Bulgaria Guilty Of Polluting Its Air
Bulgaria has failed to comply with EU clean air standards, the European Court of Justice (ECJ) decided on April 5, 2017. The judgment concluded case C-488/15 against the Republic of Bulgaria in favour of the European Commission with the court ruling that by exceeding the daily and annual limit values for particulate matter ( PM10) concentrations systematically and continuously between 2007 and 2014, Bulgaria had failed to fulfil its obligations under the provisions of Directive 2008/50/EC on ambient air quality and cleaner air for Europe. The EC also pointed out that Bulgaria had also failed to take any sort of action to end its infraction in due time and had allowed excess concentrations to persist from 11 June 2010, the deadline for complying with prescribed limit values, until 2014. At the time the complaint was filed in February 2017, the levels of particulate matter exceeded the established thresholds by a factor of eight, and it was only then that Bulgaria’s problem with pollution caught the attention of politicians and the mass media.
Technically speaking, PM10 is defined in the Ambient Air Quality Directive per the standard EN 12341:1999 of the European Committee of Standardization as “particulate matter which passes through a size-selective inlet with a 50% efficiency cut-off at 10 μm aerodynamic diameter”. Scientific reports have repeatedly warned of the adverse health effects of air pollution on Bulgarian citizens, and excessive levels of PM10, a mixture of soot, organic, and inorganic materials in the air, can cause real damage to both the cardiovascular system and respiratory channels. In fact, the World Health Organization found that three million premature deaths around the world in 2012 were due to polluted ambient air, of which 479,000 occurred in Europe, and 8,634 of those were in Bulgaria. According to a report from WHO, Bulgaria’s own premature mortality rate of 118 per 100,000 capita is the second highest in the world behind the Ukraine.
These startling facts were presented before the ECJ by Advocate General Juliane Kokott on November 10, 2016, and the case was brought under Art. 258 of the Treaty of the Functioning of the EU. The Commission’s complaint declared that Bulgaria had failed to fulfil its obligation to comply with the limit values for PM10 as set forth in the Directive and had also failed to contain the period of infringement to as short a time as possible. By doing so, the court claimed that Bulgaria had breached EU standards for ambient air quality and, in particular, surpassed the allowed concentration levels of PM10 in its air.
According to data from the European Environmental Agency (EEA), the concentration of this pollutant is higher in Bulgaria than in any other member state. Back in 2009, the EEA had claimed that Bulgaria had already experienced as many as 1,600 premature deaths per one million due to air pollution since 2005 and that this number could be reduced to around 1,000 if the limit values were complied with. Corresponding figures for premature deaths due to air pollution in the other 26 member states at the time ranged between 650 and 850 per one million.
On 14 April 2009, the EC received a notification from Bulgaria stating that the limit values for PM10 could not be complied with in the country’s six regions and that it was thus requesting a postponement of the deadline for compliance with the thresholds pursuant to Article 22 of Directive 2008/50/EC. However the Commission decided to raise objections to this notification on 11 December 2009 in response to which Bulgaria sent another notification on 9 June 2011 requesting an extension of the deadline once again. This time, the Commission flat out rejected the request as the legal deadline for any exemptions to the prescribed limit values was just two days later on 11 June 2011.
During this time, on 1 October 2010, the Commission also requested that Bulgaria submit to observations pertaining to the infringement of Article 13 of Directive 2008/50/EC. On 25 January 2013, the Commission supplemented this request with a complaint that Bulgaria had not yet drawn up any appropriate plans to curtail its excess particulate matter as prescribed in Article 23 of the Directive. The Commission thus referred to the period from 2007 to 2011 as a period of non-compliance, which Bulgaria did not dispute. Bulgaria did however claim that the situation was improving and that the concentrations of PM10 were actively decreasing.
Nevertheless, the Commission maintained its complaints and issued a reasoned opinion on 11 July 2014, which referred to 2012 PM10 figures and set a final time frame of two months for Bulgaria to take action. Bulgaria continued to claim that the situation was gradually improving and that the high figures of particulate matter were primarily due to the use of certain solid fuels for domestic heating during the winter, a rather laughable excuse as it is exactly these sorts of fuels the EC seeks to curtail. The Commission, not surprisingly, deemed these replies inadequate and on 14 September 2015 brought the action before the ECJ.
Inadequate excuses- and a surprise guest
The European Commission and the Republic of Bulgaria submitted written observations and presented oral arguments at a hearing on 29 September 2016, during which Poland intervened in support of Bulgaria. The intervention should not have been seen as such a surprise as, according to EEA data, Poland was also experiencing significant problems with exceeding PM10 limit values, especially in the southern part of the country. Thus Poland had a vested interest in the outcome of this case as well as a clear bias in taking sides with Bulgaria.
There are two ways of exceeding threshold levels for PM10 established under Article 13 and Annex XI of Directive 2008/50/EC. The first is the 24-hour limit value of 50 μg/m3, which is not to be exceeded more than 35 times a year. The second is the annual limit value of 40 μg/m3, which may not be exceeded at all. The data show that since Bulgaria’s accession to the EU, both values have been continuously exceeded, and the annual limit value has been complied with only once back in 2009 in the region of Varna. The most recent figures mentioned in the written procedure were from 2015.
Today Bulgaria has established air quality plans in place, and this is not contested by the Commission. The problem is that these plans have not achieved the desired results. According to the Ambient Air Quality Directive, countries must introduce measures to ensure that exceedance periods are as short as possible. Bulgaria’s plans include different target dates for compliance with prescribed thresholds in order to shorten these periods of infraction, but none of those targets have ever been attained. The Commission maintains that the plans have failed because proper consideration was never given to the full range of measures that could have ensured success, such as stricter quality standards for solid fuels for domestic heating and restrictions on road traffic.
No one denies that Bulgaria has established air quality plans; the problem is that they do not achieve the desired results.
Kokott claims in her opinion that the air quality plans prepared by Bulgaria suffer from structural deficiencies. Bulgaria did not provide the Commission with any information on the precise territorial scope of the plans, the timetable for their implementation, the improvements in ambient air quality to be expected as a result of the planned measures, or any clear idea of when compliance with the limit values should be expected in order to effectively shorten its infringement period. All of these parameters relate to items required under Section A of Annex XV of Ambient Air Quality Directive, and Bulgaria’s failure to provide this information is indeed a serious lacking.
The Commission acknowledges that since 2011 many of the monitoring stations in Bulgaria have registered a decrease in PM10 concentrations. But the EC also claims that these achievements are simply not sufficient. In 2015, Bulgaria’s Minister of Environment and Waters, Ivelina Vassileva, was cited by the journal Legal World as admitting that the country’s air pollution problem was serious. “The decrease of the emissions of harmful substances is a priority for which about 120 million BGN (appr. 60 Mil. EUR) are allocated for such measures under the new Programme Environment, we have prepared also amendments in the law”, explained the minister. According to Vassileva, the best way to handle the problem with PM10 and air pollution in general was via municipal ambient air quality programmes. Around that time the government did in fact file amendments in the Ambient Air Act, which were passed by the Parliament in the end of 2015 and allowed for greater powers within municipal councils to control air quality.
The municipal authorities are indeed the ones closest to the problem and have the best ability to monitor and affect change. Pressed by the very real issue of polluted air and by the Ministry of Environment and Waters (MoEW), the cities are thus in the process of updating of their local ambient air quality programmes to reduce the emissions and lower the levels of harmful substances in the air. Dipl. arch. Boyan Kolarov, the deputy mayor for the environment in Dobrich, one of Bulgaria’s larger municipalities, has indicated that his city is clearly aware of the problem and is implementing concrete measures for the reduction of air pollution. At the same time, municipalities around the country are expecting MoEW to adopt a new ordinance on the assessment and management of ambient air, as the current Ordinance No.7 is from 1999 and is in need of an overhaul. This new legislation should also help refine and accelerate efforts.
To be fair, Bulgaria’s problem of air pollution is not an isolated case within the European Union nor around the world. According to WHO, 92% of the world population lives in places where WHO’s air quality standards are not met. An EEA report has registered a trend towards the significant reduction of the medium values of PM10 in 75% of the monitoring stations between 2000 and 2014, but the latest data for 2014 still show results above the limit values in 21 out of the 28 EU member states. Furthermore, 50% of city dwellers are exposed to PM10 concentrations higher than the stringent WHO recommendations.
Eva Kovachehova of Via Iuris, an organization of environmental lawyers in Slovakia, claims that the situation in Slovakia is similar to that of Bulgaria. The country adopted ambient air quality programmes a few years ago, but these were more formal gestures than calls to action and have not brought about any improvement in PM10 levels. The measures are seen as ineffective, vague, and, in some cases, simply outdated, thus making Slovakia another example of a country in need of more effective ordinances.
Considering the outcome of Bulgaria’s case, local institutions, especially MoEW and the municipalities, are facing intense pressure to find a successful formula to reducing particulate matter concentrations back within the EU’s prescribed levels and remove Bulgaria from the blacklist of countries with the dirtiest air. That might mean having to adopt unpopular measures like the reduction of solid fuels for domestic heating and reducing car traffic in the cities, but what has to be done must be done. And the country would be better off in the long run, both in terms of its air as well as its citizens’ health.
There are plenty of good examples and practices around the world that Bulgaria could learn from and implement to affect these reforms. Major metropolises such as London, Milan, Stockholm, and Gothenburg have introduced a congestion tax in the city center during working hours. Berlin, Milan, and Malmo have established green zones (low-emission zones), especially for vehicles over 3.5 tonnes. Other successful measures include public transportation using clean energy, car share schemes, public transport vouchers for employees, and the ban or limitations on heating with polluting fuels. And these measures lead to other benefits for society as well, including the reduction in healthcare costs and a better quality of life in urban environments due to cleaner air and less congested roads.
It may be an inconvenience at first for Bulgaria to enact such reforms, but Bulgaria is only hurting itself by not adopting smarter, greener policies today. It owes such action to its present inhabitants and also to future generations who stand to greatly benefit as well.
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