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WG Environmental Law > Meetings > Workshop in Sofia 28-29 May 2009 > Environment Workshop in Sofia, Austrian case

Environment Workshop in Sofia, Austrian case

Facts:


The complainant is owner of a starch producing factory in a village in Vorarlberg/Austria next to Lake Constance. In May 1998 he filed an application to the regional authority to get the authorisation according to the water law for the construction and handling of a wastewater disposal system. The wastewater should be purified in the factory premises and the purified water should be discharged into Lake Constance.

The authority of first instance (district authority in the name of the governor of Vorarlberg) granted a permit for the construction and handling of a wastewater disposal system according to article 32 and 33b of the Austrian water law for direct discharge of the purified water into Lake Constance pursuant to the technical documents under several conditions. Amongst other conditions it was stated that the daily average of chemical requirements of oxygen (ger.: CSB = chemischer Sauerstoffbedarf) should not exceed 60 milligrams/litre per 24 hours.
The complainant appealed.


The authority of second instance (Federal minister of agriculture and forestry, environment and water management) amended some of the conditions of the permit, but did not change amongst others the stated value for the daily average of chemical requirements of oxygen.
Concerning to the reasons for the decision the authority of second instance obtained the opinion of a water expert. This expert referred to guidelines concerning Lake Constance in which are laid down the maximum permissible values e.g. for the daily average of chemical requirements of oxygen with a maximum of 60 milligrams per 24 hours.
Higher maximum permissible values e.g. for the daily average of chemical requirements of oxygen are foreseen in an regulation of the Federal minister of agriculture and forestry concerning the limitation of emissions in waste water concerning the fabrication of sugar and starch (reg. no. 1073/1994). This regulation is only applicable to the discharge of waste water into streaming waters.

The discharged substances, which are biodegradable, have a negative effect to the oxygen content of the water of a lake in a much higher degree than in streaming water, as the input of oxygen into the water of a lake is generally very low.


The decisive aspect of keeping clean the waters of lakes is the input of nutritive substances (phosphor, nitrogen), as these substances lead to an amplified eutrophication of the waters of a lake.

It is therefore justified that in this case the stated maximum values for the emissions of pollutants are very strict. The wastewater treatment plant – as foreseen in the documents of the project is able to achieve the necessary denitrification.


The complainant filed a complaint against this decision of the authority of second instance before the Administrative Court (Vienna). Amongst other things the complainant argues that the Lake Constance could be seen as a streaming water as river Rhine flows through this lake.
Furthermore the cited guidelines concerning the prevention of water pollution of Lake Constance of 27th of Mai 1987 are not binding (it is not a formal regulation of the competent minister). The decision of the authority seems therefore to be unlawful, because the stated maximum value concerning the daily average of chemical requirements of oxygen is only laid down in these guidelines.


Legal framework:


Directive 2000/60/EC of the European Parliament and of the Council of 23rd October 2000 establishing a framework for Community action in the field of water policy


Article 1


Purpose


The purpose of this Directive is to establish a framework for the protection of inland surface waters, transitional waters, coastal waters and groundwater which:
(a) prevents further deterioration and protects and enhances the status of aquatic ecosystems and, with regard to their water needs, terrestrial ecosystems and wetlands directly depending on the aquatic ecosystems;
(b) promotes sustainable water use based on a long-term protection of available water resources;
(c) aims at enhanced protection and improvement of the aquatic environment, inter alia, through specific measures for the progressive reduction of discharges, emissions and losses of priority substances and the cessation or phasing-out of discharges, emissions and losses of the priority hazardous substances;
(d) ensures the progressive reduction of pollution of groundwater and prevents its further pollution, and
(e) contributes to mitigating the effects of floods and droughts
and thereby contributes to:
the provision of the sufficient supply of good quality surface water and groundwater as needed for sustainable, balanced and equitable water use,
a significant reduction in pollution of groundwater,
the protection of territorial and marine waters, and
achieving the objectives of relevant international agreements, including those which aim to prevent and eliminate pollution of the marine environment, by Community action under Article 16(3) to cease or phase out discharges, emissions and losses of priority hazardous substances, with the ultimate aim of achieving concentrations in the marine environment near background values for naturally occurring substances and close to zero for man-made synthetic substances.


Article 2


Definitions


For the purposes of this Directive the following definitions shall apply:


1. "Surface water" means inland waters, except groundwater; transitional waters and coastal waters, except in respect of chemical status for which it shall also include territorial waters.


2. "Groundwater" ….


3. "Inland water" means all standing or flowing water on the surface of the land, and all groundwater on the landward side of the baseline from which the breadth of territorial waters is measured.


4. "River" means a body of inland water flowing for the most part on the surface of the land but which may flow underground for part of its course.


5. "Lake" means a body of standing inland surface water.


6. ….
7. ….
….


Article 4


Environmental objectives
1. 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 application of paragraphs 6 and 7 and without prejudice to paragraph 8;
(ii) Member States shall protect, enhance and restore all bodies of surface water, subject to the application of subparagraph (iii) for artificial and heavily modified bodies of water, with the aim of achieving good surface water status at the latest 15 years after the date of entry into force of this Directive, in accordance with the provisions laid down in Annex V, subject to the application of extensions determined in accordance with paragraph 4 and to the application of paragraphs 5, 6 and 7 without prejudice to paragraph 8;
(iii) ….
(iv) Member States shall implement the necessary measures in accordance with Article 16(1) and (8), with the aim of progressively reducing pollution from priority substances and ceasing or phasing out emissions, discharges and losses of priority hazardous substances without prejudice to the relevant international agreements referred to in Article 1 for the parties concerned;
(b) ....
….
2. Where more than one of the objectives under paragraph 1 relates to a given body of water, the most stringent shall apply.
....


Article 7


Waters used for the abstraction of drinking water
1. Member States shall identify, within each river basin district:
all bodies of water used for the abstraction of water intended for human consumption providing more than 10 m3 a day as an average or serving more than 50 persons, and
those bodies of water intended for such future use.
Member States shall monitor, in accordance with Annex V, those bodies of water which according to Annex V, provide more than 100 m3 a day as an average.
2. For each body of water identified under paragraph 1, in addition to meeting the objectives of Article 4 in accordance with the requirements of this Directive, for surface water bodies including the quality standards established at Community level under Article 16, Member States shall ensure that under the water treatment regime applied, and in accordance with Community legislation, the resulting water will meet the requirements of Directive 80/778/EEC as amended by Directive 98/83/EC.
3. Member States shall ensure the necessary protection for the bodies of water identified with the aim of avoiding deterioration in their quality in order to reduce the level of purification treatment required in the production of drinking water. Member States may establish safeguard zones for those bodies of water.
….
Article 10


The combined approach for point and diffuse sources
1. Member States shall ensure that all discharges referred to in paragraph 2 into surface waters are controlled according to the combined approach set out in this Article.
3. Where a quality objective or quality standard, whether established pursuant to this Directive, in the Directives listed in Annex IX, or pursuant to any other Community legislation, requires stricter conditions than those which would result from the application of paragraph 2, more stringent emission controls shall be set accordingly. Member States shall ensure the establishment and/or implementation of:
(a) the emission controls based on best available techniques, or
(b) the relevant emission limit values, or
(c) in the case of diffuse impacts the controls including, as appropriate, best environmental practices set out in:
Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (19),
Council Directive 91/271/EEC of 21 May 1991 concerning urban waste-water treatment (20),
Council Directive 91/676/EEC of 12 December 1991 concerning the protection of waters against pollution caused by nitrates from agricultural sources (21),
the Directives adopted pursuant to Article 16 of this Directive,
the Directives listed in Annex IX,
any other relevant Community legislation
at the latest 12 years after the date of entry into force of this Directive, unless otherwise specified in the legislation concerned.


3. Where a quality objective or quality standard, whether established pursuant to this Directive, in the Directives listed in Annex IX, or pursuant to any other Community legislation, requires stricter conditions than those which would result from the application of paragraph 2, more stringent emission controls shall be set accordingly. Where a quality objective or quality standard, whether established pursuant to this Directive, in the Directives listed in Annex IX, or pursuant to any other Community legislation, requires stricter conditions than those which would result from the application of paragraph 2, more stringent emission controls shall be set accordingly.
.....


Article 24


Implementation


1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive at the latest 22 December 2003. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.
2. Member States shall communicate to the Commission the texts of the main provisions of national law which they adopt in the field governed by this Directive. The Commission shall inform the other Member States thereof.
.....



National Water Law 1959


Art. 32


Effects concerning waters, which affect directly or indirectly the quality (art. 32 para. 2), are only admissible concerning the allowance pursuant the water law; minimal effects, in particular the common use (art. 8), and the traditional use of soil by agriculture and forestry are not regarded as interference.
Pursuant to art. 32 para. 2 subpara. a of the water law a permission according to para. 1 is required in particular for the insertion of substances in liquid, solid or gaseous consistency.
Pursuant art. 30 para. 2 of the water law "keeping clean of waters" is defined as maintenance of the natural state of water under physical, chemical and biological aspects (water quality); "pollution" is defined as any impairment of this maintenance and any reduction of the ability of self purificartion.
Pursuant Annex A of the water law the Lake Constance is a "public water" (ger.: öffentliches Gewässer)
Pursuant art. 33b of the water law on the occasion of the permission of the discharge of waste water into streaming waters or into a permitted sewerage system the public authority has to stipulate the possible conditions to restrict the transport and concentration of sewage pollutants concerning the state of the technology.

The quoted regulation of the Federal minister of agriculture and forestry concerning the limitation of emissions in waste water concerning the fabrication of sugar and starch (reg. no. 1073/1994) includes different maximum permissible values e.g. for the daily average of chemical requirements of oxygen. These maximum values are higher than those foreseen in technical guidelines concerning Lake Constance. The quoted regulation is only applicable to the discharge of waste water into streaming waters.


Questions:


1. Can Lake Constance be considered as a streaming water, because the River Rhine is entering this lake at the Austrian/Swiss border and leaving the Lake Superior near the German city of Constance?
2. Does it make a difference, whether the quoted regulation of the minister of agriculture etc. from the year 1994 (which foresees higher maximum values for different polluting substances for streaming waters) is applicable or not?
3. Even if this regulation is in general applicable, would it make a difference, that Lake Constance is also used as a bathing water in some areas and that the waters of this lake are foreseen as a reserve for the water supply of some German cities?
4. Has the expertise given during the procedure of second instance any importance for the solution of the case (which one)?
5. Does the not binding guideline concerning the prevention of water pollution of Lake Constance have any importance?
6. Under which conditions is an expertise more or less binding for the authority/(administrative) court?
7. Which possibilities do exist for the parties of a procedure to disprove an expertise?
8. How would you decide the case pursuant the national rules applicable in an administrative case?