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Kocsy z verfee—

REPRESENTATION PERMANENT
DE L’IRLANDE

 

CONFIDENTIAL

Mr Peter Carl

Director General

Directorate General Environment
Commission of the European Union
Rue de la Loi 200

B-1049 Brussels

 

24th November, 2005

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

Dear Director General

| have been asked by my authorities to refer to your correspondence of 15
June 2005 regarding 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 of
the Community.

The judgment has been carefully considered and I wish to emphasise my
authorities commitment to put in place all necessary measures to comply
with all headings in the judgment. The wideranging judgment impinges on
the functions of a number of Government Departments and agencies. My
authorities met informally with Commission representatives on 15
September 2005 to explore the steps that Ireland would need to take to
respond adequately to the judgment.

The position with regard to the actions being taken by Ireland is set out in
the following paragraphs under the four of heads complaint under which the
findings of the Court were detailed.

1. Failure to comply with the provisions of Article 7(1) ofthe Directive

My authorities will establish pollution reduction programmes in respect of all
dangerous substances of relevance in an Irish context (including
substances derived from the industrial sector). In this regard a
comprehensive Dangerous Substances Screening Monitoring Programme
commenced in March 2005 and will be completed in August 2006. This
programme is being carried out by consultants (TNO Environment, Energy
and Process Innovation) and is funded by the Department of the
Environment, Heritage and Local Government. The programme will
establish the relevance (or irrelevance) of some 230 dangerous substances
in Irish waters. Preliminary results are currently being examined.

My authorities note that the Court was unable to consider the Water Quality
(Dangerous Substances) Regulations, 2001 (S.i. No. 12 of 2001) as this
legislation came into force after the period set in the supplementary
reasoned opinion had elapsed. These Regulations prescribed water quality
standards in relation to fourteen dangerous substances. As the matter
didn't arise at the informal meeting which took place on 15 September
2005, my authorities would wish to discuss with the Commission the
conformity (or otherwise) of these Regulations with the requirements of
Council Directive 76/464/EEC.

My authorities fully accept that the Local Government (Water Pollution) Act,
1977 (Water Quality Standards for Phosphorus) Regulations, 1998 (S.l. No.
258 of 1998) require amendment as a consequence of the judgment. As
indicated by my authorities at the 15 September 2005 meeting, Ireland has
initiated a number of very substantial work packages to advance the
development of new water classification schemes to ensure compliance
with the requirements of the Water Framework Directive. This will include,
inter alia, the development of standards for supporting physico-chemical
and chemical elements for all relevant freshwater categories. The outcome
of this research together with the implementing Regulations will address in
full all aspects of the judgment in relation to, inter alia, the quality objectives
for phosphorus. More complete details in this regard, including timeframes,
will be forwarded in January 2006.

2. Failure to comply with the provisions of Article 7(3) of the Directive

My authorities’ position as outlined under the first heading would also apply
in response to this heading. Also, due to time constraints it didn’t prove
possible at the 15 September 2005 meeting to discuss the Environmental
Protection Agency’s monitoring programme. My authorities would welcome
discussions in this regard.

3. Breach of Article 7(2) ofthe Directive

Prior to the 15 September 2005 meeting and subsequentiy my authorities
have been in ongoing contact with the Department of Agriculture and Food,
the Department of Communications, Marine and Natural Resources and the
Environmental Protection Agency so as to arrive at appropriate solutions.
Internal consultation is also ongoing within the Department of the
Environment, Heritage and Local Government. This process is continuing
and my authorities’ intention is that detailed proposals to fully respond to
this head will be developed and submitted informally to the Commission in
the first instance in January 2006. Certain aspects have however been
advanced since the 15 September 2005 meeting and the current state of
play is set out in the following paragraphs.

With regard to phosphorous discharges resulting from aerial spraying, the
Forest Service of the Department of Agriculture and Food is preparing draft
legislation in the matter. My authorities expect to be in a position to forward
this legislation to the Commission on an informal basis in the first instance
in December 2005. The Forest Service has indicated to my authorities that
no aerial fertilisation of forest plantations will take place before April 2006,
by which time the legislation will be in place. At the meeting with the
Commission representativres on 15 September 2005, the Commission
sought detailed information on current planting policy, guidelines etc. This
information has been submitted informally to the Commission.

My authorities have asked me to state that all reasonable steps will be
taken to contain phosphorus leakage from farmyards. In this regard | refer
to my letter of 16 June 2003 in response to the judgment of the European
Court of Justice in Case C-396/01 regarding Ireland’s implementation of
Directive 91/676/EEC concerning the protection of waters against pollution
by nitrates from agricultural sources. | enclosed with that correspondence
a copy of the European Communities (Protection of Waters against
Pollution from Agricultural Sources) Regulations 2003 (S.l. No. 213 of
2003). These Regulations which were made by the Minster for the
Environment, Heritage and Local Government in May 2003, following a
comprehensive consultation process with farming and other interests,
identified the whole territory of Ireland as the area to which an action
programme would be developed and applied for the purposes of
91/676/EEC.

The key consideration in adopting the whole territory approach was to
ensure that Ireland’s Action Programme under the Nitrates Directive would
address the reduction and prevention of pollution resulting from not only
nitrogen but also phosphorus from agricultural sources. Ireland’s revised
Action Programme was formally submitted to the Commission in July 2005
and Regulations to give legal effect to the programme are currently being
finalised. The Regulations will come into operation on 1 January 2006.
Compliance with the Regulations will be facilitated by financial assistance
under an expanded Farm Waste Management Scheme. My authorities

have indicated to the Department of Agriculture and Food that this scheme
should be seen to move towards a whole farmyard assessment approach
to contain phosphorus leakage. My authorities have also advised that
Department that in the context of preparations for the 2007-2013 Rural
Development Programme the Commission will be looking to see specific
measures for the protection of Ireland’s sensitive lakes. In addition, my
authorities will be seeking that the Department of Agriculture and Food
undertake an analysis of the various pathways of phosphorus loss from
farmyards.

4. Breach of Article 9 ofthe Directive

My authorities have carefully noted the findings under this head.

My authorities trust that this information satisfies the Commission as to our
commitment to the putting in place of all appropriate measures in response
to the requirements of the judgment. My authorities will be pleased to
provide any additional information or. clarifications required by the
Commission and officials are available for discussions with the Commission
if required.

Yours sincerely,

Ensironmentlcounsäter/

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