22. The Council’s Submissions
As with any big body, a local authority can reveal strong resistance to change but, as in an oil tanker, when a change in direction does occur it can be irrepressible. It had been such a turning point when Torfaen Borough Council’s publication of the PCB test results in early 1989 marked the start of a particularly proactive period of local government participation in the highly scientific side of the Rechem controversy. A substantial memorandum to the Welsh Affairs Committee in early summer was followed by the Council’s 43 page presentation to the Secretary of State for Wales at the end of July. When the injunction against that report was lifted in October, the Council returned to testing and produced a second memorandum to the Welsh Affairs Committee and all three submissions were presented as evidence to the Welsh Affairs Committee for its December inquiry in Parliament.
The first memorandum from the Council explained the legislative difficulties being experienced by the Council and it tabulated the Council’s earlier PCB test results. The second memorandum contained new monitoring data but it was essentially an exercise in retaliation against ReChem’s criticisms of the Council’s presentation to the Welsh Secretary. The intervening presentation document, first handed to the Welsh Secretary in July, began by stating that ReChem’s original intention for the Pontypool plant was to take waste from South Wales and the South West of England, yet the plant had become:
. . . .a major importer of toxic wastes from world-wide sources, such as Australia, Brazil, Belgium, Canada, Italy, Germany, Holland, Norway, Portugal, Spain, Switzerland, Far Eastern countries, Uruguay and Iceland. Many of these countries export toxic wastes, particularly the chemical group PCBs, because they cannot or do not want the inherent risk of processing in their own territories.PCBs in particular represent a long term health risk, not only if they are incorrectly incinerated but also if they are incorrectly handled and stored. Small amounts released into local environments, because of their toxic and cumulative effects can herald long term environmental damage to all life forms . . . .
As is often the case, there had been a tendency for the local public to view its Council cynically and to find comfort in blaming councillors and officers for all manner of ills, including ReChem.After this report, Torfaen Council’s popularity rating shot up and the contribution it was making meant that the strategy of our campaign had to be adjusted, so that we encouraged people to get behind their Council rather than be critical. There remained only a few who still complained and who thrived on continuing to blame local government planning of fifteen years previous or who wouldn’t forget the original deal for the land the incinerator stood on, but on the whole the community entered a productive phase of collaboration with the Council.After placing the Pontypool plant in perspective, Torfaen’s revolutionary report continued to reveal a deep appreciation of the controversy:
Whilst their claim of 99.9999% efficiency is admittedly high, with the increasing throughput of PCBs, the 0.0001% of residual PCBs will become a significant figure in terms of total tonnages and local environmental deposition. Furthermore, these figures relate only to the actual incineration process and do not take account of escapes from other ancillary processes from which PCBs may easily contaminate the local environment. This last comment applies especially to the ancillary process of taking in large transformers, draining off PCBs and cutting the units up for incineration. . . . . Environmental Monitoring carried out near to the plant is now indicating a rising level of PCB contamination, possibly from ancillary processes as well as the incinerator itself. . . . . Despite the claims by the plant management that their systems are as near perfect as can be achieved, these claims are often disproved by the occurrence of various incidents which give rise to serious concerns. No matter how theoretically perfect a system may be, there is always the possibility of both technical and human error, which had been demonstrated on a number of occasions.
These claims were supported by the Council’s own detailed accounts of incidents, one of which I remembered with a smile. It was:
Instances of chemical spillages in the storage areas which, because the plant management did not see fit to alert the local services, resulted in the widespread mobilization of all emergency services, because of public disturbance through heavy odour-spread for distances up to six miles from the plant.
Like thousands of other people I had direct experience of this incident, which involved methyl mercaptan, or ethanethiol, a smelly substance used to provide the distinctive smell in bottled gas. Reputed to be detectable at a concentration of less than one part per billion in air, the Guinness Book of Records in the year 2000 had as the smelliest substance known. Methyl mercaptan vapour is heavier than air and on a November night in 1987, panic prevailed as a smell of gas spread from New Inn to Newport. The emergency services were out searching for the source until the company owned up.
Alongside the characteristic of inertia, large, hierarchical institutions can also contain a good helping of vanity, but instead it was pleasing to find humility in the Council’s own admission of impotence, when saying in the report:
It is of interest to note here, that following such incidents, it has been the Council’s practice to ask the company for reports on the causes of these happenings. The usual reply is that the Council is not a statutory body to whom such details have to be reported and that the Company confines itself to reporting only to those authorities to whom it is so legally bound.
Although lacking statutory powers in relation to incidents at the plant, it was the Council whose job it had been to issue the very licence to ReChem that contained the clause about not creating a nuisance. Yet when the plant did create a nuisance, the company could tell the local authority to mind its own business about the cause of the nuisance and could even hinder Torfaen’s attempts to investigate. ReChem frequently pointed to the Pollution Inspectorate for countenance, so Torfaen made this further attack on the regulatory situation:
Her majesty’s Inspectorate of Pollution, whilst laying down limited criteria for chimney stack emissions and operating through their “Best Practicable Means “ document, also control the plant’s ancillary processes – for which no standards have been laid down. In a recent letter they stated that they do not normally carry out environmental monitoring around such registered processes.
This comment alone reflected the shift in the local authority’s position. Having once appeared satisfied with ticking boxes, the Council was now showing an interest in the big picture. The persistent smells at ground level, regardless of the incinerator emissions, were testimony to the release of chemicals in ancillary processes. It had appeared to me that the absence of standards for the emissions of chemicals in those processes created an administrative absence of emissions. Without the existence of standards and without the paperwork to process, the plant couldn’t contravene any regulations for emissions from ancillary processes. Although the Council’s the report didn’t say so, I wondered whether its contention reflected only a suspicion of emissions from ancillary process or whether Council officers had truly stumbled upon a real source of PCB releases from the plant when it continued, confidently:
However, the Torfaen Borough Council have, within their limited resources, carried out environmental monitoring and these results appear to indicate what can only be described as a most disturbing increase in the contamination levels of PCBs near to the plant. The levels found, especially when compared to ReChem’s own published data must be a cause for serious concern.
The secretary of state for Wales has on more than one occasion stated that if he were to be presented with further evidence he would institute a Public Inquiry. The further evidence now presented is:
1. Recent regular herbage sampling from residential land near to the plant is showing greatly increased levels of PCB contamination – this evidence is documented in the appendix to this submission. The samples obtained were from fresh, regularly cut grass, so there was no possibility of any “cumulative” effect on the surfaces.
2. Samples were taken of duck eggs. The ducks concerned are kept on residential premises near to the plant and their eggs show high levels of PCB contamination. Whilst there is no “standard” in this country for PCB contamination of such foods, comparison with standards from other countries show that the eggs, some of which contained 600 parts per billion PCBs, were substantially higher than accepted levels in the United States of America, Canada and Japan. These duck eggs have been regularly consumed by both the owners and other persons in the vicinity to whom they were given or sold. As can be seen from the Analyst’s observations (appendix2) the ingestion of merely one of these eggs per day would contribute 37 micrograms of PCB to the dietary intake – a very high figure. In order to achieve an objective comparison, samples of duck eggs were obtained from other areas and were subjected to the same analytical process. The results from these “control” samples show low levels of PCBs and have only served to highlight the very high contamination levels in eggs produce near to the ReChem plant.
3. Samples of soil obtained from residential land near the plant are showing very considerable elevation of PCB contamination. These latest sampling results which are included in appendix 2, have not yet been made public, but will shortly be reported to the Council’s Environmental Health Committee which is an open publicly attended meeting. Their publication is bound, once again to cause widespread concern to say nothing of the anguish and possible fear it will generate in those persons who have regularly consumed such locally produced foodstuffs such as duck eggs. The Council has also consulted with an internationally recognized toxicologist who has expressed his concern over the results found.
IT IS CONTENDED THAT ON THE ABOVE EVIDENCE ALONE, THE SECRETARY OF STATE FOR WALES HAS NOW BEEN PRESENTED WITH MORE THAN SUFFICIENT FURTHER EVIDENCE TO WARRANT HIS IMMEDIATE INSTITUTION OF A PUBLIC INQUIRY
The next section of the Council’s report was headed “Clarification of the Role and relationship of Torfaen Borough Council with other statutory enforcing agencies”.I had always sympathised with the Council’s predicament, with a job to do but with obstacles rather than the tools to do it, the Council the Council may have found it easier to convey an impression that everything was alright. This section of the report described the predicament together with the institutionalized protection of ReChem, a situation that I felt helped give the company the confidence to mount the stream of legal actions against its critics. It said:
Within the terms of the control of Pollution Act, Torfaen Borough Council is a Waste Disposal Authority and as such is responsible for the issuing of Waste Disposal Licences to such establishments as the ReChem International Limited’s incinerator.
The waste disposal licence is supposedly is supposedly able to regulate the operation of such plants so that they do not cause a danger to health, do not contaminate water and do not cause serious detriment to the amenities of the neighbourhood in which they are located. In performing its role as a waste disposal authority it is necessary to liaise with other statutory bodies such as Her Majesties Inspectorate of Pollution and the Welsh Water Authority. In practice in can be demonstrated that the Council’s activities to safeguard its inhabitants is, under certain circumstances, impeded rather than aided by these other statutory organizations.
With regard to the Welsh Water Authority and the Council’s requirement to ensure the safety of water supplies, it is quite obvious that it is necessary to know what consent levels have been granted to ReChem for its discharges into public sewers. This information is not available to the Council because the “consent agreement” is a confidential matter between the Company and the Water Authority.
Recent publications relating to alleged breaches of agreed discharge consents infer that there are measurable quantities of PCBs and heavy metals being released into the public sewers and then into other publicly used waters such as local rivers and the Bristol Channel. The way is thus open for the re-circulation of these contaminants and their entry into the food chain via river fish and sea foods. The alleged commercial secrecy of these sewer discharges makes nonsense of supposedly environmental conscious organizations such as the Water Authority and places a serious legal impediment in the path of the Council’s attempts to carry out its full role as a Waste disposal Authority. Even if such discharge consents eventually become a matter of public register, sampling results should be made available also, and consent levels should become part of the waste disposal licensing control system.
With regard to Her Majesty’s Inspectorate of pollution (HMIP), the ReChem incinerator is a registered process under the Alkali Acts and as such H.M.I.P. have responsibility not only for the standards of incinerator operation but also for the ancillary processes such as material storage and handling, which includes the “transformer cutting and draining” operations. Because of this the waste disposal licence is unable to include specifications relating to the technical running and control of these operations and can in no way cross, impose upon, or even improve what may be contained in HMIPs “Best Practicable Means” document. This situation is made even worse by the fact that there is apparent confusion amongst the ranks of H.M.I.P. as to who does what . . . there is obviously no control measure available for laying down standards for PCB, dioxin or furans emissions whether from the chimney stack or other parts of the process . . . . It was with the full approval of H.M.I.P. that ReChem International Limited set up its transformer breaking and draining process. This takes place in an area with uncontrolled ventilation and together with the liquid PCB pumping and storage system, could possibly be the cause of increasing PCB contamination of the immediate environment . . .
This insight was tremendous. After my first sightings of smoke in 1985 were followed by my initial enquiries, I’d deduced that given the chemistry, the technology, systems of work and business incentives at the Pontypool plant, the emission of toxic chemicals was a theoretical certainty. Observations, such as the early monitoring exercises of STEAM and ongoing incidents at the plant, supported my theory. In 1987, the inside information about site contamination leaked to Llew Smith converted theoretical certainty into reality. Now for the first time, a possible systemic source of contamination, other than the incinerator itself, had been seriously suggested and was begging for investigation. The insight shown by the Council was to play a major part in the direction of a pioneering research exercise of international status.
I supported Torfaen’s fresh call for a public inquiry into the whole affair but I had no faith in one and didn’t really want to see it. I always favoured a thorough independent investigation into specific aspects, but like many people I hoped that Torfaen’s powerful report would have been enough to provoke some immediate action from the Inspectorate, simply to curb emissions. Sadly that wasn’t to be and Rechem continued to play the innocent victim, aghast that anyone would dare connect the plant with contamination.
The Council’s report went into a number of other areas of concern aside from contamination. One of these was the curious position of ReChem under the C.I.M.A.H. Regulations (Control of Industrial Major Accident Hazards). These regulations were introduced in 1984 following the EEC Seveso Directive of 1982, which intended to prevent a recurrence of Italy’s ICMESA accident that released dioxin during the failure of the 245-T manufacturing process. The directive was designed to identify and reduce risks to the population in the event of a major accident. It required the co-ordination of industry, the local authority and the emergency services, in preparation for and in the event of such an accident. A complication was that the designated local authority in this procedure was required to be Gwent County Council, rather than Torfaen Borough. The philosophy behind the Seveso Directive was a perfect fit for the Pontypool plant, yet ReChem escaped through quirky loopholes. One loophole I spent a lot of time pursuing was the one about the quantity of chemicals stored at the site. The British version of the regulations automatically exempted sites that stored below a stipulated tonnage of one dangerous chemical or another. This would embrace plants with a large amount of one specific substance. However Rechem stored smaller amounts of many of the listed substances and under the regulations the amounts didn’t need to be aggregated even if the total hazard was tremendous. Another reason for exemption was more incredulous. It was linked to terminology in the licence. ReChem was licenced not as a chemical process, but as a “waste disposal site”. On paper, the “waste disposal site” description disguised the real character of the incineration plant and such an innocuous classification helped to keep ReChem free from the controls. There was yet one more reason ReChem escaped the accident regulations: an aspect of classification related to the difference between the meanings of “harmful” and “toxic”. The Health and Safety Executive deemed that although the plant handled both categories, the substances in the lower category of “harmful” would override the “toxic” substances category in determining the applicability of the regulations. In reality, leaving Britain’s nuclear facilities aside, it would have been hard to find a plant with greater potential for population evacuation and long-term environmental damage, yet ReChem escaped the hazard regulations and in doing so avoided the need to provide public information about materials stored on site.
The absurd role of the licence as ReChem’s lifeline was further illustrated by the report’s outlining of the attempt to prosecute ReChem for creating a nuisance to local residents. It reiterated the Appeal Court ruling that Torfaen Borough Council, as a Waste Disposal Authority, “. . . cannot include in its licencing condition clauses which prevent such operations causing a nuisance.”
Torfaen Borough Council had attempted to prosecute ReChem for nuisance, had commissioned environmental tests for PCBs, had pursued its powerlessness in relation to liquid discharges, had tried to get the CIMAH regulations implemented, was compelled to spend money facilitating waste imports it didn’t want, was about to employ more specialist staff and was running up a hefty bill for all of this. With a single PCB test costing around £100 and a dioxin analysis running to more than ten times that, environmental monitoring was expensive. Therefore the next section of the report focused on the unusual financial burden that Rechem’s presence had placed on the Council, particularly in administering the waste shipment regulations and in footing the cost of chemical analysis.The report described the position the Council was in as “unique” and added: “All these costs have to be borne by local ratepayers who in turn have to suffer the discomfort and possible long-term consequences of the ReChem plant being located within their district.”Torfaen pointed out that the government had seen fit to pump money into ReChem but had not helped the Council to do its job. That government money had been for the installation of the stack emission cleaning equipment, which was now conspicuous by its mist-making cooling towers and whose appropriateness the report questioned when summarising the problematic location of the plant.
When Torfaen’s nuisance case against ReChem failed in court, popular opinion condemned the law, yet in the judge’s declaration that the Council did not have the power to impose such a condition, there was a chink of light. The significance of that verdict was recognized by the Council in beginning it’s conclusions to the long report, with a recap of the court case. Had the Council won in court, morale would have been raised and ReChem’s aura of compliance would have been dented, but I wondered whether little else would have changed. The judge’s comments gave the outcome of the case a more futuristic complexion and the report concluded:
In September 1987 at Cardiff Crown Court Mr. Justice Garland, in directing a Jury to find ReChem International Limited not guilty because he considered their ‘nuisance clause’ to be “Ultra Vires” stated that the matter should “be the subject of further research or public inquiry.”
This considered opinion from the learned judge was given after hearing the evidence of many local residents as well as professional and technical representatives during a trial lasting more than a week.
During 1986, Her Majesty’s Inspectorate of Pollution in conjunction with East Anglia University undertook a sampling exercise of soil and herbage in the Panteg area. The samples were analysed for PCB content and the results for herbage varied between 9.4 and 13 parts per billion. ReChem International published the results of their own foliage sampling which was carried out between July 1984 and January 1985. Their findings varied between 5 and 18 parts per billion for PCBs.
The results of Torfaen Borough Council’s recent herbage sampling programme, some of which have been double checked by two independent analysts (one being The Government Chemist), show the results to be very much higher than previous findings, and have ranged from 500 to 1200 parts per billion of PCBs. These results, coupled with the results for soil analysis for PCBs and the very high amounts now found in locally produced duck eggs must conclusively indicate a rising level of PCBs in the environment close to the ReChem plant, which can only be regarded with very serious concern.
Whilst further and wider ranging sampling will continue, more than enough evidence now exists, (especially since there is no other local source of PCBs) that this contamination must be coming from some part of the ReChem processes.
If the Secretary of State is serious in his stated intention to hold a public inquiry if presented with further evidence, then we respectfully submit that this further evidence is now to hand. We further contend that in the light of this further information, which will shortly become public knowledge, that if the Government still wishes to encourage the international trade in toxic waste disposal and at the same time demonstrate its alleged commitment to environmental matters and heed the public’s widespread concern, then the only demonstrable course open to it is to immediately institute a wide-ranging public inquiry into the activities carried on by ReChem International Limited. Such an inquiry could examine not only the specific concerns raised in this document but could act as an inquiry into toxic waste disposal as a whole, encompassing the criteria necessary for proper siting and newly available disposal methods, which could have long term beneficial strategic effects as well as satisfying immediate concerns.
The report contained appendices with technical details of the test results and the details of analytical methods that were included in exchanges such as those between the City Analyst’s Laboratory in Cardiff, and D.H. Thomas, Torfaen Borough Council’s Director of Environmental Health Services:
Report of analysis of herbage for PCB content. Received from Mr. Terry Jones on 25th May 1989. Analysis for polychlorinated biphenyls was carried out by packed column chromatography of suitably cleaned up acetone/hexane extracts from the air dried sample, using electron capture detection. A mixed standard (containing Araclor 1242, 1254 and 1260) was then prepared, to match the profile of the PCB components found, and the PCB content of the herbage was calculated.
Sample PC 16/89 Pontyfelin HousePCB content (on dry matter) 1100 parts per billion.
Report of analysis of 2 samples of duck eggs for PCB content. Received from Mr. Terry Jones:
The procedure of the AOAC was used to extract polychlorinated biphenyls from the eggs, and the extracts were analysed using packed column gas chromatography. A mixed standard (containing Aroclor 1242, 1254 and 1260) was then prepared to match the profile of PCB components found and the PCB content of the eggs calculated, with the following results:
Sample PC9/89 Date received 25/4/89 PCB content (whole shelled eggs) 600 parts per billion
Sample PC15/89 Date received 25/5/89 PCB content (whole shelled eggs) <10 parts per billion (control sample)
Observations; The report of the Steering Group on Food Surveillance on PCB residues in food and human tissue (1983) concluded that the exposure of PCBs through consumption of food was probably less than probably less than 10 micrograms per day. Ingestion of one egg per day from sample PC9/89 (average weight of an egg without shell 61 grams) would add 37 micrograms of PCBs per day to the dietary intake.
Report of examination of aluminium foil for presence of PCB – sample PC5/89
Received from Mr. Terry Jones on 21st Feb 1989.
The sample consisted of a number of pieces of crumpled aluminium foil, weighing a total of approximately 2.5 grams. Pieces of the foil carried the remains of a covering film, which was identified as cellulose by infra-red spectroscopy. This cellulose film showed evidence of incineration and charring, being completely burned away in places. A portion of the sample weighing 1.03 grams was rinsed with hexane, and the extract examined, using packed column gas chromatography, for the presence of polychlorinated biphenyls. After suitable dilution, the extract was found to contain more than twelve components that are present in commercial mixtures of polychlorinated biphenyls.
The profile of the first 10 of these components corresponded approximately with the laboratory standard of Aroclor 1016, and on this basis it was possible to calculate that the sample of foil examined carried approximately 60 milligrams of polychlorinated biphenyls, which is equivalent to 6% by weight of the sample analysed. A second portion of the aluminium foil (weighing 0.8 grams) was examined using the same procedure and found to contain 0.5% by weight of polychlorinated biphenyls.
Signed B J Sanders, City Analyst. B.Sc., M.Chem.A, C.Chem., F.R.S.C.
Like many twists and turns in the ReChem saga, what happened following the summer’s original submission of the report could be viewed in two ways: as another frustrating, embarrassing disappointment for the Local Authority or as a further demonstration of the need for independent action.In a point blank attack on Torfaen’s presentation to the Welsh Office, ReChem dismissed the Council’s findings as being unscientific, scaremongering and of no significance.After the ensuing injunction was lifted, the Council retaliated against ReChem’s criticisms in the form of a second memorandum and this was ready for the Parliamentary inquiry in December. It was ReChem’s view that Torfaen was wrong in its regulatory role and wrong to publish test results. The introduction to the Council’s Second Memorandum explained:
Since the publication of the presentation document, ReChem International Limited has sought to discredit its contents and has accused Torfaen Borough Council of such practices as seeking to stir public unrest without foundation, ineptly applying the existing law and ignoring its statutory responsibilities and also of adopting an unscientific and amateur approach to an industry about which, it claims, the Council has insufficient knowledge. The purpose of this second memorandum to the Committee for Welsh Affairs is to highlight what the Council believes to be deficiencies in the existing law, to emphasise the areas of confusion which still exist, to show thet the Council is fully aware of its statutory obligations and that there would appear to be areas of law which are not understood or appreciated by the Company. In addition, since the first memorandum to the Committee, some other points have occurred to the Council which may be of relevance to the Committee’s deliberations on the workings of the Transfrontier Shipment of Hazardous Wastes Regulations.
One of Rechem’s criticisms was that the licence provided by Torfaen said nothing about atmospheric emissions, as if to say it the Council was creating unnecessary work for itself. The Council pointed out that the provisions of the Government’s Waste management Paper No. 4, together with the Alkali Acts requirement for the plant to be a registered process under the control of HMIP, prevented the Council itself setting emission limits. Furthermore, although Torfaen Council had initiated a revision of the licence in February 1989, progress had stalled because HMIP had not agreed with such a revision. Furthermore it was for the Inspectorate to first authorise the substances which could be processed at the plant, before Torfaen could even begin to consider any mention of specific substances in a licence. In addition, any consequent intervention on the storage of specific materials was considered by HMIP to be their prerogative, not Torfaen’s and on top of that Torfaen awaited the outcome of the Department of the Environment’s own deliberations on the Pontypool plant’s licence conditions.
I couldn’t help thinking that even though the Rechem’s smears against the Council’s original report could create some short-term confusion there was limited staying power in the company’s reaction. The thought was reinforced by another illustration of an allegation which Torfaen challenged in its second memorandum, in a section headed “PUBLIC HEALTH ACT 1936”:
The Company have also alleged that the Council have failed to use the Statutory Nuisance provisions of the Public Health Act, 1936. No doubt such allegations are made by the Company because they are ignorant of the fact that in discussions with HMIP, the Council; have been informed that any application to the secretary of State under these provisions would be countered by a recommendation from HMIP that such a request should be refused