CHILE Law and Practice Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
Moreover, environmental liability towards the state is personal and non-transferable. According to Article 51 of Law No 19,300 on the General Environmental Framework, any person who, by negligence or intent, causes environmental damage is directly liable before the competent authority and courts. This means that, although the parties may agree between themselves who will bear the costs of a potential sanction or remediation, such an agree- ment does not release the offender from their legal responsibility before the Superintendence of the Envi- ronment or the environmental courts. In other words, the existence of a contractual clause does not alter the application of the environmental liability regime established by law. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land Chile does not have a specific law or national quality standards establishing permissible levels of soil con- tamination or a comprehensive regime regulating the remediation of contaminated soils that exceed those standards. The applicable framework is based mainly on Law No 19,300, which establishes the obligation to repair envi- ronmental damage, and on the Environmental Impact Assessment System (SEIA), through which remedia- tion projects are evaluated and authorised. Article 10, paragraph (o) of that law expressly includes environ- mental remediation projects, while Article 3 (o.11) of the SEIA Regulations (D.S. No 40/2012) stipulates that projects for the remediation or recovery of areas con- taining contaminants covering an area of 10,000 m² or more must be submitted to the SEIA and undergo assessment by the environmental authority. At the technical and public policy level, in 2012 the Ministry of the Environment published the Meth- odological Guide for the Management of Soils with Potential Contaminants (SPC), which establishes the main procedures for identifying, characterising and managing contaminated sites. This instrument com- plements Exempt Resolution No 1,690/2012, which
approved the official methodology for the identifica- tion and preliminary assessment of abandoned soils with contaminants. Since 2009, the Ministry has also been developing a National Policy for the Management of Sites with Con- taminants, aimed at co-ordinating public and private environmental recovery actions, as well as maintaining a National Registry of Sites with Contaminants, which is an official record of contaminated or potentially risky sites, used to prioritise management and remediation measures according to their level of environmental risk. 12.2 Clearing Contaminated Land Responsibility for Clearing up Contaminated Land In Chile, the “polluter pays” principle governs envi- ronmental liability, as established in Law No 19,300 (Article 51) and reinforced by complementary regula- tions such as Law No 20,920 on Extended Producer Responsibility and Recycling Promotion (Article 2 (a)). Under this principle, any natural or legal person who causes environmental damage is obliged to repair the affected environment and, where applicable, compen- sate for the damage caused. In practice, compliance with this obligation may involve the adoption of environmental repair or reme- diation measures, which must be submitted to the environmental authority or, in certain cases, submit- ted to the Environmental Impact Assessment Sys- tem (SEIA) for review and approval. For instance, in certain cases decided by the environmental courts, the implementation of remediation plans has been required either as a condition for damage repair or as a measure ordered by the tribunal (see, eg, First Environmental Court D-17-2022 and D-14-2024). Delegation of the Responsibility The operator or project owner may hire third parties to conduct studies or carry out remediation works; how- ever, this does not exempt them from their responsibil- ity to the environmental authority. Private agreements of this nature do not release the responsible party from administrative, civil or criminal liability, nor from their primary obligation to restore the damaged environ- ment.
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