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Three Witnesses
    Mrs Carnevale
    Dr Shah
    Alan Watson
        Dr Roberts' cross-examination

Legal Submission on the Waste Framework Directive and the ‘Relevant Objectives’
        The Waste Framework Directive
        Waste Management Licensing Regulations 1994

Trefnu Cymunedol Cymru
JANUARY 2001

This is the closing statement of TCC, the Wales Broadbased Organisation.

Three witnesses represented a much wider group:

Mrs Carnevale described the effect that noise from the plant has on her home and well-being.  Since she gave evidence other people have approached her and said that what she described is also their experience.  This shows that more people, across a wider area, are already being disturbed before any possible increase of production.

Dr Shah, a local resident and qualified Medical Doctor and fellow of two Royal Colleges of Physicians, London and Edinburgh gave evidence and wished to make the following points:

            1. Toxic emissions, no matter how small, would be additional to the existing pollutants in the atmosphere and in the soil
                inevitably there will be a cumulative effect over a prolonged period and the grass, vegetables and fruit grown on that
                soil will have high levels of dioxins.

            2. If an individual is allergic to any toxic substance then he or she will react even to the smallest doses.  In other words,
                the effect is not always dose related.

            3. It is a fact that childhood asthma is on the increase in the United Kingdom and is blamed on a number of air
                pollutants.  Vulnerable children would be particularly at risk of developing allergic asthma as a result of exposure to
                particulate emissions.

            4. In medical practice, any new drug goes through a period of research and development extending from 10 to 20
                years.  It is tested on laboratory animals before human testing and after a very thorough and vigorous examination,
                the committee on safety of medicines will grant a licence for the use in the humans.  Each new drug is closely
                monitored and all adverse side-effects are reported to the CSM.  As a Physician if I observe any serious
                side-effects at anytime, I can withdraw the drug immediately from that patient and record the fact so that this
                particular patient is never given the same drug again.
                Sadly if Castle Cement were allowed to burn toxic substances in the proposed new kiln there will be no such safe
                guards to protect the local population.  The damage will be continuous and it will be extremely difficult to shut the
                kiln.

            5. In my opinion to allow Castle Cement or anyone else to burn potentially hazardous substances in populated areas
                will be utterly irresponsible especially because no one whether it is Castle Cement or anyone else can guarantee
                against accidents, human failure or equipment failure.  It will be of no use to the victims for everyone to say that the
                burning of toxic substances should have never been allowed so close to populated areas as was the case after the
                Bhopal disaster.

Mr Alan Watson gave expert evidence for TCC.  We consider that the evidence presented by him was not rebutted and still stands as outlined in his main proof and summary.

When Mr Watson gave evidence you discussed with him the application of the Waste Framework Directive and the relevant objectives of the Waste Management Licensing Regulations 1994 to the determination of this appeal.
There seemed to be some confusion about the derivation and relevance of those regulations and so he has prepared a note of legal submission which we hope may be helpful.  I don’t propose to read this but it is on disc and I have hard copies available.

Important points established during the cross-examination of Dr Roberts by Mr Watson include:

            1. Dr Roberts fully accepted the impacts on health that arise from public concern and anxiety and acknowledged that
                they had not been reduced by his evidence or the Environment Agency regulation.

            2. Dr Roberts has only been involved with this site since 1998 even though he has been in post for more than 5 years.
                The existing kilns have, on  Castle’s evidence, been exceeding health based standards over that period but the
                Agency did not contact the Health Authority.  Dr Roberts agrees that the emissions are unacceptable but had not
                even written his concerns down for the Agency to act upon.

            3. Dr Roberts claims that you cannot compare deaths brought forward by air pollution with other deaths even though
                200x greater than the risks from rail travel – which has caused huge anxiety during the course of the inquiry.

            4. Dr Roberts accepts the calculations based on the Institute of  Occupational Medicine impacts of deaths - 3 days
                lost/person with 5000 people affected.  He rationalised this impact from the proposal  by comparing with other
                impacts and deaths. He accepted that he has not been kept up to date on these impacts by the DoH.

            5. Dr Roberts accepts that air pollution is undesirable and every effort should be made to reduce it.  (Castle Cement
                do not use the best techniques to do so).

            6. Dr Roberts accepted that important information needed to assess health impacts is still missing – this included
                particle size, distribution and specification.  It was unclear when, or if, this data will be made available.

            7. Dr Roberts accepted that he had based his assessment on the impacts from the main stack and that this was
                incorrect in relation to the concentrations of particulates due to clinker cooler by a factor 8-10 (even after the Castle
                Cement correction of the errors in Mr Barrowcliffe’s Proof).

            8. Dr Roberts accepts there is a level of harm but argues that it is acceptable in relation to other risks.

We do not consider that this comparative exercise is a legal (or moral) basis for the decision.  The approach clearly places the application in conflict with the provisions of the Human Rights Act implementing Articles 2 and 8 of the Convention on Human Rights and for this, and the other reasons presented in our evidence, the appeal should be refused.
 
 

by
Alan Watson BSc (Hons) C.Eng
Public Interest Consultants
Instructed by

Trefnu Cymunedol Cymru
 
 

The Waste Framework Directive

1. Planning Guidance Wales makes it clear that :
 "206.  Planning Authorities in determining applications, are obliged by EC Directives on waste primarily to ensure that waste is recovered or disposed of without harming the environment, endangering human health or causing a nuisance through noise, or adversely affecting the countryside or places of special interest and also to establish an adequate network of waste disposal installations."

2. The proposal to burn controlled waste at this site changes the legal basis for assessing the application as the requirements of the Waste Framework Directive (75/442/EC as amended by 91/156/EC) apply. The Waste Framework Directive forms the basis of a range of duties regarding the management of waste and introduces new duties which bear upon planning and
pollution control authorities.  The UK has transposed the Directive by means of the Waste Management Licensing Regulations 1994.  As the proposal includes the burning of a wide range of wastes that may be included as constituents of Cemfuel or Profuel the cement kiln becomes, de facto, an incinerator as well as a cement kiln.  Not only would the provisions of the
relevant waste and incineration Directives apply to the process but the general and increasing fears that the public have in relation to incineration will also be an important factor in the assessment of the application.

3. The Waste Framework Directive is perhaps the most important of the European Directives in relation to the determination of this application.  This Directive introduces stringent requirements for the protection of human health and the environment that have significant implications for this proposal.  In particular Article 4 of the Directive is highly relevant and provides as follows:
"Member states shall take the necessary measures to ensure that waste is recovered or disposed of without endangering human health and without using processes or methods which could harm the environment, and in particular:
            I.         without risk to water, air, soil and plants and animals;
            II.       without causing a nuisance through odours;
            III.     without adversely affecting the countryside or places of special interest".
 
 

Waste Management Licensing Regulations 1994

1. Paragraph 2 (1) of Schedule 4 of he WMLRs states:
 "….the competent authorities shall discharge their specified functions, in so far as they relate to the recovery or
   disposal of waste,, with the relevant objectives."

2. The meaning of competent authorities and their specified functions are partly set out in Table 5 the first entry indicates:
                                Competent Authority                         Specified Function
                                 Any planning authority,                          The taking of any specified action.

            1. The meaning of specified action is listed in paragraph 1a-e and includes:
            "determining - (i) an application for planning permission".

            2. It follows that any planning authority shall determine an application for planning permission relating to the recovery
                or disposal of waste, with the relevant objectives.
 

3. Planning authority is defined in Paragraph (1) of the Regulations:
"planning authority" means the local planning authority, the person appointed under paragraph 1 of Schedule 6 to the Town and Country Planning Act 1990 or, as the case may be, the government department responsible for discharging a function under the planning Acts………and the Secretary of State shall be treated as a planning authority in respect of his functions under the planning Acts"

4. And includes Planning Inspectors, the National Assembly and the Secretary of State.

5. Local Planning Authority has the same meaning as in the Town and Country Planning Act 1990 (Sch. 4 Para. (1)).

6. In an effort to avoid unnecessary duplication paragraph 2(2) provides that a planning authority is not required:
 "to deal with any matter which the relevant pollution control authority has power to deal with."

7. This does not in any way limit the extent to which the Planning Authority takes into account pollution/health issues
    considered  to be material.

8. In terms of role, planning authorities assess ‘damage’ to interests of acknowledged importance. This of course gives them a
    more holistic view than the Environment Agency who can only consider what is before them in a waste license application
    and have very limited grounds for refusal of the application (EPA ’90 S. 36(3)). A planning authority has a much greater
    freedom to identify and define ‘harm’ to interests of acknowledged importance. It is difficult, in any case, to see how a
    proper assessment of the environmental impacts of the proposal, as is required for the Town and Country (Environmental
    Impact Assessment)(England and Wales) Regulations 1999 , could be made without material consideration of health and
    pollution related issues.

9. The Waste Framework Directive provisions are transposed directly into the 1994 Regulations.  However the interpretation
    of the Directive as part of UK law is attempted by policy guidance.  As is noted in the Circular :
    "This verbatim transposition avoids the need to interpret the Directive in the Regulations.  However, it also
    makes it even more important to have clear guidance on the meaning of these provisions so that they are
    interpreted consistently by WRAs [Waste Regulation Authorities] and other regulatory authorities, and there is
    a common understanding of their effect."

10. According to circular 11/94
    "The key objective which underlies the whole of the Directive is Article 4, and this has been transposed into
    the Regulations as paragraph 4(1)(a) of Schedule 4.  This makes it a relevant objective to ensure that waste is
    recovered or disposed of without endangering human health and without using processes or methods which
    could harm the environment, ……"

11. The effect of the wording of Article 4 becoming "relevant objectives" is arguably to weaken its legal significance since the
    aim or purpose of provisions carries less importance when interpreting UK legislation than in interpreting EC legislation.
    With or without ‘direct effect’  there is no authority for simply assuming that it is possible to interpret the relevant objectives
    in the terms of it being acceptable to allow some risk, or harm, to air, soil, plants or animals. Clearly it is a tough test.
    Professor Richard Macrory summed up the situation of the Waste Framework Directive in the ENDS Law report:
    "As has so often happened with EC Directives, Member States no doubt agreed to the general principles
    concerning the disposal of waste without risk to human health and the environment without appreciating the
    full consequences of what they were doing."

12. The Waste Management Licensing Regulations require that the planning functions are discharged ‘with’ the objectives.
      This is undoubtedly stringent duty.

13. Paragraph 1.47 of Circular 11/94 Annex 1 states:
    "The general duty in paragraph 2(1) [of Schedule 4 to the 1994 Regulations] means that in exercising the
    specified functions authorities must always consider the objectives of the Directive and aim to determine
    decisions ... in line with them" [emphasis added]

14. This is broadly the language of materiality (to consider) but the duty imposed by the relevant objectives is far more onerous
    than this implies.
    Para 2(1) actually requires that:
    "2(1) …the competent authority shall discharge their specified functions, insofar as they relate to the recovery
    or disposal of waste, with the relevant objectives" [our emphasis]

15. It is also plain from the wording of Article 4 and the reference to "ensure" that the duty is a mandatory one.

16. It is significant to note that these duties which bear upon planning and pollution control agencies came into force after
    Gateshead and neither they nor the regulations were analysed in that series of appeals.
 

Therefore unless it can be demonstrated that there are no risks – or at least no more than de minimise risks - to these environmental objectives then the application should be refused.

Alan Watson C.Eng