The client in the food and drink sector had a turnover in excess of £3.5 billion and was charged with polluting a small UK chalk stream in the East of England. Worse still, because of the sensitivity of the habitat the level of pollution alleged was put at ‘significant’ which coupled with the level of culpability the investigator assigned of ‘negligent’ meant that the regulator (The Environment Agency) under the UK’s Sentencing Council Guidelines would be seeking a fine from the Court of in of £2 Million.
Based on similar work for another food sector client, our instructing solicitor, obtained via disclosure all the regulators sample and investigation data and at this point it became clear certain parts of the investigation did not add up. Using these deficiencies and investigations of our own and the client we were able to show that; that the dye testing linking the alleged discharge point on site to the discharge in the river was compromised, other drainage routes leading off site were active and furthermore the ratio of certain pollutants in the river and suggested cause of the problem on site did not match the source identified. To the contrary the pollution looked more like an over application of farm slurry from fields now shown to be linked to the outfall sampled.
Further analysis revealed heavy rainfall in the 24 hours before the polluting discharge occurred, further supporting the alternative source theory. The levels of pollution alleged were also found to be of a far lower impact on the river than suggested.
Our detailed desktop research and a small trade effluent profile study had confirmed that the effluent in the river was most likely farm slurry not our client’s site. An expert report was then prepared and served as required by the Court on the regulator. The Environment Agency made no attempt to question the findings. The Court case was simply discontinued.
