The aims of this paper are:
- identifying new aspects about packaging, waste management and the AIA;
- listing some particularities of the new Law 68/2015, as well as those found in the new Part VI a of the Legislative Decree 152/2006 (“Environmental Code”) introduced by the above mentioned Law 68/2015. This new Part VI a is indeed crucial for managing litigation avoidance in the so-called “environmental” sectors – including the one considered here – because it introduces a new system for the prescription of crimes as provided for by the other sections of the aforementioned “Environmental Code”.
Since 18th August 2015, Law 29th July 2015 n. 115, or “European Law 2014”, has been in force. It directly affects Italian law by conforming it to the European legal framework, in order to respond to the infringement procedures adopted by the European Commission against Italy. Among the “environmental” provisions, we would like to highlight changes to packaging control included in Legislative Decree 152/2006. Under these provisions, the rules of the “Environmental Code” now apply also to packaging produced in Italy, but destined to the European market.
1) Since 1st June 2015:
- important changes have occurred regarding classification of waste. Since that date, it has been possible to apply Decision 955/2014/EC, which modifies the European list of waste and – as specified by Italian Ministry of the Enviroment in its note of 28th September 2015 – replaces attachment D, Part IV, of Legislative Decree 152/2006;
- Regulation (EU) 1357/2014 has replaced attachment III to Directive 2008/98/EC (Attachment I to Legislative Decree 152/2006). Therefore, attachment I, Part IV, is no longer in force, since it is replaced by the attachment to Regulation (EU) 1357/2014;
- the new provisions established by regulation 2015/830/EU for filling in safety data sheets of chemical substances have come into force. This measure has replaced Attachment II to regulation “Reach” (1907/2006/EC), in order to adjust the provisions according to the fifth revision of GHS rules (Globally Harmonised System of Classification and Labelling of Chemicals).
2) Since 4th July 2015, Decree Law 92/2015 has affected the “Environmental Code”, by modifying the concepts of “original waste producer”, “collection” and “temporary storage”.
- the concept of “original waste producer” (article 183, paragraph 1, letter f of Legislative Decree 152/2006) now includes also any party legally connected to waste production;
- as for waste “collection” (letter o), the Decree Law states that “storage” – already included into the former with “sorting” – is to be intended as “preceding the collection” only;
- as well as indicating blending or mixing of waste, “temporary storage” (letters bb) now also includes “storage preceding collection for transport to a waste treatment facility”. Furthermore, the definition “place of waste generation” is to be understood as “the whole area where the activity generating waste is undertaken”.
3) Law 6th August 2015, n. 125, passing Decree Law 78/2015, states that the cost items setting the price of TARI (Tax on Waste) must include the lost revenues due to bad debts with reference to pre-existing systems (TIA 1, TIA 2 and TARES).
4) Ministerial Decree 24th June 2015 (effective since the 11th September 2015) amended the provisions contained in Ministerial Decree 27th September 2015 regarding the criteria of waste eligibility in landfills. Among the changes, we highlight the newly-introduced evaluation of the neutralizing capacity of stable non-reactive hazardous waste’s acid, in order to dispose of them in non-hazardous waste landfills.
AIA (Integrated Environmental Authorization)
Companies that have been working in compliance with the AIA prior to 7th July 2015 can carry on with their activity beyond that date, while waiting for the relevant authorities to update their AIA. Already included in Decree Law 92/2015 – that was not passed into law, the provision has been transferred into Law 125/2015, passing Decree Law 78/2015, without modifications. The companies can keep up their activity, provided that, if necessary, the relevant authorities take care of suitably updating their authorizations and that all the amendments proposed in the adjusting applications are fully implemented.
Law 68/2015 adds Title VI b, “Crimes against the Environment”, to the criminal code. It has been in force since 29th May 2015 and cannot apply to the proceedings before that date.
The most significant crimes are:
- “environmental pollution” (article 452 a), punished with imprisonment from two to six years and a fine from €10,000 to €100,000. If it causes deaths or bodily harm, sentences are harsher (article 452 b);
- “environmental disaster” (article 452 c), punished with imprisonment from five to fifteen years.
Negligent crimes carry a sentence reduced by one to two thirds. If there is a risk of environmental pollution or disaster, sentences are reduced by another third (article 452 d). The sentence is increased by up to one third if the pollution incident in a protected natural area, a zone within landscape, environmental, historic, artistic, architectural or archaeological restriction, or if endangered animal or plant species are harmed.
By means of Title VI a of the criminal code, Law 68/2015 also states the following environmental crimes: trafficking and abandonment of high radioactivity material (article 452 e), punished with imprisonment from two to six years and a fine from €10,000 to €50,000; hindrance to inspections (article 452 f), punished with imprisonment from six months to three years. Article 452 g features specific aggravating factors for crimes of association designated within articles 416 and 416 a of the Criminal Code. Failure to reclaim polluted areas (article 452 n) is punished with imprisonment from one to four years and a fine from €20,000 to €80,000. Ineligibility to enter into a contract with the government extends to those convicted of intentional environmental pollution and disaster, trafficking and abandonment of high radioactivity material and hindrance to inspections, as well as to those convicted of illegal waste trafficking.
The new Law introduces the institution of voluntary disclosure. This acts as a mitigating factor on behalf of those who, before the first hearing starts, respectively avoid the illegal activity from leading to further consequences, taking care of securing, reclaiming or restoring places to their original state, or cooperate actively in re-enacting events and finding the culprits. Reclaiming polluted areas can mitigate punishments but cannot extinguish crime. In fact, voluntary disclosure does not feature among the causes of immunity for environmental crimes (unlike infringements, according to the new paragraph 4, article 257 of Legislative Decree 152/2006). Therefore, regarding environmental crimes, it seems that repentance is unlikely to assure the disclosure of offences or encourage reclamation of polluted areas.
Law 68/2015 adds environmental crimes to article 25 l of Legislative Decree 231/2001 as new offences. This assumption implies companies’ responsibility.
Article 452 g of the criminal code carries an aggravating factor for crimes of association, including both criminal conspiracy (as laid down in article 416 of the criminal code) and Mafia association (as laid down in article 416 a of the criminal code). The sentence is increased by up to one third (in compliance with article 64 of the Criminal Code) and from one third to one half if public officers or people in charge of public services carrying out environmental tasks or functions have participated in the association.
Article 452 l, paragraph 1 of the Criminal Code states the mandatory seizure of items which have been produced by, earned through or used for committing the crime – unless they belong to people not guilty of the crime – in case of conviction or plea bargain for crimes of environmental pollution or disaster, trafficking and abandonment of high radioactivity material, hindrance to inspections and crimes of association with aggravating factors.
Seizure is extended to the crime provided for by article 260 of Legislative Decree 152/2006.
Article 1, paragraph 9 of Law 68/2015 adds the new Part VI a to Legislative Decree 152/2006 (“Environmental Code”), thus introducing a “sentencing control for administrative and criminal offences regarding environmental protection”. The brand new Part VI a consists of seven articles – from 318 a to 318 g – and introduces a procedure similar to the one for safety at work, provided for by articles from 20 onwards of Legislative Decree 758/1994, although its adoption is more complicated with respect to environmental issues.
As for the infringements included in the “Environmental Code”, Law 68/2015 introduces a process for extinguishing crime through its regularisation, provided the infringement has not “caused damage or posed existing, actual risk of damaging protected environmental, urban or landscape resources”.
The new article 318 c of Legislative Decree 152/2006 states that, when provisions are followed, “the supervisory authority allows the transgressor to pay [...] one fourth of the maximum fine imposed for the infringement committed”. Therefore, the new provisions apply only to infringements provided for by the “Environmental Code” and, among these, only to those punished with a fine imposed with or without imprisonment. With respect to waste, for example, the provisions do not apply to the offence punished under article 255 paragraph 3, carrying only a sentence of imprisonment for failure to comply with the mayor’s order in case of abandonment. Or, with regard to waters, they do not apply to the offence provided for by article 137, paragraph 11, carrying a sentence of imprisonment for up to three years in case of failure to observe the “no dumping” prohibition.
In other words, for the new system to be applied, fines must show among the penalties provided for by the Environmental Code. However, it seems rather peculiar that infringements included in other environmental regulations (e.g. those concerning landfills or Seveso) are not considered.
Law 29th July 2015 n. 115, “European Law 2014”, www.reteambiente.it/normativa/22596/