Committee of Inquiry: Toxic Incinerator Ash Dumping in the St. Helier Waterfront Land Reclamation Schemes (P.96/2008) – comments.

STATES OF JERSEY

COMMITTEE OF INQUIRY: TOXIC INCINERATOR ASH DUMPING IN THE ST.  HELIER WATERFRONT LAND RECLAMATION SCHEMES (P.96/2008) – COMMENTS

Presented to the States on 7th July 2008 by the Council of Ministers

STATES GREFFE

COMMENTS

The land in question is known as the West of Albert Reclamation Sites I and II. The filling of the West of Albert Reclamation Site  I commenced in May 1985 at the corner nearest to the old slaughterhouse. Tipping was confined to a narrow heading behind the Albert Pier seawall to make access to the proposed new Elizabeth Harbour Scheme. Ash from the incinerator plant was tipped with inert materials in a co-mingled fashion. When it became apparent that the access road and working area for the new Elizabeth Harbour would not be completed in time, further inert material was sourced and imported into the site. Filling of the inert and co-mingled ash material then proceeded in a westerly direction within the site boundary.

In September 1987 changes were made to the method of disposing ash within the site and the ash was then confined to the top 2  metres of fill to ensure it was in a position that was above mean high water spring tide level.

The decision to change the way in which ash was disposed of was brought about as a result of a report prepared jointly by the previous Environmental Advisor to the States and the old Resources Recovery Board in 1987. In addition, the previous Agriculture and Fisheries Committee, Sea Fisheries section, also identified that under Article  3 of the Sea Fisheries (Miscellaneous Provisions) (Jersey) Regulations 1974, incinerator ash could not be deposited into an inter-tidal zone.

As a result of these interventions, the then Resources Recovery Board changed the way in which it disposed of incinerator ash by disposing of ash only to areas that were above mean high water spring tide level in the first instance, and then later, by digging ash pits in the reclaimed land that was not considered to be tidal and depositing ash in discrete pockets within the site.

Records indicate that from 1987 onwards, significant concerns were being expressed as to the way in which incinerator ash was being managed on site and the potential toxic effects it could have on the surrounding environment, as well as on members of the public.

The disposal of ash into the West of Albert Phase  1 scheme raised concerns with States members in the early 1990s, and it is clear from reports that the level of concern increased significantly from 1993 onwards, resulting in various political groups and States Committees starting to address the question of disposal of ash into the environment.

The first major report undertaken to review the methods adopted for disposing of incinerator ash was in 1995, commissioned by the Planning and Environment Committee. This report, prepared by consultants, Environmental Resources Management (ERM) provided an assessment and review of the levels of contamination and potential remediation options for the West of Albert Phase  I scheme.

The Planning and Environment Committee also used the ERM report to consider the licensing arrangements for the safe disposal of incinerator ash into the La Collette Phase  II reclamation site which opened in 1995. From this point on, all ash has been contained within lined and sealed pits on the La Collette Phase II reclamation site.

In 1995 the Waterfront Enterprise Board commissioned reports on the condition of the West of Albert site prior to development commencing, and further studies were undertaken to determine the impact of any potentially toxic materials leaching from the West of Albert land reclamation site into the marine environment. Numerous reports have been compiled for the Waterfront Enterprise Board and all States Departments associated with either the operation or regulation of waste sites.

(See Appendix  1 for list of reports).

Health and Safety Comment:

It is accepted that the manner in which incinerator ash was disposed of on the Waterfront site was not managed appropriately, resulting in the potential for operatives subsequently working on the site to be exposed to risks to their health when uncovering or working with the material. The legal requirement under the Health and Safety at Work (Jersey) Law 1989 for ensuring that employees are not exposed to risks to their health is primarily placed on their employers.

When concerns over the manner in which employees were working with ash material was raised with the Inspectorate in 2000, action was taken, in conjunction with other States Departments, to address concerns over the potential exposure to incinerator ash disposed of on the Waterfront site, through a multi-agency approach. This multi-agency approach is currently co-ordinated through the requirement placed on developers of land at the Waterfront Site for an Environmental Impact Assessment.

The Inspectorate is therefore satisfied that developers involved with the Waterfront site are made aware of the potential for uncovering incinerator ash, and that contractors in control of site operations are aware of the standard expected of them to control the potential health risks to operatives working on the site. It is still the situation, as with every health and safety requirement, for contractors to ensure that the procedures which have been put in place are strictly adhered to at all times, and that employees abide by instructions and site rules which are in place.

Health Protection Comment:

The issues relating to the marine reclamation at the Waterfront West of Albert site have been subject to considerable multi-disciplinary investigation and response to the Senator and others since 2001. Senator Syvret, as the President of Health and Social Services, in February 2002 was provided by the Medical Officer of Health, Dr. John Harvey, with a full and frank response to questions relating to the disposal of ash at the Waterfront; its potential to impact on the marine environment into the future; its potential to impact on the health and well-being of end users of the site; the potential for impacts on the health and well-being of workers, both those involved in the deposit of ash and those working in the construction industry. (See Appendix 2 for a list of Questions and Answers.)

It should be remembered that in terms of the wider impacts on the health of the population there were few Laws and Regulations governing this type of activity. The Statutory Nuisances (Jersey) Law was introduced at the end of 1999 and the Water Pollution (Jersey) Law was introduced in 2000. There was less cross-cutting activity between States Committees before 2001 and it is a fact that the then Public Health Service/Environmental Health Department were not party to the design and management of the reclamation activity prior to 2001.

Hindsight allows us a unique opportunity to reflect on the actions of previous administrations. It is accepted that between 1986 and 1995 the deposit of ash by co-mixing with inert waste at the Waterfront West of Albert marine reclamation site was not undertaken in a manner that would comply with today's strict requirements for the protection of health and the protection of the marine environment.

From 1995 to the present day, the activity of disposal of ash is into specially lined pits above Mean High Water Spring Tide Level, designed to minimise escape of leachate from the material into the marine environment and to help prevent washout of toxic material from the fill from tidal activity. Since 2002 there has been enacted a multi- disciplinary approach to the issue of contaminated land.

As  a part of the  Planning regime for redevelopment,  contaminated  sites across  the Island,  not just on  the Waterfront, have been subject to monitoring, review and assessment. The Health Protection Service is satisfied that appropriate levels of management and control of activity during redevelopment are undertaken, and that developers and contractors comply with current international standards of best practise, thereby minimising the risk of a pathway for contaminants to end users of the sites. The redevelopment of the Waterfront has resulted in large volumes of contaminated material being removed from the site and deposited in lined pits at La  Collette above Mean High Water Spring Tide Level, thereby removing the continued risk of interaction with the public or the marine environment in the waterfront area.

Current position:

It is clear that the approach taken for the disposal of incinerator ash in the late 1980s and early 1990s would not be acceptable today. This fact has been recognised and addressed through the multi-agency working group and following this inter-departmental working, the Planning and Environment Department now has a better working knowledge of areas of land contamination on the Island. As part of the planning process, the extensive use of Environmental and Health Impact Assessments are used today to ensure that future development addresses the potential contamination of land as part of any planning application. In addition, the regulatory roles are now in place for Environment, Health Protection and Health and Safety, providing a clear boundary between regulator and operator, be that operator a States department or a third party.

What will a Committee of Inquiry achieve?

In Senator Syvret's proposition, the conclusions set out what the Committee of Inquiry aims to achieve. "We need to know –

Why that happened?

How it was able to happen?

Who was culpable?

Why did such a complete breakdown of checks and balances occur?

What lessons need to be learned?

What action we may need to take to remediate the site?

What action we may need to take to examine, on a long-term basis, human health risks and impacts?

What action we may need to take to prevent the many tens of thousands of tonnes of toxic ash escaping into the marine environment in the event that the reclamation sites become eroded, or threatened by rising sea levels and increased wave action as a result of global climate change?

These are just some of the questions which must be answered."

The vast majority of these questions were addressed in 2002 when the Medical Officer of Health prepared a response to a series of questions posed by Senator Syvret. From 2002 onwards, surveys of the site have been undertaken by WEB and reports prepared by the Health Protection Department, all of which assessed the current levels of contamination within the site, the proposed method of removal/remediation, the risks to human health and the groundwater risks associated with ash contained in the site.

A Committee of Inquiry will be able to review the history of ash disposal, the historical and scientific data from the numerous reports already prepared; however, from all of the work undertaken in the period of 1995-2004, this has already been achieved. Whether or not anyone is culpable would be a matter for a Committee of Inquiry to establish although from the review of records all those concerned in the historical disposal of ash have now retired from the service.

Financial and manpower implications:

The Proposition is vague as to costs and manpower implications. It identifies a requirement for 50% of a Grade  10 Civil Service Clerk which is assumed to be the manpower required to provide a Committee Clerk. Given that Senator Syvret acknowledges that this Inquiry will be akin to a more serious Committee of Inquiry, and identifies the Building Costs and Bus Tender Committees of Inquiry which took 45  months and 9½ months respectively to complete, the allocation of 6  months for a Clerk is unrealistic.

Membership of the panel would be critical if the Committee of Inquiry were to proceed, as it would be dealing with extremely complex scientific evidence. The costs of experts to undertake this type of review would be very high and it is unlikely that they would be available at less than £1,000 per day plus expenses.

The requirement for expert witnesses/specialist advisers to review the numerous reports and provide scientific evidence to an Inquiry would also be significant; and if extended over many months would be extremely expensive, as experts in this field will also cost in the order of £1,000 per day plus expenses.

If the States were to approve such an Inquiry, it should be prepared to set a realistic budget of between £250 – 300,000 for a review of this complexity.

Given the levels of co-operation now in place and the regulatory framework under which all current and future developments are assessed, the value of a Committee of Inquiry is considered to be extremely limited, and will only serve to rake over old ground, all of which has been well reviewed and procedures put in place to ensure any previous failings did not occur again.

Comment of the Council of Ministers:

It is abundantly clear that much research has been undertaken and much knowledge gained concerning the safe management of incinerator ash and its disposal. It is also clear that standards have changed over time and the original methods employed for disposing of ash were not adequate.

The standards, protocols and regulations now in place provide the Island with the security it needs to be confident that any further excavation within the West of Albert reclamation site will be well managed and regulated.

Therefore, the Council of Ministers does not support the proposal for a Committee of Inquiry as outlined in Proposition P.96/2008: Committee of Inquiry: Toxic Incinerator Ash Dumping in the St.  Helier Waterfront Land Reclamation Schemes.