Re: Decision V/9n concerning compliance by the United Kingdom

Re: Decision V.9n  concerning compliance by the United Kingdom – invitation to comment on Party concerned’s second progress report:

Comments are the result of research and dialogues, not only with professionals, but many at the grass roots of society both here and abroad who are now experiencing what it is like to live with the results of imposed energy policies. Having experienced the professionalism and humanity shown by the Committee during their handling of my complaint ACCC/C/2012/68  and subsequent ratification of their decision, I should like to join others in voicing appreciation of the work undertaken in all aspects of the subjects in hand by Committee members. 

My comments on the second progress report from the UK on Decision V/9n and the position of the UK on matters of energy policy involving articles of the Aarhus Convention and wind power can be downloaded hereComment on the 2nd. progress report from the UK on Decision V.9n. Final (1)

Mrs. V (Christine) K. Metcalfe.

The main points include

  1. On Access to Justice and the important issue of judicial reviews I comment as follows:

a.    I will not be alone in finding grounds for grave concerns over plans to curtail judicial reviews as outlined……….

b. If implemented the UK would be inviting further and justified complaints to the ACCC from UK citizens adversely affected by such curtailments.

c. As the UK (and Ireland’s) common law system has been allowed to develop into a bad and challengeable cost basis, it should perhaps be remembered that the Compliance Committee can tire of non-compliance or delaying tactics as they have with those of the EU………

d. Judicial reviews are ‘part and parcel’ of the public participation process so it follows that having being found non-compliant with Article 7 before (as in ACCC/C/2012/68) it makes little sense to risk a repeat ruling………….

e. The Judiciary have an obligation to be efficient and productive, just like everybody else in society…….. See

f. The destruction of Scottish Power by Euan Mearns . is a guide to the current situation being faced in the UK (and Ireland as another member State).  It reinforces the widely held view that many planning deals have been agreed long before they go to planning, which reduces the likelihood of any being ultimately refused.   That this is ‘par for the course’ can be shown by examining page 17 of : http://westcorkwind.com/images/Adobe/EPAW_N-S.pdf  of interest to the Committee will also be p.74  8.2  covering ‘How the EU’s Renewable Targets won’t be met, particularly by the UK.’

2. .The problems being faced by UK citizens, and especially those residing in Scotland when looking at the overall picture of Aarhus Compliance, is that whilst public participation takes place to a degree via consultations and Freedom of Information requests, the results and suggestions made are rarely taken up. Essentially public participation exercises become a ‘box ticking’ method of compliance and little if anything, improves. FoI requests can be lengthy and time consuming with Government agencies and departments often taking way beyond the time allocated for replies. A prime example of this has been the dialogue held with the CAA over Air traffic Safety involving wind turbines radar and turbulence issues. The questions related to the FoI are yet to be answered despite numerous assurances since October 2015 that a reply will be sent. That response is here  Freedom of Information Act request F0002371.with questions demonstrating the seriousness of this little appreciated aspect.

Replies received are often seriously redacted using ‘business confidentiality’ or ‘intellectual property rights’ to avoid giving the information required. Examples rendering the information provided almost useless are attached as ‘Screggagh_Report_Redacted – ’ (a turbine collapse incident for which more information and reports are available upon request) and ‘Sneddon Law windfarm, Annex A– FOI2015 2654pdf.

Other examples relevant to public participation difficulties occur. One such being the refusal of Scottish Water to provide a report requested under FoI regulations by the Non Government Organisation the John Muir Trust (JMT) relating to a water pollution incident in North Lanarkshire. It is not unreasonable that the JMT feel that 7 months is long enough to wait for an outcome of this request. These environmental problems are occurring and the public are essentially powerless, despite apparently having protective legislation in place.

As in the SW refusal: ”In this case the public interest in making the information available is outweighed by that in maintaining the exception.”

It is abundantly clear however, that there can be no better example of where the public interest is better served than publishing information on a pollution incident that affected many people’s drinking water.

In respect of water contamination and wind power developments, the experience at the Whitelee wind farm development outside Glasgow airport in Argyll Scotland should be outlined due once again, to its importance and relevance not only to articles of the Convention but breaches of EU water Directives.

Scottish Power Renewables (SPR) monitored private water supplies for 7 years and were fully aware of contamination and yet did not comply with planning conditions (for the Whitelee Extension) to notify the local authority, or local residents at any time. ……………………………………………..

During the height of Whitelee windfarm construction in 2008, the degree of bacterial contamination in untreated drinking water reliant on the Whitelee windfarm water catchment area was recorded up to 730,000 coliforms/100ml in 2008 (UK and WHO standard = 0) This was considerably worse than drinking untreated drinking water from the Limpopo river in Mozambique in 2004, which at its worst was 870/100ml. (Challenges Facing Drinking Water Production In Mozambique- A Review Of Critical Factors Affecting Treatment Possibilities Matsinhe N. P et al Submitted for publication in the Journal Water Science and Technology). (WHO recognise Mozambique as a third world country with very limited availability of treated public water)In 2015, untreated private water supplies were supplying over 3% of Scotland’s population with an estimated 150,000 PWS, mostly in rural Scotland (Scottish Government Figures 2015) In contrast to the untreated water in Mozambique, over the course of windfarm construction at Whitelee, 2006 to 2013, monitored PWS regularly had bacterial contamination running into the thousands. These PWS, like most PWS in Scotland, had previously shown only intermittent low level contamination.

……………………………………………….

Scottish water (SW) was contracted by SPR to monitor the PWS and provide accredited results. SW was therefore fully aware of the dangerous, contamination levels found in these test results. When contacted, SW’s response about the failure to disclose this public health information, (Prof. Simon Parsons, Customer liaison and services development manager) was that their duty was to protect commercial client confidentiality. This was surely a conflict of interest with the prospect of profit out weighing public health concerns. SW did not/would not, even notify in confidence, the local Consultant in Public Health (CPHM) so that the Local Authority could independently confirm results and allow private consumers to take simple measures like boiling water or drinking bottled water.

To compound this, Scottish Water regularly failed to meet standards for public potable water from the Amlaird water treatment works, because of the deteriorating quality of raw water from the two public reservoirs on the Whitelee Windfarm site. (Monitoring data over this period has been obtained from SW and SPR from relating to surface, groundwater and public reservoir raw water and potable water monitoring data.) DIRECTIVE 2004/35/CE ‘Request for Action’ submitted to the Scottish Government and being ‘reviewed by SEPA shows water test results from other water treatment works, demonstrating that this is a growing problem recurring at other reservoirs on SW land associated with windfarm development. Groundwater monitoring at Whitelee windfarm also demonstrated EU list 1 pollutants appearing in groundwater over 400 times the allowable drinking water levels, as well as increase in minerals (iron, manganese and aluminium) more than 20 times over baseline and well above allowable statutory levels in drinking water.

Surface water monitoring at Whitelee also demonstrated a documented deterioration from monitoring conducted both by Glasgow and Edinburgh Universities and by SEPA (Scottish Environment Protection Agency)over seven years , such that contrary to requirements of the Water Framework Directive(WFD),( EU Water Framework Directive(2000/60/EC, Article 7 (7)) there was a deterioration of the overall status of water bodies arising from the Whitelee windfarm site persisting until at least 2013.

Failures to comply with the WFD, transposed into Scottish Law, have clearly been breached with documented evidence in relation to the public water supply from Whitelee windfarm site:

Drinking Water Protected Areas have to be protected with the aim of avoiding any deterioration in their quality that would compromise a relevant abstraction of water intended for human consumption. A supply intended for human consumption would be compromised if as a result of deterioration in the quality of the water body:

an abstraction (or planned abstraction) of water intended for human consumption
– has to be abandoned and an alternative used to provide the supply;
– water abstracted (or planned to be abstracted) has to be blended with water
– abstracted from another source
– additional purification treatment has to be applied; or
– the operating demand on the existing purification treatment system has to be
– increased significantly.

N.B. All of the above are documented in response to FoI requests to have occurred in relation to the Public water supply from the Whitelee windfarm site.

At Whitelee SW ‘host’ 60 of SPR’s turbines on a public water catchment area, which is supposedly protected under statute under the terms of the Water Framework Directive (The Water Environment (Drinking Water Protected Areas)(Scotland) Order 2013, amended from 2007.)

First Minister Alex Salmond pushed through a bill requiring SW to ‘develop’ its resources for renewable energy purposes in 2012. This involved an important amendment to the Water Industry (Scotland) Act 2002. Section 25 of the Water Resources (Scotland) Act 2013 In Support of Renewable Energy

……………………………………………………………

Despite investigation and remedial upgrades to the Amlaird WTW, SW has still been unable to consistently produce potable water to statutory standards. Following enforcement action from the Drinking Water Quality Regulator (DWQR), SW’s solution is to abandon the two Whitelee reservoirs and build a new, approximately 30 km, 1m wide pipeline to supply water from north of Glasgow (Loch Katrine) to over 50,000 consumers in Kilmarnock, surrounding towns and the Irvine valley – all paid for by the public purse at a cost of many millions of pounds, whilst the profits from hosting these 60 turbines are fed into Scottish water Horizons Ltd.
The DQWR’s role in all of this (in unison with SW) is to publicly deny that there is, or has been a problem for public water which has resulted from windfarm construction.

…………………………………………………………..

It is perhaps relevant that water pollution is no different to the smells, noise and polluting fumes as regards page 60

…………………………………………………………..

3. Of particular relevance to issues of public participation is the fact, as noted by various UK groups and individuals, is that we are now all at risk of being unable to follow through with complaints in the UK Courts.
Mr. Paul Mobbs for example, notes his concerns which serve to highlight Aarhus Convention problems arising in his warnings found at : http://www.theecologist.org/essays/2986484/uk_government_attacks_public_right_to_environmental_justice.html

…………………………………………………………

4. Current unprecedented flooding events in the UK can be associated with areas where the developments of wind farms have aided the potential for increased water run-off in the upper reaches of river catchments. Indeed the Environmental Statement for Whitelee wind farm predicted a 10% increased flood risk for the River Irvine lasting for 10 years. This river flooded in Kilmarnock last year trapping shoppers who were rescued by boat. Evidence of other towns being similarly affected is compounded by a study from Aberdeen University which can be viewed at http://bankssolutions.co.uk/powys/wp-content/uploads/2013/05/7-Smith-et-al-Windfarms-on-undegraded-peatland.pdf

Conclusion.

The UK would appear to be no further forward in fulfilling full compliance with the Articles of the Aarhus Convention as cited in Decision V9n concerning United Kingdom. It is hoped that the Committee will feel able to ask for more information should any of the issues raised need further clarification or more supporting documents.

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