On May 10th, 2019 Vice-ministerial Resolution N° 007-2019-MEM/VMH was published in the Official Gazette “El Peruano”, approving the “Criteria for the application of section 42-A of the Regulations for Environmental Protection in Hydrocarbon Activities, approved by Supreme Decree N° 039-2014-EM”, in respect to the cases that do not require the modification of the environmental study; and approves the “Format for the cases that do not require the modification of the environmental study”.
It is important to note that section 42-A of the Regulations for Environmental Protection in Hydrocarbon Activities, approved by Supreme Decree N° 039-2014-EM, establishes a list of specific actions that -even when they may involve modifications in the development of hydrocarbon activities- do not require the execution of the procedures to modify the Environmental Study or the Technical Report, as such actions would not imply the generation of negative impacts on the environment. In this sense, it is important to define the specific criteria for their identification, which will allow the holders of the Hydrocarbons Activities to have detailed information in order to know if they fall within the scope of application of section 42-A of the aforementioned Regulation.
In this regard, the Annex 1 of the Regulation details the criteria applicable to each of the actions indicated in section 42-A, among which we have:
a) “Change in the location of the machinery and stationery or mobile equipment within the installations, location or project areas and/or right of way for the linear components in relation to the development of the activities”. For this action, it is established as criteria that sucha changes shall be executed within the area of direct influence duly detailed in the approved environmental study; likewise, this action shall neither generate obstacles or interferences during the execution of the approved monitoring, nor shall imply the modification of monitoring points that correspond to the trace and control of the source to be relocated (including the eventuality in which the machinery and/or relocated equipment is left without a monitoring point for its duly supervision). Finally, it is necessary to specify that the case of a change of location is applicable only for non-executed projects, meaning, that are at a design (project) level.
b) “Renewal of equipment and incorporation of equipment as back-up measure”. In the case of renewal and/or replacement of equipment, the criteria is that these actions must be carried out in the same location approved in the environmental study. Likewise, the characteristics and/or technical specifications of the new equipment must be the same as those approved in the environmental study. On the other hand, for the incorporation of backup equipment the criteria states that this equipment must have protection or environmental control devices and fulfill a support function for the main activity (i.e. in case of electrical failure, pumping of hydrocarbons, etc.). Finally, it is established that the support equipment would only function when there are flaws in the activity, meaning that they should remain inactive during the common operation of the project.
c) "Changes of the coordinate system approved by another system". For its application, it is required that no displacement be made of the location of the monitoring points or of the components, with respect to the area of influence of the approved environmental study.
d) "Incorporation of live fences and the revegetation of areas, provided they are carried out with species of the area or other compatible ones". It is required that said incorporation be made for landscaping purposes. Likewise, the owner must consider the commitments adopted in his environmental study for said action.
e) "The total or partial non-execution of principal or auxiliary components". It is required that said action does not involve the variation (reduction or elimination) of commitments established in the corresponding environmental study, and that the components not executed should not be associated with necessary components for the prevention, mitigation and control of negative environmental impacts.
f) "Elimination of monitoring points due to the non-execution of the activity subject to control or elimination of the source". This action does not include the relocation or elimination of control points of active components of the operation that need to be monitored, according to the approved study. In addition, it is specified that the elimination of the source must be done in accordance with current environmental regulations.
g) "The modification of the schedule of execution of activities that does not necessarily imply changes in the commitments assumed in the Environmental Impact Study". For its application, it is necessary that the environmental certification is in force. Additionally, it is specified that the modification can only be made with respect to the execution periods of activities. Finally, the modification of the schedule must be approved before its expiration.
It is important to point out that each of the actions detailed in Annex 1 (detailed above) have additional criteria that allow identifying when they are not within the scope or section 45-A.
It should be noted that the actions detailed in section 42-A have to be communicated to the competent Environmental Supervision Authority and the competent Authority in Environmental Assessment, before its implementation.
It should also be noted that the general considerations of section 42-A are not applicable for activities developed in Protected Natural Areas, Buffer Zones and / or Territorial or Indigenous Reserves.
Finally, Vice-ministerial Resolution N° 007-2019-MEM/VMH also approves the “Format for the cases that do not require the modification of the environmental instrument”, whereby the holders of the Hydrocarbons Activities may turn in the information -as an Affidavit- to the competent authority, regarding the actions detailed in Annex 1. It should be noted that the mentioned Format is detailed in Annex 2 of the indicated resolution.