In 2010, the EU adopted a directive for industry emission – the so-called Industrial Emission Directive (IED). A few years later, the Directive also became applicable in Norway, through the EEA Agreement.
Since then, the EU has worked systematically to establish so-called Best Available Techniques – BAT – for emissions technology linked to various industries. In 2019, the EU adopted BAT conclusions, with binding emission values, for the food industries. The BAT conclusions were also decided to be introduced in the EEA in December 2020. This may have consequences for Norwegian fish slaughterhouses and the Norwegian fish processing industry. It is particularly the requirements relating to process wastewater that can be challenging to comply with. The industry had a few years to readjust - but the rules will apply from December 2023. Norwegian pollution authorities may make exceptions to the limit values. The question is how they will use this access.
Binding requirements to emissions – are they adapted to Norwegian circumstances?
Norway’s commitments pursuant to IED are stated in Chapter 36 of the Pollution Control Act. Section 36-10 of the regulation states that “BAT conclusions described in Appendix II shall be used as a basis for the determination of conditions in the permit”. Furthermore, Section 36-15, first paragraph states that “emission in the permit shall be determined so that the emissions under normal operating are not above the levels connected with the best available techniques and that have been determined in the BAT conclusions described in Appendix II”.
Article 21 of the IED and Section 36-19 of the Pollution Control Act state that businesses that are included in the Directive have 4 years to readjust – and improve the compliance of the new border limits
“at the latest four years after the publication of the BAT conclusion relevant to a business included in Appendix I, the pollution control authority shall ensure that the conditions for the affected business is re-evaluated and if necessary changed so that they become in compliance with Section 36-15 and that the facility complies with these conditions.”
The BAT AEL limit values (AEL=Associated Emission levels) that the EU has determined have been criticized for the “one-size-fits-all” approach. BAT AEL for slaughterhouses are inter alia arranged based on businesses of Germany and France, where the processed water is typically released into rivers that are downstream that will also be used as a drinking water source for millions of people. The difference in Norwegian circumstances where processed water from the fishing processing industry is released into the Norwegian Sea with an enormous water exchange, dilution and decomposition – is very large. The critical level of recipients in Norwegian sea areas is essentially different from continental European inland water systems.
Warrant for exception from the emission requirements
This is precisely the reason why both the IED and the Norwegian pollution regulations allow exceptions to be made where local environmental conditions dictate that the costs of complying with BAT AEL are disproportionate to the environmental benefits. Item 16 of the preface to the IED Directive (2010/75/EU) states in a Danish translation:
“The competent authority should be able to take into account special circumstances where the application of the emission levels associated with the best available technique would entail disproportionate costs compared to the environmental benefits, by setting emission limit values deviating from the levels in question. Such deviations should be based on an assessment taking into account well-defined criteria. The emission limit values laid down in this Directive should not be exceeded. In any case, no significant pollution should be caused and a high level of environmental protection should be achieved as a whole.”
This provision is also continued in Norwegian law in Section 36-15, paragraphs 4-6 of the Pollution regulations. Here it is determined that exceptions can be made to requirements in adopted BAT conclusions:
“In special cases, and with the prerequisite that there is no environmental standard laid down in accordance with relevant EU legislation which makes stricter conditions necessary, cf. Section 36-13, an exception can be made from the first paragraph of the section here and set less strict emission limit values. Exceptions can only be made where emission limits determined in accordance with the first paragraph of the Section here would entail disproportionately large costs compared to the environmental benefits due to:
- a) the facility’s geographical location or the local environmental conditions, or
- b) technical conditions at the facility.
The emission limit values may under no circumstances be set higher than the emission limit values laid down in regulations.
Use of the exception access can only be done by individual decision.”
It must be expected that Norwegian industry organisations and Norwegian authorities will have to assess together which guidelines are to be used as a basis for possible exceptions in line with the above-mentioned rules. Ultimately, this is a political decision which, by all accounts, will end up on the Minister of Climate and Environment’s table. Many will think that it can be well argued that the cleaning requirements set in the EU’s BAT conclusions will result in a cost that is totally out of proportion to the environmental benefit.
On the Norwegian Environment Agency’s website, the following is stated:
“Permanent exemptions are not granted because the businesses basically have to meet BAT AEL sooner or later. Temporary delays to fulfil BAT AEL (after the four-year deadline) are also counted as exceptions.”
The way we see it, this is a limitation that is not anchored either in the Norwegian regulations or in the IED Directive. We believe the rules also allow for permanent exceptions. Here political leadership in the Department should make a final clarification. Imposing costs that could put jobs along the coast at risk, without this having an environmental benefit, will not necessarily always be right. The starting point must be a proportionality assessment that ensures environmental reliability.
When will the 4-year deadline be calculated from?
As already mentioned, it is stated in the pollution regulations that the deadline for introducing BAT conclusions is “four years after the publication of decisions on BAT conclusions.”
In Appendix II to Chapter 36 of the regulation it is stated that:
“BAT conclusions mean a document adopted by the EU on the basis of Article 13 of the IE Directive and incorporated into the EEA Agreement the by EEA committee decision (our emphasis)”.
It is therefore only upon the EEA committee’s decision that a BAT conclusion decision becomes applicable law in the EEA area/Norway. When the deadline rule in Section 36-19 talks about “decisions on BAT conclusions”, one would have to believe that it was the decision that determines that the BAT conclusions must be valid in our jurisdiction, which forms the starting point for the four-year deadline. The system is that the industries must have four years to adjust from the time the new rules are put into effect and then published.
Nevertheless, the Norwegian authorities have used the date when the BAT conclusions were published in the EU as a starting point for the deadline calculation. This results in an expiry of the four-year period on 04.12.2023.
The EEA Committee made its decision on 11 December 2020, and the entry into force was set from 12.12.20. In that case, the deadline for implementation of the BAT conclusions must be 12.12.2024. Although this may seem insignificant - one year more or less could mean a lot for the businesses that may have to adapt to new emission limits. The Ministry has nevertheless concluded that it is the publication of the BAT conclusions in the EU that must form the starting point for when the new rules are phased in in Norway.
The outcome of official clarifications regarding the BAT conclusions for the food industry, and any exceptions to these, are important questions. If the political goal is to secure more jobs along the coast – and to secure a greater share of Norwegian processing of Norwegian raw materials – then it will hardly help to impose expensive requirements on the industry linked to cleaning, which have dubious environmental benefits. The authorities should therefore, together with the industry, carry out a good study of whether the environmental benefit will be in relation to the costs.