Legal

1.1 Violations by Kronospan of applicable regulations

SEBES

In 1998 the company ‘SC MDF FRATI SA’ took over ‘SC MDF SEBES SA’ which had been the operator of the industrial platform producing chipboards and binders in the town of Sebes/Romania. MDF FRATI obtained an environmental accord – No. 447/14.12.1998 – which was conditioned by several measures and investments to improve environmental protection. These included that the retention digs of the formaldehyde and methanol reservoirs should be covered with a polyethylene membrane, protective floors for the formic acid reservoir, special protection for the NaOH reservoir and the purchase a machine to measure the concentration of emissions at fixed locations at the site and beyond. None of these measures were ever

In 2000 SC MDF FRATI SA creates SC SEPAL SRL to produce wood ash chipboards on the Sebes industrial platform. SC SEPAL SRL obtains an environmental accord – No.78/21.04.2000 which reiterates the conditions of accord No. 447/14.12.1998. Despite the fact that the conditions of both environmental accords are violated given that the measures and investments for environmental protection are not enforced, the two companies obtain:

Environmental authorization No. 29/08.01.2001 to SC MDF SEBES FRATI SA. It is valid until 08.01.2003 for the production of urea-formaldehyde resins, PAL wood chipboards and MDF fibre chipboards. Once expired the company obtains environmental authorization No. 478/14.04.2003 with a validity until 14.04.2008

Environmental authorization No. 545/04.11.2002 to SC MDF SEPAL SA. It is valid until 4.11.2003 for the production of multilayered composite wood products. Once expired the company obtains environmental authorization No. 198/22.03.2004 with a validity until 22.03.2009enforced by the company.

In 2004 all activities of the two companies are taken over by SC Kronospan Sebes SA; this without any balance sheet to stabilize environmental obligations for the new owner and without any environmental avis. To top it all, both environmental accords No. 478/14.04.2003 and 198/22.03.2004 respectively, were not even transferred to the new proprietor, SC Kronospan Sebes SA.

In 2007 S.C.KRONOSPAN SEBES S.A obtains an integrated environmental authorization (SB 67/2007) to produce organic chemical substances based on: formaldehyde and urea-formaldehyde resins in liquid and dry form.

The authorization which is valid until 09.01.2017 shows that the document at its base is environmental authorization No. 478/14.04.2003 granted by the Alba Environmental Protection Agency to S.C.MDF SEBES FRATI S.A. However back in 2004, environmental authorization No. 478/14.04.2004 was not transferred to the new owner, S.C.  KRONOSPAN SEBES S.A.

Environmental authorization SB 67/2007 violates Emergency Governmental Ordinance (OUG) 152/2005 which transposes the IPPC Directive because it does not contain the mandatory monitoring requirements. What’s more, the industrial site operates 150 m away from the ‘Kogalniceanu’ residential area. Last but not least, the authorization contains no conditions regarding the capacity and time-line for storing the hazardous waste.

Formaldehyde emissions

1. During 2007, Kronochem a sister company of Kronospan Sebes assembled on the Sebes industrial platform a formaldehyde production unit to double the current annual production (60000 t/a). This unit which has no environmental accord and no construction permit gravely violates OUG 195/2005 on environmental protection and Law 50/1991 on the authorisation of construction works. The Alba environmental guard fined the company and requested the demolition of the illegal unit. However, at the time of writing the installation has not been demolished.

What’s more, while taking the Alba environmental guard to court, Kronochem in the meantime launched at the regional environmental protection agency (ARPM) in Sibiu an authorization procedure to obtain an environmental avis for the detailed urbanistic plan (PUD). This move would create the framework to build the already existing formaldehyde production unit. According to the provisions of Governmental Decision (HG) 1076/2004 on the environmental impact assessment for plans and programs (SEA) and according to the provisions of Law 350/2001 on the territorial management and urbanism, ARPM Sibiu should not have initiated the SEA procedure for a PUD wherein the construction under evaluation already exists. ARPM Sibiu should have rejected the request for an environmental avis from the very beginning. The principal aim of the environmental assessment can not be achieved in a case where plans which are submitted for approval have already been implemented – in this case with the erection of the unit. This makes it impossible to assess the environmental baseline and its evolution in absence of the plan (‘zero’ alternative).

On 19.02.2008, at 5am. a technical error occurred at the current formaldehyde production plant. It led to the accidental leak of approximately 800kg of formaldehyde. These formaldehyde emissions dispersed in the area and led to the recording of formaldehyde emissions well over permitted limits. According to samples taken at the SC Alpin ice-cream factory formaldehyde emissions were double to permitted STAS 12574/87 levels. Kronochem did not alert the environmental authorities about the accident; thus violating the obligations stipulated in the integrated environmental authorization No. SB 67/09.01.2007. The Alba environmental guard fined Kronochem with 80.000 lei (20.800 Euro) for not announcing the accident to the environmental authorities.

3. Between18.05-03.06.2008 the formaldehyde emissions at the Kronospan Sebes site exceeded permitted levels on 13 occasions. The maximum level measured during this period was 0,053 mg/Nmc. The maximum permitted level for protected areas is according to STAS 12574/1987 at 0,012 mg//Nmc. In June 2008 the Alba environmental guard fined Kronospan Sebes with 100.000 lei (26.000 Euros) for this infringement of law.

According to an official letter from the Alba Environmental guard, between 2004 and 2008 a total of 14 sanctions in the form of fines where applied to Kronospan by this institution, totalling in value 200000 euros. Besides the fact that all sanctions where contested in court by the company, which increases the costs of the environmental authority, costs that end up being paid by the tax payers, it becomes evident why Kronospan prefers to pollute instead of investing into technologies to protect the environment, in strict monitoring of emissions, in keeping the emissions into legally admitted limits and in a veritable consultation process with the affected community.

BRASOV

In early 2008 S.C. KRONOSPAN ROMÂNIA S.R.L., a sister company of Kronospan Sebes, started the construction of a PAL wood composite production plant in the city of Brasov. These construction works are based on a construction permit – nr.265/26.03.2002 – which however, lost its validity given that the accompanying environmental accord (nr.120/18.03.2002) expired.

In January 2008 the Brasov environmental protection agency (EPA) requested Kronospan to submit the Urbanistic Zonal Plans (PUZ) which would need to be assessed and authorised before the company could start the procedure to obtain an environmental accord for the above mentioned plant. In absence of any authorised PUZ and in absence of a valid environmental accord, Kronospan started with the construction of the PAL wood composite production plant in February 2008. The Brasov town hall fined S.C. KRONOSPAN ROMÂNIA S.R.L. with notification Nr. 4578/12.05.2008, for not respecting the provisions of construction permit 265/26.03.2002. The notification requests that the “construction works must be halted and that any construction work must be executed according to the provision of the construction authorisation.” The town hall also initiated a criminal complaint against representatives of SC Kronospan Romania for violating the provisions of the fine by continuing the construction works after they were ordered to be halted; as stipulated in art. 24 lit b with Law 50/1991 on the authorisation of construction works (Criminal complaint No. 362250/15.07.2008 at the Brasov Police).

In June 2008 the Brasov environmental guard assessed that environmental accord nr.120/18.03.2002 lost its validity and sanctioned the company with a fine and a request to halt the construction works; as stipulated in the provisions of art.96 al.2 pct.1 of OUG Nr.195/2005.

1.2 Juridical actions of the civil society

In October 2007 the Independent Centre for the Development of Environmental Resources (ICDER) requests APRM Sibiu to repeal integrated environmental decision No. SB 67/09.01.2007 because it was granted in violation of Emergency Governmental Ordinance (OUG) 152/2005 on integrated pollution prevention and control. In its reply the Alba EPA only mentions that the complaint is too late vis a vis the moment of when the authorisation was granted and that back then it met all relevant legal provisions.

In September 2008 the ‘Pollution Free Sebes’ initiative group submits a penal complaint against representatives of Kronospan Sebes for violating Law 50/1991 by continuing construction works after they had been ordered to be halted by the competent authorities and for releasing with full knowledge dangerous substances into the environment and thus endangering public health. File no. 1123/P/2007 at the Prosecutor’s Office beside the Sebes Court. Criminal proceedings were initiated against employees of Kronospan.

In March 2008 ICDER intervenes in its own name and on behalf of a group of citizens from Sebes to defend the environmental authorities in a case Kronospan Sebes vs. REPA Sibiu and EPA Alba whereby it asks to court to oblige REPA Sibiu to issue a screening decision on it’s installation to dry wood chips with a capacity of 75 MW for its PAL chipboard production unit and to oblige EPA Alba to issue the necessary environmental authorization for the exploitation of this unit – Case No. 4249/107/2007 at the Alba Tribunal. In September 2008, Kronospan abandons the pursuit of this case.

In May 2008 the ‘Pollution Free Sebes’ initiative group requests the authorities responsible for granting the integrated environmental authorisation for the Kronospan Sebes industrial platform to reduce the permitted levels of the cancer-causing dust substance PM10 from 50 mg/Nmc to 20 mg/Nmc; as is stipulated in the provisions of Order 592/25 of June 2002. In its reply the regional environmental protection agency (REPA) Sibiu states that when it will set the limits of permitted levels it will consider this request as well as Best Available Techniques (BAT), the technical characteristics of the unit, its geographical placement and the local environmental conditions.

In May 2008 ICDER officially warns the Brasov environmental guard about the fact that SC Kronospan Brasov executes construction works that are based on an expired environmental accord. ICDER requests for the company to be sanctioned and for the construction works to be halted. In its reply the environmental guard confirms that the environmental accord has expired and that it has ordered for the construction works to be halted.


In May 2008
the ‘Pollution Free Sebes’ initiative group warns the national environmental protection agency (NEPA) about the fact that Vasile Todea, the Director of the Alba EPA has a commercial and profit-making relationship with Kronospan Sebes. According to Law 161/2003 on measures to prevent and sanction corruption such situation could constitute a conflict of interest. The relevant documentation submitted by the initiative group shows that Mr Vasile Todea is the sole shareholder of S.C.Luxor L.T.D.SRL, a company which has a commercial and profit-making contract with Kronospan Sebes. The letter also shows how on the other hand S.C.KRONOSPAN is currently in the authorisation procedure with the Alba EPA and that the final decision is in the hands of Mr Todea. As a result of this warning, a disciplinary commission that is part of the NEPA orders the dismissal of Mr Vasile Todea in this function as director of the Alba EPA.


In July 2008
CIDER warns the Brasov Local Council, the Brasov authority for Construction Control and the Brasov Police about the fact that SC Kronospan Brasov is carrying out construction works on the basis of an invalid authorisation. ICDER requests for the company to be sanctioned, for the construction works to be halted and for the illegal construction works to be demolished in conformity with the provisions of Law 50/1991. In its reply the Brasov town hall shows that it sanctioned the company and requesting that the “construction works must be halted and that any construction work must be executed according to the provision of the construction authorisation.” However, with this ‘solution’ the town hall ignores the invalidity of the construction authorisation and does not impose the demolition of the construction works carried out without any authorisation.


In July 2008
the ‘Pollution Free Sebes’ initiative group requests the NEPA to categorise formaldehyde as a cancer-causing substance in line with the definition and studies carried out by the World Health Organisation (WHO). This request is based on the fact that according to Romanian legislation (Governmental decision (HG) 490/2002 on the approval of the normative methodology to apply Emergency Governmental Ordinance (OUG) 200/2000 on the classification, packaging and labelling of dangerous chemical substances) formaldehyde is classified in group III of cancerous substances (this groups contains substances where there exists limited evidence for their cancer-causing effect) while the WHO classifies formaldehyde as a substance whereby there exists sufficient evidence to group it as a cancer causing substance. In its reply the NEPA states that such re-classification would require the modification of relevant European Directives which thereafter would need to be transposed by member states.


In August 2008
the ‘Pollution Free Sebes’ initiative group and CIDER participate in a public consultation in Sebes which is part of the procedure to obtain an environmental avis for the detailed urbanistic plan (PUD) of the new formaldehyde producing plant. Both groups submit legal arguments that show that if an environmental avis would be granted; then this would be illegal. The arguments first and foremost highlight how an environmental avis for the plant would contravene the provisions HG 1076/2004 on the environmental evaluation of plans and programs. In early September 2008 REPA Sibiu requests Kronochem to complete the documentation to obtain the environmental avis by asking the company to prove how their plan will respect the provisions of HG 1076/2004; including the ‘zero’ alternative etc.

In September 2008 CIDER initiates a court action against the Brasov Municipality and the Brasov Local Council. The action carries File No.6012/62/2008 and will be judged at the Brasov Tribunal. ICDER’s aim is to ensure the enforcement art. 18 al.1 of Law Nr.554/2004 and for the court to thus oblige the accused to issue the notification and to sanction Kronospan; in the sense of enforcing the fine against the company for executing construction works without an construction authorisation by ordering the halt of these works and the demolition of the works that were carried out without an authorisation.

In October 2008 ICDER intervenes to the defence of the environmental authorities in the court action Kronospan vs. the Brasov Environmental Guard. The company’s aim in this action is to secure the annulment of the inspection report by which it was assessed that Kronospan’s environmental accord for the PAL chipboard production unit expired. The company was thus fined and ordered to stop the works. The civil case carries file No. 9798/197/2008 and is registered at the Brasov Court.

In October 2008, CIDER intervenes in aid of the environmental authorities in the court case Kronochem Sebes vs. the Alba environmental guard. The company’s aim in this action is to secure the annulment of inspection report No.77/18.09.2007 which assessed that Kronospan built a unit to produce formaldehyde with a production capacity of 60000 t/a without an environmental accord. The file carries No. 3876/107/2007 and is registered at the Oradea court of appeal.

The Oradea court of appeal rejected ICDER’s request of intervention as well as the requests submitted by a group of citizens from Sebes arguing that the groups lack the procedural interest to intervene. The court admitted Kronochem’s action by annulling inspection report No. 77/18.09.2007. ICDER will submit a complaint to the Aarhus Convention Compliance Committee on access to information, public participation and access to Justice in environmental matters.

In October 2008 ICDER intervenes alongside several citizens from Sebes in aid of the environmental authorities in a court case Kronochem Sebes vs. the Alba environmental guard. The company’s aim in this action is to secure the annulment of inspection report No. 110/29.10.2007 which assessed that Kronochem built a formaldehyde production unit without an environmental accord. The file carries Nr. 4020/107/2007 and is registered at the Oradea court of appeal.

The Oradea court of appeal admitted Kronochem Sebes’ appeal and send the cause to the Bihor Tribunal for re-trial.

ICDER will continue to offer assistance to the local initiative group and to other directly affected/interested citizens regarding their procedural rights during the environmental licensing procedures by raising public awareness and media attention. This includes detailing the full impact of the proposed activities to the people’s health and the environment, highlighting legal problems faced by the company and warning competent authorities, administrative and judicial, from Romania and at the EU level about irregularities committed during the licensing procedure.

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