Memorandum submitted by Cyfeillion y Ddaear,
Welsh Groups Network (X14)
PREAMBLE
We work with community groups in Wales, continuing
the former FoE Cymru work on toxic waste issues. We helped Phoenix
present a case at the Padeswood Cement Kiln Inquiry (opposing
the use of hazardous waste fuels) and submitted an objection to
the Environment Agency's proposals to revise the Cement and Lime
Kiln protocol to facilitate fuelling with hazardous waste.
EXECUTIVE SUMMARY
We are concerned about the use of cement kilns
as hazardous waste incinerators. We recall that predecessor environment
committees conducted two inquiries into the regulation of chemical
waste fuelling of the Ribblesdale (Castle Cement) kiln and were
severely critical of the Environment Agency. While the committee's
strictures caused a tightening up of the regulation, with introduction
of a special Protocol for the authorisation process, the EA in
2004 is seeking[39]to
virtually abolish that Protocol. There are two crucial points
here:
— The EA's motivation is to promote
the disposal of various wastes, including hazardous wastes, in
view of the Landfill directive's restrictions on tyres and hazardous
wastes that has created a shortfall in capacity.
— In proposing substantial weakening
of the Protocol, the EA is withdrawing a promise made to the Commons
Committee without submitting a case and without seeking parliamentary
approval.
We consider the EA motivation and promotion
of cement kilns for hazardous waste disposal is misconceived and
breaches adopted policies and legal processes. We therefore ask
the Committee to tell the Agency to withdraw their current proposal
and rethink their policy for waste co-incineration in cement kilns.
MOTIVATION FOR
CHANGING THE
PROTOCOL ON
WASTE FUELS
1.1 We know that the British Cement Association
have lobbied the DTI to direct the EA to change the SF Protocol,
arguing costs of trials and competitiveness of the cement industry
(eg letter of 13 September 2002 from the BCA to the DTI). Mike
Gilbert, chief executive of the BCA, said in their statement of
9 June 2004:[40]
"The Government, the Environment Agency
and the waste industry itself all agree that the cement industry
has an important role to play in the treatment of specific waste
streams.
While we want the permission process to be speeded
up, we are clear that that the protocol must continue to be rigorous
in its evaluation of different fuels and in ensuring no net detriment
to the environment."
The EA agrees (3.1 below) and uses the phrase
"no net detriment to the environment" as decision criterion.
It amounts to the curtailment of a proper appraisal process—which
should include the precautionary principle; waste policy with
the requirement to determine the BPEO; the essential role of the
public in decisions involving judgement, especially on risk assessment
and health impact assessment (sections 4, 5, 6 below).
1.2 Standards for co-incineration of hazardous
wastes in a cement kiln are worse than for waste incinerators—much
less stringent limits for particulates, nitrogen oxides and sulphur
dioxide. The less stringent standards imply an extra economic
incentive for toxic waste producers to use co-incineration instead
of the dedicated waste incinerators, getting away with extra pollution
of the environment. Permitting hazardous waste as fuel would by-pass
planning laws—those implementing the European EIA and COMAH
legislation—and thus prevent local planning authorities
exercising their responsibilities over hazardous industry (sections
4.3 and 8 below).
1.3 Laxity over particulate emissions is
particularly serious, as the mass limit gives virtually no control
of ultrafine particles which are relatively rich in toxic metals
and halogens, avoid the bronchial filter, and penetrate deep into
the human lung. Hazardous wastes used as fuel generate heavier
loading of such toxins.
THE REASONS
FOR THE
EXISTING PROTOCOL
ARE STILL
VALID
2.1 The 2004 document reads (s 4.22):
The Environment Agency considers . . . substitute
fuel for the first time or as an additional fuel does not warrant
the automatic status of "substantial change", as the
proposals are not likely to entail significant negative effects
for human beings or the environment.
Nowhere does the document explain why raising
"nationally important issues" or, "influence (on)
formation of Agency policies" of the existing protocol (s
3.4) are not now included as relevant.
2.2 The existing Protocol sets out arrangements
for public consultation at a level above that which is provided
for in statute in order:
— to facilitate a wider and better
informed consultation process;
— to demonstrate to the public that
a thorough and scientific consideration of the issues has been
undertaken; and
— to show the public that a sound and
lawful determination of each application has resulted.
The intention was "to ensure that Agency
decisions are better informed and lead to greater public confidence
in the decision making process" (s 3.5 of existing Protocol).
Nowhere does the document explain why these intentions are invalid
and to be disregarded.
2.3 The existing Protocol also states that
the use of substitute fuel which is "waste" is an operation
for the "recovery" of waste for the purposes of Waste
Management Licensing so that decision-making should implement
relevant requirements of the National Waste Strategy. This means
in particular the determination of (site-specific) BPEO for the
particular waste via an open systematic, consultative process.
2.4 The existing Protocol contains an Annex
detailing extended consultation as a 3-stage process. In the new
document, any such Annex or reference to an alternative has disappeared,
leaving just the vague wording "extended consultation".
2.5 The omission of all these points, reasons
and assurances on extended consultation is highly objectionable
and adds evidence that the consultation on changing the Protocol
is not open and genuine.
NO NET
DETRIMENT
3.1 In its consultation document, the EA
argues (s 3.19) that:
An increase in the use of such fuels in kilns
is likely to make a significant contribution to the achievement
of targets identified in the Government's Waste Strategy. Experience
has shown that the use of substitute fuels has resulted in no
net detriment to the environment when compared to operation with
conventional fuels.
However, the Agency failed to supply that information
when asked, and failed to review it for the public consultation
and in support of its proposed retraction of its promise to parliament.
A European Commission study[41]shows
the claim of experience is seriously suspect; in particular, the
Commission's report says cement kilns give higher emissions of
mercury, a neurotoxin having significant adverse effects on infants'
brain development.
BASIC ASSESSMENT
4.1 The Agency is required to use the Precautionary
Principle when "science" is inconclusive, but in practice
uses an outdated version. It should use the EC/Nice Treaty formulation
of the Precautionary Principle (PP):
a precautionary approach must be paramount, as
opposed to acting only where proof or very strong suspicion of
harm can be demonstrated. The Precautionary Principle should be
applied where the possibility of harmful effects on health or
the environment has been identified and preliminary scientific
evaluation proves inconclusive for assessing the level of risk.
Account should be taken of social and environmental costs in examining
the level of risk, but the protection of public health, including
the effects of the environment on public health, must be given
priority.
4.2 The parliamentary committee recommended
in 1997 "The Government should carry out a survey of health
effects in the vicinity of cement kilns."(s 124). The Agency
has done some relevant studies since then, so should have summarised
the results and given references on the critical health issues,
particularly as the results have not been subject to public consultation.
Independent studies using new bioindicators (eg Staessen et
al Lancet 2001; 357: 1660-69) conclude that "current
standards may not be protective".
4.3 The UK is in breach of the EIA (Environmental
Impact Assessment) directive, for not including EIA in decision-making
on licenses, with particular reference to waste-burning in the
Ribblesdale cement kiln. The Commission announced this in their
statement IP/02/1102 of 19 July 2002 Commission acts against UK
. . . for non-compliance . . . which said "the failure to
undertake an assessment in this type of case is in part a consequence
of the United Kingdom restriction of application of the Impact
Assessment Directive to land-use planning decisions, an approach
which the Commission considers as too narrow". The decision
to take infringement proceedings against the UK was confirmed
in IP/03/1070 of 22 July 2003.
4.4 The Environment Agency gives a faulty,
non-government version of the Waste Hierarchy, which it says[42]
it uses as a general guide to selecting the best option for dealing
with waste. Equating recovery of materials with recovery of energy
is contrary to the UK's Waste Strategy and ignores the toxic effects
of emissions, products and residues, as well as the low efficiency
of energy recovery.
4.5 The EA determines the BPEO via an internal
technocratic evaluation, not via the Royal Commission's consultative
stakeholder process, endorsed in the Waste Strategy 2000 (5.1,
also 7.5 below). For the Westbury kiln decision on trialling Cemfuel,
the EA refused any kind of BPEO evaluation. In a hazardous waste
incinerator, the toxic ultrafine particles (1.3 above) tend to
be trapped in activated carbon and/or ceramic filters, so this
would constitute BPEO for disposal of the unrecyclable fraction
of Cemfuel.
FAILURE TO
IMPLEMENT NATIONAL
WASTE POLICY
5.1 The existing protocol explained that
the use of "waste" as substitute fuel is legally classed
as "recovery" of waste, so that policies have to comply
with the Waste Framework Directive and associated plans. These
include Waste Strategy 2000 and Wales's Wise About Waste and have
particular requirements on consultation (see below). In respect
of hazardous waste, Waste Strategy 2000 is clear:
"Reducing the amount of hazardous waste
produced is a key waste management priority."
5.2 The Environment Agency accepted this
in Hazardous waste: A growing challenge (2004), saying it would
work to:
"reduce the production of hazardous waste
at source (and to) encourage re-use and recycling".
5.3 Yet the EA allows (even promotes) the
burning in cement kilns of Cemfuel, composed largely of recyclable
solvents (at Ribblesdale, in the new IPPC for Padeswood, in trials
at Westbury kilns). The Environment Agency's own Technical Report[43]
asserts "recycling of solvents is environmentally preferable
to incineration on almost every count." The only exception
is waste chemical solvents contaminated with persistent pollutants,
such as PCBs and CFCs, and then the recommendation is destruction
in a Hazardous Waste Incinerator. The Report does not give incineration
in a cement kiln as the BPEO for waste chemical solvents.
VITRIFICATION OF
NON-RECYCLABLE
TOXIC WASTES
IS HELD
BACK
5.4 High temperature vitrification is an
alternative process for destroying hazardous waste and locking
toxic metals into a leaching-resistant product. We know of a company
(Glaztek) that has been trying to set up to use a Dutch glassification
technology (Alkali Slag Cement Process Technology) [44]and
producing useful building materials (tiles, cement alternative,
etc). The Welsh Development Agency has been unhelpful, despite
the potential and the obvious need, so did no technical assessment
nor helped find a site. The company offered to deal with 150,000
tonnes of hazardous tarry waste on the derelict Phurnacite (ex-smokeless
fuel) site, but the WDA failed to disclose this and pressed on
with their plan to transport the wastes to landfills in England.[45]
The EA participated in this decision and informed the planning
authority it is the "BPEO".
PROPOSAL TO
DROP ANY
CV (CALORIFIC VALUE)
CRITERION
6.1 The EA proposes to cease using calorific
value as a criterion to prevent cement-makers taking wastes for
disposal rather than as a fuel. The clauses proposed[46]
readily allow this abuse:
(iv) the main purpose is the generation of
heat;
(v) the amount of heat generated, recovered
and effectively used is greater than the amount of heat consumed
in its use; and
(vi) the principal use of the waste is as
fuel.
As the document's previous section (4.6) says
It is therefore important, when adapting (sic!)
the Environment Agency's position on calorific value, to ensure
that "disguised disposal" (making the kiln a Waste Incineration
Directive "incineration plant") is not allowed.
6.2 We agree this is important. "Recovery"
and "disposal" are legal categories and Directive 75/442/EEC
Article 3 contains a preference for the recovery of waste compared
to its final disposal. Without a CV criterion, disguised disposal
is not prevented, indeed the cement kiln can take a lot of low
CV wastes and/or can be run inefficiently in energy terms just
in order to gain the income from disposing of those wastes. The
EA's excuse—that its above criteria are based on the recent
ECJ judgements—is unacceptable, as others in Europe have
addressed the challenge of defining "credible recovery".
USE OF
VALUE-BASED
JUDGEMENT
6.3 Over-reliance on technical models and
assessments is another fault of the Agency. EA Wales rely on a
narrow toxicology approach to health impacts, which has false
precision, ignoring what is unknown or cannot be measured. The
National Assembly's report on the Nantygwyddon Investigation (Purchon
report 2001) was critical (s.6.5) of the EA's claim to approach
health impacts via "sound science" of pollutants. The
EA ignored teratogenic harm (affecting the developing foetus)
and hormone disruption (Purchon report s.5.1), which potentially
result from trace chemicals and not from the standard air pollutants
considered by the EA.
6.4 The EA not only claim spurious accuracy
but also conceal the essential judgements that need to be made
in consultation with the public via stakeholder processes. The
EA virtually ignore their own "Risks and Values" (April
2000) which stressed the need to change from a technocratic to
an open public-involvement approach, saying the following points
expand out from the EA's legal duty of information provision:
— giving people more confidence in
our decisions;
— finding out about public preferences
and tapping into a wider knowledge base;
— allowing public debate to influence
EA decision frameworks; and
— engaging in public debate about environmental
issues.
6.5 For the EA, health impact assessment
is still a technocratic process (as is their BPEO determination—4.5)
whereas the Welsh Assembly and the Department of Health both require
an open deliberative process involving the public.[47]
RETRACTION OF
PROMISES TO
PARLIAMENT ON
CONSULTATION
7.1 The Agency's specific assurances, in
the EA's June 1997 response to the House of Commons Environment
Committee Report on the Environmental Impact of Cement Manufacture
(5 March 1997) said (s 39-41):
"While each application must be judged in
its own right, the Agency proposes to ensure that full public
consultation is undertaken for all applications, whether or not
they involve `substantial change'".
7.2 The Parliamentary inquiry into the Environment
Agency (House of Commons Environment, Transport and Regional Affairs
Committee sixth report, May 2000) said:
We welcome the Agency's moves towards becoming
more directly accountable to local communities by means of public
meetings and the new Selected Licence Application Procedure. It
is very important that where there is controversy over a site
regulated by the Agency, or a new licence application to the Agency,
that the Agency be active in meeting local concerns. The fiasco
at Castle Cement in Ribblesdale must not be repeated elsewhere.
Agency action in this area should therefore continue and be extended,
particularly to ensure that mechanisms to consult and reassure
the public are available for existing sites as well as for the
new applications to which the Selected Licence Application Procedure
applies. This should be an important part of the raising of the
Agency's public profile and the gaining of public recognition
and acceptance for the Agency, which we recommend at the beginning
of this Report.
7.3 The Agency's response on this recommendation
read (July 2000):
We share the Committee's recognition of the importance
of responding to public concerns over controversial existing or
new sites. We are pleased that the Committee acknowledges the
steps the Agency is taking to provide better mechanisms for involving
the public by means of the new procedure for selected licence
applications.
7.4 Note the above references to SLAP (Selected
Licence Application Procedure), the title then given to extended
consultation. Its omission from the 2004 document confirms that
the EA is retracting its promises to the Parliamentary Inquiry
(7.2 above).
7.5 In the 2004 consultation document, the
EA propose (4.32) "to apply the standard statutory requirements
for consultation" which means reversion to the statutory
minimum. This contradicts the Aarhus Convention on enhanced public
participation to which the UK is a signatory. The offer of extended
consultation in undefined "appropriate" cases is reversion
to old authoritarian practice that fails the tests of openness
and transparency.
— The criteria mentioned in the
existing Protocol (2.1,2.2) are still valid; we picked out "nationally
important issues", "influence (on) formation of Agency
policies", "wider and better informed consultation process",
"ensure Agency decisions are better informed", "and
lead to greater public confidence in the decision-making process".
— Since the use of wastes as fuel
count as the "recovery" of waste for the purposes of
the Waste Management Licensing legislation, it is covered by the
English and Welsh waste plans (5.1). This means that, in considering
the granting of an authorisation to use substitute fuel which
is waste, the BPEO (Best Practicable Environmental Option) has
to be determined via an open, systematic, consultative process
(the Royal Commission definition).
— For hazardous wastes, decisions
have to meet special planning legislation stemming from the COMAH
Directive 96/82/EC (8.1). There is a requirement for public consultation
where changes increase the risk or consequences of a major accident.
BYPASSING HAZARDOUS
INDUSTRY LEGISLATION
8.1 Furthermore, for hazardous waste used
in cement kilns, planning authorities must have regard to the
objectives of COMAH Art.12, including prevention of major accidents
and limiting their consequences, via legislation on:
— Unitary development plans, which
should contain policies on siting where hazardous substances are
used or stored (Planning Policy Wales 7.5.2).
— Hazardous substances Regulations
(issuing Hazardous Substances Consents).
It would make nonsense if the EA were able to
bypass all this legislation and decision-making by local authorities,
by granting a license to use hazardous waste fuels. Apart from
the dubious legality, it would be quite unacceptable for a new
Protocol to deprive the public of their consultation rights under
COMAH.
9.1 We believe the current Protocol for
use of wastes in cement kilns, particularly hazardous wastes,
should be retained. Any change breaks the promise to the House
of Commons. We argue that the EA proposal should in any case go
back to Parliament and the Welsh Assembly. We therefore ask the
Committee to tell the Agency to withdraw their proposal and their
whole policy to facilitate the co-incineration of hazardous wastes
in cement kilns.
9 October 2004
39 Proposals to Revise the Substitute Fuels Protocol
for use on Cement and Lime Kilns-Consultation Paper Env. Agency
2004, www.environment-agency.gov.uk/yourenv/consultations/743155/?version=1&lang=_ Back
40
http://www.cementindustry.co.uk/Docs/SFP%20BCA%20Press%20Release.doc Back
41
as summarised in the ENDS Report (Environmental assessment of
waste-derived fuel production and use, September 2003). Back
42
ibid s3.4. Back
43
EA Technical Report P274 (Substitute Liquid Fuels Used in Cement
Kilns-Life Cycle Analysis, ISBN 1 857 05079 7). Back
44
Licensed by APM Consultants (www.apmconsultants.nl); process summary
on http://www.ircscotland.net/technology_trade/techalert_item.cfm?uuidTechAlert=CAC6429D-2B33-DE5E-D1177A23A92F8AB3 Back
45
report pre-Glaztek on <www.the-environment-council.org.uk/templates/mn_template.asp?id=22> Back
46
ibid s4.7. Back
47
Developing Health Impact Assessment in Wales, National
Assembly of Wales, 1999. Back
| 
