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Up for review – what the BAT Conclusions on Waste Incineration mean for energy-from-waste operators

Environmental permits for the majority of energy-from-waste installations must contain conditions imposing emission limit values on the polluting substances identified in the Industrial Emissions Directive (2010/75/EU) (“the Directive”) as well as on any other polluting substance which is likely to be emitted in significant quantities, having regard to its nature and its potential to transfer pollution from one medium to another, e.g. pollution channelled into the air or water courses.

These emission limit values must be set to ensure that, under normal operating conditions, emissions do not exceed the emission levels expressed in the best available techniques (“BAT”) conclusions of the European Commission. Within four years of BAT conclusions being published, the Environment Agency must review the conditions attached to the environmental permits for relevant installations for compliance with these emission limit values. If the extant conditions do not ensure compliance, the Environment Agency must ‘update’ the conditions in order to do so.

The Commission Implementing Decision (EU) 2019/2010 of 12 November 2019 establishing BAT conclusions for waste incineration (“the Decision”) was published on 3 December 2019. Through the Environment Agency updating permit conditions, this Decision could require energy-from-waste operators to engage in expensive retrofitting work to bring their installations into compliance. In addition, the Environment Agency has confirmed that it will charge operators for reviewing permits, despite it being mandatory.

The previous emission limit values were laid out in the Directive. In contrast to the Directive, the Decision expresses the majority of emission limit values as a range, rather than as a fixed figure. In an attempt to provide clarity, the Decision identifies installations for which the lower end of the relevant range is either appropriate or unachievable. For example, in relation to Nitrogen Oxides, the lower end of the range of 50 mg/Nm3 “may not be achievable when incinerating waste with a high nitrogen content”. For such installations, it is therefore anticipated that the permit conditions will seek to ensure compliance with a higher emission limit value than the lower end of the range.

The Environment Services Association is currently assisting the Environment Agency with its assessment of the practical impact on energy-from-waste operators. Once completed, the Environment Agency will issue guidance to the industry on how the Decision is going to be implemented. It is not yet known how the limit ranges will be applied. Whilst the industry largely already operates below the upper end of the ranges in the Decision, if the Environment Agency sets emission limit values below those maximum values, operators could be faced with the considerable cost of meeting updated, more onerous conditions in their permits.

Plants incinerating biomass fall outside the scope of the Decision. A biomass incinerator with a total rated thermal input of 50 MW or more will instead fall under the BAT reference document for Large Combustion Plants (“BREF LCP”). The Environment Agency has recognised that biomass incinerators with a total rated thermal input below 50 MW do not appear to fall within the scope of either the BREF LCP or the Decision. Where this is the case, the Environment Agency has indicated that it will still use the Decision’s emissions limit values as the reference point when reviewing the permits for such plants.

In individual cases, the Environment Agency can set less strict emission limit values if the operator can prove that achieving the values described in the Decision would lead to disproportionately higher costs compared to the environmental benefits due to either the geographical location, local environmental conditions or technical characteristics of the installation concerned.

Guidance produced by DEFRA in February 2013 (“the Guidance”) adds colour to these criteria. The geographical location criterion might be satisfied where, for example, the installation is in a remote location such that construction or energy supply costs are greater than normal. The local environmental conditions criterion might be satisfied where additional costs would have to be incurred due to installation being situated in a built-up area. The technical characteristics of an installation is the widest of the three and might extend, for example, to allowing a plant close to the end of its operational life to operate above the emission limits.

If less strict emission limit values are applied to an individual case, the Environment Agency must still ensure that no significant pollution is caused and that the environment is protected to a high level.

Practical considerations

Whilst the Environment Agency’s guidelines on how the Decision will be implemented have not yet been published, energy-from-waste operators should already be considering how their installations will be affected by the Decision. For example, whilst the Directive required (in the majority of cases) at least two air pollution measurements per year for heavy metals, including mercury, the Decision will now require mercury to be monitored continuously at any plant which is incinerating waste that does not have a proven low and stable mercury content. The Environment Agency will determine whether continuous mercury monitoring is required for individual plants. This would necessitate a specialist analyser which is expensive to both install and maintain. Another example is sulphur dioxide, which under the Directive had an emission limit value (as a daily average) of 50 mg/Nm3; under the Decision, for existing plants, the maximum emission limit value has been reduced to 40 mg/Nm3.

The guidelines will hopefully provide certainty for energy-from-waste operators. Until they are published, an operator would be prudent to avoid taking any steps which increase its installation’s current emission levels, even if that increase does not breach the conditions of the existing permit.

[1] Plants with an incineration capacity exceeding 10 tonnes per day for hazardous waste or 3 tonnes a day for non-hazardous waste or any plant incinerating (other than incidentally) gaseous compounds containing halogens; see Environmental Permitting (England and Wales) Regulations 2016 (SI 2016/1154) Regulation 2(1), Schedule 1 Section 5.1 Part A(1), and Schedule 7 paragraph 1.

[2] A list of these substances can be found at Annex II to the Directive

[3] Emission levels to air in the Decision refer to concentrations, expressed as mass of emitted substances per volume of flue-gas or of extracted air under the following standard conditions: dry gas at a temperature of 273,15 K and a pressure of 101,3 kPa.

[4] Industrial emissions Directive EPR Guidance on Part A installations (Feb. 2013)