We would like to thank you for your effective assistance in this matter and for bringing it up with us in time, which contributed to preventing a possible infringement of the EC rules in the UK.

So ends a letter sent to Friends of the Earth’s Rights and Justice Centre, who represented anti-incineration campaigners from Hull and East Riding (including HOTI and East Yorkshire Eye) in a dispute over funding for a proposed Saltend incinerator. The letter was issued by the Head of the European Commission Directorate General Internal Market and Services Public Procurement Policy Unit based in Brussels, following an investigation of a complaint made against Hull City Council and East Riding of Yorkshire County Council.

The complaint, made in March 2009, focussed on the award of a waste disposal services contract to the Spanish-owned Waste Recycling Group (WRG). Campaigners alleged that Hull and East Riding Councils were about to commit an infringement of the EC public procurement rules, as they intended to award a waste disposal services contract to WRG, without allowing other firms to submit a bid.

In 1999 the Councils signed a 25-year waste disposal services contract with WRG. The Councils subsequently announced their intention to extend this contract by a further 5 years, at an the estimated cost of about £72 million. This would have entailed modifying some of the existing contract’s conditions, without carrying out a prior call to competition and a tendering process in accordance with European Commission (EC) rules.

The planned contract amendments included an increase in the capacity of WRG’s proposed incinerator as well as changes to the payment mechanism. Campaigners successfully argued that this would constitute “a material amendment of the essential conditions” and therefore could not be considered a lawful extension to the existing contract.

According to the European Commission:

In such a case, the £72 million worth contract would constitute an autonomous and new public contract, which should therefore have been tendered out on the basis of an open, transparent tendering process in accordance with the EC rules.

As a result of the complaint:

…the UK authorities were invited not to proceed with the extension of the existing contract or with any other relevant act, before the Commission services’ conclusion regarding [their investigation into] compliance with the Community law of the issues under review.

During a telephone conference in October 2009 between the EC and UK officials, the Commission expressed their doubts and concerns that the proposed contract amendments would constitute an unlawful contract modification, as interpreted by the European Court of Justice, and would therefore constitute an infringement of public procurement rules.

Following that discussion, Hull City Council and East Riding of Yorkshire County Council gave the Commission an unequivocal commitment “that the Councils were no longer contemplating the possibility of extending or amending the existing contract with the WRG” and that “…the Councils now intend to continue with the contract in question as it stands, without introducing an extension or modification to its terms”.

And to think, they might have gotten away with it if not for those pesky anti-incineration campaigners working with the help of Friends of the Earth’s Rights and Justice Centre!

You can help support Hull campaigners in the next round of their legal battle to stop an incinerator from being built in Saltend by investing in HOTI bonds – see Get ‘em while they’re HOTI

As a network we frequently benefit from the efforts of fellow campaigners. One such action currently taking place is being progressed by Hull and Holderness Opposing the Incinerator (HOTI). Our brothers and sisters in Hull and Holderness are pressing hard to force the Environment Agency (EA) to fulfil legal obligations to consider the issue of Persistent Organic Pollutants (POPs) when reviewing permit applications for waste incinerators.

If successful, HOTI’s legal action – supported by Friends of the Earth’s Rights and Justice Centre – will help reduce POPs and prevent incineration of material that could be managed in other ways so as to prevent the unintentional production of POPs.

HOTI’s case exposes the slight-of-hand by which waste planning authorities (WPAs, i.e. local authorities determining a planning application for a waste facility, e.g. an incinerator) insist it is for the EA to consider alternative technologies while at the same time the EA says this is a matter for the WPA.

HOTI Bonds
The legal process entails a Judicial Review (JR) of the EA’s decision to grant an Environmental permit to the proposed (and possibly abandoned) Salt End Incinerator requires HOTI to create a fund to cover legal expenses (should we lose). An ingenious system has been devised to create this fund: HOTI Bonds.

The mechanics of the HOTI Bond scheme are quite simple:

HOTI is selling bonds to members of the public for £50, £20 or £10 (or multiples) and paying the money into an account that is to be used solely for the purpose of covering the costs of our legal challenge.

The money will be paid back to bondholders, pro rata, when whatever costs that arise from the legal action have been met. If we win, the bondholders should see most – and possibly all – of their money back. But if we lose, the bondholders might get nothing back at all. The local paper put this in a positive way, describing the idea as an investment in the environment, where investors might get some, or even all, of their money back.

HOTI have now passed the half-way point and are more than half-way to their target!

Anyone interested in investing in HOTI Bonds can contact the UKWIN Coordinator for more details, or simply send a cheque made payable to “HOTI” to Mr. J. Dennis, 21, St. Augustine’s Gate, Hedon, Hull. HU12 8EU who will issue the bond certificate.

The Hull Daily Mail is reporting:

Campaigners are claiming a victory against controversial plans for an incinerator near Hedon, after the development hit funding problems.

It comes after East Riding and Hull City councils announced a bid for private finance initiative (PFI) cash to help pay for the waste-burning facility was no longer being considered.

The authorities said the global economic crisis meant the financing option had become “un-affordable”. The councils had been seeking £73.7m of PFI money for the incinerator, proposed for a site at Saltend.

John Dennis, spokesman for the Hull and Holderness Opposing the Incinerator (Hoti) group, welcomed news of the funding blow.

Hoti regards this decision as very positive. We don’t yet feel the war has been won, but a significant battle has gone our way.

Earlier this year, the Environment Agency gave the go-ahead for the incinerator to be built. However, members of Hoti are preparing a legal challenge, calling on European law to help rip up the contract East Riding and Hull councils have with the incinerator operator, Waste Recycling Group (WRG).

Mr Dennis urged people to turn out in force for a march against the incinerator in Hedon tomorrow.

We are not foolish enough to think it will be a victory march, but Hoti and our supporters will certainly have a spring in their step.

A useful Defra presentation on the current state of Waste PFI bids can be found at: http://www.tenalpsevents.com/ContentFiles/1125%20JOHN%20BURNS.ppt

Incinerator made to wait

A local campaign group are fighting to stop an incinerator being built in a deprived area of Hull. HOTI – Hull and Holderness Opposing the Incinerator – want alternative technologies to be used instead.

Friends of the Earth lawyers helped HOTI make a complaint to the European Commission. This said how the incinerator project breached European rules on fair competition. The Commission should now take action forcing the project to be made public to other companies.

The impact of the incinerator on climate change was not properly considered by the Department for Environment, Food and Rural Affairs (DEFRA) or the Treasury. Using incineration to deal with our waste produces some of the biggest carbon emissions. This makes a large contribution to climate change. HOTI is also voicing strong concerns about the impact on health of the local residents.

Alternatives such as anaerobic digestion are better for local people’s health and help prevent climate change.

Campaign success causes delay
Legal letters have been sent by HOTI to both the Treasury and DEFRA. This work by HOTI and FoE lawyers has forced the decision on the incinerator to be put on hold. HOTI, and others, continue to campaign for a better solution – watch this space!

According to Defra:

WIDP has the role of supporting local authorities in delivering infrastructure to deal with residual waste. The Waste Infrastructure Delivery Programme (WIDP) was established to support local authorities to accelerate investment in the large-scale infrastructure required to treat residual waste, without compromising efforts to minimise waste and increase recycling levels. WIDP works to ensure cost-effective and timely delivery of the major infrastructure required to bridge the shortfall in residual waste treatment capacity needed in order for England to meet its share of the UK’s Landfill Directive diversion targets.

WIDP brings together the resources and roles of Defra, Partnerships UK and 4ps in support of Authorities undertaking waste projects.

WIDP has also produced an Information note on Combined Heat and Power (CHP) (PDF 180 KB). This is based on proposal contained in the Renewables Obligation Banding Review, and the Renewable Energy Strategy.

Defra has also produced an FAQ briefing on waste PFI, and a report, database and map of potential energy users and CHP applications in each region where Round 4 waste PFI procurements are anticipated. Each regional study examined potential energy users and generators within an approximate 25 mile radius of the boundaries of each of the below counties/regions.

Reports on-line to date include:
Coventry and Derby
West of England and Dorset
South and West London
North London, Bedfordshire and Hertfordshire
Hull and East Riding

For higher resolution versions of these maps please email WIDP.ProgrammeOffice@defra.gsi.gov.uk

The Hull Daily Mail reports that:

When the region’s two councils first put forward plans to burn non-recyclable household waste almost 10 years ago, the expected cost of constructing a facility was about £30m.

The article quotes veteran campaigner Barry Robinson:

This huge cost is just the latest reason why this monstrosity should not be built. We should also be asking why the councils are proposing to pay a waste company to burn our rubbish when, at the same time, we are recycling more than ever.

Further details are revealed in the Yorkshire Post:

Hull and East Riding councils hope around £72m of the cost will be paid by the Government’s private finance initiative (PFI). The rest would be paid by WRG although the councils would still have to make annual payments to the waste company over 25 years. According to leaked documents, the councils’ preferred option is to keep the present contract with WRG and get PFI credits to build the incinerator which will burn 240,000 tonnes of waste a year.

Most disturbingly, the article continues:

There are still problems allowing WRG – which has the option on the land at Saltend and planning permission for the plant – to be the sole bidder could open the councils to the risk of a legal challenge from another waste company. The documents admit: “Granting of PFI credits in a perceived sole bidder situation is unusual.” However the Government has considered the councils’ “unique” position and suggested they pursue both PFI options. As a council source put it: “The Government is bending the rules to try and make this work.”

The councils have a tight timescale to follow and must submit its outline business case to the Waste Infrastructure Development Board, a body reporting to the Government, by the end of the month. The Treasury Board that considers PFI bids should give its verdict next February.

Campaigner John Dennis of the pressure group Hull and Holderness Opposing the Incinerator said: “I think they are in a real old tangle with the money. We don’t need such a big plant with improved rates of recycling and falling amounts of waste.”

Meanwhile WRG has still not reapplied to the Environment Agency for a new licence to operate the plant at Saltend. In January the Environment Agency withdrew its pollution prevention and control permit for the facility after an appeal by opponents of the plant. The intervention followed a successful legal challenge by Friends of the Earth over a licence for a similar facility in Newhaven, Sussex.

They wrote to the council’s legal officer Matthew Buckley in July, asking him to provide details of blacked out sections in the document, but say they have yet to receive a reply. In the letter to Mr Buckley, they said:

We are writing to request a formal review of the redacted sections of the document as there are a number of points that cause us concern. It may be that these concerns have been addressed in the redacted sections but we have no way of knowing. We do not make this request lightly as we realise that you have many pressures on your time. However, we also feel that we would be failing in our duty as councillors if we did not do so, in the interests of transparency, accuracy and open government. Above all, we want to avoid decisions being made that may have long-term financial and/or environmental consequences for the two authorities concerned.

Hedon town councillor John Dennis, a spokesman for the anti-incinerator group HOTI, called on the council to find an alternative method of waste disposal. He said:

We think there’s a lot of shuffling about going on and finance is of great importance to everyone these days. They are having great trouble getting their funding so here is a good chance to get other systems in place without giving us this monstrosity.

The Yorkshire Post is also reporting that:
Waste Recycling Group (WRG), the Spanish-owned firm that signed a 25-year contract to run the plant nearly 10 years ago, has said it is about to submit a second application for a permit to operate the incinerator.

Planning permission for the Saltend site was granted in January last year, but 12 months later the Environment Agency revoked WRG’s licence to operate the plant over concerns about a similar scheme in Newhaven, Sussex.

The Agency said the application could take six months to process, and with the councils yet to secure funding, all parties are now in a race against time to deliver the project, which could take four years to become operational once building work has begun.

Campaigners say the delays mean the technology the incinerator would use to turn waste into energy would be redundant by the time the plant opened.

East Riding Council said it had received the councillors’ letter and would respond this week.

A spokesman said: “We have to safeguard commercially sensitive material but we will provide as much as we can in the public interest. They will be getting a reply this week.”