En EUROPEAN COMMISSION
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Fe :
Brussels, 03 -10- 1996
sw 8634
90/5220
Sir,

I would like to draw your attention to the implementation by Ireland of Articles 7 and
9 of Directive 76/464/EEC on pollution caused by certain dangerous substances
discharged into the aquatic environment of the Community ("the Directive").

(1) Articles 7 and 9

Article 7 of the Directive requires Member States to establish programmes to
reduce pollution from substances within List U of the Directive. List II is set out
in the Annex to the Directive.

Article 9 of the Directive provides that the application of the measures taken
pursuant to the Directive may on no account lead, either directly or indirectly, to
increased pollution of the waters covered by the Directive. This provision enshrines.
a "stand still" principle, i.e. a principle that implementation of the Directive should
not worsen water pollution.

(2) Scope of the present letter of formal notice

The Commission has already opened a number of infringement procedures against
Ireland in respect of the Directive, and in particular Article 7.

Procedure A/90/0961 relates to Ireland's failure to establish programmes for
99 substances (letter of formal notice SG(91) D/3384 notified on
20 February 1991).

Procedure 94/4274 relates to Ireland's failure to implement Article 7 in relation to
marine salmon farms (letter of formal notice SG(96) D/2223 notified on
14 February 1996).

Tänaiste and
Minister for Foreign Affairs
St Stephen's Green, 80

 

IRL - DUBLIN 2

Rue de la Loi 200, B-1049 Bruxelles/Wetstraat 200, B-1049 Brussel - Belgium - Office:
Telephone: direct line (+32-2)29......., exchange 299. 11.11. Fax: 29.......
Telex: COMEU B 21877. Telegraphic address: COMEUR Brussels.

(3)

M

The present procedure relates to additional failures by Ireland in respect of Article 7
(as well as Article 9), in particular the general failure to establish pollution
reduction programmes, deficiencies in Ireland's provisions for discharge
authorization, emission standards and quality objectives, and the development and
worsening of phosphorous pollution. The present letter of formal notice is intended
to draw attention to and clarify several aspects of these failures. It supplements
letter of formal notice SG(92) D/19207 notified on 21 January 1993.

Failure by Ireland to establish programmes and to communicate programme
summaries and implementation results

Contrary to Article 7(1), Ireland has failed to establish programmes in accordance
with the Directive for all substances comprised in List II of the Directive.

In a letter of 14 June 1996, the Irish Permanent Representation argued that, apart
from phosphorous which is responsible for the eutrophication of Irish surface waters
(see section 4 of this letter), pollution by List II substances is not a feature of
Irish waters, and that, in these circumstances, formal programmes under Article 7
to reduce pollution by such substances are not considered to be warranted under the
conditions obtaining in Ireland at present.

The Commission does not accept the argument that Ireland is not obliged to
establish pollution reduction programmes under Article 7. The Irish argument
apparently rests on an interpretation of Article 7 whereby pollution must be present
before pollution reduction programmes are required. However, Community
environmental policy is founded on the precautionary principle and on the principles
that preventive action should be taken, and that environmental damage should as
a priority be rectified at source. The interpretation implicit in Ireland's argument
runs contrary to these principles. The programmes required under Article 7 clearly
have a preventive content. For example, the required system of discharge
authorizations with emission standards (Article 7(2)) is preventive in as much as it
imposes conditions on future discharges. In addition, this system applies to all
discharges liable to contain any of the substances within List II, ı.e. it is not
confined to discharges which äre actually causing pollution by List II substances.
The interpretation implicit in Ireland's argument also runs contrary to Article 9 of
the Directive, in as much as it may lead directly or indirectly to increased pollution
through a deferment of action until problems have manifested themselves. The
problems Ireland is currently experiencing with phosphorous illustrate this
(see section 4 of this letter).

The Commission would also take issue with Ireland's assertion that pollution by
List II substances is not a feature of Irish waters. This assertion is not based on
comprehensive, authoritative evidence in relation to all List II substances and all
of Ireland's territory over the period since the Directive was adopted. Nor is the
assertion consistent with the evidence that is available. By way of illustration, the
official report "Water Quality in Ireland 1987-1990" points to examples of
pollution other than phosphorous pollution, for example it notes heavy
contamination with heavy metals in Dungarvan Harbour, and the carrying of
significant lead contamination to the Suir Estuary.

While arguing that it is not formally required to establish pollution reduction
programmes other than for phosphorous, the Irish authorities point out that they

are pursuing measures aimed at the prevention of pollution by List II
substances generally.

Water Quality in Ireland, Environmental Research Unit, 1992, ISBN 1 85053 180 3.

2

(4)

The Commission welcomes these measures, but does not accept that Ireland is free
not to establish pollution reduction programmes under Article 7.

In so far as Ireland may purport to have established programmes for all or any
substances comprised in List II of the Directive (Ireland has referred to a
programme of measures in relation to phosphorous), the Commission would contend
that it has not established programmes within the meaning of the Directive
(for example, quality objectives are absent).

Contrary to Article 7(5), Ireland has failed to set deadlines for the implementation
of programmes for all List II substances.

Contrary to Article 7(6), it has failed to communicate to the European Commission
summaries of programmes for all List II substances and the results of
their implementation.

Failures by Ireland with regard to mandatory implementation methods

Article 7(1) provides that, in the implementation of programmes for List II
substances, Member States shall apply in particular the methods referred to in
Article 7(2) and (3). The Commission would contend that Ireland does not respect
this provision.

In particular, in so far as Ireland may argue that it applies these methods, the
Commission would contend that it does not do so in the implementation of
programmes, since it has not established programmes in accordance with the
Directive (as noted above, Ireland does not accept that it has a legal obligation to
establish programmes except in the case of phosphorous).

Furthermore, in so far as it may be argued that these methods are applied in
Ireland, the Commission would contend that they are not applied to the extent
required by the Directive, owing to the following deficiencies.

Authorization system

Article 7(2) provides that all discharges which are liable to contain List II
substances shall require prior authorization by the competent authority of the
Member State.

Ireland has referred the Commission to two systems of authorization which are used
to give effect to Article 7(2). The first is authorization of discharges to water
pursuant to the Local Government (Water Pollution) Act, 1977. The second is
authorization (in particular, integrated pollution control licensing) pursuant to the
Environmental Protection Agency Act, 1992. The latter system of authorization
applies to a number of specified activities.

However, these two systems fail to cover all the discharges which are encompassed
by the Directive.

In particular, while Section 4(1) of the 1977 Act creates a general obligation to
discharge only on foot of a licence, Section 4(2) provides that this general
obligation shall not apply to discharges:

(i) to tidal waters from marine structures;

(ii) from a sewer; or

2)

(iii) the subject of a ministerial exemption under Section 4(10).

These exclusions from the requirement of a discharge authorization are not
contemplated by Article 7.

- Discharges from marine structures

Infringement procedure 94/4274 relates to the failure to provide for the
authorization of discharges from marine structures, in particular marine fish
farms. It is not proposed to repeat here points already made in letter of
formal notice SG(96) D/2223 notified on 14 February 1996.

- Discharges from sewers

In so far as sewers are concerned (which term is defined in the
Irish legislation to include sewage treatment and disposal works vested in or
controlled by a sanitary authority), Ireland has adopted regulations pursuant
to the Environmental Protection Agency Act, 1992 to give effect to
Directive 91/271/EEC concerning urban waste water treatment”. However,
these regulations do not encompass discharges from all sewers.

To the extent that they do not cover discharges from all sewers, the
Irish systems of authorization fail to fully respect Article 7(2) of
the Directive.

- Power of exemption from authorization

The definition of "discharge" in Article 1(d) of the Directive contains a
number of exceptions (discharges of dredgings, operational discharges from
ships in territorial waters, dumping from ships in territorial waters). To the
extent that exemptions in national legislation from the requirement of an
authorization coincide with these exceptions, they are permissible.

However, Section 4(10) does not limit the power to grant an exemption to
these exceptions, and, while the Commission is not aware that any use has
been made of Section 4(10), it considers that its existence is incompatible
with the Directive.

Quality _objectives
Article 7(3) provides that programmes shall include quality objectives.

Under Section 26 of the Local Government (Water Pollution) Act, 1977, the
Irish Minister for the Environment has a power to prescribe water quality standards.
However, he has no duty to do so, and in practice has not adopted quality standards
for all (or to the Commission's knowledge any) List II substances.

In failing to ensure that programmes include quality objectives for all List II
substances, Ireland is in breach of Article 7(3).

Environmental Protection Agency Act, 1992 (Urban Waste Water Treatment)
Regulations, 1994.

(5)

3

(4

Emission standards

Article 7(2) provides that emission standards shall be laid down in authorizations
and that these shall be based on quality objectives.

The systems of Irish authorization mentioned above provide that discharges shall
comply with water quality standards prescribed under Section 26. However, as
noted above, quality standards have not been adopted for all (or to the
Commission’s knowledge any) List II substances.

To the extent that Ireland has failed to adopt water quality objectives, it cannot
operate a system involving emission standards based on such quality objectives. It
thereby fails to respect Article 7(2).

Increase in phosphorous pollution in Ireland

Ireland has identified eutrophication due to phosphorous inputs as the major threat
to the quality of Irish rivers and lakes. The Commission would agree that this
conclusion is consistent with the evidence available. However, it considers that
Ireland has allowed phosphorous pollution of Irish waters covered by the Directive
to develop or worsen over the period since the Directive was adopted, contrary to
the results required by Articles 7 and 9 of the Directive.

Phosphorous is a nutrient and is included in the families and groups of substances
contained in List II of the Directive ("inorganic compounds of phosphorous and
elemental phosphorous").

Eutrophication consists in the enrichment of a water body by nutrients, causing an
accelerated growth of algae and higher forms of plant life to produce an undesirabie
disturbance to the balance of organisms present in the water body and to the quality
of the water concerned“”. Phosphorous is the nutrient which contributes most to the
eutrophication of freshwaters.

To the extent that it is anthropogenic in origin, eutrophication can be considered a
form of "pollution", which is defined in Article I(e) of the Directive as:

"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 resources and to aquatic ecosystems, damage to amenities or
interference with other legitimate uses of water."

The Commission's attention has been drawn to several authoritative sources of
information which point to a problem of eutrophication linked to phosphorous in
certain Irish waters covered by the Directive.

In 1996, the Irish Environmental Protection Agency published a report on the
state of the environment in Ireland „pursuant to Section 70 of the
Environmental Protection Agency Act, 19929.

See the definition of "eutrophication" in Directive 91/271/EEC conceming urban
waste water treatment.

"State of the Environment in Ireland", edited by L. Stapleton,
Environmental Protection Agency, Wexford, February 1996 (ISBN No 1-99965-5-4).

5

6)

This report notes that both long-term (since 1971) and more recently
(since 1987-1990) there is a distinct trend of increasing levels of slight, and to a
lesser extent, moderate pollution, due largely to eutrophication.

The report notes the existence of eutrophic or highly eutrophic rivers in the east and
south, and points out that the biggest threat to the water quality of Irish lakes is
eutrophication by the nutrients phosphorous and nitrate, particularly phosphorous.

The report states that, in the period 1991-1994, the water quality of 135 lakes was
examined. The surface area of these amounted to 750 km? or 50 per cent ofthe lake
surface area of the country. The 24 lakes found to be excessively enriched included
two large lakes, i.e. Loughs Ree and Derg, which represented 38% of the surface
area of the water examined.

The State of the Environment report confirms that sewage and agriculture are the
main sources of excess phosphorous. It states that, on a national basis, much more
phosphorous than is required is being used in intensive agriculture.

Other evidence in the Commission's possession presents additional insights into the
problems of Irish water bodies resulting from the introduction of excessive amounts
of phosphorous.

For example, the Commission would refer to evidence concerning Lough Conn, a
large limestone lake (50 km?) situated in County Mayo in the west of Ireland.
Ireland's large limestone lakes (Loughs Mask, Corrib, Ennel and Owel are others)
are natural resources of international importance. A combination of factors
(climate, naturally low nutrient status owing to limestone catchments) create ideal
conditions for salmonid: fish (such as wild brown trout and char). Such lake
conditions are exceptional in Europe, and Loughs Conn together with its
neighbouring lakes, Loughs Mask and Corrib (collectively known as the
Great Western Lakes) have enjoyed an international reputation as wild brown trout
fisheries. Changes in the nutrient status of these lakes can detrimentally affect their
role as exceptional aquatic ecosystems (it may be noted that the Directive's
definition of "pollution" specifically refers to "aquatic ecosystems").

The 1991-1994 lake examination mentioned above, which was based on limited
monitoring, indicated that recent measurements (1991) pointed to some deterioration
in Lough Conn. In 1994, a multi- agency official report was published on the
nutrient or trophic status of the lake'”.

Noting evidence of eutrophication of Lough Conn (increased algal blooms, presence
of algal scums, virtual disappearance of Artic Charr, a pollution sensitive fish
species), the latter report pointed to a doubling of the amount of phosphorous being
introduced to the lake between 1982 and 1994 (i.e. during a period when the
Directive was in force). Phosphorous introduction was from several sources.
However, by far the most important was agriculture. The period 1982-1994 was
marked by a major change in agricultural practice within the catchment. In
particular, there was an increase in the winter housing of cattle, resulting in the
accumulation of large amounts of animal excrement (slurry) containing

The Trophic Status of Lough Conn, An investigation into the Causes of Recent
Accelerated Eutrophication, published by Mayo County Council in association with
Environmental Protection Agency, Central Fisheries Board, North Western Fisheries
Board, Teagasc, Bord Na Mona, Department of Agriculture and Department of
the Marine.

phosphorous. The report explained that, particularly during rainy weather
(this region has high rain fall), landspread slurry was washed into rivers and
streams in the catchment, bringing about a significant increase in the amounts of
phosphorous entering the lake.

Lough Conn thus presents a cogent example of the practical consequences of
Ireland's failure to establish a pollution reduction programme for phosphorous in
conformity with the Directive. In particular, there was not, and there still is not, in
place a phosphorous quality objective applicable to the Take. Moreover, instead of
being reduced, pollution of the lake has been allowed to develop and worsen in a
period during which the Directive was in force. This is contrary to the results
- required by Article 7. It is also inconsistent with the principle of prevention.

To the extent that Ireland may argue that it has acted in conformity with the
Directive in relation to phosphorous, the Commission would contend that, for Irish
water .bodies such as Lough Conn which have experienced a development or
worsening of pollution since the Directive entered into force, Ireland has not
respected the provisions of Article 9.of the Directive.

Conclusions

In conclusion, the Commission considers that Ireland has failed to establish programmes
for all List II substances in accordance with Article 7 of the Directive. It has also allowed
phosphorous pollution to develop or worsen in the period since the Directive was
adopted, contrary to results required by Articles 7 and 9 of the Directive.

In these circumistances, the Commission, acting under Article 169 of the EC Treaty,
would ask the Irish Government to submit its observations on the contents of this letter
within two months of receiving it.

After taking note of these observations, the Commission may, if necessary, deliver a
Reasoned Opinion under Article 169. It may also deliver a Reasoned Opinion if the
observations fail to reach it within the period stated.

Yours faithfully,
For the Commission