"The environmental pollution is caused by all substances or radiation which - once thrown into the air, into the water, into the soil or into the underground - change temporarily or definitely their quality or interfere with their normal conservation or evolution" (article 21 of Law no. 11/87).
The Portuguese territory is not homogeneously affected by Air Pollution. In fact problems related with Air Pollution are located in the main urban areas and near the more important industrial units, such as Sines, Setubal, Barreiro-Seixal, Lisbon, Estarreja and Oporto. Since the development of Portuguese industry is considered to be very recent, the problem of Air Pollution has only recently been looked upon.
THE ENVIRONMENTAL MAIN LAW
Law n. 11/87 - "The Environmental Main Law"("EML") [see our previous contribution "Overview on Portuguese Environmental Law"] states in general terms (article 8) that any "plant, machinery and means of transportation that by their activity may affect the quality of the atmosphere must be endowed with the appropriate device or process to retain or to neutralise the polluting substances" and that "it is forbidden to operate new enterprises or to develop the existent ones that, by their activity, may result on sources of Air Pollution without being endowed with the device or process in due state of functioning in order to retain or to neutralise the polluting substances or without the measures in order to respect the protection conditions of air quality established by the proper authorities".
The EML also states that a specific regulation must be enacted in order to control the throwing of any substances into the atmosphere that can affect its quality, the ecological balance or the public health. This regulation was adopted by Decree Law no. 352/90, which states the disciplinary rules of the protection and control of air quality.
The main objectives of this regulation are, amongst others: (a) the preservation of the harmony between Nature and the industrial activities, means of transportation and the human life; (b) the promotion of local programs for the improvement of air quality; (c) the use of clean technologies and non pollutant fuels.
In order to attain these objectives this regulation states that the previous licensing of the industry and the application of the polluter payer principle are essential measures. In what concerns this later principle a "Tax for the improvement of Air Quality" (article 30) was created and is still to be regulated. Finally, this Decree Law states that any combustion in the open air of any kind of waste, urban, industrial, toxic or hazardous, is expressly forbidden.
A number of other laws or regulations have been enacted such as Decree Law no. 108/92 (regulation of spray packages ("embalagens aerossois")); Decree Law no. 131/92 (enforcement of Council Directive no 76/767/CEE, of July 27, 1976, on recipients under an effective pressure above 50 kPa); Regulation no. 1233/92 (approval of Air Management Commissions); Regulation no. 286/93 (Establishment of value guides in the environment for the SO2, NO2 and CO, and of limit values for the lead and the guide values for the Ozone); Regulation no. 1248/93 (Disciplinary rules for the gas combustion equipment and their security devices - enforcement of Council Directive no.90/396/CEE, of June 29, 1990); Regulation no. 53/94 (Measures to be taken against Air Pollution caused by vehicle engines - enforcement of Council Directive no 93/59/CEE, of June 28, 1993).
CRIME OF AIR POLLUTION
The Portuguese Criminal Code now defines, in Article 279, a Crime of Pollution as follows:
"1. Whosoever, to an unacceptable degree:
b) Pollutes the air through the use of technical appliances or installations; (...)
Shall be sentenced to imprisonment of up to 3 years or to a fine of up to 600 days.
2. If the conduct referred to in no. 1 is carried out through negligence, the agent shall be sentenced to imprisonment of up to 1 year or to a fine.
3. The pollution occurs to an unacceptable degree whenever the nature or the amount being discharged or introduced is contrary to rules or restrictions set down by the competent authority in accordance with legal and regulatory provisions under sanction of application of sentencing as laid out in this article."
Some critics to this article of the Criminal Code were made in our previous article "Water Pollution in Portugal".
The contents of this Article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
For further information contact Antonio Esteves da Fonseca or Manuel de Andrade Neves, Abreu, Cardigos & Partners, Lisbon, Portugal.