On Red Mud and Other Messes

It was one of the worst environmental disasters in Europe. In October 2010, near the town of Ajka in northern Hungary, a reservoir wall containing the industrial sludge pond of an alumina plant collapsed and more than a million cubic meters of toxic red mud swept across the countryside, through several villages, and into the rivers feeding the Danube. Ten people died, and more than 120 were injured. The pictures of the disaster are astonishing.

Accidents happen. But this was not a complete surprise. As early as 2006, the International Commission for the Protection of the Danube River declared this particular pond to be "at risk" of polluting the area around the river. Moreover, Hungary had gradually been weakening the legal framework for environmental protection.

Csaba Kiss is an environmental lawyer in Budapest. He acknowledged that in some respects, the environmental situation has improved in Hungary. There is less untreated sewage going into the water, for instance. But other trends are worrying, such as greater soil erosion or the impact of greater traffic on the environment.

On the legal front, the government has effectively reduced the number of environmental impact assessments (EIA). "Before the early 2000s, the list of facilities and activities that required an EIA was very long, and Hungary was the best pupil in the class," Kiss told me in an interview in his office in May 2013. "At that time in Austria there were like 13 EIAs a year. Here in Hungary, each regional environmental agency had 100 EIAs. At that time in Hungary we had 12 agencies. And then the government decided to bring it down to the EU average. And that happened in 2005. And now we are 'fine' because we are just like every other EU country having 100, not 1000, per year."

He continues to work on a variety of EIA cases, including one that involved the proposed conversion of an eel-breeding farm into a five-star hotel area. "However, in the last 20 years when this place wasn't being used for breeding these fish, it became a place for biodiversity," he reported "So, the fight was over whether the builders had evaluated what had happened in the last 20 years since the farming had stopped. And we kind of won."

Kiss and his team were not involved in the huge red mud spill. But they've been working on another red mud case, another tailing pond used for alum-earth processing. "But this place has not been used for many years, so it's absolutely dry so there is no chance of a spill," he said. "So the biggest problem is that now the wind blows away the dust. And there is a company that decided to cover up this place. Sounds good -- it's environmentally positive stuff. But the way they cover it is to collect hundreds of thousands of tons of waste -- including hazardous waste -- bring it to the site, mix it all together, and then leave it there for a month to three months. They call it composting. But these are acids, toxic materials, the rock beds from railway tracks that are contaminated with oil and pesticides. They call the end result 'artificial soil.' We went to the European Commission so that it could start the infringement procedure against Hungary breaching the European waste legislation. I hear that there is a very good chance that this will exceed the margin of tolerance for the Commission, so they will take it to the Court."

We talked about personal injury cases connected to environmental pollution, industrial development that takes place in or near parks and areas of biodiversity, and why, according to a popular Hungarian joke, the Germans, Russians, and Hungarians in Hell don't try to escape from their boiling cauldrons.

The Interview

How would you evaluate the state of the environment here in Hungary compared to 20 years ago? Has it improved dramatically, has it remained relatively the same, or has it gotten substantially worse?

We have to distinguish between just giving an overall kind of evaluation of the physical state of the environment and the state of legal regulation. Saying that it's better, worse, or the same doesn't really reveal the developments over the last 20 years. Three major areas are industrial pollution, nature and biodiversity (including elements like water, air, and so on), and the human and urban environment. In terms of industrial pollution, there has been a huge improvement. We have incorporated first the American standards and then later the EU standards. The facilities that could function and operate in the 1990s are inconceivable today. You can't just start a business today with the technology you had in the 1990s.

In terms of the biodiversity, of course, we are also impacted by the disappearance of species. Surface water quality to some extent is getting better because there is less sewage released into the fresh water.

That's untreated sewage?

Yes, untreated. On the other hand, more chemicals are used, and the treatment doesn't always work for certain types of chemicals like hormones in medicine. Therefore there is an increase in this type of the pollution. Of course we're also impacted by global trends, like climate change and so on. Because of soil erosion, the amount of arable land is decreasing.

In terms of the urban environment, we are very much impacted by the growing traffic. The internal parts of cities and rural towns are worse to live in. It's urban sprawl. People move out of the cities, and then they start to commute by car because public transport is not good enough. So they leave the inner cities to have a better living environment. But only the immediate environment gets better as they impact the larger environment. They don't realize that they do much more harm to the environment. If you're sitting in a concert and then you stand up to see better, you will see better. But if everybody else stands up, then you won't see any better. What is rational for a single individual is not for the whole community. That's what has happened in Hungary. But if I'm obliged to give a grade, I would say that, because of the untreated sewage and unregulated waste streams and contaminated sites in the 1990s, we are slightly better off today.

So, that's positive.

Yes, it's positive. But the problem is that there's been a much bigger technological development. It's like when you start at a race, and you increase your speed. You're happy because you're accelerating, but you don't realize that others have already passed the finish line. Just look at what's happening now in terms of utility costs decreasing. The same amount of money could have been invested in solar panels, wind power, renewables of various types. We are not very good at solar, but that's still better than wasting the money. So, our slight improvement is positive, but that's no reason to feel pride because it could have been much better.

It sounds like much of the improvement was a result of happenstance - because of the collapse of industry or because of EU regulations. Was there anything positive that could be attributed to positive government action over the last 20 years?

I could try to save their ass, but I've decided not to. It's not just because I'm not able to find some good examples. But in an overall evaluation I would say that even if there have been good initiatives like setting up the environmental ombudsman office, they just downgraded this initiative a year ago. So even if there was a good initiative, it just disappeared. I know that there are other countries like this. I have environmental lawyer friends in Europe and all over the world. I have two friends in Ireland who say that there is no genuine Irish environmental law that does not stem from EU requirements. This is not true for Hungary. We have some regulations that are quite okay from before EU accession or even before the change of the political regime. We had a general law on the environment from 1976, four years after the Stockholm Conference, which was quite okay for that general level of development. But recently, we gave up being forerunners or creative.

What about things like environmental impact statements? Do you have a strong structure for that?

Yes, it's a strong structure. It's one of the few things where public participation is really regulated in detail. The government agencies and the regional environmental agencies cannot skip this obligation in order to favor the industries. The first so-called interim regulation dated exactly to 1993 when we introduced the Environmental Impact Assessment (EIA) system. There have been a few changes. But we didn't decrease the level of protection guaranteed by EIA, we just eliminated our extra burden. Just two words of explanation: before the early 2000s, the list of facilities and activities that required an EIA was very long, and Hungary was the best pupil in the class. At that time in Austria there were like 13 EIAs a year. Here in Hungary, each regional environmental agency had 100 EIAs. At that time in Hungary we had 12 agencies.

So, very low-scale activity also required an EIA. And then the government decided to bring it down to the EU average. And that happened in 2005. And now we are "fine" because we are just like every other EU country having 100, not 1000, per year.

That's too bad because the principle of the EU is to harmonize up, not to harmonize down. They're supposed to get Austria to perform at the Hungarian level...

Definitely. But it's very hard to convince the state administration because of the budgetary implications. Also the problem was that, although we did over-perform in a quantitative sense, qualitatively we got some complaints from the European Commission about how we regulated those activities, which on issues like thresholds, were not always in line with the spirit of the EU directive.

I want to ask you a question about the general legal environment before I ask you specifically about environmental law. There's been enormous criticism about what's happened, especially the last few years, in terms of the erosion of "rule of law" in Hungary, for instance, government intervention into the legal system. Are those assessments of a dangerous situation in Hungary largely correct, or are they overblown?

To read the rest of the interview, click here.