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CMS Hasche Sigle achieves victory for K+S: Kassel Higher Administrative Court confirms immediate enforcement of approval for discharge of saline water from fertilizer production

27/03/2013

Hamburg – In its most recent ruling, Kassel Higher Administrative Court has permitted K+S KALI GmbH to continue injecting saline water from the Werra potash plant into deeper rock strata. The ruling means that Gerstungen local authority, the Werra Valley campaign group and the Thuringian Association for Angling and Nature Conservation have failed before Kassel Higher Administrative Court in their appeal against a resolution reached by Kassel Administrative Court. The initial case had already confirmed the immediate enforcement of water law-related approval granted to the company.

CMS Hasche Sigle represented K+S KALI GmbH as summoned party in the case. CMS Hasche Sigle has been advising K+S successfully for many years in administrative court disputes, including those that involve issues relating to saline water from potash production.

K+S manufactures fertilizers and special products from crude salt extracted from its combined mine at the Werra plant, the largest potash plant in the world. Saline water is produced during the manufacturing process. The practice of discharging this salt wastewater into the deep-lying, naturally salty dolomite bed has been carried out for decades and is a key requirement for production, although the quantities of saline water have been decreasing for years. K+S is currently implementing an investment package of water pollution control measures costing EUR 360 million which will lead to a further significant reduction in saline wastewater by 2015. In November 2011, Kassel Regional Administrative Authority, as the relevant water authority, had granted approval to continue discharge activities until 2015. A detailed review had previously revealed that the discharge was quite safe, even taking strict water protection legislation into account.

Gerstungen local authority and the two environmental associations challenged this approval and petitioned for enforcement to be suspended until the principal proceedings have been completed. Kassel Administrative Court rejected this application for a suspension in August 2012. Kassel Higher Administrative Court confirmed this decision in its ruling of 20 March 2013 (2 B 1716/12) and rejected the claimants’ complaint.

The court concluded that the approval granted by Kassel Regional Administrative Authority had been issued after due process. A formal environmental impact assessment was not required, it found. The Regional Administrative Authority had also properly recognised the opinions of the relevant expert authorities. The claimants’ allegations that the discharge posed a risk to the municipal drinking water supply and disturbed a European nature reserve were rejected as being merely theoretical and not substantiated. The final assessment of the impact of the discharge remained a matter for the principal proceedings, the court said. Furthermore, the administrative court had carefully considered the opposing interests. Public interest in the supply of the commodity and the preservation of more than 5,000 jobs should be accorded a higher priority than the unsubstantiated risks posed by the discharge. This non-appealable decision by Kassel Higher Administrative Court authorises K+S to continue the discharge until the principal proceedings have been completed, thus ensuring continued operation of the Werra plant.

CMS Hasche Sigle

Dr Fritz von Hammerstein, Public Law, Lead Partner
Dr Robert Krüger, Public Law

Press Contact
presse@cms-hs.com

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Press Release KuS, 27/03/2013
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