UXO risk assessment and ordnance discovery

As of June 26, 2016, according to the provisions of Law 177/2012 (which made amendments to Legislative Decree 81/2008), and given Ministerial Decree 82/2015, all obligations related to the risk of potential discovery of unexploded ordnance are definitively effective. In particular:

• in the list of "risks" subject to risk assessment (and preparation of the resulting document) contained in Title I, Art. 28 c.1 are added the "risks arising from the possible discovery of unexploded ordnance in temporary or mobile construction sites."
• in the list of works involving "special risks" are added "works that expose workers to the risk of explosion resulting from the accidental initiation of an unexploded war device found during excavation activities."
• the design coordinator has the obligation to assess, within the Safety and Coordination Plan (PSC), the risk due to the presence of unexploded ordnance found during excavation activities at construction sites (art. 91 c. 2.bis) both on land and at sea, a provision also contained in art. 100 and minimum content of the PSC in Annex XV point 2.2.3 letter b-bis.

Being a minimum content of the PSC, the assessment must always be conducted, including for the purpose of excluding the possibility of its discovery.

This assessment, as part of the Safety and Coordination Plan, can be carried out, for example, on the basis of available data:

• historiographical analysis;
• bibliographic sources of local history;
• sources held in State Archives: archives of provincial air-raid protection committees and archives of prefectures;
•  Ministry of Defense sources: BCM Offices of the 5th Infrastructure Department in Padua and the 10th Infrastructure Department in Naples responsible for northern Italy and southern Italy and islands, respectively;
• Carabinieri Stations;
• National Aerophoto Library in Rome;
• proximity to road lines, railways, ports or otherwise strategic infrastructure during the war conflict;
• any previously reclaimed areas close to those under consideration;

And, in any case, the documentary assessment, if "insufficient due to the paucity of available data, may be supplemented by instrumental analysis."

It should also be noted that there is currently no official comprehensive mapping of all areas of the national territory affected by the presence of possible ordnance.

Italian current regulations

The risk assessment inherent to the presence of unexploded ordnance must be understood to refer to excavation activities, of any depth and type, as expressly provided for in Article 28 of Legislative Decree No. 81/2008, falling within the scope of Title IV of the aforementioned decree.

- D. Legislative Decree No. 20 of February 24, 2012 amending and supplementing Legislative Decree No. 66 of March 15, 2010 - Code of Military Order;

- D. Legislative Decree No. 81/2008 as amended and supplemented;

Italian BST and BSS Directives

Legislative Decree 66/2010 - Code of Military Ordering -, by Article 22 paragraph 1 letter c-bis, assigns to the Ministry of Defense the competence in the field of clearance of explosive ordnance remnants of war. In addition, the Minister of Defense's Ministerial Decree of February 28, 2017 identifies the Directorate of Works and State Property of the Ministry of Defense as responsible for the direction, coordination and control of systematic land and underwater war clearance activities, which as a precautionary purpose are carried out on the national territory by the parties concerned through enterprises employing specialized personnel.

A further piece of legislation that has nurtured interest in problems related to war reclamation is Law No. 177/2012, which in amending Art. 91 of Legislative Decree No. 9 April 2008 No. 81 on occupational safety for the clearance of war devices, established that the assessment of the risk due to the presence of unexploded ordnance found during the activities excavation at construction sites is carried out by the safety coordinator during the design phase (CSP). 

Therefore, when the design coordinator intends to carry out the preventive clearance of the site on which the construction site is located, the client shall arrange for a specialized contractor to be hired which will carry out the activity of searching for remnants of war on the basis of a binding opinion of the authority competent military authority (E.I. Infrastructure Departments and Navy Logistics Command Military) and through oversight measures of the competent bodies of the Ministry of Defense. This directive is intended to regulate the process for the issuance of the binding opinion for the purposes of carrying out the activities of Systematic Underwater Clearance from explosive ordnance remnants of war.

It prescribes a general course of action, indicating priorities to be met, objectives to be achieved and the factors to be considered. 

For anything not expressly outlined therein and immediately referring to the specific matter reference is made to existing legislation for all administrative, civil and criminal aspects related thereto.

To help companies and contractors understand French legislation concerning work on unexploded ordnance and explosive remnants of war (UXO/ERW), the Syndicat des Métiers de la Dépollution Pyrotechnique (SMDPYRO) has published a guide setting out the various provisions relating to this risk: 

https://www.smdpyro.fr/_files/ugd/0eff36_83fd65d661584f87b44662a7b419fb1d.pdf

Occupational health and safety are a European issue. Framework Directive 89/391 of June 12, 1989 on improving the safety and health of workers set out the general principles in the field of health and safety at work. It has been in force in France since 1993, and stipulates that employers must take all practical measures necessary to ensure the safety of workers and protect their health.

Book I of Part IV of the French Labor Code, entitled "Health and Safety at Work", the main source of legislation in this field, sets out the general principles of prevention, which derive directly from this framework directive.

French Internal Security Code

Regarding demining activities, the French Code de la Sécurité Intérieure stipulates that the detection, removal, neutralization, storage and destruction of explosives and booby traps are public works (article L. 733-1 of the Code).

The regulatory section of the French Code de la Sécurité Intérieure (Chapter III of Title III of Book VII) defines the respective powers of the two government departments responsible for civil protection, under the authority of the Minister for Civil Protection and the Minister for the Armed Forces.

French Labor Code: Safety obligation (Articles L.4121-1 to 3)

The safety obligation is understood as the employer's obligation to guarantee the physical and mental safety of all employees, as well as all risks to which employees may be exposed because of their duties.

And while the French Labor Code requires employers to take all necessary measures to ensure the safety and protect the physical and mental health of their employees, case law goes further by imposing a genuine obligation of result, i.e. extending to all aspects of ensuring the good physical and mental health of employees, the obligations originally put in place in the context of exposure to occupational risks and illnesses.

As the employer is obliged to achieve a result, in the event of endangerment of the employee or failure to ensure safety, the employer is automatically presumed liable. The only way to avoid liability is to prove force majeure or, failing that, that the employee himself contributed to the damage. 

Employers who fail to meet their safety obligations incur civil and criminal liability in the event of a workplace accident involving one or more employees. If the employer is found guilty of an inexcusable fault (e.g. failure to consider a significant risk), he or she may be ordered to pay damages.

All employers whose employees work on a site where there may be a risk from unexploded ordnance have a legal obligation to ensure a safe working system for their staff and, where applicable, for others, which adequately addresses the pyrotechnic risk.

French Decree 2005-1325 modified 2010-1260 and its 2 subsequent orders

The legislative structure currently applicable to all companies specializing in mine clearance and pyrotechnic pollution is set out in Decree 2005-1325, amended by Decree 2010-1260, and its two subsequent orders:

Order of January 23, 2006 establishing the level of knowledge required and the medical aptitudes for persons exercising the functions of pyrotechnic safety officer, pyrotechnic site manager and for persons called upon to carry out pyrotechnic decontamination operations.

Order of September 12, 2011 setting the rules for determining isolation distances for pyrotechnic decontamination sites.

In this sense, work to search for and identify unexploded ammunitions must be carried out by companies applying the amended Decree 2005-1325, using personnel certified for this type of operation.

French Certification of hyperbaric work companies

Article R4461-1 of the Labor Code, resulting from Decree no. 2011-45 of January 11, 2011 introduced Compulsory certification for Companies carrying out hyperbaric work. This obligation was then specified by the publication of the Order of September 29, 2017.

Companies, training centers, temporary employment agencies, scuba divers, Hyperbaric Prevention Advisors and all those involved in Hyperbaric Work operations must be certified.

Companies providing underwater work (mention A), must be certified by bodies accredited by COFRAC (Art. R4461-1), in accordance with the Order of September 29, 2017.

Order of September 29, 2017 relating to the certification of companies performing hyperbaric work (link to current version):

WWW.LEGIFRANCE.GOUV.FR

For any diving operations to be carried out, the company to be involved must have a certificate mention A (scuba divers carry out work in liquid environments) and the CAH (certificat d'aptitude à l'hyperbarie) classes of the divers must comply with the following diving depths:

• Class 0 : for a maximum relative pressure not exceeding 1,200 hectopascals, i.e. 1.2 bar, equivalent to a depth of 12 m;
• Class I : for a maximum relative pressure not exceeding 3,000 hectopascals (3 bar), equivalent to a depth of 30 m;
• Class II : for a maximum relative pressure not exceeding 5,000 hectopascals, i.e. 5 bar, equivalent to a depth of 50 m;
• Class III : for relative pressures more than 5,000 hectopascals (5 bar).

The CAH is valid for 5 years. It is subject to re-validation during the 5e year of ownership, at the initiative of the holder. If it is not renewed, it lapses.

French conclusions

In short, the detection, removal, neutralization, storage and destruction of explosives and booby traps are the responsibility of:

• Civil security demining services (DGSCGC) for all land areas, including the foreshore;
• Army mine clearance services (geographically competent group of mine clearance divers) for all underwater sections (excluding the foreshore).
• A presentation meeting with these departments should therefore be organized as soon as possible:
• Préfecture Maritime de la Méditerranée for the underwater section;
• Préfecture de Corse du Sud (or Corse du Nord according to area) for foreshore and land areas.

In our experience, only the removal, neutralization, storage and destruction of explosives will be carried out by French government departments. Search, detection and identification operations will then have to be contracted out to companies specialized in pyrotechnic diagnostics and clearance in compliance with the amended Decree 2005-1325 with certified personals, and with hyperbaric certification for any diving operations.

This company or these companies will be responsible for carrying out a work safety study in accordance with the current labor code, based on the provisions of Decree 2005-1325 as amended. 

This study will be presented to the various prefectures to agree on the coordination to be adopted.