By Lexcorp Abogados

During the last years, wastes have turned into a situation that sometimes increases environmental management, however, in some cases they are subject to actions that do not necessarily represent good practices against pollution prevention. Considering the importance of the environmental law and its influence in the modern world, the environmental legislation in our country has been expanded; consequently, the general law that regulates most of the activities related to the environment has become obsolete if we take into consideration the different dispositions created and developed by the Executive and Legislative branch. Unfortunately, it is true that what we have achieved it is not enough, but at least, both the General Law for the Prevention and Integral Management of Wastes (Ley General para la Prevención y Gestión Integral de Residuos – LGPGIR) (herein “the Waste Law”) and its Regulations, and the so-called NOM-052-SEMARNAT-2005 represent a good advance in the process of regulating waste management in Mexico.  

It is true that there are enough gaps in our environmental legislation, however, at least, what we have achieved is better than nothing; undoubtedly, there are certain contradictions and confusions, nevertheless, it would be worst to continue with the anarchy in which we were, where the Environmental Authority did not know what to do, believing to have powers but they were only wrong interpretations, leaving people with no legal certainty. That is the case of the Official Mexican Standard NOM-138-SEMARNAT/SS-2003 related to soil remediation.  

It is known that our legislators are using their powers for negotiating environmental aspects instead of developing dispositions oriented towards preventive policy related to waste management. As a result, the Executive branch and the citizens are defenseless to know what they have to do in all cases. Moreover, the Organic Law of the Federal Public Administration (Ley Orgánica de la Administración Pública Federal) has not been updated as well as the Interior Regulations of the Secretariat of Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales – SEMARNAT).  

For the case we are referring to, we are of the opinion that for the community in general, waste management is not considering a relevant issue. Nevertheless, those who are waste generators must know and identify what those wastes are and what the Waste Law and its regulations establish in this matter.  

Currently, we are in the process of knowing how to implement the concepts and rules established by the Waste Law. At the same time, our Congress has been filed -in an irresponsible way- several environmental bills that instead of bringing certainty, they have generated a feeling of frustration and incredulity.  

On the other hand, taking into consideration the different meetings celebrated between the SEMARNAT and the different sectors of the society, the Regulations for the Waste Law were finally published in the Federal Official Gazette, last November 30, 2006.  

This document pretends to describe the main aspects of the recently published Regulations. The following are the aspects that we consider more relevant:  

                        I. Waste Management Plans and their categories.
II. Content of Waste Management Plans.
III. Particular Management Conditions.                        
IV. Hazardous Waste Identification.
V. Obligations of the Generators.
VI. Authorizations.  
VII. Common Dispositions for Hazardous Waste Generators.
VIII. Storage and Gathering Centers for Hazardous Waste.   
IX. Hazardous Waste Collection and Transportation.   
X. Reuse, Recycle and Co-processing.
XI. Hazardous Waste Treatment.
XII. Final Disposition of Hazardous Waste.
XIII. Import and Export of Hazardous Waste.  
XIV. Remediation of Polluted Sites.
XV. Control and Safety Measures, Sanctions.

  With the purpose of making the lecture of this document easier, we divided it into three parts. This first part will describe the aspects regarding waste management plans and their categories, content of waste management plans, particular management conditions, and hazardous waste identification.  

I. Waste Management Plans¹ and their categories

Article 16 of the Regulations establishes the following categories to be observed in management plans:

                  A. According to the individuals that participate in them:

• Private: Instrumented by those private individuals that according to the Waste Law,   are obligated to elaborate, formulate, and implement management plans.
• Mixed: Instrumented with the intervention of both authorities and private individuals    that participate in private management plans.

B. Considering the possibility of people’s association, obligated to formulate and       execute management plans:

• Individuals: Those plans in which only one generator establishes a unique integral management plan for one or more than one waste generated.
• Collective: Those plans that determine the integral management given to one or more specific waste. This type of plans may be elaborated or applied by several obligated generators.             

                  C. According to their scope of application:

• National: Those plans applied nationwide.
• Regional: Those plans applied in the territory of two or more States or the Federal District, or the territory of two or more Municipalities of the same State or different States.
• Local: Those plans applied in one State, Municipality or the Federal District .

                  D. According to the current waste.

  II. Content of Management Plans

Management plans will contain the following²:

            • Wastes subject to management plans, as well as the amount estimated for managing each of them.
• The way in which waste minimization, valorization/assessment or use will be done.
• The mechanisms for allowing other obligated subjects to be incorporated to the management plans.
• The mechanisms for the evaluation and improvement of management plans.

III. Particular Management Conditions

Article 27 of the Regulations on Waste Law, establishes that the following hazardous wastes may be subject to particular management conditions:

           • Those wastes established in the Waste Law.
• Those wastes listed by specific and non-specific source in the correspondent Official Mexican Standard (NOM-052-SEMARNAT-2005)³, as long as from the result of the modification processes or raw material, they change their characteristics.
• Those wastes that according to the Official Mexican Standard mentioned above, are classified by type, and are subject to those conditions.

  The hazardous wastes generators may propose to the SEMARNAT, the particular management conditions by installation, process or type of waste. Such proposal will describe the process, the current waste, its characterization, its management proposal and the arguments that will justify the particular condition.

  The SEMARNAT will have thirty (30) working days for solving about these particular management conditions. The approval or determination of particular management conditions will not modify or cancel the classification of a waste as hazardous.

IV. Hazardous Waste Identification

Hazardous waste may be identified according to the following: ⁴

a- Those wastes considered as hazardous, according to the Waste Law.

b- Those wastes classified in Official Mexican Standards, refereed in article 16 of the Waste Law ⁵ by means of:             

     • Waste lists according to their hazardous characteristics: corrosive, reactive, explosive, environmentally toxic, flammable or biological-infectious; grouped by specific and non-specific source; for being used, expired, out of specification or removed from commerce products and that are subject to be discarded; or by type of waste subject to particular management conditions. The SEMARNAT will consider the chronic, acute and environmental toxicity.

• Criteria for characterization and threshold that imply an environmental risk because of their corrosive, reactive, explosive, environmentally toxic, flammable or biological-infectious characteristics.  

c- Those wastes derived from the mixture of hazardous wastes with other type of wastes; those that come from treatment, storage and final disposition of hazardous wastes and those equipment and constructions that were in contact with hazardous wastes and that are discarded.             

¹ According to the Waste Law, these plans are intended to establish mechanisms to prevent or minimize waste generation and maximize the assessment/valorization of wastes, under environmental, technological, economic and social criteria.
² Article 20 of the Regulations for the Waste Law.
³ This Official Mexican Standard was published in the Federal Official Gazette on June 23rd, 2006 .
⁴ Article 35 of the Regulations for the Waste Law.
⁵ Article 16 of the Waste Law: “The classification of a waste as hazardous will be established in the Official Mexican Standards that specify the way of determining their characteristics, including the lists of the same and setting the limits of concentration of the substances contained in them, based on scientific knowledge and evidence on their hazard and risk”.