Fines for violation to liquid effluent overturn in the Province of Buenos Aires

Resolution No 444/08[1] (“Resolution 444”) of the Water Authority of the Province of Buenos Aires (“ADA” - “Autoridad del Agua”) modified certain aspects of Resolution No 162/07[2] (“Resolution 162”) issued by the same Entity.

Resolution 162 had established a mechanism based on objective criteria for the graduation of the fines imposed in case of infringements to Provincial Law 5,965, the Reglamentary Decrees No 2,009/60 and No 3,970/90 and other complementary normative related to liquid effluent overturn..

Pursuant to this Resolution, the value of a fine in pesos (AR$) was determined on the grounds of three parameters:

(i)         a fixed base (“BF” - “base fija” );

(ii)         an indicator of the overturn quality (“IC” - “indicador de calidad”); and

(iii)         an indicator of the infringement to Provincial Law No 5,965 and its Reglamentary Decrees (“IT” - “indicador de infracción”). The result of this equation should be multiplied by a fourth parameter, named “recidivism factor” (“RF” - “factor de reincidencia”).

The BF was defined by Resolution 162 as the value in pesos (AR$) that takes into account the expenses incurred by the ADA during the sanctioning proceeding in case of breach. For estimation purposes, reference was made to Resolution No 407/1993 issued by Administraación General de Obras Sanitarias de Buenos Aires (AGOSBA) (the former Water Authority), which established a minimum amount of AR$344 for the estimation of the fines imposed in cases of infringement to the liquid effluent overturn regulation.

The IC is a parameter that takes into consideration the magnitude of the damages caused to the water on the grounds of the failure to observe the admissible values for discharge. This parameter is obtained by multiplying two factors: (i) the “non-observance factor”, represented by a value that indicates the degree of non-observance of the effluent parameters fixed by law[3], and (ii) a unit equivalent to AR$344, according to Resolution 162.

The IT is a value obtained by multiplying the unit value by the value assigned by the Resolution to each conduct categorized as an infringement to the liquid effluent overturn regulation. This latter value varied from 1 to 15, depending on the infraction.

Finally, the FR represents the number of consecutive recidivism in which the offender incurs in during a 3 year period as from the last inspection.

Resolution 444 has recently modified the content of some parameters mentioned above.

In the first place, it modifies the BF values (“base fija”)and the unit which are established in an amount equivalent to the basic salary for Class 1 of the salary scale established in Provincial Law No 10,384[4], expressed in pesos.

Secondly, it increases the values allocated to certain infringements that entail the violation of the liquid effluent overturn regulation that determines the IT factor value.

The infringements whose values are increased are:

(i)               replacement of facilities approved by the ADA without authorization;

(ii)               refusal to provide information required;

(iii)               overturn of harmful substances;

(iv)               overturn of liquids into the road;

(v)                lack of authorization for overturn;

(vi)               refusal to allow the entrance of inspectors to the facilities;

(vii)               concealment, misconduct and clandestinity.

In conclusion, the amendments introduced by Resolution 444, tend to increase the amounts of the fines that the ADA is entitled to impose in case of violation of the quality of the liquid effluent overturn regulation in the provincial sphere. Sanctions are significantly increased when the inspected company refuses to allow the inspectors to enter its facilities, or when clandestine installations are discovered and the offender’s misconduct or obstruction is verified.