contaminated sites management and environmental liability ... · pdf filecontaminated sites...

ICCL 2009Helsinki, 16-17 September

Laura D’Aprile, Elena Romano ISPRA, Rome, Italy

[email protected]

Contaminated Sites Management and Environmental Liability in

Italy: Regulatoryand Technical Aspects

ISPRA organization and activities on Contaminated Sites

Legal framework: contaminated sites

Legal framework: environmental liability

Technical Documents and Guidelines developed by ISPRA

Conclusive Remarks

Contents

Istituto Superiore per la Protezione e la Ricerca Ambientale

Roma, 22 agosto

ISPRA

Istituto Superiore per la Protezione e la Ricerca Ambientale

Roma, 22 agosto

ISPRA

ISPRA was established by Law no. 133/2008 (conversion of Decree no. 112/2008, with amendements) – August 2008

ISPRA performs, with the inherent financial resources, equipment and personnel, the duties of:

- the Italian Environment Protection and Technical Services Agency (APAT);

- the National Institute for Wildlife (INFS);

- the Central Institute for Scientific and Technological Research applied to the Sea (ICRAM)

The Activities of ISPRA on Contaminated Sites

Activities on soil and groundwater carried out by Contaminated Sites Unit (former APAT)

Activities on Environmental Damage Assessment carried out by Environmental Liability Unit (former APAT)

Activities on marine areas carried out by Dep II (former ICRAM) – see next presentation

Activities on surface water and shores carried out by integrated activities of the 2 units

Full integration process ongoing.

The Activities of ISPRA on Contaminated Sites: ex APAT

Institutional Tasks (by Law):

-Technical support to the Ministry of the Environment for the management of NPL sites (projects evaluation, control and monitoring activities, development of characterization, remediation and risk analysis for public areas) and environmental damage assessment

-Development and mangement of National inventory of contaminated sites

- Data collection on contaminated sites management

- Support to teh Civil Protection Department

Applied Research activities (deriving from Institutional tasks)

- Development of guidelines and technical protocols on characterization, remediation and risk assessment

- Support (by specific funding) to P.A. (mainly regions and municipalities) for development of characterization, risk assesment and remediation

Regulatory framework: Contaminated Sites - 1

1999-2006

Decree of the Ministry of the Environment n. 471:

Application of the “limit value” criterion

2006-…….?

Legislative Decree n. 152 + Legislative Decree n. 4 (2008)

(“Framework Environmental Regulation”):

Application of aTiered Risk-Based Approach

Regulatory framework: Contaminated Sites - 2Decree of the MoE n. 471/99 Legislative Decree n. 152/06

Technical Regulation on Cleanup and Environmental Recovery of Contaminated Sites according to art. 17 of Law No. 22/97 (waste legislation), issued on December 1999.

Application of “limit values” for contaminant concentrations in soil and groundwater, to be compared with the effective values detected at the suspected site, in order to define the contamination level and the goal for the remedial action;

Framework Environmental Legislation issued on April 14th 2006: 6 sections (1. General, 2. Environmental Impact Assessment, 3. Soil and Water Protection and Management, 4. Waste Management and Soil Remediation 5. Air and Emissions, 6. Environmental Liability). The Title V under section 4 deals with contaminated sites clean-up activities.

Application of a risk-based tiered approach (similar to RBCA, ASTM procedure): Tier 1 = screening values (CSC) equal to the “limit values” set by DMoE n.471/99; Tier 2 = site specific target levels (CSR) calculated by the application of site-specific risk analysis (backward application) both for soil and groundwater

Single values proposed for GW (drinkable use), two values for soil (residential and commercial/industrial use); limit values proposed in Annex 1 for about 100 contaminants (inorganic compounds + organic compounds)

Site contaminated when even the concentration of a single pollutant is higher than the correspondig limit value set in Annex 1;

Application of the “polluter pays principle”: if measured concentrations exceed limit values (Annex 1) the responsible/owner of the site must submit a remediation project

Site specific target levels CSR (Concentrazioni Soglia di Rischio, Risk Treshold Levels) calculated by the application of a site specific risk (human health) analysis procedure.

Site contaminated when the measured concentration of a single pollutant is higher than the correspondig CSR calculated by site-specific risk analysis;

If the measured concentrations exceed screening values (CSC), site-specific risk analysis must be performed. If CSR values are exceeded, the responsible/owner of the site must submit a remediation project, otherwise monitoring action required.

Regulatory framework: Contaminated Sites - 2Decree of the MoE n. 471/99 Legislative Decree n. 152/06

Main Site Investigation

Measured Concentration > CSC (CSC = Screening Levels set by

DLgs 152/06 for soil and GW)

Measured Concentration < CSC (CSC = Screening Levels set byDLgs 152/06 for soil and GW)

Site NOT

CONTAMINATED

Site-Specific Risk Assessment(Human Health)

SSTLs calculation (CSR)

MeasuredConcentration > CSR

MeasuredConcentration < CSR

Action Required to reduce Risk (Clean-up, Exposure

Pathways Interruption)

Monitoring Plan

Main Site Investigation

Measured Concentration > CSC (CSC = Screening Levels set by

DLgs 152/06 for soil and GW)

Measured Concentration < CSC (CSC = Screening Levels set byDLgs 152/06 for soil and GW)

Site NOT

CONTAMINATED

Site-Specific Risk Assessment(Human Health)

SSTLs calculation (CSR)

MeasuredConcentration > CSR

MeasuredConcentration < CSR

Action Required to reduce Risk (Clean-up, Exposure

Pathways Interruption)

Monitoring Plan

Regulatory framework: Technical Procedure

first list set in 1998 (L. 426)

57 sites (last added at the end of 2008, “La Maddalena”)

more than 3% of the italian territory

about 34% water (sea, rivers, lagoons, lakes)

330.000 ha marine areas

procedure under responsibility of the Ministry of the Environment with the technical support of ISPRA and other relevant scientific institutes

National Priority List Sites

Data on NPL sites collected by ISPRA and available (in English) at http://annuario.apat.it/annuarioDoc_EN.php?idv=6&type=key

NPL Sites

Italian Legislation regulating the Contaminated Sites National Law:

426/98, 388/2000, L. 179/2002; Ministerial Decree 468/01

The NPL Sites are selected on the basis of• site general features • type and degree of contamination • environmental impact in terms of health and ecological hazard • impact on cultural and environmental heritage

Among the contaminated sites, 26 include a water body

The marine environment, through the groundwaters, the superficial hydrographic network and the sewage, is the final target of pollutants, both natural and anthropogenic. Approximately 1500 new synthetic substances are added to the environment yearly. Once arrived to the marine environment they may determine toxic effects, both on short and long term, and bioaccumulation, they may be transmitted along the trophic chain and determine deep modifications of marine ecosystem.

Marine coastal areas: the final target of contamination

Marine sediments are receptor/source of

contamination

Marine sedimentsare food for

detritivors and suspending feeders;

Detritus is at the base of the food chain

Marine sediments are the basic component of several habitatsHabitat (92/43/EEC; Art.1): “an environment defined by specific abiotic and biotic factors, in which the

species lives at any stage of its biological cycle”

Marine sediments: a basic component of the ecosystem

The environmental characterization of contaminated marine sites

The environmental characterization of marine areas included in the SIN is assigned by this ministerial decree to ICRAM (now ISPRA, Institute for the Environmental Protection and Research). An agreement defines times, modes and financial resources of single characterizations.

Italian Regulatory for the marine environmental characterization

Decree 152/99Such decree establishes, for sediment management, the discharge into the sea in absence of any other possible options

Ministerial Decree, January 24rth 1996Regulatory about the discharge into the sea of material from theexcavation of coastal land and marine sediments and any other kind of sediment movement in the marine environment.

Venice Muds Protocol, April 8th 1993The criteria of environmental safety for excavation, transport and re-use of muds from the Venice canals are established in this protocol The Venice Protocol is the first Italian regulatory which considers a sediment classification based on the degree of sediment contamination and the sediment re-use based on such classification

996

The Financial Law 2007 establishes the final destination of unpolluted and polluted material after removal (1/2)

Italian Regulatory for the environmental characterization

“dredging sediments having chemical, physical and microbiological features comparable with natural conditions (background values) may be discharged into the sea or re-used for works on land and beach nourishment”

Italian Regulatory for the environmental characterization

“Materials from dredging or reclamation, if not originally dangerous, or after treatment for pollutants removal, may be discharged into the Confined Disposal Facility (CDF)”

“If materials exceed the established values for pollutants, the reclamation of CDF area is required”

The Financial Law 2007 establishes the final destination of unpolluted and polluted material

after removal (2/2)

Regulatory framework: Environmental Liability - 1

Since 1986, as first Country in Europe, Italy Since 1986, as first Country in Europe, Italy has usedhas useda legal system devoted to the reparation of a legal system devoted to the reparation of

environmental damagesenvironmental damages

Law n. 349/1986, article 18 Law n. 349/1986, article 18 makes a civil action available to the public authorities with the purpose to achieve, the

recovery and/or the economic compensation of damages caused to natural resources by illegal activities,

before a judicial court.


Law n. 349/1986, article 18,Law n. 349/1986, article 18, refers to the pure damage

An environmental damage is defined asan impairment of natural resourcesan impairment of natural resources, regardless of the economic and moral

damages suffered by private or public subjectsLaw n. 349/1986, article 18,Law n. 349/1986, article 18, refers to the environment in the whole

Legal actions concern the damages caused to all all the the natural resourcesnatural resources

(soil, water bodies, atmosphere, habitat, species, landscape, ecosystems, etc.), without any selection of single categories of goods to be protected.


New Italian legal system

At present, the article 18 of the law n. 349/86 has been replaceAt present, the article 18 of the law n. 349/86 has been replaced by d by decree decree n. 152/2006, Part VI, article 299n. 152/2006, Part VI, article 299--318318, that introduced a new legal system of , that introduced a new legal system of environmental damages reparation, implementing european directivenvironmental damages reparation, implementing european directive e (2004/35/CE)... (2004/35/CE)...

BUTBUT

the law n. 349/86 still works in case of damages arising law n. 349/86 still works in case of damages arising fromfrom facts facts occurred occurred before 2006before 2006..

The new law of environmental damage reparation (decree n. The new law of environmental damage reparation (decree n. 152/2006)152/2006) works for the damages arising from works for the damages arising from

facts occurred after 2006facts occurred after 2006

This law set up new legal definitions, procedures and criteria fThis law set up new legal definitions, procedures and criteria for or the environmental damage assessment, also on the basis of the the environmental damage assessment, also on the basis of the european directive n. 2004/35/CE.european directive n. 2004/35/CE.

In particular, the environmental damage is defined as In particular, the environmental damage is defined as

an an impairmentimpairment significant and significant and measurable that measurable that directly or indirectly occurs to a natural resource or directly or indirectly occurs to a natural resource or

to a service given by a natural resourceto a service given by a natural resource

The new law: Decree n. 152/2006

There is a strict liability:There is a strict liability:

in case of damages to living species and natural habitats subjecin case of damages to living species and natural habitats subject to t to special protection, special protection,

in case of a land contamination that creates a significant risk in case of a land contamination that creates a significant risk for the for the human health and human health and

in case of impairment of the ecological, the chemical or the quain case of impairment of the ecological, the chemical or the qualitative litative status of a water body. status of a water body.

In these cases the Ministry of the environment has to ensure conIn these cases the Ministry of the environment has to ensure concrete crete measures of reparation of the damage instead of an economic measures of reparation of the damage instead of an economic compensation. compensation.

IIt is maintained a byt is maintained a by--fault liability in all the other cases of fault liability in all the other cases of environmental damagesenvironmental damages

Major innovations in comparison with the previous law

TThe damage reparation can be claimed by the Ministry the damage reparation can be claimed by the Ministry thhrough a legal rough a legal action before a Tribunal or, directly, taction before a Tribunal or, directly, thhrough a selfrough a self--executing orderexecuting order..

Major innovations in comparison with the previous law

TThe reparation is established by reference to he reparation is established by reference to

the the pprimary remediationrimary remediation (the measure that returns the damaged (the measure that returns the damaged natural resources or services to the baseline condition), natural resources or services to the baseline condition),

the the complementary remediationcomplementary remediation (the measure that produces an (the measure that produces an equivalent level of natural resources or services when the primaequivalent level of natural resources or services when the primary ry remediation is totally or partially impossible) and remediation is totally or partially impossible) and

the the compensatory remediationcompensatory remediation (the additional improvements that (the additional improvements that compensate the temporary losses of natural resources or servicescompensate the temporary losses of natural resources or servicesfrom the date of damage). from the date of damage).

Also in this new legal frame the Ispra is asked to supply the Ministry with its support and to ensure an

environmental damage assessment according to the current rules.

The “global transactions”: Law 13/2009

TThe recent law 13/09 (February 2009) states the possibility for the recent law 13/09 (February 2009) states the possibility for the he MoE to sign one or more MoE to sign one or more ““global transactionsglobal transactions”” with one or more with one or more public/private companies to cover remediation, restoration and public/private companies to cover remediation, restoration and environmental damage costs. The scheme of the environmental damage costs. The scheme of the ““global transactionglobal transaction””is developed by the MoE with the technical support of ISPRA and is developed by the MoE with the technical support of ISPRA and COVIS (Commission of the MoE) and approved by the stakeholders COVIS (Commission of the MoE) and approved by the stakeholders and the juridical defence of the State (and the juridical defence of the State (““Avvocatura dello StatoAvvocatura dello Stato””).).

Tha amount paid for the Tha amount paid for the ““global transactionglobal transaction”” cover the remediation, cover the remediation, restoration and environmental damage costs and any other pendingrestoration and environmental damage costs and any other pendingaction for the facts included in the transaction.action for the facts included in the transaction.

The funds recovered through the The funds recovered through the ““global transactionglobal transaction”” are used are used according to the indication given by decree by the MoE, in agreeaccording to the indication given by decree by the MoE, in agreement ment with the Ministry of the Economy.with the Ministry of the Economy.

The areas involved in the transaction can be used, according to The areas involved in the transaction can be used, according to the the urban plans, if the use does not hinder remediation activities aurban plans, if the use does not hinder remediation activities and/or nd/or the activities detailed in the transaction itself.the activities detailed in the transaction itself.

Regulatory framework: Legal Civil Action

••The legal civil action can be promoted by the The legal civil action can be promoted by the Ministry of the Ministry of the environmentenvironment and, secondarily, to the and, secondarily, to the relevant local public authoritiesrelevant local public authorities;;

••Such actions can be promoted before a Such actions can be promoted before a civil courtcivil court or a or a criminal court;criminal court;••Criminal courts apply when damage is caused by an activity that Criminal courts apply when damage is caused by an activity that represents a crime prosecuted by Public Accusationrepresents a crime prosecuted by Public Accusation

CRIMINAL COURT PROMOTIONCRIMINAL COURT PROMOTION

action directed to apply a sanction (imprisonment or fine)

concurrent action directed to ensure the reparation of the damage.

Public Accusation Ministry of Environment

Note: In case of condemnations judgment, compensation amounts are transferred to a a public fund, whose resources are used to remediate the contaminapublic fund, whose resources are used to remediate the contaminated sitested sites.

The different roles of public authoritiesParticipation to the criminal trial

3. asks a technical support

ISPRA

MINISTRY OF ENVIRONMENT2. sends THE LIST OF

CHARGESInstitution entrusted with the juridical defence of the State

(“Avvocatura dello Stato”)

TRIBUNAL1. sends the LIST OF CHARGES

4. sends a PRELIMINARY REPORT (ISPRA assesses if there is an environmental damage, its

size, the critical issues and the possible criteria of

compensation)

6. STARTS ACTION OF DAMAGE REPARATION

5. reaches the decision

before the judge declares the opening of public

debate

The different roles of public authoritiesAction in the criminal proceedings

7. asks a technical support

ISPRA

8. sends a DEFINITIVEREPORT (definitive technical

evaluation of the damage and the appraisal of the compensation to

claim )

MINISTRY OF ENVIRONMENT

6. STARTS ACTION OF DAMAGE REPARATIONInstitution entrusted with the

juridical defence of the State(“Avvocatura dello Stato”)

TRIBUNAL

9. exhibites THE DEFINITIVE REPORT

A similar procedure is followed in case of A similar procedure is followed in case of

action promoted before a civil courtaction promoted before a civil court

The different roles of public authoritiesAction in the civil proceedings

...the Ministry of the environment ...the Ministry of the environment decides to promote the action regardless decides to promote the action regardless of the current enquiry of the Public of the current enquiry of the Public Accusation Accusation

... ISPRA directly develops ... ISPRA directly develops the report to be exhibited the report to be exhibited before the civil courtbefore the civil court

In this situation...In this situation...

SOURCE DAMAGE ANALYSIS

(phase 1)

ECONOMIC APPRAISAL

(phase 3)

Framing the activities that caused the

damage

Appraisal for damage compensation

TECHNICAL AND SCIENTIFIC EVALUATION

(phase 2)

Operative phases

Natural Resource and Service Damage

evaluation and measurement

COST-BASED VALUATION APPROACHES

DEFENSIVE (OR MITIGATION) COST METHOD (DCM)

Represents the first actions to fully repair an injured resource. It is a component of primary remediation costs. The aim is not to restore lost utility, but to limit the loss. Defensive costs may be equivalent to primary remediation costs if damage is not restorable through human intervention and is irreversible through natural recovery processes (attenuation). [In the US, defensive costs include assessment costs (Ofiara, 2002)]

REMEDIATION COST METHOD (RCM)

Represents the costs necessary to eliminate the loss of utility from environmental damage by restoring injured natural resources to their baseline condition. Requires the identification of a best remediation technology (National Oceanic and Atmospheric Administration, 2000; Ofiara, 2002; Touaty and Giè, 2004; World Bank, 1998).

SURROGATE COST METHOD (SCM)

Method to estimate damage that is only partially restorable (Di Cocco, 1960; Garrod and Willis, 1999; Michieli and Michieli, 2002; National Oceanic and Atmospheric Administration, 2000). The approach depicts the costs necessary to substitute non-restorable injured natural resources with other goods that provide the same services and utility. Because the method applies to services not traded in the market, but for which private goods can substitute, the applicability of the method depends on the degree of restorability of the damaged natural resource.

AVOIDED COST METHOD(ACM)

Represents costs involved in preventing the damage. The assumption is that the cost of conserving natural resources and services is a reasonable estimate of their value. Typically, averting expenditures are utilized. These measure how much people are willing to pay to avoid or protect themselves from a decrease in environmental quality.

Source: Adapted from APAT (2006) and European Commission (2001)

Main Technical Documents and Guidelines developed by ISPRA (former APAT)

Guidelines for Risk Assesment at contaminated sites (last rev.2 March 2008)- in cooperation with ARPAs-ISS-ISPESL-ENEA et al.

Database of Chemico-Phisical and Toxicological Characteristics of the contaminants (in cooperation with ISS and ISPESL)

Guidelines for development of Background Values for Soil and GW

Guidelines for freshwater sediment quality assessment

Technical Protocol for In Situ Chemical Oxidation

Screening Matrix for remediation technologies selection

Handbook for contaminated sites characterization

Available (in ITA) at:

http://www.apat.gov.it/site/it-IT/Servizi_per_l'Ambiente/Siti_contaminati/

Conclusive Remarks

Contaminated Sites Management represents one of the major institutional tasks and challenges for the new ISPRA

Both technical and operational activities are carried out by the new bornt inistitute

The complexity of the regulatory framework (now pending revision) and the lack of clear technical indications on characterization, risk assessment and remediation bring to time (and money!) consuming legal actions in the field of contaminated sites: the development of guidelines and standards will hopefully help to reduce this actions between P.A. and private companies

Detailed technical indications cannot be included in the legislation in any case since in this field scientific and technical progress is very fast and guidelines/protocols need to be frequently updated. In this sense ISPRA is assuming an important role by developing and updating guidelines and protocols that are widely used as technical support by both P.A. and private stakeholders.

Aknowledgments

Thanks to:

the colleagues of the Environmental Liability Unit for part of this presentation.

the colleagues of the Contaminated Sites Unit for their work

the colleagues of the Ministry of the Environment for their cooperation and support