Chile's Environment Superintendency (SMA)

The Superintendencia del Medio Ambiente (SMA) is the Chilean public body responsible for inspecting and sanctioning compliance with environmental regulation. It is a decentralised public service with its own legal personality and assets, overseen by the President of the Republic through the Ministry of the Environment.

In one line: if your company holds an environmental qualification resolution, is subject to an emission standard, operates in an area covered by a decontamination plan, or files with the RETC, the SMA is the authority that checks whether you comply and the one that sanctions you if you do not.

Where it comes from

The SMA was created by article two of Law 20,417, which establishes the Ministry, the Environmental Assessment Service and the Environment Superintendency. The law was enacted on 12 January 2010 and published in the Diario Oficial on 26 January 2010. That article two contains its organic law, and it is the text behind every article cited in this entry.

The institution began hiring staff in 2010, but its inspection and sanctioning powers took effect on 28 December 2012. That was not a discretionary decision: Law 20,417 provided in its transitional articles that the titles creating the Superintendency would come into force on the same day the Second Environmental Court started operating. That court was created by Law 20,600, published on 28 June 2012. The SMA was designed from the start to be tied to judicial review.

What it inspects, and what it does not

Article 2 sets out its purpose: to carry out, organise and coordinate the monitoring and inspection of four things.

• Environmental qualification resolutions (RCA).
• The measures in prevention and decontamination plans.
• The content of environmental quality standards and emission standards.
• Every other environmental instrument established by law.

Whatever falls outside stays with the sectoral bodies, which keep their inspection powers over matters that are not the SMA's. That said, those bodies must adopt and respect the criteria the SMA sets on how inspection work is carried out. In practice the SMA defines the method even where it does not inspect directly.

How it inspects

• Annual programmes and subprogrammes. Article 16 requires it to set, every year, the inspection programmes for environmental qualification resolutions, for prevention and decontamination plans and for quality and emission standards, region by region, plus the sectoral subprogrammes identifying which body does what.
• Accredited third parties. It can contract inspections, verifications, measurements and analyses out to duly certified technical bodies. The regulation demands absolute incompatibility between inspection work and consultancy on environmental impact declarations or studies, plus at least three years of qualified experience.
• Information requests. It can require, examine and process the data, sampling, measurements and analyses that regulated parties must provide, and set general rules on how to present them. It must grant a reasonable deadline given the volume, complexity and location of the project.
• Citizen complaints. Anyone can report a breach of environmental management instruments or standards, and the SMA must report the outcome within 60 working days. If a sanctioning procedure follows, the complainant becomes an interested party for all legal purposes.

The sanctioning regime

Article 35 reserves the sanctioning power exclusively to the SMA over a closed list of infringements. The ones that show up most often in corporate life are these:

• Breaching the conditions, standards and measures set in an environmental qualification resolution.
• Running projects or activities that legally require an environmental qualification resolution without holding one.
• Breaching the measures in prevention and decontamination plans and in quality and emission standards.
• Breaching greenhouse gas emission standards.
• Failing to answer the SMA's information requests.
• Failing in the duty of emission source operators to report for the registry referred to in article 70(p) of Law 19,300, which is the RETC.
• Breaching the management plans of Law 19,300 and the obligations arising from provisional measures.
• Breaching any other environmental rule with no specific sanction attached.

Classification and fine ranges

Article 36 classifies infringements as very serious, serious and minor, and articles 38 and 39 set which sanction applies to each.

Article 38 lists four sanctions: written warning, a fine from one to ten thousand annual tax units, temporary or permanent closure, and revocation of the environmental qualification resolution. The annual tax unit is indexed, so the real ceiling changes every year and it is worth checking the current value before running numbers.

To calibrate the sanction, article 40 requires weighing the importance of the damage or risk caused, the number of people whose health could have been affected, the economic benefit obtained from the infringement, intent, the offender's prior conduct and financial capacity, and compliance with the compliance programme, among other criteria. Infringements lapse after three years, a period interrupted by notification of the formal charges.

The compliance programme, the key piece

Once a sanctioning procedure starts, the offender may submit a compliance programme within 10 days of the act that opens it: a plan of actions and targets to return to compliance within a deadline set by the SMA.

• Once the programme is approved, the sanctioning procedure is suspended.
• If it is completed on time and to the agreed targets, the procedure is closed.
• If it is breached, the procedure restarts and the fine can reach double the amount that applied to the original infringement, unless there was a self-report.
• It is not available to parties that previously took up gradual compliance programmes, that were already sanctioned for very serious infringements, or that already submitted a compliance programme, unless those were minor infringements.

The approval criteria sit in Supreme Decree No. 30 of 2012 of the Ministry of the Environment, which approves the regulation on compliance programmes, self-reporting and repair plans, published in the Diario Oficial on 11 February 2013.

Self-reporting and repair plans

Article 41 requires the SMA to waive the fine for anyone who comes forward to its offices for the first time and reports an ongoing infringement, provided they fully execute the compliance programme. Using the mechanism a second and third time cuts the fine by up to 75% and 50%. Two conditions apply: the information must be precise, truthful and verifiable, and the conduct must stop immediately, with measures taken to reduce or remove the negative effects. If the SMA had already opened an investigation into the same facts, the self-report has no effect.

Article 43 also allows a voluntary repair plan proposal, backed by an environmental technical study, once the resolution closing the procedure has been notified.

Provisional measures and suspensions

During the procedure, the case officer may make a reasoned request to the Superintendent for provisional measures to prevent imminent harm to the environment or to human health: correction, safety or control measures, sealing of equipment, temporary closure, halting operations, temporary suspension of the environmental qualification resolution, or monitoring and analysis programmes at the offender's cost. They last up to 30 calendar days and any renewal requires a reasoned resolution.

Three of them, temporary closure, halting operations and temporary suspension of the environmental qualification resolution, require prior authorisation from the Environmental Court. The same applies when the SMA wants to apply the suspensions of operating authorisations under article 3(g) and (h).

How it connects to the rest of the Chilean framework

For the full map, see our guide to environmental and sustainability regulation for companies in Chile.

The SMA and the Environmental Court

What the SMA decides is reviewed by the environmental courts created by Law 20,600. These are the deadlines worth keeping to hand:

• Reconsideration before the SMA itself: 5 working days from the day after notification, with 30 working days to resolve. Filing it suspends the deadline for the illegality claim.
• Claim before the Environmental Court: 15 working days from notification. Resolutions imposing fines can always be challenged, and they are not enforceable until that deadline passes or the claim is resolved.
• Discount for payment: if you do not challenge and pay the fine within 5 working days of notification, evidencing the deposit with the Treasury, the amount is cut by 25%.
• Mandatory referral: whenever the SMA imposes closure or revocation of the environmental qualification resolution, the resolution must always be referred to the Environmental Court.

Transparency: SNIFA

Article 58 requires the SMA to record the sanctions it imposes in a public registry naming the responsible party and describing the infringement and the sanction, accessible electronically. That registry lives in the National Environmental Enforcement Information System (SNIFA), the public site where the SMA publishes inspection activity, sanctioning procedures, resolutions and statistics. It matters for two reasons: your record is public, and so is your suppliers'.

A warning: some conduct is also a crime

The SMA's organic law carries its own criminal offences. Maliciously submitting false or incomplete information to the Superintendency to evidence compliance with obligations under an environmental qualification resolution, emission standards, repair plans or compliance programmes carries a prison sentence in its minimum to medium degrees plus a fine of 100 to 1,000 monthly tax units. Breaching a closure order, or significantly preventing or obstructing inspection, is also an offence. One more reason for every figure you submit to be traceable back to its source document.

It is worth adding that a bill is going through Congress amending article two of Law 20,417 to strengthen environmental inspection and enforcement. Until it is published, what is described here is what applies.

A regional comparison

If you are coming from the Mexican framework, the closest equivalent is PROFEPA, with two differences that matter: the SMA is a decentralised service with its own legal personality, and its sanctioning decisions are reviewed by specialised environmental courts rather than the general administrative jurisdiction.

Frequently asked questions

What can the SMA sanction?

Only the infringements reserved to it by article 35 of its organic law: breaches of environmental qualification resolutions, of prevention and decontamination plans, of quality and emission standards, of information requests, of the duty to report to the RETC, of management plans and of provisional measures, plus any environmental rule with no specific sanction attached.

How large can the fines be?

Up to ten thousand annual tax units for very serious infringements, five thousand for serious ones and one thousand for minor ones. Very serious and serious infringements can also draw closure and revocation of the environmental qualification resolution.

What is a compliance programme for?

To suspend the sanctioning procedure and close it without a sanction if it is executed properly. The risk is symmetrical: if it is breached, the fine can reach double the amount that applied to the original infringement.

Can I appeal an SMA sanction?

Yes. You can file for reconsideration before the Superintendency within 5 working days and a claim before the Environmental Court within 15 working days of notification. If you would rather not litigate and you pay within 5 working days, the fine drops by 25%.

Does the SMA inspect my company's carbon footprint?

Not generally today, because HuellaChile is voluntary. It does oversee and accredit the technical bodies that verify those certifications, and article 45 of Law 21,455 tasks it with sanctioning breaches of the annual emissions report under article 41, whose exact scope depends on a regulation still in progress.

What the SMA reviews is not your intentions, it is your evidence: every source, every measurement and every filing with the source document behind it. At Manglai we help you build and keep that traceability. Start with our carbon footprint solution.