INVESTIGATION OF DRINKING WATER QUALITY ENFORCEMENT PROCEDURES IN MEMBER STATES OF THE EUROPEAN UNION

Final Report to the Department of the Environment, Transport and the Regions

DWI0800

June 1998

Executive Summary

The implementation of the EU Drinking Water Directive 80/778/EEC in six Member States (Denmark, France, Germany, Italy, The Netherlands and Spain) has been reviewed with particular reference to enforcement procedures, in terms of their legal basis, institutional arrangements and practice for contraventions of the standards set out in the Directive. In addition, other aspects, such as information available on drinking water quality, consumers’ rights and any court actions relating to drinking water quality have been examined.

None of the reviewed countries have a fully privatised public water supply, although several countries have some private companies, often operating on behalf of municipalities (or regions), but all under the control of public administrations. However, there seems to be a wide-spread trend towards increasing rationalisation to form larger organisations and moves towards more privately operated water suppliers.

Overall supervision of water supply and quality at national level lies with Ministries of Health or Environment, although direct supervision and enforcement is fragmented, with involvement of local, regional and sometimes state authorities, and the distinction between operators and legislators is often blurred. Only the system in the Netherlands, where Regional Health Inspectors and one National Co-ordinator oversee water companies, closely resembles the system in England and Wales.

All Member States reviewed have implemented the Directive, although most with considerable delays with respect to the required time scale (France in 1989 after European Court action was initiated). France, Germany and the Netherlands have amended their drinking water regulations in response to action by the European Commission and/or European Court of Justice proceedings, concerning incomplete and/or incorrect transposal of the Directive; in France and Germany this concerned, among other issues, the provisions relating to derogations. The parameters have broadly been adopted as in the Directive, with minor deviations, i.e. some stricter standards and some additional standards. On the whole, the provisions of the Directive for issuing derogations have also been adopted in national legislation.

Only one country, The Netherlands, publishes an annual, national report on drinking water quality, similar to, though less detailed than that produced in the UK. France compiled a national summary report in 1993, some national surveys for specific parameters, and a recently published, regional report has been obtained. In view of the lack of published data and inconsistency where data are available, it is not possible to assess the overall level of compliance in most countries. However, there is evidence of compliance problems, particularly in respect of microbiology, nitrate and pesticides.

There are a variety of ways of enforcing compliance with drinking water standards; in most cases the responsible authorities are at local or regional level and frequently the powers are divided among several levels of authority; moreover, the distinction between water suppliers and enforcement authorities is not always entirely clear (Denmark, Italy, Spain).

The most centralised, and probably the most effective system, similar to that in England and Wales, is in The Netherlands where Regional Public Health Inspectors (with one national co-ordinator) have the duty to enforce compliance. In France the responsibility lies with the Departmental Prefect (regional level); in Spain with the Regional Health Administration (with close involvement of municipal authorities); in Denmark with the County Council, though the municipal authorities are also involved; in Italy it is mainly with the Local Health Department, but with responsibilities divided among several other levels (provincial, regional, national) and in Germany with the Local Medical Officer.

Compliance monitoring is carried out in a variety of ways ranging from self-monitoring (The Netherlands) to analyses carried out directly by the authorities responsible for enforcement or laboratories appointed by these authorities (Denmark and France), and combinations of these approaches (Germany, Italy, Spain). Where the responsible authorities do not carry out the monitoring, they have to be informed of any breaches of standards.

Concerning breaches of standards, it is clear that all countries give overriding importance to maintenance of supply, provided that consumers’ health is not considered to be at risk if the supply is continued. Consequently, all decisions concerning actions in cases of non-compliance are primarily based on public health considerations.

In cases of microbiological contamination (or suspected contamination), the problem is investigated and rectified immediately (usually by (additional) disinfection of the supply and distribution system) and boiling notices may be issued.

It is also generally recognised that non-compliance with chemical parameters does not normally constitute an immediate health risk, and that relatively long-term improvement measures are usually adequate. All countries studied, except The Netherlands, have used mainly derogations to deal with breaches of chemical standards, i.e. they have made extensive use of derogations in cases not permitted under the Directive, e.g. for long-term breaches of standards for nitrate, pesticides and other undesirable or toxic substances (parameters listed in Annexes C and D of the Directive). In France and Italy this was done through legal instruments (Circulars or Decrees, respectively; some recently withdrawn) permitting such derogations, whilst in Germany, official guidelines are used which are based on health considerations but have no legal standing. The derogations are normally accompanied by improvement measures and time limits; these may form part of the derogation (‘Prefectoral Order’ in France, ‘Administrative Order’ in Denmark, ‘Exemption Regulation’ (Ausnahmeregelung) in Germany).

In addition, authorisation or informal acceptance of temporary breaches of standards for chemical parameters is practised in all countries together with relatively informal agreements or recommendations relating to improvement measures, although the option of issuing formal Orders is available to enforcement bodies in Denmark, France and The Netherlands. With the exception of France and The Netherlands, where these are dealt with by the Departmental Prefect or the Regional Inspector, respectively, such authorisations are mainly dealt with by lower level authorities than the derogations, i.e. mainly at municipal level, and may not be reported to national authorities.

In some cases derogations or authorisations of temporary breaches of standards, e.g. for nitrate, are accompanied by other measures, such as informing the public of the risk and/or providing alternative supplies for drinking or for vulnerable groups of consumers.

The responsible authority for enforcement is usually also responsible for monitoring progress with improvement measures and achievement of compliance, but in most cases it was difficult to assess just how effectively these were carried out. It seems quite common to give extensions to derogations or other forms of authorisation of breaches of standards. Court proceedings seem to be rarely used to enforce compliance.

In all Member States, consumers have general rights to receive or obtain water quality information, either from the water suppliers directly, or from enforcement agencies. However, the information may not always be detailed, it may consist of annual, average values or incomplete sets of parameters. Rights to compensation exist, in principle, but have not been tested in all countries.

The experience of actual court cases in the countries studied, is varied and there do not seem to be very many on the whole. However, a number of interesting court cases have taken place, involving actions against enforcement authorities and actions against water suppliers. In several cases in Germany, Mayors or water suppliers were judged guilty of negligence for supplying drinking water with microbiological contamination. Two similar cases are being fought in Italy. However, on at least three occasions, cases have been won against enforcement authorities: in Germany a court ruled that diacetone keto-gulonate which originated in drinking from industrial effluent (vitamin C production) was not subject to the pesticides parameter, although chemically identical to the pesticide Dikegulac; in Denmark a municipality won a case against the Danish EPA which had refused to issue a derogation for manganese; and in Italy a court ruled that several ’Orders’ authorising breaches of the pesticides standard could only be applied in emergencies and with a time limit. In several countries, consumers have fought successfully against water suppliers: in France for breach of the nitrate standard; in Denmark for supplying ‘undrinkable’ water and damage to laundry; in the Netherlands for adding fluoride to the drinking water; and in Germany for serious damage to the health of a baby due to high nitrate levels in drinking water.

It is difficult to assess the overall effectiveness of enforcement in the countries studied, particularly because of the scarcity of published data on drinking water quality and the absence of a consistent approach to reporting, even where data are available, as well as the fragmented approach to enforcement. However, of the countries studied, it seems that the system in The Netherlands has been the most effective, mainly due to the close collaboration between water suppliers and regulators, a system of national co-ordination, public pressure to ensure high quality of supplies, combined with openness and public accountability (i.e. the responsibility for water supply lies with elected local or regional governments).

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