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MINING
WASTE: THE AZNALCÓLLAR TAILINGS POND FAILURE
By Tilak Ginige LLB( UNL) LLM (University of Wales, Aberystwyth)
The author wishes to thank Ms.Francoise Jarvis, for valuable guidance and assistance, Prof. Christopher P. Rodgers and Mr. Brian Jack, Dr.Krämer of DG Environment at the EU Commission, Ms.Eva Royo Gelabert of the World Wildlife Fund, Prof.Enrique Alonso Garcia of Schillers Abogados-Madrid, Dr.Gerrit Betlem of the University of Exeter, Ms.Maria Martinez of Baker Mackenzie-Barcelona, Prof. Francesc Morata of the Autonomous University of Barcelona, Mr.José María Montero Sandoval, Mr.Juan Clavero of the Ecologists in Action Andalucia, Mr.Pedro Soler Matutes, Dr.Javier Junceda of the International University of Catalonia, Prof. Paz Vizcaíno Sánchez-Rodrigo, Mr.Carlos Ayora of the Consejo Superior de Investigaciones Científicas("Jaume Almera"-Institute of Earth Science), Mr Bernart Mullerat of Bufete Mullerat, and Dr.Mar Aguilera Vaques of the University of Barcelona. Summary: This two-part article is a case study of
the European Union and Spanish legislation with respect to the protection
of the environment from mining activity. Mining activity can have many
negative impacts on the environment by changing the landscape, altering
water tables, disrupting the local ecology, generating serious air and
water pollution, and permanently degrading large areas of land. To prevent
this from occurring it is important that there is wise management of every
aspect of its operations using best applicable techniques. Within the
mining process tailings have the highest potential to cause significant
harm to the environment. This article evaluates the measures taken by the European Union and its Member States, in particular Spain, to control and regulate harm caused to the environmental by mining activity. The study of the Aznalcóllar tailings impoundment failure, near the Doñana National Park in Spain, will assist us to review the different aspects of the relevant International Conventions and European environmental legislation. The critical appraisal of applicable EU and Spanish legislation and the interplay between the different actors will allows us to establish the main issues with regard to the effective regulation of the mining waste. This first part of the article discusses what tailing
ponds are and their role in the mining process. It looks at the location
of the mine in relation to the Wetland - Doñana and the failure
of the tailings pond. It sets the frame within which the legal implications
can be reviewed then provides a critical analysis of the European Directives
and Regulations applicable at the time of the accident. ABSTRACT Mining activity can have many negative impacts on
the environment. Mining can change the landscape, alter water tables,
disrupt the local ecology, generate serious air and water pollution, and
permanently degrade large areas of land. To prevent this from occurring
it is important that there is wise management of every aspect of its operations
using best applicable techniques. Within the mining process tailings have
the highest potential to cause significant harm to the environment. Environmental protection has not always been the
specific goal per se of the European Union. It was only after the Single
European Act in 1986 that an explicit legislative mandate with respect
to environmental policy came into being (1). The extensive legislation
which appeared before this date can best be referred to as environment-related
(2), as it was primarily focused on achieving the conditions necessary
for the establishment and functioning of the single market. The aim of this dissertation is to evaluate the measures taken by the European Union and its Member States, in particular Spain, to control and regulate harm caused to the environmental by mining activity. The study of the Aznalcóllar tailings impoundment failure, near the Doñana National Park in Spain, will assist us to review the different aspects of the relevant International Conventions and European Environmental legislation law. The critical appraisal of applicable EU and Spanish legislation and the interplay between the different actors will allows us to establish the main issues with regard to the effective regulation of the mining waste. Outline of Chapters The first chapter discusses what tailing ponds are
and their role in the mining process. It looks at the location of the
mine in relation to the Wetland - Doñana. It looks at the failure
of the tailings pond. It sets the frame within which the legal implications
can be reviewed. The second chapter is a critical analysis of the
European Directives and Regulations applicable at the time of the accident.
The third chapter is a critical analysis of the
Spanish legal system, relevant preventative and sanctioning legislation
and the actors who participated in the Spanish environmental policy with
regard to the case. Analysis of Judgement of the Aznalcóllar Case
The fourth chapter concentrates on the main implication
flowing from the analysis of the EU and Spanish legislation. The fifth chapter is the conclusion and suggestions.
1.THE FACTS I. Introduction Since 1971 there have been at least thirty tailing
dam failures in the world, where toxic substances have been released into
the surroundings (3). The Instituto Técnico y Geominero de España
(ITGE)(Geo-mining Technical Institute of Spain) listed a total of 661
tailing dams in Spain between 1985 and 1998 in which 168 cases of instability
were reported and 160 cases of water catchments and rivers were being
polluted (4). Today there are at least seven tailing ponds, which pose
a severe threat to vulnerable areas, with possible Aznalcóllar
like consequences (5).
Tailings ponds Tailings ponds or impoundments are found at almost
every mine in the world. They are large earth fill dams containing the
residue (tailings) of the milling process to extract metals from mined
ores. To obtain the valuable minerals, the rock is ground into fine particles
and mixed with water and chemicals to help them float out. The resulting
fine slurry has the consistency of sand, clay and silt. It contains heavy
metals and other toxic substances often composed of sulphides that, when
mixed with water in air, form acid. Mining companies take different approaches to dispose
of this waste at the lowest possible cost. Some put it back into the mineshafts;
others employ controversial practices of submerging tailings offshore.
Most commonly the tailings are stored behind earthen dams. Although water-retention
type dams would be very suitable for tailings, they are not used for their
high cost. Water-retention type dams are not usually constructed to completion,
but raised sequentially as the impoundment fills.
The Aznalcóllar and Los Frailes mines Aznalcóllar is located at the eastern-most
end of the Iberian pyrite belt, 45km northwest of Seville, in southern
Spain. In 1960, Andaluza de Piritas, SA (Apirsa) was formed as part of
the Banco Central SA industrial group (now Banco Hispano Americano), in
order to acquire and exploit the deposit of pyroclast and pyrite. The
tailings dam was constructed in 1978 and processing began with the production
of zinc, lead and copper concentrates in 1979 at a rate of 3.5Mt/y. It
was designed and built by Geocisa, another company owned by Banco Central.
In 1987, Apirsa was acquired by the Swedish-Canadian
group Boliden, who continued extraction from the Aznalcóllar open
pit until 1996. The company also located another ore body, called Los
Frailes, in the same area. Production from this deposit started in 1997,
with a capacity of 4Mt/y, using the same processing facilities and tailings
impoundment as Aznalcóllar.
The tailings impoundment of Aznalcóllar The tailings impoundment is located in a valley,
just above the conjunction of the rivers Los Frailes and Agrio. The River
Agrio flows into the River Guadiamar two kilometres below the site, which
then flows into the River Guadalquivir. The River Agrio originally flowed
through the site of the Aznalcóllar pit but was diverted by means
of a 20 million cubic meters upstream dam and a two kilometre tunnel.
The geology of the valley consists of a 10m layer of alluvial gravel overlying
30m of Miocene marl beds. The tailings dam is two kilometres long and one
kilometre wide, and abuts the natural topography to the west, with embankments
to the north, east and south. The embankments are constructed of a bentonite
plug that extends through the alluvial sediments and one and a half metres
into the clay bedrock, and are built up with waste rock. At its highest
point, the embankment is currently 30m above ground level and is raised
annually by one metre. The impoundment is divided into two sections: originally,
the tailings from the pyroclast processing were discharged separately
to the pyrite ones. Since the start up of Los Frailes there was only one
type of ore and, therefore, a single tailings discharge stream, with both
sections of the impoundment being used. The impoundment was designed for
70Mt of tailings, equivalent to 32.6 million cubic meters. It is estimated
that about 14 million cubic meters of tailings were discharged from the
processing of the Aznalcóllar ore and a further 1 million cubic
meters from the Los Frailes deposit with the impoundment containing a
total of 15 million cubic meters at the moment of the accident. The supernatant liquid in the impoundment had a
pH of between 2-4. It contained elevated levels of copper, lead, zinc
and iron. The liquid was pumped from the tailings pond to the water treatment
plant from where it was recycled to the processing plant. Any surplus
water was discharged to the River Agrio. The plant also treated water
that was pumped from a series of seepage collection systems, including
wells, a covered drain and an open ditch, around the tailings impoundment.
Prior to the failure, an estimated 15m3/h was collected from these seepage
systems. Doñana: National Park and Natural Park The Doñana National Park received legal protection
by virtue of Decreto (Decree)(D) 2412/1969, 16 October 1969, and consisted
of 34,625ha (6). In 1973 D3101 declared a zone of complete refuge within
the park. Ley (Law)(L)91/1978, 28 December, of the Parque Nacional de
Doñana (7) reclassified the park and increased it to 50,720ha.
In 1989, a further 26,540ha were created around the existing National
Park, to act as a buffer zone. Around the National Park is an area of
55,327ha known as the Natural Park. The extent of the protected area (currently 132,587ha)
is a moot point. International NGOs like WWF, SOE/Birdlife are of the
opinion that 230,000ha should be protected as a Special Protected Area
(SPA) under the EU Birds Directive 79/ 409 (8) which came into force in
1988 (9). However, only 57,200ha have been designated. In 1982, the Ramsar
Convention further designated the core area of 50,720ha within the National
Park as an internationally important wetland. This area was also recognised
as a Biosphere Reserve under UNESCO’s Man and the Biosphere Programme
in 1980 and inscribed on the World Heritage List in 1994. The National Park stretches from the River Guadalquivir
in the east to the El Rocio road in the west. The River Guadiamar flows
down through a rich farming area before reaching the marshlands that surrounds
and makes up the Doñana National Park. In this marsh area, a system
of dikes and canals has been built to control and re-route the flow of
the river away from its original course and into the Brazo de la Torre,
which then flows into the Guadalquivir. The main canal, known as the Entremuros,
separates the reclaimed agricultural land in the west from the rice paddies
in the east. The protected area includes marshes, sand dunes, beaches,
flora and fauna, in particular bird-life. The marshes are breeding grounds
and winter homes for 250 species of birds. The area is host to six million
migratory birds each year.
The failure The principle cause of the Los Frailes accident
has been established as deficiencies in the design and construction of
the tailing dam by Dragados y Construcciones, and its associated engineering
firms, Itecsa and Geocisa (10). This coupled with the fragility of clay
soil and the high pressures of the water on the clay foundation (11) is
said to have triggered the dam failure. The flow of tailings that escaped
through the breach caused a rupture of a 50m section of the embankment.
About two million cubic meters of liquid and three million cubic meters
of solids were released from the tailings impoundment (12). The first reports stated that a wall of slurry,
two metres high, flowed down the River Agrio and River Guadiamar. However,
the bridge at Sanlúcar la Mayor, 13 km downstream, has a tide mark
at least four metres above the riverbed, which indicates a much greater
flow at some stages. The slurry reached the marsh lands at the eastern
edge of the Doñana National Park, 60 km to the south, some seven
or eight hours later. The flow was partially stemmed by a series of dikes,
which were hastily constructed along the Entremuros by staff from the
park with the help of farmers. There was a risk that they could have failed.
For this reason, by the fifth day more permanent structures were constructed
at the southern-most end of the Entremuros, on the border of the National
Park. This resulted in the flooding of large farming areas in the Natural
Park to the west of the Entremuros. One of the largest farmers' unions, ASAJA (13),
claimed that the tailings had destroyed around 5,000 ha of farm land comprising
of cotton, peaches, oranges, lemons, olives, maize, sunflower, wheat,
grazing pasture and forest. A further 1,000 ha of rice paddies were affected.
The Spanish Government’s official position was that, "the tailings flood killed 29,725 kg of fish, 240 kg freshwater crabs, 23 birds, four rabbits and one water rat". It also claimed that there had not been any effect on Doñana. However, evidence put forward by scientists and environmental groups indicate that animals inside the National Park were affected because they would feed outside the protected area. Furthermore, fears were expressed that the aquifer that underlies most of the area (Aquifer 27) around the park may have been contaminated. According to Boliden-Apirsa, the total area that suffered from inundation was 2,100 ha. The company has also estimated that at least 80% of the tailings were deposited in the first 17 km of river, in the River Agrio and River Guadiamar, between the tailings impoundment and the Sanlúcar la Mayor road bridge. Remediation costs The regional government allocated Pta11 billion
towards the disaster: Pta5 billion for clearing and rehabilitating the
land and Pta6 billion for compensation. The compensation was to enable
the regional government to buy the contaminated land from the farmers
in order to achieve its plan to create a green corridor along the river.
This will be achieved by creating the Guadiamar watershed linking the
western Sierra Morena Mountains with the littoral ecosystems of Doñana.
It will include the compulsory purchasing of the land on either side of
the Guadiamar River. Criticism of the project came from the farmers whose
lands have been damaged. Many of the affected farms are large with only
a small percentage of the land having been contaminated. They did not
see why they should lose everything. Boliden-Apirsa agreed to pay for the clean-up operations
and rehabilitation work in its area of responsibility. It was also reported
that it had offered to pay Pta952 million compensation to the farmers
for the loss of income and harvest that had to be destroyed (14). An unforeseeable tragedy? Tailing ponds by their very nature and location
are vulnerable. Earthquakes, typhoons, heavy rain fall and spring melts
add to the risks of dam failure. Poor planning and construction problems,
such as inadequate storage capacity and poor drainage designs, just compounds
the potential for a collapse. Besides, the dams are most often built of
material available at the mine site. Therefore, they can present inconsistencies
in their quality, which can lead to seepage that can weaken the dam structurally
(15). Complaints made to the Andalucian authorities by
Boliden-Apirsa’s mining engineer, Manuel Aguilar Campos, made seepage
from the Aznalcóllar tailings facility a public issue in Spain
in late 1995 (16). He was subsequently forced to resign on account of
the complaints made against the company. In early 1996, a Spanish environmental
group (17) filed a complaint in the Court of First Instance in Sanlúcar
la Mayor. They alleged that defects in the construction of successive
lifts of the dam wall since 1989 could cause a failure of the walls and
that seepage from the dam was polluting the Agrio and Guadiamar rivers
(18). Shortly after the complaints were made, Boliden-Apirsa
and the Spanish authorities agreed to commission Geotécnica y Cimientos,
S.A. (Geocisa), to conduct a study of the stability of the dam. This study
was reviewed by outside academic experts and forwarded for review to the
appropriate Spanish central and regional authorities, including the ITGE.
The study entailed a review and verification of the original 1978 design
parameters, and included a program of bore-hole drilling and trench excavation
at the dam and laboratory tests and stability calculations under various
hypotheses. In March 1996 it concluded that there were no signs of instability
in the dam. Early in 1996, Boliden-Apirsa commissioned Golder
Associates to carry out a hydro-geological study to determine the actual
extent of the seepage. This study concluded that the volume of water seeping
through the dam wall and screens were 10m3/hour, of which 85% were being
captured by existing containment and pumping systems leaving only 1.5m3/hour
seeping into the Agrio River. Boliden-Apirsa also commissioned Dames &
Moore to investigate and report on possible technical solutions to minimise
this seepage. After its stability study, Geocisa was commissioned
to design the next stage of dam wall lifts required to accommodate tailings
from the Los Frailes mine, as well as to make recommendations for expanded
monitoring of the dam. In its June 1996 report, Geocisa recommended a
program of control to verify that what was being built above ground conformed
to design specifications. Geocisa also recommended a program of instrument
installation and monitoring activities to detect possible movements in
the aquifer in the alluvium terrace and the dam. These recommendations
were all accepted by Boliden-Apirsa and subsequently implemented by Geocisa
under a separate contract. On 20 June 1996, the head of the Industry, Energy
and Mining Service of the Andalucian Department of Industry, Trade and
Tourism issued an order permitting Boliden-Apirsa to proceed with the
next stage of dam wall lifts in accordance with Geocisa's design. The
Department was satisfied that the steps taken by Boliden-Apirsa "confirm
the stability of the tailings dam challenged in the complaint". The
order also stated that the (ITGE) had recommended retaining the current
features of the construction and monitoring the behaviour of the dam wall
(19). This order stopped the complaint process of Boliden-Apirsa’s
ex-mining engineer Manuel Aguilar Campos. On 4 March 1997, the Court of
First Instance dismissed the complaint lodged by the Spanish environmental
group as the facts alleged were found not to constitute any offence (20).
As part of the dam wall lift project, a hydraulic
barrier was constructed around it, 20-30 metres away from the toe of the
dam. This system was designed to completely eliminate seepage to the Agrio
River. It consisted of open drainage ditches for the south-west dam wall,
buried drainage pipes for the south and south-east dam walls, water well
barriers for the east and north wall and a bentonite-cement cut-off wall
between the river and the north side of the dam. The capacity of the existing
water treatment plant was also increased by 50% to 1,500 m3/hour. In early 1997, Boliden-Apirsa and Geocisa completed
the installation of the recommended monitoring system, consisting of four
inclinometers and four piezometers, as well as a network of 22 survey
points distributed along the dam crest. In accordance with the recommendations
of Geocisa, the piezometers were all installed in the alluvium terrace.
They did not penetrate into the marl formation, 0-20m below ground surface.
According to the preliminary report by EPTISA Servicios de Ingeniería
SA (a company commissioned by Boliden-Apirsa) one possible cause of the
accident could be the slippage in a shear zone in the marl formation.
By March 1997, Geocisa began the recommended inspection and reporting
programme, comprising of weekly site visit, quarterly monitoring and annual
summary reports. Geocisa delivered the first of these summary reports
(for 1997) to Boliden-Apirsa in March 1998, one month before the dam failure.
The most recent inspection prior to the failure was on 14 April 1998.
None of the inspections and monitoring activities carried out before the
failure indicated any instability in the dam (21).
Litigation In 1998 a case was brought against 31 individuals
accused of causing the accident. The sentence, which came out on 22 December
2000, found the defendants not guilty. This sentence leaves the possibility
for an appeal and civil and administrative cases to be brought by the
plaintiffs. Furthermore, another case based on the accident has been brought
in Canada by a number of shareholders of Boliden Ltd against the company
for misrepresentation. This case is at a preliminary stage (22). The following section analyses the relevant EU and
Spanish legislation with a view to understanding the legal implications
and limitations of the current tools applicable in the protection of the
environment in the European Union, particularly in Spain. II. Applicable European Union legislation Environmental protection has not always been the specific goal per se of the European Union. It was only after the Single European Act in 1986 that an explicit legislative mandate with respect to environmental policy came into being (23). The extensive legislation which appeared before this date can best be referred to as environment-related (24), as it was primarily focused on achieving the conditions necessary for the establishment and functioning of the single market. There is no specific legislation on mining activity
in the European Union. There are, however, EU Directives on waste, water,
air quality, nature conservation e.g. on the conservation of birds and
habitats - and Environmental Impact Assessment (EIA) (25) - that govern
the activities of the non-energy extractive industry. Waste legislation The Community framework Directive on waste is Dir.75/442
(26). It defines waste as "any substance or object which the holder
discards or intends or is required to discard". It differentiates
between disposal and recovery operations. Annex I of the Directive considers
that the residues from raw material extraction and processing (e.g. mining
residues) are waste (27). However, Art.2 Dir.91/156 (28) excludes from
its scope: (b) where they are already covered by other legislation:
(ii) waste resulting from prospecting, extraction,
treatment and storage of mineral resources and the working of quarries
It seems to exclude mining waste. However, it is
questionable whether the term "already covered by other legislation"
in (b) is referring to other Community legislation or legislation created
within Member States. Dir.75/442 became a framework Directive when it
was amended by Dir.91/156. Therefore, the provisions of Dir.75/442 may
apply to all Community waste legislation. Besides, Art.2(2) Dir.91/156
mentions the possibility of providing for specific rules, in particular
Directives. It would not have made sense if it had not been for the purpose
of making it a general Directive. Moreover, the subsequent waste measures
regarding hazardous waste (29), refer in their terminology to Dir.75/442.
To understand "other legislation" as national
or regional, would mean that mining activities in Andalucia would not
be covered by this Directive because this region already had mining legislation.
What is more, the Directive would apply to those regions that did not
have mining legislation. Thus, the only logical interpretation of "other
legislation" is that it refers to Community legislation. The word "already" indicates that, in
the minds of the authors, Community legislation covering activities governed
by Art. 2(b)ii must have existed in 1991, when Dir.91/156 was adopted.
It is possible that a later Community provision was supposed to clarify
its relationship with Directive 75/442. A similar situation had occurred
with Dir.94/62 on packaging and packaging waste (1994) OJ L365/10 or Directive
94/67 (n.33) (30). The ambiguity of the application of Directive 75/442
as amended by 91/156 was brought to the attention of the Baia Mare Task
Force(BMTF) by representatives of the mining industry who, up until then,
were under the impression that the Directive did not apply to the mining
sector. BMTF stated that the Commission had indicated that the Directive
did indeed apply to the mining sector (31). They, however, felt that a
new Directive was necessary to make clear which of its provisions applied
in the context of tailings management (32). Based on the above argument, the waste deposited
in the tailings pond of Aznalcóllar came under the provisions of
Dir.75/442. The activity of putting the waste into the tailings pond is
listed in Annex IIA (Disposal Operations) of that Directive: D1) Tipping above or underground (e.g. landfill) D4) Surface impoundment (e.g. placement of liquid
or sludge discards into pits, ponds or lagoons). Mining waste is listed in European Waste Catalogue
(EWC) (33) under the following chapters: 01- waste resulting from exploration, mining, dressing and further treatment of minerals and quarry 010101- waste from mineral metaliferous excavation.
Mining waste ought to be considered hazardous waste
due to the harmful chemicals it contains. However, when Member States
set up the Community list of hazardous waste (34) following Dir.91/689
(35), waste from chapter 01 of the EWC was never included. It is argued
that this was the result of heavy lobbying by the mining industry on the
grounds that each Member State had different regulations, which would
be difficult to unify under a single Directive. Whatever the reason, the
fact that mining waste was excluded from hazardous waste legislature is
a clear example of economic interests overshadowing environmental considerations.
Thus, the operator of the mine and the holder had
to adhere to the less stringent requirements of Dir.75/442 as amended
by Dir.91/156 on waste: Art.4- to ensure that the waste is disposed of without using processes or methods which could harm the environment, and in particular without risk to water, air soil and plants and animals, and without adversely affecting the countryside or places of special interest. Art.9- obligation to have a permit for disposing of the waste. Art.13- to make periodic inspections of the disposal (the Spanish authorities). Art.14- to keep a record of the quantity, nature
and origin of the waste. The fact that the accident occurred and that Boliden-Apirsa
had all the necessary permits, leads us to the two conclusions that either
the transposed Spanish legislation was inadequate or that the relevant
Spanish or Andalucian authority did not enforce this aspect of the Directive.
Permit requirements Article 10 of Dir.91/156 came into force in 1993.
It required undertakings, which stored or tipped their own waste, to be
supervised by the competent public authorities. Amongst other things,
Dir.91/156 was attempting to ensure that there was a high level of protection
and effective control with regard to the authorisation and inspection
of undertakings that carry out waste disposal and recovery. It would seem illogical that a mine, which started
to operate without a permit, would be exempted indefinitely. As such it
is assumed that the supervisory requirements ought to have been met. According
to Art.9 of Dir.75/442, Boliden-Apirsa should have obtained a permit for
the disposal of the sludge in the tailings pond. The permit would cover
"the types and quantities of waste, the technical requirements, the
security precautions to be taken, the disposal site, the treatment method".
"If the intended method of disposal is unacceptable from the point
of view of environmental protection" it would be refused (Art. 9(2).
Art. 9(1) states that the permit must implement the provisions of Art.4,
i.e. "measures necessary to ensure that waste is recovered or disposed
of without harm to human health (...) or methods which could harm the
environment..." The proximity of Doñana ought to have been
taken into account by the permit. Article 11 of Dir.75/442 permits Member States to
exempt establishments from a permit requirement so long as they carry
out their own waste disposal at the place of production. This derogation
is permitted only if, per Art. 11(1.b), the competent authorities adopted
general rules for the activity, the types and quantities of waste and
conditions under which the mining activity could be exempted. Member States
are obliged to register these establishments and inform the EU Commission
with regard to the general rules that they have adopted. The Commission
never received communication from Spain concerning general rules regarding
the disposal of wastes from mining activities (36). It must be assumed
that they did not use the derogation possibility. As such the above mentioned
permit requirements would have been applicable.
Periodic inspections Competent regional authorities (Andalucian) had
an obligation to make periodic inspections of Boliden-Apirsa’s disposal
activity (Art. 13 of Dir.91/156). Nevertheless, it gives discretion to
the Member State to decide what constitutes a periodic inspection. Toxic and dangerous waste Directive 78/319 (37) defined as toxic and dangerous
any waste containing, or contaminated by, the substances or materials
listed in its Annex: of such a nature, in such quantities or in such concentrations
to constitute a health risk. Tailings pond waste could be considered to
fit within this vague definition (38). Directive 82/501 (39) and Dir.96/82
(40) imposed measures on certain industrial installations to prevent accidents,
like emergency plans off-site and on-site, information of the adjacent
population or monitoring requirements for the public authorities. However,
Art.2 Directive 82/501 excludes from its field of application: "extraction
and mining activities"(No.4) and "installations for the disposal
of toxic and dangerous waste which are covered by Community Acts in so
far as the purpose of those Acts is the prevention of major accidents"
(No.5). Furthermore, waste in landfills and waste coming from the activity
of the mining industry were excluded from the application of Dir.96/82
by Art. 4(f) and (e). Thus, Directives with preventative aims were not
applicable.
Integrated Pollution Prevention and Control The IPPC Directive (41) covers the overall environmental
impact of the production process, i.e. air, water and soil pollution,
generation of process residues, use of energy. Its focus is on prevention
rather than "end-of-pipe" abatement. All installations covered
by Annex I are required to obtain operating permits from the competent
authorities in the Member States. For "everyday pollution",
permits must contain emission limit values or equivalent parameters. These
shall be based on the use of Best Available Techniques (BAT) (42). Besides,
permits must include provisions that deal with other conditions, like
those related to start-up, leaks, malfunctions, momentary stoppages and
definitive cessation of operations, where there is a risk that the environment
could be affected. According to the Directive the Aznalcóllar dam
activities could probably come within paragraph 2.5(a) of Annex I: "installations
for the production of non-ferrous crude metals from ore, concentrates
or secondary raw materials by metallurgical, chemical or electrolytic
processes". However, the European IPPC Bureau (43) has indicated
that the Aznalcóllar mine will not come within the remit of the
directive as: a) its mining processes to concentrate the ore does not produce the crude metal. b) its mining concentration processes involve physical separation (floatation, sedimentation) and no chemical reactions. c) acidification in tailings dams occurs as a natural
decomposition of sulphite. Another possibility is that, as there is no production
taking place, the dam’s operation may still fall within the remit
of the Directive and be regarded as a landfill per category 5.4 of Annex
I: "landfills receiving more than 10 tonnes/day or with a total capacity
exceeding 25,000 tonnes, excluding landfills of inert waste". Some
reports produced by the Commission are of the opinion that the Aznalcóllar
dam would fit that definition. (44) Article 2(g) of the Landfill Directive (99/31/EC)
(45) states that: a landfill means a waste disposal site for the deposit
of the waste onto or into land. Storage of waste prior to recovery or
treatment for a period less than three years as a general rule and storage
of waste prior to disposal for a period of less than one year are excluded
from the definition of a landfill. Therefore, it ought to fit were it not for its exclusion
in Art .3(3): without prejudice to Directive 75/442/EC Member
States may declare at their own option, that the deposit of non-hazardous
waste, to be defined by the committee established under article 17 of
this Directive, other than inert waste, resulting from prospecting and
extraction, treatment and storage of mineral resources as well as operation
of quarries and which are deposited in a manner preventing environmental
pollution or harm to human health can be exempt from the provisions in
Annex I, point 2, 3.1, 3.2 and 3.3 of this Directive. This exemption for mining waste came into being
due to the Swedish Government, who pushed it through at the Environmental
Ministers Conference in December 1997 (46). In the IPPC Directive, a distinction is made between
new or substantially changed installations and existing installations.
For the former category, all provisions of the Directive apply since October
1999. For the latter, Member States have until October 2007 to ensure
compliance. Unfortunately, it was not in force in 1998.
Environmental Impact Assessment (EIA) The EIA Directive 85/337 (47) entered into force
in Spain in 1988.EIA is an interactive process designed to assess the
environmental impact of new developments in advance of their taking place
in order to mitigate the adverse environmental impacts of the proposed
development to the point where the project becomes environmental acceptable.
The Los Frailes mine was subject to an EIA in 1995 (48) which should have
taken into consideration the significant effect the mining construction
or its activities would have on Doñana. After the incident had taken place, the action of
putting the contaminated earth into the tailings pond constitutes disposal
per Dir.75/442 and required an EIA. Were it to be considered disposal
of toxic and dangerous waste, it would come under Annex I (9). If not,
it would probably come under Annex II 11(e) for sludge deposition sites.
At the very least the authorities were under obligation to check whether
the disposal of the contaminated sludge required an EIA per Art.2. An EIA was conducted before the reopening of the
mine in 1999, which was heavily criticised by the Spanish NGO´s
(49) as it did not take into consideration long term conservation objectives
of Doñana. The root of the problem with the EIA process in
Spain lies in the broad terms and flexible measures contained in the Directive.
For instance it permits Members States to decide which projects will be
regarded as having "significant effect" on the environment (Art.1).
The guidance in Art. 2(1) only states that "significant effect"
depends on the nature, size or location of the project. It gives Members
States the right to designate competent authority or authorities responsible
for co-ordination of the process and making final decisions. In Nations
where both central and regional administration share competence, EIA ought
to be a highly effective preventative tool. The contrary has taken place
in Spain. EIA is mandatory for Annex I projects (Art.4). However,
Member States are free to determine which Annex II projects require assessment
on a case by case or by reference to thresholds or criteria. Another questionable
area is with regard to the information that needs to be supplied in the
EIA process. Annex III of Dir.85/337 lists the information to be supplied
by the developer, while Art. 5(2) refers to the provision of the less
comprehensively required information. The latter does not refer to alternatives
or to the assessment of likely effects on the environment, but to the
data required to identify them. Annex III is far from perfect as it is
silent with regard to the cumulative effects of the projects or to technical
and economical reasons for selecting the location. The amending Directive
97/11 attempted to deal with this issue in Annex IV by taking out the
word "where appropriate". However, instead of making this Annex
the only requirement necessary to be taken into consideration by the developer,
it too gives the developer the possibility of providing less detailed
information (Dir.97/11 Art. 5(3)). A Report on Directive 85/337 stated that the among
the provision which Members States considered ambiguous and difficult
was the issue of the amount of information needed to be supplied by the
developer (50). The Commission when drafting Dir.97/11 ought to have provided
one provision regarding information need to be supplied. Thus, resolving
the problem rather than perpetuating it. Finally, Art.6(3) states the requirement of making
information available to the public and that the public concerned should
have an opportunity to express their opinion. It is argued that where
there is strong political pressure favouring development, the authorities
could apply a very narrow interpretation of the terms "concerned
public" and "expression of opinion". It could for instance
result in an opinion given after the decision has been made, contrary
to the spirit of the Directive as stated in the preamble "to take
(...) into account at the earliest possible stage in all the technical
planing and decision making stage." It follows that the discretion given to the Member
States concerning: Annex II projects; competent authorities; information
to be supplied in the EIA process and public participation, set the conditions
to endanger the wetland.
Discharges into the aquatic environment Discharge is defined as the introduction into water
of contaminating substances (51). Directive 76/464 and its daughter directives
fix maximum emission limit values for discharges of dangerous substances
into waters (52) in particular for cadmium (53) and mercury (54). These
fixed levels of emissions per cubic meter of wastewater are differentiated
according to the emitting installation and permit required. One could
assume that the Directive intended to regulate intentional release of
discharge (55). However, the Directive does not define the concept of
direct and indirect discharge. If the wording in Art. 1(d) and (e) were
to be taken from a common sense legal approach, the result would mean
strict liability (56) regardless of whether the act was deliberate or
accidental. Thus the "accidental" discharge of the toxic sludge
into the River Guadiamar will have infringed Dir.76/464 and its daughter
directives.
Groundwater protection The aim of Dir.80/68 (57) is the protection of groundwater
against pollution by certain dangerous substances and had come into force
in 1986 in Spain. The dangerous substances, which come within this Directive,
include zinc, copper, chromium, lead, arsenic, cadmium and mercury (58).
Member States were obliged to carry out investigations, before disposal
or tipping of dangerous substances, which might lead to direct or indirect
discharge (59) into the groundwater. This investigation will include "examination
of the hydro-geological conditions of the area concerned, the possible
purifying powers of the soil and subsoil and the risk of pollution and
alteration of the quality of the groundwater" (Art. 7). Such an investigation
would have been necessary even though the tailings pond existed when Directive
80/68 came into force due to the fact that "discharges of the substances
in lists I or II already occurring at the time of notification of this
Directive, the Member States may stipulate a period not exceeding four
years after the entry into force of the provisions referred to in Art.
21(1), on expiry of which the discharges in question must comply with
this Directive"(Art. 14). Thus, the Spanish authorities had an obligation
to make investigation as mentioned in Arts 5 and 7.
Habitat protection The centrepiece of the European Union’s ambitious Biodiversity Strategy is the Natura 2000 network of European protected sites. The legislation that means to deliver this ecological network is the Habitat Directive (60). Once a SAC is placed on the EC Commission list, the Member State must: * establish priorities for the maintenance or restoration
?Art.4(4) * management plans which correspond to the ecological
requirements of the site ?Art.6(1). * avoid the deterioration of the natural habitats
and disturbance of the species ?Art.6(2). * conduct an appropriate assessment of the implication for the site of any project not directly connected with or necessary to the sites management, but which is likely to have significant effect on it ?Art.6(3). * undertake surveillance of the habitats ?Arts 9
and 11. The environmental assessment in Art. 6(3) is a cause
for concern as it is site specific and its focus is on conservation, rather
than the significant effect of the project. Furthermore, the vagueness
of the Directive (61) seems to indicate that it applies to new projects
not existing ones. Far worse still is that it could lead to duplication
of EIA, which might cause the less stringent one (in this Directive) being
taken into consideration. Another cause for concern is the possibility
per Art. 6(4) that a Member State may permit a project with damaging implications
for a site to be carried out for imperative reasons of overriding public
interest so long as compensatory measures are taken to ensure that the
overall coherence of Natura 2000 is protected (e.g. habitat restoration)
(62). This goes contrary to the decision of the European Court of Justice
in the Leybucht Dykes (63) case. Furthermore, Art. 16 states that if no
satisfactory alternative exists (and the derogation is not detrimental
to the maintenance of the populations of the species concerned at a favourable
conservation status in their natural range) Member States may derogate
from the provisions of Arts 12, 13, 14 and 15(a) and (b) the article that
specify the methodology required for the species protection. Thus, instead
of having a Directive with a high level of protection for the environment,
what we have ended with is one that represents a dramatic reassertion
of member states sovereignty over their natural resources (64). Therefore, the assumptions made by WWF and other
environmental NGO´s, that Doñana Nature Reserve by being
on the Spanish SPA list (it was designated on 24 February 1988 (65)) meant
that the Spanish Ministry of Environment was under an obligation to balance
the negative economic and other non-ecological factors against conservation
objectives is a fallacy. The authorities simply had to use the magic words
"overriding public interest" (in this case also meaning that
several hundred jobs would be created in a economically depressed zone)
and the question as to why a tailings pond containing toxic substances
should be built disappeared.
The Structural Funds European Community aid consist of Structural Funds
and Cohesion Funds. The Structural Funds aim at promoting economic and
social cohesion in the Community and are subject to common administrative
arrangements. They are governed by six Council Regulations 2080/93/EEC
to 2085/93/EEC (66). They set forth four basic principles: the targeting
of resources on specified objectives, including development and structural
adjustment of regions whose development is lagging behind; partnership
of relevant authorities at national level, regional, and local level;
programming through the use of planning documents to guide expenditure.
Regulation 2081/93 deals with the tasks of the Structural
Funds, their effectiveness and co-ordination of their activities between
themselves and with the operations of the European Investment Bank and
the other existing financial instruments. Art. 7(1) of this regulation
states that "measures financed by the Funds (...) shall be in conformity
with the provisions of the Treaty, with instruments adopted (...) with
Community policies (...) including (...) environmental protection".
In Reg. 2082/93 Art. 23(1) it is stated that the
Member States have an obligation to inform the Commission with regard
to the description of management and control systems to ensure the efficient
implementation of operations and shall regularly inform the Commission
of the progress of administrative and judicial proceedings. Article 23(2)goes
on to say that the Commission may carry out spot checks of the operations.
Article 24(2) states that "the Commission, may reduce or suspend
assistance in respect of the operation or measure concerned if the examination(..)
or part of an interim payment if it finds that expenditure concerned is
linked to a serious irregularity which has not been corrected and that
immediate action is needed". One might argue that Arts. 7 and 24
are complementary: all funding needs to respect Community legislation
with respect to the environment. From the above it could be assumed that the environmental
considerations of the Regulations act as an interface between environment
and economic development (67). The reality is that the Commission bases
its assessment of whether or not to release funds on the EIA of the respective
project (68), which in Spain is a flawed process. The Regulation speaks
about the possibly of spot checks, but monitoring is viewed principally
as a financial check rather than an evaluation of the impacts of projects
and programmes" (69). The assessment of the problems of a given project
are left to complaints made to the Commission by environmental NGOs or
EU citizens or questions/petitions filed with the European Parliament.
These might be regarded as classic cases of closing the stable doors after
the horses have bolted. Unfortunately, the effects on the environment
are not reversible. This system has enabled a situation where a company
like Boliden-Apirsa, whose activities have serious consequences to the
environment (70), to receive public aid (national plus European Regional
Development Fund) in the framework of the first part of the running of
the Incentivos Regionales (1994-99) (71). It was only after the accident
and criminal allegations were made that the Commission applied Art. 24(2)
of the Regulation and denied the firm's request for a second aid. As Boliden-Apirsa
was found not guilty, it is unlikely that they will have to pay any money
back.
Cleaning-up costs: co-financing
Spain is the beneficiary of the Community Cohesion
Fund, under Regulation 1164/94, (72) which is based on Art. 174 of the
EU Treaty (old 130(r) (2)). Art.1 of this Regulation gives a basic outline
of what types of projects can be funded but does not define what exactly
is meant by "project". Environmental projects are included by
virtue of Art. 3, states what kinds of projects the fund "may provide
assistance for". After the Aznalcóllar accident both the national
and regional governments allocated emergency funding for the clean up
operations. Some of the initial funding for the clean up came from the
EU Social Fund due to the health risks associated with the toxic waste.
The vague criteria of the Regulations may allow
the Fund to intervene, as the clean up process is to correct the ecological
harm. That being said, there is an equally good possibility that co-financing
of the clean up process will be prevented by virtue of the fact that it
will conflict with the polluter pays principle in Art. 174 (2) EU Treaty.
The polluter pays principle is ambiguously explained
in the EU Treaty. The definition is to be found in the first action programme
on the environment adopted in 1973 (73) and from the EC Council Recommendation
regarding cost allocation and action by public authorities on environmental
matters (74). The principle has come to mean that a public body will not
have to bear the cost of environmental harm where a private polluter is
responsible. Article 8 of Regulation 1164/94 clearly states that projects
that are co-financed by the Fund must comply with Community environmental
law and policy. This argument is further strengthened by the fact that
EU Treaty includes the integration principle in the Art. 6. Therefore,
it would seem that it would not be possible obtain co-financing of the
clean up operation through the Cohesion Fund.(75) What if the clean up
operation were to be included within a project whose focus is on reparation
of the damage caused, albeit from a wider ecological perspective? Would
it, then, be possible to have the Fund contributing to it? In Spain two supposedly ecocentric schemes have
been initiated to restore the ecological system of the Doñana area.
These are the Doñana 2005, initiated by the Spanish Government,
aiming to restore the area’s hydrological system (waterways), and
the Green Corridor strategy by the Junta de Andalucia, whose aim is to
create an ecological corridor along the banks of the River Guadiamar,
from the Sierra Morena Mountains to Doñana National Park. Critics
of the projects have labelled them as being politically driven (76); having
different conceptual framework (compartmentalised management of the hydraulic
component versus ecosystem management) (77); not really attempting to
implement a strategic policy of sustainable development (78); lacking
in co-ordination between National and Regional Government and agencies
at regional level (79). The Green Corridor project has the backing of
the EU as representatives of the Commission and the Council were part
of the working group that created the fundamentals of the strategy and
are supposedly funding part of the cost (80). The Spanish government proposes
to finance Doñana 2005 largely through Spain’s 2000-2006
entitlement under the EU Structural Funds (81). Contrary to what has been stated in the Mining Environmental
Management Journal (82), Boliden-Apirsa has only paid 10% to 25% of the
expenses due (83). It is doubtful whether Boliden-Apirsa will pay any
further amounts owed, as it has recently filed an application in court
for commencement of "suspensión de pagos" proceedings
(84). Furthermore, Boliden-Apirsa recently announced that unless it found
financial backing, it plans to close operations by October 2001. As such
it is not surprising then that the Spanish Regional and Central Government
are applying to the European Union for co-financing of the clean up programme
albeit under a "wider ecological programme". What is beyond
belief is that it is at the expense of one of the so-called tenets of
the European Union Environmental Policy and the basis of the Regulation
1164/94 namely, the "polluter pays principle". Disposal cost of the waste What would have been the situation had the Commission
refused to fund the projects mentioned above? I argue that Art. 15 of
Dir.75/442(n.3) might be the answer: in accordance with the polluter pays principle,
the cost of depositing of Waste must be borne by - the holder of the waste,
who has had the waste handled by a waste collector or by an undertaking
as referred to in Art. 9, and /or ? the previous holders or the producer
of the product from which the waste came. The different options offered in this provision
seem to indicate that it is addressed to the Member States and asks them
to organise the costs of waste disposal along the principles laid down
in Art. 15. The Article does not specify the responsibility for the costs
of waste disposal, but states that the Directive, must conform with the
general principle of Art. 174(2) i.e. polluter-pays. This means that the costs for the disposal of the
waste from the mining activity must be borne by Boliden-Apirsa and not
by the Spanish authorities. Furthermore, the discharge of the toxic sludge
and the subsequent clean up of the contaminated soil is part of "disposal
costs" as mentioned in Art. 15 (85). Liability for harm to the environment On 27 December 2000, Judge Celia Belhadj-Ben Gómez
gave her ruling on the Aznalcóllar case (86) stating that there
was no indication of criminal liability with regard to the failure of
the dam and the toxic spillage (87). An expert report prepared on behalf
of the Court of Sanlúcar la Mayor had stated that the dam failure
was due to the fact that during its construction and enlargement the builders
did not take into account two factors crucial for the stability. The first
was the fragility of clay soil and risk of triggering a dam failure. The
second was the high pressures of the water in the clay foundation (88).
Boliden-Apirsa has repeatedly stated that the accident was to be attributed
to the force majeure. A report on the causes of the dam failure published
on 29 December 1999 by the regional government of Andalucia (89) stated
that the accident was caused by a failure of the Blue Marl formation beneath
the impoundment and fell in line with Boliden-Apirsa's position in saying
that the failure was unforeseeable. This might well be true were it not for the fact that between 1992 and 1997 several complaints had been made to SEPRONA (the Environmental Criminal Investigative Police Unit) and to the various courts in the area regarding both the high levels of toxic chemical that were allegedly seeping out of the Aznalcóllar mine into the river Agrio and the possibility that the dam was unstable (accusation made by M. Aguilar Campos). There was even a complaint made to the EC Commission, the investigation of which was terminated owing to Spain sending information showing that the problem had been resolved. Would the judgement have been different if Spain
was a signatory to an international treaty with regard to civil liability
for damage caused to the environment (90) or if there existed Community
legislation on liability for damage caused to the environment? It is doubtful that, even if Spain had been a signatory
to the Lugano Convention, it would have been implemented it. The Convention
is claimed to contain controversial provisions and to be too limited in
its scope. Moreover, on a practical basis, the Spanish Government might
have found it difficult to implement the Convention due to the advanced
nature of its requirements (91). In 1993 the Commission issued a communication on
the EC - wide problems of environmental liability (92), which was followed
up on 9 February 2000 by the White Paper (93) on environmental liability
(94). The White Paper proposes that there should be strict liability both
for traditional damage to people and property and damage to the environment
- defined as biodiversity and contaminated sites. Liability would arise
only when damage was caused by an activity or product regulated by existing
EC laws, and, in respect of biodiversity, only where damage was caused
to sites designated under EU directives on birds and wildlife habitats.
On the face of it, it would seem that the White Paper offers a solution
to the problem of pollution to unowned space. However, it is argued by
the European Employers' Federation that the White Paper would reduce competitiveness
by creating uninsurable risks and would be a charter for litigation by
giving locus standi to NGO´s. Furthermore, they are opposed to the
idea that companies should be liable for damage to the biodiversity, and
the fact that according to the White Paper, companies would not be able
to claim operating within permit regulation and complying fully with legislation
as a defence (95). The mining industry association - Euromines - responded
to the White Paper by arguing that the Commission ought instead to add
mining to the list of industry sectors regulated by the IPPC Directive
and amend the definition on waste as, in their opinion, there is a loophole
in the current definition that makes its emissions appear far greater
than they actually are (96). Academics also have difficulties with the White
Paper’s proposals stating that it fails to take into consideration
the limits of liability and liability insurance; that strict liability
is an ineffective way to make the polluter pay, where liability does not
serve deterrence efficiency (i.e. it does not go beyond a fault based
regime); it provides insurance at excessive costs (97);and that it does
not harmonise the conditions for rectifying environmental damage, where
national legislation remains patchwork (98). Regardless of the final form of the White Paper,
I argue that the real task is the extent to which the legislation will
enable and encourage the public to attain effective access to national
courts with a view to securing remedies that will rectify damage to the
environment (99). Liability for compensation to individuals This accident has not only caused the contamination
of the land adjacent to the tailings pond, but also land belonging to
farmers in the area. Taking the issues step by step, the first question
is whether farmers can rely on EU law to obtain compensation from Boliden-Apirsa.
The second question is under what conditions would EU law allow them to
claim damages from the operator of the mine or from the Spanish authorities.
Litigants in national proceedings can only benefit
from the direct effect of Directives in actions against the state or an
emanation of the state (100). Directives will not be directly enforceable
against private individuals ?i.e. not horizontally directly effective.
The European Court of Justice has been consistent in maintaining that
they can only be enforceable against the state or an emanation of the
state and that they are not capable of being directly effective against
individuals (101). As such, the farmers may not rely on the possible incorrect
implementation of Directives by Spain, as a basis of a claim for damages
against Boliden-Apirsa as it would lead to a horizontal effect of the
direct-effect theory. There is no specific EU legislation on environmental
liability and, furthermore, Spain is not party to the Lugano Convention
(102). As such, there could be no direct claim for compensation against
Spain. Let us, however, assume that toxic sludge ?i.e. waste? comes within
the definition of the product liability Dir.85/374 (103). The European
Court of Justice is of opinion (as is Krämer (104)), that waste is
"goods" per Art. 28 of the EU Treaty (105) Dir.85/374 defines
defective as not offering the safety, which a person is entitled to expect.
The question is, does it follow that the defective tailings pond containing
the toxic sludge ? i.e. "the goods" ? makes the product defective?
It has been argued that the dam is not the product itself, but part of
the land and, as such, does not make the sludge unsafe (106). In any case,
Dir.85/374 only grants compensation for "consumer" damage -
i.e. economic damage that a person suffers in his or her private capacity.
Thus loss of income or profit, such as loss of crops, cannot be compensated.
The European Court of Justice has developed the
theory that under certain conditions, a Member State may also be liable
for damage suffered to private persons (107). Specifically, Member State
and emanations of the State are liable for breach of EU law under the
direct effect theory. To put it in another way, a citizen might have an
action for damages against a government for failing to implement a European
Directive (108). There is a proviso to the aforementioned situation. If
a Directive, which has been incorrectly implemented, confers discretion
as to how its objective is to be achieved (109) that provision will not
have direct effect. However, it could be argued that real test is that
the provision of a particular Directive has been constructed in such a
way that it is as though it were contained in a Regulation. I submit that
Art. 4 of Dir.75/442 might fit this test. The wording in the Article states
that: Member States shall take the necessary measures
to ensure that waste is recovered or disposed of without endangering human
health and without using processes or methods which could harm the environment,
and in particular: without risk to water, air, soil and plants and animals,
without causing a nuisance through noise or odours, without adversely
affecting the countryside or places of special interest. It seems to be of a general nature and does not
quite fit the definition of a Directive per Art. 249 of the EU Treaty.
The ECJ, in case C-236/92, decided the contrary, owing to the fact that
it was a framework provision, and does not fulfil the conditions (unconditional
and sufficiently precise) for direct effect (110). In the present case it has been shown that there
are several Directives which at the time had been incorrectly implemented
by Spain: EIA Directive (111), the Waste Directive (112) and the Habitat
Directive. However, these Directives impose duties upon the state to either
create pollution control machinery, to designate special areas of protection
without prescribing specific standards or enforcement methods, as well
as a margin of local discretion as to the implementation methods. Therefore,
Directives with this type of wording will not confer a right and cannot
be the basis of a case against the State. One might argue that, with regard
to Dir.80/68 (113), there is sufficient certainty in that it may confer
rights on the farmers whose lands have been damaged. Summary From the above it follows that: a) mining waste in the Aznalcóllar tailing pond comes within the remit of Dir.75/442. b) the disposal activity required a waste permit, which had to take into consideration precautionary measures. c) the Spanish public authorities were obliged to provide periodic inspections of the waste disposal activities, but as to what constituted "periodic" was left to their discretion. d) the waste in the tailings pond does not fall within the remit of the Directives that regulated toxic and dangerous waste. e) the IPPC Directive was not in force. f) the aim of the EIA Directive, i.e. to ensure that information regarding environmental consequences is gathered and taken into account in the process of issuing project authorisation in order to prevent environmental damage, is flawed due to the broad terms and discretion afforded to Member States. g) the toxic discharge infringed Dir.76/464. h) an investigation into the hydrogeological conditions was required in order to avoid any groundwater contamination. i) although the Habitat Directive was applicable, the derogations nullify its protection objectives. j) EC Structural funds financed operations that had obvious adverse environmental effects. k) although the contaminated land did not qualify for Community Structural and Cohesion Funds per "the Polluter pays principle", the wider ecological programmes will facilitate funds to repair the damage caused. l) even if a directive regarding liability for harm to the environment existed, it is doubtful that the goal of being a deterrent to causation of environmental harm would be realised. m) under European Union environmental law the farmers
may have a claim for damages against the mine owners or the Spanish public
authorities using Dir.80/68. The second part of this article will provide a critical analysis of the Spanish legal system, relevant preventative and sanctioning legislation and the actors who participated in the Spanish environmental policy with regard to the case. Analysis of Judgement of the Aznalcóllar Case; concentrates on the main implication flowing from the analysis of the EU and Spanish legislation. The second part will also contain the author's conclusion and suggestions. ------------------------------------------------------------------------
Notas (1) Scott, J (1998) (2) Ziegler, A.R (1996) (3) Wise Uranium Project [June 2000] (4) WWF Report [1999] "Toxic Waste Storage Sites in EU Countries. A Preliminary Risk Inventory". (5) Peregil, F (1998). (6) BOE nº257, 27 October 1969. (7) BOE nº11, 12 January 1979. (8) 1979 OJL103/1 Art.4(2) (9) EU (29 January 2001) Palacios-Alberti,B. Confirmed
that Doñana was listed as a SPA on 24/2/1988. (10) Principa-EQE, Report (1999) "Structural
Stability of the Aznalcóllar Tailings Dam," It was on of several
studies presented as evidence in the investigation as to the cause of
the dam failure. (11) Bolaños, A (8 April 2000) El Pais newspaper: A report was prepared by Antonio Gens and Eduardo Alonso, from the Polytechnic University of Catalonia in Barcelona. (12) Montero Sandoval, JM [2000] (13) Sasoon, M [July 1998] (14) Sasoon, M [July 1998] pg.8 (15) Balkau, F [1993] (16) Montero Sandoval, JM (2000) (17) CEPA [June 2000] (18) Montero Sandoval, JM (2000) (19) Order dated June 20, 1996 of the Head of Industry,
Energy and Mining Service, of the Department of Industry, Trade and Tourism
of Junta de Andalucía. (20) Order dated June 20,1997 of the Magistrates
Court of First Instance No.2 Sanlúcar La Mayor. (21) Lindahal, Lars-Äke [1998] (22) Bull, Housser & Tupper (29 January 2001) Sibley J.M (23) Scott, J (1998) (24) Ziegler, A.R (1996) (25) Commission of EC(2000) "Promoting sustainable development..". (26) Dir.75/442 on waste (1975) OJL194/47, amended by Dir.91/156 (1991) OJL78/32. (27) Dir.75/442(note3) Annex I, Q11. (28) Dir.91/156 (1991) OJL78/32. (29) Dir.91/689 On Hazardous Waste (1991) OJL377/20. (30) Krämer L (2000), pg. 245 (31) EU (15 July 2000) Paquot, A. stated that with regarding to mining waste Dir.91/156, 99/32 and 99/31 apply. (32) Baia Mare Task Force Report (December 2000) pg.25. (33) Decision 94/3 which establishes a list of waste per Art.1(a) of Dir.75/442 (34) Decision 94/904 on lists of hazardous waste according to Article 1(4) of Directive 91/689 (1994) OJL356/14 (35) Dir.91/689 On Hazardous Waste (1991) OJL337/20 (36) Krämer L (May 1999) pg.18. (37) Dir.78/319(1978) OJL84/43 Art.1(b) (38) Krämer L (2000), pg. 248 (39) Dir.82/501 (1982) OJL230/1 (40) Dir.96/82(1996) OJL10/13 (41) Dir.96/61(1996) OJL257/26 (42) EU (15 July 2000) Paquot, A., BAT is not binding, however there are plans to launch a BAT on tailings ponds by 2002. (43) EU (22 August 2000) Kroll A. (44) Commission of EC (2000) "Safe Operation of Mining Activities..." COM(2000)644 final. (45) OJL 182 of 16 July 1999, p.1 (46) Ends Report (17 December 1997). (47) Dir.85/337(1985) OJL170/40 (48) Official Bulletin of Seville Province of 5 August 1995 (49) SOE/Birdlife, Greenpeace, WWF/ADENA and Ecologistas en Acción submitted written comments to the provincial government of Sevilla against the request by Boliden-Apirsa for a re-opening authorisation. (50) Commission of the European Communities (1993) Report from the Commission of the Implementation of Dir.85/337/EEC. (51) Dir.76/464(note27),Art.1(d) (52) Dir.76/464(1976) OJL129/23 (53) Dir.83/513(1983) OJL291/1 (54) Dir.82/176(1982) OJL81/29 and 84/156(1984) OJL76/49 (55) Krämer L (May 1999) pg.20 feels that this means that Dir.76/464 and its daughter directives could only apply to deliberate, intentional discharges, and not to accidental discharges (56) Bird R, Osborn´s Concise Law Dictionary(1983) pg. 313. (57) Dir.80/68(1980) OJL20/43 (58) Dir.80/68(note 30) annexes I and II (59) According to Art.1(2.b) and (2.c), a direct discharge is the introduction into groundwater without percolation through the ground or subsoil, an indirect discharge is the introduction into ground water after percolation through the ground or subsoil. (60) Dir.92/43/EEC (1992) OJL206/7 on the conservation of natural habitats and of wild fauna and flora. EU (29 January 2001) Palacios-Alberti, B: confirming that Doñana is a SPA. (61) Krämer, L (May 1999) (62) Scott, J (1989) pg.112. (63) Commission v Germany [1991] ECR 1 883. (64) Scott, J (1989) (65) EU(29 January 2001) Palacios-Alberti, B. (66) OJL193 (67) Clement K & Bachtler J (1997) (68) EU (5 February 2001) Nychas A., (69) Baldock D, (1990) pg.8 (70) Balkau, F (1993) (71) EU(17 February 2001) McKenna, R., (72) Regulation 1164/94 OJL130/1 On the Establishment of a Cohesion Fund. (73) OJC 112, 20.12.1973,p.1 (74) Council Recommendation 75/436/ EURATOM,ECSC,EEC of 3 March 1975,Annex,para.2;OJ L 169, 29.6.1987, p.1 (75) Krämer L (May 1999) pg.22. (76) WWF Report [November 2000] (77) Santamaría, L, & Amézaga, J., (May 2000) (78) WWF Report [November 2000]. (79) WWF Report [November 2000]. (80) Consejeria de Medio Ambiente, (April 2000), Green Corridor Project pg.23 (81) Congreso de los Diputados [ 1999] (82) Sasoon M (July 1998) (83) Santamaría, L, & Amézaga, J (May 2000) (84) Ends Report (3 October 2000) stated that -Boliden Ltd had announced that its subsidiary Boliden-Apirsa has filed a court application for commencement of "suspension de pagos" proceedings equivalent to Canadian CCAA and US chapter 11 proceedings. This means that Boliden-Apirsa is insolvent. (85) Krämer L (May 1999) pg.21 (86) Juzgado De Primera Instancia e Instruccion No Dos Sanlúcar La Mayor Sevilla, Case No DP 763/98-2 (87) El Mundo 27 Dec. 2000. (88) Bolaños, A. (8 April 2000) El Pais newspaper: Report was prepared by Antonio Gens and Eduardo Alonso, from the Polytechnic University of Catalonia in Barcelona. (89) The report was prepared by Centro de Estudios y Experimentación (CEDEX) - a technical body within the Ministry of Public Works and the Industry. (90) Lugano, 21 June 1993, E.T.S. 150; 32 I.L.M 1228(1993) signed by Cyprus Finland, Greece, Italy, Liechtenstein, Luxembourg and the Netherlands. (91) Poli, S (1999) (92) Commission, Green Paper on Remedying Environmental
Damage (1993) OJC149/12 (93) Hereinafter WP. (94) Commission, White Paper on Environmental Liability COM(2000) 66 final. It proposes that there should be strict liability both for traditional damage to people and property and damage to the environment- defined as biodiversity and contaminated sites. Liability would arise only when damage was caused by an activity or product regulated by existing EC laws, and in respect of biodiversity, only where damage was caused to sites designated under EU Directives on Birds and Wildlife Habitats. (95) UNICE Report (2000) (96) Ends Report (18 May 2000) (97) Bergkamp, L (2000) (98) Poli, S (1999) (99) Wilde, M (2000) (100) Marshall v Southampton Area Health Authority (Case 152/84) (1986) ECR 723 (101) Dori v Recreb Srl (Case 91/92) (1994) ECR I-3325 (102) Lugano, 21 June 1993, E.T.S. 150; 32 I.L.M 1228(1993) signed by Cyprus Finland, Greece, Italy, Liechtenstein, Luxembourg and the Netherlands. (103) Dir.85/374 (1985) OJL210/29 on approximation of laws , regulations and administrative provisions of Member States concerning liability for defective products. (104) Krämer, L (2000), pg.123, (105) Court of Justice , Case c-2/90, Commission
v Belgium, ECR 1992 p I-4431 (106) Krämer, L (May 1999) pg.23 (107) Betlem, G (1996) (108) Marshall v Southampton Area Health Authority
(Case 152/84) (1986) ECR 723, Faccini Dori (1994) ECR I-3325). (109) Comitato di Coordinamento per la Defesa della
Cava v Regione Lombardia (1994) 1 ECR 1337. (110) Jans, J.H (1996) (111) In 1998 the Commission mentioned that the
transposing legislation in Spain did not conform with Community Law (Commission
Monitoring application of Community law 15th Report (1997) (1998) OJC250/1
at pg.175). (112) The new 1998 Waste Act in Spain included remediation. (113) Krämer, L (1991) |