Substantive environmental provisions

1. Substantive environmental provisions Prof. Gyula Bándi

2. How to define environmental uses? Substantive requirements are provisions containing the direct rules of the functioning and operation of the uses of environment, which form the substance of the regulation. The most important question of environmental legal regulation is the definition of the possible frames of the use of environment. The substantive regulation of environmental requirements on concrete environmental pollution can be defined in the following ways: • standards: best known types of standards are limit values (the quantitative frames of usage and pollution are to be defined or other quantitative, clearly defined methods used and standards applied to specify them; and • technical/technological requirements (general provisions of the applied technique and technology of environmental use)

3. Standards Major types of standardisation: • limit values: - environmental quality objectives - emission or output objectives, which could be applied to activity or product; and • direct - primarily application or security - requirements; • lists.

4. Characteristics of standards: • concrete requirements defined specifically - either in a numeric form based on quantitative considerations, - or in other, clearly defined forms (e.g. qualification or training time of professionals obligatory and required for the operation of environmental use) in legal regulation or in other, legally binding forms (primarily compulsory public administration decrees) in a way that • it allows the modification of procedural conditions appropriate for the form of acceptance if circumstances change, moreover it expects regular modifications; • monitoring is legally easier and consequently; • it can serve as a simple mean of evidence.

5. BAT and similar The 1996 directive on integrated pollution prevention and control goes beyond the frames of the present system in the field of technical/technological requirements. Article 2 describesthe definition of the concept of technical parameters: „11. 'best available techniques` shall mean the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole: • - 'techniques` shall include both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned, • - 'available` techniques shall mean those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the costs and advantages, whether or not the techniques are used or produced inside the Member State in question, as long as they are reasonably accessible to the operator, • - 'best` shall mean most effective in achieving a high general level of protection of the environment as a whole.”

6. Characteristics of technical and technological provisions of the use of environment include: • the relative uncertainty of definition, as it requires a case-by-case assessment and mostly case-by-case decisions, • the demand and necessity to continuously change the technical and technological content, • the demand and necessity to continuously compare domestic and international experience, which does not necessarily imply the application of the most advanced solution, • with all this the substantive requirement of the criterion only describe the framework, • the comparison of the demand and the actual practice in uncertain; • consequently the monitoring of the technical/technological approach poses new challenges for public administration, because • its application as a means of evidence is difficult as it requires a case-by-case approach described above and the thorough investigation of the criteria and circumstances, • on the other hand its legal requirement framework can be left intact because it continuously tracks technical development.

7. Danube River Protection Convention (Sofia, 1994) Annex I Part I- Best available techniques 1. The use of the best available techniques shall emphasize the use of non-waste technology, if • available. 2. The term "best available techniques" means the latest stage of development (state of the art) of • processes, of facilities or of methods of operation which indicate the practical suitability of a particular • measure for limiting discharges, emissions and waste. In determining whether a set of processes, facilities and methods of operation constitute the best available techniques in general of individual cases, special consideration shall be given to: • (a) comparable processes, facilities or methods of operation, which have recently been successfully • tried out; • (b) technological advances and changes in scientific knowledge and understanding; • (c) the economic feasibility of such techniques; • (d) time limits for installation in both new and existing plants; • (e) the nature and volume of the discharges and emissions concerned. 3. It therefore follows that what is "best available techniques" for a particular process will change with time in the light of technological advances, economic and social factors, as well as changes in scientific knowledge and understanding. 4. If the reduction of discharges and emissions resulting from the use of best available techniques does not lead to environmentally acceptable results, additional measures have to be applied. 5. The term "techniques" includes both the technology used and the way the installation is designed, built, maintained, operated and dismantled.

8. Part 2 - Best environmental practice 1. Best environmental practice means the application of the most appropriate combination of sectoral environmental control strategies and measures. 2. In determining what combination of measures constitute best environmental practice, in general or individual cases, particular consideration should be given to: • - the precautionary principle; • - the environmental hazard of the product and its production, use and ultimate disposal (principle of • responsibility); • - the substitution by less polluting activities or substances and saving resources including energy • (principle of minimising); • - the scale of use; • - the potential environmental benefit or penalty to substitute materials or activities; • - advances and changes in scientific knowledge and understanding; • - time limits for implementation; • - social and economic implication. 3. It therefore follows that best environmental practice for a particular source of impacts will change with time in the light of technological advances, economic and social factors, as well as changes in scientific knowledge and understanding. 4. If the reduction of impacts resulting from the use of best environmental practice does not lead to environmentally acceptable results, additional measures have to be applied and best environmental practice redefined.

9. Information requirements Thereby the collection and provision of environmental information has more than one interpretation: • the user of environment is obliged to keep the registers, • the user of environment reports data to the authorities, • the authority collects these pieces of information, and • transfers them to the recipients prescribed by law, including the relevant Directorate General of the Commission. New examples of information systems are represented by the provisions of the so called EPER (European Pollutant Emission Register) and PRTR (Pollutant Release and Transfer Register), which are mentioned here even without existing case-law but, given their importance, a short description of their operation is elaborated.

10. Marking and labels A special type of information requirements is marking and in some cases labels, the use of which is twofold: • firstly, they give information on the appropriate usage or handling of a given product, substance etc., in order to prevent or reduce the dangers on the environment; • secondly, if used as eco-labels they inform on positive environmental characteristics.