Memorandum submitted by Friends of the
Earth
PREAMBLE
Friends of the Earth is one of the UK's largest
and most effective environmental groups. It has worked on waste
issues for over 30 years and on chemicals issues for more than
15 years. It has been a key player in the development of UK legislation
to protect biodiversity and has run numerous campaigns to ensure
that EU and UK wildlife legislation is adhered to. It has over
200 local groups across the country and is a member of Friends
of the Earth International which has 70 member groups, most within
the developing world.
More recently Friends of the Earth has been
working on the issue of environmental justice (the poorer in society
suffering from the worst effects of environmental abuses). For
the last two years it has employed a Community Development Worker
in Teesside to work with socially disadvantaged communities concerned
about the effects of pollution from the chemical and nuclear industry,
the lack of the environmental monitoring and the regeneration
of the area to attract cleaner industries and cleaner jobs. Friends
of the Earth responded to requests by the community to investigate
the threats posed by the import of the ghost fleet ships and to
help identify their opportunities to engage with the decision-making
processes.
Friends of the Earth has been deeply involved
in this issue on a considerable number of levels for several months.
The issues raised are both factually and legally extremely complex.
This note cannot do justice to those issues in the short time
available to us. If the Committee would like further information
on any aspect of this matter we should be pleased to provide it
either by way of written or oral evidence, or to answer questions
in writing or by telephone in advance of the Hearing on Wednesday.
ENVIRONMENTAL THREATS
POSED BY
THE GHOST
FLEET SHIPS
A comprehensive report into the fragile state
of the ships and the hazardous chemicals within them has been
produced by US environmental group the Basel Action Network (BAN).
The report was not written by Friends of the Earth although we
would endorse many of its findings and share many of the concerns
of its authors.
The report is available on-line at:
http://www.ban.org/Library/Needless%20Risk%20FinalA4.pdf
The Committee should note that the BAN report
is based in considerable part on statements by the relevant US
authorities and on official and accepted statistics.
Recent statements by US Congresswoman Jo Ann
Davis that she would fight to prevent the return of the four ghost
fleet ships currently moored in the UK or on their way to the
UK because the ships "are a disaster waiting to happen"
has provoked protest within the North East, for example see Northern
Echo front-page article at:
http://www.thisisthenortheast.co.uk/the-north-east/news/ghost-ships/archive/141103.html
and Congresswoman Davis" own news release
at:
http://www.house.gov/joanndavis/pr-031006-ghostfleet.htm
FRIENDS OF
THE EARTH'S
INVOLVEMENT
Evidence concerning the environmental risk posed
by the ships and the regulatory and legal position in the UK (ie,
the absence of appropriate permissions) has emerged over several
months. Much of it has arisen as a result of persistent questioning
by Friends of the Earth and others. During that time Friends of
the Earth has worked consistently to gain a detailed understanding
of the regulatory and legal position so as to ensure that international,
European and domestic environmental law was being upheld. As a
result of our investigations it became clear to us that decision
making by UK regulatory authorities (in particular, though not
exclusively, the Environment Agency) was being rushed through
without due consideration for the complexity of the legal and
factual position and without taking sufficient, or any, account
of the concerns of members of the public concerning the imports
of these ships. It was as a result of that rush that a number
of regulatory decisions were made that on further analysis turned
out to have been made wrongly.
From the outset Friends of the Earth have had
a number of concerns including:
— The US has the facilities and expertise
to deal with its own waste (including hazardous waste and ships).
In accordance with the proximity principle (ie, the principle
that waste should be dealt with proximate to the place at which
it arises) the ships should be scrapped in the US (as indeed some
are).
— The ships pose a serious environmental
risk (by virtue of the combination of their "dangerously
deteriorating"[3]
condition and their contents) especially to sensitive marine habitats.
— Disposal of the constituent hazardous
parts of the ships in the UK creates environmental hazards for
the UK.
— There has been no consultation with
local people in Teesside concerning the question of whether they
want to receive this type of waste.
There have been no adequate assessments of the
environmental risks posed in the UK (particularly the potential
threat to the internationally protected wildlife environment on
Teesside both by construction of the facilities to receive the
ships and the scrapping process itself).
The deal has involved environmental and health
laws being waived on both sides of the Atlantic—in the USA
the prohibition on export of PCBs (Toxic Substances Control Act)
was waived in respect of this deal by the USEPA, in the UK the
prohibition on the import of Asbestos (Asbestos (Prohibitions)
Regulations 1992) was waived in respect of this deal by the HSE;
— The deal will set a precedent which
may lead to ghost fleet vessels being sent to developing countries
for disposal where there will fewer environmental and health safeguards.
Friends of the Earth has sought to keep the
public informed of developments by way of regular press briefings—for
that reason we set out the chronology by reference to many of
those briefings and releases. We also set out some limited details
of our involvement in the regulatory/legal issues surrounding
the Ghost Fleet. The chronology below should, for obvious reasons,
not be treated as a full chronology but includes key moments only.
CHRONOLOGY OF
KEY MOMENTS
July-November 2003
On 22 July the Environment Agency granted the
Transfrontier Shipment of Waste Notification thereby permitting
the import of the 13 ships (classified as waste) for recovery
at Able's TERRC site in Hartlepool (That licence has now been
declared invalid by the Agency—see below). At that time,
the company in question did not have a waste management licence
adequate to the task of scrapping the ships. Nor, it transpired,
did it have other permissions necessary to construct a dry dock
environment necessary to do so.
The first national newspaper article on the
issue was written by Mark Townsend in the Observer on 27
July, on-line at:
http://observer.guardian.co.uk/politics/story/0,6903,1006677,00.html
On 31 July Able applied to the Environment Agency
for modification of waste management licence to allow them to
complete the project. This modification was needed in order (a)
to permit ships to be scrapped at the site (previously not permitted);
and (b) to increase the amount of tonnage permitted to be scrapped
at the site from 24,500 tonnes per annum to 200,000 tonnes per
annum.
On 18 August Able UK applied for planning permission
to build a coffer dam/bund. Construction of a dam/bund was required
if the ships (or any other structure) were to be dismantled in
dry dock conditions as envisaged. Throughout the remainder of
August and early September Friends of the Earth's legal team corresponded
with Hartlepool BC (the planning authority) seeking to persuade
them of the legal necessity for an environmental impact assessment
(EIA) to be carried out for the project. English Nature and RSPB
also called on Hartlepool to require an EIA.
At the end of August, Friends of the Earth produced
a press briefing outlining some concerns with the importation
of the ships. The issues raised in the briefing included the lack
of local consultation, potential threats to internationally protected
wildlife sites in Teesside, the condition of the ships and the
international trade in ships for scrapping. This prompted a front
page article in the Guardian by John Vidal, on-line at:
http://www.guardian.co.uk/uk-news/story/0,3604,1034542,00.html
On 3 September, the deal was branded "an
environmental disaster in the making" by Liberal Democrat
environment spokesman Norman Baker. Coincidentally, Congresswoman
Jo Ann Davis (Virginia) has used very similar language in demanding
that the deal go ahead precisely to avoid a "potential environmental
disaster" in Virginia.
Also on 3 September, the Environment Agency
completed the first of its assessments under the Habitats Regulations
concluding (in relation to the modification to the waste management
licence—see 31 July above) that there would be no likely
significant effects on the specially protected European site by
virtue of the modification. That decision was subsequently shown
by Friends of the Earth to have been unlawfully made (see 22 September
below).
On 10 September, Friends of the Earth released
a press release stating that the ships may set sail shortly but
the necessary permissions were not yet in place to construct a
dry-dock—this related to Able UK's application for planning
permission to construct a dry dock. We reiterated our call for
an environmental impact assessment into the potential risks posed
to the protected wildlife sites. The release is available on-line
at:
http://www.foe.co.uk/resource/press-releases/toxic-ghost-ships-to-set-s.html
On the same day we issued a press release regarding
legal letters sent to Hartlepool Borough Council (by which we
insisted on a full EIA being carried out) and other legal actions
underway (by other organisations), available on-line at:
http://www.foe.co.uk/resource/press-releases/d-day-for-ghost-ships.html
On 12 September we issued a press release based
on a document obtained from a US journalist which showed that
a US Marine Administration report showed that a number of the
ships intended for the UK had a high risk of leaking and contained
large amounts of oil. We subsequently obtained information demonstrating
that 11 of the 13 ships coming to the UK were rated by the US
authorities as being amongst the "40 worst condition vessels".
We reiterated our concerns about the risk any oil leak could have
on the wildlife sites, as well as the potential damage that could
be caused to beaches and tourism. The press release is at:
http://www.foe.co.uk/resource/press-releases/high-risk-of-toxic-ghost-s.html
On 17 September Hartlepool BC inform Able that
an environmental impact assessment would be required for construction
of the cofferdam/bund. Able UK withdraw their application for
planning permission the same day and state that they propose to
rely upon their previous planning permission (now declared lapsed)
granted in 1997 which had lapsed (as a result of non-implementation)
in October 2002. The Environment Agency had been aware of the
fact that the permission was thought to have lapsed since as early
as 1 July 2003.
On 18 September we reported on the decision
by Able UK to withdraw its application for planning permission
to build a dry dock. Hartlepool BC subsequently confirmed that
Able had been officially informed that such a planning application
would require a full environmental impact assessment including
into any potential impacts on the wildlife site. The press release
is at:
http://www.foe.co.uk/resource/press-releases/ghost-ships-firm-ducks-env.html
Hartlepool's press release is at:
http://www.hartlepool.gov.uk/Press-Release/PRO39326%20-%20Council%20statement%20re.%20Able
%20UK.htm
On 22 September (having very recently obtained
a copy of the Environment Agency's decision document) Friends
of the Earth wrote to the Environment Agency informing them that
they had incorrectly carried out the assessment under the Habitats
Regulations by failing correctly to apply the law[4].
Our view was that the result of their having done so was that
MARAD could release the ships under a misapprehension that all
regulatory permissions etc were in place when in fact it was clear
that (a) not all of them were in place—eg, planning; and
(b) that some that were about to be put in place as a result of
the Agency's misinterpretation of the law would be granted unlawfully
and therefore could not stand. Friends of the Earth requested
the Agency urgently to contact MARAD to inform them of the position
and to request them not to permit the ships to leave in the absence
of which we proposed to take legal steps to clarify the position.
On 29 September the Environment Agency sent
an email to MARAD stating that they had not yet completed the
environmental assessment that they needed to carry out and advising
MARAD that the consequences of the ships being released before
permissions are in place is that the ships might be repatriated.
The Agency accepted Friends of the Earth's argument that an assessment
needed to be carried out in the manner indicated by us in our
letter of 22 September.
On 30 September the Environment Agency did grant
a modification to the Waste Management Licence increasing the
tonnage of waste from 24,500 to 200,000 tonnes. The Agency inform
Friends of the Earth that they have now carried out a new assessment
(Habitats Regulations) in accordance with the law and that having
done so have determined no likely significant effect and have
therefore proceeded to grant the modification. 30 September was
the regulatory deadline for the Agency to grant the modification.
(The modified licence has now been declared invalid (see below).)
Also on 30 September, Judge Collyer (Washington)
hears a case brought by US environmental groups seeking to quash
the decision of the USEPA permitting the usually prohibited export
of PCBs. Both Able UK and Friends of the Earth file evidence with
the US Court concerning the state of permissions in the UK. That
evidence is publicly available and can be provided to the Committee
on request.
On 2 October Judge Collyer in Washington allowed
four of the 13 vessels to set off from Virginia although she declared
the first two (now in Hartlepool) to be in a "dangerously
deteriorating condition". She granted a Temporary Restraining
Order preventing the remaining nine from leaving pending further
investigation and legal process.
On 3 October Friends of the Earth send a legal
letter before claim to the Environment Agency informing the Agency
that we would start proceedings against the Agency because the
modification (30 September) was (again) unlawful and invalid because
of the Agency's failure properly to carry out an environmental
assessment (under the Habitats Regulations).
Also on 3 October concerned Hartlepool residents
held a public meeting and voiced fears about the amount of asbestos
on board the vessels, which the company planned to put in a landfill
site.
On 6 October we issued a press release concerning
the legal challenge to the Environment Agency. The press release
is here:
http://www.foe.co.uk/resource/press-releases/environment-agency-faces-l.html
By way of response the Agency issued a press
release stating—"we are absolutely satisfied that we
have complied with all the necessary legislation and after working
with all the relevant bodies, have made the right decision that
ensures the environment is protected. We are an experienced and
competent regulator . . ."
Also on 6 October Hartlepool BC inform Able
and Able's legal advisers that it is their view that Able does
not have a planning permission to build the bund/dam. Simultaneously,
the first two ships (Canisteo and Caloosahatchee) leave Virginia
starting their journey to Teesside.
On 7 October Hartlepool BC inform the public
that Able do not have planning permission to construct a dry dock.
The press release is at:
http://www.foe.co.uk/resource/press-releases/ghost-ships-do-not-have-pl.html
Hartlepool's press release is at:
http://www.hartlepool.gov.uk/Press-Release/PRO39316%20-%20Statement%20re.%20Able%20UK%
20-%207%20Oct.%202003.htm
On 13 October, EU Environment Commissioner Margot
Wallstrom calls on the UK not to accept the ships, describing
the project as posing too great a risk.
On 17 October the second two ships, Compass
Island and Canopus, leave Virginia.
On 30 October, having given the Environment
Agency numerous opportunities to respond to our letter before
claim of 3 October Friends of the Earth issued legal proceedings,
filing papers in the High Court and serving on the Agency and
Able UK. Those proceedings concerned the lawfulness of the grant
by the Agency of the modification to Able's waste management licence
due to improper application of the Habitats Regulations (concerning
environmental assessment).
We issued a press release the same day announcing
the commencement of legal actions.
http://www.foe.co.uk/resource/press-releases/ghost-ships-do-not-have-pl.html
The following morning, 31 October, the Environment
Agency wrote to Friends of the Earth confirming that the modification
to the waste management licence was indeed invalid. The Agency
agreed to pay Friends of the Earth's legal costs. Friends of the
Earth's press releases are at:
http://www.foe.co.uk/resource/press-releases/environment-agency-backs-d0.html
The Agency's press release is at:
http://www.environment-agency.gov.uk/news/585469?lang=-e®ion=&projectstatus=&theme=
&subject=&searchfor=able+hartlepool&topic=&area=&month=
In that press release the Agency stated that:
"The authorisations relate to transfrontier
shipment (TFS) of waste for recovery and a modification of Able's
waste management licence to increase the amount of waste materials
permitted on the Hartlepool site.
The TFS approval was issued on an assumption
that all relevant permissions could be in place for dry dock dismantling.
The waste management licence modification was also granted to
Able on the same assumption, the Agency's assessment of environmental
risk having concluded that dry dock working would not give rise
to any significant effect.
It has become clear that several permissions
and plans, including planning permission, are not in place and
that dry dock working cannot be enforced.
In addition, legal advice has confirmed that
a licence modification cannot be used to increase the amount of
waste permitted on site. A new licence would be required with
new quantity limits in place.
Therefore the Agency's legal advice has confirmed
that the company's approvals are invalid.
Given the change to the waste management licence,
the other outstanding permissions required and the planning permission
situation, the Agency has advised Able that it should consider
its position regarding the handling of the US ships."
Also on 31 October, Hartlepool hold a full day
public meeting with presentations by concerned parties. Able UK
issue statement that "Able have all necessary licences and
planning permissions for the receiving, remediation and recycling
of the MARAD ships."
On 2 November, the Agency wrote to Able UK informing
them that the waste management licence did not (contrary to the
Agency's previous thinking) permit scrapping of ships and reiterating
that the transfrontier shipment of waste notification was also
invalid. Environment Agency also inform Able UK that it is their
understanding that the use of the modification process to vary
permitted tonnage to be received at the site (a term of the licence
and not a condition) would be unlawful and that Able would therefore
need to make a fresh application for an entirely new licence if
it wished to obtain a licence to receive sufficient tonnage to
carry out the work.
On 3 November, Environment minister Elliott
Morley urged the US to take back the vessels, which are by now
mid-Atlantic.
On 4 November Councillors in Hartlepool called
on transport minister Alistair Darling to prevent the ships from
entering British waters.
On 5 November the High Court in London blocked
any work on the ships when they arrive after Friends of the Earth
and three individuals brought an action against Able UK. Mr Justice
Maurice Kay granted an injunction (obtained by three Hartlepool
residents) preventing work from starting until at least 8 December
when preliminary legal hearing will take place. FOE press release
at:
http://www.foe.co.uk/resource/press-releases/ghost-fleet-injuncted.html
On 6 November the Mayor of Hartlepool calls
on Tony Blair to turn the ships back.
Later in the week commencing 17 November we
will issue a press briefing detailing international moves to destroy
remaining stocks of PCBs and to restrict the import and export
of PCBs. We will also provide further evidence concerning the
acknowledged toxicity of PCBs and putting in perspective the quantity
of PCBs contained in the 13 ghost fleet vessels. A draft of this
briefing will be forwarded to the Committee in advance of Wednesday's
hearing if it is ready.
17 November 2003
3 Judge Collyer described the first two ships (Canisteo
and Caloosahatchee) as being in a "dangerously deteriorating"
condition in her judgment in October 2003 following the injunction
application by US environmental groups. Back
4
In summary, the Agency had failed to consider the "in combination"
effects on the site. Specifically, they had considered only the
waste issues whilst the law required them to consider also the
environmental impacts of eg, constructing a cofferdam/bund. Back
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