Planning Permission for Shannon LNG Pipeline

Written Submission by Safety Before LNG / Kilcolgan Residents Association (KRA)

to An Bord Plean�la on the Shannon LNG Pipeline Planning Application

- before the Oral Hearing

KILCOLGAN RESIDENTS ASSOCIATION

&

SAFETY BEFORE LNG

Submission on proposed Shannon LNG Natural Gas Pipeline and proposed compulsory acquisition of lands thereon from Kilcolgan, County Kerry to Foynes, County Limerick

7 October 2008

An Bord Plean�la,

64 Marlborough Street,

Dublin 1.

By Email only to: bord@Plean�la.ie

Re: GA0003 - Gas pipeline to connect Shannon LNG Terminal at Ralappane, Co. Kerry to existing natural gas network at Leahys, Co. Limerick and DA0003 - Application for an acquisition order for the Shannon LNG Terminal at Tarbert, Co. Kerry to the Bord G �is Eireann Network at Foynes, County Limerick

Dear Sir / Madam,

The Kicolgan Residents Association represents nearby residents of the proposed LNG regasification terminal and people with close family and economic ties to the area.

The ‘Safety Before LNG’ group represents people from both Kilcolgan and the wider community and is advocating responsible strategic siting of LNG terminals in areas which do not put people’s health and safety in danger. See attached signed submissions by Ms. Kathy Sinnott M.E.P¹ and Mr. Tony Lowes for “Friends of the Irish Environment”² on whose behalf this submission is also, therefore, being made.

We are hereby formally objecting to the proposed Shannon LNG Natural Gas pipeline and compulsory acquisition order, referenced above, in their entirety, on health, safety, environmental and strategic planning grounds.

In May 2006 Shannon LNG, a subsidiary of the American Hess Corporation, announced an option to purchase, subject to planning, the lands at Kilcolgan owned by Shannon Development, of which Councillor John Brassil was a director, to construct an LNG terminal for a price believed by us to be in the region of 28.1 million euros.³

The Shannon Foynes Port Company, of which Seanator Ned O’Sullivan (then a councillor) was a director at the time of the rezoning, described the development as follows:

“The development site is located immediately to west of Ardmore Point. It is on State (Shannon Airport Development Co) owned land and is designated for development with a four year option. Shannon LNG is the developer. The company is required to achieve planning permission within 2 years.”⁴

The lands, at the time, were zoned ‘Rural General’ and ‘Secondary Special Amenity’ and would have normally been subjected to a Strategic Environmental Assessment before rezoning as the proposed LNG project would certainly have a significant effect on the environment in this unspoilt area and given its status as a SEVESO II site.

However, RPS, the consultants employed by Kerry county council to undertake the screening report, claimed that they knew nothing about the proposed LNG terminal even though the site was purchased 6 months previously, highly publicised and announced in the Dail (the Upper House of Parliament) by the Minister for Energy and only lands owned by Shannon Development were being rezoned. It is highly incredulous that a reputable company such as RPS was not aware of the LNG terminal proposal, given that it is a top-tier Seveso II development, the most dangerous designation a development can have under the major hazards directive.

Incredibly, no SEA was therefore undertaken and a year of Environmental Assessment work was effectively dismissed as unnecessary for a dangerous LNG project.

The KRA has lodged a formal complaint with the Standards in Public Office Commission concerning its fears that Councillor Brassil (director of the landowners Shannon Development) and Councillor Ned O’Sullivan (director of Shannon Foynes Port Company), effectively prejudiced an SEA screening report⁵ in the interest of expediency.

It is our contention that the decision to build an LNG terminal was decided at the highest levels in the Irish Government and now the different statutory bodies are retrospectively and negligently approving the LNG project without any concern for safety, environmental or strategic issues.

To be quite clear, in our opinion, Kerry County Council refused to carry out an SEA on the lands about to be rezoned for the proposed LNG terminal because there was an option to purchase conditional on obtaining planning permission for an LNG terminal within 2 years on land zoned ‘rural general’ and ‘secondary special amenity’ for a price we believe to be in the region of 28 million euros. A full SEA would have taken upwards on 1 year to complete alone. Therefore, it is our view that the refusal was motivated by this condition to the detriment of the people of the south west on health, safety, environmental and strategic planning grounds.

The current Minister for Energy, Mr. Eamon Ryan T.D., (at the time in opposition) issued the following statement, on the announcement of the proposed LNG terminal on May 22, 2006:⁶

“Govt must give clear position on proposed LNG facility in North Kerry - Spokesperson on Communications, Energy and Natural Resources

The Green Party today welcomed the announcement of the proposed new Liquefied Natural Gas (LNG) facility in North Kerry. Green Party Energy spokesperson Eamon Ryan TD said: This proposed (LNG) facility will help reduce our reliance on gas coming on long distance pipelines running all the way from Siberia.

However, today’ s announcement seems to be more of a solo run from Miche�l Martin, the Minister of Enterprise, Trade and Employment, rather than a real signal of Government plans. No firm analysis has been presented as to how such a facility would work in the Irish market.

The lack of any involvement by Energy Minister Noel Dempsey in today’s announcement shows how disjointed the Government has become when it comes to energy policy. We are now calling on Minister Dempsey to outline whether he believes such a facility should be developed and to say whether he agrees with the location and arrangements being promoted by Minister Martin, concluded deputy Ryan.”

This current application for a pipeline and compulsory acquisition of lands is another step in what we consider to be an inherently-flawed planning process, bordering on corruption. The main priority of this process seems to be to obtain full planning and associated permissions for an LNG terminal in the minimum of time to rubberstamp a political decision that has already been made to the detriment of the environment, health, and safety and in total disregard for any semblance of proper planning practice and sustainable development.

Our concerns in this particular application include the following.

1. Shannon Development’s Annual Report 2006⁷ publicised a photo opportunity on the announcement of the LNG project with Councillor John Brassil, Minister Martin and senior vice president of Hess Corporation Gordon Shearer holding a map of the Greenfield rural site in North Kerry where the LNG terminal is proposed:

Pictured at the announcement by Miche�l Martin TD, Minister for Enterprise, Trade and

Employment, that Shannon Development has signed an ‘option to purchase’ agreement

with Shannon LNG, a subsidiary of Hess LNG, for a portion of Shannon Development land

bank at Tarbert/Ballylongford, Co Kerry, were (l-r): Kevin Thompstone, Chief Executive,

Shannon Development; John Brassil, Board Member, Shannon Development, Eugene Brennan,

Development and Marketing Director, Shannon Development, Gordon Shearer CEO, Hess LNG,

and Minister Miche�l Martin.

We are concerned at how Shannon Development could sign an “option-to-purchase” agreement with a developer conditional on obtaining planning permission for a top-tier Seveso II hazardous LNG terminal within 2 years⁸. It is highly questionable how Shannon Development could guarantee that planning permission could be obtained within 2 years for lands that, at the time, were zoned Rural General and Secondary Special Amenity.

2. In November 2006, RPS published a Strategic Environmental Assessment Screening Report on the proposed variation to the Kerry County Development Plan. No mention was made of the Shannon LNG proposal. The criteria for determining whether a variation to a development plan requires an SEA is clearly defined in Schedule 2A of the Planning and Development (Strategic Environmental Assessment) Regulations 2004.⁹ Seveso sites by their definition are dangerous and subject to the SEVESO Major Accidents Directive and as such fall under Schedule 2A (2) (the risks to human health or the environment (e.g. due to accidents). The full Schedule 2A underlines starkly how an LNG terminal cannot but have a significant effect on the environment and therefore require an SEA. 10 hectares of the proposed LNG development are for building 2 jetties and completing dredging works and ALL of these 10 hectares are on SAC waters. In addition the site surrounds and is surrounded by SAC, NHA and SPA land and water subject to Irish and European Environmental protection legislation. This is seen clearly on the map of the Environmental Designated Areas in the Shannon LNG EIS volume 1 page 2. ¹⁰

3. The Planning and Development (Strategic Infrastructure) Act 2006 is being used for this application as the proposed pipeline is greater than 20 kilometres in length.¹¹ However, three routes had initially been proposed. The alternative pipeline corridor that would pass closest to the ESB station being sold to Spanish Energy giant Endessa and earmarked for conversion to gas would be less than 20 kilometres in length and would not qualify for fast-track planning.

4. There is no blueprint on how the terminal and pipeline could integrate into other developments in the vicinity e.g. the pipeline proposed is 2 miles from the ESB station which is proposed to be converted to gas. No blueprint exits for any connection to the ESB station by the pipeline.

5. It is rumoured that a separate planning application may be put forward for another pipeline from Foynes to the ESB station in Tarbert if the current preferred route of this application is upheld. We are now convinced more than ever that only an independent strategic environmental assessment of the development of the southern shores of the Shannon Estuary can provide any logical overall environmental assessment of the impacts of the current proposed oil and gas storage developments coming in dribs and drabs into the public sphere. Development at abandon of industrial infrastructure in this manner does not constitute orderly development.

6. Federal fisheries officials have recommended that the U.S. Coast Guard deny permission for a liquid natural gas terminal off the Alabama coast that would use millions of gallons of sea water, citing potential threats to marine life. The terminal proposed by Houston-based TORP Technology would use an open-loop system requiring an average of about 127 million gallons of seawater per day to heat and regasify liquefied natural gas. In September 2008 the National Marine Fisheries Service warned the Coast Guard that the open-loop system could kill millions of fish eggs and billions of other microscopic marine organisms, setting back efforts to rebuild populations of red drum, snapper and other fish. It could also harm commercial and recreational fishing industries.¹²

The same open-loop system is being proposed for the Shannon LNG terminal which will see 105 million gallons of chlorinated seawater bein pumped into the estuary daily, causing serious environmental damage to the eco-system of this Special Area of Conservation (SAC). The withdrawal and discharge of huge volumes of seawater would affect marine life by killing ichthyoplankton and other micro-organisms forming the base of the marine food chain unable to escape from the intake area. Furthermore, the discharge of cooled and chemically-treated seawater would also affect marine life and water quality.

This issue has still not even been assessed prior to the planning decision as it is a permit given by the Environmental Protection Agency after planning permission is obtained.

Furthermore, if the EPA recommends a more environmentally-sensitive way to reheat the LNG (such as a closed-loop system) then this would require another planning application for modification or retention of an LNG terminal. This will never happen because of the sheer power and influence of HESS. The solution at that stage will be a mitigation approach which will not be a planning process undertaken from first principles.

7. The Planning and Development (Strategic Infrastructure) Act 2006 was signed into law on July 16^th, 2006. The land deal for the proposed Shannon LNG project was signed on May 2006. LNG terminals and pipelines are defined within the Act as strategic infrastructure. We object that the state implemented a law under pressure from the Gas industry which amounts to using state assets and resources for the enrichment of private companies. This abuse of state powers is highlighted very clearly in a recent ‘Irish Times’ article relating to health and safety issues in the Corrib Gas pipeline issue highlighted in Appendix B¹³ and which we believe to be unconstitutional.

8. This pipeline application is new environmental information that should subject the whole project (i.e. the pipeline and the LNG terminal ) to reassessment and not automatic retention, because the grant of development consent for the entire project (terminal and pipeline) should have been preceded by an EIA . In other words project splitting contravenes EU laws.

Equally, planning permission should be the final permission applied for because all environmental information is not available at the planning decision-making stage. It is bad planning practice to accord planning permission before all other licensing permits are obtained such as the EPA and Emissions licenses because this would provide more complete environmental information at the planning decision stage as obliged under European law.

This viewpoint has been confirmed in the following ruling:

On July 3^rd, 2008 the European Court of Justice ruled as follows in case C-215/06 (Commission of the European Communities v Ireland)¹⁴ :

“The Court (Second Chamber) hereby Declares that, by failing to adopt all measures necessary to ensure that:

- projects which are within the scope of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment either before or after amendment by Council Directive 97/11/EC of 3 March 1997 are, before they are executed in whole or in part, first, considered with regard to the need for an environmental impact assessment and, secondly, where those projects are likely to have significant effects on the environment by virtue of their nature, size or location, that they are made subject to an assessment with regard to their effects in accordance with Articles 5 to 10 of Directive 85/337, and

– the development consents given for, and the execution of, wind farm developments and associated works at Derrybrien, County Galway, were preceded by an assessment with regard to their environmental effects, in accordance with Articles 5 to 10 of Directive 85/337 either before or after amendment by Directive 97/11,

Ireland has failed to fulfil its obligations under Articles 2, 4 and 5 to 10 of that directive;”

Ground 105 of this case stated that

“Consequently, by failing to take all measures necessary to ensure that the grant of development consents relating to the first two phases of construction of the wind farm was preceded by an environmental impact assessment in conformity with Articles 5 to 10 of Directive 85/337 and by merely attaching to the applications for consent environmental impact statements which did not satisfy those requirements, Ireland has failed to fulfil its obligations under that directive.”

We therefore now request that An Bord Plean�la takes the ruling of this case in particular into consideration in its evaluation of this project. We are already aware that the Bord has serious reservations on this court ruling because it has already briefed John Gormley, the Minister for the Environment ,that a number of developments that were granted planning permission over the past 11 years may be regarded as illegal developments under the European Court of Justice ruling of July 3^rd 2008.¹⁵

9. We request that an assessment be made on uneconomical access to the Gas network and determine if this will affect supply of natural gas to the rest of Kerry and the construction of gas infrastructure in the county.

10.We question the need for a compulsory acquisition order for a pipeline and object to offers less than the open market value of the land.

11. We object that a private company with no interest in the common good is allowed to apply for compulsory acquisition of private land.

12. Ralappane House is now to be surrounded by a pipeline as well as an LNG terminal. It was not known at the time of the planning application for the terminal that the proposed pipeline route would pass in front of Rallapane House. This will destroy Ralappane House, a building now under consideration as a protected structure by Kerry County Council.¹⁶

13. Assessment of the emissions from the AGI should be included into the planning for the terminal. The AGI and pipeline infrastructure in the establishment will increase risks to nearby residents, contrary to Article 12 of the Seveso II Directive. Since the site is currently rural and non-industrial any development of this type is automatically an increase in risk and therefore Article 12 applies.

14. Risks from a pipeline were not included in the original assessment of the LNG terminal. Electorstatic risk increases with moving gas.

15. As the EIS of this application was not available on the internet for a lengthy period of time we are hereby formally requesting the right to make another submission on this application at a later stage. The applicant was under strict instructions at the pre-consultation stage (GC0003) to have the EIS available on the website but did not ensure this was the case until September 15^th 2008.¹⁷

16. The Health and Safety Authority (HSA) is not going to assess the project under its Seveso II obligations. In a simple letter to Eoghan Lynch of Arup and Partners, the Cork-based representatives of Shannon LNG, Senior Inspector, Patrick Conneely, wrote during the secret negotiations of the pre-consultation phase of this application:

“Ref. 124323/1

Re: your letter of May 28 on off-site pipelines and HSA role etc.

Dear Eoghan,

The Authority confirms that pipelines external to an establishment are not covered by the major hazard regulations (SI 74 of 2006) and are of interest as construction places of work only.

It is also correct to state that the pipeline inside the establishment was covered to the satisfaction of the Authority in the previously submitted QRA

Yours sincerely,

Patrick Conneely”

As there were 3 possible alternative pipeline routes proposed at the planning application for the terminal there was no actual route determined at that stage.

It is, therefore, incredulous that the HSA could have adequately assessed a pipeline route and above-ground installation (AGI), when the actual application for this project did not even exist at the time.

17. We also object that the HSA is not going to independently assess the pipeline because the developer is now the only party to assess the danger of its own planning application. This is all the more problematic because Shannon LNG is not a public body but a private company motivated solely by profit.

18. High Court Challenge:

The most serious flaw in the HSA’s approach to safety opinion it gives to planning authorities is to consider only the probability of an accident and to ignore the consequences of an accident in the safety evaluation of gas and petroleum infrastructure projects. In our opinion this is totally unacceptable.

The Strategic Infrastructure Act 2006 is being used in this application and application of this law is currently being challenged in the High Court, a fact we believe should be taken into consideration in the assessment of this application. We strongly believe that it would be prudent of the Board to await the outcome of this case which is currently due to be heard before the Commercial Court section of the High Court on October 14^th, 2008.

The case we refer to is that of “O’Mahony v. An Bord Plean�la and Ors 2008/598 JR”¹⁸ and “Friends of the Irish Environment Limited v. An Bord Plean�la and Ors 2008/597 JR”

Friends of the Irish Environment released a press statement today as follows:¹⁹

“FIE CHALLENGES FIRST STRATEGIC INFRASTRUCTURE ACT PROJECT:

FIE is challenging in the High Court the first decision to be given for a project under the new ‘fast track' Strategic Infrastructure Act, a Liquefied Natural Gas [LNG] Terminal near Tarbert on the Shannon estuary.

Until now, a planning decision given by a local authority can be appealed to An Bord Plean�la. But under the 2006 Strategic Infrastructure Act An Bord Plean�la itself makes the planning decision in the first instance and there is no further appeal.

Since the Aarhus Convention, European Directives have given citizens the right to a review of a decision that is ‘timely, equitable, and not prohibitively expensive'. It must be of all ‘substantive and procedural' legal matters.

This challenge of the Strategic Infrastructure Act therefore by Friends of the Irish Environment should be considered by the Board in this application because any rulings on this matter will have a direct bearing on how the Act should be applied.

Raymond O’Mahony, in his challenge, is questioning whether a simple statement by the HSA that it “does not advise against” a project does indeed constitute advice to the planning authorities as required of the HSA by law. It is quite clear that the requirement for a completely independent risk assessment of this project and not one provided by the developer, and not one which is undertaken as part of project splitting as we have here is what will be considered by the High Court and we therefore request once again that you await the outcome of this court challenge on October 14^th.

The Irish Times noted the following in the following article:²⁰

Tarbert challenge moves step closer

APPLICATIONS BY an environmental group and a local man for permission to bring proceedings challenging the proposed development of a €500 million gas terminal near Tarbert in Co Kerry will be heard at the Commercial Court later this year.

The proceedings were admitted to the Commercial Court list yesterday by Mr Justice Peter Kelly who directed that the applications for leave will be heard on October 14th. He said if leave was granted, the full trial of the actions would proceed immediately afterwards.

Proceedings have been brought by Friends of the Irish Environment Ltd (FIE) and by Raymond O'Mahony, a welder and member of the Kilcolgan Residents Association of Kilcolgan, Tarbert. Both are objecting to the proposed €500 million development by Shannon LNG Ltd of a liquid natural gas terminal at Kilcolgan, Tarbert.

Mr O'Mahony says he is extremely concerned about the safety of himself and his family and at how the Heath and Safety Authority (HSA) has dealt with issues concerning the proposed terminal.

Both sets of proceedings were initiated in the High Court earlier this year and were admitted to the Commercial Court list, which fast-tracks commercial disputes, on the application of Shannon LNG.

Permission for the development was granted by An Bord Plean�la on March 31st.

Shannon LNG claims it had spent €15 million related to the proposed development by last April and that any delay in moving forward with the development will have significant commercial consequences. It is aiming to have the facility operational by 2012 or 2013.

In its judicial review application, FIE claims the HSA failed to give proper technical advice on the control of major accident hazards relating to the proposed development as required by domestic and European law. It also claims the State failed to properly transpose four relevant EU directives.

It claims the HSA decided that major accident regulations applied to the proposed development but that the HSA's consequent technical advice on the development was inadequate, amounting only to "a simple statement" that the HSE did not advise against the proposed development.

FIE also claims there is no national land use policy governing the proposed development and that the Tarbert site is on a special area of conservation, beside a proposed national heritage area and special protection area and close to areas frequented by the public.

Mr O'Mahony is seeking declarations that the HSA failed to give proper technical advice concerning the proposed development and failed to transpose properly a number of relevant EU directives.

MARY CAROLAN� Irish Times 17.06.08

19. The Minister for the Environment, John Gormley (T.D) , has already publicly stated that the planning authorities have chosen the best pipeline route for this application. We have written to Mr. Gormley requesting more information on whether or not the alternative routes can now, therefore, be objectively assessed at the planning stage.²¹

On September 22^nd 2008 we wrote to the Minister as follows:

“Dear Minister.

“Best route chosen for Shannon LNG says Minister

The Environment Minister is confident that planning authorities have chosen the best route for the Shannon LNG gas pipeline. John Gormley was speaking on the final day of the Green Party think-in in Tralee. In July, plans for the 26 kilometre pipeline on the Tarbert Ballylongford land bank passed the first pre-application stage. The facility will bring 50 jobs to the area. During an oral hearing on the pipeline in January the company said the biggest obstacle to the 500 million euro facility was public concerns over safety. But Minister Gormley says the route has been carefully planned.”

In the original planning application for the proposed LNG terminal, three alternative pipeline routes were mentioned – one of which would pass adjacent to the ESB station which the Spanish energy giant, Endessa, has stated will be converted to a gas-powered generator in the coming years, saving jobs in the town.²³ This is a map of the proposed route corridor options:

The choice of alternative route was not put before the general public because the public is precluded from making any submissions to An Bord Plean�la at the pre-consultation stage. In other words, a planning decision was made without any formal public consultation. This would seem to be in direct contravention of the EU Directives on according participation to the general public in planning decisions and timely access to environmental information.

As the preferred route was chosen behind closed doors, we are now worried that your statement seems to suggest that the formal planning application will rubber-stamp a decision that has already been made. Also, this statement seems to be giving public ministerial approval for a pipeline planning application which has only been submitted to the planning authorities. We find this very worrying and would like you to clarify matters on this issue since you have already made a public statement on this controversial development which puts us at a disadvantage in arguing our case against the threat to our health and safety, the environmental damage and the lack of any strategic planning for this LNG project.

Finally, we ask you if there is any point in the Kilcolgan Residents Association lodging a submission on the pipeline if, as you have been quoted as stating by Radio Kerry, “the route has been carefully planned” and “the planning authorities have chosen the best route for the Shannon LNG gas pipeline”?

We await your feedback.

Yours sincerely”

This intervention by the Minister was all the more worrying when his private secretary previously wrote to us on May 30^th 2008 stating:

“Under the Planning Acts, the Minister, and consequently the Department,

may only intervene in the planning process in respect of heritage

matters, i.e., the Minister may comment on planning applications or

appeals, or give expert advice to planning authorities or to An Bord

Plean�la, in relation to the protection of the built and natural

heritage only. In all other circumstances, under Section 30 of the

Planning and Development Act, 2000, the Minister is precluded from

exercising any power or control in relation to any individual planning

application or appeal with which a planning authority or An Bord

Plean�la is or may be concerned.” .²⁷

20. Hoegh LNG has submitted a planning application for an offshore storage facility off the coast of Dublin, proving that alternative sites for LNG storage do exist and are being actively pursued in the Irish Sea.²⁸

21. The All-Island Strategy document for Gas Storage attached - “Study on Common Approach to Natural Gas Storage and Liquefied Natural Gas on an All Island Basis – November 2007”²⁹ jointly commissioned by the Department of Communications, Energy and Natural Resources and the Department of Enterprise, Trade and Investment, Northern Ireland, was published in November 2007 but only released in Executive Summary format to the general public on March 2008. This was AFTER planning permission was given for the terminal.

At the oral hearing into the proposed LNG terminal we requested that the planning authority await the publication of this strategy document publication as it would represent a government policy document that would be a statutory basis for a planning decision. At the oral hearing the inspector was at a loss on who to believe about the alternative sites and options available and we feel that he came under undue pressure to make a decision due to the fast-track planning process without all environmental facts at his, or the general public’s, disposal, contrary to the EIA Directive

This represents a recent policy document by the government and we request that you now consider the recommendations it makes.

This strategy document in evaluating the medium-term security of supply measures to be taken in Ireland recommends flattening the Corrib production profile as follows:³⁰

“The Corrib field is being developed with a production profile delivering maximum production for three years, followed by a relatively rapid decline in production. Consideration should be given to developing the field with the same nameplate facilities capacity, but producing it at less than maximum reservoir capacity in initial years so as to permit an increase in indigenous supplies should this be required in the event of a failure of supplies from GB. This would also have the advantage of prolonging the lower level of  output before decline. The need for this would reduce in the event that other supplies to the island of Ireland became available.”³¹

Indeed, following the publication of this government strategy paper, it is now our opinion that there is an obligation and statutory duty on An Bord Plean�la to insert production-level conditions, such as a “use it or lose it” condition on Shannon LNG in any planning permission given as this is no longer able to be enforced by the Department of Communications, Energy and Natural Resources.

The report also contained valuable information on high potential alternative storage sites and strategies which we now also request you consider:

b) The offshore depleted gas fields of the Kinsale gas field represent a storage capacity almost three times the size of the proposed LNG Storage tanks at Kilcolgan;

22. The other developments planned for the landbank, such as the SemEuro oil storage facility, are being kept on hold until the LNG application is completed. There must be a clearer definition of the types of development that should be allowed than being based on the probability of an accident as provided solely by the developer. SemEuro has been in pre-consultation discussions with An Bord Plean�la since March 20^th, 2007 (over 1 and a half years ago)³⁵ and we believe that the Board is not acting in an objective manner because it is refusing to declare the SemEuro application no longer valid. This allows it to avoid releasing the documents to the general public in order that the project and its impact on the LNG project be assessed.

23. On December 19^th, 2007, Shannon LNG wrote to An Bord Plean�la, informing it that

“landowner liaison is underway” and “a comprehensive package of measures have been agreed with the Irish Farmers Association and Irish Creamery Milk Suppliers Association on the terms and conditions for securing the rights of way for the pipeline”.

On May 21^st, 2008, Shannon LNG informed An Bord Plean�la that:

“we have issued wayleave offers to the landowners along the pipeline route and have requested that they be returned by 30 May”.

2 official pre-consultations took place between An Bord Plean�la and Shannon LNG – on February 8^th, 2008 and on June 19^th, 2008.

We are of the strongest opinion that An Bord Plean�la has allowed itself develop too close a relationship with the applicant and is now guilty of what we would term “agency capture”. It has not maintained an arms-length relationship and this is evident in that it has allowed and implicitly encouraged the developer to issue “wayleave offers” to the landowners. This is tacit approval by An Bord Plean�la for the pipeline route chosen and totally in contravention of the obligation to allow meaningful public participation in this planning process. When this point is taken along with the issue raised in point 19 above that the Minister for the Environment, John Gormley (T.D) , has already publicly stated that the planning authorities have chosen the best pipeline route for this application then it is reasonable to assume that a mockery is now being made of the planning process and the ordinary members of the general public on whose land all this development is taking place are being bullied into accepting a decision that they feel has already been made.

24. We are requesting an oral hearing be undertaken on the gas pipeline and the LNG terminal once more. However, we can only attend the hearing if it is held locally (in Tarbert, Listowel or Foynes) due to cost and accessibility for all. The previous hearing was held in Tralee, a 50-mile round trip. In addition, if the state will not provide its own independent LNG and pipeline safety experts for an oral hearing then we are requesting funding to engage these experts in the interests of fairness. Otherwise an oral hearing is nothing more than a meaningless publicity exercise.

25. The EIS submitted by Shannon LNG on the pipeline states:

“The soils in the region of the proposed route comprise stony clays with a high proportion of limestone rock fragments. On elevated land to the south of the pipeline there are large expanses of peat, and some of these boggy areas also extend northwards across the proposed route. These smaller areas of peat have been largely cut away or drained. There are also areas of alluvium in flood plain areas along the larger streams and rivers. Alluvium can be very variable in composition, ranging from soft clays to silts to gravels. The proposed pipeline will not have a significant impact on soils or geology.”

Given the recent bog slides in County Kerry³⁶ we require independent assessments on the effects on soils from experts not employed by the Gas company.

26. New information has been discovered since the oral hearing which now needs to be taken into consideration for the whole project:

a. No risk assessment has been completed for an LNG spill on water

c. The KRA made a submission on the new draft Kerry County Development Plan 2009-2013³⁸ which is retrospectively attempting to endorse the LNG terminal by stating among other things that 20-storey high LNG tanks will not have an effect on the landscape. A complaint has equally been sent to the County Council on the consultants, Fehily Timoney & Co, who undertook the SEA on the draft County Development Plan due to what we perceive as its lack of objectivity due to its indirect business links with Hess Corporation.

d. In Massachusetts, the state House of Representatives unanimously approved a bill on July 24^th 2008 prohibiting construction of LNG terminals within 5,000 feet of residences, schools, hospitals, elderly housing complexes, businesses and developments³⁹. It also prohibits LNG tankers from passing within 1,500 feet of populated shorelines. This law increases and formalises the protection afforded to communities. It gives clarity and certainty to all - to residents, developers, safety and planning authorities, saving time, expense and much community anguish. We are of the opinion that if the LNG terminal is to go ahead then no other development should take place within 3 miles of this development”.

e. In the original planning application permission given for the LNG terminal, no account was taken of:

i. The effect of traffic on Tarbert village

ii. How primary and secondary schools are to open and close at the same time to facilitate construction traffic even when the same bus drivers serve both schools

iii. Not all lands on site are owned by Shannon LNG and the issue of lands being sterilised has still not been dealt with

iv. The plan for a gas-powered ESB station on the site has not been environmentally assessed.

27. On July 16^th 2008 the European Petitions Committee formally informed the Kilcolgan Residents Association that it has asked both the European Commission and the European Parliament Committee on the Environment to conduct a preliminary investigation of the various aspects of the problem after the KRA expressed concerns that the LNG terminal, as proposed, contravenes several EU Directives. In its right of reply to this notification, the KRA submitted clarification on how it now sees at least nine EU Directives are being contravened. These are the WaterFramework Directive, the Emissions Trading Directive, the Environmental Liability Directive, the Seveso II Directive, the Gas Directive, the EIA Directive, the SEA Directive, the Habitats Directive and the IPPC Directive which we now request you take into consideration.⁴⁰

28. We request that you take on board all our other submissions and observations raised in our submission on the LNG terminal (PA0002),⁴¹ as well as the submissions made by all parties at the oral hearing in January 2008 and the eventual ruling documents of An Bord Plean�la.

29. We object to the manner in which the pipeline route has been forced on unsuspecting landowners who cannot possibly be expected to understand the consequences of the sale of lands without legal advice or obtain protection from the government which they would normally expect as their consititutional right. The landowners have been threatened that the lands will be taken off them anyway through this compulsory acquisition application and are being forced to sell out against their wills for fear of obtaining virtually nothing at all if this application is successful.⁴² Considering that Shannon LNG wants a permanent wayleave of 14 metres in width and working access to 50 meteres either side of the proposed pipeline, currently before An Bord Pleanala for consideration, no account has been taken of the real cost of sterlised land. For example a site worth 80,000 euros is being given away for 5,000 euros.

For example, if a farmer is going to have 400 metres of pipeline on his land,the compensation would be as follows:

1)  Flexibility Payment                                                               €  5,000.00

2)  Wayleave Payment       400 metres @ €25.50                       €10,200.00    

3)  Early Signing Payment   400 metres @ €10.50                      € 4,200.00

(Due within 21 days of signing Consent Form)  The flexibility payment of €5000.00 is payable on signing the Consent Form and returning it to Shannon LNG NO LATER THAN 30/05/2008. A payment of €34.00 per linear metre is payable in respect of the wayleave;75% (€25.50 as above) is payable on signing the consent form and returning it to Shannon LNG NO LATER THAN 30/05/2008. However the remaining 25% does not become payable until the DEED OF EASEMENT is signed AFTER the construction is completed. An early signing payment of €10.50 (see above) per linear metre is payable on signing the Consent Form and retuning it to Shannon LNG NOT LATER THAN 30/05/2008.  An advance payment of €24.00 per linear metre in respect of losses/disturbance is payable at NOTICE OF ENTRY ON THE LAND (shortly before construction starts).   

                                                                          400 metres @ €24.00                    €9600.00

The remaining 25% of Wayleave payement is payable on signing the Deed of Easement when construction  is complete

                                                                          400 metres @ €8.50                      €3400.00

Total payable from start of job to completion assuming that all forms are signed and returned on time and ASSUMING THAT LANDOWNER DOES NOT OBJECT TO THE PLANNING APPLICATION TO AN BORD PLEANALA (as per Consent Form, page 1 ) 

                                                                                                                                                              €19,400.00                                                                                                        

€  9,600.00                                                                                                        

€  3,400.00                                                                                                          

€32,400.00

If the "sweetner " flexibilty payment of €5,000.00 is deducted,you are left with a payment of €27,400.00 which equates to €68.50 per linear metre.

Over 60 landowners are involved, but as this is being done behind closed doors at An Bord Pleanala once again, the community has absolutely no input into the location of the pipeline.  Also, as the Oral Hearing into the LNG terminal was told in Tralee, landowners will not have a choice as compulsory aquisition orders will be taken out on them – this is not fair and the state has abdicated its responsibility to offer protection .

The Irish Constitution – Bunreacht na hEireann – states in Article 40 (1) that “All citizens shall, as human persons, be held equal before the law”. It states in Article 40 (3)(1) that “The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen”. And in Article 40(3)(2) it states that “The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”

We expect that An Bord Plean�la and the HSA, as an organ of the state should uphold these aforementioned constitutional rights in our interest. As residents of a sparsely-populated area we want to be treated with the same degree of protection from danger as residents of a more densely populated area, such as Dublin would be as obliged by Article 40(1).

We object that the laws being used under the Gas Acts and the Strategic Infrastructure Act to compulsorily acquire private land for a project that is not in the national interest on the grounds we have detailed in this submission are not constitutional. Furthermore, the acquisition orders are being requested by a foreign multinational energy company that does not have any concern for the national interest.

We intend to make a further submission to you on this issue as this is an issue that requires detailed legal argument which demands more time than this fast track planning process has allowed.

This LNG project is encouraging more dependence on imported fossil fuels, contrary to Ireland’s obligations under the Kyoto Protocol and the fight against global warming and climate change.

This LNG project poses an unprecedented risk to public health and safety.

It will cause damage to several environmentally sensitive areas.

The project does not conform to well-established codes of practice.

The whole LNG project has been ill-conceived, developer-lead, politically motivated and is being assessed without any strategic planning.

The development will pose a risk to a primary drinking-water supply in the Kilcolgan area.

No meaningful consultation has been carried out with the local community.

The EIS is seriously flawed because it is assessing only part of the overall project.

The HSA has abdicated all responsibility in refusing to even assess the parts of this project in an actual SEVESO II establishment.

This development would industrialise a previously unspoilt landscape.

The quality of life of people in the region of this development will continue to be severely damaged and the long-term impacts will be catastrophic.

The highly technical nature and vast scope of the proposed project demand independent assessments that are available for public participation before any planning decision is made.

Due to the serious issues raised by us we are asking An Bord Plean�la to reject this project in its entirety on health and safety, environmental and strategic planning grounds.

Yours faithfully,

Johnny McElligott

P.R.O. Kilcolgan Residents Association.

PIPELINE APPENDIX A

Complaint on possible breach of ethics and conflict of interest by Councillor John Brassil and Senator Ned O’Sullivan in the prejudicing of an Strategic Environmental Screening Report to the Standards in Public Office Commission (SIPO).

PIPELINE APPENDIX B

Irish Times, September 16, 2008

You don't build trust through gunboat diplomacy

PIPELINE APPENDIX C

Planning application notice of direct planning application to An Bord Plean�la

PIPELINE APPENDIX D

KRA Submission on Draft Kerry County Development Plan 2009-2015

PIPELINE APPENDIX E

Statements by Minister Gormley (T.D.) on alternative pipeline routes.

Pipeline Appendix F:

Unavailability of Pipeline EIS.

PIPELINE APPENDIX G:

Serious New Information on H�egh LNG and Irish Sea Offshore Gas Storage for PA0002 post oral hearing into the proposed LNG terminal in County Kerry.

PIPELINE APPENDIX H:

Planning decisions may be invalidated by ECJ http://www.thepost.ie/post/pages/p/story.aspx-qqqt=IRELAND-qqqm=news-qqqid=36509-qqqx=1.asp  

PIPELINE APPENDIX I:

Signed submission by Ms. KATHY SINNOTT M.E.P.

PIPELINE APPENDIX J:

Shannon LNG pipeline Contract, Consent forms, Code of Practice, Deed of Easements

PIPELINE APPENDIX K:

“Study on Common Approach to Natural Gas Storage and Liquefied Natural Gas on an All Island Basis – November 2007” jointly commissioned by the Department of Communications, Energy and Natural Resources and the Department of Enterprise, Trade and Investment, Northern Ireland

See http://www.dcmnr.gov.ie/NR/rdonlyres/8AD0EDDB-3237-4157-B230-2D467A3C1F9C/0/4DCENRGasStorageExecutiveSummary.pdf

PIPELINE APPENDIX L:

Signed Submission by “Friends of the Irish Environment”.