Pollution enforcement undertaking

A company which handles hazardous waste has agreed a pollution enforcement undertaking with the regulator. The company made a payment of £25,000 to an environmental charity following the contamination of groundwater at its site.

Augean South Limited of Stamford Road, Kings Cliffe, Northamptonshire also paid £11,058.90 to cover the costs of the Environment Agency investigation.

The discharge in 2020 had a short-term impact on wildlife and saw some amphibian species decline but populations recovered by the following summer. Vegetation also naturally improved after the pollution.

Routine inspections in March 2020, detected high levels of chemicals in the groundwater adjacent to the treatment centre at East Northants Resource Management Facility. The site is operated by Augean South Limited.

After performing further tests, Augean notified the Environment Agency. Officers concluded Augean had negligently exceeded its environmental permits, contrary to regulations 12(1)(b) and 38(1)(a) of the Environmental Permitting (England and Wales) Regulations 2016.

The Environment Agency accepted an Enforcement Undertaking submitted by Augean.

Enforcement undertakings are one of the civil sanctions available to the Environment Agency, enabling the wrongdoer to put right the situation and compensate for any environmental harm.

As part of this agreement, Augean donated £25,000 to the Rockingham Forest Trust, a local charity which promotes environmental projects in Northamptonshire.

It is believed that heavy rainfall during the winter and subsequent storms contributed to the chemical discharge.

The Environment Agency was satisfied Augean took appropriate action to resolve the situation. The company had acted in a timely manner to remove and clean the affected land, whilst continuing to monitor the groundwater and soil.  There have been no similar incidents since at the waste facility.

Enforcement undertaking

An Enforcement Undertaking is a voluntary offer made by an offender to:

  • put right the effects of their offending
  • put right the impact on third parties
  • make sure the offence cannot happen again

Where the Environment Agency accepts the offer, it becomes a legally binding agreement between the Agency and the business or person who makes the offer. The regulator will only consider accepting an enforcement undertaking in cases where:

  • it is not in the public interest to prosecute
  • the offer itself addresses the cause and effect of the offending
  • the offer protects, restores or enhances the natural capital of England

The Environment Agency publishes details of all enforcement undertakings on its website.

pollution enforcement undertaking
Enforcement undertakings can be offered following pollution incidents (stock image)

The Agency is more likely to accept offers when they are offered early and proactively.  Generally, the regulator will only consider accepting an enforcement undertaking offer when:

  • they are confident the terms of the enforcement undertaking will be complied with
  • they believe a breach of relevant legislation has occurred
  • they consider the enforcement undertaking to be the correct regulatory outcome taking into account (i) the nature of the offence and its impact, and (ii) other forms of enforcement available, to remedy the issues concerned, to the environment and the community
  • the offer is above what the company would normally need to do to comply
  • the offer is given in good faith
  • the offeror makes a positive commitment, at the right company level to stop the offending conduct or alleged breach and to maintain compliance
  • the offeror rectifies the consequences of the conduct, including interacting with any third party affected by the offence
  • the offer does not contain restrictions on how the Agency may publish its acceptance in cases involving pollution of the environment or harm to human health and it is demonstrated that any necessary remediation or restoration work commenced or will commence at the earliest opportunity.

There are a number of situations where the Agency will not accept an enforcement undertaking for example, incidents or breaches which are serious (category 1 and 2) unless low culpability or negligence at a low level.  Where legal proceedings have commenced or where the offence was intentional then the Agency are unlikely to accept enforcement undertakings.  For this reason, where a company is considering offering an enforcement undertaking it should be made at a very early stage and it must not include clauses denying liability or restrictions on publicity.

Once an offer has been accepted, it becomes a legally binding written agreement between the offeror and the Environment Agency.  If the enforcement undertaking is not complied with then the Environment Agency can take enforcement action which can include prosecution for the original offence.

If you require environmental advice for your business, please contact one of the Ashbrooke team.

Electric shock prosecutions

Electric shock prosecutions by the Health and Safety Executive (HSE) highlight the dangers of working near overhead power cables. A construction company and two workers have been sentenced after a worker suffered an electric shock whilst working on a farm.

On 30 September 2019 an employee of Connop and Son Limited was working on Worton Grounds Farm, Deddington, Banbury, Oxon and pouring concrete when the floating arm of a mobile concrete pump came into contact with an overhead powerline.

As a result, the employee received an 11,000-volt shock which caused him to lose consciousness. His colleagues had to perform CPR to resuscitate him at the scene. The man was later taken to Oxford Hospital where he was in a coma for six days and hospitalised for 10 days.

The HSE investigation found that Connop & Son Limited fell far below the expected standard and failed to implement its own control measures documented within its risk assessment. Therefore, the company did not meet the requirements of regulation 14 of the Electricity at Work Regulations 1989.

The HSE investigation also found that Alexander Maddan, a sole trader, failed to plan, manage and monitor the construction phase and failed to ensure reasonably practicable control measures were in place. Additionally, Shaun Walker, a concrete pump operator, failed to take reasonable care for the health and safety of himself and others who were affected by his acts or omissions.

Connop and Son Limited, of Folly Farm, Eardisland, Leominster pleaded guilty to breaching regulation 14 of the Electricity at Work Regulations 1989. The company was fined £50,000 and ordered to pay costs of £5,425 plus a victim surcharge of £181 at Oxford Magistrates’ Court on 28 October 2022.

Alexander Maddan, of Deddington, Banbury, Oxon pleaded guilty to breaching regulation 13 (1) of Construction Design and Management Regulations 2015. Mr Maddan was fined £3,000 and ordered to pay costs of £525 plus a victim surcharge of £181 at Oxford Magistrates’ Court on 28 October 2022.

Shaun Walker, of Swinford Leys, Wombourne, Wolverhampton pleaded guilty to breaching section 7 of the Health and Safety at Work Act. Mr Walker was handed a 12-month community order with a requirement to carry out 60 hours of unpaid work and ordered to pay costs of £2,000 plus a victim surcharge of £90 at Oxford Magistrates’ Court on 28 October 2022.

“Connop and Son Limited, Alexander Maddan and Shaun Walker could have ensured that the mobile concrete pump lorry was positioned outside an exclusion zone to prevent contact with the overhead powerline.

“Companies should be aware that HSE will not hesitate to take appropriate enforcement action against those that fall below the required standards.”

HSE inspector Steve Hull

Electric shock prosecutions

Electric shock safety guidance

Regulation 14 of the Electricity at Work Regulations 1989, prohibits people working on or near any live conductor (other than one suitably covered with insulating material so as to prevent danger) that danger may arise unless–

  • it is unreasonable in all the circumstances for it to be dead; and
  • it is reasonable in all the circumstances for him to be at work on or near it while it is live; and
  • suitable precautions (including where necessary the provision of suitable protective equipment) are taken to prevent injury.

Employers and the self-employed must take appropriate precautions to safeguard workers and others who may be impacted by their activities.  Any work activity to be undertaken near electrical cables must be properly planned and risk assessed with risks eliminated or reduced as far as reasonably practicable. 

Accidental contact with live overhead power lines kills people and causes many serious injuries every year. People are also harmed when a person or object gets too close to a line and a flashover occurs. Work involving high vehicles or long equipment is particularly high risk, such as;

In Construction – Lorry mounted cranes (such as Hiabs or Palingers), Mobile Elevated Work Platforms (MEWP’s), scaffold poles, tipper vehicles, cranes, ladders;

In Agriculture – combines, sprayer booms, materials handlers, tipper vehicles, ladders, irrigation pipes, polytunnels;

Those working near overhead powerlines should remember that:

  • going close to a live overhead line can result in a flashover that may kill. Touching a power line is not necessary for the danger to occur;
  • voltages lower than 230 volts can kill and injure people;
  • do not mistake overhead power lines on wooden poles for telephone wires; and
  • electricity can bypass wood, plastic or rubber, if it is damp or dirty, and cause fatal shocks. Do not rely on gloves or rubber boots to protect you.

The HSE guidance note “Avoiding danger from overhead power lines” describes how to work safely near overhead power lines in a range of industries.

Electric shock prosecutions


Plan and manage work near electric overhead power lines so that risks from accidental contact or close proximity to the lines are adequately controlled.  Safety precautions will depend on the nature of the work and will be essential even when work near the line is of short duration.

Safety can be achieved by a combination of measures including:

  • Planning and preparation
  • Eliminating the danger
  • Controlling the access
  • Controlling the work

Planning and preparation

The first step is to find out whether there is any overhead power line within or immediately next to the work area, or across any access route.  Information will be available from the local electricity supplier or Distribution Network Operator (DNO). If any overhead lines are found, you should assume that they are live unless proved otherwise by their owners.

If there are any overhead lines over the work area, near the site boundaries, or over access roads to the work area, consult the owners of the lines so that the proposed plan of work can be discussed.

Allow sufficient time for lines to be diverted or made dead, or for other precautions to be taken.

Eliminating the danger

You can eliminate the danger by:

  • Avoidance – find out if the work really has to be carried out under or near overhead lines, and cannot be done somewhere else. Make sure materials (such as bales or spoil) are not placed near overhead lines, and temporary structures (such as polytunnels) are erected outside safe clearance distances;
  • Diversion – arrange for overhead lines to be diverted away from the work area; or Isolation – arrange for lines to be made dead while the work is being done.

In some cases you may need to use a suitable combination of these measures, particularly where overhead lines pass over permanent work areas.  If the danger cannot be eliminated, you should manage the risk by controlling access to, and work beneath, overhead power lines.

Controlling the access

Where there is no scheduled work or requirement for access under the lines, barriers should be erected at the correct clearance distance away from the line to prevent close approach. The safe clearance distance should be ascertained from the Distribution Network Operator (DNO). HSE guidance documents Avoidance of danger from overhead electric power lines and Electricity at Work: Forestry and Arboriculture also provide advice on safe clearance distances and how barriers should be constructed. Where there is a requirement to pass beneath the lines, defined passageways should be made and clearly delineated.

The danger area should be made as small as possible by restricting the width of the passageway to the minimum needed for the safe crossing of plant. The passageway should cross the route of the overhead line at right angles if possible.

Controlling the work

If work beneath live overhead power lines cannot be avoided, barriers, goal posts and warning notices should be provided. Where field work is taking place, it may be impractical to erect barriers and goal posts around the overhead lines – these are more appropriate for use at gateways, on tracks and at access points to farmyards.  The following precautions may also be needed to manage the risk:

  • Clearance – the safe clearance required beneath the overhead lines should be found by contacting the Distribution Network Operator (DNO);
  • Exclusion – vehicles, plant, machinery, equipment, or materials that could reach beyond the safe clearance distance should not be taken near the line;
  • Modifications – Vehicles such as cranes, excavators and tele-handlers should be modified by the addition of suitable physical restraints so that they cannot reach beyond the safe clearance distances, measures should be put in place to ensure these restraints are effective and cannot be altered or tampered with;
  • Maintenance – operators of high machinery should be instructed not carry out any work on top of the machinery near overhead power lines;
  • Supervision – access for plant and materials and the working of plant should be under the direct supervision of a suitable person appointed to ensure that safety precautions are observed.

What to do if you come into contact with an OHPL

  • If part of a vehicle or load is in contact with an OHPL, you should remain in the cab and inform the Distribution Network Operator (DNO) immediately (stick the number in a visible place in the cab and keep it on your mobile phone).
  • Warn others to stay away.
  • Try to drive clear. If this is not possible, and you need to leave the vehicle to escape fire, JUMP CLEAR – do not dismount by climbing down the steps.
  • Never try to disentangle equipment until the owner of the line has confirmed that it has been de-energised and made safe.

Contact with an overhead power line may cause the power to ‘trip out’ temporarily and it may be re-energised automatically, without warning.  Your local Distribution Network Operator (DNO) can generally supply stickers describing emergency procedures and containing contact numbers that can be stuck in the cabs of vehicles likely to be used near overhead power lines.

The leaflet called Safe working near overhead power lines in agriculture and the Electricity Networks Association (ENA) publications Safety Information for Farmers and Agricultural Contractors and Watch It! In the Vicinity of Overhead Lines provide advice on what to do if machinery or equipment comes into contact with an overhead power line.

If you require health and safety advice for your business, please contact one of the Ashbrooke team.

Nestle Newcastle factory fine

Nestle Newcastle factory fine after an employee suffered life-changing injuries.  The incident happened on 30 November 2020 when the man was drawn into a roller mechanism on a conveyor machine.

South Tyneside Magistrates’ Court heard how the maintenance technician was investigating a problem on the conveyor belt of a machine used to make chocolate sweets. While checking the machine, his sleeve was caught in a roller, which dragged his left arm into the machine, trapping it between the roller and a conveyor belt.

A Health and Safety Executive (HSE) investigation into the incident at Nestle’s factory on Rowan Drive, Fawdon, Newcastle upon Tyne found that the company had not properly assessed the risk created by the rollers under the conveyor belt and failed to guard the roller, which was a dangerous part.

It was foreseeable that employees would require access to this area and there was a clear risk of injury to employees coming into contact with this roller. Nestle had previously been prosecuted following a similar incident at its Halifax factory.

Nestle UK Ltd of City Place, Gatwick, West Sussex, pleaded guilty to breaching Regulation 11(1) of the Provision and Use of Work Equipment Regulations 1998 and was fined £800,000, ordered to pay costs of £7,776.50 and a victim surcharge of £190 at South Tyneside Magistrates’ Court on October 19.

“This incident could easily have been avoided had Nestle properly reviewed the safety measures at its plant and its equipment to ensure that access to dangerous parts was prevented.

“Nestle were aware of this risk following a similar incident at its Halifax plant but failed to take appropriate action.”

HSE inspector William Gilroy
Nestle Newcastle factory fine
Employers must ensure equipment is safe (stock image)

Work Equipment Guidance

The Provision and Use of Work Equipment Regulations 1998, often abbreviated to PUWER, place duties on people and companies who own, operate or have control over work equipment. PUWER also places responsibilities on businesses and organisations whose employees use work equipment, whether owned by them or not.  PUWER requires that equipment provided for use at work is:

  • suitable for the intended use
  • safe for use, maintained in a safe condition and inspected to ensure it is correctly installed and does not subsequently deteriorate
  • used only by people who have received adequate information, instruction and training
  • accompanied by suitable health and safety measures, such as protective devices and controls. These will normally include guarding, emergency stop devices, adequate means of isolation from sources of energy, clearly visible markings and warning devices
  • used in accordance with specific requirements, for mobile work equipment and power presses

Some work equipment is subject to other health and safety legislation in addition to PUWER. For example, lifting equipment must also meet the requirements of the Lifting Operations and Lifting Equipment Regulations 1998 (LOLER), pressure equipment must meet the Pressure Systems Safety Regulations 2000 and personal protective equipment must meet the Personal Protective Equipment at Work Regulations 1992 (PPE).

If your business or organisation uses work equipment or is involved in providing work equipment for others to use (e.g. for hire), you must manage the risks from that equipment. This means you must:

  • ensure the equipment is constructed or adapted to be suitable for the purpose it is used or provided for
  • take account of the working conditions and health and safety risks in the workplace when selecting work equipment
  • ensure work equipment is only used for suitable purposes
  • ensure work equipment is maintained in an efficient state, in efficient working order and in good repair
  • where a machine has a maintenance log, keep this up to date
  • where the safety of work equipment depends on the manner of installation, it must be inspected after installation and before being put into use
  • where work equipment is exposed to deteriorating conditions liable to result in dangerous situations, it must be inspected to ensure faults are detected in good time so the risk to health and safety is managed
  • ensure that all people using, supervising or managing the use of work equipment are provided with adequate, clear health and safety information. This will include, where necessary, written instructions on its use and suitable equipment markings and warnings
  • ensure that all people who use, supervise or manage the use of work equipment have received adequate training, which should include the correct use of the equipment, the risks that may arise from its use and the precautions to take
  • where the use of work equipment is likely to involve a specific risk to health and safety (eg woodworking machinery), ensure that the use of the equipment is restricted to those people trained and appointed to use it
  • take effective measures to prevent access to dangerous parts of machinery. This will normally be by fixed guarding but where routine access is needed, interlocked guards (sometimes with guard locking) may be needed to stop the movement of dangerous parts before a person can reach the danger zone. Where this is not possible, such as with the blade of a circular saw, it must be protected as far as possible and a safe system of work used. These protective measures should follow the hierarchy laid down in PUWER regulation 11(2) and the PUWER Approved Code of Practice and guidance or, for woodworking machinery, the Safe use of woodworking machinery: Approved Code of Practice and guidance
  • take measures to prevent or control the risks to people from parts and substances falling or being ejected from work equipment, or the rupture or disintegration of work equipment
  • ensure that the risks from very hot or cold temperatures from the work equipment or the material being processed or used are managed to prevent injury
  • ensure that work equipment is provided with appropriately identified controls for starting, stopping and controlling it, and that these control systems are safe
  • where appropriate, provide suitable means of isolating work equipment from all power sources (including electric, hydraulic, pneumatic and gravitational energy)
  • ensure work equipment is stabilised by clamping or otherwise to avoid injury
  • take appropriate measures to ensure maintenance operations on work equipment can be carried out safely while the equipment is shut down, without exposing people undertaking maintenance operations to risks to their health and safety

When providing new work equipment for use at work, you must ensure it conforms with the essential requirements of any relevant product supply law (for new machinery this means the Supply of Machinery (Safety) Regulations 2008). You must check it:

  • has appropriate conformity marking and is labelled with the manufacturer’s details 
  • comes with a Declaration of Conformity
  • is provided with instructions in English
  • is free from obvious defects – and that it remains so during its working life

If you require advice on health and safety in your workplace, please contact a member of the Ashbrooke team.