ISSUE 3 - ROLES, RESPONSIBILITIES AND LEGISLATION

WHO DOES WHAT AND WHY?

It's always good to understand who is responsible for what and why that's the case. In the last issue we pointed out that failure to comply with a trade effluent consent is a criminal offence. Clearly that means legislation is involved and where there is legislation there is scope for misinterpretation. In this issue we set out how trade effluent is governed by the Water Industry Act (1991) and its subsequent amendments - other legislation also applies to trade effluent but here we'll focus on the Act (let's call it the WIA or the Act). In this issue we'll introduce some of the legislative bits but not all of them as there are a lot and too much legislative description does not a good newsletter make. This isn't going to be an in-depth legal treatise either, rather it'll be more of a general summary of the intent of the legislation and the various responsibilities it assigns.

Disclaimers are always good

One of the purposes of this newsletter is (hopefully) to educate readers about trade effluent. We also think it's important to illustrate that with our own practical experience. Now, this is where there is scope for misinterpretation of a different kind. As well as summarising what water companies should do with trade effluent, we'll give examples of what they should not do. We won't in any way be denigrating, decrying, disparaging, attacking, defaming, besmirching or otherwise being calumniatory towards trade effluent departments and specialists. However, trade effluent officers (TEOs - we'll stick with that title for this issue) are human, and people make mistakes. A well-intended piece of advice can be misinterpreted, misjudged, be inappropriate or just be wrong. A sampling plan intended to help a client might make a situation worse. A misunderstanding about the scope of a TEO's remit could sour a relationship. Mistakes happen and in this issue we'll highlight some examples of where a TEO has made a mistake (and what that mistake was). To be clear, we have no axe to grind with TEOs. We're not trying to vilify them. We're simply pointing out some mistakes that manufacturers and consent holders need to be aware of and water companies need to address from time-to-time. If nothing else, you now know the word calumniatory exists so we've fulfilled the education remit.

Legislation

Trade effluent is governed largely by the Water Industry Act (1991) and subsequent amendments to it. We're calling that the WIA or the Act in this newsletter. Legislation is a famously dry topic and the word effluent appears in the WIA over 140 times (certainly in the copy I've got). We're not going to go through it all in this newsletter as I fear you'd all unsubscribe within five minutes. I'm sure the more legislatively-minded among our subscribers might have questions about what follows but for those who don't have that background settle down for a quick jaunt through the WIA and trade effluent.

General provisions

Section 94 of the WIA sets out the general provisions water companies must abide by when considering trade effluent capacity.

It shall be the duty of a sewerage undertaker in performing its duty under subsection (1) above to have regard—

(a) to its existing and likely future obligations to allow for the discharge of trade effluent into its public sewers; and

(b) to the need to provide for the disposal of trade effluent which is so discharged.

What this means is that water companies have a legal obligation to provide capacity for trade effluent now and in the future. In other words, they need to understand at all times what their regional trade effluent volume is, where it is, where it will treated, and how it will get there. This is the law. Water companies have to make adequate provision for trade effluent, for both the volume and the contaminant load. If a water company argues that they can't accept trade effluent at a particular wastewater treatment works now or in the future and there are no treatment concerns (e.g. the effluent is not inhibitory and the volume isn't excessive) then they're potentially on sticky ground (we've come across this before and successfully challenged the assertion).

The really legal bit

Section 118 sets out the legal requirement to obtain a consent from the water company before any effluent is discharged to a sewer. The really important part here is Section 118 sub-section (5), which states that:

If, in the case of any trade premises, any trade effluent is discharged without such consent or other authorisation as is necessary for the purposes of this Chapter, the occupier of the premises shall be guilty of an offence and liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; and

(b) on conviction on indictment, to a fine.

In other words, discharging trade effluent without a consent is illegal. You'll commit a criminal offence and can be subject to a fine, some of which can be very high.

Getting a consent

Section 119 of the WIA sets out the basic terms of an application for a consent but essentially says the volume, flow and composition must be specified in the application. In practice, water companies can reasonably ask for composition data that is as detailed as they require, especially if they believe the effluent contains something they're worried about.

Section 120 of the WIA is important, It states that when an application for a consent is made, the water company has two months to decide on the application and respond to the applicant. This doesn't always happen unfortunately and we've had clients who've waited far longer than two months for a decision. Also, if a water company decides early in that two month period that they will refuse to accept the effluent, they are not legally obliged to tell the applicant that before the two month period expires if they don't want to. This can cause frustrating delays in some cases.

Maintaining a consent

Section 121 sets out the need for a trader to have a manhole from which samples of only trade effluent can be taken safely. This does get overlooked on new-build premises and we've recently had a client redirect some domestic sewage that flowed into a manhole and prevented sampling uncontaminated effluent. This section also gives water companies the power to ask traders to install sampling and flow measurement equipment. Fines can also result from contravening the matters set out in this section, which governs the practicalities of measuring, record-keeping and what water companies require you, the trader, to do. In short, if they ask you to do something specific and you don't do it, you can be fined. In our experience prosecutions for these types of failure aren't as common as for breaches of consent limits. However, keeping accurate, diligent and detailed records of trade effluent volume and composition are essential and we recommend it happens at all times. As we said in Issue 2, treat trade effluent as another product you make and make sure it's "made" to the right standard (i.e. the consent).

Complaining

This is always a good summary to write. Section 122 of the WIA gives traders the right to complain (effectively to OFWAT) if they are unhappy with trade effluent decisions handed down by a water company or if the trader feels the water company isn't keeping up with the WIA requirements. We have worked on challenges with OFWAT and they can be very lengthy and long-winded. We have, however, successfully negotiated consent awards for our clients in tricky circumstances so the OFWAT appeal does work even if it is painfully slow. We'd only recommend it as a last resort, however, as OFWAT like negotiations between traders and water companies to be exhausted first. They also seem to like everyone to be exhausted after dealing with them as well (sorry OFWAT, I couldn't resist that one).

Varying a consent

If you apply for a new consent and are given it, the water company cannot vary it within two years unless you agree. So says Section 124 of the Act. However, there is a gap whereby a water company can try to vary consent if they think there is a danger to the public, their workers or the treatment works that arises from something that has happened before the two year period ends. Interestingly, the WIA notes water companies can be liable to pay compensation to traders if a variation is made within two years. However, the carrot of compensation is then removed because a water company doesn't have to pay it if they can prove the effluent variation that warranted the new consent could not have been foreseen when the permit was issued. We've had several discussions with water companies about this.

Trade effluent only, please

In the previous issue we introduced the definition of trade effluent. The WIA (Section 141) notes that the definition does not include domestic sewage. This means that any samples of trade effluent taken by anyone to determine compliance or calculate charges must exclude domestic sewage. It's OK to discharge a mixture of trade effluent and domestic sewage but trade effluent itself must be sampled at a point where it is not mixed with anything else. Again, we've come across this before and successfully pointed out sampling mistakes to water companies.

Section 141 sub-section (2) notes that effluent arising from agriculture, horticulture, fish farming or scientific research that is discharged to a public sewer is classed as a trade effluent and those types of premises are, under the Act, deemed to be trade premises.

A summary

So, perhaps it wasn't a jaunt but the preceding paragraphs set out some of the responsibilities for trade effluent as defined in the WIA. Trade effluent is subject to detailed legislation and it must be viewed in that context. We do encounter consent holders who don't appreciate its subtleties and detail and it is worth taking the time to understand those to ensure you are compliant but also to understand your rights. While water companies have many trade effluent rights under the WIA, they have to comply with them in order to be fair.

Mistakes happen

We promised you some practical experience of things we've water companies do that they shouldn't have done. I refer the honourable reader to the word calumniatory at the start of this issue and point out it is not what we are being here.

Random and representative

If a water company takes spot samples (i.e. not from an autosampler) for charging or compliance purposes, they should be done in a random and representative manner. We had a client whose production cycle peaked twice a day. At those times the effluent was highly concentrated but at others it was quite weak. A new TEO was only sampling at peak production times and, while the client was compliant with their consent, their average TE strength went through the roof and so did their costs. We pointed out that the sampling wasn't random and so it wasn't representative. The water company accepted this, started sampling at a variety of different times and the client's TE costs decreased.

Don't be too helpful

One TE officer recently suggested to a client that a DAF would be helpful in reducing the site's COD. He clearly thought he was being helpful but he wasn't because the client's COD is almost entirely soluble and wouldn't be touched by a DAF. A TE officer can tell you you are not compliant but should not tell you how to comply.

Legislation is not a tool for threats

This one might (or might not) raise some comments. We have seen TEOs use pseudo-legal threats to try to get traders to deal with an effluent problem quicker than they are. In one case we have a TEO who often uses the term "legal pack" when talking about their next steps. We've had a water company solicitor tell a client that he thought the client was being completely dishonest and couldn't be trusted (the ensuing retort by the client was NSFW but tremendously entertaining). We've had clients who have been "read their rights" by TEOs. In one memorable case a senior TEO uttered the words during a legal discussion "I'm right and you're not and there's nothing you can do about it". He was actually very wrong as he found out 30 seconds later from the client's solicitor. Water companies must have a trade effluent enforcement policy and must abide by it. Trying to use legislation as a stick with which to beat clients doesn't work and it would be wrong to say it doesn't happen.

Be reasonable

A long, long, long time ago we had a client who was being asked to reduce the concentration of a particular chemical in their effluent at two sites in different parts of the UK. At one site, the client's plant was in a heavily-industrialised area where several companies used the same solvent (you could smell it several miles away). Our client was targeted for reduction of that chemical but the site next door wasn't. We felt that was very unfair and it took a lot of discussions to come to a resolution (that all companies using that solvent on that industrial estate would have the same condition imposed). That wasn't the solution we asked for by the way but it was what the water company eventually did. In the other part of the UK at the second site, the local water company were a dream to deal with on the same problems we'd had 150 miles away. Being reasonable goes a long way.

Don't overstep the mark

A client with an unusual effluent was being asked by a water company to agree to a very rare consent condition. We, working with the client, proved the condition was unworkable and would not solve the problem. The client's discharge was, and always had been, utterly compliant with their consent and it was one specific aspect of it the water company weren't keen on (I can't tell you what it was as it will spoil a later issue). The problem actually derived from how the local wastewater treatment works responded to wet weather events, which isn't something a client can control. There were many fractious Teams call where the water company tried valiantly to claim illegality (there was none), blind the client with spreadsheets (as anyone who knows me can tell you, that's never a good idea and I swiftly worked out their calculations were wrong), claim their preferred option is very common (it's very rare) and on one occasion claimed that a problem caused by a tanker driver at the wastewater treatment works was somehow related to our client. At the root of this was a water company facing EA pressure to resolve a problem but not understanding how to do that or how to work with the trader. In the end we negotiated a much more manageable consent condition based on lab work by the client and diligent calculations and negotiations by us.

Final words

Trade effluent can be complicated. It's not simply asking for permission to discharge. It's all the other things to be aware of, all the roles, all the responsibilities and who has them. Water companies have many regulatory things they must do with TE and if they don't they leave themselves open to challenge. It's always wise for traders to understand that TE decisions can be challenged but we prefer the collaborative approach on that with water companies.