• Press Release
• Events
• Search our archives

The French government implemented, by ministerial order, directive 2010/75/UE dated 24 November 2010 on industrial emissions almost one year in advance of the deadline set by the directive.

Indeed, the ministerial order n°2012-7 dated 5 January 2012 implementing Chapter II of the directive was published in the official journal on 6 January.

On several occasions, we have regretted the drawbacks of the Grenelle Environment Forum. It is therefore with satisfaction that we look at this progress which is made within the framework of Grenelle 2.

The goal of this ministerial order is to prevent and reduce pollution linked to emissions related to energy production, metals production and transformation, waste management, chemical industries etc. An exhaustive list is provided at appendix 1 of the directive 2010/75/UE. In practice, this order concerns emissions of the environmentally-sensitive facilities, which are already heavily regulated in France.

The Environmental Code is therefore supplemented with a new section applicable to environmentally-sensitive facilities. In order to prevent and reduce pollution, measures are put in place at three levels:

- Limitation of industrial emissions by reference to the “best available techniques”,

- Reinforcement of existing measures regarding polluting industries,

- Reinforcement of the site rehabilitation obligation at the end of the activity.

How can one limit industrial emissions?

Pursuant to article L. 515-28 of the Environmental Code, environmentally-sensitive facilities must be operated in such a way that the emission limit values do not exceed emission levels associated with the best available techniques. This means that the more the techniques will be advanced, the less the polluting industries will be entitled to pollute. In practice, constraints on environmentally-sensitive facilities will be higher and higher with time and technological developments.

It remains to be seen how “best available techniques” should be defined and by whom.

Article L. 515-28 of the Environmental Code refers to the “conclusions on the best techniques”. According to a report to the French President related to the Ministerial Order, such conclusions are drafted by the Commission. Therefore, we may think that these conclusions refer to BREF, i.e. reference documents related to the best available techniques published by the European Commission for each type of activity. However, Noémie Fradet, the rapporteur of the draft order before the High Council for Prevention of Technological Risks, specified that, in practice, BREF will not be the reference. No other information is available on this question yet.

What means of control are put in place?

Article L. 515-28 of the Environmental Code also provides for the periodical re-examination of the operating conditions of environmentally-sensitive facilities in order to take into account the evolution of best available techniques. Therefore, it seems that the adoption of new conclusions on the best available techniques lead to a re-examination of the operating conditions of environmentally-sensitive facilities.

A re-examination is also performed in two other cases:

 - When the operator of the environmentally-sensitive facility requests a derogation allowing industrial emissions above the values authorized by the conclusions on the best available techniques,

- When the pollution caused by the environmentally-sensitive facility is so high that it is necessary to review emission limit values or to establish new emission limit values.

This re-examination of the operating conditions is subject to public enquiry in the two above-mentioned cases. It is a procedure whereby the public is invited to give its opinion on the project. This is not new since it was already performed when an application requesting the authorization to operate a new environmentally-sensitive facility was filed. The only new item is that now, reexamination is also subject to public enquiry.

However, this public enquiry will be put in place as of 1 January 2019. In the mean time, the information provided in relation to the public enquiry will be merely made available to the public who will be able to make comments (article L. 515-29 II of the Environmental Code).

Rehabilitation of the site at the end of the activity

Article L. 515-30 of the Environmental Code provides for a new obligation for operators of environmentally-sensitive facilities in relation to the rehabilitation of the site at the end of the activity. Indeed, a report must now be drafted describing:

 - For new facilities: the state of the site where the environmentally-sensitive facility is located, before the start of its operation (i.e. at the time of the application requesting the authorization to operate); or

- For existing facilities: the state of the site where the environmentally-sensitive facility is located, at the time of the first re-examination.

Let’s not forget that when site rehabilitation is concerned, the only criterion until now was the “rehabilitation in accordance with it future use”. The rehabilitation obligation is reinforced since two cumulative conditions now coexist:

- The future use of the site;

- Its state at the time of its first operation for new facilities, or its state at the date of the first re-examination for existing facilities.

Finally, a decree of the Council of State (décret en Conseil d’Etat) will define the implementation conditions of these new provisions. It will in particular define the re-examination conditions as well as the rehabilitation conditions. We will definitely further develop this short study once the decree is published.