|
On July 29th Judgment was handed down by the High Court in one of the most important environmental cases to come before the English courts: The Claimants appearing on the Register of the Corby Group Litigation v. Corby District Council (“Corby DC”). The claimants were young adults born in and around the Corby area in the late 1980s and early to mid 1990s, each of whom has limb defects from birth.
Even though (a) the case leaves outstanding the issue of causation (whether the claimants birth defects actually were caused by the contaminants mobilized by the remediation of the steelworks); and (b) the High Court decision has been appealed by Corby DC, this case nonetheless raises very some critically important issues for all parties engaged in remediation – especially for local authorities.
The Facts
Corby concerns the carrying out in the 1980s and 1990s of one of Europe’s largest contaminated land remediation projects by one of England’s smallest district councils. The remediation of a 270 ha former British Steel site took place over a 15 year period. Over £35M (in today’s money) of public funds was spent on the remediation.
Three quarters of a million cubic metres of soil (some of it contaminated with dioxins, heavy metals and PAHs) were dug up from and deposited around the site. Contaminants (especially in the form of red dust containing chromium and other carcinogenic and terratogenic substances (i.e. substances which can disturb the development of embryos)) were transported around the site, the town and its environs on the unwashed wheels of uncovered lorries and the unwashed boots of contractors who worked at the site.
The judge, Mr. Justice Akenhead, decided that the contaminants noted above “could realistically have caused the types of birth defects of which complaint has been made by the Claimants” – in this case, clubfeet, and shortened upper and lower limbs. He found that the concentration of such birth defects in the Corby area was at least three times greater than the statistical norm, and he determined that this was a “statistically significant cluster”.
For the manner in which the Council managed the remediation of Corby steelworks, Corby DC was found to be negligent, had committed a public nuisance (an unreasonable activity which adversely affects a large group of people) and breached its statutory duty to manage waste safely.
The Consequences
With an appeal under way, the full consequences of the Corby decision cannot yet be fully gauged - however, based on the judgment of the High Court, the following can be observed: | Certain contaminants at former industrial sites, howsoever mobilized, are capable of giving rise to very serious bodily injury claims. | | Litigation involving contaminated sites which might give rise to bodily injury can be incredibly complicated and this can be reflected in the amount of time which it takes for the case to come to court, as well as the heavy costs entailed. | | The legal costs in the Corby case have been reported at over £6.5M thus far - £1.9M for the Council and £4.6M for the 18 claimants. Read More... | | Some of the parties’ legal costs may be picked up by insurers, assuming that the council has public liability insurance and / or the parties have bought legal expenses / after the event insurance. | | If a contaminated site has a wide impact on a neighbourhood, then this can constitute a public nuisance – not only is this a civil wrong / tort, it is also a common law crime. | | It is not inconceivable that other claims will be made in the future by residents of various housing estates in Corby and nearby areas, or site workers impacted by airborne contaminated dust.
|
Technical Uncertainty
From a technical standpoint, there are some serious difficulties with the judgment in Corby.
Corby DC’s argument was partly underpinned by reference to widely used current and former technical guidance. In particular, reference was made to the current Soil Guideline Values (SGVs), as well as the action and trigger values of the old ICRCL guidance for the “Redevelopment of Contaminated Land: Acceptable Levels of Contaminants in Soils” (which latter guidance was widely used for 20 years up to 2004 when it was superceded by the incoming SGVs).
Corby DC aimed to show that contaminants found at the site were present at acceptable concentrations (though this was not borne out by the findings - e.g. because cadmium, for instance, albeit rarely sampled for on behalf of Corby DC, was found in concentrations of up to 23 mg/kg, which exceed the old ICRCL threshold level of 15 mg / kg for parks, playing fields and open space).
Moreover, the judge dispatched this argument as follows:
| With regards to the ICRCL document he said: “This paper is not designed to give guidance or comfort to those who plan to excavate and remove largely on uncovered lorries hundreds of thousands of cubic metres of materials which were suspected to be contaminated”.
| | With regards to SGVs he said: Current advice from the Environment Agency states that SGVs should not be used if they are not representative of the site being assessed, and not for short-term or acute exposures. In my judgment, the SGVs are not directly applicable to the type of environmental pathway that is under consideration here”. Furthermore, there are no SGVs for one of the main suite of contaminants at the site - PAHs. |
By dispatching the technical guidelines in this manner, we are left to wonder what - if any - technical guidelines now apply to determine if and when concentrations of airborne pollutants in the course of remediation projects (involving on and off-site transportation and other operations) reach unsafe levels?
There now appears to be a serious lacuna in the UK’s extensive suite of technical guidance for remediating contaminated sites. With question marks raised concerning the applicability of SGVs to airborne pathways for pollutants mobilized in the course of remediation projects, it is now incumbent on the Environment Agency and DEFRA to address this uncertainty as soon as possible so that it does not act as a bar to regeneration.
What did Corby DC get wrong?
As noted, there are lessons in Corby for many parties engaged in site remediation activities and especially for local authorities.
The judge was scathing about Corby DC’s management of the site which it found, amidst allegations of corrupt practices and police involvement, to be “chaotic” and “extensively negligent”.
In polluting the environment of Corby, the judge held that the council’s failings were considerable, including – | Appointing inexperienced and unqualified project managers. The judge criticised Corby DC for using a “shockingly inexperienced workforce” to carry out this operation;
| | Not commissioning adequate ground, site and chemical investigations, or using sampling techniques which would be representative of site conditions. The investigations were necessary to provide Corby DC with “as good a picture as practicable as to what contaminants were present where and at what levels. Without that information, a competent local authority would be proceeding to a large extent in the dark”. | | Inadequate soil sampling. With reference to one investigation, which must have been a serious waste of time, resources and public money, the judge noted: that it did not provide “any useful or representative information about the presence of harmful contaminants on this particular site. 41 effective trial pits spread over 150 acres represents one trial pit for every 3.66 acres (17700 square yards)”. | | Under-use / not listening to its own external experts; | | Breaching waste management licences, including failure to supply / oversee the use of wheel-washing facilities, and failure to document wastes transported around and deposited in the site (a breach of statutory duty under section 34 of the Environmental Protection Act 1990);
| | Poor site security; | | Very poor cost control and overseeing of contractors. |
Conclusion
Certainly, the shortcomings of the remediation undertaken at Corby were many and varied. As a minimum, Corby serves as a serious warning as to the potential dangers arising from the remediation of contaminated sites. Using qQRA skills, one might conclude that some sites would best be left well alone if the “cure” (remediation by “dig and dump”) is judged to give rise to more serious problems than the “illness” itself (the existence of contamination).
Corby also points to the vital importance of appointing an experienced, qualified team which contains a high level of practical know-how and can covers all relevant areas of required skills, especially risk management.
If you would like to discuss this case and its implications please call Stephen Sykes on 01743 276100 or email
This e-mail address is being protected from spam bots, you need JavaScript enabled to view it
|
