Contaminated Areas – CETESB sets out new procedures and requirements to issue technical opinions and ecological risk assessments

The Environmental Protection Agency of the State of São Paulo (“CETESB”) has amended the procedures and requirements to issue Technical Opinions on management of contaminated areas related to (i) reuse of contaminated areas; (ii) shutdown and demobilization of activities that may result in contaminated areas, for licensing and deactivation; and (iii) issuance of water authorization grant to collect groundwater around contaminated areas.

CETESB has recently also provided for the procedure for Ecological Risk Assessment, to be fulfilled in the case that an ecological asset is identified for protection during the stages of Management of Contaminated Areas.

Board Decision (“BD”) No. 106/P/2022

Through such Board Decision, new specific competences were assigned to different CETESB Management Departments to, in response to specific requests presented by interested parties, analyze and issue Technical Opinions. Such responsibilities are assigned as follows:

(i) Management of the Sector for Assessment of Industrial Contaminated Areas (“ICRI”) or the Sector for Assessment of Areas Contaminated by Gas Stations (“ICRP”): to issue a technical opinion related to the procedure for management of contaminated areas;

(ii) Management of the Sector for Reuse and Rehabilitation of Contaminated Areas (“IRAR”): to issue a technical opinion on the preliminary assessment and confirmatory investigation in cases of areas with potential contamination, regarding the procedure to reuse contaminated areas;

(iii) Management of the Division for Assessment of Contaminated and Rehabilitated Areas (“IRA”): to issue a technical opinion on the Intervention Plan for the Reuse of Contaminated Areas, and a Technical Opinion on the Results of the Implementation and Execution of the Intervention Measures, regarding to the procedure to reuse contaminated areas;

(iv) Management of the Sector for Water Authorization Grant Evaluation (“IRAO”): to issue a technical opinion on the procedure to obtain and renew the water authorization grant for wells in the vicinity of contaminated areas;

(v) Environmental Agency Management, linked to the Environmental Control and Inspection Board: to issue a technical opinion to evaluate the Shutdown and Demobilization Plan; and

(vi) ICRI or IRAR: to issue the Rehabilitation of Contaminated Areas for Declared Use authorization document.

The Technical Opinions must be requested in the following cases:

(i) Technical Opinions on Preliminary Assessment and Confirmatory Investigation in Cases of Potentially Contaminated Areas, when there is a proposal for the reuse of an area where the previous activity carried out on-site potentially resulted in a contaminated area, and that the studies performed have not confirmed the existence of contamination;

(ii) Technical Opinions on the Intervention Plan for the Reuse of Contaminated Areas, in cases where a building project is to be developed in a contaminated area proposed for reuse, that includes (i) the interoperability of civil engineering works with the contamination and (ii) the implementation of intervention measures, seeking to obtain the authorizations from the municipal agency for demolition and construction, as well as the issuance of the Rehabilitation Term for the intended new use of the area;

(iii) Technical Opinion on Results of Implementation and Execution of Intervention Measures, when there is a proposal to occupy an area where the necessary conditions for the intended use were achieved, and it is necessary to maintain ongoing remediation measures and/or conduct Closure Monitoring campaigns;

(iv) Technical Opinion for Water Authorization Grant Application Directives, when there is a request for a water authorization grant to collect groundwater for human consumption from wells located around the contaminated area; and

(v) Technical Opinion on the evaluation of the Shutdown and Demobilization Plan, when there is a proposal to cease an activity that could potentially result in a high-priority contaminated area, for Licensing and Deactivation, provided for in Exhibit IV of Technical Instruction (“IT”) No. 39/2017.

There are other cases in which interested parties can request an opinion from CETESB:

(i) Technical Opinion on Intervention Plan for Critical Contaminated Area, in the case of a proposal to implement intervention measures in a critical contaminated area, in order to reduce the risks to the assets to be protected to acceptable levels and obtain the Rehabilitation Term for the declared use;

(ii) Technical Opinion on an Intervention Plan for Contaminated Areas with Confirmed Risk, in case of a proposal or effective implementation of intervention measures, seeking to reduce the risks to the assets to be protected to acceptable levels and obtain the Rehabilitation Term for the declared use; and

(iii) Technical Opinion for Preliminary Assessment, Confirmatory Investigation, Detailed Investigation, and Risk Assessment, in the case that the legal representative identifies the existence of contamination on the property, or in the case that there is interest to obtain CETESB’s opinion on the results of the execution of the stages of the Contaminated Areas Identification Proceeding.

The voluntary request for a Technical Opinion for Preliminary Assessment, Confirmatory Investigation, Detailed Investigation, and Risk Assessment (item “iii”), will be interpreted as a self-denouncement by the agency, and should be considered as a mitigating circumstance in the event of any penalty applied due to the contamination.

In the case that an unfavorable Technical Opinion is issued, the interested party may appeal within 15 (fifteen) days, and if the unfavorable Opinion is maintained, a second appeal may be filed within the same period.

CETESB is authorized to shelve the administrative proceedings in which there are no developments by the requester for 120 (one hundred and twenty) days or more, due to the requestor’s lack of diligence.

Board Decision (“BD”) No. 127/2022/E

This BD aims to ratify CETESB’s technical standard on Ecological Risk Assessment (“ERA”), as well as to define a uniform procedure among the technicians and to guide the ERA analysis to be sent to CETESB.

The Ecological Risk Assessment – ERA aims to evaluate, qualitatively and quantitatively, the risk to which the ecological asset² to be protected may be subject to some anthropic change of a physical, chemical or biological nature. During the Risk Assessment stage, different types of assets to be protected can be identified in order to be contemplated on the risk assessment study.

The necessity of the ERA will be defined in accordance with the Procedures for the Management of Contaminated Areas established by CETESB, including ecotoxicological data, ecological evaluation, dispersion models, and literature data on the sensitivity of the biota of the study site to the stressor³ (any physical, chemical, or biological agent that may induce an adverse effect on an ecological receptor), and may eventually involve other lines of investigation, depending on the situation.

The ERA comprises the characterization of exposure and adverse effects, their causal relationship to stressors, and the integration of this information to establish the risk to which ecological receptors will be subjected.

The ERA will be concluded when there is sufficient confidence in the results to support decision making about the need to implement intervention measures.

(i) Problem Formulation: classification of the area of interest and its surroundings, selection of stressors and ecological receptors, drafting of a conceptual model, definition of the asset(s) for protection  (assessment endpoint) and the Working Plan.

(ii) Analysis: assessment by environmental compartment¹, to classify the exposure and the effects to which the selected ecological receptors² may be subjected due to the existence of stressors³, taking into consideration the spatial and temporal scales, as well as the causal link.

(iii) Risk Classification: final stage, when the risk will be estimated and described within the ecological context, considering the interactions between stressors and receptors, stressors among themselves and receptors among themselves.

If no current or future susceptible ecological receptors are identified from an initial assessment, a Working Plan does not need to be prepared and the ERA concludes at the Problem Formulation stage. As the ERA proceeds, a final document must be presented containing a review of the Problem Formulation, the Conceptual Model, and describing the Risk Analysis and Classification steps, including a conclusion on the occurrence of risk above acceptable levels in the Area of Interest¹, reflecting the degree of uncertainty associated with each step.

Such document must present any proposals for a schedule of subsequent activities that may include the monitoring of the area, or the adoption of appropriate intervention measures. The selection of variables to be monitored should, whenever possible, include those already used in the risk assessment. The ERA and other relevant risk assessments should be carried out concomitantly and considered together in the proposal of Intervention Measures.

Demarest’s Environmental team is available to provide further information or clarification on this and other related matters.

1 Environmental Compartment: Environmental compartments are made up of different media: physical media (such as soil, sediment, surface water, interstitial water, and air) and biotic media (flora, fauna, microorganisms).

2 Ecological Receptors: Ecological entity exposed, or potentially exposed, to the chemical stressor of interest.

3 Stressors: Any physical, chemical or biological agent that may induce an adverse effect on an ecological receptor.

4 Geographic area directly or indirectly affected by the stressors, considering, in all cases, the watershed in which it is located.