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Health minister has authority to stop Belco soot emissions

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This is the second part of a series of articles into emissions from Belco from documents released under a series of requests via Pati

The health minister has the legal power to stop soot emissions from Belco by declaring them a “statutory nuisance”, The Royal Gazette has learnt.

A spokesman for the Department of Environment and Natural Resources said while Belco’s operating licence, issued by emissions regulator the Environmental Authority, speaks to soot and other emissions, a condition referring to “statutory nuisances” can be determined only by the Department of Health, under the Public Health Act 1949.

Belco’s North Power Station (Photograph Supplied)

The Act says the Minister of Health, currently Kim Wilson, if satisfied of the existence of a nuisance, may make an order requiring abatement.

The Royal Gazette has asked the minister and Department of Health whether any consideration has been given to ruling soot fallouts as a statutory nuisance.

A Government spokeswoman said: “In response to recent reports from neighbourhood residents’ concerns regarding emissions from Belco, the Government is conducting a thorough investigation and can provide reassurance to the public that all necessary steps are being taken to review the matter in accordance with the Public Health Act 1949 and Belco’s operating licence as a controlled plant under the Clean Air Regulations 1993.”

Kim Wilson, the Minister of Health, can rule on whether the soot fallouts from the North Power Station are a statutory nuisance (File photograph by Akil Simmons)

Statutory nuisances include dust, smoke or effluvia that is prejudicial to the health of, or is offensive to, the inhabitants of the neighbourhood.

Statutory nuisances under the Public Health Act 1949

• Any accumulation or deposit that is prejudicial to the health of, or is offensive to, any person in the neighbourhood.

• Dust, smoke or effluvia caused by any trade, business, manufacture or process and which is prejudicial to the health of, or is offensive to, the inhabitants of the neighbourhood.

Neighbours of Belco have vociferously complained about the fallouts, among other emissions, which have led to black deposits landing on their roofs and property, not least since the commissioning of the North Power Station.

Activist group the Bermuda Clean Air Coalition, comprising area residents, businesses and other stakeholders, was launched with the aim of “bringing awareness of the health and property implications caused by Belco’s stacks and machinery in order to encourage resolution of the various problems impacting the public”. Residents invited this newspaper to their properties last August to show us the damage first-hand.

One elderly couple, Sharon and Arthurton Riviere, have moved out of their family home on St John’s Road, saying they can no longer live with the emissions.

While there has been no geographic study measuring the potential health effects of polluting sources in Bermuda, a number of residents have spoken out about health concerns they suspect are related to pollution.

However, a public access to information request by this newspaper revealed that Ricky Brathwaite, the chief executive of the Bermuda Health Council, during discussions with Geoff Smith, the DENR’s environmental engineer, said such a study could be explored.

The DENR spokesman said: “DENR acknowledges that the impact of the soot on Bermuda's white roofs, sidewalks, vehicles and neighbourhoods is unacceptable.”

He added: “Through the EA and Clean Air Act 1991, DENR requires that Belco meet the conditions of its operating licence and the Clean Air Regulations 1993. Condition 5.4.8 of the licence speaks to soot, dust and effluvia in the emissions.

“This condition refers to ‘statutory nuisances’ under the Public Health Act 1949 concerning ‘any dust, smoke or effluvia … which is prejudicial to the health of, or is offensive to, the inhabitants of the neighbourhood’.

“DENR has researched legislative standards in many other developed jurisdictions and cannot find any legislative controls for these types of periodic soot emissions, other than what is used to address ‘nuisances’.”

Order of Minister requiring abatement of nuisance under the Public Health Act 1949:

54 (1) “The Minister, if satisfied of the existence of a nuisance, may make an order and cause it to be served.

(2) “An order made under subsection (1) may include – (a) a requirement that the person on whom it is served shall abate the nuisance within a reasonable time to be specified in the order; and (b) a requirement for the execution by such person of any work which the Minister considers to be reasonably required to abate or to prevent a recurrence of the nuisance.“

The DENR said it is still working to identify detection systems with which to create legislated or other limits on the soot fallouts. It said it had reviewed data from opacity sensors inside Belco’s stack which measure smoke particles to ensure the opacity level remains compliant with local regulations. Belco’s operating licence sets a target limit of 15 per cent opacity averaged over a period of six consecutive minutes in any one hour.

However, the spokesman said these particles travel so quickly that they are “very difficult to measure”.

The spokesman added: “If the EA/DENR cannot show that the soot events breach the Clean Air Regulations 1993, it cannot require Belco to address the issue to become compliant.

“Even if noncompliance were measurable, Belco would be responsible for determining any necessary changes to its operations. The EA/DENR would never instruct Belco on how to become compliant in this regard.

“Also, the EA/DENR cannot state that noncompliance has occurred until the Department of Health rules the soot events are a ‘statutory nuisance’.”

Drone work for visual assessment of soot particles is used as one measure, but both the DENR and British-based consultancy firm Ricardo Energy & Environment – which conducted a 2021 review of the soot emissions – said the assessments are insufficient. Ricardo said: “Visual assessment is notoriously subjective and unreliable, and the use of a drone and camera is not tackling the issue of concern.”

Residents alert Belco and the environment department to soot events

The Department of Environment and Natural Resources said that because soot events are difficult to detect in the stack, “DENR and Belco have been relying on public complaints to alert them of when such soot events have occurred”.

However, a spokesman for Belco said: “There are many methods through which Belco learns about soot fallout events, including drone footage, on-site observations and community feedback/complaints.”

The EA’s approval of Belco’s operating licence was documented in the EA minutes of November 30, 2021 with a note: “In the latest operational licence, isokinetic testing was not required.”

Isokinetic testing measures air pollutants such as particulate matter and smoke in flue gases from stacks and ducts.

The DENR spokesman said: “The EA/DENR is in the process of adding an isokinetic stack analysis of the particulate-based pollutants to the conditions of the operating licence OL-114.

“DENR is not aware of what this information will be able to provide on the potential causes of soot formation, but it will provide additional information on the types of compounds in the condensate before it is baked on to the inside of the flues.“

Belco said last year it was also considering suspending, during certain conditions, routine maintenance practices such as nut shelling and water washing of the exhaust duct suspected of being linked to soot events.

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Published February 28, 2023 at 8:32 am (Updated March 03, 2023 at 2:25 pm)

Health minister has authority to stop Belco soot emissions

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