Position
Improvement of the BAT process
Federation of German Industries e. V.
Date: 31 August 2018
Improvement of the BAT process
List of contents Introduction ............................................................................................................. 3 Proposals for improvement of the Sevilla process .............................................. 4 A reliable framework for an effective and functioning BAT process ................... 4 Adapt workload to limited capacities of involved stakeholders .......................... 4 Improvement of capacity and competence in the Sevilla office ......................... 4 Reducing data collection to the essential .......................................................... 5 Improvement of data evaluation required .......................................................... 7 Increasing the importance of the TWG .............................................................. 8 Obligation to carry out an impact assessment ................................................... 9 Making BAT conclusions clear and open to all types of technology .................. 9 About BDI .............................................................................................................. 11 Imprint ................................................................................................................. 11
Improvement of the BAT process
Introduction An optimal design of the process for drafting BAT reference documents describing Best Available Techniques (so-called Sevilla process, BREF process or BAT process) as well as its implementation into German law are of great importance for industry and its ongoing development in Germany. German legislation on authorisation of installations and the installation park are significantly influenced by the findings in BAT conclusions. Under the EU industrial emissions directive (IED; 2010/75/EU), BAT reference documents describing best available techniques are drafted in an information exchange between the European Commission, EU Member States, industry and non-governmental organisations. As compared with its predecessor, the integrated pollution prevention and control directive (IPPC), IED provides for a strengthening of BAT reference documents. The BAT conclusions developed on the basis of BAT reference documents specify binding emission reduction requirements for industrial installations (article 15 IED). This means that the state of the art for preventing or reducing emissions from industrial activities is now binding for all Member States at European level. Very high requirements are imposed on permissible derogations (article 15.4 IED) so that they have only been applied in Germany in only a few cases to date. The implementation of BAT requirements can result in considerable additional costs and expenses for emission reduction and process optimisation of the existing installation park for affected industrial undertakings – also and in particular for small and medium-sized enterprises. The recently adopted BAT reference document on large combustion plants (LCP) has shown that the Sevilla process needs to be improved. On the one hand, it was confirmed through legal opinions during the process itself that parts of the BAT conclusions are based on incorrect data derivations and go beyond the state of the art, a situation which was unfortunately not taken into account even though it was known about when the BAT conclusions were being adopted. Germany and seven further Member States therefore voted against the BAT conclusions. On the other hand, procedural rules were infringed during coordination in the so-called article 75 committee. The European Commission accepted the BAT conclusions without being sufficiently and comprehensively informed about negative positions on the BAT conclusions.
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BDI is committed to the Sevilla process and supports a uniform and binding state of the art across Europe. However, in the opinion of German industry, the Sevilla process needs to be improved considerably. Proposals for improvement of the Sevilla process A reliable framework for an effective and functioning BAT process There must be reliable framework conditions for an effective and functioning BAT process. Due to the large number of stakeholders involved, this is of particular importance. A fixed timeline as well as appropriate processing periods should ensure that there is sufficient time for proper design of the questionnaire, data collection and comments. Duplication of work must be avoided from the start of the process through a clear assignment of tasks. Furthermore, the aim should be to involve stakeholders in a transparent decision-making process and, if possible, to win over all EU Member States for the preparation of BAT reference documents. The willingness of industry to engage in the BAT process can be increased significantly in this way. In addition, thought could be given to a transparent weighting of positions. Positions of Member States and associations with a large number of installations should be given a greater weighting than those with a lower number. Adapt workload to limited capacities of involved stakeholders The capacities of involved industrial undertakings and authorities are limited. This fact must be taken into account. Both vertical and horizontal BATs should be taken into consideration. The short time frame of completing the BAT reference documents within four years should be abolished. Under no circumstances should time pressure jeopardise the quality of a document.
Improvement of capacity and competence in the Sevilla office Sufficient capacity and competent staff should be ensured in the Sevilla office. Authors should bring in technical expertise, be familiar with the sector in question, be assigned to themes which match their professional qualifications and be able to take over from each other. An author should accompany the process of drafting a BAT reference document from start to finish. Otherwise continuity in its development will be disrupted. If an author leaves, the Commission (DG Environmental und DG Economic and www.bdi.eu
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Financial Affairs) should appoint a new author within three months. In order to ensure a continuous process of improvement, authors should know about mistakes made in the past and the corresponding legal opinions and learn lessons for future work. Furthermore, authors should be aware of potential overlaps with other BAT reference documents. Reducing data collection to the essential A sound data basis forms the basic structure of any BAT process and is central to the subsequent derivation of BAT conclusions and emission ranges. Representative data which correctly reflects the relevant issues in a meaningful way must be collected. In particular, the data collected at different points must be made comparable by means of corresponding definitions. System limits must be unambiguously defined so that comparability of data is a given. To this end, a certain minimum knowledge of the sector in question is necessary. To ensure comparability of data, an efficient and transparent process is indispensable. Nevertheless, there have been failings in the past so that parts of BAT conclusions are built on a false data basis (LCP-BREF). In addition, , there is an increasing tendency for BREFs of the newer generation setting not only emission levels (BAT-AEL) but also emission performance levels (BAT-AEPL) for areas such as material, water or energy consumption which are not covered by the industrial emissions directive. All of this must be avoided in the future. BDI proposes the following improvements: â–Ş
BAT reference documents are generally too comprehensive. Therefore, the aim should be to identify only the environmentally relevant processes and pollutants. Due to the enormous effort required to determine the data, the information required to interpret the emission values should not be requested in general, but only when necessary.
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The relevance of processes, sectors and emissions should be given greater consideration (focused approach). Areas which contribute little to total emissions or whose emission reduction potential is limited should not be taken into account. A BAT reference document should concentrate on key environmental concerns where harmonisation at EU levels hold out the promise of clear added value. In many cases, emissions of substances relate to just a few production units or processes. In such a case, the BAT conclusions and monitoring requirements should apply only for the units in question and not for the entire sector. A generally accepted method should be developed to determine the relevance of pollutants. Industry’s expertise should be taken into consideration for development of the method.
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Aspects for which there is no basis in the industrial emissions directive are increasingly finding their way into BAT reference documents, the so-called emission performance levels (BATAEPL). With this new approach, the questionnaires ask about matters which go far beyond the current understanding, e.g. about energy efficiency and product use, despite the fact that these provisions are not binding on the Member States – by contrast with emission levels (BAT-AEL) – and do not have to be transposed into national law. When these aspects are transposed into national law, disadvantages due to location are the result, which is contrary to the spirit of the IED. Information, such as national limit values or monitoring regulations, can serve to provide background understanding of emission values, but should only be requested if necessary and not in general, as this leads to very time-consuming data collection, which often can no longer be provided by the companies.
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In addition, with a view to transposition of new BAT conclusions in the Member States, a 1:1 reference to the annexes to IED would be necessary since IED as the enabling legislation sets out the permissible regulatory framework (no new clusters of installations, no annual average values).
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Changes to the scope and to the structure of BAT reference documents should be made only with the consent of the technical working group (TWG). An effort should be made to avoid ex-post scope changes.
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The “expert judgement” should be avoided or limited to cases where there is a poor data basis.
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Interfaces between horizontal and vertical BAT reference documents should be clearly defined in order to avoid duplicate regulation and the associated legal uncertainties, locational disadvantages and wasteful use of resources.
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Ahead of data collection, there should be clearer criteria for the determination (annual or daily average values, conformity with IED, with/without measurement uncertainties, data at a marked distance from measurement tolerance, measurement method and definition of “normal operation”, no consideration of installations in test operation). A duty to label data appropriately should also be introduced. In this way, it can be avoided that data are not meaningful, e.g. that the underlying measurement statistic is unclear or to ensure that data are correctly interpreted.
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The measurement methods used should be supplemented with a reference to the relevant existing standards and documentation of the measuring instruments used and permitted. Data without
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recognised references and inappropriate measuring equipment should not be taken into account in the data analysis. In the past, it has proved problematic to combine data of different origin, different quality and without clear identification (e.g. results of individual measurements and continuous measurements, data from new installations and old installations, different averaging periods for minimum and maximum values). The essential problem consists in this data basis being mixed with no differentiation, the result being identified as BAT-AEL which can be met in annual and daily averages and, lastly, being transposed as a binding limit value in national law. Such a procedure is completely unsuitable and broadly makes it impossible to meet BAT requirements even in reference installations. In the case of data measured noncontinuously, the daily average value and maximum daily average value can differ by a power of ten with continuous measurement. Accordingly, the significance attached to such data must be given a smaller weighting than that given to data measured continuously. ▪
BAT limit values must relate only to installations which correspond to the “state of the art” or are equivalent and have reliably demonstrated the corresponding emission values in a representative number in practice over a fairly long period. This means that individual installations or trial and pilot installations which are likely to be classified as “state of the art and technology” should be expressly ruled out.
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During a BAT process, only data which ensures that no reliability problems arise should be requested. This must be taken into account particularly when requesting sensitive data.
Improvement of data evaluation required Industry’s willingness to take part in data collection has increased significantly in recent years. As a result, the data basis is becoming larger and larger and data evaluation more complex. In principle, the data should be evaluated in a transparent process and according to a defined procedure. Despite the guidance notes for drafting BAT reference documents, the criteria for deriving emission values are still often unclear. It must be possible to meet the derived emissions levels in practice. ▪
Industry would welcome it if data were evaluated in a consistent process which is transparent for all parties involved using previously agreed criteria. This would also result in greater acceptance for the emission limits which emerge. Once data have been fed in, their evaluation is currently far too opaque for companies. Clear requirements and criteria for data evaluation are missing. In addition, it would be helpful if data and draft versions of work in progress were more accessible so that associations/ stakeholders can be given input at an early stage. It should be
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possible to identify which comments have already been processed and which have not. Alongside consistency and transparency, this would also create a time advantage. ▪
It should be obligatory to take delivered data sets into consideration if they demonstrably represent the “state of the art”. For the same reason, deficient and inadequate data sets should be rejected. This should be made transparent. No emission levels should be derived from inadequate data sets, e.g. if a new parameter has not yet been sufficiently recorded across the EU. Monitoring until the next review would then be more appropriate, as no emission band can be derived and defined on the basis of few data for many installations concerned.
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In principle, two drafts should always be provided for. In addition, the kick-off meeting should place a focus on the substantive reduction and grouping of typically comparable installations.
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It is not enough merely to present the methodology in a web seminar. Instead, the data should be evaluated in subgroups in which there is the corresponding expertise. Here, too, transparency in the process should be ensured. Furthermore, data evaluation workshops even before the first draft would prevent subsequent requests and hence accelerate the process.
Increasing the importance of the TWG The framework conditions of the Sevilla process provide that the technical drafting of a BAT reference document and derivation of the BAT conclusions take place within the technical working group (TWG). Decisions must be taken on the basis of technical expertise and must not be shaped by political perspectives. In BDI’s view, there is still a need for action in particular on the following points: ▪
The TWG should have rules of procedure that set out sufficiently precise requirements regarding membership, appointment of members, responsibilities, tasks and voting modalities.
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Should definitions or the structure be adapted in the article 13 forum or article 75 committee, the resulting modifications must be agreed in close consultation with the TWG.
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Should differences of opinion emerge, they must be dealt with at an early stage. A procedure for this should be established. As and when necessary, decisions already taken by the TWG should be revised a second time using the same procedure. At the TWG's request, a further draft should be generally possible.
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Many of the data requested relate to business secrets which can be made available only to the Sevilla office but not to the entire
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TWG. As a result, evaluations built on these data are not transparent and difficult to understand for those involved. ▪
Alongside DG Environment, representatives of DG Economic and Financial Affairs should also be included in the TWG since many decisions have direct economic and macroeconomic implications.
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It should be ensured that the outcome of opinion-forming in TWG is arrived at through a qualified majority vote. A vote to reject a proposal or an abstention by TWG members as has been customary hitherto provides only an insufficient picture of opinion. The level of approval is not queried, so it remains unclear whether members of the TWG who are not affected or who have no opinion will in fact always come forward when abstentions are queried. Failure to do so will automatically lead to approval. In the case of such important decisions, the direct recording of those who give their consent is of great importance.
Obligation to carry out an impact assessment An impact assessment should be obligatory. The consequences of a BAT conclusion for the EU, individual member states and the industry should be assessed in terms of time and expected costs. The industries concerned should also be consulted (with an estimate of investment and operating costs). Their response should be requested after the first BAT draft has been prepared, discussed in the TWG, taken into account in the second draft and, if necessary, be updated, submitted to the Art. 13 Forum and the Art. 75 Committee and adopted by the Commission. In Germany, the impact assessment should be carried out ahead of the Federal Government’s positioning. Making BAT conclusions clear and open to all types of technology Only clear and unambiguously formulated BAT conclusions which can be implemented in practice should be issued. BAT conclusions which are not generally applicable in all cases should continue to be clearly formulated as to their applicability. BAT conclusions must be IED-compatible. IED is the legal basis for the BAT process. Accordingly, every BAT conclusion and its applicability should always be verified for conformity with IED. This verification should be documented. Difficulties must be eliminated in TWG and should not be steered into either the article 13 forum or article 75 committee or left for implementation at Member-State level. Possible derogations under article 15.4 IED whereby less stringent emission values can be set under certain www.bdi.eu
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conditions must not be regarded as a blank cheque for failing to tackle problems and open questions in the BAT process. Rather, the European Commission should communicate how it expects particular conclusions should be transposed into national law. BAT conclusions must be technology-open and must not exclude technologies which can lead to equivalent results (equivalent reductions/ equivalent environmental protection). Entrepreneurial freedom and freedom to design processes must have the highest priority here.
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About BDI
The Federation of German Industries (BDI) communicates German industries’ interests to the political authorities concerned. It offers strong support for companies in global competition. BDI has access to a wide network within both Germany and Europe, to all the important markets and to international organisations. BDI provides political flanking for the opening of international markets. It also offers information and guidance on all issues relevant to industries. BDI is the leading organisation of German industries and related service providers. It represents 36 sectoral organisations and more than 100,000 companies with approximately 8 million employees. Membership is voluntary. 15 federal representations advocate for companies’ interests on a regional level.
Imprint Bundesverband der Deutschen Industrie e.V. (BDI) Breite StraĂ&#x;e 29, 10178 Berlin, Germany www.bdi.eu T: +49 30 2028-0
Contact Annette Giersch, LL.M. Lawyer T: +49 30 2028 1608 a.giersch@bdi.eu
BDI document number: D 0913
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