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SILENCE OF THE LAMBS: The Foot and Mouth Crisis and its Environmental and Legal Implications

The following paper by Barrister Stephen Tromans examines the laws relevant to the FMD crisis. The paper has implications for MAFF/DEFRA who may be considered to be in breach of both British and European law.

Many people have felt deep revulsion at the policy of killing healthy animals as a form of "firebreak", when the alternative of vaccination was available. Many have also felt deep disquiet at the way in which the cull has been undertaken, and the task of disposing of the results of the cull have been carried out. There has been little attention paid in the media to the legal position underlying these operations, a deficiency which this article seeks to redress to some degree.

This relatively little known piece of legislation was enacted to consolidate the Diseases of Animals Acts of 1935, 1950 and 1975, the Ponies Act 1969 and the Rabies Act 1974. Section 1 of the Act contains a general Ministerial (or now in Wales, the National Assembly) order-making power, allowing such orders as are thought fit "generally for the better execution of this Act, or for the purpose of in any manner preventing the spreading of disease".

The power has been used extensively over the years to make Orders as to matters such as the transport of animals, and also in relation to outbreaks of disease, for example the Cattle Plague Order of 1928 (SR and O 1928/206) and the Swine Fever Order of 1963 (SI 1963/286). These Orders include - intriguingly - the Foot-and-Mouth Disease (Infected Areas) (Vaccination) Order 1972 (SI 1972/1509).

The key Order for the purposes of the present outbreak has been the Foot-and-Mouth Disease Order 1983 (SI1983/1950) which contains extensive powers and requirements relating to the isolation of affected animals, restriction and licensing of movements, control of slaughterhouses and markets, the closure of footpaths, the prohibition of certain sporting events, and other controls which have been so familiar over the past weeks.

Part II of the Act deals with disease. Any person having in his possession or under his charge an animal affected with disease must so far as practicable keep the animal separate from unaffected animals, and must with all practicable speed give notice of the fact to a police constable (section15).

Section 16 empowers Ministers to cause to be treated with serum or vaccine, or both, any animal which has been in contact with a diseased animal, or which appears to have been in any way exposed to infection, or is in an infected area. These powers extend to the taking of any action requisite for allowing the treatment to be administered, and include a general power of entry onto premises.

It is therefore transparently clear that a vaccination programme would not have required the consent of farmers, any more than would a cull.

Section 17 provides for the declaration of places and areas as infected, which in turn results in the detailed provisions of Part III of the 1983 Order referred to above being applied to such areas. The declaration, amendment and revocation of infected area orders resulted in a frenzy of order-making, with some 143 declaration orders, 35 amendment orders and five revocation orders as at the start of May.

Fortunately, the Government did not attempt a general cull of wild animals, such as deer or wild boar, which might carry the disease, but had it been felt necessary, section 21 allows the Minister to do so.

The criteria are that disease exists among the wild members of the species which has been or is being transmitted to other species, and that the destruction is necessary to eliminate or substantially reduce the incidence of disease. The only procedural requirement is consultation with English Nature, Scottish Natural Heritage, or the Countryside Council for Wales before making the order. The view of English Nature was that there is little evidence as to the significance of wildlife as carriers of the disease, but the fact that it has not become endemic in wildlife as a result of previous outbreaks in the UK and other European countries indicates that wildlife is not a good carrier. A greater concern was that the movement of people, dogs and vehicles involved in any wildlife cull would present a greater risk of the spread in infection.

Section 23 allows orders to be made for prohibiting or regulating the movement of persons or animals into, within or out of, any infected place or area and for prescribing or regulating the destruction, burial, disposal or treatment of carcasses or other things within or removed from an infected place or area.

Section 25 provides for orders regulating the movement or exposure of diseased or suspected diseased animals. Under orders made under section 28, animals dealt with in breach of movement orders may be seized, detained or disposed of.

Section 31 of the Animal Health Act introduces Schedule 3, dealing with the slaughter of animals in relation to various diseases, which include foot-and-mouth. This is where things get particularly interesting.

Paragraph 3 of Schedule 3 provides specifically for foot and mouth disease, and sub-paragraph 3(1) reads as follows:

"The Minister may, if he thinks fit, in any case cause to be slaughtered (a) any animals affected with foot-and-mouth disease, or suspected of being so affected; and
(b) any animals which are or have been in the same field, shed, or other place, or in the same herd or flock, or otherwise in contact with animals affected with foot and mouth disease, or which appear to the Minister to have been in any way exposed to the infection of foot-and-mouth disease."

This is a closely confined power, carefully drafted. It does not create any power to slaughter healthy animals, three kilometres away, on a "firebreak" basis, or because they happen to be on a holding contiguous to one where an outbreak has been confirmed. It is based on the likelihood of the animal already having been exposed, not on the possibility of its being exposed in the future.

It is instructive to compare the wording in paragraph 1 of the same Schedule which deals with cattle plague. This provides an express power (paragraph 3(3)(b)) for the slaughter of any animals being in parts of an area affected with cattle plague, subject to such regulations as the Treasury by statutory instrument may think fit to make.

This raises the fundamental point as to the extent to which the cull, and the consequent payment of compensation, was in fact ultra vires. The MAFF website appears to suggest that because of the highly infectious nature of the disease, it is believed that susceptible animals on farms neighbouring a farm where infection has been confirmed will have been exposed to the infection.

This would appear to be a highly dubious basis for the measures adopted. It now appears that a substantial proportion of animals killed were not in fact infected. Now, the science on which the policies were founded has been called into question. Quite apart from the human anguish and animal suffering caused, farmers have been deprived of their possessions, sometimes against their will, on a huge scale.

Whilst it may be argued that this was in the public interest, Article 1 of the First Protocol to the European Convention on Human Rights makes it clear that to be lawful, deprivation must also be subject to the conditions provided for by law, in this case the limited powers under Schedule 3.

As pointed out above, vaccination was an alternative provided for by the legislation, indeed was an option commended by the Northumberland Report into the 1967 outbreak as a contingency measure to be kept in readiness for future outbreaks.

By section 34(2) of the Animal Health Act, where an animal has been slaughtered under the Act at the Minister's direction, the carcass belongs to the Minister, and shall be buried, or sold, or otherwise disposed of by him, or as he directs, as the condition of the animal or carcass and other circumstances may require or admit.

Delays in making use of military assistance have meant that in many cases carcasses were left where they fell for significant periods before their disposal could be arranged, thereby causing much distress and potential risk to human health. An accumulation of decaying carcasses would seem to be an example par excellence of a statutory nuisance under section 79 of the Environmental Protection Act 1990, in being both prejudicial to health and a source of nuisance by smell (section 79(1)(e)).

As such it could be the subject of an abatement notice by the local authority, or a summary complaint by any person aggrieved under section 82.

The notice would be served on the "person responsible for the nuisance" (section80(2)(a)), which in the light of section 34(2) of the Animal Health Act it is suggested would be the Minister who owns the carcasses and has statutory responsibility for their disposal.

The defence of best practicable means having been used to prevent or counteract the effect of the nuisance (for example, the use of disinfectant) under section 80(7) would apply only if the carcasses were on "industrial, trade or business premises" (section 80(8)(a)).

The controls under the Animal Health Act and Foot-and-Mouth Disease Order referred to above mean that the movement of carcasses from infected areas is strictly controlled. The Minister has issued a series of general licences for the movement of carcasses. For example, on April 12, 2001, the Minister issued a general licence for the movement of carcasses to specified locations on specified conditions as to matters such as disinfection of vehicles and of the clothing and footwear of those involved in the operation.

The nature and extent of legal control exercisable over the transport and disposal of the carcasses is dependent on their legal status as waste. The carcasses are quite clearly discarded, and are required to be disposed of, and as such might prima facie be thought to be waste. However, animal carcasses are specifically excluded from the scope of the EC Waste Framework Directive 75/442/EEC as amended by 91/156/EEC (see Article 2(1)(b)(iii)).

Waste from agricultural premises is outside the definition of "controlled waste" under Part II of the Environmental Protection Act 1990. The status of carcasses in domestic legislation therefore depends on whether they derive from agricultural premises. However, the disposal of carcasses is caught and controlled (in often repulsive detail) by the Animal By-Products Order 1999 (SI 1999/646) which implements the Animal Waste Directive 90/667/EEC. Keeping or treating wastes (though not disposing of them) in accordance with the Animal By-Products Order 1992, is exempted from waste management licensing by Schedule 3, para 23 of the Waste Management Licensing Regulations 1994 (SI 1994/1056).

It has been reported that residents living near to mass burial sites for carcasses have been horrified to see blood and other fluids escaping from lorries carrying carcasses onto local roads. Normally persons consigning or transporting controlled waste are required to comply with the duty of care under section 34 of the Environmental Protection Act 1990, which includes keeping the waste under their control and preventing its escape.

It would be expected that similar incidents involving vehicles carrying waste to a normal landfill site would result in prosecution by the Environment Agency.

Under the Controlled Waste Regulations 1992 (SI 1992/588) regulation 7(3) animal by-products are not controlled waste for the purpose of the duty of care, provided they are collected and transported in accordance with the requirements of Schedule 2 to the Animal By-Products Order 1992 (SI1992/3303) (somewhat anomalously, since the 1992 Order has now been repealed and replaced by the 1999 Order). Among the requirements of Schedule 2 is a requirement for record keeping and a requirement that vehicles and any containers used for transporting animal remains must not leak and must be adequately covered. In the current 1999 Order, Article 6 requires that any person collecting or transporting animal by-products shall use adequately covered leak-proof containers and vehicles. The transport of leaking consignments of carcasses is thus an offence under the Animal Health Act (under which the 1999 Order was made). If the carcasses derived from non-agricultural premises (and thus were controlled waste) it may also be an offence under the section 34 duty of care.

The BSE crisis saw a policy move away from the burial of animal by-products, in favour of rendering at approved plants or incineration. This was reflected in amendments made to the 1992 Order by SI 1997/2894, and in the current 1999 Order. Article 5 of the 1999 Order provides that a person who has in their possession or under their control any animal by-product shall without undue delay consign it for disposal, or dispose of it by a specified and limited range of methods. These include rendering or partial rendering in approved premises, and incineration.

Burning other than in an incinerator or burying is only allowed under the Order if the waste is in a place where access is difficult, or the quantity of the waste and the distance to approved disposal premises do not justify transporting it. Burial and open pyres are therefore only permissible on pragmatic grounds. Under Article 5(2) of the 1999 Order, where there is a health risk from transporting infected carcasses, or where there is a lack of capacity at rendering plant or incinerators, the Minister may serve a notice requiring disposal without undue delay by burning or by burial, as may be specified in the notice. Such notices have been the means of authorising open burning and burial.

Control under the Animal By-Products regime is thus by MAFF rather than the Environment Agency. The Agency's role has therefore been essentially a supporting and advisory one as to the options for disposal and their environmental implications. A key concern of the Agency has been the potential for groundwater pollution from carcass burial, and to a lesser extent from the disposal of ash after burning carcasses. Potential pollutants are ammonia, chlorides, phosphates, degradable organic compounds such as fatty acids, and bacteria. One incident which resulted in publicity was the exhumation of buried carcasses at Tow Law in the Borders, where they had been erroneously buried near a source of supply for drinking water.

To give an idea of the scale of the potential problem, the Agency's website states that in Cumbria (where the largest number of confirmed cases was concentrated) there are around 140 abstractions of groundwater for public supply or for food or drink processing, plus several thousand private supplies dependent on groundwater.

The Agency and MAFF agreed joint working arrangements and principles, creating the following hierarchy of preferences for disposal:
- rendering at authorised plant
- incineration in authorised incinerators
- landfilling in appropriately engineered and authorised landfill sites
- burning on the farm
- burial on the farm

These options are complicated by the position on disposal of cattle born before 1 August 1996 (the date of introduction of the Comprehensive Feed Ban in relation to BSE).

Carcasses of cattle born before that date may not be buried, leaving the options of rendering, incineration or burning on pyres (subject to a maximum limit of 1,000 carcasses for any pyre including cattle born before that date).

The Spongiform Encephalopathy Advisory Committee (SEAC) advised that likely BSE infectivity in cattle born after the relevant date was about 400 times less than for older cattle, leading to the Agency's decision to allow burial of such animals on logistical grounds, depending on local water conditions and site-specific risk assessment. This was contrary to the Agency's original position that it would be advisable for all cattle to be rendered or burnt and not buried.

MAFF and the Environment Agency agreed a Protocol for the use of licensed landfills for the disposal of carcasses during the outbreak. Under these arrangements, only sites identified on an approved list based on the Agency's criteria for site approval may be used.

These criteria deal with matters such as containment, leachate management, the relationship to previously emplaced waste, and gas management.

MAFF authorises the disposal under Article 5(2) of the Animal By-Products Order 1999, as explained above, for each and every landfill site used. The Environment Agency modifies waste management licences for such sites under section 37 of the Environmental Protection Act 1990 to allow burial under the terms of the Article 5(2) notice. Disposal must be in accordance with a Best Practice document agreed between the Agency, MAFF and the Environmental Services Association. This covers matters such as waste acceptance (carcasses not to exceed 5% by weight of weekly inputs to the site), waste handling, records, vermin control, odour control, protective clothing, and control of disinfectant run-off, as well as lorry disinfection and management.

It is the horrific images of mass pyres which caught the imagination of the public, and the smell and smoke of such pyres has made life for many country dwellers a misery.

The Food Standards Agency advised that it was unlikely that dioxins and other pollutants resulting from pyres would cause anything other than a small risk to health, but is measuring levels of dioxins in agricultural produce and grass in the proximity of pyres.

The FSA would advise against reintroducing cattle onto land found to be "heavily contaminated" with dioxins. In addition the Department of Health has carried out modelling as to the emission of particulates and sulphur dioxide from pyres of varying sizes. It has recommended minimum distances for pyres from local communities (2-3 kilometres depending on the size of the pyre) and advises the public to avoid proximity to the pyres. Smoke and other airborne emissions from pyres could in principle constitute a statutory nuisance, and as such prompt an abatement notice from any local authority brave enough, or, summary proceedings by a local resident.

Detailed guidance on ash disposal from pyres has been produced by the Environment Agency, and is summarised in the Department of Health document on Measures to Minimise Risk to Public Health (April 24, 2000). Ash from pyres will normally be left on site or back-covered with soil, subject to risk assessment by the Environment Agency.

Ash may be disposed of to landfill or burial site subject to the appropriate licensing procedures referred to above. In the case of ash from cattle born before 1 August 1996, where this is removed from site it is required to be incinerated. It seems questionable quite how such ash can be justified as being left in situ, where the advice is that if moved it would have to be incinerated.

The keeping and disposal of carcasses in the quantities involved in the outbreak clearly presents the potential for pollution of ground and surface water, whether by the run off of disinfectant, or by leaching of decomposition products.

The entry of poisonous, noxious or polluting matter into controlled waters from these sources could constitute an offence under the provisions of Part III of the Water Resources Act 1991.The requirements of the Groundwater Regulations 1998 (SI 1998/2746) are relevant here. The disposal or tipping of substances falling within List II to these Regulations requires specific authorisation and prior investigation under regulation 5 and the ongoing surveillance of groundwater.

List II substances include (Schedule, para 3(c)) substances which have a deleterious effect on the taste or odour of groundwater, or which may form such substances rendering groundwater unfit for human consumption. On this basis the mass burial of carcasses may well be subject to the Regulations.

Is there a risk that sites where carcasses have been buried or ash from pyres left may be regarded as contaminated land under Part IIA of the Environmental Protection Act 1990?

The substances which may cause land to be regarded as contaminated include natural substances (section 78A(9)).

The issue is therefore whether the presence of the carcasses or ash are creating a significant risk of significant harm, or are polluting, or are likely to pollute, controlled waters. A remediation notice may not in general be served on land in respect of which a waste management licence is in force (section 78YB(2). However this would not preclude service of a remediation notice on sites where the disposal had taken place pursuant to a notice under the Animal By-Products Order. The notice would in the first instance be served on the person who caused or knowingly permitted the contaminating material to be in, on or under the land (section 78F(2)).

One would hope that this would be the Minister, as the owner of the culled animals and the person having statutory responsibility for their disposal under the Animal Health Act. It would surely be a monstrous injustice if the owner of the land were to be regarded as responsible to any degree.

It is questionable how much notice was taken of the sensible advice contained in the Northumberland Report on the 1967 outbreak of foot-and-mouth.

Government memories can be short. The proposed new Department of Rural Affairs would do well however to consider some basic principles of crisis management and preparedness should there be any repetition of these events.

The outbreak comes at a time of possible radical reappraisal of the role of agriculture.

What does the nation require from its farmers, and what is it prepared to pay for their products and services. Those services include the care and nurture of the rural environment in order, for example, to ensure sites of nature conservation importance are in favourable condition.

The crisis may, to some extent, allow a new start to be made in terms of redressing the overgrazing which has caused damage to upland sites. One can only hope that some good will come out of what has been a grim Spring 2001.

Stephen Tromans
Eldon Chambers

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