A Review of Bonfire Smoke Nuisance Controls

Transcription

1 A Review of Bonfire Smoke Nuisance Controls Report by Netcen to the Department for Environment, Food and Rural Affairs January 2006

2 Department for Environment, Food and Rural Affairs Nobel House 17 Smith Square London SW1P 3JR Telephone Website: Crown copyright 2006 Copyright in the typographical arrangement and design rests with the Crown. This document/publication is value added. If you wish to re-use, please apply for a Click-Use Licence for value added material at Alternatively applications can be sent to: Office of Public Sector Information Information Policy Team St Clements House 2-16 Colegate Norwich NR3 1BQFax: HMSOlicensing@cabinet-office.x.gsi.gov.uk Information about this publication and further copies are available from: Local Environmental Quality Division Statutory Nuisance Policy Room 4/E10 Defra Ashdown House 123 Victoria Street London SW1E 6DE address: noise@defra.gsi.gov.uk This document is also available on the Defra website. Published by the Department for Environment, Food and Rural Affairs

3 Executive Summary This research was sought by Defra, and through it the Devolved Administrations of the Scottish Executive, the National Assembly for Wales, and the Department of the Environment in Northern Ireland. The recommendations in this report may not represent the views of these Departments, but may initiate consideration on any further measures which may be desirable for dealing with bonfire nuisance. Local Authorities receive a large number of complaints each year in relation to smoke from bonfires or the burning of matter, such as tyres and plastic. The occurrence of these complaints tends to be seasonal. The source of smoke can vary widely from a domestic garden waste bonfire, commercial premises disposing of waste, to allotments and the burning of agricultural waste. In each case the smoke might cause a nuisance and it could lead to a significant reduction in air quality. If the person wants to take the matter further it is possible that the matter may be capable of being dealt with as a statutory nuisance case under the provisions of the Environmental Protection Act 1990 (Public Health (Ireland) Act 1878 in the case of Northern Ireland). The aim of this study was to review and research the extent of complaints received by Local Authorities and their frequency. A further aim was to provide advice on the legal and practicable remedies available to Local Authorities and private individuals to control such smoke problems. The scope of this report is on the powers available to local authorities under the statutory nuisance regime of sections of the Environmental Protection Act Waste Management Regulations are referred to in this report, but it is not the intention of this report to recommend changes to these Regulations. It has been possible to obtain approximate figures for the volume of complaints in a number of key areas. The scale of the problem varies across Local Authorities, but on the whole a significant number of complaints about bonfire smoke have been made to Local Authorities in the UK. The part year 2004 survey (involving 47 Local Authorities) shows bonfire complaints to have reached 5,424, and as the historical trend indicates this is expected to continue to rise. From a total of 29,147 complaints made in 2000, only 300 notices were served and five prosecutions brought to court. When comparing the number of complaints to the number of prosecutions, it becomes clear why the public may get the impression that Local Authorities have an inability or unwillingness to exercise adequate control over smoke nuisance offenders, the location of bonfires or the collection and dumping of waste. Difficulties arise because the current legislation requires a statutory nuisance to be caused, or likely to occur/recur, before notices can be served and offenders prosecuted. Unfortunately, it is often difficult for Local Authorities to prove that a statutory nuisance is being caused and as a result many complaints do not result in notices being served or prosecutions. In some instances Local Authorities have found that smoke problems originate from more than one offender and this adds to the difficulty in proving a statutory nuisance. 1

4 The problem of bonfire smoke nuisance is not a uniform one and as a result the measures implemented to tackle the problem should not necessarily be uniform. It was recommended by Local Authorities that appropriate control measures be used to reflect the types of complaint they receive. The following approaches have been recommended by Local Authorities and are listed in order of their overall preference: 2 1. Bonfire Bans: A common suggestion from Local Authorities is to ban the use of bonfires as a method of waste disposal where the burning of such waste is not banned by Regulations already. Individual Local Authorities that see fit to use this control measure could voluntarily implement bonfire bans. This approach would require the use of adoptive legislation and would advocate new powers for Local Authorities to ban bonfires in selected areas. Authorities in sensitive air quality areas and areas of high population density, where receptors are likely to be closer to the bonfire, may find it beneficial to ban domestic bonfires. Areas where previous educational and awareness campaigns have not been successful could also face stricter controls. Bans may be more appropriate in built up areas where public exposure levels are greater compared to those in rural areas. 2. Stricter Legislation: Current restrictions under the Clean Air Act (1993) could be extended to make it an offence to emit dark smoke from domestic premises where this is not part of a trade or industrial operation. Additional powers could be given to Air Quality Management Areas. Legislation could be adapted also to make it easier to deal with one off bonfires, which can be hard to deal with under statutory nuisance legislation. 3. Bonfire Permits: Permits could be introduced to restrict the use of domestic bonfires. However, there is the danger that this could be costly and difficult to implement. It is also not clear whether a Local Authority has the potential to become liable for any loss or injury that may result from bonfires allowed under their permits, unless specific legislation is introduced. 4. a) Improved Education: Leaflets and websites are the most common methods used by Local Authorities to deal with bonfire nuisance and air pollution. These are valuable tools but they do not always have a significant effect on the number of nuisance complaints received. Their effectiveness could be improved if leafleting was carried out around peak bonfire periods. Valuable information is displayed on council websites, but this may not be the best media to inform people having bonfires. Information could be more effectively disseminated to the public from places such as garden centres and recycling points. There is also a paramount need for engagement at a local level with communities to explain the need for increased level of responsibility and control and to influence those directly involved. For example, good practice guidance could be agreed between public bodies and the local communities. Linking bonfire issues with waste issues could raise awareness. For example, Local Authorities often send newsletters to publicise their attempts at combating waste. These publications could incorporate information on bonfires and promote alternative waste recovery options such as composting. 4. b) Improved Waste Management: It is recommended that alternative waste recovery options be promoted. Options such as recycling and composting

5 3 should be made more attractive so as to discourage the use of bonfires as a means of waste disposal. Free composting bins could be offered as incentives. Burning of furniture should be prohibited. Current Local Authority charges for disposal of bulky waste items such as furniture could encourage residents to burn their waste. Local Authorities could minimise this risk by offering free collections at certain times of the year. Civic amenity site opening hours could be extended also. Consideration needs to be given to the possibility that hazardous waste is disposed of on bonfires if accepted by fewer civic amenity sites.

6 Contents 1 INTRODUCTION BONFIRE SMOKE WHAT ARE BONFIRES? BONFIRE SMOKE AND NUISANCE BONFIRE SMOKE AND AIR QUALITY POLLUTANTS FROM SPECIFIC SOURCE TYPES METHODOLOGY FOR THE ASSESSMENT OF AIR QUALITY POLLUTION AROUND BONFIRES REVIEW OF GUIDANCE/REGULATIONS THE ENVIRONMENTAL PROTECTION ACT THE PUBLIC HEALTH (IRELAND) ACT WASTE MANAGEMENT REGULATIONS THE CLEAN AIR ACT Environment Act THE HIGHWAYS ACT CODES OF PRACTICE FOR OPEN AIR BURNING LEGISLATIVE SUMMARY INTERNATIONAL EXAMPLES OF REGULATIONS USED TO CONTROL SMOKE NUISANCE EXTENT OF BONFIRE SMOKE NUISANCE ANNUAL NUMBER OF BONFIRES AND SEASONALITY OF COMPLAINTS RANKING OF ADVERSE IMPACTS FROM BONFIRES MAIN SOURCE OF BONFIRE MATERIAL MAIN LOCATIONS FOR BONFIRES STRATEGIES USED TO CONTROL BONFIRE NUISANCE INFORMATION DISSEMINATION BY LOCAL AUTHORITIES ACTION BY LOCAL AUTHORITIES IN RESPONSE TO BONFIRE COMPLAINTS SUGGESTIONS FOR DEALING WITH BONFIRES MONITORING STRATEGIES ADOPTED BY LOCAL AUTHORITIES THRESHOLD LEVELS FOR ACTION INFLUENTIAL FACTORS IN ASSESSING NUISANCE CONCLUSIONS GAP ANALYSIS REFERENCES 40 Appendix A Appendix B Local Authority Questionnaire Survey Results: Suggestions From Local Authorities 4

7 Appendix C Appendix D Appendix E Appendix F Suggestion for the Defra website: Bothered by Smoke? There s no Need to Worry Example Information Leaflet Sample Council Complaint Proforma Bonfire Permit 5

8 1 Introduction Local Authorities receive a large number of complaints each year in relation to smoke from bonfires or the burning of matter, such as tyres and plastic. The occurrence of these complaints tends to be seasonal. The source of smoke can vary widely from a domestic garden waste bonfire, business premises disposing of waste, to allotments and the burning of agricultural waste. In each case the smoke might cause a nuisance and it could lead to a significant reduction in air quality. Consequently, members of public may contact their Local Authority assuming that control mechanisms are in place to minimise exposure to such nuisance situations. If the person wants to take the matter further it is possible that the matter might be dealt with as a statutory nuisance case under the provisions of the Environmental Protection Act 1990 (Public Health (Ireland) Act 1878 in the case of Northern Ireland).However, smoke cannot be dealt with as a statutory nuisance under the Environmental Protection Act 1990 where smoke is emitted from industrial or trade premises. Only business (and domestic) premises can be dealt with under the statutory nuisance regime where they are causing smoke nuisance. The aim of this study was to review and research the extent of nuisance complaints received by Local Authorities and their frequency. A further aim was to provide advice on the legal and practicable remedies available to Local Authorities and private individuals to control such smoke problems. The objectives of this study were as follows: to review the existing guidelines available to deal with problems of bonfire smoke; to review whether there is a need for improved enforcement powers to deal with bonfire nuisance or whether existing measures are sufficient; and to produce a report including a review of bonfire smoke complaints together with details of when they occur, how often and the strategies used to deal with them. 1

9 2 Bonfire Smoke 2.1 What are Bonfires? A bonfire is an outdoor fire, either celebratory or for destroying waste. Bonfires have been used through the centuries to mark moments of danger or herald times of rejoicing and frequently have associations with significant religious or political events. In addition to community events, bonfires have long been used for practical purposes. These have included small domestic bonfires for the disposal of garden waste and others used for the burning of trade waste by commercial businesses. Bonfires or open burning can be done in open drums or baskets, in fields and yards, and in large open dumps or pits. Materials commonly disposed of in this manner include municipal waste, car body components, landscape refuse, agricultural field refuse, wood refuse, bulky industrial and domestic refuse, garden waste and leaves. Bonfire emissions are discharged at ground level in an uncontrolled manner. The emissions are affected by many variables, including: wind; ambient temperature; atmospheric stability; composition and moisture content of the debris burned; compactness of the pile; and point in the burning cycle. The profile of smoke emissions from bonfires will vary throughout the burning cycle, in general: elevated smoke emissions are anticipated when the bonfire is ignited. During this phase moisture content, lack of oxygen and other factors that affect the potential increase in combustion temperature are critical; once maximum combustion temperature is reached smoke emissions may fall or change to a lighter shade if suitable combustion conditions prevail; and once the bulk of the volatile material is combusted and the proportion of ash reaches a peak there may be insufficient heat or lack of oxygen to sustain combustion. Under these conditions the amount of smoke will rise. The characteristics described here are not dissimilar from any short-term batch incineration process. 2

10 2.2 Bonfire Smoke and Nuisance The Chartered Institute of Environmental Health (CIEH) has collated historical data on smoke nuisance. Table 2.1 shows the figures for smoke nuisance taken from the CIEH Annual Environmental Health Report, which consists of data gathered from Local Authority Environmental Health Departments across England and Wales. Data are provided on a voluntary basis and the number of authorities submitting returns varies each year. This means that the figures are not directly comparable from one year to the next. By way of comparison Table 2.2 compares the number of complaints received about smoke with other causes of complaint associated with air pollution. The nature of the smoke data presented in Table 2.1 is unclear. Smoke nuisance in the broad context may include smoke attributed to bonfires but it may also include smoke nuisance attributed to domestic fires. The historic data, although interesting, are unsuitable for the purpose of steering or justifying nuisance control regulation. Notwithstanding the fact that smoke may cover a broader spectrum of sources than are of interest in this project, the data presented in Tables 2.1 and 2.2 are worthy of comment as follows: complaints due to smoke are amongst the most prevalent of nuisance situations attributed to air quality parameters. It is also possible that some complaints assigned to accumulation or deposits may arise from airborne ash or debris that originally emanated from bonfire activities; the number of complaints relating to odours and fumes is significant also. Some of these could relate to bonfire emissions, although it seems likely that the accompanying smoke would be the principal cause for complaint; the ratio of complaints received to the number of premises subject to complaint is such that few problem situations result in more than one complaint. This may indicate a lack of willingness to complain, a poor understanding of how to register a complaint or the extremely localised impact of most sources; and the ratio of the number of premises subject to complaint to the number of notices served indicates that most problem situations do not give rise to persistent or ongoing smoke problems, or that mechanisms adopted by Local Authorities often are sufficient to remedy the problems. Beyond these general comments the existing data are not of sufficient quality for more specific conclusions or recommendations to be derived. 3

11 Table 2.1: Complaints of Smoke Nuisance 1998/ /00 Complaints received 22,016 29,147 Complaints per million population Premises subject to complaint 16,148 21,026 Notices served Prosecutions 4 5 Convictions 4 5 Table 2.2: Comparison of Causes of Complaint Complaint 1998/ /00 Smoke 22,016 29,147 Fumes of gas 5,120 4,778 Dust, steam or other effluvia 4,556 4,524 Accumulation or deposits 43,171 52,280 Odour agriculture 4,295 4,650 Odour industrial 8,670 10,135 Source: Environmental Protection Statistics 1998/99 & 1999/2000, CIEH Publications. 2.3 Bonfire Smoke and Air Quality The composition of bonfire waste gases is affected by many variables including the type of the material burnt in the fire, combustion conditions (moisture content of the debris burned and compactness of the pile) and local atmospheric conditions (i.e. wind and ambient temperature). In general, the relatively low temperature associated with open burning increases emissions of particulate matter, carbon monoxide and organic compounds, and suppresses emissions of nitrogen oxides. Smouldering bonfires often generate higher total emission levels. For example, Polyaromatic hydrocarbon (PAHs) emissions have been found to be high the day after the main bonfire. 4

12 Elsewhere it has been reported that bonfires and fireworks on and around the 5 November contribute up to 14% of the total UK emissions of polychlorinated dibenzop-dioxins and polychlorinated dibenzofurans (collectively referred to as dioxins) to the atmosphere, according to researchers at the University of Lancaster (ENDS Report 296, September 1999, p 9). Detailed analysis of air pollutants arising from open burning events was carried out also during the recent Foot and Mouth episode ( FOOT AND MOUTH - Effects on Health of Emissions from Pyres Used for Disposal of Animals : risk assessment undertaken by Department of Health, Department of Environment, Transport and the Regions, Food Standards Agency, Environment Agency and AEA Technology (24 th April, 2001)) PAHs and Dioxins PAHs and dioxins are thought to be associated with bonfires and both are products of incomplete combustion. They are formed when combustion is poor due to one or more of the following factors (all true for bonfires): low flame temperatures; incomplete mixing of fuel and oxygen; and/or low residence times at high temperatures. Dioxins are also created when metal containing ashes are held at moderate temperatures between 200 C and 350 C in contact with incompletely combusted organic matter such as soot. Smouldering bonfires provide the correct conditions for dioxin formation. A study of PAH and dioxin emissions near two community bonfire sites in Northern Ireland showed significant increases in emissions on the lighting of the bonfires. The samples were taken in Belfast on the 9 th, 11 th and 12 th of July and in Dunmurry on the 8 th, 11 th and 12 th of July. The concentrations of PAHs following the bonfire were observed to decrease whereas the concentration of dioxins continued to rise in one instance. Although PAH concentrations rose over the bonfire episode, the short-term data (Table 2.3) did not exceed the EPAQs annual average guideline for PAHs (0.25 ng/m 3 ). Table 2.3 summarises the local air concentrations before, during and after these bonfires (Coleman, 2004). 5

13 Table 2.3: PAH and Dioxin Levels During Bonfire Episodes Location Pollutant Before During After Belfast Benzo (a) pyrene (ng/m 3 ) < <0.008 Dioxins (fg WHO- TEQ/m 3 ) Dunmurry Benzo (a) pyrene (ng/m 3 ) < <0.02 Dioxins (fg WHO- TEQ/m 3 ) this range is shown because some congeners were not detected, hence the true toxic equivalent lies somewhere between these two values; the data have been taken from the PAH network operated by Netcen Carbon Monoxide Carbon monoxide (CO) is an odourless gas that can be produced by combustion sources including fires. It is emitted from fuels such as oil, wood or coal when combustion is incomplete. High levels of CO interfere with the uptake of oxygen in the blood and can give rise to impaired physical co-ordination, affect vision, the central nervous system, the cardiovascular system, cause unconsciousness and even death. However, background levels of CO are usually very low so that air concentrations would fall rapidly as distance from the fire increased. Consequently, the effects in the environment (if any) would be usually in the immediate vicinity of the source Particulates High levels of particulate pollution are often present during and after bonfire events and are evident by the large amounts of smoke generated. Most of the particles produced (in terms of mass) are often assumed to be less than 10 m diameter, although larger particles and flakes of ash will also be produced. The largest particles and flakes settle out quite rapidly from the air and are most likely to present a deposition problem in the immediate vicinity of the bonfire only. However, smaller particles have the potential to remain airborne and travel greater distances. Under certain weather conditions, they can accumulate in the atmosphere causing local air quality issues Oxides of Nitrogen Fires fix atmospheric nitrogen and generate oxides of nitrogen such as nitric oxide (NO) and nitrogen dioxide (NO 2 ). Oxides of nitrogen are referred to as NO x. Amounts of nitrogen oxides emitted from bonfires will be low since their formation is temperature dependent and high combustion temperatures are favourable for their formation. These conditions are not present generally in most bonfires. 6

14 2.3.5 Sulphur Dioxide Sulphur dioxide (SO 2 ) is a corrosive acid gas, which forms acid rain when combined with water. Sulphur contained in fuels used in bonfires can be oxidised to SO 2 during combustion. At high levels, sulphur dioxide is a strong irritant to the eyes and mucus membranes. Concentrations as low as a few parts per billion are liable to produce narrowing of the airways and can stimulate coughing. 2.4 Pollutants from Specific Source Types Combustion of Tyres Although existing waste management legislation controls the burning of tyres, which creates dark smoke, tyres are often disposed of in open fires. The open burning of tyres is not permitted in England & Wales and constitutes the illegal disposal of waste under section 33 of the Environmental Protection Act Combustion of waste tyres produces thick clouds of sulphurous dark smoke containing around 50 toxic compounds, including both particulate materials and gases. Table 2.4 presents a summary of some emissions that have been reported for tyre burning Combustion of Wood Some types of wood (e.g. railway sleepers and wood prepared for construction) are treated with preservatives such as creosote, pentachlorophenol (PCP), lindane (gamma-hexachlorocylohexane) and Copper/Chrome/Arsenic (CCA). If these types of wood are used in bonfires, the concentrations of dioxins and heavy metals emitted would be higher than otherwise Combustion of Plastics A variety of pollutants can be produced during the combustion of municipal waste, including CO, SO 2, NO x and particulate materials. Emission factors for the open burning of plastic waste are summarised in Table Combustion of Municipal Waste A variety of pollutants can be produced during the combustion of municipal waste, including CO, SO 2, NO x and particulate materials. Emission factors for the open burning of municipal waste are summarised in Table

15 Table 2.4: Emission Factors from Open Burning of Tyres (USEPA, 1992) Pollutant Particulate Metals Aluminium Arsenic Iron Silicon Zinc Chromium Nickel PAHs Acenaphthene Acenaphthylene Anthracene Benzo (A) pyrene Benzo (B) fluoranthene Fluorene Phenanthrene Pyrene Organic Compounds Fluorene 1-Methyl naphthalene Benzene Butadiene Biphenyl Cyanobenzene Phenol Styrene Tyre Condition (mg/kg tyre) Chunk Shredded

16 Table 2.5: Emission Factors 1 from Open Burning of Plastic Film (USEPA, 1992) Pollutant Organic Factors Benzene Toluene Ethyl benzene 1-Hexene PAHs Anthracene Benzo (A) pyrene Benzo (B) fluoranthene Benzo (e) pyrene Chrysene Phenanthrene Pyrene Retene Units mg/kg plastic mg/kg plastic mg/kg plastic mg/kg plastic mg/kg plastic g/kg plastic g/kg plastic g/kg plastic g/kg plastic g/kg plastic g/kg plastic g/kg plastic g/kg plastic Condition of Plastic Unused Used Table 2.6: Emission Factors from Open Burning of Municipal Waste (USEPA, 1992) Source Particulate Sulphur Oxide Carbon Monoxide Methane TOC Non Methane Nitrogen Oxides Municipal Refuse (kg/t) Automobile components (kg/t) 50 Negligible An emission factor is a representative average value that relates the quantity of a pollutant emitted from an activity associated with the release of that pollutant. 9

17 2.4.5 Agricultural and Organic Material Organic refuse burning such as crops, leaves and wood produces emissions, dependent on the moisture content of the refuse. Emissions from leaf burning are also dependent on the density and ignition location of the leaf piles. Increasing the moisture content generally increases the amount of organic and particulate emissions. Carbon monoxide emissions decrease if the moisture content is high but increase if the moisture content is low. Increasing the density of the piles increases the amount of hydrocarbon and particulate emissions, but has a variable effect on carbon monoxide emissions. The emission factors for the burning of organic waste and leaves are summarised in the Table 2.7. Table 2.7: Emission Factors from Open Burning of Agricultural Material and Leaves (USEPA, 1992) Refuse Category Particulate (kg/t) Carbon Monoxide (kg/t) Methane TOC (kg/t) Non Methane TOC (kg/t) Unspecified field crops Corn Weeds Forest residues Unspecified leaves Methodology for the Assessment of Air Quality Pollution Around Bonfires The following methodology has been suggested to estimate peak concentrations of emissions from bonfires and the distances at which these emissions will be reached. Information provided by this assessment could be used to control the location of bonfires. Several assumptions have been made to estimate the levels of pollution around bonfires, as follows: Average bonfire size: 3 x 1 x 1 m; Bonfire content: Green Waste; Density of green waste: 0.2 tonnes/m 3 ; Average burning time for the bonfire: two hours; 10

18 Emission factors from forest residues (Table 2.7) have been substituted for green waste; and Effective height of release: 0m. Using this information, the average mass of a garden bonfire is estimated to be 0.6 tonnes. Table 2.8 illustrates the emission factors from the domestic bonfire. Table 2.8: Emission Factors from a Typical Domestic Bonfire (3m 3 ) Burning Green Waste Refuse Category Particulate (kg/t) Carbon Monoxide (kg/t) Methane TOC (kg/t) Non Methane TOC (kg/t) Green Waste The Environment Agency s Horizontal Guidance Note IPPC H1 provides details on how to quantify impacts of emissions to air (Environment Agency, 2003). This approach has been adopted to estimate the peak concentrations of emissions from bonfires. The results of process contributions from bonfires are outlined in Table 2.9. Table 2.9: Emissions to Air from a Typical Domestic Bonfire (3m 3 ) Burning Green Waste Particulate Carbon Monoxide Methane TOC Non-Methane TOC Release Rate (g/s) Short Term Dispersion Factor (μg/m 3 g/s) Process Contribution (μg/m 3 ) Short Term EAL Benchmark (μg/m 3 ) 3,900 3,900 3,900 3,900 2,574 22, , , Based on this approach, it can be seen that process contributions from bonfires exceed the short-term EAL benchmarks for particulates and carbon monoxide. For most domestic bonfire situations high pollutant concentrations will only be experienced for a relatively short period of less than approximately six hours. If bonfires are lit on an infrequent basis they are unlikely to influence national air quality 11

19 objectives. They may, however, cause harm locally due to the relatively high level of particulates released over a short space of time and distance. It should be noted that bonfires have a degree of thermal buoyancy that may not be reflected in the Environment Agency s H1 approach. The effective height of release could be considered as zero where the point of discharge is less than 3 m above the ground or building on which it is located, or is greater than 3 m above the ground or building on which it is located but less than the height of any building within a distance of 5 L from the point of discharge (where L is the lesser of the building height and the maximum projected width between two points the same height in the building). This approach does not indicate where the maximum concentration is likely to occur. However, as bonfires are a ground level source of emissions, the maximum ground level concentration of pollutants might often be reached within a relatively short distance. As part of our recommendations for future work, it is suggested that pollutant emissions are better defined. There is also a need for an improved method to predict ambient pollutant concentrations. 12

20 3 Review of Guidance/Regulations Smoke nuisance created as a result of bonfires is covered under several items of UK legislation such as the Environmental Protection Act (1990) and the Clean Air Act (1993). This section summarises the relevant legislation that is used to control nuisance caused by bonfire smoke or to control the materials that are burnt such that smoke nuisance is prevented. 3.1 The Environmental Protection Act 1990 This Act places a duty on Local Authorities to investigate the likely occurrence of statutory nuisance and where it does occur to require and enforce implementation of measures to rectify them. Nuisance is a concept based in common law, and any decision made by a Local Authority on what constitutes a statutory nuisance would be tested ultimately in the courts should an abatement notice be appealed against, or should a local authority take proceedings through the courts for non-compliance to an abatement notice. Complainants can also take a private action through the magistrates court under section 82 of the Environmental Protection Act (1990). Section 79 of the Environmental Protection Act (1990) lists the types of nuisance in respect of which Local Authorities must take reasonably practicable steps to investigate complaints, as well as investigate their area from time to time for such nuisances. This includes, in relation to smoke nuisance: smoke emitted from premises so as to be prejudicial to health or a nuisance; fumes or gases emitted from premises so as to be prejudicial to health or a nuisance; any dust, steam, smell or other effluvia arising on industrial, trade or business premises and being prejudicial to health or a nuisance; Under section 80 of the Environmental Protection Act 1990, Local Authorities must serve a notice ( an abatement notice ) once satisfied that a statutory nuisance exists imposing all or any of the following requirements: a) requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence; and b) requiring the execution of such works, and the taking of such other steps, as may be necessary for any of those purposes; and the notice shall specify the time or times within which the requirements of the notice are to be complied with. Where it is not possible for the Local Authority to obtain the necessary evidence to take action, or where they are reluctant to take action, individuals can consider taking their own action under Section 82 of the Act. This allows an individual to take action in the Magistrates Court and attempt to satisfy the magistrates that a smoke nuisance exists and is likely to recur. 13

21 Section 79(1)(b) of the Environmental Protection Act 1990 ( smoke emitted from premises so as to be prejudicial to health or a nuisance ) does not apply to: smoke emitted from a chimney of a private dwelling within a smoke control area; dark smoke emitted from a chimney of a building or a chimney serving the furnace of a boiler or industrial plant attached to a building or for the time being fixed to or installed on any land; smoke emitted from a railway locomotive steam engine; dark smoke emitted otherwise than as mentioned above from industrial or trade premises. 3.2 The Public Health (Ireland) Act 1878 In Northern Ireland statutory nuisance is defined under the Public Health (Ireland) Act 1878 as amended and includes: any factory, workshop, or workplace not kept in a cleanly state, or not ventilated in such a manner as to render harmless as far as practicable any gases, vapours, dust, or other impurities generated in the course of the work carried out therein that are a nuisance or prejudicial to health, or so overcrowded while work is carried on as to be dangerous or prejudicial to health of those employed therein; any trade, business, manufacture or process which is a nuisance, or which causes any grit or dust (being solid particles of any kind, other than such particles emitted from a chimney as an ingredient of smoke) or effluvia which is injurious, or likely to cause injury, to the public health or a nuisance; and smoke from premises if it is injurious, or likely to cause injury, to the public health or a nuisance. 3.3 Waste Management Regulations The Waste Framework Directive 75/442/EEC of 15 July 1975 The Waste Framework Directive is the overarching piece of European legislation on waste which includes an overarching requirement for Member States to ensure that waste is recovered or disposed of without endangering human health or causing harm to the environment. The Directive includes a range of provisions including permitting, registration, inspection and record keeping requirements for establishments and undertakings which carry out waste recovery or disposal operations. Permits can be granted for the types and quantities of waste, the technical requirements, security precautions to be taken, disposal site and treatment methods. Permits may be granted for a specific period, they may be renewable, subject to conditions and obligations, or if the intended method of recovery or 14

22 disposal is unacceptable from the point of view of protecting human health and the environment, they may be refused. The permitting and registration controls summarised above do not apply to private individuals. However, private households are subject to Article 4 of the Directive which states that Member States shall take the necessary measures to ensure that waste is disposed of without endangering human health and without harming the environment, and in particular: - without risk to water, air, soil and plants, and animals; - without causing a nuisance through noise or odours; and - without adversely affecting the countryside or places of special interest. The requirements of the Directive have been transposed in the provisions of Part II of the Environmental Protection Act 1990 and the Waste Management Licensing Regulations 1994 (as amended). A distinction is made between the applicability of these requirements to commercial, agricultural and domestic premises: Commercial premises disposing of waste: Commercial waste is controlled waste for the purposes of section 75 of the 1990 Act. This means that if it is disposed of without a waste management licence (i.e. by unregulated open burning), an offence has been committed. Before a licence is issued the Environment Agency: considers whether it can write licence conditions which will ensure that the proposed activities do not cause pollution of the environment or harm to human health; checks that the activities to be licensed have planning permission or equivalent (where it is needed); and decides whether the applicant is a fit and proper person to hold a licence. Burning of agricultural waste: Agricultural waste is currently excluded from the definition of controlled waste by virtue of section 75(7)(c) of the 1990 Act. This exclusion is the subject of infraction proceedings by the European Commission in relation to (a) the Waste Framework Directive; (b) the Hazardous Waste Directive; and (c) the Landfill Directive. The Government has accepted that the exclusion contravenes the Directives and has given a commitment to introduce, following consultation, the Regulations necessary: to apply the existing waste management controls which the UK has in place to transpose the requirements of the Directives:- to waste which is at present excluded from the definition of controlled waste under section 75(7)(c) of the 1990 Act and:- which is not excluded from control under the Directives by Article 2 of the Waste Framework Directive. 15

23 The Regulations necessary to apply waste management controls to agricultural waste are due to come into force in When the proposed Regulations are introduced farmers and growers will no longer be able to dispose of their waste in an unregulated way. The burning of small quantities of wood and plant matter will continue to be allowed under a licensing exemption, subject to certain conditions. Unregulated open burning of other wastes will no longer be allowed. Domestic garden waste bonfires: The Waste Framework Directive s permitting and registration requirements apply to establishments or undertakings which carry out waste disposal or recovery operations. When the UK transposed the revised Waste Framework Directive in May 1994, the then Department of the Environment provided guidance on the Directive and the provisions in the Regulations that implement it in DOE Circular 11/94. This guidance explained that the phrase establishments or undertakings may be taken to include any organisation, whether a company, partnership, authority, society, trust, club, charity or other organisation, but not private individuals. The European Commission has since confirmed this interpretation. Thus private households are excluded from the permitting requirements of the Waste Framework Directive. In the UK this means that private householders are not subject to the requirement for a waste management licence. Private householders are, however, subject to Article 4 of the Waste Framework Directive, and Defra is taking steps through the Draft Waste Management (England and Wales) Regulations to ensure full and complete transposition in relation to householders disposing of their waste on domestic property. More specifically, the proposal is to amend section 33(2) of the Environmental Protection Act 1990 to ensure that household waste disposed of within the curtilage of a domestic property is disposed of in compliance with the Waste Framework Directive (i.e. without causing environmental pollution or harm to human health) The Waste Duty of Care under section 34 of the Environmental Protection Act 1990 (the 1990 Act) Section 34 of the1990 Act places a duty of care on anyone that is the holder of controlled waste. That is, anyone that produces, imports, carries, keeps, treats or disposes of controlled waste or as a broker has control of such waste. Controlled waste is defined (section 75(4)) as household, industrial or commercial waste. Householders are partially exempt from the Duty of Care where they are dealing with their own household waste. However, this does not exempt householders from the duty of care where: a householder is disposing of waste that is not from his property (for example, waste from his workplace; or waste from his neighbour s property); or under section 34(2A) of the 1990 Act, a householder transfers controlled waste to an unauthorised person who is not the local authority municipal waste collection service. 16

24 It also does not exempt someone who is not the occupier of the property where they produce the waste (for example, a builder carrying out works to a house he does not occupy). The duty of care requires everyone who has control of waste to take all measures that are reasonable in the circumstances:- (a) to prevent any contravention by another person of waste management controls; (b) to prevent the escape of the waste from his control or that of any other person; and (c) on the transfer of the waste, to ensure that: (i) it is transferred only to an authorised person (e.g. a registered waste carrier or someone who holds a licence to recover or dispose of the waste); (ii) a written description of the waste is transferred; (iii) a transfer note is completed and signed by both parties to the transfer; and (iv) copies of the written description and the transfer note are kept by both parties for 2 years. Further information about the duty of care is available on the Defra website at Legislation is in place to ensure that any person who generates controlled waste as part of their business disposes of it at registered waste facilities, or passes it to a person authorised to transport the waste. Such waste could include tyres, plastics, painted wood, mattresses and other items that when burnt will be harmful to the environment and to people s health. Such waste should not be disposed of on bonfires The Draft Waste Management (England and Wales) Regulations 2006 The burning of agricultural waste and plastic is directly covered under the Draft Waste Management Regulations, which were the subject of a stakeholder consultation which took place between December 2004 and March These draft regulations include guidance for the open burning of waste. The burning of small quantities of wood and plant matter will continue to be allowed under an exemption, subject to certain restrictions. Uncontrolled burning of other waste materials will no longer be allowed. Hedge trimmings and grain store sweepings can be burnt under a waste management licensing exemption that needs to be registered with the Environment Agency. Certain conditions will apply

25 3.3.4 Animal By-Products Regulation 2005 (S.I. 2005/2347) [has repealed S.I. 2003/1482] The Animal By-Products Regulations 2005 apply, inter alia, to the disposal of fallen stock. Fallen stock cannot, generally, be buried on farms and must either be removed for disposal at an approved facility or disposed of in an approved incinerator on-farm. Whole discarded bodies of dead animals arising from within the context of agricultural or farming operations are excluded from the scope of the Waste Framework Directive where they are subject to control under the Animal By-Products Regulation. Open burning of carcases remains permissible under the terms of the Animal By- Products Regulations only in the following situations: In designated remote areas [Isles of Scilly and Lundy Island]; and During outbreaks of certain diseases, in accordance with a notice of the Secretary of State under Article 24(1)(c) of Regulation (EC) No.1774/ The Clean Air Act 1993 In respect of controlling air pollution arising from the burning of bonfires, the primary legislation is the Clean Air Act This order offers an approach to dealing with the issue. It prohibits the emission of dark smoke from industrial or trade premises or other premises on which waste originating from trade sources is burned. The person responsible for complying with this provision is the occupier of the premises. In Northern Ireland the equivalent legislation is the Clean Air (Northern Ireland) Order In the Clean Air Act 1993, dark smoke controls cover all materials which are burned on industrial or trade premises and which produce emissions of dark smoke, with the exception of those listed in the exemption regulations (The Clean Air (Emission of Dark Smoke) Exemption Regulations 1969 (S.I. 1969/1263)) and which may only be burned under specific conditions. Under section 2 of the Clean Air Act 1993 it is an offence to emit dark smoke from industrial or trade premises, and the maximum fine is 20,000. Under section 33, it is an offence to burn insulation from a cable with a view to recovering metal from the cable save under certain conditions. This applies to all premises and convicted persons may face fines of up to 5,000. It is an offence to generate dark smoke from a bonfire on an industrial site or trade premises. Therefore, the burning of plastics, cables, rubber, bituminous material or any other product capable of generating dark smoke is prohibited. Under section 51, the Local Authority must notify any persons responsible for causing emission of the dark smoke of the fact, in writing, within four days of the offence. 18

26 3.5 Environment Act 1995 Under the Environment Act 1995, Local Authorities are required to work towards national air quality targets. Section 83 makes it a requirement for Local Authorities to designate Air Quality Management Areas where air quality targets are not being met, or are unlikely to be met. If bonfires were the cause of the problem, the Local Authority would have to take action using existing powers. However, so far no Air Quality Management Areas have been declared as a result of emissions from bonfires. 3.6 The Highways Act 1980 Under section 161 of the Highways Act 1980 it is an offence to light a fire near the carriageway, which results in causing injury, interruption or endangerment to a user of the highway (in Northern Ireland, Article 89 of the Roads (NI) Order 1993). 3.7 Codes of Practice for Open Air Burning Agriculture The former Ministry of Agriculture, Fisheries and Food (MAFF) issued guidelines for good agricultural practice for the protection of air. MAFF (now part of Defra) stated that it is an offence to burn material in the open and on trade premises if the burning produces dark smoke (the Clean Air Act, 1993) and smoke as a statutory nuisance (Part III of the Environment Protection Act 1990). MAFF (MAFF, 1992) 3 provided the following guidance in order to prevent dark smoke, if burning is the only practicable method of waste disposal: - Do not burn plastics, rubber, tyres or other materials known to produce dark smoke. Avoid burning if it will cause a nuisance to nearby residential areas. Materials should be dry with low moisture content. Do not burn green vegetation. Keep fires small and continually combustible material, minimising the depth of the combustion area. Do not pile material high on fires. Minimise the quantity of incombustible material, which is added to the fire. Wherever possible, keep incombustible materials separate from the materials to be burnt. For better combustion, agitate the base of the fire to improve the air supply. If the fire produces dark smoke, don t add any more material that burns slowly. 3 Revised and republished in 1998 as The Air Code ( 19

27 MAFF also suggested the following precautions to minimise fire hazards: - Build fires well clear of houses, other buildings, overhead cables or flammable materials such as stacks of straw, trees, hedgerows, ripe cereals or stubble. Fires must not be lit near a public road. If the fire or smoke from it causes injury, interruption or dangers to road users, this may be an offence under the Highways Act Do not burn materials in the open when it is very windy or in a period of drought. Only light fires downwind of public highways, houses, other buildings or inflammable materials, so that wind will carry any sparks and smoke away from them. Tell the Local Authority Fire Service before starting any substantial burning operations. Have a fire extinguisher and a supply of water from a mains supply or dowser on hand in case of an emergency. Burning should be carried out under direct and continuous supervision of the occupier of the premises or a person authorised to act on their behalf. The only exception to this should be if there is an emergency elsewhere on the farm requiring immediate attention. Put out all fires before you leave them Business, Trade and Industry The law of nuisance applies to business sites. In addition, industrial and trade premises are subject to regulation under the Clean Air Act and Waste Management Regulations. Several controls/guidelines for bonfire use on industrial sites have been summarised below 4 : - Dark Smoke: it is an offence under the Clean Air Act (1993) to generate dark smoke from a bonfire on an industrial site. Other Smoke: it may be acceptable to generate small amounts of other smoke from a bonfire. The limitations applying to a bonfire are: - It should not cause a problem or nuisance to adjoining properties by smoke, ash or smell which would interfere with the enjoyment of their property. The bonfire must be constantly supervised. 4 Runnymede Borough Council,

28 The bonfire should be small in size (e.g. less than 3m in diameter). This ensures adequate combustion and enables the fire to be extinguished promptly. A supply of water or a method of extinguishing the fire should be close at hand. The fire should be extinguished at the end of each day and shall not be left smoldering. Due regard to weather conditions and prevailing wind direction must be taken. Only waste produced on site can be burnt if this is the chosen method of disposal. It is not permissible to import wood, etc. from other sites and burn it. Waste timber produced on site which may have been treated for dry and wet rot must not be burnt, due to the possible release of pollutants such as dioxins. The smoke from a bonfire shall not obscure a transport route road, or railway. 3.8 Legislative Summary In summary, legislative controls exist under Waste Management, Highways, Clean Air and Environmental legislation. In general, there is a primary responsibility on the owner/occupier of the land used for the bonfire. In addition, there are also responsibilities in regard to those depositing the material to be burnt and lighting the fire. Enforcement of legal provisions varies depending on the actual location and the nature of the offence. 3.9 International Examples of Regulations used to Control Smoke Nuisance By way of comparison various examples of regulatory control of bonfire smoke nuisance have been identified. The driving force of such regulation is not necessarily to control smoke nuisance but to prevent other environmental harm for example forest or bush fires Australia Bonfires in Australia are regulated under the Rural Fires Act Within New South Wales, permits are issued by the Fire Brigade and the Rural Fire Service to light fires. In addition to this, applications must be supported with: a bush fire hazard reduction certificate; and 21