Odor Pollution and Regulation

Humans make decisions, often unconsciously, based on odors. Thus, by the odor we choose a flower and even lately have been found that we choose our couples. However, not all odors smell nice and there are odors that eventually can cause nuisance. The human development and the consequent enlargement of cities, has brought with the progress also nuisances, among these, the release of malodors into the environment. Nevertheless, odor pollution (hereinafter OP) was not a recurrent topic in national debates during last century. This has caused that its legal treatment has acquired some relevance only after 90's when the odor pollution became a major problem in its cities as well as citizens began to become aware of their right to live in a pollution free environment and that presence of pollution generate nuisances that undermine their quality of life. [2] In this paper I will briefly explore the general aspects of the odor pollution, then, I will analyze how the regulation in Chile and Germany prevent, control and sanction the odor pollution to finally conclude with a brief analysis of both legislations, some proposition if there are some and others consideration to bear in mind for the next legislation project.

Generalities about odor pollution

Citizen Complaint Pyramid.

Ambient air in the society holds a fusion of chemicals from the everyday activities of its citizens and the enterprises that make up modern day society. [3] In order to know when these mixtures of chemicals lead to an odor nuisance, it is relevant to apply the conceptual model called the 'Citizen Complaint Pyramid'. [4] According to this model, odor nuisance is usually a result of a series of odor episodes experienced by a citizen or citizens. [5] The frequency of these episodes -how often the citizen experiences odor episodes, the intensity of odors, and the character or offensiveness of odors contribute to the nuisance experience and the consequential citizen complaint. Therefore, the sum-up of all these elements may lead to an odor pollution nuisance. [6]

Not in my backyark behavior.

Common sources of odor pollution are industrial plants, incinerators for solid waste, industrial and municipal waste, water treatment plants and sewer systems, live stock farms. [7] Where should be located these installations is a key issue, since nobody wants them near their houses or the urban centers. Thus, in the United States the term 'not in my back yard' [8] has been established to illustrate the will of residential centres to preserve their territories far away from environmental pollution activities including the ones that generate nuisances to the population as the OP and noises emissions between others. This behaviour can be explained by the fact that in many cases the development of treatment plants have not been well implemented or controlled, generating the consequent rejection in society. One example of this situation has occurred in Chile in 2003, when after the inauguration of new sewage treatment plant in the Capital, residents near the installation were affected by a continues malodour [9] .

Methods to measure odor nuisance.

There are different methods to measure the odor nuisance. Nevertheless, existing methods estimating intensity and hedonic tone under laboratory conditions are not always accurate, because the results do not consider what residents perceive -known as the subjective element-. [10] Therefore, the European Union chose the dynamic olfactometric method, which incorporates this subjectivity through the constitution of a panel of experts whose only ability is to sense low concentrations of odors in the environment. [11] Thus, the panel integrates the subjective element to the survey.

Odor reduction methods

Measures that can be adopted to reduce odor pollution depend on many factors, between them, the chemicals that have been released and the territorial concentration of the emissions. Thus, the reduction of emissions can be managed through thermal destruction, activated carbon, biofilters or through the confine of the areas of activities that cause this emissions. [12] Other solutions for the abatement of odor pollution may require the execution of an alternative operation process or the optimization of the actual one, the use of closed reactors instead of open reactors or the encasement and source-oriented suctioning. [13]

Chilean and German legislation framework regarding odors.

Chilean legal framework.

The Chilean Constitution [14] gives the framework in terms of environmental protection. The fundamental guarantee established in Article 19 number 8 of the Chilean Constitution states that all individuals have the right to live in a pollution-free environment and the State has the duty to uphold this right and to safeguard the preservation of nature. [15] Therefore, all laws and decrees related to environmental protection should foster towards the implementation of this fundamental guarantee. [16] The same rule provides that, in order to protect the environment, the law may establish specific restrictions on the exercise of certain rights or freedoms. Likewise, and with regards to property rights, Article 19 number 24 paragraph 2 provides that only the law may establish the manner to acquire property and to use, enjoy and dispose of it, and the limitations and obligations derived from its social function. Said function includes all the requirements of the Nation's general interests, the national security, public use and health, and the conservation of the environmental patrimony. [17] In turn, and with the objective to bring remedy to the unlawful acts or omissions, Article 20 paragraph 2 states that if the right to live in a pollution free environment is affected by an unlawful act or omission attributable to an authority or a specific person, the protection remedy should be applied. [18] Therefore, any individual affected has the possibility to present recourse to the Court in which case the Court has the faculty and the duty to adopt any measure it considers suitable to establish the rule of law and protect the parties in those cases. In this duty, the Court has the faculty to order a stop of the contaminating activities or order an examination that may resort to other sanctions. [19] In a lower hierarchical order is the law number 19.300 [20] (hereinafter the Fundamental Environment Law), under whose provisions are regulated the right to live in a pollution free environment, the environmental protection, nature's preservation and the environmental heritage conservation. [21] This law defines, among others, pollution and pollutant, environment and what can be understood by a pollution free environment. [22] According to Article 2 (d) pollutant is not only that element, compound, substance, chemical or biological derivative, energy, radiation, vibration, noise or a combination of them, whose presence in the environment, in certain levels, concentrations or periods of time, may constitute a risk for human health, but also those that can undermine human's well-being, nature preservation or environmental heritage conservation. Therefore, the right to live in a pollution free environment not only refers to the presence of pollutants that put at risk and eventually can cause damage to the health of individuals but also to cases where their presence can affect people's quality of life, the preservation of nature and / or the environment heritage conservation. Regarding to the above, even if odor pollution may eventually constitute a real risk and harm people's health, it generally affects directly the welfare and people's quality of life of the population that lives near the sources of emission. Therefore, the issue of odor pollution must be placed in this last perspective.

Specific Chilean Regulations.

The current Chilean regulations have concentrated mostly in matters related to air pollution, air quality, regulation of dangerous gas emissions and only secondarily on odor pollution. Therefore, we can find only a few rules, very dispersed and of different origin addressing this particular issue. Among these: The Sanitary Code [23] in Article 89, letter a) [24] and b) [25] ; Decree 144 of the Ministry of Health [26] articles 1 [27] ,2 [28] ,3 [29] and 8 [30] ; The Civil Code [31] article 937 [32] the Criminal Code [33] article 496 number 20 [34] and the Decree 167 [35] which will be analyzed specifically . The Supreme Decree 167 enacted in 1999, is particularly relevant since it is the only legal instrument in Chile that regulates specifically the odor pollution. Even if it sets the emission standard for odors (Hydrogen Sulfide Compounds and Mercaptant: TRS Gases) it is only associated to sulphate pulp manufacture or kraft process. Therefore, we shall recall that installations not related to the kraft process are excluded from this regulation. The Supreme Decree establishes maximum amounts of TRS gases allowed in the effluent, the methodology for measuring and controlling these, deadlines and programmed levels of compliance regarding the emission standard. Furthermore, this Decree lays down that the respective Health Service shall approve the particular measurement system for each installation, taking into consideration the monitoring plan submitted by the owner of the installation. Regarding the infringement of this regulation, it states that in case of infringement the general rules contained in the Law 19.300 should be followed. Nonetheless, it is important to bear in mind that article 52 of the Law 19.300 establishes a presumption of responsibility to the author of the environmental damage, if there is infringement, inter alia, of environmental quality standards and emissions standards.

German legal framework.

Before 1972 every State of Germany was responsible to enact it owns regulations regarding air pollution. Therefore, only a few States had regulated about that issue. [36] Nevertheless, in 1974 the Federal Government enacted the "Federal Act on protection against detrimental effects on the environment caused by air pollution, noise and vibration" (hereinafter the Federal Immission Control Act). [37] Its purpose, between others, is to protect human beings against any harmful effects on the environment and to prevent the emergence of any such effects. [38] Thenceforth, odorous substances are an issue of environmental protection in Germany if they cause 'significant nuisance' in the neighborhood or to the general public. The Federal Immission Control Act, following the Directive 96/61/EC [39] (hereinafter the IPPC Directive), aims to prevent pollution of the atmosphere, water or soil wherever this is practicable, taking into account the particularities of each installation and of each environment, in order to achieve a high level of protection for the environment as a whole. Therefore, the Federal Immission Control Act establishes a licensing system for the operation of installations. This licensing system seeks to ensure that all prevention and control measures are taken in installations, particularly through the application of the Best Available Techniques (hereinafter BAT). In a second hierarchy level, coupled to the Federal Immission Control Act, the "Technical Instructions on Air Quality Control" [40] (hereinafter TA-Luft) contains a technical guidance for specific industries on how to achieve the general principles concerning air quality in the Federal Immission Control act and also includes provisions that protect the public from unacceptably high pollution levels from installations. In this regulation is also established the emission levels for different compounds and are calculated the immission levels based on the emissions allowed according to the regulation VDI-3940.

Odor Pollution Prevention and Control.

In the Chilean legislation, as explained above, the odor pollution has not been regulated with the only exception of the Decree 167 of 1999, but regrettably, this only concern TRS gases associated to kraft process. Thus, it is possible to say that in general terms Chilean laws do not typify, regulate prevent, control or even establish sanctions for odor pollution, as the German regulation does. The only viable way for affected people is to present a civil claim against odor pollution based on the damage produced to their property rights. [41] As a result, it is clear that these regulations are not sufficient to address this issue. Conversely, German Laws have established mechanisms to prevent and control the odor pollution. A licensing system, an emission and immission measurement method, safety checks procedures and sanctions to infringements have been established in the law. In the next pages I will briefly analyze the German legislation regarding the above and when it is possible a consideration regarding Chilean regulation about the issue will be made.

Licensing regarding odor pollution:

The Federal Immission Control Act in section four establishes that shall be subject to licensing the construction and operation of installations which, on account of their nature or operation, are particularly likely to cause harmful effects on the environment or otherwise endanger or cause significant disadvantages or significant nuisances to the general public or the neighbourhood, and the construction and operation of stationary waste disposal plants designed to store or treat wastes. However, an exception to some waste disposal plants and to open-pit mining installations has been established. Furthermore, this Act states that the Federal Government shall specify by ordinance, with the consent of the Federal Council (hereinafter Bundesrat), those types of installations which require licensing; the ordinance may also provide that licensing is not required for any installation which, in its entirety or in essential parts specified in the ordinance, has been type-approved and constructed and operated in accordance with the type approval. Moreover, regarding installations subject to licensing, section 5 establishes that they shall be constructed and operated in such a way that, in order to ensure a high level of protection for the environment as a whole, 1) harmful effects on the environment or any other hazards, significant disadvantages and significant nuisances to the general public and the neighbourhood are avoided; 2) precautions are taken to prevent any harmful effects on the environment or any other hazards, significant disadvantages or significant nuisances, in particular by such measures as are appropriate according to the best available techniques; 3) wastes are avoided, unavoidable wastes are recovered, and non-recoverable wastes are disposed of without impairing the public welfare; 4) economical and efficient energy use is ensured; 5) Installations subject to licensing shall be constructed, operated and closed down so as to ensure that even after cessation of operation the site is in the same conditions as it was before the operation. The license shall be granted if: 1) it is ensured that obligations arising from section 5 will be complied with; 2) the construction and operation of such installation does not conflict with any other provisions under public law or any occupational safety and health concerns. In the case of installations which are operated in different modes or where different substances are used the license shall, upon request, be extended to cover such different modes of operation and different substances if the prerequisites pursuant to number 1) above are fulfilled for all modes of operation and substances recorded.

Emission and immission measurements.

Section 26 of the Federal Immission Control Act that regulate the measurements taken for special reason states that, the competent authority may order the operator of an installation subject to licensing or, insofar as section 22 applies, of an installation not subject to licensing, shall allow measurements made by a specialized company when there is reason to fear that harmful effects on the environment may be caused by the installation. The competent authority is authorized to specify details regarding the type and extent of the measurements to be made. As well, according to chapter III, the operator of an installation subject to licensing shall, within a period to be fixed by the authority or on the date stipulated by the ordinance issued under section 27 subsection 4, provide the competent authority with information on the type and volume and the spatial and temporal distribution of the air pollutants emitted from the installation within a specified period, including the conditions governing such emission (emission declaration); The content of the emission declaration shall be disclosed to third parties. Nevertheless, it should not be published or disclosed to third parties if these could be used to draw conclusions concerning business secrets. What is more, the Federal Government is authorized to establish by ordinance, with the consent of the Bundesrat, the content, scope, form, time of the emission declaration and the procedure to be observed when determining emissions. Section 28 lays down that the competent authority may request the measurement of the emissions, after the commissioning or after an alteration, and after the end of any three-year period. Nevertheless, if in view of the type, volume and hazardousness of the emissions released from the installation, the authority can deem necessary to carry out measurements even during the three-year period. In Chile the Decree 167 of 1999 establishes that the operator of an installation that process pulp through the kraft method, shall send to the Health Service every three month, a declaration, which is attached to the Decree, specifying the emission measures obtained according the norm. Furthermore, the Health Services and Municipalities have the authority to audit the compliance of the regulation.

Safety Checks

Under the Federal Immission Control Act in the case of installations subject to licensing, the competent authority may order specific emissions or immissions to be determined continuously by means of measurement loggers in lieu of individual measurements pursuant to section 26 or section 28 or in addition to such measurements. However these measurements may be performed 1) at a specific date during the construction of the installation or else before commissioning of the installation; 2) at a specific date after commissioning; 3) at regular intervals; 4) in the event of cessation of operation or 5) if there is any evidence to suggest that certain safety-related requirements are not met. Regarding the submission of results, the operator shall present them to the competent authority no later than one month after completion of checks. Nonetheless, the operator shall present the results without delay if this is deemed necessary for averting imminent dangers. The costs for the determination of emissions and immissions as well as for the safety checks shall be borne by the operator of the installation if it is subject to licensing. In the case of installations not subject to licensing, the operator shall bear the costs for measurements carried out only when is proved that have not complied with the law and the standards. We could say that there is a lacuna in the Chilean legislation regarding safety check. However, from the moment that Health Services and Municipalities have the authority to audit the installations that perform a kraft process, we can consider that this particular lacuna is not relevant anymore. Indeed, in the event that the operator does not collaborate when a declaration is requested by the authority, the latter can easily audit the installation. With regard to the cost of measurements the Decree falls silent. However, from the moment that this measurement constitutes a requirement from the operator it is clear that he must bear the cost of it.

Sanctions in case of infrigment.

The Federal Immission Control Act establishes two kinds of fines that depend on the offence that have been done by the operator. The fines can go up to 50,000. [42] In Chile, the Decree does not establish sanction in cases of infringement, however it is is possible to appeal to sanctions established in article 56 of the Law 19.300. The sanction that can be apply according the Law 19.300 are: 1) admonition; 2) fines up to 1.000 UTM (Monthly Tributary Unit); and 3) temporal or definitive closure of the installation.

Conclusions

From the author's experience in Chile and analysis of legislation in this paper, although, generation of malodors is unavoidable, regulation aimed at preventing, controlling and sanctioning it, has been generally ineffective. Referring to the above, it can be deduced that the polluter pays principle, has not been totally effective in this area and better regulation regarding odor pollution is urgent. Thus, society as a whole must not continue paying externalities that only a few consume against the public interest. From the analysis performed in this paper can be clearly concluded that Chile lags behind Germany regarding odor pollution legislation. Current Chilean regulations are ineffective in preventing, controlling and sanctioning activities that produce malodors. However, it should be mentioned that despite new initiatives that have been proposed by the Chilean parliament in this field [43] , the legislator should take into account the progress that has been achieved in foreign legislation so as to avoid errors as the ones that figured in the project. In fact, this last legislation project has several shortcomings since 1) it does not require, as a condition of development of certain projects, the obligation to obtain a license issued by the authority; 2) it does not establish the emissions units for measurement; 3) it does not establish limits to those emissions; and 4) that sanctions are based on the latest annual income declared by the polluter. Therefore, in order to guarantee the success of this legislation project, I believe that the following modifications should be added: a) the legislation shall establish as a precondition for the development of these projects the previous procurance of a license that sets up, among other things, the emission limits of odoriferous substances, b) shall be stipulated the emissions units for measurement, for which can take in consideration the European Odor Unit, c) it shall establish emissions limits of each installation within their provisions, d) financial penalties shall have a minimum and a threshold and the penalties should also consider the damage caused; and e) shall be considered for the license the emission emitted by each installation as well the global amount of emission in the area. Without the modifications proposed, I consider that the gaps that would create such rule would leave the project without further application. In which case, the protection against odor pollution will continue in the current situation. Despite its great contribution to this area, the German legislation has also been criticized since it does not establish the meaning of 'significant nuisance'. This lacuna makes in some occasions more difficult the application of this regulation by the affected people. Therefore, a clear and concise definition is needed in this particular case. Furthermore, it should be noted that foreign regulations on this issue and the respective implications that these regulations have in the importation of products plays a positive role, since companies who want to export their products to other nations that have strictest regulations have to introduce higher standards in their process than the ones imposed by their own legislation. This effect has happened in Chile, mainly caused by the celebration of many bilateral an international treaties. Finally in my opinion, Chile should issue a law with the same bases and principles as the IPPC Directive, as it is the only global way to prevent and control our environment avoiding a legislation only focused on a single spectrum as it is currently the case in Chile.

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