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Has the Environment Agency obstructed the course of justice?

Jon Hughes

26th October, 2007

A ruling in the US courts at a meeting which the Environment Agency claims never took place has dashed all hopes of making Monsanto pay up for polluting Brofiscin quarry in Wales. Is the Agency guilty of obstructing the course of justice? Jon Hughes investigates

The five-year long legal wrangle over who should pay for old Monsanto’s environmental legacy liabilities ended on Friday, October 19, 2007 New York time, where some $2bn was divvied up between creditors of Solutia Inc. That date will haunt Viscount Chris Mills, Regional Director of the Environment Agency Wales, for the rest of his life. Just 24 hours earlier he openly denied that the hearing on the 19th was taking place in the United States Bankruptcy Court (USBC), in an email he sent to over 36 respondents. Yet in April, Viscount Mills was placed in charge of protecting the UK interests in that Court by the Environment Agency CEO, Baroness Barbara Young.

At the US Bankruptcy Court hearing that never was, Judge Prudence Carter Beatty approved Solutia’s Disclosure Statement, the major step to confirmation of the Reorganisation Plan to restructure and escape bankruptcy. Exit from the bankruptcy may occur as soon as November 29th 2007.

In doing so, Judge Beatty virtually ended all hope that Solutia’s sister company Monsanto will ever be made to pay for their UK liabilities, which are many. (Solutia, ‘new’ Monsanto and Pharmacia were created when the infamous original Monsanto was ‘spun out’, a move which has now resulted in its environmental legacy liabilities being divvied up among the off-spring).

Viscount Mills’ shameless declaration of ignorance is par for the course. Such has been the Agency’s response throughout this damning affair, which in the UK has come to be centred around Brofiscin Quarry in the village of Groesfaen, South Wales – one of at least 12 landfill sites in the UK where Monsanto dumped thousands of tonnes of chemical wastes. Rather than confront the truth, the Agency has sat on its hands and repeatedly rejected precise intelligence as to what occurred at Brofiscin Quarry and other sites. In the process they have also probably undermined the evidence of one of their key witnesses, Douglas Gowan and in doing so, potentially obstructed the course of justice.

Between 1967-74, Gowan saw Monsanto’s waste contractors dumping at Brofiscin over several years and as an expert pollution consultant working for the NFU and private clients he monitored the site on a weekly or monthly basis. Gowan is precise, as you would expect from a professional man who was formerly a respected corporate finance advisor and Trustee and Examiner in the US Bankruptcy Courts, and a presenter of an internationally respected classical music concert series. For the best part of a decade when working in the US as a financial advisor to such blue-chip companies as Amgen and Harley Davidson, he was also renowned as an expert in reorganisations, and as an expert financial witness and investigator in complex  financial matters, where his clients included the US Treasury Department  and NASDAQ. Previous to this, he was a recognised expert and published author on both agricultural and industrial pollution.

Yet the Agency didn’t want to know, as the Ecologist detailed in Silenced Witness, and instead has exposed this expert eyewitness to harm and treated him with contempt and disdain.

Gowan’s evident skills and historic knowledge, rather than being welcomed, irked the Agency. Despite his being able to offer access to information it did not have, such as; the presence of major contaminants like dioxins and acrylonitrile at Brofiscin Quarry; evidence as to the cause of cattle deaths and abortions of deformed foetus; when Brofiscin first gained notoriety in 1967; and expert advice on how to make the polluter pay in the USBC.

What has unfolded since has been like watching Rebus pit his wits against the Keystone cops. Proof after proof has materialised over the past year confirming Gowan’s veracity, Monsanto’s culpability, and the Agency’s incompetence or worse. Many of these proofs the Agency denied all knowledge of – but they were in their own archives and had been referenced in reports it had commissioned since at least 2000. Two of these reports said as recently as 2002 and 2005 that Brofiscin was ‘a dangerous place’ and that there was evidence of lethal pollutants in or nearby to local housing.

Regretfully, it has to be baldly stated that the people of Groesfaen, and the local environment, are currently being left at risk, despite relatively inexpensive mitigation solutions being available, and known about since 1975, 32 years ago. At the heart of this Welsh community is a limestone quarry that is haemorrhaging its contents – 80,000 tonnes of chemical wastes mainly from Monsanto’s nearby Newport plant – onto fields; into ditches and streams, and deep into groundwater and a major aquifer. Among these wastes are over 67 identified serious pollution linkages, including PCBs, dioxins and such as pentachlorophenol. These substances bio-accumulate and cross the placenta, meaning that they potentially represent an environmental and public health time bomb. They are known to cause – at nanogram levels – chronic illnesses to the heart, lungs and liver and in the case of PCBs, autism, among other neurological problems (see Burying the Truth). Most of the PCBs, commercially called Aroclors, are unique to Monsanto.

It is not just the people of Groesfaen, but the people of Penrhos, Ruabon, Newport, Dalton, Ellesmere Port, Rayleigh, Pitsea, Telford and Hereford who should also be concerned. Monsanto dumped wastes in these towns too. At least one is reported to have a housing estate built on top of it; another is currently being developed as a residential site. Four are voluntarily being remediated by their current operator, Cleanaway.  Other than perhaps fear of future litigation for leaving people exposed to risk, why would a private company go to all that expense?

Their action is in marked contrast to the Agency approach. In 2005 Brofiscin Quarry was recognised as being a ‘special site’ under Part II A of the Protection of the Environment Act 1990, giving it the dubious distinction of being the UK’s most polluted site.

This sounds fancy and important but it sadly isn’t. Brofiscin remains accessible to anyone who cares to visit and walk amongst the poisonous surface water. It even has jumps for children’s gymkhana practice. As a special site the groundwater and surface water is the responsibility of the Agency; the air and environment is the responsibility of officials at the Rhondda Cynon Taff Borough Council. In this chicken and egg demarcation water comes first; hence the onus has been on the Agency to act and in the process alert RCT to any airborne risk. The latest team of environmental engineers instructed by the Agency, Atkins, had to wear respirators around at least one of the boreholes they dug at the site last year. Yet Viscount Mills emphatically declares the area safe and no threat to public health. This is a lie. He doesn’t know this and can’t know this. All the evidence over the past 30 years, contained in seven major investigations and ongoing monitoring of the site, either say the contrary, or key tests have simply never been done. At best Viscount Mills is proclaiming a self serving negative, claiming that he knows of no risk, when in fact the tests necessary to provide assurance have never even been conducted.

Yet this is how Viscount Mills has briefed his officers, who duly go on the stump in the community and on television to emphatically declare Brofiscin safe. Their agreement or acquiescence is testimony to a rotten culture being at the core of the Agency. Not among its expert technical officers, but among its enforcement division, corporate policy advisors, and leadership. 

The Agency is a peculiar proposition in that it is not a government department, but enjoys an executive quango status with police and enforcement powers; the latter without statute limitation. This essentially means that other than on budget and targets it is not answerable to anyone. This year it failed to meet its flood defence targets. Nonetheless, Baroness Young received a £26k bonus on her £163k salary, and Viscount Mills and other executives a bonus of 10 per cent of their salaries.  

The Agency is not answerable to a police authority and its police powers are not countered by the protections normally associated with the police force. When it became known in late 2006 Douglas Gowan was assisting the Agency – as a result of leaks from within – he and his wider family started to be subject to threats by phone and in person. Gowan’s home was twice invaded. Seeking protection assistance from the Agency he was told in writing that they had no duty of care, nor wished to offer comfort to a witness. Gowan was abandoned to secure police protection on his own.

In an endeavour to airbrush this shameful episode from the record, the Agency has recently revealed an alleged letter to the Chief Constable in Norfolk, not asking, as one might reasonably expect for Gowan to be given police protection, but simply saying we do know him, and he is assisting us. Like much that has materialised over Brofiscin, this alleged letter was only produced when the Agency was under duress; in this instance an internal investigation being undertaken by Southern Area Regional Director, Howard Davidson, into how the principal officers in the case have treated Gowan and handled his evidence.

This letter should have been copied to Gowan, and also released in an earlier Data Protection request, but it wasn’t included. Davidson confirmed this fact to Gowan. Norfolk police have told Gowan they have no record of ever receiving such a letter, although all letters to the Chief Constable are usually logged. Gowan has latterly secured a copy – and it raises more questions than answers. It is unsigned, and was apparently authored by Agency officer John Harrison, although it is known he was away or on extended leave when it was supposed to have been generated. Graham Hillier, the then acting Regional Director with responsibility for Brofiscin, had always maintained it was authored by Agency lawyer Natasha Lewis; and from computer coding it doesn’t seem to have been generated from the 2006 archive, but to have been generated in August 2007, when Davidson’s inquiry was launched. 

This kind of behaviour from the Agency has been endemic. Such ‘errors’ abound with alarming frequency as Viscount Mills has acknowledged in countless emails to Gowan. He and one of his senior staff members, now being investigated, told Gowan in September 2006 that nothing that was happening in the US Bankruptcy Courts as to the settlement of the environmental damage caused by the old Monsanto was of any interest to the Agency. Viscount Mills has never apologised for any of these statements or untruths but impatiently has asked time and again that Gowan ‘cease’ and move on. Nevertheless, he retains the utmost confidence in his staff. Even for those who are currently being subject to investigation.

Viscount Mills wrote to the press pre-empting the outcome of this investigation before the minutes of a hearing on the matter chaired by Mr Davidson had even been agreed, let alone any determinations made (see letter, directly below). This is par for the course. The Agency likes to get its spin and version of the truth in first. It employed the same tactic following a meeting between Gowan, its officers and Atkins, the environmental engineers, who were the latest to give the Quarry a dubious bill of health. Viscount Mills promised a transcript would be made of the meeting, for future reference. It would be the definitive document. What materialised was a back of the hand note, as might perhaps be suitable for detailing a pub lunch, but not a full day’s technical hearing. Again, this was sent out to the public at large and the European Parliament, without Gowan having sight of or ever agreeing to the notes – which he not only found to be wholly incorrect and misleading but also to contain sensitive evidentiary proofs.

The problem for the Agency in this instance is that proceedings were also independently witnessed. Gowan had been permitted to bring an observer and he invited Lynette Morgan, a community leader from Groesfaen. The two had never previously met, although they had been in correspondence. Ms Morgan like many in the village was concerned that Gowan and the Ecologist were unfairly besmirching her home, and affecting house prices. She had asked stringent questions of Gowan based on the Agency’s claims. He invited her to hear for herself, as well as monitor the meeting. She agrees that the minutes that were published are a travesty and distort what was said. Her observations have not been addressed and questions she has asked arising from the meeting have gone unanswered. She is now receiving the ‘Gowan’ treatment.

The Agency is at best a shambles. Yet Viscount Mills – who likes to play the everyman in the office; call me Chris is his approach, although he won’t relinquish his title or the perks that go with it – retains a blind confidence in his staff. In the letter that defends them against Gowan’s ‘assertions’, which ‘do not affect the wider operations of the agency in regard to this site (Brofiscin)’ he also asserts that the UK’s best interests are being pursued in the USBC. Something Viscount Mills and Baroness Young have repeated ‘ad infinitum’, even as the Court was preparing to close the book on Solutia’s environmental legacy liabilities.

How the Agency, staff of thousands, budget £1bn plus, with US lawyers on the case, weren’t aware this was the case beggars belief. The cost to the UK is enormous.

Viscount Mills and Baroness Young justify their position by parading an ‘out of court’ deal with Solutia. This says that at some future date liability at Brofiscin will be addressed when proofs of responsibility are forthcoming, and which will then be subject to normal legal defences. The Agency are heading to court in a legal battle with a multi-national company that has just been party to a five year dispute at a cost of over $168m. Monsanto is not going to easily allow anyone to set a binding precedent in the UK over Brofiscin, when another 11 claims are possibly pending, and countless tort claims likely alongside that.

Compare the work of Baroness Young and Viscount Mills with the deals secured by the victims of Anniston, Alabama, and Sauget, Illinois, where Monsanto used the same modus operandi to dispose of their wastes as they did at Brofiscin. There is no comparison, and in the US those natural resources damaged are to be compensated by up to $604 million, in addition to remediation, and settlement of civil claims, and without anymore litigation, and with protection for past and future generations. In the UK none of this applies, and there is zero provision for any compensation for the damage to natural resources, and on remediation and claims, the UK faces years of costly litigation in which the only winners will be the lawyers.

US lawyers fighting on behalf of the American victims of Monsanto’s wilful waste disposal practices have been confounded by the Agency’s failure over the past 18 months to make any claim against Monsanto. The Agency palpably thought it would be better by going it alone, in the UK’s best interest, and by trying to negotiate rather than by confronting the polluter and asserting a claim or objection to Solutia’s settlement plan. The result for the UK?  Nothing. Zero. Baroness Young, Viscount Mills, and Agency lawyers Ric Navarro and Dave Cavell, and their US law firm Lovells, have some searching questions to answer. The June 29th 2007 agreement that Baroness Young and Viscount Mills cling to, carries as much weight as the peace accord Chamberlain made with Hitler, months before we belatedly declared war.

In the meantime, the people of Groesfaen, and the farmers at Brofiscin, have been left exposed; house prices in the area are now teetering on the verge of collapse; life-expectancy is 10% lower than for most of the rest of Wales; and the public don’t know whether their health and that of their children and their grandchildren is being compromised, or if the area is safe for livestock; the wildlife; and as to the future water supplies. They are also now being told to await the outcome of yet another investigation that likely will probably not publicly report for a further 2-3 years. 

On the 26th April 2007, at a hotel in London, Gowan and the peer Margaret Mar met with Viscount Mills, Cavell and other officers of the Agency. At that meeting Viscount Mills said he would resign if the British interest wasn’t properly served, and if an objection to the Solutia Disclosure Statement, and a claim, were not filed. They were not. The game’s now over Viscount Mills. The UK’s best interests have not been served, and the lies and obfuscation have to come to an end. You should go, and go now.

Baroness Young (CEO) and Sir John Harman (Chairman) have been aware of this ongoing debacle for at least six months and a year respectively. They have condoned and sanctioned the process. The environment is simply not safe in their hands, and they should go too. The activities of Navarro, Cavell, Lewis, Hillier, Johnson, and Lovells, and the officers and lawyers that they instructed, require forensic independent investigation, and the Agency itself needs root and branch reform.

Their individual behaviour, and the Agency’s actions, have also recklessly and so needlessly compromised Gowan’s evidence, meaning that if the Agency ever does decide to pursue the ‘appropriate persons’ for remediation, it will do so with one hand tied behind its back. In this way it will – by its reckless conduct and negligence - have obstructed the course of justice and buried the truth; just as nearly 40 years ago old Monsanto and others did (see Burying the truth). 

It must be noted that since taking responsibility for the site the Agency has not interviewed the farmer whose pedigree herd was destroyed 40 years ago by poisonous run-off from the quarry, nor Dr Herbert Vodden, Monsanto’s chief of research and head of speciality chemicals, who has publicly admitted that dioxins and PCBs were dumped in the quarry. Nor the lorry drivers that still live in the area that used to deliver the wastes. They have ignored their own reports and archives and also countless analytical reports from some of the world’s foremost experts.

The Agency has left the UK purse exposed to the tune of potentially £1bn – based on how much it has cost to remediate Aniston and the other such US sites where PCBs and other noxious chemicals have been dumped. That alone is a scandal. The fact that the public and environmental health of the people of Groesfaen and elsewhere has been treated so dismissively, almost as a side issue, is both venal and criminal. The fact is that the Agency does not want to admit to the fact that it lost the plot; has been incompetent and worse; and is now confronted with nanogram contamination of the environment and water supply sources, by chemicals that do not kill instantly, but maim and disable, and can live for far longer than an average human life.

It is a national disgrace, and but for the persistence of a brave man, unafraid as he puts it, to be ‘disputatious’, this scandal would be being covered up, to the lasting cost of the UK, and us all.

Lord Mills should resign now, as should Baroness Young. That would be an action in the best interests of the British public.

This article first appeared in the Ecologist October 2007

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