Category: Environment

Recently, the draft Law to Authorize the Use of Water for Human Consumption and Construction of Works in Heritage and Construction of Works in Natural Heritage of the State was approved in second debate, which, if not vetoed by the president for reasons of opportunity or constitutionality, will soon be incorporated into the Costa Rican regulatory body.

The project approved by the Legislative Assembly only has two articles, so its text leaves the door open to doubts about its application. However, in this case, the text of previous considerations that the legislators had at the time of approving the project, can give us a better understanding of the text of what will soon be law. Therefore, we present below a brief analysis of its implications:

1. The operators of the public drinking water service may take water directly from the protected wild areas or the Natural Heritage of the State, as long as they are going to be used for human consumption. This conclusion is reached from a joint reading of the articles that make up the draft standard, in addition to the previous considerations of the same, where it is highlighted that the impact that the water intakes would generate on the environment is justified because access to the Drinking water is also a human right, and is of particular importance since other rights such as life and health depend on it.

1. It is not an automatic authorization, so that the operators of the drinking water service can make use of the waters coming from the natural reserves, it is necessary that:

• The AYA issues technical criteria on the possibility of taking advantage of water from a given source, and establishes the permitted limit.
• The water collection project is declared of public interest.
• The permit issued by MINAE for this purpose is obtained.

1. Although precision is not made within the two articles, within the previous considerations, it is explained that the civil works that must be done for the water intake, must always be of low environmental impact, only to take advantage of water that runs superficially. , excluding the exploitation of underground water wells.

If larger works are necessary, they must be done outside the protected area.

1. The use of water in protected wild areas and other places that make up the Natural Heritage of the State must always guarantee the environmental flow, understanding this as the amount of water that the environment needs for the proper development of ecosystems.

The decision to develop works within Protected Wilderness Areas and other properties that make up the Natural Heritage of the State is not easy, and should be avoided whenever possible. However, those who support the project find strong support in the importance of supplying drinking and clean water to all people, since the latter is also a fundamental right, which is also basic for other equally important rights.

Derived from the rise of the environmental issue worldwide, an awareness is being generated in the preservation of natural resources and the conservation of the environment, which is accompanied by a series of regulations to that effect.

According to Guatemalan regulations, companies whose activities may cause damage to natural resources or the environment must have the respective licenses and must also meet minimum health requirements, which are described below.

ENVIRONMENTAL INSTRUMENTS

The environmental instrument is the generic name given to the authorization granted by the Ministry of Environment and Natural Resources for the development of works, projects or industries that have an impact on the environment. The impact on the environment or natural resources is evaluated by an environmental instrument, in which the mitigation measures that must be carried out are determined.

According to the Environmental Assessment, Control and Monitoring Regulation, the environmental instrument is divided into three classes: i) predictive, ii) corrective and iii) complementary.

The predictive  ones include all the environmental instruments that are carried out before the start of the work, project and industry, which according to their impact category can be:

1. a) initial environmental assessment
2. b) environmental impact assessment study
3. c) strategic environmental assessment
4. d) activity form for registration in the listings

The correctives  include all the environmental instruments that are carried out after the start of the work:

1. a) environmental diagnosis
2. b) low-impact environmental diagnosis
3. c) corrective activities form for registration

The complementary  ones cover all the environmental instruments that support the predictive and corrective environmental instruments and these can be:

1. a) environmental risk assessment
2. b) social impact assessment
3. c) evaluation of cumulative effects
4. d) environmental management plan

The administrative procedure for the approval of an environmental instrument is as follows:

• The proponent submits the file of the environmental instrument, whatever its nature, before the Ministry of Environment and Natural Resources.
• The General Directorate of the Environment and Natural Resources issues an approving resolution specifying all the mitigation measures that the proponent must comply with in the project, work or industry. This resolution establishes the amount for which the project, work or industry must be guaranteed.
• The proponent pays the bond corresponding to the amount indicated in the approving resolution issued by the General Directorate of Environment and Natural Resources.
• The proponent requests the issuance of the corresponding Environmental License and this is issued by the General Directorate of Environment and Natural Resources, for a period of 3 to 5 years, at the request of the proponent.

It is necessary for the proponent to comply with all the steps of the related administrative procedure in order to operate or otherwise it would be subject to the imposition of fines that may consist of between Q. 5,000.00 and Q. 100,000.00 (approximately US$700.00 up to US$14,000.00) for each breach.

According to the Law for the Protection and Improvement of the Environment, any work, project, industry or activity that, due to its characteristics, may cause damage to renewable or non-renewable natural resources, or to the environment, must have an Environmental Impact Study approved by the Ministry of Environment and Natural Resources prior to its development.

In other words, any person, whether individual or legal, must carry out an Environmental Impact Study prior to carrying out any activity that generates a detriment to natural resources. If the person fails to comply, he will be subject to sanctions consisting of fines established in the Regulation of Evaluation, Control and Environmental Monitoring.

The Environmental Evaluation, Control and Monitoring Regulation was approved in July 2016 and granted a period of two years for people who do not have the Environmental Instrument to regularize their situation. Consequently, in July 2018, all persons who carry out a work, project, industry or activity that may damage renewable or non-renewable natural resources, or the environment, must have the respective Environmental Instrument. Said regulation establishes the requirements that the Environmental Impact Study must meet.

Given the period granted for people to regularize compliance with environmental obligations, the Ministry of Environment and Natural Resources is not imposing fines for not having the approved environmental instrument or for submitting the corrective environmental impact study after the start of the project. operations. The fines will be imposed upon expiration of the term granted to regularize the fulfillment of such duties, and will range between Q. 5,000.00 and Q. 100,000.001, depending on the category of the environmental instrument that should have been managed according to the activity that is developed and the environmental impact. to occur.

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The Kyoto Protocol (2005) aims to force developed and developing countries to fight for climate change through international action to reduce emissions of Greenhouse Gases -GHG- that are responsible for global warming. .  

In this way, the famous “carbon bonds” arise, considered an international mechanism to offset carbon emissions to the environment.  

These bonds consider the right to pollute as an exchangeable good and with a price established in the international market. The transaction of carbon credits allows mitigating the generation of polluting gases.  

Specifically for the forest issue in 2007, the Strategy for Reducing Emissions from Deforestation (REDD+) was created in the United Nations Framework Convention on Climate Change, which seeks to recognize and provide positive incentives to developing countries to protect their forest resources, improve their management and use them sustainably, especially conservation of carbon stocks, sustainable management of forests and the increase of forest reserves in developing countries.  

At the governmental level, the Ministry of Environment and Natural Resources, together with the institutions that seek the conservation and sustainable use of natural resources and support from the international community, seek to create a framework of policies, actions and activities that allow the reduction of emissions by promoting the conservation and sustainable use of forests.  

Currently in Guatemala, there are projects dedicated to these actions, such as Guatecarbon, located in the multiple use zone of the Mayan Biosphere Reserve in the department of El Petén, seeking to reduce deforestation, reducing river sedimentation, preserving the biodiversity that is being produced by the expansion of the agricultural and livestock frontier.  

Guatecarbon integrates the private initiative, foreign investment, government entities, community associations, which is an action of great importance of inter-institutional work to achieve the conservation of the environment and prevent its contamination.

    

In the business environment, there is a diversity of obligations and requirements that must be developed and fulfilled, both at the national and international legal level, internal requirements of the company or of the parent companies, among others.  

One aspect that is generally the least attended by companies is that related to environmental aspects. Because it is an unknown, new, different and unusual subject, the collaborators, directors or managers in charge have a large amount of work, various areas and tasks in charge or little experience in the subject.  

This lack of knowledge and little attention can generate carelessness and breaches of environmental legal requirements by companies, generally related to wastewater treatment plants, final disposal of solid and hazardous waste, groundwater management, environmental instruments, control of noise and emissions, which can result in: fines, license suspensions, closures, administrative and criminal complaints. 

The environmental regency can be defined as the series of actions aimed at carrying out control, compliance and monitoring of environmental obligations by companies. It must be carried out by an expert, with experience in both technical and legal matters. First of all, these environmental obligations must be those established in current national and international environmental laws and those set internally by companies to meet quality standards or internal management standards.  

From this account, the environmental regency practically becomes a crutch or key support towards the collaborators, directors or  in  – house managers  of the companies and guarantee in an effective, professional and comprehensive way that the company is in compliance with national and international standards in environmental issues.  

Decree 41525-S ” Regulation for the digital processing of records and authorizations of the Ministry of Health in the integral management of waste in the SINIGIR platform “ recently came into force , whose greatest novelty is to order all companies with a physical establishment to register and keeping a comprehensive waste management plan digitally updated.  

Both for incorporation into the Organization for Economic Cooperation and Development (OECD) and to comply with the Sustainable Development Goals set by the General Assembly of the United Nations Organization (UN), Costa Rica must adapt its internal legislation to a series of regulations, international standards and good practices aimed at sustainable production and consumption. And it is precisely for this reason that a digitized registration system is established that seeks to make Comprehensive Waste Management much faster and more transparent. 

The most important changes imposed by the new Decree 41525-S are the following: 

1. The duty to register and annually update the waste management plans is established. These plans are a necessary requirement to obtain the Sanitary Operating Permit required by all work establishments to operate legally, therefore, any company that has a physical headquarters must enter the information into the SINIGIR system and update it before March every year. 
2. Authorizations to import goods whose waste is considered special handling and the records of authorized managers will be made virtually. For any application before the SINIGIR, it will be automatically verified if the applicant company has the current Sanitary Operating Permit. 
3. Additionally, for the authorization of importation of special handling goods, a compliance unit must be created, which is a mechanism to ensure that importing companies will be responsible for the special waste generated by the goods they bring into the country. Under the new decree, such compliance units must register and report their activities, also virtually. 
4. It is established that all requests must be reviewed by the Ministry of Health within a period of 10 business days. In the event that it is determined that the documentation is incomplete, the applicant will be informed of this situation, and will have 10 working days to correct any lack. After that, the Ministry of Health will have 3 days to resolve the request. 
5. Municipalities, which by law must have a comprehensive solid waste management plan, must now register them with the SINIGIR system managed by the Ministry of Health. This is an encouraging novelty, because in practice, few Municipalities have such plans and therefore many fail to manage waste recycling and revaluation. Under this new scheme, the Ministry of Health will be able to monitor that the Municipalities comply with their legal duty to have updated waste plans. 

 

As we can see, this Decree 41525-S, in order to achieve greater fluidity, transparency and compliance with waste management regulations, created a new series of duties that affect most companies in the country; however, this is nothing more than the application of more efficient technological tools to legal obligations that already existed and is one more step towards a sustainable consumption scheme typical of a circular economy that uses its waste for the production of new goods and services.

  

On January 21, 2019, the Bill to solve the contamination of plastic waste entered the Economic Affairs Commission, which would once again make Costa Rica one of the pioneering countries in the fight against pollution and the conservation of the natural resources. This bill proposes very ambitious regulations that would prohibit public purchases of single-use plastics, prevent the production and import of certain types of polymers, and create a tax on plastic products.

At the time of its presentation, the project had the endorsement of 20 deputies from various political parties. This is not hard to imagine, as there are plenty of reasons to justify efforts to reduce plastic waste, for example:

• Plastic waste usually takes a long time to decompose naturally, it is estimated that an average plastic item would take around 1,000 years to decompose.
• There has been an exponential growth in the production of plastic worldwide, in 1950 around 1.5 million tons of plastic were produced, while by 2014 a production of up to 311 million tons was reported.
• Disposable plastic products make up around 70% of all litter found on beaches.
• It is estimated that for every square kilometer of sea, there are 13,000 pieces of plastic. Such a concentration can cause even humans to be consuming plastic without even knowing it.
• According to a UNDP report, in 2017 at least 600 million plastic bottles were produced in Costa Rica, of which almost 90% were not collected and therefore would end up in watersheds, coasts and marine environments.
• The natural decomposition process of plastic generates two of the main greenhouse gases: methane gas and carbon dioxide.

Despite the controversial measures included in the bill, it has the virtue that it is not only concerned with imposing difficult duties on the private sector, but also divides the responsibilities of reducing pollution among all the people who cause it, which It agrees with the principles of “ Shared Responsibility ” and “ Polluter Pays ”, which are already universally accepted in environmental matters.

If approved by the Legislative Assembly, the bill would impose the following:

1. Prohibition of single-use Expanded Polystyrene (stereophone).

Article 4 of the Project proposes the prohibition of the distribution, commercialization, production and importation of single-use stereophonic products. This prohibition would not apply when it is scientifically proven that there are no alternative products in relation to the preservation and protection capacity of food or other products.

This type of prohibition is not new worldwide, since 1987 it has been limiting Expanded Polystyrene foam containers in certain states of the United States and there are currently more than 100 locations in that country that have some type of restriction on its use. Similar examples are also found in China, Taiwan, Canada and India.

For this reason, although the ban may have immediate effects that destabilize the economy of certain sectors, there are already enough products on the market that serve as an alternative to this material whose global warming potential is between 1,000 and 1,200 times higher than the emissions of carbon dioxide. Carbon.

1. Prohibition on Public Administration Purchases.

Article 5 of the Project would prohibit State institutions from buying single-use plastic products. This is an initiative that different administrations have already been taking individually, so this situation has already proven to be a real possibility in Costa Rica.

However, this prohibition is not absolute, as exceptions can be made for safety and health reasons for certain medical and pharmaceutical products such as: syringes, masks, IV bags, mouthpieces, nebulizers, etc.

1. Prohibition of Microbeads or Microplastics:

Without exception, article 6 of the Project prohibits the importation, distribution and production of articles containing microbeads or microplastics.

Microbeads are solid plastic particles that are less than a millimeter in size, they are mainly made of polyethylene, although they can also be derived from pretrochemical products. Microbeads or microplastics are mainly used in human personal care products such as exfoliating creams and toothpastes.

The Project opts in this case for the most severe prohibition, since this is absolute. This is so because they are products that are harmful to health and the environment, with the aggravating circumstance that they are invisible and consumed directly by humans. Additionally, brands such as L’Oreal, Johnson & Johnson and Crest have developed multiple biodegradable alternatives with no negative environmental impact.

1. Recycling goal 2030:

Like the European Union, the Project proposes that by 2030 all single-use plastic containers that are imported, produced or marketed in the country are recyclable.

This shared goal depends largely on the action of the European Union or other major players in the international market. Only if large markets begin to develop and demand these types of products, will there be the necessary supply of single-recyclable plastic products sufficient to supply the demand of the entire country.

1. Plastic Tax:

Chapter II of the Project proposes the creation of a Tax on Plastic, which falls on the import, sale or free delivery of plastic products.

Although the tax would fall on importers, producers or sellers of plastic products, this cost will be included in the sale price to the consumer, and with it a reduction in the consumption of such products is expected.

Taking into consideration the aforementioned “Polluter Pays” principle, the proposed tax would be more severe with those types of plastic that pollute the most, or those that are not as necessary, because they have viable substitutes in the market. Thus, the tax would be calculated as follows:

Kind of product	Tax.
Plastic inputs (except styrene polymers that serve as raw material for the stereophone)	10% on the customs or retail value.
Reusable plastic products.	15% on the value of customs or sale to the public.
Single-use plastic products.	25% on the value of customs or sale to the public.
Styrene polymers	25% on the customs value.

The time of payment of the tax would be at the time prior to clearance in the case of imports. In the case of national sales, a scheme similar to that of the Sales Tax is established, where all sales made in the previous month must be declared and paid within the first 15 days of each month.

As we have seen, this tax seeks to make products more expensive so that their consumption is reduced, for this reason those items whose consumption is not optional such as finished products and raw materials for the manufacture of biomedical, veterinary products are exempted from payment. and pharmacists.

To encourage the recovery of materials, article 17 of the Project establishes that any taxpayer who demonstrates that he/she made expenses in the recovery, treatment or recycling of plastic products, may deduct said sums from the payment of the plastic tax.

1. Mandatory labeling :

Similar to cigarette boxes, the bill would mandate that all products packaged in single-use plastic materials must be printed with picture messages describing the environmental effects of the plastic.

These types of messages have a clear discrediting effect on the product, and have as an immediate precedent the dissuasive propaganda that tobacco packs have been carrying for years. In the case of the latter, there was a whole discussion about the right to the image of cigarette brands and the limitation that the imposition on the design of their products supposed. Until now, the general response to this dilemma has been that public health and the right to information of consumers should prevail over the particular rights of companies.

1. Blue Fund and Payment of Environmental Collection Services :

The Project proposes the creation of the so-called Blue Fund, whose goal is to finance projects that reduce the production of single-use plastic and the reprocessing of used plastic. In practice, the Blue Fund will be administered by the Directorate for Environmental Quality Management (DIGECA) and will obtain its resources from part of the proceeds from the plastic tax and from donations.

It is proposed that, from the second year of operation of the fund, it allocates 50% of its resources for the payment of monetary compensation that would be received by the people and organizations that are dedicated to the collection of plastic waste in marine-coastal and riverside areas. . With this, it is sought that the business of collecting revalued material is more profitable and more people join this activity.

This compensation scheme is the flip side of the polluter pays principle: whoever conserves benefits. It is then a payment for environmental services, similar to those that FONAFIFO pays for carbon capture and removal services, to people who conserve forests or manage forest plantations.

1. Exemption from other taxes :

Article 37 of the Project establishes an exemption from the import tax on machinery and equipment necessary to recycle, recover and transform plastic materials.

On the other hand, article 38 proposes that products certified as compostable may request a refund of 8% of the General Sales Tax.

As we can see, this is a bill that would bring many changes both to the production of plastic and to the consumption habits of the entire country, and its implementation would be a global advance in the fight against plastic pollution. However, the fulfillment of such ambitious goals depends a lot on factors in international supply and demand, as well as future regulatory developments.