MEXICO Law and Practice Contributed by: Federico Ruanova Guinea and Isabella Guzman, Baker McKenzie
by applicable standards or in the absence of a stand- ard, if the conclusions contained in a human health and risk study make remediation necessary to protect the environment or human health. As mentioned in 6.1 Liability for Environmental Dam- age or Breaches of Environmental Law , there are two standards that establish maximum allowable limits for pollutants in soils. One is NOM-138, which establishes maximum limits for hydrocarbons in soils; the other is NOM-147, which establishes maximum allowable limits for heavy metals. If there are other pollutants in soils that may pose a risk to human health or the envi- ronment, a human health and risk assessment may have to be carried out. 12.2 Clearing Contaminated Land Parties liable for remediating contaminated land include: • any party that causes soil contamination whether wilfully or by negligence – this party may also incur administrative, civil or even criminal liability if envi- ronmental damage is caused; • owners or occupiers – if they did not cause con- tamination then their obligation is solely limited to remediating the site; and • holders of a concession over federal land. In order to be able to get a regulator or a court to force an original polluter, a former landowner or any other person to remediate, the liable person will have to demonstrate that any of them caused contamination or environmental damage; in the case of the former owner, if it failed to disclose the environmental condi- tions of the site, prior to its transfer of ownership, it may be liable for remediation in accordance with the Determining liability for contamination is not a sim- ple endeavour for environmental authorities. This is why the Waste Law makes an owner or occupier of a contaminated site liable for remediation regardless of fault or intent. This rule forces an owner or occu- pier to file a legal action against the party or parties that actually caused contamination. More often than not, it is difficult to demonstrate a party’s culpability, regulations of the Waste Law. 12.3 Determining Liability
let alone multiple parties, even when there is objec- tive environmental liability that stems from the use of hazardous substances. If multiple parties handle or use such substances and contamination is caused, regulators may attempt to make each party liable, but this may prove to be difficult, particularly if there is no clarity on what action or omission caused contamina- tion. Again, this is why making an owner or occupier liable for remediation is an easier path for environmen- tal authorities. 12.4 Proceedings Against Polluters From an administrative law standpoint, proceed- ing against polluters is not difficult for regulators. An owner or occupier of contaminated private land – or a concession-holder over public land – are required by law to remediate if there is soil or groundwater con- tamination, and environmental authorities do not need to demonstrate intent or fault. From a civil liability perspective, the requirements to bring a legal action for environmental damage are more demanding. There have to be sufficient elements to infer that a party has caused environmental dam- age. If a party uses hazardous substances and dam- age to a third party is caused, determining civil liability may not be legally difficult because of the objective liability principle discussed in 6.1 Liability for Environ- mental Damage or Breaches of Environmental Law . To determine criminal liability, there has to be an element of gross negligence or intent. The Federal Criminal Code provides that any person that orders or allows the discharge or deposit of hazardous sub- stances into soils or water bodies may face up to 12 years in prison and stiff fines. There are also “environ- mental management crimes”, such as: • allowing or authorising hazardous waste to be sent to a site that lacks permits or licences to store or dispose of them; • failing to keep environmental authorisations or documents; and • providing false statements to inspectors or mis- leading regulators when preparing environmental permit applications.
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