REMEDIATION OF CONTAMINATED SITES IN ITALY AND

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1 COMMON FORUM ON CONTAMINATED LAND NAPOLI, 9 OCTOBER 2014 REMEDIATION OF CONTAMINATED SITES IN ITALY AND THE NEW SIMPLIFIED CLEAN-UP PROCEDURE INTRODUCED BY LAW NO. 116/2014 Federico Peres (lawyer) Adjunct Professor of Environmental Law University of Padua B&P Avvocati Milano Verona Palermo federico.peres@buttiandpartners.com

2 Remediation of contaminated sites in the Italian legislation: some remarks The remediation, as an administrative procedure, was introduced in 1997 by the so called «Decreto Ronchi» (Legislative Decree no. 22/1997); the «Decreto Ronchi» s provisions were enforced by the Ministerial Decree no. 471/1999; at present the remediation of contaminated sites is regulated by Legislative Decree no. 152/2006, Part IV, Title V (Article 239 et seq.).

3 The remediation procedure (ordinary procedure by Article 242): summary responsible Preliminary Investigation on Contamination Threshold Concentrations (CTCs) Within 24 h - Notification to the Authority Preventive measures Not exceeded Restoration Self-certification Exceeded Notification Preventive measures Emergency Safety measures (M.I.S.E.) Within 30 days - Investigation Plan Within 30 days - Approval by the Authorities Conference Within 6 months - Risk Analysis (Risk Threshold Concentrations, RTCs) Not exceeded Exceeded Termination of the procedure (possible) Monitoring Plan Within 6 months Executive Project of a) clean-up b) operational safety measures c) permanent safety measures

4 Main problems from the legal point of view (outcomes from the Technical Committee on Contaminated Land, December 2013 April 2014)

5 Main problems: 1. Authorisations within the remediation procedure; 2. pilot tests and experimental projects; 3. perimeter of the site; 4. coordination between the remediation procedure and the use of the areas; 5. quality objectives: CTCs/RTCs and baseline values 6. sustainability of interventions and balancing of interests

6 1) Authorisations within the remediation procedure i) during the emergency phase (emergency safety measures shall be just communicated, but some activities require authorizations subjected to a release time which is often not consistent with an emergency situation, eg. discharges); ii) during the phase of approval of the Investigation Plan and the Clean-up Project (Article 242 provides that the approval is all-inclusive because it «replaces to all effects the expected authorizations, concessions, concerts, understandings, clearances, opinions and consents»; this provision is often not enforced, sometimes also because the project doesn t clarify what authorizations are necessary and therefore what the approval should authorize); iii) pilot tests and experimental projects (they too should be included in the allinclusive approval of the interventions).

7 2) Pilot tests and experimental projects i. They are still an «exception» in the remediation procedure; ii. they should instead be a tool in order to better identify the interventions to be executed and the respective methods; iii. they are an important tool in order to develop the BATNEEC (Best Available Techniques Not Entailing Excessive Costs); iv. they should be promoted by both the interested parties and the Authorities.

8 3) Perimeter of the site i. the boundaries of a potentially contaminated site should be the ones resulting from the investigations; ii. often, instead, the tendency is to include into the perimeter a big area (or the entire area owned by the interested party) even if the contamination is punctual and localized; iii. a correct setting of the perimeter allows the investigations to be more targeted and the interventions to be more detailed, making possible the use of the outside areas; iv. considering that the remediation should be carried out «in stages», the perimeter should be adapted (enlarged or reduced) during the procedure, so that the uncontaminated areas could be excluded without waiting for the completion of the clean-up.

9 4) coordination between the remediation procedure and the use of the areas i. lack of adequate coordination between building law and remediation procedure (difficult to distinguish the building activities that may interfere with the interventions; this point is not always clear in the clean-up project); ii. uncertain scope of the certification of completed remediation (when the remediation procedure is carried out in stages, it is not clear whether the cleanup of a single environmental matrix (eg. soil) or a single lot can be certified; authorities often prefer to "release" portions of areas, but with a different effect compared to the certification of completed remediation; iii. very long time for the certification of the clean-up interventions in order to return the areas to their lawful uses; iv. lack of an order of priority of the interventions;

10 5) quality objectives: CTCs/RTCs and baseline values i. low representativity of the CTCs values; in several European countries such values are calculated according to surveys and databases of local environmental matrices (baseline values ; preliminary screening); ii. problems, both technical and operational, in identifying RTCs values; iii. lack of a necessary assessment of baseline values, already during the investigation phase. The baseline values should replace the CTCs, if higher, because they are the "characteristic" values of the area to be cleaned-up regardless of the contamination found; iv. point of compliance for groundwater a. always placed at the downline edge of the site; b. CTCs values shall be granted! (RTCs for groundwater have lost some of their importance).

11 6) sustainability of interventions and balancing of interests i. essential elements, which involve environmental, social, economic and operational evaluations; ii. too often, they do not have central importance, as the legislation would require; iii. in case-law they have been enhanced with force by the higher courts. As for the Constitutional Court: a. recently, the judgment no. 85/2013 according to which there are no tyrants rights, this requires a fair balance of interests; b. then the fundamental judgment no.127/1990, which clarified that the calculation of "affordability" shall be referred to the average of the sector and not to the individual installation (large-scale analysis, evaluation of similar cases).

12 Proposals and legislative amendments

13 Proposals and legislative amendments This problems, which have been identified by the CTTC experts, were driven into a series of proposals of legislative amendments; At present, just one proposal has been implemented by the legislator: the introduction of a simplified procedure for the clean-up of soil.

14 The new simplified procedure for the clean-up of soil

15 The new simplified procedure for the cleanup of soil Law no. 116/2014 (converting into law the Decree law no. 91/2014) has introduced into the environmental code the new Article 242 bis containing new simplified procedure for the clean-up of soil Major innovations of the simplified procedure: 1. it applies to all sites (including remediation Sites of National Interest); 2. it involves just the clean-up of soil (not groundwater); 3. the choice is up to the operator (as defined by Article 302 4); 4. the values to be reached are the CTCs, (the Risk Analysis is not provided); 5. the in-site reuse shall be preferred;

16 The new simplified procedure for the cleanup of soil Timing of the procedure: Approval of the interventions (with final determination by the Region): within 90 days after the convocation of the Authorities Conference; Conclusion of the interventions: within 18 months (plus a possible 6- month extension) after the approval; Opening of the ordinary procedure: non-compliance of timing, except for justified suspension; Failure to achieve the CTCs.

17 The new simplified procedure for the cleanup of soil Investigation Plan: shall be presented by the operator after the conclusion of the interventions; shall be expressly approved within 45 days; the silence means consent applies to procedures which are initiated by (at experimental stage); shall be carried out jointly with the Regional Agency for the Protection of the Environment (ARPA), which will validate the data; the validation of the data constitutes the certification of completed remediation and allows the use of the area (except for the health risk assessment in case of volatile contaminants in groundwater)

18 The new simplified procedure for the cleanup of soil Critical points of the new simplified procedure: the operator as the only subject allowed to implement it; excessive length of time for the pronouncement of the Authority on the project (90 days + 30 for the convocation of the Authorities Conference); in-site reuse as a first option; lack of references to preventive measures and emergency safety measures; lack of coordination between the non-finalization of the simplified procedure and the opening of the ordinary procedure (especially the "destiny" of the activities carried out in the meantime).

19 Thank you for your attention