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19 August 2013
Remediation of contaminated property
Liability for damage to natural resources
Products subject to special environmental requirements
Availability of landfills for disposal of waste
Regulations on extended producer responsibility
All environmental damage in Brazil is subject to a strict liability regime, meaning that no guilt need be proven against a polluter before the obligation to provide environmental recovery can be enforced. Furthermore, the polluter concept is broad, covering all those that contributed to the damage, even indirectly. Since the duty to provide environmental recovery represents a propter rem (or in some cases even an in rem) obligation, environmental civil liability relates to the simple ownership of polluted land and natural resources. In other words, the liability is based on the status of the contaminated resource, but not on the fault of the landowner. Therefore, the landowner may be deemed liable for repairing environmental damage that already existed at the time at which it acquired the land.
At federal level, the Brazilian Council for the Environment (CONAMA) Resolution 420/09 establishes a standard procedure that aims to ensure the identification, public disclosure and remediation of contaminated sites. The regulation sets out the criteria and guiding principles for checking soil quality for the presence of chemicals and establishes guidelines for the environmental management of areas contaminated by such substances as a result of human activity.
At state level, the Brazilian Institute for the Environment and Renewable Natural Resources issued Instruction 04/2011, which establishes the general directives for the preparation of a Recovery Plan for Damaged Areas, which is usually required by environmental agencies to manage and restore the environment after project installation. In addition, Sao Paulo State Law 13577/09 was passed in order to ensure that contaminated sites in the region are subject to adequate identification, public disclosure and remediation.
Furthermore, in relation to mining activities, the Constitution provides a specific obligation for polluters to restore the environment following the damage caused by mineral extraction.
Ownership of polluted land and natural resources is subject to environmental civil liability, representing a propter rem obligation. Therefore, a new landowner can be jointly liable for repairing environmental damages caused by a polluter at the time of acquisition. The enforcement for recovery of such damages can be performed by either the public prosecutor or the environmental agency, at judicial or administrative level and against both the polluter and landowner.
Regardless of such liability, new landowners may still have the right to recover expenses for such environmental recovery by filing a private lawsuit against the previous landowners (where the previous landowners caused the contamination).
Following international trends, several Brazilian states have prohibited the use of any material containing asbestos. Furthermore, at federal level, CONAMA Resolution 307/2002 sets forth that civil construction waste contaminated with asbestos is classified as hazardous waste and must be handled properly and sent for adequate disposal.
Brazilian legislation has also prohibited the production of polychlorinated biphenyls (PCBs) since 1981. Furthermore, Brazil has ratified the Stockholm Convention on Persistent Organic Pollutants, which is enforced through Federal Decree 5472/2005. Therefore, the production of PCBs is prohibited with no exceptions, while their use has been restricted to a few allowances foreseen in the convention. State environmental bodies may also set higher restraints for the use of PCBs and other persistent organic pollutants.
Federal Law 12,305/2010 sets forth the National Policy on Solid Waste, which regulates hazardous substances. Under the law, 'hazardous substances' include those defined as flammable, corrosive, reactive, toxic, pathogenic, carcinogenic, mutagenic or teratogenic, or representing a significant risk to public health or other environmental feature. Any activity that generates hazardous substances must include a plan for the management of solid waste, while its environmental permit will be granted only on proof of the economic capacity for supporting all risks and obligations arising from the proper management and disposal of such waste.
The availability of landfills for the disposal of waste has become one of the major environmental concerns for the Brazilian government, as at present most Brazilian states do not have enough landfills for the adequate treatment and disposal of generated waste.
Federal Law 12,305/2010, which established the National Policy on Solid Waste, also established a deadline for states and municipalities to prepare their own solid waste plans as a condition for receiving federal financial resources for introducing landfills in available areas.
Furthermore, as a strict liability regime applies to environmental damages, the policy also establishes the liability of generators, transporters and processors for the correct destination of solid waste. All companies hired for the transportation and disposal of solid waste are therefore strongly advised to ensure that their environmental permits are up to date and valid.
Considering the hazards that may result from the irregular disposal of waste, the state of Rio de Janeiro has launched an ambitious programme aiming to replace all irregular landfills with duly permitted sites over the next decade, through partnerships between the state government, municipalities and private entities.
Federal Law 12,305/2010 also sets forth the 'reversed logistics system', under which all manufacturers, retailers and distributors of pesticides, batteries, tyres, lubricating oil, fluorescent lamps and electronic devices and their components must accept the return of these products after consumption, regardless of the public waste collection service.
An earlier version of this update first appeared in Latin Lawyer.
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Maria Alice Doria