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Construction industry warned of environmental blitz on water pollution
The construction industry in the South West is set to be a prime target of the Environment Agency in a new clamp-down to further control water pollution, according to solicitors Lawrence Tucketts.
The Agency has new powers under the Environment Act which gives it the right to carry out investigations to identify the source of pollution, and take action against those found responsible.
The Agency can serve a "works notice" requiring preventative or clean-up action, and failure to comply will carry severe penalties with fines of up to £20,000 and three months' imprisonment at magistrates courts, or unlimited fines and up to two years' imprisonment at higher courts.
Edward Cooke, head of planning and development at Bristol-based Lawrence Tucketts, said the Agency can also undertake any remedial works necessary and charge the cost to those responsible.
He said that the Agency is targeting the construction industry because it has been found to be a significant cause of water pollution, with 625 cases reported last year and still rising. Data held by the Environment Agency shows that contractors are often responsible for water pollution through careless handling of oil and fuel, and overlooking basic precautions.
In the past the Agency was reluctant to use its existing powers to carry out works itself where water pollution was likely because of budgetary constraints and the risk that costs might not be recovered, but this is no longer the case.
The new regulations have a particular impact on developers, contractors and site operators, and have significant implications for brownfield sites.
He stressed that liability for legal action involves knowingly permitting the presence of poisonous or noxious substances or material - not the pollution itself.
Mr Cooke said that the Agency will carry out risk assessments and will take costs and benefits into consideration before deciding whether to serve the works notice.
The new regulations set out appeal procedures, and while notices will not be suspended pending the outcome of an appeal, there is an accelerated appeals procedure on the basis of written representations.
Where it is necessary to enter onto a third party land in order to comply with the terms of a works notice, there are provisions for compensation to be assessed and paid for any damage caused, or rights granted, and for disputes to be referred to the Lands Tribunal.
Mr Cooke said those involved in the construction industry can take simple precautions to avoid falling foul of the new regulations, such as bunding fuel tanks, installing drain interceptors and disposing of waste through reputable waste management companies.
They can also apply to the Environment Agency for a "Discharge Consent" which - if granted and observed - will generally prevent a works notice being served.
They should also review site security and handling procedures for noxious fluids and wastes, and consider insurance against environmental risks.
Those who purchase a Brownfield site should:
undertake detailed pre-contract enquiries;
ensue that they have a comprehensive Environmental Report from a reputable and fully-insured consultant;
consider potential contamination in adjoining sites;
obtain indemnities and warranties from the vendor;
consider insurance against environmental risks.
Mr Cooke said that if approached by the Agency following an incident, those involved should react swiftly but make no admissions and take professional advice as soon as possible.