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NAFTA commission findings confirm border toxic waste a threat but offers no remedies.
Update on Metales y Derivados
by Jonathan Treat | May
After years of protests, pleas and litigation over tons of toxic waste lying
abandoned in Tijuana, Mexico at the Metales y Derivados lead smelting plant, authorities
finally have recognized the mess must be cleaned up. However, activists are frustrated
because the official recognition of the problem carries no real commitment to
The NAFTA-created North American Commission for Environmental Cooperation (NACEC)
issued a report in February acknowledging that the more than 6,000 tons of battery
acid, lead, arsenic and other toxic substances stored at the Metales site potentially
pose a “grave harm to human health” and recommended that corrective
action be taken.
Residents and activists who have worked on the case said they were disappointed
by the fact that the NACEC report fell short of offering specific recommendations,
such as a cleanup timetable or specific steps to take for remediation.
The commission to date has refrained from making judgements on such complaints,
limiting itself to conclusions of strictly “factual record” as it conducts
public consultations on whether its decisions should include more far-reaching
“It’s as if someone tells you that you have a malignant tumor but does
not provide any treatment,” said Lourdes Lujan, a resident of Colonia Chilpancingo,
a poor neighborhood of more than 10,000 people located in a ravine a mere 600
yards from the toxic Metales site.
The report was a long-awaited response to a complaint filed with NACEC in 1998
by the San Diego-based Environmental Health Coalition (EHC) in conjunction with
Mexican environmental and community organizers.
Among its findings, released on Feb. 11, are results of studies by toxicologists
showing levels of lead pollution in surface soil at the site that are 551 times
higher than U.S. EPA limits for contaminated residential soil. In addition, soil
more than a mile away from the site shows contamination at rates up to 55 times
higher than EPA-permitted levels, according to testing.
The NACEC record also states that the toxic waste at Metales “is not secured
to prevent any person from entering the site and avert direct human contact with
the pollutants. The pollutants are not contained in a manner to prevent their
dispersal. It is easy for anyone, including children, to enter the site and come
into direct contact with the hazardous waste, both the lead slag piles and the
waste kept in sacks and drums.”
The EHC complaint charged that by neglecting proper cleanup and containment,
Mexican authorities failed to enforce the country’s environmental regulations.
The case has been the most important on border toxic waste to be brought before
the trinational environmental commission by citizens.
Metales y Derivados recycled car and boat batteries at the Tijuana plant for
12 years. During that time, the U.S. owners of the smelting plant churned out
more than 6,000 tons of waste, including lead slag and other toxic materials.
At the beginning of its operation, which opened in 1972, the company sent its
toxic slag to Europe for further processing. But when new European environmental
laws took effect in the 1980s, the operators found the slag shipping was no longer
economically viable. So Metales began dumping the toxic waste on-site.
Mexican environmental inspectors first ordered Metales to clean up the waste
in September 1987. Nothing happened. Six years later, Metales was finally fined
$10,000 for environmental violations, and authorities issued a 14-point cleanup
order. However, that cleanup never happened either, and Mexican authorities closed
Metales in 1994.
Metales y Derivados is owned by the U.S. parent company New Frontier Trading.
Its top official Jose Kahn left Mexico in 1995, when a Mexican warrant was issued
against him. He currently lives in San Diego.
Without referring specifically to his case, U.S. environmental officials nonetheless
say they see increasing instances of out-of-compliance border business operators
using the border as an escape hatch when facing enforcement efforts.
“[C]ompanies responsible [for environmental violations] take advantage
of the fact that the border prevents Mexican authorities from taking action to
enforce Mexican law in the United States, while the U.S. authorities are not empowered
to take action to enforce Mexican law,” says an EPA report to the NACEC.
(“Cleanup of Toxic Waste Site in Tijuana Urged by Commission,” Copley
News Service , February 16, 2002)
Mexico’s environmental inspection system has been woefully inadequate in its
enforcement efforts, especially on the border, due to a lack of financial and
human resources in the face of the rapid spread of maquilas.
Mexican officials also say they lack legal and funding mechanisms, such as
the U.S. Superfund, to assure payment of cleanup costs.
As a result, notes EHC policy adviser César Luna, toxic waste that is
the responsibility of foreign corporations operating in Mexico is left to burden
He points to Mexico’s October decision to pay $16 million to settle a 6-year-old
NAFTA legal claim by the U.S.-owned Metalclad Corp. Some 20,000 tons of improperly
deposited hazardous waste the company owns at its site in the state of San Luis
Potosí remain a threat to nearby residents in the wake of the settlement.
“This [NACEC] report reveals a fundamental flaw of NAFTA. While individual
corporations can sue NAFTA countries and are able to obtain millions of dollars,
communities only get a toothless report,” Luna said.
Residents of Colonia Chilpancingo, and activists on both sides of the border
had hoped that the NACEC might offer tangible solutions for cleaning up the toxic
waste that plagues their community. But after four years of deliberation, the
commission has told them what they already knew, leaving them wondering how much
longer they’ll have to wait before the poisonous landscape at the abandoned Metales
site is cleansed.
“We have experts calling for an urgent response to an extreme and serious
problem. The report falls far short of providing a remedy,” Luna said. “Sadly,
we continue to be in the same position as before.”
Jonathan Treat, a journalist and independent documentary filmmaker, writes
regularly for the IRC’s Americas Program. Based in Oaxaca, Mexico, he also coordinates
educational study tours and volunteer opportunities in the region for U.S. students.
Citizen Submission on Enforcement
Matters | Commission for Environmental Cooperation
Tel (514) 350-4300
“Final Record: Metales
y Derivados | Commission for Environmental Cooperation
César Luna or Jason
Baker | Environmental Health Coalition
Tel: (619) 235-0281
“Cleanup of Toxic Waste
Site in Tijuana Urged by Commission” | Copley News Service , Feb. 16,
“CEC releases final
Metales y Derivados factual record” | CEC Press Release, Feb. 11, 2001
“CEC Submission Wins
a Victory for the Border, But No Closer to a Cleanup” | borderlines UPDATER ,
June 14, 2000
“The Metales y Derivados
Case” | borderlines vol. 7 no. 10, November 1999
Published by the Americas
Program at the Interhemispheric Resource Center (IRC). ©2002. All
Jonathan Treat, “Update on Metales y Derivados,” Americas Program Investigative
Article (Silver City, NM: Interhemispheric Resource Center, May 2, 2002).