A court in Manchester heard allegations this morning that IGas broke the law at its exploration site at Barton Moss by breaching environmental permitting regulations.
Barrister Richard Brigden said: “There is prima facie evidence of illegality. There was a serious breach of environmental regulations designed to protect human health.”
The details emerged during the latest hearing of a long-running case arising from the protests outside the Barton Moss gas site during early 2014. More than 40 people are accused of offences including obstruction and aggravated trespass. They all deny the charges.
At today’s hearing Mr Brigden, representing some of the protesters, argued that their actions had been justified because of what he described as illegal actions by IGas.
But the prosecuting barrister, Alex Langhorn, told Manchester Magistrates Court there had been no offence. There was no evidence that drilling the exploratory borehole at Barton Moss had caused any damage, he said, and the construction of the site had been entirely lawful.
District Judge, James Prowse, is expected to rule tomorrow (Tuesday) on whether he accepts the defence argument. If he decides in the defence’s favour, the case will collapse. If he does not, there are likely to be more legal arguments and a lengthy trial.
The defence argued there were three ways in which IGas had acted illegally. The first concerned mud cleared from the site. Mr Brigden said there should have been an environmental permit, issued by the Environment Agency, to deal with this.
He said it was uncertain whether the mud had been extracted before or after 1st October 2013, when the permitting regulations changed.
If the work predated the change it should have had a permit unless it was certain that the mud would be reused. Mr Brigden said the Environment Agency’s expert, Sarah Scott, had said it would “possibly” be reused.
If the mud had been extracted after the regulations changed, there should have been a permit under the Mining Waste Directive, he said.
“There should have been a permit and any failure to do so would have been a breach of the environmental permit regulations. Irrespective of whether it was pre or post, there was an absolute obligation for there to be a permit.”
“There is prima facie evidence of a breach of environmental permit regulations”.
The second argument concerned levels of cadmium at the site. A report by the defence expert witness, Dr Aidan Foley, found levels in groundwater were four times higher downstream of the site than upstream. Mr Brigden said cadmium exceeded permitted levels in the Generic Assessment Criteria for human health.
He said there was no suggestion that IGas had put heavy metals into the ground. But Dr Foley and Miss Scott disagreed about what had caused the high levels. Dr Foley thought the most likely explanation was disturbance of the site during construction. He said if heavy metals had been mobilised by the site work they would be more soluble in water and have more chance to entering the water table.
Mr Brigden said there was uncertainty about groundwater activity at the site. But he said discharging into groundwater without a permit was an offence. “There is prima facie evidence that they discharged water with noxious substances” and a permit should have been obtained, he said.
The third argument concerned the presence of polycyclic aromatic hydrocarbons (PAHs). These are found in hydrocarbons and have been linked to adverse health effects, including cancer.
The two experts again disagreed about the cause, Mr Brigden said. The defence’s Dr Foley favoured the explanation that site activity had mobilised the contaminants.
“There were high readings of cadmium in the water and high readings of PAHs but it did not seem anyone, either in the Environment Agency or the gas company, did anything to mitigate these pretty unpleasant compounds. We have heard nothing of safeguarding”, Mr Brigden said.
Summing up, Mr Brigden said: “This is prima facie serious criminality. This is a multi-million pound drilling company that should have known better. If convicted of this offence they could face five years in prison and a £4m fine.”
On the lack of permitting, he asked “How did this not come to the Environment Agency’s attention?
He criticised the lack of baseline measurements at Barton Moss and said it was up to the prosecution to prove that activity at the site had been legal.
The prosecution’s Alex Langhorn said the experts had agreed there was no evidence that drilling at Barton Moss had caused any damage. Construction of the site had been entirely lawful, he said.
On the lack of environmental permits, he said:
“You can be assured that a prosecution against IGas would fail because the EA have made it perfectly clear that they do not consider it a breach.”
On the high cadmium levels he said:
“The defence do not say that IGas put these heavy metals in the water. They say this is a breach of the regulations. But if IGas did not put it into the water there has been no discharge.”
Mr Langhorn said the cadmium probably came from historic dumping on the site. There was no evidence that anything done by IGas had caused the high levels.
“The obvious inference to be made from the evidence before this court is that this is naturally-occurring cadmium that is nothing whatsoever to do with activities of the occupier of the site. There is no evidence it was caused by IGas.”
He said Dr Foley’s explanation of the inflated cadmium levels was speculation. There was also no evidence, he said, that site construction had caused the high levels of PAHs.
The two barristers disagreed about the intention and timing of the protest. Mr Langhorn said the protesters opposed the drilling at Barton Moss but there was no evidence that this had caused damage. Mr Brigden said the protest was about activity on the site, not drilling per se and some protesters had been arrested before drilling started.
Updated at 22.05 to correct date of expected decision by the district judge. The decision is expected tomorrow (Tuesday 8th September 2015)
If two experts disagree it is not prima facie evidence. It is just opinion.