CEC releases final Metales y Derivados factual record

The submission, brought forward by the Environmental Health Coalition et. al. on 23 October 1998, alleges that Mexico is failing to effectively enforce Articles 170 and 134 of Mexico's General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente-LGEEPA) in connection with the Metales y Derivados abandoned lead smelter in Tijuana, Baja California, Mexico. The submitters contend the site poses serious threats to the health of the neighboring community and to the environment. The Council approved preparation of a factual record on the failure alleged in the submission on 16 May 2000.

LGEEPA Article 170 calls for safety measures in cases of "contamination with dangerous repercussions on ecosystems, their components or public health." The situation contemplated by Article 134 regarding prevention and control of soil contamination is the existence of "soil that is contaminated by the presence of hazardous materials or waste."

In the development of this factual record, the Secretariat considered publicly available information, information provided by the Parties to the NAAEC and others, and technical information developed by the Secretariat through independent experts. In this factual record, the Secretariat presents the facts relevant to whether or not Mexico is failing to enforce LGEEPA Articles 170 and 134 effectively, without aiming to reach any conclusions of law on this question.

The factual record reveals that the site abandoned by Metales y Derivados is a case of soil contamination by hazardous waste, and measures taken to date have not impeded access to the site, prevented pollutants that may have dangerous repercussions on public health and the environment from being dispersed within and outside the site, nor restored the site to a condition suitable for use in conformity with the current zoning (i.e., light industry) of the Mesa de Otay Industrial Park, Tijuana, Baja California, in which it is located.

As far as it was possible to investigate, information on the risk to public health and the environment posed by the Metales y Derivados site has not been developed in a detailed, comprehensive and reliable manner. However, the experts who have studied other aspects of the Metales y Derivados case concur that it is necessary to remediate the site. In their opinion, given the volume of contaminated material and the lead concentrations present at the site, it is urgent to forestall the dispersal of the pollutants and limit access to the site so as to prevent adverse health effects in people living or working in its proximity.

The final Metales y Derivados factual record prepared by Secretariat is available electronically on the Citizen Submission on Enforcement Matters page: <http://www.cec.org/citizen/index.cfm?varlan=english>.

Under Article 14 of NAAEC, the Secretariat may consider a submission from any person or nongovernmental organization asserting that a Party to NAAEC is failing to effectively enforce its environmental law. Where the Secretariat determines that the NAAEC Article 14(1) criteria are met, it may then proceed with a process that can lead to the development of a factual record on the matter. In accordance with Article 15(2) of NAAEC, the Secretariat shall prepare a factual record if the Council, by a two-thirds vote, instructs it to do so.

The CEC was established under NAAEC to address environmental issues in North America from a continental perspective, with a particular focus on those arising in the context of liberalized trade. The CEC Council, the organization's governing body, is composed of the environment ministers (or equivalent) of Canada, Mexico and the United States.