25. Decimating my Defence
I highlighted the many aspects of the Welsh Affairs Committee report that were useful for me and I annotated it with the references needed to relate it to my defence document. I sent it on to Sally, saying that after our setbacks, I believed I had now got to a better position than when I received the writ.With Torfaen Council’s efforts having been brilliant for me, as the summer progressed I found an ally in another local authority. Torfaen’s neighbour, Newport Borough Council, together with Newport West MP Paul Flynn, entered the waste importation affair. It happened in July when an accident on the River Usk came to light. The accident involved the container ship the Bell Ranger when it was heading for Newport’s Bell Lines terminal and which was, at first, reported to be carrying only lard. It collided with a Greek bulk cargo vessel, the Morias. After the news of the collision broke it filtered through that a container of pesticide waste was on board the Bell Ranger.
ReChem initially denied any connection with the containers on the container ship but a few days later the company admitted that the pesticide waste in the damaged container was, as most people suspected, bound for Pontypool. Paul Flynn took the matter up with the Government, but despite there being photographs of dents in the ship and a torn-open steel shipping container, he was assured by the government’s Transport Minister that no damage to any containers had occurred. In the House of Commons, Pontypool’s Paul Murphy pledged that a future Labour Government would end the commercial trade in toxic waste. England soon entered the importation controversy, though in a more parochial way. When pharmaceutical waste found its way from the north of England to the South, junior environment Minister David Heathcoat Amory suddenly became a rare conservative suddenly opposed to waste tourism, even within the UK. That was the kind of enlightenment which came with being on the wrong end of waste. It had always been my belief that if London, not Pontypool, had been the target for foreign PCBs, the whole importation affair would have been over quickly.As it was, London received only our protests about PCBs when we returned to the capital in July to target the embassies of Switzerland, Sweden, Netherlands and Italy. The Netherlands’ honest excuse for shipping so much waste to us at was that they cared a lot for their own environment but not so much for ours, whereas the uncomfortable, aggressive and irrational Italian response was indicative of hidden embarrassment.
At the beginning of August, eight months after the inquiry of The Welsh Affairs Committee and nearly two months after its recommendations were made public, the British government spoke.The response didn’t emulate the previous, politically correct platitudes. Welsh Secretary David Hunt announced that he would, as requested by the Committee, authorise an independent scientific investigation for reasons that coincided with the views of the Welsh MPs. Coincidentally, the announcement was made on the same day as news from Harwich, where leaking drums of Pontypool-bound acrylonitrile waste caused the fire service to seal-off part of the east coast port. Said to be one factor influencing David Hunt’s decision launch the investigation was the history of public concern over the Pontypool plant and another influence was the uncertainty that surrounded the results of recent testing. He was careful not to imply that contamination had yet been proven and he revealed the appointment of Professor Lewis Roberts, to oversee the investigation. The South Wales Argus had a field-day with all aspects of the government’s decision, recapitulating the history of the controversy and mentioning its own contribution towards the government’s decision. A slight blemish to my own delight about the investigation announcement was the appointment of the overseeing professor who was a man prominent in the area of risk assessment, which I knew to be a field with movable goalposts.
Back at the incinerator, the most memorable news contribution made by ReChem in the summer of 1990 was another explosion, which resulted in the company’s refusal to allow the Council access to a report about exactly what had happened. July’s incident certainly scared residents but it didn’t appear to concern the company or the Pollution Inspectorate as much. Rechem eventually admitted that the explosion led to administrative changes on site, but we never knew what substances were involved and Torfaen’s environmental head, David Thomas, angrily called for changes to the law. Appropriately, in September, the European Commission made its presence felt when Dr. Ludwig Kramer reported progress in relation to Rechem’s exemption from hazard regulations, before the Commission’s Dr. Edward Bennet came across to meet the Council, the campaigners and others in Pontypool. Between those two events the publication of new joint monitoring results, based on samples taken in March, reiterated the rising trend in PCB concentrations. However, because the government-sponsored investigation was now in the driving seat, no amount of data from the existing research programme would be able to change anything. The prospect of the investigation discouraged any premature conclusions about contamination. Other figures showed that the past year’s hazardous waste imports, of 9,000 tonnes to Rechem, amounted to more than 20% of the UK's total intake, confirming that Rechem was not just strategically important for British industry. Local sensitivity to chemicals spread a little further afield in October with the nightime evacuation of around 100 people from their Caerleon homes, though this wasn’t because of ReChem. Leigh Environmental’s small, inorganic chemical waste processing plant experienced a mishap which sent a cloud of toxic fumes into the nearby housing estate. It pushed the Pontypool plant out of the headlines for a few days, before Rechem’s incinerator soon reclaimed its position in the news with another fiery and smokey explosion that underlined the need for emergency planning rules.
When the “leper-ship” Zanoobia returned toxic waste to its Italian home after two years touring in 1988, I should have made a bet on ReChem’s eventual connection with the unwanted cargo. In the autumn of 1990, with rumours abounding and ReChem under pressure from the press, the company admitted to taking five consignments of Zanoobia chemicals and in a way emulating the Karin B scenario. In the busy month of October we steered our own campaign’s wanderings away from ports and embassies towards the home of ReChem’s highly successful and monied managing director, Malcolm Lee. It was a popular trip and before reaching beautiful Beaconsfield in Buckinghamshire, our coach stopped-off for a demonstration at the company’s head office in High Wycombe. On arrival at the M.D.'s impressive home we found him with guests, in his grounds. Our travelling community conducted a raucous but good-humoured and tuneful protest within hearing distance of the garden gathering and we must have made our presence felt because the police soon arrived. They seemed surprised by the nice nature of the protest and staggered by the motley composition of our coachload. As in our many encounters with police I relished the challenge of getting them over to our side. This wasn’t difficult to do as our group must have been endearing to anyone, with mothers and toddlers, grandmas and grandads and not an ounce of malice in anyone’s face. It was also clear that the police would have practical difficulties in taking us all in. They recognised that we were up to no real harm, accepted that we would soon be leaving peacefully and they left us alone to finish our demonstration.
October’s personalised protest was memorable, and so was the publication of the Government’s promised Environmental Protection Bill, but that Bill was memorable for the wrong reasons. As anticipated, the proposals that were expected to put pressure on waste did so to the benefit of incineration. Then to reinforce the bullish trend towards burning, the right-wing public service think tank P.U.L.S.E. published a 52 page pamphlet promoting incineration as the only safe and effective method of disposing of toxic waste. One of the Pamphlet’s authors was Friend’s of the Earth Founder, Graham Searle, who ReChem had taken on as a non-executive director and who I thought I had spotted in the garden of Malcolm Lee’s home during our visit. Also in October, we didn’t overlook the opportunity to have a demonstration without having a long coach journey. In connection with the river Usk waste container ship collision, and not for the first time, we went to Newport’s Bell Lines container dock for an enjoyable outing at the riverside.
In November, as ReChem’s new incinerator in Fawley was due to begin operating, and whilst the Welsh Office’s independent investigation was still on the drawing board, a third set of test results in the joint monitoring programme was published by Torfaen Council. Torfaen’s figures were closing in on ReChem, consistently revealing a pattern of high PCB levels near to the plant but Rechem’s own results for contamination were again much lower than Torfaen’s. Around the same time, a deviation in contamination arose with news about the river alongside the Pontypool plant. ReChem appeared to be using the occasional flooding of the Afon Llwyd as a potential explanation, suggesting that the company’s own tests revealed PCBs in the river water.That distraction ended abruptly when a spokesman for the National Rivers Authority, who had also undertaken regular tests for PCBs in the river, said ReChem’s inference was a bit of a mystery. Before the year ended, a matter now becoming less contentious than ReChem’s role in contamination was that of a different incinerator’s connection with cattle deformities and deaths, as well as with ailing human health. In Ireland, and ten years after John and Mary Hanrahan began their action against Merck Sharpe & Dohme over their Tipperary Farm, the Irish Supreme Court overturned an earlier High Court ruling and now awarded substantial damages to the Hanrahans. Unfortunately damage to the farmers’ health and animal ailments persisted. On the other side of the Irish Sea a Scottish farm’s action, against ReChem’s closed-down Bonnybridge incinerator, was moving towards another marathon encounter in court.
South of the border and after the elation brought by the report of the Welsh Affairs Committee, my own case was stuttering again. For the first time in the year which had passed since I received the writ, I went to London to meet my solicitor. Communication so far had been done at long distance and most of it on paper. The purpose of my trip was to visit a Gray’s Inn chambers with Sally, to meet barrister Heather Rogers who would oppose my opponent’s formal challenge to my defence. During the discussion I got the impression from Heather that my scientific technicalities were going to be difficult for the legal system to digest. Following my discussion with Sally and Heather, it came as no surprise to me when my opponent’s request to strike out material from my defence succeeded. At least the process soaked up some time and it didn’t amount to a knockout blow. When I saw the Court judgment on the striking out I couldn’t completely penetrate the mysteries of the legal language but I could tell that the main body of my defence, or the “Particulars” had been decimated. Although we hadn’t exaggerated the extent of our agreement with Rechem’s interpretations of my comments, it appeared to the Court that my defence amounted to an even graver denouncement of Rechem than the writ itself had alleged and, apparently, that was not allowed. I didn’t see the sense in the judgement of High Court Master, for if we could justify worse criticism than had been complained of then, logically, any lesser degree of criticism would be justified. I knew that it was conventional for a libel defendant to try to deflate the complained of comments rather than to re-assert, amplify and expand them as we were doing, but I didn’t see why we shouldn’t.Yes, I was bothered by the striking-out, but not seriously so, since if we needed to tone down the defence, that too would soak up time. Sally suggested we could conveniently go about that but that we would, anyway, lodge an appeal against the striking-out since she and my barrister also believed that the judgement was legally incorrect. I needed to understand that the appeal would probably be unsuccessful but I was content to take that in my stride. What was far more worrying than losing a lot of my defence was a small section of the text of the courts striking-out judgement, in which the Master stated:
I should say something about the Particulars. They are of immense length, are highly prejudicial to the Plaintiffs, and are largely irrelevant. They would lead to a process of discovery which would render the action untriable”
Yes, it was a long and complex defence, containing technology, chemistry and toxicology, but those technicalities were major driving forces in our campaign, they were causes of the Canadian waste controversy and they were certainly behind my complained-of comments on the “World Tonight”. Now they were said to be too difficult for the libel system to deal with and were somehow regarded as irrelevant anyway. The Master was correct in way, for discovery could unveil an almighty can of worms - but that was the nature of the whole affair. I was concerned that the libel system may eventually turn out to be too ancient to cope with a case like mine.Just as I was aware that science had not caught up with incineration, I could now see that the libel laws had not caught up with science. Nevertheless, I revisited the defence enthusiastically to polish it up in preparation for the worst and then, as I saw it grew even longer in its re-invented form, I became privately pleased that the Court was going to be disappointed with the attempt to dumb it down.
Although the striking-out setback was a shock about the system we were in, in essence I remained undeterred simply because I had already accepted that it wasn’t the High Court I would ultimately rely on. Torfaen Council was still testing, the big scientific study was in the wings, the incinerator was being conspicuously troublesome, Europe was moving along a number of regulatory avenues towards the restriction of Rechem and I still had the site contamination memos up my sleeve together with the full story behind them. All I wanted was the time for more developments out of court. As for now, as incineration trials were setting records for time in other courts, I assumed that lawyers were finding incinerators as the rewarding as the businessmen behind the burners were. Approaching the end of the year I was only too aware that of all the things anyone could choose to criticise, toxic waste incineration was one of the most likely subjects to lead to the libel court.
What happened after the striking-out judgment was amazing. A few weeks after the defence hit difficulties, Sally confirmed the precise degree of damage done and at the same time incongruously said that a proposal for a settlement of the case had been thrown into the ring. ReChem had recently settled two actions against Channel 4 TV in exchange for lengthy written capitulations. Apparently there was a similar offer available to me and it would mean the company would not have to expose itself to the “discovery” process.Whilst it was a relief that even if costs would still being sought from me then the more severe financial demands of compensation might be dropped, the offer to settle on the company’s terms wasn’t remotely attractive. I believed that an apology from me was worth more to ReChem than the money and anyway I could have avoided the writ and a year’s hassle by apologising in August 1989. I didn’t give the offer a moment’s thought. There would be no retraction and no apology from me. All others before me had given in and every time that happened the fear of ReChem increased and the debate degenerated. Apart from the influence on the media, if ReChem could brandish my apology it would be devastating for the public campaign.However, I was worried that the newly proposed quick and relatively inexpensive way out of the predicament would be attractive for my legal advisors, since they might not understand the social repercussions. In addition I needed to consider my sponsors, Greenpeace, and what would be best for them. For me to continue fighting at their expense, when I had a chance to slip out, could be reckless. Sally’s sensitivity was sensational and my anxiety was soon over. Instead of advocating settlement she showed enormous appreciation of my personal convictions. In a letter explaining the options, Sally read my mind, seemed to know what my decision would be and didn’t attempt to influence me towards any form of agreement in favour of ReChem. Our rebuff of the company’s offer meant that that the court case entered a much longer phase.
In 1985 Rechem had been bought from B.E.T. for £1.6 million. When floated in 1988 it was worth over £50 million and rose through the controversy to be valued at more than three times that figure. By the December of 1990 the company had become more deeply embedded in controversy and along with that Rechem appeared to become more adversarial, more resistant to criticism and even more confident in its future. The Market’s assessment of that future was re-instated and waste landfill giant Shanks and McEwan took over Rechem with a £172 million acquisition. It made Rechem’s management a fortune. Naturally I didn’t share Shank’s confidence in ReChem and, with a new prime minister in Britain plus detailed proposals for waste shipments regulations now being passed to the Council of Ministers in Europe, I wondered why the company’s prospects appeared so attractive to the new owners. Intrigued about Shanks’ plans for ReChem, I became a shareholder.Unfortunately my own pessimism about the continued success of incineration was deflated when there were indications signs that Shanks had done their homework. That was when Western Australia renewed its restlessness about the state’s stockpile of toxic waste.After exchanging information with Wahgunyah vet Barbara Blakey, who was a campaigner against a proposal for an incinerator on the eastern side of Australia, I could guess what was about to happen.
During the Christmas holiday in 1990 the correlation between complaints about ReChem and the Caldicott family’s time at home was confirmed. Three separate incidents, on Christmas Eve, Christmas Day and Boxing Day produced firstly a large bang, a huge cloud covering the area and then chlorine which choked the air. This time nobody blamed the Caldicott’s for complaining. During the festive holiday period the Pollution Inspectorate’s office was manned by an answerphone and a spokesman subsequently cemented our cynicism by issuing a statement to the effect that the Inspectorate was not an emergency service and would have no role in any incident or accident.It must have been even less comforting for local residents when ReChem said that the company itself should be the point of contact in such circumstances. When Margaret Twinam once phoned the plant to complain, she was told they didn’t know what was being burned and another caller received the response, “Sid the squid speaking”.The question now on everyone’s lips was of whether anything would change, or if it would be more of the same from the new owners, Shanks & McEwan. In that respect, my particular interest lay around the attitude of the giant waste company towards Rechem’s old enemy and his writ.