The Corby case overspill

On 29 July 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 the case has been appealed by Corby DC (and there is the possibility of a settlement through mediation in the meantime), this case raises very some critically important issues for all parties engaged in remediation – including consultants, expert witnesses, contractors, developers, local authorities, grant aid / public funding providers and regulators.

1. The Facts

Corby concerns the carrying out in the 1980s and 1990s of one of Europe’s largest contaminated land remediation projects by 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; 90% of this came in the form of Derelict Land Grant from the Department of the Environment, with the remainder from the EU regional development funding.

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 teratogenic 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.  As a result, the town of Corby (population 50,000) and the surrounding area have been impacted.

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 (and unreasonable activity which adversely affects a large group of people) and breach its statutory duty to manage waste safely.

2.The Judgment

The judgment runs to 260 pages – perhaps the longest environmental judgment to be handed down by an English judge.  One might ask why the judge provided such comprehensive, exhaustive detail? The case considered “exceptionally complex and detailed issues,” and no doubt its intricacy goes some way to explaining the length of the judgment.

However, as one reads the case, one cannot help but conclude that the judge has laid out all of the facts with a particular aim in mind – to expose something of a national scandal, and to highlight a multiplicity of shortcomings amongst various public agencies engaged in redevelopment in the hope that lessons are being / have been learnt.

3.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. If the claimants can prove (which they still have to do) that their bodily injuries were actually caused by the Council’s negligent remediation works (and the Council has not identified any alternative explanations for the birth defects), then compensation for the various birth defects will run into many millions of  pounds.

• 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. This is quite likely to be the case where airborne pollution is concerned. In this case there are 43 additional child claimants born before 1997 who have been awaiting the Corby decision and who might also bring claims against the Council.

• It is not inconceivable that other claims will be made in the future by residents of various housing estates in Corby and nearby areas, site workers impacted by airborne contaminated dust.

4. 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 superseded by the incoming SGVs).

Corby DC aimed to show that contaminants found at the site were unacceptable 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.

• Moreover, the judge observed: “the application of SGVs and the ICRCL threshold figures was for the purposes of this case to some extent, at least, inappropriate because the case is concerned not with the after-use of the reclaimed sites but what would be the consequences of disturbing the contaminated sites and transporting the excavated materials”.

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 be 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.

5. Other Observations

As noted, there are lessons in Corby for many parties engaged in site remediation activities, including:

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”.

Corby DC had treated the site remediation as a simple civil engineering project, rather than a complex remediation and redevelopment process. The judge commented that Corby “seems to have regarded the sites which it had purchased from BSC as its own to do with what it willed without reference to safety considerations to the general public” and that its approach was focused on job creation and “making as much land available for development as possible”.

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.

The judge observed that “any competent local authority operating at the latest from 1985 onwards should have been aware of the potential harm to members of the public from dust generated at a site such as the site at Corby and should have taken active steps to ensure that dust was not generated either on site or by or during the transport of materials from the site. As a matter of common sense, this necessarily needed to be applied even more rigorously where, as here, it was contaminated material which could give rise to dust”.

Expert witnesses

Evidence was provided by a veritable army of expert witnesses – epidemiologists, toxicologists, land contamination and waste management specialists, air pollution specialists, and experts in foetal medicine.

Each expert witness came under the closest scrutiny of the court. Corby DC was criticized for choosing experts who did not have the requisite relevant knowledge. The judge was most impressed by the expert witnesses appointed by the claimants. The case shows the importance of selecting the right / best experts at the very outset for each of the specialist fields.

It is notable that Corby DC’s expert contaminated land witness (an associate at MJ Carter) had concluded that Corby DC’s “remediation activities were investigated, planned, implemented and managed in an appropriate manner.”  However, Corby DC had not undertaken proper site investigations so this opinion was unsupportable, and subject to heavy criticism by the judge.

Grant aid / public funding providers

Another remarkable feature of this case is that £35M (in today’s money) of public funding was invested in the negligent remediation of the site, funding the actions which have been adjudged to be capable of giving rise to birth defects to so many people.

Where were the checks and balances?  The Audit Commission (http://www.audit-commission.gov.uk/localgov/pages/default.aspx) appointed a Principal Auditor to the project, but the judgment does not indicate when this appointment was made.

Bearing in mind that the role of the Audit Commission is to protect the public purse, one might have expected the very serious shortcomings at the site to have been uncovered and rectified. These included financial irregularities such as double payment for some contracting tasks.

However, whatever scrutiny did take place by the Principal Auditor it was evidently ineffective – his reports / documents, with the judge commenting that his various reports and documents “contain little first-hand evidence which is relevant other than from a chronological standpoint”.

By the time an independent auditor from the Audit Commission reported in October 2002 about what had gone wrong at the site, it was all too late to make a difference at Corby.

It is not mentioned whether (and if so how) the EU monitored the expenditure of its £3.5M contribution towards the remediation of Corby steelworks. Clearly, if there was any monitoring / auditing then this was no more effective than that which was carried out by the Audit Commission.

Regulators

Given the problems that subsequently manifested, Corby Steelworks can be seen as a serious regulatory failure, albeit under the old regulatory structure when one local authority entity (in this case, Northamptonshire County Council) regulated another (Corby DC):

• Northamptonshire County Council, formerly the waste disposal authority, is criticised by one witness who describes the site as follows: “An appalling site which apparently has received little or no attention from the WDA”;

• The Environment Agency (“EA”, established in 1995) certainly took a tougher and more independent line with Corby than the WDA, especially from 1997 onwards, but by then much of the alleged damage had occurred;  and

• The NRA (guardian of the water environment from 1989 to 1995, prior to absorption into the EA) served a caution on Corby BC in 1994 in relation to the discharge of effluent from a quarry at the site that was used for depositing waste materials. This was not a failing on the part of the NRA though because the  main regulatory regime of relevance at Corby was not water discharge consents, but waste disposal / waste management licensing.

6. Conclusion

Anybody who reads the Corby case will wonder whether it can be isolated to its own particular facts (big site, remediated a long time ago, small local authority involved, prior to the introduction of the waste management licensing and the Part IIA contaminated land regime and the creation of the integrated, independent Environment Agency). It is worth noting that, with regards to landfill sites (and part of the Corby site was used for land-filling steelworks wastes), the judge noted: “given that there have been a number of reports and investigations, for instance in the area of landfill sites in the UK and Europe, it is scientifically plausible that there is or at least may be a connection between contaminants of one sort or another and the creation of birth defects”.

One would hope that no other public body can undertake remediation as ineptly and negligently as Corby DC have done, but it would be rash to dismiss the possibility that poor practices were halted overnight in 1995 by the creation of the Environment Agency. Corby shows that effective regulation always depends on the calibre of the people on the ground, including the candour of the regulated, as well as the vigour and objectivity of the regulator.

Certainly, the shortcomings of the remediation undertaken at Corby were many and varied. Corby, as a minimum, sends  a serious warning to us all about the potential dangers arising from the remediation of contaminated sites. Using QRA skills, one might conclude that some sites would best be left well alone if the “cure” (remediation by “dig and dump”) is worse than the “illness” itself (the exi