A report by SOS Jersey (redacted) on events occuring at Jersey’s Incinerator construction site at La Collette during the Spring and Summer of 2009.
It must be remembered before reading further that SOSJ have always maintained that to excavate the La Collette reclamation site, east of St. Helier, in order to build Jersey’s new incinerator, there were likely to be problems relating to contamination of the sea due to its proximity, closeness of the ash pits, and the friable and partly toxic nature of the reclaimed landfill in that area. Our concerns were brushed aside by the relevant Government Departments, and it was only after the extensive evidence and reports that we supplied to the Environmental Scrutiny Panel in 2009 – 2010 that pollution had occurred to the adjacent Ramsar site that our concerns were taken seriously. Indeed the Environment Department was were duty bound to report any pollution event (or even the threat of one) to the Ramsar Bureau under Article 3.2 of the Convention but chose not do so.
SOSJ kept the site under observation when work started. One morning, on 29th March, 2009, an SOSJ technical member visited the site to observe and photograph the pit at high tide. At the site, it was utterly quiet and about 4 ft of seawater was observed to be in the pit, yet we were later informed that on that morning “pumps were removing excess water which was in any case only a few inches deep”. There was no pumping in operation during our observational time (9 a.m. – 9.30 a.m.) and our timed and dated photos showed a varying depth of water (up to 4ft) plus evident voids and fissures. It was after this event that we decided to present our evidence as we gathered it, to the Environment Scrutiny Panel.
Put simply, between Saturday 25th April 2009 and Wednesday 6th May 2009, following a chain of extraordinary events occurring at the incinerator construction site, the Contractors were officially warned by the Regulator on 8th May, 2009 that they had illegally pumped to sea (into a Ramsar Wetland Area of International Importance) thousands of gallons of leachate (dirty, contaminated pit water).
It is primarily for this reason that we present our summarised report, which is sourced from material in the form of correspondence, site minutes and internal reports, plus a detailed statement and over 90 photos taken by the Consultants’ (Fichtner) Project Manager’s Site Representative, appointed to take care of the environmental impact of the construction.
The Wall of Silence
SOSJ had already gathered their own evidence regarding pollution events, unaware that their concerns were mirrored by Fichtner’s Site Supervisor until much later in the year. Indeed an email from the Consultant’s Managing Director to the Site Representative, dated 13th May 2009 reads: “We can discuss how to proceed on Friday including the need for legal representation. I am sure you will do so, but currently neither you or ourselves should do anything regarding this matter without informing me first. We will not issue any communications to external bodies regarding this matter without telling you, and I request that you do similarly.”
So, while SOSJ were being being assured by Environmental Protection Officers that all was well, a flurry of activity and a collective wall of silence surrounded the EfW site from the Client, (transport & Technical Services) Environmental Protection Officers, The Project Consultants and the Contractors.
The well-documented events were initially either strenuously denied, played down, or simply covered up, depending on who one believed at the time. Indeed, even after the Attorney General had decided not to press criminal charges, the Environment Scrutiny Panel, who after two years of trying to get to the truth following several Hearings were understandably frustrated. We know that the Panel were kept in the dark on many key issues, and would not have had access to the documents we have seen. SOSJ submit that it became easier as the elections of October 2011 approached, for the Departments to just maintain silence as they knew that soon the (then) current Panel would have to cease their enquiries and indeed this has been the case.
SOSJ were requested by the Regulator, at the time of the first pollution events, to be patient. Back in the Summer of 2009 the Regulator stated that SOS would be ‘pleasantly surprised’ if we waited for the investigation to take its course. The SOS committee therefore, in good faith, decided not to receive evidence offered by the key witness. The latter alleges he had been denied the chance to give his evidence to the Regulator, and later to the Attorney General, despite his requests to do so.
After many months had elapsed, SOSJ agreed to intervene and tried to arrange a meeting between Environmental Protection and the key witness, but without success. Later the Attorney General’s Office also declined, despite a plea both from the witness and a request from SOSJ. As of this date neither SOSJ nor the Environmental Scrutiny Panel have been given a satisfactory answer as to why the key witness was not interviewed.
SOSJ have, therefore, conducted an independent investigation, and have at last pieced together an accurate sequence of events. It emerges that in addition to the pollution issues, the early stages of the project were beset by health and safety problems, some of which are difficult to comprehend given the immense amount of money that was thrown at the project. The Planning and Environment Department also admitted in Scrutiny Hearings that there were flaws in the Environmental Impact Assessment process. Two officers apologised for mistakes made in the process in the Hearings. This has already been documented in transcripts available from the Scrutiny website.
The Contractual Obligations of Each Party
Under Clause 26 of the Contract that the ‘Client’ had with the Contractor, Health and Safety roles are defined. The Project Consultants’ role (clause 11 of the Contract) was to manage the contract on behalf of the Purchaser, acting impartially between the Purchaser and Contractor. We read in Consultants’ Project Director’s memo dated 14th May 2009: (page 6)
“It is specifically stated that the Contractor is responsible for safety and environmental performance. Section 5.2 of Schedule 5 of the Contract, states that ‘The Contractor shall take special precautions to avoid damage and disturbance to the wild life habitat particularly in respect of the coastal and marine habitat, and the avoidance of contaminated discharges or run-off from the Site.”
A catalogue of site management safety concerns can be read into the site minutes. One entry, dated 10th March, 2009 from the Contractor’s Site Progress Meeting number 6 item 3.6.1 reads: ” ….(Consultants’ Project Manager) raised serious concerns over the lack of safety management by ….(the Contractor) and that the site was currently in an unsafe condition, with 25t dumper trucks operating without adequate supervision, next to an open trench where people are working. TTS have also voiced their concerns as…. (The Director of Waste Strategy Projects) had nearly been run-over by a dumper truck the day before.”
Other comments relate to an unearthed generator, lack of safety barriers and other equipment which was used on the site (a site flooded at times of high water).
The Regulator’s Position
The problems recounted by the key witness and evident from the site minutes and other documentation, were no doubt in part, caused by the chaos of a multi-lingual work force and should have been forseen. But the main and over-riding problem was the way in which contractors dealt with (or rather, did not deal with) the containment of the contaminated pit water and their contractual responsibilities.
The Regulator initially did the right thing in our view, as soon as he became aware of the problem. He wrote to both to the Consultants’ Site Representative and to the Contractor’s Site Manager. To the Site Manager the Regulator wrote on 8th May, 2009:
“Following receipt of information concerning activities that have occurred at the EFW construction site between the period 23 April to 6 May 2009, Environmental Protection have decided to instigate a formal investigation into potential offences committed under Article 17 of the Water Pollution (Jersey) Law 2000 (The Law).
The Law States that: ‘Any person who causes or knowingly permits the pollution of any Controlled Waters shall be guilty of an offence and liable to imprisonment for a term not exceeding 2 years or to a fine or both.
We shall request information to assist us with our investigations and will be inviting you for an interview under caution, in due course.
It was made clear from the outset of the construction project that no discharges of impacted water from the excavation should be made directly or indirectly to marine waters prior to consideration of your discharge permit application. In addition, within your application you stated that all water being pumped from the excavation would be treated within the proposed treatment system prior to returning to the excavation. The option of removing water by tanker or disposal to foul sewer was available, subject to approval by…. (the Clients) should the need arise to dewater the excavation in the meantime…………At no stage did Environmental Protection give permission for you to discharge contaminated water from the excavation hole directly into these re-injection shafts or use the area in the vicinity of the JEC culvert as an unlined lagoon/soakaway. In our opinion, both options represent an unacceptable risk of pollution to the marine environment and had you discussed the problems with us, both would have been considered unacceptable.”
Even the Project Consultants’ rather protective internal report, whilst strangely denying that the discoloration of the sea surrounding the culvert was connected to the discharges, concedes:
“All the above does not excuse the performance of…. (the Contractors) who have on occasion discharged water from the pit contrary to the method statements and with no discharge consent.”
(Extract from the Project Consultants’ memo P5 14/05/2009 – S1059-0020-0229JW)
The Attempts to Contain the Leachate
Following warnings from the Regulator, The Contractors set about trying to build a containment tank method and this included an oil separator tank, the site being heavily contaminated in parts with impacted diesel fuel. The exact methods are described in the Project Consultants’ Report of 13th May 2009, but SOSJ note a certain ‘protectiveness’ in the content.
For instance, despite the Site Representative’s photographs and observations of discolourations of the sea (a muddy brown) and the self-evident pumping out of thick scummy leachate via the JEC culvert (photographed in detail by the key witness), the report brushes these off as being of no relevance. In fact, the report states on page 4: “The alleged pollution event under investigation by the regulator relates to the sea discolouration seen on April 27th. It should be stressed that no similar discolouration has been seen on any other day, despite pumping taking place on several other occasions.”
The sea on that day was calm and the discolouration could only have come from pumping out leachate via the culvert as the photos show – the brown stain was directly in the vicinity of the culvert. Indeed, the Consultants’ Site Representative wrote: “You will note that the report, incorrectly in my opinion, states that the pollution in the sea would be unlikely caused by the pumping into the well discharge point; Before the sheet pile curtain was completed the sea entered the excavation on a twice daily basis and left, taking any pollutants with it along the stone fill around the culvert, which was acting like a french drain and facilitated the quick and easy emptying of tidal water.”
The attached report shows how the contractors tried desperately to jury rig containers to catch some of the leachate and filter it, but the photos and emails confirm that the oil separator did not work. Another tank was leaking while another was dry showing it had not been used at all. The whole process was ‘Heath Robinson’, unplanned and unworkable. For a project costing the tax payer £105 million plus, SIOSJ question the preparation and methodology of the project.
The key witness states:“On a weekly basis I asked….(the Contractors) why the settlement tanks were not being used to demonstrate to the EPO (Environmental Protection Office) that water could be treated as they suggested in their discharge consent application. To be honest the entire system was undersized and useless for the purposes it was intended. This was brought to their attention by me and also recorded in minutes which I have available. Because they couldn’t get rid of the water held within the excavation they proceeded to use less scrupulous methods to empty the excavation.”
TTS’s Internal Report
The Clients (TTS) conducted their own report which was sent to the Office of Environmental Protection on 6th May, 2009 by the Director of Waste Strategy. The witness alleges that he had to put some pressure on the Clients to produce a report.
The report summarises, dates and captions the photos supplied by the Site Representative adding observations and notes. The report (P5) states: “On Wednesday 29th April, ……. (the Contractors) commenced pumping from the excavation into the area above the culvert of the coffer dam and were warned by ……… (the Consultants) that this was not in accordance with the method statement and was not appropriate. The settlement tanks were not in operation at this time.”
Then: “The pictures show some scum on the water similar to that which has been observed previously following rain fall on site. …….. (the Consultants) have repeatedly requested a floating boom be introduced by ……… (the Contractors) in this area”.
We read on P6 that: “Later that afternoon, Wednesday 29th April, ……… (the Contractors) commenced filling the settlement tanks with water from the excavation which was pumped to the Hessian dam in the area above the culvert and then re-pumped to the settlement tanks. The tanks were observed to be leaking by …….. (the Consultants)”
The Pit Water
It is here relevant to note what the leachate contained and what tidal forces were at work. At times of high tides, seawater would have forced itself through the voids and fissures which occurred through the fill, and which would have been opened up and enlarged by blasting and drilling. As soon as the excavation dropped below high water level, the sea came in through these channels and filled the excavation.
The contractors would have expected some water ingress, but were taken by surprise at the large volume that found its way in. They were unprepared for this amount and responsible for dewatering (draining) the site. The water became contaminated by whatever it encountered; in the case of the pit excavation this would have been in part inert fill, in part impacted diesel fuel and other hydrocarbons, in part heavy metals and possibly asbestos from random dumping. We observed rusty iron pipes and unidentified metal objects in the pit walls.
An early pit water sample was received by the States Analyst by the Construction Manager on 11th February, 2009 and showed that, compared to seawater tested outside the “rock bund” (rubble sea-wall), the pit water contained high quantities of lead, zinc, copper, chromium, nickel, manganese and arsenic, and a massive concentration of iron (114 times that found naturally in seawater). A scan of the report can be viewed to the left.
It became obvious at that point, that the water must be kept out of the excavation and that once contaminated, it could not just be pumped back to sea; indeed a Water Discharge Permit would be necessary in that event and would not be given.
Apparent dismissal of the seriousness of the problem by the construction Manager
It becomes evident, reading the emails that flowed between the Consultants’ Site Representative and the Construction Manager, plus a telling email from the Senior Manager, Contract Management & Drainage Infrastructure, that the Construction Manager was not giving clear answers to questions asked, and seemed to have a poor understanding of the terms of the Method Statement and Risk Assessments under which the Contractors were supposed to be operating.
In his email dated 7th April, 2009, to the Consultants’ Site Representative and copied to both the Clients and the Consultants’ Project Manger, we read:
“Gentlemen, I have to report that following …..’s (Construction Manager’s) clarification, I am none the wiser. As stated yesterday the entire bunker construction rests on the success of this operation. Specifically, there is risk of both the green concrete being compromised by seawater and floatation (sic) of the whole structure if there is a failure of the pumping system. As a minimum, I would suggest that the design assumptions for ingress are tested as excavation proceeds to ascertain whether or not the rate of ingress into the excavation is as expected.”
The Construction Manager had suggested using Bentonite to stem the water, despite advice from the Project Consultants that it would cause contamination. In an email dated 6th April 2009, The Construction Manager referred to Bentonite as “a natural silt” and seemed unaware of its potential to contaminate the marine environment. Similarly he was asked about his back up plan if the pump failed, and had none, no doubt initiating Management & Drainage Infrastructure’s Senior Manager’s concerns. In the same email, The Construction Manager confirmed that there were no alarms, systems or emergency procedures in place, nor any contingency plans, should the pumps fail.
The ROSPA Health and Safety Award
The events catalogued above contrast rather oddly with the glowing press release from the Manager of the Royal Society for the Prevention of accidents (RoSPA) as reported by the Jersey Evening Post on 12th October, 2010). The RoSPA Manager presented the contractors with a Gold Award for achieving high standards of health and safety management on the new incinerator and is quoted as saying:
“……….. (the Contractor) as developer of new Energy from Waste facility in Jersey has shown a commitment to protecting the health and well-being of its employees and others. Organisations which do this deserve to have such dedication recognised and that’s where RosPA Awards come in.”
The press release continues: “ The national awards have been running since 1956 and are based on assessment of a broad portfolio of evidence about the level of development and performance of an entrant’s occupational health and safety management system, and also takes into account the entrant’s reportable accident rate and enforcement experience.”
Key Issues and Conclusions
1. It is shown that the Regulator considered that the Water Pollution law was broken and that it was not an isolated incident, but a prolonged event.
2. Why did the Attorney General decided not to proceed with a prosecution, given the undeniable evidence, why did the investigation take so long, and how much did it cost the public who were in effect the ‘Purchasers’?
3. Why were SOSJ repeatedly told that there was not a problem by Environment Officers, while the Regulator was at the same time writing strong letters to the contractors and the Project Consultants’ Site Representative? Why were our early warnings and photos ignored?
4. How could the investigation be conducted without interviewing the key witness, a highly qualified professional who was employed specifically to manage the project safely? Why was he dismissed (he alleges) for doing his job?
5. Why was much made to the Press of the strenuous efforts to limit damage to a torn ash pit when other, even more serious, events were happening? Why were these other events unreported to the media?
6. Why were Health and Safety Officers not called in after a senior TTS Officer was nearly killed by a digger, and the pit had no safety barriers? Why was an unearthed generator and other unsuitable and untested equipment allowed to be used, especially on a water filled site? Why were there no back up pumps or early warning alarms in place?
7. How did the Contractors receive a Royal Society for the prevention of Accidents (RosPA) Gold Award when a series of events as described in their site minutes showed that site safety was lax in the initial phases? Were RosPA told of the Regulator’s letters, the ensuing investigation and if not, why not?
8. Why were the Environmental Scrutiny Panel not informed of these events? The excuse that Officers could not comment as there were ‘ongoing criminal investigations’ wore thin after 18 months, and when the AG decided not to proceed, the same reasons were given to the Scrutiny Panel at a later Hearing.
9. How informed were the TTS and Planning and Environment Ministers on the events on site? Was the Chief Minister even aware of events?
10. What were the Ramsar Bureau not informed of the risk and the pollution evnts that took place as was Jersey’s duty to do?
Many questions remain unanswered regarding Jersey’s largest capital project, a project it has been demonstrated that could have quite literally been ‘sunk’ in its early stages resulting in extended pollution of the Ramsar Area. The Environmental Scrutiny Panel were effectively hamstrung and impeded and could not complete their task, even when the case was dropped. This resulted in a waste of time, public money and resources.
SOSJ Recommend that as a matter of urgency the States Assembly approve our proposed amendment in the Water Pollution (Jersey) Law 2000 as worded in the petition sent to all States Members.We also recommend that the Environmental Scrutiny Panel is given the necessary powers so that information requested from departmental officers is not withheld.
We feel strongly that seawards of La Collette is the worst possible place to build an artificial ‘toxic headland’ made of ‘super-filled’ ash cells. Recent history has shown that what was considered ‘best practice’ 20 years ago regarding the safe disposal of incinerator ash is now considered extremely harmful. i.e. the spreading across the beach at the Waterfront, incinerator ash that now has to be very expensively removed. In another 20 years time a new generation may well be cursing us for this alternative method of ash disposal. Other methods must be found and ash residue from Guernsey’s waste must not be added to ours.
Jersey must adopt the Precautionary Principle and not rely on outdated technology, untested (and also very expensive) long term storage methods of toxic waste alongside both Jersey’s gateway by sea and the south east coast Ramsar Wetland area of International Importance.
Our petition to all Jersey States Members can be downloaded here: StatesMembersPetition