Out-Law News 2 min. read
31 Jan 2013, 9:32 am
The regulator's Biowaste Sector Performance report (22-page / 592KB PDF) demonstrated a "worrying trend", according to environmental law expert Simon Colvin of Pinsent Masons, the law firm behind Out-Law.com. The report also showed that odour has led to an increase in 'serious' pollution incidents in the sector, up to 38 from 11 in 2010.
"The current approach to waste management means that often operations are concentrated and that due to segregation and pre-treatment, waste streams are becoming more odorous," Colvin said. "When you then put these operations in close proximity to other businesses and residential areas, you have a near perfect storm."
According to the report, there were 854 permit breaches in 2011, committed by 149 of the 730 permitted biowaste sites in England and Wales. 29%, or 251, of these breaches fell into the 'amenity' category, of which 83%, or 209, were due to odour. 'General management' failures were the second most common type of permit breach, accounting for 28% of the total.
About a quarter of biowaste permits in England and Wales are held by large companies or those with a large parent company, according to the Environment Agency. However the majority of sites are operated by smaller companies.
The report said that biowaste sites accounted for the second largest group of permitted sites of high public interest, which are sites identified as such by the regulator due to the level of environmental, legal or political interest they generate. The Environment Agency tends to use its statutory discretion to consult more than usual on decisions involving these sites, according to guidance (15-page / 100KB PDF) on its website. Odour was the "primary concern" at 27 of the 24 biowaste sites considered to be high public interest, the majority of which were composting sites, according to the report.
Although the figures showed the extent of regulator action with regards to odour, Simon Colvin said that it was often easier for local residents and businesses to bring claims against operators for nuisance in the courts than for the Environment Agency to take enforcement action those companies. He cited a number of recent High Court cases involving companies including Norton Aluminium and Biffa. In the latter case, the Court Appeal overturned the High Court's decision that Biffa had "implied statutory immunity" against claims relating to odours in March last year.
"It is often easier for local residents and businesses to bring nuisance claims, because in simple terms the thresholds relating to nuisance claims are lower than those relating to enforcement action by the Environment Agency," he said. "The process is also more efficient with the advent of group litigation orders and 'no win/no fee' funding arrangements. The availability of injunctions in certain instances is also a very powerful tool."
"Those in the waste sector need to be mindful of the risks that result from fugitive odour emissions. Operators need to consider the steps they can take to limit the risk of third party claims and damaging injunctions. There are a number of simple steps that operators can take to mitigate these risks, including proactive engagement with local communities and the introduction of procedures that ensure they retain control of their activities," he said.
The report also summarised actions to be taken by the Environment Agency to improve compliance in the biowaste sector. These included work with trade associations to improve standards and best practice, improving its own advice and guidance and developing "sector focussed" staff. Facilities with a record of poor compliance could also be given 'action plans' for improvement or face having their permits revised, it said.
