All commercial activities related to hydrocarbon production are obliged by law to comply
with the environmental protection legislation. All constitutional, statutory and regulatory provisions concerning the environment apply in this area, as do other legal texts such as international treaties and any contractual provisions on the environment contained in the agreements between PDVSA subsidiaries and private investors (Clause 22 of the Congressional Resolution on the conditions for association agreements under profit-sharing schemes).|
The Law has been developed in three areas: the first concerns environmental planning; the second, defines violations and penalties; and the third creates the national environmental protection agencies.
Among the guiding principles of the Law are: the principle of sustainable development as a means of achieving a balance between the right to develop and the preservation of the environment for future generations; conservation, protection and improvement of the environment as a public utility. The Law also expressly recognizes the principles contained in international instruments such as the Stockholm Declaration.
Lastly, the Law authorizes the Government to oversee and control activities liable to degrade the environment which directly or indirectly pollute the air, water, sea bed, soil, subsoil, etc. In the case of energy, mining and hydrocarbon production, this control is exercised by the Ministry of Energy and Mines.
A company is guilty of an environmental offense when the act is committed by decision of its executive bodies. Legal action in relation to environmental offenses are heard by the criminal courts.
Among the main offenses established in the Law are:
The penalties established in the Law are prison, confinement considers as a public utility, fines and community work. This latter penalty can be imposed instead of confinement when the judge considers it appropriate.
Accessory penalties for natural persons include: temporary disqualification from public office or practicing a profession, publication of the sentence in the national press, obligation to destroy the substances or materials liable to damage the environment or public health, a ban on contracting with the public administration for three years, and suspension of permits.
For legal entities, penalties include fines, a ban on the pollution-causing activity for three months to three years, and in cases of serious damage closure of the establishment. Other obligations are publication of the court decision in the national press, destruction of the substances or materials liable to cause damage to the environment or to public health, ban on contracting with the Dublic administration for three years, and suspension of permits.
With respect to the statute of limitations, offenses punishable by prison terms of over three years are time-barred five years after the offense. Offenses subject to prison terms of less than three years or confinement of over six months are barred after three years. In the case of confinement for less than six months, offenses are barred after one year. Finally, civil actions are barred after 10 years.
Sanctions include confinement, imprisonment and fines, depending on the seriousness of the offense.
Soils must be used in line with their specific agrological capacity. In this respect the Government is responsible for the classification of land, based on slope, degree of erosion, fertility of the subsoil and climatic factors. The use of the soil must always maintain its physical integrity
Provisions include a list of dangerous wastes and their characteristics, which contains some materials used in the production of hydrocarbons:
It also establishes a series of obligations for persons and companies that generate dangerous waste, among which are:
Finally, imports of dangerous waste are prohibited and exports of such waste are only permitted to countries that allow entry.
All natural persons or public or private legal entities, interested in developing programs and projects involving the occupation of land, must give prior notice to the Ministry of the Environment by submitting a Document of Intent, which specifies the actions liable to produce an environmental impact.
Specifically, companies involved in the exploration and production of hydrocarbons are required to submit an environmental impact study for the following activities:
3.4.7 Resolution Nº 57 of July 4, 1996 - Documentation for Environmental Evaluation of Mining Programs and Projects and for Exploration and Production of HydrocarbonsThis Resolution lists the documentation necessary for the environmental evaluation of mining and hydrocarbon projects, in accordance with Decree Nº 1.257 mentioned above. Under Article 16, an environmental questionnaire must be completed by companies seeking authorization for the exploration and production of hydrocarbons, or the occupation of the land for mining.
The requirements for permission to use renewable natural resources in the exploration and production phase of hydrocarbons, which must be included in the environmental evaluation questionnaires, are as follows:
The Resolution also lists the documentation required for processing the authorization for use of renewable natural resources during the seismic prospecting phase, including:
3.4.8 Decree Nº 883 of December 18, 1995 - Classification and Quality Control for Bodies of Water and Liquid Discharges or EffluentsThis decree regulates the quality control in bodies of water, defined in terms of their present and potential use. Parameters are fixed for liquid discharges and the preparation and execution of quality control plans for each body of water, following the priorities established for the country's hydrographic basins.
In accordance with the United Nations Uniform International Industrial Classification, this Decree regulates the following activities in the oil and hydrocarbons industry:
For the monitoring and control of pollution, a register of activities liable to degrade the environment must be kept. Natural persons and legal entities planning to initiate any of these activities must be recorded in the register, (unless previously registered in the register of activities liable to degrade the environment, kept by the Ministry of the Environment pursuant to Decree 1270).
3.4.9 Decree Nº 1.400 - Regulation and Control of the Use of Water Resources and Hydrographic BasinsThis decree, in force since June 10, 1996, regulates the conservation and rational use of water resources, with the aim of balancing supply with current demand, without compromising the possibility of satisfying the needs of future generations and improving the quality of life of the population.
The Ministry of the Environment is responsible for planning, granting of concessions and authorizations, and other functions related to the use and conservation of water resources.
Any use of waters in the public domain must be under concession, which may be either for payment or free of charge, depending on the circumstances. Such concessions are either awarded in a bidding process or directly by the Ministry of the Environment.
Any use of existing water must be registered with the regional offices of the Ministry.
It also establishes a double list of emission parameters for new activities already installed. This mechanism, commonly used in comparative legislation, is designed to promote progressive environmental control and avoid the import of waste technology from other countries.
The Decision applies to genetic resources and their products that originate in the member states. It excludes genetic and biological resources used by indigenous, Afro-American and local communities in the member states, based on their customary practices.
All procedures for access to genetic resources require the presentation, admission, publication and approval of an application and an agreement with the respective national authority.