NORTH AYRSHIRE COUNCIL
5th December 2018
Title: Hunterston Construction Yard – SEPA Consultation Response
Purpose: To agree the consultation response on behalf of the Council to SEPA with respect to the application for a waste management license at Hunterston Construction Yard.
Recommendation: The Planning Committee agree the consultation response attached at Appendix 1.
1.1 SEPA has consulted the Council as Planning Authority on an application for a Waste Management Licence at Hunterston Construction Yard. SEPA’s guidance advises that the planning function and the licensing function should complement each other, rather than duplicating controls.
1.2 On 25th April 2018 the Planning Committee resolved to grant planning permission to three applications, mainly: i)Application under Section 42 of the Town and Country Planning(Scotland) Act 1997 to vary Condition 1 of Planning Permission ref16/00268/PP to allow use of the site for decommissioning of large marinestructures (Ref.17/01273/PP); ii)Erection of caisson gates and subsequent removal of existing bund (Ref.18/00132/PP); and, iii)Replacement and enlargement of existing jetty (Ref. 18/00134/PP).
1.3 The applications were granted subject to conditions.
1.4 In order to implement the planning consent the applicant, Clydeport Operations Limited, must apply to Marine Scotland and SEPA for certain licenses relating to the construction works and general operations on site.
1.5 On 3rd October 2018 Clydeport Operations Limited applied for a Waste Management Licence under the Environmental Protection Act 1990 (As amended) and Waste Management Licensing (Scotland) Regulations 2011. SEPA has issued a consultation to North Ayrshire Council.
1.6 This report summarises the Councils response to SEPA with respect to the consultation.
2.1 Planning permission was granted for the decommissioning of large marine structures at Hunterston Construction Yard. The use would result in the production of waste from decommissioning marine structures. In order to operate the site the applicant requires a Waste Management License from SEPA. Whilst Clydeport had proposed to seek a Pollution Prevention and Control (PPC) permit it is understood that SEPA has taken the decision that the decommissioning works would fall below the level of activities that would require a PPC and SEPA has therefore advised Clydeport to apply for Waste Management License.
2.2 As part of the Waste Management License (WML) procedure SEPA has consulted North Ayrshire Council on the content of the application and the activities on site.
2.3 The WML application contains the application form, supporting documentation in the form of a Certificate of Incorporation for Clydeport, a lease for the site, the approved planning application forms, a Working Plan for the site and the Ports Emergency Plan.
2.3 SEPA’s guidance states that the planning system controls the development and use of land. It therefore has an important role to play in determining the location of development including waste management and disposal facilities. Planning controls are not an appropriate means for the detailed control of pollution from waste management facilities. This should always be done by SEPA through the licensing system. In the same way, licence conditions should not cover issues which are fundamentally about development and land use, except where there is not any planning permission. Important issues in the context of this consultation response would be the contents of the proposed Working Plan. The Working Plan contains details of the general operation of the site including operating hours, exported waste types, waste storage, decommissioning operations, pollution control and emergency procedures.
2.4 The application states that the proposed operation hours would be Monday to Friday 7am to 7pm and Saturday 7am to 1pm. A list of the expected types and annual quantities of waste to be handled by the site is outlined within the Working Plan as are the quantities that could be stored on site. Members should note that the values provided are annual rather than daily quantities. The expected start date is as soon as the WML is granted.
2.5 The WML was submitted to SEPA on 3rd October 2018. A consultation request was issued by SEPA on 16th October 2018. Whilst there is a deadline to respond within 28 days of the consultation request SEPA has agreed to an extension of the consultation period until 6th December 2018.
2.6 As part of the Council’s internal consultation process, Planning Services has consulted with Environmental Health, who offer the following response: The Hunterston Marine Services Centre Working Plan document dated 3 October 2018 submitted with the application confirms in Section 6.5 Noise Control “All site operations shall be carried out so they do not give rise to nuisance noise beyond the site boundary”. The relevant planning permission relating to noise emission from the site requires “The rated noise level, as defined in BS 4142:2014, from activities associated with the construction, repair and decommissioning of large marine related structures, permitted under Condition 1, must not exceed the background noise level by 5dB(A) or more at the curtilage of any noise sensitive property. For the avoidance of doubt this condition would not apply to any operations that are licensed by SEPA or Marine Scotland” It is recommended that the inclusion of a similar condition be imposed on any waste management licence for site activities licensed by SEPA in order that the operations do not give rise to nuisance noise beyond the site boundary. There is no objection to the application provided SEPA is satisfied that the limits set for any relevant discharges to air, land and water will be protective of the environment. The planning permission (Ref. 17/01273/PP) contains a number of conditions including condition 3, quoted above. Whilst the applicants Working Plan does outline a number of measures to avoid nuisance noise (Section 6.5) it would be appropriate to request that SEPA place a similar restriction on noise from the site to protect amenity.
2.7 It is noted within the Working Plan that the operator proposes to export scrap metal from the Hammerhead Quay or the Hunterston Coal Jetty with all other wastes exported by sea, rail or road. The planning permission controls, under condition 1, all operations within the existing dock and quay. It does not extend to the areas identified within the Hunterston Coal Yard or Jetty.
2.8 No details regarding the export of materials by road have been provided. The traffic implications on the road network would be assessed by Transport Scotland, as Trunk Road Authority. However in the interests of residential amenity, it would be recommended that the Council seek the application of a condition, ensuring that any Heavy Goods Vehicles or other larger vehicles transporting waste from the site are subject to an approved routing agreement.
2.9 Members will be aware of a number of objections to the Waste Management License. These objectors have been referred to SEPA so that they may consider the concerns being raised.
3.1 Subject to the proposed Waste Management License and the contents of the applicants Working Plan it is recommended that North Ayrshire Council in the response to SEPA state that certain aspects of the waste export do not benefit from planning permission and request that should the WML be granted the following conditions be applied:
(i) That the rated noise level as defined in BS 4142:2014, from activities licensed by SEPA must not exceed the background noise level by 5dB(A) or more at the curtilage of any noise sensitive property. Reason: To ensure that the site activities licensed by SEPA do not give rise to nuisance noise beyond the site boundary.
(ii) That any vehicles exporting waste materials by road shall be subject to a routing agreement to be approved by SEPA in conjunction with North Ayrshire Council. Reason: In the interests of amenity and road safety.
(iii) That no waste materials from the site shall be exported via the Hunterston Coal Yard or Jetty. Reason: To ensure the Waste Management License complies with the approved planning permissions.
3.2 A copy of the draft response is provided with Appendix 1. 4.
Financial: The Consultation has no financial implications out with normal budgetary provisions.
Human Resources: The matters raised can be addressed within existing staff resources
Legal: Environmental Protection Act 1990 (As amended) and Waste Management Licensing (Scotland) Regulations 2011
Equality: Children and Young People: N/A
Environmental & Sustainability: To ensure environmental practices are in line with appropriate regulation.
Key Priorities: The consultation response supports the Council Plan priority – “Protecting and enhancing the environment for future generations.”
Community Benefits: N/A
Karen Yeomans Executive Director Economy & Communities For further information please contact Ross Middleton, Planning Officer on 01294 324379
Background Papers N/A
Executive Director (Economy & Communities): Karen Yeomans ECONOMIC GROWTH
Head of Service: Caitriona McAuley Cunninghame House, Irvine KA12 8EE Tel: 01294 310000 www.north-ayrshire.gov.uk
Your Ref: W/M/L/1173385 Our Ref: RM/17/01273/PP
6th December 2018
Registry Angus Smith Angus Smith Building 6 Parklands Avenue Eurocentral Holytown ML1 4WQ
APPLICATION FOR WASTE MANAGEMENT LICENSE APPLICATION ID: WML/L/1173385
APPLICANT: CLYDEPORT OPERATIONS LIMITED LOCATION OF SITE: HUNTERSTON MARINE SERVICES CENTRE
Thank you for your consultation and for the extension of time in which to submit comments.
Advice to SEPA
The Council would have no objection to the license, provided that the proposals to utilise Hunterston Coal Jetty are omitted from the license and that SEPA is satisfied that the limits set for any relevant discharges to air, land and water would be protective of the environment.
The Council has considered the detail of the proposals and can provide the following comments.
On 25th April 2018 North Ayrshire Council as Planning Authority granted planning permission for a variance of Condition 1 of Planning Permission ref 16/00268/PP, to allow use of the Hunterston Construction Yard for decommissioning of large marine structures (Ref.17/01273/PP).
The Council would note that the applicants form contains a copy of the planning consent.
The applicants Working Plan refers to the export of materials via sea, rail or road with proposals to export waste through Hunterston Coal Jetty as well as the docking of structures at the jetty prior to their movement to Hunterston Construction Yard. The Council would advise that planning consent does not exist for the use of the Hunterston Coal Jetty in association with the decommissioning site at Hunterston Construction Yard and would raise objection to any operations associated with the Waste Management License that proceed without the benefit of planning permission.
The export of waste materials via the road may be acceptable subject to information with respect to vehicle movements, type of vehicle and transport routes. The Council would advise that any waste materials being exported from the site by road are minimised and where unavoidable, are subject to a routing agreement.
The Hunterston Marine Services Centre Working Plan document dated 3 October 2018 submitted with the application confirms in Section 6.5 Noise Control “All site operations shall be carried out so they do not give rise to nuisance noise beyond the site boundary”.
The relevant planning permission relating to noise emission from the site requires “The rated noise level, as defined in BS 4142:2014, from activities associated with the construction, repair and decommissioning of large marine related structures, permitted under Condition 1, must not exceed the background noise level by 5dB(A) or more at the curtilage of any noise sensitive property. For the avoidance of doubt this condition would not apply to any operations that are licensed by SEPA or Marine Scotland”
The Council would recommend the a similar condition be imposed on any Waste Management Licence for site activities licensed by SEPA in order that the operations align with the planning permission and ultimately do not give rise to nuisance noise beyond the site boundary.
Should SEPA be minded to grant the proposed Waste Management License, North Ayrshire Council would highlight that the proposed Export procedures outlined within the Working Plan do not benefit from planning permission. The Council therefore request that the following conditions be applied to any license:
(i) That the rated noise level as defined in BS 4142:2014, from activities licensed by SEPA must not exceed the background noise level by 5dB(A) or more at the curtilage of any noise sensitive property.
To ensure that the site activities licensed by SEPA do not give rise to nuisance noise beyond the site boundary.
(ii) That any vehicles exporting waste materials by road be subject to a routing agreement to be approved by SEPA in conjunction with North Ayrshire Council..
In the interests of amenity and road safety.
(iii) That no waste materials from the site shall be exported via the Hunterston Coal Terminal.
To ensure the Waste Management License complies with the approved planning permissions.
Should you have any queries regarding the contents of this letter please do not hesitate to contact James Miller on 01294 324315.
Yours Sincerely Executive Director (Economy & Communities): Karen Yeomans Caitriona McAuley Head of Service (Economic Growth)
Health and Safety Critique of Proposed Oil Rig Decommissioning at Hunterston Marine Services Centre
This document has been produced on behalf of Friends of the Firth of Clyde (FOFOC)* in response to the submission of Clydeport Operations Ltd to SEPA for a Waste Management Licence. We ask that the Health and Safety Executive and SEPA take note of this during their vetting of the application.
FOFOC are extremely alarmed by the application for a simple Waste Management Licence. We firmly believe that the project is part of a wider salami sliced planning approach to avoid full scrutiny of the complexities and risks of bringing unprecedented amounts of highly toxic waste to the Firth of Clyde. The group firmly believe that the scale and nature of the toxic materials involved in the project should have required approval under the Pollution Prevention and Control Licensing process. Indeed, all previous planning documentation references a PPC licence and the opportunity for consideration of the complexity and risk during this process.
Although formally the Waste Management Licence approval process is not open to public scrutiny, we feel so strongly about the risks that it is our public duty as a group of concerned residents, to put forward our concerns and to highlight the perceived lack of due diligence and openness from certain regulators and government bodies.
*FOFOC are group of over 1,400 residents with a long history of neighbouring Clydeport Operations Ltd.
Health and Safety Reporters
This analysis has been carried out by two former Health and Safety Managers/ Engineers/ Practitioners/ Auditors with a collective experience of 30 years at senior level. Both have worked in large quality organisations and have been involved in health and safety auditing and consultation.
Examination of Clydeport Operations Ltd statements regarding management of Health and Safety
We have taken a view of the likely hazards presented by the proposed oil and gas decommissioning facility and the enormous quantities of organic and inorganic waste material which is to be handled. This information has been obtained from the documentation provided by Clydeport Operations Ltd. as part of their application for a Waste Management Licence.
In our view this is an operation presenting significant risk to the Health and Safety of those involved in the activity, those visiting the site, those involved in transport and handling of materials, those responsible for re-cycling and disposal of the resulting materials and for local people in the vicinity of the site.
Given this level of risk we conclude that a robust, high quality Safety Management System is essential to control the proposed activity and we would expect this to be provided to the relevant licensing authorities as part of the application process.
3.1. The only document which makes any mention of the possible existence of a Safety Management System is in the Working Plan written and submitted by Enviro Centre on behalf of Clydeport Operations Ltd as part of the SEPA Waste Management Licence.
3. Examination of Clydeport Operations Ltd. Statements Regarding Management of Health and Safety
3.2. They refer to the existence of a Safety and Environmental Management System used by Clydeport in their role as Port Authority. The documentation relating to this was not displayed or referenced in the Working Plan.
3.3. Examination of documentation accessed from internet searches, identified the Peel Ports Group Ltd. Marine Safety Management System. Whether this is the document alluded to by Enviro Centre in the introductory section of their Working Plan is not clear. In section 1.3.1 this Peel Ports MSMS document states “This document describes the Peel Ports Group Limited Marine Safety Management System (MSMS) for marine operations in the Ports of Clydeport, Ardrossan, Great Yarmouth, Heysham, Liverpool, Manchester and London Medway. It has been compiled in line with the PMSC and the Guide to Good Practice on Port Marine Operations.” In our view it is essentially for marine related port activities and as such does not cover the on-site Decommissioning activities defined in the licence application.
3.4. No evidence could be found for the existence of a policy document covering these land- based decommissioning and related activities.
3.5. The Working Plan produced by Enviro Centre includes the Port Emergency Plan as Appendix C.
This document is concerned solely with the procedures and processes which should be followed in the event of an emergency within the port area involving marine activities. In our view this Port Emergency Plan does not address the likely emergencies which might arise as a result of the Decommissioning activities at the Hunterston Marine Services Centre.
3.6. The whole documented submission to SEPA for the Waste Management licence fails to identify any clear lines of responsibility for the management and control of the intended activities. The licence form section 2.10 regarding Site Operator states “Decom operator to be confirmed”. The Working Plan produced by Enviro Centre states in its introduction that the Plan details who is responsible and the lines of communication between Clydeport and the operators of the site. In our view there is a complete absence of any line of responsibility for the Health and Safety aspects of the operation:
- There is no named operating company.
- There is no organisation chart showing responsibilities.
- There is no clear interface control system between marine and land-based activity.
- There is no clear interface for emergency control between the decommissioning activity and general port activity.
- There is no evidence for the existence of a Safety Management System in the decommissioning company.
3.7. In conclusion, The Reporters are dismayed that the whole plan demonstrates no ownership and appears to be a desktop exercise to satisfy the information requirements of the WML. The Working Plan was written and submitted on behalf of Clydeport Operations Ltd. by Enviro Centre, an office based environmental consultancy. Further, we express great concern over who will control this site and hold the appropriate licences to operate.
Planning approval implications
5.1. In view of the above concerns and given that health and safety regulations constantly change due to experience and epidemiological studies, it is considered that an Environmental Impact Assessment is required.
5.2. A catastrophic release of toxic waste or the rise of an epidemiological cluster would lead to an inquiry of the Regulating Authorities’ “due diligence” if this aspect had been overlooked because of a flawed planning process. Generation of base line data for the health status of employees is required for ongoing monitoring and for determination of any causal effects. This is particularly critical given the quantities of asbestos which are to be handled and it is also required for the health monitoring of workers exposed to the high quantities of heavy metals described in the licence application.
Competence of applicants and unknown decommissioning operators
This is a dangerous scenario, where the applicants perhaps do not fully understand the ramifications of the effects of the hazardous products and the quantities of such products that they are proposing to handle at this site.
Clydeport Operations Ltd. and its un-named contractor/s are proposing to handle extremely toxic waste in enormous quantities. This is a high-risk activity. No clear evidence of the competence of either party has been provided other than the inclusion of two named individuals employed by Clydeport Operations Ltd at a different location.
Absence of evidence of adequate safety management systems
7.1. We firmly believe that there is fundamental failure within Clydeport Operations Ltd. to adequately oversee safety management systems. Examination the safety culture of the parent Peel Ports Group and as evidenced by the poor attention given to Health and Safety in the Annual Strategic or Directors reports which form part of the Annual Financial Return of the Group. We also offer a higher-level reasoning for consideration.
7.2. The Reporters of this document have worked in organisations that have striven to be best in class and were, and are, amongst the best Health and Safety operators in the UK. Their organisations have received numerous high level ROSPA awards and won the internationally recognised premier performance award for occupational health and safety the ‘Sir George Earle Trophy’.
7.3. In our view Clydeport Operations Ltd. should aspire to reach these highest values but given their current performance level we would expect this improvement process to take of the order of five or more years to achieve. This improvement process of course assumes total commitment from the very top of the organisation and the provision of the resources, both in terms of manpower and finances, needed to effect the change.
7.4. It is well established that Good Health and Safety equates to good quality and high productivity. This leads to profit, highly effective organisations and reputational enhancement. Whether Peel Group has this level of commitment remains to be seen.
7.5. In our opinion the ownership and structure of the Peel Group does not lend itself best placed to achieve the highest Health and Safety performance.
7.6. This vast company of around 400 subsidiary and holding companies is in private ownership. This is an extremely unusual circumstance for a company of this size. The individual private shareholder has 75% of the equity of the business, the remaining 25% being foreign (Saudi) owned. The organisation is effectively a fiefdom. This is a very critical observation when considering the culture of the company and its attitude to Health and Safety. There are effectively no shareholders to hold the organisation to account. This places higher demands upon external regulators for maintenance of standards.
7.7. We believe, like most seasoned Health and Safety practitioners, that:
- Safety starts at the top
- The culture comes from the top
From observation of the activities of the Group we believe that the business culture is ruthless and as a result successful. Generally, the Group is very adept at studying the rules within which it wishes to operate and then exploits these rules to gain maximum competitive and business advantage. In addition, the Group appears to actively constantly seek means to navigate around the rules, while staying within the legal framework. These cultures may be seen by some as admirable and part of the competitive business sphere. The Group has also been very successful at gaining approval of people at the highest level within the UK. Again, this may be regarded as extremely astute in a business or influencing sense. However, this approach when present alongside efforts to develop a good Health and Safety Culture may be seen to present an almost impossible obstacle to achieving success in the latter.
The Safety Message from the top must be clear. The aim should be to do better than the legislative targets. Safety rules should not be circumvented in any circumstances.
7.8. In order to provide some insight to the above observations on where Health and Safety lies in cultural importance in Peel Ports Group, we have examined the Annual Financial Returns for the company over the past ten years and extracted the following information:
Report for the year ended March 2008
Directors Report Principle Risks and Uncertainties No Health and Safety Report
This was the Directors Report for the financial year in which three people were drowned as a result of the sinking of the tug “Flying Phantom” in the Clyde and for which accident Clydeport Operations Ltd. were later prosecuted, found guilty and fined £650k. It might have been expected that although the Annual Report had no Health and Safety section, an amazing omission in its own right, a special section would have been added to at least acknowledge this tragic loss of life. None was provided.
Report for year ended 31 March 2011
Directors’ Report Principle Risks and Uncertainties No Health and Safety Report
Only a set of standard words which tacitly accepts that accidents will occur.
Report for year ended 31 March 2012
Directors’ Report Principle Risks and Uncertainties Same wording as 2011 except removed the word “totally”.
Report for year ended 31 March 2013
Directors Report Principle Risks and Uncertainties
No Health and Safety Report
No Health and Safety Report
A changed set of words but not a report
Report for year ended March 2014
Strategic Report Principle Risks and Uncertainties No Health and Safety Report Same wording of standard statement given in 2013 but relevant section of report now called Strategic Report in place of Directors Report
Report for year ended March 2015
Strategic Report Principle Risks and Uncertainties No Health and Safety Report A bald statement of the fatality and immediately a repetition of the tacit acceptance of accidents happening.
Report for year ended March 2016
Strategic Report Principle Risks and Uncertainties No Health and Safety Report A statement which seems more concerned with the monetary aspects of the fatality than explanations of the causes and specific measures being taken to prevent recurrence.
Report for year ended March 2017
Strategic Report Principle Risks and Uncertainties No Health and Safety Report During this Annual Financial Report there is a more substantive section covering Health and Safety and the stated intentions of the Group.
This at last is a first recognition of what might be wrong with the Health and Safety approach which has been adopted to date. This should be the start of a journey for the Group, a journey which will take several, approximately 5, years to deliver the required Health and Safety performance.
It is worrying to note that the Report for the year ended March 2018 is not yet visible on the Companies House Site and therefore no information is available to form an opinion on the progress or otherwise of the Health and Safety improvement process described in the March 2017 Annual Financial and Strategic Report.
7.9. In all of the Directors or Strategic Reports studied, Health and Safety was very poorly reported. No data on performance was provided. The topic, where considered at all, was well down the priority list in the order of reporting with financial and other business aspects taking precedence. Health and Safety did not even merit the first position in the Operational section of the report. This is typical of organisations which have a poor Safety Culture. This analysis indicates that the current Peel Ports organisation, of which Clydeport Operations Ltd. is a part, is not, in our view, a fit and proper entity to adequately control the hazards and risks presented by the decommissioning proposals.
7.10. In our view the following features are what should be present in a high performing company with the correct attitude to Health and Safety.
High performing companies build these items into their Safety Management System
Executive safety site visits
Safety Advisor safety inspections
Risk analysis (Generic and Local)
Analysis of accidents. Their number, type and root causes
Effective and quality H&S communications
Safety Targets Company- wide and Local
Aspiration to gain safety awards
Health and Safety being a primary standing agenda item at all business meetings
Executive annual appraisal and bonuses tied to Health and Safety Performance
Annual audits and reviews
Promotion of Safety Representatives and H&S Committees
A quality Safety Management System annotating Policy statements and Duty holders
7.11 This list is not exhaustive but demonstrates the difference between what Clydeport Operations Ltd. has presented and the approach of high-performance companies. It also demonstrates that high quality companies see compliance with Health and Safety Regulations merely as the base line. High performing companies seek to reduce risks and incidents further to achieve levels which are “As Low as Reasonably Practicable” (ALARP).
7.12 The Clydeport Hunterston Marine Services Proposal involves the handling and storage of immense quantities of special waste and requires the carrying out of numerous hazardous activities. Given the analysis of the readiness of the organisation to carry this out in a safe manner leads us to the conclusion that the likelihood of a catastrophic release is high.
Working plan submitted by Enviro Centre Ltd
8.1 Although some effective work has been done in compiling this document, the Reporters feel that it is just a desk top exercise with no discernible long-term links to the licence applicant, Clydeport Operations Ltd. The Working Plan appears to be merely a document produced to meet the regulatory requirements of the Waste Management Licence.
8.2 One of its major weaknesses is the absence of an “Organisation and Operations” chart. There are no named implementers of the activities listed or of the relevant Duty Holders.
8.3 Working Plan Weaknesses and Omissions
Organisation chart and duty holders
Policy statement and commitments
Record keeping and control
In house Safety Rules
Risk assessment process
Appointment of competent safety advisors
Accident investigation near miss reporting
Statutory work equipment inspection
Compliance with CDM
Inspection, training and lifespan of PPE
Site specific Safety Rules
Compliance with COMAH Regulations
Hazard identification and procedural deficiencies in the working plan
9.1 Concrete pad strength – The project requires hard standing for storage of large assets, sections of assets and other waste materials. The proposal may be fatally flawed by a failure to carry out geological and hydrological assessments. From the Waste Management Licence application, it is indicative that a constant waste of the order 150,000 tonnes will be stored at any one time. The storage of this material is shown as taking place on the surface of the site surrounding the existing dry dock. This comprises land reclaimed forty years ago from the Hunterston and Southannan Sands. The base soil type is known to be poor and there is an amalgam of soft clay and sand.
In the absence of geological and hydrological survey data it is not possible to confirm that the structural strength of the concrete pad, which will require to be constructed to accommodate the high loadings required for storage, will be adequately supported by the existing substructure.
9.2. Fire – Although there is an emergency plan, the nature of the “Business Organisation” does not show training requirements, equipment and the likely risks to first responder staff and “Others” from contact with special wastes engulfed in the flames/explosions. This needs to be re-visited urgently.
9.3. Asbestos – The quantity of Asbestos (no types specified) is very concerning. The request in the Waste Management Licence for 1,000 tonnes to be held at any one time, combined with a weak Safety Plan, has the potential for an event resulting in the catastrophic release of airborne friable fibres, and exposing employees, contractors and others to serious risk. A Generic and a Local Risk Assessment should be carried out. Links to a laboratory for identification of samples are not provided. Knowledge, experience and strict compliance with the Asbestos regulations of 2012 are required and no evidence of these aspects is presented in the Working Plan.
9.4. Demolition Waste Creation – The hot cutting of steel from the assets to be decommissioned will create a residue that may be hazardous and/or toxic with steel swarf, paint finishes and organo-tin antifouling being present. The likelihood of this fine waste entering the marine environment is high due to the location of this activity. Clydeport Operations Ltd.’s reputation and past performance on environmental controls is poor. Photographic evidence can be supplied to show a total lack of compliance when undertaking coal operations. Although there is a plan showing a dual pump and filtration unit, there are no budgetary notes or completion dates for the provision of these facilities.
9.5. Marine Growth – With a declared storage of 2500 tonnes of marine growth at any one time there is a high probability of obnoxious smells, and the potential for self-heating and ignition if the material is stored in bulk. The safety plan calls for the use of sprinklers to control the odour problem, but past similar control measures to prevent coal stockyard fires were not satisfactorily managed by Clydeport Operations Ltd. There may also be a problem with scavenging seabirds which has not been addressed in the Working Plan.
9.6. Polychlorinated Bi-Phenyls – These carcinogenic compounds are to be stored in quantities up to 25 tonnes at any one time. The risk to humans and other creatures in the environment is quite destructive. PCB’s have extremely long lives, are difficult to neutralise, and are easily absorbed into the food cycle and into living organisms. The Working Plan indicates that all PCB’s will be stored in bunded areas but provides no further indication of the measures required to control these persistent materials and the procedure to be followed in the event of a release of the material from its container or failure of the bunding arrangement.
9.7. Accidental Contaminant Release – The Working Plan to control effects of Accidental Contaminant Release, are, in our view, lamentable. This is a major risk of the highest order, and the plan essentially calls for employees to run around with sacks of sand to control any spillage. This section will have to be revisited by trained and experienced practitioners who can give effective advice. Full bunding of all identified risk areas is recommended.
9.8. Heavy Metals – These may, in certain cases, be special waste with severe health implications for humans, flora and fauna. Heavy metals will be extracted from “Battery Shacks” and this is stored to a maximum of 1,000 tonnes per year. The movements of the batteries will need to be closely monitored. The Working Plan makes no reference to the need for occupational health screening of operators who are exposed to heavy metals. This is required in order to establish a baseline and to provide continuous monitoring of blood levels of metals to ensure containment methods and PPE used are preventing bio-accumulation of metals.
9.9. Unregulated Activity – Issues round site security, arson, theft, vandalism and unregulated employee behaviour are not well explained and examples of documentation to control these events is not visible in the Working Plan.
9.10. Management Controls – Management Controls are not tabled alongside “Responsibility Charts”. This requires to be rectified and defined in an “Organisation and Arrangements” format. There is no clarity on which ‘party’ holds the responsibility for site safety. In our view this is fundamentally appalling and cannot be accepted for such a hazardous site.
9.11. Synergies of Pollutants – The Working Plan has not addressed the issue of synergies of pollutants and this could be catastrophic on such a site. Containment statements are not convincing or reassuring. Examples of synergies of pollutants exist with such materials as Diesel Fuel, Unspecified Flammables, Ethylene glycol, etc.
9.12.Inventories – There is no description of how inventory will be accurately controlled. Losses due to theft or other unregulated activity are practical realities. Descriptions are given of likely incoming material, but this is likely to deviate from actual quantities removed. In stock waste material inventories require control and measurement. Weigh bridges are to be provided but these only control quantities of waste leaving the site. In addition, controls over the number of waste movements must be regulated and this has not been adequately defined.
9.13.Communications – This is not addressed. If workers from out with the UK are present arrangements must be put in place to ensure that all communications are clearly understood, particularly relating to Health and Safety critical activities. Safety notices, obligatory statutory forms and effective managerial instructions have not been provided in the Working Plan.
9.14.Waste movements – Significant quantities of large-scale mechanical handling plant and lifting equipment is required in this type of waste handling activity. All plant and equipment should be fit for purpose, in good condition, used in a controlled manner and operated as designed.
The Working Plan makes no reference to these issues or the types of regulations to be followed. The LOLER and PUWER applications are not quoted.
The Working Plan fails to describe the need for Authorisation of Employees who will operate the required plant.
Outside contractors involved in waste movements, whether by road, rail or sea should be “Safety Passported”. Access, egress, parking and heavy lifting areas should all be clearly marked, and appropriately trained and authorised staff used to control all such activities.
The Working Plan fails to address these issues.
9.15.Health and Environmental Monitoring – Well controlled sampling, data gathering, and analysis of Occupational Health and Environmental factors is essential on a high hazard site such as this. It is required to control the potential dangers, to alert management to trends which require corrective action and to provide reassurance for employees, contractors and others.
Given the quantities of asbestos which will be present the hazards presented by airborne pollutants are very high. Clydeport Operations Ltd’s demonstrated record on this is poor and known to the Regulatory Authorities.
Health screening of operators at engagement should be carried out and a programme of routine testing agreed with the appropriate health professionals and then implemented.
Noise control is described in the Working Plan but there is no reference to the total noise levels expected. A baseline background noise survey should be used to set limits for the additional permitted noise levels.
The Working Plan makes no specific reference to the use of the correct Personal Protective Equipment by operators or visitors to reduce noise exposure.
9.16. Working at Height – This is not described in the Working Plan, but this is a problem for employees, as in the early stages of the decommissioning activity, Mobile Elevating Work Platforms won’t be effective so scaffolding and appropriate PPE will be required. These operations require specific training which again is not discussed in the Working Plan.
Clydeport Operations Ltd. have a very poor safety record in this area and have had fatalities and severe injuries associated with working at height on the Hunterston site. They have been prosecuted and found guilty for such deaths and injuries.
Examination of the RIDDOR statistics and legal case records will reveal these findings.
9.17. Demolition – Demolition of any existing structures on the site will require registration with the Health and Safety Executive and the application of the appropriate CDM regulations. This is not explained or discussed in the Working Plan.
9.18. In House Safety Rules – Safety rules by the organising company are not known and it is uncertain if there is a “Permit to Work” system or restricted work activity documentation. Hot Work permitting is mentioned in the Working Plan but detailed authorisation for plant and work activity is unknown.
9.19. Naturally Occurring Radioactive Materials – Applications for the shipment of NORM waste must be supported by an assessment of all practicable waste management options. This has not been described in the Working Plan. 500 tonnes of this material is to be held on site at any one time.
For NORM wastes, applicable radioactive waste policy is set out in the UK Low Level Waste (LLW) Policy9
In our view, given the large quantities to be handled, and which have been applied for in the Licence application, there is need for special examination and clearance procedures.
9.20. Safety Representatives and Safety Committees – Since it is projected that there may be up to 500 employees, under HASWA there should be safety representatives appointed and a safety committee commissioned. This is seen in the Courts as normal ‘Good Practice’.
No mention is made of this in the Working Plan.
9.21. Sale of Recovered Components – This is a well-known practice within the rig dismantling world. Items such as generators, fuel tanks, engines, gearboxes, propellers, sea valves, control rooms, instrumentation, cranes and hydraulic lifting devices etc. may be offered for sale as operational items.
These sales and movements of the items will involve third party purchasers operating in a myriad of transport means, which will cause problems to the transport infrastructure surrounding the site. This will potentially create an overload of the adjacent major road system which the Scottish Government already know is over desirable levels particularly through the adjacent village of Fairlie, where the road dimensions are below acceptable standards for heavy goods vehicles. No ready solution is available at this point in time to reduce the usage of the road system.
Clydeport Operations Ltd – Organisation and observed health and safety indicators
10.1. Sadly, the historic incident record shows that the Health and Safety performance has been very poor.
10.2. In our view, Safety inspections, visits by Safety advisors and the inspection of the worksite by the executive team have not been visible nor do they appear to be rostered.
10.3. As discussed, earlier Peel Ports’ Annual Reports have very brief safety sections, which do not contain any metrics, nor do they describe any meaningful Health and Safety commitments. The lack of such things as budgets for Safety initiatives, the seeking to achieve Safety Awards, and executive bonuses and advancement linked to defined Safety performance measures, demonstrate a lack of ambition in
10. Clydeport Operations Ltd. Organisation and Observed Health and Safety Indicators
Health and Safety attainment and indicate the inadequate Safety Culture of the Peel Ports organisation of which Clydeport Operations Ltd. has probably the worst Safety performance of all.
10.4. In the event of a catastrophic incident at the proposed Decommissioning site, an inquiry about the legal obligations and duties of Clydeport Operations Ltd. “Responsible Persons” and the Regulating Authorities would be severely tested about their ‘Due Diligence’ in sanctioning this activity. We believe that the approving authorities should seriously consider whether Clydeport Operations Ltd. is a ‘fit and proper organisation to carry out these operations. The injury accident and fatality rate demonstrated by Clydeport Operations Ltd. combined with the known problem of the national fatality rate of the waste handling industry in the UK, combine to produce a heady mix of potential disaster that is hard to swallow!
10.5. Fatal Accidents – There have been five fatal accidents associated with Clydeport Operations Ltd in the last ten years. This is in an organisation of only approximately 160 people. HSE figures show that in the UK as a whole the fatal injury rate per 100,000 workers has been flat at around 0.5. The rates for Clydeport in three of the last ten years have been as follows:
• In year 2007 a rate of 1875, in 2013 a rate of 625, in 2015 a rate of 625.
The legal statements issued by the Courts when handing down the financial penalties to Clydeport also highlight the poor Health and Safety attitudes of the company. All of these fatalities were preceded by similar incidents where only through good fortune no serious or fatal event occurred. However, the company ignored them and went on to have the fatal events in very similar circumstances.
10.7 Known Injury Accidents – The following are injury accidents known to us. There are likely to be many more of which we have no knowledge:
- In 2001 a young operator fell around 90 feet.
- In 2013, the week before a fatal accident, an operator fell into the coal hopper.
We have been unable to access the RIDDOR information for Clydeport Operations Ltd. and as a result cannot provide a comprehensive assessment of the incident and injury performance of the company.
10.8. Other Indicators of lack of management control:
- Major fire at coal on-loader
- Numerous fires in coal stockyard
- Off-loader crane 72 metres high and weighing several thousand tonnes not secured and
blown along jetty, colliding with on-loader.
- Operators observed bulldozing waste coal into Clyde instead of transferring it back to stockyard. Activity reported to management by local resident. Activity then stopped by management. Why was this overt activity not observed by management from the site control tower?
- Coal dust dumped on Fairlie on several occasions due to poor operational control of off- loading activities at jetty. e.g. Crane operating at excessive speed. Unloading taking place during excessive wind speed conditions. Sections of dust containment shielding missing at hopper due to poor maintenance.
- Fumes, including oxides of nitrogen, affecting the residential area of Fairlie due to uncontrolled spontaneous combustion of coal stored in stockyard. Response: it’s the type of coal from Russia! Real reasons apart from source are: Inadequate use of sampling prior to discharge from vessel, inadequate monitoring, and inadequate spray drenching of coal stacks.
- Coal slurry escaping onto SSSI. Problem identified by local residents not management. Mitigation for slurry escape implemented by management inadequate and allowed to fall into disrepair.
- Asbestos cement debris in SSSI and on rock armour site boundary accessible by public. Problem identified by local residents. No action taken by management.
- Excessive noise from poorly maintained equipment during coal handling operations.
- Poor standard of communication with local community.
- No lifejackets worn by operators on jetty.
- No safety boat at jetty during current site demolition operations and which have included over-side working. See Notice to Mariners 67/18 which implies safety boat presence.
- Pressure on Demolition Contractor during current demolition activity due to completely unrealistic time scales for the operation. Cesscon Decom the originally nominated Oil Rig Decommissioning Operator stated in publicity materials that their facility would be operational by quarter 4, 2018. This was then revised to quarter 1, 2019. Their publicity video shows the jetty in use so is dependent on removal of current equipment. Clydeport Operations Ltd. Notice to Mariners 67/18 suggests that activities required to remove assets at the jetty would last approximately 15 weeks commencing July 24, 2018. To date one of the large off-loader cranes has been partially demolished, a further complete crane and the on-loader remain to be tackled. Again, the timescale for the activity is completely unrealistic and can only result in unacceptable pressure on the demolition contractor.
- Filthy coal lorries running on A78. No effective washing stations. Danger to the public from increased heavy goods traffic through Fairlie. Fatality to resident sitting in her own home due to truck crashing through house wall. Whole operation not what was laid out in formal documentation which indicated coal would be transported by rail at this site.
- No notification to emergency services, local authority or local residents of large explosions during demolition of heavy plant in coal stockyard demolition activity. Large concerns raised given proximity to Hunterston Nuclear Stations.
- Navigation Lights out on the deep-water jetty which is deemed to be of ‘Strategic National Importance.’ Failure reported to Estuary Control by local resident. Eventually a Notice to Mariners issued advising problem. Lights never fixed. Clydeport Operations Ltd. Is the Port Authority.
- Hundreds of tonnes of coal present under the jetty at the terminal from spillages and poor work practices.
- Acidified water in suds ponds on the coal stockyard site is leaking into the SSSI.
- Current demolition activity at site and jetty should have been considered through an EIA process. Not clear that CDM notification took place to cover Health and Safety aspects. Screening process took place retrospectively, months after start of work.
- Enforcement action taken by HSE during current demolition activities as a result of external concerns being expressed regarding unsafe practices.
This is a list compiled by independent locals observing the behaviours of Clydeport Operations Ltd. from Page | 12
the outside. Imagine the list which could be created by trained safety observers on the inside who had a good rapport with the operators doing the work!
Summary of Conclusions
1) This is an extreme high-risk site.
2) The proposed quantities of toxic waste in are extraordinarily high.
3) No risk assessment is available.
4) Clydeport Operations Ltd. Working Plan is deficient
5) The Hunterston site operators are not known nor are the duty-holders.
6) The Clydeport Operations Ltd. managerial control structure is not clear.
7) The competence of the named companies and their representatives is challenged.
8) No documentation is visible about the movements and monitoring/control of special waste from the site to re-processors.
9) The local residents have a just cause to be concerned about this proposed operation and its operators.
10) Political aspirations for job creation should not interfere with the legalities of planning, licensing and health and safety law. This principle is enshrined in our democracy and in the separation of the executive from the judiciary.
Statutes and Regulations considered in this examination
REACH Regulations 2008
Health and Safety at Work Act 1974
CLP Regulations 2016
Asbestos Regulations 2012
LOLER Regulations 2018
Construction, Design and Management Regulations 2015
PUWER Regulations 1998
Management of Safety Regulations 1999
Lone working Regulations (Scotland)2012
Control of Substances Hazardous to Health 2002
Confined Spaces Working Regulations 2014
Fire Prevention act 2005 Fire prevention regulations 2006
COMAH Regulations 2015
- The negative EIA screening opinion has been affected by Peelports and planning authorities’ repeated insistence that development will not directly infringe the SSSI.
- It is widely accepted that the surveying techniques that are used to determine Ordnance Survey tidelines are inadequate and do not properly represent Mean Low Water springs.
- In Scotland, the current Mean Low Water Springs is the legal cadastre. This tideline is used as the Local Authority jurisdictional boundary and is the seaward limit for marine SSSIs.
- Surveys of the intertidal zone indicate that the hammerhead quay dredging will take place above MLWS level, within the Local Authority jurisdiction boundary, thus directly impacting the SSSI.
- Peelports are committing offences under both the Town & Country Planning and Marine Scotland Acts in providing misleading information in planning documents.
1. Peelports have provided misleading information to the planning and environmental authorities, repeatedly insisting that the development will not infringe the SSSI, in order to achieve a negative EIA screening opinion.
During the EIA screening process Peelports have repeatedly stated that:
- “no significant direct impact on SSSI” (Cormack & Fleming 2012)
- “avoids encroachment in to the SSSI” (Cormack 2017a & 2017b)
- “proposed development is outside the SSSI” (Cormack 2017a & 2017b)
- “No direct impacts on the SSSI are anticipated with dredging activity taking place out with the SSSI” (Cormack 2017a & 2017b)
- “As the proposed development is out with the SSSI, direct impact is considered unlikely, although post dredging siltation may settle within the SSSI” (Cormack 2017a & 2017b)
- “blanking of sensitive benthic communities and the eelgrass beds within the SSSI (>1km away) is therefore considered to be highly unlikely” (Cormack 2017a & 2017b)
Marine Scotland and SNH accept “the proposal could adversely affect natural heritage interests of national importance”, but have provided a negative EIA screening opinion, in part because they were mislead by Peelports and told that the SSSI would not be directly impacted by development. They have stated:
- “no dredging within the SSSI” (Bland 2012 ).
- “no additional impacts to the SSSI” (Walker 2016).
Using reserved planning powers, NAC planners provided a negative screening opinion, on the basis of information submitted by Peelports. The planning committee and Council are mistaken in their belief that the SSSI will escape direct impacts. They have stated in planning application responses:
- The applicant has confirmed that no dredging would occur or be deposited within the SSSI (Yeomans 2018a & 2018b)
- The overall integrity of the SSSI would not be compromised (Yeomans 2018a & 2018b)
- “No infringement of the SSSI” (Gallagher 2018)
Elected representatives, including Paul Wheelhouse MSP & Kenneth Gibson MSP, have stated that:
- “We know the protection of the SSSI is a paramount consideration for Peelports and protection of the SSSI has been included in the feasibility work” (Wheelhouse 2018)
- “Marine Scotland state that any potential impacts can be identified and mitigated during the marine licensing process without requiring the support of a full EIA” (Gibson 2018)
- “The dredge pocket at the hammerhead quay is designed with a stable 1:6 dredge slope which avoids encroachment into the SSSI” (Gibson 2018).
2. It is widely accepted that historic surveying techniques used to determine OS tidelines are inadequate and do not properly represent Mean Low Water Springs datum.
The Ordnance Survey tidelines that have been adopted by developers, planning and environmental authorities provide an inadequate representation of Mean Low Water Springs around the proposed Hunterston development. This is accepted by marine planners and it is normal practice for developers to survey coastal development sites. All parties are currently relying on proxy based tidal datum generated in the 1960s before the Hunterston construction yard was ever reclaimed from the sea.
- Sutherland (2012) conducted extensive research on errors involved in Ordnance Survey tideline mapping. The positional accuracy for tide line capture is constrained by the precision and stability of the feature being measured. Tidal marks that lie on unconsolidated material such as mud or sand may be subject to frequent vertical and horizontal movement resulting from erosion or accretion.
- Tidal marks on shallow sloping surfaces are prone to significant changes in horizontal position as a result of a small change in tidal height. (Fitton 2017, Ruggiero 2003 & 2009).
- Ordnance Survey reported problems in matching the OS topographic representation of MHW line and MLW line and the UKMO depth area polygon, concluding that their maps do not have a clean and coherent MLW line. Therefore, judgement must be used in analysing even the most recent digital maps which utilise outdated tideline information gathered using what are now considered inappropriate survey techniques (Ordnance Survey; 1882, 2003, 2004, 2006)
- Mean Low Water Springs mark, and hence Extent Of the Realm is subject to continuous change but the captured alignment of a tide line (in Ordnance Survey products) is a snapshot on one day. It is not practical to revise tide lines very frequently (Edina A) and must be used with caution.
- A variety of modern survey techniques were used to determine errors in Ordnance Survey datum at Millport and indicated considerable changes in datum since the 1962 MLWS OS survey (Seet Poh Aik 2002).
- Isostatic re-balance in the Hunterston area has been estimated to be 1.4mm per year (Shennan 2009), which equates to 56 cm that the land has uplifted in the 40-odd years since OS tideline was last surveyed.
There is an extensive body of literature that supports the need for up-to-date mapping of marine boundaries and inadequacy of Ordnance Survey datum to properly describe the Mean Low Water Springs tideline. A recent response from Ordnance Survey to a Marine Scotland consultation highlighted the need for revision of tideline boundaries (Snell 2011). The use of Ordnance Survey maps and datum, by government authorities, are a function of mapping agreements with the Scottish Government and understood that they cannot be relied on to accurately determine the level of Mean Low Water Springs. This is particularly relevant for coastal marine construction proposals in highly dynamic sedimentary environments like Southannan SSSI.
- Southannan Sands SSSI is located within Sub-cell 6B2 of the Ayrshire Coastal Management Plan. The policy for shoreline protection recommends an Advance The Line policy and recommended that “The effect of this on the sediment regime within sub-cell 6b2 will require careful study prior to implementing any works, however this area has already been shown to be accreting thus a policy of advance the line is equitable with its present status“. Further modification of the coast in this sub-cell are stated to have: “Potential significant negative impacts to the Southannan Sands SSSI and on local habitats from construction or rehabilitation of hard defences and reclamation of land” (RPS 2018).
It is incredulous for developers to offer, and planners to accept, marine planning proposals and drawings that use historical (1960’s) tideline datum from the era before the Hunterston construction yard was reclaimed from the sea. It is clear to anyone that actually visits the site that the level of Mean Low Water Springs is significantly different from what is being offered by Peelports. Peelports are aware of the real tide levels around Hunterston but have suppressed this crucial information to elicit a negative screening opinion from planning and environmental authorities.
3. It is accepted by Scottish Law Commission and various Acts that Mean Low Water Springs is the tideline used for Local Authority jurisdictional boundaries and is the seaward limit for marine SSSIs.
- The cadastre and legal seaward boundary, in Scotland, for Local Authority jurisdiction is the current seaward extension of the Mean Low Water Springs tideline (Hansom 2017).
- The seaward planning boundary for marine SSSI’s, in Scotland, is the Mean Low Water Spring mark – equivalent to the Local Authority jurisdictional area (JNCC a&b).
- The planning and licensing process that has been offered by Peelports has been progressed to subjugate terrestrial and marine planning regimes but is based on an inaccurate Mean Low Water Springs mark.
- NAC have taken authority of land planning issues down to the MLWS tideline and Marine Scotland have stated that, in this case, they will be responsible for planning and licensing issues below the MLWS tideline.
- Peelports are aware that the SSSI bounds all sides of construction yard apart from West facing aspect (Fleming 2016).
- Peelports accepts that SSSI “may extend into intertidal areas, out to the jurisdictional boundaries of local authorities, Mean Low Water Spring mark in Scotland” (Cormack 2017a & 2017b).
The physical and current Mean Low Water Spring tideline marks the North Ayrshire Council jurisdictional boundary and seaward limit of the Southannan Sands SSSI.
North Ayrshire Council planners are incorrect in their assumption that the 1960’s Ordnance Survey datum tideline forms the local authority jurisdictional boundary. The council have actually created their own precedence and have already accepted the 2018 MLWS jurisdictional boundary in a recent planning application (17/01005/PP). This planning application involved the expansion of an oyster farm below the 1960’s Ordnance Survey datum tideline but was above the current 2018 MLWS tideline. The NAC Report of Handling accepts that the zone for oyster farm expansion forms part of the Fairlie Sands (northern compartment of SSSI) and located within their jurisdictional intertidal foreshore zone.
4. Surveys of the intertidal zone indicate that the hammerhead quay dredging will take place above MLWS level, within the Local Authority jurisdiction boundary, thus directly impacting the SSSI.
There is a high degree of certainty that the proposed hammerhead quay dredge pocket will directly impact the Southannan SSSI. We have conducted numerous surveys in the area. These surveys have used a variety of GPS devices, during different weather conditions (wind direction & air pressure), and have been calibrated using tidal information from the nearby National Tidal & Sea Level Facility tidal gauge at Keppel Pier. We have calculated that 18,385 m2 of SSSI will be directly impacted by the dredge pocket.
- Peelports are aware that the SSSI extends out to MLWS and the limit of local authority boundary (Cormack 2017a & 2017b).
- Peelports are aware that dredging at hammerhead quay will take place above the MLWS tideline (within NAC jurisdiction and legal boundary of SSSI). This is evidenced in their own reports (Webley 2012, Anon 2018) where they have published the MLWS level for Hunterston area is 0.4m above admiralty chart datum.
5. Peelports are committing offenses under Town & Country Planning and Marine Scotland Acts by providing misleading information in planning and supporting documents.
- All the site drawings and other plans submitted by Peelports, in planning applications, are misleading, as they do not show the current Mean Low Water Spring tideline. Readers are left with the assumption that the depicted tideline represents the current NAC jurisdiction and SSSI boundary. Also, they make no reference to the datum that is used on their diagrams.
- It is common knowledge that the level of Mean Low Water Springs at Hunterston is 0.4m above chart datum. Indeed, Peelports are aware of this and have cited this information in supporting documents. Admiralty Charts of the area indicate the intertidal area to be dredged beside the quay is 0.4-0.5m above chart datum and therefore located within the NAC and SSSI boundary.
- The sea level information presented on developer’s technical drawings is incorrect and misleading and does not correspond Hunterston tidal information.
Peelports own reports actually indicate the real level of MLWS but information has been suppressed:
- The environmental consultant’s Intertidal Survey Report was submitted alongside their Environmental Review to support a ‘negative screening decision’. Scrutiny of these documents clearly indicate that the Developers are aware that MLWS is 0.4m above Chart Datum and that an area of SSSI will be dredged.
- On the day (3/5/12) that the environmental consultants chose to conduct their intertidal survey, the lowest the tide that day was predicted and recorded as 0.4m. Normally, intertidal surveys are best conducted during periods of spring tide and no reason was offered in the report why the survey was conducted near the neap tidal range.
- The consultants and developers accept that the SSSI “may extend into intertidal areas, out to the jurisdictional boundaries of local authorities, Mean Low Water Spring mark in Scotland” (Cormack 2017a & 2017b)
- The consultants provide photographs in the report that show the intertidal sands area immediately beside the quay. The sea level in the report photographs cannot be less than 0.4m and at the level of MLWS on the day of survey.
- This means that the sandflats in the photographs are above the level of MLWS and are located within the jurisdictional boundary of NAC and form part of the SSSI. The environmental consultants. Peelports are aware that this area will be destructively dredged.
- The Peelports photograph (below) provides smoking gun evidence that the developers are wilfully misrepresenting, and have full knowledge of actual, MLWS sea levels around the Hunterston construction yard and that the SSSI will be dredged, contrary to information they presented to elicit a negative screening opinion.
- The developers have modified satellite/aerial imagery in planning and supporting documents that misleads the true extent of the sand flats, and the area of SSSI around the Hunterston construction yard.
- The photograph on the left (above) provides a realistic interpretation of MLWS around the development site. The photograph on the right has been overlaid with the inaccurate, Ordnance Survey Datum derived, GIS shapefile that provides misleading representation of sand flats at Hunterston.
It is an offence under the Nature Conservation (Scotland) Act 2004 to intentionally or recklessly damage any natural feature specified in a SSSI notification. The notified features of Southannan Sands SSSI are: Biological, Intertidal marine habitats and saline lagoons: Sandflats. Development threat to these SSSI features and/or threat to the OSPAR listed Priority Marine Features are considered a significant impact of national scope. Any direct threat to the SSSI or PMF’s should trigger a mandatory EIA.
The Developers have continually insisted that there will be no infringement to the SSSI. This was accepted in good faith by planning and environmental authorities and used to justify the negative EIA screening opinions. It is clear to anyone that visits the site during the period of MLWS tides that the proposed dredging activity will directly, and destructively, impact the SSSI. These concerns have been expressed and indicated on site visits with SNH Area & Policy Officers, Chair of Clyde Marine Spatial Planning Partnership, NAC Local Authority Councillor, but no actions have yet been progressed. We have also informed NAC planning and legal officers but have had no response. All public bodies and officers are reminded that under the Nature Conservation Act 2004 they have a duty to further to conservation of biodiversity and prevent destruction of the SSSIs notified features.
It is clear from the developers planning and supporting documents that they are fully aware that the historic MLWS level they have offered on planning documents does not coincide with the NAC jurisdictional and seaward boundary of the SSSI. We have been told by Scottish Government Ministers that “the protection of the SSSI is a paramount consideration for Peelports and protection of the SSSI has been included in the feasibility work”. However, we would like to reiterate to all authorities that Peelports have and continue to suppress key environmental information that has directly influenced EIA screening decisions and continue to systems game the planning process.
We believe there has been and continues to be a systemic and manifest breach of EIA Legislation which is wholly contrary to the Scottish Government’s stern commitment to uphold European environmental legislation. We also believe that there will be breaches of the Nature Conservation (Scotland) Act 2004 and international OSPAR agreements.
Peelports have wilfully offered misleading information, which has without doubt changed the course of EIA screening and planning outcomes. Material misrepresentation and omitting vital environmental information can be considered an offence under various Town & Country Planning, Marine Scotland Acts and related regulations. We are aware that Peelports may now amend documentation for marine license applications. We believe it would be incredulous for authorities to progress or for applications to be further massaged through the application of planning conditions to concord with planning and environmental regulations.
- Peelports must be investigated for submitting misleading documentation and for offences under Town & Country Planning Act, Marine Scotland Act, Nature Conservation Act and other regulations.
- North Ayrshire Council and/or Ministers must call-in the existing planning applications, reconsider and reapply EIA screening procedures and implement a full Public Enquiry.
- Marine Scotland should advise that, due to substantial material change, a full consultative EIA is now required for the whole Hunterston PARC development.
- SNH should properly review the natural heritage features at the SSSI. And to include SSSI notification external to the current 2018 MLWS baseline.
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Bland, M. (2012) Screening decision under Part 2, Regulation 11 of the Marine Works (EIA) Regulations 2011 (As Amended). Clydeport – Hunterston Port proposed upgrade and extension to existing quay on north of construction yard and associated dredging. Marine Scotland [Online] Available at http://www.fairliecoastal.org/13-03-12-screening-opinion-by-marine-scotland/
Cormack, E. (2017a) Jan 2017 Draft Hunterston Construction yard Environmental Review. Enviro Centre [Online] Available at http://www.fairliecoastal.org/17-01-17-draft-environmental-review-by-enviro-centre-ltd-obtained-under-foi/
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EDINA A, Boundary Line – Guidance Notes, edina.ac.uk., [Online] Available at https://digimap.edina.ac.uk/webhelp/os/data_information/os_products/supporting/boundaryline_guidance.htm#coast
Fitton, J.M., Hansom, J.D., and Rennie, A.F. (2017) Dynamic Coast – National Coastal Change Assessment: Methodology, CRW2014/2.
Fleming, C.(2016) Briefing document from Enviro Centre Ltd to Marine Scotland. [Online] Available at
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Gibson, K. (2018) Leaflet endorsing Peelports plans distributed to Fairlie community. [Online] Available at http://www.fairliecoastal.org/14-09-18-kenneth-gibson-msp-hunterston-parc-propaganda-leaflet/
Hansom, J.D., Fitton, J.M., and Rennie, A.F. (2017) Dynamic Coast – National Coastal Change Assessment: Coastal Erosion Policy Context, CRW2014/2. [Online] Available at http://www.dynamiccoast.com/files/reports/NCCA%20-%20Coastal%20Erosion%20Policy%20Context.pdf
JNCC A, Guidelines for the selection of biological SSSI’s [Online] Available at http://jncc.defra.gov.uk/pdf/SSSIs_Chapter01.pdf
JNCC B, Defining ASSI/SSSI with ‘Marine Biological Components’ and setting out a process for determining their contribution to the UK MPA network. [Online] Available at http://jncc.defra.gov.uk/pdf/Defining%20SSSIsASSIs%20with%20marine%20components_final.pdf
National Tidal and Sea Level Facility (2017) Definitions of tidal levels and other parameters [Internet]. Available from: (http://www.ntslf.org/tgi/definitions).
Ordnance Survey (1882) OS 307 Instructions to Surveyors. Ordnance Survey, Southampton, UK.
Ordnance Survey (2003) ISB Project 195 – ICZMap Project Manager’s project completion report. Pp44.
Ordnance Survey (2004) The Positional accuracy improvement programme companion. [Online] Avaliable at http://www.ordnancesurvey.co.uk/
Ordnance Survey (2006) MasterMap User Guide. Version 6.1.1, April, 2006. [Online] Available from http://www.ordnancesurvey.co.uk/.
RPS (2018) Ayrshire Shoreline Management Plan. RPS Group, NAC, SAC [Online] Available at https://www.north-ayrshire.gov.uk/Documents/FloodProtection/ayrshire-smp.pdf
Ruggiero P, Kaminsky GM and Gelfenbaum G (2003) Linking proxy-based and datum-based shorelines on a High-Energy coastline: Implications for shoreline analyses. Journal of Coastal Research Special Issue 38: 57-82.
Ruggiero P and List JH (2009) Improving accuracy and statistical reliability of shoreline position and change rate estimates. Journal of Coastal Research 25(5): 1069-1081.
Seet Poh Aik (2013) Accurate low-water line determination: The influence of Malaysia’s legislation and coastal policies on maritime basline integrity. MSc(res) Thesis, Glasgow University.
Shennan, I. and Milne, G. and Bradley, S. L. (2009) ‘Late Holocene relative land – and sea-level changes : providing information for stakeholders.’, GSA today., 19 (9). pp. 52-53.
Snell (2011) Formal Response by Ordnace Surevy to Scottish Government Consultation. [Online] Available at www.gov.scot/resource/doc/349075/0116654.pdf
Sutherland, J. (2012) Error analysis of Ordnance Survey map tidelines, UK. Proceedings of the ICE – Maritime Engineering, 165, pp.189–197.
Walker, G. (2016) SNH response to NAC Planning Application 16/00268/PP. [Online] Available at http://www.fairliecoastal.org/16-00268-pp-snh-response/
Webley (2012) Hunterston Quay Remedial Works: Eelgrass and Horse Mussel Intertidal Survey. Enviro Centre [Online] Avaliable at www.fairliecoastal.org/09-12-eelgrass-and-horse-mussel-intertidal-survey/
Wheelhouse MSP, P. (2018) Letter from Paul Wheelhouse MSP to Ross Greer MSP. [Online] Available at http://www.fairliecoastal.org/27-06-18-letter-from-minister-paul-wheelhouse-to-ross-greer-msp/
Yeomans, K. (2018a) NAC Planning Application decision and responses. NAC [Online] Available at http://www.fairliecoastal.org/17-01273-pp-application-approved-subject-to-conditions/
Yeomans, K. (2018a) NAC Planning Application 17/01273/PP: Decision and Responses. NAC [Online] Available at http://www.fairliecoastal.org/17-01273-pp-application-approved-subject-to-conditions/
Yeomans, K. (2018b) NAC Planning Application 18/00134/PP: Decision and Responses. NAC [Online] Available at http://www.fairliecoastal.org/18-00134-pp-application-approved-subject-to-conditions/
Councillor Alex Gallagher refused to read our his written answer to a question asked in North Ayrshire Council meeting on 19/09/18. We are concerned that Cllr Gallacher was avoiding public scrutiny from people watching the NAC Council meeting live on Web TV. A written record of his answer is available below but should also watch the video clip as has reference to NAC’s “robust process”.
A full clip of NAC Council meeting can be found on the NAC website >>> https://north-ayrshire.public-i.tv/core/portal/webcast_interactive/369032
Question (s) a question by Councillor Murdoch to the Cabinet Member for the Economy in the following terms:-
“An Environmental Impact Assessment was not considered necessary for the creation of the Caisson Gate and other work to the Hunterston Basin as each individual oil rig would require both a decommissioning statement and an EIA. Does this mean that work to the basin for which planning permission has now been granted, cannot commence until the first oil rig has been through this process and an EIA produced for the entire process?”
Response “No. The approved works and use at Hunterston, includes the decommissioning of oil rigs, platforms, and similar structures that have served the oil and gas industry and offshore renewable industry. It was judged that an Environmental Impact Assessment was not required for these works.
Marine Scotland, Scottish Natural Heritage and SEPA were all consulted as part of the planning process and raised no objections to the application other than technical matters that can be addressed by conditions that will continue to protect the local environment.
There is no requirement in terms of the Planning Acts for each rig which is to be decommissioned at the site to be subject to a decommissioning statement or an EIA, although they may be subject to the EIA procedure through the Petroleum Act. The responsibility for compliance with the terms of the Petroleum Act rests with the Offshore Petroleum Regulator for Environment and Decommissioning.
We are aware of the concerns raised by some members of the local community about the prospect of an oil rig decommissioning site at this location and its potential impact on the environment, wildlife and tourism.
There is no infringement of the SSSI.
We also recognise that the Hunterston peninsula and deep water port has the capability of bringing national and international levels of investment to Ayrshire and Scotland and as such has the potential to transform the economic prospects of this area.”Responses to Council Questions
The Friends of the Firth of Clyde believe that EIA Legislation and due process has been corrupted and Hunterston PARC Oil-Rig Decommissioning Project must be realigned with the EIA Directive and transposed legislation. The approach that Peelport Developers and Planning Authorities have taken, and continue to take, in relation to the scoping, screening, planning and consenting processes constitutes an ongoing and manifest breach of the EIA Directive. This approach is contrary to the stern commitment from Government to uphold and correctly transpose European Law. This strategy is already having a significant environmental impact; fragmenting and polluting the nationally protected SSSI with direct impact to OSPAR listed habitats and European Protected Species. Public Bodies and Planning Officers are failing their legislative duty to further the conservation of biodiversity through non-implementation of robust environmental screening processes, pursuing a paper chased mitigation strategy that is being purposively used as a surrogate for a full Schedule EIA investigation.
1.2 The planning procedure has been purposively subdivided (salami-sliced) to avoid application of the EIA Directive. This restrictive process, using delegated powers, further deprives the community the opportunity to challenge decisions.
1.3 Demolition works must be considered under the EIA Directive; recent paper-chased screening procedures have been used to breach the purpose of the EIA Directive.
1.4 The developer and all authorities (NAC, SNH, SEPA, MS) have failed to fully identify the scale of environmental impacts during the EIA scoping and screening process.
1.5 The NAC Planners and Planning Committee have made environmental screening and other decisions without consulting their own Biodiversity Officer during any of the planning or screening procedures. Those charged with making decision are largely unaware of their statutory responsibilities with respect to enhancing and promoting biodiversity.
1.6 The desk-top environmental appraisal process and inadequate site visits have failed to identify OSPAR listed Priority Marine Features that are currently impacted by developer’s pollution, and are at significant environmental risk from further development.
1.7 The ‘negative’ screening opinion is contrary to the SNH Site Management Plan that acknowledges the risk of significant environmental impact from further coastal development.
1.8 Mitigation proposals during screening procedures were used to frustrate the purpose of the EIA, and serve as surrogate for it. It is contrary to the Directive to start from the premise that although there may be significant impacts, these can be reduced to insignificance by the application of various conditions.
1.9 The SSSI is misrepresented in the CMPP Clyde Assessment and within the marine spatial planning framework. The site is at risk of further fragmentation and being de-notified as the Clyde Marine Plan progresses.
1.10 Statutory Consultees CMPP were not informed of screening / planning / license procedures by fellow board members Peelport, NAC & SNH. This avoided environmental scrutiny and prevented CMPP from performing their Statutory duty to screen for marine related EIA. This is contrary to the ecosystems approach and ethos that underpins Clyde 2020 vision.
1.11 Peelports have exerted an overt influence over the terrestrial and marine planning procedure. This conflict of interest extends to membership of CMPP and links to the Clyde Harbour Authority.
1.12 The SNH screening opinion was made without site examination, realisation of environmental impacts, knowledge of marine ecosystems, and relied on the developer’s desk-top environmental appraisal. SNH’s failure to attend to environmental concerns, during the local authorities subjugated planning process, has led to increased environmental threats.
1.13 There has been manifest and material changes in the development proposal and environmental appraisal since the original screening opinion. Consequently, this must be re-considered under Schedule 2 Paragraph 13 (a/b) EIA.
1.14 The subjugation of Terrestrial and Marine Planning legislation has exacerbated the negative planning issues that are accepted to exist in Integrated Coast Zone Management. Idiosyncrasies in procedure between Terrestrial and Marine Planning are being exploited by developers and the local authority to circumvent the EIA Directive.
1.15 The Petroleum Act EIA legislation is being incorrectly offered by NAC local authority and planning committee as a surrogate for a mandatory Schedule 1 EIA. A Petroleum Act EIA will not be enforced to examine decommissioning, construction and operations at the Hunterston decommissioning port and is being used to frustrate a mandatory EIA by NAC.
1.16 There has been a lack of openness and transparency during the whole Hunterston process, frustrating the community’s ability to adequately challenge aspects of planning process and leading to a possible time bar on review or ministerial appeal.
1.17 Some FOI requested documents have been withheld or lost by the Authorities. We believe if these documents are related to Screening and the associated due process, they may be highly relevant to our concerns and should be released to us.
1.18 We are dissatisfied that public money has been awarded by the Decommissioning Challenge Fund to advance Hunterston PARC proposals without a stipulation that a full EIA must be conducted.
Wide Scope and Broad Purpose
Schedule (Annex) 1 Paragraph 8(b): Trading ports, piers for loading and unloading connected to land and outside ports (excluding ferry ports) which can take vessels over 1350 tonnes. (REF)
The Developers interpretation of Paragraph 8(b) from their ‘Clarification to Request for Screening Opinion’ correspondence to NAC Planning states:
“The development is not and would not be a trading port which this paragraph is intended to address, it would be a construction and decommissioning yard and the proposed activity is a recovery, reuse and recycling operation, not trading goods”
Contrary to the Developer’s insistence that Paragraph 8(b) is only meant to address ‘Trading ports’, the logical semantics of this paragraph 8(b) clearly address:
- Trading Ports;
- Piers for loading connected to the land;
- Piers for unloading connected to the land;
- Outside ports (excluding ferry ports) which can take vessels over 1350 tonnes.
2.2 The Courts have consistently held that the EIA Directive must be interpreted as having a ‘wide scope and broad purpose’ (Kraaijveld (Dutch Dykes) Case C-72/95). An example of how the ‘wide scope and broad purpose’ applies is found in the Court of Appeal judgment relating to a planning proposal to construct a storage and distribution facility (Goodman and another v Lewisham London Borough Council  EWCA Civ 140). The planning authority took the view that as such development was not specifically described in either the Directive or Regulations, there was no need to consider an EIA. However, following legal challenge, the Court of Appeal quashed the application because they said that the Annex description goes far wider than the normal understanding. They also held that the planning authorities decision ‘not to examine the reach of Annex descriptions’ was ‘outside the range of reasonable responses’.
2.3 The project descriptions are exactly the same for The Town and Country Planning EIA and the Marine Works Regulations EIA. North Ayrshire Council and Marine Scotland’s failure to assign this project to Paragraph 8(b) is wholly contrary to the ‘wide scope and broad purpose’ court rulings and failure to examine the interpretation of project descriptions is unreasonable.
2.4 The true extent of the Hunterston PARC project and specific purpose of hammerhead pier development were concealed from the Planning Authorities during screening process but the material changes since these decisions were made requires scrutiny.
2.5 I have used the Annex 1 Paragraph 8(b) as an obvious example but the interpretation of project descriptions, in both EIA Schedule 1 & 2, has been treated in a similar way at the bequest of the Developer towards NAC and also Marine Scotland. These include:
- Schedule 1 Paragraph 5: Installations for the extraction of asbestos and for the processing and transformation of asbestos and products containing asbestos.
- Schedule 2 Paragraph 4: Production and processing of metals
- Schedule 2 Paragraph 10: Infrastructure projects
- Schedule 2 Paragraph 13: Any change to or extension of development of a description mentioned in Schedule 2 where that development is already authorised, executed or in the process of being executed.
- Schedule 2 Paragraph 14: Any change or extension of development of a description mentioned in Schedule 1 where that development is already authorised, executed or in the process of being executed.
3.0 The ‘Planning Consent Process offered by the Developer has been progressed using multiple Local Authority planning consents:
- Application (16/00268/PP) to delete Condition 1 of planning permission ( 11/00230/PPM) to remove the temporary restriction on the use of the site at Hunterston Constrcution Yard.
- Application for variation of condition No.1 of Planning Permission (16/00268/PP, 17/01273/PP Large Marine Structures).
- Consents for improvements to quay (18/00134/PP),
- Creation of caisson dock gates (18/00132/PP) and shore based infrastructure.
3.1 Clear evidence of ‘salami slicing’ is contained in Enviro Centre’s letter of 10 January 2018 to North Ayrshire Council (obtained under FOI). This letter confirms NAC’s agreement that subdivision of Peel Port’s planning application should be instigated to ease the passage of the consent without EIA. Such collusion is illegal under current environmental legislation.
3.2 The EU Court of Justice approach to environmental protection where projects were being sub divided involves is illustrated in case C1-42/07 Ecologistas en Accion-CODA v Ayuntamineto de Madrid  PTSR 458. Where the planning authorities sub-divided a project into 15 independent sub projects, only one of which triggered an EIA. The court rejected the Developer’s argument stating that the project was contrary to the ‘very wide purpose of the Directive’ and should not fall outside its scope simply because the Annexes do not specifically refer to that particular kind of Project.
3.3 It has only been since the variation in planning to decommission large marinestructures (NAC 16/00268/PP, 17/01273/PP), and the release of the Developer’s marketing video (REF), that the true purpose of the pier development, via marine license process, and larger Project, are now being drip-fed to the Public. There is little doubt that the small pier at the construction yard is being redesigned and will involve intermodal trading, heavy lift, loading, unloading, storage and all other activities involved with operating a port complex that it is a trading port that will be involved in loading and unloading oil rigs and other large marine structures.
3.4 The splitting-up of Hunterston planning and licensing permissions is too restrictive a process and deprives a large number of affected people the opportunity to challenge decisions (Karoline Gruberv Unabhängiger Verwaltungssenat für Kärnten (C-570/13) Env LR D6). This ‘strategy’ has also prevented statutory marine planning consultees, having any input and restricted access to the EIA Scoping, Screening and Clarification decisions. The authorities have a duty to ensure a ‘wide access to justice’ even when making contentious decisions during early stages of the EIA Directive. (R. (on the application of Simmons) v Bolton MBC  EWHC 2729 (Admin)). And failing accepted procedures all affected parties should be shown courtesy and be entitled to a review. Liechtensteinische Gesellschaft fur Umweltschutz v Gemeinde Vaduz (Case E-3/15)  3 CMRL 15,
3.5 We believe it is a matter of urgency, interest, public record and with reference to (Mellor v Secretary of State for Communities and Local Government (C-75/08)  P.T.S.R. 880.), that the Competent Authorities have a responsibility to provide the reasons for underlying determinations. We accept the recent momentum, consultation and attempts to ease legislative burden and transposition of the EU EIA Directive into member state legislation. However the EIA Directive is explicit and should not be sacrificed by the subjugation of projects through the planning and licensing process.
Demolition and Site Preparation
3.6 The courts have defined that demolition and decommissioning works as a ‘phase’ of a ‘project’ and concluded that demolition works come within the scope of EIA Directive and constitute a project within the meaning of Article 1(2) thereof. (C-50/09, paragraphs 86-107). They concluded that demolition works cannot be excluded from the scope of national legislation and are within the Projects context in the EIA Directive.
3.7 Environmental pollution from the preparation and current ‘demolition phase’ of the Hunterston Project is already occurring over the SSSI, on Protected Shellish Waters, and poses a significant environmental impact to OSPAR listed bio-reef features. The pollution is within reach of European Protected Species, Cumbraes Marine Consultation Area and plagues our community and beaches. Screening for an EIA to do with demolition was submitted after demolition works actually started. There are hundreds of witnesses and evidence to testify that coal pollution was impacting the marine environment. The screening opinion was quickly paper-chased though delegated planning powers in an attempt to satisfy environmental requirements.
3.8 Demolition works are considered a phase of project under the Directive. It is contrary to the Directive to split up projects so they are less easily defined. Paper-chased, screening procedures for sub-projects cannot be used as a surrogate for an EIA and constitutes a manifest breach of legislation.
Significant Environmental Impact
4.0 Case law supports the Community’s opinion that this development should proceed with a mandatory Schedule 1 EIA. However for any avoidance of doubt we offer evidence that EIA Schedule 2 Directives test for ‘Significant Environmental Impact’ is achieved.
Site of Special Scientific Interest
4.1 The Project site is located on reclaimed land that has already reduced the area available for SSSI by up to 40%
4.2 Further fragmentation, environmental degradation and cumulative impacts that are occurring on the SSSI include but are not limited to: (1) Nuclear outflow pipe effects and related activities, (2) Non native oyster cultivation, (3) Persistent and ongoing pollution from Hunterston coal terminal, (4) Commercial bait and shellfish collection.
4.3 The Hunterston PARC Project proposes to remove an undetermined amount of capitol and maintenance dredge material from within, on the boundary and around impact zone of the SSSI. The Developers estimate that 200,000m3 of sand will be removed from the dredge pocket around the hammerhead quay and caisson gate. This equates to roughly 306,000 tonnes of dry sand. A staggering amount when you realise that this is 8800% more than the existing maintenance license allows.
4.4 The developers suggest the proposed 1:6 dredge slope will limit slumping from sand flats into dredge pocket. However, this slope will restrict the dynamic movement of sediment, which in turn will alter the sediment composition and related biotope communities on the SSSI.
4.5 A recent SNH survey (REF) of Southannan SSSI has indicated that the sandflats next to the development have an exceptionally high diversity of taxa (48 taxa per 0.08m2) and contains a heterogeneous and unique assortment of biotopes that are depend on sediment composition, grain size and sorting. The removal of material from the system will affect the biomass and diversity of animals on the sands.
4.6 We believe it is incredulous for anyone to suggest that there will be little environmental impact from altering the structure and removing the ‘sand flat’ feature the SSSI is actually designated for. The sediment dynamics on this site are critical for the ‘newly discovered’ Priority Marine Features mentioned below.
4.7 The boundary of a marine SSSI is a function of the Local Authority boundary at Mean Low Water Springs. As far as biological and system dynamics are concerned this is an arbitrary boundary and does not encapsulate or protect the sedimentary features and dynamic processes that fuel the SSSI. As such, the designation, it is not fit for purpose and in light of recent discovery of PMF’s and potential presence of others in the sub littoral requires more robust and emergency protection from imminent destruction.
4.8 The quasi designated Cumbraes Marine Consultation Area missed the grade during MPA designation cycle and also fell short during the NGO driven Nationally Important Marine Areas assessment. Our community believes that the marine area around Cumbraes including the SSSI’s deserve to be reassessed and could benefit distant and other protected areas if there was motivation to re-designate the areas as a Research & Development MPA.
Priority Marine Features in the SSSI
4.9 So far we have identified 4 OSPAR threatened / in-decline Priority Marine Features in the SSSI, 4 BAP Priority Marine Features & 3 Annex 1 Habitats Directive features. Apart from dwarf eelgrass these features have never been identified by SNH.
4.10 The SSSI contains large expanses (>50 ha) of dwarf eelgrass beds (Zostera noltii), of both local and national importance. Eelgrass beds are listed as a Priority Habitat in UK, Scottish and Local Biodiversity Action Plans. They are susceptible to disturbance, sedimentation, turbidity, marine and hydrocarbon pollution and are at risk from the developments and operations proposed for this site. The Developer’s desk-top environmental appraisal has excepted that there is likely to be smothering of eelgrass. Seagrass beds are on Annex 1 of Habitats Directive, OSPAR Threatened/decline and BAP Priority Habitat. As such any development that threatens them must be considered significant impact of national scope.
4.11 The SSSI contains a rather large biogenic reef structure that is clearly visible on Google Earth. The reef is composed of native oysters and living maerl. This structure is located within 100 metres of the proposed dredge pocket and is in imminent danger of destruction. It is highly unlikely that a still-to-be-produced paper-chased mitigation plan will ameliorate this impact. Oyster and maerl beds are both Priority Marine Features, OSPAR threatened/declining & BAP Priority Habitat. Maerl beds are also listed on Annex 1 Habitats Directive. As such any development that threatens them must be considered a significant impact of national scope.
4.12 The SSSI contains blue mussel beds on sediment, distinct from the Oyster/Maerl reef biotope described above. Again, this feature is highly sensitive to disturbance, sedimentation, turbidity, marine and hydrocarbon pollution and is at risk from the developments and operations proposed for this site. Blue mussel beds on sediment are listed on Annex 1 of the Habitats Directive, OSPAR threatened/ declining habitat & BAP priority habitat. As such any development that threatens them must be considered significant impact of national scope. Enviro Centre have concealed the presence of these features in the Eelgrass / Blue Mussel survey they have presented as part of desk top appraisal strategy.
4.13 The Community believe that other ‘listed’ habitats and species are present in the boundary of the SSSI. This sublittoral zone is within the Impact Zone of the SSSI and will be destructively impacted by the dredging activities mentioned above. These definitely include kelp and seaweed communities on soft sediment, and maybe the location of maerl and oyster beds, zostera marina beds, fan and horse mussel beds.
European Protected Species
4.14 The waters around Hunterston are home to resident cetacean species. A resident solitary common dolphin has a home range within 500 metres of the construction yard site and will be severely impacted and disturbed by percussive pile driving and proposed operational activities at Hunterston PARC. Clyde Porpoise CIC is working in partnership with the Sea Mammal Research Unit at St Andrews University and is committed to a long term study of the density, abundance and conservation status of harbour porpoise in the Clyde.
4.15 A postgraduate student has recently completed an MSc thesis that indicates the local waters are indeed a hot spot for this animal, with comparable densities to other high density areas of the newly created Porpoise Special Area of Conservation. Our data indicates that this area of the Clyde is an important calving and nursery area for this species.
4.16 Although originally concealed by the developer, it has now become evident that there will be extensive ‘percussive’ pile driving at the construction yard quay and caisson gate sites. Information supplied by the developer during the scoping and screening process provided misleading information and extended the impression that it was a simple modification to the quay, using sheet piling that utilises quieter vibration techniques. It is now known that over 120 percussively installed piles will be used to construct what is in effect a complete redesign and new quay structure. This intentional omission constitutes a material misrepresentation of constructional techniques and misrepresents true levels of acoustic impact, making the underwater noise assessment superfluous. As such it must be considered a material change since the original screening opinions were provided and project should be subject to re-screening as described in Schedule 2 Paragraphs 13/14 of the EIA Directive.
4.17 The underwater noise assessment supplied the Developer bases results and noise thresholds on 50 pile strikes per day. It is common knowledge that the ground around the Hunterston coal terminal and construction yard is difficult to set piles into. It is highly likely that it will take more than 50 strikes to set each pile and the operation will last for an undetermined amount of time. The underwater noise assessment is based on one pile being hammered in at a time and makes no allowance for other cumulative noise impacts or multiple pile drivers operating simultaneously.
4.18 There will be considerable and long term acoustic impacts from construction and ongoing under water noise pollution during the operation of the oil rig decommissioning port. If the EPS licence process is applied robustly, it is clear that this development proposal will fail the recommendations in the EPS Guidance Notice. There are no overriding, exceptional social or economic reasons for locating this decommissioning port at Hunterston. This should not be considered as justification in the EPS license procedures.
4.19 The Local Authority planning department set as a condition that developers must conduct extensive marine mammal surveys. The developer has not instigated this although construction works are presumed to start in Q1 2019.
4.20 The exact nature of pile driving activities and site investigation reports have not been made available but it is clear that percussive pile driving activities will go beyond tolerable and threshold limits discussed in the assessment.
4.21 The area around Cumbraes are known to be a hot spot for Basking Sharks and may be a critical location at the population level for this species. A full EIA would necessarily examine this issue and identify potential impacts from the construction and operation of a new oil rig decommissioning port.
4.22 The developers insist that there will be no disturbance to birds from construction and operation of this facility. The community would like to note that an existing gull nesting site has been seriously disturbed during the demolition of the coal conveyor belt system and likely will not be available during the next nesting season. The re-wilded construction yard is a known nesting location for many species of birds and the site will largely become unavailable to ground nesting birds.
4.23 The Developer’s environmental consultants have cited desk-top and out of date bird surveys conducted for the Offshore Turbine Test Facility, the Coal Fired Power Station EIA and nuclear facility. We would like to note that the methodology, results and assumptions from these surveys were heavily criticised by the Scottish Wildlife Trust and RSPB. These criticisms were a contributory factor for the Power Station application to be rejected. The environmental consultants cite their own ‘flawed’ surveys as credible peer reviewed work but they are neither scientifically credible, or fit for purpose.
4.24 The SSSI contains extensive mudflats that provide a critical food source for overwintering wild fowl. No meaningful assessment has been produced to determine impacts to them or loss of habitat to ground nesting birds. A mandatory EIA would have highlighted this fact and necessitated a scientifically credible survey and monitoring program.
SNH Management Statement
4.25 The Scottish Natural Heritage Southannan Sands SSSI Environmental Management Statement (20/03/13) for the site sates:
- The sandflats are of national significance
- Contains UK LBAP priority habitats
- 170ha (40%) of intertidal sand flats have already been lost to industrial land reclamation.
- SNH wish to “protect the site and to maintain and where necessary enhance its features of special interest”.
- That SNH aim to “maintain the extent of the intertidal sandflats by ensuring protection from damaging impacts, in particular any future coastal development”.
- The SNH SSSI Management Statement reiterates that “Coastal development could have an adverse impact on the sandflats through direct habitat loss and interfering with the natural processes in the coastal ecosystem”.
- With reference to existing and other industrial developments it says, “These development proposals all have the potential to have adverse effects on the sandflats feature of Southannan Sands SSSI”.
4.26 This current SNH management statement indicates that the SSSI is susceptible to the development impacts being proposed by this type of project. This situation should have automatically triggered an EIA Schedules in either Annex I or II.
4.27 It beggars belief, other than eelgrass, that the Priority Marine Features mentioned above are not included in the description section for the SNH management statement, that was updated as recently as 2013. It is also worrying that these features were not picked up and reported in a recent SNH benthic analysis 2015 survey. It seems equally bizarre that investigators choose a survey transect that completely missed aggregations of high priority species. The presence of these protected species and habitats will be submitted to the current SNH consultation on Priority Marine Features. With respect to the precautionary principle, the SSSI and surrounding waters should be considered for an emergency MPA protection order until the nature and true extent of PMFs is realised.
4.28 The community find it hard to believe that someone at SNH did not have knowledge about these protected features. The discovery and presence of these features constitutes a material change in circumstances since the original opinion. It is highly likely that SNH would have offered a completely different screening opinion if they were disclosed at the relevant planning stage. We informed SNH about the presence of native oysters and potential bio-risk from the pacific oyster farm but SNH officers failed to properly address concerns and missed these important reefs:
- 2013 SSSI Site Management Plan update.
- 2015 Benthic analysis survey.
- 2017 Pacific oyster farm inspection.
- 2017 Site visit to inspect coal terminal pollution.
- Any SNH site visit in connection with this development.
- Enviro Centre have also failed to report these features during eelgrass/mussel survey and site during any site visits.
4.29 During a recent site visit we showed the priority features, highlighting the potential environmental impacts to the SNH Area Officer and Chairperson of CMPP. We were informed that the SNH officer, who offered the screening opinion, is involved with Enterprise Development Agency. He is, therefore, perceived by us to have a conflict of interest that is weighted towards facilitating commercial developments through and over environmental legislation. We also noted his expertise in terrestrial ecology, despite apparently lacking rudimentary marine ecology skills or understanding of sediment dynamics.
Mitigation proposals used as a surrogate for EIA
5.0 The Developers and Competent Authorities Scoping, ‘Clarification’ and Screening opinions make reference and relate to an old project proposal. These screening opinions were agreed, clarified and accepted before the true extent of the larger Oil Rig Project (17/01273/PP) and operational purpose of the pier development (18/00134/PP) was known or could be reasonably contemplated. This constitutes a material change from the original screening process and EIA screening decision must be reconsidered.
5.1 Referring to the pier development (18/00134/PP),
- The Developer states: The same proposed development (the refurbishment of existing quay and associated dredging) was screened jointly by Marine Scotland and North Ayrshire Council under the same EIA regulations and considered not to be an EIA development.
5.2 Many inconsistencies and errors have been noted in the scoping and screening process for the Hunterston project. For instance, the developers have presented an out of date scoping opinion created for an older development and have pursued this as their basis to acquire beneficial ‘negative’ screening opinions at future dates. They are also referencing a singular EIA screening opinion from a smaller pier development, to endorse their environmental appraisal process, and to negate the requirements for an EIA across the whole decommissioning Project at Hunterston.
5.3 The Ecologistas en Accion-CODA case demonstrates that the Courts take a robust approach and that the entire purpose of the EIA Directive would be frustrated if local planning authorities could circumvent their obligations by simply artificially dividing up projects that have significant effects on the environment. It is therefore questionable whether the strategy used by the Developers to ‘paper chase’ favourable opinions is in accordance with the purpose of the EIA Directives.
5.4 It is clear from the Developer’s scoping requests are not only scoping for a favourable EIA decision, but also for the terms and conditions designed to mitigate impacts and repeatedly presenting this as an alternative to EIA. The Competent Authorities may be avoiding care or proper judgment to ensure that conditions designed to mitigate the likely effects of a project are not used as a substitute for an EIA or to circumvent the requirements of the EIA Directive. This strategy is evident in several planning documents.
5.5 Parallels with the Hunterston Project can also be drawn with Regina oao Lebus v South Cambridgeshire DC  EWHC 2009 where mitigation measures were being offered to frustrate the purpose of the of the EIA directive and then serve as a surrogate for it.
In Lebus case, the planning officer took the view, after meetings and discussions, that it was not an EIA development and the applicant was told informally that an EIA would not be required. The planning case officer made no written record of his conclusions. At the planning meeting the officers concluded that adverse impacts of the development would be insignificant with proper conditions under planning obligations. The application was challenged and planning permission was quashed.
5.6 So far as planning conditions and EIA the courts have stated, “it is not appropriate for a person charged with making a screening decision to start from the premise that although there may be significant impacts, these can be reduced to insignificance by the application of conditions of various kinds”.
Marine Spatial Planning
6.0 The community have previously corresponded with the Clyde Marine Planning Partnership that the Southannan SSSI is under represented in the Clyde Marine Region Assessment. It is one of the largest SSSI on the Clyde fails to appear on the Protected Areas Topic Sheet map. The site entry for it states that there is “No site condition” and that it’s “Within area zoned for industrial development around Hunterston”. We accept that the graphical omission is an oversight but would like the text entry changed to highlight the fact that the SSSI is out with any industrial zone and industrial land reclamation has actually encroached on the SSSI reducing its area by up to 40%.
6.1 The Clyde Marine Assessment is meant to offer the most current assessment of the condition of Clyde Marine Area. The Community cannot comprehend how an environmental screening opinion can be made on a ‘hunch’ when there is a lack of knowledge about the site and no comprehensive site visit was made to inform the decision or for the updated SSSI Site Management Statement. You could reasonably conclude that without the necessary environmental information it is impossible to offer a screening opinion, further strengthening the argument to review this decision.
6.2 Our community has made previous representation to CMPP about the transparency and openness of decision-making process and how this has affected marine planning issues around Fairlie and Hunterston. We understand the benefits and appreciate the value of MSP but are disappointed that our community’s concerns about Hunterston issues are not properly or systematically represented within the marine spatial planning framework. If this development proceeds without mandatory EIA it will reflect an inadequacy of marine spatial planning.
6.3 Peelports and North Ayrshire Council are members of the CMPP and meet regularly with other members to discuss marine planning issues and progress the Clyde Marine Plan. North Ayrshire Council have an agenda to advance their Local Development Plan that is often contrary to Community wishes. We believe Peelports have adopted a ‘systems gaming’ strategy to advance their Hunterston PARC proposals while avoiding environmental scrutiny from other CMPP board members.
6.4 Both Peelports and NAC have had many opportunities to inform CMPP members of the true state of the terrestrial and particularly marine planning applications for the Hunterston PARC project. This information has been withheld from other members, undermining the CMPP responsibility as Statutory Consultees for marine planning on the Clyde. We believe there may have been a massive conflict of interests when the board, including Peelports and NAC, discussed whether to provide screening opinions or make marine planning decisions before the Clyde Marine Plan is fully adopted. It was decided they would avoid making these decisions unless there was ‘exceptional circumstances’. I hope that both Peelports and NAC abstained from this decision in light of their concurrent omission to inform board members about marine screening, planning and licensing proposals that were effecting.
6.5 In fact it was our community that informed the Chair of CMPP that they were meant to be informed and consulted for the statutory marine pre consultation. The event was presumably rescheduled to fulfil this ‘legal’ obligation. We argue that if this holds true for a statutory pre consultation it is equally relevant to the original EIA screening process and CMPP should be afforded the opportunity to present a screening opinion and for other board members to examine the potential for ‘significant environmental impact’.
6.6 It has become clear to the Community that the SNH Case Officer who provided the original screening decisions has a conflict of interest with regards to Hunterston planning issues as he is involved in progressing sustainable economic development proposals and ‘greasing’ the Hunterston Project wheels through environmental legislation.
6.7 Our community made an application for membership to the CMPP but was rejected and believe it is a matter of public interest whether Peelports, NAC and SNH participated in the closed discussions and meeting vote. Our community relies on the appreciated good will of CMPP staff to carry forward and examine our concerns. We do understand the necessity and value of Marine Spatial Planning but deeply concerned about our lack of representation within this planning framework. This concern is compounded by the fact that some current members are perceived to have undeclared conflict of interests, insufficient knowledge, are non Clyde area residents and will become increasingly more involved in making decisions that are wholly contrary to the ambitions of our coastal community.
NAC Response to Councillors Supplementary Questions
7.0 NAC have stated in response to a North Coast NAC Councillors Supplementary Questions that “there is no requirement for Planning Officers to consult with external bodies as part of the (screening) process”.
7.1 NAC have stated in response to a North Coast NAC Councillors Supplementary Questions that “Officers adopt a screening opinion based on the information supplied by the applicant”.
7.2 NAC have stated in response to a North Coast NAC Councillors Supplementary Questions that “NAC approached SNH to ascertain if they had any comments on the screening opinion and said that “SNH did not respond to this consultation”.
7.3 NAC have stated in response to a North Coast NAC Councillors Supplementary Questions that “Marine Scotland as part of screening for their assessment as to whether an EIA is required for their purposes, did consult with SNH and it is that letter that cannot be located”. NAC continue by stating “A letter from SNH to Marine Scotland on the subject of the Marine Scotland assessment for requirement for an EIA has no relevance in the assessment whether North Ayrshire Council require an EIA as part of the Planning Act.”
Time Barred Review
8.0 In a letter from a Scot Gov Policy Officer we were advised that in terms of planning applications, planning consent was issued by NAC on 25/04/18 and Scottish Ministers have no remit to call them in, or make a screening direction, nor can they comment on the authorities handling of the case.
8.1 However, there have been considerable time delay and restrictions imposed on us when gathering important information. These include but not limited to:
- 20 days for MS to reply to a FOI EIR request
- 40 days for SNH to reply to a FOI EIR request
- 6 weeks wait for response to Cllr Ian Murdoch’s Supplementary Questions to NAC.
8.2 These requests have been delayed by the various respondents for as long as possible, totalling a minimum of 102 days (over 3 months). This has severely restricted our ability to be properly informed. We would like you to note that critical documents that we were hoping would clarify our concerns are still being withheld under regulation 10(4)(d) and, contrary to FOI rules, our document request to SNH is still not being properly fulfilled. We have also been told from SNH (email dated 01/03/18) that critical documents pertaining to screening process cannot be found and have also been lost by NAC.
8.3 I hope you understand that these delays have limited the time available to us to inform a coherent response to the screening process and subjugated planning applications as a whole. In this case it is clear that authorities have overtly manipulated time periods to their advantage in an attempt to avoid review and/or legal challenge. As such we would hope that any Action Officer examining this request for a mandatory EIA will use their discretion, consider and make careful examination of this case.
Developer: Peelports, Clyde Operations Ltd, Clyde Port Harbour Authority, Cesscon Decom, Enviro Centre Ltd, Arch Henderson.
Local Authority: North Ayrshire Council (NAC) Planning Department.
Marine Planners: Marine Scotland License Operations Team (MSLOT).
Marine Planning Partnership: Clyde Marine Planning Partnership (CMPP).
Community: Fairlie Coastal, Clyde Porpoise CIC, 3200+ Signatories
EIA Directive: EU EIA Directive and transpositions to Town and Country Planning and Marine Works EIA Regulations.
Project: Hunterston PARC development, Marine Structure Decommissioning, Hammerhead Quay Construction, Caisson Gate Construction, Dredging.
Fairlie Coastal believe that the irrational approach the Developers and Planning Authorities have and continue to take in relation to the scoping, screening, planning and consenting processes constitutes an ongoing and manifest breach of the EIA Directive. This approach is contrary to the stern commitment from Government to uphold and correctly transpose European Law. This strategy is already having a significant environmental impact, fragmenting and polluting the nationally protected SSSI while threatening OSPAR listed habitats and European Protected Species. Public Bodies and Planning Officers are failing their legislative duty to further the conservation of biodiversity through institutional failure to properly affect the environmental screening procdures. This is being exacerbated by pursuing a paper chased mitigation strategy which is being used purposively as a surrogate and to circumvent the EIA Directive and transposed legislation.
(1) There has been a failure to apply ‘Wide Scope and Broad Purpose’ when considering Schedule 1 Paragraph 8(b) EIA Directive project descriptions.
(2) There has been additional failure to apply Schedule 2 EIA project descriptions.
(3) The planning procedure has been purposively subdivided (salami-sliced) to avoid application of the EIA Directive. This restrictive process using delegated powers further deprive the community the opportunity to challenge decisions.
(4) Demolition works must be considered under EIA Directive and recent paper-chased and catch up screening procedures have been used to breach the purpose of the EIA Directive with planners making it up as they go along.
(5) The developer and all authorities (NAC, SNH, SEPA, MS) have failed to fully identify the scale of environmental impacts during the EIA scoping and screening process.
(6) The desk-top environmental appraisal process and inadequate site visits have failed to identify OSPAR listed Priority Marine Features that are currently impacted by developers pollution and under significant environmental risk from further development.
(7) The ‘negative’ screening opinion is contrary to the SNH Site Management Plan that acknowledges the risk of significant environmental impact from further coastal development.
(8) Mitigation proposal during screening procedures were used to frustrate the purpose of the EIA, and serve as surrogate for it. It is contrary to directive to start from premise that although there may be significant impacts, that these can be reduced to insignificance by the application of various conditions.
(9) The SSSI is misrepresented in the CMPP Clyde Assessment and within the marine spatial planning framework. The site is at risk of further fragmentation and being de-notified as the Clyde Marine Plan progresses despite community efforts to highlight issues.
(10) Statutory Consultees CMPP were not informed of screening / planning / license procedures by fellow board member. This avoided environmental scrutiny and prevented CMPP of performing their Statutory function to screen for marine related EIA. This is contrary to ecosystems approach, the ethos that underpins Clyde 2020 Vision and contrary to the function of the marine planning that Ministerial Direction CMPP was granted to effect.
(11) Peelports have exerted an overt influence over the terrestrial and marine planning procedure. This conflict of interest extends to membership of CMPP and relations to Clyde Harbour Authority.
(12) The SNH screening opinion was made without site examination, realisation of environmental impacts, knowledge of marine ecosystems, and relied on the developer’s desk-top environmental appraisal. SNH’s failure to attend to environmental concerns, during the local authorities subjugated planning process, has led to an increase in environmental risk.
(13) There has been manifest and material changes in the development proposal and environmental appraisal since original screening opinion and must be re-considered under Schedule 2 Paragraph 13 (a/b) EIA.
(14) The subjection of Terrestrial and Marine Planning legislation has exacerbated the negative planning issues in developments concerning Integrated Coast Zone Management. Procedural idiosyncrasies between Terrestrial and Marine Planning are being exploited by developers and local authority to circumvent the EIA Directive.
(15) The Petroleum Act EIA legislation is being incorrectly offered by NAC local authority and planning committee as a surrogate for a mandatory Schedule 1 EIA that would otherwise examine decommissioning, construction and operations at the Hunterston decommissioning port
(16) There has been a lack of openness and transparency during whole Hunterston Project process. This has frustrated the communities ability to adequately challenge aspects of planning process and leading to possible time barr on review or ministerial appeal.