The new Ministry of Environment and the Environmental Superintendence
LAW THAT CREATES THE MINISTRY OF ENVIRONMENT, THE ENVIRONMENTAL SUPERINTENDENCE AND MODIFIES THE STATUTE 19.300
On January 26th, 2010, Statute 20.417 was published creating the Ministry of Environment and the Environmental Superintendence, hoping to spur the protection of the environment and correct the weaknesses detected during the implementation of the Statute 19.300.
In order to join the OECD, a series of modification in our legislation have had to be carried out in different fields, such as bank secrecy, corporative management and as well in matters concerning the environment. Therefore this modification has been the result of our admission to the OECD.
However, it should be noted that this statute has also tried to correct the various weaknesses present in the original statute and that have been mentioned by the doctrine, as well as give legislative coverage to practices already implemented.
This statute creates the Ministry of Environment, which will have among other functions, that of devising environmental policies and programs and to keep a register of emissions and transfers of pollutants, in which the information of stationary sources will be registered. This Ministry will have an Advisory Council formed by representatives of various bodies (universities, trade associations, etc.), which will have a technical aspect.
A Council of Ministries for Sustainability will exist, which will pronounce on Bills that will have an environmental impact. This Council of Ministries will be chaired by the Minister of Environment together with the assistance of other ministers, whose portfolios have an environmental impact.
An Environmental Assessment Service will be created, which will be in charge of said assessment.
An Environmental Superintendent will be created which will conduct the monitoring and inspection pertinent to project authorization, the measures of prevention and decontamination plans, the quality and emission standards, including industrial liquid waste and management plans. In its auditing faculty, it is authorized to issue fines and order the closure of a facility, or the revocation a project authorization (RCA).
This system provides for the implementation of a specialized judiciary composed of Environmental Tribunals. The Environmental Tribunals have been issued by the June 28th, 2012 publication of Statute 20600. In accordance with Art 1 of said legislation, the implementation of such a tribunal system will happen within six months of the date of publication.
The environmental policy always was a topic that was little clarified before the reform.
Today, a Strategic Environmental Assessment System is established at a governmental level. This system will clarify for companies what type of activities can be developed in each region. Furthermore, it will become much clearer what the environmental policies and plans will be, since these must conform to this assessment.
In the same sense, the projects that enter the Environmental Assessment System will have to be related to policies and plans at a regional level, what must be clearly described in the respective DIA or el the corresponding EIA.
Citizen participation and access to information
One of the major criticisms caused by the old 19.300 Statute was the lack of citizen participation in the environmental assessment process of projects and the enactment of new regulations which had an environmental impact.
With this modification it is hoped that citizen participation will increase, allowing it even to participate in the projects that are subject to a Declaration of Environmental Impact (DIA) and making a new call for citizen participation when the explanations, extensions, and corrections of both the DIA and the Environmental Impact Studies (EIA) substantially modify the project.
In addition, it establishes a new form of notifying which projects are subject to an assessment, through radio notifications.
Another constant criticism of our environmental regulatory system is the difficulty of its access and knowledge, for this, a system to access environmental information will be created, which will be accessible through a web page and will contain, among other things, the environmental legislation, jurisprudence, and Comptroller report.
A preventative rather than coercive system
At first sight, and as the media have indicated, it is possible to think that the penalty system in environmental matters has been reinforced.
An Environmental Superintendence has been created, which will have the supervisory characteristics of a Public Notary and may apply sanctions to individuals discovered to be in breach or at fault. In the exercise of its supervisory powers, the Superintendence may issue fines of up to 10’000 UTM, the temporary or permanent closure of projects or the revocation of the RCA (project authorization).
However, if the detention law is closely reviewed, it is possible to notice that the true spirit is not to punish, but rather, to prevent the actions of individuals that may damage the environment.
Although a Bill is being considered that seeks to create Environmental Tribunals, the idea is not to end up in never-ending trials and to issue heavy fines, while the environment around us degrades.
It is for this reason that this amendment has a series of instruments at its disposal attempting to avoid environmental accidents and to encourage the prevention and reparation of damages, more than punishing them.
First, nothing is trying to avoid the people seeking subterfuge to avoid the entry of their projects to the Environmental Assessment System (SEA).
Should the Superintendence detect a project submitting an application to SEA for a sectoral environmental permission, it may inform the respective public service and prevent from granting one.
Also, municipalities may not give the final approval of those projects that are subject to an Environmental Assessment.
Furthermore, it is forbidden to fraction projects in order to prevent them from entering into the SEIA as was previously done with real estate projects; the infraction of this prohibition is punishable.
Second, a private system of preventative investigation will be created.
A process of evaluation and certification of compliance with the environmental regulations carried out by private auditors shall be created to which the companies submitting a DIA are subject to.
The Superintendence may also compel certain companies to carry out programs of evaluation and certification of conformity with the environmental regulations, and the cost of such programs shall be borne by the holder of the project.
The advantage of this system is that sanctioning processes may not be started as a result of findings of the certification.
Third, it is hoped that persons will not conceal environmental accidents and shall take necessary measures to repair them.
The persons that report themselves will be exempted from the total amount of the first fine and a substantial reduction will be applied in the following instances if necessary.
In addition, starting a sanctioning process, a fine may be suspended if within ten days of initiating a program of completion is presented.
If a company is sanctioned, it may voluntarily present a plan for reparation guaranteed by a technical study, which will be revised by the Environmental Assessment Service. If the plan is satisfyingly executed, the lawsuit will be automatically dropped.
Improvement of the Environmental Assessment System
This law seeks to rectify a series of weaknesses of the SEIA (Environmental Assessment System) that had pointed to the doctrine and gave legal support to a series of practices which were common and public knowledge in the former Conama.
With regards to SEA in general, projects that focus on the exploitation of genetically modified organisms, as well as those protected, have been added to the list of projects that have to be submitted to SEIA.
It is peremptory now that a consolidated report of the Evaluation exists, enabling the authorities to pronounce on the project submitted for evaluation.
The RCAs will have a validity of 5 years. Once the time has elapsed without beginning the project a new application is required.
It specifically provides that the SEIA will be carried out through electronic means and the information shall be freely available on the website, as has been the case.
In the case the projects to be submitted to the SEIA are urgent projects dealing with disasters or cannot be stopped, the time of their evaluation is reduced by half. This it is intended to give preference to projects of interest to the country.
With regards to the Declarations of Environmental Impact, a simplified system is created for the smaller companies presenting a DIA, allowing small and medium-sized business to be more competitive in this field.
The DIA will have to justify the reason for the project and it must not be subject of an EIA.
With regards to the Environmental Impact Studies, projects that are near wetlands, glaciers, and conservation sites will be subject to an EIA.
It is mandatory to have an EIA for all projects that have been granted an RCA and are in an area of influence, even if they are not running.
The projects that present a risk to people’s health and, when no other primary norm of quality exists in Chile, will have to establish a section indicating the potential health risks to the surrounding persons.
It will only be possible to fully assess the benefits and advantages of this new law when all regulations will have been dictated, such as, for example, the certification of compliance with environmental regulations, the minimum work that must exist in a project so that the RCA doesn´t expire, etc…
Hopefully, within the next few months, these Regulations will be identified.