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BAT and emission limit values

One of the principles, namely the BAT requirement, is subject to a far more extensive definition than the others, and also involves an elaborate procedure for determining its substantive content in relation to specific activities. According to the basic definition, BAT is

the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values[1] [2] [3] and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole. (Art 3)

It is further specified that ‘techniques’ includes both the technology used and the way in which the installation is designed, built, maintained, operated, and decommissioned.

To be considered ‘available’ techniques must be

developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator. (Art 3)

A technique qualifies as ‘best’ when it is the most effective in achieving a high general level of protection of the environment as a whole (Art 3).

If there is to be a high level of protection of the environment and if a level playing field for industrial installations is to be upheld in the Union, there is a clear need for a common view on what constitutes BAT. The method for achieving EU-wide BAT standards is the elaboration of ‘BAT reference documents’ (BREFs). The drawing up, review, and, where necessary, update of BREFs is based on an exchange of information between the Commission, Member States, the industries concerned, and non-governmental organisations promoting environmental protection. 17 This exchange of information (the ‘Sevilla Process’), which is coordinated by the European IPPC Bureau at the EU Joint Research Centre in Seville, addresses: (a) the performance of installations and techniques in terms of emissions and the associated reference conditions, consumption and nature of raw materials, water consumption, use of energy, and generation of waste; (b) the techniques used, associated monitoring, cross-media effects, economic and technical viability, and developments therein; and (c) the BAT and emerging techniques!® identified after considering the above issues.

There is also a forum composed of representatives of Member States, the industries concerned, and non-governmental organisations promoting environmental protection whose opinion the Commission shall obtain on, inter alia, guidance on the collection of data and on the drawing up of BREFs.[4] [5] [6] [7] The Commission shall take into account the opinion of the forum on the proposed content of the BREFs. (Art 13.)

BREFs may either focus on issues related to particular industrial activities, so-called ‘vertical’ BREFs, or deal with cross-sectoral issues, such as monitoring or energy efficiency, in which case they are referred to as ‘horizontal’ BREFs. All BREFs are available on the Internet.20

The parts of a BREF laying down the conclusions on BAT, their description, information to assess their applicability, the emission levels associated with the BAT, associated monitoring, associated consumption levels, and, where appropriate, relevant site remediation measures are set out in so-called ‘BAT conclusions’.

BAT conclusions are adopted by the Commission as Implementing Decisions in accordance with the examination procedure.21 In so doing it is assisted by a committee composed of Member State representatives (‘the IED Art 75 Committee’).

As briefly noted previously, significant shortcomings were identified in the implementation of BAT under the IPPC Directive, including many permits not being based on BAT without any clear justification. This was attributed partly to the unclear role of the BREFs and to the large degree of flexibility left for Member State authorities to deviate from BAT in the permitting process.22 To address this problem the IED now requires that BAT conclusions be used as the reference for setting the permit conditions for all installations covered by Chapter 2.23 But it does not prevent national authorities from setting stricter permit conditions than those achievable by the use of BAT as described in the BAT conclusions. (Arts 13 and 14.)

Permits for Annex I activities must include emission limit values (ELVs)—that is, the mass, concentration, and/or level of an emission, which may not be exceeded during one or more periods of time—for the polluting substances listed in Annex II. Among these are, with respect to air, sulphur dioxide, carbon monoxide, volatile organic compounds, dust, chlorine, and fluorine; and, with respect to water, organohalogen and organotin compounds, biocides and plant protection products, substances which contribute to eutrophication, and those which have an unfavourable influence on the oxygen balance. However, the ELVs may be supplemented or replaced by equivalent parameters or technical measures ensuring an equivalent level of environmental protection.

ELVs and equivalent parameters or technical measures shall be based on BAT, without prescribing the use of any technique or specific technology. They shall ensure that, under normal operating conditions, emissions do not exceed the emission levels associated with the BATTh However, where an assessment shows that the achievement of such emission levels would lead to disproportionately higher costs compared to the environmental benefits due to either the geographical location, the local environmental conditions, or the technical characteristics of the installation concerned, the competent authority may set less strict ELVs. Such ELVs may not, however, exceed the ELVs for specific activities, including large combustion plants and waste incineration and co- incineration plants, set out in Annexes to the IED.

The competent authority must also ensure that no significant pollution is caused and that a high level of protection of the environment as a whole is achieved.

Temporary derogations from the requirements relating to ELVs and to the application of BAT and the taking of all the appropriate preventive measures against pollution may, under certain conditions, be granted for the testing and use of emerging techniques for up to nine months. (Arts 3, 14, and 15.)

Where an environmental quality standard (EQS) requires stricter conditions than those achievable by the use of the BAT, additional measures shall be included in the permit (Art 18).

  • [1] ‘Emission limit value’ (ELV) is the mass, expressed in terms of certain specific parameters, concentrations, and/or levels of an emission, which may not be exceeded during one or more periods oftime. Art 3.
  • [2] On the process of drawing up and revising BREFs and the representation of different interests in this process, see B Lange Implementing EU Pollution Control: Law and Integration (CambridgeUniversity Press, 2008) and M Lee EU Environmental Law, Governance and Decision-Making (2nd edn,Hart Publishing, 2014) Chap 5.
  • [3] 1® An ‘emerging technique’ is a novel technique for an industrial activity that, if commercially developed, could provide either a higher general level of protection of the environment or at least the samelevel of protection of the environment and higher cost savings than existing BAT. Art 3.
  • [4] Commission Decision of 16 May 2011 establishing a forum for the exchange of informationpursuant to Article 13 of the Directive 2010/75/EU on industrial emissions [2011] OJ C 146/3.
  • [5] See (visited 15 January 2016).
  • [6] See as an example 2012/135/EU: Commission Implementing Decision establishing the bestavailable techniques (BAT) conclusions under Directive 2010/75/EU of the European Parliament andof the Council on industrial emissions for iron and steel production [2012] OJ L 70/63.
  • [7] COM(2007) 844 final (n 6) 9. 23 Until BAT conclusions have been adopted according to the above-described procedure, the conclusions on BAT from BAT reference documents adopted by the Commission before the entry intoforce of the IED apply, with some exceptions, as BAT conclusions for the purposes of Chapter II IED. Art 13.
 
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