Environmental Law 2022 Comparisons

The Chilean Constitution (Article 19 No 8) sets forth the right to live in an environment that is free of pollution, and establishes that it is the State’s duty to ensure both the preservation of nature and that the environment is not negatively affected.

Law No 19,300

This mandate is further detailed in Law No 19,300 on General Bases of the Environment, which outlines the main aspects of several mechanisms to protect the environment, such as:

• the Environmental Impact Assessment System (Sistema de Evaluación de Impacto Ambiental – SEIA):
• the strategic environmental assessment;
• environmental audits; and
• environmental responsibility.

It also details the functions, organisation and other aspects of the Ministry of the Environment (Ministerio del Medio Ambiente – MMA) and the Environmental Assessment Service (Servicio de Evaluación Ambiental – SEA).

The key principles of environmental law in Chile are also found in Law No 19,300, including the preventative principle, the participation principle and the efficiency principle.

S.D. No 40/2012

The Regulations of the Environmental Impact Assessment System (S.D. No 40/2012) detail the functioning of the SEIA. Any project or activity listed in Article 10 of Law No 19,300 must be assessed through the SEIA in order to obtain an environmental licence (Resolución de Calificación Ambiental – RCA). Within the system, several public agencies comment on projects submitted and are able to impose conditions on the operation of those projects, within the sphere of their respective competencies. The project must then be carried out in accordance with the conditions established in its permit.

Law No 20,417

The Organic Law of the Superintendence of the Environment (Superintendencia del Medio Ambiente – SMA) (Law No 20,417) provides the regulatory framework for that institution and its main functions, such as environmental inspections, punitive procedures and incentives for compliance.

Law No 20,600

Law No 20,600 creates the Environmental Courts. There are currently three Environmental Courts in Chile, with jurisdiction in the northern (Antofagasta), central (Santiago) and southern (Valdivia) regions of the country. The Environmental Courts are collegiate bodies formed of two judges who are lawyers and one with a degree in the sciences. This range of expertise enables them to grasp the technical complexities of the cases brought before these courts.

It is important to note that, as this legislation is relatively new, the contours of the right to live in a pollution-free environment, and of environmental law in general, have been defined, in many respects, by jurisprudential criteria. Therefore, the Environmental Courts and the Supreme Court play an important role in the construction of environmental law application criteria, permanently shaping the limits and powers of each environmental agency when they regulate an issue or adjudicate over a dispute. They are not part of the executive branch; they are independent and impartial.

Other Regulations

Other important regulations are air emissions standards, and prevention and decontamination plans, which are established by the authorities for certain geographical areas depending on their pollution levels.

Ministry of the Environment

The main regulatory authority on environmental matters in Chile is the MMA, which collaborates with the President of the Republic in the design and application of policies, plans and programmes on environmental matters, and also in the protection and conservation of biological diversity and of renewable and water resources, promoting sustainable development, the integrity of environmental policy and its normative regulation.

The Council of Ministers for Sustainability is chaired by the Minister of the Environment and composed of the following Ministers:

• Agriculture;
• Finance;
• Health;
• Economy, Development and Tourism;
• Energy;
• Public Works;
• Housing and Urban Development;
• Transport and Telecommunications;
• Mining;
• Planning;

• Education; and
• Science, Technology, Knowledge and Innovation.

The main functions of this Council are to propose environmental public policy to the President of the Republic, and to give its opinion regarding environmental bills and administrative acts.

SEA

The SEA is another key regulatory authority, which is in charge of managing the SEIA and, when applicable, the process of citizen participation and the participation of indigenous communities in the SEIA in accordance with ILO Convention 169.

The SEA also manages a public information system about the projects that are assessed within the system, handling the environmental licences and authorisations and maintaining a public register of certified environmental consultants.

In terms of regulatory authority, the SEA is in charge of drafting guidelines that standardise and unify criteria for the application of environmental law. Also, the SEA interprets RCAs whenever there are doubts over the scope of their text or content.

SMA

The SMA is in charge of overseeing compliance with environmental licences, laws, regulations and other permits. It also has broad authority to inspect and request information from regulated parties, and is entitled to impose significant fines and penalties in cases of environmental breach. These penalties include fines of up to 10,000 Yearly Tax Units (approximately USD7.5 million), cancellation of the RCA, and the temporary or permanent closure of facilities.

As an independent and impartial body, the Environmental Courts (see 1.1 Regulatory Framework) are also key, as they oversee the application of the environmental laws and regulations by the SMA, SEA and MMA.

Biodiversity and Protected Areas Service

At the time of writing (November 2022), Chile still does not have a public agency devoted to managing protected areas. The Bill creating the Biodiversity and Protected Areas Service (Servicio de Biodiversidad y Áreas Protegidas – SBAP), which is an institution envisioned in the institutional reform of 2010, was passed in early 2022 after more than ten years of legislative discussion. However, it is still not in force as it has not yet been published in the Official Gazette.

Other

Other authorities with relevant attributions in environmental terms include:

• the General Water Directorate (Dirección General de Aguas – DGA);
• the Agricultural and Livestock Service (Servicio Agrícola y Ganadero – SAG);
• the National Corporation of Forestry (Corporación Nacional Forestal – Conaf);
• the National Service of Geology and Mining (Servicio Nacional de Geología y Minería – Sernageomin); and
• Regional Sanitary Agencies (Seremis de Salud regionales).

The enforcement of environmental licences, legal standards and regulations in Chile is carried out by the SMA, which has powers to investigate and prosecute administrative liability due to environmental damage or to breaches of RCAs and other applicable regulations.

In this context, the SMA may impose penalties, including fines of up to 10,000 Yearly Tax Units (approximately USD7.5 million), termination of the RCA, and the temporary or permanent closure of facilities.

The SMA also manages several reporting and disclosure systems, which operate on web-based platforms and are not publicly available, unless the SMA starts a punitive proceeding against a regulated entity.

The SMA is further charged with managing several incentives for compliance, such as compliance programmes and self-reporting measures. A compliance programme is a set of verifiable measures to return a project or activity to environmental compliance. If the programme is accepted by the SMA and is successfully fulfilled, it will result in the non-application of the fine that would otherwise have been imposed.

Self-reporting, on the other hand, consists of the informing, by a regulated party, of an environmental breach to the SMA. The result of the self-report is that, if the party successfully completes a compliance programme, the fine that would have been applicable will not be applied by the SMA.

Finally, any person or entity may file a complaint with the SMA denouncing a breach of environmental licences or regulations. The SMA may further investigate and, if it deems it appropriate, will pursue a punitive proceeding.

The SEIA is an administrative process managed by a specialised agency, the SEA, in which several public agencies with environmental competencies make observations within the scope of those competencies regarding the environmental impact(s) of the project or activity being assessed. As a result, these agencies can, with respect to the relevant statutes, impose measures and conditions on the project owner in order to mitigate these impacts.

Article 10 of Law No 19,300 lists the projects or activities that must be assessed under the SEIA, in order to obtain an RCA to operate. If the RCA approves the project assessed, it will also approve the environmental contents of applicable sectoral permits, which may not be rejected thereafter for environmental reasons.

DIA and EIA

A project can enter the SEIA by means of an environmental impact declaration (declaración de impacto ambiental – DIA) or an environmental impact study (estudio de impacto ambiental – EIA). In general, a project that must enter the SEIA will be assessed by a DIA, unless it generates or creates any of the impacts, effects or circumstances described in Article 11 of Law No 19,300. If the project generates any of these more significant impacts, it must be submitted through an EIA.

These impacts, effects or circumstances are significant adverse impacts and include:

• endangerment to public health;
• adverse effects on natural resources; and
• proximity to or location inside protected areas.

The administrative record of the environmental assessment is always publicly available, whether on the website of the SEIA or in the offices of the SEA. In exceptional circumstances, and at the request of the interested party, the authority may keep technical, financial or other background information under reserve so as to protect commercial or industrial confidentiality, or to protect patents or inventions linked to the assessed project or activity.

Community Input

Communities affected by a project under assessment may participate in the process, making observations to the project being assessed. Communities may always participate in an EIA, and in a DIA if:

• this is requested by ten directly affected persons, or by two or more citizen organisations with valid legal entity; or
• the project being assessed places an environmental burden on nearby communities.

Whenever an indigenous community is affected by a project assessed in the SEIA, the SEA will open a special participation stage, tailored to the requirements laid out by ILO Convention 169.

Observations and comments made by the community or by indigenous communities will be considered by the SEA as an integral part of the assessment process and must be addressed by the SEA, which must issue a well-founded response to every one of these comments. If the SEA fails to properly respond to any of the observations and comments made by the community, the person who made the observation may file an appeal to invalidate the RCA.

Amendments and Permits

RCA provisions are strictly binding throughout the life cycle of the project. Any significant amendments must be assessed within the SEIA. Where there is doubt over whether an amendment is significant, it is possible to ask the SEA its opinion through an appropriateness letter (consulta de pertinencia). The answer of the SEA will not have the status of a permit or an authorisation: it will merely be the opinion of the SEA as to, in light of the information provided, whether the project or amendment studied should enter the SEIA.

Within the SEIA, the project’s owner must also request specific permits for the project. These are sectoral permits that are granted by different sectoral authorities, but that have environmental contents. These are the environmental sectorial permits (permisos ambientales sectoriales – PAS), examples of which include:

• permits to cut down native forest;
• permits to build a tailings deposit; or
• permits to build large hydraulic works.

The environmental aspects of those permits are assessed and approved within the SEIA, and the RCA will duly note this circumstance. The project holder will then have to process these permits before the corresponding authority for sectoral approval, showing the RCA. Although the authority might reject the permit for technical reasons, it will not be allowed to reject the sectoral permit for environmental reasons.

Appeals Process

The project holder may appeal the RCA if it imposes onerous conditions or requirements, or if it rejects the project assessed. Appeals against an RCA shall be filed before the Executive Direction of the SEA if the challenged RCA was based on a DIA, or before the Council of Ministers if it was based on an EIA. In turn, these decisions may then be reviewed by the Environmental Court, whose decisions are subject to review by the Supreme Court via a cassation remedy, in applicable cases.

Members of the community that made observations of the project assessed but feel that their observations were not duly considered in the RCA may also appeal the RCA, following the same routes outlined above.

The key types of liability related to environmental damage or to the breach of environmental regulations are outlined below.

Administrative Liability

Administrative liability arises from a breach of environmental regulations or of the project RCA, or from the causation of environmental damage, regardless of any further environmental or civil liability that might arise. As stated in 2.1 Key Regulatory Authorities, the SMA can investigate any project or activity in order to verify environmental compliance. Note that the SMA usually considers any deviation from the RCA as a breach of its contents.

If a breach is detected, the SMA can file charges against the project owner, starting an administrative procedure that can conclude with penalties ranging from a written reprimand to fines of up to 10,000 Annual Tax Units (approximately USD7.5 million), including total or partial closure of the respective project and/or revocation of its RCA.

Alternatively, if environmental damage can be repaired, the SMA can order the project owner to execute a repair plan. If the damage cannot be repaired (such as damage to an archaeological site), then the SMA can impose a fine or other measures, such as the ones detailed above.

When indicted, a project holder can also submit a compliance programme to the SMA for its approval. Compliance programmes can be presented only once and cannot cover very serious violations.

This plan must be executed in its entirety, and any breach of the programme will result in the reopening of the penalty proceeding and the imposition of up to twice the original fine. If the plan is completely executed, and this is approved by the SMA, then the proceeding will be concluded and no other penalty will be imposed.

Penalties imposed by the SMA can be appealed to the Environmental Court.

Civil Liability

Civil liability arising from environmental damage is set forth in Articles 51 to 55 of Law No 19,300, according to which, anyone causing environmental damage, whether by malice or fault, must restore those damages. In addition, any breach of any administrative regulations will result in a presumption of liability. After the Environmental Court has established liability, the affected parties may seek redress as per general rules before the civil courts.

Criminal Liability

At the time of writing (November 2022) there are no general provisions setting forth a general regime for criminal liability linked to environmental violations. The Criminal Code and other statutes set forth few specific provisions of limited scope related to criminal offences of an environmental nature.

For example, the Criminal Code punishes, among other things, the malicious poisoning or infection of water intended for public consumption, as well as the withdrawal of water flows without water rights. Another environmental criminal offence is found in the General Law on Fishing, which punishes anyone who introduces, or orders the introduction of, any pollutants into any body of water causing damage without previous neutralisation.

Indeed, the Chilean criminal environmental liability system has been considered insufficient. There is currently a bill in Congress with the purpose of setting forth a broader scheme for criminal liability linked to environmental crimes and environmental damage; under current legislation, environmental damage is not a criminal offence.

In Chile there are no special regulations regarding the environmental liability of current landowners arising from historical incidents or past owners’ actions.

In accordance with Law No 19,300, there is a five-year statute of limitations to file an environmental damage claim, beginning from the definitive cessation of the event causing the damage.

Regarding civil damages, if the claim is filed directly before a civil court (without a ruling from an Environmental Court establishing the existence of environmental damage), the term to file the claim is the general term for torts (four years from the occurrence of the event).

Administrative Liability

Please see 4.1 Key Types of Liability. As previously discussed, the SMA can file charges against the project owner, who may:

• respond to the charges submitting its defences; or
• submit a compliance programme, in applicable cases.

Please note that these are either/or alternatives.

If a project owner decides to submit a defence, it can use all means admitted by law, which will be evaluated by the SMA pursuant to the logical and reasonable rules of evaluation and procedure (sana crítica).

Environmental Damages Liability

Chile operates a fault-based system in relation to liability due to environmental damage. Apart from specific cases where the law sets forth a strict liability scheme (the application of pesticides, hydrocarbon spillages into bodies of navigable waters, etc), fault expressed as malice or negligence is required to establish liability. The following requirements must also be met:

• an action causing environmental damage;
• significant damage or injury to the environment; and
• a causal connection between the action and the damage.

Environmental damage claims such as these must be filed with the Environmental Court by:

• the individual who suffered the damage;
• the municipality in whose territory the environmental damage happened; or
• the State.

In this case, the burden of proof lies with the plaintiff. Key defences include:

• denying a causal connection between the action and the damage;
• arguing against the significance of the damage; or
• proving there was no malice and that standards of due care were followed.

In order to give rise to environmental liability, the damage must be “significant”. It is accepted that any human activity will cause some sort of damage to the environment, so the damage must be significant in order to allow a claim for reparations from the person or entity that caused it. The law does not define the concept of “significance”, so the Environmental Courts and the Supreme Court have defined some criteria to establish the existence of significant damage on a case-by-case basis, which include:

• duration and entity of the damage;
• quality and quantity of natural resources affected;
• effects on the ecosystem; and
• capacity, and time required, for regeneration.

According to Chilean legislation, environmental damage can be caused by any person or legal entity, and the same can be said of breaches of environmental law.

There is a general provision related to corporate liability in Chilean Law No 18,046, on Stock Corporations, transferring the liability of the company to its administrators or representatives unless their lack of participation in, or their opposition to, the act constituting the infringement is proven. In other words, in a breach of environmental law, or in case of environmental damage, the administrators or legal representatives of a stock corporation will be liable unless it is proven that they did not participate or that they opposed the act constituting the violation.

However, this could change in the future, as there is currently a bill in Congress regarding the criminal liability of legal entities.

In Chile, shareholders or parent companies are not currently liable for breaches of environmental law. As stated in 6.1 Liability for Environmental Damage or Breaches of Environmental Law, the party liable before environmental authorities is the project owner. However, it should be noted that this could change in the future with the bill regarding the criminal liability of legal entities.

In some cases, however, financial entities have been held liable for environmental damage. In a 2013 ruling, the Supreme Court ordered Forestal León Ltda. and the Banco de Chile to jointly repair the environmental damage caused in the El Peñasco estate by the illegal cutting down and burning of native forest.

According to Chilean legislation, any person – whether a natural or a legal entity – wilfully or negligently causing environmental damage is liable both to restore the damaged environment and to compensate those affected by that damage.

Breaches of an RCA or of environmental law, prosecuted by the SMA, may result in fines of up to 10,000 Annual Tax Units (roughly USD7.5 million), as well as the closure or cancellation of that RCA.

For a stock corporation, liability can be transferred to its administrators or representatives unless their lack of participation in, or their opposition to, the act constituting the breach is proven.

In relation to obligations arising from a mine closure plan, Law No 20,551 provides that the mining company or the mining entrepreneur is responsible for compliance with the closure plan, whether that plan is executed directly or by a third party. If the requirements of the mine closure plan are infringed, the legal representatives of the mining company, and whoever is responsible for the breach, will be sanctioned with a fine ranging from 100 to 1,000 Monthly Tax Units (approximately USD64–64,000).

There is no regulation in Chile regarding insurance against environmental liability. However, insurance could be purchased to cover the civil damages related to this liability.

The party appearing as the project holder before the environmental authority is liable for breaches of environmental laws and regulations, or for environmental damage, according to Article 24 of Law No 19,300.

Therefore, financing or lending entities are not liable before the environmental authorities for a breach of environmental laws and regulations, nor in the case of environmental damage.

Even though lender protection is not regulated in Chile, and lenders will not be liable before the environmental authorities if they are not listed as the project owners before those environmental authorities, there are several steps that can be taken in order to protect their investments.

For example, lenders could protect themselves by conducting environmental law due diligence to investigate potential environmental liabilities, and by drafting contractual clauses limiting their liability in the case of an environmental offence or contingency.

Environmental liability arises from the generation of environmental damage. If environmental liability is established, it is possible to claim reparation for civil damages derived from the environmental ones.

This claim must be filed before a civil court, only after the Environmental Court has determined that environmental damage exists.

If the Environmental Court rules that there was no environmental damage, there could still be liability to compensate those civil damages caused, actionable as per the general rules of civil liability before civil courts.

Chilean legislation provides that compensation should cover only the damage caused according to the principle of “integral damage reparation” (ie, the claimant should be restored to the position they would have held if the damage had not occurred). Therefore, the courts cannot award exemplary or punitive damages.

There are no class or group actions in Chilean environmental law. The parties with standing to claim environmental damage are those directly affected (whether natural or legal entities), municipalities or the State.

In some cases, the Supreme Court has broadened the definition of standing, admitting a more relaxed evidential standard for parties to prove they have been “affected” in relation to the constitutional right to live in an environment free of pollution. However, this broader standing does not fall into the definition of a class or group action. The only class actions recognised in Chilean law can be found in consumer protection legislation.

As there are no class actions in Chile, there are no landmark cases to highlight.

The holder of an environmental licence is solely responsible for its fulfilment, and is the only liable party in the case of a breach of permits or regulations, or in the case of environmental damage. Because of this, the relevant environmental authority must be informed of any change in ownership of a project that has been environmentally approved.

Even though it is possible to transfer or apportion liability among the parties, these agreements are only binding among the parties, and not on the regulator. In other words, the party registered as the project owner before the authority is the only liable party, regardless of any private agreement to the contrary.

Chilean legislation does not provide for overall environmental insurance covering environmental damage or breaches of environmental legislation. There are, however, forms of private insurance that could cover such events, such as policies covering the costs of compensation to third parties or the costs derived from a clean-up operation. These are governed by the common rules applicable to insurance.

There is no special legal regime related to the remediation of contaminated land in Chile, which shall fall under the environmental damage regime.

If environmental damage is caused with negligence or intent, it will give rise to two different liabilities:

• the “environmental” liability to repair the damaged environment; and
• a civil torts liability, to indemnify those whose rights have been harmed by the environmental damage.

Usually, the SMA will pursue reparation, and then the government might pursue civil liability against the responsible parties.

Chile has been an active part of the international negotiations regarding climate change. As such, it has joined the United Nations Framework Convention on Climate Change (UNFCCC), the Kyoto Protocol and the 2015 Paris Agreement, among others. Chile also headed the 25th Conference of the Parties of the UNFCCC, which was held in Madrid.

As Chile is not a relevant emitter of greenhouse gases (GHG) at either the global or OECD scales, it has not been included in Annex 1 of the UNFCCC. However, over time Chile has been consistently increasing its GHG emissions, which may not cause substantive global effects but has a significant local impact.

The Framework Law for Climate Change, Law No 21,455, was published and entered into force in June 2022. This law establishes a legal framework to face the challenges presented by climate change, in order to achieve and maintain neutrality of GHG by 2050 in accordance with the commitments adopted at the 2015 Paris Agreement.

To achieve said mitigation goal, the law establishes climate change management instruments at the national, regional and local levels. It also determines the environmental institutionality for climate change, assigning specific functions and responsibilities to each of the national, regional and collaborating bodies that comprise it, with the Ministry of the Environment being the national authority in this matter.

In addition, it creates a National System of Access to Information and Citizen Participation on Climate Change, which will be managed and co-ordinated by the Ministry of the Environment, and establishes guidelines and financial mechanisms to face climate change.

For its part, it is indicated that the Ministry of Public Works must prepare the Strategic Plans for Water Resources in Basins in order to contribute to water management, identify the water gaps of surface and underground water, and establish the water balance and its projections. Each basin in the country must have a Strategic Plan for Water Resources, which will be public and must be reviewed every five years and updated every ten. Notably, there will be a national GHG emissions budget structured according to the Nationally Determined Contribution (NDC), using criteria of cost-effectiveness and equal distribution of burden. These criteria will also guide the definition of sectoral GHG emissions budgets.

Finally, the law makes a series of modifications to different legal bodies in order to adapt the current legal system to this new regulation. One of these modifications is contained in Article 40, which mandates the following:

• to consider climate change in the relevant environmental variables whenever a project is being assessed in the SEIA;
• to describe, when a project is being assessed in the SEIA, the manner in which those projects will be related to the sectoral mitigation and adaptation plans, as well as regional and local management instruments; and
• to consider the climate change variable when assessing the occurrence of unforeseen environmental impacts in the context of the administrative revision process of an RCA.

However, the implementation of the Climate Change Framework legislation is still incipient at the time of writing, as Chile does not yet broadly regulate GHG emission standards. There are only specific and old standards in place that regulate gases that are GHG through primary air quality standards, aimed at curbing concentrations in the environment of some pollutants considered as dangerous to public health, as explained above. The GHGs regulated in Chile through primary air quality standards are nitrogen dioxide (S.D. No 114/2003 of the MMA, ozone (S.D. No 112/2003 of the MMA) and carbon monoxide (S.D. No 115/2002 of the MMA). However, some pollutants controlled by emission standards are also GHGs (eg, S.D. No 13/2011 of the MMA governs the emission standard for thermoelectric power plants, aimed at capping emissions of nitrogen oxides, among others).

Through the regulation of air pollutants, some of which are GHGs, Chilean legislation currently regulates climate change indirectly, with the caveat that these pollutants are regulated as a risk to public health or to the environment overall, and not as GHGs causing climate change.

Another notable aspect of the Climate Change Framework Law is the enshrining of some mandatory principles in the climate action taken by political and administrative authorities. One of those principles is contained in Article 2 d) as “Equity and Climate Justice” and states that, while combating climate change, it is the duty of the State to ensure a fair allocation of burdens, costs and benefits, safeguarding the ability of future generations to meet their own needs, stressing also that climate justice seeks the fair treatment of all people, as well as avoiding discrimination that can arise in certain policies and decisions that seek to address climate change.

In April 2020, the Chilean government presented its 2020 NDC to the UN Framework Convention on Climate Change, which contains Chile’s commitment to reduce its GHG emissions by 30% by 2030 (compared to 2019 emission levels), and to become carbon neutral by 2050.

In addition, the Ministry of Energy has set the goal of closing every thermoelectric power plant in Chile by 2040. A Schedule of Withdrawal or Reconversion of Coal Plants has been presented, which establishes the closure of the eight oldest plants by 2024, representing 19% of Chilean carbon-based power plant capacity. The schedule also establishes a commitment to define dates in worktables formed every five years, which will allow the setting up of specific retirement schedules in the future.

Since the enactment of S.D. No 656/2000, the production, import, distribution, sale and use of asbestos or any other product or material that contains it is forbidden, with the exceptions set forth in the mentioned regulation.

Asbestos is also addressed in S.D. No 594/2000, which provides for minimum health and safety standards in workplaces, forbidding the use of blue asbestos-crocidolite, and considering asbestos (both dust and fibres) as a hazardous waste material to be handled as per the regulations set forth in S.D. No 148/2003.

There are various statutes governing the handling, storage, transportation and final disposal of waste according to the different classes of waste involved, as follows:

• hazardous waste (S.D. No 148/2003);
• solid industrial waste and health and environmental conditions in workplaces (S.D. No 495/2000);
• waste from hospital centres (S.D. No 6/2009);
• sludge from wastewater treatment plants (S.D. No 4/2009); and
• health and safety conditions in landfills (S.D. No 189/2005).

The generation, transport and elimination of waste, whether hazardous or not, must be reported through the web platform of the Pollutant Release and Transfer Registry (Registro de Emisiones y Transferencias de Contaminantes – RETC). It should be noted that the above-mentioned statutes merely include provisions governing the handling of waste that has already been generated, and do not provide any mechanisms for incentivising waste minimisation, recycling or recovery.

Hazardous waste, in turn, is regulated by S.D. No 148/2003 of the Ministry of Health, concerning health regulations for hazardous waste handling. S.D. No 148/2003 governs the conditions for the storage, transport and elimination of hazardous waste, following the "from cradle to coffin" principle, and establishing different record-keeping requirements. Chile has been a party member to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal since 1992, and as an OECD member it is prohibited from exporting hazardous wastes to non-OECD countries in accordance with the 1995 ban amendment, which entered into force in 2019. However, said ban amendment has not yet been implemented in Chile’s domestic legislation. A bylaw to regulate the transboundary movement of hazardous wastes was elaborated by the government in 2017, but it has not yet entered into force.

Law No 20,920 on extended producer responsibility and recycling promotion (Ley de Responsabilidad Extendida del Productor – REP Law) is the broader statute pertaining to waste and includes an economic instrument for waste management, seeking to reduce waste generation and increase recovery. The MMA will gradually set goals for waste generation and recovery, and compliance will be overseen by the SMA.

The REP Law sets forth the following hierarchy for waste handling:

• first: prevention of waste generation;
• second: reuse;
• third: recycling; and
• fourth: total or partial energy recovery.

Waste elimination is seen as the last resort for waste handling. Also, the REP Law represents an important step towards a more comprehensive waste handling policy that includes recovery and recycling in the life cycle of waste.

The REP Law sets forth an extended liability for the producers of products designated as a “priority” by the Law due to their size, their hazardous characteristics, or the presence of exploitable components, with the purpose of decreasing the generation of waste and promoting reuse, recycling and other types of recovery. Those priority products are lubricating oils, electric and electronic equipment, packaging and containers, tires and batteries.

The extended producer liability set forth by the REP Law entails that the producer of priority products will remain responsible for them until they are properly recovered or eliminated by another authorised entity, such as a waste treatment facility or a landfill site.

The REP Law sets forth a hierarchy in waste handling where elimination is the last alternative (see 14.1 Key Laws and Regulatory Controls). This way, any waste with the potential to be recovered must be recovered. This is one of the obligations that forms the extended responsibility of the producer of a priority product.

The MMA will issue regulations considering different instruments to prevent the generation of waste, such as eco-design, labelling and rebates. The MMA will also set goals for waste collection and recovery. To date, the regulations in force are the Regulations of the Recycling Fund (S.D. No 7/2017) and the Regulations setting the Procedure for Setting Recycling Goals for priority products (S.D. No 8/2017).

At the time of writing (November 2022), the Regulation that establishes the goals for the collection and recovery of containers and packaging and the Regulation that establishes the goals for the collection and recovery of tyres have been dictated. However, the MMA is still drafting the Regulation that establishes the collection and recovery goals related to used oils.

Projects with an RCA, and also those sources subject to emissions standards and other instruments named in R.E. No 885/2016, must inform the SMA of any environmental emergency or event associated with them. RCAs often include different disclosure obligations to the SMA, which are determined on a case-by-case basis. Reporting must be conducted online through the RCA follow-up system of the SMA, within 24 hours of the event.

The SMA also has different computer systems to report environmental variables, including:

• a system to report emissions by thermoelectric power plants;
• a system to report the payment of green taxes; and
• a system to report updates in the execution of Compliance Programmes.

Finally, projects with an RCA must inform the SMA whenever the development stage of the project changes (ie, the start of construction, commissioning or abandonment).

Public services in Chile are guided by the principle of transparency: all information held by the administration, and all administrative proceedings, shall be public unless there are reasons provided in the law for making that information reserved or secret. If the information has not been made publicly available by the authority, the public is allowed to request access to such information, which will be granted unless there is a legally valid reason for not releasing such information.

There are several public databases of environmental information, the most relevant of which are as follows:

• E-SEIA, where the electronic records of environmental impact assessment processes are publicly available;
• Sistema Nacional de Información de Fiscalización Ambiental (SNIFA), where all punitive proceedings carried out by the SMA are public; and
• the website of the MMA, which also contains public databases of the process of elaboration or review of policies, regulations, and emission and quality standards.

There are different regulations covering the corporate disclosure of environmental information. For example, the release of emissions and waste must be reported through the RETC carried by the MMA. Different emissions standards provide reporting requirements. Also, many RCAs establish the obligation to provide monitoring and reports that must be disclosed to the relevant authority.

Finally, all regulated parties are obliged to disclose any information requested from them by the SMA.

The party liable for the breach of environmental obligations is the party appearing as the holder of the project before the SEA. Therefore, environmental due diligence is usually conducted whenever there is a relevant transaction involving projects, activities or facilities that are governed by environmental law.

The review is usually composed of documents and information provided by the seller, public information sources and rounds of questions and answers aimed at determining compliance and possible exposure to liability due to the breach of environmental obligations.

Liability is determined by the statute of limitations, which runs for five years following the environmental damage being evidenced, and for three years for administrative breaches in general.

Although Chilean contracts legislation is built upon the principle of good faith, there is no specific obligation to disclose environmental information to a prospective purchaser.

Considering that environmental liability falls upon the party registered as the project owner before the authority, environmental due diligence is a useful tool in having a clearer view of the risk involved in a specific transaction. In addition, indemnity clauses can be an aid to the recovery of costs associated with liability, even when they have no validity before the regulator.

Chile recently established a tax on emissions to the atmosphere of carbon dioxide, particulate matter, nitrogen oxide and sulphur dioxide produced by facilities whose fixed sources, formed by heaters or turbines, add up to 50 MW or more.

The tax is also applicable to new vehicles, light and medium, depending on their performance, emissions and sales price. The tax levied amounts to USD5/ton.

This regulation was recently modified by Law No 21,210, which removed the requirement that these emissions should be produced by establishments whose fixed sources are heaters or turbines, as well as the requirement of thermal power. This modification will come into effect on 1 January 2023.