Directive 2008/98/EC of the European Parliament and of the Council, dated 19th November 2008, which sets out the legal framework for the prevention and management of waste, has recently been implemented into our domestic legislation through the Waste and Contaminated Soils Act 22/2011, of 28th July.
Act 22/2011, that came into force on 30th July 2011, replaces the previous piece of legislation in force, the Waste Act 10/1998, of 21st April.
The objectives of this new law are to adapt domestic legislation to EC legislation on matters concerning waste, and to bring up to date and improve the legal regulations on the issues of waste production and management, promoting the introduction of measures for the prevention, re-utilisation and recycling of waste.
With regard to the regulation of contaminated soils, under Heading V of the new Act, the current set of regulations are maintained, with certain aspects being qualified in respect of determining the parties responsible for the decontamination of the soil, regulating the obligations of the persons responsible for potentially contaminating activities to provide information and of the owners of the contaminated soils, and the creation of a national inventory of contaminated land.
The modifications introduced under this Act are the following:
Firstly, and regarding the obligation to provide information on the part of the persons responsible for potentially contaminating activities, which are approved and published by the Government, these persons are obliged to regularly inform the corresponding Regional Authorities through reports giving details of the information necessary for the declaration of contaminated land.
In respect of land being delared to be contaminated, at the initiative of the pertinent Regional Authority this fact shall be noted in the margin of the Land Registry entry, and in the terms that are set out in Government regulations. In addition, provision is made that this declaration can entail the suspension of the enforceability of building rights and other uses made of the land in the event that they are incompatible with the measures stipulated for the cleaning and recuperation of the land until they have been carried out or until the land is certified to be uncontaminated.
The Regional Authorities, in charge of drawing up the inventory of land declared to be contaminated, will send the inventory to the Ministry of the Environment and Rural and Marine Affairs within the space of one year from when this act enters into force, and will send updated information each year. In turn, once a piece of land has ceased to be contaminated and this has been certified by the Regional Authority, this certification will be included in the inventory that has been drawn up by them.
For its part, the Ministry of the Environment and Rural and Marine Affairs will draw up a national inventory of contaminated land on the basis of the information that it receives from the Regional Authorities.
Regarding the parties responsible for the decontamination and recuperation of contaminated land, in the case where there are several parties who have caused the contamination, they shall be jointly liable for assuming the obligations, and then the owners of the contaminated soils and the occupants of the land, in this order, shall be subsidiarily liable. In the case of property in the public domain under concession, the occupant and the owner, in this order, shall be subsidiarily liable in the absence of the party causing the contamination.
The persons with subsidiary liability may pass on the cost of the measures taken for recuperating the land that has been declared to be contaminated to the party or parties causing the contamination.
Similarly the recovery of the costs of decontamination may never be demanded in excess of the levels of contamination associated to the use of the land at the time when the contamination was produced by the party causing it.
With regard to the remediation of the land through conventional methods, as a new way of carrying out the actions of cleaning and recuperation, the law adds the use of the contracts provided for in the Public Sector Contracts Act 30/2007, of 30th October. Similarly, the granting of economic incentives to help the financing of the costs for cleaning and recuperation of contaminated soils must take place according to the provisions in legislation for operations of decontamination and recuperation of contaminated soils with public funding.
Lastly, we mention the contribution that this law has made in the aspect of the recuperation of contaminated soils, making it possible to proceed with what is known as “voluntary recuperation of the soil” for the decontamination of the land, without it previously being declared to be contaminated by the Regional Authorities, all of this through a project of voluntary recuperation to be approved by the compentent body of the Regional Authority. Once the project is completed, a certificate will be given saying that the decontamination has been carried out according to the project. The competent authority will keep an administrative register of the decontamination action that is carried out voluntarily.