CEC Secretariat recommends factual record on the El Boludo Project submission

The submission, filed by Arcadio, Leoncio, Fernanda and Milagro Pesqueira Senday (Submitters) on 23 August 2002, alleges that Mexico is failing to effectively enforce its environment law. It claims that the company, Minera Secotec, S.A. de C.V. (Secotec), has exploited the low-grade placer gold deposit of the "El Boludo" project without complying with several environmental impact authorization conditions.

In response, Mexico stated that Submitters raised the same allegations in a public complaint (denuncia popular) filed against Secotec with the Office of the Federal Attorney for Environmental Protection (Procuraduría Federal de Protección al Ambiente—Profepa). The Party requested the Secretariat to stop processing the submission pursuant to Article 14(3)(a) of the North American Agreement on Environmental Cooperation (NAAEC), on the grounds that the public complaint proceedings are still pending. Mexico made no further comments in its response to the allegations found in the submission.

After reviewing the submission in light of Mexico's response, the Secretariat notified Council that pursuant to NAAEC Article 15(1), it considers the submission to warrant the development of a factual record. The Secretariat determined that neither the denuncia popular nor the inspection proceedings referred to in the submission and the Party's response are pending administrative proceedings requiring the Secretariat to desist. Additionally, whereas the Party asserts in its response that the denuncia popular relates to the same matter as the submission, the information provided to the Secretariat indicated that the submission encompassed additional failures to enforce.

The Secretariat reviewed the submission for the purposes of NAAEC Article 15(1) and determined that it raises central questions relating to whether the Party is failing to effectively enforce its environmental law in the case of the "El Boludo" project, questions that remain outstanding as the Party did not respond to the allegations in the submission. Information the Submitters provided indicated that the Mexican government inspected the site in April 2002, issued a temporary partial closure order to Secotec in June 2002, and lifted the closure order two weeks later. Questions remain regarding the basis for lifting the closure order and follow-up actions that Mexico has taken since that time. Accordingly, the Secretariat recommends development of a factual record to present information on those questions and on other action Mexico has taken in regard to Secotec's alleged noncompliance, including its alleged failure to restore the mining site as required in the environmental impact authorization, to comply with certain hazardous waste management requirements, to protect certain protected plant species and to stay within the area in which mining activities were authorized.

The CEC Secretariat informed the Council of its determination on 17 May 2004, and now, five business days later, is able to provide public notification of the determination and to present its reasons in the public registry. The full text of the submission, Mexico's response and the Secretariat's factual record recommendation are available on the CEC web site, at <http://www.cec.org/citizen>.

Article 14 of NAAEC provides that the CEC Secretariat may consider a submission from any person or nongovernmental organization asserting that a Party to the NAAEC is failing to effectively enforce an 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.

The CEC was established under the 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 top environment officials of Canada, Mexico and the United States.