Chapter 5 – Rich Case Description
5.1. The Werra case
5.1.5. Events during the process
Table 5.2 below provides a list of the RT meetings, including both meetings in the formal sense and working groups (§8, Codex of Operations). Along with the list of meetings, specific events are reported that have changed the terms of the discussion
at the RT. The first of such events was the presentation of the Measures Package (Maßnahmenpaket) by K+S, closely followed by the Public Law Agreement
(Öffentlich-Rechtlicher Vertrag) between K+S and the two State Administrations Thuringia and Hessen. The next turn in the process takes place instead with the presentation of the Strategy Paper by K+S and the related Integrated Measures Concept. As shown in Table 5.2, we thus distinguish three phases: Phase 1 (from Meeting 01 to Meeting 08), Phase 2 (from Meeting 09 to the Working Group on Scenarios 02) and Phase 3 (from Meeting 12 to the final Meeting 16).
During Phase 1, the process aimed at identifying a feasible set of solutions for the salinity problem unfolds along the lines sketched above. An initial catalogue of technical measures is reviewed and complemented through the knowledge available to the RT Members. Working groups take place so as to address specific questions and approach a clustering of viable solutions and intervention packages. By the time Phase 2 begins, the process of analysing the catalogue of technical intervention and collectively reviewing the individual measures is at an advanced stage. The
presentation of the Measures Package produces a sudden change in the selection process.
The Measures Package presented by K+S encompasses a series of interventions optimising the production processes within the several facilities operated by K+S. It involves investments for about 350 Million EUR. By then, the RT was operating since about six months, though the representatives of K+S made no mention of this plan of theirs. The official narrative put forward so as to justify the secrecy behind the
package was that research and optimisation are an ongoing process at K+S, and they didn’t stop because of the company’s involvement in the RT. Furthermore, the Package could be unveiled only when specific technical solutions were available, providing certainty to the realisation of the Package. Unveiling work in progress would have instead harmed the company’s competitiveness.
Label of the meeting Date Key Event Phase 1
Meeting 01 March 18, 2008 Start of the works; Constitution
Meeting 02 April 15, 2008
Meeting 03 May 24, 2008
Meeting 04 June 24, 2008
WG Measures 01 (“AG Maßnahmen 01”)
August 7, 2008 WG Technological State of the Art
(“AG Stand der Technik”)
August 11, 2008
Meeting 05 September 2, 2008
WG Measures 02 (“AG Maßnahmen 02”)
September 18, 2008
Meeting 06 October 21, 2008
Meeting 07 November 12, 2008 K+S Measure Package
WG Scenarios 01 (“AG Szenarien 01”)
December 11, 2008
Meeting 08 January 13, 2009
Phase 2
Meeting 09 January 28, 2009 Public Law Agreement
Meeting 10 February 24, 2009
WG Measures 03 (“AG Maßnahmen 03”)
March 26, 2009 Discussion Meeting April 15
(“AG Diskussionsrunde 15.4.”)
April 15, 2009
Meeting 11 April 21, 2009
Symposium Salinity
(“Fachgespräch Versalzung”)
April 27, 2009 WG Scenarios 02
(“AG Szenarien 02”)
May 7, 2009
Phase 3
Meeting 12 May 26, 2009 K+S Strategy Paper
WG Scenarios 03 (“AG Szenarien 03”)
June 4, 2009 WG Pipeline/NIS
(“AG Fernleitung/NIS”)
June 25, 2009
Meeting 13 July 7, 2009
Meeting 14 August 31, 2009 Retreat
WG Salinity Thresholds (“AG Härtegrenzwert”)
September 25, 2009 WG Pipeline
(“AG Fernleitung”)
October 19, 2009
Meeting 15 November 10, 2009 Int. Measure Concept; Pre-vote WG NIS (“AG NIS”) January 26, 2010
Meeting 16 February 9, 2010 Recommendation
Legend
WG: Working Group Table 5.2 – Meetings of the Round Table.
From the minutes of Meeting 07, we know that the document unveiling the Package was released on a very short notice (the day before the meeting). We also read that the Package itself has been received with a mixed feeling within the RT. On one hand, it takes up the measures clustered in Category A (see Table 5.1 in the
previous subsection) almost entirely. This circumstance is viewed positively. On the other hand, the secrecy behind the Package’s development and communication has severely undermined the level of trust towards K+S among RT Members. What is more, Package encompasses measures, that are either limited to zero-cost
interventions or that create value added. The minutes reveal how this circumstance undermines the credibility of K+S rhetoric of long-standing commitment towards an environmentally friendly production. Through the Package, K+S appears to react to profit, while tackling the salinity issues in the Werra is thereby a by-product at best (WG Scenarios 3, June 4 2009, pg. 7)26.
From this point on, the problems connected with the alternative disposal channel of injecting salt water in the underground gains prominence on the agenda. In the very same Meeting 07 (November 12, 2008, pg. 4), the insight is officially put forward, that the underground layers are not as water tight as they were believed until 2006, when the last permit was issued. The renewal of the permit is at risk and K+S is to show a path towards a zero-injection (Null-Versenkung) arrangement. Two months later (Meeting 09), a Public Law Agreement between K+S, Hessen and Thuringia is
signed, binding K+S to provide a list of short term measures and a Strategy Paper by mid 2009. K+S is also to produce an Integrated Measures Concept (Integriertes Maßnahmenkonzept) by late 2009. The agreement is negotiated and signed outside the RT, solely between Hessen, Thuringia and K+S. In the agreement the
counterpart for K+S’s commitment is a legal framework which doesn’t yet grant but allows for a temporary continuation of the injection practice beyond the permits.
A later legal assessment considers the agreement void, a circumstance which is likely to be known back then by the lawyers involved in drafting the agreement27. A void agreement has no legal value: it is as if it never existed. The RT Members took it however for valid and had to cope with the consequences that both the Agreement and the Package jointly had on the decision process. From this point on, the Package
26 On this issue, see also the findings of the 1st round of interviews concerning K+S (Appendix 4, Section A4.1.3.1.).
27 Personal communication by a legal expert involved in the abovementioned assessment.
belongs to the status quo, implying that the task for the RT is to explore solutions for what the Package does not achieve, taking the Package itself for given and
contributing knowledge to the drafting of both the Strategy Paper and the Integrated Measures Concept. The Package “happens” to coincide more or less with those intervention catalogue the RT has identified with Category A (see Table 5.1 above).
With this step, the desirability of the Package itself and of the relative extent of its individual elements are however taken away from the judgement of the RT. This is the status quo with which the RT enters Phase 2.
During Phase 2, the work on the fact sheets is accomplished and several assessments are commissioned in order to clarify specific aspects of given measures. This includes the development of a computational model producing salinity prognoses on the basis of different intervention scenarios and variable conditions. This knowledge is sought after so as to allow for an evaluation of the different options available. Given that the status quo now includes the Measures Package, the effort of the RT is concentrated towards assessing its effectiveness and screening for necessary additional measures. From Phase 2 onwards, two measures become the centre of discussion: a pipeline to the North Sea and the fate of the injection practice.
The Strategy Paper marks a second turning point in the discussion. Core outcome of the debate during Phase 2 is (simplifying) that a pipeline is necessary in order not to preclude the achievement of a good ecological status. At the same time, the end of the injection practice causes an increase of the amount of waste water to be
disposed of in the Werra. Several years are necessary before the pipeline is operative, leading to a new issue: a temporary increase in the salinity of the Werra caused by the time gap between the end of the injection practice and the realisation of the pipeline. Such an increase is unwelcome under many respects. In particular, the EuWFD forbids the worsening of the ecological state of a river. The EuWFD also allows for a postponed achievement of the good ecological status only under the condition of showing a pathway towards the achievement. In more general terms, it would have been difficult to communicate an increase in the salinity of the Werra as the outcome of the work of the RT.
The Strategy Paper is expected to address this issue, making use of the insights gained through the work of the RT. The release of the Paper is however met with disappointment by most members at the RT. Reason for this is the introduction of the New Integrated Salt Management (labelled “NIS” from the German “Neue Integrierte Salzsteuerung”) and its relative weight compared to the prospects of the construction of a pipeline. Through the Strategy Paper, K+S presents a scenario where the
Measures Package is complemented with a different injection technique (the NIS), expected to bring down the salinity of the Werra from the current 2.500 mg/l to about 1.700 mg/l. The option of a pipeline can be explored in case either NIS or the
Measures Package prove less effective than expected.
Most members in the RT appeared puzzled by this proposal. When the underground has been proven unsuitable as a sink for saltwater, K+S proposes to use it as a filter, pumping salted water into the soil while pumping less salted water out of it at a different location. Furthermore, K+S prospects a scenario where both the
underground and the Werra are exposed to environmental pressure in the long term, basically until the salt mines are exhausted and K+S ceases its operations in the area.
Even more puzzling is the fact that, despite the criticism, K+S maintains this approach in the Integrated Measures Concept. The Integrated Measures Concept has been presented in November 2009, at a session which was supposed to conclude the works of the RT. A voting was held on that day, returning 15 votes in support of the recommendation, 3 votes against it and 6 abstentions. This voting had however a preliminary character. The press release that followed announced the
“disappointment” of the Director of the RT towards the attitude of K+S and the
continuation of the works for a few more months. A final voting was held on February 9, 2010. The draft recommendation put to votes returned 22 votes in favour, 3 votes against and no abstention. To that recommendation we turn in the next subsection.