112 Moving the pollution goalposts

Apologies, another blog diving into the detail of policy and law in the United Kingdom.? I hope that readers in other countries can still find something in it to inform, educate and entertain.

Water (Special Measures) Bill

The Water (Special Measures) Bill is currently making its way through parliament, starting in the House of Lords.? It is being scrutinised and challenged line by line during many hours of discussion; although this being the House of Lords it is all very gentlemanly and ladylike.?

Most of the publicity about the bill has been about its imposition of rules on governance of the water companies; including restrictions on paying bonuses to directors if company performance is inadequate.? However, Clause 2 of the bill is about Pollution Incident Reduction Plans (PIRPs) and is rather interesting.? At the time of writing, their lordships have not yet got round to discussing this clause; so it may change before it becomes law.

Clause 3 is about emergency overflows and may be interesting enough to be the subject of a future blog.

PIRPs

Water and sewerage companies have prepared PIRPs for the last few years to report on the number of pollution incidents that have been caused by discharges from their operations and to set out what they will do to reduce that number.? The plans are mostly concerned with operational improvement to prevent sewer blockages, equipment breakdowns and power interruptions.

The pollution incidents that are reported and targeted in the PIRPs are as classified by the Environment Agency into four categories:

• Category 1 – major, serious, persistent or extensive impact or effect on the environment, people or property
• Category 2 – significant impact or effect on the environment, people or property
• Category 3 – minor or minimal impact or effect on the environment, people or property
• Category 4 – substantiated incident with no impact

The PIRPs generally only look at categories 1 to 3.

Moving the goalposts

The (draft) bill makes it a legal requirement for a water and sewerage company to produce a PIRP each year, rather than the informal requirement at present.? The exact wording is:

1. Each sewerage undertaker whose area is wholly or mainly in England must, before 1 April in each calendar year, prepare and publish a pollution incident reduction plan.
2. A pollution incident reduction plan is a plan for how the undertaker intends to reduce the occurrence of pollution incidents that are attributable to its sewerage system.
3. For the purposes of this section, references to pollution incidents that are attributable to the sewerage system of an undertaker

(a)? are references to discharges from any structure or apparatus comprised in that system of any content which may be harmful to health or the quality of the environment, but

(b)? do not include references to discharges of treated effluent in accordance with an environmental permit (including any conditions to which it is subject).

This is where the bill moves the goalposts.

To understand how, we have to go back to the existing legal definition of pollution.? This is defined in the Water Resources Act 1991 as:

“… causing or knowingly permitting any poisonous, noxious or polluting matter to enter any controlled waters.”

Many engineers in the UK will be familiar with this phrase.? But where did it come from and what does it mean?? I turned to Howarth and McGillivray, my go-to fountain of knowledge for all things to do with the law on water pollution:

This says that the phrase “poisonous, noxious or polluting matter” was first used in the Rivers Pollution Prevention Act of 1876.? However this did not define what any of the words meant.? When the Water Resources Act was written, over a century later, the drafters obviously assumed that everyone knew what the words meant, so again didn’t define them.?

Howarth and McGillivray spend 5 pages of dense text analysing case law to understand what they mean.? Basically the three taken together mean any substance that could, in the wrong circumstances, cause an impact on a watercourse (not just this particular watercourse).? It does not require that the discharge does cause an impact; just that it might.

However, the Environmental Permitting Regulations say that a polluting discharge is not a criminal offence of pollution if the discharge is in line with the requirements of a discharge permit.

So how does the PIRP definition match up?

The phrase “content which may be harmful to health or the quality of the environment” seems to have a similar meaning to “poisonous, noxious or polluting matter” and it is clear that it is only required that it may cause an impact, not that it does.? So far so good.? But the change is to the effect of a discharge permit.

Sewerage companies will make discharges of:

• treated effluent, which is governed by conditions in a discharge permit
• storm sewage from storm overflows, which is governed by conditions in a discharge permit
• emergency overflows when there is a fault, which is governed by conditions in a discharge permit
• surface water from surface water sewers, which is generally not covered by a permit.

So for the purpose of a PIRP, every discharge from a storm overflow counts as a pollution incident even if it is in compliance with its discharge permit.? The most immediate effect of this is that the number of pollutant incidents that a sewerage company has to report will go up from a few hundred to tens of thousands.? I can imagine how that will be reported in mainstream and social media.? The second effect is that a plan must be drawn up for reducing the frequency of the discharge even though it is already compliant with its permit.? Will be sewerage company be allowed to increase customer bills to pay for the unnecessary work?

Emergency overflows

The new definition of pollution incidents for PIRPs would mean that every discharge from an emergency overflow would need to be included in the reporting and planned improvements in the PIRP.

The inclusion of Clause 3 in the bill to aim to control the use of emergency overflows demonstrates the concern that there is over their use.? So, this is a sensible requirement for PIRPs.

Surface water sewers

Discharges from surface water sewers are an anomaly both in the new bill for PIRPs and in the older Water Resources Act that defines the criminal offence of pollution.

They are not exempt from prosecution for causing pollution, but there is an inherent assumption that they do not cause pollution and so do not need to be controlled with permits.? There is growing evidence that surface water sewers do cause pollution due either to misconnections of foul drains or to taking polluted runoff from roads and other areas.? They contain “poisonous” and “noxious” matter including PAHs, pesticides, heavy metals and microplastics.

If all surface water sewer discharges were to be reported as pollution incidents then the number of incidents would rise from tens of thousands to millions.? That is not practical.

There will be a strong temptation for all parties to continue to ignore this problem.? But maybe the fact that they are not excluded from PIRPs will be the incentive to start to consider it.

The future

I think that there are two ways that this can go.

• The bill is amended so that if a storm overflow discharge is compliant with the discharge permit then it is not counted as a pollution incident for the purposes of the PIRP.? I sincerely hope that this is what happens.
• The worst case would be that the definition in the Water Resource Act is changed so that all discharges from storm overflows are pollution incidents and are a criminal offence.? This would be a disaster.? There is already lots of evidence, published by the government, that shows the massive cost and disruption of eliminating all overflow discharges.? This far outweighs the benefits of any improvement to the environment.

Including the use of emergency overflows in PIRPs is a sensible move and will work with the new Clause 3 to put more focus on their use.

For surface water sewer discharges, there is a long term need to bring them within the permitting regime; but that is not going to happen any time soon.? In the meantime I think that PIRPs should include all surface water outfalls to rivers where urban runoff is identified as a cause of poor river quality through the Reasons for Not Achieving Good data.