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PART 3F8F9SSPECIFIC MEASURES AGAINST POLLUTION OF WATER

F91972 c.68. Section 2(2) was amended by the Scotland Act 1998 (c.46) (“the 1998 Act”), Schedule 8, paragraph 15(3) (which was amended by section 27(4) of the Legislative and Regulatory Reform Act 2006 (c. 51) (“the 2006 Act”)). Section 2(2) was also amended by section 27(1)(a) of the 2006 Act and by the European Union (Amendment) Act 2008 (c.7), Schedule, Part 1. The functions conferred upon the Minister of the Crown under section 2(2), so far as they are exercisable within devolved competence, were transferred to the Scottish Ministers by virtue of section 53 of the 1998 Act.

[F1Interpretation of Part 3S

16.(1) In this Part—

“biota taxon” means a particular aquatic taxon within the taxonomic rank ‘sub-phylum’, ‘class’ or their equivalent;

Directive 2009/90/EC” means Commission Directive 2009/90/EC laying down, pursuant to Directive 2000/60/EC of the European Parliament and of the Council, technical specifications for chemical analysis and monitoring of water status;

“EQS” means environmental quality standards or, where the context so requires, environmental quality standard;

“existing obligations” means the obligations (on environmental quality standards in the field of water policy) under Directive 2008/105/EC of the European Parliament and of the Council (“the original Directive”) before it was amended by Directive 2013/39/EU of the European Parliament and of the Council including, in particular, the achievement of good surface water chemical status in relation to the substances and the associated EQS listed in the original Directive;

“limit of detection” means the output signal or concentration value above which it can be affirmed, with a stated level of confidence that a sample is different from a blank sample containing no determinand of interest;

“limit of quantification” means a stated multiple of the limit of detection at a concentration of the determinand that can reasonably be determined with an acceptable level of accuracy and precision;

“matrix” means a compartment of the aquatic environment, namely water, sediment or biota;

“Part A” means Part A of Annex I to the Priority Substances Directive (as read with the definitions and notes contained in that Part);

“Part B” means Part B of Annex I to the Priority Substances Directive;

“the Priority Substances Directive” means Directive 2008/105/EC of the European Parliament and of the Council on environmental quality standards in the field of water policy as amended by Directive 2013/39/EU of the European Parliament and of the Council; and

“watch list” means the watch list of substances established under Article 8b(1) and (2) of the Priority Substances Directive.

(2) For the purposes of this Part, the limit of quantification may be calculated using an appropriate standard or sample, and may be obtained from the lowest calibration point on the calibration curve, excluding the blank.]

[F2Environmental quality standards for bodies of surface waterS

17.(1) Subject to paragraph (2), SEPA must, for each body of surface water within a river basin district, apply the EQS in Part A in accordance with the requirements in Part B.

(2) Without prejudice to existing obligations, SEPA must—

(a)from 22nd December 2015, apply the EQS in Part A for the substances numbered (2), (5), (15), (20), (22), (23) and (28) (in column (1) of the table in that Part) with the aim of achieving good surface water chemical status in relation to those substances by 22nd December 2021 by means of the programme of measures included in the river basin management plan (or an update of it); and

(b)from 22nd December 2018, apply the EQS in Part A for the substances numbered (34) to (45) (in column (1) of the table in that Part) with the aim of achieving good surface water chemical status in relation to those substances by 22nd December 2027 and preventing deterioration in the chemical status of each body of surface water in relation to those substances.

(3) The objectives set under section 9(1)(a)(i) of the Act must, subject to the application of regulations 5 to 10 and without prejudice to any other objectives that are required to be set under that section, aim to achieve the obligations in paragraph (2).

(4) For the purposes of paragraph (3), references in regulations 5 to 9 to an objective set pursuant to regulation 3(1) are to be construed as an objective set pursuant to paragraph (3).

(5) For the purposes of paragraph (2)(b), SEPA must—

(a)by 22nd December 2018, establish a supplementary monitoring programme and a preliminary programme of measures covering those substances;

(b)by 22nd December 2021, establish a full programme of measures covering those substances (“the full programme”); and

(c)as soon as possible after 22nd December 2021, and not later than 22nd December 2024, implement and make fully operational the full programme.

(6) SEPA must apply—

(a)the biota EQS in Part A for the substances numbered (5), (15), (16), (17), (21), (28), (34), (35), (37), (43) and (44) (in column (1) of the table in that Part); and

(b)the water EQS in Part A for the other substances numbered (in that column).

(7) SEPA may in relation to one or more categories of surface water, apply—

(a)an EQS for a matrix other than that specified in paragraph (6); or

(b)where relevant, an EQS for a biota taxon other than that specified in Part A.

(8) Where SEPA makes use of the option in paragraph (7), it must—

(a)apply the EQS for the substances in question; or

(b)if there is no EQS for the matrix or biota taxon in question, establish an EQS for that matrix or biota taxon that offers at least the same level of protection as the corresponding EQS for those substances in relation to other matrix and biota taxon.

(9) SEPA may use the option in paragraph (7) only where—

(a)the method of analysis used for the chosen matrix or biota taxon fulfils the minimum performance criteria in Article 4 of Directive 2009/90/EC; or

(b)if the method does not fulfil those criteria for any matrix, SEPA ensures—

(i)that the method of analysis performs at least as well as that available for the matrix specified in paragraph (6) for the relevant substance; and

(ii)that monitoring is carried out using best available techniques not entailing excessive costs.

(10) Where a biota or sediment EQS for a substance in Part A is being applied and a potential risk to, or via, the water environment from acute exposure to the substance has been identified as a result of measured or estimated environmental concentrations or emissions of that substance, SEPA must—

(a)additionally apply any MAC-EQS in Part A for that substance; and

(b)carry out monitoring in relevant bodies of surface water for that substance.

(11) Any measured result for the substance being monitored must not be considered by SEPA for the purposes of assessing the chemical status of a body of surface water where—

(a)pursuant to Article 5 of Directive 2009/90/EC, the calculated mean value of a measurement, when carried out using the best available technique not entailing excessive costs, is referred to as ‘less than limit of quantification’; and

(b)the limit of quantification of that technique is above the EQS for the substance.

(12) For substances for which an EQS for sediment or biota is applied, SEPA must, subject to paragraph (13), monitor the substance in the relevant matrix at least once every year, unless technical knowledge and expert judgment justify a different interval.

(13) SEPA may monitor the substances numbered (5), (21), (28), (30), (35), (37), (43) and (44) (in column (1) of the table in Part A) less intensively than is required by paragraph (12) and Annex V to the Water Framework Directive provided that the monitoring—

(a)is representative and a statistically robust baseline is available regarding the presence of those substances in the aquatic environment; and

(b)takes place for each of the substances at least once every 3 years (unless technical knowledge and expert judgment justify a different interval).

(14) SEPA must include the following information in the river basin management plan (or the next update of it)—

(a)a table presenting the limits of quantification of the methods of analysis applied, and information on the performance of those methods in relation to the minimum performance criteria in Article 4 of Directive 2009/90/EC;

(b)for the substances for which the option in paragraph (7) is used—

(i)the reasons and basis for using that option;

(ii)where relevant, the alternative EQS established, evidence that those EQS would offer at least the same level of protection as the EQS in Part A, including the data and methodology used to derive the EQS, and the categories of surface water to which they would apply; and

(iii)for comparison with the information referred to in sub-paragraph (a), the limits of quantification of the methods of analysis for matrices specified in Part A, including information on the performance of the methods in relation to the minimum performance criteria in Article 4 of Directive 2009/90/EC; and

(c)justification for the frequency of monitoring applied in accordance with paragraph (12) (as read with paragraph (13)), if monitoring intervals are longer than one year.

(15) SEPA must ensure—

(a)that the river basin management plan (or the next update of it) contains the results and impact of the measures taken to prevent chemical pollution of surface water; and

(b)so far as it can, that the interim report describing progress in implementing each programme of measures in accordance with Article 15(3) of the Water Framework Directive is provided through a central portal which is accessible to the public electronically in accordance with Article 7(1) of Directive 2003/4/EC of the European Parliament and of the Council.

(16) SEPA must—

(a)arrange for the long-term trend analysis of concentrations of the priority substances listed in Part A that tend to accumulate in sediment or biota (giving particular consideration to the substances numbered (2), (5), (6), (7), (12), (15), (16), (17), (18), (20), (21), (26), (28), (30), (34), (35), (36), (37), (43) and (44) in column (1) of the table in that Part) on the basis of the monitoring of surface water status carried out in accordance with section 8 (monitoring) of the Act;

(b)take measures aimed at ensuring, subject to Article 4 of the Water Framework Directive, that such concentrations do not significantly increase in sediment or relevant biota;

(c)determine the frequency of monitoring in sediment and biota so as to provide sufficient data for reliable long-term trend analysis of each priority substance; and

(d)ensure that monitoring for each priority substance takes place at least once every 3 years, unless technical knowledge and expert judgment justify a different interval.]

Designation of mixing zonesS

18.—(1) SEPA may designate a mixing zone adjacent to any point of discharge to the water environment which is a controlled activity.

(2) SEPA must ensure that the extent of any such zone is—

(a)restricted to the proximity of the point of discharge; and

(b)proportionate, having regard to the concentrations of pollutants at the point of discharge and to the conditions on emissions of pollutants contained in any prior authorisation.

(3) Where SEPA designates a mixing zone, concentrations of one or more substances listed in Part A of Annex I to the Priority Substances Directive may exceed the relevant environmental quality standards within that zone, provided that this does not affect the compliance of the rest of the body of surface water with those standards.

(4) The river basin management plan (or the next update of it) for a river basin district within which a mixing zone (or any part of a mixing zone) has been designated must include a description of—

(a)the approaches and methodologies applied to define such zones; and

(b)measures taken with a view to reducing the extent of the mixing zones in the future.

(5) In paragraph (1), “controlled activity” has the meaning given in regulation 2(1) of the Water Environment (Controlled Activities) (Scotland) Regulations 2011 F3.

Register of emissions, discharges and lossesS

19.—(1) For each river basin district, SEPA must maintain a register (including maps, if available) of emissions, discharges and losses of all priority substances and any pollutant listed in Part A of Annex I to the Priority Substances Directive, including their concentration in sediment and biota, as appropriate.

(2) The reference period for the estimation of pollutant values to be entered in the register must be one year between 2008 and 2010, except that for priority substances and any pollutant covered by Council Directive 91/414/EEC F4 concerning the placing of plant protection products on the market, the entries may be calculated as the average of the years 2008, 2009 and 2010.

(3) SEPA must update the register as part of (or, so far as it applies to an area of Scotland which is outside a river basin district, in conjunction with) each review under section 5(3) (review of characterisations) of the Act.

(4) The reference period which must be applied for the establishment of values in the updated register is the year before that review is to be completed, except that for priority substances and any pollutant covered by Council Directive 91/414/EEC, the entries may be calculated as the average of the 3 years before the completion of that review.

(5) SEPA must publish the updated register (except in so far as it applies to an area of Scotland which is outside a river basin district) in each update of the river basin management plan.

(6) For the purposes of paragraph (1) only—

river basin district” includes—

(a)

the part of the Northumbria River Basin District which is in Scotland; and

(b)

the part of the Solway Tweed River Basin District which is in Scotland;

the Northumbria River Basin District” means the area identified by regulation 3(1) of the Water Environment (Water Framework Directive) (Northumbria River Basin District) Regulations 2003 F5; and

the Solway Tweed River Basin District” means the area identified by regulation 3(1) of the Water Environment (Water Framework Directive) (Solway Tweed River Basin District) Regulations 2004 F6.

F4OJ L 230, 19.8.91, p.1, as last amended by Commission Implementing Directive 2011/60/EU (OJ L 136, 24.5.2011, p.58).

[F7CoordinationS

19A.(1) Where the results of a report under Article 7a(2) of the Priority Substances Directive show that additional measures at the EU or member State level may be necessary in order to facilitate compliance with the Water Framework Directive in relation to a particular substance approved pursuant to Regulation (EC) No 1107/2009 of the European Parliament and of the Council as amended from time to time or Regulation (EU) No 528/2012 of the European Parliament and of the Council as amended from time to time, the Scottish Ministers must take the steps necessary to apply—

(a)Article 21 or 44 of Regulation (EC) No 1107/2009; or

(b)Article 15 or 48 of Regulation (EU) No 528/2012,

as appropriate, to that substance or to products containing that substance.

(2) In applying the provisions of the Regulations referred to in paragraph (1), the Scottish Ministers must take into account any risk evaluations and socio-economic or cost-benefit analyses required under those Regulations, including as regards the availability of alternatives.

Watch listS

19B.(1) SEPA must monitor each substance in the watch list at selected representative monitoring stations for a period of at least 12 months (“the monitoring period”).

(2) For each substance in the watch list as first established by Commission Implementing Decision (EU) 2015/495, the monitoring period must begin on 14th September 2015.

(3) For any substance added to the watch list after it was first established, the monitoring period must begin within 6 months of the date on which the substance was added to the list.

(4) SEPA must select at least two representative monitoring stations.

(5) In selecting representative monitoring stations, and the monitoring frequency and timing for each substance, SEPA must—

(a)take into account the use patterns and possible occurrence of the substance; and

(b)ensure that monitoring is carried out at each station at least once per year.

(6) SEPA may decide not to monitor a substance under paragraphs (1) to (5) if—

(a)it has sufficient, comparable, representative and recent monitoring data for the substance from existing monitoring programmes or studies; and

(b)the monitoring was carried out in accordance with a methodology that satisfies any guidelines developed under Article 8b(5) of the Priority Substances Directive.]