REPRESENTATION PERMANENTE RUE FROISSART 89-93
DE L'IRLANDE
AUPRES DE

L’UNION EUROPEENNE

1040 BRUXELLES
TEL. O2 23085 so

FAX 02 2303203

Ms Catherine Day
Secretary-General
Secretariat-General
European Commission
Rue de la Loi 200

B -1049 Brussels
Beigium

 
  

10. 01. 2007

 
  

SG-R-2

‚4 December, 2006 er

Re: European Court of Justice Judgment in Case C-282/02
Commission -v- Ireland

Infringement References: 1994/4274 1990/5220 1990/0961 1994/4077

—

Dear Secretary-General

| have been asked by my authorities to refer to my reply dated 9 June 2006 to the
Commission’s Letter of Formal Notice dated 4 April 2006 under Article 228 of the
Treaty (reference SG-Greffe (2006) D/201687) relating to the measures taken by
Ireland to comply with the judgment in Case C-282/02, concerning Ireland’s
transposition and implementation of Council Directive 76/464/EEC on pollution
caused by certain dangerous substances discharged into the aquatic environment
ofthe Community.

That reply was discussed at a meeting held on 27 July 2006 attended by officials
from the Department of the Environment, Heritage and Local Government
(DEHLG), the Department of Agriculture and Food (DAF) and the Commission. It
was agreed at that meeting that Ireland would submit a further comprehensive
response to the Commission which would have full regard to the issues discussed
and agreed. It was also agreed the reply should cover Ireland’s responses to all
aspects of the judgment and full links should be made to same. For ease of
reference, the approach taken in this reply is that the findings are restated under
each head of complaint and the relevant article of the Directive, but synopsised
where possible for the sake of brevity. In instances where there are interlinkages
between findings the responses have been grouped. A draft of this rep!y was
discussed at a further bilateral meeting held with the Commission on 5 December
2008.

My authorities wish to advise the Commission that significant progress has been
made with regard to measures taken and proposed to be taken by Ireland to comply
with the Court judgment. An inter-Agency Group has been established to co-
ordinate and promote the implementation of the necessary measures to respond
fully to the judgement. The European Communities (Good Agricultural Practice for
Protection of Waters) Regulations 2006, (S! No. 378 of 2006) made on 18 July
2006, which apply across the whole territory, give legal effect to Ireland’s national
Nitrates Action Programme and specifically address the prevention of phosphorus
discharges from farmyard installations. Regulations to govern the practice of aerial
fertilisation of forestry were signed by the Minister for Agriculture and Food on 24

November 2006. Following on from the meeting on 5 December 2006 and the
issues raised by the Commission in relation to the draft UWWT licensing
regulations, work is proceeding on a substantial review and redraft of the
regulations. Systematic and comprehensive measures are being developed under
the Water Framework Directive (WFD) in relation to pollution reduction
programmes, water classification systems (including water quality standards) and
monitoring.

1. Failure to comply with the provisions of Article 7(1) of the Directive.
Article 7(1) of the Directive requires that;

In order to reduce pollution of the waters referred to in Article 1 by the substances
within List Il, Member States shall establish programmes in the implementation of
which they shall employ in particular ihe methods referred to in paragraphs 2 and
3. ’

The findings of the Court under this head of complaint are set out in paragraphs
38-43 of the judgment.

Paragraph 38 states that according to the Court’s case-law programmes to be
established under Article 7 must be specific and embody a comprehensive and
coherent approach providing practical and coordinated arrangements covering the
entire nalional territory for fhe reduction of pollution caused by any of the
substances in List II which is relevant in the particular context of each Member
State. The concept of programmes thus implies a series of coordinated, integrated
and comprehensive measures.

As indicated in my correspondence of 24 November 2005 and 9 June 2006 my
authorities will establish pollution reduction programmes in respect of all
substances of relevance in an Irish context. In this regard please see detailed
response under the second head of complaint to paragraphs 48-56.

Paragraph 39 indicates that it is appropriate to examine whether the national
measures adopted by Ireland satisfy those criteria and the findings in relation to
same are sef out in paragraphs 40, 41 and 42.

Paragraph 40 points out that as the Water Quality (Dangerous Substances)
Regulations 2001 came into force after the period set in the supplementary opinion
had elapsed the Court could not take account of same. As a consequence the
Court found that Ireland had not established pollution reduction programmes for all
the substances in respect of which it was required to do so.

In my correspondence of 24 November 2005 and 9 June 2006 | indicated that my
authorities wished to discuss with the Commission the conformity (or otherwise) of
these Regulations with the requirements of Council Directive 76/464/EEC. It was
agreed at the meeting with the Commission on 27 July 2006 that issue would be
discussed at the next meeting with the Commission following the submissiorı of the
EPA’s published report on the Implementation of the Regulations. The EPA plans to
publish this report in January 2007 and on publication it will immediately be
transmitted to the Commission.

Paragraph 41 states that the Local Government (Water Pollution) Act, 1977 (Water
Quality Standards for Phosphorus) Regulations, 1998 do not encompass canals.

As indicated in my previous correspondence and at the meefings with the
Commission on 27 July and 5 December 20086, Ireland fully accepts that this and
other deficiencies exist in these Regulations and as a consequence the legislation
requires amendment. In this regard please see detailed response to paragraphs
48-56 under the second head of complaint. My authorities have asked that | draw
attention to the fact that in relation to the development of classification systems
under the WFD, water quality standards (including phosphorus) are being
developed in relation to canals as well as other surface water types.

Paragraph 42 notes the position in relation to the establishment by a number of
local authorities of agricultural bye-laws.

By their nature, bye-laws apply only in local, defined areas. This defect in the
general extent of agricultural regulation has been rectified by the establishrnent of
Ireland's national Nitrates Action Programme and the Regulations giving legal effect
to it - Le. the European Communities (Good Agricultural Practice for Protection of
Waters) Regulations 2006 (S.l. No. 378 of 2006).

Paragraph 43 states that regard being had to the foregoing it must be held ihat, by
not establishing pollution reduction programmes for all of the substances in respect
of which it was required to do so, Ireland has failed to fulfil its obligations under
Article 7(1).

Ireland's responses are set out in the foregoing paragraphs.
2. Failure to comply with the provisions of Article 7(3) ofthe Directive.
Article 7(3) of the Directive requires that;

'The programmes referred to in paragraph 1 shall include quality objectives for
water: these shall be laid down in accordance with Council Directives where they
exist.'

The findings of the Court under this head of complaint are set out in paragraphs
48-56 of the judgment.

Paragraph 48 declares that, even though Ireland states that it has complied with
Article 7, it acknowiedges in its Defence that, when the period set in Ihe
supplementary reasoned opinion expired, it had not adopted all of the measures
required by Article 7(3).

Paragraph 49 states that Ireland acknowledges in its Defence that it adopted
quality objectives only for phosphorus and 14 other substances, in the case ofthe
latter after the period set in the reasoned opinion had expired. No objective was
established for a number of substances derived from the industrial sector.

Paragraph 50 states that in the foregoing circumstances, It is clear that the first
iimb ofthis second head of complaint is well founded.

Paragraph 51 states that the 1998 Regulations do not encompass all surface
waters as canals are not included. The comments relating to lakes cover on!y 65%
of the total surface of lakes. Ireland limited itself to making mere observations on
the quality of water. While it may constitute an important element for the definition
of the quality objectives, the making of mere observations is not equivalent to the
establishment of such quality objectives.

Paragraph 52 states that with regard fo the failure to comply with the definition of
the term 'pollution' in the Directive, Ireland points out that the 1998 Regulations
constitute an interim measure designed to bring about improvements in the quality
of the waters specifically covered by those Regulations and must for that reason be
regarded as a pragmatic effort to deal with the problem of phosphorous pollution in
Ireland, while at the same time setting standards that are more stringent than those
employed in the legislation of other Member States.

Paragraph 53 indicates that as the Court has already ruled, the fact that a Member
State claims that it has set itself more ambitious objectives than those pursued by a
given Directive does not relieve it of its obligation to comply, at the very least, with
the requirements laid down in that Directive.

Paragraph 54 states that the fact of describing the 1998 Regulations as an interim
measure, the results of which relate io 2007, does not make it possible lo treat
those regulalions as being adequate for the purpose of giving effect to the
obligations deriving from Article 7(3), even though the Irish authorities are
contemplating the adoption of more stringent quality objectives. The argument put
forward by Ireland cannot, in those circumstances, be accepted.

Paragraph 55 states that as far as the reliability of the system for the analysis of
the quality of lake water is concerned, two studies prepared by the CFB and the
EPA and annexed to the Commission's Application place in question the reliability
of the systern whereby samples are taken from the centre of lakes. As Ireland has
not produced any evidence to gainsay the arguments puf forward, its argument on
this point must also be treated as being unfoundeti.

Paragraph 56 states that in the light of the foregoing, it must be held that, by not
establishing quality objectives in accordance with the requirements of Article 7(3),
Ireland has failed to fulfil its obligations under that provision.

A comprehensive programme of work is currently underway in Ireland to develop
water status classification systems for all water categories. Waters include rivers,
canals, lakes, transitional waters, coastal waters, heavily modified water bodies,
artificial water bodies and groundwater for the purpose of meeting the needs of the
WFD. The development of classification systems includes the setting of standards
for physico-chemical parameters supporting the biological elements and specific
pollutants listed in Annex VIII of the WFD.' The completion of this work will also
result in Ireland being in compliance with the requirements of the Dangerous
Substances Directive as well as giving effect to the requirements of the (WFD). A
comprehensive paper (titled The (WFD) and the Dangerous Substances Directive -
Work programme for developing classification schemes in Ireland including water
quality standards for dangerous substances) which describes the work programme
was submitted to the Commission with my correspondence dated 9 June 2006.

My authorities fully respect the necessity to respond fully to the ECJ judgment in as
short a timescale as possible, and is progressing this work programme in a
systematic way and as expeditiously as possible. The putting in place of an entirely
new classification scheme ıs a hugely demanding task (supported in part by

' General conditions include natural physico-chemical conditions such as nutrient concentrations,
temperature, oxygen and transparency listed in Annex VIII. Specific pollutants include both synthetic
substances (e.g. biocides and plant protection products) and non-synthetic substances (metals) listed
in Annex VII,

INTERREG funding). Significant work is being undertaken with Northern Ireland in
the context of shared waters and with the UK generally. Ireland is fully involved in
intercalibration work at EU level which will lead to consistency across the EU. My
authorities consider that this is the most appropriate approach for full and effective
implementation of the Dangerous Substances Directive. For example, in relation to
water quality standards, it would be impractical and inappropriate to adopt
provisional / interim standards (requiring full Regulatory Impact Analysis) as a short-
term response to the ECJ judgment having regard to the systamatic,
comprehensive and effective arrangements currently being put in place under the
WFD. Ireland has met and is continuing to meet all deadlines under the WFD,

A summary update, followed by more detailed information, on progress on whatisa
very substantial work programme is set out in the following paragraphs and in the
attached appendices.

Summary of main points regarding the development of classification systems

1. Biological classification tools for algal, plant and invertebrate communities
will be available by end December 2006 for rivers, lakes, canals, transitional
and coastal waters on target. Fish classification tools will be available at the
end of 2007.

2. Draft environmental water quality standards for a number of "general
conditions” {e.g. dissolved oxygen, nutrient) and specific pollutants (Annex
VIII, substances 1-9), will be available by end December 2006.

3. From the candidate list of 148 specific pollutants reported in January 2008,
39 substances have been shortlisted for inclusion in the national (WFD)
monitoring programme to commence on 22 December 20086.

4. Draft water quality standards for 18 specific pollutants are currently under
development (Phase 1). These will be delivered by the EPA by end
December 2006. The draft standards will undergo peer review and public
consultation starting in early 2007. It is anticipated that public consultation
in relation to specific pollutants will be initiated in Q2 2007 as part of a wider
consultation exercise to be undertaken on the new WFD classification
systems to be put in place. The process for giving legal effect to the
adopted standards from Phase 1 is being developed and it is expected that
regulations will be in place in Q4 2007. These standards will then be used
when setting discharge emission limits under systems of authorisation
referred elsewhere in this document.

5. Additional standards may be developed during 2007 (Phase 2) following a
review of additional information on substance usage.

6. To-date the national screening programme has detected 29 ofthe 41 priority
substances listed in the proposed Priority Substances Directive. All 41
priority substances will be included in the initial WFD monitoring
programme.

Development of monitoring programmes

The EPA was assigned responsibility for developing a programme of monitoring for
water status by 22 June 2006. The EPA published and submitted the prograrnme to
the Minister for the Environment, Heritage and Local Government on schedule. It
also invited public submissions on the programme in the national media. The

programme was assessed for compliance with the requirements of the WFD and
consideration was given to issues raised by the public submissions. The
programme generally complied with Article 10 (2). However, some additional detail
was required for the programme to be fully compliant. The Minister subsequently
issued a letter on 20 September 2006 requesting the EPA to amend the
programme. The EPA was required, within one month of receipt of the letter, to
publish the programme as so amended and send a copy of the programme and a
summary report of it to each authority to which a duty of monitoring is assigned by
the programme. This has now been done and the report is available on the EPA
website (http://www. epa.ie/OurEnvironment/Water/VVFD/MonitoringProgramme).
The programme is to be made operational by 22 December 2006. Arrangements
are currently being made to start monitoring.

Development of classification systems

The EPA was assigned responsibility for developing classification systems for water
status by June 2006. It was indicated in June 2006 paper that these systems would
be only partialliy complete at that stage.

The EPA submitted a report to the Minister for Environment, Heritage & Local
Government in June 2006 on the state of development with classification systems.
The report stated that the development of the classification systems had been
delayed but they would be ready before monitoring commenced (22 December
2006).

The following paragraphs provide details of progress with the development of each
quality element within the classification systems.

Surface Water classification systems

The process of developing surface water classification systems is reproduced in
Annex 1 to assist in explaining the state of play with systems development. The
paragraphs that follow describe the activities currently underway to provide the
ecological quality elements including biology?, the general conditions? supporting
biology (WFD Annex VIll, substances 10-12) and specific pollutants® (WFD Annex
VIN, substances 1-9).

Chemical Status? will be determined separately on the basis of EU standards set for
priority substances listed in Annex X of the (WFD) as well as standards already
established under other relevant EC Directives listed in Annex IX. The European
Commission published a proposal for a Directive in July 2006.

(1) Biological Quality Elements (See Annex 1)

Biological classification tools consisting of monitoring methodology and metrics for
caiculating Ecological Quality Ratios (EQRs) are being developed on a joint basis
by Ireland and the United Kingdom (UK) as both Member States share waters in

2 Biology includes algae, plants, invertebrates and fish.

° General conditions include natural physico-chemical conditions such as nutrient conceritrations,
temperature, oxygen and transparency listed in Annex VHl.

E Specific pollutants include both synthetic substances (e.g. biocides and plant protection products)
and non-synthetic substances (metals) listed in Annex VIII.

° Chemical standards include the 33 priority substances listed in Annex X and the standards
established under Directives ofthe Dangerous Substances Direclive (76/464/EEC).

Ecoregion 17 for rivers and lakes and in Ecoregion 1 for transitional and coastal
waters (Note: An EQR is a measure of the biological status of a water body
expressed on a scale of 0-1). The United Kingdom Technical Advisory Group
(UKTAG) and the North South Technical Advisory Group® (NSTAG) are leading
these tasks. Ireland participates on both groups. Tools are being developed
through a number of channels including tools developed by UKTAG to which
Ireland is contributing data, SNIFFER and the N/S SHARE project.

The schedule for development of biological classification tools (covering rivers,
lakes, transitional and coastal waters) reported in June 2006 remains on target. All
tools, including algae, plants, invertebrates and fish will be delivered by end
December 2006. One tool, namely a fish classifications tool for lakes has been
delayed due to a lack of survey data. Tool development will consequently extend
into 2007 when additional surveying will take place.

{2) Environmental water quality standards for “general conditions” that
support biological elements (See Annex N)

Work to develop draft physico-chemical water quality standards by end December
2006 for all surface water categories is on target. Standards are being developed
for parameters 10 to 12 in Annex VIII (general conditions) of the (WFD) that support
the biological elements. They include:
e Materials in suspension.
e Substances, which contribute to eutrophication (in particular, nitrates and
phosphates).
e Substances, which have an unfavourable influence on the oxygen balance
(and can be measured using parameters such as BOD, COD, etc.).

Standards for some parameters (e.g. nitrate concentrations in freshwaters and
transitional waters, phosphorus standards for protected areas) may need to be
developed further due to uncertainties in relationships between parameters and
ecological impact. The EPA will have standards available by end December 2006
(along with a first phase of draft standards for specific pollutants) for peer review
and public consultation.

As stated previously the draft standards will be revised and finalised once the
intercalibration exercise is completed in 2007.

3) Environmental quality standards for specific pollutants

Annex 2 sets out progress to date in identifying chemical substances of possible
national concern, including steps underway to advance the development of EQSs
for a prioritised list of substances under ‘phase 1’ ofthe overall programme.

This work is being brought forward primarily by way of two complementary
measures. The first is a national dangerous substances screening programme
designed to identify pollutants that may be present in the aquatic environment at
‘significant’ levels. Monitoring sites for the screening exercise were selected on the
basis that they would represent the 'worst-case’ scenario i.e. screening sites were
selected in the vicinity of major population / industrial cenires e.9. Cork Harbour,

 

6 The NSTAG is the North South Technical Advisory Group. It provides technical coordination between
northern and southern jurisdietions on the island of Ireland in the implementation of the European
Community (ECHWFD) (Directive 2000/60/EC)

downstream of Dublin etc. and in land-use situations usually associated with losses
of such substances e.g. tillage, sheep farming areas etc.

The screening programme commenced in May 2005 and concluded in October
2006. Each of the twenty-three initial screening sites was sampled on twelve
occasions. Additional sampling at six target sites commenced in May 2006 and
concluded in October 2006. A total of 161 chemical substances were initially
identified for analysis. The basis for their selection is set out in the discussion
document Rationale for Deriving National Priority Action Candidate Relevant
Pollutants for Surface Waters (May 2004) (which has been previously provided to
the Commission).

The second measure is a desk study designed to identify chemicals used in
significant quantities in Ireland and which might be deemed to pose a risk to the
aquatic environment through known exposure pathways.

My authorities have invested very significant national effort in bringing forward this
work, which has been underway since early 2004. My authorities believe that
approach it has adopted to be fully consistent with the iterative approach of the
(WFD), and in particular the procedures for the selection of relevant pollutants
outlined in Guidance Document No. 3 (Analysis of Pressures and Impacts) agreed
under the Common Implementation Strategy for the (WWFD) (2000/60/EC). Ireland
does not claim that the work undertaken to-date would necessarily represent the full
extent of all likely pollutants discharged in significant quantities to Irish waters.
Rather, the approach adopted has been designed to set priorities according to the
actual risk to and via the aquatic environment based on actual monitoring of water,
sediment and biota for a wide range of candidate substances identified from
existing lists established on the basis of their hazard potential to aquatic
ecosystems e.g. the OSPAR Priority List, DSD List I etc,

The prioritisation of further substances will be a continuing process and will take
into account ongoing review of all relevant data including the findings of the yet to
be completed Dangerous Substances Usage Study, the outcome of biological
monitoring, the findings of 'investigative monitoring’, future pressure and impact
analyses, and in particular the findings of the first nationwide monitoring results
which will give a more widespread geographical coverage than was provided under
the initial screening programme.

My authorities note the observations made by the Commission at the bilateral
meeting held on 5 December 2006, in particular comments relating to the extent of
the Irish draft list of substances. My authorities reiterate their commitment, as
demonstrated by efforts to-date, to ensure complete and effective implementation of
all necessary steps to ensure full compliance with regard to substance selection
and prioritisation. In this respect, notwithstanding the technical complexities
involved, my authorities are happy to commit to give a full and considered
evaluation of any further lists that might be indicated by the Commission, and which
in the view of the Commission should be taken into account in the current
evaluation.

(4) Chemical Status — Priority Substances standards (Annex X) and other EC
Directive standards (See Annex 1)

Where a body of water achieves compliance with all the environmental quality
standards established in Annex IX (Emission Limit Values and Environmental
Quality Standards), Artice 16 and under other relevant Community legislation
setting environmental quality standards it shall be recorded as achieving good

chemical status. HF one or more standards are breached, the body shall be recorded
as failing to achieve good chemical status.

In keeping with the provisions of Article 16 the Commission published its proposal
for a Directive in July 2006. Once adopted the Directive will be transposed into Irish
legislation by the due date.

The 33 Annex X priority substances and 8 List I substances from the Dangerous
Substances Directive are included in the National Dangerous Substances
Screening Monitoring Programme and National Survey of Dangerous
Substances Usage for the purpose of identifying those, which are discharged to
the aquatic environment. The national screening programme has detected 29 of
the priority substances to date. All 41 priority substances are included in the WFD
national monitoring programme due to commence on 22 December 2006.

Groundwater Standards

An agreement was reached on 17 October 2006 between the European Couneil
and the European Parliament for the new Groundwater Directive. This will set
standards for certain substances in groundwater at European ievel (nitrates and
pesticides). It will be transposed into Irish legislation by the due date.

3. Breach of Article 7(2) ofthe Directive.
Article 7(2) ofthe Directive requires that,

“All discharges into waters referred to in Article 1 which are liable to contain any of
the substances within List 11 shall require prior authorisation by the competent
authority in the Member State concerned, in which emission standards shall be laid
down. Such standards shall be based on the quality objectives, which shall be fixed
as provided for in paragraph 3.'

The findings of the Court under this head of complaint are set out in paragraphs
68-83 of the judgment.

Paragraph 68 states by way of a preliminary point, that as the Court has already
ruled on numerous occasions, it follows inter alia from Article 7(2) that
authorisations must contain emission standards which are applicable to authorised
individual discharges and which have been calculated in accordance with the
quality objectives previously laid down in a programme established pursuant to
Article 7(1) Because of the absence of a coherent and general system of quality
objectives, the other elements of a programme (authorisations and emission
standards based on the objectives) cannot be defined in such a way as lo comply
with the requirements of the Directive.

Paragraph 69 indicates that it must be borne in mind that, as has been established
in paragraphs 43 and 56 of the judgment, Ireland had not, atthe expiry ofthe period
laid down in the reasoned opinion, complied with the requirements in regard to the
establishment ofthe quality objectives.

Paragraph 70 states that in regard to the failure to make certain local authority
discharges, such as drainage discharges and storm water overflows, subject to
authorisation, it should be noted that the UWWT Regulations 2001 were adopted on
44 June 2001, almost one year after the date of the supplementary reasoned
opinion. The question whether there has been a failure to fulfil obligations must be