Government▼Watch
The EU is struggling to resolve a struggle over states’ rights to decide whether environmental lawbreakers should face legal criminal penalties. In a landmark ruling announced on September 13, the European Court of Justice (ECJ) decided that the European Commission (EC) should have the power to prosecute member states if they fail to introduce a law mandating criminal prosecution into their national systems. The EC administers more than 200 environmental directives, but breaches are rife, and the system of warning letters and fines imposed by member states on companies and individuals who ignore the directives has not been enough to stop the trend for noncompliance. Oil spills from tankers and the pollution of the Danube with cyanide are all examples of breaches that weren’t adequately punished, EC officials say. The impetus for the court ruling dates back to 2001, when the EC pro-
DANIEL FABIAN
Landmark EU ruling on enforcement
Who prosecutes the lawbreakers?
posed a directive obliging each member state to ensure that a range of activities already outlawed by existing EU legislation were deemed to be criminal offences when committed intentionally or with serious negligence. These offences include pollution of water supplies, various forms of air pollution, trading in protected species, and serious damage to protected habitats. Under the proposal,
member states would introduce a law that would mean companies could be taken to court and individuals could receive prison sentences. “In 2003, the [EU’s Environment] Council agreed to the substance of the proposal but objected to the form” and rejected the directive, explains Martin Selmayr, a spokesperson for the EC’s legal services department. Instead, it approved a framework decision, a much weaker instrument of law, in which member states promise to introduce national laws. However, the EC has no recourse if they fail to do so, says Selmayr. “What we didn’t want was a situation where some countries were imposing criminal sanctions and some weren’t. Certain companies could then be attracted to the countries where enforcement was weaker,” Selmayr explains. The future of any directive remains uncertain. The political landscape has changed since 2003, and some member states are concerned that it undermines their individual powers. —MARIA BURKE
EPA seeks data on perchlorate for a second time Drinking water utility executives are scratching their heads over a U.S. EPA suggestion that they monitor for perchlorate for a second time, at levels that are much, much lower than what they believe a future standard would likely require. Under a rule proposed in August, these utilities would have to gather occurrence data on perchlorate and 25 other unregulated chemical contaminants. The Safe Drinking Water Act requires the agency to identify up to 30 contaminants for monitoring every 5 years. EPA based its selection on priority contaminants targeted on its Contaminant Candidate List (CCL), contaminants identified through earlier processes for which no analytical methods were then available, and additional contaminants of concern gleaned from current occurrence research and health-effects risk factors. In 1999, EPA called on utilities to monitor for perchlorate at levels of 4 ppb and above. Now, EPA is recommending that utilities again collect occurrence data on perchlorate, but this time down to levels of 0.57 ppb. The problem, according to the
© 2005 American Chemical Society
American Water Works Association’s Alan Roberson, is that a perchlorate standard “isn’t likely to be lower than 5 ppb.” He bases this assumption on the reference dose of 0.0007 mg/kg per day recommended in January 2005 by the U.S. National Academy of Sciences and adopted by EPA. This translates into a drinking-water concentration of 24.5 ppb, when 100% of exposure from drinking water is assumed. Consequently, EPA is unnecessarily “mandating utilities to do a [$4.4 million] research project,” Roberson adds. Lynn Thorp with Clean Water Action, an environmental group, says she understands the utilities’ frustration. Yet, the public-health community remains concerned about health effects below 4 ppb, she says. Indeed, in 2002, EPA recommended a 1-ppb drinking-water limit as part of a draft toxicological review of perchlorate (Environ. Sci. Technol. 2003, 37, 166A–167A). After receiving public comments, EPA expects to finalize a rule by August 2006, with data collection occurring from 2007 to 2010, Kemery says. —KRIS CHRISTEN
NOVEMBER 1, 2005 / ENVIRONMENTAL SCIENCE & TECHNOLOGY ■ 439A
