Memorandum by the National Alliance for
Cleaner Kilns for the Environment Sub-committee Inquiries into
The Work of the Health and Safety Executive (HSE) and The Work
of the Environment Agency (EA) (HSE 04)
THE INCOMPETENCE OF THE UK "COMPETENT
AUTHORITY"
The HSE Press Release of 15 May 1998 announced
the publication of the UK Government's "Proposals to implement
the Seveso II Directive" which proposed "a new Competent
Authority to enforce the regulations", a combination of the
HSE and the EA.
This memoranda reports the failure of the UK
"Competent Authority" to meet its statutory duty and
duty of care under the "Seveso" Directives to protect
the health and safety of both workers and the public from the
risks and hazards caused by the receipt, mixing, storage, and
disposal by incineration of toxic and dangerous wastes in cement
and lime kilns throughout the UK.
This memoranda also records breaches of the
Human Rights of the Prime Minister's Sedgefield Constituents,
and of the long suffering residents of Clitheroe and Ribble Valley,
Lancashire.
1. BACKGROUND
On 10 July 1976 a rupture in a storage tank
at a Hoffman-LaRoche chemical plant in Seveso, Italy, released
to air a mixture of chemicals, including the highly toxic dioxin,
which settled on large areas of the communes of Seveso, Meda,
Cesano Maderno and Desio, drastically effecting the lives, health
and environment of local residents.
23 years, several thousands of man hours work,
and millions of pounds later, local residents' lives are still
being affected, still undergoing long-term observation and regular
check-ups today.
For many people "Seveso" symbolised
the very real, and the imagined, risks and hazards of living near
a chemical handling and storage facility, and unleashed a wave
of such anxiety, fear and criticism in the public that their representatives
resolved that "Seveso must never be allowed to happen again".
On 24 June 1982 the European Council finally
agreed and signed European Community (EC) Directive 82/501/EEC
"on the major-accident hazards of certain industrial activities",
ie, the "Seveso" Directive.
The 1982 "Seveso" Directive applied
to every Member State industrial establishment conducting an activity
involving toxic and dangerous substances which, in the event of
a major accident, may have serious consequences for man and the
environment.
The Directive laid down that, in the case of
any industrial activity which involves substances that are particularly
dangerous (eg, "Toxic") in certain quantities (eg, 200
tonnes), persons both working inside and living outside of the
establishment must be provided with information, including specific
details of the substances in question, with a view to reducing
the risks and hazards of major accidents, and to enable the necessary
steps to be taken to reduce their consequences (eg, evacuation
of the area).
The practical effect of the Directive meant
that, where toxic and dangerous substances were being received,
stored, and treated, the "Competent Authority" are required
to provide both workers and the public population with information
about the risk factors involved, and how to proceed in event of
an accident at nearby chemical establishment, including on-site
and off-site emergency evacuation plans.
Although the 1982 "Seveso" Directive
82/501/EEC was purportedly "implemented" into UK legislation
by the Control of Industrial Major Accident Hazards (CIMAH) Regualtions
1988, the UK "Competent Authority" responsible for enforcing
the regulations has failed to implement and enforce the requirements
of the Directive at any cement or lime kiln toxic waste incineration
plant in the UK.
2. THE SITUATION
IN THE
PRIME MINISTER'S
CONSTITUENCY OF
SEDGEFIELD
When Redland LaFarge (previously Redland Aggregates)
started incinerating toxic and dangerous waste in their lime kiln
in Thrislington, Sedgefield, County Durham, in early 1994, residents
asked the "Competent Authority" to enforce the provisions
of the 1982 "Seveso" Directive.
An HSE Inspector visited the company in July
1994 and was told by Redland management that the wastes being
received, stored, and incinerated were not classifiable as "Toxic",
and that the Health and Safety requirements of the 1982 "Seveso"
Directive did not apply to their Thrislington Works site.
The HSE Inspector accepted the company's assertions
that the wastes were not classifiable as "Toxic", and
advised Durham County Council (DCC), the Emergency Planning Authority,
that informing the local residents of risk factors involved and
how to proceed in event of an accident, and the preparation of
off-site emergency evacuation plans, was not required as the 1982
"Seveso" Directive did not apply.
Requests for documentary evidence to verify
that the wastes were not classifiable as "Toxic", ie,
the supplier's classification calculation, laboratory analysis,
or Safety Data Sheet for the wastes, established that whilst the
HSE Inspector recalls being shown a "Safety Data Sheet"
by Redland management, he cannot recall the author of the document,
did not request a copy, and did not record that he had seen or
verified the accuracy of the content of the document.
In short the HSE holds no evidence that they
have carried out their Statutory Duty under the 1982 "Seveso"
Directive, and have no evidence that the wastes being delivered,
stored, and incinerated by Redland during the last six years were
not classifiable as "Toxic".
In February this year NACK finally obtained
documentary evidence which verifies that the wastes being supplied
to Redland for disposal in at least 1995 and 1998, were classified
by the consignor as "Toxic".
Consequently the Prime Minister's constituents
have been living near a site receiving, storing, and disposing
of toxic and dangerous hazardous waste without being informed
of the risks and hazards this presented, and without the off-site
evacuation plans required under the 1982 "Seveso" Directive
being drawn up and made publicly available by the designated "Competent
Authority".
On 19 February 1998 the European Court found
that the failure to provide the local population with information
about risk factor, and how to proceed in event of an accident
at a nearby chemical factory was a contravention of their Human
Rights under Article 8 of the European Convention.
The Court found that the failure of the "Competent
Authority" to publicly provide information which may effect
local residents' well-being, and thereby prevent them from enjoying
their homes in such a way as to affect their private and family
life adversely, is a failure of the Member State's obligation
to secure their right to respect for their private and family
life, and deprives them of essential information that will enable
them to assess risks they and their families might run if they
continue to live in the area.
In the case before the Court, the "Competent
Authority" had gathered the information and prepared the
emergency plans, but had not released them to the public. The
UK "Competent Authority" responsible for informing and
protecting the Prime Minister's constituents, Durham County Council,
has not only not provided information to local residents, they
have not even prepared emergency plans.
When advised that NACK had finally obtained
evidence which verifies that the wastes being supplied to Redland
for disposal in at least 1995 and 1998 were classified by the
consignor as "Toxic", the HSE Inspector re-visited the
company and was provided with a brand new document prepared by
Redland management which classified the wastes being received,
stored, and incinerated at their Thrislington Works as "Toxic".
However, the HSE have now informed NACK that
they have accepted Redland management's assertions that the 1982
"Seveso" Directive still does not apply to their Thrislington
Works, as it is classified as a "quarry" under the UK
Mines and Quarries Act 1954. The HSE have not explained how a
1954 UK Act can legally nullify the requirements of a 1982 EC
Directive.
3. THE SITUATION
IN CLITHEROE
AND RIBBLE
VALLEY, LANCASHIRE
The EA has effectively authorised Castle Cement
in Clitheroe to:
(a) receive from any UK or non UK producer
or collector of waste, any single or multiple tanker or lorry
load of any liquid or solid toxic, carcinogenic, mutanegenic,
hazardous or non-hazardous waste, either as a single waste stream
or a mixture of an unlimited and unspecified number of wastes,
and
(b) to mix together any number of such liquid
or solid toxic, hazardous or non-hazardous wastes, to dilute that
initial preparation with other wastes or non wastes, and to store
and then incinerate the final preparation without any chemical
analysis to determine the hazards or risks to employees or the
public.
During the seven years since Castle Cement (CC)
started disposing of toxic dangerous waste in its cement kilns
in Clitheroe in 1992, local residents and NACK have repeatedly
asked the HSE and the EA to provide specific details of the wastes
being received, stored, and incinerated.
Repeated requests to the HSE for documentary
evidence to verify that the wastes were not classifiable as "Toxic",
ie, the supplier's classification calculation, laboratory analysis,
or Safety Data Sheet for the wastes, have been met with the response
that whilst the HSE have accepted that the wastes are being properly
classified, they do not hold any of the requested documentary
evidence to confirm their view.
In short the HSE holds no evidence that they
have carried out their Statutory Duty under the 1982 "Seveso"
directive, and have no evidence that the wastes being delivered,
stored, and incinerated by CC during the last seven years were
not classifiable as "Toxic".
For several years the EA also refused local
residents and NACK's requests for specific details of the wastes
being disposed of by CC, initially on "grounds" that
the chemical names and proportions of the wastes was "commercially
confidential" information.
After pointing out that this was in breach of
EC Directive 90/313/EEC on the freedom of access to information
on the environment, the EA alternatively claimed they did not
have the information.
After pointing out that the consignor's of waste
are under a Statutory Duty under EC Directive 75/442/EEC and its
amendments to provide to the EA a specific list of the names and
concentrations of chemicals in every tanker of waste delivered
to CC, the EA demanded an advance payment of £15,000 to produce
the information under the EA "Charges for Information"
policy.
Despite pointing out that the EC Attorney General's
Opinion of 28 January 1999 advises that such charges are unlawful
under EC Directive 90/313/EEC, the list of names and concentrations
of chemicals being delivered has still not been released to the
public, by either the HSE or the EA.
Clitheroe and Ribble Valley residents have lodged
complaints to all levels of authority and government, including
the Members of the Environment Select Committee, against the adverse
effects on their health, well-being, the enjoyment of their homes
and their private and family lives which they believe are being
caused by CC's cement manufacture and toxic waste disposal operations.
The failure/refusal of the "Competent Authority"
to release to the public details of the specific wastes being
received by CC is a failure/refusal to provide essential information
that would enable them to assess the risks they and their families
might run if they continue to live in the area, and is in breach
of their Human Rights under Article 8 of the European Convention.
Earlier this year NACK finally obtained documentary
evidence which verifies that wastes being supplied to CC have
been classified by the consignor as "Toxic", and that
Clitheroe and Ribble Valley residents have been, and still are,
living near a site receiving, storing, and disposing of toxic
and dangerous hazardous waste without being informed of the risks
and hazards this presents, and without the off-site evacuation
plans required under the 1982 "Seveso" Directive being
drawn up and made publicly available by the designated "Competent
Authority", in this case Lancashire County Council.
4. HOW THE
"SEVESO" DIRECTIVE
HAS BEEN
IGNORED IN
THE UK
When UK cement and lime companies started to
install plant and equipment to receive, mix, store and dispose
of toxic and dangerous waste, they did not apply for UK planning
permission for change of the use of their sites to include toxic
waste storage and disposal activities.
When applying for planning permission or permitted
development consent for installation of the storage tanks and
associated plant required to convert their kilns to toxic hazardous
waste incineration plants, the companies did not use the words
toxic, hazardous, or even the word waste. The kiln companies instead
used deliberately misleading words such as "Solvent Fuel"
and "Cemfuel", "a new light fuel oil", on
their planning applications.
The kiln companies also failed to provide to
the planning authorities the environmental information required
under EC Directive 85/337/EEC on the assessment of the effects
of certain projects on the environment, which is mandatory for
toxic and dangerous waste disposal installations (Annex 1 p 9).
UK County Council planning authorities readily
accepted the kiln companies' assertions that they were simply
using a new "fuel", which was already a permitted activity
and therefore did not require change of use planning permission.
Where a UK application was submitted, the relevant
UK County Council Planning Authority granted UK planning permission
or UK permitted development approval for "fuel" storage
tank installation.
Without exception all relevant UK County Council
planning authorities decided that as no UK planning application
was necessary to receive, mix, store, and incinerate "fuel",
the environmental information required to be provided to them
under EC Directive 85/337/EEC was irrelevant.
The UK County Councils are also the emergency
planning authorities responsible for informing and warning the
public, and preparing emergency evacuation plans, under the 1988
"Seveso" Directive 82/501/EEC / the CIMAH Regulations
1988.
As they had already decided that the kiln companies
were simply using a new "fuel" and not disposing of
toxic chemical waste and there was no change of permitted use
of the site, the County Councils also decided there was no need
to inform or warn the public, or to prepare emergency evacuation
plans in case of a chemical waste accident.
Similarly, the kiln companies did not inform
the HSE of their new toxic waste activities, or alternatively
informed the HSE that either:
(a) the new "fuel" was classified
as "Flammable" and not "Toxic", or
(b) their site was a "quarry" under
the Mines and Quarries Act 1954,
and therefore the 1982 "Seveso" Directive
/ the 1988 CIMAH Regulations did not apply to their site.
The HSE readily accepted the kiln companies'
word that the substances they were receiving, mixing, storing
and incinerating were not "Toxic", and/or that a 1954
UK Act invalidated a 1982 EC Directive.
Consequently, by either accepting the kiln companies
"fuel" not waste suggestion, by accepting the kiln companies
not "Toxic" only "Flammable" suggestion, and
by accepting the kiln companies "we are a quarry" and
not a waste incineration plant suggestion, the UK "Competent
Authorities" responsible for implementing and enforcing the
relevant EC Planning and Health and Safety Directives, have failed
in their Statutory Duty to protect the local residents and their
environment.
Not one cement or lime kiln site in the UK which
receives, mixes, stores, and incinerates toxic and hazardous dangerous
waste has been required by the EA, the HSE, or any UK County Council,
to meet the requirements of the 1982 "Seveso" Directive.
5. THE FUTURE
The HSE have failed in their Statutory Duty
to implement and enforce the requirements of the 1998 and 1991
EC Directives 88/379/EEC and 91/155/EEC (as amended), which require
that the wastes being transported to, and mixed, stored and incinerated
by cement and lime kiln companies, are properly classified as
"Toxic" and that the workers handling the toxic waste
preparations are properly informed of the risks and hazards they
are exposed to by a properly completed Safety Data Sheet.
The HSE and the County Councils have failed
in their joint Statutory Duty to implement and enforce the requirements
of the 1982 "Seveso" Directive 82/501/EEC, which requires
that both workers and local residents be provided with information
about the risk factors involved, and how to proceed in event of
an accident at the cement or lime works, including on-site and
off-site emergency evacuation plans.
The County Councils have failed in their Statutory
Duty to implement and enforce the requirements of the EC Directive
85/337/EEC, which requires that where toxic and dangerous wastes
are being incinerated in a cement or lime kiln, an Environmental
Impact Assessment is mandatory.
The EA have failed in their Statutory Duty under
the 1975 EC Directive 75/442/EEC which requires that before they
authorise the disposal by incineration of toxic and dangerous
waste in a cement kiln, they must establish that it will not cause
harm to human health or the environment, in its wider sense.
The EA has authorised cement and lime companies
to receive, store, and dispose of toxic and dangerous wastes knowing
when it issued that authorisation that the HSE and the County
Councils have not carried out their Statutory Duty under EC Planning
and Health and Safety Directives.
The past incompetence of the UK "Competent
Authority" is clearly demonstrated, and must not be allowed
to continue.
The UK Government's 15 May 1998 "Proposals
to implement the Seveso II Directive" 96/82/EC on the control
of major-accident hazards involving dangerous substances, resulted
in the Control of Major Accident Hazards (COMAH) Regulations 1999,
SI No. 743 being issued in April this year.
The UK Government proposed "a new Competent
Authority to enforce the regulations".
In the same month the UK Government also issued
the Town and Country Planning (Environmental Impact Assessment)
(England and Wales) Regulations 1999, SI No. 293, which the Waste
Policy Division of the Department of Environment, Transport and
the Regions (DETR) assured NACK fully implemented the requirements
of EC Directive 97/11/EC amending Directive 85/337/EEC, and in
particular would resolve past problems regarding the disposal
of toxic and dangerous waste.
On 5 and 8 September 1999 NACK informed the
DETR that the EA had authorised a new toxic and dangerous waste
incineration plant in Clitheroe, the HSE had failed in their Statutory
Duty to ensure that the waste was properly classified, that the
HSE and LCC had failed in their joint Statutory Duty to implement
and enforce the requirements of the Seveso II Directive 96/82/EC
/ the 1999 COMAH Regulations, and that LCC had refused to carry
out their Statutory Duty under EC Directive 97/11/EC and decided
not to require CC to provide the mandatory Environmental Impact
Assessment required for the incineration of toxic and dangerous
waste.
The DETR have refused to investigate NACK's
complaint, and have instead advised NACK of their right to make
complaint to the EC or to seek Judicial Review in the UK Courts.
NACK have concluded that it is not "a new
Competent Authority to enforce the regulations" made up of
HSE and EA employees which is required, but a policing body which
will ensure that the UK "Competent Authority" finally
implement and enforce the EC and UK legislation for which they
are responsible.
Compiled on behalf of NACK members by Brian L Sullivan
September 1999
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