WTE and the law - Keeping track of WTE legislation

With rising oil prices and our efforts to protect the climate, WTE is becoming an increasingly important way to reduce our high dependence on fossil fuels and landfilling.

With rising oil prices and our efforts to protect the climate, WTE is becoming an increasingly important way to reduce our high dependence on fossil fuels and landfilling. The law is gradually shifting to accommodate the opportunities WTE can deliver. Here Dr Ella Stengler takes a look at how three major pieces of EU legislation will affect the operators of WTE plants in the future

In the EU some 370 waste-to-energy (WTE) plants treat about 59 million tonnes of municipal solid waste thermally each year, (based on 2006 figures). They can supply seven million households with electricity and 13 million households with heat, by generating about 23 billion kWh of electricity and 58 billion kWh of heat from the waste.

The waste-to-energy sector falls into the jurisdiction of both sustainable waste and energy policies. It helps to significantly contribute to climate protection and provides great potential as a future energy source. It is becoming increasingly important both as a way of dealing with waste and as a source of energy in many developed countries. If waste can be successfully diverted from landfill, which is the aim of European Environment and Climate policy, more recycling facilities and more efficient WTE plants will be necessary in Europe.¹

For any new investment in the WTE sector, extensive planning is essential. The security of these plans is underpinned by clear legislation and reliable politics in the countries they are undertaken. The EU Waste Framework Directive (WFD) is an important step towards this legal clarity, meaning WTE plant operators know the exact criteria they must fulfil for their plant to be classified as an ‘energy recovery’ operation, putting them higher up the waste hierarchy than waste disposal. This also gives an incentive for plants which do not yet achieve the thresholds of the WFD to improve energy efficiency.

The Waste Framework Directive

On 17 June 2008 the European Parliament voted on the WFD in second reading, thus agreeing with a compromise discussed previously with the Council. The WFD now accepts the energy recovery status for efficient WTE plants.² This classification consists of two parts: The recovery definition, and the R1 formula stating energy efficiency criteria in Annex II of the WFD.

‘Recovery’ means any operation from which the principal result is waste serving a useful purpose by replacing other materials which would have been used to fulfil a particular function, or waste being prepared to fulfil that function, in the plant or in the wider economy. Annex II sets out a non-exhaustive list of recovery operations.

The wording ‘in the wider economy’ is important for WTE plants. This makes sure the indirect substitution of materials is also covered by the definition (this applies to WTE plants because the energy they produce substitutes the use of fossil fuels by conventional power plants). The European Parliament had deleted this wording in the first reading but adopted it in its second reading.

The efficiency formula in Annex II of the WFD³ gives the thresholds for the classification as energy recovery. This threshold is 0.6 for existing plants and rises to 0.65 for plants permitted after 31 December 2008.


The Asdonkshof waste-to-energy plant in Germany, by night Click here to enlarge image

If necessary, the application of the formula for WTE facilities referred to in Annex II, R1, will be specified. Local climatic conditions may be taken into account. Severity of cold weather and the need for heating can influence the amounts of energy that can technically be used or produced in the form of electricity, heating, cooling or processing steam.

This measure shall be adopted in Comitology (regulatory procedure).4 This means the Commission drafts a proposal, assisted by Member States’ experts. The Parliament has a right to veto, but is not as deeply involved as it is in the co-decision5 process which is the normal process for environment legislation.

It was a long journey to achieve this measure, and along the way many controversial debates took place, so much so that the topic was referred to as ‘the elephant in the room’ by the European Parliament’s Conservative Rapporteur, Dr Caroline Jackson, UK. The R1-formula had even been totally deleted in the Parliament’s plenary vote in the first reading.

However, at the second reading the full plenary of the European Parliament voted by 540 votes in favour of the formula, i.e. for the energy recovery status of efficient WTE plants, with only 128 votes against.

The next step was to alleviate fears that energy recovery could hamper recycling efforts. The WFD sets ambitious recycling targets for household and similar waste of at least 50% of paper, glass, metal and plastic waste by 2020, as well as at least 70% recovery of non-hazardous construction and demolition waste.

The following was also agreed: The waste hierarchy (1 prevention; 2 reuse; 3 recycle; 4 recover; 5 dispose) must be applied as a ‘priority order’. Diverting from the hierarchy is possible, but only if justified by life-cycle thinking.

Regarding end-of-waste the candidates for developing specific criteria are aggregates, paper, glass, metal, tyres and textiles. The Commission’s Joint Research Centre is currently developing the methodology for the determination of end-of-waste criteria and the Commission is expected to launch public consultation on this item soon.

The WFD was formally adopted during the Environment Council meeting on 20 October 2008. It will shortly be published in the EU Official Journal, entering into force on the twentieth day following its publication. The Member States will then have two years to implement the directive into national law.

New Industrial Emissions Directive

The Industrial Emissions Directive foresees merging a number of sectoral directives such as the Waste Incineration Directive with the Integrated Pollution Prevention Control (IPPC) Directive. The Commission’s proposal,6 delivered on 21 December 2007, moves towards a level playing field, which is positive in principle.

However, in Article 16 and 18 the Commission foresees that: ‘The competent authority shall set emission limit values that do not exceed the emission levels associated with the best available techniques as described in the BAT reference documents.’

This means making Emission Limit Values (ELV) equal to Associated Emission Levels (ALV) which are given in the BREFs (Best Available Technique Reference documents).

As the BREFs are not taken seriously in all Member States, the Commission’s aim to make them ‘more prominent’ is understandable. A more harmonized implementation of the BREFs would move towards a level playing field within Europe. The integrated approach of IPPC and the BREFs are in principal a good basis. They should be properly implemented within the Member States.


The Astria waste-to-energy plant in Bordeaus, France Click here to enlarge image

However, making ELVs directly from the BATAELs described in the BREFs, thus giving the BATAELs a quasi legally binding character, causes many problems in practice.

The BREFs point out the following:7 ‘It should be stressed, however, that this document does not propose emission limit values. The determination of appropriate permit conditions will involve taking account local, site-specific factors such as the technical characteristics of the installation concerned, its geographical location and the local environmental conditions.’

The Commission, however, foresees that these factors (also stated in the current IPPC Directive in article 9, paragraph 4) should only be taken into account in the future as an exemption.

The preface of the BREFs stresses: ‘Even the single objective of ensuring a high level of protection for the environment as a whole will often involve making trade-off judgements between different types of environmental impact, and these judgements will often be influenced by local considerations.’

The BREF Waste Incineration itself explains the difference in Chapter Five: ‘The ELVs that appear in the various regulations applicable to incineration have been used in equipment supply contracts as minimum performance guarantee levels for plant suppliers, to be achieved under the most adverse of operating conditions. This then leads to a situation where in actual operation, some incineration installations show operational emissions that are significantly below the ELVs. It is, therefore, important to appreciate the difference between the operational performance levels that are given as BAT in this chapter, and the higher ELVs that have given rise to this level of performance …

‘When interpreting the emission and performance levels associated with the use of BAT as reported in this chapter it is essential that the reader understands the following:

Emission and performance levels associated with the use of BAT are not the same as ELVs Compliance with the ELVs set in permits and legislation naturally results in operational levels below those ELVs It is important to note that, at a particular installation, lowering an emission level within the BAT range presented here may not represent the best overall solution considering costs and cross-media effects. Additionally, antagonism may exist between them, i.e. lowering one may increase another. For these reasons, it is not anticipated that an installation would operate with all parameters at the lowest levels in the BAT ranges.’

The BREF drafting (Seville) process is a well established and recognized process where valuable information is exchanged. Reaching consensus on BATAELs would become enormously difficult if they will ultimately become ELVs, thus politicized. If the BREFs are given a legally binding quality, the whole adoption process for the BREFs must be reconsidered to make it workable.

It also has to be taken into consideration that the quality of the BREFs differs widely. While the BREF Waste Incineration is very detailed and contains a great deal of information based on long-term experience, other BREFs are not so detailed. So those who openly provided information on their technology will be disadvantaged if the BATAELs become legally binding ELVs. This is not in line with a level playing field and it endangers the whole future of the BREF development process as industry will become much more cautious about openly providing information and experience.

The European Parliament’s Rapporteur, Holger Krahmer, MEP (Liberals, Germany), understood the problem and tried to propose some improvements in his report8. He also proposes more participation of interested parties, particularly the industry concerned, whereas the Commission reserves many rights for itself, among other things, to revise the BREF documents itself.

The deadline for tabling amendments in the European Parliament’s Environment Committee was 16 September 2008, and about 500 amendments have been tabled. The vote in the Environment Committee takes place in January 2009 and in the EP plenary in March 2009 for the first reading. As a new Parliament will be voted in June 2009 (and a new Commission installed), any prediction of the further timing of this directive is very vague.

The ‘Energy Package’

The ‘Energy Package’ was published by the Commission on 23 January 20089, proposing how to achieve the ‘20 20 by 2020’ targets, i.e. 20% energy from renewable sources, plus 20% reduction of CO2 emissions, by 2020. A first reading agreement between Parliament and Council is expected to be rubber-stamped by the end of this year.

The package includes, inter alia, proposals on:

A directive on the promotion of the use of energy from renewable sources10 (RES Directive) A directive to improve and extend the greenhouse gas emission allowance trading system, running from 2013 to 202011 (ETS) A decision on the effort of Member States to reduce their greenhouse gas emissions to meet the Community’s greenhouse gas emission reduction commitments up to 2020.12 (This decision covers emissions from sectors not included in the ETS such as transport, buildings, services, agriculture and waste.)

However, there are some members of the European Parliament suggesting that waste facilities should be included within the EU Emissions Trading System.

The most relevant part of the ‘Energy Package’ to the WTE sector is the RES Directive, which aims to boost the generation of electricity, heating and cooling from renewable energy sources. The main concern for the WTE industry is the approach taken by the Parliament’s Rapporteur, Claude Turmes (Greens, Luxembourg), to change the current biomass definition into: ‘Biomass’ means the biodegradable fraction of products, waste and residues from agriculture (including vegetal and animal substances), aquaculture, forestry and related industries, the separated collected biodegradable fraction of industrial and municipal waste as well as wastewater sludge.’

Whereas the Environment Committee on 7 July 2008 rejected the idea of adding the wording ‘separated collected’, the responsible ITRE (Industry and Energy) Committee voted in favour of the above mentioned definition of biomass on 11 September 2008. The wording ‘separated collected’ before ‘biodegradable fraction of … waste’ would mean that the remaining waste, i.e. after source separation and recycling, which is transformed into energy by WTE plants, could be disregarded although, in the remaining municipal waste the biodegradable part is still quite high (more than 50%).

This was just recently stated by the German Federal Environment Agency UBA, pointing out that: ‘The energy content of residual waste from human settlements is about 50% biogenic content, which can be classed as carbon dioxide-neutral13’. According to a study from Germany, where source separated biowaste collection is advanced, the biogenic fraction in the waste is 62%.14

In the Netherlands, as in other countries, electricity produced from the biodegradable part of municipal waste is recognized as renewable energy. Due to the inhomogeneous composition of waste it is difficult to determine the share of renewable energy produced by a WTE plant. Therefore the Dutch government establishes each year the share of renewable electricity, using a calculation based on compositional information.

Despite the fact that the Netherlands has installed an efficient system of source separation, there is still a big remaining part in the municipal waste which is biodegradable. For the year 2008, for instance, the ministry of economic affairs determines that 48% of the electricity production of WTE Plants comes from the biodegradable fraction of municipal waste.

Continuous measurements of the biomass content in the remaining municipal waste (i.e. after source separation) undertaken in Flanders (which is also progressed in recycling and separated waste collection, including biowaste) has found that the remaining waste still contains about 50% biomass.

This significant biodegradable fraction must not be disregarded. Therefore, the current Directive 2001/77/EC on promotion of electricity from renewable energy sources recognizes, with good reason, the biodegradable fraction of municipal waste as biomass, thus as renewable energy source.

There is no reasonable justification that the most cost-effective and reliable option of energy production from renewable energy sources, i.e. energy production from waste (circa €43 per tonne CO2 saving, whereas for other renewable energy sources the costs to save one tonne of CO2 multiply) should suddenly be excluded from the biomass definition.

The definition of biomass in the RES Directive should not be misused to try to orientate waste collection as this is tackled in the Waste Framework Directive.

Summary

The Waste Framework Directive clarifies conditions under which a WTE plant can be classified as an energy recovery operation. This provides more legal clarity, although some details, for example with regard to the application of the energy efficiency formula, still have to be determined. This piece of legislation clearly provides incentives to improve energy efficiency. However, one has to consider that some existing plants are located in areas, without heat demand, so their improvements in higher energy efficiency are limited.


The new waste-to-energy plant operated by Ekokem in Finland Click here to enlarge image

For new WTE plants it is essential to locate themselves close to possible consumers of steam, heat, district heating and (more and more prominent) cooling. Improvements in infrastructure and access to the grid are also essential in order to perform with high energy efficiency.

Building WTE plants close to potential consumers requires public acceptance. This will hopefully improve, bearing in mind that WTE plants have to comply with the most stringent emission limit values set in the Waste Incineration Directive (WID). Therefore, the new Industrial Emissions Directive does not foresee change in the Emission Limit Values set in the WID, but to approach a level playing field with regard to other sectors.


The SYSAV waste-to-energy plant in Malmö, Sweden Click here to enlarge image

The Renewable Energy Sources Directive is supposed to wake ‘the sleeping giant biomass’. Considering the biodegradable part of waste as biomass, this piece of legislation can help to boost energy production from waste. If it goes into the right direction it will not only promote electricity (as in the current 2001/77/EC Directive), but also heating and cooling from waste thus helping Member States to achieve their ambitious targets for energy production from renewable energy sources. However, should decision-makers decide not to count the biodegradable waste as a renewable energy source, EU 27 will definitely have even more difficulties achieving these targets.

Dr Ella Stengler is Managing Director of Confederation of European Waste-to-Energy Plants
e-mail: ella.stengler@cewep.eu

Notes

1. If Europe totally succeeds in diverting waste from landfills, capacity for more than 50 million tonnes of municipal solid waste would be necessary according to FFact study: http://www.cewep.eu/studies/climate-protection/art230,309.html

2. Adopted text, European Parliament, second reading: http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P6-TA-2008-0282+0+DOC+XML+V0//EN&language=EN.

3. For more details on the formula see Stengler, Waste Management World, November/December 2006 edition

4. Council Decision of 17 July 2006, amending Decision 1999/468/EC, laying down the procedures for the exercise of implementing powers conferred on the Commission, Official Journal of the EU, 22/7/2006, L 200/11

5. Legal power shared by Council and Parliament

6. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007PC0844:EN:NOT.

7. http://eippcb.jrc.ec.europa.eu/

8. http://www.europarl.europa.eu/meetdocs/
2004_2009/documents/pr/725/725932/725932en.pdf.

9. http://ec.europa.eu/energy/climate_actions/index_en.htm and http://ec.europa.eu/environment/climat/climate_action.htm

10. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52008PC0019:EN:NOT

11. http://ec.europa.eu/environment/climat/emission/ets_post2012_en.htm.

12. http://ec.europa.eu/environment/climat/pdf/
draft_proposal_effort_sharing.pdf.

13. See press release: http://www.umweltbundesamt.de/uba-info-presse/2008/pd08-052.htm

14. Öko-Institut: http://www.itad.de/storage/med/docs/energie/ 12_beroekoin02.pdf?fCMS=98943b1eb821c749e83d905e6723e18b