Legislation

Main environmental regulations

What are the main statutes and regulations relating to the environment?

The most important legal instrument is the Constitution of the Dominican Republic, which mandates the preservation and protection of the environment and natural resources, and grants the right to sustainable use of the environment and natural resources.

The Environmental and Natural Resources Law No. 64-00 (the Environmental Law), enacted in 2000, establishes the basic principles of environmental protection, management and use of natural resources, and the civil and criminal liabilities and penalties.

Additionally, there are other legal instruments that complement the Environmental Law, such as:

  • the Protected Areas and Biodiversity Law No. 202-04; and
  • the technical rules approved by the Ministry of Environment and Natural Resources pertaining to:
    • air quality protection;
    • water disposal;
    • forestry management;
    • solid waste management;
    • toxic waste management;
    • noise controls; and
    • water quality and labelling for hazardous substances, among others.
Integrated pollution prevention and control

Is there a system of integrated control of pollution?

According to the Environmental Law, pollution is considered the introduction of contaminants into the environment that may harm humans, flora and fauna and diminish or degrade the quality of the atmosphere, water, soil or other natural resources and goods.

To prevent environmental pollution caused by human activity, the Ministry of Environment regulates all activities that may present a potential risk to the environment by way of an environmental permit. This permit allows the Ministry to enforce an environmental management and adaptation plan to avoid damage to the environment. Moreover, an environmental authorisation describes all impacts that may be generated by the corresponding activity as well as all actions necessary to avoid further risks. Authorisations may only be issued by the Ministry of Environment and Natural Resources.

Soil pollution

What are the main characteristics of the rules applicable to soil pollution?

The Environmental Law punishes any form of soil contamination in Dominican territory. Any individual or corporation that uses chemicals in its operations is required to request an authorisation from the Ministry of Environment. Moreover, the General Rule on Water and Disposal Control includes the levels and parameters of contamination allowed for different industries, which is subject to supervision by the corresponding authorities.

As for clean-up obligations, individuals or companies responsible for an activity that causes soil degradation have an obligation to compensate for the damages. If it is not possible to determine who caused the damage, the compensation process might be carried out by the Dominican government with national funds from the Ministry of Environment’s budget.

The Dominican Constitution does not permit the enactment of laws with retroactive effect.

Regulation of waste

What types of waste are regulated and how?

The Ministry of Environment and Natural Resources issues regulations regarding environmental management for non-hazardous solid waste. This includes any material in solid, liquid or gas state resulting from any process of material extraction, transformation, fabrication or consumption.

The regulation of non-hazardous waste complements the Environmental Law. The law defines hazardous waste as any substance, in any physical state, that has the potential to threaten the health of any organism.

The regulation for non-hazardous solid waste includes guidelines as to the precautions and requirements for handling certain types of waste, such as biomedical or nuclear waste. Some industries and special activities may also require an environmental authorisation that includes an approval for waste disposal.

In general, companies and individuals must protect, conserve, improve and use natural resources and the environment in a sustainable fashion. Everyone is required to eliminate non-sustainable production and consumption practices that undermine the reduction of waste.

Regulation of air emissions

What are the main features of the rules governing air emissions?

The current air emission legal framework in the Dominican Republic is based on two main regulations: the Environmental Regulation on Air Quality and the Environmental Regulation on Control of Atmospheric Emissions from Fixed Sources.

The Environmental Regulation on Air Quality determines the maximum amount of pollutant concentration permitted. The regulation is applicable to industries, businesses, projects, services or any activity that may cause pollution and affect air quality. Its overall purpose is the protection of public health. This regulation establishes limits for certain types of pollutants, as indicated in the following table.

Pollutant

Permitted limit

Time period

SO2 (sulphur dioxide)

100mg/m3

Annual

CO (carbon monoxide)

10,000mg/m3

8 hours

Pb (lead)

2mg/m3

Annual

The Environmental Regulation on Control of Atmospheric Emissions from Fixed Sources determines the maximum permitted amount of atmospheric emission from fixed sources. This acts as a compliance tool to satisfy the standards set by the Environmental Regulation on Air Quality.

Protection of fresh water and seawater

How are fresh water and seawater, and their associated land, protected?

According to the provisions of the Dominican Constitution, water is part of the nation’s heritage. Generally, rivers, lakes, lagoons, beaches and coasts are considered public property and accessible to the public. The Dominican Constitution also stipulates that the law will set conditions to regulate water usage.

According to Law No. 305, dated 23 May 1968, the 60-metre coastal strip that runs parallel to the sea is considered part of the nation’s public property, which is therefore accessible to the public. Similarly, there are regulations governing the existence and protection of surface waters and coastal areas.

The Ministry of Environment and Natural Resources has established technical regulations, which include quality parameters and maximum use permitted. For example, the Regulation on Underground Water Quality and Discharge Control seeks to protect, conserve and improve the quality of natural water bodies, underground bodies of water, in particular, in order to guarantee the safety of its use and promote the preservation of adequate conditions for the development of ecosystems associated with water.

There are limits on the withdrawal and discharge of water and the percentage of effluent in relation to the receiving body of water, which are controlled by the Ministry. Moreover, controls are established depending on the particular conditions of the receiving body of water, its capacity to assimilate pollutants, yearly level variations and the characteristics of the water basins.

Protection of natural spaces and landscapes

What are the main features of the rules protecting natural spaces and landscapes?

The Environmental Law and Sectorial Law No. 202-04 on Protected Areas regulate protected areas in the Dominican Republic. In addition, Executive Order 571-09 has created new protected areas, which must also be considered.

Protected areas consist of plots of land or sea especially dedicated to the protection and preservation of significant elements of biodiversity and natural or cultural importance.

The law contemplates six categories of protected areas whose objectives and uses correspond to the categories established by the International Union for the Conservation of Nature. The six categories are as follows:

  • the protection of certain characteristics such as scientific reserves (category I);
  • national parks (category II);
  • natural monuments (category III);
  • wildlife refuges (category IV);
  • natural reserves (category V); and
  • protected landscapes (category VI).

The Constitution and the Environmental Law stipulate that the Dominican government has the right to expropriate areas in order to preserve the environment. If expropriated, the owners must be duly compensated for their property at fair market value.

Depending on the type of protected area, the law may restrict the use and activities within said protected areas. In this sense, every activity or construction to be made within the limits of protected areas must be approved by the Ministry of Environment and Natural Resources.

Protection of flora and fauna species

What are the main features of the rules protecting flora and fauna species?

The Dominican Republic is a signatory to the Convention on International Trade in Endangered Species of Wild Flora and Fauna (CITES), which regulates the import and export of wild species listed in the treaty throughout the Dominican territory. The law pays particular attention to wild flora and fauna and establishes a special kind of protection. Environmental Law No. 64-00 encompasses the basic provisions for the protection of flora and fauna in the country, declaring such protection as a national priority and regulates their use through issuance of permits.

It also established particular protection for fishing and hunting. Fishing is regulated by the resolutions issued by the Ministry. These resolutions establish periods where such activities are permitted and set limits on the fishing seasons for certain species such as lobster, conch and crab. In regard to hunting, there is a general prohibition on hunting, except in the case of species considered invasive such as ferrets.

Noise, odours and vibrations

What are the main features of the rules governing noise, odours and vibrations?

In the Dominican Republic, the competent authorities with regulatory power on these matters are the Ministry of Environment, the various municipalities and the national police. These institutions are responsible for supervising the correct management and use of the instruments that could produce disturbing and damaging noises, odours or vibrations to the environment in residential, urban and rural areas.

According to the environmental regulation for noise protection, the maximum levels permitted by area in the country are the following:

  • quiet area (category I): maximum 60 decibels permitted during daytime;
  • residential area (category II): maximum 65 decibels during daytime;
  • business area (category III), which includes industrial and business areas: maximum 70 decibels during daytime; and
  • road areas (category IV): up to 70 decibels during daytime.

Noises originating from ambulances, car horns and sirens from security entities such as the police are excluded from the regulatory provisions of the Environmental Regulation for Noise Protection.

Liability for damage to the environment

Is there a general regime on liability for environmental damage?

Dominican legislation recognises civil, criminal and administrative liability for those whose actions or omissions cause damage to the environment.

In accordance with the Environmental Law and the ‘polluter-pays’ principle, anyone who causes damage (loss, reduction or deterioration) to the environment, natural resources or any of its components is held liable.

When a licence or authorisation holder inflicts damage on the environment, the process to determine the liability for the damage caused would depend on the terms’ limits or compliance framework set by the authorisation; therefore, if the authorities determine non-compliance in such terms they could penalise the holder.

Alternatively, if the polluter does not hold an environmental licence or authorisation, any interested or affected party has the right to sue the polluters for the damage caused. In this case, the judge could request input from an expert witness to assess the amount of damage involved in the infringement.

Environmental taxes

Is there any type of environmental tax?

The tax authorities together with the Ministry of Environment have not yet implemented the necessary environmental taxes to directly prevent activities that may have negative effects on the environment.

The first green tax established in the Dominican Republic was enacted in the 2012 tax reform. This reform established a tax on vehicles based on the percentage of the vehicle’s total value and its emissions of CO2 according to the table below:

CO2 emissions

Tax payable

Less than 120g CO2/km

0%

More than 120 up to 220g CO2/km

1%

More than 220 up to 380g CO2/km

2%

Over 380g CO2/km

3%

The Ministry of Environment has established administrative fees for the issuance of environmental permits on certain activities and projects. These fees are determined by taking into consideration the investment of the project and its main purpose.

Alternatively, the Environmental Law and Renewable Energy Law No. 57-07 established significant fiscal incentives and tax exemptions for investment projects that aim to protect and improve the environment, such as renewable energy projects, environmentally friendly technologies or recycling projects.

Hazardous activities and substances

Regulation of hazardous activities

Are there specific rules governing hazardous activities?

To issue the appropriate environmental licence, the Environmental Law requires an environmental impact study for companies or individuals interested in developing activities that involve the importation, production or transportation of toxic, radioactive, corrosive or dangerous substances.

The Ministry of Environment has an updated list of products and substances considered hazardous for the environment and public health, such as radioactive and chemical substances, as well as others with similar conditions, which are prohibited from guaranteeing the safety of the environment and the people.

In addition to the Environmental Law, the Dominican Health Law also regulates the use of hazardous equipment and activities in health facilities (ie, X-rays, MRI, imaging).

Regulation of hazardous products and substances

What are the main features of the rules governing hazardous products and substances?

Under the Environmental Law, toxic waste is defined as any material, in any physical state, containing a significant amount of substances that are or may be life-threatening when released into the environment, or any material that can affect human health, quality of life, natural resources or ecological balance when mishandled, due to its corrosive, toxic, poisonous, reactive, explosive, flammable, biologically harmful, infectious, irritant or any other harmful characteristic.

The Ministry of Environment has enacted a code for the transportation of hazardous substances and materials to control the use of such substances. This code contains the parameters and conditions under which these substances can be transported (transportation time, routes, inspections and labels, among others). Also, to be able to identify all hazardous substances, the Ministry has published a Labelling of Hazardous Substances and Materials Code.

Industrial accidents

What are the regulatory requirements regarding the prevention of industrial accidents?

In the Dominican Republic, all production activities are regulated by the Job Safety and Health Regulation Act No. 522-06. This act aims to regulate the conditions in which labour activities must be carried out to avoid accidents and health issues at the job site. The provisions in the regulation apply nationwide to all jobs. This regulation also grants rights and establishes obligations for employers and employees alike. The employer has the responsibility of providing safe and healthy workstations, which must be approved by the Ministry of Labour. The government institution in charge of supervising the correct enforcement of this regulation is the Industrial Safety and Hygiene Committee of the Ministry of Labour.

Moreover, an environmental permit is required for all industrial activities. Its validity and enforcement will depend on the compliance with an environmental management and requalification programme approved by the Ministry of Environment and Natural Resources.

Environmental aspects in transactions and public procurement

Environmental aspects in M&A transactions

What are the main environmental aspects to consider in M&A transactions?

The main difference between acquiring shares and purchasing an asset is that the purchaser of the share will acquire the shares along with all the liabilities associated with said shares (ie, any company liability to the extent of the amount of shares acquired). Alternatively, in an asset purchase, the purchaser would only acquire the liability associated with said asset.

Nonetheless, from an environmental perspective, it is necessary to determinate the type of asset acquired, since an asset could hold liability to environmental damage (ie, the extent of the liability could encompass the real estate where the damage occurred).

Furthermore, in M&A transactions, it is important to pay special attention to the consequences of the strict and joint civil liabilities regimes for environmental damage and to the validity of environmental licences. In general, the following issues should be reviewed:

  • environmental authorisations (scope and conditions);
  • environmental compliance of the corresponding authorisation before the Ministry of Environment;
  • technical compliance reports; and
  • investigations of civil and criminal suits related to environmental damage.
Environmental aspects in other transactions

What are the main environmental aspects to consider in other transactions?

Under Dominican law, a seller is not required to disclose environmental problems to the purchaser in a merger or takeover transaction. Nevertheless, such disclosure is normally required by contract and covered by warranty clauses.

Environmental provisions set forth in the Dominican Environ-mental and Natural Resources Law are of public policy; therefore, any agreements between the parties that minimise liabilities in the case of environmental damage will have no effect on third parties. However, it is possible to limit liability to an agreement between the parties, but such provisions will only be valid between them.

Environmental aspects in public procurement

Is environmental protection taken into consideration by public procurement regulations?

In addition to complying with the Environmental Law, parties involved in public procurement bids must abide by the special provisions established in the terms of reference and tender contracts. For instance, in cases such as coal refining and dam construction, the terms of reference and tender contract would include an environmental clause that must be followed by the developer. When drafting the terms of reference and tender contract, the government must specify the conditions that protect the environment and prevent environmental risks or damage, such as the prevention of waste, CO2 emissions and land use, among other variables.

Environmental assessment

Activities subject to environmental assessment

Which types of activities are subject to environmental assessment?

A developer must obtain the corresponding environmental authorisation before starting any activity that may affect the environment and natural resources, including non-industrial projects. Activities are divided into four categories (A, B, C and D). Categories A and B (environmental licence and environmental permit, respectively) require a stricter environmental assessment, while categories C and D (environmental authorisation and minimal impact registration certificate, respectively) are used to regulate activities with less environmental impact.

Environmental assessment process

What are the main steps of the environmental assessment process?

According to the regulations on environmental authorisations, in order to obtain any permission or licence a project developer should complete the following procedure:

  • submission of request of the environmental authorisation before the Ministry of Environment and Natural Resources;
  • inspection by government technicians;
  • issuance of the terms of reference, if applicable, which include the basis for the preparation of an environmental assessment;
  • preparation and filing of the correspondent environmental assessment; and
  • public hearings, for those projects with a high possibility of causing significant environmental impact. In these cases, and after such hearings take place, the public is entitled to present any comments and objections during a 15-day period.

Once these steps are completed, it is up to the Ministry of Environment and Natural Resources to issue or reject the corresponding authorisation, which will contain the compliance obligations to be followed by the developer.

Regulatory authorities

Regulatory authorities

Which authorities are responsible for the environment and what is the scope of each regulator’s authority?

The Ministry of Environmental and Natural Resources, as the governmental authority that regulates all matters related to the environment, is in charge of developing the policies regarding the environment, ecosystems and natural resources. It is the only institution capable of issuing environmental permits and imposing administrative penalties for infringements of the law (article 15, Law No. 64-00).

There are vice-ministries in the Ministry in charge of different environmental matters such as:

  • soil and water;
  • environmental management;
  • forestry resources;
  • protected areas and biodiversity; and
  • coastal and marine resources, among others.
Investigation

What are the typical steps in an investigation?

The Ministry of Environmental and Natural Resources audits, supervises and investigates the compliance with environmental regulations. The Ministry has the authority to audit, supervise and investigate any activity performed by an individual or company, which must, in turn, provide access and information to the environmental authority. The Ministry can also rule on the type of administrative liability, if any, that applies to each infringement of the law, subject to due process.

If a third party commits an offence or crime against the environment, the Attorney General for the Defence of the Environment and Natural Resources can pursue a criminal action and start the corresponding investigations in search of evidence.

Inspectors from the Ministry of Environment and Natural Resources are empowered to carry out periodic inspections and audits to ensure compliance with the environmental management programme established in the environmental authorisation, as well as all the environmental regulations.

This authority could also investigate any infringement or crimes related to the environmental legislation. Also, they are entitled to take actions such as projects closure or cancellation of activities to prevent an imminent damage to the environment as provided by the control regulations established by Resolution 18-2007 dated 15 August 2007.

Administrative decisions

What is the procedure for making administrative decisions?

Actions that have any administrative decision must respond to the principle of legality of the administration; they must be in accordance with legal regulations and jurisdictional decisions. In addition, individuals or entities have the faculty to pursue revision, modification or reversal of any decision. All these administrative decisions can be challenged through administrative and judicial appeals provided under Dominican legislation.

During the decision-making process, especially prior to the issuance of an environmental authorisation, the authority is entitled to request additional information to the parties involved to complete the file and have better criteria to make a final decision.

Moreover, according to Law No. 107-13, everyone has the right to be heard by the Administration, more so in the case of an unfavourable administrative decision against them.

Sanctions and remedies

What are the sanctions and remedies that may be imposed by the regulator for violations?

The Ministry of Environment and Natural Resources may impose several penalties through administrative action in the case of non-compliance.

Penalties can include:

  • closure or suspension of activities;
  • fines;
  • publication of penalty;
  • confiscation of equipment;
  • material; and
  • vehicles and products, among others.

The environmental authority can suspend or cancel an activity whenever there is evidence of non-compliance with the environmental legislation.

Appeal of regulators’ decisions

To what extent may decisions of the regulators be appealed, and to whom?

The principle of legality should always be considered in every decision made by the regulatory authority. Parties have the right to appeal against decisions taken by the regulators when provisions are arbitrary or abusive.

These remedies are called reconsideration or appeal instances when they are filed with the Ministry of the Environment and Natural Resources. The reconsideration is decided by the same authority that has granted the decision; the instance of appeal will be decided by the immediately superior entity. In order to start a court appeal, it is not mandatory to conclude the regulator’s instance. A decision may be appealed to an administrative court, and the decision of the latter may be also appealed to the Superior Administrative Court.

In addition, if the parties involved deem that the law was wrongfully applied, the final judgment can be appealed before the Supreme Court of Justice. Finally, if the parties claim that there has been a breach of the Constitution, they can appeal before the Constitutional Court.

Judicial proceedings

Judicial proceedings

Are environmental law proceedings in court civil, criminal or both?

Infringements of the Environmental Law and complementary regulations can result in criminal, civil and administrative penalties.

In civil and criminal cases, courts of first instance will have jurisdiction.

Administrative courts will have jurisdiction in the following cases:

  • liability of the state or government institutions, be it for their lack of adherence to or compliance with decisions made by the qualified judicial authorities, which decide controversies related to actions inherent in their functions;
  • administrative acts implemented by government institutions; and
  • judicial appeals of administrative acts derived from the Ministry of Environment and Natural Resources as the regulatory entity on these matters.
Powers of courts

What are the powers of courts in relation to infringements of environmental law?

Dominican courts are able to rule on environmental infringements to the extent that an offender would be held liable. Judges may impose compensation and restoration measures, imprisonment and fines.

Criminal infringements are established by the criminal courts and they can impose the corresponding penalties as established by the Environment Law and the Criminal Code of the Dominican Republic, for example:

  • imprisonment from six days to three years;
  • confiscation of tools, equipment, raw materials, machinery, vehicles and products obtained through illegal activities;
  • enforcement of the liquidated damages in favour of the harmed claimants;
  • enforcement of the destruction of the illegal facilities operating without the corresponding environmental authorisation; and
  • demanding the payment of a penalty ranging from the equivalent of one-quarter of the minimum wage to the equivalent of 10,000 times the minimum wage.

On the other hand, civil courts have jurisdiction to assess the damages and compensation measures attributable on the basis of the polluter-pays principle, in accordance with the provisions established by the environmental legislation and civil law.

Civil claims

Are civil claims allowed regarding infringements of environmental law?

Civil claims in the Dominican Republic regarding infringements of environmental law are allowed. Civil actions may be filed requiring the polluter to recover or compensate for the environmental damage caused to all parties affected by the polluting activity.

As for contractual violations, the defaulter could be condemned to pay for damage and injuries as a result of non-compliance or delays in contractual compliance.

Regarding non-contractual obligations, according to article 1382 of the Dominican Civil Code, the victim must be compensated by the injuring party. On environmental liability, objective liability prevails in every circumstance where the polluter-pays principle can be applied.

Defences and indemnities

What defences or indemnities are available?

In relation to the environmental civil liability, the provisions set forth in the Environmental Law are of public policy, meaning that agreements between the parties that limit liabilities would have no effect on third parties. Even when it might be possible to limit liability through an agreement between the parties, such provisions will only be valid between the parties.

On environmental matters, there would be joint liability between the polluter and the government officer who authorised the activity that caused damage to the environment. This joint liability also applies to all parties involved in causing damage to the environment.

Directors’ or officers’ defences

Are there specific defences in the case of directors’ or officers’ liability?

In accordance with our commercial laws, company representatives are deemed liable for fraudulent actions during their administration. The environmental regulations establish penalties for companies and their representatives when their decisions cause environmental damage.

Appeal process

What is the appeal process from trials?

All first instance judicial rulings are subject to an appeal. The appeal must be made within a month from receiving the notice of the ruling. A decision from the Court of Appeal may be subject to an appeal before the Supreme Court of Justice, merely on legal grounds. Finally, the ruling rendered by the Supreme Court of Justice can be challenged (only if there has been a violation of the Constitution) by an appeal to the Constitutional Court.

International treaties and institutions

International treaties

Is your country a contracting state to any international environmental treaties, or similar agreements?

The Dominican Republic, as a member of the international community, encourages and is bound by various conventions and declarations regarding environmental matters, namely:

  • CITES;
  • the International Convention for the Prevention of Pollution from Ships (MARPOL 73/78);
  • the Convention on the Conservation of Migratory Species of Wild Animals;
  • the Montreal Protocol on Substances that Deplete the Ozone Layer;
  • the Vienna Convention for the Protection of the Ozone Layer;
  • the Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal;
  • the Rio Declaration on Environment and Development;
  • the United Nations Framework Convention on Climate Change;
  • the Convention on Biological Diversity;
  • the United Nations Convention to Combat Desertification;
  • the Kyoto Protocol;
  • the Stockholm Convention on Persistent Organic Pollutants; and
  • the Dominican Republic-Central America Free Trade Agreement (DR-CAFTA).
International treaties and regulatory policy

To what extent is regulatory policy affected by these treaties?

When an international treaty is ratified by the Dominican Congress, the national legislation and related regulations in force must be amended according to the provisions of the incorporated treaty. There are cases when it has been necessary to adapt the national legislation in order to conform with international provisions. For example, the DR-CAFTA has required that some provisions be adapted and some regulations be enacted at the corresponding ministries to abide by said trade agreement.

Update and trends

Key developments of the past year

Are there any emerging trends or hot topics in environment law in your jurisdiction?

No updates at this time.