university of padua faculty of engineering second cycle degree in environmental engineering...

UNIVERSITY OF PADUAFACULTY OF ENGINEERING

Second Cycle Degree in Environmental Engineering 2011-2012

INTERNATIONAL ENVIRONMENTAL LAW

REMEDIATION LAW

B&P [email protected]

www.buttiandpartners.com

INTRODUCTION

This lesson’s aim is to give an overview of the Italian Environmental Law on the remediation of contaminated sites, also referring to several Courts’ pronounces.

Such Law – initially introduced in 1997 (Delegated Legislative Decree no. 22/1997) – has been widely amended in 2006 (Delegated Legislative Decree no. 152/2006) and, more recently, in 2008 (Delegated Legislative Decree no. 4/2008).

Index

1. Italian Legislation on contaminated sites’ remediation: an overview;

2. Contaminated sites: remediation law and environmental liability in Italy;

3. 3. Two ECJ (European Court of Justice) Decisions of march 9, 2010 on environmental damage in remediation cases;

4. Recent changes in Italian remediation Law: Delegated Legislative Decree no. 4/2008;

5. Remediation Law in Practice: Questions, Answers and Courts’ Decisions.

1. Italian Legislation on Contaminated Sites’ Remediation: an Overview

A specific legislation on contaminated sites’ remediation was firstly introduced in 1997 (Legislative Decree no. 22/1997, Art. 17) and developed in 1999 (Ministerial Decree no. 471/1999): both hereinafter jointly named as the “Old Remediation Law”.

Implementing the Delegating Law no. 308/04, the Government approved in 2006 a new “Environmental Code” (Legislative Decree no. 152/2006), where a completely new regulation on Remediation of contaminated sites (hereinafter, named as the “New Remediation Law”) can be found.


Both the Old and the New Remediation Laws are based on the same principles:

• The “polluter”, rather than the site owner, is the party that is mainly responsible for the remediation;• The remediation must be carried out, whatever the date of the pollution was:• Only after the remediation plan is formally approved by the authorities, must the cleanup be implemented;• However, some urgent measures must be immediately implemented by both the polluter and the site owner, and with no need to wait for any authorities’ approvals.


Important differences between the Old and the New Remediation Law:

• The Old Remediation Law directly established strict cleanup targets, while the New Remediation Law calls for flexible, risk-based and site-specific criteria for the management of contaminated land;

• Furthermore, the New Remediation Law establishes specific criteria for cleanup in active operating sites.

More recently, the Government amended the New Remediation Law by approving, as referred to in Paragraph I, the new “corrective” Legislative Decree no. 4/2008, which partially restores some of the features of the Old Remediation Law.

Environmental Legislation and Main Relevant Environmental Principles in Italy: a short overview:

Most Italian Environmental Legislation can be found in the recent “Environmental Code” (Delegated Legislative Decree no. 152/2006, approved by the Government on the basis of the Delegating Law no. 308/2004 and in accordance with the guidelines provided for by the Parliament in such law). The main pieces of legislation that are still separated from the Environmental Code deal with:• Landfill Law (Legislative Decree no. 36/2003 and Ministerial Decree 3 August 2005);• Noise Pollution (Law no. 447/1995);• Integrated Pollution Prevention and Control (Delegated Legislative Decree no. 59/2005, Law no. 180/2007, as amended by Law no. 243/2007 and Law Decree no. 248/2007, as amended by Law no. 31/2008).

2. Contaminated sites: remediation law and environmental liability in Italy

Recently, the Delegated Legislative Decree no. 4/2008 has amended the Environmental Code. The revision has been possible (without a Parliamentary formal new Law) since it was expressly allowed by the original Delegating Law no. 308/2004, on the condition that:

• it would be approved within two years from the Code’s entering into effect (thus within april 29, 2008, having the Code entered into force april 29, 2006); and

• it would follow the guidelines provided for by the Parliament as per Delegating Law no. 308/2004.


The Directive 2004/35/Ce of the European Parliament and of the Council of 21 April 2004 on Environmental Liability with regard to the Prevention and Remedying of Environmental

Damage and its Implementation in Italy

The European Union has not yet provided exhaustive rules on contaminated sites cleanup, expressing a different approach than the one adopted for water, wastes, emissions and climate change.Actually, European Directive 2004/35/CE of the European Parliament and of the Council of the april 21 only sets up general principles concerning environmental liability, with regard to the prevention and remedying of environmental damage.The Directive introduces a “default” strict liability regime, that can be derogated by the Member States in favor of a fault-based system.


On any other issues, the Directive indicates mandatory minimal requirements, only granting Member States the possibility of providing for stricter conditions.

As a consequence, despite working under a common European guideline framework, every Member State has developed partially different rules for contaminated sites remediation.


Art. 1 lays down that the purpose of the Directive is to establish a framework of environmental liability based on the “polluter-pays” principle, to prevent and remedy environmental damage.Under the terms of the Directive, environmental damage is defined as:

• direct or indirect damage to species and natural habits protected at Community level by the 1979 “Birds” Directive or by the 1992 “Habitats” Directive;• direct or indirect damage to the aquatic environment, as covered by Community Water Management legislation;• direct or indirect contamination of the land which creates a significant risk to human health.



According to Art. 3, the Directive shall apply to:

• environmental damage caused by any of the occupational activities listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities (strict liability régime, that can be derogated by the member States, under Art. 8.4);

• damage to protected species and natural habitats caused by any occupational activities other than those listed in Annex III, and to any imminent threat of such damage occurring by reason of any of those activities, whenever the operator has been at fault or negligent.


The Directive provides for a certain number of exceptions, in which the casual link between the activity and the damage is excluded (Art. 4). The liability scheme does not apply in the case of:

1) armed conflict, civil war, insurrection, hostilities; 2) exceptional, inevitable and irresistible natural phenomenon;3) nuclear activities;4) pollution with diffuse sources;5) national defense, international security, civil protection;6) where certain international liability treaties apply.


According to Art. 5, in case of imminent threat of environmental damage, the competent authority, as designated by each Member State, shall require the operator (the potential polluter) to take preventive measures. The competent Authority shall then ensure that the operator complies with the Directive: it may issue a variety of orders to the operator, such as one requiring him to provide information or to take the necessary preventive measures, or to give him more precise instructions which are then to be followed. The operator shall inform the competent Authority in certain cases, not the least of which being where there is an ongoing imminent threat.If the operator fails to comply with its obligations under the Directive, can not be identified or is not required to bear the costs under the Directive, the competent Authority may take measures itself and recover the costs incurred at a later date.


When environmental damage has occurred, art. 6 establishes that the competent Authority shall require the relevant operator to take the necessary remedial measures.

The operator shall immediately take “all practicable steps”. Furthermore, he shall take remedial measures, subject to approval of the competent Authority, on the basis of the rules and principles set out in Annex II of the Directive.

The competent Authority shall ensure that the operator complies with the Directive. It may issue a variety of orders to the operator, and it may take measures itself.

Environmental damage may be remedied in different ways, depending on the type of damage:

• damage affecting the land: the Directive requires the land concerned to be decontaminated until there is no serious remaining risk of negative impact on human health;

• damage affecting water or protected species and natural habitats: the Directive aims to restore the environment to how it was before being damaged.

To determine remedial action, the operator makes proposals (on the basis of Annex II) to the Authority, which shall approve remedial measures taking into account the opinions of all the interested parties. In the case of widespread instances of environmental damage, the competent Authority shall decide what takes priority.


Being environmental liability based on the “polluter-pays” principle, under the terms of the Directive the costs of preventive and remedial measures shall be borne by the liable operator.

Where the competent authority has taken measures itself, it shall recover from the liable operator the costs it has incurred.

There are some exceptions to this general principle. An operator shall not be required to bear the cost of preventive and remedial actions when he can prove that the environmental damage or imminent threat of such damage was caused by:

• compulsory order via the public authority;• third party intervention despite safety measures.


The competent authority shall be entitled to initiate cost recovery proceedings against the operator and, if appropriate, against a third party who has caused the damage or the imminent threat of damage, within five years from the date in which:

- measures had been completed; - the liable operator, or third party, had been identified.


According to Art. 12, observations and request for action may be submitted to the Competent Authority by:-those who are affected or are likely to be affected by environmental damage; and- if they have a “sufficient interest” in the environmental decision-making process, as it relates to the damage; and- if they allege the “impairment of a right”.

-What actually constitutes a “sufficient interest” and an “impairment of a right”, shall be determined by the Member States. Environmental NGOs meeting requirements under national law shall be deemed to have satisfied these conditions.


According to Art. 14, States shall take measures to encourage the development of financial security instruments and markets, with the aim of enabling operators to use financial guarantees to cover their responsibilities under the Directive.

October 12, 2010, the Commission adopted a Report on the effectiveness of the EU Environmental Liability Directive in terms of remediation of environmental damage and on the availability of financial security to cover environmental liability.


Cooperation between member states is encouraged.

Where environmental damage affects or is likely to affect several Member States, such Member States shall cooperate, in order to ensure that preventive and, where necessary, remedial actions are taken.

When environmental damage has already occurred, the Member State in whose territory the damage originates, shall provide sufficient information to the potentially affected Member States.


Member States are allowed to maintain or adopt stricter measures, in relation to the prevention and remedying of environmental damage.

The Directive grants them the possibility to adopt appropriate measures, such as the prohibition of double recovery of costs, where double recovery would occur as a result of concurrent action via the competent authority and the party affected by environmental damage.


As for the temporal application of these rules, Art. 17 establishes that the Directive shall not apply to:

• damage caused by an emission, event or incident that took place before 30 April 2007;

• damage caused by an emission, event or incident which takes place subsequent to 30 April 2007 when it derives from a specific activity that took place and finished before said date;

• damage, if more than 30 years have passed since the emission, event or incident occurred.


Member States shall report to the Commission on the experience gained in the application of this Directive by 30 April 2013. The reports shall include the information and data, as set out in Annex VI.

Based on the abovementioned reports, the Commission shall submit a report to the European Parliament and to the Council before 30 April 2014, which shall include any appropriate proposals for amendment.

Member States should have brought into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 April 2007.


Directive’s implementation: The long delay in transposing the Directive in several Member States means that little practical experience is available yet on its implementation.

By the end of 2011, experience is in general still limited to few cases with some exceptions (for instance Poland). However, several Member States such as Germany, Greece, Poland, Portugal, Spain and UK are actively engaged in establishing guidelines, tools and methods to enable good functioning of the ELD and in monitoring its functioning.


In order to address the weaknesses of the Directive identified in the abovementioned Commission’s Report of October 2010, the Commission will carry out studies, launch information campaigns and induce training measures in 2012. In this context, the Commission recently organised a Stakeholder and Practitioner Workshop on the implementation of the ELD on 8 November 2011 in Brussels.


3. Two ECJ (European Court of Justice) decisions of 9 March 2010 on Environmental

Damage in Remediation Cases

JUDGMENT OF THE COURT (Grand Chamber)9 March 2010

In Joined Cases C‑379/08 and C‑380/08,

Articles 7 and 11(4) of Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage, in conjunction with Annex II to the directive, must be interpreted as permitting the competent authority to alter substantially measures for remedying environmental damage which were chosen at the conclusion of a procedure carried out on a consultative basis with the operators concerned and which have already implemented or begun to be put into effect.

However, in order to adopt such a decision, that authority:

– is required to give the operators…the opportunity to be heard, except where the urgency…requires immediate action on the part of the authority; – is required to invite, inter alia, the persons on whose land those measures are to be carried out to submit their observations and to take them into account; and – must take account of the criteria set out in Section 1.3.1. of Annex II to Directive 2004/35;



- state in its decision the grounds on which its choice is based, and, where appropriate, the grounds which justify the fact that there was no need for a detailed examination in the light of those criteria, or that it was not possible to carry out such an examination due, for example, to the urgency of the environmental situation.



Directive 2004/35 does not preclude national legislation which permits the competent authority to make the exercise by operators…of the right to use their land subject to the condition that they carry out the works required by the authority, even though that land is not affected by those measures because it has already been decontaminated or has never been polluted.

However, such a measure must be justified by the objective of preventing a deterioration of the environmental situation in the area in which those measures are implemented or, pursuant to the precautionary principle, by the objective of preventing…further environmental damage on the land belonging to the operators which is adjacent (…).



JUDGMENT OF THE COURT (Grand Chamber)9 March 2010

In Case C‑378/08



Where, in a situation entailing environmental pollution, the conditions for the application ratione temporis and/or ratione materiæ of Directive 2004/35/EC …are not met, such a situation is governed by national law, in compliance with the rules of the Treaty, and without prejudice to other secondary legislation.

Directive 2004/35 does not preclude national legislation, which allows the competent authority acting within the framework of the directive, to operate on the presumption …that there is a causal link between operators and the pollution (…).

However, in accordance with the ‘polluter pays’ principle, … the authority must have plausible evidence capable of justifying its presumption, such as the fact that the operator’s installation is located close to the pollution found and that there is a correlation between the pollutants identified and the substances used by the operator in connection with his activities.



Articles 3(1), 4(5) and 11(2) of Directive 2004/35 must be interpreted as meaning that, when deciding to impose measures for remedying environmental damage on operators whose activities fall within Annex III to the directive, the competent authority is not required to establish fault, negligence or intent on the part of operators whose activities are held to be responsible for the environmental damage.

…Authority must, first, carry out a prior investigation into the origin of the pollution found, and it has a discretion as to the procedures, means to be employed and length of such an investigation.

Second, the authority is required to establish, in accordance with national rules on evidence, a causal link between the activities of the operators at whom the remedial measures are directed and the pollution.



4. Recent changes in Italian remediation Law: Delegated Legislative Decree no. 4/2008

Italian Environmental Code of 2006, in order to respect the Constitution (Art. 76), must be compliant with its Enabling Law (no. 308/2004). Said Law stated that the remediation targets should be identified mostly by means of risk analysis.The Environmental Code applied such criteria, by introducing a system based on two different sets of limit-values:

-threshold concentration levels as directly set forth by the law (“CSC: concentrazioni soglia di contaminazione”);

- remediation targets identified on a case by case basis, through risk analysis (“CSR: concentrazioni soglia di rischio”).

Thus, the Environmental Code of 2006 ceased to directly indicate the remediation targets (this was the legal system, under the old Legislative Decree no. 22/1997).

Risk analysis is today fundamental. However, equally fundamental are the criteria, as indicated by Annex IV of Title V, Part IV of the Environmental Code, under which risk analysis has to be implemented.

The described legal system has been partially, but in this regard substantially, modified by recent Delegated Legislative Decree no. 4/2008. The new rules introduced in 2008 restore some features of the previous legislation.



Main modifications introduced by the Delegated Legislative Decree no. 4/2008:

• When the groundwater is contaminated, the remediation targets (CSR) are legally declared as being equivalent to the threshold concentration levels, as directly set forth by the law (CSC). This way, risk analysis is no longer necessary, in order to identify how the cleanup is to be implemented. Many authors consider such a change inconsistent with the guidelines provided for by the Parliament in Enabling Law no. 308/2004 and consequently with Art. 76 of the Italian Constitution [1].

[1] Constitution, Art. 76: “Legislative power may not be delegated to the government, unless parliament specifies principles and criteria of guidance, …”.

• The point in which, after the remediation, the groundwater must meet the remediation targets has been made closer to the source of the pollution;

• Risk analysis implementation is still necessary for the identification of the remediation targets, in case the soil or subsoil is contaminated. However, under Legislative Decree no. 4/2008, risk analysis criteria have been made stricter with regard to the calculation of carcinogenic risk (for both single carcinogenic compounds and the cumulative risk of all compounds).


a)When is a site legally “contaminated”? Art. 242(2) and 242(3) of the Env. Code of 2006 : if, in a specific site, soil or groundwater exceed the threshold concentration levels directly set forth by the law (“CSC: concentrazioni soglia di contaminazione”), a site-specific risk analysis must be carried out in order to identify the remediation targets (“CSR: concentrazioni soglia di rischio”).

A site is:“potentially contaminated” when CSC (threshold concentration levels) are not met and the site specific risk analysis is still to be carried out;“contaminated” when also CSR (remediation targets) are not met;“not contaminated” when CSC are met or, if they are exceeded, the site specific risk analysis has been carried out and the thusly identified CSR have been met.

5. Remediation Law in Practice: Questions, Answers and Courts’ Decisions


COURTS’ DECISIONS

Administrative Regional Court of Lombardia, no. 5289/2007:“Only when the remediation targets identified by means of risk analysis are not met, is a site legally ‘contaminated’ ”.

Administrative Regional Court of Lombardia, no. 5355/2007:“Delegated Legislative Decree no. 152/2006 fixes two different sets of limit-value: threshold concentration levels directly set forth by the law (“CSC: concentrazioni soglia di contaminazione”) and remediation targets identified case by case by means of risk analysis (“CSR: concentrazioni soglia di rischio”). The site is contaminated only if and only if CSR are exceeded, whereas it is «potentially contaminated» if CSC are not met”.

b) When does the duty to investigate land for contamination and to disclose the situation to the Authorities arise? For the person who is responsible for the (actual or possible) contamination, the duty to investigate – together with the duty to disclose the situation to the Authorities – arises when evidence exists that the CSC are not respected or might not be respected, due to an ongoing or previous event.


COURTS’ DECISIONS:

Criminal Supreme Court, 2007, no. 9794/2007: “Having removed the abandoned waste, in the event of discovering that the threshold concentration levels set forth by the law are exceeded, it then becomes necessary to investigate the land, to establish whether remediation has to be carried out or not”.


c) In case of a site emerging as being legally “contaminated”, are the disclosure to the authorities, the implementation of preventive and emergency measures and the remediation always mandatory? Disclosure to the authorities is mandatory for both the responsible operator and the irresponsible site owner. Its omission is a specific crime only when committed by the person who is responsible for the contamination. Disclosure to the Authorities is necessary also in the light of previous contamination emerging. The implementation of preventive and emergency measures is mandatory for the responsible party. The irresponsible site owner must carry out only the preventive measures.The remediation is mandatory only for the responsible party and only when the CSR – identified by means of a site specific risk analysis – are not met. In such case, the party must prepare a remediation plan, have it approved by the Authorities and implement the remediation within a fixed date and under the Authorities’ supervision.


COURTS’ DECISIONS

Supreme Administrative Court, no. 5283/2007: “The rules of the Delegated Legislative Decree no. 22/97 (Old Remediation Law) have to be applied to every site that is found to be contaminated, regardless of the moment in which the event/s that caused the contamination took place”. Administrative Regional Court of Veneto, no. 5289/2007: “Remediation can not be required to the irresponsible site owner. However, this party can be ordered to carry out emergency measures”.Supreme Administrative Court no. 3971/2002: “Local authorities can verify the site owner’s compliance to Remediation Law, but they can’t impose general and undetermined remedial activities on the irresponsible site owner”.Supreme Administrative Court, no. 4718/2007 (strict approach towards the non responsible site owner): “The order to carry out emergency measures is not a sanction. Consequently it doesn’t depend on the identification of the responsible party: such an order can be addressed to the site owner even if the contamination hadn’t been caused by his fault or negligence”.

d) In such a case, how are the remediation targets identified? Do the remediation costs influence such identification?If, in a specific site, soil or groundwater exceed the threshold concentration levels directly set forth by the law (“CSC”), a site-specific risk analysis is normally to be carried out by the responsible party, in order to identify the remediation targets (“CSR”). Exceptions:

• Where remediation also/only involves groundwater, CSR are legally declared as being equivalent to the correspondent threshold concentration levels, as directly set forth by the law (CSC);• Where remediation is of “little dimension”, the responsible party can consider the soil remediation targets as being equivalent to the threshold concentration levels directly set forth by the law (CSC), without needing to implement a site specific risk analysis.


Both the Old and New Remediation Laws state that remediation measures must meet the concept of BATNEEC (Best Available Techniques not Entailing Excessive Costs), as defined by Directive no. 96/61/IPPC on Integrated Pollution Prevention and Control, now “codified” within new Directive no. 2008/1/CE.

COURTS’ DECISIONS Adrministrative Regional Court of Lombardia, no. 5289/2007: “The remediation measures must be identified by carefully assessing the site-specific situation, by means of a cost-benefit analysis”. Adrministrative Regional Court of Sardegna, no. 1809/2007: “The implementation of emergency measures shall be ordered taking into account a cost-benefit analysis: a very onerous solution requires a deep previous investigation”.



e) In such a case, who is the person obliged, under the law, to carry out the remediation (the polluter, the present owner or both and in this last case under which specific liability rules?)The person obliged, under the law, to carry out the remediation is the polluter. However, in case said person is not found or does not carry out the remediation, the public authorities are obliged to clean up the site, then having the possibility to sue the present site owner in order to get the money back, within the limits of the site value.

COURTS’ DECISIONS

Adrministrative Regional Court of Sicilia, no. 1254/2007:“In case it is not possible to identify the polluter, the public authorities must carry out the remediation; they can then recover from the irresponsible site owner the costs they have incurred in, within the limits of the site value or of its increased value”.


f) Are the preventive and emergency measures (e.g.: urgent pump and treat of contaminated groundwater) ruled in a different way?Yes. The New Remediation Law clearly imposes also on the site owner the duty to carry out the so-called “preventive measures”, defined as the “measures that are necessary in order to face an event that created an urgent threat to human health or to the environment”. Of course the site owner – if not responsible for the contamination – can sue the polluter in order to get the money back.

COURTS’ DECISIONS

Adrministrative Regional Court of Lombardia, no. 5289/2007:“The Authorities cannot force the site owner – that is not the polluter – to carry out the remediation (i.e. to reach an overall reduction of the pollution). However, the site owner can be forced to carry out preventive measures, when and only when an urgent need occurs to rapidly act in order to prevent an extension of the existing contamination”.


g) How is liability distributed when there is more than one polluter?Recently, the Delegated Legislative Decree no. 4/2008 seems to have formally introduced a principle under which polluters should pay in proportion to their negative contribution to the contamination (proportionate liability). Previously, however, different Courts had reached different conclusions on this important issue.

COURTS’ DECISIONS

Adrministrative Regional Court of Friuli Venezia Giulia, no. 488/2001:“The public authorities should have precisely identified all the polluters and their specific contribution, in order to identify the proportion of their responsibilities”.

Adrministrative Regional Court of Veneto, no. 2174/2005:“The order from a public authority to carry out the remediation is not unlawful, even if directed only to part of the polluters”.

h) How can the remediation procedure (environmental analysis, remediation plan, remedial actions, authorities role) be briefly described?

When an ongoing or previous contamination has been discovered, the following activities are to be implemented under the New Remediation Law:

• In presence of an actual risk of the contamination becoming heavier, within 24 hours the necessary urgent measures are to be carried out and the Province, Region and “Prefetto” (Province Chief Officer) are to be informed, in accordance with the procedure indicated in Art. 304.2 of the Delegated Legislative Decree no. 152/2006;

• If there is such a risk, an immediate notice is to be given to the Municipality and the Province, indicating the already implemented emergency measures;


• In any case, an investigation plan (“piano della caratterizzazione”) should be prepared within 30 days;

• After the investigation plan approval has been given, the complete investigation is to be carried out and then the risk analysis and the remediation plan are to be prepared;

• After the approval of the remediation plan, the cleanup must be completed within the date indicated by the authorities.


COURTS’ DECISIONS

Adrministrative Regional Court of Sicilia, no. 1254/2007: “The order from a local administrative authority to present a definitive remediation plan within 30 days violates the remediation procedure as established by Delegated Legislative Decree no. 152/2006, according to which an investigation plan should have been prepared, followed by the determination – on a case by case bases via risk analysis - of the specific remediation targets”.

i) Can the age in which the pollution was caused change the present liability régime?No, according the interpretation of the Italian remediation law given by the AdministrativeCourts. The temporal application régime provided for by Directive 2004/35/CE on environmental liability has not been accepted by the Italian law and Courts. This is not a breach of the Directive, as it does not prevent Member States from maintaining or enacting more stringent provisions in relation to the prevention and remedying of environmental damage.

COURTS’ DECISIONS

Supreme Administrative Court, no. 5283/2007: “The Italian (Old and New) Remediation Law also applies to sites where the pollution had been caused in the past. Thus, the remediation must be carried out whenever the pollution has taken place”.


l) Can the fact that the polluting activity in the distant past operated within the law and in compliance with the relevant permits change the present liability régime?Such a fact could be very relevant, in order to exclude eventual criminal liability for the previously caused pollution.However – under the decision of Italian administrative Courts – this would not exclude the duty of the responsible party to cleanup.Nevertheless, whereas the Old Remediation Law was very clear on this issue, the New Remediation Law does not expressly repeat that the duty to clean up applies also to those who had polluted without violating the existing law[2]. Although some Authors have tried to underline the abovementioned change in the law, such a change should not be overrated. In fact, not only when a specific article of law is violated, but also when the “Best Available Techniques” are not respected, does the Italian legal system consider a type of behaviour to be faulty.



COURTS’ DECISIONS

Adrministrative Regional Court of Lombardia, no. 1913/2007:

“In the case of two companies merging, the new company acquires the same rights and obligations as the old one; but, with regard to the duty to clean up the site, the old company can not be considered obliged if the contemporary law had not established such a duty. The absence of retroactivity is also affirmed in Directive no. 2004/35/CE on environmental damage”.

m) How is cleanup enforced? Where the responsible party is not found or neither such person nor the site owner carries out the remediation, the Authorities are obliged to clean up the site, subsequently having the possibility to sue:- the responsible party (if known) for the entire sum;- the present site owner, within the limits of the site value.

The implementation of the abovementioned rule is difficult, due to the extension of the contaminated land, the high cost of the remediation and the limited amount of available public resources. For such a reason the law provides for:- A specific crime, where the polluter does not carry out the remediation under the required terms. However, such a crime does not always work as an effective deterrent because: i) under our law, criminal liability applies, for these kinds of crimes, to people, rather than to companies. Thus, simply by changing the top government within a company, it become possible to avoid criminal liability. ii) Vague and inconstant case law regarding this issue.



- Special rules for a number of contaminated sites where it is necessary to rapidly complete the remediation, in order to implement a specific and important plan of industrial development.

COURTS’ DECISIONS Criminal Supreme Court , no. 1783 /2000 (referred to Old Remediation Law): “Where the polluter does not carry out the remediation, they are criminally liable despite the lack of an effective damage, caused by their inaction”. Criminal Supreme Court, no. 9794/2007 (referred to New Remediation Law):“Under New Remediation Law, criminal liability exists only when pollution occurs (not just in case of risk of possible pollution), and pollution is assumed to exist when CSC are not met”.

n) Which limitations exist in the use of a contaminated site? Which limitations exist as regards to the rights on a contaminated site? Can any limitations in land use persist after the remediation?In a contaminated site:• the competent authorities do not allow a new edifice to be built before the remediation has been completed;• where there are reasonable health concerns, specific use limitations (i.e. a ban on farming activities) can be ordered.In such situations, though the rights on the contaminated are not formally affected, the possibility to use the site is in practice highly reduced. In some cases, investigation and control duties persist even after the end of the remediation.


This:• can happen when the CSR are met but the CSC are not, thus making the site “potentially contaminated”;• must happen when – faced with an ongoing industrial activity – only a “messa in sicurezza operativa” (operating safe-setting) is implemented, as allowed by Art. 240.1.n of the Delegated Legislative Decree no. 152/2006.

COURTS’ DECISIONS

Adrministrative Regional Court of Puglia, no. 2248/2007:“The ban of excavation in a contaminated site is unreasonable, because it violates the proportionality principle, according to which the extent of the administrative orders must be consistent with the aim pursued”.


o) Which legal actions are available to the purchaser of a contaminated site? Legal actions are different, depending on the context.In certain cases, a contractual action can be carried out. A general warranty exists, subject to a very short expiration term (one year).

Where the “dolo” (intention) of the seller can be proved, the expiration term of the contractual action extends to five years.

Where a specific warranty is inserted in the contract, or where the transferred site is completely unusable due to the contamination (“aliud pro alio”), the expiration term of the contractual action extends to ten years, but such an action does not seem to be possible when, by means of a complete remediation, the site can be returned to its original use.


In other situations, mainly when the seller is also the polluter, the responsible party can be sued on a non-contractual basis. In such cases, there is a five year expiration term.

All such expiration terms do not apply to the by-law through which the authorities can (and should) impose the remediation on the polluter.

All in all, the identification of the legal actions available for the purchaser of a contaminated site must be carefully conducted on a case by case basis. It is not possible to present a short overview of the innumerable Courts’ decisions on this issue.


p) When a contaminated site is implied, what are the different implications, from an environmental point of view, of a share sale and of an asset purchase?

A share sale normally does not impose on the purchaser the same level of liability that is transferred when an asset purchase occurs. It is not possible to present a short overview of the innumerable Courts’ decisions on this issue.



q) Where can the technical Guidelines for risk analysis be found?Guidelines for site-specific risk analysis are set forth directly by the Env. Code. On some issues (e.g. mathematical models for calculating risk and criteria for identifying the exact point where the groundwater remediation targets must be met) the relevant guidelines were originally less strict than the ones normally suggested by the Italian technical agency (APAT).

Recently, however, Legislative Decree no. 4/2008 – by modifying the above mentioned Annex I of the Env. Code – made the Guidelines stricter and compliant with those issued by the Italian technical agency. Risk analysis criteria are normally a critical point of discussion between the companies and the authorities.In sites where an industrial activity is being carried out, the remediation can be partially delayed, if it disturbs such activity. In such cases, only the specific emergency safety measures (“Messa in Sicurezza Operativa”) must be immediately carried out.


r) How does Remediation Law take into account the Productive Development Need of Industrial Sites?

New “Art. 252-bis” of the Delegated Legislative Decree no. 152/2006 – introduced by the Delegated Legislative Decree no. 4/2008 – provides special rules for a number of contaminated sites where there is a prevailing public interest in a strong productive development.

On such sites, a negotiation takes place among the owner and/or manager of the site, the Ministry for the Environment and the Ministry for the Economic Development, in order to identify the best solution and to support both the remediation and the industrial development.


s) What can be said about the legal discipline of the remediation procedures that began under the Old Remediation Law and were still in progress when the New Remediation Law entered into force (29 April 2006)?If no remediation plan was approved under the Old Remediation Law, the procedure would have to go on under the New Remediation Law. If a remediation plan had been approved under the Old Remediation Law, the interested party could have asked (up to October 2006) for the permission to change the plan, in order to follow the new rules. If such a party had not asked for this, the procedure would continue according to the old rules.

COURTS’ DECISIONS

Administrative Regional Court of Sicilia, no. 200/2008: “If an interested party asked (up to October 2006) to change the plan, in order to follow the new rules, only in the case of the exposed documentation being technically inadequate, could the authorities answer negatively”.

- SOURCES -

- Legislative Decree no. 152/2006, present text (as amended by Legislative Decree no. 4/2008):Articles from 1 to 3-sexiesArticles from 239 to 253Article 257Articles from 264 to 266Annexes 1, 2, 3, 4, 5 of Title V of Part IV

- APAT Manual No. 43/2006 for environmental investigations into contaminated sites: n.b. Manual can be downloaded from the following web site:http://www.apat.gov.it/site/_contentfiles/00144700/144784_Manuale_2006_43.pdf ;

- Main cases:ECJ: JUDGMENT OF THE COURT (Grand Chamber) march 9 2010, in Joined Cases C‑379/08 and C‑380/08 and march 9 2010, in Case C‑378/08.

Thank you for your attention

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