Slovenia: IPPC Baseline Reporting To Become Serious Very Soon

Slovenian legislation is still lagging behind in transposing the IPPC/IED baseline reporting requirements into national environmental law. However, the Slovenian government recently presented a new draft decree that inter alia defines and specifies the obligation of drawing up baseline reports. Many industries will be hit by the new legislation, which is expected to enter into force by the end of 2014.

Background

The Industrial Emissions Directive 2010/75/EU ("IED") concerns more than 50,000 installations throughout Europe carrying out activities such as the combustion of fuels, iron and steel, paper and pulp, the tanning of hides and skins, waste treatment, food production, or chemicals processing (collectively, "IPPC activities"). The IED inter alia sets forth stringent measures on the protection of soil and groundwater. One of the most essential measures introduced with the IED in that context is the establishment of a so-called "baseline report". The baseline report must contain data on the status of the groundwater and soil on the industrial site of the IPPC activity. When the activity is definitely ceased, the (final) operator must again provide data proving that no significant deterioration in the status of the groundwater and soil occurred. If deterioration has occurred, the operator must undertake clean-up actions.

The status quo in Slovenia

The incorporation of the IED provisions into Slovenian environmental legislation was enacted in 2013 through the adoption of an amendment to the Environmental Protection Act (Zakon o varstvu okolja; "EPA-1F"). The EPA-1F inter alia stipulates the obligation to draw up baseline reports in accordance with the IED. However, the transitional provisions of the EPA-1F explicitly stipulate that the obligation of baseline reporting only takes effect six months after the adoption of a government regulation detailing the content of baseline reports and setting the criteria for determining relevant hazardous substances. This government regulation, which will be released by adopting a new Decree on activities and installations causing large-scale environmental pollution (Uredba o vrsti dejavnosti in naprav, ki lahko povzročajo onesna~evanje okolja večjega obsega; the "Decree"), was envisioned to be adopted within three months after the enforcement of the EPA-1F. However, the Decree has not been issued so far. Consequently, at least under the national legislation, the Slovenian operators of IPPC installations are, for the time being, not obliged to conduct baseline reporting (whereas the provisions of the IED might be directly applicable in Slovenia).

Recent developments

Most recently, the Slovenian government has presented a new proposal for the Decree, which is now envisioned to finally see the light of day by the end of 2014. The new draft Decree takes into account the Guidance Document on baseline reports, which was published by the European Commission in May 2014. Accordingly, the Decree envisions a two-part structure of baseline reports, thereby consisting of (i) a preliminary soil and groundwater assessment aiming at establishing the existence of the site-specific possibility for relevant hazardous substances, present at the installation site, to cause soil or groundwater contamination. Only if such a risk in fact exists, the operators are obliged to carry out and disclose (ii) a (comprehensive) assessment of soil and groundwater pollution, inter alia comprising a detailed analysis of the site's environmental (e.g. geological and topological) status, as well as an assessment of the detrimental effects of the contamination in light of the prescribed standards for soil and groundwater quality. The proposed two-part structure is based on the fact that the question whether a baseline report is at all obligatory depends not only on the chemical substances and mixtures being used, produced or emitted, but also on the possibility of groundwater and soil pollution on the respective site. The latter may in particular depend on the amount of substances used and their role in the production process, as well as on the precautionary measures taken. Therefore, the proposed instrument of a preliminary assessment may be an essential chance for the operator of an IPPC installation to argue that no relevant risk exists on the respective installation site, with the effect that a baseline reporting would not be required.

Conclusions

Despite the (substantial) setback in the legislative pipeline, the enforcement of baseline reporting now clearly lies on the horizon for Slovenian environmental practices. Bearing in mind that baseline reports can also be utilized as a tool facilitating the establishment of installation operators' responsibility for soil and groundwater pollution, with that establishment also entailing the internalization of any associated (environmental) costs, the reports' far-reaching potential effects should not be disregarded. The operators of IPPC installations are particularly well-advised to address and evaluate the chance of "opting-out" from the reporting system. Both the EC Guidance Document and the new draft Decree (once finally adopted) may be of help in proving the lack of relevant risks for soil and groundwater contaminations.

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