The baia mare and baia borsa accidents: Cases of severe transboundary water pollution

Environmental Policy and Law

Volumn 31, Issue 2, 2001, Pages 106-111

  Lucas, Cédric ^a  

^a Stanford University   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

BIODIVERSITY; CYANIDES; DISASTERS; ECOSYSTEMS; POTABLE WATER; RIVERS;

TRANSBOUNDARY POLLUTIONS;

WATER POLLUTION;

ACCIDENT; CYANIDE; POLLUTION INCIDENCE; TRANSBOUNDARY POLLUTION; WATER POLLUTION;

ROMANIA;

EID: 0035306153     PISSN: 0378777X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (58)

1. The Permanent Secretariat of the International Commission for the Protection of the Danube River (ICPDR), Regional Inventory of Potential Accidental Risk Spots in the Tisa catchment area of Romania, Hungary, Ukraine & Slovakia, Vienna, August 2000. This inventory is available at http://europa.eu.int/comm/ environment/enlarg/home.htm.
2. United Nations Environment Programme, UNEP/Office for the Co-ordination of Humanitarian Affairs, OCHA, Assessment Mission, Report on the cyanide spill at Baia Mare, Romania, March 2000, p. 8.
3. Id., p. 6.
4. The European Commission, Safe operation of mining activities: a follow-up to recent mining accidents, COM(2000) 664 of 10.23.2000, pp. 5, 10.
5. However, some time (about ten hours) was lost between the time the local Environment Protection Agency of Baia Mare received notification of the spill from Aurul S.A. and the time the local Romanian Waters Authority (Water Resources Management Baia Mare) was informed. The reasons for this delay are not known. The establishment of a good operational and prompt early warning system is essential. Supra n. 2, p. 18.
6. Id., p. 45.
7. The European Commission, supra n. 4, p. 5.
8. Supra n. 2, p. 45.
9. However, environmental experts fear that some rare and unique species of flora and fauna have been endangered, e.g. the five ospreys living in the Hortobagy National park in Hungary. The European Commission, supra n. 4, p. 5.
10. Report of the International Task Force for Assessing the Baia Mare Accident, December 2000, pp. 7-11. This report is available at http://europa.eu.int/ comm/environment/enlarg/home.htm.
11. Id., pp. 12-15.
12. Id., p. 12.
13. Supra n. 2, pp. 3-4.
14. The European Commission, supra n. 4, pp. 6-7.
15. Supra n. 10, p. 10.
16. Id., pp. 22-23.
17. Astrid Boos-Hersberger, Transboundary water pollution and state responsibility: the Sandoz spill, in Golden Gate University School of Law - Annual Survey of International & Comparative Law, Volume IV, Fall 1997, pp. 104-105.
18. The duty of notification is expressly mandated by the Rio Declaration. Principle 18 requires States to "immediately notify other States of any natural disasters or other emergencies that are likely to produce sudden harmful effects to the environment of those States." Principle 19 demands that "States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith." Rio de Janeiro Declaration on Environment and Development, June 13, 1992, Principle 18 and Principle 19.
19. Boos-Hersberger, supra n. 17, p. 131.
20. The limited territorial sovereignty principle points out that a State has an affirmative obligation not to allow major pollution to cross its borders, Boos-Hersberger, supra n. 17, p. 112.
21. The absolute territorial sovereignty theory is more appealing to upstream states than to downstream states. It holds that a riparian state is free to do as it chooses with the water within its territory, without regard for any effects on the downstream states. Id., p. 113.
22. The principle of absolute territorial integrity declares that a downstream state may demand the continuation of the full flow of the river from an upper riparian state, free from any diminution in quantity or quality.
23. Id., pp. 113-114.
24. G.A. Res. 2669, U.N. GAOR, 25th Session, Supp. No. 28, at 127, 1, UN Doc. A/8202 (1970).
25. The full text of the Convention is available at the UN/ECE's website http:/ /www.unece.org. The first Conference of the Parties to the Convention on the Transboundary Effects of Industrial Accidents was held on 22-24 November 2000 in Brussels at the invitation of the European Commission. Convention secretary Sergiusz Ludwiczak admitted that eight years between the Convention's agreement and entry into force was a long time, but claimed a new impetus for implementation following Baia Mare. Parties agreed to create a joint working group on preventing accidental water pollution incidents together with the UN/ECE Convention on the Protection and Use of Transboundary Watercourses and International Lakes. Parties welcomed the proposal first made by Switzerland in February for a civil liability protocol to be developed jointly under the two conventions. Other developments at the meeting included agreement on an international accident early warning system. Parties also promised collaboration to identify industrial installations handling hazardous substances.
26. Id.
27. The full text of the Convention is available at http://europa.eu.int.
28. Boos-Hersberger, supra n. 17, pp. 126-127.
29. Supra n. 2, pp. 17-18.
30. The Convention for the Protection of the Danube addresses the settlement of disputes under Article 24: "If the parties to the dispute are not able to settle the dispute ... by negotiation ... the dispute shall be submitted for compulsory decision to one of the following means of peaceful settlement: - The International Court of Justice - Arbitration in accordance with Annex V to this Convention" Annex V states the conditions for the composition of the Arbitral Tribunal. But in this Convention, there is no mention of environmental liability or the "polluter pays" principle.
31. (Source: Agence France Presse) Hungary said on 5 September 2000 that it was ready to settle with the Australian mining company Esmeralda Exploration Ltd following the Baia Mare disaster, while the firm denied it was seeking an out-of-court settlement with the Hungarian government: "We are in no position to seek a settlement," said Hall Chadwick, administrator of Esmeralda. The problem is that, following the accident, Esmeralda has been put into administration. Administration is a form of bankruptcy under which a company or its creditors appoint administrators to establish if the company can emerge from its difficulties or should be liquidated. On 15 December 2000 the Hungarian government commissioner Janos Gonczy told reporters that the EU-led report released would provide a reference point for Hungary's 29.3 billion forints ($97.89 million) case against Esmeralda Exploration Ltd. The legal proceedings began in January 2001 and the Hungarian representative on the EU task force said that the report was accurate.
32. Supra n. 2, p. 9.
33. The Regional Environmental Centre for Central and Eastern Europe, Strategic Environmental Issues in Central and Eastern Europe, Volume 1, Regional Report, Budapest, August 1994, p. 9.
34. Id.
35. Supra n. 2, p. 49.
36. Id, pp. 10-11.
37. Supra n. 10, p. 10.
38. The European Commission, supra n. 4, p. 11.
39. Supra n. 10, p. 30.
40. Id., p. 28.
41. Official Journal (OJ) L 194 of 25 July 1975, p. 39.
42. OJ L 78 of 26 March 1991.
43. This Directive came into force on 16 July 1999 and will be effective by 16 July 2001. OJ L 182 of 16 July 1999, p. 1.
44. Other requirements which would have helped to prevent the accident: - Appropriate measures must be taken to control precipitation and prevent it from entering the landfill body. - The storage of waste on the site must be done in such a way to ensure the stability of the waste and the associated structures, particularly to avoid slippages. - The landfill of liquid waste is forbidden. All liquid waste must be pretreated before being landfilled. - A monitoring programme for the control of water and gas is laid down. The monitoring results must be reported to the competent authorities.
45. OJ L 257 of 10 October 1996.
46. The European Commission, supra n. 4, p. 15.
47. Id, p. 16.
48. Supra n. 10, p. 2.
49. The European Commission, White paper on environmental liability, COM(2000) 66 of 02.09.2000, p. 5.
50. Directive 79/409/EEC establishes a general system of protection for all species of birds that can be found living in the wild in the European territory of the Member States which is covered by the Treaty. The purpose of the Directive is to protect and manage these species and to regulate the hunting and capture of such species. OJ L 103, 4.25.1979, p. 1.
51. Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora. Article 3: "1. A coherent European ecological network of special areas of conservation shall be set up under the title Natura 2000. This network, composed of sites hosting the natural habitat types listed in Annex I and habitats of the species listed in Annex II, shall enable the natural habitat types and the species' habitats concerned to be maintained or, where appropriate, restored at a favourable conservation status in their natural range. The Natura 2000 network shall include the special protection areas classified by the Member States pursuant to Directive 79/409/EEC..." OJ L 206,07.22.1992, pp. 7-50.
52. Covering only environmental damage under the European regime, while leaving liability for traditional damage entirely to the Member States, might result in inequitable results; for instance, no or less reparation for damage to health than for environmental damage caused by the same accident. The European Commission, supra n. 49, p. 16.
53. "Better access to courts for non-governmental organizations and individuals would have a number of helpful effects in relation to the implementation of Community environmental law. First, it will make it more likely that, where necessary, individual cases concerning problems of implementation of Community law are resolved in accordance with the requirements of Community law. Second, and probably more important, it will have the general effect of improving practical application and enforcement of Community environmental law, since potentially liable actors will tend to comply with its requirements in order to avoid the greater likelihood of litigation." The European Commission, Implementing Community environmental law, COM(96) 500, p. 12.
54. In Aarhus, Denmark on 23-25 June 1998 at the "Environment for Europe" Conference, 35 countries and the European Union signed the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. The signature of this Convention shows the importance for European countries of a legal framework and effective and appropriate mechanisms to secure public access to environmental information, to facilitate and encourage public participation, inter alia through environmental impact assessment procedures, and to provide effective public access to judicial and administrative remedies for environmental harm. Katy Brady, New Convention on Access to Information and Public Participation in Environmental Matters, in Environmental Policy and Law, Volume 28, No. 2, 1998, pp. 69-75. Katy Brady, Aarhus Convention Signed, in Environmental Policy and Law, Volume 28, No. 3-4, 1998, pp. 171-190.
55. In Aarhus, Denmark on 23-25 June 1998 at the "Environment for Europe" Conference, 35 countries and the European Union signed the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. The signature of this Convention shows the importance for European countries of a legal framework and effective and appropriate mechanisms to secure public access to environmental information, to facilitate and encourage public participation, inter alia through environmental impact assessment procedures, and to provide effective public access to judicial and administrative remedies for environmental harm. Katy Brady, New Convention on Access to Information and Public Participation in Environmental Matters, in Environmental Policy and Law, Volume 28, No. 2, 1998, pp. 69-75. Katy Brady, Aarhus Convention Signed, in Environmental Policy and Law, Volume 28, No. 3-4, 1998, pp. 171-190.
56. The European Commission, supra n. 49, p. 22.
57. Id., p. 31.
58. Id., p. 14.