IED: First legislative package to implement the EU directive is available

The new EU Industrial Emissions Directive (IED) came into force on August 4, 2024 and must be implemented by the member states by July 2026. A first implementation package is now available. At the end of November, the Federal Ministry for the Environment, Nature Conservation, Nuclear Safety and Consumer Protection (BMUV) published the draft of an umbrella law and an umbrella ordinance with which large parts of the IED are to be transposed into national law. The relevance for industry is considerable: the IED affects around 55,000 installations in Europe, 13,000 of which are in Germany alone. It applies to almost all branches of industry.

These laws are to be amended by the first implementation package

Various laws are to be amended by the Mantelgesetz, in particular

• the Federal Immission Control Act (BImSchG),
• the Closed Substance Cycle Waste Management Act (KrWG),
• the Federal Mining Act (BBergG),
• and the Environmental Appeals Act (UmwRG).

The framework ordinance provides for amendments to the 4th, 5th, 9th, 11th, 17th and 44th Federal Immission Control Ordinance (BImSchV). Furthermore, a new 45th BImSchV, the IE Management Ordinance or Ordinance on the Implementation of Management Specifications and Environmental Performance Values in Industrial Plants, is to be adopted. In addition to this, the General Ordinance also contains amendments to the Landfill Ordinance (DepV), the Substitute Building Materials Ordinance (ErsatzbaustoffV) and the Waste Management Officer Ordinance (AbfBeauftrV). The intended range of amendments already shows that the IED amendment requires comprehensive adjustments to various environmental regulations. Subsequent implementation packages will have to regulate amendments to the Water Resources Act (WHG) and the TA Luft, among others.

The Mantelgesetz provides for significant changes to the BImSchG

Numerous amendments to the BImSchG are planned that will directly affect operators of IED systems. The main new feature is that plant operators will have to pay compensation if breaches of operator obligations lead to damage to health. Overall, the operator obligations under Section 5 BImSchG are to be extended. In the event of certain breaches, the operation of the plant can even be prohibited “immediately”, for example in the event of health hazards and significant environmental hazards. The licensing requirements for modular systems will be adapted and supplemented. Modular plants are characterized by a diversity and variation of process types or substance classes in production and thus guarantee competitiveness, for example in the chemical industry.

The emission bandwidths should be adhered to as strictly as possible

The new rules are intended to further reduce emissions. When new BAT conclusions come into force, the emission bandwidths should be complied with as quickly as possible and, in future, as strictly as possible. The BAT conclusions describe the “state of the art” at European level known from national law as the “best available technology”. In future, authorities should set the emission limit values at the strictest level achievable for the specific installation. The operator must then analyze the entire BAT-associated bandwidth and, on this basis, demonstrate and justify whether the values at the strictest end of the BAT-associated emission bandwidth can be achieved. Possible cross-media effects will have to be taken into account. It is also planned that the results of the monitoring of emissions from IED installations will also be made available to the public via the Internet in future. However, the grounds for exclusion under the Environmental Information Act (UIG) should apply here accordingly. Finally, in future, legal entities or associations of persons with a total turnover of more than 1.67 million euros will be subject to a turnover-based fine of up to 3 percent of their total turnover for breaches of the requirements.

Mantelverordnung: Relevant changes to existing BImSchV

In the context of the various amendments to the various BImSchV, the adjustments to the 4th BImSchV and the planned new 45th BImSchV are particularly noteworthy. For example, the scope of application of the 4th BImSchV is to be extended to additional types of plant, such as so-called gigafactories for battery production, pyrolysis plants, forging presses and plants for finishing textiles. The ordinance will also be amended for electrolysers: In future, smaller electrolysers will no longer require a permit under immission control law. Medium-sized electrolysers can be approved in a simplified procedure and only large electrolysers, i.e. those producing more than 50 tons of hydrogen per day, will require an approval procedure with public participation . In addition, various amendments to the 4th BImSchV are planned to speed up the planning process. For example, it is planned, as far as possible under European law, to always apply the simplified approval procedure and to strive for early public participation in the planning phase. Furthermore, the number of turbine types will be reduced from around 330 to 250 for reasons of simplification.

Issuance of a new 45th BImSchV

Of particular importance is the new 45th BImSchV, which is intended to flank the operator obligation for environmental management systems (EMS) provided for in the BImSchG. The introduction of an EMS is expected to be mandatory for all existing plants and for all new plants within the scope of the ordinance that are commissioned after July 1, 2027. The EMS must have certain minimum contents, in particular define environmental targets (e.g. specify waste prevention measures) and include a chemicals inventory and a transformation plan (designed for the year 2030). In addition, the 45th BImSchV imposes far-reaching publication, data collection and verification obligations with regard to the EMS, the latter in the form of an internal auditing or DIN certification obligation, among other things. The 45th BImSchV is intended to oblige plant operators to comply with “sector-specific characteristics”, i.e. the sector-specific BAT conclusions for the textile industry, ferrous metal processing industry, large combustion plants or waste treatment, for example. Until now, the German legislator has largely left the aspect of sector-specific characteristics to companies’ own responsibility and has largely refrained from specifying them in sub-legislation. This is now changing. Furthermore, the bandwidths for resource and energy consumption (so-called environmental performance values) are to be defined in the new 45th BImSchV in accordance with the respective BAT conclusions, which must then be complied with. The details are still open.

Conclusion and outlook

The planned changes to implement the amendment to the IED are far-reaching and of considerable importance for companies. In particular, companies in the energy sector, the chemical industry, commercial waste treatment and intensive livestock farming are strongly recommended to identify their own impact at an early stage and to deal intensively and promptly with the future new requirements and, in particular, their practical implementation. Despite the new elections, the implementation process is expected to continue by summer 2025 at the latest, as the implementation deadline for the IED has already passed.