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Waste management policies and regulations are set forth in two central pieces of legislation: the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y Protección al Ambiente) (hereinafter Ecology Law) and the Regulation Under the General Law of Ecological Balance Regarding Hazardous Waste (Reglamento de la Ley General del Equilibrio Ecológico y Protección al Ambiente en Materia de Residuos Peligrosos) (hereinafter Hazardous Waste Regulation). Both the Ecology Law and the Hazardous Waste Regulation are implemented through Official Mexican Standards (Normas Oficiales Mexicanas (NOMs)).
Jurisdiction over waste management issues is divided among federal, state and municipal authorities. At the federal level, the Secretariat of the Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales (SEMARNAT)) has exclusive jurisdiction over all hazardous waste management. States and municipalities are responsible for the regulation, management, authorization and enforcement of solid and non-hazardous waste standards.
Definition of Solid Waste
The term residuo, loosely translated as waste, is generally defined under Article 3 (XXXI) of the Ecology Law as any material generated through an extraction, mining, transformation, production, consumption, use, control or treatment process, whose quality prevents it from being re-used in the very process that generated it. Although the term solid waste is not specifically defined under the Ecology Law, all non-hazardous waste, regardless of its physical form, falls under the jurisdiction of the states, the municipalities and the Federal District (Distrito Federal).
Regulatory jurisdiction over the collection, storage, re-use, treatment and final disposal of non-hazardous solid and industrial waste has been specifically delegated under Article 7(VI) of the Ecology Law to state governments. In accordance with Articles 8(IV) and 135(II) of the Ecology Law, municipal governments are in charge of applying such regulations, as well as operating systems for the removal and final disposal of non-hazardous solid wastes. Non-hazardous solid waste standards imposed by states may be equal to or more stringent than the federal standards, but not less stringent.
NOM-083-ECOL-1996 regulates the design, construction and general conditions and standards for municipal solid waste landfills.
Article 134 of the Ecology Law establishes two central waste reduction policies:
Under the Ecology Law, SEMARNAT is charged with several waste reduction support activities, as is the Secretariat of the Economy (Secretaría de Economía (SE)). Solid waste reduction is also a core policy under the National Environment and Natural Resources Program (Programa Nacional de Medio Ambiente y Recursos Naturales) 2001-2006, prepared by SEMARNAT and intended to reduce the 17,824 tons inventoried through December 2001 to 10,000 tons by December 2006.
The Ecology Law does not specifically address household and solid waste landfill siting requirements. Rather the issue is addressed in general terms under the soil pollution prevention and land use provisions of the Ecology Law, whose Articles 134 through 144 provide general criteria that govern both hazardous and non-hazardous discharges and deposits or filtration of polluting substances or materials into the soil.
Soil Contamination Prevention Standards
Under Article 136 of the Ecology Law, all wastes that accumulate or are deposited on the soil or infiltrate it must meet the necessary requirements in order to avoid any harmful alteration of soil biological processes that are likely to alter its quality, use or exploitation potential. These general soil pollution control standards apply to: the planning and regulation of urban development; the operation of solid waste treatment and disposal facilities; the authorization of waste confinement facilities; and all solid waste collection, storage, re-use, treatment and disposal permits. All NOMs or implementing technical standards issued at the federal or state level must also be based upon the above criteria.
Land Use Norms/Standards
In addition to soil pollution control standards, the Ecology Law, under Article 98, sets forth several criteria regarding land use for the management of solid wastes. These criteria state that:
In addition, under Article 145 of the Ecology Law SEMARNAT is authorized to develop and promote zoning standards for hazardous and highly hazardous activities based on the topographic, seismic, geological, meteorological or climatic conditions of specific regions, their proximity to human settlements, possible environmental effects and existing infrastructure. Both hazardous and non-hazardous waste management issues fall within the general land use criteria.
NOM-083-ECOL-1996. In addition, NOM-083-ECOL-1996 establishes site conditions for solid waste landfills. This NOM provides binding standards with respect to the topographic, geologic, geo-hydrologic, permeability and aeration potential of sites designated for solid waste landfills.
Federal Jurisdiction. All solid waste landfills under federal jurisdiction are subject to the sanctions provided for under the Ecology Law. Possible federal sanctions, imposed by SEMARNAT, may include:
Failure to remedy the violation within the time allowed may give rise to further fines for each day the violation continues. Relapses are penalized with up to twice the amount of the original fine imposed.
State and Local Jurisdiction
State and local liability and enforcement practices vary from state to state. Local government sanctions are usually similar to federal penalties. The Mexican Constitution asserts that state sanctions may not exceed those contemplated by the federal government.
Hazardous waste control provisions are set forth under the Ecology Law and are further developed in the Hazardous Waste Regulation. Articles 150 to 153 of the Ecology Law regulate six different areas of hazardous waste issues: the classification and determination of hazardous wastes; the responsibility for their management and final disposal; the prevention and reduction of hazardous waste generation; jurisdiction; permitting regimes; and the export and import of hazardous wastes. The sanctions provided for under the Ecology Law also establish the basis for penalties under the Hazardous Waste Regulation.
Exclusive Federal Jurisdiction
Hazardous wastes fall exclusively under federal jurisdiction. The federal administrative agency responsible for the control and regulation of hazardous waste laws is SEMARNAT. However, SEMARNAT may work in coordination with state environmental agencies for the control of lowly hazardous wastes as provided in Article 11 of the Ecology Law.
Definition. Under Article 3 of the Ecology Law hazardous waste is defined as all waste, in any physical state, which, due to its corrosive, reactive, explosive, toxic, flammable, infectious or irritating biological properties, represents a hazard for the ecological balance or the environment. This general definition provides the basis for the acronym "CRETIB" which stands for Corrosive, Reactive, Explosive, Toxic, Flammable and Biologically Infectious, terms that are further defined in NOM-052-ECOL-1993. This NOM also establishes chemical and physical technical standards for determining whether specific wastes have any of the CRETIB characteristics. A second NOM, NOM-053-ECOL-1993, creates standards for the extraction tests used in determining whether certain wastes are hazardous. Finally NOM-087-ECOL-1995 provides additional standards for the classification, separation, confinement, storage, collection, transportation, treatment and final disposal of biologically infectious hazardous waste originated in hospitals.
Lists of Hazardous Waste
In addition to the CRETIB system, SEMARNAT, in coordination with other agencies, has issued four lists of hazardous wastes in Annexes 2, 3, 4 and 5 of NOM-052-ECOL-93. These lists classify approximately 144 hazardous wastes according to: (1) industry and process; (2) non-point sources; (3) raw materials in paint production; and (4) environmentally toxic leachate characteristics.
Article 150 of the Ecology Law states that the Hazardous Waste Regulation and the applicable NOMs must contain criteria and listings to identify and classify hazardous materials and waste by their degree of hazard, considering the characteristics and volumes thereof. They also must differentiate between low- and high-risk materials.
Incompatible wastes are defined under Articles 3, 14, 19, 31 of the Hazardous Waste Regulation as wastes that, upon coming into contact or mixed with any other waste, react, sometimes violently, by producing heat or pressure, fire or evaporation, hazardous particulate, gases or vapors. Chemical and physical standards for determining whether or not wastes are incompatible are determined in accordance with the technical standards set forth in NOM-054-ECOL-1993.
Overview. Mexican environmental law distinguishes between the generation and the handling of hazardous waste; this triggers different responsibilities primarily in connection with the permit and manifest system established under Article 151 Bis of the Ecology Law and the Hazardous Waste Regulation. In addition, SEMARNAT is responsible for issuing NOMs pertaining to the labeling and packaging of hazardous wastes.
Generators of Hazardous Waste
Article 3 of the Hazardous Waste Regulation states that the generators of hazardous wastes are those individuals or corporations that, as a result of their activities, produce hazardous wastes. Hazardous waste generators must obtain a permit from SEMARNAT and are responsible for determining whether or not the wastes produced are hazardous and must comply with the classification and extraction NOMs, essentially: NOM-052-ECOL-93; NOM-053-ECOL-93; NOM-054-ECOL-93 and NOM-087-ECOL-1994. Articles 8 and 14 of the Hazardous Waste Regulation also require generators to register in the SEMARNAT waste generators registry keep monthly records of hazardous wastes generated and submit semiannual reports to SEMARNAT on the movements of hazardous wastes.
In addition, generators must use carriers who bear delivery, receipt and disposal manifests, which must be signed by the final recipient and returned to the generator within 30 calendar days. The generator is further required, under the Hazardous Waste Regulation, to notify SEMARNAT should the signed manifests from the final recipient not be returned within the specified time frame. Generators are ultimately responsible for ensuring that transportation and final disposal of their hazardous waste comply with the Hazardous Waste Regulation and any applicable NOMs and that all persons involved in the handling of such wastes are duly registered with SEMARNAT.
Handling of Hazardous Waste
Article 151 of the Ecology Law states that the responsibility for the handling and disposal of hazardous waste lies with the generator. Under Article 9 of the Hazardous Waste Regulation, the "handling" of hazardous waste includes all operations dealing with the storage, collection, transportation, confinement, re-use, treatment, recycling, incineration and final disposal of hazardous wastes. A special permit from SEMARNAT is required for the handling of hazardous waste based on the environmental impact assessment (EIA) made by SEMARNAT. Environmental protection standard NOM-133-ECOL-2000 sets the specifications for the handling of polychlorinated biphenyls (PCBs).
Article 147 Bis of the Ecology Law states that anyone who carries on high-risk activities, pursuant to the corresponding Regulation, must have environmental risk insurance. For this purpose, SEMARNAT will create a National Environmental Risk Insurance System, with the approval of the Secretariats of the Interior, Energy, Economy, Health, and Labor and Social Welfare.
Treatment is defined under Article 3 of the Hazardous Waste Regulation as the action of transforming wastes, through which waste characteristics are changed. Treatment of hazardous waste belongs to the "hazardous waste handling" category and, therefore, all treatment activities must be permitted by SEMARNAT.
General treatment methods are not defined under Mexican environmental laws and regulations. Where necessary, waste must be treated prior to its final disposal. Treatment requirements, however, are generally established in the individual handling permits. In addition, NOM-052-ECOL-1993 establishes maximum permissible limits (LMPs) of concentrations of residual chemicals that may be disposed of. The ultimate responsibility for ensuring that all disposed wastes meet the standards set forth under NOM-052-ECOL-1993 and NOM-057-ECOL-1993 lies with those involved in the final disposal. The list of maximum permissible limits for toxic wastes is provided for in Annex 5 of NOM-052-ECOL-1993. Hospitals and health services facilities shall follow the standards set by NOM-087-ECOL-95 regarding treatment of biological-infectious hazardous waste.
Storage of hazardous waste is defined as any action involving the temporary retention of wastes until these can be processed for re-use, are handed for collection or properly disposed of. The definition of final disposal (discussed below) is independent from that of storage. Because storage belongs to the hazardous waste handling category, appropriate handling permits must be obtained prior to operating a temporary storage facility.
In general, temporary storage containers must be properly labeled and meet the conditions established in the technical standards. Pursuant to Article 14 of the Hazardous Waste Regulation, containers must be designed so as to avoid loss and spillage during loading, unloading and transportation and prevent operators from being exposed to hazardous wastes; in addition, they must be properly labeled. Even though no NOMs have been established regarding hazardous waste storage containers in general, there are existing NOMs applying to transportation containers. In particular, NOM-087-ECOL-1995 regulates the packaging of biological-infectious hazardous waste.
The temporary storage of hazardous waste in either closed or open areas must meet the minimum conditions set out in the NOMs and under Articles 15 to 21 of the Hazardous Waste Regulation, which establish a manifest system requiring all entrances and exits of hazardous wastes into and from storage areas to be recorded. In particular, NOM-087-ECOL-1995 regulates the storage of biological-infectious hazardous waste.
Disposal of hazardous wastes is defined under Article 3 of the Hazardous Waste Regulation as the action of permanently depositing wastes in adequate places and under appropriate conditions, so that harm to the environment is avoided. Because waste disposal belongs to the handling category, permits must be obtained prior to operating a final disposal facility. Individuals and corporations involved in the final disposal of hazardous wastes are responsible for any necessary pretreatment. Final disposal may occur in three ways: (1) controlled confinement; (2) confinement in stable geological formations; and (3) agrochemical containers. Controlled confinement, also referred to as manmade landfill, is defined as a final disposal engineered facility that ensures the definitive isolation of hazardous wastes. Confinement in a stable geological formation is defined as a final disposal facility in a natural waterproof structure that ensures the definitive isolation of hazardous wastes. In particular, NOM-087-ECOL-1995 regulates the final disposal of biological-infectious hazardous waste.
Controlled Confinement Facility Design
NOM-057-ECOL-1993 regulates the design and construction of hazardous waste controlled confinement facilities, their leachate collection systems, sump capacity, ventilation systems and roofing. Confinement facilities must be operated in accordance with the record keeping and manifest requirements and waste handling procedures set out in NOM-058-ECOL-1993. Waste that has been confined in a final disposal facility may not be removed unless temporarily stored there for emergency reasons. Agrochemical containers are not specifically defined. Nevertheless, the Hazardous Waste Regulation specifies that agrochemical containers may only be used to confine agrochemical wastes or their packaging.
Under Mexican environmental laws waste reduction is dealt with as either recycling or re-use. In accordance with Article 152 of the Ecology Law, SEMARNAT shall promote the prevention and reduction of hazardous waste generation, as well as its re-use and recycling. Both activities fall within the category of "hazardous waste handling" and therefore require permits. Waste reduction actions are an integral part of the National Development Plan (Plan Nacional de Desarrollo) and the programs established by each Secretariat for the purpose of implement the Plan.
Site selection for final disposal facilities must comply with the relevant technical and ecological standards, as well as the general soil contamination and land use policies set out under Article 105 of the Ecology Law and Article 32 of the Hazardous Waste Regulation. Technical standards have been issued under NOM-CRP-055-ECOL-1993, which spells out specific technical conditions in regard to: hydro-geology (surface and underground), ecology, climate, location near population centers, seismology, topography and the access to final disposal facilities.
In accordance with the general provisions of the Ecology Law and the Hazardous Waste Regulation, all violations under the hazardous waste laws are subject to administrative sanctions. The Hazardous Waste Regulation does not distinguish between past and present owners and operators for the purposes of assessing liability. Specific administrative penalties for offenses under hazardous waste laws include the following:
In addition, all operating permits, licenses and authorizations are subject to revocation at SEMARNAT's discretion, where serious or repeat infringements are committed. Failure to comply with the administrative requirements imposed to remedy the violations may result in further fines for each day the violation continues. In the event that the same offense is committed twice within the same year, a fine for twice the amount of the original fine may be imposed. On the other hand, administrative penalties provided for under Articles 58 through 60 of the Hazardous Waste Regulation are independent from any civil and criminal penalties that may arise from other relevant laws and regulations.
Under Article 27 of the Political Constitution of the United States of Mexico (hereinafter Mexican Constitution), all radioactive minerals belong to the Nation. The development and regulation of all nuclear energy activities are under the exclusive control of the Nation.
Activities involving the development and use of nuclear fuels may only be carried out for peaceful purposes. There are two types of nuclear activities: (1) nuclear energy development, which is exclusively reserved to the Federal Electricity Commission (Comisión Federal de Electricidad (CFE)), a decentralized state-controlled entity coordinated by the Energy Secretariat (Secretaría de Energía (SENER)) and (2) non-energy related research activities, which may only be undertaken by duly authorized universities, institutes, research centers and public entities.
Nuclear Energy Law
The Regulatory Law under Article 27 of the Constitution in Regard to Nuclear Matters (Ley que Regula el Artículo 27 de la Constitución en Materia Nuclear) (hereinafter Nuclear Energy Law) governs all nuclear exploitation, development and mining of radioactive minerals. In addition, the Nuclear Energy Law regulates the development of nuclear fuels, nuclear energy uses, scientific and technical nuclear research and the nuclear industry.
Nuclear Liability Law
Civil liability arising from nuclear accidents or damages is governed by the Law Regarding Civil Liability for Nuclear Damages (Ley de Responsabilidad por Daños Nucleares) (hereinafter Nuclear Liability Law), which is different from the Nuclear Energy Law.
Jurisdiction over all treatment, storage and disposal of radioactive wastes belongs to the National Commission of Nuclear Security and Safety (Comisión Nacional de Seguridad Nuclear y Salvaguardias) (hereinafter the Nuclear Safety Commission), a regulatory agency within SENER. The Nuclear Safety Commission has been granted administrative and enforcement powers over the nuclear industry and has the authority to issue health and safety NOMs pertaining to the handling and disposal of radioactive minerals.
Definitions. Radioactive waste is defined by a series of terms set forth in both the Nuclear Energy Law and the Nuclear Liability Law. Both the characteristics of radioactive wastes and a listing of these are provided, as in the case of hazardous waste. Radioactive waste, deemed an inherently dangerous nuclear substance, broadly refers to those radioactive materials produced during the manufacturing or use of nuclear fuels, or those materials that have become radioactive due to radiation exposure.
Permit Required. In order to engage in any nuclear activity, including the acquisition, import, export, possession, use, transfer, transport, storage or final disposal of radioactive materials or wastes, a license from the Nuclear Safety Commission is required. This Commission must ensure that applicants comply with the technical safety standards set forth in the applicable NOMs and may grant permits on the condition that preventive safeguards be implemented. Licensees must register in the National Registry for the Control of Nuclear Fuels and Materials (Registro Nacional de Control de Combustibles y Materiales Nucleares), kept by the Nuclear Safety Commission.
The NOMs applicable to nuclear energy are: NOM-001-NUCL-1994, establishing the factors for calculating dosage equivalent; NOM-002-NUCL-1994, on leak testing and hermeticity of sealed sources; NOM-003.NUCL-1994, on the classification of facilities or laboratories using open sources; NOM-004-NUCL-1994, on the classification of radioactive waste; NOM-005-ECOL-1994, establishing the annual dose limits and concentrations derived from air of radionuclides (CDA) for occupationally exposed personnel; NOM-006-NUCL-1994, containing criteria for the application of annual dose limits for critical public groups; NOM-007-NUCL-1994, establishing the radiological safety requirements to be observed in permanent implants of radioactive material for human therapeutic uses; NOM-008-NUCL-1994, containing the surface contamination with radioactive material; NOM-012-NUCL-2002, containing the requirements and calibration of ionizing radiation monitors; NOM-013-NUCL-1995, containing the radiological safety requirements for releasing patients to whom radioactive material has been administered; and NOM-018-NUCL-1995, establishing the methods for determining the activity concentration and total activity in bundles of radioactive waste.
Other nuclear energy NOMs include: NOM-019-NUCL-1995, containing the requirements for radioactive waste incineration facilities; NOM-020-NUCL-1995, requirements for radioactive waste incineration facilities; NOM 021-NUCL-1996, requirements for the leach testing of specimens of solidified radioactive waste; NOM-022/1-NUCL-1996, requirements for near-surface definitive storage facilities of low-level radioactive waste; NOM-022/2-NUCL-1996, requirements for near-surface definitive storage facilities of low-level radioactive waste; NOM-022/3-NUCL-1996, requirements for near-surface definitive storage facilities of low-level radioactive waste; NOM-024-NUCL-1995, requirements and calibration of dosimeters for direct reading of electromagnetic radiation; NOM-025/1-NUCL-2000, requirements for industrial radiography equipment - part 1, general requirements; NOM-025/2-NUCL-2000, part 2, operation; NOM-026-NUCL-1999, medical oversight of personnel occupationally exposed to ionizing radiation; NOM-027-NUCL-1996, containing specifications for the design of Type II radioactive facilities, class A, B and C; NOM-028-NUCL-1996, on the handling of radioactive waste in radioactive facilities using open sources; NOM.031-NUCL-1999, requirements for the qualification and training of personnel occupationally exposed to ionizing radiation; NOM-032-NUCL-1997, technical specifications for the operation of teletherapy units using radioactive material; NOM-033-NUCL-1999, technical specifications for the operation of teletherapy units, linear accelerators; NOM-034-NUCL-2000, selection, qualification and training requirements for nucleoelectric center staff; NOM-035-NUCL-2000, containing limits for a solid waste to be deemed radioactive waste; and NOM-036-NUCL-2000, containing the requirements for radioactive waste treatment and conditioning facilities.
All radioactive waste related activities, including storage, transportation and disposal, must be carried out according to the nuclear safety policies established by the Nuclear Safety Commission. Environmental protection, which encompasses the protection of workers as well as that of the general public against exposure, is at the core of nuclear safety. Under Article 154 of the Ecology Law, SEMARNAT has the authority to require an environmental impact assessment (EIA) for all nuclear activities, including all treatment, storage and disposal activities.
Neither the Nuclear Energy Law nor the Nuclear Liability Law provide for specific radioactive waste reduction policies.
All radioactive waste disposal must comply with the general land use and soil conservation provisions established under the Ecology Law and the technical standards issued by the Nuclear Safety Commission. Authorization to dispose of radioactive waste requires three main permits: (1) an environmental impact assessment (EIA) approved by the National Institute of Ecology (Instituto Nacional de Ecología (INE)), which is part of SEMARNAT; (2) a special disposal permit granted by the Nuclear Safety Commission; and (3) a permit from the Health Secretariat (Secretaría de Salud (SSA)). Disposal of radioactive wastes is strictly prohibited both in non-hazardous and hazardous waste landfills. NOM-055-ECOL-1993 establishes the requirements that must be met by sites intended for the controlled confinement of hazardous wastes, excluding radioactive wastes.
Civil liability for nuclear damages is set forth under the Nuclear Liability Law. Although liability for specific harm arising from radioactive waste is not specifically contemplated, the general terms of the law provide for all potential radioactive damages.
Nuclear damage is defined under the Nuclear Liability Law as any loss of human life, personal injuries, or property damages resulting, either directly or indirectly, from the radioactive, toxic, explosive or other hazardous properties, or any combination thereof, of any nuclear fuels, their products or radioactive wastes from any nuclear facility. A nuclear facility includes nuclear reactors, manufacturers of nuclear materials, as well as radioactive waste treatment, storage, and re-use facilities.
The Nuclear Liability Law does not specifically provide rules governing the compensation or liability for damages arising from the improper handling or disposal of radioactive waste. Instead, liability is borne by operators of nuclear facilities in the event of a nuclear accident. The term operator implicitly includes the transport or storage of radioactive materials.
Strict liability is assigned the operator of a nuclear facility for all damages arising from a nuclear accident. An exception is made in cases where the nuclear accident is the result of a war or an act of god. In addition, if the operator can prove contributory negligence or fraud on the part of the aggrieved party, the liability for damages may be reduced or eliminated altogether. Operators of radioactive waste facilities, however, have limited responsibility for damages arising from the storage of nuclear substances. Where there is more than one operator, all operators are joint and severally liable.
In spite of being assigned strict liability in many a circumstance, operators' liability is limited under Article 9 of the Nuclear Liability Law to 100,000 pesos for damages to third party property. Wrongful death claims are limited to 1000 times the minimum daily wage in the Federal District (Distrito Federal). Total disability claims are capped at 1500 times the minimum daily wage in the Federal District and partial disability compensation is limited to 500 times the minimum daily wage in the Federal District. Actions against operators for damages arising from nuclear accidents occurring within their control prescribes after 10 years. Application of civil sanctions does not preclude administrative or criminal penalties from being imposed, where warranted.