Prosecution of directors of a mining company for dangerous pollution

In May, 2008, the Federal Court of Appeals of the Province of Tucuman prosecuted the general manager and vice-president of the mining company La Alambrera Ltda. for considering him the perpetrator of the crime of dangerous pollution, article 55 of Law 24,051 of Hazardous Waste.

Said article establishes a penalty applicable to those parties who use the hazardous waste referred to in the Hazardous Waste Law to endanger human health, poison, pollute and contaminate the soil, water, atmosphere or the environment in general. Pursuant to article 57 of the same law, when one of those acts has occurred as a result of a decision of a corporate person, the penalty will be imposed to its directors, managers, syndics, members of the supervisory committee, administrators or representatives who have been party to the criminal action.

The Federal Court of Appeals of the Province of Tucuman held that, based on the information offered by the public agencies and the test practiced by technicians of the National Gendarmerie over samples, there was evidence of the existence of environmental contamination in the channel of water-drainage DP2 where this company discharges its industrial effluents.

Moreover, the Court of Appeals held that the representatives of the mining company were aware of the infringement of certain environmental requirements on the water-drainage DP2 because that situation had led them to the construction of a treatment plant, even though after the inauguration of such plant, non-allowed levels of contamination were detected as well.

On the other hand, the dissenting member of the tribunal affirmed that there was no evidence to prosecute. Also, he argued that the criminal liability is the “last ratio”, thus in environmental issues, first of all, it is necessary to take into consideration different provisions, with the participation of the different actors, where the Nation dictates the minimum requirements and the Provinces the complementary norms.

For further information on this topic please contact María Morena Del Río