Committee of Inquiry - Toxic Incinerator Ash Dumping in the St. Helier Waterfront Land Reclamation Schemes

STATES OF JERSEY

COMMITTEE OF INQUIRY: TOXIC INCINERATOR ASH DUMPING IN THE ST.  HELIER WATERFRONT LAND RECLAMATION SCHEMES

Lodged au Greffe on 10th June 2008 by Senator S. Syvret

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to e st ablish a Committee of Inquiry in accordance with Standing Order 146 in order to examine all matters

relating to the handling and dumping of toxic ash from the Island's municipal waste incinerator into the marine land reclamation sites and other areas; and, specifically –

(a ) to examine the breakdown in public administration which enabled the irresponsible and unsafe

dumping of the toxic ash and to examine why this was able to occur and to consider what improvements and safeguards should be introduced in order to ensure that public administration is subject to effective checks and balances;

(b ) to consider what, if any, additional monitoring and precautions should be introduced to safeguard

human health from the toxins within the reclamation sites;

(c ) to consider what, if any, additional measures should be taken to protect the marine environment

from the toxins within the reclamation sites;

(d ) to consider whether States departments placed Jersey – and by extension the United Kingdom – in

a position in which it has breached its obligations under the OSPAR Convention as a result of the dumping;

( e ) t o examine and report on any related matters which the Committee considers relevant to its

inquiry.

SENATOR S. SYVRET

REPORT

It is plain on the evidence, as described in this report alone, that the health and welfare of the people of Jersey, the Island's environment and the marine environment which we share with our neighbours, have been needlessly put at risk because of a systemic and cultural failure of public administration in the Island.

A complete breakdown in effective checks and balances within the Island's public administration has occurred. The evidenced facts being clear – the States of Jersey must finally face the truth and learn the necessary lessons. The land reclamation sites which surround St.  Helier's harbour area are toxic waste dumps.

Moreover – they are toxic waste dumps which have needlessly exposed the public to potential human health risks.

Moreover – the land reclamation sites are toxic waste dumps which are sea-porous and subjected to the vast hydro-pneumatic forces generated by Jersey's 13  metre tides.

Therefore St.  Helier's land reclamation sites represent a massive source of potentially hazardous leachate into the sea.

How on Earth was this able to happen?

The States finally needs to recognise that the ash dumping – whilst a problem of itself – was really a symptom of a  greater  problem,  namely,  an  apparent  intrinsic  inability  of  the  Island's  government  to  subject  itself  to meaningful and effective regulation.

Longer-serving members of the States and members of the public may recall that for many of the early years of the controversy – when people first started to object to the ash dumping – it was frequently claimed that there was no problem, that the ash did not represent a threat to human health, that it was "inert", that it posed no risk to the environment and that it was not toxic. Sometimes one still hears claims to that effect. Let there be no mistake about this: the ash is toxic; it always has been; even setting aside components of the ash such as dioxins, furans and polychlorinated biphenyls (PCBs), which only really became understood by science in the last half-century, many of the toxic heavy metals that are components of the ash have long been known to badly damage human health. In some cases this knowledge has existed for well-over a century.

Even now the incinerator and the handling and disposal of the resultant ash fail to meet acceptable standards. However, some improvements in the handling and disposal of the ash took place from the mid-1990s – after years of campaigning in the face of official denials. This leaves a period of time from the opening of the incinerator in the late 1970s to the mid 1990s when the behaviour of the Island's public authorities can only be described as utterly irresponsible and cavalier.

The question that therefore arises is this –

H o w   is it that the entire panoply of public administration in Jersey – some parts of which have

specific duties to protect human health and the environment – can have failed to take proper steps to protect people and the environment from the toxic ash over a period of at least 15 years?

I know the answer to this question and it is a question that goes to the very heart of whether Jersey is, in fact, structurally and culturally capable of governing itself in a manner compatible with the health and welfare of its people? This proposition and inquiry is the test.

Why is an inquiry necessary?

To gain an expertly informed assessment of the ash dumping, its history, the deficiencies – be they organisational or cultural – of public administration which allowed this toxin-dumping to continue unchecked for so long, the long-term  issues  arising  from the  heavy pollution  of  the sites  and  to produce a detailed report and set  of recommendations – for  protecting  human  health,  the  management  of  the  pollution  in  the  sites,  and  of improvements to public administration so as to safeguard against similar failings in the future.

Why a Committee of Inquiry?

Having taken a long-term interest in this subject I know from personal experience that – sadly – a great number of straightforward lies have been told to politicians by certain civil servants. Therefore only a quasi-judicial process such as a Committee of Inquiry will be able to compel attendance of witnesses and examine them under oath – any  untruths  being  spoken  then  being  perjury.  The  States  of  Jersey  (Powers,  Privileges  and  Immunities) (Committees of Inquiry) (Jersey) Regulations 2007 contain a wide range of powers to enable the Committee to operate effectively and also make it clear in Regulation  8(3) that the immunity from civil or criminal proceedings given to a witness does not apply "to evidence given or documents produced by that person which he or she knows to be untrue".

It is the case that Committees of Inquiry can, by law, regulate their own proceedings. The relevant passage from standing orders is this –

"147  Committee of inquiry: proceedings

1. A  committeeof inquiry mayregulate its ownprocedure for theconduct and managementof its proceedings including, but not limited to,venueandadjournments.
2. P  roceedings before a committee of inquiry shall be held in public unless the committee, in the interests of justice or the public interest, decides that all orany part of the proceedings shall be in private."

The powers of a Committee of Inquiry are described in detail in the States of Jersey (Powers, Privileges and Immunities)  (Committees  of  Inquiry)  (Jersey)  Regulations  2007.  In  respect  of  taking  evidence  under  oath, Regulation 6 says –

"6 P ower to administer oath

1. A committeeof inquiry may require a person appearing beforeitto give evidenceonoath.
2. T he chairman of a committee of inquiry is authorized to administer the oath for this purpose."

Whilst it is accepted that the Committee of Inquiry will make its own decisions in respect of the procedure it chooses to follow, this proposition is brought forward in the hope that the proceedings will be held in public unless it is absolutely necessary to here any evidence in camera.

It is also my view that the Committee of Inquiry will not be able to access the truth unless it takes evidence under oath – with the resultant risk of perjury should any witness knowingly state falsehoods to the Committee.

The Evidential Background

Jersey's municipal waste incinerator commenced operation in 1979. It is also worth noting in passing that the incinerator itself produces such high degrees of toxicity and pollution from its chimney that it has been illegal to operate any such plant in the European Union for over a decade. Were Jersey a full-member of the EU – the incinerator would, by law, have been closed down.

Returning to the casual dumping of the combined ash into Jersey's land reclamation sites, this practice continued from 1979 until approximately 1995 – when, finally, after many years of campaigning – the authorities were compelled to adopt a safer and more responsible disposal methodology.

In the early 1990s, Jersey's Public Services Department, in response to concerns, commissioned Warr en Spring Laboratory to undertake an analysis of emissions from the incinerator. Included was a detailed analysis of the ash produced by the incinerator. The table I reproduce below is to be found on page  29 of the WSL report –

Table 1

TABLE 9 –CONCENTRATIONS OF METALS IN COMBINED RESIDUAL ASH

Amongst the other information in the report are two tables – 11A and 11B – to be found on pages 30 and 31 of the WSL report. These two tables describe the CONCENTRATIONS OF DIOXINS AND DIBENZOFURANS IN  COMBINED  RESIDUE  ASH", for  units  2  and  3  respectively.  These  showed  the  total  dioxin  and dibenzofuran content of the combined ash from unit 2 to be 6.4112 ng-g, and a concentration of 0.5014 ng-g for unit 3.

Thus the WSL report demonstrates scientifically that the combined ash from the incinerator contains a variety of toxic heavy metals and polychlorinated compounds such as dioxins and furans which are a proven threat to human health. To further demonstrate this fact I reproduce below a section of a table titled "Toxic Effects of Common Hazardous  Compounds". This  is  from  page  476  of "Hazardous  Wastes:  Sources,  Pathways,  Receptors" by Richard J. Watts, published by John Wiley & Sons, ISBN 0-471-00238-0.

Table 2

and stomach cancer in animals; no documented

human cancer Hexavalent chromium Readily absorbed by the Lung cancer

skin where it acts as an

irritant and immune-system

sensitizer; oral absorption

results in acute renal failure

Mercury Central nervous system Central nervous system impairment including injury dysfunction, memory deficits,

to motor neurons; renal decrease in psychomotor disjunction skills, tremors

Nickel Not highly toxic, headache, Immune system effects shortness of breath resulting in allergic contact

dermatitis

It appears that the WSL study did not test for polychlorinated biphenyls (PCBs) but it is likely that PCB is also present in the ash given its past use in electrical equipment. Only 5 of the 15 metal components of the ash identified in the WSL report are described in Table  2 so one must consider the fact of the existence of additional hazardous components in the ash to those listed in the table.

Therefore, when considering human exposure to the ash and potential health impacts, we must acknowledge that we are not dealing with the possible effects of just one toxin – but a cocktail of toxins. Depending upon the degree and type of exposure, the potential health impact could be greater than that predicted for a single toxin. Moreover, there may be a synergistic effect, that is, an additional effect greater than that which might be predicted from exposure to the individual toxins or the toxins combined.

In terms of real-world human health impacts of exposure to the incinerator ash, it might be hypothesised that we are unlikely to be dealing with acute effects. It is likely that if any human health impacts flow from exposure to the ash, it is the chronic effects, rather than the acute effects that we need to be particularly concerned with. If any chronic effects have occurred, the most likely cohort of the affected will be site workers exposed to the combined ash. It should be stated that no manifestation of ill health effects potentially caused by the ash have yet been detected. It is to be hoped that none occur, although a detailed epidemiology study would need to be undertaken over an extended period of time.

However – and this is one of the prime concerns underpinning this proposition – if no human health impacts have occurred – it is more by luck than judgment.

The States of Jersey has committed gross errors, and exhibited a cavalier attitude to the dumping of the ash. These include the dumping of the combined ash – a proven cocktail of toxins – into a sea-porous land reclamation site; leaving the dumped ash exposed to the air for extended periods of time enabling the dried ash to be blown across pedestrian areas and onto nearby buildings; causing people to become exposed to the ash; failing, for many years, to protect workers on the sites from close exposure to the ash over extended periods of time and failing to properly take into account the long-term future use of the sites once completed.

In its error-strewn and incompetent handling of the incinerator ash, the States of Jersey has played Russian roulette with the health of this community and our environment.

It has always been – even as a lay-person – very easy to establish 3 basic facts –

1 : th a t the incinerator ash was a cocktail of proven toxic components;

2 : th a t dumping the ash in a manner that exposed workers, the public and the marine environment to

it was not a good idea;

3 : t h at other dumping methodologies which could be employed would be an improvement; for

example, disposing of the ash in lined pits or binding the ash in some form of matrix material thus rendering it into a less environmentally available form.

If a lay-person could readily establish these facts within days of taking an interest in the subject, how can it be that every relevant States agency failed, to a lesser or greater extent, to respond in an adequate and/or timely manner to issues associated with the ash dumping over a period of at least 15 years?

And what does this say concerning the quality and safety of public administration in Jersey?

What risk do these sites pose to the marine environment in the next 50, 100 or 150  years? And is this our problem? Dr. Michael  Romeril, the Environmental Adviser, in a report of 1992, quotes a figure of 17, 217  tonne of combined ash dumped in 1988 alone. As is well documented, the volume of waste going to incineration, and consequent ash disposal, has risen steadily over the years. However, let us make a conservative estimate for the amount of ash dumped from 1988 until 1995 when dumping practice changed. Take a conservative average of 17,000  tonnes per year and multiply by 8. This gives a figure of 136,000  tonnes of combined incinerator ash dumped in the site in a reckless manner – in this 8  year period alone.

But it should be noted that this figure completely excludes the many tens of thousands of tonnes of combined ash dumped from when the incinerator first came on-stream in 1979.

Dr.  Romeril goes on to quote the amount of some of the heavy metals in the 17,217  tonnes for the single yea 1988 –

" a p p roximate total input per year of 440kg cadmium, 4.8kg mercury and 64,000kg lead. Whilst salts of these metals are not particularly soluble, an aging and mineralization process may continue for hundreds of years. (Hjelmar, 1987)"

Some important observations –

• These volumes need to be multiplied for every year of dumping from 1979 until 1995.

• These figures deal only with 3 of the 15 metals identified as components of the ash by the WSL report.

• These figures do not deal with the dioxin, furan and PCB content of the ash. These toxins, whilst not water soluble, could nevertheless be transmitted to the broader environment through the sea

water acting as a vector for ash from the sites. Additionally, these toxins may be released to the environment every time contaminated areas of the waterfront are excavated.

However,  the "official" view  of  the  relevant  States  departments  of  the  risks  these  contaminants  pose  was remarkable for the simple incompetence and dishonesty which was routinely displayed.

Indeed so lax and incompetent were the Public Services Department, that it took until the mid-1990s for it to produce a report that considered future strategies for dumping the ash – and even then the report only came about as a result of sustained political pressure. This leaves us considering a period of nearly 2  decades of cavalier irresponsibility and intransigence on the part of the Island's waste disposal authorities.

To say that the report itself, Incinerator Plant Ash Disposal – Strategies for the Future', was riddled with inadequacies would be an understatement. In the early 1990s, oyster farmer and marine biologist, Mr.  Tony  Legg took a detailed interest in the ash dumping and related issues. He produced a number of papers which he supplied to the authorities and interested politicians, myself included.

In a commentary on the PSD report referred to above, dated February 1995, Mr.  Legg makes the following observation –

" T h e document contains numerous technical errors, misinterpretations and, it would appear, deliberate attempts to confuse and mislead lay politicians. If this is a document to lay to rest the "criticisms originating from sources with little knowledge or experience of the complex issues involved" then it falls well short of the mark and exposes instead the Department's poor grasp of wider issues. It also exposes the Department as wishing to avoid, rather than comply, when their position as enforcer/competent authority should be beyond reproach."

Speaking as someone who witnessed the performance of the Public Services Department at first hand, as a member of the Committee from the end of 1990 until 1993 until I resigned over this issue, I can only agree entirely with Mr.  Legg's assessment of the performance and motivations of the Department.

In a paper written in respect of the then proposed dumping of ash in the south of La Collette site, Mr.  Legg considered the potential for Cadmium to leach –

" F r o m the above observations it is evident that an oxidising environment that is high in chlorine, that fluctuates in salinity, that occasionally is anoxic with free sulphide ions, that has a water table comprised of tidal and field water capacity interstitial solute, and has energy put into the system by tidal movement of that solute, is very well suited to making cadmium bioavailable. In addition, the ash material is already in an oxidised state, thereby speeding up the process.

" In s itu, the ash is likely to be just above the MHWS mark and some 2  meters deep with c. 1  mete overburden. After normal rainfall or windblown spray this zone will be at field capacity with water filling all available pore spaces. When the tide rises or falls this water will be moved and exchanged, salinities will change, waters will drain and cadmium enriched leachate will form."

Although written in respect of proposals to dump ash in a layer above MHWS across the La  Collette  2 site, thes observations could apply to the West of Albert site where ash was dumped extensively in a layer across much of the land reclamation scheme. The processes described could be occurring now or begin to occur in the future. A further factor that must be of grave concern is the potential for tidal forces to extract material from the sites. This is problematic for several reasons, not least that such erosion would cause the toxic ash to be taken into the marine environment in substantial quantities. There is a risk of significant quantities of infill material being removed from the reclamation sites through the action of the sea. Mr.  Legg also highlighted this danger in a paper –

" H y d ropneumatic Erosion: This process warrants most consideration. It is the process that leads to Blow Hole' formation on exposed cliff faces. Where wave action is severe, voids are formed within the eroded face. Subsequent wave action then compresses air within the void which can then expand explosively. Of interest is that this process can continue many tens of meters from the point of wave action and many meters above the high tide mark. (St. Catherine's Breakwater had a void 26 meters deep caused by this process, 25 km fetch). It may be that no area within the new reclamation is risk free from this process, including high level profiles."

POSSIBLE HEALTH IMPACTS

In 2001 the Health and Social Services Committee, under my Presidency, requested its officers to prepare a report which examined the health implications of the contaminated reclamation sites. The then Medical Officer of Health, Dr. John Harvey, and Health Protection Officer, Steve Smith, co-authored a report titled: Health Impact of the West of Albert Pier Reclamation Site.' I quote from that report here –

" R e c ent published studies have recognised the possible cumulative and synergistic effect of multiple hazardous agents, and have looked at the effect of exposure to hazardous sites, not individual toxins. The exposure risk is residence near to contaminated sites.

" T h e risk of adverse birth outcomes has been the focus of two such studies. A study of all residence near landfill sites in Great Britain showed small excess risks (c.10-20%) of some congenital anomalies and low birth weight. This was not greater near sites with special waste (i.e. known toxic waste such as

incinerator ash) possibly because these sites were subject to strict regulation. The authors noted that the small

excess could be due to residual confounding (unmeasured effect of deprivation) or data artefacts. Another Europe wide study showed higher levels of risk for congenital anomalies. This study, known as EUROHAZCON used data from 7 registers in 5 countries. It showed an increased risk (2– 3 times higher) for mothers living within 3km of landfill sites.

"A   s t udy in Canada showed increased risks of certain cancers for men living near solid waste landfill sites.

The increases of twice the risk were shown for cancer of the pancreas in men living within 1.25km, cancer of the liver for those living within 1.5km, and non-Hodgkin's lymphoma within 2km."

As far as I am aware, this work by Dr. John Harvey and Steve Smith, represents the very first time frank and professional information concerning possible health impacts arising from the ash dumps, was put before any States committee – this after 23 years of incinerator operation. One can only wonder what else the public and the Island's politicians are not told?

The observations of Dr.  Harvey and Mr.  Smith quoted above show that a link between waste dumps and il-lhealth has been demonstrated epidemiologically. It also illustrates the fact that medical science is a constantly evolving field  of  work.  It is  feasible  that in the  not distant future,  medical science  may  concluded that multi-toxin compounds, such as the incinerator ash, represent a greater threat to human health than is recognised today. It should be noted that the toxicity of substances is rarely down-graded.

More usually, as scientific knowledge advances, substances are demonstrated to be more toxic than previously thought. Even the scientific orthodoxy of the day can prove to have been wrong. Organophosphate pesticides and asbestos were at one time not regarded as posing a particular health risk. Likewise BSE was thought to be not transmittable to people and thus did not represent a human health risk. The prevalent scientific orthodoxy of the day was wrong.

However – it must be recognised that when considering the incinerator ash we are not dealing with speculative toxicity. As shown above, many of the components of the ash are proven, known toxins.

The long-term failure of the Environmental Health Department (now known as the Health Protection Department) has to be regarded with the utmost seriousness. There is simply no hiding place from this fact. Until the arrival in the department of Dr.  John Harvey and Steve Smith, the Environmental Health Department, preceding MOHs and Health and Safety at Work failed in their duty to intervene and seek to protect the public from a health risk posed by the mass dumping of an unambiguously toxic material. How could this have happened and what needs to be done to ensure that no similar failure occurs again?

For example, questions need to be asked of Dr.  Richard Grainger, a former Medical Officer of Health, concerning his failure to act appropriately in this matter.

In a letter to me, dated 15th August 1995, Environmental Adviser, Dr.  Michael Romeril, enclosed a letter he had received from Dr.  Grainger, dated 11th July 1995. In this letter Dr.  Grainger said–

" I h a ve liaised with Tony Bruce, who has taken over from Tony Littlewood as Chief Environmental Health Officer, and can confirm that we will be involved as and when necessary on this issue. Certainly, investigations that we have taken up to now, do not show this to be a major health issue, although obviously a highly emotive political problem."

Dr.  Grainger's intransigent attitude to the subject is further demonstrated in the fact that the Public Services Department quoted his media comments in their report concerning future ash dumping strategies –

" A l l of these statements have originated from uninformed sources. The reality is, as usual somewhat different –

(a) The Medical Officer of Health was reported in the Jersey Evening Post on 7 September 1993 as follows: "Dozens of people die every year from smoking related diseases such as cancer and

emphysema but not one death has been traced to refuse waste – if we want to clean the atmosphere we

should do something about it (smoking)."

A number of observations have to be made concerning Dr.  Grainger's comments –

• Smoking is indeed a serious human health threat and that fact is widely known amongst the public, most of whom are able to take decisions to cease their exposure to tobacco smoke. People

are generally unaware that that the ash is a threat to their health, and the exposure of workers and the public to its toxic components is entirely involuntary.

• Exposure to the toxic components of the ash of people who may face other health risks, such as smoking or pre-existing medical conditions, represents an additional health burden – not an

alternative health burden. Dr. Grainger refers specifically to"refuse waste", not the combined incinerator ash and its toxic components – a demonstrably toxic material, tens of thousands of tons of which are layered

across the reclamation sites. The ash was dumped in a manner that routinely exposed workers and the public to it.

• Dr. Grainger asserts that "not one death has been traced to refuse waste". This assertion is certainly wrong. For decades medical science and health protection experts have recognised the

fact that refuse waste, especially in concentrated dumps, represents a variety of threats to human health. These include infection from putrescent waste, threats from vermin, exposure to dusts from such material, lung damage, the ingestion or inhalation of toxic substances in the refuse and the potential for illnesses such as emphysema, cancer and renal failure as a result of chronic, long-term exposure to hazardous substances emitted by waste dumps, for example to the air or water supplies.

• Can it be considered remotely professional or ethically acceptable to simply brush aside and dismiss public exposure to thousands of tonnes of material that contains a cocktail of toxins, such

as cadmium, mercury, arsenic, lead, dioxins, furans and PCBs, by simply pointing to another hazard, such as smoking?

The attitude of Dr. Grainger came as no surprise to me, it being all of a piece with the self-interested denials of every other culpable States agency. In the early 1990s former Senator Nigel Querée and I arranged to meet with Dr. Grainger to discuss our concerns with the ash dumping. We pointed out that the ash was toxic and presented photographic evidence that showed the haphazard and irresponsible dumping of the ash next to areas where the public were walking. His response was to angrily and fearfully dismiss our concerns. The most he conceded was that the seagulls feeding on the unburnt putrescent waste in the ash might be contaminated. It should be remembered that we are not considering a material that might, hypothetically be toxic. The ash contains a cocktail of proven toxins.

Dr.  Grainger's approach should be compared and contrasted with other expert medical opinion. Neither the previous Medical Officer of Health, Dr.  John Harvey, the then acting MOH, Dr.  Duncan Nicholson or senio Health Protection Officer, Steve Smith have ever disputed the facts that the ash was toxic, that people should not be exposed to it and that the dumping practices of the 1980s and early 1990s were wrong and unacceptable.

In May 2002, at the request of my Health and Social Services Committee, the United Kingdom Chemical Incident Response Service was asked to undertake chemical hazard investigation of the West of Albert site. That report, by Giovanni Leonardi, is included as an Appendix. As a part of this work, an overview of previous documents was undertaken. Mr.  Leonardi summarised some earlier findings –

" A r s enic, cadmium, copper, lead and zinc in stockpiled or fresh combined ash from the site, as well as quenched bottom ash, are considerably higher than the threshold values considered acceptable by ICRCL guidance for domestic gardens and allotments, parks, playing fields, open spaces, hard cover and built up

areas. Mercury concentration in the same samples is at the ICRCL threshold value for domestic gardens and

allotments. Ash, arsenic, cadmium, lead, copper and zinc content exceeds the Dutch action level for contaminated land, whereas chromium content exceeds the Dutch trigger level."

Later in the report, Mr.  Leonardi went on to address the following question –

"24. I s there a pathway between the source of the contamination and any potential targets (human,

animal etc.)?

T h e re are four potential pathways:

direct contact between humans and contaminated soil on the site

bioaccumulation of dioxins and mercury in the food chain, and possible human exposure via the food chain

migration of dioxins and metals to the sea and impact on sea life. This is the major potential effect of groundwater flows described in section  11

migration of dioxins and metals to fresh water and possible human exposure via water. It is unclear how much this pathway can in fact be confirmed, but the potential is implicit in the

groundwater flows described in section 11."

To recap – we can see from the evidence – I repeat, evidence – of the Warr en Spring Report, the table from Hazardous Wastes: Sources, Pathways, Receptors, the observations of Dr. John Harvey and Steve Smith, and the report by Mr. Leonardi that the ash from Jersey's municipal waste incinerator is a toxic waste.

Moreover – the ash is not merely a simple, single toxin. The ash is clearly a multi-component cocktail of many proven toxic, mutagenic and carcinogenic elements.

HEALTH AND SAFETY AT WORK ISSUES

Having laid out the human health issues above, I need not repeat those facts in this section. We must, however, come to grips with another clear and shocking failure of public administration in the Island. Jersey has legislation – the Health and Safety at Work (Jersey) Law 1989 – designed to protect workforces from occupational hazards. Under this Law employers have a range of legal duties which include –

• making the workplace safe and without risks to health

• keeping dust, fumes and noise under control

• ensuring that articles and substances are moved, stored and used safely

• to take proper precautions to prevent employees being exposed to substances which may damage their health

• to give employees the information, instruction, training and supervision necessary for their health and safety.

Whilst this particular Law came into effect in 1989, the 5 requirements listed above represent a commonsense approach to protecting a workforce of the kind that we would expect any decent, ethical employer to follow. It is also the case that, whilst codified in this Law – there has always been an inescapable general duty of care by a government to protect the public and workers from exposure to known toxins.

By these standards what can we say of the States of Jersey? From the late 1970s when the incinerator first came on-stream until the mid-1990s, the States of Jersey caused and allowed all 5 of these principles and practices to be broken and cast aside in respect of employees – either their own or those of contractors – working on the reclamation site projects.

There are a variety of photographs which show merely some of the degree of worker exposure to the ash. The actual dumping was carried out without any visible health and safety precautions for workers transporting, tipping and levelling the ash. Of equal concern is the fact that construction workers carrying out excavations and other such works on the sites were not protected from exposure to the ash and its toxic components. I personally witnessed on many occasions workers shovelling through ash pits and infill contaminated with ash, without any protection. This approach continued until the mid-1990s. However, even now, workers are exposed to the material. To illustrate this fact I quote a further passage from the CIRS report by Giovanni Leonardi –

" T h e form of the chemicals present at the site is likely to have been influenced by the presence and movement of water, and predominantly sea water, across the site. This impression is confirmed by reports from the builders that the workers were awash with slurry during the construction work. However, the effect of sea water on the chemicals present on site has not been described in the reports available to CIRS."

I witnessed these construction works and the workers were indeed exposed to pure ash, contaminated infill and ash-rich slurry. This last form of exposure was particularly noticeable during piling operations when water black with ash would gush into the air, often contaminating the men operating the rig.

It was also the case that during the construction of the Esplanade underpass, workers were needlessly and unsafely exposed to substantial volumes of dumped toxic ash when re-excavating the dump site.

The fact that construction workers were needlessly – and unlawfully – exposed to such risks is beyond argument.

What we must do is face up to how things could have gone so wrong – and what new safeguards we need to enact to prevent a repetition.

Conclusion

So – why then did the States of Jersey – why did every relevant public administration agency in the Island – not only fail to handle the ash appropriately from the outset – but for at least 15 years pro-actively engage in deception and cover-ups when concerns were being expressed?

Why did Public Services, Health and Safety at Work, Agriculture and Fisheries, Environmental Health, and Planning and Environment all fail to prevent this disaster – and instead pro-actively engage in concealment?

In many ways – these questions contain within them, their own answer. Which is – having failed to act appropriately at the outset – every agency of the States of Jersey – and the relevant staff within them – then had a mutual interest in closing ranks, maintaining the fictions, deceiving both politicians and the public and engaging in the culture of concealment.

Indeed – precisely the same syndrome we see manifested all too clearly in the Jersey child abuse disaster.

There is simply no escaping the fact that we are dealing with a gross, irresponsible, dangerous and mendacious example governmental failure.

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. Financial and manpower statement

There will be costs involved in carrying out a public inquiry, but such is the potentially serious and long-tern nature of the ash dumping and of the public administration breakdowns involved, that we have little choice other than to investigate the matter comprehensively.

It is difficult to accurately estimate the likely cost of the Inquiry. To provide a general illustration of costs of Committees of Inquiry I include this table –

COMMITTEES OF INQUIRY SINCE 1998 Timescale and costs

Note. The executive support for the Beauvoir, Honorary Police and Housing Trusts inquiries was provided by an existing Committee Clerk in the States Greffe and the salary cost of this support is not reflected in the above figures. For the real' cost of those Inquiries an approximate cost of 50% of a Grade  10 salary for the duration of the Inquiry should be added to the above figures for those 3  Inquiries.

It seems likely that the Committee of Inquiry will need administrative support from the Greffe at a cost of 50% of a Grade  10 salary; this being in the region of£22,000 to £25,000.

The Committee may well need to employ an independent expert, as Scrutiny Panels do. To illustrate the range of these costs I include this table showing the costs for 2007 –

Centeniers' Role – Magistrate's Court £7,086.58 Overdale £175.00 Early Years £11,288.03 GST £21,216.90 Zero-Ten £15,902.31 JCG £4,628.40 Overseas Aid £5,926.69 Migration Policy £5,467.66 Waterfront £1,900.00 Air Quality £6,828.29

Housing Property Plan £13,411.18

Income Support £25,112.26

Telecoms £10,663.97 It will also need to call expert witnesses, probably from the United Kingdom.

Given the serious and complex nature of the issues, it is more realistic to imagine the costs of this Inquiry being akin to the more serious inquiries such as the bus tender process and the building costs enquiry. Essentially, this would place the estimated costs between £50,000 and £100,000.

This is a significant sum – but it must be remembered that we are dealing with an issue of some gravity and, moreover, a subject which will be a long-term problem for this community. This sum has to be contrasted with the circa £300,000 per annum spent by the Chief Minister's Department on spin-doctors.

Clearly and unavoidably, there will be some cost involved in conducting the Inquiry.

Obviously – it  is  possible  that  some  significant  costs  could  arise  as  a  result  of  putting  into  action  any recommendations the Inquiry may make.

But what price human health?

What price protection of the environment?

APPENDIX Report by Giovanni Leonardi, of the United Kingdom Chemical Incident Response Service, 22nd May 2002

SITE  INCINERATOR ASH DISPOSAL SITE NEAR ALBERT PIER, ST. HELIER, JERSEY DATE  22 – 05 – 02   T I M E   9 . 5 0 : 17.00

WHO  VISITED  DR.  JOHN  HARVEY,  DIRECTOR  OF  PUBLIC  HEALTH  SERVICES,  JERSEY; STEPHEN  SMITH,  EHO,  JERSEY;  JOHN  SCALLY,  WATERFRONT  ENTERPRISE  BOARD LIMITED, JERSEY; GIOVANNI LEONARDI, CIRS

INCIDENT SUMMARY

1. States of Jersey Health &  Social Services have been  asked to review  possible  health impacts ofcontaminated land (including incinerator ash) in view ofthe current building developmentsonthat site and possible risks to thosewho will live there, orthosewho will use the leisure facilities
2. States ofJersey are also preparing new wastemanagementstrategyand need todiscuss potential impact of new incinerator

FURTHER INFORMATION

1. W  h o has identified the issue totheHealth Authority?

T h e i ssue was identified within the Health and Social Services Committee

Local Authority Local Residents Other: Environment Agency Emergency Services

2. H  o w was the issuediscovered?

Spill,  leak,  explosion Planning application Complaint etc.*