Verificadores ambientales

Supreme Court, Contentious Chamber, 07/29/2021.

Contentious administrative appeal against Royal Decree 646/2020, of July 7, which regulates the elimination of waste by depositing it in a landfill.

He filed a claim, declare article Royal Decree 646/2020 null and void.

Relating to the entities that must carry out the inspection of landfills and those that must accredit them: the collaborating entities that carry out the inspections must be accredited in accordance with the UNE-EN ISO / IEC 17020 standard, by ENAC or other accreditation entities of any State member of the European Union, provided that said bodies have successfully undergone the peer review system provided for in Regulation (EC) No. 339/93. Collaborating entities must be independent of both the producer or holder of waste and the operating entity, not having participated in the design, manufacture, supply, installation, management, technical assistance or maintenance of the waste generation processes or the landfill object of inspection.

Collaborating entities that carry out inspections in landfills have to be accredited by ENAC (or by other accreditation entities of other EU Member States), excluding that this accreditation can be carried out by the Autonomous Communities, it invades the competences in environmental matters corresponding to the Autonomous Community of Catalonia. Within the executive powers in environmental matters.

The State Bar, on the contrary, understands that the title that protects state competition is that of industry-industrial safety, covered in art. 149.1.13ª SC.

Examine the legality of the contested precept from the point of view of its adjustment to the constitutional scheme of distribution of powers between the State and the Autonomous Communities, having to decide whether the matter that is regulated in it, its specific content, falls within the competence of the State or of the one that corresponds to the Autonomous Communities. Approach. Environmental competence title of art. 149.1.23ª CE. Basic legislation on environmental protection, or, on the contrary, industry-industrial safety that is included in article 149.1.13ª SC.

Examine the functions performed by the collaborating entities whose accreditation is concerned, to which the contested provision refers, as well as the substantive content of the standard in which their landfill inspection activity is foreseen.

Royal Decree 646/2020, of July 7, which regulates the elimination of waste by depositing it in the landfill.

This preamble indicates that the Royal Decree, develop and apply Law 22/2011, of July 28, on waste and contaminated soils, which transposes the Waste Framework Directive, to transpose Directive (EU) 2018/850.

The main objective of these Directives on waste was “to prevent or reduce the negative effects on the environment of the dumping of waste and, consequently, to promote the prevention, recycling and use of waste, as well as the use of materials and waste. the energy recovered, in order not to waste natural resources and to minimize the use of soils. Directive 2018/850, subjecting the waste destined to the landfill to an adequate previous treatment, an inescapable requirement to ensure that the dumping operations are carried out without putting human health and the environment at risk».

Objectives to reduce municipal waste, landfill cost regime, waste prevention and promotion of recycling. Accounting for those linked to the emission of greenhouse gases.

Establish an adequate legal and technical framework for waste elimination activities by depositing them in landfills in accordance with Law 22/2011.

Guarantee a progressive reduction of waste deposited in landfills, especially those that are suitable for preparation for reuse, recycling and recovery, through the establishment of rigorous technical and operational requirements applicable to both waste and landfills.

Establish measures and procedures to prevent, reduce and prevent, as much as possible, the negative effects on the environment related to the dumping of waste, in particular, the contamination of surface and groundwater, soil and air, and the emission of greenhouse gases, as well as any derived risk to people’s health. All this both during the exploitation phase of the landfills and once their useful life has ended.

As its “ultimate goal” (art. 1.2) “move towards a circular economy, comply with the waste hierarchy and with the disposal requirements established in articles 8 and 23 of Law 22/2011.

It details the admissible waste, the non-admissible waste and the waste admission procedure and criteria, its characterization and limit values, sets the objectives for reducing municipal waste discharges; costs of discharges; waste hierarchy and circular economy; regulates landfill authorizations, control, surveillance, closure and post-closure maintenance; information to the European Commission on municipal waste reduction targets; and finally, it regulates the sanctioning regime and the inspection, aspect, the latter, in which the precept contested by the appellant is inserted.

As for the inspection of landfills, which is a specific matter in which the activity of the collaborating entities referred to in this challenge is inserted, it appears regulated in art. 17 of the Royal Decree completed with its Annex VII, regarding the scope of inspections.

It is worth noting how important it is for landfills to undergo periodic inspections. Inspection, understood in a broader sense, is a key element to ensure that waste dumping operations are carried out in strict compliance with the authorization conditions.

It is the ENAC (or other accreditation entities of any Member State of the European Union) that must accredit (in accordance with the UNE-EN ISO / IEC 17020 standard) the content of these inspections that must cover, both the exploitation phase and post-closure surveillance, which should be aimed at “checking a) compliance with the general requirements, b) the correct application of admission procedures and criteria, c) the state of the facilities’ infrastructures and d) that the operations dumping are carried out without endangering human health and the environment.

The inspection, which will have a minimum three-year periodicity, will cover the verification of compliance with the conditions of the authorization and the correct operation of the landfills and will have the minimum content that is detailed in which the following aspects are contemplated:

1. General requirements.

a. Chronological file and its update status. Cell fill level in relation to the authorized quantities.

b. Verification that the facility operator is up to date with the payment of the insurance policy or the financial guarantees provided referred to in article 11.1.d)

2. Infrastructure of the dumping facilities.

a. Weighing systems: updated calibration certificate for weighing equipment.

b. Piezometric control network: checking its status and functionality.

c. Gas collection systems and use or oxidation: if applicable, checking the state of the gas collection system and the state of the flares or other landfill gas oxidation devices.

d. Leachate collection systems: if applicable, verification of the operation of the leachate collection systems and their tightness, water balance calculated by the operating entity responsible for landfill management and verification of leachate management.

e. Fences: checking their status.

f. Verification of the efficiency of the measures adopted to avoid the dispersion of waste on public roads and surrounding land.

3. Procedures and criteria for the admission of waste.

a. Documentary control of the identification receipts of the admitted waste.

b. Heavy

c. Previous treatment.

d. Rejections.

e. Characterization tests.

f. Admitted residue compliance test results. Evaluation of the suitability of these.

g. Historical photographic record of admitted waste.

4. Control and surveillance procedures in the exploitation and decommissioning phase.

a. Leachate control. Evaluation of results.

b. Gas control.

c. Groundwater control.

d. Topography.

The competent bodies of the autonomous communities may establish additional inspection elements.

Certainly, as the Constitutional Court frequently recalls, it is difficult to find sectors of reality that can be included in a single competence title and, in addition, the cross-cutting nature of environmental issues, which must be present, must be borne in mind. in the other sectorial public policies, with incidence, therefore, in matters included in other competences titles. Transversality of the environment that also derives from art. 45 SC, and that in the field of European Union law is reflected in the principle of integration of the purposes of environmental protection in all areas of action of public powers in order to achieve sustainable development (art 3 TEU, art. 37 of the Charter of Fundamental Rights of the EU, and art. 11 TFEU). It implies, from the competence perspective addressed, that not every activity that addresses this factor must necessarily be included in the scope of the environmental competence title, but rather that it will be necessary to weigh in each case what is the material scope with which the rule in question have a closer and more specific link (STC 15/2018).

Insofar as the inspection covers the landfill facilities, certain aspects related to the matter of industry may be present. However, and despite the aforementioned relationship, this is not the substantial purpose underlying the inspection function carried out by these entities whose activity is directly linked, in an obvious way, to preventing the detrimental or harmful effects that the activity of landfill produces on the environment and on living beings, issues that are specific to the matter of the environment.

Thus, it is the competence rule of art. 149.1.23rd SC which we must consider more specific.

Doctrine prepared by the Constitutional Court in relation to environmental verifiers. Designation of accreditation entities «only consists of verifying compliance with the requirements that are required of them to have such a condition, which, without any doubt, falls within the scope of the executive or applicative function».

Regulatory powers of the State for the establishment, as basic legislation, of the requirements to be met by collaborating entities, accreditation entities of the same, what is discussed are the powers of execution of the Autonomous Communities in environmental matters that include , in accordance with said jurisprudence, the designation of the entities whose function is to accredit the collaborating entities that carry out the inspection function of landfills with fundamentally environmental content, an executive function that corresponds to the Autonomous Communities.

We annul the subsection of section 4 of its art. 17 that ENAC designates as an accreditation entity for violating the constitutional order of competences.