On July 10, 2013, Costa Rican authorities issued a Decree implementing rules on ground conservation and remediation based on the concentration levels of certain regulated substances (RS), such as arsenic, mercury, and polychlorinated biphenyls, in soil. Decree 37757-S will enter into force on January 10, 2014. It will affect people and corporations manufacturing, transporting, using, handling, storing, or transferring regulated substances, whether for industrial, commercial, or agricultural purposes.

Requirements of the Costa Rican Soil Decree

The Decree implements a strict liability scheme, meaning that the site owner is responsible for maintaining low soil concentration values and for conducting and funding monitoring and remediation required by the regulation, regardless of whether the site owner was responsible for the high concentration values or soil contamination.

The requirements include an obligation for site owners to periodically measure soil concentration values at their sites. For such purposes, the regulation provides a list of substances with intervention values and prevention values, both represented in milligrams per kilogram of dry soil.

Prevention values represent thresholds, that when exceeded, trigger certain duties such as monitoring programs. Intervention values, on the other hand, imply soil contamination, and therefore, trigger more stringent requirements such as remediation programs.

Potentially Polluted Zones

When concentration levels of substances listed in the regulation are higher than the prevention values, the Ministry of Health will declare the site a potentially polluted zone (PPZ) and impose a series of strict follow up measures. Once a property has been declared a PPZ, the site owner is required to submit a monitoring plan within 10 working days and complete the plan within one year. The site owner is expected to report on the progress of the monitoring plan several times over the span of the year.

Polluted Zones

If the levels of the substances listed in the regulation in the soil are higher than the intervention values, the Ministry of Health will declare the site as a polluted zone (PZ). The site owner is then required to develop a remediation plan (plan de remediación) that includes a schedule of activities and a quarterly monitoring plan, which must be submitted and approved by the Ministry of Health.

According to the Decree, the remediation plan must include information such as a diagnosis and characterization of the contaminated system including an indication of the polluting substances, affected subsurface layers, description of sampling results, etc.

Additionally, the Decree states that all sites that exceed the intervention and/or prevention values have to be registered either in the Register of Polluted Zones (RPZ) or the Register of Potentially Polluted Zones (RPPZ), respectively.

General Duties

The Decree contains several general duty provisions, for example:

• Monitoring reports must be developed by a responsible professional appointed by the generator or site-owner. The responsible professional must meet certain requirements, for example, having experience in environmental assessment of physical and chemical parameters of soil.
• On a different matter, operators managing storage tanks containing one of the substances listed in the Decree must submit an annual report on the amount of substances contained in such tanks and the concentration of such substances in the soil at the site. This requirement only applies to tanks that are not equipped with an inspection pit or a secondary containment system. Otherwise, the operator only has to submit the results of the corresponding leakage tests every three years.
• Operators managing underground or aboveground tanks equipped with underground pipes have to keep monthly logs on the volume of the stored substance.

Transfer of Ownership

The Decree also includes some strict regulations about the procedure that follows transfer of property ownership. When the ownership of certain types of facilities such as blood banks, x-ray centers, or drug stores, is transferred, the parties are obliged to assesses whether the soil at such a facility is polluted or not. If the concentration values exceed the ones mentioned in the Decree, the party acquiring ownership has to submit a notification to the Ministry of Health stating that he/she will be responsible for all of the obligations contained in the regulation.

Conclusion

The main impact of the Decree on site owners is the obligation to monitor soil concentration values.

The regulation does not specifically determine such an obligation; however, it does grant the Ministry of Health the power to measure these values and to impose more stringent requirements on operators when the values exceed legal thresholds. In these cases, site-owners have an explicit obligation to monitor concentration values and to submit periodic monitoring reports to the Ministry of Health.

Another important impact is the requirement imposed on operators managing storage tanks. The Decree states that such operators are obliged to submit annual reports on soil concentration values, and to keep a log on the volume of the stored substance in order to check for any possible leakage from the storage systems into the ground.

The operator will have to bear all of the costs related to the prevention and remediation actions mentioned above.

About the Author

Enrique Jaramillo is a regulatory consultant in the Brussels, Belgium office of Enhesa. He is an Ecuadorian-trained EHS regulatory expert with more than four years of professional experience. He specializes in Latin American EHS law and is responsible for analyzing EHS Regulation from the countries in Latin America and the Caribbean. Mr. Jaramillo’s key experience includes the procedures of audit protocols in Ecuador, as well as occupational safety and health inspections. He holds a degree of Law awarded by the Catholic University of Guayaquil, a tax specialist degree granted by the Castilla-La Mancha University in Spain, as well as two LL.M’s in Law and Economics awarded by the University of Hamburg and the University of Bologna.

Photograph: Rose/Rosa from My Aunt’s Garden by Jose Conejo Saenz, Heredia, Costa Rica.

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