Case handler: Gabrielle Somers Brussels, 14 Jtne2016 Tel: (+32)(0)22861876 Case No: 77424 e-mail: [email protected] Document No: 808071 ffi Naturvemforbundet Mariboes gate 8 N-0183 OSLO Norway Dear Mr Haltbrekken, Subject: Complaint against the Norwegian Government in the area of the environment 1 Introduction By email dated 20l[l/:ay 2015, together with the 11 organisations copied in on this letter, you submitted a complaint dated 19 May 2015 to the EFTA Surveillance Authority ("the Authority'') against the Norwegian Government on behalf ofNaturvernforbundet. You raised 4 separate grounds of complaint- i) the issuing of a permit in relation to mining activities in the Førde fiord; ii) the issuing of a new permit in relation to mining waste in Ranfiord, iii) the issuing of a permit in relation to mining waste in Bøkfiorden; and iv) the continued use of active dumping sites for mining waste across Norway and their treatment in the respective river basin management plans. Your claim, in relation to each of these heads of complaint, that Norway has not respected the requirements of the Water Framework Directivel ("WFD"). In relation to the third ground of complaint above, the Authority notes that, according to the information provided by the complainant, the permit was issued on23 April 2008. While national legislation may already have been in force at that time, the WFD entered into force in the EEA States on 1 May 2009. As such, the Authority is not competent to assess the actions of the Norwegian Govemment under the WFD at a time when the relevant legislation was not yet in force at the EEA level. In relation to the fourth head of the complaint, the Authority notes that the Norwegian Ministry of Climate and Environment ("the Ministry") has yet to finalise its approval ofthe river basin management plans for Norway for the period 2016-2021. Until such times as these documents are finalised, the Authority is not in a position to assess how the various permits have been dealt with. In relation to the permit to allow the disposal of mining waste in Ranfiord, the Authority is still investigatingthis head of claim and will respond under separate cover in due course. I Directive 2000/60/EC of the European Parlíament and of the Council of 23 October 2000 establishing a frameworkfor Community action in thefield ofwater policy. Rue Belliard 35, B-1040 Brussels, tel: (+32X0)2 286 t8 I I, fax: (+32)(0)2 286 l8 00, www.eftasurv.int Page2 ffi This letter will therefore only deal with your complaint in so far as it relates to the permit granted by the Norwegian Govemment to allow mining activities at the Engebø mountain and the related disposal of mining waste. 2 Factual background On 8 Augus^t 2008, Nordic Mining AS applied for a permit under the Norwegian pollution Control Act2 to carry out extraction and processing ãctivities for rutile (titaãium dioxide) from Engebøflelletin the municipality of Naustdal. This application was revised on 10 June 2009 . On 17 Apnl2015, the zoning plan concerning the mining project in Engebøfiellet was approved by the Ministry of Local Government and Modernisation. Having received the recommendations from the Norwegian Environment Agency on 13 February 20153, on 5 June 2015, the Norwegian Ministry of Climate and Environment ("the Ministiy") granted a permit pursuant to the Norwegian Pollution Control Act to Nordic Mining ASA to cany out mining activities for the extraction of rutile from Engebø mountaina. The permit included the right to deposit 250 tonnes of mining tailings in the Førde fiord over a 50 year period. That decision was appealed to the King in Council. On 19 February 2016, itre liing in Council dismissed the appeal and upheld the Ministry's original decisions. The decision recommends a change in the conditions for the granting of the pennit to allow for the surveillance of migrating smolt. 3 Correspondence On22May 2075, the Authority wrote to the Norwegian Govemment informing it of the receipt of the complaint6. It should be noted that substantially identical complaints were received by the Authority in 2 other cases and that the Authority was already engaged in correspondence with the Norwegian Government in relation to the decision to grant a permit for mining activities in Engebø{ellet7. On 22 June 2015, yoü providãd additional information in support of your complaints. On23 June 2015, the Authôrity wrote to you to clarify the scope of its powers'. Bt email dated 1 December 2015, you provided further additional information to the Authority regarding the casero. The casð *u* dir.ursed with the Norwegian Government at the package meeting which took place in Oslo on 12-13 November 2015. Pursuant to those discussions, the Norwegian Government provided further information by emails dated 8 January 20I61t . By email ãated l9 February )016, the Norwegian Govemment provided the Authority with a copy of the decision from the tcing in Council, dismissingthe appeal against the decision to grant a permit under the Norwegiai Pollution Control Ac.t^12. By email dated 13 May 20l6,you provided further information in support ofyour casel3. 2 LOV-I981-03-13-6: Lov om vern mot forurensninger og om avfall (forurensningsloven). 3 Saksnr: 2013/4983 Recommendation from the Norwegiãn Enviro¡rmental a Agency of 13 February 2015 Saksnr: 13/4417 Permission for activities under the Pollution Control Act of 5 June s 201 5 Kongelig Resolusjon l5l3378,dated l9 February 2016. o Document Nr 758203. 7 Cases 76709,77442. 8 Document Nr. 761637. e Document Nr.761638. ro Document Nr. 782597. tr Documents Nr 794560, 794566. 12 Document Nr 795516. 13 DocumentNr.804739. Page 3 ffi 4 Relevant Law 4.1 Directive 2000160 The WFD was incorporated into point 13 ca of Annex XX to the EEA Agreement by Joint CommitteeDecision 12512007 of28 September200T.ItenteredintoforceintheEEAon I I|l4ay 2009. The Joint Committee Decision contains a number of adaptations in particular with regard to the time limits mentioned in the Directive, meaning that in respect ofthe EEA EFTA States, the time limits prescribed in the relevant provisions of the WFD started to run from the compliance date, i.e. 1 May 2009t4. The WFD requires Member States to establish river basin districts and for each of these a river basin management plan. The WFD envisages a cyclical process where river basin management plans are prepared, implemented and reviewed every six years. There are four distinct elements to the river basin planning cycle: characterisation and assessment of impacts on river basin districts; environmental monitoring; the setting of environmental objectives; and the design and implementation of the programme of measures needed to achieve them. The WFD establishes common definitions for the status of water qualityls and requires States to establish programmes to monitor both the ecological and chemical status of bodies of water within each river basin districtl6. According to the terminology of the WFD, the ecological status or potential status of a body of water is expressed in terms of classes (e.g. 'high', 'good', 'moderate', 'poor' or 'bad'). The ecological status and potential class are established on the basis of specific criteria and boundaries in accordance with Annex V of the WFD. When considered in the context of Article 4(7) WFD, the objective of preventing deterioration of ecological status refers to changes between classes rather than within classeslT. In addition to ecological status, the WFD also sets parameters for chemical status, which measures chemical pollutants ofhigh concern across the EEA. The chemical status of water bodies is classified as being either 'good' or 'failing to achieve good'18. The WFD establishes a framework for the protection of surface waters (including rivers, lakes, transitional and coastal waters) and ground waters throughout the EEA. Article 4 of the WFD defines its environmental objectives. The aim is long-term sustainable water management, based on a high level of protection of the aquatic environment. Article a(lXaXi) WFD introduces the principle of preventing deterioration and ensuring the conservation of high water quality where this already exists. It reads as follows: ra According to Article I (lxb) of the Joint Committee Decision "The time limits mentioned in Articles a0þ)0Ð and (iü),4(I)(b)(ii), a0þ)5(t) and s(2),6(t),8(2), I0(2), tt(7) and I1(8), I3(6) and I3(7) as well as 1 7 (4) of the Directive, which run from the date of entry into þrce of the Directive shall be understood to runfrom the date of entry intoforce of the Decision of the EEA Joint Committee No 125/2007 incorporating this Directive into the Agreement. " 15 The relevant criteria are set out in Annex V of the V/FD. ró Article s(txiÐ v/FD. t7 Common Implementation Strategy for the Vy'ater Framework Directive (2000/60/EC) Guidance Document No. 20 - Guidance Document on Exemptions to the Environmental Objectives (Technical Report - 2009 - 027) at section 3.5. l8 Arurex V, 1.4.3, WFD. Page 4 ffi "In making operational the programmes of measures specified in the river basin management plans: (a) "for surface waters (i) Member States shall implement the necessary measures to prevent deterioration of the status of all bodies of surface water, subject to the applícation of paragraphs 6 and 7 and without prejudíce to paragraph 8; " Article 4(1) defines the WFD general objective to be achieved in all surface and groundwater bodies, i.e. good status at the latest 15 years after the entry into force of the Directive. For Norway, this means a deadline