In the summer of 2022, new cessation procedures for ICPEs

Since June 2022, the ICPE cessation of activity procedure has been significantly overhauled, featuring clarified steps, new certifications, and strengthened obligations.

Thomas Forest
Consultant HSE
Publication : 
02.02.2022
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Please note: This article concerns French legislation. The requirements described may not apply in other countries.

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After ten years without any major changes, ICPE cessation of activity procedures were revised by Decree No. 2021-1096 of August 19, 2021, issued in accordance with Article 57 of Law No. 2020-1525 of December 7, 2020 (the "ASAP" Law). Consequently, regardless of the facility's regulatory status (authorization, registration, or declaration), new requirements apply to cessations of activity declared after June 1st , 2022.

The ICPE cessation of activity procedure: clarified and updated with new definitions

Certain concepts and definitions regarding ICPE cessation of activity have been clarified.

Cessation of activity is now defined as a "set of administrative and technical operations carried out by the operator of one or more ICPEs to ensure continued protection of the interests covered by ICPE and, where applicable, IOTA regulations, when the operator no longer carries out the activities that justify the classification of these facilities under the ICPE nomenclature on one or more parts of the same site ."

The regulations outline the four mandatory steps to follow when ceasing operations:

  • Permanently shut down the facility;
  • Secure the facility;
  • If necessary, determine the future use of the site (for authorization and registration regimes);
  • Rehabilitate or restore the site.

Note the following new, significant clarifications:

  • Definitive shutdown = total cessation or reduction to such an extent that all classified activities no longer fall under the ICPE nomenclature of one or more facilities on the same site, regardless of the continuation of other activities on the site and the release of the land.
  • Neighboring land to that affected by the cessation of activity = these are now included, with the operator required to place their site in a condition that does not infringe upon protected interests on neighboring properties;

Finally, if an installation changes its ICPE status, the procedure to follow depends on the cause of the change:

  • In the event of a reduction in activity – for example, if an installation subject to registration falls below the threshold due to a change in activity and subsequently falls under the declaration regime: the obligations remain those applicable prior to this reduction in activity – in our example, the cessation procedure applicable to ICPEs subject to registration must be followed, even though the installation now falls under the declaration regime.
  • In the event of achange in nomenclature : the obligations are, conversely, those of the new applicable regime – to use our previous example, if an ICPE subject to registration transitions to a declaration regime due to changes in nomenclature thresholds, the cessation procedure to follow will be the one applicable to ICPEs subject to declaration.

Specific procedures for the cessation of activity for authorized and registered ICPEs

Regarding the second step of securing the site, it is now necessary to provide a certificate of implementation for safety measures, issued by a certified company in the field of polluted sites and soils.

Regarding the steps for determining future use and site rehabilitation or restoration , these may be postponed but only (i) for land that is not being vacated and (ii) upon an express and justified request, by the operator, to the prefect. This request must be made at least three months before the final shutdown, include an explanation of the justifications associated with the postponement request, and be approved by the prefect.

Note : under previous regulations (applicable until May 31, 2022), no express or justified request was required; the steps for determining future use and site remediation or restoration were only mandatory upon the release of the land.

Furthermore, the remediation plan must be submitted to the prefect within 6 months of the final shutdown and accompanied by a certificate of adequacy for the proposed remediation measures, which must also be issued by a certified company in the field of polluted sites and soils.

Specific procedures for the cessation of activities for declared ICPEs

For declared ICPEs, the procedure involves, in particular, notifying the final shutdown including the shutdown date, the list of affected land as well as the measures taken or planned and the associated schedule to ensure site safety upon shutdown.

For certain facilities, a certificate of implementation for site safety measures must be issued, once again, by a certified company regarding contaminated sites and soils; this applies to the nomenclature categories listed in Article R. 512-66-3 of the Environmental Code.

Finally, two information obligations for the operator to note:

  • Once site safety measures are complete : the operator must notify in writing the mayor or the president of the public establishment for inter-municipal cooperation responsible for urban planning, the owner(s) of the affected land, and the ICPE inspectorate.
  • Once remediation is complete : when this is not carried out at the same time as the safety measures, the operator must notify in writing the prefect, the owner(s), and the competent municipal authority .

Specific procedures for IED installations and wind turbines

For IED industrial facilities, note the electronic availabilityof prefectural orders specifying :

  • before rehabilitation work, the rehabilitation work, the monitoring measures for the environment and the usage restrictions required during the rehabilitation work;
  • once rehabilitation is complete, the monitoring measures for the environment, as well as the procedures for preserving site history and the usage restrictions.

Regarding the decommissioning and site restoration ofwind farms, there is a requirement to have the implementation of decommissioning and restoration operations certified by a company certified in the field of contaminated sites and soils.

This certificate must then be submitted to the prefect, to the mayor or to the president of the public inter-municipal cooperation establishment with jurisdiction over urban planning, as well as to the owner of the land. Site restoration is deemed complete if, within 2 months of the submission of the certificate, the prefect has not raised any objections or requested additional information.

Note:

The next DGPR Tuesday session, scheduled for February 8, will be dedicated to the topic of “Regulatory changes regarding the cessation of ICPE activities and polluted sites and soils – Following the ASAP Act (Acceleration and Simplification of Public Action)”.

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Photo credit: 56649593 @Sved Oliver