An extract from The Environment and Climate Change Law Review, 4th Edition
Environmental protectioni Air quality
The legal framework regarding air quality is set forth in Decree-Law No. 39/2018, which establishes the regime on prevention and control of pollutant emissions into the air and is applicable to:
- combustion installations with a rated thermal input ranging between 1MW and 50MW (medium combustion installations (MIC));
- complexes of new MIC;
- industrial activities in accordance to Annex I, Part 2;
- combustion installations that burn refinery fuel for the production of energy within oil and gas refineries; and
- furnaces and burners of industrial activities with a rated thermal input ranging between 1MW and 50MW.
According to this new legal regime, the APA shall issue an air emissions title for installations that are subject to the continuous monitoring of at least one pollutant. This title is integrated in and is part of the single environmental licence.
The emission limit values regarding emissions to air are set forth in Annex III of this legal regime.
Two new ministerial orders were published in 2018, further to the publication of Decree-Law No. 39/2018:
- Ministerial Order 190-A/2018, setting the height of chimneys and its calculation; and
- Ministerial Order 190-B/2018, setting the emission limit values for specific industrial sectors.
The following three ministerial orders were revoked in 2018:
- Ministerial Order 80/2006 (as amended), setting the minimum and maximum mass thresholds that define the monitoring conditions of emissions of pollutants to the atmosphere;
- Ministerial Order 675/2009 (as amended), setting the general emission limit values applicable to the majority of installations and establishments; and
- Ministerial Order 677/2009 (as amended), setting the emission limit values for combustion installations.
Monitoring obligations may be periodic or continuous. Whenever the mass flow emission is inferior or equal to maximum mass thresholds set forth in Part 1 of Annex II and above or equal to the average exceeds mass thresholds set forth in Part 1 of Annex II, monitoring will be periodic and must occur twice a year or, in certain particular situations, according to a different schedule. Continuous monitoring of atmospheric emissions is mandatory whenever the mass flow emission exceeds the maximum mass thresholds set forth in Part 1 of Annex II or whenever the licence or title for the functioning of the industrial establishment expressly determines that this type of monitoring must be carried out.
For combustion installations whose capacity is superior to 50MW, the applicable emission limit values are the ones set in the Industrial Emissions Regime, which enacted Directive 2010/75/EU.
The Industrial Emissions Regime contains the emission limit values regarding emissions to the air to be complied with in relation to combustion installations whose capacity is more than 50MW, installations that use organic solvents and issue organic volatile compounds and installations that produce titanium dioxide.
Decree-Law No. 39/2018 only applies to installations subject to the Industrial Emissions Regime on a subsidiary basis, regarding matters not regulated by said regime.
According to the polluter pays principle, an operator that causes damage to the environment through air pollution is under an obligation to pay compensation to the state and may also have to pay compensation to third parties under civil liability rules. The breach of this legal regime is an environmental misdemeanour, which can be considered light or serious depending on its gravity, and determines the payment of fines, along with possible ancillary penalties.
The General Inspector of IGAMAOT and the CCDR, whenever a situation of serious danger to the environment or to human health is at stake, may adopt the necessary measures to prevent or eliminate the danger situation, such as the suspension of activity, closing down of the totality or part of the installation or seizure of all or of part of the equipment.
Whenever the breach refers to emission limit values contained in an environmental licence issued under the Industrial Emissions Regime, an environmental misdemeanour will be at stake and fines will apply, alongside with possible ancillary penalties.
The environmental liability legal regime does not apply directly to damages caused to the air.
Finally, emission limit values for air emissions are considered to be quite strict and it is not rare for operators to have difficulties in complying with the applicable legal framework.ii Water quality
The Water Law (Law 58/2005), which enacted the EU Water Framework Directive (Directive 2000/60/EC) and the Water Use Legal Regime (Decree-Law 226-A/2007) are the two key legal regimes regarding water management, use and protection.
As regards quality standards, Decree-Law 236/98 establishes the rules, criteria and quality objectives with the purpose of protecting water quality. The annexes of this legal regime contain:
- the emission limit values to be observed in relation to the discharge of waste water to the water or to the soil taking into view their protection against pollution;
- the maximum values for the different parameters in water considering its use; and
- the environmental objectives for water resources.
Quality standards vary according to the type of water (surface water, groundwater, bathing water, fishing water, etc.) and to its purpose (e.g., human consumption). Annex XVIII contains the emission limit values for the discharge of wastewater.
These standards generally apply to all industries and activities and are in line with EU water quality standards set forth in EU Directives.
In relation to permits, the use of water resources and the occupation of the public hydric domain is subject to the previous obtainment of a water use title, which, depending on the type of use, can be a licence, a concession or an authorisation, issued by the APA, which is the National Water Authority. The discharge of wastewater is normally subject to a licence. In the case of industrial installations, subject to an environmental licence under the Industrial Emissions Regime, the use of water resources demands the separate obtainment of a water use title that will be annexed to the environmental licence.
According to the Water Law and to the Water Use Legal Regime, the following activities are prohibited:
- use of water resources without the necessary title. Deliberate dilution of wastewater so as to comply with emission limit value;
- discharge of sludge in superficial or in underground waters;
- immersion of waste in breach of the environmental objectives for the water bodies;
- abandonment or unauthorised discharge of radioactive waste in superficial, underground, transition, coastal and sea waters and in wastewater drainage systems; and
- according to Decree-Law 236/98, the direct discharge into groundwater of certain hazardous substances is also prohibited.
A new National Water Plan was published under Decree-Law 76/2016. This plan is foreseen in the Water Law and its purpose is to establish the strategic options of the national water policy to be implemented by the river basin management plans for the 2016–2021 period and by the associated specific measure programmes. Water management under this plan envisages three main objectives: the protection and recovery of the status of aquatic ecosystems and also land ecosystems and wetlands dependent therefrom, as regards water necessities; the promotion of a sustainable, balanced and equal use of water of a good-quality status, considering its various uses and its economic value, based on a long-term use of available water resources; and the mitigation of the effects of flood and droughts.
The contents of this new plan will most probably determine, in the short run, the stricter amendment of water quality standards to ensure that Portugal meets water quality standards set at the EU level.
Account should also be taken of the new legal regime on water quality for human consumption, published through Decree-Law 152/2017. This establishes new rules for water quality control techniques and defines new parameters. The frequency according to which the quality of the water intended for human consumption is controlled becomes flexible in certain situations, provided there is no risk for human health. Entities managing the water supply for human consumption may be exempted from certain rules of the water quality control programmes as long as risk assessments are made and approved by the Water and Waste Regulatory Authority. There will be strong emphasis on laboratories carrying out water tests to comply with internationally agreed procedures and to use validated methods. The mentioned entities will also be required to draft a plan for communication and response regarding water quality emergencies.
Decree-Law 152/2017 came into effect on 1 January 2018, and the rule on the mandatory plan for communicating emergency situations related to water quality came into effect on 1 January 2019.
As regards reuse of water, a new legal regime was recently published, addressing this issue for the first time. Decree-Law 119/2019 established the legal regime of production of water for reuse, obtained from the treatment of waste water, as well as its use.
The scope of this Decree-Law includes the reuse of water from domestic, urban and industrial waste water treatment plants (ETAR) for uses compatible with its quality, such as irrigation, landscape use, urban and industrial use.
A prior risk assessment regrading production and use of water for reuse, the issue of production and use licences, and requirements for water quality and monitoring are foreseen to ensure the safe reuse of water for human health and for the environment.
Finally, mechanisms to provide transparency and access to information are established as fundamental issues to ensure the confidence of users and of the general public regarding the safety of water reuse.
Additionally, Ministerial Order 266/2019 established the information and symbols to be used by producers and users of water for reuse, as well as the standardisation of the symbol for the identification of water for reuse, and the information to be available to the public and to employees who operate in the places of production and use of this type of water.iii Chemicals
Decree-Law 82/2003 (as amended) approved the Regulation on Classification, Labelling, Packaging and Safety Data Sheets of Dangerous Mixtures. According to the Regulation, the mixtures can only be placed on the market if they are classified, labelled or packaged under the terms of the Decree-Law and of the Regulation.
This Decree-Law also establishes the obligation to provide information to the Directorate General for Economic Activities, to the Poison Information Centre and to the National Institute for Medical Emergency, to be carried out by the person or entity responsible for the placement of the mixture in the market.
Decree-Law 98/2010 establishes the regime on Classification, Labelling, Packaging of Hazardous Substances for human health or the environment taking into view their placement in the market. This legal regime (1) transposes Directive 2006/121/EC to adapt it to the Council Regulation (EC) No. 1907/2006 of 18 December related to the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH Regulation); (2) guarantees the execution of Article 55 of Regulation EC 1272/2008 of 16 December regarding the classification, labelling and packaging of substances and mixtures (CLP Regulation); and (3) enacts, in part, Directive 2008/112/EC.
Further, Decree-Law 293/2009 ensures the implementation and execution of the obligations arising from REACH Regulation, which establishes a European Chemicals Agency and aims to ensure a high level of protection of human health and of the Environment, including the promotion of alternative methods for assessment of hazards of substances, as well as the free circulation of substances in the internal market while enhancing competitiveness and innovation.
REACH lays down some specific duties and obligations on manufacturers, importers and downstream users of substances on their own, in preparations and in articles. This Regulation is based on the principle that it is for manufacturers, importers and downstream users to ensure that they manufacture, place on the market and use such substances that do not adversely affect human health or the environment. Its provisions are underpinned by the precautionary principle.
REACH sets out procedures for the registration, evaluation, authorisation and restriction of chemicals, as follows.
The registration provisions should require manufacturers and importers to generate data on the substances they manufacture or import, to use said data to assess the risks related to these substances and to develop and recommend appropriate risk management measures. Registered substances should be allowed to circulate on the internal market.
The evaluation provisions should provide for follow-up to registration, by allowing for checks on whether registrations are in compliance with the requirements of REACH and if necessary by allowing for generation of more information on the properties of substances.
The authorisation provisions should ensure the good functioning of the internal market while assuring that the risks from substances of very high concern are properly controlled. For these purposes and to ensure that substances of very high concern are progressively replaced by suitable alternative substances or technologies, all manufacturers, importers and downstream users applying for authorisations shall analyse the availability of alternatives and consider their risks, and the technical and economic feasibility of substitution.
The restriction provisions should allow the manufacturing, placing on the market and use of substances presenting risks that need to be addressed, to be made subject to total or partial bans or other restrictions, based on an assessment of those risks. Manufacturers and importers are also obliged to register relevant information in a central database (the European Chemicals Agency).
REACH entered into force in 2007 and its provisions are being phased in over 11 years. As regards national requirements, according to the REACH Regulation, the person or entity responsible for the placement of dangerous substances in the market shall provide relevant information on those substances to the Poison Information Centre and to the National Institute for Medical Emergency, prior to placing them in the market; and make the relevant information on the substances classified as hazardous available to the IGAMAOT and to the Authority for Economic and Food Safety.
All permit applications must be complete and truthful and all permit requirements carefully followed. Required environmental controls and equipment shall not be neglected (except as allowed by and in compliance with the law).iv Solid and hazardous waste
The Waste Management Legal Regime (Decree-Law 73/2011 as amended) is the framework legal regime regarding waste management, applicable to both hazardous and non-hazardous waste.
Waste management activities are subject to a licensing procedure directed by the APA or by the CCDRs.
Whenever a waste management activity is carried out in installations included in the thresholds of Annex I of the Environmental Impact Assessment Legal Regime the licensing authority will be the APA. In all other situations, including soil decontamination operations, the licensing authority will be the CCDR. A specific licence will be issued in relation to the waste management activity (e.g., collection, transportation, recovery and elimination).
As regards waste elimination, operators of landfill sites must obtain an environmental licence according to the Industrial Emissions Regime, as well as two insurances: (1) insurance to cover closure and post-closure obligations; and (2) insurance to cover accidental pollution events. These operators must also have a fully paid up share capital of at least €250,000 (for inert waste landfills); and €1 million (for hazardous or non-hazardous waste landfills).
The elimination of hazardous waste in specific facilities is subject to an autonomous legal regime.
Further, operators that carry out the collection, transportation, recovery and elimination of hazardous waste must hold a financial guarantee to cover their environmental liability under the environmental liability regime.
As regards waste streams, a new legal regime named Unilex was published through Decree-Law 152-D/2017, setting new rules for the management of waste streams and enacting Directive 2015/720/EU on lightweight plastic carrier bags and Directives 2016/774/EU and 2017/2096/EU on end-of-life vehicles.
All the rules on the management of specific waste streams (packaging, used oils, used tyres, electrical and electronic equipment, batteries and accumulators, and end-of-life vehicles) have been grouped together in this new legal regime.
Individual and collective waste management systems are responsible for ensuring the appropriate treatment of waste to achieve Portugal's agreed recycling and recovery targets.
Decree-Law 152-D/2017 is intended to contribute to more sustainable production and consumption by empowering the different participants in a product's life cycle (production, marketing, consumption and waste management), reducing the amount of waste to be disposed of, using resources more efficiently, recovering raw materials with economic value and making managing procedures of these wastes more effective. This Decree-Law came into effect on 1 January 2018.
During 2018, new licences for various waste management entities responsible for specific waste streams were published and determine that all existing agreements entered into with waste producers or other entities must be reviewed to guarantee conformity with the new licences.
The most recent legislative initiatives on waste production prevention include, in 2019, Law 77/2019, on the ban of single-use plastics in the catering and/or beverage sector and in retail trade, Law 76/2019, on the ban of ultra-lightweight plastic bags and of plastic and polystyrene food containers at bread, fruit and vegetable points of sale, and Law 88/2019 on reducing the impact of cigarette and cigar ends or other cigarettes on the environment.v Contaminated land
Although this matter has been extensively discussed by various governments and by various sectors of society, Portugal does not have a specific legal regime for contaminated land. Whenever it is necessary to carry out soil decontamination operations they will be subject to previous licensing under the Waste Management Legal Regime by the CCDRs.
In 2011, the APA issued a non-binding guide regarding the assessment of imminent threat and environmental damage according to the Environmental Liability Regime (Decree-Law 147/2008). The guide contains a specific chapter on how to assess damage to soil and soil contamination situations, including prevention measures, risk analysis and repair and monitoring plans. The Ontario Rules for soil decontamination are the reference used to assess the level of contaminants in the soil.
During 2019, three new guides for contaminated soils were issued by APA: (1) Soil reference values; (2) Sampling Plan and Soil Monitoring Plan; and (3) Risk Analysis and Risk Acceptability Criteria; and are available on its website.
Landowners are not required by law to investigate and assess the contamination level of their property although regulatory authorities can order assessments and clean-up operations whenever a pollution or contamination event is verified or comes to their knowledge.
However, specific provisions are starting to be inserted in municipal zoning plans (e.g., the Lisbon Municipal Master Plan) to render mandatory a site risk assessment in relation to plots of land where, owing to past activities, it is considered likely that the soil is contaminated with hazardous substances to human health or the environment. In these cases, a mandatory decontamination plan must be drafted and executed to restore the environment to an acceptable status as determined by the competent authorities.
According to the polluter pays principle, the operator responsible for causing pollution or environmental damage is liable and must carry out and pay the costs associated to environmental damage and clean-up, adopting the necessary measures to prevent further threats and damage to the environment. However, where the owner of the land was not the polluter, if there is an imminent threat or serious danger to the environment, authorities can demand that the current owner carry out the environmental investigation and clean-up, including prevention and remediation measures. In these cases, the owner shall have a right of redress in relation to the liable party. Public authorities may also carry out the clean-up and decontamination operations directly with right of redress in relation to the liable party.
The majority of the environmental legal framework applicable to activities that are most likely to cause pollution demand operators to hold financial guarantees to cover their liability in relation to pollution events, including the Environmental Liability Regime. Whenever environmental damage is caused and this legal regime applies the operator must adopt prevention and remediation measures. If the operator does not have the capacity or know-how to carry out in situ decontamination, he or she may hire a specialised company to carry out the operation or, alternatively, remove the contaminated soil from the site or installation and deliver it to a duly licensed waste management operator. The failure to adopt prevention or remediation measures when directly determined by the APA is a very serious environmental misdemeanour. The failure to immediately adopt prevention or remediation measures, when an imminent threat or environmental damage occurs, is also a serious environmental misdemeanour.
In September 2015, the APA disclosed a legislative proposal regarding a legal regime for the prevention of soil contamination and for soil remediation, and launched a public hearing open to all citizens. At the time of writing, however, there has been no news from public authorities or from the Ministry of Environment and Climate Action regarding the approval of this proposal by the government.vi Environmental impact assessment
The environmental impact assessment legal regime underwent two amendments in 2017. First, Law 37/2017 rendered environmental impact assessment mandatory for all activities pertaining to the exploration of hydrocarbons. Second, Decree-Law 152-B/2017 enacted Directive 2014/52/EU on the assessment of the effects of certain public and private projects on the environment. The amendments introduced apply as of 1 January 2018.