June 27, 2017
Ana Barreira1, Director at the Instituto Internacional de Derecho y Medio Ambiente (IIDMA)2
Chlorine has a diverse variety of uses ranging from health and medicine uses to high-tech applications. Three techniques have been used to produce it: mercury, membrane and diaphragm cells. Mercury and its compounds are highly toxic to humans, ecosystems and wildlife. It is persistent and can alter in the environment into methylmercury, the most toxic form. Mercury cells were already not considered Best Available Technique (BAT) by the European IPPC Bureau on December 2001. And, on December 2013 the Best Available Techniques (BAT) Reference Document (BREF) for the Production of Chlor-alkali containing legally binding BATs conclusions for chlorine production affirms that the mercury cell technique cannot be considered BAT under any circumstances. According to the Industrial Emissions Directive (IED), the BAT conclusions for chlorine production are binding from December 2013 and Member States have a maximum period of 4 years to review conditions of permits granted to the chlorine facilities to put them in line with the BATs. This implies that all permits in the EU must be reviewed by 11 December 2017 and ban the use of mercury cells.
In spite of these legally-binding rules, Solvay is opting for BRE(F)xit in their chlorine production in Spain. On 29 June 2016, this company filed a request to the Directorate General (DG) for Environment of the Regional Government of Cantabria to be allowed to use mercury cells for a period of 24 months beyond 11 December 2017. On April 2017, that DG has prepared a draft resolution which intends to allow Solvay to use mercury cells beyond that date. This is contrary to EU Law as it does not only contravene the IED but also the recently published Regulation on mercury3 which prohibits the use of mercury cells to produce chlorine from 11 December 2017. Moreover, last May the EU also ratified the UN Minamata Convention on Mercury which will enter into force in August 2017.
The European Commission has already initiated an investigation on this case after the filling of several complaints by IIDMA, Ecologistas en Accio?n and Arca to DG Environment. In addition, the Spanish Director General for Environmental Assessment and Quality and Nature has sent a letter to its regional Director General colleague reminding him that Spanish regional authorities must respect EU Law and cannot authorize the use of mercury cells beyond 11 December 2017. It is important to recall that if the EC opens an infringement procedure this one would be against the Kingdom of Spain and not the Regional authority violating EU Law. In addition, Podemos has submitted a non-legislative proposal before the Cantabria Regional Parliament asking the Cantabria Government to refrain allowing the use of mercury cells.
It is striking that a company as Solvay tries to avoid the compliance with environmental rules when its CEO in his introductory message of Solvay 2016 Annual Integrated Report stated “In 2016, Solvay passed a new milestone in its transformation into a more resilient, more sustainable, and more innovative multi-specialty Group with high added value.”And in that message he also pointed out the existence of decisions taken in that year to achieve the joint
steering of economic and sustainable development. However, it was in 2016 when Solvay asked for the above mentioned period extension, what cannot be considered a step to a more sustainable company.
Solvay has made great efforts to meet the environmental requirements in the rest of the European Union, but it seems it is not following the same path in Spain. A leader company in the chemical sector as SOLVAY cannot afford to contravene the rule of law established to protect human health and the environment given the proven impacts of mercury on those. The rule of law is one of the foundational values of the EU and companies have a duty to respect it. The EU is suffering profound challenges and one of those is precisely the constant attack to its foundational values.
1 LL.M Environmental Law (London University) and LL.M on International Legal Studies (NYU)
2 IIDMA is an environmental law organization founded in 1997 to contribute to environmental protection and sustainable development through the development, implementation and enforcement of the Law.
3 Regulation (EU) 2017/852 of the European Parliament and of the Council of 17 May 2017 on mercury, and repealing Regulation (EC) No 1102/2008 (OJ L 137, 24.5.2017).