Leigh goes to court on IPC authorisations

The first legal challenge by a company regulated under integrated pollution control (IPC) has been launched by waste management business Leigh Environmental. Two key issues on which it wants the courts to rule are how much discretion HM Inspectorate of Pollution (HMIP) has in imposing upgrading deadlines, and whether companies should be forced to invest in improvements before they have had a chance to appeal to the Secretary of State.

Leigh's applications to the courts concern IPC authorisations issued by HMIP for four of its plants this spring. These are two clinical waste incinerators at Dudley and Four Ashes in the West Midlands, and a chemical waste incinerator and solvent recovery plant at Killamarash, Sheffield.

In each case Leigh is seeking leave for a judicial review of HMIP's decisions. As an interim step, it wants the courts to suspend the authorisations and issue an injunction restraining HMIP from enforcing them until a judicial review has been heard.

Leigh has already been granted leave to apply for a judicial review in the case of the Dudley incinerator. Leave has been refused in respect of the Killamarsh incinerator, but the company has now secured an oral hearing to consider this and its other two applications. The case is due to be heard in mid-November.

In each authorisation there are numerous points on which Leigh is unhappy with HMIP's decisions, but two major issues stand out.

Firstly, the company is claiming that HMIP has imposed conditions which are not in accordance with its own process guidance notes and are therefore "unreasonable, unfair and unlawful".

The guidance notes stipulate that operators should submit a programme, including a timetable, for upgrading existing processes no later than six months after receiving an authorisation. However, in Leigh's case HMIP imposed an up-grading timetable in the authorisations.

The company is particularly aggrieved that the deadlines it has been set are earlier than those in the relevant guidance notes. For example, its Dudley incinerator must be brought up to new plant standards by 1 April 1995, while its Four Ashes incinerator must be upgraded by 1 December 1993. In contrast, the guidance note on clinical waste incineration provides that existing processes must be upgraded by 1 December 1996 - although it should be noted that the precise wording is that upgrading should take place "at the earliest opportunity and no later than 1 December 1996."

The question here is clearly how much discretion HMIP has in imposing upgrading deadlines, and indeed to what extent it is bound by its own guidance. The Inspectorate would presumably argue that in the case of the two incinerators it judged that upgrading was possible before December 1996 without Leigh having to bear "excessive costs".

However, the argument on this point is bound up with a second important question. Leigh's legal submissions point out that the upgrading requirements imposed by HMIP in several cases oblige it to take action within the six-month period allowed for an appeal to the Secretary of State against the conditions in an authorisation, and that there are others which would have to implemented before the Secretary of State had given his decision - a process which would almost certainly take at least a year. If his verdict went against some or all of the authorisation conditions, the company would have wasted money in making the investments necessary to comply with the authorisations.

Section 15 of the Environmental Protection Act 1990 deals with appeals, both against authorisation conditions and the various enforcement notices available to HMIP.

Section 15(7) provides that a notice revoking an authorisation will not take effect until an appeal is determined. Conversely, section 15(8) says that an appeal against a variation, enforcement or prohibition notice will not have the effect of suspending the operation of the notice. However, the Act is silent on whether an appeal against authorisation conditions, as in Leigh's case, has the effect of suspending the authorisation until the Secretary of State has given his decision.

The point was addressed, though, during the Act's Committee stage in the House of Commons by David Trippier, the then Environment Minister and now an adviser to the waste management industry. "If an operator wishes to appeal against conditions," he said, "he must carry out the process in accordance with the authorisation that has been granted, pending the outcome of the appeal. However, an operator will be liable to prosecution...if he begins to operate the process, without complying with the conditions set in the authorisation, before the appeal is determined."

On the face of it that presentation appears to offer Leigh little hope of success. However, it might be inferred that Mr Trippier's comments, which referred to an operator "beginning" to operate a process, applied more to a new rather than an existing plant. The situation with existing processes is arguably different, and it is this point which Leigh may test if it succeeds in obtaining a judicial review.

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