Court throws out energy from waste complaint

The ECJ has thrown out a complaint lodged by the European Commission that Germany failed to fulfil its duties under the Environmental Impact Assessment (EIA) Directive 85/337/EEC (as amended) by authorising the construction and operation of a wood gas firing heat and power plant planning to burn hazardous waste, without ensuring that a full assessment with respect to its environmental effects had been carried out.

Whilst the original application for the plant, was only to cover the intake of wood chips, which were not hazardous waste, following the preparation of a report on the environmental effects of the plant, the application was amended so as to include the use of wood chips classified as hazardous waste, within the plant. Authorisation for the construction and operation of the plant was subsequently granted.

The European Commission challenged that decision on the basis that the assessment of the environmental impacts of the plant, in particular the effect of burning hazardous waste, had not been sufficiently investigated. Although an initial environmental assessment had been undertaken, this was not updated, nor was a fresh public consultation carried out in respect of the amended application.

Germany disputed these claims, submitting that a further environmental impact assessment was not necessary given that the main purpose of the plant was for the production of energy rather than waste disposal.

The key question before the court was therefore whether under the EIA Directive, the term 'waste disposal' covers both the utilisation and disposal of waste, and, therefore whether the plant can be categorised as a waste disposal installation for the incineration of hazardous waste and thus regulated under Annex 1 of the EIA Directive, requiring a full assessment of its impacts to be carried out.

Germany, backed by the UK, contended that the concept of disposal, within the meaning of the EIA Directive must be interpreted restrictively, excluding the utilisation of waste as an energy resource.

However, in its judgment the Court held that the concept of waste disposal, within the context of the EIA Directive must be held to cover all waste disposal operations both in the strict sense and in circumstances where waste is used to produce energy.

Consequently, although the purpose of the plant in question is the production of energy, this is only produced though the incineration of hazardous waste, and therefore such a plant should be classed as a waste disposal installation for the incineration of hazardous waste for the purposes of Annex I of the EIA Directive.

Despite the decision as to the classification of the plant as a 'disposal' operation, the Court dismissed the Commission's claim that the environmental impact of the plant had not been sufficiently investigated as unfounded.

The Court found that an appropriate assessment of the impact of the plant upon the environment had been carried out following the modification of the authorisation request to include the burning of hazardous waste, that a number of investigations had been conducted, and that the conclusions of these had been transmitted to other interested parties, including a public committee and the Commission. The Court also held that these investigations had been fully taken into account by the competent authority in making its decision to grant authorisation, and that a renewed full public consultation was not necessary.

In the current climate of high fuel prices and diminishing fossil fuel resources, the use of waste as a source of energy is becoming more and more significant and therefore this decision is useful in that it confirms, within the context of the EIA Directive, that the term waste disposal does apply to energy from waste plants.

The decision also comes shortly after the Environment Agency issued its Position Statement on Energy from Waste, which sets out the Environment Agency's position on energy from waste and the role it will play in permitting and regulating the performance of such sites.

The decision of the ECJ is available in a number of European languages via the link below:-
http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=en&Submit=Submit&docrequire=alldocs&numaff=C-247/06

The Environment Agency position statement on energy from waste can be accessed here:-
http://www.environment-agency.gov.uk/commondata/acrobat/position_statement_2143772.pdf

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