Removal of PFAS from ground near airport (FOI)

​​​​​​Request

No action been taken over the past 10 years to require the removal of the PFAS contaminated ground from within and around the airport which leaches into the surrounding ground and water sources, making its way into the Island's water supply harming the health of Islanders.

In the late 1900s and early 2000s Jersey airport deployed fire-fighting foam containing PFAS. These chemicals were thought to be harmless but in the past 30 years it has become known that they are very toxic in miniscule quantities.

Limited remedial action was completed in 2004. Options:

•  Remove all the contaminated ground, 30 metres - £30M.
  
•  Remove the most affected ground, 10 metres - £22M.
•  Move 2 metres of ground elsewhere and insert a concrete wall to the East - £3.7M to £4.9M.

Last option was chosen and much of the contamination left in place.

Decades later and with growing public concern the Government established a PFAS Political Oversight Group then a Technical Group and now a Scientific Panel (costing many £100,000s) as well as providing blood analyses for some and is considering offering blood-letting.

​Statutory Nuisances (Jersey) Law 1999

2(1) the following matters constitute statutory nuisances for the purposes of this Law:

(f)any accumulation or deposit which is prejudicial to health or a nuisance;

Water Pollution (Jersey) Law 2000

4(1) “pollution” includes the introduction directly or indirectly into controlled waters of any substance, or energy, where its introduction results or is likely to result in –

(a) a hazard to human health or water supplies;

The Minister is able to make Water Quality Orders and require compliance with them.

Water (Jersey) Law 1972

the water does not contain any substance (whether or not a parameter) at a concentration or value which, in conjunction with any other substance it contains (whether or not a parameter), would constitute a potential danger to human health;

That this ongoing pollution meets the criteria for action set out in these Laws cannot be in doubt:

In light of these 3 pieces of legislation then surely action should have been taken to remove the source of contamination.

Please therefore provide:

A

The dates in the last 10 years when action to require that this pollution be stopped was discussed by the Minister for the Environment or his Officers.

B

Copies of all reports generated during the last 10 years which include "PFAS" or "PFOS" AND make reference to any of the three pieces of legislation above.

C

Copies of all reports generated in the last 10 years which include "PFAS" or "PFOS" AND have been submitted to the Law Officers' Department or Law Practice(s) for opinion.

D

Copies of all Ministerial Decision Records containing “PFAS” or “PFOS” AND make reference to any of the three pieces of legislation above.

Note:

PFOS is a PFAS. PFAS is an abbreviation for a collection of chemicals. The foam contained many other PFAS. Initially the term PFOS was used to refer to the pollution whereas now the correct PFAS

Response

A

The Government of Jersey does not maintain a list of when discussions between the Minister for the Environment and their officers are held, therefore, this information is not held and Article 10 of the Freedom of Information (Jersey) Law 2011 applies.

Under the Freedom of Information legislation the Government of Jersey is not required to create or manipulate data when responding to a Freedom of Information request if the information is not held in the format requested, e.g., if a list is not maintained regarding when a particular subject was discussed by the Minister or Government of Jersey officers.  Therefore, it would be considered that this information is not held since it is not held in the format requested.

However, some of the requested information may be held within Government of Jersey records, such as the calendars and diaries of multiple individuals.  A manual search of these records would need to be carried out to determine if this information is held and to extract the requested information since it is not stored in a centrally accessible area.

The Government of Jersey systems are not configured in a way that will allow extraction of the details requested. 

It has been estimated that to provide the information requested would exceed the 12.5 hours allowed for Freedom of Information responses in accordance with Regulation 2 (1) of the Freedom of Information (Costs) (Jersey) Regulations 2014. Article 16 of the Freedom of Information (Jersey) Law 2011 has therefore been applied and this part of the request will not be processed further. 

Therefore, Article 10 and Article 16 both apply in relation to question 1 since a list is not maintained in relation to the requested information and the Government of Jersey is not able to extract it within the allowable period for Freedom of Information responses.

Given the above it is helpful to outline the progress made to better understand and identify pragmatic options to safeguard water resources in St Ouen’s Bay and Pont Marquet catchments, and the pathways within the airport site.

As detailed in the 2019 interim report from the Officer Technical Group, a water sample taken in January 2019 showed traces of PFOS and PFOA and subsequently prompted a programme of water sampling in the wider vicinity.  A link is provided in response to question two for access to the report.

A recommendation in the interim report, included undertaking a PFAS hydrogeological study and risk assessment within the water catchments of St Ouen’s Bay and Pont Marquet.  

The overall objective of the study is to further understand the PFAS impacts, including their distribution, fate and transport as well as to assess the potential risks to human health and the environment. In addition, the study will also help identify pragmatic and sustainable risk management options to assist to ensure the safety and future security of drinking water supplies in Jersey. 

The Phase 1 assessment that reviewed available data to develop an initial conceptual site model that sets out potential pollutant linkages within the two catchments has been completed. Please see the following link:

PFAS Hydrogeological Study Phase 1 report.pdf (gov.je)​

This defined further sampling to address identified data gaps and will continue to inform the PFAS hydrogeological study and risk assessment as part of Phase 2 of the study. This work is currently ongoing.

A further recommendation of the interim report was that ‘An investigation is undertaken to determine the sources of these higher levels of PFOS and PFOA, especially those emanating from the drainage of the airport’. This information will potentially inform possible remediation options. As a result, a formal regulatory position should, at this stage, be reserved.

Ports of Jersey are currently undertaking a site investigation of the airport to identify the presence of PFAS from historic activities undertaken on the site.

For information, fire-fighting foam containing PFOS / PFOA were removed from service by Ports of Jersey in the first quarter of 2020. Old stocks of the previous chemical have been appropriately disposed of or returned to the manufacturer.

B

The information requested is exempt under Article 23 of the Freedom of Information (Jersey) Law 2011 as the information is available on www.gov.je and can be accessed using the following link.

PFAS in Jersey (gov.je)

It should be noted that further reports may be held by Ports of Jersey, so you might wish to send your information request in writing to the following details, however, Ports of Jersey is not a Scheduled Public Authority (SPA) under the Freedom of Information (Jersey) Law 2011, therefore, they are not required to respond.

ask@ports.je

​or by post to: 

Ports of Jersey, St Peter, Jersey, JE1 1BY

C

The requested information is exempt under Article 31 (Advice by the Bailiff, Deputy Bailiff or a Law Officer) and Article 32 (Legal professional privilege) of the Freedom of Information (Jersey) Law 2011.

Article 31 and Article 32 are qualified exemptions, therefore, public interest tests have been applied and are shown at the end of this response.

Article 31 of the Freedom of information legislation applies to information that relates to legal advice. The underlying purpose of this exemption is to protect fully informed decision making by allowing government to seek legal advice or comment on documents in private, without fear of any adverse inferences being drawn, and ensures that government is neither discouraged from seeking advice or comment on documents in appropriate cases, nor pressured to seek advice in inappropriate cases. As such, requests for information about whether or not advice was sought, or will be sought, falls within the Article 31 exemption.

D

The information requested is exempt under Article 23 of the Freedom of Information (Jersey) Law 2011 as the Ministerial Decisions (MD) are available on www.gov.je  and can be accessed using the following links.

Ministerial Decisions (gov.je)​

MD-PE-2021-0076

PFAS in Private Water Supplies (revised): Subsidy for sampling

MD-PE-2021-0040​​

PFAS in Private Water Supplies: Subsidy for sampling

MD-PE-2020-0090

PFAS and water quality in Jersey 2020: An update report from the Government of Jersey Officer Technical Group​

MD-PE-2019-0064

PFAS and Water Quality in Jersey: 2019 Report

There are two unpublished Ministerial Decisions in relation to requested information, however, further information is exempt under Article 35 (Formulation and development of policies) of the Freedom of Information (Jersey) Law 2011.

Article 35 is a qualified exemption; therefore, a public interest test has been applied and is shown at the end of this response.

Ministerial Decisions have been made by the Minister for Economic Development (2014) and the Minister for Health and Social Services (2022) relating to, respectively, settlement avenues and testing, and which have been exempted and not published, or provided as part of this response. 

Articles applied

Article 10 - Obligation of scheduled public authority to confirm or deny holding information

(1) Subject to paragraph (2), if –

(a) a person makes a request for information to a scheduled public authority; and

(b) the authority does not hold the information, it must inform the applicant accordingly.

Article 16 A scheduled public authority may refuse to supply information if cost excessive 

(1) A scheduled public authority that has been requested to supply information may refuse to supply the information if it estimates that the cost of doing so would exceed an amount determined in the manner prescribed by Regulations. 

Regulation 2 (1) of the Freedom of Information (Costs) (Jersey) Regulations 2014 allows an authority to refuse a request for information where the estimated cost of dealing with the request would exceed the specified amount of the cost limit of £500. This is the estimated cost of one person spending 12.5 working hours in determining whether the department holds the information, locating, retrieving and extracting the information. 

Article 23 - Information accessible to applicant by other means

(1) Information is absolutely exempt information if it is reasonably available to the applicant, otherwise than under this Law, whether or not free of charge.

(2) A scheduled public authority that refuses an application for information on this ground must make reasonable efforts to inform the applicant where the applicant may obtain the information.

Article 31 - Advice by the Bailiff, Deputy Bailiff or a Law Officer

Information is qualified exempt information if it is or relates to the provision of advice by the Bailiff, Deputy Bailiff or the Attorney General or the Solicitor General.

Public Interest Test

Article 31 of the Freedom of Information (Jersey) Law 2011 recognises the longstanding constitutional Convention that government does not reveal whether Law Officers have or have not advised on a particular issue, or the content of any such advice. 

The underlying purpose of this confidentiality is to protect fully informed decision making by allowing government to seek legal advice in private, without fear of any adverse inferences being drawn from either the content of the advice or the fact that it was sought. It ensures that government is neither discouraged from seeking advice in appropriate cases, nor pressured to seek advice in inappropriate cases. 

The request for information about whether or not advice was sought or will be sought falls within the Article 31 exemption.

With regard to the public interest arguments, HM Treasury v IC [2009] EWHC 1811 Blake J recognised that when engaged, the Convention will carry significant weight in the public interest test. The Convention has been considered by the Office of the Information Commissioner and was held to be part of Jersey law. Whilst it is recognised that the strong public interest in protecting Law Officers’ advice may still be overridden in some cases if there are particularly strong factors in favour of disclosure, conversely, disclosing the advice or whether advice was or will be sought could inhibit the Law Officers from (1) giving frank advice (2) inhibit government bodies in taking advice for fear of its publication; and (3) inhibit the full disclosure to the Law Officers of all material relevant to the advice being sought and therefore real weight ought to be afforded to this aspect of the Law Officers’ Convention. Disclosing either the legal advice or the fact of whether specific advice was sought to the public is not a greater consideration of public interest that requires disclosure of the advice or confirmation of what advice was given. It does not outweigh the three principles set out above which require the long-standing Law Officer Convention to be maintained.  Therefore, the balance is in favour of maintaining the exemption and it is not considered the public interest in disclosure outweighs the preservation of the Convention on this occasion

Article 32 - Legal professional privilege

Information is qualified exempt information if it is information in respect of which a claim to legal professional privilege could be maintained in legal proceedings.

Public interest test 

​Whilst disclosure of the requested information would support transparency to the general public it is considered that the legal professional privilege outweighs the public interest in favour of disclosure at this time.

Article 35 - Formulation and development of policies

Information is qualified exempt information if it relates to the formulation or development of any proposed policy by a public authority.

Public Interest Test 

In applying this article, the following considerations were taken into account.

Public interest considerations favouring disclosure 

• Disclosure of the information would support transparency and promote accountability to the general public, providing confirmation that the necessary discussions have taken place.
• Disclosure to the public fulfils an educative role about the early stages in policy development and illustrates how the department engages with parties for this purpose.  

Public interest considerations favouring withholding the information 

• In order to best develop policy and provide advice to Ministers, officials need a safe space in which free and frank discussion can take place – discussion of how documentation is presented and provided is considered as integral to policy development as iterations of documents are demonstrative of the policy development process. 
• The need for this safe space is considered at its greatest during the live stages of a policy. 
• Release of the information at this stage might generate misinformed debate. This would affect the ability of officials to consider and develop policy away from external pressures, and to advise Ministers appropriately. 
• Premature disclosure of this information may limit the willingness of parties to provide their honest views and feedback. This would hamper and harm the policy–making process not only in relation to this subject area but in respect of future policy development across wider departmental business.

Following assessment, the Government of Jersey has concluded that, on balance, the public interest in maintaining the exemption outweighs the public interest in disclosing the information. 

It should also be noted that once a policy is formulated and published, the public interest in withholding information relating to its formulation is diminished, however, the use of the exemption can be supported if it preserves sufficient freedom during the policy formulation phase to explore options without that process being hampered by some expectation of future publication.