The EA’s monitoring of the landfill site
14. Mrs A believes the EA needed to be more active in monitoring the site. She complains the EA failed to recognise how serious and frequent the odour problem was and said its monitoring should have made the operator do more to control, and prevent, odour problems.
15. We considered what The Environmental Permitting (England and Wales) Regulations 2016 say about monitoring sites once a permit has been issued. Section 34(2) says the EA ‘must make appropriate periodic inspections of regulated facilities.’ It does not give any more specific information about how monitoring should take place. We also considered The Landfill (England and Wales) Regulations 2002. Section 8 says site operators must undertake monitoring in line with the requirements of their permit, and report back to the EA. The site’s permit was issued in line with the standard requirements the EA sets in applicable permits, such as SR2010 No 12 – Treatment of waste to produce soil, soil substitutes and aggregate. It required the operator to provide the EA with annual and quarterly monitoring reports.
16. The EA reviews the reports it receives as a way of monitoring the site remotely, and we understand from the Environmental permitting: core guidance that the EA takes a risk-based approach to visiting sites. This means that sites that are well run or do not present a risk to the environment should receive minimal attendance, while those which are at greater risk of causing pollution should be attended more often. This is also in line with The Regulators Code, which also says regulators should take a risk-based approach to compliance.
17. The EA’s records show its officers visited the site at least once every three months from January 2018 onwards. There were occasions when it visited multiple times in a calendar month. The EA said its monitoring had been increased to look at problems such as the odour issues Mrs A raised in her complaint. The EA’s records show its regulatory activity correlates with the times when it was receiving odour reports of increasing severity, from Mrs A, and when its officers found there were issues with the landfill site’s management plan.
18. Not all the EA’s visits to the site were to assess or investigate odour problems. However, as part of those visits the EA had the opportunity to determine whether there was evidence of odour on the site, or in the immediate surroundings. The EA’s records show it considered what it needed to when deciding how to monitor the site. It met its responsibility, as set out in the relevant guidance, by responding to concerns about the operation at the site with increased monitoring and seeking to address specific concerns as part of that monitoring activity.
Mrs A’s request for night-time monitoring
19. Mrs A asked the EA to make a night-time site visit on 6 August 2018. She was initially told it would not be possible to have an officer do this, and on 17 August the EA wrote to say it had already determined there was an odour problem so assessing whether the problem was worse at night would not change its approach.
20. In September 2018, the EA requested a mobile air quality testing unit be installed, although that installation did not take place until a unit was available in February 2019. This unit monitored emissions between February and September 2019. It tested for methane, hydrogen sulfide, total suspended particulate (TSP), PM10 and PM2.5 (particulate matter 10 or 2.5 micrometres or less), nitrogen oxides and BTEX (benzene, toluene, ethylbenzene and xylene). Some tests took place every 5 minutes, others every 30 minutes, for 216 days.
21. We understand Mrs A was concerned this monitoring would not capture all odour related emissions from the site. The unit could not specifically monitor for odour, but a number of the gases it did monitor are commonly associated with odour problems. The EA explained it would focus on emissions which could affect human health. The unit tested for most of those emissions that The Air Quality Strategy describes as significantly toxic. This monitoring was also much more extensive than a visit by an EA officer could have been.
22. It took six months for the monitoring unit to be installed after Mrs A’s request for night-time monitoring was made in August 2018. As the EA noted on 17 August 2018, it had already recognised there was an odour problem so finding out more about this would be unlikely to alter what the EA knew about the situation or its approach to regulating the landfill site.
23. We think the decision that a night-time visit was not necessary reflects the circumstances at the time. The operator had been given a warning at the beginning of August due to a faulty gas engine not being repaired. There had been an increase in the EA monitoring activity prior to this because the EA recognised there was a problem from the reports it was receiving. The EA was already planning to follow that up, and the picture it had from site inspections and complaints in August reflected that the repair of the gas engine did improve odour control on the site. The five months it took for the monitoring unit to be installed does not appear to be a result of inaction by the EA, but because it has a limited number of such units and had to wait for one to become available.
24. We also recognise that staff operating outside normal working hours, and particularly at night, can be an operational challenge. We have not found anything in the relevant EA and DEFRA guidelines that suggests the evidence available to the EA should have prompted further consideration of a night-time visit in August 2018.
Permit breaches
25. Mrs A complains the EA has not recognised how significant the problem is and that it has not taken appropriate action where it found those permit breaches. It is clear from what she has told us, and her correspondence with the EA at the time of her complaint, that the odour problems were causing a lot of discomfort and worry, and she was hugely frustrated by their recurrence.
26. To understand what the EA was required to do as the regulator, we reviewed the landfill site’s permit. This acknowledges odour may still occur despite the controls put in place when it says: 'Emissions from the activities shall be free from odour at levels likely to cause pollution outside the site, as perceived by an authorised officer of the Environment Agency, unless the operator has used appropriate measures, including, but not limited to, those specified in any approved odour management plan, to prevent or where that is not practicable, to minimise, the odour.'
This means the EA should not treat odour reports as a permit breach unless they are substantiated by an EA officer, and unless the operator has failed to take action to control any odour problems. The EA’s officers need to make a judgement as to how severe the pollution is and whether it was avoidable, as well as considering if there is evidence the pollution is having an impact on people on the environment.
27. The EA’s records show it identified a permit breach due to odour problems on the following eight occasions:
· On 12 January 2018, it decided inappropriate work was being completed on previously sealed waste, and treated this as a permit breach for odour · On 11 July 2018, it found a gas engine was offline. It felt this was contributing to the odour problems and the operator had not taken sufficient action to put this right, so treated this as a permit breach and gave a warning to the operator · It also found not enough had been done to repair a gas engine on 1 August 2018, meaning that engine had been offline for most of the previous month. It treated this as a permit breach, noting it received a significant number of complaints from the public in July 2018 · On 10 February 2019, it found equipment on the site was inoperative. The EA officer treated this as a permit breach due to essential equipment not being used, and assessed the odour was sufficiently well controlled once equipment was operational · On 19 March 2019, an EA officer confirmed odour was present, as reported in complaints from the public, and found this was a result of site equipment being offline · On 7 May 2019, it investigated a number of reports and found a technical fault had stopped a key piece of equipment from working. This problem had not been detected or repaired for around 12-24 hours, so it treated this as a permit breach · On 31 August 2019, it recorded a permit breach as a substantial number of odour complaints had been made in the preceding month and it did not think the site operator was doing enough to prevent odour problems while a new gas well was being installed · On 30 September 2019, it recorded a permit breach as a result of avoidable delays in work on site, meaning odour was not sufficiently well controlled.
28. The EA assesses pollution incidents using the Common Incident Classification Scheme (CICS). The CICS category reflects how severe the impact of an incident is, and we understand Mrs A felt the EA’s categorisation did not reflect how serious the problems were. Under the CICS, a category 1 incident would reflect odour ‘causing a serious or widespread effect on human senses’ such as nausea or sickness, with 50 or more complaints. Category 2 would mean a ‘significant effect’ on human senses, such that 10 or more complainants have to change their behaviour to avoid odour. Category 3 would reflect a minimal effect, such that one or two complaints are made in a week.
29. Mrs A challenged the EA’s recording of category 3 breaches in a letter she sent on 8 July 2019. The EA’s records show it scored category 2 breaches in August and September 2019. This reflected that there had been avoidable odour problems when the landfill site operator had not acted quickly enough to install essential equipment. All other permit breaches were considered to be category 3.
30. We appreciate that for Mrs A, the ongoing, recurring odour problems made it difficult for her to enjoy her home in the way she wanted to. She also referred to a number of her neighbours sharing her concerns and making complaints. Within the framework of the CICS, the EA’s categorisations do appear to be reasonable and consistent with the evidence it was seeing, including the evidence that Mrs A shared with it.
31. Other than the eight instances above, the EA did not consider there were other points where the operator was breaching its permit. We understand this is because while there may have been odour it did not think this was avoidable and thought the operator’s odour management plan was sufficient to control this. Based on the evidence available to us, we do not think the EA made a mistake in reaching that view.
Enforcement action
32. Where the EA finds damaging, polluting activity that is covered by the various pieces of legislation that give it its powers, it can pursue enforcement action. Its records show it did not consider the type of enforcement action Mrs A was seeking to be appropriate as a result of the odour problems associated with the site.
33. We asked the EA why it did not think such enforcement action had been necessary. It said the activities it had taken such as, scoring permit breaches and asking for additional works to be done was enforcement action. It said the possibility of closing the site had been discussed with Mrs A, as she queried it, but it did not view this as an appropriate action as it did not have evidence pollution from the site was impacting on human health or damaging the environment.
34. The EA told us it believed the best approach had been to work with the operators to ensure the necessary equipment and infrastructure was in place for the site to operate with a minimal environmental impact. It said the environmental permitting work it had undertaken involved giving warnings and permit breaches at a number of points, which impacted on the site’s operation and also on the permit fees it was required to pay. The EA said this did represent enforcement action.
35. The environmental permitting system requires organisations to prevent pollution or, where that is not practicable, to minimise it. It is not always possible to prevent pollution entirely. Activities which carry a high risk of causing pollution or environmental damage must be monitored, and the EA requires steps to be taken to make sure the permitted activity has as little environmental impact as possible. This is in line with the permit requirements described in paragraph 26 above.
36. There have been numerous instances of odour problems over time, and we can fully appreciate this must have been deeply frustrating for Mrs A and the other people affected. No doubt they would just like the problem to be resolved for good. Unfortunately, it is inherent to the operation of a landfill site that there will be times when odour levels increase, even with appropriate systems in place to control it.
37. The EA makes enforcement decisions in the context of its Enforcement and Sanctions Policy. This says the EA should only consider enforcement action or impose sanctions where it needs to stop harmful pollution. The evidence we have seen shows the EA’s interventions do seem to have addressed temporary problems with emissions, which it thought were a result of management problems at the site. It has been able to remedy those problems with its monitoring of the site. The action it took was proportionate to the problems it was seeing and in line with the policy.
38. Mrs A also pointed to the long-term mental health impact of the odour problems. She explained this has been a source of stress and worry over a number of years. The relevant guidance, such as the CICS and The Landfill Directive, both indicate the EA should consider the psychological impact of odour. We can see there is evidence the EA has considered this in line with that guidance up to now, and the records show that consideration is reflected in its decision making. The impact the odour problems were having on Mrs A and other members of the public were the reason it required the site operator to improve the site, and why it assessed there were permit breaches in line with the CICS. We appreciate she felt the EA had an important role in stopping the odour problems but as the environmental regulator, the EA could not say a permitted activity should cause no pollution.
39. Having carefully considered all the evidence available to us, we have seen no indications of mistakes by the EA. As such, we have decided to not uphold this complaint.