Saturday, April 13, 2024

‘Aqua, Vigor, et Vastum’ – Squaring the Circle

The United Nations assessed that during 2017 in excess of 80% of the world’s wastewater was discharged into the environment without any filtration or disinfection, but wastewater contains plenty of raw material that can be turned into fuel. In the second of three articles, the UN’s assessment has prompted Solicitor Peter McHugh and Forensic Engineer Professor Robert Jackson to discuss the challenges facing the UK in continuing to satisfy its growing needs relating to ‘Water, Energy & Waste’ whilst simultaneously protecting against risks to human health emanating from environmental pollution.

Squaring the circle may comprise the extraction and production of energy from various sources of waste, including organic materials that are inherently injurious to human health, whilst simultaneously creating a sustainable source of drinking water. By way of example consider hydrogen gas, the lightest and most plentiful chemical in the known universe and the first element in the periodic table with an atomic number of one. The anaerobic digestion of a number of organic wastes including food waste, agricultural waste and wastewater can produce hydrogen, together with valuable acids. In so doing the process of digestion, using microorganisms comprising anaerobic bacteria, presents a sustainable solution to a number of environmental challenges by:

Removing Waste → Creating a Clean Fuel → Producing Value-added Chemicals

The circle could be considered ‘squared’ when non-greenhouse hydrogen gas, a zero carbon clean-burning fuel, is burnt in air to produce water and to release energy:

Organic Waste → (2H2) Hydrogen + (O2) Oxygen → (2H2O) Water + Energy

Electro-active anaerobic bacteria were first discovered in 1993 and have been identified as living in environments inhospitable to most other life forms. Such bacteria are essential to microbial fuel cells which provide one form of sustainable biotechnology by generating electricity from biological wastes. Electro-active bacteria occur naturally in sewers and wastewater treatment plants, and consume organic matter whilst at the same time producing electrons, electrically charged sub-atomic particles essential to chemical, electrical and magnetic activity. These bacteria also grow biological ‘wires’ comprising microscopic filaments called ‘pili’, the Latin word for ‘hairs’, that are approximately 1/100,000 the width of a human hair. The electrons produced from the organic matter are subsequently conducted through these ‘wires’ in the form of electricity to produce hydrogen from the wastewater being treated.

Once again, the circle could be considered ‘squared’.

The ‘Waste Duty of Care Code of Practice’ was issued in November 2018 and sets out practical guidance on how to meet waste duty of care requirements. It is issued under Section 34 (7) of the Environmental Protection Act 1990 in relation to the duty of care set out in Section 34 (1) of that Act. This Code applies to any party engaged in importing, producing, carrying, keeping, treating, disposing of or, as a dealer or broker having control of, certain controlled wastes in England or Wales. Failure to comply with the duty of care is an offence with no upper limit on the court’s power to fine. In some instances a fixed penalty notice may be issued for failure to comply with the duty of care in place of prosecution. The Code is admissible as evidence in legal proceedings for S34 (1) offences and its rules must be taken into account where relevant to questions raised in the case.

The regulator for the duty of care is the Environment Agency, the body responsible for environmental regulation in England together with Natural Resources Wales in Wales and local authorities. Excluding industrial and commercial processes, for example in the case of householders who occupy domestic properties, a separate duty of care applies which is limited

to requiring parties to take all reasonable measures available to them to ensure their waste is only transferred to an authorised person. Waste not classed as controlled waste include:

  • Waste listed in Article 2 of the waste framework directive e.g. waste waters, decommissioned explosives, radioactive waste;
  • Waste containing animal by-products where it is collected and transported in line with animal by-products regulations; and
  • Sewage, sludge or septic tank sludge where it is supplied, managed or used in ways described in Regulation 3 of the Controlled Waste (England & Wales) Regulations 2012.

To examine current and ongoing problems it is perhaps prudent to reflect on previous cases. 163 years ago Londoners were suffering from ‘The Great Stink’ that emanated from the River Thames and was created by its pollution from raw sewage. This gave rise to Members of Parliament absenting themselves from the House of Commons due to the resulting intolerable stench. Yet, as recently as a decade ago the Environment Agency’s annual analysis of water company performance stated that four out of nine water and sewerage companies were rated as poor or requiring improvement. Hence despite ongoing efforts within the waste sector to comply with the duty of care code there remains a growing need to address water pollution in England and Wales, and as recently as October 2020 it was reported that England’s privatised water monopolies had recorded their worst ratings for tackling pollution in 8 years. The level of water pollution in UK waters remains in urgent need of attention with none of England’s rivers have ‘bathing water status’ despite the growing popularity of wild swimming. Environment Agency data indicates only 16% of all open waters and 14% of rivers meeting the minimum ‘good’ ecological status with none meeting minimum targets on chemical status.

Under the current self-reporting system it is the individual water companies who are required to tell the regulator the amount of untreated sewage and storm water that is released into England’s water ways but questions remain regarding the actual volumes discharged. Rivers throughout the UK are amongst the worst in Europe with not one passing the official test for water purity. Raw sewage was discharged into UK watercourses on 403,000 occasions in 2020 with the worst offender being United Utilities who allegedly poured untreated sewage into river waters for a total of 726,000 hours. This ongoing struggle against mindless and wanton environmental vandalism is perhaps best illustrated by a recent court case. On the 10th July 2021 the Times Newspaper reported a legal case involving a UK water company, Southern Water, which had deliberately dumped raw sewage into the sea and rivers and covered up its actions by “very significant under-reporting” of the spills it made. A total of between 16 billion and 21 billion litres of untreated sewage were dumped into the sea resulting in the company receiving a record fine of £90 million. The Environment Agency, who brought the criminal case to court after its largest ever investigation, claimed it was done for financial gain and three former members of Southern Water staff have been convicted of obstructing data collection. The Chairwoman of the Environment Agency stated “Fines for environmental offences are starting to reach the same level as the highest fines for crimes in financial services”. The body responsible for economic regulation of the privatised water and sewerage industry in England and Wales, the Water Services Regulation Authority (Ofwat), also found that Southern Water had manipulated water samples and “deliberately misreported data” for seven years until 2017 to avoid financial penalties. The Judge, Mr Justice Jeremy Johnson, stated that Southern Water had a history of criminal activity for its “previous and persistent pollution” and that the water company’s previous board “flagrantly disregarded the law”.

Potable water treatment plants also rely on energy intensive processes to provide reliable, safe and drinkable supplies to customers though changes in the quality of the raw water source may require changes to the operation of a water treatment plant with consequential changes in energy use and embodied energy. Coupled with these variations are the inevitable impacts of geographic location and climate change which is expected to bring rises in levels

of precipitation and average global temperatures increasing from 34.5°F to 42.4°F by 2100 to varying measures around the globe. Climate change and unsustainable human activity go hand in hand in creating water-stress and water-resource depletion, and threats to water availability/scarcity and quality will remain an important indicator of public health by way of its direct links to food security, sanitation, hygiene, and resulting burden from disease.

Strictly speaking, ‘squaring the circle’ relates to the construction of a square equal in area to a given circle with the restriction of being able to complete the task by employing only a compass and a straightedge. In practice this geometric problem has no solution and so this longstanding mathematical puzzle became a metaphorical expression referring to ‘an attempt to do something impossible’. Perhaps in time the conjoined efforts of scientists, engineers and lawyers will be able to unpick the seemingly impossible environmental task presented by water, energy and waste.

About the authors:

Peter McHugh is a Partner in the Birmingham office of Clarke Willmott Solicitors. He specialises in Construction as well as Green Energy issues and is a Chartered Arbitrator and Accredited Mediator. Professor Robert Jackson is the former Associate Head of the School of Computing, Science & Engineering, and held the Mouchel-Parkman Chair in Sustainable Engineering Technologies within the Department of Civil Engineering, at the University of Salford.

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