Aznarcollar Mine Accident

Role: NGOs

Important Facts:
Large toxic spill after the rupture of a large tailings dam containing the effluents of a copper and zinc mine
which produces pyritic waste rock, owned by Boliden APIRSA
Failure of dam was due to an earth slide in the base of the dam
5,000,000 m3 of acid sludge was sent into the Guadiamar River, containing high concentrations of arsenic,
zinc, lead, copper, talium and cadmium WATER POLLUTION
During the clean-up operation that followed, the collected sediment was deposited in a former open-pit of the
mine
The authorities approved the use of the open-pit based on a technical assessment from the Spanish ITGE,
which concluded that there was an acceptably low risk of groundwater contamination.
o Drive to develop the Andalusian region has led the regional and national authorities to be repeatedly
lenient with the implementation of environmental standards for the regions mines and industries,
including generous subsidies to contaminating industries and lack of rigour in technical
inspections.
Most likely cause of the accident was defective construction and maintenance of the tailing dam
o Led to the over-pressuring of water-rich products within the tailings stock itself or onto the underlying
recent sediments.
Important issue: whether the design and construction of the dam were adequate in the first place

Possible Arguments & Case Law:

Gross negligence in the design and construction of the dam by Boliden APIRSA Argument in tort

Waste
Our first point of claim would be to call for respect of the Directive 75/442/EEC on waste, particularly the polluter pays
principles as laid down in Article 15 of that Directive. This is a clear application of the case of Paul Van de Walle v
Texaco Belgium SA, where the fact situation and principles are similar to our present scenario.

Breach of Directive 75/442/EEC on waste (international environmental law) Application of the case of
Paul Van de Walle v Texaco Belgium SA
o Article 1 of Directive 75/442 provides (a) waste shall mean any substance or object in the categories
set out in Annex I which the holder discards or intends or is required to discard, (b) producer shall
mean anyone whose activities produce waste and/or anyone who carries out pre-processing, mixing
or other operations resulting in a change in the nature or composition of this waste, (c) holder shall
mean the producer of the waste or the natural or legal person who is in possession of it.
o Annex I entitled Categories of waste refers in heading Q4 to materials spilled, lost or having
undergone other mishap, including any materials, equipment etc, contaminated as a result of the
mishap, in heading Q7 to substances which no longer perform satisfactorily (e.g. contaminated
acids, contaminated solvents, exhausted tempering salts, etc.), in heading Q14 to products for which
the holder has no further use (e.g. agricultural, household, office, commercial and shop discards, etc)
and, in heading Q15, to contaminated materials, substances or products resulting from remedial
action with respect to land.
o Article 15 of Directive 75/442 states: In accordance with the polluter pays principle, the cost of
disposing of waste must be borne by: the holder who has waste handled by a waste collector or by an
undertaking as referred to in Article 9 and/or the previous holders or the producer of the product from
which the waste came.
Issue 1: Whether the contaminated sludge containing arsenic, zinc, lead, cooper, talium and cadmium
which are spilled unintentionally and cause groundwater contamination can be considered as waste
under Article 1(a) of Directive 75/442
o Principles (laid down in Van De Walle)
The verb to discard must be interpreted in the light of the aim of Directive 75/442 which, in
the wording of the third recital in the preamble, is the protection of human health and the
environment against harmful effects caused by the collection, transport, treatment, storage
and tipping of waste.
When the substance or object in question is a production residue, that is to say, a product
which is not itself wanted for subsequent use and which the holder cannot economically re-
use without prior processing, it must be considered to be a burden which the holder seeks to
discard.
Directive 75/442 would be made redundant in part if substances which cause contamination
were not considered waste on the sole ground that they were spilled by accident.
o As such, accidentally leaked acid sludge which pollutes groundwater is not a product which can be
reused without processing. It is thus a substance which the holder did not intend to produce and
which he discards.
 o If the acid sludge which causes contamination is not considered to be waste on the ground that it was
spilled by accident, its holder would be excluded from the obligations which Directive 75/442 requires
Member States to impose on him, in contradiction to the prohibition on the abandonment, dumping or
uncontrolled disposal of waste.
Issue 2: Whether Boliden APIRSA, the owner of the copper and zinc mine which produces pyritic
waste rock may be considered to be the producer or holder of such waste within the meaning of
Article 1(b) and (c) of the Directive
o The Directive 75/442 distinguishes between practical recovery or disposal operations, which it makes
the responsibility of any holder of waste, whether producer or possessor, and the financial burden of
these operations, which, in accordance with the principle of polluter pays, it imposes on the persons
who cause the waste, whether they are holders or former holders of the waste or even producers of
the product from which the waste came
o The acid sludge spilled by accident as a result of the rupture of the tailings dam had been produced
by Boliden APIRSAs cooper and zinc mine. Bolden APIRSA is therefore both the possessor and
holder of the waste, and is thus considered its holder within the meaning of Article 1(c).

Water
Breach of Water Framework Directive (Directive 2000/60/EC of the European Parliament and of the Council
of 23 October 2000 establishing a framework for Community action in the field of water policy)
o This Directive is to contribute to the progressive reduction of emissions of hazardous
substances to water. Common principles are needed in order to coordinate Member States' efforts
to improve the protection of Community waters in terms of quantity and quality, to promote
sustainable water use, to contribute to the control of transboundary water problems, to protect aquatic
ecosystems, and terrestrial ecosystems and wetlands directly depending on them, and to safeguard
and develop the potential uses of Community waters. Common definitions of the status of water in
terms of quality and, where relevant for the purpose of the environmental protection, quantity should
be established. Environmental objectives should be set to ensure that good status of surface water
and groundwater is achieved throughout the Community and that deterioration in the status of waters
is prevented at Community level.
o Article 8: Member States shall ensure the establishment of programmes for the monitoring of water
status in order to establish a coherent and comprehensive overview of water status within each river
basin district:
- for surface waters such programmes shall cover:
(i) the volume and level or rate of flow to the extent relevant for ecological and chemical status and
ecological potential, and
(ii) the ecological and chemical status and ecological potential;
- for groundwaters such programmes shall cover monitoring of the chemical and quantitative status,
- for protected areas the above programmes shall be supplemented by those specifications contained
in Community legislation under which the individual protected areas have been established.
o Article 16: The European Parliament and the Council shall adopt specific measures against pollution
of water by individual pollutants or groups of pollutants presenting a significant risk to or via the
aquatic environment, including such risks to waters used for the abstraction of drinking water. For
those pollutants measures shall be aimed at the progressive reduction and, for priority hazardous
substances, as defined in Article 2(30), at the cessation or phasing-out of discharges, emissions and
losses. Such measures shall be adopted acting on the proposals presented by the Commission in
accordance with the procedures laid down in the Treaty.
Application of Case where Commission takes Austria to Court over failure to protect water quality on
the Schwarze Sulm river http://europa.eu/rapid/press-release_IP-14-448_en.htm)
o The European Commission is taking Austria to Court for its failure to ensure adequate protection for
the Schwarze Sulm river in Steiermark. In the Commission's view, the construction of a proposed
power plant would cause a serious deterioration in the quality of the river, which is one of the longest
undisturbed rivers in the region. The Commission is of the view that the regional authority failed to
respect the water quality requirements of the Water Framework Directive when it authorised the
hydropower project in 2007. Indeed, the permit in question was revoked by the Austrian Federal
Ministry of Environment in 2009, but Austria's constitutional court dismissed that revocation on purely
formal grounds in 2012. The permit therefore came back into force and can no longer be challenged
before a national court. This led the Commission to open infringement proceedings in 2013, on the
grounds that the permit for the power plant is not in line with the requirements of the Water
Framework Directive. As building work now appears to have begun on the project, the Commission is
referring the case to the EU Court of Justice, on the recommendation of Environment Commissioner
Janez Potonik.

Priority Substances
Breach of the Priority Substances Directive (Directive 2008/105/EC of the European Parliament and of the
Council of 16 December 2008)
 o The Priority Substances Directive is a consequence of the Water Framework Directive, the main piece
of legislation protecting Europe's waters. The framework directive aims to achieve high environmental
quality standards in various areas by set deadlines (surface waters, for instance, have to achieve
good chemical status by 2015), and the Priority Substances Directive refines these requirements by
means of further specific measures for pollution control and environmental quality standards.
o The Water Framework Directive establishes a list of 33 priority substances and 8 other pollutants
which have been shown to be of major concern for European waters. To adequately protect the
aquatic environment and human health, the quality standards are expressed as maximum allowable
concentration and annual average reflecting both acute and chronic effects due to short and long-term
exposure. Member States must ensure compliance with these standards.
Application of Case where Commission asks three Member States to comply with EU water quality
legislation (http://europa.eu/rapid/press-release_IP-11-94_en.htm?locale=en)
o The Priority Substances Directive protects the environment and human health by setting limits for
certain substances and groups of substances that are known to pose a substantial risk to the aquatic
environment.
o Member States had to bring into force the laws, regulations and administrative provisions necessary
to comply with the Priority Substances Directive by 13 July 2010, and inform the Commission they
had done so. As Belgium, the Czech Republic, and Estonia did not notify the Commission of all the
implementing measures in time, a letter of formal notice was sent on 20 September 2010. Since the
legislation has still not been adopted, a reasoned opinion is being sent. If these Member States do not
take appropriate action within two months, the Commission may refer them to the European Court of
Justice.