Before Going Through the Specific Issues One by One, We Would First Like to Give Some General

Before going through the specific issues one by one, we would first like to give some general comments on the 4th draft of the guidance document:

There is some significant progress with regards with the very first draft and we welcome that several of our comments have been taken on board. We especially appreciate that many of the sector’s characteristics and difficulties are recognized (section 2.1 and 3.1) along with the idea that NEEI activities can create a win-win situation for both industry and biodiversity conservation (section 3.3) (even though we consider that the last point could be more advocated through the guidance documents). The current draft is also well structured and more readable than the previous drafts.

However, we think that there is still potential for improvement as the guidance document, as it currently stands, lacks concrete elements that will facilitate permitting procedures. The document is indeed still too general and could apply to any other sector. Although the specificities of the sector are recognized in the guidance document, they are not sufficiently taken into account in various sections (such as the mineral and land use planning, the impact assessment etc).

Too much of the guidance focuses on the content of previous EC guidance document that were intended to applied to any sector. We think that - for this guidance document to have a real added value - it needs to further develop all the points of Article 6 around the specificities of the NEEI sector.

Also, we fear that the document still focuses and emphasizes too much on the negative impact of the extractive activities which render it quite unbalanced (see our comment on sections 3.2 & 3.3).

We would like to make some particular comments on specific paragraphs/sections of the Guidance document which are presented here below:

Issues of concern & proposed modifications

Section 1.1:

Please re-introduce the following paragraph: “The specific situation concerning NEEI and nature conservation, especially Natura 2000, must be considered in this regard. The restriction of extractive activities to the locations of natural mineral deposits, the potential unavoidable impact on natural habitats by certain extraction methods on the one hand and the limited time span of most mining activities and the possibility of restoration on the other hand are among the particular issues to be taken into account in this guidance document. “

Section 1.2:

We suggest that gypsumbe mentioned under “industrial minerals “in the group of “physical industrial minerals” and not under the term “construction minerals“. Indeed, even though the main market for end-use is the construction sector, gypsum cannot be used in the gypsum or cement industry without prior industrial processing. Therefore a classification as “industrial mineral” is much better and should be followed in the guidance.

We suggest that you also list pure silica under physical industrial minerals. In effect, there is a significant difference between sand in the quality of construction material (where sand is mentioned) and (pure silica) sand in its quality for industrial purposes. The same goes for plastic clays.

Moreover, the classification of the above-mentioned elements is of relevance especially concerning the situation assumed to be typical for the two different mineral types as written on page 10:

- … industrial minerals mining sector, where geological uniqueness and the potential to displace imported commodities and to export commodities to other countries within or outside the EU are very important factors in mineral planning … statement applies to gypsum, pure silica sand and plastic clays

- … large bulk mineral commodity sector (construction minerals including materials such as aggregates), where there are usually alternative sites with similar geological characteristics, and the markets are largely, though not totally, internal in the EU. ….statement does not apply to gypsum, pure silica sand and plastic clays

Section 2.1:

The previous draft of the guidance document contained in section 2.1 a paragraph that stated the importance of raw materials was deleted. Please insert back the following paragraph:

“Raw materials are essential to develop infrastructure and provide many industrial and consumer needs in modern societies. The main end-users of mineral raw materials are construction, chemicals, automotive, aerospace, machinery and equipment sectors that provide a total value added of 1,324 billion € and employment to about 30 million people”

The guidance document refers to the identification of critical raw materials set out in the raw material’s initiative. We strongly oppose the inclusion of the reference to the “critical raw materials” in these guidelines for the following reasons:

- a reference to critical raw materials is not of any relevance in this guidance document as all projects proposal should be viewed equally and put on the same footage. The Habitats Directive does not set any preferences as to which project should or should not undergo an appropriate assessment.

- In addition to that, there are different ways of defining the criticality of a raw material depending on what parameters are looked upon. Moreover, this item is yet to be further discussed under the raw material initiative before finalization.

- IMA-Europe already reacted to the raw material communication and our position regarding the critical raw materials identified is the following:

“It seems that [the approach proposed by the Commission] addresses short terms risk of a crisis linked to a short term lack of strategic raw materials. Indeed, some specific raw materials are strategic for some strategic industries such as electronic, defense and other sectors. It does not take into account the risk of long term shortage and very significant price increase that could be triggered by an excessive dependency of the European Union on import of those materials. One easy example could be given by Talc. Today, Europe imports some 90 000 tonnes of crude talc per annum from China. These products are mainly used as very white additives for paint and for plastic. They also help supplementing large quantities produced in Europe and serving very important markets such as Paint, plastics, etc. On a screening analysis, such as the one proposed for criticality, those quantities would not appear as critical. However, shortage of those may trigger severe economic problems for the paint, plastic, automotive, and other industries. Another example that one may think of is made of the clay for ceramics industry. Production of these materials occurs in Europe as well as in other countries. In theory there is no rapid risk of shortage. However, lack of European clays and obligation to import for the ceramic industries would create a competitive disadvantage for the European industry. A third example is the special type of Bauxite used for Abrasives and Refractory products. Again, it is unlikely that this special type of bauxite has occurred in the last two or three years leading to significant costs increase for the abrasive industry and therefore increasing the burden on the automotive and steel industry. One may multiply those examples. They all have in common that no analysis from the “strategic industries “ stand point would point them out as critical products that need a special treatment in the EU policy. Yet, a shortage of those may endanger some important pieces of European industries. Therefore it is proposed to extend the notion of criticality from “strategic products “ or short term criticality to long term criticality and short term criticality. “

Section 3.2 & 3.3:

The above mentioned sections are unbalanced as much more focus is put on the negative impacts than the positive impacts. The synthetic table showing all the negative impact gives a distorted impression of the sector as a hole especially when all the positive case studies are only shown in the Annex. Moreover, most of the listed impacts if not all of them are already covered by other environmental legislations and we should take as premise that the requirements under these existing legislations are fulfilled. Most of the significant negative impacts of the NEEI occur when the sites are not properly managed. We therefore request an additional paragraph reading "Most or All of the impacts shown in the table below are already mitigated by existing member states regulations that in turn take into account the mitigation to the danger to Biodiversity. Therefore this danger is already minimized in the EU member states". Enclosed you will find an example of such regulations in France (See here below or attached “Biodervisté.doc” file)

On the additional paragraph “Hydraulic disruption”, we believe that the inclusion of “possible exceptional floods" (the third paragraph) is inappropriate. The term isn't precise enough to represent correctly what the text wants to achieve.

On the additional paragraph “Noise and Vibrations”, the sentence starting with "incase of massive rock extraction, blasting is required", should read: "in case of massive rock extraction, blasting is sometimes required, etc. "

Section 4.1:

The integration of mineral resources and the protection of mineral resources should not only focus on rare deposits. We could not stress enough the importance of taking equally into account all minerals resources in land use planning. As you well know, mineral/ore deposits are where they are, i.e. in our soil sub surface. This has a lot of implications when in comes to land use planning and access to land as if the land under which the resource/deposit lays is allocated to housing or other land uses that would seal the soil, the access to the deposit would no longer be possible. As a consequence, this potential resource will cease to exist. Therefore, we would like the guidance document to recommend that mineral planning and the integration of (all) mineral resources in land use planning be viewed in the long term. As we have stressed in section 6.2 (see below), raw materials are essential to every aspect of our society (building infrastructure, transport systems, electronics, pharmaceutical products, water purification, waste treatment, paper, glass, to name just a few). We would like to underline this because even for resources for which - at the time being - there are alternative options (viewed here as alternative locations), the probability that this not be the case in the future is very high. Moreover, as suggested in our comment on Criticality, scarcity is not the only criterion that can make a mineral very important to a local economy. For example, some minerals cannot travel more than 50 to 100 km, just because the price / weight ratio does not allow it. For instance, nobody would claim that sand is scarce! However, freezing sand supply on a radius of 100 km could create a very difficult situation on said zone, just because it would severely increase the cost of building!

Finally, we would like to remove the reference to the fact mineral plan should focus on demand. We recognized that it is the current way of doing in some MS/regions, however we would like to stress that the demand pattern is very difficult to asses in the long term. Depending on the material extracted, markets can be local, regional, national or even international.

Section 4.2.2:

This section goes beyond the requirements of the Habitats Directive as Article 10 of the Directive states that MS shall, where they consider it necessary, encourage the management of features improving the ecological coherence of the Natura 20000 Network. Therefore, we suggest to replace the last sentence of the second paragraph by “MS are encouraged to consider these aspects when planning,…”

Also, it was agreed at the last meeting that terms such as “connectivity” that are not in the text of the Directive be deleted from the text in order to avoid misinterpretation. Indeed some may interpret the “connectivity” requirement as the need for all Natura 2000 sites to be physically connected by some ecological corridors etc… which is not what is required by the Directive. Therefore please replace in the text “connectivity” by “coherence”.

Figure 1: It was agreed at the last meeting to replace in figure one “maps of suitability” by “maps of potential conflicts”. It is indeed crucial that in the elaboration of mineral plans, potential extraction areas not be considered as a last resort.

Section 5.1/5.3:

It was agreed at the last meeting that a recommendation would be included in the guidance document to have – in the light of the need to streamline the administrative burden and speed up the permit process – the appropriate assessment and the EIA or SEA as part of a single process.

Section 5.2

The flowchart on page 22: the flowchart need to be revised as it is not coherent/readable.

The box “assess the implications of sites...” should e linked to “will the pp adversely affect integrity of the site”. For clarity, the box “assess the implications of sites...” should be located just above the box “will PP adversely affect” and not beside it.

Section 5.3

Page 24:”Nevertheless, AA of plans should avoid devolving decisions to the lower level, for instance by allowing development in plans on condition that site-level AA is carried out. Plan AAs should reduce the number of project AAs by avoiding significant effects in the first place.”

Whether or not the integrity of a Natura 2000 site is affected at the end of the day, can only be ascertained by detailed analysis of the habitat, the biotopes and the species. Therefore a strategic AA –if it sticks to its scope- cannot give definite answers. The answer, whether or not a Natura 2000 site is adversely affected, will often have to be found in the course of a project AA. The above quoted sentence might have the consequence that projects might not be carried out due to a negative strategic AA, which suffers from a lack of detailed analysis. The crucial point is, that strategic AA as well as project AA should stick to their scope and that the strategic AA does not ascertain facts that are beyond its level of detail and thus should be subject to project AA.

We therefore suggest that the sentence be deleted.

Section 5.5 & 6.3:

We consider that biodiversity offsets – being actions taken voluntarily by the project developer to compensate on any damage caused should be considered as mitigation measures and therefore included in section 5.5. We suggest therefore the re-introduce section 5.5. figure 4 as well as the following paragraph: “Voluntary offsets may be a useful last resort in mitigating residual impacts, but preference should be given to in situ offsets that are aligned with local, regional, national and international conservation strategies and goals and that bring a net positive benefit for biodiversity conservation. Voluntary offsets should aim to preserve the integrity of the site – so they must offer comparable habitat in the vicinity of the site.”

In some cases extremely good results have been achieved by temporarily moving habitats to a zone in the vicinity and moving them back at the end of the project. In France, Brittany, a very good project was achieved in preserving Drosera plant throughout the life of mine through a similar exercise.

Section 5.6:

We would like to stress once again the importance of having rehabilitation part of the project and part of the appropriate assessment (even for the rehabilitation that is done at the end of the extractive activity). Indeed, it is the end result that should be taken into account. If temporary impact occur before rehabilitating the site at a favourable status of conservation (and even better status of conservation than the original status as shown by the numerous examples), it is in both nature and industry interest that the project be carried out. Here enclosed is an interesting study of the contribution of limestone extraction to biodiversity. The full article can be accessed through

After the bullet points, the sentence "As regard compensation, these measures have to be implemented before the project starts, so restoration cannot be regarded as contributing to compensation", should be deleted as it goes beyond the requirement of the Habitats Directive. Actually, sound biodiversity plans can take place during the project and cannot necessarily be implemented before the start of the project. Some project like "woodland, heath land, etc " projects have contributed considerably to the protection of biodiversity, and could not have been implemented before the start of projects.

Section 6.1:

Please add at the end of the first paragraph: “When considering an alternative location of the extractive activity itself as an alternative solution, Competent Authorities must make sure that the alternative deposit is viable, economically exploitable and presents the same mineralogical characteristics (to supply to the appropriate market) as the one for which the permit demand was issued. This is especially important for the metal and industrial minerals’ industry as alternative deposits providing minerals with similar characteristics (i.e. to be provided to a certain market) can be rare.” As previously explained, another thing to keep in mind when considering alternative location as alternative solution is the relative cost of transport with regards to the price of the raw material. Indeed, many of the produced raw materials have a relatively low price which means that the supply to the downstream users can only be made locally or perhaps regionally. This is why in several industries, downstream production facilities are located close to the extraction site. There are several cases of downstream production manufacturers that had to be closed following the closure of the extraction sites.

Another element of high concern for us is the reference to the “zero option”.

Although we understand that “the zero option” to be considered as an alternative solution is stated in previous EC guidelines, we do not see the relevance of it. First of all, this statement is in contradiction with the definition of the alternative solution which is: ”different ways of achieving the objectives of a plan or project”. We do not see how the zero option could be an alternative way to reach the objectives of a plan or project. We therefore consider that the zero option cannot be an alternative solution and would like to have this sentence deleted. As a reminder, it was also discussed at the last meeting that because guidance documents are not of a binding nature, the content of this current guidance should stick to the ECJ rulings but not necessarily to all statements that are included in other guidance documents.