En En Notice to Members

EUROPEAN PARLIAMENT 2009 - 2014 Committee on Petitions 20.4.2012 NOTICE TO MEMBERS Subject: Petition 0905/2011 by Michele Bertucco (Italian), on behalf of Lega Ambiente, bearing 6 signatures, on the construction of an electric modulation plant at Cessalto (Treviso, Italy) 1. Summary of petition A decision of the Veneto Regional Executive of 23 March 2010 authorised the construction of a 132 MW natural gas-fired electric modulation plant in the Commune of Cessalto, province of Treviso. The petitioners seek to ascertain that the project complies with European directives on Environmental Impact Assessments and atmospheric pollution. 2. Admissibility Declared admissible on 8 December 2011. Information requested from Commission under Rule 202(6). 3. Commission reply, received on 20 April 2012 The petitioner objects, on behalf of the Association Lega Ambiente, to the authorisation (Decision n° 1209) granted on 23 March 2010 by the Regional Council of Veneto to the company Sorgenia S.p.A to set up a natural gas-fired power station with a total rated thermal input of 132 megawatt (MWth) producing an electrical output of 41-49.9 megawatt (MWe) (thereafter the "combustion plant") in the industrial area Cessalto (Treviso Province). The petitioner claims that this authorisation should not have been given on the following European Union law-related grounds: CM\899867EN.doc PE487.855v01-00 EN United in diversity EN - Directive 85/337/EEC of the Council of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, as modified (hereafter "Directive 85/337/EEC")1 would have been infringed as no proper environmental impact assessment (hereafter "EIA") would have been carried out prior to the granting of the authorisation; - The natural gas-fired power station would result in significant additional air pollution in an area that is already affected by air pollution (e.g. pollution by PM10) in breach of Directive 2008/50/EC2 of the European Parliament and of the Council of 21 May 2008 on ambient air quality and cleaner air for Europe (hereafter "Directive 2008/50/EC"). In the light of the information provided by the petitioner and following contacts with the Italian authorities, the European Commission is of the opinion that nothing demonstrates that the March 2010 authorisation to establish the natural gas-fired power station in Cessalto has led to a violation of applicable EU law. By virtue of Article 2 § 1 of Directive 85/337/EEC, projects likely to have a significant impact upon the environment by virtue, inter alia, of their nature, size or location, must be made subject to an assessment of their effects prior to development consent. The types of projects that fall within the scope of the EIA are listed in Annexes I and II of Directive 85/337/EEC. In accordance with Article 4 § 1, those that are mentioned in Annex I must be made subject to an EIA procedure before an authorisation is granted. Regarding those that are referred to in Annex II, Article 4 § 2 and 3 provide that it is the Member States themselves that determine, either on a case-by-case basis or in the light of criteria or thresholds laid down in national law (and taking into account the criteria set out in Annex III of Directive 85/337/EEC) whether they must be submitted to a prior EIA procedure. Concerning combustion installations, they fall under Annex I (Point (2)(a)) when they have a heat output of at least 300 MW. All the other combustion installations are covered by Annex II (Point 3(a)), which sets no specific production threshold. It appears from the information contained in the petition that the contested combustion plant project has a production capacity of 41 up to 49.9 MW. Accordingly, it is not covered by Annex I of Directive 85/337/EEC, but by its Annex II. In this respect, one notes that Italian legislation transposing Directive 85/337/EEC provides that combustion plants must be made subject to an EIA whenever they have a rated thermal output of at least 50 MW. The combustion plants that do not reach this production threshold are subject, under national law, to a screening procedure that aims at determining whether significant environmental impacts may be caused by the proposed project and whether an EIA should thus be carried out. As a matter of record, the Commission has been informed that the Veneto Region did screen the proposed combustion plant project in accordance with Article 4 § 2 of Directive 85/337/EEC. As indicated in Decree n° 7 of 10 April 2009 of the (Regional) Direction of the 1 Directive 85/337/CEE has now been repealed and replaced by Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (codification). 2 OJ L 152 11.6.2008, p.1-44 PE487.855v01-00 2/4 CM\899867EN.doc EN Evaluation of Projects and Investments,1 the screening exercise concluded that there was no need to undertake an EIA procedure as no likely significant environmental impact had been identified. This conclusion was published in this Official Journal of the Veneto Region of 2 June 2009.2 In this framework, the Commission has been informed that legal proceedings were launched against the Decision of 23 March 2010 of the Regional Council of Veneto to grant an authorisation to the operator of this combustion plant and against above-mentioned Decree n° 7 of 10 April 2009. The Administrative Court of Veneto ruled on 16 February 20113 that neither the Decision nor the Decree would be annulled. In this context, it is recalled that national judges in EU Member States, including the administrative judge, have the obligation to interpret national law in the light of EU law and to ensure that the latter is implemented whenever it is applicable. The Commission is of the opinion that it should not seek to substitute the national judge who must guarantee the correct implementation of EU law. In this respect, the Commission notes that this approach is also supported by the European Parliament as specified in the European Parliament Resolution of 6 July 2010 on the Deliberations of the Committee on Petitions during the year 2009 (2009/2139(INI)) whose point (K) provides as follows: "whereas citizens should, in particular, be made aware that – as recognised by the European Ombudsman in the decision of December 2009 closing the inquiry into complaint 822/2009/BU against the Commission – national court proceedings are part of the process of implementing European legislation in the Member States, and that the Committee on Petitions cannot deal with issues subject to national court proceedings or review the outcome of such proceedings" In conclusion : - the petition does not include information that would demonstrate that the conclusions of the screening exercise were erroneous and that an EIA procedure had to be carried out; - administrative judicial proceedings have concluded that the authorisation Decision of 23 March 2010 and Decree n° 7 of 10 April 2009 would not be annulled. Regarding the levels of nitrogen dioxide (NO2) and of carbon monoxide (CO) in ambient air, as confirmed by updated data provided by the Italian authorities, the authorisation Decision of 23 March 2010 (Section 5) indicates that the applicable EU limit values set out in Annex XI of Directive 2008/50/CE are complied with in the Cessalto area and will still be respected once the combustion plant has entered into operation. Concerning the levels of PM10 and of oxides of nitrogen (NOx) in ambient air, for which some of the applicable EU limit values are not met in the Cessalto area, the following can be concluded from the above-cited Decision of 23 March 2010 (Section 5). 1 Decreto del Dirigente della Direzione Valutazione Progetti e Investimenti n. 7 del 10-04- 2009 2 Bollettino Ufficiale della Regione del Veneto – Supplemento al n.45 del 2 giugno 2009. 3 Tribunale Amministrativo Regionale per il Veneto, N. 00265/2011 REG. PROV. COLL. / N. 01462/2010 REG. RIC. CM\899867EN.doc 3/4 PE487.855v01-00 EN The critical NOx level for the protection of vegetation as set out in Annex XIII of Directive 2008/50/EC is 30 µg/m3 as the average over the calendar year. It results from the authorisation decision of 23 March 2010 that the contribution of the combustion plant to the ambient NOx concentration in the Cessalto area will amount to 0,046 µg/m3, which can be considered negligible (0,15% of the critical level). In this context, it should be noted that the emission limit value for NOx that is imposed at source upon the combustion plant by the authorisation decision is 50 mg/Nm3, which is in line with the conclusions of the Reference Document on Best Available Techniques for Large Combustion Plants (July 2006)1 elaborated and adopted by the Commission under Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control.2 As far as PM10 is concerned, the limit value for its annual average ambient air concentration, as set out in Annex XI (B) of Directive 2008/50/EC, is 40 µg/m3. This limit value has been complied with in the Cessalto area since 2006. In this respect, the authorisation decision indicates that the contribution of the combustion plant to the annual average PM10 concentration will not exceed 0,005 µg/m3, which can be considered negligible (0,0125 % of the limit value) and will not lead to non-compliance with this limit value.

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