Able UK's contract to dismantle 13 obsolete US military ships on Teesside precipitated a bitter campaign by community and environmental groups last year. The media spotlight intensified while the vessels were mid-Atlantic, with Ministers proving powerless to prevent the first four ships arriving in Able's Hartlepool yard, despite the fact that it lacked the necessary regulatory consents (ENDS Report 346, pp 28-30 ).
Two High Court judgements last December left Able with little alternative but to start work on fresh applications for planning consent and a waste management licence relating to its ship recycling facility. A full environmental assessment will also be required. Meanwhile, four ships remain in Hartlepool awaiting their fate.
To unravel the complex regulatory and procedural background to the affair, Ministers requested reviews from both the Environment Agency and the Environment Department (DEFRA). Both were published in May.
The Agency's review maintains that the transport of the ships did not pose a threat to the environment or human health. It says that 95% of the vessels by weight consists of metals destined for recovery, and all of the major PCB-containing items were removed in the US.
The quantities of asbestos and PCBs that would be produced by recycling the vessels in the UK are "very small" compared with the 400,000 tonnes of asbestos and 2,000 tonnes of PCBs disposed of annually in the UK, the Agency points out. Able UK put the PCB content remaining in the 13 vessels at 35kg.
The transfrontier shipment legislation gives the Agency only 30 days to approve or refuse a TFS request. In its review, the Agency says that in granting consent it "agreed that the ships were destined for genuine recovery and that the receiving facility had the technical capacity to undertake the recovery."
In fact, officers knew that the site's waste management licence did not authorise the dismantling of ships and that it contained a limit on the tonnage of metals to be handled which would prevent receipt of the US vessels. They considered that an appropriate licence modification could be carried out in time for the arrival of the vessels.
The Agency went ahead and modified the site licence. However, following legal action by Friends of the Earth, the Agency received counsel's advice that the modified licence was invalid - a view later confirmed by the High Court.
There were also legal difficulties surrounding Able's planning consents which the Agency appears to have been unaware of at the time it issued the TFS consent. The company needed planning consent for both the decommissioning of the ships and for the construction of a bund to permit dry dock working. Able claimed that existing consents already permitted these activities, but Hartlepool Borough Council eventually disagreed that the consent for the bund was extant. The High Court later ruled that there was no consent in place for ship dismantling.
DEFRA's review reveals that the Agency did not check with Hartlepool Borough Council to see if the necessary planning consents were in place. Within a month of the TFS consent being granted, the Agency heard from Hartlepool that there might be some debate about the current validity of the planning consent.
"The EA does not regard it as part of its function to ensure that all necessary authorisations are in place," according to the DEFRA review. "That responsibility rests with the applicant. It [the Agency] checked its own authorisations but did not seek confirmation from other regulators that they were satisfied that their consents were in place and valid."
DEFRA's paper argues that it would be a "substantial administrative burden" if the Agency were required to check that all authorisations were in place for all routine waste shipments. But it calls for "some further process" to be applied in the case of ships. "Such movements will always be comparatively few in number and dismantling ships for recovery is always likely to need facilities that require a wide range of authorisations."
The paper calls on the Agency to convene a joint review by all relevant regulators of what is required before any formal notification of a proposed movement is made. The review, led by the Agency, would take place at the pre-notification stage.
If such a review exposed gaps and the notifier nevertheless pressed ahead with a notification, the Agency would be entitled to withhold TFS consent on the grounds that the shipment was not in accordance with national laws and regulations.
In contrast, the Agency is sticking to its position that it is for the applicant to ensure that all necessary consents are in place. The Agency's review recommends that in future the TFS notifier be made aware that they are responsible for ensuring that all necessary permissions are in place. "The Agency should consider whether a letter of assurance from the consignee to that effect could form a useful part of the application process."
The Agency's paper also recognises that collective discussions with the notifier and other regulators would be helpful in "potentially novel, complex or contentious cases." "However, final responsibility must rest with the notifier."
DEFRA's review draws similar conclusions. The decision to grant TFS consent was not raised at the regular bilateral meetings between the Agency's chiefs and the Minister, and there was no contingent communications strategy in place.
By the time the Agency sought political support from DEFRA, all four ships were well into the Atlantic, and the US position had become entrenched.
DEFRA's review also criticises the Agency for failing to state more clearly to MARAD last October that the shipment should not take place. The Agency's email merely stated that MARAD "may wish to consider the timing of the departure of the vessels."
DEFRA's review notes that the costs of ship recycling are considerably higher in OECD countries, and that most old ships are currently recycled in non-OECD states. The parties to the Basel Convention on waste shipments do not represent a majority of registered ships, it adds.
The paper calls on the Government to support efforts to agree a way forward through a partnership between the Basel Convention and the International Maritime Organisation so as to give flag and port states responsibility for delivering recovery in an environmentally sound manner.
The UK might stand a better chance of competing with recyclers in Asia and China, says the review, if there was a firm Government statement of support for the development of a ship recovery capability in the UK, and the Government were to require all vessels within its control to be scrapped within the UK.
The review also calls for the Government to include a statement on ship recycling in its forthcoming revision of the PPG10 planning guidance on waste management.