Workshop on Decommissioning of

Offshore Installations

Existing Legal Framework & Conventions

Currently Applicable EU Environmental Legislation

Relevant EU environmental legislation

• Environmental Impact Assessment Directive 2011/92/EU

• Strategic Environmental Assessment Directive 201/42/EC

• Habitats Directive 92/43/EEC

• Wild Birds Directive 2009/147/EC

• Environmental Liability Directive 2004/35/EC

• Industrial Emissions Directive 2010/75/EC

• Ship Recycling Regulation 1257/2013

• Waste Shipment Regulation 1013/2006

• Marine Strategy Framework Directive 2008/56/EC

• OSPAR Convention

• Maritime Spatial Planning Directive 2014/89/EU

• Barcelona Protocol

”Project", in the sense of EIA Directive, is: • - the execution of construction works or of other installations or schemes,

• - other interventions in the natural surroundings and landscape including those involving the extraction of mineral resources.

• Demolition/decommissioning works come within the scope of EIA Directive:

• The CJEU confirmed that demolition works can be described as "other intervention in the natural surroundings and landscape" - see C-50/09, para 97-101. It is therefore equal to demolition as "decommissioning generally entails plugging of the well, breakdown and removal of structures".

• (1) if the demolition is covered from the beginning of the planning process for the project, then the impact of the demolition should have been assessed.

• (2) if the initial project did not cover decommissioning, then it should be assessed separately as "new project".

Directive 2011/92/EU – EIA Directive

Some examples of EIA projects

ANNEX I (Mandaroty EIA)

• - Crude oil installations

• - Extraction of petroleum and natural gas for commercial purposes where the amount extracted exceeds 500 tonnes/day in the case of petroleum and 500 000 cubic metres/day in the case of gas

ANNEX II (Screening)

- - Deep drillings

- - Surface industrial installations for the extraction of petroleum or natural gas

- - Any change or extension of projects listed in Annex I/II, already authorised, executed or in the process of being executed, which may have significant adverse effects on the environment

"Plan or Programme", in the sense of SEA Directive, is any document that fulfils all four criteria:

prepared and/or adopted by an authority at national, regional or local level;

required by legislative, regulatory or administrative provisions;

prepared for agriculture, forestry, fisheries, energy, industry, transport, waste/ water management, telecommunications, tourism, town & country planning or land use;

set the framework for future development consent of projects listed in the EIA Directive.

Plus SEA applies to plans and programmes which have been determined to require an assessment under Articles 6 or 7 of

the Habitats Directive.

Directive 2001/42/EC – SEA Directive

SEA and maritime planning & activities

SEA Directive – Maritime Spatial Planning Directive – Marine Strategy Framework Directive – all three promote sustainable development.

Where maritime spatial plans (MSPs) or programme of measures (PMs) are likely to have significant effects on environment, they are subject to SEA Directive

See recital 23 of the MSP Directive.

Possible projects which the MSPs and PMs may include are for instance: aquaculture areas, related to energy, maritime transport, tourism, etc. ( See Art. 8 (2) MSP Directive).

The Environmental Assessment Procedures

Scope and level of detail of the

information to be provided by

developer (mandatory for SEA)

The “Report” (including a non-

Technical summary)

Public, environmental

authorities, (local and regional

authorities - for EIA), other

MSs...

Takes account of env. report

and consultations

End of EIA/SEA process

Scoping

Decision

Information on decision + reasons for

granting it

EIA/SEA Report

Screening (for Annex II projects)

Information and Consultation

Monitoring

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Using screening criteria listed in

Annex III (EIA)/ Annex II (SEA)

Already mandatory for SEA,

for EIA – from May 2017

Possible significant transboundary effect from a project Article 7, EIA Directive & Espoo Convention

Where MS is aware that a project is likely to have significant effects on another MS, OR if a MS likely to be significantly affect so requests:

MS of origin shall inform the affected MS;

MS of origin shall give other MS a reasonable time to indicate if it'd participate in the environmental decision making procedures;

If affected MS intends to participate it is entitled to receive from the MS of origin all information under Article 6(2)-(3) EIAD.

The public concerned in the affected MS has the right to information and participation in decision-making.

Transboundary consultations may be carried out through joint body.

Nature legislation – Birds (2009/147/EC) and

Habitats (92/43/EEC) Directives

Aim to contribute to enhancing biodiversity through conservation of most threatened natural habitats and species in the EU

2 pillars: species protection and site protection and management (Natura 2000 network)

Natura 2000:

Sites designated under the Birds or the Habitats directive

Complete on land, in progress at sea (in marine waters under MS jurisdiction)

Protection and management of Natura 2000 sites

Within all Natura 2000 sites:

Avoid damaging activities that could significantly disturb the species and/or habitats for which the site has been designated;

Positive measures are taken, where necessary to maintain and restore those habitats and species to a favourable conservation status in their natural range

The ultimate objective is to ensure that the species and habitats reach «favourable conservation status»

Translated in legal terms in Article 6 of the Habitats Directive (HD)

BUT applies also to sites designated under the Birds Directive

Assessment process under Article 6(3) and (4) Habitats Directive

No ‘a priori’ prohibition of new activities or developments - judged on ‘case by case’

basis

Art. 6(3)

• Any plan or project likely to have a significant effect on the site (whether

located within the site or not), either individually or in combination with

other plans or projects, must be subject to an Appropriate Assessment of

its implications for the site in view of the site’s conservation objectives.

• The competent authorities shall agree to the plan or project if the integrity

of the site is guaranteed

Art. 6(4)

• In case of negative conclusion and absence of alternatives, PP can still

authorised if: imperative reasons of overriding public interest evoked,

compensation measures established, opinion of the Commission (if

needed).

Step-by-step assessment of plans and projects affecting Natura 2000 sites

• Possible negative impact on Natura 2000 site?

• No OK

• Yes Appropriate Assessment (AA)

• No impact OK

• Negative impact no authorization - Alternatives?

• There are alternatives new AA

• No alternative Imp. Reasons of Overriding Public Interest?

• No IROPI no authorization

• IROPI Priority habitats/species affected?

• No OK with compensation measures,

notification to EC

• Yes Commission opinion required

Environmental Liability Directive - ELD

• Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, OJ L 143, p. 56

• EU framework based on the polluter-pays principle on the prevention and remedying of certain types of environmental damage (nature, water, soil)

• Liable person: operators carrying out professional activities – obligation to prevent damage in case of imminent threat and remedy damage if it occurred already – and bear costs

• Competent authorities enforce and affected persons including NGOs have rights to request action and to review decisions

Overview of the functioning of the ELD

The double scope of ELD liability

Strict liability:

Damage to biodiversity,

water, land

Damage to biodiversity

Dangerous occupational

activities – Annex III ELD

Any other

occupational activity

Fault based liability:

Causal link is always necessary element – cf. C-378/08

Relevant activities in Annex III ELD

• "The operation of installations subject to permit in pursuance of Directive 2010/75/EU on industrial emissions" (Annex III.1)

• "Waste management operations, including the collection, transport, recovery and disposal of waste and hazardous waste, including the supervision of such operations and after-care of disposal sites, subject to permit or registration in pursuance of Directive 2008/98/EC on waste" (Annex III.2)

• "Manufacture, use, storage, processing, filling, release into the environment and onsite transport of dangerous substances as defined in Regulation (EC) No 1272/2008 on classification, labelling and packaging of substances and mixtures"(Annex III.7)

• "Transport by … sea … of dangerous goods or polluting goods as defined in Directive 2002/59/EC establishing a Community vessel traffic monitoring and information system" (Annex III.8)

• "Transboundary shipment of waste within, into or out of the European Union, requiring an authorisation or prohibited in the meaning of Regulation (EC) No 1013/2006 of the European Parliament and of the Council on shipments of waste" (Annex III.12)

Industrial Emissions Directive – are offshore installations covered?

IED Article 3(3): ‘installation’ means a stationary technical unit within which one or more activities listed in Annex I ... are carried out, and any other directly associated activities on the same site which have a technical connection with the activities listed in those Annexes and which could have an effect on emissions and pollution;

IED – activities in the scope of IED Annex I?

Some IED activities that may be relevant: • Combustion of fuels with thermal input >

50MW • Refining of mineral oil and gas • Gasification or liquefaction Competent authority must decide when granting permit - based on Best Available Techniques, also for decommissioning

IED – stationary technical unit?

Is a technical unit that is designed to be moved (or at least moveable) periodically, but which in practice operates at the same location for some time "stationary"? If the IED activity will be carried out at a particular location for a significant period of time, then it should be considered stationary for the purposes of the IED. The competent authority must assess this on a case-by-case basis Account may be taken of the potential environmental impact of the activities, the expected duration at start of the operation, the actual duration (where this is e.g. much longer than expected), the degree of effort and physical equipment involved in moving and establishing the plant (e.g. whether it arrives on its own wheels or is transported as a single unit, or needs a significant degree of engineering and construction to establish it)."

• Decommissioning activities resulting in disposal or recovery of waste must observe the waste hierarchy (Art. 4 WFD) and the duty of care (Art. 13 WFD) to protect human health and the environment.

• Companies in charge of such disposal or recovery operations are requested to hold a valid waste permit (Art. 23 WFD). Exemptions (e.g. recovery) are allowed under Art. 24 WFD. In such cases a registration of the companies is requested (Art. 26 WFD).

• Where such installations contain hazardous waste (e.g. waste oils), relevant legal provisions related to control, mixing ban, labelling, and record keeping need to be complied with. (Art. 17 to 21 and Art. 35 WFD).

Waste Framework Directive 2008/98/EC (WFD) - Decommissioning of off-shore installations as waste

Regulation 1257/2013 on ship recycling

Definition of 'ship' (Article 3)

3rd country flag Waste Shipment Regulation 1013/2006

Scope (Article 2)

Obligation (Article 6)

European List (since 20. 12. 2016):

Waste Shipment Regulation

1013/2006

• First, ships (potential waste as such) flying the flag of a

third country fall under the WSR, and ships flying the flag of a MS fall under the scope of the SRR (see previous slides), and are hence outside of the scope of the WSR.

• Second, shipment of waste from decommissioning a platform:

• to the shore: the WSR applies if (i) the exclusion clause under Article 1(3) WSR does not apply and (ii) the shore is located in a country other than the platform

• from the shore to the treatment facility: the WSR applies if the facility is located in a country other than the country of the shore.

Marine Strategy Framework Directive

• Objective: achieve Good Environmental Status (GES) by 2020

• Described by 11 Descriptors

• Member States have to:

1. Assess the status of their waters (Art.8)

2. Determine GES (Art.9)

3. Set targets (Art.10)

4. Establish Programmes of Measures (PoMs) (Art.13) POMs include measures taken under other policies (e.g. Water Framework Directive etc)

• 6 year implementation cycle

• First PoMs were due this year, currently scrutinised by Commission (report envisaged end of 2017)

• PoMs may be relevant for decommissioning activities – must check individual cases

OSPAR Convention

• Objectives related to offshore activities : prevent and eliminate pollution and take the necessary measures to protect the OSPAR maritime area against the adverse effects of offshore activities

• Offshore Industry Committee (OIC) : particular attention to the decommissioning of redundant oil and gas installations as these activities increase

• Decision 98/3 on the disposal of disused offshore installations :

Legally binding

Prohibits the dumping and the leaving wholly or partly in place of disused offshore installations within the maritime area but allows for derogation from the prohibition for certain categories of offshore installations

Currently under review by an inter-sessional correspondence group (ICG)