Environment, Pollution of groundwater in contaminated sites, Regional Court of Administrative Justice of Trento, Section One, Judgment of 11.15.2019 n. 154
Pollution – Environmental Pollution – Consequences pursuant to Articles 242 and 245, Legislative Decree no. 152 of 2006 – Differences – Ratio.
Pollution – Environmental Pollution – Pollution Manager – Detection.
Pollution – Environmental pollution – Pollution of groundwater in contaminated sites – Article 243, paragraph 1, Legislative Decree no. 152 of 2006 – Scope of application.
The difference between the discipline set by art. 242, Legislative Decree no. 152 of 2006, which foresees that the person in charge of the pollution has the obligation to put in place the operational and administrative procedures aimed at preventing the risks of pollution (paragraph 1) and to implement the remediation and safety measures (paragraph 7), and that set by the following art. 245, which envisages a mere faculty to put in place these procedures for the other interested parties, including the owner or manager of the area, not responsible for the pollution, without prejudice to the obligation of these to “implement the measures of prevention ”pursuant to art. 240, paragraph 1, of the same legislative decree n. 152 of 2006, is explained because the obligation of reclamation of contaminated sites rests on the person responsible for the pollution on the basis of the “polluter pays” principle and not on the owner or manager of the area, not responsible for pollution, in chief to which a sort of objective responsibility cannot be configured.
Article. 244, Legislative Decree no. 152 of 2006 refers only to the person responsible for the pollution as a recipient of the reasoned warning order, without mentioning the owner or manager of the area not responsible for the pollution, consistently, the art. 245, which governs the position of “persons not responsible for the potential contamination”, does not refer to the power of ordinance pursuant to art. 244; however, the competence of the Ministry of the Environment and the Protection of the Territory and the Sea remains firmly to impose the implementation of the prevention measures pursuant to art. 240, paragraph 1, lett. i), of the same legislative decree, even if through the exercise of the different power provided by the art. 304, paragraph 3, legislative decree n. 152 of 2006.
Article. 243, paragraph 1, legislative decree n. 152 of 2006 – in providing that to prevent and stop groundwater pollution in contaminated sites “the best available techniques must be identified and adopted to eliminate, even by treatment according to the provisions of article 242, or isolate sources of contamination direct and indirect ”- refers to the site where the source of the contamination is located and not to the site that is polluted due to groundwater flow.
Source Administrative Justice
