Question 1 Introduction We will consider water and air pollution. We will look at what causes harm to each of these media. We will then move on to consider the legal provisions in place to counteract or prevent that harm. Water This is mainly concerned with inland and coastal waters and the quality of these water bodies. Water quality can be affected by natural events or by the actions of people. Firstly, natural events like heavy rainfall and flooding can create pollution problems from farm runoff. Conversely, drought can cause problems with pollutants being more concentrated. Generally, however, the main kinds of harm that lead to water pollution are caused by individuals or organisations. The harm is mainly as a result of discharge to water and can be as a result of intentional actions like littering, fly tipping, or dumping waste. The most common is discharges to water, from sewage works, the content of which is highly polluting. Other discharges to water can be from industries. This may involve toxic or organic pollutants being discharged into water. This can also involve Leachate from waste sites. Agricultural water pollution is another source of pollution, which can lead to pesticides or fertiliser being passed into water streams. In addition, farming can also contaminate groundwater, through the means of sheep dips. Agriculture is the number one polluter of water in the country [1] was the chilling finding of the Policy Commission on the Future of Farming and Food (2002). Other sources of water pollution is the often much publicised oil and fuel spills that happen from time to time. These may be caused by accidents. Accidents in the transporting of sometimes hazardous substances can also end up in the water streams or ocean. Damage through accidents may not involve toxic substances but a great deal of harm can be caused by innocent substances like milk and apple juice. The impact that these substances may have will vary depending on the amount of the substance being released and the location where they are discharged. It is important to note that we generally consider water pollution to arise where water is rendered unfit for use either for human consumption or aquatic life. The focus of this aspect of environmental law is not just pollution to water but also the setting of desired standards of water quality. Legal controls over water quality and pollution The body responsible for water quality in England is the Environmental Agency (EA). The main statutory instrument that applies is the Water Resources Act, 1991 (WRA, 1991). In addition, EC law is increasingly affecting the practices in England. The EC Water Framework Directive[2] is expected to have a large impact on all aspects of pollution control and water quality management. Indirectly, international law also applies, especially in terms of treaties and the UKs obligations under these treaties. We will now look into the legal controls more closely. Firstly it is necessary to consider the quality of the public water supply. This is controlled by the Water Industry Act 1991(WIA,1991), s67 and the Water Supply (Quality) Regulations 2000[3]. These provide that domestic water must be wholesome. Enforcement orders issued by the Secretary of State are the main means of enforcement, and fines may be issued against Water supply companies for breaching these provisions. The WIA, 1991, s70 makes it an offence to supply water that is unfit for human consumption.[4] Secondly, we will look at the WRA, 1991. This act put in place the requirement for consents to be obtained from the EA in the following circumstances:
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A discharge of trade or sewage effluent into controlled waters;
A discharge of trade or sewage effluent through a pipe from land into the sea outside the limits of controlled waters;
Any discharge where a prohibition is in force.
S85 of the WRA, 1991 provides that it is an offence to cause or knowingly permit a discharge. Having consent and observing the terms and conditions of the consent will be a defence to this provision. Trade effluent includes effluent from trade premises which includes agricultural, fish farming and research establishments. [5]Sewage effluent includes any effluent from sewerage works, but excludes surface water. [6] Discharge is not defined in the act and could conceivably cover accidental discharges into water as well as intentional discharges. Controlled waters are defined in s104 of the act and include most inland and coastal water. Inland water includes rivers, streams, underground streams, canals, lakes and reservoirs (even if they are temporarily dry). Groundwater which is water that is contained in wells and boreholes and in any underground strata are also within the definition. A river bed[7] and a man made ditch that drains into controlled waters[8] have both been held to constitute controlled waters. Streams that have been diverted from their original water course are also considered controlled waters.[9] A prohibition was introduced by the Water Act, 1989, s86, and it prohibited certain discharges. These include discharges of substances that are prescribed by regulations and include dangerous substances. The EA may make annual charges for discharge consents under the Environment Act, 1995[10]. This covers some of its costs incurred in managing water resources. Consents must be applied for in compliance with the WRA, 1991 and Control of Pollution (Applications, Appeals and Registers) Regulations 1996[11]. For the protection of groundwater, the Groundwater Regulations 1998 [12] set out the consent requirements. It is now necessary to consider water pollution. S85 (1) of the WRA, 1991 creates a general offence of causing or knowingly permitting any poisonous, noxious or polluting matter or any solid waste to enter controlled waters. Defences are set out in s88, and include discharge consents from the EA. In addition, s89 provides that in an emergency it is possible to discharge into controlled waters in order to avoid danger to life or health. If this occurs the EA must be informed of this as soon as reasonably practical and the discharger must also take reasonable steps to minimise pollution. This defence was successful in the case of Express Ltd (t/a Express Dairies Distribution) v Environmental Agency[13]. The offence relates to causing and knowingly permitting. Causing is subject to strict liability as no knowledge is required. In the case of Alphacell Ltd v Woodward [14] it was held that if the activities cause pollution, it is only necessary for the activities themselves to be intentional. Knowingly permitting is not subject to strict liability as knowledge is required. It is now important to mention The Water Framework Directive[15] which will be phased in over a number of years. It will require a fundamental change in existing law. Its man aims are to prevent deterioration and protect aquatic ecosystems; promote sustainable water consumption by protecting available water resources; progressively reduce discharges, emissions and losses of priority substances; reduce groundwater pollution and prevent further pollution an to provide good quality surface and groundwater. Finally, we will briefly consider international law, which mainly relates to marine waters. This is contained in international treaties the main one concerning the UK is from the 1992 OSPAR Convention, which made the Declaration of the International North Sea Conference and the Hazardous Substance Strategy. Parties to this convention are bound to make every endeavour to move toward the target of cessation of discharges, emissions and losses of hazardous substances by 2020. Air Most of the sources of air pollution are man made. The burning of some fossil fuels releases sulphur dioxide into the atmosphere. This occurs mainly from coal fired power stations and the burning of marine fuel on container ships and oil tankers. Another main contributor to air pollution is carbon emissions, mainly from vehicles, power stations and industrial processes. Indeed vehicles are responsible for releasing lead into the atmosphere through leaded petrol and also chemicals released from diesel emissions. Also, vehicle exhaust gases can release Volatile Organic Compounds into the atmosphere. Another source is the release of CFCs from aerosol sprays and refrigerants in fridges and air-conditioning units. These gases contribute to ozone depletion and therefore increase ultraviolet radiation levels. In addition the production and transporting of coal, natural gas and oil can emit methane. This can also be emitted from landfill sites. Natural processes causing air pollution are volcanic eruptions, wildfires and methane gas from herds of cattle. Air pollution can cause acid rain, which can kill fish, birds and plant life and even destroy buildings. Air pollution also causes climate change through greenhouse gas emissions. Finally, air pollution can also be harmful to humans as it has been linked to respiratory problems, cancer and brain damage. Now it is necessary to consider the mechanisms in place to control air pollution. Legal controls to control and prevent air pollution. The first known legal controls over air quality took place in 1273 when Edward I introduced the first controls over smoke in London. Today the law that is applicable is a combination of international, EC and national law. As air pollution creates international problems like transboundary pollution, ozone depletion and more latterly, climate change, international negotiated agreements are a main source of the law in this area. The first main case involving Transboundary pollution was the so called Trail Smelter case [16] which concerned pollution from a Canadian smelter which caused destruction to crops and forests over the border in the US. An attempt to control air pollution between neighbours was The Geneva Convention on Long-Range Transboundary Air Pollution in 1979.The treaty came into force in 1983 and sets out principles of cooperation and joint research. Ozone protection has been dealt with by the 1985 Vienna Convention for the protection of the Ozone Layer. Climate change has been addressed by the 1992 Framework Convention on Climate Change. As a result of these conventions, protocols have been developed to combat the problems identified, in the form of specific measures to combat the problem. Likewise, the EC has now become a major force in determining air quality standards. This has been achieved through a series of directives specifying air quality limits for particular substances and controlling emissions from transport, industry and power stations. In addition the EC has voluntary agreements with car manufacturers and EU wide emissions trading schemes. The Secretary of State for the Environment, Food and Rural Affairs has a legal duty to comply with the European air quality standards. This has been delegated to the Environmental Agency and local authorities which operate pollution control powers. The National Air Quality Strategy is the main policy in this are of the law. It contains two standards for identified pollutants, namely a general target standard and an alert threshold. The general standard forms a long term objective for policies and legislation. The alert threshold triggers the need for specific remedial action when it is exceeded. Under the strategy local authorities undertake air quality assessments and take action where the objectives are not being met. They also have control over emissions of dark smoke and fumes under various statutes. Finally, the UK has adopted economic instruments to control greenhouse gas emissions. This is in the form of the Climate Change Levy and the UK Emissions Trading Scheme. Other voluntary agreements like Climate Change Agreements have been adopted. Question 2 Report: Prepared by Legal Environmental Consultants Limited To: The Board of Directors of Transglobal Enterprises plc Topic: Environmental Legal Aspects of British Metal and Waste Corporation plc (MBWC) This report will cover two specific problems identified. It will deal with each separately. (a) The first part of the report examines the planning permission to extend the use of Gawshope Quarry. This is presently the subject of a High Court application by a local pressure group who wish the permission to be quashed on the following grounds:- firstly, the wrong criteria were used in granting the permission in relation to EC and UK law and secondly, that the National Waste strategy had been ignored. It is necessary to consider the grounds of the appeal, to estimate the likelihood of its success. Firstly, in regard to EU and UK law. The Landfill Directive[17] concerns the design, operation and aftercare for landfill sites. It set targets for the reduction of the amount of biodegradable municipal waste put into landfills by imposing three stages of reduction. The Landfill Regulations (England and Wales) 2002 [18] implemented the requirements of the directive to UK law. Secondly, the National Waste Strategy (NWS) is contained in Waste Strategy 2000 for England and Wales[19]. It was produced as a result of the Environment Act 1995 inserting a requirement to produce a NWS under s44A of the Environmental Protection Act 1995. The overall aim of the NWS is to make decisions in line with the Best Practicable Environmental Option (BPEO) for particular wastes. Article 8(b) of the Landfill Directive (99/31) places an obligation on member states to ensure that any landfill project is in line with the NWS. This must be considered when planning permission is applied for. In the case of R (On the application of Blewett) v Derbyshire CC[20] the facts were analogous to the present case. Planning permission was granted to extend a landfill site and a local resident applied to court to have it quashed on the grounds that the local authority had failed to assess whether the proposed landfill was the BPEO for waste disposal. The Court of Appeal found that the policies in the Strategy were not determinative and it was not required before granting planning permission that the BPEO is achieved. The reason for this is that the BPEO is not overriding. In this case the Court of Appeal refused to interfere with the High Courts findings that the local planning authority had failed to demonstrate that they had given sufficient weight to the BPEO. Conclusion Without knowing the particular facts of the application for an extension of Gawshope Quarry, it is difficult to advise on the chances of success. Suffice it to say, that in the light of Blewetts case it seems clear that a planning authority is required to understand the policies in the NWS and attach significant weight to the achievement of these policies. It should then consider if there are more important considerations which outweigh the attainment of these objectives. (b) This part of the report concerns the pending prosecution of BMWC for alleged offences under the Water Resources Act 1991. The steelscale plant in Cumbria had an accident and this resulted in discharges which blocked a stream. This caused the course of the stream to be altered and flooding occurred. In addition contaminants in the discharge caused chemical levels in the stream to rise beyond safety levels under drinking water legislation. Under the Water Resources Act, 1991 s85 (1) it is an offence to cause or knowingly permit any poisonous, noxious or polluting matter or any solid waste to enter controlled waters. We will look at each element of this section to determine if an offence has been committed. Firstly, controlled waters are defined in s104 of the act and include most streams in the UK including the stream in question. Secondly, there is no definition in the act of poisonous, noxious or polluting matter. In the case of R v Dovermoss Ltd [21] polluting was given the very wide meaning of the potential to cause harm to animals, plants or those who use the water. Actual harm is not necessary. The fact of the pollution is what is prevented in this act i.e. the discharge or entry of polluting matter into the stream. On the face of it contaminants in this particular discharge would be considered polluting at the very least if not poisonous or noxious. Thirdly, the requirement of causing must be considered. This lays down a requirement of strict liability as no knowledge is required. An important case is the case of Alphacell Ltd v Woodward [22] where it was held that Alphacell was guilty of causing pollution merely by carrying on the activity that caused the pollution. All that is necessary is the intention to carry on the activities, and then to show a causal link between the activities and the discharge. In our case, BMWC did carry on the activity that caused the pollution. It may be possible to argue that its activities were not the cause of the pollution. In Empress Car Company (Abertillery) Ltd v National Rivers Authority [23] Lord Hoffman stated that the true common sense distinction is, in my view, between acts which although necessarily foreseeable in the particular case, are in the generality a normal and familiar fact of life, and acts or events which are abnormal and extraordinary. Whether the accident in this particular case could be foreseeable would depend on what kind of accident it was and whether it was normal or acceptable accident in the steelscale industry. Fourthly the requirement of knowingly permitting will briefly be considered. This occurs where a person knowingly permits and applies when knowledge of the activity occurs and no action is done to prevent the harm. Company directors can be guilty of water pollution offences under this section in addition to any charges brought against the company. This will occur when there is consent, dishonesty or neglect on the part of the directors of the company. This is under s217(1) of the Water Resources Act, 1991. In addition, the company can also be held vicariously liable for the acts of its employees, as was held in the case of National Rivers Authority v Alfred McAlpine Homes East Ltd[24] in regard to offences under the WRA, 1991. There are defences to the provisions of the above section. One of these is if the offender is the holder of discharge consent from the EA, and is acting in accordance with that consent. Another defence is if the offender holds an IPC authorisation or an IPPC permit. A third defence is where the offender holds a waste management licence or waste disposal licence unless the offence is discharging trade or sewerage effluent or where a prohibition is in force. Conclusion It seems that the requirements of strict liability would make the chance of a prosecution against the BMWC succeeding. It should be investigated whether any of the above defences are available to BWMC. If not, it seems likely that any prosecution would succeed against the company. Bibliography
Bell, S and McGillivray, D: Environmental Law (6th Edition). Oxford University Press, 2006.
www.lawtel.co.uk
www.westlaw.co.uk
www.defra.gov.uk
www.ukela.org
Footnotes
[1] Farming and Food: A Sustainable Future (2002), p.68. [2] (2000/60/EC) [3] SI 200/3184 [4] R v Yorkshire Water Services Ltd [2002] Env LR 18 [5] WRA, 1991, s221 [6] WRA, 1991, s221 [7] National Rivers Authority v Biffa Waste [1996] Env LR 227 [8] Environmental Agency v Brock plc [1998] Env LR 607 [9] R v Dovermoss Ltd [1995] Env LR 258. [10] S41-42 [11] SI 1996/2971 [12] SI1998/2746 [13] [2003] Env LR 29 [14] [1972] AC 824 [15] 2000/60/EC [16] US v Canada (3 RIAA 1907 (1941) ) [17] 1999/31/EC [18] SI 2002/1559 [19] Cm 4693, 2000 [20] [2005] Env LR 15 [21] [1995] Env LR 258 [22] [1972] AC 824 [23] [198] Env Lr 36 [24] [1994] 4 All ER 286
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