Applicants/Intended Claimants: 1st:MC 1 to MC :29/06/07:29/-06/07
Judicial review-Application for leave to make a claim
Vijaya Maharaj Bar #MAV 2004019
Messrs. RLM & Co.
Attorneys at Law
No. 15 Irving Street (North)
San Fernando.
Tel. No.: 653-9370
Fax No.: 653-5977
Senior Advocate: Ramesh L. Maharaj, S.C. Bar # MAR 1967006
15 Irving Street (North)
San Fernando.
Tel. No.: 653-9370
Fax No.: 653-5977
Junior Advocate: Marc Rawlins
15 Irving Street (North)
San Fernando.
Tel. No.: 653-9370
Fax No.: 653-5977
The Republic of Trinidad and Tobago
In the High Court of Justice
Civil Court Office, San Fernando
Claim No. CV2007-
BETWEEN
THE TRINIDAD AND TOBAGO CIVIL RIGHTS ASSOCIATION
JANET ALEXANDER
Applicant/ Intended Claimant
AND
THE ENVIRONMENTAL MANAGEMENT AUTHORITY
Intended Defendants
********************************************
AFFIDAVIT OF DR. MARK L. CHERNAIK.
I, Dr. Mark L. Chernaik, of Eugene, Oregon, United States, environmental scientist, make oath and says as follows:
1. I am the deponent named herein. All the facts deposed herein are true and correct and are within my personal knowledge save and accept where otherwise stated in which case I verily believe the same to be true.
2. I am an Environmental Scientist attached to, Environmental Law Alliance Worldwide (ELAW) and I specialise in the field of the environmental impact of industrial facilities on people, flora and fauna and on the environment in general. In 1984 I attained a B.S in Biochemistry from the University of Massachusetts following which I earned a Juris Doctor (qualifying degree in Law in the US) from the University of Oregon Law School. I am a member of the Oregon State Bar but I am an inactive member. In 1990, I earned a doctorate in biochemistry from John S Hopkins University School of Hygiene and Public Health in Baltimore, Maryland, U.S.A.
3. I am currently a Staff Scientist for the U.S. Office of the Environmental Law Alliance Worldwide in Eugene, Oregon, U.S.A. I have held this position since June 1992. In this position I have assisted more than four hundred public interest lawyers in more than sixty countries, inter alia, in obtaining comprehensive and up-to-date scientific, technical, and medical information, publications, documents and analysis that are essential to the elements of a case; presenting scientific information in concise terms that judges and other decision-makers can most easily understand; critically evaluate the scientific and medical evidence presented by opposing parties; identifying and involving the best scientific and medical specialists; critically evaluating Environmental Impact Assessments for proposed projects and designing, implementing and interpreting environmental testing projects.
4. For the past fourteen years, I have assisted people and organisations around the world make use of a wide range of scientific and technical information to solve environmental problems. In June 2005, the European Court of Human Rights relied extensively on my work to reach a landmark decision of Fadeyeva v. Russia (application no. 55723/00) regarding the rights of individuals exposed to toxic substances. My work by means of professional and expert opinions have also been followed by the Supreme Courts of India in the case M.C. Mehta v. Union of India (1999-(003)-CLJ 0361–SC) regarding the operation of hazardous waste generating industries within the Delhi Metropolitan area; The Supreme Court of Pakistan in Zia v. WAPDA (PLD 1994 (SC) 693) regarding the health effects of exposure to electromagnetic fields and the Supreme Court of Sri Lanka in Lalanath M. de Silva v Minister of Forestry and Environment regarding the necessity for establishing air pollutant emission standards. A true copy of my resume is now produced and shown to me marked “M.C. 1”.
5. During my years as a practising Environmental Scientist I have authored a number of publications concerning the environment and environmental issues some of which are listed below:
· Chernaik, M.L., & Huang, P.C., (1991) “Differential Effect of Cysteine-to-Serine Substitutions in Metallothionein on Cadmium Resistance,” Proc. Natl. Acad. Sci. 88:3024-3028
· Chernaik, M.L. (1998) “Empowering Environmental Lawyers Worldwide with Scientific Expertise,” Journal of Environmental Law and Litigation 13:17-35
· Chernaik, M.L (2003) “An Analysis of the Nuisance Odour and Health Problems in Chemor, Malaysia: Their Cause and Solutions,” submitted to the High Court of Ipoh, Malaysia.
· Chernaik, M.L (2004) “Human Health Risk Assessment of Pollutant Levels in the Vicinity of the ‘Severstal’ Facility in Cherepovets, Russia,” submitted to the European Court of Human Rights.
· Chernaik, M.L (2005) “Evaluation of The Environmental Impact Assessment Report Soapberry Wastewater Treatment Plant, St. Catherine, Jamaica,” submitted to the National Environmental Protection Agency of Jamaica.
· Chernaik, M.L (2005) “Evaluation of the Comprehensive Environmental Impact Assessment study for the Proposed Athirappilly Hydroelectric Project, India,” submitted to the Kerala State Pollution Control Board.
6. My experience in assessing effects of aluminium smelter plants on the environment and on flora, fauna and human life is wide and varied. In my capacity as Staff Scientist for the U.S. Office of the Environmental Law Alliance Worldwide, I have advised on and assessed such effects in many countries such as Australia, Canada, Chile, India and Jamaica to name a few. My relevant experience in this field is as follows:
· In 1999, I provided an assessment of technologies for improving energy efficiency and hence reducing carbon dioxide (CO2) emissions from Capral’s aluminium smelter in Kurri Kurri for the Environmental Defenders Office in Australia;
· In 1998 and again in 2005 I provided an analysis of the environmental impacts and environmental performance standards for aluminium smelters (including energy efficiency standards) for the West Coast Environmental Law Centre in Canada;
· In 2001 and again in 2004, I provided a critical evaluation of the Environmental Impact Assessments for Noranda’s proposed aluminium smelter in Aisen for Fiscalia de Medio Ambiente (FIMA) in Chile;
· In 2005, I provided a critical evaluation of the Environmental Impact Assessment of Vendanta's proposed aluminium smelter near Jharsuguda, Orissa for Agragamee in India;
· Between 2003 and 2004, I provided an assessment of sulphur dioxide emissions from JAMALCO’s aluminium smelter (partially owned by Alcoa) in Clarendon for the Jamaican Environmental Trust;
· In 2005 I provided a critical evaluation of the Environmental Impact Assessment for JAMALCO’s proposed refuse disposal site for the Jamaican Environmental Trust;
· In 2000, I provided a critical evaluation of the Environmental Impact Assessment for Comalco’s proposed alumina plant in Bintulu for the Consumer’s Association of Penang; and
· In 2003 I provided a critical evaluation of the Terms of Reference for the Environmental Impact Assessment for Masco’s proposed aluminium smelter in Lumut, Perak for the Consumer’s Association of Penang.
7. I have been asked by the Applicants/Intended Claimants to provide my expert opinion on the decision of the Environmental Management Authority (“the EMA”) to issue a Certificate of Environmental Clearance (“CEC”) to the National Energy Corporation (“NEC”) on the 2nd April, 2007 to carry on at Union Industrial Estate, Main Site ‘B’, La Brea, a designated activity under the EM Act namely being the “Establishment of an Aluminium Smelter Complex with a target capacity of 125,000 metric tonnes per annum” (“the decision”). I am duly authorised by the Applicants/Intended Claimants to swear to this affidavit on their behalf.
8. I have read the following documents which form part of the NEC’s Application for a CEC for the establishment of an aluminium smelter complex at Union Estate, La Brea, Trinidad:
(a) The Application by NEC for the CEC dated 25th April 2005. A true copy of this application is now produced and shown to me marked “M.C 2”. This application was numbered CEC1033/2005 by the EMA.
(b) The Final Terms of Reference for the Environmental Impact Assessment in respect of the said CEC (“the TOR”). A true copy of this TOR is now produced and shown to me marked “M.C 3”.
(c) The “Environmental Impact Assessment for Proposed Aluminium Smelter Complex to be sited at Main Site North, Union Industrial Estate, La Brea prepared for Alutrint” (“the EIA”)dated January 2006 together with the following reports which were submitted with the EIA as part of the assessment process:
(i) “Air Dispersion Model for an Aluminium Complex to be sited at Union Industrial Estate – Main Site North” dated January 2006
(ii) “Social Impact Assessment for the proposed Establishment for an Aluminium Complex at Main Site North, Union Industrial Estate, La Brea, Trinidad” dated January 2006
A true copy of this EIA together with the two reports mentioned at (c) (i) and (c) (ii) are together produced and bundled and shown to me marked “M.C 4”.
(d) “Supplementary Report – Alutrint Limited Response to the Environmental Management Authority’s Review and Assessment Report” dated August 2006. A true copy of this Supplementary Report is now produced and shown to me marked “M.C 5”.
(e) “Human Health and Ecological Risk Assessment for the Proposed Alutrint Aluminium Complex” (“HHERA”) dated February 2007. A true copy of this HHERA is now produced and shown to me marked “M.C 6”.
(f) The CEC issued on the 2nd April, 2007. A true copy of this CEC is now produced and shown to me marked “M.C 7”.
9. The aluminium smelter complex as proposed by the NEC would be based on the Hall-Heroult process (see pages 3-26 to 3-28 of the EIA “M.C. 3”). The basis for all modern primary aluminium smelting plants is the Hall-Héroult process, invented in 1886. This process involves alumina being dissolved in an electrolytic bath of molten cryolite (sodium aluminium fluoride) within a large carbon or graphite lined steel container known as a "pot". An electric current is passed through the electrolyte at low voltage, but very high current, typically 150,000 amperes. The electric current flows between a carbon anode (positive), made of petroleum coke and pitch, and a cathode (negative), formed by the thick carbon or graphite lining of the pot. This process is known as electrolysis.
10. As a result of this process molten aluminium is deposited at the bottom of the pot and is siphoned off periodically, taken to a holding furnace, often but not always blended to an alloy specification, cleaned and then generally cast.
11. A typical aluminium smelter consists of around 300 pots. These will produce some 125,000 tonnes of aluminium annually. However, some of the latest generation of smelters are in the 350-400,000 tonne range.
12. From time to time individual pot linings reach the end of their useful life and the pots are taken out of service and relined.
13. Aluminium smelting plants produce a number of pollutants, which can cause serious negative effects on plant, animal and human life and on the environment. The main pollutants are spent aluminium pot liners (SPLs), Cyanide, Arsenic, Inorganic Fluoride, Perfluorocarbons (PFCs), Polyaromatic hydrocarbons (PAH) and Sulphur Dioxide
14. The main flaws which I have identified in respect of the decision of the EMA to grant to CEC dated the 2nd April, 2007are as follows:
· There is no specific or clear provision for the disposal of Spent Pot Liner.
· The CEC has failed to take into consideration the effects of particulate matter pollution and/or emissions on human health, human life and the environment within the vicinity of the proposed aluminium smelter complex.
· The CEC dated 2nd April 2007 requires several analyses and information to be done which should have been part of the EIA
A. SPENT POT LINER (“SPL”)
15. There is no definitive plan by NEC to deal with the disposal of SPL. In the EIA, the NEC has indicated temporary storage and subsequent shipping to a disposal institution in the USA as its preferred method of disposal of the SPL. My review of the Supplemental Report indicated that the off island disposal will be aggressively pursued. There is not at this time in any of the documentation reviewed any evidence of agreements or contracts with any hazardous waste facility. Any actual plan for disposal of the SPL to a treatment and disposal facility together with the relevant contracts, agreements and/or memoranda of understanding should have been included in the assessment by the EMA to grant the CEC.
16. The public records at the EMA show that by letter dated 21st March, 2007 (approximately two weeks before the CEC was issued), the EMA requested of the NEC for the NEC to provide adequate information and the status of negotiations with SPL treatment and disposal facilities in the USA. I have been informed by the Applicants/Intended Claimants instructing Attorney at Law that according to the public records at the EMA, that before the CEC was issued, there was no response to this letter. A true copy of this letter dated 21st March, 2007 is now produced and shown to me marked “M.C 8”.
17. NEC in its EIA and Supplementary Report (exhibited as “M.C 4” and “M.C 5” respectively) has indicated that shipping the SPL to a treatment facility in the USA is the primary choice (pages 3-34 of the EIA (“M.C.4”) and pages AIII - 4 and AIII – 5 of the Supplementary EIA Report (“M.C.5”)). There are alternatives in the event that the primary proposal does not bear fruit. Therefore at this time there is no indication as to which method of disposal will be used for the SPL. Further because of this there was no way for the EMA to properly evaluate the disposal method while assessing whether or not to grant the CEC.
18. An improper disposal of SPLs can lead to serious and imminent threats to human health, human life and the environment by the improper disposal of SPLs.
19. In the manufacture of aluminium in accordance with the smelting process referred to herein, from time to time individual pot linings reach the end of their useful life and the pots are then taken out of service and relined. The lining of the pots will be removed to facilitate a new lining to be installed. Aluminium plants generate copious amounts of a hazardous waste known as spent aluminium pot liners (SPLs), which contains high levels of cyanide and other extremely hazardous substances such as polynuclear aromatics and fluorides.
20. According to the United States Environmental Protection Agency, constituents found in SPL include: “polynuclear aromatic hydrocarbons and metals, including arsenic, fluoride, and cyanide. Generally, concentrations of these constituents in spent potliners are as follows: <0.005mg/kg to 200 mg/kg polynuclear aromatics, <1.1 to <40 mg/kg arsenic, 18.25 mg/kg to 9,190 mg/kg total cyanide, 2.6 mg/kg to 4,800 mg/kg amenable cyanide, 230 mg/kg to 135,000 mg/kg fluoride, and various concentrations of other hazardous metals.”