Summary of Environmental Law in Mexico

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13 Responding to Environmental Contamination

 

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13.1 Identification, Assessment and Prioritization of Sites

 

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No specific law governing the targeting and remediation of contaminated sites has yet been enacted in Mexico. The Secretariat of the Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales (SEMARNAT)) currently deals with contaminated sites on an ad hoc basis pursuant to its authority under the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y Protección al Ambiente) (hereinafter Ecology Law).

Standards

Article 78 of the Ecology Law specifically grants SEMARNAT the power to devise and implement ecological remediation programs. SEMARNAT may target or "list" a site for ecological remediation when the site shows signs of severe ecological imbalance or when an environmental degradation process is unfolding. As regards restoration zones within Protected Nature Areas, the Protected Nature Area Regulation under the Ecology Law, published in the Federal Official Gazette on 30 November 2000, contains a specific chapter establishing the required contents of the SEMARNAT restoration programs for such areas, as well as the studies to justify the respective declarations.

Executive Orders

Although SEMARNAT may target sites for remediation, only the Federal Executive may issue declarations establishing ecological restoration zones. When a site has been deemed an area of severe ecological imbalance, SEMARNAT, together with other competent agencies, must develop an ecological remediation program and, where warranted, issue land use control standards. The remediation program must, however, be approved by the Federal Executive, with the consent of the Finance Secretariat (Secretaría de Hacienda y Crédito Público (SHCP)), in accordance with the provisions of the Planning Law (Ley de Planeación). Under Article 78 Bis of the Ecology Law, the Federal Executive shall issue a formal decree in order to implement the remediation program or the land use standards. Executive decrees must include the following information:

  1. the exact boundaries of the area subject to ecological remediation;
  2. the actions to be carried out;
  3. the conditions relating to the use and exploitation of soil or of the natural resources, as well as the restrictions applying to those activities that might have an adverse impact on the environment;
  4. the terms of the remediation program and the rules governing the participation in the program by owners, civil organizations, indigenous communities or local governments; and
  5. the time set for carrying out the program.

Remediation programs are implemented by state and municipal authorities under the coordination and oversight of SEMARNAT.

Environmental Impact Assessments

Clean-up programs for facilities or sites that are to be abandoned must be laid out in the "specific" environmental impact assessment (EIA), the most stringent type of EIA, before construction or operation of a facility may start. Although there are no specific guidelines indicating which facilities must submit an EIA, it may be assumed that all highly hazardous undertakings and facilities that generate or handle hazardous waste are required to lay out a site abandonment and remediation program. See Chapter 7, "Environmental Impact Assessment", for further discussion on the requirements pertaining to 'specific' EIAs.

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13.2 Response and Cleanup Requirements

 

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Cleanup Policies

Cleanup requirements under Mexican law are shaped as broad anti-pollution policies under Article 136 of the Ecology Law. Neither implementing regulations nor Official Mexican Standards (Normas Oficiales Mexicanas (NOMs)) have yet been adopted. General soil pollution control standards under the Ecology Law grant SEMARNAT discretion to determine remediation standards on a site-by-site basis. All wastes that are deposited on or may infiltrate the soil must avoid or prevent: soil contamination; harmful alteration of soil biological processes; soil alterations which are likely to change its vocation, use or exploitation properties; and health hazards and related problems. Cleanup standards must agree with this general policy and vary according to the intended land-use and zoning of the site.

Voluntary Program

On the other hand, SEMARNAT has set up a program aimed at requesting cooperation from industries for the cleanup of abandoned hazardous waste sites, on a voluntary basis. Under the program SEMARNAT will have an administrative oversight role in cleanup actions while industries will be responsible for contractors and for carrying out the remediation activities that may be deemed necessary.

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13.3 Government Funds for Cleanup

 

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Mexico has no central program for government funding of site remediation. Instead, funds are allocated only on a site specific basis in accordance with the National Development Plan (Plan Nacional de Desarrollo), or amendments thereunder, with the approval of the SHCP.

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13.4 Liability

 

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Generally speaking, all violations of environmental laws and regulations are subject to administrative sanctions and, sometimes, to criminal penalties as well. Mexico has not yet implemented a regime that either identifies potentially responsible parties or assigns liability based on past or present pollution. However, the broad standards regarding remediation actions and enforcement of environmental provisions, set out under Articles 171 through 174 of the Ecology Law, grant SEMARNAT the authority to determine the liability of potentially responsible parties on an ad hoc basis.

Article 171 of the Ecology Law provides SEMARNAT with the authority to impose any of the following sanctions:

  1. fines ranging from 20 to 50,000 times the minimum daily wage in the Federal District (Distrito Federal);
  2. the temporary, permanent, partial or total closure of the facility;
  3. administrative arrest for up to thirty-six hours;
  4. the suspension or revocation of permits, concessions or licenses; and
  5. the seizure of instruments used in or resulting from the violation.

When SEMARNAT stipulates a time for the violation to be rectified, the failure to meet the deadline may result in additional fines for each day the violation continues. Daily fines imposed for continuing violations may not exceed the maximum fine of 50,000 times the minimum daily wage in the Federal District. In addition, offenders may be sentenced to jail terms ranging from one to nine years and fines ranging from 300 to 3,000 times the minimum daily wage pursuant to the Environmental Crimes Chapter under the Federal Penal Code. The application of administrative or criminal penalties does not preclude the possibility for the offender to be liable for any civil damages arising.

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13.5 Transfer Restrictions or Requirements

 

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Mexico's environmental laws do not impose any restrictions, requirements or disclosure duties on the transfer of contaminated properties. However, under Articles 1912, 1913 and 2142 of the Civil Code for the Federal District Regarding Common Matters and for the Entire Republic Regarding Federal Matters (Código Civil para el Distrito Federal en Materia Común y para toda la República en Materia Federal) (hereinafter Federal Civil Code), the seller of a property must indemnify the buyer for any damages arising from hidden defects of the property and for any harm that results from the seller's illegal actions (such as the improper disposal of waste).

The property seller is not responsible, however, for known or obvious defects. As for the buyer, he has an implied affirmative duty to conduct a diligent investigation prior to the land transfer and, therefore, he shall not be entitled to any compensation whatsoever on the part of the seller where he (the buyer) should have known of preexisting contamination. At present, Mexico has no formal or informal standards to protect parties from environmental liabilities arising from land purchases or transfers.

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13.6 Notification

 

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In accordance with Article 78 Bis of the Ecology Law, the declarations pertaining to the establishment of ecological remediation zones shall be published in the Federal Official Gazette (Diario Oficial de la Federación) and recorded in the Public Property Registry (Registro Público de la Propiedad).

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2003