The abandoned Metales and Derivados battery recycling plant in Tijuana has become the topic of a the border area’s first ever citizen complaint to the Commission of Environmental Cooperation (CEC). On October 21, 1998, the Tijuana based Comité Ciudadano Pro-Restauración del Cañon del Padre A.C. and the Environmental Health Coalition (EHC) of San Diego submitted a claim to the NAFTA-created institution charging Mexico with negligence in handling the site, ignoring the effect of potential soil and water contamination on nearby communities, and failure to pursue the extradition of the facility’s owner to Mexico.

Owned by the San Diego-based New Frontier Trading Corporation, the Metales y Derivados site is located in Tijuana’s Otay Mesa Industrial park but also flanks a populous residential area, Colonia Chilpancingo. The plant was closed in March 1994 when the Mexican government cited it for non-compliance with environmental regulations; after the closure, some 6000 metric tons of lead slag, sulfuric acid, and heavy metals such as antimony, arsenic, cadmium and copper were left behind. PROFEPA, the Mexican equivalent to the EPA, took control of the site, built a containment wall around it, and covered the slag mound with plastic tarps to prevent air exposure. Activists, however, charge that those measures don’t adequately safeguard the health of area residents. Part of the containment wall has eroded and the plastic tarp has similarly degraded, leaving the slag exposed.

In 1993 Mexico began criminal proceedings against José Khan, the owner of New Frontier; in 1995 a Mexican federal judge issued a second warrant for his arrest, as well as for other people involved in the operation of Metales y Derivados, but Khan fled to the United States to avoid prosecution. In 1993 Khan, who is a Chilean citizen, pled guilty in a California court to two felony counts of illegally transporting hazardous material and paid a $50,000 fine-- but none of the funds were earmarked for cleanup of the Metales site

As the Metales y Derivados site sits unattended and continues to contaminate the surrounding area, activists complain, the New Frontier Trading Corp. is posting annual sales revenues between $700,000 - $1 million. Mr. Khan continues to operate New Frontier from its San Diego office.

Comité founder Maurilio Sanchez Pachuca says that Metales y Derivados has been a nightmare for area residents. "There have been 35 deaths [of] children due to encephalitis, 10 deaths due to congenital malformations, and various deaths due to cancer," he reported. Sanchez also described how dust from slag piles at the abandoned battery recycling facility is frequently carried off by the wind, covering the roofs and patios of nearby houses. "The people in the community are breathing this daily, with it irritating their eyes and causing skin rashes from air born toxins," he noted. "They have also closed 120 wells due to contamination of the area."

According to the EHC’s Cesar Luna, the waste’s proximity to residential neighborhoods--the site is perched on the edge of Otay Mesa immediately above Colonia Chilpancingo--makes the Metales site an obvious health threat. While in operation, residents of the community repeatedly complained to Mexican authorities about Metales' polluting activities, its hazardous waste disposal practices, and frequent health problems related to skin and eye irritations as well as gastrointestinal illness. "The toxic site is not marked with any warning signs to keep people out. There are clear signs of people entering as there is graffiti on the inside of the containment walls," Luna added.

Both groups emphasize that the United States and Mexico share equal responsibility in the Metales and Derivados case and should work together to solve the problem. Mexico’s failure to aggressively seek the extradition of Jose Khan, argue the activists, coupled with repeated violations of environmental regulations by Metales y Derivados’ U.S. based parent company (in 1992 New Frontier Trading was discovered transporting lead waste illegally to the facility on at least 26 different occasions) provide two good reasons for serious consideration of the case by the CEC. According to Luna, "this case poses an unprecedented argument, because not only does it assert environmental neglect on the part of Mexico and the U.S. company, but it also focuses on the ineffective enforcement on the part of Mexico to pursue the extradition of Kahn on the criminal level."

If the submission is deemed to satisfy the criteria of CEC articles 14.1 and 14.2, which govern citizen complaints, the commission will request a response from the Mexican government. If discrepancies exist between the two accounts, the CEC could decide to undertake its own investigation and eventually publish a non-bind "factual record" containing its conclusions on the matter. The CEC has received 20 article 14 submissions since 1995 but has published factual records on only two of them. If the commission accepts the Metales petition, it would be the first one to deal with the issue of toxic waste on the border.

But Luna is critical of the article 14 process. " The CEC doesn’t have a time line in terms of when they have to report [on a submission]," he observed. Recurring complaints that CEC reviews of citizen petitions can drag on for excessive periods of time has prompted the institution to rethink its guidelines; the CEC’s (Joint Public Advisory Committee) is currently soliciting public comments on a draft set of revised guidelines, which require deadlines by which the secretariat must review submissions.

Activists also note, however, that even with a speedier submission evaluation process, the trinational NAFTA institution is effectively toothless. The agreement that established the CEC gave it very limited powers. The institution’s Secretariat cannot initiate investigations or issue its non-judgmental "factual records" on citizen complaints against NAFTA countries unless authorized to do so by a governing council made up of the environment ministers from each country. And because they are beholden first to their government and secondly to the CEC, the influence domestic political pressures can have on those ministers is significant. "The [Metales y Derivados] submission is a…clear cut example of what the CEC was designed to work on," said Luna. "And we expect them to work on this case."

For all its shortcomings the article 14 process does provide environmentalists in Mexico, Canada, and the United States with a way to focus international attention on issues, sometimes prompting diplomatic consultations on possible solutions. "The CEC doesn’t have power to do anything ," observed Luna. "At best we are looking at exposing the problem, bringing the weight of the international community to bear, and trying to get it dealt with through the ways that we have."

Mexico has failed to effectively enforce its General Law on Ecological Balance and Environmental Protection (General Law) by neglecting to remediate the toxic dump site known as Metales y Derivados, a U.S.-owned abandoned lead smelter located in Tijuana, Baja California, Mexico. Specifically:

Mexico has failed to enforce Article 170 of the General Law because it has not taken the proper safety measures to prevent the Metales y Derivados site from posing an imminent risk to the ecological balance and to public health.

Mexico has failed to enforce Article 134 of the General Law because it has not taken appropriate actions to control or prevent soil contamination in and near the Metales y Derivados site.

Mexico has failed to enforce its laws by not procuring extradition.