EU member states have raised concerns over EU proposals to expand the list of pesticides covered by water pollution controls. Discussions have revealed their reluctance to take on any additional monitoring costs in the current economic climate.
Background
Article 16 of Directive 2000/60/EC (1), the Water Framework Directive ("WFD") established a list of priority substances, which became Annex X to the WFD. These potentially polluting substances were selected for monitoring and control from amongst those presenting a significant risk to the aquatic environment.
In 2008, this first list was replaced by Annex II of Directive 2008/105/EC (2), also known as the Environmental Quality Standards Directive ("EQSD"), which set environmental quality standards ("EQS") for substances in surface waters and confirmed their designation as priority or priority hazardous substances, the latter being of particular concern. The priority and priority hazardous substances included benzene, DDT, lead, mercury and nickel.
Proposal for Draft Directive Amending Priority Substances List
Under the provisions of the WFD and the EQSD the European Commission was required to review the priority substances list.
As a result of the review, on 31 January 2012, the Commission announced a proposal for a draft Directive amending the priority substances list. 33 pollutants were already monitored and controlled in EU surface waters and the Commission proposed to add 15 further chemicals to the priority substance list. They were selected on the basis of scientific evidence that they may pose a significant risk to health
The 15 substances included the herbicides, aclonifen and bifenox; the fungicide, quinoxyfen; and the insecticides/acaricides, cypermethrin, dichlorvos, dicofol and heptachlor. The aquatic invasive species ("AIS") are proposed as “priority substances”, which would make them subject to maximum concentration levels in water. Three of the AIS, dicofol, quinoxyfen and heptachlor, are proposed as “priority hazardous substances”, which would place them under stronger measures to phase them out or stop releases into water within 20 years. Of the 11 pesticides on the existing priority substances list, the Commission wants to change the herbicide, trifluralin, to a priority hazardous substance.
In addition to the inclusion of 15 new priority substances, the main features of the draft were:
- Stricter EQS for four existing priority substances and slightly revised EQS for three others;
- The designation of two existing priority substances as priority hazardous substances;
- Provisions to improve the monitoring and reporting of ubiquitous persistent, bioaccumulative and toxic ("PBT") substances; and
- Provision for a watch-list mechanism designed to allow targeted EU-wide monitoring of substances of possible concern to support the prioritisation process in future reviews of the priority substances list.
The Commission's proposal for a draft Directive passed to the Council and the European Parliament for discussion and adoption.
Reaction of Member States and Council's Response
The Danish EU Presidency presented a “state of play” document to EU Environment Ministers in June, which outlined several issues that need to be resolved.
Additional Costs
- In its review, the Commission concluded that additional monitoring costs would be “minor” in relation to existing overall costs, and that the benefits, in terms of water quality and health, would outweigh the costs.
- It also pointed out that control measures were not prescribed and that member states may chose the most cost-effective actions. The existing legislation provides that exemptions from the WFD could be applied on account of disproportionate costs, technical feasibility or natural conditions.
- Several member states, however, have expressed doubts over the Commission’s estimates of the costs entailed.
Scientific Justification Insufficient
Some Member States considered the scientific justification used in the prioritisation process to be “insufficient” in some cases. In response, the Commission stood by its method of identifying priority substances, saying “it is clear” that the proposed priority substances pose EU-wide risks to or via the aquatic environment.
Other Member States believed that the best option would be to impose controls “at source” by amending EU legislation on the registration of particular priority substances. The Presidency has drawn up a compromise text to take this concern into account.
Monitoring
Member States were not keen on the prospect of the proposed “watch list”. It provides for the obligation to monitor a dynamic list of up to 25 substances or groups of substances at 250-300 representative sites across the EU. Many countries wanted the Commission and its Joint Research Centre to do this work or to participate and support Member States in, amongst other things, the development of analytical methods and the performance of analytical work.
Other countries called for the proposal to be replaced by a voluntary provision, and/or a reduction in the number of substances and monitoring points. However, the Commission argued that if the watch list was voluntary it would have no added value compared to the current situation, where monitoring of many substances is very patchy across the EU. The Council has replaced the procedure for establishing the watch list with implementing acts, which is supported by a majority of delegations, but opposed by the Commission
One of the few proposals welcomed by delegations is a provision for monitoring frequencies to be reduced in some cases. The Commission intends this to apply to ubiquitous, persistent, bioaccumulative and toxic substances that remain in the environment for long periods, as it recognises that national authorities can do little to speed up their removal.
Some member states would like such monitoring flexibility to be extended to other substances, although the Commission felt that this would not be appropriate without sufficient evidence. Many countries went further by arguing that such hazardous substances should be taken out of the water rules, because control measures to remove them are already in place under other EU legislation. This was also rejected by the Commission, on the grounds that it would mislead the public by implying that these substances are no longer a problem.
The EQS values and choice of matrix
Some Member States expressed reservations on the proposed EQS values and on the obligation, in certain cases, to monitor in the biota matrix as prescribed. Furthermore, some Member States did not consider the bioligand model ("BLM") as sufficiently mature, because, amongst other things, the methodical guideline for this is still being developed
Some Member States would also like a clarification on the applicable timeframes for reaching the EQS as proposed.
The date of entry into force
The transposition period of 12 months was considered inadequate by all delegations. The Presidency compromise now provides for an 18-month period.
Moving Forward
Discussions will continue under the Cypriot EU Presidency, which will work towards a Ministers’ agreement on the proposals over the next six months. The plans also have to be considered by MEPs. A vote by the European Parliament’s Environment Committee is expected in November. The full parliamentary vote is not expected before January next year.
