Smoke on the water

A recent discharge of diesel fuel into the River Chelmer has highlighted an area of pollution which is becoming a growing concern, leading to an increase of prosecutions and fines.

According to Birkett Long environmental law specialist David Rayner, it is likely that the incident has been caused by a release of polluting matter into the river or a breach of an existing discharge consent.

He said: “Without discussing the particulars of the incident, it is an offence to cause or knowingly permit the discharge of poisonous, noxious or polluting matter into water. 

“It is very important to note that the offence of ‘causing’ water pollution is one of strict liability - so there is no need to prove knowledge, fault or even negligence.  All that is needed is a causal link between the activity being carried out and the pollution.”

David explained that the leading case in this area is that of Empress Cars, where a car sales company stored red diesel fuel in a storage tank on its site.  “The tank was protected by a bund, which is a barrier around the tank to contain spillages,” he added.

“However, a rubber hose ran from the tank to a smaller drum which stood outside the bund.  One night, a trespasser broke into the site and opened the valve on the tank which resulted in the diesel flowing into the drum.  This then overflowed and into a surface water drain from where it polluted nearby waters.” 

The House of Lords decided that the company was liable for the pollution. It ruled that the behaviour of the trespasser was not sufficient to break the chain of causation between the company’s activity at the site and the pollution of the water. 

David added: “It would take an extraordinary or abnormal event – perhaps something like a terrorist bomb - to break the chain of causation.  It would now seem to be very difficult for a defendant to show that such an extraordinary event has occurred.”

In another case, Environment Agency v Brock Plc, the failure of a hose valve during a pumping operation caused contaminants to spray into nearby ditchwater.  There was no evidence that the company had been negligent in maintaining its equipment but nonetheless it was convicted - even though the immediate cause of the pollution was defective equipment. 

In addition, in Express Dairies Distribution v Environment Agency, the Court found that the defendant would not be absolved in a case where a pollution incident had been caused by a tyre ‘blow out’.  The blow out damaged a milk tanker, with the spilt milk subsequently polluting surface waters.

David added: “There are, however, some defences to any action taken in respect of a pollution incident.  Perhaps the most commonly used is when the defendant can show that the activities were undertaken in an emergency to avoid harm to human health. They need to prove that they took all reasonably practicable steps to minimise the pollution and that they provided particulars to the Environment Agency as soon as reasonably practicable after the incident occurred.”

Because many environmental offences are based on strict liability, a business or its director may be subject to imprisonment or an unlimited fine if an offence is committed.  This remains the case even if they lack the knowledge, intent or recklessness that would normally be associated with traditional criminal offences. 

David said: “The other side of the coin, however, is that judges have been reluctant to sentence individuals to long – or, in most cases, any – imprisonment and have also tended not to impose substantial fines. 

“However, that is now changing, and the Environment Agency is certainly pressing for more prosecutions to take place and for larger fines to be imposed.  In the year 2010, an average fine for a first offence, with good mitigation, was generally between £3,000 and £20,000 plus costs. 

“Of course, it is important to remember that in many pollution incidents the size of the fine is dwarfed by the ‘clean up’ costs.  Environmental legislation is based on the principle that ‘the polluter pays’ and many people who are familiar with the diesel fuel pollution of the River Chelmer will recall the Buncefield Oil Terminal explosion in 2005. 

“That explosion was caused when petrol being pumped into a storage tank overflowed and spilled over the top of a bund.  The petrol exploded and a vapour cloud was released. The total fines of the various companies involved in that incident came to about £9 million plus costs.  It is believed that the oil company involved in the Buncefield explosion faced an estimated £750 million in claims for civil damages.”

Companies and individuals who run businesses involving substances that could pollute or contaminate water or land need to take considerable care to ensure that this does not occur.  If it does, they are likely to find themselves strictly liable for any damage caused or the costs of clean up that are incurred. 

“It will be interesting to see what the final outcome of the pollution of the Chelmer is,” said David.