Environment, Discipline of reporting material matrices – interpretative clarifications, Ministry of Environment

Subject: Discipline of reporting material matrices – interpretative clarifications, Circular of the General Manager prot 0015786 of 10 November 2017

With reference to the regulation of reporting matrix materials and to the use of these materials, also taking into consideration the new provisions on the matter contained in the Presidential Decree of 13 June 2017, no. 120, the regulation laying down the simplified regulation of the management of excavated earth and rocks, in accordance with article 8 of the decree – law 12 September 2014, n. 133, converted, with amendments, by law 11 November 2014, n. 164, the present circular intends to provide the Administrations with guidance clarifications in order to standardize the administrative action.

I. Definition and legal qualification of reporting materials. The innovations introduced by the DPR 120/2017

The problem of interpretation on nature and, therefore, on the management of reporting materials has pushed the national legislator to intervene on the subject on multiple occasions.

With the intention of clarifying certain aspects of doubtful interpretation, it seems useful, first of all, to consider the definition of “reporting matrix matrices” necessary to identify, subsequently, the legal regime to be applied to the management of such materials.

The article 185, paragraph 1, of the legislative decree 3 April 2006, n. 152, entitled “Exclusion of the scope”, states that “They do not fall within the scope of the fourth part of this decree: [omissis]

b) the land (in situ), including the unexcavated contaminated soil and the buildings permanently connected to the ground, without prejudice to the provisions of Articles 239 and ss. regarding the reclamation of contaminated sites;

(c) uncontaminated soil and other naturally occurring material excavated in the course of construction activities, where it is certain that it will be reused for construction purposes in the natural state and on the site where it was excavated; [omissis] “.

The aforementioned Article 185 was subsequently subject to regulatory measures. In fact, the decree l egge January 25, 2012, n. 2, converted with amendments by the law n. 28 of 24 March 2012, article 3, entitled “Authentic interpretation of Article 185 of Legislative Decree n. 152 of 2006, provisions on reporting material matrixes and further provisions on waste “, clarified that” Without prejudice to the regulation on the remediation of contaminated soils, the references to “soil” contained in Article 185, paragraphs 1, letters b) and c), and 4, of the legislative decree 3 April 2006, n. 152, are interpreted as referring also to the reporting material matrixes referred to in Annex 2 to Part IV of the same legislative decree, consisting of a heterogeneous mixture of anthropogenic material, such as residues and production and consumption waste, and soil , which composes a specific stratigraphic horizon with respect to the natural geological and stratigraphic characteristics of the land in a given site, and used for the realization of fills, surveys and reinterries “.

In essence, Article 3, paragraph 1, of the D.L. 2/201 2 provides the definition of “reporting materials matrixes”, highlighting the legislator’s desire to equate, with the occurrence of particular conditions, land carry-over materials with consequent application of Article 185, paragraph 1, of Legislative Decree no. 152/2006.

In the same sense of the aforementioned regulatory framework, the new Presidential Decree 120/2017 lays down. Specifically, article 4, paragraph 3, concerning the criteria for qualifying excavated earth and rocks as by-products, establishes that in cases where excavated earth and rocks contain reloading materials, the component of anthropogenic materials mixed with materials of natural origin may not exceed the maximum quantity of 20% by weight. In addition to compliance with the environmental quality requirements referred to in paragraph 2, letter d), the aforementioned article 4, paragraph 3, provides that the reporting material matrices are subjected to the transfer test, carried out according to the methods set out in the Annex 3 of the Decree of the Minister of the Environment of 5 February 1998 on “Identification of non-hazardous waste subject to simplified recovery procedures”, for the relevant parameters, excluding the asbestos parameter, in order to ensure compliance with the contamination of groundwater, as per Table 2, Annex 5, to Title 5, of Part IV, of Legislative Decree 3 April 2006, n. 152, or, in any case, of the natural background values ​​established for the site and approved by the control bodies.

Article 24, paragraph 1 of Presidential Decree 120/2017, which regulates the use of land and rocks in the production site excluded from the waste regulations, provides that for the purposes of exclusion from the scope of this legislation, the excavated earth and rocks must comply with the requirements of article 185, paragraph 1, letter c), of the legislative decree 3 April 2006, n. 152, and, in particular, must be used at the production site. The law in question also provides that, without prejudice to the provisions of Article 3, paragraph 2, of the Decree – Law of 25 January 2012, n. 2, converted, with amendments, by law March 24, 2012, n. 28, non-contamination is verified pursuant to annex 4 of the same Presidential Decree.

II. Reference regulatory framework for management

In order to find the legislation regarding the management of the reporting material matrices, it is necessary to look at article 3 of the decree – law 25 January 2012, n. 2, converted, with amendments, by law March 24, 2012, n. 28, as amended by Article 41, paragraph 3, of the Decree Law of 21 June 2013, n. 69, converted, with amendments, by law 9 August 2013, n. 98.

Article 3, paragraph 2, of the aforementioned decree – law states that “for the purposes of Article 185, paragraph 1, letters b) and c) of Legislative Decree n. 152 of 2006, the reporting matrix materials must be subjected to a disposal test carried out on granular materials pursuant to article 9 of the Decree of the Minister of the Environment of 5 February 1998, published in the ordinary supplement to the Official Gazette of 16 April 1998, n. 88, for the purposes of the methods to be used to exclude risks of contamination of groundwater and, where they comply with the limits of the transfer test, must comply with the provisions of current legislation on the remediation of contaminated sites “.

On the other hand, article 3, paragraph 3, of the same decree – law also provides that “the reporting material matrices that do not conform to the limits of the transfer test are sources of contamination and as such must be removed or must be made compliant with the limits of the transfer test through treatment operations that remove the contaminants or must be subjected to permanent securing using the best available techniques and at sustainable costs that make it possible to use the area according to the urban destination without health risks “.

The article 26 of the DPR n. 120/2017 regulates the use of excavated earth and rocks produced by excavation activities within a site subject to reclamation, establishing that such use is always permitted provided that compliance with the contamination threshold concentrations is guaranteed for the specific intended use or natural background values. If the use of excavated earth and rocks is included in an approved reclamation project, the provisions of article 242, paragraph 7, of the legislative decree 3 April 2006, n. 152. In cases where excavated earth and rocks do not conform to the contamination threshold concentrations or background values, but are lower than the risk threshold concentrations, they may be used on the same site under the conditions laid down in the aforementioned Article 26, 2, letters a) and b), to which reference should be made.

This provision is in line with the provisions of Article 34 of the Decree Law 12 September 2014, n.133, converted with amendments by the law of 9 August 2013, n. 98. In particular, paragraph 9 of article 34 states that “The re-use in situ of the materials produced by the excavations is always allowed if they are guaranteed to comply with the contamination threshold values ​​/ background values”.

Therefore, in the event that the materials produced by the excavations comply with the contamination threshold values ​​/ background values, and therefore do not appear to be contaminated, re-use is still permitted in situ and they are also excluded from the waste regulatory regime pursuant to Article 185, paragraph 1, letters b) and c), d. lgs. 152/2006.

Article 34, paragraph 10, of the decree – law n. 133 of 2014, states that “Land not complying with the contamination threshold values ​​/ background values, but lower than the risk threshold concentrations, may be re-used in situ with the following requirements:

a) the risk threshold concentrations, following the risk analysis, are previously approved by the ordinarily competent authority, by calling a special service conference. Land that complies with the risk threshold concentrations is reused in the same area subject to risk analysis;

b) if for the calculation of the risk threshold concentrations the leaching path in the stratum has not been taken into consideration, the use of excavated land is allowed only if physical or hydraulic barrier systems are active in the reuse area efficiency and effectiveness are proven. ”

III. Management of excavated earth and rocks containing carrying materials

From the examination of the normative framework described, it is clear that:

a) excavated earth and rocks containing reporting matrix materials within the limits referred to in Article 4, paragraph 3 of Presidential Decree no. 120/2017, which are compliant with the sale test and are not contaminated, can be managed as by-products;

b) the excavated earth and rocks containing uncontaminated carryover matrix materials and conform to the transfer test according to article 3, paragraph 2, of the decree – law n. 2 of 2012 can be reused on site in compliance with the provisions of Article 24 of Presidential Decree no. 120/2017.

c) excavated earth and rock containing contaminated materials matrixes that do not comply with the transfer test according to paragraph 3 of article 3 of the decree – law n. 2 of 2012, in relation to the subsequent regulatory interventions represented by article 34, paragraphs 9 and 10, of the decree – law n. 133 of 2014 and of article 26 of Presidential Decree no. 120/2017 are sources of contamination.

In this case, pursuant to art. 3 paragraph 3 of Decree Law 25/2012, the reporting materials that are not compliant with the limits of the assignment test must, alternatively and not cumulatively, be:

1) removed;

2) subjected to permanent securing using the best available techniques and at sustainable costs that allow the use of the area according to the urban destination without health risks.

3) made compliant with the limits of the transfer test through treatment operations that remove contaminants;

The removal of the source of contamination referred to in point 1) occurs through reclamation. In accordance with article 240, paragraph 1, letter p) of Legislative Decree no. 152 of 2006, for “reclamation” must be understood “the set of interventions aimed at eliminating the sources of pollution and pollutants or reducing the concentrations of the same in the ground, in the subsoil and in groundwater at a level equal to or lower than values ​​of risk threshold concentrations (CSR) “. Considered, then, that the paragraph 1 of article 3 of the decree – law n. 2 of 2012 maintains the regulation of remediation, and in this case, the operational security is also applicable, using the conditions established by law. Finally, considering that Article 240, paragraph 1, letter n), of Legislative Decree no. 152 of 2006 defines “operational safety” as: “the set of interventions carried out on a site with activities in operation to ensure an adequate level of safety for people and the environment, pending further interventions in permanent security or reclamation to be carried out upon cessation of activity. They also include the contamination containment interventions to be put in place on a transitory basis up to the execution of the reclamation or permanent securing, in order to avoid the spread of contaminations within the same matrix or between different matrices. In such cases, suitable monitoring and control plans must be set up to check the effectiveness of the solutions adopted “.

Therefore the activities referred to in point 2) must be undertaken in all those cases in which the legislation on remediation provides for the applicability of permanent security.

The activities referred to in point 3), however, should be undertaken in the case where the soil is excavated and for the purposes of its possible subsequent use, the conditions for management as a by-product or for re-use on site, pursuant to respectively, of articles 4, paragraph 3, and 24, paragraph 1, of Presidential Decree no. 120/2017. In such cases, the “treatment” of such matrices is envisaged, which pursuant to Article 183, paragraph 1, letter s), of Legislative Decree no. 152 of 2006 consists of all those “recovery or disposal operations, including preparation before recovery or disposal”.

In a nutshell, therefore, in the case where the materials used to carry out the materials comply with the contamination threshold values ​​/ background values, and therefore do not appear to be contaminated, re-use in situ is always permitted.

If a source of contamination is present in the filler matrixes, it is necessary to eliminate this source of contamination and not the entire fill material matrix before being able to re-use the fill material in situ.

Source Ministry Environment

 

Circolare Ministero Ambiente del 10 novembre 2017