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MEXICAN ENVIRONMENTAL LAWS, REGULATIONS AND STANDARDS
- PRELIMINARY REPORT OF EPA FINDINGS
INTRODUCTION
Since January 1991, EPA's Office of General Counsel has
undertaken a detailed review of the Mexican environmental legal
regime. In early April, as part of this effort, a mission of ten
lawyers from Office of General Counsel and Office of Enforcement,
including a State Department lawyer, visited Mexico to study
Mexican environmental laws, regulations, and standards, assess
compliance monitoring and enforcement, and share information on
U.S. practices in the areas of air pollution, water pollution,
hazardous waste pollution and environmental impact assessment.
They met with SEDUE1 officials and officials from the Ministries
of Health and Commerce and with the National Water Commission,
spoke with environmental lawyers, and visited several factories.
In their evaluation of the Mexican environmental legal regime,
project participants used their knowledge of U.S. environmental
laws as a point of reference and attempted, in so far as
possible, to compare the two regimes.
The research indicates that Mexico has a strong commitment
to protecting its environment which is reflected in: budgetary
and staff increases, particularly in the areas of inspection and
enforcement; efforts to ensure that new sources meet pollution
standards comparable to U.S. environmental standards; and
significant enforcement actions, especially plant closings,
designed to bring existing sources into strict compliance with
environmental laws.
CONCLUSIONS
Mexico's environmental laws, regulations and standards are
in many respects similar to those in the United States. The
comprehensive 1988 General Law of Ecological Equilibrium and
Environmental Protection (the "General Ecology Law") embodies
principles similar to ours, and the regulations and technical
standards implementing this law take an approach comparable to
that in the United States. There are some aspects of the United
States regulatory regime which are not yet covered, such as
Superfund, and the regulation of underground storage tanks.
s counterpart in Mexico is the Secretaria de Desarrollo
Urbano y Ecologia ("SEDUE"), or, Ministry of Urban Development
and Environment. SEDUE has three sub-secretariats,'one of which
is the Environment.
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SEDUE has indicated it intends to address these issues in the
near future. . ':
New facilities in Mexico must comply with the new
environmental regime, which means that new Mexican investments or
alterations to existing facilities in Mexico are subject to
standards which are in general comparable to those in the United
States. Mexican officials have stressed that the country is
committed to ensuring new source compliance and to "growing
clean." Where no standard exists for certain sources, Mexican
officials have indicated that they may include limitations in the
individual facility permits which are similar to those in use in
the United States.
United states and Mexican practice differs mostly in the
degree of compliance monitoring and enforcement. While major
Mexican industrial facilities; have permits, over 90% of all
industrial facilities, particularly smaller ones, reportedly do
not. Monitoring facilities are still sparse outside Mexico City,
although Mexico does plan to establish monitoring networks which
will cover 60% of the population. Until recently, SEDUE had only
109 inspectors country-wide, nine for Mexico City and 100 for the
rest of the country. Mexican officials are determined to remedy
the situation, and World Bank funds are expected to be available
to assist. Already SEDUE has hired 100 more inspectors, 50 for
Mexico City and 50 for the border area.
In the past year, Mexico has taken strong measures to bring
existing sources into compliance with its environmental
regulations and standards and to demonstrate its commitment to
enforcing its laws. These measures include the closing during
the past two years of over 900 plants on a temporary or permanent
basis, the permanent closing of a PEMEX refinery and permanently
closing all 24 military facilities. This year alone, from
January through May 15, SEDUE conducted over 275 inspections in
the metropolitan area of Mexico City, resulting in 102 partial
closings, 104 temporary closings and 2 permanent closings; 34 of '
the inspected facilities were identified as being in compliance.
SEDUE plans to continue the accelerated rate of plant inspections
and closings in other parts of Mexico and to develop compliance
schedules with existing sources. In particular, it has been
inspecting maquiladora plants at an accelerated rate and closing
those found to be in non-compliance. Some nongovernmental
environmental organizations in Mexico are recognizing the
seriousness of the commitment that is being shown and have
commented favorably on it in the press.
SEDUE's environmental investment budget suffered a very
sharp decline in 1987, but rose again significantly in 1990. The
1991 budget, at $38.9 million, is more than three times the 1990
budget and exceeds the highest spending level achieved prior to
the budgetary decline. Out of the total 1991 budget, $4.27
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million is targeted to be spent on inspection, monitoring and
enforcement, including $2.77 million for monitoring and
inspection of air and water sources. SEDUE's budget is expected
to grow beyond this year's commitment if a pending loan from the
World Bank is approved. Clearly, Mexico needs significant new
resources to carry out needed compliance monitoring and
enforcement efforts. ' ' : •• •
Mexico's Cultural Differences and Civil Law System
While conducting any comparative analysis of U.S. and
Mexican environmental laws, it is important to note that the
laws, regulations and standards of each country are enacted,
developed, carried out and enforced within 'different legal
systems and frameworks. The United States has a common law
tradition, while Mexico has a civil law tradition. This limits
the degree to which the two environmental law regimes can be
neatly compared.
The principal difference between the two legal systems lies
in the almost exclusive reliance within the Mexican system upon
administrative proceedings as opposed to litigation for
enforcement. This means a far less active role for the Mexican
judiciary as compared with the U.S. judiciary.
RelationshipsAmong the New General Ecology Law. Regulations, and
Technical Norms
The Mexican environmental regime has been established
pursuant to Article XXVII of the Mexican constitution which
refers directly to "all natural resources." Mexico's General
Ecology Law which supersedes earlier environmental statutes,
covers pollution control, natural resource conservation,
environmental impact and risk assessment, as well as a zoning
mechanism to protect ecological values. The comprehensiveness of
the Mexican statute contrasts with the United States
environmental legal regime in which there are separate statutes
for air pollution, water pollution, solid waste disposal,
environmental impact assessment, and various natural resource
issues.
The 1988 General Ecology Law provides general criteria and
policy guidance for developing specific regulatory regimes, and
leaves wide discretion to SEDUE to develop the details of
environmental programs through regulations and technical
standards. Since 1988, four "reglamentos" have been signed by
the President in a number of important areas: environmental
impact assessment, air pollution (national), air pollution
(Mexico City), and hazardous wastes. A new regulation dealing
with water pollution has been drafted and is expected to be
released within several months. A 1979 regulation addresses
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marine contamination. These regulations set forth general
requirements.
Technical ecological standards or norms ("NTEs") implement
the regulations and the General Ecology law. They are scientific
or technical rules which set forth the requirements, procedures,
conditions and limits that must be met. As distinct from the
regulations, they provide numerical limits or requirements. As
of November 1990, 59 NTEs had been developed for the purpose of
fully implementing the regulations. SEDUE's efforts to develop
NTEs are ongoing. Since November 1990, several additional
standards involving source categories for water have been
approved by the Secretary of SEOUE. Other NTEs, particularly in
the air and hazardous waste pollution areas, are slated to be
presented for approval later in the year.
The health-based numbers upon which air and water pollution
standards are based are developed by the Department of Health.
SEDUE then translates these numbers into legally-enforceable
standards and circulates these within the Mexican government.
They are also sent to state and municipal governments and
attempts are made to reach out to the scientific, professional
and educational communities1 SEDUE indicated that no standard is
developed without a close examination of what has been done in
the United States to address the same problem. :
Mexican industry has a role in standards formulation and is
consulted by SEDUE about proposed standards and their effective
dates as these affect particular economic sectors or industries.
This negotiation process is justified on the basis that there
exists, in most Mexican industries, a wide range of operations in
terms of size. Such a policy; serves to. protect smaller, Mexican
industries against the technology and greater resources of the
multinationals (which may, in any event, adhere to a more
stringent standard applied for internal business reasons on a
world-wide basis). Such negotiations could result in the
enactment of standards lower than those sought by SEDUE, but
SEDUE insists this happens in only a small number of cases.
The Role of Public Participation in Mexico
The public plays a significant role in the United States in
the development, implementation and enforcement of environmental
regulations. As compared with the United States, the public in
Mexico plays a relatively small role in the enactment and
enforcement of environmental laws, regulations-and standards.
This was noted as a weakness of the Mexican system and Mexican
authorities have given assurances of their desire to involve the
public to a greater degree. SEDUE views the issue of public
participation to be bound inextricably with the problem of
inadequate resources. SEDUE is hopeful that through World Bank
and other assistance, resources will be made available to study
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how the public can become more involved in decision-making and
enforcement, and to implement those recommendations.
Environmental Law of Mexican States
•-• Eighteen of the 31 Mexican states1 (including three states
along the U.S.-Mexican border) plus the Federal District have
recently adopted their own environmental statutes. These are the
states of: Aguascalientes,••Coahuila, Colima, Durango,
Guanajuato, Guerrero, Hidalgo', Jalisco, Nuevo Leon, Morelos,
Queretaro, Quintana Roo, San Luis Potosi, Sonoma, Tabasco,
Veracruz, Yucatan, and Zacatecas. These laws have been issued
pursuant to Mexico^s General Ecology Law. It is expected that
Mexican states will be able to assume more : responsibility for
environmental protection inithe future. |
Enforcement
The General Ecology Law vested authority to enforce
environmental laws, regulations and standards primarily in SEDUE.
The* top management and staff of SEDUE is a dedicated group of
professionals with the will to mount a credible and effective
environmental enforcement program. This is most recently
reflected by the closure this year of a large number of
industrial plants and facilities including:the permanent closure
of a large PEMEX facility near Mexico City:for failure to comply
with environmental regulations and standards. ;
In fact, the number of; inspections conducted in Mexico has
been increasing since 1982. In the period 1982-84, there were
.1,209 inspections; from 1985-88, 3,525 inspections with fines
imposed on 179 plants; and from 1988-90, 5,405 inspections under
the new law with 3 permanent closings, 980 partial or temporary
closings, 29 relocations, 1032 agreements negotiated for
compliance scheduling and 679 voluntary compliance agreements.
These facts are especially significant in light of the fact that
until 1991, when 100 additional inspectors were hired, Mexico had
only 109 inspectors for the whole country.
SEDUE has lacked adequate .resources to construct a fully-
effective enforcement regime. Despite inadequate funding,
however, very significant strides have been made in enforcing
Mexico's still evolving environmental regime and in applying
regulations and standards. An increasing percentage of SEDUE's
budget is being designated for enforcement and enhancement of
inspection capabilities. The 1991 budget provides for an
expenditure of the equivalent of $4.27 million on inspection,
monitoring and enforcement. Mexico also expects to receive
approximately $45 million in World Bank funds, such amount to be
matched by the Mexican government. A portion of these funds is
intended to be earmarked for improved compliance monitoring and
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enforcement and for carrying out: increased numbers of industrial
inspections.
SEDUE has also expressed its desire to create an effective
environmental communications policy to encourage wider compliance
and-increase the deterrent effect of the Secretariat's
enforcement actions. Moreover, it has become important for SEDUE
to respond in a concrete fashion not only to concerned
environmentalists in the United States but to a growing
percentage of the Mexican population concerned about further
degradation of the Mexican environment. Air pollution problems
in Mexico City have contributed to a heightened awareness of the
importance of environmental enforcement in one of the world's
most populous cities. •
Specific actions taken, including.the plant closings
mentioned above, and recent public statements made by SEDUE may
put the above analysis in context. There appears to be a resolve
to mount a credible environmental enforcement program despite
less than adequate funding.' The Group of 100, a Mexican
nongovernmental environmental: group recently supported SEDUE's
closing of the PEMEX facility with the following widely published
statement: "The government's promise to clean up industry in the
Valley of Mexico looks legitimate.11 They went on to say that "by
closing the Pemex *18 de Marzo' refinery in Azcapotzalco, the
government now holds the moral authority to force industries to
clean up or close down."
Mexico and the United States take somewhat different
approaches to environmental law enforcement. Enforcement in
Mexico generally involves one of three techniques: permanent
plant closings or temporary closings intended to lead to the
negotiation of settlement agreements; the imposition of fines;
and voluntary compliance agreements. These administrative
enforcement tools are frequently used while criminal prosecution,
which involves turning the matter over to the Attorney General's
office, is exceedingly rare^ In the U.S., criminal actions and
civil law suits, including 'those brought by citizen groups,
against violators of U.S. environmental laws are common.
In Mexico, plant closings generally lead to consultations
between SEDUE and corporate entities formally charged with
violating environmental regulations. A compliance plan or
agreement containing timetables for compliance with media
specific regulations is usually worked out between SEDUE and the
violating industry, with which industries—especially small local
industries—can reasonably comply. These "agreements" are then
monitored by SEDUE to the extent resources permit.
The closing of Mexican industrial facilities, which involves
closure in advance of negotiations and reopening once agreement
is reached, has encouraged substantial numbers of companies
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operating in Mexico to approach SEDUE to negotiate voluntary
compliance agreements. Once these are entered into, they are
monitored by SEDUE.
In recent years, SEDUE has been reluctant to impose fines on
violators; however, SEDUE presently intends to rely more heavily
on the imposition of fines to discourage future violations. The
existing law permits the imposition of fines, which are indexed
to inflation, up to the equivalent of US $80,000. Even a
substantially lower amount would be a significant charge to a
medium-sized Mexican company. An increased reliance on fines is
believed by SEDUE to be likely to function as an effective
deterrent. SEDUE also intends through these charges to pass
along the costs of facility inspection. Administrative detention
(as distinguished from criminal arrest) has also.been imposed for
up to a total of thirty-six hours. This might involve
deprivation of a corporate officer's freedom, for several hours
each day until agreement is reached on future compliance.
Administrative proceedings before SEDUE are generally
"paper" proceedings in which the parties argue by affidavit. In
deciding whether to close a facility temporarily or permanently,
SEDUE acts as both prosecutor: and judge. When SEDUE investigates
and then closes a facility, all the formalities of Mexican law
must be strictly observed by investigators. On occasion,
proceedings against an industry have been discontinued because
SEDUE has found that its own staff has been the cause of
technical legal violations. SEDUE has attributed this problem to
difficulties in retaining large numbers of good inspectors and
inadequate training of new inspectors. They intend to designate
a portion of World Bank funds and matching government funds for
staff training. If an industry continues to disagree with the
enforcement action and the SEDUE requirements for an acceptable
plan, it can invoke an "amparo" proceeding and bring the matter
to the Ministry of Justice. To date, this procedure has been
very rarely used.
Negotiated settlements are also widely used in the United
States. Approximately 95% of EPA's administrative and civil
judicial actions are concluded as negotiated settlements.
Generally, EPA sends a violator a notice of intent to sue which
triggers the beginning of a negotiation period. In most cases, a
civil complaint is filed simultaneously with a consent decree,
the terms of which were negotiated with the violator. In other
cases, the civil judicial complaint is filed after the notice of
intent to sue is issued to the violator and the case proceeds on
a trial schedule. In some cases, the litigation is settled and a
consent decree is filed before proceeding to trial. The court
must approve and enter the terms of any settlement. Once
entered, the settlement -is judicially enforceable.
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Mexican enforcement practice is ahead of U.S. practice in
one notable respect: multi-media integration of inspections. In
the U.S., inspectors generally look for violations of specific
media regulations during each visit. In Mexico, however,
inspectors engage in a multimedia inspection, looking for
violations with respect to all media at each facility. There is
ongoing interest demonstrated by SEDUE in having joint site
visits in the border area and in increasing the level of training
and expertise among SEDUE inspectors. :
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MEDIA-SPECIFIC DISCUSSION AND FINDINGS
New Sources
- Most of the NTEs or standards apply to both new and existing
sources. There are a few, such as location standards for
hazardous waste disposal facilities, that are directed to new
sources. SEDUE has indicated that it tries to apply "best
available technology" to all new sources. -
New facilities or modifications to existing facilities
require prior authorization from SEDUE. As part of this process,
all new sources are required to file with SEDUE an environmental
impact analysis and, for hazardous activities or dangerous
substances, a risk assessment. SEDUE reviews these analyses and
has the authority to deny authorization for a project and to
impose conditions on the design, construction, and operation of
facilities so as to avoid significant adverse environmental
effects. This means that even in cases where not all applicable
NTEs have yet been developed, SEDUE can impose limits and other
conditions. For example, in the water area this process is used
to impose facility-specific "special conditions."
It appears that in all media, SEDUE has found guidance in
U.S. regulations when establishing conditions on the operation of
new sources, and in.reaching compliance agreements regarding the
continued operation of existing sources.
The number of environmental impact and risk reviews has
increased significantly in recent years. Between 1983-1988,
about 400 studies of environmental impact and under 100 risk
assessments were evaluated by SEDUE. In the three years since
1988, however, after the publication of the General Ecology Law,
SEDUE evaluated more than 1500 studies of environmental impact
and nearly 300 risk assessments.
Air Pollution
For twenty years, the core of U.S. stationary source
controls arguably has been the setting of national ambient air
quality standards ("NAAQS") for "criteria" pollutants and state
planning to attain and maintain those standards through the state
implementation plan ("SIP") process. Clean Air Act section 110
and Part D of title I. The criteria pollutants are ozone (O3),
sulfur dioxide (SO2) , particulate matter (now measured by PM10 or
fine particulate matter, replacing total suspended particulates
or "TSP"), carbon monoxide (CO), nitrogen dioxide (NO2) and lead.
States are responsible for demonstrating "reasonable further
progress" toward attainment in those areas not meeting the
standards. States are also required to impose "reasonably
available control technology" on certain existing stationary
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sources in such nonattainment areas. The 1990 Clean Air Act
("CAA") Amendments call for numerous additional requirements for
nonattainment areas, depending on the severity of the pollution
problem.
- In the U.S., all major new sources must undergo review to
determine whether the proposed project will meet applicable
requirements, which vary depending on the location. In addition,
new sources in categories for which a "new source performance
standard" ("NSPS") has been promulgated under section 111 must
also comply with that standard. To date, EPA has promulgated
approximately 65 NSPS.
The 1990 CAA Amendments completely revamped the standard-
setting process for toxic air pollutants, calling first for the
establishment of technology-based controls for sources of toxic
emissions to be followed eventually by standards limiting
residual risk to human health from emissions from such sources.
The 1990 Amendments also contained special, new provisions for
addressing acid rain, stratospheric ozone and permitting. Major
new provisions provide for the development of "cleaner" fuels to
help'address mobile source 'emissions.
To implement the 1988 General Ecology Law, Mexico has
adopted two regulations related to air pollution and numerous
technical standards under those two regulations. The broader of
the two regulations contains five chapters covering general
provisions, stationary source controls, mobile source controls,
establishment of a national air quality monitoring system, and
enforcement, including sanctions. The second regulation is much
narrower in scope, being designed to address air pollution in
Mexico City and environs by regulating traffic, motor vehicle
emissions, and vehicle inspections. Most of the NTEs issued
under these regulations address air pollution from specific types
of stationary sources and from various classes of mobile sources.
Others set forth procedural requirements, such as for special
permitting, test methods and test procedures.
Both the Mexican and ui.S. air pollution programs require
adoption of ambient air quality standards for specific
pollutants. Mexico has issued such standards, called "maximum
permissible levels" or "MPL's", for ozone, CO, SO2, NO, and TSP,
and, according to SEDUE, is about to issue standards for lead and
PM10. These are the same pollutants covered by the U.S. NAAQS.
In.addition, both laws require the implementing agencies to
establish emission limits and technology-based standards for
certain individual source types. Like the U.S. air protection
program, Mexico's law provides for monitoring the air and for
maintaining inventories of emissions.
Currently, one of the main differences between the U.S. and
Mexican system lies in monitoring capability. In the U.S., a
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nationwide air monitoring system operated by state and local
governments monitors concentrations of all criteria pollutants at
numerous locations in each of the 50 states. Mexico has yet to
develop such a nationwide system. There are very few air quality
monitors outside of Mexico City, although with U.S. assistance
SEDUE is beginning to establish monitoring systems in the iorder
cities of Monterrey, Tijuana and Ciudad Juarez. SEDDE recognizes
the need to improve its monitoring capability in other cities and
hopes to begin this process when expected loans from the World
Bank are approved. As soon as possible, SEDUE plans to establish
networks in about 20 cities representing approximately 60 percent
of Mexico's population.
Mexico and the U.S. also have different approaches for
attaining the ambient standards. In the U.S., states develop
SIP's which are submitted to EPA for approval. Attainment and
maintenance of the standards is demonstrated through air quality
modeling, which relates emissions to ambient air quality levels.
In addition, states must adopt a number of measures prescribed by
the CAA and include them in their plans. Mexico does not have
such a state or local air quality planning system with federal
oversight. Instead, it relies on a source ^permitting program
which, at the moment, is carried out at the federal level.
The maximum permissible level ambient standards appear to be
used for informational purposes (i.e., comparing actual pollution
levels to the maximum permissible levels) and for triggering the
"contingency plans" in Mexico City. These plans call for
cutbacks in production by certain industries when pollution
reaches dangerous levels and when meteorological conditions
indicate that concentrations will not decrease without a cutback
in emissions.
Like the U.S., Mexico has developed a system for further
restricting emissions in chronically polluted and vulnerable
areas, called "critical zones." To date, nine critical zones
have been designated. Two critical zones along the U.S.-Mexico
border — Ciudad Juarez and Tijuana —appear to have been so
designated at least in part because of transborder pollution
problems. ;
Mexico controls stationary source air emissions through a
source permitting program. After receiving and reviewing a
permit application, SEDUE sets the emission limits for the
permit. Where a technical standard has been promulgated for that
source category, the limits in that standard would be
incorporated into the permit. As of April 1991, SEDUE has issued
eight stationary source standards. The standards most resemble
U.S. new source performance standards in that they set maximum
permissible emission levels for various pollutants per unit
measure of raw material or production, although they apply to
both new and existing sources. Only several of the promulgated
o
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stationary source standards appear to differentiate between new
and existing sources (producers of benzene sulfonic acid,
sulfuric acid, and cement calcining kilns). Where no standard
has been promulgated for the category, SEDUE indicated that it
looks to U.S. standards to guide its decision. In practice, SEDUE
usually tries to require "best available technology" for new
sources while being more lenient for existing sources that might
find meeting such stringent levels to be prohibitively expensive.
SEDUE plans eventually to turn most permitting
responsibilities over to the states (except where there is
federal jurisdiction and where a source affects air quality in
two or more states) as contemplated by Mexico's air regulation.
To date, SEDUE has focused :pn permitting the largest types of
facilities. Currently, less than ten percent of all industrial
sources in Mexico hold permits. However, these permitted sources
would include many large manufacturing facilities.
Once a source has a permit, it must report certain
information, including air istack test emissions data, every
February. The permit must ;be modified if changes are made to the
source. In the absence of Modification, the lifetime of a permit
is unclear. SEDUE reviews :the submitted data and, if a violation
appears to have occurred, may inspect the source and close it
temporarily or permanently or impose a fine. Fines appear to have
been rarely used.
SEDUE reports that it plans to eliminate the import and
export of CFCs, which destroy the stratospheric ozone layer,
through the permitting process. SEDUE has not discussed how it
plans to address domestic production of CFCs. The Global Change
Division in EPA's Office of Air and Radiation reports, however,
that Mexico (the first country to sign the Montreal Protocol) has
already entered into a number of voluntary agreements with major
industrial sectors for reductions in CFC production. According
to the Global Change Division, Mexico is ahead of the reduction
schedule for developing countries set forth in the Montreal
Protocol. !
Mexico's mobile source controls are more easily compared to
its U.S. counterpart program.' The four major aspects of Mexico's
controls are tailpipe emission standards, vehicle inspection and
maintenance programs, fuel content specifications and
characteristics, and restrictions on driving. While SEDUE only
recently adopted programs for the first three types of controls
(required in the U.S. for several years), Mexico.appears to be
moving quickly toward standards for at least some measures that
are similar to U.S. limits. Driving restrictions, though rarely
adopted in the U.S., have been a matter of everyday life in
Mexico City for the past two years.
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An ecological standard issued in 1988 establishes tailpipe
emission standards for new cars. The new car standard requires
decreasing emissions beginning in 1989, with dramatic reductions
beginning in 1991, apparently envisioning a phasing-in of cars
with catalytic converters. This standard effectively will
require catalytic converters to be installed on all cars that are
manufactured in Mexico in 1993 and afterwards. Most 1991 model
cars are expected to have catalytic converters. SEDUE is also
considering requiring the retrofitting with catalytic converters
of certain vehicles in Mexico City (such as taxis) and vehicles
^in Tijuana that have had their catalytic converters removed.
Certain issues relating to the effectiveness of these
provisions remain unclear: Mexico's test procedures for
determining compliance with:the emissions standards; whether cars
must meet the standards for a specified "useful life" (U.S. rules
for passenger cars require .five years or 50,000 miles); whether
there are warranty and recall provisions; and whether there are
any restrictions on the sale of "aftermarket parts" that could
affect emissions performance if original equipment is replaced.
A recent development is that SEDUE now has authority to regulate
the content of fuels, as does EPA in the U.S. Previously, PEMEX
had sole authority in this area. SEDUE hopes to exercise this
authority beginning in 1992.
Twenty-two cities in Mexico now have vehicle inspection
stations. SEDUE reports that in some areas along the border,
emission inspection standards are more stringent than in Texas.
The regulation governing motor vehicle pollution in Mexico City.
mandates inspections in the:; Federal District and in the suburban
municipalities. Since 1989, Mexico City (i.e.. the Federal
District) has had "no drive days." Each car may not be driven
one day of the five-day work week. In addition, driving may be
suspended in certain parts of the city when ambient pollution
levels are high.
Water Pollution
In the U.S., the federal Clean Water Act ("CWA") regulates
point source discharges of pollutants into U.S. navigable waters
through federal/state standards, implemented through a permitting
system. The law prohibits unpermitted discharges and those that
fail to comply with permit requirements. Under the U.S. program,
each discharge of pollutants from a point source is subject to
effluent limitations, which are based on two considerations. The
first is technology: all sources must meet effluent limitations
that are based on the best available technology economically
available ("BAT"). EPA has established nationally applicable
technology-based effluent guidelines and standards for numerous
categories of industrial dischargers, which must be factored into
the permit, where applicable. If no national regulation applies,
the permit-issuing authority (which may be EPA or an authorized
/
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state), must make its own determination of what effluent
limitations are BAT. In addition to technology-based
limitations, each permit must assure that dischargers will not
contribute to a violation of applicable water quality standards.
These standards are developed by each state, in accordance with
water quality criteria published by EPA, for individual bodies of
water (or segments thereof), subject to EPA approval and
oversight. The standards are required to assure attainment of
the use designated for the Iwater body (or segment) in question.
Mexican water pollution law contemplates a regulatory system ;
that if fully implemented would control point sources of
pollution as broadly as the;U.S. CWA. The Mexican General I
Ecology Law contains provisions to control surface, ground and i
marine water pollution. These provisions require: (i) federal l:
or state governments to authorize wastewater discharges into t-
bodies of water or into the soil or subsoil; (ii) sources to \
refrain from polluting the receiving body of water, interfering I
with water purification and disturbing the sewer system or *
hydraulic capacity of the watershed; and (iii) pretreatment ^
(whether discharging directly, to the receiving;water or
indirectly into the sewer system) to meet NTEs! developed at the
federal level. The first requirement appears to correspond to
the CWA's permit system; the second and third appear to provide a
framework that would allow such implementation tools as U.S.
effluent limitations, water quality standards and federal
guidance. i!
The principal sources of Mexico's water problems are
scarcity and pollution. Uricontaminated water for drinking and
other uses is in short supply, particularly in Mexico City and
other urban areas. Most rain in Mexico falls in sparsely
populated areas. Accordingly, optimal use and preservation of
the country's water is of high priority for SEDUE and the Mexican
National Water Commission ("NWC"). Among other things, SEDUE is
encouraging industry to look for ways to. recycle process waters
and minimize the production of wastewater.
With respect to treatment, capacity exists to treat about 8%
of Mexican wastewater; about 4% is actually treated, however.
Both new and existing sources are subject to regulations and 27
categorical NTEs. (A separate NTE applies to discharges into
municipal sewer systems.) Like the effluent limitations
guidelines and standards promulgated by EPA, the NTEs are based
on economic and technical feasibility and reflect technologies of
sedimentation, flocculation and precipitation. Requirements more
stringent than those of the NTEs may be imposed with respect to:
a) discharges to sources of drinking water; b) injection
underground (allowed only if study shows that aquifer will not be
damaged); and c) discharge into marine waters through "soft
marine" channels.
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Discharges may also be subject to plant-specific "special
conditions" that take into account, among other things, the
quality of the receiving water, although this is most likely to
be true for new sources. To date, approximately 4,000 of 40,000
discharges are subject to such conditions. New source special
conditions are developed in:conjunction with the environmental
impact assessments. Facilities subject to special conditions are
required to report to SEDUE'monthly; SEDUE intends to put this
information into a computerized data base.
A facility needs authorization to discharge wastewater;
unpermitted discharges can jtrigger penalties or closings. The
NWC authorizes discharges from continental sources into
continental rivers. The Secretary for Marine Affairs issues
permits for discharges from mobile sources. The regulation for
protecting the marine environment from spillage of wastes and
other discharges sets a number of•environmental and health
criteria for the issuance of permits by SEDUE., It is noteworthy
that article 10 of the regulation prohibits the issuance of
permits for discharges which would present a danger to human
health or well-being, ecological systems, or to recreation areas.
It should also be noted that Mexican Federal law "de la rechus"
also requires a permit for dischargers to make use of the
country's water. Violators of NTEs or other laws are liable for
"contributions" to be used for water pollution:control projects.
The payments, which are not cbnsidered to be fines or penalties,
are based on volume of flow, discharges of the - conventional.
pollutants, settleable solids and biological oxygen demand
("BOD"), and the cost of pollution abatement.
Both SEDUE and the NWC'conduct periodic and surprise
inspections of discharging facilities. Enforcement efforts rely
on monitoring by SEDUE and:NWC. In addition, each facility must
submit a monthly report. Fines for substantive violations may be
levied up to the equivalent of U.S. $80,000.
Three government agencies participate in setting water
quality standards: SEDUE, ;NWC, and the Navy. The NWC also
classifies uses of water bodies. The standards are based in part
on the "assimilative capacity" of the water body. Sometimes, the
government can take measures to assure that the assimilative
capacity is not exceeded. SEDUE has also established water
quality criteria that set long-term goals or objectives to be
achieved. The criteria, which are similar to EPA's water quality
criteria (although used for a different purpose), are based only
on scientific evidence.
Mexican and U.S. water law share-some similarities. Both
rely on technology-based controls on effluent discharges.
However, it appears that the Mexican scheme is not as
comprehensive as that of the United States. Very few facilities
have permits, although this situation is expected to change with
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the increased number of inspectors. Much of the enforcement
system appears to cover only discharges of conventional
pollutants rather than toxic metals or brganics. In addition,
Mexico is only now developing a formal.control system for
discharges into municipal sewers. It is also not clear that
every stream segment in Mexico has a designated use supported by
water quality criteria ,^_as does the United States, or that
criteria for the downgrading of existing or designated uses are
as stringent as those of the United states.
Hazardous Waste Pollution
In the U.S., two major statutes address the treatment,
storage and disposal of hazardous waste: the Resource
Conservation and Recovery Act ("RCRA"), 42 USCi§ 6901 et seq..
and the Comprehensive Environmental Response, Compensation, and
Liability Act ("CERCLA") , 42 USC § 9601 et sea.; RCRA sets forth
a comprehensive "cradle to grave" framework for managing
hazardous waste.; Hazardous;waste must be manifested, treated and
stored or disposed of in accordance with permits incorporating
substantive and procedural requirements specified in the statute
and in EPA regulations. RCRA discourages land disposal of
hazardous waste and EPA's implementing regulations require that
most waste be treated with the "best demonstrated available
technology" prior to disposal. RCRA also requires that owners
and operators of hazardous waste facilities undertake corrective
action for release of hazardous constituents.
While RCRA is aimed primarily at the active management of
hazardous waste, CERCLA establishes a program for responding to
releases of hazardous substances2 into the environment from
unmanaged sites. CERCLA provides legal authority and resources
to allow a federal response to address the harm caused by .such
releases. It also establishes a strict regime of civil liability
for those responsible for the releases.
Mexico's legal regime for managing hazardous waste is quite
similar to that of the United States, although it has not adopted
several key aspects of the U.S. regulatory scheme such as land
disposal restrictions and the underground storage.tank program.
In one aspect, SEDUE may go further than the U.S. by regulating
the generation of hazardous waste and requiring generators to
report the kinds and volumes of their wastes.
As in other areas of environmental regulation, Mexican
controls on the management of hazardous waste tend to be more
lenient for existing sources than for new ones, by giving
existing sources more time to comply with the regulations and
ft
2Hazardous substances, defined in § 101(10) of CERCLA,
include but are not limited to RCRA hazardous wastes.
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standards. New plants, on the other hand, ;are not allowed to
operate if they fail to meet the legal requirements. New sources
must also meet certain additional requirements. For example,
they must use BAT, while existing sources are called on to
strengthen pollution controls and recycle. New facilities are
subject to detailed siting 'criteria. Most tnotably: a person
wishing to construct a facility that will .generate or manage
hazardous waste must receive prior government authorization, a
process that also involves the development and review of
environmental impact and risk assessments. As in the U.S.,
provisions for corrective action may be part of the operating
authorization, which is fairly specific and detailed.
Both new and existing facilities must reduce the volume of
waste generated and then apply physical, chemical, or biological
treatment to the waste.. Hazardous wastes must ultimately be
disposed of in a controlled confinement or disposal facility in
accordance with applicable NTEs and regulations. Storage of
hazardous waste is also subject to specific regulatory
requirements. The NTEs and regulations are quite detailed and
similar to their U.S. counterparts, although not completely
identical. The most significant differences in the legal regimes
governing hazardous waste disposal are that SEDUE has not yet
promulgated treatment-oriented land disposal restrictions
equivalent to those under RCRA or addressed the issue of leaking
underground storage tanks. : SEDUE has indicated that it intends
to address these issues in the near future. ;
It appears that there are few authorized, operating, off-
site, waste disposal facilities. SEDUE officials recognize the
need to develop more waste disposal capacity but note that
efforts to develop that capacity may be hampered by Mexican state
laws against importation of hazardous waste, which apparently are
valid.
Mexican law on manifesting hazardous waste appears similar
to its U.S. counterpart. Under the Presidential Agreement of May
5, 1989, manifests are required for the delivery, transport and
receipt of hazardous waste,: as well as for any "incidents"
involving hazardous waste. ; Manifests must be submitted to SEDUE
for every shipment. A monthly report is required for hazardous
waste confined in final disposal sites.
As in other media, the number of facilities in Mexico that
operate with required authorizations is quite small. However,
maquiladora compliance is considerably better. Releases of
hazardous constituents are not allowed; SEDUE can shut down or
fine facilities that do so. It is more common, however, for
SEDUE to shut down a facility temporarily and then enter into a
compliance agreement with that facility.
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Like EPA, SEDUE has only "normative" responsibility over
municipal waste, which is under local control. SEDUE has
identified three prototypes of "correct" landfills and gives
technical assistance and information to municipalities for
developing and operating landfills and other solid waste disposal
facilities. •' •
There is no Mexican equivalent of the U.S. Superfund law.
Mexico does have a program to solicit voluntary contributions
from industry for cleanup of abandoned hazardous waste sites.
SEDUE's role in implementing the program will be to identify
sites, select remedial action and provide oversight. To date, no
systematic effort has been made to identify the sites where
releases pose a significant risk to human health or the
environment* Since Mexico is likely to face a significant
problem with existing hazardous waste contamination, the
"voluntary fund" is not likely to be adequate for a significant
number of comprehensive cleanup operations. ;
Environmental Impact Assessment
Tlie U.S. National Environmental Policy Act ("NEPA") requires
the preparation of an environmental impact statement to accompany
proposals for "major Federal actions significantly affecting the
quality of the human environment." The two fundamental purposes
of this requirement are to ensure environmentally informed
decision-making by federaliagencies and to provide a springboard
for public comment. Although explicitly attaching to federal
actions only, in practice, actions subject to NEPA encompass a
variety of state, local and private activities due to federal
funding or regulatory involvement. U.S. environmental review law
relies on a procedural process to fulfill its objectives: once an
environmental impact study is prepared, NEPA does not constrain
federal decision-makers from deciding that non-environmental
values outweigh environmental concerns.
Mexican environmental impact assessment law requires that
the appropriate federal, state, or municipal government
authority, based upon an environmental review, authorize and
impose conditions on both public and private activities that may
cause adverse ecological effects or violate environmental laws.
Environmental review subject to SEDUE oversight is required for
federal public works projects; water power projects; public
highways; oil, gas, and coal pipelines; the chemicals, steel,
paper, sugar, beverage, cement, automobile, and electricity
industries; mineral and non-mineral mining and refining
activities; federal tourism developments; hazardous waste
facilities; and forestry enterprises. Accordingly, Mexico's .
federal environmental review regime may achieve broader coverage
than the analogous U.S. regime, since U.S. federal environmental
review requirements apply only to federal actions. In Mexico,
moreover, in the case of activities considered highly dangerous,
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a separate risk study is also required to minimize and plan for
accidents.
Other types of activities are subject to review under state
and municipal law. To date, eighteen of thirty-one states have
promulgated state environmental review laws. Although the-
breadth of the state requirements vary, all eighteen states have
so far provided for environmental review of state public works ta
projects. Finally, Mexican;law mandates the preparation of
environmental reviews for any activity that may have significant
transboundary effects, which goes beyond the U.S. obligations
which apply only to appropriate federal activities. Mexico's
federal environmental review scheme, although enacted less than
three years ago, already produces environmental documents in
numbers roughly comparable to the U.S. system.
To obtain the authorization of SEDUE, an interested party
must present SEDUE with an environmental impact analysis prior to
initiating an activity. A brief, preliminary report is
sufficient in cases where the activity has no adverse ecological
effects and complies with applicable legal standards. Depending
upon the gravity of a project's potential impacts, a "general,"
"intermediate," or more detailed, "specific" environmental review
is required. "
Both Mexican and U.S. law require an analysis of a proposed
project's potential environmental impacts, possible mitigation
measures, and compliance with other environmental laws. U.S.
law, however, also requires consideration of all reasonable
alternatives to a proposed action, including no action. In
addition, U.S. law requires, more broadly, consideration of
cumulative impacts resulting from the proposed action when added
to other past, present, and reasonably foreseeable future
actions.
Mexico's law mandates that proposed activities be carried
out consistent with conditions imposed upon them by SEDUE or
other appropriate federal agencies based upon the environmental
review. SEDUE's broad discretionary authority to impose
conditions effectively goes beyond U.S. federal environmental
review law, which establishes procedural mechanisms to ensure
environmentally informed decision-making but places no , O
substantive constraints on particular decisions. Mexican
environmental impact assessment law also mandates that proposed
activities comply on a continual basis with any established
conditions and provides for monitoring, inspections, and
sanctions for non-compliance. In contrast, U.S. environmental
review law has to date focused primarily on pre-decisional
aspects of the process. ' '-.
Early public participation has yet to be integrated into
Mexico's environmental review process. When an environmental
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review is completed, a notice is published in Mexico's Ecological
Gazette. Access is also allowed to the public,file once project
conditions have been established. Upon publication of the
notice, any individual may request additional consideration of
issues by SEDUE. In contrast to U.S. law, Mexican law does not
prqyj.de for private right of action, though an administrative
challenge to federal government action could be made.
Concluding Note
This Report does -not cover environmental laws, regulations
and standards relating to pesticides and toxic substances. These
are to be the subject of an additional study, directed by the EPA
Offices of International Activities and Pesticides and Toxic -
Substances.
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