INTRODUCTION
Water Pollution in Portugal has reached in the past twenty years an increasing level due mainly to the development of Portuguese industry and the growth of the population living in the main cities. This level of Water Pollution is also based on the fact that the construction of basic sanitation substructures is still to be finished. Nevertheless, we may say that, in general terms, the water quality, superficial or underground, in Portugal is considered acceptable. We must state that more than 70% of the Portuguese population is served by underground waters, which, in case of pollution caused, e.g. by an industry, are known to take a much longer period of time to recover from such pollution.
THE ENVIRONMENTAL MAIN LAW
Considering the above said, the Portuguese Legislator is specially concerned with the Water Pollution. The Law n. 11/87 - "The Environmental Main Law"("EML") [see our previous contribution "Overview on Portuguese Environmental Law"] sates that one of its purposes is to implement new legislation in order to:
- rationalize the use of water;
- coordinate the necessary actions to preserve and optimize the good use of water;
- establish a protection area along the coast border;
- develop and apply Water Pollution prevention and fighting techniques;establish the obligation to the industry to depurate their water before sending it to the main collection system.
The EML also states that all the water uses must be subject to a previous authorization given by the proper authorities.
OTHER LEGISLATION
In order to execute the objectives stated in the EML in what concerns Water Pollution several important laws have been enacted. The first and one of the most important pieces of legislation is the Decree Law n. 70/90 that establishes the disciplinary rules of the public hydric domain. One of its concerns is the respect for the hydrographic basins (still to be created) and the rational use of water. The main principle of this law is the licensing of any kind of use of water by the Water Institute (WI). This principle has of consequence the imposing of fines against any entities which does not comply with such licensing obligation. Such fines can vary between PTE 100.000$00 and PTE 20.000.000$00, and in certain cases can even be as high as PTE 100.000.000$00. In what concerns Water Pollution, someone that throws or deposits wastes that are able to change the characteristics of water or that degenerates the environment is subject to a fine which can vary between PTE 10.000$00 and PTE 500.000.000$00. Finally, industries that evacuate degenerated waters without depuration can be sentenced to pay a fine which can vary between PTE 200.000.000$00 and PTE 500.000.000$00.
A second very important law is the Decree Law n. 74/94 on Water Quality. This text also states that any residuary water discharges must be subject to a license, and the lack of this license is subject to a fine which can vary between PTE 200.000$00 and PTE 40.000.000$00. The infringement of any of the water quality regulations by someone that introduces or releases into the water any substance or energy thereby creating a risk of degradation of its quality or changing its own characteristics or affecting the conservation, nutrition or feeding value of the aquatic fauna, is subject to a fine which can vary between PTE 200.000.000$ and PTE 500.000.000$00. Other penalties, such as the temporary or definitive closing of the industry that caused the pollution, are also foreseen.
Furthermore, another piece of important legislation is the Decree Law n. 46/94 that establishes the disciplinary rules of the hydric domain under the jurisdiction of the Water Institute (WI) (private and public domain, except for the situations predicted in the Decree Law n. 70/90 above). Its concerns are - through the licensing of any kind of use of water and any kind of construction in the hydric domain - the respect for the National Water Plan and for the hydrographic basins plans, as well as for: (a) the public instruments for the territorial management; (b) the coast border management plans (in creation); (c) the protected areas. These licenses are to be granted by the Local Direction of the Natural Resources (LDNA). This licensing obligation has of consequence the imposing of fines against any entities which does not comply with that obligation which can vary between PTE 10.000$00 and PTE 10.000.000$00. In what concerns Water Pollution, someone that throws into aquifers or deposits therein any substance or product in its solid, liquid or gaseous nature which are able to provoke its pollution, thereby changing the characteristics or causing it to become improper for its uses can be sentenced to pay a fine which can vary between PTE 100.000$00 and PTE 10.000.000$00. Moreover, someone that evacuates degenerated waters without depuration can be forced to pay a fine which can vary between PTE 500.000$00 and PTE 500.000.000$00.
A number of other laws have been enacted for specific water uses or to control a specific kind of Water Pollution:
- Decree Law n. 84/90 (Preservation of the Water Sources)
- Decree Law n. 85/90 (Preservation of the Industrial-mineral Water)
- Decree Law n. 86/90 (Preservation of the Natural-mineral Water)
- Decree Law n. 87/90 (Preservation of the Geothermic Resources)
- Regulation n. 809/90 (Disciplinary rules for the discharge of water used in slaughterhouses and meet processing units)
- Regulation n. 810/90 (Disciplinary rules for the discharge of water used in pig breeding exploitations)
- Regulation n. 505/92 (Disciplinary rules for the discharge of water from the cellulose paste sector)
- Regulation n. 512/92 (Disciplinary rules for the discharge of water from the tannery sector)
- Regulation n. 1030/93 (Disciplinary rules for the discharge of water from the surface treatment sector)
- Regulation n. 1033/93 (Disciplinary rules for the discharge of water from the industry using mercury)
- Regulation n. 1049/93 (Disciplinary rules for the discharge of water from the industry using amianthus).
CRIME OF WATER POLLUTION
The Portuguese Criminal Code now defines, in Article 279, a Crime of Pollution as follows:
"1. Whosoever, to an unacceptable degree:
a) Pollutes waters or soils or, in any way, affects their qualities;
(...)
Shall be sentenced to imprisonment of up to 3 years or to a fine of up to 600 days.
2. If the conduct referred to in no. 1 is carried out through negligence, the agent shall be sentenced to imprisonment of up to 1 year or to a fine.
3. The pollution occurs to an unacceptable degree whenever the nature or the amount being discharged or introduced is contrary to rules or restrictions set down by the competent authority in accordance with legal and regulatory provisions under sanction of application of sentencing as laid out in this article."
Some critics to this article of the Criminal Code are to be made. The most relevant critic is that it is difficult to define the term "unacceptable degree" and the Legislator chose to left the definition of those terms in the hand of the judges. Finally, we must state that there aren't until this moment examples of court decisions where this article has been applied. This can be a sign of a lack of preparation from the Public Authorities to deal with this new type of crimes.
CONCLUSIONS
We can see that in what concerns Water Pollution an extensive legal frame has already been created in Portugal. Nevertheless, industrials still fail to comply with such laws or regulations due to the lack of supervision or fiscalization by the Public Authorities and the low fines which are applied by them when a situation is detected.
The contents of this Article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
For further information contact Ant¢nio Esteves da Fonseca or Manuel de Andrade Neves, Abreu, Cardigos & Partners, Lisbon, Portugal.
