Environmental protectioni Air quality
The categories of industrial plants that may generate emissions with a material impact on the environment are subject to air emission permits.
Among these plants, the ones with the lower environmental impact must obtain an air emission permit pursuant to Article 269 of the Italian Environmental Code. This permit lasts 15 years, and it provides emission limits and monitoring requirements. In case of an infringement of the air emission permit, the competent authority may:
- order the operator to comply with it within a certain term;
- order the operator to comply with it within a certain term and suspend the operation of the plant if there is a threat towards public health or the environment; or
- revoke the air emission permit in case of an infringement of the orders under points (a) and (b) above or when multiple breaches of the permit endanger public health or the environment.
Also, criminal and administrative penalties are provided, depending on the gravity of the infringement of the permit.
Plants with a higher environmental impact are likely to fall within the IPPC system and therefore need an IPPC permit, which includes a section dedicated to air emissions. Under the IPPC system, the emission limits must be coherent with the emission levels associated with the best available technique, established at the EU level. As already highlighted in Section II, Member States are allowed to require stricter limits (gold plating), but a guideline issued by the Italian President of the Council of Ministries should prevent Italian authorities from doing so. IPPC permits can last up to 16 years. In the event of an infringement of an IPPC permit, the competent authority has the same powers as those granted by the Italian Environmental Code to the authorities for an infringement of an air emission permit (i.e., order to comply, suspend and revoke the permit, under the same conditions laid down for air emission permits). Moreover, criminal and administrative penalties are provided depending on the gravity of the infringement of the IPPC permit.ii Water quality
The mechanism for the granting of wastewater discharge permits is designed in a similar way to the system for the granting of air emission permits.
Plants with a lower environmental impact are subject to wastewater discharge permits, while bigger plants fall within the IPPC system.
As to the first regime, in the event of an infringement of a wastewater discharge permit, the competent authority may: (1) order the operator to comply with it within a certain term; (2) order the operator to comply with it within a certain term and suspend the operation of the plant if there is a threat towards public health or the environment; or (3) revoke the wastewater discharge permit in case of an infringement of the orders under point (1) and (2) above or when multiple breaches of the permit endanger public health or the environment. Also, criminal and administrative penalties are provided depending on the gravity of the infringement of the permit.
As to the second regime, as already noted in Section VI.i on air emissions, IPPC permits have to be aligned with the emission levels established at the EU level. IPPC permits can last up to 16 years. In the event of an infringement of an IPPC permit, the competent authority has the same powers as those granted by the Italian Environmental Code to the authorities for an infringement of a wastewater discharge permit (i.e., order to comply, suspend and revoke the permit under the same conditions laid down for wastewater discharge permits).
Moreover, criminal and administrative penalties are provided depending on the gravity of the infringement of the IPPC permit.iii Chemicals
The regime for chemicals that are hazardous to health and the environment is regulated at the EU level. To guarantee coherence in the manufacture, placement on the market and use of chemical substances, the EU adopted Regulation No. 1607/2006 concerning the registration, evaluation, authorisation and restriction of chemicals (the REACH Regulation) is – like every EU Regulation – directly applicable in all of the EU Member States, without the need to transpose it through national implementing legislation.
Under the REACH Regulation, the manufacture, placement on the market and use of certain substances, mixtures and articles may be subject to restrictions. Manufacturers, importers and downstream users are not allowed to use, or place on the market for use, substances referred to in Annex XIV of the REACH Regulation unless, inter alia, the use or placement on the market of the substances has been authorised in accordance with the regulation.
Pursuant to Article 68(1) of the REACH Regulation, where there exists an unacceptable risk to human health or the environment arising from the manufacture, use or placement on the market of substances that needs to be addressed on an EU-wide basis, Annex XVII of the REACH Regulation shall be amended by adopting new restrictions or strengthening the existing ones. Any such decision shall take into account the socio-economic impact of the restriction, including the availability of alternatives. In accordance with Article 69, such process is triggered by Member States or the European Commission and involves the EU Chemicals Agency. For a new restriction to be imposed it must be shown that: the manufacture, placement on the market or use of a substance on its own, or in a mixture or in an article, poses a risk to human health or the environment; and such risk is not adequately controlled and needs to be addressed at the EU level. The European Commission adopts the final decisions on proposals for restrictions submitted by Member States or the EU Chemicals Agency.
Authorities proposing a restriction are also requested to perform a socio-economic analysis aimed at demonstrating that the net benefits to human health and the environment of the proposed restriction outweigh the net costs to manufacturers, importers, downstream users, distributors, consumers and society as a whole. In addition, available information on alternative substances and techniques shall be provided, including information on: the risks to human health and the environment related to the manufacture or use of the alternatives; the availability of alternative substances, including the respective time scale; and their technical and economic feasibility.
The REACH Regulation also envisages an authorisation system aimed at monitoring the risks posed by substances of very high concern, which must be progressively replaced by suitable alternative substances or technologies to the extent that they are economically and technically viable.iv Solid and hazardous waste
Waste management is heavily regulated and infringements in this field often lead to criminal penalties. The generation, transport and disposal of waste is regulated by the Italian Environmental Code.
As a general rule, Article 188 of the Italian Environmental Code provides for the liability of the waste generator for the whole chain of treatment of the waste. Indeed, the generator must verify that the transporter and the subject in charge of the recycling or disposal of the waste possesses all of the necessary authorisations, and that the documents that need to be filled in to track each step of the waste management are duly drafted and managed. Recently, the Italian Supreme Court submitted a request for a preliminary ruling to the Court of Justice of the European Union on the interpretation of EU environmental law concerning the sampling, analysis and classification of waste. The preliminary ruling of the Court of Justice of the European Union will hopefully provide clarity on a matter that is crucial for the entire waste management system.
Every operator involved in waste management must provide the competent authority with adequate financial guarantees relating to compliance with applicable environmental laws. In particular, waste transportation, recycling and disposal, as well as the management of solid urban waste, are subject to financial guarantees.
For years, the Italian government has tried to switch from an inefficient waste-tracking system based on paper documents to an electronic tracking system, featuring GPS technology and a national database of the waste produced, transported and disposed of in the country (the SISTRI system). The entry into force of the new tracking system has been postponed several times owing to technical malfunctions, and in January 2019 definitively aborted. Currently, the paper-based system is still in place, and the Ministry of Environment is working on a new electronic waste-tracking system, hopefully simpler and more efficient than the SISTRI System.
With respect to the 'end of waste' procedure to recover waste, a recent ruling of the Council of State prohibited to governmental entities the possibility to authorise the end of waste recovery case by case. Instead, according to this ruling, end-of-waste recovery is only allowed when a statutory provision provides as such. Given that statutory provisions allowing for end-of-waste recovery cover few categories of waste, the ruling de facto significantly reduced the possibility to recover waste through this procedure. On 19 July 2018, the Ministry for the Environment declared to Parliament the government's intention to amend the Italian Environmental Code to reinstate the possibility for governmental authorities to authorise end-of-waste procedures on a case-by-case basis.v Contaminated land
The remediation of contaminated land and groundwater is based, in Italy and in the European Union, on the 'polluter pays' principle. In other words, the system is designed to impose remediation duties and costs on the polluter. If the polluter cannot be identified or fails to adopt the necessary measures, and neither the owner of the site nor any other interested party adopts those measures, they are to be adopted by the competent administrative authorities at the expense of the polluter. Innocent landowners may be required to reimburse the costs relating to the measures adopted by the competent authority that has remediated the site but only within the limits of the market value of the land, determined after the implementation of those measures. The owner or any other interested person may, however, intervene on a voluntary basis at any time in order to clean up the site that they own or use. The innocent landowner that has remediated the polluted site on a voluntary basis is entitled to bring an action for damages against the polluter in respect of costs incurred and any additional damage suffered.
In certain cases, in open contrast with the Italian Environmental Code, innocent landowners have been requested by public authorities to remediate their site when the polluter could not be identified or failed to adopt the necessary measures to remediate the pollution. Recently, a minority of the Italian case law has supported the legitimacy of this approach. However, the Plenary Assembly of the Italian Council of State (i.e., the highest administrative court, in charge of solving case law conflicts, whose ruling is binding for lower administrative courts) has upheld the principle according to which the innocent landowner cannot be required to remediate pollution that it has not caused. The plenary assembly had also requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on whether EU environmental principles must be interpreted as precluding national legislation:
. . . which, in cases where it is impossible to identify the polluter of a plot of land or to have that person adopt remedial measures, does not permit the competent authority to require the owner of the land (who is not responsible for the pollution) to adopt preventive and remedial measures, that person being required merely to reimburse the costs relating to the measures undertaken by the competent authority within the limit of the market value of the site, determined after those measures have been carried out.
The CJEU ruled that EU environmental law did not preclude such national legislation.
However, the consistency with EU law of the provision of the Italian Environmental Code, as interpreted by the Plenary Assembly of the Council of State, does not exclude per se that the CJEU might consider other interpretations of domestic law as compatible with EU law. The CJEU stated that Italian legislation, as interpreted by the Plenary Assembly of the Council of State to the effect that it is not legitimate to impose the duty to carry out remedial actions on innocent landowners, is compatible with EU law. However, the CJEU also pointed out that EU law allows Member States to adopt more stringent measures, including through the identification of additional responsible parties, provided that these measures are compatible with the Treaty on the European Union and the Treaty on the Functioning of the European Union. Indeed, in July 2017, the CJEU declared compatible with EU law a Hungarian piece of legislation establishing joint liability between the innocent owner of the land on which the pollution occurred and the polluter, without it being necessary to establish a causal link between the conduct of the owner and the damage established. Therefore, it could be argued that the minority opinion in current Italian case law (while in open contrast with the Italian Environmental Code) would also be compatible with EU environmental law.