Red Mud and Other Messes

 

Mud Spill

Cross-posted from JohnFeffer.com.

It was one of the worst environmental disasters in Europe. In October 2010, near the town of Ajka in northern Hungary, a reservoir wall containing the industrial sludge pond of an alumina plant collapsed and more than a million cubic meters of toxic red mud swept across the countryside, through several villages, and into the rivers feeding the Danube. Ten people died, and more than 120 were injured. The pictures of the disaster are astonishing.

Accidents happen. But this was not a complete surprise. As early as 2006, the International Commission for the Protection of the Danube River declared this particular pond to be “at risk” of polluting the area around the river. Moreover, Hungary had gradually been weakening the legal framework for environmental protection.

Csaba Kiss is an environmental lawyer in Budapest. He acknowledged that in some respects, the environmental situation has improved in Hungary. There is less untreated sewage going into the water, for instance. But other trends are worrying, such as greater soil erosion or the impact of greater traffic on the environment.

On the legal front, the government has effectively reduced the number of environmental impact assessments (EIA). “Before the early 2000s, the list of facilities and activities that required an EIA was very long, and Hungary was the best pupil in the class,” Kiss told me in an interview in his office in May 2013. “At that time in Austria there were like 13 EIAs a year. Here in Hungary, each regional environmental agency had 100 EIAs. At that time in Hungary we had 12 agencies. And then the government decided to bring it down to the EU average. And that happened in 2005. And now we are ‘fine’ because we are just like every other EU country having 100, not 1000, per year.”

He continues to work on a variety of EIA cases, including one that involved the proposed conversion of an eel-breeding farm into a five-star hotel area. “However, in the last 20 years when this place wasn’t being used for breeding these fish, it became a place for biodiversity,” he reported “So, the fight was over whether the builders had evaluated what had happened in the last 20 years since the farming had stopped. And we kind of won.”

Kiss and his team were not involved in the huge red mud spill. But they’ve been working on another red mud case, another tailing pond used for alum-earth processing. “But this place has not been used for many years, so it’s absolutely dry so there is no chance of a spill,” he said. “So the biggest problem is that now the wind blows away the dust. And there is a company that decided to cover up this place. Sounds good — it’s environmentally positive stuff. But the way they cover it is to collect hundreds of thousands of tons of waste — including hazardous waste — bring it to the site, mix it all together, and then leave it there for a month to three months. They call it composting. But these are acids, toxic materials, the rock beds from railway tracks that are contaminated with oil and pesticides. They call the end result ‘artificial soil.’ We went to the European Commission so that it could start the infringement procedure against Hungary breaching the European waste legislation. I hear that there is a very good chance that this will exceed the margin of tolerance for the Commission, so they will take it to the Court.”

We talked about personal injury cases connected to environmental pollution, industrial development that takes place in or near parks and areas of biodiversity, and why, according to a popular Hungarian joke, the Germans, Russians, and Hungarians in Hell don’t try to escape from their boiling cauldrons.

The Interview

Do you remember where you were and what you were thinking when you heard about the fall of the Berlin Wall?

I think I was here in Budapest. I’d visited Germany for the Munich Oktoberfest just a month before the Berlin Wall fell. So I had the chance to visit West Germany. But then a month later, the whole system fell apart.

Tell me how you first got involved in environmental work.

As a student I got a chance to travel and spend half a year on a scholarship in the Netherlands where I wrote my final thesis in 1993. Actually I spent the time there with three engineers, and I was the only lawyer. I was sent to a technical university there, but I spent a lot of time at The Hague, the International Court of Justice, researching my paper on international law. And then I got sucked into the movement by being a research person on these issues. My professor was setting up this organization, and then he asked me whether I wanted to join. And I said, “Yeah, why not?” This was my second workplace. I’d started in a multinational, but after two months I said, “No thank you very much, I don’t like this atmosphere.”

People ask me if I’m bored after 19 years of doing the same thing. And I say I’m in the same workplace, but there’s no two successive months when I do the same thing. I’m an attorney, and an attorney has different cases.

How would you evaluate the state of the environment here in Hungary compared to 20 years ago? Has it improved dramatically, has it remained relatively the same, or has it gotten substantially worse?

We have to distinguish between just giving an overall kind of evaluation of the physical state of the environment and the state of legal regulation. Saying that it’s better, worse, or the same doesn’t really reveal the developments over the last 20 years. Three major areas are industrial pollution, nature and biodiversity (including elements like water, air, and so on), and the human and urban environment. In terms of industrial pollution, there has been a huge improvement. We have incorporated first the American standards and then later the EU standards. The facilities that could function and operate in the 1990s are inconceivable today. You can’t just start a business today with the technology you had in the 1990s.

In terms of the biodiversity, of course, we are also impacted by the disappearance of species. Surface water quality to some extent is getting better because there is less sewage released into the fresh water.

That’s untreated sewage?

Yes, untreated. On the other hand, more chemicals are used, and the treatment doesn’t always work for certain types of chemicals like hormones in medicine. Therefore there is an increase in this type of the pollution. Of course we’re also impacted by global trends, like climate change and so on. Because of soil erosion, the amount of arable land is decreasing.

In terms of the urban environment, we are very much impacted by the growing traffic. The internal parts of cities and rural towns are worse to live in. It’s urban sprawl. People move out of the cities, and then they start to commute by car because public transport is not good enough. So they leave the inner cities to have a better living environment. But only the immediate environment gets better as they impact the larger environment. They don’t realize that they do much more harm to the environment. If you’re sitting in a concert and then you stand up to see better, you will see better. But if everybody else stands up, then you won’t see any better. What is rational for a single individual is not for the whole community. That’s what has happened in Hungary. But if I’m obliged to give a grade, I would say that, because of the untreated sewage and unregulated waste streams and contaminated sites in the 1990s, we are slightly better off today.

So, that’s positive.

Yes, it’s positive. But the problem is that there’s been a much bigger technological development. It’s like when you start at a race, and you increase your speed. You’re happy because you’re accelerating, but you don’t realize that others have already passed the finish line. Just look at what’s happening now in terms of utility costs decreasing. The same amount of money could have been invested in solar panels, wind power, renewables of various types. We are not very good at solar, but that’s still better than wasting the money. So, our slight improvement is positive, but that’s no reason to feel pride because it could have been much better.

It sounds like much of the improvement was a result of happenstance – because of the collapse of industry or because of EU regulations. Was there anything positive that could be attributed to positive government action over the last 20 years?

I could try to save their ass, but I’ve decided not to. It’s not just because I’m not able to find some good examples. But in an overall evaluation I would say that even if there have been good initiatives like setting up the environmental ombudsman office, they just downgraded this initiative a year ago. So even if there was a good initiative, it just disappeared. I know that there are other countries like this. I have environmental lawyer friends in Europe and all over the world. I have two friends in Ireland who say that there is no genuine Irish environmental law that does not stem from EU requirements. This is not true for Hungary. We have some regulations that are quite okay from before EU accession or even before the change of the political regime. We had a general law on the environment from 1976, four years after the Stockholm Conference, which was quite okay for that general level of development. But recently, we gave up being forerunners or creative.

What about things like environmental impact statements? Do you have a strong structure for that?

Yes, it’s a strong structure. It’s one of the few things where public participation is really regulated in detail. The government agencies and the regional environmental agencies cannot skip this obligation in order to favor the industries. The first so-called interim regulation dated exactly to 1993 when we introduced the Environmental Impact Assessment (EIA) system. There have been a few changes. But we didn’t decrease the level of protection guaranteed by EIA, we just eliminated our extra burden. Just two words of explanation: before the early 2000s, the list of facilities and activities that required an EIA was very long, and Hungary was the best pupil in the class. At that time in Austria there were like 13 EIAs a year. Here in Hungary, each regional environmental agency had 100 EIAs. At that time in Hungary we had 12 agencies.

So, very low-scale activity also required an EIA. And then the government decided to bring it down to the EU average. And that happened in 2005. And now we are “fine” because we are just like every other EU country having 100, not 1000, per year.

That’s too bad because the principle of the EU is to harmonize up, not to harmonize down. They’re supposed to get Austria to perform at the Hungarian level…

Definitely. But it’s very hard to convince the state administration because of the budgetary implications. Also the problem was that, although we did over-perform in a quantitative sense, qualitatively we got some complaints from the European Commission about how we regulated those activities, which on issues like thresholds, were not always in line with the spirit of the EU directive.

I want to ask you a question about the general legal environment before I ask you specifically about environmental law. There’s been enormous criticism about what’s happened, especially the last few years, in terms of the erosion of “rule of law” in Hungary, for instance, government intervention into the legal system. Are those assessments of a dangerous situation in Hungary largely correct, or are they overblown?

It’s a very damaging tendency, but it’s a bit overblown to compare it to Germany in the 1930s. Some people go that far in comparing the situation to some kind of “building dictatorship.” Altogether, though, when you put each of the actions next to each other, they’re really alarming. For instance, the decision on who appoints the head of the media authority. There’s been a huge debate between the government of Hungary and the European Commission and the European Parliament on who should appoint this person. Of course there are examples in Western Europe like France or Austria where the prime minister appoints this person, just like in Hungary. But that’s a different mentality. There’s a system of checks and balances in those countries. Here the same thing has different connotations. Here having this person appointed by the prime minister means that the government is getting more and more power, that they’re politicizing culture.

Also there is a tendency here — and the ruling party does it so bluntly, so stupidly — to “favor our friends and damage our enemies.” For those on the side of the authorities, corruption is hidden; for those on the other side, corruption is played up. Unfortunately, it’s really true over the last eight years that we were not free of corruption. That’s why we are in this situation now – because voters punished the previous government. That’s why a rotational system is much better, not a legally obliged rotation but somehow a natural rotation that comes every four years or so. In this way, a government doesn’t have eight years to do whatever they want.

How has your job changed in the last three years, and can you give specific examples?

It’s much harder to get funding for this kind of work. By the way, we do public interest environmental litigation and legal service, which means on behalf of citizens and NGOs, never on behalf of polluters and never helping polluters get away from environmental liability. We go to court, we give legal advice, and so on. Sometimes we give legal advice and expertise to the Hungarian government — before 2010, never after that — to the European Commission, to international organizations like the UN Economic Commission for Europe, and to companies only if they want it. For instance, if a company has an abstract question about how to improve their environmental performance, we’ll answer them. As soon as they want us to help get a permit – no, the contract is over. So, we have to generate income from somewhere, and this is through donations, subsidies, and grant making from all these foundations, European and national.

After the credit crash a lot of grants were dropped. The foundations that continue to provide grants are pickier. Domestically, the pool of money available for civil society has decreased dramatically. It’s gone from say one billion forints to 100 million – one tenth what it was 10 years ago. We have two types of clients: NGOs who litigate before something environmentally damaging happens in the public interest and private individuals who litigate in their private interest after something has happened. The first category of cases has almost disappeared. NGOs are overwhelmed with survival. They don’t have time to come to us and say, “Let’s do a case together.” We are three attorneys, and we have maybe two of these cases for each of us. Normally, we have 12-15 cases per person. And the government terminated our long-term advisory service contract, mostly on EIA issues. But there are a number of cases where people want compensation for damage that happened to their immediate environment, even in their backyard.

Can you give some examples of successful litigation in that first category?

Normally these are EIA cases, and normally the pattern is the same. Either there’s been a major procedural mistake, which I really cannot brag about because that’s not really an environment issue. Some level of authority makes a decision, and the court finds out that it violated the procedural rules – this has nothing to do with the environment. The issues were, for instance, a bypass road permitted by, let’s say, a local clerk who was buying her way through. In this case, local government was deeply involved, so the granting of the permit was based on biased decision-making.

The other kind is when we figure out that the state of the environment was not discovered properly or the impacts were not properly assessed. There was a large EIA case involving the conversion of an eel-breeding farm into a five-star hotel area. However, in the last 20 years when this place wasn’t being used for breeding these fish, it became a place for biodiversity. So, the fight was over whether the builders had evaluated what had happened in the last 20 years since the farming had stopped. And we kind of won. There was another case in which we opposed a wind farm because it was put in a place where migratory birds fly through. Okay, you need a toilet in your house, but you don’t put it in the middle of the kitchen! Or they built a huge bypass road around Budapest, and they made an assessment for a version with four exits. At the end of the day, they built it with three exits. And the environmental agency said, “Oh, what difference does it make?” And we said, “Come on, the same amount of traffic will leave at these three exits instead of four, so there must be some change in the amount of emission.” The court agreed, and they had to re-do the assessment. So, when talking about the environment, it’s not enough to do good, you have to do it well too.

Have you taken any of these cases to the European level for judgment?

We have a case now before the European Commission. There’s been an unused red mud pond. You probably heard about the red mud accident that happened two and a half years ago. This is different. This is an unused red mud pond – a tailing pond from alum-earth processing. But this place has not been used for many years, so it’s absolutely dry. There is no chance of a spill. In the other case, the spill happened because there were two deep liquid containers on top of the drywall, and the whole thing slipped. But this one is dry, and it’s several meters deep. So the biggest problem is that now the wind blows away the dust. And there is a company that decided to cover up this place. Sounds good — it’s environmentally positive stuff. But the way they cover it is to collect hundreds of thousands of tons of waste — including hazardous waste — bring it to the site, mix it all together, and then leave it there for a month to three months. They call it composting. But these are acids, toxic materials, the rock beds from railway tracks that are contaminated with oil and pesticides. They call the end result “artificial soil.”

We went to the European Commission so that it could start the infringement procedure against Hungary breaching the European waste legislation. I hear that there is a very good chance that this will exceed the margin of tolerance for the Commission, so they will take it to the Court. I didn’t think we would be taking the case to the Court. We initiated a few times the so-called preliminary ruling procedures. As you probably know you can ask the national court to refer the question up to the Court of Justice of the EU. In each and every case, the court has refused to refer the question, saying that they could decide the matter. In at least one of the three cases, the fundamental issue was supposed to be decided by the European Court of Justice. By the way, the head of the Supreme Court in Hungary has started legal research into the question of what extent the court in Hungary has used this authority to refer questions to the European Court of Justice. The Hungarian judiciary is quite shy in this respect. Other countries love the EU court. Even the Italians: they have written such stupid questions that there’s case law involving the Court of Justice teaching the Italian judge that “this is the way to pose a question.” We are not like that. We decide. We think we’re smart enough that we don’t need the Luxembourg court.

Were you involved in the litigation around the first spill of this red mud?

Absolutely not. As we say in Hungary, “this is not our table.” It’s not really our job. That case can be divided into three aspects. One is the government agency imposing penalties and obligations on the company. We are not supposed to be involved in that. Greenpeace was there, but Greenpeace did not ask our legal help, except on minor issues like whether the company could release the untreated water into rainwater ditches. And I said no. That was the only thing. Probably you know that sometimes Greenpeace sees legal issues as too slow. They like the momentum of going there, hanging banners, doing things the hard way. A lawyer who says, “Give me a week to answer,” and then within two weeks they still haven’t gotten an answer – no, that’s not their style.

The second aspect of the case was the government taking over the company. I don’t care, and I don’t want to know whose business it is. I’ve tried not to be involved. And the third issue is personal injury. I kept thinking about it afterwards: is it a nasty thing or a good thing when high-profile personal injury attorneys move an office to the site? They rent a house, they open a little office, they very hastily print out those plaintiff sheets, and then people stand in lines to submit claims.

So it’s become a lucrative business.

Somehow it turned out that the attorney that was very active at first in collecting all those claims and getting the most clients was not a friend of the government — as far as I’ve read in the newspapers (and by the way, this whole issue should be revisited again because there is a lot more to it than just those few things that were covered by the media). Then the government mandated another attorney from the other side of the country to go and get the clients and also offer services free of charge for the victims if they migrated their claims from one attorney to the other. So the government, which shouldn’t interfere with these issues, actively encouraged people to leave one attorney and move to the other because the other would be supported by the government. Thank god I wasn’t there.

Let’s talk then about the general category of people claiming injury after the fact. What have been some of the major cases that you’ve been involved in on that?

People react when they open the window in the morning and something has changed. They start to pay attention when trucks start to move the earth or when bulldozers start to change the landscape, if there is worse traffic, if the sixth or seventh pub opens on the street. By the way, this is a Jewish quarter, a very good neighborhood. There are some very old, bad-looking houses, which people decided to tear down. But first, before that happened, a pub opened up. First there was a little pub called “Szimpla,” which is “simple” in Hungarian. It’s a very typical “ruins pub.” They hardly invested in it other than putting up a wall and collecting old chairs from hundreds of different places. People started to like it. But people who live on the first, second, or third floor – they don’t like it. So this is one type of case.

The other type is when the local government moves waste management sites. These are not landfills but just these huge containers for selectively collecting the waste, which they put in front of someone’s house. We don’t question the public interest behind this. We question the placement. Why did they put it next to a house worth a lot of money and decrease the value of that house by 15 percent because people won’t want to buy it if there’s this huge container near it?

The third type is excess traffic like when bypass roads are built, or the traffic system is changed to some extent. These are the typical examples. Because we don’t have the legal standing for this, people don’t litigate for loss of diversity or aesthetic value. As I learned in my study of classic American legal cases, you have legal standing if you go hiking in a place once and now you want to go back and it’s been altered. You don’t even have to go back — you just want to go back. We don’t have such issues here.

Back in the early 1990s Hungary was seen as an opportunity for companies to come here because of the difference in standards. Or have the regulatory standards improved to such a degree that there’s no longer a discrepancy?

There’s still obsolete technology moving to Hungary. But it’s not because Hungary doesn’t meet the regulatory standards of countries to the west but because this is the natural sequence of how developments spread. For those industries that are very capital-intensive like entertainment and IT, it’s definitely not the case. You can buy these gadgets for peanuts. Therefore this is big business, and there is benefit in spreading these technologies evenly across the globe. But with hazardous waste incinerators or large manufacturing plants, where probably there are few improvements, they start somewhere else and spread here. Or sometimes a company decides to select Hungary as a precedent. I don’t know the technology Mercedes uses in eastern Hungary or Audi uses in western Hungary. What I know has been a problem for some communities has been with the conversion of some distance heating gas stations to biomass. Some people discovered that the technology that they wanted to transfer here from Finland and Norway was not cutting-edge. I wouldn’t call it obsolete. It was just second-grade technology. But they still met the requirements here. Still, there was huge public opposition, and both the Finnish and the Norwegian companies changed their plans. They said, “Oh my god, if there’s such a public participation against us then we’ll stop.”

It’s very alien to Hungarian logic that just because people don’t like it, you don’t do it. I’m going to tell you a joke that will tell you everything. In Hell, there are three huge pots, and hundreds of thousands of people are inside, and a fire is burning fiercely under them. There are no guards next to the pots.

Someone asks the Devil, “What’s happening? Why don’t people leave those cauldrons?”

And the Devil says, “The first cauldron is full of Germans. We put a sign there that it’s prohibited to cry or to crawl out. So people respect the sign.”

“Okay, then what about the second one?”

“The second one, they’re Russians. We shot the first one in the head who tried to leave, so now they’re silent. They know now how it works.”

“And the third one?”

“These are Hungarians. But there are no signs, and we didn’t have to shoot anyone. If one of them tries to climb out, the others pull him back in.”

This is Hungary. It’s not possible to advance too far in this country. All our Nobel Laureates except one went to high school here and left the country as soon as they could. They got their Nobel Prizes outside, in the United States mostly.

Are there examples of the government basically allowing development to take place in areas that were previously identified as biodiversity areas or parks?

It’s a constant problem. I wouldn’t associate it with this government. We always have cases where certain industrial developments were permitted in certain areas. And unfortunately I have to confess that the most outstanding case happened during the Socialist government, and unfortunately it involved an iconic figure of nature conservation, who was the head of one of the national nature parks, Hortobagy, the one in the puszta, with the most typical scenery in Hungary, the one where the buffalo roam. He was the first one dismissed by the new government back in 1998. The Greens organized demonstrations and petitions to keep him in his position. It was such a disappointment that he was the one who wrote an expert opinion on behalf of a company that wanted to build a used car battery recycling facility on the edge of the nature reserve. The facility would have produced lead and gas, and it wouldn’t have been as lucrative if they’d invested into making it safe. And, as you know, everything starts on the edge. But when that’s finished, something else is proposed again for the new “edge.”

If you could go back to 1990, what would you have changed in government policy to have ensured that Hungary was in a better environmental position today?

I would have had much stronger oversight on the privatization of state-owned industrial facilities and pieces of land, as well as making sure that the money generated by the privatization of these facilities was spent on the cleanup of the old sites. There was a parliamentary commission set up for this, which produced absolutely no results.

And if I have another wish, I would have introduced very large-scale and very strong legal instruments for making sure that public participation had a deep impact on decision-making. Not a veto — because that doesn’t work anywhere. But fee-waivers for the public, legal aid for environmental litigation, reversal of the burden of proof: those kinds of legal things. This would have ensured that, first of all, if you make money off using the environment then you pay it back, and, second of all, the people who are ultimately affected are the ones whose voices are heard.

Budapest, May 13, 2013