A RESOLUTION APPROVING THE NEW SUPERVISION REGULATIONS FOR THE ENVIRONMENTAL EVALUATION AND ADMINISTRATION AGENCY (OEFA) IS PUBLISHED
On February 17, 2019, the Board of Directors’ Resolution 006-2019-OEFA/CD was published in El Peruano Official Gazette, which approves the new Supervision Regulations for the Environmental Evaluation and Administration Agency (OEFA) (the “New Regulations”), which are preceded by Board of Directors’ Resolutions 005-2017-OEFA/CD and 018-2017-OEFA/CD.
The New Regulations are updated as follows:
– First, the principles of institutional coordination (as evidenced in the last cooperation agreements signed by the National Labor Administration Superintendency (SUNAFIL), National Water Administration (ANA), etc.), information integration, professionalism, compliance promotion, “responsive” regulation and evidence-based supervision have been incorporated. In turn, the principles of lawfulness and presumption of truthfulness have been eliminated.
– In the article referred to definitions, two concepts are now distinguished: “Component of Controllable Unit,” which involves facilities, equipment, areas or works that are part of the Controllable Unit (being understood as the mining unit, industrial unit, etc.) and “Environmental Component,” which is the element that receives the effects of the intervention of the administered elements, such as soil, air, flora, fauna, among others, which would imply that the supervision could go beyond the Controllable Unit. Another concept that is included is the “Monitoring Location,” which is the location where sampling activities are conducted, which could also imply that these locations are not necessarily those contemplated in the instrument of environmental management.
– In respect of the supervisor obligations, it has been established that the duty to maintain secrecy about the information obtained during supervision involves adopting necessary measures to ensure confidentiality of information that constitutes an industrial, tax or commercial secret. Furthermore, the supervisor must comply with occupational health and safety requirements, without those being a hindrance to their supervision duties.
– On the other hand, the types of supervision action, which were previously described as “in-person” and “long-distance,” are now described as “on site” and “in office.” The “in office” definition establishes that the supervision action must be performed necessarily in the OEFA offices. Furthermore, regarding the on-site supervision action, unlike the previous regulation for the long-distance supervision action, the possibility that the supervision action is performed without the presence of the administered party and in areas outside the controllable unit, without specifying its extension, is established.
– One of the more relevant changes is the one referred to guidance supervision, which is intended to verify compliance with controllable environmental obligations without punitive purposes, unless significant damages or risks are identified or the efficacy of the environmental administration is affected. This type of supervision may be exercised in the following cases:
(i) In one occasion only, when the controllable unit has not been supervised before by the OEFA.
(ii) When the administered party is an individual with a business, micro- or small-sized enterprise.
(iii) Other assumptions duly supported by the OEFA contributing to an appropriate environmental management.
The guidance supervision concludes with the acceptance of the activity developed, the recommendation to implement improvements in the controllable unit, identification of risks and emission of alerts to comply with controllable obligations, or exceptionally, imposition of administrative measures that are deemed necessary.
– Regarding supervision planning, unlike the previous Regulations, an exhibit developing the preparation guidelines for the Supervision Plan has not been contemplated.
– Regarding preventive measures, it has been established that the measures may vary on the following assumptions:
(i) Unexpected circumstances;
(ii) Circumstances that could not be considered by the supervision authority when they were adopted; and,
(iii) To ensure a more comprehensive environmental protection.
– Regarding failure to comply with preventive measures, it has been stipulated that, without prejudice to the constituting offense, a coercive fine lower than one (1) Tax Unit and not higher than one hundred (100) Tax Units will be imposed.
– On the requirements of environmental management instruments, it has been established that updating, modifying or performing other rectification actions is required when it is determined that the generated environmental impacts differ significantly from those declared in the environmental management instrument or other assumptions governing the environmental impact evaluation system.
– Unfortunately, the New Regulations maintain the rules for the voluntary remediation, which unduly restrict and limit said possibility. Furthermore, the new Methodology for Risk Estimation is pending approval, which will be used to determine the magnitude of environmental non-compliance events.
For more information, please contact Francisco Tong (ftong@estudiorodrigo.com), Jenny Caldas (jcaldas@estudiorodrigo.com) and/or Ursula Zavala (uzavala@estudiorodrigo.com).
