CONSULTATION ON THE TRANSPOSITION OF ARTICLE 6 OF THE GROUNDWATER DIIRECTIVE (2006/118/EC) IN ENGLAND AND WALES

Introduction

  1. The UK Environmental Law Association aims to make the law work for a better environment and to improve understanding and awareness of environmental law. UKELA’s members are involved in the practice, study or formulation of Environmental Law in the UK and the European Union. It attracts both lawyers and non-lawyers and has a broad membership from the private and public sectors.
  2. UKELA prepares advice to government with the help of its specialist working parties, covering a range of environmental law topics. This response has been prepared with the help of the Water working party.
  3. UKELA’s current priorities include:
  4. Informing and actively influencing the broad law and policy debate on climate change including the measures to reduce greenhouse gas emissions and manage their impacts at the international, EU and domestic level;
  5. Helping deliver more effective and efficient environmental regulation including enforcement at the EU and UK level, not lower standards nor less regulation unless the same or better outcomes will be achieved.
  6. UKELA works on a UK basis and seeks to ensure that best legislation and practice are achieved across the devolved jurisdictions.
  7. UKELA makes the following comments on the above Consultation for which the response deadline is 20 August 2008.
  1. In general we believe the proposed approach of amending the 1998 Regulations meets the requirements for implementing Article 6 of the Groundwater Directive (“GwD”). However, the implications of the 1998 Regulations, as amended, are potentially very wide ranging and great care needs to be taken to avoid unintended consequences. These concerns are raised in response to the individual questions raised within the consultation.

CONSULTATION QUESTIONS

Question 1

The requirement under Article 6 GwD is to “take all measures necessary to prevent inputs into groundwater of any hazardous substances […]”. The existing 1998 Groundwater Regulations prevent inputs of some hazardous substances, as Article 4 states that “authorisation shall not be granted if it would permit the direct discharge of any substance in list 1”. We understand that the proposal is that the 1998 Regulations are to be amended to extend this control over any “hazardous substance” which is not a List 1 Substance, using the definition of “hazardous substance” within the Water Framework Directive (Article 2.29, which uses a definition led by the properties of substances).

The existing List I Substances, although widely drafted, is only a limited number of substances. Applying the properties-led definitionof “hazardous substances” within the Water Framework Directive could result in many more substances needing to be considered; too numerous to mention. A key issue will be how the hazardous nature of substances is to be assessed, especially with regard to dissolved ionic substances. It is possible that almost all existing List II Substances will be “promoted” e.g. lead, chromium.

Question 2

This approach is appropriate, and short of deriving a new, but fundamentally similar regime, is the most logical approach.

Question 3

The principal dis-benefit is the potential uncertainty arising from the much larger list of potential substances. It has become common practice that where there is uncertainty about whether a substance is List I or List II it is assumed to be List I. If such a practice continues under the new regime, this could result in many hundreds of substances being assumed to be hazardous.

Question 4

The move to a more risk-based assessment of which substances need the highest level of control should be welcomed. It is more consistent with the general thrust of both UK and EU regulation and we welcome the intention for the groundwater authorisation regime to be brought within the Environmental Permitting Regime in due course. However, the concern raised at Question 1 should be taken into account when considering the effect of referring to hazardous substances by their properties rather than by a list.

Question 5

Given the very large number of potentially hazardous substances it is not practical to list them on the face of the Regulations, especially given the implementation timetable. It is right and proper that a technical assessment is made, and if JAGDAG can be re-constituted this would be an appropriate body. However, it is not clear what role they will need to fill if the definition of hazardous substances within the Water Framework Directive is to be applied. The Water Framework Directive definitions are dependent on the “risk phases” under COSHH and associated regulations, and commonly listed on material safety data sheets. Therefore it should be quite readily apparent which substances are hazardous and which are not.

Question 6

Whilst the risk-based approached by the changes is welcome in theory, it is not clear that it will produce real benefits. The application of the definitions of “hazardous substance” from the Water Framework Directive will result in many substances being classified as hazardous even though concentrations will not necessarily be near requisite concentration thresholds. This will potentially lead to greater costs for industry in terms of treating discharges with very little environmental benefit, especially with regard to contaminated land.

Question 7

The existing regulations include a clause that includes any substance that could have an effect on potability of drinking water in List II, including affecting the taste or odour of the water. This clause could be read as including any chemical within List II as, at sufficiently high concentrations almost anything could meet this criterion. However, the interpretation of this clause is variable. Substances that are not definitively on List II but would be included as non-hazardous under the revised regulations include chloride, sulphate and sodium amongst many others. The question regarding the “circumstances in which these substances are used” seems to indicate a slight misunderstanding of the nature of the proposed regulations. The regulations will, in effect, cover every chemical that exists should it be discharged, either as hazardous or non-hazardous substances. Many of these chemicals will be used in numerous ways and discharged in a number of ways, deliberately and by accident.

Question 8

The issue of direct and indirect discharges is not specifically referred to in Article 6 and is in any case artificial and are not entirely distinctive from each other. Whilst direct discharges may be considered more “risky”, if they are subject to appropriate controls they should not really be treated fundamentally differently than any other discharge. The application of this distinction with regard to List I substances has led to decisions that have no environmental benefit, for example the closure of landfill sites due to perceived direct discharges that had no prospect of causing pollution to groundwater. It is safe to assume there are many such discharges at present, including from dilute and disperse landfills.

Question 11

Making the scope risk based is entirely consistent with the UK approach. But very clear guidance (if possible, within a statutory framework) will be needed to ensure all polluters are treated equally.

Question 12

Extending the powers to diffuse pollution could, if accompanied by a duty on the EA to enforce, place a very large burden on them. The number of such discharges is potentially very large and assessment will be complex and the EA may not necessarily have the resources to apply the proposed new regime in a consistent manner (unless additional resources are provided to it).

Question 13

All allowable exemptions must be allowed, with the decision as to whether a particular circumstance qualified being made on a risk basis.

Questions 14 – 16

We have no comments.

Contact:

Mothiur Rahman

Co-convenor, UK Environmental Law Association Water Working Party

c/o Bircham Dyson Bell LLP, 50 Broadway, London SW1H 0BL

Telephone: 020 7783 3427

Email:

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