EA commences criminal proceedings against Southern Water

The Administrative Court has today handed down a significant judgment confirming the Environment Agency’s powers to prosecute former employees of Southern Water.

Four former employees from Southern Water, including the former Chief Executive Officer Matthew Wright, face a charge of conspiracy to defraud.

It is alleged that between 1 January 2012 and 31 December 2017 the individuals conspired to defraud the Environment Agency and Ofwat by the implementation of artificial no-flow events at waste water treatment works operated by Southern Water to manipulate the Operator Self-Monitoring (OSM) compliance testing regime. 

Conspiracy to defraud is a common law offence carrying a maximum sentence of 10 years’ imprisonment. The case will now proceed before the Medway Magistrates Court.

OSM was introduced for the water industry in 2009 and requires water companies to take samples at their wastewater treatment works and report the results to the Environment Agency. Strict rules govern how samples must be taken to ensure their independence and accuracy. It is an offence if there is evidence that flows or data are deliberately manipulated to avoid compliance checks.

Southern Water will separately face charges of breaching environmental permits linked to the same conduct. Three further individuals will also face charges linked to failure to comply with environmental permits.

An Environment Agency spokesperson said

We can confirm that we are taking criminal proceedings against Southern Water Services Limited and a number of former employees.

We take our responsibility to protect the environment very seriously and will always pursue and prosecute those alleged to have committed serious offending against the environment. We welcome this important judgment.

ENDS

Notes to editors

• The Judgement has been published here – Matthew Wright, R (on the application of) v Medway Magistrates’ Court – Find Case Law – The National Archives
• The Environment Agency has confirmed today that it has commenced criminal proceedings against Southern Water and four of the company’s former employees – Matthew Wright, Philip Barker, Clive Massey and Mark Gregory.
• Three further individuals will also face charges linked to failure to comply with environmental permits – Mark Butler, Terry Stephens and David James
• The charges follow a complex inquiry by the Environment Agency and are based on evidence secured over many years of investigation.
• As these are live proceedings, we are unable to comment further or provide additional information at this time.
• It has been necessary to deal with the challenge through the courts before it was considered safe to announce. The judgment shows that anonymity was granted by the High Court at an early stage, which the Agency challenged.

About Operator Self-Monitoring

Operator Self-Monitoring (OSM) was introduced for the water industry in 2009 in step with government policy at the time. OSM is used across multiple industries. OSM requires water companies to take samples and report the results to the Environment Agency. The current government has committed to ending operator self-monitoring and will develop a new strengthened Open Monitoring approach for monitoring wastewater.

Under the current approach, strict rules are in place to ensure samples are taken and analysed correctly

• Operators must not be aware of when samples are being taken. Sampling teams are kept separate from operations teams so that samples are independent and taken unannounced.
• The Environment Agency carries out annual Operator Monitoring Assessment (OMA) audits to ensure monitoring procedures are being followed.
• The Environment Agency engages independent experts to assess sampling, monitoring procedures and monitoring equipment. Companies must comply with Monitoring Certification (MCERTS) standards for meters and sampling, with reports provided to the Agency to inform OMA audits.
• The UK Accreditation Service (UKAS) is engaged to verify water company laboratory analysis.
• The Environment Agency makes the assessment of sample results and takes action for failing samples in accordance with its Enforcement and Sanctions Policy.

In the last year, scrutiny of OSM has been increased

• Water companies must reschedule samples if there are no flows when the sampler arrives at the works, which is audited as part of OMA.
• The Environment Agency now conducts sampler checks, shadowing water company sampling teams to ensure samples are being correctly taken.
• This year, the Agency is beginning to take its own samples to cross-check against water company results.

It is an offence if there is evidence that flows or data are deliberately manipulated to avoid compliance checks. The Environment Agency will take enforcement action up to and including prosecution for the most serious offences, including manipulation of OSM results. Safeguards are in place to ensure the quality of information provided, and there are serious consequences for operators who manipulate data.