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Analysis

Understanding Industrial Inspections,

Wed, 10/21/2015 - 14:12

To enforce compliance with the country’s environmental laws and norms, PROFEPA turns to industrial inspections, a process which it carries out for all of Mexico’s industries under federal jurisdiction. PROFEPA bases its inspections on a varied set of laws, by which companies have to abide, in an integrated and complementary manner to ensure that inspections are done adequately and transparently. The inspection follows the procedures set by the Federal Law for Administrative Procedure, which obliges PROFEPA to have an inspection warrant establishing the purpose of the inspection and the name of the accredited inspector. PROFEPA’s inspectors have knowledge on the technical and legal aspects needed to assess compliance with the law and can only inspect what is stipulated in the warrant. Once the inspector arrives on site, he reviews all relevant documents to ensure that the operation has the necessary permits given out by SEMARNAT, such as the license to operate, the permit to build or expand installations, or the environmental impact statement. If the company does not have any of these permits, the visit leads to a closure of the operations, until the permits are acquired. After the documents are reviewed, a physical inspection is carried out through the installations. If the terms and conditions of the permits are not physically met, the inspector makes note of this in the inspection certificate, where facts or omissions are meant to be recorded. This document is then signed by two representatives of the company and by the inspector when the inspection is over. If no irregularities are found, then the inspection process is resolved and a closing procedure is carried out. Should PROFEPA detect any irregularity, it initiates an administrative process in which the company is given a certain amount of time to prove that the irregularity has been resolved. This happens when, for example, the company only has copies of its permits within its installations and needs to present the originals. If there are any irregularities still present after this time, PROFEPA establishes certain measures to correct the situation. When the risk is imminent, corrective measures can be set during the inspection. After a specified time frame, an inspector goes back to verify that the changes have been made.

During an administrative process, every irregularity merits a sanction established in light of four factors, taking into consideration the maximum amounts that the law establishes. These factors include the economic capability of the offender, the negligible character of the offender’s decisions, the dimension of the environmental impact, and the reiteration of the offense. According to Arturo Rodríguez Abitia, Deputy Attorney for Industrial Inspection of PROFEPA, negligence is not easy to prove but there are certain elements that help to corroborate it. He adds, “It is important to note that the process of setting sanctions is not discretional, that there is a system to ensure fair justification of the sanctions.” The maximum amount per sanction equals 50,000 minimum salaries, which is a little over US$200,000. If there are several irregularities, then the amount of the sanction can be raised. If the company fulfills the requirements within the established time frames, the sanction may be reevaluated and decreased. If the company does not fulfill them, additional sanctions will be set and legal action can be taken by PROFEPA. Any disobedience or refusal to comply with PROFEPA’s instructions can be met with criminal proceedings.