The Environmental Company of the State of São Paulo (Companhia Ambiental do Estado de São Paulo or “Cetesb”) has already been demanding the payment of the charge for the issuance of technical advice on intervention plans for the reuse of contaminated areas. The charge starts at 750 São Paulo State Fiscal Units (UFESPs), which is currently equivalent to R$ 18,802.50. Such amount must be added to the result of a formula that involves the factor of complexity of the sources of pollution provided for in State Decree No. 8.468/1976, and the total area of ​​the undertaking.

For other requests for technical opinions, a charge of 70 UFESPs is set, which is currently equivalent to R$ 1,754.90. However, Cetesb has already submitted a proposal for revision of these amounts to the Governor of the State, which is still under review.

The new required amounts are the result of the modifications brought in by Board of Officers Decision No. 038/2017/C, published on February 10, 2017, which updated the procedures and guidelines for the management of contaminated areas within its competence. The new regulation repeals Board of Officers Decision No. 103/2007/C /E, published almost 10 years ago, but validated the actions related to the stages of management of contaminated areas that were still in force under the old regulation.

Adaptation of the procedures adopted by Cetesb had been expected since State Law No. 13,577/2009 and State Decree No. 59.263/2013 entered into force and currently govern the management of contaminated areas in the State.

Under the new regulation, Cetesb has transferred greater responsibility and autonomy to legal officers and consultants conducting the management of contaminated areas. In this sense, the technical opinions that were previously issued by the body for each new update in the process, which contemplated a detailed analysis of the procedures adopted, in addition to approvals and detailed recommendations, were replaced by simpler procedures of communication that were limited to the information of approval or disapproval of the measures presented. In case of non-approval, the response must be accompanied by a fine notice detailing all the non-compliances that led to the application of the penalty in order to allow the defendant to present an administrative defense or correct the non-compliances.

Requests for technical opinions became mandatory only at specific stages of the process, such as in the approval stage for an Intervention Plan for Reuse of Contaminated Areas or a Deactivation Plan.

Technical opinions may be requested by those responsible at other times in the process, however, in all cases, the request is subject to the payment of charges. In addition, as a result of the request for an opinion, if inconsistencies in the management of the contaminated area are identified, Cetesb's guideline is to fine the petitioner, which should also discourage the practice of consulting the body for each step of the procedure adopted, thereby incentivizing the hiring of additional consultants to give a second opinions on the technical measures taken. Cetesb’s board stated that it is in the process of publishing a technical instruction to regulate the administrative procedures for the application of administrative sanctions.

Board of Officers Decision No. 038/2017/C is divided into 3 annexes: (i) Procedure for the Protection of Soil and Groundwater Quality; (ii) Procedure for the Management of Contaminated Areas, which was already included in the previous board decision; and (iii) Guidelines for the Management of Contaminated Areas in the Scope of Environmental Licensing. The main aspects of each of these annexes are briefly explained below.

The first annex establishes that certain potentially polluting activities should implement a Preventive Monitoring Program for Soil and Groundwater Quality. This program must be submitted to Cetesb on the occasion of the application for the installation license or renewal of the operating license.

With regard to the second annex, Procedure for the Management of Contaminated Areas, that document brings in a series of modifications and a greater degree of detail when compared to the content of Board of Officers Decision No. 103/2007/C/E. According to Cetesb, this greater detail in the procedures should substantially reduce doubts on the part of technicians on how to conduct the processes of management of contaminated areas.

The Guidelines for the Management of Contaminated Areas in the Scope of Environmental Licensing (third annex) establish that the licensing of enterprises in suspected or potential areas of contamination should be preceded by a preliminary assessment and confirmatory investigation to be submitted to Cetesb. In turn, the concession of an installation license for expansion of activities located in areas with suspected or confirmed contamination is conditioned on compliance with the requirements established by Cetesb.

Also with regard to environmental licensing, the new board decision also established specific procedures for the management of contaminated areas in linear undertakings, such as highways, railroad transportation, pipelines in general, transmission lines, etc. In such cases, the environmental license applicant will be responsible for identifying and rehabilitating contaminated areas found in the course of the undertaking. Authorization for starting construction works and the issuance of the respective environmental licenses may be conditioned on meeting requirements determined by Cetesb.

In addition, in line with the changes promoted in the regulations related to contaminated areas, the State Secretariat for the Environment of São Paulo (SMA) has also issued two resolutions on the subject.

Resolution No. 10, of February 10, 2017, provides a list of potentially contaminating activities, which includes activities related to the chemical, textile, and oil sectors. Pursuant to Board of Officers Decision No. 038/2017/C, total or partial decommissioning and vacating of undertaking where these types of activities were carried out should be preceded by prior communication with Cetesb. In addition, conducting new activities in these areas should be preceded by a preliminary assessment and confirmatory investigation.

In turn, SMA Resolution No. 11, also of February 10, 2017, established the regions identified and delimited as a priority for the purpose of identifying contaminated areas. Currently, all four priority regions are located in the City of São Paulo. They are: Priority Region 1 - Barra Funda; Priority Region 2 - Mooca; Priority Region 3 - Chácara Santo Antônio; and Priority Region 4 - Jurubatuba. In these regions, active enterprises, if they are classified as potentially contaminating activities must carry out preliminary assessments and confirmatory investigations within 180 days from the notice by Cetesb. According to the Agency, this notice began in June through the call of 300 companies.