Court gets to grips with waste incinerators

Following on from the earlier opinion of the Advocate General, the European Court of Justice (ECJ) has provided the Supreme Court in Sweden with a preliminary ruling on the interpretation of various provisions of the Waste Incineration Directive (WID).

The Swedish Court had asked the ECJ whether each furnace unit in a combined heat and power plant should be assessed as a separate plant for the purposes of determining whether it is an ‘incineration’ or ‘co-incineration’ plant under WID, or whether such an assessment should cover the plant as a whole. The ECJ was also asked whether a plant constructed for waste incineration but operated mainly for the purpose of producing energy should be classified as an incineration or co-incineration plant.

In delivering its ruling the ECJ held that for the purposes of applying the WID where a co-generation plant comprises a number or boilers, each boiler and its associated equipment should be regarded as constituting separate plant.

The Court also held that it is the main purpose of the plant that should be looked at, rather than the purpose for which the unit in question is built (as the Swedish Government argued) in determining whether a plant is to be classified as an incineration or co-incineration plant. Further, it is for the competent authority to identify that purpose on the basis of an assessment of the facts of each particular case, taking into account the energy generated, or materials produced in relation to the quantity of waste burnt and the long-term prospects for production, in terms of stability and continuity.

The Judgment of the ECJ can be found here.

A court in Finland has also requested that the ECJ provide a preliminary ruling on the applicability of the WID to an installation in which waste is transformed into fuel gas, purified then co-incinerated in a power station and also to clarify the point at which the purified gas generated at the gas plant could be regarded as a product, in order to determine the point at which the national regulations on waste no longer apply.

In delivering her Opinion, the Advocate General declared that the WID does not apply to installations which only carry out the combustion of gaseous waste or its thermal treatment. However, it was found that a gas plant where gas is generated by the pyrolysis of waste must be regarded as incineration plant under Article 3(4) of the WID even if it has no incineration line.

The Advocate General also found that combustion of gas generated in the gas plant, purified after gasification, in the boiler of a power station must be regarded as an activity falling under the WID when the gas constitutes a waste at the time of its combustion. However, purified gas will be regarded as a product, and no longer subject to waste regulation, when it is sufficiently similar to a raw material or other products.

The full reasoning of the Advocate General can be found within the Opinion which is available in a number of European languages here.

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