CASTLE CEMENT LIMITED INQUIRY
CLOSING SUBMISSIONS ON BEHALF OF
ENVIRONMENT AGENCY WALES
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1) Stance of the EAW
2) Enforcement & Monitoring
3) The IPC/IPPC Applications
4) Conclusions
1.1 It is not the role of the EAW to
advocate a case at this inquiry, rather it has sought to be represented
in order to assist
the inquiry
and to seek to answer any questions put by any party to the inquiry which
is relevant.
It is to be
hoped that that aim has been achieved.
1.2 It is not the role of the EAW to
seek to ‘police’ the areas of debate at the inquiry in order to ensure
that matters which
lie beyond the
remit of the planning system are not discussed. Indeed a great deal of
evidence has been given which
might objectively
be thought to relate rather more to the pending IPC application and the
likely IPPC application(s). The
EAW is nonetheless
confident that the Inspector and the NAW will bear carefully in mind the
guidance given at 6.1 of
Planning Guidance
Wales.
1.3 If permission is granted then CCL
will still need to successfully progress an IPPC application in order to
implement its
proposals. Indeed
as properly accepted by CCL it will need to obtain IPPC approval in the
immediate future whatever
the outcome
of this inquiry.
1.4 The EAW will of course be informed
in those decisions by matters which have been raised at this inquiry, together
with
all representations
made to it during the consultation processes of the IPC/IPPC applications.
To that end the NAW can
be re-assured
that where debate at the Inquiry has covered issues normally considered
by the EAW then it will have
been nonetheless
worthwhile.
1.5 Ultimately however this inquiry must
approach the application before it upon the basis that the EAW will perform
its
statutory responsibilities
diligently and properly. In other words that the pollution control of Part
I of the Environmental
Protection Act
1990 will operate properly insofar as it relates to this application. Indeed
if the NAW is in doubt as to
the EAW’s ability
to deal with the application fairly then it will no doubt be fully aware
of its powers to recover
determination
of the IPC/IPPC applications itself.
1.6 That said the EAW in accordance with
National and European guidance fully recognises that the process which
is
proposed is
one which in principle is capable of being authorised. That does not mean
that any indication can be given
as to the likely
outcome of this proposed process. That is not because the EAW is reticent
at that stage, but rather
because the
determination process is far from complete.
1.7 Firstly the IPC application is all
but certain to be overtaken in due course by an IPPC application. Secondly,
even
though a very
considerable amount of work and information has been done and provided
by CCL it is the view of the
EAW that is
not yet in a position to determine the IPC application and further, detailed
information is to be requested in
the near future.
Indeed a further element is that in the present form of the information
its content is somewhat opaque to
even an informed
member of the public, such that the EAW sees considerable merit in creating
a comprehensive
document together
with a non-technical summary which will, it is to be hoped will prove to
be rather more digestible to
the public.
1.8 Thirdly before any decision is reached
there will be a further opportunity for public comment upon the application
which
will be taken into
account by the EAW. The EAW is under no illusions that as a result of this
inquiry that many parties
that have not hitherto
made representations will wish to do so.
1.9 Once a decision has been arrived at by
the EAW that decision will be set out in a Decision Document which
will also
explain its rationale.
1.10 As to the matters of particular relevance to the inquiry,
it is understood from the nature of the cross examination of Mr
Morris that they are broadly
the following areas:
(a) The ability of EAW to monitor and enforce the process at Padeswood,
historically and in the future – ie has
the site been operated as the EAW expects and has there been any improvement;
(b) What is the likely progress of the IPC/IPPC applications – in particular
will the site be authorised to burn
non-conventional “fuels”;
1.11 That is not intended to be an exclusive list of issues,
and in respect of the remainder of issues the EAW relies upon the
evidence of Mr Morris together
with its supplementary submissions, in particular those that deal with
specific issues raised
during the course of the
inquiry and Mr Morris’ evidence, it is not proposed to repeat those matters
in closing. As to the
issues identified at para
1.10, the EAW would wish to make the following submissions in addition
to its evidence.
2.1 There can be no doubt that the site has not operated
as the EAW would have wished it to operate in recent years. As
detailed in the evidence
there have been a number of Inspections which have resulted in requests
for action to be
taken. There has also been
formal enforcement action taken, as well as two successful prosecutions.
2.2 It is the EAW’s firm submission that its monitoring
of the premises in recent years has been effective and that both as a
result of its actions and
CCL’s improvements that the operation of the site has altered for the better
over recent years.
Indeed, whilst some significant
problems remain, such as fugitive dust emissions, the site and the process
overall have
shown a marked improvement
since the formation of the EAW.
2.3 For example there has been a dramatic reduction in
the number of ‘trips’ from the electrostatic precipitators
as a result of
CCL working together with the
EAW. Accordingly, when considering what Mr Allen refers to as ‘unauthorised
releases’ it is
important to note that a significant number of those ‘releases are as a
result of the operation of the ESPs
which has now been largely addressed.
2.4 Mr Morris was questioned as to the resources that the
EAW was able to direct to the enforcement and monitoring at
Padeswood. Whilst it is true that
there are 5 inspectors in North Wales to monitor around 80 authorised processes
in the
region the EAW have considered
it proper to direct significant resources to CCL’s site. For most of the
last year Mr
Morris has worked exclusively
upon the site and is likely to continue to do so during the application
process.
2.5 Thus whilst at this site, in common with most other
authorised processes in the UK, there is a large reliance upon ‘self
reporting’ that
should not be viewed of itself as a weakness in the system of monitoring.
To fail to report matters
properly is considered by the
Agency and the Courts to be a very serious matter indeed. Moreover, there
is empirical
verification of some elements
of the site, together with regular inspections and a significant amount
of public reporting.
Thus the Black Brook incident
was first notified by CCL, then inspected by Mr Morris and then resulted
in public
complaint. The EAW therefore strongly
disputes the assertion put by Councillor Mia Jones that it is simply re-active.
Enforcement and monitoring is
a complex and ongoing process and it would be wholly wrong and misleading
to
characterise it as reactive process.
2.6 The EAW is self evidently concerned in relation to
certain aspects of the site operation – plainly it has not been idle in
terms of investigation, enforcement,
and even prosecution. However, the EAW accepts that there is a fundamental
difficulty with regard to the
running of the site which arises directly out of the vintage of the present
operation. Whilst there
remains, as Mr Morris readily
accepted, further scope for improvement the EAW recognises that significant
difficulties will
remain.
2.7 One of the clear advantages of the proposal is that
the ease of monitoring, and therefore of enforcement will be very
significantly improved, as identified
in Mr Morris’ evidence.
2.8 Finally on the issue of monitoring a response has been
made to the Times article which was put to Mr Morris.
3.1 As Mr Hill rightly observed, the present IPC application
is unlikely to ever result in the plant operating within the scope of
any authorisation granted pursuant
to it. That is because by the time even this part of the process is completed
IPC will
have been overtaken by IPPC, and
both the existing and the proposed processes will require to be authorised
under the
new regime.
3.2 Nonetheless CCL have submitted a staged IPC application,
effectively as a first step in determining the issues which
would, if successful, ultimately
result in an IPPC authorisation. That has enabled the EAW to make an informed
decision as
to what information is needed
to determine that application as well as any IPPC application.
3.3 As outlined above the outcome of that application cannot
be presumed and there is, in the view of the EAW a very
significant amount of technical
work that needs to be done before the application could be determined.
Moreover, and of
vital importance, that information
needs to be presented in a clear manner to enable the public to make informed
representations in the process
of public consultation.
3.4 On the information before the EAW, as stated in opening,
the process which is the subject of the application is one which
is in principle capable of being
authorised. However, no two sites, processes or applications are the same
and therefore
each needs to be assessed on their
own individual merits.
3.5 The IPC application proposes the use of ‘non-conventional’
fuels – in particular tyres, profuel and cemfuel. Trials of
profuel have been conducted elsewhere
and cemfuel has been authorised at Ribblesdale. That does not mean that
they will
be authorised here. However, if
the proposed fuel mix were used, on the evidence presently available to
EAW there
would appear to be a reduction
in the emissions of a certain pollutants. The fact that there is a difference
of view between
CCL and the EAW as to the whether
or not Cemfuel is hazardous waste or not, will not affect the IPC/IPPC
determination on the evidence
of Mr Morris. That is because the EAW will require the best available
technique to be
deployed regardless of its definition
under the HWID.
3.6 That said it remains the position that EAW is firmly
of the view that Cemfuel is properly a hazardous waste under the HWI
directive. That approach is the
subject of a High Court challenge whose result is unlikely to be known
by the end of the
inquiry, albeit that the NAW will
of course be informed of the outcome of those proceedings.
3.7 In order to inform the process, as set out in evidence,
the EAW has commissioned a number of studies to identify the
‘base line’ position
of emissions from the present process (appended to Mr Morris’ proof). That
is part of a process
which is ongoing and will continue
regardless of the outcome of this inquiry. Indeed that will inform the
future operation of
the plant, for example in seeking
to effect the reduction in dioxin emissions as anticipated in the report
submitted by CCL in
June 2000 to EAW.
3.8 At all events the outcome of the IPPC applications
either in respect of the present or the proposed process is
overwhelmingly likely to result
in improvements to the present position. That is as a consequence both
of the change in
legislative context as well as
the inevitable requirement to demonstrate that ‘BAT’ is being employed.
Moreover as Mr
Morris readily accepted there
remains scope for further improvements on the site.
3.9 As to modelling, the interesting debate as to the shortcomings
and advantages of the various models before the inquiry has
deliberately not been informed
by any view of the EAW. That is because as Mr Morris said all of the models
have certain
disadvantage, and it will, ultimately
be for CCL to demonstrate on the IPC/IPPC applications that the modelling
it has
undertaken has been sufficiently
robust. The present view of the EAW is that for the purposes of the IPC
(which it is
accepted is not to be taken as
coincident with the planning process) that the exercise has not yet been
completed.
3.10 As to the capacity of the operation, whatever the physical
capacity of the plant the application is for not more than
750,000 tonnes of cement
per annum. To operate the plant in a way so as to produce materially more
than that would
not be within the scope
of the authorisation and therefore CCL would be in breach. That said as
Mr Morris accepted it
would not be for the EAW
to seek to constrain the physical capacity of the plant within the terms
of the authorisation,
rather if CCL sought to
increase capacity that would require a further application.
4.1 As set out in opening it was the EAW’s intention to
be present and represented at inquiry to assist and also to answer any
matters which fell within the
scope of its area of responsibility. It was recognised at the outset that
the division between
planning and authorised processes
would not be one that is clear and obvious to the vast majority of the
public,
accordingly intention was to seek
to assist what is hopes to be an ongoing process of informed debate. It
is to be hoped
that those aims have been realised.
4.2 As to the planning process, the division in guidance
between the EAW’s responsibility and that of the NAW in
determining this application is
quite clear. The approach of Planning Guidance Wales (1999) 6.1 is
endorsed by the
EAW, namely that the decision
maker of any planning and land use decision can be confident that those
responsible for
other statutory control regimes
will ensure that they operate properly and efficiently.
4.3 Finally the EAW would re-iterate that in its role as
statutory consultee on the planning and land use issues that insofar as
the application impinges upon
its area of statutory responsibility that it does not object to the proposal
subject to the
imposition of conditions referred
to in its consultation response.
Paul G Tucker
4th January 2001
Counsel for Environment Agency Wales
40 King Street
Manchester
M2 6BA
-and-
5 Park Place,
Leeds,
LS1 2RU