Response of the Minister for Planning and Environment - Energy from Waste Plant and Ramsar Review of Planning Process - Ministerial Response - 29 March 2010

Findings

Comments

1

The scoping process for the Environmental Impact Assessment (EIA) for the Energy from Waste (EfW) Plant failed to comply with relevant standards.

Requesting  a  Scoping  opinion  for  any  Environmental Impact Assessment (EIA) is not a statutory requirement for a potential developer or for the Minister for P&E.

Notwithstanding the non-statutory status of the request for a Scoping opinion, Article 5 of the Environmental Impact Order specifies that any request for a Scoping opinion must be accompanied by a plan sufficient to identify the land, along with a brief description of the nature  of  the  proposed  purpose  of  the  proposed development and its possible effects on the environment. In the case of the Energy from Waste Plant the decision to locate the Plant at La Collette was only finalised by the States themselves in September 2006. Only at that point could any plan have been provided that indicated with  certainty  where  the  application  for  planning permission for the Energy from Waste Plant would be located.

As indicated above, a Scoping process is not a statutory one. As no formal request for a Scoping opinion was submitted by the applicants indicating a location of the Plant at La Collette, there was no opportunity for the engagement of statutory or non-statutory consultees or the  broader  public  during  a  Scoping  process  as  a Scoping process did not take place.

2

There is no evidence of participation by any non- governmental organisations (NGOs), or of broader public engagement during the Scoping process.

As  no  formal  Scoping  process  took  place,  the opportunity  for  NGO  involvement  was  extremely limited.

3

The Environmental Statement (ES) failed to provide sufficient information in several key areas.

The Minister for P&E was satisfied that the information contained  within  the  EIS  was  sufficient  to  make  an informed decision over the planning application for the EfW and to determine the reserved matters submission.

Notwithstanding  the  Minister's  position,  it  is  clear Scrutiny  and  their  adviser  concentrated  their investigations on the marine environment, although the EIA actually addressed significantly more environmental considerations.  The  applicant  legitimately  argued  that the  EfW  would  not  have  any  potential  effect  on  the

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marine environment given the location of the building, and that the outputs would all be within accepted and recognised limits and guidelines. The mitigation detailed in the EIS is such that any potential impacts would be avoided.

The  perceived  lack  of  information  is  addressed elsewhere in this report – both in terms of the Scrutiny Panel's  Findings  and  Recommendations  and  the Minister's response to them.

4

P&E identified shortcomings in the Environmental Statement, but failed to ensure that their own concerns were addressed fully.

As  stated  in  1.4.1:  "The  internal  P&E  department process  seems  to  have  been  robust  and  thorough  in seeking  information  on  key  issues,  significant  effects and areas of concern". This Finding however relates to Waste Regulation and Water Resources comments on the ES. These comments are meant to highlight the risk of the issues noted and P&E have highlighted them for the  applicant  to  ensure  that  when  construction commences, a suitable method is employed to ensure that  neither  Water  Pollution  nor  Waste  Law  is contravened. The  applicant  has dealt  with this  in the submission and it is important to note that at the time of writing, and notwithstanding the ongoing investigation into alleged pollution of controlled waters at the site, there  is  no  evidence  that  either  Law  has  been contravened. An important tenet of P&E's responses in respect of environmental protection is that ultimately the onus  is  on  the  operator  to  ensure  that  there  is  no contravention of law, or the operator runs the risk of enforcement action and possibly prosecution.

This  Finding  also  seems  to  refer  to  page 30 –  2.1.4, para. 5 of the Scrutiny Report. This point refers to a period of approximately 3 months, at the beginning of which  P&E  raised  concerns  that  a  suitable  discharge method  should  be  proposed  in  a  discharge  permit application.  Ultimately,  a  RAMS  was  developed  and eventually used for the disposal of impacted waters from the excavation.

One  of  the  concerns  of  Scrutiny  is  that  no  method statement  was  produced  prior  to  excavation commencing. The Minister for P&E would contend that there is no requirement under law to have in place a method statement before excavation commencing, as the necessity  for  this  method  statement  is  to  inform  the regulator in respect of the proposed discharge of and mitigation to the affected waters.

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During the period to which the report refers, P&E were in regular and ongoing discussion with the applicant, and in fact had determined that initial submissions made to discharge  waters  proposed  inadequate  mitigation. The applicant  was  therefore  advised  to  resubmit  with  a suitable method. Discussions continued and resulted in a proposal for a series of tanks to be constructed for the settlement  of  solids  coupled  to  a  system  to  remove hydrocarbons  from  water  prior  to  discharge.  It  was necessary to trial this system internally on site without discharging  first,  but  this  proved  fruitless  and  the applicant was again told to find a better solution. This ultimately led to the final solution of larger and more tanks  to  settle  solids,  and  the  resultant  waters  to  be disposed  of  at  the  sewage  treatment  works  at Bellozanne.

The  solids  were  to  be  disposed  of  in  hydraulically independent  cells  at  La Collette  and  were  not,  as  is stated in the Scrutiny Report, to be deposited back into the excavation. P&E advised Scrutiny of the Report's inaccuracy in this respect in our opportunity to correct factual mistakes prior to publication of the final Report.

All parties mentioned in the relevant paragraph of the Report were aware of the issues, were dealing with the issues in accordance with the requirements of law, and the Minister for P&E would therefore contend that there was no "serious failure of process on our part", further there  is  no  evidence  of  consequent  exposure  of  the marine environment to unnecessary risk.

5

The decision to grant permission placed a disproportionate reliance on post- determination mitigation and pollution control measures in order to protect the marine environment.

The siting of the facility was decided by the States of Jersey Assembly in June 2006 prior to the submission of the planning application. This meant that there would always  be  a  reliance  on  post-decision  mitigation. Further,  it  would  be  unreasonable  to  place  upon  the applicant the necessity to determine at the early stage of the  ES  every  methodology  they  were  to  employ  to comply with the goal of protecting the environment. The CEMP points out specific legislation which must not be contravened on peril of possible legal action, and that is the sanction that P&E hold as regulators of the Water Pollution Law.

6

Contemporaneous guidance should have been published when the Planning and Building

Guidance  Notes  to  accompany  the  Environmental Impact Order will be published imminently.

Whilst  guidance  was  not  issued,  the  staff  at  P&E encouraged  discussions  in  connection  with  the  EIA

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(Environmental Impact) (Jersey) Order 2006 came into force.

process with anyone who had queries or concerns. This included developers and any third parties.

7

The Construction Environmental Management Plan (CEMP) is lacking in detail, based on generic rather than site-specific solutions, has not generated a wider dialogue and fails to demonstrably address concerns raised by P&E.

As in 5 above.

8

The monitoring and reporting protocols associated with managing environmental effects during construction appear to be weak, with poor lines of communication and a lack of co-ordination.

This Finding again refers to the same issue that elicited the response to Finding 4. It is important to note that any investigation into any pollution incident will inevitably highlight  communications  and  co-ordination  as  areas with room for improvement; otherwise no investigation would be required.

9

Potential environmental risks associated with the ingress of tidal water and the potential for the site to hold contaminated material were predicted for the construction phase of the project. However, it took more than

3 months from the date that water ingress was first encountered within the excavation to the production of a detailed method statement to deal with this issue. This is considered unacceptable.

The response to this Finding is the same as that given to Finding 4.

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10

The drainage schedule submitted in order to discharge a condition of planning holds limited information with no specific quantification of design values regarding chemical, thermal or volumetric issues.

Drainage  provision  is  a  material  consideration  in assessing any application for planning permission. In the case  of  the  Energy  from  Waste  Plant,  the  Drainage Authority who control provision and capacities designed the scheme as submitted. The Drainage Authority is best placed to comment as to why the scheme was considered appropriate.

11

The consultation process demonstrated several shortcomings and there appears to be an atmosphere of resignation and mistrust surrounding the EfW Plant which pervades the various non-governmental organisations and the public.

The application for outline planning permission and for the  approval  of  the  Reserved  Matters  for  the  Energy from  Waste  Plant  was  publicised  as  required  by  the Planning and Building (Jersey) Law 2005 prior to their determinations.  There  was  significant  press  coverage over the scheme, and the applicants actively engaged the public  and  any  potential  stakeholder  groups  through public  meetings  and  the  Health  Impact  Assessment (HIA)  that  was  carried  out  in  2 stages  parallel  to consideration  of  the  submissions.  Given  the  statutory publicity,  the  press  coverage  and  the  additional  fora promoted by the applicant, there can be no doubt that considerable steps were take to stimulate debate over the proposal.

There  is  a  limit  beyond  which  it  is  unreasonable  to pursue  active  participation  by  an  authority  that  is determining  an  application  for  planning  permission. Added  to  this,  as  the  arbiter  of  the  application,  the Minister  for  P&E  has  to  maintain  a  broadly  neutral stance in terms of considering comments that were made in response to the statutory publicity undertaken by the Department and by Press coverage and the public events that were organised by the applicant.

12

Consultation undertaken as part of the EIA process failed to provide an empowering and participative environment.

See 11 above.

13

NGOs should have engaged more actively in raising concerns regarding the submitted ES. By

There was no lack of effort to publicize the proposal, either  by  Minister  for  P&E  or  indeed  the  applicant, during consideration of the planning application for the plant. The lack of response from NGOs was unfortunate given the concerns raised effectively after the event.

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failing to submit formal comments, they effectively compromised their right to formally influence the determination process.

14

There is a lack of confidence amongst stakeholders in the ability or willingness of the Regulator and relevant States departments to protect the marine environment.

Outside of the groups questioned through the Scrutiny process, there appears to be little evidence presented to support  this  Finding.  Public  engagement  from  the Minister for P&E is at an all-time high. Recent examples of this are the drawing together by the Department of all key  stakeholders  in  the  heating  oil  and  associated hardware market to establish the Oil Care group. This group  approach  has  resulted  in  the  distribution  of information to the public and commercial sector, which we  anticipate  reducing  oil-spills  polluting  controlled waters. EP is also involved in tracking down sources of e-coli  pollution  threatening  Jersey's  shellfish  beds. Significant  effort  and  discussion  with  all  key stakeholders has been undertaken, and protocols put in place following these discussions, which are designed to further  the  protection  of  the  industry.  Stakeholder engagement  is  also  currently  undertaken  with  the agricultural sector in respect of a strategy to tackle the issue of diffuse pollution from agriculture, which has the potential  to  impact  on  surface,  ground  and  marine waters.  A  series  of  stakeholder  meetings  has  been formed and have been successful in their outcomes.

15

Article 3.2 of the Ramsar Convention relates to the reporting of change or likely change to the ecological character of listed Ramsar sites. Article 3.2 is unqualified as to the magnitude or significance of change. At no point has P&E acknowledged the potential for change to the ecological character of the area, nor have alleged

The assertion that Article 3.2 is unqualified is correct. However, it should be noted that the Ramsar authorities are currently working to determine criteria which could trigger notification, and they maintain that there was no need to notify them in respect of the construction of the EfW. There has to be an element of judgement made in assessing the obligations such as those contained in the Ramsar  Convention,  otherwise  it  would  lead  to  a complete  overload  of  the  reporting  system. Notwithstanding this issue, the Department maintain that the  EfW  Plant –  both  during  construction  and operation – will not have any effect on the ecological character of the Ramsar site. In either or both of these contexts  there  was  no  need  to  inform  the  Ramsar Secretariat.

DEFRA  have  confirmed  that  implementation  of  the Ramsar Convention is devolved to the States of Jersey

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environmental incidents known to be under investigation by the Environment Regulator been notified to Ramsar. This is considered to represent a breach of Jersey's obligations under the Convention.

and  decisions  on  whether  such  an  incident  merits notification  under  Article 3.2  rests  with  the  States  of Jersey.

16

All Ramsar sites should have a management plan. The South-East Coast of Jersey Ramsar Site did not possess a management plan at the time of the EIA, although the Panel is aware that P&E are addressing this issue.

The Integrated Coastal Zone Management Plan, adopted by the States of Jersey in October 2008, aims to meet not only our obligations under the Ramsar Convention, but also  obligations  under  a  raft  of  other  marine-related Multi-Lateral Environmental agreements to which Jersey is a signatory.

The  Strategy  sets  out  a  requirement  to  develop management plans for all of our Ramsar sites. In March 2009, a Marine and Coastal Officer was appointed to deliver the Integrated Coastal Zone Management Plan and,  as  such,  has  been  given  the  specific  task  of developing  Management  Plans  for  each  of  Jersey's Ramsar sites.

The  first  management  plan  meeting  with  relevant stakeholders will take place in early March 2010, when it  is  proposed  to  set  up  a  Ramsar  Management Authority. The Department hope to have all of the plans agreed by the end of 2010.

It should be stressed however, that despite extremely scant resources, since 2003 P&E has made considerable progress towards putting in place measures which will greatly  speed  up  the  development  of  such  plans  this year. These are listed chronologically below –

In 2002 the South-East Coast Ramsar site and the Offshore Reefs (not designated until 2005) were included within The Jersey Island Plan 2002 as part  of  the  Marine  Protection  Zone  and  given protection  from  development  and  harmful activities  under  Planning  and  Building  (Jersey) Law 2002.

In 2003 a public information leaflet about Jersey's South-East Coast Ramsar site was published.

In 2005 World Wetlands Week walk introduced 800 people to the South-East Coast Ramsar site

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important, up-to-date baseline for developing the Management Plan in 2010.

 In  2009,  an  Aquaculture  Management  Strategy was commissioned to provide a framework for the sustainable development of this industry. As the majority of the current industry resides within the boundaries of the South-East Coast Ramsar site, a strategy of this nature will be part of the overall Ramsar management plan.

17

The resources required to enable proper implementation of the obligations under the Ramsar Convention have not been forthcoming, and shortfalls in both the one-off and recurrent costs remain today.

In 2002/3 in recognition of the fact that Jersey was not able  to  meet  its  obligations  under  the  various  Multi- Lateral  Environmental  Agreements  within  current resources,  the  P&E  Department  undertook  a  detailed Resource Needs Analysis of the basic funding required to address this situation. The report identified a shortfall of £110k to enable Jersey to meet its basic obligations under a number of marine and coastal MEAs, including Ramsar. Of this, £50k was recurrent growth to appoint a Marine and Coastal Scientist and the remaining £60k was one-off costs for developing the Integrated Coastal Zone Management Plan and remote surveillance and an inter-tidal  survey  of  the  SE  Coast  Ramsar  site.  The offshore reefs were not designated at that time.

A bid for resources was subsequently submitted to the 2003 Fundamental Spending Review, clearly setting out the consequences of not providing these funds. This bid was rejected by the States. Consequently, in the absence of  additional  resources,  progress  on  developing management plans for the Ramsar site has been slower than anyone would have liked.

The current situation in relation to recurrent and one-off costs  is  as  follows:  £20k  was  found  within  internal budgets  in  2005  to  enable  the  ICZM  Strategy  to  be developed; and then in order to implement the ICZM Strategy, through re-organisation of existing budgets, an additional £50k was found from 2009 onwards to fund the Marine and Coastal Scientist.

Based on the 2003 estimate, there is still a shortfall in one-off costs for remote surveillance of the SE Coast Ramsar site. These costs, estimated in 2003 to be in the region of £40,000, would now need to be re-evaluated, 7 years later. No funding estimates for baseline studies for the offshore reefs have yet been put forward.

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18

Recent studies have indicated that there has been a reduction in environmental quality over the last decade in the portion of the Ramsar site closest to La Collette. This alone (without the EfW Plant development) should have resulted in an Article 3.2 report being submitted via the UK Department of Environment, Food and Rural Affairs (DEFRA) to the Ramsar Secretariat, but this has not happened.

The Department would not agree, as has been previously stated, with the assertions of the Scrutiny Report that there has been a reduction in environmental quality over the last decade, or that there was therefore a necessity to submit  an  Article 3.2  report.  The  Minister  for  P&E considered  that  there  would  be  no  likely  significant change to the marine environment and this continues to be the Department's position.

Finding 18 focuses on the Findings of a report generated by P&E staff entitled:

"Investigation  of  possible  contamination  of marine biota from a land reclamation site at La Collette, Jersey".

Scrutiny,  and  their  adviser,  have  used  information collected,  synthesised,  reviewed,  analysed,  and concluded upon by P&E, to their own ends and have focussed on Findings which are less pertinent than those which  were  focussed  on  by  the  Department  as  the independent regulator.

The  P&E  report  details  how  in  the  late  1980s, environmental concerns focussed on the potential human health risk caused by the uptake into the marine biota of toxic  trace  metals  that  were  thought  to  be  mobilised from  the  incinerator  ash  stored  at  the  Waterfront reclamation  site  (east  of  St. Aubin's  Bay)  (Romeril, 1995).

This was investigated by determining levels of 6 trace metals (mgkg-1  dry weight) for 2 benthic bio-monitors;

the common limpet (Patella vulgata) and the serrated seaweed (Fucus serratus). Sampling was undertaken up to 4 times per year between 1993 and 2009 from 5 sites along the south and south-east coast of Jersey.

The  Report  seeks  to  establish  whether  any  statistical evidence exists that possible contamination from a land reclamation site at La Collette has caused a build-up of trace metal contamination in adjacent marine biota. It was found that a significant correlation existed for all 6 trace metals between the concentration at La Collette and the 2 distant sampling sites (Corbière and Gorey). This suggests that trends recorded at La Collette were evident elsewhere.

The mean levels of chromium (Cr), lead (Pb) and zinc (Zn) in limpets was significantly higher at La Collette

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than  Corbière,  whilst  zinc  in  Fucus  was  significantly higher at La Collette compared to Gorey.

However,  high  levels  of  these  3 trace  metals  also occurred  in  a  nearby  coastal  sites  (West  of  Albert) suggesting that the source does not originate from La Collette.

Higher levels of arsenic (As), cadmium (Cd) and zinc in limpets at La Collette were recorded after the date that Crabbé wood mulch was stored there. However, higher concentrations  of  the  3 trace  metals  also  occurred  at other sampling sites, suggesting that the source is not La Collette.

Between 1993 and 2009, mean arsenic levels increased in both limpets and Fucus at La Collette. This increase also  occurred  at  Corbière  and  Gorey  and  cannot specifically  be  linked  to  La Collette.  The  mean concentration of arsenic recorded for limpets in March 2009 was below the range cited for the Dorset coast. The Minister for P&E is in discussion with the Centre for Research into Environment and Health (University of Wales) and has requested that they undertake a literature review  concerning  the  rise  in  arsenic  levels  that  has occurred at all sampling sites.

Mean  recorded  cadmium,  copper  (Cu),  lead  and  zinc levels  at  La Collette  were  within  the  limits  cited  in literature for limpets and  Fucus in UK and European waters.

The  analysis  presented  in  the  paper  provides  no statistical evidence that any possible contamination of the  sea  from  the  reclamation  site  at  La  Collette  has resulted in a build up of the 6 trace metals in the soft tissue of the common limpet or the serrated seaweed within the adjacent coastal area.

19

The ES was predicated on avoiding impacts to the Ramsar site. However, the Findings of this review consider the Environmental Statement to be potentially unsound and missing essential

The  Minister  for  P&E's  response  to  this  Finding  is covered at Finding 5.

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information; consequently the mitigation measures are inappropriate and poorly considered and the implementation of the CEMP lacking in rigour. This has exposed the marine environment to an unnecessary pollution risk.

20

Additional studies are required to assess the current status of the Ramsar site and to implement the site management plan.

See response to Finding 16 above.

21

There is a need for a greater understanding of issues relating to heavy metal accumulation and bacterial pollution to enable effective protection of Jersey's sea fisheries and the marine environment.

The Department recognises that this is true in both cases. The heavy metals report (see Finding 18) drafted by the Department makes several Recommendations to increase the efficiency and effectiveness of the sampling (these are included in section 5 of the P&E report).

Additionally,  work  is  and  has  been  for  some  time ongoing into increasing our understanding of bacterial impacts  upon  surface  and  marine  waters.  As  stated already,  this  has  involved  significant  departmental resource over the last 12 months alone and has involved numerous States and third party stakeholders.

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Target date of action/ completion

1

Detailed guidance should be published on the EIA process in Jersey. The Panel understands that this is in preparation by the Planning and Environment Department. In the light of the Findings of this report, the Panel believes that the draft guidance should be reviewed in consultation with local stakeholders and subjected to external peer review to ensure that it fully reflects best practice.

Accept in part

A  Practice  note –  based  on  UK  Best Practice – is shortly to be issued to assist in the understanding of the EIA process. This will  provide  information  to  both  potential developers and any third party that may have an  interest  or  concern  in  the  proposal.  It should be noted that this has been available to view and indeed has been distributed in draft since early 2007.

Unlike  in  the  formulation  of  Policy,  a Practice Note is designed to help navigation through  the  P&E  Department's  processes. Reviewing the Note with local stakeholders would involve parties from all sides of the development  process  and  if  consensus cannot be reached then the Note might not even appear at all. The Department will be alive  to  feedback  on  the  Note  and  will engage with stakeholders at launch so as to ensure  the  message  of  the  Note  is communicated. Added to this the Note will be reviewed in the context of comments or changes in practice and/or other influences.

Q1/2 2010

2

A more systematic and transparent process should be implemented in respect of scoping for future Environmental Impact Assessments. This should record how and why decisions have been made and what organisations/ individuals have been consulted; where appropriate these records should be included in the published Environmental Statement.

Accept

This  will  be  detailed  in  the  guidance indicated at 1.

Q1/2 2010

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To

Accept/ Reject

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Target date of action/ completion

3

The scoping process should be more participative and involve key stakeholders as well as representatives of relevant States departments. An assessment of potential stakeholders should be undertaken as part of the scoping exercise and lead to formal invitations to participate in the scoping process; this matter needs to be considered adequately in the ongoing development of guidance.

Accept

This process was revisited in early 2009 and is subject to regular assessment and review.

Ongoing

4

Every new project should be independently assessed on its own merits. Analogies drawn from prior local experience may be used to provide comparative information, but must not be considered as a substitute for comprehensive, site- specific studies and evaluations.

Accept with qualifi- cations

If  this  refers  to  the  provision  of comprehensive  information-gathering  in connection  with  an  EIA,  the  Minister  for P&E wholeheartedly agrees.

However, if it implies that any EIS must be scrutinised by an independent party outside the States this is rejected. The EIA process is ultimately  there  to  inform  the  decision- maker and as such, whilst from time to time advice  may  be  sought  from  outside  the States,  it  should  be  the  Minister  for  P&E who takes responsibility for assessment of submitted  information.  The  Minister  not only  has  the  power  to  determine  an application,  but  also  has  to  defend  that decision  should  it  be  challenged  by  any Party.

Added to this fundamental issue of principle, there  are  no  resources  to  employ  external agents to fully engage in and run the EIA process.

N/A

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5

An urgent review should be carried out by Transport and Technical Services (T&TS) and P&E of all procedures for implementing environmental mitigation and protection measures relevant to the remainder of the construction phase of the EfW Plant, including method statements, monitoring and reporting.

Partially accept

This Recommendation can be commented on more fully after the outcome of the current investigation  into  an  alleged  pollution incident at La Collette is determined.

Ongoing

6

P&E should adopt a more robust approach to consenting discharges. All discharge consents should include quantifiable values wherever possible. Values should be set at a level designed to maximise environmental protection, not based on any design constraints or plans notified by the applicant.

Accept

This  Recommendation  is  accepted  on  the basis that the requirements are carried out already.  No  discharges  have  yet  been consented  from  the  site.  When  any respective  applications  for  discharge  are made, they are already and will continue to be robustly scrutinized and only consented in the  best  interests  of  environmental protection.

Complete

7

Future CEMPs should be more robust and closely monitored for compliance. P&E should adopt the best practice guidance published by the Institute of Environmental Management and

Accept

Where applicable in the Jersey context, the best  practice  guidance referred  to –  IEMA Best Practice Volume 12 published in 2008 – should  be  utilised.  The  CEMP  should  be used  by  parties  to  the  contract  and  to external  stakeholders  to  regulate  activities with likely environmental effects. P&E will advise as to relevant legislation that must be adhered to, and the CEMP must indicate that strategies  are  in  place  to  deal  with  these requirements. Ultimately, if these strategies

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Assessment as a minimum standard.

fail  and  legislation  is  contravened,  the operator risks enforcement action.

8

A robust baseline data set for the Ramsar site and other coastal waters should be developed as part of a strategy to protect the marine environment from further unnecessary risks. This should include a thorough investigation of sediments, appropriate biota and water quality, with particular attention to areas considered likely to be affected by pollution. The results of these studies should be made public and updated on a regular basis.

Accept

Whilst accepting that this is a very desirable goal,  which  the  Minister  for  P&E wholeheartedly  supports,  there  is  currently no funding to achieve this Recommendation in  full.  Despite  this,  it  should  be acknowledged  that  certain  baseline  data  is gathered by the Department including heavy metals and various water quality parameters. See  also  response  to  Finding 17.  The Minister  for  P&E  would  welcome  the support  of  the  Scrutiny  Panel  to  increase funding for this worthwhile aim.

Ongoing in part

No target date in part due to lack of resources

9

There should be a clear separation between the roles and responsibilities of government departments regarding future planning applications. P&E, as the regulator and responsible planning authority, should treat States departments as they would any other applicant, adopting a rigorous and challenging approach to maximise protection of the natural environment.

Accept

This is already the case. Whilst enjoying a close  and  effective  and  efficient  working relationship,  there  have  never  been  any occasions  when  the  role  of  all  the  parties involved  has  become  compromised. Certainly  P&E  has  never  lost  sight  of  its responsibilities in all of its roles that touch on the EfW development.

Existing

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10

Future EIAs need to be conducted in a culture which ensures that all applicants, including States departments, and all stakeholders provide full details of environmental information relevant to each application.

Accept

The maturation of the EIA process in Jersey and Europe has meant that the exercise has grown  in  terms  of  its  impact  on  the development process.

Ongoing

11

The provision of relevant environmental information should ensure that the Minister, in determining any application, takes all material considerations into account.

Accept

This is already the case.

Existing

12

A culture of inclusivity, participation and empowerment needs to be developed in order to rebuild trust between NGOs, the regulator and the wider public regarding the EIA process. This could be assisted by inviting consultation during the preparation of guidance on the EIA process as recommended above.

Accept with qualifi- cation

See response to Recommendation 1 above.

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13

The "Environmental Who's Who" should be maintained, updated and used as a matter of course in guiding public participation and consultation.

Accept

This  has  occurred  in  parallel  with  the drawing-up of the revised Practice Note (see response to Recommendation 1 above).

Q1/2 2010

14

Public consultation should follow best practice guidance, use a variety of fora and be as participative and inclusive as possible.

Accept

The  Minister  for  P&E  recognises  the importance  of  public  participation  in  the Planning process. This should not be taken as only a commitment to fulfil the statutorily required minimum, but as a proactive and constructive commitment to garner as much comment  as  possible.  Only  by  public engagement can the planning process claim legitimacy.  This  cannot  mean  that  public opinion  is  the  sole  consideration  in  the determination of planning applications, but the  opportunity  for  that  opinion  to  be considered  is  vital  in  making  the  correct decision. However, this has to be carried out within the potential restrictions of available resources.

However,  as  indicated  elsewhere  in  these comments, the Minister for P&E has to act as an arbiter of comment so as to ensure that the wishes of an applicant can be balanced against public comment in the context of the needs of the population as a whole.

Ongoing

15

Steps should be taken to encourage both NGOs and the public to maintain active involvement in the consultation process, especially where this may be prolonged as a result of change or delay to the application.

Accept

In revisiting the potential NGO consultation groups, relationships have been established or re-established. The Minister for P&E is committed to nurturing and supporting such relationships to allow engagement in the EIA process and will welcome any credible NGO to the list.

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16

T&TS should re- establish the Community Liaison Group to provide a forum for consultation on ongoing developments at

La Collette. However, there is a legitimate concern that this may prove counter-productive.

This targeted Recommendation can only be responded to by colleagues in T&TS.

17

P&E should be awarded sufficient funding to enable adequate implementation of the Island's obligations under the Ramsar Convention.

Accept

Whilst  steps  are  being  taken  to  draw  up Ramsar  Management  plans –  including Ramsar  Management  Authority –  this  has had  to  be  carved  out  of  existing  funding, despite  previous  requests for  the  States  to allocate  dedicated  resources.  Any  future funding would obviously enhance the ability to  meet  Ramsar  commitments  and  P&E would welcome the Scrutiny Panel's support to achieve this.

Ongoing in part

(see 18); further resources may need to be identified

18

P&E should complete and implement a management plan for the South-East Coast of Jersey Ramsar site as a matter of urgency and the remaining States Ramsar sites as soon as possible.

Accept

This process has commenced and included the involvement of stakeholder groups and is targeted to be completed by the end of 2010.

Ramsar Manage- ment Plan Scheduled to be completed Q4 2010

19

Development of the management plan should give careful consideration to monitoring and assessment protocols. Physico-chemical sampling and biotic monitoring should be appropriate, stratified and fit for purpose in order to evaluate

Accept

Along with parallel activities, this will form part of the management plan. However, as stated  in  response  to  Finding 17  and Recommendation 17, limitations of funding will  dictate  the  sampling  and  monitoring regimes. In the absence of further funding, the precautionary principle will need to be adopted.

See  response  to  Recommendation 18  in terms of involvement of stakeholders.

Ongoing in part

(see 18); further resources may need to be identified

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ecological character. The evaluation of ecological character needs to take into account wider eco- system services provided by the Ramsar site. The development of the management plan should also be inclusive and involve local stakeholders.

20

An Article 3.2 report should be produced and submitted to the Ramsar Secretariat regarding the likely change in ecological character within the South-East Coast of Jersey Ramsar site as a result of potential water-vectored contamination. This report should also highlight the activities proposed to assess and understand this situation and to ensure appropriate protection and, if necessary, remediation is established.

Reject

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.  This accords  with  other  EfWs  that  have  been approved –  Ince  Marshes  and  Runcorn – adjacent to sensitive wetland areas including Ramsar designated sites. As there is nothing to  report  then  the  purpose  of  a  report  is superfluous.

N/A

21

Further investigations should be carried out to evaluate ongoing and potential impacts on the marine environment, to include consideration of further developments on the waterfront, and discharges from the

Accept

The Ramsar Management Plan will set out the monitoring regime for the Ramsar site, and the Ramsar Management Authority will assess  these  data  in  relation  to  the management  of  the  site.  In  addition,  it  is important  to  note  that  there  already  exists within  P&E  a  timetable  of  monitoring, including scientifically robust monitoring of the  effluent  from  the  Bellozanne  Sewage Treatment  Works  and  ongoing  works determining effects on receiving waters from

Ongoing in part; further resources may need to be identified

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Bellozanne outfall and other sources. These studies should be used as a basis for proposals to prevent further degradation of the marine environment.

coastal point  and  diffuse sources.  Lack  of resources  continue  to  be  an  issue  in preventing  exhaustive  investigations,  but P&E staff are already involved in significant bodies of work in respect of this issue.

22

Testing for cumulative impacts of heavy metals and other potential pollutants on marine biota should be extended to a wider range of sites and biota, and carried out on a more frequent basis to enable the compilation of relevant and reliable baseline data. Key local stakeholders should be involved in this process.

Accept

See  response  to  Recommendation 21 above – again, resource is required to give this more gravity and priority.

The Minster for P&E would agree that key statutory bodies should be involved in this process and that information should be made available to other interested parties to enable local stakeholders to be more informed in the event that they chose to become involved in the Ramsar management authority.

No date until resources are identified

23

A review of environmental protection mechanisms relevant to the marine environment should be carried out between P&E and other relevant departments in consultation with key stakeholders to identify areas of concern and establish a way forward.

Accept

The  Comptroller  and  Auditor  General (C&AG) has already been requested by the Minister for P&E to carry out a review of this issue, and the Department understands that  Scrutiny  too  have  approached  the C&AG with a view to undertaking similar works. The Department is confident in the environmental  protection  mechanisms carried  out,  but  will  work  with  both  the C&AG and Scrutiny to make this confidence more widely accepted.

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24

Ministers and Chief Officers should meet with the Scrutiny Panel to discuss difficulties over access to potentially sensitive information and to establish how such problems can be avoided and requests expedited in future.

Accept

There is always a balance to be struck in information-sharing. The Minister for P&E has a duty to ensure that information shared does  not  breach  either  legal  protocols  for investigations and potential prosecutions, or the States of Jersey's duty as a considerate employer.

TBA