Mi, Minus

COMMISSION DES COMMUNAUTES EUROPEENNES

SECRETARIAT GENERAL Bruxelles, 21 janvier 1993

s6 (92) D/19207

 

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INFRACTION /  IRLANDE 0015220, 1 N o
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Application de directives communautaires dans le domaine de | "'environnemert

 

= substances dangereuses - eau potable/de baignade - &tude "impact" -

Mise en demeure de la Commission, notifide le 23 d&cembre 1992

 

Document diffuse A la Commission pour information.

Decision d'envoi de la lettre de mise en demeure,
au titre de L’article 169 CEE,
prise par la Commission le 20 novembre 1991 (cf. COM(91) PV 1083).

 

Destinataires : les Membres de la Commission

Te in

[—

COMMISSION
OF THE EUROPEAN
COMMUNITIES Brussels, 2
SG(92) D/ 1@ > 0 7

90/5220

Sir,

I would like to draw your attention to the implementation by Ireland of
Directives 76/464/EEC on pollution caused by certain dangerous substances
discharged into the aquatic environment of the Community ("the Dangerous
Substances Directive"), 75/440/EEC concerning the quality required of
surface water intended for the abstraction of drinking water in the Member
States ("the Surface Water Directive"), 76/160/EEC concerning the quality
of bathing water ("the Bathing Water Directive") and 85/337/EEC on
assessment of the effects of certain public and private projects on the
environment ("the Impact Assessment Directive").

A. INTRODUCTION

l, The contents of this letter relate to four complaints. Each
complaint is dealt with separately by reference to the Directive or
Directives it concerns. However, the main purpose is to address
underlying legal and implementation issues of a general nature.

B. COMPLAINT CONCERNING LOUGH_DERG

2. On 12 October 1991, the Commission registered a complaint against

Ireland under No 1220/90 concerning the pollution of Lough Derg, part
of the system of the River Shannon. The complainant claimed that:

Minister for Foreign Affairs
St. Stephen’'s Green, 80

IRL - DUBLIN 2

Rue de la Loi 200 - B-104B Brussels - Belgium

Telephone: direct line 23....... exchange 235.11.11 - Telex COMEU 8 21877 - Telegraphic sddress COMEUR Brussels - Telafsx ra

- it is no longer possible to bathe in Lough Derg at Mountshannon,
County Clare because of water pollution, caused by uncontrolled
run-off from farms in the area and discharges from motor
cruisers;

- there previously existed a popular bathing water at Mountshannon,
used by both locals and tourists, with classes held by the
National Water Safety Council.

By letter of 18 December 1991, the Commission brought the allegations
contained in the complaint to the attention of the Irish authorities,
requesting comments and observations and

> an indication of the account taken of the Bathing Water
Directive, the Dangerous Substances Directive and the Surface
Water Directive, as well as Directive 78/659/EEC on the quality
of fresh waters needing protection or improvement in order to
support fish life ("the Fishwater Directive");

- given that there was apparently not a single inland water amongst
the 64 bathing waters in Ireland to which the provisions of the
Bathing Water Directive were applied, an indication of whether or
not the Irish authorities systematically and periodically examine
Irish inland waters to see if any fulfil the definition of
"bathing water" in the Directive, and, if not, an indication of
how respect for the Directive in regard to such waters was
assured.:

The response of the Irish authorities, sent on 4 March 1991, inter

alia,

- pointed to a lowering of water quality in the lake between the
1970s and 1990, as evidenced by the results of various surveys:
specifically, by 1990 it had been concluded that the lake was
eutrophic, probably due to an increase in phosphate
concentrations on the lake - otherwise the water quality was
satisfactory;

- drew attention to a range of positive measures already taken or
planned to protect the lake, including farm surveys, improved
sewage treatment, installation of pump-out facilities for
pleasure craft, and further investigations of water quality;

- indicated that the Shannon was not a designated fishwater under
the Fishwater Directive, but that the water quality standards in
the draft water quality management plan for Lough Derg have been
derived from that Directive - as regards progress in relation to
further designations, this is influenced by the extent to which
additonal resources can be made available by local authorities to
implement the monitoring regime and the other obligations
specified in the Directive;

- indicating that bathing is not traditionally practised by large

numbers of bathers at inland locations, with the following
factors cited - colder temperatures, availability of indoor
heated swimming pools and the possibility and popularity of trips
to coastal bathing areas;

- pointing out that local authorities bordering the lake have had
regard to the implementation of the Dangerous Substances
Directive in the implementation of their statutory functions
under the Local Government (Water Pollution) Acts 1977 and 1990.
No List I discharges have been identified. As regards List II
substances, detailed investigations are about to commence to
determine more precisely the impact of the phosphorus reaching
the lake, its sources and such remedial measures as may be
appropriate. The strategies adopted by the local authorities in
the light of these investigations will complement the range of
measures already taken to deal with pollution risks, including
phosphorus inputs from farms and sewage inputs to the lake from
municipal discharges and pleasure craft.

In sending the present letter, the Commission in no way wishes to
detract from the several positive initiatives taken in regard to
Lough Derg, and indeed fully supports these. It seeks rather to
highlight a number of longstanding legislative weaknesses in the
Irish system transposing the Dangerous Substances Directive.
Correcting these weaknesses should reinforce and complement measures
such as those underway in Lough Derg. As regards the Fishwater
Directive, the Commission would merely make the observation that it
should be possible to coordinate monitoring functions under different
Community Directives so as to maximize the effect of available
resources; if it forms an integral part of a well-functioning
pollution control system, monitoring should bring benefits
outweighing the costs involved, especially where waters are an
important economic resource. The Bathing Water Directive is not
dealt with in detail so far as this complaint is concerned, the
information being too scant. However, questions of general
implementation of this Directive are covered elsewhere in the letter.

Article 7 of the Dangerous Substances Directive provides as follows:

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

2. All discharges into the waters referred to in Article 1 which are
liable to contain any of the substances within List II shall
require prior authorization 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.

3. 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.

4. The programmes may also include specific provisions governing the
composition and use of substances Or groups of substances and
products and shall take into account the latest economically
feasible technical developments.

5. The programmes shall set deadlines for their implementation.

6. Summaries of the progranmes and the results of their
implementation shall be communicated to the Commission.

7. The Commission, together with the Member States, shall arrange
for regular comparisons of the programmes in order to ensure
sufficient coordination in their implementation. If it sees fit,
it shall submit relevant proposals to the Council to this end."

By a letter of 5 June 1978, Ireland informed the Commission that the
licensing activities of local authorities under the Local Government
(Water Pollution) Act 1977 would form the nucleus of programmes for
the reduction of pollution from List II substances. By a letter of
24 August 1983, the Irish Department of the Environment reaffirmed
Ireland's position with regard to Article 7. It indicated that it
had advised local authorities who are required to license discharges
"to set quality objectives for List II substances on the basis of
recommendations of a technical committee on effluent and water
quality standards". Furthermore, it had advised them to draft water
quality management plans which would include quality objectives based
on water use.

It seems evident that Ireland largely relies on the provisions of the
said Water Pollution Act 1977 to implement Article 7. The Act has
now been updated by the Local Government (Water Pollution)
{Amendment) Act 1990. While the Commission recognizes that together
these constitute an extensive legal framework for combatting water
pollution, it nevertheless considers that the framework does not
adequately cover the programme-making requirements of Article 7 for
the reasons given below.

There are a number of general points to be noted about Article 7.

(a) Programme-making is a mandatory not an optional function (use of
"shall" in Article 7(1).

(b) The purpose of programmes is to reduce "pollution", which is
defined in Article 1 of the Directive as meaning "the discharge
by man, directly or indirectly, of substances or energy into the
aquatic environment the results of which are such as to cause
hazards to human health, harm to living resouces and to aquatic
ecosystems, damage to amenities or interference with other
legitimate uses of water". One of the significant features in
this definition is the reference to "harm to living resources and
aquatic ecosystems". This implies that programmes under
Article 7 are not just to protect waters for human health,
economic or recreational reasons, but also to protect the role
waters serve as natural environments and life support systems.
It also implies that pollution-reduction programmes need to be
tailored to the needs of particular, waters, since "aquatic
ecosystems" embraces a diversity of conditions and circumstances.

(c) The field of application of Article 7 is potentially very wide,
extending as it does to the waters referred to in Article 1, i.e.
inland surface water, territorial waters, and internal coastal
waters (groundwater is now treated separately under the
Groundwater Directive).

10.

(d) There is a mandatory and discretionary content to pollution-
reduction programmes. The mandatory content embraces quality
objectives (Article 7(2) and 7(3), emission standards and
authorizations (Article 7(2) and implementation deadlines
(Article 7(5)). The fact that there must be deadlines and that
implementation results have to be communicated to the Commission
(Article 7(6) implies that programmes are an on-going exercise,
requiring monitoring to determine whether or not quality
objectives have been met and if not why not. This in turn
implies controls to check if authorizations are respected. As
regards the discretionary content of programmes, Article 7(4)
leaves it open to Member States to provide for additional
elements.

(e) If programmes are not to be a wasted exercise, they must be
founded on an adequate base of empirical knowledge, i.e. Member
States must be equipped with a satisfactory knowledge of the
conditions and sensitivities of the different waters covered, the
purposes which these waters serve (living resources, aquatic
ecosystems, amenities and other legitimate uses), and the threats
and potential threats to these waters having regard to the
definition of "pollution".

The Water Pollution Act 1977 as amended contains in Section 15 a
provision for water quality management plans. Section 15 is an
unsatisfactory transposition of provisions in Article 7 for a number
of reasons.

(a) Section 15 allows local authorities (in the Irish system, these
have chief responsibility for combatting water pollution) to
treat the making of water quality management plans as an optional
function (use of "may" in Section 15(1)). It is true that the
Irish Minister for the Environment has a power to direct the
making of such plans (again Section 15(1)) but he does not appear
to have ever exercised it. In practice, Section 15 seems to have
had a limited impact, with the Irish Department of the
Environment reporting in its Water and Sanitary Services
programme for 1989-93 that, while preparation of water quality
management plans for most of the major river catchments and for
some important estuaries and bays is now well advanced, "the rate
at which these plans have been adopted by local authorities has
been slower than anticipated." The programme confirms that only
seven plans have been adopted, although it adds that "local
authorities are being pressed to complete and adopt plans as
quickly as possible".

(b) A water quality management plan "shall contain such objectives
for the prevention and abatement of pollution of the waters the
subject of the plan and such other provisions as appear to the
local authority to be necessary" (Section 15(2)). However,
"pollution" is not defined in the Irish legislation. The
definition of the closest term, "polluting matter", suggests a
narrower meaning of "pollution" is intended than that set out in
Article 1 of the Directive, since "polluting matter" is not
linked to aquatic ecosystems in the broadest sense but to limited
aspects of such ecosystems, i.e. fish and the food of fish. This
in turn suggests that water quality management plans may have too
narrow a focus, leaving >ut functions of water which are not of
direct human benefit or interest. In contrast, pollution

1l.

12.

reduction programmes under Article 7 must, by virtue of the
definition of "pollution" already mentioned, be considered as
having to address wider effects on aquatic ecosystems, including
lifeforms other than fish or the food of fish.

(c) There does not seem to be any provision for deadlines for the
implementation of objectives contained in water quality
management plans.

(d) Although water quality management plans may be revised or
replaced from time to time, there appears to be no provision for
assessing their results.

The Commission recognizes that water quality management plans are not
to be seen in isolation. Under Section 26 of the Water Pollution Act
1977, the Minister for the Environment has a power to prescribe
quality standards for waters. In theory, such standards could
ceonstitute "quality objectives" within the meaning of Article 7, and
so supplement or complement water quality management plans. In
practice, however, no such standards appear to have been prescribed.
There are also a wide range of possibilities in the Water Pollution
Acts for controlling direct and indirect discharges, including
licensing provisions in Section 4 of the Water Pollution Act 1977.
The Commission has looked at the latter to determine whether or not
they give effect to the authorization provisions of Article 7. In
the system of Article 7 the emission standards attached to
authorizations are to to be based on quality objectives. Section 4
is weak in this regard. Licences must respect Section 26 standards,
but as has already been noted, no such standards appear to exist.
The licence-granting process must also have regard to the objectives
contained in any relevant water quality management plan, but again,
as has already been noted, such plans seem to be more the exception
than the rule. In any case, the objectives contained in them may not
necessarily equate to quality objectives within the meaning of
Article 7. Furthermore, even where a water quality management plan
containing quality objectives exists, it would still seem to ke
possible to licence discharges which would contravene the objectives.
It is true that Section 4(5) gives a discretion to local authorities
to attach licence conditions reflecting a wide range of factors.
Stringently applied, this may go some ways towards meeting the
purpose of Article 7. However, the case of the proposed Ballyhealy
fish farm mentioned in this letter suggest that there may be
inadequacies in regard to licence-framing, especially so far as
toxic, persistent and bioaccumulable substances are concerned (see
points 38-42).

of particular note is the fact that discharges from sewers (which
term is defined in the Irish legislation so as to include sewage
treatment and disposal works vested in or controlled by a sanitary
authority) are not subject to the licensing provisions of Section 4.
As far as discharges from sewage treatment plants are concerned
Directive 91/271/EEC provides detailed requirements for the pollutant
content of such discharges as well as a date at which these
requiremnts must be complied with. However, as concerns overflows,
this Directive does not provide detailed requirements and the
requirements of the Dangerous Substances Directive apply fully to
significant discahrges from the overflows. Article 7 of the latter
Directive therefore applies fully reqiring licence for such

13.

14.

15.

overflows. Although the former Directive is not yet in force, its
provisions are obviously relevant to any action and investments now
contemplated on sewage treatment, and the Commission would welcome
any submission which the Irish authorities may wish to make in this
regard.

The structure envisaged by Article 7 is therefore imperfectly
reflected in the Irish legislation. The case of Lough Derg
illustrates how these imperfections manifest themselves in practice.
The Commission considers it to be a significant case in as much as
it relates to one of the central water management problems in Ireland
today - nutrient pollution.

It is admitted that by the summer of 1990, Lough Derg was "eutrophic"
within the OECD classification system. This indicates that there was
pollution within the meaning of the Dangerous Substances Directive.
Furthermore, there seems little doubt but that this pollution is
critically linked to at least one List II substance, i.e. phosphorus.
The evidence also suggests that there has been a long-term decline in
water quality since baseline data was collected in the latter part of
the 1970s. In such a context, an Article 7 programme should entail
fact-finding to determine the sources and extent of pollution, the
fixing of quality objectives, and a concertation of efforts in order
to meet these objectives. It is true that, in the absence of
relevant Community standards, Member States have a wide discretion in
laying down quality objectives. However, due account must be taken
of Article 9 of the Dangerous Substances Directive which states:

"The application of the measures taken pursuant to this Directive may
on no account lead, either directly or indirectly, to increased
pollution of the waters referred to in Article 1".

One of the implications of this standstill provision is that Member
States are not entitled to lay down quality objectives which have the
effect of tolerating pollution increases.

Apart from the laying down of quality objectives, an Article 7
programme would require a deadline to be fixed for meeting the
quality objectives.

The downward trend in Lough Derg's water quality is exactly the
opposite of what might have been expected had Article 7 been
properly implemented since the 19705. The action taken to date and
the action underway appears to fall short of that required under
Article 7 in a number of respects. It is of positive note that there
has already been some factfinding in respect of the lake and its
problems, and that a programme of research is intended. This should
help to lay a proper basis for measures under Article 7. However, it
is unsatisfactory that it has taken so long to reach this stage, and
there must be some concern at the lack of a timetable for the future
programme of research. As yet there is no quality objective for
phosphorus for the lake, and there is no indication as to when or in
what manner a quality objective is likely to be established. It is
noted that a draft water quality management plan exists for the lower
Shannon. However, this has apparently existed as a draft for some
years, and there is no indication as to when, if ever, the
responsible local authorities will adopt it (they are under no legal
duty to do so). As regards authorizations, lccal authority sewage
discharges

16.

17.

18.

which contribute to the phosphorus problem are exempt from licensing,
as has already been noted. The Commission also understands that the
discharge of humic material from areas subject to peat extraction is
not subject to any authorization requirements (the Commission would
welcome clarification on this). Even where authorizations are
required, the absence of a quality objective for phosphorus means
that relevant emission standards lack a focus on a higher goal.
Overall, the missing elements mean that a proper integrated approach
has yet to become apparent.

Although the said letter of 4 March 1991 indicates that Portumna is
the only public water supply scheme using Lough Derg as its source,
and that the water category is designated as Al, it is noted that the
attached comments on 1990 Lough Derg water quality results include
the following remarks:

"At most locations throughout the lake the pH and colour results are
in the A2 category (i.e. requiring normal physical treatment,
chemical treatment and disinfection) as established by EC (Quality of
Surface Water Intended for the Abstraction of Drinking Water)
Regulations, 1989. Total phosphorous results for three stations are
also in the A2 category. All other results are in the Al category
(i.e. requiring simple physical treatment and disinfection)." The
latter remarks suggest that, so far as the Surface Water Directive is
concerned, there may be a need to prepare an improvement plan in
respect of phosphorus ( Article 4(2) of the Surface Water Directive).
The Commission would welcome further information on this point from
the Irish authorities.

COMPLAINT CONCERNING SUTTON BEACH

On 25 July 1990, the Commission registered a complaint against
Ireland under No 1031/90 concerning Sutton Beach, in County Dublin (a
recognized bathing water within the meaning of the Bathing Water
Directive). The complainant, inter alia, complained that water
quality was deteriorating due to pollution, caused chiefly by the
Howth sewage outfall, serving more than 300 000 population
equivalent.

On 17 August 1990, the Commission brought the allegations in the
complaint to the attention of the Irish authorities, requesting,
inter alia, comments together with:

- an indication of the account taken of Articles 6(3) (local
investigation) and 6(4) (additional sampling) of the Bathing
Water Directive, especially as regards the Howth outfall;

- an indication of the account taken of Article 7 of the Dangerous
Substances Directive in respect of the waters affected by the
Howth outfall (i.e. establishment of pollution-reduction
programme, prior authorization, emission standards, quality
objectives).

19.

20,

21.

On 21 January 1991, the Irish authorities responded, inter alia,

- pointing out that water quality at Sutton beach was generally
good, with low median values for the bacteriological parameters
the norm;

- recognizing an occasional problem of high readings for
bacteriological parameters at the beach;

- attributing high readings not to the Howth sewage outfall itself
but to periodic discharges through overflows - and in particular
the emergency overflow pipe at the screening arrangement for the
North Dublin Main Drainage System which discharges at Howth.
These overflows operate at times of surcharging of the system and
particularly during periods of high rainfall;

- emphasizing that a major improvement programme covering both the
outfall and its associated overflow is being actively prepared as
part of their commitment to eliminate untreated discharges of
sewage from major coastal towns by the year 2000. Howth has been
identified as a priority location and Dublin Corporation is in
the process of appointing consultants for the development of
proposals for secondary treatment at Howth. Temporary solutions
to the problems of overflow are being developed in the meantime;

- pointing out that effluent discharges to the sewage system
require licensing under the Local Government (Water Pollution)
Act 1977, and that, in the present case, licences are issued by
Dublin County Council or Dublin Corporation and they contain
emission standards which, inter alia, take account of the quality
objectives set for bathing waters in the general vicinity of the
Howth outfall.

The information supplied suggests that the authorities have not only
fulfilled their monitoring role under the Bathing Water Directive,
but have also fulfilled the important complementary role of
identifying sources and potential sources of pollution. Furthermore,
there also seems to be a follow-up in terms of practical action.

The purpose of mentioning the complaint about Sutton beach is that it
provides a further good illustration of the Irish legislative
position in regard to the Dangerous Substances Directive, already
discussed in more detail above. The population served by the Howth
outfall makes it one of the most important in Ireland, and the
evidence is that the associated overflow can cause pollution within
the meaning of the Dangerous Substances Directive (which embraces the
following substances which could arise from the overflow:
"gubstances which have an adverse effect on the oxygen balance,
particularly: ammonia, nitrites.") Applied in this case, Article 7
would require an authorization for discharges from the sewage system
overflows fixing emission standards based on quality objectives. The
quality objectives would, inter alia, have to be compatible with the
standards of the Bathing Water Directive. However, the actual
position is that there is no authorization of the overflows (because,
while certain discharges to a sewer system are licensible, all
discharges from such a system are exempt under the Water Pollution
Acts), no emission standards (because there is no authorization and
no generally applicable standards), and no quality objectives (water