The Pollution of Water: Offences (Determination of Liability) Regulations (Northern Ireland) 2007

Former sewerage undertakers

5.—(1) A former sewerage undertaker shall not be guilty of an offence under Article 7(1), (2) or (6) of the 1999 Order by reason only of the fact that a discharge from a private waste water treatment works operated by him contravenes conditions of a discharge consent if —

(a) the contravention is attributable to a discharge which another person made into the works; and

(b) the former sewerage undertaker —

(i) was obliged under the terms of the operating agreement to receive the discharge;

(ii) could not reasonably have been expected to prevent the discharge into the works; and

(iii) made all reasonable efforts to dispose of the discharge in accordance with the terms of the operating agreement and of the discharge consent.

(2) Where —

(a) under or pursuant to an operating agreement with a sewerage undertaker —

(i) a former sewerage undertaker is bound to receive a discharge into a private waste water treatment works operated by him and to do so unconditionally; and

(ii) receipt of the discharge entitles the former sewerage undertaker to perform differentially under or pursuant to the operating agreement; and

(b) there is a contravention attributable to the discharge of conditions of a discharge consent relating to discharges from the works,

paragraph (2)(a) of regulation 4 shall apply as if, except in the circumstances mentioned in paragraph (3), sub-paragraph (i) were omitted.

(3) The circumstances referred to in paragraph (2) are where -

(a) the entitlement of the former sewerage undertaker to perform differentially is attributable to a discharge which a person other than the sewerage undertaker made into the sewer or works vested in the sewerage undertaker;

(b) the sewerage undertaker either was not bound to receive the discharge into the sewer or works so vested or was bound to receive it there subject to conditions which were not observed; and

(c) the sewerage undertaker could not reasonably have been expected to prevent the discharge into the sewer or works so vested.

(4) In paragraphs (2) and (3) references to a former sewerage undertaker being entitled to perform differentially, in relation to a discharge which he is bound to receive into the works under or pursuant to an operating agreement with a sewerage undertaker, are references to the former sewerage undertaker being entitled under or pursuant to that agreement, in consequence of receipt of the discharge, to provide a lower quality of treatment, or to satisfy an obligation as to treatment which is less onerous, in relation to that discharge than that which would otherwise apply under or pursuant to the agreement in relation to discharges which the former sewerage undertaker is bound so to receive (and for this purpose the reference to an obligation being less onerous than another includes a reference to an obligation being qualified, whether by reasonableness or reasonable endeavours or otherwise, in comparison to the other).

(5) In relation to any discharge which a former sewerage undertaker is bound to receive into a private waste water treatment works operated by him under or pursuant to an operating agreement with a sewerage undertaker, paragraph (8) of regulation 4 shall apply as if the references to the operator did not include references to the former sewerage undertaker

(6) In this regulation —

“former sewerage undertaker” means a person who –

(a)

was a sewerage undertaker within the meaning of that term in Article 2(2) of the 1999 Order before its repeal by virtue of Article 291(3) of the Water and Sewerage Services (Northern Ireland) Order 2006; and

(b)

in that capacity was operating a waste water treatment works immediately before the transfer date (as defined in Article 2(2) of that Order); and

“operating agreement”, in relation to a private waste water treatment works, means the agreement under Article 13(4) of the Water and Sewerage Services (Northern Ireland) Order 1973, by virtue of which the former sewerage undertaker operates that works.