In this first installment, a general problem is addressed for industrial establishments, referring to their Authorization in Matters of Environmental Impact.
As provided for in article 28 of the General Law of Ecological Balance and Environmental Protection, there is a list of establishments, which, prior to carrying out any phase of their activity, must obtain this Authorization.
Likewise, for those establishments that are not within the aforementioned list, there are specific regulations, either at the State Level, or even Municipal, which generate an analogous obligation.
Thus, it could be said that, for an industrial establishment, the need to obtain the Authorization in Matters of Environmental Impact, whatever the Competent Jurisdiction for its issuance, is the general rule, and its lack of need, the exception to the rule, and as such, of necessary strict interpretation for each specific case.
This Authorization, as already mentioned, is required prior to the completion of any of the phases of the project to be carried out, and will therefore include:
- (i) Site preparation
- (ii) Construction
- (iii) Operation and maintenance and
- (iv) Abandonment of the site.
This circumstance brings about practical problems related to who will be responsible for obtaining said Authorization. As an example, it is not foreign to the industrial sector that a construction company carries out the survey of the project, which will be delivered to an administrator, who will be in charge of renting it to the end user, who will pay rent to the true owner of the property.
In situations such as the hypothetical one, a de facto demarcation of responsibilities is generated, in which:
- (a) The construction company considers that it is not obliged to process the referenced Authorization, because it is not the one who will benefit from the establishment afterwards;
- (b) The administrator of the site, by not having any physical connection with the establishment, tends to understand himself as alien to this obligation;
- (c) The tenant of the site, by not having, at the time of the beginning of the first two phases, any connection with the establishment where his activity will later be based, has no way of
- obtaining Authorizations in advance as indicated by the legislation;
- (d) The owner of the establishment, by feeling remote from it, entrusting an administrator with the leasing of the property, will pretend that those who really inhabit the site will be in charge of having the corresponding Authorizations.
The reality within this hypothetical, is that this evasion of each of the main characters generates a cascade of non-compliances; and, today, by application of article 24 of the Federal Law of Environmental Responsibility, all of them will be equally responsible, by application of the Principle of Responsibility.
When the lack of Authorization is realized, fears of truly harmful consequences for those involved will arise, which in their escalated magnitude may translate into administrative sanctions, fines, suspensions, and given the circumstances, prison sentences.
This situation is completely reversible, if at the time of planning the execution of a project, the negotiating body receives adequate advice, and the participating lawyers are in charge; firstly, of clarifying in the contracts who will be responsible for obtaining this Authorization for each of the phases; and, secondly, of ensuring compliance with said clauses.
A small detail, of care in the negotiation, can prevent truly harmful environmental consequences, and ensure the freedom of enterprise, by not making the participating agents incur in uncomfortable responsibilities.
Leandro M. Lamas Stalla
Deputy Project Director
CIS Consultores
