CANK Note:
SUMMARY OF CANK’S CLOSING SUBMISSIONS
BY TOM HILL OF COUNSEL:
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1. Legal context of application
2. The nature of the proposed
development
3. Development plan context
4. Adverse impacts of
the proposed development
4.1. Visual impact
4.2 Public
Anxiety
4.3.
The resources and effectiveness of the EA
4.4. Risks
to public health
4.5.
BPEO, The Waste Hierarchy, The Proximity Principle and Regional self-sufficiency
4.6. Need
4.6.1.
Cement Production Need
4.6.2.
Waste Need
4.6.3.
Company Need
4.6.4.
Alternative Sites
4.7. Employment Need
4.8. Emissions
Reduction Need
5. CONCLUSIONS
1. Legal context of application
The case of R v Durham CC ex parte Lowther was relied
upon as a proposition that the use of alternative fuels did not constitute
a material change of use. The case did not establish that as a generally
applicable proposition. The Padeswood application is fundamentally different
in scale and character from the Durham case.
2. The nature of the
proposed development
The truly massive size and bulk of the proposed buildings, the public
perception of the new plant as a hazardous waste processing facility, and
the capacity of it to greatly exceed the stated anticipated output of 750,000
tonnes per annum put the proposal in a different league to that presently
on site, and a fundamental reappraisal is required of its appropriateness
in this location.
3.1. Any proposal for development on the site
should comply with policy G1 in the Alyn and Deeside Local Plan, which
contains
a number of criteria, including:
"(a) The development should harmonise with the surroundings by suitable
siting, design, scale and
external appearance;
and
(b) The development should not have an unduly detrimental effect on the
amenities of people living
nearby".
3.2. Given the very different scale and character of the proposed development, it would plainly conflict with these criteria.
4. Adverse impacts of the proposed development
4.1.1. Comparisons with Cape Canaveral have been made and are entirely valid;
4.1.2. Proposal would
be located in a rural area and in a geographical "basin"
or "bowl", and CC’s own landscape
witness described the tower as “very massive.”.
4.1.3. The 5 leading planning officers of FCC were against the proposal on landscape grounds.
4.1.4. The £150,000
planting budget is pitiful considering that CC has very little land of
its own, and this figure has to
include land acquisition costs.
4.2.1. Public anxiety
about a proposal is a material planning consideration - see Newport
BC v. Secretary of State for
Wales and Browning Ferris (1998) Env. LR174.
4.2.2. A 9,000 signature
petition was presented to the Inspector by Cllr Woolley and countless
letters have been sent to
him and to the Assembly;
4.2.3. Castle Cement's
track record at Padeswood is unenviable - over 250 (self-reported) unauthorised
emissions over
4 years due to very poor standards of housekeeping. Even during the Inquiry
Castle received two further criminal
convictions and substantial fines and costs awards.
4.2.4. It is hardly
surprising that local people are fearful of an operator which cannot run
a conventional cement kiln
satisfactorily being let loose to run a far more complex and potentially
hazardous process. It took from 1986 to
1991 for CC to get its Ketton plant running properly.
4.2.5. There are enormous
commercial advantages for cement kiln operators in the proposed use of
Cemfuel and other
waste fuels - they get paid to dispose of them.
4.2.6. There was evidence
that hazardous wastes are being imported into this country and illegal
imports may find their
way into kiln fuels;
4.2.7. Cemfuel batches will not be subjected to sampling analysis until after those batches have been burned.
4.2.8. No continuous
monitoring is available for dioxins, heavy metals or ultrafines - so public
concern cannot be allayed
in this way;
4.3. The resources and effectiveness of the EA
4.3.1. No part of these submissions are intended to be a personal criticism of the Environment Agency.
4.3.2. On average
an EA inspector at the Buckley office would be responsible for the day-to-day
regulation of 17
installations and 20 radioactive sites (hospitals) across N. Wales.
4.3.3 The limestone
store was a "major source" of fugitive emissions from the
site, and yet remains an unresolved
problem despite the EA being the regulator of the site for 5 years with
powers to require BATNEEC to be applied
for the stored enclosure.
4.3.4. EA is largely
dependent on CC’s self-reporting of malfunctions and/or complaints from
the public, not on EA’s
own inspection.
4.3.5. Despite the
fact that the Padeswood
site is the 11th highest emitter of dioxins of any prescribed process
in England
and Wales, EA have still not considered the conclusions in a CC report
on dioxins received in June 2000;
4.3.6. EA has not monitored air quality around Padeswood other than in 2000 in connection with this application.
4.4.1. CC relied
upon emissions guarantees from the plant manufacturers, which assume (and
were valid only for)
burning of conventional fuels;
4.4.2. No system has yet been designed for feeding Profuel/tyres into the kiln;
4.4.3. No independent
or EA sponsored comparative test – N.B. - USEPA Draft Report (Dr Howard's
Reference 6 -
also relied upon by Dr Kelly) that total dioxin emissions for kilns burning
hazardous waste were 90 x those burning
conventional fuels: see para. 5.1.4;
4.4.4."These plants
depend upon hundreds of motors and mechanical plant; things simply will
go wrong."
Mr. Weller (in answer to the Assessor);
4.4.5. The chemical
composition of waste fuels makes them significantly more hazardous than
conventional fuels in the
event of system failure;
4.4.6. Risks associated with ordinary operations - The EA does not regulate beyond PM10.
4.4.7. Ultrafine particles enable metals to travel through bag filters in vaporised form.
4.4.8. The potential exists for Air Quality Standards to be approached or breached even within authorisation;
4.4.9. EA is "not satisfied that the current modelling is accurate".
4.4.10. Mr. Barrowcliffe’s modelling ignored entirely the effect of the pre-heater tower on dispersion.
4.4.11. Remarkably,
risks from abnormal operations were ignored by CC, notwithstanding known
incidents of spillage of
Cemfuel at other CC plants, and the increased toxicity of CKD and the proximity
of residential properties to the
site.
4.4.12. The presence
of a vulnerable population already exposed to emissions for 50 years was
ignored by the CC
witnesses and Dr. Roberts.
4.4.13. Dr Kelly did
nothing but rely on Dr Roberts, who had done nothing in considering local
health conditions - his
60-page proof of evidence contains not a single item of data on the health
of the local population;
4.4.14. Dr Kelly’s answers were evasive and her evidence selective;
4.4.15. Dr Roberts swallowed whole Castle’s data and assumptions – without their peer review;
4.4.16. Dr Howard
alone saw fit to consider local health issues, and found clear evidence
of elevated levels of respiratory
cancer;
4.5. BPEO, The Waste Hierarchy, The Proximity Principle and Regional self-sufficiency
4.5.1. Despite these matters being at the heart of waste strategy, CC ignored them.
4.5.2. FCC accepted their relevance, but failed to apply them.
4.5.3. It is plain
to see that the proximity principle is highly unlikely to be satisfied
in this case:-
4.5.3.1.
Cemfuel will come from Solrec at Heysham Sunderland and Rye and Safetykleen
at Dinnington, S Yorkshire;
4.5.3.2.
Tyres will come from Grantham and Nottingham/Derby;
4.5.3.3.
Profuel will come from Greater Manchester, Leeds/Bradford and the Midlands.
4.6.1. Cement Production
Need
There is no evidence that the new plant is needed to satisfy any shortfall
in UK cement production capacity.
Indeed the reverse is true - the UK has excess cement producing capacity.
Padeswood cement is not unique;
4.6.2. Waste Need
There has been no examination of alternative means of waste management
for the waste streams involved;
4.6.3. Company Need
Stated but not justified;
4.6.4. Alternative Sites
Despite being required to consider this by the Environmental Assessment
Directive and the UK Regulations, CC
failed to demonstrate that they properly considered this;
4.7.1. CANK do not desire the loss of jobs at Padeswood.
4.7.2.
Indeed, the Norton Rose letter of 4.9.00 suggested that they were not at
risk but that position was turned on its
head by Mr. Weller;
4.7.3. As for the numbers of jobs at risk, the figures change throughout Castle’s documentation;
4.7.4.
What
is clear is that any loss of jobs would not be immediate but gradual as
existing plant is run to the end of its
useful life;
4.7.5.
Flintshire is plainly booming and there is no evidence that the loss of
CC at Padeswood would halt or reverse
this now well-established trend;
4.7.6. No urgent employment need can be said to exist in this area.
Castle’s comparison of emissions
from K1 – K3 with those from K4 is a spurious exercise - The EA will not
permit K1 –
K3 to continue to operate
as they have been.
5.1. The impacts of the proposed development
would be substantial and wide-reaching – directly impinging on the lives
of
whole
communities and many thousands of people.
5.2. The severe visual impact (even admitted
by Mr Moggridge to be a “significant” and “negative”
effect) the manifest
(and justifiable)
public anxiety already demonstrated; the potential risk to the health of
the neighbouring population and
the direct
conflict with key principles of national waste policy are matters to be
accorded great weight in the planning
balance.
These are serious issues.
5.3. By contrast, the partially explained
“need” for this proposal as part of Castle’s own internal strategy
and the possibility
of the
gradual and eventual loss of 200 jobs in an area which is booming (with
hundreds of unfilled vacancies and a
stream
of good jobs news) do not amount to considerations of comparable importance.
They are plainly insufficient
matters
to warrant the setting aside of soundly based objections to the development
in the public interest.
5.4. It would be a strange result indeed, if planning
permission were granted for a development for which there is
no
public interest need and which gives rises to powerful public interest
objections purely to protect the
interests
of a company or its employees.
THOMAS HILL
4-5 Gray’s Inn Square
LONDON WC1R 5AY
10th January 2001