1.  Falmouth and Truro Port Health Authority is the local authority with responsibility for environmental health in relation to its local authority area. This submission consists of a brief outline of the respective functions of the Authority and the Agency, a short account of difficulties encountered which have occasioned a great deal of expense to the Authority, and some views and conclusions which may be of assistance to the committee in the areas of public health and sea fisheries powers.

FUNCTIONS

  2.  The functions of the Authority and the functions of the Environment Agency are interconnected in the following ways:

1.  The PHA is a consultee to the Environment Agency in relation to applications for consent to discharge into controlled waters in the PHA's jurisdiction.

2.  The PHA and the Environment Agency are both consultees to the local planning authority in respect of applications affecting the water and air environment of the PHA's district.

3.  In relation to Part I of the Environmental Protection Act 1990 the Environment Agency is a consultee of the PHA in relation to Local Authority Air Pollution Control, and the PHA is a consultee of the Environment Agency in relation to Integrated Pollution Control.

4.  The PHA carries out water quality sampling and sampling of shellfish in the waters in its area under the Shellfish Hygiene Directive, and reports to MAFF and to Department of Health. The Environment Agency has the powers of a sea fisheries committee in respect of part of the PHA's area with express power to enforce all sea fisheries legislation, Cornwall Sea Fisheries Committee having those powers in relation to the remainder of the area. The PHA as a local authority is thought by MAFF to have powers of prosecution in some parts only of sea fisheries law.

5.  The PHA has the responsibility under Part III of the Environmental Protection Act 1990 to abate statutory nuisances in its area, including the identified bathing waters and recreational waters. The EA has responsibilities under the Bathing Waters Classification Regulations and the Bathing Waters Directions to ensure compliance with the standards for water set in the EU legislation. It now has similar responsibilities under the implementation of Shellfish Waters Directive.

  3.  The Environment Agency has acknowledged that it has no responsibilities in relation to public health, and indeed no technical competence in that area. Public health is of particular relevance to shellfisheries.

  4.  The Environment Agency failed to consult the PHA in relation to a discharge consent application made by South West Water for the discharge of screened crude sewage into prime recreational waters in the Carrick Roads. As a result of the consent granted by the Agency SWW commenced the discharge. The PHA determined after investigation that a statutory nuisance was caused in that the discharge caused a nuisance and/or was prejudicial to health, and issued an abatement notice, which is still the subject of judicial proceedings.

  5.  Following this experience, the PHA had expectations that the Environment Agency would consult the PHA in relation to a further application for consent to discharge made by SWW which involved further treatment, but a continuous discharge which would flow over the oyster beds in the Fal estuary which are now designated as shellfish waters under the Shellfish Waters Directive.

  6.  The Port Health Authority was sent a copy of the application, and prepared a series of questions to which the Environment Agency was asked to obtain answers in order that the PHA could as to public health inform the Environment Agency's consideration.

  7.  Regrettably the Environment Agency did not obtain the information requested by the PHA, though they had power to do so. Further, the Environment Agency delayed provision of other information which they had received to the Port Health Authority until immediately before they issued the consent, thus disabling the PHA from making effective comment on it.

  8.  At a public meeting held in Falmouth to disclose the Environment Agency's proposals with regard to the discharge consent, which included a reduction in the protection of shellfisheries in the Fal estuary against discharge of Combined Sewer Overflows, the Environment Agency undertook to provide to the PHA the information which would enable the PHA to provide a response on public health to the terms of the proposed consent. That information was not supplied to the PHA, and the EA regrettably did not consult with the PHA with regard to the proposed consent and its implications.

  9.  A meeting has been requested by the PHA with the EA to discuss the problems which have occurred between the two authorities, but has to date been declined by the EA.

SEA FISHERIES POWERS

  10.  The sea fisheries powers of the Environment Agency, in particular the powers to enforce existing sea fisheries legislation against pollution of shellfisheries contained in section 7 of the Sea Fisheries (Shellfish) Act 1967, are not exercised by the Agency. We have requested the Agency to take action in relation to a particularly damaging discharge at Flushing in our area, but they have declined.

  11.  The Customer Charter produced by the Environment Agency contains no reference to sea fisheries powers. No one, we believe, is made aware by the Environment Agency that it has such powers, nor is the public asked to contact the Agency to report instances of breach of sea fisheries legislation.

  12.  The Environment Agency appeared to consider that granting a consent to discharge for a polluting discharge under Water Resources Act 1991 Part II precludes the Agency from exercising sea fisheries powers in relation to that discharge. That was not correct, as section 100(b) of the Water Resources Act 1991 makes clear. The Environment Agency maintains that the byelaws made against deposit of deleterious substances in fisheries have lapsed by operation of law, and no longer prohibit such discharges by water companies. Such byelaws were, according to advice from leading counsel in the early years of this century, a very potent instrument to protect shellfisheries from sewage pollution.

  13.  However, in practice, it appears that the Agency will not exercise its powers either under the Water Resources Act 1991 or sea fisheries legislation against a discharge which is agreed in the AMP process with ministers water companies and OFWAT. It is only by regarding the sea fisheries legislation as a discretion of the EA and the EA not enforcing the sea fisheries legislation, that the EA can avoid prosecuting a water company in respect of a number of discharges which the EA have consented.

  14.  The EA does not have the expertise in the highly specialised field of sea fisheries properly to discharge the functions of a sea fisheries committee which are extremely specialised. In the view of the PHA, the powers of the Agency under sea fisheries legislation should be removed from the Agency and vested in sea fisheries committees and in littoral local authorities in areas where there are no joint sea fisheries committees, until the SFC network can be extended to cover all relevant waters by appropriate orders. Sea Fisheries Committees have teams of specialist officers and are assisted by an Association of Sea Fisheries Committees.

THE AGENCY'S FUNCTIONS IN CONSENTING DISCHARGES INTO SHELLFISHERIES

  15.  It is a matter of considerable concern, that in the PHA's experience, the EA does not seek the views in relation to environmental health of EHO's with extensive experience of shellfisheries in the waters the subject of consent to discharge applications.

  16.  In the most recent instance, the EA has taken, without reference to the PHA, a standard for bacteriological quality of shellfish water of 300 f.c/100ml as complying with the Shellfish Waters Directive and as satisfactory for continuous discharge of bacteria and viruses into shellfish waters, and a standard of 10 storm discharges over 50 cubic metres from CSOs per annum. The first criterion has been challenged by SEPA as not being protective of public health, and the second is inconsistent with work carried out by MAFF which suggested that there should be no such discharges in waters of classification "A", which is equivalent to the standard required to be endeavoured for under the Shellfish Waters Directive.

  17.  The EA also took what the PHA considers to be an unreasonably complacent view as to the end product standard of a new proposed works with a new combination of treatment elements, which in the PHA's view is likely to expose consumers of shellfish to risk of illness. Similarly, the EA has taken a restrictive view of the concentrations of nitrates which are at risk of creating the conditions for toxic algae, and appear to have misread the DoE documentation they were quoting in support of their unrobust position.

  18.  This problem of complacency arises in legal terms in relation to compliance with European water quality standards, where consents do not set a parameter for bacteria or viruses, for example, but only specify certain treatment processes to be applied. The EA does not appear to have the expertise in relation to sewage treatment processes to be able to set treatment conditions which will correspond with the end quality required to be achieved.

THE AMP PROCESS AND THE AGENCY'S CONSENTING DECISIONS

  19.  The PHA is concerned that there appears to be a tendency on the part of the EA to seek to minimise particular sewerage improvements in areas where public health is concerned, to adopt interpretations of EU obligations which are restrictive of improvement and a failure to consider whether public health risk would be reduced significantly by locating discharges more remotely from receptors. This may reflect the EA's predominant consideration of water quality rather than public health, and it's desire to move environmental improvement forward at a pace which is politically acceptable to DETR.

  20.  It must be borne in mind that the programmes of work to be carried out by SWW are approved on a political basis by Ministers from options costed by the water companies—indeed the present sewerage discharge problems at Falmouth originate from decisions made by Ministers and SWW over the heads of the then NRA—and that the present programme for the SWW area has been restricted by Ministers according to criteria which have yet to be disclosed by DETR, but of which the EA is presumably aware. Historically, EA water quality controls functions and sewerage functions of water companies have a common origin in the regional water authorities. In this field, as the PHA has observed, there is a very close working relationship between the EA and the water company concerned, which, with the EA's relationship to DETR as the agency effectively by its guidance to OFWAT limiting the sewerage budget, makes it very difficult for the EA to show itself capable of making truly independent decisions which are protective of public health and the environment, over and above those on which it has not been able to avoid a clear obligation under European legislation.

  21.  AMP(2) Guidelines made clear that consenting decisions by the EA on individual discharge applications was not to be affected by the arrangements agreed as a matter of planning between DoE (DETR) EA OFWAT and water companies. This is in accordance with the law. However, in practice, the EA has surrendered its discretion.

  22.  This administrative practice therefore appears to compel the EA to ignore public health issues put to it by PHAs where the EA perceives that there is conflict with undisclosed criteria agreed between it and DETR to limit expenditure on sewerage improvements. We would submit to the Committee that means must be found to compel the EA to take account of issues of public health, and of the views of the competent authorities for public health, in its consenting decisions.

  23.  In particular, means need to be found for environmental health authorities to require applicants to the EA for consent to provide to the environmental health authorities the information required to inform the views of the environmental health authorities eg on virus removal. Following that information being received, there must be real consultation between the discharger, the EA and the authorities. As to the public health aspects of the proposed consent, it is suggested that the competent authorities should have power to give directions to the EA in relation to objectives, or direct conditions, which the consent to discharge shall achieve in relation to environmental health. There is an analogy in relation to conservation objectives in Special Areas of Conservation and also in relation to operating conditions notified by Ministers to local authorities in relation to shellfish purification plants. In that instance there is now an appeal mechanism available to the operator.

CONCLUSIONS

  24.  In the view of the PHA, there is considerable concern as to the way in which the EA makes decisions which have implications for public health, and for sea fisheries. It is our understanding that similar problems may as to public health also be arising in relation to other fields of regulation eg in Integrated Pollution Control. This requires urgently to be remedied but the situation is complex and difficult . It is entirely unsatisfactory that local authorities should be required by law to endeavour to resolve after the event by statutory nuisance procedures problems which the EA have been assisted to deal with properly before consent decisions are made,

  25.  The conflict of interest between the EA's role through AMP process, together with lack of expertise in sea fisheries which is reflected in the non-existent public profile of its sea fisheries role, suggests that the Agency should be divested of sea fisheries powers, and its fisheries roles, if retained, limited to upstream of the freshwater tidal limit.