A new Spanish Law on air pollution has been published and is likely to lead to increasingly strict controls on air emissions for many sectors.

There has been a tendency in the last few years to view all environmental ills in terms of their contribution to climate change. However, the protection of air quality and the earth's atmosphere have continued to be seen as significant policy objectives in their own right because of their direct impact on human health.

In Spain, Law 38/1972 on the Protection of the Atmosphere provided the first significant step towards addressing air pollution problems by enabling objectives to be set on air quality and emissions restrictions, and reducing pollution (in particular sulphur dioxide) from both fixed and mobile sources. Integrated environmental authorisation ("Autorización Ambiental Integrada") under Law 16/20021 which implements the EU IPPC Directive has also begun to help address air pollution problems. However, despite the progress made through these laws, further legislation has been called for to provide additional measures given persistent air quality problems, particularly in densely populated urban areas in Spain. As a result, Law 34/2007 on air quality and the protection of the atmosphere was published on 17 November 2007, ("Ley de calidad del aire y protección de la atmósfera" or "LCAPA"). The aim of LCAPA is to consolidate protection in relation to air quality based on the following principles: (i) taking preventive steps using the precautionary principle; (ii) remedying pollution problems at source; and (iii) the "polluter pays". Under LCAPA, the owners of installations where potentially air-polluting activities are carried out are required to comply with a number of administrative obligations relating to their operations as set out below.

Authorisation

The most highly polluting industries are subject to integrated environmental authorisation ("Autorización Ambiental Integrada") and regulated under Law 16/2002 implementing the EU IPPC Directive. This Law governs not only air quality but other emissions and discharges and energy efficiency requirements. LCAPA is intended to introduce control for certain lesser polluting activities which are not covered by Law 16/2002. LCAPA only governs such additional activities in relation to their air emissions.

Interestingly, LCAPA has been drafted to include a number of industrial activities that must be covered by integrated environmental authorisation and to this extent creates a significant amount of duplicated control. However, it is understood that the authorities will only require an integrated environmental authorisation for such plants and not an additional LCAPA authorisation. This does mean, however, that one has to look at Law 16/2002 first to understand whether, in fact, LCAPA will apply. So for example:

  • Whilst in theory covered by LCAPA, petrol refineries, large scale combustion and waste incineration plants will, in practice, only require an integrated environmental authorisation under Law 16/2002
  • The following types of activity are not covered by Law 16/2002 and are therefore subject to LCAPA authorisation (indicative examples only):
  • conventional power plants under 50MW
  • manufacture of asphalt, beer
  • manufacture of cotton and felt
  • coffee roasting
  • operation of crematoria ovens

Under LCAPA, operators of "Group A and B" activities (more highly polluting industries set out under Annex IV which include e.g. small power plants, asphalt and beer manufacture) must obtain an authorisation from the relevant Regional Government for the construction, assembly, operation, transfer or substantial modification of the installations in question. Group C industries, considered less polluting (for example cotton and felt manufacture, coffee roasting) are merely required to provide notice of the activity to the correspondence authority of the Regional Government.

Notification, monitoring and record keeping for Group A and B activities

Other duties under LCAPA for Group A and B activities include:

  • Notifying the relevant Regional Government of the transfer, stoppage of activities or closure of regulated premises
  • Immediately notifying the relevant Regional Government of any imminent threat of significant damage due to air pollution, as well as any actual damage, indicating the measures that have been adopted to prevent occurrence or further recurrence of damage.

Contents of the Authorisation for Group A and B activities

Authorisations have a certain number of minimum requirements including:

  • Maximum emissions values for pollutants, in particular, those listed in Annex I of LCAPA, which may be released by the installation and, as the case may be, the parameters or the technical means to achieve those values.
  • Provisions for reducing long-distance or cross-border pollution, as the case may be.
  • Systems and procedures for monitoring and analysing polluting emissions, specifying the methods and procedures and the frequency of testing and maintenance of monitoring records.
  • Measures in relation to abnormal operating conditions in other than normal circumstances which may affect the environment, such as start-up, leaks, operating systems failures, temporary stoppage or definitive closure.
  • The authorisation must be time-limited.

LCAPA provides obligations for municipalities with more than 100,000 inhabitants and for other denselypopulated urban areas to inform the public of air pollution levels and air quality as well as to prepare plans and programmes in order to meet clean air objectives. This greater availability of public information is likely to lead to increased pressure from the public on authorities to enforce the provisions against major polluters.

Furthermore, LCAPA raises the amount of sanctions for very serious infringements from EUR 1,200,000 to EUR 2,000,000 (including for example, failure to comply with the authorisation and notification regime, or exceeding emission limits where this has generated air pollution and which has seriously endangered human health or safety or which has caused serious damage or deterioration to the environment).

Given the dispersive nature of air pollution, LCAPA requires cooperation between the different public authorities, especially in cases where the effects of air pollution go beyond the municipality or an Autonomous Region. LCAPA is a comprehensive law on air quality; as such it provides a number of additional powers to assist the effort to improve air quality including the creation of voluntary agreements for the reduction of pollutants, research and development.

In conclusion, the comprehensive nature of LCAPA is likely to provide Spain with a durable piece of air quality legislation that will place increasingly strict requirements on industrial air emissions and is likely to make real steps towards preventing the continuing air quality problems (particularly in urban areas), which Spain has experienced.

Footnotes

1. dated 1 July 2002, on the Integrated Prevention and Control of Pollution ("de Prevención y control Integrado de la Contaminación")

Copyright Clifford Chance 2008

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