Ramboll was appointed to assist with a water pollution offence in a river in south-west England in 2014. The failure to dam a river during a road construction project meant that an accidental chemical release led to a number of fish being killed. Working with legal partners, our damage assessors (comprising ecologists, eco-toxicologists and economists) undertook a project to value the damage and identify compensatory actions that were accepted by the Environment Agency.
An enforcement undertaking is a formal offer from an organisation that has committed an offence to make amends for non-compliance and its effects. In recent times there has been an increase in the use of enforcement undertakings for offences that have resulted in environmental damage. This could primarily be due to enforcement undertakings now being available for offences outlined in the Environmental Permitting Regulations 2010, under which sit the majority of water pollution and other offences that often result in harm to the natural environment.
How we helped
Ramboll’s approach to valuation mirrors that applied under the European Environmental Liability Directive: we established a pre-incident baseline condition, evaluated potential environmental impacts to the affected area and developed a cost-benefit analysis of compensatory actions. The process included consultation with local interest groups. The full scale of damage was quantified by evaluating the effects of the chemical and the river’s recovery.
We identified beneficial compensatory actions that would improve river water quality and were acceptable to the client, local conservation authorities and the Environment Agency. The Environment Agency accepted an enforcement undertaking with an approximate value of £8,000.
The local wildlife trust, together with a specialist contractor, was appointed to implement a rural sustainable drainage system, providing improvements to river water quality through the creation of a wetland. The system captures sediment, reduces nutrient inputs and minimises rainfall runoff from adjacent farmland, improving the chemical and ecological status of the river and enhancing the biodiversity of the wetland.
More on enforcement undertakings
From 6 April 2015, the amended Environmental Permitting Regulations made provision for the Environment Agency to accept an enforcement undertaking in the event of a non-compliance or pollution event associated with a permitted activity. This is a natural extension of civil sanctions, allowing operators to take action to remedy, compensate and improve the environment where harm has occurred.
Such offences are usually accidental, but may result in serious harm and attract adverse publicity for the polluter. When the Environment Agency accepts an enforcement undertaking, a number of benefits over criminal prosecution are offered for operators, the regulator, the public and the environment:
- Action is taken where the offence occurred, ensuring restoration of the local environment.
- Communities benefit from the swift return of access to their local environment.
- The action provides operators with an opportunity for good publicity.
- It provides defensible options for restoration that are not necessarily the most costly outcome.
- No other civil sanction or prosecution can be brought if an enforcement undertaking is agreed by the Environment Agency and is satisfactorily carried out.
Ramboll has advised on several enforcement undertakings relating to potential surface and groundwater pollution offences in England since enforcement undertakings were introduced as a form of civil sanction. Most recently, we advised on the potential for damage to a small watercourse in relation to a leachate release from a waste landfill site. The enforcement undertaking was dealt with as a breach of environmental permit and an offer of £50,000 compensation for river conservation projects was accepted and paid to Lincolnshire Wildlife Trust. If you have an ENDS subscription, click here for more information.