All questions
Environmental protection
i Air quality
Law 34/2007 on Air Quality and Atmospheric Environment Protection governs the activities considered as potentially pollutant of the atmosphere. This Law:
- identifies the polluting substances that must be subject to certain emission limits;
- imposes that certain activities must obtain a previous air emission authorisation (labelled as A or B) or require a previous communication (labelled as C); and
- imposes additional obligations such as self-control and keeping an official registry book on air emissions.
The air emission limit values are established by the regional authorities taking into account:
- the implementation of best available techniques or other appropriate measures to prevent air pollution;
- technical characteristics of the installation, location and local environmental conditions;
- air emissions' nature, potential to transfer pollution from one medium to another and incidence for people and the environment; plans or programmes regarding air quality or gas emission reduction; and
- air emission limit values imposed by laws and regulations or international treaties of which Spain is party (Article 5 of Royal Decree 100/2011).
Implementing rules govern specific activities or pollutants. For instance, large combustion plants are subject to certain specific conditions under Royal Decree 815/2013 on industrial emissions and in Royal Decree 430/2004 establishing new regulations on limitations of atmospheric emissions from large combustion plants whereas that medium combustion plants are subject to Royal Decree 1042/2017 on industrial emissions.
ii Water quality
Royal Legislative Decree 1/2001 on Water governs fresh water and its associated land (the hydraulic public domain). Under this rule, the use of water for private purposes is subject to obtaining a concession granted by the Basin Authority. Other activities, such as the use of the river bed, or the discharge of wastewater, require an authorisation also granted by the Basin Authority.
Law 22/1988 on Coasts, which governs seawater and its associated land (the maritime-terrestrial public domain), follows a similar structure. Thus, the use of, occupation of or works on the maritime-terrestrial public domain are subject to authorisation or concession. Also, discharges from land into the sea require previous authorisation. Law 22/1988 is completed by Law 41/2010 on the protection of the maritime environment that governs the planning, conservation, protection and improvement of the environmental status of the maritime environment.
To better protect both hydraulic and maritime-terrestrial public domain, easem*nts and limitations are imposed on the ownership of adjacent plots. Planning is also key for achieving an appropriate level of protection:
- Regarding hydraulic public domain, each basin has its own plans aimed to, inter alia, achieve good water conditions and adequately protect the water resources, satisfy water demands, achieve a balanced and harmonised regional and sectorial development, increase the availability of the resource, protect its quality and reduce the cost of its use.
- Regarding the maritime-terrestrial public domain, Law 41/2010 on the protection of the maritime environment sets out the obligation to draft specific strategic plans for each maritime area. The plans for each of the five Spanish maritime areas were approved by Royal Decree 1365/2018.
Further, granting intake concessions or discharge authorisation from the hydraulic public domain is based on the environmental status of the medium and the compatibility between the water intake or discharge and environmental sustainability. To determine both, the content of the specific basin plan applicable is key.
Regarding water discharges, as it is difficult to determine some unique maximum limits of general applicability, the discharge limit values applicable are set out in accordance with the specific circ*mstances at stake. Among those circ*mstances to be considered is the content of the specific plan applicable, which usually includes maximum discharge limit values or quality objectives, as well as the specific characteristics of the discharge to be authorised (e.g., location, pollutants or quantity).
Similar considerations are applicable when granting discharge authorisations to the maritime public domain. Based on the quality objectives applicable and the specific characteristics of the discharge, applications for discharges into maritime public domain authorisations may be rejected or limited to guarantee that no significant environmental alteration is caused (Article 57.3 Law 22/1988).
iii Chemicals
The main Spanish provisions on chemicals, as most of the environmental legislation in Spain, come from EU rules. Indeed, one of the outstanding rules on chemicals is EU Regulation 1907/2006 on Registration, Evaluation, Authorisation and Restriction of Chemicals. This Regulation sets out specific duties and obligations (e.g., registration of substances and uses with the European Chemicals Agency) on manufacturers, importers and downstream users of substances on their own, in preparations and in articles. In addition, EU Regulation 1272/2008 governs the classification, labelling and packaging of chemical substances and preparations.
The national Law 8/2010 sets out the penalties applicable for any infringement of EU Regulations 1907/2006 and 1272/2008. As a complement, Royal Decrees 255/2003 and 363/1995 govern certain specific aspects on the classification, labelling and packaging of hazardous substances and preparations.
Further, Royal Decree 840/2015 on risk control for serious accidents where hazardous substances are involved, requires notification for the installation of activities that use certain hazardous substances and subjects those installations to several preventive conditions, such as the preparation of preventive policy plans, security reports or emergency plans. Depending on the existing quantity of dangerous substances, the facilities are classified as low- or high-risk facilities. High-risk facilities are subject to stricter obligations and requirements.
iv Solid and hazardous waste
Law 22/2011 defines waste as any substance that the possessor disposes of or has the intention or obligation to do so. The Law includes definitions of different types of waste such as hazardous, domestic, commercial, industrial or biowaste.
Hazardous waste is that which has a hazardous characteristic as listed in Annex III of the Law and is considered as such by the European Union, national or regional regulations. The treatment of hazardous waste is subject to specific authorisations and must meet special conditions of storage, labelling and packaging as well as documentary obligations. In addition, the production of hazardous waste is subject to prior communication to the authorities or registration within the Hazardous Waste Small Producers Public Registry. Financial guarantees may be requested.
The collection of domestic waste is entrusted to the municipalities (non-hazardous commercial waste may also be so), whereas producers of industrial waste have the obligation to hand it over to authorised waste managers and keep record of its proper delivery. Waste managers must obtain a previous authorisation and have financial guarantees.
Certain types of waste are also subject to specific regulations. This is the case, among others, for waste packages governed by Law 11/1997 and Royal Decree 782/1998, waste from electrical and electronic equipment governed by Royal Decree 110/2015, construction and demolition waste governed by Royal Decree 105/2008, oil waste governed by Royal Decree 679/2006 or waste batteries governed by Royal Decree 106/2008.
Also, Spanish waste legislation includes the extended producer responsibility (i.e., the responsibility of the manufacturer of a product for its entire life cycle, and especially for its take-back, recycling and final disposal). Manufacturers may comply with these obligations on their own or collectively by means of an integrated management system, an organisation that assumes said obligations on behalf of all the adhering parties.
v Contaminated land
Law 22/2011 on waste and polluted soils, and Royal Decree 9/2005 on the creation of a list of potentially land pollutant activities and the criteria to declare polluted soils, are the main rules governing soil pollution.
Operators of activities included in the list of potentially soil-polluting activities under Royal Decree 9/2005 that produce, handle or store more than 10 tons per year of certain substances such as hazardous substances, or that have a fuel tank for private use with a average yearly consumption higher than 300,000 litres and a total storage volume of 50,000 litres or higher, had to file a preliminary soil report before 7 February 2007.
Thereafter, in view of the content of this report, the authorities had the option to request more detailed information. Operators then must update the soil report periodically before the regional authorities – the regularity of this update is determined by each autonomous region – and, in any case, when installing, enlarging or closing the activity. Likewise, owners must prepare a soil report when changing the use of the land or applying for a permit for a different activity.
In addition, owners of soils in which potential soil-polluting activities are or have been carried out must disclose this circ*mstance in the public deed of transfer of rights over the soil in question.
As a general rule, regional authorities are the ones with the power to declare a soil as polluted. For this purpose, risk for human health or the environment taking into account the specific use of the land must exist. The criteria to be considered for this declaration are set forth by Royal Decree 9/2005, which differentiates among industrial, urban or other uses of the land.
The persons obliged to clean up the site – in the manner imposed by the authorities – are, in this order, the polluter, the owner of the polluted site and the possessor thereof.
The declaration of soil as polluted must be included within the Property Registry and can only be removed when the regional authorities confirm that the clean-up has been duly carried out and that, therefore, there is no unacceptable risk to human health or the environment.
