Gabriel Calvillo
Carswell & Calvillo
View from the Top

Improving the Waste Management Legal Framework

Wed, 02/19/2014 - 09:27

Q: How can the current regulatory framework be optimized to diminish risks associated with dangerous substance management and increase the use of waste-to-energy?

A: The first step is to implement the principles established by the General Law for Waste Management and Prevention (LGPGIR). Even if waste confinement is a last resort, we still need it because there are some types of wastes that can only be confined. We have only one confinement facility currently operating, and a few authorized but non- operating facilities, mostly due to political reasons. We need more confinements even if reuse is the best solution to manage waste.

The neutralization risk has a lot to do with the adequate management of waste. One of the pending topics for Mexico is to guarantee adequate waste management for citizens. The government lacks information regarding what happens to more than 50% of hazardous waste materials. There are no guarantees because the system that was implemented under an American model – a tracking scheme – is barely reliable. The Mexican government does not have the capacity to link information, and there is no intelligence system that enables us to corroborate the information provided by those who are emitting and handling waste. PROFEPA should have a system to verify the information, similar to the one used by SAT to verify invoices. This mechanism is not costly for companies but the Mexican government lacks the capacity to ensure safety when managing these types of wastes because they do not even know where they are.

Q: What are the main issues that the current scheme presents and what can be done to improve it?

A: The current investigation scheme is completely reactive. PROFEPA begins investigating if there has been a waste deviation whenever it finds a dump. What we actually need is a one paragraph modification to the LGPGIR. Our law firm has been working closely to achieve this change. The only thing we are asking for is for those handling waste to report their obligations online within a given timeframe. The online system has already been applied for environmental obligations and has proven quite fruitful. PROFEPA should also have a system to verify the information, similar to the one used by the tax authority to verify invoices. This new mechanism is not expensive for companies. Today, the Mexican government lacks the capacity to ensure safety when managing certain types of waste as it does not even know where they are. No one has guaranteed or audited the information, but even a very superficial revision would turn up plenty of incoherencies. This is the reason why very small modifications are fundamental for the further development of this country.

Q: Which parties are responsible for the damage produced during the handling of waste?

A: It depends on the stage at which the damage happened, and also on the type of responsibility. If damage is caused when handling waste, liability is solidary. Both the transport company that did not handle the waste properly and the person who hired that company are responsible. This is one of the main changes within the Environmental Responsibility Law, destined to promote control mechanisms. If the state has a limited control capacity then it is necessary for the waste generator to become an additional control organism. There are some companies that have been hiring others to transport their waste for the past six years, but they have not once thought about verifying if their waste is being properly disposed of. We have seen plenty of fraud cases, where people do not realize their omissions until there is a large and palpable consequence. What happens is that usually the government turns towards whoever generated the waste in question. This is fine, but the government does not investigate what happened with the transport company that did not handle the waste appropriately and that will continue to offer such services. As such, one of the biggest debts the Mexican government owes to its people is to develop more effective supervision systems. One of the reasons we have been working on an organic law for PROFEPA is to create an internal control organ that will handle such issues. Infrastructure is fundamental to effectively control waste management. But in order to develop sufficient infrastructure we need to know the real numbers, the real information so we can fully measure the extent of the problem we are facing.