CHILE Law and Practice Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
However, as noted in 12.1 Key Laws Governing Con- taminated Land , Chile lacks a specific law regulat- ing environmental remediation or the management of contaminated sites, unlike other countries that have more developed regulatory frameworks and detailed procedures for environmental restoration and deter- mining the liability of those responsible for the dam- age. 12.3 Determining Liability As mentioned in 12.1 Key Laws Governing Con- taminated Land , in the absence of a specific law regulating the management of contaminated soil or establishing criteria for the attribution of liability, the determination of liability is governed by the “polluter pays” principle and by the rules of the Civil Code on non-contractual liability, as applicable. Consequently, the general rule is that each offender is liable only for the damage directly attributable to them. In practice, both the administrative authority and the courts assess the causal relationship between each party’s actions and the resulting contamination, and may allocate differentiated responsibilities accord- ing to the degree and magnitude of participation in the damage. The SMA generally identifies individual offenders in its sanctioning procedures, even when multiple parties are involved in the same incident, to determine the specific contribution of each. Under civil law, joint and several liability applies only in cases where two or more parties have jointly partici- pated in the same wrongful act, whether negligently or wilfully (Article 2317 of the Civil Code). In such cir- cumstances, each co-offender may be pursued for the entire amount of the damage caused, with the party who pays retaining the right to seek reimbursement from the others in proportion to their participation in the act. This interpretation has been confirmed by several Chilean judicial decisions, which has clarified that joint and several liability in tort arises only when the same wrongful conduct results from the concur- rent actions of multiple participants. This is also clear from Law No 19,300, which estab- lishes an express case of joint and several liability by providing that municipalities shall be jointly and sev- erally liable for damages when, at the request of a
person, they fail to bring the environmental remedia- tion action that the law empowers them to exercise (Article 54). 12.4 Proceedings Against Polluters As mentioned in 5.1 Key Types of Liability , Law No 19,300 establishes a special judicial action for environ- mental damage remediation, which is brought before the environmental courts. According to Article 54 of this law, locus standi is restricted to three categories: • natural or legal persons who have directly suffered the damage; • municipalities, with respect to events that occurred within their territories; and • the state, represented by the State Defence Coun- cil ( Consejo de Defensa del Estado ). By contrast, when seeking compensation for dam- ages through civil proceedings, standing is governed by the general rules of non-contractual liability under the Civil Code, applicable to any person who has suf- fered compensable damage. 12.5 Investigating Environmental Accidents In Chile, environmental inspection is primarily the responsibility of the SMA, in accordance with its Organic Law (Law No 20,417). This entity supervis- es compliance with regulations, RCA, prevention or decontamination plans, and other environmental obli- gations. The SMA may initiate inspections on its own initiative, at the request of a sectoral entity, or based on citizen complaints. The SMA oversight powers may take various forms, such as: • on-site inspections; • co-ordination with sectoral agencies (such as the Dirección General de Aguas (water), Seremi de Salud (health), Servicio Nacional de Geología y Minería (mining), among others). • requests for information; • remote monitoring; and When the SMA finds non-compliance, it may initiate a sanctioning procedure, under Title III of its Organic Law.
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