GOVERNANCE AND ACCOUNTABILITY
Context and issues
As required in Article 13 of the Industrial Emissions Directive, the information exchange and decision making processes regarding BREFs are to be made between industry representatives, environmental NGOs, Member States and the European Commission. The information exchange is managed by the European Commission in so-called ‚Technical Working Groups’ (EU TWG). The issues highlighted below are common concerns for Commission Expert groups they are set up on the basis of the standard EU rules for expert groups.
The European Ombuds(wo)man has provided several useful recommendations in her strategic inquiry concerning the composition and transparency of those expert groups, some recommendations have not yet been implemented (see Decision and its Annex). The below assessment is not meant to reflect EEB viewpoints on other EU COM expert groups.
Unbalanced representation in expert groups
The imbalance is illustrated in the current situation of the IED Art 13 Forum membership composition: out of 80 Type C members, 76 are industry associations and only 4 are environmental NGOs. A similar unbalance exists for the various BREF groups, at EU level but also at Member States level. It is correct that NGO involvement is limited mainly due to the absence of dedicated resources.
- EU level: Disproportion is also found within the “industry concerned” category: operators are the only group presented in this category, whilst technique providers or other industries with conflicting interests are not represented.
- Member States level: Certain Member States have been nominating industry affiliated groups to attend in their TWG delegation. This malpractice was particularly true in the LCP BREF review, but is still occuring (recent illustrations in FMP BREF, CER BREF). The national positions are often discussed and defined at the so called „national BREF mirror groups”. There industry dominate. With very rare examples (such as in Germany and Demark), NGOs are not systematically invited to join those discussions at the national level.
Lack of accountability
There is an aspiration to have “consensus-based” decision making. However, this aspiration should be subordinate to the objective of the information exchange itself or should not lead to a situation where the lowest common denominator results as the “compromise”. The current lack of a BAT-derivation method leaves a wide margin of discretion. If there are technical facts that show that a certain pollution level is achievable then objections to the contrary or any weaker compromises should not be accepted, unless these are based on robust technical arguments (non-feasibility) or demonstrated negative cross-media effects in line with the integrated approach of the IED.
- A conflict-of-interest policy should be put in place so that the “experts” involved in the exchange on behalf of governments do not have links to the industry concerned. The COM expert group rules shall rule out conflict of interest situations, polluting industries should not be able to set their own standards, as a result industry afiliated stakeholders should not be part of a member state TWG delegation, nor be able to speak on their behalf. BREF authors should be shielded from potential conflicts with industry interests.
- Adapted rules for the decision-making process for consensus finding when critical decisions are to be made should split equally between the following 3 stakeholder group categories:
- Member States: the Council majority rules could be used, those countries that have implemented previous BREF standards should have a higher standing compared to counterparts that did not require their industry to implement the previous BREF benchmarks.
- Industry: to be split in 3 sub-categories: operators, technique providers and competing industry.
- Environmental NGOs: representatives should have a special power to balance a certain decision that does not meet consensus in a certain direction. A dedicated NGO objection right, based on outcome-oriented criteria and the establishment of “IED compatibility scrutiny board” composed of public interest NGOs and chaired by an experienced NGO in the Sevilla process, should provide its favourable opinion on the final draft text submitted to the TWG (Background papers) and Member States prior to the vote (final draft BAT-C).
- The involvement of independent scientific community should be promoted.
- Output performance indicators (KPI) should be laid down on the European Commission in charge of organising the BREF reviews and should apply on all decision makers involved. Those KPIs should be aligned to delivery on the new Zero Pollution Ambition (outcomes) with headline indicators on the various media goals, but may also include time efficiency of the review, improvement level of the reviesd BREF as to scope, pollutants and issues adressed with qualification of added value for human health and environemntal protection and whether the Union Standards will deliver on the needed industrial transition within the set timescale of the EU Green Deal.
- The voting by Member States to confer binding status of the BAT-C should be reconsidered.
ACCESS TO INFORMATION
Context and issues
Transparency is at the heart of the Sevilla Process. However certain industry operators have taken a restrictive approach as to what type of data is openly shared within the EU BREF review context. This occasion occurred notably within the review of the Refineries BREF (REF BREF) and Surface Treatment with solvents (STS) BREF, where the data provided has been largely based on non-verifiable anonymous reference plants (the review started before the entry into force of the BREF review rules). An intense debate took place on the 4th IED Forum (2013), agenda item 6.
More recently, a similar debate took place in relation to what industry considers “confidential business information” CBI (in most cases this relates to energy and other resource consumption data).
The EEB has already proposed a way forward as to how the issue of dealing with potential CBI could be dealt with within numerous BREF reviews. The proposed way forward is available at this link https://eipie.eu/storage/files/2021_01_20%20Annex%20to%20CBI%20discussion.pdf
Key points to consider
- Clarify the meaning of “CBI”: See Step 1 of proposed way forward precited. It is straightforward to us that
- Energy / water consumption cannot be CBI as the other information relating to ‘environmental emissions’
- The information basis used to derive BAT-C (BAT-AEL and BATAEPL) needs to be transparently available to all stakeholder groups.
- The EEB, representing the E.NGO stakeholder category has no economic interest and is not a “competitor” (the same is true for public servants). Even if some data are ‘validated CBI’, those data items shall be accessible for the non-competitor stakeholder group, namely public servants and representatives of the EEB. Care is only to be taken in relation to the industry stakeholder group, it is for the EIPPCB to sort out (if that situation arises) whether the industry delegates or trade associations should sign a confidentiality agreement or nominate a third-party representative or cannot access that information. Delegates from MS and the EEB (NGOs) shall remain free to use the information for internal consultation processes and have full access to the data, including what is ‘validated CBI’.
- Where ‘validated CBI’ data is used for the BAT-C derivation, this should be available during the whole BREF review up to its publication in the OJEU.
- When information is ‘accepted CBI’ (following to step 1 and 2 of the precited procedure), it may nevertheless be published via aggregated and/or anonymised form in the final BREF (published).
The transparency issue links to wider issues linked to shortcomings in the reporting and data access on industrial activities. See notably the following related briefings: