When does what apply and to whom?
The Industrial Emissions Directive 2010/75/EU, which is currently still in force, regulates air, soil and water pollution from industrial plants. It contains criteria for determining the emission limit values to be complied with and the corresponding review procedures, as well as other authorisation-relevant content. The directive is currently being revised as part of the European Green Deal. The revised version of the directive (also known as “IED 2.0”) aims to achieve the EU’s climate protection targets by 2050 by promoting energy efficiency, the circular economy and decarbonisation.
In particular, the revision significantly expands the scope of the IED, meaning that many industrial facilities will be subject to authorisation requirements under the IED 2.0 for the first time. This affects, for example, forging companies, cold rolling mills and large livestock farms as well as other companies from the extractive industry and battery production. However, operators of installations that already fell within the previous scope of Directive 2010/75/EU will also have to familiarise themselves with completely new requirements in some cases.
New and stricter requirements for system operators
The IED 2.0 will require the introduction and implementation of an environmental management system for the first time, the relevant content of which must be made available to the public. Such content includes, for example, specific environmental policy targets for the continuous improvement of environmental performance and plant safety, a list of chemicals and the newly introduced so-called transformation plan for a neutral circular economy. Violations of these and other obligations are to be penalised with high fines.
A stricter standard is applied with regard to determining and monitoring compliance with permissible environmental performance and emission limit values, as set out in Articles 14, 15 and 16 of the IED 2.0. In future, plant operators will have to ensure that they comply with the lowest achievable limit values. There will no longer be any room for manoeuvre within a range of emission values.
Which limit values apply to which type of installations and which methods are to be used to measure them (so-called “best available techniques”, or “BAT” for short) can be found in the so-called BAT reference documents or the associated BAT conclusions. The latter are legal acts with technical content that are issued by the EU Commission in consultation with an expert council for the various industrial sectors. They serve as reference documents for determining the authorisation requirements for individual industrial plants.
Entry into force or: when does what apply and to whom?
Now that the European Council has adopted the amendment to the Industrial Emissions Directive in April 2024, the legal text is expected to be published in the Official Journal of the EU in the coming weeks. The directive will enter into force on the 20th day after publication. The regulations must be transposed into national law by the member states within 22 months at the latest.
However, Art. 3 of the IED 2.0 provides for a large number of transitional provisions for the application of certain provisions from Art. 14, 15 and 16. These are only applied with a corresponding time delay. This applies in particular to requirements for (i) environmental performance and emission limit values to be complied with and (ii) the corresponding monitoring of compliance with these limit values as well as (iii) the monitoring of the use of resources and (iv) the definition of binding margins for normal operating conditions (Art. 14 (1) (aa), (bb) and (h), Art. 15 (4) and (6) of the IED 2.0).
The transitional periods are largely linked to the publication of new BAT conclusions. In principle, the new requirements will initially only apply in conjunction with new BAT conclusions, which will be published in the Official Journal of the EU after a period of 22 months following the entry into force of the new directive. Operators of affected installations will have up to four additional years from the date of publication of the BAT conclusions to implement the new requirements. For installations that are still subject to the “old” BAT conclusions, the previous legislation will continue to apply for the time being. After twelve years at the latest, the requirements must then also be complied with in relation to the new BAT conclusions. This is intended to protect the status quo for existing installations. Operators of existing installations should nevertheless familiarise themselves with the new requirements as soon as possible, as these will be applied without a transition period when permits are updated in accordance with Art. 20 (2) or Art. 21 (5).
Special conditions also apply to installations that will fall within the scope of the directive for the first time. They must comply with all legal and administrative provisions adopted under the IED 2.0 within four years of the publication of BAT conclusions. This excludes the new, stricter requirements from Art. 14 (1) (aa), (bb) and (h), Art. 15 (4) and (6) of the IED 2.0. This is intended to facilitate the authorisation of projects planned fort he long term. If no new BAT conclusions are issued, operators have a total of ten years for implementation. Only installations which are granted a first-time permit after the publication of new BAT conclusions following a transitional period of 22 months after the IED 2.0 comes into force must comply with the requirements from the date of publication of the new BAT conclusions.
Conclusion
The new Industrial Emissions Directive poses new challenges for many companies, not least because of the expansion of its scope. Compliance with some of the new obligations will also be time-consuming and complex.
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