Is your business active in Portugal? Then take five minutes to learn about an important upcoming change in the legislation.
In September of 2015, the Portuguese Environment Agency (APA) released for public comment the long-awaited draft legislation on soil contamination. The focus is hence on soil and not on groundwater, which is different from contaminated land legislations in some other European countries. In this text we will highlight the most important topics of this legislation. Of course amendments are still possible before the final version is published. Nevertheless we wanted to give you already an insight into the main directions. Do not hesitate to contact us if you have further questions.
For a visual overview of the steps to follow, consult our flowchart.
Starting point is the list of activities; this list includes activities covered under the Industrial Emissions Directive, as well as retail petrol stations, installations with underground fuel storage tanks for internal use with total capacity >22.5 m3, installations for repair and maintenance of heavy vehicles and machinery, landfills, industrial wastewater treatment plants, etc. All companies with activities mentioned in this list will have to execute a Phase I site investigation (Preliminary Assessment) within the first year after the approval of the new legislation.
APA will review the Preliminary Assessment and issue a Declaration of Risk of Soil Contamination, which quantifies risk as either “Minimal”, “Low”, “Medium” or “Elevated”. Installations classified as “Medium” or “Elevated” risk will be required to carry out a Phase II site investigation (Exploratory Assessment). Operators of Industrial Emissions Directive (IED) facilities who have already submitted a Baseline Report do not have to conduct an Exploratory Assessment.
If soil quality Reference Values are surpassed during the Exploratory Assessment, a Detailed Assessment of Soil Quality, including a Risk Assessment, will be necessary. Based on the outcome of the Risk Assessment, it will be decided if a remediation is required or not. Operators of IED facilities will carry out the Detailed Assessment and Risk Assessment according to the procedures of the IED regime.
The remediation targets are also based on a risk assessment and may include measures to reduce the mobility of contaminants or block exposure pathways. The remediation method is chosen based on the BATNEEC (Best Available Technology Not Entailing Excessive Costs) principle. However, if the owner of a facility wishes to skip the Detailed Assessment and proceed straight to remediation, they must remediate to generic reference values.
The Phase I site investigation must be repeated every 1/2/3/5 years depending on the previous “Declaration of Risk”.
Companies have to execute a phase I audit according to the frequency mentioned in the flow diagram. Assessments are also required whenever an establishment is altered, activities cease or there is a change in ownership.
There is no date fixed to make a distinction between historical and new contamination.
Threshold values for soil and groundwater
Land use specific threshold values are defined for soil; those are based on the Ontario (Canada) soil quality standards. The legislation does not address groundwater or surface water contamination. For groundwater the regional competent authorities will most likely define the threshold values, probably based on drinking water limits. Be aware that some of the new limits currently being proposed are often even below standard detection limits.
Risk based approach
The approach is risk based, both for deciding whether remediation is required, as well as for defining the remediation targets. However, if a Risk Assessment is not carried out, the remediation must meet the generic threshold values. There is no fixed risk assessment tool defined yet. Tools like Rebecca and S-Risk can probably all be used.
BATNEEC principle applicable
Remediation methods can be chosen based on the BATNEEC principle (Best Available Technology not Entailing Excessive Costs).
The legislation does not require any accreditation in order to conduct the various studies that are part of the process. It does leave open the possibility for accreditation in the future, of which the principal advantage will be to streamline the process of approving the various reports. The legislation states that soil analyses should “preferentially” be done by an accredited laboratory.
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