Contaminated site regulation
Industrialisation in Brazil dates from the early 19th century and has always been focused mainly in the southeast of the country. However, as industry reorients to other districts as a result of economic and financial incentives, environmental damage from previously polluting operations is left behind, along with a number of brownfield sites.
In recent years the discovery of new contaminated sites has become routine for Brazil's environmental agencies. The authorities have therefore established specific regulations that aim to address the clean-up and public disclosure of such sites.
As the most well-established and important industrial area in Brazil, Sao Paulo State was a forerunner in legislation relating to contaminated sites. Local lawmakers passed a state law (Law 13577/09) in order to ensure that contaminated sites are subject to adequate identification, public disclosure and remediation.
This strategy was noticed at the federal level and the Brazilian Council for the Environment (CONAMA) passed Resolution 420/09, taking into account the need for a standard procedure and aiming to ensure the identification, public disclosure and remediation of contaminated sites elsewhere in the country. At a federal level, the CONAMA regulation:
- sets out the criteria and guiding principles for checking soil quality for the presence of chemicals; and
- establishes guidelines for environmental management of areas contaminated by such substances as a result of human activities.
Both the CONAMA and Sao Paulo regulations provide that contaminated sites, once identified, must be reported to the relevant environmental agencies, which may request a double check along with specific tests to be supported by the person legally responsible for the area - either the landowner or the possessor. Once contamination has been confirmed, the procedures for remediation and clean-up should be carried out by the person legally responsible for the area. As the contamination status changes during the remediation, different measures may be enforced by the environmental agency.
In debates by industrialists on the legislative measures for the management and clean-up of contaminated sites, the most critical concerns the public disclosure and inclusion of contamination in property records held by the Land Registry Office. This obligation has been condemned as detrimental to industry, as it may reduce the property value of a previously contaminated site, even after remediation, if property records remain unaltered.
However, the obligation to provide notice of contamination to the Land Registry Office is based not only on the environmental liability inherent to the case, but also on the principle of public access to environmental information, which is widely recognised in both national and international jurisdictions.
According to this principle, as established in the 1992 Rio Declaration on Environment and Development, environmental issues are best handled with the participation of all concerned citizens. All individuals should have appropriate access to information held by the public authorities that concerns the environment, including information on hazardous materials and activities in their communities, and the opportunity to participate in the decision-making process. Access to environmental information has therefore become mandatory, in order to guarantee the right to an ecologically balanced environment, as established by Article 225 of the 1988 Constitution.
By taking into account the risks that contaminated sites represent to surrounding communities, especially the contamination of other natural resources (eg, aquifers), public disclosure is a plausible measure that aims to protect individuals who may somehow be affected by natural resources damaged by the contamination.
Under Articles 32 and 37 of CONAMA Resolution 420/09, environmental authorities must publicly disclose the status of contamination to the Land Registry Office, which may publicise it along with the property records, in order to ensure public access to such information. Nevertheless, lawmakers in Sao Paulo have decided to attribute this obligation to the persons legally responsible for the property, which must themselves notice the contamination to the Land Registry Office.
The obligation to provide notice of contamination to the Land Registry Office is in line with both national and international environmental law. It must therefore be performed accordingly in order to make both the immediate community and future landowners aware of any issues. Future landowners may request access to the environmental records of the property before acquisition.
For further information on this topic please contact Maria Alice Doria or Lucian Moreira at Doria Jacobina Rosado e Gondinho by telephone (+55 21 3523 9090), fax (+55 21 3523 9080) or email ([email protected] or [email protected]).