Law on Integrated Management of Industrial and Service Industry Waste

The 1994 constitutional reform substantially modified the distribution of environmental responsibilities between the Federal Government and the Provinces, as the latter waived their exclusive competence in relation to environmental legislation, ceding part of these rights to the central government. Under this reform the Federal Government was empowered to issue regulations for minimum environmental protection requirements and the provinces were authorized to issue those regulations needed to complement them, without affecting local jurisdictions .

The Federal Government is authorized to define the basic environmental protection thresholds, while the provinces are only able to issue complementary regulations concerning the specific needs of each region.

Making use of these powers, on July 25, 2002 the National Executive partially promulgated Law No. 25,612 on "Integrated Management of Industrial and Service Industry Waste " (the "Integrated Management Law"). This partial sanction meant the exclusion of a) the section repealing the regime imposed by Law No.24,051 on Hazardous Waste (the "Law on Hazardous Waste") and all rules or dispositions opposed to it , and b) the articles that refer to criminal responsibility .

1.    Industrial waste

The Integrated Management Law unifies under a single regime the integrated management of waste generated in industrial processes, without making any distinction between "hazardous industrial waste" and waste that does not meet the definition of hazardous.

To this end it establishes minimum environmental protection requirements for integrated management (generation, handling, storage, transport and treatment or end disposal) of waste of industrial origin and from service industries generated anywhere in Argentina.

The new regime is applicable to both "industrial waste", which includes both that generated by service activities and that derived from industrial processes . While industrial waste includes "hazardous waste", it does not include bio-pathogenic, household or radioactive waste and that derived from the routine operations of vessels and aircraft .

The Integrated Management Law defines "industrial waste" as any element, substance or object in solid, liquid or gaseous state, which cannot be used by its holder, producer or generator who must therefore dispose of it, or has the legal obligation to do so , obtained as a result of an industrial process, by the performance of a service activity, or because it is directly or indirectly linked to such activity, including emergencies or accidents.

2.    Control and supervision

The Integrated Management Law charges the provincial authorities and the Autonomous City of Buenos Aires with the control and supervision of the integrated management of industrial waste; the identification of its generators, the characterizing of the waste produced and its classification into one of at least three categories according to level of risk . In addition, these authorities have been made responsible for the registers where those persons responsible for generation, handling, transport, storage, treatment and final disposition of the industrial waste must register.

The information gathered by such registers must be incorporated to an Integrated Information System to be administered by the national environmental authority .

Although the Integrated Management Law establishes that there shall be unrestricted access to such information unless it affects vested rights or national security, it would not appear to provide sufficient protection to industrial secrets.

3.    Generators

For purposes of the Integrated Management Law, generators are considered to be all individuals or legal persons, public or private, generating waste from industrial or service activities .

The Integrated Management Law establishes that generators are responsible in their capacity as owners of the industrial waste for its adequate treatment and disposal.

The responsibility of the generator does not cease with the transformation or treatment of industrial waste, except: (i) in the case of such damage caused by the increased risk from the waste as a result of inadequate or defective handling or treatment during any of the stages of the integrated management of the industrial waste, or (ii) when the waste is used as input for another productive process.

One of the main criticisms brought against the Law on Hazardous Waste was that generators received no encouragement to improve the quality or quantity of the waste generated by their industrial processes.

The Integrated Management Law innovates in this area. It lays down that promotional measures should be established for those generators implementing programs for improvement in technology as a result of an integrated environmental management, when they are to be used to improve industrial and manufacturing processes, reduce environmental pollution, halt hazardous waste discharges on or into natural resources and reduce environmental risks that might be caused by the exercise of their activities .

However, the Integrated Management Law does not establish the type of promotional measures to be adopted, leaving the decision to issue such measures to the national, provincial and City of Buenos Aires authorities. These measures must be established and are not optional for the provinces. Such measures may include tax deductions and exemptions for generators and subsidies to those using certain types of technology for the treatment of their waste.

Economic instruments for the protection of the environment enable the State to use financial incentives to direct behavior to more sustainable activities and discourage those that are more harmful for the environment in general, having revenue criteria as a secondary objective. The Integrated Management Law encourages the use of more sustainable methods, abandoning the clearly revenue-oriented criteria that prevailed under the Law on Hazardous Waste. Even though this is a positive tendency, its implementation is doubtful taking into account the economic conditions prevailing in Argentina.

4.    Technologies

The Integrated Management Law establishes that its enforcement authority will establish the minimum and necessary characteristics of the technology to be applied in the integrated management of industrial waste .

The new law suffers from defective legislative technique in this area, in part because it fails to take into account that the enforcement authority will not be in a position to adapt to the technologies with the speed at which they evolve, and because it does not recognize the existence of other methods at the disposal of the enforcement authority to stimulate generators to use a given technology in the treatment of their waste.

Lastly, the obligation on generators to justify the choice of technologies to be applied in the integrated management of their industrial waste represents an unjustified interference by the enforcement authority in the business management.

5.    Transport

On the matter of the transport of industrial waste, the Integrated Management Law implements a system similar to that of the Law on Hazardous Waste. Waste must be accompanied by a manifest and must be delivered to authorized areas for storage, treatment or final disposal as indicated by the generator.

The Integrated Management Law requires generators of hazardous waste to arrange for its treatment or disposal in duly approved treatment or disposal plants.

This would be all very well if each province had its own duly approved treatment or final disposal centers, but in fact many of them do not, or they only have technology suitable for certain types of waste.

The constitutional limitations that certain provinces have imposed on inter-provincial traffic of hazardous waste should be added to this . For example, we could mention the case of the province of Buenos Aires, where most of the country's treatment plants are located and which has a Constitution that expressly prohibits bringing toxic or radioactive waste into its territory ..

Although the constitutional reform was the start of environmental coordination between the Provinces and the Federal Government, the solution to the problem posed by the Integrated Management Law is eminently formal, as it is based on circumstances that do not reflect the environmental reality in the Republic of Argentina.

This law establishes that when the transport of waste has to be made across provincial borders or those of the City of Buenos Aires, there should be a prior agreement between the jurisdictions involved establishing the conditions and characteristics of the transport .

The Integrated Management Law does not take into account the constitutional limitations that cannot be set aside by any agreement, nor the lack of consensus in the matter between some of these provinces. A clear example is provided by the province of Buenos Aires and the City of Buenos Aires, which since the passing of the Hazardous Waste Law have been unable to reach a formal agreement on inter-provincial transport of hazardous waste generated in their territories within a secure legal framework.

The responsibility of the carrier is similar to that laid down in the regime applicable to hazardous waste, as it makes the carrier responsible as a guardian during the transporting of industrial waste from the place where generated to those of storage, treatment or final disposal.

However, the Integrated Management Law does innovate in that it establishes that carriers must ensure the repair of any possible environmental damage that their activity might cause, to which end they should take out third party liability insurance, a surety bond, bank bond or other equivalent guarantee, as will be laid down in the regulations.

6.    Treatment and final disposal

According to the Integrated Management Law, treatment and final disposal plants must be approved. To this end an environmental impact evaluation is necessary on which the approval or rejection of the authorization will be based.

In addition, it establishes that the federal enforcement authority should lay down the overall criteria for the methods and feasibility of storage, treatment and final disposal of industrial and service industry waste.

In relation to the responsibility of the owners of storage, treatment or final disposal plants, this law increases the liability established by the Hazardous Waste Law, as they are now held responsible as owners and/or guardians for all damage caused as a result of the activity they perform .

As in the case of the carriers, owners of storage, treatment or final disposal plants must ensure the repair of any possible environmental damage that their activity might cause and should take out third party liability insurance or offer some other equivalent guarantee, as will be laid down in the regulations .

7.    Civil liability

In general terms, the Integrated Management Law lays down a system of responsibility similar to that of the Hazardous Waste Law, as it classifies industrial waste as a risk item under the terms of the second paragraph of section 1113 of the Civil Code.

In addition, it renders any transmittal of title or voluntary abandoning of industrial waste ineffective before third parties and lays down that the owner or guardian shall not be absolved from responsibility by demonstrating the fault of a third party for whom it should not be responsible and whose action could have been avoided if due care had been taken.

Nevertheless, a slight change is made, as the generator is absolved from responsibility when the waste is used in another productive process, as long as this can be demonstrated to the enforcement authority .

8.    Administrative responsibility

The Integrated Management Law establishes that violators of the law, its regulations and complementary rules may be subject to warnings, fines, closure, suspension of activities for up to one year and definitive withdrawal of authorizations and registrations in the appropriate registries. In addition, it establishes the possibility of multiplying the penalties in the case of repeat offenses, laying down that in the case of legal persons, those responsible for the board, management or administration shall be severally liable for such penalties.

9.    Criminal liability

The Integrated Management Law attempted to include a new type of crime with prison terms of between 3 and 10 years for those making use of industrial and service industry waste to adulterate or contaminate water, soil or air, placing the population's quality of life at risk, living things in general, biological diversity or ecological systems, in the Criminal Code.

This modified the traditional system of criminal custody rooted in crimes against security, in particular public health, replacing this legally protected interest for that of "quality of life of the population", "living things in general", "biological diversity", "ecological systems", that is to say, a much wider and more ambiguous criminal categorization than that established by the Hazardous Waste Law. This was the reason for the Executive Branch veto of the pertinent articles.

10.    Jurisdiction

The Integrated Management Law diverged from the course followed by the Hazardous Waste Law regarding competent venues by granting competence in actions derived from the law to the ordinary courts.

11.    Conclusions

The passing of the Integrated Management Law, far from unifying the regime on the disposal of waste from industrial and service activities has helped contribute to the regulatory chaos that exists in relation to these matters.

The uncertainty provoked by the passing of this law could partly be overcome once Congress decides if it will insist with the articles vetoed by the Executive Branch, or if it modifies their wording.

Also, the Integrated Management Law has still not been regulated. This regulation will either clarify or cast further shadow on the legal precepts. However, until the Integrated Management Law is regulated, hazardous waste will continue to be handled in accordance with the Hazardous Waste Law, and waste classified as industrial will become subject to the Integrated Management Law and complementary laws that the provinces will issue as a result.

Finally, it can not be discarded that the effective application of the Integrated Management Law might result in an increase in the costs related to the environmental management of the subjects governed by such law.