Legislative alert: Approval of the Order amending Schedule I of RD 9/2005

The legal regime governing contaminated soil in Spain is defined in Contaminated Soil and Waste Law 22/2011, of July 28, 2011, and supplemented in Royal Decree 9/2005, of January 14, 2005, establishing the list of potentially soil-contaminating activities and the criteria and standards for a declaration of contaminated soil. Order PRA/1080/2017, of November 2, 2017, amending Schedule I of Royal Decree 9/2005, of January 14, 2005, establishing the list of potentially soil-contaminating activities and the criteria and standards for a declaration of contaminated soil, was recently approved (with entry into force on November 10, 2017). The aim of the Order is to duly update Schedule I, with a dual purpose. On the one hand, it aims to adapt the list of potentially soil-contaminating activities to the new classification established in Royal Decree 475/2007, of April 13, 2007 approving the 2009 National Classification of Economic Activities (CNAE-2009), to replace the previous classification from 2003 –CNAE-93 rev. 1-. On the other hand, the experience gained over a decade of application of this legislation makes it advisable to update the activities considered to be potentially soil-contaminating activities.

To this end, the order introduces new elements aimed at relaxing reporting requirements in the area of contaminated soil. Economic activities that, due to their characteristics, have zero or marginal potential to significantly affect soil are now taken into consideration. Specifically, the order includes a new column next to the column of activities, updated in light of the new CNAE, which indicates the specific situations or circumstances in which such activities cease to be considered potentially contaminating activities.

Among the changes made, equipment and machinery repair installations under heading 33 will notably be considered potentially contaminating activities when they involve underground tanks of hazardous substances, consume non-water based inks, paints or varnishes in excess of a set threshold, or when the potentially soil-contaminating sources are exposed to the elements. Equally, activities relating to transportation and storage (headings 49 and 52) will be considered potentially contaminating activities when certain circumstances are present, such as the existence of maintenance areas or workshops, fuel supply and storage facilities, storage of hazardous substances, among others.

Lastly, activities pursued at sports shooting facilities have notably been included as potentially soil-contaminating activities, since there is empiric evidence to support the existence of high concentrations of contaminants relating both to the ammunition and clay targets used.