3. Policy proposals for amending and consolidating these regulations
3.1 Overview of our proposals?
1. The Drinking Water Directive requires us, as with the rest of the UK and other Member States, to make all the necessary legal arrangements to comply with the Directive. Our current legislation currently complies with the Directive, however, there are areas within our current legislation where we think closer alignment to the Directive is necessary.
2. The following sections explain how we intend to amend our current legislation and what this will mean in practice, however, the main driving factors behind the current review are - consolidation of the current regulations to make them easier to understand, to introduce risk assessment and the future transposition of the Euratom Directive into the Regulations by way of amendments.
3.2 Impact on different user groups
1. It is considered that it is not necessary to conduct a business and regulatory impact assessment ( BRIA) as the regulatory amendment proposed should not incur cost or savings for business, regulators or consumers. It is intended only to clarify existing legislation. In the same way it is considered that an equality impact assessment ( EQIA) is not required. The amendments to these regulations will not impact on Scottish Water customers.
3.3 The regulatory approach - commentary on draft Regulations:
1. This section is intended to be read alongside the text of the draft Public Water Supplies (Water Quality)(Scotland) Regulations 2014, which are set out in Annex D.
2. Below you will find our commentary for each amendment, setting out how and why a particular approach has been taken and what it means.
3. Subject to the changes set out below, the new regulations largely consolidate existing legislation, with some drafting changes to existing law.
The substantive changes that you need to consider are:-
1. Under the Cryptosporidium Directions 2003 Scottish Water is currently required to undertake risk assessments for Cryptosporidium at every water treatment works. In line with World Health Organisation best practice and current requirements placed on Scottish Water we wish the requirements for risk assessments/water safety plans at each water treatment works to be placed on the face of the Regulations and extended to cover all properties, organisms or substances that pose a potential risk to human health which will include Cryptosporidium. Doing this will mean there is no longer a requirement for the Cryptosporidium Directions, therefore these will be revoked, although certain requirements of these may be retained and communicated using other means such as an information letter.
2. The new provision would require the following:
- risk assessments for each existing water treatment work supply system as a whole (i.e. from the catchment source through treatment and distribution to the consumer's tap);
- risk assessments for new treatment works before going into supply;
- Scottish Water to keep risk assessments under continuous review to ensure appropriate risk management.
- Scottish Water to provide Scottish Ministers with a copy of the initial risk assessment.
- DWQRS to have the powers to serve a notice on Scottish Water requiring risk assessments be reviewed and/or revised or operational measures to be put in place to mitigate identified residual risks.
3. Please see Part 8 of the draft Public Water Supplies (Water Quality) (Scotland) Regulations 2014.
Do you agree with our approach to incorporating a risk approach provision into these regulations?
4. Regulation 31 of the draft Public Water Supplies (Water Quality) (Scotland) Regulations puts an onus on Scottish Water to provide a complete initial risk assessment to the Scottish Ministers.
Do you agree that Scottish Water should provide Scottish Ministers with a copy of the initial risk assessment once complete?
Transfer of Public Building Powers to Scottish Water
5. Our policy preference would be for there to be a change in section 76FA of the Water Scotland Act 1980, to require Scottish Water to investigate and report failures in public buildings served by a public water supply. Currently this duty rests with Local Authorities, however, we believe that Scottish Water are best placed to do this and have the necessary expertise. We are of the view that having Scottish Water conduct the investigation would be the sensible way to protect public health.
6. The responsibility for serving notices and remedial action should still lie with the Local Authorities at this time. Therefore we would prefer there to be no substantive changes to Sections 76FB and 76FC of the Water Scotland Act 1980. The responsibility for investigating failures in a public building supplied by a private water supply should remain with Local Authorities.
Do you agree with our proposed changes to the 1980 Act which require Scottish Water to carry out investigations in public buildings?
7. Regulations 35(1)(a) and (b) and 44(1) create new offences.
8. Regulation 35(1)(a) makes it an offence for Scottish Water to contravene its duty under regulation 29(1) to treat and disinfect water before it is supplied. Regulation 35(1)(b) makes it an offence for Scottish Water to contravene a notice under regulation 31(3)(d) which prohibits it from supplying water from certain works. For these offences, regulation 35(2) provides that it is a defence to show that it took all reasonable steps and exercised all due diligence to avoid the offence. These offences are punishable on summary conviction by a fine not exceeding the statutory maximum (currently £10,000), or on conviction on indictment by an unlimited fine.
9. Regulation 44(1) makes it an offence to intentionally obstruct a person who is exercising powers conferred on Scottish water by regulation 40(1) (in an emergency only) or by 41(1) a person who commits this offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale (currently £1,000).
We think it is essential that a contravention of these provisions should be punishable in this way (in addition to the other existing offences).
10. Regulation 36 provides broadly that where an offence under Regulation 35 has been committed by an organisation and the offence was attributable to any neglect on the part of certain individuals acting for that organisation, that individual may be punished as well.
Do you agree with the creation of these new offences?
11. A number of other changes have been made. These include:
a) a new requirement that each water supply zone must have no
significant variation in water quality (Regulation 3(3))
b) Regulation 17(3) allows Scottish Water to recover costs incurred during the investigation into a failure in a public building
c) Scottish Water's duties to notify and report failures are adjusted to require notification to DWQRS too (Regulations 18 and 19)
d) transfer to DWQRS of the power to require Scottish Water to apply to the Scottish Ministers for an authorised departure (Regulation 22)
e) additional duty on Scottish Water to serve a copy of any application for an authorised departure on Citizens Advice Scotland (Regulation 24(4))
f) additional duty on Scottish Water to notify Citizens Advice Scotland of its intention to revoke or modify any such authorisation (Regulation 28(2))
g) a requirement for Scottish Water to modify or replace, on request, its part of a lead pipe where the concentration of lead exceeds 10ug/l (Regulation 32(4))
h) new power for Scottish Ministers to require a person applying for an approval to pay an administrative charge determined by Scottish Ministers (Regulation 33(12))
i) Powers of entry etc for Scottish Water (Part 12)
j) change to prescribed concentration or value for odour and taste parameters in Table B
k) the relocation of hydrogen ion from Table B to Table C
l) The current requirement for Scottish Water to disclose information on request has not been retained because any such information may be requested under the Freedom of Information Scotland Act 2002 or the Environment Information Scotland Act 2004.
Do you have any concerns with these minor amendments?
Business Regulatory Impact Assessment( BRIA)
12. It is our belief that a BRIA is not required for the introduction of these regulations, this is due to the fact that these regulations mainly impact on Scottish Water, and they are predominately a consolidation of current legislation and any additional duties are in the most part already being done by Scottish Water.
Do you agree that a BRIA is not needed?
3.4 Policy proposals for subsequent amendments to the consolidated regulations
1. Council Directive 2013/51/Euratom lays down the requirements for the protection of the health of the general public with regard to radioactive substances in water intended for human consumption. The substances covered are Tritium, Indicative Dose and Radon. As Tritium and Indicative Dose have already been transposed, our preference is to include Radon in this set of amending Regulations. This Directive does not have to be transposed until 28 November 2015, however, we intend to include it in a subsequent set of amending regulations with a transpositional date of 31 October 2015.
2. Annex 1 of the Council Directive 2013/51/Euratom provides the parametric value for Radon, this annex states "Member States may set a level for radon which is judged inappropriate to be exceeded and below which optimisation of protection should be continued, without compromising water supply on a national or regional scale. The level set by a Member State may be higher than 100 Bq/l but lower than 1 000 Bq/l. In order to simplify national legislation, Member States may choose to adjust the parametric value to this level."
3. We have put in place a research project looking specifically at the position regarding radon in drinking water, the outcome from this research and any further surveys will be used to inform the maximum level of radon to be set for Scotland.
It is our intention to transpose the Euratom Directive (in so far as it applies to public water supplies in Scotland) by means of subsequent amendments to the Public Water Supplies (Water Quality) (Scotland) Regulations 2014. Do you have any concerns about doing this?
Do you have any thoughts on what the standard for Euratom should be set at?
Your views are sought on what we are proposing in this consultation.