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Terralax Questionnaire on Environmental Law

 

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Terralax Questionnaire on Environmental Law

September 17, 2007
By Francisco Serarols

QUESTION NO. 1:

RESPONSE:
The following legal provisions regulate the greenhouse gas emissions:

1. Constitution of the Republic signed in 1983: Art. 117: Protection for Natural Resources, Environment and Ecosystems; and regulation of toxic goods; Art. 144: Ratified conventions had superiority over the laws, if contradictions were found.

2. Vienna Convention dated March 22nd, 1985; ratified by El Salvador on November 26th, 1992.

3. Protocol of Montreal, Canada, dated September 16, 1997; ratified jointly with Vienna Convention, on November 26th, 1992, and its 3 amendments:

a). London, June 29, 1990;
b). Montreal, September 17th, 1997;
c). Copenhagen, November 25th, 1992 -ratified by the Congress on August 2000.

4. Kyoto Protocol from ONU Frame Conference held on Rio in 1992, dated December 1997, ratified by the Congress on September 15th, 1998;

5. Environment Law, dated May 1998 and the following Special Regulations:

a). Special Regulation on Control for the Ozone Layer Exhausting Substances, dated May 2000.
b). Special Regulation of Technical Rules of Environment Quality, dated May 2000.
c). Special Regulations for Solid Wastes, May 2000.

QUESTION NO. 2:

RESPONSE:
A designed authority by El Salvador Government, nationwide, is the Environment Ministry (MARN, in Spanish). The Permanent Salvador Commission with the United Nations Organizations, in the Seventh Conference of Parties (COP7) over Best Clean Development (MDL, in Spanish) designed said Ministry, in July 2002, in virtue by which approved the Substances Extinguishing the Ozone Layer Reduction Project.

QUESTION NO. 3:

If greenhouse gas emissions are regulated in your jurisdiction, what are the main sources of legal authority for greenhouse gas emission regulations?

RESPONSE:
Environment Ministry designs main sources of legal authority. Art. 3 provides that Ministry Council will issue the Environment National Policy, upon proposal of MARN, in coordination with the National System of Environment Management (SINAMA in Spanish), integrated by all the Environment Departments of Self-governing Institutions and 262 Townships, being MARN who coordinates (Art. 6). 

QUESTION No. 4:

RESPONSE:
Kyoto Protocol was adopted by Congress ratification on September 15, 1998. Our country is listed as a non-Annex 1 Party (developing country).

QUESTION NO. 5:

RESPONSE:
1). Art. 47 of Environment Law ordered MARN to elaborate a “National Plan for the Climate Change and Ozone Layer Protection”.
2). Both, Arts. 4 and 6 of the Special Regulation for Ozone Layer Exhausting Substances regulate the following:
Chemical and organic compounds halogenated derivatives from hydrocarbons, gaseous products that are used as refrigerants, foams, propellents in aerosols, solvents, gaseous vermin killers and gasses for extinguishers.
3). Special Regulation of Technical Rules of Environment Quality regulates:
a). Fixed or Stationary Sources: Art. 9. Regulate emissions in maximum permissible of air contaminants to guarantee the human health and environment. Same Article include in a chart, parameters of each contaminant, maximum permissible values and period of time in which such values are produced, of the following:
Sulfur dioxide (SO2); Carbon Monoxide (CO); Nitrogen Oxide (NOx); Ozone (O3); breathable particles (PM); total particles suspended; Lead (Pb).
Art. 10 order to install control and reduction systems that prohibit the using of techniques of dilution or dispersion.
Art. 11 regulate the design of chimneys;
Art. 12 regulate household incinerators within urban zones or crowded places.

b). Mobile Sources: Art. 14 order that in “National Council of Science and Technology” (CONACYT, in Spanish), that according to its Law (Art. 28, b), elaborate the Technical Rules of Environment Quality. Art. 3, of this Regulation orders CONACYT upon hearing the opinion from MARN, Public Health and Social Assistance Ministry (MSPAS) and Transport Subdivision, elaborate, review and update the contaminants permissible limits emitted to the air.
 
Art. 15 order that vehicle emissions must be controlled by a Control Center authorized by el MARN.
Art. 16, regulates the quality of fuels and additives with chemical composition contaminating the atmosphere; prohibiting the usage of lead as additive of fuels, based in LMA Art. 42. This article is the basement for this Regulation.

QUESTION NO. 6:

If greenhouse gas emissions are regulated in your jurisdiction, how are such emissions regulated at the industry sector level or facility level in your jurisdiction?  If applicable, what industry sectors are regulated in your jurisdiction?

RESPONSE:
See Answer to Question No. 5.

QUESTION NO. 7:

RESPONSE:
See Answer to Question No. 5.

QUESTION NO. 8:

RESPONSE:
See Answer to Question No. 5.

QUESTION NO. 9:

If greenhouse gas emissions are regulated in your jurisdiction; what are the specific strategies or initiatives (i.e., promotion of renewable energy sources, improved energy efficiency, promotion of bio-fuels, reduction of landfill methane emissions, carbon tax and tax credits) have been, or are likely to be, adopted for purposes of achieving emission reduction targets in your jurisdiction?

RESPONSE:
Among the existing specific strategies or initiatives to improve the reduction of greenhouse gas emissions, are the following:
 

1. On September 7th 2007, the Agriculture and Livestock Ministers signed in Colombia, an Agreement to initiate the Project of a Pilot Plant for the Bio-fuels Production in El Salvador, with a capacity of installed production of 2000 lt., per day.
2. In order to generate raw material for the Bio-diesel Plant, an higuerillo cropland in 500 areas is finalizing, supported with Brazil techniques;
3. There is a pilot project for higuerillo and African palm trees crops;
4. The consultation with interested sectors in Ethanol Law Project is almost finishing, to be filed with the Congress, before expiration of this year, that among other objectives and incentives, provides on the obligation to use at least 10% of ethanol in the fuel;
5. Hydrocarbons Law Project has been filed with the Congress that will regulate the marketing, distribution and sale of fuels;
6. El Salvador has called to and it will be the seat of “II Latin American and Caribbean Bio-fuels Congress”, to be held on October 26-27;
7. Financial Impact for sale of the Emissions Reduction Certificates (ERCs), are the following:

a). Landfill Disposals for Methane collection: Increasing of the Return Internal Rate (RIR): from 13.30% to 32.70%;
b). Energetic efficiency: Increasing of Return (RIR): 12.80%;
c). Bio-mass: (RIR): 2 al 5%
d). Hydroelectric: (RIR): 0.7 al 2.10%
e). Wind power: TIR, 0.4 al 0.7 %

Special Regulation for Integral Management of Solid Wastes, states regulations on its warehouse, disposal in containers, collection and transport, collection equipments, transfer stations, landfills, land use as a final disposal. Also Landfills are classified as Manual, Mechanical, Combined or Mix; gives safety criteria, vigilance and a Regime for breaching penalties .

QUESTION NO. 10:

What greenhouse gas emissions trading schemes (e.g., cap and trade) are in operation in your jurisdiction and how is the emissions market developing there?

RESPONSE:
Special Regulation of Technical Rules of Environment Quality only establishes maximum limits for import of Ozone Layer Exhausting Substances SAO, in its Art. 7, by incorporating a chart in which effective 1999, a total of 309 Tn, until reach a reduction in 2010, a 0 Tn.

Each importer must fill the Form and file with MARN, specifying the origin requirements, quantity and company source of SAO, according to the product in question (Art. 8 Reglamento y Art. 47, b), LMA.

Negotiable bonds are canalized for the Reduction of CO2, existing 2 entities involved: La Geotérmica S.A de C.V. that generates power from these sources and “MIDES”, a private company that has built a high technology Landfill and has a Solid Waste Treatment Plant in the metropolitan area of San Salvador, to receive or collect solid wastes from various departments and is capable to process all the waste generated from 262 townships of our country.

QUESTION NO. 11:

Are there market based mechanisms in your jurisdiction, such as (i) Joint Implementation under which compliance with emission reduction targets may be achieved through emission reduction projects between Annex 1 Parties (“emission reduction units”), (ii) Clean Development Mechanism, which allows for emission reduction projects to be implemented in non–Annex 1 jurisdictions (“certified emission reductions”), or (iii) emissions trading, under which credits generated under the above projects can be purchased and sold on the market?

RESPONSE:
El Salvador generates renewable energy, both Hydroelectric and Geothermal, participating in MDL Potential, as follows:

1. Five Hydroelectric Pools with installed capacity of 100.8 MW, with a potential of reduction of CO2 yearly from those Pools, equivalent to 1.078. 24;
2. Bio-mass generating: Installed capacity: 7.8 MW; yearly Potential Reduction of CO2: 31.334;
3. Wind Power Project: Installed capacity: 25.8 MW;
4. Methane : Yearly Potential de Reduction of CO2: 82.680;
5. Decomposition of HFC23: Potential Reduction of CO2 per year: 3.000.000
6. Geothermal Plant by Condensation in Berlín. Installed capacity: 56 MW. Yearly production of 211.331 MWh that reduces 121.218 Tn., per year of CO2; in formulation of “Project Design Document” (PDD), with Netherlands.
7. Geothermal in Berlín of Biannual Period. Installed Capacity 9MW. Yearly production of 67.392 MWh. Potential of Reduction of CO2, de 48.859 Tn., per year; in Formulation Project of PDD.
8. Geothermal Plant in Ahuachapán. Installed Capacity of 20 MW; Annual production of 112.320 MWh; Potential of Reduction of CO2 de 81.432 Tn., per year;
9. Geothermal Field Cuyanausul: Installed capacity of 10 MW. Production of 55.845 MWh and potential of reduction of CO2, de 40.488 Tn., per year.
10. Geothermal Field in San Vicente; Installed Capacity of 54 MW; annual production of 303.264 MWh; with potential of reduction of CO2, de 219.866 Tn., per year (It will start to operate in 2009);
11. Compañía Azucarera Salvadoreña: Co-production with waste pulp; with installed capacity of 42.5 MW; annual production of 83.813 MWh; and potential of reduction of CO2 de 57. 813 Tn., per year;
12. Ingenio El Ángel: Co-production with waste pulp; with installed capacity of 10 MW, and annual production of 19.00 MWh; with potential of reduction of CO2, de 13.775 Tn., per year. (Negotiating with a Japanese company);
13. Biothermica Technologies Guy Drouin: Methane collection, potential reduction of CO2, of 122.900 Tn. Per year (An endorsement letter validation and emission pending);
14. Small Hydroelectric Central “PAPALOATE”: Installed capacity of 2 MW and production of 8.600 MWh, with a potential of reduction of CO2, de 6.235 Tn., per year (Project in process of elaboration)
15. Small Hydroelectric Central in Río Sapo. Installed capacity of 2.5 MW. Annual production of 13.000 MWh. Potential of reduction of CO2 de 9.425 Tn., per year;
16. Hydroelectric Central El Chaparral ( Dept. of San Miguel). Installed capacity of 65 MW. Annual production of 180.200 MWh. Potential of reduction of CO2 de 115.119 Tn. por year (Projected for 2010);
17. Hydroelectric Central El Cimarrón, Dept. of Chalatenango, with installed capacity of 242 MW. Annual production of 881.500 MWh, and a potential of reduction of CO2, of 631.000 Tn., per year. (Projected for 2012).

QUESTION NO 12:

RESPONSE:

Our country has an approximated forest mass of 264.000 Has. As eligible land use activities that remove greenhouse gases from the atmosphere, there are the following:

1. In 14 Departments of the country, there are Revegetation Projects aggregating a Potential Cropland Area of 196.588 Has.; with a total potential collection of CO2(TMC) de 22.627.423, Absorption capacity of CO2  of 29.746.841, by reforestation.
2. Specimens to be sew: Eucalyptus camandulensis, caoba, cedro, ciprés, conacaste, laurel, madrecacao, maquilishuat, pino caribe, teca and other specimens;
3. Jointly with FAO BMI, an aggregate of principles has been set forth to address, plan and execute the forest strategies, by planting the necessity of a capital seed, creation of revolving funds and counterpart funds for forest bonds or incentives; international cooperation funds or from private sector;
4. By means of Agriculture and Livestock Ministry (MAG), Forestry Bond is executed for management of croplands, in an amount of 5.6 millions of dollars. They will be taken from the Millenium Funds Account with which El Salvador has been favored, to saw 15.000 Hs., with timber-yielding specimens in priority zones as North Zone of the country. It is relevant to mention the importance given by MAG, in maintaining coffee forestry, covering the 10% of nationwide territory, and being a big collector of CO2 and oxygen liberator, which is promoted with bonds for preserving such forest, because our country has been classified as a gourmet coffee producer. The above mentioned allow to coffee producers preserve the coffee forest;
5. BMI Bank manages a Coffee Reserve Fund and according to Coffee Salvadoran Council and GOES, BMI has projected a 30% Fund to debt payments of Coffee Sector; which 98% of coffee producers have applied.

QUESTION NO. 13:

RESPONSE:
Yes they do. They are included in activities in Art. 21 of Environment Law, which comprise all the Productive Sector activities, such as agricultural, agriculture-industrial, Industrial sectors, thermal power, nuclear, geothermal, hydroelectric generating sectors, etc.; and highly risky activities requiring an Environment Risk Study for Environment Permit be approved.  

For granting such Permit, an Environment Management Program is required according to Article 20 of the same Law, and a Public Consultant, pursuant to Article 25 of mentioned Law, and Article 32 of the Law General Regulation.

Procedure to be followed for Emission Reduction Projects approval under MDL is the following:

Step 1: Environment Permit Application with MARN. A Project Design Document must be filed (PDD); and a summary of contribution to Sustained Development;
Step 2: Verifying of established requirements for the Permit
Step 3: A data analysis is carried out;
Step 4: A favorable or unfavorable Technical Resolution is obtained;
Step 5: MARN applies for National Approval Letter;
Step 6: If applicable, Approval Letter is issued.

Estimated time for these procedures is of 45 working days.

QUESTION NO. 14:

RESPONSE:
MARN informed us that there is a National Report about Climate Change, in coordination with the Central American Region, Panama and Belize. Those countries are part of Central American Integration System (SICA) in which is the Environment and Development Central American Commission (CCAD) that coordinates the Environment Legislation, and records the Regional Inventory about Environment and interregional traffic of Toxic and Hazard Wastes, as well as SAO.

MARN in coordination with SINAMA, according Article 30 of LMA, are obliged to collect update and publish the environment data, and provide a National Report of the Environment Status every 2 years (Art. 31).

QUESTION NO. 15:

Are greenhouse gas emissions subject to inspection in your jurisdiction?

RESPONSE:
Greenhouse gas emissions are inspected by means of Environment audits ordered by Environment Law (Art. 27); and follow up through Environment Departments of the Self-governing Institutions and City Halls (Art. 28).

QUESTION NO. 16:

What are the potential enforcement consequences if a facility fails to comply with greenhouse gas emission regulations, including any specific emission limitations established at the facility?  What, if any, consequences are there if your jurisdiction fails to meet its greenhouse gas emission limitation or cap?

RESPONSE:
The potential enforcement consequences by breaching are object of a Sanctioning Procedure by MARN, according to Article 91 to 98 of Environment Law; with civil responsibility, if any damages against third parties occurs (Art 100), pursuant Civil Proceedings Code; and criminal consequences (Art. 106) if damages to individual’s health or life were typified as such, according to Criminal Code, Title X, Environment Felonies, punishable with 6 to 10 years of imprisonment non-release on bail.

Health Code by means of an Administrative Proceeding also sanctions damages to individual’s health  (Art. 315 through 334).
 

QUESTION NO. 17:

RESPONSE:
This issue of global climate change directly affects, not only El Salvador, but all the Central American Region, since the Storms and Hurricanes formed in Atlantic or Pacific, provoke large floods, destroying plantations and livestock; riverside landslides, resulting in destruction of forest areas and also rural housing, and many times, when storms are severe in Atlantic side provoke continuous rains increasing floods and landslides on the heights of mountains over cities and townships, causing losses in lives and housing. Also climate alters and low zones suffer with high temperatures.
     

QUESTION NO. 18:

Is there anything else that you would like to add which you consider would be of interest or importance concerning the issue of global climate change and the regulation of greenhouse gas emissions in your jurisdiction?

RESPONSE:
We deem that Environment Authorities in coordination with Environment Unit of Civil National Police, General Attorney’s Office, and Judicial Body should have major control and enforcement in the execution, not only of the environment control, but the application of administrative, civil and criminal sanctions mentioned above; because there is legislation in force, including Public Transportation Law that prohibit vehicle gas emissions, specially in urban area, there is a judicial anarchy by transporters by lack of authority of Transport Division, that do not control nor sanction the dense smog that difficult visibility; they have old buses over 25 years of service, contaminating themselves and hundreds of pedestrian in the city.

Furthermore the Congress tolerance that year by year renew circulation permits those old buses that form the vehicle fleet in all the cities of the country.
 
This may be the biggest problem of pollution by CO2, since in the course of the day the Metropolitan Zone, which is formed by 14 townships, appears a darken atmosphere by smog provoking severe damages in individual’s health, mainly in children. El CO2 expelled by vehicle system severely damages the Ozone Layer over the atmosphere, letting pass through more solar energy heating more the oceans and the continents.    

Regarding solid wastes, recently the problem has become worst. Although Environment Law in its Article 21d) order to perform Studies of Environment Impact for treatment, warehousing, removing and final disposal of solid and hazardous wastes, after 8 years pass over since its enforcement, 262 townships continue disposing them under open cast.