Before their introduction, fines were often in the order of six figures or less for causing pollution of water courses. However, in January 2016, Thames Water was fined £1 million for polluting a canal and this fine itself was dwarfed by the combined fine of £19.75 million imposed again on Thames Water for a number of related pollution offences of the River Thames.
The size of the fines is intended to not only make Senior Management and Directors take ownership of their environmental responsibilities, but also to send a definitive message to shareholders.
These offences are ‘strict liability,’ as fault is not required to be proven. However, in mitigation fines can be reduced if it can be shown that sufficient forward planning was in place to reduce the impact of such an event occurring and that there is clear evidence at Board Level to drive environmental compliance. In effect, Water Companies and their shareholders need to take a more proactive approach to prevent pollution.
The consequence of which, is that there is now an even stronger emphasis on seeking a defence, that an incident can be attributed to the activities of a third party. This view has been extended to the teams within Water Companies who issue Trade Effluent Consents and monitor its quality. There is now a more robust approach to enforcement being taken against companies who breach the conditions of their Trade Effluent Consents, as this evidence is very useful mitigation for pollution offences.
The food sector is particularly vulnerable when it comes to being implicated for pollution events associated with sewer blockages and spills to water courses. From an industry perspective the materials that pose the greatest risk are fats, oils and grease (FOG), solids and blood. All these materials can cause sewer blockages and are readily visible if discharged outside the limits set in a Trade Effluent Consent.
So as part of a company’s due diligence, it is important to ensure that all the trade effluent is adequately treated to meet the limits set in an associated Consent, at all times and that the onsite drainage system is safeguarded from spillages reaching the public sewers.
As mentioned earlier, the level of ‘goodwill’ that can be relied on from Water Companies if any site has discharged effluent over and above its consent limits is now likely to be very limited. There is a remit to adopt a more rigid approach with offenders, with the emphasis being on enforcement action by way of formal warning letters, cautions and prosecutions being the norm.
The message is for the food industry to seek a more proactive approach to consent compliance and onsite pollution prevention measures. The adoption of seeking expert independent advice to review a site’s working practices is essential and is a strong defence when presented as part of mitigation to any formal proceedings by a Water Company.
For more information about this article please contact Ian Micklewright.