Hazardous wastes become more and more diversified as mining, manufacturing, utilization and treatment processes are changed or new processes are introduced. This circumstance has made necessary to amend regulations in place to make them consistent with the provisions of the General Law on Prevention and Comprehensive Management of Waste (“LGPGIR”).

Mexican Official Standard NOM-052-SEMARNAT-2005, That Sets All Characteristics and the Procedure for Identification and Classification of Hazardous Wastes, and Lists all Wastes that are Hazardous (“NOM-052”) was published in the Federal Official Gazette on June 23, 2006, and is to become effective next September 21, 2006.

The Second and Third Transient Articles of NOM-052 provide, respectively, that (i) NOM-052 will, upon going into effect, repeal Mexican Official Standard NOM-052-SEMARNAT-19931, and (ii) all Non-Hazardous Waste Certificates that may be in effect on September 21, 2006 will continue to be valid until expiration of their respective terms.

Considering that NOM-052-SEMARNAT-1993 sets all limits that make a waste hazardous due to its environmental toxicity, the general idea is that a waste is not hazardous if it does not exceed any parameter of the CRETIB (Corrosive, Reactive, Explosive, Toxic, Inflammable and Biological-Infectious) characteristics that are set forth in said Standard; however, some scenarios had not been contemplated in this Standard, such as the hydrocarbon-contaminated soils.

NOM-052 introduces certain definitions that increase the number of environmental scenarios that will be taken into consideration for classification of the hazardous wastes. For instance, toxicity is subdivided into environmental, acute and chronic toxicity.

Under NOM-052-SEMARNAT-1993, a waste was classified by finding whether it was listed, and if it was not listed, then a CRETIB analysis had to be made to satisfy the requirement of clause 5.2 of the

Standard and prove that the waste was not hazardous, if applicable. This procedure has been modified under NOM-052.

The new procedure to determine whether a waste is hazardous or not, is the following:

First, it must be determined whether the waste is in any of the following five lists in NOM-052:
LIST 1.- Classification of hazardous waste per specific source.
LIST 2.- Classification of hazardous wastes per non-specific source.
LIST 3.- Classification of hazardous wastes from the disposal of out of specification or expired chemicals (Acutely Toxic Wastes).
LIST 4.- Classification of hazardous wastes from the disposal of out of specification or expired chemicals (Chronically Toxic Wastes).
LIST 5.- Classification per type of wastes subject to Specific Handling Conditions.

In case a waste is not included in any of the above lists, then the waste is regulated as follows:

a) Sludge and biosolids will be regulated by NOM-004-SEMARNAT-2002.
b) Polychlorinated biphenyls (PCB’s) are subject to the provisions of NOM-133-SEMARNAT-2000.
c) The maximum permissible limits for hydrocarbons in soil will be those set forth in NOM-138-SEMARNAT/SS-2003.
d) Mine tailings are governed by the specifications of NOM-141-SEMARNAT-2003.

In case a waste is not listed or does not meet any of the particular characteristics established,
then it must be determined whether the waste has any CRETIB characteristic. This determination is made
according to any of the following options:

1.- A CRIT characterization or analysis of the waste, along with a determination of its explosive
and biological-infectious characteristics.
2.- A statement based on scientific knowledge or empirical evidence about the materials and
processes used in the generation of the waste, in the following cases:

- If the identifying person knows whether the waste has any of the hazard characteristics
set forth in the Standard; or
- If the identifying person knows whether the waste contains a toxic constituent that
makes the waste hazardous; or
- If the identifying person states under affirmation that the waste is not hazardous.

For a better understanding of the above, attached hereto is the flowchart included in NOM-052 for the identification of wastes.

Notwithstanding the 5 lists mentioned above and all other provisions for classification in NOM-052, it must be kept in mind that Article 31 of LGPGIR lists 15 wastes that have been previously classified as hazardous, and which are the following:

“Article 31.- The following hazardous wastes and used, expired, recalled or discarded products that are discarded as wastes, and are classified as such in the corresponding Official Mexican Standard will be subject to a Waste Management Plan:

I. Used lubricating oils;
II. Used organic solvents;
III. Catalytic converts of automotive vehicles;
IV. Automotive vehicle batteries containing lead;
V. Electrical mercury or nickel – cadmium based batteries;
VI. Florescent and mercury paper lamps;
VII. Accessories that contain mercury, cadmium or lead;
VIII. Pharmaceuticals;
IX. Pesticides and their packaging that contain residue of the same;
X. Persistent Organic Compounds such us biphenyl polychlorides;
XI. Oil based sludge, originating from the extraction of fossil fuels, and sludge originatin from treatment plants of wastewaters when they are considered hazardous;
XII. Blood and blood components, only in liquid form, as well as their derivatives;
XIII. The stocks and cultivations of pathogenic agents generated in the diagnostic and research procedures, and in the production and control of biological agents;
XIV. The pathological wastes consisting of tissues, and parts removed during autopsies, surgery, or any other type of surgical interventions that are not contained in formaldehyde, and
XV. The sharps wastes that have been in contact with human or animals or their biological samples during diagnosis and treatment, including scalpels, lancets, syringes with attached needle, hypodermic needles and acupuncture and tattoo needles.…………………………………”

It should be mentioned that most of the wastes generated by the Maquila Industry are included in list 5, and that the provisions of the Regulations to LGPGIR, which are about to be published, must also be observed.

All parties responsible for determining whether a waste is hazardous are required to observe the provisions of NOM-052. According to the joint responsibility principle that governs the handling of hazardous wastes, all parties that participate in the handling thereof could be considered as responsible parties: from the generator to the carrier.

This is very significant since, as it may be seen above, if a waste is not included in any of the lists in NOM-052, an identifying person can make a determination as to whether the waste is hazardous or not and, in this latter event, state under affirmation that the waste is not hazardous. If a waste is affirmed not to be hazardous and it is later proven that it is actually hazardous pursuant to the provisions of NOM-052, such false statement could constitute a crime.2

1 Mexican Official Standard NOM-052-SEMARNAT-1993, That Establishes all Characteristics of Hazardous Wastes, Lists all Wastes that Are Hazardous and Sets all Limits that Make a Waste Hazardous due to its Environmental Toxicity, went into effect on October 23, 1993 and its effective term will expire next Wednesday, September 20, 2006.

2 Federal Criminal Code, Article 247: A prison term ranging from two to six years, and a fine ranging from the equivalent of 100 to 300 times the daily minimum wage shall be imposed on I.- Anyone who fails to tell the truth upon being questioned by any governmental authority other than a court of law in exercise of or in connection with its duties.