EVALUATION OF MEXICO'S ENVIRONMENTAL LAWS,
REGULATIONS ANI?; STANDARDS
Pfeliftiihary Version
of Final Report
November 5. 1993
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFTICE OF GENERAL COUNSEL
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TABLE OF CONTENTS
page
INTRODUCTION 1
Legal Framework: Mexico's Civil Code Law System 2
Institutional Apparatus 2
Relationship Among the Mexican Constitution, the General
Ecology Law, Regulations and Technical Norms 4
1992 Cost-Benefit Analysis Law 7
The Role of Public Participation in Mexico 9
Environmental Law of the Mexican States 19
SPECIFIC PROGRAM AREAS 22
Air Pollution 22
Water Pollution 32
Hazardous and Other Wastes 60
Pesticides and Toxic Substances 70
Environmental Impact Assessment 81
Community Right-to-Know, Contingency Planning and Emergency 84
Response
ENFORCEMENT 87
CONCLUSIONS 101
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LIST OF TABLES
page
Table 1 — List of Agencies and Institutions Named by the General
Ecology Law as Sharing Responsibility for
Environmental Protection Issues in Mexico 4
Table 2 — Developmental Status of Mexico's Environmental Regulatory
System: Number of Technical Norms and Ecological
Criteria Completed or Scheduled for Completion
through the End of 1994 6
Table 3 — Selected Provisions of Mexico's Environmental Statutes
and Regulations Relating to Public Participation 12
Table 4 -- Side-by-Side Comparison pf Mexico's Ambient Air Quality
Standards and U.S. Ambient Air Quality Standards 26
Table 5 — Metal Finishing Industry - Direct Dischargers 38
Table 6 — Metal Finishing Industry - Indirect Dischargers 39
Table 7 — Petroleum Refining Industry - Direct Dischargers 41
Table 8 — Petroleum Refining Industry - Indirect Dischargers 43
Table 9 — Iron and Steel Industry - Direct Dischargers 45
Table 10 ~ Iron and Steel Industry - Indirect Dischargers 47
Table 11 - Copper Forming Industry - Direct Dischargers 49
Table 12 - Copper Forming Industry - Indirect Dischargers 51
Table 13 — Wood Treating Industry - Direct Dischargers 53
Table 14 — Wood Treating Industry - Indirect Dischargers 55
Table 15 ~ List of Pesticides Prohibited for Use Both in Mexico and in
the United States 73
Table 16 — The Seventeen Pesticides with Mexican but no U.S.
Tolerances 78
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INTRODUCTION
This report is a review by the United States Environmental Protection Agency's
Office of General Counsel ("OGC") of the Mexican environmental legal regime.1 It
attempts to compare selected Mexican environmental standards and U.S. environmental
standards in four key media areas: water, air, waste, and pesticides and toxic substances. In
early April, 1991, as a principal part of this effort and in cooperation with the EPA Office of
Enforcement ("OE") and EPA Regions VI and IX, OGC assembled a team of ten lawyers,
including one from the U.S. Department of State, to conduct a technical legal mission to
Mexico ("mission"). The mission's purpose was to study Mexico's environmental laws,
regulations and standards, assess its compliance monitoring and enforcement activities, and
share information on U.S. environmental law and practice. The scope of the mission
included the areas of air and water pollution, hazardous waste management, environmental
impact assessment and enforcement.2 In evaluating the Mexican environmental legal regime,
mission members 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. An interim report on
Mexican environmental laws, regulations and standards was released to the public in
November 1991.
To supplement and update its understanding of Mexico's evolving system of
environmental law, including the official reorganization of Mexico's environment secretariat
in 1992, OGC led a second legal mission to Mexico in March 1993. Since that time,
individuals from OGC, OE and from EPA's media-specific program offices have analyzed
the information gleaned from the first and second OGC-led legal missions in order to
complete this report on Mexican environmental law.
This report also provides an analysis of what EPA has learned thus far about
Mexico's system for environmental protection. It can only be viewed, however, as an
interim report. Mexico's environmental protection system is much more advanced and
comprehensive than it was prior to 1988, at the time of the passage of Mexico's General Law
on Ecological Balance and Environmental Protection (the "General Ecology Law"). Indeed,
Mexico has progressed far in promulgating regulations and technical standards to give full
force and effect to the General Ecology Law, but its environmental protection regime is still
being developed. Several areas remain in which regulations and standards need to be
promulgated for the General Ecology Law to have its full, intended impact.
'Other parts of EPA that have been involved with this effort include the Office of Enforcement, the Office
of International Activities, the Office of Pesticides and Toxic Substances, the Office of Water, the Office of Air
and Radiation, the Office of Solid Waste and Emergency Response and several EPA regional offices.
:In addition, EPA initially examined Mexico's program for pesticides and toxic substances in a parallel
effort, led by the Office of International Activities and the Office of Pesticides and Toxic Substances, in which
the Food and Drug Administration (FDA) and the U.S. Department of Agriculture also participated. That effort
included a separate EPA mission to Mexico during May 6-11, 1991, for which a separate preliminary report
was prepared. The Pesticides and Toxic Substances Division of OGC participated in the second OGC-led legal
mission, and a section on pesticides and toxic substances is included in this report
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Legal Framework: Mexico's Civil Code Law System
In conducting any comparative analysis of U.S. and Mexican laws, it is important to
note that the two countries enact, develop, implement and enforce their laws, regulations and
standards within different legal systems and frameworks. The United States has a common
law tradition, built upon centuries of judicial interpretations of the law constituting binding
legal precedent in many situations. Mexico, on the other hand, like France or Germany has
a civil law system much less reliant on the judiciary for developing and interpreting the law.
This fundamental difference between the two legal systems limits the degree to which the two
environmental law regimes can be neatly compared.
The main practical difference between the two legal systems lies in the significantly
greater reliance within the Mexican system on administrative proceedings for enforcement
rather than on litigation. This means a far less active role in environmental enforcement for
the Mexican judiciary compared to the U.S. judicial system and greater power within the
administrative governmental bodies of the executive branch. It also means that Mexico
places a much higher priority on negotiating with the regulated community as a means of
resolving disputes.
Institutional Apparatus
According to the Mexican Embassy, the administration of Mexican President Carlos
Salinas de Gotari has identified four priorities for protection of the environment: (1)
eliminating highly polluting activities; (2) rehabilitating areas of ecological deterioration; (3)
establishing water conservation policies; and (4) establishing parks and land reserves. The
agency charged with the lead environmental responsibility within the Mexican government is
SEDESOL, the Secretariat of Social Development.
1. Reorganization of SEDUE into SEDESOL. The environmental component of
SEDESOL was created in May 1992, when the environmental functions of several federal
agencies, including SEDUE (the Secretariat of Urban Development and Ecology) were
transferred to SEDESOL. SEDESOL, a cabinet-level agency, was originally created as p.r-
of the Mexican Government's economic development reform program, and therefore owr-*.^
regional development, urban development, housing, and indigenous peoples, in addition to
environmental protection and conservation of natural resources. One of SEDESOL's core
functions is to coordinate the protection of the environment with poverty and urban plann.-i:
programs. SEDESOL currently has a delegation in each of Mexico's 31 states.
SEDESOL has a mandate to work with the U.S. on the Integrated Environmental
Border Plan3 to improve environmental laws and the mechanisms to enforce them, and
3The Integrated Environmental Plan for the Mexican-U.S. Border Area (the "Border Plan') negotiated
by the U.S. and Mexico pursuant to the 1983 U.S.-Mexico Agreement of Cooperation for the Protection anJ
Improvement of the Border Area (the "La Paz Agreement"), is a binational blueprint which identifies
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attempt to privatize infrastructure projects and public services to take advantage of private
sector environmental capabilities. SEDESOL is headed by Luis Donaldo Colosio Mumeta.
Within SEDESOL, environmental functions are divided between two autonomous
agencies: the National Institute of Ecology (INE) and the Office of the Attorney General for
Protection of the Environment (the "Procuraduria Ambiental" or "PFPA").
2. National Institute of Ecology. The National Institute of Ecology is headed by INE
President Sergio Reyes Lujan, formerly head of the Environmental Subsecretariat of SEDUE,
SEDESOL's predecessor for environmental protection and conservation matters. It is an
independent agency within the SEDESOL responsible for Mexico's overall environmental
policy formulation and implementation, and for the development of environmental regulations
and standards, as well as for conducting research on the environment. These responsibilities
are generally the equivalent of responsibilities held by EPA in the U.S. However, in
conjunction with other agencies of the Mexican federal government, INE also has
responsibility for such issues as natural resource conservation and forestry, which in the U.S.
fall mainly within the Departments of the Interior and Agriculture. Other substantive areas
primarily handled by INE include hazardous waste cleanup and ecosystem management.
As the agency charged with primary responsibility for environmental policy making,
INE issues regulations, develops technical standards and norms, issues permits, and evaluates
environmental risk studies for high-risk activities. It also oversees the environmental impact
assessment process in conjunction with the state offices of SEDESOL.4
3. The Procuraduria Ambiental. The new Office of the Attorney General for
Protection of the Environment is headed by Santiago Onate Laborde, formerly the
Ambassador of Mexico to the Organization of American States. It has authority to monitor
compliance with, investigate violations of, and enforce environmental regulations. The PFPA
has administrative prosecutorial authority and the power to assess penalties. It also conducts
environmental audits, as described in more detail in the section on enforcement below. The
PFPA may also refer violations to the federal Attorney General at the Secretariat of Justice
for action with a recommendation that criminal sanctions be sought, and has oversight o\cr
actions by federal workers that may have an impact on the environment. As part of the
effort by the Mexican government to increase public participation, the office also has pnmars
environmental priorities within the Border Area and suggests targets and time tables for dealing with those
issues given priority. The Border Plan, released in February 1992, covers the period 1992 through 1994
Progress under the Border Plan is currently being evaluated in anticipation of the negotiation of a new L S -
Mexico Border Environment Action Program, which will cover the period 1995 through 2000.
4INE is divided into the General Directorates of Ecological Planning; Research and Development.
Natural Resources and Conservation; and Environmental Standards The General Directorate of Environment!
Standards is further divided into five offices: (1) Norms, (2) Hazardous Substances and Hazardous Wastes. (3)
Implementation of Environmental Quality; (4) Environmental Risk and Environmental Impact; and (S)
Administrative Systems.
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responsibility for receiving and acting upon citizen complaints about harmful environmental
conditions.5
4. Other Federal Entities. In addition to SEDESOL, several other federal entities
have jurisdiction over policies and activities affecting the environment. For example, with
respect to water, the National Water Commission (CNA) has enforcement and regulatory
authority over activities that may affect water quality, in cooperation with SEDESOL. In the
area of pesticide and toxic substance regulation and enforcement, the Intersecretarial
Commission for the Control of Pesticides, Fertilizers and Toxic Substances
(CICOPLAFEST), has primary responsibility. CICOPLAFEST draws its membership from
four federal secretariats, of which SEDESOL is one. Table 1 lists other agencies and
institutions named by the General Ecology Law as sharing some responsibility for
environmental protection issues in Mexico.
Table 1. List of Agencies and Institutions Named by the General Ecology Law as
Sharing Responsibility for Environmental Protection Issues in Mexico
National Forestry Commission
National Commission for Nuclear Safety and Safeguards
Secretariat of Agriculture and Hydraulic Resources (SARH)
Secretariat of Commerce and Industrial Development (SECOFI)
Secretariat of Communications and Transportation (SCT)
Secretariat of Public Education
Secretariat of Energy, Mining and Parastatal Industry (SEMIP)
Secretariat of Fisheries (SEPESCA)
Secretariat of Agrarian Reform
Secretariat of Health (SSA)
Secretariat of Labor and Social Security
Secretariat of the Navy
Secretariat of Planning and Budget
C. Relationship Among the Mexican Constitution, the General Ecology Law.
Environmental Regulations and Ecological Technical Norms
The Mexican environmental legal regime is established pursuant to Articles XXV ark'
XXVII of the Mexican Constitution. Article XXV calls specifically for environmental
protection, while Article XXVII refers directly to "all natural resources." Mexico's General
Ecology Law is a relatively new, comprehensive statute that became effective on March 1.
1988, replacing earlier environmental statutes. The General Ecology Law covers all types ot
pollution problems, natural resource conservation, environmental impact and risk assessment
The PFPA consists of three divisions or subprocuradunas (1) Complaints and Accusations, (2)
Compliance, and (3) Environmental Audits
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ecological zoning and sanctions for noncompliance with federal environmental law. The
comprehensiveness of the statute contrasts with the United States legal regime in which there
are separate statutes covering air pollution, water pollution, solid waste handling and
disposal, environmental impact assessment and various natural resource issues.
The General Ecology Law provides general criteria and policy guidance for
developing specific regulatory regimes, leaving wide discretion to SEDESOL to develop the
details of individual environmental regulatory programs. Since 1988, five "reglamientos"
(regulations) have been signed by the President of Mexico6 pursuant to the General Ecology
Law in a number of important areas: environmental impact assessment, air pollution
(national), air pollution (Mexico City), hazardous wastes, and water pollution. At least one
older regulation, covering pollutant discharges into coastal waters, was promulgated in 1979
pursuant to prior law, and remains in effect.
The regulations, in turn, are implemented through ecological technical norms
("NTEs") and ecological criteria. As of March 1993, 83 NTEs and ecological criteria had
been developed under the 1988 law and its regulations.7 Another 120s norms are slated to
be presented for approval by the end of 1994. Even when these additional 120 new norms
are issued, the Mexican environmental regulatory structure will not be fully developed.
However, it was apparent to the members of the second legal mission that SEDESOL is
continuing to work to develop the regulatory and technical standards that will make Mexico's
legal environmental program more complete. Table 2 indicates the present level of
development of Mexico's environmental regulatory system compared to its future level of
development as envisioned by Mexico's environmental officials.
*In Mexico, regulations have a sums similar to statutes in the U.S., and they must be signed by the
president of the country.
'Several NTEs actually preceded the associated regulation.
'EPA had received previously information that 125 new environmental norms were to be issued by the end
of 1994. EPA has requested verification of the number of new norms from SEDESOL.
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Table 2 -- Developmental Status of Mexico's Environmental Regulatory System: Number of
Technical Norms and Ecological Criteria Completed or Scheduled for Completion through
the End of 1994
MEDIA AREA
AIR
WATER
HAZARDOUS
WASTE
MUNICIPAL
WASTE
ENVIRON-
MENTAL
ASSESSMENT
NATURAL
RESOURCES
NOISE
TOTAL
COMPLETED
1988-1989
15
26
7
0
0
4
0
52
SCHEDULED
FOR
COMPLETION
1993
16
19
11
3
34
1
4
88
PLANNED
FOR
COMPLETION
1994
11
12
15
4
9
10
2
63
Source: SEDESOL, National Institute of Ecology
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Many of the technical standards are developed cooperatively with Mexico's Secretariat
of Health, which is responsible for gathering available health-related information, including
toxicity data and existing health-related standards from other countries, and recommending
appropriate standards or criteria to SEDESOL. SEDESOL then translates these
recommendations into legally-enforceable proposed standards and circulates them within the
Mexican government for review and comment. The proposed standards are also sent to state
and municipal governments, and attempts are made to reach out to the scientific, professional
and educational communities. Mexican law requires that the development of Mexican
standards include a close examination of international standards. Part of this process
involves an examination of what has been done in the United States as well as other countries
to address a particular environmental problem.
SEDESOL also consults with Mexican industry about proposed standards and their
effective dates as these affect particular economic sectors or industries. This negotiation
process is justified by SEDESOL on the basis that most Mexican industrial sectors comprise
a wide range of operational sizes. Such a policy is intended to protect the smaller, Mexican
business enterprises against the technological advantage and greater resources of larger
companies, including multinational companies (which may, in any event, adhere to more
stringent environmental standards on a world-wide basis for internal business reasons).
D. 1992 Cost-Benefit Analysis Law
In 1992, the Mexican Congress approved a new Federal Law on Measurement and
Standardization. This new law requires that existing Mexican technical standards relating 10
the specifications that products or processes must meet in order to protect human safety,
human health, animal health, vegetation, the environment, or natural resources, be
repromulgated after having been subjected to an analysis of their costs and benefits to
society. Virtually all environmental and conservation standards are effected by the new la"
This could result in the elimination or consolidation of certain of the 83 existing
environmental standards. The scope of the regulatory regime's coverage, however, should
not change. The new law also requires that all new standards in the categories listed abos c
are to be issued only after having been subjected to the same cost-benefit analysis that appl.es
to existing norms. Once an environmental norm (NTE) has undergone cost-benefit anahs.s
as prescribed by the law and is ultimately adopted, it is referred to as an Official Mexican
Norm ("Norma Oficial Mexicana" or "NOM")
The cost-benefit analysis law requires the promulgating agency to provide the
following with respect to each proposed standard: (1) a description of the potential benefit
of the norm, including those benefits that cannot be quantified in monetary terms, and
identification of the specific populations within Mexico that will benefit from the norm; (2) a
description of the potential costs of the norm, including any adverse effects that cannot be
quantified in monetary terms, and the identification of those segments of the population tha:
are likely to bear those costs; (3) a calculation of the net benefit to society of adopting the
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norm, including an evaluation of the beneficial effects that cannot be expressed in monetary
terms; (4) a justification of why the norm, among the other possible alternatives, will allow
the desired goal to be achieved at the highest net benefit feasible. This justification is
required to include a description of other mechanisms that could allow for the attainment of
the same goal at a higher net benefit than the official proposed norm, together with the legal
or other reasons as to why those other mechanisms have not been chosen instead. If no
alternative mechanisms exist, that should be explained in the analysis.
From the above description it appears that the cost-benefit analysis mandated by the
new federal law contains two provisions that could act as safeguards against any lowering of
existing Mexican environmental standards. First, it requires consideration of costs and
benefits that cannot be expressed in monetary terms. Environmental costs and benefits are
often difficult or impossible to quantify using the market measures of traditional cost-benefit
analysis. For example, it is difficult to calculate the present value of natural resources to
future generations, which requires reliance on uncertain assumptions (e.g., about future
demand and technology) and the application of discount rates and other complex accounting
procedures. Second, the statute defines the term "highest net benefit" as the highest net
benefit that is feasible, allowing options that would achieve the same goal at technically
higher net benefit levels to be rejected if there is a sound legal basis or other compelling
justification for selecting a different option. This provision may be important in situations
where the most environmentally sound regulatory means of achieving a particular goal is not
the means that would yield the highest net benefits achievable.
In addition, the Measurement and Standardization Law does not prohibit policy-
makers from setting thresholds or designing innovative ways to implement the new norms
Furthermore, cost-benefit analysis undertaken with respect to each norm is designed to
accompany a feasibility study that is submitted to various inter-governmental committees for
review and decision. Therefore, the requirements of the Mexican cost-benefit analysis lav.
are not comparable in rigidity to the requirements of the preparation of a regulatory impact
analysis and regulatory flexibility analysis that would be taken pursuant to U.S. Executive
Order 12291.
Norms issued by a federal agency in response to an emergency situation pursuant to
Article 48 of the Measurement and Standardization Law are exempt from the new cost-
benefit requirements. The maximum period of validity of such emergency norms is six
months. This emergency provision would apply to environmental emergencies.
Provisions of the new law on cost-benefit analysis indicate that Mexico intends to
begin a process of upward harmonization of its environmental standards in anticipation of the
requirements of North American Free Trade Agreement (NAFTA). NAFTA encourages the
U.S., Canada, and Mexico to examine their environmental standards in light of their relative
stringency when compared to applicable international environmental standards, and to use
those international standards as a basis provided they may always adopt higher standards
Article 41 of the Mexican Law on Measurement and Standardization requires that each
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proposed NOM contain a statement indicating the degree to which the norm is compatible
with applicable international norms and recommendations, to the extent any exist. Article 44
specifically states that norms issued by international institutions may be considered in the
development of NOMs, as long as their validity is recognized under Mexican and
international law. Article 53 requires imported products that are the same or similar to
domestic products to at least attain the same level of protection required by Mexican
standards. Such products require a certificate of authorization issued by a Mexican
government agency or by an appropriate international organization in order to enter the
country.
Other provisions of the new law are designed to promote increased transparency in
the process by which environmental and other standards are developed and issued in final
form, a goal also promoted by NAFTA and the North American Agreement on
Environmental Cooperation (the NAFTA supplemental agreement on the environment).
Article 2 (II)(a) of the cost-benefit law states that transparency and efficiency in the
preparation of NOMs is a primary objective of the statute. Article 2 (H)(d) is more specific
It proclaims that a central purpose of the statute is to promote the participation of the public
sector, the private sector, the scientific community, and consumers, in the preparation of
Official Mexican Norms. All proposed norms, whether repromulgated or issued for the first
time, are published in the Official Journal of the Federation, and are subject to a ninety-da)
public review and comment period. (SEDESOL has indicated that both the U.S. and Canada
may comment on proposed NOMs). In addition, Article 44 enables interested Mexican
citizens to propose norms for consideration by the appropriate agency or office within the
federal government.
The lead agency in implementing the cost-benefit analysis law is the Secretariat of
Commerce and Industrial Development (SECOFI). However, other agencies of the federal
government, including INE, are actively involved in implementing the new law as it relates
to the environment. Similarly, under Article 4, SECOFI, in coordination with the Secretarial
of External Relations (SRE), is to represent the nation at all international events relating to
the development of standards, without prejudice to the participation of other federal
secretariats, such as SEDESOL, that may have an interest in particular international
proceedings.
E. The Role of Public Participation in Mexico
The concept of public participation as one means of strengthening environmental
protection is fairly new to Mexico. Compared to the role that the public plays in the United
States in the development, implementation and enforcement of environmental laws and
regulations, the role the Mexican public plays in these activities is relatively has always been
different from the central role that it occupies in the United States. Significant strides have
been made in Mexico through adoption of legal measures designed to increase public
participation as it relates to the environment, including the development of mechanisms
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allowing the public to make submissions to administrative authorities on any matter of
environmental concern.
1. Overview. Consultation by the Mexican government with its citizens for purposes
of development planning was formally institutionalized in the 1983 Development Planning
Law. Citizen consultation in the areas of environmental protection and natural resource
conservation is to a large extent an outgrowth of this development planning consultation
process and began to develop in earnest with the First National Meeting on Ecology in 1984.
The last decade also witnessed growth in the number and importance of non-
governmental organizations (NGOs) in Mexico dedicated to protecting and improving the
environment. A meeting in Mexico on May 28, 1992 between the Secretary of Social
Development and more than 100 non-governmental environmental organizations resulted in
document known as "Common Purposes: A Basis for Dialogue between Civic Organizations
and the Government, for Defense of the Environment." An influential non-governmental
environmental organization in Mexico is the "Grupo de Cien" ("Group of One Hundred")
The Group of One Hundred's visibility has helped to stimulate the formation of other
environmental awareness groups throughout Mexico. These environmental interest groups,
now numbering some 250, have at times lacked adequate funding and failed to form credible
coalitions, but some have served as an aid to enforcement by performing an environmental
"watchdog" function in local communities.
2. Constitutional Underpinnings. In 1977, Article VI of the Mexican Constitution
was amended to establish "the right to information guaranteed by the State." Under this
constitutional provision the Mexican government has the responsibility of assuring that all
members of Mexican society are able to obtain full and objective information in a timely
manner. The provision takes the form of a right to information. In addition, Article XXVII
of the Mexican Constitution forms the basis for the right of "social participation" in Mexico
These rights are self-executing, and allegation that they have been violated can be brought
before Mexican Courts through the "audiencia" procedure.
3. The General Ecology Law. The 1988 General Ecology Law establishes a
framework for the exercise of these rights to information and social participation in the
context of environmental decision-making and enforcement. There are two types of public
participation provisions in the General Ecology Law: (1) "systematic" participation
provisions, which are found in Title V, Articles 157 to 159 of the law, which is specificalK
entitled "Citizen Participation," and (2) "diffuse" participation provisions, which consist of
scattered references throughout the General Ecology Law relating to public participation
With regard to the systematic participation provisions, Article 158 of the General
Ecology Law is particularly important because it states that SEDESOL shall carry out several
measures intended to enhance public participation in environmental decision-making. First
SEDESOL is to "[c]onvene, within the sphere of the National Democratic Planning System,
representatives of worker, business, peasant and agricultural producer organizations, of
10
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communities, educational institutions, and of private non-profit institutions, as well as other
representatives of society, to express their opinions and proposals." The National
Democratic Planning system is the process in Mexico by which national plans are produced
to address specific areas of public policy. For example, Mexico has a national energy plan,
a national plan for civil protection, and a national plan for environmental protection. These
plans are issued to cover a six-year period corresponding to the Mexican presidential term of
office.
However, this provision of the General Ecology Law requiring broad social
participation in the development of the national planning system is not at the present time
supported by regulations that specify how such participation is to be implemented. It is
Mexico's goal to promulgate such regulations but they are not necessary for members of the
public to invoke the right to social participation. The practical result of this lack of
implementing regulations is that public participation in national environmental policy
planning continues to be addressed through the National Development Plan, rather than
through the National Environmental Protection Plan.
The General Ecology Law does provide for administrative remedies by which the
public can make the right to social participation effective. The most important is the
"popular complaint" which is defined in Articles 189 to 194 of the General Ecology Law,
and discussed in greater detail in the sub-section of this report on citizens suits.
4. Other Public Participation Provisions. As mentioned above, the General Ecology
Law contains "diffuse" or scattered provisions relating to public participation with regard to
environmental protection and the conservation of natural resources. Other Mexican
environmental laws and regulations also contain such diffuse public participation provisions.
Table 3 provides a summary of many of these additional public participation provisions.
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Table 3 - Selected Provisions of Mexico's
Environmental Statutes and Regulations
Relating to Public Participation
LAW/REGULATION
PROVISION
CONTENT
GENERAL ECOLOGY
LAW
Article 1
Establishes that the
provisions of the General
Ecology Law are regulatory
of the provisions in Article
XXVE of the Mexican
Constitution. These
Constitutional provisions
form the basis for the
"social participation"
component of federal
legislation dealing with
natural resources and other
environmental matters.
GENERAL ECOLOGY
LAW
Article 8/XVm; Article
9/C/V
SEDESOL is to exercise its
powers in concert with the
private and social sectors,
to promote and induce the
participation of the
Mexican citizenry in the
actions it takes and
programs it develops to
preserve and restore
ecosystems and to protect
the environment
GENERAL ECOLOGY
LAW
Article 12
Requires SEDESOL to
allow the participation of
the social and private
sectors, including civic
organizations and other
representatives of society.
in the National Institute of
Ecology
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GENERAL ECOLOGY
LAW
Article 15/1
Requires SEDESOL to
respect, as part of its
ecological policies, that
ecosystems are the common
heritage of society
GENERAL ECOLOGY
LAW
Article 15/111; Article
15/VIII
Requires SEDESOL to
coordinate with other
government agencies and
with society, as an
indispensable element in the
effectiveness of its
environmental policies
GENERAL ECOLOGY
LAW
Article 15/XI
SEDESOL is required to
consider that the principal
subjects of ecological
cooperation are not only
individuals but also social
groups and organizations
GENERAL ECOLOGY
LAW
Article 18
Requires SEDESOL to
promote the participation of
social groups and
organizations in all
environmental planning
GENERAL ECOLOGY
LAW
Article 33
Requires SEDESOL to
allow any person to consult
the files of any mandatory
environmental impact
statement
GENERAL ECOLOGY
LAW
Article 66/y; Article 67/v
SEDESOL is required to
conclude agreements of
participation with the
private and social sectors
for the management of
ecological reserve areas
GENERAL ECOLOGY
LAW
Article 134
Requires SEDESOL to
respect the rule that
prevention of soil
contamination corresponds
to both the State and
society
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1988 REGULATIONS TO
THE GENERAL
ECOLOGY LAW
RELATING TO
ENVIRONMENTAL
IMPACT
Article 39
Provides that any person
has the right to consult the
files of any environmental
impact statement submitted
by anyone to secure
authorization for a planned
activity
1988 REGULATIONS TO
THE GENERAL
ECOLOGY LAW
RELATING TO
ENVIRONMENTAL
IMPACT
Article 41
Allows any person to
request SEDESOL to
compel anyone undertaking
an activity with the
potential to negatively
impact the environment, to
submit for approval an
impact statement
1988 REGULATIONS TO
THE GENERAL
ECOLOGY LAW
RELATING TO
HAZARDOUS WASTES
Article 4/XHI
Establishes the duty of -
SEDESOL to promote
social participation in the
control of hazardous wastes
1988 REGULATIONS TO
THE GENERAL
ECOLOGY LAW
RELATING TO
ATMOSPHERIC
POLLUTION
Article 7/XIV
Establishes the duty of
SEDESOL to promote
social participation in the
control of atmospheric
pollution
1982 NOISE POLLUTION
REGULATIONS
Article 70
Grants the administrative
remedy of "popular action"
to any person to denounce
sources of noise pollution
The obligation to inform
the complainant about
measures taken to-control
the problem depends on the
complainant requesting such
information.
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1992 SEDESOL
REGULATIONS
Article 20
Creates a unit on social
participation within
SEDESOL to ensure that
SEDESOL complies with
its legal obligations with
respect to public
participation
1992 INE and PFPA
INTERNAL
REGULATIONS
Preamble
Invokes the commitment to
secure the participation of
the private and social
sectors. However, the INE
regulations do not provide
the various organs of INE
with any powers regarding
social participation. The
PFPA, however, includes
an Office of the Assistant
Federal Environmental
Prosecutor for Social
Participation and
Complaints
1992 MEXICO CITY
POLLUTION
COMMITTEE
REGULATIONS
Third Article
Provides for the creation of
a Council which includes
representatives from the
scientific community,
recognized environmental
experts and members of the
social and private sectors
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1992 DELEGATIONAL
COMMISSIONS
REGULATIONS
Second Article
Divides the metropolitan
area of Mexico City into
sections to be represented
by various commissions
that will serve as organs of
analysis, consultation,
public opinion and
dissemination of
information for the
prevention and control of
pollution. Such
commissions shall
specifically include
"representatives from
ecological groups and
associations."
1992 NATIONAL
BIODIVERSITY
COMMISSION
REGULATIONS
Fifth Article
Allows for participation of
the academic and scientific
community, and of the
social and private sectors,
in specific projects
1973 WATER
POLLUTION
REGULATIONS
Article 66
Grants the administrative
remedy of "popular action"
to any person to denounce a
source of water pollution,
which triggers the exercise
of governmental functions
and responsibilities on the
matter, and the obligation
to inform the complaining
party about the measures
taken to deal with the
problem
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1988 ECOLOGICAL
NORMS REGULATIONS
Third Arucle/II
SEDESOL must publish in
the Ecological Gazette
an invitation to
representatives of the
social and private sectors to
participate in technical
working groups which
formulate, issue and modify
technical ecological norms
Source: Alberto Szekely, "Public Participation in Lawmaking and Decision Making,"
presented at Phase II of the North American Conference on Environmental Law, held in June
1993 in Berkley Springs, West Virginia.
The provisions listed in Table 3 are evidence of a growing trend in Mexico toward
establishment of a legal framework for public participation in aspects of environmental
decision-making and enforcement of environmental laws. However, certain recent Mexican
laws with environmental implications, such as the 1992 National Waters Law, and the 1992
Mining Law, do not contain public participation provisions.
5. Public Review of Environmental Standards. As mentioned earlier in this report,
Mexico's federal Law on Measurement and Standardization mandates that all proposed norms
be published in the Official Journal of the Federation, and that all such norms be subjected to
a ninety-day public review and comment period.
6. Citizen Suits. Mexican law does not authorize lawsuits by members of the public
alleging that violations of law have resulted in generalized harm to the environment.
Mexican law does allow persons to file tort claims in court against the polluter alleging
specific harm to individual plaintiffs caused by environmental contamination. If a member of
the Mexican public believes that harm to the environment has occurred or is occurring
because an environmental law (e.g., a statute or a presidential decree), regulation, or
standard has been violated, Mexican law empowers that person to file a complaint of the
alleged violation with executive branch environmental authorities. As far as EPA is awarv
the only potential means for a member of the Mexican public to sue the Mexican governmc;-.:
for failure to comply with or enforce an environmental law, regulation, or standard against .1
third party, is the amparo proceeding, an imporant and unique aspect of the Mexican legal
system, is used to assert that the government has acted in violation of rights protected b> •••.
Mexican Constitution.
Legal action in Mexico to address violations of environmental law, including action
by citizens or other members of the general public, tends to be administrative rather than
judicial in nature, although the government may initiate judicial action to enforce criminal
law, and private persons may sue in court for damages under the Civil Code. This tendencv
17
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toward administrative rather than judicial enforcement of Mexico's environmental law is due
in part to the fact that Mexico's legal system is a system based primarily on civil code law,
rather than on common law. In Mexico, standing to sue in court tends to be limited to
plaintiffs who assert that they have suffered injury, and does not usually extend to more
generalized claims of harm to society as a whole. Therefore, because individuals and public
interest groups usually do not have standing to formally complain in court of generalized
harm to the environment, the main avenue of formal complaint in Mexico for members of
the public alleging generalized environmental harm is the filing of a complaint with
administrative authorities.
Administrative proceedings in Mexico are usually "paper" proceedings in which the
panics argue by affidavit, though the law permits the taking of oral testimony. The
government agency with jurisdiction to enforce a particular type of law serves as both
prosecutor and judge in these proceedings.
a. Administrative Complaints
Chapter VII of the General Ecology Law, Articles 185-194, gives any member of the
public the right to file a "popular complaint" with SEDESOL alleging acts or omissions that
produce "ecological imbalance or injury to the environment" in derogation of the General
Ecology Law or other Mexican environmental laws. The complaint would be filed with the
PFPA, within SEDESOL, which has a Claims Branch dedicated solely to relations with the
public, including response to these public complaints of non-compliance. This branch is led
by an Assistant Federal Environmental Prosecutor. Under the General Ecology Law,
SEDESOL (through the PFPA) must provide notice of each complaint to the alleged violator
and to other affected parties, and has 30 days from the receipt of the complaint to investigate
the complaint and to inform the complainant of the results of the investigation and of the
enforcement measures taken, if any. Thus, the PFPA uses public complaints of violations as
one important means of targeting facilities for inspection.
b. Amparo Proceedings
If a person, including a judicial person (i.e.. a company) believes that its rights under
the Mexican Constitution have been violated by administrative procedures, it can bnng an
amparo ("shelter") proceeding to the courts through the Secretariat of Justice. For example
it may be possible for a person to allege that the Mexican government has violated Article
XXVII of the Constitution by failing to comply with an environmental law or regulation, or
by failing to enforce an environmental law or regulation against a third party offender.
Under Article XXVn, natural resources in Mexico are ultimately considered to be
part of the public patrimony held in trust for the Mexican people by the Mexican federal
government. Therefore, a complainant who has gone through the administrative system for
enforcement of environmental law, and has not had a matter resolved satisfactorily, might be
entitled to use the amparo procedure to seek redress through the courts, on the basis thai
18
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Article XXVII of the constitution had been violated by the administrative agency handling the
complaint. However, it is not completely clear that this constitutional provision can be used
to support a private right of action.9 Moreover, the amparo procedure has rarely been
invoked in any context. The feasibility of amparo proceedings as a means for the public to
redress violations of environmental laws and regulations is also limited by decisions of the
Mexican Supreme Court of Justice that restrict standing to bring lawsuits to those individuals
who are in fact injured by the act or omission in question.
Standing has also been limited in the U.S. to court decisions.
c. Private Tort Remedies
Another possible means of judicial recourse for those complainants who have suffered
injury-in-fact through the violation of environmental laws and regulations is available under
Mexican tort law, as contained in the Civil Code. The elements of a civil cause of action in
tort are: illegal or negligent conduct that is the proximate cause of the plaintiffs injuries. In
the case of inherently dangerous activities, including those related to the use of hazardous
substances, one who engages in those activities is strictly liable for harm caused, although
contributory negligence or reckless conduct is a defense to strict liability. The types of
injury that can be asserted by the plaintiff include harm to a person's emotions, effects,
beliefs, reputation, private life, and appearance, as measured in relation to how that person is
viewed by the rest of society. Mexican courts typically view damages in ton suits as limited
to restitution of out-of-pocket costs resulting from the harm, or to provable lost earnings.
F. Environmental Law of the Mexican States
In the United States, most minimum pollution control standards are set at the federal
level. These standards are usually implemented by separate state legal authorities or plans
which may call for measures that are more (but not less) stringent than federal control
measures. Federal authorities retain oversight responsibility. Examples of this approach
include the U.S air and water pollution control regimes. Under the U.S. Clean Air Act,
states develop state implementation plans ("SIPs") which are submitted to EPA for approw
The plans must contain a number of measures prescribed by the federal statute, although t,..-
may also go further.
Similarly under the U.S. Clean Water Act, EPA sets minimum technology-based
guidelines for pollutant discharges into surface waters. These are implemented through a
permitting program largely administered by the states pursuant to federal authorization and
under federal oversight. Each state develops water quality standards based on the quality and
capacity of its own receiving waters. Certain other U.S. programs, such as those regulating
pesticides and toxic substances, remain highly centralized. Even in these areas, however, the
trend is toward increased state responsibility within the limits of the enabling legislation.
It is clear that the Mexican federal government is able to institute legal proceedings for damage to the
natural patrimony pursuant to Article XXVII of the Mexican Constitution.
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The situation in Mexico is not much different. There is a significant and increasing
trend toward decentralization of environmental responsibility from the Mexican federal
government to Mexican state and local governments. Institutionally, Mexican federal law
defines the environmental areas under federal responsibility and leaves the remaining areas of
environmental responsibility to the Mexican states. In 1987; item "G" was added to
subsection XXIX of Article LXXTT1 of the Mexican Constitution, which gave the Mexican
Congress the power "to issue laws to establish the joint participation of the governments of
the Federation, the states and the municipalities, in their respective spheres of competence, in
the field of environmental protection and the preservation and restoration of ecological
balance."
In exercising this power, the Mexican Congress established the distribution of
environmental powers between the federal government and the governments of the Mexican
states in the 1988 General Ecology Law. It also established a system to divide federal and
local environmental powers within the Federal District of Mexico City. State legislatures are
in turn expected to distribute environmental powers between the state government and local
municipal governments.
The General Ecology Law and most of the environmental regulations issued to date
contemplate a significant role for the states in environmental protection. Article 4 states that
all "matters of a general scope throughout the Nation," or "matters of interest to the federal
government," are the responsibility of the federal government. All other environmental
matters fall within the competence of the states and municipalities. Environmental matters
that fall within federal jurisdiction are delineated in Article 5, and include high risk
activities, environmental emergencies and contingencies, and activities relating to hazardous
materials or wastes. Under Article 6 of the General Ecology Law, state and local
governments have responsibility in such areas as regulating and controlling water pollution
within state jurisdiction, verifying vehicle emissions, operating air quality monitoring
systems, routine monitoring and enforcement of regulations and standards for water pollution
from municipal sewage systems, regulating and disposing of solid wastes, and creating and
managing state or municipal natural protected areas.
The interaction between federal and state environmental regulation in Mexico is
similar to the U.S. model. For example, to achieve ambient air quality standards Mexico
relies on a source permitting program which is meant to be implemented by the Mexican
states in accordance with Mexico's air regulation. Similarly under Mexican water pollution
law, state governments may authorize wastewater discharges into bodies of water or into the
soil or subsoil.10 Mexican state laws issued pursuant to the General Ecology Law must be
at least as stringent as the applicable federal regulation or standard.
10This is true for most categories of discharges, although the federal government retains jurisdiction for
certain kinds of sources, such as 'high-risk" activities
20
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At the present time, however, Mexico's environmental programs are far more
centralized overall than their counterparts in the U.S., and a much larger portion of Mexico's
environmental protection regime is developed and implemented by SEDESOL and other
federal agencies such as the National Water Commission (CNA), than is the case under the
U.S. environmental regime. Although the Mexican law and regulations contemplate an
expanded role for the states, this has not yet been fully realized. However, since the General
Ecology Law was enacted in early 1988, 29 of the 31 Mexican states, including all of the
states along the U.S.-Mexican border, have adopted environmental statutes.11 This figure
can be compared to November 1991, in which only 18 of the 31 states had enacted a
comprehensive environmental statute. The decentralization process in Mexico is thus
proceeding at a fairly rapid pace. To date, however, the states have not developed their own
NTEs. It is legally permissible for states to develop technical standards that are higher or
more stringent that Mexican federal standards, but no state has yet done so in the
environmental area.
In the states that have yet to adopt environmental statutes, exclusive jurisdiction over
most environmental matters is left to the federal government. SEDESOL expects that the
Mexican states will assume more responsibility for environmental protection in the future and
is examining how it might promote that policy.
"According to the latest information available to EPA, the two Mexican states that currently do not ha\e
environmental laws are Campeche and Tlaxcala. The Federal District, like the states, must adopt a legal
program relating to the environment but, because of the District's special status as the nation's capital,
SEDESOL retains significant environmental authority within the Federal District.
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IT. SPECIFIC PROGRAM AREAS
A. AIR POLLUTION
1. Summary of the U.S. Clean Air Act
Until the enactment of the 1990 Amendments, the Clean Air Act ("CAA") could be
described generally as being divided between stationary source control requirements (in title I
of the Act) and mobile source control requirements (in title II). With the 1990 Amendments
that general division still holds true, although the statute has become more complex through
the addition of new, free-standing titles designed to combat acid rain and stratospheric ozone
depletion.
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 under
CAA section 109, and state planning to attain and maintain those standards through the state
implementation plan ("SIP") process under section 110 and Part D of title I. The criteria
pollutants are ozone (O3), sulfur dioxide (SOJ, paniculate matter (now measured in terms of
fine paniculate matter (PMIO), replacing total suspended particulates (TSP)), carbon
monoxide (CO), oxides of nitrogen (NOJ and lead (PB). Primary NAAQS are set to protect
public health, while secondary standards protect the public welfare from any known or
anticipated adverse effects." See CAA Section 109(b). Both are established without regard
to cost.
The CAA requires states to demonstrate "reasonable further progress" toward
attainment in those areas not meeting the NAAQS ("nonattainment areas") and to impose
"reasonably available control technology" on certain existing stationary sources in such
nonattainment areas. Among other nonattainment provisions, the 1990 CAA Amendments
call for further classification of nonattainment areas for certain pollutants, depending on th.
severity of the pollution problem, and establish dates by which a state plan must achieve
attainment of NAAQS.
New and modified major stationary sources in nonattainment areas must undergo u '•. •
is generally referred to as "new source review." See CAA section 173. These sources m.*
install technology that will meet the "lowest achievable emission rate" and obtain emission
offsets from other sources in the nonattainment area. In attainment areas, Pan C of Title 1
requires major new sources to undergo a "prevention of significant deterioration" ("PSD")
review. See CAA section 165. Such sources must install "best available control technoloev
and demonstrate that the cumulative impact of new emissions in the area does not violate a
specified increment of air pollution. Sources subject to PSD review must also demonstrate
that they will not cause an adverse impact on air quality-related values (including visibility)
in national parks and other "Class I" areas. See CAA section 165(d). In addition, section
169B requires states to adopt regulations that provide reasonable progress toward remedying
present (and preventing future) visibility impairment in Class I areas. For both attainment
22
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and nonattainment areas, new sources must comply with any applicable "new source
performance standards" ("NSPS") promulgated under section 111.
The CAA requires EPA to set standards for hazardous air pollutants under section
112. Between 1970 and 1990, EPA promulgated seven such standards. 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 contain several new provisions for addressing acid rain,
stratospheric ozone and permitting, in addition to an important new provision for the
development of "clean fuels" for mobile sources. The acid rain provisions are contained in a
new title IV which, among other things, calls for a 10 million ton reduction in SO7 emissions
from 1980 levels, primarily from utility sources. Sulfur dioxide reductions are to be met
through an innovative, market-based system in which sources are allocated allowances based
on required emission reductions and past energy use. These allowances are marketable.
A new title VI governs stratospheric ozone and global climate protection. It requires
EPA to list specified ozone-depleting substances and their ozone-depletion and global
warming potentials. In addition to numerous other provisions, this title calls for more
stringent interim reductions for various substances than is required by the Montreal Protocol,
including the phase-out of all HCFCs12 by the year 2030.
Title V of the 1990 CAA Amendments also added a new operating permit program
All major sources (as defined under the Act), sources subject to acid rain requirements and
sources subject to section 111 and 112 standards will be required to obtain operating permits
The permit will contain all applicable CAA requirements for the regulated source, which will
have to pay permit fees to cover the costs of the permitting program.
Title II of the CAA has long required motor vehicles to meet emission standards
specified by EPA and has allowed the Agency to regulate fuel and fuel additives. Among ;'v
numerous changes to title II made by the 1990 Amendments is the requirement that EPA and
the states now develop new fuel regulation programs. Specific initiatives will include: a
clean fuels program for California and for certain centrally-fueled fleets in other areas; a
reformulated-gasoline program in the nine worst ozone areas in the country; an oxygenated
fuels program for 41 areas with carbon monoxide problems; controls to limit emissions
during vehicle refueling; and volatility standards for gasoline.
1JHCFCs (hydroclorofluorocarbons), like CFCs (clorofluorocarbons), are a class of ozone-depleting
chemicals
23
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2. Mexico's Legal Framework for Air Pollution Control
The 1988 General Ecology Law, articles 110 through 116, provides the legal
framework for Mexico's current air quality program. The General Ecology Law grants
SEOESOL and other specified agencies power to: issue technical emission and ambient
standards; adopt standards for test methods and air quality monitoring systems; enter into
agreements with industry and require the installation of pollution control equipment (in areas
of federal jurisdiction); issue motor vehicles emission standards; and promote the
establishment of motor vehicle inspection systems. General Ecology Law, article 111.
The law similarly empowers state and municipal authorities to enter into agreements
with industry and require the installation of pollution control equipment in areas within their
jurisdiction. In addition, state and local governments are further responsible for: compiling
stationary source emission inventories; establishing vehicle inspection programs; establishing
air monitoring networks (in coordination with SEDESOL); regulating traffic and emissions
from non-federal public transportation vehicles; taking preventive measures to avoid serious
air pollution; and imposing sanctions for violations of state and local laws. General Ecology
Law, article 112.
Article 113 of the General Ecology Law establishes the general principle that air
pollutants may not be emitted when they may cause ecological imbalances or damage to the
environment. Sources of pollution must obtain prior authorization when their emissions
contain hazardous materials or residues. Article 1 IS states that when SEDESOL determines
land uses under urban development programs, consideration should be given to topographic
and meteorological conditions, to ensure proper dispersion of pollutants. Finally, section 116
authorizes tax incentives for reducing air pollution.
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 addresses air pollution nationwide, covering such issues as
stationary source controls, mobile source controls, establishment of a national air quality
monitoring system, and enforcement, including sanctions. The second regulation is much
more narrow in scope, addressing air pollution only in Mexico City and its environs. It
covers the regulation of traffic, motor vehicle emissions and vehicle inspections. Most of the
technical standards (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, as for special permitting, test methods and specifications for test
equipment.
All of the existing technical norms are subject to the sunset provisions discussed
previously in the section of this report on Mexico's new law on cost-benefit analysis. Some
of the superseding norms ("Official Mexican Norms" or "NOMs") have been published for
24
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public comment,13 with many more planned. Those that have been published may be
subject to further revision depending on the results of the public comment period established
by the new law, and some of the newly repromulgated norms, particularly in the area of
water pollution control have been finalized. Additional norms are now being finalized on
virtually a daily basis.
3. Ambient Standards and Planning
Both the Mexican and U.S. air pollution control programs require the adoption of
ambient air quality standards for certain specific pollutants. See General Ecology Law, title
IV, art. 111(1), and CAA § 109. Mexico has issued such standards, called "maximum
permissible levels" ("MPLs"), for O3, CO, SO7, NO^TSP, and PB. With the exception of
TSP, which has been dropped by the U.S. program, these are the same pollutants covered by
the U.S. NAAQS. As Table 6 demonstrates, many of the health-based MPLs and NAAQS
are the same, or nearly the same, in both countries.
13National norms published to date include methodologies for measuring ambient CO, TSP, O3, NOX and
SO2 (NOM-PA-CCAM-001/93 - 005/93), as well as other norms establishing 'smokestack" limits for certain
types of sources and 'tail pipe* emissions standards for automobiles
25
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Table 4 -- Side-by-Side Comparison of Mexico's Ambient Air
Quality Standards and U.S. Ambient Air Quality Standards
POLLUTANT
Sulfur Dioxide (SO2)
Nitrogen Dioxide (NO2)
Paniculate Matter (PM)
Carbon Monoxide (CO)
Ozone (O3)
Lead(PB)
MEXICO
.13 ppm (24-hour)14
395 ug/m3 (1-hour)
275 ug/m3 TSP" (24-
hour)
14,950 ug/m3 (8-hour)
.11 ppm (24-hour)
1.5 ug/m3 (3-month)
UNITED STATES
. 14 ppm (24-hour)15
100 ug/m3 (annual)
150 ug/m3 PM-10 (24-
hour)17
10,000 ug/m3 (8-hour)18
. 12 ppm (24-hour)
1.5 ug/m3 (3-hour)
Source: EPA, Office of Air and Radiation, Office of Policy Analysis and Review
14 For chart, parentheticals indicate averaging time for the standard.
13 The U.S. also has an annual ambient S02 standard, for which there is no equivalent standard in Mexico
"Mexico's standard is for total suspended participates, while the U.S. standard is for particles with
diameters of 10 microns or less. When the U.S. standard was expressed in total suspended participates, it was
set at a level equivalent to Mexico's current standard.
17The U.S. also has an annual PM standard, for which there is no equivalent standard in Mexico.
18The U.S. also has a short-term (1-hour) standard, for which there is no equivalent Mexican standard
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However, there is additional protection under the U.S. NAAQS system that is not
present in Mexico's regulatory scheme. First, as noted in the footnotes to the table, a
number of the U.S. NAAQS involve both short and long averaging periods thereby providing
protection against both acute and chronic exposure levels. In addition, the U.S. also has
secondary NAAQS for several pollutants which provide additional ambient protection beyond
the primary NAAQS. Finally, the PSD program also provides ambient "increments," which
limit the amount of degradation that can take place in areas in attainment with a NAAQS. In
national parks and other specially-protected areas, the increment is quite small allowing little
degradation of air quality. Elsewhere, the increment is larger but still typically limits
ambient loadings to levels well below the NAAQS. At this time, Mexico does not have such
a program although it has committed to exploring the issue for the Mexican border area near
the U.S."
The MPLs appear to be used primarily to identify areas with dangerous levels of
pollution and for triggering "contingency plans." In Mexico City, when meteorological
conditions indicate that concentrations will not otherwise decrease, the contingency plan calls
for imposing restrictions on dnving and for varying degrees of production cutbacks by
certain industries. In addition, new sources must show that they are permitted where their
emissions will not violate a MPL. However, it is not clear to what extent modeling and
other standard tools of analysis are used to predict violations and limit source emissions in
these situations.
A major difference exists in the air monitoring capabilities of the two countries. In
the U.S., a nationwide air monitoring system operated by state and local governments is able
to monitor concentrations of all criteria pollutants at numerous locations in each of the 50
states. Mexico has yet to develop such a nationwide system. In fact, there are very few ar
quality monitors in Mexico outside of Mexico City, Mexico is beginning to establish
monitoring systems in border cities and other parts of Mexico. SEDESOL recognizes the
need to improve its monitoring capability outside of Mexico City and hopes to begin this
process when expected loans from the World Bank are approved.
Mexico and the U.S. have different approaches for attaining ambient standards. In
the U.S., the states are responsible, with federal oversight, for ensuring NAAQS attain mi—
The states develop SIPs which are submitted to EPA for approval. Attainment and
maintenance of the standards are demonstrated through air quality modeling, which relates
emissions to ambient air quality standards. In addition, states must adopt a number of
measures prescribed by the CAA and include them in their plans.
Mexico, on the other hand, relies on a source permitting program instead of on state
or local air quality planning with federal oversight. Under the General Ecology Law, the
19See Joint Communique by Secretary Luis Donaldo Colosio and Administrator Carol Browner. Enscn.i.
Mexico (October 26. 1993).
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regulation of most types of sources is reserved to the states without federal oversight, see
General Ecology Law article 6, while other sources, notably "high nsk activities" among
others, are reserved for federal control. General Ecology Law article 5(X). At the moment,
all permitting is still earned out at the federal level.
Like the U.S., Mexico has developed a system for further restricting emissions in
chronically polluted and vulnerable areas, called "critical zones." A critical zone is defined
as "[a] zone, in which -- because of its topographic and meteorological conditions -- high
concentration of contaminants are found." Air Regulation (national), article 6. Two critical
zones along the U.S.-Mexico border — Ciudad Juarez and Tijuana -- appear to have been so
designated because of their air pollution problems.
The General Ecology Law also authorizes SEDESOL to engage in a certain amount of
additional land use planning to protect some areas and control others. Article 1 IS states that
when SEDESOL determines land uses under urban development programs, consideration
should be given to topographic and meteorological conditions to ensure proper dispersion of
pollutants. The Clean Air Act provides a similar, though more sweeping, provision in non-
attainment areas. Section 173(a)(5) now requires a permitting authority to consider
alternative sites, size, production processes, and environmental control techniques as part of
the new and modifying source permitting process.
No permit may be issued unless the applicant demonstrates that the benefits of the proposed
source significantly outweigh its environmental and social costs.
4. Stationary Source Controls
Mexico controls stationary source air emissions through a source registration and
permitting program. SEDESOL plans to eventually turn most permitting responsibilities o\er
to the states (except where there is federal jurisdiction or where a source affects air qualu\ m
two or more states), as contemplated by Mexico's air regulation. See Air Regulation
(national), articles 17-19.20 Since state and local governments do not yet have permitting
infrastructures established, however, SEDESOL has been issuing permits for sources in arc?s
of non-federal jurisdiction as well. To date, SEDESOL has focused on the largest types o>
facilities.
Permitted emission limits may vary depending on whether the source is new or
existing and where the source is located. If a norm or standard has been established for a
given type of source, the norm or standard will be used to help set the emissions limits.
At this time, it is difficult to reach many conclusions regarding the comparative
stringency of the norms applicable to stationary sources since Mexico is in the process of
sunsetting its existing technical norms and adopting new standards. Thus only a few
^Regulation of the General Law of Ecological Equilibrium and Environmental Protection- Control and
Prevention of Air Contamination, issued November 25. 1988
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stationary standards exist, including source-specific standards for sulfuric acid plants (NOM-
PA-CCAT-001/93), cement plants (NOM-PA-CCAT-002/93) and coal-fired power plants
(NOM-PA-CCAT-0005/93), as well as general PM limits for sources not otherwise covered
by a source-specific standard. At least some of the new norms are substantially less
stringent than the comparable provisions of U.S. law.21 However, the Mexican standards
are apparently subject to further revision.
In the United States, the NSPS provide a floor only for control technology
requirements. A large new or modifying source must also secure a new source review
permit. In a nonattainment area, this process requires the source to meet the "lowest
achievable emissions rate" ("LAER") and secure offsetting emissions reductions from other
sources to completely offset the emissions from a new source. In areas in attainment with a
NAAQS, the source must still comply with the PSD program which requires the source to
install "best available control technology" (BACT) and model its air quality impacts to ensure
that the new emissions will not cause or contribute to a violation of a NAAQS or a PSD
"increment" and will not adversely impact any air quality related values (including visibility)
at any National Park or other protected area.
As indicated, few Mexican norms for stationary sources exist, leaving large segments
of industry uncovered at this time. For instance, a U.S. General Accounting Office (GAO)
study conducted in the spring of 1991 reported that Mexico had not yet established air
pollution standards for paint coatings and solvents in the border region.
21 As part of its analysis, EPA reviewed the Mexican norm applicable to coal-fired power plants (NOM-
CCAT-005/93) and compared it to the relevant U.S. NSPS (40 CFR 51.60.40a). Pursuant to the Mexican
norm, a plant's emissions of SO2, PM, NOX and CO are subject to limits measured by kilograms of pollutant
per cubic meter of dry coal burned. Because the Mexican emission standard is thus tied to coal density and
(Btu) value of the coal to be burned, conversion to comparable U.S. units must be based on the individual
characteristics of the coal and burners at issue. Based upon the coal's heat value, EPA staff estimate the
applicable standards for coal-fired power plants (compared to the relevant U.S. NSPS standards) to be as
follows:
Mexico United States
SO2 8.7 Ibs per million Btu .3 Ibs per million Btu
PM .31 Ibs per million Btu .03 Ibs per million Btu
NOx .86 Ibs per million Btu .5 Ibs per million Btu
The Mexican norm also has a CO limit, which the NSPS does not include (Note: The U.S. NSPS provide a
percentage reduction requirement as well as a target emissions rate. The U.S. NSPS figures above represent the
lower of the emissions rate or percentage reduction) It is important to note that the total annual SO2 emission-
in Mexico (approximately 700,000 tons) are some 25 times smaller than total U.S. SO2 emissions
(approximately 20,000,000 tons). Mexico views this disparity in per capita emissions as justification at this
stage for the current disparity in SO2 emissions standards for coal-fired power plants.
29
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SEDESOL states that permitted emissions standards for sources located in critical
zones are often as stringent as U.S. standards and that for cases where no NTE is in place
they rely on EPA technical standards. These assertions were not venfied in conjunction with
this report. SEDESOL reports that it expects to promulgate 29 additional air norms before
the end of 1994.
SEDESOL states that it plans to eliminate the import and export of CFCs, which
destroy the stratospheric ozone layer, through the air emissions permitting process.
SEDESOL did not discuss with the members of the second legal mission how it plans to
address domestic CFC production. 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 has been
ahead of the reduction schedule for developing countries set forth in the Montreal Protocol
and has recently stated it will adhere to a "developed country" reduction schedule.
Regarding hazardous air pollutants, Mexico's law seems not to contain any program
comparable to that established by the CAA Amendments of 1990, although it does appear to
authorize development of such standards. Mexican law addresses toxic emissions by
requiring prior authorization for the emission of hazardous air pollutants.22 General
Ecology Law title IV, article 113. Moreover, Mexico could adopt norms in the future which
would regulate toxic emissions.
5. Mobile Source Controls
Mexico's mobile source control program is more easily compared to its U.S.
counterpart since both rely on essentially the same approaches, such as tailpipe emission
standards, vehicle inspection and maintenance, fuel content requirements and transportation
controls. The differences between the U.S. and Mexican systems lie primarily in the extent
to which each of these approaches are used or else in the stage of development of the various
implementing programs.
SEDESOL's power to control mobile sources derives from title IV of the General
Ecology Law. The Air Regulation (national), article 7, directs SEDESOL to work with
other federal agencies to develop and establish programs to reduce motor vehicle pollution
Articles 28-40 of the air regulation provide authority for such measures as inspecting vehicles
in the public transportation service and requiring repair of vehicles that fail inspection. The
General Ecology Law also gives SEDESOL special authority to address pollution in the
22EPA is seeking verification by SEDESOL of this information.
30
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Federal District, encompassing Mexico City and its environs, which is being exercised under
a separate, implementing regulation ("Federal District Air Regulation").23
Mexico appears to be moving quickly toward establishing a tailpipe emission control
program which is comparable to the one required in the U.S. The original NTE for light-
duty motor vehicles requires decreasing emissions beginning in 1989 with dramatic
reductions beginning in 1991, apparently envisioning a phasmg-m of cars with catalytic
conveners. The 1993 maximum permissible emission levels for hydrocarbons (HC), carbon
monoxide and nitrogen oxides are equivalent to current U.S. standards under the Clean Air
Act for light duty vehicles. These current U.S. standards are 0.41 HC, 3.4 CO, 1.0 NOX,
all in g/mi. All of these standards are based on the U.S. Federal Test Procedure.
The gasoline most commonly available in Mexico is leaded, although unleaded is
available in larger cities and on main truck lines. In December 1991, the Mexican
government cut the price margin between leaded and unleaded fuels in half (by raising the
price of leaded fuels at a faster rate). There is reported to be progress in making unleaded
fuel available in more of the country where unleaded is not currently available. Since
PEMEX, the nationally-run petroleum company, has a monopoly on the sale of vehicle fuels
in Mexico, the government is well-placed to ensure that this goal is met. In particular, the
government is seeking to ensure that unleaded fuel is available on all toll roads and major
inter-city routes. The volatility of PEMEX's gasoline is reported to be between 7.0 and 9.5
pounds per quare inch (psi).
Experience in the U.S. has shown that factors other than the availability of unleaded
fuel can impact the effectiveness of a mobile source control program. It is unclear at this
time whether Mexico will similarly address these issues. For example, the U.S. requires
compliance with standards for a specified useful life of a vehicle, but we do not know from
Mexico's published standards whether SEDESOL has or will adopt a similar requirement.
EPA's current regulations for passenger cars require that the standards be met for five years
or 50,000 miles. The 1990 CAA Amendments also will require that emissions standards be
met for 10 years or 100,000 miles, with different standards for the first and second 5-
year/50,000 mile segments. In addition, U.S. regulations contain warranty and recall
provisions and restrict the sale of "aftermarket parts" that could affect emissions performance
if a car's original equipment is replaced.
Inspection and maintenance of vehicles are critical to the success of any emissions
control program. Like the U.S., Mexico has such a program, although it is still being
developed. The General Ecology Law assigns primary responsibility for this activity to the
state and local authorities. General Ecology Law article 112(V). SEDESOL's role is to
promote the establishment of a network of vehicle inspection systems. General Ecology Law
^Regulation of the General Law of Ecological Equilibrium and Environmental Protection for the Control
and Prevention of Contamination Generated by Motor .Vehicles in the Federal District and the Municipalities in
its Suburban Zone, issued November 25, 1988.
31
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article 111(VI). SEDESOL, together with other agencies, has responsibility for inspecting
vehicles in the federal public transportation sector. Air Regulation (national), articles 30-40.
In 1989, SEDESOL published procedures and equipment specifications for inspecting tailpipe
emissions. See NTE-CCAT-013/89. Vehicles used for public and cargo transport on roads
under federal jurisdiction must be inspected semiannually.24
SEDESOL recently gained authority to regulate the content and characteristics of
automotive fuels, a function for which PEMEX previously had sole authority. EPA has had
such authority for many years. Unlike the CAA, the Mexican law contains no specific
provisions for introducing cleaner-burning fuels designed to reduce motor vehicle emissions.
The General Ecology Law and the air regulations provide for development and
implementation of transportation controls. Restrictions on automobile use, though rarely
adopted in the U.S., are fairly severe in Mexico City and have been a matter of everyday life
there for the past two years. Since 1989, Mexico City has had "no drive days." Each car is
prohibited from being driven one day out of the five-day work week; the last digit of the
license plate determines which day driving is prohibited.a In addition, driving may be
suspended in certain parts of the city when ambient pollution levels are high. See Federal
District Air Regulation, article 7.
B. WATER POLLUTION
1. The U.S. Clean Water Act
The U.S. Clean Water Act ("CWA") regulates point source discharges of pollutants
into U.S. navigable waters by directing the development of federal and state standards, uhii'
are implemented through a permitting system. The law prohibits unpermitted discharges ar.J
those that fail to comply with permit requirements. U.S. states have a critical role
throughout the entire process which is subject to EPA oversight for compliance with CWA
requirements (i.e., protect public health and welfare, enhance water quality and satisfy the
intent of the CWA).
Under the U.S. program, each pollutant discharge from a point source is subject to
effluent limitations based upon two considerations. The first is technology: all sources mu^
meet effluent limitations based upon the best available technology that is economically
achievable ("BAT"). EPA has established nationally-applicable, technology-based, efflue;1/
guidelines and standards for numerous categories of industrial dischargers. These guidelines
'agreement' of the Secretariat of Communications and Transportation issued May 3, 1990
aSee 'agreements* establishing the criteria for limiting car traffic in the Federal District, one issued
November 8, 1989, and the other March 1, 1990.
32
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and standards must be implemented in permits, as applicable. If no national guideline or
standard exists for a given type of source, the permit-issuing authority (which may be EPA
or an authorized state) must make its own determination of what limitations reflect
appropriate technology-based controls.
In addition to technology-based limitations, each permit must assure that discharges
will not contribute to a violation of water quality standards. States develop these standards
for individual bodies of water (or segments thereof) in accordance with water quality criteria
published by EPA and subject to EPA oversight and approval. The standards must assure
that the public will be able to use the water body or segment in question in the manner for
which it is designated (e.g., drinking or recreation).
Sources that discharge into publicly-owned sewage treatment works ("POTWs") must
also comply with pretreatment standards established by EPA and any additional limits
imposed by the POTW. POTWs are required to install secondary-level treatment systems (as
defined at 40 CFR part 133) unless they are granted a waiver, and are subject to the same
permit requirements as other dischargers.
2. Mexico's Legal Water Pollution Control Framework
Mexico's water problems arise from two factors: scarcity and pollution.
Uncontaminated water for drinking and other uses is in short supply, particularly in Mexico
City and other urban areas. Most rainfall in Mexico occurs in sparsely populated areas.
Accordingly, optimal use and preservation of the nation's limited water supply is a high
priority for SEDESOL and the Mexican National Water Commission ("Comision Nacional de
Aguas", or "CNA," a unit of the Secretariat of Agriculture and Hydraulic Resources
(SARH)). Among other things, SEDESOL is encouraging industry to look for ways to
minimize the generation of wastewater and to recycle process waters.
The Mexican General Ecology Law and the 1992 National Water Law set forth the
legal framework for water pollution control in Mexico. The General Ecology Law contain^
several provisions that specifically aim to prevent and control pollution of surface, ground
and marine waters and of aquatic ecosystems. It also contains provisions that impact
generally upon water pollution control. General Ecology Law, articles 117-133. The 1992
Water Law significantly enhances the responsibility and authority of CNA to control water
pollution. Mexico's water pollution law is further elaborated through a regulation issued m
197926 whicn controls contamination of the sea by spilled waste materials. To the extent
that it is consistent with the 1988 General Ecology Law, this regulation will be valid until
superseded by a newer version. As of March 1993, Mexico had also promulgated 33
26This regulation implements portions of Mexico's Organic Law of the Federal Public Administration.
article 30, section IV, and the multilateral Convention on the Prevention of Marine Pollution by Dumping of
Wastes and Other Matter, Nov. 13, 1972, 11 I.L.M. 1294 (London Ocean Dumping Convention)
33
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technical ecological norms, establishing standards for wastewater discharges from various
industries and other effluent sources.
The scope of the General Ecology Law is fairly comprehensive with respect to water
pollution, covering releases from: industry; municipalities; agricultural and livestock
activities; mining; the use of pesticides, fertilizers and toxic substances; infiltrations into
aquifers; solid waste dumping; and federal facilities. Id., articles 120 and 125. It prescnbes
principles for developing water quality and other technical standards, id., article 118, as well
as for exploiting and conserving marine resources, id., article 131.
Mexico's law also prescribes certain requirements for regulating discharges. For
example, wastewater discharges must be authorized by the relevant federal or state authority
and treated before entering a water body or wastewater treatment system. Id., article 121.
Sources must refrain from polluting the receiving body of water, interfering with water
purification and disturbing the sewer system or hydraulic capacity of the watershed. Id.,
article 122. Sources (whether discharging directly to the receiving water or indirectly
through the sewer system) must also meet technical standards developed at the federal level
and specific requirements ordered by SEDESOL or local authorities. Wastewater discharges
must also be registered with SEDESOL, which is charged with creating a national register of
discharges. Id., article 119. Releases containing hazardous materials or residues must
receive prior authorization from SEDESOL. Id., article 123.
Whereas the General Ecology Law sets forth general guidance for implementing water
pollution controls, the regulations, technical standards (NTEs) and ecological criteria set
forth the detailed requirements. For example, the statute calls for developing standards for
industrial sources to restore discharged wastewater "to proper conditions for use in other
activities and maintain the balance of the ecosystem." Id., art. 117(111). In the case of urban
wastewater, the statute calls only for undefined treatment prior to discharge. Id., art.
117(1V). While the federal government sets the standards for discharges into municipal
sewer systems, state and local governments are generally responsible for regulating mumcip.i
wastewater treatment systems themselves. See Id., art. 6(VIII, IX).
Discharges may also be subject to plant-specific "special conditions," set by CNA,
although this is most likely to be true for new sources. New source special conditions are
developed in conjunction with environmental impact assessments, which are required for all
significant public and private-sector projects. Facilities subject to special conditions are
required to report to SEDESOL monthly.
Three government agencies participate in setting water quality standards: SEDESOL.
CNA and the Secretariat of the Navy. In addition, the Secretariat of Health sets sanitation
standards and becomes involved in permit decisions if public drinking water supplies are
implicated. Id., articles 119, 124. CNA classifies the uses of water bodies which, along
with determinations of their "assimilative capacity," help to determine water quality
standards. If needed, the government can take measures to assure that the assimilative
34
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determine the use that can be made of a particular water body.
A preliminary examination of direct discharge norms for the five industries
(petroleum refining, iron and steel production, copper formation, and wood preserving)
identified by EPA Region EX as significant industries operating in the Mexican border area
near the U.S., revealed the following information:
o In general the Mexican standards for all five industries tend to be in the same
concentration range as the U.S. effluent guidelines and standards requiring
direct dischargers to use best practicable control technology currently available
(BPT).
o The Mexican industrial wastewater discharge standards rely exclusively on
pollutant concentration limits. Some U.S. direct discharge standards are also
based on pollutant concentration levels, while others are production-based
standards. For those U.S. standards which are production-based, the ability to
reduce the mass of the pollutant per unit of production is available at the Best
Available Technology (BAT) and the New Source Performance Standard
(NSPS) levels of pollution control. (BAT and NSPS represent higher levels of
control than BPT.) By reducing the allowed flow but maintaining the same
concentration in the effluent, the actual pollutant mass discharged is decreased
as flow reductions for BAT and NSPS, as specified in U.S. water pollution
regulations, are applied. Hence on an overall basis, the U.S. standards for
BAT and NSPS will be substantially more stringent than the existing Mexican
standards on direct discharges to surface waters. But when comparing BPT,
the first level of stringency in U.S. water pollution regulations to Mexico's
direct discharge standards, the Mexican standards are generally in the same
concentration range as the U.S. direct discharge standards.
o Considering the fact that most Mexican water pollution control efforts only
date back to 1988, it appears from their published standards for the five
industries examined that Mexico has laid the ground work for a meaningful
pollution control effort for industrial wastewater discharges to surface waters
However, for wood preserving, the U.S standard is zero discharge for most of
the industry. Hence, the Mexican direct discharge standard for wood
preserving is not as stringent as the U.S. standard.
The Office of Water also examined Mexico's indirect discharge standard and
concluded that it was generally within the same range as U.S. indirect discharge standards
However, Mexico uses a single set of limitations for all of the industries that it regulates for
36
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indirect discharges,27 whereas the U.S. has set pretreatment standards with numerical limits
for both existing and new sources for 50 industrial categories. In many cases, distinct limits
are set for subcategories for the 50 U.S. industries presently regulated. See Tables 5 through
14 for a more detailed numerical side-by-side comparison of the Mexican direct and indirect
discharge standards to U.S. direct and indirect discharge standards.
"A single Mexican standard, NTE-CCA-031/91. governs discharges into municipal treatment systems The
U.S. system includes general pretreatment standards as well as specific standards for categories of industrial
dischargers
37
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Table 5 -- Metal Finishing Industry - Direct Dischargers
MEXICO
MEXICO
U.S.
ILi
Parameter
pH(pH
units)
Settled
solids
Suspended
solids
Oil and
grease
Hexaval-
ent
chromium
Total
chromium
Copper
Nickel
Iron
Zinc
Cyanide
Cadmium
Lead
Aluminum
Barium
Man-
ganese
Silver
TTO
Dailv ave.
6-9
1 mg/1
50 mg/1
10 mg/1
0.1 mg/1
0.5 mg/1
0.5 mg/1
2.0 mg/1
1.0 mg/1
0.5 mg/1
0.1 mg/1
0.2 mg/1
0.1 mg/1
1.0 mg/1
2.0 mg/1
2.0 mg/1
N/A
N/A
Grabs
6-9
1.2 mg/1
60 mg/1
15 mg/1
0.2 mg/1
1.0 mg/1
1.0 mg/1
2.4 mg/1
1.2 mg/1
l.Omg/l
0.2 mg/1
0.4 mg/1
0.2 mg/1
1.2 mg/1
2.4 mg/1
2.4 mg/1
N/A
N/A
BFT
6-9
N/A
60 mg/1
52 mg/1
N/A
2.77 mg/1
3.38 mg/1
3.98 mg/1
N/A
2.61 mg/1
1.20 mg/1
0.69 mg/1
0.69 mg/1
N/A
N/A
N/A
0.43 mg/1
2.13 mg/1
BAT
6-9
N/A
N/A
2.77 mg/1
3.38 mg/1
3.98 mg/1
N/A
2.61 mg/1
1.20 mg/1
0.69 mg/1
0.69 mg/1
N/A
N/A
N/A
0.43 mg/1
2.13 mg/1
NSPS
6-9
N/A
60 mg/1
52 mg/1
N/A
2.77 mg/1
3.38 mg/1
3.98 mg/1
N/A
2.61 mg/1
1.20 mg/1
0.69 mg/1
0.69 mg/1 |!
N/A
N/A
N/A
0.43 mg/1
2.13 mg/1
Source: EPA, Office of Water, Office of Science and Technology, Engineering and AnaKsis
Division
38
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Table 6 -- Metal Finishing Industry - Indirect Dischargers
MEXICO
MEXICO
IZi
Parameters
Temperature
pH (pH units)
Settled solids
Oil and grease
Electric
conductivity
Aluminum
Arsenic
Cadmium
Cyanide
Copper
Hexavalent
chromium
Total
chromium
Iron
Mercury
Nickel
Silver
Lead
Zinc
Phenol
Active
substances to
methylene blue
Dailv avg.
—
6-9
5 mg/1
70 mg/1
10,000 micro
mhos/cm
10 mg/1
2 mg/1
0.5 mg/1
1.0 mg/1
5.0 mg/1
0.5 mg/1
2.5 mg/1
30 mg/1
0.01 mg/1
4.0 mg/1
1.0 mg/1
1.0 mg/1
6 mg/1
5 mg/1
30 mg/1
Grabs
40 degrees C
(313 K)
6-9
10 mg/1
140 mg/1
15,000 micro
mhos/cm
20 mg/1
4 mg/1
1.0 mg/1
2.0 mg/1
10 mg/1
1.0 mg/1
5.0 mg/1
60 mg/1
0.02 mg/1
8.0 mg/1
2.0 mg/1
2.0 mg/1
12 mg/1
10 mg/1
60 mg/1
PSES Daily
max.
0.69 mg/1
1.20 mg/1
3.38 mg/1
2.77 mg/1
3.98 mg/1
0.43 mg/1
0.69 mg/1
2.61 mg/1
PSNS Dailv
max.
0.11 mg/1
1.20 mg/1
3.38 mg/1
2.77 mg/1
3.98 mg/1
0.43 mg/1
0.69 mg/1
2.61 mg/1
39
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TTO (int.,
final)
--
—
4.57, 2.13 mg/1
2.13 mg/1
Source: EPA, Office oTWater, Otfice of Science and Technology, Engineering and AnaKsis
Division
40
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Table 7 -- Petroleum Refining Industry - Direct Dischargers
MEXICO
MEXICO
U.S."
U.S.
Parameter
pH(pH
units)
BOD
TSS
Oil and
grease
Hexa-
valent
chromium
Total
chromium
Phenols
(4AAP)
COD
Daily avg.
6-9
60mg/l
70 mg/1
40 mg/1
0.2 mg/1
1.0 mg/1
1.0 mg/1
100 mg/1
Grabs
6-9
72 mg/1
85 mg/1
48 mg/1
0.25 mg/1
1.2 mg/1
1.2 mg/1
120 mg/1
BPT29
6-9
48 mg/1
33 mg/1
15 mg/1
0.06 mg/1
0.6 mg/1
0.9 mg/1
248 mg/1
BAT30
N/A"
N/A
N/A
N/A
0.06 mg/1
0.6 mg/1
0.9 mg/1
248 mg/1
NSPS31
6-9
48 mg/1
33 mg/1
15 mg/1
0.06 mg/1
0.6 mg/1
0.9 mg/1
248 mg/1
28
In addition to the parameters listed in the table above, the following may be included in the U.S. as
special conditions of discharge: temperature, dissolved solids, chlorides, sulfates, mercaptans, arsenic, cobalt.
copper, iron, lead, mercury, nickel, M^mmm zinc, aluminum, and vanadium.
29The above levels of BPT control are daily maximum limits expressed in terms of concentration based on
existing flow for current regulatory basis (1979). The 40 CFR part 419 regulation for the petroleum refining
source category has 5 subcategones, uses production-based effluent limitations, and relies on size factors as uell
as process factors which depend on process configuration.
30The above levels of BAT control are daily maximum limits expressed in terms of concentration, based on
reduced flows per production units below 1979 basis. Actual regulation is in mass per unit of production
3 'The above levels of NSPS control are daily maximum limits expressed in terms of concentration, based
on reduced flows per production units below 1979 basis. Actual regulation is in mass per unit of production
32In the U.S. the five conventional pollutants (biochemical oxygen demand (BOD), total suspended solids
(TSS). pH, fecal coliform, and oil and grease) are not regulated under BAT controls by definition. Only non-
conventional pollutants and toxic pollutants are regulated under BAT controls. BPT and NSPS controls regulate
all three groups of pollutants.
41
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Sulfides
Ammonia
(asN)
Fecal
coliform
0.5 mg/1
N/A
100 /ml
1.0 mg/1
N/A
200 /ml
0.3 mg/1
33 mg/1
N/A
0.3 mg/1
33 mg/1
N/A
0.3 mg/1
33 mg/1
N/A
Source: EPA, Office of Water, Office of Science and Technology, Engineering and Analysis
Division
42
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Table 8 -- Petroleum Refining Industry - Indirect Dischargers
MEXICO
MEXICO
U.S.
U.S.
Parameters
Temperature
pH (pH units)
Settled solids
Oil and grease
Electric
conductivity
Aluminum
Arsenic
Cadmium
Cyanide
Copper
Hexavalent
chromium
Total
chromium
Iron
Mercury
Nickel
Silver
Lead
Zinc
Phenol
Active
substances to
methylene blue
Daily avg.
--
6-9
5 mg/1
70 mg/1
10,000 micro
mhos/cm
10 mg/1
2 mg/1
0.5 mg/1
1.0 mg/1
5.0 mg/1
0.5 mg/1
2.5 mg/1
30 mg/1
0.01 mg/1
4.0 mg/1
1.0 mg/1
1.0 mg/1
6 mg/1
5 mg/1
30 mg/1
Grabs
40 degrees C
(313 K)
6-9
10 mg/1
140 mg/1
15,000 micro
mhos/cm
20 mg/1
4 mg/1
1.0 mg/1
2.0 mg/1
10 mg/1
1.0 mg/1
5.0 mg/1
60 mg/1
0.02 mg/1
8.0 mg/1
2.0 mg/1
2.0 mg/1
12 mg/1
10 mg/1
60 mg/1
PSES Daily
max.
100 mg/1
PSNS Dailv
max.
100 mg/1
1 mg/1
43
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Ammonia (as
N)
TTO (int.,
final)
—
~
Note: The U.S. pretreatment standard
discharger category.
—
~
100 mg/1
100 mg/1
,
s in this table pertain to the petrochemical indirect
Source: EPA, Office of Water, Office of Science and Technology, Engineering and Analysis
Division
44
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Table 9 - Iron and Steel Industry - Direct Dischargers
MEXICO
MEXICO
U.S."
U.S.
Parameter
M
pH(pH
units)
Cyanide
Phenols
(4AAP)
TSS
Oil and
grease
Daily avg.
6-9
N/A
30 mg/l
50 mg/1
Grabs
6-9
N/A
36 mg/1
70 mg/1
BPT"
6-9
0.29 mg/1
41 mg/1
20 mg/1
BAT36
N/A38
0.29 mg/1
N/A
N/A
NSPS37
6-9
0.29 mg/1
41 mg/1
20 mg/1
33The blank spaces in the columns of the above table relating to U.S. standards indicate that a production-
based limit was not converted to a concentration-based limit. In addition, it should be noted that where U S
production-based standards have a significant recycle of wastewater. the mass of pollutant discharged is
significantly reduced and dilution as a means of meeting effluent guidelines is virtually eliminated
MIn addition to the parameters listed in the above table, the following parameters may be included in the
U S. as special conditions of discharge: temperature, nitrates, phenols, fluorides, zinc, cyanide, sulfides, lejJ
and manganese.
3SThe BPT control levels in the above table are based on technology using 'line and settle* with normalized
flow from existing point sources. Front end treatment uses phenolic recovery, flotation to separate oil and
grease, ammonia stopping, aeration, and neutralization where appropriate. Note: Regulations in 40 CFR pars
420 are production-based and use separate limits for different operations and/or waste streams in 12
subcategones.
36The BAT control levels in the above table are based on the same technology as the BPT control le\ eU
except for one subcategory where lower flow bases are achieved by recycle techniques, which has the effect of
reducing the allowed release of pollutant mass per day.
37The NSPS control levels in the above table are based on the same technology as the BPT and BAT
control levels, except for one subcategory in which the technology level is increased by adding multi-media
filters.
38In the U.S. the five conventional pollutants (biochemical oxygen demand (BOD), total suspended solid-
(TSS), pH, fecal cohform, and oil and grease) are not regulated under BAT by definition. Only
nonconventional pollutants and toxic pollutants are regulated under BAT. BPT and NSPS regulate all
groups of pollutants.
45
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Chromium
Zinc
Lead
Nickel
Ammonia -
N
Benzene
Benzo(a)-
pyrene
Naptha-
lene
TRC
Tetra-
chloro-
ethylene
30 mg/1
36 mg/1
0.44 mg/1
1.46 mg/1
0.42 mg/1
1.92 mg/1
133.3 mg/1
0.44 mg/1
1.46 mg/1
0.42 mg/1
1.92 mg/1
133.3 mg/1
0.44 mg/1
1.46 mg/1
0.42 mg/1
1.92 mg/1
133.3 mg/l
Source: EPA, Office of Water,
Division
Office of Science and Technology, Engineering and Analysis
46
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Table 10 -- Iron and Steel Industry - Indirect Dischargers
MEXICO
MEXICO
ILL.
ILL.
Parameters39
Temperature
pH (pH units)
Settled solids
Oil and grease
Electric
conductivity
Aluminum
Arsenic
Cadmium
Cyanide
Copper
Hexavalent
chromium
Total
chromium
Iron
Mercury
Daily avg.
—
6-9
5 mg/1
70 mg/1
10,000 micro
mhos/cm
10 mg/1
2 mg/1
0.5 mg/1
1.0 mg/1
5.0 mg/1
0.5 mg/1
2.5 mg/1
30 mg/1
0.01 mg/1
Grabs
40 degrees C
(313 K)
6-9
10 mg/1
140 mg/1
15,000 micro
mhos/cm
20 mg/1
4 mg/1
1.0 mg/1
2.0 mg/1
10 mg/1
1.0 mg/1
5.0 mg/1
60 mg/1
0.02 mg/1
PSES Daily
max.40
N/A
20 mg/1
0.34 mg/1
0.29 mg/1
N/A
0.44 mg/1
PSNS Dailv
max.41
N/A
20 mg/1
0.34 mg/1
0.29 mg/1
N/A
0.44 mg/1
j
I
39In addition to the parameters listed in the above table, the following parameters may be added in th? ' S
as special conditions of discharge: temperature, nitrates, phenols, fluorides, zinc, cyarude, sul fides, lead, ai._
manganese.
40The limits in this column of the table are based on technology using 'line and settle' with normalized
flow from point sources. Front end treatment uses phenolic recovery, flotation to separate oil and grease,
ammonia stripping, aeration, and neutralization where appropriate. Note: Regulations in 40 CFR part 420 arc
production-based and use separate limits for different operations and/or waste streams in 12 subcategones
41The limits in this column of the table are based on the same technology as die limits in the PSES
maximum column, except that lower flow bases achieved by recycle techniques has the effect of reducing the
allowed release of pollutant mass per day, and the technology level is increased by adding multi-media filter*
47
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Nickel
Silver
Lead
Zinc
Phenols
(4AAP)47
Active
substances to
methylene blue
Ammonia-N
4.0 mg/1
1.0 mg/1
1.0 mg/1
6 mg/1
5 mg/1
30 mg/1
~
8.0 mg/1
2.0 mg/1
2.0 mg/1
12 mg/1
10 mg/1
60 mg/1
—
1.92 mg/1
0.42 mg/1
1.46 mg/1
133.3 mg/1
1.92 mg/1
0.42 mg/1
1.46 mg/1
133.3 mg/1
Source: EPA, Office of Water, Office of Science and Technology, Engineering and Analysis
Division
42The blank spaces in the U.S. portion of this row indicates that the U S. production-based limits for
phenols (4AAP) were not converted to concentration-based limits
48
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Table 11 — Copper Forming Industry - Direct Dischargers
MEXICO MEXICO U.S.43 U.S. U.S.
Parameter
pH(pH
units)
Arsenic
Cadmium
TSS
Oil and
grease
Total
chromium
Copper
Zinc
Lead
Daily avg.
6-9
5 mg/1
0.01 mg/1
30 mg/1
10 mg/1
1.0 mg/1
1.0 mg/1
10 mg/1
5 mg/1
Grabs
6-9
6 mg/1
0.12 mg/1
35 mg/1
12 mg/1
1.2 mg/1
1.2 mg/1
12 mg/1
7 mg/1
BPT44
7.5 - 10
N/A
N/A
41 mg/1
20 mg/1
0.44 mg/1
1.90 mg/1
1.46 mg/1
0.42 mg/1
BAT45
N/A47
N/A
N/A
N/A
N/A
0.44 mg/1
1.90 mg/1
1.46 mg/1
0.42 mg/1
NSPS46
7.5 - 10
N/A
N/A
15 mg/1
10 mg/1
0.37 mg/1
1.28 mg/1
1.02 mg/1
0.28 mg/1
In addition to the parameters in the above table, the following parameters may be added in the U S as
special conditions of discharge: temperature; benzene; 1,1,1-Tnchlorethylene chloroform; 2-6 dimtrololuene
methylene chloride; naphthalene; anthracene; toluene; tnchloroethylene; beryllium; ethylbenzene, and antimon>
"The BPT control limits in this column are based on technology using 'line and settle* with normalized
flow from existing point sources. The basis for BPT are primarily for metals, oil and grease and suspended
solids removal. Oil skimming and chromium reduction are included when necessary. Note: Regulations in •>'
CFR part 468 are production-based and use separate limits for 17 different operations and/or waste stream*
The Combined Metals Data Base (CMBD) was used to determine treatment effectiveness and pollutant
concentrations.
4SThe BAT limits in this column are based on the same technology as the limits in the BPT column of this
table, except lower flow bases are achieved by recycle techniques, which has the effect of reducing the allo«.<.J
release of pollutant mass per day.
46The NSPS limits in this column are based on the same technology as the BPT and BAT limits in this
table, except the technology level is increased by adding multi-media filters and countercurrent cascade nnsing
47In the U.S., the five conventional pollutants (biochemical oxygen demand (BOD), total suspended solids
(TSS), pH, fecal coliform, and oil and grease) are not regulated under BAT by definition. Only
nonconventional pollutants and toxic pollutants are regulated under BAT. BPT and NSPS regulate all three
groups of pollutants.
49
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Nickel
TTO48
N/A
N/A
N/A
N/A
1.92 mg/1
0.010 mg/1
1.92 mg/1
0.010 mg/1
0.55 mg/1 1
0.010 mg/1 1
Source: EPA, Office of Water, Office of Science and Technology, Engmeenng and Analysis
Division
48ln the U.S. regulation governing direct discharges from the copper formation industry, the U.S define^
total toxic organics (TTO) to include: benzene; 1,1,1-tnchloroethane; chloroform; 2,6-duutrotoluene; eihvlene.
methylene; chlonde, naphthalene; n-nitrosodiphenylamine; anthracene; phenanthrene; toluene; and
tnchloroethylene.
50
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Table 12 -- Copper Forming Industry - Indirect Dischargers
MEXICO
MEXICO
U.S.
Parameters49
Temperature
pH (pH units)
Settled solids
Oil and
grease"
Electric
conductivity
Aluminum
Arsenic
Cadmium
Cyanide
Copper
Hexavalent
chromium
Total
chromium
Iron
Mercury
Dailv avg.
—
6-9
5mg/l
70mg/l
10,000 micro
mhos/cm
10 mg/1
2mg/l
0.5 mg/1
1.0 mg/1
5.0 mg/1
0.5 mg/1
2.5 mg/1
30 mg/1
?,01 mg/1
Grabs
40 degrees C
(313 K)
6-9
10 mg/1
140 mg/1
15,000 micro
mhos/cm
20 mg/1
4 mg/1
1.0 mg/1
2.0 mg/1
10 mg/1
1.0 mg/1
5.0 mg/1
60 mg/1
0.02 mg/1
PSES Dailv
max.50
7.5 - 10
20 mg/1
0.34 mg/1
0.29 mg/1
1.90 mg/1
0.44 mg/1
PSNS Dailv
max."
7.5 - 10
10 mg/1
0.20 mg/1
0.20 mg/1
1.28 mg/1
0.37 mg/1
49In addition to the parameters in the above table, the following parameters are included in the U.S as
special conditions of discharge: temperature; benzene; 1,1,1-tnchlorethylene; chloroform; 2,6-dmitrotoluene,
methylene chloride; naphthalene, anthracene; toluene; tnchloroethylene; beryllium; ethylbenzene; and antimony
50The technological basis for PSES is the same as for BAT in Table 11.
5lThe technological basis for PSNS is the same as for NSPS in Table 11.
S2In the U.S. the oil and grease parameter limits are used for alternate monitoring of TTO for this category
of indirect discharges from the copper forming industry
51
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Nickel
Silver
Lead
Zinc
Phenol
Active
substances to
methylene blue
TTO (int.,
final)53
4.0 mg/1
1.0 mg/1
1.0 mg/1
6 mg/1
5 mg/1
30 mg/1
--
8.0 mg/1
2.0 mg/1
2.0 mg/1
12 mg/1
10 mg/1
60 mg/1
~
1.92 mg/1
0.42 mg/1
1.46 mg/1
0.010 mg/1
0.55 mg/1
0.28 mg/1
1.02 mg/1
0.010 mg/1
Source: EPA, Office of Water, Office of Science and Technology, Engineering and Analysis
Division
S3In the U.S. regulation governing indirect discharges from the copper forming industry, the U S define-
total toxic organics (TTO) to include the following: benzene; 1,1,1-tnchloroethane; chloroform; 2.6-
dmitrotoluene; ethylene; methylene chloride; naphthalene; n-nirosodiphenylamine; anthracene; phenanthrene
toluene; and tnchloroethylene
52
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Table 13 -- Wood Treating Industry - Direct Dischargers
MEXICO MEXICO U.S.34 U.S. U.S.
Parameter55
pH(pH
units)
BOD
TSS
Oil and
grease
Hexava-
lent
chromium
Phenols
(4AAP)
COD
Sulfides
Ammonia
Fecal
coliform
Cadmium
Lead
Aluminum
Daily avg.
6-9
240 mg/1
ISO mg/1
100 mg/1
N/A
100 /ml
0.1 mg/1
0.2 mg/1
0.1 mg/1
Grabs
6-9
240 mg/1
180 mg/1
120 mg/1
N/A
200 /ml
0.2 mg/1
0.4 mg/1
1.2 mg/1
BEE
BAT
NSPS
54Wilhin 40 CFR part 429 governing the timber processing point source category in the U.S., there arc
three subcategones that deal with wood treating. In some cases the regulation specifies that *[t]here shall be no
discharge of process wastewater pollutants from into navigable waters." Such a limitation is referred to as
"zero discharge* and largely accounts for the absence of numerical limits in the U.S. portion of this table.
although for one subcategory in many of these parameters, a production-based limit is specified which was noi
converted to a concentration limit.
55No numerical values are stated for the following compounds that would be included in the U.S as special
conditions of discharge: benzofluoranthene; dibenzoanthracene; benzopyrene; tnchloromethane; phenanthrene
ethylbenzene; fluoranthene; naphthalene; fluorene, benzene, toluene; pyrene; indene; copper; lead, zinc.
chromium; nickel; mercury; and arsenic.
53
-------
1 Vanadium
Mercap-
tans
Source: EPA, Office of Water, Office of Science and Technology, Engineering and Analysis
Division
54
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Table 14 - Wood Treating Industry - Indirect Dischargers
MEXICO MEXICO U.S." U.S.
Parameters"
Temperature
pH (pH units)
Settled solids
Oil and grease
Electric
conductivity
Aluminum
Arsenic
Cadmium
Cyanide
Copper
Hexavalent
chromium
Total
chromium
Daily avg.
—
6-9
5mg/l
70 mg/1
10,000 micro
mhos/cm
10 mg/1
2 mg/1
0.5 mg/1
1.0 mg/1
5 mg/1
0.5 mg/1
2.5 mg/1
Grabs
40 degrees C
(313 K)
6-9
10 mg/1
140 mg/1
15,000 micro
mhos/cm
20 mg/1
4 mg/1
1.0 mg/1
2.0 mg/1
10 mg/1
1.0 mg/1
5.0 mg/1
PSES Dailv
max.5.8
100 mg/1
4 mg/1
5 mg/1
4 mg/1
PSNS Dailv
max.
56Within 40 CFR part 429, the U.S. regulation governing indirect discharges from the timber processing
point source category, there are three subcategones that deal with wood treating. The absence of mans
numerical limits in the columns of this table corresponding to U.S. standards indicates that zero discharge
requirements tend to apply to these categories.
57No numerical values are stated for the following compounds, but under special conditions they could be
assigned maximum permissible limits: alkalinity/acidity; heat; biochemical oxygen demand (BOD), chemical
oxygen demand (COD); phosphorous; heavy metals; nitrogen; dissolved solids; suspended solids; turbidity,
acrylonitnle; acrolein; aliphatic and halogenated aliphatic compounds; monocyclic and polycychc aromatic
compounds; phthalic acid esters; ethers; isoforon; nitroamines; and pesticides
58The numeric limits listed for certain parameters in this column indicate that identical concentration limns
of the amount specified are required in the U S for two of the industry subcategones for that parameter
55
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Iron
Mercury
Nickel
Silver
Lead
Zinc
Phenol
Active
substances to
methylene blue
30 mg/1
0.01 mg/1
4.0 mg/1
1.0 mg/1
1.0 mg/1
6 mg/1
5 mg/1
30 mg/1
60 mg/1
0.02 mg/1
8.0 mg/1
2.0 mg/1
2.0 mg/1
12 mg/1
10 mg/1
60 mg/1
Source: EPA, Office of Water, Office of Science and Technology, Engineering and Analysis
Division
56
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Under the 1992 Law on Measurement and Standardization, discussed earlier in section
on Mexico's new cost-benefit analysis law above, INE is required to transform all existing
NTEs into "official norms." This process, which was to have been completed by October
15, 1993, requires a cost-benefit review of virtually all environmental norms by INE staff.59
A new norm is then proposed, and submitted for review and approval to an ad hoc
subcommittee (with public and private members). The proposed norm, as modified, is then
submitted for review and approval to the National Committee on Norms. Following a 90-
day public comment period, the review process is repeated, after which the norm is signed
by the Director of INE and the Secretary of SEDESOL. As of October, 1993, 33 existing
water norms were repromulgated and 11 new norms are also in progress.
Requirements more stringent than those of the NTEs may be imposed with respect to:
(1) discharges to sources of drinking water; (2) underground injection (allowed only if study
shows that the aquifer won't be damaged); and (3) discharges to marine waters. Violators of
NTEs or other legal requirements are subject to closure and other penalties. Fines for
substantive violations may be levied up to the amount of 20,000 times the daily minimum
wage.
3. Federal. State and Local Roles
Both Mexico and the U.S. rely on federal, state and local permitting to implement
controls on dischargers. In the U.S., the federal government is responsible for developing
the technology-based effluent limitation guidelines and standards and the water quality
catena that form the basis for decisions about effluent limitations. The states are general I \
responsible for establishing water quality standards and for determining the specific effluent
limitations that apply in individual cases. Either level of government may be involved in
writing actual permits.
The breakdown of federal, state and local roles appears to be somewhat different in
Mexico. The Mexican federal government is responsible for developing technological
standards and criteria for evaluating water quality, while the Mexican states and localities are
responsible for municipal wastewater treatment systems, as in the U.S. The allocation of
responsibility for permitting or authorizing discharges, however, may be different. Under
Mexico's General Ecology Law, a significant amount of authorization responsibility is
reserved to the federal government. To the extent that CNA, the Secretariat of Marine
Affairs and SEDESOL are responsible for authorizing discharges into bodies other than
sewer systems, the federal government in Mexico may have more authority in Mexico than.
EPA does in the U.S., where the states are primarily responsible for permitting discharges
into water bodies.
"Standards that are not approved by an independent committee by October IS, 1993 (which is subject to
some extension) will become void. The law does allow for "emergency" norms, which are valid only for MX
months.
57
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It is important to note that Mexico's control system regarding municipal treatment
systems is not yet fully developed. In the U.S., municipal treatment systems must comply
with the secondary treatment requirements of 40 CFR part 133, unless a special waiver is
granted; effluent discharges from those systems must be permitted. In addition, U.S. sources
that discharge into municipal treatment systems are subject to federal pretreatment standards
Mexico's federal law calls for pretreatment of indirect discharges and standards for municipal
systems, and an NTE establishes standards for discharges into such systems. However, there
does not appear to be any federal requirement that local municipal systems employ
secondary, or even primary treatment, as those forms of treatment are defined under the
U.S. regulatory system.
A potentially important difference between the Mexican system and the U.S. system
for control of water pollution lies in EPA's legal mandate to maintain strong oversight of the
activities of the states. Under the CWA, while permit authority is shared by EPA and the
states, EPA must approve, and has oversight jurisdiction over, state permitting programs.
This federal oversight responsibility does not appear to be part of the Mexican system.
While the Mexican system also divides authority between federal and state/local authorities,
the law seems not to provide for the kind of extensive approval power over state/local
programs that is a hallmark of the U.S. system. 5ee_General Ecology Law, article 121.
This might have some bearing on the enforceability of the Mexican statute as compared to
the CWA.
4. The Permitting Systems
The Mexican water pollution legal regime appears to contemplate a regulatory system
that would control both point and non-point sources of pollution as broadly as the CWA In
fact, the Mexican system appears to go beyond its U.S. counterpart in applying to discharges
to ground water as well. Both the General Ecology Law and the CWA provide for the
adoption of wastewater discharge restrictions implemented through a federal/state permitting
program. Both rely on technology-based controls and effluent limitations, water quality
standards and consideration of the assimilative capacity of the receiving waters in
determining the level of control that is necessary for a given source.
Mexico's requirements for permitting point source discharges and for setting
maximum permissible limits ("MPLs") appear to be comparable to the CWA's permit and
discharge limitation system. Its water quality criteria, which appear to be similar to EPA s
water quality criteria (although used for a different purpose),60 are to be based strictly on
scientific evidence.
Mexican water quality criteria are supposed to be used in designating uses of water bodies. EPA's
criteria are used in establishing water quality standards, which will vary according to the designated use
58
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Mexico and the U.S. both subject new and existing sources to category-specific
technology standards, which to date in Mexico cover almost 30 different source categories.
In comparison, the U.S. has technical standards for SO categories of industrial dischargers.
Like the effluent limitations guidelines and standards promulgated by EPA, the Mexican
standards are based on economic and technical feasibility and often reflect technologies of
sedimentation, flocculation and precipitation. A significant difference, however, is that the
Mexican standards appear to focus primarily on the control of conventional pollutants (such
as pH, BOD, TSS), rather than toxic pollutants.
Although both countries use technical standards to restrict wastewater discharges, they
may treat new and existing sources differently. In Mexico, both new and existing sources
must at least meet the same standards for a given category, although some leniency is shown
toward existing sources in the amount of time that is allowed for them to come into
compliance. New sources in Mexico must also undergo an environmental impact review
which may lead to more stringent limitations. In the U.S., new sources must meet new
source performance standards, which may be more stringent than the requirements placed on
existing sources. Also, new source permits issued by EPA are subject to an environmental
impact review.
Based on the legal requirements alone, the two countries appear to have generally
comparable regimes for the control of water pollution. Differences may exist in the two
systems, however, depending on how the MPLs, criteria, permitting system and other
requirements are implemented in Mexico.
5. Monitoring and Reporting Requirements
The U.S. requires a great deal of self-monitoring by companies. This means thai
companies must conduct extensive testing on their discharges to water to determine what
pollutants are being released. The U.S. further requires companies to report the monthly
averages of their discharges, and in some cases, the daily emissions. In Mexico, on the
other hand, most of the monitoring so far has been done by federal inspectors. Furthermore.
although the situation is improving, SEDESOL's resources for inspections and testing ha\e
been limited and reporting systems are being developed.
As in the U.S., SEDESOL and CNA rely on monitoring to support enforcement
efforts; both agencies conduct periodic and surprise inspections of discharging facilities. In
addition, each facility with special conditions imposed must submit a monthly report. This is
a less frequent level of data collection and reporting than in the U.S., where the monthly
reports required under the National Pollutant Discharge Elimination System ("NPDES") are
supplemented by weekly and even daily reports, in some cases.
The information SEDESOL and the CNA collect is stored in paper format, rather than
in computerized systems. SEDESOL recognizes the need to develop further its data
59
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management systems and expects to apply some of its future resources to obtaining the
necessary equipment and support.
6. Public Involvement
In the U.S., the public is extensively involved in developing regulations as a result of
requirements for public notice and comment on proposed rules. The CWA also provides for
citizen enforcement of its provisions as a supplement to federal enforcement activities. By
way of contrast, there appears to be no legal requirement or systematic voluntary program in
Mexico to make effluent data available to the public. However, while Mexico does not have
the same tradition of public involvement in the administrative process as the U.S., the 1992
Law on Measurement and Standardization does provide for a 90-day public comment period
prior to the promulgation and revision of environmental standards, including water pollution
standards.
C. HAZARDOUS AND OTHER WASTES
Mexico's laws and regulations regarding hazardous waste are comparable in many
ways to their counterparts in the United States. There are, however, differences.
1. The U.S. Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. 6901 et seq.,
sets forth a comprehensive "cradle to grave" framework for hazardous waste management.61
Hazardous waste must be treated, stored or disposed of in accordance with permits which
incorporate substantive and procedural requirements specified in the statute and in federal
regulations. If transported off-site, the waste must be accompanied by a manifest showing
chain of custody and providing technical information about the waste. The statute and
regulations also restrict export of hazardous waste by requiring the consent of the receiving
country.
RCRA defines "hazardous waste" as a subset of "solid waste."62 Thus, the
definition of solid waste is critical to the applicability of RCRA, and EPA's regulations
address that definition in great detail. See 40 CFR part 260. The Agency has gone to
considerable lengths to delineate when a material is a waste as opposed to a product or m-
61 RCRA also provides for regulating non-hazardous municipal solid waste (RCRA subtitle D) and
underground storage tanks (Subtitle I). In both Mexico and the U.S., federal involvement in municipal waste is
confined to establishing technical standards; enforcement is a local concern. With regard to underground
storage tanks, Mexico has not yet established a regulatory program.
s:"Solid waste" may be in solid, liquid, or contained gaseous form.
60
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process material. A solid waste is considered to be a hazardous waste if it exhibits one of
more characteristics set forth in EPA regulations or is listed by EPA as a hazardous waste.
The "core" of RCRA regulation pertains to the treatment, storage and disposal
("TSD") of hazardous waste. Treatment, storage or disposal cannot take place without a
permit or without complying with "interim status" requirements.63 For the most part,
hazardous waste must be treated prior to disposal to a level that meets a "best demonstrated
available technology" criterion, in accordance with EPA regulations. See 40 CFR part 268.
RCRA also requires that surface impoundments and new or expanding landfills employ two
liners and a leachate collection system. EPA regulations impose numerous additional
technical operating requirements which apply directly to interim status TSD facilities, or are
incorporated into facilities' permits.64
U.S. hazardous waste regulations apply to a number of different types of units,
including tanks, containers, landfills, surface impoundments, injection wells, waste piles and
incinerators. Facilities containing these types of units must meet several requirements
relating to closure. For example, they must prepare a facility closure plan and provide
evidence of financial responsibility to undertake closure, post-closure care, and pay for
liability arising from any release of hazardous waste. They must also undertake corrective
action for any releases of waste constituents. In addition, the regulations specify how closure
may be accomplished. For landfills, construction of a cap and groundwater monitoring for a
thirty-year period are generally required. Principal provisions relating to the operation of
incinerators include the requirement to achieve a destruction removal efficiency of 99.99%
and to conduct a test burn of principal organic hazardous constituents before going into
operation.
2. U.S. Superfund Law
While RCRA is aimed primarily at the active management of hazardous waste, the
Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), *1
U.S.C. § 9601 et seq., establishes a program for responding to releases of hazardous
substances" or "pollutants or contaminants" into the environment from unmanaged dispose!
sites. CERCLA provides legal authority and financial resources for a federal response to
remediate such releases and also establishes a strict regime of liability for those responsible
for the releases.
°Facilities existing on November 19, 1980 that have applied for a RCRA permit can operate legal I > under
'interim status" if they comply with a number of requirements.
"Permits may be issued by EPA or by states authorized to implement the RCRA program.
"Hazardous substances, defined in section 101(10) of CERCLA, include but are not limited to RCRA
hazardous wastes
61
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3. Mexican
The 1988 General Ecology Law provides the general framework for Mexico's hazardous
waste program that sets the stage for more detailed regulations to be promulgated by the
President and implementing ecological technical norms (NTEs) to be issued by National
Institute of Ecology (INE). The General Ecology Law, like RCRA, strives to regulate
activities dealing with hazardous waste from generation, storage, treatment, and
transportation, to final disposition. For example, article 139 of the law provides:
Any discharge, deposit, or infiltration of polluting substances or materials into
the soils shall be subject to the provisions of this Law, its regulations, and the
technical ecological rules issued for such purpose.
Article 1S1 parallels U.S. law by requiring government authorization (in the U.S., a permit)
prior to hazardous waste management activities.
4. The Definition of Hazardous Waste
As in RCRA, the starting point of the Mexican hazardous waste program is what is
considered to be hazardous waste. The criteria for determining what is a hazardous waste
are set forth as characteristics in NTE-CRP-001/88, which also lists about 144 types of
industrial wastes that are defined as hazardous. The characteristics are very similar to those
used by EPA, although Mexico includes one, "explosiveness," that is not used in the U.S.
program.46
The Mexican legal regime for the control of hazardous waste, like that in the U.S ,
also contains a toxicity characteristic that is evaluated by means of an "extraction test."
NTE-CRP-002/88. This characteristic is shown if the test procedure yields any of a list of
51 chemicals in specified concentrations. The extraction procedure is very similar to, and is
perhaps based on, a November 7, 1986, proposed EPA regulation. That proposed regulation
would have established a toxic chemical leaching procedure (TCLP) for use in establishing
waste treatment requirements. Mexico's version is similar to the modified version of the test
that is now used in the U.S. under 40 CFR section 261.24.
The number of chemicals that can trigger a finding of hazardousness under the
Mexican extraction procedure is greater than under its U.S. counterpart. It is notewonh)
that 23 of the 27 chemicals on the Mexican hazardous waste list that are also considered
hazardous under RCRA through the TCLP have maximum permissible concentration (MFC)
levels that are lower than their TCLP equivalent. This means that the Mexican extraction
procedure regulation for these chemicals is more stringent than its U.S. counterpart. Only
three of the chemicals listed have lower limits under RCRA than under Mexican law.
"In EPA's view, the RCRA 'reactivity" characteristic encompasses explosivity as a hazardous waste trait
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As for the listed wastes, the Mexican program covers more characteristic wastes
.> ignitable, corrosive wastes) than the U.S. program under RCRA. However, the scope
of the listed wastes in the Mexican program is less than under RCRA. The Mexican
regulations include approximately 61% of the wastes included on RCRA's "K" list (i.e.,
wastes from specific sources) and 45% of those on the "F" list (i.e., wastes from non-
specific sources). Nearly all RCRA "F-code" wastes have at least some corresponding listing
in the Mexican regulations. The exact number of chemicals specifically listed under both
U.S. and Mexican law cannot be readily assessed, however, because the F-listings are
categorical and may include several chemical solvents. Regarding the other two RCRA lists,
Mexico's law includes none that are on RCRA's "P" list and only one that is on the "U"
list.67 "U" and "P" wastes are not high volume wastes, but they do tend to be among the
most toxic of the wastes regulated under RCRA.
In addition, the Mexican program does not appear to include a rule clarifying the
extent of regulation of waste mixtures and residues derived from the treatment of listed
wastes. Without coverage of mixtures and "derived from" wastes, the scope of the Mexican
hazardous waste listings may be much more narrow than the listings under U.S. law.
Mexican technical norm, NTE-CRP-003/88, goes into considerable detail on
determining incompatibility between two or more hazardous wastes to prevent problems that
can occur during improper storage. EPA simply prohibits the storage of incompatible
hazardous wastes, which are defined at 40 CFR section 260.10.
5. Mexican Regulatory Framework for Hfl^flrdous Waste
On November 25, 1988, Mexican President Miguel de La Madrid promulgated the
hazardous waste regulation implementing the General Ecology Law. This regulation
addressed the regulatory scheme to manage hazardous waste activities. Among its
noteworthy provisions of the regulation are the following:
Art. 6 — Generators must determine if their wastes are hazardous.
Art. 7 -- All persons intending to carry out activities in which hazardous waste rmghi
be generated or handled must be authorized to do so by SEDESOL.
Art. 8 -- Generators must keep a monthly log of hazardous waste that has been
generated; comply with NTE requirements regarding the handling, storage,
identification, transport, treatment, and final disposition of hazardous waste; and
provide a semiannual report to SEDESOL regarding hazardous waste that has been
transported during the reporting period.
87 Combined, there are over 400 separate wastes listings on the RCRA 'IT and "P" lists. The listings on
the "U" and "P" lists are for chemical commercial products.
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Art. 9 — Defines what is meant by activities dealing with hazardous waste.
Art. 10 -- SEDESOL's authorization is required for installation and operation of
systems for TSD, collection, reuse, and recycling of hazardous waste.
Article 11 - Requires an environmental assessment of anyone obtaining
authorization pursuant to An. 10.
Article 14 -- When storing or transporting hazardous waste, the generator must follow
NTE requirements.
Art. IS -- Imposes requirements for storage areas.
Art. 18 - If they produce leachate, bulk materials may not be stored in unroofed
areas.
Art. 21 -- Movement of waste into and out of storage areas must be recorded in a log.
Art. 23 — Before transporting hazardous waste to a treatment facility or for final
disposition, the generator must obtain and use the proper manifests from SEDESOL.
Art. 24 -- Transporters and the receiving facility must file semiannual reports with
SEDESOL regarding the hazardous waste that was transported or received for final
disposition.
An. 27 ~ Vehicles intended for hazardous waste transport must be registered with the
Secretariat of Commerce and Industrial Development (SECOFI) then may be used
only for such transport (except for container haulers).
An. 35 ~ Leachate from confinement cells must be collected and treated in
compliance with NTE requirements.
Art. 39 -- Polychlorinated biphenyl (PCB) wastes must be destroyed.
Art. 40 -- SEDESOL may require treatment of certain wastes prior to disposal.
Art. 42 - In the event of a release of hazardous waste, the generator must
immediately notify SEDESOL with the pertinent information regarding the release and
measures taken to clean up the affected area.
Two important components of the Mexican legal framework regarding regulation of
hazardous waste are the authorization process and the manifest system. Pursuant to
Mexican law, persons who wish to construct a facility that will either generate or manage
hazardous waste must receive prior authorization from INE. The first step in obtaining
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authorization is to apply to the INE General Directorate for Environmental Standards for
authorization. In the authorization application, the applicant must state the type of waste that
would be generated, describe the geographic area in which the proposed facility would be
located, and describe the type of management that would be provided at the facility. The
applicant must also describe the proposed facility itself. This is similar to RCRA which
requires a part A and B application. Part A requires general information about the proposed
facility, and Pan B requires extensive highly technical information.
Second, the applicant must obtain zoning authorization to construct the proposed facility
from the state and/or municipal government with jurisdiction over the area on which the
proposed facility is to be built.
The applicant must then prepare an environmental impact study of the area for the
proposed site. Pursuant to Article 3, there are three types of environmental impact studies: a
general study, an intermediate study, and a specific study. The applicable environmental
study depends on the type of industry for which a permit is requested. General and
intermediate environmental studies involve industries connected to urban activities, such as
hospitals and schools. Specific environmental studies involve such industries as
petrochemical industries and pharmaceutical industries. Obviously, the requirements for the
type of environmental impact study vary depending on the type of study, with the specific
environmental study having the most requirements and the general environmental study
having the least requirements. Furthermore, when dealing with high risk activities, the
applicant must prepare a risk study. The risk study primarily deals with the dangers
involved in high risk activities, such as the implications of an explosion at the facility site or
the release of hazardous waste. In contrast, RCRA does not require specific environmental
impact studies and risk studies in considering siting of a facility.
The applicant must then submit for review the detailed plans of the construction and
operation of the proposed facility with other information such as a description of processes,
operating manuals, the design of operation, etc.
Next the applicant must obtain authorization to construct the facility from INE's General
Directorate for Environmental Standards. If the operation of the facility will involve any
discharges of wastewater, the applicant must get authorization for the water discharge from
the applicable federal, state, and municipal governments.
Finally, the applicant must obtain the authorization to operate the facility from INE.
Once the applicant receives authorization to operate the facility, the applicant must present
SEDESOL with manifests required of a facility that generates hazardous waste, as discussed
below.
Construction of a new facility is subject to detailed location standards. NTE-CRP-
008/88 sets forth the requirements that sites must meet if they are to be used for the
controlled "confinement" of hazardous wastes. In some respects (e.g., siting landfills in
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zones connected to groundwater aquifers), the NTE is more stringent than its counterpart
EPA regulations; in others (e.g., siting in flood and seismic zones), the Mexican approach is
less stringent. Few off-site waste disposal facilities are currently authorized and operating in
Mexico. SEDESOL 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 which can
validly prohibit the importation of hazardous waste. However, SEDESOL is promoting the
creation of waste management facilities. In February 1993, SEDESOL officials indicated
that they are reviewing 26 license applications for hazardous waste recycling, incineration
and disposal facilities nationwide.
As in other areas of environmental regulation, Mexican controls on hazardous waste
TSD facilities tend to be more stringent for new facilities than for existing ones (although
very few TSD facilities currently exist in Mexico). New facilities are subject to detailed
siting criteria. Also, existing sources are allowed some time to comply with the
requirements (new sources generally are not allowed to operate unless and until the
requirements are met). SEDESOL's policy is that new facilities must use best available
technology, while existing sources are called on to optimize their processes and recycle.
6. Design. Construction and Operation of Disposal Facilities
Ultimately, both the U.S. and Mexico require hazardous wastes to be disposed of in
facilities that meet applicable regulations. In Mexico, four NTEs pertain to the siting of
disposal facilities and to their design, operation and construction:
NTE-CRP-008/88 ~ siting requirements for the controlled confinement of hazardous
waste;
NTE-CRP-009/88 — prerequisites for the design and construction of disposal sites.
including "support services;"
NTE-CRP-010/88 -- design, construction, and operation of "confinement cells". ar.J
NTE-CRP-011/89 — prerequisites for operating a disposal site.
Hazardous waste for disposal in Mexico must be disposed of in a controlled
confinement or disposal facility in accordance with applicable NTEs and other requirements
With the exception of requiring treatment of ignitable and incompatible wastes prior to
disposal, however, SEDESOL has not yet issued treatment-oriented land disposal restriction^
comparable to those under RCRA or addressed the issue of leaking underground storage
tanks. Mexico's hazardous waste regulation, however, allows SEDESOL to issue technical
norms prescribing treatment standards for individual wastes and SEDESOL has indicated that
it intends to address these issues in the near future. The secretariat is also legally authorized
to require treatment-oriented land disposal restrictions on a case-by-case basis or for certain
individual wastes.
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Mexico's regulations for landfills apply to any controlled confinement system for
hazardous waste management, and therefore could be interpreted as being broad enough to
apply to other land disposal units, such as surface impoundments or waste piles. EPA,
however, has no information as to what extent these other land disposal units are utilized in
Mexico, nor any information verifying that the regulations do in fact apply to other land
disposal units in addition to landfills. EPA did not find any regulations or standards
governing treatment units such as incinerators, cement kilns burning hazardous waste as fuel
(other than paniculate emissions standards which are applicable to all cement kilns operating
in Mexico), or tanks. The issue of whether Mexico's hazardous waste regulations apply to
disposal units other than landfills is important because the disposal of liquid hazardous wastes
into landfills is restricted in Mexico (although not as strictly as under U.S. law), and
presumably must be handled in other types of units.
Other design requirements for land disposal units also appear to be somewhat less
stringent than the U.S. program, such as allowing the use of concrete containment walls and
the disposal of bulk wastes with up to 30% liquids into landfills. Also, while the NTEs do
require leachate collection and treatment, they do not require the installation of a double liner
below the waste deposited. (The double liner is required by U.S. law for all landfills
constructed after 1984.)
Another important element of the U.S. program for management of hazardous waste
landfills under RCRA is groundwater monitoring. The Mexican hazardous waste system
contains groundwater monitoring provisions, but they are very general as compared to the
requirements of the U.S. program. For example, there is no point of compliance specified,
no specificity as to constituents to be monitored, and no performance standard. Because
EPA does not know how these requirements are applied, EPA is unable to evaluate at the
present time whether Mexico's groundwater monitoring program associated with hazardous
waste disposal is significantly different than that under U.S. law.
7. Record Keeping and Reporting Requirements
Mexico has extensive recordkeeping and reporting requirements for the management
of hazardous waste. There are seven types of manifests that are used in the Mexican
regulatory system pertaining to hazardous waste. The following list describes these
manifests:
1) the manifest required of generators in which the generator provides an inventory of
chemicals used at the facility;
2) the reporting manifests required of generators, transporters, and final disposition
facilities in which quantities and types of hazardous waste are reported;
3) the manifest by which monthly tabulations are reported of hazardous waste sent for
recycling, incineration, or for land disposal;
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4) monthly and semiannual manifests for reporting of hazardous waste received by
facilities for recycling and/or incineration;
5) monthly and semiannual manifests for reporting of hazardous waste received by
facilities for final land disposition;
6) the manifest used to report accidental releases of hazardous waste; and
7) manifests reporting the generation of PCBs.
Mexican law on the manifesting of hazardous waste appears to be similar to its U.S.
counterpart as manifests are required by Mexican law for the delivery, transport, and receipt
of hazardous waste, as well as for any "incidents" involving hazardous waste. Manifests
must be submitted to SEDESOL with each hazardous waste shipment, and disposal facilities
must file monthly and biannual reports. In the U.S., manifests are required for the
transportation of hazardous waste; however, pursuant to 40 CFR section 262.41 generators
must report only biennially regarding the hazardous waste transported to TSD facilities. See
generally 40 CFR §262.40 - 43.
Furthermore, Mexican law requires substantially more oversight of the generation of
hazardous waste than U.S. law. Unlike in the U.S., new generators must receive prior
authorization by SEDESOL to operate. (In the U.S., generators need only obtain a RCRA
facility i.d. #; they need not obtain a permit unless they store hazardous waste for more than
90 days, or engage in treatment or disposal.) Mexican law also requires facilities generating
hazardous waste to maintain monthly records and submit semi-annual reports on the volume.
type of and disposition of hazardous waste that is generated. Mexico also requires new and
existing facilities to reduce or minimize the volume of waste generated and then apply
physical, chemical, or biological treatment to the waste.
Overall, the Mexican regulations governing hazardous waste generation and hazardous
waste transport (including importation and exportation of hazardous waste, as discussed
below) appear to be similar to or more stringent than U.S. law.
gl Hazardous Waste Import and Export Requirements
In terms of the importation and exportation of hazardous waste, article 142 of the
General Ecology Law flatly prohibits the importation of hazardous wastes for storage or
disposal. It allows importation only for treatment, recycling or reuse pursuant to Article
153. Moreover, a decree issued by the President of Mexico on January 19, 1987, provides
that each import or export shipment of hazardous materials or residues shall require a permit
from SEDESOL. Article 153 of the General Ecology Law and the Procedures for
Authorizing the Import and Export of Hazardous Materials and Wastes, published April 6,
1989, also require the notification and consent of the country receiving Mexican hazardous
waste exports. In the U.S., by contrast, authorizations to export based on the receiving
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country's consent are issued for prospective shipments for up to a year. Waste imports m
the U.S. do not currently require specific authorization — a receiving facility must only
submit a one-time notification of expected receipt of a waste stream from a foreign source.
In addition, Mexican import requirements are more stringent than U.S. requirements by
requiring specific authorization for imports of hazardous raw materials as well as wastes.
9. Remedial Action for Rf-^CflffiS of Hfl7tJ>rd.
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10. Assessment of Penalties for Non-Comphance
Penalties in the case of non-compliance with Mexican hazardous waste standards can
be significant — a prison term and a fine of up to 20,000 times the Mexican daily minimum
wage. SEDESOL also has power to shut down or fine facilities. Penalties apply to the
unauthorized management of hazardous materials or wastes that causes or may cause serious
damage to public health or ecosystems. Usually, SEDESOL enforces the law by shutting
down a facility temporarily and then negotiating an enforceable agreement with that facility
that sets out how and when the facility will be brought into compliance. Once an agreement
is reached, the facility may reopen.
11. Municipal Waste
Like EPA, SEDESOL has only "normative" responsibility over municipal waste,
which is under local control. SEDESOL has identified three kinds of "correct" landfills and
provides ongoing technical assistance and guidance to municipalities.
12. Conclusions
The structure of the Mexican hazardous waste program is similar to the U.S. program
in many respects. In some respects, Mexican law is more stringent or detailed than U.S.
law; in other respects the opposite is true. On balance, it appears that while Mexico has a
credible administrative scheme to control the management of hazardous waste, U.S. law is
generally more comprehensive. The Mexican program, like the U.S. program, is likely to
evolve significantly over time. The U.S. program under RCRA has changed markedly over
the past few years, adding requirements such as pre-land disposal treatment requirements and
corrective action relatively recently. As the Mexican hazardous waste regulatory program is
not yet fully developed, the Mexican government may be making similar types of changes to
its regulations to make them more comprehensive in scope.
D. PESTICIDES AND TOXIC SUBSTANCES
1. Organizational Structure
Pesticides and toxic substances do not fall neatly under the SEDESOL environmental
umbrella. They are regulated instead by the Commission for Control of Pesticides,
Fertilizers, and Toxic Substances (CICOPLAFEST).w This Commission includes
"Much of the information on Mexican regulation of pesticides included in this report was provided b>
Thomasa Leona Sanchez and Sergio Eduardo Filio Velazquez of CICOPLAFEST. Other sources of information
include information from an EPA-led tnp to Mexico in 1991 to leam about Mexico's pesticides and toxic
substances regulatory regime, and a June 1992 GAO report entitled 'Pesticides: Comparison of U.S and
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representatives from SEDESOL as well as officials of three other federal secretariats: the
Secretariat of Commerce and Industrial Development (SECOFI), the Secretariat of
Agriculture and Hydraulic Resources (SARH), and the Secretariat of Health (SSA). Within
CICOPLAFEST, there are separate subcommissions responsible for Registration, Health and
Ecological Effects Studies, Training, Technical Norms (development of specific regulatory
requirements), and Commerce and Industrial Development.
The responsibility for enforcement of pesticides laws, regulations, and standards also
belongs primarily to CICOPLAFEST. PFPA authority over pesticides is limited to
hazardous waste requirements that relate to pesticides. At this time, however, enforcement
capacity within CICOPLAFEST is quite limited. Several steps designed to increase
compliance with Mexico's pesticides and toxic substances laws are planned or underway and
are discussed in the section concerning enforcement below.
2. Pesticide Registration
The basic approaches of the U.S. and Mexican pesticide regulatory systems are
fundamentally similar. As in the United States, in Mexico a pesticide may not be marketed
until it has been registered. In both countries, the registration process begins when an
applicant provides scientific data concerning the effects of the pesticide on human health and
the environment to support its application for registration.
Mexico's data requirements for the registration of pesticides are almost identical to
those used by EPA. Both the U.S. and Mexico require toxicological data, efficacy data, and
long-term environmental effects studies. However, since almost all pesticides registered for
use in Mexico are imported from outside of Mexico, the Mexican registration authorities do
not review each individual study, as EPA does. They rely instead on the review conducted
in the industrialized country of origin which has approved the pesticide for use. In addition
to the data, a certificate of registration in the country of origin is required. If Mexican
officials determine that the foreign data do not account for Mexican weather conditions or
climate, the officials ask for additional data that take these factors into consideration.
Mexico also relies on information from the United Nations International Registry of
Potentially Toxic Chemicals (IRPTC) regarding the health, safety and environmental
problems that may be associated with imported pesticides.
While there are no specific requirements in Mexico for good laboratory practices
("GLPs") to be followed in generating pesticides data, most of the countries that supply
pesticides to Mexico (e.g., the U.S., Germany, Switzerland, Great Britain, and France) Jrt
members of the Organization for Economic Co-operation and Development (OECD),
subscribing to good laboratory practices. In addition, Mexico is currently discussing with the
OECD the possibility of developing its own GLPs program for pesticides.
Mexican Pesticides Standards and Enforcement.*
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Each of the secretariats represented in CICOPLAFEST can ask for the pesticides
registration applicant to provide the information they need in order to make a decision as to
whether or not to register a particular pesticide. If appropriate information is not provided,
the application can be put on hold. Once sufficient information has been submitted, the four
secretariats then reach a joint decision on whether to grant or deny the registration. The
form for registration has spaces for three signatures, suggesting a requirement of concurrence
by three secretariats before a registration can be granted. CICOPLAFEST officials,
however, indicated that the process is more one of reaching a consensus than it is a voting
process.
Registered pesticides are listed in the Official Pesticide Catalogue. The Catalogue,
which is updated annually, provides information for each registered pesticide on its registered
uses, toxicity category, maximum residue limit, re-entry interval (e.g., the period of time
after application of a pesticide that farm workers must wait before they may safely enter the
treated held), and adverse effects potentially associated with use of the pesticide.
Only a few pesticides that are banned or unregistered in the U.S. are registered for
use in Mexico. DDT is registered in Mexico for use in malaria control programs by public
health officials, a use approved by the World Health Organization. Benzene hexachloride
(BHC) is authorized as a restricted use pesticide for locust control. Neither DDT nor BHC
is registered for food uses in Mexico. EPN and chlordane, which are prohibited for food
uses in the U.S., are being considered for bans in Mexico. Table IS provides additional
information on pesticides prohibited for use in Mexico and in the U.S.
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Table IS - List of Pesticides Prohibited for Use Both in Mexico
and in the United States
Pesticides Prohibited70 for
Use Both in Mexico and in
the United States
Aldrin
Chloranil
Chlordecone
DBCP
Dieldrin
Dinoseb
Endrin
Mirex
Nitrofen
Phenylmercury Acetate
2,4,5-T
Number of Pesticides
Banned71 for Use or the
Use of Which is Severely
Restricted72 in the United
States but are not Banned
for Use in Mexico
41 other pesticides
(including BHC, DDT,
EPN, and chlordane, as
mentioned above)
Sources: EPA, Office of Pesticides, Prevention and Toxic Su
Number of Pesticides
Banned73 for Use in
Mexico, but not in the
United States
10 other pesticides
(including erbon, schradan,
and sodium fluoroacetate)
^stances, "List of Pesticides
Banned or Severely Restricted in the United States;" SEDESOL, National Institute of
Ecology, "List of Pesticides Prohibited for Importation, Manufacturing, Formulation, Sale.
70This list includes pesticides that are either banned for use in the U.S. or the use of which is severeK
restricted in the U.S.
71A pesticide 'banned* for use in the U.S. is defined as a pesticide for which all registered uses are
prohibited by final government action, or for which all requests for registration or equivalent action for all u-e*
have, for health or environmental reasons, not been granted.
72A pesticide with a 'severely restricted' use in the U.S. is a pesticide for which virtually all registered
uses have been prohibited by final government regulatory action, but for which certain specific registered u^e or
uses remain authorized.
^Pesticides that are prohibited for use in Mexico are also banned for purposes of importation,
manufacturing, formulation, or sale. This table does not include pesticides in Mexico such as DDT and BHC
which are registered for only a small number of uses, similar to the category of pesticides with severely
restricted use in the United States.
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and Use in Mexico," as published in the Official Journal of the Federation on January 3,
1991.
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Pesticides that are prohibited for use in Mexico also may not be manufactured in
Mexico. This contrasts with current U.S. law which allows any pesticide to be manufactured
in the U.S., even if it is prohibited for use in the U.S. Furthermore, provided the exporter
of a pesticide manufactured in the U.S., but banned for use in the U.S., meets requirements
under the U.S. Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), 7 U.S.C.
section 136 et seq., for notification of foreign purchasers and foreign governments,
packaging, and labelling, that pesticide may be exported from the U.S. Mexican law
prohibits the export of pesticides that are not allowed to be used domestically.
3. Pesticide Regulations
There are few Mexican technical norms concerning pesticides currently on the books.
There is a hazardous waste norm that classifies as hazardous wastes pesticides which have
reached the expiration dates on their labels. The CICOPLAFEST officials also indicated that
technical norms are under development or being considered that would address pesticide
containers (e.g., what types of containers pesticides can be distributed in) and pesticide
labeling. Regulations concerning management of pesticide and fertilizer wastes are also
under development.
Mexico's current pesticides labelling practices are consistent with those of the U.S.
and with United Nations Food and Agriculture Organization (FAO) Guidelines on Good
Labelling Practice. Current labelling requirements in Mexico include requirements of
ingredient statements, toxicity category, use directions (including the crops on which a
pesticide may be applied), and warnings and cautions.
4. Training
The Training and Communications Subcommission within CICOPLAFEST is involved
in getting companies to employ technical experts to instruct workers on pesticide application
precautions, including wearing protective clothing, how to apply the pesticides and
precautions to take after application (such as not eating lunch in the application area,
showering after application, etc.).
CICOPLAFEST officials indicated that in reality it is very hard to ensure that
pesticide application restrictions are followed in the field. They highlighted problems with
agricultural workers taking home used pesticide containers and using them for drinking or
dish washing water. CICOPLAFEST officials are considering requiring manufacturers to
include special gloves and protective masks with products. The officials noted the difficulty
of wearing protective clothing in the heat of the workday (EPA recognizes that this problem
affects U.S. regulatory efforts as well) and indicated that some companies are looking into
development of light protective clothing.
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There is interest within CICOPLAFEST in seeing that medical doctors receive
additional training concerning adverse effects associated with pesticide exposure. There is
also interest in conducting epidemiologies! studies of pesticides effects. In addition, the
Ecology and Human Health Subcommission of CICOPLAFEST is said to be developing a
registry of pesticide poisonings that would include a record of actual poisoning incidents that
have been reported.
5. Authority of the Mexican States
There is a trend in Mexico toward decentralization of environmental protection efforts
from the central federal agencies to federal outposts in the states and to state governments.
This trend applies to the pesticide area as well as to other environmental issues.
CICOPLAFEST is seeking to form commissions in the Mexican states that would allow for
decentralization while reinforcing CICOPLAFEST efforts. CICOPLAFEST could participate
in training these officials, who would report to CICOPLAFEST.
6. Pesticide Residues
One of the issues of greatest concern in the U.S. regarding Mexican regulation of
pesticides is the setting of standards, known as tolerances, for the maximum amount of
residue of pesticides allowed on treated produce. Because of the importance of the U.S.
export market for Mexican agricultural product products, Mexican officials often adopt U.S
residue tolerances as Mexican tolerances, where such U.S. tolerances exist. However,
Mexico also adopts maximum residue limits (MRLs) for some pesticides set by an
international organization known as Codex Alimentarius, and tolerance levels set by
industrialized countries other than the U.S. EPA, by contrast, sets its own residue limits
without relying on Codex Alimentarius or other countries' standards.
While some Codex Alimentarius standards cannot be directly compared with U S
standards, of those Codex standards that can be compared with U.S. standards, some are
comparable to U.S. standards, some are higher than U.S. standards, and some are louer than
U.S. standards. A recent investigation by the U.S. General Accounting Office (GAO)
indicated that approximately 19% of those Codex standards which could be compared uerc
less stringent than U.S. standards.
One result of Mexico adopting Codex Alimentarius standards and the standards of
industrialized countries other than the U.S. is that Mexico has adopted some pesticide residue
tolerances for which there are no comparable tolerances in the United States. The U.S Food
and Drug Administration monitors agricultural imports to ensure that food entenng the U S
meets U.S. pesticides standards. According to FDA, the rate of pesticides residue violations
from agricultural products exported to the U.S. from Mexico is not significantly different
from the residue violation rates of other countries exporting agricultural products to the U S
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According to a GAO report released in June 1992, there are three categories of
pesticides tolerance differences between the U.S. and Mexico: (1) There are 58 pesticides
that have tolerances in both countries but which have Mexican tolerances for some produce
without comparable U.S. tolerances; (2) there are 17 pesticides that have tolerances in
Mexico, but not in the U.S. (only six of these, however, have tolerances for food
commodities that are exported from Mexico to the U.S.) (see Table 16 below); and (3) there
are 3 pesticides that have tolerances in both countries for the same commodities but the
tolerance is set at different levels. Since the this GAO report was released, the number and
type of pesticides tolerance differences between Mexico and the U.S. is likely to have
changed somewhat. Also, the GAO report did not address the largest category of pesticides
tolerance differences between the U.S. and Mexico - pesticides that have tolerances in the
U.S for which there is no corresponding tolerance in Mexico.74 However, some of the
tolerance differences noted by the GAO report are due to differences in weather, climate,
crops, and pest problems between Mexico and the U.S., and thus are not likely to change.
A joint working group has been formed to ensure that Mexican export commodities
comply with U.S. tolerances. The joint working group includes representatives from
CICOPLAFEST as well as U.S. representatives from EPA, FDA and the Department of
Agriculture. The working group is focusing on Mexico's pesticides tolerances for which
there are no corresponding U.S. tolerances and those tolerances for which U.S. tolerances
are more stringent than the corresponding Mexican tolerance. The group's work plan
includes four basic steps:
1) development of a joint inventory of differences in U.S. and Mexican tolerances;
2) identification by Mexico of pesticide-food commodity combinations that are most
important to Mexican agriculture, and refinement by the U.S. and Mexico of that list
of pesticide-food commodity combinations;
3) joint identification of alternative means of pest control,75 and provision by EPA of
information on the reregistration status of pesticide alternatives; and
4) coordination between Mexico and pesticide manufacturers to ensure the
development of such data as is necessary to support establishment of U.S. tolerances
for Mexican pesticide-food commodity combinations, where it is feasible to do so
within the confines of the present U.S. tolerance-setting system.
74The large number of pesticides with U.S. tolerances but no corresponding Mexican tolerances is due m
part to the fact that U.S. agricultural sector is more diverse than Mexico's agricultural sector and that the b S
has therefore issued hi more pesticides tolerances overall than has Mexico.
75In some instances alternatives could include the identification of alternative pesticides with a U S
tolerance for the agricultural commodity in question, or simply the non-use of a pesticide, as opposed to non-
pesticide methods of pest control.
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Table 16 -- The Seventeen Pesticides With Mexican
but no U.S. Tolerances
PESTICIDE
Azocyclotin
Betacyfluthrin
Bitertanol
Carbindazim
Clethodim
Copper 8-Quniolinolate
Edifenphos
Haloxyfop-methyl
Isazophos
THE COMMODITIES THAT
HAVE
MEXICAN TOLERANCES
Apples, avocados, beans, peaches
Cottonseed, potatoes
Beans, cottonseed
Apples, avocados, bananas, beans,
cucumbers, eggplant, garlic, grapefruit,
grapes, lemons, lettuce, limes, mangos,
melons, oranges, pears, pecans, peppers,
pineapple (edible pulp), squash,
strawberries, tomatoes, watermelon
Soybeans (EPA has a temporary tolerance
for soybeans, which will expire on
1/31/94)
Barley, oats, wheat (This pesticide has
been exempted from having a tolerance in
Mexico for these commodities. A tolerance
exemption is granted by EPA if it
determines that a tolerance for a pesticide
is not necessary to protect the public
health).
Husked rice, polished rice
Cottonseed |
Corn, sorghum :
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Omethoate
Phoxim
Pihmicarb
Propamocarb hydrochloride
Tebuconazole
Thazophos
Triflumuron
Vamidothion
Alfalfa, apples, beans, snap beans, dry
beans, lima beans, cabbage, cabbage head,
cauliflower, celery, chard, corn (grain),
cottonseed, grapefruit, grapes, lemons,
lentils, lettuce, lettuce head, lettuce leaf,
melons, oranges, pears, peas, pecans,
peppers, potatoes, safflower seed, sorghum
(grain), soybeans, spinach, tomatoes,
turnips, wheat
Corn, rice, sorghum
Apples, beans (shelled, common), citrus
fruit, onions, bulb onions, peaches, pecans,
chili peppers, sweet peppers, potatoes,
wheat
Melons, peppers, sweet peppers,
strawberries, tomatoes
Barley
Corn, cottonseed, potatoes
Cottonseed
Apples
Agriculture, House of Representatives, entitled "Pesticides: Comparison of U.S. and
Mexican Pesticides Standards and Enforcement," June 1992. (The information contained m
this chart is likely to have changed somewhat since June 1992, and has not been the subject
of independent verification by EPA).
7. Enforcement
Primary enforcement authority for pesticide residue levels is in CICOPLAFEST, not
SEDESOL's PFPA. In both Mexico and the U.S., an important component of the
enforcement effort is to prevent pesticides misuse by ensuring that pesticides are used
according to the instructions on the pesticides labels. CICOPLAFEST officials indicated that
SARH inspectors supervise applications of restricted use pesticides to make sure it is done
properly. This includes supervision by both federal inspectors and "delegados" (delegados
are federal officials working in the states).
Due to limited resources, laboratory capacity for testing the amount of pesticide
residue on agricultural products produced in Mexico is limited. CICOPLAFEST plans to
develop a system in which one federal laboratory will certify the reliability of a series of
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perhaps a dozen private laboratories throughout the country. Information on the progress
toward development of this laboratory system was not available from CICOPLAFEST
officials.
8. Toxic Substances
Mexico does not have an extensive system for screening all new chemicals along the
lines of the system EPA operates under TSCA. Mexico generally follows international
guidelines in determining whether industrial chemicals will be allowed for use. Mexico
imports most of its industrial chemicals, and relies on information from the country of origin
(often the U.S. or a European nation) and from international organizations, including the
ERPTC, regarding health, safety and environmental problems that may be associated with
imported industrial chemicals.
Mexico publishes official lists concerning those chemicals subject to handling and
reporting requirements. Mexico also has a list of hazardous chemicals that are banned for
use in Mexico. In addition, environmental impact assessments must be submitted before new
industrial chemical production facilities can obtain operating licenses.
SEDESOL has instituted a new and growing audit program. This program includes
both chemical manufacturers and manufacturers of consumer products made from chemicals.
The initial 19 audits in this program were all directed at the chemical industry. This audit
program is discussed below in detail in the section of the delegation report on enforcement.
9. Conclusions
The Mexican pesticide regulatory system is similar in its basic approach to the U.S.
system. Both systems prohibit domestic marketing of products which have not been
registered and rely on review of health and environmental data prior to approval of a new
pesticide.
There are differences in the pesticide residue levels permitted in Mexico and the U S
Mexico adopts some residue limits set by an international body called Codex Alimentarius
and by industrialized countries other than the U.S. Codex Alimentarius standards and the
pesticides standards of industrialized countries other than the U.S. are not always comparable
to U.S. standards - some are higher, some are comparable, some are lower. However, it is
important to reiterate that FDA monitors imports to ensure that all food entering the U.S.
meets U.S. standards.
Mexico is taking steps to improve compliance with and enforcement of pesticide
residue limits. These efforts include working to increase laboratory capacity for testing
treated food for pesticide residues, and participation in a joint working group with the EPA,
FDA, and USD A to find ways for Mexico to ensure that its food exports meet U.S. pesticide
residue standards.
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Rather than screen all new chemicals comprehensively as the U.S. does under TSCA.
Mexico frequently relies on information from the chemical's country of origin or on
international standards regarding industrial chemicals.
E. ENVIRONMENTAL IMPACT ASSESSMENT
The U.S. National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370a,
and its implementing regulations require that an environmental impact statement ("EIS") be
prepared for "major Federal actions significantly affecting the quality of the human
environment." 42 U.S.C. § 4332(2)(C). The two fundamental purposes of this requirement
are to ensure environmentally-informed decision-making by federal agencies and to provide a
springboard for public comment. Although explicitly attaching only to federal actions, in
practice, actions subject to NEPA also encompass a variety of state, local and private
activities due to federal funding or regulatory involvement.
U.S. environmental review law relies on procedural process to fulfill its objectives,
rather than on substantive standards. A very important element of this is the requirement for
public participation. U.S. law requires public notification of the preparation of an EIS,
public participation in initial issue-scoping meetings, and public comment opportunities on
both the draft and final EIS. The U.S. legal system also allows challenges through the courts
and judicial redress for agency failure to comply with NEPA. Once the requisite
environmental impact study has been completed and considered, however, NEPA is
considered to have fulfilled its primary purpose. Thus, decision-makers are not constrained
by NEPA from concluding that environmental values are outweighed by other concerns.
Furthermore, there is no mechanism for ensuring compliance with the selected proposal plans
after construction and during operation.
Like the U.S., Mexico has provisions in its federal environmental law to conduct pro-
construction environmental impact reviews of proposed new sources. Mexico's General
Ecology Law, Section V, Articles 28-35, governs the environmental impact evaluation
process. An environmental impact review is required from any party in Mexico that plans :o
conduct any public or private work or activity which may cause and ecological imbalance or
exceed the limits and conditions of federal regulations or of federal ecological technical
standards. Article 29 specifically describes the projects and activities that require
SEDESOL's prior approval of the environmental impact statement before beginning
construction and operations. These projects and activities are:
1) federal public works;
2) hydraulic works, general communication channels, oil pipelines, gas pipelines, and
coal chutes;
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3) activities of the chemical, petrochemical, steel, paper, sugar, liquor, cement,
automotive, and electrical generation and transmission industries;
4) exploration, extraction, treatment, and refining of mineral and non-mineral
substances with jurisdiction reserved to the federal government;
5) federal tourism development;
6) installations for treatment, storage, or elimination of hazardous waste, or of
radioactive waste; and
7) use of forests and tropical jungles or of species whose regeneration is difficult,
under the circumstances described in Article 56 of the national forestry law.
State and municipal environmental review laws govern additional types of activities.
Many of Mexico's 31 states have promulgated such laws, and although the breadth of the
state requirements vary, so far many of these state laws provide for environmental review of
state public works projects.76
To obtain SEDESOL's authorization of a project or activity, an interested party must
present INE with an environmental review analysis prior to initiating an activity.77 A brief,
preliminary report is sufficient in cases where the activity has no adverse ecological effects
and complies with applicable legal standards. Certain kinds of activities, however, especially
"high risk" activities, must also conduct and submit a risk analysis along with the
environmental impact review. Depending upon the gravity of a project's potential impacts, a
"general", "intermediate" or more detailed "specific" environmental review is required. INE
reviews and approves the environmental impact reviews in consultation with other Mexican
federal agencies, and state and municipal governments. If other permits outside of
SEDESOL's jurisdiction are required of the applicants, SEDESOL issues conditional licenses
subject to the approval of those other permits.
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 also requires consideration of all reasonable alternatives to a
proposed action, including no action. In addition, U.S. law requires, more broadly than
76The Mexican border area states of Baja California and Sonora have requested delegation of the federal
environmental impact program.
^In August, 1992. the GAO released a Report entitled. "Assessment of Mexico's Environmental Controls
for New Companies." The Report concluded that each of six U.S. majority-owned maquiladora companies that
had established plants in Mexico between May, 1990, and July, 1991, which were studied had failed to prepare
environmental impact appraisals or obtain operating permits before beginning operations The sample chosen b>
GAO was very small and the conclusions that can be drawn from such a limited study are few.
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Mexican law, consideration of cumulative impacts resulting from the proposed action when
added to other past, present and reasonably foreseeable future actions. However, in certain
respects, Mexico's environmental review regime goes beyond U.S. requirements. First, it
requires federal, state or local government authorities, after reviewing an EIS, to authorize in
advance both public and private activities that could cause adverse ecological effects or
violate federal environmental regulations and standards. Activities that may have significant
transboundary effects are explicitly included. Second, in the case of activities considered
highly dangerous, Mexico also requires a separate risk study in order to minimize and plan
for accidents.78 Accordingly, Mexico's federal environmental review law may achieve
broader coverage than the counterpart U.S. regime since NEPA applies only to federal or
federally-related actions.
In addition, the Mexican regime, also empowers SEDESOL to deny authorization for
a project or to impose conditions on its design, construction or operation. For example, in
the water area, this process is used to impose facility-specific "special conditions." It
appears that for many of these imposed conditions SEDESOL has found guidance in U.S.
regulations. Mexican environmental impact assessment law further mandates that proposed
activities comply on a continual basis with any established conditions and provides for
monitoring, inspections, and sanctions for non-compliance. These requirements, though
applicable only when projects are so conditioned, appear to go beyond the procedural and
pre-decisional elements of U.S. environmental review law. They also provide SEDESOL
with the legal means for ensuring environmentally sound growth even in cases where
environmental standards have not yet been developed.
INE certifies the consultants who prepare EIS reports. INE's General Directorate of
Ecological Planning is responsible for issuing the certifications. For companies that choose
to prepare their own EIS, the report must include a description of the qualifications and
experience of the personnel involved in preparing the EIS.
SEDESOL appears to rely rather heavily on the EIS process, in conjunction with
regulatory standards, to ensure that the "best available technology" is used in all new
projects. Indeed, Mexico's federal environmental review effort has produced a dramatic
increase in the number of environmental review documents since 1988. Between 1983 and
1988, SEDUE evaluated about 400 environmental impact studies and almost 100 risk studies
Since promulgation of the General Ecology Law in 1988 through May 1991, however,
SEDUE evaluated more than 1500 EIAs and nearly 300 risk studies.
The siting of new sources in Mexico is constrained by a national "ecological zoning
program which defines appropriate activities and uses for particular geographic areas.
General Ecology Law, title III. Mexico has defined more than 380 such areas in order to
protect them, through tighter regulation, from federal "megaprojects" involving, for example.
™See General Ecology Law, Chapter V, article 32.
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tourism, energy, and industry. State and local authorities, as well as the federal government,
may designate such protected areas.
Public participation, though recognized under the General Ecology Law, article 33
and title V, does not play as extensive a role in Mexico's environmental review process as it
does under NEPA. In Mexico, when an environmental review is completed, a notice is
required to be published in SEDESOL's Ecological Gazette and access by any individual to
the file is allowed once project conditions have been established. Copies of the
environmental impact review may be obtained. Upon publication of the notice, any
individual may request SEDESOL to consider additional issues. In contrast to U.S. law,
which allows citizens to seek judicial redress for agency failure to comply with NEPA,
Mexican law does not provide for a private right of action; administrative challenges,
however, may be made. In addition, environmental assessment reviews are admissible as
evidence in Mexican courts as proof of injury in tort suits.
F. COMMUNITY RIGHT-TO-KNOW. CONTINGENCY PLANNING AND
EMERGENCY RESPONSE
Mexico currently has no law that is comparable to the U.S. Emergency Planning and
Community Right-to-Know Act (EPCRA), 42 U.S.C. section 1101 et seq. The absence of
an EPCRA counterpart statute in Mexico points up the lack of legally-required toxic
chemicals inventory reporting and community right-to-know procedures in that country.
Toxic chemicals inventories and community right-to-know programs are important
components of the U.S. environmental protection system.
Although Mexico does not have on the books community right-to-know reporting
requirements, EPA believes that these types of measures will be enacted in Mexico. Mexico
has subscribed to the United Nations Awareness and Preparedness for Emergencies at the
Local Level (APELL) program, which is akin to the U.S. community right-to-know regime
Mexico has also signed on to declarations of the United Nations Conference on Environment
and Development, held in Rio de Janeiro in 1992, calling on governments to keep their
populations apprised of hazardous materials stored in communities. Furthermore, in the
North American Agreement on Environmental Cooperation, Mexico has agreed with the U.S.
and Canada that the Council of Environmental Ministers formed by the Agreement (which
includes Mexico's Secretary of Social Development as a member of the Council) shall
promote and develop recommendations regarding public access to information concerning the
environment that is held by each government, including information on hazardous materials
and activities in its communities and opportunities to participate in decision-making processes
related to such access.
In the area of contingency planning and emergency response, Mexico has a developed
legal regime. Coordinated response to chemical and other environmental emergencies in
Mexico has its legal basis in the Presidential decree of May 6, 1986, which called for the
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establishment of a National System of Civil Protection. The third article of the decree
designates the Secretariat of the Interior as the federal agency responsible for the
development and oversight of such a system. In accordance with the decree, the
Subsecretariat for Civil Protection, Prevention, and Social Adaptation and the General
Directorate for Civil Protection were established within the Secretariat of Interior in
December 1988. These two entities are governed by their own internal regulation which
authorizes them to coordinate the various organizations that may be involved in responding to
an emergency or disaster.
In addition, the National Center for the Prevention of Disasters was created by
Presidential decree on September 20, 1988. Acting under the supervision of the
Subsecretariat for Civil Protection, Prevention, and Social Adaptation, the Center has the
authority to conduct investigations and training sessions, and to disseminate information
about contingency planning and emergency response.
The General Directorate for Civil Protection serves as the coordinator between
Mexican federal contingency planning and emergency response units, and state counsels for
civil protection. The General Directorate also has responsibility for the development of
programs and methodological guidance for civil protection committees formed in the private
sector and for voluntary non-governmental organizations concerned with contingency
planning and emergency response.
On May 11, 1990 the National Council for Civil Protection was established by
Presidential decree, as a consultative organ to coordinate action on environmental
contingencies and other emergencies. The President of the Republic serves as the head of
the counsel, and the counsel has a permanent membership drawn from nine federal
secretariats, as well as from state governments, municipal governments, and the government
of the Federal District of Mexico City. Other non-permanent participants on the Counsel are
drawn from the private sector, academia, and non-governmental organizations.
Most of Mexico's contingency planning and emergency response measures for
environmental and other emergencies are implemented though the National Contingency Plan
Mexican communities are authorized to develop their own contingency plans within the
parameters established by the national contingency plan. This process is most important to
the United States in the area near the U.S. border with Mexico. Many of the Mexican
"sister cities" of U.S. border cities have developed their own contingency plans and have
entered into joint response arrangements with the U.S. cities directly across the border. For
example the city of Mexicali has a long-standing joint response relationship with
Calexico/Imperial County, California. These communities have worked effectively together
The City of Matamoros, directly across the border from Brownsville, Texas recently issued a
local plan to respond to environmental emergencies, and the city of Nog ales, Sonora, the
sister city of Nogales, Arizona, will be inaugurating a contingency plan before the end of
1993. At the national level in both countries, joint contingency planning and emergency
response activities for the U.S.-Mexico border area is authorized by Annex II of the 1983
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U.S.-Mexico Agreement of Cooperation for the Protection and Improvement of the
Environment in the Border Area.
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m. ENFORCEMFNT
The General Ecology Law vests authority to enforce environmental laws, regulations
and standards primarily in SEDESOL. Prior to the 1992 reorganization of Mexico's
environmental secretariat, EPA found that the senior management and staff of SEDUE had
demonstrated a willingness to mount a credible and effective environmental enforcement
program, despite inadequate funding and other resources. This was reflected by the closure
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. Significant strides had been made in enforcing Mexico's still evolving
environmental regime: an increasing percentage of SEDUE's budget was being designated
for enforcement and enhancement of inspection capabilities; and the number of inspections
conducted in Mexico had been increasing since 1982.
It was in the context of this increasing emphasis on enforcement that Mexico
reorganized its environmental authorities in June-July, 1992, to further enhance its
enforcement of environmental laws. Mexico created within SEDESOL a semi-autonomous
enforcement infrastructure, the Procuraduria Federal de Proteccion al Ambiente (PFPA),
roughly translated into English as the Office of the Federal Attorney for Environmental
Protection.
A. Inspection and Enforcement Procedures
Environmental enforcement in Mexico usually involves one or a combination of four
techniques: (1) plant closings, which may be permanent or temporary, and total or partial,
(2) the negotiation of compliance agreements, particularly in response to a temporary plant
closing; (3) the imposition of fines; and (4) the posting of a surety bond to secure compliance
with an agreed or ordered schedule of compliance;. These enforcement tools are
implemented administratively, with SEDESOL acting both as prosecutor and adjudicator
Judicial proceedings, which would require referral of the matter to the Federal Attorney
General's office in the Secretariat of Justice, are reserved for criminal prosecutions.
Although criminal actions have been rare in the environmental area, they have occurred in
response to a few environmental incidents.
When SEDESOL investigates a facility and takes enforcement action, all the
formalities of Mexican law must be strictly observed by the investigators. SEDESOL
inspectors must document inspections by obtaining an inspection order which identifies the
place to be visited, the reasons for the inspection, and the scope of the inspection. The
inspection order must be presented to company personnel, along with the inspector's
credentials. The company must provide access to all operations and documents necessary to
carry out the inspection, as outlined in the order. Refusal of access may result in the
inspector requesting police assistance.
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Upon concluding the inspection, the inspector must prepare an inspection report on
the premises, to be signed by two company witnesses designated by the inspector. The
company is given an opportunity to include any comments or objections in the report, and
copies of the report are provided to the company.
If the inspector finds an ecological imbalance or irregularity that may impact human
health or the environment, the facility is notified of the initiation of administrative
proceedings, and given 10 days to prepare a response to the inspectors' findings. This
triggers an administrative adjudication process which is generally conducted by the creation
of a written record of each party's offering of proof, as opposed to the conduct of oral
hearings. Through the offerings of proof, SEDESOL describes in detail the irregularities it
found; the facility is given an opportunity to present rebuttal evidence; a determination is
made on which counts to proceed; and needed corrective actions are identified. Within 30
days of the offering of proof, SEDESOL will render its resolution of the matter, including
corrective actions to be implemented, time periods for implementation, and sanctions or
penalties. SEDESOL notifies the facility of its decision, which must then execute the
decision.
To effectuate a decision to apply a fine, SEDESOL must transmit its decision to the
Secretariat of the Treasury. If a facility shutdown is ordered, SEDESOL's decision will
specify what actions must be taken before the facility may reopen, as well as compliance or
corrective requirements which continue after reopening. Within five days of the term
specified in the decision, the company must report on the status of its compliance with the
decision. If a follow up inspection uncovers non-compliance, SEDESOL may double the fine
and shut the facility down, or modify a pending shut-down order to impose more stringent
conditions for reopening.
Companies may petition for reconsideration of SEDESOL's decision within IS days
The petition for appeal must identify injury sustained by the company in the underlying
proceeding, and controverting evidence. SEDESOL's final decision, which may sustain,
overturn or modify the original decision, must be made within IS days of submission of the
appeal petition. Judicial review of administrative decisions for Constitutional violations b>
the federal government may be obtained through the use of amparo procedures. Use of these
procedures has been rare but is increasing. In addition to reliance on precedent, Mexico'^
courts are likely to grant considerable discretion to the substantive decisions of the
administrative agency in such appeals, narrowly confining the scope of review to procedural
irregularities that violate constitutional protection of individual liberties.
B. Sanctions and Settlement Negotiations
A primary enforcement tool utilized by SEDESOL is plant closure, which may be
temporary or permanent, and may involve closing the entire facility or only a portion of us
operations. A closure order issues when SEDESOL inspectors discover a direct and
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significant threat to the environment or human health, or a high level of nuisance, such as
noise pollution.
Temporary closures are ordered when the immediate problem creating the health or
environmental threat is remediable. Such temporary closings are intended to lead to
consultations between SEDESOL and corporate entities formally charged with violating
environmental law. The closings occur in advance of negotiations, and the plant is allowed
to reopen only after the company resolves the immediate problem, and an agreement with
timetables for achieving full compliance is reached. In negotiating a compliance agreement,
SEDESOL may use its discretion to allow industries -- especially the smaller industries - a
reasonable time to comply with its requirements. These legally enforceable agreements are
monitored by SEDESOL.
SEDESOL has relied heavily on requirements that facilities post performance bonds to
secure their compliance with the terms of a settlement agreement or order. Once the
performance bond was created to ensure further compliance in accordance with a settlement
agreement or order, SEDESOL would allow a closed plant to reopen operations. As of
August, 1992, however, SEDESOL has tightened its policy to insist that problems actually be
fixed prior to lifting a shutdown order. This provides SEDESOL with more effective
leverage than performance bonds to secure immediate correction of the most egregious
violations.
Permanent closures are employed more rarely than temporary closures, but the threat
of permanent closure serves as a major deterrent to noncompliance. A permanent closure
might be ordered where a facility has huge emissions problems, perhaps exacerbated by the
fact that it is located in a highly-populated area where exposure risks are increased.
Permanent closures are likely to be ordered when the problems are impossible or too
expensive to fix; however, this sanction may also be imposed punitively, such as where there
is a history of extreme noncompliance even though it may be possible to mitigate the
immediate environmental risks created by the plants' operations.
SEDESOL prefers, however, to order total, but temporary closure, and negotiate
solutions wherever possible that will allow the plant to reopen. At times, plants subject to
temporary closure orders may terminate operations permanently if the operational changes
sought by SEDESOL are too expensive to implement. When a plant closes permanently and
relocates, it will be subject to all SEDESOL requirements for new operations, including
permit requirements, environmental impact assessments, and compliance with regulations and
ecological norms.
Both SEDESOL and EPA rely on negotiated settlements to achieve compliance and
remediation of environmentally unsound conditions. Approximately 95% of EPA's
administrative and civil judicial actions are concluded as negotiated settlements. The primary
distinction between the Mexican system and the U.S. system is that in Mexico, a strong
sanction -- facility shutdown -- may be imposed prior to initiation of negotiations, and may
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continue in effect until negotiations are complete and the facility initiates agreed-to concern e
measures to SEDESOL's satisfaction.
In the United States, in both administrative and judicial enforcement, negotiations
usually take place during the pendency of the enforcement proceeding (i.e., after filing of a
complaint) which seeks to impose sanctions, including civil penalties and injunctive relief.
At times, the government negotiates a settlement with the facility prior to the filing of a
complaint, and a consent agreement and formal complaint are filed simultaneously. The
court or administrative tribunal must approve and enter the terms of any settlement. Once
entered, the settlement is judicially enforceable.
In contrast to the Mexican system, in the U.S., only when the government satisfies a
high burden of demonstrating that a company's actions present an imminent and substantial
endangerment to human health and the environment, or that emergency injunctive relief is
otherwise warranted, will a court or administrative tribunal enjoin continuing activities of the
subject of an enforcement action prior to full adjudication or settlement of the matter. In the
absence of clear emergency conditions, it may take years before a case is adjudicated or
settled, resulting in an enforceable order to correct violations and remedy any environmental
problems caused thereby. In the Mexican system, the authority to shut down a facility
pending the negotiation of a compliance agreement provides SEDESOL with substantial
bargaining power in promoting rapid and favorable settlements.
SEDESOL's reliance on the use of fines has varied. In the early 1980's, SEDUE
relied primarily on fines in its enforcement approach. By mid-decade, however, SEDUE
changed its strategy, becoming reluctant to use fines in the belief that available capital should
be directed instead toward investment in pollution control equipment. Prior to the 1992
reorganization, SEDUE began rethinking its strategy once again and appeared poised to use
fines more frequently as an enforcement tool against violating facilities. Now, SEDESOL is
once again fully embracing the use of fines to deter noncompliance. SEDESOL also intends
for these charges to be used as a means of passing along inspection costs to the violator.
Existing law permits the imposition of fines equivalent to 20,000 times the daily
minimum wage in the Federal District of Mexico (up to approximately US $85,000).
According to Mexican officials, fines can be imposed on a per-day, per-violation basis for as
long as the violation persists. By comparison, most U.S. environmental statutes allow for
civil penalties up to $25,000 per day per violation. Thus, the range of monetary, fines that
can be imposed by SEDESOL is comparable to, and can even be greater than, those imposed
by the United States.
In practice, just as in U.S. administrative and civil judicial enforcement cases, the
penalties sought or agreed to in settlement for initial violations may be much lower than the
statutory maximum, based upon considerations of economic fairness and the seriousness of
the violation. However, whereas a U.S. consent decree often contains stipulated penalties
for failure to comply with its provisions that are generally higher than the initial penalty
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agreed to in settlement, SEDESOL may double the fine for persistent violations, creating a
powerful deterrent against failing to implement the terms of an agreed or ordered compliance
schedule.
Another tool that Mexico has used is administrative detention, which is distinguished
from a criminal arrest. Administrative detention can result in the deprivation of a corporate
officer's freedom for up to 36 hours. More commonly, it is applied for several hours on a
daily basis until agreement is reached on a compliance plan and schedule.
Criminal prosecutions are contemplated under specific regulations. SEDESOL may
refer a criminal case to the Federal Attorney General to initiate prosecution at any time it
believes evidence of a crime exists, including during the conduct of administrative
enforcement proceedings. Such proceedings, although, rare, have been increasing,
particularly in cases involving hazardous waste disposal, where disposed wastes may provide
clear evidence of patently criminal activity. In the recent Mexico case, for example, the
operator of a solvent recycling facility was arrested for mismanagement and illegal disposal
of wastes, placed in custody, and released on a $1 million bond which secured the
cooperation of the operator in cleaning up the waste.
Mexican officials acknowledge that some review of criminal offenses might be needed
to better pursue prosecutions of environmental crimes. Some Mexican courts have been
reluctant to impose criminal sanctions in environmental or analogous types of cases, overly
broad descriptions of criminal offenses in legislation or regulations. Thus, improving the
usefulness of criminal prosecutions as an environmental enforcement tool may require the
Mexican Congress to redesign some of the offenses.
C. SEDESOL Oversight of Other Federal and State Rtfnmyment
As noted above, in the section of this report on water pollution, SEDESOL shares
jurisdiction over water quality protection with the National Water Commission (CNA)
While CNA has primary jurisdiction over pollution of national waters, SEDESOL may
promulgate technical norms pertaining to the discharge of hazardous or toxic wastes into
water. CNA has primary authority to enforce the standards promulgated by SEDESOL. and
can itself create special conditions on toxic and hazardous waste discharges as long as ihc\
are no less stringent than SEDESOL's requirements. SEDESOL, however, plays an
important function in overseeing and monitoring CNA's enforcement of water quality
regulations and norms. SEDESOL inspectors are trained to evaluate water discharges for
compliance, and may receive complaints from the public about industrial discharges to water
SEDESOL refers violations detected by its inspectors or alleged by citizen complaints to
CNA for follow up. If CNA does not respond to these claims, SEDESOL's PFPA can
counsel CNA about surveillance of water discharges, and make recommendations.
If counseling does not result in satisfactory action by CNA, SEDESOL may bring a
claim to the General Comptroller's office alleging that CNA has failed to discharge its dut\
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The claim would be litigated in accordance with federal law regulating the responsibility of
public servants, with sanctions including fines, removal of officials, and possible criminal
action.
SEDESOL officials explained that its oversight role of monitoring CNA's
enforcement of SEDESOL water norms applies to other federal agencies as well. The
Procuraduria often receives claims that have to do with the work of other federal agencies,
and has similar authority to ensure that these agencies comply with SEDESOL requirements.
SEDESOL reports that its recommendations are usually adopted, and that it has not been
necessary to resort to formal legal proceedings before the Comptroller General for
SEDESOL to ensure that other agencies carry out its mandate.
In addition, SEDESOL officials report that, on an operational level, they are working
cooperatively with CNA to ensure joint compliance monitoring of industry, including
inspections conducted jointly by the two agencies.
SEDESOL, at least theoretically, enjoys a similar oversight role with respect to state
implementation of environmental laws. Many states have begun to promulgate their own
environmental laws. SEDESOL has the authority to verify a state's enforcement of its
environmental laws, and may make recommendations to ensure that state laws implementing
federal standards are adequately enforced. In practice however, although many states have
passed environmental laws, some of these states have discovered that they are not prepared to
fully implement these laws. The result is that, at the moment, the federal government is
more involved in direct enforcement than in oversight of state enforcement activities.
D. SEDESQL's Inspection Program
The PFPA has initiated a vigorous inspection program under the Subprocuraduna for
Normative Verification and the Subprocuraduria for Social Participation and Complaints
The inspection program is organized into four, essentially separate subprograms:
1. Targeted Inspections -- Industries which pollute the most or consume large
quantities of fuels are targeted for inspection visits.
2. Public Complaints -- The establishment of a Subprocuraduria for Social
Participation and Complaints ensures that PFPA is equipped to routinely investigate
citizen complaints about polluting industries.
3. Aerial Surveillance -- Helicopter flights are conducted in Mexico City to detect air
emission sources.
4. Verification -- This consists of follow up on previously visited facilities.
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As reported by SEDESOL officials in October, 1993, SEDESOL has 90 inspectors in
Mexico City metropolitan area,79 130 inspectors in the U.S./Mexico border area, and 240
inspectors throughout the rest of Mexico, for a total of 460 inspectors nation-wide.80
Shortly after its creation, SEDESOL developed a work plan for conducting
inspections in the Federal District of Mexico, calling for 200 inspections per month. This
work plan was initiated in August, 1992. With its 88 inspectors dedicated to this region,
SEDESOL was able to exceed its goal of 200 inspections per month, and in November,
1992, modified the work plan to set a goal of 500 inspections per month. This goal was
immediately exceeded: in December, 1992, SEDESOL conducted 1000 inspections in
metropolitan Mexico City, in January, 1993, 1008 such inspections occurred. From August
4, 1992, through August 31, 1993, SEDESOL exceeded its target of inspectors for
metropolitan Mexico City by more than 3,000, conducting a total of 8,304 inspections, which
resulted in partial closure of 522 facilities and total temporary closure of 29 facilities.
Once it began to successfully implement the inspection work plan in the greater
Mexico City metropolitan area, SEDESOL extended the work plan to the rest of the country,
calling for 750 inspections per month in areas outside of Mexico City (this, together with the
target of 500 inspections per month for Mexico City, yields a total goal of 1250 monthly
inspections nation-wide). From August, 1992 through September, 1993, SEDESOL's PFPA
had carried out approximately 16,386 inspections, resulting in 1,161 temporary partial
closures, 216 temporary total closures, and over 100 permanent plant shut-downs. 2,447 of
these inspections were carried out on the Mexican side of the U.S./Mexico border area,
resulting in 202 temporary partial closures and 55 temporary total closures.
SEDESOL conducts two types of inspections: (1) a multimedia, comprehensive
inspection, examining the facility's total compliance with all relevant regulations and
technical norms; (2) a "short inspection", which is geared more toward determining whether
paperwork requirements have been met, e.g., whether facilities have obtained necessary
permits or authorizations, and whether they are complying with record keeping and reporting
requirements. Examples of such documents include facility operating licenses, annual air
emissions evaluations, and monthly records tracking hazardous wastes generated and
transported. SEDESOL's policy is to assess a fine of NP 7,000 for each major document
that is not in proper order, the amount of which depends on the type or size of the facihu
involved.
One explanation for SEDESOL's early success in meeting aggressive inspection goals
is that many of the inspections were of the latter "short" variety. However, SEDESOL's
''Forty per cent of Mexico's industrial operations are located in the Mexico City metropolitan area
"Recent reports, however, indicate that SEDESOL's inspection forces, particularly in the border area,
have been beset by attrition, attributed to SEDESOL's inability to compete with private sector salaries, as firms
gear up to hire environmental managers.
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predecessor, SEDUE, was beset with allegations that it lacked basic information about the
number of facilities operating subject to its regulatory jurisdiction. SEDESOL has responded
to this concern by initiating an entirely new program, geared first toward achieving
compliance with facility authorization and other information requirements which form the
fundamental bases of pollution control. In so doing, SEDESOL has set in process a much-
needed effort to establish baseline data on industrial operations nationwide, while promoting
a culture of compliance among industrial facilities in Mexico.
SEDESOL inspectors, however, also conduct comprehensive inspections, which are
multimedia in nature. Although CNA has primary jurisdiction to control water pollution,
SEDESOL inspectors are trained and competent in detecting water violations, for referral to
CNA for further action,81 as well as violations of air, and waste management requirements.
By way of contrast, multi-media inspections in the U.S. are rare, and U.S. inspectors tend to
be trained to uncover noncompliance with particular media-specific statutes. EPA is,
however, placing increasing emphasis on multi-media enforcement. Due to the multi-media
nature of Mexico's General Ecology Law, SEDESOL's inspection program is designed to
achieve comprehensive compliance evaluations, avoiding the division of enforcement
resources into more narrow areas of expertise.
Currently, inspections by SEDESOL are visual, and do not involve actual sampling of
emissions or discharges. Rather, inspectors will examine inventories of chemicals used and
released, or inspect to determine whether emission control technologies have been adopted.
At times, actions may be taken based on visual observations of actual pollutants, such as for
opacity violations or discharges with obviously noxious odors.
SEDESOL hopes to use funds from its World Bank loan to obtain equipment for
sampling and analyzing pollutants. Such technology is much-needed to enable SEDESOL
inspectors to move fully from the first phase of establishing compliance with baseline
authorization and record keeping requirements, to a full compliance inspection program
capable of detecting violations of numerical protection standards.
SEDESOL, however, hopes to rely as much as possible on shifting the burden to the
facility to analyze and document releases to the environment, or to install specific pollution
control equipment. SEDESOL can thus base enforcement responses on whether facilities
have installed the required equipment, or upon the completeness and integrity of monitonng
or materials usage data.82 For example, although SEDESOL has not yet published air
"SEDESOL inspectors are similarly competent to detect pesticide violations, which may be within the
jurisdiction of the CICOPLAFEST for enforcement action. SEDESOL officials observed, however, that many
irregularities in Che handling of pesticides may be sanctioned under the regulation controlling hazardous waste
^Similarly, reliance on actual sampling or monitonng of emissions by inspectors is uncommon in several
of EPA's programs. For example, enforcement of the U.S. Clean Water Act relies heavily on discharge
monitonng reports submitted monthly by facilities. Actual discharge sampling is uncommon except to venf>
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emission standards for volatile organic compounds (VOCs), it is requiring companies to
measure VOC emissions. Negotiated compliance agreements may similarly include
provisions requiring companies to install other emission control devices, such as calibrated
self-monitoring devices. Finally, voluntary agreement may result in the obligation to install
technology or use practices for which compliance may be monitored through visual
inspection. For example, a number of companies in the Mexico City area recently
committed to changing to natural gas fuel to reduce emissions to the environment. Although
this was a voluntary action, the companies have signed an agreement committing to the
change with local government authorities, creating an enforceable voluntary compliance
agreement.
E. Targeting
SEDESOL's inspectors are instructed by PFPA headquarters in Mexico City on the
types of plants which present the highest priority for inspections. Top targeting priorities are
companies which deal with petroleum, petrochemicals, and other hazardous substances, as
well as recycling facilities. In addition, public complaints are utilized as a primary targeting
device for inspection follow-up. A facility may also be targeted for comprehensive
multimedia inspection based on the results of short inspections which yield suspect
information. Finally, in the Federal District of Mexico, helicopter overflights provide a tool
for targeting facilities, particularly for suspected violations of air requirements.
F. Public Complaints
As noted above, SEDESOL's Subprocuraduria for Social Participation and Complaints
has institutionalized SEDESOL's commitment to enhance public participation in the
enforcement process and respond to public complaints. Although there is no formal citizen
suit mechanism for allegations of generalized harm to the environment (with the exception of
the possible use of amparo proceedings when constitutional violations are alleged),
SEDESOL has made it clear that it is receptive to receive citizen complaints and tips about
environmental violations, and that it will respond to these complaints with plant inspection*
violations discovered by reviewing such reports. Under the Clean Air Act, actual stack testing is rare exn.pi
when a facility first installs equipment. Inspections are geared to verifying compliance with requirements for
operating and maintaining such equipment. Under the 1990 amendments to the Clean Air Act. increasing
emphasis is being placed on self-monitoring requirements. Under RCRA, inspections rely on visual
verifications of facility management practices and review of records, including groundwater data from sample
collected and analyzed by the facility, with actual inspector-conducted sampling limited to investigations inu>
actual releases of hazardous waste constituents to the environment.
Differences between the U.S. and Mexican programs, however may appear in the degree of detail anJ
frequency of self-monitoring, record-keeping, and reporting required, as well as the degree to which control
technologies are specified in the regulations or imposed on an ad hoc basis through the facility authorization
process or in response to irregularities detected by inspectors.
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For example, from August, 1992 to February, 1993, SEDESOL received complaints
about 187 facilities in the Federal District of Mexico City, and responded to all of them. Of
the 187 plants inspected, SEDESOL ordered total temporary shutdowns of 11 facilities,
partial temporary shutdowns of 80 facilities, and made technical recommendations on
improvements in plant operations or management to fix minor problems discovered at the
remaining 96 plants. SEDESOL officials report that it has received a lot of public support
for its program of responding to complaints. SEDESOL hopes that public participation will
continue to grow as the public sees the results of the program: that complaints do in fact
result in facility shutdowns or other enforcement response in appropriate cases.
G. Aerial Surveillance
SEDESOL has instituted an aerial helicopter surveillance program in the metropolitan
Mexico City area. This program takes place only in the winter, when air quality is at its
lowest in Mexico City. In January to February of 1992, the helicopter surveillance program
identified 148 air-polluting facilities for inspection visits. Of the 148 plants visited,
SEDESOL ordered two total shutdowns, and 54 partial shutdowns. In the remaining 92
plants, SEDESOL inspectors recommended operational or management improvements to
ensure compliance.
H. Mobile Source Enforcement
SEDESOL, in coordination with authorities in the state of Mexico and the Mexico
City Federal District government, has instituted a program to identify vehicles producing
excessive air pollution. As of March, 1993, 17,000 vehicles had been stopped pursuant to
this program. Operators of the vehicles are fined 24 times the daily minimum wage in
Mexico City, and given 24 hours to repair the vehicle. If the vehicle is stopped again within
30 days, the authorities may seize the vehicle.
I. SEDESOL's Environmental Audit Program
In addition to its aggressive program of targeted inspections and responses to public
complaints, SEDESOL has initiated an innovative program of voluntary environmental
audits, promoting compliance by providing facilities with an opportunity to discover
irregularities in their operations, and eliminate them prior to the appearance of an inspector
and the threat of shutdown or fines. SEDESOL developed its program based on a
cooperative project with the Canadian government focussing on environmental auditing of the
petrochemical industry, and built its capacity to implement the program by participating in
training exercises provided by a number of private institutes in North America.
The program is targeted toward high-risk industries, and designed to identify nsks
created by operations likely to lead to environmental accidents or contamination, and
potential compliance irregularities. Accordingly, the audit serves a dual function of
encouraging individual facility compliance, as well as providing a baseline of background
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information for SEDESOL on management practices in high-risk industries on which to base
future targeting of priorities for SEDESOL's inspection program.
The environmental audits are conducted by approved private consultants. The audit
entails a comprehensive plant survey, conducted in three phases:
1. Pre-Audit: The auditor reviews basic data, including facility hazardous materials
handling records, as well as worker safety and health records, and develops a work
plan for conducting the audit.
2. Audit: The audit itself thoroughly evaluates internal management of the plant,
including company environmental policy, hazardous waste handling practices,
emergency response mechanisms, and other factors pertaining to controlling pollution
or contamination.
3. Post-Audit: The audit results are evaluated, and based on the results, an action
plan is developed for correcting each of the problems identified. SEDESOL will
negotiate the action plan with the facility. The negotiated action plan is legally
binding, and may be secured by a performance bond.
The action plan becomes, in essence, an enforceable contract between the facility and
SEDESOL. If the facility fails to comply fully with the action plan, SEDESOL may declare
the performance bond forfeited, and also may institute formal inspection and administrative
proceedings to penalize or shut-down the facility for persistent violations discovered by the
audit and not corrected. In addition, if, during the conduct of the audit, the auditor discovers
serious violations of the General Ecology Law or its regulations and norms, SEDESOL may
request immediate corrective action or that of the problematic activity cease - and may, upon
following procedural requirements for inspections and administrative enforcement, impose
the full range of its enforcement sanctions if its request is not followed.
A company's decision to participate in the audit program, however, is purely
voluntary, and is intended to encourage companies to foresee and eliminate potential
violations or risks prior to the appearance of the inspector at the facility door. Because it is
conducted by agreement of the parties, SEDESOL is not required to obtain an inspection
order to conduct an audit, and the audit itself will not lead directly to the imposition of a
penalty or shut-down order. Administrative enforcement procedures would have to be
initiated and followed in the event uncorrected violations discovered by the audit require the
imposition of enforcement sanctions.
SEDESOL initiated the audit program at the end of 1992, targeting for participation
petroleum extraction industries, petroleum product and petrochemicals facilities, and textile
manufacturers. The initial effort was focussed in the state of Veracruz, with 19 audits
conducted in the petroleum and petrochemical industry concentrated there. These audits
were completed, and action plans have been finalized with at least four companies. Action
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plans for the remaining companies are being negotiated. After the audits were conducted in
Veracruz, 58 more audits were conducted throughout the country, including maquiladora
facilities in border states, as well as companies in Guadalajara, Monterrey, Michoacan, and
the Valley of Mexico.
SEDESOL financed the initial 77 audits, starting in the end of 1992, but hopes that
the program will attract voluntary participation by companies which will fund their own
audits by approved independent consultants, gradually phasing out SEDESOL financing of
the audit program. After approaching the initial companies to encourage participation in the
audit program, SEDESOL has embarked on the next phase of the program, in which it will
assess the degree to which companies will participate without being directly solicited.
Because the audit program focuses on companies in high-risk industries or zones, which are
targeted for regular inspection and frequently the subject of popular complaints, SEDESOL
hopes that the threat of inspection and its possible sanctions will act as an incentive for
companies to participate in the audit program. SEDESOL hopes to promote the audit
program actively among facilities which do not request to participate unsolicited; and retains
the option and threat of actively inspecting facilities which resist participation in the audit
program. The scope of the environmental audit program is significant. For example, with
respect to PEMEX alone, audits of over 80 facilities were completed in 1992, with the
remainder of PEMEX facilities to be audited by the end of 1994.
In addition, SEDESOL expects public corporations to embrace environmental audits:
PEMEX, for example, has agreed to audit all of its facilities. PEMEX began the first phase
of this comprehensive program in October, 1992, by initiating audits at 80 facilities. The
second phase of the program involving audits at PEMEX's remaining plants was scheduled to
begin mid-1993.
Audits also differ from inspections in that they are more flexible. In addition to
looking for current violations, audits attempt to identify areas which may lead to potential
violations or risks to human health and the environment. SEDESOL therefore views the
audit program as comparable to a preventive check-up. The audit program also has some
potential to promote the adoption of facility practices or operational changes which go
beyond mere compliance in reducing pollution emissions (i.e.. "pollution prevention" as that
term is used by EPA).
Although this pollution prevention potential exists, however, it is currently limited b\
two factors. First, because of its voluntary nature, facilities are only likely to adopt process
or practice changes which go beyond mere compliance if the auditor and/or SEDESOL is
able to convince them that such changes are in their economic self-interest. Thus, facilities
are most likely to agree to such process changes only when they would also increase facility
efficiency. Secondly, because the audit program is still in its inception, and SEDESOL must
focus on obtaining voluntary participation in the program.
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These limitations notwithstanding, SEDESOL's audit program is clearly innovative,
going beyond traditional exercise of enforcement functions as utilized in the U.S. by actively
promoting compliance and sound environmental management practices through preventive,
non-adversarial facility evaluations." At the same time, the audit program will serve as a
primary source of information on which to base future inspection targeting. As an ancillary
benefit, once fully accepted by industry, the audit program has great potential to lead to the
identification, and potential negotiation of binding agreements for, changes to facility
processes and practices which will reduce pollution beyond the levels required to achieve
mere compliance and minimize the risks of extraordinary accidents.
J. Conclusion
The creation of the PFPA marked a significant turning point in the development of
SEDESOL's environmental enforcement program. Since it creation, the PFPA has
implemented a program of inspections, leading to increasingly tough enforcement follow up
when violations are discovered. Recognizing that Mexico's General Ecology Law was only
enacted in 1988, and that additional technical sophistication in the inspection program will
help bridge the gap between establishment of a strong enforcement presence and widespread
development of compliance-oriented environmental management practices in industry,
Mexico has made strides in implementing its enforcement program.
There is strong indication that SEDESOL's enforcement program, combined with
increasing state and local enforcement activities, have received the attention of industry. For
example, a recent survey of U.S. industry operating in Mexico by the American Chamber of
Commerce of Mexico indicates that industry has a strong perception that enforcement
measures are being more stringently applied by all levels of government since five years ago;
that numbers of inspections carried out by all levels of government have been increasing
significantly in number since 1990; that since 1990, inspectors have demonstrated increasing
levels of thoroughness, technical proficiency, understanding of the environmental laws, and
honesty.
There is also some evidence of recent increases in compliance with the requirement to
export hazardous waste from the maquiladora industry. For example, SEDUE had
previously estimated that 30% of the hazardous wastes generated by the maquiladora industry
operating in the Mexican border area near the U.S. were being accounted for. In statistics
published for inspections through February 1993, SEDESOL estimated that 65% of the
maquiladora facilities that generate hazardous waste complied with record-keeping
requirements, and 40% of hazardous waste-generating maquiladoras returned their wastes for
disposal. U.S. data on maquiladora shipments supports SEDESOL's estimate of increased
13Although in the U.S., EPA encourages voluntary pollution prevention and encourages facilities to conduct
environmental compliance audits, SEDESOL's audit program involves SEDESOL much more interactively with
participating facilities in reviewing audit results, malong recommendations, and developing an action plan to
implement the recommendations.
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compliance. During the last few years there has been a steady increase in the number of
hazardous waste manifests received by EPA for maquiladora waste imports and the volume
of waste shipments they represent. There has also been a significant increase in the number
of notifications submitted prospectively by U.S. facilities for receipt of hazardous waste from
Mexico's maquiladora industry. This information appears to corroborate the notion that
Mexico's enforcement program is increasingly effective in promoting industry compliance.
Mexico's continuation along this path of improved enforcement of environmental
laws, regulations and standards will depend upon SEDESOL's ability to maintain adequate
resources to ensure that it can retain and provide continuous training for its inspectors, and
that it can obtain the technical sophistication to verify compliance with specific discharge and
emission standards or permit conditions. The recent announcement of a $1.8 billion World
Bank loan to Mexico, reinforced by a $2.2 billion Mexican commitment, will help to ensure
that these resource needs can be met in the near term.
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rv. CONCLUSIONS
In April 1991, EPA led a legal mission to Mexico which resulted in a preliminary
report, released in November of that year, concluding that Mexican environmental laws,
regulations and standards then in existence were generally comparable to their counterparts in
the U.S., although the countries' environmental regimes were not identical and each regime
contained provisions that the other lacked. The presence of these differences was not
surprising. Comparisons of different countries' environmental protection regimes inevitably
reveal differences in approaches and standards, because the relevant scientific questions and
regulatory issues are so complex. This is especially the case when a common law system
such as the United States' is compared with a civil law system such as Mexico's. EPA noted
that the Mexican environmental regulatory regime was incomplete. EPA was careful to note
that to the extent differences in scope were due to the early stage of development of
Mexico's program, it was premature to draw many conclusions about overall stringency or
comparability. EPA's conclusions were echoed by a 1991 GAO report which noted that
while the two regulatory regimes were similar, many Mexican regulations still had to be
developed.
Against this backdrop, EPA returned to Mexico in March 1993. EPA and SEDESOL
agreed in principle at that time to continue what has become a periodic joint examination by
legal experts of U.S. and Mexican environmental laws, regulations and standards.
Mexico's environmental regime is still incomplete. Since 1992, Mexico has been in
the process, not yet conducted, of reexamining and reissuing all of its existing 83
environmental standards in response to a new law that requires that many Mexican technical
standards be subjected to cost-benefit analysis. By the end of 1994, Mexico also expects 10
have completed the release, well underway, of 120 new environmental standards which will
have been subjected to the same cost-benefit analysis. Even when all 120 new standards are
issued, the environmental regulatory picture in Mexico will not be finished, because, by their
nature, environmental protection regimes continue to evolve.
There is no Mexican analogue as yet to the U.S. Safe Drinking Water Act, EPCRA
or Superfund. Such gaps are not surprising given that the Mexican General Ecology Law, is
only five years old and Mexico has had less than half a decade to construct an entire
regulatory regime. However, with certain important exceptions, the Mexican laws and many
of the regulations and standards promulgated thereunder in the principal media areas of air,
water, waste, and pesticides are broadly comparable to their counterparts in the United
States. The Mexican and U.S. environmental protection regimes as a whole are designed to
achieve, when implemented and enforced, comparable levels of environmental protection
Notwithstanding the general comparability of U.S. and Mexican environmental
standards, EPA is aware of a number of individual standards in particular economic sectors
that diverge substantially from their U.S. counterparts. The most notable example is air
emissions standards for coal-fired electrical power generating plants.
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EPA intends to continue to examine Mexican environmental standards as these are
issued or reissued to determine their comparability to U.S. standards. When standards are
found to be substantially divergent, such issues could be taken up by the Agency either
through existing bilateral mechanisms, such as the 1983 U.S.-Mexico "La Paz" Agreement
or through new mechanisms provided for in the NAFTA and the North American Agreement
on Environmental Cooperation, once these enter into force.
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