Amendment to Environmental Management Regulation for manufacturing industry and domestic trade is approved
This June 27, by virtue of Supreme Executive Order No. 006-2019-PRODUCE, (i) amendment to Section 15 of the Environmental Management Regulation for Manufacturing Industry and Domestic Trade (Supreme Executive Order No. 017-2015-PRODUCE) that regulates the performance of environmental monitoring is approved; and (ii) the term of progressive environmental enhancement for the manufacturing industry and domestic trade activities without an approved environmental management instrument is extended.
Upon the effective date of this amendment, individuals and corporations having industry sector and domestic trade projects shall resort to entities accredited by any member of the International Laboratory Accreditation Cooperation (ILAC), based in Peru, in the event there is no accredited entity by the Peruvian Quality Institute (INACAL) that can carry out samplings, measurements and analytical determinations, in order to meet the monitoring programs approved for each project.
Notwithstanding the aforementioned, the regulation specifies that if there is no entity accredited by INACAL or ILAC in Peru for the parameter or methodology that the individual or corporation having an industrial project requires to apply in order to monitor an environmental component, monitoring conducted by an entity accredited by INACAL for different parameters and methods shall be able provided that it corresponds to the same environmental component.
This amendment is extremely favorable taking into account that, in some cases, individuals and corporations having industrial projects have an environmental management instrument that forces monitoring to be conducted under a specific methodology but having not being accredited by INACAL. Now, monitoring conducted under another accredited methodology will be able provided that it corresponds to the same environmental component, without representing a legal breach.
2. Environmental enhancement
On the other side, regarding progressive environmental enhancement, the first final supplementary provision of this regulation has set forth a kind of prior classification of the activities requiring a corrective environmental management instrument, which can be an Environmental Enhancement Statement (“DAA”) or an Environmental Enhancement and Management Program (“PAMA”), depending on the level of project impacts. Notwithstanding this classification, the regulation provides that the competent authority may change the pertinent type of corrective instrument based on project characteristics.
In this scenario, it has been permitted that individuals and corporations of industry or domestic trade sectors can adequate their activities by submitting a DAA until June 28, 2021 (i.e., 24 months starting from June 28, 2019); or a PAMA until June 29, 2023 (i.e. 24 months starting from June 29, 2021).
In this regards, it should be noted that the aforementioned regulation has set forth specifically that “individuals and corporations performing activities detailed in the Exhibit of this Supreme Executive Order do not failure to comply with the obligation to have an environmental management instrument within the terms mentioned above. Notwithstanding, the Environmental Assessment and Control Agency (OEFA) shall supervise prioritizing the guidance approach” (incorporated emphasis). In such sense, OEFA may not impose sanctions to those not having an environmental management instrument, even if they are empowered to issue preventive measures and particular orders, if applicable.
Finally, the third final supplementary provision of the Supreme Executive Order allows OEFA to demand, as administrative order, the submitting of a corrective environmental management instrument, for the following cases:
iii. For individuals and corporations of industry or foreign trade activities not included in the classification made under the regulation thereof.