Guidance on groundwater rules takes case-by-case approach

Guidance on the 1998 groundwater regulations was published by the Department for Environment, Food and Rural Affairs on 24 September.1 It leaves a great deal to site-specific decisions by the Environment Agency.

The regulations belatedly implemented the 1980 EU Directive on groundwater protection. They applied throughout Britain, but the guidance applies only to England and Wales.

The regulations introduced a system of authorisations for disposal of materials containing so-called List I or II substances, along with requirements for "prior investigation" and "requisite surveillance" of groundwater. They also enabled the Environment Agency to serve notices prohibiting or imposing conditions on activities liable to pollute groundwater with List I or II substances (ENDS Report 286, pp 33-34 ).

The regulations were drafted in broad terms, and the new guidance does not do a huge amount to clarify matters.

One issue on which advice was needed was whether individual chemicals among the groups on List I are in fact to be treated as List I substances which must not be allowed to enter groundwater.

The matter was considered by an advisory group which recommended that inclusion of 79 substances on List I was "not inappropriate," according to the guidance. The 79 substances feature in an annex headed "List of substances recommended to be confirmed as List I." The net result is to leave their precise status obscure. Periodic consultation on the addition of further substances to this list is promised.

The guidance will not provide a great deal of help to applicants for authorisations looking to understand what they need to do by way of "requisite surveillance" - or monitoring of the potential impacts of a discharge to groundwater.

Requisite surveillance "may" be achieved both through the national groundwater monitoring network and site-specific monitoring facilities, the guidance says - with the need for the latter being determined by the Agency in the light of its own duties under the regulations, taking account of local circumstances. However, it is "unlikely" that special monitoring boreholes will be required at the "majority" of disposal sites, and in deciding whether to require them the Agency should ensure that costs to the operator are "proportional" to the pollution risks involved.

The guidance is somewhat more expansive on the issue of "prior investigation", outlining a phased process in which the Agency will decide on the depth of environmental assessment required of applicants in the light of the pollution risks of their proposals.

The guidance also points to flexibility which "might" be applied during prior investigations. It suggests that the Agency may allow more of a List II substance to be discharged to groundwater where there is a deep unsaturated zone or one with good pollutant attenuation capacity. Discharges of List I substances may also be possible in such cases, as long as they do not pass into the groundwater.

However, DEFRA goes on to caution, "such considerations do not comprise a general rule and can only be applied on a site-specific basis."

The regulations also enable the Agency to authorise List I discharges in exceptional circumstances where groundwater is permanently unsuitable for other uses and List I substances would not impede the use of groundwater resources. The guidance says that the Agency "will be responsible" for developing criteria for determining when groundwater is "permanently unsuitable" - which was the position in 1998.

The guidance goes on to say that all sectors are potentially subject to the regulations. The Agency is not known to have used its powers to serve notices as yet, but DEFRA says that sectors such as metal finishing, dry cleaning and petrol stations "might be affected" by these.

The interaction between the groundwater regulations and the waste management licensing system - including the exemptions from it - is a particular grey area.

Here, the guidance says that land spreading of materials such as paper, pulp and brewing wastes which does not achieve beneficial use or agricultural improvement will require authorisation under the groundwater regulations if the wastes contain List I or II substances.

This approach applies unless an operation "is already covered by a waste management licence, or the activity has been specifically exempted from waste management control on the grounds that there is no environmental risk (in which case the risk to groundwater should have been specifically examined)."

However, that advice is then blurred by a later statement - that "activities which are exempted from the waste management licensing regime are not automatically exempted from the provisions of the groundwater regulations, and separate assessment under the groundwater regulations may be needed."

The requirements of the regulations are to be amplified in codes of practice. Compliance with a code "should normally be of considerable assistance" in dissuading the Agency from serving a notice, the guidance says - but it will not be an absolute bar to a notice or prosecution.

The first code under the regulations, dealing with sheep dipping, was published in September.2 It appears not to have been formally approved by Ministers. The first approved code, currently out to consultation, will deal with underground fuel tanks (ENDS Report 319, pp 42-43 ).

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