What initiatives are in the pipeline within the licensing area?

IIn our previous article, we discussed the measures included in the draft PAS to reduce emissions at source. In addition to these source measures, the draft PAS also includes a package of measures that will address nitrogen emissions through the issuance of permits. In this second article, we place the so-called assessment framework for issuing permits and explain them briefly.

Habitat test

The aforementioned assessment framework stems from European rules, which are intended to protect nature. For example, the European Habitats Directive obliges Flanders to examine the consequences of a project or activity requiring a permit for nature in an affected special protection zone (SPA). In this connection, special consideration must be given to the conservation objectives of the relevant SPA. This means that for any application for environmental approval – whether it is pure construction or for the operation of a company subject to a permit – it must be examined whether it can have an impact on a SPA. This study is called the Habitat Test. This is divided into 2 parts: the initial test and the relevant assessment.

pretest The initial test is a first step in the application of the habitat test. The pilot test acts as a kind of funnel to make it possible to identify the projects or activities for which an appropriate assessment – another step – is required. In connection with the preliminary assessment, the question arises whether the project can have significant consequences for a SPA. If there is a risk of ‘significant impairment’ of the SPA, an appropriate assessment must be made.

Appropriate judgment An appropriate assessment is an in-depth study of the effects of the desired project or activity on a SPA. An appropriate assessment can also examine measures that reduce the damage to nearby nature to an acceptable level.

In the light of the case law of the European Court of Justice, assessment frameworks can be used under very strict conditions in a programmatic approach. That is also what the Flemish government did in drafting the final PAS. In this way, the same research method is used throughout Flanders for the nitrogen aspect, based on the preliminary test and, if necessary, the appropriate assessment is made.

Three assessment frameworks

In the draft PAS, 3 assessment frameworks were developed, each with a specific area of ​​application depending on the different types of permit-requiring activities. A first assessment framework covers stationary sources in the industrial, energy, trade & service and agricultural sectors, while a second assessment framework was developed for mobility-related infrastructure. Finally, a third assessment framework is aimed at livestock farms and manure processing plants.

While the first 2 assessment frameworks focus on emissions of nitrogen oxides (NOx), the third assessment framework focuses on emissions of ammonia (NH3).

Thresholds

The assessment framework in the draft PAS is based on threshold values, whereby a ‘pre-test’ can reach below a first threshold value. For projects or plans that may make a higher contribution to the critical deposit value (KDW) than this initial threshold, an ‘appropriate assessment’ must be made in accordance with a set of principles and guidelines. If these principles (and prerequisites) are met, the project can be advised positively regarding the consequences of nitrogen discharge and disposal.

KDW refers to the maximum load of nitrogen precipitation that prevents the nature of SPAs from deteriorating or suffering irreparable damage. Depending on the contribution of a project or activity to KDW, either a preliminary test will suffice or an appropriate assessment will have to be prepared.

Stationary Sources

The first assessment framework is for the so-called ‘stationary sources’. This includes combustion plants and combustion plants. In the agricultural sector, this primarily includes the heating plants of a horticultural or greenhouse grower.

The draft PAS uses a 1% share of the expected disposal of the facility to be approved compared to KDW for SPA in the area as a threshold when the preliminary assessment is carried out. A maximum of 0.3 kg N / ha / year is used here. If a company to be approved remains below this threshold, no appropriate assessment is required and the initial test is sufficient.

When the 1% threshold in the fortest is exceeded, an appropriate assessment must be made. Depending on the specific proportion of the planned disposal of the requested plant in relation to KDW, different measures apply. For an effect of 1 to 5%, all technically and economically feasible and cost-effective measures must be taken up to a certain cost-effectiveness limit. If the impact is greater than 5%, the cost-effectiveness limit is further raised.

Infrastructure mobility

A different assessment framework was provided for the construction and expansion of mobility-related infrastructure. Here too, the threshold for carrying out the preliminary test is 1% of the expected disposal of the plant, which must be approved in relation to the SPA’s KDW in the area, with a maximum of 0.3 kg N / ha / year. If this threshold is exceeded, an appropriate assessment must be drawn up identifying all relevant technically and economically feasible measures in order to reduce the deposit as much as possible. The mobility-related infrastructure will only be allowed and permitted if all these measures are taken into account.

Livestock farming and manure processing

The most stringent assessment framework is the assessment framework for ‘ammonia’, which applies to livestock farms and manure processing plants. In this case, the pre-test of a share greater than 0.025% of the expected deposit of the facility to be licensed in relation to the SPA’s KDW in the area immediately requires an appropriate assessment. In other words, this initial threshold is significantly lower than in the assessment framework for other industries.

In addition, for a large number of companies, it will follow from the relevant assessment that their application is simply not eligible. After all, if the relevant assessment shows that another, variable threshold has been exceeded, no permit can be granted.

This second threshold is a variable threshold that can change between 0 and 0.8%, depending on progress at the Flemish level. The threshold is evaluated every two years on the basis of propulsion measurements and adjusted if necessary.

If the relevant assessment shows that the impact falls between the first and second thresholds, permission may be granted, provided that the site-specific situation is taken into account in the relevant assessment, including the effects of the (generic) reduction measures on the habitats concerned. brought.

In short: Obtaining a permit that allows greater nitrogen emissions (an extension) will only be possible in very special cases.

Re-license without extension

The ammonia assessment framework does not play a role in mere renewals of an expiring permit, at least if the renewal will not be accompanied by additional nitrogen discharges and deposits. Existing companies whose permits expire in the coming years may be re-licensed without having to undergo an appropriate assessment, provided that they do not cause net additional nitrogen emissions and provided that they respect source measures.

For example, a re-permit for an existing pig farm in a barn without ammonia emissions can only be granted if the company achieves the reduction reduction of -60% of the emissions. This in turn means that either such a large investment must be made that emissions are reduced by 60% through the use of new technologies, or that 60% fewer animals are kept, or through a combination of both.

Transitional arrangement

The draft final PAS contains a transitional arrangement for the permits that are now expiring. The period of validity of permits for livestock farms and slurry processing plants, which still expires in 2022, is extended by decree by one and a half years. This also applies to permits that have expired in 2021 and where renewal has been requested in good time.

The aforementioned extensions are calculated from the Flemish Government’s final approval of the PAS. However, this regulation only applies to companies that would not be able to obtain a new permit due to the nitrogen problem surrounding SPAs.

Jan Opsommer

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