The Industrial Emissions Directive (IED)

The IED, which is based on Article 192(1) TFEU, comprises eighty-four articles and eight substantive Annexes. It lays down rules on integrated prevention and control of pollution arising from industrial activities and rules designed to prevent or, where that is not practicable, to reduce emissions into air, water, and land and to prevent the generation of waste, in order to achieve a high level of protection of the environment taken as a whole. By ‘pollution’ is meant the direct or indirect introduction, as a result of human activity, of substances, vibrations, heat, or noise into air, water, or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment.

Ensuring a high level of protection of the environment as a whole is a daunting task, considering the complexity of many environmental problems and the abatement measures that may be employed.^[1] It is, for example, not unusual for the abatement of one source of pollution to result in an increase in other polluting activity, such as the generation of additional energy needed to operate scrubbers. It often also necessitates value judgements on things such as how to balance a small risk for large damage against a larger risk for more modest harm.

With the exception of research and development activities and the testing of new products and processes, the IED applies to all industrial activities giving rise to pollution referred to in Chapters II to VI. (Arts 1-3.)

The Directive is composed of seven chapters. Chapter I contains common provisions applying to all industrial activities covered by the IED. Chapter II covers the activities set out in Annex I, that is, essentially the same as previously covered by the IPPC Directive. Chapters III to VI contain requirements for large combustion plants, waste incineration plants, solvents installations, and titanium dioxide installations, respectively. Chapter VII deals with competent authorities, reporting, committee, penalties, and final provisions.

The main substantive part of Chapter I is dedicated to provisions on permits, applicable to all the industrial activities covered by the IED.

Member States must ensure that no installation or combustion plant, waste incineration plant, or waste co-incineration plant, as deemed in the Directive, is operated without a permit. However, with respect to installations and activities using organic solvents, Member States may instead opt for a registration procedure.

A permit may cover two or more installations or parts of installations operated by the same operator on the same site if the Member State so decides.^[2] It may also cover several parts of an installation operated by different operators. By ‘operator’ is understood

any natural or legal person who operates or controls in whole or in part the installation or plant, or, where this is provided for in national law, to whom decisive economic power over the technical functioning of the installation or plant has been delegated. (Art 3)

Where more than one competent authority or more than one operator is involved or more than one permit is granted, the conditions of, and the procedures for the granting of, the permit shall be fully coordinated in order to guarantee an effective integrated approach by all authorities. (Arts 3—5.)

Without affecting the obligation to hold a permit, requirements for certain categories of installations or plants may be laid down in the form of general binding rules.^[3] The permit must then include a reference to these rules^{[4] [5] [6]} (Art 6).

This requirement is likely to cause problems in Member States who implement the so-called BATREF conclusions (discussed later in this chapter) through general binding rules in order to escape the need to regularly review the individual permits. Including a reference to the general binding rules may require the permits to be reviewed anyway and thus undercut some of the administrative efficiency expected to be gained from using general rules.

Member States must take the necessary measures to ensure that the permit conditions are complied with. If there is a breach of the permit conditions the operator shall be required immediately to inform the competent authority and take the measures necessary to ensure that compliance is restored within the shortest possible time. If the breach poses an immediate danger to human health or threatens to cause an immediate significant adverse effect upon the environment, the operation of the installation or plant or relevant part thereof shall be suspended until compliance is restored.

In the event of any incident or accident significantly affecting the environment, operators must be required to immediately inform the competent authority and take measures to limit the environmental consequences and to prevent further possible incidents or accidents. (Arts 7 and 8.)

With respect to emissions of a greenhouse gas covered by the EU ETS, the permit for such installations shall not include an emission limit value (discussed later in this chapter) for direct emissions of that gas, unless necessary to ensure that no significant local pollution is caused^ (Art 9). Whether this really prevents the Member States from imposing emission limits is debatable since the IED is based on Article 192 TFEU and even provides, in the preamble, ‘greenhouse gas emission requirements’ as an example of more stringent protective measures which it does not prevent the Member States from taking. 1³ However, such national measures could easily fail to constitute more protective measures since they may undermine the objective of the EU ETS and in fact only lead to a redistribution of emissions while not resulting in a reduction below the EU-wide cap set by the

EU ETS.1⁴

For activities covered by the EU ETS, Member States may choose not to impose requirements relating to energy efficiency in respect of combustion units or other units emitting carbon dioxide on the site (Art 9).

• [1] On whether truly integrated protection is even possible, see F Oosterhuis and M Peeters ‘Limits toIntegration in Pollution Prevention and Control’ in M Peeters and R Uylenburg (eds) EU EnvironmentalLegislation. Legal Perspectives on Regulatory Strategies (Edward Elgar, 2014) 91-115, 107.
• [2] An ‘installation’ is a stationary technical unit within which one or more activities listed in AnnexI or in Part 1 of Annex VII of the IED are carried out, as well as any other directly associated activitieson the same site which have a technical connection with the listed activities and which could have aneffect on emissions and pollution. Art 3.
• [3] By ‘general binding rules’ is meant emission limit values or other conditions, at least at sectorlevel, that are adopted with the intention of being used directly to set permit conditions. Art 3.
• [4] Whereas the English version of the text (‘the permit may simply include’) could possibly givethe impression that such a reference is voluntary, a comparison with other language versions makes itobvious that such a reference is required. See eg the German ‘so genugt es’, the Dutch ‘volstaat het’,and the Swedish ‘sa racker det’.
• [5] The covered installations and gases are listed in Annex I to the ETS Directive (Dir 2003/87/EC).
• [6] Preambular para 10. On the right to take ‘more stringent protective measures’ with respect todirectives based on Art 192 TFEU, see section 4.2.3.