Guest blog by Rev. Paul Cawthorne.

Paul – a vicar and environmentalist – read my blog about Defra’s shelving of the chalk stream recovery pack and wrote to tell me of his own frustrations with officialdom. I offered him a guest blog. His story is fascinating and concerning. CRW.

I’ve been leading a team researching the persistent industrial chemical pollution of U.K. watercourses for the last five years. Our research was the basis of the recent ten part Radio 4 series Buried: The Last Witness.  

Now that the ongoing neurotoxic PCB problem in U.K. watercourses and wildlife is garnering attention again (what a UN Environment Programme factsheet called a conveniently “forgotten legacy”) I’d like to explain how this ongoing watercourse pollution has been allowed by government to happen. 

The identification of contaminated land under Environmental Protection Act 1990 Part 2A has been radically undermined by its own statutory guidance. The Act itself is admirable. That makes it all the more surprising that two of its key clauses were rescinded in 1995 during Lord Deben’s tenure as Environment Secretary, after a sustained industry lobbying operation during Lord Howard’s tenure. How that was done was chronicled in the Journal of Environmental Law at the time by the chair of the Environment Select Committee, Sir Hugh Rossi:

Rossi-PAYINGPASTWILLWE-1995Download

Implementation of the Act was delayed for ten years from 1990 until 2000 and the statutory guidance was written strangely in several aspects.

1. Most obviously and damagingly divergent from the original Act, it excludes as receptors (SG 3.8b) of pollution all watercourse lengths that do not come within a highly restrictive designation:

See Environmental Protection Act 1990

This means the majority of river lengths in the UK which do not come within this tight Table 1 definition may be polluted by industrial neurotoxic chemical leachate to an infinite extent: they are excluded from recognition within the Act as a receptor of that pollution.

Thus over half of the U.K. rivers by length and most of the downstream lengths of most of our major rivers are excluded from the primary legislative protection of the environment from chemical pollution.

2. The guidance states that Councils should “give priority to particular areas of land that it considers most likely to pose the greatest risk to human health or the environment”.  

Sadly, especially in Wales, that last word “environment” gets systematically deprioritised in the detail of the guidance and its implementation. The preamble to the guidance sets a subtly chilling tone.  Multiple councils in England and Wales, after reading the guidance, instruct their favoured consultants in such a way that only human risk gets reported on, fully in contrast to the Act’s comprehension of human AND environmental harm potential.

For example

For example PCB continued to trickle into the Foxhill brook towards the Mersey from Alvanley Commonside unlined PCB dump for decades without remediation.

A consultancy report written by Helsby-headquartered RSK for the local Council was used tacitly to determine that a leaching neurotoxic chemical waste dump is not contaminated land within EPA Part 2A. There is no written record in 2009 that Cheshire West Council or its predecessor even made a determination decision after the helpful consultancy report was received. This 2024 Cheshire West and Chester Borough Council.Council PR summary retrospectively summarises: 

“In 2009, we concluded that, based on the assessments undertaken, the tip did not meet the definition of Contaminated Land and investigations were drawn to a close”

It’s seems to me a national scandal kept in place by a surprisingly wide-ranging official code of silence. A housing estate is currently being built over a PCB-contaminated factory site with extremely high readings at nearby Helsby, without purchasers even being made aware.

A variety of Councils use strategies to keep the false negatives in place.

3. Wrexham council claimed that it has an infinite timescale to even reach a decision, ie to comply with the law (see SG 2.9);

4. Newport said that it’s “not a priority” to decide whether the site of the largest PCB factory in Europe (which has continued to pump a particularly toxic chemical cocktail down a 3km pipe straight into the lower Severn estuary with NRW blessing) comes within the Act’s definition of contaminated land.

5. NRW has had Caerphilly council area data on file since 1994 showing that wildlife in the river Sirhowy is contaminated with elevated PCB levels. Yet bizarrely it didn’t even share that data with Caerphilly council until my team resurfaced the data via an FoI and intervened. As toxicdocs.org discloses, it seems as if a payment was made by Monsanto to the predecessor Council. We can’t know for sure because many details of NRW’s formal agreement with Monsanto are hidden under lengthy redactions.

NRW still claim there’s no wildlife or sediment PCB for the entire river Usk including where it runs past the site of the biggest PCB factory in Europe – do you believe that absence of data? O is it FOFO – fear of finding out? 

6. Another way the statutory guidance undermines the Act is in defining what environmental damage qualifies as damage. Unless the pollutant is increasing the contamination doesn’t officially exist (SG 4.38b “sustained upward trend”). So a plateaued high chemical leachate flow would not qualify within the wording of this statutory guidance section, however damaging to invertebrates or fish the leachate may be. Thankfully Councils seem so embarrassed by this drafting error which misrepresents the Act wording that they tend simply not to follow it. It’s no wonder the Law Commission concludes in report:

“The first issue is at the very least a policy reform issue, which may involve elements of law reform (including a role for the Law Commission).”

– Henni Ouahes, Head of Public Law, 12/4/24

7. Additionally, the main EA method for testing for the mainly insoluble heavy congeners of indicator neurotoxin PCB is midwater, not testing in the sediment where PCB adsorbs into the vegetative silt. Dangling a test tube off Cefn Mawr bridge every week won’t tell whether the PCB used at the factory there (Monsanto’s European PCB research headquarters) has leached underground and into the river Dee:

The Environment Agency systemically using suboptimal testing protocols which potentially miss the main flow of a particular neurotoxin is surprising, especially given the reproduction disruption characteristic of PCB as it biomagnifies, known to EA chief scientist Gideon Henderson. I’ve emailed Gideon and EA Senior Chemicals Adviser Richard Hawkins about it several times without acknowledgment.

https://www.thenorthernecho.co.uk/news/23253376.monsanto-pcb-chemical-spill-1970s-cleaned-teesside/

Using a type of testing which intrinsically misses the main benthic zone presence of this immunosuppressant contaminant greatly helps underestimate the scale of the UK national contamination problem. Regulatory toleration of UK POP pollution is perplexing. It’s all so different in America …

Here the EA, NRW, MMO and Cefas all appear to tolerate the pollution. My team may soon be testing whether this is legal, supported by a kind new philanthropist. But I’d prefer it if our legislators faced into the problem and sorted it themselves. Why have politicians issued this ongoing distorted mandatory ‘guidance’ – a passport to ongoing river pollution? Will our Lords Deben, Howard, Young and Mills and senior civil servants dare to now fess up for the public good and move to helping civil society to solve the problem they’ve allowed? 

The EA now claim in a new information release refusal this month not to have the key American court action document, Appendix B listing sites where the main polluter should be held liable, despite Baroness Young having written to assure The Ecologist magazine in 2007 that the EA had an official plan.

This whole narrative – especially the failings in the statutory guidance – has significant practical impacts for the ecological health of us, and for the wildlife of iconic rivers like the Severn, Dee, Tees, Thames, Mersey, Usk, Taf, Ely, Sirhowy.