Part 1 of this article on the UK water sector, published in our May 2022 edition, described an industry ‘devoid of moral substance’ in which privatised water companies’ collective behaviour had become inconsistent with sustainable public health engineering practices and operating principles. These circumstances now bring into question the nature of ongoing civil disputes that, to date, have prompted litigious endeavours principally limited to claims relating to nuisance. These claims may well now stray into the realms of criminal activity and entrap hitherto innocent parties who have escaped legal pursuit through the defence of retirement. In this, the second part of the current paper, Chartered Engineers Professor Robert Jackson and Graham Olsen continue their examination and discussion relating to enormous and ongoing threats to the natural environment posed by profit-driven privatised water companies.
Determinism, the world view that nature and our own lives are completely determined from past to future, reflects the human need for certainty in an uncertain world. Einstein’s general theory of relativity predicted that a ray of starlight passing near the Sun should be deflected five ten-thousandths of a degree by that planet’s gravity; this miniscule effect was confirmed several years later. Putting to one side conjecture, theory, certainty and uncertainty, it is evident that ongoing, long-term concerns regarding risks to public health from water quality remain to this day and warrant detailed and stringent examination.
Examining public health risks through a historical context, between 1800 and 1850 the population of London more than doubled to two million with the city’s first major cholera epidemic striking in 1831 when the disease, deeply feared by all because of the speed with which it could spread, claimed in excess of 6,500 lives. The Building Act of 1844 ensured that all new buildings had to be connected to a sewer and not a cesspool, but two subsequent cholera outbreaks occurred, the first in 1848 causing over 14,000 resident deaths, followed by a second 5 years later when over 10,000 died. A third cholera outbreak in 1854 was blamed on the ongoing problems with the River Thames and prompted a local physician to remove the handle from a local water pump in the district of Soho. This prevented public access to a water supply drawn from a well that had become contaminated with sewage leaking from a nearby sewer. This action resulted in a fall in associated deaths.
In July 1855 the scientist Michael Faraday, best known as the inventor of the electric motor and whose picture hung on the wall of Albert Einstein’s study, wrote to The Times newspaper commenting on the appalling state of the Thames as an open sewer. The river became a public health hazard and empty of any fish or other wildlife, and the smell from it became so bad that in 1857 the government poured lime and carbolic acid into it to lessen the stench. But besides this action, and after many years of suffering from an ageing and inadequate sewer system emptying directly into the river, in July 1858 the Great Stink occurred in Central London with hot weather exacerbating the smell of untreated human waste and industrial-effluent that had accumulated on the river banks. At that time the malodour from these deposited wastes was thought to transmit contagious diseases and prompted action from authorities who accepted a proposal from the 19th century civil engineer Sir Joseph Bazalgette to move the foul smelling effluent eastwards using a new system of interconnecting sewers. This engineering work comprised a network of over 80 miles of underground brick sewers and 1,100 miles of street sewers and eventually brought an end to the cholera outbreaks. This innovative sewerage system still operates to this day but is now required to serve that same city but with an increased population of nine million.
For England and Wales, the principal water pollution offences are contained in the Environmental Permitting (England and Wales) Regulations 2010 and are akin to those formerly set out in the Water Resources Act 1991. Unless complying with an environmental permit or exemption, it is an offence to cause or knowingly permit a water discharge activity that includes discharging poisonous, noxious or polluting matter or solid waste matter into coastal waters or groundwater. In terms of causing or knowingly permitting pollution the courts take a broad approach when deciding whether a party, be it an individual or a company, has caused a water discharge. Such offences cover different types of water as defined in the Water Resources Act 1991 which include virtually all groundwater and surface water resources comprising lakes, ponds, watercourses, rivers, estuaries, coastal waters and the territorial sea out to 3 nautical miles. In terms of culpability there is no need to show that a party knew of such activity or indeed intended it to take place. Moreover, if a single pollution event is due to a chain of events, a party may be regarded as having caused it even if the actions of others were the immediate cause or trigger.
In order that parties are not perpetually exposed to litigation for wrongful acts or omissions the Limitation Act 1980 sets the limitation periods under the civil law of England and Wales comprising fixed periods during which formal proceedings must be commenced; individual limitation periods depend on the nature of each and every claim. The Limitation Act provides for three different limitation periods: a 3-year period comprising the “relative” deadline for complaints; a 10-year referred to as the “absolute” deadline; and a 30-year limitation referenced as the “ultimate” deadline. Once such periods have elapsed a defendant can legitimately argue that such claims are ‘time barred’ by statute and can be dismissed. However, a court may still permit a claim to proceed, even when the limitation period has passed, but such a claim would have to be extremely strong for the court to do so. Furthermore, and perhaps most worrying for some former employees of water companies, if claimants were to bring a claim based on the torts of negligence, nuisance and Rylands v Fletcher, even retirees may be culpable beyond the statute of limitation.
Early public health initiatives clearly demonstrate the importance and success of civil engineering works in eliminating cholera by removing the causal bacterium and which led to decreasing the incidence of other bacterial infections that created typhus and typhoid epidemics. However, back to the present day, there is now an ongoing struggle against mindless and wanton environmental vandalism posing an unwanted risk to human health. This is perhaps best illustrated by a case in July 2021 when it was reported in the Daily Telegraph newspaper that Southern Water employees had locked documents away and tried to stop Environment Agency officers from inspecting sites in an “unprecedented effort to hinder investigation”. Evidence of sewage pollution was locked away in cupboards to stop an investigation and documents were taken away from the regulator’s investigators in an attempt to block the investigation into the pollution of protected beauty spots; the same investigators were also hindered from entering wastewater treatment works sites.
But first let us examine some simple legislation intended to improve the environment. Liverpool is used as an example, but undoubtedly similar events took place elsewhere. The 1972 Liverpool Corporation Act, amongst pages of legislation concerning the operation of taxi cabs, had the following clause in its miscellaneous section: “Where the Corporation have determined to provide separate public sewers for surface water and foul sewage in any area of the city, they may, if they think fit, by notice require any person carrying any development in that area which will drain directly or indirectly into a public sewer to provide separate drains for the reception of surface water and of foul sewage respectively.”
Bearing in mind that Liverpool had serious financial difficulties in the early 1970’s, this legislation put the initial improvement expense of separate system onto developers, with the longer term intention for Liverpool to build a new foul sewerage network, ultimately allowing the existing sewers to revert to storm drains. The policy of separate system was immediately applied to the whole city. However, in 1974, Liverpool became an agent to North West Water, and the new water authority, undoubtedly under pressure from developers and also with a mind to its own future expenditure, then scrapped the requirement for separate system drainage. Almost 50 years on, how much of that new foul system might by now have been constructed with its associated reductions in polluting spills and treatment costs? Would that have been better than later legislation making the water companies responsible for the private drainage systems that had been built to inferior building regulation standards? The decision was perhaps an indicator of how public vs shareholder interests might be balanced in the future.
The new water companies introduced bonus incentive schemes with the objective of making savings. If, for example, a sewage works manager was told that an element of his bonus was dependent upon him not using higher tariff band electricity, would he be likely to take a chance and switch off pumps thus allowing illegal upstream overflow events or septic storage? The company would have placed all the legal risk on the employee whilst getting the benefit of lower running costs at the expense of the environment. We should add at this point that the recent very high increases in electrical energy costs will provide even greater temptation for this kind of thing.
Southern Water, another UK water authority becoming a company privatised in 1989 has been owned since 2007 by a consortium of infrastructure investors including UBS Asset Management and JPMorgan Asset Management. The company now has a £880 million annual turnover, a 2020 pre-tax profit of £213 million, and supplies water to and treats sewage from 4.7m people in Kent, Sussex, Hampshire and the Isle of Wight. The company, having received 168 previous convictions and cautions, pleaded guilty to 51 counts of dumping poisonous waste, including raw sewage, into rivers and coastal waters between 2010 and 2015. This dumping occurred near to several popular tourist hotspot areas, many of which have protected environmental status, but the company was found to be not “criminally liable”. However, after the largest ever investigation by the Environment Agency, three Southern Water employees were successfully convicted despite their arguing that they were told by a company solicitor not to give data to the regulator.
Pausing for a moment to step back 40 years, the Watergate affair was a major political scandal in the United States involving the administration of U.S. President Richard Nixon. At the time President Nixon’s press secretary described the event as “a third-rate burglary attempt” and confirmed that he had conducted a thorough investigation into the incident. Nixon further stated “I can say categorically that no one in the White House staff, no one in this Administration, presently employed, was involved in this very bizarre incident.” In fact no such investigation had been conducted and subsequent events led to Nixon’s resignation in 1974. As the American writer Samuel Langhorne Clemens, better known by his pen name Mark Twain, once stated “Truth is stranger than fiction.”
Water companies are currently permitted to discharge wastewater into the environment during periods of heavy rainfall in order to prevent sewers becoming overloaded and backing up, but Southern Water was found to have continued discharging sewage during periods of low rainfall. Indeed, the court heard that each unlawful raw sewage spill lasted for approximately nine hours and continued for a cumulative duration of 61,704 hours which equates to a total period exceeding seven years. At a number of locations raw wastewater was discharged at flow rates exceeding several hundred litres per second and resulted in a total volume of between 16 and 21 billion litres, equivalent to the capacity of 7,400 Olympic swimming pools, being pumped into the sea.
At a Crown Court hearing an officer of the Environment Agency informed the court that on one occasion records were taken from regulator staff and locked in a van, and on another documents were locked in a cupboard. The regulator stated “Across various sites, co-ordinated by senior officers including a senior lawyer, the defendant company placed itself in opposition to the agency”. The regulator further confirmed that the investigation was frustrated “in an unprecedented way for what might be considered an ordinary lawful company, rather than someone operating on the margins”. The court heard that the investigation was the “worst case brought by the Environment Agency in its history” and was created by “a deliberate lack of control and investment”. As a result, three employees were convicted of obstruction of justice and Southern Water was fined a record £90m, a fine higher than any other previously handed down for water pollution, for deliberately pouring sewage into the sea.
The court heard how storm sewage retention tanks were kept full, with their contents turning septic, instead of being biologically treated as required by law. This resulted in several coastal towns being flooded with sewage containing high levels of faecal bacterial contamination resulting in the poisoning of pets and wildlife and undiluted sewage being released directly over shellfish and oyster beds. The subsequent consumption of contaminated shellfish could have given rise to infection from the intestinal bacterium E.coli and/or from norovirus a highly-contagious viral infection. Either of these infections would have put people at risk from diarrhoea and vomiting, with the viral illness potentially proving fatal in rare severe cases. The judge stated that an oyster fishery company would be open to bring civil damages against Southern Water, slammed the water company’s “shocking and wholesale disregard for the environment” and confirmed “I am satisfied that each of the offences were committed deliberately.” He further stated that the water company had a history of criminal activity for its “previous and persistent pollution”, that it “had not learnt”, “its offending simply continued”, and that it “flagrantly disregarded the law”.
The Chairwoman of the Environment Agency remarked “Like all water companies, Southern Water has a responsibility to operate in accordance with permit conditions and protect against serious pollution”. Commenting further on the company she reported “In its deliberate, widespread and repeated offending, it has failed the environment, customers and the system of environmental laws the public puts its trust in.” She also noted “Fines for environmental offences are starting to reach the same level as the highest fines for crimes in financial services”. The case serves to reignite criticism of the UK’s privatised water companies, which have been accused of failing to invest in crucial infrastructure that would prevent damaging pollution and leakage incidents, whilst at the same time as allowing owners, many of which are private equity and sovereign wealth funds, to extract lucrative dividends and pay packages.
In conclusion, problems emanating from short-sighted-ness highlighted in Part 1 of this article bring into question culpability and potential criminal activity and give rise to two principal unanswered uncertainties: is malevolent manipulation and malpractice, and/or wanton environmental vandalism, rife within the UK Water Industry?; and, if claimants were now to bring claims based on the torts of negligence, are retirees culpable beyond the statute of limitation?
About the authors:
Professor Robert Jackson is the former Associate Head of the School of Computing, Science & Engineering at the University of Salford where he held the Mouchel-Parkman Chair in Sustainable Engineering Technologies in the Department of Aeronautical, Civil & Mechanical Engineering. M: 07976 361716; E: professorrobertjackson@gmail.com
Graham Olsen is a Chartered Engineer, former senior manager within the UK utility industry and the former Assistant City Engineer of Liverpool. He is now an independent consultant and expert witness. E: graham.olsen@yourexpert.solutions