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Elliott v. Agrevo UK Ltd [2000] EWHC Technology 118 (7th April, 2000)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
BEFORE HIS HONOUR JUDGE RICHARD HAVERY Q.C.
BETWEEN
PETER STEWART ELLIOTT
Claimant
and
AGREVO UK LIMITED
Defendant
Case number 1997 ORB 664
Dates of Trial: 5th/6th/7th/11th/12th/13th/14th/18th/19th/20th/21st/25th/26th/27th/28th October 1998
Date of Judgment: 4th July 2000
Charles Pugh for the Claimants ( Solicitors: Limbach Barham)
Lawrence West for the Defendant ( Solicitors : Hammond Suddard )
JUDGMENT
Introduction
1. Mr Peter Elliott
is a market gardener. He occupies land at Hauxton near Cambridge. Adjacent to
that land, on the northern side, is land occupied by the Defendant, on which
there is a factory where the Defendant manufactures, formulates and packages
agrochemicals. Agrochemicals are chemicals used in agriculture to improve yields
of crops by controlling organisms that compete with crops or harm the development
of crops. Mr Elliott claims damages in nuisance from the Defendant for damage
to his crops of alpine strawberries (fraises de bois, species apparently Fragaria
vesca or F. semperflorens), Allgold raspberries and Fantasia blackberries, which
he claims was caused by deleterious chemicals, namely hormone-type herbicides,
chlorides and manganese, passing from the Defendant's land to his land by flow
of groundwater. Attached to this judgment as Appendix 1 is a map, prepared by
Aspinwall & Co, of the Claimant's relevant land and the adjacent land of
the Defendant. The Claimant's relevant land consists of two fields. The larger
is called Packhouse Field, which on its northern boundary abuts the Defendant's
land. The strawberries grown in Packhouse Field were grown in two areas, area
A towards the east end of the field and area B near the middle of the field.
The smaller field, situated south-east of Packhouse Field, is, for present purposes,
called area C. The area of Packhouse Field is about nine acres, and of area
C is about two acres. The Defendant's main manufacturing plant lies to the north-east
of Packhouse Field. There is a waste water treatment plant (WWTP) north of the
north-west corner of Packhouse Field. A group of pipelines to carry effluent
from the main manufacturing plant to the WWTP is laid on the Defendant's land
parallel and adjacent to the northern boundary of Packhouse Field. There is
a right angle bend in the pipelines at the north-west corner of Packhouse Field.
2. The case was,
for pleading purposes, divided into nine parts. I set out in Appendix 2 the
Claimant's case as ultimately pleaded. The hormone herbicides relied on in the
Claimant's case as ultimately pleaded were dicamba; mecoprop; MCPA; 2,3,6-TBA;
2,4-D; and dichlorprop.
3. The crops were
grown in different places, and replanted in different places at different times.
The three species have different susceptibilities, they demonstrated different
symptoms, and the Claimant alleges that chemicals were responsible for damage
to the crops in different ways. There are three different growing seasons particularly
involved: 1992, 1993 and 1994. Hence the division of the case into nine parts.
The most important crop is the alpine strawberries.
History
4. Production
of agrochemicals on the Defendant's land started in 1943. The site was acquired
by the Defendant's predecessor company in 1981. In November 1986, the Claimant
took a lease of Packhouse Field and went into occupation of it. He started to
grow alpine strawberries there in 1987. In October 1992 he took a tenancy of
area C, and started to grow strawberries there in April 1993. In this judgment,
I shall use the expression "strawberries" to refer to alpine strawberries, fraises
de bois, unless otherwise stated.
5. The market
in fraises de bois is a niche market. They are a small fruit with a characteristic
flavour. Mr Peter Elliott acquired his initial knowledge of the market and contacts
from a person who was retiring from the business. Initially he supplied only
to Covent Garden, but by improving the presentation and by marketing energetically,
he substantially increased his sales. In 1988 he almost doubled the sales his
informant had been achieving. By 1993 his sales had doubled again, and he became
the major supplier to the London market. In 1993 Mr Elliott won the ADAS/Sunday
Telegraph award for "Marketing Excellence and Innovation" in the category of
Small Producers. (ADAS is an acronym for the Agricultural Development and Advisory
Service.) In order to extend the season of production and marketing of fraises
de bois over that which was possible from normal outdoor crops, he set up a
group of polythene tunnels (four small, two medium and one large) for propagating
the plants. They were established close to the packhouse where facilities were
available for irrigation, etc. and so that the crops could be closely monitored.
6. Alpine strawberry
plants last for three growing seasons. If planted in October of 1990 they will
crop in the summer of 1991, 1992 and 1993. If planted in April 1990, they will
crop in the summer of 1990, 1991 and 1992. Thereafter there will have to be
a replanting. Repeat cropping in the same soil or replanting in the same soil
can result in "soil sickness" caused by the presence of pathogens within the
soil and leading to a reduction in vigour.
7. The first damage
to the crops appeared in 1992. Strawberry plants grown in grobags in a polytunnel
and in the propagation polytunnels were found to be affected by a fungal pathogen,
Phytophthora cryptogea. (All the pathogens that I refer to in this judgment
are fungi). Strawberry plants in the field suffered from depressed growth and
showed symptoms of stress. Samples of plants in the field were found to be suffering
from another fungal disease, Rhizoctonia. I accept evidence that whilst Rhizoctonia
can be a serious disease of strawberries in other climates, in the United Kingdom
it tends to be a weak disease infecting plants that are already suffering from
some other problem. No other cause was determined.
8. Mr Elliott
described the damage in 1992 in stronger terms. He said that in 1992 the strawberries
were late coming into flower, and, although they appeared to be in good condition
and vigorous at first, by July there were dead and dying plants in patches that
became larger by the day. I did not find Mr Elliott to be a reliable witness
as to detail; but whatever the extent and description of the damage, it was,
I accept, sufficient to cause him to decide to abandon that crop and plough
up the area, which was an area of about one acre in area B.
9. Symptoms similar
to those seen in 1992 afflicted the alpine strawberry plants in the field in
1993. The plants appeared to establish well only to start to become retarded
and die back. That tended to occur in areas and gradually spread. Samples were
tested at the ADAS laboratories but the only positive result was the finding
of the disease Phytophthora.
10. The trouble
continued in 1994. I quote from a letter dated 8th December 1994 written by
Mr Ian Cole of ADAS to the Claimant. Mr Cole, who gave evidence before me, was
Senior Fruit Consultant with ADAS:
... areas of plants started to show signs of stress. Plants became stunted and died back... there were three prime areas where plants... had suffered...
13. Here the majority of plants
looked alright when initially inspected at the end of June. However it was noted
that there were random plants starting to wilt. These plants and soil were sampled
for testing.
B. Planted in 1993.
14. Large areas were visibly
suffering. Plants were stunted, leaf was collapsing and in severe cases the
plants were dying or dead. Again samples of plants and soil were taken.
16. This area suffered from
waterlogging in the lower areas of the field following the very wet autumn of
1993. Areas of plants, not necessarily associated with the waterlogging, started
to die off in early Spring 1994 to the extent that you did not feel it was worth
retaining it. It has subsequently been cultivated and drilled with cereals.
17. Because of the growing
frustration that we were not getting to the bottom of the problems appearing
regularly on the holding I called in a pathologist and a soil scientist.
18. On samples
of alpine strawberry plants received by ADAS on 1st July 1994, tests for fungal
pathogens revealed the presence of fusarium (two species), cylindrocarpon, Rhizoctonia
fragariae and pythium in the crown. Phytophthora and verticillium were not found.
Later in 1994, Phytophthora cactorum was confirmed on rotting crowns of plants
from area A. P. cryptogea was not detected. Samples from areas B and C revealed
no P. fragariae, no P. cactorum and no verticillium wilt. A miscellany of fungi
including cylindrocarpon were seen in the badly rotted roots but none were considered
to be aggressively pathogenic to strawberries under normal growing conditions.
Mr Cole continued in his letter:
19. Bioassay tests [were] carried
out with samples of soil taken from each of the sites plus additional fields
at a different location where you have now planted your latest crop of alpine
strawberries. In all cases alpine strawberries grew without showing any sign
of chemical contamination. The one main thing the tests did show up was the
reduced growth in the soils from field sites A,B, and C thought primarily due
to a lack of nitrogen fertiliser.
20. As you know the soil scientist
visited the sites and examined the soil structure. He found compaction in some
of the areas where the crop exhibited poor growth.
21. Therefore in their report
the scientists at ADAS Cambridge attributed the cause of the problems to the
disease Phytophthora on site A, and potential 'soil sickness' due to over cropping
the area with the same crop. Soil compaction was also stated as a potential
problem on field sites A&B. ...
22. The outside alpines have
been suffering now for the past 3 years with the crops appearing to establish
well, only to start to collapse and die in areas that gradually expand.
23. Factors that have been
stated in reports resulting from scientific investigation include soil compaction,
disease, particularly Phytophthora and Rhizoctonia, and a general comment about
the potential damage from 'soil sickness'
24. Soil compaction will definitely
cause problems with restricted rooting and poor drainage. This was discussed
in our discussions on good husbandry. You have assured me that you have deep
cultivated the land between crops to prevent any compaction.
25. Of the diseases Phytophthora
is the major one. Following the diagnosis of it in the propagation house plants
the advice [given] was that the plants should be treated with Aliette, a fungicide
that controls this disease. Unfortunately you have informed me that you have
not subsequently used this product on the holding. However, I will quickly add
that Phytophthora expresses itself in strawberries, by the plant wilting. Results
from pathological testing carried out at ADAS Laboratories in Cambridge have
shown the presence of this disease in the propagation plants (1992), field plants
in 1993, and in the wilting plants of site 'A' in 1994. It has been evident
that in the majority of cases where problems have occurred with the alpine strawberries
the plants do not wilt but become retarded showing pale green/yellow leaves.
The plant gradually losing all vigour and eventually dying.
26. Rhizoctonia the other disease
found in the plants from the field is a serious disease of strawberries in America.
However, I am assured that it is secondary to other problems in the UK.
27. To my knowledge there has
been no crop spray or treatment carried out on the growing crop that would cause
the symptoms as have been seen.
29. Since the holding is adjacent
to the AgrEvo Chemical Plant in Hauxton there is speculation that contamination
may be the cause of the crop problems.
30. There is no factual evidence
from inspections carried out by qualified scientists that any contaminant is
to blame. In addition results of bioassay tests have not shown up any potential
problem.
31. However I have seen classic
hormone type symptoms on bushes and small trees that are on the boundary between
AgrEvo and your holding. These symptoms consisted of up rolled leaves. I have
seen the same symptom on Jerusalem artichoke grown as shelter belting between
the areas of crop on the holding. In these instances small areas of the artichokes
will have the leaves at the top of the shoots up rolled.
32. An area of blackberry variety
Fantasia grown at the top of the field has also exhibited these leaf symptoms
in 1994. Now it must be stated that in 1993 the herbicide Dow Shield, a hormone
type herbicide, was recommended and applied as a spot treatment for the control
of creeping thistles in the blackberries. This herbicide will cause the same
symptoms of up rolling of the leaf if allowed to drift onto the crop, and did
so in 1993. However, I would not have expected the symptoms to persist for over
12 months.
33. Finally, it is of interest
to state that with the field grown strawberries the mature weeds were dying
back just like the crop when inspected in September of this year. This is totally
unexpected as you use very little herbicide, the only one being lenacil which
is a residual herbicide for the control of a range of annual weeds. The main
weeds dying back were creeping thistle, couch and mature knotgrass.
34. If contamination was occurring
it would come either by being blown onto the area or through contamination of
the ground water. Unfortunately, we have not been able to carry out any tests
to prove or disprove this possibility.
Conclusion.
35. Since 1992 the production
of the alpine strawberry at the site at Hauxton has been seriously affected.
A series of laboratory tests have shown the presence of the diseases Phytophthora
and Rhizoctonia. In addition soil compaction has been cited as a problem in
areas of poor plant growth.
36. However, there has been
a series of occurrences where plant[s] have exhibited symptoms of up rolled
leaves, and mature perennial weeds have shown the same symptoms as the strawberries
affected with stunting and die-back. These conditions have not been conclusively
answered and further work needs to be done to answer such queries.
37. The Claimant
did not accept that Dow Shield had drifted on to the blackberries. Subject to
that point, I accept that the statements of fact made by Mr Cole in the passages
from his letter that I have quoted above are correct, including his statements
that certain opinions were held.
38. The Claimant's
experience and his contemporary view as to the cause of the trouble is reflected
in what he said to the press in 1994. An interview with the Claimant is reported
in the Grower Magazine issue of September 1994. The article says, with reference
to the Claimant:
39. He gradually increased
his acreage until 1992 when a virus "nearly wiped us out", causing plants to
die back. It has still not been identified by ADAS but Mr Elliott says it seems
to strike every two or three years.
41. Q. Now, it is right,
is it not, that you noticed from the time you started growing Fraises de Bois,
which I think would be 1986 or 1987, would that be right, first of all?
A. 1987.
42. Q. Yes, 1987. That about
every two years your Fraises de Bois were struck with a mysterious disease,
is that right?
44. Q. So it is right that
every two years from about 1987 onwards, you were having disease problems occurring
with your Fraises de Bois, is that correct?
...
46. Q. The next thing in
coming back to what we were talking about a moment ago, about this disease,
would you take a look in the column that has the word "fruit" over it?
A. Yes.
"He gradually increased his acreage until 1992, when a virus "nearly wiped us out", causing plants to die back. It is has still not been identified by ADAS but Mr Elliott says it seems to strike every two to three years".
48. Did you tell the Grower
Magazine that you had a virus, first of all, that had nearly wiped you out in
1992?
49. A. When we sat down
and we talked about the problems, in 1992 they died, I think I said they ceased
to exist in 1992, I personally think it is journalistic licence.
50. Q. Did you tell the
Grower Magazine, that it had not been identified by ADAS, whatever had caused
the trouble?
A. Yes.
"...but Mr Elliott says it seems to strike every two to three years"?.
52. A. Yes, that is what
they wrote down, but it is probably journalistic licence a little bit; it was
something of that description.
53. Q. Did you tell them
that you had a disease in your crops of Fraises de Bois which seemed to strike
every two to three years?
55. Q. Did you tell them
that you seemed to have a disease which struck your Fraises de Bois crop every
two to three years?
A. No.
A. No.
59. Q. It is right, is it
not, that that was exactly what you told them, is it not?
60. A. No, you just said
did I say there was a disease every two or three years, and I said no.
63. Q. I suggest that you
did say that, and it was the truth?
65. Q. Did you have a recurring
cyclical problem with your Fraises de Bois crop, having what appeared to be
disease striking every two to three years?
66. A. We appeared to have
a problem; I did not call it a disease, I called it a virus.
Q. For disease?
70. In his application made
in 1993 for the Sunday Telegraph award the Claimant had stated:
... we have found the crop to be very susceptible to a particular pathogen not normally found on normal strawberry crops in this country. Therefore it took ADAS a long time to identify it.
71. Making allowance for the
fact that the Claimant was deaf and may have misheard some of the questions
put to him by Counsel, I am satisfied on the above evidence that the Claimant
did tell the journalist on the Grower what she recorded in the passage I have
quoted.
Some Other Factor?
72. In his letter
of 8th December 1994, Mr Cole stated that the Rhizoctonia found in the field
plants in 1992 was felt to be secondary to other main causes of the problem,
which were never determined. It is clear from that letter as a whole that Mr
Cole was expressing his own view and that of others that some factor in addition
to disease was required to solve the intractable problem of explaining the full
extent of the damage. He mentioned contamination of the groundwater as a possibility.
73. Mr David Yarham
gave evidence of fact before me. He is a plant pathologist. He worked for ADAS
and its predecessor the National Agricultural Advisory Service from 1964 to
1995. From 1992 he was head of the plant diagnostic laboratory for ADAS. In
1992 Mr Yarham examined samples of field-grown strawberry plants sent to ADAS
by the Claimant. Fusarium and cylindrocarpon were found on the plants. Mr Yarham
reported at the time that he thought that those weakly pathogenic fungi were
aggravating a problem caused by some other factor. Shortly afterwards, Mr Yarham
reported that field-grown strawberries received from the Claimant yielded Rhizoctonia
from the roots and crowns. Although Rhizoctonia could be pathogenic to strawberries,
he suspected that it was aggravating the effects of some other problem. He said
in evidence that he did not then hazard a guess what that other cause might
be, the suggestion put to him by Counsel being that he was thinking in terms
of disease. After making those two reports, Mr Yarham visited the field. He
said in evidence in relation to that visit:
74. I was even more confused
after I visited the field than before, because I was not seeing symptoms which
appeared typical of disease, yet I was seeing collapse of plants.
75. In 1993 strawberry
plants grown in the field showed symptoms similar to those shown in 1992. The
plants were tested for viruses, nutrient deficiency and nematodes with negative
results. Phytophthora (species not identified) was detected in the crown, and
with no further evidence Phytophthora was reported at the time as the cause
of the problem. Mr Yarham gave this evidence, with regard to the period after
his visit to the field:
76. In subsequent samples taken
from the holding Phytophthora was sometimes found. Rhizoctonia, fusarium and
cylindrocarpon were found rather more consistently, but since even the worst
(Rhizoctonia) is a relatively weak pathogen of strawberries, we were left with
the strong impression that some other factor (which we were unable to determine)
was weakening the plants and rendering them more vulnerable to attack.
77. He accepted in cross-examination
that the pattern of expansion of the damage was consistent with disease but
he said:
78. I would not have expected
disease to have spread quite so dramatically. I would expect a disease to be
more localised to individual patches.
79. He accepted that the pattern
of damage was also consistent with insect pests and that the vine weevil, which
had been found in the polytunnel in 1992, could be damaging to alpine strawberries.
When he visited the field in 1992, said Mr Yarham, he did not see evidence of
damage caused by pests.
80. The following
further evidence of Mr Yarham on this topic is worthy of mention:
81. Q. Yes. At the end of
the day you were left, you thought, with a problem with Mr Elliott's strawberries,
where you had identified a number of problems, but you thought at the end of
the day that there might be another element involved in his overall problem,
is that correct?
82. A. We did, Sir. We had
found, as you said, minor pathogens such as would cause soil sickness. We had
found a major pathogen, but not consistently, even the minor ones had not been
consistent. We had found evidence of soil compaction in parts, but again that
was not consistent.
83. So we had, as you quite
rightly say, found a complex of factors influencing this crop, but without anyone
having hinted at what might be the cause of it, we had come to the conclusion
that there was some other factor that we had not got a finger on that was also
involved here.
84. Q. Is it something that
you considered that parts of the crop, the problems in parts of the crop, were
readily explicable by one or other of these factors?
85. A. The problems in parts
of the crop were certainly readily explicable in terms of these factors.
86. Q. Do I take it then
that on a geographical basis, there were other areas of the crop with respect
to which you could not find a satisfactory explanation?
87. A. I only visited the
field myself once in 1992 and other colleagues visited later. But the impression
I was getting from what I had seen myself, and what I was getting from their
reports later, was although they could, as you quite rightly say, find factors
which could certainly influence the health of strawberries, these were not uniform
in their distribution or occurrence and that there was some other factor also
involved which we never did manage to put our fingers on.
...
88. My impression was that
the poor performance of the crop overall suggested that there was some factor
affecting the field overall, exacerbated in some areas by the important soil
conditions and the pathogens, but I had no conclusive evidence on that.
89. Q. And no evidence that
the other cause was in fact chemical contamination?
A. I had none.
90. Dr. Michael
Foley gave evidence before me. He was a microbiologist with specific expertise
in the biological control of fungal pathogens. He was employed by ADAS as a
plant pathologist from 1974 to 1995. From December 1995 he was an independent
consultant. Dr. Foley said that it is sometimes difficult to distinguish between
symptoms of some diseases, and between diseases and physiological stresses in
the field, and symptoms overlap. Dr. Foley visited the site on 5th October 1994
to investigate poor growth in the strawberry crops in areas A, B and C. He diagnosed
the main problem in area A as crown rot. There were plants in area A that did
not have symptoms of crown rot, but he could not recall, in the absence of information
in his contemporaneous report, whether those plants, which were in the majority
in some parts of area A, had any severe symptoms of plant wilting or leaf collapse.
The crowns of plants from area B were not stained or rotted; those from area
C were either free from vascular staining or from rotting or, in a minority
of cases, were completely necrosed (i.e. dead). Plants from areas B and C were
apparently free from Phytophthora crown diseases. P. cactorum was not a probable
cause of the demise of plants in samples from areas B and C. Verticillium wilt
was most probably not the cause of the problem either. Bindweed plants sampled
from areas A and B showed brown "scorching" of most leaves. Their roots were
healthy, and no pest or disease was detected to account for the scorching. In
cross-examination Dr. Foley was asked about the bindweed:
91. Q. Are you saying that
you cannot relate it to the strawberry problem from your investigations?
92. A. It is difficult to
make an opinion on this. We have strawberry plants with brown roots and brown
necrosis in the leaves, and we have bindweed with clean healthy roots and necrosis
in the leaves. They are completely different plants, but if you want to try
and make some sort of link, you can say that the necrosis in the strawberry
leaves and the necrosis in the bindweed leaves were nothing to do with root
disease. Now, that is a very tentative and difficult -- a distant link. You
asked me for an opinion, but it is rather distant.
93. Dr. Foley was cross-examined
on a report of ADAS dated July 1994:
94. Q. Right. So you have
got the two apparent problems that is poor growth and discoloured foliage, at
the top of the plant, and you have got a rot in the crown of the plant with
healthy roots. So where is the problem likely to be in this plant? It is in
the crown is it not?
95. A. Well, there is some
necrosis in the root tissue near the crown and also there is , as you say, some
rot in the crown, yes.
96. Q. So it is likely that,
if one follows the logic of the plant itself, the point where there is a pinch
in the pipe, if I can put it that way, appears to be in the crown, so that nutrients
are not actually getting into the leaves and causing the problem to be seen
in the leaf; is that right or wrong?
97. A. I think the point
that I am trying to make is that we are finding our fungi in a crown which has
not got an extensive rot, and that the situation that arose to induce that rot
is not given or determined.
98. Q. Right. Can we take
this in two stages. Is it right that, from the description that you have got
on page 105, that the most likely reason why this plant is showing poor growth
and discoloured foliage is because there is something wrong with the crown?
99. A. I do not think I
can go so far as to say that. There might be some other factor in this plant
which is causing the poor foliage which in fact is not due to the Rhizoctonia
in the crown. The Rhizoctonia is invading the crown, which is part of the plant
being stressed by some other factor.
100. As to the problem in areas
B and C, Dr. Foley summed up his views in cross examination as follows:
101. A. But I am not convinced
that we actually did explain the problem largely as a disease and soil conditions
problem. There were certainly indications, but I do not think that we came to
the conclusion that -- I, certainly as a pathologist, would not come to the
conclusion that we could explain it largely by disease.
...
102. We come back to the
root browning, which is the browning or the blackening of the outer sheaf of
the roots, from which we found, as you said, a miscellany of fungi. Those fungi,
as you say, contribute to the decline of plants, and we call that soil sickness,
but we also know that those fungi can be present in plants which have already
started declining from some other factor. I did not come to any conclusion as
to what that other factor could be. It was rather inconsistent. There was some
compaction there, and I would say that where the compaction, where the soil
was quite hard, then perhaps the roots were struggling and then the fungi could
get into those weakened roots, but that did not seem to be consistent enough
in Area B to make that the major conclusion, and that is as far as I could go.
103. I heard evidence
from Dr. Irene Ridge, who was called by the Claimant as a witness of fact. She
had degrees in botany and in plant physiology and had been employed by the Open
University since 1972. She had produced numerous research papers on subjects
including cell growth in plants, the uptake of nutrients by wetland plants and
the alleviation of metal toxicity in plants, and numerous Open University teaching
texts on subjects including plant physiology.
104. Dr. Ridge was
instructed in about August 1995 by HM Inspectorate of Pollution to act as an
independent consultant for them concerning the area of land around the Defendant's
factory at Hauxton. She visited the Claimant's land on 5th September 1995 in
company with others. She made a report of her findings and opinions dated November
1995 which was in evidence. There were also in evidence a response to her report
produced by Dr. I. A. Garner, an environmental scientist employed by the Defendant
who also gave evidence before me, and her reply of 3rd July 1996. I was impressed
by the meticulous fairness of Dr. Ridge as a witness. In her report, she summarised
her conclusions in relation to four areas of land around the factory, including
Packhouse Field. Her conclusions in relation to Packhouse Field were as follows:
1. There is evidence of extensive but often patchy damage to vegetation... .
2. The appearance of plants suggests that damage is caused mainly by toxic chemicals. I found no evidence for a common biological cause (such as pests or pathogens) and the patterns and extent of damage were not consistent with agricultural spray damage.
3. Drought in 1995 may have exacerbated the damage (or vice versa: chemical damage may have increased sensitivity to drought) but... drought cannot be regarded as a probable main cause... .
4. No firm conclusions can be reached about the nature of toxic chemicals. Some symptoms (e.g. twisting and distortion of shoots) are consistent with damage from selective herbicides; others (e.g. leaf cupping) are consistent with high manganese levels; analysis of plant tissues in [Packhouse Field] indicates that Mn levels were in the range where damage could occur. In no case, however, are symptoms reliably definitive. Several different kinds of chemical damage appear to be occurring.
5. Two sources of toxic chemicals are indicated:
(i) aerial and probably originating from the AgrEvo factory ...
(ii) in groundwater and from an unknown source or sources. The AgrEvo factory, pipeline P and the [WWTP] are possible sources, particularly for [Packhouse Field]... .
6. ...
(iii) Aerial pollution cannot be ruled out for [Packhouse Field] but the patchy nature of damage here indicates that groundwater is involved and more likely to be the main source.
105. High levels of total manganese
were recorded in surface water close to the pipe trench in samples taken in
January 1995 (Dr Neil Ward) and May 1995 (taken by Mr C Elliott, analysed by
Greenpeace); the latter samples also contained high levels of mercury (320µg/1).
High and potentially toxic levels of manganese found in plant tissues by Dr.
Ward suggest that the amount of Mn available for uptake by plants was high.
The only analysis of organic chemicals which I have seen relating to [Packhouse
Field] (Greenpeace, report dated June 13th, 1995) contained only qualitative
data. Potentially toxic organic chemicals were present in both surface and groundwater
samples close to the pipe trench P (including hexachlorobutadiene) but without
information about concentration, it is not possible to relate these chemicals
to damage observed in [Packhouse Field].
7. Groundwater Pollution
(i) The patchy nature of damage to plants in [Packhouse Field] ... provide[s] the strongest evidence for groundwater pollution. ... severe damage is relatively recent and hydrogeological data are important for identifying the likely source(s) and timing of pollution events. ...
106. In [Packhouse Field] high
levels of manganese in soil, plant tissues and groundwater ... indicate that
this is one of the most likely causes of damage to vegetation with a probable
origin in groundwater. Numerous organic chemicals have been detected in groundwater
here ... with very high levels of two insecticides and the solvent TCE in the
north west corner; concentration gradients suggest a source to the north or
west, possibly the effluent treatment plant or an agricultural site where chemicals
were dumped. The effects on vegetation of these particular chemicals are not
known to me but the steep concentration gradients, with apparently non-toxic
levels in the centre of [Packhouse Field] indicate that they are not the sole
cause of damage here. Synergistic effects between organic and inorganic chemicals
in groundwater are quite possible, however: substances present at non-toxic
concentrations may interact to produce overall toxicity. ...
...
4. More careful and repeated surveys of vegetation would be helpful, ideally using comparable undamaged sites as controls. The hedge parallel to the pipeline in [Packhouse Field] requires more detailed study than I was able to undertake.
108. The two insecticides
to which Dr. Ridge referred in the above conclusions were schradan and hempa;
TCE was trichloroethylene. She amended her view to "relatively high concentrations
of hempa and schradan"; and she accepted that hempa was no longer primarily
used as an insecticide. It should be noted that in that summary of her conclusions
Dr. Ridge was not referring only to strawberries, raspberries and blackberries.
She observed and considered in her report damage also to weeds, Jerusalem artichokes,
willows and the hedge on the northern boundary of Packhouse Field. For example,
in relation to Jerusalem artichokes she said:
109. The extremely patchy nature
of abnormalities (cf. rows a1 and a2) is inconsistent
with general aerial pollution. Drought also seems an unlikely explanation: it
would require a very marked difference in soil moisture over a short distance
and there was no visible evidence for this. The apical yellowing is also inexplicable
solely in terms of drought.
110. Damage from chemicals distributed
patchily in the soil is again indicated. If tubers in row a2 were
closer to the surface than in row a1, as suggested above (but not
checked), then it may be that the early growth of plants in a2 escaped
the influence of a chemical occurring deeper in the soil. However, this does
not explain the similar appearance of plants along the southern field boundary,
where no rotavation occurred. Damage from high manganese levels in the surface
soil is a possible explanation and analysis of leaves and tubers would be useful
to check this suggestion.
112. These had been planted
as a windbreak along row w and at the western field boundary (where alders were
also planted). Trees along row w had been cut back two years previously. Leaves
on the current year's stem were sparse (possibly an effect of drought) but also
showed considerable twisting and curvature, especially towards stem tips (photographed,
IR). On stems which had grown in 1994, a clear kink occurred at one point (photographed,
IR), indicating a period of growth abnormality: no unusually severe attacks
by fungal pathogens or insect pests had been observed in that year so that a
biological explanation for the kinking is unlikely. Trees became progressively
smaller towards the northern field boundary and the pipeline (P).
113. On the western field boundary,
willows were stunted: stem elongation for 1995 was 10-20% of that in row w.
Alders also showed signs of distress (according to Mr Elliott, for the first
time), with much leaf drop (possibly a drought effect) and also leaf yellowing
and, in the corner at x (Figure 1), directly opposite to the end of the old
(disconnected) pipe trench, marked leaf cupping (photograph 15). Willows at
x showed especially marked twisting at shoot tips.
- The general pattern of symptoms here is consistent with chemical damage through the soil, exacerbated by drought. Tip distortion in willow resembles that caused by selective herbicides but cannot be regarded as clear evidence for this.
- The increasing severity of growth inhibition towards the northern boundary could result either from some factor moving through the soil, possibly from the pipeline; or from localised aerial pollution from the north east.
- The leaf cupping which was especially pronounced in alder is a common symptom of manganese toxicity. Given the high levels of this ion measured by Dr Ward in surface water in this general area, I regard manganese as a likely cause. The source of excess Mn, aerial or via groundwater, is unclear. In soil samples from [Packhouse Field] close to the hedge H, highest levels were found in surface soil rather than sub-soil. This could result from aerial deposition; or because salts have concentrated at the soil surface as water moved up through the soil and evaporated at the surface in hot, dry conditions, which prevailed in the summer of 1995. Because of the variability in Mn levels, I favour a groundwater origin.
115. Q. Do you have any memory
of the events of the day, independently of what is now recorded in the report?
116. A. Yes, I do. It was
an unusual assignment and I have a pretty clear memory. In particular, I can
remember on first approaching Packhouse Field, which was the first field that
we visited, the impression of a very damaged field. When you looked closely
the reason for this was that there were large bare patches in it. Everything
seemed to be bare in these areas; it was a most odd appearance.
117. I particularly remember
the rows of Jerusalem Artichokes, which I have grown. It is an extraordinary
tough plant, rows of them which would be perhaps half dead, but then patchily
growing at the end of the rows, a most peculiar appearance.
...
118. Q. You set it all out
in writing but perhaps for my Lord's benefit, can you help him about any particular
things that struck you of those that are there set out?
119. A. Of the Alpine Strawberries
there was very little visible, essentially. They were very poor plants. In some
cases, again patchily, they had completely died. The weeds among them had also
died. This is what particularly struck me. Had there been some specific disease
of Alpine Strawberries, I would not have expected the weeds to die.
120. The Jerusalem Artichokes,
as I mentioned earlier, were remarkably damaged, and this, because I have knowledge
of this crop, struck me particularly. There seemed to be several kinds of damage.
Some had died completely and others showed leaf deformities and discolouration
of leaves and it was again, rather patchy.
121. The willows, generally
very poor growth, and I did observe, but I do not know the significance of this,
that there was a kinking towards the ends of some of the shoots and I mentioned
this.
122. The blackberries on
first sight looked relatively normal, except that occasional plants had died
completely. But when you looked more closely, despite there being quite a good
crop of fruit, you could see that there was often distortion at the ends of
the shoots, damage and distortion to some of the leaves, although they were
not falling off and brown. So again, rather peculiar patchy damage, and I suppose
knowing how much blackberries grow, these plants have not grown an enormous
amount.
123. The hedge was just
a rather sickly looking hedge, with a number of dead trees in it, some trees
showing damage. It was very difficult at this time of year, because of the drought,
to know how much of the tree damage was actually drought damage, but it was
a strangely patchy hedge, again patchy. It was this overall patchiness that
led me to feel that aerial pollution could not be the answer here. I would not
have expected to see such patchiness, but that some form of underground or spray
type damage had to be the answer. I could see no reasonable biological explanation
in terms of pests or grazing damage, for instance. It was too varied; too widespread.
...
125. Mr Laurence West,
Counsel for the Defendant, asked her:
126. Q. Your inspection of
Packhouse Field; could it be fairly characterised as an educated observation
of the site to identify areas where further observation and scientific investigation
might profitably be carried out, in order to confirm or refute the question
of presence or absence of chemical contamination?
...
129. Q. "(2) Observations
were made at the end of an exceptional period of drought which could either
exacerbate any chemical damage to root systems (plants with damaged roots will
be more susceptible to drought); or lead to a spurious impression of chemical
damage where none existed."
A. Yes.
131. Q. (3) The term 'chemical
damage' as used above and subsequently in the report means abnormal growth or
death of plants caused by unusually high levels of a chemical substance (S).
The substance may be synthetic or occur naturally at low concentrations (for
example, inorganic ions) in air, soil or groundwater.
132. Does that fairly mean that
where you use the term "chemical damage" one also has to read into your use
of that term the qualification that, because you were making your observations
at the end of an exceptional period of drought, that itself might lead to a
spurious impression of chemical damage where none existed?
135. A. Well, it did look
very strange in places to me; I did not feel it was a happy area at all. Things
were wrong.
136. Q. Now, you were taken
to a particular passage on page 94, and in answer to my learned friend, accepted
that it was possible that an exceptional period of drought itself might lead
to a spurious impression of chemical damage where none existed.
138. A. If there were plants
which were suffering purely from drought damage, and there was no chemical damage,
then it is possible that they could have symptoms similar to chemically damaged
plants. The main thing which made me feel this was probably not the case was
the patchy nature of the damage.
139. If you have got drought
damage you would expect to see it certainly over quite a large area, and of
certain types. Typically, for example with trees, it is the upper branches that
will be affected. You may have leaf fall, browning, but you would not expect
distortion of leaves. There were so many different kinds of damage that drought
overall, although I am sure it did confuse the picture, I could not probably
pick out some areas where there was damage because it was obscured by drought
damage, and in other places quite possibly the damage was apparently much worse
than it was because of the drought.
140. I cannot rule out the
possibility that in a few cases there may have been drought damage and not chemical
damage; it is possible. But mostly I felt not.
141. Q. Let us take for instance,
so that you can perhaps elaborate that, if you wish, the Jerusalem Artichokes?
142. A. No, I simply could
not believe drought damage for that. I have grown Jerusalem Artichokes over
the 1973/4/5 drought period with not a hint of damage on very similar soils.
The death of Jerusalem Artichokes in this dramatic way, I must say I have never
seen anything like it. It was quite extraordinary. They had very stunted growth.
That might have been drought. But the actual death of large numbers of these
remarkably tough plants, and then the patchy regrowth which was so strange,
was very striking, and certainly could not be drought.
143. At the end of her evidence,
she gave the following answers:
144. JUDGE HAVERY: Dr Ridge,
is there any particular reason why drought damage should not be patchy but chemical
damage is patchy?
145. A. You would expect
any patchiness in drought damage to be quite wide swathes because it would relate
to some pattern of drainage. So, for instance, in the tree nursery there was
quite a large area of tree damage, and drought damage, as I said, is very likely
to contribute there. The relatively small patches in Packhouse Field did not
appear to me consistent with drought damage.
146. JUDGE HAVERY: Why should
that mean there is chemical damage? If the chemical comes through moisture in
the soil would it not have the same pattern as drought damage?
147. A. You can have plants
going to different depths with their roots. I was quite exercised by this. You
may get areas where because of perched water tables you have got actually the
water at different levels that the plant is actually reaching. I had no very
clear explanation for that, the patchy damage, but I could not explain it as
aerial. That did not seem to make sense at all. It had to be something, therefore,
coming through the soil. The sort of patterns I saw, I did not think were consistent
with drought damage.
148. JUDGE HAVERY: When you
talk about the perched water and so on, does that not apply also just to pure
water, drought or rainfall, or not?
149. A. It depends where
the plants are getting their water from. Most of them will be getting it from
fairly near the surface, but the soil could stay somewhat moister, if you have
got a perched table.
153. MR WEST: In relation to
the small patchy areas on Packhouse Field, I think you are thinking, are you
not, mainly of the patterns in the Fraises de Bois crop?
154. A. The Fraises de Bois
and to some extent the raspberries.
155. Q. Let me deal with
the Fraises de Bois because it is one about which we know something?
A. Yes.
156. Q. If in fact the Fraises
de Bois crop was subject to a disease, which affected the crop in expanding
patchy areas, and the effect of the disease was either to attack the roots or
to attack the crown, that is just the sort of damage that would be exacerbated
by drought; is that not right?
157. A. It is true, but not
the weeds. The patches affected weeds as well and there is no disease that would
affect them all.
158. Q. Am I right that in
respect of the Fraises de Bois --
160. Q. -- that the patchy
nature of the effect that you saw on the field might be the effect of drought
on already damaged plants?
161. A. This is what I will
call exacerbated damage, yes, drought damage.
162. Mr Richard
Makepeace is the Managing Director of Oxford Agricultural Consultants Limited,
a specialist pesticide and crop protection consultancy. He worked for the Ministry
of Agriculture from 1967 to 1981 in the Agricultural Chemicals Approval Scheme.
He has a degree in botany and agriculture, and has numerous publications on
those subjects to his credit. He gave expert evidence before me on behalf of
the Defendant. He wrote in his report:
163. There appears to be a repeating
pattern of growth of the alpine strawberries in Packhouse Field. Alpine strawberries
are planted in year one. They grow and successfully crop in year two and degenerate
and die in year three. This does not accord with the effects of herbicides.
... If there were any herbicides present at phytotoxic levels in Packhouse Field
the crop would not have given an acceptable yield of marketable fruit. Plants
would have been distorted immediately after planting and the fruit of variable
quality in the following year. The collapse in year three was not associated
with particular symptoms of herbicide effect. The cycle of establishment - growth
- collapse appears to be typical of a disease such as crown rot and not herbicide
damage. Herbicide effects are most noticeable on young plants at the seedling
or establishment phase and would have prevented crop establishment in year one.
Plant diseases, such as Redcore in strawberries, normally occur on growing plants
and start in one or two places and spread outwards in circular patches. Herbicide
effects do not spread in this way but either appear randomly in individual plants
throughout a crop or uniformly affect the entire crop.
Boreholes and Chemicals
164. From 1992,
numerous boreholes were drilled on the Defendant's land to enable the soil and
the groundwater to be analysed for the possible presence of polluting chemicals.
The locations of those boreholes appear on the map at Appendix 1. The boreholes
are in two series. One series of boreholes is numbered BH 1 to BH 20. The other
series, known as the piezometer series, is numbered simply 1 to 104.
165. From 1995,
boreholes were drilled on the Claimant's land. The locations of those boreholes
appear on the sketch map at Appendix 3. The first series in point of time is
boreholes B, B1, B2 and B4, all of which were on Packhouse Field, and B5 and
B25, which were on area C. In 1996 a further series was drilled on Packhouse
Field, designated MAY 1, MAY 2, MAY 2B, MAY 3, MAY 3B, MAY 4, MAY 5 and MAY
5B.
166. More chemicals
feature in this case than those which the Claimant claims caused, or may have
caused, the damage. The relevance of the others is principally to the question
of the flow of groundwater. In this judgment, I do not refer to all the chemicals
that have been mentioned in the course of the hearing. The principal chemicals
to which I do refer are, for convenience, listed, with a brief description of
each, in Appendix 4. They fall within four categories: herbicides, solvents
and organophosphates, all of which are organic chemicals, and inorganic chemicals,
in which term I include ions. All of the herbicides are, or were at relevant
times, manufactured or handled in quantity on the Defendant's land. The same
applies to the solvents, save that chloroform and trichloroethylene were handled
only in small quantities for laboratory use. The organophosphates were not manufactured
or handled on the land after the Defendant's predecessor company purchased the
site in 1981. Until 1991, the Defendants manufactured on the site prochloraz-manganese
complex; the process involved refluxing prochloraz with manganese chloride,
an inorganic compound.
167. The concentrations
of chemicals found in the groundwater under the Claimant's land and under the
Defendant's land, with dates of sampling or analysis, are set out in various
appendices which I mention below.
Mechanism of Flow To Packhouse Field
168. The mechanism
by which the damage is alleged by the Claimant to have been caused is that the
damaging chemicals flowed as solutes in the groundwater from the Defendant's
land to the Claimant's land. The source of the chemicals was said to have been
leakage from the effluent pipe leading to the waste water treatment plant.
169. Dr. Roger Ashley,
a hydrogeologist, gave expert evidence on behalf of the Claimant. He explained
the mechanism in this way. The general flow of groundwater in the vicinity is
approximately northwards from the Claimant's land to the Defendant's land and
on to the rivers Cam and Riddy. However, the water table under Packhouse Field
is generally fairly level and the rate of flow is correspondingly slow. Beneath
the soil of Packhouse Field lies a layer of chalk marl which has a low permeability.
At the northern boundary of Packhouse Field, which is the northern boundary
of the Claimant's land, that layer of chalk marl comes to an end. North of it
lies a more permeable medium in the form of sand and gravel overlying silty
clay with gravel. Thus, after heavy rainfall, surface water tends to flow from
Packhouse Field down a slight gradient to the Defendant's land, where it permeates
downwards and can form a mound. Where the water table forms a mound, there will
be a reverse, i.e. southward, flow of ground water from the Defendant's land
to the Claimant's land. Nevertheless, as was agreed between Dr. Ashley and Mr
Michael Morrey, a hydrogeologist who gave expert evidence on behalf of the Defendant,
most of the groundwater beneath Packhouse Field originates as rainfall on Packhouse
Field and on a chalk marl outcrop to the south of it. Dr. Ashley was unable
to say for how long, or how often, groundwater would flow southwards from the
Defendant's land to the Claimant's land. But he did say that it is a common
characteristic that water tables that rise as a result of substantial infiltration
during the winter may take most of the summer to dissipate. The greater proportion
of the water in the mound would dissipate northwards through the more permeable
medium, though there were two thin fractured zones within the chalk marl which
would permit more rapid horizontal flow there than would otherwise be the case.
170. The next stage
in the mechanism was this. Groundwater rises to a considerable height in chalk
marl by capillary action. Chalk marl is fine-grained, a typical pore diameter
being 1 micron. The narrower the pore, the higher the level to which the water
rises. In theory, the water can rise in chalk marl by several meters above the
groundwater; in practice the rock contains features such as wide horizontal
fissures and fractures which break the rise. Dr. Ashley considered it likely
that the capillary zone of water reached the top of the bedrock and possibly
extended into the soil zone.
171. The situation
is not static. If the soil is comparatively dry, evaporation and transpiration
by plants will draw water from the pores which will be replenished from the
groundwater. Any plants whose roots are sufficiently deep, especially those
whose roots reach down to the top of the bedrock, will then be taking water
from the groundwater, together with any pollutants that may be dissolved in
it. If, on the other hand, it is raining or heavy or prolonged rainfall has
saturated the soil, the general movement of water will be downwards and the
plants will not be taking up water from the groundwater.
172. I accept Dr. Ashley's
explanation as a realistic explanation of the mechanism.
Water Flow to Area C
173. Dr. Ashley
said (and I so find) that the groundwater flow pattern south of the point where
the waste water pipeline crosses the A10 road is controlled by the drainage
system around the new warehouse constructed adjacent to the A10 and north-east
of area C in the late 1980's or early 1990's (for the A10 and the warehouse
see Appendix 1: for the pipeline, see Appendix 3). The drainage system draws
groundwater towards it. Before the warehouse was constructed, the groundwater
recharge mound in the northern part of the site would have extended much further
to the south than it does now, and could have extended far enough to drive water
west and south-west towards area C.
174. I set out in
Appendix 5 borehole groundwater readings for the relevant area of the Defendant's
land. The earliest of the readings date from 1992. They show significant concentrations
of various chemicals. The figures vary substantially with time and position.
I infer that significant concentrations of such chemicals existed in the same
ground before the warehouse was built. I am satisfied that that ground is the
source of such of those chemicals as were found under area C in boreholes B
5 and B 25 (see Appendix 6). The evidence is quite insufficient to satisfy me
that a source of the chemicals was leakage from the effluent pipeline.
175. I reach the
same conclusion in relation to the other organic chemicals set out in Appendix
6 and found in boreholes B5 and B25. Although those chemicals, whether or not
looked for, were not found in the boreholes mentioned in Appendix 5, their source
must have been the same.
Leakage From The Pipeline
176. The pipeline
was enclosed at the end of 1994. Until then, leakage of effluent from it was
a persistent problem. On 17th June 1983 Dr. Garner wrote a memorandum in which
he said:
177. Recent work on the CTZ
pipeline along the field has led to the pollution and destruction of areas of
grass by triazines.
178. On June 1st works personnel
split a flange on the pipeline and then forced water through the line. The resultant
2 metre high, 180° arc of water distributed wastes from the pipe on to the shrub
vegetation and adjacent sports field. A sample of this "water" was found to
be distributing active triazine concentrations of approx. 80 mg/1 simazine and
90 mg/1 trietazine. There is now a noticeable yellow patch developing and the
bushes show signs of leaf scorch.
179. On June 13th and 14th Dyno-rod
contractors cleared the rest of the CTZ line. The usual collection of waste
water at the WWTP fence was great enough to flood on to the field in this area.
The waste water spread solids containing approx. 3000 mg/1 Trietazine, 3300
mg/1 Simazine and 700 mg/1 Atrazine. There is already bare soil in this area
and a noticeable yellowing of the grass nearby is developing.
180. With regards to these incidents,
they serve only to emphasise the acute nature of the perennial problems associated
with these pipe cleaning practices. Reclamation of the damaged land is not feasible
until the pollution source is more than acknowledged as a problem and positive
preventative measures are taken.
181. On 29th April 1987 Dr.
Garner wrote a further memorandum in which he said this:
182. Spillages of effluents
from the pipeline on the sports field [north of Packhouse Field] have, on several
occasions, destroyed areas of vegetation in its vicinity. Most noticeably patches
of grass are killed leaving the ground bare. Persistent toxic residues prevent
re-seeding or natural recolonisation without appreciable effort being made to
restore these areas.
183. A lowering of the quality
of the environment in this area is annually noticeable to all who use the field
for recreation. In particular, a large area of barren ground persists behind
the squash courts. This has increased in size over the past three years as a
result of spillages from burst or broken pipes, or from triazine residues emanating
from pipeline clearing operations. Spillages of effluent flow to the WWTP-end
of the pipe trench and overflow on to this ground. This cumulative pollution
has rendered it inappropriate to restore this land, especially if there are
no reasonable assurances that future spillages will not occur or be contained.
These assurances cannot reasonably be given whilst the present effluent transfer
lines continue to be unprotected.
184. On 8th February 1991 another
incident of spillage from the pipeline occurred close to the north-west corner
of Packhouse Field. Mr David Weighton, at that time the Defendant's Head of
Field Station, who also gave evidence before me, wrote a memorandum to Dr. Garner
dated 28th February 1991 in which he said:
185. I notice that a number
of our trials at Hauxton have been rendered useless and part of our field apparently
contaminated following what appears to have been a leak from a burst pipe.
vii) what steps will be taken to minimise the risk of it happening again, given that this is not the first such incident.
187. I should be grateful if,
in future, we could be notified immediately of any such incident so that we
may endeavour to obtain some results from the trials before the crops die.
188. As a postscript I am also
concerned with an area further into the field where there appears to be some
form of 'creeping contamination'.
189. As to the statement "given
that this is not the first such incident" Mr Weighton said in evidence that
he thought that that was an exaggeration which he put in because he was cross:
he could not remember another leakage having occurred. It is clear, however,
that the statement is correct. He thought that the area covered by the spillage
was 200 square metres, though there is a memorandum written at least three years
later that puts it at 600 square metres. That memorandum, written by a Mr Rothwell,
who did not give evidence before me, contains the passage:
1991 Burst pipe on corner.
approx. 600m² "spoiled" trial area 1991 and the following year 1992. Problems still there 1993 and 1994 when ploughed.
190. On 7th March 1991 Mr James
Butterworth, who at the material time was the Defendant's Head of Safety and
Environment in the UK, based at Hauxton, and who also gave evidence before me,
wrote a memorandum to yet another witness in this case, Mr Clydesdale, with
reference to Mr Weighton's memorandum, in which Mr Butterworth said:
191. From what I understand
at present, the damage was caused on Friday, 8 February after the heavy overnight
snow and sub-zero temperatures. Apparently staff from Production and Engineering
Departments agreed to break one of the effluent lines near Waste Water Treatment
in order to try and clear it of blocked material and improve the flow from the
Works site. Staff from Waste Water Treatment were not involved (RIK being away
on a course) and no-one thought to inform either Ian Garner or myself of the
possible damage to crops in the vicinity. While appreciating the difficulty
of operating in such freezing temperatures at the time I believe, nevertheless,
that much more could have been done to ensure that any surplus liquid did not
spread over such a wide area. Clearly the action taken goes against the spirit
of our environment policy and the environmental guidelines set by Schering AG.
192. For the longer term I believe
it is essential that a project be raised to provide adequate frost protection
to the transfer lines from the manufacturing site to the WWTP and to provide
for an adequate lined trench underneath the pipe runs in order to contain any
spillages and thus ensure that further contamination of soil or groundwater
cannot occur.
193. Mr Clydesdale was the Defendant's
Director of Operations and had been Works Manager at Hauxton until 1991. He
considered that the spillage would have done no harm to the Claimant's land.
The following exchange took place in the course of his cross-examination:
194. Q. What I want to know,
having agreed with that, Mr Clydesdale, that within the preceding six months
of your conversation with Mr Cawte, you had had two pipeline spills, one of
which had damaged trial crops, a matter of yards from the Claimant's Packhouse
Field; on what basis could you possibly assure Mr Cawte that the Claimant was
safe from your operations?
195. A. Because we believed
that the spills that we had had in those areas were localised and cleaned up
immediately, particularly when I looked at the first incident in December, this
involved Clofentezine, which was an acaricide, and clearly would have no herbicidal
impact, and we believe that any spillages would be contained within the trench
and would be localised by virtue of the type of soil, and geographically, looking
at the land, believing that Mr Elliott's land being higher than ours, that the
contamination would not flow uphill. These were considerations that were taken
into account as part in the reassurances to Mr Cawte.
196. Mr Butterworth wrote a
paper dated 13th September 1991 which included the following passage:
197. The long lengths of pipework
between the manufacturing site and the treatment plant do occasionally leak
because of joint failure or freezing/bursting. There is then the risk of contaminating
groundwater (an offence under the 1989 Water Act) and of adverse publicity from
adjacent landowners. Alternative ways of dealing with this, through the provision
of improved pipework or a containment trench, are being evaluated.
198. On 17th March 1992 Mr R
C Aspin, the Defendant's Synthesis Plants Manager, wrote this:
199. N.B. High specification
process effluent lines CANNOT be guaranteed not to leak, keeping them on the
surface so leaks can be seen means that by the time a leak is spotted, it will
be too late. Putting these pipes in a covered lined trench with a high level
alarm, protected collection sump, is the only way of being sure of not causing
off-site contamination.
200. Mr Butterworth in cross-examination
agreed with that statement.
201. It is abundantly
clear from those memoranda and the evidence given by the Defendant's witnesses
to whom they were put that leakage from the pipeline was a not infrequent occurrence.
202. Samples of
effluent that leaked from the pipeline on 2nd January 1996 in consequence of
a burst were analysed by the National Rivers Authority and by the Defendant.
Various herbicides and other chemicals were found: figures of their concentrations
are given in appendix 7.
Source of Organic Chemicals Under Packhouse Field
203. All the organic
and other chemicals found in the groundwater under the Claimant's land and mentioned
in appendix 6 are, or have been, manufactured or handled on the Defendant's
land by the Defendant or its predecessors. Most of them have been detected in
groundwater under the Defendant's land. Some of them, including some not detected
in groundwater under the Defendant's land, were found in the effluent sampled
from the effluent pipe that burst on 2nd January 1996. Chloride and manganese
can occur naturally in groundwater but can also come from products manufactured
and handled by the Defendant. I consider the chloride and manganese separately.
204. It is in issue
whether the chemicals came from the Defendant's land. It has not been suggested
that the organic chemicals occur naturally. Although Mr Elliott's records of
his applications of chemicals to his crops were not necessarily complete or
reliable, it has not been suggested that he applied any of the chemicals mentioned
in appendix 6 to the fields he occupied. I am satisfied that he did not. It
was suggested that the chemicals could have come from other land to the south
of the Claimant's land. That seems inherently improbable; moreover, no such
land was specified. I reject the suggestion.
205. Hempa and Schradan
were constituents of the insecticide Pestox which was commercially available
until the 1980's. It was suggested that the source of the Hempa and Schradan
in the groundwater under the Claimant's fields might have been applications
of Pestox to the crops in those fields before the Claimant occupied them. In
fact, the concentrations of Hempa and Schradan found under the Claimant's land
were vastly greater in the north-west corner of Packhouse Field (boreholes B
1 and MAY 1) when measured in 1995 and 1996 than elsewhere under the Claimant's
land (see appendix 6). That great difference in concentration is not readily
explicable if application of Pestox were the source of Hempa and Schradan, but
is consistent with flow of those chemicals into the north-west corner of the
field from the adjacent land of the Defendant.
206. Mr Makepeace
accepted that the hempa and schradan found in the groundwater under Packhouse
Field came from the Defendant's land:
207. Q. Mr Makepeace, where
is the Schradan and Hempa plainly coming from?
209. It was put to Mr Morrey
that hempa had been found in 1998 in the groundwater in boreholes MAY 5 and
MAY 5B, and that schradan had been found on the same occasion in borehole MAY
5. Mr Morrey cast doubt on that conclusion:
210. Q. Do you see that on
198 Hempa is found at 2.96 micrograms per litre, and on page 199 in 5B, Hempa
is found at 1.58 micrograms per litre?
211. A. Yes, I can see those
values. But my understanding of this is that this is the only sample -- this
is one sample from borehole May 5. There are some questions over, I think, how
it was taken. It was taken by the EA. They do not appear to have any particular
protocol for taking their samples. But what I have not seen is any repeat samples
which showed Schradan and Hempa and certainly when samples were taken earlier,
none of them showed Schradan and Hempa, so there seems to be a single analysis
and somewhat of an anomaly and at really quite low concentrations. We are down
in single figure microgramme per litre concentrations, the significance of which
to crops I have no idea, because that is not my field.
...
212. A. ... May 5 did not
contain Schradan and Hempa. Possible sources for small concentrations in May
5, I am told that there are pesticides which could have been used, but we certainly
did not find them when we looked in 1996. This was a sample, I understand, that
was requested by the plaintiff and has not been repeated since.
213. I do not accept that there
is any reasonable ground for casting particular doubt on the 1998 values.
214. It has not
been suggested that any, let alone all or many, of the organic chemicals other
than Hempa and Schradan were applied to the Claimant's fields. In my judgment,
the overwhelming likelihood is that all the organic chemicals came from the
Defendant's land, and I so find.
215. Mr Charles
Pugh, Counsel for the Claimant, has not contended that the Defendant would be
liable for the escape of any chemicals in groundwater under its land which had
not been put there by the Defendant and were not in its control. His case was
that the chemicals under the Claimant's land had probably come, at any rate
in substantial proportion, by way of leakage from the effluent pipeline. That
pipeline was used not only for waste products and spillage from contemporary
production, but also to dispose of polluting chemicals taken from under the
Defendant's land and thereby taken into the control of the Defendant. It was
not disputed that the Defendant would be liable for the consequences of such
leakage if those consequences were reasonably foreseeable.
216. From common
data of groundwater levels taken at the boreholes, Mr Ashley and Mr Morrey used
computer programmes to estimate the likely positions of contour lines for the
levels of the groundwater at various times. The contours, not unnaturally, vary
from time to time. I accept that those contours are the best that can be produced
from the data. Although they are not claimed to be precisely accurate, they
are sufficiently accurate for present purposes. A mound is shown at the north-west
corner of Packhouse Field in August 1992 such that groundwater would flow in
that locality from the Defendant's land into the Claimant's land. Thus any polluting
chemicals in the groundwater under the Defendant's land at that point would
at that time flow to Packhouse Field. A spillage from the pipeline had occurred
at that very point in February 1991. Thus any chemicals from that spillage that
had entered the groundwater below and remained there would have flowed under
Packhouse Field at that time. Without conceding that the chemicals had come
from the spillage, Mr West accepted that groundwater had flowed from the Defendant's
land on to a limited area of Packhouse Field at its north-west corner.
217. A groundwater
contour for December 1994 produced by Mr Ashley also shows the possibility of
flow of groundwater from the Defendant's land to the Claimant's land at the
same point. Contours for September 1993, March 1995, July 1995 and June 1996
produced by Mr Ashley, and contours for July 1995 and May 1996 produced by Mr
Morrey, show no mound and thus no probability of such flow. I conclude that
groundwater could (and did) from time to time flow from the area under the pipeline
to Packhouse Field. From the evidence of the series of contour maps and of Mr
Ashley and Mr Morrey (especially the former) who spoke to them, I conclude that
such flows are likely to have been short-lived. The contours also show that
although the predominant flow of the groundwater under Packhouse Field was northwards,
the direction of flow under the field fluctuated.
218. I have to consider
the implications of the concentration figures on the question of causation.
Concentrations of chemicals found at different times in the boreholes under
the Claimant's land appear in Appendix 6. I set out in Appendix 8 concentrations
of chemicals found in boreholes under the Defendant's land under the pipeline
and to the west and north-west of Packhouse Field.
219. There is no
evidence of the rates at which chemicals in the groundwater dissipate. Reductions
in concentration over time at any given point in the Claimant's land may be
due to breakdown of the chemical or to its removal from the groundwater either
into the soil or into the plants or by flow of the groundwater. Increases in
concentration of the organic chemicals can, I assume, only be by flow of the
groundwater or by evaporation, since I have rejected the possibility that the
chemicals in question have been applied through the soil of the Claimant's land.
220. The concentrations
of chemicals found in the groundwater in boreholes B1 and MAY 1 in the north-west
corner of Packhouse Field and close to piezometer 58 are in some instances strikingly
high. But each one of those concentrations is less than the concentration, where
known, of the same chemical found in piezometer borehole 58 on the last previous
analysis of the groundwater in that borehole.
221. Most of the
available data from boreholes under the pipeline relate to boreholes 58 (close
to the location of the spillage in February 1991) and 59. For the most part,
the concentrations of organic chemicals found in those boreholes substantially
exceed the concentrations of the same chemicals found in the boreholes under
Packhouse Field. Notable exceptions are tetrachloroethylene and trichloroethylene,
though there is no information about concentrations of those chemicals in borehole
58. Their concentrations shown in boreholes B 1 and MAY 1, under Packhouse Field,
are strikingly high , but substantially less than those shown under borehole
BH16, south of the WWTP. The earliest available data for BH 16 relate to a slightly
later time than those for B 1 and MAY 1.
222. As to the situation
north of the pipeline, figures of concentrations in the groundwater in the field
to the north of Packhouse Field are scarce. Piezometer boreholes 41 and 73 and
boreholes BH 9 and BH 12 are over 100 metres from the northern boundary of Packhouse
Field but are the closest locations in the field in question for which figures
are available. Such figures are set out in Appendix 9. Comparison of those figures
with the figures for piezometers 58 and 59 does not suggest that the field generally
was a more likely source than the limited area under the pipeline, whose concentrations
must have been substantially contributed to by leakage from it. It is true that
concentrations of ethofumesate and MCPA measured at the east end of the field
(piezometer 73 and borehole BH 9) in the summer of 1995 exceeded (in the case
of MCPA, vastly) the concentrations measured under the pipeline at about the
same time. But there is a further consideration. The contours in evidence all
show a rise in the water table from the four boreholes 41, BH 12, 73 and BH
9 towards the pipeline. There are no instances of a reversal or levelling of
the water table in that area in the evidence before me. That consideration renders
it highly unlikely that groundwater passed to Packhouse Field or to the area
under the pipeline from those more remote areas of the field to the north of
Packhouse Field.
223. From the beginning
of 1995, after the pipeline was boxed, it might be expected that the concentrations
of chemicals in the groundwater under the pipeline would diminish over time,
though groundwater movements and possible leakage of any liquid remaining in
the disused pipeline could affect the position. Such expectation is borne out
to some extent. Figures are available for piezometer 59. In March 1995 (the
earliest date in 1995 for which relevant figures are available) and August 1995
concentrations in micrograms per litre of groundwater in that borehole were
respectively, in the case of atrazine, 1530 and 0.33; ethofumesate 5 and 2.3;
simazine 1113 and 13.1; trietazine 11 and 8.3; 2,3,6-TBA 24 and 8.3; phenols
28 and 0.59; and toluene 6 and 5.1. Those pairs are the only such groups of
figures available. In the case of piezometer 58 some pairs of figures are available
for June 1995 and October 1995 which do not show such a consistent trend.
224. There are four
instances where concentrations in MAY 2 on Packhouse Field, fairly close to
piezometer 59, showed higher concentrations of chemicals than those shown at
the latest available date, in all cases earlier, at piezometer 59. At first
sight that might suggest some other source than the leaking pipeline for the
chemicals in question. Those instances involve hempa, schradan, trichloroethylene
and phenols. However, in all such instances except phenols, the concentration
at MAY 2 was vastly less than those at B1 and MAY 1. In the case of phenols,
the concentration at MAY 2 was less than the concentration at MAY 1 and vastly
less than the then most recent (1994) figure for piezometer 58, no figure for
piezometer 58 being available for any of the other three instances. Having considered
all the concentration figures in appendices 9, 8 and 6, I am satisfied that
they are all consistent with the proposition that at least a substantial part
of all the organic chemicals in question found under Packhouse Field came there
via leakage from the pipeline.
225. Boreholes MAY
2 and MAY 3 were monitored up to as late as 1998, and there are instances (MCPA,
2,3,6-TBA, trichloroethylene, phenols) where concentrations increased in 1997
or 1998. In the case of MCPA, 2,3,6-TBA and trichloroethylene, those instances
are consistent with flow from a source in the north-west corner of Packhouse
Field. In the case of phenols, in MAY 3 the concentration was found to be 46.2
in May 1997, the highest concentration shown in the corner of the field was
61.9 in May 1996 (at MAY 1), but another reading taken from the same borehole
at the same time showed 25.41. The figures were agreed but I do not think that
either party was contending that all the figures were infallible, and the discrepancy
suggests a possible error in those figures. However, a reading of 7,600 at piezometer
58 in March 1994 (the latest available figure for that piezometer) suggests
a source near by, also originally fed by the leaking pipeline. Thus there is
nothing in the figures which in my judgment casts significant doubt on their
consistency with the proposition stated above.
226. I have to consider
the possibility that the polluted groundwater under Packhouse Field came from
the area of the Defendant's land which lies south of the WWTP and west of Packhouse
Field. It was Mr Morrey's view that that occurred. I have included the figures
of concentrations of chemicals in the groundwater under the area in question,
viz. boreholes BH16, BH17, BH18 and piezometers 52, 54, 55, 56 and 57 in appendix
8. Mr Morrey expressed the following views as to the source of the hempa and
schradan found in the groundwater in boreholes MAY 1, MAY 2 and MAY 3:
227. Q. ... Do you accept
that the Schradan and Hempa found in May 1, 2 and 3 probably came from the factory
site?
...
228. Can I rephrase the
question, then. The pathway is most probably migrating contaminated water from
AgrEvo land to the groundwater under Packhouse Field?
229. A. Yes. We have definite
evidence that there is contamination within the field south of the WWTP. Groundwater
from that site would flow in a north-easterly direction according to the flow
field that I mentioned earlier, and that would pass under the north-west corner
during those conditions.
230. Q. Do you also accept
that other chemicals found in May 1, 2, and 3, that are hormone herbicides or
industrial solvents, have probably come by the same route from AgrEvo land?
231. A. To the extent that
they could not have been derived from application on the overlying land, then
that would certainly be something which would seem likely. But if the chemicals
found were in fact ones that could have arrived on the site by use on Packhouse
Field, then that would be an alternative source for any such chemicals found
in Packhouse Field.
232. Q. Having accepted all
that you have accepted for Schradan and Hempa in boreholes 1, 2 and 3, what
is your explanation for their presence in borehole 5 and 5B, other than they
came by the same process?
233. A. I can only repeat
that when May 5 was sampled, analysed previously, in 1996, the level of contaminants
found was very different to that on this one occasion, following a request from
the plaintiff to sample that borehole, and that it has not been sampled -- it
was not sampled, except in 1996, before or since.
235. In the further course of
his cross-examination he said (and I accept) that there had been spillages in
the area of BH16 and perhaps spilling over a little bit further to the south;
also there would be the effect of trials. He thought it was probable that it
was the area around boreholes BH17 and BH18 from which the groundwater contamination
had moved to contaminate the groundwater under MAY 1, MAY 2 and MAY 3, and that
it was unlikely that it came from the area of BH16. Mr Morrey was firm in his
view that the flow that accounted for the chemicals found in the groundwater
under boreholes, MAY 1, MAY 2 and MAY 3 was north-easterly. If so, flow from
the area of BH17 would not impinge on the Claimant's land. Mr Morrey said that
the area around piezometer 57 could not be a source.
236. I accept that
the area around BH18 could well be a contributory source of the organic chemicals
found in boreholes MAY 1, MAY 2 and MAY 3. But the high concentrations of the
chemicals found in BH18 may well have been contributed to by leakage from the
pipeline; and the groundwater contours show that the same could apply to BH17.
237. There is little
evidence of the concentrations of chemicals in the groundwater under the south
part of Packhouse Field. The only relevant borehole is MAY 4. Analyses were
carried out in May and June 1996. Of numerous organic chemicals tested for,
the only organic chemical found was 2,3,6-TBA, at a low concentration.
238. My conclusion
is this. The available figures of concentrations of organic chemicals in the
groundwater are consistent with, and in my judgment suggest, flow of groundwater
containing those chemicals from under the pipeline, especially near the north-west
corner of Packhouse Field, into Packhouse Field. Such flow may have been added
to by flow from the area west and north-west of Packhouse Field, but there was
no significant contribution from parts of the Defendants' land lying north of
the pipeline. I find that the principal source of the organic chemicals found
under Packhouse Field was leakage from the Defendant's effluent pipeline.
Source of Chloride
239. Chlorides can
occur naturally in groundwater where there are chlorides in the overlying strata.
The only evidence of the natural occurrence of chloride in the groundwater in
the locality of, but outside, the Claimant's and the Defendant's land is that
of Mr David Eagle. Mr Eagle is a soil scientist. He has degrees in chemistry
and in agriculture. He was employed by the Ministry of Agriculture, Fisheries
and Food for 22 years up to 1981, latterly as National Specialist in Pesticide
Residues. He gave expert evidence on behalf of the Claimant. Mr Eagle quoted
the figure of 22,000 micrograms per litre reported by the Cambridge Water Company
as the amount present in the borehole for the Cambridge area. Chloride in the
form of manganese chloride is used in the Defendant's prochloraz process. The
figures set out in appendices 8 and 9 of concentrations in the groundwater under
the Defendant's land, even ignoring the very high figures shown for BH16, which
is near the WWTP, are generally many times that level. A figure of 6.1 million
micrograms per litre at piezometer 58, at the turn of the pipeline, in October
1992 clearly results from leakage of the pipe. The concentrations under Packhouse
Field (see appendix 6) are also, with the exception of MAY 2B, well above 22,000
micrograms per litre. The analysis of the effluent from the burst pipe sampled
in January 1996 shows 80,000 micrograms per litre. I am satisfied on a balance
of probabilities that the majority of the chloride in the groundwater under
Packhouse Field came via leakage from the effluent pipeline. No figures are
available for area C.
Source of Manganese
240. Manganese was
found not only in the groundwater but also in the soil of the Claimant's and
the Defendant's land. The Defendant contends that any manganese in the plants
in Packhouse Field or in area C can be accounted for by the manganese in the
soil of the field, and is not to be attributed to groundwater emanating from
the Defendant's land. The Claimant contends that that manganese came from the
Defendant's land via leakage from the effluent pipeline. A number of questions
arise: 1. Did the plants take up the manganese from the soil? 2. Did the plants
take up the manganese direct from the groundwater? 3. Did manganese in the groundwater
come from the Defendant's land? 4. Did manganese in the groundwater come from
the Claimant's soil? 5. Did the manganese in the Claimant's soil come from the
groundwater?
241. Concentrations
of manganese in the groundwater under the Claimant's land appear in appendix
6. The figures for borehole MAY 1 are substantially higher than the others.
But all of them (except for a reading for borehole B4) are substantially over
the top of a range quoted by Dr. Ward (to whose work I refer in more detail
below) from the literature as the normal range.
242. The soil of
Packhouse Field contained significant quantities of manganese. Concentrations
of manganese in the soil of Packhouse Field are set out at appendix 10.
243. It was not
part of the Claimant's case that the manganese in the strawberry plants had
come from the Defendant's land otherwise than by way of flow of groundwater.
In particular, it was not part of the Claimant's case that the manganese in
the Claimant's soil had come airborne from the Defendant's premises. That question
was raised by Dr. Ridge; Dr. Garner gave evidence in rebuttal. In his witness
statement he wrote:
244. In the past, (but not since
1991) we have manufactured prochloraz manganese complex at Hauxton. ... This
process does not release atmospheric emissions of manganese, and aqueous process
wastes containing manganese were segregated for off-site disposal and not discharged
to the site effluent. The likelihood of manganese being deposited on the ground
from any aerial emission or effluent spillage near to the Packhouse Field is
in my view extremely low.
245. I am satisfied that the
concentrations of manganese in the soil of the Claimant's land are not to be
explained by reference to airborne deposition from the Defendant's land. As
to effluent spillage, I have to consider some figures of concentrations of manganese
in the groundwater under the Defendant's land of which Dr. Garner was unaware.
Moreover, Dr. Garner's witness statement does not deal with the question of
spillages from processes involving manganese. Dr. Garner wrote in a memorandum
of May 1994:
246. It was apparent that some
plant personnel still consider that, since the WWTP receives all site wastewater,
surface water drains are acceptable routes for disposal of effluents. ... It
is therefore important to ensure that surface waters systems are not used for
processing effluent disposal. Appropriate plant modifications and alterations
to plant procedures should be implemented to achieve this.
248. A. I know from my technical
knowledge, plant drains such as the AHP and Pz that we have talked about, were
weaknesses, because they could contain something more than a floor washing and
they could be pumped to the underground tank and it is these kind of "process",
in inverted commas, because they are not process wastes all the time, could
contaminate the surface water system and make treatment of that more protracted,
not impossible, just more protracted.
249. Pz refers to the prochloraz
plant. It is clear that manganese was capable in 1994 of finding its way into
the effluent pipeline. I add parenthetically that in the analysis of the sample
of effluent from the burst pipeline taken on 2nd January 1996 manganese was
not looked for.
250. Apart from
Dr. Ward's measurements made in January 1995, all measurements of the concentrations
of manganese in the groundwater under the Claimant's land were made in May and
July 1995 and May 1996. They appear in appendix 6. All measurements of the concentrations
of manganese in the groundwater under the Defendant's land were made later,
in June and July 1997. A selection of the last-mentioned figures appears in
appendix 11. The boreholes selected are those around Packhouse Field and, in
particular, along the line of the effluent pipe. In descending order of concentration
of manganese, seven of the first 9 of the 17 boreholes on the Defendant's land
and listed in appendix 11 were close to the pipeline; 6 out of the last 8 were
not close to the pipeline. Of those close to the pipeline, the highest readings
were bunched in two places: boreholes 80 and 97 to the east of Packhouse Field
close to the western side of the A10 road; and boreholes 102 and 103 towards
the western end of Packhouse Field. The totality of the figures in appendix
11 strongly suggests leakage of manganese from the pipeline.
251. By far the
highest concentrations of manganese in the groundwater under the Claimant's
land were found in borehole MAY 1. The nearest boreholes on the Defendant's
land were 58 and BH18. In neither of those boreholes was the concentration of
manganese determined. The nearest borehole where it was determined is 103. The
concentration there was 530 micrograms per litre in 1997, roughly half the concentration
in MAY 1 in 1996.
252. The great disparity
between the concentration at MAY 1 and the concentrations elsewhere under the
Claimant's land cannot be explained by reference to the manganese in the soil.
The inference is clear: the concentrations of manganese found in the groundwater
in borehole MAY 1 are likely to be largely due to leakage from the pipeline.
The concentrations of manganese found in the groundwater under the rest of the
Claimant's land may have been contributed to by leakage from the pipeline, but
the figures are not such as to give rise on their own to any strong inference
to that effect, given the possibility of another source in the soil of the Claimant's
land. I turn to consider that possibility.
253. There is little
evidence on the capability of manganese-bearing soil to pass the manganese into
the groundwater beneath. Mr Eagle was questioned on the subject by Mr West:
254. Q. I want to deal just
very briefly with the presence of manganese in the groundwater under Packhouse
Field.
A. Yes.
255. Q. If it is right that
the levels of manganese in the soil on Packhouse Field is at an unusually high
levels, comparing the soils on AgrEvo lands, and comparing the soils on lands
to the south-west of Packhouse Field, why does one have to look any further
than that high level of manganese in the soil for an explanation for the high
level of manganese in the borehole water?
256. A. As I have already
told you, a soil analysis for manganese does not tell you how much a plant can
take up from it; it is of no use at all.
257. Q. That may be right,
but one has a field with a high level of manganese in the soil, upon which rain
has been falling, going down into the levels beneath the soil?
259. Q. What I am asking
you is this: you have said on a number of occasions during the course of your
evidence that the probable source of the high levels of manganese in the water
under Packhouse Field is AgrEvo?
A. Yes.
260. Q. What I am asking
you to consider is why, if one has unusually high levels of manganese in Packhouse
Field soil, why does one have to look any further than that for an explanation
as to how the high levels of manganese get into the water underneath Packhouse
Field?
261. A. Natural manganese
is of very low solubility, which explains why the average figure as reported
by Dr. Ward is so low.
262. Q. How is that an answer
to the question: why, if one has high levels of manganese in the water underneath
the field and a high level of manganese in the field itself, why does one say
the probable cause is coming from somewhere else?
263. A. Because of the chemistry
of the soil. It just does not leach that way; manganese is held quite tightly
by the soil.
264. The expression natural
manganese had been used by Mr Eagle earlier in his evidence:
265. Q. If Professor Lieten
is right that the optimum level of manganese in water is between 825 and 1,100
micrograms per litre, it goes without saying that these figures are substantially
lower than that as well?
266. A. Yes. His recommendation
refers to divalent manganese, natural manganese, but we do not know that these
are natural, these are in a natural form.
267. In re-examination, he was
asked to elaborate on the point:
268. Q. I wonder if you could
just elaborate a bit on what you mean by divalent manganese, its natural form,
or alternatively a chemical contaminant form of manganese?
269. A. Well, in the divalent
form, the manganese is in the form of a positive ion, for example manganese
chloride, the manganese is positive, the chloride is negative. In another common
manganese compound, permanganate, for example, manganese is in a heptavalent
form, combined with oxygen in the permanganate ion and is totally different
chemically.
270. The foregoing evidence
of Mr Eagle has to be read in its context. In his supplemental report Mr Eagle
said this:
271. Although the soil in Packhouse
Field is strongly alkaline and crops grown in such a soil would normally be
low in manganese, and could be deficient, the analyses by Dr Ward showed that
strawberry plants were high in manganese particularly in affected plants and
in a dead plant at 692µg/g was well above the accepted toxic limit of 500µg/g.
These results prove an adverse effect of manganese either as a primary toxin
or in synergism with the other contaminants.
272. The occurrence of a toxic
plant level of manganese and generally high plant levels on an alkaline soil
is totally extraordinary and a similar case has never been encountered in 30
years of advisory work. Many thousands of acres of crops grown on alkaline soils
in UK are sprayed every year with manganese sulphate to correct deficiencies.
Manganese toxicity is a recognised problem only in crops grown on very acid
soils. The only likely explanation for the occurrence in Packhouse Field is
contamination. The highest levels of manganese detected in groundwater were
in samples from the MAY 1 borehole (reference 4) which also had some of the
highest levels of 2,3,6-TBA, hempa, schradan and trichloroethylene obviously
originating from the AgrEvo site a few yards away. This fact points to the AgrEvo
site as the only credible source of the excessive level of manganese. I had
not appreciated the strength of this evidence when I wrote my original report.
274. A. There was manganese
toxicity in the plants growing in the field, and a high level of manganese in
the contaminated borehole.
275. Q. Is it not right that
the actual tests carried out, particularly by Dr Duncan, of actually growing
Fraises de Bois, in a solution containing the highest level of manganese, which
produced no signs of damage, is a highly significant result for the purposes
of this litigation, in relation to the issue of manganese toxicity, is it not?
276. A. He was dealing with
divalent manganese, which we know is the natural form. But we do not know that
that was the form of manganese in the contaminated borehole, which was the point
of my argument.
277. And then with reference
to the concentrations of manganese in the boreholes on the Claimant's land other
than MAY 1 he gave the following answer:
278. Q. Even assuming that
all of these levels are of a form that would be available to plants, apart from
those two MAY 1 findings, they are below any conceivable level of toxicity;
is that not right?
279. A. No, it is not right;
a different form of manganese could be much more toxic.
281. Q. Now, the next thing
I would like to ask you about, please, is the questions about manganese. You
were asked a number of questions about the manganese levels and on a number
of occasions you gave the answer that:
"We do not know what form of manganese, its natural form is a divalent manganese", you do not believe that the manganese was in its natural form but another form?
A. Yes.
...
283. A. The toxicity of it
would be quite different to that of the divalent manganese. I mentioned yesterday
that analogous difference between chromium and chromate, the chromate is much
more toxic than the trivalent chromium.
284. JUDGE HAVERY: Does manganese
dioxide come into this anywhere?
285. A. It is insoluble so
it could well be in the soil but not in solution.
287. A. No, it would not
be soluble enough to be toxic normally unless the soil is very acid, which is
a point I drew attention to. We normally only see manganese toxicity in acid
soils and this is a very alkaline soil.
288. As I understand
Mr Eagle's evidence, the effect of it is that the soil contained divalent manganese
which is not normally toxic because it has a low solubility except in acidic
solution, but the groundwater, contaminated from the Defendant's land, contained
heptavalent manganese which is more highly soluble and is toxic to plants. It
was the heptavalent manganese that reached the plants.
289. The manufacture
of the prochloraz complex involves manganese chloride. The manganese in manganese
chloride is divalent. In consequence I would expect, though there is no direct
evidence on the point, that any manganese in the groundwater emanating from
the Defendant's land was divalent.
290. There is no
evidence before me of the solubility either of divalent or of heptavalent manganese.
In fact, I do not doubt that their solubilities depend upon the identities of
the compounds containing them and possibly upon the presence of other solutes.
It has not been suggested that the comparatively high (but still minuscule)
concentrations of manganese found in borehole MAY 1 exceeded the solubility
of divalent manganese.
291. As to the leaching,
it is not clear from Mr Eagle's evidence whether his view was that the manganese
does not leach down from the soil into the groundwater because of its low solubility,
so that rainwater would carry little manganese with it into the groundwater,
or that the chemistry of the soil prevents or limits such leaching. I do not
think he could have meant the latter, since his statement "manganese is held
quite tightly by the soil" appears to be a general statement, made without regard
to the chemistry of the particular soil. On the former interpretation of Mr
Eagle's view, if the concentrations of manganese in the groundwater did not
exceed the solubility of divalent manganese, I can see no reason why it, or
some of it, should not have leached into the groundwater from the soil above
it in Packhouse Field.
292. In 1996 analyses
were made of soil samples taken from the vicinities of boreholes MAY 1, MAY
2, MAY 3, MAY 4 and MAY 5. Apart from manganese, scarcely any of the relevant
chemicals were found. It was put to Mr Ashley in cross-examination that that
showed that the chemicals did not rise from the groundwater to the rooting area:
293. Q. If that were in fact
a mechanism to account for the damage seen in plants on Packhouse Field, one
would expect that analysis of soil at levels below rooting level would turn
up evidence of the same chemicals?
294. A. Not necessarily;
it would depend on what time of year it was, and how the recent hydrogeological
history of that soils had been: whether it was a period at which there was movement
of capillary water up through from the water-table, or whether it was a time
when it was fresh rainwater infiltrating down.
295. Q. If it were the fact
that a sample was taken during the course of a period of time during which your
mechanism was at work, that is that groundwater was somehow getting up into
the rooted level, one would expect a sample of the soil taken at those levels
to produce evidence of the chemicals carried in the groundwater?
297. I accept that evidence.
It clearly covers the case that manganese in the groundwater can rise into the
soil. The evidence as to the soil samples I regard as valueless in so far as
it relates to the acid herbicides, since the laboratory that carried out the
analysis considered that the results were inconclusive. They wrote a letter
to the Environment Agency dated 28th August 1996 which included this paragraph:
... examination of the sample results is inconclusive. The fact that we have not measured the presence of any acid herbicides above our detection limit, may be interpreted as either their absence at such concentrations, or a failure of the methodology used to extract any acid herbicides from the sample matrix for measurement.
298. There is no
evidence before me as to the concentration of a chemical that might be expected
to be found in the soil as a proportion of that in the groundwater, given the
groundwater as a source.
299. There is nothing
in the spatial distribution of the concentrations of manganese in the soil of
Packhouse Field to suggest that the source is the Defendant's land in general
or the pipeline in particular. On the available figures (see appendix 10) the
figures are fairly uniform, though they are higher on the parts of area B selected
by Dr. Ward.
300. Measurements
of the concentrations of manganese in the surface soil of the Defendant's land
(to a maximum depth of 5 cms) were taken on the initiative of Dr. Garner in
July 1996. The map at appendix 12 shows the locations of the sampling points
in the vicinity of Packhouse Field (I have ignored some others) and, at each
such point, the concentration of manganese in micrograms per gram. The soil
at one point on the headland of a neighbouring field about 100 metres west of
the south-west corner of Packhouse Field was also sampled; the location and
result also appear at appendix 12. In addition, three samples were taken from
Dr. Garner's garden and the gardens of two of his colleagues, all located between
five and fifteen miles from the Hauxton site; the concentrations of manganese
found there also appear in appendix 12. The concentrations at the sampling points
on the Defendant's land and shown in appendix 12 range from 384 to 456 micrograms
per gram, and average 424 micrograms per gram. The only sampling point beneath
the effluent pipeline was at about the mid-point of the boundary of Packhouse
Field and adjacent to area B somewhat to the east of piezometer borehole 102.
It showed a concentration of 402 micrograms per gram. The concentrations at
the points between 5 and 15 miles from Hauxton range between 347 and 523 micrograms
per gram, and average 435 micrograms per gram. Those concentrations are to be
compared with approximately contemporaneous concentrations on Packhouse Field
and the neighbouring headland ranging between 612 and 713 micrograms per gram
and averaging 646 micrograms per gram (see appendix 10, figures for May 1996
and appendix 12). Thus, the concentrations of manganese in the soil tend to
be higher on Packhouse Field than elsewhere in the neighbourhood, including
the Defendant's land. It has not been suggested, nor does it seem remotely likely,
that flow of groundwater from the Defendant's land to Packhouse Field could
give rise to a uniformly higher concentration of manganese in the soil above
it than apparently existed at its point of departure. I reach that conclusion
notwithstanding that there may have been local undetected points of high concentration
in the soil under the pipeline.
301. My conclusions
on these points are as follows. Those plants that took up manganese did so from
moisture in the soil or at the top of the bedrock. That moisture contained manganese
dissolved from the soil in rainwater or, in drier conditions, was itself groundwater
containing manganese. Some, though it is not possible to say what proportion,
of the manganese in the groundwater came from the Defendant's land; of that
proportion, the bulk came via leakage of the effluent pipeline. Some of the
manganese in the groundwater came from the Claimant's soil. Some of the manganese
in the Claimant's soil came from the groundwater.
302. I am not satisfied
that a significant proportion of the manganese in the groundwater under Packhouse
Field or area C, save for the north-west corner of Packhouse Field, came from
the Defendant's land. Most of the manganese in the groundwater under the north-west
corner of Packhouse Field came via leakage of the Defendant's effluent pipeline.
I cannot say what proportion of the manganese that found its way into the Claimant's
plants came from the groundwater; I am not satisfied that that proportion was
significant.
Synergy
303. The view initially
expressed by Mr Eagle was that the damage to the crops was caused simply by
the chemicals. He visited Packhouse Field on 20th May 1997. In his initial report,
he described extreme patchiness in weed growth, leaf curling in some species
and hormone weedkiller symptoms in nettles and alder in the hedge adjoining
the Defendant's land and within the field towards the western boundary in nettles
and blackberry. The remnants of the strawberry and raspberry crops were stunted
and pale. There was very little spawn growth in the blackberries. The northern
part of a willow wind break, nearest to the Defendant's boundary and planted
at right angles to the boundary hedge, had died. The remaining willows had yellow
leaves and were poorly grown on the northern end. He referred to the study of
the field carried out in January 1995 by Dr. Neil Ward that I have mentioned
above. Mr Eagle concluded that the soil analyses revealed nothing of importance
except that manganese was rather high in all samples. The plant sample analyses
again revealed nothing of interest except that all manganese levels were high.
That was surprising for plants growing in an alkaline soil, on which manganese
levels are normally relatively low. Manganese deficiency is a common disorder
on alkaline soils while its toxicity normally only occurs on strongly acid soils.
304. Mr Eagle referred
to groundwater samples obtained by the National Rivers Authority from 3 boreholes
in Packhouse Field on 22nd August 1995 (see appendix 6). The boreholes in question
were B1, B4 and B5, the last mentioned being in fact in area C. Expressing results
in micrograms per litre, he wrote:
305. Amounts detected of simazine
(0.12), atrazine (0.07), trietazine (0.1) and ethofumesate (0.14) are extremely
small and of no hazard to crops; they have not been used in Packhouse Field.
Amounts detected of dicamba (5.0), 2,3,6-TBA (398.0), MCPA (25.4) and 2,4-D
(1.3) are of more significance. These are hormone type herbicides used on cereal
crops and never applied to fruit or vegetable crops. Levels of around 5µg/1
and above would be damaging if applied to tomato which is the most sensitive
crop. Fruit crops are not as sensitive but some would be affected if they came
in contact with the level of 2,3,6-TBA found. ... Also detected were 23 organic
solvents and industrial chemicals. These were mostly in very small amounts,
less than 14µg/1, but 1-2-dichloroethylene c (86), 1,2-dichloroethylene t (272),
chloroform (220) and trichloroethylene (10,000) were present in significant
quantity. Also detected in significant amounts were the organophosphate insecticide
schradan (3,290) and organophosphate formulant hempa (9,100). Schradan has not
been used for many years; it was sold in the UK as the active ingredient of
Pestox 3 by Fisons Ltd, a previous owner of the AgrEvo Factory. Hempa was never
used as a pesticide so it could only have come from a factory or other establishment
handling it. The concentrations of schradan and hempa are well below what could
be expected to be harmful to plants. However, it is well known that mixtures
of chemicals are usually more damaging to plants than individual chemicals.
Small amounts of chemical can have a synergistic (enhancing) effect on the toxicity
of others.
306. Mr Eagle went
on to refer to groundwater samples obtained by Aspinwall & Co and the Environment
Agency on a series of dates beginning in May 1996 from 8 boreholes in Packhouse
Field (MAY 1, MAY 2, MAY 2B, MAY 3, MAY 3B, MAY 4, MAY 5 and MAY 5B) (see again
appendix 6). He wrote:
307. The herbicides benazolin,
dicamba, MCPA, atrazine and 2,3,6-TBA were detected in at least one sample.
The amounts of the first four were very small but the 68µg/1 of 2,3,6-TBA was
sufficient to injure some crops. Also detected were a trace of pentachlorophenol,
a chemical which has both pesticidal and industrial uses, 29µg/1 chloroform,
224µg/1 tetrachloroethylene and 6952µg/1 trichloroethylene. The latter three
are solvents used in industrial chemistry. ... Since publication of the report
analyses on samples obtained in November 1998 from boreholes May 5 and May 5B
have been reported. Further herbicides were detected - trietazine (23.3µg/litre),
ethofumesate (16.1µg/litre), terbutryne (0.429µg/litre) and simazine (8.68µg/litre).
308. Mr Eagle also
referred to high levels of chloride in the groundwater. I consider those in
more detail below.
309. Mr Eagle considered
the question of access of the roots of the plants to the groundwater. He wrote:
310. The groundwater samples
found to be contaminated were obtained from depths of 1-2 metres which are greater
than the depth of penetration of most crop roots. So it has to be considered
whether crops could be damaged by contaminants at such depths. ...
311. While most crop roots grow
within the top 30cm or so, some go much deeper and it is well known that some
roots penetrate to more than a metre. In dry weather it is very likely that
the deeper roots would reach the vicinity of the groundwater in search of moisture.
...
312. Work by J.H. Lowe at the
Scottish Crop Research Institute has detected raspberry roots at a depth of
1.12 metres. Upward movement of groundwater also occurs. Upward movement over
a period of 30 days of 0.88 metre in a loam soil was reported in "The Nature
and Properties of Soils", page 181 published by Macmillan. The soil in Packhouse
Field is of a similar type. The above facts leave no reason to doubt that crop
roots could reach groundwater in Packhouse Field especially in the second or
subsequent year of the crop. It is noteworthy that the severe strawberry damage
occurred in the second year of cropping when roots would have penetrated to
a greater depth than in the first year.
314. When damage to a crop is
caused by a single pesticide diagnosis is usually straightforward. The damage
symptoms usually indicate the type of pesticide causing the injury and knowledge
of what pesticides have been applied leads to a diagnosis. Analysis of damaged
and undamaged plants is often helpful. If the content of a pesticide is much
higher in the damaged plants than in the undamaged the diagnosis is confirmed.
If the damage was as a result of injury to the roots, however, uptake of the
contaminant or contaminants would not be excessive so analysis would not be
helpful. In the case of Mr Elliott's strawberry crop which failed in 1994 the
symptoms were not specific to a particular pesticide. Although hormone weedkiller
symptoms occurred in artichokes and blackberries the symptoms in the strawberries
were not straightforward hormone weedkiller injury. The symptoms in 1995 were
in Dr. Ridge's opinion consistent with drought and she ... attributed them to
chemical damage via the soil. Subsequently analyses of groundwater from Packhouse
Field have detected 2,3,6-TBA in amounts highly damaging to some crops and a
range of other chemicals particularly chloride. ... The chloride content in
eight of the twelve borehole water samples from Packhouse Field was high enough
to damage strawberry plants and the symptoms recorded are wholly consistent
with chloride injury although this injury was very likely accentuated by the
presence of the other chemicals. The adverse effects of excessive chloride are
due more to interference with the plant's uptake of water rather than a toxicity
so plant analysis for chloride would not be helpful.
316. The damage symptoms in
the failed strawberry and raspberry crops were typical of chloride injury, probably
accentuated by the presence of other contaminants, consistent with uptake of
contaminated groundwater.
317. Crop roots can penetrate
to depths of more than a metre and upward movement of groundwater of nearly
a metre can occur so strawberry roots could have reached contaminated groundwater.
...
318. The factory site is the
only possible source of the contaminants in Packhouse Field groundwater. As
contamination has clearly occurred at some time or times, it must be likely
that a contamination incident occurred in the thirteen year period between 1981,
the Defendant's date of occupation, and 1994 when the strawberry crop was severely
damaged.
Dr. Duncan's Test
319. Dr. James M
Duncan is a plant pathologist who gave expert evidence before me on behalf of
the Defendants. He is head of the Department of Fungal and Bacterial Plant Pathology
at the Scottish Crop Research Institute, Dundee and has many publications to
his credit, mostly on phytophthora diseases of soft fruit.
320. Dr. Duncan
carried out an experiment to determine the effect on alpine strawberry plants
of the chemicals found in the water in borehole MAY 1 in May 1996. That water
had been analysed and found to contain dissolved chemicals as follows (see appendix
6; for ammonium, see appendix 14). It contained the organic compounds 2,3,6
trichlorobenzoic acid (TBA), benazolin, ethofumesate, dicamba, MCPA, atrazine,
schradan, hempa, pentachlorophenol, phenol, chloroform, trichloroethylene and
tetrachloroethylene. And it contained the inorganic salts manganese sulphate,
potassium chloride and ammonium sulphate.
321. The way in
which the experiment was carried out was this. Selected plants were divided
into four groups. One group, the control group, was watered with de-ionised
(i.e. pure) water only. Another was watered with a solution in de-ionised water
of the inorganic salts in the same concentrations as found in the borehole.
A third group was watered with a solution in de-ionised water of the organic
compounds in the same concentrations as found in the borehole. A fourth group
was watered with a solution in de-ionised water of all the chemicals mentioned
above as having been found in the borehole water, in the same concentrations
as found in that water. Dr Duncan found that only one of the groups, the third
group, showed any apparent effect in comparison with the control group. He concluded
that the growth of the plants in the third group had been adversely affected
to an extent that was just significant at the 5 per cent level. That means that
if the chemicals had no effect on the plants the a priori probability
that such a result would have been obtained was slightly less than 5 per cent.
322. In more detail,
what Dr. Duncan did was this. He selected 24 alpine strawberry plants, Fragaria
semperflorens, var. alpina ("Alexandria"), aged about four months,
which he found to be healthy, having been checked for symptoms of disease before
use. The plants were grown in pots using a soil-less compost of peat and sand.
Each plant was watered from above with 100 millilitres of the appropriate solution
twice a week. That saturated the pot, with something between 0 and 5 ml. of
water run-off.
323. The test groups
were selected in this way. Dr. Duncan started with a few plants more than twenty-four.
He divided twenty-four of the plants into six initial groups of four, in order
of size as estimated by eye. To do that, he first selected by eye the four biggest
plants, and assigned them to one initial group; he then continued in order of
size until twenty-four plants had been divided into the six groups. One of the
four plants in each of the six groups was assigned at random to each of the
four treatment groups. The intention was that the populations of each of the
four treatment groups should be so far as possible the same as regards the sizes
of the plants.
324. At the end
of the experiment, which lasted for eight weeks, the plants were removed from
their pots. Their roots were washed free of compost and then cut off. The fresh
weights of the roots and of the upper parts of the plants were recorded. The
results are set out in appendix 13 to this judgment.
325. Dr. Duncan
made the point that the experiment was a tough one. As the pots dried out, the
concentrations of the chemicals in the water would increase. That, he said,
would not happen in the field. The plants in the experiment were exposed only
to the chemical solution and to no other source of water as would have been
experienced in Packhouse Field, where plants were irrigated and would have received
rain water. Moreover, he considered that the roots of the plants in the field
would be very unlikely ever to reach down to the contaminated groundwater. He
concluded that the concentrations of chemicals detected in the groundwater in
borehole MAY 1 were not responsible for the observed symptoms on the alpine
strawberry plants in Packhouse Field.
326. A number of
points have been taken in relation to Dr. Duncan's tests. Dr. Duncan is a plant
pathologist, not a chemist or toxicologist. It was the expertise of the chemist
or toxicologist which was needed for those tests. It is true that Dr. Duncan
was mistaken as to the meaning of 2,3,6-TBA and confused it in his mind (though
not in fact) with another chemical. That error had no effect on his results.
It also seems to me that an error has been made in calculating the concentration
of ammonium sulphate required in the solutions containing inorganic salts. A
molecular weight of 134, rather than the correct figure of 132, appears to have
been taken for ammonium sulphate; moreover, Dr. Duncan read the figure of 2.88
milligrams per litre as the concentration of the ammonium ion in the borehole
water when it seems from the relevant analytical report that that figure represented
the concentration of nitrogen, albeit in the form of ammonia. If indeed Dr.
Duncan was in error in those respects, the concentration of ammonium sulphate
in his experiment would have been lower than he should have intended by 21 per
cent. Neither of those points was taken, and I make no finding in respect of
them; in any case, I am satisfied that the errors, if such they be, are immaterial.
I find that Dr. Duncan carried out his tests competently and carefully, subject
to the possible immaterial errors, within the parameters he devised.
327. Another criticism
was that the variety Alexandria that Dr. Duncan used was not the variety grown
by Mr Elliott. I reject that criticism in the absence of evidence on the point.
328. A possibly
more serious criticism is that the initial weights of the plants and their roots
were not known. It is not suggested that there was any way of finding out without
ruining the plants and the experiment; but doubt was cast on the result on that
account. Dr. Duncan claimed no expertise in statistics and relied on others
for his statistical conclusion. There was an apparent discrepancy in the totals
which Dr. Duncan was asked, and undertook, to explain after consultation with
the person who prepared them, but no explanation was forthcoming; and it was
not clear how, if at all, in calculating the probability, the absence of information
about the weights of the plants before the start of the test was dealt with.
329. In stating
that the effect of the treatment of the third group of plants on their growth
was just significant Dr. Duncan said "in other words, the effect was not pronounced".
It seems that Dr. Duncan thereby confused two distinct, though inter-related,
questions. The first is whether the difference in growth of the third group
of plants was caused by the difference in their treatment; the second is whether,
if so, that effect was pronounced. In my judgment, the difference in the outcomes
was quite pronounced, as the figures show. After the test, the average weight
of the plants in the third group was thirty per cent less than the lowest average
weight for the other three groups, whose averages were all within two per cent
of the median of those three. The average weight of the roots in the third group
was fifty per cent less than the lowest average weight for the other three groups,
whose averages were all within five per cent of the median of those three. For
the third group, the percentage of the average plant weight represented by the
average root weight was twenty-seven per cent (nine percentage points) below
the lowest such percentage for the other three groups, whose percentages were
all within four per cent (1.14 percentage points) of the median of those three.
It is no doubt true that the greater the difference in the outcome of the test
for the third group from the outcomes for the other groups the less the a priori
probability, in the absence of causation, that that would occur, but in my judgment
it is not correct to say that the effect (if such it was) was not pronounced
simply because that a priori probability was not much below five per cent.
330. I regard the
results of Dr. Duncan's test as quite strong evidence that the bundle of organic
chemicals found in the groundwater in borehole MAY 1 in May 1996 was, if taken
up in the same concentrations by the alpine strawberries grown by Mr Elliott,
capable of having a seriously damaging effect on their growth, particularly
the growth of their roots. Dr. Duncan pointed out, and I accept, that none of
the symptoms of crown rot or root rot found on Mr Elliott's alpine strawberries
were exhibited by the plants subjected to Dr. Duncan's tests. He said in his
report:
331. There were no symptoms
of any root or crown rotting, leaf curling or chlorosis. Some colouration of
the leaves was evident in all of the treatments at the end of the experiment,
mainly reddening. This was undoubtedly due to the plants suffering from a lack
of nutrition as was evident in all treatments. No fertilisers were applied during
the test as this could have confounded the design of the experiment and the
interpretation of its results.
332. As to the result
of the test on Dr. Duncan's fourth group, where the application of the whole
range of chemicals, organic and inorganic, appeared to have no effect, Dr. Duncan
considered it possible that the nitrogen from the ammonium ion could have stimulated
the growth of the plants, thereby counteracting the potentially damaging effects
of the chloride and the manganese. Just as effects could be mutually reinforcing,
as in synergy, so they could be mutually antagonistic. That point may tend to
counter the view that the damage in the field was caused by the mixture of chemicals,
unless the concentration of the ammonium ion in the groundwater from borehole
MAY 1 tested in May 1996 was atypically high relative to the concentrations
of the other salts. That indeed may well be so. At the time when the groundwater
in borehole MAY 1 was analysed in May 1996, the groundwater in the other MAY
boreholes was also analysed. The figures are set out in appendix 14 and can
be seen to be consistent with the proposition. At a minimum detection level
of 50 micrograms per litre, nitrogen from the ammonium ion was not detected
in the samples from any of the other boreholes.
333. Ammonium was
tested for in 26 other analyses of groundwater from boreholes in Mr Elliott's
fields. It was detected (the minimum detection level being 30 micrograms per
litre) in only five of those analyses. The figures appear in appendix 15. In
only two of those five analyses was chloride tested for, and in only one of
them was manganese tested for. In that analysis, the manganese and the chloride
were substantially more concentrated in comparison with nitrogen from ammonium
than they were in Dr. Duncan's test. Only in the remaining instance, borehole
B, was the chloride/ammonia ratio comparable with that used in Dr. Duncan's
test.
University of Hertfordshire Test
334. The University
of Hertfordshire carried out tests of the effect of the groundwater in boreholes
MAY 2, MAY 3 and MAY 5 sampled in May 1996. Analyses of other portions of that
groundwater sampled on the same occasion appear in appendix 16. The tests were
carried out on tomatoes, which on the evidence of Mr Eagle, which I accept,
are very sensitive to hormone weedkillers but rather insensitive to chloride.
The control plants were watered with distilled water. The other plants were
divided into groups. The members of each group were watered with water from
one of the boreholes, either in its original state or concentrated tenfold.
Those tests showed a diminution in average growth of the tomatoes, compared
with the control, when watered with water from each of those boreholes. The
diminution was not statistically significant at an unstated level (which may
have been 5 per cent.) in the cases of original water from borehole MAY 2 and
of concentrated water from borehole MAY3. It was statistically significant,
apparently to a high degree ranging between the 0.4 per cent level to a level
at less than 0.05 per cent., in the case of tenfold concentrated water from
MAY 2 and MAY 5, and original water from MAY 3 and MAY 5. It is odd that concentrated
water from MAY 3 gave a result that was not statistically significant, whereas
original water from that borehole gave a highly significant result. No phytotoxic
symptoms were reported, and it was reported that the borehole waters were found
to be free from any phytotoxic agents.
Mr Eagle's Test
335. Mr Eagle carried
out an experiment in August and September 1999 in his conservatory at Little
Shelford, Cambridgeshire. He took single alpine strawberry plants in pots filled
with garden soil which contained less clay than the soil in Packhouse Field
but was not greatly different in texture. He divided the plants into four pairs.
One pair was watered with tap water. The other pairs were watered with water
taken from boreholes in Packhouse Field on 18th September 1998 by the Environment
Agency and stored in plastic containers from that time until the experiment
was carried out. The second pair was watered with water from borehole MAY 2;
the third pair was watered from borehole MAY 5 and the fourth pair was watered
from borehole MAY 5B. All the watering was done from below the plant. Mr Eagle
recorded the following results and conclusions:
Results:
336. Control:- Leaves and growth
normal; slight edge scorch on 5% of leaves.
2 and 5:- Growth normal but pronounced terminal edge scorch on fully expanded leaves.
5B:- Growth stunted; severe terminal edge scorch on all but very immature leaves.
Conclusions:
337. All borehole waters caused
toxic effects on the strawberry plants consistent with chloride injury. All
borehole waters were contaminated, May 5B the most seriously.
338. The concentrations
of chloride in the preserved samples of groundwater taken from boreholes MAY
2, MAY5 and MAY 5B on 18th September 1998 were measured by Mr S Bottomley on
behalf of the Defendants after Mr Eagle carried out his experiment, and were
respectively 68,000 micrograms per litre, 65,500 micrograms per litre and 42,000
micrograms per litre. Two analyses of the water from each borehole were made.
The first and last mentioned figures were obtained twice each, and the other
is the average of two readings, 67,000 and 64,000 micrograms per litre. No figures
appear of the chloride concentration in the tap water, though Mr Eagle gave
evidence that he had been told by the Cambridge water company that the Cambridge
borehole water contains approximately 20,000 micrograms of chloride per litre.
339. Although Dr.
Duncan was justly critical of Mr Eagle's experiment, he agreed that the water
from borehole MAY 5B had on the face of it affected the growth of strawberry
plants more adversely than water from any of the other treatments.
340. Photographs
of the plants taken after the experiment were in evidence. There were no photographs
in evidence of the plants taken before the experiment. I accept what Mr Eagle
said under the heading "Results". The plants watered with borehole water were
indeed in worse condition at the end of the experiment than those watered with
tap water. Mr Eagle gave no opinion as to the effect, if any, of the numerous
organic chemicals found in small quantities in the borehole water used in his
experiment. Analyses for the three different boreholes differed. Mr Bottomley
carried out those analyses after the experiment was carried out. His results
appear in appendix 17. Samples of groundwater taken from the same boreholes
on the same date, 16th September 1998, were analysed by the Environment Agency
for chemicals including some of those tested for by Mr Bottomley. Those results
are included in appendix 6 but for convenience I have included in appendix 17
those that relate to chemicals tested for by Mr Bottomley.
341. All the analyses
that were in evidence were agreed between the parties. In the case of some of
the chemicals there were substantial differences between the two analyses of
the groundwater from the same borehole. Those differences were not explored,
though the point was taken by Dr. Duncan that the samples used in Mr Eagle's
test were a year old by the time that Mr Eagle carried out his experiment. He
wrote:
342. The water from MAY 5B on
the face of it has affected the growth of strawberry plants more adversely than
water from any other treatment. Yet the accompanying picture shows that it was
badly contaminated with algae that could not possibly be present in the water
in such numbers when collected from the borehole. Thus it has been substantially
altered in its characteristics since collection and its use is invalid. It is
however interesting that green algae can grow in such allegedly contaminated
material.
343. I conclude
that the results of Mr Eagle's experiment are generally consistent with the
Claimant's case, but I cannot accept that the borehole waters necessarily caused
the observed damage: they may have done.
Disease
344. Dr. Duncan
was of the opinion that the damage to the strawberries was caused by soil-borne
disease. He wrote in his first report:
... no damage was manifest in the field until 1992 from which time onwards Mr Peter Elliott's problems multiplied. He had been cultivating Packhouse Field for five years before then. ...
... most of the alleged damage observed from 1992 onwards occurred in crops that had grown well in their establishment year and only declined in subsequent years. ...
345. In my opinion Mr Elliott's
problems stemmed from chronic soil-borne, fungal plant diseases that became
acute as the same land was used to grow the same crop several times in succession
without sensible rotation.
346. In area A, the disease
was Phytophthora cactorum. As to area B, he said:
347. The extensive rotting of
roots would suggest that this problem was more likely to have been caused by
P. fragariae than P. cactorum. The failure to isolate or detect
a Phytophthora does not surprise me, as this is not always easy, especially
with P. fragariae. Diagnosis of P. fragariae is best done in late
winter when much of the affected root system is still white and red steles prominent.
Red steles and oospores the other principal confirmatory symptom, are also easier
to find at this stage. ... In the early summer, affected roots are usually badly
rotted making it difficult to find red steles and oospores.
348. He said that nearly all
the points he had raised regarding areas A and B applied also to area C. As
to area C, he went on:
349. It was also the area where
the soil structure was particularly poor - witness several reports by ADAS.
Poorly drained soils have two effects on plant disease. Firstly, wet conditions
allow soil-borne fungal pathogens to infect the plant and reproduce more easily
e.g. Phytophthora. Secondly, poorly aerated soils cause shortages of
oxygen to the plant roots. The defensive responses of plants to infection by
pathogens are largely reactive, i.e. not pre-formed but formed only in response
to the presence of the pathogen. The changes that take place often involve oxidative
processes and are therefore dependent on oxygen. Reduce the oxygen level and
active defence is affected adversely. Thus plants in badly drained soils are
often less resistant to disease.
351. The pathogens found in
Mr Elliott's fields do not need 'help' to cause severe damage to plants. Phytophthora
cinnamomi, which was found once on plants from Mr Elliott's propagation
tunnel, is officially a quarantine organism within the European Union, although
it is now very widespread in Europe. It would certainly be on any pathologist's
list of most serious disease-causing organisms. It is very closely related to
P. fragariae, and realistically it could have been mistaken for the latter
even by experienced pathologists. Although not found on the site, I strongly
suspect P. fragariae of being the real cause of the problem in Packhouse
Field. P. fragariae is also a quarantine organism within the EU, but
is now so widespread that in a recent MAFF survey of strawberry holdings in
England and Wales it was detected on two thirds of holdings, and is therefore
much commoner than most people, including ADAS pathologists, would have suspected,
certainly in 1992-1994. P. cryptogea, which was also isolated from plants
in the propagation tunnel is not a quarantine organism probably because it is
known to be widespread in Europe. It is however no less damaging to plants.
Incidentally it is also a Phytophthora species that could be very easily
confused with P. fragariae, and it is very pathogenic on raspberries,
especially in waterlogged soils. P. cactorum is not quarantine listed
but it also causes a very serious and widespread disease of strawberry. None
of these organisms needs weakened hosts to be pathogenic, although the physiological
condition of strawberry plants does strongly influence attack by P. cactorum,
plants are much more susceptible at flowering than at other times of the year,
precisely the time when severe damage was observed by Mr Elliott.
352. Thus three serious pathogens,
not to mention others listed at various times in ADAS reports, were found in
the polytunnel where the plants grown in the field were originally produced.
One of the three, as well as other soil-borne pathogens, was also isolated from
a large part of Packhouse Field itself.
353. Dr. Duncan was not cross-examined
about his evidence as to disease. His evidence was based on study of the documents,
not of the plants in question. He had not visited the site at the material time.
354. In 1992 phytophthora
was found in grobags containing fraises de bois supplied to Mr Elliott by an
outside supplier for planting out, and also in the propagation polytunnels.
I am satisfied on the evidence that Mr Elliott had never grown his own fraises
de bois plants in the polytunnel for planting out. He had grown some of his
own plants from seed up to the early 1990's, but not in the polytunnels. One
batch of fraise de bois plants supplied to Mr Elliott and planted in 1993 was
temporarily planted in the polytunnel, however. The evidence on which I base
those conclusions is the following.
355. Mr Peter Elliott gave
the following evidence in cross-examination (the first question related to the
year 1992):
356. Q. ... The ADAS report
indicates, as we just read, that you had Phytophthora in the polytunnels. Where
had the Fraises de Bois in the polytunnels come from originally?
A. David Barton.
A. Yes.
358. Q. So these Fraises
de Bois were being grown in Grobags, is that correct?
A. Yes.
361. Q. And they were Grobags
that were produced by somebody other than yourself, they were commercially produced
Grobags?
363. Q. So that the Phytophthora
that you had in the grobags in 1992 really could only have come from the plants
themselves?
367. Q. What did you do with
plants in the propagation tunnels, as they are called in some places, did they
go out in the fields?
368. A. We had plants in
the propagation tunnel for a short time.
A. No.
370. Q. Where had the Fraises
de Bois that were planted in Area B in 1990 come from?
A. David Barton
A. Yes.
And later on:
374. Q. Now, the Fraises
de Bois that we are talking about now were planted in April 1993, in Areas B
and C, is that about right?
A. David Barton.
377. Q. When you got the
Fraises de Bois in, were they planted directly into the fields, or did you put
them in your polytunnels for a while, can you help us, what did you do?
378. A. They came in the
back of a lorry, we unloaded them and put them on to a sheet of Mypex.
Q. Where?
379. A. Near the field on
some grass that we set aside for that area.
381. A. I think a few went
in earlier on with the asparagus, the first load, because it was hot and it
was easier to water them and keep the rabbits off the asparagus, basically.
382. Q. You were not actually
growing your own plants in the polytunnels for planting in the fields, were
you?
A. No.
A. No.
386. Q. Had you ever grown
your own plants from seed for the purposes of planting out into the fields?
A. I had, yes.
390. A. When did I last do
it? I think about 1980 something, late 80's, early 90's, we grew a few.
A. In 1992
394. Q. So you did grow some
yourself in 1992 as a trial; is that right?
A. Yes.
A. No.
396. In his letter of
8th December 1994 to Mr Peter Elliott, Mr Cole wrote:
397. The Phytophthora is a problem
that needs to be dealt with, as a result advice was given to improve the hygiene
in the propagation houses. In fact you decided to stop raising your own plants,
and had them produced for you by a nurseryman at Terrington St. Clement.
398. In the course of his cross-examination
Mr Cole was asked about another passage in that letter. The following were the
question and answer:
399. Q. And then you come
back to deal with first of all propagation of the Alpines in the small polyhouses.
You say here that:
"The propagation of the Alpines in the small polyhouses was not very successful, hygiene was lacking allowing the potential for the build up of disease. In 1992 the disease Phytophthora was found and as a result no further propagation has taken place on the holding".
400. What was your understanding
as to where and how Mr Elliott was getting plants for planting in his field
up until 1992?
401. A. In fairness I was
not aware where he was getting his plants from, because I had made the recommendation
to him, following the visit on 1992, that because of what I saw and the problems
that he had there, no way should he be doing any propagation of Fraises de Bois
on site.
Mr Yarham said:
402. A. ... we did look for
Red Core [Phytophthora fragariae] in this case over the years, and that
is one thing we never did find. I mean, we found other Phytophthoras but we
never found this particular Phytophthora and I would have thought my team would
be perfectly able to pick up this particular pathogen.
...
403. Q. ... I was just going
to ask you the basis upon which you gave the answer that your team would be
perfectly able to pick up this particular pathogen?
404. A. Well, because Red
Core has been a notifiable disease, one of the first things that one looks for
on receiving the strawberry plant is whether there are any symptoms at all that
could be due to Red Core. If there is anything suggestive of that pathogen,
then microscopic examination of the plant takes place to look for the spores
in the roots to confirm that diagnosis.
405. We looked at this over
a long period, samples from this holding over a long period at various times
of the year, and from the reports that I have read, never once was there a suggestion
that Red Core was present.
406. Mr Cole was cross-examined
on the point by Mr West as follows:
407. Q. ... Mr Cole, I want
to take you back to, if I can, the description of Red Core which we looked at
earlier.
408. Given the description that
one sees at page 1 of bundle 24 particularly of plants wilting and collapsing
and dying in dry weather, and the statement on page 2 that:
"In summer conditions do not favour the growth of the Red Core fungus and often by the time the leaf symptoms are visible its activity has ceased. Only a secondary brown decaying of the roots may then be seen with a sharp demarcation between healthy and rotten tissue and no apparent Red Core".
409. Is it not possible that
what was seen on Packhouse Field in 1994, as in 1993 and 1992, was in fact disease
of this nature in its later stages?
410. A. Not in my experience.
The reason that I state that is Phytophthora fragariae is very specific in its
symptoms. Yes, you will get a stunted plant. The leaf will tend to be blue,
because it is not getting nutrients and water and looks as if it is droughty.
411. Secondly, the root system
is rat-like. It has no side hairs on the root; so therefore you have roots that
look just like rats' tails. Hence it is so called.
412. The other thing is we are
talking about fragariae, Fraises de Bois, which is a form of fragaria vesca.
413. Jim Duncan, who I gather
is going to be an expert witness, is renowned nationally because of his work
he carried out at Scottish Crop Research Institute on the diagnosis of Red Core
from plant tissue. The operation consists of taking samples of strawberry plants,
taking their roots, chopping them up, putting those chopped up roots in containers
of compost, and kept, I think I am right in stating, very wet, because the disease
spreads in water within the soil compost, and growing an indicator plant, which
is fragaria vesca, wild strawberry, which is similar to what we have here, Fraises
de Bois.
414. But the tests for Duncan
test will show categorically that Red Core is present within six weeks of the
plants being tested. In other words, what I am stating is fragaria vesca or
Fraises de Bois, are extremely sensitive to Phytophthora fragariae. If a crop
had Red Core, and you are growing Fraises de Bois, I would estimate or anticipate
that that crop would collapse extremely fast, and the plants would not survive.
415. Q. What was happening
here that was different from that?
416. A. Here we had areas
where plants were showing stress in the sense that they were stunted, dwarfed,
small leafed, yellow, necrotic, not cropping well, they were under stress when
samples were taken and sent in, the diseases coming back that we had from the
plant pathology were Phytophthora cactorum, which is Crown Rot, which is a different
disease, which attacks the crowns not the roots, as Phytophthora fragariae.
We have also got another one, which was mentioned as Phytophthora, but the symptoms
were stated as being necrosis or dead tissue in the crown, which you would not
necessarily get to any extent with Red Core. The other diseases, Rhizoctonia
and cylindrocarpon, are secondary saprophytic fungi which tend to attack dead
plant tissue or plant tissue that is obviously under extreme stress and it tends
to be secondary.
418. A. I am certain in my
own mind that with the numerous samples that were taken, which I took and subsequently
Mike Foley, who is a plant pathologist from the Plant Clinic at Cambridge Laboratories,
actually visited the field himself and inspected the plants, and he took samples
and we did not find any Phytophthora fragariae, they were not identified and
they can be identified, I have stated by visual symptoms, they can be done by
microscopy, by looking for spores in the root tissue and as a last result, they
can be tested by Duncan tests.
419. He was asked about his
experience in identifying P. fragariae:
420. Q. ... what experience
and/or training had you personally had in 1994 of diagnosing or seeing or identifying
Phytophthora fragariae?
421. A. I was employed by
ADAS, Agricultural Development Advisory Service, and I had been with them for
-- at that time it would be 20 years. As part of work with ADAS we have regular
training sessions; we have our own trained pathologists, entomologists and scientists
and pesticide residue specialists, as has already been stated in this case.
So therefore every year there is a standard training programme for all advisers
and consultants within ADAS, and also within my remit at the time that I was
involved with the Elliotts' holding, I was actually in charge of the Plant Health
Seed Inspectorate, inspections of strawberry plant material --
423. A. There is a plant
health propagation scheme, which is a national scheme run in conjunction between
growers and the Government, MAFF, and I was involved in organising and overseeing
the actual visiting of sites and inspecting of crops for disease and identification
of disease on propagation crops, and as part of that work I was involved in
giving talks and seminars to Plant Health Seed Inspectorate people, instructing
them on fragariae, diseases and pests and the growing of strawberry crops.
424. Q. Can you give us some
idea how many times you had seen fragariae on the crops?
425. A. There would not be
a year when you would not see the disease in some form or the other, because
although it is a scheduled disease, as mentioned earlier on, it is a disease
that is fairly well prevalent in strawberry production areas.
426. Q. So in 1994, just
give us some idea how many times had you personally identified Phytophthora
fragariae in strawberry crops? Twice, five times, 10 times, 100 times; what
are we talking?
427. A. It would be less
than 10 times, in fairness. I would have thought it would be anything up to
five or six times in a season.
Q. In a season?
A. In a season.
Q. Yes.
432. I did not find symptoms
of red core. It must be acknowledged that early autumn is not the optimum time
of the year to check for red steles in "rats tailed" roots, although in my experiences
from previous years, I was able to confirm established red core without difficulty
around that time of year, when I visited a site myself. I found that affected
plants which had several main roots with blackened cortices, but there was no
discolouration of the steles even at the root tips. Completely decayed roots
of plants from Area B were dissected to check for the red core fungus, which
was not found.
433. Based on the absence of
characteristic root symptoms of red core and the lack of detection of oospores
in rotting roots, I considered that red core was very unlikely to be the cause
of any of the problem in Area B.
435. A. ... When I went along
to Area B -- I think I went quite late in the development of the problem --
I found no sign of Red Core. I think serological testing of the roots would
have detected it. If it was present in very low levels, I could have missed
it, but if it was present in very low levels then it would not have been the
cause of the problem.
436. On the evidence
of Mr Yarham, Mr Cole and Dr. Foley, it is clear that ADAS, with its skilled
staff, looked for P. fragariae and failed to find it. Also, the symptoms
that they described as having been found were not the symptoms of disease caused
by that pathogen. I conclude that Dr. Duncan's strong suspicion that the real
cause of the problem in Packhouse Field was P. fragariae is not justified.
Nevertheless, that cause cannot be ruled out.
437. Mr Eagle appeared
to have been persuaded by the results of Dr. Duncan's tests that chemicals alone
might not have caused the damage. At all events, in a supplementary report written
after Dr. Duncan had written his report of his test, he expressed the view that
the facts were strong evidence that the problems in the raspberries and strawberries
in Packhouse Field were caused by a mixture of contaminants, namely chloride,
manganese and hormone herbicides, either directly, or indirectly by making them
more susceptible to disease. In cross-examination, however, he accepted that
disease was a necessary part of the explanation. The following is an extract
from the relevant parts of the transcript:
438. Q. ... what is acting
in synergy with what in order to produce the damage that is complained of in
this case?
439. A. The manganese, the
chloride, and the hormone weedkillers.
440. Q. You are saying that
that alone is responsible for the damage in this case; is that it?
441. A. What I am saying
is that they were enough to affect growth of the plants and would make them
more susceptible to disease.
442. Q. Yesterday you said,
I think more than once, that it was your opinion that there was synergy between
the disease and the chemicals in the groundwater, such that the adverse effects
of the groundwater accentuated the effects of disease; is that your opinion
in this case or not?
443. A. Yes, that is what
I said. ... You confused me; the synergy is between the chemicals; the effect
on the plant, if a plant is weakened it becomes more susceptible to disease.
...
444. MR WEST: Help us, please,
with respect to this. Are you saying that in the absence of disease, any synergistic
effect between these chemicals would not be enough to explain the damage?
446. Q. So it is right, is
it not, that it is a material part of your hypothesis that the plants were affected
by disease?
447. A. That is part of it,
yes. ... That was diagnosed by the ADAS advisers, yes. We know disease was present.
448. Q. No, no. Do we understand
that it is a material part of your hypothesis that the plants that are damaged
were affected by disease as well as the chemicals?
A. Yes.
449. Q. So that the two,
in your opinion, have to act together in order to produce the damage that is
complained of; is that right?
451. Q. Do you understand
that that has never been the plaintiff's pleaded case? It has never been contended
on the part of the plaintiff that that is the explanation for the damage in
this case?
A. Yes. ...
454. A. ... the point is,
when the plants are damaged, the disease becomes more serious. ...
455. A. ... damage is reduction
in growth but not death, not plant death.
456. Mr West argued
that if disease was a necessary part of the explanation, it must be a sufficient
explanation. I reject that argument.
Soil Sickness
457. Minor pathogens
may build up to significant levels if a field is cropped repeatedly with strawberries.
The result is known as soil sickness.
458. I have mentioned
above Dr. Duncan's opinion that Mr Elliott's problems stemmed from chronic,
soil-borne fungal plant diseases that became acute as the same land was used
to grow the same crop several times in succession. He continued:
459. ADAS mentions 'soil sickness'
resulting from repeated cropping. This is a very ill-defined condition with
no obvious single cause. It occurs where a field is replanted with strawberries
within a year or two of a previous strawberry crop. It is thought to be due
to a build-up of various diseases, many minor, and pests in the soil during
the first crop. The condition can be avoided by rotations of at least five years
between strawberry crops. Annual soil fumigation with mixtures of chloropicrin
and methyl bromide is used routinely in California and other warmer parts of
the world to allow growers to use the same land repeatedly for strawberries.
Fumigation with methyl bromide has been increasingly common within the UK in
recent years but was not used in this case. Area B was replanted within two
years of the last crop and it is not surprising therefore that the crop did
not survive.
460. Nevertheless, Dr. Duncan
considered that in the absence of an aggressive disease, soil sickness would
probably not cause collapse of the crop.
461. Mr John Attwood
was a Senior Crop Consultant of ADAS. He gave evidence before me on behalf of
the Claimant. He gave this evidence in answer to questions from Mr Pugh:
462. A. Soil sickness, in
my experience, would not normally cause the sort of devastating losses that
were seen in Packhouse Field and in Area C. Normally, with soil sickness one
sees more of a subtle reduction in vigour, and normally it manifests itself
really right from the word go, right from when the plants are planted, so it
does not quite fit the pattern of decline that was seen in these fields. Furthermore,
we should note that Area C was actually a fresh site; it had never been planted
with strawberries before and, yet, the problems seen were as bad, if not worse,
in Area C, as in any of the other areas.
... I found several fungi that are associated with "soil sickness", in the rotting roots of plants from Area B. The most frequently isolated fungus was Cylindrocarpon. Some other fungi, e.g. Rhizoctonia sp. were also detected. ... I was not aware, in 1994, that the 1993 planting in area B followed two previous strawberry crops. However, I was aware that the 1993 planting followed soon after the grubbing of the 1990 strawberry planting, and because of this cropping succession, I was not able to rule out "soil sickness" as a possible cause of some of the problem in Area B. ... The presence of [the] fungi was, however, not sufficient evidence to support a diagnosis of "soil sickness" as the cause of all the symptoms including the severe plant necrosis. I was fully aware that these same fungi could be growing on roots weakened by non pathological factors.
464. The details of the cropping
in Area C - an arable field with no previous cropping with strawberries - indicated
to me that "soil sickness" should not have affected Area C.
Husbandry
465. It was said
that poor husbandry on the part of the Claimant had contributed to the problem.
Soil sickness, mentioned above, is an aspect of this question. Soil compaction
is another. Some soil compaction was found in Area B in 1994, though not in
all the areas of poor growth. Thus it cannot be a factor in all the damage.
Mr Cole's view was that soil compaction was not a factor in the Claimant's problem.
Mr Attwood said this in answer to a question from Mr Pugh:
466. Q. So far as husbandry
is concerned, you note that it was not in all respects perfect, but you do not
regard husbandry as being able to account for what happened to these crops?
467. A. Well, there has been
a lot of criticisms at various points of the husbandry, the weed control and
so on, but to be honest, I do not think any of these aspects that were criticised
would have accounted for the degree or extent of damage that was seen to the
crops.
468. It was, indeed, agreed
between the experts that the level of weed was not a cause of death of the plants.
Expanding Patches Of Damage
469. Mr West submitted
that a pattern of expanding patches of dead and dying plants, though consistent
with disease, was inconsistent with causation of damage by contaminated groundwater
rising through capillary action. I accept the former proposition, but not the
latter. Expanding patches are, in my judgment, consistent both with the spread
of disease and with a spatial and temporal concentration gradient of chemicals
in the groundwater.
Effect of Chloride
470. Mr Eagle said,
with reference to the groundwater under Packhouse Field, that concentrations
of chloride were consistently above the level of 50,000 micrograms per litre
which ADAS and also research work from Belgium says is damaging to strawberries.
In his first report he wrote that in eight of twelve borehole water samples
tested, chloride was detected at levels high enough to damage fruit crops. The
relevant figures appear in appendix 6.
471. I accept that
chloride in the concentrations shown in the groundwater in widely-scattered
places under Packhouse Field is capable of causing damage to strawberries and
other plants. Whether it did so is another question. It was not shown to do
so in Dr. Duncan's test: in that case, the explanation may be the concentration
of the ammonium ion present. In the case of Mr Eagle's test, it is true that
the plants treated with borehole waters showed toxic effects consistent with
chloride injury: but of the three pairs of plants so treated, that worst affected
had been treated with the lowest concentration of chloride. One of the other
pairs (that treated with water from borehole MAY 5) should perhaps be eliminated
from the comparison since the concentration of nitrogen from ammonia measured
on 18th September 1998 in that borehole was highest of the three, by a substantial
margin. See appendix 18. The ammonium ion may have counteracted the chloride
ion in that instance to a greater extent than in the other instances.
472. Moreover, wild
strawberries growing healthily near the WWTP when viewed by Dr. Duncan apparently
in February 1999 were close to borehole BH 16, which showed a high concentration
of chloride (147,000 micrograms per litre) in November 1998. That borehole had
a history of high concentrations of chloride (see appendix 8). Readings of conductivity
taken from June 1998 suggest high concentrations of chloride there. Mr Eagle
wrote in his first report, and I accept, that the high chloride levels must
be the main contributors to the high electrical conductivities. I set out in
appendix 19 readings of conductivity and of chloride concentrations in boreholes
under Packhouse Field and in borehole BH 16. In the absence of disease, the
probable proximity of high concentrations of chloride does not seem to have
injured the health of the wild strawberries. On the other hand, the presence
of ammonium might have protected them. On 16th November 1998, the ratio of the
concentrations of chloride and nitrogen-from-ammonium in the groundwater under
borehole BH 16 was 193, comparable with that used by Dr. Duncan in his test.
473. It was put
to Mr Eagle as a reductio ad absurdum (though it was not in evidence)
that drinking water contains up to 400,000 micrograms per litre of the chloride
ion, so that people who water their plants with mains water are likely to damage
them. I am not prepared to accept that mains water commonly contains anything
like that concentration of chloride. Moreover, Mr Eagle adduced in evidence
ADAS leaflet 776 of 1981 entitled "Water Quality for Crop Irrigation: Guidelines
on Chemical Criteria" which states "chloride levels can fluctuate greatly and
farmers and growers are advised to acquire a salinity test kit for monitoring
supplies on the day of intended use".
474. I conclude that chloride
must be a suspect in this case.
Manganese As Cause
475. Mr Eagle referred
to a study carried out in 1995 by Dr. Neil I Ward entitled "Trace Analysis of
Plant, Soil, Water Samples from Peter Elliott's Holding, Cambridge (1995)".
Dr. Ward took samples of soil and plants from areas A and B in Packhouse Field
and from a control site which he called area C but which I shall call area D
to avoid confusion with the field rented by Mr Elliott. Site D was about half
a mile from the AgrEvo factory and was stated as being not under the influence
of the chemical factory or of the effluent disposal works. He also took samples
of surface water and, using mini-boreholes, of groundwater at points towards
the northern boundary of Packhouse Field. All samples were analysed for 25 different
trace elements, mostly metals. The concentrations of manganese in two samples
of surface soil taken from area A were 748 and 629 micrograms per gram, dry
weight. A sample of soil taken from area A at 9 to 12 inches depth showed a
concentration of manganese of 348 micrograms per gram. Samples of surface soil
taken from area B showed concentrations of manganese between 714 and 1113 micrograms
per gram. A sample of surface soil taken from site D showed a concentration
of manganese of 466 micrograms per gram, and a sample taken at depth from area
A showed a concentration of manganese of 314 micrograms per gram. (The above
figures appear in appendices 10 and 20.) Dr. Ward noted that according to the
literature, the concentrations of manganese in soil usually lie between 200
and 800 micrograms per gram with a mean of 500 micrograms per gram. He concluded:
476. All three sampling sites
show typical soil trace element levels with the main exception being manganese.
Various A and B sites contain very high Mn levels, especially when compared
with the control site.
477. Generally,
the concentrations of manganese found in the plants fell within the normal range
of 15 to 350 micrograms per gram, dry weight (mean of normal range, 120 micrograms
per gram). The normal range is given without reference to species of plant.
It appears that that does not matter, since Dr. Ward commented in his report:
478. It is interesting to note
that plantain plants have slightly higher 'normal' trace metal levels when compared
with the other species.
479. In appendix 20 I show the
figures for those instances where, for more than one example of a given species
of plant, soil samples and plant samples were taken from the same location.
It shows some correlation between the concentration of manganese in the soil
and the concentration of manganese in the plant.
480. Four samples
of Fraises de Bois were taken. They contained 174, 260, 395 and 672 micrograms
of manganese per gram of plant dry weight. No abnormality was reported by Dr.
Ward in relation to the first two of those plants; the third was damaged but
not dead. The fourth was dead.
482. The results of Dr Ward
do not assist in this assumption. He reports high levels of manganese in plants
from PHF. The single dead plant containing 692 µg/g manganese is singled out.
The reason for this is surely erroneous. When plants die they immediately begin
to lose water and to wilt. In such circumstances all minerals in plants cells
become concentrated and it is therefore not surprising that the dead plant had
a high manganese content.
483. In my judgment,
the implication of that passage is that the figure of 672 micrograms per gram
was misleadingly high in comparison with the other figures mentioned, because
the dead plant had lost water. Mr Eagle gave this evidence:
484. Q. ... can you help
us, please, as to whether there is any validity in the point that Mr Makepeace
is seeking to make there?
485. A. Well, I do not believe
so, because all the plant samples are dried, as explained here. This applies
to live plants or dead plants or anything, they would all be dried for three
days it says here. So they will all be thoroughly dry in the same way. Once
the plant stops growing it is not going to take any more minerals of any sort,
so once it is dead it will not take up anything more.
486. It was put to Mr Makepeace
that his statement was misleading because all the plants that were the subjects
of the comparison were dried before the manganese concentration was measured.
Mr Makepeace explained that it was not only water that was lost by a plant when
it died. He said:
... a dead plant did not have the same relationship of dry weight to minerals present as a live plant would. ... You will get loss of carbohydrates and therefore loss of dry matter as well.
488. Q. Does your point,
in respect of the manganese level in plant B13, come to any more than this:
because of the processes which you talked about, which go on after death, you
cannot go back from the ratio of manganese in the dry weight to the dead plant
to what might have been in the living plant to determine whether or not it had
a toxic level of manganese?
490. It may be that
Mr Makepeace's point about the carbohydrates, which seems to have been an afterthought,
is valid so far as it goes in that dead plants lose carbohydrates (how fast
or to what extent he did not state) to an extent that live plants that are dried
do not. Nevertheless, if it had been a significant point I would expect Mr Eagle
to have appreciated it, though it was not put to him. I prefer the evidence
of Mr Eagle to that of Mr Makepeace, who damaged his credit, in my judgment,
by the following passage which he wrote in his supplemental report in reply
to a statement in Mr Eagle's supplemental report that many plant pathogens do
not cause serious injury unless there is some other adverse factor affecting
growth:
491. That many plants pathogens
do not cause serious injury unless there is some other adverse factor affecting
growth is untenable. Without referring to such outrageous incidents as the Irish
potato famine caused by Potato blight disease the statement is clearly incorrect.
There is no crop grown in Western culture that is not sprayed, treated or grown
such that plant pathogenic diseases are prevented. If they were related to the
occurrence of other adverse growth factors they could be easily cured or prevented
and plant disease become of no economic significance.
492. The first sentence in that
passage does not follow from the remainder, which simply supports the obvious
proposition that there are plant pathogens which cause serious injury in the
absence of some other adverse factor.
493. Dr. Eagle considered
that the toxic concentration of manganese in plants was 500 micrograms per gram.
He said that those in ADAS, including himself, regarded anything above 500 micrograms
per gram as highly toxic. He considered the level of 395 micrograms per gram
as probably high enough to be damaging.
494. Dr. Duncan
adduced an article in the Grower, issue of August 5th 1999, by Professor Lieten,
whom he described as a well-respected Belgian authority on growing strawberries.
The article gave the optimum concentration of manganese in strawberry leaves
as 30 to 500 micrograms per gram; it stated that manganese levels between 50
and 200 micrograms per gram were considered sufficient for strawberry growth,
and that the toxic level of manganese in the leaves was 800 micrograms per gram.
About 15 to 20 micromoles per litre in the nutrient solution were guideline
values for optimum response with Elsanta variety of strawberry grown in peat
bags. That is equivalent to 875 to 1100 micrograms per litre, approximately
the concentration found in the groundwater in borehole MAY 1 and used in Dr.
Duncan's test.
495. In spite of
Dr. Duncan's evidence, I am satisfied that Dr. Ward's tests raise a serious
question whether the two of Mr Elliott's Fraises de Bois plants sampled by Dr.
Ward and shown to contain concentrations of manganese of 395 and 672 micrograms
per gram dry weight had been damaged by manganese. Indeed, Dr. Ward reached
the following conclusion in his report:
496. In summary it appears that
this property may have a possible problem of manganese contamination. Could
raised Mn levels affect the quality or growth of the Fraises de Bois plants?
Reported cases of manganese toxicity symptoms in plants are generally characterised
by dried-out leaves with brown sections or even spots in older plant organs.
Symptoms can vary from one plant species to another, and in many food crops
Mn toxicity can easily result in plant death. At present these reported observations
do relate in part to the Fraises de Bois plants although further detailed analysis
is recommended.
497. There is no evidence before
me that that recommendation was followed.
498. The concentrations
of manganese in water reported by Dr. Ward were, in the case of surface water,
3.75 and 9.45 micrograms per litre; and in the case of groundwater, 0.32, 1.60
and 3.56 micrograms per litre. Four out of those five figures exceed the normal,
which are stated as ranging from 0.1 to 0.8 micrograms per litre, with an average
of 0.4 micrograms per litre. But they are substantially below the concentrations
of manganese found in the groundwater in all the boreholes in the Claimant's
land tested for manganese, save only borehole B 4 (see appendix 6). They are
also far below the concentrations of manganese in nutrient solution recommended
by Professor Lieten for cultivation of Elsanta strawberries in peat bags.
499. A batch of
damaged alpine strawberries from Mr Elliott's fields was received by ADAS on
29th September 1994 and was reported on as follows:
500. Our tests for disease are
now complete. We found no evidence of either Verticillium or crown rot. We did
find high levels of Rhizoctonia associated with both the necrotic crown tissue
and the petioles. This has been documented in the USA as a cause of both a root
rot and a decay of the lower crown, although in the UK it tends to be thought
of as a somewhat weaker pathogen often attacking strawberry plants which are
growing poorly due to other factors.
501. A soil and leaf analysis
was carried out, the results of which do not appear in terms of figures; however,
it was stated that the leaf manganese level was quite adequate. Another batch,
received on 3rd October 1994, was reported to contain a concentration of 93.6
micrograms per gram of manganese, without further comment. A further batch was
received on 21st December 1994. The analysis report gave the following concentrations
of manganese in the leaves of the plants: 213 micrograms per gram (apparently
from area A), 164 micrograms per gram (apparently from area C) and 214 micrograms
per gram (apparently from area B). It is clear on Mr Eagle's evidence that those
concentrations do not represent toxic levels of manganese in the plants.
502. Whilst manganese
may have contributed to the damage to some of the plants the subject of the
claim, I am satisfied that it did not contribute to the damage to all those
that were damaged.
Wild Strawberries
503. Dr. Duncan
visited the site on 21st April 1998 and again on 1st February 1999. He said
that (apparently on the 2nd occasion) he found healthy and vigorous wild strawberry
plants growing near the Waste Water Treatment Plant. They were probably Fragaria
semperflorens, as there were no runners on the plants. He found it difficult
to imagine how wild plants, presumably grown from seed deposited in bird droppings,
would be immune to levels of chemical contamination that were killing cultivated
plants of the same species.
504. Dr. Duncan
saw those strawberries growing in two areas against the wall on the west and
south sides of the Waste Water Treatment Plant, just north of borehole 52 and
roughly mid-way between boreholes 52 and BH 16. The nearest boreholes were thus
those two boreholes and boreholes 54 and 55. How long those plants had been
growing there does not appear. The four boreholes in question were tested at
various times for chemicals in the groundwater: see appendix 8. It will be seen
that in the period up to Dr. Duncan's visit there were found in the groundwater
in BH 16 all but two (atrazine and dicamba) of the chemicals used in Dr. Duncan's
experiment, and for the most part in greater, sometimes vastly greater, concentrations.
Depth of Roots
505. Mr West submitted
that the level of the groundwater under the southern side of Packhouse Field
was too far below the surface of the land for the plants to take up that water.
The existence of damage to the plants at that side of the field thus negatived
the Claimant's case as to causation. The evidence is that at the southern side
of the field the water table is about four to five metres below the top of the
bedrock (chalk marl) and the surface of the topsoil is about half to one and
a half metres above that. A depth to groundwater of 5.5 metres appears for May
1996. I accept Dr. Ashley's evidence that the capillary zone above the groundwater
is likely to extend to the top of the bedrock, and possibly into the soil zone.
Plants whose roots were one metre in depth could have had access to the groundwater.
Dr. Eagle said, and I accept, that the roots of some of the strawberry plants
could have extended down to a depth of one metre; on the evidence, I find that
the majority would not normally exceed 65 cms, though the roots will grow downwards
to find water when necessary. I conclude that some, but not all, of the strawberry
plants at the southern edge of the field would have had access to the groundwater.
Discussion
506. The damage
to the strawberries could have been caused by disease without any aggravating
factor. Dr. Duncan considered that the problem was solely attributable to disease:
he strongly suspected Phytophthora fragariae. It is true that P. cactorum
was found in area A in 1994, and Dr. Duncan considered that to be the cause
of the problem there. Although the point was not specifically taken, there is
the possibility that there was no common cause of all the damage. Nevertheless,
the nature, extent and timing of the damage strongly suggest a common cause.
I am satisfied that disease played a part, but I think it unlikely that the
problem was solely attributable to disease. Even allowing for Dr. Duncan's point
that it is not always easy to identify P. fragariae, I attach weight
to the fact that that disease was never found by the experienced persons looking
for it. It is true that the Claimant had been growing his strawberries on the
same ground without rotation with other crops, and I accept that that can lead
to soil sickness. But soil sickness does not readily explain all the symptoms
that were found. Neither soil sickness, nor a single disease, explains the damage
to the other plants. I accept Dr. Ridge's evidence that the same disease would
not affect all the plants, including the weeds.
507. I am impressed
by the evidence of the witnesses from ADAS and Dr. Ridge that there is some
other factor in addition to disease. Dr. Eagle's views changed both before the
hearing and apparently during it. The identities of the chemicals that he blamed
for the trouble changed; he came late to emphasise manganese; and during cross-examination
he accepted that disease was a necessary part of the explanation. He has been
criticised for changing his mind. I do not blame him; the cause of the problem
is elusive. It is possible that the susceptibility of the plants to disease
was increased by the chemicals, as said by Mr Eagle in evidence that I have
quoted above. Mr Eagle wrote in his second report, and I accept, that many plant
pathogens do not cause serious injury unless there is some other adverse factor
affecting growth. Dr. Duncan's experiment showed that the groundwater in borehole
MAY 1 was capable of adversely affecting the growth of the plants. They were
not tested for susceptibility to disease, the point not having then come to
the fore.
508. Mr Eagle more
or less conceded that none of the organic chemicals individually was shown to
be in sufficient concentration to cause damage. The following exchange took
place in the course of his cross-examination by Mr West, with reference to the
highest concentrations of herbicides shown:
509. Q. It is absolutely
inconceivable, is it not, that these small amounts of chemical, at their very
highest, in the borehole, could have caused the degree of devastation that is
claimed in this litigation; is that not right?
510. A. I have never suggested
that these caused it. I suggested that they contribute to it, as a result of
synergism. It is a well-known fact that one chemical can accentuate the effect
of another. ... As I have already said, I am not suggesting that most of these
levels, on their own, would be enough to seriously damage the crops, but through
synergism it could accentuate the effects of chloride and manganese; that is
what I am suggesting.
511. Mr Eagle's
view that synergy occurred between the organic chemicals and chloride or manganese
was not supported by any evidence relating to those particular chemicals or
to the particular species of plant in question. I accept Mr Eagle's evidence
that synergy is a known phenomenon, but he was not able to cite any literature
that the minuscule quantities of organic chemicals revealed in this case in
the groundwater in most of the boreholes have such an effect. In general the
concentrations were far less than those used in Dr. Duncan's experiment. Mr
Eagle's opinion may be right, but on the evidence before me it can be regarded
as at best a plausible hypothesis.
512. There is no
evidence as to the concentrations of any chemicals (organic or inorganic) in
the groundwater under the Claimant's fields at any time before 1995. The principal
damage complained of related to the years 1992 to 1994. No damage appears to
have been suffered before 1992. There is nothing in the meteorological records
or, indeed, any other evidence, to suggest that concentrations of the chemicals
are likely to have been less before 1992. The unusually wet period from autumn
1993 to spring 1994 could perhaps have caused a mound of groundwater to build
up so as to lead to southward flow from under the effluent pipeline to Packhouse
Field. But while the soil was moist the plants would not be drawing groundwater.
The short period of drought thereafter before the damage appeared could conceivably
have led to the plants, or some of them, taking their water from the bedrock.
But that is speculation and does not explain the earlier damage. It is, of course,
true that the effluent pipe was boxed in at the end of 1994. There is no evidence
to suggest any correlation, by reference to location, between the observed damage
to the Claimant's crops and the concentrations of chemicals in the groundwater.
513. The positive
evidence in support of the Claimant's case is insufficient to persuade me that
it is more likely than not that the damage to the strawberries was caused or
contributed to by any of the chemicals in the groundwater. The question remains
whether the weakness of all other explanations offered should tilt the balance.
Has the Claimant proved his case by a process of elimination? In my judgment,
no. It is true that the researches of the experts have failed to adduce any
better explanation. Whilst not accepting, I do not reject out of hand, the other
explanations that have been offered. All of the explanations are open to serious
objection: it may well be that none of them is correct.
Blackberries
514. Dr. Ridge wrote
this about blackberries in her report to HM Inspectorate of Pollution:
515. These were planted in rows
... at the western end of the field. They are deep rooted and showed little
evidence of drought damage, bearing a good crop of fruit on some plants. Two
types of symptoms were present: (i) scattered plants showed quite severe growth
inhibition ... and some were brown and half dead in appearance; (ii) many plants
showed a sudden narrowing close to shoot tips and beyond this leaves were small
and somewhat distorted ... Twisting and in-curling of otherwise healthy leaves
close to the shoot tips was apparent on some plants ...
516. This late on-set damage
was most frequent on higher canes and could have resulted from (a) aerial pollution.
Alternatively, (b) it may have arisen when roots penetrated to or proliferated
at a particular depth in the soil where some chemical contaminant occurred;
given the severe drought, increasing utilisation of water at progressively greater
depths is likely to have occurred as the soil dried out. Dry soil conditions
would also tend to increase the concentration of any toxic substances present
in soil water. Because of the patchy nature of damage, my preference is for
hypothesis (b), but (a) and (b) cannot be distinguished with certainty from
the evidence available.
517. Some abnormal features
of plants (leaf curling and tip damage) resemble those produced by selective
herbicides. There is insufficient evidence to resolve this point but chemical
analysis of plant tissues might provide an answer.
518. I observed no symptoms
typical of manganese damage, although this might have been expected from the
high levels reported in this area for surface water run-off. ... It is quite
possible that high Mn is one of several factors contributing to the patchily
poor growth of this species.
519. Mr Michael
Talbot gave evidence of fact before me on behalf of the Defendant. He was a
trained biologist and practised as an adviser to farmers on pesticides; he had
been employed by the Defendant from 1985 to 1994. On 2nd November 1994 he visited
Packhouse Field. He gave evidence about the blackberries. He said:
520. The blackberries had been
recently pruned and trained and some of the leaves showed symptoms of cupping
with the edges curled upwards. I was shown photographs by Courtenay and Peter
Elliott which showed that, prior to the pruning, the leaves of almost the whole
of the blackberry crop were twisted and cupped. I concluded that the plants
may have been sprayed with a herbicide inadvertently - probably when a knapsack
sprayer previously used to spray a herbicide elsewhere was then filled with
an insecticide without having been thoroughly cleaned, and this contaminated
insecticide was then applied to the blackberry crop. It is possible that this
occurred in September 1994 when the blackberries were sprayed to control aphids
(an insect pest of the blackberry). ...
521. Leaf cupping was also evident
on an Alder tree in the hedgerow adjacent to the effluent pipeline which is
on AgrEvo's land. I also saw some leaf distortion on the shoots of some of the
Jerusalem artichoke plants in various of the artichoke windbreaks on Packhouse
Field. The symptoms displayed by the plants indicated to me that a plant growth
regulator herbicide had probably been applied unevenly, since the damage had
no pattern in terms of the location and spread of the plants affected. This
uneven spraying is a common occurrence and could well have explained the symptoms
which I witnessed. The fact that the damage had no pattern in terms of the location
and spread of the plants affected suggested to me that the chemicals may have
been applied unevenly when weeds in the area were sprayed with herbicide. It
is difficult for a farmer to use a knapsack sprayer and ensure that there is
an even distribution of spray only upon weeds etc..
522. He visited the field again
on 15th May 1995. In relation to that visit, he said:
523. I saw leaf cupping on some
of the blackberry plants on Packhouse Field. Although the damage was far less
pronounced than on my last visit in November 1994 I still believed that the
symptoms were caused by uneven spraying of herbicides or by the use of a sprayer
contaminated by herbicide. I have since read a letter dated 8 December 1994
from I W Cole of ADAS to Peter Elliott which states that Dow Shield was allowed
to drift onto the blackberry crop in 1993 and had caused symptoms of rolling
of the leaf. Dow Shield is a herbicide which can persist in plant tissue for
a long period as it is not metabolised (broken down) by plants (The Pesticide
Manual published by The British Crop Protection Council). According to Peter
Elliott's list showing the sprays he used between 1989-94 annexed to his Statement
of Claim, Dow Shield was also purchased for use on weeds in the blackberry crop
in Packhouse Field in May 1994. Some of the damage I saw in November 1994 could
have been similarly caused while thistles in the vicinity were being sprayed
in May 1994.
524. It was not
ultimately seriously in dispute that the damage to the blackberries was caused
by hormone herbicides. The Defendant contended that the damage was caused by
spray drift when the Claimant sprayed thistles in the blackberry area with Dow
Shield (active ingredient, clopyralid, a hormone herbicide), using a knapsack
spray. The Claimant gave evidence that he had sprayed the thistles carefully
to avoid the blackberries, using a spray with a hood. He had sprayed the thistles
in 1993 and 1994. I am satisfied on the evidence that some spray drifted onto
the blackberries in 1993. It may have done so again in 1994. When Dr. Ridge,
to whose evidence I attach great weight, expressed her preference for hypothesis
(b), she gave as a reason the patchy nature of the damage, having in mind the
possibility of aerial pollution from the Defendant's land. Her reason does not,
in my judgment, apply if the source of possible aerial pollution was a knapsack
spray.
525. There was no
concentration of damage to the blackberries in the vicinity of borehole MAY
1, where the concentrations of hormone herbicides were subsequently found to
be greater than elsewhere in the blackberry area.
526. On the evidence
available, the pattern of damage observed is more likely to have been caused
by spray drift than by the groundwater. I am not satisfied that the damage to
the blackberries was caused by the latter.
Raspberries
527. Raspberries
have not featured largely in this case. The damage to the raspberries is pleaded
to have been sustained in 1993, 1994 and 1995 to raspberries planted in 1992.
529. I have observed that those
planted in 1992 towards the western end of Packhouse Field have always been
stunted and have not reached their potential cane height. The flowers were unnaturally
clustered at the top of the canes which did not produce lateral shoots. The
fruit was small, soft and not a good colour. The crop was abandoned in 1994.
530. The three short rows of
Allgold planted towards the eastern end of the field in 1989 were vigorous for
their first three to four years and fruited normally and well. Then they lost
their vigour and their flowers became clustered at the top of the canes, as
with the other area of this variety.
531. There appears to have
been no mention to ADAS by the Claimant of problems with his raspberries until
May 1995. Mr Talbot said:
"I saw a loss of vigour and general deterioration in the raspberry crops. I did not see any evidence of herbicidal damage to the raspberry plants. I again considered that any loss of vigour and general deterioration was probably caused by Phytophthora, namely disease, rather than any chemical contamination."
532. Nevertheless, Mr Elliott
was cross-examined on the basis that the damage had been caused by spray drift.
He denied it.
533. The evidence
is wholly insufficient to satisfy me that any damage to the raspberries was
caused by the chemicals emanating from the Defendant's land.
Findings and Conclusions
534. I find that
the organic chemicals and the majority of the chloride found in the groundwater
under Packhouse Field and under area C came from the Defendant's land. I am
not satisfied that a significant proportion of the manganese found in the groundwater
under Packhouse Field where the fraises de bois or raspberries were growing
or under area C came from the Defendant's land. I am satisfied that the organic
chemicals and the chloride found under Packhouse Field came, at least in substantial
proportion, by way of leakage from the Defendant's effluent pipeline. I am not
satisfied that the chemicals found under area C came in that way.
535. I am not satisfied
that the damage to the strawberries or the raspberries was caused by any of
the chemicals in question. I am satisfied that the damage to the blackberries
was caused by herbicide, but not that such herbicide emanated from the Defendant's
land.
Decision
The Nine Statements of Case APPENDIX 2
|
Case No. |
Chemicals Causing The Damage |
Date of Damage |
Crop |
Yield/Expected Yield punnets |
Area Planted Acres |
Location |
Date Planted |
|
1 |
[1] |
1992 |
Strawberries |
16484/56500 |
2.75 |
Area B
|
October 1990 |
|
2 |
[1] |
1993 |
Strawberries |
24019/56500 |
1 2
|
Area B Area C |
April 1993 April 1993 |
|
3 |
[1] |
1993 |
Raspberries |
1552/6000 |
¾ |
Near West end of Packhouse Field
|
1992 |
|
4 |
[1] |
1994 |
Strawberries |
7901/56500 |
1 1 2
|
Area A Area B Area C |
June/July 1994 1993 1993 |
|
5 |
[1] |
1994 |
Raspberries |
nil/12000 |
¾ |
Near West end of Packhouse Field
|
1992 |
|
6 |
[2] |
1994 |
Blackberries |
4272/6000 |
1 |
West end of Packhouse Field
|
1992 |
|
7 |
[1] |
1995 |
Strawberries |
nil/56500 |
1 |
Area A
|
August 1994 |
|
8 |
[1] |
1995 |
Raspberries |
nil/12000 |
¾ |
Near West end of Packhouse Field
|
1992 |
|
9 |
[2] |
1995 |
Blackberries |
nil/9000 |
1 |
West end of Packhouse Field |
1992 |
Chemicals [1] Chloride, probably aggravated by some or all of the chemicals mentioned in [2] below.
[2] Hormone herbicide, probably 2,3,6-TBA. The other hormone herbicides which could have caused the damage were mecoprop; MCPA; 2,4-D; dichlorprop; dicamba. The hormone herbicide effect was probably aggravated by other chemicals identified in paragraph 5 of statement of claim (as ultimately pleaded, chloride and manganese).
APPENDIX 3
SKETCH MAP OF
PACKHOUSE FIELD AND AREA C
indicating the positions of boreholes
APPENDIX 4
List and descriptions of chemicals
Organic
Herbicides
( Atrazine
soil-acting - ( Simazine
( Trietazine
( Benazolin )
( 2,4-D
hormone-type - ( Dicamba
( Dichlorprop
( MCPA
( Mecoprop
Solvents
Chloroform
Xylene
Phenols *
Toluene
Organophosphates
543. Hempa
- formulant used in insecticide formulations containing the active
ingredient schradan.
Inorganic
Manganese )
544. Chloride
) - these ions form part of various chemical compounds.
Ammonium )
545. Prochloraz-manganese:
a fungicide formulation comprising metal ion complex.
* Dr. Duncan described pentachlorophenol and phenol (in the singular) as agrochemicals; Mr Makepeace described pentachlorophenol and phenols as solvents. Dr. Garner said that phenol itself was not a solvent. It is unnecessary for me to resolve this question, which is irrelevant to the matters I have to decide.
APPENDIX 5
Concentrations of chemicals in groundwater near defendant's warehouse (micrograms per litre)
|
Borehole
|
1
|
5 |
6 |
7 |
BH 4
|
||||||||||
|
Atrazine |
27.08.92 |
< 10 |
14.01.93 |
4 |
14.01.93 |
3 or 63 |
01.06.95 |
6 |
01.07.95 |
11 |
|||||
|
01.02.95 |
2 |
01.12.96 |
241 |
||||||||||||
|
Benazolin |
01.02.95 |
1 |
01.02.95 |
90 |
01.07.95 |
2030 |
|||||||||
|
01.06.95 |
399 |
01.04.96 |
462.7 |
||||||||||||
|
07.11.96 |
2690 |
||||||||||||||
|
01.12.96 |
167 |
||||||||||||||
|
04.03.97 |
275 |
||||||||||||||
|
27.05.97 |
5840 |
||||||||||||||
|
12.03.98 |
2250 |
||||||||||||||
|
Dicamba |
14.01.93 |
48 |
27.08.92 |
69 |
01.07.95 |
52 |
|||||||||
|
01.02.95 |
60 |
01.02.95 |
84 |
01.04.96 |
0.7 |
||||||||||
|
01.08.96 |
59 |
||||||||||||||
|
07.11.96 |
135 |
||||||||||||||
|
27.05.97 |
19.5 |
||||||||||||||
|
13.11.97 |
120 |
||||||||||||||
|
Ethofumesate |
14.01.93 |
63 |
14.01.93 |
1300 |
27.08.92 |
1500 |
01.07.95 |
1200 |
|||||||
|
01.02.95 |
1580 |
01.02.95 |
510 |
07.11.96 |
2760 |
||||||||||
|
01.06.95 |
912 |
01.12.96 |
4.3 |
||||||||||||
|
04.03.97 |
1770 |
||||||||||||||
|
27.05.97 |
3040 |
||||||||||||||
|
13.11.97 |
1000 |
||||||||||||||
|
Mecoprop |
14.01.93 |
1200 |
27.08.92 |
2340 |
01.07.95 |
4700 |
|||||||||
|
01.02.95 |
1240 |
01.02.95 |
590 |
01.08.96 |
362 |
||||||||||
|
01.06.95 |
8 |
07.11.96 |
20200 |
||||||||||||
|
01.12.96 |
148 |
||||||||||||||
|
27.05.97 |
2230 |
||||||||||||||
|
13.11.97 |
4590 |
||||||||||||||
|
12.03.98 |
4350 |
||||||||||||||
|
MCPA |
14.01.93 |
2 |
14.01.93 |
19 |
01.02.95 |
2320 |
01.07.95 |
2100 |
|||||||
|
01.08.96 |
2 |
||||||||||||||
|
01.12.96 |
8.9 |
||||||||||||||
|
|
27.5.97 |
370 |
|||||||||||||
|
|
|||||||||||||||
|
APPENDIX 5 (cont.) |
|||||||||||||||
|
Borehole
|
1 |
5 |
6 |
7 |
BH 4
|
||||||||||
|
Simazine |
27.08.92 |
< 10 |
14.01.93 |
4 |
14.01.93 |
19 |
01.06.95 |
4 |
01.12.96 |
49.5
|
|||||
|
Trietazine |
27.08.92 |
80 |
14.01.93 |
3 |
14.01.93 |
49 |
27.08.92 |
140 |
01.04.96 |
2.2 |
|||||
|
01.02.95 |
30 |
01.02.95 |
75 |
01.08.96 |
2.0 |
||||||||||
|
01.06.95 |
20 |
07.11.96 |
2.4 |
||||||||||||
|
01.12.96 |
412 |
||||||||||||||
|
04.03.97 |
0.391 |
||||||||||||||
|
27.05.97 |
2.1 |
||||||||||||||
|
2,3,6-TBA |
27.08.92 |
< 1 |
14.01.93 |
18 |
14.01.93 |
8 |
01.02.95 |
4020 |
01.07.95 |
158 |
|||||
|
01.02.95 |
1400 |
01.06.95 |
17 |
01.08.96 |
23 |
||||||||||
|
07.11.96 |
599 |
||||||||||||||
|
01.12.96 |
4.1 |
||||||||||||||
|
27.05.97 |
82.3 |
||||||||||||||
|
13.11.97 |
179 |
||||||||||||||
|
12.03.98 |
222 |
||||||||||||||
|
Hempa |
01.08.96 |
3050 |
|||||||||||||
|
07.11.96 |
263 |
||||||||||||||
|
01.12.96 |
63 |
||||||||||||||
|
04.03.97 |
350 |
||||||||||||||
|
27.05.97 |
144 |
||||||||||||||
|
13.11.97 |
199 |
||||||||||||||
|
|
|||||||||||||||
|
Schradan |
01.08.96 |
4680 |
|||||||||||||
|
07.11.96 |
744 |
||||||||||||||
|
04.03.97 |
1240 |
||||||||||||||
|
13.11.97 |
82.5 |
||||||||||||||
|
|
|||||||||||||||
|
Chloroform |
01.08.96 |
16 |
|||||||||||||
|
07.11.96 |
2 |
||||||||||||||
|
01.12.96 |
9.7 |
||||||||||||||
|
04.03.97 |
2.7 |
||||||||||||||
|
27.05.97 |
3.3 |
||||||||||||||
|
13.11.97 |
8.1 |
||||||||||||||
|
12.03.98 |
13.3 |
||||||||||||||
|
|
|||||||||||||||
|
Phenols |
27.08.92 |
< 50 |
14.01.93 |
710 |
14.01.93 |
3300 |
27.08.92 |
74000 |
01.04.96 |
6400 |
|||||
|
01.02.95 |
37000 |
01.02.95 |
15000 |
01.08.96 |
1500 |
||||||||||
|
01.12.96 |
1600 |
||||||||||||||
|
27.05.97 |
0.561 |
||||||||||||||
|
13.11.97
|
403 |
||||||||||||||
|
APPENDIX 5 (cont.) |
|||||||||||||||
|
Borehole
|
1 |
5 |
6 |
7 |
BH 4
|
||||||||||
|
Toluene |
27.08.92 |
30 |
14.01.93 |
200 |
14.01.93 |
200 |
27.08.92 |
460 |
01.07.95 |
0.2 |
|||||
|
01.02.95 |
27500 |
01.02.95 |
60 |
07.11.96 |
17 |
||||||||||
|
04.03.97 |
48.5 |
||||||||||||||
|
27.05.97 |
44.4 |
||||||||||||||
|
13.11.97 |
93 |
||||||||||||||
|
12.03.98 |
97.4 |
||||||||||||||
|
Trichloroethylene |
01.08.96 |
1.9 |
|||||||||||||
|
07.11.96 |
1100 |
||||||||||||||
|
01.12.96 |
0.7 |
||||||||||||||
|
04.03.97 |
5 |
||||||||||||||
|
01.04.97 |
8.5 |
||||||||||||||
|
27.05.97 |
41 |
||||||||||||||
|
13.11.97 |
6 |
||||||||||||||
|
12.03.98 |
13.2 |
||||||||||||||
|
Tetrachloroethylene |
01.08.96 |
1.2 |
|||||||||||||
|
07.11.96 |
12.9 |
||||||||||||||
|
01.12.96 |
1.8 |
||||||||||||||
|
04.03.97 |
0.5 |
||||||||||||||
|
01.04.97 |
0.9 |
||||||||||||||
|
27.05.97 |
0.6 |
||||||||||||||
|
13.11.97 |
0.8 |
||||||||||||||
|
12.03.98 |
1.3
|
||||||||||||||
|
Chloride |
27.08.92 |
27000 |
14.01.93 |
300,000 |
14.01.93 |
440,000 |
27.08.92 |
340,000 |
|||||||
APPENDIX 7
546. Analysis of samples taken
on 02.01.96 of effluent ex leak along WWTP pipeline
UNITS: µg/litre
|
Chemical |
Analysis By NRA |
Analysis By Agrevo |
|
ATRAZINE |
46.7 |
35 |
|
BENAZOLIN
|
211 |
|
|
DICAMBA |
60 |
|
|
DICHLORPROP |
N.D. |
N.D. |
|
ETHOFUMESATE
|
146 |
133 |
|
MECOPROP |
460 |
|
|
METHIOCARB |
N.D. |
N.D. |
|
MCPA |
370 |
|
|
SIMAZINE |
17.2 |
12 |
|
TRIETAZINE |
12.5 |
12 |
|
TBA |
117 |
|
|
2,4-D |
N.D. |
N.D. |
|
CHLOROFORM |
70.2 |
|
|
TETRACHLOROETHYLENE |
3.9 |
|
|
TRICHLOROETHYLENE |
259 |
|
|
PHENOLS |
< 1.0 |
20 |
|
TOLUENE |
2.8 |
|
|
XYLENE |
18.6 |
|
|
CHLORIDE |
80000 |
|
|
MANGANESE |
N.D. |
N.D. |
APPENDIX 10
548. Concentrations of Manganese
in the soil of Packhouse Field, micrograms per gram, dry weight
|
Date |
Area A |
Area B |
MAY 1 |
MAY 2 |
MAY 3 |
MAY 4 |
MAY 5 |
|
May 1996 |
649 |
652 |
713 |
612 |
613 |
||
|
1995 (Dr. Ward) |
748 |
872 |
|||||
|
348 |
909 |
||||||
|
629 |
1113 |
||||||
|
824 |
|||||||
|
714 |
Notes (1) Dr. Ward's measurements in areas A and B were taken at the surface, save for the reading of 348, which represents a depth profile from 9 to 12 inches below the surface. The reading for MAY 1 was taken from 10 to 30 cms below the surface; the readings for MAY 2, MAY 3, MAY 4 and MAY 5 were taken from surface to 10 cms deep.
549. (2) Normal range quoted
by Dr. Ward from the literature: 200 to 800 µg/g, mean 500.
APPENDIX 11
550. Concentrations of Manganese
in Groundwater Under Defendant's land: June and July 1997
|
Piezometer Borehole Number |
Concentration of Manganese (micrograms per litre) |
|
|
41 |
100
|
|
|
82 |
1430
|
|
|
56 |
50
|
|
|
57 |
< 50
|
|
|
83 |
70
|
|
|
60 |
< 50
|
|
|
71 |
< 50
|
|
|
85 |
290
|
|
|
80 |
1510
|
|
|
97 |
1500
|
|
|
98 |
170
|
|
|
99 |
120
|
|
|
100 |
60
|
|
|
101 |
70
|
|
|
102 |
400
|
|
|
103 |
530
|
|
|
104 |
230 |
|
551. The symbol < 50 indicates
that manganese was tested for but not detected, the minimum detectable concentration
being 50 micrograms per litre.
APPENDIX 13
Results of Dr. Duncan's Test
Average Weight (gm.)
|
(1) |
(2) |
(3) |
(4) |
|
Plant |
Root |
(2) as % of (1) |
Treatment |
|
35.78 |
11.98 |
33.49 |
Control |
|
36.86 |
13.18 |
35.76 |
Inorganic salts |
|
24.58 |
5.97 |
24.30 |
Organic chemicals |
|
35.54 |
12.42 |
34.93 |
Salts and organics |
APPENDIX 14
552. Concentrations of chloride
and manganese relative to those of N-Ammonia in groundwater under Claimant's
land: 16.05.96
Concentration (micrograms per litre) Ratio of Concentrations
|
N-Ammonia |
Chloride |
Manganese |
Chloride/N-Am |
Manganese/N-Am |
|
|
MAY 1
|
2880 |
410,000 |
960 |
142 |
0.33 |
|
MAY 2
|
< 50 |
66,000 |
50 |
> 1320 |
> 1.0 |
|
MAY 2B
|
< 50 |
28,000 |
100 |
> 560 |
> 2.0 |
|
MAY 3
|
< 50 |
67,000 |
70 |
> 1340 |
> 1.4 |
|
MAY 3B
|
< 50 |
51,000 |
220 |
> 1020 |
> 4.4 |
|
MAY 4
|
< 50 |
74,000 |
60 |
> 1480 |
> 1.2 |
|
MAY 5
|
< 50 |
66,000 |
40 |
> 1320 |
> 0.8 |
553. N-ammonia and N-am mean
nitrogen from the ammonium ion.
554. The sign < means less
than; < 50 means that ammonium was not detected, the minimum detectable concentration
being 50 µg/l.
APPENDIX 15
556. Analyses where ammonium
was detected in groundwater under the claimant's land: Comparative Concentrations
of N-Ammonia, Chloride and Manganese (micrograms per litre)
|
Concentrations (µg/l)
|
Ratio
|
|||||||
|
Date |
Borehole |
N-Am |
Chloride |
Manganese |
Chloride/N-Am |
Manganese/N-Am
|
||
|
15.04.96 |
B |
280 |
44000 |
n.a. |
- |
-
|
||
|
11.06.96 |
MAY 2 |
90 |
68000 |
240 |
756 |
27
|
||
|
07.11.96 |
MAY 2 |
40 |
n.a. |
n.a. |
- |
-
|
||
|
07.11.96 |
MAY 3 |
30 |
n.a |
n.a. |
- |
-
|
||
|
18.09.98 |
MAY 5 |
110 |
n.a |
n.a. |
- |
-
|
||
APPENDIX 16
558. University of Hertfordshire
test: Analyses of other samples of groundwater from the same boreholes sampled
on the same occasion as the samples used in the test
|
Date: May 1996 |
MAY 2 |
MAY 3 |
MAY 5
|
|
Atrazine |
< .020 |
< .020 |
< .020
|
|
Benazolin |
< .020 |
< .020 |
< .020
|
|
Dicamba |
< .020 |
< .020 |
< .020
|
|
Dichlorprop |
< .020 |
< .020 |
< .020
|
|
2,4-D |
< .020 |
< .020 |
< .020
|
|
Ethofumesate) _ no results |
|||
|
Mecoprop )
|
|||
|
MCPA |
0.028 |
0.072 |
< .020
|
|
Simazine |
< .020 |
< .020 |
< .020
|
|
Trietazine |
< .020 |
< .020 |
< .020
|
|
2,3,6-TBA |
< .020 |
< .020 |
< .020
|
|
Hempa* |
93 |
78 |
< 1.0
|
|
Schradan* |
23 |
17 |
< 1.0
|
|
Chloroform |
< 1.0 |
< 1.0 |
< 1.0
|
|
Trichloroethylene |
37 |
11 |
< 0.5
|
|
Tetrachloroethylene |
< 0.2 |
< 0.2 |
< 0.2
|
|
Phenols - no results |
|
||
|
Toluene |
< 3.0 |
< 3.0 |
< 3.0
|
|
Xylenes |
< 9.0 |
< 9.0 |
< 9.0
|
|
Chloride |
66000 |
67000 |
66000
|
|
Manganese |
50 |
70 |
40 |
* 21.06.96
559. The sign < followed by
a figure indicates that the chemical in question, though sought, was not detected,
the figure showing the minimum detection level for that chemical.
APPENDIX 17
(Concentrations in Micrograms per litre)
|
Chemical |
MAY 2 |
MAY 5 |
MAY 5B |
|||
|
S.B. |
E.A. |
S.B. |
E.A. |
S.B. |
E.A.
|
|
|
Toluene |
0.1 |
< 0.05 |
0.1 |
< 0.05 |
0.1 |
< 0.05 |
|
Xylene |
< 0.1 |
< 0.15 |
< 0.1 |
< 0.15 |
< 0.1 |
< 0.15 |
|
2,4,6-TCP |
0.1 |
0.1 |
0.1 |
|
||
|
2-methylnaphthalene |
< 0.1 |
< 0.1 |
1.58 |
< 0.1 |
|
|
|
Hempa |
D |
64.7 |
D |
2.96 |
D |
1.58 |
|
Clopyralid |
< 0.1 |
< 0.1 |
< 0.1 |
|
||
|
Dicamba |
< 0.1 |
< 0.020 |
< 0.1 |
0.1 |
|
|
|
Mecoprop |
0.1 |
< 0.020 |
< 0.1 |
0.3 |
|
|
|
2,3,6-TBA |
0.2 |
< 0.020 |
< 0.1 |
< 0.1 |
|
|
|
MCPA |
0.1 |
0.02 |
< 0.1 |
< 0.3 |
|
|
|
Dichlorprop |
< 0.1 |
< 0.1 |
< 0.1 |
|
||
|
Trifluralin |
< 0.4 |
< 1.2 |
< 1.2 |
|
||
|
2,4-D |
< 0.2 |
< 0.1 |
< 0.2 |
|
||
|
Trietazine |
< 0.1 |
< 0.023 |
< 0.1 |
23.3 |
0.1 |
0.084 |
|
2,4,5-T |
< 0.2 |
0.1 |
0.1 |
|
||
|
Atrazine |
1.3 |
< 0.034 |
0.6 |
0.776 |
1.7 |
0.019 |
|
Simazine |
< 0.1 |
< 0.034 |
< 0.1 |
8.68 |
< 0.1 |
0.099 |
|
Schradan |
D |
2.74 |
D |
4.68 |
D |
< 1 |
|
Terbutryn |
< 0.1 |
< 0.023 |
< 0.1 |
0.429 |
0.1 |
< 0.025 |
|
Benfuresate |
0.1 |
0.1 |
0.2 |
|
||
|
Ethofumesate |
0.3 |
< 0.023 |
0.2 |
16.1 |
0.9 |
0.282 |
|
Benazolin |
2.6 |
< 0.020 |
0.5 |
4.5 |
||
|
Benazolin-ethyl |
0.1 |
< 0.1 |
0.3 |
|||
|
Chloride |
(68,000 - (68,000 |
67,000 64,000 |
42,000 42,000 |
|||
562. The initials S.B. and E.A.
refer to the sources of the analyses.
565. The symbol < followed
by a number means that the chemical, though sought, was not found, the number
indicating the minimum detection level.
APPENDIX 18
566. Concentrations of nitrogen
from ammonium in samples taken at the same time as those used by Mr. Eagle in
his test
|
MAY 2 |
MAY 5 |
MAY 5B |
|
|
N-Ammonia (micrograms per litre) |
< 30 |
110 |
< 30 |
|
18.9.98 |
567. The sign < 30 means that
ammonium was not detected, the minimum detection level being 30 micrograms of
nitrogen per litre.
APPENDIX 19
568. Chloride concentrations
in, and electrical conductivities of, groundwater in boreholes under Packhouse
Field and in borehole BH 16
|
Concentration of Chloride (µg/l) |
|||||||
|
Borehole |
Date |
Conductivity (µs/cm) |
E.A |
S.B. |
|||
|
MAY 2 |
10.06.98 |
1120 |
- |
- |
|||
|
" |
18.09.98 |
1060 |
- |
68,000 |
68,000 |
||
|
" |
17.11.98 |
1120 |
67,000 |
- |
|||
|
MAY 3 |
10.06.98 |
1110 |
- |
- |
|||
|
" |
18.09.98 |
1070 |
- |
- |
|||
|
" |
17.11.98 |
1090 |
68,000 |
- |
|||
|
MAY 5 |
18.09.98 |
1240 |
- |
67,000 |
64,000 |
||
|
MAY 5B |
18.09.98 |
813 |
- |
42,000 |
42,000 |
||
|
BH 16 |
09.06.98 |
7390 |
- |
- |
|||
|
" |
17.09.98 |
7340 |
- |
- |
|||
|
" |
16.11.98 |
6390 |
147,000 |
- |
|||
|
" |
29.03.99 |
8240 |
- |
- |
|||
569. Where chloride and conductivity
are shown for the same date, the readings are taken from different samples of
groundwater taken from the stated borehole, apparently on the stated date.
570. The conductivity is expressed
in microsiemens per centimetre.
APPENDIX 20
573. Concentrations of manganese
in samples of soil and plants: Dr. Ward's study
|
(Micrograms per gram dry weight)
|
|||
|
Location |
Concentration In Soil |
Concentration In Plant |
Species of Plant |
|
A 11 |
629 |
414 |
Plantain |
|
D 1 |
466 |
132 |
Plantain
|
|
B 13 |
1113 |
672 |
Fraise de Bois |
|
B 12 |
909 |
395 |
Fraise de Bois |
|
B 14 |
824 |
493 |
Couch grass |
|
D 2 |
314 |
131 |
Couch grass |
574. In the location column,
the letters A, B and D represent respectively areas A and B and the control
site; the numerals represent different locations in those areas.
© 2000 Crown Copyright