Jersey Airport - Fireground Remediation - Deed of Settlement

STATES OF JERSEY

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JERSEY AIRPORT: FIREGROUND REMEDIATION – DEED OF SETTLEMENT

Lodged au Greffe on 19th October 2004 by the Harbours and Airport Committee

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to a p prove and to ratify the Deed of Settlement, held by the Greffier of the States, made on 4th October

2004 between the Harbours and Airport Committee and the supplier of fire fighting media for Jersey Airport, and to request the Greffier of the States to record the ratification on the Deed.

HARBOURS AND AIRPORT COMMITTEE

REPORT

1. G  eo graphy

1. J e rsey Airport's western boundary lies between Montdu Jubilé and Mont à la Brune and sits onan escarpment 240  feetaboveSt. Ouen's Bay and approximately one mile from the sea wall. The Airport Fire Training Ground(FTG)is situated onthe north western extremityof the airfield onMontauGuet and has been closed off to publicaccessforusefor training by the Airport Rescue and Fire Fighting Service in this samelocationsince the 1950s.
   2. B a c kground

1. P r ior to 1991, a large, rectangular steel tank in a concrete surround wasused as the fire training and exercise area. Waste oil from the Island's garages waspoured into the pit, ignited and then extinguished with water – no foam was used in theseexercisesatanytime.
2. In 1991,tomeet more demandingtrainingrequirementsfor United KingdomAirport Fire Services, a one- third scale metal aeroplane waspurchased as a training rig and installed in the FTG. Heating oil was sprayed outofvariousports in the engine, wing and wheelareas thus creating different scenarios of a much more realistic typefor Airport Fire Fighters to train with.
3. W  hen the rig becameoperational in late 1991, appliances startedtodischarge foam on a regular basis during all training sessions. It was the dischargeof this foam on a regular basis and the passageof that foam in the groundwatersandrainwater falling ontheFTG and moving through the shale that gave riseto the water pollution to the westofthe Airport.

3. T h  e pollution

1. In 1993 itwas discovered that foamingwaterwasemerging from an excavated land drain in a fieldtothe northwestof the FTG and, at the sametime, that the private supplyof that farm had beencontaminatedby material giving riseto a brown colouration and substantialfoaming.
2. T h e CommitteecommissionedEnvironmental Consultants from the UnitedKingdom with considerable experience in this field to assist it. An urgent, early precautionary measure to the discovery of the pollution was to provide the householder with a new borehole. The Committee decided to advise households lying tothe west of the Airport that somecontaminationhad been discovered in a well; it offered totest a largenumberof domestic watersuppliesand to provide bottled water if contamination was discovered.
3. S o mepollutionwhichmightbe attributable tothe Fire Training Groundwasdiscovered but the situation was complicated bysomehouseholdwatersuppliesalso being contaminatedby overflowing soakaways dug too close. Bottled water was provided to all whohad any form of contamination.
4. A s a result of a public meeting chaired by the then Presidentofthe Harbours andAirportCommittee, Deputy John LeFondré,the Committee identified a long-term solution to the householder situation. The advice of the Medical Officer ofHealthwas that there were contaminantsand pollutants of a numberof types, inorganic, organic andmicrobiological (for examples nitrates, pesticides, and e-coli) and that those pollutants should not be there. The Committee invited the Board of the Jersey New Water Works Company Limited to consider all the evidence and to identify whether a new water main linking the bottom of Jubilee Hill to the bottom ofMont á la Brune could be advancedin its capital programme.
5. T h e JNWWCo. Ltd. agreed to alterthetimingof its capital programme and the new main was installed during the period 1994/1995.TheCommitteeconsulted with affected householders and offered to pay the connection feesof those householderswho wished to link to the new main; some15 out of23 affected properties have takenup the offer, becomeconnectedand pay for their ownwaterconsumption.

6. T h e Airport Directorformedan officer groupin1994comprisingmembersofcertainStates' departments and the JNWW Co. Ltd. in order that all could keep their Committees/Board advised. The Airport Director chaired quarterly meetings with officers of Agriculture and Fisheries, EnvironmentalHealth, Environmental Services, Jersey New Water Works Co. Ltd., the Law Officers Department, Medical Officer of Health, Planning andEnvironment, Public Services, and others asarranged on anad-hoc basis such asThe National Trust, householdersetc.
7. T h e Committee instituted a systemofwatermonitoringby its appointedEnvironmental Consultants on a quarterly basis and, latterly, 6-monthly.These results were publishedconfidentially to eachhouseholder whorequested them and were also provided in 1995 to a numberofStates'departments.

4. A  n alysis/Investigations

1. S in ce thediscoveryofthe foam in 1993 and the formation of the officer groupin 1994, the quarterly monitoring regimewas instituted. TheCommittee's Consultants couldnot find a laboratory in Europe which was capable of analysing the substances involved and so went to the laboratory of the foam manufacturerintheUnited States. Watersamplesweresent to their laboratory and reports received asto the levels ofcontaminationinthemany domestic water samples tested. Thecompanywas helpful and provided varying piecesof scientific and toxicological information relating to its products.The Airport Director and the Committee's Environmental Consultants bound themselves by a confidentiality agreement to the manufacturerrelatedtothe chemical constituents of the manufacturer's foam product. The equipment of the official analyst in Jersey andofan identified UnitedKingdom laboratory (M-Scan) were eventually able to take onthese sampling responsibilities in 1999.
2. In September2000, the manufacturer brought a teamof scientists to meet with the officers ofthevarious departments andMembersof the Harbours andAirportCommittee. A thorough exchange of information took place and the Medical Officer ofHealthsoughtandobtained such information as was available in relation to these products and their effect on human health, animal health or aquatic life. It wasatabout this time that the foam manufacturingcompany withdrew from makingthe product and stoppedsupplying it to Airports.
3. C o nsiderableanalysis took placewith regard to thecontaminants from the FTGand their effect on Jersey potatoes, cauliflowers etc.; the results were that the vegetablescontainedno discernible levels ofthe foam contamination but all the potatosamplesonandoff the Island, includingorganic, contained traces of butyl carbitol which had been the marker used by the monitoring process – it was discontinued at that point.
4. T h e Committeeworked with the Public Services Committee in order to produce a scheme to "clean up the area". This scheme would comprise a methodof remediating (cleaning) thecontaminated shale and soil in the FTG, isolating theFTGso that watercouldnolonger run through it carrying contamination outside and, lastly, providing a training ground in ordertomeet the Committee's legal requirements with regard to aviation safety.
5. A f ter a thoroughsurveyof the airfield and the surrounding areas, the Committee determined that the existing FTG was the only place on which Airport Rescue and Fire Fighting Service could train. Boreholes were driven into the rock and shale to determine the level of contamination. A report concluded that the majority of the foam whichhadbecomedissolved into ground and rainwaters had emerged to thewest into St. Ouen's Aquiferandunder the sea wall into thebeachbeyond.
6. R e maining in theshaleoftheFTG were the heavier oil fractions arising from residuesofoilburning on the rig, i.e. a mixtureofunburnt fuel, partially burnt fuel (or charred) fuel, heavymetalsinmodestbut discernible quantities. The heavymetalcomponentof the groundpollution is likely tobe largely derived from the historical burning ofold engine oil and scraptimber.Theseproductsdidnotmoveatthesame pace as thewater through therock and, provided they could be stopped from moving, they couldbe left in situ.

7. F o urschemeswerelooked at to solvethe problem as follows –

1. R emove the entire Fire Training Ground (30 metresdeep) and deposit elsewhere replacing with concrete walls, supports and gabions; insert concrete saucer as replacement Fire Training Ground. Total cost approximately £30 million (1999 prices) with the U.K.being a possibleplacetodumpthecontaminated rock, shale and soil involved.
2. Removing 10 metres' depth of contaminated stone and disposing of as in the paragraph above; replacement Fire Training Ground installed. About £22 million (at 1999 prices).
3. T he4-partscheme set out in 4.8below costing between £3.7 and £4.9 million (at 2000 prices).
4. Do nothing – this was unacceptable for environmental, health and good government reasons. Additionally, the Water (Jersey) Law 2000 wasunderdiscussion and the Public ServicesCommittee alerted the Harboursand Airport Committee tothe fact that when the Lawcame in the Committeewould have to actin a way that the PublicServicesCommittee would demand as Regulatorunder the Water Law.

8. A schemewas proposed in 4 parts –

1. R  emediatethesite by lifting 2  metresor so ofcontaminatedshale/rock,putiton an impermeable base, cover it with soil andgrass and leaveitas a bundon the outside edge of the FTG.
2. I nsert a deep concretewallon the easternface to prevent groundwater running through the FTG; clean water would runaround the contaminatedarea.
3. P lace a concretecapon top of an impermeable base so that 32  tonne fire appliances could train with a new rig installed in the centre and containing all burnt fuel, unburntfuel,water, foam and other residues.
4. I nstall a new fire training rig basedongasor oil.

9. T h e Committeedeterminedto carry out the process in paragraph4.8above and, working with thePublic Services Committeeand its officers, submitted a planning application.

5. C  o nstruction

1. T h e Committee commissioned the Public Services Department engineers and a number of other engineering/environmental and drainage consultants to put forward detailed design proposals to the planners. TheWaterRegulator approved theplans in 2001 and the remediation process commencedin 2002. A Project Managerwasappointedand is operatingtheremediation, construction etc process for the Committee satisfactorily.
2. T h e lastphaseof the Fire Training Ground project wascompleted in September2004.
3. D u ring the design phaseaninnovativemethodof disposing of slightly contaminatedwater by evaporation on site had been worked up by the Principal Engineer and the Design Team. A protective patent application has been madeasitis the view oftheconsultants that this schemecouldhavegreatbenefitsto many airports aroundtheworld in temperateclimates with the sort of rainfall experiencedin Jersey; it could generaterevenue.

6. C  o sts

1. T h e Harbours and Airport Committee has paid £1,639,272 from the Suspense Accountasat 11th October 2004 for –

£

1. The investigation – including engineering costs of installing monitoring boreholes, sampling and analytical costs, travel, accommodation and subsistence for professional advisers. 814,694
2. Paying  for connections  of affected households to  JNWW

mains water supply. 30,690

3. Remedial  scheme including capital  expenditure  and

operational costs. 309,982

4. Professional advisers' fees notcontainedin (a) above. 399,057
5. Working capital interest chargedbyTreasury. 84,848 1,639,272 Capital 2002 – FTG remediation (est. cost) 4,806,000 Total 6,445,272 Claim offset from manufacturer 2,600,000

2. A s a result ofP.198/2002 – the States agreed topayall the costs associated with the Fire Training Ground remediation and construction project. The estimated current balance tobemet by States, basedon the abovefigures,is therefore £3.85  million. This will alterdependentuponany further costs to bemet from the Suspense Account, e.g. legalfees and anychanges to estimated £4.8  million remediation costs.

7. T h  e pollution

1. U  nburnt fuel  derived  from  fire  training is  present in discharges  in  2  forms: free phase and dissolved/emulsified. It adheresto soil forming a tarry-like mixture with fine particles which retards the majority of the freephasematerialin soil layers. Any escape from the FTGwouldbe via cracks in the rock. Nofreephase oils have been reported in bore holes beyond the FTGandno complaints of taste or odour attributable to fuel oil have been reportedonanysampling.
2. F ir e Fighting Media – The Foam. The aqueousfilm-forming foam (AFFF)has been used by the Airport Fire andRescue Service for a number of years.Using both PFOSandPFHS is has been possible to track the plume of contamination and, by isolating those substances in samples, identified whichwatercourses, ponds etchave been contaminated.

1. P FOS

P e rf lu orooctyl sulphonate is the first type of fluorinated surfactant material.

2. P FHS

P e rf lu orohexhyl sulphonate is a persistent substance which is a breakdown material from the foam.

3. T h e extent of the pollution is over the 3 time periods,1993-1999,1999-2003and,beyond the sea wall, 1998-1999(seeAppendix 1). This pollution extent over time has been determined as a result ofthemany quarterly, monitoring/sampling processesundertaken by theCommittee.
4. M e dical Advice – TwoMedicalOfficersofHealth have noted the presenceof pollution relating to the fire fighting foam. They have both been consistent intheiradvice that alternative potable watersupplies should bemade available to householders, that the plume ofcontaminationshouldbemonitoredand traced and that long-term action shouldbeput in hand to deal with the problem.BothMoHs were only concerned with the effect on human health but remarked that therewereeffects, as yet unknownor unquantified, onanimal and aquatic life.

5. A significant numberofmonitoring locations have indicated that potableabstraction has comprisedwater containing PFOSand concentrations above the advisory concentration of1.0 microgram per litre. The PFOS present in St.  Ouen's aquiferhas remained at a steady concentration relative to dry weather for approximately 3  years.

8. T h  e claim

1. T h e Harbours andAirport Committee hassuffered considerable expense inresolving various aspects of this pollution and hasasserted that the environmenttothewestof the Fire Training Ground stretching to the sea wall has suffereddamage from the constituents in fire fighting foam. These assertions havebeen rigorously denied by the supplier. The Committee has threatened litigation which the supplier has indicated willbedefended with all its considerableresources.
2. T h e claimand its methodofsettlementis set out in a draft Deed of Settlement proposed between (1) the Harbours andAirport Committee for and on behalf ofthe States of Jersey; and(2) the foam manufacturer. The States ofJerseyacceptedinProjet 198/2002 that it wouldberesponsible for the capital expenditure in the Fireground (approximately £4.9 million) rather than the HarboursandAirportCommitteeon behalf of the Airport.

It is n ecessary for the States to ratify the proposed Deed of Settlement because the Harbours and Airport

Committee does not have the vires to give the warranties in the Deed of Settlement and the potential liabilities arising therefrom.

3. C o nfidentiality. Themain problem with bringing this Reportand Proposition to the attention ofthe States is the need for confidentiality. InthedraftDeedof Settlement, the parties agreeto keep the very existence of this Deed of Settlement and each of the terms in it confidential. The history, background and negotiations over the DeedofSettlementareconfidentialsaveas is required to achieve ratification by the States of Jersey orasis required by law or the properdischargeof official duties by the States ofJersey. Additionally, the nameofthemanufacturer is to be kept from the public domain.
4. C o nfidential documentation.There are over 175 documents,not all of which are confidential, related to the 10 yearsof this pollution and the subsequent claim against the manufacturer. The proposed Deed of Settlement, certain documents which name the chemical constituents and the manufacturer (see Appendix 2)and a confidentialchronology of events compiled by our consultantsandEnvironmental Services for the Medical Officer of Health andtheCommitteeare all available for inspection at the office of the Greffier of theStatesatMorierHouse. They are available for inspection by all States'Membersat any stage prior to the ratification process being debated in the States'Assembly.Members will appreciate how difficult it is to secure a settlement of the claim which the Harbours and Airports Committee considers is beneficial and in the public interest, when the other party insists on an obligation of confidentiality to the extent that the same is achievable; the Committee asks Members to respect the confidentiality which has been agreed.

9. R  a tification

1. T h isReport and Proposition has been lodged well before a proposed date when the Proposition will appear on the States'Order Paper. This will allow States'Members plenty of time to inspect the documents if they sowish.
2. T h e proposed DeedofSettlement has been circulated to States'Members.ThePresidentof the Harbours and Airport Committee willask for the House to go into an "in camera" session in order to give the Attorney General the opportunity to give his confidential advice to States'Membersas to the benefits of ratifying the Deedof Settlement inorder to secure the claimagainstthe manufacturer. None of the data provided to States' Members would be made public so ensuring that the States complies with the obligation of confidentiality contained in the Deed of Settlement.
3. T h e Harbours and Airport Committee does not seek an "in camera" debate with any enthusiasm.

However, the question of settlement or no requires an analysis of the public interest, of weighing the litigation

possibilities and advantages against its risks and disadvantages. As with another recent debate, Members may wish to receive detailed advice as to the legal advice which the Committee has received and it would be inappropriate to put that into the public domain without potentially weakening the case against the supplier. That factor is in addition to the requirement of the supplier that no settlement would be possible without a very high degree of confidentiality. In the circumstances, the Harbours and Airport Committee has reached the view that it would be in the Island's best interests to seek an "in camera" debate of the proposition.

12th October 2004

Pollution extent over time

Spread of pollution over time

Document Reference Date of Issue Document Description 3508/2–1 May 1995 Follow-up Groundwater Pollution

Investigation

3519(7) June 1995 Domestic Property Sample 3508/2–2 November 1997 Groundwater Investigation of

St. Ouen's Aquifer

3508/2–3 March 1998 Groundwater Contamination Event

Summary up to November 1997 3508/2–4 February 1998 Domestic Property Report –

representative example

October 1998 documents were referenced with a JHA number (Jersey Harbours d  Airport  Committee)  so  that  each  reference  was  unique  and  could  not  be nfused by others produced in the same series

A13 March 1999 Interim Report on the Contamination

Emanating from the Airport Fire Training Ground

A16 March 1999 Interim Risk Target Evaluation relating

to the Contamination Emanating from the FTG

A24a-e July 1999 Advisory Summaries for the Harbours

and Airport Committee President relating to Geology, Water Quality and Aquifer Contamination.

A32 (2 volumes) July 1999 FTG Investigation-Factual Report A36 (Vol. 1) October 1999 Groundwater Contamination

Investigation in St. Ouen's Bay

A49h August 1999 Property Owners' Report –

representative example

A50 August 1999 Summary Report on St. Ouen's Coast

Private Supply Abstractions