MEXICO Law and Practice Contributed by: Federico Ruanova Guinea and Isabella Guzman, Baker McKenzie
an explosion in an oil platform of PEMEX (the state- owned oil company) caused an NGO to file a collective claim against the entity, seeking that PEMEX under- take remediation or at least compensation and that fisheries be compensated for harm caused to their livelihood. Several NGOs filed public actions against the Dos Bocas Refinery that the Mexican government has constructed in the State of Veracruz, alleging that this project, worth billions of US dollars, has caused widespread environmental damage, and is adversely affecting flora and fauna and will degrade air quality. NGOs have also filed actions against the Maya Train project, which spans the Yucatán Peninsula. Judicial resolutions on these two cases are pending. In 2015, a company operating a copper mine in the State of Sonora, Mexico, was fined by PROFEPA in an amount equivalent to USD1.1 million for discharging cyanide into a river. The company was also required to create a trust worth approximately USD105 million to help in environmental restoration activities and to assist the population affected by the environmental damage that was caused. 11. Contractual Agreements 11.1 Transferring or Apportioning Liability Indemnities and suchlike may be used to transfer or apportion liability. However, these may have very lit- tle binding effect or influence over regulators or even civil judges. For example, regulators or judges may require an owner or occupier of a contaminated site to remediate it, irrespective of a contractual arrange- ment with a third party. It will be up to the parties entering into the agreement – and not regulators or judges – to ensure that the contractual obligations are properly met. For example, in the case of an environmental permit granted to a mining company, that company may hire a third party to conduct mining operations and may enter into a service agreement containing a num- ber of environmental indemnity provisions, making the contractor liable for remediation in case of an oil spill. However, in the eyes of regulators such as
SEMARNAT, if there is a hazardous waste spill the permit-holder will be the liable party and may face civil or even criminal liability in the case of serious environmental harm, notwithstanding any contractual arrangement that may be in place. When hiring a company to transport and dispose of hazardous waste, it is very important to have a con- tract in place making the transporter liable for any damage caused when the waste is being transported to a final destination facility (which could be a land- fill, a recycling yard area or a transfer station). This is because the Waste Law provides that, in the absence of a contract that defines the role of the generator, the transporter and the disposal company, the waste generator would be liable if the waste is not sent to a licensed disposal facility, and also because the Fed- eral Criminal Code considers it a federal crime (pun- ishable by a prison term of up to four years) to send hazardous waste to a site that lacks permits to receive or store it. 12. Contaminated Land 12.1 Key Laws Governing Contaminated Land Regulators generally pursue owners or occupiers of a contaminated site when requiring remediation activi- ties to be carried out because the law makes them liable for remediation regardless of fault. In some cases, they will also impose penalties against parties that are known to have caused soil or groundwater contamination. The Waste Law defines a contaminated site as “a place, space, soil, water body, installation or any combination thereof that has been contaminated with hazardous materials or waste that, because of their quantities and characteristics, may represent a risk to human health, living organisms and the use of per- sonal goods or properties”. The authority in particular keeps a record of contaminated lands. A legal requirement for remediation may be ordered when a site characterisation study reveals that there are pollutants in the soil in quantities or concentrations exceeding the maximum allowable limits established
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