Baci Bedfordshire Ltd, R (on the application of) v Environment Agency & Anor, Court of Appeal - Administrative Court, November 06, 2018, [2018] EWHC 2962 (Admin)

Resolution Date:November 06, 2018
Issuing Organization:Administrative Court
Actores:Baci Bedfordshire Ltd, R (on the application of) v Environment Agency & Anor
 
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Case No: CO/1855/2018

Neutral Citation Number: [2018] EWHC 2962 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 6 November 2018

Before :

MRS JUSTICE LANG DBE

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Between :

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Daniel Stedman Jones (instructed by Richard Buxton) for the Claimant

Guy Williams (instructed by Environment Agency Legal Services) for the Defendant

Richard Harwood QC (instructed by Hogan Lovells International LLP) for the Interested Party

Hearing dates: 10 & 11 October 2018

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JudgmentMrs Justice Lang:

  1. The Claimant seeks judicial review of the decision made by the Defendant, in a notice dated 26 January 2018, to grant to Convanta Energy Limited (``Covanta'') an environmental permit (``the Permit''), under the Environmental Permitting Regulations 2016 (``the EPR 2016''), for an energy recovery facility (``ERF'') at a site at Rookery Pit, Stewartby, Bedfordshire (``the Site'').

  2. The Claimant is an action group comprised of interested local residents who, along with others, objected to Covanta's application for the Permit when it was made. The Defendant is the statutory regulator who has responsibility for issuing the Permit and enforcing its terms. Covanta will operate the ERF at the Site.

  3. The Claimant's sole ground of challenge was that the Defendant issued the Permit for a proposed operation whose emissions management system in relation to fugitive emissions from Incinerator Bottom Ash (``IBA'') was premised upon a mistake of fact and/or erroneous science in respect of the discharge of potentially harmful heavy metals. The Claimant contended that, in consequence, there was a risk of unmonitored discharge of toxic dissolved heavy metals, via surface water drainage, into nearby Stewartby Lake, which feeds into the River Ouse system and finally into the public drinking water. This discharge would be in breach of the Industrial Emissions Directive 2010/75/EU (``the IED 2010'') and the EPR 2016.

  4. Both the Defendant and Covanta conceded the error by Covanta, but denied that the Defendant relied upon it when issuing the Permit. They also denied that there was a risk of unmonitored discharge of toxic dissolved heavy metals into the surface water drainage system.

    Facts

  5. Covanta obtained planning approval for an ERF at this Site by development consent order in 2011.

  6. Covanta applied for the Permit on 15 February 2017. The purpose of the ERF is to recover energy from residual waste through incineration. Once constructed, the ERF will have the capacity to process some 585,000 tonnes per annum of waste. Only non-hazardous waste will be processed.

    The `Supporting Information' document

  7. Covanta submitted a document called `Supporting Information' with the application providing information as to how the Site was to be operated.

  8. Paragraph 1.4.1.2 explained the proposed combustion process as follows:

    ``Combustion Bottom Ash and co-mingled metals, known as Incinerator Bottom Ash (IBA), will be discharged off the end of the incinerator grate into a water filled quench pit. The wet ash will then be transferred by conveyor to an ash storage bunker inside the waste incineration plant for safe and secure storage. The IBA will be approximately 60°C and have a moisture content of 15 to 25% when it leaves the quench bath. The composition of the IBA is expected to be similar to that from modern UK waste incineration facilities.

    Periodic sampling of the IBA will be carried out to ensure effective burn out is being achieved by testing for the Total Organic Carbon (TOC) in the residual ash.

    The IBA is expected to be transferred to the on-site IBA facility either by conveyor or truck for processing.''

  9. I was informed at the hearing that Covanta may decide to send the IBA off-site for processing, by truck, instead of setting up an on-site processing facility. The Permit covers both options.

  10. Section 2.3 described two separate water management systems: process water and surface water. Process water is water which is used in the operative processes of the facility, for example feeding the boiler, quenching the IBA post-incineration and it specifically includes surface-water run-off originating from the IBA facilities. Surface water is rainwater from buildings, roads etc. This claim is concerned with the potential contamination of surface water only.

  11. Paragraph 2.3.1 of the Supporting Information explained the surface water drainage system as follows:

    ``Surface water from the roofs of buildings at the Rookery South ERF will be collected in a rainwater storage tank for use within the IBA Quench System. In the event of imminent overflow of the storage tank, an outlet valve system will drain controlled quantities of water through an interceptor into the storm drains.

    All other surface water (roadways and areas of hardstanding) shall be collected in drains with oily water interceptors which will incorporate an isolating penstock valve installed on the discharge pipe. This water will then be discharged via an interceptor channel into an attenuation pond to be constructed as part of the Rookery Low Level Restoration drainage scheme. This pond will be located adjacent to the Rookery South ERF, in the north-west corner of the Installation.

    The discharge from the interceptors will be tested periodically to verify that it is not contaminated. The drainage system, interceptor and penstock valve will be subject to a planned maintenance regime.''

  12. Paragraph 2.3.3.1 described the approach to be taken in respect of spillage management for the surface water drainage system as follows:

    ``No material will be discharged on the internal road network which could potentially contaminate surface water run-off. Under normal operating conditions materials will be delivered to and from the waste incineration plant in dedicated transport vehicles by competent delivery drivers. Pollution prevention measures and strict operational controls will ensure that internal roadway rainwater run-off remains uncontaminated from process materials from the waste incineration plant. A trained member of Covanta's operational team will be in attendance during the delivery and off-loading of all chemicals and fuels.

    In an emergency condition, such as a spillage or vehicle accident, the surface water discharge penstock valves will be closed. Any spillage or leak on the road network will be isolated, retained and remediated locally following the waste incineration plant spill procedure. The penstock valve will retain all surface water run-off within the drainage system to prevent its release to the environment. The retained surface water run-off will be tested and transferred off-site to an appropriately permitted waste management facility. If necessary, the drainage system and interceptor will be emptied and cleaned prior to the penstock valve being opened to allow the discharge of uncontaminated rain water.''

  13. Paragraph 2.4.3 stated as follows:

    ``2.4.3 Emissions to water

    There will be no process emissions to water. Wastewaters from the process will be collected and re-utilized.

    All areas of hardstanding within the IBA will be profiled so that surface water run-off from areas subject to potential ash contamination is collected.

    Clean water such as rainwater from roofs will be collected in a rainwater storage tank and utilised within the waste incineration plant or IBA facility or released through an interceptor into the storm drains. Surface water from roadways and areas of hardstanding will pass through an oil/silt interceptor prior to being discharged into the Low Level Restoration Scheme (LLRS) attenuation pond.''

  14. Paragraph 2.4.4, headed ``Contaminated water'' provided for the safe containment of chemicals, and reporting procedures to be followed in the event of spillage. It also stated:

    ``Adequate quantities of spillage absorbent materials will be available onsite. These will be located at appropriate, accessible locations near to liquid storage areas. A site drainage plan which includes the locations of foul and surface water drains and interceptors will be made available onsite. Water interceptors will have penstock valves to prevent the discharge of contaminated surface water in case of an incident on site.''

  15. Paragraph 2.4.5 addressed the issue of ``Fugitive Emissions and IBA Storage''. This referred to accidental or unintended discharges of IBA outside the closed processing area, for example, spillages on the road during transportation by lorry, or dust escaping from the processing area. It provided as follows:

    ``Good housekeeping practices will be implemented to ensure that any IBA spillage that does occur is cleaned up at the earliest opportunity. Spill kits will be available for the cleanup of IBA spills as procedures in the Quality and Environmental Management System (EMS) require ash spills to be cleaned up promptly.

    Water released from the IBA will be also prevented from entering surface water drains through preventative maintenance, monitoring, housekeeping, and strict operational controls.

    Any heavy metals within the IBA will be present as salts. These salts will be retained in solution when mixed with water and would not be expected to dissolve. Metals would be retained in solution form if there was an IBA spill on the internal roadways or other areas of hardstanding. If the IBA were to enter the surface water drainage system, it would collect within the interceptors in the surface water drainage systems for the waste incineration plant. The interceptors are designed to prevent the discharge of suspended solids and oils and grease.''

    [Emphasis added]

  16. The passage underlined above contains the error upon which this claim is founded, as it was agreed before me that many heavy metals will dissolve when mixed with...

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