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The worry of slurry

Anyone involved in farming could talk at length about the challenges they face on a daily basis. For each day of early rising and enjoying sunlight over the fields, there are plenty filled with torrential rain, struggles with livestock, and coming home late and covered in filth. It is the filth which creates its own level of difficulties. The practical reality of working farms is that where there is livestock, there is slurry, and where there is slurry… there are challenges of their own kind.

The environment has become an increasingly prominent concern in the Government’s legislative strategy, and that extends to pollution-related incidents. On a national scale, new plans to increase the scale of financial penalties (both civil and criminal) which can be given to water companies for polluting have been announced. However, on a more local scale, we are increasingly instructed by farmers in respect of allegations of slurry-related pollution into streams and tributaries. While we remain ever-willing to assist with these, there are steps which farmers can take to mitigate the risk of any pollution and prosecution.

Storage

A significant cause of slurry-related pollution incidents is often overflowing slurry storage. At present, the Silage, Slurry and Agricultural Fuel Oil (SSAFO) rules require a minimum of four months’ storage for slurry to meet the Farming Rules for Water. When exceptional circumstances arise that result in farmers generating more than four months’ slurry, temporary storage measures constructed without the same structural integrity as permanent storage can fail, leading to pollution and Environment Agency enforcement.

Certain structures are exempt from the SSAFO rules; storage systems built before March 1991, or systems where a contract for construction was entered into before March 1991 and was subsequently completed before September 1991. However, there are numerous circumstances in which these structures lose their exempt status: where farmers wish to make substantial structural changes to their store, where an old structure needs to be relocated, or where capacity needs to be increased beyond the exempt structure.

Furthermore, where the Environment Agency considers that there is a significant risk of pollution on sites with exempt structures, the Environment Agency can serve notice under the Water Resources (Control of Pollution) (Silage, Slurry and Agricultural Fuel Oil) (England) Regulations 2010 (“the Water Resources Regulations”) requiring farmers to carry out works on their slurry storage and bring their existing systems up to the standards required under SSAFO. Such works can be expensive, and even more so in the event that a farmer fails to comply with such a notice. In these circumstances, the Environment Agency can prosecute farmers under Regulation 10 of the Water Resources Regulation for non-compliance, the penalty for which can be a fine, to an unlimited maximum, based on the offender’s means.

Slurry Infrastructure Grant

Recognising the challenges ahead for farmers and the needs of many for assistance in mitigating risk, the Government announced the new Slurry Infrastructure Grant in late 2022. The new Grant is designed to enable farmers to improve or expand their storage capacity up to at least 6 months’ storage. These changes  allow farmers to go beyond the minimum period specified in SSAFO and matches the minimum requirement in Nitrate Vulnerable Zones.

It is a condition of the Slurry Infrastructure Grant that any grant-funded store must be fitted with an impermeable cover. This is the case for any additional storage built to supplement existing stores, for any expansion made to existing storage, or for any new structure built as a replacement for existing stores that are no longer fit for purpose. This requirement is consistent with the Government’s Clean Air Strategy from 2019, which sets out the requirement for all slurry and digestate stores to be covered by 2027. The clear intention of this requirement is to minimise future risk of pollution incidents from overflowing sewage storage.

Any owner of a previously-exempt structure who has been served with a notice under the Water Resources Regulations requiring that storage to be brought up to SSAFO standards will be pleased to know that the issue of a Notice does not preclude them from making an application for a Slurry Infrastructure Grant.

There are a number of matters which the Slurry Infrastructure Grant cannot cover, which are set out in full on DEFRA’s guidance regarding the Grant Scheme. We strongly advise any farmer looking to make an application for a grant to seek professional advice on their proposed works prior to making any application.

Consequences

Farming is never entirely without risk, and slurry storage is no exception to that rule. The consequences of taking unnecessary risks with slurry storage or of systems failing can be catastrophic for the environment and cause lasting damage even on a localised scale. In addition, farmers can find themselves involved in protracted legal proceedings and face substantial fines if convicted of criminal offences.

If matters do go wrong, we strongly encourage you to seek independent legal advice as a matter of priority. Our team is well-versed in advising farmers on pollution-related incidents and advises at all stages of a matter, from the initial contact with the Environment Agency through to Court proceedings.

Contact our experts

To speak to a member of our team who can offer expert advice on criminal & regulatory legal services for the agriculture sector, please request a consultation.

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Your key contacts

Sam Harkness

Solicitor

Taunton
Sam specialises in criminal and regulatory litigation, advising clients across a diverse range of sectors throughout the criminal and regulatory process, with a broader litigation practice in property, probate and agricultural matters.
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Bridget Sanger

Senior Associate

Bristol
Bridget defends, represents and advises companies and individuals investigated and/or prosecuted in the criminal courts, with particular specialism in regulatory work surrounding agriculture and regulatory work surrounding care homes
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