Grant of environmental permit for energy recovery site upheld despite error

The claimant in Baci Bedfordshire Ltd, R (on the application of) v Environment Agency & Anor [2018] EWHC 2962 was an action group comprised of interested local residents who, along with others, objected to Covanta's application for the permit for the site at Rookery Pit, Stewartby, when it was made.

The claimant's sole ground of challenge was that the Environment Agency 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.

Both the Environment Agency and Covanta conceded the error by Covanta, but denied that the defendant regulator 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.

Mrs Justice Lang found in favour of the Environment Agency and Covanta. She said: “My conclusion is that, even though Covanta made a factual and scientific error in its application, the defendant did not adopt it when making its decision. It follows that the error was immaterial.”

She added that in her judgment it was “impossible to characterise the defendant's assessment as irrational, or based on incorrect science”.

Commenting on the ruling, Covanta said it was pleased with the court’s decision to uphold the UK Environment Agency’s issuance of the environmental permit for the Rookery project.

It said: “Energy-from-Waste (EfW) facilities like the Rookery South Energy Recovery Facility, are critical in helping the UK achieve national landfill diversion and renewable energy targets. EfW facilities are proven to be safe and widely regarded as the best solution for the treatment of waste that cannot be recycled.

“We are committed to being a good neighbour and look forward to building a strong, transparent relationship with the Bedfordshire community.”