Useful pages on the regulator website
- Homepage: https://www.ambiente.gob.do
- Resolutions and regulations: https://ambiente.gob.do/transparencia/marco-legal-de-transparencia/resoluciones/
Orlando Jorge Mera: Minister of the Environment and Natural Resources
The Ministry for the Environment and Natural Resources, as the government authority that regulates all matters relating to the environment, fosters the development of policies regarding the environment, ecosystems and natural resources. It is the only institution capable of issuing environmental permits and imposing administrative penalties for infringements of the law (article 15, Law No. 64-00).
There are vice ministries within the Ministry in charge of different environmental matters, including:
- soil and water;
- environmental management;
- forestry resources;
- protected areas and biodiversity; and
- coastal and marine resources.
The Constitution of the Dominican Republic, as the supreme law, mandates the preservation and protection of the environment and natural resources, and grants the right to sustainable use of the environment and its natural resources.
The Environmental and Natural Resources Law No. 64-00 (the Environmental Law), enacted in 2000, establishes the basic principles of environmental protection, management and use of natural resources, as well as the civil and criminal liabilities and penalties resulting from non-compliance.
There are other legal instruments that complement the Environmental Law:
- the Protected Areas and Biodiversity Law No. 202-04; and
- the technical rules approved by the Ministry of Environment and Natural Resources pertaining to:
- air quality protection;
- water disposal;
- forestry management;
- solid waste management;
- toxic waste management;
- noise controls;
- water quality; and
- labelling for hazardous substances, among others.
The following institutions are under the supervision of the Ministry for the Environment and Natural Resources:
- National Zoo;
- Botanical Garden;
- Museum of Natural History; and
- National Institute of Hydraulic Resources.
The law also creates a national system to preserve our protected areas, by means of environmental evaluation (strategic environmental assessment; environmental impact study; environmental report; environmental licence; environmental impact statement; environmental permit; environmental audits; and public consultation). The Ministry has the legal obligation for surveillance and inspection of all existing permits.
The Ministry is required to develop a plan to educate on the sustainable use of natural resources and the protection and improvement of the environment. It is also required to develop and implement the permanent scientific programme and technological environmental research for the development of a sustainable environment.
Further, the Ministry for the Environment and Natural Resources carries out environmental auditing and internal compliance investigations.
Inspectors from the Ministry are empowered to conduct periodic inspections and audits to ensure compliance with the environmental management programme, established in the environmental authorisation, and all the environmental regulations.
As the regulator, the Ministry may investigate any infringement or crime relating to environmental legislation and has the power to take measures such as closing down projects, cancelling activities to prevent imminent damage to the environment, as provided by the control regulations established by Resolution 18-2007, dated 15 August 2007.
Reporting and disclosure obligations
A developer must obtain the corresponding environmental authorisation before starting any activity that may affect the environment and natural resources, including non-industrial projects. Activities are divided into four categories (A, B, C and D). Categories A and B (environmental licence and environmental permit) require a stricter environmental assessment, while categories C and D (environmental authorisation and minimal impact registration certificate) regulate activities with less environmental impact.
According to the regulations on environmental authorisations, a project developer wishing to obtain any permission or licence must submit a request for environmental authorisation before the Ministry for the Environment and Natural Resources. Before the request is approved, the following steps must be completed:
- inspection by government technicians;
- issuance of the terms of reference, if applicable, including the basis for the preparation of an environmental assessment;
- preparation and filing of the environmental assessment; and
- public hearings, for projects with a high possibility of causing significant environmental impact. In these cases, and after the hearings take place, the public is entitled to present any comments and objections during a 15-day consultation period.
Once these steps are completed, it is up to the Ministry for the Environment and Natural Resources to issue or reject the authorisation, which will contain the compliance obligations to be followed by the developer.
Environmental authorisations regulate all the possible impacts that an activity can generate in relation to the air, water and waste. The average timeline to obtain an environmental permit would depend on the category of the activity, as described above. In this sense, Categories A and B would take approximately seven months, and categories C and D a maximum of two months.
After the issuance of an environmental authorisation, the beneficiary will need to perform an environmental compliance report every six months to provide the regulator with the proper follow-up of any compliance issues. The regulator can make follow-up inspection visits to the facilities to audit and verify compliance with environmental obligations.
Monetary sanctions and recent behaviour
The Ministry for the Environment and Natural Resources may impose several penalties for non-compliance through administrative actions, which may include:
- closure or suspension of activities;
- publication of penalty; and
- confiscation of equipment, material, vehicles and products.
The environmental authority can suspend or cancel an activity whenever there is evidence of non-compliance with the environmental legislation.
Infringements of the Environmental Law and complementary regulations can result in criminal, civil and administrative penalties. In civil and criminal cases, courts of first instance will have jurisdiction. Administrative courts will have jurisdiction in the following cases:
- liability of government institutions arising from non-compliance with, or not adhering to, decisions made by qualified judicial authorities, which decide controversies relating to actions inherent to their functions;
- administrative acts implemented by government institutions; and
- judicial appeals of administrative acts derived from the Ministry for the Environment and Natural Resources.
Dominican courts may rule on environmental infringements to the extent that an offender would be held liable. Judges may impose compensation and restoration measures, imprisonment and fines.
Criminal courts impose penalties for infringements of the Environmental Law and the Criminal Code, such as:
- imprisonment for between six days and three years;
- confiscation of tools, equipment, raw materials, machinery, vehicles and products obtained through illegal activities;
- enforcement of the liquidated damages in favour of the harmed claimants;
- destruction of the illegal facilities operating without the corresponding environmental authorisation; and
- demanding the payment of a penalty ranging from the equivalent of one-quarter of the minimum wage to the equivalent of 10,000 times the minimum wage.
Civil courts have jurisdiction to assess damages and compensation on the basis of the ‘polluter pays’ principle, in accordance with the provisions established by the environmental legislation and civil law.
Civil claims arising from infringements of environmental law exist in the Dominican Republic. These actions may be filed, requiring the polluter to recover or compensate for the environmental damage caused to all parties affected by the polluting activity.
As for contractual violations, the party in default could be ordered to pay restitution for damage and injuries as a result of non-compliance or delays in contractual compliance.
Regarding non-contractual obligations, according to article 1382 of the Dominican Civil Code, the victim must be compensated by the injuring party. In respect of environmental liability, objective liability prevails in every circumstance where the polluter pays principle can be applied.
Non-monetary sanctioning powers and behaviour
The Ministry of Environment has the authority to audit, supervise and investigate all activities performed by an individual or company who, in turn, must provide access and information to the environmental authority. The Ministry can also rule on the type of administrative liability, if any, that applies to each law infringement.
If a third party commits an offence or crime against the environment, the Attorney General for the Environment and the Natural Resources Defence Council will pursue a criminal action, starting with an investigation and search for evidence.
The authority may also investigate any infringement or crime relating to environmental legislation and take any appropriate action.
The Ministry for the Environment can impose non-monetary sanctions on those who violate environmental regulations. In 2019, there were three administrative sanctions for violation of Law 64-00 issued via resolution for the:
- damage caused to the marine area in the Arrecifes del Sureste, a protected area, by the dragging of its anchor by the yacht Seasense, in La Altagracia province;
- spill of a liquid petroleum hydrocarbon into the surrounding area of the naval shipyard facilities of Ciramar Shipyards International Trading Company, in Bahía Las Calderas, Peravia province; and
- damage caused by the Nom du Batiment 2012-03 yacht anchoring in the reefs within the diving point Costa Romantica, Dragon Smoke, located in Bayahibe, La Romana province.
In May 2020, the previous minister, Angel Estevez, suspended the licence of the company Servifuell (issued for the administration of oily waste and bilge water) after it was established that the company had brought 29 containers containing oily material to the country in an irregular manner (see https://ambiente.gob.do/medio-ambiente-visita-muelle-haina-para-inspeccionar-29-camiones-tanqueros-detenidos-por-aduanas-cargados-de-residuos-oleosos-llego-al-pais-de-manera-irregular).
Recent and upcoming developments
After years in discussion, the long-awaited General Law of Integral Management and Co-processing of Solid Waste, No. 225-20 was enacted on October 2nd of 2020. Among the objectives of the long-awaited law, we find: the prevention of waste generation, the establishment of a correct legal regime concerning production and management, the promotion of its appropriate reduction, reuse, recycling and other forms of valorisation. We can also find the regulation of contaminated soils, guarantees regarding the rights to a good environment and protection of the community health. It as well contemplates a regime of green bonds and other incentives.
Likewise, in May 2021, the Regulation for the Application of Law 225-20 on Integral Management and Co-processing of Solid Waste was approved. The purpose of the Regulation is to establish the legal regime for the proper integrated management of solid waste. The content is reduced in the strengthening of the provisions concerning the classification of waste, as well as the responsibilities and attributions of the main actors, the political, managing and economic instruments of these wastes.
The most important challenge in environmental matters is to have a regulatory framework for the environmental damage that open landfills are causing in the country. In the absence of a solid waste law, the country is suffering a health crisis because of the pollution created by the landfills.
Interacting with the regulator
Interaction with the regulator is not very formal in the Dominican Republic. Many officers may be willing to meet with parties, if a reasonable interest exists, following a telephone call to their assistants or an email.
Some officers may request a formal letter asking for an appointment and explaining the purpose of the meeting.
In the event of any action or claim filed against an institution or a person by the Ministry for the Environment and Natural Resources, retaining legal counsel is strongly advised to protect the legal rights of the institution or person, since there are strict measures and expiry terms for the filing of a proper defence, namely investigations, resolution of administrative proceedings or the enactment of administrative regulations.
Notes for foreign investors
Under Dominican law, a seller is not required to disclose environmental problems to the purchaser in a merger or takeover transaction. Nevertheless, disclosure is normally required by contract and covered by warranty clauses.
Environmental provisions set forth in the Environmental and Natural Resources Law are of public policy; therefore, any agreements between the parties that minimises liabilities in the event of environmental damage will have no effect on third parties.
However, it is possible to have a limit of liability clause in an agreement between the parties, but those provisions will only be valid between those parties. This is why, before the purchase of any property, it is recommended to include in the scope of the due diligence an environmental feasibility analysis to identify existing environmental contingencies.
The main difference between acquiring shares and purchasing an asset is that the purchaser of shares will acquire both the shares and all associated liabilities (any company liability to the extent of the number of shares acquired). However, in an asset purchase, the purchaser would only acquire the liability associated with the asset.
Nonetheless, from an environmental perspective, it is necessary to determine the type of asset acquired, since an asset could hold liability to environmental damage; for instance, the extent of the liability could encompass the real estate where the damage occurred.
In merger and acquisition transactions, it is important to pay special attention to the consequences of the strict and joint civil liabilities regimes for environmental damage and to the validity of environmental licences. In general, the following issues should be reviewed:
- environmental authorisations (scope and conditions);
- environmental compliance with the corresponding authorisation before the Ministry of Environment;
- technical compliance reports; and
- investigations of civil and criminal suits relating to environmental damage.
Parties involved in public procurement bids must abide by the special provisions established in the terms of reference and tender contracts. For instance, in cases such as coal refining and dam construction, the terms of reference and tender contract would include an environmental clause that must be followed by the developer. When drafting the terms of reference and tender contract, the authority must specify the conditions that protect the environment and prevent environmental risks or damage, such as the prevention of waste, carbon dioxide emissions, land use, among other variables.
Other regulators it works closely with
Ministerio de Salud Pública y Asistencia Social
Ministry of Health and Social Services (Dominican Republic)
Ministerio de Energía y Minas
Ministry of Energy and Mines (Dominican Republic)
Ministerio de Turismo
Ministry of Tourism (Dominican Republic)
City Hall (Dominican Republic)