Agenda item

 

To consider a petition received calling on the Council to take enforcement action against the reopening of Droppingwell Landfill.

Consideration was given to a petition, “Enforcement Action Needed Now By Rotherham MBC Against Reopening Droppingwell Landfill” which had 1,563 valid signatures under the Council’s petition scheme.

 

Lead Petitioner, Mr. Steve McKenna from the Droppingwell Action Group (DAG), addressed the meeting to introduce the petition and set out the concerns of residents in Kimberworth regarding the landfill site.  Supporting information was also provided to familiarise the Overview and Scrutiny Management Board (OSMB) with the site and access routes and in relation to specific issues with regard to levels of contamination, location of boreholes for water sampling and unsupervised HGV manoeuvres in narrow residential roads.

 

Unofficially, tipping commenced on the site in the 1920s but it was 1958 when planning permission was granted by Rotherham MBC.  Phase 1 was the original landfill and Phase 2 where proposed new tipping would take place, governed by the 1958 permission and its regulations.  Problems had developed over time in relation to the permit due to regulatory and legislative changes, with a view expressed that this had been compounded by poor oversight and administration and unwillingness for enforcement in relation to planning permission compliance.  An application to extend the site in the 1990s led to various objections at that time which were felt to be equally applicable in 2020. 

 

Various concerns raised related to the access road to the site, including that no time limit had been imposed on hours for the operator.  Access was via a small lane off Droppingwell Road. with poor visibility on a bend.  Lorries came up Droppingwell Road rather than the A629 Wortley Road, which led to manoeuvres in narrow residential areas.  The access road also led to a walking area and to Millmoor Juniors Football Academy, with hundreds of spectators watching football tournaments on Saturdays.  Close proximity of HGVs, LGVs and pedestrians on the road, which was the responsibility of the Council, was a major concern.  There was also a reduced turning circle for vehicles as park users parked their cars at the beginning of the access road in front of ornamental gates installed by Millmoor Juniors Football Academy

 

Concerns were also raised about the distribution of waste on the site as Phase 1 had been over-tipped by 15’ and with some steep areas and sites of an un-engineered quality residents were fearful that any sideloading could burst the current site.  Sampling evidence from 1990 showed Phase 1 contained cyanide, asbestos and concentrations of heavy metals above trigger levels, none of which were biodegradable.  Plans to strip vegetation from Phase 1 had provoked fears about disturbance and releasing toxic materials.

 

Requirements for the operator were in place for ground water testing from five boreholes and the DAG believed samples had been submitted during 2019 from a borehole that had previously been filled in.  The group had written to the Environment Agency (EA) on this matter and expected a response within their standard 21 days response time, which would expire on 5th February 2020.

 

The Chair thanked Mr. McKenna for his detailed presentation.

Questions to lead petitioner

 

Although a lot of factual data had been provided, Mr McKenna was asked to summarise the likely impact on the day to day lives of local residents, Millmoor Juniors and local schools.  If it went ahead, perhaps up to 90 lorry movements each day were anticipated and whichever way lorries came in they would pass a school, potentially adding to issues for children going to school and to traffic.  Regarding Millmoor Juniors, although they mainly played football matches on Saturday afternoons, the operator working hours were up until 4:30pm on Saturdays.  In order not to block Droppingwell Road spectators tended to park on the narrow lane so there would be problems with access in and out but the real issue would be the dangerous proximity of lorries driving past hundreds of children playing football or going to the pitches.  There was a lack of trust in the site operator from the community and no guarantees had been provided regarding weight limits for Droppingwell Road in mitigation.  Stripping vegetation from the north face of the tip included mature trees not just shrubs and as the site was mainly shale that had collapsed once, the fear was it would collapse again and expose toxic materials.

 

The Chair inquired as to whether the group had sought its own legal position on the issues.  The DAG felt frustrated by Rotherham MBC who had had a legal opinion the DAG understood to be favourable; therefore their expectation was for the Council to take matters forward.  The DAG had eventually sought their own legal opinion but questioned why a group of residents should have to take on the Council in order for the Council to take on the EA.

 

Response from the Cabinet Member for Waste, Roads and Community Safety

 

Cllr Hoddinott introduced the officers from the Council and the EA and welcomed the opportunity to discuss the issue with experts from all relevant areas present – legal, enforcement, planning and environmental.

 

In setting the context the Cabinet Member acknowledged the involvement of Keppel Ward councillors from the start and the common concerns shared by all regarding the permit.  As stated there had been no formal planning permission until 1958 and the nature of that permission had led to issues regarding enforcement.  In 1989 a planning application was refused by the Council and turned down on appeal by the Planning Inspector so the 1958 permission still applied.  Tipping ceased in 1996 and the granting of the 2016 environmental permit was surprising given the lack of engagement with the Local Authority or residents when concerns should have been discussed beforehand.  The overall Council position was clearly against tipping on the site as evidenced by the Council motion passed unanimously in 2017.  Officers had been charged with looking into risks to surrounding land, the environment and the public.  The EA had also been clearly apprised of the Council’s position against the permit. 

 

The Council had only limited powers as it was an EA permit and because the 1958 planning permission included nothing in respect of opening hours, transport and restoration of the site.  The key issue was that no-one else in the country was working to something so old; this was unique so there was a case to be made.

 

Planning issues, public rights of way and the access road (which did come under the LA) were being considered and reference had been made by the public to Millmoor Juniors at the last Council meeting.  Public consultation was needed regarding the road to make it safer and it was incumbent on RMBC to do it. 

 

In November 2019 a letter had been sent to the Secretary of State for Housing, Communities and Local Government to raise the various concerns as he could intervene and stop it going ahead.  The Council was yet to receive a reply but would pursue this.

 

Council officers endorsed the concerns expressed regarding toxicity and any potential disturbance to the site.  Assurances would be sought from the EA and from the operator about anything happening on the site.  Regarding enforcement, the LA needed due cause to intervene and undertake independent analyses on site and the position remained unchanged since 1996 regarding risk.  The EA was the regulatory body and at present there was no cause to step in.  Access had to be provided by the LA who had written to the operator and asked for mitigating proposals regarding risk on the road.  The historic planning permission from 1958 had been accompanied by a waste management licence which covered some of the matters that would be included within a more recent planning permission, which was where the gap lay.  Permission was still live to allow Phase 2 with no new planning application required.

 

The EA clarified that the permit for the site was not new but had evolved from the waste management licence since 1978.  The difference was the legislation, as when the operator wished to vary activity on site this enabled the EA to update a permit to incorporate more modern conditions, thus regulation would be to a higher current day standard than the old one.  The new area of tipping would be under new modern conditions.

 

In relation to other points already raised the EA provided the following detail:

 

-   Inspection frequency – As a minimum once per annum for all sites but inspections were undertaken based on risk and if there were concerns the frequency could be increased.  Some sites would only be visited annually and others could be monthly depending on how they were operating when inspected.  Concerns raised by the Council would lead to an inspection.

 

-   Regulation – This was not all site based as the EA did have information submitted and would then analyse this and speak to the operator, in addition to consulting with their own in-house experts.

 

-   Groundwater samples – The EA were aware of the DAG’s letter and had contacted the operator with a view to meeting so the operator could talk through the monitoring data and show the EA physically and verify if it tied in with the data.  If not this would lead to action.  Background monitoring would identify potential contaminants and set the base line.  Audits would be undertaken and the findings shared including around the borehole that was potentially no longer there.

 

-   Phase 1 potential disturbance - Part of the submission was that there would not be any disturbance as the operator would only be clearing vegetation to ground level not digging out any trees.  A clay type cap would go on before any waste was put in there and engineering experts would inspect the site to check work had been done properly.  The operator was obliged to have an independent engineer on site at all times who would report back to the EA, providing assurance that work had been carried out properly.

 

The Cabinet Member confirmed that as issues came in from the public they would continue to be investigated.  Action was being taken on the turning circle and physical barriers would be installed on the access road in mid-February.  It was the first time the water level data had been seen and officers would look into that.  Information from the public was invaluable.

 

Questions from Lead Petitioner

Mr McKenna reiterated the point about the borehole having been filled in and asked the EA what the consequences might be in the case of possible falsification and if this could lead to revocation of the permit.  The EA were unable to comment on potential enforcement action because it could entail legal proceedings but the matter would be investigated if the data was from non-existent boreholes.

 

Confirmation was sought that the EA would meet the 21 day standard and respond by 5 February 2020 so that the DAG would have the findings.  No guarantee could be given that the EA would reply within 21 days as they might request an extension for a further 21 days to ensure things were investigated properly if needed.  At present no tipping was happening on the site and there would be no land filling until resolution was achieved on this matter.

 

In terms of landscaping, Mr McKenna inquired how the landscaping would be undertaken by the operator given that Phase 2 could not reach the height of Phase 1.  An amendment in 1994 applied only to increasing the height of Phase 1, with Phase 2 the original height as from 1958.  Officers confirmed the site would be stepped rather than levelled to the same height.

 

Questions from OSMB

 

Members probed more deeply into a number of the issues raised and sought clarification from the EA about operational and regulatory matters in connection with the site.  Clarity was also sought on the legal position of the Council.

 

Lobbying the Secretary of State

In light of the lack of response from the Secretary of State Members asked if there was there a strategy to get him to listen, including some of the information presented at the meeting and how pressure could be exerted.  The Cabinet Member confirmed that this was being pursued and the Council would continue to put pressure on.  It was hoped that the MP for Rother Valley would meet with the Secretary of State.  Other ways would be considered such as going to London to make the case, including working closely with Keppel ward members in particular.  A recommendation was suggested that Cabinet continued to lobby the Secretary of State to ask him to look at the legislative framework and how this site operated.

 

Risk level on the site and inspection frequency

As the EA had confirmed the frequency of visits was based on risks, Members explored the risk level of the site.  The EA stated that the new part of the landfill site would be inert, for example taking stones, bricks and rubble.  Therefore, it should not be a high-risk site, unlike a traditional landfill, it should be lower risk. The site would do waste acceptance testing which the EA could ask to see.  In terms of the more frequent inspections, that was in response to public concerns to help give reassurance to residents.  If the site was operating in accordance with the permit then inspections would be undertaken with reduced frequency or could be stepped back up if necessary if issues were found.  During engineering work the EA would go more frequently to ensure the base was done correctly as this was only done once.

 

Publication of data

A subsequent query was whether the EA published its data and findings so that the public and Councillors would be able to find the information.  EA inspection visits were usually unannounced and officers would produce a Compliance Assessment Report, which included sampling data and operator submission.  This was public register information and although not published on the EA website could be provided on request.

 

Classification of the site

EA officers confirmed that it would be an inert site with no biodegradation of the materials, resulting in no impact from a gases or groundwater perspective.  A formal definition of an inert site was read out.  It was confirmed that there would be construction and demolition waste but no asbestos waste. 

 

With the lack of certainty over what went in Phase 1 it was queried whether it be classed as hazardous but stable.  A minor slippage occurred a few years ago that had not exposed significant volumes of waste and the EA confirmed its objective to ensure it remained capped safely.

 

Waste acceptance and testing

Members sought guarantees that no asbestos waste would be dumped.  It was confirmed by the EA that procedures in the permit required the operator to undertake a waste acceptance procedure which included characterisation of the materials, to ascertain their origin and ensure suitability in line with landfill regulations.

 

The Chair asked the EA to clarify the process for a business wishing to dump waste on the site.  The business would need to approach the site and give the characterisation of the waste, which was simple if it was from a clean source.  If it came from a place with asbestos the operator should ensure full testing criteria and if it contained asbestos would not be allowed in

 

Permit

As the site had an old planning permission and an old permit Members queried how the permit had been updated and how the new one would be different including the options open to the EA at the time of the application for a revised permit.  The EA listed various legislative changes over a number of years which had led to variations/modifications to the permit until site closure.  The 2001 EU landfill directive led to more stringency on what could be deposited and new standards prohibited co-disposal of materials.  This led to separation and classification of sites as hazardous, non-hazardous or inert with tight standards in relation to the permit.

 

The EA could update permits at any time they saw fit but on this site in 2015 the operator had applied to vary their existing permit under the requirements.  The EA could only revoke a permit if there was sufficient evidence of significant environmental harm, which they did not have.

 

Probing more deeply into this issue, Members asked if investigations had been carried out before granting the updated permit as concerns remained about what was there and might be disturbed.  For the new permit there would be no need to touch phase 1 other than adjacent to the face on the northern side to ensure containment of cell 2.  This would be a geological barrier i.e. a clay barrier which had to meet a defined specification regarding permeability.  When the application came in the EA had considered the environmental impact for all aspects, including environmental risk assessments for ground water, amenities and surface emissions.

 

The position of the Council and Members had been made clear, so the EA were asked if there were any other possible actions at this point, or if the EA would face legal ramifications if it stopped it from going ahead.  Regarding the permit, the EA were clear that at present there were no legal reasons for revocation but the operator needed to carry out the pre-operational work on site which would be regulated.

 

Water samples

Members asked for more detail on where water samples were taken from and if this included water courses below the tip.  There was concern that leaks from other landfill sites had led to work and cost for the Local Authority and if the EA would bear the cost if such a situation arose on this site.  In line with regulations, which stated that there should be no discernible impact on groundwater outside the site boundary, samples were taken external to the site rather than in the site.  Samples were taken up gradient and down gradient with analysis between the two to see if any discernible impact was present.  Phase 1 was set up with infiltration so that over time anything would flush away without having an environmental impact.  In contrast new sites had to have a geological barrier so that would not happen now. 

 

Given the issues raised around the water samples, the EA were asked what they would do regarding the figures if these were found to be fraudulent.  The EA had written to the operator and planned to be there to audit the next round of environmental monitoring, to ensure the boreholes were there and to address the concerns raised by the DAG.  This would also be to ensure requirements around purging were met so a representative sample was obtained.  The EA did have an enforcement policy.

 

Monitoring Phase 1

Members stressed the importance of continued monitoring of Phase 1 due to the concerns regarding what actually went in there.  For the new permit the footprint covered the full site and the EA had required additional work on the old area to put in waste gas boreholes as well as the groundwater monitoring.  In terms of inspections, it would be monitored as it was still part of the permit to ensure no issues emerged regarding stability.  A suggested recommendation was for monitoring information and data to be readily available and to include checks for any chance of disturbance in Phase 1.

 

Risk assessments

Assurance was sought on how the risk assessment had been developed for phase 2 if the EA had not really monitored phase 1 and what could be in there.  There had been some investigatory samples and boreholes taken from the site and the EA did not dispute that materials within the site could contain possible hazardous substances and would need to look at the analysis.  Samples had been taken and anything could have gone in there as it dated back to the 1920s when no regulation was in place.  The EA reiterated that as there was no intention to disturb Phase 1 the agency did not believe there was any further risk from that site.

 

Ground disturbance

Reassurance was requested regarding the any chance of disturbance to the ground as tipping commenced on phase 2.  A stability risk assessment had been undertaken for the sub-grid against Phase 1 and putting in the geological barrier was well within the limits, so it was believed by the EA that no further risk of failure existed on that site.

 

Members sought confirmation that apart from the impact on wildlife there was no chance of disturbance when the shrubs and trees were cut down on Phase 1 and asked what action the EA would take in the case of disturbance resulting in a leak.  The EA declared that they could not give a cast iron guarantee but procedures were in place to ensure risks associated with that work were kept to a minimum.  If an emergency response was required in the case of a slippage this would be remedial action from the operator with immediate effect to ensure no risk to the environment or of pollution.

 

Independent engineer on site

A further concern was the fact that the operator undertook the monitoring and also selected the independent engineer, who ideally should be someone totally independent.  The engineer would be chosen by the operator but the EA would validate their credentials as specific standards were needed to be able to oversee that work.  The criterion was within the EA guidance and a condition in the permit that all work was inspected and approved as part of a CQA validation.  The report was checked and the EA would not approve it and grant authorisation if they were unhappy but it was a qualified third party engineer who oversaw the work.

 

Planning

The Chair sought confirmation that due processes around planning and legislation had been followed and the Council advised accordingly.  The planning application had been legitimately considered in the 1950s and granted, with an amendment that went through due process.  The legitimacy of whether the permission was still in place had been considered by the Planning Inspectorate and the issues this had caused had been raised with the Secretary of State.

 

After seeing the photograph of the HGV reversing, OSMB asked if anything could be done under planning in terms of signage or with regard to air pollution.  Under planning nothing regarding vehicle movements as under the existing 1958 permit there were no restrictions, however there were laws regarding vehicle movements.  The operator had been asked for proposals to mitigate risk on the access road.  It had been very concerning to see the photo and the Health and Safety Executive (HSE) would not view it positively to see HGVs undertaking three point turns in a residential area with no-one to see them reversing back.  Any further such information would be useful to share with the HSE.

 

Financial provision

Following up in the case of a slippage, which would be the responsibility of the operator to clear up and make safe, Members queried if the operator would have the financial means to do so and if not whether the EA would step in.  The EA would want to see the operator’s proposal for remediation to make sure it met specific standards and would not cause environmental pollution.  Financial checks were made on companies and there was financial provision for that site that could only be brought in in case of serious risk of pollution.  Usually the EA would work with the operator to ensure reasonable timescales for remedial action were put in place.

 

Operator

Members checked what would happen if any data revealed unethical behaviour on the part of the operator, with the assumption they had to be a “fit and proper person” to have a permit.  That would depend on the outcome of any investigation and if that led to prosecution there would be a post-conviction assessment.  Technical capability to run the site would be looked at and if not substantiated someone else would be brought in to run it.  There had to be a technically competent manager on site with certain validated external qualifications who was capable of managing the facility.

Consultation

Regarding the lack of consultation Cllr Hoddinott agreed this was a concern but reported that the EA had informed the Council that this would not have fundamentally changed what happened.  It was a unique situation as the environmental permit only looked at certain things and it should have had planning permission which looked at other aspects but did not have it.  It was restated that this particular case needed special intervention from the top as the regulatory framework was not good enough to address the concerns.  Full assurance was needed that things would be done properly this time.

 

Legal position

The Chair inquired whether it was the role of the local authority to take forward legal challenges in respect of this issue.  In terms of a legal challenge against another local authority or another publicly funded authority the public interest test would not be met and in those circumstances the Council would be advised not to take action.  Any other legal advice given would be covered by legal and professional privilege and could not be discussed as it could potentially prejudice potential future action.

 

Verification was requested that all possible steps had been taken to give the right legal advice to officers and Cabinet.  It was understood that officers and Members had been informed on different occasions of the opinion of Counsel.  That advice was legally privileged and should not have been shared in the manner it was and should not have been in the public domain, so the officer was unable to comment further.

 

It was reiterated that the advice would be for the local authority not to take another publicly funded authority to court.  It would be an action for the group to seek their own legal advice and determine what action they would wish to take.  Were the local authority to take legal action against anyone and lose the local authority would be responsible for all the legal costs for both parties, known as wasted costs, plus resulting reputational damage.

 

If a party had obtained a legal opinion on a matter the question was whether another party could rely on that legal opinion or if the second party would have to obtain their own.  As a general legal principle they could not and would have to seek their own.

 

Conclusions

 

OSMB recalled that this issue had been raised at full Council when all Members had been unanimously against restarting tipping and was why the Cabinet Member had been pursuing matters with the Secretary of State, which it was hoped would continue.

 

The EA focus seemed very much on Phase 2 monitoring and to establish public trust.  However wider concerns regarding traffic, roads and Phase 1 meant people were not confident things were totally safe or that issues would be dealt with swiftly enough should anything happen.  Assurance was also needed that thorough checks would be carried out on the content of waste going into Phase 2, with the concerns about asbestos in Phase 1, to ensure the safety of residents and wildlife. 

 

Another concern if it went ahead would be how well informed people would be, given the past history of inadequate management on site.  A recommendation around regular, rigorous monitoring of what was happening on the site was needed, including Phase 1, because local residents knew what had previously been dumped in there and if disturbed it would entail a lot of clearing up.

 

Members wanted to see information requested by the EA being shared with the Council if this activity went ahead with scope for any potential measures in the case of the operator not adhering to the timetable or operating properly.

 

Reassurance would be necessary that the contents of Phase 1 would be contained and that traffic management would be in place to avoid conflict with other vulnerable road users.  Assurances were also needed with regard to monitoring the impact of Phase 2 on the community, schools and sports grounds.

 

The Chair thanked everyone for their attendance and input at the meeting and in particular the officers from the EA as they were not obliged to attend scrutiny and had had a large number of questions to answer.  The Chair would be writing to all parties regarding the outcomes.

 

Having considered the representations made by the lead petitioner and information supplied by the Cabinet Member and officers, the Chair acknowledged the strength of feeling and genuine concerns of the local community.  Although sympathetic to the case presented by the DAG, the OSMB were unable to support the call for enforcement action by the Council but they agreed a number of recommendations to be forwarded to Cabinet for consideration.  Recommendations 1-10 were carried unanimously and recommendation 11 by majority with one abstention. 

 

Resolved:

 

1)    That further assurances be sought from and provided by the Environment Agency in respect of credentials of the independent consultant engineer that would be appointed by Grange Landfill will be properly validated to provide greater confidence to the local community regarding existing materials on the Phase 1 of the site and the impact on the local highways, the local environment and surrounding wildlife.

 

2)    That the Droppingwell Action Group be encouraged to continue to seek independent legal advice in respect of any legal proceedings that they wish to institute in respect of the Grange Landfill site or against any regulatory body.

 

3)    That the Environment Agency, in view of the significant public concern and concerns on the part of the Council, be strongly encouraged to undertake quarterly visits to the Grange Landfill Site to provide greater assurance in respect of the operation of the site.

 

4)    That, in view of the significant public and historical concerns in respect of this site, the outcomes of monitoring visits on the site be published on the Environment Agency website and be proactively shared with the Droppingwell Action Group and Rotherham MBC, and be published via the Council’s website www.rotherham.gov.uk/grangelandfill

 

5)    That Grange Landfill, the Environment Agency and the Council work together, and consult with the Droppingwell Action Group, to produce user friendly communications for residents to better explain what the site is to be used for in Phase 2, with specific reference to the stability risk assessment of Phase 1, and how the safety of the site and impact on the locality will be monitored.

 

6)    That the Cabinet be encouraged to continue to actively lobby in the strongest possible terms the Secretary of State for Housing, Communities and Local Government in respect of the site and the legislative framework under which it is able to operate.

 

7)    That the Member of Parliament for Rotherham be strongly encouraged to raise a question to the Prime Minister to raise the significant public concern in respect of the site and put pressure on the government through parliamentary procedure to revisit the statutory framework.

 

8)    That the Cabinet require the Strategic Director of Regeneration and Environment to ensure that all actions are taken to minimise the impact of the operation of the site on local residents and communities, sports grounds and schools, particularly with a view to reducing risk and inconvenience to Millmoor Juniors Football Club and local wildlife.

 

9)    That, having regard to the call for action within the petition, where appropriate and within the powers available to the Council, enforcement action be taken in respect of environmental, transport and planning matters where there are reported or suspected breaches of conditions or legislation.

 

10)That the Cabinet be advised that the Overview and Scrutiny Management Board, whilst wholly sympathetic to the representations made on behalf of the Droppingwell Action Group, do not support the call for legal action to be commenced by the Council against the Environment Agency.

 

11)That an update report on the site and ongoing work with the Droppingwell Action Group be provided to Improving Places Select Commission in six-months time.