Incinerator campaign seeks justice by going to Court of Appeal

AND THE FIGHT GOES ON: The legal battle against the Viridor-operated waste incinerator to be built at Beddington took another step this week when the Stop the Incinerator Campaign lodged permission to appeal.

yes we khan franklin fontThe legal campaign is being conducted with new solicitors who specialise in environment law, but the need to raise cash to feed the court system’s voracious appetite for money continues.

The Stop the Incinerator Campaign had their arguments rejected at the Judicial Review stage earlier this month. Now the grounds for appealing lie in the judge’s approach to the waste policies governing the use of the Beddington site and the assessment of whether very special circumstances exist to justify the harm caused by the proposed development. The Court of Appeal will decide whether to grant permission to appeal, a process which will most likely take several weeks.

“I met with residents, conservationists and the Beddington Farmlands Bird Group on Tuesday,” said Shasha Khan, the Green Party activist who has been a leading figure in the legal battle.

“Those present encouraged me to fight on and apply directly to the Court of Appeal. It was something I was actually quite keen to do.”

Khan and the campaigners have taken the conduct of their case to Richard Buxton Environmental and Public Law, as the previous legal firm handling the case because of tight deadlines for submissions. “Naturally, to continue, funds are needed to keep the fight going, and I hope I can count on supporters to donate to the campaign once again,” Khan said.

Sue Willman, the solicitor who had previously represented Khan and the campaign, said that, “This case proves that there is no level playing field for access to justice in environmental cases.” At the Judicial Review, the campaigners were taking on the expensively hired QCs paid by Viridor and, using Council Tax-payers’ money, Sutton Council, the local planning authority.

“It has been a difficult journey to get to this stage but the issues at stake warrant the continued efforts,” Adrienne Copithorne, a partner at Richard Buxton, said. “We admire Mr Khan’s tenacity and that of his supporters.”

Meanwhile, the Labour group which controls Croydon Council and which campaigned for five years to oppose the incinerator, remains silent on the issue and has taken no action to halt the development.

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3 Responses to Incinerator campaign seeks justice by going to Court of Appeal

  1. mraemiller says:

    In other news the House of Commons are debating “reviewing” Judicial Review today.

  2. There’s been a lot of judgements coming down recently….perhaps people will forgive me quoting extensively from one in 2009,that may even seem irrelevant. What’s Corby got to do with Beddington?

    Through Corby drove convoys of ill-protected loads of contaminated mud from the demolition of the Corby Steel Works…a number of children were born with limb deformities (we know little of the other ill-health that would have resulted locally).Their parents took Corby Borough Council to court.

    THROUGH LOCAL ROADS will be coming convoys of lorries carrying loads of exceedingly toxic FLY ASH. How is the safety of these loads to be guaranteed? Will they have HAZMAT warnings on them. What will the accidental spillage procedures be? Who will be responsible for damages, in the legal sense?

    The illustrations,below, is of levels of metals due to be coming from the Beddington chimneys (Viridor’s numbers) and of nanoparticles in the lungs.

    This is some of what Justice AKENHEAD had to say

    “· Dr Flaks, correctly in my
    judgement, identified PAHs, dioxins and heavy metals as the likely teratogens.
    The former were present at the BSC site largely as a consequence of the coke
    making processes used on the site over many years whilst the latter were the by
    products of the iron and steel making process. Also, dioxins and furans (PCCDs
    and PCDDs) were produced in the electric arc furnace process as well as in the
    sintering process. Dioxins and furans accumulate in the body and are only very
    slowly eliminated.

    So far as dioxins are concerned, Dr Flaks commented,
    based on papers and research, that it should have been obvious that the BSC
    site would be contaminated with dioxins when it closed, it being inevitable
    that dioxins would have been produced during the steel works operation (in
    particular the sintering plant); dioxins were and are known to be extremely
    stable in the soil. Decommissioning should have taken this into account so that
    any patches of heavily contaminated soil could have been identified and
    disposed of by incineration. The toxic characteristics of dioxins had been
    widely published since the 1970s and the technology for analysis and disposal
    was readily available in the early 1980s when remediation work at Corby was
    proposed. The toxic characteristics of dioxins include damage to human health
    (and potential damage to the embryo). I accept this evidence; it is logical and
    backed up by numerous papers and research.

    Dr Flaks was of the view, which I accept, that embryos
    and foetuses are much more sensitive to toxic chemicals than adults. The dosage
    of a teratogen required to induce birth defects can be much lower than that
    which would be required to cause toxic effects in adults and, although its
    teratogenic effects may be the result of induction by high doses, they may also
    be induced by low level exposures.

    During the period from conception until implantation,
    insults to the embryo are likely to result either in its death and miscarriage
    or resorption, or in its intact survival. At this stage, the embryo is able to
    repair itself by multiplication of its undifferentiated cells. The embryonic
    period, from 18 to 54-60 days after conception, is the period when the organs
    are developing and is the period of maximum sensitivity to teratogenesis, since
    tissue damage becomes irreparable. The foetal phase, from the end of the
    embryonic stage to birth is the period when growth and maturation of previously
    formed organs takes place, and exposure to teratogens is likely to affect
    foetal growth, or the size or function of a specific organ, rather than to
    cause gross structural defects. Human teratogenicity is indicated by a
    recognizable pattern of anomalies, a statistically higher prevalence of a
    particular anomaly in patients exposed to an agent (which is an epidemiological
    facet), the presence of the agent during the stage of development of the
    affected organ, a lower incidence of the defect in the population prior to the
    introduction of the agent, and production of birth defects in experimental
    animals by the agent.

    To induce a teratogenic effect, teratogenic substances
    must be administered during organogenesis, the period of embryological
    differentiation. The critical period of organogenesis in humans is 20-55 days
    (or 35-70 days after the last menstrual period). The nature and incidence of
    effects are dependent on the particular developmental stage when exposure
    occurs. During embryonic differentiation or organogenesis, the embryo is highly
    susceptible to teratogenic insult. Following differentiation, the foetus
    becomes progressively less susceptible to teratogenic stimuli, although
    increasing the dosage may or extend the period of susceptibility.

    Most known teratogens have been identified through
    experimental animal studies. It is of course not ethical for any teratogenic
    tests to be done on pregnant mothers let alone on embryos and foetuses. A
    problem with this is that there is no exact or mathematical correlation between
    what will affect a mouse foetus and a human foetus. Only about 19 drugs or
    groups of drugs and three other chemicals (methyl mercury, toluene and
    polychlorinated biphenyls) have been established as teratogenic agents in
    humans (by clusters of abnormalities being observed by physicians) whereas
    about 1,500 teratogens have been identified in laboratory animals (mainly by
    laboratory testing).

    A teratogenic response depends upon the administration
    of a specific treatment of a particular dose to a genetically susceptible
    species when the embryos are in a susceptible stage of development.
    Susceptibility to teratogenesis by a particular chemical depends on differences
    between species and between strains within a species. Variables determining
    strain susceptibility include maternal parity and weight, foetal weight, number
    of young, size of the placenta, foetal and maternal production of hormones, and
    maternal utilization of vitamins and other essential nutrients. This is
    modified by environmental factors, such as diet, season and temperature.

    · Dr Flaks’ view, which I
    accept, is that the most likely teratogenic agents are Dioxins, PAHs and
    particular heavy metals, namely CHROMIUM, NICKEL and CADMIUM and respective
    compounds of these metals. It is at least theoretically possible that other
    agents might also be active. This does not exclude other agents that might have
    been present Dr Flaks could not identify what was likely to be the effective
    dosage of any one of these agents for human teratogenesis because the
    information does not exist. Further, the precise mechanism whereby any of these
    teratogens act is largely unknown. Toxicological coupled with epidemiological
    evidence can provide useful evidence as to the cause of birth defects.

    Air Pollution and Safety Risk Management

    Since the primary case made by the Claimants is that the
    birth defects were caused by the inhalation by the Claimants’ mothers during
    pregnancy of air borne contaminant bearing dusts, the evidence from the experts
    in the area of air pollution is important to determine how and in what
    circumstances dusts from the site could or would reach the mothers.

    · Dr Cox MBE, the expert in
    this field for the Claimants, secured his PhD in air pollution predictive
    modelling from Imperial College, London in 1975 and, as a chartered mechanical
    Consulting Engineer, has spent much of his professional career in risk analysis
    as well as risk management. He has had to address the dispersion and release of
    gases and the impact of biocidal products and for 10 years he served on the
    Health and Safety Executive’s Advisory Committee on Dangerous Substances. He
    “spotted” a serious error in published papers by Ove Arup and IEA
    upon which Ms Heasman and Dr Searle had relied relating to the distance which
    small particles (under 10 microns) may travel. This had not been picked up
    either by Ms Heasman and Dr Searl; Ms Heasman ultimately accepted the error. He
    gave his evidence in a relaxed and self deprecating way and did not seek ever
    to exaggerate his views.

    Before reviewing this area of the case, it is necessary
    to make findings at least broadly as to what levels of contaminated dust were
    likely to be present, where and in what quantities. In my judgement, there was
    a virtually constant generation of contaminated mud and dust from and including
    1985 onwards to at least June 1997. There was almost constant work over this
    period by CBC and its contractors, but, even when there were slacker periods,
    dust would still have been released from the CBC sites or some of them,
    particularly Deene Quarry. Substantial quantities of contaminated material were
    carried on and on to the public roads mostly with unsheeted lorries. The main
    roads on which they were carried were Gretton Road, Gretton Brook Road, Phoenix
    Parkway, Steel Road, Shelton Road, Geddington Road and Weldon Road. It is clear
    and I find that the sweeping of the roads was inadequate and often not done to
    all. Once deposited on the roads, the mud and dust would inevitably be spread
    even further around the roads and the town by other vehicles passing over it.
    There is every reason to conclude in addition that dust was generated in drying
    and drier weather off the sites during demolition, excavation, transporting,
    depositing and grading and levelling operations involving the substantial
    quantities of contaminated materials. In similar conditions, where slurries had
    been exposed to the air (as on Willowbrook North A) or spread and deposited on
    the surface (as when Toxic Ponds 3and 4 were deposited in the north-east corner
    of Deene Quarry) there would be contaminated dust generated from those sites.
    It would be facile to believe or expect as a matter of fact that at any one
    material time during this overall period there was only one precise point
    source of contaminated dust being generated.

    · As Dr Cox said, not only
    would vehicles carry material some distance, it would either come off because
    it was blown off the back or by way of being dropped off the wheels or
    undercarriage; if the material was wet, it could also spill over at the edges
    of the lorry. Any material dropped onto the ground including the roads or
    pavements could then be re-mobilised either by wind or by passing vehicles.

    One needs to bring
    together the findings overall, There was a statistically significant cluster of
    birth defects between 1989 and 1999. Toxicologically there were present on and
    from the CBC sites over the whole period from 1985 (and possibly before) until
    1997 the types of contaminants which could cause the birth defects complained
    of by the Claimants. There was an extended period between 1983 and August 1997
    in which CBC was extensively negligent in its control and management of the
    sites which they acquired from BSC and otherwise used. That negligence and, as
    from 1 April 1992, breach of statutory duty on the part of CBC permitted and
    led to the extensive dispersal of contaminated mud and dust over public areas
    of Corby and into and over private homes with the result that the contaminants
    could realistically have caused the types of birth defects of which complaint
    has been made by the Claimants (save in limited respects). It can not however
    be demonstrated that after August 1997 the birth defects in children conceived
    thereafter could be caused by any breaches of duty or public nuisance occurring
    before that time; there can have been no significant emissions of the relevant
    contaminants after that time which could have caused birth defects of the types
    with which this case is concerned. CBC is liable in public nuisance, negligence
    and breach of statutory duty, obviously subject to it being established in
    later proceedings by individual Claimants that their particular conditions were
    actually caused by the defaults identified in this judgement.”

    I must be frank.I have very little trust that either the councils (particularly Sutton) that make up the SLWP or Viridor will do the relevant monitoring with sufficient rigour and transparency. You would not believe how diluted the regimes have become, since the “cutting of red tape” in EU legislation. How will you know?

  3. Sorry but the links are wrong…
    The Corby Case (Erin Brokowitcz)

    Implications for industry

    Paula Jefferson, head of Beachcroft LLP’s Disease Group, said: “Any organisation involved in any activity in the future, where there is the potential for release of harmful substances in to the atmosphere, should ensure that they have taken all necessary steps to identify the potential contamination and to then ensure that they either employ, or have themselves the necessary skills, to deal with that contamination. The principles in the judgment apply not just when there is demolition in progress, but to any activity where there is potential for exposure in to the atmosphere. Where there is any known potential for such exposure, then regard should be had to not just the onsite workforce but also to those living and working in the surrounding area. In the Corby case the area of risk was 4km from the demolition site. The area for potential exposure will clearly vary depending on the circumstances of each case. In essence, the message remains the same – proper risk assessment is key and must include identifying the appropriate people to do the job and not cutting corners, which, as has been proved for Corby Borough Council, is likely to be false economy.”[29]
    The Full Judgement transcript:
    ” Dr Flaks’ view, which I
    accept, is that the most likely teratogenic agents are Dioxins, PAHs and
    particular heavy metals, namely CHROMIUM, NICKEL and CADMIUM and respective
    compounds of these metals”.
    Viridors own modelled numbers put these metals in the red LARGE IMPACT RANGE together with Arsenic,a known powerful carcinogen.

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