A protest group in Bedfordshire has failed to obtain a judicial review into the granting of an environmental permit to Covanta, for its Energy Recovery Facility (ERF) in Rookery Pit, Bedford.
The protest group, Bedfordshire Against Covanta Incinerator (BACI), had claimed last month that the Environment Agency based its decision in January to grant the site a permit on an “erroneous” fact in relation to emissions. It went to court arguing that it should be allowed to have its concerns raised in a judicial review.
However, the court this week ruled that despite Covanta and the Environment Agency agreeing that part of the application was wrong, both denied that the Agency relied upon it when issuing the Permit, and the judge agreed.
BACI has said it will now be seeking legal advice with a view to a potential appeal, while Covanta said after the ruling that it is “pleased” with the result and is committed to being “a good neighbour”.
The ruling in favour of the Environment Agency was handed down on Tuesday, November 6, by Mrs Justice Lang at the Royal Courts of Justice in London. The case had attracted attention from a range of local councillors and MPs.
BACI’s claim centred on the fact that a mistake in the Environmental Permit application relating to “fugitive emissions” from Incinerator Bottom Ash (IBA), and the subsequent discharge of potentially harmful dissolved heavy metals into a nearby lake, which eventually feeds into the water stream.
Both Covanta and the Agency however also denied that there was a risk of unmonitored discharge of toxic dissolved heavy metals into the surface water drainage system.
Covanta obtained planning approval for the ERF at the site in 2011, and applied for an Environmental permit for the 585,000 tonne, non-hazardous waste facility in February 2017. (The project is now being undertaken jointly with Veolia).
The BACI claim was to do with surface water in particular which is from buildings, roads and other similar outlets.
The error was picked up when specifically talking about IBA spillage, for example spillages on the road during transportation by lorry.
“Good housekeeping practices will be implemented to ensure that any IBA spillage that does occur is cleaned up at the earliest opportunity,” the permit read.
Crucially, it added : “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.”
BACI had said that this was wrong, and therefore the decision to grant it should be subject to judiciary review.
However, the Agency said this was addressed in subsequent consultations.
The judge said when handing down her ruling that judicial review only lies where the regulator has erred in law, and said that this had “failed to be established”.
“I accept that the language used in the paragraph is confusing and scientifically inaccurate… but the author clearly states that the heavy metals will not dissolve. It is common ground that this is scientifically incorrect,” she said.
Mrs Lang added: “I am satisfied that the Defendant did not make the same mistake as Covanta. It is elementary science that heavy metals dissolve in water. The Defendant is the regulator, with wide experience of ERFs, and its officers have scientific expertise. I find it implausible that the Defendant would make this mistake.”
She concluded by saying that the error was therefore “immaterial”.
Covanta said in its response that these types of facilities have been “proven to be safe and widely regarded as the best solution for the treatment of waste that cannot be recycled”, before adding that it looks forward to working with the community.
It added: “Covanta is pleased with the court’s decision to uphold the UK Environment Agency’s issuance of the environmental permit for the Rookery project. EfW facilities like the Rookery South ERF, are critical in helping the UK achieve national landfill diversion and renewable energy targets.”
The full Covanta statement can be read here.
In a statement online, BACI said it will continue to “fight” the case for local residents, and labelled the ruling “contradictory”.
A spokesperson said: “In order to give residents the best possible opportunity to continue to fight this – we will be seeking legal advice regarding the viability of an Appeal against the decision.
“Our initial feelings are that the reasoning and judgment appears somewhat contradictory and there appears to be reliance on precedents set by other claims that need reviewing in the pollution threatened world we find ourselves in at the moment.”