1. Preparation of the Commission’s 2011 proposal on Priority Substances Part III – Control measures
13th Working Group E meeting
15-16 March 2011
Jorge Rodriguez Romero
Helen Clayton
WFD Team
DG Environment

2. Working with upstream legislation
Contents
WFD requirements
WFD as a safety net
WFD measures?
Working with upstream legislation
PPP legislation
REACH 2

3. 1. WFD article 16(6) Process controls: Emission limit values
Seem more appropriate for “progressive reduction”
Some are set at EU level (IPPC, UWWTD)
Others best set at MS level (2006 Commission proposal)
Product controls:
Tools available in the upstream legislation
Seem more appropriate for “cessation/phase-out”
Best done at EU level

4. 2. WFD as a safety net
EU legislation prevents the placing in the market of substances that may cause unacceptable risks
Pesticides/Biocides by requiring prior authorisation
Chemicals under REACH by establishing the registration process including the chemical safety assessment, and tools such as evaluation, restriction and authorisation
WFD identifies priority substances by assessing the risks to the aquatic environment, largely relying on monitoring information
The WFD prioritisation process acts as a safety net to ensure that the assumptions and results of the risk assessments carried out for placing on the market of certain substances, including any mitigation measures that are applied, are actually delivering adequate protection of water resources.
It can also identify substances that are posing a risk that have been in use for many years, therefore without having been subjected to a proper risk assessment.
The WFD can then feed back to these upstream policies the information gathered that demonstrates unacceptable risks, for these policies to act according to their established procedures
Exception to this is pharmaceutical legislation, as there is no clear mechanism to influence the outcome for the environment

5. 3. WFD EU measures?
Are there EU level WFD measures to tackle chemical pollution?
The only purely WFD measure under art 16 would be Community wide emission limit values
In 2006 the Commission concluded that the most cost-effective and proportionate option was to set standards at Community level but leave flexibility to Member States to establish additional measures including emission limit values
Process controls are established at EU level by the IPPC (IED) for a range of main industrial processes
But there are many “WFD relevant measures” at EU level...

6. 3. WFD EU measures? 2006 proposal
ANNEX 6: List of pollution control measures falling under Article 16(6) WFD proposed by the Commission since 2000
PROCESS CONTROLS INCLUDING EMISSION CONTROLS FOR POINT SOURCES
• Waste Incineration Directive /76/EC
• Large Combustion Plants Directive – 2001/80/EC
• Commission proposal on the management of waste from extractive industries
• Community strategy concerning mercury
• Regulation (EC) No 850/2004 on Persistent Organic Pollutants
• Proposals for directive on ambient air quality exists for some priority substances – Lead , Benzene Cadmium, Mercury and PAHs
PRODUCT AND PROCESS CONTROLS INCLUDING EMISSION CONTROLS FOR POINT SOURCES
• proposal for a Regulation concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH)
• Amendment proposals for “Marketing and use” Directive in particular for:
• PAHs in creosote (Commission Directive 2001/90/EC – OJ L 283, 27/10/2001, p. 41)
• Pentabromo and octa bromo diphenylether (Council and European Parliament Directive 2003/11/EC-OJ L 42, 15/02/2003)
• Chloroalkanes, C10-13 (Directive 2002/45/EC -OJ L 177 , 06/07/2002, p. 21)
• TBT (Commission Directive 2002/62/EC-OJ L 183, 12/07/2002, p. 58)
• Nonylphenol (Council and European Parliament Directive 2003/53/EC -OJ L 178 , 17/07/2003, p. 24)
• Trichlorobenzenes (Directive 2005/59/EC - OJ L 309, 25/11/2005, p. 13)
• PAHs in extender oils and tyres (Directive 2005/69/EC – OJ L 323, 09/12/2005, p. 25)
PRODUCT CONTROLS
Commission Decisions or Regulation in implementing Directive 91/414/EEC:
• 1,2-dichloroethane-Pesticide use banned by Directive 79/117/EEC
• Pentachlorobenzene - Pesticide use banned by Directive 79/117/EEC.
• HCH, mixed isomers (2000/801/EC, OJ L324, , p. 42)
• Isoproturon (2002/18/EC, OJ L55, , p. 29)
• Anthracene, chlorfenvinphos and pentachlorophenol (2076/2002 of 20 November 2002; OJ No L319, p. 3)
• Simazine (2004/247/EC, OJ N° L 78, , p. 50)
• Atrazine (2004/248/EC, OJ N° L 78, , p. 53)
• Hexaclorobenzene (POP Regulation No. 850/2004)
• Chlorpyrifos (2005/72/EC, OJ L 279, 22/10/2005, p. 63)
• Endosulfan (2005/864/EC, OJ L 317, 03/12/2005, p. 23)
Furthermore,
• Directive 2002/95/EC on the restriction of the use of certain hazardous substances in electric and electronic equipment (OJ L 37, , p. 19)
• Commission Proposal for a revision of the Directive on Batteries and Accumulators
FUTURE PROPOSAL WITH RELEVANCE TO ARTICLE 16
• Thematic Strategy on Sustainable Use of Pesticides
• Pending decisions on control measures based on risk assessments under Directive 91/414/EEC (in particular for alachlor, diuron and trifluralin), under Directive 98/8/EC (in particular TBT and PCP) and Regulation (EEC) No 793/93 (in particular nickel, cadmium, lead, PAHs).
Ample toolbox in EU legislation

7. 3. WFD Member States measures?
Priority substances are identified among those posing a risk to the aquatic environment at EU level
Therefore, the WFD expects that measures are taken at EU level (Article 16.6)
In addition, MS have to take the necessary measures to complement the action at EU level, including emission limit values if appropriate (Article 11.3.k, programmes of measures)

8. 3. WFD measures summary
Combination of measures taken at EU level and at MS level
Combination of product and process controls
Approach at EU level: make maximum use of tools under existing legislation (chemicals, biocides, pesticides, industrial emissions); improve co-ordination and harmonisation where possible

9. 4. Working with upstream legislation: PPP
Article 5 of Directive 91/414/EEC: inclusion of active substances in Annex I
“(…) such inclusion may be reviewed at any time if there are indications that the criteria referred to in paragraphs 1 and 2 are no longer satisfied”
Article 21 of new Regulation 1107/2009 replacing 91/414/EEC:
1. The Commission may review the approval of an active substance at any time. It shall take into account the request of a Member State to review, in the light of new scientific and technical knowledge and monitoring data, the approval of an active substance, including where, after the review of the authorisations pursuant to Article 44(1), there are indications that the achievement of the objectives established in accordance with Article 4(1)(a)(iv) and (b)(i) and Article 7(2) and (3) of Directive 2000/60/EC is compromised.

10. 4. Working with upstream legislation: PPP
Manufacturer of active
substance requests
authorisation
Does monitoring show a non-expected risk?
Identification as
priority substance
(if EU wide)
Yes No
Risk assessment
Yes, if appropriate
mitigation measures
are implemented
Is the use safe?
Authorisation
WFD Monitoring No
PPP
WFD
Not authorised

11. 4. Working with upstream legislation: REACH
Feedback from WFD prioritisation and EQS setting process can eventually trigger action under REACH:
Evaluation
Restriction
Authorisation
Policy objectives for the most dangerous chemicals are similar (cessation/phase-out under WFD vs substitution under REACH)
Details of the articulation between both policies still to be worked out (REACH is at early stages of implementation)
Next review of the priority substances list needs to be more closely associated with REACH process and data

12. So what are we talking about when we talk about WFD measures?
EU level measures relying on upstream policies – ample toolbox already available
MS measures to complement the EU action as necessary to achieve the objectives – measures adapted to local conditions and addressing specific situations
This assumes there is a mechanism in the sectoral legislation that will, usually, effectively handle environmental impacts of chemicals and that can react on the basis of new evidence on risk