Legislation Gap on Microplastics in the
Freshwater Environment
An Interdisciplinary Analysis of the River Rhine
Martijn Verra (10533966) Florian Giltaij (10643559)
Law Business
martijn.verra@gmail.com florian-giltay2009@live.nl
Lisanne Renkema (10756418) Emma Polman (10799478)
Political Science Earth Sciences
lisannerenkema@hotmail.com emma@polman.net
Tutor: Jaap Rothuizen Expert: Alison Gilbert Date: December 23th 2016 Word count: 7570
Abstract
This interdisciplinary research aims to find the most effective legislative measures to address microplastic (MP) pollution in the Rhine catchment area. This since MP is a widespread pollutant in the freshwater environment. First, a literature review on the current
environmental situation with regard to MP pollution magnitude, extent and sources is conducted. Thereafter an integrated definition of the concept effectiveness is composed, to be able to combine insights on effectiveness of different disciplines. Based on this
information, a supranational as well as interdisciplinary approach proves to be most
effective. This is found in the EU Water Framework Directive (WFD), a binding and existing policy to which microplastics could possibly be added. Finally, to address the microplastic problem effectively, the possibility of the addition of microplastics to the European Water Framework Directive in an amendment is put forward.
Index
1. Introduction 3
2. Current situation 5
2.1 State and extent of pollution 5
2.2 Microplastic Sources 7 3. Theoretical Framework 9 3.1 Effectiveness 9 3.2 Measures 10 4. Methodology 12 4.1 Literature Review 12 4.2 Interdisciplinary approach 12 4.3 Amendment 12 5. Threshold value 14 6. Legislative proposal 16
6.1 The Water Framework directive 16
6.2 Legislation gap 17 6.3 Including MPs in the WFD 17 6.4 Article 10 WFD 18 7. Conclusion 20 References 22 Appendix 25 Annex I 25 Annex II 27
Figure 1 SEQ The River Rhine (black line) and its catchment area (grey area) (Frijters & Leentvaar, 2003).
1. Introduction
Since plastic production and consumption have grown, pollution of the environment by microplastics (MPs) has become one of the most severe problems modern society faces (Do Sul & Costa, 2014; Wagner et al., 2014). Because of their small size, smaller than 5 mm, and low degradation rates MPs are likely to accumulate, causing harm to organisms and ecosystems (Wright et al., 2013, Eerkes-Medrano et al., 2015). A
distinction is made between primary and secondary MPs. Primary MPs are produced as micro particles and added directly to products such as cosmetics, while secondary MPs are the degradation products of larger plastic fragments. This research will focus on secondary MPs, since these are considered to be the biggest source of MP pollution (Hidalgo-Ruz, 2012; RIVM, 2014). MPs are mostly dispersed from pollution source by surface waters and finally end up in the seas and oceans (Eerkes-Medrano et al.,
2015). Rivers are considered significant contributors to the marine environment, since it is estimated that approximately 80% of the plastic input into oceans originates from rivers (Jambeck et al., 2015).
Much research on MPs in the marine environment has already been done (Cole et al., 2011; Andrady, 2011,; Do Sul & Costa, 2014), but investigating MPs in the freshwater environment has only been undertaken in the last couple of years and still struggles with knowledge gaps (Wagner et al., 2014; Eerkes-Medrano et al., 2015). In Europe, one of the most plastic polluted rivers is the river Rhine, due its densely populated watershed and high industrial activities near the river, especially in the Ruhr region in
Germany (Mani et al., 2015). The Rhine flows from Switzerland via France, Germany and the Netherlands to the North Sea and is about 1320 kilometres long and has a catchment area of 170,000 km2 (Figure 1). This makes the Rhine one of the largest rivers in Europe. In
addition, the Rhine watershed is populated by about 50 million people, of which 20 million depend directly on the Rhine for drinking water. Furthermore, the river environment forms a habitat for many species, for example salmon and water birds. (Frijters & Leentvaar, 2003). Pollution by MPs threatens these functions, which calls for action. Solving the MP pollution in and around the Rhine will require an interdisciplinary approach, since one is dealing with a transboundary ecosystem affected by human activities (Van der Keur et al., 2008).
Even though the MP problem is gaining more attention and legislation against primary MPs is currently being developed (Rochman et al. 2015), legislation counteracting secondary MPs in the freshwater environment is lacking. This is striking, since anti-plastic legislation already exists for the marine environment (Wagner, M., Scherer, C., Alvarez-Muñoz, D. et al. 2014). Because of the significant link between plastics in the marine and freshwater environment and the large share of secondary MPs, developing legislation for freshwater environments would be a logic step.
This report aims to identify which legislative measures would be most effective in addressing MP concentrations in the river Rhine catchment. Therefore the main research question is:
Which legislative measure is the most effective to address MP concentrations in the river Rhine catchment?
This requires knowledge not only of current legislation considering pollution in the freshwater environment, but also on MP sources, MP dispersal and behaviour in the Rhine environment, politics and business. The development of the proposed legislative measures will be done according to an interdisciplinary concept of effectiveness and goal
accomplishment, in which common ground is found between the different disciplines this research contains.
In order to find the most effective legislative measures, first an analysis of the current state of the environment is made, in which pollution sources and extent will be discussed. Then, the interdisciplinary concept of effectiveness and goal accomplishment will be set out in the theoretical framework and methodology will be discussed. Afterwards, different legislative levels and possibilities will be discussed according to effectiveness and the most effective option will be worked out to a legislative proposal. Finally, a conclusion is drawn considering this new proposal and remarks and comments on this research will be discussed.
2. Current situation
In order to tackle the MP problem in the Rhine, more insight needs to be gained considering the current state of the environment. This includes an evaluation of the state and extent of pollution, as well as identification of the most important pollution sources. This will be a starting point for the development of new legislative measures.
2.1 State and extent of pollution
This section will discuss MP observations and measured concentrations in the Rhine surface water and sediment in order to give an overview of the current state of pollution. At the moment, only two studies that measured quantitative MP concentrations in the Rhine catchment have been publicized. The first research is carried out by Mani et al. (2015) and presents a profile with MP concentrations along the entire course of the River Rhine. Concentrations were measured on 11 locations, chosen on their proximity near cities and industry, since the highest concentrations were expected to be found there. MPs were collected using nets with an opening of 18*60 cm and a mesh size of 300µm, thus results only provide information considering the water surface layer. The results of this research are displayed in figure 2.
Figure 2: Mani et al. (2015). Spatially distribution of MP concentrations is given in particles*km-2 And MPs are classified by their physical characteristics.
On average, a concentration of 892,777 particles*km-2 was present, but regional
differences are high. In the upper part of the catchment area concentrations are rather low (below 5000 particles*km-2) to rise in the Rhine's middle part and reach a peak of 3.9 million
Rhine enters the Netherlands, which is most likely due to low flow velocities, which enables deposition of MP particles in the sediment (Mani et al., 2015). However, quantitative research to the sediments in this area has not been carried out yet.
The only research on Rhine sediments has been performed by Klein et al. (2015) and covers a much smaller area than the research by Mani et al. (2015). Data was collected where the Rhine is joined by its tributary the Main (Figure 3). Data shows large differences as well, as values range from 228 on site R6 to 3763 million particles*kg-1 on site R3. The
highest MP concentrations were found just after the confluence of the Rhine and Main in the proximity of a wastewater treatment plant (WWTP). When comparing the results of Klein et al. and Mani et al. it is striking that MP concentrations in one kilogram of sediment strongly exceed the values of MP concentrations in one square kilometre of surface water. This accumulation is likely due to the low degradation rate of MPs.
Figure 3: sampling locations of the research on MPs in the sediment by Klein et al. (2015). Highest values were found after the confluence of the Rhine and Main, with a peak on site R4.
In conclusion, at the moment only two publications on MP concentrations in the Rhine are available, but all measurements show presence of MPs in the environment, even at the most upstream sample site near Basel. Concentrations in the water peak in the Ruhr region and concentrations in the sediment peak after the confluence of a tributary and near a WWTP. This is information is of crucial importance for source identification, which will be discussed in the following section.
2.2 Microplastic Sources
Secondary MPs originate from both point and diffuse sources. Point sources are sources where pollution comes from one location such as a plant, while in the case of diffuse sources, pollution is caused by multiple, relatively small polluters in a larger area.
Diffuse sources
The most important diffuse MP source is plastic litter, that turns into MP by physical
degradation and degradation by UV-light. In the Netherlands, the RIVM (Institute for Public Health and the Environment) (2014) listed packaging material and litter with the highest priority scores in a research on reducing MPs in the environment. Another main source is tyre wear, which is produced by the degradation of tyres of motor vehicles. It is estimated that during the life cycle of a tyre 20 percent of its total weight is abraded into micro particles (Magusson et al., 2016). Regions with a large traffic and population density can therefore be considered important diffuse MP sources. This is in line with the observations of Mani et al. (2015), since concentrations peak near large cities and in the Ruhr region, where much transport takes place.
Point Sources
When looking at point sources, the most important sources are WWTPs (Wagner et al., 2014) and storm water outlets of the sewage system (Free et al., 2014; RIVM, 2014). Besides primary MPs originating from cosmetic products, secondary MPs are present in the wastewater of municipalities as well. Part of this secondary MP load are microfibers that are degraded from clothing in washing machines, since washing one batch of laundry can release 140,000 to 730,000 fibres, depending on the materials the laundry is made of (Napper & Thompson, 2016). Furthermore, the earlier described MPs from diffuse sources, such as degraded litter and tyre wear can end up in the sewage system as well (Magnusson & Norén, 2014; RIVM, 2016). The greatest share of the sewage water ends up in WWTPs, where it is treated and cleaned. Research in Sweden and the USA pointed out that WWTPs have a removing efficiency of about 99%, but that the remaining 1% can still significantly contribute to MP concentrations in the environment (Magnusson & Norén, 2014; Carr et al., 2016). The high MP in the sediment peak observed by Klein et al. (2015) just after a WWTP endorses this claim.
However, not all sewage water is treated in a WWTP, since wastewater is sometimes directly discharged to the environment when the sewage system is overloaded during heavy rain events. Discharge takes place via stormwater outlets, and is mostly directly transported to the surface water, since surface runoff is high during rainfall events.
Even though no assessment of WWTP and storm water outlet emissions in the Rhine catchment has been made yet, a rough estimation of their pollution magnitude can be made using data from Eurostat, the statistical office of the European Union. According to the most recent Eurostat data, the total volume of wastewater discharged without treatment in the Rhine river basin was 687.5 million cubic metres in 2010 and the total amount of water discharged by WWTPs was 6,137.76 million cubic metres (Eurostat, 2016). Research to MP concentrations in the in- and effluent of a Swedish WWTP by Magnusson & Nóren (2014) yielded concentrations of 15,100 particles/m3 and 8.25 particles/m3 in the inflowing and
outflowing water respectively. Using this data, the magnitude of WWTP MP emissions in the Rhine river basin can be made (Table 1).
Water discharge (million m3/year) [MP] by Magnusson and Nóren (particles/ m3) Total (particles/year) Waste water discharge without treatment 687.5 15,100 1.04*1013 water discharge by WWTPs 6,137.76 8.25 5.06*1010
Table 1: rough estimation of the total amount of MP particles released by WWTPs and the sewage water system per year.
About 10 trillion and 50 billion particles are estimated to enter the Rhine by not treated waste water and by WWTP effluent respectively. Given the fact that the Swedish WWTP was a rather small factory, serving only 12000 households, these calculated numbers are likely to be an underestimation of the real emission values of WWTPs in the Rhine catchment area. One should however
In conclusion, MPs originate from multiple sources, which will all need a different approach in order to lower MP emissions. However,legislation would be an effective way for creating a starting point for policy makers to tackle MP sources. This will be further explained and discussed in the following sections.
3. Theoretical Framework
3.1 Effectiveness
As stated in the introduction, the objective of the research is to find a measure that effectively addresses pollution of microplastics in the Rhine catchment area. But when is such a measure considered to be effective? Effectiveness is a concept that is differently used among multiple disciplines. Therefore, we constructed an integrated definition of effectiveness to serve as common ground in our research.
An important distinction in different definitions of effectiveness can be found in the definition of The Intergovernmental Panel on Climate Change (IPCC) of effectiveness: “the extent to which a policy meets its intended environmental objective or realizes positive environmental outcomes” (2007, 13.1.2), in comparison to the definition of the effectiveness of the EU mentioned by Skjaerseth & Wettestadt (2002): “change in the behaviour of target groups at national and subnational levels caused by the institution in question” (2002, 100). The two obviously differ in that the IPCC talks about positive environmental outcomes, while the second definition focuses on behavioural change. This difference is very important in how to achieve goals: is environmental policy effective when positive environmental objectives are reached, or when behaviour is changed as an effect of the measure? We argue that most environmental policies can be used to change behaviour, in order to subsequently (indirect) reach a higher goal: positive environmental outcomes or objectives. Therefore the policy almost always, directly or indirectly, aims to achieve those
environmental effects.
The nature of the problem (and its problem solving capacity) (Skjaerseth &
Wettestadt, 2002; Birnie & Boyle, 2002) is considered a very important factor in whether the problem can be solved effectively by a certain agreement or policy. For instance, according to Young and Levy (1999), different approaches to effectiveness should be used in
environmental law. These could be the Problem Solving Approach, the Legal Approach, the Economic Approach, the Normative Approach and the Political Approach (Young & Levy, 1999). In International Relations, several theoretical schools such as Realism, Liberalism and constructivism, address problems and effectiveness differently. Although all of these approaches and theories reach different objectives differently, all of these different objectives can be the central goal of a policy, and when they are reached it means that that policy was effective. That means, especially in environmental law and politics, that every measure or policy aims to reach some kind of objective. And the objective or goal is therefore essential to effectiveness.
Another important element of effectiveness is the one of implementation (Skjaerseth & Wettestadt, 2002). In this research, the goal of the proposed measure is to reduce the amounts of MP in the Rhine catchment area back to safe levels. However, the measure that does that best might not be the optimal choice regarding cost-effectiveness. When forced to reduce pollution, people tend to use the easiest and cheapest methods possible. The initial marginal benefit of this will be effective: large in scale and low in costs. When further reducing pollution however, marginal costs will rise for more expensive methods need to be used, and marginal benefit will decrease (Mishan, 1974). When the marginal costs of cleaning the environment become higher than the marginal benefit, one might say that reducing pollution even further is no longer worth it. This means there is an optimal point of pollution that is not zero (Mishan, 1974). Therefore it is important to use the cheapest methods that achieve their goal.
Including all of the above leads to the following integrated definition of environmental effectiveness:
An environmental measure is considered effective in our integrated approach when it meets its goals by influencing human behaviour, at the lowest possible cost for the executive parties.
When considering implementation in effectiveness, it is as well important to keep the subsidiarity principle in mind. It means whenever it is possible to transfer any political activity to a lower level, this should happen.
3.2 Measures
Measures can be constructed at multiple different levels by different actors. These levels can be local, national, transnational or supranational.
The first level to deal with the MP problem is the national level. Dealing with the MP problem would mean that every Rhine country makes its own legislation. Each country is responsible for its own part of the Rhine. When we look at this measure from an
effectiveness point of few, it would not be a bad option. All the national legislations could be able to meet its goals by influencing human behaviour, at the lowest possible cost for the executive parties. But there are a few problems with the national level. Firstly the MP problem is a transboundary problem. The Rhine flows through multiple countries. So each country effects the next country. At a national level scale, the different legislation could differ from country to country. This makes it hard to enforce the legislation when there is a
transboundary conflict. Different definitions and values will make it hard to decide which country to blame for the problem. This will make it hard to address the MP problem effectively.
History teaches us that transnational level is not the best option either. Environmental agreements tend to fail because of participation and compliance problems due to free riding (Barret, 2008). Often, the individual parties lack the authoritative power or a higher
authoritative party to enforce the decisions and to give penalties to those that fail to comply (Gardiner, 2006). The Kyoto protocol is an example of this. Multiple states did not meet their individual targets, partly because real enforcement was lacking (Barret, 2008). Considering that transnational agreements might not be able to reach the achievement of its goals, the transnational level does not promise effective measures.
In contrast to the participants of the Kyoto protocol, the states in the basin of the Rhine do have such higher authoritative party, for they are all European member states. The supranational institutions of the European Union have the power to create binding rules. This accounts for a lower chance of free riding and increases the potential for achieving
environmental goals. Esty and Mendelsohn (1998) pointing out even more arguments in favour for a supranational level. They state that for more effective environmental agreements to emerge, four criteria must be satisfied. First, the targeted environmental problem must be important enough to offer big potential gains to international collective action. Second, the particular solution pursued must deliver large and demonstrable net benefits. Third, the policy mechanisms chosen must be developed and implemented in a manner that is sensitive to the range of development levels and environmental values of participating nations. Fourth, the costs of action must be distributed equitably. The supranational levels seems to be the best level to handle the MP problem. Therefore this report will focus on an supranational European measure.
The EU institutions can act through the following ways: regulations, directives, decisions, recommendations and opinions (TFEU, article 288). A regulation or directive is most suitable for addressing microplastic in line with our definition of effectiveness. Both are binding. However, the directive is more in line with our perspective on effectiveness, for it is binding in its results to the member states, which means that conversion to national law and rulemaking is mandatory. In this way the subsidiarity principle is enclosed in a directive and
not in a regulation: the EU shall leave the choice of form and methods to the national authorities.
An already existing European directive about the pollution of European waters is Directive 2000/60/EC of the European Parliament and of the Council establishing a
framework for the Community action in the field of water policy, better known as the Water Framework Directive (WFD). The WFD encompasses all European surface waters including the Rhine. It sets thresholds for a large number of different substances that are considered harmful and urges member states to meet these environmental standards. The subsidiarity principle is incorporated in the WFD as well. According to article 11 of the WFD, the EU sets up ecological quality standards (EQS) and leaves the construction of the measures to reach these standards to the member states (European parliament & European council, 2008). One of the factors of Esty and Mendelsohn (1998) was that the policy mechanisms chosen must be developed and implemented in a manner that is sensitive to the range of
development levels and environmental values of participating nations. This is why the WFD is preferred besides a new regulation or directive. The WFD has proven to have a good monitoring system and it has drastically increased the knowledge in European surface waters (Hering et al., 2010). In addition, many Member States have already implemented the WFD into own legislation. Therefore the WFD is a developed and implemented policy
4. Methodology
4.1 Literature Review
A literature review is most suited for our research because our research is based on the entire river rhine, so it was not within our scope to perform a quantitative or qualitative data review. Relevant literature has been acquired through search engines as Google Scholar and ScienceDirect. Key terms were: ‘’microplastics’’ ‘’freshwater’’, and ‘’Rhine’’. When reviewing the articles it became clear that most research concerning microplastics in the marine environment has been done in oceans instead of rivers. In Eerkes-Medrano et al. (2015) there is only one source mentioned that provides data on microplastics in the river Rhine, and currently there are only two more articles written about the river Rhine: Mani et al. and Klein et al. This means that some assumptions had to be made considering MPs in the freshwater environment, using research done on the marine environment. The Water Framework Directive (WFD) provides us with a basis for measures used for equivalent problems.
4.2 Interdisciplinary approach
The problem of microplastics in the river Rhine cannot be solved from the viewpoint of one discipline. It touches natural sciences (researching water quality, researching accumulation of microplastics) as well as social sciences (how can measures effectively applied to reduce this problem). According to Repko (2012) it is a complex problem when two or more
viewpoints are needed in order to completely understand the problem. That is the case with this problem, leading to an interdisciplinary approach. In order to integrate the four
disciplines: Law, Business, Earth Sciences & Political Science, common ground was needed. The concept of effectiveness provided a certain commonality, as explained in 3.1 Effectiveness. This concept could then be organized in order to create a common definition that binds the different disciplines. And creating a common criterion for found measures.
4.3 Amendment
As an extension on the WFD an amendment is needed in order to include MPs (more about this subject in paragraph 6.2. An amendment is a legal document made by adding, altering or omitting a certain part or term. When signed by all the parties involved, it retains the legal validity of the original document. Figure 4 shows which steps are needed to be undertaken in order to establish an amendment.
5. Threshold value
An important aspect of effectiveness is whether stated goals are achieved. In the case of microplastics, getting the MP concentration to a level that is regarded as safe is the goal stated from all disciplinary perspectives, and thus the common ground between the disciplines . However, the value of this level may vary between disciplines, since the most favourable ecological threshold value will not necessarily correspond to the safest cost-effective level.
When setting threshold value, MPs can be considered the same as substances such as nutrients and certain trace metals or as harmful chemicals. In the first case, safe
concentration thresholds are set out for each substance and policy aims to reduce
concentrations, while in the last case one is dealing with a zero-concentration policy. This means that any presence of the substance is considered as harmful, and that one would endeavour to eliminate MPs from the Rhine environment. Whether MPs have to be reduced or eliminated has implications for legislation and the WFD and will thus be investigated in the following sections. In order to classify MPs in one of the two categories, first the chemical composition and harmful consequences of MPs for the Rhine environment have to be set out.
MP composition
As stated before, MP are plastic particles with a size smaller than 5 mm. Plastics are polymer structures made of smaller hydrocarbon monomers, which form long chains. The type of monomer of which a polymer chain is made differs for different types of plastic and determines the plastic's properties. The most frequently produced plastic types are
polyethylene (PE), polyethylene terephthalate (PET), polypropylene (PP), polystyrene (PS), and polyvinyl chloride (PVC) and synthetic fibres such as nylon, polyester and acrylic (Wagner et al., 2014). Besides these synthetic polymers natural polymers such as rubber can be found too. Furthermore, plasticizers are sometimes added to plastics in order to increase plasticity. Identification of polymer type often takes place by using infrared
spectroscopy (Mani et al., 2015; Wagner et al., 2014). In Rhine MP profile study by Mani et al. (2015) PS was most abundant, followed by PP.
Effects of MPs on the environment
MPs have impact on the environment in two different ways. The first impact of MPs is that they can serve as vectors for persistent bio accumulative toxic chemicals (PBTs) (Wagner et al., 2014). Due to the chemical properties, many polymers can adsorb and thus concentrate these PBTs. This includes POPs (persistent organic pollutants), such as DDT and PCBs which can cause harm to human health (Engler, 2012). Engler further states that the extent of sorption depends on the polymer type and concentration. In addition, plasticizers added to plastics can be released when plastics degrade. Examples are phthalates and bisphenol A, which are proven to have negative impacts on animal reproduction (Oehlmann et al., 2009). Thereby, an increase of bacteria was found on MP particles in a river in the USA, giving evidence that MPs are also suitable as vectors for microbial pathogens, which can be harmful for humans too (McCormick et al., 2014).
The second way MPs impact the environment is by ingestion by aquatic organisms, such as fish. Research to fish feeding on plankton in the North Pacific pointed out that fish confuse MPs for plankton particle, since plastic particles were found in 35% of the sampled fishes (Boerger et al., 2010). In addition, MPs were found in a great variety of marine wildlife and are thus believed to travel through the food chain (Sigler, 2014). For the freshwater environment research is still in its starting phase, but during research on
gudgeons in French rivers 12% of the fish were found contaminated with MPs (Sanchez et al., 2014). However, both Boerger et al. And Sanchez et al. emphasize further research considering the degradation and residence time in the fish has to be executed. Besides physical impacts of plastics particles on aquatic life, the vector effect can transport pathogens and PBTs to aquatic organisms (Sigler, 2014).
Regarding the information above, it can be concluded that MPs cause a significant threat to the Rhine's ecosystem. In addition, the vector effect of MPs could be a threat to drinking water safety, putting two important ecosystem services of the Rhine at risk. It is therefore logical to categorise MPs as substances that have to be eliminated from the water system. However, as previously described, the MP concentrations in the Rhine's surface waters were measured at 892,777 particles*km-2 on average, which makes it practically
impossible to eliminate plastics from the water on a short time scale. Thus, it would be more feasible to set a concentration threshold value. Unfortunately, literature has not provided such a value yet, since additional research is needed. Despite the deficiency of a concrete threshold value, the following section will describe the legislative options for reducing MP concentrations using the WFD.
6. Legislative proposal
6.1 The Water Framework directive
In 1976 the European Commission created the first directive on dangerous substances in service water. This was the Council Directive on pollution caused by discharges of certain dangerous substances (Directive 76/464/EEC) and was a first indication of substances, classified in different lists.
‘’List I contains certain individual substances which belong to the following families and groups of substances, selected mainly on the basis of their toxicity, persistence and bioaccumulation, with the exception of those which are biologically harmless or which are rapidly converted into substances which are biologically harmless.’’
For this report point 8 of List I is interesting;
“8. persistent synthetic substances which may float, remain in suspension or sink and which may interfere with any use of the waters.’’
Article 2 of this same directive states that:
‘’Article 2; Member States shall take the appropriate steps to eliminate pollution of the waters referred to in Article 1 by the dangerous substances in the families and groups of substances in List I of the Annex and to reduce pollution of the said waters by the dangerous substances in the families and groups of substances in List II of the Annex, in accordance with this Directive, the provisions of which represent only a first step towards this goal.’’
As part of the restructuring of the European water policy, Directive 76/464/EEC was integrated into a new water policy. In 2000 the European Commission and Parliament created the Directive 2000/60/EC of the European Parliament and of the Council
establishing a framework for the Community action in the field of water policy, better known as the Water Framework Directive (WFD). The WFD contained an even wider list of ‘priority substances’ which had to be addressed in order to achieve good qualitative and quantitative status of all water bodies. A few years later in 2008 the list was expanded and replaced by the Environmental Quality Standards Directive (EQSD).
The new list of priority substances of the Water Framework Directive is much more detailed and are classified in a big list. Article 2 WFD states that:
‘’Article 2;
30. "Priority substances" means substances identified in accordance with Article 16(2) and listed in Annex X. Among these substances there are "priority hazardous substances" which means substances identified in accordance with Article 16(3) and (6) for which measures have to be taken in accordance with Article 16(1) and (8).’’
As stated in paragraph 2.2, MPs originate from both point and diffuse sources. The WFD deals with these sources in the following order:
‘’Article 10; The combined approach for point and diffuse sources
1. Member States shall ensure that all discharges referred to in paragraph 2 into surface waters are controlled according to the combined approach set out in this Article.
As one of the most important water legislations, the WFD does not seem to fit right for handling the MPs problem. The next paragraph will discuss the possible legal gap and tries to construct a solution to fill this gap.
6.2 Legislation gap
MPs could be covered by point 8 of directive 76/464/EEC. After all, MPs are persistent synthetic substances, which may float, remain in suspension or sink and which could interfere with any use of the waters. If we assume that point 8 could be relevant for MP’s.
The new list of priority substances is very extensive. The list sums up a lot of chemical elements (Appendix, Annex I). The Water Framework Directive does not specifically refers to plastic litter. Annex X does not mention MPs or similar terms. Some MP have been shown to contain the WFD priority substances di(ethylhexyl) phthalate (DEHP), nonylphenol,
octylphenol, and PAHs (Wagner et al., 2014) but MPs are much more than that. As
described in paragraph 5, MPs are very complex. Therefore MPs are not fully covered by the WFD. The definition of point 8 of the 76/464/EEC directive is seems to be disappeared. The WFD states that:
‘’Article 22;
3. The following transitional provisions shall apply for Directive 76/464/EEC:
(a) the list of priority substances adopted under Article 16 of this Directive (WFD) shall replace the list of substances prioritised in the Commission communication to the Council of 22 June 1982;’’
Directive 76/464/EEC requires Member States to control all discharges of the dangerous substances. List I substances had to be eliminated. List II substances required a emission
reduction programmes had to be established. Directive 76/464/EEC demanded action of
the Member States by eliminating or at least reducing MPs, with the current legislation it looks like MPs are not considered as important. Therefore the next paragraph will explain our solution.
6. 3 Including MPs in the WFD
Paragraph 6.2 indicated the gap in the current legislation about MPs. Our solution would be to do a legislative proposal (Appendix, Annex II) to add MPs onto the list of priority
substances in the WFD. This will be done via an amendment. By adding MPs to the priority list the Member States have to take action applying the WFD.
For the Rhine this would for example mean redesigning the river basement plans stated in article 3 WFD;
‘’Article 3
4. Member States shall ensure that the requirements of this Directive for the achievement of the environmental objectives established under Article 4, and in particular all programmes of measures are coordinated for the whole of the river basin district. For international river basin districts the Member States concerned shall together ensure this coordination and may, for this purpose, use existing structures stemming from international agreements. At the request of the Member States involved, the Commission shall act to facilitate the establishment of the programmes of measures.’’
In order to achieve good quality of the surface water, the Member States need to follow a specific approach. Under Directive 76/464/EEC the Member States had to decide whether they want to use a 'emission limit based approach' or a 'water quality based approach'. However, both approaches have certain drawbacks for the efficient reduction and elimination of dangerous substances in the aquatic environment. The Water Framework Directive is a step forward by introducing the 'combined approach. Paragraph 6.1 already briefly described the combined approach as stated in article 10 WFD;
‘’The combined approach for point and diffuse sources
1. Member States shall ensure that all discharges referred to in paragraph 2 into surface waters are controlled according to the combined approach set out in this Article.
2. Member States shall ensure the establishment and/or implementation of: (a) the emission controls based on best available techniques, or
(b) the relevant emission limit values, or
(c) in the case of diffuse impacts the controls including, as appropriate, best environmental practices
set out in:
- Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control,
- Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment, - Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources,
- the Directives adopted pursuant to Article 16 of this Directive, - the Directives listed in Annex IX,
- any other relevant Community legislation
at the latest 12 years after the date of entry into force of this Directive, unless otherwise specified in the legislation concerned.’’
6.4 Article 10 WFD
Member States have different options in the combined approach to improve the water
quality. Point a and b are both concentrating on point sources. Point (a) is the most technical based measure. This measure is more specifically for industry and WWT. In order to control the emission companies have to use the best available technique. This definition originates
from the Industrial Emissions Directive (IED). The definition of best available techniques is stated in article 3(10) IED:
"best available techniques" means the most effective and advanced stage in the development of activities and their methods of operation which indicates the practical suitability of particular techniques for providing the basis for emission limit values and other permit conditions designed to prevent and, where that is not practicable, to reduce emissions and the impact on the environment as a whole:
- "techniques" includes both the technology used and the way in which the installation is designed, built, maintained, operated and decommissioned;
- "available" means those developed on a scale which allows implementation in the relevant industrial sector, under economically and technically viable conditions, taking into
consideration the costs and advantages, whether or not the techniques are used or
produced inside the Member State in question, as long as they are reasonably accessible to the operator;
- "best" means most effective in achieving a high general level of protection of the environment as a whole.
Point (b) are the emission limit values (ELV). The WFD defines ELV as; "Emission limit values" means the mass, expressed in terms of certain specific parameters, concentration and/or level of an emission, which may not be exceeded during any one or more periods of time. Emission limit values may also be laid down for certain groups, families or categories of substances, in particular for those identified under Article 16. This means that Member States have to consider the emission limit value for MPs as discussed in paragraph 5. Point (c) deals with the diffuse sources of MPs. Just 3 out of 6 points are relevant for MPs. This is because Directive 91/676/EEC of 12 December 1991 is about concerning the protection of waters against pollution caused by nitrates from agricultural sources and the Directives listed in Annex IX are not dealing with MP related problems. Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control is a good
example of the combined approach. Directive 96/61/EC is a directive which provides a legal basis for a permit system; ‘’Article 4 Permits for new installations
Member States shall take the necessary measures to ensure that no new installation is operated without a permit issued in accordance with this Directive, without prejudice to the exceptions provided for in Council Directive 88/609/EEC of 24 November 1988 on the limitation of emissions of certain pollutants into the air from large combustion plants’’ With these permits the Member States can control the emission of MPs and therefore the ELV. The Member States can also mandatory the use of the best available technique as a condition to the permit.
Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment is a
contradicting one but of the most important directive concerning MPs. Paragraph 2.2 pointed out that WWTP are the most important point sources for MPs. But the WFD defines WWTP as a diffuse source. Nonetheless WWT are very important for the emission of MPs.
Therefore it is important to improve the WWTP bearing in mind the Directive 91/271/EEC and the best available techniques.
7. Conclusion
It can be concluded that secondary microplastic pollution is a complex, transboundary problem that has just recently breached the surface. Because of the novelty of the issue, no legislation has been made yet to counteract secondary MP pollution. However, recent publications on MP concentrations in the Rhine showed the extensive presence of MPs in the environment. MPs were found for in all water samples taken in the Rhine, even at the most upstream sample site near Basel. The highest concentrations are located in the Ruhr region and near WWTPs. Besides WWTPs, plastic litter, tyre wear and stormwater outlets are the main sources for microplastic pollution. These are both diffuse and point sources and thus very diverse and therefore hard to tackle at once.
MPs impact the environment by serving as vectors for persistent bioaccumulative toxic chemicals (PBTs) and harmful bacteria and through ingestion by aquatic organisms. Research in the marine environment pointed out that fish confuse MPs for plankton and MPs were found in a great variety of marine wildlife and are thus believed to travel through the food chain. The combination of these harmful effects and the abundance of MPs in the Rhine emphasize therefore the need for suitable legislation.
This suitable legislation can be constructed at multiple different levels by different actors. These levels can be local, national, transnational or supranational. The first level to deal with the MP problem is the national level. Legislation could differ from country to
country. This makes it hard to enforce the legislation when there is a transboundary conflict. History teaches us that transnational level is not the best option either. Environmental
agreements tend to fail because of participation and compliance problems due to free riding. Often, the individual parties lack the authoritative power or a higher authoritative party to enforce the decisions and to give penalties to those that fail to comply. The states in the basin of the Rhine do have such higher authoritative party, for they are all European member states.
The supranational institutions of the European Union have the power to create binding rules. This reduces the chance of free riding and increases the potential for achieving
environmental goals. Therefore we think it is best to handle the MP problem via the European Union.
The main research question of this report was: Which legislative measure is the most effective to address MP concentrations in the river Rhine catchment? We conclude that an European directive is the best measure to address MPs. This report preferred the WFD over a new regulation or directive. The WFD has proven to have a good monitoring system and it has drastically increased the knowledge of European surface waters. In addition, many Member States have already implemented the WFD into legislation. Therefore the WFD is a developed and implemented policy mechanism. However the WFD is not adequate to address MPs. In 2000 the European Commission and Parliament created the Water Framework Directive (WFD). The WFD does not specifically refers to plastic litter. Annex X does not mention MPs or similar terms. Some MP have been shown to contain some WFD priority substances such as di(ethylhexyl) phthalate (DEHP), nonylphenol, octylphenol, and PAHs. But MPs are much more than that. Therefore MPs are not fully covered by the WFD. Our solution would be to do a legislative proposal (Appendix, Annex II) to add MPs onto the list of priority substances in the WFD. This will be done via an amendment. By adding MPs to the priority list the Member States have to take action applying the WFD.
More research and monitoring necessary
As stated multiple times before in this report, there are some knowledge gaps that need to be bridged in order to get better insight in the way, frequency and magnitude MPs are released and dispersed to the river Rhine. The two articles that are available provide a good starting point, but tell nothing about seasonal variability, while Faure et al. (2015) stated that surface runoff can be 5 to 150 times higher during heavy rainfall events. This will have implications for local MP concentrations and thus for the measures needed to bring concentrations down. A monitoring program in which all countries in the Rhine catchment area collect and share data is therefore recommended. This monitoring program will also enable evaluation of the effectiveness of local and national measures and thus of the whole policy making influencing mechanism of the WFD.
threshold value hard to determine
Since little quantitative research has been done on MP concentrations in the freshwater environment and its effects, it is very difficult to determine a threshold value. However, such a value is needed to add MPs to the WFD, since policymakers on the national and local level need a value to work towards. In addition, this value is required to enable the EU to give sanctions when member states fail in keeping concentrations below the threshold. As stated before, MPs have certain dangerous effects on ecosystems and could therefore be
considered as harmful chemicals which need to be eliminated from the environment. Because of their large abundance in the environment this is not possible on the short term, but on the long term a zero concentration level might be achievable. This implies that the threshold value in the WFD should have the possibility to be altered, based on new
measurements, monitoring data and research. Thus, at the moment, setting up a threshold or safe level is one of the main challenges in addressing MPs, and this will need additional research as well as integration of these new and existing researches.
Economic consequences
New measures to counter MP polluting will cost money. Therefore in order to create a fair cost and benefit analysis it would be very interesting to make an estimate what MP pollution and their external effects are costing society right now. Think of costs such as: extra
engineering costs due to more advanced filtration systems, healthcare costs, diminished fisheries, and loss of income for the tourism sector. The costs of future measures should be compared to the costs, which we already have, since these costs are often forgotten in cost benefit analysis.
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Appendix
Annex I
Source: Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in the field of water policy, amending and subsequently repealing Council Directives 82/176/EEC, 83/513/EEC, 84/156/EEC, 84/491/EEC, 86/280/EEC and amending Directive 2000/60/EC of the European Parliament and of the Council http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008L0105
Annex II
EUROPEAN COMMISSION
Brussels, 11.12.2016
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in the field of water policy
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Directive 2008/105/EC of the European Parliament and of the Council of 16 December 2008 on environmental quality standards in the field of water policy
