Former Ilva, Council of State overturns Tar sentence: no to stop the plants

No to the shutdown of the hot area of ​​the former Ilva plant in Taranto and the connected plants, whose production activities will continue regularly. This was established by the Council of State which accepted the appeal presented by Acciaierie d’Italia, annulling the sentence of the TAR of Lecce n.249 / 2021. The company, company sources explain, will therefore continue to operate. “In light of the pronouncement of the Council of State on the former Ilva, which clarifies the operational and legal framework, the government will proceed quickly on an environmentally compatible industrial plan and in respect of people’s health”, comments the Minister of Economic Development Giancarlo Giorgetti. “The objective – he explains in a note – is to respond to the needs of the development of the national steel supply chain by accepting the philosophy of the recently approved NRP”, he concludes. THE JUDGMENT – The order of the mayor of Taranto is not legitimate due to the absence of imminent danger. Section IV of the Council of State establishes this with sentence no. 4802 of today, with which, accepting the appeals of Arcelor Mittal Spa and Ilva Spa in extraordinary administration, annulled the ordinance n. 15 of 27 February 2020, with which the Mayor of Taranto had ordered them, in their respective capacity as manager and owner of the “ex Ilva” steel plant, to identify within 60 days the plants affected by polluting emissions and remove any critical issues, and if this had not happened to proceed in the 60 days following the “suspension / stoppage” of the activities of the plant. The ordinance was issued, in the exercise of the Mayor’s powers of necessity and urgency to protect the health of citizens, following episodes of smoke and gas emissions which occurred in August 2019 and February 2020 and subsequent environmental checks and sanitary. The Tar of Puglia, a detached section of Lecce, ruling in the first instance on the appeal of the two companies, had rejected it following a thorough investigation. In particular, explains the Council of State, the Section did not agree with the main thesis of the appellant companies, according to which any space for the Mayor’s intervention must be excluded as the remedies provided by the law, within the context of the integrated environmental authorization (Aia ) that assists the activity carried out in the plant, would be suitable to deal with any possible inconvenience. However, he considered that that complex of remedies (including the urgent powers already attributed to the Municipality by the 1934 Consolidated Law on Health), the remedies connected to the AIA which provide for the intervention of the Ministry of ecological transition and the special Ilva from 2012 onwards) is such as to limit the power of ordinance of the Mayor, already by its “residual” nature, only to exceptional situations in which the inadequacy of those remedies to deal with particular and imminent situations of danger to health is proven public. Given that the judicial assessment had to focus solely on the legitimacy of the Mayor’s ordinance without being able to extend to the long-standing and troubled events that have affected the “ex Ilva” plant (subject to an adaptation plan adopted on the basis of the post-2012 special legislation, the timing of which has already been considered legitimate by the Council of State with two opinions of 2019), the Section considered that in practice the power of the urgent order had been exercised in the absence of the requirements of the law, since the existence of “facts , elements or circumstances such as to highlight and adequately prove that the danger of recurrence of the emission events was so imminent as to justify the contingent and urgent order, or that the feared danger would involve an aggravation of the health situation in the city of Taranto, such as to induce to anticipate the schedule set for the implementation of the improvements ” of the plant. Therefore, the Council of State continues, without denying the serious environmental and health situation that has long existed in the city of Taranto, already at the center of criminal judicial events and a sentence condemning Italy by the European Court of Human Rights ( however relating to the previous management of the plant, with respect to which the measures taken in recent years have marked “a line of discontinuity”), it was concluded that “in this case the power of ordinance has ended up overlapping the methods with which, ordinarily, situations of environmental pollution and health risk are managed and faced for those production plants authorized by the AIA “, since there is no evidence of an” additional “danger compared to that ordinarily connected to the performance of industrial activities. Correspondingly, while not agreeing with the approach of the appellant companies which accused the Lecce TAR of having overrun its area of ​​judgment, ending up by dealing with the suitability and adequacy of the measures connected to The Hague rather than the legitimacy of the Mayor’s ordinance (where instead, the verification of the effectiveness of these measures was precisely aimed at ascertaining the existence or otherwise of the conditions for the intervention of the Mayor), the Section considered that the rejection of the appeal at first instance did not find comfort even in the results of the investigation carried out by the TAR itself, where on the one hand it emerged that the most recent emission episodes are not due to structural defects of the plant, on the other hand a mass of data has been acquired that is sometimes irrelevant and in any case not such as to prove in a way certain the existence of particular anomalies such as to constitute serious and imminent danger for the population. Also from this point of view, the ordinance is therefore issued “without there having been an unambiguous identification of the causes of the potential danger and without having sufficiently established the probability of their repetition”.