From case-law’s to the codification of art. 272 bis of Legislative Decree 152/2006. A new reference for the judge.

Abstract

The absence of dedicated dispositions on ‘odorous emissions’ of industrial origin within the Italian environmental legislation led the judges to refer to article 844 of the Italian Civil Code as well as article 674 of the Italian Penal Code in case of disputes concerning odorous releases. Those provisions assume the "exceeding of the tolerable threshold" as an evaluation criterion to establish the lawfulness of an odorous emission, regardless of the prescriptive conditions that might be set in the environmental permits granted to operate plants.

The recent introduction of a specific article in the Italian Legislative Decree n. 152/2006, i.e. art. 272 bis, in Title I of Part V, regulating the prevention and minimization of ‘odorous emissions’ that may be offensive and detectable beyond the boundaries of industrial sites, emphasizes the role and importance of the environmental permits, outlining in particular the criteria for assessing the issue, no more based on a ‘subjective perception’, but rather on objective measures (e.g. emission limits values expressed in concentration, action and management plans aimed at reducing the number of possible odorous emission sources, more stringent monitoring requirements, …) to be explicitly set out in the environmental permits concerned.