Assessing Significance for Point Sources

1. Assessing Significance for Point Sources The case of new EfW facilities Roger Barrowcliffe

2. Content EfW proposals – nature and character Planning and permitting – in harmony? Judging significance - examples Offsetting impacts through damage costs?

3. EfW proposals can be contentious…

4. ...and not just in my own backyard Clear Air Thinking

5. Possible issues for planning ‘Perception’ of harm to health Alignment with permitting process Effects on Natura 2000 sites Proximity to AQMAs

6. Planning and (or) Permitting PPS 23 – sorely missed? Planning and permitting should be done in parallel – but which one drives the plant design? Testing significance – are the two processes similar?

7. EA – H1 guidance ‘Process contributions can be considered insignificant if: • The long term process contribution is < 1% of the long term environmental standard; and • The short term process contribution is < 10% of the short term environmental standard.’ Based on a judgement that: ‘It is unlikely that emission at this level will make significant contribution to air quality, since process contributions will be small in comparison to background levels, even if a standard is exceeded.’

8. EA – further guidance ‘Where an emission cannot be screened out as insignificant as a PC…, it does not mean that it will be necessarily significant; detailed modelling of emissions should be carried out taking into account the state of the environment before the installation operates...’ (Decision document, Peel Energy at Trafford Boulevard, Manchester)

9. Peel Energy, Trafford

10. Peel Energy application – some facts Adjacent to Ship Canal and M60 Also adjacent to an AQMA Facility will burn 200,000 tpa of waste wood and SRF (generating 22.5 MWe) Stack height of 44 m Max annual average NO2 concentration = 0.69 µgm-3 (or 1.7% of EQS)

11. Peel Energy – the outcome Permit granted by the EA Planning consent granted by SoS following inquiry ‘the SoS sees no reason to disagree with the Inspector’s reasoning about NO2…He has taken into account the EA’s conclusion that the process contribution is 1.7% of the AQS at the worst affected receptor in the AQMA, This is only slightly above the insignificance level and so could not reasonably be considered significant taking likely modelling uncertainties into account.’

12. The case of Sita Cornwall

13. Goss Moor SAC – and the fritillary Clear Air Thinking

14. Impact on the SAC – acid deposition

15. Consent history and milestones April 2008. Planning application made by Sita Cornwall. March 2009. Planning permission refused by County Council April 2010. Planning inquiry 20 May 2011. SoS grants planning permission. Oct 2011. High Court upholds S228 appeal against planning lodged by Cornwall Waste Forum 29 March 2012. Court of Appeal allows SoS appeal. Planning permission validated. 10 July 2012. Supreme Court refuses application for leave to appeal.

16. Key points of legal dispute Is reliance on the ‘1% rule’ for insignificance legal? Who is the decision maker in respect of the Habitats Directive? (ie the competent authority) Were the emissions from the stack a planning matter, in light of the granting of a permit? Are the two systems duplicated or complementary?

17. Court of Appeal judgement Clear Air Thinking Invokes Gateshead MBC v SoS 1971: “It is not the job of the planning system to duplicate controls which are the statutory responsibility of other bodies… Nor should planning authorities substitute their own judgment on pollution control issues for that of the bodies with the relevant expertise and the responsibility for statutory control over those matters.” Decided that criticisms of the ‘1% rule’ were invalid on procedural grounds, not as a matter of law and fact. This issue is still open. However, it notes that no legal challenge to EA/NE guidance has ever been made.

18. Treasury/Defra guidance of abatement cost and damage valuation Clear Air Thinking

19. Applying the guidance Who is this guidance for? Govt, LAs and/or developers? ‘…it is important that the air quality impacts of any proposed policy, programme or project are understood and proportionately accounted for in appraisal and decision making.’ ‘Impact pathway approach’ Applies where total air quality impacts > £50 million ‘Abatement cost’, where legal obligations are breached

20. ‘Hypothetical example – a new MSW incineration plant’ Example cited is for a 180,000 tpa facility, in an AQMA declared for NO2. Uses NAEI to estimate an annual emission for NOx of 139 tonnes. Assumption is that all of this emission should be offset by abatement, given a cost of £4.1 million. Although (annual) damage cost is 139 x £955 from Green Book?

21. Some questions on this example Is it appropriate to consider offset abatement for a third party that might have a diffuse benefit over a wide area, in respect of a very localised EfW impact? Is this the best use of an investment anyway? Is NO2 the most damaging pollutant? Where does this leave the EA and permitting – in terms of BAT , for example?

22. Existing EfW facility at Belvedere – a useful example? Clear Air Thinking

23. Recap on the ‘impact pathway approach’ (for point sources) Who is it intended for? What is its legal status in planning? Does it help or hinder permitting? Are the damage costs given in the ‘Green Book’ appropriate? Is the ‘offset’ abatement cost approach valid – or desirable?

24. Closing thoughts Some point sources will always be contentious in the planning system Consequently, we need to have clear and accepted guidance on assessing significance Planning and permitting should be complementary processes The legal system is the ultimate test – but a difficult one for us to work with