preparing a new EU chemicals strategy.In the first instance, it appears likely that thestrategy will not go significantly beyond thefunctional areas of current EU chemicals policy,essentially covering the activities of evaluatingchemical products and then finding ways tolimit their environmental impacts. The strategymay, therefore, examine ways to improve EUpolicy for testing chemicals, and to establishmore workable systems of control on the la-belling, marketing and use of chemicals that arepermitted to be produced. At this stage, how-ever, it does not appear likely to attempt anysignificant integration of chemical product con-trol with industrial process control. Neverthe-less, there are good reasons why suchintegration could be a fruitful area for futurepolicy initiatives.

As noted in the ‘Acidification ceilings’ sectionabove, it is an obvious fact that environmentalharm when a substance reaches a target is notdependent on its source. A target exposed to achemical from a product would be just as dam-aged if the same chemical were to have comefrom an industrial emission. From the point ofview of protecting the target, therefore, themost important thing is that the overall dose isreduced to an acceptable level. Once the neces-sary reduction has been established, then theoptions to achieve it can be assessed. This mayinvolve controls on products, regulation of in-dustrial activity, or a combination of both.

Another interaction between chemical prod-ucts and industrial processes concerns the searchfor the optimum solution for the environment asa whole. If we look just at the available produc-tion processes for a given chemical product, wemay select what appears to be the best produc-tion option, but fail to take account of the fact

that it produces a less environmentally desirableproduct, for example because of impurities. Theenvironmental consequences of the productmight then outweigh the advantages of theapparently optimal process. In other words, if aproduct is worth having, then it could be rightto permit a production process which is slightlyless effective than ‘normal’ BAT, where it resultsin a better overall solution once the impacts ofthe product have been factored in. Equally, inrare instances it might be judged that the envi-ronmental impacts of a product and its produc-tion process, taken together, outweigh thebenefits provided, such that production of theproduct should be prohibited. The same conclu-sion might not be reached if the productionprocess and the product itself were controlledseparately.

Endocrine disruptors

One specific finding of the Commission’s reviewof EU chemicals policy in 1998 was that there isa need to take account of emerging problemssuch as endocrine disruptors. The Commissionis now following-up this point by drafting apolicy on endocrine disrupting substances.

The Commission’s work on endocrine disrup-tors has emerged from, and appears to remainlargely within, the domain of EU chemicalspolicy. This is essentially concerned with con-trolling chemicals as products. But such sub-stances do not only reach environmental targetsvia products. They may also be emitted into theenvironment in effluent discharges. The IPPCDirective explicitly recognizes this, since itsindicative list of the main pollutants (Annex III)includes substances and preparations that mayaffect reproduction via the air or in or via theaquatic environment. This re-emphasizes theneed to consider a greater linkage between EUchemicals policy and EU pollution policy.

Integrated Product Policy (IPP)

IPP is a relatively new and evolving area of EUenvironmental policy. It was introduced to avariety of interested parties at a workshop orga-nized by the Commission in late 1998. The


N. Emmott88

Commission is now planning to proceedthrough the production of a Green Paper in thesecond half of 1999.

According to the Commission,32 there is notyet an agreed definition of IPP, but the concepthas two main characteristics:

‘It covers all product systems and their environ-mental effects, while taking a lifecycle perspectiveas the lead principle. In this context it is asimportant to avoid shifting environmental prob-lems between different media during the produc-tion process (integrated pollution control), as toavoid shifting environmental problems betweenthe various stages within the lifecycle of aproduct.’

and

‘It must consider and involve all relevant stake-holders along the product chain.’

It is noteworthy that the first of the two maincharacteristics reproduced above refers explic-itly to the production process, and to ‘integratedpollution control’ (though, oddly, not to IPPC).Indeed, based on the above, the IPP approachappears to be based on a similar premise to thebroad IPPC philosophy elaborated by the OECDRecommendation of 1991, described in the sec-tion ‘An overview of the IPPC Directive’, ofwhich the EU’s IPPC Directive represents justone manifestation. More specifically, the OECDRecommendation sets out a number of basicprinciples of the IPPC philosophy, to be appliedthrough a variety of management instruments.These principles are:

(a) consideration of the whole lifecycle of sub-stances and products (the ‘cradle to grave’concept);

(b) anticipation of the effects in all environ-mental media of substances and activities(both new and existing), including multiplepathways to exposure and movementthrough the environment;

(c) minimization of the quantity and harmful-ness of waste;

(d) the use of one common means, such as riskassessment, for estimating and comparingenvironmental problems; and

(e) the complementary use of effects orientedmeasures, such as environmental quality

objectives, and source oriented measures,such as emission limits.

The IPP initiative is at an early stage. Itremains to be seen whether it will indeed ad-vance along principles similar to those aboveelaborated by the OECD—in which case aclose interaction with the IPPC Directive under-pinned by the same principles might begin tocrystallize—or whether it will take a differentdirection. More generally, it is also unclear howfar IPP will attempt to link production processcontrol with measures relating to, say, the mar-keting and use of products. A further question iswhether IPP will seek to incorporate issues re-lated to chemical products, or whether thesewill remain the domain of a separate strand ofEU policy as outlined in the ‘Chemicals policy’section above. These will be important points toconsider as IPP moves forward.

Indications from the IPP workshop in late1998 were that some of the main areas of initialattention are likely to include topics such asproduct standardization, eco-labelling, and pro-ducer responsibility. This suggests that, at leastin the early stages, IPP may largely aim to buildand improve upon measures that already exist atthe EU level and in some Member States, seek-ing a more strategic approach to policy-makingconcerned with the environmental impact ofproducts. Nonetheless, this need not preclude amore focused attempt to integrate various dis-parate strands of current policy—perhaps en-compassing industrial production processes,control of chemicals, and promotion of environ-mentally-friendly consumer products—as a sub-sequent step.

Concluding remarks

The IPPC Directive is a significant step in EUenvironmental policy, introducing an importantnew regime for industrial regulation. But itshould not be viewed in isolation. Indeed, thereis a sizeable and growing family of EU measureswith a bearing on industry, concentrated partic-ularly in the areas of controlling particular in-dustrial sectors or emissions, promoting orcontrolling certain products, or addressing cer-


IPPC and Beyond 89

tain environmental issues that cut across manyother sectors as well as industry. It can bequestioned whether these diverse instrumentstogether amount to a satisfactory response tothe challenge of moving the European industrialeconomy towards the goal of sustainable devel-opment. If not, should we envisage either newinstruments or a more strategic approach whichitself may not require fresh measures, but rathera sharper focus on the key environmental prob-lems associated with industry and a longer termvision of how they can be addressed?

In considering the immediate future, it shouldbe recognized that there are some opportunitiesfor making considerable progress by means ofbetter integration of existing and proposed mea-sures. To a large extent, of course, the possibil-ity exists for this to be realized at the nationallevel. EU Directives essentially state an objec-tive to be met, and as long as Member Statesachieve this through an appropriate legal route,there is nothing to stop them from adoptingimplementing mechanisms to give effect to mul-tiple EU measures in an integrated structure.Unfortunately, two points work against this.

First, at the EU level, negotiation of individ-ual Directives tends to focus on the narrowtopic of the measure in question. The extent towhich a proposed Directive will fit in as part ofany broader strategy does not appear, at leastfrom the outside, to be considered systemati-cally once negotiations start. Where such issuesare considered, they seem to be rather ad hoc.The EU measures themselves, therefore, tend tobe riddled with inconsistencies and ambiguities,making joint implementation difficult. For ex-ample, the IPPC Directive contains one defini-tion of ‘installation’ while the Directive on theControl of Major Accident Hazards (CO-MAH)33—which will apply to many of thesame activities—specifies something differentfor the same term. Similarly, there is no obviousreason why the technical requirements of theproposed waste incineration and landfill Direc-tives would be minima which would be over-ruled by any stricter IPPC BAT assessment, butconversely the technical requirements of theproposed landfill Directive could obviate theBAT appraisal required by IPPC.

Second, once a Directive has been adopted,the task of implementation tends to be led bygovernment officials whose responsibilities areclosely related to the subject matter of theDirective, and do not go much beyond them.With pressures imposed by the deadline fortransposition and (in the UK at least) the ever-increasing scarcity of resources in the CivilService, it is inevitable that a prime concern ofan administrator will often be simply to get aDirective implemented in time to avoid thethreat of infraction proceedings. A more tidyapproach to implementation, integrated withother measures, may be seen as desirable, but itwill usually be a second order priority, and inany case may be obstructed when responsibilityfor the other measures in question falls to otherareas of the administration. Thus the UK hasrecently consulted on three important Direc-tives for industry—IPPC, COMAH, and theamending Directive 97/11 on EnvironmentalImpact Assessment (EIA)34—with each processled by different parts of the Department of theEnvironment, Transport and the Regions(DETR). There are clear possibilities for theseDirectives to be implemented in consonancewith one another. Unfortunately they have notbeen pursued. The reasons for this failure arecomplex, but may include a certain amount of‘territoriality’ and ‘protectionism’. This would beunderstandable in an era where downsizing is apersistent threat. However, now that we havean integrated approach to pollution preventionand control, it would seem appropriate to seek amore integrated administrative structure to giveeffect to it and other measures in harmony.

Looking further ahead, it is timely to considera more strategic approach to industry in Europe.An initial analysis of the current set of measuresand their efficacy as a response to the chal-lenges of making industry sustainable would bean obvious starting point. In order to do this,however, we need to decide what we reallymean by sustainable development at an EUlevel. The EU has already made a start on this,for example in the shape of the European Coun-cil’s commitment to ‘environmental integration’at the Cardiff Summit in June 1998. ‘Environ-mental integration’ is focused on the need tomake environmental considerations an integral


N. Emmott90

part of decision-making in non-environmentalpolicy sectors, such as the EU’s Common Agri-cultural Policy. Even in the relatively narrowdomain of ‘direct’ environmental policy, how-ever, it is by no means clear what, collectively,we are trying to achieve. There are some topicswhere EU measures provide a reasonably clearstatement of long-term ambitions, such as theair quality Directives and the proposed waterframework Directive. But equally, there areareas at both the EU and national levels whereour environmental aspirations remain undefined.For example, there is an absence of any overallgoals relating to resource consumption, despitethe fact that this is identified as a relevant factorin individual EU measures such as IPPC35 andthe eco-labelling Regulation 880/92.36 There isalso no clear link between resource consumptionissues and the EU’s relatively well-developedbody of waste policy. It remains to be seenwhether this will emerge from the IPP initiative.

Such an analysis would need to be clear aboutthe role of any EU initiatives relative to thecontinuing need for action at a national andregional level. Subsidiarity is always likely to bea sensitive issue. There is also a need, as envi-ronmental objectives are identified, to considerthe best way of achieving them. This may notalways be through regulation. However, anearly analysis would help to prepare the waynot only for the evolution of a coherent strategytowards industrial sustainability within the EU’scurrent borders, but also for the accession ofseveral Central and Eastern European countrieswhich will bring new industrial challenges intothe equation.

Current EU measures addressing the environ-mental impacts of industry are fragmented. Op-portunities to build missing connections duringimplementation in the Member States areblocked by the structures of the EU measuresthemselves, and by administrative and otherbarriers at the national level. The resulting inco-herence is to the benefit of neither industry northe environment. A more strategic approach toindustry is needed, tied into a wider understand-ing of the collective environmental improve-ments that we are pursuing. The EU’s currentglobal assessment of the Fifth EnvironmentalAction Programme—a prelude to the develop-

ment of a successor programme of EU environ-mental policy for 2000 and beyond—provides atimely opportunity to make a start.

Notes

1. The paper was originally prepared for presenta-tion at the Industrial Pollution Control—Clearer SkiesAhead? conference organized by the NationalSociety for Clean Air and Environmental Protec-tion on 16 February 1999. The paper has beenexpanded for publication in this journal.

2. Official Journal of the European Communities(OJ) L257, 10.10.96.

3. COM(93)423, OJ C311, 17.11.93.4. OJ L194, 25.7.75, amended by Directive 91/156,

OJ L78, 26.3.91.5. OJ L129, 18.5.76.6. OJ L188, 16.7.84.7. OECD Environment Monograph No 37, Inte-

grated Pollution Prevention and Control, April 1991.8. OJ L163, 14.6.89.9. OJ L203, 15.7.89.

10. OJ L365, 31.12.94.11. COM(1998)558, OJ C372, 2.12.98.12. OJ L336, 7.12.98.13. Directive 88/609 sets national SO2 emission

ceilings only until 2002, but Member States haveuntil 2007 to bring their existing plants underIPPC.

14. COM(98)415, OJ C300, 29.9.98.15. ‘Inert waste’ is not defined in the IPPC Directive,

but it is defined in the proposed landfill Direc-tive, which states that it is ‘waste that does notundergo any significant physical, chemical orbiological transformations’.

16. COM(97)105, OJ C156, 24.5.97.17. OJ C333, 30.10.98.18. OJ L296, 21.11.96.19. OJ C360, 23.11.98 (Council Common Position).20. COM(1998)591, tabled by the Commission on

1.12.98.21. OJ C138, 17.5.93.22. COM(1998)353, Climate Change—Towards an EU

Post-Kyoto Strategy, 3.6.98.23. It is necessary to examine a number of daughter

Directives in order to see the specific standardswhich have been set.

24. OJ L20, 26.1.80.25. COM(97)49, OJ C184, 17.6.97; COM(97)614,

OJ C16, 20.1.98; COM(98)76, OJ C108, 7.4.98.26. COM(89)282, OJ C251, 4.10.89.


IPPC and Beyond 91

27. OJ L196, 16.8.67 (amended numerous times).28. OJ L187, 16.7.88 (amended numerous times).29. OJ L84, 5.4.93.30. OJ L262, 27.9.76.31. Commission Working Document, unpublished,

November 1998.32. Workshop report available on the internet at

http://europa.eu.int/comm/dg11/ipp/home.htm.33. OJ L10, 14.1.97.34. OJ L73, 14.3.97.35. Annex IV identifies ‘the consumption and nature

of raw materials’ as a consideration to be takeninto account in determining BAT.

36. OJ L99, 11.4.92; the Regulation identifies theconsumption of resources as a factor to be con-sidered across product lifecycles.

References

Department of the Environment, Transport and theRegions (1998a) Third Consultation paper on the Imple-mentation of the IPPC Directive. December.

Department of the Environment, Transport and theRegions (1998b) UK Climate Change Programme: Con-sultation Paper. October.

Department of the Environment, Transport and theRegions, Welsh Office and Scottish Office (1998)

UK Implementation of EC Directive 96/61 on IntegratedPollution Prevention and Control (Second ConsultationPaper). January.

Emmott, N. (1997) Prospects for a level playingfield. Clean Air and Environmental Protection, 27: 160–165.

Emmott, N. (1999) An overview of the IPPC Direc-tive and its development. In: Integrated PollutionPrevention and Control: The EC Directive from a Compar-ative Legal and Economic Perspective (edited by C.Backes and G. Betlem). The Hague: Kluwer LawInternational, 23–41.

Emmott, N. and Haigh, N. (1996) Integrated pollu-tion prevention and control: UK and EC ap-proaches and possible next steps. Journal ofEnvironmental Law, 8: 301–311.

Haigh, N. (1989) Possibilities for the Development ofa Community Strategy on Integrated (Multi-media) Pollu-tion Control. Submitted by the Institute for Eu-ropean Environmental Policy to DG XI, October1989.

Haigh, N. and Irwin, F. (eds) (1990) Integrated Pollu-tion Control in Europe and North America. Washington,DC: Institute for European Environmental Policy,London, and the Conservation Foundation.

Nilsson, J. and Grennfelt, P. (1988) Critical Loads forSulphur and Nitrogen. Oslo: Nordisk MinisterradMiljorapport.


IPPC and beyond—developing a strategic approach to industry for European environmental policy

Documents

Transcript of IPPC and beyond—developing a strategic approach to industry for European environmental policy