The Province of Buenos Aires Regulates Remediation of Contaminated Sites

On February 9, 2015, Resolution No. 95/2014 of the Provincial Agency for Sustainable Development (“OPDS”, after its acronym in Spanish) was published in the Official Gazette of the Province of Buenos Aires (the “Resolution”). This Resolution implements Law No. 14,343 (on identification and remediation of environmental liabilities and contaminated sites) and regulates the remediation of contaminated sites within the Province of Buenos Aires.  It will enter into force on March 11, 2015.

According to the Resolution and Law No. 14,343, the party responsible for the contamination of a site will be: (i) the person that conducts (or conducted) the activity that caused said contamination or (ii) in case said person cannot be found, the owner of the contaminated site, (the “Party Responsible for Contamination”).

The Resolution provides that upon the detection of any indication that the waters and/or the soil have been affected by any substance that alters their natural condition, the Party Responsible for Contamination must perform an assessment to determine: a) the contaminating substances, b) the magnitude of the contamination in terms of contaminant concentration, and c) the extension of the contaminated soil and/or waters.

Pursuant to the Resolution, a site will be deemed contaminated when the existence of a Non Aqueous Liquid Phase (or “FLNA” after its acronym in Spanish) is determined or when chemical substances dissolved in underground or surface waters or the soil are detected, whose concentration exceeds certain maximum levels, established in Annex II of Decree No. 831/1993, which regulates Federal Law No. 24,051 on Hazardous Waste.

The Resolution clarifies that for those chemical substances or complex mixes not contemplated by Decree No. 831/1993, the intervention values of the tables of Annex 1 of the Dutch Law will be taken into account. If a contaminating substance is not regulated by the Dutch Law, or the resource to be evaluated is not mentioned in it, the OPDS is authorized to apply any other local or international regulation.

If contamination is determined, the Party Responsible for Contamination must submit to the OPDS within a 90-calendar-day term as of the completion of the site characterization assessment a remediation plan (“Remediation Plan”) to achieve the following goals:

a) If FLNA is detected, the Remediation Plan must pursue the total elimination of the FLNA.

b) If contaminating substances in waters or soil are detected, the Remediation Plan must check that the maximum concentration levels set forth by Decree 831/1993 or the Dutch Regulation, as the case may be, are not exceeded. For underground waters, in areas where the phreatic aquifers are not used for human consumption, the applicable levels will be those corresponding to water sources for human consumption with conventional treatment, multiplied by 10. These levels will be applied in places where a drinking water network is available, where it is assured that the first aquifer is not used for human consumption and provided that no other risks exist.

If evidence is provided that there are no adequate technologies available and/or there is a limitation (e.g. physicochemical, hydrological or others) to reach said objectives and it is demonstrated through a Risk Assessment[1] that there are risks for neither human health the environment, the OPDS may exceptionally excuse remediation of a contaminated site, provided that a monitoring plan is implemented to survey contamination over time.

Remediation Plans must be approved by the OPDS. This agency will authorize the beginning of the remediation works and will indicate the technology/ies to be applied, the timeframes and the monitoring procedures to be carried out among other conditions.

If the conditions established by the OPDS are fulfilled but the objectives of the Remediation Plan are not reached, the Party Responsible for Contamination must request an extension or a new authorization if a different technology is chosen. If the objectives are not reached and the unavailability of technology or another limitation is demonstrated, the OPDS may consider using a study of Corrective Actions Based on Risk.

The OPDS will approve the completion of Remediation Plans and will determine a post-remediation monitoring for a period between 2 and 5 years, depending on whether the remediation objectives were reached or not. In all cases, the OPDS is authorized to require the performance of new remediation works in sites that had been already remediated.

Breaches of the Resolution will be punished with the sanctions set forth in Law No. 14,343.[2]

[1] In accordance with IRAM rule No. 29,590.

[2] Sanctions are: a) warning; b) fines up to 1,000 minimum salaries of the provincial public administration; c) partial or total, temporary or definitive closure of the facility; d) cancellation of registrations existing in OPDS.