Examination of Witnesses (Questions 80-92)
WEDNESDAY 19 NOVEMBER 2003
SIR JOHN
HARMAN, MR
CRAIG MCGARVEY
AND MR
DAVID JORDAN
Q80 Mr Mitchell: So it was extracted
from the Dales in late September?
Sir John Harman: It was being
dealt with partly by Craig's area in the Dales and partly by the
national unit for trans-frontier shipments. They were dealing
with it and, as David pointed out, we deal with a large number
of applications on their merits and it did not ring any alarm
bells at that stage.
Q81 Mr Mitchell: It is a sorry story,
is it not? How on earth is a firm meant to run a business? Not
just being sycophantic to Peter Mandelson because of his new position
in government but what he said made a lot of sense. How can a
firm run a business in a competitive world, where people are bidding
for contracts, when we have got the Environment Agency changing
its mind and just buggering around this like?
Sir John Harman: With due respect,
Mr Mitchell, we did not change our mind.
Q82 Mr Mitchell: You did. You gave
permission for them to come and then you withheld it and you said
"Don't come".
Sir John Harman: There are two
permissions. Let me just go back to Craig's answer. When you invited
him to give you the time line the questioning cut across the middle
of his time line, so we never got to the end of it. There are
two permissions that we are responsible for. We have spoken much
about the trans-frontier shipment licence and the waste management
licence, those are the two. The point at which the Agency advised
the ships should return, and that was not on the basis of any
environment judgment, was the point at which the legal challenge
came to the waste management modification. We took legal advice
and the legal advice we had was that the modification really was
not valid, that it ought to require a new licence. That in itself
would not have dissipated the problem over planning permission,
which is still disputed and still extant, but it did mean that
we then took the view that if a new waste management licence was
required then the transfrontier shipment ought not to be undertaken
until we have got that in place and we asked for the ships to
go back. We would never at any point have changed our view about
the environmental assessment of the process.
Q83 Mr Mitchell: But you did change
the advice the Americans were getting? First of all you said "Come"
and then you say "Go back, don't come". Talking to MARAD
and saying "Keep your lads at home" to which they reply
"The ships will continue to cross the Atlantic", quite
understandably, I would have said the same thing myself. The point
there is that you are using this abstruse argument about planning
permission—which will take months and years possibly to
resolve in Hartlepool the way they do things—as an excuse
for covering your own backside for flapping about all over the
place.
Sir John Harman: Craig will answer
in a moment but can I just take the end of that question. It is
our view, and has been all the way through, that the responsible
recovery of these vessels can take place in dry dock. That is
the key issue. After that view had been taken and TFS issued in
July, any gyration on the part of the planning situation, any
dispute about planning, cannot affect any more the decision on
TFS but it can render it incomplete, unable to be completed. The
issue is not using the planning permission to wave at MARAD, it
is the fact that without planning permission there would be no
adequate dismantling of the vessel.
Q84 Mr Mitchell: All you are doing
now is passing the buck back down to Hartlepool?
Sir John Harman: Certainly not.
It is and remains, and I do not know how we can say anything different,
the view of the Environment Agency that the proper dismantling
of these ships requires a dry dock containment with a bund. When
you say "dry" there will be some part of this process
that happens while water is still in the dock and some part which
happens when it has been drained, so dry dock is a bit of a misnomer.
There is a proper way to do this and the only relevance, but it
is a huge relevance, of the planning permission is that that is
the means that the company has to undertake the proper dismantling.
It is our view they should be dismantled properly, we could say
nothing else and say nothing else today.
Q85 Mr Mitchell: What response did
you get from, first of all, Able UK and, secondly, from MARAD
when you told them on 30 October at the end of this messing about
that you had rescinded the modification to the waste management
licence?
Mr McGarvey: Bear in mind prior
to 30 October we had been saying to MARAD through September and
early October "You need to be aware that the company has
not got all the permissions it needs, notwithstanding ours".
Q86 Mr Mitchell: You got a reply
from them saying the ships are still going to come.
Mr McGarvey: This is contextual
to the decision we informed them of on 30 October. We were keeping
all players informed that we thought there were some issues. In
particular we were saying to them "One of the contractual
obligations that Able UK has with MARAD is that all of its permits
and permissions to enable this to take place will be in place
within a very short timescale of the contract being let".
Whilst actually potentially it is not our responsibility to start
raising those issues to MARAD we felt an obligation as a regulator
to start saying to MARAD "We need to be talking to you because
you have a regulatory relationship with us and there are some
other permissions which the company seem to be unearthing, coming
across, or you are just making applications for, all of which
start to create this feeling that the dry dock option might not
be completed", and particularly bearing in mind one of the
regulatory requirements of the transfrontier shipment notification
is that once the waste is received in this country it has to be
disposed of within 180 days, so we were getting increasingly concerned
that if the company had other issues to resolve, FEPA licences,
planning and other matters, that they were not going to be able
to comply with the TFS approval because once they arrived the
clock would start ticking. We made them aware of all those factors.
In the context of saying to them on 30 October "We have scrutinised
all our legal situations on this" and in particular given
that the planning permission is now in serious dispute and we
did our environmental risk assessment on the basis of this being
done in a dry dock, because that was what the company told us
we were doing, if that now does not look possible it undermines
our waste management licence modification.
Q87 Mr Lazarowicz: On that point,
when did you first make it clear to the company that they would
be required to carry out operations under dry dock conditions?
Mr McGarvey: The company made
that clear to us and it appears to us clear from the contractual
arrangement with MARAD that was the arrangement and also from
talking to the United States EPA. The United States EPA have given
an enforcement discretion which appears to be based on a number
of factors, one of which is the company having a dry dock facility.
In talking to the US EPA they advised us that all the representations
they had received from the company when they came and inspected
the site were on the basis of this being done to the highest environmental
standards of a dry dock.
Q88 Mr Lazarowicz: The timings are
of importance here. When was it the company told you they would
be doing it under dry dock conditions?
Mr McGarvey: They had always made
it clear to us that was their intention.
Q89 Mr Lazarowicz: From when?
Mr McGarvey: From 1997. I think
we became concerned when Hartlepool on 7 October said the planning
permission in their view was no longer valid. The company then
said in a press statement "Well, we think we can do it another
way". Of course they could think up numerous different ways
of doing it, none of which they needed to share with us, but they
started to share another way of doing it and of course our environmental
risk assessment had been done on the basis of doing it one way.
Of course at that point as environmental regulator we had to start
saying, "This now looks as though it could pose risks which
have not been fully evaluated".
Q90 Mr Lazarowicz: Was that the first
time at which it was suggested it would not be done under dry
dock conditions?
Mr McGarvey: Yes, it was the first
time that they had publicly stated that they could have an alternative
plan. Just to add some more to that. The marine administration
had a technical compliance plan as part of the contract and that
technical compliance plan is only for dry dock working.
Chairman: Fine. For the benefit of the
Committee we are going to be subjected to a series of votes at
10 minutes to 5. I am going to bring this session with the Environment
Agency to a close in just a second because I would like us to
start with the Minister. I know Diana Organ wants to ask a question
about costs and that will be the only question and then we will
go to the Minister.
Q91 Diana Organ: I just want to know,
we have the President here at the moment, are we going to send
him home with a bill for this because who is going to pay for
the safe storage of these ships through the winter?
Sir John Harman: The matter of
storage is a matter for Able UK and MARAD between them, they are
the contracting parties. Our costs will be recovered. The costs
now of inspecting and monitoring the arrangement will be recovered
through subsistence charges in the ordinary way.
Q92 Diana Organ: It is not going
to fall on the British taxpayer?
Sir John Harman: As far as I am
concerned, no.
Chairman: Thank you very much indeed.
We have had a fairly fluid exchange. As I said I wanted to let
lines of thought run. I would like you to reflect upon some of
the lines of questioning that the Committee has put forward, merely
to say to you if in the light of that there are any further comments
you want to put in writing to us by way of additional response
to the questions that colleague Members of the Committee have
put forward, I am sure we would be interested in reading those
before determining our views on this matter. Thank you very much
for coming. We will now take the Minister.
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