New regulation of Industrial Settlement Law in Buenos Aires Province
By means of Decree N° 531/2019 (the “Decree”) the Executive Branch of Buenos Aires Province issued a new regulation regarding Law N° 11,459 (‘’the Law’’), that updates and specifies the procedures for industrial settlement in Buenos Aires Province.
The new regulation rules certain aspects of the three stages that new industries should accomplish to settle in the provincial territory (Classification of the Level of Environmental Complexity -Clasificación del Nivel de Complejidad Ambiental-, Environmental Aptitude of the Establishment Project –Aptitud Ambiental del Proyecto de Establecimiento- and Functioning Environmental Aptitude –Aptitud Ambiental para el funcionamiento-. ), in order to obtain the Certificate of Environmental Fitness (“CAA” for its acronym in Spanish) that every industry must be granted, as well as its renewal and the required filings in case of layout modifications of the industrial facility. The Decree also regulates the prefeasibility of industrial settlement provided in the article 14 of the Law.
On the other hand, it also considers the regularization of industries and industrial parks that do not have a valid CAA. In this aspect, it is important to recall that according to the modification introduced by Law N° 15,107, published on the Provincial Official Gazette on January 4th of this year, every industrial plant in the Province that does not have a valid CAA, have a one year term to start the proceedings for its procurement. The Decree states that once that term expires, a sanctioning proceeding will be initiated because it is considered that the industrial facility operates irregularly.
Regarding the facility ownership changes, the Decree sets the terms in which those changes must be informed to the competent authority, imposing serious consequences in case of breach of such duty, since both parties will be jointly and severally liable for the detected regulatory breaches and for the environmental liabilities of the industrial plant may have.
The infringements will be classified as: very slight, slight, medium, severe, very severe, enhancing the amounts and terms of the sanctions depending on the quantity of relapses.
According this new regime, the preventive closure of the industrial facility will proceed if (i) it does not have been granted the CAA or the lack of timely renewal and/or (ii) there is serious danger of foreseeable damage upon the employees health, community or the environment, and the situation does not admit delays in the adoption of preventive measures. In the last case, the closure of the facility can be total or partial and limited to the sectors o machines that cause the damage or imminent risk.
The industrial facilities that under the regime established by Decree N° 1741/96 have proven to be preexisting to the sanction of that regulation, will be allowed to continue their functioning in the place where they are currently settled, even when the place in which they are located is categorized as an unfit zoning area, as long as they do not change their productive processes or expand their dimensions. In those cases, changes only will be allowed if they represent a technological and environmental improvement and to be priorly approved by the enforcement authority.