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Environmental protection regulations in European Union

Environmental protection

As discussed above, over the years, the European Union has developed a complex regime of environmental protection legislation on air and water quality, chemicals, and solid and hazardous waste, which is law in EU Member States. Other initiatives of the European Union (e.g., concerning single-use plastics) are only at an early stage at present.

Air quality

Directive 2008/50 on ambient air quality and cleaner air for Europe (Air Quality Framework Directive (AQFD)) updates and draws into one instrument almost all EU directives on air quality management, including air quality standards and targets for particular pollutants such as SO2, NOx, lead (Pb), carbon monoxide (CO), benzene, PM-10, PM-2.5 and ozone.

The AQFD first sets up a regime for the monitoring and assessment of ambient air quality, for the collection, exchange and dissemination of air quality information and to better understand the impacts of air pollution for the development of appropriate policies. Air quality assessment occurs in ‘zones of agglomerations’, established by Member States. This allows areas with relatively common air quality characteristics to be assessed together. Physical monitoring is only required in zones where concentrations of relevant pollutants are above certain thresholds set by the Directive. Otherwise, modelling or objective-estimation techniques suffice to generate the relevant data. In all events, scientific methods are central to Member States establishing and meeting their assessment obligations.

The AQFD also sets up an air quality management system using a series of environmental quality standards (EQSs) and targets. These depend on the following parameters: the pollutants at issue, their respective risks to human and environmental health, current knowledge about how to control them and the costs involved in doing this. Different regulatory obligations and consequences attach to each EQS. EQSs include limit values as part of national exposure reduction targets, target values and alert thresholds. Alert thresholds are defined by the AQFD as a level beyond which there is a risk to human health from brief exposure for the population as a whole.

Second, the AQFD requires Member States to draw up air quality plans and short-term action plans, including transboundary air pollution plans, where applicable, for example, where levels of air pollution exceed limits or target values. Such plans must outline how to achieve the limits or target values or appropriate measures to ensure that any exceedance period is minimised. The short-term action plan obligation is triggered by levels of pollutants exceeding one or more alert thresholds and must contain measures to be taken in the short term to reduce the risk or duration of exceedance of alert thresholds. Where information and alert EQS thresholds are exceeded, the AQFD requires Member States to inform the public and make certain air quality information available to the public.

A recent example of the AQFD’s requirements in action was the case brought against the United Kingdom before the CJEU, where the CJEU determined that if a Member State finds that limit values under the Directive cannot be met before the AQFD deadline and seeks a deadline postponement (for a maximum of five years), that Member State is required to make an application for the postponement of the deadline by drawing up an air quality plan demonstrating how those limits will be met before the new deadline. In another recent case brought before the CJEU against Poland, the Court found that Poland had infringed EU law by exceeding the limit values for PM-10 without ensuring in its air quality plans that the period for putting an end to those exceedances was as short as possible. The Commission monitors Member States to ensure they closely adhere to the various targets and standards of the AQFD. The Commission recently sent final warnings to nine Member States (the Czech Republic, Germany, Spain, France, Italy, Hungary, Romania, Slovakia and the United Kingdom) for exceeding air pollution limits.

Industrial emissions

The Industrial Emissions Directive (IED) sets up a scheme whereby large-scale industrial installations must obtain permits in order to operate. In doing so, it aims to reduce harmful industrial emissions. Around 50,000 installations carrying out the industrial activities listed in the IED are required to operate in accordance with a permit (granted by authorities in Member States), which contain conditions set in accordance with the IED. For example, the permit must take into account the whole environmental performance of the plant (including emissions, use of raw materials and energy efficiency). The emission limit values must be based on best available techniques (BATs). BAT reference documents (BREFs) – published by the Commission – provide information on specific EU industrial sectors, the techniques and processes used in this sector, current emission and consumption levels, techniques to consider in the determination of the BAT and emerging techniques. The Commission has recently published a BREF in respect of large combustion plants.

For certain activities, such as large combustion plants, waste incineration and co-incineration plants, solvent-using activities and titanium dioxide production, the IED also sets EU-wide emission values for certain pollutants. National competent authorities may set less strict emission values in specific cases where an assessment shows that achieving the emission level associated with BATs would lead to disproportionately higher costs compared to the environmental benefits owing to geographical location, local environmental conditions or the technical characteristics of the installation. In that regard, the IED contains a certain flexibility for large combustion plants (e.g., a limited lifetime derogation). Finally, the IED requires Member States to set up a system of environmental inspections. Site visits must take place at least every one to three years, using risk-based criteria. The IED requires the public to have access to permit applications, permits and the result of the monitoring of releases.

Industrial emissions are also regulated through the Medium Combustion Plants Directive, which regulates emissions of SO2, NOx and dust from the combustion of fuels in plants with a rated thermal input equal to or greater than 1 megawatt (MWth) and less than 50MWth.

Water quality

The European Union’s regulation of water quality standards is primarily through Directive 2000/60/EC, the Water Framework Directive. Addressing both diffuse and point-source pollution, and establishing binding targets for water quantity and quality in relation to a wide range of water bodies, the Directive is both comprehensive and holistic. There is also issue-specific legislation such as the Directive on environmental quality standards (water policy) and the Directive on groundwater (requiring Member States to take all measures necessary to prevent inputs into groundwater of hazardous substances).

The Water Framework Directive contains four central provisions for pollution control standards in river basin districts – the ‘area of land and sea, made up of one or more neighbouring river basins together with their associated groundwaters and costal waters’. First, Member States ‘aim to achieve’ good surface water status, covering inland, coastal and transitional waters (including both good chemical and ecological status) by ‘ensuring a balance between abstraction and recharging of groundwater’. The CJEU has held that the obligation under the Directive to prevent the deterioration of water and to enhance water quality is legally binding. Second, Member States must ensure that all relevant discharges into surface waters are controlled by emission controls based on best available techniques, applicable emission limit values, or in the case of diffuse impacts, best environmental practices set out in other EU legislation. Member States are also obliged to cease or phase out the discharge, emission or loss of priority hazardous substances and must also progressively reduce intrinsically hazardous substances, such as heavy metals. Finally, measures must be put in place to prevent deterioration in the existing quality of surface and ground waters.

Chemicals

Chemicals are regulated at an EU level by the REACH Regulation. In principle, all chemical substances fall within the scope of that Regulation, whether they are used in industrial processes or day-to-day products, as well as products made of those substances. Moreover, REACH establishes obligations for the entirety of the supply chain. In general, to comply with REACH, companies must identify and manage the risks linked to the substances they manufacture and market or import in the European Union: they have to demonstrate to the European Chemical Agency (ECHA) how the substances can safely be used and must communicate risk management measures to users. If the risk cannot be managed, ECHA, together with the Commission and Member States, can ban hazardous substances or decide to restrict a use or make it subject to prior authorisation.

Regarding registration, companies are required to communicate a detailed registration dossier containing hazard information and, where relevant, an assessment of the risks that the use of the substance may pose and how these risks should be controlled. Registration applies to substances on their own, substances in mixtures and certain cases of substances in articles. Chemical substances that are already regulated by other legislation, such as medicines or radioactive substances, are partially or completely exempted from REACH requirements. Registration is based on the ‘one substance, one registration’ principle, which means that manufacturers and importers of the same substance have to submit their registration jointly. The special transitional regime for substances manufactured or imported at 1 to 100 tonnes per year, known as ‘phase-in’ substances, which were already manufactured or placed on the market before REACH entered into force, lapsed on 31 May 2018. Consequently, as of 1 June 2018, only substances with a valid registration (or exempted from REACH) are allowed on the EU market. Further, substances notified under the Dangerous Substances Directive are considered registered under REACH. The obligation to register substances falls on: the EU manufacturer or importer of substances on their own or in a mixture; EU producers or importers of articles meeting the criteria set out in the guidance on requirements for substances in articles; and ‘only representatives’ established in the European Union and appointed by a manufacturer, formulator or article producer outside the European Union to fulfil the registration obligations of importers. Recently, the CJEU held that substances that have been imported into the European Union but not registered under REACH – and as such are illegally in the European Union but have not been put on the EU market – may be exported outside the European Union to a third state. This export does not violate REACH.

ECHA and Member State representatives then evaluate the information submitted by companies to examine quality of the registration dossiers, any testing proposals, and to clarify whether a given substance constitutes a risk to human health or the environment.

A possible consequence of evaluation is that a substance is required to be authorised. The authorisation procedure aims at assuring that the risks from substances of very high concern (SVHCs) are properly controlled and that these substances are progressively replaced by suitable alternatives. SVHCs are those: meeting the criteria for classification as carcinogenic, mutagenic or toxic for reproduction (CMR substances); are persistent, bioaccumulative and toxic (PBT) or very persistent and very bioaccumulative (vPvB); or are identified on a case-by-case basis, for which there is scientific evidence of probable serious effects that cause an equivalent level of concern as with CMR or PBT/vPvB substances. It has recently been clarified that ECHA’s decisions to identify substances as SVHCs produces legal effects in relation to third parties because they give rise to, among other things, information obligations. After a two-step regulatory process, SVHCs may be included in the Authorisation List and become subject to authorisation. These substances cannot be placed on the market or used after a given date, unless an authorisation is granted for their specific use, or the use is exempted from authorisation. Manufacturers, importers or downstream users of a substance on the Authorisation List can apply for authorisation. Moreover, Member States, or ECHA on request of the Commission, can propose restrictions, that is to say limiting or banning the manufacture, placing on the market or use of a substance, if it is felt that a risk needs to be addressed on an EU-wide basis. A restriction applies to any substance on its own, in a mixture or in an article, including those that do not require registration. It can also apply to imports. ECHA can also propose a restriction on articles containing substances that are in the Authorisation List. In the course of the restriction process, ECHA works with experts from the Member States to provide scientific opinions on any proposed restriction that will help the Commission, together with the Member States, to take the final decision.

Solid and hazardous waste

The overarching regime for the European Union’s regulation of waste is the Waste Framework Directive. The definition of ‘waste’ for the purpose of the Directive is crucial as the Directive’s prescriptions and regulatory controls only apply to waste, but this also creates difficulties. Waste is defined in the Directive as ‘any substance or object which the holder discards or intends or is required to discard’. In its Guidance on the Interpretation of the Waste Framework Directive, the Commission gives examples in respect of the three alternatives of ‘discarding’:

  1. ‘discard’ includes items thrown into a waste bin or the transfer of material from a company to a waste collector;
  2. ‘intention to discard’ includes an operating site that indicates that it will send off-site for appropriate disposal or recovery any of its stock of raw materials that cannot be returned; and
  3. ‘requirement to discard’ includes stockpiles of banned pesticides that must be discarded and therefore must be managed as waste.

The Directive makes certain exclusions from the scope of waste, such as gaseous effluents emitted into the atmosphere, land (in situ) and uncontaminated soil. It also excludes from its scope certain materials to the extent they are covered by other EU legislation – including wastewater, animal by-products and carcasses, and mining waste. By-products of industrial processes also do not constitute waste if further use of the substance or object is certain, can be used directly without any further normal industrial processing, is produced as an integral part of the production process and further use is lawful. Finally, material ceases to be waste if it meets certain ‘end-of-waste’ criteria, such as whether a market exists for the material, or if it has undergone a recovery, including recycling, operation.

The fundamental obligations on Member States in respect of waste under the Directive are twofold. First, they must take measures to ensure that waste management is carried out without endangering human health or without harming the environment. Second, they must take measures to prohibit the abandonment, dumping or uncontrolled management of waste. The Directive also shapes waste policy in Member States by setting out a ‘waste hierarchy’, which provides ‘a priority order in waste prevention and management legislation and policy’. In descending order, the hierarchy is: waste prevention; preparing for reuse; recycling; other recovery such as energy recovery; and disposal. Waste management obligations on Member States, which apply in respect of waste producers or other holders, are also set out.

Stringent controls for hazardous waste (including, among other things, waste that is oxidising, flammable, toxic, ecotoxic, carcinogenic, mutagenic, corrosive or infectious) are also applied. Hazardous waste cannot be mixed or diluted, unless a business has a waste management permit, the operation conforms to the best available techniques and there is no increased adverse impact on human health or the environment.

Recent CJEU cases have shown that certain Member States have not only failed to implement the Directive, but also have failed to comply with CJEU judgments resulting from infringement proceedings (see Section III, supra) requiring them to adopt necessary measures to act in accordance with the Directive. The Waste Framework Directive has a series of ‘daughter’ directives: producer responsibility regimes such as under the Packaging Waste Directive, the End-of-Life Vehicles Directive, Batteries Directive and a separate Waste Shipment Regulation.

Plastics

In January 2018, the Commission adopted an EU-wide strategy on plastics, including a plan to make all plastic packaging on the EU market recyclable by 2030, a reduction of single-use plastics and restrictions on the use of microplastics. The Commission also adopted a Monitoring Framework, composed of a set of 10 indicators, which will measure progress towards the transition to a circular economy at EU and national levels.

On 28 May 2018, the Commission issued a proposal for a Directive banning or reducing 10 single-use plastics causing marine litter. Where alternatives are readily available and affordable, the Commission proposes to ban single-use plastic products from the EU market. For products without straightforward alternatives, the Commission proposes to limit their use through a national reduction in consumption, design and labelling requirements, and waste management or clean-up obligations for producers. At the time of writing, the proposal was being discussed among the institutions (the Commission, the European Parliament and the Council).

Contaminated land

Land contamination is not regulated at EU level. The Commission had proposed a Soil Framework Directive in September 2006 aimed at filling this gap and providing a common strategy for the protection and sustainable use of soil.  However, after almost eight years without the proposal being enacted into legislation, the Commission withdrew it in April 2014, with the aim of proposing legislation again in the future.

Source – Lexology: White & Case LLP

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