The borough council’s head of environmental services made the decision to designate the Walleys Quarry landfill as a statutory nuisance recently, according to a report made to councillors yesterday evening. The smell has blighted the town for months. The move allows an abatement notice to be made under section 80 of the Environmental Protection Act 1990, though the council is aware that the operator, part of the Red Industries group, is likely to appeal against it.
Such an appeal would be considered by a local magistrates’ court. Any notices will have to be “precisely drafted” to ensure they survive it, says the note from the council’s executive management team. It adds that the council has “retained the services of a leading environmental QC to advise on the next steps and to ensure that any actions now taken are properly executed.” Who exactly is acting for the council has not been disclosed.
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Odour and landfill experts have been engaged to review emissions data, gas management procedures and whether best available techniques are being employed at the site. Residents of 25 specimen properties have also provided witness statements, says the council.
In further news, another legal challenge against the Environment Agency’s alleged failure to duly regulate the site will be heard on Friday. Campaigners Stop the Stink, which launched the challenge on behalf of a child with a serious lung condition only weeks ago, said it had been convened “extraordinarily fast”. The campaign has brought in a private investigations firm to gather evidence to support its aim of shutting down the landfill immediately.
The serving of abatement notices against sites regulated by national regulators is very rare. So far as ENDS is aware, the last time it was done was in 2008, against a dusty waste site in London, though it has been threatened more recently. Subsequent litigation clarified that councils do not need permission from the secretary of state to impose such notices, although it is required to prosecute if a notice is not met. Guidance on the rules for such ‘double jeopardy’ situations was published in 2010.
Potential refusal of permission would no doubt precipitate a political row with the council, which has a Conservative minority administration. It would also embarrass the Environment Agency.
Assuming that the firm is brought to court, the council believes that a fine of up to £3m could be obtained, plus a compensation order and prosecution cost.
The council agreed yesterday to allocate £1m to meet the costs of taking formal action, on the assumption that the head of environmental services pushes forward with the notice. It follows £50,000 being allocated in February to obtain specialist advice.
According to a letter sent to environment secretary George Eustice this week, the council has received more than 18,000 complaints about the landfill’s smell since January, while over 32,000 have been sent to the Environment Agency. It adds that concentrations of hydrogen sulphide (H2S) – which produces the smell of rotten eggs – are above the World Health Organization’s ‘annoyance’ level more than half of the time, “and never less than 10% of the time”.
Only last night, one local complained of “chemical smells” that get “right to the back of your throat” on Twitter. Another described it as “state sponsored torture”.
The letter asks Eustice to visit and experience it himself.
“That this problem exists at all is due to two issues – a landfill operator who has not run their site as it should have been run, and a regulator, in the form of the Environment Agency, who have taken their eye off the ball and allowed the operator to get away with it for too long. My residents are living with the consequences,” wrote council leader Simon Tagg. He has asked for funding to allow residents to escape the enduring stench for one weekend every six months, the cost of which is “beyond the resources of a small district council”. It would need a budget of around £525,000-£1m.
A separate report notes that complaints have decreased recently, reflecting a drop in H2S concentrations, though the pollution continues “to have a negative impact on residents”. This appears to be the result of more landfill gas being collected and the completion of additional capping.