United States
Environmental Protection
Agency
Office of Enforcement and
Compliance Assurance
(2251A)
November 1998
www.inece.org
CITIZEN ENFORCEMENT:
TOOLS FOR EFFECTIVE
PARTICIPATION
Capacity Building Support Document
for Environmental Compliance
and Enforcement Programs
>
EUROPEAN
COMMISSION
3
Ministry of Housing,
Spatial Planning,
and the Environment
(VROM) The Netherlands
ENVIRONMENTAL
LAWHNSTITUTE
Environment/
Environnement
Canada
ENVIRONMENT
AGENCY
WORLD BANK
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CITIZEN ENFORCEMENT:
TOOLS FOR EFFECTIVE PARTICIPATION
Capacity Building Support Document
for Environmental Compliance and
Enforcement Programs
Fifth International Conference on Environmental Compliance and
Enforcement
November 16 - 20,1998
Monterey, California, U.S.A.
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Preface
This document, Citizen Enforcement: Tools for Effective Participation, was prepared as one of
eight Environmental Compliance and Enforcement Capacity Building Technical Resource
Documents that developed to support the International Conferences on Environmental
Compliance and Enforcement and ongoing exchange under the International Network for
Environmental Compliance and Enforcement. Additional country examples and tools will be
added based upon comments received during and following use at the Fifth International
Conference in Monterey, California, November 16-20, 1998. These documents were developed
as resource documents to be used by government officials and others who have responsibility for
developing and/or enhancing environmental compliance and enforcement programs. The
Resource Documents include:
Financing Environmental Permit, Compliance and Enforcement Programs,
Source Self-Monitoring, Reporting, and Recordkeeping Requirements: an
International Comparison
Multimedia Inspection Protocols,
Communications Strategies for Environmental Enforcement Programs, and
Transboundary Trade in Potentially Hazardous (Waste, Pesticides and Ozone
depleting) Substances.
International Inspector Training Compendium, Course and Program Comparison
Country Progress/Self Assessment Reports on Environmental Compliance and
Enforcement
Citizen Enforcement: Tools for Effective Participation
Consistent with the goals of the Executive Planning Committees for the Fourth and Fifth
International Conferences to build capacity internationally for environmental compliance and
enforcement, this document addresses
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The information presented can be used by government officials to help design or enhance their
.own environmental enforcement programs with the objective of achieving a higher level of
compliance.
Citizen Enforcement: Tools for Effective Participation, and the other documents listed above are
available on the International Network for Environmental Compliance and Enforcement's
(DSJECE) Internet site: http://www.inece.org. They also are available from the INECE Secretariat
at the addresses below. Finally, the INECE Secretariat seeks your comments as to whether these
documents serve their intended purpose and how they might be improved. Please send comments
in writing to the INECE Secretariat in care of Ms. Wasserman or Mr. Gerardu at the following
addresses:
Ms. Cheryl Wasserman
Associate Director for Policy Analysis
Office of Federal Activities
Office of Enforcement and Compliance Assurance
U.S. Environmental Protection Agency
401 M Street MC 2251-A
Washington, D.C. 20460
FAX 1-202-564-0070
PHONE 1-202-564-7129
E-MAIL wasserman.cheryl@epa.gov
or
Mr. Jo Gerardu
Head, Strategy, Planning and Control Division
Inspectorate for the Environment
The Netherlands Ministry of Housing, Spatial Planning and the Environment
IPC680
P.O. Box 30945
2500 GX Den Haag
The Netherlands
FAX 1-31-70-339-1300
PHONE 1-31-70-339-2536.
E-MAIL gerardu@IMH-HI.dgm.minvrom.nl
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Acknowledgments
This document is part of a series of capacity building support documents for environmental
compliance and enforcement prepared for the International Conferences on Environmental
Compliance and Enforcement. This document on the citizen role in environmental compliance and
enforcement was compiled for the Fifth International Conference on Environmental Compliance
and Enforcement, November 16-20, 1998, Monterey, California, by the International Network
on Environmental Compliance and Enforcement partnership.
Citizen Enforcement: Tools for Effective Participation, capacity building support document was
prepared by the Environmental Law Institute under United States Environmental Protection
Agency Cooperative Agreement No. CR-822795-01. ELI staff who contributed to the report
include Susan Casey-Lefkowitz, Suellen Keiner, and Jill van Berg. ELI would like to thank those
who have contributed to the collections of materials on the role of citizens in environmental
compliance and enforcement for prior conferences, such as Professor Michael Axline, University
of Oregon and Joel Reynolds, Senior Attorney, Natural Resources Defense Council.
ELI also appreciates the work of those who contributed papers on this topic to the International
Conferences on Environmental Compliance and Enforcement, including participants from
Australia, Bangladesh, Belgium, Colombia, India, Kenya, Malawi, Nepal, the Netherlands, the
Philippines, Poland, Russia, Tanzania, Ukraine, and the United States. References to these papers
can be found in Appendix I.
Although the information in this document has been funded by the United States Environmental
Protection Agency, it may not necessarily reflect the views of the Agency and no official
endorsement should be inferred.
m
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IV
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Table of Contents
Preface
Acknowledgments
1 Introduction
2 Setting the Stage for Effective Citizen Participation
2.1 Recognition of Environmental Rights
2.2 Clear Environmental Standards
2.3 Access to Environmental Information
2.4 Access to Justice and "Standing"
2.5 Independent and Well-informed Judiciary
3 Citizen Role in Domestic Environmental Compliance
and Enforcement
3.1 Monitoring Compliance
' 3.2 Public Complaint Processes
3.3 Citizen Enforcement Litigation
3.4 Settlement of Enforcement Actions
4. Citizen Role in International Environmental
Compliance and Enforcement
4.1 Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental
Matters
4.2 North American Citizen Submissions on Environmental
Enforcement Matters
4.3 World Bank Inspection Panel
i
iii
3
4
4
6
7
8
8
10
11
13
16
16
18
19
Appendix I:
Appendix II:
Appendix IK:
Appendix IV:
Appendix V:
Appendix VI:
Appendix VII:
International Conference Proceedings References
Selected Resources
1998 Convention on Access to Environmental Information, Public
Participation and Access to Justice in Environmental Matters
Sample Right-to-Know Provision
Sample Citizen Enforcement Suit Provision
Good Neighbor Agreement Model
Sample Intent to Sue Letters and Legal Pleadings in Citizen
Enforcement Litigation
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Fifth International Conference on Environmental Compliance and Enforcement
1 Introduction
This document, Citizen Enforcement: Tools for Effective Participation, is part of a series of capacity
building support documents prepared for the International Conferences onEnvironrnental Compliance
and Enforcement. It was prepared for the Fifth International Conference to be held in Monterey,
California, U.S.A., November 16-20, 1998. This series is for use as a resource by government
officials and citizen enforcers.
Citizen Enforcement: Tools for Effective Participation pulls together in one document experiences
and understandings of the various ways in which citizens around the world can be involved in
environmental compliance and enforcement. The document relies on the efforts of government and
citizen enforcers, primarily as documented in International Conference proceedings and workshop
reports.
The role of citizens in environmental compliance and enforcement is fairly new in most countries.
Historically, public participation has not included clear mechanisms for citizen involvement in
programs and actions to achieve compliance with and enforce environmental law. Perhaps the most
well-known mechanism is direct citizen enforcement through lawsuits. However, there are many other
opportunities for citizens to supplement governmental efforts. For example, in some countries citizens
contribute to monitoring or inspections. Citizens have much to add to the negotiation and settlement
process of enforcement actions. Finally, there are a growing number of international mechanisms for
citizen participation in enforcement, as demonstrated by the Commission on Environmental
Cooperation's citizen submission mechanism, the World Bank Inspection Panel, and the new
Convention on Access to Environmental Information, Public Participation and Access to Justice hi
Environmental Matters.
As citizens bring their knowledge of local affairs and the added resources of their time and energy to
environmental compliance and enforcement, governments are beginning to establish processes to
facilitate citizen participation. These include guidelines for citizen monitoring, programs for citizen
inspections, public complaint processes, provisions for citizen enforcement suits, and guidelines for
citizen participation hi settlements. Governments have found that giving citizens the proper tools can
enhance government enforcement efforts.
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Fifth International Conference on Environmental Compliance and Enforcement
This document gives an overview of how citizens can and do participate in domestic environmental
compliance and enforcement efforts, as well as how governments can facilitate this participation. It
also looks at several international mechanisms for citizen participation in environmental enforcement,
as well as at the growing role for international institutions in facilitating citizen participation in
enforcement. It is organized to follow the set of principles for effective public participation in
enforcement developed during a workshop at the Fourth International Conference. It begins with the
list of prerequisites to effective public participation identified during the workshop at the Fourth
International Conference which include:
Recognition of Environmental Rights
Clear Environmental Standards
Access to Environmental Information
Access to Justice and "Standing"
Independent and Well-informed Judiciary
It then reviews examples and how citizens participate in four different elements of the compliance and
enforcement program. Some of these ways to participate are more commonplace than others. They
include:
Monitoring Compliance
Public Complaint Processes
Citizen Enforcement Litigation
Settlement of Enforcement Actions
The INECE partnership recognizes that citizens may also serve to promote compliance, however,
there are no current examples in support of these activities. When they are identified they too will
be added to a future version of this document.
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Fifth International Conference on Environmental Compliance and Enforcement
2 Setting the Stage for Effective Citizen Participation
Effective public participation in environmental compliance assurance and enforcement
actions requires more than a willing citizenry. In countries where citizen involvement in
enforcement is fairly common., and in countries where it is just beginning, there are several
fundamental regulatory and institutional elements that are necessary for effective citizen
participation. These prerequisites include recognition of environmental rights and a citizen
cause of action, clear environmental standards, access to information, standing, and an
independent and well-informed judiciary. Where even one of these elements is missing,
citizens may find it difficult to participate in the environmental enforcement process.
2.1 Recognition of Environmental Rights
Citizen participation in the environmental enforcement process is usually built around the
recognition of certain rights beyond personal property rights. In many countries, citizen
participation in environmental enforcement is grounded in the recognition of a right to a
clean environment. When granted this right, citizens have a platform on which to stand in
both administrative proceedings and court cases.
Many countries' constitutions expressly establish environmental rights and assign the state
responsibility for protecting those rights. For example, the Constitution of Chile guarantees
all persons the right to live in an
environment free from contamination, and
assigns the state the duty to protect this
right and to preserve nature. Similarly, in
the Philippines, the constitution instructs the
state to protect and advance environmental
rights.
"The State shall protect and advance the
right of the people to a balanced and
healthful ecology in accord with the rhythm
and harmony of nature." Article 2, Section
16, Constitution of the Philippines (1986).
Other countries have more general
constitutional provisions that have been determined by courts to encompass environmental
rights. For example, in Argentina, courts have used amparo, a constitutional guarantee that
can be loosely translated as "protection," to defend individual or collective environmental
rights derived from statutes, international treaties, and the constitution itself. In India, the
Supreme Court has extended the constitutionally guaranteed right to life to include the right
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to a clean and hygienic environment and has held that a person genuinely interested in the
protection of environment on behalf of the society or community may appeal to the Supreme
Court of India for the preservation of this fundamental right.
2.2 Clear Environmental Standards
Clear permitted emissions levels and clear standards of conduct to which actual emissions
and facility or government actions can be compared are important pre-requisites for effective
citizen participation in enforcement efforts. When a citizen has information concerning
required emissions levels, deadlines for compliance, or other enforceable substantive
requirements in statutes, regulations, or permits, it is easier to identify and prove violations.
A law that simply prohibits "harmful" or "dangerous" pollution would be much more
difficult to enforce consistently and would require citizen enforcers to tackle complicated
questions of science and policy. With clear standards of conduct, the only question at issue
in most enforcement actions can be whether the defendant violated the legal standard, order,
or permit.
For example, in the United States, the implementing regulations for most major
environmental statutes set quantified pollution limits that entities such as states and
municipalities must meet within specified time frames. To achieve area-wide compliance
levels, regulatory agencies with jurisdiction over environmental matters issue industrial
sources individual permits that establish specific emission and effluent limits for each
facility. Historically, these standards have enabled citizen enforcers to hold violators
accountable for their actions.
2.3 Access to Environmental Information
To effectively participate hi environmental enforcement, citizens must be able to access
information held by the government, such as monitoring data, environmental permits,
government reports, industry records, and other relevant sources of information that
document the status of admmistrative proceedings, government decisions, environmental
quality, emissions, and releases.
Some countries have laws that specifically guarantee the right to access environmental
information. This right is usually subject to certain limitations such as exemptions for
industry trade secrets and matters of national security. For example, Member States of the
European Union are implementing access to environmental information legislation pursuant
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"Save as provided in this Article, Member
States shall ensure that public authorities
are required to make available information
relating to the environment to any natural or
legal person at his request and without his
having to prove an interest." European
Council Directive 90/313/EEC on
Freedom of Access to Information on the
Environment, Article 3(1).
to EU Directive 90/313/EEC, which calls for
public access to information on the
environment held by public authorities. The
Directive also requires an appeal process for
denials of access to information.
Other countries have general provisions of law
providing for access to government-held
information, which can often be extended to
include environmental information. For
example, the Canadian Access to Information
Act guarantees citizens the right to
information held by the federal government, including environmental information. Like the
EU Directive, this Act provides for an appeal process for denied requests. For these and
similar laws to be effective, clear procedures for filing information requests are important.
For example, procedures can clearly address responsibility for answering requests, response
time limits, affordability of the information, and an appeals process.
In addition to requirements that information be provided on request, some countries are
affirmatively providing certain types of information to the public. For example, under the
concept of "community right-to-know," some countries require that industry report on
pollutant releases and transfers to the government. The government in turn is required to
make this information publicly accessible. Pollutant release and transfer registers (PRTRs)
enable citizens to monitor industrial environmental performance by providing detailed
facility-specific data on types, locations, and amounts of hazardous substances released or
transferred. In several countries, including Canada and the United States, certain
corporations are required by law to compile and submit this data to the federal government,
which then makes the information publicly accessible in a user-friendly format over the
Internet. Equipped with detailed information on facility-specific emissions, citizens can
track compliance, work directly with corporations to encourage compliance, and help
governments identify violations. The specific type of information reported in PRTRs and the
range of facilities covered vary from country to country. Key elements that define the scope
of PRTR include: the types of facilities required to report; the thresholds for staff size and
chemical use above which a facility must report; and the types of pollutants covered and how
their use is quantified.
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Fifth International Conference on Environmental Compliance and Enforcement
2.4 Access to Justice and "Standing"
To seek judicial resolution of alleged violations, citizens must have access to an appeals
process, including standing to appear in court. Standing for citizen participation is often
linked to a personal stake in the outcome of the case. A citizen may have to show that he or
she has suffered or is threatened by some kind of harm, and often must have been a party to
prior proceedings. How broadly the concept of "harm" is defined usually gives the scope of
standing, both hi prior proceedings and in appeals.
For example, in the United States, federal environmental statutes grant citizens broad access
to both administration proceedings and appeals processes. In addition, most environmental
laws contain specific citizen enforcement suit provisions, granting standing to any person.
However, when citizen suits are not specifically authorized, courts have great power to limit
standing to those representing personal interests rather than the public interest. India, on the
other hand, has atradition of citizens having access to justice on behalf of me public interest,
whether or not there is specific statutory authorization for citizen suits.
Even where a law seems to grant citizens standing to become party to a proceeding, this
access can be controversial when requested by environmental groups. For example, in
Slovakia, the Supreme Court denied standing to a forest protection group to become party
to an administrative proceeding concerning their local forest. However, in a few countries,
environmental organizations are expressly
granted standing to represent the "public
interest" through legal proceedings. For
example, in the Netherlands, the
Environmental Protection Act stipulates
that the interest for which private
organizations were established is regarded
as sufficient interest in an environmental
case. In Indonesia, hi a 1989 case, the
Jakarta District Court granted an
environmental NGO, the Indonesian Forum
for the Environment, legal standing to sue
five national government agencies and the
pulp-and-paper industry to enforce
environmental laws.
It is possible for environmental organizations
to use civil proceedings to protect the
environment. It is not necessary to prove that
a specific individual interest has been
harmed. The fact alone that environmental
organizations tried to protect the interests of
the environment was sufficient. De Nieuwe
Meer Case, Supreme Court of the
Netherlands, 17 June 1986.
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Fifth International Conference on Environmental Compliance and Enforcement
In some countries, standing in an environmental suit hinges on prior involvement with the
case during administrative proceedings. For example, in Hungary, a local environmental
association was granted standing on appeal because it had proven interest in the case by
participating in previous administrative proceedings.
2.5 Independent and Well-Informed Judiciary
When administrative avenues for citizen enforcement fail, the judicial system is often the
final resource for appealing environmental conflicts. For this reason, it is imperative that the
judiciary be established and operated in manner that facilitates redress of environmental
harms.
For access to justice in environmental matters to be effective, it is critical to have a judiciary
that is independent of political pressures. If the judiciary is closely associated with
government agencies, citizen enforcement actions against those agencies may be impractical.
Citizen suits against industry or the government also may be disadvantaged if judges rely on
political support for reappointment or reelection.
For example, Brazil's judicial system is designed specifically to free the judiciary of political
allegiances. Instead of election or
appointment, judges earn their positions
based on their performance on a standard
examination. Once in office, they can never
be removed. In India, being independent
and well-respected by society has allowed
the judiciary to confront difficult
environmental problems and require
individuals, government agencies, and
industry to comply with the law and accept
the costs associated with pollution control.
For the judiciary to be truly protective of environmental rights and the public interest, it is
also important that judges be educated about environmental issues and related legal topics,
such as emerging scientific principles, the concept of risk and future harm, and the practice
of public interest litigation. Continuing legal education is, therefore, critical to the ultimate
usefulness of the judicial system in resolving environmental disputes.
"It is the Courts and more importantly the
Judges who man these Courts who are
required to give body and soul to these
vibrant concepts [of environmental rights]."
Justice M. F. Saldanha, High Court of
Karnataka, Bangalore, India, August
1998.
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Fifth International Conference on Environmental Compliance and Enforcement
3 Citizen Role in Domestic Environmental Compliance and
Enforcement
3.1 Monitoring Compliance
Monitoring compliance through collecting and analyzing information on the compliance
status of the regulated community is one of the most important elements of an enforcement
program. Citizens can contribute to monitoring by tracking industrial environmental
performance through independently-compiled emissions data or compliance reports produced
by regulated entities. Citizen monitoring can help government agencies identify violations
and is particularly important when resources for government monitoring are scarce or
insufficient.
In some countries, governmental institutions make use of citizen monitoring that may already
be taking place independent of any coordinating government program. However, many
government agencies find that establishing a program to clearly communicate their
information needs to citizen monitors provides for collection of information more directly
useful in the identification of potential environmental violations. For example, in the United
States, the state of Virginia has established a coordinator of citizens who volunteer to
monitor streams in the state. This program allows citizens to collect information needed by
the state water program to detect potential problems or violations around the state. It also
provides citizens with a direct contact in the government to receive the information they
collect and channel it to the proper authorities.
Another formal vehicle for public participation in monitoring is the establishment of
coordination agreements between government agencies and private organizations. For
example, in the Philippines, the emergence of multi-party monitoring has enabled local
community residents, private organizations, and industrial project proponents to join
representatives from the Department of Environment and Natural Resources (DENR) to
undertake post-Environmental Impact Analysis (EIA) compliance monitoring. The DENR
is moving to institutionalize this system of multi-party team monitoring by creating, in each
regional office, a Regional Community Advisory and Monitoring Committee whose
membership will include NGOs and the private sector. The committees are expected to be
involved in all phases of EIA, including compliance monitoring.
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Fifth International Conference on Environmental Compliance and Enforcement
Inspections are an important mechanism for monitoring. Typically, government agencies
with jurisdiction over environmental regulations dispatch inspectors to visit companies to
see first-hand whether a facility is in compliance with environmental standards or required
practices. Failed inspections often provide a basis for further agency efforts to bring
facilities into compliance.
Sample Legal Provision for Citizen
Participation in Inspections
"When the Federal inspection results from
information provided to the Secretary by any
person, the Secretary shall notify such person
when the Federal inspection is proposed to be
carried out and such person shall be allowed
to .accompany the inspector during the
inspection." United States Surface Mining
Control and Reclamation Act, 30 U.S.C.
Some countries allow citizens to
participate in compliance inspections
conducted by government officials.
Usually, the citizen must have been
involved in the complaint process prior to
the inspection. For example, water quality
legislation in Argentina allows private
parties who have filed a complaint about a
facility to participate in any inspection of
the facility during the investigation.
In some countries, government agencies
are allowed to contract with citizen groups
or other associations to enlist their
assistance in inspection efforts. For
example, under Estonia's Nature
Protection Act, citizens can be deputized as "public inspectors" to monitor compliance with
laws, regulations, and permits concerning hunting, fishing, and forestry. They are permitted
to write protocols about violations of nature protection rules, but they cannot collect
penalties. In Poland, a similar institution exists in the form of the Nature Protection Guard,
an organization affiliated with conservation associations that monitors compliance with
nature protection laws. Authorized members of the guard have the right to enforce nature
conservation laws directly through a procedure of ticketing violators and imposing small
fines. This model has yet to be transferred to the pollution control area through regulation,
but there is a legal framework, under the Polish Environmental protection Act of 1980, for
deputizing trade unions and other associations as inspectors.
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3.2 Public Complaint Processes
In many countries, public complaint processes facilitate citizen participation in enforcement
efforts. Typically, the government establishes a mechanism for citizens to submit complaints
concerning activities that are causing environmental harm. The mechanism can require
government agencies to address complaints and respond in a timely manner. Public
complaints can be very useful in drawing government attention to potential violations that
may otherwise go unrecognized.
Citizens may be able to use informal complaint mechanisms or petitions to draw government
attention to enforcement issues. In Mexico, for example, the federal environmental law and
parallel state laws enable any person to file a complaint with the appropriate government
agency regarding activities that cause environmental harm or ecological imbalance. The
agency is required to investigate the matter
and provide a prompt response.
Throughout Mexico, this process is the
principal vehicle for public participation in
administrative enforcement matters. In some
states, the process has been the principal
driving force behind enforcement efforts.
Some states have established telephone
hotlines to receive citizen complaints or set up
a toll free numbers or "green" mailboxes to
facilitate the complaint process.
Some countries have an independent
complaint committee or designated staff
member (ombudsman) at the national or local
levels to receive and process citizen
complaints. The position of ombudsman is
usually funded by, but independent of, the
government and may be competent to deal
with complaints on the basis of statutory
rules. The laws creating the ombudsman
position often regulate what kinds of
complaints may be reviewed.
Mexico's Citizen Complaint Process
The Mexican general environmental law and
its predecessors establish a system for public
complaints to be filed for any incident, act, or
omission that falls within the jurisdiction of
the Federal Government and produces an
ecological imbalance or environmental
damage, or which violates any environmental
law provisions. The Mexican government has
the obligation to receive, investigate, and
respond to the administrative complaints and
claims of citizens concerning failure to
comply with environmental law. The
government has specific time limits to inform
the complainant of the procedures being
undertaken, and to inform him or her of the
results concerning verification of the alleged
violations and the response measures being
taken.
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Poland, for example, created a position called the Commissioner for Civil Rights Protection.
The Commissioner's role is to receive and manage complaints about infringements of
citizens' rights and freedoms determined by the Constitution and other provisions of law.
The Commissioner is not limited to environmental issues, but environmental issues fall
under the Commissioner's jurisdiction and historically have been a focus of activity. The
Commissioner does not have authority to rule on administrative matters, but can recommend
or appeal decisions, suggest legislative initiatives or procedural amendments, and pursue
solutions to specific violations to promote compliance with the law.
3.3 Citizen Enforcement Litigation
In many countries citizens can be given the right to assume or share the primarily
governmental function of taking a potential violator to court to enforce the law. Citizen
enforcement suits generally take one of two forms. Members of the public or environmental
associations can sue industrial facilities (including regulated government facilities) directly
for violating applicable laws or rights. Alternatively, members of the public can sue the
government for failure to perform non-discretionary enforcement duties, with the aim of
obtaining a court order requiring the appropriate agency to enforce the law.
In either case, citizen enforcement suits are designed to protect the public interest by
allowing citizens to help ensure that environmental laws and rights are properly upheld. To
achieve this purpose, countries throughout the world have established a variety of
mechanisms for authorizing citizen enforcement suits. The following are some common
models that have enabled citizens to utilize their judicial systems to enhance environmental
enforcement.
Some countries grant citizens access to courts for the express purpose of environmental
enforcement and provide specific authority in their environmental statutes for citizen
enforcement suits concerning those laws. For example, in the United States, all major
federal environmental statues grant citizens the right to bring suit against any person
(including individuals, corporations, associations, and governments) to enforce the
provisions of the law.
In some countries, the right to enforce environmental laws in-court is derived from general
provisions of the civil code. For example, in Hungary, the civil code allows individuals to
sue others for violating an obligation not to disturb others needlessly, "especially neighbors."
While this provision is not specific to environmental law, it can be used by citizens to
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Fifth International Conference on Environmental Compliance and Enforcement
address environmental violations. In the case of pollution, the "neighborhood" encompassed
is not restricted to property immediately adjoining the site of polluting activity, but instead
includes anyone affected by the pollution.
Some countries allow citizens to go to court to enforce environmental laws in the public
interest. For example, in India, citizens are granted broad access to bring public interest law
suits to defend their human and social rights. Litigants need not prove a violation of law, as
in countries where access to courts is
established in environmental statutes, but
they must demonstrate a violation of natural
rights. Because these suits are filed in the
public interest, citizens must base their
claims on damages to society - not solely to
themselves.
Many countries, particularly those in Latin
America, authorize citizens or citizen
organizations to bring popular actions,
similar to class action law suits, to enforce
environmental laws. For example, in
Colombia, citizen groups can bring suit
against any public or private entity causing
threat of harm.
Similarly, Brazil allows citizens to file
popular actions against public administrative
acts that may be injurious to the public
patrimony of the federal, state, or local
government. However, in Brazil, only
individual citizens may file popular actions;
legal entities such as associations,
corporations, or the state may not.
Nevertheless, popular actions only serve to
protect community rights, not the individual
rights of the plaintiff. In Brazil, popular
actions may be used to remedy
administrative violations.
Elements of Citizen Suits Under U.S.
Environmental Laws
Statutory Standing: Any person has
standing to sue any other person (including
the government) who is violating the
requirements of the given law.
Notice to Government: Before filing suit, a
citizen must notify state and federal
agencies as well as the alleged violator that
a lawsuit is pending. As long as the
violation continues and the state or federal
government is not pursuing a diligent
enforcement action against the alleged
violator in court, the lawsuit may be filed.
Fee Shifting: If the citizen wins, the court
costs and attorney fees associated with
bringing the action may be warded to the
plaintiff.
Remedies: The court may order the
defendant to stop the violating activities.
Some statutes allow the citizen to ask the
court to impose civil penalties upon the
violator, payable to the U.S. Treasury.
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Granting citizens the ability to bring enforcement suits does not necessarily mean that
citizens will be able to do this in practice. Citizens also need to consider the costs of lawyers,
court fees, and expert witnesses. In some countries, citizen suit provisions in environmental
laws contain fee-shifting provisions that allow citizen enforcers who prevail on significant
issues to recover the costs of litigation, including reasonable fees for attorneys and experts.
Citizen enforcers are not responsible for the fees of the opposing side if the citizens do not
prevail.
For citizen enforcement suits to be effective, courts need to have authority to impose
effective remedies. Citizen suits can only supplement governmental enforcement actions to
curb pollution if courts possess and use sufficient power to stop and deter violators.
Environmental citizen suit provisions may allow courts to award civil penalties and to issue
mandatory injunctions.
3.4 Settlement of Enforcement Actions
In some countries environmental enforcement actions, including citizen enforcement actions,
may be settled in negotiation among the parties. To ensure that settlements are enforceable,
they are often crafted as court negotiated consent decrees, with interim deadlines for specific
actions and penalties. In many cases, there is a role for citizens in this process. In addition
to citizen suit settlements, citizens who are parties to, or have an interest in, a government
enforcement suit often may participate in negotiating the terms of the consent decrees. For
example, in the United States, settlements typically include requirement that violations cease,
feasible remediation of harm, and monetary penalties to deter noncompliance. In civil
judicial cases, the U.S. Department of Justice seeks public comment on lodged consent
decrees. In certain administrative enforcement actions, there are also public notice
requirements that are followed before a settlement is finalized.
In the United States, U.S. EPA has developed a policy on "supplemental environmental
projects" (SEPs). SEPs are environmentally beneficial projects which a violator agrees to
undertake in settlement of an enforcement action. The violator is still required to comply
with the law; the SEP usually means a reduction in the civil penalty in exchange for projects
regarding public health, pollution prevention, pollution reduction, environmental restoration,
assessments and audits, environmental compliance promotion, or emergency planning and
preparedness. U.S. EPA issued the final Supplemental Environmental Projects Policy in
April 1998. The Policy sets out the types of projects that are permissible as SEPs, the penalty
mitigation appropriate for a particular SEP, and the terms and conditions under which they
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may become part of a settlement. The U.S.
EPA SEP Policy recommends that EPA make
special efforts to seek input on project
proposals from the local community that may
have been adversely impacted by the
violations.
A related emerging mechanism in the United
States for achieving citizen-industry
partnerships during the settlement of an
enforcement case is the use of Good Neighbor
Agreements. Under Good Neighbor
Agreements, companies enter into negotiated
contracts with workers, local community
members and associations to establish a
framework for public assessment of industrial
environmental conditions. Common elements
of Good Neighbor Agreements include
provisions for public disclosure of relevant
company information and stakeholder audits,.
whereby citizens engage in direct, on-site
evaluations of facilities to identify changes that
may be needed to ensure environmental
compliance, safety, and sustainability. Good
Neighbor Agreements can also provide a
forum for addressing community
recommendations for improvements in
environmental protocol.
Each Good Neighbor Agreement is unique, because the parties, conditions, and issues vary
significantly among cases. However, the Rhone-Poulenc Community Audit Agreement
(RPCAA) in Texas serves as a good example for illustrating the fundamental elements of a
typical agreement. The RPCAA provided for a safety and environmental audit to be financed
by Rhone-Poulenc and integrated into the company's hazardous waste facility permit.
Under the agreement, the auditor was to be approved and accompanied by a committee
comprised of community group members and facility workers. Citizens were also given
Common Elements of Citizen-Industry
Agreements
Commitments to Community and
Workforce
Pollution Prevention
Remedial Action
Accident Prevention and
Preparedness
Local Hiring
Infrastructure Commitments
Philanthropic Policy Reforms
Rights and Resources for Neighbor and
Workers
Community-selected Oversight
Bodies
Right to Inspect
Funding of Independent Experts
Right-to-Rnow Provisions
Notifications and Studies
Whistleblower Protection
Enforcement of Agreement
(from Sanford Lewis, The Good Neighbor
Project for Sustainable Industries, 1996)
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permission to conduct additional inspections by appointment. The scope of the audit
included regulatory compliance, safety training, accident prevention, emergency response,
waste analysis and information systems, monitoring programs, and waste minimization
practices. The agreement also provided for public disclosure of company documents
including: a hazard assessment and risk analysis; lists of accidents, upsets, and corrective
actions; and waste minimization and reduction plans. In the agreement, Rhone-Poulenc
consented to "negotiate in good faith" any recommendations resulting from the audit.
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Fifth International Conference on Environmental Compliance and Enforcement
4 Citizen Role in International Environmental Compliance
and Enforcement
Because many environmental issues and problems transcend national borders and fall outside
the traditional realm of government jurisdiction, international and transboundary
enforcement mechanisms are becoming an increasingly important avenue for citizen
participation in environmental enforcement matters. Fora for international and
transboundary citizen enforcement efforts include domestic and international court systems,
regional and multilateral institutions, international treaties, and international cooperation.
This section looks at three examples of international and transboundary mechanisms that
enable citizen participation hi environmental enforcement.
The 1998 Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters is the first international legal agreement
placing an obligation on Parties to grant access to justice for citizens in the domestic
implementation of the Convention. The Commission on Environmental Cooperation
provides amodel for aregional forum for gathering information following citizen complaints
about alleged violations of domestic environmental law. The World Bank is the first
multi-lateral institution to set up an information gathering mechanism, again based on citizen
complaints to investigate alleged violations of its own internal environmental policies and
procedures.
4.1 Convention on Access to Information, Public Participation in
Decision-Making and Access to Justice in Environmental Matters
The Convention on Access to Information, Public Participation in Decision-Making, and
Access to Justice in Environmental Matters is the fruition of two years of intensive
government negotiation in the United Nations Economic Commission for Europe (UNECE).
In June 1998,35 countries and the European Community signed the Convention.
The Convention creates obligations that parties are to implement domestically. The three
principles of the draft Convention, broadly stated, are: (1) the public should have access to
environmental information, with limited, explicit exceptions; (2) the public should have a
right to participate in the environmental decision-making process and have that participation
taken into account in the decision-making process; and (3) the public should ultimately have
access to an independent and impartial review process, capable of binding public authorities,
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Fifth International Conference on Environmental Compliance and Enforcement
when the public feels its rights have been infringed. The Convention is the first time that
States have agreed on the content of these principles and established their minimum
procedural elements.
Parties to the Convention are "concerned
that the effective judicial mechanisms
should be accessible to the public, including
organizations, so that its legitimate interests
are protected and the law is enforced."
Preamble, Convention on Access to
Information, Public Participation in
Decision-Making and Access to Justice in
Environmental Matters.
Article 9 of the Convention contains the
provisions on access to justice. Although
the article limits its provisions by affirming
that they be carried out in accordance with
national law, it still sets out some important
principles for domestic access to justice in
environmental matters. Article 9 confirms
the importance of having an impartial and
independent review procedure to enforce a
citizen's right to access information and to
participate in decision-making under the
Convention. The Convention refers to standing for individuals and organizations alike, and
promotes a very broad interpretation of what "sufficient interest" would mean for the
purposes of granting standing to individuals and organizations under the Convention. Under
Article 9, Parties to the Convention have the following obligations, always in accordance with
their national law:
Any person whose request for information was not dealt with in accordance with the
Convention shall have access to a review procedure before an independent and
impartial body, such as a court.
Members of the public shall have access to some type of a review procedure to
challenge the substantive and procedural legality of any decision subj ect to the public
participation provisions of the Convention.
Although the Convention leaves what constitutes "sufficient interest" for a member
of the public to have standing to national law, it does encourage that this be
determined "consistently with the objective of giving the public concerned wide
access to justice within the scope of the Convention." Especially non-governmental
organizations promoting environmental protection shall be deemed to have a
sufficient interest and to have rights capable of being impaired for review under this
Article.
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Members of the public shall have access to administrative or judicial procedures to
challenge acts and omissions by private persons and public authorities which
contravene provisions of its national law relating to the environment.
Access to justice procedures shall provide adequate and effective remedies, including
injunctive relief, and be fair, equitable, timely and not prohibitively expensive.
Decisions under Article 9 shall be recorded in writing and should be publicly
accessible.
Parties shall provide information to the public on the review procedures and shall
consider the establishment of appropriate assistance mechanisms to remove or reduce
financial and other barriers to access to justice.
4.2 North American Citizen Submissions on Environmental Enforcement
An environmental side agreement to the North American Free Trade Agreement (NAFTA)
created several mechanisms for public participation in promoting the enforcement of national
environmental laws in the United States, Mexico, and Canada. Under Articles 14 and 15 of
the North American Agreement on Environmental Cooperation (NAAEC), any citizen or
non-governmental organization can present a submission to the Secretariat of the
Commission for Environmental Cooperation (CEC) alleging that a NAFTA country is
failing to enforce its environmental laws. The remedy for a submission found to be valid is
the development by the CEC of a formal factual record of the case that can be made public.
The CEC has guidelines for submissions on enforcement matters under Articles 14 and 15
of NAAEC. As of October 1998, these guidelines were undergoing revision and public
comment and expected to be finalized in early 1999.
Since 1995, eighteen submissions have been made to the CEC to develop a factual record on
alleged violations of domestic law in Canada, the United States and Mexico. Only one case
has gone through the entire process, including the development of a factual record. A
coalition of Mexican environmental organizations initiated an inquiry into the Mexican
government's failure to enforce applicable domestic laws during the environmental impact
assessment phase of a construction project in Cozumel. In Jaunary 1996, the groups filed
a submission with the CEC alleging the government's failure. One month later, the CEC
Secretariat determined that the submission merited requesting a response from the Mexican
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Fifth International Conference on Environmental Compliance and Enforcement
government. In June 1996, after reviewing the government's response, the Secretariat
advised the CEC Council that a factual record was warranted. On the first day of August
1996, the Council unanimously instructed the Secretariat to proceed with developing a
factual record. The final factual record was concluded in October 1997 and was released to
the public.
CEC Citizen Submission Process
Secretariat determines that the Article 14(1) criteria are met.
Secretariat determines whether the submission merits requesting a
response from the Party named in the submission under Article 14(2).
In light of any response provided by that Party, the Secretariat may
recommend to the Council that a factual record be prepared, in accordance
with Article 15.
The Council, comprised of the environmental ministers (or their
equivalent) of Canada, Mexico and the United States, may then instruct the
Secretariat to prepare a factual record on the submission.
The final factual record is made publicly available upon a 2/3 vote of the
Council.
4.3 World Bank Inspection Panel
The World Bank is, thus far, the only one of the multilateral development institutions that
has created a method for citizen participation in enforcement of internal bank policies and
procedures hi bank-financed projects. The Bank created an Inspection Panel in 1994 to
investigate claims filed by affected parties and to review the Bank's compliance with its own
policies and procedures, some of which pertain directly to environmental matters.
Upon receiving a complaint, the Panel conducts an initial review, including a review of the
management's response to the claim. The Panel subsequently recommends to the Executive
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Directors whether a full investigation is warranted. The Executive Directors retain sole
power to authorize a full investigation. For investigations that go forward, the panel enjoys
broad investigatory powers including access to Bank management and staff. After the
investigation, the Panel issues a report with its recommendations to the Bank management
and the Executive Directors. Management has six weeks to respond and provide its own
recommendations to the Executive Directors, who make all final decisions.
The first major claim before the Panel alleged violations of environmental assessment,
resettlement, and other policies in the siting of the Arun III Hydroelectric dam. The Panel
had just completed a full investigation into the alleged violations when the Bank president
announced in August 1995 that the Bank would no longer support Arun III. The Bank
president cited the work of the Inspection Panel as one of the reasons for his decision.
The World Bank Inspection Panel Process
The Panel receives requests for inspection presented to it by an affected
party hi the territory of the borrower which is not a single individual (i.e.,
a community of persons such as an organization, association, society or
other grouping of individuals).
The affected party must demonstrate that its rights or interests have been
or are likely to be directly affected by an action or omission of the Bank
as a result of a failure of the Bank to follow its operational policies and
procedures with respect to the design, appraisal and /or implementation of
a project financed by the Bank (including such situations where the Bank
is alleged to have failed in its follow-up on the borrower's obligations
under loan agreements with respect to such policies and procedures)
provided in all cases that such failure has had, or threatens to have, a
material adverse effect.
If the Bank's Executive Directors decide to investigate the request, the
Panel is requested to review the available information and report their
findings.
Resolution No. 93-10, No. IDA 93-6
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Appendix I
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Fifth International Conference on Environmental Compliance and Enforcement
Appendix I
International Conference Proceedings References
International Conference on Environmental Enforcement, September 22-25,
1992, Budapest, Hungary
The Role of Citizens in Environmental Enforcement, E. Roberts, J. Dobbins, and M. Bowman
(page 531)
Citizens Role in Enforcement: a Spur, a Supplement, and a Substitute, R. Hallo (page 561)
Citizen Participation in U.S. Environmental Enforcement, R. Van Heuvelen and L. Breggin
(page 573)
From Public Disclosure to Public Accountability: What Impact Will It Have On Compliance, F.
Irwin (page 589)
Disclosure of Environmental Information and Enforcement of Environmental Law in Flanders:
The Complementary Role of Governmental Authorities andNGOs, R. de Baere (page 605)
Use of Public Disclosure in Environmental Programs to Enhance Compliance and Change
Behavior in the United States, P. Keough (page 611)
Third International Conference on Environmental Enforcement, April 25-28,
1994, Oaxaca, Mexico
Popular Actions and the Defense of the Environment in Colombia, G. Sarmiento (page 261)
Changing Environmental Behavior in the United States Through the Use of Public Disclosure of
Information, P.O. Keough (page 285)
Appendix I
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Fifth International Conference on Environmental Compliance and Enforcement
Fourth International Conference on Environmental Compliance and
Enforcement, April 22-26,1996, Chiang Mai, Thailand
The Evolving Role of Citizens in Environmental Enforcement, S. Casey-Lefkowitz, W.J. Futrell,
J. Austin, S. Bass (page 221)
Summary of Workshop: Public Involvement in Enforcement (page 511)
Environmental Enforcement and Public Advocacy in Ukraine, S. Kravchenko (page 515)
Intergenerational Responsibility in the Philippine Context as a Judicial Argument for Public
Action on Deforestation, A. Oposa (page 521)
Role of Public Participation in Enforcement, G. Sarmiento (page 527)
Fifth International Conference on Environmental Compliance and
Enforcement, November 16-20,1998, Monterey, California, U.S.A.
Peoples' Initiatives and Judicial Activism as a Catalyst of Institutional Reform, Saldanha,
Michael F. (page 13)
Citizen's Environmental Enforcement in Ukraine, Kravchenko, Svitlana (page 145)
UNECE Convention on Access to Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters: Towards More Effective Public Involvement in
Monitoring Compliance and Enforcement in Europe, Jendroska, Jerzy (page 153)
Good Governance and Community Participation as Tools to Make Environmental Enforcement
and Compliance Happen, Karanja, Mary N. (page 161)
Experience of Malawi: Public Role in Enforcement, Makawa, Ernest (page 169)
Public Access to Compliance Monitoring and Enforcement Data: A Look at the Sector Facility
Indexing Project and Other Agency Initiatives, Stanley, Elaine G. and Teplitzky, Andrew L.
(page 179)
Appendix I
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Fifth International Conference on Environmental Compliance and Enforcement
Public Influence on the Supervision and Enforcement of Environmental Law in the Netherlands,
van Dijk, J. (page 193)
Public Access to Environmental Information - Legal and Practical Problems: A Case Study of
Tanzania, Ringia, Deogratias William (page 203)
Citizen Environmental Enforcement in Russia: The First Successful Nation-Wide Case,
Mischenko, Vera and Rosenthal, Erika (page 419)
Environmental Compliance and Enforcement Through Public Litigation in the GodavariArea in
Nepal, Belbase, Narayab (page 423)
Civil Enforcement of Environmental Laws in Australia, Johnson, James (page 435)
Public Interest Environmental Litigation: A Tool to Ensure Compliance and Enforcement,
Habib, Ehsanul (page 445)
Appendix I
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Fifth International Conference on Environmental Compliance and Enforcement
Appendix II
Selected Resources
Readings
Axline, Michael, Environmental Citizen Suits (Butterworth Legal Publishers, 1993)
Babich, Adam, Citizen Suits: The Teeth in Public Participation, 25 ELR 10141-51
(Environmental Law Institute 1995)
Bonine, John, Susan Casey-Lefkowitz, Claudia Saladin, Jennifer Gleason, Country Report on
Public Participation: United States of America (ELI, CIEL, ELAW, 1998)
Branes, Raul, Citizen Participation in the Enforcement of Environmental Legislation:
Alternatives Available in Mexico, Proceedings First North American Conference on
Environmental Law, Phase II (FUNDEA, CIELAP, ELI, 1993)
Casey-Lefkowitz, Susan, A Comparative Look at the Role of Citizens in Environmental
Enforcement, National Environmental Enforcement Journal, Vol. 12 No. 5 (National
Association of Attorneys General, June 1997)
Clark, Dana, and Michael Hsu, A Citizen's Guide to the World Bank Inspection Panel, Center
for International Environmental Law (Washington, D.C., 1997)
Commission for Environmental Cooperation (CEC), Guidelines for Submissions on
Enforcement Matters Under Articles 14 and 15 of the North American Agreement on
Environmental Cooperation
Davis, SheltonH., Public Involvement in Environmental Decision-Making: Some Reflections
on the Western European Experience (The World Bank, Washington, DC., 1996)
Appendix II
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Fifth International Conference on Environmental Compliance and Enforcement
Desai, Bharat, Enforcement of the Right to Environment Protection Through Public Interest
Litigation in India (Indian Journal of International Law)
Environmental Law Institute, SLAPPs: A Guide for Community Residents and
Environmental Justice Activists (Washington, D.C., 1997)
Hallo, Ralph, Editor, Access to Environmental Information in Europe: The Implementation
and Implications of Directive 90/313/EEC (Stichting Natuur en Milieu, International
Environmental Law and Policy Series, Kluwer Law International, 1996)
Kaniaru, Donald, Lai Kurukulasuriya, and Prasantha Dias Abeyegunawardene, Compendium of
Summaries of Judicial Decisions in Environment Related Cases:With Special Reference to
Countries in South Asia, SACEP/UNEP/NORAD Publication Series on Environmental Law and
Policy No. 3 (Colombo, Sri Lanka, 1997)
Lewis, Sanford, Precedents for Corporate-Community Compacts and Good Neighbor
Agreements (The Good Neighbor Project for Sustainable Industries, 1996)
Pop, Cristian, Access to Environment-Related Information in Romania: A Guide (Ecoforum.
Civic and Environmental Attitude, 1996)
The Regional Environmental Center for Central and Eastern Europe, Status of Public
Participation Practices in Environmental Decision-Making in Central and Eastern Europe:
Case Studies of Albania, Bulgaria, Croatia, Czech Republic, Estonia, Hungary, Latvia,
Lithuania, FYR Macedonia, Poland, Romania, Slovak Republic and Slovenia (Budapest.
September 1995)
Regional Environmental Center for Central and Eastern Europe, Doors to Democracy: Current
Trends and Practices in Public Participation in Environmental Decisionmaking in the Newly
Independent States (Szentendre, Hungary, 1998)
Regional Environmental Center for Central and Eastern Europe, Doors to Democracy: Current
Trends and Practices in Public Participation in Environmental Decisionmaking in Central
and Eastern Europe (Szentendre, Hungary, 1998)
Appendix II
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Fifth International Conference on Environmental Compliance and Enforcement
Saladin, Claudia, Stephen J. Porter, and David Hunter, Using Law to Protect the Environment-
Case Studies from Around the World (Center for International Environmental Law,
Washington, D.C. 1996)
Santosa, Mas Achmad, Environmental Law Enforcement and Compliance in Indonesia:
Problems and Opportunities, Indonesia Journal of Environmental Law, Edition I (Indonesian
Center for Environmental Law 1996)
Van Eck, Ton, Ralph Hallo, Krisztina Horvath, Joost Rutteman, and Marga Verheiji. Editors,
Dutch Environmental Organisations Go To Court: An Example for Central and East
European NGOs (Milieukontakt Oost Europa, Amsterdam, The Netherlands, 1994)
World Bank, The Inspection Panel for the International Bank for Reconstruction and
Development, International Development Association: Operating Procedures (World Bank,
Washington, D.C., 1994)
Resources Contact Information
Environmental Law Association of Central and Eastern Europe and the Newly Independent
States
Garayu. 29-31. I/I
H-l 076 Budapest, Hungary
Tel/Fax: (36-1) 322-84-62
Email: CEELAW-L@rec.org
Center for International Environmental Law
1367 Connecticut Ave., N.W., Suite 300
Washington,. D.C. 20036
Tel: (1-202) 785-8700
Fax: (1-202) 785-8781
Email: cielus@igc.apc.org
Web site: http://www.igc.apc.org/ciel
Appendix II
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Fifth International Conference on Environmental Compliance and Enforcement
Commission on Environmental Cooperation
393, rue St Jacques Quest, Bureau 200
Montreal, Quebec
Canada H2Y1N9
Tel: (1-514) 350-4300
Fax: (1-514) 350-4314
Web site: http://www.cec.org
Earthjustice Legal Defense Fund
180 Montgomery Street, Suite 1725
San Francisco, CA 94104
Tel: (1-415) 627-6700
Fax: (1-415) 627-6749
Environmental Law Alliance Worldwide
(U.S. Office)
1877 Garden Ave.
Eugene, Oregon 97403
Tel: (1-541) 687-8454
Fax: (1-541) 687-0535
Email: elaw.usoffice@.igc.apc.org
Environmental Law Institute
1616 P Street, N.W., Suite 200
Washington, D.C. 20036
Tel: (1-202) 939-3800
Fax: (1-202) 939-3868
Email: eli@eli.org
Website: http://www.eli.org
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Good Neighbor Project
P.O. Box 79225
Waverly, Massachusetts 02179
Tel: (1-617) 489-3686
Fax: (1-617) 489-2482
Web site: http://www.enviroweb.org/gnp
Regional Environmental Center for Central and Eastern Europe
AdyEndreut9-ll
2000 Szentendre, Hungary
Tel: (36-26) 311-199
Fax: (36-26) 311-294
Email: rec-info(g)jec.org
Web site: http :'//www.rec.org
Working Group on Community Right-to-Know
218 D Street, S.E.
Washington, D.C. 20003
Tel: (1-202) 544-9586
Fax: (1-202) 546-2461
Web site: http://rtk.net
World Bank Inspection Panel
1818 H Street, N.W.
Washington, D.C. 20433
Tel: (1-202) 458-5200
Fax: (1-202) 522-0916
Appendix II
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Appendix III
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CONVENTION ON ACCESS TO INFORMATION
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ECE/CEP/43
CONVENTION ON ACCESS TO INFORMATION, PUBLIC
PARTICIPATION IN DECISION-MAKING AND ACCESS TO
JUSTICE IN ENVIRONMENTAL MATTERS
submitted by
the ECE Committee on Environmental Policy through
the Ad Hoc Preparatory Working Group of Senior Officials
UNITED NATIONS
ECONOMIC COMMISSION FOR EUROPE
Distr.
GENERAL
ECE/CEP/43
21 April 1998
ORIGINAL : ENGLISH
ECONOMIC COMMISSION FOR EUROPE
COMMITTEE ON ENVIRONMENTAL POLICY
Fourth. Ministerial Conference
"Environment for Europe",
Aarhus, Denmark, 23-25 June 1998
CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION
IN DECISION-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS *_/
The Parties to this Convention,
Recalling principle 1 of the Stockholm Declaration on the Human
Environment,
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Recalling also principle 10 of the Rio Declaration on Environment and
Development,
Recalling further General Assembly resolutions 37/7 of 28 October 1982 on
the World Charter for Nature and 45/94 of 14 December 1990 on the need to
ensure a healthy environment for the well-being of individuals,
Recalling the European Charter on Environment and Health adopted at the
First European Conference on Environment and Health of the World Health
Organization in Frankfurt-am-Main, Germany, on 8 December 1989,
*/ Final text endorsed by the Committee on Environmental Policy at its
Special session on 16-18 March 1998 for adoption at the Ministerial
Conference "Environment for Europe".
GE.98-30998
Affirming the need to protect, preserve and improve the state of the environment and
to ensure sustainable and environmentally sound development,
Recognizing that adequate protection of the environment is essential to human
well-being and the enjoyment of basic human rights, including the right to life
itself,
Recognizing also that every person has the right to live in an environment adequate
to his or her health and well-being, and the duty, both individually and in
association with others, to protect and improve the environment for the benefit of
present and future generations,
Considering that, to be able to assert this right and observe this duty, citizens
must have access to information, be entitled to participate in decision-making and
have access to justice in environmental matters, and acknowledging in this regard
that citizens may need assistance in order to exercise their rights,
Recognizing that, in the field of the environment, improved access to information
and public participation in decision-making enhance the quality and the
implementation of decisions, contribute to public awareness of environmental issues,
give the public the opportunity to express its concerns and enable public
authorities to take due account of such concerns,
Aiming thereby to further the accountability of and transparency in decision-making
and to strengthen public support for decisions on the environment,
Recognizing the desirability of transparency in all branches of government and
inviting legislative bodies to implement the principles of this Convention in their
proceedings,
Recognizing also that the public needs to be aware of the procedures for
participation in environmental decision-making, have free access to them and know
how to use them,
Recognizing further the importance of the respective roles that individual citizens,
non-governmental organizations and the private sector can play in environmental
protection,
Desiring to promote environmental education to further the understanding of the
environment and sustainable development and to encourage widespread public awareness
of, and participation in, decisions affecting the environment and sustainable
development,
Noting, in this context, the importance of making use of the media and of electronic
or other, future forms of communication,
Recognizing the importance of fully integrating environmental considerations in
governmental decision-making and the consequent need for public authorities to be in
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possession of accurate, comprehensive and up-to-date environmental information,
Acknowledging that public authorities hold environmental information in the public
interest,
Concerned that effective judicial mechanisms should be accessible to the public,
including organizations, so that its legitimate interests are protected and the law
is enforced,
Noting the importance of adequate product information being provided to consumers to
enable them to make informed environmental choices,
Recognizing the concern of the public about the deliberate release of genetically
modified organisms into the environment and the need for increased transparency and
greater public participation in decision-making in this field,
Convinced that the.implementation of this Convention will contribute to
strengthening democracy in the region of the United Nations .Economic Commission for
Europe (ECE),
Conscious of the role played in this respect by ECE and recalling, inter alia, the
ECE Guidelines on Access to Environmental Information and Public Participation in
Environmental Decision-making endorsed in the Ministerial Declaration adopted at the
Third Ministerial Conference "Environment for Europe" in Sofia, Bulgaria, on 25
October 1995,
Bearing in mind the relevant provisions in the Convention on Environmental Impact
Assessment in a Transboundary Context, done at Espoo, Finland, on 25 February 1991,
and the Convention on the Transboundary Effects of Industrial Accidents and the
Convention on the Protection and Use of Transboundary Watercourses and International
Lakes, both done at Helsinki on 17 March 1992, and other regional conventions,
Conscious that the adoption of this Convention will have contributed to the further
strengthening of the "Environment for Europe" process and to the results of the
Fourth Ministerial Conference in Aarhus, Denmark, in June 1998,
Have agreed as follows:
Article 1
OBJECTIVE
In order to contribute to the protection of the right of every person of present and
future generations to live in an environment adequate to his or her health and
well-being, each Party shall guarantee the rights of access to information, public
participation in decision-making, and access to justice in environmental matters in
accordance with the provisions of this Convention.
Article 2
DEFINITIONS
For the purposes of this Convention,
1. "Party" means, unless the text otherwise indicates, a Contracting Party to this
Convention;
2. "Public authority" means:
(a) Government at national, regional and other level;
(b) Natural or legal persons performing public administrative functions under
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national law, including specific duties, activities or services in relation to the
environment;
(c) Any other natural or legal persons having public responsibilities or functions,
or providing public services, in relation to the environment, under the control of a
body or person falling within subparagraphs (a) or (b) above;
(d) The institutions of any regional economic integration organization referred to
in article 17 which is a Party to this Convention.
This definition does not include bodies or institutions acting in a judicial or
legislative capacity;
3. "Environmental information" means any information in written, visual, aural,
electronic or any other material form on:
(a) The state of elements of the environment, such as air and atmosphere, water,
soil, land, landscape and natural'sites, biological diversity and its components,
including genetically modified organisms, and the interaction among these elements;
(b) Factors, such as substances, energy, noise and radiation, and activities_or
measures, including administrative measures, environmental agreements, policies,
legislation, plans and programmes, affecting or likely to affect the elements of the
environment within the scope of subparagraph (a) above, and cost-benefit and other
economic analyses and assumptions used in environmental decision-making;
(c) The state of human health and safety, conditions of human life, cultural sites
and built structures, inasmuch as they are or may be affected by the state of the
elements of the environment or, through these elements, by the factors, activities
or measures referred to in subparagraph (b) above;
4. "The public" means one or more natural or legal persons, and, in accordance with
national legislation or practice, their associations, organizations or groups;
5. "The public concerned" means the public affected or likely to be affected by, or
having an interest in, the environmental decision-making,;, for the purposes of this
definition, non-governmental organizations promoting environmental protection and
meeting any requirements under national law shall be deemed to have an interest.
Article 3
GENERAL PROVISIONS
1. Each Party shall take the"necessary legislative, regulatory and other measures,
including measures to achieve compatibility between the provisions implementing the
information, public participation and access-to-justice provisions in this
Convention, as well as proper enforcement measures, to establish and maintain a
clear, transparent and consistent framework to implement the provisions of this
Convention.
2. Each Party shall endeavour to ensure that officials and authorities assist and
provide guidance to the public in seeking access to information, in facilitating
participation in decision-making and in seeking access to justice in environmental
matters.
3. Each Party shall promote environmental education and environmental awareness
among the public, especially on how to obtain access to information, to participate
in decision-making and to obtain access to justice in environmental matters.
4. Each Party shall provide for appropriate recognition of and support to
associations, organizations or groups promoting environmental protection and ensure
that its national legal system is consistent with this obligation.
5. The provisions of this Convention shall not affect the right of a Party to
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maintain or introduce measures providing for broader access to information, more
extensive public participation in decision-making and wider access to justice in
environmental matters than required by this Convention.
6. This Convention shall not require any derogation from existing rights of access
to information, public participation in decision-making and access to justice in
environmental matters.
7. Each Party shall promote the application of the principles of this Convention in
international environmental decision-making processes and within the framework of
international organizations in matters relating to the environment.
8. Each Party shall ensure that persons exercising their rights in conformity with
the provisions of this Convention shall not be penalized, persecuted or harassed in
any way for their involvement. This provision shall not affect the powers of
national courts to award reasonable costs in .judicial proceedings.
9. Within the scope of the relevant provisions of this Convention, the public shall
have access to information, have the possibility to participate in decision-making
and have access to justice in environmental matters without discrimination as to
citizenship, nationality or domicile and, in the case of a legal person, without
discrimination as to where it has its registered seat or an effective centre of its
activities.
Article 4
ACCESS TO ENVIRONMENTAL INFOBMATION
1. Each Party shall ensure that, subject to the following paragraphs of this
article, public authorities, in response to a request for environmental information,
make such information available to the public, within the framework of national
legislation, including, where requested and subject to subparagraph (b) below,
copies of the actual documentation containing or comprising such information:
(a) Without an interest having to be stated;
(b) In the form requested unless:
(i) It is reasonable for
the public authority to
make it available in
another form, in which
case reasons shall be
given for making it
available in that form;
or
(ii) The information is
already publicly
available in another
form.
2. The environmental information referred .to in paragraph 1 above shall be made
available as soon as possible and at the latest within one month after the request
has been submitted, unless the volume and the complexity of the information justify
an extension of this period up to two months after the request. The applicant shall
be informed of any extension and of the reasons justifying it.
3. A request for environmental information may be refused if:
(a) The public authority to which the request is addressed does not hold the
environmental information requested;
{b} The request is manifestly unreasonable or formulated in too general a manner; or
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(c) The request concerns material in the course of completion or concerns internal
communications of public authorities where such an exemption is provided for in
national law or customary practice, taking into account the public interest served
by disclosure.
4. A request for environmental information may be refused if the disclosure would
adversely affect:
(a) The confidentiality of the proceedings of public authorities, where such
confidentiality is provided for under national law;
(b) International relations, national defence or public security;
(c) The course of justice, the ability of a person to receive a fair trial or the
ability of a public authority to conduct an enquiry of a criminal or disciplinary
nature;
(d) The confidentiality of commercial and industrial information, where such
confidentiality is protected by law in order to protect a legitimate economic
interest. Within this framework, information on emissions which is relevant for the
protection of the environment shall be disclosed;
(e) Intellectual property rights;
(f) The confidentiality of personal data and/or files relating to a natural person
where that person has not consented to the disclosure of the information to the
public, where such confidentiality is provided for in national law;
(g) The interests of a third party which has supplied the information requested
without that party being under or capable of being put under a legal obligation to
do so, and where that party does not consent to the release of the material; or
(h) The environment to which the information relates, such as
the
breeding sites of rare species.
The aforementioned grounds for refusal shall be interpreted in a restrictive way,
taking into account the public interest served by disclosure and taking into account
whether the information requested relates to emissions into the environment.
5. Where a public authority does not hold the environmental information requested,
this public authority shall, as promptly as possible, inform the applicant of the
public authority to which it believes it is possible to apply for the information
requested or transfer the request to that authority and inform the applicant
accordingly.
6. Each Party shall ensure that, if information exempted from disclosure under
paragraphs 3 (c) and 4 above can be separated out without prejudice to the
confidentiality of the information exempted, public authorities make available the
remainder of the environmental information that has been requested.
7. A refusal of a request shall be in writing if the request was in writing or the
applicant so requests. A refusal shall state the reasons for the refusal and give
information on access to the review procedure provided for in-accordance with
article 9. The refusal shall be made as soon as possible and at the latest within
one month, unless the complexity of the information
justifies an extension of this period up to two months after the request. The
applicant shall be informed of any extension and of the reasons justifying it.
8. Each Party may allow its public authorities to make a charge for supplying
information, but such charge shall not exceed a reasonable amount. Public
authorities intending to make such a charge for supplying information shall make
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available to applicants a schedule of charges which may be levied, indicating the
circumstances in which they may be levied or waived and when the supply of
information is conditional on the advance payment of such a charge.
Article 5
COLLECTION AND DISSEMINATION OF ENVIRONMENTAL INFORMATION
1. Each Party shall ensure that:
(a) Public authorities possess and update environmental information which is
relevant to their functions;
(b) Mandatory systems are established so that there is. an adequate flow of
information to public authorities about proposed and existing activities which may
significantly affect the environment;
(c) In the event of any imminent threat to human health or the environment, whether
caused by human activities or due to natural .causes, all information which could
enable the public to take measures to prevent or mitigate harm arising from the
threat and is held by a public authority is disseminated immediately and without
.delay to members of the public who may be affected.
2. Each Party shall ensure that, within the framework of national legislation, the
way in which public authorities make environmental information available to the
public is transparent and that environmental information is effectively accessible,
inter alia, by:
(a) Providing sufficient information to the public about the type and scope of
environmental information held by the relevant public authorities, the basic terms
and conditions under which such information is made available and accessible, and
the process by which it can be obtained;
(b) Establishing and maintaining practical arrangements, such as:
(i) Publicly
accessible
lists,
registers or
files;
(ii) Requiring
officials to
support the
public in
seeking access
to information
under -this
Convention;
and
(iii) The identification of points of contact; and
(c) Providing access to the environmental information contained in lists, registers
or files as referred to in subparagraph (b) (i) above free of charge.
3. Each Party shall ensure that environmental information progressively becomes
available in electronic databases which are easily accessible to the public through
public telecommunications networks. Information accessible in this form should
include:
(a) Reports on the state of the environment, as referred to in paragraph 4 below;
(b) Texts of legislation on or relating to the environment;
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(c) As appropriate, policies, plans and programmes on or relating to the
environment, and environmental agreements; and
(d) Other information, to the extent that the availability of such information in
this form would facilitate the application of national law implementing this
Convention,
provided that such information is already available in electronic form.
4. Each Party shall, at regular intervals not exceeding three or four years, publish
and disseminate a national report on the state of the environment, including
information on the quality of the environment and information on pressures on the
environment.
5. Each Party shall take measures within the framework of its legislation for the
purpose of disseminating, inter alia:
(a) Legislation and policy documents such as documents on strategies, policies,
programmes and action plans relating to the environment, and progress reports on
their implementation, prepared at various levels of government;
(b) International treaties, conventions and agreements on environmental issues; and
{c} Other significant international documents on environmental issues, as
appropriate.
6. Each Party shall encourage operators whose activities have a significant impact
on the environment to inform the public regularly of the environmental impact of
their activities and products, where appropriate within the framework of voluntary
eco-labelling or eco-auditing schemes or by other means.
7. Each Party shall:
(a) Publish the facts and analyses of facts which it considers relevant and
important in framing major environmental policy proposals;
(bj Publish, or otherwise make accessible, available explanatory material on its
dealings with the public in matters falling within the scope of this Convention; and
(c) Provide in an appropriate form information on the performance of public
functions or the provision of public services relating to the environment by
government at all levels.
8. Each Party shall develop mechanisms with a view to ensuring that sufficient
product information is made available to the public in a manner which enables
consumers to make informed environmental choices.
9. Each Party shall take steps to establish progressively, taking into account
international processes where appropriate, a coherent, nationwide system of
pollution inventories or registers on a structured, computerized and publicly
accessible database compiled through standardized reporting. Such a system may
include inputs, releases and transfers of a specified range of substances and
products, including water, energy and resource use, from a specified range of
activities to environmental media and to on-site and off-site treatment and disposal
sites.
10. Nothing in this article may prejudice the right of Parties to refuse to disclose
certain environmental information in accordance with article 4, paragraphs 3 and 4.
Article 6
PUBLIC PARTICIPATION IN DECISIONS ON SPECIFIC ACTIVITIES
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1. Each Party:
(a) Shall apply the provisions of this article with respect to decisions on whether
to permit proposed activities listed in annex I;
(b) Shall, in accordance with its national law, also apply the provisions of this
article to decisions on proposed activities not listed in annex I which may have a
significant effect on the environment. To this end, Parties shall determine whether
such a proposed activity is subject to these provisions; and
(c) May decide, on a case-by-case basis if so provided under national law, not to
apply the provisions of this article to proposed activities serving national defence
purposes, if that Party deems that such application would have an adverse effect on
these purposes.
2. The public concerned shall be informed, either by public notice or individually
as appropriate, early in an environmental decision-making procedure, and in an
adequate, timely and effective manner, inter alia, of:
(a) The proposed activity and the application on which a decision will be taken;
(b) The nature of possible decisions or the draft decision;
(c) The public authority responsible for making the decision;
(d) The envisaged procedure, including, as and when this information can be
provided:
(i) The commencement of the procedure;
(ii) The opportunities
for the public to
participate;
(iii) The time and venue of any envisaged
public hearing;
(iv) An indication of
the public authority
from which relevant
information can be
. obtained and where the
relevant information has
been deposited for
examination by the
public;
(v) An indication of the
relevant public
authority or any other
official body to which
comments or questions
can be submitted and of
the time schedule for
transmittal. of comments
or questions; and
(vi) An indication of
what environmental
information relevant to
the proposed activity is
available; and
(e) The fact that the activity is subject to a national or transboundary
environmental impact assessment procedure.
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3. The public participation procedures shall include reasonable time-frames for the
different phases, allowing sufficient time for informing the public in accordance
with paragraph 2 above and for the public to prepare and participate effectively
during the environmental decision-making.
4. Each Party shall provide for early public participation, when all options are
open and effective public participation can take place.
5. Each Party should, where appropriate, encourage prospective applicants to
identify the public concerned, to enter into discussions, and to provide information
regarding the objectives of their application before applying for a permit.
6. Each Party shall require the competent public authorities to give the public
concerned access for examination, upon request where so required under national law,
free of charge and as soon as it becomes available, to all information relevant to
the decision-making referred to in this article that is available at the time of the
public participation procedure, without prejudice to the right of Parties to refuse
to disclose certain information in accordance with article 4, paragraphs 3 and 4.
The relevant information shall include at least, and without prejudice to the
provisions of article 4:
(a) A description of the site and the physical and technical characteristics of the
proposed activity, including an estimate of the expected residues and emissions;
(b) A description of the significant effects of the proposed activity on the
environment;
(C) A description of the measures envisaged to prevent and/or reduce the effects,
including emissions;
(d) A non-technical summary of the above;
(e) An outline of the main alternatives studied by the applicant; and
(f) In accordance with national legislation, the main reports and advice issued to
the public authority at the time when the public concerned shall be informed in
accordance with paragraph 2 above.
7. Procedures for public participation shall allow the public to submit, in writing
or, as appropriate, at a public hearing or inquiry with the applicant, any comments,
information, analyses or opinions that it considers relevant to the proposed
activity.
8. Each Party shall ensure that in the decision due account is taken of the outcome
of the public participation.
9. Each Party shall ensure that, when the decision has been taken by the public
authority, the public is promptly informed of the decision in accordance with the
appropriate procedures. Each Party shall make accessible to the public the text of
the decision along with the reasons and considerations on which the decision is
based.
10. Each Party shall ensure that, when a public authority reconsiders or updates the
operating conditions for an activity referred to in
paragraph 1, the provisions of paragraphs 2 to 9 of this article are applied mutatis
mutandis, and where appropriate.
11. Each Party shall, within the framework of its national law, apply, to
the extent feasible and appropriate, provisions of this article to decisions on
whether to permit the deliberate release of genetically modified organisms into the
environment.
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Article 7
PUBLIC PARTICIPATION CONCERNING PLANS, PROGRAMMES AND POLICIES
RELATING TO THE ENVIRONMENT
Each Party shall make appropriate practical and/or other provisions for the public
to participate during the preparation of plans and programmes relating to the
environment, within a transparent and fair framework, having provided the necessary
information to the public. Within this framework, article 6, paragraphs 3, 4 and 8,
shall be applied. The public which may participate shall.be identified by the
relevant public authority, taking into account the objectives of this Convention. To
the extent appropriate, each Party shall endeavour to provide opportunities for
public participation in the preparation of policies relating to the environment.
Article 8
PUBLIC PARTICIPATION DURING THE PREPARATION OF EXECUTIVE REGULATIONS AND/OR
GENERALLY APPLICABLE LEGALLY BINDING NORMATIVE INSTRUMENTS
Each Party shall strive to promote effective public participation at an appropriate
stage, and while options are still open, during the preparation by public
authorities of executive regulations and other generally applicable legally binding
rules that may have a significant effect on the environment. To this end, the
following steps should be taken:
(a) Time-frames sufficient for effective participation should be fixed;
(b) Draft rules should be published or otherwise made publicly available; and
(c) The public should be given the opportunity to comment, directly or through
representative consultative bodies.
The result of the public participation shall be taken into account as far as
possible.
Article 9
ACCESS TO JUSTICE
1. Each Party shall, within the framework of its national legislation, ensure that
any person who considers that his or her request for information under article 4 has
been ignored, wrongfully refused, whether in part or in full, inadequately answered,
or otherwise not dealt with in accordance with the provisions of that article, has
access to a review procedure before a court of law or another independent and
impartial body established by law.
In the circumstances where a Party provides for such a review by a court of law, it
shall ensure that such a person also has access to an expeditious procedure
established by law that is free of charge or inexpensive for reconsideration by a
public authority or review by an independent and impartial body other than a court
of law.
Final decisions under this paragraph 1 shall be binding on the public authority
holding the information. Reasons shall be stated in writing, at least where access
to information is refused under this paragraph.
2. Each Party shall, within the framework of its national legislation, ensure that
members of the public concerned
(a) Having a sufficient interest
or, alternatively,
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(b) Maintaining impairment of a right, where the administrative procedural law of a
Party requires this as a precondition,
have access to a review procedure before a court of law and/or another independent
and impartial body established by law, to challenge the substantive and procedural
legality of any decision, act or omission subject to the provisions of article 6
and, where so provided for under national law and without prejudice to paragraph 3
below, of other relevant provisions of this Convention.
What constitutes a sufficient interest and impairment of a right shall be determined
in accordance with the requirements of national law and consistently with the
objective of giving the public concerned wide access to justice withinthe scope of
this Convention. To this end, the interest of any non-governmental organization
meeting the requirements' referred to in
article 2, paragraph 5, shall be deemed sufficient for the purpose of subparagraph
(a) above. Such organizations shall- also be deemed to have rights capable of being
impaired for the purpose of subparagraph (b) above.
The provisions of this paragraph 2 shall not exclude the possibility of a
preliminary review procedure before an administrative authority and shall not affect
the requirement of exhaustion of administrative review procedures prior to recourse
to judicial review procedures, where such a requirement exists under national law.
3. In addition and without prejudice to the review procedures referred to in
paragraphs 1 and 2 above, each Party shall ensure that, where they meet the
criteria, if any, laid down in its national law, members of the public have access
to administrative or judicial procedures to challenge acts and omissions by private
persons and public authorities which contravene provisions of its national law
relating to the environment.
4. In addition and without prejudice to paragraph 1 above, the procedures referred
to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies,
including injunctive relief as appropriate, and be fair,
equitable, timely and not prohibitively expensive. Decisions under this article
shall be given or recorded in writing. Decisions of courts, and whenever possible of
other bodies, shall be publicly accessible.
5. In order to further the effectiveness of the provisions of this article, each
Party shall ensure that information is provided to the public on access to
administrative and judicial review procedures and shall consider the establishment
of appropriate assistance mechanisms to remove or reduce financial and other
barriers to access to justice.
Article 10
MEETING OF THE PARTIES
1-. The first meeting of the Parties shall be convened no later than one year after
the date of the entry into force of this Convention. Thereafter, an-ordinary meeting
of the Parties shall be held at least once every two years, unless otherwise decided
by the Parties, or at the written request of any Party, provided that, within six
months of the request being communicated to all Parties by the Executive Secretary
of the Economic Commission for Europe, the said request is supported by at least one
third of the Parties.
2. At their meetings, the Parties shall keep under continuous review the
implementation of this Convention oh the basis of regular reporting by the Parties,
and, with this purpose in mind, shall:
(a) Review the policies for and legal and methodological approaches to access to
information, public participation in decision-making and access to justice in
environmental matters, with a view to further improving them;
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(b) Exchange information regarding experience gained in -concluding and implementing
bilateral and multilateral agreements or other arrangements having relevance to the
purposes of this Convention and to which one or more of the Parties are a party;
(c) Seek, where appropriate, the services of relevant ECE bodies and other competent
international bodies and specific committees in all aspects pertinent to the
achievement of the purposes of this Convention;
(d) Establish any subsidiary bodies as they deem necessary;
(e) Prepare, where appropriate, protocols to this Convention;
(f) Consider and adopt proposals for amendments to this Convention in accordance
with the provisions of article 14;
(g) Consider and undertake any additional action that may be required for the
achievement of the purposes of this Convention;
(h) At their first meeting, consider and by consensus adopt rules of procedure for
their meetings and the meetings of subsidiary bodies;
(i) At their first meeting, review their experience in implementing the provisions
of article 5, paragraph 9, and consider what steps are necessary to develop further
the system referred to in that paragraph, taking into account international
processes and developments, including the elaboration of an appropriate instrument
concerning pollution release and transfer registers or inventories which could be
annexed to this Convention.
3. The 'Meeting of the Parties may, as necessary,
arrangements on a consensus basis. .
consider establishing financial
4. The United Nations, its specialized agencies and the International Atomic Energy
Agency, as well as any State or regional economic integration organization entitled
under article 17 to sign this Convention but which is not a Party to this
Convention, and any intergovernmental organization qualified in the fields to which
this Convention relates, shall be entitled to participate as observers in the
meetings of the Parties.
5. Any non-governmental organization, qualified in the fields to which this
Convention relates, which has informed the Executive Secretary of the Economic
Commission for Europe of its wish to be represented at a meeting.of the Parties
shall be entitled to participate as an observer unless at least one third of the
Parties present in the meeting raise objections.
6. For the purposes of paragraphs 4 and 5 above, the rules of procedure referred to
in paragraph 2 (h) above shall provide for practical arrangements for the admittance
procedure and other relevant terms.
Article 11
RIGHT TO VOTE
1. Except as provided for in paragraph 2 below, each Party to this Convention shall
have one vote.
2. Regional economic integration organizations, in matters within their competence,
shall exercise their right to vote with a number of votes equal to the number of
their member States which are Parties to this Convention. Such organizations shall
not exercise their right to vote if their member States exercise theirs, and vice
versa.
Article 12
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SECRETARIAT
The Executive Secretary of the Economic Commission for Europe shall carry out the
following secretariat functions:
(a) The convening and preparing of meetings of the Parties;
(b) The transmission to the Parties of reports and other information received in
accordance with the provisions of this Convention; and
(c) Such other functions as may be determined by the Parties.
Articla 13
ANNEXES
The annexes to this Convention shall constitute an integral part thereof.
Article 14
AMENDMENTS TO THE CONVENTION
1. Any Party may propose amendments to this Convention.
2. The text of any proposed amendment to this Convention shall be submitted in
writing to the Executive Secretary of the Economic Commission for Europe, who shall
communicate it to all Parties at least ninety days before the meeting of the Parties
at which it is proposed for adoption.
3. The Parties shall make every effort to reach agreement on any proposed amendment
to this Convention by consensus. If all efforts at consensus have been exhausted,
and no agreement reached, the amendment shall as a last resort be adopted by a
three-fourths majority vote of the Parties present and voting at the meeting.
4. Amendments to this Convention adopted in accordance with paragraph 3 above shall
be communicated by the Depositary to all Parties for ratification, approval or
acceptance. Amendments to this Convention other than those to an annex shall enter
into force for Parties having ratified, approved or accepted them on the ninetieth
day after the receipt by the Depositary of notification of their ratification,
approval or acceptance by at least three fourths of these Parties. Thereafter they
shall enter into force for any other Party on the ninetieth day after that Party
deposits its instrument of ratification, approval or acceptance of the amendments.
5. Any Party that is unable to approve an amendment to an annex to this Convention
shall so notify the Depositary in writing within twelve months from the date of the
communication of the adoption. The Depositary shall without delay notify all Parties
of any such notification.received. A Party may at any time substitute an acceptance
for its previous notification and, upon deposit of an instrument of acceptance with
the Depositary, the amendments to such an annex shall become effective for that
Party.
6. On the expiry of twelve months from the date of its communication by the
Depositary as provided for in paragraph 4 above an amendment to an annex shall
become effective for those Parties which have not submitted a notification to the
Depositary in accordance with the provisions of paragraph 5 above, provided that not
more than one third of the Parties have submitted such a notification.
7. For the purposes of this article, "Parties present and voting" means Parties
present and casting an affirmative or negative vote.
Article 15
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REVIEW OF COMPLIANCE
The Meeting of the Parties shall establish, on a consensus basis, optional
arrangements of a non-confrontational, non-judicial and consultative nature for .
reviewing compliance with the provisions of this Convention. These arrangements
shall allow for appropriate public involvement and may include the option of
considering communications from members of the public on matters related to this
Convention.
Article 16
SETTLEMENT OF DISPUTES
1. If a dispute arises between two or more Parties about the interpretation or
application of this Convention, they shall seek a solution by negotiation or by any
other means of dispute settlement acceptable to the parties to the dispute.
2. When signing, ratifying, accepting, approving or acceding to this Convention, or
at any time thereafter, a Party may declare in writing to the Depositary that, for a
dispute not resolved in accordance with paragraph 1 above, it accepts one or both o.f
the following means of dispute settlement as compulsory in relation to any Party
accepting the same obligation:
(a) Submission of the dispute to the International Court of Justice;
(b) Arbitration in accordance with the procedure set out in annex II.
3. If the parties to the dispute have accepted both means of dispute settlement
referred to in paragraph 2 above, the dispute may be submitted only to the
International Court of Justice, unless the parties agree otherwise.
Article 17
SIGNATURE
This Convention shall be open for signature at Aarhus (Denmark) on 25 June 1998, and
thereafter at United Nations Headquarters in New York until
21 December 1998, by States members of the Economic Commission for Europe as well as
States having, consultative status with the Economic Commission for Europe pursuant
to paragraphs 8 and 11 of Economic and Social Council resolution 36 (IV) of 28 March
1947, and by regional economic integration organizations constituted by sovereign
States members of the Economic Commission for Europe to which their member States
have transferred competence over matters governed by this Convention, including the
competence to enter into treaties in respect of these matters.
Article 18
DEPOSITARY
The Secretary-General of 'the United Nations shall act as the Depositary of this
Convention.
Article 19
RATIFICATION, ACCEPTANCE, APPROVAL AND ACCESSION
1. This Convention shall be subject to ratification, acceptance or approval by
signatory States and regional economic integration organizations.
2. This Convention shall be open for accession as from 22 December 1998 by the
States and regional economic integration organizations referred to in article 17.
3. Any other State, not referred to in paragraph 2 above, that is a Member of the
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United Nations may accede to the Convention upon approval by the Meeting of the
Parties.
4. Any organization referred to in article 17 which becomes a Party to this
Convention without any of its member States being a Party shall be bound by all the
obligations under this Convention. If one or more of such an organization's member
States is a Party to this Convention, the organization and its member States shall
decide on their respective responsibilities for the performance of their obligations
under this Convention. In such cases, the organization and the member States shall
not be entitled to exercise rights under this Convention concurrently.
5. In their instruments of ratification, acceptance, approval1 or accession, the
regional economic integration organizations referred to in article 17 shall declare
the extent of their competence with respect to the matters
governed by this Convention. These organizations shall also inform the Depositary of
any substantial modification to the extent of their competence.
Article 20
ENTRY INTO FORCE
1. This Convention shall enter into force on the ninetieth day after the date of
deposit of the sixteenth instrument of ratification, acceptance, approval or
accession.
2. For the purposes of paragraph 1 above, any instrument deposited by a regional
economic integration organization shall not be counted as additional to those
deposited by States members of such an organization.
3. For each State or organization referred to in article 17 which ratifies, accepts
or approves this Convention or accedes thereto after the deposit of the sixteenth
instrument of ratification, acceptance, approval or accession, the Convention shall
enter into force on the ninetieth day after the date of deposit by such State or
organization of its instrument of ratification, acceptance, approval or accession.
Act-Lola 21
WITHDRAWAL
At any time after three years from the date on which this Convention has come into
force with respect to a Party, that Party may withdraw from the Convention by giving
written notification to the Depositary. Any such withdrawal shall take effect on the
ninetieth day after the date of its receipt by the Depositary.
Article 22
AUTHENTIC TEXTS
The original of this Convention, of which the English, French and Russian texts are
equally authentic, shall be deposited with the Secretary-General of the United
Nations.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed this
Convention.
DONE at Aarhus (Denmark), this twenty-fifth day of June, one thousand nine hundred
and ninety-eight.
Annex I
LIST OF ACTIVITIES REFERRED TO IN ARTICLE 6, PARAGRAPH 1 (a)
1. Energy sector:
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- Mineral oil and gas refineries;
- Installations for gasification and liquefaction;
- Thermal power stations and other
combustion installations with a heat input
of 50 megawatts (MW) or more;
- Coke ovens;
- Nuclear power stations and other nuclear
reactors including the dismantling or
decommissioning of such power stations or
reactors I/ (except research installations
for the production and conversion of
fissionable and fertile materials whose
maximum power does not exceed 1 kW
continuous thermal load);
- Installations for the reprocessing of irradiated nuclear fuel;
- Installations designed:
- For the production or enrichment of nuclear fuel;
- For the processing of
irradiated nuclear fuel
or high-level
radioactive waste;
- For the final disposal of irradiated nuclear fuel;
- Solely for the final disposal of radioactive waste;
- Solely for the storage
(planned for more than
10 years) of irradiated
nuclear fuels or
radioactive waste in a
different site than the
production site.
2. Production and processing of metals:
- Metal ore (including sulphide ore) roasting or sintering
installations;
- Installations for the production of
pig-iron or steel (primary or secondary
fusion) including continuous casting, with a
capacity exceeding 2.5 tons per hour;
- Installations for the processing of ferrous metals:
(i) Hot-rolling mills
with a capacity
exceeding 20 tons of
crude steel per hour;
(ii) Smitheries with
hammers the energy of
which exceeds 50
kilojoules per hammer,
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- Installations:
where the calorific
power used exceeds 20
MW;
(iii) Application of
protective fused metal
coats with an input
exceeding 2 tons of
crude steel per hour;
- Ferrous metal foundries with a production
capacity exceeding 20 tons per day;
(i) For the production
of non-ferrous crude
metals from ore,
concentrates or
secondary raw materials
by metallurgical,
chemical or electrolytic
processes;
(ii) For the smelting,
including the alloying,
of non-ferrous metals,
including recovered
products (refining,
foundry casting, etc.),
with a melting capacity
exceeding 4 tons per day
for lead and cadmium or
20 tons per day for all
other metals;
- Installations for surface treatment of
metals and plastic materials using an
electrolytic or chemical process where the
volume of the treatment vats exceeds 30 m3.
3. Mineral industry:
- Installations for the production of cement
clinker in rotary kilns with a production
capacity exceeding 500 tons per day or lime
in rotary kilns with a production capacity
exceeding 50 tons per day or in other
furnaces with a production capacity
exceeding 50 tons per day;
- Installations for the production of
asbestos and the manufacture of
asbestos-based products;
- Installations for the manufacture of glass
including glass fibre with a melting
capacity exceeding 20 tons per day;
- Installations for melting mineral
substances including the production of
mineral fibres with a melting capacity
exceeding 20 tons per day;
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- Installations for the manufacture of
ceramic products by firing, in-particular
roofing tiles, bricks, refractory bricks,
tiles, stoneware or porcelain, with a
production capacity exceeding 75 tons per
day, and/or with a kiln capacity exceeding 4
m3 and with a setting density per kiln
exceeding 300 kg/m3.
4. Chemical industry: Production within the meaning of the categories of activities
contained in this paragraph means the production on an industrial scale by chemical
processing of substances or groups of substances listed in subparagraphs (a) to (g):
(a) Chemical installations for the production of basic organic chemicals, such as:
(i) Simple
hydrocarbons
(linear or
cyclic,
saturated or
unsaturate'd,
aliphatic or
aromatic);
(ii)
Oxygen-containing
hydrocarbons
such as
alcohols,
aldehydes,
ketones,
carboxylic
acids, esters,
acetates,
ethers,
peroxides,
epoxy resins;
(iii)
Sulphurous
hydrocarbons;
(iv)
Nitrogenous
hydrocarbons
such as
amines,
amides',
nitrous
compounds,
nitro
compounds or
nitrate
compounds,
nitriles,
cyanates,
isocyanates;
(v)
Phosphorus-containing
hydrocarbons;
(vi) Halogenic
hydrocarbons;
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(vii)
Organometallic
compounds;
(viii) Basic
plastic
materials
(polymers,
synthetic
fibres and
cellulose-based
fibres);
(ix) Synthetic
rubbers;
(x) Dyes and
pigments;
(xi)
Surface-active
agents and
surfactants;
(bj Chemical installations for the production of basic inorganic chemicals, such as:
(i) Gases, such as
ammonia, chlorine or
hydrogen chloride,
fluorine or hydrogen
fluoride, carbon oxides,
sulphur compounds,
nitrogen oxides,
hydrogen, sulphur
dioxide, carbonyl
chloride;
(ii) Acids, such as
chromic acid,
hydrofluoric acid,
phosphoric acid, nitric
acid, hydrochloric acid,
sulphuric acid, oleum,
sulphurous acids;
(iii) Bases, such as
ammonium hydroxide,
potassium hydroxide,
sodium hydroxide;
(iv) Salts, such as
ammonium chloride,
potassium chlorate,
potassium carbonate,
sodium carbonate,
perborate, silver
nitrate;
(v) Non-metals, metal
oxides or other
inorganic compounds such
as calcium carbide,
silicon, silicon
carbide;
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(c) Chemical installations for the production of phosphorous-, nitrogen- or
potassium-based fertilizers (simple or compound fertilizers);
(d) Chemical installations for the production of basic plant health products and of
biocides;
(e) Installations using a chemical or biological process for the production of basic
pharmaceutical products;
(f) Chemical installations for the production of explosives;
(g) Chemical installations in which chemical or biological processing is used for
the production of protein feed additives, ferments and other protein substances.
5. Waste management:
- Installations for the incineration,
recovery, chemical treatment or landfill of
hazardous waste;
- Installations for the incineration of
municipal waste with a capacity exceeding 3
tons per hour;
- Installations for the disposal of
non-hazardous waste with a capacity
exceeding 50 tons per day;
- Landfills receiving more than 10 tons per
day or with a total capacity exceeding 25
000 tons, excluding landfills of inert
waste.
6. Waste-water treatment plants with a capacity exceeding 150 000 population
equivalent.
7. Industrial plants for the:
(a) Production of pulp from timber or similar fibrous materials;
(b) Production of paper and board with a production capacity exceeding 20 tons per
day.
8. (a) Construction of lines for long-distance railway traffic and of airports 2/
with a basic runway length of 2 100 m or more;
(b) Construction of motorways and express roads; 3_/
(c) Construction of a new road of four or more lanes, or realignment and/or widening
of an existing road of two lanes or less so as to provide four or more lanes, where
such new road, or realigned and/or widened section of road, would be 10 km or more
in a continuous length.
9. (a) Inland waterways and ports for inland-waterway traffic which permit the
passage of vessels of over 1 350 tons;
(b) Trading ports, piers for loading and unloading connected to land and outside
ports (excluding ferry piers) which can take vessels of over 1 350 tons.
10. Groundwater abstraction or artificial groundwater recharge schemes where the
annual volume of water abstracted or recharged is equivalent to or exceeds 10
million cubic metres.
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11. (a) Works for the transfer of water resources between river basins where this
transfer aims at preventing possible shortages of water and where the amount of
water transferred exceeds 100 million cubic metres/year;
{b} In all other cases, works for the transfer of water resources between river
basins where the multiannual average flow of the basin of abstraction exceeds 2 000
million cubic metres/year and where the amount of water transferred exceeds 5% of
this flow.
In both cases transfers of piped drinking water are excluded.
12. Extraction of petroleum and natural gas for commercial purposes where the amount
extracted exceeds 500 tons/day in the case of petroleum and 500 000 cubic metres/day
in the case of gas.
13. Dams and other installations designed for the holding back or permanent storage
of water/ where a new or additional amount of water held back or stored exceeds 10
million cubic metres.
14. Pipelines for the transport of gas, oil or chemicals with a diameter of more
than 800 mm and a length of more than 40 km.
15. Installations for the intensive rearing of poultry or pigs with more than:
(a) 40 000 places for poultry;
(b) 2 000 places for production pigs (over 30 kg); or
(c) 750 places for sows.
16. Quarries and opencast mining where the surface of the site exceeds 25 hectares,
or peat extraction, where the surface of the site exceeds 150 hectares.
17. Construction of overhead electrical power lines with a voltage of 220 kV or more
and a length of more than 15 km.
18. Installations for the storage of petroleum, petrochemical, or chemical products
with a capacity of 200 000 tons or more.
19, Other activities:
- Plants for the pretreatment (operations
such as washing, bleaching, mercerization)
or dyeing of fibres or textiles 'where- the
treatment capacity exceeds 10 tons per day;
- Plants for the tanning of hides and skins
where the treatment capacity exceeds 12 tons
of finished products per day;
- (a) Slaughterhouses
with a carcass
production capacity
greater than 50 tons per
day;
(b) Treatment and
processing intended for
the production of food
products from:
(i)
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Animal
raw
materials
(other
than
milk)
with,
a
finished
product
production
capacity
greater
than
75
tons
per
day;
(ii)
Vegetable
raw
material's
with
a
finished
product
production
capacity
greater
than
300
tons
per
day
(average
value
on a
quarterly
basis);
(c) Treatment and
processing of milk, the
quantity of milk
received being greater
than 200 tons per day
(average value on an
annual basis);
- Installations for the disposal or
recycling of animal carcasses and animal
waste with a treatment capacity exceeding 10
tons per day;
- Installations for the surface treatment of
substances, objects or products using
organic solvents, in particular for
dressing, printing, coating, degreasing,
waterproofing, sizing, -painting, cleaning or
impregnating, with a consumption capacity of
more than 150 kg per hour or more than 200
tons per year;
- Installations for the production of carbon
(hard-burnt coal) or electrographite by
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means of incineration or graphitization.
20. Any activity not covered by paragraphs 1-19 above where public participation is
provided for under an environmental impact assessment procedure in accordance with
national legislation.
21. The provision of article 6, paragraph 1 (a) of this Convention, does not apply
to any of the above projects undertaken exclusively or mainly for research,
development and testing of new methods or products for less than two years unless
they would be likely to cause a significant adverse effect on environment or health.
22. Any change to or extension of activities, where such a change or extension in
itself meets the criteria/thresholds set out in this annex, shall be subject to
article 6, paragraph 1 fa) of this Convention. Any other change or extension of
activities shall be subject to article 6, paragraph 1 (b) of this Convention.
Notes
I/ Nuclear power stations and other nuclear reactors cease to be such an
installation when all nuclear fuel and other radioactively contaminated elements
have been removed permanently from the installation site.
2/ For the purposes of this Convention, "airport" means an airport which complies
with the definition in the 1944 Chicago Convention setting up the International
Civil Aviation Organization (Annex 14) .
^/ For the purposes of this Convention, "express road" means a road which complies
with the definition in the European Agreement on Main International Traffic Arteries
of 15 November 1975.
Annex II
ARBITRATION
1. In the event of a dispute being submitted for arbitration pursuant to article 16,
paragraph 2, of this Convention, a party or parties shall notify the secretariat of
the subject matter of arbitration and indicate, in particular, the articles of this
Convention whose interpretation or application is at issue. The secretariat shall
forward the information received to all Parties to this Convention.
2. The arbitral tribunal shall consist of three members. Both the claimant party or
parties and the other party or parties to the dispute shall appoint an arbitrator,
and the two arbitrators so appointed shall designate by common agreement the third
arbitrator, who shall be the president of the arbitral tribunal. The latter shall
not be a national of one of the parties to the dispute, nor have his or her usual
place of residence in the territory of one of these parties, nor be employed by any
of them, nor have dealt with the case in any other capacity.
3. If the president of the arbitral tribunal has not been designated within two
months of the appointment of the second arbitrator, the Executive Secretary of the
Economic Commission for Europe shall, at the request of either party to the dispute,
designate the president within a further two-month period.
4. If one of the parties to the dispute does not appoint an arbitrator within two
months of the receipt of the request, the other party may so inform the Executive
Secretary of the Economic Commission for Europe, who shall designate the president
of the arbitral tribunal within a further two-month period. Upon designation, the
president of the arbitral tribunal shall request the party which has not appointed
an arbitrator to do so within two months. If it fails to do so within that period,
the president shall so inform the Executive Secretary of the Economic Commission for
Europe, who shall make this appointment within a further two-month period.
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5. The arbitral tribunal shall render its decision in accordance with international
law and the provisions of this Convention.
6. Any arbitral tribunal constituted under the provisions set out in this annex
shall draw up its own rules of procedure.
7. The decisions of the arbitral tribunal, both on procedure and on substance, shall
be taken by majority vote of its members.
8. The tribunal may take all appropriate measures to establish the facts.
9. The parties to the dispute shall facilitate the work of the arbitral tribunal
and, in particular, using all means at their disposal, shall:
(a) Provide it with' all relevant documents, facilities and information;
(b) Enable it, where necessary, to call witnesses or experts and receive their
evidence.
10. The parties and the arbitrators shall protect the confidentiality of any
information that they receive in confidence during the proceedings of the arbitral
tribunal. .
11. The arbitral tribunal may, at the reque.st of one of the parties, recommend
interim measures of protection.
12. If one of the parties to the dispute does not appear before the arbitral
tribunal or fails to defend its case, the other party may request the tribunal to
continue the proceedings and to render its final decision. Absence of a party or
failure of a party to .defend its case shall not constitute a bar to the proceedings.
13. The arbitral tribunal may hear and determine counter-claims arising directly out
of the subject matter of the dispute.
14. Unless the arbitral tribunal determines otherwise because of the particular
circumstances of the case, the expenses of the tribunal, including the remuneration
of its members, shall be borne by the parties to the dispute in equal shares. The
tribunal shall keep a record of all its expenses, and shall furnish a final
statement thereof to the parties.
15. Any Party to this Convention which has an interest of a legal nature in the
subject matter of the dispute, and which may be affected by a decision in the case,
may intervene in the proceedings with the consent of the tribunal.
16. The arbitral tribunal shall render its award within five months of the date on
which it is established, unless it finds it necessary to extend the time limit for a
period which should not exceed five months.
17. The award of the arbitral tribunal shall be accompanied by a statement of
reasons. It shall be final and binding upon all parties to the dispute. The award
will be transmitted by the arbitral tribunal to the parties to the dispute and to
the secretariat. The secretariat will forward the information received to all
Parties to this Convention.
18. Any dispute which may arise between the parties cpncerning the interpretation or
execution of the award may be submitted by either party to the arbitral tribunal
which made the award or, if the latter cannot be seized thereof, to another tribunal
constituted for this purpose in the same manner as the first.
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Appendix IV
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42 U.S.C. 111023 EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
by the Governor on or before July 1,1988, and annually thereafter on
July 1 and shall contain data reflecting releases during the preceding
calendar year.
(b) Covered owners and operator* of facilities
(1) In general
(A) The requirements of this section shall apply to owners and
operators of facilities that have 10 or more full-time employees
and that are in Standard Industrial Classification Codes 20
through 39 (as in effect on July 1,1985) and that manufactured,
processed, or otherwise used a toxic chemical listed under sub-
section (c) of this section in excess of the quantity of mat toxic
chemical established under subsection (f) of this section during
the calendar year for which a release form is required under this
section.
(B) The Administrator may add or delete Standard Industrial
Classification Codes for purposes of subparagraph (A), but only
to the extent necessary to provide that each Standard Industrial
Code to wfiich this section applies is relevant to the purposes of
this section.
(Q For purposes of mis section
(0 The term "manufacture" means to produce, prepare,
import, or compound a toxic chemical.
(ii) The term "process" means the preparation of a toxic
chemical, after its manufacture, for distribution in com-
merce
(I) in the same form or physical state as, or in a different
form or physical state from, that in which it was received by
the person so preparing such chemical, or
(IT) as part of an article containing the toxic chemical.
(2) Discretionary application to additional facilities
The Administrator, on his own motion or at the request of a
Governor of a State (with regard to facilities located in that State),
may apply the requirements of this section to the owners and
operators of any particular facility mat manufactures, processes, or
otherwise uses a toxic chemical listed under subsection (c) of this
section if the Administrator determines that such action is warranted
on the basis of toxicity of the toxic chemical, proximity to other
facilities that release the toxic chemical or to population centers, the
history of releases of such chemical at such facility, or such other
factors as the Administrator deems appropriate.
(c) Toxic chemicals covered
The toxic chemicals subject to the requirements of this section are
those chemicals on the list in Committee Print Number 99-169 of the
Senate Committee on Environment and Public Works, titled "Toxic
Chemicals Subject to Section 313 of the Emergency Planning and
Community Right-To-Know Act of 1986" [42 U.S.C. 11023] (includ-
ing any revised version of the hat as may be made pursuant to
subsection (d) or (e) of mis section).
(d) Revision* by Administrator
(1) In general
The Administrator may by rale add or delete a chemical from the
list described in subsection (c) of this section at any time.
(2) Additions
A chemical may be added if the Administrator determines, in his
judgment, that there is sufficient evidence to establish any one of
the following:
(A) The chemical is known to cause or can reasonably be
anticipated to cause significant advene acute human health ef-
fects at concentration levels that are reasonably likely to exist
beyond facility site boundaries as a result of continuous, or
frequently recurring, releases.
(B) The chemical is known to cause or can reasonably be .
anticipated to cause in humans
(i) cancer or teratogenic effects, or
(ii) serious or irreversible
(I) reproductive dysfunctions,
(II) neurological disorders,
(HI) heritable genetic mutations, or
(IV) other chronic health effects.
(Q The chemical is known to cause or can reasonably be
anticipated to cause, because of
(i) its toxicity,
EPCRA|313
(ii) its toxicity and persistence in the environment, or
(iii) its toxicity and tendency to bioaccumulate in the envi-
,; ronment,
a significant adverse effect on the environment of sufficient
seriousness, in the judgment of the Administrator, to warrant
reporting under this section. The number of chemicals included
on me list described in subsection (c) of this section on the basis
of the preceding sentence may constitute in the aggregate no more
than 25 percent of the total number of chemicals on the list
A determination under this paragraph shall be based on generally
accepted scientific principles or laboratory tests, or appropriately
designed and conducted epidemiological or other population stud-
ies, available to the Administrator.
(3) Deletions
A chemical may be deleted if the Administrator determines there
is not sufficient evidence to establish any of the criteria described
in paragraph (2).
(4) Effective date
Any revision made on or after January 1 and before December 1
of any calendar year shall take effect beginning with the next
calendar year. Any revision made on or after December 1 of any
calendar year and before January 1 of the next calender year shall
take effect beginning with the calendar year following such next
calendar year.
(e) Petitions
(1) In general
Any person may petition the Administrator to add or delete a
chemical from the list described in subsection (c) of this section on
the basis of the criteria in subparagraph (A) or (B) of subsection
(d)(2) of this section. Within 180 days after receipt of a petition, the
Administrator shall take one of the following actions;
(A) Initiate a rulemaking to add or delete the chemical to the
list, in accordance with subsection (d)(2) or (d)(3) of mis section.
(B) Publish an explanation of why the petition is denied.
(2) Governor petitions
A State Governor may petition the Administrator to add or delete
a chemical from the list described in subsection (c) of this section
on the basis of the criteria in subparagraph (A), (B), or (Q of
subsection (d)(2) of mis section, m the case of such a petition from
a State Governor to delete a chemical, the petition shall be treated
in the same manner as a petition received under paragraph (1) to
delete a chemical. In the case of such a petition from a State
Governor to add a chemical, the chemical will be added to the list
within 180 days after receipt of the petition, unless the Administra-
tor
(A) initiates a rulemaking to add the chemical to the list, in
accordance with subsection (d)(2) of this section, or
(B) publishes an explanation of why the Administrator be-
lieves the petition does not meet the requirements of subsection
(d)(2) of this section for adding a chemical to the list
(f) Threshold for reporting
(1) Toxk chemical threshold amount
The threshold amounts for purposes of reporting toxic chemicals
under this section are as follows:
(A) With respect to a toxic chemical used at a facility, 10,000
pounds of the toxic chemical per year.
(B) With respect to a toxic chemical manufactured or proc-
essed at a facility
(i) For the toxic chemical release form required to be sub-
mitted under this section on or before July 1, 1988, 75,000
pounds of the toxic chemical per year.
(ii) For the form required to be submitted on or before July
1,1989,50,000 pounds of the toxic chemical per year.
(iii) For the form required to be submitted on or before July
1, 1990, and for each form thereafter, 25,000 pounds of the
toxic chemical per year.
(2) Revisions
The Administrator may establish a threshold amount for a toxic
chemical different from the amount established by paragraph (1).
Such revised threshold shall obtain reporting on a substantial ma-
jority of total releases of the chemical at all facilities subject to the
requirements of this section. The amounts established under this
335
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42 U.S.C. {11023
EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT
carried out by the National Academy of Sciences using
balance information'collected by the Administrator under para-
graph (3). The Administrator shall submit to Congress a report on
such study no later than 5 years after October 17,1986.
(2) Purposes
The purposes of the study are as follows:
(A) To assess the value of mass balance analysis in determin-
ing the acctiracy of information on toxic chemical releases.
(B) To assess the value of obtaining mass balance information,
or portions thereof, to determine the waste reduction efficiency
of different facilities, or categories of facilities, including the
effectiveness of toxic chemical regulations promulgated under
laws other than this chapter.
(Q To assess the utility of such information for evaluating
toxic chemical management practices at facilities, or categories
of facilities, covered by this section.
D To determine the imlications of mas bace information
infor-
collection on a national scale similar to the i.,^T ^.^-L- »._-
mation collection carried out by the Administrator under para-
graph (3), including implications of the use of such collection as
part of a national annual quantity toxic chemical release program.
(3) Information collection
(A) The Administrator shall acquire available mass balance
information from States which currently conduct (or during the
5 years after October 17,1986 initiate) a mass balance-oriented
annual quantity toxic chemical release program. If information
from such States provides an inadequate representation of indus-
try classes and categories to carry out the purposes of the study,
EPCRAI313
the Administrator also may acquire mass balance information
necessary for the study from a representative number of facilities
in other States.
(B) Any information acquired under this section shall be
available to the public, except that upon a showing satisfactory
to the Administrator by any person that the information (or a
particular part thereof) to which the Administrator or any officer,
employee, or representative has access under mis section if made
public would divulge information entitled to protection Trxfrr
section 1905 of tide 18, such information or part shall be consid-
ered confidential in accordance with the purposes of mat section,
except that such information or part may be direlotfd to other
officers, employees, or authorized representatives of the United
States concerned with carrying out this section.
(Q The Administrator may promulgate regulations prescrib-
ing procedures for collecting mass balance information under this
paragraph.
(D) For purposes of collecting mass balance information under
subparagraph (A), the Administrator may require the submission
of information by a State or facility.
(4) Mas* balance definition
For purposes of this subsection, the term "mass balance" means
an accumulation of the annual quantities of chemicals transported
to a facility, produced at a facility, consumed at a facility, used at a
faculty, accumulated at a facility, released from a facility, and
transported from a faculty as a waste or as a commercial product or
byproduct or component of a commercial product or byproduct
(Pub. L. 99-499, title ffl, §313, Oct. 17,198fi, 100 SUL 1741.)
337
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Appendix V
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i
I
I
1
FWPCA§505
§ 1365. fFWPCA §505]
CYUzon cults
(a) Authorization; jurisdiction
Except as provided in subsection (b) of this section and section
1319(g)(6) of this title, any citizen may commence a civil action on
his own behalf
(1) against any person (including (i) the United States, and (ii)
any other governmental instrumentality or agency to the extent
permitted by the eleventh amendment to the Constitution) who is
alleged to be in violation of (A) an effluent standard or limitation
under this chapter or (B) an order issued by the Administrator or a
State with respect to such a standard or limitation, or
(2) against the Administrator where mere is alleged a failure of
the Administrator to perform any act or doty under this chapter
which is not discretionary with the Administrator. Hie district
courts shall have jurisdiction, without regard to the amount hi
controversy or the citizenship of the parties, to enforce such an
effluent standard or limitation, or such an order, or to order the
Administrator to perform such act or duty, as the case may be, and
to apply any appropriate civil penalties under section 1319(d) of
this title.
(b) Notice
No action may be commenced
(1) under subsection (a)(l) of this section
(A) prior to sixty days after the plaintiff has given notice of
the alleged violation (i) to the Administrator, (ii) to the State in
which the alleged violation occurs, and (iii) to any alleged
violator of the standard, limitation, or order, or
(B) if the Administrator or State has commenced and is
diligently prosecuting a civil or criminal action in a court of the
United States, or a State to require compliance with the standard,
limitation, or order, but in any such action hi a court of the United
States any citizen may intervene as a matter of right
(2) under subsection (a)(2) of this section prior to sixty days after
the plaintiff has given notice of such action to the Administrator,
except that such action may be brought immediately after such noti-
fication in the case of an action under this section respecting a violation
of sections 1316 and 1317(a) of this tide. Notice under this subsection
shall be given hi such manner as the Administrator shall prescribe by
regulation.
(c) Venue; intervention by Administrator; United States
interests protected
(1) Any action respecting a violation by a discharge source of an
effluent standard or limitation or an order respecting such standard
or limitation may be brought under this section only in the judicial
district in which such source is located.
(2) In such action under this section, the Administrator, if not a
, party, may intervene as a matter of right
(3) Protection of interests of united states.Whenever any action
is brought under this section in a court of the United States, the
plaintiff shall serve a copy of the complaint on the Attorney General
and the Administrator. No consent judgment shall be entered hi an
action hi which the United States is not a party prior to 45 days
following the receipt of a copy of the proposed consent judgment
by the Attorney General and the Administrator.
(d) Litigation costs
The court, hi issuing any final order in any action brought pursuant
to this section, may award costs of litigation (including reasonable
attorney and expert witness fees) to any prevailing or substantially
prevailing party, whenever the court determines such award is appro-
priate. The court may, if a temporary restraining order or preliminary
injunction is sought, require the filing of a bond or equivalent security
hi accordance with the Federal Rules of Civil Procedure.
(e) Statutory or common law rights not restricted
Nothing hi this section shall restrict any right which any person (or
class of persons) may have under any statute or common law to seek
enforcement of any effluent standard or limitation or to seek any other
relief (including relief against the Administrator or a State agency).
(0 Effluent standard or limitation
For purposes of this section, the term "effluent standard or limita-
18. So in original.
ENVIRONMENTAL LAW DESKBOOK
33 U.S.C. 11365
lion under this chapter" means (1) effective July 1,1973, an unlawful
act under subsection (a) of section 13II of this title, (2) an effluent
limitation or other limitation under section 1311 or 1312 of this title;
(3) standard of performance under section 1316 of this title; (4)
prohibition, effluent standard or pretreatment standards under section
1317 of this title; (5) certification under section 1341 of this title; (6)
a permit or condition thereof issued under section 1342 of this title,
which is hi effect under this chapter (including a requirement applica-
ble by reason of section 1323 of this title); or (7) a regulation under
section 1345(d) of this title,." ^^
(8) "Citizen" defined
For the purposes of this section the term "citizen" means a person
or persons having an interest which is or may be adversely affected.
(b) Crvfl action by State Governors
A Governor of a State may commence a civil action under subsection
(a) of mis section, without regard to the limitations of subsection (b) of
this section, against the Administrator where mere is alleged a failure of
the Admmistrator to enforce an effluent standard or limitation under mis
chapter the violation of which is occurring in another State and b causing
an adverse effect on the public health or welfare m his State, or is causing
a violation of any water quality requirement in lik a»f»
(June 30,1948, ch. 758, tide V, 5505, as added Oct. 18,1972, Pub. L. 92-500
52,86 Stat. 888, and amended Feb. 4,1987, Pub. L. 100-4, title m, 5314(c)
title IV, 5406(dX2), title V, 5504,505(c), 101 StaL 49.73,75,76.)
KcttraettbTczt
The Federal Riila of Civil Procedure, referred to in sub.ec. (d). are let out in the
Appendix to Tule 28, Judicfey and Judicial Procedure.
542
FEDERAL WATER POLLUTION CONTROL ACT
-------
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Appendix VI
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SanfordJ.
Director
I>-0, Box 7922S
Wavorly,
Internet;
sanle\vis@igc,apo.org
RTKNET: lew*?
Advisory Boarf*
Rick Abraham
Tuscans Omted
Nicholas Ash&ri, 3JO., PhJB.
Massachusetts: Institute oF
Technology
JSmBenn
Federation for Industrial Retention
ami Renewal
ScoB 0frnste»p:
Center forMeignborlKKSd Technology
Banry Commoner
Center fofthe Biologyxjf Natutat
Systems
liika Dfierr
Citizens &t a Better Eftvironroent,
Minnesota
Amy Domini
BonwwSociaJ Index
KenGiiscr
Toxics Use Reduction Institute;
, Uoivsrsity-of Massachusetts, towed
CJutrfes- Grifiilh
Ecology Center of Ann Arbor
J0DER
Food and Allied Service Trades:
TieitMiBar-
RicBard Mffler
Oil, Chemical ani Atomic Workers
fiaa Nixpn
People Concerned about
Methyifeocyanatt
<}ohn O'Copnor
Jobs and Environment Campaign
EBssa Parker
Envfroranema! taw JnstrtBM
Rand Wilson
Jobs Wifli Justice
Richard Yoangstront
Jndustriaf Ifegiemst, tUElocaJ 70t
* Partial Ust
The Good Neighbor Project
For Sustainable Industries
October 1,1998
MODEL CONTRACT FOR SUSTAINABLE INDUSTRY
The following Model Contract for Sustainable Industry is based on
proposed and existing good neighbor agreements, union collective
bargaining agreements, and state and local legislation.
Its language is intended to be suitable for application to any of those
contexts, as well as for conditioning or amending federal, state or local
licenses, permits or charters of corporations.
*** NOTE: The terms of this Model Contract are intended to provide
models and examples for addressing a range of concerns relating to
sustainable industry and corporate accountability. It is not our intention,
may not be practical in many situations, to attempt to address all of these
issues in a single contract or statute. Instead, we recommend that readers
pick and choose from among the agreement's provisions those elements
-which address the concerns most relevant to their local communities and
industries.***
-------
MODEL CONTRACT FOR SUSTAINABLE INDUSTRY
This is a legally binding Agreement entered into on the
_day of_
_, 199 _ between
[company]Inc., an [state of incorporation] corporation with a [manufacturing] facility located at
[address], "[citizens' group]", which is an association of neighbors of the [community] [company name]
facility, and [union, if participating].
A.
C.
D.
BACKGROUND
[citizens' group] is an association of citizens residing in [community] [and employees of company
name] who are concerned with the environment and economy of [community name].
B. The [company] plant in [community] is engaged in the production of products. The
t * J J £ *- -* J 1? f 1
[company] [community] plant is a provider of jobs in the community.
[union] [local number #] is the legally authorized bargaining agent of
plant.
workers at the
The parties have diverse concerns, but meet on common ground with regard to one core principle:
all have a substantial stake in maintaining sustainable industry in [community name]. We use the
word "sustainable" to mean conducting business in a manner which meets the needs of today while
protecting the ability of ourselves and others, including future generations, to meet the needs of
tomorrow. In order for an industry to be sustainable, continuous investment is necessary in the
maintenance and refinement of equipment, facilities, in the development of new products and
production processes, and in increasing the skills of its workforce. Issues encompassed in
sustainability include toxic chemical usage, energy and materials consumption, environmental
pollution, and the ability of the firm and its labor force to compete in the marketplace.
In order to engage in a genuine partnership with the local community and demonstrate its intent to
maintain a sustainable operation, the corporation agrees herein to voluntarily constrain its ability to
withdraw assets from the community. The corporation has done this by agreeing that the
community and workforce shall have a right of first refusal in the event the corporation decides to
cease operations in [community name]. Further, the corporation has agreed that in the event such a
decision to close is effectuated, fair compensation shall be paid to the community and workforces
for losses engendered.
Members of [citizens' group] who reside near to the [community] [company]facility have obtained
information through the Federal Community Right to Know law and other sources which have
Appendix A-2
-------
indicated that a number of toxic chemicals are utilized at the [company] facility, and that some of
these chemicals have been released to the environment [citizens' group] has requested additional
information from [company] concerning the operations, activities and chemicals used at the
[community] [company]plant. The purpose of requesting this information is to address the
concerns of some members of [citizens' group] regarding the possible hazards to the environment
and to their health and safety from chemical releases at the plant.
G. Various laws require or encourage [company name] to conduct studies which are relevant to the
sustainability of its operations. These laws include [list may include: OSHA process safety
regulations, state toxics use reduction law, state energy efficiency law, securities and exchange
commission regulations on publicly held corporations, etc.] In order to provide the corporation the
benefit of workforce and community expertise, and provide these local stakeholders with an
opportunity to protect their interests, the parties agree to a process for worker and community
participation in the development of such studies, and a mechanism to allow access to the studies
themselves in draft and final forms.
H. To further increase their understanding of the [company]facility, [citizens' group] has requested
permission to have members tour the facility accompanied by a qualified professional of their
choice, in order to better understand the activities at the facility and the technical matters of
concern to [citizens' group].
I. Citizens group has further requested that the company undertake certain additional studies and
audits.
J. [company] and [citizens' group] expect that, with a continuing spirit of neighborliness and mutual
respect, they will be able to discuss all issues and agree upon them without resort to formal
procedures or the assistance of third parties. However, in order to provide legal protection of all
parties' interests, this Agreement sets forth with specificity the parties' rights and duties and
provides a dispute resolution procedure to be used in case a dispute arises.
NOW, THEREFORE, considering the above background and the commitments and conditions contained
in this agreement, the parties hereby agree to be bound by this contract as follows:
Appendix A-3
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INFORMATION ACCESS
1 .PUBLIC INFORMATION [Company name] agrees to place and maintain the following documents on
reserve at the public library nearest the plant, except to the extent that it constitutes proprietary trade
secret information as defined in this agreement: all information filed under the Emergency Planning and
Community Right To Know Act, all environmental and safety audits and studies, toxics use reduction
plans, OSHA process hazard analyses, plant safety manuals, hazard communication program, chemical
accident hazard analyses including risk analyses with plume maps, documentation regarding subsidies
received from federal, state and local governments, corporate annual report and SEC filings, and a list of
persons employed at the [community name] facility, their positions, and their residential address.
2.COMMITTEE AND CONSULTANT ACCESS TO INFORMATION, FACILITY AND PERSONNEL
The committee and consultants shall have access to all information, facility areas and plant personnel
relevant to environmental and safety audits and studies, toxics use reduction plans, and economic
sustainability studies, including, but not limited to, access to the existing plant facilities and workers
(including confidential interviews) and access to plans, documents, studies, plant safety manual, hazard
communication program, pre-start-up process, hazard analysis, risk analysis with plume maps,
hydrocarbon storage tank kill radius studies, SARA 312 inventories, building codes, fault tree analysis,
failure analysis, process flowcharts, process hazard review and all materials and facilities used in the
operation of the facility, including, but not limited to vessels and lines, and information specified in this
agreement regarding economic sustainability assessments.
SUSTAINABLE INDUSTRY COMMITTEE
3.ESTABLISHMENT OF COMMITTEE
a.rNONUNION PLANT] There shall be established a Sustainable Industry Committee
[alternatively, Health, Safety and Environment Committee] (hereinafter referred to as "the committee ")
composed of twelve voting members. Four members will be selected by [citizens group], four members
will be selected by [company]'s management. In addition, employees shall select four members through
a secret ballot election conducted every two years. All employees shall be eligible to vote and shall be
given the opportunity to vote during their normal working hours at a location or locations at or
contiguous to the facility for which the committee membership is being decided. Nominees receiving the
most votes shall be elected.
[UNIONIZED PLANT] There is hereby formed a Sustainable Industry Committee [alternatively,
Health, Safety and Environment Committee](hereinafter referred to as "the committee ") composed of
Appendix A-4
-------
twelve voting members. Four members will be selected by [citizens group], four by the [union local] and
four by [company].
b. In the event of a vacant position on the committee., a replacement shall be selected within 30
days, pursuant to the selection procedures set forth in this section, [except that in facilities where there is
no union, the elected employee hazard prevention advocates shall select an employee to fill the vacant
employee-elected slot in the interim until the next scheduled employee election. ]
c. RIGHTS AND RESPONSIBILITIES OF COMMITTEE
The members of the committee shall have the following rights and responsibilities:
i. Develop an overall assessment of the sustainability of the [company name] facility with
the assistance of appropriate experts.
ii. Supervise and receive reports from auditors and inspectors, hired to aid in independent
review of the sustainability of the [company name] facility, including reviewing and
commenting on all draft studies and/or audits prepared by consultants.
iii. Conduct site visits and plant inspections in association with briefings and meetings with
the contractors undertaking various audits and studies.
iv. Serve as a channel for communication between the parties and the community.
v.Develop a joint management-workforce-community workplan to implement
recommendations for improving the sustainability of the plant as needs are identified.
vi.Convene at least once per month to discuss any pending matters.
INSPECTION AGREEMENT
1. PREPARATION FOR INSPECTION. In order to help prepare the consultant and committee for an
inspection, [company] shall provide, at least twenty days prior to the planned date of the inspection, the
following:
a. Documents. Documents as listed in Attachment A of this agreement.
Appendix A-5
-------
b. Scope of proprietary information. A written document specifying any locations and
activities within the facility which are proprietary in nature.
2. OBSERVANCE OF SAFETY RULES DURING INSPECTION. While in the [company]facility,
Consultant and committee shall abide by all rules and regulations of the facility concerning work and
safety as well as all governmental laws and regulations pertaining to occupational safety and health.
3.PHOTOGRAPHS/VIDEOS/SAMPLING. During the inspection participants may take photographs,
videos and samples of soil, water, air, materials in use or storage, or emissions.
4. FOLLOWUP ON INSPECTION. [company]agrees to meet with members of [citizens' group] on a
date subsequent to the inspection to discuss any concerns raised.
EXTERNAL AUDITS OF HEALTH, SAFETY AND ENVIRONMENTAL CONDITIONS
SAFETY AUDIT
1. It is specifically agreed that an annual safety audit will be undertaken with regard to the plant. This
safety audit will be performed by a technically competent, nationally recognized audit team. The cost of
this audit will be borne by [company] from an escrow fund created pursuant to this agreement.
2. The scope of work to be undertaken by this audit team shall include a review of existing plans and
procedures regarding safety as well as safety of existing equipment and practices. The safety audit
should ensure that the facility has an Accident Prevention Plan as described in section of this
agreement.
3.To the extent that similar safety assessments are currently, or will in the future be, required by OSHA
or EPA regulations or by state law, this safety audit may be structured to meet those federal requirements
as well as the terms of this agreement. The committee and safety auditor shall have access to any
information utilized in compliance with such regulations, and with interim and final products of such
studies. In the audit required in this agreement, the Committee shall have the ability to expand upon the
scope of such studies, including but not limited to expanding on the substances or equipment studied or
requiring concrete actions to be taken to improve upon plant safety; expediting the initiation and
completion of such studies; and integrating such studies with others necessary to ensure plant
sustainability.
Appendix A-6
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4. The safety auditor and the Committee shall have full access to. all information, facility areas and
personnel, deemed relevant to a safety audit. Access for the committee shall be provided at a time, place
and manner determined in a meeting of the committee. The audit shall follow nationally recognized
auditing protocols. The committee shall have a right to review all information supplied to or by the
safety audit team.
5. If a dispute arises as to whether certain documents requested by the committee are proprietary
information then [company] may trigger the arbitration provisions of this agreement for a determination.
In any event, [Company name] shall be required to provide such information to the committee.
6. The detailed scope of work for the audit shall be determined by the committee. If the safety audit
study finds deficiencies in the plant, recommendations for changes and/or modifications necessary to
address these deficiencies should be included in the audit report.
7. The committee shall be provided with a copy of the audit and recommendations to address
deficiencies, if any.
8. The committee shall review the audit study and any recommendations and determine what action
and/or modifications should be undertaken by [company], if any. The committee shall make written
final recommendations which will be binding upon [company]. Either party may enforce the
recommendations in district court.
9. ACCIDENT PREVENTION PLAN The safety audit shall ensure that the facility has an Accident
Prevention Plan which includes
a. a hazard assessment to assess the potential effect of an accidental release, including downwind
effects, potential exposures to affected population and a release history for the last five years and
shall include a worst case accidental release.
b. a program with definite timelines for actions to be taken to prevent accidental releases of the
regulated substances including safety precautions, maintenance, monitoring and employee training
measures; and
c. a response program setting forth specific actions to be taken in response to an accidental release
such as informing and evacuating the public and addressing emergency health care.
Appendix A-7
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ENVIRONMENTAL AUDIT
1. The parties hereby agree to conduct an annual environmental audit of [company]'s facilities. As new
facilities are constructed they shall become subject to this environmental audit provision. The scope of
this environmental audit shall encompass workplace emissions, air emissions, wastewater discharge,
solid waste management and toxics use reductions.
2. This environmental audit will be performed by a technically competent, nationally recognized audit
team or teams, with separate reports being generated for air emissions, wastewater, solid waste
management and toxics use reductions. The cost of this environmental audit will be borne by the
[company] from an escrow fund created pursuant to this agreement and administered by the committee.
3. The air, wastewater and solid waste audits will be oriented to determine compliance with existing
permits and regulations applicable to the facility. The toxic use reduction audit should set forth a
comprehensive audit and reduction plan for toxic chemicals used and waste products generated by the
plant. The audit should include a recommended policy regarding reduction/limitation of toxics, a
statement of the scope and objective of the audit, a projection of future use and waste generation per unit
of product, economic costs of the use of various toxics, identification and evaluation of toxic use
reduction alternatives, recommendations and proposed schedules for toxic use reduction. The study of
reduction alternatives should be broadly commissioned to include process and production modifications
equipment modifications and replacement as well as operating and maintenance and recycling and reuse
alternatives.
4.WORKPLACE AND ENVIRONMENTAL MONITORING. Consultants paid for by the company and
supervised by the committee will conduct regular testing of the worksite, employees in the worksite and
stack emissions to the outside. These tests shall be done at least once per quarter.
5.ODORS. Odors shall not be emitted from the [company name] facility. In the event that odors are
emitted and written notice is given of the detection of odors by three or more neighbors, [Company
name] shall immediately cease production on the problematic line and not resume production until:
1. the cause has been identified;
2. corrective actions have been identified and implemented.
Violation of these terms shall trigger the penalty provisions of this agreement. [Source: Neighborhood
Agreement between Quinsigamond Village Health Awareness Group and Lewcott, Inc., Worcester,
Massachusetts.]
6.ENERGY CONSERVATION AND EFFICIENCY
Appendix A-8
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a.The Committee shall commission a consultant to study energy consumption in the [Company
name] plant. Such study shall be submitted to the committee for its review and recommendations.
The study shall consider, at a minimum, each of the following topics:
i.Total energy consumption in the facility.
ii.Energy conservation alternatives.
iii.Measures for reducing the creation of greenhouse gases resulting from products and
production.
iv.Renewable energy alternatives
v.On-site energy generation alternatives.
vi.Company policies and practices with regard to energy usage and efficiency in the design
of products and production processes, and in the acquisition of new equipment.
b, The Committee shall develop an energy plan for the company, including quantifiable goals and
timelines regarding each of the above-noted factors.
7.STOPPING WORK UNSAFE TO ENVIRONMENT OR TO WORKERS. The [Union Co-chairperson
of the Committee or other workforce designeejwill have the right to shut down any operation in plant
which he/she believes presents an imminent danger to the health and safety of an employee or presents a
danger to the outside environment. [Based on collective bargaining agreement of UAW and Harvard
Industries, October 1991]
8.REMEDIATION, RELOCATION, COMPENSATION. [Insert clauses as necessary regarding cleanup
of past spills or dumping, relocation of residents or facilities, compensation for past injuries,
establishment of health clinics or other in-kind compensation for injuries]
Appendix A-9
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TOXICS USE REDUCTION
(Provisions based on settlement in Environmental Action v. IR Industries, and Massachusetts Toxics Use
Reduction Act)
1. The term "toxics use reduction" means any change in a practice, process, activity, machinery or
equipment:
a. that reduces or eliminates the use or production of a hazardous substance; (the term "hazardous
substance" as used throughout shall mean any hazardous substance as defined pursuant to 42
U.S.C. 9601(14).)
b. that results in a reduction of any hazardous substance used or produced in proportion to the
plant's production capacity; or
c. The term "toxics use reduction" includes equipment or technology modifications, installation of
new machinery of equipment (for example, without limiting the generality of this provision, the
installation of manufacturing equipment which employs mechanical or electronic processes rather
than chemical processes), changes in processes or procedures, reformulation or redesign of
products, substitution of materials or components, and improvements in housekeeping, training,
maintenance or inventory control.
d. The term "toxics use reduction" does not include:
(1) any practice which alters the physical, chemical or biological characteristics or the
volume of a hazardous substance through a process or activity which itself is not integral to
the production of a product or the providing of a service;
(2) the use of a hazardous substance or by-product as a hazardous secondary material or as
a product.
2. Within 45 days following the entry of this agreement [company] shall retain an independent
environmental consultant who shall have appropriate training and experience to analyze methods of
toxics use reduction at the plant, and shall so advise [citizens group]. Such consultant shall be selected
from a list to be provided to [company] by the [consultant reviewer]. In the event that [company] are
unable to select a suitable consultant from such list, they may select a consultant of their choosing,
provided that the name and qualifications of such consultant shall be provided to [consultant reviewer]
who shall have ten (10) days from the date of receipt to object to such consultant. Failure to object
within the time specified shall constitute approval. Objection shall be for reasonable grounds, related to
Appendix A-10
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the consultant's ability to fulfill the requirements of this Agreement, and shall be stated in writing. Upon
receiving such objection, [company] may submit the name of another consultant as provided above, or
may resolve any outstanding objections by agreement with the [consultant reviewer.][company] shall pay
[consultant reviewer] $ 150.00 per hour for time spent in reviewing [company]' proposed consultants, up
to a maximum of $500.00. The consultant shall prepare a report for [company], with a copy to the
committee and public library by 1, 199_, which report shall contain the following:
a. An identification of the amount of each hazardous substance used, generated, released, and/or
transferred off-site by the plant in calendar year 199_.
b. An identification of all technically available methods for toxics use reduction for each such
hazardous substance at the plant.
c. Analysis and discussion of the costs, savings and overall feasibility of each of the identified
methods for toxics use reduction at the plant
d. A list of selected methods for toxics use reduction at the plant based on achievement of
maximum feasible toxics use reduction.
e. A time schedule by which those methods will be implemented.
3.The work of the consultant shall be conducted in consultation with the committee, and the report of the
consultant shall be present to the committee in draft form prior to its completion.
4. Within one year of this agreement, at least one of [company] management personnel with primary or
secondary responsibility for environmental compliance shall complete a course or training program of
sufficient scope and detail to enable them to understand and implement, opportunities for pollution
prevention and toxics use reduction.
5. Without altering the deadlines set forth in A and B of this section, [company] agree to expend at least
$ 000 within two years of this agreement on the following:
(1) approval and employment of a consultant as specified above;
(2) preparation of the consultant's report;
(3) training of personnel in pollution prevention and toxics use reduction;
(4)implementation of the toxics use reduction measures selected in the plan, and other measures
identified pursuant to paragraph 3 below.
6. In the event that implementation of any recommendation in the report or other measure satisfying the
requirements of this Agreement is determined to be technically feasible but must be delayed because of
economic factors, and [company] have determined to implement such measure in accordance with this
Agreement, [company] shall submit a timely request for an extension to the [citizens group]. To be
timely, such request shall be filed at least three months prior to the deadline set forth in the toxics use
reduction plan. The request shall include an explanation of the reasons for the requested extension and a
Appendix A-11
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proposed schedule for implementation; any such schedule shall include an appropriate revision of the
reporting schedule set forth below. If [citizens group] agrees that the implementation schedule should be
extended and that the proposed schedule is reasonable, the parties shall execute an amended agreement.
The burden shall be on [company] to demonstrate that an extension is justified by economic factors.
7. Where feasible, [company] shall achieve by three years from this agreement, the reduction in use by
weight, of 90% of the hazardous substances used by the plant in 199_. Expenditures after the date of
signing of this agreement which achieve toxics use reduction shall be credited even though they do not,
standing alone, result in a 90% reduction of a particular hazardous substance.
8. [company]'s chief operating officer shall provide a quarterly progress report and certified statement to
the Court, with a copy to [citizens group], beginning on April 1, 199_, and ending on April 1, 199_, or
30 days after completion of the toxics use reduction program described in this agreement if that shall
occur sooner, describing [company]' progress in implementing the recommendations of the consultant's
report, a schedule for future activities, the eligibility of expenditures for credit under this Agreement, and
a full accounting of funds expended to date (including material costs and fees paid to contractors). The
final report shall contain a statement by the independent consultant in which he evaluates the degree to
which [company] implemented the recommendations in his initial report.
9.PENALTY OFFSET
a. [company] shall pay an agreed sum of $ for their failure to file timely reports
under Section 313 of EPCRA, subject to the terms and provisions in this Article, [company] shall
receive a credit against the aforesaid sum of up to $ for undertaking and implementing a
program as set forth below in sections of this agreement.
If [company] does not expend $ on a toxics use reduction program described in this Agreement
on or before and no extension has been applied for as of that date, [company] shall pay to the U.S.
Treasury the difference between $ and the amount actually expended by that date, plus
interest, by .
b. [company] shall not receive credit for any expenditures made prior to or
otherwise required by virtue of any federal, state or local statute, regulation or ordinance or required by
any other court order or enforceable order of an administrative agency, unless the expenditure was made
prior to the date of enactment, promulgation or entry of such requirement. This limitation shall not apply
to expenditures incurred by [company] in order to meet [company]' existing commitment to reduce
chemical usage under the U.S. Environmental Protection Agency's Industrial Toxics Project.
10.COMMITTEE ROLE. The committee will oversee efforts to control, reduce, and to the extent
feasible, ultimately eliminate the use of [chemical name], and to carry forward other toxics use reduction
objectives.
Appendix A-l 2
-------
11 .COMMITMENT TO ELIMINATE [CHEMICAL NAME]. [Company name] is committed to
eliminating the use [production] of [chemical name] and establishes the following schedule for its
elimination:
ECONOMIC SUSTAINABILITY CLAUSES
1.PRIORITIZING CAPITAL INVESTMENT TOWARD SUSTAINABLE TECHNOLOGY.
The Committee will seek to ensure that resources are utilized, including company and union personnel,
consultants, and public resources, to achieve a sustainable plant and workforce. The number one priority
and set aside of money for capital improvements of the firm shall be to make investments needed for
sustainability. If necessary, the committee will investigate the potential for securing additional capital
resources through state, federal or local agencies. The Company shall report at the periodic committee
meeting what actions were taken and what sums were expended in the prior calendar month to
accomplish sustainability. [Based on collective bargaining agreement of ACTWU and Sheldahl, Inc.]
2. ADVANCE NOTICE OF PLANT CLOSINGS AND CHANGES IN TECHNOLOGY. In the event
that circumstances require the company to close the plant with the resulting cessation of the
manufacturing operation, the company agrees to give the other parties to this agreement at least 18
months advance notice. [Based on collective bargaining agreement in BCTW and Brown and Williamson
Tobacco Corp.]
3.The [company name] will provide the other parties to this agreement with prior notification of
technological change and will involve the parties in the planning process, [company] recognizes the
value of work performed by its employees and will make an effort to prevent any undesirable
consequences to the workforce or community ... [company] agrees to meet with the other parties to this
agreement to discuss any labor or community issues regarding these proposed changes. Such issues may
include:.
1) Planning the introduction of the new equipment;
2) The introduction of new job classifications and any changes in current job classification or
descriptions;
3) Training requirements and availability;
4) Health, safety or environmental considerations;
5) Machine monitoring and/or machine pacing.
No wages, benefits or fringes shall be reduced by the introduction of new technology to current job
classification(s). [Based on Collective Bargaining Agreement between City of Boston and City
employees]
Appendix A-13
-------
4.DISCLOSURE OF CAPITAL INVESTMENT PLANS. By or before
the Company will
deliver to the parties a copy of the company's plans for capital investment for the following five years.
By or before January 31, pf each year, commencing January , the company will give to the
committee a report showing by item and amount, the capital investment expenditures and also,
separately, expenditures for maintenance and report, which have been made in each plant during the
preceding calendar year. [Based on UFCW and Armour Co]
5.AGREEMENT TO COOPERATE IN ASSESSMENT OF PLANT'S ECONOMIC CONDITION.
[GENERAL LANGUAGE] [Company name] will cooperate in studies supervised by the committee
regarding the economic status and future of the plant. [Company name] shall provide a consultant to the
committee with access to the last five years of financial records, access to marketing and financial
managers for interviews, access to the company's customer list, and any other information requested by
the consultant in the course of his or her assessment.
[FOR PREFEASIBILITY STUDY COOPERATION WHERE A PLANT CLOSING IS
ANTICIPATED:] Since [the plant appears to be in jeopardy of] [OR] [company name has announced
that the plant will close], [company name] will cooperate in a prefeasibility study regarding a possible
change of ownership. [Company name] shall provide the prefeasibility study consultant, when one is
designated by the committee, with access to the last five years of financial records, access to marketing
and financial managers for interviews, access to the company's customer list, and any other information
requested by the prefeasibility consultant in the course of his or her assessment.
6.COMPANY FUNDED STUDY OF IMPACTS OF TECHNOLOGICAL CHANGE The Committee is
authorized to utilize the Fund [paid by the company] for the purpose of studying the problems resulting
from the modernization program for community and workforce, and making recommendations for their
solution. [Based on UFCW and Armour Co.]
7.RETRAINING IN THE EVENT OF TECHNOLOGICAL CHANGE Workers shall be trained for new
and altered jobs within the plant created by technological change. Where jobs are eliminated by
technological change, training shall be provided for other jobs in the company or in the wider
community; workers shall be paid at their previously established rates during the retraining.
a. When as a result of technological change new and/or revised job classifications are
introduced in the bargaining unit, the company shall insure that employees will be given the
opportunity to acquire the knowledge and skills necessary to qualify for these new and /or revised
job classifications.
Appendix A-14
-------
b. In the event retraining for the new and/or revised job classifications is not feasible, the
Company will provide the necessary training for job classifications not related to the new
technologies. This will include training for jobs in other departments in the plant, and if necessary,
for jobs at other company plants.
c. If a job with the Company is not feasible, the company shall then initiate discussion with
appropriate representatives of state and federal unemployment and job placement agencies with
regard to job openings and/or skill shortages in the community. Should such openings exist, the
Company will undertake to provide the necessary training so that affected employees can qualify
for these jobs.
d. The company shall establish, at its own expense and during regularly scheduled working
hours, an adequate retraining program for affected employees. During the training period, the
employee shall be paid at the established rate of pay for the job classification held prior to entering
the training program. [Based on IAM model language]
8.RIGHT OF FIRST REFUSAL. In the event that [company name] eliminates more than 30 percent of
jobs or assets in any two year period, or intends to close or relocate the operations, [company name] shall
make a good faith offer of sale at fair market values of plant, equipment, and inventory to the community
and to [union, or] agents who represent a majority of the employees. The community or employees shall
exercise the right of first refusal within one hundred days of receiving the offer of sale.
9. DISCLOSURE OF FINANCIAL COMMITMENT TO SUSTAINABILITY. In order to demonstrate
the extent of the firm's commitment to sustainability in [community name], [Corporation name] shall
disclose to [citizens group], within thirty days of the endorsement of this agreement [company name]
shall provide to [citizens group and union] the following documents relative to the financial condition
and commitments of the corporation:
a. The balance sheet for current accounting period and market and profit projections over the
next three years.
b. Documentation of irrevocable business commitments made in regard to the plant such as
multi-year purchase orders, and financing.
c. Research and development budgets geared toward continued production in [community
name].
d. Documentation of other expenditures that demonstrate a long term commitment to continued
operation in the community in an environmentally and socially sustainable manner.
Appendix A-15
-------
10.ANTIDISCRIMINATION PROGRAM. The corporation commits as follows:
a. The corporation is committed to advancing the role of women in its workforce. Toward that
objective the corporation commits to: [possibilities: day care, promotional structure, training program,
equal pay for equal work, etc.]
b. The corporation is committed to advancing the role of people of color in its workforce. Toward
that objective the corporation commits to: [possibilities: promotional structure, training program, equal
pay for equal work, etc.]
c. The corporation is committed to advancing the role of disabled people in its workforce. Toward
that objective the corporation commits to: [possibilities: day care, promotional structure, training
program, equal pay for equal work, advanced access policies]
d.In planning waste disposal activities, the corporation agrees that it shall not dispose of its wastes
in communities with a higher than average population of low income or minority residents.
11 JOBS IMPACT ASSESSMENT. [For expansions and new facilities]
The company shall prepare and present the committee with a jobs impact assessment, identifying the
number of jobs created and destroyed by the proposed [facility or expansion]. This assessment shall take
account of the secondary effects of these activities, including other businesses affected by the activities,
land uses which are affected, and other jobs which would have been created in the absence of the
activity. This assessment shall also identify the portion of employees, and their relative wage levels, to
be employed from existing residents of the community.
12.EMPLOYEE EDUCATION PROGRAM [RESERVED]
13.EMPLOYEE SEVERANCE PAY. [RESERVED]
14.COMMUNITY SEVERANCE PAY. [RESERVED]
ENFORCEMENT
1.PENALTIES. Any violation of this Agreement by [company] shall result in a penalty against
[company] of $25,000 per day of violation payable within 10 days of said violation to a community
Appendix A-16
-------
charity designated by [citizens group] In the event that [company] is assessed administrative or other
penalties for the same violation the same shall be credited against the penalty due hereunder. In addition
to the award of these mandated penalties, the arbitrator may issue other appropriate orders to either party
to comply with the terms of this Agreement.
[Source: Neighborhood Agreement between Quinsigamond Village Health Awareness Group and
Lewcott, Inc., Worcester, Massachusetts ]
2. DISPUTE RESOLUTION, ARBITRATION. The parties agree to the following terms for resolution in
the event that a dispute which cannot be amicably resolved arises with regard to proprietary information
or any other aspect of this Agreement. First, upon written or oral request of either party, the parties shall
attempt to resolve the dispute between themselves by conducting at least one meeting to discuss the
issue. In the event that such meeting or meetings fail to produce a resolution, or either party fails to
attend such a request meeting, the dispute shall be referred to an impartial arbitrator mutually agreeable
to all parties. Such arbitrator shall either be a neutral person mutually agreed to by the parties, or
otherwise a person selected by . Any arbitration under this agreement shall be in
accordance with the commercial arbitration rules of the American Arbitration Association. The costs
and expenses of the arbitration, including the reasonable attorneys' fees of the parties, shall be paid as
determined by the arbitrator except as provided in the following sentence. If the arbitrator determines
that the issues raised by a party are frivolous, not in good faith and without basis, all of said costs and
expenses shall be paid by such party. Judgment upon the award and any other decision rendered by the
arbitrator may be entered in any court having jurisdiction thereof. A decision of the arbitrator shall be
final and binding. Said decision must be obeyed within ten days. In such a court action reasonable
attorney and expert fees shall be awarded to the prevailing party.
3.COURT ENFORCEMENT [ALTERNATIVE TO PRECEDING CLAUSE] The parties agree that
either party or any person or entity benefitting from this contract may enforce any provision in this
contract by filing suit in district court to seek a temporary restraining order, temporary injunction,
permanent injunction of any other legally cognizable relief.
a. It is specifically understood that the committee and auditors are to act within the subject areas
established by this contract. Written recommendations of the committee which are enforceable may be
reviewed by the District Court to insure that such written recommendations and actions are not arbitrary
or capricious.
b. Venue for any litigation based on this contract shall be under the statutory provisions applicable
to venue of the [State].
Appendix A-17
-------
c. If it is necessary for [citizens' group] to pursue legal action to enforce this contract, [company]
will reimburse [citizens' group] for all legal expenses incurred including attorney's fees and court costs if
[citizens' group] prevails.
4AMENDMENT OF LICENSES AND PERMITS. As a complement to the preceding enforcement
terms, [company] will submit this agreement and support the addition of conditions consistent with the
terms of this agreement in regard to all applications, amendments, renewals or reopening of federal, state
or local government permits, licenses, or charters which arise in regard to the corporation.
S.EMPLOYEE PROTECTION, [company] shall not fire or in any other way discriminate against any
j
employee by reason of the fact that such employee has provided information or participated in
procedures pursuant to this contract. Such employees shall be designated as third party beneficiaries of
this agreement for purposes of this clause and shall have a right to enforce this provision in court and to
secure compensation for wrongful firing or discrimination.
AGREEMENT REGARDING UNION ORGANIZATION
1.[company] agrees to remain neutral in any union organizing drive at the [community name] plant, and
to avoid interfering with advocacy for a union in any way.
2. [company] agrees that the [name of union] International Union, or any of its affiliated locals, and any
other interested union shall have the following rights in addition to those specifically identified under
existing law:
a. [company] agrees to furnish [union] or any of its affiliated locals, a true and correct copy of the
names, addresses, and phone numbers of all its non-management employees within five days from the
date of signing this agreement.
b. [company] agrees to grant representatives of [union] or its affiliated locals, or any other
interested union, access to non-work areas of its facilities so that the union may present orally and in
writing its view on unionization and solicit signatures to cards and petitions.
c. [company] agrees to comply with the applicable provisions of United States law regarding labor
organization.
d. Violation of this provision is directly enforceable as a violation of this contract by any party or
third-party beneficiary of this contract in state district court.
Appendix A-18
-------
CONFIDENTIALITY CLAUSES [OPTIONAL]
1. CONFIDENTIALITY GENERALLY, [company] agrees to permit consultants and committee
members to inspect the entire facility at [company] also agrees to respond to questions they may have
about activities, processes and chemicals in use at the facility. The committee and their consultants shall
maintain and hold in confidence any information which is "Proprietary" in accordance with this
agreement. Persons receiving such information shall also confirm that to the best of their knowledge,
their employers are not a competitor of [company] in the production of the products produced in the
[company] facility.
2.USES AND PROTECTION OF PROPRIETARY INFORMATION. The participants shall use
Proprietary information disclosed to them solely for the purposes of assessing and promoting the
sustainability of the plant and its workforce. Those receiving such information shall take reasonable
precautions to prevent the disclosure of Proprietary information to any third party. In the event the
consultant or inspecting members identify a hazard to human health or environment, or violation of the
law, which relates to a proprietary aspect of the operation, the parties may inform appropriate third
parties regarding such hazard or violation.
3.NONPROPRIETARY INFORMATION. Consistent with 42 U.S.C. 11042(b), the Federal Emergency
Planning and Community Right to Know Act, nothing contained in this agreement shall prevent the
committee, its consultants or inspecting members from disclosing to others or using information which
such party can show by substantial evidence:
(a) has been published and has become part of the public domain, or is available through public
sources;
(b) has been furnished to consultant or [citizens' group] by unrelated third parties as a matter of
legal right without restrictions on its disclosure;
(c) was developed by persons and in their possession prior to the disclosure thereof by
[company];
(d) would not be entitled to Trade Secret protection under other law including but not limited to
42 U.S.C. 11042(b), the Federal Emergency Planning and Community Right to Know Act;
(e) was not pre-identified as proprietary information as required by section 10 (b) of this
Agreement.
Appendix A-19
-------
[OPTIONAL LANGUAGE ON ADVANCE WARNING OF DISCLOSURE OF PROPRIETARY
INFORMATION] Prior to the disclosure of any information which [company] has designated as
proprietary, but which the consultant or inspecting members believe to be nonproprietary and intend to
disclose the information to a person who is neither an employee of [company]nor a party to this
Agreement, the party who intends to engage in disclosure shall provide written notice to [company]at
least five days prior to disclosure and shall include a statement as to why they believe the information is
not proprietary. In the event that [company]disagrees and continues to assert that such information is
proprietary, the company may invoke the arbitration clause of this agreement for a third party
determination as to whether it is proprietary.
4. DISCLOSURE IN LEGAL PROCEEDINGS. If the Consultant or inspecting members are required by
subpoena, court order, or an order of an administrative agency to disclose any of the Proprietary
information, they shall give immediate written notice to [company]. Upon receipt of same, [company]
expressly reserves the right to interpose all objections it may have as to the disclosure of its information.
The foregoing obligation shall survive the termination or expiration of the Agreement and shall continue
until a specific written release is given by [company].
COMMUNITY RATIFICATION [OPTIONAL]
This agreement shall not have binding effect unless and until ratified by a two thirds majority vote at a
community meeting which is publicized in advance in [a local newspaper].
EMPLOYEE INCENTIVES STRUCTURE
1. [company] will establish a corporate policy and corporate financial reward/compensation/promotion
structure emphasizing sustainability, including long term economics of the plant and workforce,
environmental and safety considerations, and energy efficiency as a measure of success, [company]
agrees that it will elevate such considerations to an equal position with short term profitability in
determining promotions, bonus payments and other financial incentives offered to employees at all levels
of the company by [company].
2. The reward structure established by [company] will be submitted to the committee for their review and
comments. To the extent that the committee has problems and/or concerns about the policy, these will
be relayed to [company].
MISCELLANEOUS LEGAL CLAUSES
Appendix A-20
-------
1. AGREEMENT BINDING UPON SUCCESSORS. This agreement shall be binding upon parties who
succeed the signators, that is, upon their successors and assigns.
2. CONSIDERATION. In consideration for entering this agreement [one party] agrees to pay [the other
party] the amount of $10.00, with such amount paid upon the signing of this agreement by all parties.
3. GOVERNING LAW. The validity, interpretation and construction of this Agreement shall be
governed by the laws of [state]. It is not the intention of the parties to limit the rights and obligations of
any person or entity under the laws of [state] or the United States, except as stated herein.
4. NOTICE. Any written notice or statement required or permitted to be given under this agreement
shall be either delivered in person or by registered or certified mail, postage prepaid, return receipt
requested, to the address of the respective Party below:
[company] ADDRESS Attn: General Manager
[citizens' group] ADDRESS Attn: [contact name]
[union local] ADDRESS Attn: Bargaining agent
Either party may, by written notice to the others, change the address and names given above, with such
notice given at least 10 days prior to the change effective date.
5. WAIVER. Any waiver by either party or any provision or condition of the Agreement, shall not be
valid unless expressed and signed by such party in writing, nor shall a waiver of a subsequent breach of
the same provision or condition, unless waiver is so expressed in writing and signed by the Party to be
bound.
6. SEPARABILITY. If any section, subsection, sentence or phrase of the Agreement shall be adjudged
illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the
legality, validity or enforceability of such Agreement as a whole or any other portion of such Agreement.
7. ASSIGNMENT,SUCCESSORS AND ASSIGNS. The covenants and agreements contained in the
Agreement shall apply to, inure to the benefit of and be binding upon the Parties hereto and upon their
respective successors and assigns.
8. ENTIRE AGREEMENT. The Agreement represents the entire understanding and agreement between
the Parties hereto and supersedes any and all prior agreements, whether written or oral, that may have
existed between the parties as regards this inspection.
Appendix A-21
-------
9. AMENDMENTS. This Agreement may be amended or modified only by a written amendment to the
Agreement signed by all parties.
IO.ESCROW FUND. To provide for the costs of studies identified under this agreement and to provide
for other costs identified in this agreement, an escrow fund of $ established for the
implementation of this agreement. This escrow fund will be maintained after the first year at $
11.PARTIAL INVALIDITY. If any part of this agreement is held to be invalid by a court, it is the
intention of the parties that the remainder of the contract will remain viable and in full force and effect.
12.CONTRACT REVIEW. Four years after the effective date of this agreement, [citizens' group] and
[company] may review the terms of this agreement to determine whether any or all of the provisions of
this agreement should be altered or otherwise changed. Upon agreement of all parties, any or all of the
provisions of this agreement may be terminated or modified. It is specifically understood that neither
part>' may unilaterally terminate this agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the day and year
first written above, and agree to be legally bound by this Agreement.
[company] Inc.
By
[Plant Manager or CEO] Date
[Union]
By
[citizens' group]:
By
[Citizens group leader] Date
[Union bargaining agent] Date
Appendix A-22
-------
Attachment A
Request for Review of Documents Prior to Inspection
Dear [Plant Manager],
We appreciate your offer to allow us to inspect the [company name plant] and are looking forward to
doing so on [date]. As we mentioned, in order to prepare for our visit we would like you to provide us
with some documentation of so that we and our consultant may have a good understanding of the plant.
Specifically, we would like the following documents, at least twenty days prior to our inspection:
i) Any written programs for emergency action, Hazard Communication (OSHA), RCRA
compliance, emergency contingency plan, spill reporting procedures, fire plan/fire brigade, hazard
assessment of worst case scenarios in the event of an accident, emergency preparedness plans
pursuant to SARA Title III, employee participation in process hazard analyses, process hazard
analysis plans or work products, and other similar descriptions.
ii) Quantities, locations and methods of shipping and receiving of all chemicals used stored or
processed at the facility.
iii) Details of any environmental monitoring, medical surveillance and employee training
programs.
iv) Corporate programs and policy statements on environment, health and safety.
v) A list identifying products and services provided at the plant and a plant layout map, if possible
identifying the locations of environmental and occupational control systems, such as local exhaust
ventilation, waste treatment and air pollution controls.
vii) Information regarding the number of employees in the plant, number of shifts, whether the
plant is unionized, whether there is a health and safety committee and its composition; the role of
contract workers, if any for jobs inside or outside the plant.
viii) Any citations received for violations of municipal, state or federal regulations on environment,
health or safety in the last five years.
If there are any aspects of your plant which you consider proprietary or trade secrets, please identify
those in the letter so that we can make appropriate arrangement to protect that information.
Very Truly Yours,
[Citizens Group Leader]
Appendix A-23
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Appendix VII
-------
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Western Environmental Law Center
, 1216 Lincoln Street Eugene, Oregon 97401
541-485-2471 Fax: 54U485:2457 westernlaw@igc.-org
DEFENDING THE WEST
Attorneys
Michael Axline*
John E. Bonine*
Marianne Dugan*
Deborah Mailander*
Charles Tebbuttt
* admitted in Oregon
t admitted in Mew York
Office Manager
Kathy Cannon
Staff Scientist
Michael Wach
Legal Assistant
Kari Kytola
TAGS OFFICE:
P.O. Box 1507
TaosiNM 87571
505-751-0351
Fax:505-751-1775
santafelaw@igc.org
Attorneys
Grove Burnett*
Eric Ames*
David Gomez'f
' admitted in Mew Mexico
fadni. in Navajo Nation
Office Manager
Linda Velarde
2-SIDEDCOPY
December 19, 1995
BY CERTIFIED MAIL, RETURN RECEIP^ REQUESTED
Peter T.. Pope, Chief Executive Officer
Pope & Talbot, Incl'
1500 SW First Avenue
Portland, Oregon 97201
Wayne Henneck, Plant Manager
Pope & Talbot,. Inc.
P.O. Box 400 ..
Halsey, Oregon 973.48
Dear Mr. Pope and Mr. Henneck,.
This is a letter to provide you with notice of
Oregon Natural Resources Council's ("ONRC") intent
to file a citizen suit-against Pope & Talbot, Inc.,
("Pope & Talbot"), pursuant to § 505(a)(1)(A) of the
Clean Water Act . (CWA), 42 U.S.C. ,§ 1365(a)(1)(A) .
ONRC is a not-for-profit environmental .organization
with members residing'throughout Oregon. ONRC^s
mailing address is 5825 North Gree.ley, Portland,
Oregon 97217, telephone number (503) 283-6343.
§ 505(b) of the Clean Water Act, 33 U.S.C.
1365(b), requires that sixty (60) days prior to the
institution of a civil action under the authority of
§ 505(a) of the Clean Water Act, 33 U.S.C. I365(a),
a -citizen must give notice of its intent to sue. j
You are hereby given not'ice that, upon the.
expiration of the sixty (60) day statutory waiting
period frort the 'date of this NOTICE OF INTENT TO '
SUE, ONRC intends to file a civil action in ^federal
district court/ .
This'lawsuit will,allege that the Pope & Talbot
pulp plant in .Halsey, Oregon, which discharges into
the Willamette River, has violated and continues
to violate an "effluent standard or .limitation"
pursuant to §505(a) (l) (A) of the Clean-Water Act, 33
U.S.C. 1365(a) (1) (A) , by not complying with its'
-------
Pope &Talbot Notice Letter
December 19, 1995
Page 2
U.S.C. 1365 (a) (1) (A) , by not complying with its NPDES(§ 402)
permit OR-0001074 in the, following respects:
(A) Your permit limitation for, BOD discharge from Outfall 001 for
the period of November 1 - May 31 is 5,000 Ibs/day daily maximum
and for the period June 1 - October 31 the limit is 3700 Ibs/day .
daily maximum. Your records show that you violated your, permit on
the following occasions:
1.' October 2, 1995
2. February 22, 1995
3. February 21, 1995
4. February 20, 1995
.5. February 15, 1995
6. February.14, 1995
7. February 13, 1995
8. July 9, 1994
9. July 8, 1994
10. July 7, 1994
11.- June .23, 1994
12. J,une 22, 1994
13. June 21, 1994
Value
4222 Ibs,
6733 Ibs,
6292 Ibs;
6914 Ibs.
8944 Ibs.
8635 Ibsi
6210 Ibs.
3943 Ibs.
3761 Ibs.
4232 Ibs.
4697 Ibs.
5007 Ibs^i
5526 Ibs.
(B) Your permit' limitation for .BOD monthly average discharge from
Outfall OOi.for the period of June i -/October 31 is 250O Ibs/day
and for the period November !<- May 31 it is 4000 Ibs/day, '"Your
records show that you violated your, permit during the following'
months: i '*
Month
14, February 199"5
15. July 1994
16. June 1994
17. June 1991
Value
4725 Ibs,
2951 Ibs.
.2957. Ibs.
2758 Ibs.
, (C) Your permit limitation for dioxin, as measured by TCDD, at
Outfall 001 is 0.41 mg/day 3-day maximum and 0.30 mg/day annual
average. Your records indicat^ that you violated your dioxin
limitations on the following -occasions:
Month
18. May 1995
19. Annual 1994-95
Value
0.44 mg/day 3-Day Maximum
To Be Determined (TBD)
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Pope & Talbot Notice Letter
December 19, -1995
Page 3
these three pollutants at Outfall 001 during the following
months:
Month
20. July 1995
21. April 1995 .
22. February 1995
23. January '1995
24. December 1994
25. .November 1994"
26. September 1994
27. May 1,994 /
28. -April 1994
29. March 1994
3t>. January 1994
31. December 1993
32. September 1993
33. August 1993
of Failures to Sample Per Pollutant
2
1
1 .
1
1
1
1
1
1
1
1
1
Late Filing
Late Filing
(E) Your permit requires you to continuously, monitor for Flow
from Outfall .001* Your records show that you failed to monitor
for continuous daily flow during the period of' April 2-13 of
1994.
(F) Stipulation and Final Order (SFO) No. WQIW-WVR-93-152
required you to submit results of a Color Monitoring Study by-
November 30, 1994. You failed to submit the results of that study
until on or about February 17, 1995. You, therefore, violated the
reporting requirements of the SFO for. 78 days.
i
(G) According to your records, during August, 199-3, Ceriodaphnea
survival exceeded acceptable limits, in violation of ypur: permit.
i.
(H) Your permit requires, you to monitor for'AbX on a monthly
basis. Your records -show that you failed to report AOX data for
the entire months of January^ February and July of 1991 v
Not if ier-believes and alleges that a history of permit
violations has .continued from 1990 to the present and will
continue. Such, violations, including exceedances and reporting
failures, are known to -the Discharger and may be included in
future legal actions by Notifier..
YOU ARE FURTHER NOTIFIED that, after the expiratioij of the
sixty (60) day statutory waiting period, ONRC intends, on.behalf
of itself and its, mejnbers, to-file" suit against Pope^ & Talbot in
the appropriate federal district court pursuant to § 505(a) of
the CWA. ONRC will request that the court enforce the
requirements of. the CWA, impose civil penalties, of up to $25,000
per day of violation for-each violation stated above, in addition
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r
Pope & Talbot Notice Letter
December 19, '1995
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to thosd which have occurred during the past five years which are
not presently identified, and those-which occur subsequently,
award costs of litigation (including reasonable attorney and
expert witness fees) 'to ONRC, and award such other relief as may
be appropriate.
The name, address, and phone number of the person giving
NOTICE OF INTENT TO SUE under the CWA is:
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Oregon Natural Resources Council
5825 North' Greeley
Portland, Oregon 97217
Telephone number (503) 283--6343
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The name, address, and phone number of Counsel for Notifier is:
.Charles M. Tebbutt
Western Environmental Law Center
1216 Lincoln Street
Eugene, Oregon" 97401
Telephone number (541.) 485-2471
During-the sixty (6p) day notice period, .we will be
available to'discuss effective remedies and actions which will'
assure your company's future compliance with the terms and
conditions of your NPDES permit. requirements. In addition, we
can discuss whatever facts you believe relevant which are not
listed in -this notice letter. If you-wish tp avail yourself of.
this opportunity, or if you have any 'questions regarding this
letter, please feel free to contact counsel -for ONRC at the
address and telephone number provided.
Charles M. Tebbutt
Counsel for Notifier
cc; T- Carol Browner",-Administrator, USEPA (certified; mail)
-.-iangdon Marsh, Director of Oregon Department of
Environmental Quality (certified mail)
'- Charles C. Clarke, Regional Administrator, USEPA Region 10
(regular mai.l)
- Carlos M. Lamadrid
Registered Agent for'Pope & Talbot, Inc.
1500 SW 1st Ave.
Portland, OR 97201 (certified mail)
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2-SIDED COPY
Michael Axline, OSB #83414
Marianne Dugan, OSB #93256
Western Environmental Law Center
44 West Broadway, Suite 200
Eugene, Oregon 97401
(503) 485-2471
Attorneys for Plaintiffs Gros Ventre Tribe, Assiniboine Tribe,
and the Fort Belknap Community Council
David K.W. Wilson1, Jr.
Reynolds, Motl, Sherwood and Wright
401 North Last Chance Gulch
Helena, MT 59601
(406) 442-3261
Local Counsel
Donald Marble
Marble Law Office
Westland Law Building
P.O. Box -725
Chester, MT 59522
(406) 759-5104
Robert Golten, Jr.
University of Colorado
Indian Law Clinic
Fleming Law Building
P.O. Box 404
Boulder, CO 80309-0404
(303) 492-6779
Attorneys for Plaintiff Island Mountain Protectors Association
Peter Michael Meloy
80 South Warren Street
P.O. Box 1241
Helena, MT 59601
Local Counsel
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GROS VENTRE TRIBE, ASSINIBOINE TRIBE,
FORT BELKNAP COMMUNITY COUNCIL, and
ISLAND MOUNTAIN PROTECTORS ASSOCIATION
Plaintiffs,
v.
PEGASUS GOLD, INC., PEGASUS GOLD
1 COMPLAINT
Civil Action No.
COMPLAINT
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CORPORATION, and ZORTMAN MINING, INC.
Defendants.
I. STATEMENT OF THE CASE
1. This is a civil action for declaratory and injunctive
relief and the imposition of civil penalties under the citizen
suit provision of the Clean Water Act (CWA), 33 U.S.C. § 1365,
the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA), 42 U.S.C. § 9659, and the Montana Water
Quality Act (MCA), MCA Title 75, Ch. 5, MCA §§ 75-605(1)(a), (2).
This is also an action for declaratory and injunctive relief with
respect to tribal water rights.
2. Defendants Pegasus Gold, Inc. and Pegasus Gold
Corporation (hereinafter collectively'referred to as "Pegasus")
own or control, either directly or as parent corporations, the
Zortraan and Landusky Mines in Phillips County, Montana.
Defendant Zortman Mining, Inc., operates the Zortman and Landusky
Mines. The claims in this action arise from defendants'
operation of the Zortman and Landusky Mines and their ongoing
violations of the CWA, CERCLA, and the MCA.
II. JURISDICTION AND VENUE
3. This Court has subject matter jurisdiction over the
claims specified in this Complaint pursuant to 33 U.S.C.
§ i365(a), 42 U.S.C. § 9659(a), 28 U.S.C. § 1331 (federal
question), 28 U.S.C. § 1362 (jurisdiction over tribal claims),
and 28 U.S.C. § 1367 (supplemental jurisdiction over state law
claims).
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4. The Zortman and Landusky Mines are located and operated
in Philli'ps County, Montana, and are the source of all violations
described herein. Venue in this Court is therefore proper
pursuant to 33 U.S.C. § 1365(c)(l), 42 U.S.C. § 9659(b)(l), and
28 U.S.C. § 1391(e);
III. PARTIES
5. Plaintiffs the Assiniboine and Gros Ventre Tribes of
the Fort Belknap Indian Community reside on the Fort Belknap
Reservation, a 652,000 acre tract of land in North-Central
Montana immediately adjacent to and to the North of the mining
operations that are the subject of this complaint. The Fort
Belknap Reservation was established as a homeland for the
Assiniboine and Gros Ventre Tribes by agreement of May l, 1888,
25 Stat. 8, between the Tribes and the United States. The Fort
Belknap Community Council is the governing body of the Gros
Ventre and Assiniboine Tribes. Members of the Tribes live, farm,
hunt, fish, obtain drinking water, and engage in ceremonial
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practices downstream of the Zortman and Landusky mines.
Defendants' operations of the Zortman and Landusky mines in
violation of CWA, CERCLA, and the MCA, as alleged below, directly
and adversely impact plaintiffs' use and enjoyment of their land,
air, and .water.
6. Plaintiff Island Mountain Protectors Association (IMP)
is an unincorporated association of Native American people living
on or near the Fort Belknap Reservation. IMP members live, farm,
hunt, fish, obtain drinking water, and engage in ceremonial
practices downstream of the Zortman and Landusky mines.
3 COMPLAINT
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Defendants' operations of the Zortman and Landusky mines in .
violation of CWA, CERCLA, and the MCA, as alleged below, directly
and adversely impact IMF's members use and enjoyment of their
land, air, and water.
7. Defendant Pegasus Gold, Inc. is a Canadian corporation,
registered to do business and doing business in Montana. Pegasus
Gold, Inc.'s direct operations take place in the western United
States, including Nevada, Idaho, and Montana. Pegasus Gold, Inc.
opened the Zortman and Landusky mines in 1979. Pegasus Gold,
Inc., owns or controls, either directly or as a parent
corporation, the Zortman and Landusky mines.
8. Defendant Pegasus Gold Corporation is a Nevada
corporation, registered to do business and doing business in
Montana. Pegasus Gold Corporation owns or controls, either
directly or as a parent corporation, at least four mines in
Montana. This ownership or control includes the Zortman and
Landusky mines.
9. Defendant Zortman Mining, Inc. is a Montana corporation
registered to do business and doing business in Montana. Zortman
Mining, Inc. operates the Zortman and Landusky mines. Zortman
Mining, Inc. is a wholly owned subsidiary of Pegasus Gold
Corporation. Zortman Mining, Inc. is also the official holder of
the operating permits for the two mines.
IV. NATURE OF CLAIMS
10. On November 29, 1994, plaintiffs the Gros Ventre Tribe,
the Assiniboine Tribe, and the Fort Belknap Community Council,
served notice of their intent to file a citizen suit for
4 COMPLAINT
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violations of the CWA and CERCLA on the defendants. This notice
was also served on defendants' registered agents, the
Administrator of the Environmental Protection Agency (EPA), the
Regional Administrator of the EPA, the United States Attorney
General, the State of Montana Attorney General, and the Montana
State Department of Health, Water Quality Bureau, in compliance
with 33 U.S.C. § 1365(b)(1)(A) and 42 U.S.C. § 9659(d)(l). A
copy of this notice is attached to this Complaint as Exhibit A.
11. On February 7, 1995, plaintiffs the Gros Ventre Tribe
the Assiniboine Tribe and the Fort Belknap Community-Council
served a supplemental notice of intent to file a citizens suit
for violations of the CWA and CERCLA on the defendants. This
notice was also served on defendants' registered agents, the
Administrator of the Environmental Protection Agency (EPA), the
Regional Administrator of the EPA, the United States Attorney
General., the State of Montana Attorney General, and the Montana
State Department of Health, Water Quality Bureau, in compliance
with 33 U.S.C. §. 1365(b) (1) (A) and 42 U.S.C. § 9659(d)(l). A
copy of this notice is attached .to this Complaint as Exhibit B.
12. On June 24, 1993, plaintiff Island Mountain Protectors
Association served a notice of intent to file a citizen suit for
violations of the Clean Water Act on defendants Zortman Mining,
Inc. , and Pegasus Gold Corporation. This notice was also served
on defendants' registered agents, the Administrator of the
Environmental Protection Agency (EPA), the Regional Administrator
of the EPA, and the Montana State Department of Health, Water
5 COMPLAINT
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1 Quality Bureau, in compliance with 33 U.S.C. § 1365(b)(1)(A). A
2 copy of t'his notice is attached to this Complaint as Exhibit C.
3 13. More than sixty days have passed since the notices and
4 supplemental notice of violations were served, and the violations
5 complained of in ibhe notice and supplemental notice continue.
6 Neither the EPA nor the State of Montana has commenced and
7 diligently prosecuted an action to redress the violations noted.
8 14. Plaintiffs request relief pursuant to 33 U.S.C. § 1365
9 and 42 U.S.C. § 9659.
10 Plaintiffs seek:
11 A. A judicial declaration that defendants have violated
12 and continue to violate the CWA by discharging pollutants into
13 waters of the United States without a National Pollution
14 Discharge Eliminations System (NPDES) permit;
15 B. A judicial declaration that defendants have violated
16 and continue to violate the CWA by placing fill in waters of the
17 United States without a permit under § 404 of the CWA;
18 C. A judieia-1 declaration that defendants have violated
19 and continue to violate the CWA by degrading state waters;
20 D. A judicial declaration that defendants have violated
21 and continue to violate CERCIA by failing to notify the National
22 Response Center of releases of hazardous substances;
23 E. A judicial declaration that defendants have violated
24 and continue to violate CERCLA by failing to notify the EPA that
25 hazardous substances are or have been stored, treated, or
26 disposed of at defendant's facility;
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F. A judicial declaration that defendants have violated
and continue to violate CERCLA by failing to notify potential
injured parties of releases of hazardous substances from
defendants' facility;
G. A judicial declaration that defendants' mining
activities unlawfully diminish the quality of waters subject to
the Tribes' aboriginal rights.
H. An order enjoining defendants to comply with the CWA
and CERCLA, and cease polluting tribal.waters. In particular,
plaintiff seeks an order enjoining defendants:
i. from discharging pollutants into waters of the
United States until and unless defendants obtain a NPDES permit
authorizing such discharges as required by the CWA §§ 301(a) and
402, 33 U.S.C. §§ 1311(a), 1342, and the Montana Water Quality
Act (MCA), MCA Title 75, Chapter 5, MCA § 75-605(1)(a), (2);
ii. from discharging pollutants into waters of the
United States until and unless defendants obtain a § 404 permit
authorizing such discharges as required by the CWA, 33 U.S.C.
§ 1311(a), 33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a);
iii. from discharging pollutants that result in the
degradation of state waters in violation of the CWA 33 U.S.C.
§ 1311(b)(1)(C), MCA 75-5-303 and 75-5-605(1), and the
Administrative Rules of Montana (ARM), ARM Title 16, Chapter 20,
subchapters 6 and 7, and ARM 16.20.1011;
iv. to notify the National Response Center of the
release of hazardous substances from defendants' mining facility
as required by CERCLA § 103(a), 42 U.S.C. § 9603(a);
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1 v. to notify EPA of hazardous substances that have
2 been stored, treated, or disposed of at defendants' mining
3 facility as required by CERCLA § 103 (c), 42 U.S.C. § 9-603 (c);
4 vi. to notify potential injured parties of releases of
5 hazardous substances from defendants' mining facility as required
6 by CERCLA § lll(g), 42 U.S.C. § 9611(g);
7 H. An order imposing maximum civil penalties against
8 defendants for their violations of the CWA and CERCLA;
9 I. An order awarding plaintiffs their costs of litigation,
10 including reasonable attorney and expert witness fees;
11 J. Such additional relief as the Court deems just and
12 proper.
13 V. STATEMENT OF FACTS
14 15. The Zortman and Landusky mines are located in the
15 Little Rocky Mountains in Phillips County, Montana, just South of
16 the Fort Belknap Indian Reservation. The two mines are located
17 approximately three miles apart. The mines are located outside
18 the reservation's boundaries on traditional tribal land.
19 16. Defendants began mining operations in the Little Rocky
20 Mountains in 1979. Defendants' operations include excavating
21 enormous amounts of earth, placing the earth in heaps on concrete
22 pads, and soaking the heap with a cyanide solution to extract
2^ precious ores. The solution is applied by an above-ground
24 irrigation system.
25 17. Since commencement of mining operations, defendants
26 have generated waste materials, including but not limited to
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continuing basis. The rate of waste accumulation and release has
accelerated since defendants began using the cyanide-heap leach
process to extract the gold and silver.
18. Defendants' mining operations have caused extensive
pollution of a number of watersheds in the Little Rocky
Mountains, as detailed below. Two of these watersheds, the Kings
Creek watershed and the Lodgepole Creek watershed, and their
tributaries, drain North onto reservation lands. Kings Creek and
Lodgepole Creek, and tributaries of these creeks, are important
sources of water for the plaintiffs. Watersheds that drain to
the South of the Little Rocky Mountains have important historical
and cultural significance to the plaintiffs, and flow across
traditional tribal lands. Defendants' mining operations
significantly degrade the quality of these waters, and adversely
affect plaintiffs.
19. Defendants possess a Montana Pollution Discharge
Elimination System (MPDES) permit for limited discharges at the
Zortman Mine (MPDES Permit No. MT-0024856) and a MPDES permit for
limited discharges at the Landusky Mine (MPDES Permit No. MT-
0024864). Discharges authorized by these permits are not the
subject of this Complaint; this Complaint addresses discharges
which are not authorized by these permits.
VI. ALLEGATIONS
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Count i
Violation of the Clean Water Act
Unpermitted Fill
Zortman Mine, Alder Gulch Waste Dump
20. Section 301(a) of the CWA, 33 U.S.C. § I311(a), makes
the discharge of dredge or fill material in waters of the United
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States unlawful without a permit under § 404 of the CWA, 33
U.S.C. § '1344.
21. construction of the Alder Gulch Waste Dump began in
August of 1982. The Alder Gulch Waste Dump is located in a
tributary to Alder Gulch, known as Carter Gulch. Defendants
disposed of waste rock in Carter Gulch until 1995. Water flows
south from Carter Gulch into Alder Gulch. Defendants failed to
obtain a § 404 permit authorizing the dumping of waste rock in
the waters of Carter Gulch.
22. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
of § 301(a) of the CWA, 33 U.S.C. § 1311(a),'§ 404(a) of the CWA,
33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
Count 2
Violation of the Clean Water Act
Dnpermitted Pill
Zortman Mine, Carter Gulch
23. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes
the discharge of dredge or fill material into waters of the
United States unlawful without a permit under § 404 of the CWA.
24. During the Spring of 1993 defendants constructed a road
for heavy equipment in Carter Gulch. In doing so, defendants
dumped tons of fill, including boulders, cobble, and fine
sediment, in and along the stream channel of Carter Gulch.
Defendants failed to obtain a § 404 permit authorizing this
activity.
25. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
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of § 301(a) of the CWA, 33 U.S.C. § 1311(3), § 404(a) of the CWA,
33 U.S.C.' § 1344(3), and MCA 75-5-605 (1) (a) .
Count 3
Violation of the Clean Water Act
Unpermitted Discharge Source
Zortman Mine, Alder Gulch Waste Dump
26. Section 301(a) of the CWA, 33 U.S.C. § 1311(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
27. Wastewater migrates through the waste rock at Alder
Gulch Waste Dump, as referenced in f 21, and discharges at
various points from the base of the Dump into the surrounding
environment. Defendants have attempted to collect some of the
discharge from the Alder Gulch Waste Dump by installing a seepage
collection and pumpback system below the Dump. The seepage
collection and well pumpback system, however, do not capture all
of the discharge from the Alder Gulch Waste Dump. Wastewater
from the Dump migrates downstream to Carter Gulch and Alder Gulch
and enters ground and surface water. Defendants have no NPDES
permit authorizing discharges from the Alder Gulch Waste Dump.
28. Defendants' unpermitted discharges from the Dump
violate § 301(a) of the CWA, 33 U.S.C. § 1311(a), and MCA 75-5-
605(1)(a), (2).
Count 4
Violation of clean Water Act
Degradation of state Waters -"
Zortman Mine, Alder Gulch Waste Dump
29. Discharges from the Alder Gulch Waste Dump and the
placement of construction fill in and near stream channels in
Carter Gulch have degraded and continue to degrade state waters
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in violation of § 301(b)(1)(C) of the CWA, 33 U.S.C
§ 1311(b)'(l) (C) , MCA 75-5-303 and 75-5-605(1), ARM Title 16,
Chapter 20, subchapters 6 and 7, and ARM 16.20.1011.
Count 5
Violation of clean Water Act
Unpermitted Fill
Zortman Mine, Alder Spur Pad Complex
30. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes
the discharge of dredge or fill material into navigable waters of
the United States unlawful without a valid permit secured under
§ 404 of the CWA.
31. Defendants own and operate several cyanide heap leach
pads and associated facilities in a tributary of Alder Gulch
known as Alder Spur (hereinafter "Alder Spur Pad Complex"). The
Alder Spur Pad Complex was constructed during the period from
1979 through 1987 and involved the placement of waste rock in the
waters of Alder Spur for heap leaching. The construction also
involved the development of a land application area adjacent to
the cyanide heap leach pads for disposal of the cyanide solution
collected from the heap leach pads during the leaching process.
Defendants failed to obtain a § 404 permit to authorize the
construction of the Alder Spur Pad Complex.
32. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
of § 301(a) of the CWA, 33 U.S.C. § 1311(a), § 404(a) of the CWA,
33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
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Count 6
Violation of Clean Water Act
Unpermitted Discharge Source
Zortman Mine, Alder Spur Pad Complex
33. Section 301(a) of the CWA, 33 U.S.C. § I311(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
34. Since the late 1980s, the Alder Spur Pad Complex has
discharged wastewater to waters of the United States. In late
1992, defendants installed a seepage collection system located in
the Alder Spur stream segment downgradient of the Alder Spur Pad
Complex, in an effort to collect, some of this discharge. The
seepage collection system does not capture all of the discharge
from the Alder Spur Pad Complex. Wastewater continues to
discharge from both the Alder Spur cyanide heap leach pads and
the Alder Spur land application area. Defendants have no NPDES
permit authorizing discharges from the Alder Spur leach pads or
the Alder Spur land application area.
35. Defendants' unpermitted discharges from the Alder Spur
Pad Complex and Alder Spur land application area violate § 301(a)
of the CWA, 33 U.S.C. § 1311(a), and MCA 75-5-605(1)(a), (2).
Count 7
Violation of clean Water Act
Degradation of state Waters
Zortman Mine, Alder Spur Pad Complex
36. Discharges from the Alder Spur Pad Complex and Alder
Spur land application area have degraded and continue to degrade
state waters in violation of § 301(b)(l)(C) of the CWA, 33. U.S.C
§ 1311(b)(1)(C), MCA 75-5-303 and 75-5-605(1), ARM Title 16,
Chapter 20, subchapters 6 and 7, and ARM 16.20.1011.
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Count 8
Violation of Clean Water Act
Unpermitted Fill
Zortman Mine, 1985/86 Zortman Pad Complex
37. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes
the discharge of dredge or fill material into navigable waters of
the United States unlawful without a permit under § 404 of the
CWA.
38. Defendants own and operate several cyanide heap leach
pads and associated facilities in the upper reaches of Ruby
Gulch. The heap leach pads are locally known as the 1985/86
Zortman Pad Complex. Construction of the 1985/86 Zortman Pad
Complex began in March of 1984 and involved the placement of
waste rock in Ruby Gulch for heap leaching. Defendants do not
have a § 404 permit authorizing the placement of fill in Ruby
Gulch.
39. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
of § 301(a) o£ the CWA, 33 U.S.C. § 1311(a), § 404(a) of the CWA,
33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
Count 9
Violation of Clean Water Act
Unpermitted Discharge Source
Zortman Mine, 1985/86 Zortman Pad Complex
40. Section 301(a) of the CWA, 33 U.S.C. § I31l(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
41. Since 1985, the 1985/86 Zortman Pad Complex, as
described in ? 38, has discharged wastewater to waters of the
United States. Following pad construction and ensuing cyanide
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leaching, a weeping wall of heavily contaminated discharges
appeared and continues to discharge at the downgradient edge of
the 1985/86 Zortman Pad Complex. In January 1993, defendants
installed a seepage collection system to collect wastewater
discharging from the weeping wall in the area immediately below
the weeping wall and in Ruby Gulch. The seepage collection
system does not capture all of the discharge from the 1985/86
Zortman Pad Complex. Wastewater continues to discharge from the
1985/86 Zortman Pad Complex to surface and groundwater in Ruby
Gulch. Defendants have no NPDES permit authorizing discharges
from the 1985/86 Zortman Pad Complex.
42. Defendants' unpermitted discharges from the 1985/86
Zortman Pad Complex violate § 301(a) of the CWA, 33 U.S.C. §
1311(a), and MCA 75-5-605(1)(a), (2).
Count 10
Violation of Clean Water Act
Unpermitted Discharge Source
Zortman Mine, Ruby Gulch Wastewater Treatment Plant
43. Section 301(a) of the CWA, 33 U.S.C. § 1311(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
44. In March 1994, defendants constructed the Ruby Gulch
Wastewater Treatment Plant in Ruby Gulch. Since then, the Ruby
Gulch Wastewater Treatment Plant has discharged pollutants to
waters of the United States. Defendants did not obtain an NPDES
permit prior to constructing the Waste Water Treatment Plant, and
do not currently have a NPDES permit authorizing the discharges
from the Wastewater Treatment Plant to surface waters of Ruby
Gulch.
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45. Defendants' unpermitted discharges from the Treatment
Plant into Ruby Gulch violate § 301(a) of the CWA, 33 U.S.C.
§ 1311(a), and MCA 75-5-605(1)(a), (2).
Count 11
Violation of Clean Water Act
Degradation of State Waters
zortman Mine, Ruby Gulch Drainage
46. Since approximately 1985, defendants have periodically
injected calcium hypochlorite from a feed shack located along the
Ruby Gulch stream channel to water flowing in Ruby Gulch to
neutralize -the cyanide contamination caused by the wastewater.
These calcium hypochlorite injections have caused elevated
chloride levels in surface water in Ruby Gulch. Heavily
contaminated seeps from the weeping wall and the- 1985/86 Zortman
Pad complex and discharges from defendants' wastewater treatment
plant also have contributed to a .deterioration of water quality
in Ruby Gulch.
47. Discharges from the 1985/86 Zortman Pad Complex, the
Ruby Gulch Wastewater Treatment Plant, and periodic calcium
hvpochlorite injections have degraded and continue to degrade
*'.-. .''" r':
state waters'in violation of § 301(b)(l)(C) of the CWA, 33 U.S.C
§ 1311(b)(l)(C), MCA 75-5-303 and 75-5-605(1), ARM Title 16,
Chapter 20, subchapters 6 and 7, and ARM 16.20.1011.
Count 12
Violation of Clean Water Act
Unpermitted Pill
Zortman Mine, Lodgepole Drainage
48. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes
the discharge of dredge or fill material into navigable waters of
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the United States unlawful without a permit under § 404 of the
CWA.
49. Defendants own and operate an excavation pit known as
the Ross Pit. The Ross Pit is located in a tributary of the
Lodgepole Creek Drainage known as Glory Hole Creek. Loose
materials are located along the margins of this pit. Defendants
have no § 404 permit authorizing the dumping of loose waste
material in Glory Hole Creek.
50. The dumping of loose waste material without a § 404
permit constitutes the discharge of a pollutant into navigable
waters in violation of § 301(a) of the CWA, 33 U.S.C. § I3ll(a),
§ 404(a) of the CWA, 33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
Count 13
Violation of Clean Water Act
Unpermitted Discharge Source
Landusky Mine, Gold Bug Adit
51. Section 301(a) of the CWA, 33 U.S.C. § I311(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
52. Defendants own and operate an area known as the Gold
Bug Adit. The Gold Bug Adit is the portal to an old mine
controlled by defendants that is located in Montana Gulch, a
tributary of the Rock Creek Drainage. The Gold Bug Adit is
connected to the Gold Bug Pit, where defendants place mining
wastes. The Gold Bug Pit is a recharge area for flows that
discharge from the Gold Bug Adit. Since commencement of mining,
the Gold Bug Adit has discharged and continues to discharge
wastewater to Montana Gulch. Until May 1993, the water was
discharged directly into surface water in Montana Gulch. Since
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May 1993, the water has been 'discharging to surface waters in
Montana Gulch via a contingency pond and outlet. Defendants have
no NPDES permit authorizing the ongoing discharges from the Gold
Bug Adit.
53. Defendants' unpermitted discharges from the Gold Bug
Adit into Montana Gulch violate § 301(a) of the CWA, 33 U.S.C. §
1311(3), and MCA 75-5-605(1)(a), (2).
. count 14
Violation of Clean Water Act
Unpermitted Pill
Landusky Mine, Montana Gulch Waste Dump
54. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes
the discharge of dredge or fill material into navigable waters of
the United States unlawful without a permit under § 404 of the
CWA.
55. In March of 1983, defendants established a waste rock
pile locally known as the Montana Gulch Waste Dump. The Montana
Gulch Waste Dump was constructed in waters of Montana Gulch.
Defendants have no § 404 permit authorizing the dumping of waste
in Montana Gulch.
56. The dumping of wasterock without a § 404 permit
constitutes the discharge of a pollutant into navigable waters in
violation of § 301(a) of the CWA, 33 U.S.C. § 1311(a), § 404(a)
of the CWA, 33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
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count 15
Violation of Clean Water Act
Unpermitted Discharge Source
Landusky Mine/ Montana Gulch Waste Dump
57. Section 301(a) of the CWA, 33 U.S.C. § 1311(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
58. Since defendants established the waste rock pile in
Montana Gulch in 1980, the Montana Gulch Waste Dump has
discharged wastewater to surface and ground water in Montana
Gulch. Defendants have no NPDES permit authorizing the discharge
of pollutants to Montana Gulch.
59. Defendants' unpermitted discharges from the Montana
Gulch Waste Dump into Montana Gulch violate § 301(a) of the CWA,
33 U.S.C. § 1311(a), and MCA 75-5-605(1)(a), (2).
Count 16
Violation of Clean Water Act
Unpermitted Fill
Landusky Mine, 1985/86 Landusky Pad Complex
60. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes
the discharge of dredge or fill material into navigable waters of
the United States unlawful without a valid permit secured under
§ 404 of the CWA.
61. Beginning in March of 1984, defendants established a
cyanide heap leach pad known as the 1985/86 Landusky Pad Complex.
The 1985/86 Landusky Pad Complex was constructed by placing waste
materials in and around the waters of Montana Gulch. Defendants
do not have a § 404 permit authorizing the placement of fill in
Montana Gulch.
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62. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
of § 301(a) of the CWA, 33 U.S.C. § 1311(a), § 404(a) of the CWA,
33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
Count 17
Violation of Clean Water Act
Unpermitted Discharge Source
Landusky Mine/ 1985/86 Landusky Pad Complex
63. Section 301(a) of the CWA, 33 U.S.C. § 1311(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
64. Since construction of the 1985/86 Landusky Pad Complex
began in March of 1984, wastewater has discharged from the Pad
Complex to surface and ground water in Montana Gulch. Defendants
have no NPDES permit authorizing the discharge of pollutants from
the Landusky Pad Complex.
65. Defendants' unpermitted discharges from the Pad Complex
into Montana Gulch violate § 301(a) of the CWA, 33 U.S.C.
§ 1311(3), and MCA 75-5-605(1)(a), (2).
Count 18
Violation of Clean Water Act
Unpermitted Fill
Landusky Mine, 1979/84 Pad complex
Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes the
discharge of dredge or fill material into navigable waters of the
United States unlawful without a valid permit secured under § 404
of the CWA.
66. In the late 1970s defendants constructed a cyanide heap
leach pad known as the 1979 Pad in Montana Gulch. In 1980
defendants constructed a cyanide heap leach pad, known as the
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1980 Pad, in Montana Gulch. In 1982 defendants constructed a
cyanide heap leach pad known as the 1982 Pad in Montana Gulch.
In July of 1983 defendants began construction of a cyanide heap
leach pad known as the 1984 Pad in Montana Gulch. The Pad
Complex (hereinafter the "1979/84 Pad Complex") was constructed
by placing waste materials in Montana Gulch. Defendants have no
§ 404 permit'authorizing the placement of fill in Montana Gulch.
67. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
of § 301(a) of the CWA, 33 U.S.C. § 1311(a), § 404(a) of the CWA,
33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
Count 19
Violation of Clean Water Act
Unpermitted Discharge Source
Landusky Mine, 1979/84 Pad Complex
68. Section 301(a) of the CWA, 33 U.S.C. § 1311(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
69. Since construction of the 1979/84 Pad Complex
wastewater has discharged from the Pad Complex to surface and
ground water in Montana Gulch. Defendants have no NPDES permit
authorizing the discharge of pollutants from the 1979/84 Pad
Complex.
70. Defendants' unpermitted discharges from the 1979/84 Pad
Complex into Montana Gulch violate § 301(a) of the CWA, 33 U.S.C.
§ 1311(a), and MCA 75-5-605(1}(a), (2).
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Count 20
Violation of Clean Water Act
Degradation of State Waters
Landusky Mine, Rock Creek Drainage, Montana Gulch Tributary
71. Discharges from the Gold Bug Adit, the Montana Gulch
Waste Dump, the 1985/86 Landusky Pad Complex, and the 1979/84 Pad
Complex as described in 55 52, 55, 61, and 66 respectively, have
degraded and continue to degrade state waters in violation of
§ 301(b)(l)(C) of the CWA, 33 U.S.C § 1311(b)(1)(C), MCA 75-5-303
and 75-5-605(1), ARM Title 16, Chapter 20, subchapters 6 and 7,
and ARM 16.20.1011.
Count 21
Violation of Clean Water Act
Unpermitted Fill
Landusky Mine, Sullivan Pad Complex
72. Section 301(a) of the CWA, 33- U.S.C. § 1311(a), makes
the discharge of dredge or fill material into navigable waters of
the United States unlawful without a permit under § 404 of the
CWA.
73. In the late 1980s defendants constructed a cyanide heap
leach pad complex'in the upper portion of the Sullivan Creek
Tributary to Rock Creek, known as the Sullivan Pad Complex.
Defendants have no § 404 permit authorizing construction of the
Sullivan Pad Complex in Sullivan Creek.
74. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
of § 301(a) of the CWA, 33 U.S.C. § 1311(a), § 404(a) of the CWA,
33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
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Count 22
Violation of Clean Water Act
Unpermitted Discharge Source
Landusky Mine, Sullivan Pad Complex
75. Section 30l(a) of the CWA, 33 U.S.C. § I31l(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
76. Since construction of the Sullivan Pad Complex,
wastewater has discharged from the Sullivan Pad Complex to
surface and ground waters in the Sullivan Park tributary to Rock
Creek. Defendants have constructed a slurry wall and contingency
pond, and installed a pumpback well and seepage collection
system. The seepage collection system and pumpback well,
however, do not capture all of the discharge from the Sullivan
Pad Complex. Wastewater continues to discharge to surface and
groundwater from the Sullivan Pad Complex. Defendants have no
NPDES permit authorizing the discharge of pollutants from the
Sullivan Pad Complex.
77. Defendants' unpermitted discharges from the Sullivan
Pad Complex violate § 301(a) of the CWA, 33 U.S.C. § 1311(a), and
MCA 75-5-605(1)(a), (2).
Count 23
Violation of Clean Water Act
Degradation of State Waters
Landusky Mine, Sullivan Creek Drainage
78. The Sullivan Pad Complex has massive seeps from its
base to surface and groundwater in the Sullivan Creek tributary
of Rock Creek. These discharges have degraded and continue to
degrade state waters in violation of § 301(b)(1)(C) of the CWA,
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33 U.S.C § 1311(b) (1) (C) , MCA 75-5-303 and 75-5-605(1), ARM Title
16, Chapter 20, subchapters 6 and 7, and ARM 16.20.1011.
Count 24
Violation of clean
Landusky
79. Section 301(a) of the CWA, 33 U.S.C. § 1311(a), makes
the discharge of dredge or fill material into navigable waters of
the United States unlawful without a permit under § 404 of the
CWA.
80. In March of 1987, defendants constructed the Mill Gulch
Waste Dump to dispose of waste material excavated from the Little
Ben and August mining pits at the Landusky Mine. The Mill Gulch
Waste Dump was constructed in and around Mill Gulch, a tributary
of Rock Creek. Defendants have no § 404 permit authorizing the
construction of the Mill Gulch Waste Dump in Mill Gulch.
81. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
of § 301(a) of the CWA, 33 .U.S.C. § 1311(a), § 404(a).of the CWA,
33 U.S.C. § 1344(a), and MCA 75-5-605(1) (a) .
Count 25
Violation of Clean Water Act
Unpermitted Discharge Source
Landusky Mine/ Mill Gulch Waste Dump
82. Section 301(a) of the CWA, 33 U.S.C. § 1311 (a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
83. Wastewater from the Mill Gulch Waste Dump discharges
into the waters of Mill Gulch. Defendants have attempted to
collect some of the discharge from the Mill Gulch Waste Dump by
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installing seepage collection systems below the Dump. The
seepage collection systems, however, do not capture all of the
discharge from the Mill Gulch Waste Dump. Defendants have no
NPDES permit authorizing the discharge of pollutants from the
Mill Gulch Waste Dump.
84. Defendants' unpermitted discharges from the Mill Gulch
Waste Dump into Mill Gulch violate § 301(a) of the CWA, 33 U.S.C.
§ 1311(a), and MCA 75-5-605(1)(a), (2).
Count 26
Violation of Clean Water Act
Unpermitted Pill
Landusky Mine, Mill Gulch Pad Complex
85. Section 301(a) of the CWA, 33 U.S.C. § I311(a), makes
the discharge of dredge or fill material into navigable waters of
the United States unlawful without a valid permit secured under
§ 404 of the CWA.
86. In the mid 1980s, defendants constructed a cyanide heap
leach complex, the Mill Gulch Pad Complex, in the upper reaches
of Mill Gulch. Construction of the Mill Gulch Pad Complex
consisted of placing waste material into Mill Gulch. Defendants
have no § 404 permit authorizing the construction of the Mill
Gulch Pad Complex in Mill Gulch.
87. The dumping of fill without a § 404 permit constitutes
the discharge of a pollutant into navigable waters in violation
of § 301(a) of the CWA, 33 U.S.C. § 1311(a), § 404(a) of the CWA,
33 U.S.C. § 1344(a), and MCA 75-5-605(1)(a).
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Count 27
Violation of clean Water Act
unpermitted Discharge Source
Landusky Mine, Mill Gulch Pad Complex
88. Section 301(a) of the CWA, 33 U.S.C. § 1311(3),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
89. Wastewater from the Mill Gulch Pad Complex discharges
to surface and groundwater in Mill Gulch. Defendants have no
NPDES permit authorizing the discharge of pollutants to Mill
Gulch.
90. Defendants' unpermitted discharges from the Mill Gulch
Pad Complex into Mill Gulch violates § 301(a) of the CWA, 33
U.S.C. § 1311(a), and MCA 75-5-605(1)(a), (2).
Count 28
Violation of Clean Water Act
Degradation of State Waters
Landusky Mine, Rock Creek Drainage, Mill Gulch Tributary
91. The Mill Gulch Waste Dump and the Mill Gulch Pad
Complex, have massive seeps from their base to surface and
groundwater in the Mill Gulch tributary of Rock Creek Drainage.
These discharges have degraded and continue to degrade state
waters in violation of § 30l(b)(l)(C) of the CWA, 33 U.S.C §
1311(b)(1)(C), MCA 75-5-303 and 75-5-605(1), ARM Title 16,
Chapter 20, subchapters 6 and 7, and ARM 16.20.1011.
Count 29
Violation of Clean Water Act
Unpermitted Discharge Source
Landusky Mine, Kings Creek Drainage
92. Section 301(a) of the CWA, 33 U.S.C. § 1311(a),
prohibits "the discharge of any pollutant by any person" unless
such discharge is specifically permitted by a NPDES permit.
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1 I 93. Historic waste rock and tailings are located in the
2 Kings Creek Drainage on property controlled by defendants. These
3 tailings discharge into Kings Creek. Defendants have no NPDES
4 permit authorizing the discharge of pollutants into Kings Creek.
5 94. Defendants' unpermitted discharges into Kings Creek
6 violate § 301(a) of the CWA, 33 U.S.C. § 1311(a), and MCA 75-5-
7 605(1)(a), (2).
8 Count 30
Violation of CERCLA
9 Failure to Notify the National Response Center
10 95. Hazardous substances are defined in § 101(14) of
11 CERCLA, 42 U.S.C. § 9601(14), and 40 C.F.R. § 302. The cyanide
12 heap leach process for extracting gold involves the application
13 of a cyanide solution to the ore extracted from the earth. When
14 water and the cyanide solution contact exposed rock, heavy metals
15 are mobilized and released into the environment. Heavy metals
16 released into the environment from the Zortman and Landusky
17 Mines, include, but are not limited to, cadmium and arsenic.
18 Cyanide, cadmium,- and arsenic are all listed in 40 C.F.R. § 302.4
19 as hazardous substances within the meaning of § 101(14) of
20 CERCLA, 42 U.S.C. § 9601(14).
21 96. Section 103(a) of CERCLA, 42 U.S.C. § 9603(a), requires
22 facilities to notify the National Response Center of the release
23 of a hazardous substance in quantities equal to or greater than
24 reportable quantities established pursuant to 42 U.S.C. § 9602.
25 Releases of cyanide, cadmium, and arsenic, in excess of one (1)
26 pound constitute "reportable quantities" as listed in 40 C.F.R. §
27 302.4.
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97. Defendants have released and continue to release
hazardous substances, including, but not limited to, cyanide,
cadmium, and arsenic, in reportable quantities at numerous
locations within the Zortman and Landusky facility. These
releases occur continuously during the operation of the mining
facilities. Defendants have not notified the National Response
Center of the release of hazardous substances.
98. Defendants' failure to notify the National Response
Center of its releases of hazardous substances violates § 103(a)
of CERCLA, 42 U.S.C. § 9603(a).
Count 31
Violation of CERCLA
Failure to Notify the Environmental Protection Agency
99. Section 103(c) of CERCLA, 42 U.S.C. § 9603(c), requires
facilities that store, treat, or dispose of hazardous substances
to notify the Environmental Protection Agency (EPA).
100. Defendants store, treat, and/or dispose of hazardous
substances, including but not limited to cyanide, cadmium, and
arsenic. Defendants have not notified the EPA of the storage,
treatment, and/or disposal of hazardous substances at the Zortman
and Landusky mining facilities.
101. Defendants' failure to notify EPA of its storage,
treatment, and disposal of hazardous substances violates § 103(c)
of CERCLA, 42 U.S.C. § 9603(c).
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Count 32
Violation of CERCLA
Failure to Notify Potential Injured Parties
102. Section lll(g) of CERCLA, 42 U.S.C. § 9611(g), requires
facilities to notify potential injured parties of releases of
hazardous substances.
103. Defendants have released and continue to release
hazardous substances, including but not limited to cyanide,
cadmium, and arsenic from the Zortman and Landusky mining
facilities without notifying potential injured parties of such
releases.
104. Defendants' failure to notify potential injured parties
of the ongoing release of hazardous substances from its Zortman
and Landusky mining facilities violates § lll(g) of CERCLA, 42
u.s.c. § 9611(g).
Count 33
Degradation of Aboriginal Water Rights
105. The Assiniboine and Gros Ventre Tribes have aboriginal
rights to waters on and around the Fort Belknap Reservation.
These rights include the right to all water, undiminished in
quality, necessary to fulfill the purposes of the Reservation.
106. The operations of the Zortman and Landusky mines, as
alleged above, significantly diminish the quality of the waters
subject to the Tribes' aboriginal rights.
VII. PRAYER FOR RELIEF
WHEREFORE, plaintiffs pray that this Court:
A. Declare that defendants have violated and continue to
violate the CWA by failing to obtain National Pollution Discharge
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1 Elimination System (NPDES) permits for discharges to waters of
2 the United States;
3 B. Declare that defendants have violated and continue to
4 violate the CWA by failing to obtain § 404 permits for the
5 placement of fill in waters of the United States;
6 C. Declare that defendants have violated and continue to
7 violate the CWA by degrading state waters;
8 D. Declare that defendants have violated and continue to
9 violate CERCLA by failing to notify the National Response Center
10 of releases of hazardous substances from defendants' mining
11 facility;
12 E. Declare that defendants have violated and continue to
13 violate CERCLA by failing to notify the EPA of hazardous
14 substances stored, treated, and/or disposed of at defendants'
15 mining facility;
16 F. Declare that defendants have violated and continue to
17 violate CERCLA by failing to notify potential injured parties of
18 the release of hazardous substances from defendants' mining
19 facility;
20 G. A judicial declaration that defendants' mining
21 activities unlawfully diminish the quality of waters subject to
22 the Tribes' aboriginal rights.
«
23 H. Enjoin defendants from discharging pollutants from its
24 facility into [ground and] surface waters until.and unless
25 defendants obtain NPDES permits authorizing such discharges as
26 required by the CWA § 301(a), 33 U.S.C. § 1311(a);
27
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1 I. Enjoin defendants from placing fill in waters of the
2 United States until and unless defendants obtain § 404 permits
3 authorizing such discharges as required by the CWA, 33 U.S.C. §
4 1311(a), and 33 U.S.C. § 1344(a);
5 J. Enjoin defendants from discharging pollutants from its
6 facility that result in the degradation of state waters in
7 violation of the CWA, 33 U.S.C. § 1311(b)(1)(C);
8 K. Enjoin defendants to notify the National Response
9 I Center of releases of hazardous substances from defendants'
10 mining facility as required by CERCLA § 103(a), 42 U.S.C. §
11 9603(a);
12 L. Enjoin defendants to notify the EPA of hazardous
13 substances stored, treated, and/or disposed of at defendants'
'
14 mining facility as required by CERCLA § 103(c), 42 U.S.C. §
15 9603(c);
16 M. Enjoin defendants from diminishing the quality of
17 waters subject to the Tribes' aboriginal rights.
18 N. Enjoin defendants to notify potential injured parties
19 of release of hazardous substances from defendants' mining
20 facility as required by CERCLA § lll(g); 42 U.S.C. § 9611(g);
21 O. Order defendants to pay penalties for its violations of
22 the CWA and CERCLA to the maximum extent permitted by law;
2* P. Award plaintiffs their costs and reasonable attorney
24 and expert witness fees pursuant to 33 U.S.C. § 1365(d) and 42
25 U.S.C. 9659(f);
26 /////
27 /////
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Q. Grant such additional relief as the Court deems just
and proper. __*»_
A/y
Respectfully submitted, this jzffl day of June, 1995.
_^ ^ ^
MichaelAxline^ OSfi"# 83414
Marianne Dugan, OSB # 93256
Counsel for Plaintiffs Gros
Ventre Tribe; Assiniboine
Tribe, and Fort Belknap
Community Council
Kim Wilson, Local' Counsel
Robert Golten
Don Marble
Counsel for Plaintiff Island
Mountain Protectors
Peter Michael Meloy
Local Counsel
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