Volume 14: Responsibilities for Human and Animal Health
8. Pollution control and waste disposal
Waste and pollution legislation in Great Britain post-1986
Solid waste disposal and pollution
Waste from agricultural premises
The licensed waste system

8.78 A considerable body of waste and pollution legislation came into effect in Great Britain from 1988 onwards. This was partly due to the long-standing criticisms of the inadequacies of the legislation, referred to earlier and, increasingly, to the effect of European legislation. Many of these changes affected not only the way in which waste and pollution matters were handled and managed, but also the agencies with the responsibility for handling and managing these materials and substances. For ease of understanding, these changes are described under three broad headings: solid waste, water discharges and pollution, and air emissions and pollution. Two particular aspects of the solid waste legislation, special or hazardous waste and clinical waste, are considered separately at the end of the solid waste section.

Solid waste disposal and pollution

The Collection and Disposal of Waste Regulations 1988

8.79 The waste management system of COPA 1974 and the related licensing arrangements of the Control of Pollution (Licensing of Waste Disposal) Regulations 1976, required updating by the late 1980s in the light of experience. The Collection and Disposal of Waste Regulations 1988 (which did not apply in Scotland) clarified and extended the exemptions from the waste licensing system of COPA, and for the first time defined clinical waste as a separate waste system. Exemptions were defined by Regulation 9 (1) and schedule 6, which prescribed the cases where a waste disposal licence was not required for the deposit of controlled waste on land. This exemption did not apply if the waste was liable to give rise to an environmental hazard; that is, if it was deposited in such a manner or such a quantity 'as to subject persons or animals to a material risk of death, injury or impairment of health, or as to threaten the pollution (whether on the surface or underground) of any water supply'.

8.80 Paragraph 13 of schedule 6 excepted the deposit

1. of sewage sludge on land for the purpose of fertilising or other wise beneficially conditioning that land; or
2. of any waste, on land used for agricultural purposes, for the purpose of fertilising or otherwise beneficially conditioning that land.

8.81 The schedule made this exception subject to two qualifications: that the waste was deposited directly onto the land and not into a lagoon or container (though sewage sludge deposited into a secure lagoon or container was also exempt by paragraph 10 of schedule 6); and that the person depositing the waste gave particulars to the waste disposal authority for the area where the deposit was made. Those details were essentially a description of the waste, an estimate of its quantity, the location and frequency of deposits and the depositor's name, address and telephone number. Providing that amended particulars were given in advance, different types of waste could be deposited within the exception.

8.82 This exception greatly widened the scope for the deposition of waste on agricultural land without a licence. The 1976 Regulations had excluded sewage spread on land for agricultural purposes from the definition of industrial waste (which was controlled waste and hence subject to the need for a licence). Although paragraph 13(1)(a) of the 1988 Regulations continued this exclusion, sub-paragraph (b) permitted any type of waste, controlled or not, to be spread on agricultural land so long as it could be shown to be fertilising or beneficially conditioning that land. Hence not only abattoir waste, such as blood and gut contents, could be spread without a licence, but so too could condensate from the rendering process and any other waste material unless it could be shown to give rise to an environmental hazard.

8.83 The 1988 Regulations defined clinical waste as including:

(a) any waste which consists wholly or partly of human or animal tissue, blood or other body fluids, excretions, drugs or other pharmaceutical products, swabs or dressings, or syringes which unless rendered safe may prove hazardous to any person coming into contact with it; and

(b) any other waste arising from medical, nursing, dental, veterinary, pharmaceutical or similar practice, investigation, treatment, care, teaching or research, or the collection of blood for transfusion, being waste which may cause infection to any person coming into contact with it.

8.84 Regulation 6 and schedule 3(9) identified clinical waste (other than from a private dwelling or residential home) as being industrial waste and to be treated as such under Part I of COPA. Although this did not alter the existing exemption which applied to veterinary medicines used on agricultural premises, the surplus materials, containers, etc of which were then disposed of on agricultural land, it did confirm the status of such material in all other circumstances as controlled waste under Part I of COPA. This is considered separately below.

The Sludge (Use in Agriculture) Regulations 1989

8.85 The use of sludge from sewage works and septic tanks to spread onto agricultural land had been exempted from the COPA licensing system by the 1976 Regulations, and this had been continued by the Collection and Disposal of Waste Regulations 1988. However, the EC had been concerned at the potentially harmful effects of the uncontrolled use of sewage sludge and had adapted the Sewage Sludge Directive of June 1986 (1986/278/EEC). This was to be translated into national law within three years; it sought to prohibit, among other things, the use of sludge on grassland if this was to be grazed within three weeks of spreading.

8.86 The Sludge (Use in Agriculture) Regulations 1989 and the Amendment Regulations 1990 provided for this minimum three-week period between spreading and grazing by making it an offence to observe a lesser period. The Regulations also required that in any case the sludge and the soil on the land had to be rested in advance, that application rates had to be observed and that certain crops could not be grown on such land. Sludge producers were required to keep registers of the type and quantity of material deposited and the location and details of soil analyses of the deposit sites. They were also required to notify the Secretary of State of every dedicated site where sludge was spread on land where crops were grown only for animal feed. The effect of this legislation, though separate from the main system of waste and pollution control, was to bring sewage sludge into a defined regulatory system.

The Environmental Protection Act 1990

8.87 The most significant change to national waste legislation in this period was the introduction of the Environmental Protection Act 1990 (EPA 1990), which was enacted primarily as a result of criticisms of the way in which COPA 1974 was working. The Department of the Environment, Transport and the Regions (DETR) explained the background thus:

The new licensing system [of COPA] was brought into force in June 1976. Although local authorities were given some extra money in recognition of the additional burden placed on them they were soon beset by strictures to restrain the growth in their expenditure. In many cases, waste management was low on local authorities' lists of priorities.

The consequence was that throughout the 1980s the Government was subjected to quite intense political and public criticism because of allegedly poor standards in the management and disposal of waste, and inconsistency between authorities in the standards they applied . . . ¹

8.88 The Government did not accept that waste management standards in the UK presented a serious risk to the environment. Nevertheless, it announced its intention to improve what it considered to be a basically sound system. A series of consultation papers led to the provisions contained in Part II of EPA 1990.

Waste from agricultural premises

8.89 Part II of EPA 1990 dealt with waste on land and re-enacted many of the terms and provisions of COPA 1974. The definition of waste remained the same as did the exclusion from commercial waste - and hence from controlled waste - of waste from premises used for agriculture (section 75(2), (4) and (7)). But solid waste from farms deposited on those premises never became subject to any of the controls of this Part of the EPA 1990. This was because, although section 63 contained provisions similar to those of COPA section 18(2), making it an offence to deposit waste without a licence, sub-section 63(2) was never implemented and was eventually substituted by provisions of the Environment Act 1995. When section 18(2) of COPA 1974 was repealed from May 1994 by Regulations, the effect of EPA on the deposit of farm waste, which could include animal carcasses or remains, was to broaden the scope of its exclusions from control by removing earlier prohibitions on such acts or omissions.

The licensed waste system

8.90 The COPA system of licensing was retained by EPA 1990 but in a strengthened and more tightly defined form. It was an offence under section 33(1) to deposit controlled waste or cause or permit it to be deposited, unless a waste management licence authorising the deposit was in force, and the deposit was in accordance with the licence. It was also an offence to keep, treat or dispose of controlled waste in or on land, or by means of mobile plant, except in accordance with a waste management licence. Thirdly, it was an offence to treat, keep or dispose of controlled waste in a manner likely to cause pollution of the environment or harm to human health. The maximum penalties for conviction were substantially increased, to six months' imprisonment, a fine of £20,000, or both, on summary conviction, and two years' imprisonment or an unlimited fine or both on indictment. Where the offence involved special waste, the maximum term of imprisonment on indictment was increased to five years.

8.91 The power to issue a waste management licence rested with the waste regulation authority for the area. The Act provided for the breaking up of the former waste disposal authorities of COPA into (a) separate waste regulation authorities (WRAs), which were the county councils in England, district councils in Wales, and island or district councils in Scotland, and (b) into new and separate waste disposal companies. These were either private companies or 'arm's-length' firms set up by local authorities and were constituted so that they could only engage in the activities of disposal, treatment or keeping of waste and the collection of waste. Thus, the operation of waste disposal sites - both landfill and incinerators - performed by waste disposal companies, was separated from the regulatory function of the WRAs. The process of application for a licence, its consideration by the WRA, and the terms and conditions on which it could be granted, closely followed the COPA system. So too did the system of appeals to the Secretary of State for the Environment, where a WRA had refused a licence, failed to determine an application, or granted a licence subject to conditions.

8.92 There were, however, several significant changes to the former licensing system. The WRA had to be satisfied that the applicant was a 'fit and proper person', which was to be determined by reference to the carrying on by that person of the activities to be authorised by the licence. To establish this, the Waste Management Licensing Regulations 1994 measured relevant certificates of professional competence against the type of waste facility that was to be the subject of the licence. In addition, a fit and proper person must not have been convicted of a relevant offence, and had to be in a position to make financial provision adequate to discharge the obligations arising from the licence. These obligations could be very wide and could cover matters required to be done both before the activities authorised by the licence had come into force, and after those activities had ceased.

8.93 Once a licence came into force, it was the duty of the WRA to ensure that the authorised activities did not cause pollution detrimental to the environment or harm to human health, or become seriously detrimental to the amenities of the locality, and that there was compliance with the licence conditions. Where it appeared to the WRA that water pollution was likely to be caused, it was required to consult the National Rivers Authority (or River Purification Authority in Scotland) in order to discharge its duty to prevent pollution. This could include emergency works by the WRA, the costs of which could be recovered from the licence holder. Where a condition of the licence was not complied with, the WRA could require compliance within a specific time and if this did not occur, it could revoke the licence in whole or in part, or suspend its provisions.

8.94 A licence could also be revoked or suspended where it appeared to the WRA that the licence holder had ceased to be a fit and proper person, that continuation of the activities authorised by the licence would result in pollution of the environment, harm to human health or cause serious detriment to the amenities of the locality, or that pollution, harm or detriment could not be avoided by modifying the licence conditions. Revocation or suspension did not, however, relieve the licence holder of complying with the licence requirements. These continued to bind him, and the WRA could require a licence holder to take whatever measures to avert the pollution or harm it considered necessary. Failure to comply with these requirements was also an offence, carrying substantial penalties.

8.95 As an alternative to revocation or suspension, the WRA could also vary or modify the conditions of the licence to the extent required to avoid pollution, harm or detriment. It could also, on its own initiative, modify licence conditions if it considered it desirable and unlikely to require unreasonable expense on the part of the licence holder; modifications proposed by the licence holder could also be made. A licence could be surrendered to the WRA but in the case of a site licence, only if the authority accepted the surrender. To obtain a surrender, an application by the licence holder had to be made, and the authority had to inspect the land and consult the National Rivers Authority, before determining whether it was likely or not that the condition of the land - as a result of the authorised activities - would cause pollution or harm to human health. If the authority decided that neither pollution nor harm would result, they had to accept the surrender. But otherwise, surrender would be refused and the licence would continue in force. A licence holder could not transfer the licence to another person but had to apply to the WRA for permission to do so, together with the proposed transferee who had to be a fit and proper person and produce evidence to that effect.

8.96 EPA also introduced the concept of the duty of care, so that anyone importing, producing, carrying, keeping, treating or disposing of controlled waste had a duty to take all necessary measures to ensure that no waste escaped from his control; that the waste was not deposited on land which was not an authorised site; that on transferring waste to anyone else full details of the waste were given in writing; and that the recipient was an authorised person - 'ie, a holder of a waste management licence, a waste collection authority, or a registered carrier of controlled waste'.

8.97 The duty of care provisions and the registration of carriers of waste were brought into effect in April 1992, and the main licensing provisions of EPA in May 1994, by the Waste Management Licensing Regulations of that year. The effect was to ensure that, together with a more detailed system of registering waste, introduced separately by the 1994 Regulations, all controlled waste was closely managed from the point of production to disposal. Although controlled waste could not be traced along its route, comprehensive records were now required of all disposals. These were publicly available and were intended to provide a clear picture of the contents of landfill sites or the substances incinerated from 1994 onwards. The aim of the new licensing system was to make it almost impossible to dispose of controlled waste from any commercial or industrial process (or household waste) except by using a registered carrier and depositing it in an authorised site or incinerator where its quantity and nature would be recorded.

Licensing exemptions

8.98 The Waste Management Licensing Regulations 1994 (WMLR), which put into effect the amended Waste Framework Directive and the licensing provisions of EPA 1990, also contained many exemptions. DoE Circular 11/94 explained that one of the purposes of the WMLR was:

to prescribe under Section 33(3) of the 1990 Act cases where a waste management licence is not required.

8.99 According to the Circular, the Government's waste policy was, subject to the best practicable environmental option, that waste management should be based on a hierarchy in which the order of preference was:

1. reduction
2. re-use
3. recovery including:
   1. recycling
   2. composting
   3. recovering energy
4. Disposal, without energy recovery, by landfill or incineration.

8.100 Within this waste hierarchy, each option was to be managed and where necessary regulated to prevent pollution of the environment or harm to human health. However, this was set within the Government's more general policy of regulation being proportionate to the risks involved and benefits to be obtained; that it should not be an end in itself; that it should not be over-prescriptive; and that it should not impose an unjustifiable or disproportionate burden on those regulated - especially small businesses. The Circular went on to explain that the minimum monitoring and inspection frequencies recommended by the revised DoE guidance of Waste Management Paper No. 4 on licensing reflected the potential which different types of waste management facility had to cause environmental pollution or harm to human health. WRAs were required to have regard to the same principles.

8.101 Given this context, the extent of the licensing exemptions was explained in Annex 5 to the Circular:

There are significant changes in the exemptions prescribed. These changes arise from the increased scope of licensing under Section 33(1) compared with Section 3(1) of the 1974 Act, from the effect of implementing EC requirements, from the Government's policies of encouraging recycling, and from the Government's general presumption in favour of deregulation. The net effect will be a considerable increase in the activities exempted.

8.102 There were 43 paragraphs of exemptions in schedule 3 to the Regulations. Of these, five were significant for issues relating to this Report.

8.103 Waste spreading: Paragraph 7 of the schedule exempted the spreading of waste on agricultural land as follows:

7(1) The spreading of any of the wastes listed in Table 2 on land which is used for agriculture . . .

Table 2

Part II

Waste food, drink or materials used in, or resulting from the preparation of food or drink

Blood and gut contents from abattoirs

. . .

Septic tank sludge

Sludge from biological treatment plants

Waste hair and effluent treatment sludge from a tannery.

8.104 This activity was subject to conditions including that no more than 250 tonnes of waste per hectare were spread on the land in any 12-month period, that the activity resulted in benefit to agriculture or ecological improvement, and that where the waste was to be spread on land used for agriculture, the establishment or undertaking doing the spreading notified the WRA in advance, or where regular spreading occurred, every six months.

8.105 The effect of the WMLR was that, from May 1994, a licence for spreading blood and abattoir waste on land was no longer required. Although the provisions of the Diseases of Animals (Waste Food) Order 1973 still applied and prevented access by animals to unprocessed waste food, the controls at the waste source introduced by COPA disappeared.

8.106 Beneficial use of waste: Paragraph 15 of schedule 3 to the WMLR exempted from licensing the beneficial use of waste if it was put to that use without further treatment and that use did not involve its disposal. This paragraph did not apply to the use (or related storage) of waste already covered by the paragraph/exemption. Under this paragraph, however, any waste applied to agricultural land with the intention of fertilising or improving it could be considered exempt from licensing controls, bearing in mind that spreading as fertiliser by the occupier of the land might not constitute disposal of waste. An argument on these lines was successfully used as a defence by an undertaking which had spread rendering condensate on its farmland, and had been prosecuted by the WRA for disposal without a waste management licence. Questions were subsequently asked in Parliament on the implications of this decision for the post-March 1996 BSE controls on fertiliser and about the advice of the Spongiform Encephalopathy Advisory Committee (SEAC) ² on the safety of spreading condensate. ³

8.107 Waste food and animal by-products: Paragraph 16 of schedule 3 exempted the carrying on - in accordance with the conditions and requirements of a licence granted under article 7 or 8 of the Diseases of Animals (Waste Food) Order 1973 - of any activity authorised by that licence. Paragraph 23 exempted the keeping or treatment of animal by-products (as defined in the Order) in accordance with the Animal By-Products Order 1992. These two paragraphs continued the exemptions contained in COPA 1974 from waste licensing (the 1992 Order having replaced the Protein Processing Order 1981) on the basis that the materials in question, waste food and animal protein used in feedingstuffs, were controlled by separate legislation. As noted in relation to COPA controls, the disposal of waste from the processing of the waste food and animal by-product rendering was not exempted by this paragraph from waste licensing, though it could be exempted in certain instances, for example, by paragraphs 7 and 15.

8.108 Incineration: Disposal of waste by incineration was exempted in defined circumstances from licensing by paragraph 29 of schedule 3. The disposal had to be at the place where waste was produced, by burning in an exempt incinerator, which was plant designed to incinerate waste, including animal remains, at a rate of not more than 50 kg per hour. This permitted the burning of animal carcasses on farms in an incinerator of the appropriate size, but the exemption did not apply to burning in the open, which was exempted by paragraph 30 but in terms which limited it to wood, bark or other plant matter. The burning of cattle carcasses on open pyres during the early years of BSE had led to complaints in some areas; for example in Devon where:

At the onset of the crisis the CPA ⁴ and LPAs ⁵ were primarily concerned with complaints, from 1988 onwards, relating to BSE carcass storage and transit arrangements and to the incidence of open pyre burning in the County, particularly at Upottery and Cheriton Bishop. In these instances there appeared to be some lack of acknowledgement, if not disregard, by [MAFF] of the duties and responsibilities of the County Council as a Planning Authority and also then as the Waste Licensing Authority; the District Councils as Environmental Health Authorities and Local Planning Authorities; and the National Rivers Authority (now the Environment Agency) with their particular responsibilities for the water environment. ⁶

8.109 Nevertheless, in the consultations which took place at the Bill stage of the EPA, MAFF expressed its concern to DoE that the use of open pyre burning might be curtailed by its provisions, as this extract from a note of a meeting to discuss animal carcass incineration illustrates:

Open pyres

4. Open pyres for animal cremation are not controlled by the guidance, which is designed to cover 'combustion in appliances'. However, Mr Key intimated that DoE's Waste Management Policy Unit is likely to try to curtail their use in a separate initiative. Whilst himself sympathetic to the difficulties this would cause us, he has no influence in the matter. (ACTION: EP Division will be contacting DoE to clarify their intentions and emphasise MAFF's opposition to any proposals to end open burns.) ⁷

8.110 MAFF was equally concerned at the implications at that stage of guidance on incineration processes and standards, particularly in relation to the type which was generally used for disposing of animal carcasses on farms - the mobile incinerator. The note continued:

Mobile incinerators

5. Being 'appliances', mobiles are covered by the guidance, although aspects such as carcass storage, over which operators could have little control, may not apply. Whilst not over-familiar with their construction, I would think it highly unlikely that any of the units currently dealing with BSE carcasses could satisfy the new standards. Mobiles would therefore be unusable from April next year.

Mr Key accepted that this would almost certainly lead to increased (and less desirable) open burning, but gave no indication that controls on mobiles could be relaxed and repeated DoE's plans to tackle open pyres. (ACTION: if we are to oppose this action, we need to register the fact with HMIP [Her Majesty's Inspectorate of Pollution] by this Friday, 12 October; do we wish to pursue?).

8.111 The outcome of the interdepartmental negotiations was the inclusion of provisions of paragraph 29 of the WMLR exempting small incinerators, which covered almost all mobile equipment, and of paragraph 30 which effectively ended the open burning of carcasses because from May 1994 such activity needed to have a waste management licence. For on-farm disposal of a few carcasses a licence application would be futile given the urgency of disposal. For disposal off-farm, where carcasses from slaughter and compensation were the property of MAFF (who did not enjoy Crown exemption which was removed from the provisions of EPA by Section 159), the need for urgency also applied as did the pressure of public, including local authority, opinion.

8.112 Storage of waste: Finally, paragraph 17 of schedule 3 granted an exemption for the storage of waste in a secure place on any premises. The type and quantities of wastes were specified in a Table and the exemption was subject to conditions one of which required that it was stored on the premises for no longer than twelve months, and was to be used or reused for, among other matters, any recovery operation. As published in the WMLR, the Table contained no waste of significance to BSE, but the Waste Management Licensing (Amendment) Regulations 1996 added to it waste mammalian protein and waste mammalian tallow from the Over Thirty Months Scheme, which could be stored in quantities of up to 60,000 tonnes and 45,000 tonnes respectively in any one place. The intention was that such material would be burned as fuel in power stations, which was a recovery operation within the terms of paragraph 17 of achedule 3 to the 1994 Regulations.

8.113 Although the categories of waste in schedule 3 were exempt from the licensing regime, they were required to be registered with the competent authority. Under Regulation 18, it was an offence not to register an exemption with the competent authority, which was under a duty to establish and maintain a register of establishments and undertakings carrying on exempt activities. But the register required only the name and address of the establishment or undertaking, the activity constituting the exempt activity, and the place where the activity was carried on. Regulation 18(4) required the authority to register the exemption; there was no option of refusal to register, and once entered, the registration remained valid indefinitely. Failure to register was subject to a fine at no higher than level 2, which in 1994 was £500.

8.114 The 'competent authority' for registration was defined by Regulation 18(10) and in most cases was the WRA. But for a few exemptions, including some of those relevant to this Report, other competent authorities were responsible for this task. In the case of schedule 3, the competent authority was the issuing authority for a licence granted under section 7 or 8 of the Diseases of Animals (Waste Food) Order 1973; that is, the Minister of Agriculture or in Scotland, the Secretary of State. For animal by-products exempted by paragraph 23 of Schedule 3, the registration authority was as follows:

Table 8.2

8.115 The effect of these exemptions was that, despite the registration requirement, the activities concerned would become largely unregulated. Not only was there no provision to impose any conditions or requirements on these activities, but the prospect of supervision by the competent authority even to verify the accuracy of a register entry was remote. A recent report commissioned by DETR notes that 'Currently, the Environment Agency service levels for supervising exempt activities (which may or may not be attained)' meant that the shorter the lifetime of the activity the less the chance that inspection would take place at all. It cited the EA's Waste Management Action Plan, which explained that in 1998 there were 7,500 licensed waste management facilities in England and Wales and 14,000 exempt sites. ⁸

Special waste

8.116 The Control of Pollution (Special Waste) Regulations 1980 had been introduced to give effect to an EC Directive on Toxic and Dangerous Waste (EEC/78/319). This Directive was extended by another on the subject of Hazardous Waste in 1991 (EEC/91/689) and a Council Decision of 1994 on the same subject (94/904/EC). It required Member States to introduce a system of consignment notes which would trace such waste from the point of origin to final disposal, including transfer, subdivision, and any other change en route. The Decision identified hazardous substances in a list, the Hazardous Waste List (HWL), grouped by category of substance. These wastes were classified according to the hazard they presented, not the risk, in contrast to the 1980 Regulations. The hazards included infectivity, defined as:

substances containing viable micro-organisms or their toxins which are known or reliably believed to cause disease in man or other living animals.

Other hazards included harm and toxicity. The onus was on the producer of the waste to assess whether or not his waste fell within one of the categories.

8.117 The Special Waste Regulations 1996 which revoked and replaced the 1980 Regulations in Great Britain did not, however, come into effect until September 1996. Nor did they apply to waste from agriculture as DoE Circular 6/96 explained:

Wastes arising from agriculture (such as agrochemical wastes) . . . are not currently controlled wastes and therefore will not be subject to these Regulations at present. However, such wastes will become controlled wastes when further waste management licensing regulations are introduced to cover these activities. Such waste will only become special waste at that stage if the requirements of the Special Waste Regulations 1996 are met. ⁹

8.118 Hence the special waste regime which existed at 1986 was still in existence at the end of the period with which this Report is concerned - 20 March 1996 - and the exemption from it of all agricultural wastes, irrespective of the hazards they presented, remained.

Clinical waste

8.119 As noted above, the concept of clinical waste had first appeared in the Collection and Disposal of Waste Regulations 1988. Clinical waste was a subset of industrial waste and hence came with the definition of controlled waste in COPA 1974. It 'includes waste from veterinary premises and products as well as from research institutions and hospitals, but excludes waste from agricultural premises'. The Controlled Waste Regulations 1992 had slightly amended this definition by replacing the word 'includes' with 'means'; this limited its extent to what was in the rest of the definition.

8.120 Clinical waste could fall within the definition of special waste under the Control of Pollution (Special Waste) Regulations 1980, in which case it became subject to the consignment note system applicable to special waste. That system was extended from April 1992 by the duty of care provisions introduced by the Environmental Protection (Duty of Care) Regulations 1991. These obliged the holders of all controlled waste to maintain detailed records of all waste consignments and make copies of transfer notes available to the WRA. Guidance on the duty of care was issued by the Department of the Environment in March 1996 and detailed advice on the system of clinical waste was contained in the DoE publication, 'Waste Management Paper No. 25'.

8.121 The transport of clinical waste was also subject to the duty of care provisions in that a producer or holder of such waste was obliged to transfer the waste to a carrier authorised by the Control of Pollution (Amendment) Act 1989. Regulations introduced in April 1992 ¹⁰ required the WRA to maintain a register of all authorised carriers of waste and, as potentially dangerous substances, clinical waste was subject to a number of other Regulations ¹¹ and non-statutory codes of practice, the latter mainly issued by the Health and Safety Executive.

8.122 But no significant changes were made to the clinical waste system itself before late 1996 when the Special Waste Regulations 1996 came into force, implementing the provisions of the Council Directive on Hazardous Waste and its subsequent amendment (91/689/EEC and 94/31/EEC). The Regulations defined categories of hazard for different types of waste which were drawn up in conjunction with the Health and Safety Executive Risk Group classifications of waste. However, these changes were not implemented until several months after 20 March 1996 and hence are beyond the scope of this Report.

8.123 The discharge of any clinical waste or effluent into a public sewer or watercourse was treated in the same way as any other discharge, at first under the Control of Pollution Act 1974 Part II and then under the Water Resources Act 1991. No special provisions applied to clinical waste.

8.124 Air pollution was regulated by both central and local government. HMIP (DoE) was responsible for processes listed in Part A of the Environmental Protection (Prescribed Processes and Substances) Regulations 1991, within an Integrated Pollution Control (IPC) regime that covered discharges to all three media of air, water and land. The responsibility for less polluting processes fell to local authorities under Part B of the Regulations; the Local Authority Air Pollution Control (LAAPC) regime. These systems, which respectively regulated incineration at more than one tonne per hour or less than that rate, were especially relevant to clinical waste because many hospitals and research institutions had their own dedicated incinerators from the 1980s onwards. They are described in more detail below.

8.125 The higher standards required for larger incinerators by the European Air Framework Directive (84/360/EC) were the subject of detailed guidance in HMIP Process Guidance Note IPR5/2 'Waste Disposal and Recycling Clinical Waste Incineration'. They had a profound effect on the numbers of such incinerators, reducing their number very substantially and leading to a concentration on large, regional units where costs could be shared. The upgrading required for these clinical waste incinerators had to be completed by December 1996. In the case of the smaller incinerators, advice was issued by the DoE to local authorities in PG5/1(95). Though less severe than those for large incinerators, these higher standards had to be complied with by October 1995. In cases where animal remains and more than incidental amounts of other waste were incinerated, including clinical waste, the provisions of PG5/1(95) applied, despite the fact that guidance and standards for animal remains-only incineration were contained in PG5/3(95).

8.126 As with solid clinical waste, further changes were introduced by the end of 1996 to the clinical waste incineration regime as a result of the EC Hazardous Waste Directives of 1991 and 1994. These resulted in a tightening of controls and standards but are beyond the scope of this Report.

Discharges to water and water pollution

8.127 In 1986, the Government announced its intention to privatise the water industry, with the utility roles of water supply and sewerage services to be undertaken by the private sector and the main regulatory and water management functions by a new body, the National Rivers Authority (NRA). The 1989 Water Act established the NRA in England and Wales and transferred to it the former regional water authorities. The Act also repealed sections 32 and 34 of COPA and replaced them with a substantially changed offence - to cause or knowingly permit any trade effluent to be discharged, in contravention of a 'relevant prohibition', from any building or fixed plant onto any land. ¹² This offence made the existence of a relevant prohibition a precondition of the offence being committed, thus putting the onus on the regulatory authority to define and prohibit specific classes or instances of pollution. However, the former offence of polluting controlled waters remained effectively unchanged.

8.128 The 1989 Act was consolidated, with earlier legislation, into the Water Resources Act 1991. The principle of controlling discharges to controlled waters by means of consents, used in COPA Part II, was carried through into the new legislation, which retained all existing discharge consents under that Part of the Act. All new discharges of sewage or trade effluent required the consent of the NRA, which could impose any reasonable conditions to achieve water quality objectives (for drinking water and/or the maintenance of the aquatic environment for fish and other species). Consents were normally granted on the basis of standards relating to the quality of the receiving waters (rather than of the effluent or sewage itself) and were usually expressed as a concentration or load limit at the point of discharge. In some cases, however, consents could specify process limits; that is, the concentration or load at the end of the process itself. Where it was considered that an unacceptable deterioration in water quality of the receiving water was likely to occur due to the content of the discharge, consent could be refused. A refusal, and the conditions imposed on a consent, or the failure to determine an application for consent (which was a deemed refusal) were subject to the right of appeal to the Secretary of State for the Environment.

8.129 The discharge of trade effluents into public sewers was permitted provided that the sewerage undertaker agreed, but any discharge into a sewer without the undertaker's agreement was an offence. The EPA regime applied not only to new discharges but also, after a period of grace, to all existing discharges. Applications for consent had to describe the nature or composition of the discharge, the maximum daily rate and the highest rate of discharge. A sewerage undertaker (usually a water company) could issue a consent unconditionally or impose conditions as to the nature or composition, rates of discharge, and/or which sewer would receive the discharge. Timing, content, flow, inspection, control procedures and charges could also all be included in conditions. Again, there were rights of appeal against refusal of consent, conditions imposed or failure to determine an application. Once a discharge of trade effluent had been accepted by a sewerage undertaker, the latter was required to ensure that the discharge from its sewage works into controlled waters still complied with the terms of its own discharge consent granted by the NRA.

8.130 The effect of these provisions was generally to continue the regime which had existed before 1986, with some modifications. This regime applied equally to water pollution and discharges from farms (which were considered as trade premises under the 1991 Act, and hence produced trade effluent), as to industrial and commercial discharges. The latter also included the discharges from rendering plants and waste food plants, even though their processes were licensed separately by MAFF under the Protein Processing Order 1981 (and its successor, the Animal By-Products Order 1992) and the Waste Food Order 1973.

8.131 The establishment of the NRA caused MAFF to review its procedures on the disposal of carcasses in the event of an outbreak of a notifiable disease, as this consultation letter dated 30 August 1990 from Animal Health Division to the NRA indicates:

We are updating our emergency procedures for use in the event of an outbreak of notifiable diseases. Our current instructions require that before burial of carcasses is undertaken clearance has to be obtained from local Water Boards who used to have responsibility extending from the collection of water in their catchment areas through to the final supply to the customer.

I understand that since the Water Boards were privatised the National Rivers Authority now have responsibility for prevention of pollution of catchment waters/ rivers/streams etc and that this will no longer be the concern of the Water Boards.

That being so I should be grateful if you could supply me with a list of your area drainage engineers who should be contacted to obtain their agreement before burial of carcasses is carried out, so that we can issue this to our staff. We would like to know both office hours, addresses and telephone numbers, and out of office hours contact points and telephone numbers. If you could also supply a map showing the demarcation of your Regions, this would be most helpful. ¹³

8.132 Subsequently MAFF received a copy of draft guidance on the burial of fallen animals issued by NRA's Northumbria Region, which included the following:

These notes only apply to burial of animals which have died from natural causes. Disposal of animals that were diseased is subject to veterinary advice. These notes are intended for guidance only and do not absolve the owner of the animals from the consequences of any pollution or any other problems which may arise from the burial of fallen animals.

If in doubt, seek professional advice.

Unless you can answer 'yes' to all the following questions, burial is not a suitable disposal method.

8.133 There followed six questions concerning distance from sources of drinking water or other springs or watercourses, and from field drains, as well as depth of soil above and below the burial site. Section 12 of the MAFF Code of Good Agricultural Practice for the Protection of Water, issued early in 1991, drew on these questions. ¹⁴ It consolidated and amplified the 1985 Code of Practice, including the earlier advisory booklets, in respect of water. Similar codes were issued for the protection of the air and soil in 1992 and 1993, and equivalent advice was published in Scotland in 1992. ¹⁵

8.134 As an example of the effect of these controls on industry, the following paragraph, which concerns abattoir waste from areas handling Specified Risk Material (S), gives a good illustration, albeit that it applies to BSE controls after 20 March 1996. At that date, the water pollution and waste legislation remained as it had been since 1990; the only change had been the incorporation of the NRA into the Environment Agency from 1 April 1996.

Water and blood draining from SRM handling areas must be screened. Operational guidance developed by the Water Industry and the Agency (in consultation with Government Departments) is that large abattoirs should have 4 mm screens (which would retain the amount of solid estimated to be needed to deliver an infective dose of BSE). Screening by small abattoirs is on a site specific, proportionate basis, to be decided by the discharge regulator. Screenings from water and blood draining from SRM handling areas are regarded as specified solid waste and must be treated as SRM (Ref. 9). This and other SRM regulations and orders are enforced by MAFF's Meat Hygiene Service and local authorities. ¹⁶

8.135 The reference to 4 mm screens was the only guidance on water pollution from abattoirs developed by the post-1989 (privatised) water industry. It was agreed by the Water Services Association, but never published.