Select Committee on Environment, Food and Rural Affairs Written Evidence


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).

    —  Emergency planning.

    —    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


 
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