The NRA's decision to institute civil proceedings against Coalite comes 16 months after the Ministry of Agriculture banned the sale of dioxin-contaminated milk from two farms close to the company's works near Bolsover (ENDS Report 198, p 6).
Subsequent investigations by HM Inspectorate of Pollution (HMIP) revealed that high concentrations of dioxins were being emitted by the site's incinerator, and were also entering the firm's liquid effluent stream via the incinerator's scrubber (ENDS Report 203, pp 4-5). Meanwhile, the NRA had detected dioxins in the site's discharge to the river Doe Lea, and carried out sediment analyses which showed that dioxin contamination extended many miles beyond the Doe Lea's confluence with the Rother (ENDS Report 209, p 8 ).
In June, the NRA followed up by announcing that it would be taking a criminal prosecution against Coalite. But this case has now been suspended and a civil claim lodged instead.
The NRA is able to take civil proceedings against the company because, in its role as a flood defence authority, it owns the banks along substantial stretches of both the Doe Lea and the Rother. This, in turn, makes it the owner of the river itself.
The NRA wants the company to pay for the removal and disposal of the contaminated sediments. The cost of this operation in the Doe Lea alone has been provisionally estimated by the NRA at about £1 million.
Under section 161 of the Water Resources Act 1991, the NRA could carry out the clean-up before claiming its "reasonable" costs from the company. However, spending £1 million or more before seeking cost recovery was clearly regarded as too risky. The civil claim will seek to establish Coalite's liability before the clean-up commences.
Crucial to the NRA's case will be evidence about the pattern of dioxin contamination in the river sediments. Its analyses have shown that there is virtually no dioxin upstream of Coalite Chemicals' outfall to the Doe Lea, but substantial contamination downstream.
However, the pattern of dioxin levels appears to have changed between October 1991 - just before the incinerator was shut down at HMIP's insistence - and last April. While the earlier figures showed the contamination peaking just downstream of the outfall, two subsequent analyses gave a dioxin peak more than 1.2 kilometres downstream (ENDS Report 209, p 8 ).
Coalite Chemicals, which has not carried out any sediment analyses itself, is attaching considerable significance to this change. The company says it will defend the civil claim vigorously.
Coalite is irritated by the NRA's public announcement that it would be taking criminal proceedings against the company and its subsequent decision to drop them, at least for the time being.
The NRA's decision not to proceed appears to have been influenced by a legal ruling this spring that samples of river water and sediment used as evidence in criminal proceedings must be "tripartite" (ENDS Report 207, p 38 ). This means that they must have been divided between the NRA and the defendant, with a third portion reserved for future comparison. Until this judgement, it had generally been believed that the tripartite requirement applied only to effluent samples. Only the sediment samples taken by the NRA in the Doe Lea and Rother in April were tripartite.
Although the NRA was well aware of the legal ruling when it announced its intention to prosecute Coalite in June, its decision to back off appears to have been influenced less by any worry that it has a less than convincing case than its unwillingness to risk losing the proceedings and the effect this might have on a subsequent cost-recovery claim. The standard of proof in a civil claim, based as it is on a balance of probabilities, is also less demanding than in a criminal case, where the prosecution must prove its case beyond reasonable doubt. And the NRA will be able to bring in evidence all the samples it has taken in and around the Coalite works, whether or not they were tripartite.
The claim is unlikely to be heard for some time. The NRA says it needs at least six months to prepare its case. One of the issues on which further work is needed is what dioxin level in the river sediments should be aimed for. With guidance from the scientific literature lacking, this is likely to require tests on invertebrate growth in sediments containing varying levels of dioxins.