On 16 January 2017 the UK Technical Advisory Group for the EU’s Groundwater Framework Directive (UKTAG) and the Joint Agency Groundwater Directive Group (JAGDAG) published two new reports relating to a) whether particular substances entering groundwater are deemed to be hazardous or non-hazardous and b) the concentration which determines whether each substance constitutes a risk to groundwater.
In terms of the first report, it understandably includes some “emergent” pollutants among its hazardous substances. The presence of Perfluorooctane sulfonic acid and its salts, i.e. “PFOS”, is obvious given growing global concern about its impact. Despite what is now known about its toxicity and environmental persistence, PFO evades many permit regimes.
We also note from this report that because the criteria used to assign substances as “hazardous” has changed, some common source pollutants, (Tetrachloroethylene or “PERC” for instance) have been downgraded. This is despite the fact that associated daughter products (such as vinyl chloride) have not.
The second report provides a table which lists what it calls the “limits” (i.e. concentrations) in groundwater below which the danger of deterioration in the quality of the receiving groundwater is avoided – i.e. provided the measured concentrations are less than those listed, the safety of the groundwater is guaranteed. These “limits” are derived from thresholds used to protect groundwater as a long term drinking water resource. They are also dependent upon surface water quality being retained (for this, guidance is provided to calculate the relevant Environmental Quality Standard (EQS) using dilution assumptions for river flow in the case of point sources and catchment sizes in the case of diffuse sources).
All of the “limits” given, apply to freshwater which is otherwise uncontaminated. The guidance acknowledges that mixtures of pollutants may entail higher “limits” but it transfers the onus for issuing further guidance on this to the regional agencies; whereby, it suggests, “case by case” consideration may be appropriate.
In applying these “limits”, the report states that the status of “natural background levels” should be borne in mind. Geologically-induced cases of high ambient concentrations of metals, for instance, are well established. However, no mention is given to cases of high background concentrations of anthropogenic hazardous substances as a result of historic pollution. It is assumed that consideration of such will be enshrined in the regional guidance.
The briefing from UKTAG stresses that the “limits” quoted in their guidance should not be used as “regulatory standards”. Instead, they are offered merely to demonstrate how the UK, as a member of the EU, intends to implement the EU Groundwater Daughter Directive. The advice is targeted at the Regulatory Authorities of our devolved Union. The precise application method of the “limits” listed is intended to be decided by each of the regulatory agencies (Environment Agency, Natural Resources Wales, Northern Ireland Environment Agency, Scottish Environmental Protection Agency) with due consideration of their existing regimes and local circumstances. Each agency is therefore also expected to develop and refine its own approaches to monitoring, assessing and controlling risks to groundwater in accordance with their own requirements and regulations. There also remains the capacity for each of these agencies to run its own consultation process.
The EA and NRW have reacted immediately. They acknowledge the new designations of hazardous materials and are both committed to applying them in the issuing of new permits as of 16th January 2017. Existing permits will continue as they are but will be subject to a rolling review programme (in which one might reasonably anticipate the introduction of PFOS monitoring requirements). As for the new “limits”, both the EA and NRW stress that for the moment, the Minimum Reporting Values (MRV) still apply but both say they “will consider the report, and incorporate it into current regulatory approaches and guidance if appropriate” The SEPA website tells us that “The Scottish Government intends to consult on the implementation of both of these [reports] in the coming months”. The approach of the NIEA, at the time of writing, is unstated.
How the timetable for any changes to the regional regimes pans out against the progress of Brexit remains to be seen.
MRVs are associated with the protection of groundwater resources. Caulmert tracks announcements from regulators which may entail the implementation of new, or amended, measures to monitor and mitigate pollutants which may damage the environment. Our team offers full capability in environmental monitoring, groundwater protection and regulatory liaison and we have a proven track record in the management of challenging sites.