Environmental law and practice in Italy: overview

A Q&A guide to environment law in Italy. This Q&A provides a high level overview of environmental law in Italy and looks at key practical issues including emissions to air and water, environmental impact assessments, waste, contaminated land, and environmental issues in transactions. In addition, answers to questions can be compared across a number of jurisdictions to assist in the management of cross-border transactions (see Country Q&A Tool).

The Q&A is part of the global guide to environment law. For a full list of jurisdictional Q&As visit www.practicallaw.com/environment-mjg.

Contents

Environmental regulatory framework

1. What are the key pieces of environmental legislation and the regulatory authorities?

Environmental policy and regulations are mainly covered by Legislative Decree 152/2006, Environment Regulation (Environmental Code).

The Environmental Code reflects European principles, such as:

  • The polluter pays principle.

  • The principle of prevention and precaution.

  • Sustainable development.

Apart from the Environmental Code, environmental provisions can be found in:

  • Presidential Decree 59/2013 concerning the rules and regulations on the Sole Environmental Licence and environmental administration procedure simplification with reference to small and medium enterprise (Autorizzazione Unica Ambientale).

  • Legislative Decree 231/2001 concerning the legal entities quasi-criminal liability.

  • Law 447/1995 concerning noise pollution.

  • Presidential Decree 151/2011 on fire prevention certificates.

  • Electrical and Electronic Equipment Directive 2012/19, which was implemented in Italy through Legislative Decree 49/2014.

  • Legislative Decree 36/2003, which transposed Landfill Directive 1999/31/EC into Italian legislation.

  • Law 257/1992 and Ministerial Decree 985500/1994 on asbestos management provisions.

The main authorities in charge of environmental control and supervision are the:

  • Ministry of Economic Development.

  • Ministry of the Environment.

  • Local health authorities.

 

Regulatory enforcement

2. To what extent are environmental requirements enforced by regulators?

The authorities in charge of enforcing environmental provisions are:

  • Local authorities (municipalities, provinces and regions).

  • The Ministry of Environment.

  • Specific environmental agencies.

  • The security force.

  • The local health authorities.

These authorities must verify compliance with environmental prescriptions. In certain cases they can also apply specific disqualification measures.

 

Environmental NGOs

3. To what extent are environmental non-governmental organisations (NGOs) and other pressure groups active?

The role of non-governmental organisations (NGOs) is very important, including for environmental matters, as they can:

  • Take part in administrative procedures and steering committees for the issuance of administrative acts.

  • Draft legislative proposals.

  • Propose and participate in national referenda aimed at repealing law provisions.

For example, in November 1987, the anti-nuclear coalition launched a referendum to reject the expansion of the nuclear power industry in Italy. Based on the results of this referendum, the Parliament had to announce a five-year moratorium (moratoria) on the construction of new nuclear power plants. Once the five-year moratorium period expired, new laws were passed that allowed the construction of nuclear power plants in Italy. However, on 13 June 2011, a debated referendum took place and the electorate opposed the construction of new nuclear power plants within the Italian territory. As a consequence, the laws have been abrogated and the referendum banned any future nuclear power plants planned during the previous years.

 

Environmental permits

4. Is there an integrated permitting regime or are there separate environmental regimes for different types of emissions? Can companies apply for a single environmental permit for all activities on a site or do they have to apply for separate permits?

Operators can file applications for both integrated and single environmental authorisations, depending on the nature and extension of the activity to be carried out.

Integrated/separate permitting regime

The main integrated authorisations are the:

  • Integrated Pollution Prevention and Control (IPPC) authorisation, which is regulated under Legislative Decree 152/2006.

  • Sole Environmental Licence (SEL), which is regulated under Presidential Decree 59/2013.

SEL replaces authorisations concerning:

  • Activities carried out by small and medium enterprises.

  • Installations operated by any enterprise that is not subject to IPPC.

Both IPPCs and SELs replace specific environmental authorisations though the content from these will be included in the IPPC/SEL.

Single/separate permits

The main single permits are the:

  • Air emission authorisation.

  • Wastewater authorisation.

 
5. What is the framework for the integrated permitting regime?

Permits and regulator

Integrated Pollution Prevention and Control (IPPC) authorisations are issued by the Ministry of the Environment or by the relevant Region or Province, depending on whether the activity to be carried out falls within Annex VIII or XII to the Second Part, Legislative Decree 152/2006.

The Sole Environmental Licence (SEL) application must be filed with the SUAP (Sportello unico delle attività produttive), which immediately transfers, via the internet, the application to the relevant public authorities as well as to the environmental experts (such as public administrations and public entities that, according to the current applicable rules and regulations, deal with those procedures replaced by the SEL) and verifies that the application has been formally completed in accordance with the relevant public authority. A SEL is formally issued by the SUAP.

Length of permit

An IPPC authorisation lasts for ten years. Authorisations last for 12 years for installations that have a UNI EN ISO 14001 certification at the time the authorisation was issued.

A SEL authorisation lasts 15 years.

Restrictions on transfer

There are no specific restrictions on the transfer of IPPC and SEL authorisations.

Penalties

According to Legislative Decree 152/2006, whoever operates an installation without the necessary IPPC can face:

  • Imprisonment of up to one year.

  • A fine (ammenda) ranging between EUR2,500 to EUR6,000.

  • Closure of the installation itself by the relevant Public Authority.

There are no specific sanctions related to SEL infringements. The sanctions applied are those stated in Legislative Decree152/2006 for every authorisation incorporated within SEL.

 

Water pollution

6. What is the regulatory regime for water pollution (whether part of an integrated regime or separate)?

Permits and regulator

Depending on the provisions set out at regional level, a waste water authorisation is generally issued by the Province.

Prohibited activities

Subsoil discharges are banned (Article 104, Legislative Decree 152/2006). Infringers face imprisonment of up to three years. Operators also cannot exceed the thresholds stated in Legislative Decree 152/2006.

Clean-up/compensation

See Question 14 on the specific provisions concerning the clean-up procedure.

Penalties

Criminal sanctions mainly cover:

  • Wastewater discharges made without the relevant authorisations.

  • Non-compliance with the terms of the Environmental Permit.

  • Infringement of the discharge limit values set out in the Environmental Code.

  • Suspension or revocation of permits.

Legislative Decree 152/2006 provides many sanctions (both criminal and administrative) depending on the infringement committed.

For example, operators without an industrial waste water authorisation can face (Article 137, Legislative Decree 152/2006):

  • Imprisonment from between two months to two years; unless the discharge is of specific dangerous substances (outlined in Legislative Decree 152/2006), in which case the range increases to between three months to three years.

  • A fine ranging from EUR1,500 to EUR10,000, unless the discharge is of specific dangerous substances, in which case the range increases to between EUR5,000 to EUR52,000.

Those that exceed the thresholds set out in Legislative Decree152/2006 concerning specific polluting substances can also face:

  • Imprisonment up to two years, unless the discharge is of specific dangerous substances, in which case the range increases to between six months and three years.

  • A fine ranging from EUR3,000 to EUR30,000, unless the discharge is of specific dangerous substances, in which case the range increases to between EUR6,000 to EUR120,000.

 

Air pollution

7. What is the regulatory regime for air pollution (whether part of an integrated regime or separate)?

Permits and regulator

Depending on the provisions set out at regional level, air emission authorisations are issued by the region or by the province.

Prohibited activities

Operators cannot exceed the thresholds provided for by:

  • The authorisation.

  • Legislative Decree 152/2006.

  • The relevant public authorities.

Clean-up/compensation

See Question 14 on the specific provisions concerning the clean-up procedure.

Penalties

Under Article 279 of Legislative Decree 152/2006:

  • Those that operate a plant without an air emission authorisation, including a Sole Environmental Licence (SEL), or operate after an air emission authorisation has expired, can face:

    • imprisonment ranging from two months to two years;

    • a fine ranging from EUR258 to EUR1,032.

  • The infringement of the requirements set out by the air emission authorisation (including an SEL) or those set by the relevant public authority can result in:

    • imprisonment up to one year;

    • a fine up to EUR1,032.

Climate change, renewable energy and energy efficiency

8. Are there any national targets or legal requirements for reducing greenhouse gas emissions, increasing the use of renewable energy (such as wind power) and/or increasing energy efficiency (for example in buildings and appliances)? Is there a national strategy on climate change, renewable energy and/or energy efficiency?

There are national targets for:

  • Reducing greenhouse gas (GHG) emissions.

  • Increasing the use of renewable energy.

  • Establishing increased energy efficiency in accordance with the relevant international and European targets.

In relation to establishing increased energy efficiency, in 2009 the European Union (EU) enacted a set of binding legislation (Climate and Energy Package) with the aim of ensuring that the EU meets its climate and energy targets for 2020, which are:

  • 20% reduction in EU GHG emissions from the 1990 levels.

  • Raising the share of EU energy consumption produced from renewable resources to 20%.

  • 20% improvement in the EU's energy efficiency.

The EU is also offering to increase its emissions reduction to 30% by 2020 if other major economies in the developed and developing world also commit to the global emissions reduction effort.

On 23 October 2014, the EU leaders agreed the EU's 2030 climate and energy target, providing for:

  • GHG reduction of at least 40% compared to 1990.

  • A share of EU energy consumption produced from renewable resources of at least 27%.

  • An improvement in the EU's energy efficiency of at least 27%.

The process to adopt the European legislative instruments necessary to achieve the 2030 targets will be introduced in 2015.

GHG emissions reduction targets

Italy is a signatory to the Kyoto Protocol and subject to the Climate and Energy Package. See Question 9 relating to GHG emissions reduction targets.

Renewable energy increase targets

Italy is a member state of the EU and is subject to the obligations regarding the use of renewable energy set out in Directive 2009/28/EC on the promotion of the use of energy from renewable sources (Renewable Directive). In particular, under Legislative Decree 28/2011, which implemented the Renewable Directive, Italy must ensure a target of at least 17% of its energy comes from renewable sources in its gross final consumption of energy in 2020. The achievement of this target is accompanied by a system of public incentives that rewards the construction and installation of renewable energy plants in Italy.

In 2020 at least 10% of the final energy consumption in the transport sector must also come from renewable sources.

Energy efficiency increase targets

The Italian Government recently enacted Legislative Decree 102/2014 implementing Directive 2012/27/EU on energy efficiency (Energy Efficiency Directive). The Energy Efficiency Directive establishes a common framework of measures for the promotion of energy efficiency within the EU in order to ensure the achievement of the EU's 20% headline target on energy efficiency by 2020.

Under Legislative Decree 102/2014, the national indicative energy efficiency target is to reduce by 2020, 20 million tonnes of gross energy consumption, which is equal to 15.5 million tonnes of final energy consumption (taken from 2010) in accordance with the national energy strategy. For this purpose, Legislative Decree 102/2014 lays down a series of measures and long-term strategies for the promotion and achievement of the energy efficiency target, including (but not limited to):

  • Building renovation.

  • Use of qualification.

  • Accreditation and certification schemes.

  • Efficiency in energy supply.

Legislative Decree 28/2011 gives rules to promote energy efficiency, including the obligation to install thermal energy plants that ensure the use of renewable energy in the renovation or the construction of buildings.

 
9. Is your jurisdiction party to the United Nations Framework Convention on Climate Change (UNFCCC) and/or the Kyoto Protocol? How have the requirements under those international agreements been implemented?

Italy is a party to both the UNFCC and the Kyoto Protocol.

The Italian Kyoto target (as a member state of the EU) is a reduction of 8% below its 1990 carbon dioxide emission levels in the first commitment period (2008 to 2012).

Italy's target under the EU Burden Sharing Agreement is 6.5% below its 1990 carbon dioxide emission levels in the same period.

According to the GHG Inventory 1990-2012: National Inventory Report 2014 submitted by the Institute for Environmental Protection and Research (ISPRA) (Istituto Superiore per la Protezione e la Ricerca Ambientale) to the UNFCC Secretary, Italy has not complied with its burden under the Kyoto Protocol, as redistributed under the EU Burden Sharing Agreement. In particular, considering the average emissions for the period 2008 to 2012, the reduction compared to the base year is 4.6% while the national target was 6.5% of GHG emissions reduction in the same period. If the UNFCC confirm ISPRA's data, Italy will have to buy allowances through Emissions Trading and/or Clean Development Mechanisms to meet its obligations.

Moreover, the National Action Plan for the reduction of GHG emission levels, approved on 8 March 2013 by the CIPE (Interministerial Committee for Economic Planning) establishes a number of measures aimed at reducing GHG emissions that, together with measures in the transport, agriculture and waste management sectors, include:

  • A public incentives regime promoting the use of renewable energy.

  • Encouraging energy savings in industry by promoting the use of co-generation and teleheating.

  • Minimum energy efficiency standards for new buildings or buildings subject to heavy renovations in the civil and service sectors.

  • Incentives for energy savings in existing buildings through a 55% tax deduction.

  • Promotion of the green economy.

 
10. What, if any, emissions/carbon trading schemes operate in your jurisdiction?

Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading within the Community (Emissions Trading Directive) establishes a scheme for GHG emission allowance trading within the EU. The scheme works on the "cap and trade" principle. A cap (or limit) is set on the total amount of certain GHG that can be emitted by factories, power plants and other installations in the system. The cap is reduced over time so that total emissions fall. In 2020, emissions from sectors covered by the scheme will be 21% lower than in 2005. Within the cap, companies receive or buy emission allowances that they can trade with one another as needed. The limit on the total number of allowances available ensures that they have a value. After each year, a company must surrender enough allowances to cover all its emissions, otherwise heavy fines are imposed. If a company reduces its emissions, it can keep the spare allowances to cover its future needs or else sell them to another company that is short of allowances. The flexibility that trading brings ensures that emissions are cut in areas where it is most cost effective.

The scheme is currently in its third phase, running from 2013 to 2020. A major revision of the Emissions Trading Directive introduced by means of Directive 2009/29/EC in order to strengthen the system means the third phase is significantly different from former phases. The main changes are:

  • A single, EU-wide cap on emissions applies in place of the previous system of national caps.

  • Auctioning rather than free allocation is now the default method for allocating allowances. In 2013, more than 40% of allowances will be auctioned, and this share will rise progressively each year.

  • For those allowances that are still given away for free, harmonised allocation rules apply that are based on ambitious EU-wide benchmarks of emissions performance.

  • More sectors and gases are included.

The Emissions Trading Directive has been originally implemented by means of Legislative Decree 216/2006. Following the 2009 major revision, Legislative Decree 216/2006 was repealed and replaced by Legislative Decree 30/2013.

Legislative Decree 30/2013 appoints the national committee on implementation of Directive 2003/87/EC, situated within the Ministry for Environment, as the national authority assigned to implement the Emissions Trading Directive.

As with the former legislation, Legislative Decree 30/2013 also provides that no installation falling within the Emissions Trading Directive is allowed to produce carbon dioxide emissions or operate without a specific authorisation. The provisions set out in Legislative Decree 30/2013 also apply to combustion installations with a thermal power higher than 20 MW. The authorisation must be requested from the national committee at least 90 days before the commencement of the relevant activity. The national committee issues the authorisation within 45 days from the application.

Anyone who operates an installation without GHG authorisation is subject to a fine ranging from EUR25,000 to EUR250,000, which increases by EUR100 for each carbon dioxide tonne without the necessary authorisation that is released (Article 36, Legislative Decree 30/2013). In these cases, the authorisation must be obtained within 30 days from the date in which the infringement was detected. After this time, the installation will be suspended if an authorisation has not been acquired.

The operator who fails to surrender the amount of allowances owing by 30 April of each year will be fined EUR100 for each carbon dioxide allowance that has not been surrendered. The operator must also surrender such allowances by 30 April of the following year.

The procedure for implementing the "equivalent measures" for small installations excluded from the Emission Trading Directive is established under Article 38 of Legislative Decree 30/2013 (in accordance with Article 27 of the Emissions Trading Directive). In particular, the following categories of small plants may be exempted from the ETS (by application from the operators who wish to benefit from the opt-out regime) (Article 38, Legislative Decree 30/2013):

  • Plants that did not exceed 25 billion tonnes of carbon monoxide emissions (MtCO2e) per year in 2008, 2009 and 2010, without considering biomass emissions.

  • Fuel combustion plants with a nominal thermal capacity below 35 MW.

  • Thermic plants installed in hospitals.

Plants admitted to the opt-out regime must comply with certain yearly amounts of GHG emissions that will be determined according to the rules set out in the National Committee's Decision 12/2012. If the amount of GHG emissions set out for a certain plant is exceeded, the plant will be subject to penalties for surplus emissions. On the other hand, if the plant's actual emissions are lower than those allowed under the equivalent measures, the relevant allowances will be added up to those available in the subsequent period.

Additionally, Directive 2008/101/EC included aviation from 2012 under the Emissions Trading Directive and was implemented by Legislative Decree 257/2010. Articles 5 to 11 of Legislative Decree 30/2013 set out the procedure for the auctioning of allowances and also for the allocation of free allowances to aircraft operators (including specific provisions related to monitoring plans and relevant updates). For free allowances, on the basis of the benchmarks established under Decision 2011/638/EU, the National Committee, through Decision 36/2011 has allocated a number of GHG emission allowances free of charge to aircraft operators for the period 2012 to 2020.

 

Environmental impact assessments

11. Are there any requirements to carry out environmental impact assessments (EIAs) for certain types of projects?

Scope

Projects that are most likely to produce negative effects on the environment, listed in Annex II, III and IV to part II of Legislative Decree 152/2006, are submitted to the environment impact assessments (EIAs) procedure before the commencement of the project. More precisely, Annex II projects (which have a major environmental impact) are assessed by the Ministry of Environment, while Annex III projects (which have a lower environmental impact than Annex II projects) are subject to the jurisdiction of the regions and provinces of Trento and Bolzano. Annex IV projects are subject to a simplified procedure (Screening) in order to assess if the projects themselves have to be submitted to EIA.

Permits and regulator

An EIA must be carried out before obtaining all other authorisations, licences, permits and opinions relating to the project. If the EIA give a negative decision, the relevant authorisations will not be issued and the project cannot commence.

Penalties

Projects developed without prior EIA or Screening, if required, or not complying with the provisions provided for by EIA or screening decree, could be removed by the competent Authority (Article 29, Legislative Decree 152/2006).

Authorisation issued without previous EIA or Screening, if required, are deemed annulled by the competent authority. Such authorisation may also be requested at the administrative courts by third parties with a legitimate interest (for example, NGOs, neighbours claiming to have been damaged by the project).

 

Waste

12. What is the regulatory regime for waste?

Permits and regulator

The regulatory regime on waste depends on the activity to be carried out:

  • Integrated Pollution Prevention and Control (IPPC) waste activities are governed by IPPC authorisation.

  • For non IPPC-waste activities, the regulation and permit regime depends on the qualification of the waste:

    • special waste must be delivered to a duly authorised third party or to the town waste manager, under specific agreements or must be exported out of Italy under specific conditions;

    • town waste is managed by the concessionary of the waste collection and transport service, granted by the public authorities.

Recovery and disposal of non IPPC-waste requires a Single Authorisation to be issued by the Region or Province, depending on regional laws and regulations. For some types of recovery (included in Ministerial Decree 1998 and Ministerial Decree 161/2002 and 269/2005) an application can be made for a simplified procedure, such as inclusion on the Provincial Register of the recovery management.

Prohibited activities

The main prohibited activities provided for by the Environmental Code are:

  • Management of waste (such as transport, recovery, disposal, trading and intermediation) without the required permits, authorisation and inscriptions to a special register (Albo dei Gestori Ambientali).

  • Abandonment and uncontrolled storage of waste on land.

  • Introduction of waste into surface water or groundwater.

  • Illegal combustion of abandoned and uncontrolled stored waste in land.

  • Production of waste without keeping the required registers (to record the quality or quantity of the waste produced and transferred).

Operator criteria

Companies that produce waste must keep a register recording the quantity and quality of the waste produced and transferred.

Certain companies that manage waste (transport, trading and intermediation companies) have to be included in a special register.

Companies that recover and dispose of waste have to obtain the required permits (such as IPPC, Single Authorisation or registration to the Provincial register, depending on the activity to be carried out).

Specific requirements are provided for the operation in landfill sites under Legislative Decree 36/2003:

  • Having qualified personnel.

  • Undertaking surveillance and control programmes.

  • Providing guarantees.

  • Undertaking land management plants when the plant will be no longer operational.

Special rules for certain waste

Special rules include the following:

  • Electrical and Electronic Waste (EEW) (Legislative Decree 151/2005), which is waste that consists of any electrical or electronic equipment.

  • Medical Waste (Presidential Decree 254/2003), which is waste that originated from medical activities. To ensure the protection of health and environment, temporary storage, handling of the waste at the health facility, preliminary storage, collection and transportation of hazardous and infectious medical waste must be made using special packaging that is not too loose, but that is also flexible, with the words "health hazardous and infectious waste" and the biohazard symbol. The hazardous and infectious medical waste must be disposed of by incineration in facilities authorised (Legislative Decree 152/2006). The hazardous medical waste carrying a risk of infection can only be disposed of in specific incineration plants of hazardous waste bearing specific authorisations and permits that allow this specific activity.

The Environmental Code also provides for a consortium for the management of packages and waste originated by packages (Consorzio Nazionale Imballaggi) (CONAI).

The CONAI model is based on the principle of shared responsibility, which assumes the co-operation between all the operators involved in waste packages management.

CONAI is based on the activities of six consortia that must co-ordinate and organise the collection and transport of packing waste as well as the recycling and recovery process.

Penalties

The Environmental Code provides for administrative or criminal sanctions where there is a breach of the requirements for waste management, and in particular:

  • For waste management without a permit:

    • imprisonment up to one year for non-hazardous waste or two years for hazardous waste;

    • a fine up to EUR26,000 for non-hazardous waste or up to EUR26,000 for hazardous waste.

  • For pollution of soil and water due to waste activity:

    • imprisonment up to one year or between one to two years for cases involving dangerous substances;

    • fine up to EUR26,000 imprisonment or up to EUR52,000 in cases involving dangerous substances.

Failure to keep the required registers for the production of waste can result in administrative sanctions. Transporting hazardous waste without keeping the required register could also result in criminal offences such as forgery (Article 258, Environmental Code).

As of 1 February 2015, the provisions concerning enrolment to the Waste Tracking System (SISTRI) (Sistema di controllo della tracciabilità dei rifiuti) and the payment of the relevant contribution came into force and, therefore, the relevant sanctions now apply. Failure to comply with the requirements on enrolment to SISTRI and the payment of the relevant contribution is sanctioned with an administrative fine:

  • Up to EUR15,500.

  • From EUR15,500 to EUR93,000 (for hazardous waste).

 

Asbestos

13. What is the regulatory regime for asbestos?

Import, export, trading, and production of asbestos and asbestos containing materials (ACMs) was banned in Italy by Law 257/1992, which also required the presence of friable asbestos to be reported to the local health authorities.

There is currently no legal requirement in Italy to replace and dispose of non-friable ACMs. Regional Guidelines are usually adopted for ACMs' management, which establish the requirements for asbestos monitoring and assessment. Owners must follow asbestos monitoring, maintenance and remediation prescriptions set out under Ministerial Decree 985500/1994.

Prohibited activities

Owners must periodically control the maintenance status of ACMs adopted within their buildings and, if necessary, must replace, remediate and/or encapsulate the ACMs.

Main obligations

The owner and/or the manager of a plan are required, among other things, to (Law 257/1992 and Ministerial Decree 985500/1994):

  • Adopt a programme to monitor and maintain ACMs used in the building and put in place the necessary organisational measures to prevent such materials being damaged.

  • Where ACMs have been damaged (leading to a risk to human health), take appropriate actions such as:

    • Encapsulation;

    • clean-up works;

    • removal works.

  • Appoint a person in charge of controlling and co-ordinating asbestos maintenance activities.

  • Keep documentation confirming where asbestos is located.

  • Guarantee the adoption of adequate health and safety measures, in particular during asbestos cleaning and maintenance activities.

  • Inform people located at the plants about the asbestos.

Permits and regulator

Under Legislative Decree 81/2008 on health and safety protection of employees in the workplace, the employer must file with the relevant public authorities a specific working plan concerning asbestos removal activities. The technical procedure to remove or maintain asbestos is provided for in Ministerial Decree 985500/1994. Once remedial activities are completed, the local health authority will issue a certificate confirming that the workplace has been correctly remedied.

Penalties

Infringement of the provisions set out by Ministerial Decree 985500/1994 may be sanctioned with:

  • An administrative fine ranging from EUR3,615.20 to EUR18,075.99.

  • In some cases, the interruption of the activities.

The infringement of the provisions set out by Legislative Decree 81/2008 is punishable with criminal sanctions.

Contaminated land

See Question 14 for the specific provisions concerning the land clean-up procedure.

 
14. What is the regulatory regime for contaminated land?

Regulator and legislation

Legislative Decree 152/2006 sets out the specific provisions aimed at ensuring environmental safeguarding and at granting high levels of environmental protection and control. Legislative Decree 152/2006 provisions are based on the "polluter pays" principle (set out in EU Directive 2004/35). Under this principle, anyone that causes harm to the environment by a wilful or negligent violation of a legal provision or of an order issued by a public authority is liable for damages. The status of "polluter" is personal and cannot be transferred to third parties.

The relevant local authority is responsible for the enforcement of the contaminated land regime.

Investigation and clean-up

Under Legislative Decree 152/2006, if at a specific site, soil or groundwater exceed the threshold concentration levels set out by the 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 identified that the CSR have been met.

Anyone (including the site owner) who becomes aware of a site being contaminated must pass on this relevant information to the public authority. If the local authority identifies that a site is, or might be contaminated, it must carry out an investigation and can order further investigation of a specific site.

If the site is found to be contaminated, or there is a significant threat of contamination, the competent local authority must make an order to require:

  • A clean-up of the contaminated site in accordance with the requirements imposed by the competent authorities.

  • Adoption of safety measures to avoid the migration of any contamination.

The required standard of remediation is the return of the site to being "not contaminated".

Clean-up activities can be carried out by third parties (anyone who is not the polluter for example, the owner or another interested party, such as a buyer), subject to compliance with the prescriptions set out by the competent public authority.

Penalties

Causing land contamination and non-compliance with a clean-up order issued by the competent authority are criminal offences that can be punished with:

  • A fine up to EUR52,000.

  • Imprisonment up to two years (particularly in cases where contamination involves hazardous substances).

According to case-law, criminal liability exists only when pollution occurs (not just a risk of possible pollution), and pollution is assumed to exist when CSC are not met.

The unlawful conduct provided for under Article 257 of the Environmental Code is included within the list of crimes and administrative violations (reati presupposto) referred to under Legislative Decree 231/2001.

 
15. Who is liable for the clean-up of contaminated land? Can this be excluded?

Liable party

According to the polluter pays principle, the polluter is liable for pollution.

Owner/occupier liability

The polluter is liable for carrying out, or paying for, the environmental investigation and clean-up, even where the pollution was accidental.

Where the site is subject to clean-up obligations and the polluter cannot be identified or fails to carry out the clean-up works, the works can be carried out either by:

  • The local authorities.

  • The owner.

  • Any other interested party.

Where one of these other groups carries out the clean-up work, the costs can be recovered from the polluter.

If the current owner of the site is not the polluter, the owner is not liable for the clean-up of the contaminated site. The owner is only required to carry out such works as are needed to prevent greater harm being caused by the contamination.

However, if the local authority carries out the clean-up operations, it will recover expenses by securing a privilege over the property.

The costs of clean-up can also be recovered by the local authority through the forced judicial sale of the relevant land, if necessary.

The owner must indemnify the authority for the related costs, limited to the market value of the site. This is why the owner of the site, even if he is not the polluter, usually takes care of the clean-up works.

Previous owner/occupier liability

If the previous owner was even partly responsible for contamination of the site, he will be (proportionally) liable for the pollution that occurred and must pay part of the remediation procedure costs.

Limitation of liability

It may be very important if the activity operates according to the law and complies with the relevant permits as this may exclude possible criminal liability for the previously caused pollution.

 
16. Can a lender incur liability for contaminated land and is it common for a lender to incur liability? What steps do lenders commonly take to minimise liability?

Lender liability

A lender may be held liable for contamination only if he caused or contributed to causing the pollution.

Minimising liability

It may be very important if the activity was operated according to the law and in compliance with the relevant permits as this may exclude possible criminal liability for the previously caused pollution.

 
17. Can an individual bring legal action against a polluter, owner or occupier?

In principle, the Ministry for the Environment is the sole authority entitled to compensate for environmental damage (Article 311, Legislative Decree 152/2006).

Individuals can sue polluters for the specific economic damage suffered. Civil claims concerning injuries, losses or damages arising from an environmental incident are commenced before the civil courts according to the rules governing the ordinary and urgent court proceedings laid down in the Civil Code of Procedure.

 

Hydraulic fracturing

18. Is fracking being pursued or considered in your jurisdiction? If so, please describe the regulatory framework which applies to manage environmental risks.

Consenting and environmental impact assessment

Regarding hydrocarbons exploitation and research activities, it is forbidden to extract shale gas and shale oil, as well as the issuance of the relevant mining titles (Article 144, Legislative Decree 152/2006).

Any technique aimed at facilitating rock formation fracking is also forbidden. The infringement of such provision is sanctioned with the loss of the relevant mining title.

Other issues

There are no other issues in relation to fracking.

 

Environmental liability and asset/share transfers

19. In what circumstances can a buyer inherit pre-acquisition environmental liability in an asset sale/the sale of a company (share sale)?

Environmental liability is personal and cannot be transferred via contractual agreements to third parties. Therefore, in both share and asset deals, debts related to environmental damages cannot be transferred to the purchaser (see below, Asset sale). The purchaser cannot therefore be held criminally liable for inherited pre-acquisitions environmental liabilities.

Asset sale

Debts related to environmental damages cannot be transferred to the purchaser. However, with the acquisition of a going-concern, the purchaser becomes jointly and severally liable together with the seller for the environmental liabilities of the seller in relation to the transferred assets (only).

Share sale

With share deals there is no change in the legal entity of the polluter, and the seller remains fully liable for any environmental damage. Appropriate representations and warranties or indemnifications should be inserted in the share purchase agreement.

 
20. In what circumstances can a seller retain environmental liability after an asset sale/a share sale?

Liabilities connected to environmental damage are personal and, therefore, cannot be transferred to the buyer.

Asset sale

See Question 19.

Share sale

See Question 19.

 
21. Does a seller have to disclose environmental information to the buyer in an asset sale/a share sale?

Asset sale

Environmental information is disclosed prior to an asset or share deal so as to include within the relevant agreements specific warranties and indemnity clauses.

Share sale

See Question 19.

 
22. Is environmental due diligence common in an asset sale/a share sale?

In commercial transactions, correct conduct during the negotiations and good faith principles under the Civil Code apply. This means that the seller must disclose to the purchaser any environmental issue related to the transferring assets. Therefore, before signing a contract, parties usually carry out complete due diligence. All the issues that may arise from the due diligence are subject to negotiation and, normally, parties provide specific warranty clauses.

Scope

Environmental due diligence usually covers the analysis of administrative documentation (for example, authorisations) and any documentation concerning:

  • Environmental litigation.

  • Remediation procedures concluded or ongoing.

  • Environmental infringements.

Types of assessment

The analysis of environmental documentation carried out for the purposes of legal due diligence is usually limited to the verification of the main legal fulfilments on environmental matters. It does not extend to the verification or examination of the actual compliance by the target with the prescriptions provided for within the certifications and authorisations provided.

Environmental consultants

Legal due diligence is generally followed by technical environmental due diligence aimed at verifying whether the target is compliant with the prescriptions set out within its authorisations and certifications, as well as under the law (for example, compliance with air emissions and waste water discharges thresholds).

Buyers generally seek a reliance letter from the environmental technical consultants.

 
23. Are environmental warranties and indemnities usually given and what issues do they usually cover in an asset sale/a share sale?

Asset sale

Both warranty and indemnity clauses are usually included within an asset or share deal. They are mainly aimed at covering liabilities related to possible infringements of environmental provisions concerning, for example, asbestos, pollution or waste.

These clauses are usually tailor-made on the outcome of the due diligence process.

Share sale

Generally, the environmental warranties in a share sale are the same as in an asset sale.

 
24. Are there usually limits on environmental warranties and indemnities?

In principle, an indemnity clause (clausola di manleva), under which the indemnifying party commits to indemnify and hold the other contractual party harmless, may be given in relation to the sole economic consequences related to the damage suffered by third parties. According to Italian scholars, an indemnity clause should state a maximum amount or cap that will be borne by the indemnifying party.

These indemnity clauses do not result in a transfer of the legal liability affecting the indemnified party, but concerns the economic consequences related to such liability, to the extent that such liability does not arise from wilful misconduct of the liable party. According to Italian scholars and case-law, such indemnity clauses have been deemed valid on the condition that, through such a clause, the indemnifying party (that is the party not directly liable to third parties) realises an autonomous economic interest.

Environmental warranties are often subject to a cap, which is linked to a percentage of the purchase price. Time limits and caps for environmental indemnities vary depending to the scope of the indemnity and the environmental losses it is intended to cover.

Limitations on liability connected to events occurring after completion are usually included.

 

Reporting and auditing

25. Do regulators keep public registers of environmental information? What is the procedure for a third party to search those registers?

Public registers

Environmental information is usually included within public registers, examples of which include:

  • The national environmental manager register (Albo nazionale gestori ambientali), which holds all information about companies operating in the waste management field.

  • The region that usually holds information concerning the mapping of the areas or plants using asbestos.

  • The land register, which holds information concerning the environmental burden (onere reale) affecting a site.

  • The Ministry of the Environment, which holds information concerning IPPC authorisation issued.

  • The Ministry of Economic Development that holds information concerning mining titles issued.

Third party procedures

Environmental information is usually available to third parties (on specific request) (Legislative Decree 195/2005). Specific limitations are provided for under Article 5 for information that can violate trade secrets, confidential industrial information, IP rights or personal data.

 
26. Do companies have to carry out environmental auditing? Do companies have to report information to the regulators and the public about environmental performance?

Environmental auditing

Environmental auditing can be done on both a voluntary and binding basis.

Environmental auditing is voluntary if it relates to the issuance of non-binding environmental certifications (for example, ISO 14001).

Otherwise, environmental auditing is compulsory even if it is covered under the environmental authorisation for monitoring purposes (for example, with reference to air emissions and wastewater discharges).

Reporting requirements

Specific reporting requirements may be given in environmental authorisations.

 
27. Do companies have to report information to the regulators and the public about environmental incidents (such as water pollution and soil contamination)?

For contamination incidents, Article 242 of Legislative Decree 152/2006 provides that the polluter must immediately notify the competent authorities about polluting or a pollution-risk event, and follow a set of measures (for example, safety measures) aimed at avoiding such incidents.

 
28. What access powers do environmental regulators have to access a company?

Public authorities (such as local health authorities, security forces, regional or ministerial agents) can access a company to verify whether environmental proscriptions set out in their specific authorisations or environmental laws are fulfilled.

During these investigations, public authorities can collect documentation and samples and carry out environmental assessments.

 

Environmental insurance

29. What types of insurance cover are available for environmental damage or liability and what risks are usually covered? How easy is it to obtain environmental insurance and is it common in practice?

Types of insurance and risk

Italian general insurance law does not set out mandatory insurance coverage against the risk of environmental damages. Nevertheless, depending on the location of the plants, specific regional or local regulations may apply, and certain public authorisation procedures (see Questions 25 to 28) may require guarantees to be provided, including insurance guarantees.

Obtaining insurance

Damages and losses to third parties may be insured in the form of liability insurance. Insurers are not generally required to cover damages caused by the wilful or gross negligent conduct of the policyholder, the insured party or the beneficiary. But the parties may agree to cover the case of gross negligence.

With environmental incidents, coverage against remediation expenses arising from on-site events not involving third parties may be insured in the form of fire and other property insurance.

Also, under Italian insurance law and regulations, the risks of payment of an administrative fine is not insurable, and under general Italian law any contract relieving the transgressor from the consequences of a penalty (whether criminal or administrative) would be void on the basis of imperativeness and public order considerations.

Similarly, under insurance regulations, such insurance cannot be underwritten by a body assuming the liability for the amount of a fine imposed on the transgressor, in case such a body waives the right of recourse against such a transgressor.

 

Environmental tax

30. What are the main environmental taxes in your jurisdiction?

Environmental-driven taxes may be found in different contexts as they are aimed at addressing specific issues.

The levy on emissions of sulphuric anhydride (So2) and of nitrogen oxide (Nox) was introduced by Law 449/1997 and aims at reducing the emission of the chemical components into the air by taxing operators of large combustion plants, as defined under Directive 88/609/CEE.

Plants run by the same entity and located in the same site can be taxed provided that at least one of them has a thermic power not lower than 50 MW, and which fall within the provisions of Presidential Decree 416/2001.

The So2/Nox tax is levied:

  • For sulphuric anhydride at the rate of EUR106 per tonne emitted.

  • For nitrogen oxide at the rate of EUR209 per tonne emitted.

This tax is paid for in four yearly instalments and is determined by taking into account the emissions of the previous year.

The tax on waste disposal (TARI) was introduced by Law 147/2013, is levied on a local basis and not only covers waste collection and disposal costs but it also aims to reduce the production of waste and encourage recycling.

The tax liability for TARI purposes is connected with possession and/or use of real estate or premises or plants, assuming that each of those premises benefits from waste collection and disposal services.

Specific tax rates are defined on a local basis and also vary depending on the nature of the business activities carried out in the premises or on the number of people living in the same private premises.

The Robin Hood Tax consisted of an increase by 6.5% of the ordinary 27.5% corporate income tax rate for legal entities active in certain specific businesses that during the previous tax year:

  • Had a turnover of more than EUR3 million.

  • Whose taxable income was higher than EUR300,000.

This tax applied to business entities active in one of the following sectors:

  • Research and production of liquid and gaseous hydrocarbons.

  • Oil refining, production and commercialisation of petrol, oil and diesel fuel, lubricating oil and residual material, natural gas and oil gas.

  • Production, transmission and dispatch, distribution and commercialisation of electric energy.

  • Transport and distribution of natural gas.

Business entities that carried out activities that are different from the ones listed above, but whose majority profits derived, in any event, from activities falling within the scope of the above activities, can also be liable to this tax.

On 11 February 2015 the Italian Constitutional Court (Decision 10/2015) declared the Robin Hood tax invalid, due to its incompatibility with Articles 3 and 53 of the Italian Constitution. In a nutshell, the Judges claimed an unjustified discrimination of certain legal entities, active in the field of energy and hydrocarbons and claim that such levy degenerated into an arbitrary discrimination. Since the Decision will not have retroactive effects, the Robin Hood Tax remains due until 11 February 2015.

 

Reform

31. What proposals are there for significant reform (changes) of environmental law in your jurisdiction?

There are pending and ongoing projects (which the Italian Government has been dealing with for many years) concerning the implementation of a national radioactive waste disposal site (SO.G.I.N S.p.A.).

The company in charge of listing the areas deemed suitable for hosting the national radioactive waste disposal site submitted to the National Institute for Environmental Protection and Research (ISPRA) a proposal of a "National Chart" of the areas that were potentially eligible (the areas have been listed according to an order of suitability on the basis of their technical and environmental characteristics).

ISPRA is now required to analyse this National Chart and to draft a report that will be submitted, within 60 days, to the Ministry of the Environment and to the Ministry of Economic Development.

Once the site is set up, the national technical regulation on radioactive waste disposal will be approved.

 

Regulatory authorities

Ministry of Environmental Protection of Land and Sea

Main activities. The Ministry of Environment deals with the environment, the ecosystem, protection of marine resources, pollution, and on the environmental impact assessment (EIA), Strategic Environmental Assessment (SEA) and the integrated environmental authorisation (IPPC). It has expertise in the field of protection of soil desertification and geological heritage and co-ordinates and supervises the functions of the Environmental Code (Decree 152/2006 laying down the Environmental Regulations) that merged the former legislation.

W www.minambiente.it

Ministry of Heritage and Cultural Activities and Tourism

Main activities. The Ministry of Heritage and Cultural Activities and Tourism (MiBACT) is the Government department responsible for the protection of Italian culture, entertainment and the conservation of the artistic and cultural heritage and landscape and policies related to tourism.

W www.beniculturali.it

Ministry of Economic Development

Main activities. The Ministry of Economic Development (MED) is the department of the Italian Government that oversees production, international trade, communications and energy. It is the result of the reorganisation of three ministries: the Industry and Commerce (established in 1916 with various names over the years, most recently the Ministry of Industry), International Trade and Communication.

W www.sviluppoeconomico.gov.it



Online resources

W www.minambiente.it

Description. Official site of Ministry of the Environmental Protection of Land and Sea, maintained by this agency and containing official information.



Contributor profile

Luca Geninatti Satè, Head of Environmental Law Department

Legance Avvocati Associati

T +39 02 89 63 071
F +39 02 89 63 078 10
E lgeninatti@legance.it
W www.legance.it

Professional qualifications. Italy, Lawyer, 2004

Areas of practice. Environmental permits; water; waste.

Non-professional qualifications. Law degree, University of Turin, 2000 (graduated magna cum laude); PhD in Public Law, University of Turin, 2004; post-graduate course in Italian and comparative constitutional law, University of Siena, 2001

Languages. Italian, English, French

Professional associations/memberships. Associate Professor of Public and Constitutional Law; former member of a co-ordination group set up within the Italian Ministry for the Environment and the Protection of the Territory to implement the reform of environmental law; directly contributed to the drafting of Legislative Decree 152/2006 (Italian Environmental Code).

Publications. Author of more than 60 publications on both public and environmental law.


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