Comparative analysis of the waste-to-energy legal regime in Slovenia

Abstract
Since the adoption of the Waste Framework Directive and the Renewable Energy Directive, representing the cornerstones for waste to energy operations, Slovenia took a step forward by implementing the majority the environmental and energy EU legislation into the national legal order. The Republic of Slovenia is characterized by considerable cross-border waste streams, wherein the lack of the government’s initiative to determine heating plants for the Slovenian capital city Ljubljana and the second largest city Maribor in the national spatial plan, as well as a specific state public service regime have prevented the construction of these facilities in the past years. This has already encouraged the cities to pursue municipal waste recycling and recovery. 

From the perspective of an investor, a number of permits is required to install a waste to energy plant usually requiring a lengthy process and several hurdles to overcome. The financial support schemes and taxation incentives for renewable energy sources and combined heat and power plants do not provide for a favorable environment, neither does the absence of clear and pre-determined end-of-waste and by-product criteria in Slovene sectoral regulations. In practice, it is very difficult to lose the waste title under the Slovene legislation.

1 Introduction

The purpose of this comparative analysis is to provide an insight into the legal regimes of waste to energy operations generating energy, notably in the form of electricity and/or heat, as well as other energy products, from the treatment of waste following the national end-ofwaste regulation for waste based fuels and throughout accompanied by the data on waste streams in waste to energy operations in Slovenia.

This analysis is designed to compare the scope of the implementation and transposition of the environmental and energy legislation of the European Union (“EU”) into the respective Slovenian legal regimes. As such, it intends to identify problems and issues, which arose in practice or could arise from the perspective of a potential investor and, where possible, suggests statutory remedies to tackle with such issues. This comparative analysis is not intended to provide a comprehensive overview of the Slovenian environmental or energy legal framework, nor do we as legal practitioners intend to question the environmental, energy, technical or other aspects of practitioners in the respective fields, but merely intends to provide a starting point for the discussion about the specific areas of waste to energy operations as outlined hereunder.

Section 2.1. From waste management to energy production intends to provide a general overview of the environmental legislation in force with respect to waste management and specific sectoral regulations as highlighted thereafter. The factual background on national and cross-border waste shipments is presented in order to identify specific problems in the respective and following subsections. Section 2.1. is rounded up by waste streams considered to be appropriate for (co-)incineration and advanced thermal treatment operations promoted in energy production.

In Section 2.2. Installation and operation of energy plants we have focused on the main statutory requirements a potential investor would have to consider in order to implement and operate an energy plant in Slovenia. Furthermore, we have highlighted restrictions preventing him to do so. This section also provides an outline of the difficulties preventing the flourishing of waste to energy operations in Slovenia in the past years.

The renewable energy sources and combined heat and power incentives are described in Section 2.3. Energy and use of renewable sources. Following the definition of renewable energy sources, which is notably important for determining the financial incentives under the Borzen support scheme, we have further described the Eco Fund supports, state aids and de minimis aids schemes. This section also outlines tax allowances under Slovene legislation. 

Section 2.4. End-of-waste regulation focuses mainly on the end-of-waste and by-product regimes in Slovenia and the scope of implementation and transposition of the respective EU legislation into the national regime. Due to the Slovene legislator’s lack of impetus in this legal field, this section also provides a non-comprehensive overview of regulations with respect to products. 

For the purpose of this comparative analysis, we have reviewed the Slovene environmental, energy, construction and other legislation, as well as implementing regulations in the field of waste management and waste to energy operations. Slovenia’s accession to the European EU in 2004 resulted in a variety of EU directives and regulations transposed or implemented into the national regime; therefore, we have also reviewed the EU legal framework. 

2 Legal Framework

2.1 From waste management to energy production

This section’s redline is to provide a general overview of the Slovenian environmental legislation and specific sectoral regulations with respect to waste management in order to determine waste streams and waste treatment operations eligible for energy production.

2.1.1 Legal framework

The Environmental Protection Act1 represents the general legislative framework for waste management in the Republic of Slovenia, implementing the relevant EU legislation on environmental protection and waste management. Waste management is further governed by the Decree on waste2 and other sectoral regulations.

2.1.1.1 Waste Management

The Environmental Protection Act defines waste management as the collection, transport, recovery and disposal of waste, including the supervision of such operations, the after-care of disposal plants, waste trading and brokerage.

As a general rule, each polluter is bound to manage waste so as to prevent, recover waste, or, where the recovery is not possible, dispose of waste in a manner allowing for further treatment and respecting the waste hierarchy. Any uncontrolled waste management, as well as the abandonment or dumping of waste, is prohibited. Paper waste, metal waste, plastic waste and glass waste are to be collected separately, as will be any other waste classified for separate collection. As will be explained in more detail hereafter,3 waste recovery or disposal are subject to environmental permits, while waste collection, transport, brokerage and trading are subject to a decision of the Ministry of the Environment and Spatial Planning (“Ministry of the Environment”) on the fulfillment of the requirements of the Environmental Protection Act, and both categories of services are subject to the registration of the operator in the Environmental Register managed by the Slovenian Environment Agency4 and the performance of an environmental impact assessment by the Slovenian Environment Agency.5

The Decree on Waste incorporates the waste management hierarchy from the Waste Framework Directive6, for purposes of waste recovery: prevention, preparation for re-use, recycling, other recovery (e.g. energy recovery) and disposal.7 Waste may be disposed of, rather than recovered, if the state of the art does not allow for recovery, further use of the waste or its ingredients is impossible, the recovery costs are disproportionately higher than the disposal costs and the recovery is more environmentally damaging than disposal.

The Ministry of the Environment manages the information system with regard to waste treatment compiling information on the shipment of waste, the waste generated and its treatment, and the type, location and capacity of collection centers and waste treatment plants, with regard to each waste producer, waste collector and waste treatment provider. In addition, the Ministry of the Environment receives the waster producers’, collectors’ and treatment providers’ annual reports on generated or collected waste, based on which it prepares an annual analysis for the European Commission, which is published on the website of the Slovenian Environment Agency.

In accordance with the Slovenian Local Self-Government Act,8 the municipalities are responsible for the collection and landfilling of waste, as well as for certain compulsory local public services related thereto, for which they regulate conditions and monitor their implementation.9 The necessary facilities are considered as infrastructure of local interest.10

The municipalities must also ensure the separate collection of certain categories of waste11 and of hazardous waste, and manage the appropriate collection centers.12 By way of exception, the State provides compulsory public services of treatment and landfilling of radioactive waste, incineration of municipal waste, treatment of certain animal waste, and collection, recovery and disposal of certain other types of waste.13

In accordance with the Waste Framework Directive, the Slovenian Government adopted the Operational Plan on Municipal Waste Management in 2013, qualifying co-generation as the most suitable form of energy recovery of municipal waste.14 The current draft of the Waste Prevention Program that must be adopted by the Government under the Decree on waste foresees energy recovery in 2020 for: waste metal and plastic, construction waste, municipal waste, end-of-life vehicles and tires, waste wood and waste from medical and veterinary services.15 The new National Environmental Protection Program and the majority of sectoral operational waste programs16 remain to be adopted.

2.1.1.2 Specific sectoral regulations relating to waste management

2.1.1.2.1 Facilities and plants

The 2016 Decree on waste incineration and co-incineration plants,17 implementing the Directive on Industrial Emissions,18 governs the conditions for the granting of environmental permits for the operation of incineration plants, emission limit values, supervision measures and monitoring, rules on waste and residue treatment, and operating conditions. Environmental permits are issued by the Ministry of the Environment to operators: (i) operating an incineration plant or a co-incineration plant in accordance with the requirements of the decree, (ii) without an excessive environmental burden, (iii) with the largest possible recovery of the generated heat during the (co-)incineration process, (iv) with minimization of residue and recycling where appropriate, (v) with disposal of residue which cannot be prevented, reduced or recycled, (vi) applying required measures in the event of environmental accidents. In addition, the operator must install a reservoir for contaminated water and emissions measuring equipment, prepare reports on operation monitoring and waste treatment to the Ministry of the Environment.

Hazardous waste may only be recovered subject to an assessment of the properties relevant to the incineration by the holder of hazardous waste and prior verification of the documentation and the waste.

In accordance with the Decree on the recovering of non-hazardous waste into solid fuel,19 only specific types of waste20 may be recovered into solid fuel, and subject to an environmental permit and the maintenance of a record of solid fuel recovery.

The Decree on the treatment of biodegradable waste and the use of compost or digestate21 subjects the recovery of biodegradable waste, defined in the decree, to an environmental permit and the maintenance of a record on waste recovery.

The Decree on waste landfill22 defines a landfill as a facility for waste disposal by tipping waste above ground or underground, for hazardous waste, for non-hazardous waste or for inert waste. As a general rule, only treated waste may be landfilled, with the exception of irrecoverable inert waste and other waste the recovery of which does not decrease the adverse environmental impacts. Mixed municipal waste can only be landfilled following treatment in municipal waste management centers and if it has specific heating value, organic carbon and oxygen reception capacity characteristics, to the exclusion of specific types of waste.23 Landfills may not be located on the protected zones in proximity of residential, agricultural and certain specific areas.24 The operators of the municipal waste management centers and of the landfills are bound to obtain environmental permits. In addition, landfill operators must provide a financial guarantee for the performance of the measures set out in the environmental permit, perform operational monitoring and keep landfill records. Finally, underground landfills and landfills of waste mercury are subject to special conditions.

The Decree on waste treatment in mobile plants does not allow for certain recovery operations25 to be performed in mobile plants, i.e., mobile technological units in which waste may be recovered at the place of generation of waste or at the place of construction of materials generated from waste treatment. The conduct of waste treatment in a mobile plant is subject to an environmental permit and the maintenance of records on the waste treatment.

2.1.1.2.2 Waste streams

A second group of sectoral regulations governs individual waste streams, including, in particular: waste edible oil and fat, end-of-life tires, end-of-life vehicles, waste batteries and accumulators, packaging and waste packaging and waste oils.26 These waste streams are to be collected separately27 and the collectors thereof are to be registered in the relevant registers.28 In addition, the delivery of end-of-life vehicles, end-of-life tires, waste batteries and accumulators and waste packaging to the processors or collectors is free of charge,29 while the producers of vehicles, batteries, accumulators and tires must provide, at their own cost, the collection and/or recovery of the products manufactured by them.

2.1.1.2.3 Other specific sectoral regulations

A third group of sectoral regulations governs the prices and conditions for the provision of environmental public services.

The fourth group of sectoral regulations governs environmental taxes, the majority of which are imposed on the persons having placed certain types of goods burdening the environment (i.e. electricity and electronic equipment, packaging, tires, lubricating oils and liquids, vehicles) on the market of the Republic of Slovenia.

The last group of sectoral regulations concerns the cross-border shipment of waste, which is further described hereunder.30

2.1.1.3 Categorization of waste

Waste producers must determine into which specific category waste they produce falls, in accordance with the procedure and waste list set forth in the Commission Decision of May 3, 2000,31 which classifies waste into 20 categories according to the source generating the waste, each of which is further subcategorized.32

Specifically, hazardous waste is waste with one or more hazardous properties listed in Annex III to the Commission Regulation 1357/2014.33 Production residue is a substance or an object generated during a manufacturing process the main purpose of which is not the production of such substance or object.34 Production residue may be classified as a waste or as a byproduct, depending mostly on the further use of the residue.

2.1.1.4 Participants in the waste management process

A pre-condition for waste management is waste production: waste producers are either “original”, i.e. persons whose activities produce waste, or “other”, i.e. persons who carry out pre-processing, mixing or other operations resulting in a change in the nature or composition of waste. The Decree on waste further provides that original waste producers must ensure waste treatment, by treating the waste themselves, handing over the waste to collectors or by handing over the waste to providers of waste treatment. Original waste producers must submit to the Ministry of the Environment (upon request or annually, as applicable): (i) valid records in accordance with the Regulation on waste shipment,35 including, inter alia, information regarding the quantity of waste and recovery process, the sender of waste, the carrier and the acquirer, (ii) a waste management plan containing information on quantities of waste, prevention measures and plans for waste treatment,36 (iii) records on waste production and management and (iv) a report on generated waste and waste treatment.

The first phase of waste management is the collection of waste, i.e. the gathering of waste, including the preliminary sorting and preliminary storage of waste for the purposes of transport to a waste treatment facility, whereby a collector is a legal person or a sole proprietor whose activity is the collection of waste. Collectors are registered in the Environmental Register (Waste Collectors’ Register) and must obtain a registration certificate, subject to the following conditions: registration in the Slovenian Business Register for waste collection services, management of one or more collection centers in accordance with applicable regulations, collection of waste in accordance with applicable regulations, collection not prejudicial to human health and the environment, registration in (non-deletion from) the Waste Collectors’ Register in the last two years, and submission of a waste collection plan. Collectors must also keep records on waste collection and submit an annual report on waste collection to the Ministry of the Environment.

Following collection, waste is transported to waste treatment facilities: a transport operator must have a registration certificate, subject to the following conditions: registration in the Slovenian Business Register for waste collection or transportation services, appropriate assets and equipment for the services and a transport license. In addition, records of transport of hazardous waste must be kept.

Prior to collection, transport, treatment or disposal, waste may be placed in a storage for a maximum of 12 months from the production or takeover of waste; prior to recovery, waste may be placed in storage for a maximum of three years. Storage of waste must be carried out without endangering human health or the environment and applying measures to prevent or reduce adverse environmental impacts, and separating waste categories based on the characteristics of waste.

Waste recovery, i.e. an operation, the principal result of which is useful application of waste in the recovery plant or in other economic activities by replacing other materials, which would otherwise have been used to perform a particular function, or material prepared to perform that function.37 Waste recovery is conducted in accordance with the waste hierarchy and without endangering human health or the environment.38 Waste recovery providers must obtain an environmental permit, subject to the following conditions: registration in the Slovenian Business Register for waste treatment, management of a waste treatment facility, compliance with applicable environmental, technical and other requirements, without endangering human health or the environment, performing energy recovery in a waste treatment facility with a high level of energy efficiency, the provider is holding the environmental permit for the last two years.39 Following issuance of the environmental permit, the Ministry of the Environment ex officio registers the provider in the Environmental Register (Register on waste treatment providers).40 The provider must carry out measures for the prevention and the reduction of any negative environmental impact,41 keep records on waste treatment and submit an annual report to the Ministry of the Environment. The Environmental Protection Act mandates the performance of an environmental impact assessment and the issuance of an environmental consent prior to the commencement of any activity likely to have a significant impact on the environment.42 Waste recovery plants operating with hazardous waste, or with non-hazardous waste but with a capacity exceeding 100 tons per day, are subject to the mandatory environmental impact assessment; waste recovery plants operating with non-hazardous waste and with the capacity not exceeding 100 tons per day are subject to the mandatory preliminary procedure aimed at determining whether the assessment is necessary.43 Following the assessment, an application for the issuance of the environmental consent must be submitted to the Ministry of the Environment.44

The final phase in the waste management process is the disposal of waste, i.e. any operation which is not recovery, even where the operation has the reclamation of substances or energy as a secondary consequence.45 The disposal of waste may not harm the human health and the environment, is subject to an environmental permit, measures for the prevention and reduction of negative environmental impacts and the keeping of records on waste treatment.46

Traders with waste and providers of waste brokering services must obtain a registration certificate and must be registered in the Slovenian Business Register for waste trading activities or waste brokering services, respectively.47

2.1.2 Waste streams in waste to energy operations

In Slovenia, waste streams are primarily governed by the Decree on waste and sectoral regulations. The aforementioned decree follows the legislative framework put forward by the Waste Framework Directive. In accordance with the decree, waste shall no longer be regarded as waste after it has been processed into another product, material or energy.

2.1.2.2 National waste streams

Waste streams are defined as flows of specific waste, from its generation through to recovery, recycling or disposal.48 Statistics show that almost 4.7 million tons of various types of waste were produced in 2014 in the Republic of Slovenia. About half of million tons of municipal waste, which is 8% more than in 2013, were collected separately. A little more than three million tons of waste were recovered and approximately 280,000 tons of waste were landfilled. In comparison with 2013, waste recovery increased by 18%. The increase was detectable in the proportion of waste that has been used for fuel (14%) as well as the proportion of recycled (4%) and composed waste (6%).49

The recovery of mixed municipal waste collected from households must comply with the principle of self-sufficiency and proximity.50 Alone or in cooperation with other Member States of the EU (“Member States”),51 each Member State must take adequate measures to establish an integrated and adequate network of waste disposal and recovery installations using the best available techniques. The network must be designed in a way that it ensures a self-sufficient waste disposal and the recovery of mixed municipal waste throughout the EU. To achieve this objective the Member States must take into account geographical circumstances or the need for specialized installations for certain types of waste.

Waste destined for energy recovery must first be collected and sorted in accordance with the provisions of the Decree on waste and after that transported to the waste treatment facility. Only waste which is not suitable for re-use or recycling is sent to the landfill or to energy recovery.

Heat treatment of solid fuels from mixed municipal waste achieves energy efficiency classifying an installation for heat treatment as a recovery facility, if at least 65% of the available heat output of fuels is used to produce electricity and heat. Taking into account climatic conditions in Slovenia, as well as requirements for a long-term reliability on the use of solid fuels from municipal waste, the most appropriate form of energy recovery is a combined heat and power in plant, being part of the district heating system of a large town (possibly in Ljubljana, Maribor or Celje). Currently, there is only one small plant for energy recovery in the Republic of Slovenia, a heating plant in Celje fueled by the incineration of the remaining waste from the processing of municipal waste in their regional center for waste management. Waste incineration has been carried out by the companies Salonit Anhovo, d.d. and Lafarge Cement d.o.o.; however, it is currently suspended due to non-harmonized legislation and complications with licensing.52 According to the Confederation of the European Waste-to-Energy Plants, the Republic of Slovenia is the country with the lowest proportion of incinerated waste in the EU (in 2013, only 1% of waste was incinerated).53

2.1.2.3 Cross-border waste shipment

A large part of waste produced in the Republic of Slovenia is shipped to other countries especially hazardous waste, for which the Republic of Slovenia has no capacity for processing. In 2013, the Republic of Slovenia exported 192,000 tons of waste, the majority of which was exported to the Member States, particularly to Austria, Hungary, Germany and Poland. The majority of the exported waste is classified as other waste (including mixtures of materials) generated from mechanical treatment of waste (43%), 19% is classified as sludge from plants of waste water treatment, 7% as mixed waste, 4% as flue gasses and 4% as combustible waste.54

On the other hand, in 2013 the Republic of Slovenia imported 34,000 tons of waste. Thereof, used lead-acid batteries for processing at the company MPI-RECIKLAŽA d.o.o. represents 87% of all imported waste, combustible waste 7% and sludge containing hazardous substances from physical and chemical treatment represents 4% of all imported waste. Waste was mostly imported from Italy, Hungary, Croatia, Austria and Bosnia and Herzegovina.55

The precise amount of recovered or disposed waste cannot be determined as the data is collected based on the reports of various participants involved in the waste transfer chain. The liable persons are not under the obligation to report the quantities of waste and the type of recovery or disposal of waste, which they handed to the processor or disposer. In addition, the data on cross-border shipment of waste does not provide for the identification of the exact source and the destination of waste. Consequently, the Ministry of the Environment cannot obtain complete information for the analysis of cross-border shipments of waste and does not have an adequate basis for determining the risk in implementing the control of cross-border shipments of waste.56

With the Regulation on waste shipment the provisions of the Basel Convention57 and the OECD Decision58 have been implemented in the legal orders of the Member States. It lays down the procedures for the authorization and supervisory arrangements of cross-border waste transmission and practices with regard to illegal shipment of waste. In addition, the exportation of some types of waste intended for recovery is regulated by the Commission Regulation 1418/2007.59

When dealing with importation and exportation of waste, the Member States must comply with the principles of proximity, priority for recovery prior to disposal and self-disposal of waste at the EU level and at the national level, as provided for in the Waste Framework Directive. Given that the core and the primary objective of the waste shipment regulation is the protection of the environment, the Regulation on waste shipment governs the procedures to be applied by the Member States when issuing approvals for the import, export and transit of waste for disposal and recovery, in order to meet this objective.

There are five different regimes of shipments, namely: (i) shipment within the EU or without transit through third countries, (ii) shipment within the EU with transit via third countries, (iii) shipments exclusively within the Member States, (iv) exports from the EU to third countries and (v) imports into the EU from third countries. The following two procedures apply in case of waste shipment within the EU or shipment without transit through third countries: prior written notification procedure and general information procedure.

It should be noted that the export of waste destined for disposal from the EU to third countries is prohibited. However, the export of waste destined for disposal is allowed to the Member States of the European Free Trade Association, which are parties to the Basel Convention, unless expressly prohibited by such country. On the other hand, the import of waste destined for recovery from the EU to third countries is allowed only if the OECD Decision applies and if the applicable procedural rules are taken into account. In case that the OECD Decision does not apply in the third country, only import of certain types of waste is allowed.60 Moreover, the imports of waste destined for disposal into the EU are also prohibited (except in certain cases61), as well as the import of waste destined for recovery, except in case that the waste comes from countries where the import of waste destined for disposal is permitted (including the countries to which the OECD Decision applies).

In 2007, the Government of the Republic of Slovenia adopted the Decree on the implementation of the Regulation on waste shipment,62 mainly following the Regulation on waste shipment. However, in practice all conditions for the implementation of cross-border waste shipments have not been established yet. The Slovenian Environment Agency is the competent authority for the implementation of the Regulation on waste shipment. It issues the consent for waste shipment in the course of the procedure of a prior written notification or in case of exports of waste destined for recovery from the EU to the third countries, carries out the take-back obligation, communicates with the competent authorities in third countries, etc. It designates the informant who is responsible for informing and advising persons or companies that seek information. The Inspectorate for the Environment and Spatial Planning (“Environmental Inspectorate”) appoints a person permanently responsible for interaction with the Member States. When carrying out an inspection control of shipments of waste (especially during random checks on shipments), the police and customs authorities cooperate with the Environmental Inspectorate.

In 2013, the Court of Audit of the Republic of Slovenia (“Court of Audit”) reviewed the efficiency of operations of the Ministry of the Environment and the Customs Administration of the Republic of Slovenia (“Customs Administration”) when carrying out the cross-border waste shipment according to the Regulation on waste shipment and issued the Audit report on the Cross-Border Waste Shipment. The Court of Audit noted that the Slovenian Environment Agency does not receive all information necessary for the appropriate performance of its tasks with regard to waste shipment (e.g. to verify if the conditions for challenging the planned waste shipment are fulfilled), since certain information is available only to the Environmental Inspectorate, the Customs Administration and police. 63 Furthermore, the Republic of Slovenia has not adopted any operational program, which would fully consider the recovery and disposal of different types of waste.64 Consequently, there is no possibility to assess whether the Republic of Slovenia has sufficient capacity for waste recovery or disposal and if it complies with the principles of proximity, self-sufficiency and priority for waste recovery.

The Court of Audit also noted that existing records on the generation of waste and waste management do not contain all data necessary for the identification of waste streams generated in the Republic of Slovenia, nor waste streams imported into the Republic of Slovenia or exported from the Republic of Slovenia. If such information is not provided, the Regulation on waste shipment cannot be implemented correctly.65

In addition, instead of entering the data on waste shipment upon its receipt, the Slovenian Environment Agency enters the data ex post, which is when it prepares the report on the implementation of the Regulation on waste shipment.66 Consequently, the Slovenian Environment Agency cannot properly control whether the permitted volume of waste traffic is exceeded and whether the conditions for refusing the approval are met.67 The Ministry of the Environment does therefore not provide all the information as required under the Regulation on waste shipment and it does not ensure the exchange of the information on the cross-border shipment.68

According to the Court of Audit, the control of cross-border shipment of waste in the Republic of Slovenia is not sufficiently effective. The Ministry of the Environment did not prepare a comprehensive analysis of the risks of cross-border shipments of waste, which would identify risks more widely (depending on the risky type of waste, recovery and disposal operations, the country of origin of waste and the country of destination of waste). Such analysis would help to improve the effectiveness of the regular controls of waste shipments because the supervisory authorities would know which factors affect the risk of cross-border waste shipment and which shipments require further attention.69 It would also help the supervisory authorities to plan such regular controls more effective and to carry them out more frequently. Recently, the majority of breaches have been established during extraordinary controls or joint actions carried out on the basis of requests of the other authorities. 70

The Court of Audit noted that the competences and powers of the police should be more strictly regulated. Currently the police cannot carry out the comprehensive inspection on waste shipments, since it has no competences to verify whether a written consent of the country of destination has been obtained. Certain amendments to the Decree on the implementation of the Regulation on waste shipments have already been prepared, however, such amendments have not yet been adopted.71

Regarding the penalty rules, which shall be effective, proportionate and dissuasive,72 the Ministry of the Environment did not provide specific rules on fines and did not perform an analysis identifying the factors that would influence the amount of fines.73

Despite the fact that the Decree on waste shipment merely reproduces the provisions of the Regulation on waste shipment, the implementation of the Regulation in the Republic of Slovenia is not entirely correct. Therefore, in the future we can expect certain changes in this area.

2.1.2.4 Waste eligible for energy production

Different characteristics apply to different waste streams, depending on materials or products comprising waste.74 Official statistics of the Slovenian Environment Agency provide data for the waste streams eligible for energy production presented below.

2.1.2.4.1 Municipal waste

The bulk of this waste stream is from households, although waste from similar sources such as commerce, offices, public institutions and selected municipal services is also included. A joint OECD/Eurostat definition provides that municipal waste includes the following types of materials: paper, paperboard and paper products, plastics, glass, metals, food, garden waste, and textiles.

According to the Slovenian Environment Agency, Slovenia generates annually around 430 kg of municipal waste per capita. The economic growth in Slovenia brings about an increased use of natural resources and, consequently, larger quantities of waste are generated. This applies especially to households due to the developed consumption and higher purchasing power of the general population.

With regard to municipal waste management, disposal still prevails. Landfilling is performed within municipal public services and is permitted at non-hazardous waste landfills.75 On average, 42.3% of municipal waste is landfilled, whereas only 1.4% is incinerated. The recycling percentage has been growing in recent years and has reached 39.5% annually. Other non-specified operations of recovery and disposal amount to 16.9%.76

With changes of the legislation, political mechanisms and the establishment of municipal waste management centers, improved separate collection and treatment of mixed municipal waste before disposal, the percentage of recycled waste is expected to increase even further. Recent results show that Slovenia is on track to fulfill the 50% recycling target of the Waste Framework Directive by 2020.77

Treatment methods vary between different categories of waste. Paper and cardboard account for the highest proportion of recycled municipal waste (38%), followed by food waste (25%), plastics (10%), glass (9%), inerts (6%), metals (5%), bulky waste (3%) and waste electrical and electronic equipment (2%). Categories with low recycling rates, including inter alia wood, textiles, garden waste, batteries and other hazardous waste, account for the rest.

The municipal waste of higher calorific value can be used as a substrate in waste to energy plants to generate electricity or heat by incineration and advanced thermal technologies.78 Due to its heterogeneous origin, it is also suitable for composting.

2.1.2.4.2 Waste edible oils

Waste edible oils and fats are regarded as a subcategory of the municipal waste. The management of waste oils is governed by the Decree on waste edible oils and fats. The decree inter alia stipulates that waste edible oils may not be (i) mixed with other types of waste, (ii) released into the municipal sewer system, (iii) released into small municipal treatment plants, (iv) released into septic tanks or directly in water, (v) nor can they be discharged onto land.

Once oil has been used, it can be collected, recycled, and reused. Slovenia exports the majority of waste oils to other Member States, where they are made into biodiesel. To date, there is no industrial biodiesel production for waste edible oils in Slovenia.79

2.1.2.4.3 Packaging

Slovenia generates more than 200,000 tons of packaging waste annually. Packaging waste consists mostly of paper and cardboard (39%), followed by plastics (21%) and glass (16%). On average, 69% of packaging waste is recycled. The highest recycling rate applies to glass (86%), plastics (82%) and paper (79%). In addition, Slovenia exports more than 104,000 tons of packaging waste per year.80

Packaging waste with a high amount of organic materials, such as paper, wood and cardboard, may be utilized as a substrate for incineration and other thermal treatment technologies. Correspondingly, life cycle studies have shown that especially for high energy content or non-homogenous fractions such as mixed plastic packaging or wood packaging, incineration can have larger overall environmental benefits than recycling.81 

2.1.2.4.4 End-of-life tires

The Decree on waste tires puts forward the basic principles of tire disposal in Slovenia. According to the Slovenian Environment Agency, approximately 8.4 kg of waste tires are collected annually per capita. End-of-life tires are either recycled or incinerated, whereas a rather small amount is returned for reuse or regeneration. On average, 47% of returned tires are recycled and approximately 50% incinerated.82

Tires removed from vehicles can be recycled in various ways. Most commonly, they are used as flooring and roofing materials, or as foundations for roads and railways.83

According to the World Business Council for Sustainable Development’s Tire Industry Project, a typical tire contains 30 types of synthetic rubber, 8 types of natural rubber, 8 types of carbon black, steel cord, polyester, nylon, steel bead wire, silica and 40 different chemicals, waxes and oils. Due to its high calorific value, tires are widely used in incineration, pyrolysis and gasification. Tires produce the same energy as petroleum and approximately 25% more energy than coal. Thermal treatment technologies are lower on the waste hierarchy than recycling, but preferred to landfilling.84

2.1.2.4.5 End-of-life vehicles

The Decree on end-of-life vehicles governs the disposal of vehicles. Approximately 7,000 vehicles are annually decommissioned in Slovenia. For most end-of-life vehicles, the target rates of 85% of reuse and recycling and 95% of reuse and recovery have already been achieved.85

End-of-life vehicles are generally treated in a series of steps. Firstly, fluids and hazardous components are removed, in the next step, components suitable for a re-use are detached and finally, various materials for recycling or recovery (e.g. foams, steel, iron, non-ferrous metals, plastics and glass) are separated.86

Similarly to the rest of the EU, the collection and treatment of end-of-life vehicles by illegal operators and its illegal shipment remains a major concern in Slovenia as well. Furthermore, there is room for improvement in vehicle disposal with respect to the removal of hazardous materials, as well as recycling and recovery of materials, in particular glass and plastics.

2.1.2.4.6 Waste batteries and accumulators

Waste batteries and accumulators do not primarily belong to mixed municipal waste. They contain heavy metals, which require separate collection and appropriate recovery. Since there are many types of rechargeable and non-rechargeable batteries and accumulators with various component metals, batteries first need to be sorted by type, and then recycled by a specific process. If they are not collected separately, batteries and accumulators enter the municipal waste stream and are either landfilled or incinerated.87

More than 700 tons of portable batteries and accumulators are sold annually in Slovenia, whereas more than 200 tons are collected. Furthermore, approximately 5,000 tons of waste lead-acid batteries and accumulators are recycled per year. These comprise of waste lead-acid industrial and automotive batteries and accumulators.88

2.1.2.4.7 Waste oils

Hazardous waste oils may not be mixed with other hazardous and non-hazardous waste under the Decree on the disposal of waste oils. Waste oil stream categories generally include: 

• hydraulic waste oils; 
• motor waste oils, machining and other lubricating waste oils; 
• waste oils or liquids for thermal insulation or heat transfer; 
• waste bilge oils; and
• other mineral or synthetic waste oils. 

Annual quantities of oils placed on the Slovenian market exceed 20,000 tons, of which approximately 30% are recollected as waste oils. Further waste oil management follows the trend towards recovery and co-incineration of waste oils, highlighting the use of this waste stream as an important source of energy production. Similarly to the rest of the EU, the illegal disposal of waste oil remains a major concern. The Slovenian Environment Agency estimates that 25% of waste oil generated is illegally burned or dumped in the sewage or elsewhere in the environment.89 

2.1.2.5 Incineration and advanced thermal treatment 

Comparatively, incineration is the most common waste to energy technology. In recent years, however, new and more efficient technologies have been implemented. Modern technologies, commonly referred to as the advanced thermal treatment, include pyrolysis and gasification.

2.1.2.5.1 Incineration and co-incineration

Plant design and configuration of the individual incinerators differ considerably between different technology providers. However, all incineration plants are based on the same principle. The heat from the combustion process is used to generate superheated steam in boilers. The superheated steam is in turn used to drive turbogenerators to produce electricity. This process is generally conducted through five distinct phases including: (1) waste reception and handling, (2) combustion, (3) energy recovery, (4) emissions clean-up, and (5) bottom ash handling.90

Following the reception of waste, it is discharged into large refuse bunkers for mixing. The mixing is required to ensure that the blended waste is stable and the calorific value of the waste feed as consistent as possible. The process from the waste delivery through combustion is nowadays fully automatized. Combustion takes place at temperatures from 850 to 1100° C, which are required to ensure the complete burning of waste and to prevent the formation of dioxins and carbon monoxide.

The standard technique for the recovery of energy from waste incineration is to utilize the combustion heat through a boiler to generate steam. At present, the waste energy to steam efficiency ratio amounts to 80%. Steam can be used for the generation of power by the use of steam turbine and for heating. An energy recovery plant producing both heat and power is commonly referred to as a combined heat and power plant and presents the most efficient option for utilizing recovered energy from waste through a steam boiler. The main residual material is the so-called bottom ash. Bottom ash may be recycled and used as a secondary aggregate in a variety of construction applications if it complies with statutory requirements, as well as a valuable fertilizer, especially in forestry.

In order to comply with air emission requirements, the combustion process must be correctly controlled and flue gases must be cleaned prior to their final release. This is performed through a combination of various pollution control systems. After electrostatic precipitators initially remove approximately 99% of dust and ash particles, acid gas scrubbing is performed. This includes the injection of ammonia, application of lime and sodium bicarbonate mixtures in order to neutralize and control NOx, SO2 and HCl emissions, and activation of carbon to capture heavy metals. Finally, a filter system ensures the removal of fly ash and other solids. Fly ash generally amounts to approximately 1-3% of the overall input waste and is considered to be hazardous. As such, it must be disposed of in a specially designed facility.91

A co-incineration plant constitutes a particular form of incineration plant.92 Apart from dedicated waste incinerators, where exclusively waste is burnt, a co-incineration plant uses waste as a supplementary or additional fuel. Correspondingly, the main purpose of coincineration plant is not the processing of waste but production of energy.93

2.1.2.5.2 Pyrolysis

Pyrolysis has recently become an advanced alternative to incineration. In contrast to combustion, pyrolysis is a thermal degradation in the absence of oxygen. This process requires an external heat source to maintain the necessary temperature, although temperatures applied (from 300 to 850° C) are lower than in incineration. Pyrolysis has been promoted for biomass applications and in the treatment of scrap tires. Carbon-based waste such as paper, petroleum-based wastes like plastics and organic materials such as food scraps are also suitable. However, raw municipal waste is usually not appropriate and normally requires prior mechanical preparation. In particular, separation of glass, metals and inerts must be performed prior to the processing of the remaining waste.94

Three products are usually produced in the pyrolysis process: synthetic gas, pyrolysis oil and char. Once cooled down, pyrolysis oil can be transported, stored and used as a dense fuel source for applications such as heating and steam production. Its caloric value is close to diesel fuel and, therefore, presents a substitute for conventional fossil fuels. Pyrolysis oil is defined as an energy product and alternative fuel for a combined heat and power plant under the Renewable Energy Directive.95 However, the Slovenian environmental framework does currently not allow for synthetic oils to be eligible as a fuel. Nevertheless, the long term goal of the pyrolysis industry is to focus on the bio-refinery concept, under which pyrolysis oil can be used as one of the raw materials for automotive fuels.96

Bio charcoal is the output produced from biogenic input materials as biomass, whilst black coal produced from fossil based fuels, such as tires and plastics is used for industrial purposes.97 Bio charcoal from pyrolysis can be used in the farming industry, as a fertilizer and soil amender. Charcoal is highly absorbent and therefore increases the soil’s ability to retain water, nutrients and agricultural chemicals. In addition, charcoal prevents water contamination and soil erosion. Gas produced during the pyrolysis is generally referred to as the syngas. Syngas generally consists of CO2, CO, H2 and other light hydrocarbons. Syngas can be converted to biofuels such as methanol, ethanol and hydrogen using either a metal or a microbial catalyst. In addition, syngas can be directly combusted in a secondary chamber to generate electricity.98

2.1.2.5.3 Gasification

Gasification, as a form of advanced thermal treatment, combines elements of both incineration and pyrolysis. Oxygen is added during the gasification, but the amounts are not sufficient to allow the output gas to be entirely burnt. Subsequently, full combustion does not occur.99 This allows the output gas to be additionally processed at a later stage. The temperatures applied are typically above 650° C. The process is largely exothermic but some heat may be required to initialize and sustain the gasification process. Coal and petroleum coke are used as input materials for many large gasification plants worldwide. Additionally, a variety of biomass and waste-derived materials can be gasified, including wood pellets and chips, waste wood, plastics and aluminium, municipal solid waste, agricultural and industrial wastes.

Similarly as with pyrolysis, syngas is the main gasification product and may be made into methanol and ethanol. Nonetheless, most modern gasification undertakings use a secondary combustion chamber to burn the syngas and recover energy via a steam circuit.100

2.1.2.5.4 Biogas plants

Biogas plants are becoming an increasingly popular form of energy production. They are especially appropriate for countries and regions with strong agricultural presence, where they can be integrated into existing agricultural undertakings to complement the primary farming activity or as self-standing industrial plants. Biomethane used to be the main product of the biogas technology; however, conversion to electricity has become the standard technology in all modern plants.

Organic input materials such as food waste, manure, sewage or sludge are used as the primary substrate for biogas production. Moreover, renewable resources such as corn, beets and agricultural by-products are also being used. All of these materials are placed inside a special container, the fermenter, which decomposes the substrate of bacteria and other microorganisms in the absence of oxygen and light. The temperatures applied are usually between 38 and 42°C. Decomposition provides three distinct products: biogas, heat, and digestate.

Depending on the technology provider and plant design, the produced biogas can be collected by using the gas-tight cover directly above the substrate or in an external gas storage tank. Most often, biogas is transported to an integrated heat and power station, where it is burnt in a combustion engine to generate electricity and heat. Generated electric power is fed directly into the power grid connected to the electrical transmission system. On the other hand, generated heat can be used for the heating of on-site objects or even for industrial heating.101

Alternatively, biogas can be dried and purified in a gas treatment unit. Such treatment raises the methane content of the biogas transforming it into biomethane. Subsequently, biomethane can be sold directly via the gas transmission network.

Finally, the digestate residues can be used as a high-quality fertilizer. Following the substrate’s fermentation, the residues are separated, dried and collected. Due to its low viscosity, digestate can enter the farming grounds faster. Moreover, the digestate often has a higher fertilizer value and is less intense to the olfactory senses.102

In Slovenia, the number of biogas plants has risen significantly in the recent years. Small farmers, as well as industry leaders are creating new biogas plants. Generally, those plants integrated into existing farms, have proved to be a success. Such biogas plants have sufficient and continuous amount of substrate resources. However, biogas plants depending on external substrate providers, have struggled to become economically viable. Price fluctuations of the organic input materials significantly influence financial results of such plants. In recent years, many of biogas farmers, especially in the northeastern farm-rich region of the country, have entered into insolvency proceedings or have been transferred to the Slovenian Bank Assets Management Company. Potential investors now have the opportunity to buy existing plants at an affordable price and restructure them into successful undertakings with the legal counsel of an experienced M&A law firm.

2.2 Installation and operation of energy plants

The installation and the operation of energy plants are complex and multistage processes where different permits need to be obtained. Consequently, such undertaking is governed by several acts of different fields of law. Every person or entity seeking to build and operate an energy plant, needs to abide by the Slovene regulations, governing the construction and environmental impacts of energy plants, as well as regulations, governing energy production. The main regulatory framework for the process of installation and operation of energy plants are the Construction Act,103 the Environmental Protection Act and the Energy Act.104

2.2.1 Energy plant implementation

During the process of the energy plant installation, each person or entity, seeking to build and operate an energy plant needs to obtain various permits, the main ones being:

• the environmental permit, issued by the Ministry of the Environment; 
• the energy permit, issued by the Ministry of Infrastructure; 
• the building permit issued by the local administration unit or by the Ministry of the Environment;105 and 
• the operating permit issued by the authority that has issued the building permit. 

2.2.2 The environmental permit 

The environmental permit is governed by the Environmental Protection Act. The process and conditions for issuing the environmental permit differ depending on the risk of the envisaged activity for the environment. While the operation of the facilities with a potentially significant impact on the environment requires merely an environmental protection approval issued by the Ministry of the Environment, incineration and biogas plants, which are considered as activities of large-scale pollution, require an environmental protection permit. In addition, their construction needs to be notified to the Environmental Inspectorate. ​

In order to obtain the environmental permit, the operator of the installation or the plant must introduce various measures to prevent and/or minimize the facility’s impact on the environment and provide proof thereof, as well as a study, determining the environmental impact area of the plant, in its application for the environmental protection permit. If the activity uses, produces or discharges hazardous substances, which may cause pollution of the soil or groundwater, additional conditions apply and the application has to contain the initial environmental report with special information in accordance with the Decree on the environmental report.106 The operator is obliged to obtain a special environmental permit before the commissioning of such plant. The operator has to notify the Environmental Inspectorate on the construction requiring a building permit. If the operation of the plant, or its substantial change, require construction works, the operator has to obtain the environmental protection permit prior to the commencement of such works and in other cases prior to the commissioning of the plant.

The Ministry of the Environment decides on the environmental protection permit for the installation of large-scale pollution within six months upon receipt of the complete application. Additional 30 days, not included in the deadline, apply for the public participation.

The Ministry of the Environment issues the environmental protection permit for an incineration or co-incineration plant, if:

• the plant is planned, equipped and operates in accordance with the Decree on waste incineration and co-incineration plants; 
• the operation of the plant does not cause disproportional degradation of the environment; 
• the heat resulting from the incineration is used for further activities; 
• the quantity and harmfulness of the residue waste are as minimal as possible; 
• the residue waste, which cannot be prevented, reduced or recycled is disposed of in accordance with the waste-management regulations; 
• the operator assures the appropriate measures limiting the harmful consequences in the event of environmental accidents. 

The environmental protection permit determines permissible values of emissions into water, air or soil, environmental protection measures and other conditions for the operation of an individual installation, as well as monitoring and reporting obligations of the operator. In the event that the operator was required to produce the initial environmental report, the Ministry of the Environment also confirms its receipt and determines the measures that have to be implemented by the operator in case of closing of the plant. 

If the operator is testing or implementing an innovative technology, the Ministry of the Environment may allow him the delay in achieving the environmental requirements of the environmental permit with respect to the emissions for a maximum term of nine months. In case of any planned changes in the operation of the installation, the operator has to notify the Ministry of the Environment, which decides whether the planned changes are substantial and, therefore, subject to the environment impact assessment, environmental approval and/or an update of the environmental protection permit. 

The Ministry of the Environment may also change the environment protection permit exofficio in the events such as the implementation of new regulations, significant improvements of technology, etc. If not updated or changed sooner for other reasons, The Ministry of the Environment updates the environmental protection permit every 10 years. The environmental permit remains valid and effective for an indefinite term until withdrawn by the Ministry of the Environment or until either the installation or the operator itself has been terminated. 

In the event that the facility falls under the scope of the Decree on activities and greenhouse gases,107 an additional permit of the Ministry of the Environment for the emissions of greenhouse gasses is required. Moreover, the operators of such facilities are bound to pay the environmental tax on a monthly basis depending on the quantity of the landfilled waste. Even though the Decree on the environmental tax on carbon dioxide emissions108 is not applicable to the facilities producing electric energy or heat, the operators of the incineration or biogas producing facilities are nevertheless obliged to pay the environmental tax, if their end-waste is landfilled.109 

2.2.3 The energy permit 

In cases where the investor plans to construct or reconstruct a facility producing electric energy with a nominal electrical power capacity exceeding 1 MW, which shall be connected to the public network, the provisions of the Energy Act require him to obtain the energy ​permit prior to any construction activity. No energy permit is required for the production of the biogas plants, except if the gas is used for production of electricity. The energy permit is issued by the Ministry of Infrastructure. A final energy permit is a precondition for the successful application for the building permit.

The requirements for obtaining an energy permit are determined in detail by the Rules on issuing energy permits.110 The investor must implement measures for the safe operation of power grids and energy efficiency. In addition, the electricity-producing facility must be aligned with the National Energy Program,111 the National renewable energy sources action plan for 2010-2020, the National energy efficiency action plan for 2014-2020 and must contribute to the overall decrease in emissions in compliance with the Operating program of measures to reduce the greenhouse gas emissions by 2020.112 The applicant must also be technically, economically and financially able to carry out the construction of the plant. If the application meets all the requirements, the Ministry of Infrastructure issues the energy permit.

2.2.4 The building permit

As the installation of energy plants includes their construction, the operators must also abide by the provisions of the Construction Act and obtain a final building permit for the construction of new buildings, reconstructions, as well as any building removals.

With the exception of the connection point to the energy infrastructure or thermal distribution system, which classify as simple construction categories, energy production facilities are categorized as challenging constructions and less challenging constructions under the Decree on classification of constructions.113 Challenging constructions relevant for the scope of this paper are:

• industrial buildings with an area of at least 4.000 m2 or with the height of 25 m or more; 
• industrial construction buildings, with the exemption of electric power plants with their nominal power less than 5 MW; 
• landfills of hazardous waste, nuclear waste, and other landfills with capacity of 500 tons per day or more; 
• other industrial construction buildings an area of at least 5.000 m2 or their height exceeding 25 m; 
• constructions not falling within the scope of any of the categories outlined above are classified as less challenging constructions. 

In addition, constructions are classified by the Decree on the classification and designation of facilities.114 Constructions of national importance include power plants with their nominal power exceeding 10 MW, municipal waste incineration plants and landfills, dedicated to nuclear waste. 

The classification of facilities is relevant in order to determine the authority, competent to issue the building permit. Building permits for the construction of nationally important constructions fall under the competence of the Ministry of the Environment, whereas building permits for other constructions fall under the competence of individual administrative units (both bodies in this and the following section referred to as “the authority”). The procedure for obtaining the building permit begins with the application of the investor, which contains basic information regarding the land plot, the construction plan and evidence of the investor’s entitlement to build. If an investor constructs a facility requiring the energy permit, it shall obtain the energy permit before submitting the application for the construction permit. 

The authority issues the building permit, if: 

• ​the planned construction is in accordance with the spatial plans,
• the construction plan has been created by the authorized person and has all the elements required by the respective regulations,115
  
• all the approvals required by the relevant regulations have been obtained by the investor, (that includes the energy permit, the environmental permit and the approval for connection to the electricity or head distribution system),116
  
• the investor is entitled to build on the designated land plot,
  
• all fees and taxes have been paid,
  
• it can be verified from the construction plan that the construction will be connected to the essential utilities.117
  

Once the investor obtains the building permit it has to start with the approved construction within three years (in case of a challenging construction) or within two years (in case of a less challenging construction), otherwise the building permit expires. A potential amendment of special planning acts, applicable to the respective land plots during such the term, does not affect the validity of the building permit. 

2.2.5 The operating permit 

Once the construction works on the energy producing facility have been completed, the investor has to submit the application for the operating permit within 8 days upon the construction completion with the same authority that has issued the building permit for the respective construction. The application has to contain information on the works that have been carried out, on the building permit, the surveying plan of the newly constructed building, documents and information proving the reliability of the construction (provided by the contractor constructing the building and cosigned by the construction manager and construction supervisor) and other documents, if so required by special regulations. 

After the authority confirms the conditions have been met it appoints a special commission for the technical inspection of the facility. If any deficiencies are discovered by the technical inspection, the authority sets the time limit for the investor to eliminate them. If the results of the technical inspection are satisfactory and the facility meets all other regulatory conditions, the authority issues the operating permit. 

In addition, the authority may decide to allow the trial operations and measurements for the period set forth by the trial measurement plan. In case of permitted trial operation, the investor has to notify the competent inspectors and the competent authority at least 15 days before the intended start of the operation, which has to be carried out under the professional supervision. Before the end of the trial operation of the facility, the investor must provide the authority with the reports showing that all emissions and other regulatory requirements are within the prescribed limits. The authority sends the report on the trial operating measure to the body supervising the trial operation and requests its opinion whether it is in accordance with the environmental regulations. The Inspectorate of Infrastructure issues the operating license after it has carried out the technical inspection of the installations. 

2.2.6 Connection to the heat and electricity distribution systems 

Heat or electricity producing facilities will typically require the connection to the distribution systems in order to be able to supply and market their products. The distributions systems are managed by the system operators.

In order to access the electricity distribution systems the electricity producer has to obtain the connection approval from and conclude the electricity supply agreement with the system operator. Detailed conditions for the connection approval are laid down in the network code adopted by the respective system operator. In the connection approval, the system operator determines the scope of the system user’s (i.e. the electricity or gas producer) right to use the distribution system by identifying their highest connected load or other operational constraints. The electricity producer has to provide the system operator with the detailed information on the energy grid and persons authorized to operate the installations, as well as a preliminary or a conceptual design in accordance with the Construction Act in case of a new construction. The final connection approval remains valid for two years. Within this term, the system user is bound to submit the final building permit presenting the basis for the connection approval extension (in case of newly build facilities) or fulfil the requirements set forth in the connection approval and implement the connection (in case of already existing facilities). In addition to the connection approval, the system operator and the user shall conclude a system use contract within ten working days upon the submission of the complete application, wherein determining the user’s obligation to pay the network charges and the system operator’s obligation to enable the user to deliver electricity into the system within the established operational constraints.

The connection to the distribution system may be carried out only by a person authorized by the distribution system operator. The power plants, installations and lines of the system user have to meet the prescribed technical requirements, ensuring their smooth operation and the safety of people and property, and are subject to the supervision of the Energy Inspector. If the aforementioned installations and networks fail to meet the prescribed technical requirements, the system operator may temporarily refuse to connect or interrupt the power supply to such installations or networks. In addition, if the system user fails to comply with its obligations under the relevant regulations or the supply contract (e.g. disruption of the electricity supply, preventing the systems operator’s authorized person access to any part of the facility, failure to pay the network charge), the system operator may disconnect individual delivery points of the system user. The system operator may also disconnect the user from the distribution system without any prior notice if by operation of its energy facilities, installations or lines, the system user endangers the life, health or property of people, or in case of an electricity shortage, as well as if the system user fails to comply with special safeguard measures restricting the consumption of electricity from the system referred to in cases of emergencies. The Energy Act also allows temporarily disconnections due to ordinary or extraordinary maintenance, inspection or repair, checks or check measures and network expansion.

The energy supplier may also connect its incineration plant to the heat distribution system. Depending on the type of the service, the conditions for the connection to the heat distribution system are set forth either by the system operation instructions for the heat distribution network for the respective geographical area adopted by the system distributor performing a service of a general economic interest118 and approved by the Energy Agency, or by the terms and conditions adopted by the distributor that distributes heat as a commercial service. In addition, the Energy Act stipulates that heat producers have to, for the purpose of resale, meter the quantity of the heat supplied to the network. The heat producer, using a common boiler house, shall meter the quantity of the heat produced on the threshold of the boiler house, regardless of the type of installation for heat production. In order to connect to the distribution system the heat producer has to enter into a contract with the system distributor determining the terms of heat supply and other obligations of the parties. 

2.2.7 Operation and maintenance of power plants 

Detailed technical requirements for the incineration plant and biogas plant operation and maintenance are set forth in the Decree on waste incineration and co-incineration plants, the Decree on treatment of biodegradable waste and the Decree on the maintenance works for the public benefit in the energy sector.119 Pursuant to the provisions of these regulations, the operator of the facility has to: 

• appoint the person responsible to carry out the operation of the incineration plant and its deputy;
• ensure that all workers have sufficient professional knowledge to operate the incineration power plant or gas facilities;
• keep the instructions for the operation of the incineration or biogas plant and the records of the operation of the incineration plant or biogas plant; and 
• ensure that any electric installations or gas related facilities meet the technical requirements and are properly maintained. 

Detailed provisions on the maintenance of the electric and heat installations are set forth in several executive regulations.120 Generally, the operator of electric or heat related facilities have to ensure that regular maintenance is performed and keep the required documentation with regard to the facilities and maintenance works.

Municipal waste incineration activities shall be carried out in the form of a state public service under the Environmental Protection Act. Under the Decree on public utility service in the field of urban waste incineration,121 municipal waste incineration services may be carried out only by a public company established by the Government of the Republic of Slovenia or municipalities. 

The Environmental Inspectorate supervises the operation of incineration plants and biogas plants, the implementation of the technical requirements set out by the Energy Act, its implementing regulations and the requirements set forth by other general acts in the field of construction, maintenance, operation and use of energy facilities, installations and networks. The Energy Inspectorate also supervises the expertise and qualifications of workers operating the energy installations in order to ensure the safety and security of the operation and the efficient use of energy. 

The Energy inspectors may order the remedy of irregularities and/or deficiencies and stop further use of facilities, installations, plants and lines, as well as suspend the power supply. In addition, they may prohibit further use of the energy systems, facilities, plants, lines and networks and/or further performance of the work in contravention of technical or other rules that may pose a threat to the life and health of people or cause substantial material damage. Energy inspectors may prohibit a worker from continuing to operate an energy installation if he or she is not qualified in accordance with the rules governing their professional training. 

The Environmental Protection Act provides additional obligations for all operators of largescale polluting facilities and other potential polluters. In the event of an imminent threat of environmental damage, the polluter must take all the necessary steps to prevent such damage and immediately inform the Ministry of the Environment of all relevant facts, in particular about the actual state of the environment and the measures already adopted. If the environmental damage has occurred, the polluter shall immediately inform the Ministry of the Environment thereof, take all the necessary measures to limit the environmental damage and send all the information about the environmental damage and proposed remedial actions to the Ministry of the Environment. The measures include all practicable measures that could instantly monitor, manage, remove or otherwise deal with pollutants or any other damage factors in order to limit or prevent further environmental damage and adverse effects on human health. If the pollution occurs, the polluter is responsible for preventing imminent threat of damage to the environment in connection with his activities and for preventing the environmental damage regardless of his fault.

2.2.8 Difficulties in Slovenia 

Initially, it stems from the foregoing that a number of permits is required to install a waste to energy plant. This alone may result in a lengthy process for the realization of such investment, which may take years and a number of hurdles to overcome. ​

Secondly, in order to obtain the building permit, the construction has to be projected in the spatial plan adopted by the local municipality. However, as the municipal waste incineration activities may be performed only as a state public service and the facilities for thermal treatment of municipal waste are categorized as infrastructure of national importance, only the Government of the Republic of Slovenia and the Ministry of the Environment are competent to adopt the decision to include an incineration power plant into the national spatial plan. The construction of the incineration facility is projected in Ljubljana’s spatial plan, yet to date no such construction is foreseen in the national spatial plan, although the document identifying the investment project has already been drafted. Such unresponsiveness of the State has encouraged Slovenia’s capital city to enter into the Zero Waste Europe group and solve its municipal waste management problem with recycling (as a higher waste management operation) and recovery in its new Regional waste management center,122 which started to operate in 2015. The situation in Maribor, Slovenia’s second largest city, where currently more than 40% of all municipal waste is being landfilled is similar, as the document identifying the investment project with respect to the municipal waste incineration facility in Maribor has already been drafted,123 yet the national spatial plan required for such construction has not yet been created. The projected construction of the waste sorting facility in 2016 has, however, not yet commenced.

From the legal point of view, the legislator should consider revising the respective Slovenian legislation by transferring authorizations in the decision making process to the Ministry of Economic Development and Technology (“Ministry of Economy”), notably due to the fact that the outcome from waste to energy operations (to produce more environmentally clean energy) is of the ministry’s interest as well. This position is supported by the professional public, which strived for the involvement and support of the Ministry of Economy in the past years.124

Thirdly, in the process of obtaining the building and the environmental permit, the influence of the interested and general public with respect to the envisaged construction of the energy plant should not be neglected. In the process of obtaining the building permit everyone whose legal rights can be affected by the envisaged construction of the energy plant, may participate in the process of issuing the building permit. People living in the surroundings of the envisaged energy plant usually try to stall the process with the use of different legal remedies. The possibility of the general public to submit observations and to express opinions in the process of issuing the environmental permit has to be observed as well. Generally, the public is skeptical towards new technologies, which have not yet been implemented in Slovenia and have not been proved to be environmentally clean. It seems that the rise of numerous biogas plants in Slovenia has changed the perspective of civil initiatives with respect to such undertakings in the recent years.125 However, the opinion of civil initiatives seems to remain strictly against the construction of the incineration plants.126 A negative public opinion will typically influence the government’s decision whether to invest in such technologies, but it may also present a tipping point for the private investors to choose to invest in other countries. One example was the envisaged waste tires pyrolysis plant in the municipality of Semič. Although the local municipality adopted the decision to transfer the plots for the construction of the plant,127 a very negative opinion of the local residents resulted in the investor’s decision rather to invest in a similar project in Austria.128

The current capabilities of Slovenian municipal waste incineration are about 25.000 t per year.129 It is however estimated, that approximately 200.000 t of municipal waste suited for the incineration is produced every year.130 To meet the needs, Slovenia would require two envisaged incineration plants in Ljubljana and Maribor. It is important to note that the strict implementation of zero waste programs in both cities may result in shortage of waste suitable for incinerations. In the absence of mass fuel, the incineration facilities could be forced to import waste making this undertaking a predominantly commercial activity. Therefore, the Slovenian legislator should consider loosening the stringent definition of the municipal waste incineration as a state public service if it intends to open the space for investors.

2.3 Energy and use of renewable sources

The policies and measures to promote renewable energy sources and energy efficiency in Slovenia include regulatory measures, financial incentives and other support programs, taxation allowances, as well as awareness-raising measures and energy advisory. Specific measures and mechanisms to improve energy efficiency and to promote the use of renewable sources are further specified in action plans (e.g.: the National renewable energy sources action plan for 2010-2020 and the National energy efficiency action plan for 2014-2020131).

This section focuses on the relevant statutory provisions mainly regarding financial support for the use of renewable energy sources in waste to energy operations and taxation allowances thereto, while merely mentions the energy efficiency regime to the extent relating to waste to energy operations. As a key factor, the definition of renewable energy sources under Slovene legislation has to be observed.

2.3.1 Renewable energy sources

A high percentage of the renewable energy sources (“RES”) usage is significant to tackle climate change and to increase the reliability and competitiveness of energy supply for a future low-carbon society. In order to achieve a high share of RES it is necessary to reduce the energy consumption on a long-term basis or at least to decelerate the growth of energy consumption while simultaneously increase the energy production from RES. Slovenia has already exceeded the mandatory 20% national overall target for the use of energy from RES determined in the Renewable Energy Directive setting an even eager target of at least 25% of energy from RES in the gross final consumption of energy by 2020.132

There is much debate worldwide on how to define and distinguish renewable energy from non-renewable.133 The Slovenian Energy Act has implemented the definition determined in the Renewable Energy Directive: “Renewable energy sources are renewable non-fossil energy sources, namely wind, solar, aerothermal, hydrothermal and geothermal energy, ocean energy, hydropower, biomass, landfill gas, sewage treatment plant gas and biogases.” As the definition of RES is exclusive, the listed sources present merely elements eligible for financial supports as described hereunder.

In the traditional sense, RES are those that nature can regrow, such as wood, crops, or other plants (biomass) available through the Earth’s unique physical set-up, such as wind, water, and solar radiation. However, the term biomass often includes one manmade good that is the byproduct of industrialization - waste.134 In this sense, energy from waste is only partially renewable due to the presence of fossil-based carbon in the waste and only the energy contribution from the biogenic portion is counted towards renewable energy targets. If the waste is pre-treated to separate out the biogenic fraction then this can be considered entirely renewable.135

Considering the definition of RES under Slovenian legislation it is undisputable that biomass and biogas waste is considered RES. Biomass is the biodegradable fraction of products, waste and residues of biological origin from the agriculture (including vegetal and animal substances), forestry and related industries including fisheries and aquaculture, as well as the biodegradable fraction of industrial and municipal waste. For the use and processing of biomass into fuel, four processes apply:

• burning (the combustible material in the biomass oxidizes in CO2 and water vaporizes, thereby emitting heat), 
• biological conversion (anaerobic digestion, fermentation, etc.), 
• thermo-chemical conversion (pyrolysis) and 
• liquefaction and gasification (biodiesel, biogas etc.).136 

Sustainably sourced biomass has a low emissions footprint. On the downside, the process of burning biomass does release carbon into the atmosphere, meaning that the emissions resulting from biomass must be weighed against the emissions that would result from any of the power source biomass was looking to replace. Biogas is energy gas produced from biomass or from biodegradable waste, or wood gas that can be refined to a degree of quality, which is interchangeable with natural gas. 

Other types of waste (not falling under the scope of biomass, e.g. end-of-life tires and cars, batteries and accumulators, hazardous waste) could be used as energy sources, as described above, however, they are not considered renewable under Slovene legislation. Even globally, no common/unanimous accord on which waste type could be perceived as a renewable source of energy exists. Some have taken the position that, e.g. hazardous medical waste accounts as a renewable energy source, since it can be refined through the gasification process into ethanol, synthetic diesel and used to generate electricity.137 

2.3.2 Financial incentives and support 

The most important financial incentive by the Republic of Slovenia is provided through the 100% state owned limited liability company BORZEN, d.o.o., namely its operational Center for renewable energy sources and high-efficient cogeneration of heat and electricity support (“Borzen”). Another key financial support source is the Ministry of Infrastructure (in this section referred to as the “Ministry”) granting different types of financial incentives, including state aids, de minimis aids and other incentives. The Eco Fund, operating within the Ministry of the Environment and Spatial Planning is the third key financing institution in the field of environmental protection notably granting loans to natural and legal entities in Slovenia. 

2.3.3 Borzen support scheme 

The amendments of the Energy Act in 2008 enabled Borzen to distribute two types of supports to beneficiaries with respect to their renewable energy source (“RES”) and highefficiency cogeneration of heat and electricity (combined heat and power, the “CHP”) system in accordance with a decision issued by the Energy Agency. The Borzen support scheme as outlined hereunder is governed by the Energy Act and the Borzen Rules.138 As the new decrees on support from RES and CHP have not yet been adopted, we have highlighted the incentive regulation as determined by the Decree on support from RES139 and the Decree on support from CHP,140 which are no longer effective, yet still used for those incentive procedures prior to the 2015 amendments of the Energy Act. 

Under the first support, Borzen guarantees to purchase electricity produced and supplied to the public grid at a price determined by the Slovenian Government (regardless of the market price) for installations with a rated power output of less than one MW. With the second support, Borzen provides financial aids for current operations for all other producers not eligible for the guaranteed purchase. However, the beneficiary is entitled to only one type of support. The beneficiary receiving guaranteed purchase support is entitled to conclude a separate agreement for the sale of electricity on the open market, wherein in that case it only receives financial aid for current operations and no longer enjoys guaranteed purchase. Larger production units are entitled only to operational support. 

The beneficiary may be granted with a decision on the provision of support only if the production costs (including the usual market revenue on invested assets) for electricity from RES and CHP exceed the electricity market price. Based on the Energy Act, supports are allocated to production units using RES not exceeding 10 MW, and CHP plants not exceeding 20 MW of the rated electrical power, which were selected at open public calls by the Energy Agency. The RES and CHP sources and technologies eligible to receive Borzen’s support will supposedly be in detail determined in both decrees governing the support from RES and CHP,141 whilst the Energy Agency is authorized to include other sources and technologies on a case-by-case basis. Generally, CHP production installations may receive support for a term of ten years and RES production installations for 15 years as determined in the respective decision.

Borzen is financed through contributions of final consumers of electrical energy and final consumers of solid, liquid, gaseous fossil fuels or district heat for the final use. Suppliers of solid fossil fuel, liquid and gaseous fuels and heat are liable to calculate and transfer the contributions to Borzen. The level of the contributions is determined by the capacity and voltage of the delivery points, the category of customer and the purpose of the electricity use, determined in detail in the Decree on contributions for electricity from CHP and RES.142 

In September 2015, the Slovenian Government has adopted the Energy-balance sheet,143 wherein a support of MEUR 10 for new electricity producers with RES and CHP has been approved. Even so, Slovenia has not organized a public call yet due to the necessity of European Commission approval. In the absence of new decrees determining this incentive scheme, the Energy Agency has not issued any support decisions in the term from 2014 until nowadays,144 whilst simultaneously Borzen provided MEUR 147,1 supports for RES and CHP in 2015, wherein almost 46 % was intended for solar power plants.145 

As a general observation, the Slovene legislation does not adjust simultaneously to technological developments, nor is it in line with the spirit of EU legislation. For example, energy extracted from digested sludge with innovative operations (e.g. pyrolysis, gasification) was not specifically entitled to financial supports, although syngas may be directly used to generate electricity, and more importantly, although energy from sludge based biogas enjoyed support under the Decree on support from RES. This actually imposes the disposal of energetically used sludge, which could be once more recovered as a higher waste treatment operation. Although the said inconsistency is mitigated by the Energy Agency’s discretion to decide on a case-by-case basis if a certain RES shall be considered as such, such (and similar) legal uncertainties present a risk to a potential investor, as it may not foresee the outcome of its application. As initially noted, a majority of waste based energy sources currently do not enjoy the “renewable” status,146 although the Slovene legislator has already opened the way for certain non-traditional man-interfered RES, such as biodegradable municipal, industrial, agricultural and animal origin waste, to apply for state supports, and moreover, although specific CHP installations already enjoy financial support.

It stems from the foregoing that the Slovenian legislation has already exceeded the traditional and stringent non-fossil source concept with respect to financing the production of energy. Therefore, no legal impediments prevent the Slovene legislator to extend the scope of RES and CHP eligible under this support scheme. 

2.3.4 Eco Fund supports 

The Eco Fund is a state owned specialized public financial institution for granting soft loans, issuing securities, equity financing, granting non-reimbursable subsidies, performing financial leasing for a broad environmental protection purpose. Its activities, inter alia, include the promotion of investments in RES and CHP systems, and the promotion of the development of environment protection technologies and infrastructure. The Eco Fund’s supports are available through annual tenders, which remain open until the fund is fully utilized or until the end of the respective term. 

The Eco Fund publishes the public tenders with the Official Gazette of the Republic of Slovenia in accordance with the public tender legislation and then evaluates the applications for loans for environmental investments based on predetermined criteria. This enables a precise evaluation of projects and assessment of environmental impacts of individual projects. The environmental impacts of the investment are usually measured in quantities, such as the reduction of gas emissions, the amount of each separate collected or processed waste fractions (wood, plastic, metal, biological waste), the amount of purified wastewater, the specific concentration of pollution, etc. After completion of an investment, the Eco Fund monitors the environmental impacts based on reports provided by the legal entities and private entrepreneurs.147

The funds for the implementation and operation of the Eco Fund are provided by energy usage contributions charged for heating, electricity, solid, liquid and gas fuels. Every endcustomer pays the contribution the respective network operator or supplier. The Eco fund also obtains funds through interests on granted loans, and transfers from the state budget of the Climate Fund148 and through financial support of international institutions, namely European Investment Bank and International Bank for Reconstruction and Development.

In 2014, the Eco Fund has approved 1.099 loans worth MEUR 41.92 presenting only about 22% of MEUR 191.08 of the total value of all investment projects that were granted a loan. Most beneficiaries were approved for investments for reducing the impact of climate change and protection of air and climate (50,4 % of all loans in 2014) and the least for investments in waste management (1,1 % of all loans in 2014).149

According to the Eco funds Business and financial plan for 2016, the authority persists in its air and climate investments priority, particularly in the field of reducing greenhouse gas emissions. In the field of waste management, investments lean towards encouraging modern methods of collecting, sorting, recovering and reusing waste.150 E.g. in April 2016, the Eco Fund has published a public call for loans for environmental investments in the field of waste management in the total amount of MEUR 5.00 with a repayment term of 15 years.151

2.3.5 State aids and de minimis aids

State aids, de minimis aids and other incentives are determined in the Rules on promotion of energy efficiency and RES152 based on the relevant EU legislation.

State aids may be granted to investors for initial investments in projects allowing energy efficiency, use of RES or CHP, and the production, distribution and use of hydrogen as laid down by the respective call for tender. The beneficiary shall contribute its own funds of at least 25% of the eligible costs of the initial investment, which may not include public funds. An investment project must remain in the region for at least three-five years after completion of the investment depending on the size of the company.

Under substantially the same conditions as state aids, de minimis aids153 may be granted to investors for the above-said investments (not just initial) and for co-financing of advisory services in the field of efficient use of energy and use of renewable sources of energy. Allocated state aids and de minimis aids cannot exceed the maximum of 30% of the eligible costs with certain adjustments with respect to the company size. Consequently, the cumulating of state aids and de minimis aids is limited with the said threshold. The third type of incentives for investment projects and co-financing of advisory services is intended for municipalities and other non-profitable entities, as well as households.

The Republic of Slovenia has meagre public access to the evidence of investments granted state aids or de minimis aids. However, in a publicly resounding case in 2012 the company Green Line Oil intended to build a pyrolysis plant for producing petrol, diesel fuel, iron and black carbon from end-of-life tires, wherein the municipality proposed to exempt the investor from paying the municipal contribution in accordance with de minimis aid principle for ca. EUR 57,000. Due to the partial public resistance, the project was not carried out, therefore, the de minimis aid was not granted.

2.3.6 Tax allowances

The Renewable Energy Directive authorizes the EU Member States to implement support schemes in the form of tax exemptions or reductions and tax refunds. Currently, Slovenia does not provide for specific tax incentives with respect to renewable energy production.

Renewable energy sources are subject to the VAT. A corporate income tax reduction applies for investment in research and development, which could also apply for renewable energy and energy efficiency. Generally, the excise duty applies for energy products and electricity used as motor or heating fuel, notably fossil and biofuels (although currently at a zero EUR tax rate for the latter), except biomass. Excise exempt are, inter alia, energy products used for the production of electrical energy and CHP, as well as electrical energy produced from a non-fossil or non-nuclear RES power plant up to two MW used by the producer itself.

Nevertheless, the Slovenian sectoral taxation regulations determine several contributions with respect to the environmental pollution (e.g. emission of CO2, use of lubricating oils and liquids, pollution of-life motor vehicles, pollution caused by packaging waste) indirectly encouraging producers to use energy efficient measures and RES.154

2.4 End-of-waste regime

The end-of-waste regime in Slovenia essentially depends on the legal framework provided by the EU Waste Framework Directive and EU regulations, as the definition of waste being “a substance or object, which the holder discards, intends to discard or must discard” under the Slovenian Environmental Protection Act appears to be out-of-date considering the EU environmental legal framework. Slovenia has chosen to determine the by-product and the end-of-waste status in an implementing regulation, namely the Slovenian decree on waste.

2.4.1 End-of-waste criteria

The Slovenian end-of-waste status definition essentially corresponds to the definition provided by the Waste Framework Directive. Waste shall cease to be waste when it has undergone a recovery to products, materials or substances for the original or other purpose or to energy. Notwithstanding the afore-stated, certain waste that has undergone a recovery, including recycling, operation may cease to be waste if specific end-of-waste criteria determined with special regulations for such materials have been fulfilled within the recovery process and upon their handing over to another holder. The Ministry of the Environment shall immediately inform the European Commission of such special regulation.

In the absence of the general end-of-waste conditions as stipulated under items (a) to (d) of article 6(1) of the Waste Framework Directive155 in the Decree on waste, as well as specific conditions in sectoral regulations, Slovenia has only partially transposed the Waste Framework Directive. Therefore, primarily the existing EU regulations have to be observed in order to determine such special regulations for waste streams with already developed endof-waste criteria. On the EU level, criteria for iron, steel and aluminium scrap, including aluminium alloy scrap, copper scrap and glass cullet is already developed.156 Since the adoption of these regulations, technical studies on biodegradable waste subject to biological treatment (compost and digestate), plastics and waste paper have already been concluded, therefore, the Commission is currently developing the end-of-waste criteria for these waste streams. In the future, the Commission may develop end-of-waste criteria on additional streams such as aggregates and waste derived fuels,157 wherein the Commission’s latest efforts in revising the fertilizer regulation and the extractive waste directive, as well as studies of construction and demolition waste as a priority waste stream have to be observed as well.158 In 2013, the European Parliament has rejected the Commission’s proposal on waste paper end-of-waste criteria.159

The aforementioned EU regulations provide for a set of criteria (i) to be fulfilled by waste as the input materials in a recovery operation under certain treatment processes and techniques and as the output resulting from the recovery operation (the quality of waste resulting from the operation), and (ii) to be fulfilled by the producer (the statement of conformity and the quality management system requirements).

2.4.2 Incipient end-of-waste criteria in sectoral regulations

Following such instructions, partial end-of-waste criteria may be found scattered in Slovenian sectoral regulations.

Incipient end-of-waste criteria may be found in the Decree on waste tires determining that the establishment undertaking recovery shall recover scrap tires in such a way that (i) recycling leads to products, which cease to be waste in compliance with waste management regulations (notably the Slovenian Decree on waste) or (ii) they are used as fuel or for other energy production. The Ministry of Environment shall specify the recycling conditions of scrap tires into end-of-waste products in the environmental permit for processing waste tires taking into account the Commission Communication COM (2007),160 thereby granting the ministry the discretion in the decision making process without clear and pre-determined conditions (better yet: with reference to regulations with not pre-determined conditions).

Furthermore, first class compost and digestate with certain quality determined in an appendix to the Decree on biodegradable waste161 cease to be waste and become a product, if they were produced from biodegradable waste as determined in a table of another appendix to the said decree, respectively. In addition, the processor of biodegradable waste shall issue a declaration to the user of such compost and digestat. The Decree on biodegradable waste also contains provisions on accredited companies, which may provide quality supervision of the compost and digestate.

Due to the absence of specific end-of-waste criteria in Slovene legislation and following the general definition provided by the Decree on waste that waste shall cease to be waste when it has undergone a recovery to products, sectoral regulations for waste based fuels (products) have to be observed.

The Decree on the recovering of non-hazardous waste into solid fuel stipulates that solid waste is waste categorized as combustible waste (refuse derived fuel) and an energy carrier in solid form intended for energy recovery if it is prepared from at least two waste types from different subcategories listed in an appendix to the said decree.162 If only one or more types of waste from the same subcategory are used in the recovery operation, the product of such recovery is not considered solid fuel. The decree also determines the R12 recovery processes being mechanical treatment and thermal treatment, mixing of combustible liquid waste with solid waste due to their solidification, mixing of waste in order to achieve the desired caloric value and a combination of the said procedures. Further, the decree determines properties the solid fuel has to fulfill. Quality management system and the methods for classifying solid fuels into waste categories (statement of conformity) are also subject to the application for the environmental permit.

The Decree on biofuels and life cycle greenhouse gas emission163 puts forward conditions for lowering the amount of gas emissions. This should be achieved by creating efficient fuels and biofuels of higher quality. Although the decree does not specifically define end-of-waste criteria, it provides for conditions, which must be fulfilled by the suppliers as well as the producers of biofuels. Both biofuel suppliers and biofuel producers must ensure continuous increase in the quality of the fuels, resulting in lowering the gas emissions. Subsequently, a set of principles, prescribing the quality and origin of the substrate materials for biofuels is put forward by the decree. For instance, supplier of the biogas substrate must maintain a register that inter alia contains information on (i) quality, (ii) quantity, (iii) date of the purchase, and (iv) geographical origin of the substrate. The biofuel producer must also issue a statement of conformity, containing information on (i) statutory identity of the producer, (ii) independent auditor, supervising the quality of the biofuels, as well as (iii) quality, quantity and calorific value of the fuel. A draft statement of conformity shall be published by the Ministry of the Environment. Such provisions insure that only substrates, which were produced from appropriate and sustainable waste cycles are transformed into biofuels. Therefore, in a way, the decree establishes an additional checkpoint, ensuring that materials, which were regarded as end-of-waste under other regulations, indeed comply with the end-ofwaste criteria. Finally, the decree puts forward the term life cycle of the biofuel. However, this term should not be construed as an equivalent to the end-of-waste criteria. On the contrary, life cycle is a joint term for all the emissions, which are produced during the production, transportation and finale usage of biogas fuels.

The Decree on promotion of biofuels for motor vehicles164 puts forward conditions for maximizing the use of the abovementioned fuels. Similar to other sectoral regulations, it does not contain any tangible criteria on end-of-waste. However, it defines calorific value and density, which is required for a fuel to be considered as a biofuel. Therefore, it provides an ex post quality analysis for end-of-waste materials, which were subsequently made into biofuels. Moreover, the Decree puts forward a monitoring system to ensure that biofuels are of the right quality. Under the monitoring system, biofuels suppliers and providers must ensure that sufficient amounts of biofuels are placed on the market. According to the decree, biofuels should comprise 7,5 % of the total fuel market in Slovenia.

Furthermore, the Decree on small and medium combustion plants165 further provides for a system of solid, liquid and gas fuels simply determined as all in the furnace input combustible substances, including flame-retardant ingredients that may be used in combustion plants, yet does not determine an end-of-waste criteria for such fuels.

The Decree on energy products166 establishes a framework for the placement of energyrelated products on the market. Most importantly, the decree puts forward the obligations of the producer (and the importer) with respect to labeling products with the CE marking. As such, the decree does not determine the conditions when waste ceases to be waste, but merely puts forward the ex-post obligations of the producer with respect to drafting the statement of conformity and carrying out the conformity assessment of the product in accordance with the respective EU regulations on eco-design requirements. In addition, the decree provides for a system of supervisory and restrictive measures as to non-compliant products.

Although the absence of the general end-of-waste conditions in the Decree on waste is mitigated by the fact that the provision of article 6(1) of the Waste Framework Directive is in practice used directly, the lack of the end-of-waste criteria and conditions in sectoral regulations introduce a legal uncertainty into the national end-of-waste regime, which cannot be mitigated by the ex post waste-based fuels regulations determining products. The general goal of end of waste regulations is to encourage the use of waste as a resource and contribute to a more reliable definition of the transition point between the waste and the product, meaning to determine when the recovery process is completed and when waste becomes a product. Practice showed dilemmas and uncertainties with respect to the moment of transition from waste to product, as well as conditions to be fulfilled thereto.167 Keeping in mind that certification of products is reserved to institutions with accreditations to certify products; the lack of statutory standards could lead to unequal treatment of commercial entities in Slovenia.

It stems from the foregoing that that Slovenia reticently adopts sectoral end-of-waste regulations, even though the EU has empowered national legislators to adopt end-of-waste criteria not yet developed on EU level.

2.4.3 By-product criteria

Under the Slovenian Decree on waste, a substance or object, resulting from a production process, the primary aim of which is not the production of that substance or object is a production residue. Such production residue may be regarded as a by-product only if the following conditions are met: (i) further use of the production residue is certain and not just possible; (ii) the production residue can be used directly without any further processing other than normal industrial practices; (iii) the production residue is produced as an integral part of a production process; and (iv) the production residue fulfils all relevant product, environmental and health protection requirements for the specific use and will not lead to overall adverse environmental or human health impacts. The Decree on waste further provides for a system of legal presumptions for the residue holder to determine when the afore-mentioned conditions are deemed to be fulfilled, as well as documentation supporting the by-product status of the production residue. Such documentation is a sales and purchase agreement, technical (technological) and market analysis documentation and notably the Slovene technical and safety approvals, proof of product registration in accordance with the REACH Regulation168 or other evidence demonstrating the suitability of the product for placing it on the market (depending on the product). The production residue holder shall present proof on eligibility under the above-mentioned conditions if the Ministry of the Environment or the inspector requests so.

A negative definition of the production residue is also determined in the said decree. A substance or object is not considered to be a production residue, if the producer could produce the main product without this substance or object, however, decided contrary, or if the producer has deliberately changed the production process so that this substance or object has specific technical characteristics. A production residue is waste if (i) it is not classified as waste; (ii) for this production residue obligatory recovery or disposal processes are determined or if its further use is prohibited with regulations governing products or waste; (iii) requirements for its possible use determined in regulations governing products, environment and human health protection are not fulfilled; or (iv) the environmental impact of the production residue is greater that the impact of the substance or object intended to replace it.

Special by-products provisions are determined in the EU Animal by-products Regulation,169 as the provisions of the Slovenian Decree on waste do not apply, inter alia, for animal byproducts and derived products insofar as they are governed by the aforementioned regulation, except those determined for incineration, landfilling and use in a biogas or composting plant. Similar as with the end-of-waste criteria, incipient by-products definitions may be found in sectoral regulations. For instance, the Decree on waste incineration and co-incineration plants stipulates that a residue is considered to be any liquid or solid waste emerging in the incineration or co-incineration process including ash, slag, fly ash, sludge from wastewater treatment plants, spent catalysts and spent activated carbon, or other materials produced by the incineration or co-incineration of waste exhaust gas or waste water treatment or other processes within the incineration or co-incineration plant. The environmental permit shall be issued to the plant operator only if the residues are treated in accordance with the regulations governing waste management (notably the Decree on waste).

Following the above-said, Slovenia has followed the empowerment of article 40 of the Waste Framework Directive and implemented the general by-product definition into the Slovenian Decree on waste. Slovenia has even further developed this general definition by a system of positive and negative conditions, which need to be fulfilled in order to classify the production residue as a by-product. However, similar observations as described in the previous section may also be established for by-products. Considering that the decision if a certain substance or material is waste or a by-product is retained to the holder, the lack of sectoral by-products definitions does not comply with the main goal of such regulations, namely to enable the holder to lose its waste title, if and when the primary aim of the substance resulting from a production process is not the production of waste.

From the systematical legal point of view, the moment and conditions determining for waste to cease to be waste and to become products or by-products could either be implemented into existing sectoral regulations or in a specific comprehensive regulation, however, should be subject to intense cooperation between professionals working in the respective fields.

Notes

​

1 The Slovenian Environmental Protection Act (Official Gazette of the RS, no. 41/2004 et seq., the “Environmental Protection Act”).

2 The Slovenian Decree on waste (Official Gazette of the RS, no. 37/2015 et seq., the “Decree on waste”).

3 See subsection 4.1.1.4 Participants in the waste management process.

4 Article 20(3) and Article 104 of the Environmental Protection Act. In addition, the Decree on waste provides for that the following registers shall be kept by the Slovenian Environment Agency: (i) the Register on Waste Collectors, (ii) the Register on Waste Treatment Providers, (iii) the Register on Transport Operators, (iv) the Register on Traders with Waste and (v) the Register on Waste Brokers.

5 The Slovenian Environment Agency is a governmental body affiliated to the Ministry of the, which carries out the professional, analytic and administrative tasks at the national level.

6 The Directive 2008/98/EC of the European Parliament and of the Council on waste and repealing certain Directives [2008] OJ L 312/3, the “Waste Framework Directive.”

7 Articles 9 and 22(2) of the Decree on Waste. Other priority order may apply for particular waste streams.

8 The Slovenian Local Self-Government Act (Official Gazette of the Republic of Slovenia, no. 72/1993, et seq., “Local Self-Government Act”).

9 Article 149 of the Environmental Protection Act.

10 Article 149(2) of the Environmental Protection Act.

11 In accordance with Article 4 of the Slovenian Order on the management of separately collected fractions in the public service of municipal waste management (Official Gazette of the Republic of Slovenia, no. 21/01 et. seq., “Order on the separately collected fractions in the public service”), in conjunction with the Annex 1 to this Order, the following fractions shall be collected separately: (i) paper and paperboard, (ii) glass, (iii) clothes, (iv) textile, (v) edible oils and fats, (vi) paint, inks, adhesives and resins containing not containing hazardous substances, (vii) detergents not containing hazardous substances, (viii) certain separately collected batteries and accumulators, (ix) certain types of electricity and electronic equipment, (x) les not containing hazardous substances, (xi) plastics, (xii) metals, (xiii) residues from chimney sweeping, (xix) bulky waste, (xx) packaging from paper and cartoon, plastics, wood, metal, composite materials and glass.

12 Articles 14 and 15(1) of the Order on the management of separately collected fractions in the public service. In each agglomeration of over 8,000 inhabitants at least one such collection center shall be established.

13 Article 148 of the Environmental Protection Act.

14 No. 35402-2/2013/7 of March 13, 2013, p. 28.

15 Draft of the Waste Prevention Program of December 20, 2015, pp. 25-27 (available online). 

16 Those operational programs are: (i) Operational program on disposal of polychlorinated biphenyl and polychlorinated terphenyl for 2009-2012, (ii) Operational program on waste disposal aiming to decrease the quantity of biodegradable waste, (iii) Operational program on treatment with waste electrical and electronic equipment for 2006-2008, (iv) Operational program on treatment of construction waste for 2004-2008, (v) Operational program on reduction and prevention of pollution resulting from the waste of production of titanium dioxide for 2004-2007, (vi) Operational program on treatment with batteries and accumulators for 2003-2006, (vii) Operational program on treatment with waste oils for 2003-2006, (viii) Operational program for treatment with packaging and packaging waste for 2002-2007.

17 The Slovenian Decree on waste incineration and co-incineration plants (Official Gazette of the RS, no. 8/16 et seq., “Decree on waste incineration and co-incineration plants”).

18 The Directive 2010/75/EU of the European Parliament and of the Council on industrial emissions (integrated pollution prevention and control) [2010] OJ L 334/17, the “Directive on industrial emissions.”

19 The Slovenian Decree on the recycling of non-hazardous waste into solid fuel and on its use (Official Gazette of the Republic of Slovenia, no. 96/14, “Decree on the recovering of non-hazardous waste into solid fuel”).

20 Certain waste from unpolluted and polluted biomass, from agriculture, gardening, fisheries, forestry, hunting, from processing of meat, fish, other animal products, fruit, coffee, cocoa, tea and tobacco processing, from skin and fur industry, from textiles industry, from production of plastics, paints and varnishes, construction waste, waste from health services, certain municipal waste.

21 The Slovenian Decree on the treatment of biodegradable waste and the use of compost or digestate (Official Gazette of the Republic of Slovenia, no. 99/13 et seq., “Decree on the treatment of biodegradable waste and the use of compost or digestate”).

22 The Slovenian Decree on waste landfill (Official Gazette of the Republic of Slovenia, no. 10/14 et seq., “Decree on waste landfill”).

23 Under Articles 3(3), 6(1), Article 9(1), Article 10(1) and Annex 1 to the Decree on waste landfill the following substances are excluded from landfilling: liquids, explosive or flammable waste, used vehicles, electricity and electronic equipment, separated fractions of municipal waste.

24 Article 25 of the Decree on waste landfill. A landfill cannot be located on water protection zones, on the zone of Natura 2000 or on certain other protected zones. A landfill must be located at least 300 meters to the residential areas, tourism areas, green areas, water areas, water infrastructure areas and at least 50 meters to the agricultural areas.

25 According to Article 2(1) of the Decree on waste treatment in mobile plants all recovery operations may be performed in mobile plants, except (i) recovery operation classified as R1 under the Waste Framework Directive and (ii) any recovery operation classified under classification R in accordance with the Waste Framework Directive, if wastewater is released into the environment.

26 The respective regulations are the following: (i) the Slovenian Decree on the management of waste edible oils and fats (Official Gazette of the Republic of Slovenia, no. 70/08, “Decree on waste edible oils and fats”); (ii) the Slovenian Rules on storage of rubber wastes (Official Gazette of the Republic of Slovenia, no. 37/11, “Rules on storage of rubber wastes”) and the Slovenian Decree on the management of waste tires (Official Gazette of the RS, no. 63/2009, the “Decree on waste tires”; (iii) the Slovenian Decree on end-of-life vehicles (Official Gazette of the Republic of Slovenia, no. 32/11 et seq., “Decree on end-of-life vehicles”); (iv) the Slovenian Decree on the management of batteries and accumulators and waste batteries and accumulators (Official Gazette of the Republic of Slovenia, no. 3/10 et seq., “Decree on the waste batteries and accumulators”); (v) the Slovenian Decree on packaging and packaging waste handling (Official Gazette of the Republic of Slovenia, no. 84/06 et seq., “Decree on waste packaging”); and (vi) the Slovenian Decree on waste oils (Official Gazette of the Republic of Slovenia, no. 24/12, “Decree on waste oils”).

27 Article 10(1) of the Decree on waste oils, Article 8(2) and 8(3) of the Decree on waste batteries and accumulators, Article 5(1) of the Decree on of waste tires, Article 4(1) of the Decree on waste edible oils and fats, Article 14(1) of the Decree on waste packaging.

28 Register of waste oils collectors (Article 13 of the Decree on waste edible oils and fats); Register of individual scheme for waste packaging management (Article 28 of the Decree on waste packaging); Register of end-of-life tires collectors (Article 15(5) of the Decree on waste tires); Register of waste batteries and accumulators collectors (Article 16 of the Decree on waste batteries and accumulators); Register of end-of-life vehicles collectors (Article 25(5) of the Decree on end-of-life vehicles); Register of waste oils collectors (Article 9(1) of the Decree on waste oils).

29 Article 9(1) of the Decree on end-of-life vehicles, Article 4(3) of the Decree on waste tires, Article 9 of the Decree on waste batteries and accumulators, Article 19 of the Decree on waste packaging.

30 See subsection 4.1.2.2. Cross-border waste shipment.

31 The Commission Decision 2000/532/EC replacing Decision 94/3/EC establishing a list of wastes pursuant to Article 1(a) of Council Directive 75/442/EEC on waste and Council Decision 94/904/EC establishing a list of hazardous waste pursuant to Article 1(4) of Council Directive 91/689/EEC on hazardous waste [2000] OJ L 226/3. Article 4 of the Decree on waste.

32 Waste is categorized in the following 20 categories:

• wastes resulting from exploration, mining, quarrying, physical and chemical treatment of minerals;
• wastes from agriculture, horticulture, aquaculture, forestry, hunting and fishing, food preparation and processing;
• wastes from wood processing and the production of panels and furniture, pulp, paper and cardboard;
• wastes from the leather, fur and textile industries;
  
• wastes from petroleum refining, natural gas purification and pyrolytic treatment of coal;
  
• wastes from inorganic chemical processes;
  
• wastes from organic chemical processes;
  
• wastes from the manufacture, formulation, supply and use (MFSU) of coatings (paints, varnishes and vitreous enamels), adhesives, sealants and printing inks;
  
• wastes from the photographic industry;
  
• wastes from thermal processes;
  
• wastes from chemical surface treatment and coating of metals and other materials; non-ferrous hydrometallurgy;
  
• wastes from shaping and physical and mechanical surface treatment of metals and plastics;
  
• oil wastes and wastes of liquid fuels (except edible oils, wastes from petroleum refining, natural gas purification and pyrolytic treatment of coal and wastes from shaping and physical and mechanical surface treatment of metals and plastics);
  
• waste organic solvents, refrigerants and propellants (except wastes from organic chemical processes and wastes from the manufacture, formulation, supply and use (MFSU) of coatings (paints, varnishes and vitreous enamels), adhesives, sealants and printing inks);
  
• waste packaging; absorbents, wiping cloths, filter materials and protective clothing not otherwise specified;
  
• wastes not otherwise specified in the list;
  
• construction and demolition wastes (including excavated soil from contaminated sites);
  
• wastes from human or animal health care and/or related research (except kitchen and restaurant wastes not arising from immediate health care);
  
• wastes from waste management facilities, off-site waste water treatment plants and the preparation of water intended for human consumption and water for industrial use;
  
• municipal wastes (household waste and similar commercial, industrial and institutional wastes) including separately collected fractions.
  

33 The Commission Regulation 1357/2014 replacing Annex III to Directive 2008/98/EC of the European Parliament and of the Council on waste and repealing certain Directives [2014] OJ L 365/89, the “Commission Regulation 1357/2014.” Article 3(8) and 3(9) of the Decree on waste.

34 Article 7(1) of the Decree on waste.

35 The Regulation 1013/2006 of the European Parliament and of the Council [2006] OJ L 190/1, the “Regulation on waste shipment.”

36 The competent inspectorate is the Inspectorate for the Environment and Spatial Planning which is a body affiliated to the Ministry of the Environment. Articles 27(1), 27(3) and 27(6) of the Decree on waste.

37 Article 3(18) of the Decree on waste and Annex 2 to the Waste Framework Directive. The waste recovery operations include: (i) use principally as fuel or other means of energy generation, (ii) solvent reclamation/regeneration, (iii) recycling/reclamation of organic substances which are not used as solvents (including composting and other biological transformation processes), (iv) recycling/reclamation of metals and metal compounds, (v) recycling/reclamation of other inorganic materials, (vi) regeneration of acids or bases, (vii) recovery of components used for pollution abatement, (viii) recovery of components from catalysts, (ix) oil re-refining or other reuses of oil, (x) land treatment resulting in benefit to agriculture or ecological improvement, (xi) use of waste obtained from any of the operations numbered R 1 to R 10, (xii) exchange of waste for submission to any of the operations numbered R 1 to R 11, (xiii) storage of waste pending any of the operations numbered R 1 to R 12 (excluding temporary storage, pending collection, on the site where the waste is produced).

38 Article 13 of the Waste Framework Directive and Article 10(1) of the Decree on waste.

39 Articles 23(1) and 23(4) and 38(2) of the Waste Framework Directive and Article 20(2) of the Environmental Protection Act.

40 Article 42(1) of the Decree on waste.

41 Article 43 of the Decree on waste.

42 Article 50 of the Environmental Protection Act.

43 Article 3 of the Slovenian Decree on environmental encroachments that require environmental impact assessments (Official Gazette of the Republic of Slovenia, no. 51/14 et seq., “Decree on environmental encroachments”), in conjunction with the point E.I.1 of the Annex 1 to this Decree.

44 Articles 75 and 58(1) and 58(2) of the Environmental Protection Act. The environmental impact assessment, the application and the draft environmental consent are made public by the ministry and the interested public is allowed to submit observations and to express opinions.

45 Article 3(13) of the Decree on waste and Annex 2 of the Waste Framework Directive. Waste disposal activities include: (i) deposit into or on to land (e.g. landfill), (ii) land treatment (e.g. biodegradation of liquid or sludgy discards in soils), (iii) deep injunction (e.g. injunction of pump-able discards into wells, salt domes or naturally occurring repositories), (iv) surface impoundment (e.g. placement of liquid or sludgy discards into pits, ponds or lagoons), (v) specially engineered landfill (e.g. placement into lined discrete cells which are capped and isolated from one another and the environment), (vi) release into a water body except seas/oceans and (vii) release to seas/oceans, including sea-bed insertion.

46 Article 23 of the Decree on waste.

47 Article 50 and Article 53 of the Decree on waste.

48 Bourguignon D., Understanding waste streams: Treatment of specific waste, European Parliament, Brussels 2015, pg. 1.

49 Data of the Statistical Office of the Republic of Slovenia (available online).

50 Article 16 of the Waste Framework Directive.

51 Article 32 of the Waste Framework Directive.

52 In Salonit they can incinerate (almost) everything (V Salonitu lahko sežigajo (skoraj) vse) and Victory in the battle of waste incineration (Zmaga v bitki sežiganja odpadkov) (both available online).

53 Municipal Waste Treatment in 2013, Graph by CEWEP, source EUROSTAT 2013 (available online).

54 Data of the Slovenian Environment Agency: Environmental indicators in Slovenia (available online).

55 Data of the Slovenian Environment Agency: Environmental indicators in Slovenia (available online).

56 Court of Audit of the Republic of Slovenia: Audit Report - Cross-Border Waste shipment, September 19, 2013, p. 25, 27.

57 Basel Convention of March 22, 1989.

58 Decision C (2001)107/final, 14 June 2001.

59 The Commission Regulation 1418/2007 concerning the export for recovery of certain waste listed in Annex III or IIIA to Regulation 1013/2006 of the European Parliament and of the Council to certain countries to which the OECD Decision on the control of transboundary movements of wastes does not apply [2007] OJ L 316/6, the ˝Commission Regulation 1418/2007.˝

60 Article 36 of the Regulation on waste shipment prohibits the export of the following waste destined for recovery:

• (a) wastes listed as hazardous in Annex V, 
• (b) wastes listed in Annex V, Part 3, 
• (c) hazardous wastes not classified under one single entry in Annex V, 
• (d) mixtures of hazardous wastes and mixtures of hazardous wastes with non-hazardous wastes not classified under one single entry in Annex V, 
• (e) wastes that the country of destination has notified to be hazardous under Article 3 of the Basel Convention, 
• (f) wastes the import of which has been prohibited by the country of destination, 
• (g) wastes which the competent authority of dispatch has reason to believe will not be managed in an environmentally sound manner, as referred to in Article 49, in the country of destination concerned. 

61 According to Article 41(1) of the Regulation on waste shipment the imports of waste destined for disposal are allowed: 

• ​from countries which are Parties to the Basel Convention,
• from other countries with which the European Union, or the European Union and its Member States, have concluded bilateral or multilateral agreements or arrangements,
  
• from other countries with which individual Member States have concluded bilateral agreements or arrangements,
  

from other areas in cases where, on exceptional grounds during situations of crisis, peacemaking, peacekeeping or war, no bilateral agreements or arrangements can be concluded or where a competent authority in the country of dispatch has either not been designated or is unable to act. 

62 The Slovenian Decree on the implementation of the Regulation (EC) No. 1013/2006 on shipments of waste (Official Gazette of the RS, no. 71/2007, the “Decree on the implementation of the Regulation on waste shipment”). 

63Audit report of the Court of Audit of the Republic of Slovenia on the Cross-Border Waste Shipment, September 19, 2013, p. 48 and 49.

64 A new operational program of municipal waste management is currently in the process of adoption.

65 Court of Audit of the Republic of Slovenia: Audit Report - Cross-Border Waste shipment, September 19, 2013, p. 70.

66 See Article 15 of the Decree on the implementation of the Regulation on waste shipment and Article 51 of the Regulation on waste shipment.

67 Court of Audit of the Republic of Slovenia: Audit Report - Cross-Border Waste shipment, September 19, 2013, p. 54.

68 Ibid., p. 71.

69 Ibid., p. 72.

70 Ibid., p. 68, 71.

71 Ibid., p. 37.

72 See Article 50(1) of the Regulation on waste shipment.

73 Court of Audit of the Republic of Slovenia: Audit Report - Cross-Border Waste shipment, p. 40, 41 and 70.

74 Bourguignon D., Understanding waste streams: Treatment of specific waste, European Parliament, Brussels 2015, pg. 4.

75 At the end of 2007, there were 83 disposal sites in Slovenia, namely 60 public infrastructure sites and 23 for industrial waste, either in operation or due for closure.

76 Waste Statistics Report, Official Eurostat Report for 2014 (available online).

77 Aleksic D., Municipal waste management in Slovenia, European Environment Agency, Copenhagen 2013, pg. 4.

78 Kapitler M. et al., Operation of waste-to-energy-plant optimisations by using design exploration, Faculty of Engineering, Maribor 2012, pg. 101-112.

79 Waste Statistics Report, Official Report of the Slovenian Environment Agency for 2014 (available online).

80 Waste Statistics Report, Official Report of the Slovenian Environment Agency for 2014 (available online).

81 Study on the selection of waste streams for End of Waste assessment: Final Report, European Commission, Office for Official Publications of the European Communities, Luxembourg 2009, pg. 15.

82 Waste Statistics Report, Official Report of the Slovenian Environment Agency for 2014 (available online).

83 Bourguignon D., Understanding waste streams: Treatment of specific waste, European Parliament, Brussels 2015, pg. 6.

84 Messenger B., Tackling Tyre Waste, in: Waste Management Worldwide Magazine nr. 2 (2014), pg. 43.

85 Waste Statistics Report, Official Report of the Slovenian Environment Agency for 2014 (available online).

86 Bourguignon D., Understanding waste streams: Treatment of specific waste, European Parliament, Brussels 2015, pg. 10.

87 Ibid., pg. 10.

88 Waste Statistics Report, Official Report of the Slovenian Environment Agency for 2014 (available online).

89 Ibid.

90 Department for Environment Food & Rural Affairs, Incineration of Municipal Solid Waste, Crown Copyright, London 2012, pg. 7-15.

91 Ibid.

92 For a more detailed insight on when a plant is considered to be a co-incineration plant see: Environment Agency, Guidance on when a plant is a Co-Incineration Plant, UK Government, London 2011, pg. 1-3.

93 According to Article 3 of the Waste Incineration Directive, co-incineration is defined as: »any stationary or mobile plant whose main purpose is the generation of energy or production of material products and: (i) which uses waste as a regular or additional fuel; or (ii) in which waste is thermally treated for the purpose of disposal.«

94 Wongkhorsub C. and Chindaprasert C., A Comparison of the Use of Pyrolysis Oils in Diesel Engine, in: Energy and Power Engineering nr. 5 (2013), pg. 350-355.

95 The Directive 2009/28/EC of the European Parliament and of the Council on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC [2009] OJ L 140/16, the “Renewable Energy Directive.”

96 Bioliquids Refinery, Pyrolysis Oil Applications, BTG Biomass Technology Group, Enschede 2016, pg. 1.

97 A. P. Brownsort, Biomass Pyrolysis Processes: Review of Scope, Control and Variability, UKBRC, Edinburgh 2009, pg. 18-21.

98 Department for Environment Food & Rural Affairs, Incineration of Municipal Solid Waste, Crown Copyright, London 2012, pg. 7-15.

99 Department for Environment Food & Rural Affairs, Incineration of Municipal Solid Waste, Crown Copyright, London 2012, pg. 7-15.

100 Worley M. and Yale J., Biomass Gasification Technology Assessment: Consolidated Report, U.S. Department of Energy, Oak Ridge 2012, pg. 2-8.

101 Sherman R., Large-Scale Organic Materials Composting, North Carolina State University, North Carolina 2012, pg. 2-15.

102 Ibid.

103 The Slovenian Construction Act (Official Gazette of the RS, no. 102/04 et seq., the “Construction Act”).

104 The Slovenian Energy Act (Official Gazette of the RS, no. 17/2014 et seq., the “Energy Act”).

105 If the energy plant is categorized as an object of national importance the building permit is issued by the Ministry of the Environment, wherein all municipal waste incineration plants are categorized as objects of national importance.

106 The Slovenian Decree on the content of report on the effects of intended activity into the environment and its method of drawing up (Official Gazette of the RS, no. 36/09 et seq., “Decree on the environmental report”).

107 The Slovenian Decree on activities and greenhouse gases for which a permit for greenhouse gas emissions is required or monitoring of greenhouse gas emissions should be implemented (Official Gazette of the RS, 55/11, “Decree on activities and greenhouse gases”). E.g., a facility will fall under the scope of this decree if it produces charcoal or organic chemicals with crecking and reforming or oxidation process and has the capacity of 100 tons per day.

108 The Slovenian Decree on the environmental tax on carbon dioxide emissions (Official Gazette of the RS no. 22/16, “Decree on the environmental tax on carbon dioxide emissions”).

109 Article 2 of the Decree on environmental tax on carbon dioxide emissions, Article 2 of the Decree on the environmental tax pollution from the landfilling of waste (Official Gazette of the RS, no. 14/14, “Decree on the environmental tax pollution from the landfilling of waste”).

110 The Slovenian Rules on issuing energy permits, (Official Gazette of the RS, no. 19/16 et seq., “Rules on issuing energy permits”).

111 Currently, a new Resolution on the National Energy Concept is being discussed with the interested parties, however, the Resolution on the National Energy Program is still in force.

112 Resolucija o nacionalnem energetskem programu, Akcijski načrt za obnovljive vire energije za obdobje 2010-2020 (AN OVE) Slovenija, Akcijski načrt za energetsko učinkovitost za obdobje 2014-2020 (AN URE 2020), Operativni program ukrepov zmanjšanja emisij toplogrednih plinov do leta 2020 (all available online).

113 The Slovenian Decree amending the Regulation on classification of construction with regard to their complexity (Official Gazette of the RS, no. 18/13 et seq., “Decree on classification of constructions”).

114 The Slovenian Decree amending the Decree on the introduction and application of uniform classification of facilities and on the designation of facilities of national importance (Official Gazette of the RS, no 109/11 et seq., “Decree on the classification and designation of facilities”).

115 For example when constructing a biogas production facility, the authority has to ensure that minimal distance between the envisaged facility and the residential and other areas has been taken into account as determined in the Slovenian Decree on the treatment of biodegradable waste and the use of compost or digestate (Official Gazette of the Republic of Slovenia, no. 99/2013 et seq., “Decree on biodegradable waste”).

116 The required approvals depend on the location. If the envisaged construction is located on the areas of potable water reserves, the approval of Slovenian Water Agency is required.

117 Essential utilities are determined by the authority in the case of energy plants.

118 If the distributor supplies heat to more than one hundred household customers heating may only be provided as a service of general economic interest under the Energy Act.

119 The Slovenian Decree on maintenance works for the public benefit and the energy sector (Official Gazette of the Republic of Slovenia, no. 125/04 et seq., “Decree on maintenance works for the public benefit and the energy sector”).

120 Namely the Slovenian Rules on the maintenance of electricity installations (Official Gazette of the RS, no. 98/15 et seq., “Rules on the maintenance of electricity installations”), the Slovenian Decree on the energy infrastructure (Official Gazette of the RS, no. 22/16, “Decree on the energy infrastructure”) and the Decree on the maintenance works for the public benefit in the energy sector.

121 The Slovenian Decree on the performance of mandatory national public utility service in the field of urban waste incineration (Official Gazette of the RS, no. 123/04 et seq., “Decree on public utility service in the field of urban waste incineration”).

122 Regionalni center za ravnanje z odpadki (RCERO) Ljubljana. 

123 Document identifying the investment project, January 2011 (Dokument identifikacije investicijskega projekta) (available online).

124 See e.g. The investor of new plants will be the government, Specialized magazine for packaging, environment and logistics no. 56 as of February 2011 (Investitor v nove objekte bo država, Specializirana revija za embalažo, okolje in logistiko št. 56, februar 2011) (available online).

125 See e.g. Biogas and the supervision of the operation (Bioplinarne in nadzor nad njihovim delovanjem) (available online). The non-governmental international association for the protection of the environment and nature Alpe Adria Green generally supports the construction of biogas plants, whilst criticizes the supervision of the commercial activities of such undertakings in Slovenia.

126 See e.g. Arguments against incineration (Razlogi proti sežigu) (available online). The nongovernmental association Ecologists without borders criticizes incineration plants for destroying natural resources, whilst in its opinion recycling and alternative technologies provide for a number of positive environmental, energy, economic and social effects.

127 Decision of the council of municipality Semič, June 21, 2012 (Odlok občinskega sveta občine Semič) (available online).

128 Due to the pressure of civil initiative investor will invest in Austria instead of Semič, 13. 7. 2012 (Zaradi civilne iniciative namesto v Semič vlagatelj raje v Avstrijo) (available online).

129 For comparison, the estimated capacities of the Slovenian biogas plants amounted to 464.650 t per year in 2014, however, different primary inputs have to be observed. The Draft Operating waste management program proposed by the Government of the RS as of December 20, 2015, pg. 117 (available online).

130 The investor of new plants will be the government, Specialized magazine for packaging, environment and logistics no. 56, February 2011 (Investitor v nove objekte bo država, Specializirana revija za embalažo, okolje in logistiko št. 56, februar 2011) (available online); Operating waste management program, adopted by the Government of the RS, March 13, 2013.

131 Akcijski načrt za obnovljive vire energije za obdobje 2010-2020 (AN OVE) Slovenija, Akcijski načrt za energetsko učinkovitost za obdobje 2014-2020 (AN URE 2020) (both available online).

132 In 2014, the share of energy from RES in the gross final consumption was 22 %. In 2005, the share was merely 16 %. Sources: Data of the Statistical Office of the Republic of Slovenia and the Slovenian Environment Agency, the Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Renewable energy progress report, June 15, 2016, pg. 5, and the Report on achievement of national target report on renewable energy sources and cogeneration 20122014, p. 25 (all available online).

133 E.g. many of the biogenic materials that can be found in the residual waste streams, such as food, paper, card and natural textiles, are derived from intensive agriculture – monoculture forests, cotton fields and other “green deserts”. The ecosystems from which these materials are derived could not survive in the absence of human intervention, and of energy inputs from fossil sources. It is, therefore, more than debatable whether such materials should be referred to as renewable. However, even granting them this status, the claim that residual waste is a source of renewable energy is even more problematic. (M. Brown, Is a waste a source of renewable energy?, December 2014).

134 K. Millrath, N. J. Themelis, Waste as a Renewable Source of Energy: Current and Future Practices, November 2003, pg. 2 (available online).

135 Energy from waste, a guide to the debate, the Department for Environment Food & Rural Affairs of the UK, February 2014, p. 27 (available online).

136 The Slovenian National renewable energy action plan 2010-2020 (Akcijski načrt za obnovljive vire energije za obdobje 2010-2020 (AN OVE) Slovenija) (available online).

137 S. Lacey, Is Waste-to-Energy Renewable? September 2009 (available online).

138 The Slovenian Rules on the operation of Centre for RES/CHP support (Official Gazette of the RS, no. 86/2009 et seq., “Borzen Rules”).

139 The Slovenian Decree on support for electricity generated from renewable energy sources (Official Gazette of the RS, no. 37/2009 et seq., “Decree on support from RES”).

140 The Slovenian Decree on support for electricity generated from high-efficiency cogeneration of heat and electricity (Official Gazette of the RS, no. 37/2009 et seq., “Decree on support from CHP”).

141 The eligible RES technologies pursuant to article 3 of the (no longer effective) Decree on support from RES are those exploiting:

• the energy potentials of watercourses; 
• the wind energy used in production plants on land; 
• ​the solar energy used in photovoltaic production plants;
  
• the geothermal energy;
  
• the energy extracted from wood biomass, namely from forest and plantation wood, by-products and residues from the wood processing industry and spent wood;
  
• the energy extracted from biogas originating from (i) agricultural biomass (energy crops and biodegradable fraction of products, residues and waste), and (ii) biodegradable municipal and industrial waste;
  
• the energy extracted from landfill gas;
  
• the energy extracted from gas originating from sludge from wastewater treatment plants;
  
• the energy extracted from biodegradable municipal and industrial waste, sludge from wastewater treatment plants and digested sludge from anaerobic treatment of biodegradable waste.
  

The eligible CHP technologies pursuant to articles 3 and 3a. of the (no longer effective) Decree on support from CHP are those based on the following energy technologies: 

• combined cycle gas turbine with waste heat recovery;
• steam backpressure turbine;
• ​condensing steam turbine;

• gas turbine with waste heat recovery;

• internal combustion engine with waste heat recovery;
  

• internal combustion engine with waste heat recovery;
  

• steam engines;
  

• Stirling engines;
  

• fuel cells; and
  

• turbines with an organic Rankine cycles.
  

142 The Slovenian Decree on the method of determining and calculating the contributions to provide support for the production of electricity from high efficiency cogeneration and renewable energy sources (Official Gazette of the RS, no. 46/15, “Decree on contributions for electricity from CHP and RES”). 

143 Energetska bilanca Republike Slovenije za leto 2015 (available online). 

144 Energy Agency, The Government of the Republic of Slovenia approved MEUR 10 of supports for new projects in RES and CHP (Vlada RS odobrila 10 milijonov evrov za podpore novim projektom OVE in SPTE) (available online). 

145 In 2015 MEUR 147,1 of supports for the production of electrical energy from RES and CHP were paid (V letu 2015 izplačanih 147,1 mio EUR za podpore proizvodnji električne energije iz OVE in SPTE) (available online). 

146 See subsection 4.3.1 Renewable energy sources. 

147 Business policy of Eco Fund in period 2016-2020 (Poslovna politika Eko sklada, Slovenskega okoljskega javnega sklada v obdobju od 2016 do 2020) (available online). 

148 The Climate Fund is a state budgetary fund, established for cofinancing the measures to mitigate and adapt to climate changes. It is financed by auctioning allowances under the EU Emission Trading System. (Article 128 of the Environmental Protection Act). 

149 Annual report on activity and performance of Eco Fund in 2014 (Letno poročilo o dejavnosti in poslovanju Eko sklada, Slovenskega okoljskega javnega sklada, v letu 2014), p. 7-8 (available online) 

150 The Business and financial plan of Eco Fund for 2016 (Poslovni in finančni načrt Eko Sklada, Slovenskega okoljskega javnega sklada, za leto 2016), p. 15 (available online). 

151 The public call for loans for environmental investments no. 56PO16 (Javni poziv za kreditiranje okoljskih naložb 56PO16) (available online). 

152 The Slovenian Rules on the promotion of energy efficiency and use of renewable energy sources, (Official Gazette of the RS, no. 89/08 et seq., “Rules on promotion of energy efficiency and RES”). 

153 A de miminis aid under article 3. of the Rules on promotion of energy efficiency and RES is an aid granted to a single company, which does not exceed the threshold EUR 200,000 or EUR 100,000 for the company, which operates in the sector of road haulage and passenger transport over the last three fiscal years, irrespective of the instrument or purpose of the aid in accordance with the EU legal framework. 

154 The Decree on environmental tax on air pollution caused by the emission of carbon dioxide (Official Gazette of the RS, no. 47/13 et seq.), the Decree on environmental tax for the pollution caused by the use of lubricating oils and liquids (Official Gazette of the RS, no. 53/05 et seq.), the Decree on environmental tax for the pollution of-life motor vehicles (Official Gazette of the RS, no. 87/05 et seq.), the Decree on environmental tax for the pollution caused by packaging waste (Official Gazette of the RS, no. 32/06 et seq.), the Decree on environmental tax for pollution of the environment caused by the generation of waste electrical and electronic equipment (Official Gazette of the RS, no 32/06), the Decree on environmental tax for pollution of-life tires (Official Gazette of the RS, no. 32/06), the Decree on environmental tax for environmental pollution due to the use of colatile organic compounds (Official Gazette of the RS, no. 122/07 et seq.), the Decree on environmental tax for the pollution caused by discharges of waste water (Official Gazette of the RS, no. 80/12 et seq.), and the Decree on environmental tax for the pollution caused by waste disposal in landfills (Official Gazette of the RS, no 14/14). 

155 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. ​

156 The Council Regulation 333/2011 establishing criteria determining when certain types of scrap metal cease to be waste under Directive 2008/98/EC of the European Parliament and of the Council [2011] OJ L 94/2, the Commission Regulation 715/2013 establishing criteria determining when copper scrap ceases to be waste under Directive 2008/98/EC of the European Parliament and of the Council [2013] OJ L 201/14, and the Commission Regulation 1179/2012 establishing criteria determining when glass cullet ceases to be waste under Directive 2008/98/EC of the European Parliament and of the Council [2012] OJ L 337/31.

157 Waste and recycling, Joint Research Centre, Institute for Prospective Technological Studies (IPTS) (available online).

158 Ibid and Waste, Construction and Demolition Waste (CDW), European Commission (available online).

159 MEPs veto paper waste proposal amid environmental concerns, European Parliament (available online).

160 The Communication from the Commission to the Council and the European Parliament on the Interpretative Communication on waste and by-products (COM/2007/0059) provides a decision tree in order to decide if a material is waste or a by-product.

161 The Slovenian Decree on the treatment of biodegradable waste and the use of compost or digestate (Official Gazette of the RS, no. 99/13 et seq., “Decree on biodegradable waste”.

162 See subsection 4.1.1.2.1. Facilities and plants.

163 The Slovenian Decree on the sustainability criteria for biofuels and life cycle greenhouse gas emission (Official Gazette of the Republic of Slovenia, no. 38/12., “Decree on biofuels and life cycle greenhouse gas emission”).

164 The Slovenian Decree on the promotion of the use of biofuels and other renewable fuels for the propulsion of motor vehicles (Official Gazette of the Republic of Slovenia, no. 103/07 et seq., “Decree on promotion of biofuels for motor vehicles”).

165 The Slovenian Decree on the emission of substances into the atmosphere from small and medium combustion plants (Official Gazette of the RS, no. 24/2013 et seq., “Decree on small and medium combustion plants”).

166 The Slovenian Decree on ecodesign requirement for energy-related products (Official Gazette of the Republic of Slovenia, no. 76/14, “Decree on energy products”).

167 How to »zero waste« in Slovenia? (Kako do “nič odpadkov” v Sloveniji) (available online).

168 The Commission Regulation 2015/830 amending Regulation 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) [2015] OJ L 132/8, the “REACH Regulation.”

169 The Regulation 1069/2009 of the European Parliament and of the Council laying down health rules as regards animal by-products and derived products not intended for human consumption and repealing Regulation (EC) No 1774/2002 (Animal by-products Regulation) [2009] OJ L 300/1, the “Animal by-products Regulation.” Implemented with the Slovenian Rules on animal by-products not intended for human consumption (Official Gazette of the RS, no. 58/2001, “Rules on animal by-products”).