Pollution Threats from Toxic Waste Storage Sites

Agenda Items 2, 5 and 11 PRAM 99/2/9-E (L) Original: English only OSPAR CONVENTION FOR THE PROTECTION OF THE MARINE ENVIRONMENT OF THE NORTH-EAST ATLANTIC PROGRAMMES AND MEASURES COMMITTEE (PRAM) LUXEMBOURG: 3-7 MAY 1999 ______

Pollution Threats from Toxic Waste Storage Sites - Suggested Action to Prevent Unregulated, Accidental Pollution from Metal Mining Activities

Presented by World Wide Fund For Nature

Background 1. Reference is made to PRAM 99/2/8-E where the relevance of metal mining activities, associated tailing lagoons and toxic waste storage sites as sources of OSPAR Priority Chemicals such as cadmium and lead is obviously ignored and/or underestimated. 2. With regard to discharges, emissions and losses of hazardous substances to the marine environment in general, WWF is concerned about the lack of consideration given to mining activities and toxic waste storage sites under the work (programme) of the OSPAR Working Group on Point Sources (POINT; cf. PRAM 99/05/01-E; cf. PRAM 99/11/01-E) in contrast to the fact that these activities and sites are significant sources of riverine and marine pollution. 3. Spurred by the recent toxic spills from such sources along the southern coast of Spain (see summary at Annex 1 - also see SIME 99/4/11-E (L), ASMO(1) 99/2/6-E), WWF International has committed the report “Toxic waste storage sites in EU countries – a preliminary risk inventory”. The executive summary of this report is at Annex 2. Full copies will be provided at the PRAM meeting. A related press release is at Annex 3. 4. Based on conclusions from this report, WWF has developed a number of suggestions for action at the EU level to prevent unregulated, accidental pollution from metal mining activities (Annex 4) which fall to the remit of OSPAR as well.

Action requested 5. PRAM is invited to consider WWF’s conclusions and recommendations and amend the work programme of its third tier working groups accordingly with a view to developing environmentally safe standards for the metal mining industry and related industrial practices.

______1 OSPAR Commission PRAM 99/2/9-E (L) Annex 1

Wednesday, 6 January 1999

DARK NEW YEAR FOR SOUTHERN SPANISH NATURE Release of toxics was predictable and preventable, says WWF Brussels, Belgium - Local controls and European Union laws failed once more when a dam broke in southern Spain and thousands of cubic metres of toxic acid were released into the sea, said WWF today. In the night from 31 December 1998 to 1 January 1999, an acid water lagoon broke near the city of Huelva in southern Spain, releasing a cocktail of heavy metals. 50 km west of the famous nature reserve Coto Doñana, the Rio Tinto flows into the Atlantic Ocean. The river borders important nature reserves and an important industrial area. There the two Spanish companies Fertiberia and Foret produce artificial fertilizer - and a daily waste of 10.000 cubic metres acid effluent, including sulphuric acid, fluorine, iron, cadmium, chromium and arsenic. This is being discharged into a 70 hectare waste lagoon with a storage capacity of about 1.000.000 cubic metres. The lagoon is very close to the sea and the dam was eroded by 4 metre high waves in a storm, so releasing its contents. Operators are working on the dam, and the firms have stopped their production. Fertiberia denied having neglected the lagoon "which had been designed in the USA". “This incident is similar to the tragic event affecting Coto Doñana last April in that it was predictable and preventable”, says Jane Madgwick, WWF’s European Freshwater coordinator. “European laws and regulations controlling these storage lagoons are painfully weak, and ever and ever again the lagoons are built in environmentally sensitive areas. It seems likely that the siting, construction, maintenance and monitoring of the storage lagoon has been inadequate here - as in the case of the tailings lagoon at Aznalcóllar.”***) The Andalucian government had promoted the development of this new, large storage lagoon as an environmental solution to the previous problems of leaching of these toxics to the river system. A local environment group, "Ecologistas en Acción", had advised several times on the risks of that lagoon. Now, official sources say that 50.000 m3 flowed into the ocean while EA says it was more than 500.000 m 3. Although there is no official report on the environmental damage, there are likely to be immediate effects of the acid water on fish and longer term effects of the heavy metals which can accumulate in humans and sea life through the food chain. International commitments made through the OSPAR Convention aim to stop chemical pollution of the Atlantic. ______***) On 25 April 1998, a storage dam at the Aznalcóllar mine (Andalucia, Spain) broke releasing toxic sludge. The mine produces zinc-, lead- and copper-concentrates and is owned by the Swedish-Canadian company Boliden Apirsa. Arsenic, cadmium, thallium and other metals are also present in lower concentrations. According to information of Boliden-Apirsa, 3 mio. tonnes of sludge and 4 mio. m3 acidic water were discharged. The spill covered approximately 5,000 ha including parts of the Doñana protected area. This is one of the largest protected areas in the EU, and a Ramsar and World Heritage Site. It is recognized as a special area of conservation under the EU Habitats Directive. The toxic spill also affected the Guadiamar river.

______2 OSPAR Commission PRAM 99/2/9-E (L) Annex 2 Toxic waste storage sites in EU countries A preliminary risk inventory

V.M. Sol, S.W.M. Peters and H. Aiking IVM Report number: R-99/04 February 1999 World Wide Fund For Nature Vrije Universiteit amsterdam – Institute for Environmental Studies

Executive Summary Sparked off by the toxic spill affecting the Doñana in 1998, the purpose of this study was to get a first impression of the environmental risk of toxic waste storage in above-ground lagoons, within the fifteen European countries plus Switzerland. The study focused on metal mining activities (excluding ore processing and refining) and their impacts on sensitive aquatic ecosystems. No information was found about other major incidents of the scale that occurred at Los Frailes, affecting the Doñana wetland in southern Spain (during the last decade). However, information on major accidents from industrial installations is not readily available to the public. Literature searches revealed that there is evidence of significant pollution problems caused by leaks and spillages of acid mine water from tailing lagoons in Sweden, Spain, Italy and Portugal. There is also considerable evidence of pollution from abandoned metal mines, for example in the UK. It was revealed that there is no central database of active or abandoned mines, location of tailings lagoons or relevant international and national legislation. It is therefore currently difficult to estimate the potential scale of the environmental and human risks from spillages and leaks across Europe. Information was collected in this study by searching relevant literature and contacting relevant organisations in individual countries. The use of tailings ponds could only be confirmed for Sweden and for some mining locations in Italy, Ireland, Portugal and Spain. Finland and Greece also have significant mining activities; those of Austria and France continue to decline. The study has concluded that there is no effective European legislative framework to protect the environment and people from pollution resulting from mining activities. Large differences exist between the planning procedures, permissions and pollution control procedures between the Member States. Moreover, national requirements in Environmental Impact Assessment concerning siting, construction methods, methods of storage and disposal, monitoring and risk assessment vary widely and local authorities have considerable discretion in giving permission for mining activities. Wetlands (including streams, rivers, floodplains, lakes, marshes, estuaries etc.) are particularly vulnerable to the influence of mining activities as mines require a nearby water supply for processing the mined rock. Heavy metals and the acid water leaching from mine tailing lagoons and abandoned mine sites cause severe and long-term damage to wildlife and people. Many of the metals, such as cadmium, lead and zinc accumulate through the food chain. Comparison of the locations of known major mining sites with the location of Ramsar sites (designated as internationally important wetlands) in Europe, revealed some potentially hazardous situations in southern Spain and Sweden. The Ramsar Convention, the Natura 2000 network (EC Habitats and Birds Directives) and the forthcoming EC Water Framework Directive should all encourage the identification of external threats to wetland systems and stimulate preventative and remedial actions. However, these mechanisms are relatively indirect and the Water Framework Directive is still being debated. There is likely to be considerable variation in the implementation of these Directives by Member States. It is concluded that in order to protect the European environment from Doñana type calamities and from chronic pollution problems, there is a need for a more comprehensive risk analysis and for legislation and technical standards on all mining activities at the supranational EU level. This legislation should ensure that the relevant authorities take full account of the vulnerability of the environment within the catchment of proposed mining sites.

______3 OSPAR Commission PRAM 99/2/9-E (L) The first step to an overall risk analysis is a time-consuming process of a country-by country approach towards all data owners, including national authorities, counties, local authorities, regulating agencies and NGOs. A pilot study has shown through that this approach would be complemented and speeded up by careful analysis of satellite remote sensing data.

PRESS RELEASE

WWF EUROPEAN POLICY OFFICE 36 Avenue de Tervuren - B12 B-1040 Brussels - Belgium tel: +32 2 743 8806

19 April 1999 WWF DEMANDS URGENT EU ACTION TO STOP TOXIC WASTE POLLUTION Brussels, Belgium - The location of lagoons of toxic waste from metal mining in several EU countries, and evidence of leaks and spillages which cause serious environmental damage, is revealed in a new study published today by WWF. Urgent EU action to improve regulation of mining activities and storage of waste products is demanded by WWF. WWF is releasing the study to coincide with the first anniversary of the disaster at Los Frailes mine in Southern Spain where the wall of a lagoon of waste full of heavy metals broke - releasing millions of cubic metres of toxic water and sludge into the famous Doñana wetland. The study, Toxic waste storage sites in EU countriesreveals important new information:  Evidence of significant pollution problems caused by leaks and spillages from toxic waste lagoons associated with metal mining in Sweden, Spain, Italy and Portugal and from abandoned metal mines, for example in the UK.  The location of toxic waste lagoons associated with major metal mines in Italy, Spain, Sweden, Ireland and Portugal. Major sites of metal mining in Finland, Greece, Austria and France are identified but the method of waste disposal is unknown.  European legislation on the management of waste from metal mining is not clear.  The almost complete absence of public information on the location of toxic waste lagoons and their human and environmental risks. Jane Madgwick, WWF European Freshwater Officer, said Heavy metals pose a serious hazard to people, wildlife and the environment. Mining needs water so nearby rivers and lakes are most at risk. Today WWF reveals the location of major lagoons of toxic waste from mining and exposes cases of toxic leakages and spills. What worries me is that there are many more toxic waste lagoons and incidents of pollution which remain unknown to the public and to the authorities. WWF has just scratched the surface of a very serious problem. Tony Long, Director of WWFs European Policy Office, commented Urgent action is needed at a European level. First, the Commission must compile a full list of lagoons of toxic waste from metal mining, known spills and polluted sites. Second, a European Action Programme is needed to assess the risks, improve the construction of these lagoons and develop safer methods of waste disposal. Third, EU law needs to be revised, clarified and strengthened to prevent spills and leaks of toxic waste from metal mines. Finally, European Environmental Liability law must cover all damage caused by pollution from these lagoons. More information: Julian Scola, WWF EPO Press Officer, tel +32 2 743 8806

19 April 1999

WWF’s Report on “Toxic waste storage sites in EU countries” SUGGESTED ACTION AT THE EUROPEAN UNION LEVEL TO PREVENT UNREGULATED, ACCIDENTAL POLLUTION FROM METAL MINING ACTIVITIES

WWF EUROPEAN FRESHWATER PROGRAMME Contact person: Eva Royo Gelabert European Water Policy Officer

WWF EUROPEAN POLICY OFFICE 36 Avenue de Tervuren - B12 B-1040 Brussels – Belgium

direct telephone: (+32 2) 743 88 14 switchboard: (+32 2) 743 88 00 fax: (+32 2) 743 88 19

______6 OSPAR Commission PRAM 99/2/9-E (L) SUMMARY

WWF considers that the following action is needed at the EU level in order to ensure a high level of protection of human health and the environment, not only from pollution caused by heavy metal spillages from tailings lagoons such as occurred in Doñana, but also from chronic metal pollution from tailings lagoons leakages and abandoned mines.

INVENTORY 1. To draw up an EU comprehensive (public) inventory of (active and abandoned) metal mines and (active and abandoned) tailings lagoons, existing measures for environmental management and monitoring of tailings lagoons, known spillages and significant leakages from tailings lagoons, pollution levels caused by waste from mining activities and areas affected by such pollution.

ACTION PROGRAMME 1. To develop a Community Action Programme on “Responsible Mining Waste Disposal”, in partnership with the mining industry and environmental organisations, for the assessment of the specific environmental and human health risks from tailings lagoons and waste from metal mining activities in general at the Community level, based on the above-mentioned inventory, and taking into account, inter alia, the vulnerability of the receiving (wetland) environment.

The programme should also comprise action directed towards developing and promoting: Emergency Plan guidelines; EU-wide technical standards on tailings containment; “safe” mine closure phases; projects for the environmental re-habilitation of mines and tailings lagoons; and “safer” mining waste disposal methods, such as re-emplacement of mining waste in the mine void.

EVALUATION & 1. To evaluate the reasons why existing EU legislation on waste (Framework Directive on Waste) A NEW SET UP as well as other EU legislation requiring environmental protection such as that on environmental impact assessment (EIA Directive), nature conservation (Birds and Habitats directives) and regional policy (Structural Funds), has not been successful in preventing pollution from tailings lagoons and metal mining activities in general.

2. To set up a specific Community legislative framework on “Mining Waste Management” which should exploit the opportunities offered by the above-mentioned legislation, and by other existing EU environmental legislative tools in the areas of waste (Hazardous Waste Directive: to include mining waste in the “hazardous waste list” so that it is subject to more stringent disposal requirements etc.), and control of major accident hazards (SEVESO Directive: to extend the scope of the directive to include mining activities).

3. This legislative framework on “mining waste management” should also make use of relevant measures from Community environmental legislation which are now in the pipeline in relation to water protection (draft Water Framework Directive: to “export” the river basin/catchment approach to planning for “good water status”, introduced by this directive, to all other relevant legislation) and environmental liability (draft White Paper: to establish binding rules in the area of liability for “biodiversity damage” from the outset)

IMPLEMENTATION 1. To ensure the implementation and enforcement of the relevant Community legislation at the & ENFORCEMENT national level, in particular environmental legislation. This means that the “legal unit” within DGXI of the European Commission should be provided with the necessary resources and technical/specialised staff.

ENLARGEMENT & 1. To involve accession countries in any EU action carried out to protect human health and the FUTURE ISSUES environment from accidental pollution from metal mining activities.

2. To consider broadening the scope of any action work following the suggestions made here for metal mining waste (i.e. Inventory, Action Programme etc.) to include other comparable waste such as waste from the fertiliser industry.

3. To try to ensure that any standards developed at EU level are transferred to mining activities elsewhere in the world.

______7 OSPAR Commission PRAM 99/2/9-E (L) Bearing in mind the following: The findings of the Report on “Toxic waste storage sites in EU countries”, commissioned by WWF1 in the aftermath of the pollution caused by the heavy metal spillage from the tailings lagoon of the Boliden mine “Los Frailes” in Aználcollar, southern Spain, on the Doñana wetland area on 25 April 1998.

That metal mining activity is of significant importance in four EU Member States (FI, GR, SE & ES) and that smaller amounts are mined in another four (AU, FR, IRL & PO). Furthermore, that abandoned mines occur in seven Member States (BE, DE, DK, IT, LUX, NL & UK) and that there are mine tailings lagoons (active and/or inactive) in Italy, Spain, Sweden, Ireland, Portugal and the United Kingdom.

That evidence of significant accidental pollution problems caused by leakages and spillages from mine tailings lagoons and by abandoned mines (acid mine streams) can be found in at least five EU Member States (ES, IT, PO, SE & UK).

The World Bank’s 1998 “Environmental Assessment of Mining Projects” which lists the potential detrimental impact of metal mining in general, both on human health and the environment, and rates the management of tailings as one of the most significant environmental threats from mining operations.

That aquatic systems such as wetlands (i.e. streams, rivers, floodplains, lakes, marshes, estuaries etc.) are particularly vulnerable to pollution from mining activities, as these are usually located near rivers or lakes given that water is both a vital raw material for the processing of mineral ore and a major waste stream.

That heavy metals and the acidic discharges from tailings lagoons and abandoned metal mines constitute a severe threat to human health and the environment. That heavy metals, in particular, are not only highly toxic but also bioaccumulative and persistent, and hence they have long-term - both acute and chronic - detrimental effects on the environment throughout the food chain.

The Treaty on European Union’s request that environmental protection requirements must be integrated into the definition and implementation of all Community policies and activities in order to promoting sustainable development.

That the European Union has competence over mining waste management (Framework Directive on Waste), but that Member State implementative measures have varied greatly in terms of the approach taken.

The “precautionary principle” and the principles of “preventive action” and of “rectification of the environmental damage at source” enshrined in the Treaty.

The RAMSAR Convention covering all aspects of the conservation and wise use if wetlands (i.e. streams, rivers, floodplains, lakes, marshes, estuaries etc.) to which all EU Member States are Contracting Parties, and which lays down a wetland risk-assessment framework for human impact, and requires the drawing up of national wetland policies as the key means for delivering “wise use”.

The OSPAR Convention for the protection of the marine environment of the North-east Atlantic to which twelve EU Member States and the European Commission are signatories, and which requires the Contracting Parties to adopt programmes and measures for the prevention and elimination of pollution from land-based sources, and to take preventive measures to minimise the risk of pollution caused by accidents.

The self-evident administrative, legal, economic and operational problems surrounding the cleaning up, restoration and prevention of further deterioration of the Doñana wetland area, which show that an integrated management plan with participation of all the relevant socio-economic actors needs to be developed in order to guarantee the efficiency of conservation measures in this or any other affected area.

The European Commission’s will to further consider the management of waste resulting from mining, quarrying and from the treatment of mineral as shown by DG XI’s invitation to tender published in OJ S 236, 5.12.1998.

WWF considers that the following action is needed at the EU level in order to ensure a high level of protection of human health and the environment, not only from pollution caused by heavy metal spillages from tailings lagoons such as occurred in Doñana, but also from chronic metal pollution from tailings lagoons leakages and abandoned mines.

1 To the Institute for Environmental Studies, Vrije Universiteit Amsterdam (IVM), February 1999

______8 OSPAR Commission PRAM 99/2/9-E (L) INVENTORY

1. To ensure that any study commissioned by the EU in order to assess the management of mining waste includes the drawing up of a Community-wide comprehensive (public) inventory of:

 active metal mines including location, quantification and nature of the mining waste produced, and name of the operating company;  abandoned metal mines including location, quantification and nature of the mining waste remaining in the area;  (active and abandoned) tailings lagoons including location, quantification and nature of the “contained” waste both in the water (quality) and the sediment, and structural evaluation;  environmental management measures directed to minimise the impacts of (active and abandoned) tailings lagoons;  provisions for environmental monitoring in association with tailings lagoons management;  known spillages and significant leakages from tailings lagoons;  known chronic and acute pollution levels caused by waste from mining activities;  areas affected by such pollution.

ACTION PROGRAMME

1. To develop and finance a Community Action Programme on “Responsible Mining Waste Disposal”, in partnership with the mining industry and environmental organisations, comprising action directed towards:

 assessing the specific environmental and human health risks from tailings lagoons, abandoned mines and waste from metal mining activities in general at the Community level, based on the above-mentioned inventory and taking into account, inter alia, the vulnerability of the receiving (wetland) environment;

 drawing up Emergency Plan guidelines, with response measures to be taken by both the mine operators and the relevant authorities in case of accidental spillages, for those sites identified as “high risk” in the above-mentioned assessment. These plans should also include an outline of possible long-term measures for the restoration of the affected environment;

 research, development and drawing up of EU-wide technical standards on tailings containment (including siting, construction, maintenance and monitoring). These would act as minimum standards for the construction of tailings lagoons. Furthermore, they would also be a reference for assessing the environmental impact resulting from the location and method of tailings disposal from quarries, opencast mining etc.

 developing criteria for “safe” mine closure phases including safe disposal of any remaining waste, rendering (decommissioning) of tailings lagoons etc.;

 remediation and environmental rehabilitation measures at (active or abandoned) mines where, inter alia, EU-wide technical standards on tailings containment are not met and/or where vulnerable environments are threatened. This should include the abatement of acid mine drainage from old metal mining activities;

 evaluation and promotion of metal mining processing and waste disposal methods with lower pollution risks than tailings lagoons, such as re-emplacement of mining waste in the mine void. This method requires long-term planning, but may only result in waste (tailings) disposed on the surface on a temporary basis until the staging of the mining process allows for it to be placed “back” into the mine.

______9 OSPAR Commission PRAM 99/2/9-E (L) EVALUATION AND A NEW SET UP

1. To evaluate why existing Community measures have not been successful in preventing pollution accidents/incidents from tailings lagoons, etc. and why there are so many differences at the Member State level regarding the management of mining waste. The main Community (direct and indirect) tools to prevent this type of accidental pollution are illustrated below in the context of the Doñana incident.

 Framework Directive on Waste. From the outset, it needs to be made clear that Council Directive 91/156/EEC2 on waste covers mining waste. There is a confusing reference in Article 2 to the exclusion of mining waste from the scope of the directive “(…) where [it is] already covered by other legislation”. However, there is no (other) specific EU legislation on mining waste, hence the directive does in fact apply to this type of waste. Furthermore, “residues from raw material extraction and processing” (i.e. tailings) are included under the “waste categories” listed in Annex I to the directive, and “surface impoundments” (i.e. mine tailings lagoons) are one of the waste “disposal operations” listed in Annex II.

The key point to make is that the Framework Directive on Waste requires in Article 4 that Member States dispose of “waste 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, and without adversely affecting the countryside or places of special interest”.

Spanish legislation has not been appropriate in relation to requiring enterprises to dispose of their waste in the correct manner, because of lack of transposition of the 1991 Framework Directive on Waste. Accordingly, the European Commission brought a case against Spain at the European Court of Justice. Last autumn the Spanish authorities informed the Commission that the 1991 Framework Directive on waste had been transposed on 21 April 1998 (to be effective 10 days later). The Doñana incident happened on 25 April 1998…

 Environmental Impact Assessment (EIA). Council Directive 85/337/EEC3 on the assessment of certain public and private projects on the environment, as last amended by Directive 97/11/EC4, requires the assessment of the impact resulting from the location and methods of tailings disposal from quarries, open-cast mining etc. However, there are no EU-wide standards for tailings containment and so each country has its own procedure.

The Boliden mine “Los Frailes” was subject to an EIA as shown by the official bulletin of the Seville province of 5 August 1995. The EIA did not stop the accident from happening. Furthermore, and despite concern expressed inter alia by several MEPs in the form of questions to the European Commission, mining activities at “Los Frailes” have now re-started. The Spanish authorities on the basis of another EIA, which was heavily criticised by Spanish environmental NGOs 5 in general and WWF in particular, have allowed this to happen. It appears that such an EIA is in breach of the Spanish regional EIA Regulation for the Andalusian Autonomous Community, given that: a) lacks a global assessment of the overall impact of the project, and b) lacks consideration of alternative proposals for a “cleaner production” at the site. It appears that the Spanish authorities did not make sure that all the elements for an EIA were included in the evaluation. They seem to be getting away with it…

 Nature conservation. [Habitats and Birds Directives]. Council Directive 92/43/EEC6, on the conservation of natural habitats and wild fauna and flora, aims at ensuring conservation of threatened habitats and species in the Community by establishing the Natura 2000 ecological network. The Doñana wetland area belongs to the Natura 2000 network since part of it has been designated as a Special Protected Area (SPA) under the Birds Directive7. In addition, the whole area (beyond current

2 OJ no L 78, 26.3.1991

3 OJ no L175, 5.7.1985

4 OJ no L 73, 14.3.1997

5 SEO/Birldlife, Greenpeace, WWF/Adena and “Ecologistas en Acción” submitted written comments to the provincial government of Sevilla against the request by Boliden Apirsa S.L. for a re-opening authorization

6 OJ no L 206, 22.7.1992

7 Directive 79/409/EEC on the conservation of wild birds, OJ no L 103, 25.4.1979

______10 OSPAR Commission PRAM 99/2/9-E (L) demarcations as Natural Park and National Park) will be designated as a Special Area for Conservation (SAC). This means that Article 6 of the Habitats Directive has applied since 1994, requiring “Member States to avoid the deterioration of natural habitats and the habitats of species as well as disturbance of the species for which the areas have been designated”. This latter provision can only be achieved by ensuring that activities inside and outside a Natura 2000 site are in compliance with the conservation objectives agreed for the site. Article 6 also requires that any developments “to have a significant effect on the (protected) site” are subject of a specific EIA of their implications for the nature conservation objectives of the site.

None of this seems to have been taken into consideration in the case of the Boliden mine “Los Frailes” which opened in December 1995, over one year after the entry into force of the Habitats Directive in Spain. This could be because of its perceived relative distance (50 km) to known protected sites such as the “Marismas del Guadalquivir”, which has not been an obstacle for this site to be subject of, first, chronic heavy metal pollution and, after the accident, of very serious acute heavy metal pollution. The new EIA carried out in view of the re-start of mining activities at “Los Frailes” contains some considerations on nature conservation, but was not carried out from the long-term perspective of achieving the nature conservation objectives of the protected site.

The Habitats Directive also lays down requirements for the protection of endangered species. In particular, Article 12 requests that “Member States take measures to establish a system of strict protection for the animal species listed in Annex IV in their natural range prohibiting deterioration of breeding sites or resting places”.

The Doñana wetlands are the natural range and both a breeding site and a resting place for several endangered species of animals such as the Iberian lynx, the Imperial eagle, certain fish and several migrating birds such as the black stork, the flamingo etc. A system for the strict protection of these species should not allow mining activities taking place at locations within and/or with influence on their natural range, unless they are developed in an appropriate manner ensuring that no damage to habitats or species will occur. Doñana is an especially sensitive wetland system where bodies of water are inter-connected, and where persistent and bioaccumulative pollution from heavy metals could affect whole populations of key species.

 Structural Funds. Council Regulation (EEC) No 2981/938, on the tasks of the Structural Funds and their effectiveness and on co-ordination of their activities etc., requests in Article 7 (compatibility and checks) that “measures financed by the structural funds shall be in conformity with the provisions of the Treaties (…) and environmental protection”. In addition, Article 24 (reduction, suspension and cancellation of assistance) of Council Regulation (EEC) No 2982/939, states that “the Commission may reduce or suspend assistance (…) in case of irregularity or a significant change affecting the nature conditions for the implementation of the operation (…)”.

The European Regional Development Fund (20.75 MECU) has been used (1994-1999) to co-finance operations in the Boliden mine “Los Frailes”, despite what is stated in Article 7 of Council Regulation (EEC) No 2981/93. Nevertheless, the funding was “frozen” in accordance to Article 24 of Council Regulation (EEC) No 2982/93 after the disaster (having received 9.71 MECU by 1997) thanks to the intervention of the European Commission. There are no plans for the immediate reinstatement of this funding, although the mining company Boliden is demanding it. Furthermore, Boliden may have to re-fund the moneys received if found guilty of causing the accident. The Commission should not allow the continuation of this funding until it has all the elements (see above) to carry out a comprehensive environmental and human health risk assessment from the mining activity at “Los Frailes”, and to monitor its development in order to make sure that “taxpayers” money is used adequately.

2. To set up a Community legislative framework that can effectively protect human health and the environment from pollution resulting from mining activities. This “mining waste management” framework should exploit the opportunities offered by the above-mentioned legislation, and by other existing EU environmental legislation in the areas of waste and control of major accident hazards. However, legislative measures in these latter areas need to be revised so that they can actually offer such protection as follows:

8 OJ no L 193, 31.7.1993

9 OJ no L 193, 31.7.1993

______11 OSPAR Commission PRAM 99/2/9-E (L)  Hazardous Waste List (Council Decision 94/904/EEC10 establishing a list of hazardous waste pursuant to Article 4(1) of Council Directive 91/689/EEC11 on hazardous waste). To include mining waste (i.e. “waste resulting from exploitation, mining, dressing and further treatment of minerals and quarry”) in the list under the same categories/headings featuring in the “European Waste Catalogue”12, in order to achieve more stringent requirements for the disposal of this type of waste. This inclusion is currently under consideration as shown by the Commission’s working document on the “proposal to amend the European Waste Catalogue including revisions to the Hazardous Waste List”. The inclusion is necessary in order to increase the protection currently offered by Community legislation with regards to pollution resulting from mining activities.

 SEVESO II Directive (Council Directive 96/82/EC13 on the control of major-accident hazards involving dangerous substances). To extend the scope of the directive - when it is next revised - in order to include “the activities of the extractive industries concerned with exploration for, and the exploitation of, minerals in mines and quarries and by means of boreholes” (now specifically excluded as shown in Article 4(e)). This inclusion would put in place a whole set of measures directed to prevent major tailings lagoons spillages and limit their consequences, including emergency plans, information to and consultation of the public, land-use planning, inspections, and administrative co-operation.

A key point to make is that information on major accidents from mining installations is not readily available. However, if mining activities were included in the SEVESO Directive the public will have more rights in terms of access to information as well as in terms of consultation. Thus under this directive, operators as well as public authorities have certain obligations to inform the public, not only on incidents/accidents but also in other areas. Furthermore, this information has to be both passive (permanent availability of information) and active (pro-active, i.e. brochures etc). Therefore, the inclusion of mining activities in the SEVESO Directive is necessary not only to prevent tailings lagoons spillages and limit their consequences, but also to breach the current lack of information on incidents involving tailings lagoons.

3. A legislative framework on “mining waste management” should also make use of relevant measures from Community environmental legislation, which are now in the pipeline in relation to water protection and environmental liability. However, care needs to be taken that proposed measures in those areas should actually offer the necessary protection against pollution resulting from mining activities, as follows:

 Draft Water Framework Directive14. This draft Directive (after the Common Position reached at Council on 11 March 1999) establishing a framework for Community action in the field of water policy - the Water Framework Directive - is long overdue and has been welcomed by all EU bodies. It requires a river basin (catchment) approach to planning for “good water (qualitative and quantitative) status”. In view of the Doñana incident, it is clear that this river basin approach needs to be reflected in all other relevant environmental legislation. Thus, for example, the environmental risks from waste from mining activities should be assessed from the point of view of their overall impact on the river basin where the mining activity would be carried out.

Member States have to draft river basin management plans for achieving “good water status” to a set timetable, on the basis , inter alia, of a review of the environmental impact of human activity within each river basin district. This review should necessarily include estimations of point source pollution from mining activities, and should also identify potential sources of accidental, chronic pollution such as tailings lagoons leakages. In the case of mining activities and “protected areas” for the conservation of habitats and species occurring within the same river basin, the monitoring programmes to be established by Member States should always be supplemented in order to monitor the extent and nature of any pollution arising from the mining.

The draft WFD prohibits direct discharges of pollutants into groundwater subject to certain provisions. Those mean that Member States15

10 OJ no L 356, 31.12.1994

11 OJ no L 377, 31.12.1991

12 OJ no L 5, 7.1.1994

13 OJ no L 10, 14.1.1997

14 Commission proposals: COM(97) 49 final, COM (97) 614 final and COM(98) 76 final

15 As above, this will be up to national law, and is a case of “permitted’ pollution (rather than “accidental”), but is is still worth mentioning it here

______12 OSPAR Commission PRAM 99/2/9-E (L) may authorise, specifying the conditions for, re-injection into the same aquifer of pumped groundwater from mines and quarries (Article 13(3g)). The conditions for this type of re-injection should provide for consideration of the need to require prior treatment of the water that is to be re-injected, so as not to compromise the environmental objectives established for the groundwater body or associated surface waters.

 Draft White Paper on Environmental Liability.16 This long-awaited paper setting up a Community environmental liability regime has to be welcomed, although reserve has also to be expressed that its objectives might have been weakened compared to earlier drafts. In relation to “contaminated site cases” (one of the types of environmental damage covered), the regime applies to damage caused by “dangerous activities”, which - in view of the Doñana incident- should include “metal mining activities involving the use of tailings lagoons”. Furthermore, wording such as “significant”, relating to damage, or “serious”, relating to threats to human health or the environment, needs to be carefully translated into quantitative terms from the perspective of the damage to the affected site itself, and not from a overall, global perspective (i.e. local, regional, national or EU).

The form of action to be taken as a follow-up to the White Paper has to be a Framework Directive covering all types of damage. However, the Commission feels that it is premature to consider including rules for liability for “biodiversity damage” (the other type of environmental damage covered) in such a Framework Directive from the outset. One of the reasons given is that the Community legislation, with which the liability regime in this area should be linked (i.e. the Birds and Habitats Directives), is not yet sufficiently in place. However, the time period between the consultative phase following this White Paper and the drafting of the Framework Directive should certainly be long enough for such Community nature protection legislation to be fully applicable (should be so in 2004). Therefore, binding rules in the area of liability for “biodiversity damage” should be established from the outset.

IMPLEMENTATION AND ENFORCEMENT

1. To ensure that implementation of existing legislation on nature conservation such as the Birds and the Habitats directives is not only speeded up, but also carried out in an efficient and correct manner by the Member States in order to obtain a coherent Community ecological network of habitats (Natura 2000), and hence what will constitute the main instrument safeguarding biodiversity at the Community level. Thus, to be able to identify vulnerable sites - from a nature conservation point of view - within the catchment area of existing and proposed mining sites is vital for the assessment of the environmental risks from metal mining activities, and also to stimulate preventative and remedial action.

2. To guarantee that enough human and financial resources are deployed for monitoring and enforcing the implementation of the relevant Community environmental legislation at the national level in order to guarantee its actual efficacy in protecting human health and the environment from pollution resulting from mining activities. This implies, inter alia, that the “legal unit” within DGXI of the European Commission should have the technical/specialised staff necessary not only to assess whether the legislation has been properly implemented, but also to carry out carry out in situ inspections where necessary (i.e. complaints, infringement procedures etc).

16 shortly to be adopted by the Commission

______13 OSPAR Commission PRAM 99/2/9-E (L) ENLARGEMENT AND FUTURE ISSUES

1. To ensure participation from accession countries in any EU action carried out to protect human health and the environment not only from pollution caused by heavy metal spillages from tailings lagoons such as occurred in Doñana, but also from chronic metal pollution from tailings lagoons leakages and abandoned mines. This would involve the extension of any action work following the suggestions made here (i.e. Inventory, Action Programme etc.) to include these countries.

2. To consider broadening the scope of any action work following the suggestions made here for metal mining waste (i.e. Inventory, Action Programme etc.) to include other comparable waste such as waste from the fertiliser industry, in view of the similarities in storage and disposal methods, and also of recent incidents such as the breached slurry lagoon at Huelva, Spain, on 1 January 1999.

3. To try to ensure that any standards developed at EU level are transferred to mining activities elsewhere in the world, for instance that they are incorporated in any Community development assistance associated with mining.

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Cover photo of the Boliden mine “Los Frailes” in Anazcóllar, Southern Spain, is the property of Jorge Bartolome, WWF-Spain (Adena)

______14 OSPAR Commission PRAM 99/2/9-E (L)