ESA disappoints the mercury submarine U-864

The Norwegian Environmental Protection Association (NMF) has challenged ESA (EFTA Surveillance Authority) and can conclude that ESA is an administrative body with a mandate that is not geared towards environmental matters. Without delving into NMF's complaint, ESA concludes that the Norwegian authorities are certainly in control. Such an attitude is dismissive and passive. Here, after all, there is talk of U-864 with 67 tonnes of mercury in and around the wreckage being covered up or not, the establishment of an uncontrollable so-called "U-864 sea dump".

On 20 April 2020, the Norwegian Environmental Association reported Norway to the ESA (EFTA Surveillance Authority) for breach of the EU's Water Directive, the EU's storage regulations for mercury, breach of the OSPAR Convention for the North Sea Basin, and the Minamata Convention which deals with the treatment of Mercury.

Read the case about a complaint to ESA at

Read the complaint to ESA here

The expert committee for U-864 has received the complaint

Ever since the Expert Committee for U-864 was set up on 27 October 2020, NMF has worked to draw attention to which laws, regulations and the EEA Agreement's legal acts are being broken by establishing a "U-864 sea dump".

Read NMF demands that the expert committee for U-864 investigate cancellation

We have pointed to a number of legal offences: Violations of the water directive, the OSPAR convention where member states undertake to remove pollution from the marine environment and the Minamata convention which deals with pollution from mercury.

What is legal on land? 1999/31/EC - The Landfill Directive and 2008/98/EC - The Waste Directive come into effect, and the Norwegian authorities have implemented these directives through Chapter 9 of the Waste Regulations. Organic waste, liquid waste and explosives are not permitted to be stored in landfills on land. Liquid mercury must be stored in very special locations that are secured against any pollution to the surroundings, the control regime is extremely strict.

Read the case with an overview of which regulations are broken by a cover-up of U-864

The Water Directive does not apply to water, then the 1999/31/EC Landfill Directive applies, the same applies to 2008/98/EC – the Waste Directive. The mercury regulation has not been implemented in Norwegian law and law, but the waste regulation has incorporated stricter national regulation, both the landfill directive and the waste directive (chapter 9), which include mercury. The scope of application of the Water Regulations is the Pollution Act, the Pollution Regulations and the Ship Safety Act.

Mercury disposal in salt water is not regulated in the legislation

There is no separate "marine landfill directive" or "marine waste directive" with associated Norwegian regulations. One explanation could be that the business community does not want regulations and the politicians bow to the pressure. Here, there are large economic interests in, among other things, mining and farming. The Norwegian authorities see a different way. But the water directive is heavy enough in itself: Protect, Preserve, Improve. NMF has revealed that the Norwegian Water Regulations have not implemented the Water Directive correctly (compare §1 of the Water Regulations with Article 1 of the Water Directive), which is a breach of Article 7b of the EEA Agreement. For that reason, NMF consistently refers to the Water Directive.

The answer from ESA

NMF received a response from ESA on 30 October 2020, and that after NMF had pressured ESA to respond so that the Expert Committee would have a better basis and insight for its work.

The general answer was that ESA does not have a mandate to review the Norwegian authorities' decision on environmental measures (covering submarines and mercury), since they are probably not in breach of any EEA legislation. ESA's case managers are more concerned with finding errors that can be blamed on NMF, rather than concentrating on the actual violations. NMF's references to typical land directives are a deliberate act to compare with practice at sea. It is correct that the Mercury Ordinance has not been implemented, but it is of less interest as this also regulates land activities. We are left with the Water Directive and this will not be taken up by the ESA for assessment, they dare not.

Quote: Ómar Berg Rúnarsson ESA:
«The Directorate has not found sufficient elements in your inquiry demonstrating that the submarine wreck falls under the scope of or breached the requirements set by Directive 2008/98/EC on waste and repealing certain Directives or Directive 1999/31/EC on the landfill of waste.

The Directorate also notes that if the Norwegian authorities decide to cover the submarine wreck, it appears that the aim of such a decision is to mitigate the effects on the environment and appears to be based on numerous technical and expert reports. Therefore, the Directorate has not identified grounds for breach of Directive 2000/60/EC establishing a framework for Community in action in the field of water policy.

At last, the Directorate notes that in your inquiry you have referred to several sources which are not part of EEA law, such as the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), and eg Regulation ( EU) 2017/852 on mercury.

ESA, EU, OSPAR and Minamata have no authority

Unfortunately, there are no international organizations that have sanctioning authority, even if the member states break what they have signed up to. In addition, it is a waste to report environmental crimes such as storing mercury in seawater, for example, to the Norwegian Environment Agency, which has been weakened by the current government. One possibility is to go to court by presenting a case that the Water Regulations violate the Water Directive.

NMF believes that international actors who are supposed to look after the environment are too lax, and we are calling for a government body that can be stricter with countries like Norway, which apparently appears to be good at protecting the marine environment, but which proves the opposite on a daily basis.

ESA with little logical answer about Norway's choice of environmental solution

That large amounts of reports and investigations into cover-ups are a guarantee that the Norwegian authorities have done the right thing is incomprehensible to us. There are no reports that address the legal aspects! The NMF believes that the Norwegian Coastal Administration and the government have so far used resources to investigate the wrong direction, a cover-up. Work should have been initiated for lifting already in 2003, in that way the Water Directive's choice of direction would have been followed up with action.

The Water Directive directs in the direction of raising U-864.

NMF is of the clear opinion that the Water Directive is crystal clear that water quality must be improved and not worsened. Other Norwegian laws that may apply are: The Ship Safety Act (2007 - §1: "including preventing pollution from ships", see §2 second subsection f) and §49. Order on measures) but also the Pollution Act (1981) and the Pollution Regulations (2004).

The NMF's recommendation is to RAISE

Based on the legal acts of the EEA Agreement and Norwegian law and law, there is only one viable way, and that is to raise the wreckage and remove as much as possible of mixed waste (liquid mercury and ammunition) from the sediments. In connection with the work, contaminated mass will be stirred up and thus contribute to increased pollution in the short term, this must be accepted as an "acceptable footprint". The major environmental benefit lies in the reduced long-term environmental impact. It is not easy to predict all aspects of what may occur in connection with raising the U-864 wreckage, but with good planning and execution, Norway can show the world that we are a world leader in such underwater operations.

Ammunition does not pose a danger when U-864 is raised

There is no danger related to the handling of the ammunition, this has been confirmed in a report published by Forsvarsmateriel. Norway is a world leader in underwater technology and is at the forefront with regard to the application of BAT (Best Available Technology) and BEP (Best Environmental Practice). It is important for Norway's reputation to show that we take water bodies and human health seriously. Norway simply shows the direction and thus acts as a role model.

Elevation is best in the long run

The correct and legal course of action is to raise wreckage, remove as much liquid mercury and ammunition from the seabed as possible. Pick up, dig/suck up and raise the wreckage!

We are all responsible for following up the precautionary principle and not least consideration for the welfare of future generations, the family that inherits our waste. Leaching into the sea results in liquid mercury being transported between all media (sea-water-air and soil for several thousand years) - an eternal perspective. There is also a risk of chemical reactions between mercury and salt water (Methylmercury). It will be a success when 67 tonnes of liquid mercury can be removed from the sea. If there is any contamination from a lifting operation, - well, we did the best we could for the best for everyone. We must not accept that hazardous waste is left down there in the marine environment, as an eternal risk.

Read more on campaign page U-864

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