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Permanent Representation

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the European Union

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Ms Catherine Day
Secretary General
Secretariat General EEE
European Commission !
3.0. 05. 2007 |

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Rue de la Loi 200
B -1049 Brussels mn =
Belgium

25 May, 2007

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

Infringements References 1994/4274 1990/5220 1990/0961 1994/4077
Dear Secretary General,

I have been asked by my authorities to respond to the Commission’s Reasoned
Opinion dated 21 March 2007 under Article 228 of the Treaty establishing the
European Community (reference SG-Greffe (2007) D/201419) with regard to the
measures taken by Ireland to comply with the judgment in Case C-282/02,
concerning Ireland’s implementation of Council Directive 76/464/EEC on pollution
caused by certain dangerous substances discharged into the aquatic environment of
the Community (now Directive 2006/11/EC of the European Parliament and of the
Council).

Firstly, my authorities have asked that I thank the Commission for the numerous
meetings that have taken place between the Commission and Irish officials. These
meetings have been of significant assistance in reaching a common understanding of
the measures which need to be put in place to bring Ireland into compliance with the
judgment of the Court. My authorities have also asked that I again reiterate their
commitment to put in place all necessary measures to comply with this wide-ranging
and comprehensive judgment.

As indicated in previous responses to the Commission, significant progress has been
made with regard to measures being taken by Ireland to comply with the Court
judgment.
e Ihe European Communities (Good Agricultural Practice for Protection of
Waters) Regulations 2005, (S.IL. No. 788 of 2005) were made in December
2005 and came into effect on 1 February 2006. The regulations apply to all
farms across the whole territory, give legal effect to Ireland’s national
Nitrates Action Programme and specifically address the prevention of
phosphorus discharges from all farmyard installations. These Regulations
were amended and updated in 2006 and will be amended again in the near
future to provide for significantly increased penalties.

e Proposals are being developed, in consultation with the Office of
Environmental Enforcement (OEE) of the Environmental Protection Agency
(EPA) to provide a stricter local authority enforcement system. Regulations

REPRESENTATION PERMANENTE DE L’IRLANDE AUPRES DE L’UNION EUROPEENNE
Rue Froissart 89-93, 1040 Bruxelles Tel. 02 230 85 80 Fax 02 230 32 03

2

to govern the practice of aerial fertilisation of forestry were made by the
Minister for Agriculture and Food on 24 November 2006 and these
Regulations will also be amended shortly to provide for significantly
increased penalties.

e Following considerable consultation with the Commission, Urban Waste
Water Discharge Authorisation Regulations will be made in the very near
future.

e Draft Regulations to provide for the licensing of discharges from marine
installations are being submitted with this correspondence for the
Commission’s consideration.

e Systematic and comprehensive measures continue to be developed under the
Water Framework Directive in relation to pollution reduction programmes,
water classification systems (including water quality standards) and
monitoring.

e It is envisaged that draft Classification Regulations to establish the class
boundaries and environmental quality standards needed to give effect to the
new Water Framework Directive surface-water classification systems will be
submitted to the Commission by end June 2007.

Ireland’s responses to the specific issues raised in the Commission’s Reasoned
Opinion under Article 228 of the Treaty are set out hereunder.

Failure to comply with the provisions of Article 7’) ofthe Directive.
(now Article 6(1) of Directive 2006/11/EC)

Article 7(1) of the Directive requires that:
In order to reduce pollution of the waters referred to in Article I by the
substances within List II, Member States shall establish Pprogrammes in the
implementation of which they shall employ in particular the methods
referred to in paragraphs 2 and 3.'

Canals

Ireland intends to issue, for public consultation, recommendations in regard to water
quality objectives for canals in June 2007. In this regard please see detailed
response under the second head of complaint.

Pollution Reduction Programmes

As indicated in previous correspondence and at meetings with Commission officials,
Ireland will establish pollution reduction programmes in respect of all substances of
relevance in an Irish context (including substances derived from the industrial

sector). In this regard please see detailed response under the second head of
complaint.

Water quality objectives for Phosphorus

Progress in relation to establishing additional environmental water quality standards
is outlined in Ireland’s response under the second head of complaint. In the process
of developing environmental water quality objectives for the purpose of giving
further effect to the Water Framework Directive existing water quality objectives for
phosphorus, established under the Local Government (Water Pollution) Act, 1977
(Water Quality Standards for Phosphorus) Regulations, 1998 (S.I. No. 258 of 1998),
have been reviewed. The Environmental Protection Agency will include
recommended revisions to these existing phosphorus environmental water quality

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objectives in the public consultation document (incorporating draft Regulations) on
surface water classification systems due to be published by end June 2007.

As discussed at a bilateral meeting with Commission officials on 8 March 2007, my
authorities consider that it would not be useful or appropriate at this stage to amend
S.I No. 258 of 1998. These interim Regulations will run their course at the end of
2007 and will be replaced by the Classification Regulations. At the 8 March 2007
meeting the Commission made the point that there was need for some overall
arrangement whereby a specific entity has oversight for the multi-agency
programme to tackle and redress phosphorus pollution. As informally indicated by
my authorities at the meeting Ireland saw merit in this approach as a support at
national level for the co-ordination arrangements at the level of river basin districts
mandated by the Water Framework Directive. This matter is being pursued in
consultation between the EPA and the relevant Government Departments.

Licensing of Trade Effluent

In paragraph 16 of the Reasoned Opinion the Commission quotes from the
“Phosphorous Regulations National Implementation Report, 2005” published by the
Environmental Protection Agency, which refers to some shortcomings by local
authorities in licensing trade effluent discharges. The Water Services Act 2007
(recently enacted, with a copy to be forwarded when available from the printers)
consolidates and updates the 1977 Water Pollution Act provisions on trade effluent
discharge licensing and will facilitate improved local authority performance in this
area. The new legislation has removed certain ambiguities by utilising definitions
from the Urban Waste Water Treatment Directive and will facilitate ongoing
synchronisation of national and EU regulation. Section 63 of the Act, which
replaces section 16 of the 1977 Water Pollution Act, requires a local authority, in
deciding whether or not to grant a licence, to take full account of the objectives
contained in any relevant water quality management plan under section 15 of the
1977 Act and a water services strategic plan made under section 36 of the 2007 Act
and to take account of whether the grant of such a licence would be prejudicial to the
waste water works into which the proposed discharge would be made.

It is provided in section 63 of the 2007 Act that a licence shall not be granted if the
trade effluent discharge would not be compliant with any relevant standard
prescribed under section 26 of the 1977 Act or would be inconsistent with the
objectives of a relevant water quality management plan under section 15 ofthe 1977
Act or the grant of a licence would be prejudicial to the waste water works into
which the proposed discharge is to be made. Section 63 also requires water services
authorities to ensure that all licensed discharges (or discharges in relation to which
they stipulate conditions to the EPA for insertion into an IPPC licence) comply with
the pre-treatment requirements outlined in Schedule 2 of the 2007 Act. This
Schedule includes, inter alia, measures to ensure that discharges from treatment
plants do not adversely affect human health or the environment or prevent receiving
waters from complying with any European Community Directives and to ensure that
sludge can be disposed of safely, in an environmentally acceptable manner.

Section 63 also provides that it is an offence for any person to discharge trade effluent
to a sewer, which is owned or controlled by a local authority, without a licence, or to
fail to comply with a condition of a licence, including a condition requiring the taking
and analysis of samples, the keeping of records and furnishing of information to the
local authority, or to fail to comply with a notice served on a person by a local

4

authority under subsection (8) of section 63 who is making, causing or permitting a
discharge or entry in contravention of that section. The notice may require that the
person cease the contravention within a specified period and require the person to
remedy or mitigate any effects of the contravention within the period and in such
manner specified in the notice. The issue of a notice under section 63(8) would not
affect the prerogative of a local authority to prosecute the person under subsection
(11) for breach of a condition of the licence.

Water Quality Dangerous Substances Regulations 2001 ($.I. No. 12 of 2001)

It is noted that it is stated in the Reasoned Opinion in so far as the water quality
objectives fixed by S.I. No 12 of 2001 and associated measures are presented as
compliance measures for the judgment, the Commission accepts the validity of the
water quality objectives for the purposes of complying with the judgment.

It is stated in paragraph 17 of the Reasoned Opinion that it is not evident that the
measures taken under S.I. No 12 of 2001 meet the criteria for pollution reduction
programmes set out in paragraph 38 of the judgment. Ireland is satisfied that the
measures taken do meet the said criteria.

In this regard my authorities are guided by the decision of the European Court of
Justice on the content of the pollution reduction programmes required under Article
7 (Case C-207/97 Commission v Belgium [1999] ECR 1-275). The programmes to
be established must be specific i.e. they must encompass a comprehensive and
coherent approach in keeping with the strict requirements of Articles 7(2)
(authorisation) and 7(3) (quality objectives); they must cover the entire national
territory, and they must provide practical and coordinated arrangements for the
reduction of pollution by any of the substances in ‘List IP’ which is relevant in the
particular context of the Member State concerned, in accordance with the quality
objectives fixed by those programmes for the affected waters.

The nature of the pollution reduction programmes to be put in place is therefore to
be very precisely defined if these programmes are to be characterised as
programmes for the purpose of Article 7; these differ from general reduction
programmes and from bundles of ad hoc measures and other operational
arrangements designed to generally reduce water pollution.

In the process of developing environmental water quality objectives for the purpose
of giving further effect to the objectives ofthe Water Framework Directive existing
water quality objectives for the 14 dangerous substances, established under S.I. No.
12 of 2001, have been reviewed. The EPA will include recommended revisions
(where appropriate) to these environmental water quality objectives in the public
consultation document on surface water classification systems due to be issued by
end June 2007.

Failure to comply with the provisions of Article 7(3) of the Directive.
(now Article 6(3) of Directive 2006/11/EC)

Article 7(3) ofthe 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.’

Quality Objectives

Significant progress has been made by Ireland in relation to the establishment of
additional quality objectives. The Minister for the Environment, Heritage and Local
Government will make Classification Regulations by the end of 2007 to establish the
class boundaries and environmental quality standards needed to give effect to the
new Water Framework Directive surface-water classification systems. The
Regulations will address all waters (rivers, lakes, canals, reservoirs, and transitional
and coastal waters).

Status classification for the purpose of the Regulations will include both chemical
status and ecological status. Chemical status will be defined by reference to
environmental quality standards to be established at Community level for 41
chemical substances requiring priority action on an EU-wide basis. Ecological
status will be defined by reference to a number of prescribed biological quality
elements, supporting physico-chemical quality elements (i.e. nutrients, pH, DO etc)
and environmental quality standards to be established at national level for other
chemical substances, i.e. substances other than priority action substances, identified
as being discharged in ‘significant quantities’ into Irish surface waters.

The Classification Regulations will lay down the quantitative criteria for
establishing the class boundaries for the range of quality elements required under the
Water Framework Directive, will address all surface water categories and will place
an obligation on the EPA to classify all surface water bodies on the basis of the
prescribed criteria within a prescribed timeframe. Waters will be classified using the
representative monitoring programmes established in accordance with the
requirements of Article 10 of the European Communities (Water Policy)
Regulations 2003 (S.I. No. 722 of 2003). The Regulations will furthermore place a
general obligation on public authorities to take such actions as may be appropriate to
secure compliance with the environmental objectives of the Directive and with the
provisions of any detailed Programmes of measures contained in a river basin
management plan made for the purpose of achieving the environmental objectives of
the Directive.

These Regulations will therefore respond in full to the Court ruling that Ireland has
failed to establish quality objectives for all substances in all waters, and will
comprise a critical element of the overall pollution reduction programme required
under Article 7 of Directive 76/464/BEC.

These Regulations cannot be brought forward sooner by Ireland, given the technical
complexities involved in developing entirely new systems, the need for co-
ordination of measures with Northern Ireland (and the UK. generally), delays in
progressing measures under Article 16 of the Water Framework Directive and the
requirement on Ireland to participate in the EU intercalibration exercise required
under Section 1.4.1 of Annex V to the Water Framework Directive to ensure
comparability of Member States biological monitoring systems, these being a central
part of the ecological status classification, including conformity with the normative
definition of ecological status set out in the Directive.

There is also need for comprehensive consultation on the Classification Regulations
at national level and the carrying out of a Regulatory Impact Analysis. The draft
Regulations and supporting documentation will be issued for public consultation by

6

Environmental Protection Agency by end June 2007. A copy of the consultation
document will be transmitted to the Commission at that stage.

Margaritifera margaritifera
Ireland has designated SACs for Margaritifera margaritifera which hold c. 85% of
the known national population of the species.

Work is underway to define the water quality standard for phosphorus in those
rivers, or parts of rivers, which are important for Margaritifera. As this is a
complex scientific issue, involving great variation in the flow rates of rivers over
time, which will affect the transport of silt as well as nutrients, the preferred and
realistic time frame is for determination of the relevant water quality standard by
June 2008.

The main threats to Margaritifera are siltation and eutrophication. There are
numerous measures in place to address these threats. The measures include, for
example, the implementation of the Single Farm Payment Scheme, REPS 3 and 4,
Commonage Framework Plans and the Forest Service Guidelines on Forest
Management within Pearl Mussel Catchments.

Lake Water Analysis

In Paragraph 22 of the Reasoned Opinion the Commission states that it is not
evident that Ireland is addressing the issue of lake water analysis. With regards to
the reliability of the lake monitoring programme the attached EXCEL file details the
number of sampling sites being monitored on each lake waterbody in the new Water
Framework Directive lake monitoring programme and indicates a significant
increase in the annual sampling frequency compared with previously. This
programme is consistent with the requirements ofthe Water Framework Directive.

Breach of Article 7(2) of the Directive
(now Article 6(2) of Directive 2006/11/EC)

Article 7(2) of the Directive requires that
AU 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."

Local Authority Discharges

Paragraph 24 of the Reasoned Opinion refers to the Court having upheld the
Commission’s view that Ireland had failed to make certain local authority discharges
subject to authorisation in accordance with Article 7(2) ofthe Directive.

Paragraph 25 of the Reasoned Opinion refers to the Regulations that have been
drafted and that have been the subject of considerable consultation with the
Commission. On completion of the final consultation period in the very near future,
Ireland will proceed to make the Regulations. Under the Regulations, discharges
from all waste water works in the ownership or control of local authorities to all
waters, including surface waters and groundwater, will require authorisation from
the EPA, as the competent authority, by a prescribed date, The authorisation will
lay down conditions and requirements relating to the discharges, including the

”

setting of emission limits for pollutants discharged. These Regulations will address
the Court judgment of 2 June 2005 which held in paragraph 70 that Ireland failed to
make certain local authority discharges, such as waste water discharges and storm
water overflows, subject to authorisation.

In order to facilitate the efficient introduction of the new authorisation regime, the
EPA is conducting three 1-day seminars for local authority staff throughout the
country on 19, 20 and 21 June to give a detailed briefing on the authorising process,
together with the details of the obligations and requirements placed on the
authorities by the draft Regulations. The objective is to provide authorities with the
opportunity to put the necessary arrangements in train so as to meet the prescribed
timelines for the making of authorisation applications.

Discharges from marine installations

Targeted resources are addressing Ireland’s implementation issues with the
Dangerous Substances Directive in the marine environment. The Department of
Communications, Marine and Natural Resources (DCMNR) is currently considering
advice received from the Attorney General on the most appropriate implementation
method.

The Department has examined the judgment and Reasoned Opinion carefully and
have identified proposals to install appropriate authorisation for dangerous
substances in the marine aquatic environment. The need for legal advice arises due
to the difficulties presented in amending existing aquaculture licences to take
account of Article 4 whereby authorisation must be limited in duration and must
take into account emission standards.

The Department has also engaged with officials in the Commission to ensure that
the Commission is aware of the nature of the proposals being put forward and of the
commitment of the Department to fulfilling its obligations under the Directive. The
Attorney General has advised that Regulations can be made under the European
Communities Act 2007 to put in place the appropriate level of control. The
Department proposes to advance the legislative measures on the basis set out in the
action table below.

  
 
 

Draft preliminary Regulations 4 weeks at DCMNR

Consult on Regulations

Awveck —— |
Settle Regulations 8 weeks at Office of Parliamentary
Counsel
Enactment and communication to 1-2 weeks
Commission

A copy of the draft Regulations is enclosed for information. The Department
welcomes any comments or observations which the Commission may have. The
Regulations are in the preliminary stage of drafting. As such, the measures set out
in the Regulations may differ from those which are finally enacted. DCMNR will
seek the technical contribution of the appropriate agencies and departments of the
State to ensure that the measures being implemented are consistent with other
environmental considerations.

 
 

      

To date, the only identified source of dangerous substances in the marine
environment is marine finfish farming. However, DCMNR will ensure that

8

appropriate standards are in place should other installations come on stream by
“future proofing’ the draft Regulations to control such installations by allowing for
conditions relating to dangerous substances to be attached to Foreshore Licences.

Marine finfish farming has been the subject of detailed study by the Marine Institute
to identify the source of, nature of and methods of control that can be applied to
dangerous substances. The Marine Institute has prepared advice for Irish public
authorities involved in the implementation ofthe Water Framework Directive on the
use of dangerous substances in aquaculture. A recent report prepared by the
Institute for one of the main River Basin Districts where marine finfish farming
takes place is enclosed. This report illustrates the effort which is being made at a
research level to ensure that future regulation of the use of dangerous substances in
the marine environment is appropriate and effective.

Discharges from fixed agricultural installations
My authorities note that the Commission acknowledges that European Communities
(Good Agricultural Practice for Protection of Waters) Regulations 2006 (S.I. No.
378 of 2006) impose a stricter pollution avoidance duty in relation to fixed
agricultural installations than existed heretofore.

My authorities have noted the Commission’s concerns in relation to certain aspects
of these Regulations (“the GAP Regulations”) and propose to make amending
Regulations to ensure conformity with the Judgment of the Court and the Directive.
By way of an immediate amendment my authorities propose to significantly increase
the penalties applicable by breaches of the Regulations. This has been made
possible by the recent enactment of the European Communities Act 2007 (No. 18 of
2007). Regulations to provide for indictable offences and penalties under S. I. No.
378 of 2006 are currently being finalised. The text of the proposed Regulations will
be transmitted to the Commission very shortly. It is envisaged that the Regulations
will be made in June 2007.

The Commission has expressed concerns regarding the local authority enforcement
system in operation under S.I. No. 378 of 2006 and the percentage of farm
installations that are subject to inspection to ensure compliance with the
Regulations. My authorities wish to assure the Commission that high priority has
been, and continues to be, assigned to the effective implementation of these
Regulations and other statutory controls in relation to water quality and
environmental matters generally. For example, in relation to the protection and
improvement of water quality, the recently-enacted Water Services Act 2007
provides (at section 110) for significantly increased financial penalties under the
Local Government (Water Pollution) Acts. The maximum amounts of the increased
penalties are €5,000 and €15 million in the case of summary and indictable offences,
respectively. In relation to the GAP Regulations, specific and extensive measures
have been taken to ensure that the co-ordinated enforcement of the Regulations in
the context of cross-compliance and otherwise. A Working Party of officials of the
relevant authorities was established to develop a consistent and co-ordinated
approach under the Regulations. The Working Party comprised officials of
Government Departments, the EPA, local authorities etc: a common check-list for
inspections has been produced and is in use: a cross-reporting system has been
established to ensure that where non-compliance is detected by one authority it is
reported to other relevant authorities: a guidance document for farmers has been
produced and issued to farmers. My authorities are giving consideration to the

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extent to which implementation of the Regulations could be strengthened on a
legislative basis, by way of amending the Regulations.

Systems for the protection and improvement of water quality are being significantly
strengthened by the general measures being taken bythe OEE. The Commission has
been made well aware of the extensive and successful measures taken by the ORE in
the context of waste management. The OEE and the Environmental Enforcement
Network (EEN) has greatly raised awareness and is bringing about a better practice
and a more co-ordinated, consistent approach to environmental enforcement, as
outlined below.

The EEN was created in 2004 to provide a vehicle for public bodies involved in
environmental protection and regulation to work together to achieve more consistent
and effective enforcement of environmental legislation. The main bodies in the
network include the OBE, local authorities and Government Departments.

Priority work areas for the EEN include improved communications between
authorities, implementation of the EU Recommendation on Minimum Criteria for
Environmental Inspections (RMCEI), training of staff involved in environmental
regulation, dealing with environmental complaints and improving the coordination
of enforcement action. Improvements achieved by the EEN to date include the
following: -

o In 2006, the main focus of the RMCEI network was the piloting of inspection
planning. 30 of the 34 local authorities produced inspection plans for 2006
and a number have already revised these plans for 2007. Further work will be
carried out in 2007 on the preparation of inspection protocols and report
templates to facilitate local authorities to meet these requirements of the
Recommendation.

® To further progress the implementation of the Recommendation, meetings of
the RMCEI network are being considered for June and September/October
2007. These meetings would focus on how implementation of the plans is
being monitored and would facilitate dissemination of any additional
inspection guidance developed in the interim. The EEN Guidance on RMCEI
will be revised as part of the revision of the EEN Manual, which will be
republished in October 2007.

® The OEE has published an enforcement manual which draws together all of
enforcement protocols developed by the various working groups within the
network. The manual provides guidance on general enforcement topics
including inspection management, complaints handling and resolution,
evidence gathering and preparation for court.

® Capacity building and knowledge management has been enhanced through
training; the formal dissemination of guidance; and the exchange of
information sessions organised on specific topics.

. A National Environmental Complaints Procedure (NECP) has been developed
and disseminated to public authority bodies and the European Commission.
Complaint co-ordinators have been appointed in local authorities and the
majority of authorities have well progressed their implementation of the

10

procedure. A public launch of the NECP and a leaflet on ‘How to Make an
Environmental Complaint’ took place in April 2007.

® Implementation of the Local Authority Management System (LAMS). This is
a one-stop shop that lists all statutory environmental protection functions of a
local authority. The system consists of six thematic sections (waste, noise,
water quality, air, wastewater and planning) and contains a series of checklists
that a Local Authority can use to ensure that it is aware of its own actions in
relation to all of its statutory environmental functions. The system provides
some management information in relation to overall coverage by a local
authority of its 500+ environmental functions. LAMS is being promoted via a
series of local authority audits. 15 audits were undertaken in 2006 and the
remaining authorities will be audited by mid-2007.

. The National Water Conference organised by the EPA in collaboration with
its partners in the EEN has become refocused as an enforcement conference;
the conference which took place in June 2006 was attended by some 220
delegates from over 60 organisations, including all the major players involved
in the implementation of water related legislation along with a number of
delegates from industry and the NGOs. The 2007 Conference will take place
on 12 and 13 June and areas to be covered include implementation ofthe GAP
Regulations and the Water Framework Directive.

o Improved communication on topics and issues has been achieved through
formal events, the use of the extranet, issuing a newsletter to over 5000
stakeholders, issuing reports, and informally through the use of the extensive
contacts database.

e The OEE organises meetings, seminars and conferences for the EEN and
provides secretariat support. Communication with the City & County
Managers Association, (CCMA) happens via the Steering committees, letters
to County Managers and Directors of Services from the Director of the OEE,
and presentations at CCMA meetings.

® The extranet has been developed to facilitate co-operation between the various
agencies involved in enforcement of environmental legislation by providing a
shared work area for exchange of information and experience in the
implementation, application and enforcement of environmental legislation.
The extranet is only open to public sector staff involved in the regulation and
enforcement of environmental protection legislation.

®e _EEN Surface Water Working Groups continue to work as pilot projects on co-
ordinated enforcement in the Suir and Erne/Blackwater catchments and on key
areas such as agriculture and sewage treatment.

Discharges from aerial spraying over forests

The first issue raised is the claim that the authorisation system cannot operate
properly in the absence of a comprehensive system of phosphorus quality objectives.
In its judgment, the Court found that Ireland did not have provision for authorising
acrial spraying of fertilizer over forest sites in accordance with the Directive. S.I.
No. 592 of 2006 of 24 November 2006 made provision for the regulation of aerial
fertilization of forests. Since then, aerial fertilization can only be carried out under