Bordering Injustice

In maquiladora saturated Tijuana, Baja California, Mexico, where labor abuses and environmental degradation are the norm, U.S. and Mexico groups have fought for years to protect public health and the environment while encouraging corporate responsibility and the enforcement of established laws. But on any given day, if you take a tour of this area, you will not only see, but smell, taste and hear, that these admirable efforts have met minimal success. Maquiladora workers complain of the low pay, miserly benefits, and exposure to toxic chemicals; foul odors emanate from the prefabricated buildings creating a toxic brew so thick that it leaves a film in your mouth; toxic waste is discharged from the manufacturing plants without prior treatment and discolors the land and taints the water. Yet if you rely on the reports of the mainstream media, you would tend to believe that all is well and getting better along the border and that NAFTA has contributed to this rosy picture.

However, non-profit environmental justice groups, such as the San Diego-based Environmental Health Coalition (EHC), are trying to remove the rose colored glasses and expose the harsh reality of the U.S/Mexico border in an attempt to protect public and environmental health. EHC's battle against an abandoned maquiladora turned toxic dump, serves as a microcosm of what's wrong with border health and how NAFTA, for the most part, has exacerbated the problem.

Boom and Gloom: Tijuana's transformation from rural town to industrial center Just some thirty-some years ago when Mexico began its maquiladora program to attract foreign manufacturers, Tijuana was a tourist town with a population of around 200,000. Since then, its valleys, mesas, and hills have become crowded with make shift housing and industrial parks. Thousands of people have traveled from the interior regions of Mexico to Tijuana and other border towns for jobs that promise a better life. While the promise of a better quality of life has gone unfulfilled for the vast majority of people seeking employment in the maquiladoras, it has transformed Tijuana from a peaceful and serene tourist town to an industrial metropolis. Tijuana is now home to nearly one million people and the largest concentration of maquiladoras along the U.S./Mexico border.

"Maquiladoras and other types of industries arrived in Tijuana transforming our rural community into a sprawling industrial center. At first we were glad because we believed there would be work resources in good numbers close to our homes. But to our surprise, streams of contaminated water surfaced from everywhere, and our children and families began to get sick. We went to health centers to seek medical attention and to file complaints, but everything was in vain; we did not gain anything. We had to organize to fight for a better quality of life," stated Maurilio Sanchez Pachuca, president of Comit Ciudadano Pro Restauracin del Caon del Padre, a grassroots environmental organization based Colonia Chilpancingo in Tijuana.

Business has boomed, but it has been accompanied by ever-increasing gloom. Maquiladoras (foreign-owned companies operating with special tariff concessions in Mexico) are burdening the environment and damaging the public's health with industrial pollutants. Hazardous waste sites dot the border area like cancerous warts. Heavy metals, acids, solvents, and other industrial poisons pour out of company pipes and air stacks and into the surrounding communities. Progress cannot be claimed when toxics soil the ground, poison the water, and contaminate the air in many communities. "Progress is not measured by the amount of companies in a city. It is measured by the standard of living that includes social, environmental as well as economic factors," stated Cesar Luna, EHC's Border Environmental Justice Campaign Director.

Encouraged by NAFTA and the devaluation of the peso in the mid-to-late 1990s, even more industries are rushing to take advantage of the cheap labor and lax enforcement of environmental regulations in the Mexican border region. This economic boom along the border has left a hazardous mess in dire need of restoration.

"The 10-mile San Diego/Tijuana border has become the area's most heavily industrialized, populated and polluted and should serve as a harbinger of things to come for the remaining 1,990 miles of U.S./Mexico border if laws continue to be ignored or unenforced. If the San Diego/Tijuana region can be successfully restored to a healthy and vibrant region, other border cities can look to San Diego and Tijuana with hope and inspiration of what can be accomplished instead of disdain and disappointment of what was demolished," professes Luna.

Metales y Derivados, a maquiladora turned toxic dump site, vividly portrays the picture of progress along the border gone awry. Environmental Health Coalition (EHC) and Comite Ciudadano Pro Restauracion del Canon del Padre (Comite), two groups that have joined forces to reverse the environmental decay, hope that it can become a model for success as opposed to a symbol of toxic trade.

The Toxic Legacy of Metales y Derivados

In 1972, New Frontier Trading Corporation, a San Diego-based wholesale metals company, initiated lead smelting operations in Tijuana, Baja California, Mexico under the name of Metales y Derivados (Metales). The company's principal operation in Mexico consisted of recovering lead, copper, and phosphorous through the smelting of used lead acid batteries and other scrap materials that were brought from the United States into Mexico as recyclable products. New Frontier Trading Corporation, through Metales, processed these materials to produce lead ingots for resale in the United States.

Recycling lead batteries is a filthy process that consists of breaking the used battery, separating its components, smelting and refining the lead. This produces several types of hazardous wastes including lead oxides, lead sulfites and lead dioxide in the form of dust, soil, sediments and sludge. Sulfuric acid and acid leachates, heavy metals are also common by-products of battery recycling as well as contaminated battery casings, metal scrap and contaminated building structures and equipment.

With complete disregard of Mexican law and the La Paz Agreement, which require the return of wastes produced by maquiladoras to their country of origin, Metales accumulated and stockpiled the hazardous waste produced by the smelting operations rather than returning it to the United States. This act violated the treaty and Mexican law.

All of these hazardous wastes have remained on site completely exposed to the natural environment as the result of Metales' reckless operations and abandonment. As if the haphazard operations and abandonment weren't bad enough, Metales also has a history of non-compliance with Mexican laws, and the owner was convicted of a felony for illegally transporting hazardous waste across the U.S./Mexican border.

In 1992 Metales was temporarily closed by the Attorney General's Office on Environmental Protection (PROFEPA) for failing to comply with Mexican environmental law and regulations. In 1993 PROFEPA closed Metales for a second time after finding several violations of the law. Also in 1993, PROFEPA filed a complaint in federal court against Jose Kahn, owner of Metales. Finally, in 1994, PROFEPA closed Metales indefinitely for failing to correct the specific violations for which they were formerly cited.

The owners and operators abandoned the company upon its closure and returned to the United States, leaving behind an estimated 6,000 metric tons of lead slag, waste piles of by-products, sulfuric acid, and heavy metals such as antimony, arsenic, cadmium and copper from the battery recycling operations.

In 1995, PROFEPA built a cement containment wall around Metales and covered the piles of lead slag with plastic tarp to minimize the escape of the waste into the environment. But the wall eroded from the sulfuric acid on site or was fractured from the weight of the slag. The supposedly protective plastic tarp disintegrated, once again allowing the lead slag to infiltrate the surrounding environment. Since there are no "danger" or warning signs to inform people about the potential health risks that the site poses, many people, including children, have entered the premises seeking remnants of any value for resale or just to explore.

Sanchez describes the site as resembling a war zone with dilapidated building fragments, ripped bags and corrode barrels, plastic covering that flutters in the breeze amidst heaps of battery scraps that litter the approximately 5-acre site.

Today, you might not be able to account for the approximately 6,000 metric tons of lead slag because improper containment and disposal have allowed seasonal rainfall and winds to carry the toxic remains into the air and the water. This toxic disbursement places nearby communities at imminent risk for exposure and associated health impacts and must be remedied immediately. While the quest for a remedy has been long and it has also been varied. People on both sides of the border, but specifically in Colonia Chilpancingo, have employed a variety of tactics to resolve the problem.

A Picture Imperfect Community

Colonia Chilpancingo, home to approximately 1,000 families, is not unlike other villages along the U.S./Mexico border that have grown in recent years with migrants lured by the promise of a good job.

A mix of new and old housing structures coupled with worn schools and stores, situated along dirt roads that flood in the rains, make-up this poor yet hopeful community. On the east side of Colonia Chilpancingo, rows of make-shift housing, that provide inadequate shelter even on the best of days, is inhabited by struggling maquiladora workers and stray dogs. The symbol of hope and future prosperity is a well-kept community park at the center of town that offers green grass, trees, picnic benches and play equipment for all to enjoy. However, another disturbing similarity between Colonia Chilpancingo and other border towns is the exposure to toxic pollution from nearby maquiladoras.

Residents claim that toxic runoff from the abandoned lead smelting factory flows past their homes, turning the water into a rust-colored poisonous concoction.

"The children play in the water as most children do. But our children are playing in water that is contaminated and I am afraid for their health," lamented Olga Rendon, a 25-year old mother of two. She continued, "All I am asking for is that they clean up the site."

While in operation, residents repeatedly complained to Mexican authorities about Metales' polluting activities, illegal hazardous waste disposal practices, and the frequent health problems related to skin and eye irritations. Despite overtures from the Mexican authorities, residents contend that nothing has been done to clean up the site. "When you see Metales, which now could be mistaken for a toxic ghost factory, you can't argue with the people," stated Luna.

If at first you don't succeed...

According to a report in the Wall Street Journal, "In many ways, the environmental community couldn't ask for a better poster child ( Metales) to illustrate some of the troubles that have come with the economic boom along the California border." EHC and Comite believe that Metales serves as a "text book" case of international trade gone wrong and, therefore, it was logical to elevate the Metales case to the international arena by way of the NAFTA environmental side agreement.

On October 21, 1998, EHC and Comite broke new ground as they become co-filers on an unprecedented NAFTA petition. The petition, the first to be filed from the major San Diego/Tijuana trade gateway, asserts that both the U.S. and Mexico share responsibility for the clean up of Metales and must work cooperatively to ensure it happens.

Formally known as a citizen enforcement petition, the filing was the first to address border pollution and calls on the Commission for Environmental Cooperation (CEC), an international panel established under NAFTA's environmental side agreement, to investigate the toxic dump. The CEC has the power to investigate Metales, prepare a "factual record" (documented case history) and release that record to the public.

'We call on the CEC to do the right thing for the thousands of people living dangerously close to this toxic dump. We are confident that the CEC has the authority to use their powers to the fullest extent to resolve the problem. Anything less would be a miscarriage of justice and result in continued environmental degradation and harm to public health," declared Luna during the press conference organized to announce the filing of the petition.

United States Congressional Representative, Bob Filner, whose district includes the San Diego/Tijuana region supported the filing by saying," The United States cannot represent itself as a good neighbor to Mexico if we refuse to intervene when a U.S company acts illegally and irresponsibly in their county. I support this petition and join EHC in their call for the CEC to use its full authority to ensure clean up of this site immediately."

Another first is this petition's demand for the owner of Metales, Jose Kahn who resides in San Diego, to be extradited back to Mexico to face charges of violating Mexican law. While extradition is commonplace between the two countries on drug related issues, this would be the first case in which a U.S. citizen was extradited to Mexico for environmental crimes.

"The impacts could be staggering if this petition set a precedent on extradition for environmental crimes. Business owners and operators would be less likely to break the law if they knew they could not hide out in another country to escape prosecution," proclaimed Luna. The need for the U.S. and Mexico to cooperate in this process is an added benefit and also demonstrates the truly binational nature of the problem of border pollution.

"We are investing considerable resources in the citizen submission process, but we are not placing all of our eggs in the CEC. Everyone deserves the right to live and in a healthy and safe environment and we will exhaust all avenues until Metales is cleaned up," proclaimed Sanchez.

The CEC Petition: (How) Does it Work?

The provisions of the citizen enforcement submission allow groups in the United States, Mexico and Canada to register complaints with the Montreal-based commission that one of the three nations is not upholding its environmental laws. Once accepted, the petition goes through several internal review processes before it is considered for a factual record. The Council, which is the governing body comprised of cabinet level environmental officials, must vote to approve the preparation of the factual record and the release of that record to the public.

The CEC, which has received 18 previous submissions to date, has no enforcement power in such cases beyond the review and the publication of their findings. The groups are well aware of the CEC's limitations but believe that the international spotlight and the public shame will prompt the U.S. and Mexican governments to cleanup the corroded barrels of lead slag, eroding bags of hazardous wastes and piles of battery remnants. "This is a test for the NAFTA signers to do what they promised to do," challenged Luna.

Currently, EHC and Comite's petition has been received by the CEC and is going through the first internal review process.

And environmental justice for all

The efforts to clean an abandoned lead smelter are not just a matter of local concern. "The U.S./Mexico border is and has been a laboratory for breeding international commercial relationships since the maquiladora system began in 1964," claims Luna. Here is where we can see both the positive and negative impacts of free trade or quasi-free trade relations between countries. Metales symbolizes free trade gone wrong and must be held up as an example of what not to do.

EHC and Comite's principal objective in going international with Metales y Derivados is to protect the colonia's health and the environment. However, "we are feeding two birds with one seed," proclaimed Sanchez. "We want the clean up of Metales for our health's sake, but we also want to send a message to the international community about the destructive forces of free trade to prevent future environmental disasters, here and elsewhere along the U.S./Mexico border."

What happened with Metales can happen in other parts of Mexico and even in other countries as free trade promises to expand throughout Latin America. According to Luna, "So long as environmental enforcement remains virtually nonexistent and basic infrastructure needs fail to keep up with industrial development, we will see other Metales along the free trade trail."

• 104 Globalization
• 110 Trade Justice
• 116 Human Rights
• 183 Environment
• 204 Manufacturing