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NEC ECC: CE for dealing with a pollution incident?

0 votes
We have a situation where we are undertaking works on an area with the environmental designations Special Area of Conservation (SAC) and Site of Specific Scientific Interest (SSSI).

We have had a pollution incident as a result of particular type of method, which needs to be urgently contained and cleaned up, and the Contractor has been instructed to undertake this remedial works by the statutory regulator.

The WI and SI makes it clear we are working in an area with these environmental restrictions. Also, it was foreseeable that this type of incident had a high possibility of occurring (and potentially will happen numerous times again) and is not unreasonable for a Contractor to allow for this rectification cost within his bid.

-    the working method which resulted in this incident is the only option,
-    It is an NEC3 Option A contract,
-    Clauses 60.1(7), 60.1(12), 60.1(13) and 60.1(19) have been deleted,
-    There has been no PMI or verbal instruction for the clean up by PM or Supervisor, the request has come from the statutory regulator via our environmental department ,
-    If the incident isn’t cleaned soon we risk a large fine and reputation damage for a serious pollution incident,
-    The location of the clean-up is proving very difficult to get to, may require specialist equipment or to even be carted

Who would ultimately be responsible for the costs for the clean-up?
asked Dec 6, 2018 in Compensation Events by JJQS (210 points)  

2 Answers

+1 vote
In order to carry out works within a SAC, I would have expected the promoter of the scheme (ie. Employer/Client) to have undertaken an Environmental Impact Assessment and if, as you say, the working method being used is the only option, I would have expected the risks to have been assessed and suitable mitigation measures put in place.

If the pollution incident affects the qualifying features of the SAC, then I would have expected an AIES (Assessment of Implications on European Sites) to have been carried out.  If these impacts cannot be avoided then there should have been a demonstration that the scheme met the test of Imperative Reasons of Overriding Public Interest (IROPI).  If this has not been done, then the works should not be carried out.

I would expect the regulatory authority to be prosecuting the Employer for this and the case would probably also be taken up by the European Court of Justice.  I would think the contractual situation is a minor consideration, so I would suggest that the PM on behalf of the Employer, instructs whatever is necessary to remedy the situation that currently exists, then pull off site and re-think the whole project.
answered Dec 7, 2018 by dave meller (2,010 points)  
0 votes
Well, firstly, I agree with the sentiments of Dave Miller who seems to know more about this than I do !

Addressing the purely NEC aspects: from what you have said, not only is it clear this could happen and you have closed the more obvious contractual routes for them to claim a compensation event.

The one that remains open is if you instruct them to do the clear-up as this would be a change to the Works Information (NEC3) or Scope (NEC4). However, the obvious counter argument to this would be that "it arises from the fault of the Contractor" and therefore, while a compensation event, has zero assessment (see clause 61.4)

But, given what you say, does it really arise from the fault of the Contractor ? It sounds as if there was a high risk of this happening regardless of which Contractor you employed.

Going back to what Dave said, I would fundamentally re-think the project as otherwise both of you might end up with a large fine and a bad reputation.
answered Dec 7, 2018 by Jon Broome Panel Members (56,570 points)