ECJ provides guidance on the classification of incineration and co-incineration plants

Judgment C-251/07 Gävle Kraftvärme: Background
The decision handed down by the European Court of Justice (ECJ) on 11 September 2008 concerned the classification of a Swedish combined power and heating plant as either (i) an incineration plant or (ii) a co-incineration plant, and will be of importance to operators throughout Europe.

16th September 2008

Judgment C-251/07 Gävle Kraftvärme: Background
The decision handed down by the European Court of Justice (ECJ) on 11 September 2008 concerned the classification of a Swedish combined power and heating plant as either (i) an incineration plant or (ii) a co-incineration plant, and will be of importance to operators throughout Europe.

One of the objects of Directive 2000/76 (the Waste Incineration Directive) is the reduction of negative environmental effects from waste disposal, and hence strict operational requirements are laid down for incinerating plants. Whether a plant is classified as an "incineration plant" or a "co-incineration plant" can be of great significance, as the distinction will determine the operational requirements of the plant, with co-incineration plants generally subjected to less restrictive rules, in keeping with the Community's policy of making best use of waste.

Article 3 of the Waste Incineration Directive provides definitions for a number of key terms in relation to the granting of permits for waste incineration, including definitions for "incineration plant" under Article 3(4), and "co-incineration plant" under Article 3(5).

The present case came before the ECJ following an application by Swedish operator Gävle Kraftvärme for a permit for three furnaces at one location. In Gävle Kraftvärme's opinion, both furnaces one and two (an existing solid fuel furnace and a new waste furnace respectively) could be classified as 'co-incineration' plants.

Whilst the application for a permit was generally favoured, the Regional Authority of Gävlebord took the view that the first furnace should be classified as a "co-incineration plant", whilst the second furnace should be classified as an "incineration plant". The Swedish court supported Gävle Kraftvärme's views on classification, but their decision was reversed by the Environmental Court on appeal.

Gävle Kraftvärme subsequently appealed to the Supreme Court, who referred two questions to the Court of Justice:

  1. Where a combined heat and power plant consists of a number of furnaces, is each unit to be assessed under the Waste Incineration Directive as a separate plant, or is the assessment to cover the combined power and heating plant as a whole? 
  2. Is a plant constructed for waste incineration, but having as its main purpose the production of energy, to be classified as an incineration plant or as a co-incineration plant?

Combined or separate plants?
The Court noted that whilst 'plant' is not defined in Article 3(5), the definition in Article 3(4) is clearly intended to apply to "any … technical equipment or unit". The Court went on to find (following the Advocate General's opinion) that the rules governing the issuance of operating permits can only be applied to individual furnaces, and hence, it is necessary to treat each furnace separately. This view is supported by the objective of the Directive. If it were possible for operators to classify a number of co-incineration and incineration plants together as co-incineration plants, the less stringent rules would apply, and the 'green' aims of the Directive would be frustrated.

The main purpose of the plant
In answering the second question, the starting point is the confirmation under Article 3(4) that a plant dedicated to the thermal treatment of waste constitutes an incineration plant. Under Article 3(5) by comparison, a plant whose main purpose is the generation of energy or production of other products, and which either uses waste as a regular or additional fuel or in which waste is thermally treated prior to disposal, is to be regarded as a co-incineration plant. Article 3(5) goes on to provide however, that if co-incineration takes place in such a way that the main purpose is not the generation of energy or other materials, the plant is to be regarded as an incineration plant. Whilst it had been suggested by the Swedish government that the decision should be based on the purpose for which the unit was built, the Court came to the conclusion that the final decision must be reached following an assessment of the facts at the time of the assessment. Thus, at the time of granting the permit, account must be taken of the volume of energy or other materials generated, the quantity of waste incinerated, and the continuity of this process.

Summary and comment
UK based operators will note that the definition of both "incineration plant" and "co-incineration plant" in the Environmental Permitting (England and Wales) Regulations 2007 and the Pollution Prevention and Control (Scotland) Regulations 2000 closely follows the definitions in the Waste Incineration Directive.

The decision brings some further guidance on the classification of incineration and co-incineration plants and the granting of permits. Operators may in some circumstances find that they are subject to more stringent requirements by being forced to classify furnaces individually, but now have guidance on how best to frame applications. Whilst more tailored applications should improve the permit application process, it remains to be seen whether actual improvements to the speed and certainty of decision making will result.

If you have any queries relating to the above, or other aspects of planning and environmental law, please contact Patricia Hawthorn.