The Finnish Supreme Court (the “FSC”) rendered its decision on 21 November 2019 in the infamous Talvivaara mining company environmental criminal case concerning major waste-water leaks into the environment.
The FSC upheld the decision made by the Rovaniemi Court of Appeal earlier in spring 2018 when the Court of Appeal sentenced the former CEO and Chairman of the Board of Talvivaara to a six-month suspended prison sentence and imposed a fine on the former manager of Talvivaara. A further former member of the management of Talvivaara had been imposed fines by the Court of Appeal, but was denied permit to appeal to the FSC.
The case concerned several leaks from the wastewater ponds of Talvivaara mine between 2006 and 2013, which caused high concentrations of sulphate and other chemicals to be released into the environment. These emissions polluted the nearby waterways transforming them into stratified pools of saltwater.
The legal question brought before the FSC for determination was whether the elements of environmental degradation were met in circumstances where the emissions from the wastewater ponds of the mine considerably exceeded the levels estimated in Talvivaara’s environmental permit application which, however, did not include any specific limits for such emissions. Noteworthy is that the actual emissions had been vastly higher (up to several dozen times) than the estimated emissions in the company’s environmental permit application.
The FSC ruled that the estimates given in the permit application formed a part of the company’s environmental permit and should thus be considered as applicable permit conditions to which the company was required to adhere. As the emissions from the wastewater ponds of the mine had considerably exceeded the estimates, the company and its management had acted against the permit conditions. Further, the FSC concluded that the release of high-levels of harmful emissions into the environment is subject to an environmental permit specifically allowing such activity, and as the company’s environmental permit did not allow such activity, the release of high-levels of harmful emissions into the environment had also been made without a proper environmental permit in place.
As for liability of management under Finnish law, the decision further confirms (please see our news https://www.ww.fi/news/2016/10/the-finnish-supreme-court-rules-on-the-board-of-directors-liability-for-impairment-of-the-environment-kko-201658/#content) that management is liable for compliance with the environmental permits of a company, such permit terms also to include information provided for in the permit application.