Case: appeal the refusal to provide information
Region: Ukraine, Ivano-Frankivsk region, Kalush city
Essence of the case: protection right of access to information
Parties: EPL, Ivano-Frankivsk regional state administration (Ivano-Frankivsk RSA)
Essence of the problem: violation of public access to environmental information on disposal of hazard waste (Hexachlorobenzene (HCB))
EPL was approached by local residents of Kalush town concerning pollution of soils and waters by HCB since early 2000. The production of carbon tetrachloride and perchloroethylene in 70th in Kalush region resulted in accumulation of 540 tones of HCB waste. The storage of this hazardous waste was inappropriate and before 2000 the tanks containing HCB waste corroded and were flooded by water, thus HCB polluted the environment. Analysis of soil samples of storage site showed that HCB level exceeded norms by 100 and sometimes more times.
Starting from 2010, some volumes of HCB waste were removed from the storage site (8500 tones, 9500 tones, 1300 tones and 3400 tones).
During 2011-2013, the removal of HCB waste from Kalush was perfomed by «S.І. Group Consort LtD » (Izrael). This company won procurement calls initiated by the Ministry of Environment of Ukraine in 2011-2012 and by the Department of construction, amenities, town planning and architecture of Ivano-Frankivsk state administration in 2013. State procurement procedures were performed without open competition, only from one company «S.І. Group Consort LtD » (Izrael) only based on information that such company was already contracted by the Ministry of Environment to perform disposal of obsolete pesticides.
The company that handles hazardous waste has to hold valid license for hazardous waste management and «S.І. Group Consort LtD » (Izrael) was lacking this license. Services of «S.І. Group Consort LtD » (Izrael) were compensated from the state budget. In 2014 the Ministry of Environment reported that the storage area of HCB was clean, but independent testing of soil samples showed extreme pollution with HCB exceeding the norm by 3200 times. Financial and prosecution bodies conducted investigation of activities of «S.І. Group Consort LtD » and company failed to provide supporting documents for 95% of money received from the state budget.
The company exported polluted soil to the Great Britain and Poland for safe disposal. But results of tests of polluted soil conducted in the UK showed that concentration of HCB in removed soil was only 14% instead of 50%, and Polish officials reported that Ukrainian waste soil from Kalush was tested and HCB concentration in soil was only 1,6%. This meant that truly contaminated soil was not properly collected and transported for utilization.
After such clean up of the storage site, the concentration of HCB in soil exceeds limits by 518 000 times. A few criminal cases were initiated on corruption and misuse of state budget by officials, «S.І. Group Consort LtD » filed a suit against Ukraine in USA court claiming compensation of expences for their services provided to the Ministry of Environment concerning export and clean up of 8000 tones of hazardous waste.
EPL followed the process of clean up from the very beginning, conducted site visits, took samples of soils contaminated with HCB, brought this case under the attention of journalists. EPL raised the issue of the lack of competence and necessary permits by “SI Group Consort LTD ”.
On December 8, 2014, EPL appealed to Ivano-Frankivsk regional state administration (RSA) with a request to provide the following information and document on HCB disposal from Kalush district:
- What company took HCB waste on its balance and in what amount. EPL requested copies of decisions on transfer of HCB to the company balance and copies of the supporting accounting documents.
- Was the HCB waste on Kalush landfill inventoried? If yes, please provide copies of inventory acts.
- What were the containers and the packing method to transport HCB waste abroad?
- Did the amount of waste mentioned in the agreements contain parts of soil and plants?
- What was the weight of the containers. Who and when was putting HCB into containers?
- Were the acts of weighting and packing of HCB waste made with the involvement of representatives of state executive authorities, local government and executor of agreements? If so, please provide copies of them.
- Was the concentration of HCB in wastes established? If so, please provide copies of relevant documents.
- How much money and according to what contracts were paid for HCB disposal? Please provide copies of all contracts, acts of acceptance of services, copies of payment documents.
- Are all acts of acceptance of services of all agreements of HCB signed? If so, please give their copies. Do the signed acts confirm the fulfillment of all the conditions for the HCB disposal? Please, provide documents, mentioned in the clauses 4.4.1 and 4.4.2 of the agreement No. 55 from August 29, 2013.
- Please, provide documents that confirm the amount and time of HCB disposal.
On December 22, 2014, with the letter No. 947, the Ivano-Frankivsk RSA answered that requested information would be provided by theDepartment of construction, housing, urban development and architecture (Department).
On February 24, 2015 and on March 4, 2015, EPL also asked the Department to provide information about the compliance of LLC “SI Group Consort LTD ” with the qualification criteria of the procurement procedure for the purchase of services for disposal of hazardous waste. EPL also requested copies of hazardous waste management licenses and permits that LLC “SI Group Consort LTD ” had in Ukraine and other foreign countries, as well as copied of other procurement documents.
EPL have not receive all the requested information. According to the Department`s answer, there was opened a criminal proceeding that made it impossible to provide copies of documents. Also, the Department refused to provide information about the procurement procedure for the purchase of services of disposing hazardous waste from LLC “SI Group Consult LTD” because such information is confidential. Such refusal did not meet the requirements of the Ukrainian legislation on information and on access to public information (requested by EPL information was not confidential, there were no legal grounds to refuse to provide the requested information). The refusal of the Department violated EPL’s right to access to public information.
EPL appealed to the Lviv Regional Administrative Court with a lawsuit against Ivano-Frankivsk RSA and its Department with demands to admit that refusal to provide information was illegal and to oblige the defendants to provide the requested information.
According to the decision of November 02, 2015, the court admitted that the refusal to provide information was illegal (case number 813/2654/15). But it didn’t obliged the defendant to provide the requested information. EPL appealed this decision to Lviv Appellate Administrative Court of Ukraine. But the appeal court did not change the decision of the first instance court. Such decisions of courts had not protected EPL`s right to access to public information, so EPL went to the Supreme Court (the court of the second appeal).
On November 29, 2019 the panel of judges of the Cassation Administrative Court within the Supreme Court upheld the cassation appeal of EPL. The Supreme Court agreed with EPL’s arguments and stated that requested by EPL information was not confidential, secret or official, but was public information, and that refusal to provide information was illegal. The Supreme Court ordered the Defendants to provide the information requested by EPL.
Since the hearing of the Supreme Court was made without the presence of the parties, EPL only recently found out about its decision. So EPL started the proceeding to execute this decision. We asked the defendants to disclose the information we requested based on the decision of the Supreme Court.
EPL still considers such information relevant and needed by the society to follow-up the criminal proceedings regarding “SI Group Consort LTD ” and to prevent such companies from clean-up of contaminated areas in the future. EPL is ready to analyze the requested documents and inform the wider public about our conclusions.