Pollution and Enviormental Risk Digest

UK Developments

CASES

On 30 October, in Eastern Counties Leather PLC v. Eastern Counties Leather Group Ltd, the Court of Appeal held that the claimant was entitled to be indemnified under the terms of an environmental indemnity (see the Summer 2002 Digest for the High Court's decision). The Court determined that a clause in the indemnity, which obliged the defendant, in carrying out any remediation works, to ensure that water was pumped from boreholes in accordance with the requirements of the National Rivers Authority (one of the predecessors to the Environment Agency, "EA") but not further or otherwise, meant that the claimant was required merely to pump water from boreholes to comply with its requirements as expressed from time to time. The defendant had argued that the provision required the claimant to pump water at the maximum rate permitted by the abstraction licences.

The Court of Appeal, in Jan de Nul (UK) Ltd v. Axa Royale Belge, has re-opened the issue of whether an insured's remediation of contamination can be covered by a public liability insurance policy. The case is discussed in an article by Valerie Fogleman at the end of this issue of the Digest.

In R. (on the application of Valpak Ltd) v. Environment Agency, Moses J. decided that a pub landlord who sold bottled drinks for consumption in licensed premises was responsible for ensuring that recovery and recycling obligations imposed by the Producer Responsibility Regulations (Packaging Waste) Regulations 1997 (SI 1997/648) were carried out. The EA had argued that, in cases in which the landlord opened the bottle when he served the customer, the obligations were imposed instead on the brewer who supplied the bottles.

LEGISLATION

The Control of Asbestos at Work Regulations 2002 (SI 2002/2675) entered into force on 21 November, with the exception of the provisions relating to the new duty to manage asbestos which will come into force on 21 May 2004. The regulations are discussed in the article by Aidan Thomson at the end of this issue of the Digest.

The Control of Lead at Work Regulations 2002 (SI 2002/2676) entered into force on 21 November. The regulations implement the Directive on the protection of the health and safety of workers from risks related to chemical agents at work (98/24/EC) insofar as it relates to risks to health from exposure to lead. The regulations largely re-enact with modifications the Control of Lead at Work Regulations 1998 (SI 1998/543).

The Control of Substances Hazardous to Health Regulations 2002 (SI 2002/2677) re-enact, with modifications, the Control of Substances Hazardous to Health Regulations 1999 (SI 1999/437). The regulations implement a number of EC Directives, including the Directive on the protection of the health and safety of workers from risks related to chemical agents at work (98/24/EC) insofar as it relates to risks to health from exposure to substances other than asbestos or lead.

The Genetically Modified Organisms (Deliberate Release) Regulations 2002 (SI 2002/2443) came into force in October. The regulations implement, in respect of England and the UK sector of the Continental Shelf, the Directive on the deliberate release of genetically modified organisms, 2001/18/EC (see EU Developments section).

GENERAL

An EA report entitled Dealing with Contaminated Land in England: Progress in 2002 with Implementing the Part IIA Regime was issued in October. It reported that up to March 2002, local authorities in England had notified the EA of 33 contaminated sites, 11 of which have been designated as "special sites" (see the Winter 1999 Digest). As of July 2002, 94 per cent of English local authorities had prepared strategies.

Past land use, identified through an extensive review of historical maps, suggests that 100,000 sites in England and Wales could be contaminated. The EA estimates that local authorities could ultimately identify between 5,000 and 20,000 sites as requiring some form of remediation under the regime.

A separate report will be prepared on progress in Wales, the timing of which has yet to be agreed with the National Assembly for Wales. The Scottish Environment Protection Agency has not produced an equivalent implementation progress report on the basis that no contaminated land has been identified in Scotland as yet.

A report entitled A Benchmark Study: Environment Credit Risk Factors in the Pan European Banking Sector by ISIS Asset Management in association with the University of Strathclyde suggests that whilst banks understand that environmental risks can directly impact bank profitability, there are significant differences in the adequacy of the environmental credit risk procedures that they carry out. The report focused on a sample of ten banks based in Western Europe with international operations.

Sentencing guidance and an information toolkit were launched in November by the Magistrates Association with the aim of helping magistrates to deliver appropriate sentences for environmental offences. The information toolkit is designed to highlight the harm caused by environmental offences as well as to identify aggravating and mitigating circumstances and therefore help magistrates to assess the implications of environmental crimes when passing sentence.

The EA and Total have reached an agreement aimed at cutting Total's pollution incidents. The agreement represents a new style of regulation by the EA in relation to companies in industries that are responsible for regular pollution incidents. Negative publicity surrounding Total's identification as a polluter in the EA's annual Spotlight on Industry resulted in the two organisations entering into a...