Environment code and environmental crime

aperturaThe environment code (D.Lgs.n° 152 of 3/4/2006 and later modifications) and, above all, the new law on environmental crime, approved in May this year, bring Italian regulations into line with European ones and are step forward in suitably protecting the world around us. This is a very sensitive issue that will certainly have significant effects on yachting.

 

The Environment Code (directly inspired by the Hague Convention and by various European directives on environmental prevention and pollution reduction) is a special regulation that will discipline specifically and with greater legal power compared with ordinary law all aspects linked to environmental protection. It represents Italian and Community legislation to fight pollution and attribute environmental responsibility. In particular, the Code defines the procedures for the various evaluations and authorisations (strategic environmental evaluation, VAS, evaluation of environmental impact, VIA, integrated environmental authorisation, IPPC). In addition, for the management and treatment of refuse, it introduces the SISTRI traceability system (which traces the path of all refuse in every stage). The third, fourth and fifth parts of the regulation contain provisions for protection and combating pollution while the sixth part, which is very important, deals with compensation for environmental damage.

Sanctions in the Environment Code

Already in its general principles the Environment Code introduces the concept of “those who pollute, pay”. This responsibility can be defined as “extended” for the producer and is intended by the legislator first of all as an economic instrument to encourage greater efficiency in the use of resources. With this concept, the responsibility of the producer is extended also to the post-consumer phase, that is to the entire life-cycle of the product, thus making all involved responsible also for collection, recycling and final disposal of their products. The regulation, besides laying down sanctions for the abandoning and uncontrolled depositing of refuse on or under the land or its introduction into surface or underground water, makes it obligatory to remove and recover refuse and also to reclaim the site, regardless of whether the violation is malicious or blameworthy. Another essential factor in prevention and intervention in the case of risky situations is also the definition of the figure of the “operator”, that is any physical or juridical, public or private subject that carries out or controls a professional activity of environmental importance. These persons have the greatest responsibility: they must adopt, within 24 hours and at their own expense, the measures needed for prevention and making safe when there is an imminent threat of environmental damage. If damage has already been done, the Ministry of the Environment will decide what measures should be taken. The operator, if responsible, will have to bear the cost of these measures.

The new section in the Penal Code

With law n°68 of May 22, 2015 the new concept of “environmental crime” has been introduced into the Penal Code. It aims to extend the laws to cover one or more specific crimes that were not previously covered. Thus it is not a special law, but an ordinary law that introduces four new crimes: a) environmental pollution; b) environmental disaster, c) trafficking in or abandoning highly radioactive material, d) impeding controls. The new provisions on the one hand complete penal discipline and on the other integrate substantial environmental law. In addition, differences introduced between pollution and environmental disaster: the former is a deterioration that may be reversed, the second is not. Even if it is not clear if there is a difference between environmental damage and environmental pollution, the new provision extends the scope of such situations and, most importantly, increases the penalty if the damage is caused in a natural protected area or one with landscape or environmental constraints or if damage is caused to protected species. In addition, some penalties are increased (for example, in prison and in the case of death or personal injury as unintentional consequences of the event or of failure to reclaim). There is also the environmental aggravating circumstance, an increase of the penalty when another kind of crime is committed in order to commit one or more of the environmental crimes defined by this section of the Penal Code or by the Environmental Code. It is also important to note that, as already laid down by the Environmental Code, impeding environmental vigilance and control activities also becomes a crime. Finally, the case of trafficking in or abandoning highly radioactive material, which was not previously contemplated, is also covered.

Some examples will make the impacts clearer

Current environmental regulations and also the recent modifications to the Penal Code (environmental crime) oblige those who work on boats to respect all the provisions of the law, including those relating to the limits of emission of polluting agents into the atmosphere. Thus some operations cannot be carried out in the open but only in specially prepared structures with the required abatement systems. Again: boatyards in coastal areas, even under concession, are subjected to the constraints that protect these areas, and so may have to deal with very restrictive constraints which, for example, forbid the construction of traditional fixed sheds. But the major problem for existing structures is above all what the code lays down for protecting and reclaiming the soil and subsoil and, obviously, the obligation to make safe situations at risk. In fact cases of controls that have shown the existence of situations that do not conform to the law have become increasingly frequent in the recent past. An example is what happened in April 2015 in the upper Adriatic, where several boatyards, even small ones, were visited and inspected by the harbourmaster and the Arpa. These inspections and later analyses led to reports being made followed by surveys because of “potentially polluting operations”. With, inevitably, fines and even confiscation.

 

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