Overview (May 2011)

Introduction
Federal regulations
Other considerations

Introduction

Argentina is a federal country with 23 provinces and an autonomous territory, the City of Buenos Aires. It is the eighth largest territory in the world and the second of the region after Brazil. Due to the extension of the land (almost 4,000 kilometres (km) north to south), the coasts (about 7,000km), the varied geographical conditions and a developing interest in the exploitation of natural resources, protection of the environment and natural resources has grown in importance since 1994, the year in which the federal Constitution was amended.

Under the amended Articles 41 and 43 of the Constitution, all Argentine inhabitants have both a right to an undamaged environment and a duty to protect it. The primary obligation of any person held liable for environmental damage is to rectify the damage according to and within the scope of the applicable law.

The Constitution provides that the federal government is empowered to set the minimum standards for the protection of the environment, and the provinces and municipalities may establish specific standards and implementing regulations.

Since the amendment of the Constitution, nine laws have been passed determining federal minimum standards for the protection of the environment:

Most of the provinces have directly adhered to the federal regulations, while others have established more rigorous standards for the protection of the environment and provincial natural resources.

At the provincial level, there is a diverse variety of environmental regulations, which basically depend on the existing provincial natural resources and the types of industrial activity carried out within each territory. For instance, in the Patagonia region, a large number of regulations concern the oil and gas industry, while in the province of Buenos Aires, environmental regulations are aimed at controlling industrial activities in general.

Certain specific activities are governed by both federal and provincial regulations, such as the mining industry, which has been very active in the western provinces for the last decade.

Federal regulations

General environmental protection
More than eight years after the amendment of the Constitution, in November 2002 Congress made use of the constitutional mandate to set minimum standards for the protection of the environment and passed Law 25,675 on National Environmental Policy.

Law 25,675 provides the minimum standards for:

• the adequate and sustainable management of the environment;
• the preservation and protection of different species; and
• sustainable development.

This law sets out the objectives of the National Environmental Policy and creates a federal environmental system to coordinate the environmental policies of the federal government, the provinces and the City of Buenos Aires.

This law, which is applicable throughout the country, is used for the interpretation and application of specific legislation which will remain in effect for as long as it does not oppose the principles and provisions contained in this law.

According to one of the minimum standards provided in the law, any work or activity capable of significantly degrading the environment or its components, or which may adversely affect the quality of life, will be subject to an environmental impact evaluation prior to its execution or performance.

According to Law 25,675, where environmental damages have a collective impact, any affected person, the ombudsman, non-government environmental organisations and the federal, provincial and municipal agencies are entitled to request before a court that any damages be remedied. This law entitles individuals to request before a court the cessation of any activities which cause collective environmental damage.

Industrial waste
Law 25,612 on Integrated Management of Industrial and Service Industry Waste, which came into effect in July 2002, covers minimum standards related to the management of industrial and service industry waste. This law unifies under a single regime the management of waste generated through industrial processes, without making any distinction between 'hazardous industrial waste' and waste that does not meet the definition of 'hazardous'.

To this end, Law 25,612 provides for minimum environmental protection requirements for integrated management (eg, generation, handling, storage, transport, treatment and final disposal) of waste of industrial origin and waste generated by service industries anywhere in Argentina.

Hazardous waste
Law 24,051 on Hazardous Waste regulates the production, handling, transport, treatment and disposal of hazardous waste generated in areas subject to the jurisdiction of the federal government or where the waste may adversely affect more than one province, or if the waste is to be transported from one province to another.

Despite the fact that this federal law was passed before the amendment of the Constitution and thus is not considered a minimum standard for provincial further regulations, most of the provinces have directly adhered to the same or passed local regulations following the principles contained therein. This law follows the principles of the 1989 Basel Convention.

The law provides for the creation of a national registry with which all persons responsible for the production, transport and disposal of hazardous waste must register. Once a person is registered, it will receive an environmental permit which it must renew on an annual basis. Producers must pay a fee established by law and calculated utilising a formula based on the danger or quantity of hazardous waste produced and other relevant criteria.

The law imposes penalties on those that infringe the law, which may include fines and the closure of the offender's premises.

Air pollution
The Clean Air Law (20,284) applies in the federal jurisdiction and in those provinces which have adopted the provisions of this law. The law establishes general principles for the treatment of sources capable of contaminating the atmosphere. Enforcement of this law is vested in the respective national, provincial or local health authorities. The necessary complementary rules and standards are yet to be adopted, so the law has had little practical effect.

Water pollution
No specific national legislation on liquid effluents has been enacted. However, in the provinces, the City of Buenos Aires and certain municipalities, regulations prohibit industrial establishments from commencing activities or expanding existing facilities, even on a provisional basis, if such action would result in the discharge of waste into water courses and if the facilities do not satisfy the requirements provided in the regulations.

In November 2002 Congress passed Law 25,688 on Environmental Management of Waters, which provides for certain minimum environmental standards for the preservation of water and its uses, although few specific standards are established therein.

According to Law 25,688, a permit must be obtained from the competent authority for the use of surface and underground water.

Law 25,688 provides that a federal enforcement agency shall determine:

• maximum limits for contamination and protection of aquifers;
• instructions for the refill and protection of aquifers; and
• the fixing of parameters and environmental standards for the quality of waters.

Native woods
In 2007 Congress enacted Law 26,331 for the protection of native woods that are subject to federal jurisdiction. The provinces must provide their own specific legislation with equal or higher standards than those provided at the federal level.

According to this law, native woods are classified in three categories: red, yellow and green. While the clearing of native woods in the red and yellow categories is forbidden, those in the green category can be used as long as a plan to approve change of use of the soil is approved by each province. Certain native woods in the yellow category can be classified for these purposes in the green category.

Every project concerning the clearing of trees or the sustainable use of native woods must be approved by the appropriate provincial agencies, for which purpose an environmental impact assessment study must be approved and a public hearing must be held.

Glaciers
In October 2010 Congress passed the Law on Minimum Standards for the Protection of Glaciers and the Periglacial Environment. Law 26,639 was finally published in the Federal Official Gazette on October 28 2010 and was complemented by Executive Power Decree 207/2011.

Under the general guidelines of the law, 'glaciers' are defined as perennial ice masses that are stable or slowly flowing, with or without interstitial water, formed by the re-crystallisation of snow, situated in different eco-systems, whatever their shape, dimensions and state of conservation. Rocky detritic material and internal and surface water courses are part of each glacier. The high mountain periglacial environment is also considered, which is the area with frozen soils that functions as a water resource regulator. The mid and low mountain environment is the area that functions as a water resource regulator in ice-saturated soils.

The law also creates the National Glacier Inventory, in which all glaciers and periglacial geo-forms that act as water reserves within the national territory will be individualised, with all necessary information for their adequate protection, control and monitoring. The inventory must contain information on glaciers and the periglacial environment by hydrographic basin, location, surface and morphologic classification of the glaciers and periglacial environment. The inventory must be updated every five years, verifying the changes on the surface of the glaciers and the periglacial environment, their advance or retreat and other factors relevant for their conservation. The inventory and monitoring of glaciers and the periglacial environment will be carried out by the Argentine Institute of Glaciology and Environmental Sciences, with the coordination of the competent national enforcement authority. The Ministry of Foreign Affairs, International Trade and Religious Affairs will take part in the procedure when it refers to international border areas pending demarcation.

The enforcement authority of this law is the secretary of environment and sustainable development.

According to the law, the following activities are forbidden on glaciers:

• activities that may affect their natural condition or their function as a source of water resources, result in their destruction or movement, or interfere with their advance, particularly those involving the liberation, dispersion or disposition of substances or polluting elements, chemical products or residues of any nature or volume. Activities that take place in the periglacial environment are included in this restriction;
• the construction of architecture or infrastructure works, with the exception of those necessary for scientific investigation and risk prevention;
• mining exploration and exploitation, including activities taking place in the periglacial environment; and
• the installation of industries or the development of industrial activities or works.

Each jurisdiction, according to its police power, will set the penalties for non-fulfilment of this law and regulations will be enacted accordingly. These penalties may not be less severe than those established by the law. Jurisdictions that do not have a penalty system must apply the following penalties from the national jurisdiction:

• a warning;
• a fine of between 100 and 100,000 basic salaries for the initial category in the national public administration;
• suspension or revocation of authorisations. Suspension of the activity may be for between 30 days and one year, according to the circumstances; and
• termination of the activity.

These penalties will be applicable subject to prior proceedings within the jurisdiction where the infraction was made, and will be governed by the corresponding rules for administrative proceedings, guaranteeing due process, and graduated according to the nature of the infraction.

Other considerations

General rules of tort law
According to the Civil Code, an injured party may recover damages from the owner or custodian of an asset that produces environmental damage. In addition, the transferor of an asset which has a hidden defect and later causes environmental damage may be liable after the transfer. In the event of damages caused by several parties (eg, several industries polluting the same river), liability may be joint and several.

Under the general environmental law, in case of collective environmental damages caused by legal entities, tort liability can be extended to their managers, directors, statutory auditors and other officers who participate in the company's decision-making process, depending on their level of participation.

Criminal Code
In Argentina, persons who commit crimes against public health (eg, poisoning or dangerously altering water, food or medicine to be used for public consumption or selling products that are dangerous to health without the necessary warnings) may be subject to fines, imprisonment or both. Some courts have used these provisions in the Criminal Code to penalise the discharge of substances which are hazardous to human health.

Local and multi-jurisdictional authorities - increasing controls
In addition to federal, provincial and municipal bodies engaged in environmental matters, in recent years a number of multi-jurisdictional agencies have been created. One example is the Matanza-Riachuelo River Basin Authority, which was formed by the federal government, the province of Buenos Aires and 14 municipalities to prevent and control industrial emissions in the area surrounded by Matanza and Riachuelo in the southern limit of the City of Buenos Aires.

In recent years the federal secretary of environment and sustainable development has adopted a more proactive approach towards the prevention and control of contaminating activities. Likewise, provincial agencies, especially those in the province of Buenos Aires and the Patagonia area, have strengthened their environmental controls.

Other regulations
Specific federal, provincial and municipal environmental regulations exist for numerous industrial activities and industries, such as oil and gas, mining, sea land activities, food, electronic waste disposal and the transportation of radioactive materials.

For further information on this topic please contact Francisco A Macías, Federico S Deyá or Marina Cabral at Marval O'Farrell & Mairal by telephone (+54 11 4310 0100), fax (+54 11 4310 0200) or email ([email protected], [email protected] or [email protected]).