Mining waste: the Aznalcóllar tailings pond failure
A case study of the European Union and Spanish legislation
with respect to the protection of the environment from Mining Activity.
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.
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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)