Odds and ends in the Environment Bill

The main powers and duties of the Environment Agency and its structure are likely to receive most attention as the Environment Bill continues its passage through Parliament. But the Bill will also make many changes to the fine print of established features of environmental law which will have significant implications for both the Agency and those it regulates. Among these will be the abolition of the long-standing "tripartite" sampling procedure, making it easier to prosecute for water pollution offences. The Agency will also have new powers to serve enforcement notices to correct or head off breaches of discharge consents or waste licences. But the proposed deregulation of the discharge consent procedure will reduce public participation and weaken existing controls over discharges. Important questions are also raised by the Bill's provisions on the Agency's powers of entry, and by the powers it will provide the Secretary of State to influence its activities.

Last month we reviewed in detail the Bill's provisions on contaminated land, and outlined its other main provisions. The Bill will also make detailed amendments to many existing environmental statutes, mostly by means of schedules which take up 140 of its 256 pages. These changes will be important to environmental practitioners, and below we report on most of the major and some of the smaller amendments of this kind.

  • Abolition of "tripartite" sampling for water pollution prosecutions: Clause 93 of the Bill will scrap a long-standing requirement on the water pollution control authorities to follow a "tripartite" procedure if samples they have taken are to be admissible in legal proceedings.

    The law obliges an authority to notify the occupier of the land that it has taken a sample and to divide it into three portions. One of these goes to the occupier and one to the authority, with the third being reserved for subsequent analysis in the event of any dispute.

    The National Rivers Authority (NRA) has been keen to have this arrangement abolished, for several reasons. Firstly, other authorities do no operate under these constraints - among them HM Inspectorate of Pollution (HMIP), even though it now regulates discharges from major industrial sites. A second anomaly is that a third party such as an environmental group can bring a private prosecution for a water pollution offence without observing the tripartite procedure.

    Thirdly, the tripartite regime appears to be of limited practical benefit to discharges. The only publicised recent case in which the results of a sample were challenged by a discharger was a prosecution of the incineration business ReChem International by Welsh Water in respect of a discharge to sewer, to which the tripartite procedure also applies. In the event, an independent analysis upheld Welsh Water's results (ENDS Report 224, p 43 ).

    Fourth, defendants in several recent prosecutions have attempted to persuade the courts that the tripartite requirements should be extended in ways which were not foreseen when they were introduced. This summer alone, the Court of Appeal has rejected pleas that evidence obtained from a hand-held meter and an automatic river monitoring device should not be admissible in pollution prosecutions (ENDS Report 235, p 41 ), as well as a challenge by a water company to the procedures followed by the NRA immediately after taking an effluent sample (ENDS Report 235, p 42 ).

    However, two years ago a significant extra burden was imposed on the NRA after Harcros Timber & Building Supplies persuaded the Divisional Court that the tripartite procedure must be followed for samples of river water - as well as effluent - if they were to be admissible in evidence (ENDS Report 207, p 38 ).

    Fifth, the NRA argues that its attempts to reduce monitoring costs by installing automatic effluent and water sampling devices and to encourage self-monitoring by dischargers are being held back by the tripartite requirements. Last year, the chemical company Rhone-Poulenc became the first to be convicted of a pollution offence on the basis of evidence from an automatic effluent sampling device (ENDS Report 217, p 44 ), but uncertainty about the legal status of evidence obtained in this way has discouraged the NRA from deploying such equipment on a large scale.

    A sixth issue flagged by the NRA in the 1990 Kinnersley report - a wide-ranging view of its approach to discharge consents (ENDS Report 186, pp 17-18/23-24) - was that the growing use of percentile limits in consents would impose a significant cost burden, and make the task of prosecuting offenders more difficult. This was because every sample taken in the period during which compliance was being assessed against a percentile limit would have to be tripartite for the results to be admissible as evidence.

    Clause 93 will abolish the tripartite requirements not only for direct discharges and any other samples taken by the Agency, but also for discharges to sewer, which are policed by the sewerage undertakers.

    In addition, the Bill will provide that any information obtained or provided under the terms of any environmental licence - including information from any "apparatus" - is admissible in legal proceedings. "Apparatus" will be presumed "to register or record accurately, unless the contrary is shown or the relevant licence otherwise provides."

  • Records and offences: Clause 93 and related provisions elsewhere in the Bill will clarify the legal admissibility of another category of evidence in relation to environmental offences.

    The Bill will make it clear that, where an environmental licence requires an entry relating to the observance of any condition in that licence to made in a record, and that entry is not made, that fact will be admissible as evidence that the condition was not observed. A similar provision currently exists only in Part I of the Environmental Protection Act 1990.

  • Powers of entry: The powers of the NRA, HMIP and waste regulation authorities (WRAs) to enter premises, carry out inspections, collect evidence and so on currently vary on important points of detail.

    As expected, the Bill will harmonise these provisions. Two questions are likely to feature in the debate on the proposed new set of powers: will anything be lost or gained in the harmonisation exercise? And will the new powers of entry help to make the Environment Agency more than the sum of its parts?

    In broad terms, the existing legislation will be harmonised upwards. For example, at present HMIP may only enter premises where a prescribed process is being or has been carried on. This, and a similar restriction on WRAs, will be removed. The Agency's powers will be modelled on the Water Resources Act 1991, which entitles the NRA to enter any premises in order to ascertain whether legislative requirements are being complied with, to carry out its statutory functions, or to determine whether and, if so, how such functions should be carried out.

    The Bill will also put beyond doubt that the Agency as a whole will have certain powers currently held specifically only by the NRA under the 1991 Act. This entitles it to carry out experimental borings or other works, and to install monitoring and "other" apparatus, on premises.

    However, the Agency's powers in this area will be narrower than the NRA's. The latter can drill or install apparatus for the three purposes noted above: to check for compliance with legislation, to carry out its functions, or to determine whether and, if so, how such functions should be carried out. The Bill appears to be more restrictive, enabling the Agency to do those things only in order to establish whether any pollution control legislation is being or has been complied with.

    The Bill will give local authorities the same powers to carry out experimental drilling and install apparatus, but subject to the same restrictions. The suspicion must be that the effect will be to restrict both them and the Agency in going onto premises in order to assess whether a site is contaminated with a view to exercising the new powers and duties in respect of contaminated land which will be created by the Bill (ENDS Report 238, pp 15-19 ).

    A further important point about the powers of entry is that they may only be exercised in relation to the Agency's "pollution control functions". These are defined as functions conferred on it by a series of specified laws. Surprisingly, this list does not include the Environment Bill itself, even though it will impose novel responsibilities on the Agency for which powers of entry may well be valuable.

    One of these can be found in clause 5(2). This will place the Agency under a duty, "for the purpose...of enabling it to form an opinion of the general state of pollution of the environment, [to] compile information relating to such pollution (whether the information is acquired by the Agency carrying out observations or is obtained in any other way)."

    However, because this duty is not defined as a "pollution control function", the Agency will be unable to use its powers of entry in order to gather information about the "general state of pollution of the environment". This may be particularly restrictive for its HMIP arm, which lacks powers to enter land other than in the "vicinity" of processes it regulates in order to install monitoring equipment, take measurements and so on with a view to assessing the dispersion and environmental effects of industrial emissions to atmosphere. The NRA's position is more favourable, since it is one of its functions under the 1991 Act to "monitor the extent of pollution in controlled waters" generally.

    The Government may come under pressure in the Lords to overcome its apparent reluctance to harmonise upwards the existing legislation in this area because it is clearly linked to the Agency's capacity to produce a state of the environment report.

    Lord Crickhowell, the NRA Chairman, stressed during a House of Lords debate on 23 November that it will be "crucial" for the Agency to be placed under a duty to produce such a report. "That will represent a powerful weapon, as [will] the ability of the Agency...to put all the facts, monitoring results and its concerns openly on the table. Make no mistake about it", he said. "The ability of the Agency to perform will depend on its ability to move the Government to work with it effectively, not just by internal discussion but by the manner in which it presents its arguments out in the open."

  • Enforcement notices: Only HMIP currently has explicit powers to serve an enforcement notice. It may do this if any condition in an integrated pollution control (IPC) authorisation is being breached or is likely to be breached. An enforcement notice must specify the remedial steps to be taken and a compliance deadline.

    The only power available to WRAs which comes anywhere close to this entitles them to require the holder of a waste management licence to comply with a licence condition within a set time if it has been breached. But there is no formal provision for enforcement notices, nor does the power extend to cases where a WRA believes that a contravention of a licence condition is likely.

    The NRA has no equivalent powers. The 1990 Kinnersley report pointed out that this sometimes left it with an unpalatable choice between issuing a warning which had no statutory force, or prosecution. Something in between was needed, the report said, to enable management's attention to be drawn to the need to improve discharge performance.

    An upward harmonisation exercise will be carried out by the Bill, enabling the Agency to serve enforcement notices in respect of waste licences and discharge consents. In both cases it will be able to do so if a condition is being contravened or is likely to be contravened. Anyone convicted in a magistrates' court of non-compliance with a notice will face a fine of up to £20,000 or a prison term of up to three months.

    Provision is made in the Bill for appeals against enforcement notices served in respect of discharge consents. However, no such provision appears to have been made in respect of notices concerning waste management licences.

  • Revocation or suspension powers: WRAs currently possess the toughest powers to take sanctions against polluting or criminal activities, and the Government apparently does not intend to extend these to the IPC and discharge consent regimes. However, the Agency will gain still tougher powers to enforce suspension or revocation orders in respect of waste management licences.

    The new powers will apply in two circumstances. At present, a WRA may suspend a licence in whole or part if a licensed activity ceases to be in the hands of a "technically competent" person, or if it has caused serious pollution or serious harm to human health or is likely to do so. The licence-holder may then be required to take specified steps to deal with or avert the pollution or harm, and non-compliance with such an order is a criminal offence. The extra power conferred by the Bill will enable the Agency to seek enforcement of such an order in the High Court if it believes that criminal proceedings for non-compliance would "afford an ineffectual remedy."

    Secondly, a WRA may revoke or suspend a licence in whole or part if the licence-holder fails to meet a requirement to comply with a particular licence condition within a specified time. Again, the Agency will be able to apply to the High Court to secure compliance with such a requirement if it believes that suspension or revocation would be ineffectual.

  • Imminent harm: HMIP and the WRAs possess identical powers to seize and "cause to be rendered harmless" any article or substance which they have "reasonable cause" to believe to be a "cause of imminent danger" of serious harm to human health or the environment. The NRA has no such powers, but clause 91 of the Bill will ensure that such measures can be taken to avert serious danger to the aquatic environment from any premises which the Agency is entitled to enter.

  • False or misleading statements and false entries: The main environmental statutes contain inconsistent offence provisions in these area. Again, the Bill will harmonise these upwards using the IPC regime as a model.

    Under IPC, it is an offence knowingly or recklessly to make a false or misleading statement "in purported compliance with a requirement to furnish any information" to the authorities, or for the purpose of obtaining an authorisation or variation of an existing authorisation. It is also an offence "intentionally to make a false entry in any record".

    Under schedule 16 of the Bill, these provisions will replace or be added to the relevant legislation dealing with waste licensing, radioactive substances, water pollution and abstraction, and registration of waste carriers.

    Most of these statutes currently make it an offence only to make a false statement, but making a misleading statement will be made an offence as well. Until now, there has been no offence under water, radioactive substances or waste legislation of making a false entry in a record required by a permit, and this omission will also be rectified.

  • New powers for Secretary of State to give directions in relation to authorisation and consents: The Bill will extend the Secretary of State's powers to intervene in the determination of applications relating to industrial processes under IPC and to discharge consents generally, as well as to air emissions from processes which are, and will remain, subject to local authority control.

    Under the 1990 Act, the Secretary of State may call in an application for authorisation for his own decision, and may also direct HMIP or local authorities not to proceed with a specific application or class of applications for any period he chooses.

    Both powers will now be extended to applications for the variation of an existing authorisation. Separately, the Bill will enable the Secretary of State to direct the Agency not to proceed with a specific application or class of applications for a discharge consent or its variation, again for any period he chooses.

    Like many enabling powers, the new provisions are open to widely divergent interpretations. At one extreme, they may be seen as the Government taking power to control how the Agency conducts its affairs.

    The timing is also interesting, in that industrial processes controlled by both HMIP and local authorities are due for upgrading to new plant standards over the next few years, and in general this will be formalised by varying their initial authorisations. By taking powers to call in applications for variation or to defer decisions on them, the Government will now be in a position to postpone the impact of upgrading on industry, or alternatively to help achieve a level playing-field.

    Officials, however, say that what is intended is simply a tidying up exercise, correcting the anomaly that the Secretary of State has powers over initial applications for authorisation but not over applications for variation. Suspicions that anything else may be in the offing are unfounded, they say - pointing to the fact that the Secretary of State has never used his existing powers to call in an application, even when asked to do so on one occasion in respect of a proposal to burn Orimulsion at a power station. However, it is also worth noting that it was not considered necessary over many decades for the Secretary of state to have powers to direct that the determination of discharge consent applications should be deferred.

  • Public registers: New powers are to be given to the Secretary of State to direct the Agency - as well as local councils in respect of their duties to maintain public registers under Parts I and II of the 1990 Act - as to the places at which registers must be available to the public.

    The existing provisions on public registers relating to discharges and the state of the aquatic environment are also to be amended. In particular, the restrictions imposed on the disclosure via registers of information held to affect national security or commercial confidentiality which are presently found in Parts I and II of the 1990 Act, along with their arrangements for businesses to make commercial confidentiality claims, will be repeated in the 1991 Act.

    One effect of this change may be to widen the scope for commercial confidentiality claims relating to discharges. At present, material may only be excluded from the register if its disclosure would prejudice to an unreasonable degree some private interest by revealing a "trade secret". Once the 1991 Act is amended by the Bill, material may be kept off the register if its disclosure would prejudice an applicant's "commercial interests" to an unreasonable degree.

  • Prison sentence: Where a person commits any one of three offences under the IPC and local authority air pollution control regimes, the maximum penalty available on summary conviction is presently £20,000. The three offences are the operation of a prescribed process without an authorisation or in breach of an enforcement notice, and failure to comply with a court order. The Bill will make available an additional penalty of a prison sentence of up to three months.

  • More limited defence for waste offence: Under section 33 of the 1990 Act, several defences are potentially available where someone is charged with any of the basic waste management offences. One of the defences is that an otherwise illegal action had to be taken "in an emergency in order to avoid danger to the public".

    The Bill will make it more difficult to invoke this defence. A defendant will now have to show not only that there was an emergency and that the action taken was necessary to avoid danger to human health, but also that "he took all such steps as were reasonably practicable in the circumstances for minimising pollution of the environment and harm to human health."

  • Duty of care: Under section 34 of the 1990 Act, a waste holder must transfer waste only to an "authorised person" if he is to avoid committing an offence. "Authorised person" is then defined to include a registered waste carrier, the holder of a waste management licence, and several other categories of person.

    Section 34 makes no provision for new categories of person be added to the list of authorised persons, but the Bill will allow this to be done by regulation. It is not yet clear, however, whether the DoE already has in mind some extensions to this list.

  • Deregulation of discharge consent procedures: Late last year, the Department of the Environment (DoE) issued a consultation paper proposing the deregulation of several features of the discharge consent procedure. The DoE claimed that its proposals would lighten the burden of regulation on dischargers without reducing levels of environmental protection. However, it provided no specific evidence to support its assertion that the procedures concerned were a burden, and glossed over the implication that opportunities for public participation in the determination of consents would be seriously curtailed (ENDS Report 226, pp 31-33 ).

    Several, though not all, of these proposals are to be implemented by the Bill. In addition, the consent procedures in the 1991 Act have been made less specific at several points, with the Secretary of State being given powers to fill in the detail by means of regulations, so that what was previously explicit is no longer clear.

    For example, the 1991 Act required the NRA to publicise each application for a discharge consent in a local newspaper and the London Gazette. Copies of the application were also to be submitted to the local authority and the water undertaker within whose areas the discharge was to be made. The only cases in which these provisions did not apply were where the NRA judged that a discharge would have "no appreciable effect" on the receiving waters.

    What will happen instead under the Bill is not clear because it provides in very general terms that consent applications must be advertised by or on behalf of the applicant "in such manner as may be required by regulations made by the Secretary of State," while the Agency will provide a copy of the application "to the persons who are prescribed [by regulations] or directed to be consulted" by the Secretary of State.

    The Secretary of State will also be given new powers to vary the standard six-week period for statutory consultees and the public to make representations on consent applications, and to exempt classes of application from consultation requirements altogether.

    The Government has proceeded with one group of proposals made in last year's consultation paper. At present, where the NRA is minded to give a discharge consent, it must notify anyone who made representations or objections of its intention. They, in turn, have 21 days in which to ask the Secretary of State to call in the application for his own decision.

    These arrangements have provided an important safeguard, giving an opportunity for the DoE to be alerted to potentially problematic discharges before a consent had been issued. However, they are to be scrapped altogether. The Secretary of State will retain his power to call in applications in response to external representations, but this is likely to be little consolation to anyone who hears about a controversial consent only after it has been issued. It is also highly improbable that the Secretary of State would be willing to use his call-in powers after a consent had been determined.

    Another way in which the scope for public participation in the consent procedure may be curbed is the removal of a provision entitling anyone who had made representations about a consent application to do so again at a hearing convened by the Secretary of State if that application was called in. Whether this right is in fact to be scrapped is not clear, again because it will be for the Secretary of State to make regulations laying down the procedure for determining called-in applications.

    The existing provisions relating to discharge consents will be weakened in at least another two ways. Firstly, the NRA's current duty to review consents "from time to time" will be turned into a discretionary power for the Agency. And second, while the NRA is generally barred from modifying a consent within two years of its entry into force or any previous modification, the Agency will be unable to make such changes for four years.

    The NRA was not deeply concerned by the prospect of these changes when they were mooted last year. The four-year prohibition on modification of discharge consents, for example, can be overridden where EC rules dictate or in order to protect public health or flora and fauna dependent on the aquatic environment - though only at the Secretary of State's direction.

    However, the NRA may now be less relaxed about losing its current duty to review consents. A year ago it was expecting the process of consent review to be driven by the introduction of statutory water quality objectives, which were intended to make it clear what long-term improvements were expected of dischargers in individual catchments. But another year has elapsed and not one such objective has been proposed, let along agreed - the blockage again being the DoE.

  • Trade effluent: At present, discharges to sewer are regulated by sewerage undertakers by means of trade effluent consents or agreements. However, where discharges contain "special category effluent", the Secretary of State decides whether such discharges should be allowed and, if so, subject to any specific conditions.

    This arrangement, laid down by the Water Industry Act 1991, is intended to protect surface waters receiving discharges from sewage works from pollution by "special category effluent" - essentially "red list" substances and discharges from certain asbestos, paper pulp and chlorinated organic chemical manufacturing processes. It also gives central government the opportunity to intervene where discharges to sewer are likely to prejudice compliance with various pollution reduction targets agreed at North Sea ministerial conferences.

    Over the past few years, HMIP has in practice been carrying out the Secretary of State's functions in this area, and the Bill will formalise this by transferring them to the Agency.

    Several changes will accompany this transfer. Sewerage undertakers will remain under a duty to notify consents or agreements relating to discharges containing special category effluent to the Agency. But whereas any failure to notify the Secretary of State was previously enforceable by him or the water regulator Ofwat using an enforcement order which carried no immediate sanctions, it will now become a criminal offence enforceable in the courts.

    The Bill will also oblige the Agency to review any consent or agreement relating to special category effluent which had not been notified to it in accordance with the prescribed procedure. As at present, the outcome of a review may be the revocation or variation of such a consent or agreement. It is to be made a criminal offence for a sewerage undertaker not to give effect to a notice served by the Agency revoking or varying a consent or agreement.

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