Non-deliberate discharges to surface water or groundwater are sadly commonplace and some can be potentially destructive to the aquatic environment. This includes the recent sodium cyanide canal spill, although the impact of this one may still be relatively localised and transient.
The company responsible operates a Part A(1)(a) installation permitted by the Environment Agency. The site will have been regulated and inspected by the Agency on a regular basis and, as far as I can tell, there is nothing to suggest this company has been in breach of its permit or any previous issues with the local community concerning odour or emissions.
The company will no doubt be facing a full-blown investigation as a result of this incident, with its directors and senior management under enormous pressure whilst they deal with the aftermath and fall out.
The company alerted both the Environment Agency and Severn Trent Water as soon as it became aware of the spill and appears to have acted without delay in a responsible manner.
Whilst there are calls from wildlife and conservationists for the full weight of the law to be brought down upon the company responsible for the spill, there is probably more to this than meets the eye and knee-jerk responses are unhelpful.
A closer look at the spill
Based on reports in the press, we do not yet know the actual cause – just the provenance and effect. The matter is still under investigation.
Whatever the cause – be it inadequate monitoring, permit breach, containment failure or some other catastrophic unforeseen event – the true picture will out eventually. The company and its directors and senior management will only be prosecuted if any non-compliance is uncovered that is significant enough to justify a prosecution.
In situations such as these, the immediate priority will be to alert the authorities, deal with the cause of the spill and take steps to minimise the impact. It would seem, based on the press reports and press releases, that these steps are being taken.
I have dealt with many similar situations all involving localised water pollution and fish kill linked to leaks from permitted facilities as well as other commercial premises. Not all cases end up being prosecuted or convicted. A hefty fine is not inevitable either. In one fish kill case I dealt with the defendant company received a conditional discharge!
Investigation – interview under caution
As part of the investigation, the company will be invited to an interview under caution. Each case turns on its own facts and advice needs to be tailored accordingly. Generally speaking, in the case of a permit holder, I would not recommend the company exercises its right to silence but provides a full account of what happened. This account might demonstrate the permit conditions were complied with, how the event occurred (perhaps something unprecedented or not reasonably foreseeable) and what measures are now in place or will be put in place to prevent a reoccurrence.
Legal recourse to the offence
If a prosecution were to be brought in the Walsall case the likely outcome will be a fine imposed on the company. This case does not strike me, at least not at first blush, as a case where the directors and senior management would be prosecuted for consenting, conniving or neglect in the offending of the company.
If appropriate, an Enforcement undertaking could be offered under the Agency’s civil sanctions scheme. This would mean the company provides undertakings as to future compliance, pays for the clean-up and restoration of the affected areas, and makes a donation to an environmental charity, whilst also agreeing to pay the Agency’s investigation costs. If the offer is accepted then this avoids prosecution.
Should the company be prosecuted and assuming either a guilty plea or verdict, a purely financial penalty will be imposed. A number of factors will be taken into account, such as the culpability of the company and the harm caused.
Assuming the turnover of the company is between £2m and £10m and the offending is ‘bracketed’ as culpability ‘Negligent’, ‘Category 2’ harm the range of fines will be £6,000 – £55,000 with a starting point of £13,000. A prompt plea of guilt will entitle the defendant company to a 30% discount on the fine assessed by the Court in the first instance.
The ultimate level of penalty (i.e. up or down the range), will be dependent on any aggravating or mitigating factors as well as the basis of sentencing and bracketing of the offending based on the Court’s findings as to culpability and categorisation of harm.
For further information or guidance on non-deliberate discharges to surface water or groundwater, please contact John Dyne today.