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I. Odour pollution is a significant environmental issue that, if overlooked, can affect public amenity and the quality of life. Indeed, noxious (and even toxic) environmental odours may cause related health problems, triggering symptoms by a variety of physiological mechanisms, including exacerbation of underlying medical conditions, innate odour aversions, aversive conditioning phenomena and stress-induced illnesses.

Public awareness towards odour as an environmental nuisance has been growing over the years. The localization of housing developments near existing industrial and farming activities, the remarkable intensification of livestock farms and the increasing industrialization are among the causes of this phenomenon.

Our firm, Studio Legale Villata, Degli Esposti, Perfetti and Associates, given its extensive experience and expertise in the field of Environmental Law, has been dealing with this kind of issue, which is too often neglected by Italian legal framework and practise. We find ourselves confronted with matters concerning this subject with increasing regularity.

II. In fact, even though nowadays odour nuisance has been both internationally and scientifically recognised as a cause of pollution in its own right, and despite the fact that there are scientific objective olfactometry methods to monitor and measure odours, the Italian legal framework (with very few exceptions) does not provide specific and cogent limits to odour emissions.

On the contrary, it should be noted that several countries have developed and adopted specific legislations to guarantee the air quality of the environment and the successful abatement of noxious odours (for instance, Germany "Determination of odorants in ambient air by field inspections" 1993; Japan "Offensive Odour Control Law"; United Kingdom "Environment Protection Act - Part 1" and United States "ASTM D 1391-57 (1972) Standard method for measurement of odour in atmosphere").

III. On the other hand, Italian legal framework and case-law trail behind. The national regulation is quite lacking: apart from a provision specific to mechanical-biological waste treatment plants (Ministerial Decree 29th January 2007 - Best Available Techniques Guidelines) establishing an abatement rate of 99% (biofilter output concentration of 300 oue/m3), there are no general provisions imposing fixed limit values.

The Italian Environmental Code (Legislative Decree no. 152/2006) does not set forth any provision concerning odour pollution. The only relevant regulation from this code is the AIA ("Integrated Environmental Authorization"), which is the implementation of the European IPPC ("Integrated Pollution Prevention and Control") in the Italian legal system.

In fact, at the time of issue or renewal of the AIA, in accordance with article 29-sexies D.lgs. n. 152/2006, the competent authority (which changes in accordance with the relative Region) has the power to set limits on emission levels in the atmosphere, and these can affect the acceptable limits of odorous emissions.

However, it should be noted that the legislation has a limited scope: 1. It applies only to the plants subject to AIA; 2. The limit of the odorous emissions may not be imposed by the authority; 3. In any case, it does not provide a figure, indeed there is no general preset limit.

IV. There are other regulations that have been used to tackle the problem. Firstly, the articles 216 and 217 of the TULLSS (Consolidated health laws, Royal Decree 27 July 1934 no. 1265) state that "when vapors, gases or other fumes, water discharge, liquid or solid waste produced by the manufacturer or factory may danger or harm public health, the mayor prescribes regulations in order to prevent or impede the dangers or hazards to public health, insuring the implementation and efficiency of said regulations".

However, this provision (as well as the previous one) does not solve the problem, as 1. it is not universally applicable (pertaining only to the industries included in a specific list and considered "unhealthy"); 2. it is completely at the mayor's discretion; 3. it does not set out general preset limits.

V. The regulatory vacuum has meant that case-law had to resort to not pertinent regulation in order to try and deal with the problem. This is the case of art. 844 civil code and art. 674 penal code.

The first article ("Immissions") states that "The owner of a plot of land cannot prevent the spreading of smoke, heat, fumes, noise, vibrations and similar propagations onto his own land, arising from a surrounding plot, if said propagation does not exceed conventional tolerability, also taking into consideration the condition of the place [...]".

Evidently the provision does not aspire to safeguard public health. Furthermore its sole aim is to protect the right of ownership and therefore can be evoked only by the owner of a neighbouring plot.

The second article, on the "The dangerous throwing of things", states that "whoever throws or pours in a public place of transit, or in a private place but of common use to others, things that may offend, dirty or bother people, or, in cases not in accordance with the law, provoke gas emissions, vapours or smoke, able to bring about those negative effects, is punishable with a sentence of up to one month or with a fine of up to 206 euros".

The provision cited has taken on great importance in relation to odorous emissions, having enabled the repression of harmful conduct towards the environment and health, in spite of a lack of regulation predefining specific quantifiable limits to odorous emissions. Indeed it has been utilised in order to suppress odorous emissions that may surpass any limits established by the AIA, as well as those of a conventional tolerability under art. 844 c.c.

However, not even in this case is there a specific form of protection, which is either general or anchored in objective parameters.

VI. In contrast to national legislation, regional provisions are much more preservative. In fact some Regions have begun to adopt specific legislations targeting odour pollution.

In particular, Lombardy put in place a sanction on 15th February 2012, n.9/3018 entitled "General provisions on the composition of gaseous emissions in the atmosphere caused by activities which produce strong malodorous discharge". This sanction is for the first time establishing a general discipline that one may apply to "all the activities causing odour emissions which are subject to AIA, the authorisation of waste management. Moreover, one can apply to all the activities subject to VIA ("Environmental Impact Assessment") [...] that generate odorous emissions".

Even though this sanction does not set forth general preset limits, nevertheless it provides a specific procedure aimed at the management of odour pollution.

The procedure consists of various steps and includes the monitoring of odour emissions in accordance with a specific regulation aimed at establishing whether said emission should be considered tolerable. If the nuisance exceeds the limit of conventional tolerability, specific provisions are set forth in order to prevent the pollution.

This regional regulation is very important, since it provides for the first time a generally applicable instrument - utilizing objective criteria and a preset process - in order to address an issue to which the public is increasingly aware and currently neglected.

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