Extractive Industries in Times of Circulation and Isolation Restrictions.

The exceptional regulation issued due to the pandemic related to the activities detailed in the title, are analyzed in this section, distinguishing the activities that must cease from those that have been excepted. Likewise, an initial reference is made to the impact of these regulations on compliance with legal obligations – especially in environmental and safety matters – and some principles of the Federal Civil and Commercial Code to be taken into account. (Additional to those already mentioned in other sections of this report).

Regulations

1. Decree 297/20 (03.19.2020)

It provides for “precautionary and mandatory social isolation” until April 13 inclusive of the current year, and this period may be extended for the time considered necessary taking into account the epidemiological situation.

However, among other, it provides that people affected by the activities and services declared essential in the emergency, as detailed below, and their actions are exempt from complying with the “precautionary and mandatory social isolation”, and their circulation must be limited to the strict performance with these activities and services:

6. People who must attend a Force Majeure situation.

12. The following industries: food, their production and supplies chains; personal hygiene and cleanliness; medical equipment, medicines, vaccines and other sanitary supplies

13. Activities related to the production, distribution and commercialization of agriculture and fishing.

16. Collection, transport and treatment of waste (urban solid, dangerous and pathogenic).

17. Maintenance of basic utilities (water, electricity, gas, communications, etc.) and emergency care.

18. Public passenger transportation, transportation of goods, oil, fuels and LPG

22. Essential surveillance, cleaning and guard services.

23. Minimum guards to ensure the operation and maintenance of Oil and Gas Fields, Oil and gas treatment and/or refining plants, transportation and distribution of electrical energy, liquid fuels, oil and gas, fuel dispensing stations and power generators.

It also provides that the Chief of the Ministers Cabinet, with the recommendation of the health autority, may extend or reduce the exceptions provided, depending on the dynamic of the epidemiological situation and the efectiveness observed in complying with the current measure.

In all these cases, employers must guarantee the hygiene and safety conditions established by the Ministry of Health to preserve the health of the employees.

2. Administrative Decision 429/20 (03.20.2020). Incorporation of excepted activities and services.

It incorporates into the list of activites and services declared essential in the emergency, excepted from compliance with the “precautionary and mandatory social isolation” and the circulation prohibition, among others, the following:

1. Industries that carry out ongoing processes whose interruption implies structural damage to the production line and/or machinery may request authorization to the Industry, Knowledge Economy and External Commercial Management Secretariat, so as not to discontinue their production, minimizing their activity and staff.

2. Production and distribution of biofuels.

7. Airport operation. Garage and parking operations, with minimum staff.

8. Sustaining activities related to the environmental mining protection.

9. Tanneries, with minimum staff, for the reception of leather from the refrigeration industry.

3. Protocol S/N/2020 TRANSPORTATION MANAGEMENT SECRETARIAT

MINISTRY OF TRANSPORT. FLUVIAL, MARITIME AND LACUSTRINE TRANSPORTATION (Official Gazette March 20, 2020).

The protocol defines “essential work” and clarifies that it is aimed to all actors related to water transportation, both by sea, river and lake, and the merchant marine.

The protocol also defines those who are “essential staff” and foresees they will be able to authenticate before National, Provincial and Municipal authorities that their work is considered “essential” through their personal identifications (Notebooks or Cards or certificates or credentials typical of the activity and note from the employer or principal that certifies it) to circulate for operational and service reasons.

The protocol includes specific provisions in relation to: 1. CONTINGENCY PLAN, 2. GENERAL PREVENTION MEASURES, 3. OPERATIONAL PREVENTION MEASURES, 4. PRACTICAL, 5. PROTECTION OF LAND STAFF PROVIDING SERVICES ON BOARD, 6. WHO CANNOT ENTER THE VESSELS (ships, barges and tugs), 7. WHO CANNOT ENTER THE PORTS, 8. VESSEL SERVICES, 9. ISOLATION MEASURES IN PORT FACILITIES, and 10. QUARANTINE.

4. Resolution 2/2020 – NATIONAL GAS REGULATORY AGENCY (Official Gazette 03/27/2020)

It establishes that as long as the mandatory isolation established by Decree 297/20 or similar measures is mantained, the public distribution service suppliers must completely suspend on-site attention in commercial offices, and must reinforce the measures adopted that allows to continue serving users through the non-site channels. This measure includes any other on-site public attention that the distribution and transport suppliers possess.

Instruct the public transport and distribution service suppliers, within the specific framework of the public emergency in health matters and the provisions of Decree 297/20, to only provide for the circulation of staff resources that are required for the continuity and safety of the services in their respective technical and operational aspects.

5. Resolution 93/2020 – Ministry of Environment and Sustainable Development (Oficial Gazette 03.27.2020)

Extends until April 30, 2020 the validity of the Annual Environmental Certificates granted to Hazardous and Patogenic Waste Carriers and Operators within the framework of National Law 24,051 that would have operated from March 1st, 2020 and by virtue of being activities reached by the Decree 297/20.

The Annual Enviornmental Certificates granted to Hazardous and Patogenic Waste Carriers and Operators whose expiration operates before April 30, 2020 are included in the extension indicated in the previous paragraph.

It establishes the procedure to be followed, during the term of the isolation established by Decree 297/20, to obtain manifests for the transport of hazardous waste.

6. Resolution 78/2020 – Ministry of Transport (Official Gazette 03.27.2020)

Approves the certification model of affectation to activites and services declared essential in the emergency  by article 6, subsections 15 and 18 – in relation to the transport of goods, oil, fuel and LPG, which may be completed and printed  by the Carrier or generated through the website designed by the Ministry jointly with the NATIONAL COMMISION OF TRANSPORT REGULATION.

Some Comments

It is worth to analyze the effects of this situation (pandemic) and the regulations that provides for mandatory isolation and mandates that all activities – except those excepted – be ceased in their performance, not only of the contractual obligations but also in the fulfllment of the obligations arising from the Law.

In particular, it is worth to analyze in detail those activities that, if stopped, may cause damage to people or the environment.

Regarding hygiene and safety, Decree 297/20 expressely provides that employers shall guarantee the hygiene and safety conditions established by the Ministry of Health to preserve the health of the employees, which clearly implies that the activities necessary to guarantee these conditions must be mantained.

The activities related to the collection, transport and treatment of the urban solid, hazardous and dangerous waste are also mantained, so the industries that generate waste shall give adequate “regular” management.

However, in environmental matters, there can also be situations, such as current soil and grandwater remediation processes that are often carried out in the plant itself, which if they stop (they are not included within the excepted activities – except for mining) can cause or excerbate damage.

On this way, there is no limitation to file a well founded presentation before the Chief of the Ministers Cabinet and request with substantial grounds that a new exception has to be issued to the Decree 297/20 (the Decree itself authorizes the Chief of the Ministers Cabinet to do so).

Nevertheless, the Decree establishes that “people that shall attend a Force Majeure situation” are excepted from the restrictions, and in item 17 refers to “emergency care”.

On the other hand, and in addition to this exceptional regulatory framework, it should be borne in mind, the general principles of the Federal Civil and Commercial Code provide:

ARTICLE 1710.- Every person shall, as far as it depends on it:

1. a) avoid causing unjustified damage;

1. b) adopt, in good faith and in accordance with the circumstances, reasonable measures to prevent damage from occuring, or reducing its magnitude; if such measures prevent or diminish the magnitude of the damage for which a third party should be liable, it has the right to be reimbursed by the third party for the costs incurred, in accordance with the regulation of Unjust Enrichment;

1. c) do not exacerbate the damage, if it has already occured.

With this regulatory framework, shall be convenient to analyze each activity and specific situation in order to define the appropriate course of action to be taken.

If you have any further questions please contact covid@nyc.com.ar

This publication  has not and does not claim to have exhaustive nature. Due to the generality of its content it should not be considered as legal advice.