Environmental news update - 23 September

Welcome to the latest edition of our weekly Environment Law news update. As ever, we bring you developments, insights, and analysis in the world of environmental law.

NEWS ROUND UP

New water bill to hold CEOs accountable for environmental failures

In a significant move to address the pollution of rivers lakes and seas across England and Wales the UK government has introduced the Water (Special) Measures Bill. The legislation set to dramatically increase enforcement powers against water companies and their executives forms a central pillar of the government’s wider efforts to overhaul the water industry and curb environmental damage caused by sewage dumping.

The bill introduces the following new key measures:

• Tougher Penalties and Criminal Charges for Water: A key provision includes the potential for water company executives to face imprisonment of up to 2 years if they are found guilty of covering up incidents of sewage dumping. Currently CEOs of water companies can face fines failing to comply with investigations by the EA and the Drinking Water Inspectorate, but criminal prosecutions have so far been rare. Water companies will also be forced to cover the costs of investigations by the EA and the DWI helping these regulators fund enforcement action;
• Stricter compliance requirements and financial penalties: The bill aims to ensure that water companies quickly hand over critical sewage data imposing severe fines for delays or failures in transparency. New provisions will make it easier for the EA to issue Fixed Monetary Penalties lowering the standard of proof required for enforcement and enabling quicker penalties for pollution offences, failure to report spills or non-compliance with water resource regulations. For the first time water companies will be required to publish real-time data on sewage overflows within an hour of discharge making this information publicly available.
• Banning bonuses for failing Executives: This is another major change that will prevent water company executives from receiving performance bonuses if their companies fail to meet environmental or customer standards. This move comes after high-profile controversies including the case of Severn Trent Water’s CEO Liv Garfield who took a £584,000 bonus despite her company being fined £2 million for sewage dumping. Ofwat (the water regulator) will now have the authority to ban bonuses for CEOs whose companies underperform, fail to meet environmental standards or are not financially resilient.

Whilst the UK government has hailed the new Bill as a transformative step in cleaning up the water sector campaigners argue that more fundamental changes are still needed. Notably Fergal Sharkey, a prominent sewage campaigner has voiced concerns that the measures do not go far enough to protect waterways and ensure clean rivers across the UK. Sharkey and other campaigners continue to call for deeper reforms and greater investment in the nation’s water infrastructure. 

The Water (Special Measures) Bill represents a step in the UK government’s bid to tackle the environmental harm caused by water companies. By increasing penalties, enhancing transparency and holding water company executives accountable the Bill marks a shift in the regulation of the water sector. Given the urgency of the issues surrounding water pollution and sewage dumping the government is pushing for swift legislative action to address public concerns and environmental damage. However, the success of these reforms will depend on the continued enforcement and the UK government’s ability to drive further transformation in the industry.

Case against EA’s handling of sewage sludge dismissed 

The Environment Agency (“EA”) was accused of not testing sewage sludge for microplastic and forever chemicals before using it on farmland. 

The EA requires sludge producers to maintain detailed records, provide access to these records, and conduct and report on specific tests of both sludge and soil to ensure compliance with environmental standards. The Agency’s requirement to test sludge is primarily governed by the Sludge (Use in Agriculture) Regulations 1989 (SI 1989/1263). It oversees the use of sludge, which is sold to farmers by water companies as an organic fertilizer. This sludge consists of processed sewage solids, industrial effluent, and surface water run-off, produced as a by-product of wastewater treatment. According to Water UK, 87% of sludge in the UK is recycled onto agricultural land.

In 2020, the EA released a Strategy for Safe and Sustainable Sludge Use, stating that ignoring the presence of harmful persistent organic pollutants like dioxins and polycyclic aromatic hydrocarbons was not an option. The strategy promised new regulations by mid-2023 to include sludge testing under the Environmental Permitting Regime. However, the deadline was removed in August 2023.

The environmental group Fighting Dirty, led by George Monbiot, brought a judicial review against the EA and argued that the removal of the deadline without providing a new one for regulating sludge was effectively a “do-nothing” stance. They claimed the EA failed to consider mandatory relevant factors, they did not make sufficient inquiries, and that this decision was irrational. However, the judge dismissed the case, stating that the power to enact the regulations lies with DEFRA, not the EA. The judge noted that the EA had asked DEFRA for guidance and was told not to set a new target date, which was deemed reasonable to maintain a good working relationship.

Monbiot criticized the decision, calling it a “Catch-22 situation”, where government inaction excuses further inaction. He urged the Labour party to take decisive action. Georgia Elliott-Smith from Fighting Dirty highlighted the EA’s difficult position, where they were prepared to advance regulations but were hindered by political delays, providing a further “free pass” for water companies’ polluting. The group called on the environment secretary to empower the EA to implement necessary actions. A farmer and the chief executive of the Nature Friendly Farming Network expressed concerns about slow build-up of toxicity in the system, particularly the increasing issue of PFAS-contaminated sludge. He said that tighter regulation would be welcome. 

DEFRA stated it is working closely with the EA to assess the current legal framework. They are aware of the importance of the safe use of sludge in agriculture.

£18,465 to pay for failing to clear 4,000 tonnes of waste 

In 2022, B46 Properties Limited bought Brickyard Farm in Fradley, Staffordshire where they were operating as a waste company. On the site, they stored waste, such as bricks, trommel fines, wood, construction and green waste. After failing to reverse the revocation of its environmental permit, B46 Properties Limited was liquidated and the landowner, which was a property company (the “Property Company”) became responsible for clearing the waste. For failing to comply, the Property Company received a warning, followed by a notice from the Environmental Agency (EA) in June 2023, requiring that the waste is removed by December that year. A substantial amount of waste remained, which was contrary to section 59ZC (4) and section 59 (ZB((6) of the Environmental Protection Act 1990. These sections state that the owner must comply with such requirements. 

At a hearing on 3 September 2024 at Cannock Magistrates Court, the Property Company pleaded guilty. The Property Company director argued that they were working within their budget. The EA provided they take these legal requirements seriously and warned that they will pursue any company that fails to uphold the law or protect nature, pressing the strongest possible penalties. Their officer for this case stated that the site in question posed a significant environmental threat due to the high risk of fire and potentially significant impact to local communities and amenities. 

The court imposed a fine of £806, a victim surcharge of £322 and awarded £17,337 in costs of to the EA. Separately, the charge against the director of the Property Company was dropped. 

Adhering to waste disposal legislation plays a key role in initiatives by governments, businesses and individuals to achieve net zero carbon emissions by 2050 and prevent pollution.

Campaigners publish report showing sewage pollution in Lake Windermere and threaten legal action

Campaign groups WildFish and Save Windermere have reported that evidence they have collated, with Dr Nick Everall, shows a deterioration in the water quality and ecological health of Cunsey Beck, which feeds into Lake Windermere, since the last River Basin Management Plan was produced. They also say that there is evidence of a “general decline in the ecological health of the beck with biodiversity taxonomic richness and abundance appearance worse than in 2006”. 

WildFish have said the report shows that the beck has deteriorated over time “and that this can be linked to sewage”. The report says: “Given that SmartRivers spatial data highlights that the worst impacts are detected downstream of the Near Sawrey WwTW, this suggests that sewage is contributing to the deterioration of Cunsey Beck and urgent action is needed to address these concerns.”

Wildfish have written to the EA and included a copy of the above report, notifying them of environmental damage that has been caused under the Environmental Damage Regulations 2015. These regulations place a legal duty for regulators to be immediately notified of environmental damage and for remedial action to be taken. It is therefore now anticipated United Utilities will be ordered to take action to prevent and remediate the damage. 

WildFish have published on their website they are “beginning the legal process to make the regulator do its job to stop the pollution”. Their solicitor went on to say “We expect the EA to take this seriously and begin to force the water company to sort out the problem without delay”. 

RWM/ ESS Expo Roundup

Last week saw the annual evet of the waste management and environmental services sector at the NEC. This is a must attend event for the planning and environmental team at Irwin Mitchell.  This year was very diverse both in terms of the attendees, but also the talks on offer.  There was a number of talks (including ours) on PFAS and the re-use of material, but what was good to see were the discussions regarding biodiversity net gain and brining nature positivity to the heart of the entire sector and the decisions we make.

We were delighted to be joined by a work experience student and an aspiring ecologist – this was another key theme as to how the sector brings the younger generation through to plug the skills gap.  Emily’s report is below.

This week I got the chance to attend the Environmental Services and Solutions Expo at the NEC with the Irwin Mitchel team. Having just graduated from the University of Leeds with a real passion for ecology, walking into the hall it was great to see so many exhibitors and the diversity of businesses operating in sectors ranging from water to waste management, all with the shared vision of a greener future. After talking to different exhibitors and receiving great advice and guidance, it was clear that often those working in the sector come to find themselves in roles and projects that they never could have imagined when starting out. As I am currently entering into the sector, this filled me with excitement and wonder about where I will find myself in 10 years time and what innovating projects I will be lucky enough to be part of. 

Throughout the expo, I was lucky to attend some fascinating talks and panels that gave me insight into business, government and activist’s perspectives as well as their action plans and hopes for the future. The first panel I watched focused on the transition to achieving the governments ‘net zero by 2050’ goal and spoke about how currently the biggest barrier we face is having people with the necessary skills and capabilities to get there. It is great to see that organisations like IEMA are working to put infrastructure in place - such as their green career centre - to aid people like me entering the sector. They are also working to engage young people in the sector, equipping them with sustainability skills by introducing sustainability focused extended projects in schools - something I know I would have loved. Another panel I found particularly interesting delved into Biodiversity Net Gain and reviewed its use in its formative six months. Despite some teething problems, the initiative is creating a cultural change in the planning and development process bringing biodiversity to the forefront of the conversation. It was also exciting to see that we are currently only touching the surface of the great applications of the biodiversity unit market. During the panel it was again made clear that there is a need for the development of more ecologists, as well as training for local planning authorities and lawyers, something Irwin Mitchel has worked hard to fulfil.

Leaving the Expo I felt inspired and motivated knowing that the environmental services sector is working incredibly hard in a multitude of ways to transition to a more sustainable and green future, and that people like me are needed and wanted to help drive the sector forwards. A big thank you to the lovely Irwin Mitchel team for making it possible for me to attend this fascinating event.