REPRESENTATION PERMANENTE

DE

AUPRES DE
L'’UNION EUROPEENNE

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Ms. Catherine Day CONFIDENTIAL
Secretary-General

Secretariat-General

European Commission

Rue de la Loi 200

B-1049 Brussels

9 June, 2006

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 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 of the Community.

At the outset my authorities have asked that | reiterate their commitment to
put in place all necessary measures to comply with all headings in the
judgment.

In my reply of 24 November 2005 to the Commission’s correspondence of
15 June 2005, | outlined the position with regard to the actions being taken
by Ireland to comply with the judgment. A further and more comprehensive
response was prepared by my authorities which they fully understood had
issued to the Commission on 24 March 2006. Regretfully it did not come to
light until receipt of the Article 228 Letter of Formal Notice that the response
had not in fact issued due to an administrative error. More comprehensive
information in the matter is now set out in the following paragraphs under the
four of heads of complaint under which the findings of the Court were
detailed,

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

Phosphorus Requlations/Water Framework Directive
As previously stated my authorities 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. In this connection and as indicated by my
authorities at the 15 September 2005 meeting with the Commission, Ireland
has already initiated a number of very substantial work packages to advance
the development of new water classification and monitoring schemes to
ensure compliance with the requirements of the Water Framework Directive
(2000/60/EC).

In this context a comprehensive paper is attached titled The Water
Framework Directive and the Dangerous Substances Directive — Work
programme for developing classification schemes in Ireland including water
quality standards for dangerous substances. This document describes work
currently underway to develop water status classification and monitoring
systems for all water categories including rivers, lakes, transitional waters,
coastal waters, heavily modified water bodies, artificial water bodies and
groundwater for the purpose of meeting the needs of the Water Framework
Directive. 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 Directive. The
outcome of this work together with the implementing Regulations will
address in full all aspects of the judgment in relation to, inter alia, the quality
objectives for phosphorus.

The Water Framework Directive National Technical Coordination Group
(NTCG) has developed a work programme setting out the activities that
need to be undertaken to implement the Water Framework Directive. The
NCTG is composed of the competent authorities responsible for
implementing the European Communities (Water Policy) Regulations 2003
(S.l. No. 722 of 2003). The group manages the technical work programme
necessary for implementation. The programme is built around the following
deadlines and milestones set out in the Regulations:

° June 2006 - Classification systems, Programme of Monitoring,
Timetable and Work Programme for the production of river Basin
Management Plans (RBMPS).

° December 2006 - Programme of Monitoring to be made
operational.

. June 2007 — Overview of the significant water management
issues in River Basin Districts (for the purpose of public information
and consultation).

. June 2008 - Draft RBMPs.

. June 2009 - RBMPs incorporating Environmental Objectives
and Programmes of Measures.

Pollution Reduction Programmes
As indicated in my correspondence of 24 November my authorities will

establish pollution reduction programmes in respect of all dangerous
substances of relevance in an Irish context (including all such substances
derived from the industrial sector).

National Dangerous Substances Screening Monitoring Programme
A National Dangerous Substances Expert Group was established in 2003

to design a comprehensive substances screening monitoring programme
as part of the implementation of the Water Framework Directive and to
assist with developing lists of priority action pollutants, candidate relevant
pollutants and candidate general components for surface waters. Under
the National Dangerous Substances Screening Monitoring Programme
which commenced in May 2005 the relevance of all the candidate
parameters is being tested and data is being provided towards the further
requirements to establish Environmental Quality Standards (EOS) for Irish
waters. Details of the programme are set out in the attached document
entitled ‘Discussion Document — Rationale for Deriving National Priority
Action, Candidate Relevant Pollutant and Candidate General Component
Substances Lists for Surface Waters’. The programme involves water
quality monitoring of both ground and surface waters, including saline and
freshwater, tissue and sediment.

This programme incorporates sites downstream of major towns, sites
associated with agriculture, mining and forestry activities and rural
households, some groundwater sites and two discharge effluent sites (a
total of 23 sites). The laboratory of TNO Environment and Geosciences in
The Netherlands is providing the laboratory services in support of the
programme. The programme will establish the relevance (or otherwise) of
more than 200 substances in Irish waters. The results of the first phase of
the programme are currently being assessed and refinements to the
screening programme will be made where necessary. The programme will
be completed by end 2006, at which stage my authorities will submit to the
Commission a comprehensive report on the findings of the programme and
their proposals and timelines for necessary actions.

National Survey of Dangerous Substances Usage
The National Survey of Dangerous Substances Usage, which commenced

in December 2005 and will conclude in May 2007 will complement the “top
down” National Dangerous Substances Screening Monitoring Programme
(described above). It consists of a "bottom up” approach, which will identify
the occurrence and sources of dangerous substances. In addition decision
support tools are being developed to assist the future permitting of
discharges.

Further information on both the National Dangerous Substances Screening
Monitoring Programme and the National Survey of Dangerous Substances
Usage is set out in attached paper titled ‘The Water Framework Directive
and the Dangerous Substances Directive — Work programme for

developing classification schemes in Ireland including water quality
standards for dangerous substances”.

Dangerous Substances Reqgulations
As stated in my correspondence of 24 November 2005 my authorities note

that the Court was unable to consider the Water Quality (Dangerous
Substances) Regulations, 2001 (S.l. 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 witn Commission officials which took place on 15
September 2005, my authorities would wish to discuss with the
Commission at the earliest opportunity the conformity (or otherwise) of
these Regulations with the requirements of Council Directive 76/464/EEC.

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.

3. Breach of Article 7(2) ofthe Directive

Ongoing consultation within the Department of the Environment, Heritage
and Local Government and with the Department of Agriculture and Food, the
Department of Communications, Marine and Natural Resources and the
Environmental Protection Agency has continued so as to arrive at and
implement appropriate solutions. The current state of play in relation to the
various aspects under this heading is set out in the following paragraphs.

Marine / Aquaculture Installations
The judgment states in relation to the Foreshore Acts, at paragraph 71, that

those Acts do not expressiy require emission standards to be set on the
basis of quality objectives, and that this amounts to a breach of the
obligations deriving from Article 7(2) ofthe Directive.

lt appears, therefore, and notwithstanding the broad power of the Minister for
Communications, Marine and Natural Resources to attach conditions to
foreshore leases or licences, that it will be necessary to amend the
Foreshore Acts to provide specifically for the attachment to leases or
licences of emission standards, determined on the basis of quality
objectives. Subject to legal advice, the Department of Communications,
Marine and Natural Resources would see this being done by way of
Regulations under the European Communities Acts. The aim is to have the
necessary provisions in place by end October 2006.

Although the judgment does not specifically advert to legal deficiencies in
the legal framework governing marine aquaculture installations, it appears
that action will be necessary on that front also. While section 7(3) of the
Fisheries (Amendment) Act 1997 provides that conditions for the control of
discharges may be attached to aquaculture licences, there is no specific

reference to the setting of emission standards by reference to quality
objectives. The Department of Communications, Marine and Natural
Resources would see the necessary changes in this regard being made in
conjunction with the envisaged changes to the Foreshore Acts.

Sanitary Authority Installations
My authorities acknowledge that Ireland does not have the necessary

authorisation system in place for sanitary authority water and waste water
facilities that satisfies the requirements of Directive 76/464/EEC. My
authorities therefore propose to introduce a licensing scheme to meet the
requirements of the Directive so that all discharges liable to contain a ‘List II
substance will be subject to authorisation. It is my authorities’ intention in this
regard, to bring forward proposals for the licensing of local authority
discharges from waste water treatment plants The new licensing regime will
provide for the introduction by Regulations of a single national authorisation
regime for discharges from local authority waste water treatment plants. It is
in addition proposed to establish general binding rules in respect of storm
overflows.

My authorities are advised by the Environmental Protection Agency that ‘List
I’ substances are no longer a general feature of discharges from water
treatment plants and that the provision of Regulations for the licensing of
such discharges may not be required. My authorities have asked the Agency
to review this matter and to provide supporting information in this regard. My
authorities would propose to discuss the proposed licensing of water
treatment plant discharges with the Commission once this information is
received.

The licensing of waste water discharges will be operated by the "competent
authority" in accordance with stated quality objectives, appropriate emission
standards, the full range of likely ‘List Il” pollutants and other site-specific
requirements such as the relevant water-use designations together with
standards already established under other Council Directives. It is envisaged
that the authorisation system will have as its main focus the determination of
emission standards at all major discharge locations, taking into account
water quality targets established for the site, and any particular needs arising
due to the presence of ‘protected areas’ e.g. nature conservation sites,
bathing waters, shellfish waters etc.

The licensing Regulations will address discharges to both fresh and marine
waters thus providing consistency in application across the State and in
particular ensuring that all relevant water quality issues will be given due and
independent consideration. This approach will also provide the necessary
enforcement mechanism to ensure monitoring and compliance in relation to
discharge standards. The licensing Regulations will provide for appropriate
interaction with existing consent systems under, for example, the Foreshore
Acts 1933-1988 and the Planning and Development Act, 2000.

My authorities propose, subject to further consultation and agreement, that
the licensing regime will be administered by a single competent authority

and that this role will fall to the Environmental Protection Agency. My
authorities consider that section 59(5) of the Environmental Protection
Agency Act, 1992 will provide the legal basis for the proposed approach and
will consolidate and strengthen the position of the Environmental Protection
Agency as the national environmental regulatory agency.

The authorisation system will complement the measures recently put in
place for the prevention of odour and noise at waste water treatment plants.
The proposed approach will also complement the general provisions of the
Water Services Bill such as the enhanced powers provided for water
services authorities in the Bill, and the obligation on authorities to take a
more strategie approach to the planning and delivery of waste water
infrastructure.

It is difficult to set a firm timeframe for the finalisation of the Regulations
given their complexity, the possible need as outlined, for the modification of
primary legislation, the extensive consultation that will be required and the
range of bodies that will be participating in the consultative process.

My authorities are however advancing with the drafting of the Regulations for
the licensing of sanitary authority discharges from waste water treatment
plants and will follow this with the preparation of general binding rules in
respect of storm water overflows.

To ensure satisfactory implementation of the Regulations in due course, my
authorities will in particular need to reach agreement with the Environmental
Protection Agency as implementing authority on the proposals to be included
in the Regulations. Initial discussions have taken place with the Agency in
this regard and my authorities envisage that the initial draft of the
Regulations will be available for consultation purposes with the Agency in
July 2006.

Aerial Spraying of Forestry
Afforestation and forest operations may give rise to nutrient release at

different stages during the forest cycle, including initial and subsequent
fertilisation. In cases where access is difficult, aerial fertilisation may be the
only viable option.

The potential impact on receptor waterbodies will depend on factors such as
tree species, soil type, inherent soil P status, slope and runoff, weather
conditions at the time of operation, vegetation and the presence of buffer
zones. Soil type is critically important.

The Department of the Environment, Heritage and Local Government is
currently funding a major Forest and Water Project initiated though the
Western River Basin District. The overall objective of the project is to
assess the potential impact of afforestation and forest operations on water
quality and to develop a methodology (technical basis) to allow further
characterisation at national level, and to inform and develop a suitable
programme of measures to achieve compliance with the objectives of the

Water Framework Directive.e. A major output of this project will be
development of a (Forestry) Eutrophication Impact Map based on soil type
and other factors referred to above.

Details of the project are attached which have been discussed and agreed
with Forest Service. The project, when complete, will provide the necessary
rules and/or technical basis by which inter alia aerial fertilisation will be
regulated taking into account the need to comply with prescribed water
quality objectives for receptor waterbodies.

In the interim, the Forest Service of the Department of Agriculture and Food
proposes to introduce new legislation to govern the practice of aerial
fertilisation. My authorities understand that final adjustments are being
made to draft Regulations and these will be presented to the Minister for
Agriculture and Food for signing into law at the earliest possible date. It is
understood that these Aerial Fertilisation Regulations will operate on an
interim basis and will be revised on completion of the research work
currently underway as part of the Forest and Water project for the Western
River Basin District. The fieldwork concerning eutrophication is scheduled
for completion in October 2007.

The interim Regulations, referred to above, will be amended in light of this
research when it becomes available.

In relation to impact assessment, my authorities understand that the
Department of Agriculture and Food proposes to commission and fund a
programme for the appropriate monitoring of phosphorus levels in receiving
waters at selected aerial fertilization sites. The programme will take place
over a one year period initially.

Agricultural Installations
As stated in my correspondence of 24 November 2005 a key consideration

in adopting the whole territory approach under the Nitrates Directive was to
ensure that Ireland’s national Nitrates Action Programme under the Directive
would address the reduction and prevention of pollution resulting from not
only nitrogen but also phosphorus from agricultural sources.

Ireland’s Action Programme was formally submitted to tne Commission in
July 2005. The European Communities (Good Agricultural Practice for
Protection of Waters) Regulations 2005 (S.l. No. 788 of 2005) which give
legal effect to the action programme were made by the Minister for the
Environment, Heritage and Local Government on 11 December 2005 and
were formally notified to the Commission on 26 January 2006. The
Regulations generally came into force on 1 February 2006, with specific
provisions being phased in over a 3 year period. In relation to farmyard
installations and the prevention of pollution therefrom, the Regulations
require that farmyards and storage facilities are managed in such as way as
to prevent leakage of organic manures and silage effluents to ground or
other waters. In addition to the detailed management requirements for
livestock manures, all storage facilities must be structurally sound and of

adequate capacity for the holding in question (requirements are based on
stocking levels, farming system, rainfall, etc).

Part 3 of the Regulations deals with nutrient management planning and is
based on the long-standing advice of Teagasc (Ireland’s agricultural
research and advisory authority). Subsequent to the making of the
Regulations in December 2005, Teagasc indicated that it may be possible to
review part of this advice in a way which could improve the effectiveness of
the Regulations. My authorities secured agreement with the European
Commission that there was merit in allowing time for this advice to be
elaborated. To this end, my authorities announced a temporary de facto
deferral of Part 3 of the Regulations.

A copy of the Teagasc advice was received by my authorities on 3 March
2006 and this, together with key additional information and research data
subsequently submitted, has been the subject of detailed consideration. A
copy of the Teagasc advice was made available to the Commission and a
meeting was held with the Commission on 22 March 2006, attended by
officials from the Department of the Environment, Heritage and Local
Government and Food and Teagasc.

On 18 May 2006 my authorities submitted proposals for amendment to the
European Communities (Good Agricultural Practice for Protection of Waters)
Regulations 2005 to the Commission for consideration. A meeting with the
Commission in the matter took place on 30 May 2006. The additional
information sought by the Commission at that meeting is being compiled and
will be submitted by my authorities very shortly.

As part of the implementation process, a handbook for farmers that clearly
explains the requirements and obligations imposed by the Nitrates
Regulations is being finalised and will be made available to all farmers
following the making of amending Regulations.

The issues under this head raised by the Commission at the 15 September
2005 informal meeting with officials from the Department of the Environment,
Heritage and Local Government have been discussed with the Department
of Agriculture and Food. That Department is of the view that the Nitrates
Regulations offer adequate protection for waters on a national scale. The
Department of Agriculture and Food is also of the view that any suggestion
of further mandatory measures for the protection of water quality (prior even
to these Regulations being finalised in full) would prejudice the successful
implementation of the Regulations and undermine the considerable effort
that has gone into persuading Irish farmers, farm organisations and other
stakeholders of their relevance and necessity.

The Department of Agriculture and Food considers, however, that the
Nitrates Regulations could usefully be supplemented by voluntary measures
forming part of Ireland’s Rural Development Programme 2007-2013, to be
introduced under Council Regulation (EC) No 1698/2005 of 20 September
2005 on support for rural development by the European Agricultural Fund for

Rural Development (EAFRD). This Programme is currently being prepared
in consultation with the Department of the Environment, Heritage and Local
Government, the Department of Community, Rural and Gaeltacht Affairs and
other stakeholders and it is intended to submit the draft Programme to the
European Commission for approval in or around September 2006.

It will also be open to local authorities and other agencies, in the context of
implementation of the Water Framework Directive, to consider what
additional measures might be necessary to address specific water quality
problems in particular areas.

It is the view of both Departments that it would be useful for the Departments
to meet with the Commission at an early opportunity to explore the issues
further.

4. Breach of Article 9 of the Directive

As indicated in my correspondence of 24 November 2005 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. As discussed with the Commission my authorities would wish
to meet with tne Commission in the matter at the proposed package meeting
in Dublin in July 2006.

Yours sincerely,

? v
Environment Counsellor

cc  s Environment)