Save Our Shoreline, January 2011

NOTHING TO REPORT, MINISTER?

"You have no evidence. Provide me with the evidence."

John Richardson, then CEO Transport and Technical Services, now Deputy Chief Executive of the States of Jersey, speaking at the Ramsar Review Hearing of the Environment Scrutiny Panel 18th September, 2009 on possible pollution during the construction of the new incinerator. Full transcript download available from the Scrutiny site as a PDF here.

"I just wanted to put on record obviously we have got an ongoing criminal investigation in relation to an alleged pollution incident on the site so we are not going to be able to go into detail at this stage on that."
Andy Scate, CEO Planning and Environment, speaking about pollution incidents at a separate Ramsar Review Hearing of the Environmental Scrutiny Panel 18th September, 2009. Full transcript download available from the Scrutiny site as a PDF here.

"I can therefore confirm that the incident on the 28th April was, in my opinion, not an isolated incident."
Extract from an email from Willie Peggie, (then Assistant Director- Environmental Protection) responding to an email from the former EfW Project Manager's Representative sent to Mr. Willie Peggie, 8th October 2009.

" I have to say that the water within the site is purer than the water outside."
Constable Mike Jackson, Minister for Transport and Technical Services, (Operators of the project) speaking on BBC Jersey Today, 5th February, 2010.

“There is no evidence that the ecological character of the Ramsar site is likely to change as a result of either the EfW or any other activities along the coastline.... As there is nothing to report then the purpose of a report is superfluous.”
Planning and Environment Minister Freddie Cohen, as quoted by Andy Scate, his CEO, in a letter to Andy Tully at DEFRA 7th July, 2010.

"Photographs  taken by me on the 28th April show water being pumped direct from the excavation. This was in contravention of agreements made between the EPO and CSBC to use the extract wells to prevent contaminated water entering the discharge wells outside of the sheet pile curtain and the Risk Assessment and Method Statement (RAMS) produced to show how de-watering was to be carried out."
Brief extract from statement received by SOS from the eye witness, Project Manager's Representative (Fichtner).

Below: Three photos taken by the eye witness are shown below. A fuller illustrated account can be viewed here.

Save Our Shoreline persist in their quest:

1: To determine whether pollution events at the incinerator construction site in Spring /Summer/ 2009 will result in criminal charges. And if not, why not, given the evidence the Law Officers should have been supplied with by Environmental Protection.

2: To have the right to question the legality of and potential for environmental damage caused by Water Discharge Permits recently consented for the new incinerator. SOS consider that the discharges may well be in contravention of Jersey's obligations under the Ramsar Convention and also contravene regulations set down by the U.K. Environment Agency. Although these do not apply locally, SOS strongly believe the principles therein should be adhered to by the States of Jersey.

SOS made submissions in October 2009 regarding the intended discharge into the Ramsar Area at Havre de Pas of up to 13.2 million gallons per day of preheated and biocide treated water used to cool the new incinerator plant. See here. The submission was rebutted by the operators, Transport and Technical Services, and SOS received a polite letter from the new Regulator thanking them for their submission but informing them that a permit has been issued. Last month Mrs Lara Luke, on behalf of SOS, requested a court review of the decision under Article 26 of the Water Pollution Law 2000. This request was answered by the Law Officers and ruled out on a technicality: the article in question (article 26) relates to Water 'Discharge Certificates' and not 'Discharge Permits'. (A change of policy that came with ministerial government). The SOS written submission can be downloaded as a PDF here. (SOS have requested permission to publish The Law Officer's letter dated 21st December 2010). SOS submit that there is in essence no difference in practice between the two 'Discharge' terms. The end result is the same.

If the law has been amended recently such that the fine print leaves SOS without the right to challenge the permits on Article 26, and the Regulator is not bound to give any reasons as to why he decides what he does, what can we do? SOS have valid concerns and believe that the spirit of the aforementioned Environment Agency regulations should be obeyed locally. The Environment Agency regulations (Standard rules SR2010No2 - discharge to surface water: cooling water and heat exchangers) can be downloaded here as a PDF. SOS consider that the permit for cooling water discharge fails on at least two counts. The Operators are obviously not keen to have to defend their position, particularly after the drubbing they received last year in the Environmental Scrutiny Panel's report which can be downloaded as as PDF here.

The thrust of this report was summed up by the Jersey Evening Post in a reported roundup of events in January 2009, published on 14th December, 2010: "The planning process behind the new incinerator was criticised by the Environmental Scrutiny Panel, who said that blunders were made and that a protected area of coastline could have been exposed to pollution. Following their year long review, they found that the full impact of the incinerator project had not been fully investigated and warned of 'chronic marine pollution'.

The Minister for Planning and Environment did not accept this report. Neither did Transport and Technical Services. Several officers at the Hearings seemed very embarrassed at the time and two officers apologised for mistakes made that led to fundamental errors in the Planning Process. But the departments remained protective of their position. In fact P & E did not mention the Panel's findings, nor the independent findings of consultants Bioscan UK, nor the the 'ongoing criminal investigation' into pollution events at La Collette, in a letter dated 7th July 2010, sent to Andy Tully at DEFRA. (download here as a PDF) This crucial letter incidentally was withheld from the members of the Ramsar Management Authority whose Chairman should have told the panel members its content in their meetings.

This letter was used as the basis of a letter that Simon Hopkinson (UK Ramsar Administrative Authority) at DEFRA sent to Tobias Salathé, Senior Adviser for Europe at the Ramsar Secretariat on 9th November 2010. (download here as a PDF). The letter was sent despite Ramsar's request on 30th March 2009 for Article 3.2 to be invoked and a report produced. The Secretariat have, under the protocol that they are bound to follow, to 'officially' accept DEFRA's word. SOS assume that DEFRA simply passed on the assurances that they had received in the letter from P&E dated 7th July 2009. The letter was clearly disingenuous, lacking any reference to the ongoing criminal investigations, which were put on record by the CEO of P&E, (author of the letter) as quoted in our introduction.

A recent email exchange between SOS member Mrs. Lara Luke and the Regulator, Dr. Tim du Feu, will give the reader further insight into the ongoing situation. It is available as PDF download here.

SOS have decided that being barred from other channels, we should bring these matters to the attention of the Environment Scrutiny Panel who are soon to be conducting a review 'Protecting our Marine Environment'.

SOS have made a submission for the above review. It can be viewed as a web page here.

THE EYE WITNESS TO POLLUTION EVENTS AT LA COLLETTE, APRIL/MAY 2009

One question that we have repeatedly asked Mr. Willie Peggie, as Environmental Regulator in Chief is: Why did he refuse to interview the principal eye witness, the Project Manager's Representative (Fichtner), when the eye witness requested to be interviewed in November 2009? Why keep the witness waiting a month without answering his requests? Mr. Peggie declined to give his reasons. To be accurate we publish below an extract from one of a series of emails received by SOS from the expert on the ground, the concerned eye witness, the man in charge of site safety at the incinerator site. It should be pointed out that SOS reluctantly declined an urgent request from the witness to fly over to see the committee with his evidence, so frustrated was he with Environmental Protection. But SOS wanted to do the right thing and suggested to the witness that he should go to the Regulator in person. We were put in an impossible situation with no help forthcoming from the very department who are tasked with the job of protecting Jersey's Marine environment.

The witness tried in vain to present Environmental Protection with his evidence and more than anything wished to be interviewed by the Regulator. The witness sent us a batch of emails, two of which showed that he had tried and failed to be interviewed appropriately by Mr. Peggie.

"These photos go nowhere."
(Alleged response from the CEO of Transport and Technical Services when shown the photographs by the Project Manager's Representative).

So worried was the Project Manager's Representative about the level of pollutants being pumped out of the excavation into the adjoining Ramsar Site, that he took dozens of photos and kept detailed records and finally pursuaded a senior TTS officer to make a report and send it to the EPO. The report was inadequate in the witnesses view and seriously underplayed the damage that was being caused by twice daily flushing of contaminated water into the Ramsar Area. The report was prepared by an officer whose own department were operating the site. This conflict of interests must have been tricky for him and be borne in mind. The initial report can be downloaded as a PDF here.

SOS acceded to a request made by the Regulator and kept quiet about the evidence that the eye witness wished to present to the EPO personally in November 2009 as a matter of urgency. He was not afforded the opportunity. So we kept in touch with the witness, an extract from one of the emails illustrating his frustration is reproduced below:

***********@yahoo.com
Subject: Fw: Information Request - Article 34 Water Pollution (Jersey) Law 2000
Date: 10 November 2009 13:25:45 GMT
To: ***********@jerseymail.co.uk

Many thanks for your e mail earlier today. I have attached an e mail that I sent to Willie Peggie last week, asking him where his investigations are up to. You will note that it took nearly a month for him to reply to an earlier request for information; on his intentions in relation to interviewing me, so yes I can understand your frustrations on the EPO dragging their feet.

As you may not be aware; I am in dispute with Fichtner for them having cancelling my contract. This is because of my belief that they basically sacked me because of my unwillingness to compromise on my standards in relation to environmental, safety and quality management issues. In particular the environmental incidents which happened at the end of April and the beginning of May. After which, the EPO informed me that they wished to interview me under caution, to ascertain exactly what had occurred. When I informed Fichtner of this request they demanded that they either attend the interview on my behalf or that they would be in attendance during the interview. I informed them that this could be a conflict of interests as I had every intention of telling the EPO exactly what I had seen and my understanding of the poor environmental management being demonstrated by CSBC.

During a visit to the UK, for training purposes on the 6th July, I was informed by Fichtner that my contract was being cancelled with immediate effect, "because I couldn't get on with some people at Director level". During this visit to the UK my locked desk was entered and my diary and lap-top removed by Fichtner. However, I had previously removed hard copies of e mails, photographs and reports on these incidents that I still have in my possession. Although I have  difficulty in releasing these to you while the EPO investigation is ongoing I can make these and my understand of the events available once the EOP allows me to do so. Maybe my last e mail will convince the EPO that I am not going to go away and actually interview me. Rest assured that if they do, you will hear about it before hand.

We can only surmise the reasons as to the apparent reluctance to receive a full report regarding the pollution incidents by Environmental Protection. It does raise the question of their commitment to Environmental Protection, and in fact their liability under the law - why did they not want to receive the evidence?

SOS are soon to have talks with the new Independent Adviser for the Scrutiny Panel, and the Scrutiny Hearings will follow. SOS await the date of the next Ramsar Management Authority meeting and will update the panel as recently advised is desirable by the Assistant Adviser (Europe) Ramsar Directorate.

SOS will shortly be writing to the Attorney General outlining their concerns.