Hazardous waste: where to put what no one wants.

Mexico needs more hazardous waste confinement sites, but no one wants them on their doorstep.

The government argues that without the legal requirements to make such sites safe, this waste will be disposed of illegally and at greater risk to human health and the environment.

In a move designed to increase the number of toxic waste containment facilities and facilitate their construction, a new minimum distance required between hazardous waste disposal sites and population centers was established in law on January 3.

Since then, companies can present, and have been presenting, projects to build such toxic waste confinement facilities to the government's General Directorate of Environmental Impact and Risk, part of Mexico's Environment Secretariat (Semarnat).

This regulation substantially reducing the minimum distance is only one legal move in a larger drama in which Mexico is reorganizing waste management and disposal, as well as redefining what is considered toxic. However, an analysis of how this regulation came about and how it was presented to the public reveals much about the ways in which environmental politics and the business of waste are conducted.

In the middle of news about Pemex oil spills, the new regulation--in fact a revision of an existing piece of legislation, NOM-055-Semarnat-2003--"that establishes the requirements to be met by sites designated for the controlled confinement of stabilized hazardous wastes," escaped the attention of the national press.

The same day it was published, on November 3, 2004, in the Diario Oficial de la Federacion (the official government journal), Environment Secretary Alberto Cardenas announced Mexico's compliance with its commitment to sustainable development made to the OECD (Organization for Economic Cooperation and Development).

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The Secretariat's communications department did not release details until nearly eight weeks later, and only then on a date when it was sure not to get too much scrutiny--December 31.

The title of the press bulletin was "Semarnat Eradicates Malpractice in the Disposal of Hazardous Waste," and the first point it underlined was that NOM-055-Semarnat-2003 "avoids the deterioration of aquifers and superficial bodies of water" (i.e. lakes). Some paragraphs further down, it mentioned the minimum distance required between hazardous waste disposal sites and gas pipes and aquifers, for example, but nowhere did it mention the distance such sites must be from population centers.

More Sites, Less Distance

Since the end of 2003, it has been official government policy to guarantee that more hazardous waste containment centers in Mexico are authorized to complement the single hazardous waste containment site operated by Rimsa in Mina, Nuevo Leon.

Cardenas said on December 3, 2003, three months after he took office, that his administration would encourage the creation of hazardous waste containment sites. The announcement followed the secretary's November 26 testimony before the Chamber of Deputies' Environment Committee on a severe toxic pollution case at the former Cromatos de Mexico plant near Mexico City which, upon closing in 1978, left behind 75,000 tons of improperly stored chromium.

Cardenas used the opportunity to tell the committee there had been "excessive" objections to new hazardous waste containment sites, and "for 15 years we have not been able to open a new hazardous waste containment site, because of the argument over not allowing a containment center near any population center."

He called on legislators to "make it possible that Mexico has in less than three years four, five, or seven confinement centers. We need them, and if we do not have them, we put at risk the health of millions of Mexicans."

He mentioned that Mexico generates an estimated 8 million tons of hazardous waste per year, including metals, used lubricants, and solvents.

In February of 2003, seven months before former Environment Secretary Victor Lichtinger was fired, Semarnat rejected a project for a new center for treatment and confinement of industrial waste in La Magdalena, Tecalli de Herrera, Puebla. The lucrative project was denied on the grounds that it failed to comply with specifications in NOM-055-Ecol-1993--the former name of the precursor to NOM-055-Semarnat-2003--that applied to nearby populations and their projected growth.

Semarnat stated in a February 27, 2003, press release that NOM-055 indicated that the nearest population should maintain a minimum distance of 25 kilometers from the landfill project and be of no more than 10,000 inhabitants in the year 2010. It pointed out that in this case the nearby populations of Tepeaca and Tecalli had a population of 62,651 and 16,000 inhabitants, respectively, with population projections for 2010 of 183,000 and 80,000.

Proecologia, which proposed the center in association with the French company Vivendi (a sister company of Rimsa), filed a complaint, arguing that Semarnat used outdated regulations to reject the project. There were no real legal grounds for the complaint, but Mauricio Pandal, director of Proecologia, was beside himself with fury.

"This company, offering a US$13 million investment, has been misled by local and federal authorities," he said on April 16, 2003.

Toxic Promises

Pandal said his company made the initial proposal at the end of 1998 to the previous administration, when Julia Carabias headed the Environment Secretariat.

"The Secretariat and local authorities affirmed that it was needed, and said we'd have no problem with the permit."

He said Proecologia's environmental impact studies, which were submitted to Semarnat in October 2002, took one-and-a-half years to complete. Before then, the company chose the 180-hectare site, which he said, "took us a long time, due to problems here in Mexico to select private property as nearly everything is ejido (co-operative farm land)."

Pandal said the state governor had been in favor of the project, as well as the local community.

"Puebla state produces 230,000 tons of waste per year. They wanted us to help with the solution. The government and society of Puebla do not agree with Semarnat's decision," Pandal said.

Greenpeace Mexico campaigned against the project in November 2002, giving a talk in the community on landfills and possible health impacts on the population. Mariana Boy, co-ordinator of the NGO's Toxics Campaign at the time, said they merely highlighted the anomalies in Proecologia's environmental impact study, and pointed out that the project didn't even meet with the minimum requirements in the law, such as distance from the population.

Ricardo Juarez, director of Semarnat's Environmental Impact and Risk Department, confirmed that the government was in favor of such projects and said it was possible that Proecologia's proposal could be successful in another part of the state.

Pandal said Proecologia might be interested in constructing the center in another part of the state, but only "if we could be sure they would guarantee it and not commit these illegalities. It's an injustice. I think we could win with the complaint, but I don't want a long legal procedure, I want an industry."

While the case gave Semarnat an opportunity to show it was enforcing environmental law, it was also clearly an embarrassment. Juarez said a situation in which companies propose investments of this magnitude and receive an impression that their proposal will be accepted, later for them to be met with a rejection, was rare. He hastened to add that revision of NOM-055-Ecol-1993 was on its agenda for 2003.

New Rules

On January 6, 2004, Semarnat published a draft revision of the regulation, proposing the distance from the perimeter of a hazardous waste containment center to a population center be no less than 500 meters, a substantial reduction from 25 kilometers.

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Greenpeace Mexico and other environmental organizations said they feared the proposed regulation could turn Mexico into a dumping ground for toxic waste. There was a 60-day period for public comment. The topic disappeared from sight until November 3 when the final version set the minimum distance at 5 kilometers.

The government did not relent, however. The increased distance (still only one-fifth of the original) was a result of a legal technicality, and not a change of heart.

"We found that a requirement in the New Waste Management Law, passed in October 2003, which specified a minimum distance of 5 kilometers from a population of 1,000 inhabitants or more, had not been eliminated," said Semarnat's director for industry, Luis Barojas. The regulation had to be congruent with existing law.

"This seems a disadvantage because it establishes a limitation," Barojas said, "but it is also an advantage as the site can be 5 kilometers from a population of 1 million, or 5 million inhabitants, that is, close to a big city."

The wording of this part of the revised NOM-055 (section 4.2.1.4: "The minimum distance of the hazardous waste confinement site, with respect to population centers, will be that established in the General Law for the Prevention and Integral Management of Waste and in its corresponding operating regulations.") is deliberately vague, in the hope that the law will eventually be modified, Barojas said.

What Lies Ahead

For environmental activists, Luis Barojas is the Mephistopheles of Semarnat, a role he plays with gumption.

Greenpeace Mexico's Marisa Jacott, manager of the Toxics Campaign, groaned when I repeated Barojas' comments that, "The previous regulation was based on geology, while the new one rests on engineering. In the United States, you see these sites right next to the road because they have good engineering."

"The guy's awful," she said. "It's much too early in the day to be talking about him!"

The premise that Mexico needs more toxic waste containment sites is completely wrong-footed, Jacott said.

"What Mexico needs is a policy that encourages a reduction in the generation of hazardous waste."

NGOs were not invited to participate in the working groups for this regulation, she said. Participants for NOM-055 were the National Association for Chemical Industries, the National Chamber for the Pharmaceutical Industry, the College of Environmental Engineers, and government agencies.

"The government says we do not have the academic credentials, nor the technical expertise, for our presence to be helpful in work groups designing new legislation on toxic waste."

Toxic waste disposal sites tend to be managed by foreign companies, who strike deals to avoid inspection, she alleged.

"We are not opposing the government just for the sake of it," Jacott said, explaining that the laws governing toxic waste are lax. Even then, they are not enforced, and business interests are paramount.

She gave a chilling example of the Metalclad case, in which the U.S. corporation won a US$16.7 million suit against Mexico in 2000, arguing "expropriation" on the part of Mexico's government for disallowing the operation of a hazardous waste containment site in Guadalcazar, San Luis Potosi (see www.rmalc.org.mx/, Chapter 11).

Barely two weeks later, Semarnat announced it would provide federal funds of up to US$4 million to clean up the Guadalcazar toxic waste dump, a curious move at first sight.

Waste Politics

Francisco Giner, Semarnat's undersecretary for environmental protection, said the site is not "a major risk for nature and human health," unlike Cromatos hexavalent chrome pollution in the State of Mexico, or Metales y Derivados in Tijuana. He also said the clean-up was unlikely to cost more than US$1.2 million.

"It's a fiction that the Guadalcazar site is dangerous. Moreover, we were ready to clean it up years ago," said former Semarnat delegate to San Luis Potosi, Jose Jesus Gama.

Gama explained the work was stalled then because the federal government wanted the state to cough up some of the funds. San Luis Potosi authorities refused to do so.

In 2003, the National Action Party (PAN) won the state governorship, and now the economy secretary has authorized the funds. Gama speculated that this could be related to Environment Secretary Cardenas' announcement that he was contending for the PAN's party leadership post and he wanted the support of Governor Marcelo de los Santos.

Giner also suggested Guadalcazar was now a national priority because it had become "a milestone in the development of hazardous waste sites in Mexico" and "a huge deterrent" to foreign investment in such sites.

The case was the opposite of Vivendi in the sense that the foreign investor had federal permission to build a toxic dump on the land that was then denied by the local authorities, by refusing a building permit. Metalclad sued successfully for damages to its investment.

Although there is nothing in the law to prevent this happening again, the clean-up of the high-profile dump is clearly an attempt to close a messy legal chapter, and pave the way for more hazardous waste confinement sites.

By Dr. Barbara Kastelein

Dr. Barbara Kastelein covers environmental legislation and policy in Mexico for the Bureau of National Affairs (BNA) in Washington, D.C.