How will new position statements impact on development of cemeteries?
On 14 March, the Environment Agency (EA) issued a new tranche of position statements on groundwater protection. That relating to cemeteries is of particular importance in view of the current shortage of burial space and the need for future development, either by the extension of existing cemeteries or the creation of new ones, including grave plot reuse and ‘lift and deepen’ methods. This post outlines the underlying provisions, discusses their application, and examines some of the apparent inconsistencies.
Environment Agency Position Statements
The new position statements were introduced on 14 March 2017, and some of the more pertinent extracts are summarized below.
- Environment Agency’s approach to groundwater protection: Part L, Cemetery developments: “Burials are covered by the requirements of EPR [the Environmental Permitting Regime] as they can discharge hazardous substances and non-hazardous pollutants to groundwater. For individual burials that are spaced out over time, the risks to groundwater are likely to be low and the de minimis exclusion in EPR applies“.
“Large numbers of burials in a short time, or the cumulative effects of many individual burials, may cause or have the potential to cause groundwater pollution. In general, the shorter the time over which burials occur and the higher the number of burials, the greater the risk of groundwater pollution. In these cases the Environment Agency will, where appropriate, use its powers under EPR to control or prohibit the burials“.
Four basic scenarios are identified: L1 – Locating cemeteries close to a water supply used for human consumption; L2 – Mass casualty emergencies; L3 – Cemeteries: protecting groundwater in highly sensitive locations; and L4 – Home burials.
- Cemeteries and burials: prevent groundwater pollution: “Burials can result in the discharge of hazardous substances and non-hazardous pollutants to groundwater. They are therefore covered by the requirements of the Groundwater Daughter Directive 2006/118/EC as implemented by the Environmental Permitting Regulations”.
This position statement includes a summary and links to related information for: disposal of ashes; home burials; “green burial sites”; existing cemeteries; and new cemeteries and extensions, each of which is subject to differing degrees of scrutiny by the EA. See below.
- Cemeteries and burials: groundwater risk assessments: “Human burials are not currently controlled through the permitting system under the Environmental Permitting (England and Wales) Regulations 2010 [Note: these have been repealed and updated, infra]. However, you should use the principles for a groundwater risk assessment to ensure you do not cause pollution”.
- Groundwater activity exclusions from environmental permits De minimis and other extremely low-risk discharges are not classed as groundwater activities. These exclusions do not require an environmental permit or exemption for them.
Other related provisions
- Environmental Permitting (England and Wales) Regulations 2016 (SI 2016/1154) (“the 2016 Regulations”) consolidate and replace the Environmental Permitting (England and Wales) Regulations 2010 (S.I. 2010/675) (“the 2010 Regulations”), which have been amended 15 times to date. The 2016 Regulations set out an environmental permitting and compliance regime that applies to various activities and industries.
- Waste Framework Directive 2008/98/EC which defines waste and basic waste management principles, does not apply to human corpses, and burials are not controlled by waste legislation in England. The Environment Agency document on its approach to groundwater protection, supra, states that on the basis of a Communication from the European Commission [unreferenced], for ethical reasons, human corpses cannot be defined as waste: “the Environment Agency can therefore only control groundwater pollution from burials as a consultee on planning applications, or through environmental permitting and water resources legislation where risks of pollution are greatest.” [See Comment below].
Whilst few readers will wish to acquaint themselves with the process of corporeal decomposition following burial, a basic understanding of the issues involved is of assistance in understanding the Environment Agency’s approach to groundwater protection. An instructive overview was produced by SEPA, the Scottish Environmental Protection Agency in 2015: Guidance on Assessing the Impacts of Cemeteries on Groundwater, LUPS GU32 and similar data are included in the EA’s Cemeteries and burials: groundwater risk assessments.
The degradation process rate is mainly dependent on microbial decay, which is itself influenced by soil conditions and burial practice, e.g. depth of burial and coffin construction. The “half-life” of a resulting pollutant is one year, i.e.
“A buried human body normally decays to skeleton within 10 to 20 years. Pollutants from human remains come from dissolved and gaseous organic compounds and dissolved nitrogenous forms, especially ammoniacal nitrogen. Estimates suggest that more than half the pollutant total leaches within the first year and halves year-on-year after that. Less than 0.1% of the original pollutant total may remain after 10 years”.
The EA position statement does not address the possible presence of microbiological pathogens &c, which is perhaps a greater concern of those involved in the practicalities of exhumation or archeological investigation than the protection of groundwater quality. However, the Historic England document Guidance for Best Practice for Treatment of Human Remains Excavated From Christian Burial Grounds in England which was produced in collaboration with the Archbishops” Council states:
“In English conditions, preserved pathogens are extremely unlikely to survive in viable form for as long as a century. There are minor concerns about anthrax and smallpox, but the risk has almost certainly been overestimated: attempts to culture smallpox from preserved scabs from crypts have failed, and while anthrax spores could possibly survive, they have low infectivity. Tetanus and leptospirosis, which are risks associated with all excavation of soil, are of greater real concern in almost all situations – and risks we accept when gardening. Fungal spores may be present in high concentrations in crypts”.
The Environmental Permitting (England and Wales) Regulations 2010 (EPR) require permitting of activities that may lead to the input into groundwater of hazardous substances or non-hazardous pollutants. Groundwater resources are primarily managed by abstraction licensing. The primary aim of all of the position statements is the prevention of pollution of groundwater and protection of it as a resource. Groundwater protection is long term, so these principles and position statements aim to protect and enhance this valuable resource for future generations.
Unlike many “one-off” licensing schemes which involve little more than the purchase of a permit at nominal cost, the Environment Agency’s Environmental Permitting Charging Scheme is onerous, both in relation to the statutory direct charges covering application, subsistence (i.e. on-going monitoring by the EA), changes and surrender, and to the indirect charges associated with required monitoring of pollutant levels &c and production of the required reports. It is therefore essential to determine how a particular cemetery- or churchyard development would be treated under the EPR regime. The level of scrutiny applied is dependent on the perceived risk, and that relating to particular situations is summarized below:
- Closed cemeteries: From the “half-life” considerations above, it would appear that cemeteries which have been closed for more than 10 to 20 years are unlikely to have a significant adverse effect on groundwater quality;
- Home Burials: “The Environment Agency would not expect to be consulted on home burials or sites used for single burials, but would expect that the site should conform to the requirements set out in the cemeteries guidance“.
- Green burial sites: “These burial sites usually associated with more rapid decay rates compared with ‘conventional cemeteries’ on account of: relatively shallow depth of burial; biodegradable nature of the coffins or shrouds; and lack of embalming fluids. Site managers and owners must follow minimum groundwater protection requirements“.
- Single human burials and ash discharge: “The following types of ash discharge and single human…burial fall within the de minimis provisions:
– single human burial inclusing any associated personal artefacts, such as a holy book, as long as you prevent groundwater pollution;
– scattering of ashes from individual human…cremations, burial of ashes from individual human…cremations, as long as the burial is not directly into groundwater.
- existing cemeteries: “These must be managed to limit their environmental impact, e.g. use of methods such as artificial drainage to reduce the risk and meet the minimum requirements where possible. Any extension to an existing site must comply with the requirements for new cemeteries and extensions, below. All existing sites should have an appropriate risk assessment“.
- new cemeteries and extensions: “Any new cemetery or extension to an existing site, including grave plot reuse and ‘lift and deepen’ methods, must:
– comply with minimum groundwater protection requirements;
– pose no unacceptable risk to groundwater used for drinking water and food production purposes
– as a minimum a tier 1 risk assessment must be undertaken tto evaluate the potential harm to groundwater from pollution.
Local councils control new cemetery and extension applications through planning laws, and the Environment Agency is a statutory consultee for potential groundwater pollution. The Town and Country Planning Act and Regulations (various dates) have provisions allowing the control of development and land use, including cemeteries. Planning conditions may be set to protect groundwater.
The Environment Agency considers sites with the potential for 100 burials a year or more to be high risk. These sites will need detailed evidence to show both:
– sufficient depth to the water table or that natural formations offer protection
– proposed engineering and management methods to prevent unacceptable groundwater pollution
Regular monitoring will be required to ensure the risk of groundwater pollution stays acceptable. How often, and what checks, depends on:
– cemetery size and rates of use;
– results of the risk assessment;
– hydrogeological characteristics;
– ongoing results of the monitoring.
The Environment Agency expects operators to limit their cemetery’s environmental impact, such as phasing burials to reduce the concentration of substances and organisms”.
Whilst the protection of groundwater is an essential requirement at all burial sites, it is likely to be most onerous in the case of the new cemeteries and the extension of existing ones. Importantly, the use of “lift and deepen” methods is regarded as cemetery extension. It is evident from the recent posts that the development of cemeteries is a lengthy process for both municipal and private cemeteries, for which ground water quality is but one of the environmental issues to be taken into consideration. As in the industrial context, such “licence to operate” issues are seldom “show stoppers”, but nevertheless, they need careful consideration at an early stage in the project.
For completeness, it is pertinent to consider two related issues.
Discharges into cemeteries
In some churches, it is sometimes necessary to discharge treated effluent from a into the churchyard. The paper “Waste Water from Churches” was commissioned by Gloucester DAC in 2001 to assist PCCs and their architects where consideration has been given to installing a WC or kitchen in a church, and where suitable mains drainage does not exist.”.
EPR permits are required for such treatment installations, despite the relatively low volumes of effluent involved, as discussed here.
The Environment Agency’s approach to the burial of human corpses is based upon a non-mandatory Commission Communication which precludes their designation as “waste” under the under the Waste Framework Directive 2008/98/EC, supra; in these circumstances the EA exercises indirect control through its groundwater protection duties.
In relation to cremation, however, this is subject to direct control under provisions within the Environmental Permitting Regime as it applies to waste management processes. Human corpses are not referred to as “waste” within the 2016 Regulations or the Statutory Guidance for Crematoria, Process Guidance Note 5/2 (12), and the resultant ashes are referred to as “material left in the cremator after a cremation”, The Cremation (England and Wales) (Amendment) Regulations 2016 SI 883.
However, the cremation operation is classified as a “Part B Process” (i.e. one subject to Local Authority control) within Schedule 1, Part 2 to the Environmental Permitting (England and Wales) Regulations 2016 (SI 2016/1154) under Section 5.1 Waste.
At L&RUK we do not give legal advice, or purport to do so. This post summarizes the issues arising from the recent Environment Agency position statements on groundwater protection. For specific queries on the application of the legislation, professional legal advice and the opinion of the competent authorities should be sought.