CHILE Law and Practice Contributed by: Pablo Méndez, Christian Rojas, Pablo Neupert and Vicente Huidobro, TM Abogados
• SMA regulations for monitoring systems in salmon farming centres (Exempt Resolution No 2,662/2021); and • SMA regulations for monitoring of water in tailings storage facilities (Exempt Resolution No 31/2022). In addition, there are some sectoral requirements established in special laws, such as: • monitoring requirements for sanitation companies to measure the quality of their effluents, enforced by the Superintendency of Sanitation Services (SISS) (Law No 18,902, Article 11B); or • monitoring requirements for pollutants in liquid waste discharges into water bodies, under S.D. No 90/2000, MINSEGPRESS. Consequences of Non-Disclosure or Incomplete Disclosure Failure to disclose environmental information – or providing incomplete or misleading data – has both administrative and market consequences. Before the SMA, it constitutes a serious infringement (Article 36 letter b, Law No 20,417), leading to fines up to 10,000 UTA ( Unidades Tributarias Anuales ), temporary clo- sure, or even revocation of authorisation. Additionally, civil liability may arise if investors or third parties suffer damages due to concealment or false disclosure, par- ticularly in M&A contexts where environmental liabili- ties are not properly revealed. See 17.2 Disclosure of Environmental Information . 16.2 Public Environmental Information Obtaining Environmental Information The public’s right to obtain environmental information from public authorities in Chile is grounded in two overlapping legal regimes, in addition to the Escazú Agreement. • Law No 20,285 (2008), sobre Acceso a la Infor- mación Pública (the general “Transparency Law”). Articles 5–10 and 11–14 provide the procedural mechanism: any person, without need to justify a special interest, may request access to envi- ronmental information from a public authority. Requests are made via the Transparency Portal (www.portaltransparencia.cl) or directly before the
relevant agency (ie, SEA, SMA, DGA, SEREMI, CONAF, etc). • Law No 19,300 (1994), sobre Bases Generales del Medio Ambiente (the environmental framework statute). Article 31 bis of this statute establishes a specific right of access to environmental informa- tion held by the administration , reinforcing that such information is public unless expressly except- ed. “Environmental information” is defined broadly in Arti- cle 31 bis of Law 19,300 and in the Escazú Agreement (Article 2). It means “any information that is written, visual, audio, and electronic, or recorded in any other format, regarding the environment and its elements and natural resources, including information related to environmental risks, and any possible adverse impacts affecting or likely to affect the environment and health, as well as to environmental protection and management”. Typical examples include: • environmental permits (RCAs); • environmental impact studies and statements (EIA/ DIAs); • sanctioning resolutions issued by the SMA; • monitoring reports; • emission data; • contingency plans; • inspection reports; and • any other records linked to environmental impact or risk. Chile’s SEA, SMA and the Ministry of the Environment maintain public databases (eg, e-seia.cl, snifa.sma. gob.cl, retc.mma.gob.cl) that provide open access to much of this information without need for formal requests. Definition of Public Authorities and Bodies for Environmental Transparency Purposes For these purposes, “public authority” is defined broadly. Under Articles 1 and 2 of Law No 20,285, it covers: • all organs of the state administration, including ministries, regional governments, municipalities and decentralised public services (ie, SMA, SEA, CONAF, SERNAGEOMIN, etc);
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