In April 2017 the Environment Agency refused an environmental permit application in respect of a proposed facility at Avonmouth Docks. The facility would treat incinerator bottom ash (“IBA” – this is waste) to make incinerator bottom ash aggregates (“IBAA” - product). As there are not many permit refusals for facilities of this nature, coupled with the issues in question (which in our experience are increasingly in prominence), this refusal makes for interesting reading. It could also be useful in terms of future analogous permitting applications.
Under the Environmental Permitting (England and Wales) Regulations 2016, Day Group Limited applied for an environmental permit to treat up to 130,000 tonnes of IBA per annum. The IBA initially would be stored (in windrows) on site in a building with an open front and a vented ridge line (for gas management). A water suppression system would be used to prevent/manage dust emissions. Once treated via various plant and processes, the processed material (IBAA) would be stored outside in bays of up to 10,000 tonnes.
The site is located close to a number of sensitive receptors including housing (the closest of which is 50m away) and the Severn estuary. This estuary is a protected area (SSSI (site of special scientific interest), SAC (special area of conservation), SPA (special protection area) and Ramsar (convention on wetlands)).
The reasons given for the refusal were: "based on the information that has been provided to us we [Environment Agency] do not consider that the proposed method of operation would use the best available techniques [“BAT”] and we are not satisfied that the activities can be undertaken without resulting in an unacceptable risk of significant pollution of the environment due to dust and odour which will result in offence to human senses or impair/interfere with amenity and/or legitimate uses of the environment and be harmful to the quality of the environment. In addition it has not been shown that pollution will be prevented in the event of severe flooding at the site".
Our experience is that this is an issue which increasingly exercises the mind of the Environment Agency. Dust is both an amenity issue and a health issue (particularly in light of current awareness of health issues arising from the connection between poor air quality and PM10 and below). The Environment Agency was not satisfied by the control/management proposals of the applicant. In particular, the Environment Agency was expecting total enclosure of operations within buildings, with negative pressure, fast acting closing doors and abatement of vented air. Only this would amount to BAT in the Environment Agency’s opinion. In a sense the Environment Agency appeared to be looking for more and better infrastructure and hardware and less reliance on the more traditional forms of management which rely more heavily on less infrastructure and more human intervention and decision making, such as water suppression during dry periods and shut downs of operations if monitoring showed emissions above trigger levels.
We suspect that the Environment Agency may not have made the same decision 10 years ago but experience, techniques and expectations increase over time and the Environment Agency must have regard to this. Indeed the Environment Agency had given notice to the sector of its thinking in this regard when it shared in July 2016 a draft amended guidance on this subject.
The very close proximity of housing made potential odour emissions an issue. Interestingly both parties appeared to suggest that the other was being inconsistent in their respective deliberations over the potential for odour. The parties were far apart in terms of odour control with the Environment Agency looking for containment and the applicant looking at more traditional methods of risk management. The applicant did not produce an odour management plan which appeared to be an influential factor in the Environment Agency’s refusal.
One management aspect which the applicant had suggested (and about which the parties could not agree) was a suppression system coupled with a neutralising agent. Bearing in mind that such systems are employed at many other permitted facilities (not just IBA facilities), and that operators often are criticised and scored against by the Environment Agency when such systems are not in operation, the following statement in the Environment Agency's Decision Document makes interesting reading from this wider perspective: "They [neutralising sprays] do not prevent or minimise the odour itself. Neutralising sprays are not usually an effective method for odour control and in fact can in some cases make odour issues worse if there is an odour associated with the agent itself”.
This was another issue about which the parties could not agree. The site is located in a flood zone and on the Severn Estuary (a sensitive site - see above). Various risk management flood metrics (such as 1:200 year, 1:1000 year flood events) were discussed by the parties and to what depth the site might flood. That the site was at risk of flooding, and that IBA/IBBA would be washed offsite in such a flood event, did not appear to be disputed. What was not agreed was the pollution hazard in the event of flooding. The Environment Agency took the position that it was not convinced that the pollution would not be significant. Taking into account climate change the Environment Agency was looking to the applicant for (but did not receive) an assessment of the risk over the next 60 years and what control measures would be in place.
There were other issues which would have remained to be resolved if the application had proceeded (including noise management, emissions to sewer and ground conditions).
In coming to its decision the Environment Agency referred to its duty to have regard to the desirability of promoting economic growth (Section 108 of the Deregulation Act 2015). This growth duty is relatively new and is yet to be tested in terms of environment protection. In this particular instance the Environment Agency saw no conflict between economic growth and protection of the environment. The Environment Agency was comfortable that its decision was directed at achieving the required legislative standards (which the growth duty is not intended to undermine), was reasonable and necessary to avoid a risk of an unacceptable level of pollution, and that the standards which it applied were consistent with the standards applied to other applications in similar settings in this sector.
This permit refusal is very interesting in a number of respects. The tension between economic interests and protection of the environment is always present in developments of this nature but here we can see a particular sustainability tension, namely that between risk management techniques. The applicant appears to have sought to maintain more traditional methods whereas the Environment Agency has moved on and was not satisfied by these. There are interesting parts of this application and refusal, not only for analogous permit applications but also for the operation and continued permitting of existing permitted facilities.