Representation by Environment Agency (Environment Agency)
- Date submitted
- 12 September 2022
- Submitted by
- Members of the public/businesses
1.0 The Environment Agency’s Role 1.1 The Environment Agency is an executive non departmental public body, established under the Environment Act 1995. 1.2 We were established to bring together responsibilities for protecting and improving the environment and to contribute to sustainable development. We take an integrated approach in which we consider all elements of the environment when we plan and carry out our work. This allows us to advise on the best environmental options and solutions, taking into account the different impacts on water, land, air, resources and energy. 1.3 We help prevent hundreds of millions of pounds worth of damage from flooding. Our work helps to support a greener economy through protecting and improving the natural environment for beneficial uses, working with businesses to reduce waste and save money, and helping to ensure that the UK economy is ready to cope with climate change. We will facilitate, as appropriate, the development of low carbon sources of energy ensuring people and the environment are properly protected. 1.4 We have three main roles: • We are an environmental regulator – we take a risk-based approach and target our effort to maintain and improve environmental standards and to minimise unnecessary burdens on businesses. We issue a range of permits and consents. • We are an environmental operator – we are a national organisation that operates locally. We work with people and communities across England to protect and improve the environment in an integrated way. We provide a vital incident response capability. • We are an environmental adviser – we compile and assess the best available evidence and use this to report on the state of the environment. We use our own monitoring information and that of others to inform this activity. We provide technical information and advice to national and local governments to support their roles in policy and decision-making. 1.5 The Environment Agency takes action to conserve and secure proper use of water resources, preserve and improve the quality of rivers, estuaries and coastal waters and groundwaters through pollution control powers and regulating discharge permits. 1.6 We have regulatory powers in respect of waste management and remediation of contaminated land designated as special sites. We also encourage remediation of land contamination through the planning process. 1.7 The Environment Agency is the principal flood risk management operating authority. It has the power (but not the legal obligation) to manage flood risk from designated main rivers and the sea. The Environment Agency is also responsible for increasing public awareness of flood risk, flood forecasting and warning and has a general supervisory duty for flood risk management. We also have a strategic overview role for all flood and coastal erosion risk management. 2.0 Scope of these representations 2.1 These Relevant Representations contain an overview of the project issues, which fall within our remit. They are given without prejudice to any future detailed representations that we may make throughout the examination process. We may also have further representations to make if supplementary information becomes available in relation to the project. 2.2 We have reviewed the Development Consent Order (DCO) application, Environmental Statement (ES) and supporting documents submitted as part of the above-mentioned application, which we received on 1 August 2022. Our comments are presented using the document references and ES Chapter headings relevant to our remit below. 3.0 4.10 Indicative Landscape and Biodiversity Plans 3.1 We have reviewed this plan, the contents of which are satisfactory. 4.0 5.4 Combined Heat and Power 4.1 We have undertaken a high-level review of this document, which covers the economics of the proposal and identified end users. This would be a requirement of the permitting process for the proposed activities and therefore covered within conditions as part of an Environmental Permit; for example, requiring formal commissioning plans at the appropriate time. The Requirement contained in Schedule 2, Part 1 of the DCO appears appropriate for planning purposes. 4.2 We would normally expect a DCO application to include an assessment for Carbon Capture Readiness (CCR). We note that this proposal is to have Carbon Capture Usage and Storage (CCUS) from the outset and if this issue is covered in the ES we would be grateful if the applicant could signpost us to the relevant parts for this assessment. 5.0 5.7 Outline Landscape and Biodiversity Management and Monitoring Plan 5.1 We have reviewed this plan, the contents of which are satisfactory. 6.0 5.8 Consents and Licences Document 6.1 The Applicant has correctly identified that the proposed operation of the plant(s) will require a permit(s) from the Environment Agency under the Environmental Permitting (England and Wales) Regulations 2016 for Part A(1) activities. 6.2 The Applicant has also identified the need for a bespoke permit for discharge to surface water for dewatering during excavations. 6.3 Any works within 16m of the Environment Agency maintained flood defences will also require an environmental permit, as acknowledge in this document. The proposal to construct new flood defences will also require an environmental permit (please see comments in paragraph 12.4 below). 7.0 5.10 R1 Assessment 7.1 We have undertaken a high-level review of this document, which follows the Environment Agency’s guidance and shows the proposed design (based on the assumptions made) would meet the R1 status test, making the proposal a recovery, not a disposal, operation under the Waste Framework Directive. 8.0 6.2.5 Chapter 4 – Air Quality 8.1 We have undertaken a high-level review of this Chapter, which appears satisfactory for planning purposes. The assessment acknowledges the local Air Quality Management Area and appears to assess the risk in line with Environment Agency guidance and relevant methodologies. Please note, we have not undertaken a detailed review of the air quality modelling as the proposed combustion installation will require an operating permit under Section 1.1 Part A of the Environmental Permitting Regulations 2016. A detailed review of air quality modelling will be undertaken when we determine the permit application to operate the site. To date we have not received a permit application for this proposal. 9.0 6.2.8 Chapter 8 – Ground Conditions, Contamination and Hydrogeology 9.1 The Environment Agency has reviewed this chapter from the perspective of protection of controlled waters only and it considers the assessment undertaken in this respect to be appropriate. 9.2 The DCO appears to cover the need for a remediation strategy to be submitted through the Construction Environment Management Plan and Code of Construction Practice (Schedule 2, Part 1, Requirement 4). We welcome being included as a named consultee to the discharge of this Requirement, as we wish to review all additional site investigations, remediation proposals, which may have the potential to create flow paths between potentially contaminated soils and the water environment. 9.3 However, we are concerned that the DCO does not appear to include any requirement that secures investigation/details in respect of piling. Chapter 8, paragraph 7.2.1.2 states that “For any structures that require piling, there will be a requirement to avoid creating flow paths between potentially contaminated soils and/or groundwater in the underlying strata, both during construction and operation. Piling options will be fully defined on conclusion of the scheme specific ground investigation". Paragraph 7.2.1.3 goes onto list the clauses, which are intended to be included in relation to ground conditions, but none of these appear to cover ground investigations in respect of piling. As there is the potential for piling to open up pathways for contaminants to pollute groundwater, we would normally expect to see a separate requirement with regards to this and therefore request the inclusion of the following within Schedule 2 of the DCO: Requirement (1) No piling or any other foundation designs using penetrative methods shall be permitted, until a written piling and penetrative foundation design method statement, informed by a risk assessment, for that part, has been submitted to and, after consultation with the Environment Agency, approved by the relevant planning authority. (2) All piling and penetrative foundation works must be carried out in accordance with the approved method statement. Reason To ensure the development does not cause pollution to groundwater. 10.0 6.2.9 Chapter 9 - Water Resources and Flood Risk 10.1 Paragraph 8.2.1.1 states that “no water abstractions will be required” during the construction phase. However, should this change then 20m3 of water per day can be abstracted without requiring an abstraction licence. If the Applicant wishes to abstract more than this volume, they must contact the Environment Agency to obtain a licence. 10.2 Paragraph 8.2.1.3 states that “Construction activities could require the disposal of water” and acknowledges this will require the agreement of the Environment Agency. A permit would be required to discharge dirty water to surface waters and this would need to be applied for in advance of the commencement of the project as the permitting process can take a several months to complete. 10.3 Paragraph 8.2.4.9 outlines the Applicant’s intention to connect to a mains sewage system, though it is not specifically stated whether the sewerage undertaker has agreed to this and has capacity available to accommodate the development. On the basis that the sewerage undertaker agrees, this proposal is acceptable. We note that the detailed scheme is to be submitted post consent and this is secured through Requirement 9 in Schedule 2, Part 1, of the DCO. 10.4 Paragraph 9.1.1.3 of the assessment identifies a significant effect on a single receptor, a commercial building to the north of Flixborough Wharf. Further analysis within the Flood Risk Assessment determines that the increased risk to this building because of the development is limited to a breach of the flood defences immediately to the west of the development: in which event the commercial building experiences a depth increase of 117mm. This depth increase does not result in a change to the flood hazard rating (as defined in “Flood Risk Assessment Guidance for New Development: R&D Technical Report FD2320/TR2” [Defra/Environment Agency, 2005] Table 13.1) which is primarily ‘very low hazard’, and peaks at ‘danger to some’ immediately to the south of the building. 10.5 Paragraph 9.1.1.3 proposes to manage this impact via a Flood Management Plan. We do not normally comment on or approve the adequacy of flood emergency response procedures accompanying development proposals, as we do not carry out these roles during a flood. Our involvement with this development during an emergency will be limited to delivering flood warnings to occupants/users covered by our flood warning network. In all circumstances where warning and emergency response is proposed to manage flood risk, we advise the Planning Inspectorate to take advice from the relevant emergency planning authority (North Lincolnshire Council) to assist with determining whether this proposal is acceptable and safe. 10.6 For comments on the Annex 3 Flood Risk Assessment, please see paragraphs 12.1 to 12.5 below. 11.0 6.2.10 Chapter 10 - Ecology and Nature Conservation 11.1 We welcome the monitoring and control of invasive mink (paragraph 9.1.4.7), as this will provide ongoing benefit (protecting water vole populations in particular) rather than allowing them to recolonize. 11.2 We welcome the inclusion of the biodiversity net gain assessment, which concludes the overall percentage increase will be greater than 10%. We particularly welcome the benefits to be achieved for watercourse units but defer to Natural England to comment on the acceptability of the assessment details for this. 11.3 Although Schedule 2, Part 1, Requirement 7 secures a Landscape and Biodiversity Management and Monitoring Plan (LBMMP), which must accord with the principles in the Outline LBMMP, we are concerned that this does not adequately secure 10% biodiversity net gain delivery based on any final plans. Neither does it specifically secure the required 30 years of management and monitoring within the DCO. We request that the Applicant discusses this issue further with Natural England and considers how both can be adequately secured. 12.0 6.3.3 Annex 3: Flood Risk Assessment (May 2022) 12.1 The Flood Risk Assessment (FRA) indicates that the development will have an impact on flood risk during flood events which exceed the current standard of protection of the adjacent flood defences and in the event of a breach of these defences. The FRA identifies measures to manage and mitigate this increase in risk and provided the measures identified in the FRA are followed the Environment Agency has no objection to the proposals. 12.2 We can also confirm that the Environment Agency has undertaken a review of the hydraulic model, which underpins the FRA work. This model utilised the latest UK Climate Projections, as required by paragraph 4.8.6 of the Overarching National Policy Statement for Energy (EN-1), and it is our view that it is fit for purpose. Accordingly, it is also our view that the FRA is proportionate to the risk and appropriate to the scale, nature and location of the project as required by paragraph 5.8.7 of EN-1. 12.3 The final design details for the mitigation measures are yet to be agreed and we welcome the opportunity to work further with the Applicant on this. Accordingly, we welcome the inclusion of the Environment Agency as a specific consultee to the flood resilience implementation plan secured by Requirement 12 in Schedule 2, Part 1 of the DCO. 12.4 The scheme includes the proposal to construct several new flood defences. These will require a permit from the Environment Agency under the Environmental Permitting Regulations 2016, along with any other construction activities which take place within 16m of the Environment Agency maintained flood defences. Permitting requirements are acknowledged in document 5.8 (Consents and Licences Document) as mentioned in paragraph 6.3 above. 12.5 Please note that our advice relates to flooding from tidal and fluvial sources only and has not considered the risk of flooding from ground water, drainage systems, reservoirs, canals or ordinary watercourses as they do not fall under our direct remit. 13.0 6.3.7 Annex 7: Code of Construction Practice 13.1 The potential impact on watercourses such as the Lysaght Drain is acknowledged in the plans and although no specific plans have been submitted for mitigation, the document discusses the need for water quality monitoring and treatment through methods such as settlement ponds and interceptors. We expect these types of issues to be discussed in detail in the Construction Environmental Management Plan (CEMP) to be submitted post consent, as secured through Requirement 4 in Schedule 2, Part 1, of the DCO. Measures to reduce the impact on watercourses must be considered at each stage of construction. Only clean water should be discharged to a watercourse and any dirty water discharge requires a permit. If a pollution incident should occur, this should be reported to the Environment Agency immediately. 13.2 Appendix F: Outline Construction Flood Management Plan (March 2022) An outline Construction Flood Management Plan is provided. We note that the matters that will be covered (but will not necessarily be limited to) are listed in paragraph 3.1.1.2. For the avoidance of doubt, we request that the final version of this plan should detail how access for flood defence inspection and maintenance purposes will be retained for Environment Agency staff and contractors throughout the construction process. 13.3 The final version of the plan should also identify all flood defence infrastructure within or adjacent to the development boundary and put in place measures to ensure that construction activities do not directly damage these assets, nor do works in the vicinity of these assets endanger their stability or operational performance. 14.0 Further Representations 14.1 In summary, we can confirm that we have no objection to the principle of proposed development, as submitted. We are satisfied that the ES has adequately considered issues/topics that fall within our remit. The draft DCO secures appropriate mitigation in relation to these issues/topics, except for piling which can be secured through the inclusion of an additional requirement, as requested in paragraph 9.3 above. The Applicant should discuss an appropriate mechanism for securing BNG with Natural England. 14.2 We reserve the right to add or amend these representations, including requests for DCO requirements and protective provisions, should further information be forthcoming during the examination.