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The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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NATIONAL REGULATIONSNational Greenhouse Gas Emission Allowance Registry (“Registro Nacional de Derechos de Emisión”).Royal Decree 1264/2005, of 21 October, which Regulates the Organization and Functions of the National Greenhouse Gas Emission Allowance Registry. Spanish Official Gazette of 22 October 2005.The main object of Directive 2003/87/EC of the European Parliament and Council of 13 October 2003 (which established a scheme for greenhouse gas emission allowance trading within the European Union) was to promote the reduction of greenhouse gas emissions in an effective and economically efficient way. To achieve this, among other measures, Directive 2003/87/EC provided for the establishment and maintenance by the Member States of a registry in order to ensure exact accounting for the issue, holding, transfer and cancellation of allowances, as appropriate for the fulfilment of the obligations assumed by the parties to the Kyoto Protocol to the United Nations Framework Convention on Climate Change when it enters into force. Subsequently, the European Commission approved Regulation 2216/2004/EC, of 21 December 2004, for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and Council and Decision 280/2004/EC of the European Parliament and Council, of 11 February, concerning a mechanism for monitoring Community greenhouse gas emissions and for implementing the Kyoto Protocol. The Regulation responds to the requirement to establish a integrated community registries system, composed of the registries established by the Community and the Member States under Article 6 of Decision 280/2004/EC, which incorporates the registries created under Article 19 of Directive 2003/87/EC, and the Community independent transaction log (“DICT”) established under Article 20 of the aforementioned Directive, to guarantee that there are no irregularities in the issue, transfer and cancellation of emission allowances and that the transactions were compatible with the obligations derived from the United Nations Framework Convention on Climate Change and the Kyoto Protocol. Directives 2003/87/EC and 2004/101/EC were incorporated into Spanish law, mainly through Law 1/2005, of 9 March, regulating a scheme for greenhouse gas emission allowance trading. Chapter VII of this Law, modified by Royal Decree-Law 5/2005, of 11 March, on urgent reforms for the productivity drive and for the improvement of public contracting, establishes the regulation of the National Greenhouse Gas Emission Allowance Registry (in Spanish, “RENADE”). Specifically, Article 25.5 of Law 1/2005 states that the organization and functions of RENADE will be governed by Royal Decree in accordance with Commission Regulation (EC) No. 2216/2004. Royal Decree 1264/2005, develops the basic rules concerning the organization and functions of RENADE in the implementation of that envisaged by Law 1/2005 and in the application of the rules contained in Commission Regulation (EC) No 2216/2004. In this way, Chapter I regulates the object and purpose of the rule, and establishes RENADE as the instrument ensuring the advertisement and continuous updating of ownership and control of emission allowances, which forms part of the community integrated registries system. Chapter II, regulates the organization, structure and functioning of the Registry, in addition to establishing the types of existing accounts, the limitations on accounts relating to authorizations and the relationship between the Registry and the account owners, as well as the principles and effects that recording at the Registry creates. Finally, Chapter III establishes the regulations concerning the data interchange with the Community independent transaction log (“DICT”) and regulates the registry procedures. Legal Regulation on Noise.Royal Decree 1513/2005, of 16 December, implementing Law 37/2003, of 17 November, on Noise, Concerning the Assessment and Management of Environmental Noise. Spanish Official Gazette of 17 December 2005.Royal Decree 1513/2005 aims to assess and manage environmental noise with the intention of preventing, reducing or avoiding the harmful effects, including the problems, caused by exposure to environmental noise. Therefore, on the one hand Royal Decree 1513/2005 involves a partial development of Law 37/2003, on noise, as it covers sound pollution produced not only by environmental noise but also by vibrations, and their implications for health, physical goods, and the environment. On the other hand, Royal Decree 1513/2005 only includes sound pollution caused by environmental noise and the prevention and correction of their effects on humans. To achieve its purpose, Royal Decree 1513/2005 provides for specific actions, such as the production of strategic noise maps to determine the exposure of the population to environmental noise, the adoption of action plans to prevent and reduce environmental noise and, specifically, when exposure levels could have harmful effects on human health, the disclosure of information concerning environmental noise and its effects on the local population and of information that the competent authorities have at their disposal in relation to acoustic cartography and related action plans. Furthermore, and with the aim of complying with the obligations established by the Law on Noise; supplying information to the European Commission and to international bodies; in addition to the adequate management of the information necessary for the production of strategic noise maps of and action plans of the state jurisdiction infrastructures, Royal Decree 1513/2005 creates a basic information system on sound pollution in the Ministry for the Environment. Therefore, a centre for the reception, analysis, and processing of data is being created. The centre will be managed using employees and resources of the Department of Environmental Quality and Evaluation (“Dirección General de Calidad y Evaluación Ambiental”). Rights on Use of Water Transactions.Royal Decree-Law 15/2005, of 16 December, on Urgent Measures Regulating Rights on Use of Water Transactions. Spanish Official Gazette of 17 December 2005.The first measure proposes to entitle the owners of rights to use of water in the public initiative irrigation areas (“zonas regables de iniciativa pública”) to execute the water assignment agreements that are referred to in Article 67.1 of the Water Act. Therefore, Royal Decree-Law 15/2005 regulates the possibility of granting assignment agreements to the “grantees and other owners of private water use rights ”. Public Water Domain Regulations (“Reglamento del Dominio Público Hidráulico”), Article 343.2, restricts the possibility of executing those agreements to “the grantee of surface and ground waters and to the owners of temporary rights on use of the private water registered in the Water Register (“Registro de Aguas”) under the first and second additional clauses of the Water ”. Therefore, and given that the titles that the users of the public initiative irrigation areas cannot be included in either of the categories defined in the Public Hydrological Domain Regulations – in addition to it being a sui generis administrative title deriving from the regulations on agriculture reform and improvement–, by means of Royal Decree-Law 15/2005 the field of application of the Article 67.1 of the Water Act has been specified with the aim of entitling such owners to enter into assignment contracts, both as grantors and as grantees. Further to this and since they are recognized to be equivalent to the concession title, Royal Decree-Law 15/2005 states these titles are suitable for registration. The second measure establishes that the interbasin connexion infrastructures between the Negratín and Cuevas de Almanzora reservoirs, as well as the Tajo-Segura rivers aqueduct, can be used for the water transactions regulated under Articles 67 to 70 of the Water Act. REGULATIONS OF THE AUTONOMOUS REGIONSAutonomous Region of Aragon. Non-Hazardous Waste.Decree 2/2006, of 10 January, approves the Regulations on Production, Possession and Management of Industrial Non-Hazardous Waste, and the Legal Regime of the Industrial Non-Hazardous and Non-Valorizable Waste Elimination in the Autonomous Region of Aragon. Aragon Official Gazette of 23 January 2006.Decree 2/2006 regulates the activities of production, possession and management of the industrial non-hazardous waste in the Autonomous Region of Aragon. Decree 2/2006 establishes the Registry of Industrial Non-Hazardous Waste Producers (“Registro de productores de residuos industriales no peligrosos”), provides full content for the general principles in the management of waste, such as the principles of proximity and sufficiency -already defined under national regulations-, sets forth a regime of authorisations for the entering and exit of industrial non-hazardous waste within the territory of this Autonomous Region and specifies the powers of inspection, surveillance and control in this field of environmental law and which are reserved for the authorities of the Autonomous Region of Aragon. Likewise, Decree 2/2006 creates and regulates the legal regime of the public services for the elimination of industrial non-hazardous waste, specifying the activities that must necessarily be carried out by the public authorities, the way those activities must be carried out, the extent of the rights and duties of the citizens of this Autonomous Region and the sanctioning powers within this area of environmental law. Autonomous Region of Aragon. Waste.Decree 236/2005, of 22 November, approves the Regulations on Production, Possession and Management of Dangerous Waste and the Legal Regime of the Dangerous Waste Elimination Public Service of the Autonomous Region of Aragon. Aragon Official Gazette of 12 December 2005.Article 1 of Decree 236/2005 of Aragon, states that its aim is to establish the regulatory regime for the production, possession and management of dangerous waste, generated or managed in the Autonomous Region of Aragon, and the regulatory regime for the dangerous waste elimination service in that Autonomous Region. Similarly to State Law 10/1998, Decree 236/2005 does not apply to medical and radioactive waste, air producers and the effluents, polluting sewage or water streams, which are regulated by the legislation currently in force. Among other issues, Decree 236/2005 regulates the legal regime and procedures for registration at the Registry for Minor Producers of Hazardous Waste of the Autonomous Region of Aragon, the regulatory regime for the entry and exit of hazardous waste to or from the Autonomous Region (emphasising the principles of proximity and sufficiency, following the most consolidated Case-Law of the Court of Justice of the European Communities), the public bodies of inspection, vigilance and control of the Regulations, as well, as finally, the legal regime for harmful waste disposal service in the Autonomous Region of Aragon. In relation to this issue, Decree 236/2005 provided that the regulatory regime for the Hazardous Waste Disposal Service will be subject to public contracting legislation; to the State regulations in relation to hazardous waste; and specifically to Decree 236/2005. More specifically, Articles 28 et seq. of Decree 236/2005 regulate, among other issues, the conditions for the provision of the public service; the legal regime of the service manager; the tariff regime, the service manager liability regime; in addition to the duties of the users. Balearic Islands. Groundwater Extraction.Decree 108/2005, of 21 October, Regulating the Technical Conditions of the Groundwater Authorizations and Concessions and the Execution and Suspension of Borehole Drilling in the Balearic Islands. Balearic islands Official Gazette of 29 October 2005.Through the Decision of 1 October 2004 of the Chamber for Contentious Administrative Proceedings of the High Court of Justice of the Balearic Islands declared the provisions of Balearic Decree 88/2000 on special measurements for water resources management in the Balearic Islands void to a large extent,. Decree 108/2005 has covered the existing loophole in the area, in addition to abrogating those rules of Decree 88/2000 that were not declared void by the High Court of Justice. In relation to groundwater authorizations, only one modification has been introduced to the regulation established by Decree 88/2000 and the Order of 16 December that developed it. The modification consists of reducing the maximum annual volume from 500 m³/year to 200 m³/year, because is understood that this parameter is enough for the supply of a sole rural dwelling in the Balearic Islands. In relation to the technical conditions for execution and suspension of borehole drilling and, for the purpose of protecting the Public Water Domain, Decree 108/2005 develops and specifies the construction aspects of the intakes (“captaciones”) according to the different water situations, which are extremely varied, depending on the hydrological characteristics of geometrical lay out, ground-water table deepness, aquifer type, etc. Therefore, since it is impossible to record and give the details of all possible situations and the applicable parameters for each of them, the Decree 108/2005 establishes a series of type water situations that allows parameter groupings to be applied to a specific series of ranks. Finally, Decree 108/2005 designates the Water Resources Department (“Dirección General de Recursos Hídricos”) as the competent administrative body to carry out inspection and control tasks in relation to the regulated matters. COURT RESOLUTIONSAnimal Waste.Decision of the Court of Justice of the European Communities of 8 September 2005, European Commission vs. Kingdom of Spain (as. C-121/03).The Decision of the Court of Justice of the European Communities (the “CJEC”) of 8 September 2005 analyses the correction of the adoption into Spanish Law of specific Directives related with environmental matters. In particular, the Decision of the CJEC judges whether the Kingdom of Spain has correctly adopted the necessary measurements to guarantee that the pig farming installations in the Bajo Ter (Gerona) area fulfil the obligations on environmental matters contained in the following Directives: 75/442/EEC, of 18 March, concerning waste; 85/337/EEC, of 27 June 1985, concerning the evaluation of the repercussions of specific public and private projects on the environment; 80/68/EEC, of 17 December 1979, concerning the protection of groundwater against contamination caused by specific hazardous substances; and 80/78/EEC, of 15 July 1980, concerning the quality of water for human consumption. After analysing several matters regarding the adoption of these Directives into the State and Autonomous Region regulations, and the measures adopted in this area by different competent Administrations, the CJEC considers that Spain has failed to fulfil its obligations under Directive 85/337/EEC and Directive 80/78/EEC, because , respectively, no environmental impact assessment was made prior to the construction or modification of the pig farming installations in the Bajo Ter area and in several public water distribution systems the maximum allowed concentration of nitrates was exceeded. Eco-crime. Waste Dumps.Decision of the Supreme Court (Chamber for Criminal Matters) of 18 July 2005.The Decision of the Supreme Court of 18 July 2005 analyses the criminal liability of an Environmental Town Councillor of a Municipality, as the most senior person in charge of the operations of a waste dump located in the proximity of the Ter river, and of the Officer of the contracting company which treated and deposited the waste in the dump, for a series of spillages and waste deposits, some of them of hazardous nature, which were made without supervision or the required authorization and caused toxic substances to leak o the basin of the river. As the High Court underlines, the waste dump never had the required town license. It just had an order issued by the “Departament de Gobernació de la Generalitat de Cataluña” which only authorized the initial installation. Also, it notes that, although, in view of the situation, certain measurements was carried out for to try to avoid leaks to the river basin, such leaks continued even though to a lesser degree. Nevertheless, the Second Chamber of the Supreme Court considers that not all the criminal requirements for the application of the first and second paragraph of Article 347 bis of the Criminal Code 1973 have occurred because is not possible to conclude from the expert opinions given that a serious danger to humans or an irreparable damage to the ecosystem were caused by the relevant behaviour. This is the case because the High Court considers that, firstly, the tests of the samples do not prove that at any time the spills exceeded the maximum toxicity allowed by Law, and secondly, the terrain where the waste dump was has now been completely regenerated and cultivated. Urban Planning and Environment.Judgment of the High Court of Justice of Madrid (Chamber for Contentious Administrative Proceedings) (“Tribunal Superior de Justicia de Madrid, Sala de lo Contencioso-Administrativo”), 7 July 2005.This Judgment of the High Court of Justice of Madrid (the “TSJ”) analyses various interesting subjects relating to urban development regulation, administrative and environmental matters. In relation to the final issue, the TSJ analyze the possible necessity of a revision of a concrete municipality Subsidiary Planning Development Regulations (“Normas Subsidiarias de Planeamiento Urbanístico”) in order to bring the environmental impact evaluation proceeding into compliance with the national and autonomous region of Madrid regulations. The TSJ finally argues that the situation shall not be included among the urban development instruments that the previous environmental impact evaluation proceeding of the autonomous region of Madrid requires, due to the fact that the modification of the planning regulations do not imply, per se, the elimination of the plant, bush and tree ground cover, and that the environmental impact evaluation proceeding will be carried out during the execution phase or the approval of the works project phase will be carried out.
The information contained in this Newsletter is of a general nature and does not constitute legal advice |
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