Simplification Bis Decree: main innovations on contaminated sites’ reclamation and the possibility of their optimization

Prepared by Energy Team

Last 30 July 2021, Law no. 108 of July 29, 2021 was published in the Official Gazette (no. 181 of 30 July 2021), which converted, with amendments, Decree-Law no. 77 of 31 May 2021 concerning the “Governance of the National Recovery and Resilience Plan and initial measures to strengthen administrative structures and accelerate and streamline procedures” (the “Simplifications Bis Decree”).

The Simplifications Bis Decree introduced, inter alia, significant innovations in the environmental field, with the main purpose of “speeding up the procedures for the reclamation of contaminated sites and the reconversion of industrial sites to be used for the implementation of the projects identified in the National Recovery and Resilience Plan (the “PNRR”)”.

The Simplification Bis Decree contains several provisions regarding the environment and the landscape, all of which are contained in Part II, Title I, under the heading “Ecological transition and speeding up of environmental and landscape procedures”.

In this context, reclamation can make an important contribution to the transition from a linear development model based on the consumption of energy and natural resources, to an economy centred on the innovation of transformation, and above all on the recovery, regeneration and re-use of natural resources and goods produced.

Therefore, in order to accelerate and simplify the reclamation and reconversion of industrial sites’ procedures, the Simplification Bis Decree provides, in art. 37 entitled “Simplification measures for the reconversion of industrial sites”, rather incisive changes to the regulations provided for by articles 241, 242, 242-ter, 243, 245, 248, 250, 252 and 252-Bis of Legislative Decree no. 152 of 2006 (the “Environmental Code”).

The main changes introduced are described below.

Agricultural areas’ reclamation (art. 241)

Article 241 of the Environmental Code, in principle, consisted of a single paragraph that referred to a future regulation the  reclamation’s discipline, environmental restoration and safety measures of areas intended for agricultural production and livestock farming, a regulation then introduced with Ministerial Decree no. 46 of 2019 on “Measures relating to reclamation, environmental restoration and safety measures, emergency, operational and permanent, of areas intended for production and livestock farming” (“D.M. 46/2019”).

However, the D.M. 46/2019 applies only to areas actually intended for agricultural production and livestock breeding and does not regulate the reclamation of areas that are intended for agricultural use on the basis of urban planning instruments, but which in practice are not intended for any activity, whether agricultural, livestock breeding, industrial, commercial or residential.

In this sense, the Simplification Bis Decree, through the introduction of paragraph 1-Bis to art. 241, focuses on the actual use of the areas for agriculture or breeding, specifying that:

In case of areas with agricultural use according to urban planning tools but not used, at the date of entry into force of this provision, for at least ten years, for agricultural production and livestock farming, the procedures of this Title and the contamination threshold concentrations (CSC) provided in Table 1, columns A and B, of Annex 5, identified taking into account the activities actually conducted within the areas are applied. In the absence of commercial and industrial activities, column A applies. The provisions of this Title are also applied in all other cases in which the regulations referred to in paragraph 1 do not apply”.

Summing up, therefore, whenever the area is classified by the urban planning instruments as agricultural, but is not actually used for that purpose, for the purposes of the reclamation procedure of such areas the ordinary provisions (art. 239 and following) for the contaminated sites’ reclamation will be applied and the reference table for the determination of the CSC will be the one in Annex 5 to Part IV, Title V of the Environmental Code, taking into consideration column A (public, private and residential green areas) or B (commercial and industrial use) depending on the actual activity carried out within the area.

“Ordinary” reclamation procedure (art. 242)

The Simplifications Bis Decree has introduced some significant changes to art. 242 of the Environmental Code relating to the operational and administrative procedure of “ordinary” reclamation, with the aim of giving certainty to the timeframes for carrying out reclamations, as well as facilitating the necessary activities for its certification.

In particular, the Simplification Bis Decree introduces the following innovations:

  • with the approval measure of the reclamation or safety interventions’ operating project, operational or permanent, are established also (i) intermediate verifications for the assessment of the effectiveness of the reclamation technologies adopted and (ii) verification activities in progress necessary for the certification of the reclamation (art. 242, paragraph 7);
  • possibility, in the case of early achievement of the reclamation objectives for the matrices of soil, subsoil and backfill materials compared with those envisaged for the water table, of obtaining partial certification pursuant to art. 248 limited to the environmental matrices already subject to reclamation (art. 242, paragraph 7-Bis);
  • introduction of an administrative procedure for the definition of the background values (valori di fondo) in the hypotheses in which the reclamation procedure concerns a site in which, due to natural or anthropic phenomena, the concentrations detected exceed the level of the contamination threshold concentrations (CSC) referred to in columns A and B of table 1 of attachment 5 to Title V of Part IV of the Environmental Code (art. 242, paragraph 13-ter).

Interventions and works in sites subject to reclamation (art. 242-ter)

Art. 242-ter of the Environmental Code, introduced by Legislative Decree no. 76 of 2020 (the “Simplifications Decree”), had already allowed the construction of certain interventions and works within remediated sites (e.g.  plants and infrastructures’ ordinary and extraordinary maintenance, construction of linear works of public interest, construction of plants for the production of energy from renewable sources), provided that such interventions and works are carried out without prejudicing or interfering with the execution and completion of the remediation.

The Simplification Bis Decree has made the following changes to the above-mentioned regulation:

  • the works and interventions that can be carried out at sites undergoing reclamation also include the projects envisaged by the PNRR (art. 242-ter, paragraph 1). The same draft decree implementing Directive 2018/2001 (“RED II”), in art. 20, paragraph 8, provides that are considered suitable “the areas of the sites subject to remediation identified pursuant to Title V, Part Four, of Legislative Decree 3 April 2006, n. 152”. In this sense, based on our experience, it will be necessary to take care of the application in detail so that it can be immediately considered eligible;
  • the provisions on the interventions and works to be carried out in the sites subject to reclamation will also be applied for the realization of works that do not involve excavations but entail permanent occupation of the ground, provided that the characterization has already been carried out on the site subject to reclamation (art. 242-ter, paragraph 1-Bis);
  • for the definition of the background values, the procedure referred to in Article 11 of Presidential Decree 120/2017 on “Simplified regulation of the management of earth and excavated rocks” is applied, in order to make immediately usable for new investments the areas that are not contaminated but are characterized by the natural presence of certain elements (art. 242-ter, paragraph 4-Bis).

Management of groundwater discharged (art. 243)

Art. 243 of the Environmental Code provides for provisions on the management of discharged water. In this sense, the Simplification Bis Decree has provided that:

  • the water treatment – aimed at reducing the mass of pollutants in the groundwater – must be carried out also in case of use in the production cycles operating on the site;
  • the terms for the authorization for discharged water’s release are halved in order to guarantee the timeliness of safety, emergency and prevention interventions.

Procedure for identifying the responsible party for the contamination (art. 245)

Art. 245 of the Environmental Code regulates the obligation to intervene and notify by the non-responsible party for the potential contamination of a site, as well as the procedure to be followed to identify the responsible party for the contamination, who is the only party obliged by law to carry out reclamation interventions (without prejudice, however, to the right of the non-responsible party to implement reclamation interventions spontaneously).

Precisely with regard to the procedure aimed at identifying the party responsible for the contamination, the Simplification Bis Decree has provided that this procedure must be interrupted if the non-responsible party voluntarily carries out the characterization plan within six months from the approval or communication pursuant to art. 252, paragraph 4, of the Environmental Code.

In this case, the procedure must be concluded within the peremptory term of sixty days from receipt of the characterization’s results, validated by the competent ARPA.

Controls and certifications (art. 248)

Art. 248 of the Environmental Code contains provisions regarding controls on the compliance of interventions with the approved projects by the Province and ARPA, as well as regarding the certification – adopted by the competent Province – of the completion of reclamation interventions, permanent or operational safety measures and the compliance of such interventions with the approved project on the basis of a technical report prepared by ARPA.

Art. 248, as amended by the Simplification Bis Decree, provides that:

  • the inspections carried out by the authorities must also be carried out in relation to compliance with the timeframes for carrying out reclamation works
  • If the Province does not provide for the release of the certification of completion of the reclamation within thirty days from the receipt of the technical report by ARPA, the substitutive power of the Region is foreseen, which provides for it within the following sixty days after a formal notice to comply;
  • it is possible to obtain the certification of partial reclamation if the objectives identified for the environmental matrices of soil, subsoil and landfills are achieved in advance of those provided for the water table. The certification must be adopted at the outcome of the technical checks referred to in the new paragraph 7-Bis of art. 242 of the Environmental Code.

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Tommaso Tomaiuolo

PwC TLS Avvocati e Commercialisti