Is the Clinton administration developing a conscience on border pollution? When Energy Secretary Bill Richardson comes to San Diego May 11 to host the energy conference of the Asia-Pacific Economic Cooperation forum, he will be the bearer of glad tidings -- at least for UCSD.
On April 6 in Washington, D.C., Richardson delivered a mea culpa on behalf of the current administration. He admitted that in the rush to make money, NAFTA had "failed to [ensure] that we have sufficient health and safety in the border region."
The genial secretary promised to develop a program to reduce pollution along the border. UCSD and three other border universities will help develop technologies and carry out research to make it happen. And to any jaded environmentalists who may have heard government promises before, he emphasized that the enabling "Memorandum of Understanding" he was about to sign meant business. "It will not just be a piece of paper," he said. "It will have bucks behind it."
Sure enough, a week later, April 13, the bucks appeared -- at least on paper. The U.S. Senate passed S-397, the National Materials Corridor and United States-Mexico Border Technology Partnership Act of 2000 -- sponsored by Democratic senator Jeff Bingaman from New Mexico. "There is authorized to be appropriated to carry out this Act $10,000,000 for each of fiscal years 2000 through 2004," reads the legislation.
Of course, this is just an authorization; only the actual appropriation will make it real. But $50 million sounds sweet, and it's a good start to alleviating the mess left by laissez-faire business practices along the 2000-mile strip that starts at Imperial Beach.
But tell that to the pollution-weary citizens of Tijuana's Colonia Chilpancingo, sitting downwind and downwater from one of the worst lead-leaking sites on record. While Washington thinks macro -- 2000-mile border cleanup -- people like San Diego environmental lawyer Cesar Luna are thinking about one small Tijuana battery-recycling site, which belongs to San Diego resident José Khan. Chilpancingo leaders have been complaining about its effects on their community for years.
These local problems, says Luna, are the real world. And they're the ones beyond the scope of this bill. Luna doesn't see S-397 saving the Mexican victims of such toxic dumping as Kahn's lead-leaking Metales y Derivados, the mesa-top plant at Tijuana's Otay section. Six thousand metric tons of lead slag have been eating their way through the cinderblock walls ever since PROFEPA, the enforcement arm of Mexico's Environmental Protection Agency (EPA), shut it down in March 1994. Years of complaints from residents in the valley below, including claims of cancers, deformities, and respiratory illnesses, have met with no response.
"We've been hitting a wall trying to get NAFTA's environmental watchdog organization, the Commission for Environmental Cooperation [CEC], to take action against this site," says Luna. "Our 'citizens petitions' have been sitting at the commission for almost three years!"
So they plug ahead on their own. Last month Luna captured some startling evidence on his camcorder when he documented the walls being eaten away by battery acid. "The walls were starting to collapse. The entire back wall of the site came apart, and lead slag had started to escape. Apparently the owner's representative in Mexico agreed to rebuild that wall. So you had one guy working there with absolutely no protection, right in the middle of this hazardous-waste stuff, putting the wall back up. I filmed him. He explained that there was no big deal, that the government officials had promised him gloves and boots, but they hadn't arrived, and now they were about 70 percent done with the wall anyway. I explained to him that what he was handling was really serious hazardous waste; if he was in the U.S., he would have been wearing a kind of astronaut's suit to handle that material. He had absolutely nothing. We were shocked. We contacted the EPA. They knew how bad it was. People we took down once before had gagged, it was so bad. There's no doubt it would be a Superfund site if it was in the U.S."
In the agency rulebook, a "Superfund" site has a toxic situation serious enough to constitute "an imminent and substantial endangerment." But according to Chris Reiner, the agency's California expert on toxic waste, Mexico's PROFEPA can't afford to clean this mess up, and the U.S. isn't authorized to.
"We have looked at the possibility of [putting EPA money in to clean up the Metales site]. The only money that we even possibly would be able to dedicate towards that would be money from our Superfund program. But, legally, we wouldn't be able to spend money on this site. We can only apply the Superfund to sites in this country. If this site had groundwater carrying across the border, then there'd be a stronger chance, but our mandate from Congress is to protect human health and the environment in the U.S., not in other countries."
So Luna and the Environmental Health Coalition, and the Tijuana-based Comité Ciudadano Pro-Restauración del Cañon del Padre, filed a "citizens submission" to the commission, claiming Mexico had failed to enforce Articles 170 and 134 of its General Law of Environmental Equilibrium and Protection. They also said Mexico had "failed to effectively enforce its environmental laws," because it wouldn't move to extradite José Kahn from San Diego to face trial in Baja California.
How responsive is NAFTA? "In the almost three years we've had this petition with them, there hasn't been any response whatsoever."
To make matters worse, says Luna, when the commission did submit his complaint to Mexican authorities, the Mexicans sent their response only to the Commission for Environmental Cooperation, insisting it be kept confidential. "The agency's goal is, in general, to ensure that we have as open a process as we can," says Reiner. "And the claim of confidentiality on the part of Mexico in response to this makes it very, very difficult -- even the Environmental Protection Agency, as one of the agencies represented on the commission council, can't see the documents."