Unless a claim and ‘adversary action’ is lodged with the US bankruptcy courts (USBC) within around four weeks, the UK taxpayer faces picking up a bill for hundreds of millions of pounds to safeguard the environment and public health.
Yet for the past few months the Agency has stonewalled the one remaining eyewitness to events as they unfolded in 1967 onwards, and who is prepared to speak out. This man, who now carries a panic button at all times, also has a dedicated police protection officer supervising protective devices installed at his house because of the threats that he has received.
From 1967 to1974, Douglas Gowan represented farmers in the Taff area of South Wales, primarily as a legal adviser with an expertise in toxicology, having first gone to the area to investigate mysterious cattle and sheep deaths, and the abortions occurring in livestock, as a field officer for the National Farmers Union (NFU). He traced the likely cause of the deaths and abortions back to the Monsanto chemical plant in nearby Newport, where significant amounts of waste were being hauled daily to a nearby limestone landfill site operated by Purle Brothers.
The Monsanto plant, having been exposed for dumping thousands of tonnes of chemical wastes into the River Severn and public waterways and sewerage system, was now dumping its wastes in Brofiscin Quarry, and Maendy Quarry, which are sited above the farms where the mysterious livestock deaths were occurring. Documents seen by the Ecologist and shared by Gowan with the EA say that as much as 80,000 tonnes of waste contaminated by chlorinated hydrocarbons and polychlorinated biphenyls (PCBs) were dumped into Brofiscin Quarry, and 42,000 tonnes into Maendy Quarry.
Tests commissioned by Gowan and the NFU between 1968 and 1974 revealed these wastes to include at least 12 types of PCBs, marketed as Aroclor: tetrachlorophenol; pentachlorophenol; naphthalene; benzene; dioxin; dibenzofurans; and other carcinogens. Samples were shared with the relevant authorities, including the Department of the Environment; Glamorgan River Authority; the Government Chemist; Ministry of Agriculture; and Welsh Office, and were undertaken by ICI Laboratories in Brixham; Pick Everard Keay and Gimson in Leicester; the Royal Veterinary College; and the National Water Quality Laboratory in Duluth, USA. All these documents and reports are now reportedly missing.
Much of the evidence Gowan secured formed the basis of a three-year Sunday Times Insight investigation and helped cause a subsequent change in the law through the Control of Pollution Act 1974.
The late 60s and early 70s were a difficult time for Monsanto. Its main PCB production plant in Anniston, Alabama, had been exposed for routinely dumping and flushing away thousands of tonnes of PCB wastes into the public waterways and holes in the ground. Monsanto was forced to release thousands of documents revealing that the company had known the public health risks from these compounds – which were used in the manufacture of paper, paints, electrical conductors, capacitors, and transformers – for around 30 years. The production process meant that as much as 25 per cent of the chemicals used in the process often ended up as a spill, residue or as waste.
The Anniston and other scandals led to the banning of PCB production in America in 1971. During that period – and up until 1977, when the UK government reluctantly followed suit – PCB production was ramped up at Newport, creating even more wastes. While Brofiscin and Maendy quarries took the bulk of these, five other quarries across Wales and into the north of England were also used as Monsanto dumping grounds. It is not clear that any were prepared (lined and sealed) to accept such wastes. Both Brofiscin and Maendy certainly weren’t and both are porous: Brofiscin being limestone, and Maendy sandstone, which means that the wastes slowly and inevitably leach into the waterways, groundwater, and major aquifers. Of particular concern today is that Brofiscin stands above an underground reservoir that might well in the future be used as a public water supply.
On 1 February 1972, Monsanto and its waste disposal firm Redland-Purle (the successor to Purle Brothers) convened a meeting on site, and admitted to dumping the bulk of the wastes at Brofiscin. Legal memoranda were drawn up stating their joint liability for a remediation plan to be put in place by 31 December 1972. Those present at the announcement included Gowan; Robin Geldard CBE; Tony Morgan of Redland-Purle; his counsel, Richard Hawkins; the Welsh Office; the Glamorgan River Authority; Herbert Vodden of Monsanto; and representatives of the Department of Environment and Mininstry of Agriculture, Fisheries and Food (the forerunner of Defra). All should have copies of the agreement – produced the next day by the lawyers Freshfields – in their archives, but requests for them under Freedom of Information legislation by Gowan and Friends of the Earth have proved fruitless to date.
This state of affairs has never been contested by Monsanto or the Environment Agency. It was also corroborated by Dr William Papageorge, in December 1972. He was the chemical giants’ then toxicologist, who was known at the time as the ‘PCB Czar’.
Gowan presented all his evidence to the Agency in early September 2006, supported by sworn affidavits, in response to a public appeal issued by the EA, for people with knowledge of the site to come forward. Initially he was welcomed with open arms and invited by the EA chairman Sir John Harman to assist the EA in technical analysis and as to determining accountability. It was the Agency’s good fortune that Gowan had spent more than 20 years in corporate finance in the US, and more than a decade as an Examiner and Trustee in the USBC.
Then inexplicably, and seemingly because from his experience in the US courts he strongly disagreed with the Environment Agency’s strategy, Gowan found himself being shunned and stonewalled by its officers. While they refuse to speak to him, either by phone or in person, or respond to letters or emails, in an extraordinary development the Agency’s lead officer on the case, Graham Hillier, went public in the letters pages of the Western Mail, after the paper published a leading article on the growing controversy surrounding Brofiscin.
Hillier’s letter read:
SIR - I am writing to clarify a number of points in your report on Brofiscin quarry at Groesfaen (March 8).
We have been working closely with a range of organisations and individuals to ensure a thorough examination of the site. I would like to stress that all investigations to date have confirmed that there is no identifiable harm or immediate danger to human health.
Your article states that we have declined to submit a claim to the court in America. In fact, we have made written representations to the US bankruptcy court in New York, requesting that specific provision be made for any liabilities identified as the responsibility of Solutia UK Limited (previously Monsanto).
Initial studies show that any actual clean-up cost, far from costing hundreds of millions of pounds, as quoted in your article, is actually likely to cost significantly less than £100m. Our aim is to fully understand the current risks to ground and surface waters and to determine the most cost-effective way forward to protect the local environment and, if applicable, to recover costs from those liable.
Area Manager South East, Environment Agency Wales
To which Gowan responded:
SIR - In my view the public is being misled.
1. Mr Hillier does not mention animal or livestock health. Why? What about the food chain? Cattle have died and had abortions at Brofiscin Farm. They ingested the contaminated pasture and groundwater. PCBs were found in their tissue. Mice fed the same water died or developed tumours in research studies at two different major laboratories that were retained as advisers to the UK and US governments.
2. The Environment Agency's own consultants, Atkins, in their report dated December 2005, state the following about Brofiscin Quarry: ‘Pollution of controlled water is occurring... The waste and ground water have recently been shown to contain significant quantities of poisonous, noxious and polluting material... and additional entry (into the environment) will therefore take place.’
3. These chemicals are now reaching a Major Aquifer. They are not water-soluble but are slow acting, and they concentrate and accumulate in the fatty tissues in the body. I have 600 ng/fat of combined PCBs and dioxins in my own body as a result of my seven years of exposure at Brofiscin, and it is now causing immune system interference.
4. Solutia UK (formerly Monsanto) is indeed a Solutia subsidiary NOT included in the reorganization filing in the US. The USBC cannot grant the relief that Mr Hillier says he and the EAW have now sought. This is highly embarrassing for the UK. I made the Environment Agency aware of this fact early in 2006. The public purse is now exposed to needless risk.
I am a former trustee at the USBC. I have offered the EAW my advice and help, free of charge, as well as my detailed evidence about what was dumped where in the Brofiscin and Maendy quarries. Mr Hillier has refused that help. I believe very serious questions arise as to what on earth is going on, and as to whether the public interest is in safe hands.
The situation pertaining to Monsanto’s liability is complicated because the chemical giant broke into three in 1997, creating new Monsanto – today known for its GM activity; Pharmacia, which is now part of Pfizer; and Solutia Inc, which took over the chemicals division and any liabilities, such as Brofiscin. As part of the deal, new Monsanto undertook to indemnify any liabilities outstanding against Solutia Inc. Since 2003, Solutia has been seeking to be declared bankrupt and papers before the USBC show its negative net worth to be S1.417 billion.
Current assets are $848 million, and current liabilities $1.124 billion. A significant deficit. Any recognised claim from the UK would mean the company’s liabilities would far exceed its assets. This would probably force the court to break up Solutia and sell what parts it can for as much as it can, as a going concern. Under these particular circumstances, the Brofiscin and similar liabilities would pass to new Monsanto. New Monsanto is increasingly troubled by boycotts of its GM products, such as that recently launched by Mexico. Its recent announcement that it is to share GM research and development of products with German multinational BASF, gives an indication of the company’s precipitous position.
It will take around two weeks for the EA to file any claim or adversary action with the court and the Judge has indicated that unless Solutia present her with a cogent plan for finalising its reorganisation imminently - within around four weeks - she will likely rule how the company is to conclude its business in the summer. It is baffling in these circumstances that, rather than utilising Gowan’s expertise as both a former lawyer and toxicology expert, who was also active as the original events unfolded, the Environment Agency is seemingly choosing ignore him, or even block his testimony and advice. The Atkins report to which Hillier refers is not due to be presented until May, way past the USBC deadline for any claims in the USA.
Hillier’s claim that the quarry ‘presents no immediate danger to public health’ is also contrary to a pamphlet issued by the EA on the long-lasting dangers of PCBs leaching into sub-surface and waterways and aquifers. PCBs are persistent in both the environment and in humans and other animals, where they accumulate in fat. Exposure even to small amounts of these hormone-disrupting compounds has been linked with depressed immunity, reduced IQ in children, hypothyroidism, infertility, reproductive disorders and low birthweights, diabetes, heart disease, high blood pressure, liver damage, asthma and arthritis.
Another indication of the stonewalling that has been occurring is the Agency’s failure to share Gowan’s evidence and witness statements with the local council, which would be party to making a claim. Gowan gave permission in August 2006 for these documents to be shared. But in March 2007, the Agency wrote to him saying they hadn’t been shared under the Data Protection Act, and they wouldn’t be unless Gowan gave express permission. Which he did.
Yet a statement to the Ecologist from the Environment Agency states:
‘Local authorities have the primary responsibility for identifying contaminated land sites. If it appears a potentially contaminated land site is also a special site, the Environment Agency would be asked to investigate on behalf of the local authority. The Environment Agency in Wales has been working closely with a range of organisations – including local authority Rhondda Cynon Taf – and individuals, to ensure that a thorough examination of the Brofiscin site has been undertaken. All investigations to date have confirmed that there is no immediate danger to human health. The thorough approach being taken by the Environment Agency in Wales aims to understand the possible risks to ground and surface waters and the most appropriate remediation, including potential monitoring of the situation. The Environment Agency is also investigating what remediation is necessary and who is responsible for it. It would be premature for the Environment Agency to comment further at this stage of our investigation.’
The possible risks are manifest from what we know unfolded at Anniston, and from what the Agency warns us of in its own sub-surface document (An Illustrated Handbook of DNAPL Transport and Fate in the Subsurface). As the Agency seems to be confused about which company to hold liable, so it seems confused about the nature of PCBs – that they are slow-motion poisons that are long-living in the environment and food chain. Whether it’s a cock-up, conspiracy or confederacy of dunces, there is something strange going on at the Agency.
Potentially it could cost many hundreds of millions of pounds to remediate the sites in question, as the only seeming way to clear them would be to excavate, in part or in whole. Yet even that would not protect the water table, aquifers and surrounding environment in the medium term, as the contamination has a 40-year start.
The Environment Agency website says that one of its core aims is to make the polluter pay. To do that requires action. PDQ. Four weeks… and the clocks are ticking.
Jon Hughes is the deputy editor of the Ecologist.
Pat Thomas is the Ecologist’s Health Editor.
This article first appeared in the Ecologist March 2007