The Brofiscin saga

Jon Hughes

| 10th January 2008

The answer to the ongoing Brofiscin saga lies not in the South Wales Quarry but in Doncaster. Jon Hughes explains the complex legal judgement that has paralysed the Environment Agency and undermined its raison d’etre; to make the polluter pay

Documents contained in a recent data protection turnover reveal that the Environment Agency Wales has been actively involved in an attempted cover-up. There might be more than a whiff of corruption and crony practices among the environmental services cabal in the principality and elsewhere in the Agency, but this is a cover up of an altogether different order. It is one designed to hide a pattern of systemic failure, and aimed at protecting careers before any duty of care towards public health and the environment.

As was starkly and succinctly detailed in a little-reported House of Lords Decision handed down on July 4th 2007 the Environment Agency has misunderstood the application of Part 2A of the Environmental Protection Act 1990; the law which gives them, as an executive quango, quasi police powers; and their stated enforcement raison d’etre; to make the polluter pay.

Under Part 2A the Agency has wide ranging powers to secure the evidence necessary to identify the ‘appropriate persons’ for prosecution as the 'knowing permitter' of pollution of contaminated land. Yet, in the case of Bawtry, the Agency chose to pursue another route, which on appeal the House of Lords rejected, setting a far-reaching precedent for environmental legacy liabilities and contaminated landfill sites in the UK.

Bawtry is a small village located near Doncaster, and the polluted land in question had been home to a former gasworks, producing coal gas. Initially it was privately owned, but then subsequently state owned before again being privatised in the Eighties. However, part of the site had been sold in the 1960’s to a property developer and eventually, after another change of ownership, 11 houses were erected. Subsequently, pollutant linkages were discovered involving polyaromatic hydrocarbons - which pose a recognised public health risk - and in 2003 the site was classified as contaminated land, and a ‘special site’. The Agency spent £700,000 on remediation work, and then sought to make the polluter pay.

Under its reading of Part 2A the Agency chose to pursue the last commercial owner, National Grid Gas (formerly known as Transco) – a successor due to statutory transfer on privatisation – on the basis that it had assumed the previous owner’s liabilities along with the assets, and the High Court (Forbes J) found in the Agency's favour. However, the House of Lords then unanimously found against the Agency, and rejected the judgement. Transco could not possibly be described as a ‘knowing permitter’ of the pollution on site as they are in the business of gas transportation and not manufacture, and they never operated the site. The Lords found that the current owner of any polluted land who did not cause or knowingly permit the contamination cannot be held accountable just because they are a successor enterprise.

The implications are considerable, especially for legacy sites such as Brofiscin, where the dumping took place 40 years ago and like Bawtry, involves companies that have serially changed hands or reconstituted. The ruling means each contaminated site case will have to now be investigated individually as to the key question, which is whether the alleged appropriate person who, as a successor, now controls or operates a site, was a “knowing permitter”.

Essentially, the Agency was told it had to prove where the pollutants came from and who put them there in order to make a case. Without a whistleblower, this means it is beholden on the Agency to forensically gather such evidence by fingerprinting the wastes and identifying who manufactured them and whether the disposal firm dumped them knowing them to be dangerous. Both a hugely complex and costly process.

Since Bawtry entered the legal process in 2005 the Agency (and EAW) has been paralysed as to how to fulfil its remit. Little wonder then that they weren’t best pleased when Douglas Gowan came forward to ‘educate’ them as to what they should be doing in regard to those who polluted Brofiscin Quarry in South Wales. Especially as he was advocating the very course of legal action the Agency had decided against in regard to Bawtry.

Armed with his personal knowledge of the original contamination, his evidentiary proofs and peer-reviewed analysis of the pollution in the quarry, Gowan had exactly the kind of evidence the House of Lords ruled the Agency required; more than sufficient for EAW to pursue the self-confessed polluter Monsanto in 2006.

Not only is it relevant to any prosecution through the UK courts it was relevant to the ongoing case in the US bankruptcy court, which was hearing the environmental legacy issues caused by Monsanto’s past waste disposal practices. Gowan alerted the Agency to the fact that Monsanto were accused of fraudulently declaring their environmental legacy liabilities and urged them to make the UK interests known.

Monsanto’s Newport plant manufactured up to 25% of the world’s total production of PCBs. Yet no UK legacy liabilities appeared in Monsanto’s statement of accounts although it was known they had dumped the wastes from PCB manufacture, including dioxins, the most lethal chemical known to man, in at least 12 sites in Wales and England. Among Gowan's compelling evidence was an agreement by Monsanto and their then waste contractors, Purle Brothers, accepting 50/50 liability for the cost of site remediation by the end of 1972. A position later confirmed by Monsanto’s Environment Director DB Shearn, in a 1989 Thames TV broadcast, in which he openly admits to a “shared liability”.

Gowan gave his advice as someone who had spent 10 years of his life acting as a Trustee or Examiner in the USBC, and as a former US based consultant specialising in company re-organisations, and complex financial frauds.

Gowan was also advocating phased remediation so as to protect the community and environment, but unlike at Bawtry the Agency refused to consider the option, despite the presence of chemicals known to be far more toxic, citing the fact that only one farm was at optimal risk, and an underground aquifer that was not yet in use. It was alleged that even very minimal remediation was not cost effective, and there was no need also for a full evaluation study when fulfilling the requirements of the legislative process.

The Agency inexplicably chose to ignore Gowan’s advice on both counts. Instead, seemingly convinced they would be proved right in regard to Bawtry, it pursued the current owners of the Newport plant, Solutia UK, in the USA, as a successor enterprise. Yet Solutia UK whilst wholly-owned by Solutia Inc was not even before the US court, and no hearings ever occurred.

The EAW was clearly leaderless at the time, as stated in documents released under data protection law. One is entitled ‘Brofiscin Quarry – the project plan’, which states: ‘Management of role in relation to Brofiscin Quarry was set up on a project basis at the beginning of April 2007. The project has struggled to define roles and responsibilities and provide as clearly as possible a plan of what we need to achieve and by when.’

This memo was written in July, with the Bawtry ruling imminent, and with the last window of opportunity to address the USBC fast closing. But since May the EAW Brofiscin Project Team had been focused on quite another issue; what to do about Gowan and his unwanted advice and historical testimony and information

Nine officers, including Viscount Mills and two lawyers, met for several hours to review possible options and vote on them. Initially they decided on option 5, to engage with Gowan. But documents in the data protection turnover reveal that the two meetings that the EAW then subsequently held with Gowan; one including the peer Margaret Mar; were for the purpose of spin; ‘to give the impression Gowan is being heard’. A media strategy was devised to ‘regain control of the story’.

But they still haven’t got their story straight, as is made clear in a 14-page 'ministerial briefing' on Gowan prepared for Lord Rooker, responsible for Environment Agency business at Defra, and in a response for assurances of the 'integrity' of the EAW approach to Brofiscin from the First Minister of the Welsh Assembly Government Rhodri Morgan, and Welsh Assembly Member Jane Davidson. A document that although redacted in large part and primarily interested in trying to undermine Gowan is, when it comes to the substantive issue of making the polluter pay, confused.

For instance, at one point it says on page 9 of 14, 'we are only part way through the process of identifying appropriate persons, linking these to significant pollutant linkages, determining the type of remediation and allocating costs to the polluters.'

But then on page 10 it is stated, 'a link has been established between PCB pollution and Monsanto

If this is the case, the question has to be why was no claim ever been lodged against the company? Yet it is also not clear that such a link has in fact been made in any of the studies undertaken by the Agency which have cost nigh on £1m over the past three years.

Throughout this saga the Agency has maintained that it required the report of environmental engineers Atkins to make its case. When this at last materialized it was apparent it hadn’t been commissioned on the basis of proving links to any polluter and neither did it suggest any remediation options. We contended this serially delayed independent consultants’ report had been radically rewritten. In a largely redacted email one of the groundwater and contaminated land experts on the project team, Trystan James wrote:

‘Worst case scenario is it may be that one section of the report may need to be rewritten altering the content of the other 10 sections and then all five volumes (over 200 pages) will need to be amended.’

He also asks can we change the references to the corroding black barrels in the quarry. As we revealed in November (Environment Agency shoots the messenger, Ecologist online), such black barrels have also now emerged in acid tar pits at Rhos and Telford and are also leaking their contents. At Rhos the Agency has said they are safe, although they are considered too dangerous to open and analyse. It is believed they may contain dioxins or other virulent toxins.

As Brofiscin is the figurehead of a far larger problem involving Monsanto's wastes – 14 sites in total – Gowan asked EAW if other authorities in Wales and England had been alerted to the issues at Brofiscin as they may be of relevance.

‘I wonder if you might very kindly pass me the names of the suitable persons within the Agency who would deal with Telford, Hereford, Wigan (Dalton), Ellesmere Port area, so I might share my information on these sites.’

Viscount Mills writes on the print out of this email, made available under data protection: ‘AJ (presumed to be Andrew Johnson, Brofiscin project leader) Please advise. We need to decide how best to handle this. Regards Chris.’ Such a response is simply baffling. Handle what? The sharing of information with its own regional centres as to public health and environmental risks? Continually over the past year rather than address the issues at hand, the EAW has repeatedly turned the focus onto Gowan and behaved in an extraordinary manner in the process. It received unsolicited defamatory opinion on Gowan from a public limited company, who count among their biggest clients the ‘appropriate person’ Monsanto. When this libellous opinion became public the EAW got their own, publicly funded, lawyers to help draft a response on behalf of the company. In September 2007, EA Director Southern Region, Howard Davidson was appointed to investigate complaints made by Gowan against two EAW senior staff. He was promoted by Viscount Mills and himself as being ‘totally independent’. Yet on June 6 Viscount Mills wrote to Davidson in regard to Brofiscin and the Ecologist articles, saying, ‘Your urgent assistance is required’. Viscount Mills has attacked the Ecologist for reporting that police were investigating how certain private email correspondence had found its way into EAW files. We legitmiately reported what was confirmed to us at the time of going to press by the complainants, and four of the 10 emails in question remain unexplained. However, an email from Brofiscin Project team leader Andrew Johnson to Viscount Chris Mills and EAW lawyer Dave Cavell poses the perplexing question, 'Again do we respond to an email not originally sent or copied to us?'

It’s not just Gowan who has now complained about the Agency’s handling of information. Paul Mee, the public health chief at Rhonda Cynon Taf Borough Council, has also complained about the dissemination of his confidential emails, concluding, ‘Clearly this has implications for future correspondence between our two organisations.’ A Groesfaen villager has also complained.

What can explain such behaviour from a public organisation? Bawtry. Since this case arose Part 2A has been in ‘virtual suspension’. EAW and the Agency, and seemingly Defra, wanted to keep this quiet and have been prepared to go to extraordinary lengths to do so – as far back as May. Gowan it seems has been a convenient decoy.

Viscount Mills and his team has thus now dismissed Gowan as a witness (option 1 – cease contact), and has served him with legal papers threatening court action in a final endeavour to shut him up (option 4 – stop him; legally). Yet despite this, they are also refusing to return his original witness documentation. And just before Christmas via the Liverpool law firm Brabners it wrote to Gowan saying all his information and proffs had been ‘expunged’ from the record.

In light of the House of Lords ruling and the fact that Gowan is the only living witness prepared to come forward to testify against Monsanto and their waste contractors Purle, it seems clear that the Agency has decided not to pursue Monsanto. In late November EAW officers met with the villagers from Groesfaen, which stands above the quarry. Lynette Morgan told the Ecologist: ‘The Agency told us they never intended to take a case against Monsanto. Cost was the overriding factor.’ This is contrary to all public pronouncements made earlier this year, and contrary to the assurances given to Parliament. This question of cost, which has also limited a proper investigation at Brofiscin, is of course of huge concern to both the EAW and the EA, as it is on this count alone that they are properly answerable to Parliament.Also present at that meeting was Paul Mee, public health chief at Rhonda Cynon Taf Borough Council and colleagues. Recently Mr Mee, his colleagues and new team of environmental consultants travelled overnight to Norwich to meet with Gowan. Asked to comment on the meeting Mr Mee told the Ecologist: ‘"I found our meeting with Mr Gowan to be both productive and positive. Mr Gowan provided us with some valuable insights into the history of the site and we will be taking into consideration his comments and information. We will be arranging for a further transfer of information and hope that our positive dialogue will continue."’ In 2005 the Agency took a wrong turn over Bawtry and has been paralysed ever since. This didn’t preclude them from acting, however. As with Bawtry it could have – under the clear provisions set out in the 1998 Groundwater Act, and the 2006 version of the EPA 1990 – first remediated Brofiscin Quarry and protected Brofiscin Farm, the village of Groesfaen, and the environment, from the ongoing pollution. Then they could have sought to collect from the polluter. But as of now they are doing neither.

In 2005 the Agency took a wrong turn over Bawtry and has been paralysed ever since. This didn’t preclude them from acting, however. As with Bawtry it could have – under the clear provisions set out in the 1998 Groundwater Act, and the 2006 version of the EPA 1990 – first remediated Brofiscin Quarry and protected Brofiscin Farm, the village of Groesfaen, and the environment, from the ongoing pollution. Then they could have sought to collect from the polluter. But as of now they are doing neither.

The Agency and EAW receive £1bn a year in large part to address issues such as Brofiscin and, as the Bawtry ruling made apparent, it will in future be ever more reliant on whistleblowers such as Gowan. Yet in both cases it has proved itself unfit for the purpose of making the polluter pay.

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