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More PAIN for EA over Sherwood Forest incinerator permit

With the support of Friends of the Earth’s Right and Justice Team (and others who shall for the time being remain nameless), People Against Incineration (PAIN) has sent a letter before action to the Environment Agency warning them that if they don’t quash their Sherwood Forest incinerator permit within the next fortnight they face a judicial review.

PAIN argues that the EA failed to meet its legal obligations by failing to compare incineration with less polluting technologies before issuing an environmental permit.

Furthermore, the EA also failed to consider the consultation responses to the Environmental Statement (ES) that accompanied the planning application, despite relying on the ES to issue their permit.

Download PAIN letter to the Environment Agency [PDF]

Some legal bits (edited highlights):

In granting the PPC permit the Agency breached its duties under the Persistent Organic Pollutants Regulations 2007 (the “POPS Regulations”), failing to comply with Regulation 4(b) which requires the Agency to discharge the duty to give priority consideration to alternative processes, techniques or practices which avoid the formation and release of certain chemicals.

It is clear from the decision document that the Agency have failed entirely to carry out this priority consideration process as required under Article 6(3). Instead, the Agency only considered the narrow question of different techniques within the incineration process (see for example C7.2.2 at page 28 of the decision doc) and did not do so with reference to avoiding the production of POPs within Annex III. In failing to consider in the assessment the available alternative processes which would avoid the formation and release of Annex III pollutants entirely, the Agency breached its obligation under Regulation 4(b) of the POPS Regulations.

No information concerning any Environmental Impact Assessment for the installation was supplied by the Applicant in response to Question B5.1 in the PPC Application Form. However, during the determination period, the Environment Agency was provided with a copy of the planning application and environmental impact assessment by Nottinghamshire County Council. The Environment Agency reviewed the relevant aspects of the planning application and made comments as a statutory consultee to the planning application. The Agency has had regard to the relevant information obtained and considers that no additional or different conditions are necessary in light of the EIA. We have seen the Planning Committee Report and had regard to the council?s conclusions. The County Council resolved to grant planning permission subject to a legal agreement and referral to the Government Office for the East Midlands. The planning application has been called in by the Secretary of State.”

It appears therefore that the Agency had regard to the Environmental Statement submitted pursuant to Article 5 of the EIA Directive but not to the representations made by statutory consultees and the public on the Environmental Statement pursuant to Article 6. The Agency is asked to confirm that it did not consider those representations.

On the basis of the failure to comply with the POPS Regulations the permit was unlawfully issued. It follows that the permit should be quashed by the High Court. That is the standard response to an unlawful decision. Indeed, the Court is obliged to take this step under Article 10 of the EU Treaty. A prompt agreement to revoke the permit, or submission to judgement in this case would avoid the considerable costs (including to the public purse) and delay which would be caused by the Agency’s defence of their unlawful decision in judicial review proceedings.

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