STALEMATE

AS PLANT SHUT DOWN
USHERS IN POLLUTION-FREE HAPPY NEW YEAR?

THE ENVIRONMENT AGENCY, CEMEX, and RUGBY BOROUGH COUNCIL still licking their wounds from the pasting they got in the local press over their failure to come clean and admit the truth about the November 16/17 hazardous bypass dust pollution incident, are having a temporary respite during the annual maintenance shut-down. Unfortunately the cleaning of the plant has previously shown high levels of pollution on the local particulate monitors, but no such obvious problem will be revealed this time - as RBC removed most of the ambient air monitors in June 2007, and CEMEX/EA have none to monitor such particulate pollution.

THE ENVIRONMENT COUNCIL is finally organising, in January, the much-delayed meeting of the Working Group (the three funders EA; CEMEX; RBC could not/WOULD not agree any budget from September 2008), to make recommendations to the EA, CEMEX, RBC, and the larger full group in an attempt to determine "agreed ways forward for engagement around the Rugby Cement Plant." The working group will meet first and consider the purpose and scope of future engagement, and clarify what is actually "UP FOR GRABS", who will be regularly engaged, how, where, and when, and how these outcomes will be communicated to the public - in fact exactly what the Rugby Cement Community Forum does/attempts to do. Meanwhile there are independent activities, that cost nothing, and which could all be undertaken to ensure continual progression and to re-establish momentum - IF ONLY the "big three" were willing and able?

CEMEX; EA; RBC to (re?)state and publish publicly their respective legal roles and responsibilities in relation to the MONITORING, REPORTING, and OPERATION of the Rugby Cement Plant, and to state their respective objectives and purpose for engaging with the public.

A CENTRAL REPOSITORY to be created by CEMEX mapping out, in a TRANSPARENT and PROACTIVE manner all their current, and forthcoming consultations, and applications, and planning applications, where all essential information can be accessed free of charge, and containing all the relevant background information. The EA and RBC are to do the same. cross-referencing where there is duplication in engagement and information in order to provide TRANSPARENCY and CLARITY of COMMUNICATION.

SHARED RESPONSIBILITY between all stakeholders for establishing and building respectful, clearer, more transparent communications. This needs to begin with EXPLICIT and HONEST discussion of COMMON OBJECTIVES as an agreed starting point. It should also be supported by an agreed communications protocol.

ENVIRONMENT AGENCY REFUSE ACCESS TO PERMIT and is as always the complete opposite of OPEN and TRANSPARENT. The Permit is not available on the Public Register, although CEMEX have now applied for yet another "simple" VARIATION to this INVISIBLE permit! It is a mystery how the public are to be consulted on this new application when they are refused access to the Permit? CEMEX apply to burn more contaminated RDF, along with 10 tph tyres, and during instability, and without any Emission Limit Values for longer periods etc etc. In response to the request for a copy of the permit for the RCCF the EA placed a note on the Public Register at RBC 25 November 2008:
WA/PPC/SP3735GK "Please find enclosed a NOTICE varying conditions of a Permit of 8 October 2003." This "note" consists of a list of 4 odd pages containing the conditions to be amended on page 2, and then some odd pages iii and iv with a list of variations FROM 2001 TO 2008, but seemingly they have forgotten the new EP Regulations, and there is no mention of that new permit issued by the EA in April 2008. WHO IS CONFUSED? WHAT permit is supposed to be in use at Cemex Rugby - any ideas anyone?

NOVEMBER INCIDENT TYPICAL OF THIS KILN: facts finally emerge: "a lump fell into the kiln restrictors which did not clear initially using blasters, and passed through the bypass ducting causing a safely interlock on the bypass ESP to activate and to "trip" emitting unabated course particulates for ONLY 4 minutes from the main stack." CEMEX do NOT fill in the mandatory section on how many kilos/tonnes of particulate were emitted, and the chemical analysis is NOT on the Public Register - but CEMEX claims analysis shows that "this dust is a material similar to partially weathered bypass dust," and was not dispersed. but was dumped on Lawford "due to the relatively calm weather conditions - a wind in a north westerly direction, at a speed of less than 10 mph." (no accurate record then? ) "Build-ups such as this are characteristic of a pre-heater system, and are effectively managed by routine checking and clearing. CEMEX has fitted new blaster systems, and in the combustion chamber, all of which go beyond the normal design requirements - as a result kiln flushes are very rare." (oh??) "This process is fully automated and occurs within minutes to minimise release of particulates. It would unfortunately appear that on this occasion unabated particulates resulted in a LIMITED DUST NUISANCE for a small area of local residents. It is not possible to guarantee that a fall of this nature will not happen in the future. No environmental damage occurred (?) - Cemex offer reimbursement for car cleaning."

EUROPEAN DIRECTIVES NOT IMPLEMENTED IN UK:
* AARHUS CONVENTION,
* PUBLIC PARTICIPATION,
* ENVIRONMENTAL IMPACT ASSESSMENT.

* On 4 December 2008 in Case C-247/07 the Commission found that the UK has FAILED to FULFILL its obligations under the 26 May 2003 Directive "providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to PUBLIC PARTICIPATION and ACCESS to JUSTICE Council Directives 85/337/EEC and 96/61/EC." The Directive was not transposed into national law within the prescribed period and so the Commission brought infringement proceedings and issued a REASONED OPINION on 18 October 2006, giving the UK two months, but the situation still remained unsatisfactory and the Commission took action. The UK admitted it had not adopted the Directive and that the action brought by the Commission was well-founded.
THE UK TO PAY THE COSTS.

UK ENVIRONMENTAL LAW ASSOCIATION 25 March 2008 advised the UK government that the Aarhus Convention had not been transposed into UK Law, and that there are significant barriers to public funding for environmental cases. There are no "rights" of redress over planning matters, and planning conditions are rarely enforced by the authorities, and there is no scope for access to environmental justice. The court cases are not FAIR, and EQUITABLE and are PROHIBITIVELY EXPENSIVE! They are not equally matched as the claimant has to fund all the case himself out of his own funds, which is PROHIBITIVELY EXPENSIVE, while the government uses unlimited public money, and also claims that there is "INSUFFICIENT PUBLIC INTEREST" even when it is obvious to all that there is a very wide public interest, in order to claim COSTS against the appellants. The only path open to the public who are being wronged is to complain to the Regulator (EA at Rugby), and they then usually fail to prosecute or to take any action - as at Rugby! Unlike court fees, which run into a few hundred pounds only, the overall costs of a civil action runs to hundreds of thousands of pounds: LORD JUSTICE CARNWATH 1999, in the context of environmental litigation, and with enduring relevance said: "Litigation through the Courts is prohibitively expensive for most people unless they are either poor enough to qualify for legal aid or rich enough to be able to undertake an open-ended commitment to expenditure running into tens or hundreds of thousands of pounds!" Also the pursuit of justice remains hampered by a systemic lack of specialist understanding within the judiciary. They frequently fail to produce results that adequately protect the environment, or serve the public interest, because of insufficient understanding of the technical context, and perceive the failings to be "little more than administrative breaches"
That perfectly describes the RUGBY CASE!