" Ozone is also a greenhouse gas, so NO x and VOCs can be considered greenhouse gases" (c) The chemical reactions involved take a long time (from several hours into several days) and the ozone may persist for several days so that ozone measured at one location may actually have arisen from VOC or NOx emissions many hundreds or even thousands of kilometres away, and may then travel further for similar distances (220); (d) In NW Europe the problem is an international one (223) (e) It is intended that UK measures to reduce NO x and VOC emissions will have a significant impact on domestically generated ozone (233) . It follows from the above that the effects of NO x as a pollutant are not assessed adequately by local measurements, nor by measurements of NO x . As with all furnaces, what is emitted at the end depends upon what has been put in earlier on in the process, and what has happened to it. Thus, a plant fed by air (and therefore with nitrogen (N) and oxygen (O) as components of the input) will produce more oxides of nitrogen (NO x ) as a result of combustion (and therefore the oxidization of the nitrogen) than it will if it is fed by oxygen alone, and so on. But it is not simply a matter of the choice of fuel or the rate at which it enters the furnace. Other aspects of the design will also affect the rate at which substances are emitted and in what quantities. To give a simple example, the efficiency of combustion affects the presence of various substances in the exhaust gases. That is a function of several things, including the shape, size and configuration of the furnace. Then, once the emissions occur from the primary (furnace ) phase, then they pass through a secondary phase, where abatement of those primary emissions can occur through converters (catalytic and non-catalytic), scrubbers, introduction of other substances to the exhaust gases and other kinds of abatement technique. But equally obviously the level of (say) NO x that is emitted from the stack into air depends on both the choice and design of process (among other matters) in the primary phase, and the nature of the abatement provided in the secondary phase. When engineers design a plant of this type, they do not look at the two parts discretely, but look at the effects of one on the other in an iterative process until they have reached the appropriate overall design solution. But one cannot address the level of emissions into atmosphere without considering both phases. That important matter, which was accepted by all parties before me, coincides with my own experience at the bar of dealing with applications and permits relating to industrial and incineration processes . It is necessary then to observe that emissions can be measured in at least 3 ways (a) An amount of substance x will be emitted per unit of time – say x grams of NO x per second; (b) An amount of a substance will be emitted according to the amount of glass manufactured – say y grams of NOx per tonne of glass manufactured; (c) A proportion of the total emitted from the stack- say z mg per Nm 3 of exhaust volume (remembering always that the stack will be emitting so many Nm 3 per second) (NB the prefix N before m 3 stands for Normal pressure, so that comparisons can be made on a like for like basis) While there will no doubt often be a correlation, one must be careful in how one makes comparisons. A rate of x mg/Nm 3 from a furnace with a high total exhaust emission rate will generate more NO x in absolute terms than one emitting NO x at the same rate per Nm 3 but with a lower exhaust emission rate. Thus an emission of 1000 mg NOx per Nm 3 in a total exhaust gas emission rate of 3 Nm 3 /sec produces a much greater amount of NO x than 1000mg/Nm 3 in a total exhaust gas emission rate of 2 Nm 3 /sec. In fact, the parameter chosen, both for emissions control and for assessing air quality for Environmental Quality Standards, is of the amount of NO x per amount of air – i.e. x mg/Nm 3 . It follows that comparisons on the mg/Nm 3 basis represent the appropriate measure. It is also important to note that design can affect performance. Such a proposition sounds straightforward if applied to a motor car, but it is just as applicable to process design. Equally, changes in throughput can produce changes in the level of particular emissions. Much turns in this case on the distinction between 2 types of process (a) Cross fired regenerative (b) Oxyfuel The critical difference in NOx emission terms is that for the purposes of combustion the cross fired regenerative type uses air within the furnace, whereas oxyfuel furnaces use oxygen rather than air, thereby producing much fewer mg of NO x per Nm 3 . There are consequences to those differences, which I deal with below. The Application In Question and its consideration by Chester City Council. It is helpful at this stage to set out something of the history of this case, drawn from the chronology submitted by the claimant and from the exhibits lodged with the court: (NB the David Hosker referred to is the Environmental Health Officer at the Defendant responsible for investigating the application for an IPPC permit at the Plant and for advising the Defendant on its decision to issue the permit and the terms on which this should be done.) First Quinn Glass planning application made for site at Ince - for plant with three oxyfuel furnaces of 400 tonnes per day each May 2000 Amended Quinn Glass planning application made - for plant with two oxyfuel furnaces of 600 tonnes per day each August 2000 Meeting between Quinn and Chester where Quinn state desire to start building at start of 2004 and commence production in February 2005.23 October 2003 Application made by Quinn Glass for revised planning permission - for plant with two furnaces (no longer oxyfuel) and production lines increased from 8 to 13 lines12 December 2003 Principal construction activities start on site January 2004 Plant granted revised planning permission3 March 2004 Rockware Glass issue challenge to revised planning permission on the grounds that no Environmental Assessment carried out/submitted19 May 2004 Quinn's solicitor confirms that the plant is already programmed to open in 200528 June 2004 Revised planning permission quashed by consent (by Harrison J)22 July 2004 Further application made by Quinn Glass for revised planning permission, with new Environmental Statement On or around23 July 2004 Initial application for IPPC Permit made by Quinn Glass to Chester City Council10 August 2004 DLA Piper, Solicitors, write on behalf of Rockware Glass to seek call in by the First Secretary of State of the 2004 revised Quinn Glass planning application10 August 2004 Quinn Glass lodged amended application for IPPC Permit.15 October 2004 Meeting between Quinn and Chester (attended by Mr David Hosker and others) where change in furnace type discussed4 November 2004 Mr Hosker wrote to Quinn Glass indicating that their application did not comply with SG224 November 2004 Meeting between Quinn Glass and Mr Hosker and submission of revised NOx emission abatement proposals by Quinn Glass26 November 2004 Mr Hosker prepared a report to Chester City Council members on Quinn Glass' IPPC application. November 2004 Quinn confirms to Chester CC that it has "significant and confirmed trade orders" for produce from the site December 2004 Mr Hosker prepared a further report to Chester City Council members on Quinn Glass' IPPC application. February 2005 Report written for consideration by Chester CC by Brian Hughes, its Development Co-ordination Manager, i.e. the Planning Officer at the Defendant responsible for the Quinn planning application. February 2005 Mr Hosker meets Chief Executive of Chester CC (Mr Paul Durham), and permit is issued by Chief Executive2nd March 2005 Government Office for North West ( "
"ANNEX I CATEGORIES OF INDUSTRIAL ACTIVITIES REFERRED TO IN ARTICLE 1 1………… 2…………. 3. Mineral industry 3.1. Installations for the production of cement clinker in rotary kilns with a production capacity exceeding 500 tonnes per day or lime in rotary kilns with a production capacity exceeding 50 tonnes per day or in other furnaces with a production capacity exceeding 50 tonnes per day 3.2. Installations for the production of asbestos and the manufacture of asbestos-based products 3.3. Installations for the manufacture of glass including glass fibre with a melting capacity exceeding 20 tonnes per day 3.4. Installations for melting mineral substances including the production of mineral fibres with a melting capacity exceeding 20 tonnes per day 3.5. Installations for the manufacture of ceramic products by firing, in particular roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain, with a production capacity exceeding 75 tonnes per day, and/or with a kiln capacity exceeding 4 m³ and with a setting density per kiln exceeding 300 kg/m³ "
"ANNEX IV Considerations to be taken into account generally or in specific cases when determining best available techniques, as defined in Article 2 (11), bearing in mind the likely costs and benefits of a measure and the principles of precaution and prevention: 1. the use of low-waste technology; 2. the use of less hazardous substances; 3. the furthering of recovery and recycling of substances generated and used in the process and of waste, where appropriate; 4. comparable processes, facilities or methods of operation which have been tried with success on an industrial scale; 5. technological advances and changes in scientific knowledge and understanding; 6. the nature, effects and volume of the emissions concerned; 7. the commissioning dates for new or existing installations; 8. the length of time needed to introduce the best available technique; 9. the consumption and nature of raw materials (including water) used in the process and their energy efficiency; 10. the need to prevent or reduce to a minimum the overall impact of the emissions on the environment and the risks to it; 11. the need to prevent accidents and to minimize the consequences for the environment; 12. the information published by the Commission pursuant to Article 16 (2) or by international organizations."
"Article 10 Best available techniques and environmental quality standards Where an environmental quality standard requires stricter conditions than those achievable by the use of the best available techniques, additional measures shall in particular be required in the permit, without prejudice to other measures which might be taken to comply with environmental quality standards."
"best available techniques" (1) For the purpose of these Regulations, "best available techniques" means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole; and for the purpose of this definition— (a) "available techniques" means those techniques which have been developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the cost and advantages, whether or not the techniques are used or produced inside the United Kingdom, as long as they are reasonably accessible to the operator; (b) "best" means, in relation to techniques, the most effective in achieving a high general level of protection of the environment as a whole; (c) "techniques" includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned. (2) Schedule 2 shall have effect in relation to the determination of best available techniques."
"Table 1: Compliance requirements Upgrading Requirement Compliance Date NO x Abatement – Primary Techniques :As soon as reasonably practicable, which in most cases would normally be within 24 months of publication of the note. NO x Abatement – Secondary Techniques (Container glass)1 April 2009 "
"2.1 This section contains emission limits, mass release rates and other requirements that are judged for the generality of the activities within the sector to represent BAT. Contained emissions to air associated with the use of BAT 2.2 Guidance is given below on emission limits and other requirements which are achievable for key substances using the best combination of techniques. Table 3: Contained emissions to air associated with the use of BAT Source / Determinand Limit (mg/m3) Furnace 0perations NO x Annual average 500"
"Article 3 General principles governing the basic obligations of the operator Member States shall take the necessary measures to provide that the competent authorities ensure that installations are operated in such a way that: (a) all the appropriate preventive(sic) measures are taken against pollution, in particular through application of the best available techniques; (b) no significant pollution is caused"
"12.8 Availability: Where there is a choice, the technique that is best overall will be BAT unless it is not an 'available technique'. There are two key aspects to the availability test: a) what is the balance of costs and advantages? This means that a technique may be rejected as BAT if its costs would far outweigh its environmental benefits; and b) can the operator obtain the technique? This does not mean that the technique has to be in general use. It would only need to have been developed or proven as a pilot, provided that the industry could then confidently introduce it. Nor does there need to be a competitive market for it. It does not matter whether the technique is from outside the UK or even the EU."
"Whereas the objectives and principles of the Community's environment policy, as set out in Article 130r of the Treaty, consist in particular of preventing, reducing and as far as possible eliminating pollution by giving priority to intervention at source and ensuring prudent management of natural resources, in compliance with the 'polluter pays` principle and the principle of pollution prevention " (my italics) . I refer also to Recital 8 and Article 1. (d) The dangers of Mr Taylor's arguments can be seen from this case. A proposed ELV for NO x of 500mg/NM 3 in SG2 was not applied here from the outset, but instead there was applied an ELV of 1100 mg/NM 3 , reducing to 500 mg/NM 3 after 4 years. Mr Taylor seeks to draw comfort from the fact that the local EQS was not breached. By interpreting the Directive and Regulations narrowly so as to avoid comparison with other techniques, designs, configurations or sizes, by his arguments a more polluting choice of design/configuration is thus approved by pointing out that there is headroom below the EQS in terms of local air quality. In my judgement that is not what the code intended, and indeed is something it seeks to prevent. (e) I would also regard Mr Taylor's submissions, even if I judged them otherwise acceptable, as undermining a very important piece of the interlocking matrix of environmental policies. It will be recalled from an earlier passage in this judgement that NO x has both direct and indirect effects, and that the latter (the generation of ozone) are felt over great distances and are not adequately reflected by local measurements of air quality. It follows that downwards pressure on the generation of NO x is important in its own right, irrespective of local EQS readings. That coincides with what in my judgement is the true interpretation of the both the EU and domestic legislation. I therefore hold that when considering whether or not to grant or refuse a permit, a regulator must have regard to, but not be confined to the particular size, configuration, design or process proposed in the application for a permit. I am supported in my conclusion by the fact that Chester City Council, via Mr Hosker, CHESTER CC did examine other processes and techniques in its consideration of this application. Quinn also supported them in having done so. Indeed Quinn put material before Mr Hosker CHESTER in connection with its application in a paper purporting to have been produced by Glass Technology Services in 2005 which sought to compare the different types of process at a different furnace size ( 300 tonnes per day). Mr Hosker's evidence CHESTE is that he did consider other types of process, and in particular the oxyfuel process. It is inconceivable that either would have acted as they did had they understood the statutory code as preventing consideration of alternative approaches. If the code, as I have concluded it did and does when properly understood, required consideration of types of process, then it also required consideration of configuration, including the size of the proposed furnaces. The reasoning of Chester City Council The City Council's process of reasoning appears from the evidence of Messrs Hosker and Durham, subject to important qualifications which I outline below. As I shall describe below, there have been difficulties about establishing what documents Mr Hosker had before him. Fortunately, a solicitor from the claimant's solicitors DLA was allowed to inspect a file on 4 th March which is said to have been the file of information which Mr Hosker put before the Chief Executive on 2 nd March. The evidence shows that the following documentation was before Mr Hosker (a) The application for a permit and a copy of its advertisement in the London Gazette and in local newspapers. (b) A check list of steps to be taken, drawn up by an officer of Chester City Council. (c) Documents relating to objections of English Nature, later withdrawn relating to various local air quality issues as the would affect the Mersey Estuary SSSI, including NO x . They included a response from Quinn and a letter of 7 th February 2005. (d) Correspondence with the local sewerage authority about effluent and with the local Primary Care Trust , neither of which related to NO x . (e) Extracts from the October 2000 version of BREF. (f) A paper supplied to Chester City Council by Quinn, which purported to be a paper produced by "
" The only departure from SG2 was in relation to nitrogen dioxide emissions and it did achieve compliance with this after a period of time that seemed reasonable in the circumstances ." (my italics) I therefore hold that Mr Durham acted outside the scope of his authority in issuing the permit. Relationship to call in Mr Gordon QC contends that because Mr Durham's stated objective was to deal with the permit and the planning application at the same time (i.e. . he would consider the permit on 2 nd March 2005, and the Planning Committee would consider the planning application on 3 rd March 2005) that once he knew or had reason to know that the planning application was being called in, he should not have considered issuing the permit. As already noted there is nothing in the PPC Regulations which prevents a permit being issued before the planning permission is in existence. That being so, Mr Gordon QC was driven to argue that the basis for his challenge was that he had an objective which would fall away once the application had been called in. I have already found that Mr Durham and Mr Hosker did not know that the First Secretary of State had called in the planning application for determination by himself. That is now apparent from their statements, which I accept. (I should point out that until their statements were received, the timings of the fax sent from GONW made it appear that the City Council was aware of the call in before the meeting ) That being so, I confess to find that I am at a loss to understand how Mr Gordon QC puts his case. He argued rather halfheartedly that he was under a duty to check with GONW if the call in decision had been made. I do not understand how such a duty arises. In my judgement, the Chief Executive was entitled to treat the planning application as still for his Council to consider unless and until he was informed that it had been called in. I reject this ground of challenge. Whether Rockware have sufficient interest to seek or obtain judicial review I start by dealing with the authorities. Bysection 31(3) of the Supreme Court Act 1981 , the court shall not grant leave for the making of an application for judicial review " unless it considers that the applicant has a sufficient interest in the matter to which the application relates."
"..If a claimant has no sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest. As Sedley J said in R v Somerset County Council and ARC Southern Ltd, ex p Dixon [1997] Env LR 111, when considering the issue of standing, the court had to ensure that the claimant was not prompted by an ill-motive, and was not a mere busybody or a trouble-maker. Thus, if a claimant seeks to challenge a decision in which he has no private law interest, it is difficult to conceive of circumstances in which the court will accord him standing, even where there is a public interest in testing the lawfulness of the decision, if the claimant is acting out of ill-will or for some other improper purpose. It is an abuse of process to permit a claimant to bring a claim in such circumstances. If the real reason why a claimant wishes to challenge a decision in which, objectively, there is a public interest is not that he has a genuine concern about the decision, but some other reason, then that is material to the question whether he should be accorded standing."
"ANNEX I CATEGORIES OF INDUSTRIAL ACTIVITIES REFERRED TO IN ARTICLE 1 1………… 2…………. 3. Mineral industry 3.1. Installations for the production of cement clinker in rotary kilns with a production capacity exceeding 500 tonnes per day or lime in rotary kilns with a production capacity exceeding 50 tonnes per day or in other furnaces with a production capacity exceeding 50 tonnes per day 3.2. Installations for the production of asbestos and the manufacture of asbestos-based products 3.3. Installations for the manufacture of glass including glass fibre with a melting capacity exceeding 20 tonnes per day 3.4. Installations for melting mineral substances including the production of mineral fibres with a melting capacity exceeding 20 tonnes per day 3.5. Installations for the manufacture of ceramic products by firing, in particular roofing tiles, bricks, refractory bricks, tiles, stoneware or porcelain, with a production capacity exceeding 75 tonnes per day, and/or with a kiln capacity exceeding 4 m³ and with a setting density per kiln exceeding 300 kg/m³ "
"ANNEX IV Considerations to be taken into account generally or in specific cases when determining best available techniques, as defined in Article 2 (11), bearing in mind the likely costs and benefits of a measure and the principles of precaution and prevention: 1. the use of low-waste technology; 2. the use of less hazardous substances; 3. the furthering of recovery and recycling of substances generated and used in the process and of waste, where appropriate; 4. comparable processes, facilities or methods of operation which have been tried with success on an industrial scale; 5. technological advances and changes in scientific knowledge and understanding; 6. the nature, effects and volume of the emissions concerned; 7. the commissioning dates for new or existing installations; 8. the length of time needed to introduce the best available technique; 9. the consumption and nature of raw materials (including water) used in the process and their energy efficiency; 10. the need to prevent or reduce to a minimum the overall impact of the emissions on the environment and the risks to it; 11. the need to prevent accidents and to minimize the consequences for the environment; 12. the information published by the Commission pursuant to Article 16 (2) or by international organizations."
"Article 10 Best available techniques and environmental quality standards Where an environmental quality standard requires stricter conditions than those achievable by the use of the best available techniques, additional measures shall in particular be required in the permit, without prejudice to other measures which might be taken to comply with environmental quality standards."
"best available techniques" (1) For the purpose of these Regulations, "best available techniques" means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole; and for the purpose of this definition— (a) "available techniques" means those techniques which have been developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into consideration the cost and advantages, whether or not the techniques are used or produced inside the United Kingdom, as long as they are reasonably accessible to the operator; (b) "best" means, in relation to techniques, the most effective in achieving a high general level of protection of the environment as a whole; (c) "techniques" includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned. (2) Schedule 2 shall have effect in relation to the determination of best available techniques."
"Table 1: Compliance requirements Upgrading Requirement Compliance Date NO x Abatement – Primary Techniques :As soon as reasonably practicable, which in most cases would normally be within 24 months of publication of the note. NO x Abatement – Secondary Techniques (Container glass)1 April 2009 "
"2.1 This section contains emission limits, mass release rates and other requirements that are judged for the generality of the activities within the sector to represent BAT. Contained emissions to air associated with the use of BAT 2.2 Guidance is given below on emission limits and other requirements which are achievable for key substances using the best combination of techniques. Table 3: Contained emissions to air associated with the use of BAT Source / Determinand Limit (mg/m3) Furnace 0perations NO x Annual average 500"
"Article 3 General principles governing the basic obligations of the operator Member States shall take the necessary measures to provide that the competent authorities ensure that installations are operated in such a way that: (a) all the appropriate preventive(sic) measures are taken against pollution, in particular through application of the best available techniques; (b) no significant pollution is caused"
"12.8 Availability: Where there is a choice, the technique that is best overall will be BAT unless it is not an 'available technique'. There are two key aspects to the availability test: a) what is the balance of costs and advantages? This means that a technique may be rejected as BAT if its costs would far outweigh its environmental benefits; and b) can the operator obtain the technique? This does not mean that the technique has to be in general use. It would only need to have been developed or proven as a pilot, provided that the industry could then confidently introduce it. Nor does there need to be a competitive market for it. It does not matter whether the technique is from outside the UK or even the EU."
"..If a claimant has no sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest. As Sedley J said in R v Somerset County Council and ARC Southern Ltd, ex p Dixon [1997] Env LR 111, when considering the issue of standing, the court had to ensure that the claimant was not prompted by an ill-motive, and was not a mere busybody or a trouble-maker. Thus, if a claimant seeks to challenge a decision in which he has no private law interest, it is difficult to conceive of circumstances in which the court will accord him standing, even where there is a public interest in testing the lawfulness of the decision, if the claimant is acting out of ill-will or for some other improper purpose. It is an abuse of process to permit a claimant to bring a claim in such circumstances. If the real reason why a claimant wishes to challenge a decision in which, objectively, there is a public interest is not that he has a genuine concern about the decision, but some other reason, then that is material to the question whether he should be accorded standing."