Environmental Law News Update

In this latest Environmental Law News Update, Christopher Badger and Charles Morgan consider the government’s 2019 Clean Air Strategy, financial penalties for a water company supplying polluted drinking water and an updated framework for the disposal of radioactive waste.

Stop Press – Clean Air Strategy 2019

The Government has this morning published its Clean Air Strategy 2019. The 109 page document is accompanied by a 9 page executive summary. It complements the Industrial Strategy, the Clean Growth Strategy and the 25 Year Environment Plan.

The strategy addresses the diffuse sources of air pollution which supplement that from the use of motor vehicles, including power generation and means of production. Coal-fired power stations will be phased out, as will oil and coal heating. Domestic use of coal and wood makes up 38% of primary emissions of fine particulate matter and also produces other pollutants. The Government will legislate to prohibit the sale of the most polluting fuels and proposes to promote the reduction of the use of non-methane volatile organic compounds in such household products as carpets, upholstery, paint, cleaning, fragrance and personal care products.

As for transport, further legislative controls are proposed affecting use of vehicles and mobile machinery and the activities of railways and ports will also come under scrutiny.

Farming produces 88% of UK ammonia emissions from storage and spreading of manures and fertilisers. The Government will enforce the adoption of low emission farming techniques and extend environmental permitting to the dairy and intensive beef sectors.

Standards of control of industrial emissions will also continue to be tightened.

The magnitude of the problems with air quality and recent legal enforcement measures have plainly driven and given a real sense of urgency to these wide-ranging proposals. The result should be a series of discrete and cumulative improvements, each of which might in less pressing times have been regarded as individually “not worth doing”, none of which might as a result have been done at all.

Drinking Water Pollution Leaves Bad Taste in Mouth

Northumbrian Water Ltd has been fined £499,725 by Peterlee Magistrates’ Court as a result of a supply of unfit drinking water to the inhabitants of Burnhope in County Durham in December 2016.

The pollution to the water in the South Moor Service Reservoir was caused by the inadequate curing of an epoxy resin used in maintenance works. Customers complained that the water smelled and tasted of (variously) medicine, plastics, chemicals or metals. NWL pleaded guilty to one offence of supplying water unfit for human consumption (s.70 of the Water Industry Act 1991) and one of failing to follow manufacturer’s instructions for use of a product (regulations 31(1) and 33(3)(b)of the Water Supply (Water Quality) Regulations 2016).

The company had recognised the need for proper curing by its deployment of dehumidifiers and heaters but had curtailed their use for financial reasons. NWL stated after the hearing that:“As a company we pride ourselves on providing great quality drinking water for our customers and it’s only right that the DWI hold us to account when these standards slip” and stressed that there had been no threat to public health.

Updated framework for the disposal of radioactive waste

On 19 December 2018 BEIS published its updated framework for the long term management of radioactive waste.

Clean energy is much sought after and nuclear technology is an important part of the transition to a low carbon economy. Yet despite the fact that the UK has been producing radioactive waste for decades, there is as yet no permanent solution on what to do with highly radioactive waste which is currently stored, mainly within existing nuclear sites.

The Government believes that the safest option is to dispose of this waste underground, in a series of vaults and tunnels, such that no harmful amount of radioactivity ever reaches the surface. It cites international consensus in the framework, that by constructing a disposal facility deep within an appropriate geological setting, instead of on or near the surface, that the geological formations will isolate and contain the radioactivity for a “very long period”. Once a GDF is closed, it would no longer require any human intervention and thereby avoids placing a burden on future generations to deal with this waste. No countries have adopted a permanent solution other than geological disposal.

The intention is that a suitable location for the “geological disposal facility” will be identified through a consent-based process with Government and its agencies working in partnership with communities. Communities that create a formal “Community Partnership” will have £1 million annually of investment funding made available to them by the Government, which will rise to £2.5 million annually for those communities that progress to the stage of deep borehole investigation. The Government also stresses that a GDF is a multi-billion pound infrastructure investment, with a consequential effect on jobs, the local economy and local transport facilities.

Relevant principal local authorities will have the final say on :

• Whether to seek to withdraw the community from the siting process;
• If or when to seek the community’s views on whether it wishes to host a GDF.

However, they must all agree before either step can be taken. This includes all district, county and unitary authorities that represent all or part of the area under consideration.

There is no suggestion in the framework that a GDF will be imposed on a community. Ultimately, before construction of a GDF can take place, there must be a “Test of Public Support”, in order to determine the final view of the community.

This is going to take years and years and will be controversial. Back in 1995 and 1996 there was a 66 day public inquiry into an appeal by United Kingdom Nirex Limited, Britain’s nuclear waste disposal body at the time, against the refusal of Cumbria County Council to grant planning permission for a ‘Rock Characterisation Facility’ that was intended to demonstrate the practicability of a deep underground radioactive waste repository. Stephen Hockman QC represented the district authority. The appeal was formally rejected by John Gummer, at the time Secretary of State for the Environment, early in 1997. During the proceedings NIREX was accused of “undue optimism” with “inadequate knowledge”, making it very difficult for anyone to predict the consequence’s of NIREX’s actions. The updated framework clearly intends to try and avoid previous pitfalls.

The framework can be found here

William Upton

Chambers is delighted to announce that William Upton is to be appointed Queen’s Counsel. The formal appointment will take place on Monday 11 March 2019.

NEW on our International Climate Change Blog

Could a Global Pact for the Environment improve the enforcement of international climate change norms?

In November 2018, the UN Secretary-General published a report on a Global Pact for the Environment. Frances Lawson discusses the initiative and it’s chances of success in a new post for our International Climate Change blog here

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