It is reported that "contaminated water containing a high amount of cow slurry was spread as fertiliser into a field". The quantity spread “was many more times than the field could absorb” which led to the contaminated water running off into ditches and land drains, which subsequently flowed into the stream.
It is set out in the Regulator’s Code, that a regulator should “provide advice and guidance that is focussed on assisting those they regulate to understand and meet their responsibilities”. It is reported in this case that the EA had been in regular contact with the college for five years prior to the incident due to concerns about non-compliances. This highlights that communication with the EA is key. If you are concerned about potential or actual non-compliance(s), communication with the EA to obtain guidance and advice can, in some circumstances, avoid enforcement action.
One of the key issues in this case was poor management; the employee who carried out the work on behalf of the college received a formal caution for his involvement in the commission of the offence. It is possible that an employee could be individually prosecuted for their actions in causing an incident such as this. Furthermore, offences committed by employees can lead to the management of the institution or business being prosecuted if it is found, during the course of the investigation, that there has been some consent, connivance or neglect which has led to the commission of the offence. Management procedures are vital to ensure that employees are prevented from acting in a way that could lead to an offence being committed. In this regard training on the appropriate procedures is vital.
It was a criticism of the college that it did not have in place any contingency plan or emergency procedures for such an incident occurring. Furthermore, it did not report the incident to the EA; this was done by a member of the public. Had there been a plan in place for such an event, it could have mitigated the harm that was caused to the environment and as such, the ultimate fine that was imposed upon the college.
Inadequate infrastructure was also blamed for the incident occurring. Whilst budgets may be stretched and limitations on spending exist, institutions must ensure that they are fit for purpose and systems are in place to prevent pollution occurring.
The message from the EA to those in the farming industry was to ensure that “they think about the actions they take when managing highly polluting fluids”. In general terms, the EA’s advice is to “ensure that you are compliant with codes of practice, take time to review your procedures”. Whether you are in the farming industry or not, you should ensure that you are compliant with the relevant codes of practice and operating procedures.
This case was serious, categorised at the highest level by the EA. However, even in such cases that are not so serious, an investigation may result in a lesser sanction such as a caution or formal warning. In some cases where the offender acts quickly and takes the initiative, it may be possible to resolve the matter by agreeing to a civil sanction such as an enforcement undertaking; this avoids a conviction but can still be costly.
The message is:
- plan: ensure that work activities are planned appropriately and in accordance with any relevant permits, deployments or exemptions
- check: whether there are the right conditions and infrastructure for the work to be undertaken
- manage: ensure that all those involved in the work activity know what the process is and any limitations
- communicate: with each other and if necessary the EA
- advice: obtain advice where needed from the EA or from an independent advisor
- act: if you consider a breach has or might have occurred, seek advice immediately!
If you would like further information please do not hesitate to contact Philippa Dyer or another member of Birketts' Environmental Team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2020.