The Second Environmental Court, with a dissenting vote, accepted the claim filed against the fine of 628 million pesos (856 UTA) filed by the Superintendency of the Environment (SMA) against the Áridos Cachapoal plant, for three violations of the resolution of environmental qualification (RCA) that approved the project and circumvention of the Environmental Impact Assessment System.
As a consequence of the above, the Court maintains, the SMA must again determine the amount of the fine imposed when resolving the reinstatement, considering what is indicated in this ruling.
“In the opinion of these sentencing officers, the SMA violated the principle of consistency by modifying the weighting of a circumstance that was not alleged by the appellant, a defect that directly affects the determination of the total amount of the fine imposed on the claimant Áridos Cachapoal” , says the ruling.
The Court was made up of Minister Marcela Godoy Flores, president, and ministers Cristián Delpiano Lira and Cristián López Montecinos. The sentence was drafted by Minister Godoy and the dissent by Minister Delpiano.
THE CASE
In May 2020, the SMA sanctioned Áridos Cachapoal with a total fine of 2,379 UTA, for the following infractions: failure to execute the obligations related to the management and disposal and collection of reject material in the operation of the project; carry out extraction tasks without having sectoral environmental permits; not executing the obligations associated with the milling process in that the water from the process is not recirculated through settling pools, but rather is returned to the Cachapoal River directly through a canal; and, finally, by evading the SEIA, the extraction of a volume of aggregates between 1,064,770.8 and 1,540,017.9 m3, in an approximate area of 41.4 ha, from bodies or water courses without the corresponding environmental authorization.
The company went to the Court after the supervisory body partially accepted an appeal for reconsideration filed against the sanctioning resolution, which led the SMA to reformulate the total amount of the sanction from 2,379 to 856 UTA (Res. Ex. No. 2,401 /2022). In this context, the Superintendency reduced the fine imposed for evasion from 2,230 to 770 UTA.
FACTOR COVID-19
In its analysis of the controversy associated with possible defects of foundation to determine the amount of the sanction – article 40 of the Organic Law of the SMA (LOSMA) -, the Court draws attention to the points questioned by the company in the appeal of replacement, especially in relation to the economic benefit obtained as a result of the infringement and the economic capacity of the offender.
In no case, he maintains, did Áridos Cachapoal raise questions regarding the circumstance regulated in literal i) of the LOSMA (another criterion that, in the reasonable opinion of the SMA, is relevant to determine), which was the criterion used by the SMA to weigh the effects of COVID-19 on the sanctioning resolution.
“In this way, the fact that the SMA has ruled in the reconsideration about the origin of COVID-19, without the claimant having challenged, alleged or questioned the weighting of the circumstance of literal i) of the Article 40 of the LOSMA, (…) allow us to conclude that the requested body has transgressed the necessary congruence that must exist between what is alleged by the appellant and what is resolved in the appeal for reconsideration. The above is aggravated because the SMA not only “reviewed” the weighting carried out in the sanctioning resolution of COVID-19 in a different circumstance than the one it considered at the time of sanctioning, since it does so within the framework of the circumstance of the letter. f) of article 40 of the LOSMA, but also proceeds to reject its original consideration, under the argument that said health event is now incorporated into the analysis of the circumstance regulated in the aforementioned literal f) of article 40″, points out the error.
In the opinion of the Court, the SMA incurred a defect by modifying a weighted adjustment factor in a circumstance of article 40 of the LOSMA that was not claimed, within the framework of the analysis of another circumstance that was, “which constitutes grounds for sufficient to accept the claimant’s allegation in this regard.”
Despite the above, the Court considered it necessary to highlight that, contrary to what was maintained by the SMA, it is not true that the recalculation of the muta left the company in a “better situation” with respect to the original sanction.
“When the reinstatement was accepted due to an erroneous determination of the economic benefit for violation No. 5, the SMA determined that the correct amount was 250 UTA. Thus, if the weighting of COVID-19 had been maintained in the terms established at the time the sanctioning resolution was issued (the total fine corresponds to the economic benefit), which is precisely what this Court estimates should have occurred if the SMA had respected the consistency, The final fine for violation No. 5, after accepting the reconsideration appeal, should have been equivalent to the new economic benefit (250 UTA), an amount that is well below the 770 UTA imposed when resolving the replacement,” he concludes. .
Likewise, the Court rejected the allegations associated with a possible illegality for not consulting the Environmental Evaluation Service, so that it could indicate whether or not the project should enter the SEIA; the origin of the Compliance Program (COP) regarding the charge for circumvention and an alleged erroneous classification of circumvention.
It should be noted that, although SMA incurred a defect by preventing the company from incorporating the charge of evasion of the SEIA into the Compliance Program, given that the aforementioned violation had generated environmental damage, the Court determined that this was not essential since in all In other words, the supervisory body rejected the PdC with respect to the other charges because it did not meet the requirements of integrity, effectiveness, and verifiability. It clarifies that the impossibility of presenting a PoC in cases in which the generation of environmental damage is alleged, raised by the SMA Guide, goes beyond what the law provides.
In his vote against, Minister Delpiano was about to reject the claim in all its parts, with the understanding that the SMA acted correctly by modifying the weighting of the effects of the COVID-19 pandemic.
“The above, as at the time of resolving the replacement, it was no longer appropriate to make the additional adjustment for COVID-19 considered in the sanctioning resolution, since the information corresponding to the annual income of Áridos Cachapoal for the year 2020 was available, a period that understands the effects that the pandemic has on the operation of the company. Thus, if an additional adjustment for COVID-19 had been considered, in the opinion of this dissident, a double weighting of the aforementioned circumstance would have been incurred,” says the dissent.
The project (RCA N°182/2012) consists of the maximum extraction of 300,000 m³/year of aggregates and sand from the Cachapoal River bed for a period of 10 years, while the extractive and grinding works are located on the riverbank. south of the channel of the aforementioned river, between the Cachapoal Ruta 5 Sur and Cachapoal Carretera Panamericana bridges, belonging to the Olivar commune, Gultro town, O’Higgins region.
THE CHRONOLOGY OF THE CASE
On July 20, 2015, the SMA received a complaint against Áridos Cachapoal, because it was collecting material on the north side of the Gultro Wastewater Treatment plant, causing obstruction of the effluent outlet of said plant, which forced discharge untreated sewage. On June 16, 2016, an environmental inspection was carried out at the reported aggregates company. Meanwhile, on March 27, 2018, the SMA filed charges against Áridos Cachapoal, for 5 environmental violations (Res. Ex. No. 1/Rol D-019-2018).
While, on April 19, 2018, prior authorization from the Second Environmental Court (case S-64-2018), the measure was ordered to stop the operation of all extractive activities, carry out monitoring and manage waste material according to as established in the RCA of the project, among others, for a period of two months (Res. Ex. No. 455/2018). These measures were renewed once.
Subsequently, on May 11, 2018, Áridos Cachapoal presented a Compliance Program only for those charges that were not associated with the existence of environmental damage, which was rejected by the SMA (Res. Ex. 9/2019). On May 6, 2020, the SMA sanctioned the company with a fine of 2,379 UTA (Ex. Res. No. 730/2020). On the same day, the SMA issued Exempt Resolution No. 730, by which it acquitted the offender for charge No. 4 consisting of carrying out extraction tasks outside the hours established by RCA, and sanctioned him with a fine of 74.41 , 34 and 2,230 UTA, for violations 1, 2, 3 and 5 (avoidance), respectively.
Furthermore, on November 26, 2020, the company filed an appeal for reconsideration against the Resolution and on November 21, 2022, the SMA partially accepted the aforementioned appeal, reformulating the amount of the penalty to 856 UTA (Res. Ex. No. 2,401/2022). Reduced the fine imposed for evasion (charge No. 59) from 2,230 to 770 UTA.
Finally, on December 15, 2022, Áridos Cachapoal filed a claim in the Environmental Court against the SMA decision and on October 24, 2023, the hearing was held, arguing the lawyers Nicolás Horacio Galli Burroni, for Áridos Cachapoal Ltda. and Estefani Sáez Cuevas, for the SMA.
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