WATER POLLUTION

Despite being only four months into 1998(at the time of writing) this is proving to be asignificant year in relation to water pollutionprosecutions and judicial consideration ofwords within s. 85 of the Water ResourcesAct 1991 (the Act).

The recent House of Lords judgment inEmpress Car Co. (Abertillery) Ltd v NationalRivers Authority [1998] 1 All ER 481 saw theirLordships once again considering the strictliability ``causing'' offence in s. 85(1)(a) ofthe Act. The implications of the judgmentwould appear to be crucially significant forbusinesses as their Lordships appear toredefine the limits relating to liability for thisoffence.

In this case (page numbers cited belowrelate to House of Lords report above) theappellants Empress Car Co. (Empress Ltd)kept a diesel tank in a yard on its businesspremises which drained into the River EbbwFach. The tank itself was bunded (a protectingwall) to contain any spillage, yet Empress Ltdoverrode this by fixing an extension pipe tothe outlet of the tank in order to connect it toa smaller drum which stood outside theprotective bund.

The outlet from the tank was governed by atap which had no lock. An unknown thirdparty opened the tap so that the entirecontents of the tank flowed into the drum,overflowed into the yard and passed down astorm drain into the river. At first instanceEmpress Ltd was convicted of causing pollut-ing matter to enter controlled waters contraryto s. 85(1)(a) of the Act. The case went throughtwo appeals (Crown Court and DivisionalCourt), with both courts rejecting relevantsubmissions of the appellant.

The Crown Court (inter alia) found therewas a history of local opposition to EmpressLtd's business. As Lord Hoffmann (who gavethe leading judgment in the House of Lords)stated:

``The tap may have been turned on by amalicious intruder, an aggrieved visitoror an upset local person. The incidentcoincided with a public enquiry about a

disputed footpath being held thefollowing day.''

Whether it was an employee or a stranger(p. 484) the Crown Court held that it did notmatter as Empress Ltd had caused thepollution. Inadequate arrangements existedfor withdrawal of diesel oil from the tank.This, in addition to the inadequacy of thebund and the inability of the tap to be lockedmeant inter alia that Empress Ltd should haveforeseen interference with its plant andequipment as an ever-present possibility.The inadequate bunding and failure to put alock on the tap was a significant cause of theescape, even if the major cause was the thirdparty interference.

The company appealed to the DivisionalCourt by way of case stated, saying that ifevidence was consistent with the tank beingopened by a stranger it should have beenacquitted (p. 484). Once again the appealwas dismissed, with Schiemann LJ followingthe discussions of the Court of Appeal in R vCPC (UK) Ltd [1994] citation. Nevertheless,the court acknowledged an alternative line ofcases which were difficult to reconcile withCPC (UK) Ltd, and Empress Ltd subsequentlyappealed to the House of Lords on a point ofgeneral public importance:

``Whether a person can be convicted ofan offence under s. 85(1) . . . if it isproved that:(a) he held the polluting matter andcontained it in such a way as it wouldnot escape but for a positive act byhimself or another; and(b) he failed to take reasonable precau-tions to prevent such an escape occur-ring as a result of action by a thirdparty;and it is not proved that he took anyother actions which resulted in thepollution.'' (p. 484)

The leading judgment was given by LordHoffmann who considered there to be twoissues in the case: whether there had been a``positive act'' by Empress Ltd (and what thecompany needed to do to cause pollution),and whether what Empress Ltd did ``caused''the diesel oil to enter the river.

Copyright # 1999 John Wiley & Sons, Ltd. 17

Util. Law Rev., 10(1) Jan±Feb 1999 Case Note

With reference to the first issue, LordHoffmann first differentiated between causingand knowingly permitting, by reference toLord Wilberforce's judgment in Alphacell vWoodward [1972] 2 All ER 475. Causinginvolved ``some active operation or chain ofoperations involving as a result the pollutionof the stream''. Thus, in Lord Hoffmann'sown words the defendant ``must have donesomething'' (p. 485).

Having defined ``causing'', the next pointwas, what must be done? Two importantcases were discussed:

. Price v Cromack [1975] 2 All ER 113 wherethe action of gravity resulting in the escapeof effluent from a leaking lagoon into ariver did not involve any act of thedefendant; and

. Wychavon District Council v NRA [1993] 2All ER 440 in which a blocked sewer led toan overflow via a stormwater drainagesystem into the River Avon. This was heldby the Divisional Court not to satisfy the``causing'' offence outlined in Price becausethe council had not done a ``positive act''which caused pollution.

These cases answer the question of whatmust be done to cause pollution restrictively.Indeed, too restrictively because, as LordHoffmann stated ``They seem to require thathis positive act be the immediate cause''(p. 485). The Act does not require this; itrequires only ``a finding that something theDefendant did caused the pollution'' (p. 485).

This is a broader interpretation (indeed,Lord Hoffmann in his analysis of both Priceand Wychavon said that, respectively; main-taining lagoons or operating a sewage systemis ``doing something''). Applying that reason-ing (and subject to necessary causation)maintaining a diesel tank, as the appellantsdid, was ``doing something''.

The second issue was clearly addressedby Lord Hoffmann in his statement, ``Theonly question which needs to be asked unders. 85(1) is `Did the defendant cause thepollution?' '' To frame the question in anyother way, for example ``what caused thepollution?'', is incorrect as it can lead toseveral answers. Foreseeability is a relevantingredient in the tort of negligence, but it isnot of relevance regarding liability under thes. 85(1) offences as these (re causing) are ofstrict liability. This casts doubt on the earlierdecisions of NRA v Wright Engineering Co. Ltd

[1994] 4 All ER 281 and Welsh Water Authorityv Williams Motors (Cymdu) Ltd (1988) TheTimes, 5 December.

But what of the act of a third party or anatural event (as in Alphacell where vegetationblocked a pump)? If the defendant has createda situation where polluting matter couldescape (as in the instant case with aninsufficiently bunded diesel tank in a yard),and if a necessary condition of the escape isthe act of a third party or a natural event, ``thejustices should consider whether that act orevent should be regarded as a normal fact oflife or something extraordinary''.

The example Lord Hoffmann gives ofsomething extraordinary is a terrorist attackwhich clearly shows the magnitude of theextraordinary event. Only if the event isextraordinary can the justices hold that thedefendant did not cause the pollution.

Commentary

This case illustrates the problems that mayface a business which stores quantities ofpotentially polluting material on site withoutsufficient safeguards.

The most common cause of water pollutionafter sewage is incidents involving oil (see 263ENDS Report 31). Particular attention has beendrawn by the Environment Agency to oilpollution with proposals for new regulationssetting minimum standards for oil stores putout for consultation in December 1996. How-ever, despite a move towards reducing therisk of oil pollution from oil stores, incidentscontinue ± the instant case being illustrative.Indeed, the recently published figures forwater pollution incidents in England andWales in 1997 show 19,571 reported waterpollution incidents; of these, 5,542 (28 percent) were caused by oil (279 ENDS Report16).

In Empress Cars, Lord Hoffmann, possiblyaware of the problems illustrated above,delivered a clear, probing judgment.Common sense abounds in avoiding ques-tions such as ``what'' or ``who'' causedpollution, to simply ask instead, ``Did thedefendant cause the pollution?''

The judgment sweeps away earlier author-ities (Welsh Water Authority v Williams Motors(Cwmdu) and NRA v Wright Engineering Co.

18 Copyright # 1999 John Wiley & Sons, Ltd.

Case Note Util. Law Rev., 10(1) Jan±Feb 1999

Ltd) and casts doubts on Price v Cromackand Wychavon District Council v NRA due totheir restrictive approach. To cause pollutionunder s. 85(1) of the Act, the defendant``must do something''. If the situation where``poisonous, noxious or polluting matter'' canescape is created and either a natural or thirdparty act is a condition of the escape, to avoidliability the intervening act must, by its verynature, be ``extraordinary''.

However, this term ``extraordinary'', if notas a result of its meaning but by its nature,helps recreate the uncertainty whichhad previously been swept away. The NewEnglish Oxford Dictionary definition of ``extra-ordinary'' is ``unusual, remarkable, unusuallygreat''. In some cases this may appear easy toapply, for example in relation to a latentdefect in a pipe (Environment Agency v Brockplc (1998) The Times, 26 March). However, indistinguishing between the ordinary andextraordinary as matters of fact and degreeby application of common sense and localknowledge, how should the justices regard anarea which has been the subject of extremeacts of vandalism on a reasonably regularbasis in the past? Extremist groups havetargeted particular infrastructure projectsand utilities before. Does an incident repeat-ing a prior ``extraordinary'' event constitutesomething sufficiently ``unusual''?

It has been suggested (see MacDonald,``Causing Water Pollution'' (1998) NLJ 559)that one impact of this case will be thatdefendants may now place greater emphasison evidence to help show that the event wasoutside the realm of their experience. This, ofcourse, remains to be seen.

The Department of the Environment, Trans-port and the Regions (DETR) had, prior tothis judgment, already acknowledged theproblems posed by the storage of oil andpossible water solution incidents.

In December 1996, the DETR (in itsprevious incarnation) issued a consultationpaper, Proposals to Control Water Pollution fromIndustrial Commercial, Institutional and Residen-tial Oil Storage Facilities. The paper excludedwaste oil (already covered by the WasteManagement Licensing Regulations 1994)and fuel oil as used in agriculture. Petroleum

spirit was not deliberately mentioned but itsinclusion/exclusion is subject to views ofconsultees. The Regulations would apply toall installations constructed, substantially con-structed or reconstructed after they come intoeffect. A notice procedure will exist for anyexisting installation which the Agency con-siders poses a significant risk of pollution. Themain provisions of the proposed Regulationswould be concerned with design standardsfor containers and the catchment systemsurrounding them. If convicted under theRegulations the offence (summarily or onindictment) would carry a fine.

The above consultation period finished on14 March 1997, but the responses and draftRegulations will now have to be considered inthe light of the need to implement theGroundwater Directive (80/68/EEC). A con-sultation paper (Draft Groundwater Regulations1998) was issued on this matter in January1998 (consultation finished on 14 April 1998).These Regulations also potentially effectsectors of industry which manufacture,handle, store or use a wide variety ofpoisonous, noxious and polluting matters intwo separate lists. List 1 (in relation to theinstant case) includes mineral oils and hydro-carbons.

The DETR is presently considering whetherthe two sets of Regulations can be used incombination. If so, the implication of theEmpress Cars judgment in terms of mainten-ance and management of substances mayacquire a statutory form within regulations.This can only be right if businesses are toespouse their environmental credentials andpay more than mere lipservice to ``polluterpays''. Indeed, this judgment must be praisedfor reinforcing the stance businesses must taketo ensure that operations are properly main-tained and managed.

Finally, causing is not exclusive to the realmof s. 85 of the Act. Similar language appears inPart II of the Environmental Protection Act1990, s. 33 (``knowingly causes or knowinglypermits'') and in Part IIA, s. 78 (``causes orknowingly permits''). Whether this judgmentis of relevance to the interpretation of theseoffences remains to be seen.

PAUL OSBORNE

Copyright # 1999 John Wiley & Sons, Ltd. 19

Util. Law Rev., 10(1) Jan±Feb 1999 Case Note