21. My Draft Defence
After requesting further extensions to the time limit for serving the defence, but running out of excuses for the delays, it was just a few days before the final date of 29th January 1990 when I received from Sarah the full formal draft, now dressed in legal terminology. The 33 pages of text addressed ReChem’s Statement of Claim point by point. I smiled at the first page, where the legal niceties required the reiteration of what I said on the BBC in order to confirm that it was really me who said the words and that it was really ReChem I referred to. I suppose it was to ensure that it wasn’t someone posing as me on the radio, or that the BBC hadn’t altered what I said electronically. None of those things had happened, so the defence began with the formality of admitting that it was really me who spoke the offending words.The next bit was more interesting, because it related to Rechem’s interpretations of my comments. After first denying that the more serious meanings could reasonably be drawn from my comments, the defence neither sought an excuse of fair comment, nor limited itself to the bare necessities for arguing the “justification” of what I said. The argument grew into a body of support for the more serious meanings imparted to my words by ReChem.Attention to the semantic limitations of the actual words I had spoken became superfluous as the defence document made my BBC comments appear to be just the tip of an iceberg.I was delighted with the legal work that had been done and after making adjustments to some technical aspects, the legal “particulars”, included the following:
The Pontyfelin plant is situated at the bottom of a valley and is surrounded by other important valley industry and residential areas. The majority of the nearby housing areas are located at a higher level and downwind of the plant (according to the prevailing wind). In adverse weather conditions the area suffers from frequent atmospheric inversion conditions where pollutants are held in the confines of the valley and may not disperse properly.
The original intention for the Pontyfelin Plant was that it would deal with industrial wastes from South Wales and the South-West of England. It is now a major importer from world-wide sources of toxic waste including PCBs (polychlorinated biphenyls) The Plaintiff processes PCB waste from the UK and approximately 500 tonnes of imported PCBs per month.
On or about 23rd August 1988 a fire took place at St Basile-le-Grand, Quebec, Canada, in a warehouse in which more than 35,000 gallons of liquid contaminated with PCBs was stored. It was necessary to evacuate 3,000 local residents. By a letter dated 31st January 1989, the Office of the Minister of the Environment for Canada, wrote to the defendant that “The PCB contaminated remains of the fire in the storage facility in St Basile-le-Grande will not be exported from Canada . . .” Notwithstanding these assurances, the Canadian Authorities agreed with the Plaintiff that the 1,500 tonnes of PCB contaminated material from St. Basile-le-Grand would be shipped to the UK in weekly consignments of about 100 tonnes, for incineration at the Plaintiff’s plant at Pontyfelin, South Wales. On or about August 1989, the first consignment was dispatched aboard the “Nadezdha Obukhova”. Permission to unload the consignment was refused at a number of British ports. Members of the Transport and General Workers Union would have refused to handle the load. This and a second consignment dispatched aboard the Kudozhnik Repin were returned to Canada. No other consignments were sent.
The next section in the draft defence provided the chemical background:
Polychlorinated biphenyls (PCBs) are a range of 209 chemicals which, because they are thermally stable, resistant to oxidation and have good dielectric properties, have a number of useful applications, principally in electrical equipment and hydraulic fluids. However, there production has ceased throughout the world following concern about their toxicity and about the growth of PCB contamination of the environment on a global scale. Production of PCBs in the UK ceased in 1977. Since 30th June 1986 almost all new uses and supplies of PCBs have been banned by the Control of Pollution Act (Supply and Use of Injurious Substances) Regulations 1986. PCB contamination has been implicated in a wide range of animal defects, in the wild and in the laboratory. They are proven animal carcinogens. PCBs have a number of harmful effects on humans. They have been shown to cause eye discharges, chloracne reproductive dysfunction and miscarriages. They are suspected human carcinogens. Research is continuing into their harmful effects on human health. When PCBs are burned together with their chlorinated benzene solvent, they produce they produce, as by products, polychlorinated dibenzo-para dioxins (“dioxins”), which are a group of 135 closely related chemicals, and polychlorinated dibenzo furans (“furans”), which are a group of 210 closely related chemicals. Many of these compounds are highly toxic, the most toxic being 2,3,7,8 -TCDD. Dioxins and furans are not produced intentionally. They have no known use. They are formed as unwanted by products in various combustion processes including waste incineration.
We were probably correct about dioxin having no known uses at the time although we weren’t to know what applications lay ahead. A sinister use for dioxin may have arisen in the poisoning of Ukranian opposition leader Victor Yushchenko before the 2004 presidential elections. My 1990 defence continued:
Dioxins and furans are undesirable and potentially harmful chemicals. In laboratory animals, 2,3,7,8-TCDD has been shown to affect the immune system, the reproductive system and to be a carcinogen. Research is continuing into to the harmful effects of dioxins on humans. The Central Directorate of Environmental Pollution at the Department of the Environment produced a report in 1989 entitled “Dioxins in the environment” which includes a statement from the Toxicity of Chemicals in Food, Consumer Products and the Environment as to the Human Health Hazards Statement of dioxins and furans (“the Dioxins Report”). That report prescribes levels of consumption of 2,3,7,8-TCDD at which there may be adverse effects in humans at 60 picograms per kilogram of bodyweight per day (immunotoxic effect): 1 picogram per kilogram of bodyweight per day (reproductive effect) and 10 picograms per kilogram of bodyweight per day (carcinogenic effect). It recommends the lowest level, 1 picogram per kilogram of bodyweight per day, as a guideline value, which if exceeded should trigger investigation and measures to reduce environmental levels generally. There a grounds to believe that the daily intake of dioxins and furans by the UK population may be above that level.
This last statement reminded me of a philosophical difference between my attitude and that of the lobby from the chemical industry. If we were all getting more than the recommended level of dioxin from everyday exposure, then surely it was sensible to wish to eliminate the possibility of additional dioxin coming from the incineration plant. Indeed, the government’s ‘Dioxins Report’ did recommend that measures should be taken to reduce dioxin inputs to food, consumer products and the environment. In contrast, chemical industry protagonists seemed to exploit the pre-existence of dioxin contamination, by promoting the idea that since dioxin was ubiquitous we shouldn’t worry about having a little bit more.
The ‘Dioxins Report’ focussed on the one form of dioxin considered to be the most harmful, the 2,3,7,8 TCDD variety.It’s almost certain that the intake of 2,3,7,8-TCDD would be accompanied by the intake of other dioxins, all with varying degrees of toxicity, so that the consideration of consuming one form alone was inadequate. Already, elsewhere, a new approach was being developed so as to take account of all dioxins, furans and eventually PCBs too, in a clever measure now known as the Toxic Equivalent or TEQ. By this, each of the hundreds of related chemicals was given a weighting when compared to the toxicity of 2,3,7,8 TCDD. The concentrations of all those chemicals present in a sample could be adjusted by their weightings, then aggregated to form a total Toxic Equivalent to 2,3,7,8-TCDD. In 1991, The UK’s advisory Committee on Toxicity agreed to these principles and adopted the world Health Organisation’s recommend maximum daily intake TEQ level of 10 picograms per kilogram of bodyweight.Even that turned out to be too lax. By October 2001 and too late for me, the increased knowledge on the subject had seen-off the swaggering stance of some in the industry and COT had reduced its recommended figure to 2 picograms. Unavailable in my time, the following summaries were provided in COT’s 2001 statement on the tolerable daily intake of dioxins and dioxin-like PCBs.
79. We conclude that dioxins and dioxin-like PCBs have the potential to cause wide range of adverse health effects. The health effects most likely to be associated with low levels of exposures relate to the developing embryo/fetus.
80. We recommend that a tolerable daily intake of 2 pg WHO-TEQ/kg bw per day is established, based upon effects on the developing male reproductive system mediated via the maternal body burden.
81. We consider that this TDI is adequate to protect against other possible effects, such as cancer and cardiovascular effects.
82. We note that the most recent intake estimates for the UK population are 1.8 pg/kg bw/day for the average consumer and 3.1 pg/kg bw/day for the 97.5 percentile consumer and that dietary intakes are decreasing.
83. There are no short-term measures that can be used to decrease the body burden of dioxins and dioxin-like PCBs in humans because of their long half-lives and widespread presence at low levels in food.
84. Similarly, because of the long half-life, short-term exceedances of the tolerable intake are not expected to result in adverse effects. Nevertheless, it is not possible to identify a duration and degree of exceedance at which adverse effects might occur.
85. Finally, we confirm our previous advice that, although intakes of dioxins and dioxin-like PCBs by breast-fed babies are higher than is desirable, encouragement of breast-feeding should continue on the basis of convincing evidence of the benefits of human milk to the overall health and development of the infant.
Without such futuristic support, but after introducing the then known theoretical dangers of dioxins, my defence moved towards the incinerator and its surroundings, stating:
The principal means by which dioxins and furans enter the environment is by emission to the atmosphere from combustion processes and subsequent aerial deposition onto soil, water and plants (including grass and other plants). Dioxins and furans adsorb to soil and organic matter where they can stay for years, due to their stability and resistance to biodegradation. Although plants tend not to take up dioxins from the soil, grass and crops may become contaminated with dioxins (by aerial deposition). They are then eaten by grazing animals which ingest plants and soil. Dioxins and furans are absorbed via the digestive tract and accumulate in fatty tissues, where they remain. Humans may consume dioxins from meat, milk, fish and eggs. They may also inhale airborne dioxins, or take them in by skin contact.
The next section began by emphasing the Committee on Toxicity’s aim that: “that action should be taken to identify the major sources of dioxins and furans and that measures should be taken to reduce inputs to food, consumer products and the environment.” To contrast with that aim, shortcomings in regulation and monitoring were set out like this:
There are no current specific limits on the emissions of dioxins to the air, in part because of the financial impracticability of continuous or frequent monitoring of the substances which incineration may generate. Nor are there specific limits for the levels of PCBs, dioxins or furans in solid waste generated by incineration although the plaintiff’s liquid effluent does have discharge limits for PCBs imposed by Welsh Water Authority. The Plaintiff, in common with all operators of high temperature incinerators and other plants, is subject to the general obligation to use the “Best Practicable Means” to prevent the emission into the atmosphere of noxious or offensive substances.
It was around this principle that my defence of “second rate” would hinge.The incineration plant was officially judged to be using the ‘Best Practicable Means’, but using the best practicable means was not the same as using the best means available. I knew that where detailed regulations for a specific process did not exist, a company was required to do the best it could without going to disproportionate lengths. There was sense in this philosophy, as it gave industry time to plan and to finance improvements, but it wasn’t meant to justify a denial that improvements were needed. To my mind, ReChem and the regulators were using the Best Practicable Means guidance too loosely. Rechem tended to view their technology as beyond reproach, leaving me the task of proving that the Pontypool incinerator was not as good as it could be. Of course, the question in my mind was whether the High Court would be persuaded to see beyond British borders for comparisons of technology and process standards in an era when Britain was not taking any lessons from Europe.My defence continued with a regulatory theme:
Her Majesty’s Inspectorate of Pollution (“HMIP”) exercises supervisory jurisdiction over chemical incinerators. However, HMIP does not carry out continuous monitoring of the level or nature of emissions produced. There are very few inspectors.
After that understatement about national regulation, the text turned to the ludicrous position which Torfaen Borough Council found itself in:
The local authorities do not have sufficient powers to monitor chemical incineration plants effectively. Local waste disposal authorities licencing powers under the 1974 Control of Pollution Act are limited. There is no power to require a chemical incineration plant to operate its business in such a way that no nuisance is caused to local inhabitants.Nor is there any requirement for a local emergency plan in the event of an accident or emergency. The defendant contends that there are insufficient regulations governing the emission of toxic chemicals into the environment, nor is there satisfactory supervision of such emissions.
The chemical nature of most factories, including chemical production plants, was necessarily restricted to the intake and output of a limited range of materials. In contrast to that, through the gates of ReChem went an amazing array of chemicals as well as things such as dead zoo animals and radioactive substances. There was also a suspicion about chemical and biological weapons material, with rumours of a Porton Down connection. Several ingredients could be burning simultaneously in the incinerator and it would surely be impossible to identify every compound capable of being could be formed in a multitude of chemical reactions, let alone to monitor for them all. For the compounds that were most concerning there were two snags - and these snags would have suited ReChem. The detection of those ultra-toxic substances at the levels considered significant was an activity right at the frontiers of science, hence it was very expensive. ReChem’s pioneering hazardous waste incinerators had arrived before there was a complete understanding of the chemistry and even when that understanding arrived, the process was protected by the practical difficulties in measuring the obscure chemical products.
The defence then moved away from the plant and its accompanying regulation, towards emissions from the incinerator, with:
The plaintiff claims that its incineration process is efficient to destroy 99.9999 percent of PCB material (though has not always claimed this). Even if such a rate of efficiency is achieved consistently (which is not admitted), even 0.0001% of residual PCBs is a significant amount to enter the environment.
I had worked on the basis that 7,200 tonnes of PCB waste per year could contain perhaps 2,400 tonnes of neat PCBs, of which 0.0001% equalled 2.4kg. The residual PCBs could be shared between the air, the sewage and the solid residue, but even at the claimed efficiency, year on year the persistent PCBs could build up in the environment as could dioxins and furans. The claimed destruction efficiency itself was then challenged with:
PCB residue can be emitted into the environment from the chimney stack, or will remain in the ash left in the incinerator or will be washed out in the effluent. In order to produce an efficient rate of destruction of PCBs, temperature in the incinerator must be maintained at a very high level. Any drop in temperature will result in a lower rate of destruction of PCBs and a higher risk of the release of toxic substances into the environment. The defendant contends that there are grounds to fear that sufficiently high temperatures will not be maintained uniformly.
When I said “second rate activity sitting in a in a second rate regulatory system” my opinion was based on not just what I saw of the incineration process. It extended far beyond the incinerator and continued into the transportation of toxic waste over vast distances by land, sea and indeed air. It included the packaging and identification, as well as the storage and handling of waste at the plant, and the defence continued:
There is a risk that toxic material will be released into the environment during the shipment and handling of PCB waste during transportation from other countries to the Plaintiff’s plant in the UK. The risk of an accident cannot be eliminated when such materials are handled in such large quantities and transportation safeguards are insufficient. . . . . further, there is a risk that PCBs may escape from ancillary processes to the incineration. For example, large transformers are taken in, the PCBs are drained off and units are cut up for incineration. There are no specific controls on ventilation systems in buildings where these ancillary processes take place.
The point about ancillary processes was vital. I had no basis for quantifying amounts, but I was prepared to bet my shirt that, even if there had been zero emissions of toxic chemicals from the chimney stack, there were chemicals being released from the activities beneath it.I was also sure that if the construction of Rechem’s plant had been proposed years after it had been, one of the main objections would relate to the disaster risk presented by so many different hazardous materials at the site, particularly in the light of disasters at Seveso in 1976 and Bhopal in 1984. The visible view of the Pontypool plant with the stacks of drums and tanks of chemicals, with its furnace spurting out flames, and with thousands of homes nearby, was one I found almost inconceivable. On the other hand, the theoretical risk of outright disaster at ReChem was continually overshadowed by the misery of smell and smoke. This section of my defence began with a general statement about accidents and then went into considerable detail as a result of my access to the company’s leaked accident reports, which journalist John Sweeney had obtained prior to writing his Pendennis articles.
No matter how efficient the system operated by the Plaintiff, the risk of environmental contamination following technical error or breakdown, human error or accident, cannot be eliminated. Large quantities of PCBs are stored at Pontyfelin. A fire on the site could lead to wholesale contamination of the local environment. The defendant contends that the risk of accident at the Plaintiff’s Pontyfelin plant (which cannot be excluded). In the following paragraphs, the following definitions are used:
“accident” means an unplanned or unpremeditated mishap which occurs to an employee whilst engaged at his normal employment on the Plaintiff’s premises. “Injury” to an individual is categorised as “A” (minor and treated on site) “B” (significant and treated on site) or “C” (requiring treatment off site and possible hospitalisation) A “lost-time accident” is an accident which results in an injury which causes an employee to lose time from his employment beyond the day or shift on which the accident occurred. A “dangerous occurrence” is any incident which is considered sufficiently dangerous to warrant investigation because of its potential to cause injury to person or damage to plant, equipment or structure whether or not injury or damage occurred.
In 1980 there were 159 accidents, 78 at Pontyfelin, 39 at Roughmute and 42 at Fawley. 126 were category “A”, 10 category “B” and 23 category “C”. 20 resulted in lost time, 8 at Pontyfelin, 5 at Roughmute and 7 at Fawley. 2509 hours were lost due to industrial injuries, 2369 of these being due to lost time accidents: 516 hours at Pontyfelin, 761 at Roughmute and 1092 at Fawley. There were 10 “dangerous occurrences” at Pontypool, 5 at Roughmute and 2 at Fawley (17 in all)
In 1981 there were 111 accidents in total, 44 at Pontyfelin, 33 at Roughmute and 34 at Fawley. 97 were category “A”, 3 “category “B” and 11 “C”. 6 at Pontyfelin were “lost-time accidents”, 3 at Roughmute and 1 at Fawley. 994.5 hours were lost owing to industrial injuries, 10 accidents resulted in 804.5 hours lost: 567.5 at Pontyfelin, 197 at Roughmute and 40 at Fawley. There were 6 dangerous occurrences at Pontyfelin, 5 at Roughmute and 4 at Fawley.
In 1982 there were 152 accidents, 60 at Pontyfelin, 47 at Roughmute and 46 at Fawley. 131 were category “A”, 8 category “B” and 14 “C”. 10 resulted in lost time, 2 at Pontyfelin, 4 at Roughmute ant at Fawley. 501 hours were lost in total due to these accidents. There were 16 dangerous occurrences at Pontyfelin. 11 at Roughmute and 7 at Fawley. 501 hours were lost in total due to these accidents. There were 16 dangerous occurrences at Pontyfelin, 11 at Roughmute and 7 at Fawley.
In 1983 there were 129 accidents, 47 at Pontyfelin, 46 at Roughmute and 36 at Fawley. Of these 123 were category “A”, 2 were “B” and 4 were C. 5 were lost time accidents, 2 at Pontyfelin, 1 at Roughmute and 2 at Fawley. There were 24 dangerous occurrences, 12 at Pontyfelin.
Clearly, the Pontypool plant (Pontyfelin) didn’t come out well in the reports. I regarded the figures as staggering in comparison with the industry I’d been in, which itself bustled with overhead cranes, fork trucks, rolling mills, powerful presses, high speed slitters, cut-up lines, chemicals and molten metal, but which was nowhere near as accident prone as ReChem’s Pontypool plant appeared to be. What was even more alarming about ReChem’s figures was that so many of the accidents were not connected with moving machinery, but involved loss of control over chemicals. My defence contained 10 pages on the relevant accidents, including these further extracts from ReChem’s own reports:
20th February 1980: the take-off pipe broke below the main take-off valve and material spilled onto the ground.
5th March 1980: a violent Ni/cyanide reaction in pit F.
7th March 1980: a violent Ni/cyanide reaction in pit G – lid blown off.
19th March 1980: safeway tanker sight glass broke at top and area sprayed with acid.
29th April 1980: chemical reaction caused fire in pit F – site evacuated.
13th May 1980: operative lifting capacitor from drum – greasy – slipped from his hands and he received slight burns to his face.
20th May 1980: operative took shower – caustic in domestic lines – received light burns to face and neck.
24th June 1980: small gas cylinders exploded in incinerator.
2nd July 1980: Fireball effect from Sakab drum in Cell 2.
8th December 1980: explosion in ducting from fan 20 – caused by low flash point vapour dribbling back into ducting – ignition of TI support fuel cause explosion of solvent vapour/air mixtures.
The defendant will rely upon the Plaintiff’s Safety Report for 1980. That report notes that occurences1 and 4 above show that accidents can be caused by equipment not under the Plaintiff’s control. The report notes also that there is an inherent risk both to health and safety from the operations carried out by the Plaintiff. The report contains a recommendation that supervision be tightened up at all three sites and that employees receive more training continually to enforce procedures that have been compiled in order to reduce the number of accidents. Accident rates at the Plaintiff’s plants in 1980 were three times worse than the chemical industry as a whole and nearly four times worse than all other manufacturing industry.
The next three years of accident records showed a patchy improvement overall, but the “dangerous occurrences” at the Pontypool plant in 1983 were actually more numerous than in 1980. The list continued:
12th February 1981: 9 x 5 gallon drums (material not stated) fed to cell 1 – drum well ventilated – sudden explosion and flames ejected.
16th February 1981: Fork truck reversing out of bay 1 of CTA – mast hit high lintel and brought both lintel and brickwork down. This accident was due to human error, the lack of attention of the driver.
7th April 1981: 45 gallon drum of waste oil with phosphate ester – one third of liquid, two thirds of jelly-like material in cell 1 for two minute – violent explosion – bottom of drum blew off.
12th May 1981 Tanker discharging under pressure to tank 10 – filter valve opened then closed as a check-hose parted from tanker coupling and small area sprayed with solvent residues and two persons overalls soaked.
17th July 1981 Sodamide material being burnt in incinerator when sudden explosion. This accident was reported to HM Factory Inspectorate under the Notifification of Accidents and Dangerous Occurrences.
2nd November 1981: Penn Chemical water went onto Sakab sludge on floor of Cell 1 – explosion.
The Plaintiffs frequency rate for lost time accidents was four times worse than the chemical industry. The defendant will rely upon the Plaintiff’s Annual Safety Report for 1981.
The mention of the Factory Inspectorate in the report reminded me of a recurring theme in the complexities of regulation. Most, if not all of the accidents listed would have been the province of the Factory Inspectorate rather than the Pollution Inspectorate, in looking after the health and safety of people inside the fence. It was the Pollution Inspectorate who attended to the environment and the public outside, yet because of the separation of the two Inspectorate’s roles I doubted whether the external implications of internal incidents were fully considered, even though accidental releases of chemicals would impinge on the environment and would have implications for the quoted destruction efficiency of the incinerator. I felt that this bureaucratic demarcation often got the better of common sense and that the presence of the Factory Inspectorate actually produced a barrier to the Pollution Inspectorate’s protection of the public. The catalogue of accidents and the defence’s assertions continued:
21st February 1982: operator working inside cell 3 of incinerator removing loose rubble. Stepped outside while fork truck raked-out, when a 12” x 12” x 9” piece of refractory (100lb approx) fell out of the roof.
1st march 1982: tanker containing Me sulphate was to be offloaded to tank 1A. Pump 4 used to offload but due to piping configuration, it was not possible to isolate other lines, resulting in a mixture of Me Sulphate and fuel being pumped to tank 1A and the tank level was exceeded such that mainly fuel overflowed from tank 1A
8th April 1982: incinerator pressurised due to damper remaining in fully closed position even when second door was opened. Malfunction of automated controls.
20th April 1982: fitter sprayed in when he broke line to solenoid valve due to blockage in or above valve, because lint configuration did not allow complete drainage from drain point – burning effect to face.
30th April 1982: front, nearside wheel of fork truck went into hole in concrete in front of cell 1, causing pallet on forks to tip and small amount of already ignited waste to drop to ground with resultant small fire.
21st May 1982: tanker offloading to tanks 1A and 1B- valve on tanker passing causing spillage of toluene, when end cap removed from end of off-loading line of tanker – operator splashed.
30th June 1982: repeat of the dangerous occurrence on 21st May. Valve not repaired or replaced.
2nd July 1982: whilst cyanide reaction being carried out in pit, contents suddenly overflowed and continued for some time, spilling onto floor.
29th July 1982: Tanker offloading hose pressurised when pumping against a closed valve – hose blew and contents splashed driver with acid.
29th July 1982: whilst using two fork trucks to offload a transformer from a flatbed, lighter forklift tipped forward causing transformer to fall off, hitting ground and spilling PCB. Proper supervision should not have allowed the practise of using two forklift trucks, which were not identical or capable of carrying the same load. The correct equipment should have been used to offload flatbeds.
8th September 1982: Operator put 3 cardboard crates of plastic container into cell 1 – fourth crate put in contained 45 gall. Drum with 40kg of acetic anhydride in it – the drum blew and contents expelled through door of cell and caught fire on concrete.
27th September 1982: operator transferring caustic from reception tank via pump to tank 17 opened valv