The Swedish multinational Boliden will not have to pay, at least for now, not one euro for the environmental consequences of the accident suffered by the mine that was exploiting in the Seville town of Aznalcóllar. More than 25 years after that catastrophe and after a convoluted and almost eternal lawsuit, the Court of First Instance 11 of Seville has dismissed the demand of the autonomous Administration against the mining company, from which it claimed something more than 89 million euros, the invoice for the cleanup and environmental restoration of the damage caused by the dumping of toxic sludge into the Guadiamar riverbed, which reached the gates of the Doñana National Park itself and had effects throughout Andalusia.
In a sentence that has been released today, the judge knocks down the Andalusian government's claims by concluding that the legislation in force at the time the events occurred did not establish the obligation to restore environmental damage to the owner of a mining exploitation.
The lawsuit used, specifically, the Mining Law of 1973 (modified in 1980) and Royal Decree 2994/1982 as the main arguments that, in his opinion, established the requirement to pay for all the actions that were carried out after the accident. of April 24, 1998 by imposing on the holder of mining rights, in the case of the mining law, that he will be “responsible for the damages and losses that he causes with his work…”. Likewise, the Junta invoked the European principle of 'those who pollute pays' to try to tip the judicial scales in their favour.
But judge José Manuel Martínez not only has not been convinced by the legal reasons of the Board, but has rejected them without hesitation, supporting the position that Boliden maintained and on which he insisted in the judge that was held a few weeks ago in Seville. That is, when the accident occurred, the legislation did not go that far and, of course, it did not require in any case the restoration of the area affected by the rupture of its mining waste pond.
In relation to article 81 of the Mining Law, the cornerstone of the Board's claim, the judge points out that “the scope sought by the regional Administration has not been sufficiently justified” and that, therefore, it does not support its claim .
And in very similar terms he expresses himself about Royal Decree 2994/1982, specifying that what he is talking about is the obligation to restore “in the natural space affected by mining work”, something that would not fit in the case of the Aznalcóllar spill. , which affected more than 4,600 hectares of land.
One by one, the judge dismantles the legal arguments of the Board, including the principle of responsibility for risk and even the European principle of “whoever pollutes pays.”. Regarding the latter, it invokes various jurisprudence to recall that the directive that develops it, 2004/35/CE, is not effective until April 30, 2007 and, therefore, cannot be applied to previous events and the Aznalcóllar disaster. it took place nine years earlier.
The sentence has been notified this Friday, two weeks after the end of the oral hearing of the trial, and it is not final.
Appeal even before the Supreme
The Junta de Andalucía has hastened to announce that it is going to file an appeal against the ruling of Judge Martínez. Thus, the Andalusian Government will file an appeal and, “if necessary, it will appeal to the Supreme Court” (TS), as the Andalusian executive has assured in a statement in which it states that it “respects judicial decisions and, therefore, this sentence” which, as he has remarked, “is not final”, and he has declared himself “convinced of the existence of the responsibility of the Boliden group”.
From the Board they argue that said sentence, “in the face of a case for which there are no precedents or, therefore, jurisprudence or doctrine, stems from a legal interpretation of the regulatory framework applicable 25 years ago that the Andalusian Government does not share.”
Thus, the sentence “denies the sufficiency of said regulatory framework in force in 1998 to protect the claim of the Andalusian community, leaving the question of the responsibility of the Boliden group unpredicted”, warns the Board, which also points out “the unfortunate circumstance, not attributable in no case to the current Andalusian Government, that the autonomous Administration has been forced into 25 years of jurisdictional pilgrimage, since an attempt was made to request responsibilities through civil proceedings, and the same court that has now handed down the sentence declared itself incompetent and took the Board to resort to administrative proceedings, until finally the Supreme Court returned the claim to the Court of First Instance number 11 of Seville”.
From the Board they have also stressed that “both Boliden's responsibility for the consequences of the mining accident, as well as the fact that the breakage of the dam is exclusively attributable to its actions, have already been declared by final judgment.”
Thus, the judgment of the Supreme Court (TS) of November 22, 2004 sentenced him to pay more than 40 million euros for the damages caused to the public hydraulic domain, while that of the same high court of January 11, 2012 resolved “the claim presented by the company against the authors of the projects and executors of the works, from whom it intended to claim responsibility for the breakage”.
Said judgment literally stated that “what is clearly proven is that the plaintiff today who is the appellant managed the waste discharges from the pond, moving away from the projects, mixing waste discharges instead of separating them, injecting liquids into the pond for the that was not projected, building a battery of drainage wells at the foot of the dam, which entails a decrease in the stability of the dam, the plaintiff (Boliden) having made an incorrect increase in it, which necessarily leads to an increase in interstitial pressures , being the direct cause of the rupture of the dam, unrelated to the work carried out by Intecsa, Geocisa or by ACS, Actividades de Construcción y Servicios SA, so it is not correct to hold them responsible for the rupture of the pond, and even less for the damage caused”.
Boliden, in bankruptcy
To what has been said must be added, according to the Board, that Bolidén Apirsa, SL. “It is involved in bankruptcy proceedings in which the bankruptcy administrators have requested the declaration of guilt of the bankruptcy.”
The spokesperson for the Andalusian Government and Minister of Sustainability, Environment and Blue Economy, Ramón Fernández-Pacheco, stated that “one of the main values that the Junta de Andalucía defends today is the absolute respect for our natural environment and, therefore, of course, with the principle that the polluter pays”.
“We are convinced of the existence of a responsibility on the part of Boliden, and we have the firm intention of appealing this sentence, first on appeal and reaching, if necessary, up to the Supreme Court,” he insisted.
The counselor has spoken of “very bad news for Andalusia” and “for the environment at a time when the protection of the natural environment becomes a fundamental objective of our legal system”, and has stressed that the Board “already spent almost 90 million euros to repair the consequences of a mining accident for which the Boliden Group is exclusively responsible”, according to the statement.