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Ombudsman Svetina Sees Many Anomalies In Janković’s C0 Sewerage Channel Project

“The public is not properly involved. It is not sufficiently taken into account, and that is, after all, a violation of the Aarhus Convention [the aim of which is to guarantee access to information, public participation in decision-making and access to justice in environmental matters]. And this is true not only in this specific case but also in general,” said Ombudsman Peter Svetina about the controversial C0 sewerage channel project.

At Thursday’s meeting of the Commission of Inquiry for determining wrongdoing in the construction of the C0 sewerage channel in the Ljubljansko Polje aquifer area, chaired by MP Anja Bah Žibert of the Slovenian Democratic Party (Slovenska demokratska stranka – SDS), two witnesses were heard under agenda item number one. The first to be heard was the Human Rights Ombudsman, Peter Svetina, and the second was Stasja Grkman, Internal Auditor at the Ministry of the Environment and Spatial Planning. MP Bah Žibert explained that Mr Svetina had been called as a witness on the basis of the evidentiary decision of the 13th of December 2023. As the MP had pointed out in her opening remarks, there was a lack of transparency, as well as signs of illegality in the procedures for managing the C0 sewerage channel project, and it was alleged that the legislation on construction, spatial planning and environmental protection had been circumvented. She recalled that the construction of the C0 sewerage channel also involved the use of both taxpayers’ and cohesion funds. She also focused the discussion at Thursday’s meeting on the latter.

MP Bah Žiber began by asking Svetina what he knows about the issue of the C0 sewerage channel. She also recalled that the Ombudsman had previously said that he was following the matter closely. In addition, she pointed out that the President of the Republic, Nataša Pirc Musar, was also following the matter and had made some concrete proposals. At that time, the Ministry of the Environment and the Slovenian Environment Agency (ARSO) had been contacted on the matter, and the Commission of Inquiry received relevant, comprehensive answers from them. The Environment Agency provided more extensive explanations of the preliminary procedure, the environmental impact assessment procedure and the issue of the environmental permit, and a thorough reply was also sent from the Ministry of the Environment, together with the positions of all the constituent authorities (the Environment Agency, the Water Directorate of the then Inspectorate for Environment and Spatial Planning).

In view of the government’s position made on the 28th of February 2019 to parliamentary questions on its doubts about the adequacy of the technical solutions for the sewerage channel run through the protected water catchment area, which had been raised by civil society initiatives, a further enquiry was also addressed to the Ministry of the Environment. The latter was expected to take a decision at that time on the revision of the technical solution for the construction of the channel in the Jarški Brod water catchment area. The audit was to be limited to the route between Tacno and the Bridge over the Sava River on Dunajska Street, assessing the adequacy of the technical solution of the C0 sewerage channel and suggesting possible better solutions.

Svetina: “The Ministry of the Environment and Spatial Planning informed us at the time that, as an intermediate body, it was carrying out management checks on the process in accordance with its tasks for the 2014-2020 programming period.”

The Ombudsman is actively working to prevent environmental damage

According to Svetina, the Ministry confirmed the decision on the revision of the technical design of the C0 sewerage channel on a certain part of the route and stated that the preparation of the terms of reference and other projects for the implementation of the public procurement were already underway. At the time, they welcomed the decision of the Ministry of the Environment, while urging it to carry out the necessary procurement procedures without undue delay. They specifically noted that action in the field of environmental protection, conduct and action by the pre-legislative supervisory authorities within a reasonable timeframe is essential, as potential future environmental damage can be prevented or minimised. Svetina believes that one of the “cardinal sins” lies in the 2004 Regulation on the water protection area for the Ljubljansko Polje aquifer.

It is difficult to judge a specific case, but he has detected a number of anomalies

At that time, neither a risk analysis of pollution of the water body nor an environmental impact assessment was required. As a result, the investor obtained the water consent without any major problems, and this information was obtained from the Ministry of the Environment in a letter addressed to it by the Water Directorate in February 2019. It also referred to more information and initiatives from NGOs that it had received. While he and his team have been following the case closely, the Ombudsman believes that they do not have the competence to carry out an environmental impact assessment in a specific case, i.e. to determine whether the route is correctly located. However, they can argue that the numerous initiatives in the field of environmental protection and land-use planning reveal a number of anomalies that are not new.

That is why the Ombudsman also advises each successive government on specific recommendations, pointing out that these anomalies should be rectified, but to date, no progress has been made. Svetina specifically highlighted the fragmentation of major construction projects into smaller ones, thus avoiding stricter requirements, which is, of course, allowed by law. Unfortunately, there has been no progress in this area. There is no adequate monitoring mechanism to prevent this. In his opinion, it is also controversial that the investor himself commissions and proposes the expert basis and the need for the procedures (environmental impact assessment). He also recalled that there is, in fact, a kind of dependence between the client and the contractor. He pointed out that the Ombudsman’s recommendations are regularly rejected by the government because of disagreement.

He also pointed to the lack of protection of interested parties in specific procedures and the lack of public involvement in the adoption of general environmental and spatial planning acts. The Ombudsman has also been drawing attention to this area since at least 2007. “The public is not properly involved. It is not sufficiently taken into account, not least in violation of the Aarhus Convention. And this is true not just in this specific case but also in general. And unfortunately, this recommendation has still not been implemented.” There have been problems in the area of legal protection, late involvement or attempts to exclude individuals from the case, etc. Another key problem is also the ineffectiveness of environmental monitoring, which the Ombudsman has been pointing out for 15 years.

Svetina believes that legislation should be reformed to prevent, for example, the fragmentation of plots of land in order to not have to ensure an environmental impact assessment. MP Bah Žibert pointed out that the Ombudsman alone can open a case and even an investigation or hearing without any initiative. Bah Žibert: “As this is an environmental project affecting around 300 thousand people and is considered by the profession to be an environmental problem, there could be serious consequences. Could it be that the Ombudsman has not considered opening this file himself and actually looking into the matter himself?”

According to the profession, this is a project that could have serious consequences

The second speaker before the Commission was Stasja Grkman. She recalled that the Minister had issued a decision on an extraordinary internal audit and that there was no need for an environmental impact assessment. This was the second decision from January 2016. However, after Grkman started to review the material and after the initial kick-off meetings at the Environment Agency, it was found that another decision (the original one) had been issued before that one, that the impact assessment in question was not necessary (from 2015), and she had then taken the decision that she would continue with the revision based on the individual commitments made by the state in its role as co-manager of the cohesion funds. She then decided to examine in more detail whether the declaration was correct (that there would be no impact on groundwater status).

Not all criteria were subject to assessment

She also checked whether the consents had been properly issued (that the impact on groundwater had been verified). At the same time, she also checked the payment of the contracts, concluding that everything was in order, and that management had taken certain measures on the basis of these revelations. Bah Žibert went on to ask whether Grkman might know why it was necessary to audit the report. Grkman replied that when management had obtained the second decision in January 2016, namely that an environmental impact assessment was not necessary, management had found the decision unusual, as environmental impact assessments usually take a very long time, which was why Grkman had been asked to review matters. Bah Žibert: “What were the consequences of this report? You said that certain measures were taken in this regard…?” Grkman: “The Control Auditor can make recommendations to improve the internal control system, and I have made those recommendations.”

Grkman added that some things have already come to fruition, which she is very proud of. In particular, the Water Directorate has prepared guidelines for lenders and investors for interventions affecting groundwater. The guidelines are available to both investors and assessors. Bah Žibert: “How is it that you have identified a number of irregularities, and the contractor consequently treated you as if your work is malicious or even politically motivated?” Grkman replied that internal auditors receive political labels every time. “It is not pleasant, but it is not surprising,” she explained. She assured the Commission of Inquiry that she was not politically motivated, as she would have to change direction constantly. Internal auditors are also subject to strict standards and codes of ethics. During the process itself, Grkman found that not all criteria were subject to an assessment, which was also noted by the Court of Audit. In this respect, she also highlighted the disaster risk criterion (environmental, natural, etc.). These are illogical decisions that could have been checked by a diligent auditor but were not (e.g. the differences between the units of measurement for the C0 sewerage channel).

Domen Mezeg

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