Brazil: Contaminated Areas And Responsibilities For Environmental Degradation

Last Updated: 23 July 2013
Article by Felsberg E Associados

Last June 6, in celebration of Environment Day, the Governor of Sao Paulo Geraldo Alckmin enacted Decree-Law No. 59,263, which regulates Law No. 13,577, dated July 8, 2009, on the guidelines and procedures for the protection of the quality of the soil against noxious alterations by contamination. The decree reaffirms Companhia Ambiental do Estado de Sao Paulo – CETESB – as the relevant authority for matters concerning contaminated sites. In accordance with the Decree, CETESB is responsible for the planning and management of the process of identification, registration and rehabilitation of contaminated sites.

Who is responsible?

Those legally responsible – under strict and joint liability – are individuals or legal entities who may, directly or indirectly, either by action or omission, contaminate the soil. Therefore, any of the following can be held liable for a contaminated site: i) the agent who caused the contamination; ii) the owner of the contaminated area; iii) the holder of the land; or iv) the holder of effective possession. Likewise, the accredited service providers and technicians in charge of the execution of the Plans, Assessments and Investigations can be held liable for the executive stages in the process of intervention and rehabilitation. It is the duty of any and all of the people mentioned above to notify CETESB immediately if any alteration in the quality of the soil or groundwater is observed, and to follow the procedures established by the Decree. It is also mandatory to register the status of the property with CETESB according to its classification system.

Prevention

As established in the Decree, if at any point a determined degree of pollution is reached, the legally responsible parties must, of their own account, monitor the resulting impacts by means of a preventive monitoring program. Additionally, certain sites have become subject to compulsory monitoring, regardless of current contaminant levels: i) sites with Potential for Contamination where effluents or residues are released into the soil as part of a system for treatment or final disposal; ii) sites with Potential for Contamination where halogenated solvents are used; and iii) sites with Potential for Contamination where there is a foundry or mercury or lead recovery.

Assessment and Rehabilitation

CETESB will manage a database named the System for Contaminated and Rehabilitated Sites, containing information relevant to the contaminated sites. The new regulation presents more specific categories and corresponding procedures concerning the stages of the process of identification and rehabilitation of the contaminated sites. The ten categories are: 1. Sites with the Potential for Contamination; 2. Sites Suspected of Contamination; 3. Contaminated Sites under Investigation; 4. Contaminated Sites with Confirmed Risk; 5. Contaminated Sites in the Process of Remediation; 6. Contaminated Sites in the Process of Conclusive Monitoring; 7. Deactivated enterprises; 8. Sites Rehabilitated for a Declared Use; 9. Contaminated Sites in the Process of Reutilization; and 10. Critically Contaminated Sites.

Penalties

Acts or omissions contrary to the arrangements outlined by the Decree are considered to be an environmental administrative infringement. The penalties are: notice, fines (ranging from four to four million times the value of the State's fiscal unit – UFESP, the unit of which has currently been set at 19.37 BRL, roughly 8.55 USD), embargos, demolition and suspension of financial and fiscal benefits. Depending on the gravity of non-conformities in terms of technical incapacity, malice or noncompliance with the formulated requirements, the proceeding can be reported by CETESB in order that it may be criminally investigated by the Federal or State Attorney's Office.

Finally, according to CETESB there are currently 4,572 contaminated areas registered in São Paulo. This number represents a 10% increase in relation to 2012, with a total of 441 new entries. This figure represents the areas not suitable for use, as well as those classified as having been rehabilitated, and those in the monitoring process.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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