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Session 2008 - 09
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Public Bill Committee Debates

The Committee consisted of the following Members:

Chairman: Mr. Joe Benton
Ainger, Nick (Carmarthen, West and South Pembrokeshire) (Lab)
Beresford, Sir Paul (Mole Valley) (Con)
Cairns, David (Inverclyde) (Lab)
Cunningham, Mr. Jim (Coventry, South) (Lab)
Farron, Tim (Westmorland and Lonsdale) (LD)
Horwood, Martin (Cheltenham) (LD)
Jenkin, Mr. Bernard (North Essex) (Con)
Kumar, Dr. Ashok (Middlesbrough, South and East Cleveland) (Lab)
McIntosh, Miss Anne (Vale of York) (Con)
Morden, Jessica (Newport, East) (Lab)
Norris, Dan (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)
Redwood, Mr. John (Wokingham) (Con)
Watkinson, Angela (Upminster) (Con)
Whitehead, Dr. Alan (Southampton, Test) (Lab)
Wood, Mike (Batley and Spen) (Lab)
Wright, David (Telford) (Lab)
Mark Oxborough, Committee Clerk
† attended the Committee

Seventh Delegated Legislation Committee

Wednesday 21 October 2009

[Mr. Joe Benton in the Chair]

Draft Groundwater (England and Wales) Regulations 2009
2.30 pm
The Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs (Dan Norris): I beg to move,
That the Committee has considered the draft Groundwater (England and Wales) Regulations 2009.
It is a great honour to serve under your chairmanship, Mr. Benton. I start by giving the apologies of the Under-Secretary of State for Environment, Food and Rural Affairs, my hon. Friend the Member for Ogmore (Huw Irranca-Davies), who is stuck on a motorway near Swindon and unable to be here. I welcome the opportunity to introduce these draft regulations, even if it is one that I was not expecting a few moments ago.
The water framework directive of 2000 envisaged a new groundwater directive to clarify the WFD’s objectives for groundwater, and a new directive was agreed in 2006 to replace the 1980 groundwater directive. The UK aimed for simple, transparent measures to protect groundwater from pollution, for locally determined risk-based standards and for targeted monitoring, and aimed to avoid measures that would be disproportionately costly in relation to the environmental benefits achieved. I am pleased to report that potentially ineffective and costly EU-wide standards were avoided. The impact assessment indicated a cost-neutral outcome in relation to action already required under the WFD.
The 2006 directive adopts existing EU values for controls over nitrates and pesticides. It provides for member states to determine national groundwater standards, the way in which those should be used to assess groundwater body status, and the identification and reversal of pollution trends. Those elements are being transposed separately as part of the WFD implementation. The regulations before us transpose article 6 of the directive, which makes operational the WFD objective of preventing or limiting the input of pollutants to groundwater. It also distinguishes the substances that are to be prevented from being put into groundwater from those that are to be limited in groundwater. Sensible exemptions facilitate a practicable approach.
Currently, there are groundwater protection measures, transposed from the 1980 directive, in the Water Resources Act 1991 and the 1998 groundwater regulations. The new regulations introduce no fundamental changes to groundwater protection. Nevertheless, it is necessary to amend the 1998 regulations to transpose article 6 while respecting the provisions of the 1980 directive, which remains in force until December 2013. Consultation on transposition was completed last summer. Responses indicated broad agreement with the proposed approach.
The regulations are as follows. Regulation 1 deals with coming into force and regulation 2 updates definitions. In particular, a registration or disposal under the Radioactive Substances Act 1993 will become a permit for groundwater purposes. The terms “hazardous substance” and “non-hazardous pollutant” effectively replace the list 1 and list 2 dangerous substances to be controlled. Regulation 3 explains the meaning of “hazardous substance”; such substances are essentially those that are persistent, bio-accumulative and toxic, and the prescriptive list 1 comprises a large subset of them. Member states must identify hazardous substances, and that will be the responsibility of the Environment Agency in England and Wales.
Mr. John Redwood (Wokingham) (Con): Is the Minister saying that the list we have before us, which is not complete, could be greatly expanded by the agency? Or is he thinking of only detailed and minor additions?
Dan Norris: I think that the latter part of the right hon. Gentleman’s question is the answer. The list will undergo minor changes but it will allow a degree of flexibility.
Regulation 4 provides that non-hazardous pollutants cover all other pollutants. Those new terms potentially embrace a wider range of pollutants, but in practice the agency will identify additional substances where they are problematic.
Sir Paul Beresford (Mole Valley) (Con): The explanatory notes explain that the regulations
“bring under control previously exempted discharges of less than 2 cubic metres per day from properties”
with septic tanks. A large proportion of my constituency is a rural area with septic tanks. What will that mean for those constituents?
Dan Norris: I have a septic tank in my home. As I understand the matter, from my briefing, the measures will make little difference to the vast majority of people with septic tanks. Perhaps the hon. Gentleman would like to ask me a more specific question when we come on to that subject later. In general terms, the measures will make little difference to them, if any.
Miss Anne McIntosh (Vale of York) (Con): Did the Department ensure that householders with septic tanks, or their representatives, were consulted? That is the category that that we have identified as being most dramatically affected by the proposed regulations, if we set apart the issue of radioactive and hazardous substances. I should like assurances that those householders were directly consulted on them.
Dan Norris: I thank the hon. Lady for that question. If I may, I will come back to that point once my officials have checked it. I do not know the answer off the top of my head, and I would not want to mislead her.
Regulations 5 and 6 reflect the welcome fact that the 2006 directive provides for sensible exemptions such as: unavoidable accidents; exemptions from the need for a permit, such as very small inputs that would not affect groundwater quality; and inputs that cannot be prevented without risk to human health or that would involve disproportionate cost in relation to the contaminated ground.
Under the 2006 directive, disposals of radioactive substances and discharges from septic tanks are no longer exempt and so will now be subject to permitting under the regulations. The controls relating to both radioactive substances and discharges from septic tanks are expected to enter the environmental permitting regulations in 2010. As for discharges from septic tanks, the current exemption will be carried over in relation to discharges that amount to less than 2 cubic metres per day, but from 1 January 2012, it will be necessary to register such discharges with the Environment Agency, subject to basic rules of operation and maintenance.
Article 6 of the 2006 directive requires us to prevent the input into groundwater of hazardous substances and to limit the input into groundwater of non-hazardous substances to avoid pollution. Regulations 7, 8 and 9 put that into practice, and guidance from the Department for Environment, Food and Rural Affairs will clarify what is meant by the requirement in regulation 8 to prevent the input of hazardous substances. That is an important objective, but it will not always be achievable. European Commission guidance explains that in this context, “prevention” means taking all necessary and reasonable measures; “reasonable” means technically feasible and without involving disproportionate cost. In other words, we must do whatever we can, while recognising properly the inevitable limitations that apply to absolute prevention.
Regulation 10 sets out the circumstances in which the agency may permit inputs of pollutants, given a range of practical considerations. Those are valuable exemptions that offer greater flexibility than hitherto. Regulation 11 requires investigations to be made, and technical precautions to be taken, to ensure that a grant of a permit is made only in accordance with the requirements. Under regulation 12, future reviews of permits will be carried out as necessary, rather than on the current statutory four-yearly basis; the regulation should thereby save resources. In practice, such reviews will normally follow the water framework directive’s six-year review cycle for the publication of river basin management plans.
Regulation 13 carries over the offence of causing or knowingly permitting an unauthorised discharge, which was established in the Water Resources Act 1991 and the Groundwater Regulations 1998. As before, exceptions are made for highway drains— there are too many to permit individually—and for discharges of less than 2 cubic metres a day from septic tanks. In both cases the agency may serve a prohibition notice where problems arise. Regulation 14 carries over relevant defences.
Regulations 15 and 16 provide for the transfer and administration of permits, and deal with conditions, reasons for refusal and for appeals against refusal, and the variation or revocation of permits. Regulation 17 enables the agency to serve a notice requiring information, and regulation 18, which is similar to current powers, enables the agency to prohibit an activity that might lead to the input of a pollutant to groundwater, while regulation 19 allows the right to appeal.
Regulation 20 carries over the provision in the 1998 groundwater regulations that allows Ministers to approve codes of good practice that give guidance on compliance with the regulations. Such codes of practice are also to be taken into account by the agency when serving a prohibition notice. Regulation 21 requires the agency to record details of permits and other details on a public register.
Regulations 22, 23 and 24 update the standard penalties for offences, and regulation 25 revokes the 1998 groundwater regulations. As for regulation 26—it does not exist; I am just checking whether anyone is still listening now that I have listed all 25 regulations.
It is the intention to consult on draft guidance to the Environment Agency once the regulations are made. The regulations will be short-lived, in that they will be absorbed into the proposed environmental permitting regulations in 2010. However, the transposition date for the 2006 directive means that the regulations are required now to bridge the gap. I commend the groundwater regulations as a good example of successful European Union negotiations contributing to good operational arrangements; that reflects DEFRA’s approach to better regulation.
On the question asked by the hon. Member for Vale of York, regulations in 2008 explained that septic tank registers were exempt until 1 January 2012. Environmental permitting regulations were also consulted on in the summer of 2009. No substantive comments were received in either case.
The consultation on the transposition of article 6 of the 2006 groundwater directive, which took place in May 2008, outlined the changes to the 1998 groundwater regulations that would be necessary to accommodate the requirements of the water framework directive and article 6 of the 2006 groundwater directive while sustaining the requirements of the 1980 groundwater directive. The consultation posed a series of questions about the changes anticipated. The explanatory memorandum to the regulations before us records: the main changes to groundwater controls that are anticipated as a result of transposing the 2006 groundwater directive; the issues on which stakeholders were asked for views; and a summary of the 31 responses received.
2.42 pm
Miss McIntosh: It is a pleasure to appear under your chairmanship, Mr. Benton, and I welcome you to the Committee. I also welcome the Minister. We are grateful to him for stepping into the breach. I have spoken to his hon. Friend the Under-Secretary of State for Environment, Food and Rural Affairs, the hon. Member for Ogmore, who alerted me to the fact that he would be absent today. I am familiar with the way in which travelling back from EU institutions can be disrupted.
The Minister is in a difficult position because the subject of the regulations is not directly part of his brief, but our decision on whether to allow the regulations to proceed will depend on his answers to our questions. I am grateful for his answer to the question I put in an intervention. We are monitoring the Department for Environment, Food and Rural Affairs closely in relation to septic tanks, and it would be useful to discuss the issue this afternoon.
Does DEFRA have a dedicated unit or team to negotiate such matters, or does it work on an ad hoc basis as EU negotiations proceed? As a former MEP, I have first-hand experience of dealing with matters in the European Parliament, so I am familiar with the process there. When we were in power, the Conservatives were accused of gold-plating directives. We should avoid gold-plating where possible, so we need to understand how DEFRA negotiates the regulations. What is the precise process in DEFRA for negotiating not just these regulations, but EU regulations generally, of which there are many?
I listened carefully to the Minister’s answer to my question, and I am still not completely satisfied that the householders that my party has identified would not suffer the most damage from the regulations, were they to be passed. Like my hon. Friend the Member for Mole Valley, I represent a deeply rural area and, although I am pleased to say that I do not have a septic tank, I probably represent proportionally more septic tank owners than MPs in many other parts of the country. My hon. Friend and I therefore have an interest in that subject. My immediate concern is that households with septic tanks will incur personal expense as a result of the regulations. I am alarmed that there is no mention in the explanatory memorandum of responses being received from householders, as they will be the most directly affected, with the cost coming out of their private household budgets. I shall be grateful if the Minister can satisfy me on that point. I hope that he can also provide reassurance that the regulations are not unduly cumbersome and bureaucratic, and that they will not have a harsh and disproportionate impact in rural areas. That is certainly the impression I have been left with after reading them.
Regulations 13 and 17 create a criminal offence in this area for the first time. The Minister went through the definitions—radioactive substances, hazardous substances and non-hazardous pollutants—and the Committee is grateful to him for that, but I am particularly concerned about individual householders, rather than industries. I am perhaps not as familiar as hon. Gentleman is with the regulations, but it strikes me that they will create a criminal offence, the implications of which will be great for individuals.
What guidance has DEFRA issued to the relevant interested parties and industries about the regulations, particularly on the changes to the substances that would have to be considered? Is it intended to publish the code of practice and the DEFRA guidance that will be issued to the Environment Agency? As my hon. Friend the Member for Mole Valley said, we in this Committee are seeing only part of the story; the whole story will be set out in the code of practice and the guidance. I would like to have the opportunity to scrutinise that guidance. If it has already been published, perhaps the Minister will direct us to it. Will the interested parties have access to the guidance? What feedback was there from the interested parties during the consultation? The explanatory memorandum that sets out the responses is very thin.
The Minister took us through the regulations, but he did not make the case for what he believes to be the main benefits of changes in the groundwater regulations. What effect will the regulations have on the implementation of the water framework, and for how long they will be in effect? I understand that they will be in effect for only a short time before being superseded by other regulations. I also understand that legislation is already in force, so why are we considering the regulations today? If it was the Committee’s wish for the regulations to proceed, when will they enter into force and for how long will they apply?
The explanatory memorandum states that the Department is proceeding with a “risk-based approach”. Were householders informed about the risk relating to household sewage tanks? Is only sewage affected, or is waste water from kitchen and other appliances covered? Has the Department considered the impact on major developments of the need to put in new septic tanks?
The regulatory impact assessment is disappointing, but it flags up one or two problems. Article 17 of the water framework directive sets out to achieve “good chemical status”. Where is there a definition of “good chemical status”?
Paragraph 7.1 of the explanatory memorandum states:
“The 2009 Regulations provide for the prevention of the input of hazardous substances and limitation of the input of non-hazardous pollutants. They bring under control previously exempted discharges of less than 2 cubic metres per day from properties not connected to the sewerage system (essentially septic tanks).”
What are the implications of that exemption no longer pertaining?
We understand from the explanatory memorandum that only 31 responses to the consultation were received. It strikes me that the responses from those directly affected were not as forthcoming as they might have been. Farm and land managers are said to have a parallel interest. Were they directly consulted as well? What will the impact and relationship to the nitrates directive be?
The explanatory memorandum states that
“Media attention has been minimal.”
I feel a Daily Mail story coming on if it and other national and local newspapers, become aware that the regulations will affect many dwellings in the country, which might not be aware that—if you will pardon the pun, Mr. Benton—they are coming down the pipeline.
The explanatory memorandum explains that
“it is an important legal instrument since it regulates the protection of an invaluable resource for drinking water supplies.”
It continues:
“The ending of exemptions for radioactive substances and septic tanks should be understood in the context of the risk-based approach of the WFD.”
I assume that the approach is not just risk-based, but science-based. Will the Minister confirm that the risk has been calculated in a scientific way?
In reference to the codes of practice, the memorandum states that they
“will continue to be an important and effective way of imparting good practice and assisting operators to comply with the Regulations.”
Is the Minister minded to publish them?
What further representations have been made, perhaps after the consultation period finished? What opportunities were there to raise issues at the time the directive was adopted? That is extremely important. Having been on the other side—in the European Parliament—I know that such matters tend to be considered in the round, not in detail. Were any of the issues—particularly those relating to septic tanks and non-hazardous pollutants that might impact on farmers and land management—raised and debated with ministerial colleagues of other member states?
I am not entirely sure what the cost of implementation will be. I have carefully read the impact assessment, but it seems to be blank on that point. Perhaps I am not reading it correctly, but it is incumbent on the Minister to share with the Committee what the cost of the implementation will be, so that we consider it today.
How many homes will be affected? How many farms? How many other properties—some commercial, no doubt—will be affected? How is the directive applied in other member states? We want to know that we are not gold-plating the directive’s provisions in the draft regulations.
Returning momentarily to the impact on rural areas, I should like the Minister’s assurance that the directive will not impact unduly harshly on rural areas. In England, 30 per cent. of the public water supply comes from groundwater, whereas in Wales the figure is only 3 per cent. However, areas of water stress tend to be concentrated in the south-east of England—including East Anglia and the area that my hon. Friend the Member for Mole Valley represents—and in such areas 70 per cent. of the public water supply comes from groundwater. Obviously, the regulations will impact particularly harshly in the most densely populated part of the country.
What assessment has the Minister made of the cost implications? The Committee is owed that information. Can he assure us that we are not creating a cumbersome bureaucratic procedure? Are we the only country that is creating a criminal offence under the provisions of regulations 13 and 17? Did he receive any consultation responses on that? Can he assure us both that the proposed measures are not disproportionately expensive and that they are technically feasible? Can he set out the clear, environmental and social economic benefits? Groundwater is obviously an important resource and it should not be polluted, so there is some measure of support, subject to the Minister’s responses today.
In England and Wales the majority of sewerage systems are of the combined design, with a single sewer pipe network used to collect and convey foul sewage and surface water flows. In all sewerage systems, the raw sewage flows tend to be supplemented by groundwater seepage into the sewers through infiltration. There may also be some loss of sewage through leakage into the surrounding ground through exfiltration. The Environment Agency’s 1998 document “Policy and Practice for the Protection of Groundwater”, noted that the sewerage system is one of the many potential sources of contamination that pose a risk to groundwater.
Although leaking sewers can be a contributory factor to the poor quality of urban groundwaters, according to a 2008 Ofwat briefing, the general impact of sewer leakage on the underlying groundwater quality is not great, so why is the exemption being lifted, perhaps placing disproportionate burdens on those who, like the Minister, have septic tanks? Ofwat said at the time that it would not want the amended legislation to be interpreted in such a way that it triggered massive and expensive programmes aimed at sealing sewers if the benefits did not justify the costs. I therefore seek an assurance that the costs will not be disproportionately great and that implementation is technically feasible.
Finally, what will the application process for permits be? Will it be covered by the Environment Agency’s current budget? Will the agency be in a position to prosecute the criminal offences that may flow from the regulations?
3 pm
Martin Horwood (Cheltenham) (LD): May I apologise for being a few minutes late? Broadly speaking, we Liberal Democrats welcome the regulations to control groundwater pollution. They are welcome proof of the value of co-ordinating European action to control pollution and at least ensure that British businesses, including British agriculture, face a level playing field—or perhaps just a level field—in terms of the impositions and restrictions placed on them for the public benefit.
It is right that the Environment Agency should continue to be the effective co-ordinating body for dealing with environmental pollution. There is a growing trend towards having a single agency, so that it is more obvious where the buck stops. We would probably go further and say that the Environment Agency should have greater powers, so that it can be identified as the buck-stops-here agency for environmental pollution, with perhaps more powers to direct other agencies such as local authorities and water companies. The hon. Member for Vale of York mentioned sewerage as a key issue in groundwater pollution, and that is the responsibility of water companies, not the Environment Agency, in most cases. Pollution could also include fly-tipping and other threats that might come under the remit of local authorities.
There is scope for more authority and power for the Environment Agency, but with the increasing trend to consolidate power in agencies such as the EA comes an increasing obligation to consult stakeholders. I am slightly worried about the obligations on the Environment Agency to consult stakeholders such as farmers on a wider, proactive, public basis before further amendments or changes are made to the lists and before detailed implementation of the regulations.
We certainly welcome tough penalties for crimes involving discharge into groundwater. There may be some question, as there has been in the past, about whether the penalties always suit the crime. There was the famous case of the River Mease in Leicestershire, where pollution by Severn Trent Water, which has a turnover of £1.5 billion, killed 18,000 fish and required a considerable remedial exercise. The company was fined £13,500, which is towards the top end of an MP’s repayment of expenses these days.
Angela Watkinson (Upminster) (Con): Speak for yourself.
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