“Refuse derived fuel (RDF) consists of residual waste that is subject to a contract with an end-user for use as a fuel in an energy from waste facility. The contract must include the enduser’s technical specifications relating as a minimum to the calorific value, the moisture content, the form and quantity of the RDF.”
“The Contractor shall provide a complete gasification facility receiving RDF prepared by others from waste. The scope of Works shall include all Site infrastructure, buildings, roads, services, offices, amenities, workshops, stores, plant, equipment, landscaping, security fencing and all associated amenities and facilities. This Schedule must be read in conjunction with all parts of Schedule 22. The Site is located at Cleveland Street and Dalton Street, Hull, HU8 8AD, as more particularly defined by the areas shown on the Site drawings included in Appendix B to this Schedule 1 (Description of the Works). The Works shall comply in every respect with the conditions attached to the Planning Consent and the Environmental Permit and any separate undertakings made within the Environmental Application, provided such undertakings do not contradict or conflict with the Environmental Permit. The contractor accepts responsibility for satisfying the Environment Agency with regard to the applicable criteria in the Environmental Permit. The Site Layout shown in Schedule 22E reflects the project as presented to the planning committee and was granted consent to be built. The Contractor shall be responsible for ensuring compliance with those conditions of the Planning Consent, which are stated as being the responsibility of the Contractor as identified in the planning responsibility matrix contained in Schedule 22F…”
“The Contractor shall assist the Purchaser with the interfaces with the following third parties and authorities, including but not limited to: (1) Environment Agency; (2) Planning Authority and building control department; (3) local electricity distribution network operator (DNO); (4) Low Carbon Contract Company (LCCC); (5) Ofgem and/or other agencies in charge of managing the Contract for Difference requirements …”
“The Works or parts thereof shall comply in all respects with all the relevant legislation including the health & safety regulations, the CDM Regulations and all relevant Environment Agency guidance as may need to be satisfied in accordance with the Environmental Permit or other express requirements of the Environment Agency specific to the Works… The contractor shall include in his Contract Price all design submissions, reports, adaptations, connections, calibrations and any other requirements needed for testing to satisfy the Environment Agency that the Plant complies with the requirements of the IED and its Environmental Permit.”
“the maximum mass flow rate of steam in tonnes per hour from the final superheater delivery connection, at the guaranteed delivery conditions of pressure and temperature, which the boiler is capable of maintaining between plant shutdowns without use of the auxiliary burners.”
“During the Reliability Test the Works shall at all times run in compliance with each of the following: • this Contract; • the Industrial Emission Directive; • the Planning Consent; • the Environmental Permit; and • all other Applicable Regulations.” • this Contract; • the Industrial Emission Directive; • the Planning Consent; • the Environmental Permit; and • all other Applicable Regulations.”
“For the purposes of the Reliability Test, the Plant shall be considered “Available” if: (1) the net electrical export exceeds 90% of the guaranteed net electrical export as per the Guaranteed Performance Level (Performance Acceptance Criteria) specified in Schedule 17 (Performance guarantees and damages for failure); and (2) the monthly average syngas GCV [Gross Calorific Value] is minimum 2.0 MJ/m 3 in each month or part thereof at the reference conditions of 25 0C and 0.1 MPa.”
“The Plant shall qualify as a Recovery facility with an R1 number of 0.65 or greater, in accordance with the Waste Framework Directive, when operating at MCR.”
“It is recognised that for the purpose of performance acceptance testing, it is not practical to accurately assess the fuel throughput and energy content by weighing, sampling and analysis. Neither is it possible to directly measure the heat release by the use of the fuel. The only measurable parameter which directly relates to the heat release from the fuel is therefore the heat transferred to the boiler feedwater and delivered by the boiler as live steam. The guarantee is therefore the heat release from the fuel, using the steam boiler as a calorimeter, and determining the heat release by the loss assessment method in accordance with BS EN 12952-15. The heat release is determined against reference conditions dictated by the Contractor’s design and stated in Schedule 16…”
“(5) ACT – the plant is demonstrated to the satisfaction of Ofgem and/or other agencies in charge of managing the Contract for Difference requirements that it meets the definition of Advanced Combustion Technology as defined in the Contract for Difference under the full range of firing conditions shown on the Firing Diagram and under the full range of input conditions… Compliance. (6) Syngas GCV – minimum syngas GCV at the reference conditions of 25 0C and 0.1 MPa, measured with Plant operating at 85% MCR and fuel NCV between 10 and 11.0 MJ/kg… 2.0[MJ/m 3]. (7) Waste Framework Directive – the Plant (while operating at 100% MCR) shall meet the requirements of the Waste Framework Directive R1 and be classed as Recovery under the full range of input conditions… R1>0.65.”
“The Contractor shall design, manufacture and deliver the Plant based on the RDF parameters described below… The material supply to the facility will be refuse derived fuel (RDF). RDF may be derived from either municipal solid waste (MSW) or commercial and industrial waste (CIW). The Purchaser shall have an appropriate quality management system in place to ensure that the RDF is in accordance with Table 22A.2.0 – Incoming RDF Specification.”
“The MPT plant will receive loose and baled RDF inputs as specified in clause 1.3.2 above. The Contractor shall design, manufacture and deliver a mechanical pre-treatment (MPT) plant to treat the incoming RDF as defined in clause 1.3.2 and Table 22A.2.0 above and to: • reduce the size of the RDF to meet the requirements in Table 22A.2.2 • reduce the percentage of non-combustible ferrous and non-ferrous metals, non-combustible glass and noncombustible inert materials in the incoming RDF to produce a fuel to the gasifier as defined for these parameters in Table 22A.2.2 and 22A.2.3 below.”
“The Hull Energy from Waste Project involves the delivery of a complete gasification facility receiving RDF prepared by others from waste … The Works inclusive of the Subcontract Works shall comply in every respect with the conditions attached to the Planning Consent and the Environmental Permit …”
“The Subcontract Works shall comprise the installation of a Gasification Plant as part of the Main Contract Works. The Gasification Plant is being manufactured by Outotec USA Inc, and shall be delivered to site and issued to the Subcontractor for installation … The Subcontract Works shall include but not be limited to taking delivery, install, test and handover for commissioning all free issue materials and equipment comprising the Gasification Plant as described in the Appendix C documentation; and the provision of all necessary management, site supervision, labour, plant, cranage, welding consumables and gases …” 35.Site is defined in the Special Conditions as: “the areas within which the Works are to be carried out as identified on the drawing referred to in Schedule 1.”
“a mechanical pre-treatment plant and a gasification plant, incorporating a complete gasification, combustion, heat recovery, flue gas treatment plant and steam turbine generation set.”
“This Clause 47 applies only to the extent (if any) required by theConstruction Act 1996 , as amended.”
“… either party shall have the right to refer any dispute or difference … as to a matter under or in connection with the Subcontract to adjudication and either party may, at any time, issue a Notice (a ‘Notice of Adjudication’) to the other stating his intention to do so. The ensuing adjudication shall be conducted in accordance with the edition of the ‘Adjudication Rules’ published by IChemE current at the time of service of the Notice of Adjudication.”
“The decision of the adjudicator shall be binding until the dispute is finally determined by legal proceedings, by arbitration or by agreement.”
“(1) A party to a construction contract has the right to refer a dispute arising under the contract for adjudication under a procedure complying with this section. For this purpose “dispute” includes any difference. (2) The contract shall include provision in writing so as to – (a) enable a party to give notice at any time of his intention to refer a dispute to adjudication … (3) the contract shall provide in writing that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration (if the contract provides for arbitration or the parties otherwise agree to arbitration) or by agreement.”
“(1) In this Part a “construction contract” means an agreement with a person for any of the following – (a) the carrying out of construction operations …” (a) the carrying out of construction operations …”
“(1) In this Part “construction operations” means, subject as follows, operations of any of the following descriptions … (b) construction, alteration, repair, maintenance, extension, demolition or dismantling of any works forming, or to form, part of the land, including (without prejudice to the foregoing) … industrial plant … (c) installation in any building or structure of fittings forming part of the land, including (without prejudice to the foregoing) systems of heating, lighting, air-conditioning, ventilation, power supply … (2) The following operations are not construction operations within the meaning of this Part … (c) assembly, installation or demolition of plant or machinery … on a site where the primary activity is – … (b) construction, alteration, repair, maintenance, extension, demolition or dismantling of any works forming, or to form, part of the land, including (without prejudice to the foregoing) … industrial plant … (c) installation in any building or structure of fittings forming part of the land, including (without prejudice to the foregoing) systems of heating, lighting, air-conditioning, ventilation, power supply … (c) assembly, installation or demolition of plant or machinery … on a site where the primary activity is – (i). … power generation …”
“Production of Electricity”
“[12] … The Act was intended to put right problems that were perceived to exist. It is well known that the Actlegislates for only a small number of the reforms or changes in practice that were thought to be required (some of which will not be eradicated by passing new laws). Accordingly not only must it be assumed that the Actwas carefully drawn up but it is also plain that great care was taken in selecting the construction operations that were to be exempt and in defining the circumstances where they might be found. Parliament and the Ministers responsible were informed by the discussions prior to the relevant sections (or clauses) being presented to Parliament, by consultations within the industry, sections of which must have had compelling arguments for exemption, and above all, no doubt, by the inquiries and soundings by the Department of the Environment (as it was then known) which had unrivalled knowledge of the construction industry. A most thorough investigation was evidently carried out for otherwise the Government and Parliament could not have been convinced that certain sectors of the construction industry were already so well organised that no regulation of any of their contracts or subcontracts (at whatever level or tier) was needed. Indeed one cannot be but impressed by the detail of the work done, presumably by officials by the DOE: drilling for oil and gas is excluded but drilling for water (even if it is ultimately to be treated) is not; a project for tunnelling to lay a sewer (even if it is going to a sewage works) or to construct a railway has to be regulated but not a project requiring a tunnel for minerals; installing plant for nuclear processing, and power generation, or for water and effluent treatment is excluded but not plant for an incinerator. The wide immunity given to work in, for example, the water, oil and gas industries must be seen as is a tribute to them (and for all who carry out construction work for them) either for the absence of malaises which had been found to bedevil others, such as the prevalence of disputes and the presence of "pay when paid" clauses, or for the fact that the reforms required by the Act were not needed or had been carried out (as Judge Thornton recorded in paragraph 29 of his judgment in ABB v Palmer). Moreover it is two years since the Act came into force and no alteration has been thought necessary under the powers given by section 105(3) (with one exception which is not material to the present case). [13] Mr Blackburn submitted that section 105 (2) should be read as a whole. I agree. It must also be read in the context of sections 104 and 105(1). In my judgement section 105(2) when compared with section 105(1) therefore shows that it was the intention of Parliament that exception should be given by applying an additional and different test: was the object of the construction operation to further the activities described in section 105(2)(c) (and in paragraphs (a) and (b)) since in those industries or commercial activities it was not thought necessary that at any level there need be a right to adjudicate or to payment as provided by the Act. Subsection 105(1) provides conventional descriptions of various kinds of work or services. Paragraph (d) of subsection 105(2) does the same. In contrast the remainder of the subsection, whilst outlining an operation, qualifies it by reference to the ultimate purpose for which the operation is required… paragraph (c) makes explicit the need to identify the site or location of the activity and to ensure that it is the primary or dominant activity since of course the activities listed may be ancillary to the principal activity. The reason must in my judgment lie in the purpose of the legislation …”
“[62] All of the difficulties here, in both the old and the new proceedings, can be traced back to s.105 of the 1996 Act and the legislature's desire to exclude certain industries from adjudication. A review of the debates in Hansard reveal that Parliament was aware of the difficulties that these exceptions would cause, but justified them on the grounds that (i) adjudication was seen as some form of 'punishment' for the construction industry from which (ii) the power generation and some other industries should be exempt, because 'they had managed their affairs reasonably well in the past'. [63] I consider that both of these underlying assumptions were, and remain, misconceived. Adjudication, both as proposed in the Bill and as something that has now been in operation for almost 20 years, is an effective and efficient dispute resolution process. Far from being a 'punishment', it has been generally regarded as a blessing by the construction industry. Furthermore, it is a blessing which needed then - and certainly needs now - to be conferred on all those industries (such as power generation) which are currently exempt. As this case demonstrates only too clearly, they too would benefit from the clarity and certainty brought by the 1996 Act.”
“[1] The twin purposes of theHousing Grants, Construction and Regeneration Act 1996 , as amended by theLocal Democracy, Economic Development and Construction Act 2009 (together referred to as "The Act") was to improve cash flow in the construction industry, and to streamline its dispute resolution process. The former aim was achieved through mandatory provisions relating to interim payments, payment notices and the like, and the latter through a new, compulsory scheme of construction adjudication. The Act has been, on any view, a considerable success. [2] Unfortunately, the Act is not as comprehensive as it might have been. It was suggested during the Parliamentary debates that the then Government was (in the words of Lord Howie of Troon) "got at by some big, powerful, important interests in what are called the process industries. They yielded to those pressures and in so doing lost sight of the aim of the Bill." Whatever the reason for it, many contracts for works which, on any sensible definition, are construction operations, were excluded from the ambit of the Act…”
“Whereas (19) The definitions of recovery and disposal need to be modified in order to ensure a clear distinction between the two concepts, based on a genuine difference in environmental impact through the substitution of natural resources in the economy and recognising the potential benefits to the environment and human health of using waste as a resource. (20) This Directive should also clarify when the incineration of municipal solid waste is energy-efficient and may be considered a recovery operation. (31) The waste hierarchy generally lays down a priority order of what constitutes the best overall environmental option in waste legislation and policy, while departing from such hierarchy may be necessary for specific waste streams when justified for reasons of, inter alia, technical feasibility, economic viability and environmental protection. (37) It is necessary to specify further the scope and content of the waste management planning obligation, and to integrate into the process of developing or revising waste management plans the need to take into account the environmental impacts of the generation and management of waste. Account should also be taken, where appropriate, of the waste planning requirements laid down in Article 14 of Directive 94/62/EC and of the strategy for the reduction of biodegradable waste going to landfills, referred to in Article 5 of Directive 82. 1999/31/EC.”
“(1) ‘Waste’ means any substance or object which the holder discards or intends or is required to discard. … (9) ‘Waste management’ means the collection, transport, recovery and disposal of waste, including the supervision of such operations and the after-care of disposal sites, and including actions taken as a dealer or broker. (10) ‘Collection’ means the gathering of waste, including the preliminary sorting and preliminary storage of waste for the purposes of transport to a waste treatment facility. … (14) ‘Treatment’ means recovery or disposal operations, including preparation prior to recovery or disposal. (15) ‘Recovery’ means any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise 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. … (19) ‘Disposal’ means any operation which is not recovery even where the operation has as a secondary consequence the reclamation of substances or energy. Annex I sets out a nonexhaustive list of disposal operations.”
“(a) prevention; (b) preparing for re-use; (c) recycling; (d) other recovery, e.g. energy recovery; and (e) disposal.”
“Certain specified waste shall cease to be waste within the meaning of point (1) of Article 3 when it has undergone a recovery, including recycling, operation and complies with specific criteria to be developed in accordance with the following conditions: (a) the substance or object is commonly used for specific purposes; (b) a market or demand exists for such a substance or object; (c) the substance or object fulfils the technical requirements for the specific purposes and meets the existing legislation and standards applicable to products; and (d) the use of the substance or object will not lead to overall adverse environmental or human health impacts…”
“D10 Incineration on land.”
“R1 Use principally as a fuel or other means to generate energy. … This includes incineration facilities dedicated to the processing of municipal solid waste only where their energy efficiency is equal to or above: - 0,65 for installations permitted after31 December 2008 …”
“Government’s main focus is on preventing waste in the first place or, where it does arise, ensuring it is viewed as a valuable resource, ideally reusing or recycling it. However, it is also Government policy that efficiently recovering energy from residual waste has a valuable role to play in both diverting waste from landfill and in energy generation. In recent decades, the use of fossil fuels such as gas, oil and coal have been contributing to climate change and it is necessary to find ways to generate energy through other means.”
“The proposals are for an energy park that generates electricity and biomethane from biodegradable material and renewal sources through low carbon energy generation facilities providing up to but not exceeding 25.5MWe and 900,000 therms of gas energy, comprising of: A 25 MWe Advanced Gasification plant which will gasify Solid Recovered Fuel (SRF) produced onsite from commercial, industrial and municipal sources, the end product of In Vessel Composting, pre-processed SRF and processed waste wood. These materials will be gasified to produce electricity for the purpose of exporting it [to] the national grid…”
“Is the proposal a waste management development?”
“The main purpose of the proposed development is to generate electricity and gas rather than as a waste disposal facility. However, a positive consequence is the diversion of waste from landfill…”
“The UK needs around 30-35 Giga Watts over the next two decades to replace power station retirements and meet rising electricity demand, as the economy grows. The Climate Change Act (2008) sets a legally binding target for the UK to cut greenhouse gas emissions by at least 80% by 2050 against the 1990 baseline ... As a consequence, the Government is encouraging the generation of power from renewable sources via various [policies] … The Proposed Development will not only work towards meeting the increasing energy demand but will facilitate the generation of the energy required through the use of new cleaner technology. It will contribute up to 25.5 MWe towards Hull’s target to provide 39 MWe renewable energy to the national grid by 2021. The Proposed Development will mean that material that would normally be disposed to landfill will be utilised as feedstock ... contributing to ... [the reduction of] material sent to landfill… Key beneficial impacts associated with the scheme include: • Energy generation through the use of new, cleaner technology; • Contribution of up to 25.5 MWe towards Hull’s target … carbon savings of 51,140; • Diversion of material from landfill …” • Energy generation through the use of new, cleaner technology; • Contribution of up to 25.5 MWe towards Hull’s target … carbon savings of 51,140; • Diversion of material from landfill …”
“the Development of an energy works consisting of various buildings and plant (such as silos, conveyor belts, air cooled condensers, weighbridges and stack – 70m [230ft] high) which will produce sustainable electricity and biomethane through Advanced Gasification (25Mwe), Anaerobic Digestion (900,000 therms) and Solar Photovoltaics (0.5Mwe)…”
“Energy works (integrated waste energy facility) development The proposed development is an integrated waste facility consisting primarily of waste disposal facility that would also include the installation of the following low carbon energy generation facilities, providing up to but not exceeding 25.5 megawatt electrical output (MW) and 900,000 therms of gas, as follows: 1. The anaerobic Digestion (AD) plant… 2. An Advanced Gasification plant (25MW), which will use a variety of fuels including Solid Recovered Fuel (SRF) (produced on site from commercial, industrial and municipal sources), the end product of In-Vessel Composting, preprocessed SRF, and processed waste wood. It is anticipated that the Gasification plant will process 24,000 kilograms (kg) of material per hour to produce steam, which in turn will be used to power a genitor to export electricity to the national grid; and 3. Roof mounted solar panels... The Dalton Street site will receive up to 365,000 tonnes per annum (TPA) consisting of waste unprocessed commercial/industrial/municipal material and unprocessed organic material … the Cleveland Street site will receive up to 115,000 TPA consisting of raw material for the operation of the facilities and solid recovered fuel… The gasification plant proposed is a disposal facility, and so ranks alongside landfill. It is not efficient enough to be classified as an energy recovery facility… The purpose of this proposal is to seek planning permission for an energy park incorporating ‘green’ technologies utilise to generate energy via the introduction of an alternatively sourced feedstock… It is proposed that principally the main technologies will provide a solution for the generation of electricity via an Advanced Gasification process and solar photovoltaic system and a solution for the generation of biomethane gas through the use of an Anaerobic Digestion technology. In vessel composting will also be employed. This proposal also seeks to provide a realistic solution to the question of landfill and the disposal of domestic and commercial material. … Mass-burn incineration is designed to receive unscreened material. By contrast, the gasification plant is designed to receive selected material which has been screened and sorted. It should therefore be seen as complementary to existing and further recycling schemes and as compliant with the waste hierarchy. … While it is feasible that the Energy works advance gasification plant could qualify as a Recovery plant (according to the Waste Framework Directive) we are not in a position to state this at this stage. The R1 ration (EU guidance on recovery) is heavily influenced by heat utilisation from the process …”
“Q. In [the climate change assessment] you’ll see that: “The main purpose of the Proposed Development is to generate electricity and gas rather than as a waste disposal facility. However, a positive consequence [is] the diversion of waste from landfill…”
“activity” means, subject to this Part, an activity listed in Part 2 of this Schedule; … “directly associated activity” … means an operation which – (a) has a technical connection with the activity, (b) is carried on on the same site as the activity, and (c) could have an effect on pollution …”
“Part A(1) … (b) Unless carried on as part of a Part A(2) or Part B activity, burning any – … (iii) fuel, manufactured from, or comprising, any other waste.”
“ ‘co-incineration’ means the use of wastes as a regular or additional fuel in a co-incineration plant or the thermal treatment of waste for the purpose of disposal in a co-incineration plant; ‘co-incineration plant’ means any stationary or mobile plant whose main purpose is the generation of energy or production of material products, and – (a) which uses waste as a regular of additional fuel; or (b) in which waste is thermally treated for the purpose of disposal. If co-incineration takes place in such a way that the main purpose of the plant is not the generation of energy or production of material products but rather the thermal treatment of waste, the plant must be regarded as an incineration plant. ‘Incineration plant’ means: any stationary or mobile technical unit and equipment dedicated to the thermal treatment of wastes with or without recovery of the combustion heat generated, including – (a) the incineration by oxidation of waste; and (b) other thermal treatment processes such as pyrolysis, gasification or plasma processes in so far as the substances resulting from the treatment are subsequently incinerated.”
“(b) The incineration of non-hazardous waste in a waste incineration plant or a waste co-incineration plant with a capacity exceeding 3 tonnes per hour.” incineration plant or a waste co-incineration plant with a capacity exceeding 3 tonnes per hour.”
“The incineration of non-hazardous waste in a waste incineration plant with a capacity exceeding 3 tonnes per hour. D10: Incineration on land.”
“Generation of approximately 28MWe electrical power using a steam turbine from energy recovered from the flue gases.”
“Now, the consequence of determining one versus the other in actual effect in the UK is negligible … In practice in the UK they’re treated the same …”
“This is an RDF plant. This is not a waste plant. There’s a difference. And this is what I say in my statement. You know, this is an RDF that’s derived from municipal waste or C&I waste. If you build a waste plant, what everybody thinks of as a waste plant, a black bin plant, it does not look like this. It is far more complex. You very often have an MBT or something on the back end as well. Certainly the ones that I’ve built. This is not a waste processing plant. This is an RDF polishing plant… … on the MRFs that I’ve built, they have RDF lines, and this would be one section of a MRF after the waste has gone through a lot of preparation - pre-preparation. This is why what comes in was produced to a specification. It’s not a waste processing plant.”
“In the case of refuse-derived fuel, the Waste Framework Directive is unequivocal. Refuse-derived fuel is a waste and it will always remain a waste forever. It is a waste because there’s no substantial change to that product, to that material to make it a product that is significantly different from the waste it originally was… In this case the RDF is minimally if at all treated and it is always a waste …”
“A. A MRF can be designed to produce fuel or it can be designed to remove recyclables, and it will be considerably different depending on the purpose of the design. Q. This is a MRF that produces RDF? A. Yes. Q. You accepted at least half of the waste does not go into the RDF? A. Yes.”
“The facility will primarily be accepting dry mixed municipal waste to produce RDF for onward transfer to the nearby Energy Works Energy from Waste Facility … for incineration …”
“Q. … in the Project Joule document, the estimates of gate fees and how much the gate fees were going to contribute to the financing of the plant were really very considerably underestimated, weren’t they? A. Yes, I do agree with that, but I should also say, and one of the tasks that I perform in energy pricing is looking at the pricing of commodities … when forecasting forward, that not only can the gate fee for RDF go up, but it can also go down considerably… whilst the price of RDF has gone up since the Project Joule information memorandum, it can also go down…”
“Q. … it’s not so much a subsidy as a sort of guarantee that if the price falls below the strike price which has been agreed, then the … scheme … will top that up, won’t they? A. Yes. Q. But it goes both ways, doesn’t it, because if the price actually goes up and … you’ve made more money from it than you were expecting, then the operator’s got to pay this company back, haven’t they? A. Absolutely, yes… So, you could call it capping. I think what you’re doing is you’re giving a guaranteed floor to the price to make sure that the operators have the certainty that they can run what is still a technology in its relative infancy compared to other forms of renewable electricity generation.”
“23. … the gasification process produces a gas with the potential to be used in high efficiency processes and it is complementary to recycling … the syngas production is gaining more importance to meet long term energy needs. Moreover, gasification technology is considered to be an emerging technology in the waste treatment sector requiring careful pretreatment of waste as opposed to simple ‘mass burn’ incineration, which does not require a highly conditioned feedstock. Consequently there is a capital cost related to the pretreatment plant, or – as applicable in the case of Energy Works – a lower gate fee is applicable to the RDF. This makes such a plant more expensive than a standard combustion plant… 29. Directive 2009/28/EC obliges Member States collectively to generate 20% of total energy from renewable sources by 2020 (using 1990 levels as baseline). In 2009 – 2010, the UK produced 6.6% of its electricity from renewable sources and so, requires further energy infrastructure deployment in order to reach the 20% mark in eight years time. The total power output from the Energy Works project will contribute to this target. 30. EU Parliament and Council Decision 406/2009/EC states that all Member States must cut green house gas emissions by 20% from 1990 levels. Energy Works project would help achieve this target by using sustainable sources to produce power – it would reduce carbon dioxide emissions by 92% compared to generating the same amount of power form the UK’s average fuel mix. Furthermore, Energy Works project contributes towards the 20% reduction target by preventing material to go to landfill and produce methane as a result… 43. Energy Works is active in electric power generation, waste collection, treatment and disposal activities; materials recovery in the area of Hull… 55. The Commission notes that, as Energy Works employs an innovative technology, to produce electricity from waste and as such it has a higher risk profile and demands a suitably high reward to attract investors. … 70. The Commission notes that in the absence of aid, Energy Works would not consider investing in an “energy from waste” gasification plant to generate electricity from biomass content of waste materials would in all likelihood choose the considerably cheaper alternative of building a Combined Cycle Gas Turbine electricity generating plant… 74. Energy Works plant will help to meet waste to landfill targets of reducing biodegradable municipal waste to landfill. According to the cost Benefit Analysis of Options the project will help to meet this target by diverting approximately 37,000 tonnes of residual waste away from landfill and approximately 150,000 tonnes of waste wood away from landfill on an annual basis once fully operational. The Commission notes that, even if the realization of this project might give an advantage to the beneficiary in obtaining future waste management contracts in the area, the proposed project clearly leads to a more environmentally friendly waste disposal management… 76. For these reasons, the Commission considers that the measure will contribute to mitigating the market failure related to the use of electricity generation from fossil fuels and, in particular, through a conventional gas-fired Combined Cycle Gas Turbine (CCGT) power plant in this case… 81. … the type of investment needed for the specific type of technology under consideration, i.e. advanced fluidized bed gasification, and for the high risks being considered, i.e. for a new and not proven technology, would be unlikely to be undertaken in the absence of ad hoc aid measures. The aid allows Energy Works to use … a more environmentally sustainable production process for electricity generation, which it would not otherwise be likely to use. 82. For these considerations, the commission concludes that the notified measure is an appropriate instrument to achieve the aim of reducing CO2 emission and in the same time contributing to the reducing biodegradable municipal waste to landfill.”