After a more extensive examination of a complaint, the Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) assesses that the current regulatory framework does not provide sufficient guarantees to individuals potentially affected that their right to a healthy living environment due to vibrations caused by activities or construction will be effectively protected. There is no substantive law that would regulate such emissions into the environment both in terms of limit values ​​and, for example, in terms of the time limit for their occurrence. The Ombudsman has therefore addressed specific recommendations to the competent Ministry of Natural Resources and Spatial Planning and the Ministry of the Environment, Climate and Energy; judging by the responses received so far from the competent authorities, the path to a more appropriate adjustment of the regulation will still be long. The Ombudsman will also insist on his position within the framework of the examination of the broader issue.

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The Human Rights Ombudsman of the Republic of Slovenia (Ombudsman) considered a complaint by residents of the Črni Kal Local Community (KS) alleging illegal and disruptive nighttime mining, which was carried out during the construction of the Divača–Koper railway section (second track). According to the complainants, nighttime mining in particular threatens their right to a healthy living environment, as their nighttime rest is disturbed by the daily noise, dust, and excessive ground shaking. In their extensive complaint, the complainants highlighted explanations received from various sources that nighttime mining, which causes underground vibrations and is disruptive to residents, is not prohibited, and therefore the work can be carried out at any time. They addressed their observations to numerous authorities, including the then Inspectorate of the Republic of Slovenia for the Environment and Spatial Planning (IRSOP), whose tasks are now performed separately by the Inspectorate of the Republic of Slovenia for Natural Resources and Spatial Planning (IRSNVP) and the Inspectorate of the Republic of Slovenia for the Environment and Energy (IRSOE), and the then Ministry of the Environment and Spatial Planning (MOP), whose tasks are now performed by the Ministry of Natural Resources and Spatial Planning (MNVP) and the Ministry of the Environment, Climate and Energy (MOPE).

From the extensive documentation that the complainants provided to the Ombudsman, it is worth highlighting, from the perspective of relevance to the fundamental problem at this point, the partial environmental consent (OVS), which the Environmental Agency of the Republic of Slovenia (ARSO) issued to the holder of the aforementioned construction intervention. Among the prescribed conditions that the latter must meet during construction, ARSO also included conditions related to protection against vibrations, but it limited the blasting time (to the morning) only to the open parts of the route near the residential development, but did not do the same for the closed parts of the route.

Based on the results of a more extensive declaratory procedure and an examination of the responses received, the Ombudsman came to the conclusion that more specific regulation against excessive vibrations is limited only to legislation in the field of mining (regulation of blasting itself, the resulting emissions and the impacts of these emissions on nearby buildings)[1] but this does not encompass all aspects of the right to a healthy living environment. Vibrations as a type of emission can also occur in other cases (e.g. by carrying out activities that are not necessarily related to mining operations) and can therefore have an equally harmful effect on the surrounding area.^[2] Consequently, vibrations as a possible manifestation of emissions are defined primarily in environmental legislation, but more specific substantive regulation of permitted emissions, judging by the responses received, primarily by the Ministry of Environment and Forestry, does not exist from a systemic perspective.[3]

From the perspective of environmental regulation, there is the possibility of prescribing restrictions in each case separately, for example within the framework of the construction permit issuance procedure in an integrated procedure, in which the environmental impact assessment procedure (EIA) is combined with the construction permit issuance procedure itself, or within the framework of the environmental consent issuance procedure, when an EIA must be carried out for a specific intervention. Both options therefore presuppose the need to carry out an EIA, which thus serves as a starting point for a more detailed definition of the possible harmful effects of vibrations on the environment and the health of nearby residents. However, in the Ombudsman's opinion, this approach, which at first glance seems appropriate, in the absence of clearly prescribed limit values, gives excessive latitude to the discretion of each assessor, who may (or may not) prescribe the conditions and necessary mitigation measures - this further opens the door to arbitrariness in decision-making, which may result in unequal and insufficient protection of the right of potentially affected residents to a healthy living environment.

Since in the Ombudsman's opinion, there are several possible approaches to filling this legal gap, he addressed his recommendations to the competent MNVP and MOPE. The MNVP recommended that, when adopting relevant spatial acts[4] it should pay greater attention to the potential danger of excessive vibrations in the living environment in the future and, within the framework of its own competences, ensure the highest possible level of protection of a healthy living environment, for example, but not exclusively, by limiting works that would cause underground vibrations to daytime hours only, and if this is not possible, by adopting appropriate mitigation measures that would reduce the potential harmful effects of such emissions on the health of the affected population to the greatest extent possible. The Ombudsman recommended to the MOPE that the relevant regulations governing environmental interventions for which an environmental impact assessment must be carried out, to revise the content of the report on the impacts of the intended intervention on the environment and the method of its preparation (the Regulation on the Environmental Impact Assessment and the Regulation on the Environmental Impact Assessment Report) and other regulations related to this topic, and to examine the possibility of amending them in the sense of outlining clear limit values ​​for vibrations as potentially harmful emissions, including the entire legal framework for the methodology for their determination, defining all possible causes of such emissions and defining supervision. As an alternative to this, the Ombudsman recommended to the Ministry of Environment and Forestry that, in its own opinion, it address the issue in a separate legal act.[5]

The MNVP accepted the Ombudsman's recommendation in principle, but at the same time noted that the issue of noise and vibration should be addressed primarily from the perspective of obligatory actions, for which the MOPE is responsible[6] and, according to the MNVP, together with the Ministry of Health (MH), these are the primarily competent authorities for determining the limit values ​​of permitted emissions into the environment. Judging by the response, the MOPE did not accept the Ombudsman's recommendation. The MOPE expressed understandable concerns regarding the possibility of amending the Regulation on EIA and the Regulation on the EIA Report, but the positions of this ministry – that generally accepted standards of conduct in society, formulated on the basis of case law and legal theory, can also constitute a sufficient basis for assessing the right to a healthy living environment, and that the absence of explicit regulation of emission standards is not an obstacle to determining appropriate restrictive measures – have not convinced the Ombudsman for the time being. Namely, he assesses that a more specific substantive law regulation of vibration limit values, provided that there is first of all an expert consensus on their harmfulness, is necessary (as is the case with environmental noise limit values), primarily, but not exclusively with other aspects, in order to ensure equal legal protection of the right to a healthy living environment. The Ombudsman has therefore recently contacted the Ministry of Health and the National Institute of Public Health (NIJZ) with inquiries in order to comprehensively address this issue. The fate of this issue, which the Ombudsman now considers as a broader issue, important for the protection of human rights and fundamental freedoms and for the legal security of citizens and other persons in the Republic of Slovenia, is therefore still uncertain

The Ombudsman is aware that the occurrence of disruptive attacks (whether due to mining, construction work, or other activities) cannot allow for the mass occurrence of noise from the environment, which is why the topic of drafting regulations has probably received more attention in the past. However, the fact is that introduced emissions that can negatively affect the quality of life of exposed residents certainly exist in the environment, which is why a systemic and comprehensive approach by the state to resolving this issue is necessary. 17.1-7/2022

[1] It is primarily to be found in the relevant provisions of the Mining Act (ZRud-1) and the additional Rules on requirements for ensuring safety and health at work and on technical measures for blasting work when it comes to the exploration and exploitation of mineral resources, the performance of other mining work and the performance of blasting work in other activities (Rules).

[2] For example, the operation of multi-ton presses, which can have harmful effects on nearby buildings as well as on the health and well-being of surrounding residents. In this regard, the example of Delavska Street in the Municipality of Celje is worth highlighting.

[3] Point 4.3. of Article 3 of the current Environmental Protection Act (ZVO-2) defines emissions as the direct or indirect release or emission of substances in liquid, gaseous, or solid state or energy (noise, vibrations, radiation, heat, and light) or organisms or microorganisms from an individual source or dispersed sources into the environment. Point 4.4. further defines the fundamental concept of emission limit values ​​as prescribed emission values, which are determined as mass, expressed by specific parameters, concentration or emission level, etc., and may not be exceeded in one or more time periods.

[4] During the investigation, it turned out that, judging by the explanations of the MNVP, more detailed restrictions regarding mining and blasting can be prescribed when placing spatial arrangements in space. However, the relevant Decree on the National Location Plan for the Second Track of the Divača–Koper Railway Section (the Decree) does not define the time limits for mining or blasting in the construction of tunnels. Furthermore, the area of ​​the T2 tunnel is not recognised as an area where mining would be prohibited according to the relevant Environmental Impact Report.

[5] For example, by analogy, derived from the determination of limit values ​​for environmental noise indicators.

[6] Regarding the obligation to carry out a comprehensive environmental impact assessment before adopting a spatial plan and to prepare an environmental impact report or to carry out an environmental impact assessment in the procedures for issuing building permits and environmental consents after adopting a spatial plan.