3.7.12.1 Overview

Chile has spread its air quality regulatory program over several organization units. CONAMA is the primary head of the environment, similar to the United States Environmental Protection Agency. CONAMA stands for, The National Commission for the Environment and their mission is to protect the rights of citizens to live in an environment free of contamination and to preserve nature. CONAMA was founded in 1994 through legal decree 19.300, due to the increasing relevance environmental issues began to have in the government’s political agenda. CONAMA is financed by tax revenue. CONAMA’s role is to coordinate the country’s public services, supporting interaction between: transport, health, education, urbanism, and agriculture ministries. CONAMA also provides contact with the community, encouraging citizens’ participation in bringing about better air quality. This encouragement is conducted through fairs, ecological and social programs, plus environmental education.

CONAMA’s structure is directly related to the six work areas in which it takes part: nature preservation, contamination control, environmental education, citizen participation, environmental legislation, and internal relations. Within the contamination control area, several sub-areas exist, such as the Urban Atmospheric Decontamination program. In this sub-area, prevention and decontamination plans have been created and implemented, as is the case with the Metropolitan Region’s Prevention and Atmospheric Decontamination Plan (PPDA).

Working closely with CONAMA is COREMA, which is the maximum environmental authority at the regional level. COREMA stands for, The Regional Commission for the Environment. The main function of COREMA is to authorize investment projects through the Environmental Impact Evaluation System. Finally, also working in conjunction with CONAMA and COREMA is the LBGMA. LBGMA stands for the Law of General Bases of the Environment. In 1994 Congress approved the existence of the LBGMA and since then they have been one of the bodies with a direct effect on enforcement. The LBGMA is in charge of establishing legal definitions and arranging them appropriately. They also establish the instruments of environmental management such as regulations. They instigate inspections, they manage funding for environmental protection, and they are in charge of the creation of the state institution that is in charge of certain environmental topics. In addition to these general jobs, the LBGMA also takes on three areas of civil needs. First, they are charged with the generation of standards and emission limits. They have been developing these with the aid of the EIA (study of environmental impact). Second, they develop plans and regulations for maintaining a quality environment. Third, they help to carry out negative actions against those who violate environmental law.

In order to advance environmental law, the LBGMA developed the concept of “environmental damage.” This concept forces any violator of the law to repair the damage they have caused and/or pay appropriate compensation. This concept is in place to help people and companies feel a sense of environmental responsibility. Under this idea, the environmental law affirms that any person can demand from the municipality (the local government) environmental action in any area where activities harmful to the environment have occurred. The municipality will act as the informant’s representative. The person claiming environmental damage will have 45 days to alert the municipality. If, in 45 days the municipality is not informed, the person aware of the offense will be considered as associated with the offense. If the municipality is informed, but decides not to take measures, the informer must be notified with a certified letter. More specifics about enforcement will be discussed later.

Along with giving citizens of Chile a sense of environmental responsibility, Chile also believes it is important to educate its people about the environment. It is believed that education aids air pollution reduction by teaching people about the value of clean air and it helps people to develop habits than can be useful in maintaining clean air.

3.7.12.2 Overview of Environmental Law in Chile

Current environmental regulations in Chile are derived from the Environmental Act. This law decree was developed through an agreement between the government and the private sector and was approved by the national congress in 1994. It contains the definitions and procedures for the decontamination of: primary and secondary quality control, environmental education, management control, and prevention and decontamination plans. By means of the Environmental Act, the Atmospheric Impact Evaluation System (SEIA) was created and is now the main environmental management instrument. It is applied to both public and private investment projects and activities. Ultimately, within legislation, it is CONAMA’s responsibility to propose, coordinate, and approve the country’s emission regulations.

When it comes to regulation, the areas to regulate are: environmental quality and emission norms, process norms, and prohibitions. These regulations are controlled through taxes, fees, emission permits, and audits. As mentioned before, different organizations contribute to enforcing the actions put forth in the Environmental Act. Different types of emissions are under different group’s control, for example, the Ministry of Health in the case of stationary sources, the Gas and Fuel Department is in charge of controlling high fuel consumption sources (e.g. Refineries), and the Ministry of Transport in the case of mobile sources (e.g. moving vehicles). When regulations are not followed, the violator can be fined, sanctioned, and in the case of stationary sources, the emission license may be cancelled. The Ministry of Health, which regulates through the Metropolitan Region Health Secretariat works in two main areas: air quality monitoring and fixed sources monitoring. The latter undergoes permanent inspection of existing stationary sources in the Metropolitan Region. The purpose of these inspections are to prove that the facility is operative, in good working condition, and that it does not exceed environmental regulations. Generally the inspections are planned, but occasionally the Ministry of Health will perform surprise inspections.

3.7.12.3 The Atmospheric Decontamination Plan for the Metropolitan Region

In the last fifteen years, the recovery of good air quality in urban areas has been one of the government’s main priorities. After declaring the Metropolitan Region as violating air quality standards in four atmospheric polluting agents and a latent zone in nitrogen dioxide, the Prevention and Atmospheric Decontamination Plan for the Metropolitan Region (PPDA) was created in 1997 and updated in 2004 and in 2008. This document, which has 139 measures, anticipates a term of 14 years to fulfill its objectives. Among the measures proposed to obtain and maintain air quality goals are: transport emission reduction, redesigning the public transport system, fuel improvement, emission reduction in the industrial sector through correct regulation, residential emission control, and the consolidation of present mechanisms for emission compensation. Also, this plan considered the expansion of inspection and control mechanisms for proper air quality monitoring networks.

3.7.12.4 Norms and Enforcement in Chile

Chile’s primary goal, when it comes to enforcement, is to have the violator fix the damaged environment or appropriately compensate those who have been negatively affected. While it is the job of government agencies to watch over companies that could potentially harm the environment, Chile also places responsibility on the individuals of an area to watch for environmental damage. Any person, who has been directly affected by the pollution of another person/company, has the ability to bring an environmental claim to their local government against the person they believe has committed the violation. This gives the citizens the power to help ensure good air quality in their area.

To be specific, the persons or entities that may obtain repair/compensation for the damaged environment are:

*the natural or judicial, public or private persons who have suffered the damage.

*the municipalities (local governments) where damage has occurred within their area.

*the State, through the Council for Defense of the State.

*any person, within his respective municipality

With regard to the latter case, some formalities and requisites must be fulfilled:

*the person filing the complaint to the court must include technical information to back his denunciation of the offender

*if the municipality decides to demand court attention, it must express, with in 45 days, a founded resolution, and

*if the municipality is aware of the damage and does not make it known, then the municipality is jointly responsible for the damage along with the offender.

There are two planes of responsibility attributed to environmental damage. First there is damage that occurs from an ordinary citizen through negligence and then there is purposeful damage or significant damage, termed “environmental damage”. With regard to the first one, the LBGMA is responsible for rendering judgment on those civil persons who negligently cause damage to another person. The second situation constitutes judicial intervention. With environmental damage there may be a judgment that the damage must be repaired, if it is significant enough damage. In order to deem damage as significant, fault or fraud must be found against the offender. But regardless, if a standard is exceeded or plans for decontamination are infringed, then some legal actions will be taken. A violation has occurred when an environmental pollutant is between 80% and 100% of an air quality standard or if a known emission limit has been exceeded.

Applications from persons who feel they have suffered environmental damage come before the LBGMA and they must determine if the violator is actually at fault. Initially the LBGMA will be in favor of the claimant. It is the responsibility of the offender to prove their innocence and the claimant must prove them guilty. The test of innocence falls on the offender, and they must prove, judicially, that they acted diligently and honestly to prevent the damage. Below are some facts that can be used to prove an offender is guilty:

* infraction to the standards of environmental quality

* infraction to the standards of emissions

* infraction to the plans of prevention or decontamination

* infraction to the special regulations for cases of environmental emergency (which will have to be established by law)

* infraction to the standards of environmental protection, preservation, or conservation established in the laws

Should the offender be found guilty then that person will be forced to repair the damage and compensate accordingly as is mandated by the Law. However, compensation does not occur unless cause and effect can be demonstrated between the infraction and the produced damage. It is possible to bring a claim against someone and find them guilty without actually determining causality. If causality cannot be proven, the offender is only subjected to the sanctions in the law for infraction to the norms.

3.7.12.5 The Courts and Judicial Consequences in Chile

When cases of environmental infraction come to the courts in Chile they are given to The Judge of Lettering. This judge is elected for an area and the environmental damage must have occurred within his area or the person making the claim must reside within his area in order for him to preside over the case. The judge is not obligated to rule following the Code of Civil Procedure, but he is charged with the task of considering the case with common sense and rational form. This is called the Subjectivity of the Judge. In order to bring a case before the court, the claimant must do so within the space of 5 years. That is to say that the signs of damage must be demonstrated before this time is up.

Judicial consequences for offenders or persons in charge of the environmental damage are: reprimanding, a fine up to a thousand UTM (US $50,000), and temporary shut down of the offending company or permanent closing of the company. The sanction that is imposed by the court depends on the following conditions, which must be considered by the judge:

* the gravity of the infraction where environmental regulation levels have been exceeded

* the recidivism (how many times an infraction has been caused by this same entity)

* the economic capacity of the offender, and

* the fulfillment of the commitments contracted in one DIA (Declaration of Environmental Impact) or EIA (Study of Environmental Impact)

Should an offender be found guilty, they will be subject to the sanctions laid out by the court. Once a court has sanctioned an offender, another legal body may not apply sanctions for these same actions.

3.7.12.6 Control Management

The control of emission regulations in stationary sources is carried out by the Ministerial Secretariat of Metropolitan Health. All stationary sources must make public their particle emissions through random sampling, according to the CH-5 method application. This procedure aims to quantify particle emissions generated by industrial, commercial or other activities, by collecting a sample of the air pollution being injected to the atmosphere. Every stationary source has a registration number granted by the Ministerial Secretariat, which must be engraved in a plate attached to the source in a visible place. This number is granted once for the entire life cycle of the source. Its function is to allow for proper identification, control and an emissions registry.

The emission declarations are legal documents, written by the owner or legal representative of a stationary source, where all identifying and technical information is declared. Holders of single and group sources declare their results with summaries of the corresponding samples, at least once a year.

The emission samplings have the following time limits: For single sources, a year if it is isokenetic sampling; For group sources, three years if it is isokenetic sampling, except if the source is a boiler or furnace for bakeries, which uses fuel different from natural gas, liquefied gas, city gas, bio-gas, diesel petroleum and kerosene, in which case it will be a year.

3.7.12.7 Control of Emissions from Refineries

Atmospheric environmental regulation in refineries, as is the case of the industrial complex Ventanas, began in 1992 with the Supreme Decree Nº 185/92 by the Ministry of Mining. This decree was designed to expand a continuous monitoring network to measure Sulfur emission (SO2) and breathable particles (PM) in the surrounding areas. The decree was also designed to present a Decontamination Plan containing SO2 plus PM10 reduction goals to be achieved by 1998 and 1999 respectively. The decontamination measures include the installation of an acid plant, electrical furnace, plus the management of the electrical furnace and the gas converters.

These measures produced a significant reduction of both SO2 and breathable particle emissions in the Ventanas zone. Referring to particle emissions, in the year 2000, these were below 1,500 metric tons per year, which represents 5.6% of 1996’s emissions, or in other words, an approximated reduction of 94.4%. At the same time SO2 emissions were under 40,000 metric tons per year, which represents 32% of 1996’s SO2 emissions, translating to a 68 % reduction.

Between 1993 and 2004 a positive evolution of the air quality has been observed. Today primary SO2 rules and regulations are both followed and carried out. Plus the registered concentrations are under the latency level. However, although particle emission regulations have been followed, some air quality standards continue to be violated.