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The general legal framework for preventing and controlling atmospheric pollution is established under Articles 110 through 116 of General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente) (hereinafter Ecology Law). These provisions establish: general air quality criteria; the powers of the Secretariat of the Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales (SEMARNAT)), as well as those of state authorities; a general permitting regime; a special authorization regime for federal stationary sources; air quality zones; and a tax incentive program for industries that install release control equipment. In addition, the Ecology Law contemplates administrative law enforcement mechanisms.
The regulation implementing the air pollution provisions set out under the Ecology Law is the Regulation under the General Law of Ecological Balance and Environmental Protection for the Prevention and Control of Pollution Generated by Automotive Vehicles Circulating in the Federal District and Outlying Municipalities (Reglamento de la Ley General del Equilibrio Ecológico y la Protección al Ambiente para la prevención y control de la contaminación generada por los vehículos automotores que circulan por el Distrito Federal y los municipios de su zona conurbada) (hereinafter Air Regulation). This regulation spells out broad anti-pollution goals, as well as policy considerations. Like other Mexican environmental regulations, however, this Air Regulation is ultimately implemented through Official Mexican Standards (Normas Oficiales Mexicanas (NOMs)).
Air Regulatory Agencies
Four federal agencies are granted jurisdiction over air issues: SEMARNAT, the Secretariat of Communications and Transport (Secretaría de Comunicaciones y Transportes (SCT)), the Secretariat of Health (Secretaría de Salud (SSA)) and the Secretariat of the Economy (Secretaría de Economía (SE). SEMARNAT regulates stationary sources under federal jurisdiction, issues all NOMs aimed at implementing the air protection Regulation and is charged with all enforcement and oversight activities pertaining to the control of atmospheric pollution. SCT has administrative authority over all federal public transport emission verification centers. SSA issues the NOMs for criteria to be taken into account for assessing air quality. In addition, SE, in conjunction with SEMARNAT, establishes the NOMs pertaining to the maximum pollutant release levels for automotive vehicles, both new and used. As for states and municipalities, they have their own local air pollution controlling agencies, as well.
The federal government has jurisdiction to regulate all air pollution sources, as well as to prevent and control air pollution sources and zones of its jurisdiction. SEMARNAT shall issue the NOMs establishing the quality of air, as well as the maximum allowable limits (límites máximos permisibles (LMPs)) for odor, gas, and solid particulate releases into the atmosphere. In addition, SEMARNAT has the authority to formulate air criteria and intervene in international and interstate air issues; its jurisdiction encompasses all fixed sources and areas under federal jurisdiction.
State and Municipal Jurisdiction
States have jurisdiction to apply their State laws and to prevent and control atmospheric pollution from industries and mobile sources not under federal jurisdiction. On the other hand, municipalities have jurisdiction to prevent and control emissions by mercantile and services point sources, i.e. restaurants, with the collaboration of State authorities when State law require it.
Definition of a Stationary Source
A stationary source is defined as any facility, established in a specific site, that engages in any industrial, commercial or service operations or processes, or in activities that generate or could generate air polluting emissions. The Air Regulation applies exclusively to those fixed sources that are under federal jurisdiction. In accordance with Article 111 Bis of the Ecology Law the following are considered as fixed sources under federal jurisdiction:
States and municipalities are in charge of permitting and regulating fixed sources under local jurisdiction.
Fixed Source Standards
Mexico has implemented a number of LMPs for fixed source emissions from specific industries in the NOMs pertaining to: sulfuric acid production plants, NOM-039-ECOL-1993; cement factories, NOM-040-ECOL-1993; solid particulate emissions, NOM-043-ECOL-1993; dodecyl benzene sulphonic acid production plants, NOM-046-ECOL-1993; volatile organic compounds from oil refineries processes, NOM-075-ECOL-1995; NOx for fossil fuels for direct and indirect heating equipment by combustion, NOM-085-ECOL-1994; fuels for stationary and mobile sources, NOM-086-ECOL-1994; gasoline service stations in the Valley of Mexico, NOM-092-ECOL-1995; processes for chemical recuperation on paper mills, NOM-105-ECOL-1995; glassworks, NOM-097-ECOL-1995; and volatile organic compounds from painting processes for new automobiles, trucks and passengers units, NOM-121-ECOL-1997.
Generally speaking, fixed sources may not exceed the industry specific LMPs set forth in the NOMs. In addition, stationary sources must:
Sole Environmental License
Through 1995, the environmental regulation of industry was carried out at different administrative windows, which resulted in a loss of time to build and operate a business. This situation was rectified with the Sole Environmental License (Licencia Ambiental Única (LAU)) for fixed sources under federal jurisdiction. Replacing the operating license, the LAU may include under one process the environmental impact and risk studies, air pollution releases, hydraulic services and the generation and handling of hazardous waste, when air pollutant is or will be released during the production process.
The LAU is compulsory for new enterprises and for those existing businesses that need to begin compliance. It is optional for businesses that have operating licenses, which modify the production conditions for which the license had been issued.
On 14 February 2000, the State Law of Ecological Balance and Environmental Protection was published in the official state journal. Under the Law, 124 company files were transferred, which had an operating licenses or LAU and fell under state jurisdiction. Presently, SEMARNAT has a roster of 30 companies with operating licenses and 15 with LAUs.
Stack Emissions and Monitoring
All fixed sources under federal jurisdiction are required to release their emissions through chimneys or stacks. The total emissions of a fixed source with multiple stacks is the sum of all emissions from each of the individual stacks. Fixed sources must maintain sampling platforms on the stacks and calibrate testing equipment in accordance with the applicable NOMs. Release monitoring and stack samples, in accordance with the relevant NOMs must also be performed.
Open air burns in areas under federal jurisdiction are allowed only with special permission granted by SEMARNAT. Applicants must provide a diagram showing the location of the property and indicating the exact site where the burns will take place, a schedule specifying the date and time of the scheduled burns and the types and quantities of substances to be burned.
A mobile source includes all aircraft, helicopters, railways, street cars, tractor-trailers, buses, trucks, cars, motorcycles, boats, non-fixed equipment and machinery with combustion or similar engines that generate or may generate atmospheric contaminant emissions while in operation. Although the definition of a mobile source includes almost any moving vehicle, the Air Regulation and, to a lesser extent the NOMs, deal primarily with automobile and truck emissions.
Mobile sources are generally prohibited from releasing any odors, gases or solid or liquid particulate that exceed the LMPs set forth in the applicable NOMs. Most of the NOMs in force that deal with mobile sources set LMPs for hydrocarbon and carbon monoxide releases from diesel and gasoline fueled automotive vehicles. Some of the NOMs, however, provide standards for engines which involve other mobile sources beside vehicles. SEMARNAT has adopted the following NOMs for mobile sources: NOM-CCAT-003-ECOL-93, NOM-CCAT-004-ECOL-93, NOM-CCAT-007-ECOL-93, NOM-CCAT-008-ECOL-93, NOM-CCAT-010-ECOL-93, NOM-CCAT-011-ECOL-93, NOM-CCAT-012-ECOL-93, NOM-CCAT-013-ECOL-93, NOM-CCAT-014-ECOL-93, NOM-076-ECOL-94, NOM-086-ECOL-94, NOM-077-ECOL-94, NOM-041-ECOL-1999, and NOM-042-ECOL-1999.
SE has established NOMs governing new car emissions pursuant to the provisions of Article 111 (IX) of the Ecology Law. To this end, a release verification process has been set up by both SEMARNAT and SE. Manufacturers of new automobiles must ensure that their vehicles comply with the emissions, components and equipment standards set forth in the applicable technical NOMs. New automobiles must be certified as to compliance with emission standards.
Federal Public Transportation
Federal Public Transportation services are authorized through concessions granted by SCT. Federal Public Transportation concessionaires must ensure that the emissions of their vehicles do not exceed the LMPs. All Federal Public Transportation vehicles must be certified for LMP compliance at SCT authorized verification centers. Where verification data show non-compliance, owners are responsible for having vehicles repaired and verified anew. License plates of vehicles that fail to comply with emission standards are not renewed. SEMARNAT may also request that SCT suspend or cancel circulation permits for federal public transport vehicles that repeatedly violate the Air Regulation or LMPs.
Federal Public Transport Verification Centers
Special permission from the SCT must be obtained to operate an emission verification center for federal public transportation vehicles. Vehicle verification centers must operate in accordance with SCT procedures and keep their facilities and equipment in good working condition. Center staff must have sufficient technical training to be able to perform the verifications.
Federal District Vehicle Emission Program
In addition to the mobile source provisions contained in the Air Regulation and the corresponding NOMs, the Federal District (Distrito Federal) has issued its own regulations for vehicle emissions. The Regulation under the General Law of Ecological Balance and Environmental Protection for the Prevention and Control of Contamination Generated by Automotive Vehicles Circulating in the Federal District and Surrounding Metropolitan Areas (Reglamento de la Ley General del Equilibrio Ecológico y la Protección al Ambiente para la Prevención y Control de la Contaminación Generada por los Vehículos Automotores que Circulan por el Distrito Federal y los Municipios de su Zona Conurbada) prohibits all automobiles from being driven in Mexico City one day a week.
Administrative liability for air regulation offenses are established under the Ecology Law and are further developed under the Air Regulation. Generally speaking, all "violations" under the atmospheric pollution provisions of the Ecology Law, the Air Regulation or the corresponding NOMs are subject to administrative sanctions, which include the following: (1) fines ranging from 20 to 50,000 times the minimum daily wage in the Federal District; (2) temporary, permanent, partial or total plant closure; and (3) administrative arrest for up to 36 hours. Administrative sanctions do not preclude application of criminal or civil sanctions.
Fines for up to forty thousand times the minimum daily wage (twice the maximum amount of the original penalty) may be imposed to repeat offenders. SEMARNAT may, in its discretion, modify or revoke the fines imposed where the sources of pollution are remedied. SEMARNAT may only sanction those violations that fall under federal jurisdiction. State environmental agencies are responsible for enforcing regulations under their own jurisdiction. Both administrative inaction and abuse may be appealed through an amparo action. See Chapter 1 for further discussion of the amparo recourse.
Request for Technical Opinion and Popular Complaint
Where the violation causes third-party damages or nuisance, any interested party may request a technical opinion from SEMARNAT, which may be used as evidence in a court of law. In addition, any person may file a popular complaint with the corresponding state and local authorities regarding any fact, omission or action that violates the applicable atmospheric pollution control laws and regulations and is likely to cause environmental harm. See Chapter 6.2 for a detailed discussion of the popular complaint process.