On October 27, 2022, the Environmental Agency of the State of São Paulo (Cetesb) published the Cetesb Board Decision 106/2022/P, which establishes applicable procedures for issuance of technical opinions relating to:

  • management of contaminated areas;
  • reuse of contaminated areas;
  • deactivation and demobilization of potentially generating activities of priority contaminated areas for licensing and decommissioning; and
  • granting of groundwater collection wells around contaminated areas.

The first aspect extracted from the new board decision is the emphasis on the procedures relating to deadlines.

According to Article 3, deadlines count on calendar day basis (including weekends, holidays and non-business days), excluding the starting day and including the due date. Cetesb also established that the agency will consider the date that the party became aware of the first or second instance decision rendered by the agency and of other notifications issued in the proceeding as the day in which the confirmation of the reading of the “Communicate” (Comunique-se) notification occurs or automatically after the tenth day from the issuance of the electronic message to the address registered on Cetesb's website – whichever comes first.

Articles 5 to 7 of the Cetesb Board Decision 106/2022/P regulate the competence to issue technical opinions and decide on occasional challenges to the actions, in first and second instances, as follows:

  • Technical opinion on the management procedure of contaminated areas: is issued by the Industrial Contaminated Areas Assessment Management Sector (ICRI) or the Gas Station Contaminated Areas Assessment Sector (ICRP). In the event of filing of administrative defense against any unfavorable opinion issued by the agency, the decision shall be rendered by the Administration of the Contaminated Areas Management Department (IC). In case of appeal against the decision of first instance, the trial will be held by the Board of Environmental Impact Assessment;
  • Technical opinion on the procedure for reusing contaminated areas: is issued by the Management of the Contaminated and Rehabilitated Areas Assessment Division (IRA). In the event of submission of an administrative defense against any unfavorable opinion, the decision shall be rendered by the Management of the Department of Management and Revitalization of Contaminated Areas (IR). The Board of Environmental Impact Assessment is responsible for handling the trial of any appeal;
  • Technical opinion on the procedure for obtaining and renewing well concessions around contaminated areas: is issued by the Management of the Grant Assessment Sector (IRAO). In the event of submission of an administrative defense against any unfavorable opinion, the first instance decision shall be rendered by IRA. If an appeal is later filed, the second instance decision on the matter will be issued by the IR; and
  • Technical opinion on evaluation of Decommissioning and Demobilization Plan: is issued by the Management of the Environmental Agency. In the event of filing of administrative defense against unfavorable opinion, the first instance decision shall be rendered by the Management of the Department of Environmental Management, and the Board of Environmental Control and Inspection is responsible for the judgment of any appeal.

The new decision of the board established a deadline of 15 days, counted from the date of its acknowledgment, for the submission of an administrative defense against a technical opinion. If a decision is rendered in the sense of maintaining the previous opinion, the interested party will be notified to, also within 15 days, file an administrative appeal for judgment in second (and last) instance.

As for the means of procedural communication, the interested party – that is, a natural or legal person that requests the issuance of a technical opinion on contaminated areas before Cetesb – will be notified of the result of the technical analysis by a message on the electronic platform used by the agency. In this same platform, the interested party may even monitor the procedural progress and update registration data.

The Cetesb Board Decision 106/2022/P also determines that the administrative procedures for the issuance of technical opinions on contaminated areas begin with the filing of the request protocol (SD) on the electronic platform used by Cetesb.

In its final provisions, the document determines that proceedings not handled by interested party for 120 days will be filed by Cetesb. However, during this period, upon reasoned justification, an extension of the deadline may be requested, which must be assessed by the competent authority for issuing the technical opinion.

The new decision of the board, therefore, updated the procedure to be observed for requesting and issuing technical opinions by Cetesb’s various entities and provided information on the counting of deadlines, competence for the drafting of the aforementioned technical opinions, types of communication of procedural acts, appeal bodies and competent authorities for judgment.