Keeping Track of Pollutants in Mexico

Keeping Track of Pollutants in Mexico

Baker & McKenzie

On June 3, 2004, the Regulations to the General Law of Ecological Balance and Environmental Protection (the “General Law”) in the Area of Emission and Pollutant Registry (the “Regulations”) were published in the Official Federal Gazette.You may recall that the General Law established an Emissions and Pollutants Registry (the “Registry”), to be comprised of data and documents contained in environmental authorizations, reports, licenses, permits and concessions filed before or issued by the Ministry of Environment and Natural Resources (“SEMARNAT”), The Government of th

e Federal District, States or Municipalities. The Registry will contain an inventory of a all pollutants generated in Mexico, either by source or type, to improve their tracking and to identify the companies that generate air emissions, wastewater discharges and hazardous waste. Since the Registry will have declarative effects1, all companies furnishing information must take special care of ensuring that it is correct and true, Also, it will be advisable to verify whether there are any pollutants that are no longer being generated and what type of information is being provided to the Registry. Consequently, it will be necessary to verify that pollutants comply with the limits established by Mexican Official Standards (Normas Oficiales Mexicanas or “NOM’s”), because it will now be easier for any person to have access to information regarding what a company emits, discharges or generates.

Reporting obligations

Article 9 of the Regulations state that the establishment subject to reporting requirements are the following:

Those listed under Article 111 Bis of the General Law; in other words, federal stationary air emission sources2;

Hazardous waste generators in accordance with applicable law;

Those discharging wastewater into federal receptive bodies (not discharging into municipal or urban sewer systems).

Establishments subject to reporting requirements must submit information regarding their emissions and transfer or pollutants into the air, water, soil and subsoil and hazardous materials and waste, through an Annual Operating Report (the “Report”), which must be submitted before SEMARNAT (either in Mexico City or before State Delegations) within the period of January 1st to April 30th of each year. The Report may be submitted in any of the following forms:

In printed form, enclosing a magnetic disk containing the Report’s electronic file;
In electronic file, through a magnetic disk or
Through the electronic portal to be established.

How to measure pollutants

The Regulations state that emissions and pollutants regulated by NOM’s must be measured using methods, equipment, sampling procedures specified under such NOM’s and Mexican Standards referenced by them, pursuant to the Federal Law of Measurement Units and Norms.

Emissions and pollutants that are not regulated by NOM’s or whose measurements are exempt, may be estimated through commonly used methodologies such as the application of emission factors, historical data estimates, materials balance, engineering calculations or mathematical models.

Calculations and measurements related with such methodologies must be kept for 5 years upon submittal of the Report.

Access to the Registry

Public environmental information contained in the Registry’s database, is the following:

Name of the individual or entity subject to the report;
Air, water, soil and subsoil pollutants, as well as hazardous materials and waste;
Geographical location of the establishment subject to the report.

In other words, the Registry will contain information on the establishment, its location and the substances that it emits, discharges and generates, making it possible for any person having access to such information. Anyone desiring to get information contained in the Registry’s database must submit a written request before SEMARNAT, in accordance with the procedure established under the Federal Transparency and Access to Public Government Information Law.

SEMARNAT will deny the information requested if it falls under any of the assumptions contained under Article 159 Bis 4 of the General Law, or if such information is reserved or deemed confidential by the Federal Transparency and Access to Public Government Information Law and its Regulations; in any case, SEMARNAT must state the reasons that motivated its denial.

Consequences of non-compliance

The Regulations require establishments subject to reporting requirements to submit their Report within the period running from January 1st to April 30th of each year. The Federal Bureau of Environmental Protection (PROFEPA) will carry out inspection and verification activities to verify the information contained in the Report as well as its timely submittal.

Information submitted to SEMARNAT must be correct at all times, because providing false or incorrect data to simulate compliance is a federal crime, punishable with a prison term of 1 to 4 years 3, aside from administrative penalties that may apply.

1 Declarative effects impla that the information submitted is trust wordy and may be offered as proof in an administrative or judicial procedure.

2 Oil and petrochemical industries, chemical, paint and ink industries, metallurgic and automotive industries, cellulose and paper, asbestos and glass industries, power generation and hazardous waste treatment

3 According to Article 420 Quater of the Federal Criminal Code.

By Baker & McKenzie

For further information, please contact us at info.mexico@bakernet.com All Rights Reserved © Baker & McKenzie Abogados, S.C. Mexico 2003