Environmental Law. Resolution No. 95/14
Remediation of contaminated sites located within the territory of the Province of Buenos Aires. Resolution No. 95/14.
By Angeles Murgier.
Resolution No. 95/14 of the Executive Office of the Provincial Sustainable Development Agency (Organismo Provincial para el Desarrollo Sustentable or OPDS) was published in the Official Bulletin on February 9, 2014. Such resolution governs the remediation of contaminated sites located within the territory of the Province of Buenos Aires (hereinafter, the “Resolution”).
Below follows a summary of the main issues regulated by the Resolution.
(a) Persons liable for the contamination. The Resolution provides that “…the persons engaged in the activity that caused such contamination or the owners of the real property if the persons engaged in the contaminating activity may not be found, as provided by Section 5 of Law No. 14,343, shall be liable.”
(b) Contaminated site: The Resolution stipulates that a contaminated site shall exist when:
(i) Non-Aqueous Phase Liquids (NAPLs) are present.
(ii) As a consequence of the contamination of the groundwater, there are chemical substances dissolved at levels higher than the reference values set forth in Decree No. 831/93, regulating National Law No. 24,051 (Exhibit II, Chart 1: Water quality reference values for human drinking water sources with conventional treatment).
(iii) As a result of the contamination of the surface water, there are chemical substances dissolved at levels higher than the reference values set forth in Decree No. 831/93, regulating National Law No. 24,051 (Exhibit II, Chart 2: Water quality reference values for the protection of aquatic life. Surface fresh water; Exhibit II, Chart 3: Water quality reference values for the protection of aquatic life. Surface salt water; Exhibit II, Chart 4: Water quality reference values for the protection of aquatic life. Surface brackish water, as the case may be).
(iv) As a consequence of the contamination of soils according to their different uses, there are chemical substances at levels higher than the reference values set forth in Decree No. 831/93, regulating National Law No. 24,051 (Exhibit II, Chart 9: Soil quality reference values).
The Resolution sets forth that, for chemical substances or complex mixtures that are not regulated by Decree No. 831/93, the intervention values included in the charts of Annex 1 to the Dutch Standard (Circular 2009, or any other that may replace or supplement it in the future) shall be taken into account. In such cases where a contaminating substance is not regulated by the Dutch Standard, or the resource to be evaluated is not comprised therein, the OPDS may consider the use of another local or international standard.
(ii) Obligation to characterize the site. The Resolution provides that “upon detecting any sign that may lead to assume that the water resource and/or the soil are contaminated by any substance (physical or chemical agents) that may alter their natural condition, the person liable for the contamination shall characterize it… ” Such characterization shall be made following the technical guidelines governing minimum contents for the performance of a characterization study of contaminated sites contained in Exhibit I to the Resolution.
The Resolution clarifies that the characterization of the site shall be aimed at determining: a) the pollutants, b) the magnitude of the contamination in terms of contaminant concentrations, and c) the surface area of the contaminated soil and/or water resource and that such study shall be performed by a company registered with the OPDS and/or by a professional having expertise in the matter and duly registered pursuant to SPA Resolution No. 195/96.
(iii) Obligation to submit a remediation plan. The Resolution stipulates that, in cases where there is a contaminated site, the person liable for the contamination shall file a remediation plan within ninety calendar days following the completion of the characterization of the site. The Resolution further provides that within duly justified terms, when it is not possible to meet the established ninety-day term, an extension of such term may be exceptionally requested, which request shall be evaluated by the OPDS.
(iv) Obligation to notify the presence of NAPLs. The Resolution provides that if during the characterization works the presence of NAPLs is detected, the person liable for the contamination shall give notice to the OPDS of the existence thereof within forty-eight hours following its detection and implement, in case of imminent risk, a prompt containment plan.
(v) Remediation Plan. The Resolution outlines the guidelines to be followed for the preparation of the remediation plans (section 8 and Exhibit III), establishing remediation goals, accepting the filing of a risk analysis under the IRAM 29.590 standard in specific cases and stipulating general and technical guidelines for the contents of the remediation plans.
(vi) Registered remediation companies. The Resolution provides that the remediation plans shall be executed by a remediation company with the selected technology duly registered with the Provincial Registry of Technologies kept by the OPDS.
The published wording of the Resolution does not contemplate the execution of the remediation plans by the person liable for the contamination. This situation was expressly contemplated in previous versions of the Resolution, which provided that the remediation tasks on the pollutant’s own site should be endorsed by a professional and/or environmental consulting firm with experience in remediation tasks (and registered in the manner provided in SPA Resolution No. 195/96).
(vii) Obligation to report completion of the remediation works. The Resolution provides that once the remediation goals have been attained (according to the provisions of the pertinent administrative resolution), the person liable for the contamination shall inform the OPDS about such situation and request that remediation tasks on the site be regarded as completed. It also establishes that “if the documents concerning the remediation tasks performed are favorably reviewed, following any pertinent verifications, the completion of remediation tasks shall be approved by means of an administrative resolution.”
(viii) Post-remediation monitoring. The Resolution sets forth that the administrative resolution approving the completion of the remediation tasks shall establish that post-remediation monitoring be carried out on the site, according to some illustrative schedules (from 24 months to 5 years) and monitoring frequencies. Lastly, it provides that if the monitoring results make it advisable, the OPDS may request the performance of new remediation tasks on the remediated sites.
(ix) Penalties. The Resolution provides that the applicable penalties shall be those established in Law No. 13,343 and the procedure mentioned in Resolution No. 659/03 of the Ministry of Agrarian Affairs and Production of the Province of Buenos Aires.
(x) Effective date. Lastly, please be advised that the Resolution will become effective on March 9, 2015.