Six years of local struggle to bring the Besòs incinerator to trial

BarcelonaThere are reasons to continue investigating whether the activity of the Besòs waste incinerator has polluted the air and harmed the health of the residents of the area between 2015 and 2019. With this argument, the Barcelona Court has decided to reopen the case against the Tersa plant for an alleged crime against natural resources and the environment. The case had been provisionally closed in May by Badalona's Investigating Court No. 5, considering that Tersa had not engaged in "any criminally unlawful conduct." Now, however, the Court concludes that the closing was "premature" and orders a trial to assess whether the plant incinerated urban waste at temperatures below 850 degrees—the only way to destroy pollutants without affecting the atmosphere—and whether it emitted chemicals harmful to human health.

The Court has fully upheld the appeal filed by the Public Prosecutor's Office and partially upheld the appeal filed by Airenet—which represents neighborhood associations and entities in Badalona, ​​​​Sant Adrià del Besòs, and Barcelona—and that of an individual. The three appeals emphasize that the plant's operations could pose a "serious risk to health" because the incinerator does not operate at the temperature required by law and because it uses a temperature-monitoring algorithm (T2s) that, according to the prosecution, is not comparable to the thermocouples endorsed by the Generalitat (Catalan government), which are direct measurement sensors on the wall. Tersa flatly denies this claim.

Tersa is a public company 58% owned by Barcelona City Council through Barcelona Municipal Services (BSM) and the Barcelona Metropolitan Area (AMB), and has a permit to incinerate up to 360,000 tons of non-recyclable urban waste annually. After six years of struggle, the Besòs neighborhood associations grouped together in the Airenet platform now see the possibility of taking the company to court closer. They view the reopening of the case as a triumph. "Today is a day of celebration for us," said its president, Silvina Frucella. Tersa, on the other hand, claimed it will continue to cooperate with the authorities, but maintained that the plant has the latest technology for proper environmental safety control and monitoring.

"Anomalies" to be verified

In the ruling to which ARA has had access, the Barcelona Court of Appeals does not share the conclusion of the 5th Examining Magistrate's Court of Barcelona, ​​​​which ruled that there was "not a single report that has allowed to establish that dioxins and furans [which permanently contaminate the environment] . According to the Court of Appeals, the expert reports and clarifications from the Seprona of the Civil Guard that were presented to the examining magistrate suggest that at Tersa "temperature variations occurred that could indicate a serious problem in the combustion process or in the temperature control system."

In this sense, the court states that there are "anomalies" when verifying whether the data provided by the company on the combustion of waste could be considered reliable, especially because in the opinion of the experts the results could be "modifiable, unlike a direct measurement with a thermocouple," or could be affected by the temperature. And it is added to the ruling that Seprona had already concluded that they could not determine whether the data through calculations based on the algorithm Tersa's measurements yielded the same results as a direct measurement using sensors. However, the incineration plant manager maintains at all times that the measurement system is "duly calibrated and certified by external and independent entities" and that it complies with all regulations.

The Court considers it necessary to resolve the issues raised by the Public Prosecutor's Office and the private prosecution. On the one hand, at certain times the temperature did not reach 850 degrees. On the other hand, maximum temperatures above 2,400 degrees (specifically 10,000 degrees) were observed starting in 2019 "which cannot be physically justified with commercial thermocouples." The ruling includes the explicit assessment of one of the experts, who stated that Tersa was "burning at physically impossible temperatures." It also notes that it was not possible to access the thermocouple records because, according to Tersa, "only records from the last six months were kept," and that Tersa only allowed the data to be compared for the duration of the entry and recording.

Case Background

The conflict over Tersa's activity and alleged polluting effects dates back to 2018, when Airenet reported the emission of harmful and carcinogenic chemicals and alleged irregularities in the plant's management following several studies by the Rovira i Virgili University (URV). These studies found that, between 1998 and 2017, the incinerator emitted "high levels" of harmful and carcinogenic chemicals "compared to other incinerators." Following the neighborhood complaint, and thanks to the collaboration of public company employees, Frucella alleges that "Tersa used an allegedly fraudulent information system to mask the plant's true working conditions."

Four years later, in 2022, the Prosecutor's Office ruled in favor of the neighborhood and environmental organizations and filed a complaint against Eloi Badia, then a city councilor and president of Tersa, and FR, the company's operations manager. Both were investigated during the investigation. The Public Prosecutor's Office maintains that the accused "consciously carried out or tolerated" a series of practices "contrary to environmental legislation" and that they posed "a serious risk" to the health of residents and the area's ecosystem in general.

What happens now with Eloi Badia?

Now that Badia is a member of Congress for Sumar and, therefore, has immunity, the case should be referred to the Supreme Court. However, Airenet does not believe that time constraints are an issue in this case. However, he has not yet formalized the charges against the former councilman and then-president of Tersa, as the investigating court must first issue the procedural adjustment order, as ordered by the High Court. According to judicial sources, when this occurs, the parties can formalize the charges and, depending on the defendants, the crimes, and the sentences sought, the case will proceed in one direction or another. If it is resolved in the Supreme Court, it will be resolved in a criminal court or in the High Court itself.