Impact of groundwater regulations still unclear

New regulations to protect groundwater against pollution will begin to take effect in Britain on 1 January. 1 The impact on farmers has been softened by reductions in charges for authorising pesticide and sheep dip disposal, and by an apparent softening of the Environment Agency's line on banning soakaways. The impact on industry, though potentially significant, remains unclear pending official guidance on implementation.

The regulations were needed to stave off threatened legal action by the European Commission over the UK's failure to comply with the 1980 EC Directive on groundwater protection. Regulations to apply the EC rules to landfills were introduced in 1994, but until now the controls required on other industrial, waste disposal and agricultural activities have been missing.

Even now, the Directive has not been fully complied with. The new regulations apply in Britain, but separate rules are still being drafted for Northern Ireland.

The regulations may prove a valuable new weapon in the water pollution control armoury. However, their impact on both industry and agriculture remains uncertain. Illumination should come when the Department of the Environment, Transport and the Regions (DETR) consults on draft guidance, probably early next year.

The regulations are little changed from a draft issued last January (ENDS Report 276, pp 42-43 ). The draft attracted strong criticism and pleas for greater flexibility from agricultural interests and some industry bodies (ENDS Report 280, pp 35-37 ), but the Government's hands were largely tied by the need to comply with the Directive. What flexibility there is will come from the Government's and the Environment Agencies' interpretation of the law and its application in practice.

The Directive is a precautionary instrument intended to prevent groundwater pollution. To this end, it sets down rules aimed at preventing the entry of the most hazardous "List I" substances into groundwater, with narrowly defined exceptions, and at preventing "pollution" of groundwater by less hazardous "List II" substances.

In transposing these requirements, the Government has introduced a few "exclusions" from the regulations. In line with the Directive, one applies to discharges containing List I or II substances "in a quantity or concentration so small as to obviate any present or future danger of deterioration in the quality of the receiving groundwater." The Environment Agencies are required periodically to publish summaries of their interpretation of this exclusion, which provides one potential means of injecting flexibility into the regime.

More controversially, all activities for which a waste management licence is required are excluded. This has been done on the grounds that the 1994 waste licensing regulations already apply the Directive's requirement to licensed sites.

However, as the Environment Agency pointed out in its response to the draft regulations, the 1994 regulations apply only to disposal or tipping. Other licensable activities, such as metal recycling sites and waste transfer stations, are not covered, but "represent a real risk of pollution by List I and II substances," the Agency said. It suggested a clarifying amendment of the groundwater regulations, but this has not been done.

For some activities liable to discharge List I or II substances to groundwater, the regulations' requirements will be implemented through existing regimes - discharge consents and integrated pollution control authorisations. For those not already regulated in this way, two new forms of "authorisation" are introduced.

  • Authorisations will be required for disposal or tipping of List I or II substances. Applications for authorisation can be made from 1 January 1999. No express deadline has been set for submission of applications, but there is a general requirement for all affected activities to comply with the regulations from 1 April 1999.

  • Notices "may" be served by the Agencies in relation to other activities on or in the ground which "might" lead to an indirect discharge of a List I substance or to pollution by a List II substance. The notices may prohibit an activity or authorise it subject to conditions.

    The main notice-making powers in regulation 19 are discretionary. But regulations 4 and 5 place a duty on the Agencies to exercise those powers where "it is necessary to do so for the purpose of" preventing List I discharges or pollution by List II substances.

    Much will depend on how the powers are exercised. According to Bob Harris, head of the Environment Agency's National Groundwater and Contaminated Land Centre, "a priority-based procedure, based on the vulnerability of the groundwater and the risks posed by the potential discharge or disposal, is being drawn up so that the most important activities and sensitive locations can be tackled first." The Agency already has maps which classify groundwaters according to their vulnerability to pollution, coupled with a protective zoning system around public water supply boreholes.

    The regulations follow the Directive closely in providing that authorisations may not be granted until an activity has been subject to "prior investigation" to establish the nature of any pollution risks and unless the Agencies are satisfied that the groundwaters concerned will receive the "requisite surveillance". Neither term is defined, though clarification may come in guidance.

    A general duty is imposed on the Agencies to monitor compliance with authorisation conditions and the effects of discharges on groundwater. Again, the nature and frequency of such monitoring is not prescribed.

    A potentially important feature of the regulations is a provision for Ministers to approve codes of practice containing guidance on how businesses may discharge their legal obligations. In deciding whether to serve a notice under regulation 19, the Agencies are required to consider whether the relevant code has been or is likely to be followed.

    The only existing precedent for a code with statutory backing in the water pollution field is a code of good agricultural practice. The DETR declined to be drawn on what activities are likely to be covered by codes.

    Other provisions in the regulations establish arrangements for appeals against the Agencies' decisions on authorisations. And the Agencies' water pollution registers are to include copies of authorisations, information furnished to the Agencies in connection with authorisations and monitoring data.

    The regulations also introduce a cost recovery regime, with an application fee and an annual "subsistence" charge being payable to the Agencies by holders of authorisations.

    The charging arrangements for farmers are perhaps the area in which the DETR's original proposals have been most heavily revised. In January, it estimated that farmers would have to pay a £537 application fee, along with a subsistence charge of between £124 and £871.

    The figures provoked an outcry from farmers, as reported in May. In October, the Environment Agency responded by proposing reduced charges for farmers disposing of small volumes of sheep dip, pesticides and tank washings to land on a maximum of four occasions per year. The proposed application fee is £88, with a subsistence charge of £107.

    These changes have enabled the DETR to revise drastically its estimates of the costs to farmers. In January, it put the one-off costs at £145-312 million, with recurring annual costs put at £25-178 million. The figures have now been cut to just £17.4 million and £4 million, respectively.

    The changes pose a number of questions. The subsistence charges put forward in January were, at the higher end, expected to pay for Agency monitoring of discharges. With the charge now cut to £107, it is far from clear how "requisite surveillance" or the Agencies' monitoring will be paid for.

    Secondly, the Agency appears to have back-tracked quietly on its demands that disposal of spent sheep dip in particular to soakaways should be banned.

    In its regulatory impact assessment, the DETR comments: "Given that the Environment Agency is likely to assess most disposal sites as being located in areas of low vulnerability, most farmers are expected to continue disposing of sheep dip to land." This would enable most sheep farmers to avoid significant costs for extra prior investigations - including boreholes in some cases.

    In practice, much will depend on whether the new synthetic pyrethroid sheep dips which have featured in a recent rash of water pollution incidents are classed as List I substances. Their high toxicity, which has led to aquatic wildlife being wiped out on lengthy stretches of river in some incidents, suggests that they should be - though political expediency may dictate otherwise. Entry on List I would mean that discharges to groundwater should be prohibited, regardless of whether they are in areas of low vulnerability.

    The only other sector for which the DETR has estimated potential compliance costs is petrol retailing. Here, it assumes that 2% of the 14,000 petrol stations in England and Wales pose a risk to groundwater, and that pollution prevention measures would cost an average of £51,000 to give a sectoral cost of £14.2 million.

    The 2% figure appears remarkably low. Five years ago, Shell revealed that one-third of its petrol stations in the UK had leaked to some extent - and other retailers almost certainly have similar problems (ENDS Report 219, pp 4-5 ).

    The regulations, though, are potentially much more wide-ranging. As the Environment Agency's head of Water Quality, Dr Martin Griffiths, commented in November, they should "encourage anyone who makes, uses, distributes, stores or disposes of chemicals to be aware of the risks posed to groundwater."

    The only benefits quantified in the DETR's assessment are the averted costs of installing additional treatment at water supply boreholes. These are put at £0.7 million for a small borehole producing 4.5 megalitres per day. According to the DETR, if the need to install treatment at six boreholes per year is avoided, the annual saving would be equivalent to the annual cost paid by the sheep farming industry.

    The DETR puts the total compliance costs for all sectors at £32-120 million in one-off costs, plus £5-17 million in recurring annual costs. The make-up and origin of these figures is not explained. Much will depend on how the Agencies exercise their authorisation powers - and the first insights into official thinking on this will not be available for a few months yet.

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