We are a main contractor and have a dewatering subcontractor employed on an NEC3 ECC subcontract option A.
The discharge licence of extracted groundwater is Contractor responsibility to arrange. The requirements of the licence we have chosen to operate under stipulates that the water being discharged into the local watercourse must be ‘clean’. We suspended the dewatering because we did not deem the groundwater being extracted to be ‘clean’ enough to discharge into the river. We asked the subcontractor to revise their methodology to make the groundwater cleaner, and we sought independent advice because the subcontractor was dragging their heels and failed to come up with any solutions. The subcontractor on the other hand believes the water was clean enough to discharge and has subsequently applied for a CE for suspension of work and standing charges.
Where do we stand with this, in terms of whether a claim is applicable? Do we have any grounds to reject the CE from the pov that we don’t believe the Subcontractor has complied with the licence?
To be able to answer, can you please confirm if the licence was stated in the Subcontract Works Information as a facility, or similar, that the Contractor was to provide and the Subcontractor was required to comply with it or that the Contractor was to provide and silent in respect of complying with it. I have presumed that the Contractor has chosen the point of discharge and this is stipulated in the Subcontract Works Information.
If the licence is part of the Subcontract Works Information and the Subcontractor is required to comply with it (even if the detail was not known) then it is not a CE unless your requirements now exceed those of the licence.
If compliance with the licence was silent then the test will be whether the requirements of the licence exceed those required to comply with the law of the contract. The second test will be whether the methodology used by the Subcontractor was producing a water clean enough to comply with the law. If the Subcontractor was complying with the law then you are requiring something in excess which would be additional.
The Subcontract Works information says the Contractor provides/arranges the licence, and is silent in respect of complying with it.
The licence route we went down is an emergency discharge licence which falls under Regulatory Permission Statement (RPS) 261 which is from Government / Environment Agency. We have been clear throughout with the Subcontractor that we intend to discharge under RPS 261. The issue we have is RPS 261 requires ‘clean’ water which is subjective.