E 'configurable criminal liability of the owner authorization to perform the operations for the recovery of waste produced by others in the case of a breach of relevant regulations (Article 256, fourth paragraph, Leg. No. 152 of 2006), although the recovery activities is managed directly the third. Interesting
Court of Cassation on the activities of waste recovery and identity of the person responsible for any breach of authorization requirements. The Court, focusing on a particular factual context, he said that he who is holder and criminal liability for breach of authorization requirements, even if the management of are actually conducted by a third. The fact
The trial story is very simple. Following trial before the Court, the legal representative of a construction company, holder of an authorization to carry out waste recovery operations, using mobile crushers, issued by the provincial territorial jurisdiction, was acquitted by the breach of ' art. 256, fourth paragraph, Leg. April 3, 2006, No 152.
In particular, the activity recovery of waste was carried out at a construction site of another company, and, in the course of an investigation by the supervisors, was detected by a First, the breach of the duty to notify the province concerned of the site chosen for the conduct of recovery operations and, secondly, the violation of the provisions concerning the so-called test for leaching, to be performed in the manner required by the Annex to DM 5 February 1998.
The trial court justify the acquittal on the fact that, in fact, the task of managing the recovery of waste, consisting of building demolition waste, was managed directly by the company owner of the shipyard, the company which holds the In fact, it was limited to providing only hire the machine (consisting of a crusher for crushing necessary dei rifiuti edili) insieme all’operatore del macchinario medesimo; quest’ultimo, peraltro, come emerso nel processo, aveva svolto l’attività seguendo esclusivamente le direttive della ditta titolare del cantiere.
Il ricorso
Il P.M. proponeva ricorso per cassazione avverso la sentenza assolutoria ritenendo configurabile un’ipotesi di violazione di legge, sostenendo, in sostanza, che l’esatta interpretazione dell’art. 256, comma quarto, T.U.A. avrebbe dovuto condurre all’affermazione della responsabilità penale dell’imputata.
Ciò che rilevava, infatti, non era la gestione “di fatto” dell’attività di recupero, but, rather, the ownership of the authorization for the performance of its operations, due to the company whose legal representative was the beneficiary of the decision charged acquittal. The decision of the Supreme
The Court accepted the prospect of reaching the annulment of the prosecutor in his favor with reference to the first court for the correct application of the principle of law.
Before examining the motivational path is useful even if a quick clarification to better frame the present case, particularly in light of amendments made to Part IV of THY from the recent Legislative Decree no. 205, 2010. According
nuovi criteri di priorità nella gestione dei rifiuti previsti dall’art. 179 T.U.A., anzitutto, la gestione dei rifiuti deve avvenire nel rispetto di una particolare gerarchia:
a) prevenzione;
b) preparazione per il riutilizzo;
c) riciclaggio;
d) recupero di altro tipo, per esempio il recupero di energia;
e) smaltimento.
Le operazioni di recupero, quindi, sono oggi classificate al penultimo posto tra i criteri di priorità, anche il comma sesto dell’art. 179 prevede espressamente che “Nel rispetto della gerarchia del trattamento dei rifiuti le misure dirette al recupero dei rifiuti mediante la preparazione per il riutilizzo, recycling or recovery operation of any other matters shall be adopted in preference to the use of waste as energy source. "
The "recovery" is then defined by Novell Lett. t) art. 183, first paragraph, THY as "any operation the principal result of which is waste serving a useful purpose by replacing other materials which would otherwise have been used to fulfill a particular function or to prepare them to fulfill that function, inside the 'system or the economy in general "and Annex C of Part IV of YOUR back, then, a non-exhaustive list of recovery operations.
The execution of an operation recovery, then, is now also important for the cessation of waste (184-ter, TUA), as "a waste ceases to be such when it was subjected to a recovery, including recycling and preparation for re-use, and meets the specific criteria "to be adopted in accordance with the conditions specified by the first paragraph of that provision. In particular, the new forecast down today (second paragraph) that the recovery operation "can be as simple as checking of waste to see whether they meet the criteria developed pursuant to those conditions."
regard, then, the legal regime applicable waste recovery operations, the Legislative Decree no. 205 of 2010 has not innovated particularly with respect to the rules previously in force.
These activities, in fact, may be conducted under the simplified procedure provided for in Article. TUA 216, in particular, placed under the "notice of commencement activities," the exercise of the recovery of waste, ninety days of such notification to the provincial territorial jurisdiction.
must, however, be complied with technical standards and specific requirements of Article. 214, paragraphs 1, 2 and 3. In this regard, the third paragraph of Article. YOUR 214 provides that the rules, conditions and procedures Simplified must ensure that the types or quantities of waste and the processes and methods of disposal or recovery are such that it is not dangerous to human health and not harm the environment.
The law, however, relies on special decrees of the Ministry of the adoption, for each type of activity, rules, laying down the types and quantities of waste and the conditions under which the assets recovery Annex C to Part IV of the TUA shall be subject to simplified procedures under Articles. 215 and 216. Until the adoption of the decrees mentioned above, in respect of their recovery, continue to apply the provisions of the decrees February 5, 1998 the Minister for the Environment (for non-hazardous) and June 12, 2002, No 161 (for hazardous wastes).
In case of violation of the provisions of art. 216, art. 256 YOUR attests, the fourth paragraph, failure to comply with the requirements contained or referred to in the permits and the lack of requirements and conditions required for entries or communications, reducing by half the penalties provided for in the first paragraph, letters a) and b).
summarized the applicable rules, it is easy to understand the option followed by the Supreme Court. Although, in fact, the company which holds the conduct of operations recovery had been limited to providing rental machinery for the crushing of construction waste together with the operator (the situation covered in hot cd freight, which provides for the supply of goods and personnel to its use), remains intact responsibility of the holder, but is always of the latter is responsible for the recovery of waste carried by the mobile crusher (device designed for grinding and recovery varies from inert industrial waste), and compliance with the requirements of authorization.
That statement is fully correct, given the personal nature authorization to carry a typical management activities (collection, transport, recovery, disposal, trade and brokerage).
This explains why, for example., The Court's legitimacy mean that the holder may delegate the exercise of third parties which are free (see, in terms of: Cass. Pen. , Sec. 3, No. 24723 of 22/06/2007, C., and more, in Ced Cass. 236886; case in which the license holder to pursue the recovery of non-hazardous waste it had delegated the carrying out an unauthorized third party that used materials and equipment owned by the licensee).
(14/02/2011 Criminal Judgement Supreme Court, No 5346)
Source: IPSOA
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