0521883989 cambridge university press implementing EU pollution control law and integration apr 2008

For example, the implementation of aspects of the EUDirective on Integrated Pollution Prevention and Control IPPC involvesconstant debate and contestation between the interested parties

This book examines the role of law in European Union

integration processes through a detailed analysis of the

implementation of the EU Directive on Integrated PollutionPrevention and Control at European level and in the UK andGermany It questions traditional conceptions which perceivelaw as the ‘formal law in the books’, as instrumental and asrelatively autonomous in relation to its social contexts The bookalso discusses in depth how the key legal obligation of theDirective, to employ ‘the best available techniques’, is actuallyimplemented

This research locates the analysis of the implementation ofthe IPPC Directive in the wider context of current politicalscience and sociology of law debates about the role of law in

EU integration processes, the nature of EU law, new modes

of governance and the significance of ‘law in action’ for

understanding legal process

B E T T I N A L A N G Eis a Lecturer in Law and Regulation at the Centrefor Socio-Legal Studies, University of Oxford

This series aims to produce original works which contain a critical analysis ofthe state of the law in particular areas of European Law and set out differentperspectives and suggestions for its future development It also aims to encour-age a range of work on law, legal institutions and legal phenomena in Europe,including ‘law in context’ approaches The titles in the series will be of interestto: academics; policymakers; policy formers who are interested in Europeanlegal, commercial, and political affairs; practising lawyers including the judi-ciary; and advanced law students and researchers.

Joint Editors

Professor Dr Laurence Gormley

Rijksuniversiteit Groningen, The Netherlands

Professor Jo Shaw

University of Edinburgh

Editorial advisory board

Ms Catherine Barnard, University of Cambridge

Professor Richard Bellamy, University of Reading

Professor Marise Cremona, Queen Mary College, University of London

Professor Alan Dashwood, University of Cambridge

Dr Andrew Drzemczewski, Council of Europe, Strasbourg, France

Professor Dr Jacqueline Dutheil de la Roche`re, Universite´ de Paris II,

Director of the Centre de Droit Europe´en

Sir David Edward KCMG, QC, former Judge, Court of Justice of the EuropeanCommunities, Luxembourg

Professor Dr Walter Baron van Gerven, Emeritus Professor, Leuven & Maastrichtand former Advocate General, Court of Justice of the European CommunitiesProfessor Daniel Halberstam, University of Michigan

Professor Dr Ingolf Pernice, Director of the Walter Hallstein Institut, HumboldtUniversita¨t, Berlin

Michel Petite, Director General of the Legal Service, Commission of the EuropeanCommunities, Bruxelles

Professor Dr Sinisa Rodin, University of Zagreb

Professor Neil Walker, University of Aberdeen and EUI, Fiesole

EU Enlargement and the Constitutions of Central and Eastern Europe

Anneli Albi

Social Rights and Market Freedom in the European Economic Constitution:

A Labour Law Perspective

European Broadcasting Law and Policy

Lorna Woods and Jackie Harrison

Transforming Citizenship? The European Union, Electoral Rights and the Restructuring

of European Political Space

Jo Shaw

Implementing EU Pollution Control: Law and Integration

Bettina Lange

Implementing EU Pollution Control

Law and Integration

Bettina Lange

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São PauloCambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK

First published in print format

ISBN-13 978-0-521-88398-6

ISBN-13 978-0-511-38634-3

© Bettina Lange 2008

2008

Information on this title: www.cambridge.org/9780521883986

This publication is in copyright Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press

Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate

Published in the United States of America by Cambridge University Press, New York

www.cambridge.org

eBook (EBL)hardback

5 Talking interests – generating procedure:

How political discourse constructs key aspects

7 What does it cost? Economic discourse in the

determination of ‘the best available techniques’

8 Does ‘law’ integrate? Licensing German

and English coke ovens under the IPPC Directive 227

Series editors’ preface

Implementing EU Pollution Control is an important book contributing to thesociology of (EU) law It combines a radical reconceptualisation of therelationship of law and integration in the context of EU integrationstudies, drawing upon the sociological and critical theories, with anextended case study looking at the ‘law in action’ in the environmentalfield Eschewing ‘grand theories’ of European integration or of the role

of law in European integration, it takes as its central question the role oflaw in European integration However, it proceeds not by treating law as

a static unchanging concept (the ‘law in the books’) but by focusing onthe micro specifics of ‘law in action’, specifically the implementation of

EU pollution control in the hands of national officials in Germany andthe UK The claim is not so much that law ‘integrates’ (or indeed that itdoes not), but rather that the issue of the role of law in the context of thesocial, economic and political processes occurring in relation to the EU

is above all an empirical one, and not resolvable either by application oflegal reasoning techniques or by grand theorising

The book is therefore an important step forward in analysis, ing both a rigorous theoretical framework with detailed and carefulempirical work, based on extensive interviews with pollution controlofficials in the UK and Germany It challenges traditional theoriesregarding the relationship between law and integration, which treatlaw as a static independent variable and fail to account for the broaderimage of law which has emerged through socio-legal studies and criticallegal studies over a number of decades It uses instead a law in actionanalysis, which is novel in the field of EU legal studies, where there hasthus far been very little work which has brought the insights andmethods of socio-legal studies to bear upon the empirical detail of theimplementation of EU law What is important about the empirical work

combin-xi

is that it reveals EU law in action to be a work in progress, not a staticstate of affairs For example, the implementation of aspects of the EUDirective on Integrated Pollution Prevention and Control (IPPC) involvesconstant debate and contestation between the interested parties includ-ing both national officials and other social actors around best practicesand the determination of the all important ‘best available techniques’for limiting pollution from installations Specifically, however, theanalysis draws upon Foucauldian notions of power in relation to dis-course and language in order to identify the specific ways in whichnorms are formed and transformed in the context of implementation.

We are delighted to be publishing Implementing EU Pollution Control inthe Cambridge Series on European Law and Policy not only as a contribution

to EU legal studies, but also as a contribution to understanding law inrelation to EU integration more generally, and, indeed, as an importantcontribution to socio-legal studies

Laurence Gormley

Jo Shaw

The research for this book has been funded through grants from theGerman Academic Exchange Service, Aberystwyth University ResearchFund and the UK Socio-Legal Studies Association Writing up of theresearch was facilitated through a Jean-Monnet Fellowship at theEuropean University Institute, Florence, Italy and through researchleave granted by Keele University I am grateful to these organisationsfor their financial support

I would also like to acknowledge helpful feedback and commentsfrom participants at the annual UK Socio-Legal Studies Association con-ferences at which sections of this book were presented as papers, fromcolleagues at Keele during law school staff seminars and participants inthe Hart Legal Workshops 2006 and 2007 at the Institute of AdvancedLegal Studies, University of London

I would like to thank Nicholas Walker for reading the entire script and providing detailed suggestions for improving my Englishlanguage writing Mary Ewert, Katrin Wiegand and Gillian Potter-Merrigan provided excellent professional transcription services for theinterviews with UK and German licensing officers

manu-Special thanks go to the UK and German permitting officers, as well asthe BREF writers who participated in the study and who gave generously

of their time while being busy at work For confidentiality reasons theyhave to remain anonymous The views expressed in this book are myown and do not necessarily reflect the perspectives of the individualsand organisations who participated in the research on the implementa-tion of the IPPC Directive

Bettina LangeKeele, April 2007xiii

Update on the IPPC Directive

Since delivery of the typescript of this book to Cambridge UniversityPress in April 2007 there have been further developments in relation tothe IPPC Directive The EU Commission’s Communication from 2003

‘On the Road to Sustainable Production: Progress in ImplementingCouncil Directive 96/61/EC concerning integrated pollution preventionand control’ started a consultation process on the further development

of the IPPC Directive (referred to in chapter 1) By the end of 2005 theCommission had also commissioned various consultants’ projects formore detailed information input into the reform process The EUCommission is currently examining the results of this consultation.This will be concluded at the end of 2007 and a revision of the IPPCDirective may be proposed

The review is not intended to change the underlying principles of theIPPC Directive Some smaller technical amendments have been dis-cussed such as the clarification of terms currently used in the text ofthe Directive as well as questions of scope, such as whether particularwaste treatment plants should also be covered by the IPPC Directive.There is also a proposal to tighten up the exchange of information aboutthe best available techniques among member states and industry which

is organised by the Commission under Art 16 (2) of the IPPC Directive.Member states may be required to submit to the Commission infor-mation on pollution abatement techniques used in plants within twomonths of the request But the reform of the IPPC Directive alsoaddresses wider associated issues, such as the impact of its implemen-tation on the competitiveness of industry in the EU A new consultants’study has been commissioned which will examine whether implemen-tation of the IPPC Directive distorts competition between those plants

in an industrial sector which are covered by the Directive and those that

xiv

are not because their activities fall below the threshold specified inAnnex I to the Directive The study will also consider impacts of theIPPC Directive on the competitiveness of small- and medium-sized busi-nesses and whether different national approaches to its implementa-tion distort competition between member states The review is alsoexploring how operators of industrial facilities can be encouraged –for instance through economic incentives – to go beyond regulatorycompliance with the minimum requirements of the best available tech-niques standard and to strive for continuous improvement in theirpollution control procedures.

Finally, the current review process is also considering various optionsfor streamlining and clarifying interactions between the IPPC Directiveand other EU industrial emissions control legislation Legal obligationsimposed by the IPPC Directive overlap with other EU emissions controllegislation, such as the Large Combustion Plant Directive 2001/80/EC,the Waste Incineration Directive 2000/76/EC, the Solvent EmissionsDirective 1999/13/EC, the Landfill Directive 1999/31/EC and the Seveso

II Directive 1996/82 Moreover, nitrogen oxides and sulphur dioxideemissions are controlled both under the IPPC Directive and possible

EU and national, such as the Dutch and Slovakian trading schemes forthese emissions Streamlining, which also promotes the wider EU pro-gramme of ‘simplifying legislation’, addresses whether authorisationrequirements imposed upon operators are compatible under these var-ious legal regimes Streamlining could take a number of forms, such asthe implementation of related EU emissions control legislation throughthe BAT standard in IPPC permits Another option involves the integra-tion of various pieces of EU emissions control legislation into the IPPCDirective, and hence to create a new single Framework Directive onindustrial emissions with a broad scope

The current IPPC reform process has implications for the researchfindings discussed in this book The closer integration of the IPPCDirective with other EU industrial emissions control legislation willrender the best available techniques (BAT) technology standard prob-ably even more central to EU emissions control Further empiricalanalysis will be needed in order to understand how streamlining mayaffect the way BAT standards are determined in practice The bookargues that BAT standards sometimes simply remain open It remains

to be seen whether a more direct and explicit link between the legalobligations of the IPPC Directive and those of other EU emissions con-trol legislation will help to bring about closure in definitions of the BAT

standard The current reform of the IPPC Directive also further lights key themes discussed in this book The reform process seeks toenhance the effectiveness of the IPPC Directive The book is scepticalabout the potential of law to regulate in an instrumental fashion andhence it will be interesting to see whether a revised IPPC Directive willreally deliver the intended specific regulatory outcomes Moreover theIPPC Directive reform process sheds further light on issues that arecentral to this book’s account of the Directive The Commission willcompile further, more recent information about potential variation inthe ways in which member states implement the IPPC Directive Thebook suggests that there are some differences in the way in which the

high-UK and Germany implement the Directive Finally reform of the IPPCDirective through provisions which will encourage operators to gobeyond regulatory compliance with a minimum BAT standard furtherstrengthens a key characteristic of BAT also discussed in this book, i.e.that BAT is a dynamic, not a static fixed technology standard and hencecan be plant specific

Bettina LangeOxford, October 2007

ALARA As Low as Reasonably Achievable, an alternative

technology standard to ‘the best available techniques’

BATNEEC Best Available Techniques Not Entailing Excessive

Cost, as referred to in section 7 of EPA 1990BimSchG Bundesimmissionsschutzgesetz, German federal air

immissions control law

4 BimSchV Vierte Bundesimmissionsschutzverordnung, fourth

German federal air immissions control regulation.This lists the plants which require a licence under theBundesimmissionsschutzgesetz and includes the plantslisted in Annex I of the IPPC Directive

BMU Bundesministerium fu¨r Umwelt, Naturschutz und

Reaktorsicherheit, German federal environmentalministry

BREF Best Available Techniques Reference DocumentCDQ Coke Dry Quenching, a technique for cooling coke

through dry inert gasesCEFIC European Chemical Industry Council, a trade

association which represents the interests of thechemical industry in the EU

CSQ Coke Stabilisation Quenching, a technique for

cooling coke through wet quenching, i.e spraying ofthe hot coke with water

DEFRA Department for the Environment, Food and Rural

Affairs

DG Directorate General of the EU Commission

xvii

EA Environment Agency for England and Wales

EIPPC Bureau European IPPC Bureau, Seville, Spain

EPOPRA Environmental Protection Operator and Pollution

Risk Appraisal

EURATOM European Atomic Energy Community

EUROFER European Confederation of Iron and Steel Industries,

trade association which represents the interests ofthe EU iron and steel industry

IPC Integrated Pollution Control under Part I of the UK

Environmental Protection Act 1990IPPC Integrated Pollution Prevention and Control under

the EU IPPC DirectiveIPTS Institute for Prospective Technological Studies,

Seville, Spain It hosts the EIPPC Bureau and is one ofthe seven scientific institutes of the EuropeanCommission’s Joint Research Centre

KrW-/AbfG Kreislaufwirtschafts- und Abfallgesetz, German federal

waste management ActLUA Landesumweltamt (Land environmental protection

agency)

OMC Open Method of Coordination, a new governance tool

employed by the EU in order to coordinate activitiesbetween Member States in areas deemed politicallysensitive and/or where the EU has limited legalcompetencies

OSPAR 1992 OSPAR Convention on the protection of the

marine environment of the North-east Atlantic

PM Particulate matter, i.e dust

PPC Regs Pollution Prevention and Control (England and

Wales) Regulations 2000, SI 2000 No 1973

SEPA Scottish Environment Protection Agency

SPG Strategic Permitting Group, group set up by the UK

Environment Agency for the centralised licensing ofIPPC plants

TA Technische Anleitung, technical instruction, tertiary

rules defining the BAT standard in Germany

AuthorityUNICE Union of Industrial and Employers’ Confederations of

Europe, now called ‘Business Europe, Confederation

of European Business’ It represents EU industry andemployers’ interests

VDI Verein Deutscher Ingenieure, Association of German

EngineersWHG Wasserhaushaltsgesetz, German federal water law

What is law in European Union integration?

This book discusses relationships between law and integration It ses on legal integration in the European Union By integration I mean:1the process whereby political actors in several distinct national settings arepersuaded to shift their loyalties, expectations and political activities toward anew centre, whose institutions possess or demand jurisdiction over the pre-existing national states

focu-(Haas,1958: 16)This definition recognises the interplay between various dimensions ofintegration The shifting of loyalties, expectations and political activ-ities towards a new EU centre also reveals a social aspect to EU integra-tion Political dynamics are analysed through reference to the building

of new EU institutions (Wiener and Diez,2004: 1) In discussing law andintegration relationships this book focuses on the question: what is law

in European Union (EU) integration? The book’s emphasis is thus onanalytical rather than normative issues It departs from a currentemphasis on normative concerns in EU integration studies, framed bylawyers as issues of control, accountability, transparency and legiti-macy in the exercise of power in the EU (Armstrong and Shaw,1998:148; Wincott,1995) While the empirical data discussed in this bookshed light on these normative concerns, the book’s main goal is toadvance an understanding of the nature of law in EU integration pro-cesses The book questions conceptualisations of law as formal, instru-mental and relatively autonomous from its social contexts It analyseslaw and society relationships in the context of EU integration withoutdeveloping normative claims about how law and society shouldinteract.2

The question ‘what is law in EU integration?’ raises two issues First,how can we conceptualise law in EU integration processes? What idea of

‘law’ are we invoking when we say that ‘law’ is implicated in EUintegration? Second, what is the role of law in comparison to otheraspects, such as economic, political, technical and social drivers of EUintegration processes? Is there a clearly separate legal dimension to EUintegration which can be distinguished from political, economic, tech-nical and social dynamics? Answers to the first question will haveimplications for the second question about links between legal andother dimensions of EU integration

So why do these questions matter? It is clear that law is central to EUintegration For some analysts legal integration is even the first impor-tant form of Europeanisation (Stone Sweet, 2004: 240) Both primarylegislation, such as the Treaties establishing the European Union, aswell as secondary legislation are crucial to integration Secondary legis-lation is particularly central to the EU’s capacity to govern, since EUinstitutional actors only have limited use of other tools of government,such as taxation, redistribution and direct law enforcement It seemsthat law is even becoming more important in EU integration, due to therise in judicial governance by the European Court of Justice and theCourt of First Instance (ibid.: 7) Demand for rule clarification, monitor-ing and enforcement by the European Courts is increasing, also due tothe constitutionalisation of the Treaties (ibid.: 238) Juridification andespecially judicialisation are often perceived as crowding out the social,political and economic dynamics of EU integration This book questionsthis perspective by examining the inclusion of technical, political andeconomic dynamics in the construction of ‘law’ By examining these

‘contexts in law’, the book seeks to contribute to ‘EU law in context’debates It starts from the idea that law is central to processes of inte-gration in the EU But it is by no means clear what conception of law canbest explain the outcomes of integration There is as yet no EU state.Hence, traditional, modern conceptions of state law developed in asso-ciation with the rise of the nation state in Western Europe in the eigh-teenth and nineteenth century have limited application Moreover,social actors involved in EU integration processes do not necessarilyhave a clear, settled view of the nature of EU law There was lively andcontroversial debate among German and UK permitting officers whoissue licences for plants regulated under the EU Directive on IntegratedPollution Prevention and Control (IPPC), which is at the heart of thebook’s empirical analysis There was also debate among engineers in EU

technical working groups, civil servants in national environmentaladministrations, as well as operators, about the nature and key charac-teristics of the technology standard imposed by the IPPC Directive.Finally, asking ‘what is law in EU integration?’ matters because how

we conceive law shapes how we think about its role in EU integration.Hence, analysing the nature of EU law, including rendering assump-tions about law explicit, can contribute to the development of EUintegration theories But how does the book seek to analyse the nature

of law in EU integration?

Law and integration relationships through the prism

of the EU Directive on Integrated Pollution Prevention and Control

Key features of the IPPC Directive

This book addresses the question ‘what is law in EU integration?’ through

an analysis of the implementation of the EU Directive on IntegratedPollution Prevention and Control (96/61/EC) The IPPC Directive estab-lishes a pollution control regime that seeks to prevent and minimiseemissions in relation to air, water and land from new and existing3mainlylarge industrial4operators The Directive also regulates further environ-mental impacts through requirements on energy efficiency, waste mini-misation, noise, accident prevention and site restoration after installationclosure.5 Control of all of these releases is achieved in an integratedmanner through one single IPPC permitting procedure.6 IPPC permitconditions further specify operators’ obligations They are set with refer-ence to a technology standard According to Art 3 of the IPPC Directivemember state regulatory authorities shall ensure that operators employthe ‘best available techniques’ (BAT) in order to prevent emissions to allthree environmental media, air, water and land Art 2 (11) of the Directiveprovides only a rudimentary definition of ‘the best available techniques’:BAT shall mean the most effective and advanced stage in the development ofactivities and their methods of operation which indicate the practical suitability

of particular techniques for providing in principle the basis for emission limitvalues designed to prevent and, where that is not practicable, generally toreduce emissions and the impact on the environment as a whole

So, how are ‘the best available techniques’ defined in practice? The BATstandard is further specified at the EU, member state and local

permitting level At the EU level Art 16 (2) of the IPPC Directive requiresthe Commission to organise an ‘exchange of information’ on whatconstitute ‘the best available techniques’:

The Commission shall organize an exchange of information between memberstates and the industries concerned on best available techniques, associatedmonitoring, and developments in them Every three years the Commissionshall publish the results of the exchanges of information.7

The IPPC Directive does not specify how this information exchange is to

be organised The EU Commission has therefore developed its ownprocedure (Emmott et al 2000) It has set up Technical WorkingGroups (TWGs), one for each of the industrial sectors covered by theIPPC Directive.8 These TWGs comprise representatives from memberstates’ environmental administrations, often from permitting author-ities, such as chemists and engineers with experience in licensingindustrial installations TWGs also include industry representatives,such as staff from the Confederation of European Business (UNICE),9

or sector-specific EU-wide trade associations,10 and sometimes sentatives drawn directly from large industrial operators According toArt 16 (2) IPPC Directive member states and industry representativesparticipate in the information exchange But upon its own initiative theCommission also invites environmental NGOs to participate in TWGs.The Commission has also set up and chairs the Information ExchangeForum (IEF) In terms of composition this forum nearly mirrors theTWGs It comprises member states’ representatives from the higherlevels of their environmental administrations, such as national environ-mental ministries, as well as industry and environmental NGO mem-bers While the TWGs are to focus on specific technical issues, the IEF ismeant to deal with wider EU policy decisions in the determination of

repre-‘the best available techniques’ The results of this information exchangeare published by the Commission11 as BAT reference documents(BREFs).12There is one ‘vertical’ BREF for each industrial sector covered

by the IPPC Directive, such as the production of non-ferrous metals,inorganic chemicals, cement and lime as well as iron and steel, to name

a few of the sectors covered by the IPPC Directive.13All vertical BREFsare structured in six chapters which report the same type of informa-tion for the different sectors.14While the first chapter contains ‘GeneralInformation’ about the industry, including its size, economic con-straints, markets and production sites, the second chapter reviews

‘Applied Processes and Techniques’ in the industry The third chapter

reports the emissions as well as raw material, energy and water sumption which are associated with the production and pollution con-trol techniques under review in the BREF The fourth chapter thennarrows down the range of techniques which have been considered inthe third chapter to just those techniques which will be considered

con-in the determcon-ination of BAT.15The fifth and main BREF chapter presentsthe BAT conclusion This consists of a recommendation of one or severaltechniques which are considered to constitute ‘the best available techni-ques’ for the sector This chapter also provides information about theemissions which are associated with the use of these techniques.16 Afinal sixth chapter identifies ‘emerging techniques’.17According to Art

2 (11), last sentence and Annex IV No 12 of the IPPC Directive localmember state permitters have to take into account these BREFs whendetermining BAT for specific plants, but are not bound by them

Amendments of the IPPC Directive

The IPPC Directive was passed on 24 September 1996 It was published

on the 10 October in the Official Journal of the EU and came into force

on the 30 October 1996.18 It has been amended twice In order toconsolidate and clarify the Directive text the EU Commission has nowput forward a proposal for the codification of the Directive This inte-grates the two amendments into the text of the IPPC Directive.19ThePublic Participation Directive 2003/35/EC required member states toensure that members of the public are given ‘early and effective oppor-tunities’ to participate in IPPC permitting.20It also added Annex V to theIPPC Directive which lists a range of criteria governing public partic-ipation The public must now also be consulted in relation to draftpermits This enhances citizens’ opportunities for input into the permit-ting process Before this amendment the public only had a right tocomment on permit applications The possibility for citizens to comment

on draft permits opens up what is often a closed process of permitnegotiation between regulators and operators Moreover, para 2 ofAnnex V strengthens and extends citizens’ rights of access to a range

of information used in IPPC permitting It also supports rights of access

to justice, thus enabling challenges before the courts to decisions madeunder the IPPC Directive.21 The second amendment of the IPPCDirective occurred through Directive 2003/87/EC on emissions trading.This Directive establishes that for installations regulated both under theIPPC and the EU Emissions Trading Directive no emission limit values will

be imposed for greenhouse gases traded under Directive 2003/87/EC.22

Moreover, member states will not be required to impose energy ciency requirements for installations within the jurisdiction of both theIPPC and the EU Emissions Trading Directive This potentially weakensthe IPPC Directive’s contribution to combating climate change (ENDSReport No 319, August 2001: 17).

effi-Last but not least, as required by Art 16 (3) of the IPPC Directive, the

EU Commission is now reviewing the Directive It has started a tation process with member states, industry and other interestedgroups to discuss revisions The Commission is considering a moreharmonised approach to setting emission limit values in IPPC permits,also through more detailed requirements in the Directive text.23 Thereview also addresses how to clarify interactions between the IPPCDirective and possible EU or national emissions trading schemes fornitrogen oxides and sulphur dioxide emissions from large industrialoperators The Commission review includes a search for tools whichcould stimulate plant operators to go beyond ‘mere compliance’ withthe Directive and to further improve the environmental performance oftheir installations A final report of this ongoing review process isexpected in 2007 Having outlined key features of the IPPC Directive,including its amendments, I now turn to a discussion of its implemen-tation in the UK and Germany

consul-Implementation of the IPPC Directive in the UK and Germany

The practical implementation of the IPPC Directive is not withoutproblems The Commission has started infringement proceedingsunder Art 226 EC Treaty against a number of member states.24 The

EU Commission brought a successful case against the UK for failure toimplement the IPPC Directive in time – by 30 October 1999 – inNorthern Ireland and in Great Britain in relation to off-shore installa-tions (ENDS Report No 326, March2002) But an EU Commission report

on progress with implementing the Directive across the EU – four yearsafter the expiry of the 30 October 1999 deadline – noted that so far onlythe UK had incorporated correctly all aspects of the Directive (COM(2003) 354).25 The EU Commission is now seeking to speed up imple-mentation of the Directive It has issued guidance to member statesadvising on the interpretation of certain key provisions of theDirective, such as the capacity thresholds in Annex I to the Directivewhich specify what production capacity a plant has to have in order to

be regulated by the Directive The Commission has also set indicatorsmeasuring the number of permits issued for existing installations, in

order to monitor progress of member states in meeting the deadline of

30 October 2007 by which existing installations must also comply withthe requirements of the IPPC Directive (First Report on the implemen-tation of the IPPC Directive, 3 November 2005, COM (2005) 540 final,

p 8) But how have Germany and the UK actually implemented the IPPCDirective so far?

Implementation of the IPPC Directive in Germany

Key actors

Key policy decisions about the implementation of the IPPC Directive

in Germany were taken by the federal environmental ministry.26

It provided the draft for the Artikelgesetz which implements theIPPC Directive into German national law, by amending the mainfederal air immissions control statute, the Bundesimmissionsschutzgesetz(BimSchG), the main federal water pollution control statute, theWasserhaushaltgesetz (WHG) and the major federal waste managementstatute, the Kreislaufwirtschafts- und Abfallgesetz (KrW-/AbfG) In accord-ance with para 48 BimSchG the German federal environmental minis-try also presented to the upper chamber of the German Parliament, theBundesrat,27a revised version of the technical instructions for air, the

TA Luft These flesh out the meaning of the BAT technology standard inGerman environmental law, especially for installations with significantemissions into the air For discharges into water there is secondarylegislation, the Verordnung u¨ber Anforderungen an das Einleiten vonAbwasser in Gewa¨sser28which specifies in forty-five appendices ‘the bestavailable techniques’ for specific areas of industry There are also tech-nical instructions (TA) which develop BAT standards for waste manage-ment facilities dealing with hazardous wastes (TA Abfall) There are alsoseparate technical instructions listing BAT measures for installationswhich reuse, treat or dispose of household wastes (TA Siedlungsabfall).Furthermore, there are technical instructions which deal with noiseemissions (TA La¨rm)

In contrast to the UK there is no single unified regulator in Germanyresponsible for permitting IPPC installations Different sections of thevarious environmental administrations in the relevant Bundesland issuepermit conditions relating either to emissions to air, water or land.Hence, Germany has taken advantage of Art 7 of the IPPC Directivewhich states that an ‘integrated approach to permitting’ only requirescoordination of the conditions and procedure for the granting of IPPC

permits, where more than one competent authority is involved Para.

13 of the BimSchG provides a so-called limited ‘concentration effect’,29according to which a range of other relevant permits for the construc-tion and operation of an IPPC installation, such as planning permis-sion,30are included in the IPPC permit issued under para 4 BimSchG.German IPPC permits include conditions in relation to releases to airand land But discharge consents for emissions to surface waters underthe WHG and to sewers are issued separately and thus are not included

in this limited concentration effect under para 13 BimSchG Underpara 10 (5), second sentence, the German IPPC licensing authorityhas to ensure, however, a ‘full coordination’ of the media-specific licen-sing procedures and the conditions affecting different environmentalmedia in an IPPC licence.31But this does not grant a right to the IPPClicensing authority to override or impose its view of what amounts toappropriate coordination of licence conditions in the case of differingviews held by the licensing authority and the water authority (Kloepfer,

2004: 1278) Hence, Germany’s implementation of the IPPC Directive

is an example of an approach to permitting which is not fullyintegrated

Who exactly becomes involved in permitting German IPPC tions varies according to the particular Bundesland32in which the plant

installa-is situated.33The administrative structures, including the tal administration, varies between the different Bundesla¨nder TheBundesland in which the empirical research was carried out has athree-tier administrative structure The first tier of the environmentaladministration consists of the Landesumweltministerium, the Land envi-ronmental ministry, which is part of the Land government.34Especially

environmen-in the case of large, politically significant operators, the Land mental ministry can become indirectly involved in the IPPC permittingprocess.35District governments36are the second administrative tier inmost of the German La¨nder.37 In the Land in which the research wascarried out the district government is responsible for licensing IPPCinstallations City authorities38 and communes39 constitute the thirdand lowest level of the administration They can be consultees in IPPClicensing procedures

environ-Key procedures

In contrast to the UK, Germany has not issued national ‘best availabletechniques’ guidance documents to permitting authorities Instead,fairly media specific regulations, which are binding upon permitters,

have been revised, also in order to incorporate the IPPC Directive intonational law Key among these are the revised technical instructions onair emissions, the so-called TA Luft of 24 July 2002 There are alsotechnical instructions on noise, waste water, land, waste and householdwaste.40

Permitting of new IPPC installations is carried out in Germany underpara 4 of the BimSchG Regulations issued under the BimSchG,41theso-called 4 BimSchV, list all the installations which are covered by theGerman IPPC regime.42Existing plants are brought under IPPC controlthrough amendments of their existing BimSchG permits under para 17BimSchG.43 According to para 6 (1) BimSchG, once operators demon-strate in their permit application that they can fulfil the requirements

of para 5 BimSchG – which replicates the ‘basic obligations of theoperator’ from Art 3 of the IPPC Directive – the German regulatoryauthority has to grant the IPPC permit Hence, once the operator com-plies with the requirements of Art 5 BimSchG he has a right to the IPPCpermit This also strengthens the operator’s bargaining position inpermit negotiations with the regulatory authority In contrast to this –and potentially closer to the text of the IPPC Directive – the UK regu-lator exercises discretion under Reg 10 (2) of the PPC Regs (Englandand Wales) 2000 when deciding whether to grant or refuse the oper-ator’s application for an IPPC permit This is the case even if theoperator has fulfilled all the duties arising from Art 3 of the IPPCDirective

The BAT technology standard from the IPPC Directive is implemented

in German national law through para 5(2) BimSchG It requires IPPCinstallations to prevent detrimental impacts on the environment inparticular through employing ‘the best available techniques’ (‘Standder Technik’).44The term ‘Stand der Technik’ referred also to the tech-nology standard required under the BimSchG before the implementa-tion of the IPPC Directive Hence, use of the same term – ‘Stand derTechnik’ – for the new and slightly different IPPC BAT technologystandard builds a degree of continuity between the previous and thenew German IPPC pollution control regime Some commentators per-ceive the IPPC BAT standard as less onerous than the previous Germantechnology standard, because the former is considered to provide morescope for cost considerations in the definition of the ‘best availabletechniques’ (Winter, 1999: 77; Kloepfer, 1998: 144, 929) Having out-lined key elements of the incorporation of the IPPC Directive inGermany, I will now turn to its implementation in the UK

Implementing the IPPC Directive in the UK

Key actors

Key policy decisions about the implementation of the IPPC Directive inthe UK were taken by the Department for the Environment, Food andRural Affairs (DEFRA) in consultation with the Environment Agency(EA) The Department drafted the two key legal instruments which imple-ment the IPPC Directive in the UK First, the Pollution Prevention andControl Act 199945provides a basic framework for the implementation ofthe IPPC Directive in the UK It is fleshed out through the more detailedprovisions of the Pollution Prevention Control (England and Wales)Regulations 2000 (PPC Regs.) made under section 2 of the PPC Act

1999.46In the UK the Environment Agency for England and Wales (EA)and the Scottish Environment Protection Agency (SEPA) administer theIPPC system for about 85 per cent of installations regulated through theIPPC Directive, known as Part A (1) installations (Bell and McGillivray,

2006: 774) UK local authorities administer IPPC pollution control for asmall number of less polluting IPPC installations, also known as Part A (2)installations.47

Initially EA area offices issued licenses for IPPC installations This,however, was additional work for area officers who otherwise supervisesites and enforce legal regulation Hence, in order to speed up imple-mentation of the IPPC Directive the EA set up four strategic permittinggroups (SPGs) which focus exclusively on the permitting of IPPC sites.48New staff have been recruited to these SPGs and area officers have beenseconded to them Moreover, the EA involves environmental consultan-cies in IPPC permitting work Consultants prepare draft permits whichare checked and finally issued by the EA The data for the empirical part

of the research were collected from one of the four SPGs in England.Having outlined key actors involved in the implementation of the IPPCDirective in the UK I now want to consider the key procedures throughwhich the Directive is applied in the UK

Directive itself Reg 11(2) of the PPC Regs requires operators to take allmeasures to prevent pollution of the environment as a whole, in partic-ular through the application of BAT In order to flesh out the IPPC BATtechnology standard, the Environment Agency has issued UK nationalguidance documents for the different sectors regulated by the IPPCDirective These follow the format of the EU BREF documents.49 Likethe EU BREFs these ‘Sector Guidance Notes’ are not binding upon UKpermitting officers, but are usually taken into account when BAT isdetermined in specific IPPC permits The UK Sector Guidance Notesdescribe various BAT techniques and specify emission limit values forBAT technologies But it is a hallmark of the UK approach that a focus oncompliance with emission limit values should not replace the applica-tion of flexible BAT to an installation as ‘the real standard’ (Bell andMcGillivray,2006: 780).50 This is in contrast to the German approachwhich focuses on compliance with emission limit values – specified inthe various technical instructions – in order to implement the BATstandard.

Why the IPPC Directive?

The IPPC Directive is the empirical research focus here for severalreasons First, an analysis of the Directive is timely It is a recent keyinstrument of EU pollution control law which is still being imple-mented in various EU member states, including new ones Second, theDirective is of wider significance because it constitutes the core of EUpollution control law It links up with other key EU environmentallegislation, such as the Large Combustion Plant Directive,51the WasteIncineration Directive, the Solvents Directive,52the Seveso Directive onthe Control of Major Accident Hazards, the National Emissions CeilingDirective and the Landfill Directive These other Directives set limits forthe emission of certain substances, such as for oxides of sulphur andnitrogen oxides in the case of the Large Combustion Plant Directive,and specific standards for the operation of waste incineration plantsand landfills, regulated also under IPPC, in the case of the WasteIncineration53and Landfill Directives.54Hence, pollution control stand-ards set out in other key pieces of EU environmental legislation areeffectively implemented through conditions in IPPC permits.55The EUCommission wants to further strengthen and clarify links between theIPPC Directive and other EU pollution control regimes, also through aproposal for a single EU Framework Directive which would bringtogether in one legislative text the IPPC Directive, as well as the Large

Combustion Plant and Waste Incineration Directives (ENDS Report, No.

363, April2005: 58; ENDS Report No 370, November2005, p 44).56Second, the IPPC Directive is also of wider significance because itskey regulatory tool, a technology standard, is employed in variousother national, EU and international pollution control regimes.Hence, understanding the practical operation of the BAT technologystandard in the context of the IPPC Directive may also generate insightsinto technology standards used in other pollution control regimes.Technology standards had been harnessed in both German and UKenvironmental regulation long before the introduction of the IPPCDirective The first version of the German federal air pollution controlstatute, the Bundesimmissionsschutzgesetz of 1974 required operators ofindustrial installations to employ the ‘Stand der Technik’ or state of theart technology, in order to reduce emissions into the air Similarly,section 7 (2) (a) of the UK Environmental Protection Act 1990 alreadyrequired operators of installations to employ ‘the best available techni-ques not entailing excessive costs’ In fact in most OECD countriestechnology standards are a cornerstone of environmental regulation(Rajotte,2000).57

Technology standards, however, have not just been employed innational environmental regulation They are also a key element ofinternational environmental law The 1992 OSPAR Convention seeks

to protect the marine environment of the North-east Atlantic.58Art 2para 2 (b) (i) requires the Contracting Parties to the Convention to apply

‘the best available techniques’ for the control of marine pollution.59Finally, technology standards also feature in other EU environmentallegislation, not just the IPPC Directive Directive 84/360/EEC60combatsair pollution from industrial plants Art 4 of this Directive requiresmember states’ competent authorities to ensure that ‘all appropriatepreventative measures against air pollution have been taken, includingthe application of the best available technology, provided that theapplication of such measures does not entail excessive costs’

Third, and most importantly, the IPPC Directive is of wider cance and was therefore chosen as the focus for this empirical researchbecause it allows us to address key questions about the nature of EU law.The BAT technology standard brings into focus the interrelationshipsbetween legal, economic, political and technical dynamics in the process

signifi-of EU integration Wider economic factors, such as developments inmarkets in pollution abatement technology and profitability of regulatedplants, can influence what gets installed as BAT production and pollution

reduction techniques across the EU More specifically, according to Art 2(11) (second indent) IPPC Directive, economic factors, such as the ‘costsand advantages’ of techniques, should be taken into account when thelegal obligation to install the ‘best available techniques’ is determined for

a specific site But political factors, such as national environmental policypreferences as well as regulated industries’ interests, can also influencewhat gets to be considered as ‘the best available techniques’ under theIPPC Directive Hence, analysis of the BAT technology standard shedslight on the question whether there is a distinct ‘legal’ dimension tothe process of EU integration But how does the research address thesequestions about the nature of law in EU integration?

A brief note on research methods

This book analyses the nature of EU law through three qualitativeempirical61 case studies which examine key sites of discourse aboutwhat constitute ‘the best available techniques’ I am interested in thenarratives which participants in BAT determinations construct concern-ing law and integration Hence, the research pays close attention to thediscourses which are mobilised when social actors debate what should

be considered as ‘the best available techniques’ These discourses ter, because they are not mere representations of the social world Theyconstitute social action.62The analysis traces how actors strategicallyuse discourses in debates about what should be considered as ‘the bestavailable techniques’ But it also addresses how discourses regulatewhat arguments can be mobilised about ‘the best available techniques’and therefore how discourses constitute ‘actors’ Hence, the analysisdraws on Foucault’s ideas about discourse and inductively developspropositions grounded in the empirical data

mat-The first case study examines how determinations of what are ‘thebest available techniques’ are achieved during the process of debatingand drafting the EU BAT Reference (BREF) guidance documents How domembers of EU technical working groups define and construct norma-tivity when selecting ‘the best available techniques’? Why are sometechniques singled out as ‘the best available techniques’ ?63The secondand third case studies provide data about how ‘the best available tech-niques’ are determined in a UK and German regulatory authority bypermitting officers and operators when IPPC permits are writtenfor specific installations Two countries are the minimum numbernecessary in order to discuss potential integration effects generated by

the IPPC Directive, such as harmonised definitions of ‘the best availabletechniques’ The UK and Germany were chosen for several reasons.First, there are about 35,542 existing installations in the EU which fallwithin the IPPC regime.64 Most of these are situated in four memberstates, Germany, France, Spain and the UK In fact the largest number ofexisting IPPC installations – circa 8068 – are located in Germany Thefourth largest number of existing IPPC installations – circa 4299 – arefound in the UK Hence, given that about a third of IPPC installations inthe EU are licensed by German or UK regulatory authorities, empiricaldata in relation to IPPC implementation in these two countries arelikely to be significant,

Second, Germany and the UK were chosen for the case studiesbecause they have had sufficiently distinct national approaches to pol-lution control before the implementation of the IPPC Directive UKpollution control has traditionally relied on environmental qualitystandards.65 Moreover, environmental law in the UK often providessignificant discretion for permitting officers in the setting of environ-mental standards In contrast to this, German pollution control regimesrely considerably on binding emission limit values.66 In addition,German permitting officers’ discretion is curtailed by a more legalisticapproach towards permitting which draws on a dense network ofdetailed secondary and tertiary rules German and UK pollution controlregimes also differed before the implementation of the IPPC Directivebecause the UK had already established an integrated pollution controlregime (IPC) under Part 1 of EPA 1990 which was in fact the basis for the

UK proposal for the EC IPPC Directive A hallmark of this regime and theIPPC Directive is a holistic approach towards permitting whereby emis-sions from installations to all three interconnected environmentalmedia, air, water and land are regulated in an integrated way Forinstance, when limits are set for an installation’s emissions of pollu-tants into water, a simple transfer of pollutants into another environ-mental medium such as land should be avoided Such pollutiontransfers can occur when a filter sludge is generated in a waste watertreatment plant While this removes pollutants from the plant’s efflu-ent stream, it may contribute to the pollution of land when the sludge isdisposed of in a landfill site

In contrast to this aspiration for an integrated approach, separateparts of the German environmental bureaucracy have set standards foremissions into air, water and land which are also regulated by separatelegal provisions.67 Hence, the UK and Germany have possessed

sufficiently different systems of pollution control in order to addressthe question whether the IPPC Directive – and in particular what type of

‘law’ generated during its practical implementation – has contributed to

an EU integration effect The purpose of the two case studies is toanalyse what contribution ‘law’ as well as technical, political and eco-nomic dynamics make to the determination of ‘the best available tech-niques’ and whether there is some indication that harmoniseddefinitions of ‘the best available techniques’ are emerging The UKand German case studies therefore do not seek to identify, compareand contrast key characteristics and styles of implementing the IPPCDirective in Germany and England for their own sake So what then arethe key argument and contribution of the book?

Argument and contribution of the book

The empirical research seeks to question theoretical assumptions aboutthe nature of law in EU integration by examining what law is generated

in practice during the implementation of the IPPC Directive Hence,the book pursues a different perspective on the relationship betweenlaw and EU integration than is commonly assumed Often a specific,predetermined concept of law, which perceives law as the ‘formal law

in the books’, as relatively autonomous from its social contexts and ascapable of being wielded in an instrumental manner, underpins explan-atory accounts of EU integration Law is the independent variable andintegration outcomes are the dependent variable This book reversesthis relationship and treats integration outcomes as the independentvariable and law as the dependent variable The question then is howlaw has to be conceptualised in order to account for EU integrationoutcomes What types of law feature in EU integration processes? Thebook suggests that this is an empirical question which needs to beanswered with reference to an analysis of what law is actually generated

in real life EU integration processes Hence, the book focuses on ‘EU law

in action’ It emphasises the importance of implementation practices as

a source of law and thus the limited applicability of ‘formal’ definitions

of law as the ‘law in the books’ It also argues that there are limits to theinstrumental use of ‘law’ which arise from close connections betweenlaw and its social contexts This analysis seeks to contribute to variousliteratures

First of all this book adds to the existing literature on the IPPCDirective There are currently three types of contributions to debates

about the IPPC Directive First, some accounts focus on doctrinal ysis of the text of the IPPC Directive as well as UK and German imple-menting measures (Kloepfer, 2004; Farthing et al.,2003; Zoettl,2000;Doppelhammer, 2000; Backes and Betlem,1999; Long,1999; Emmottand Haigh,1996; Schnutenhaus,1995) They discuss possible differentinterpretations of the text of the Directive and thus point to unresolvedquestions about key concepts, such as the meaning of BAT, the rele-vance of economic and local environmental considerations in the deter-mination of pollution control standards, and in particular the notion ofintegrated pollution control Some contributions also examine theinterrelationship between the IPPC Directive and other EU environ-mental legislation on water and air protection (Pallemaerts, 1996).Some legal analyses of the Directive also discuss its implementation indifferent EU member states (see, for example, Backes and Gerrit,1999;Emmott,1997).

anal-Second, the EU Commission as well as national environmental cies have commissioned a number of applied policy studies of the IPPCDirective They focus on the practical implementation of the Directive

agen-by member state regulatory authorities and regulated installations.68Their main purpose is to gather information about what hinders andpromotes ‘successful and effective implementation’ of the IPPCDirective Some studies focus on economic obstacles to the implemen-tation of the IPPC Directive For instance, one study addresses operators’arguments that implementation of BAT can adversely affect their com-petitiveness It concludes that environmentally high performing plantswhich have already adopted BAT are also economically successful in thelong run (Hitchens et al.,2001).69Another study examines data on thecosts of implementing BAT, focusing on the ceramics industry inFlanders, Belgium It recommends drawing on cost data from a number

of sources, not just technology suppliers, in order to determine moreaccurately the economic feasibility of BAT.70

Other studies examine whether the IPPC Directive simply ensuresenvironmental protection, or can also stimulate innovation in cleanproduction and pollution reduction techniques In the UK a DTI-ledstudy in which DEFRA and the EA participated examines practical caseexamples It suggets that IPPC is effective in encouraging the diffusion

of existing innovative technologies among operators, but does notreally stimulate the development of new clean production and pollu-tion reduction technologies (ENDS Report, No 363, April2005: 4–5) TheIPPC Directive’s role in stimulating technological innovation will also

be further examined in the context of the EU Commission’s officialreview of the IPPC Directive Moreover, the question whether an inte-grated system of pollution control and permitting is emerging acrossthe EU has been examined, sometimes from a comparative perspective(Bohne, 2006, 1998) The EU Commission is seeking to enhance theeffectiveness of the IPPC Directive by improving understanding of itsinteraction with other pollution control regimes The Commission istherefore proposing to conduct research into the relationships betweenlicensing under the IPPC Directive and emissions trading in sulphurdioxide and nitrogen oxides.71Finally, the Commission is conducting acomprehensive EU wide audit which examines how far various memberstates have successfully implemented the Directive at installation level(Entec, Draft Final Report,2006, ENDS Report No 363, April2005: 58;Commission Communication on the Implementation of the IPPCDirective, 2003).72

Third, some contributions to the existing literature on the IPPCDirective place the Directive in the wider context of debates aboutnew forms of EU governance and regulation, including those whichare science-based (Chalmers,2000; Scott,2000; Pallemaerts,1996) TheIPPC Directive is considered as an example of a shift from uniform tomore flexible forms of EU governance It leaves considerable flexibility

to member states on what emission limit levels to set in permits forinstallations (for an argument that it does not provide for enoughflexibility, see Faure and Lefevere, 1996) It is prescriptive mainly inrelation to the procedure and criteria for setting emission limits Thisalso leaves open what the appropriate balance is between governance

by scientific rationality and wider social concerns harnessed throughpublic participation in standard setting under the IPPC Directive(Chalmers,2000: 581)

The empirical data discussed in this book will be of interest to policymakers seeking to understand the practical implementation of the IPPCDirective because the data illustrate a range of obstacles to the ‘success-ful’ implementation of the IPPC Directive in member states They sug-gest that national environmental administrations seek to adapt theimplementation of the IPPC Directive to their pre-existing nationalsystems of industrial pollution control and entrenched practices ofdetermining technology standards The Directive provides a significantchallenge to existing procedures for permitting sites both in the UK andGermany Holistic, integrated permitting which takes into accountemissions to all three interconnected media – air, water and land – is

different from traditional, compartmentalised, media-specific ting in German environmental bureaucracies The strengthened publicparticipation provisions in the IPPC Directive73are a significant depar-ture from previous public consultation provisions in the UK The regu-latory authority now also has to consult the public on the draft licencesagreed with operators Prior to these strengthened public participationprovisions, regulatory authorities only consulted citizens on the IPPClicence application.74 Hence, the book discusses issues of interest toenvironmental policy makers and lawyers.

permit-It also questions assumptions which underpin certain contributions

to the existing literature on the IPPC Directive For instance, the EUCommission IPPC audit study assumes that there is a clear definition ofthe key legal obligations imposed by the Directive and hence that therecan be specific answers to the question whether member states ‘comply

in practice’ with the Directive But this book explores whether we knowwhat ‘law’ in EU integration really is It asks whether, in the light ofevidence of the active construction of ‘EU law in action’, it makes sense

to hold on to the idea that we can theoretically and abstractly determinethrough doctrinal analysis the contents and meaning of EU legal obli-gations which can then be compared and contrasted with the ‘reality ofthe living law’ Once we problematise what ‘law’ is, it becomes moredifficult to know what actually constitutes compliance with the legalprovisions of the IPPC Directive.75

The book is also relevant for EU lawyers and policy makers interested

in wider debates about new forms of EU governance The IPPC Directive is

an example of a hybrid form of law, combining ‘soft’ and ‘hard’ lawprovisions Such ‘hybrid’ forms of law are considered as a hallmark ofnew forms of EU governance (Trubek, Cottrell and Nance,2005) The text

of the IPPC Framework Directive itself constitutes ‘hard’ law, generatedthrough the ‘classic community method’, involving co-decision betweenthe Council of Ministers and the European Parliament Moreover, emis-sion limits set in other EU ‘hard’ law Directives are taken into account asminimum standards when local permitters determine BAT for a specificinstallation But elements of the BAT technology standard are akin to

‘soft’ law The Directive only prescribes the procedure for defining it, notthe actual BAT standard Guidance about ‘the best available techniques’ isdetermined at the EU level through a committee procedure whichinvolves technical and political deliberation This is a departure fromstandard setting through the ‘classic community method’ and thusanother feature of new forms of EU governance