Pulse Point Newsletter for April 27, 2000
Published by Alliance Consulting International
Partners in Environmental and Occupational Health and Safety
By Enrique Medina, MS, CIH

Who is responsible for accidental releases of hazardous waste in Mexico? One of the most controversial sections of Mexico’s General Law of Ecological Balance and Environmental Protection (General Law) of 1988 involved this issue and a related question: Is there a requirement to report accidental releases?

While the reforms and additions to the General Law published in the Diario Oficial (Mexico’s Federal Register) in December 1996 cleared up much of this controversy, the requirements of the General Law and its regulations continue to be poorly understood and routinely violated.

This opens a facility up to potential fines, closure or even arrest of the legal representative. A quick review may help to keep your facility in compliance and your manager out of jail.

The three main questions to address are:
1. Who is responsible for management of hazardous waste?
2. When is a spill reportable?
3. What should we do about it?

Who is responsible for management of hazardous waste?

The controversy over responsibility for the waste arose when the generator contracted with a hazardous waste transportation, treatment, storage and/or disposal facility (TSDF). The original language of the law did not address the issue of the generator’s responsibility, and the Regulation to the General Law of Ecological Balance and Environmental Protection in Matters of Hazardous Waste (H/W Regulation), which implements the law, was not much better.

While it did not define the generator’s responsibilities, Article 13 of the H/W Regulation did state that when generators contract with a TSDF, the latter then becomes responsible within its management operations - including final disposal, to “comply with the law”. This led industry groups to try to place the burden for any releases of hazardous waste on the TSDF after it was loaded on their truck, including the long term liability from landfilling, thus attempting to break the link between “cradle” and “grave”. This was clearly not the government’s intention.

The 1996 Reforms to the General Law, (Reformed Law), put this issue to rest. Article 151 was revised to state unequivocally that “the responsibility for management and final disposal of hazardous waste corresponds the generator”. It also states that in the event a TSDF is contracted to provide management and disposal services, they are responsible for their operations, “independently of the responsibility that, in its case, the generator has”. This effectively confirms the “cradle to grave” responsibility of the generator.

When is a spill reportable?

This brings us to the issue of what is a spill. We’ve established that a TSDF is responsible for management operations while the waste is in their care. But what if a spill occurs in the generator’s plant? This was another source of confusion. The General Law stated in Article 136 that “wastes, which accumulated or were deposited or infiltrated into ground need to meet the necessary conditions to avoid ground contamination... and health risks”. There was no mention of what to do about it.

The H/W Regulation does state in Article 42 that if a hazardous waste is released, spilled, infiltrated or poured during any operation involved in its management, the generator, and if applicable, the TSDF, shall immediately notify the agency. However, the law referred only to hazardous waste and was silent on hazardous materials spills. Therefore, a facility involved in a diesel or organic solvent spill from a tank or drum could conceivably determine that this clause did not apply, unless the material was already labeled a waste. Even if they wanted to report it, there was no established administrative procedure or official guidance to follow.

The Reformed Law clears up the material vs. waste dilemma in Article 134, section V by establishing criteria to control “soils contaminated by the presence of hazardous materials or wastes…”

The reporting issue was solved in 1999 when the National Institute of Ecology, the permitting arm of the Secretariat of Environmental Protection, Natural Resources and Fisheries (SEMARNAP), issued its “Manifest in the Event of Accidental Spills of Hazardous Waste”. This little known manifest outlines the administrative procedures, requirements, forms, legal basis, and non-compliance penalties for reporting spills.

The manifest requests general information on the release, such as time and place of release, site characteristics, cause of release, as well as general characteristics of the waste, emergency actions taken, clean-up and site restoration activities, and possible damage to the environment.

Notification must occur immediately and be followed in writing within three days. There are significant penalties for non-compliance, including fines equivalent to 20,000 daily minimum wages (about $100,000 at current minimum wage rates), temporary or permanent closure of the facility, suspension or revocation of operating permits, licenses or authorizations, and administrative arrest for up to 36 hours.

A more practical concern is the absence of a reportable quantity trigger for reporting, which means that the spill has to be large enough to cause “harmful alteration in the soil’s biological processes, alterations in the soil that damage its utilization or risks to human health” (Reformed Law, Article 136). As a general rule of thumb, if it’s large enough to need cleaning up, it’s probably large enough to be reported.

Or put another way, if it could become an issue in a due diligence site assessment as part of a property transfer operation, it probably meets the criteria. This position stems from the fact that many industrial property buyers are now insisting that the regulatory agency sign off on any of the seller’s clean-up actions derived from the due diligence process to make sure they are not acquiring a potential liability. This means the agency would need to be involved and the presence of the spill would become known.

Another option for U.S. firms operating in Mexico is to follow EPA spill reporting rules based on Reportable Quantities of CERCLA hazardous substances and be able to support the rationale behind that decision. For those with good relations with the federal regulators, a visit to ask for general guidance is also advisable.

What should be done about hazardous materials or waste spills?

Again, the Reformed Law addresses this issue. Article 152 Bis states that when “generation, management or final disposal of hazardous materials or waste produce ground contamination, those responsible for such operations shall conduct the necessary actions to recover and reestablish the conditions of [the ground], so that it can be destined to any of the activities established in the urban development program or land use plan that applies to the subject land or area”. Basically, the contaminated area must be remediated to meet the appropriate conditions for its intended use.

The agency responsible for establishing clean-up criteria and approving remedial actions is PROFEPA, the Federal Attorney General for Environmental Protection, which is the enforcement arm of SEMARNAP. It has adopted a risk-based approach to site remediation that involves establishing site-specific clean up levels, which are validated by a third party. PROFEPA has instituted a qualification process for companies that provide remediation services and has a directory of qualified firms available through their web site at www.profepa.gob.mx.

If you have questions about how the hazardous waste regulations may impact your current or future operations, please contact us at (619) 297-1469 or send us an email emedina@pulse-point.com.

Alliance Consulting International
Partners in Environmental and Occupational Health and Safety
3361 28th St.
San Diego, California 92104
(fax (619)297-1023

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