The Author is founder of EkoTechnology Sp zoo, an air pollution equipment supplier in Poland, and is also an attorney with 25 years experience in environmental law.
The widely held view going into the "accession" discussions with the European Union was that the much tougher EU environmental rules would be phased in over an extended period of time. Late last year, however, the new Polish government, fresh off on an election campaign promising to accelerate the negotiations, conceded virtually the entire environmental chapter without transition periods. The large power plants, urban wastewater treatment and the volatile organic compound rules were the only transitions period granted to Poland (see Note below). The key environmental requirement that affects more businesses than any other, the Integrated Pollution Prevention and Control Directive ("IPPC"), will generally apply the day Poland is admitted into the EU.
Note: The Danish EPA website is the most complete published discussion of the transitions periods and results of the EU negotiations.
The Polish Environmental Ministry estimated that some 2,300 permits will need to be issued under the rules. IPPC covers a broad range of industries including: iron and steel, power generation, organic and inorganic chemicals, pulp and paper, cement, foundries, ferrous and non-ferrous metal processing, glass, textiles, refineries, intensive livestock farming, food processing, metal treatment, waste incineration, and more. What these rules will require and how companies can begin the task of complying is the focus of this article.
The Integrated Pollution Prevention and Control Directive was adopted in the EU in September 1996 [96/61/EC]. It is available on the Internet. The IPPC directive provides for comprehensive air, water, waste and noise permits. While discharge and emission limits as well as binding environmental quality standards from other laws are incorporated by reference into IPPC, the basic standard used is that "best available techniques" must be incorporated into comprehensive facility permits. This standard can probably best be summarized as best management practices, "without prescribing the use of one specific technique or technology and taking into consideration the technical characteristics of the installation concerned, its geographical location and local environmental conditions...." IPPC Directive, par. 17.
As was done in the United States, the EU set out with the IPPC program to provide technical guidance on what constitutes "BAT" for each industry affected by the rules. Eight of these guidance or reference documents - called "BREFs" - are now final and many more are in various stages of drafting and review. See IPPC Bureau site.
The IPPC Directive applies to all existing operations eight years after its effective date or October 31, 2007. The Polish statute adopted in anticipation of EU membership uses the date of June 30, 2003 as the cut-off for "existing installations," so facilities constructed after that date must immediately comply. But IPPC also immediately applies to any existing installation "substantially changed" prior to October 31, 2007. The Polish statute anticipates an ordinance that will implement IPPC and is only a few paragraphs in its entirety. Many questions will be raised as to the extent of Polandīs compliance with the IPPC if the ordinance is not carefully drawn.
IPPC permits are, by definition, "integrated." This not only covered air, water, waste and noise, but energy efficiency and other concerns. The final principle - site restoration - has prompted some of the most burdensome provisions of the application in the UK, for instance, defining the "baseline" conditions of the site, including pre-existing contamination levels. It is not clear that Polandīs implementing ordinance will have the same requirement.
Article 10 also makes it clear that specific environmental quality standards must also be met, even if these measures exceed BAT. In Poland, this is a very serious provision, since pre-transformation ambient standards are very stringent and are still on the books. Literally applied, these ambient standards may be more difficult in IPPC than any other requirement.
The question is, when the individual installation is being considered, can economic costs be used again to soften technical requirements?
The legal answer is no. The UK IPPC manual is explicit in this regard: while "balancing costs and advantages when assessing what is BAT," the permit writer cannot use "the lack of profitability of a particular business" to make exceptions for an individual operator. In an individual case, however, the agency can consider costs and benefits and determine that a normal BAT measure would be unnecessary. More importantly, for an existing installation, the UK agency recognizes that an operator cannot implement new techniques "overnight" and that it could "make a case for making improvements over a specified period of time...."
The hope of some operators that poor business conditions in their industry or region could be used as a carte blanche to avoid IPPC requirements would seem to be misplaced. The most that may be practically achievable is a phase-in of some requirements, where there are other non-cost practical considerations.
As it is clear from the above discussion, the Polish government is on a rocky road to implement the IPPC Directive. While the Ministry estimates that 2,300 permits will need to be issued, the pilot program undertaken with help from the Danish EPA focused on 15 applications in several regions in Poland. Unfortunately, even with outside assistance and experienced consultants going over each item, progress on issuance of these prototype permits has been very slow. This situation does not bode well for the hundreds of applications that must be filed to meet the May 1, 2004 deadline for issued permits and may well signal serious problems for even the October 31, 2007 date.
In a country where finding information about governmental decisions is still an art form, the IPPC directive requirements on public participation may be one of the biggest shocks to the system. Article 15 requires that the IPPC application be made public within "an appropriate period of time...to enable it to comment...." Sec.1. The final decision must also be made public as well as subsequent monitoring data. This rule will necessitate having Polish employees from the applicant company deal directly with the local public, including environmental and citizen groups, on the details of their permit and the environmental protection measures they propose to take.
Poland agreed to implement IPPC, effective on the date of its admission, with no transition period. Despite confusion over the dates, misunderstandings on the details, and virtually no necessary material available in Polish, companies in Poland will have to comply. Companies that need IPPC permits must have an issued permit to be able to operate.
Several steps can be taken in the present climate to prepare for IPPC compliance.
Trigger assessment
Every firm should review the IPPC directive itself, including the Annex 1 list of industries. Determine if your facility in Poland is subject to the rule. The UK guidance material is useful in this regard in the absence of Polish guidance.
Estimated schedule
Companies must determine when the IPPC deadline occurs for them. This may be most troublesome for facilities modified in this interim period. In the EU, "existing installations" have until October 31, 2007 to obtain an IPPC permit. New or substantially changed installation must immediately comply, which in Poland means by May 1, 2004, the new projected EU admission date. The more immediate deadlines argue for an accelerated permit strategy for affected companies.
Even the outside date of 2007 will require some short-term steps be taken, given a minimum six-month application review period, data collection needs, company clearances and a twenty-four month cycle for large equipment design and installation. Moreover, companies planning renovation or modifications will be potentially caught by the "substantial change" rule.
Draft BAT compliance
Whatever or whenever the Polish Ministry defines BAT for your sector, it will be likely based on the EU BREFs, including working and final drafts now available. Private sources anticipate that the Ministry may adopt the EU documents verbatim, which other accession countries ended up doing in the past. The alternative of having the technical working groups draft Polish equivalents that seriously depart from the EU BREFs seems impractical, if not unauthorized, at this juncture. Besides the EU BREFs and draft BREFs, companies can obtain a wide variety of BAT documents from individual national agencies and even the World Bank. Internet links are posted on the Polish IPPC pages. It is also possible to obtain a public copy of the permits under which competitive firms in the EU operate, which could provide a strong argument for a particular BAT approach for your facility.
Taken together, this "library" of information will provide your engineers with a wide variety of possible measures to select for your own facility. You will need to make a "best engineering estimate" of what you would like to adopt to meet the BAT requirement, including meeting tough local ambient environmental standards. It is critical to understand that your selection of technologies and operating conditions (such as material selection) will be incorporated into the IPPC permit itself. Modification may prove to be time-consuming and difficult in the future. Once making a determination on your permit proposal, you will need to assembly a detailed rationale for it, which can include engineering reports and opinions as well as references to BAT documents.
Draft application
The IPPC application is more detailed and time-consuming and data intensive than any environmental process that firms have experienced in Poland. Other EU membersī application forms and guidance materials will have to be used for guidance and planning, pending the Ministryīs publication of its own forms. See the UK IPPC application form at http://www.environment-agency.gov.uk. There is extensive guidance material on the application provided from other EU member states, such as the UK.
"Baseline" contamination assessment
Since IPPC permit-holders are required to return their sites to post-operations conditions [Article 3(f)], the so-called "baseline condition" becomes very important to the company, in effect, a contamination credit. The problem arises when this rule is implemented in conjunction with Polandīs new Contaminated Land Law, which creates various obligations for the owners of contaminated land. This means that any IPPC investigation may lead to more serious complications for the owner of the land. However, owners of land are entitled to better treatment under the liability scheme of the Contaminated Land Law if they report contamination by 2003, which argues for early investigations using the non-Polish IPPC guidelines. Some company decisions on this issue may need to be made before the Polish ordinance is issued and accepted by the EU.
Public participation strategy
Where there is a high level of public interest in a facility or a history of controversy, operators should expect an active public participation phase. Public comments and adverse reactions could possibly affect the permit-issuerīs decision of what will be required of the operator. The type of detail called for by IPPC applications, which must be made public, will often elicit questions by a public reader and may raise "red flags" if any adjustment periods are sought or exceptions to the EU BREF documents are included. But many of the necessary PR steps for an operator will appear "counter-intuitive" and will require careful front-end preparation.
The Integrated Pollution Prevention and Control Directive is undoubtedly the most important part of the EU environmental laws that had to be adopted for Polandīs accession. Its cost and broad applicability to multiple industrial sectors means that it will have a major impact on Poland.
While the current ambiguities and implementation problems could be used to as an excuse for a company to delay its plan for IPPC, the companies that are on top of this issue and prepare for compliance will have a demonstrable edge in the next few years. Any company building or rehabilitating facilities in the interim should be planning on BAT compliance in the process. When applicable, an IPPC permit is required to operate a facility; the sanction is closure until a permit is issued. Like any other rule affecting business, it is unlikely that government nonfeasance will be a workable excuse. The European Commission is also empowered to cite individual facilities for non-compliance and has done so in recent years.
Anyone affected by the IPPC directive should start the internal process of preparing for compliance as soon as possible, developing an orderly internal schedule and tentative approach to their individual permit.
***
Copyright © 2003, ECO Services International