WRITTEN QUESTION E-2278/00

by Monica Frassoni (Verts/ALE) to the Commission

(7 July 2000)

Subject: Burgo paper mill incinerator, Mantua

The Burgo paper mill, which is situated in the immediate vicinity of Mantua, is about to start operating an industrial waste incinerator(1), for the construction of which the Lombardy region granted approval (DGR No 30490 of 1 August 1997)(2). During its construction, Burgo S.p.A made various changes to the plans which resulted in the facility being changed from an incineration plant with energy recovery to an on-land incineration plant with prior temporary storage. This meant that the project had to go through a second administrative approval process, which culminated in the region granting approval (DGR No VI/49445 of 7 April 2000)(3). On both

occasions, however, the regional authorities granted approval without checking whether it was necessary to carry out an environmental impact assessment of the project as a whole. The results of analyses of sludge samples were not made available to the Commune of Mantua or to the public. The incinerator in question would be situated in the immediate vicinity of a town that is already heavily polluted due to the proximity of a large petrol refinery, a large chemical factory and heavy through traffic, the effects of which are intensified by Mantua's damp and windless climate. The incinerator would also be inside a restricted(4) and protected area, the Mincio regional park. Above all, at the same time that the proposed incinerator was approved by the regional authorities, the local and regional authorities also approved a proposal for a new housing estate for around a thousand people about 250 metres away from the paper mill and the proposed incinerator(5). After the public had protested against the granting of approval for the incinerator and the new housing, on 31 May 2000 the Commune of Mantua, which had not opposed the approval granted by the regional authorities in 1997, brought proceedings against the Region and Burgo S.p.A before the regional administrative court for failure to apply the environmental impact assessment procedure.

Can the Commission ascertain whether the European legislation on environmental impact assessment(6) was applied, bearing in mind the judgement of the Court of Justice that, even in respect of the works listed in Annex II of Directive 97/11/EC, a Member State is not entitled to decide that a project need not be subject to environmental impact assessment if it has a significant impact on the environment by virtue of its nature, scale or location(7)? Does it not agree that this project is covered by Annex I of Directive 97/11/EC? Could the Commission also ascertain whether the provisions of Directive 96/61/EC(8) on the prevention and reduction of pollution, which was supposed to have been transposed by 10.10.1999, were applied?

(1) To dispose of c.240 tonnes per day sludge produced by de-inking.

(2) Subsequently rectified, on the grounds of material error, by DGR No 35931 of 5 May 1998.

(3) The request for permission to make substantial changes was submitted by Burgo on 28.7.1999, regional act No 42079.

(4) Pursuant to Law No 431 of 8.8.1985 and Law No 1497 of 29.6.1939.

(5) C.f. acts of approval DCC No 202 of 16.12.1997 of the Mantua Commune Council and DPGR No 41163 of 29.9.1999 of the Lombardy region (BURL No 41, 11.10.1999). It is also worth noting that Article 216 of the Italian Testo Unico delle Leggi Sanitarie lays down that all noxious industrial processes classed in law as Category I (including incinerators) must be sited away from housing, unless the operator can prove that, as a result of applying new methods or special precautions, the process does not constitute a threat to the health of anyone in the vicinity (RD No 1265 of 27.7.1934, as amended). The Regolamento generale sanitario also states that the council of the local commune, acting on the advice of the public health inspector, may give permission for a Category I noxious process to be carried out in the vicinity of residential areas provided that the inspector certifies that, as a result of applying new methods or special precautions, the process does not constitute a threat to the health of anyone in the vicinity (c.f. RD No 45 of 3.2.1901, as amended). Commenting on these provisions, Lionello Rizzatti (Prevenzione grandi rischi industriali, Pirola Editore, 1989) also noted that, when an industry was situated in an area recognised as suitable for that purpose, the local mayor should not, for obvious reasons, give permission for the construction of housing, or classify land as suitable for housing, if he was approached for permission to build houses in the vicinity, and that, if planning permission had already been given, the mayor should order the industrial plant to be closed down.

(6) Directives 85/337/EEC and 97/11/EC (OJ L 175, 5.7.1985 and OJ L 73, 14.3.1997).

(7) C-435/97 of 16.9.1999.

(8) OJ L 257, 10.10.1996, p. 26.

Answer given by Mrs Wallström on behalf of the Commission

(7 September 2000)

Based on the information given by the Honourable Member, the work to which the question makes reference, an industrial waste incinerator, is within the scope of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment(1) as modified by Council Directive 97/11/EC of 3 March 1997(2), and, in particular, it appears to be a project of the classes listed in Annex II of Directive 85/337/EEC (class 11c of Directive 85/337/EEC Installations for the disposal of industrial and domestic waste, unless included in Annex I) and of the classes listed in Annex I of Directive 97/11/EC (class 10 Waste disposal installations for the incineration or chemical treatment as defined in Annex IIA to Directive 75/442/EEC under heading D9 of non-hazardous waste with a capacity exceeding 100 tonnes per day).

Under Directive 85/337/EEC projects listed in Annex II should be made subject to an environmental impact assessment (EIA) where Member States consider that their characteristics so require (Article 4, paragraph 2). However, Member States are considered obliged to make at least a pre-assessment in order to establish whether these projects need to be made subject to an EIA procedure. Under Directive 97/11/EC, projects listed in Annex I are to be made subject to an assessment in accordance with Articles 5 to 10.

However, projects for which requests for development consent were submitted before 14 March 1999 are governed by the provisions of Directive 85/337/EEC prior to the amendments. Therefore, in order to identify the correct Community law to be applied it is necessary to check when the request for development consent was submitted.

In addition, on the basis of the information given by the Honourable Member the project appears to be covered by Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (IPPC)(3). Under this Directive, it would have needed an updated IPPC permit based on the best available technologies (BAT) if the construction of the incinerator may have significant negative effects on human beings or the environment in the opinion of the competent authority i.e. the Lombardy region (Article 2(10) and of the Directive). Therefore, in order to identify the correct application of this directive it is necessary to check whether the Lombardy region considered the installation of the incinerator as a substantial change, and if so, which BAT based permit conditions were established in the authorization.

Not being aware of the situation described by the Honourable Member, the Commission will take the appropriate steps in order to gather detailed information about it and to ensure the observance of Community law.

(1) OJ L 175, 5.7.1985.

(2) OJ L 73, 14.3.1997.

(3) OJ L 257, 10.10.1996.