Chapter five
CONTROL OF POINT SOURCE POLLUTION
5.1 Unlike the other controls required by the Water Framework Directive controls on point source pollution - direct pollution from an identifiable source, e.g. the end of a pipe - already exist. The Control of Pollution Act 1974 (COPA) is the main legislative vehicle for point source pollution control. It provides a system whereby discharges of pollutants are subject to approval by SEPA.
The existing regime
5.2 The regulatory regime introduced by COPA is largely effective. It has been successful in bringing about improvements in the quality of Scotland's rivers, lochs and coastal waters. However, there are certain problems with COPA that need to be addressed.
5.3 The basic scheme established by COPA is fairly simple. Applications for consent to discharge are made to SEPA. SEPA are under a duty to give consent unconditionally or subject to conditions or it can withhold consent. If it withholds consent it must not do so unreasonably. If it grants consent it may impose any conditions it sees fit, as long as they are reasonable. There is effectively a general presumption in favour of granting consent. The conditions to a consent are driven in the main by the requirements of existing EU legislation on urban waste water treatment, dangerous substances, and the protection of bathing waters, shellfish waters and freshwater for fish. Generally, discharge consents are reviewable after a period of four years has elapsed from date of granting. They can be reviewed earlier with the consent of the discharger.
5.4 There are advertising requirements in respect of applications for discharge consents. Other provisions allow Scottish Ministers to call-in applications for consent for determination by themselves. Where this is not done there is provision for an appeal to Scottish Ministers against SEPA's decision on the basis that unreasonable conditions were imposed or that consent was withheld unreasonably.
5.5 The consent scheme is supported by a system of strict liability offences. There is a general offence of "causing or knowingly permitting poisonous, noxious or polluting matter or any solid waste matter" entering waters covered by the Act. Additional offences relate specifically to the discharge of sewage and trade effluent to water and land.
5.6 Sitting alongside COPA is the scheme for protection of groundwater - the Groundwater Regulations 1998. Introduced to implement the Groundwater Directive, the Groundwater Regulations provide a control regime for the regulation of direct and indirect discharges of specified substances to groundwater. The disposal or tipping of these substances in circumstances that might lead to an indirect discharge to groundwater is an offence unless the disposal or tipping is authorised. These regulations require prior assessment, and where appropriate prior authorisation of discharges to groundwater. A similar system, but not identical to COPA, of application, advertising, consent conditions and appeal operates. It is worth noting that the Water Framework Directive requires the Commission to present a proposal for a daughter Directive to tackle groundwater pollution by December 2002.
Directive's Requirements
5.7 The Directive requires that all point source discharges liable to cause pollution are subject to prior regulation. This regulation may take three forms: regulation to prohibit the entry of a pollutant to water; authorisation or licensing to regulate how particular discharges take place; and registration on the basis of general binding rules. The latter envisages that for certain types of discharge someone wishing to carry out a particular activity would simply have to register that they are so doing and comply with the legally enforceable rules that have been set down for how they should.
5.8 We will need to ensure that our regime to control point source pollution complies with the terms of the Directive. That will require us to ensure that all discharges of point source pollution are subject to regulation prior to the discharge being made. This should ensure better protection for the environment. We would be grateful for your views on the implications of this change.
Other Proposals for Reform
5.9 The interaction of COPA and the Groundwater Regulations is a problem area. There is overlap in a number of areas and we think a unified regime would be better for the regulator and the regulated alike. A common administrative system would provide clarity and should be less costly to run. Do you agree that a unified regime covering the regulation of discharges presently covered by COPA and the Groundwater Regulations would be an improvement?
5.10 We also believe that it would be a useful addition to the tools available to SEPA if a new offence of failing to comply with a condition attached to a consent was created. This would provide for the situation where SEPA had attached conditions to the consent not directly related to the discharge - e.g. to keep records. The breach of this condition might not result in direct harm to the environment but its observance would be a key component in ensuring protection in the longer term. Do you agree that this new offence would be useful?
5.11 As we have seen SEPA may attach to any consent such conditions as they see fit as long as they are reasonable. This flexibility has been very important but we believe it would be useful to make clear that a number of conditions are reasonable:
- Best Available Technology (BAT) - COPA is focused on water quality and has been interpreted as requiring conditions to be strictly related to water quality thereby excluding those related to process issues. In some cases focusing on the process (BAT) would be a more effective means of protecting the environment.
- Sustainable management of carrying capacity - the capacity of a particular water body to assimilate pollution is what determines whether a discharge consent is granted. At present, SEPA allocates up to 75% of the assimilative capacity to an individual consent. This leaves only 25% available for future applications. We believe a better balance between the needs of a current development and future demands on the carrying capacity is required.
- Connection to public sewer - the current regime requires SEPA to determine applications for discharge on water quality issues alone. They are not able to refuse consent for a private sewage effluent discharge on the basis that a connection to the public sewer is available. This causes problems because although an individual private sewer may not cause environmental problems, a number of them cumulatively may do so. We believe that SEPA should be able to refuse consent when a connection to the public sewer is available at reasonable cost to the discharger. Similarly, we propose that it should be able to specify in a consent that a discharge should be connected to the pubic sewer when this becomes available - again at reasonable cost.
5.12 There are also a number of changes to the administrative regime that would make the system work better for SEPA and those applying for consent. We would propose the following:
Advertising - the burden of advertising discharge applications falls to SEPA at present. We would propose that applicants be given this responsibility. This follows the model of most other environmental licensing regimes.
Review - at present there is no provision allowing the discharger to request a review of a consent. This often results in the discharger having to apply for a new consent even for minor amendments to the existing consent. We propose that the discharger should be able to apply for a review. There is also provision in the current system that a consent may not be reviewed within 4 years of its grant except with the agreement of the discharger. This causes difficulties for SEPA, especially in relation to production processes that are subject to rapid change. It has no precedent in other licensing regimes and, we believe, should be removed.
Call-in - COPA provides for a call-in mechanism. In essence, it requires that those who have made representations in relation to an advertised application may request that Scottish Ministers call-in the application for determination. This procedure is novel in environmental regulatory regimes and in practice very few cases are called in. We would be grateful for your views on the value of the call-in procedure.
Priority List Substances
5.13 The Water Framework Directive also requires controls on the emission of certain substances posing a significant environmental risk, such as lead and nickel, into the aquatic environment. In some cases this will require cessation of emissions within 20 years. See Annex 3 for more details.
Environment Regulation of Fish Farming
5.14 Fish farming is an industry that has developed very rapidly in Scotland in the last 20-25 years. The main species farmed are salmon and trout, although experiments with new species such as cod and halibut have taken place. The industry employs over 6,000 people, of whom some 4,700 are in the Highlands and Islands. It is, however, a potential polluter of the aquatic environment. Pollution can arise both from the uneaten food and faeces falling from the cages, and from the use of various chemical therapeutants in combating disease and parasite infestation.
5.15 The industry came into being after COPA came into force, and it has not been simple to apply COPA to fish farming. Indeed, COPA was designed to deal with end-of-pipe discharges and can only be applied to a situation in which process water has such an intimate connection with receiving waters with difficulty.
5.16 We are aware that the fish-farming industry itself has difficulties with COPA and the wider regulatory framework. On the other hand, concerns have been raised about the environmental impact of fish-farming and whether the regulatory regimes provide the necessary level of environmental protection.
5.17 We believe that the Water Framework Directive offers the opportunity to develop a more flexible and effective regulatory regime for fish farming. A combination of sector wide rules and standard licence conditions may offer a better regulatory approach to this rapidly changing industry. The licensing of chemical therapeutants is a source of particular controversy. COPA requires site-specific applications for each therapeutant. We believe that rules covering their application could be drawn up on a national basis. These rules could then be incorporated within site-specific consents.
5.18 The Scottish Executive is currently conducting a review into the regulation of fish farming. We hope to be able to incorporate the results of that review, at least in respect of environmental regulation, in the Bill implementing the Water Framework Directive.