Weighing Public Concern (A)
Health
    COMEAP Report
Visual Impact
Transport
    Transport - Conclusion
Habitats Assessment
Planning (A)
Chemfuel
Dioxin
Inadequate Environmental Statement
Planning (B)
Weighing Public Concern (B)
Alternative Sites
Air Pollution
    Plume Grounding
    Ultrafine Particles
 
 

Weighing Public Concern

The vast majority of the public were not made fully aware of this proposal and its implications by any authority or body including their own County Councillors.  Public meetings were not adequately advertised and methods used to alert the community were insufficient.

Flintshire County Council, The Health Authority and The Environment Agency, have not given enough consideration to the vast amount of public concern that this application has generated.  The public has been expected to understand a complex application with only very little understandable information, when the company has been allowed to present its application in stages because of its complex nature.  Maybe public participation was not an oversight by the authorities but was because they found it extremely difficult to understand and found it even more difficult to express any intelligent information to the general public.

The lack of understandable information forced Phoenix to research all aspects of this application and have consulted Castle Cement, Flintshire County Council, The Environment Agency, The Health & Safety Executive, The Met office, The Coal Authority, CCW, Agenda 21, The Recycling Officer, The Records Office, Libraries, internet sites, Doctors, Community Groups, Farmers, Television, Newspapers and have gained vital information from them and as many other sources as possible.  The only person who would not speak to us was The Medical officer for Health Dr Roberts who refused to assist us although The Health Authority was very helpful.

We as Phoenix feel that only through our hard work we have gained the information that failed to be provided prior to the Inquiry.  During the Inquiry under cross-examination Phoenix was asked about information given to the Tourist Board, this information (Estimated mass emissions including carbon dioxide, particulate matter, oxides of nitrogen and sulphur dioxide would increase by 32%  - an extra 161,150 tonnes annually) was in-fact taken from Castle Cements Stage 1 application.   The other information about emissions of heavy metals and dioxins from tall chimneys, carrying over 46 miles was taken from evidence given to the House of Lords.  We believe that this information was obtained from reliable sources and we were not misleading by quoting this information.

When certain opposition groups initiated a public debate the level of overall opposition was soon evident. Residents were appalled at the prospect of the continuous burning, transport and storage of such hazardous products in close proximity to their homes. Phoenix’s evidence proves that the opposition to this proposal has come from many thousands of people, who feel that their peace of mind, quality of life, safety and amenity are all under threat.

Castle Cement’s barrister questioned the number of letters said to have been received by the National Assembly to call in this application.  The number has been reported to be 25,000. This, however, can only be verified by the National Assembly who has informed us that the boxes are numerous and will take too long to count.  Phoenix has even offered to pay a visit to Cardiff to count them but this offer has not been accepted.

While this application was pending the approval of the conditions laid-down by the councillors at the planning meeting, (2nd Feb) information came to light about the dangerous ash at Byker which was contaminated by dioxins and at Aintree, where 18 cancer deaths were reported in one street half a mile away from an incinerator.  Are we the public are supposed to ignore all this information or is it more sensible to adopt a precautionary approach?  When Phoenix did embrace the precautionary principle and started to report our findings in the media, we were called scaremongers by Castle Cement.  . Isn’t this what happened in Aintree when they were campaigning to close the incinerator?  It was only after the incinerator was closed down that the cancer deaths in Haven St and a number of other deaths in the surrounding area came to light.

Our councillors totally ignored the above information and our fears and would not even postpone a decision on this application until more information was collected    Why did our councillors disregarded our fears, when they relate to National Policy which has been put in place to protects us. Isn’t this a dereliction of duty on their part?

A study carried out by Peak Associates Environmental Consultants Ltd into the number of justified public complaints that can positively be traced to Castle Cements plant at Clitheroe is unusually high.  In a three-year period some 475 complaints have been recorded which is unacceptably high and does not reflect a site where Integrated Pollution Control can be said to be working.   Video evidence from Mary Horner illustrated the plume grounding that takes place and the volume of dust that is released during a trip. The problems incurred at Clitheroe and the lack of a satisfactory air modelling for Padeswood has only added to the lack of confidence in this company. Castle Cement’s environmental expert, states that his figures are based on the manufacturers guaranteed performance of the kiln. Should the kiln fail, Castle Cement will be compensated.  Who will make guarantees to the local residents?  Who will compensate them for their loss of amenity, health, nuisance, noise, dust, traffic and falling property values?  Will we become the new Clitheroe?

To disregard this level of public concern by recommending in favour of this application will surely sentence all the concerned residents, up to 30,000 within a 5 km radius, to a future filled with insecurity, uncertainty and fears for their health, safety and well being.

Under Allan Watson’s argument on the public perception of risk (TCC Proof Ch.4, paras.1-6) the public concerns need to be properly weighed, based on an understanding of the factors influences and processes which together operate to create “public concern”.  One should ask if the concern is logical, based on public experience of the present plant, its operator and the regulatory bodies, and if it’s scientifically based, taking into account medical experts who disagree strongly with Dr Roberts and scientists who support Michael Meacher’s view on the danger of incineration products rather than Jim Morris.  The Inquiry therefore needs to consider under these heads the public concerns expressed to the inquiry:

            - Lack of seriousness in control of dioxins and similar toxic incinerator emissions
            - concerns over lack of enforcement of emission limits - exceedances running at 1 or 2   per week
            - hazardous wastes – with the responsible EA officer not knowing the composition of Cemfuel
            - major accident risk - with the responsible EA officer not bothering to consider COMAH
            - concern on protection of nature interests – with the EA unaware of the European sites and failure to represent
               CCW’s views to this Inquiry

Phoenix Coalition believes they have presented a strong case on behalf of public concern, which is a material consideration at this inquiry. We ask the Welsh Assembly to reject this application as a result of the overwhelming objections and evidence presented.

The National Assembly has worked hard to produce legislation, which shows their commitment to all aspects of Welsh Life. Please allow this legislation to be implemented in this case.

The public look to the Welsh Assembly as their only means of obtaining a professional and impartial judgement
 
 

Health

Dr Roberts wrote an eight-page report for the County Council in November 1999, this report did not mention once that the fuel proposed to be used is composed of hazardous waste.  In his report Dr Roberts refers to waste streams and Cemfuel as a mixture of various combustible liquid wastes.
This report also states his assessment does not take into account the effects of unauthorised releases, the effects of increased traffic locally or the contributions of non-stack emissions (from delivery and movements of materials around the site) and dust and particulate releases.  Given Castle Cement’s record of unauthorised releases and bad housekeeping, ignoring these emissions can only be seen as unacceptable bias towards the company.

For this inquiry Dr Roberts produced a 60-page report and again he did not once mention that the proposed fuel is a hazardous waste.  Under cross-examination he said that a Health Impact Assessment was not necessary yet it is Assembly policy do this.  In his report he makes reference to the issue of two important documents on Health Impact Assessments (HIA), one of which is Developing Health Impact Assessments Wales.   This is National Assembly Policy and the document makes clear its commitment to the use and development of H.I.A. Developing Health Impact Assessments In Wales states:

1.3 “There is no doubt that better tools are needed to enable us to predict the health consequences of policies in numerous areas.  Health impact assessment has been described as “an idea whose time has come” and its use as a tool to aid policy and decision-making must be tested”.

1.4 “The need for health and well being to be sustainable was emphasised in Better Health Better Wales.  This can only be achieved in the context of sustainable development and care for the environment.  Local Agenda 21 strategies have been adopted by local authorities in Wales to focus on sustainable development.  The degree to which policies, programmes and projects that impact on health produced sustainable health also needs to be assessed”

5.2 Where EIA’s are undertaken “it should be insured that health issues are adequetly covered”

The National Assembly make it quite clear in this document that they have a commitment to develop the use of Health Impact Assessments in Wales in order to improve the health of the population.   Dr Roberts quotes this document as important then does nothing to implement it 3.5.4 – 3.5.5  Dr Varley’s  evidence.   It was his duty to advise the Council and this inquiry that the EIA needed a full evaluation of the health and risk to health of the local population.

Under-cross examination Dr Roberts said he had not the time or the resources to complete a  full Health Impact Assessment, but it’s the company’s responsibility to assess health impacts for the EIA.  When further questioned about surveys he said data at ward level would take too long to compile.  According to the Better Health Better Wales consultation paper May 1998, multiple databases, surveys and systems such as HOWIS are to be used.  An existing study of long-term illness at electoral ward level has been carried out and illustrated in Better Health Better Wales.

The importance of outcomes to people and communities must be recognised and therefore their participation in the health impact assessment process is essential   During cross-examination Dr Roberts said he knew of the level of public concern yet he didn’t involve the public in his study, in-fact he refused to meet with Phoenix.  He attended very few meetings involving the public and was not present at the February  2nd planning meeting.
He also provided vital medical data to an American company retained by Castle Cement several days before it was released to status 6 parties.  This can only be seen as bias to Castle Cement and shows he cannot be regarded as independent witness.   Neither is it the behaviour of a public health professional whose responsibility is to protect and promote the health of the population.

In our opinion his first report was very confusing and alarming, causing wide spread concern in the local community when reported in the press.  The report quotes the findings of The Committee on the Medical Effects of Air Pollution (COMEAP) whose findings are based on numerous studies of very large populations exposed over long periods to air pollution from the burning of fuel in vehicles, households as well as in industry.

The COMEAP report quoted by Dr Roberts in his evidence states the following:

? Sulphur Dioxide is a respiratory irritant, especially in people with asthma, doesn’t have a threshold below which SO2 has no effect on health.  Significant increases in daily averages cause a small rise in deaths and increases acute admissions for chest problems for people over 65.  He doesn’t make clear what is meant by a significant increase and could be alarming to locals with asthma, heart and chest problems.

? Large increases in levels of NO2  (again not made clear) result in a small overall increase in deaths.
There is also a small increase in deaths, acute hospital admissions for chest problems and heart problems due to a significant increase in PM10 .

? Significant increases in levels of ozone result in small increases in deaths overall and acute hospital admissions for chest problems.

? Current medical knowledge does not allow us to estimate the effects on health of any specific levels of the pollutants dioxins and metals in the environment.
This is not exactly true, as Dr Howard’s evidence on dioxin shows, but the presents of many unknown hazards from ultrafine particles and trace chemicals means that he should not dismiss the dangers to health: a precautionary approach is essential.

Dr Roberts report goes on to state:

“Anxiety about the health effects of emissions from local sources of pollution may affect the mental and physical health of certain individuals. Anxiety may be exacerbated by episodes of visible pollution or odours, an absence of information on health or misinformation about the level of risk. Therefore minimising unauthorised releases, effective systems to respond to complaints about visible pollution or odour and availability of factual information on levels of risk and health effects are important”.

It is not surprising then that a high degree of anxiety exits in the local population since there has been an on-going odour and dust problem at Padeswood and uncertainty about the effects on health.  It is ironic that Dr Roberts advises information on health for the community and has failed to provide it.  He has also added to the misinformation about health due to his positive reassurances about the kiln 4 emissions whereas other health professionals have been more cautious.

Some of the local residents have lived for many years close to this plant that has such a poor record of environmental care and is 11th worst dioxin emitter in the UK.  He states information is important yet does not address this in his original report.
 
 

Dr Roberts used Ketton works as his model for emissions although Clitheroe also burns Cemfuel has a far worse record of justifiable public complaints (472 in a three year period) Mary Horner of the Green Party has shown video evidence of the plume grounding and dust trips which often occur at Ribblesdale.
 

Dr Roberts ignores the appalling record of complaints and plume grounding and only states that the COMEAP report on the Clitheroe did not indicate any concerns for health.  The government told us that beef was safe and now we know that a cover-up was introduced in order to safeguard the beef industry.  Contaminated fly ash from an incinerator at Byker was put on allotment and public paths exposing the local population to dangerous levels of dioxins. Residents in Haven Road, Aintree fought for many years to close down an incinerator close to them, sadly not before cancer claimed several lives.  These experiences should be a lesson to all concerned with this application where there is so much uncertainty and conflicting views on the health impact of this proposal.
 
 

1 Visual Impact

The proposed kiln 4 works are very different from the original cement  factory built after the Second World War. The proposed works will produce 3 times as much cement as the original factory as well as supporting a complex multi-fuel system based on waste materials.  In order to handle the receipt of materials and fuel, storage, transfer, process, finishing and the packaging activities required for 775,000 tonne of cement production per annum, the proposed works would change considerably.  The image of a simple factory in a rural setting, so eloquently provided in the preface to Mr. Moggridges evidence will in reality be a very large industrial complex which combines the handling and incineration of waste with cement production.  The nature, scope, size and height of the development is clearly evident in the plans and elevations provided in evidence by Castle Cement Ltd.  This will be no simple factory.

On the other hand, changes to the area surrounding the works have been minor.  The surrounding area is still open countryside which is generally farmed for dairy, beef and sheep production.  The local settlements have not noticeably encroached any nearer to the factory, neither has any other industrial development occurred. The works complex is still perceived from all directions as an industrial site surrounded by a rural landscape of impressive visual amenity.

The Director of Planning recommended refusal of the kiln 4 planning application in his report of 2 February 2000 because that was the only credible interpretation of the relevant planning regulations.  The height, mass and character of the pre-heater tower in particular render the kiln 4 development totally unacceptable in terms of visual impact.  It is also apparent that a large heavy industrial complex such as kiln 4 would be totally out of place in an otherwise unspoilt rural setting.  In particular, people living to the north and east of the works, in Buckley, Penymynydd and Penyfordd would suffer decades of visual blight from the works.

The relevant planning regulations at all levels, repeatedly emphasise the importance of two criteria in particular when considering the visual impact of a new development.  Specific references to the regulations are provided in our evidence. These criteria are the scale and the character of the development in relation to the environment in which it is placed.  Due to the absence of any serious criticism of our photographic evidence, we conclude that all parties agree that our evidence fairly represents what the pre-heater tower will look like in relation to the existing works and the surrounding area.  We have demonstrated conclusively that the proposed pre-heater tower is out of scale and out of character with the surrounding countryside.  We were not able to create images of the other proposed structures for technical reasons.   However, it is obvious that the sum total of all the proposed structures produces an industrial site which is also out of scale and out of character with its surroundings

Castle Cement has provided much detailed evidence on visual aspects but never gets to the essence of the issue i.e. providing evidence to demonstrate how the proposals comply with the relevant planning regulations.  They have provided many photographs of the works but not one which shows super-imposed images of the proposed new structures.  They have provided architects plans and elevations.  None of this evidence allows an assessment of how the proposed development fits into the surrounding area which is a fundamental planning requirement.  They provide evidence of how they can mitigate the visual effects of the new structures, for example by giving the pre-heater tower a vertical emphasis and giving the top of the tower an industrial character.  This sort of detail, normally so effective in blending new buildings into a man-made environment, is totally ineffective in mitigating the visual impact of such a huge structure in a rural setting.

The simple fact is that measures to harmonise or screen heavy industrial buildings within open countryside are ineffective if the buildings are significantly higher than the tree height. At the Padeswood site, proposals for on and off site planting are totally inadequate as screens to the pre-heater tower and the taller buildings. The offer of off-site tree planting by Castle Cement is little more than a public relations exercise.

 The only reasonable and logical conclusion that can be made when considering the visual aspect of the kiln 4 application is that the pre-heater tower is totally unacceptable due its proposed dimensions and alien character within the existing landscape.  The extent and nature of the proposed works complex as a whole must also considered in relation to its rural setting.  The planning regulations have been put in place to protect our enjoyment of the landscape and to create an environment attractive to residents, visitors, tourists and progressive business investment.  The effect of ignoring the regulations for a “one off” development such as kiln 4 is to put at risk the credibility of the regulations and more importantly their underlying philosophy, which is to create a clean and attractive place for work and recreational opportunities in the long term.  For this reason we ask the National Assembly to apply the planning guidelines for visual impact to this development and to refuse the application for the same reasons that were correctly applied by FCC when they refused permission in February 2000.
 

2 Transport

Inherent to the kiln 4 proposals is a huge logistical operation involving the transportation of bulk materials to and from the works at Padeswood.  The site is not located adjacent to its sources of raw materials or fuel. Additional cement clinker is imported from the Ribblesdale works near Clitheroe.  The finished product is transported to markets in the North West of England and the Midlands.  2.3 million tonnes of bulk materials will be transported a total distance of 11 million kilometres (approx) on the public highways each year if the kiln 4 development goes ahead.

Castle Cement Ltd have provided evidence to show that local highways and junctions will remain in capacity if and when kiln 4 is put into operation.  We do not disagree with this apart from the Penymynydd roundabout which is already at its capacity at peak times and will obviously suffer from the additional traffic from kiln 4.   We believe that the issue of capacity is only one aspect of the transport proposals and that there are other aspects relating to public concern and planning considerations.  Our evidence on transport provides an analysis of the wider transport issues, ones that Castle Cement ignored because they did not wish them to considered at this inquiry. We have concentrated our evidence on the following issues:

        1. The overall increase in HGV traffic to and from the works which will reflect the additional pollution, noise, dust,
            disturbance and nuisance suffered by local residents as a result of the kiln 4 development
        2. The impact of the proposal on the use of the rail system for delivering fuel to the works
        3. The logistical and planning considerations resulting from the transportation of waste materials to be burned in the new
            kiln
        4.  The additional traffic pollution created by the kiln 4 development

Castle Cement Ltd has repeatedly mislead the public, council officers and councillors as to the impact of traffic generated by the proposed kiln 4 development.   They have presented traffic figures which suggest only small increases in works HGV traffic.  In effect they compare the maximum existing daily movements over 4 days with the average predicted movements over 5 days and this masks the overall annual increases.

Taking the 1999 clinker production as the baseline, HGV traffic generated by the works will increase between 80% and 100% in the total number of loads, the tonnages moved and the distances travelled.  Castle Cement predict that the number of loads leaving and entering the works per 24 hours day for the kiln 4 operation will be 902 and we predict 938, which is an overall annual increase of 82% on the 1999 works output.  Castle Cement have raised their predicted increase of HGV traffic to 36% (from 12% originally) on a daily movement basis, still masking the actual overall increase of 82% per year.

An 82 % increase in Castle Cement HGV traffic means that the overall increase in HGV traffic on the A5118 will be approx. 20% on the sections east and west of the works entrance.  Since HGV traffic creates most of the pollution, dust and disturbance the recurring problems of this nature will increase by approx. 20% on the A5118.

The kiln 4 proposals will mean a reduction in fuels transported by rail and increase in road transport. Our calculations show that approx. 100,000 tonnes per annum of fuel currently brought in by rail will be transferred to the highway system. This is in direct opposition to current DETR policy of moving bulk freight from road to rail and creates more air pollution.  Castle Cement admit that their decision to move all materials by road is economic.

Castle Cement Ltd propose to obtain all waste materials to be burned as fuel from  sources which are most economically attractive, regardless of location.  This will almost certainly mean transporting used tyres, paper and plastics from the Midlands and South East of England.  The total distances required to transport alternative fuels for the kiln 4 development cannot be calculated accurately until the actual sources are known.  We predict that between 1 and 2 million kilometres per year will be generated by the transportation of waste materials used as alternative fuels.  This will create unnecessary pollution and road congestion and be in direct contravention of waste management principles i.e. regional self-sufficiency and the proximity principle as required by the PGG 10 guidelines and waste management legislation.
 

HGV traffic presently accounts for approx. 5.9 million kilometres (3.7 million miles) per year approx. We predict this will rise to 11.0 million kilometres (6.9 million miles) per year approx., an increase of 86 %.  This will create an additional 5,870 tonnes of CO2 gasses, with corresponding increases in other polluting diesel emissions. Compared to the proposed kiln the pollution from traffic is small but still significant.

In conclusion, we would ask the National Assembly to give very careful consideration to the following transport issues:

    1. Local residents and road users have suffered for decades from pollution, noise, dust and disturbance from Castle
        Cement’s HGV traffic.  This nuisance will increase noticeably.

    2. Castle Cement propose to move all materials by road for economic reasons.  They also plan to move waste materials
        over long distances to provide fuel for the new kiln, again for economic reasons.  The result of these plans will be to create
        unnecessary pollution and congestion when alternatives exist which are less environmentally damaging.  This is why waste
        management legislation and planning policy requires regional self-sufficiency and the proximity principle to be applied to
        the transportation of waste.

    3. Compared to the proposed kiln the pollution from traffic is small but still significant. The pollution from the increased
        traffic should be added to all other sources of air pollution when assessing the total air pollution created by the new
        works.  We have provided figures for traffic pollution in our evidence.
 
 

Habitats Assessment
We pointed out that the Inspector is a competent authority under the Habitats Regulations (as is Flintshire CC and arms of government like the Environment Agency) and required under s.3(4) to “have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of (his) functions”.  This means the Inspector must consider the impact on European sites and on listed species whether or not breeding or resting on those sites.  The specialist body in Wales is the Countryside Council for Wales, who had informed the Environment Agency and Flintshire CC that an assseesment has to be made.  Neither body has required the applicant to conduct the required assessment.

Phoenix informed the Inquiry that certain local sites are included in a list of candidate SACs which have recently been notified by the National Assembly for Wales to the European Commission.  It is government policy to give candidate SACs the full consideration and protection accorded to confirmed sites under the Habitats Directive and Natura 2000.  None of the responsible bodies have presented evidence to the Inquiry;  Jim Morris for the Environment Agency said when questioned by us on 20/21 December that he did not know the local SACs and in particular did not know that Buckley Common is one of them.

Buckley Common cSAC lies about 1 km from the site.  From the dioxin survey (Annex 4 to Jim Morris’s proof) the Common has the highest levels of lead and dioxin/furan pollution of all the sites sampled.  Our dioxin re-analysis explains this as caused by the plume tending to ground on the hillside more than in the valley east of the plant.  The furan total (Table 6 of Annex 4) is nearly 10 times the typical rural minimum of 0.48.  Though the typical rural maximum is given as 12.22, this value is most exceptional (the sum of all the individual maxima) and depends on an extra-ordinarily high value (5.5) for 1,2,3,7,8-PeCDF, indicating a specially polluted site.  The dioxin value is also high, nearly 7 times the typical rural minimum, while the rural maximum is similarly questionable.  We conclude there may well be a problem of abnormal dioxin-furan pollution (as well as lead) on the Buckley Common cSAC.

The Welsh Assembly office may be at fault for failing to check the need for a habitats assessment, to insert it in the terms of reference and to ask the applicant and/or CCW to give evidence.  At this stage, the Inspector has to seek the appropriate information on SACs and listed species to enable him to carry out his duty, so we ask for his support for Phoenix’s request for the Inquiry to be adjourned to allow this.
 

Planning
The European Ministers are alive to the possibility of hazardous waste incinerators masquerading as cement kilns as they inserted a clause in the draft incineration directive to plug this loophole (ENDS Daily 25/6/99).  Despite this, Jim Morris said under questioning that the prime purpose "has got to be cement making" and failed to consider otherwise.  For IPC/IPPC licensing he considers it only under one classification, though accepts that the EA also has duties under waste management.  He failed to specify (proof 4.3) that these duties are more than simple licensing, but include the fundamental Waste Framework directive duty of "ensuring waste is recovered or disposed of without endangering health" which is laid on the Agency via the Environment Act 1995, Sch.12.

Jim Morris did admit under questioning (by CANK) that changing to fuelling by waste including storage of waste fuels is a "major change" and that considerations of BPEO apply to use of the particular waste streams.  This accepted our contention that waste policy is relevant, and that the full legislation on waste applies.   The Environment Agency and HSE comprise the competent authority for implementation of the COMAH Regs 1999 (implementing the COMAH Directive) yet the EA proof contains no evidence.  Jim Morris in questioning did not deny that COMAH legislation on hazardous wastes could apply, but just assumed without evidence that the site would be below threshold.

Planning law requires particular consideration to hazardous development (see Phoenix paper .... = HD) but Flintshire CC and the EA have given no evidence on whether its classed as hazardous.  Planning Guidance (Wales) s. 10.1.10 applies, but does not define the classification, so the legislation needs to be considered.  Waste incineration is generally hazardous, but particularly so when it comes under the Hazardous Waste Incineration Directive as in this case with wastes classed under its Annex II (see HD).  Our evidence is that it is also classed as hazardous under COMAH. Thirdly, the current performance as one of the top industrial emitters of dioxin in the Environment Agency's UK list makes it hazardous on this account alone.

As the Phoenix paper HD details, the COMAH legislation requires the planning authority to consult with the competent authority, to have procedures for consultation and technical advice prior to planning decisions on COMAH-affected sites, and to determine the need and extent of an Art.12 buffer zone.  The Inquiry has been given no information by the Agency (nor by Flintshire CC) to enable the Inspector to make the necessary informed judgement.

Sch.12 to the Environment Act 1995 contains not only the phrase "without endangering health", but also "without risk to water, air, soil, plants or animals".  This is stronger protection than IPC/IPPC where BAT/BATNEEC rules.  There is clearly a risk of accidents involving the proposed transport and use of Cemfuel.  Accidental spillages could reach the Black Brook, as have recent spillages of fuel oil.  More seriously, any fire or explosion of the kiln would spread the Cemfuel and/or other wastes into the Brook, because no "buffer zone" has been planned.  The Jim Morris/EA proof mentions accidents only under IPPC (s.4.7.8.2) which would only "limit the consequences" of accidents.

There are clear risks because of the lack of a buffer zone, to nearby residents and to users of the adjacent right-of-way and public road, and to water of the Black Brook  (and badger habitat), and the Environment Agency will be able only to "limit" these risks if the planning permission is granted.  They failed to advise the planning authority (and this Inquiry) on the risk of development without a buffer zone (COMAH Art.12), and on the consequent inability to meet Sch.12.  Our case is that a presumption for a buffer zone must be made in the absence of contrary evidence.  This point is supported by Flintshire CC's evidence under questions, that this site would be unsuitable for a co-incineration plant on account of its nearness to dwellings.

Chemfuel
The Agency's Jim Morris in questioning agreed that the COMAH threshold for stocks Cemfuel depends on flammability/flashpoint, but did not know it depends too on toxicity (Phoenix evidence HD with COMAH table).

We have shown (HD) a presumption that a 600 tonne store of Cemfuel comes under COMAH because a) it contains hazardous substances from the European waste list and b) it is classified as a dangerous substance in COMAH Annex I, highly flammable or flammable liquid.  The information on the transport of Cemfuel says that its category is "highly flammable", in which case the storage thresholds are ...............

Neither the company nor the Agency have given evidence to dispute this.  Moreover, under its classification by the Agency as "waste", Cemfuel comes under Annex II of the Hazardous Waste Incineration Directive (Jim Morris proof 4.7.4.1).

Jim Morris/EA under questioning by CANK said that Cemfuel would not contain PCBs, nor dioxins and furans.  He was wrong.  The approved categories of wastes in Cemfuel submitted by Mary Horner/Flintshire Green Party do not exclude these from classes of industrial or chemical industry residues.  Indeed, the permitted classes (Ribblesdale authorisation; HD) include spent carbon filters, just the substance used to filter out dioxins and furans from combustion gases.   While the dioxins and furans are fractionally small quantities, no limits are set nor tests required on their presence in Cemfuel.  There is a threshold in COMAH Annex I for dioxins and furans, but no upper limit.

Dioxin
The Agency’s record on dealing with the dioxin problem is abysmal and fully justifies public concern over their ability to protect us from pollution.  Dr Howard (CANK), Watson (TCC) and our Dr Varley have detailed the concerns over this chemical – the most dangerous for human life and reproduction (Watson evidence, ch.6, paras. 28-37).  The Minister Michael Meacher's statement on this and similar products of incineration processes ("extremely toxic... no safe threshold below which one can allow such emissions") is quoted in Watson's Ch.6 para. 3.

The October 1998 sampling of emissions from Kiln-3 showed the immensely high value of 25-27ng/m3 I-TEQ, yet the Agency took no action until the Improvement Notice of 29 November 1999.  Under that Notice, a report was due by end of June, but has apparently just lain on a desk.  Jim Morris told the Inquiry he was waiting for Castle Cement to submit an application to change working methods, while they’re waiting for him to read and review the report.  Sampling commissioned by the Agency in 1999 gave lower dioxin readings of about 2 ng/m3.  The readings were presumably taken when Kiln3 was more carefully controlled than usual, but the level is still very high and set the Kiln as the UK’s 11th worst industrial emitter in 1999.  The Sept. 2000 sampling was 50% higher at 3ng/m3, so the kiln presumably rates still worse this year.

The Agency’s cursory dismissal of the dioxin problem in the soil sample analysis also validates the public lack of confidence.  Our reanalysis (Max Wallis/Phoenix Dec. 2000) shows there is definite evidence of raised dioxin and furan levels around the plant and that the components (cogeners) reflect the fingerprint of the 1999 emissions from Kiln 3.  The easy dismissal of the evidence by the Agency and its consultants – saying the reason for the main fingerprint component is “not clear at present” and failing to compare with the known emissions from Kiln 3 – shows over-willingness to dismiss the problem.  It seems the Survey was not peer-reviewed and is to be used only as a direction for future monitoring (Jim Morris under questions).  The costs were met by the public, despite such pollution being the responsibility of Castle Cement.  There is no emission monitoring under Kiln disturbances (Entec- Malcolm Pratt/CAM4 VOL2 5.2; specified in the IPPC Directive, Art.7 s.6) or attempt to find other reason for the ten-fold higher dioxin emissions in 1998.  Entec/CANK pointed out (5.2.3) that tests can be (and often are) run under special conditions with reduced chloride – which may have been done in 1999 and 2000, but not in 1998 before the problem was spotlighted.

Proper action by the Agency in the light of the Rechem/Pontypool and CPL/Bolsover dioxin cases would have been to
        a) require continuous monitoring instead of single samples (feasible for 2-week periods, now mandatory in
            Belgium - Watson Ch.6 para.37) and
        b) check on bioaccumulation via sampling of foodstuffs and fauna in the area (Update and Summary of Health Issues,
            Dr Varley, Phoenix document of 28 November).
The Agency's failure to treat the dioxin issue promptly and seriously demonstates to the public (and this Inquiry) that we should place only limited confidence in their regulatory function.  Phoenix is hugely concerned that part of the present proposal is to continue operating Kiln-3 for several years, despite it being found to be an extremely strong emitter of dioxins.  The wet process Kilns 1 and 2 emit far less dioxin (Update and Summary of Health Issues, 28 November).  The dioxin story is a strong reason for shutting down Kiln 3 first – and forthwith.

Inadequate Environmental Statement
Under the Environmental Impact Assessment Regs 1999, the Environmental Statement (ES) has to contain the necessary data and assessment of impacts of the development on the environment, including on humans, flora and fauna.  As the Inquiry has shown, the ES is deficient in important respects.

Some of the deficiencies have been rectified through evidence supplied subsequently (eg. on air pollution modelling, on mineworkings under the site, on the constituents and hazard rating of Cemfuel).  However, our evidence of 28 November pointed out the House of Lords decision [Berkeley v. Secretary of State and Others, 6 July 2000] that a “paper chase” cannot replace the “single and accessible compilation” plus non-technical summary that has to make up a proper ES.   The Lords’ ruling said too that public consultation on the ES is an essential part of Environmental Impact Assessment “requires the inclusive and democratic procedure… in which the public… is given an opportunity to express its opinion on the environmental issues”.  It follows from that judicial ruling that a significantly or seriously deficient ES does not satisfy the EIA directive and planning law.

We list the areas in which the ES is substantially defective
    ? Impacts of acid gas emissions on critically acidified uplands and fragile ecosystems (CCW letters)
    ? Data on Natura 2000 sites and listed species under the Habitats Directive, and potential impacts on them
    ? Data and impacts on ultrafine particles in the air pollution (Phoenix evidence)
    ? Lack of Health Impact Assessment, under the policy and framework of the Welsh Assembly
    ? Data and hazard of Cemfuel and other waste fuels
    ? No assessment under COMAH, particularly of impacts of potential accidents and ways to limit effects on human beings
      and the environment
 

PLANNING
Planning decisions have to take into account all material considerations, so there can be no argument on neglecting secondary purposes.
Alyn & Deeside LP, the Structure Plan and the draft UDP all allocate the area to general industrial use, not exclusively for the cement works.  None allocate it for hazardous industry nor for waste disposal.  Flintshire CC told the Inquiry the site is too close to housing for hazardous and/or waste disposal operations.

MIN3 of the .... applies to this development.  Mr Salt under questioning said he wrote the policy when working for Clwyd CC and did not intend it to apply to the cement making operations.  The wording does nevertheless apply to the processing (crushing etc.) of limestone and would apply without question if the kiln were sited in the quarry, as is normally the case (eg. Ribblesdale and Ketton).  So
        • MIN3 could not apply retrospectively to the present works
        • MIN3 does apply to the new development, but Flintshire CC did not apply it
        • the visual and pollution effects of the new kiln violate MIN3.

Can this Inquiry ignore failures in Pollution Control?
We have pointed out four classes of failures by the Environment Agency
        • falling far short of the ideal of minimising harm (delayed action; tolerating bad practice)
        • failure to identify polluting practices and discharges
        • failure to take prompt and serious action over the dangerous dioxins and furans
        • ignoring pollutants which are not UK-specified (UFPs, heavy metals).

Up to recently Welsh guidance advised (16.1) that "Planning authorities should operate on the basis that the relevant pollution control regimes will be properly applied and enforced".  We have shown that the Environment Agency controls have been inadequate to protect the public and the environment.  Exceedences of the authorisation have been running at the rate of 2 per week for several years, and tolerated by the Agency.  Only recently has the Agency become embarrassed and changed the goalposts, replacing the short-term particulate limit by a 24-hour limit.  Yet the Peak Associates report criticises this as "very poor enforcement practice ... there is certainly no excuse for not setting some form of short term emission limits" on a large cement kiln, and thereby force better testing and management of the raw materials stream (Exec. Summary, Peak Associates report).

Jim Morris/EA does not say in his proof s.4.6 that the pollution control regimes have not been properly applied and enforced, excusing the pollution as either harmless or because measures are restricted by BATNEEC.  One has to conclude that there will continue to be pollution risks to health and the environment despite IPPC etc.  His proof is wrong to say in s.4.6.2 that "concerns about potential releases" can be simply left to the Agency.  Though the Agency with HSE are the competent authority for COMAH, they have not considered whether the hazardous wastes/fuel would bring the site under COMAH and consequently whether planning conditions are required to deal with this.

The EA Proof is out of date in relying on the 1995 WO Circular 35/95 rather than the 1999 guidance and recent legal decisions.  This is shown by the new draft TAN which says of material planning considerations "in land use planning this includes pollution control, and it must be given full weight".  It adds that "the local planning authority must be satisfied that the conditions likely to be imposed by the Environment Agency Wales would protect the planning interest".

PPG 23 and Circ. 35/95 have been overtaken and the advice rendered of little value (two drafts of full and partial (PPG10) replacement have been floated). More important than this guidance have been the Waste Management Licensing Regs Schedule 4 [s.2(1) and (4)] and the Environment Act’s Schedule 12 introducing the relevant objectives from the Waste Framework directive, including prevention of pollution which planning processes must fulfil (Watson/TCC evidence, Ch.2 gives more detail).  So the formulations quoted above from the draft TAN have to be taken to supercede the WO Circular.

There have also been important developments in relation to the materiality of public perceptions of risk. Mr Justice Glidewell said in the Gateshead Court of Appeal judgement:
“Public concern is, of course, and must be recognised by the Secretary of State to be a material consideration for him to take into account. But if in the end that public concern is not justified, it cannot be conclusive”.
In the case of this development there is public concern and I believe that concern to be justified. However the Browning Ferris case [Newport Borough Council v SoS Wales and Browning Ferris Environmental Services Ltd [1998] JPL 377] takes the Glidewell judgement further. The Court of Appeal allowed the application by Newport BC and quashed the decision by the Secretary of State. This is described in the Journal of Planning Law as:
“a very significant decision, for it establishes that - (i) public concern, even if objectively unfounded, is a material consideration to be taken into account on the question of costs. Arguably this conclusion has wider application. There appears to be no reason why public concern per se requires objective expert justification. (ii) In some circumstances an objectively unfounded, albeit genuine, fear (i.e. public concern) can of itself constitute a valid reason for refusing planning permission.”

This important precedent, together with the West Midlands and Broadlands cases [West Midlands Probation Committee v. Secretary of State for the Environment and Walsall Metropolitan Borough Council, 1998, JPL. 388;  R. v. Broadland District Council and others ex parte Dave, Harpley and Wright, January 1998] give powerful evidence that the local concerns can be weighed heavily. The current state was authoritatively reviewed in the Journal of Planning Law, ‘Public Concern: The decision–makers’ dilemma’ [‘Public Concern – The Decision Maker’s Dilemma’, Neil Stanley. JPL 1998, 919-934] . The paper concludes
“Recent cases, confirming that public concern is a material consideration, pave the way for potentially the most significant development in planning law since the introduction of section 54(A) of the Town and Country Planning Act 1990 - recognition that “NIMBY” objections possess real teeth!”
We do of course maintain that our objections are much stronger and better based in material terms than the word NIMBY implies.

Weighing Public Concern
Under Watson’s argument on the public perception of risk (TCC Proof Ch.4, paras.1-6) the public concerns need to be properly weighed, based on an understanding of the factors influences and processes which together operate to create “public concern”.  One should ask if the concern is logical, based on public experience of the present plant, its operator and the regulatory bodies, and if it’s scientifically based, taking into account medical experts who disagree strongly with Dr Roberts and scientists who support Michael Meacher’s view on the danger of incineration products rather than Jim Morris.  The Inquiry therefore needs to consider under these heads the public concerns expressed to the inquiry:
            - Lack of seriousness in control of dioxins and similar toxic incinerator emissions
            - concerns over little or weak enforcement of emission limits - exceedances running at 1 or 2 per week
            - hazardous wastes – with the responsible EA officer not knowing the make-up of Cemfuel
            - major accident risk - with the responsible EA officer not bothering to consider COMAH
            - concern on protection of  nature interests – with the EA unaware of the European sites and failing to represent
              CCW’s views to this Inquiry
 

Alternative Sites
Mr Moggeridge when questioned on 25 October said there was “probably” no other site in Wales suitable for this development.  This justifiably raised incredulous laughter and reflects the failure of the applicants to consider any other site for this fundamentally new and footloose development.

We note that the rail line into the site will hardly be used for incoming materials – at most for only the 15% fraction of coal and petcoke used for fuel – and not at all for outgoing products.  The wastes are to come large distances, 50-200 miles or more.  The limestone could be sourced from many places, and would not suffer from the locally high lead content (a poison that is released from the works as well as from the cement product).

There is no argument that this plant needs to be in north Wales, neither for the fuel, nor for supplying the product.  But if it was to be in north Wales, the Deeside industrial park would clearly be more appropriate on several counts, including the visual aspects with which Mr Moggeridge should be concerned.  If it were needed in Wales, to use wastes originating in Wales, it would be better sited in south Wales in the region of the main population centres where there are several vacant old industrial areas (eg. the Llandarcy refinery site).

Air Pollution
On the detailed use of plume models and parameters assumed, Phoenix defers to Malcolm Pratt/CANK evidence that the claims made by Castle Cement are insecure.  We note that Jim Morris/Environment Agency excused the company’s substantial changes in stack gas flow numbers (CAN28) by asserting it’s “too expensive” for the company to draw up a “final design”.  That is not an excuse that planning law can accept – and not an excuse that the EA should have used when deciding to advise Flintshire CC that there would be no air pollution problem.  In particular, we do not accept the failure to provide the “consolidated document” (to be required by Jim Morris, he said under questions on 19 Dec.) for this Inquiry, and indeed as part of the Environmnetal Statement.  The Lords decision on the Finchley FC case (Phoenix Update… of 29 Nov.) says this “paper chase” cannot be taken as equivalent of an environmental statement in which this air pollution information is required.

We pointed out that plume dispersion models are uncertain to a significant degree and submitted in evidence the new comparison commissioned by the Environment Agency and released in November.  A factor of 3 error may well be expected when using the same input parameters.  There are further errors in using inappropriate met data from a distant site. The applicants explained they used Speke’s 1970s data because there’s none more recent available.  Data reliability and climatic conditions have changed since then, and Speke being on a plane close to sea level was never comparable to the Padeswood valley at a few hundred feet altitude.  The Environment Agency felt able to use public funds on local monitoring for 7 months, of pollutant levels as well as the met parameters.  The company should have done their own monitoring for at least a full year, in the absence of suitable met data.

We pointed out (M Wallis/Phoenix) additional strong uncertainty for the highest hourly values that ADMS v3 gives several times lower than ADMS v2.2 (>98%ile), with ratio of 100%ile to 99.9%ile values about 4-6 for ADMS v2.2. but only 1.2-1.3 for ADMS v3.  The modellers put differences between the ADMS versions down in (large) part to differences in the pre-processor.  Only second generation models (not ISC) can give one-hour peaks, and the agreement between ADMS3 and Aermod as reported by Castle Cement’s evidence can be just a common error in the pre-processor.  The new Environment Agency appraisal as we presented orally retains the ADMS2 assessment, which is several times higher at the 99.8%ile level than Aermod. In the absence of contrary evidence, the worst case should be assumed.

Phoenix has reported plume grounding events – and produced pictures of a day when grounding was seen.  To local residents, these events are not uncommon, apparently because of trapping in the valley, perhaps because of temperature inversions.  Messrs Barrowcliffe and Pratt agree that the local terrain with rather low hills is unimportant in the models Aermod, ADMS and ISC that they use.  This probably means that the models fail to represent the plume grounding that is seen to occur.  Because Castle has an operating plant, they have an obvious way to test the modelling, by checking measured pollution under measured met conditions and emission rates.  Their reliance on uncertain models and inappropriate assumptions of met data should not be accepted by the Inquiry (nor by the Environment Agency) when the remedy is so straightforward.

The CCW drew attention (June 2000 letter) to the high levels of NO2 in the EA data (Jim Morris proof, Annex 2, Fig. 4.1) and said these should be assessed against the short-term vegetation standards.  CCW said (15 March 1999) Castle’s application “has omitted vital information” and it was unexplained why the Agency did not act to remedy this.  We found that the CCW letter in the EA file was missing a few lines, without which it did not make sense – this implies the Agency failed to carefully read it (and heed it).  CCW’s June 2000 letter is not in their public file.  Neither letter is in the EA’s Appendix of relevant correspondance.  This establishes that the CCW interest has not been officially represented at this Inquiry, and that only our partial presentation of it is available to help out.

Under our questioning, Jim Morris agreed that the SO2 data (Annex 1, Fig. 3.1,2) shows the kiln’s plume was reaching and affecting the Penyffordd monitor, which implies the NOx plume was reaching it too.  Only part of this is shown in the NO2 data of Fig.4.1, so he was unable to say whether the values represent 20% or 50% of the NOx (which is NO+NO2).  The one-hour concentrations of Fig. 4.1 could mean 100 or 150ppb of NOx and likely to exceed the 40ppb WHO 4-hr vegetation limit.  On top of that, the short-term peaks in SO2 (Fig. 3.2) mean additional and synergistic damaging stress on plant-life (Prof. Ashenden, as cited) though there is no official standard on this.

Under questioning, Jim Morris agreed that they will not apply the annual limits on SO2 and NOx for protection of vegetation and ecosystems, because the government intends to exempt areas within 5km of the cement works (s.299 of TAQS).  He was thus unable to assure the Inquiry that the Agency would be able to protect the nature conservation interests (in particular European-designated sites) from air pollution harm.  Of course, Jim Morris said they would consider the issue in future under IPPC.  But his powers there are limited by BAT.  And if the Agency will be unable to protect the conservation interest, then this must be secured under the planning system.  The evidence to enable that has not been presented to the Inquiry by Castle Cement, nor by the Agency, in direct disregard of CCW’s warnings.

The CCW letters also raised strongly the issue of acid gas emissions within range of critically acidified countryside.  It said (March 1999) the EA was conducting “UK wide critical loads modelling” to assess pollution from individual sources reaching “European/Natura 2000 sites”, and added that “existing and proposed developments at Padeswood will also require such assessment”.  Neither Castle Cement, nor the Agency explained why this information has not been provided to the Inquiry.   Phoenix does not have the information, but note that the CCW letter did enclose a joint CCW/English Nature document pointing out that important habitats “will still be receiving harmful levels of pollution above their critical load” despite emission cuts then proposed.  It’s very possible that Padeswood would be required to cut its acid emissions, just as power stations have to (CCW letter).  The emissions have to be assessed relative to Natura 2000 sites, so the nearby sites to Padeswood could be critical.

It is thus important to know these sites and their current pollution/acid state – and negligent that none of the competent authorities have informed the Inquiry where these sites are.  “Competent authorities” (under the Habitats Regs) include the National Assembly for Wales, who actually told Newbridge-on-Wye inquirers that they became the competent authority once the biofuels application was “called-in”.  Over the Newbridge scheme, the Agency informed the Council specifically (our evidence, letters from EA to Powys CC) that the Habitats assessment including impact on Natura 2000 sites has to be carried out before the planning decision.  We note that Jim Morris did not deny that this guidance should apply at Padeswood too – we would press that it does.

Ultrafine particles from the stack were identified as an important issue in Phoenix evidence; Dr Howard and Entec/CANK supported this (1.10.8 “probably the most dangerous fraction”) yet no emission standards exist for this pollutant.  Jim Morris when questioned appeared not to understand in talking of PM10 as including all particulates;  this ignores the fact that PM10 standards are based on data relating to urban particulates from vehicles, that industrial particulates can be very different (formed by condensation of metals and chlorides – Entec/CANK 2.4.29), that composition and ultra-fineness strongly affects toxicity (Royal Society conference – , M Wallis/Phoenix evidence);  he also ignored the Directive that requires consideration of PM2.5 (1999/30/EC).  We quoted the head of air quality division of DETR, Martin Hurst, as saying ultrafine particles may prove “much more important than previously thought” (Update and Summary of Health Issues, Dr Varley, Phoenix document of 28 November).  Neither the Council, nor Dr Roberts/Health Authority nor Castle Cement have put any evidence forward to contest these views on the dangers of ultrafine particulates from the kiln.  Mr Pugh said on Nov. 28 that they would respond to the Update and Summary of Health Issues but they have failed to do so.

The Inquiry must therefore conclude that UFPs from the kiln are identified as a potentially significant or serious problem for public health, a problem that has not been assessed as is necessary, and for which no technical fix has been offered (nor shown to be feasible).  The Env Agency’s director Paul Leinster, admitted to the Commons Committee on 28 Nov. that evaluation of dangers of incinerators’ air pollution is “at an early stage” (The Guardian  29 Nov.), but the Agency’s evidence to this inquiry has been unconcerned, assessed problems only against official standards, and failed to advice a precautionary approach on siting an incineration plant within range of housing.

Phoenix (and others) quoted the Austrian enviroment agency policy that waste-burning plants like cement kilns should meet the same standards as dedicated waste incinerators.  This is particularly relevant to the NOx levels for the latter (200 mg/m3) being much tighter than for cement kilns and that a continuing laxer standard for cement kilns is likely.  Castle Cement is proposing only to meet 500mg/m3.  As the ENDS Daily report (4/2/00) points out, pilot plants in three countires have proven that the tighter limit can be met using SCR technology.

The lack of data on acid emissions/deposition, on sensitive (Natura 2000) sites and on NOx levels near Padeswood mean that one cannot argue a definite need for NOx abatement.  And it’s unlikely that the Agency with its policy that SCR is not BATNEEC (nor SNCR) will in the near future decide that SCR is ‘BAT’ under IPPC.  Therefore, a condition that SCR technology should be included – argued on precautionary grounds, with the lack of information – has to be set as a planning condition.

There are further worries about many trace pollutants from incineration processes, as evidenced by US EPA requiring tests for 90 chemicals (M Horner/Green Party evidence).  With the EA’s Paul Leinster admission to the Commons Environment Committee (The Guardian  29 Nov., above) that the understanding of health impacts is at an early stage, the lack of evidence on possible emissions from Kiln 4 means that the proposal should be rejected in the absence of any proposals to investigate let alone abate them.