In recent years, the state of Nuevo León and particularly the metropolitan area of Monterrey have faced poor air quality, which has caused the Secretariat of the Environment of Nuevo León (“SMA”) to issue various environmental alerts that restrict the normal operation of companies, as well as the activities of the general population.
These types of alerts have the effect of causing the Federal Attorney for Environmental Protection (“PROFEPA”) and the State Attorney for the Environment (“PROESMA”) to begin inspection and surveillance campaigns for industries within the State of Nuevo León, each authority in charge of verifying the industries under its jurisdiction.
As a result of these visits, both authorities can impose various sanctions, including the suspension and/or closure of the facilities that generate the emissions. For this reason, we recommend strengthening the environmental management of companies in terms of emissions, and to do so we propose the following legal actions:
1. Comply with contingency response programs. These programs are obligations imposed by the Single Environmental License (“LAU”) issued by the Ministry of Environment and Natural Resources (“SEMARNAT”), and the Operating License (“LF”) issued by the Ministry of Environment of the State of Nuevo León (“SMA”).
If the contingency response program is not complied with during the environmental alert, PROFEPA or PROESMA may impose fines of around $5,000,000.00, the suspension of activities at the facilities and/or the revocation of the LAU or LF.
2. Inform SEMARNAT or SMA about the measures implemented during the environmental alert. The above is so that the Ministries are informed of the measures implemented, and thus reduce the risk that they will request the Attorney General's Office to initiate inspections against the reporting company. If the Ministries were not informed in time of the actions implemented, it is advisable to make an extemporaneous payment, since in these cases the sanction would only be economic, but without compromising the normal operation of a project.
3. Comply with the main environmental obligations. Those who emit gases into the atmosphere must comply, at a minimum, with the following obligations: (i) have a LAU or LF; (ii) perform emissions analysis; and (iii) present the Annual Operation Certificate (“COA”).
4. Update the LAU or LF. The LAU or LF establishes the equipment that generates emissions and the obligations that the license holder must comply with. Every time there is a change within the production process of a facility, or new chimneys or equipment that generate emissions are added, it is necessary to update the LAU or LF. Otherwise, PROFEPA or PROESMA could suspend the operation of the equipment that is not registered in the license.
5. Be certain whether the plant is a fixed source of federal or state jurisdiction. Often, due to poor advice, it is common to find companies whose compliance is carried out before an authority that is not competent, which generates significant problems, since the authority that is competent does not have records of that facility.
In general terms, a company will be under the jurisdiction of SEMARNAT if its activities are listed in articles 111 bis of the General Law on Ecological Balance and Environmental Protection and 17 bis of the Regulations of said Law on Prevention and Control of Atmospheric Pollution, therefore the competent authorities will be SEMARNAT and PROFEPA. If the company's activities are not on said list, it will most likely be under the jurisdiction of SMA and PROESMA.
6. Avoid fugitive emissions. By law, all emissions must be conducted through a chimney to ensure their dispersion. Fugitive emissions are those that are not conducted, which is usually caused by flaws in the design of the industrial plant, uncontrolled growth of processes, lack of maintenance of the chimneys, among other reasons.
Fugitive emissions may cause PROFEMA or PROESMA to impose significant economic sanctions, and even order the suspension of production processes that cause fugitive emissions.
7. Chimneys must comply with the technical requirements established by regulations. In particular, they must be sufficiently high to allow the dispersion of the gases emitted; and have ports for sampling emissions. These requirements are established in the official Mexican standards and in the LAU or LF.
In the event that the chimneys cannot meet these requirements, for architectural or engineering reasons specific to the installation, a supporting study must be submitted to SEMARNAT or SMA requesting approval. This study will demonstrate that, despite not complying with the height, the chimney does not represent a risk to the environment or health.
If a chimney does not comply with legal requirements or does not have authorization from SEMARNAT or SMA, it will cause PROFEPA or PROESMA to suspend the operation of all equipment that emits from said installation.
8. Conduct emissions analysis at the frequency established by the LAU or LF. These analyses are the ideal means of testing whether a project is polluting or not. It must be considered that if the emissions are within the maximum permissible limits established by official Mexican standards, there is no pollution.
It is important to remember that, for these analyses to be considered valid, they must be carried out by laboratories authorized by SEMARNAT and accredited by the Mexican Accreditation Entity.
Finally, in the event of legal proceedings against the company, the analyses will be extremely useful in determining whether the company was polluting, and thus determining whether a closure or suspension of the company's activities is appropriate.
9. Submit the COA. This record is submitted annually, where the amount of gases emitted by a company during said period is reported. In the case of the State of Nuevo León, in practical terms the presentation of the COA is a condition for the renewal of the LF, so it is important to comply with this obligation. For more information, review the insight called “Annual Operation Certificate".
