Pollution Prevention & Control

The House of Lords has ruled on whether the environmental impact of a switch to partial burning of shredded used tyres as a fuel at the Cemex cement factory in Rugby was properly considered.

Cemex, previously regulated under IPC, applied for a PPC permit in 2001. As part of that application, they wished to replace some of their normal fuel (coal) with shredded tyres.

There was stiff local opposition, who feared harmful air emissions of particulates, despite assurances that the very high combustion temperatures and use of BAT filters would negate this.

Local objectors alleged that, in granting the permit, the EA had failed to consult adequately with the public before concluding that the plant would not cause significant pollution.

In particular, it was alleged that the EA’s in-house report assessing the air quality modelling data should have been consulted upon, but the court unanimously disagreed, and said that there HAD been proper consultation within the PPC rules – a conclusion that was enough to enable them to reject the appeal.

As an alternative (and by now academic) argument it was alleged that there had been a breach of EIA procedures. Whether there had turned on whether an application to change the fuel type could, of itself, amount to an Annex I “project” for EIA purposes.

On this point there was a split decision, with 3 of the 5 judges taking the view that it could only amount to a change or extension to a project, not a project in its own right.

Moreover, the majority view was that “enough information was given in the PPC application to satisfy the requirements of an EIA”, and that “to construe [the legislation] to require an environmental assessment in addition to a PPC application would not be purposive but pedantic”.

However, their Lordships recognised that this is an evolving area of the law and that the European Court might well reach a different conclusion.

(Indeed, the governing law is now different as a result of the changes to EIA introduced by the public participation Directive, according to which changes or extensions to Annex I projects can themselves be Annex I projects, whereas formerly a change or extension could only be considered under Annex II.)

For the full transcript, follow this link.

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