Environmental law and practice in Argentina: overview

A Q&A guide to environment law in Argentina. This Q&A provides a high level overview of environment law in Argentina and looks at key practical issues including emissions to air and water, environmental impact assessments, waste, contaminated land, and environmental issues in transactions. In addition, answers to questions can be compared across a number of jurisdictions to assist in the management of cross-border transactions (see Country Q&A Tool).

This Q&A is part of the Practical Law multi-jurisdictional guide to environment. For a full list of jurisdictional Q&As visit www.practicallaw.com/environment-mjg.

Federico S Deyá, Marval, O'Farrell & Mairal
Contents

Environmental regulatory framework

1. What are the key pieces of environmental legislation and the regulatory authorities in your jurisdiction?

Argentina is a federal country. The Federal Constitution, as amended in 1994, provides general principles for the protection of the environment, and empowers the Federal Government to determine the minimum standards for protection. The provinces may issue their own specific regulations, reflecting the minimum standards determined at federal level.

At federal level a set of laws provide these minimum standards:

  • Law on Industrial and Service Activities Waste Management (Law 25,612).

  • Law on National Environmental Policy (Law 25,675).

  • Law on Polychlorinated Biphenyls – Standards for Management and Elimination (Law 25,670).

  • Law on the use of Public Waters (Law 25,688).

  • Law on access to environmental information (Law 25,831).

  • Law on Residential Waste (Law 25,916).

  • Law on Environmental Protection of Native Forests (Law 26,331).

  • Law on Minimum Standards for the Control of Burn-Off Activities (Law 26,562).

  • Law on the Protection of Glaciers (Law 26,639).

Some activities regulated by federal authorities (for example, energy, oil and gas) are also subject to specific regulations for the protection of the environment and natural resources.

The provinces can issue their own regulations to protect the environment. In general, provincial regulations follow the federal regime, but in some cases the standards of protection have been raised.

The federal authority is the Secretary of Environment and Sustainable Development (Federal Secretary), which is part of the executive branch of the Federal Government. The provinces have their own authorities, which, along with the Federal Secretary, compose the Environmental Federal Council (Consejo Federal de Medio Ambiente) (COFEMA) created under the National Environmental Policy (NEP).

 

Regulatory enforcement

2. To what extent are environmental requirements enforced by regulators in your jurisdiction?

The tendency in recent years has been for the enforcement authorities to increase their control over activities capable of producing environmental damage.

In certain regions with high population levels and industrial concentration, specific regulators have been created to control contamination and remediate affected resources (such as soil or water) (for example, the Autoridad de Cuenca Matanza Riachuelo (ACUMAR) in the Matanza Riachuelo Basin).

In general, enforcement of environmental regulations became an issue on the industrial agenda in the last ten years.

 

Environmental NGOs

3. To what extent are environmental non-governmental organisations (NGOs) and other pressure groups active in your jurisdiction?

The Federal Constitution provides that NGOs have standing to act for the protection of the environment. Participation of NGOs in judicial cases and on-site campaigns for the protection of natural resources is increasing.

 

Environmental permits

4. Is there an integrated permitting regime or are there separate environmental regimes for different types of emissions? Can companies apply for a single environmental permit for all activities on a site or do they have to apply for separate permits?

Integrated/separate permitting regime

There is no integrated permitting regime. Separate permits are required for different types of emissions.

Single/separate permits

Generally, permits are applied for separately. There are a number of permits that all industries must obtain before they can operate, including permits for the:

  • Operation of environmentally sensitive facilities.

  • Use of water from public sources.

  • Discharge of liquid effluents.

  • Discharge of gaseous emissions.

  • Installation and operation of fuel tanks.

  • Use of high-pressure equipment.

 
5. What is the framework for the integrated permitting regime?

Permits and regulator

There is no integrated permitting regime.

 

Water pollution

6. What is the regulatory regime for water pollution (whether part of an integrated regime or separate)?

Permits and regulator

At federal level water pollution is governed by the Hazardous Waste Law (Law 24,051). Federal regulations are enforceable for activities carried out within federal jurisdiction or in the event of inter-jurisdictional activities or impact (for example, discharges to inter-jurisdictional water sources).

Provincial regulations differ between provinces. In the province of Buenos Aires, where at least 80% of industrial activity takes place, a Water Code applies which provides:

  • Permitting regulations (concessions).

  • Guidance levels applicable to the quality of discharges depending on the affected resource (subsurface waters, rivers, lakes, and so on).

Prohibited activities

All discharges that do not comply with the quality standards determined by the authority can be suspended, regardless of the generator's civil or criminal liability for the damage caused to the environment or individuals in general.

Clean-up/compensation

According to the Federal Constitution, in the case of contamination or damages to the environment, the primary obligation of the polluter is to mitigate and remediate. In the event that remediation may not be possible, then a compensation fund may be integrated.

Penalties

Administrative penalties normally include fines and closure of facilities or installations. Civil and criminal liability may apply independently of administrative liability. For example under Law 24,051 administrative fines of up to ARS500,000 can be ordered. In the event of the death of an individual due to water pollution, polluters are liable to imprisonment of between ten and 25 years.

 

Air pollution

7. What is the regulatory regime for air pollution (whether part of an integrated regime or separate)?

Permits and regulator

Air quality is regulated at a provincial level. However, not all provinces have emission standards in force. Generally, emissions must be reported to the enforcement authority on a yearly basis, including the testing of air quality obtained on site.

Prohibited activities

Depending on the province the emissions must or may not be authorised by the regulator. In the provinces that have emission standards, the enforcement authority is normally empowered to close down emissions-producing facilities if emissions exceeding the maximum levels are detected.

Clean-up/compensation

Under general provisions of the Federal Constitution, the primary obligation of the polluter in cases of contamination is to mitigate the damage and remediate. However, there are no specific provisions governing air pollution.

Penalties

Provincial regulations generally empower the enforcement authority to apply fines, and to close down emissions-producing facilities. For example, in the province of Buenos Aires, fines ranging from ARS344 to ARS344,000 and/or the partial or complete closure of facilities can be ordered.

 

Climate change, renewable energy and energy efficiency

8. Are there any national targets for reducing greenhouse gas emissions, increasing the use of renewable energy (such as wind power) and/or increasing energy efficiency (for example in buildings and appliances)?

The National Renewable Energies Incentive Regime (in place since 2007) aims to have 8% of all electricity consumed in Argentina generated by the following renewable sources by the year 2016:

  • Wind.

  • Solar.

  • Geothermal.

  • Tidal.

  • Small hydro (up to 30MW of capacity).

  • Biomass.

This target is a policy goal and does not impose legally binding consequences for failing to reach it.

In relation to energy efficiency, the Federal Government has approved a Plan for Rational and Efficient Energy Use (PRONUREE). The PRONUREE sets out the following measures:

  • Implementation of energy efficiency programmes for public administration.

  • Execution of agreements with business, banking, commercial and industrial chambers to extend any energy efficiency measures proposed for Argentine public administration to the private sector.

  • Implementation of energy efficiency standards for production, importation and trading of energy-consuming equipment.

  • Adoption of energy efficiency labelling to identify machinery and appliances according to relevant technical indicators.

  • Modernisation of street lighting systems.

  • Adoption of a maximum index of consumption of electric and thermal energy for new housing.

  • Development of an incentive system to reduce energy use, including preferential financing for measures regarding the reduction of consumption in existing housing.

  • Promotion of the Clean Development Mechanism (CDM) within public and private agencies for the identification, development and implementation of new projects in the field of energy efficiency in order to take advantage of this source of financing and international co-operation.

 
9. Is your jurisdiction party to the United Nations Framework Convention on Climate Change (UNFCCC) and/or the Kyoto Protocol? How have the requirements under those international agreements been implemented?

Parties to UNFCCC/Kyoto Protocol

Argentina is party to the UNFCCC and the Kyoto Protocol (internally ratified by Federal Law 25,438). However, as a non-Annex I member, Argentina is not bound to comply with specific reduction levels of greenhouse gas (GHG) emissions.

Implementation

Despite Argentina not having mandatory reduction levels of GHG emissions, under the CDM about 20 projects have been approved by the national authority.

 
10. What, if any, emissions/carbon trading schemes operate in your jurisdiction?

The Certified Emission Reductions (CERs) obtained locally are based on the CDM programme. In general, they are traded internationally.

 

Environmental impact assessments

11. Are there any requirements to carry out environmental impact assessments (EIAs) for certain types of projects?

Scope

Some provinces have their own regulations on EIAs, which provide minimum requirements. Additionally, certain regulations applicable to specific regulated activities provide rules on the EIA process.

Permits and regulator

In general, an Environmental Impact Declaration (EID) must be issued before the beginning of any project or activity that may have a negative impact on the environment. The regulatory authority may not authorise the commencement of works or activities that do not have an EID.

Penalties

The beginning of works or activities without an EID may be sanctioned with fines, closure and even the demolition or dismantling of the works performed without authorisation. In the province of Buenos Aires, penalties for works or activities started without a corresponding EID include:

  • Suspension of the works or activities.

  • Fines ranging from ARS1,000 to ARS1,000,000.

 

Waste

12. What is the regulatory regime for waste?

Permits and regulator

At a federal level there are specific regulations applicable to hazardous waste (Law 24,051), industrial waste (Law 25,612) and residential waste (Law 25,916). Provinces usually have specific rules for the management of hazardous, pathogenic and household waste. Usually, for the generation of hazardous and pathogenic waste, authorisation from the enforcement authority is required, as well as control of its management until final disposal.

Prohibited activities

Lack of authorisation for the generation of hazardous or pathogenic waste is usually an infringement of the applicable local regulations.

Operator criteria

The hazardous waste operators must register with the enforcement authority and keep record of the waste treated and sent to final disposal.

Special rules for certain waste

Depending on the province, there may be specific regulations for hazardous waste as well as industrial, household and pathogenic waste. In addition, regulations on electronic waste (waste electrical and electronic equipment) (WEEE) are beginning to appear (for example in the province of Buenos Aires), and at federal level there are several bills on WEEE under consideration.

Penalties

In general, the sanctions are fines or closure of the facilities. In addition, if the inappropriate management of hazardous waste may have caused damage to third parties or the environment, the perpetrator could be civilly and criminally liable. For example under Law 24,051, administrative fines of up to ARS500,000 can be ordered. In the event of the death of an individual due to water pollution, polluters are liable to imprisonment of between ten and 25 years.

 

Asbestos

13. What is the regulatory regime for asbestos in buildings?

Prohibited activities

The first limitations on the use of asbestos in Argentina began in 1979 with the enactment of the implementing Decree of Law 19,587 on Industrial Hygiene and Safety. More than twenty years later Resolutions No.845/00 and No.823/01 of the Federal Ministry of Health finally prohibited the use of asbestos.

Waste containing asbestos is considered hazardous waste, and so the provisions of Law 24,051, relating to hazardous waste in general, apply.

Main obligations

The demolition or repair of structures or buildings containing asbestos can only be performed in compliance with the relevant regulations.

Permits and regulator

The control of the presence of asbestos is under the area of the Ministry of Health. However, labour obligations also contain specific provisions relating to air pollution, quality of workplace, and so on.

Penalties

There are no specific environmental sanctions on the improper use or handling of asbestos.

 

Contaminated land

14. What is the regulatory regime for contaminated land?

Regulator and legislation

There is no specific regulatory regime for contaminated land at the federal level. However, the NEP provides that any person that causes damage to the environment must remediate the damage. Rules from Law 24,051 are usually applied to determine the level of acceptable land contamination, depending on its specific use (farming, industrial or household).

At provincial level:

  • In the province of Buenos Aires, a new law was enacted at the beginning of 2012, Law on Environmental Liabilities of the Province of Buenos Aires (Law 14,343), which sets out a specific regime for the treatment of contaminated sites.

  • In provinces with hydrocarbon production (for example, Neuquen), there are usually specific regulations on land quality control according to the kind of activities performed.

  • For activities performed in the Southern Metropolitan area (which are subject to ACUMAR), there are specific provisions on contamination control and an obligation to report environmental liabilities.

Investigation and clean-up

If, as a consequence of an inspection or a charge brought by a third party, the existence of a contaminated site is verified, the regulator or judiciary may require its remediation. In areas subject to ACUMAR's control there is an obligation to report any event that may result in environmental liabilities.

In the province of Buenos Aires there are similar rules contained in the new Law 14,343. However, the implementing decree has not yet been granted, so effective application is pending. Nevertheless, there is also an obligation to immediately communicate deviations in the emissions standards to the authority, under the gaseous emissions regulations, in order to mitigate damage to neighbours.

Penalties

In general, sanctions of fines and closure are applied, regardless of the civil or criminal liability of the polluter. Where the provisions of Law 24,051 apply:

  • Fines of up to ARS500,000 can be imposed.

  • Closure of facilities for up to one year can be ordered.

 
15. Who is liable for the clean-up of contaminated land? Can this be excluded?

Liable party

Under the federal regime, any person who causes damage to the environment must remediate it. This obligation cannot be waived, and the polluter cannot be released from third party liability under limitation of liability clauses between parties (for example, owner and occupier).

Environmental insurance (mandatory for some activities) may cover patrimonial liability arising from the cost of remediation.

Owner/occupier liability

In principle, the generator of the damage is liable for the clean-up. However, if the generator of the damage and the owner of the land are not the same person, the owner of the land may be held responsible for the remediation if the generator is not found (Law 14,343).

Previous owner/occupier liability

If an environmental liability is proved to be caused by the previous owner, the previous owner must remediate it.

Limitation of liability

Limitations of liability clauses do not usually have effect as against third parties. Environmental matters are not an exception to this rule.

 
16. Can a lender incur liability for contaminated land and is it common for a lender to incur liability? What steps do lenders commonly take to minimise liability?

Lender liability

If there is evidence that the lender is not the perpetrator of the damage, then the lender is released from remediation or compensation obligations.

Minimising liability

If the agreements that limit liability for environmental damage usually have no effect as against third parties, and it is proved that the lender is the perpetrator of the damage, the lender is responsible for the total cost of the remediation, regardless of the civil or criminal liability that may correspond.

 
17. Can an individual bring legal action against a polluter, owner or occupier?

Any person affected by environmental damage (for example, contamination of land by a neighbouring industry) has legal standing to claim remediation of their own property and, in addition, the remediation of the entire environment affected.

 

Environmental liability and asset/share transfers

18. In what circumstances can a buyer inherit pre-acquisition environmental liability in an asset sale/the sale of a company (share sale)?

Asset sale

In the event that the buyer cannot demonstrate that the environmental liability was caused by the prior owner/holder, the buyer must respond to third parties and is responsible for remediation activities.

Share sale

The formal continuation of the legal entity makes the new owner responsible for all environmental liabilities (past, present and future). If the responsibility of the prior owner is verified, then reimbursement actions may take place under the share sale provisions and its limitations on liability.

 
19. In what circumstances can a seller retain environmental liability after an asset sale/a share sale?

Asset sale

Even if there has been a transfer of assets, the previous owner may be liable if his participation or generation of environmental contamination can be proved.

Share sale

Provided the share sale does not imply a change of legal entity, the company remains liable to third parties for damage it may have caused, regardless of the right to claim the refund from the seller under indemnities agreed at the time of the share sale.

 
20. Does a seller have to disclose environmental information to the buyer in an asset sale/a share sale?

Asset sale

A seller must provide information on the environmental status of the assets to be sold under the general rules on hidden liabilities.

Share sale

A seller must provide information on the environmental status of the assets belonging to the company whose shares are being transferred under the general rules on hidden liabilities.

 
21. Is environmental due diligence common in an asset sale/a share sale?

Scope

Due diligence is usually carried out in asset or share sales. From a legal perspective, the analysis focuses on the permits required and formal compliance with applicable environmental regulations.

Types of assessment

Due diligence analysis must legally only verify the level of formal compliance with the applicable environmental regulations. However, on-site audits and inspections to examine the conditions of the facilities are typically also conducted by environmental consultants.

Environmental consultants

In important asset or share transfer transactions, legal compliance due diligence takes place and environmental auditing consultants get involved on-site to examine the assets' condition.

 
22. Are environmental warranties and indemnities usually given and what issues do they usually cover in an asset sale/a share sale?

Asset sale

Warranties and indemnities are generally given. Usually, they cover the seller's compliance with the applicable laws and regulations regarding the transferred assets.

Share sale

Warranties and indemnities are generally given. Usually, they cover the target company's compliance with the applicable laws and regulations.

 
23. Are there usually limits on environmental warranties and indemnities?

Environmental warranties and indemnities are usually subject to the general limits provided in the specific agreement. However, it is also common to find that environmental warranties and indemnities are broader than other types of warranties agreed by the parties. Time limits are usually considered together with the other warranties given by the seller.

 

Reporting and auditing

24. Do regulators keep public registers of environmental information? What is the procedure for a third party to search those registers?

Public registers

Generally, information related to projects, activities and environmental impacts, including environmental incidents, is not accessible to the public. There are some specific registries (for example, the Federal registry of environmental incidents of the hydrocarbon industry), but it can only be accessed by the parties/members.

Third party procedures

If information on the environmental impact of certain activities or projects is required by any person or entity with a legitimate interest, the owner (or the authority) is generally required to disclose this (Law 25,831 on access to environmental information).

 
25. Do companies have to carry out environmental auditing? Do companies have to report information to the regulators and the public about environmental performance?

Environmental auditing

In general, the renewal of some environmental permits requires updating of the initial EIA for the activity (for example, the renewal of the industrial location permit in some provinces), which means that there must be an environmental audit of the project.

Reporting requirements

The content of the environmental audit that must be conducted to obtain some environmental permits is provided by local regulations. In the province of Buenos Aires, an updated report on the initial EIA must be filed with the authority every two years to renew the facility's environmental licence (Law 11,459).

 
26. Do companies have to report information to the regulators and the public about environmental incidents (such as water pollution and soil contamination)?

Only some provinces have specific regulations that require environmental incidents to be reported. However, there are general rules that may require an environmental incident to be reported promptly to neighbours that may be affected.

 
27. What access powers do environmental regulators have to access a company?

The enforcement authority has powers to enter sites and request documentation. In some provinces the administrative enforcement authority also has the power to break into sites and seize documentation. The judicial authority usually acts in support of some of these interventions of the administrative authority.

 

Environmental insurance

28. What types of insurance cover are available for environmental damage or liability and what risks are usually covered? How easy is it to obtain environmental insurance and is it common in practice?

Types of insurance and risk

Under the NEP, all projects or activities capable of producing environmental damage must have environmental insurance. The only products that have been approved at present by the Superintendency of Insurance are surety bonds (a type of guarantee in which the Federal Government is the beneficiary).

Obtaining insurance

Environmental insurance, in the terms approved by the Superintendency of Insurance, is currently offered by a very limited number of insurance companies. To acquire environmental insurance and determine the coverage and price of the policy, it is necessary to analyse the level of environmental risk of the activity through a polynomic formula that includes a varied set of parameters related to the location, number of employees, type of activity, risks, and so on.

Under recently enforced provisions an assessment of the initial environmental situation of the location under coverage must be produced and reported to the environmental authority (Decree 1638/12).

 

Environmental tax

29. What are the main environmental taxes in your jurisdiction?

Environmental taxation is not common in Argentina. Administrative fees must be paid to obtain or renew environmental permits. For hazardous waste, most of the provinces have an environmental tax applicable over the volume of waste generated yearly.

Tax liability

The generator of hazardous waste is liable for the tax.

Tax rates

The hazardous waste tax is determined by the type of waste generated, and the volume. At federal level, a specific rule provides that in no case must the tax payable as a consequence of the activity that generates the waste exceed an amount equal to 1% of the company's turnover.

 

Reform

30. What proposals are there for significant reform (changes) of environmental law in your jurisdiction?

At federal level a set of new general rulings are expected to enter into force over the next several months. Rules on WEEE disposal and post-consumption liability are being discussed in Congress. In the province of Buenos Aires, where most industries are located, implementing regulations for the WEEE Law and the Contaminated Sites Law are expected to be passed in late 2012. In Patagonia, where most of the hydrocarbon activity takes place specific rulings applicable to non-conventional exploration techniques (shale gas and shale oil, tight gas sands, and so on) are expected to come into force, with particular emphasis on the sustainable use of water resources.

 

The regulatory authorities

Secretaría de Ambiente y Desarrollo Sustentable de la Nación

Main Activities. Federal environmental agency.

W www.ambiente.gob.ar

Organismo Provincial para el Desarrollo Sostenible

Main activities. Environmental agency of the province of Buenos Aires, where most of the industrial activity occurs.

W www.opds.gba.gov.ar

Autoridad de Cuenca Matanza Riachuelo

Main activities. Environmental Agency of the Matanza Riachuelo Basin (southern zone of the metropolitan area).

W www.acumar.gob.ar



Online resources

W www.infoleg.gov.ar

Description. Official website of federal legislation, in Spanish only.

W www.gob.gba.gov.ar/dijl/index.php

Description. Official website of the province of Buenos Aires regulations, in Spanish only.

W www.acumar.gob.ar/informacionPublica_normativa.php

Description. Official website of the regulations applicable within the Matanza Riachuelo Basin, in Spanish only.

W www.normasambientales.com

Description. Unofficial website containing federal and provincial environmental regulations, in Spanish only.


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