Ask Enhesa 12 – Latin America Special

by Enhesa 28 Feb. 2018

Contributions from Paula Diaz; Elizabeth Tomassetti; Gabriela Troncoso Alarcón; Jimena Murillo Chávarro; John Bez; and Larissa Copello

 You asked and we answered!

Enhesa’s team of multilingual regulatory analysts are committed to providing quality insight and analysis around the latest EHS news and developments via our Enhesa Flash, webinar series, and blog posts. In response, our team often receives a variety of questions regarding the broad realm of the EHS topics we cover. To meet this demand, we launched “Ask Enhesa”, a reoccurring blog series where our senior thought leaders will take the lead in answering all of your most relevant and topical EHS questions.

Let’s get started…

What is the current status of GHS implementation across LATAM?

The implementation of the GHS is one of the main trends for chemicals management in Latin America. Classification by the GHS was mandated in Argentina on 1 June 2017 and in Ecuador on 1 January 2017. In Brazil, all substances and mixtures must be classified, packed and labelled in accordance with NRB 14725-2 and three respectively and SDS authored using NBR 14725-4:2014 based in the GHS. In Costa Rica, as of 1 May 2018, the classification, labeling, and safety date sheets of chemicals will have to comply with the GHS 6th revised edition in Spanish.

Adoption of the GHS in Mexico is still voluntary, but after 9 October 2018, it will be mandated. Colombia started working on the development of a national GHS implementation strategy since 2013. In October 2017, a proposal has been submitted to adopt for the first time, the 6th revised edition of the GHS in Colombia. The draft Decree is expected to be adopted in the following months. Since June 2014, the voluntary Standard that regulates order and content of SDSs in Venezuela is based in the 5th version of the GHS.

Legal provisions established for SDSs in Chile by Chilean Standard NCh 2245:2015 are equivalent to those in the GHS. However, some of the information required in each section is not the same as that required by the GHS.

I have heard that environmental laws are under threat in Brazil – could you shed some light on this?

We will respond to this question from a couple of different angles.

Government backtracks on mining in the Amazon

It is true that there have been moves to try to remove the protected status of certain areas of the Amazon rainforest, which has caused great concern for the environment.

Specifically, on 23 August 2017 the government published Decree 9.142/2017 abolishing the National Reserve of Copper and Associates (Reserva Natural de Cobre e seus Associados - RENCA), a vast area covering 46,450 square kilometers (km2) located in the Amazon region (in the States of Pará and Amapá). This first Decree was repealed and replaced by a revised regulation five days later following widespread criticism.

The revised regulation, Decree 9.147/2017, maintained the abolition of the RENCA but reassured that mining in conservation or indigenous areas would not be allowed.

The RENCA includes environmental conservation units and indigenous areas consisting in roughly 70 percent of the reserve, which according to the government would not be affected by RENCA's extinction. This means that about 30 percent of the region could potentially be opened up to commercial mining.

However, following national and international pressure, and a preliminary decision by a Brazilian Federal Court to block the effects of the decrees issued by the government abolishing the RENCA, the government finally revoked Decree 9.147/2017 on 26 October 2017.

It is not the first time this year public opinion and environmental organizations are able to prevent measures affecting the Amazon biome. In June, President Michel Temer vetoed two controversial measures passed through the Brazilian Congress that could have led to the cutback of around 600 thousand hectares of protected areas in the Amazon forest.

Brazilian environmental setbacks?

José Sarney Filho, Brazil’s Minister of the Environment, affirmed in the Conference of the Parties (COP 23, taking place on 6-17 November 2017 in Bonn, Germany) that contrary to what has been reported inside and outside the country, there have been no setbacks regarding environmental protection in Brazil.

However, there is evidence to the contrary. The unprecedented power that the so-called "rural caucus" (representatives of rural landowners, such as agribusiness owners) have gained within the Brazilian legislature has caused and is causing historical setbacks in social and environmental protection in Brazil.

Some of the setbacks include:

  • The Law of “Grilagem” - Law 13.465/2017 that amnesties invasions of public land made between 2004 and 2011 of up to 2,500 hectares in rural and urban areas. The measure, besides from promoting social injustice, encourages the advancement of occupations over forest areas, increasing deforestation in the Amazon forest. Law 13.465/2017 was adopted on 8 September 2017.
  • PS: “Grilagem” (in Portuguese) is the act by which landowners illegally take possession of public lands.
  • Law proposal 8.107/2017 (the so called “PL do Jamanxim”), under which the Brazilian government proposes to re-assign 350,000 hectares of the National Forest of Jamanxim, located in the State of Para, for the creation of an Environmental Protection Area (APA). Although it is also considered a conservation area under Brazilian law, the APA status is more relaxed and does allow human occupation and economic activities (through the creation of private areas). The Law Proposal is still under analysis in the house of representatives of the Congress.
  • “O Marco Temporal” is a debate running in the Federal Supreme Court, under which the Brazilian government requires proof of the occupation of the land by the natives (Indians) on the date of the promulgation of the Federal Constitution, in October 1988. Therefore, it aims at recognizing as indigenous only the lands occupied by the Indians in 1988, which can affect hundreds of lands inhabited by Indians. The issue is still under debate in the Federal Supreme Court.

Separately, the country’s commitment under the Paris Agreement seems to be under threat, as studies have shown that deforestation in Brazil in 2017 was 6,624 km² in the Amazon. This is 70 percent higher than what is determined by the National Climate Law (Law 12.187 of 29 December 2009), under which Brazil should reach 3,900 km² by 2020. In addition, the System for Estimating Greenhouse Gas Emissions (Sistema de Estimativa de Emissões de Gases de Efeito Estufa - SEEG), reported that emissions in Brazil increased by nine percent in 2016.

Therefore, there is enough evidence that the Brazilian government is taking action to roll back laws protecting the environment. The current government seems to be vulnerable and easily controlled by the pro-agribusiness lawmakers, which is leading to a regression of protectionist environmental laws.

What is currently the biggest focus of regulators in terms of Occupational Safety & Health in LATAM?

The biggest focus for the moment is towards preventing psycho-social risks and work violence. For instance, in Mexico, Colombia, and Argentina there are proposals pending approval. The proposals aim at promoting a favorable organizational environment by implementing measures to prevent and to mitigate psycho-social risks.

Another, important topic in LATAM is breastfeeding breaks and breastfeeding rooms. Argentina and Mexico have put forward proposals to extend the breastfeeding break from 30 minutes to one hour each (two breaks per day). Uruguay has issued a law requiring employers with 20 or more female employees or with 50 or more employees (regardless of their gender) to install a breastfeeding room. Employers have until June 2018 to comply with this requirement. Colombia also adopted legislation requiring companies having more than 50 women employees or a capital equal to or larger than the equivalent of 1.500 minimum monthly salaries (about 1 billion Colombian pesos which is approximately USD $360,000) to have breastfeeding rooms. Depending on the total number of employees those companies must comply with this obligation by 2019 or 2022.

In Brazil, the Consolidation of Labor Laws (CLT) was amended in July 2017. According to it, pregnant employees are exempted from work only if the work is defined as an unhealthy activity on the highest level. And breastfeeding employees are exempted from unhealthy activities, at any level, only upon the presentation of a medical certificate. Before the amendment, both pregnant and breastfeeding employees had to be kept away from any unhealthy activities, operations, and places regardless of their level or degree of unhealthiness.

 Are there any REACH-like regulations in force or under development in LATAM?

Regarding the regulation of the management of chemical substances (REACH-like Regulations) in Latin-America, there are not a remarkable number of initiatives in place yet. As of 2017, only Colombia and Brazil have started rising the topic.

In Colombia, there is currently a proposal to regulate the management of chemical substances for industrial use (see the previous question about GHS). The proposal would establish a system like REACH since manufacturers and importers would have to register chemical substances and provide an assessment of their hazards. The proposal aims at establishing a system composed of three elements: 1.) a Registry of Chemical Substances for Industrial Use, 2.) self-risk assessment for human health and the environment depending on the specific use of the substance, and 3.) programs for the management of risks to human health and the environment.

In Brazil, on 30 June 2016, the National Commission on Chemical Safety (CONASQ) conducted a public consultation on a draft law proposal on the registration, evaluation and control of industrial chemicals. The proposal would establish a set of specific requirements for producers and importers of industrial chemicals. For instance, producers and importers of industrial chemicals in an amount equal to or greater than one ton per year would be required to provide some information to the National Register of Industrial Chemicals (Cadastro Nacional de Substâncias Químicas Industriais), such as the identification of the producer or importer; the CAS number of the industrial chemical and, where applicable, its structural formula, the track of the quantity produced or imported per year, the uses of it, and its hazard classification according to the GHS.

Currently, the CONASQ is evaluating and providing public justifications for the acceptance or rejection of all the responses submitted during the public consultation. Only after this process, it will approve the final text of an amended draft law.

Have there been any recent enforcement examples of note across LATAM?

In recent years, enforcement of EHS laws in Latin American countries have strengthened. Compliance inspections have increased leading to companies being sanctioned for not complying with the law (e.g. through fines and temporal or permanent closure of sites). Below there are just some recent enforcement examples of note across the region:

Brazil

At the end of 2015, a mining dam collapsed causing one of the biggest environmental disasters in the country’s history. A tidal wave of about 40 million cubic meters of mining waste washed across the country side, killing 19 people, destroying villages, affecting the aquatic life, and leaving thousands of people with undrinkable water as the mining waste flowed down the River Doce to the sea more than 600 km away. It is alleged that there were signs that the dam was unsafe for several years before its collapse.

Brazilian federal prosecutors in May last year served the joint partners in the iron ore mine with a BRL 155 billion (about USD $47 billion) claim to pay for the social, environmental, and economic costs of cleaning up the country’s worst environmental disaster. In addition to that, various agreements have been made to pay damages to affected people by the disaster. For instance, in March 2017, the mining company and a foundation signed an agreement to speed up the payment for compensation for those who suffer from lack of access to drinkable water (BRL 1,000 (approximately USD $308) for each family member, with an increase of 10 percent for children younger than 12 years, old people and people in vulnerable conditions), as well as to provide financial assistance to fisherman affected by the collapse.

In August 2017, the Brazilian Institute for the Environment and Renewable Natural Resources (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis - IBAMA) also rejected the mining company’s appeal related to three administrative fines totaling BRL 150 million. The company can no longer file administrative appeals with the IBAMA and will have to pay these fines. Further information is available in Portuguese at http://www.ibama.gov.br/noticias/422-2017/1164-ibama-nega-recursos-da-samarco 

Colombia

In 2016, the Secretary of Environment of Bogota, conducted a campaign of strict environmental enforcement. As a result, eight companies were sanctioned with fines totaling COP 8.639 billion (approximately USD $2,944,343) for identified environmental violations. The biggest sanction was of COP 4.474 billion (approximately USD $1,524,828) imposed on a company that contaminated soil and water resources due to fuel leakage.

In 2013, the Ministry of Environment of Colombia imposed an unprecedented fine on a coal company of COP 7 billion (approximately USD $2,325,000) due to the ecological disaster caused on coastal areas following the discharging of coal into the sea.

Chile

A mining company was sanctioned, in 2013, by the Superintendent of Environment due to serious breaches of the environmental license, granted in 2006. Among others, the company failed to build the system for the management of water (acidic and normal water) that should had been put in place before mining works started. The company was fined with 16,000 annual tax units (approximately USD $16 million). Additionally, the open pit mining construction activities are suspended until the company has built the respective system for water management.

Dominican Republic

In the Dominican Republic two companies were fined at the beginning of 2017 for discharging wastewater without complying with the national environmental law. A company dedicated to dyeing and washing clothing was fined with RD 3.5 million (approximately USD $73,897.50) and the closure of one part of the facility because it was discharging water without any treatment. The other company, a distillery was fined with RD 1,965,120.00 (approximately USD $41,490.70) for discharging wastewater without complying with emission limits.

Mexico

In 2014, the Secretary of Energy (SENER) and the Secretary of Labor and Social Prevention (STPS) fined a gas company MXN 52 million and MXN 2 million (Approx. USD $2,824,637) respectively. The sanctions were imposed due to non-compliance with health and safety norms as well as norms concerning pressure vessels and steam generators. This lack of compliance with various norms led to an explosion in 2013 that caused the death of seven employees.