Following the publication by the European Commission of the conclusions on best available techniques (BAT) in the waste sector on 17th August 2018, the operators are required to submit a reconsideration file ("dossier de réexamen") and, in certain circumstances, a baseline report to the environmental authority by 17th August 2019. The operators would then have to bring their equipment and installations in line with BAT by 17th August 2022.
This deadline gives us an opportunity to go back over the regulations applicable to the ICPEs (classified facilities for the protection of environment) that are subject to Directive 2010/75/EU on industrial emissions (also known as the IED). Those ICPEs are those which are listed under the items "3000" in the classification of classified facilities.
The Directive lays down three guiding principles:
- the application of best available techniques (BAT) in the operation of the relevant activities, and in particular the definition of emission limit values (ELV);
- site remediation measures to return the site to a state that is close to the one described in the baseline report, i.e. close to the state of soil and groundwater before the commissioning of the facilities;
- a periodical reconsideration of permit conditions.
The deadline relates to that last principle. The reconsideration file should be prepared on the basis of a comparison between the operation of the facilities as described in the application for a permit, on the one hand, and the new conditions of operation that have become necessary following the publication of BAT, on the other hand. So, one should include details for the updating of the application file for a permit, the operator's opinion on the need to update the requirements contained in the permit, and any other information the préfet would find necessary for the purposes of reconsidering the permit.
The baseline report mentioned in the second guiding principle is not always a very restrictive formality, as the operators are required to provide at least information on the present use of the soil and, if possible, on past uses of the soil, as well as, where available, information about the state of soil and groundwater. However, if the operator does not hold sufficient information, the operator shall take the initiative of carrying out investigations.
(i) Which are the operators, to whom the 17th August 2019 deadline applies?
Not all waste treatment activities are affected by these changes to BAT. Only those operators who carry out one of the following activities are required to communicate a reconsideration file to the DREAL:
- the disposal or recovery of hazardous waste, where the capacity is higher than 10 tons per day (item No. 3510);
- certain storages of hazardous waste, where the capacity is higher than 50 tons per day (item No. 3560);
- the disposal of non-hazardous waste, where the capacity is higher than 50 tons per day (item No. 3531);
- the recovery of non-hazardous waste, where the capacity is higher than 75 tons per day (item No. 3532);
- the treatment of waste water released by the aforementioned plants, in independent plants, which are not referred to in the EU Directive of 21st May 1991 (item No. 3710).
Please note that the incineration of waste is excluded from the scope of the BREF dealing with the treatment of waste.
Not all of the operators carrying out one of the activities listed above are required to provide a baseline report. Operators are required to provide such a report only if their activity involves the use, production or release of hazardous substances and there is a possibility of soil and groundwater contamination at the site of the installation. If the operator considers that its activity does not fall in that category, the operator will be required to provide a supporting report to the Inspectorate for classified facilities. In addition, only those facilities that existed on 5th January 2012 and have not been reconsidered since 7th January 2013, are concerned.
(ii) The reconsideration file is a crucial step for operators
It is in the interest of the operators of IED sites to meet this deadline, and for two reasons:
First of all, failure to comply with this formality shall give rise of the payment of a fine of the 5th class. So, those operators who fail to file an application for reconsideration by the aforementioned deadline would be liable to pay a fine, which amount may reach 7,500 euros (if a legal entity). The prefect may also send a formal notice to the defaulting operator to produce the reconsideration file within a given time limit, and then impose administrative sanctions in the event of delay.
Also, knowing that operators are given four years to ensure they comply with BAT, it is worth preparing to meet this deadline as of now, by means of this reconsideration file.
(iii) The obligation to bring the activities in line with BAT
For IED operators in the waste sector, compliance will need to be ensured by 17th August 2022, on the basis of the reconsideration file.
In the same way, the intensive rearing of poultry or pigs, which is addressed in the IED legislation, will be required to comply with the BAT conclusions published on 21st February 2017, no later than on 21st February 2021. In this sector, the French Minister for Ecological and Solidarity Transition includes, among the priority actions of the Inspectorate for classified facilities, "the upgrading of intensive rearing to European environmental standards".
According to our information, the French Minister for Ecological and Solidarity Transition would currently be finalising a "generic guide on reconsideration" applicable to "IED" classified facilities, but this guide is not expected to be published until September 2019.
Please feel free to contact us for any question you may have on the above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
