1.5.1 Introduction
Details of the legislative framework and guidance relevant to containment within the UK are presented in Appendix A1 (see Tables A1.1 and Table A1.2).
In the UK various government agencies enforce UK regulations relevant to containment and pollution prevention, these include:
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Environment Agency (EA) for England 9
Natural Resources Wales/Cyfoeth Naturiol Cymru (NRW) for Wales 9
Environment and Heritage Service (EHS) for Northern Ireland
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Scottish Environment Protection Agency (SEPA) for Scotland 9
Competent Authority (CA) for COMAH sites 9
Health and Safety Executive (HSE).
Those UK organisations generally responsible for environmental regulation, ie the EA, NRW, EHS and SEPA, are collectively referred to as the ‘regulator’ throughout this guide.
In the UK business owners are responsible for checking the legal requirements that apply to their business activities. Online business advice and support, which help identify regulations that are applicable to various types of business or activities are provided on regulators’/government websites:
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For England and Wales: www.environment-agency.gov.uk/business/default.aspx 9
For Northern Ireland and Scotland: www.netregs.gov.uk
In addition, there is much good advice contained in the series of pollution prevention guidelines (PPGs) published jointly by the EA, NIEA and SEPA at (see Websites box at the end of the chapter).
Many sites will be covered by regulations whose focus is considerably wider than water and ground pollution. This may include air pollution and risk to humans. A brief summary of the key regulations are set out below, with reference to Appendix A1 for further details.
1.5.2 Control of Major Accident Hazards Regulations (COMAH)
COMAH implement the Seveso II Directive (Council Directive 96/82/EC), except for land use planning requirements, which are implemented by changes to planning legislation. Their main aim is to prevent and mitigate the effects of those major accidents involving dangerous substances that can cause serious damage/harm to people and/or the environment. COMAH regard risks to the environment as serious as those to people.
COMAH apply mainly to the chemical and petrochemical industries. Other businesses to which they apply include those storing fuels or alcoholic spirits, having large warehouses or distribution facilities, or manufacturing and storing explosives. They apply where threshold quantities of dangerous substances identified in the regulations are kept or used. There are two thresholds known as COMAH lower tier and top tier. To determine whether these Regulations apply, it is necessary to determine if there are sufficient dangerous substances to exceed the lower threshold quantities defined in the regulations.
The regulations are enforced by a COMAH Competent Authority (CA) comprising HSE and the EA in England, HSE and NRW in Wales, and HSE and SEPA in Scotland. Operators will generally receive a single response from the CA on all matters to do with COMAH.
COMAH ensure that businesses and duty holders:
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take all measures necessary (AMN) to prevent major accidents involving dangerous substances 9
limit the consequences to people and the environment of any major accidents that do occur.
AMN have to be in place so far as is reasonably practicable (SFAIRP) to prevent environmental harm and in particular a major accident to the environment (MATTE). AMN are interpreted to require use of good practice for pollution prevention and the CA considers these to be in place when the risks are demonstrated to be either ‘broadly acceptable’ or ALARP. As this is an important concept, the HSE’s definition of ALARP is repeated here verbatim:
“ALARP, ‘as low as reasonably practicable’, enables the regulator to set goals for duty-holders, rather than being prescriptive. This flexibility is a great advantage but it has its drawbacks too. Deciding whether a risk is ALARP can be challenging because it requires operators and regulators to exercise judgement. In essence,
making sure a risk has been reduced ALARP is about weighing the risk against the sacrifice needed to further reduce it. The decision is weighted in favour of safety because the presumption is that the duty-holder should implement the risk reduction measure. To avoid having to make this sacrifice, the duty-holder must be
able to show that it would be grossly disproportionate to the benefits of risk reduction that would be achieved.
Thus, the process is not one of balancing the costs and benefits of measures but, rather, of adopting measures except where they are ruled out because they involve grossly disproportionate sacrifices.”
The HSE provides a suite of ALARP related documents on their website (see Websites box).
Further guidance on the CA’s position on AMN relating to prevention and mitigation of environmental aspects of major accidents can be found in HSE (2012 and on MATTE in CDOIF (2011).
1.5.3 EPR (England and Wales) 2010, PPC (Northern Ireland) 2003 and PPC (Scotland) 2012
The Environment Permitting Regulations (England and Wales) (EPR) 2010, the Pollution Prevention and Control Regulations (Northern Ireland) (PPC) 2003 and the Pollution Prevention and Control (Scotland) Regulations (PPC) 2012 implement Industrial Emissions Directive (IED) (Council Directive 2010/75/
EU). These require installations to be operated in a way that provides a high level of protection to the environment as a whole and, in particular, soil and groundwater.
It is the primary operating environmental permit regime in use in the UK for which core guidance is given in Defra (2013).
It is an offence to discharge without authorisation, or exceed the conditions stated on an environmental permit. In particular, Schedule 38 of the EPR 2010 makes it an offence to cause or knowingly permit a
‘water discharge activity’ or ‘groundwater activity’ unless authorised by an environmental permit. Similar regulation applies in Scotland and Northern Ireland.
The definitions of a ‘water discharge activity’ and ‘groundwater activity’ are set out in Boxes 1.2 and 1.3.
In Scotland the regulations are broader and, in respect of discharges, apply to activities likely to cause pollution of the water environment and any other activity that directly or indirectly has or is likely to have a significant adverse effect on the water environment.
Box 1.2 Definition of a water discharge activity (from EPR, 2010) Note
It is anticipated that the Seveso II Directive (Council Directive 96/82/EC) will be replaced in 2015 by the Seveso III Directive (Directive 2012/18/EU). It is understood that the major change will be the use of the globally harmonised system (GHS) for classification of chemicals to determine whether they are within the scope of the Directive. When the new Directive is implemented, there is the potential for sites to change their COMAH status (top tier, lower tier or non-COMAH), depending on the substances and quantities held.
Schedule 21 (3)
A “water discharge activity” means any of the following—
(a) the discharge or entry to inland freshwaters, coastal waters or relevant territorial waters of any (i) poisonous, noxious or polluting matter,
(ii) waste matter, or
(iii) trade effluent or sewage effluent;
(b) the discharge from land through a pipe into the sea outside the seaward limits of relevant territorial waters of any trade effluent or sewage effluent;
(c) the removal from any part of the bottom, channel or bed of any inland freshwaters of a deposit accumulated by rea-son of any dam, weir or sluice holding back the waters, by causing it to be carried away in suspension in the waters, unless the activity is carried on in the exercise of a power conferred by or under any enactment relating to land drain-age, flood prevention or navigation;
(d) the cutting or uprooting of a substantial amount of vegetation in any inland freshwaters or so near to any such waters that it falls into them and failure to take reasonable steps to remove the vegetation from these waters;
(e) an activity in respect of which a notice under paragraph 4 or 5 has been served and has taken effect.
Box 1.3 Definition of a groundwater activity (from EPR, 2010)
BAT takes into account the balance between the costs and environmental benefits and in a similar manner to AMN under COMAH, are interpreted to require use of ‘good practice’ for pollution
prevention. Further guidance on BAT in relation to particular industry sectors can be found on the EA’s website (see Websites box).
1.5.4 The Control of Pollution (Oil Storage) (England) Regulations (OSR) 2001
The Oil Storage Regulations (OSR) apply where more than 200 litres of oil is to be stored. With the exception of those situations set out in paragraph 2.(2) of the Regulations, secure containment facilities must be provided for tanks, drums, IBCs and mobile bowsers to prevent oil escaping into the environment.
It should be noted that there are differing requirements for each UK country and reference should be made to the primary legislation and to Appendix A1.
1.5.5 The European Water Framework Directive (WFD)
The European Water Framework Directive (WFD) (Directive 2000/60/EC) was transposed into UK law in December 2003 and requires that all inland (including groundwater bodies) and coastal waters achieve at least ‘good’ status. The status of a water body is essentially determined from its biological, hydromorphological and physio-chemical properties. The WFD has established river basin districts for which river basin management plans have been developed by the CA that detail the actions (a programme of measures) required to meet these objectives.
Any activities, such as new development that potentially could lead to deterioration in the status of a waterbody, or would render proposed improvement measures ineffective, would be contrary to the Directive. Details of the WFD classification assessment can be found on the EA’s website (see Websites box).
Schedule 22 (3)
A “groundwater activity” means any of the following—
(a) the discharge of a pollutant that results in the direct input of that pollutant to groundwater;
(b) the discharge of a pollutant in circumstances that might lead to an indirect input of that pollutant to groundwater;
(c) any other discharge that might lead to the direct or indirect input of a pollutant to groundwater;
(d) an activity in respect of which a notice under paragraph 10 has been served and has taken effect;
(e) an activity that might lead to a discharge mentioned in paragraph (a), (b) or (c), where that activity is carried on as part of the operation of a regulated facility of another class
A discharge or an activity that might lead to a discharge is not a “groundwater activity” if the discharge is—
(a) made, or authorised to be made, by or under any prescribed statutory provision; or (b) of trade effluent or sewage effluent from a vessel.
The regulator may determine that a discharge, or an activity that might lead to a discharge, is not a groundwater activity if the input of the
pollutant-(a) is the consequence of an accident or exceptional circumstances of natural cause that could not reasonably have been foreseen, avoided or mitigated;
(b) is or would be of a quantity and concentration so small as to obviate any present or future danger of deterioration in the quality of the receiving groundwater; or
(c) is or would be incapable, for technical reasons, of being prevented or limited without using—
(i) measures that would increase risks to human health or to the quality of the environment as a whole, or
(ii) disproportionately costly measures to remove quantities of pollutants from, or otherwise control their percolation in, contaminated ground or subsoil.
Note
The EPR require operators of installations to use best available technique (BAT). Where such installations covered in Schedule 1 have bulk storage of hazardous materials, guidance on what represents BAT is given in the BREF document for emission storage (European Commission, 2006).
1.5.6 Other legislation and guidance
Flood and Water Management Act 2010
The largest of bunds/lagoons might fall in scope of reservoirs safety legislation as part of the Flood and Water Management Act (FWMA) 2010. Where a structure is currently capable of holding more than 25 000 m3 of water above the natural level of any part of the surrounding land it falls within the scope of the Act and must be registered.
The regulator interprets capacity to hold water to include any capacity intended for rainwater or firewater or other site drainage water. A chemicals bund would not therefore be in scope if the foreseeable volumes of water that could be in the bund do not exceed the threshold.
BASIS Registration Scheme
The BASIS Registration Scheme (see Websites box) has been established to develop standards for the safe storage and transport of agricultural, horticultural and forestry pesticides. Registered stores are audited annually to ensure that the store, the people who operate it and the staff who provide advice on professional pesticides meet their legal obligations and are taking all reasonable precautions to protect people and the environment.
Safety data sheets
Specific advice on the management of inventory is also available from its specific safety data sheet (SDS) (see Websites box). SDS should be provided by the inventory suppliers, or can be obtained from a number of readily available sources on the internet.