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Thames Water fined for “entirely foreseeable” pollution
On 18 January 2021, almost a year to the day from its launch, the Joint Unit for Waste Crime reported that it had “wasted no time in sharing intelligence, identifying illegal activity and conducting numerous operations to disrupt illegal activities, leading to arrests of suspected waste criminals and bringing them to justice”. With the stated intention to enter 2021 “stronger and more determined than ever to tackle those engaged in serious and organised waste crime”, our prediction that interventions and enforcement action increasing in this area is likely to become a reality.
On 25 January 2021 Mr Stephen Lack, trading as Abbey Skips, was sentenced to 18 months’ imprisonment following a guilty plea to breaching environmental regulations pertaining to the depositing, treatment and storage of waste contrary to Regulations 12 and 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2016. Mr Lack had repeatedly stockpiled and burned waste without the necessary Environment Agency permits in offending which spanned a decade. Following court enforcement in April 2019 in which he was handed a 6 months suspended sentence, he was arrested within a month for further illegal activities. After being released on bail, he was again arrested in September 2020 for further illegal burning and burial of waste. In addition to the custodial sentence, Mr Lack was given a remediation order to clear the land where the offence took place by January 2022, which the Environment Agency estimate could cost £750,000, and ordered to pay costs of £12,500.
On 26 February 2021 Thames Water was sentenced to a fine of £2.3m and ordered to pay costs of almost £90,000. The fine relates to the leakage of untreated sewage into a stream which led to the River Thames between 21 and 24 April 2016. This caused significant environmental damage killing 1,144 fish and other water life. This sentence followed earlier fines for Thames Water of £1.8m in 2019 for sewage pollution in the Cotswolds and a record breaking £20m in 2017 for six separate water pollution incidents resulting in the spillage of 1.9bn litres of untreated sewage into the Thames. See our article for LexisNexis here.
On 3 March 2021 four high street brands, Zara Home, Bershka, Pull & Bear and Massimo Dutti, all owned by the same Spanish parent company, Inditex S.A., agreed to enforcement undertakings (an enforceable promise to do agreed actions) with the Environment Agency after failing to meet their obligations as ‘Packaging Producers’ for a number of years. As companies handling 50 tonnes of packaging a year, with a turnover of over £2 million, they are defined as ‘obligated’ packaging producers and are therefore required to register with the Environment Agency or a packaging compliance scheme. They are also required to meet their responsibilities for recycling of waste packaging each year. As part of the enforcement undertakings the companies were required to put in place additional compliance measures, make contributions of £26,000 to two environmental charities and pay the Environment Agency’s costs.
In advance of the Ivory Act 2018 coming into force, on 9 March 2021 the Department for Environmental Food & Rural Affairs launched an eight-week consultation on its proposed implementation. When it commences, the Act will introduce a near total ban on dealing in ivory (which includes buying, selling, offering to arrange to buy or sell, keeping it for sale or hire, exporting it from the UK for sale or hire or importing it into the UK for sale or hire). It will be an offence under s.12 of the Act, punishable of up to five years’ imprisonment, to breach the prohibition or cause or facilitate the prohibition to be breached, where you know or suspect (or ought to know or suspect) that an item is, ivory, is made of ivory or has ivory in it.
Within the current draft of the Environment Bill (which is currently at the report stage) there is a duty, at s.16, for the Secretary of State to prepare a ‘policy statement on environmental principles’ which, under s.18, Ministers to have due regard to when making policy. On 10 March 2021 the Department for Environmental Food & Rural Affairs opened a consultation on the current draft statement. The statement is required to include the following five key environmental principles: the ‘integration principle’ (embedding environmental protection in fields of policy which have an impact on the environment; the ‘prevention principle’ (prevent, reduce or mitigate harm); the ‘rectification at source principle’ (tackling environmental at its origin where it cannot be prevented); the ‘polluter pays principle’ (mitigation and compensation the responsibility of those who cause pollution or damage the environment); and the ‘precautionary principle’ (the inability to rely on scientific uncertainty as a reason for delaying cost-effective measures to prevent environmental degradation where there is a threat of serious/irreversible environmental damage).
On 29 March 2021 the government confirmed it would introduce new laws to reduce the sewage discharges from storm overflows, which act to prevent sewers becoming overloaded during wet weather and release diluted waste water into waterways. The new legal duties will require the government to publish a plan by September 2022 to reduce sewage discharges from storm overflows and to report to Parliament on progress implementing the plan. Water companies will also be required to publish data annually on storm overflow operation.
This announcement was followed by the publication of data by the Department for Environmental Food & Rural Affairs on 30 March 2021 which showed an increase in the frequency and duration of waste water discharges from storm overflows. The data collated from monitored storm overflows across the UK showed there were 403,171 incidents of sewage discharge into waterways in 2020, a 37% increase from 2019, and for a total duration of 3.1 million hours. This increase is in part due to an increase in the number of storm overflows which are monitored by the Environment Agency, up to 12,092 in 2020 from 8,276 in 2019.
On 4 March 2021 the Court of Justice of the European Union ruled that the UK has “systematically and persistently” exceeded legal limits on dangerous nitrogen dioxide across 16 urban areas in the UK since 2010. The CJEU further held that the UK had failed to adopt appropriate measures to ensure compliance with strict limits for nitrogen dioxide and failed in its legal obligations to implement plans to tackle this problem in the shortest possible time. This ruling came after an infringement procedure was initiated by the European Commission in 2014 in respect of the UK’s failure to implement the EU Directive on ambient air quality and cleaner air for Europe.
This ruling follows the findings of an inquest into the tragic death of nine-year old Ella Kissi-Debrah from Lewisham, London, in 2013 in which the Coroner concluded that she had “died of asthma contributed to by exposure to excessive air pollution”. These Coroner’s findings, delivered on 16 December 2020, became the first in the UK in which air pollution exposure has been listed as a medical cause of death. It was held that between 2010 and 2013, during which time Ella’s asthma was exacerbated, there was a recognised failure to reduce nitrogen dioxide levels to within the limits set by EU and domestic law which possibly contributed to her death.
For further information on the issues raised in this blog post, please contact a member of our Health, Safety & Environment team.
Sophie Wood is a Senior Associate in the Criminal Litigation team with extensive experience in advising corporate and individual clients involved in a wide range of internal, criminal and regulatory investigations. Sophie has acted for individuals and companies involved in investigations brought by the Environment Agency, Health and Safety Executive and local authorities, and is a member of the firm’s cross-practice Health, Safety and Environment Group.
Charlie Roe is a trainee solicitor currently in the Criminal Litigation team. Charlie joined Kingsley Napley in September 2019 as a trainee. Prior to joining Kingsley Napley, Charlie worked at a leading London litigation firm as a paralegal in their Personal Injury and Employment departments. Charlie read History and Politics at Newcastle University. After working in the charity sector he completed the Graduate Diploma in Law and Legal Practice Course at the University of Law, Moorgate.
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