Environmental protectioni Air quality
Air quality standards in Brazil are regulated by CONAMA, by means of CONAMA Resolution No. 491/2018. Air quality standards are concentrations of atmospheric pollutants, which, if exceeded, could affect the health, safety and well-being of the population, as well as damage flora and fauna, materials and the environment in general. The Resolution does not specify the limits of air pollution to each activity individually, adopting general standards widely applied. Nevertheless, states are allowed and encouraged to enact their own regulations to impose standards on air emissions. According to Federal Law No. 9,605/1998, the act of causing atmospheric pollution at levels that result or may result in damage to human health, or that cause the death of animals or significant destruction of flora, may result in imprisonment from one to four years and a fine. If air pollution causes the reallocation, even momentary, of inhabitants of an affected area, penalty is imprisonment from one to five years and a fine.
In the scope of the administrative liability regime, Federal Decree No. 6,514/2008 provides that the act of causing atmospheric pollution is subject to a fine ranging from 5,000 to 50 million reais. The control of air emissions is provided as a technical requirement in environmental licensing. Therefore, if the level of emissions exceeds the standard established in the licence, the wrongdoer may be subject to administrative penalties for non-compliance with conditions established in the environmental licence, such as warnings, fines ranging from 500 to 10 million reais and an even embargo on the activity, depending on the seriousness of the infraction.ii Water quality
Federal Law No. 9,433/1997, which established the National Policy on Water Resources, establishes that the use of water resources is subject to the granting of the right of use, either for the extraction from a water body (even for human consumption), or for the discharge of effluents. The issuance of the right to use water resources is defined based on the dominance of the water resource used, being performed by federal or state entities. Federal water resources are lakes, rivers and any streams of water on land in their domain, or that span more than one state, serve as boundaries with other countries, or extend to or from foreign land, as well as marginal lands and river beaches. In these cases, the authority to issue the grant is ANA. The water quality is also disposed by CONAMA Resolutions Nos. 357/2005 and 430/2011, rules that provide the classification of water bodies and environmental guidelines for its framework, as well as establish conditions and standards for effluent discharge on water resources. According to the National Policy on Water Resources, the execution of hydraulic works and services, derivation or use of water resources of domain or administration of the Federal Union without the respective grant of the right to use water resources is considered an administrative violation. Such conduct entails the application of penalties, including warnings, fines ranging from 100 to 10,000 reais, in addition to temporary or definitive embargoes.iii Chemicals
According to IBAMA Normative Instruction No. 05/2012, maritime and interstate highway transport activity of dangerous products depends on the issuance of an environmental authorisation for the transport of dangerous products, issued by IBAMA. This means that maritime transportation and interstate transportation (by land and river) of dangerous products must be followed by this document.
In addition, individuals or entities that develop the activity within the boundaries of one unit of the Federation must follow the licensing or environmental authorisation rules for the transportation of dangerous products established by the respective state environmental agency. In other words, states are also entitled to impose their own regulations on the usage and transportation of chemical and dangerous products. Moreover, depending on the material or substance, the army or the police may also issue authorisations for the production, storage, handling, purchase, transportation and sale of dangerous products.
According to Federal Decree No. 6,514/2008, producing, processing, packaging, importing, exporting, marketing, supplying, transporting, storing or using a product or substance that is toxic, dangerous or harmful to human health or the environment, without complying with the requirements established by laws or regulations, can lead to fines ranging from 500 to 2 million reais.iv Solid and hazardous waste
The National Policy on Solid Waste, established by Federal Law 12,305/2010, aims to set principles, instruments, guidelines, goals and actions to enable the integrated management of waste, except radioactive waste, which is regulated by specific legislation. The concept of waste management follows the order of priority of non-generation, reduction, reuse, recycling, treatment and environmentally appropriate disposal. One who generates waste in its industrial process is therefore responsible for its segregation, storage, transportation and final disposal, and may be required to repair any kind of environmental damage therein related. By means of the concept of shared responsibility, instituted by the National Policy on Solid Waste, tasks and costs involved in the different stages of solid waste management are distributed throughout the production chain to the extent of liability of each of the parties involved. Therefore, although the liability for repairing damage to the environment in the civil sphere is joint and several, which means regardless of factual fault, management of waste also observes this distribution of burden among its product chain.
By means of the civil liability regime, hiring third parties to perform any of the phases of solid waste management, such as the environmentally appropriate final disposal, does not exempt the contractor from being held liable to repair or indemnify for environmental damage. The same imposes a reverse logistics system, which consists of an instrument characterised by a set of actions, procedures and means to enable the collection and restitution of solid waste to the business sector, for reuse, in their cycle or other productive cycles, or other environmentally appropriate disposal. The reverse logistics system applies to manufacturers, importers, distributors and traders of pesticides, batteries, tires, lubricating oils, packaging, lamps and electronic products. Therefore, these agents are obliged to structure and implement mechanisms to return the residues of these products after their use by consumers for reuse in the production process or other environmentally appropriate disposal. In the same vein, the Brazilian government enacted Federal Decree No. 9,177/2017, a rule that specifically enhances this already-existing compulsory reverse logistics system, in accordance with the National Policy on Solid Waste, and specific rules for key sectors, such as pharmaceuticals, are currently being discussed.
According to Federal Decree No. 6,514/2008, anyone who causes pollution by means of improper waste management may be subject to a fine of up to 50 million reais. In the criminal sphere, according to Federal Law No. 9,605/1998, one who causes pollution may be subject to imprisonment from one to four years. All of these penalties (both administrative and criminal) may be applied regardless of the obligation to repair any environmental damage in the civil sphere.v Contaminated land
Contamination of soil and groundwater triggers environmental liabilities and, as already highlighted above, any legal claim for reparation or indemnification of environmental damage is not subject to any statutes of limitation. Contaminated areas are classified as areas where there is evidence of pollution caused by disposal, accumulation, storage or infiltration of substances or residues, implying negative impacts on soil or groundwater. The detection of contamination requires actions by governmental agents, entities that caused contamination and previous or current owners. In this regard, corrective measures should be applied in order to establish levels of quality compatible with a certain future use (i.e., residential, commercial or industrial uses). At the federal level, CONAMA Resolution No. 420/2009 provides criteria and guiding values of soil quality for the presence of chemical substances and establishes guidelines for the management of contaminated areas as a result of human activities.
According to Brazilian environmental legislation, the owner and possessor of a contaminated site may, regardless of fault, be held liable and compelled to perform the remediation and recovery of the environment. In other words, environmental liability for contaminated areas follows the general rule in which one may be held liable regardless of fault (joint and several liability regime), besides being a propter rem obligation (attached to the property). Parties can contractually allocate such liability by means of private agreements, but contractual provision does not affect their liability in relation to public authorities on public civil actions. Nevertheless, private contracts can only direct the discussions on the right of redress among them.
As stated previously, causing pollution of any kind that results or may result in damage to human health by means of a contaminated area is considered an administrative violation punishable by fines of up to 50 million reais in the administrative sphere, notwithstanding the criminal liability in which individuals may be imprisoned from one to four years. All of these penalties (both administrative and criminal) may be applied regardless of the obligation to repair any environmental damage in the civil sphere.