BRAZILIAN FEDERAL ENVIRONMENTAL PROTECTION AGENCY (IBAMA) REGULATES ENVIRONMENTAL OBLIGATIONS DURING THE COVID-19 PANDEMIC

Brazilian Federal Environmental Protection Agency (IBAMA) has taken some measures towards procedural and administrative deadlines in the context of the COVID-19 pandemic.

Sanctioning procedures: The deadlines for IBAMA’s administrative procedures are suspended for an undetermined period, beginning on March 16, 2020 (Ordinance No. 826/2020), covering both administrative defenses and appeals. All environmental conciliation hearings are also suspended.

Environmental licensing and management procedures: IBAMA published a note on its official website containing guidelines on compliance with environmental obligations, which applies retroactively to March 12, 2020. In general, IBAMA understands that environmental obligations must be maintained. Please find below a summary of the rules:

(i) Companies must continue to comply with legal obligations within environmental licensing procedures to the extent possible;

(ii) Environmental measures immediately and directly related to adequate levels of environmental quality must be maintained. Such measures refer to: (a) e treatment; of effluents, gases or hazardous wastes; (b) soil stability measures; (c) environmental security and accident risk control measures; (d) immediate maintenance of environmental quality and public welfare in the areas directly affected by the impacts; (e) measures to protect the environment (physical, biotic and socioeconomic elements) that, without such measure, can suffer immediate, direct and permanent damage; (f) measures of prompt implementation of emergence plans and others alike, in case of accidents.

(iii) If compliance with any environmental measure or obligation is not operationally possible, the company must act towards reducing the effects and duration of such non-conformity, in addition to: (a) precisely identify the non-complied measure and the dates in which non-conformities occurred; (b) assessing the cause of such non-conformity in its relation with the COVID-19 pandemic, and the actions performed in response to non-conformities and; (c) register both fact and efforts made towards reducing its effects and seeking to solve the issue in the earliest opportunity.

In case of above-mentioned item (iii), companies must seek return to the normal situation as early as possible, besides registering and sending IBAMA information about the facts and the efforts made into mitigating the non-conformity. IBAMA understands that such circumstances will be taken into account before the imposition of any administrative penalty, given the exceptionality of the present moment.

Finally, IBAMA reinforces that compliance with measures of monitoring and impact reduction that are not directly related to prevention and reduction of environmental impacts must be evaluated and adjusted if necessary, based on the guideline to not interrupt the obligations.