TIJUANA – Monday, June 12, 2006 | Twelve years after this bleak industrial site was abandoned, cracked battery cases still pile in haphazard stacks, baking in the sun. Sears. DieHard. Delco Freedom II: Wrought lead carbon construction, its box reads. 60-month limited warranty.

High atop this steep hillside in the Mesa de Otay Industrial Park, the wind swirls and stirs up a cloud of dust. It blows across this lonesome square of cement, surrounded only by a broken fence and overgrown weeds.

The desert air carries the sounds from the eastern Tijuana neighborhood below and brings a small orange flag lodged in the cement flapping to life. This marker – left behind by a U.S. Environmental Protection Agency official who tested the soil for lead here last September – is evidence that more lingers atop this dusty hill than just the echoes of shouting children and barking dogs.

This is the site once operated by a lead-smelting company called Metales y Derivados. Those who know it simply call it “Metales.” Its history is a narrative of the border’s lawlessness, a tale of how that invisible line between countries can prevent effective enforcement of environmental laws.

Metales recycled American batteries before Mexican authorities closed it in 1994. Car batteries were sent there and cracked open with an ax. Lead was yanked out, melted down and returned to the United States.

Metales’ owner, José Kahn, fled Mexico and abandoned the plant in 1995, after criminal charges were lodged against him for violating Mexico’s environmental laws. The elderly man escaped to San Diego, where he died in 2005 without being prosecuted.

He left behind a toxic legacy. Neighbors in nearby Colonia Chilpancingo still look to the hillside that towers above them and worry about the remaining contamination. Rains bring rancid runoff down the hill, breezes stir up puffs of dust.

In the years since Metales opened, babies have been born with birth defects in Chilpancingo, a tin-roofed neighborhood of 10,000 people. Women have miscarried.

Such troubles occur in communities around the world. But here, in Colonia Chilpancingo the question becomes: Is Metales to blame? Lead exposure can affect the development of children’s central nervous systems. Community activists have fought for more than a decade to answer that question.

In 1998, they turned to the Commission for Environmental Cooperation to find answers. The commission was established along with the 1994 North American Free Trade Agreement. Some proponents advertised the commission as an environmental watchdog that would ensure the increase in commerce prompted by NAFTA wouldn’t exacerbate existing environmental problems in the United States, Canada and Mexico.

The commission was unprecedented. It became a repository for detailed reports on topics spanning North America such as Children’s health and NAFTA’s environmental impacts. And it empowered citizens as whistleblowers. They could file complaints against their governments for failing to enforce environmental laws. That’s what the San Diego-based Environmental Health Coalition and residents of Colonia Chilpancingo did. According to their complaint, the Mexican government had failed on many levels.

The government had shut down Metales, they noted, but never effectively contained 6,000 tons of hazardous waste left behind.

The government had filed charges against Kahn, but never sought his extradition.

The Commission for Environmental Cooperation agreed to investigate the case and document the facts.

Without the power to subpoena witnesses or compel testimony, the commission is dependent solely on the cooperation of the governments involved – the same governments it both investigates and relies on for funding.

So it had little recourse when Mexican officials filed parts of their response under a shroud of secrecy, though the commission’s final report says their confidentiality claim had no foundation.

“The bottom line is we have to do what they tell us,” says Geoff Garver, director of the commission’s Submissions on Enforcement Matters Unit, a three-person department that investigates complaints. “We don’t have certain powers that other tribunals would have.”

The commission eventually produced an exhaustive 154-page report detailing the health risks the site posed.

It corroborated many facts neighbors already knew. No one had tried to contain the contamination. Lead and cadmium were present in high levels. The site was unsecured. It also confirmed neighbors’ fears. Tests showed elevated levels of lead in the blood of about five percent of children living nearby.

A cleanup was needed, the final report said. Urgently.

This, from a document that took four years to complete.

The Commission for Environmental Cooperation’s report did not prompt any immediate remediation. A cleanup plan took another year for Mexican and U.S. environmental officials to develop independent of the commission. Four years have passed since the commission called Metales’ cleanup “urgent.” The multi-stage effort is still underway.

Critics say the wait is symptomatic of the commission’s weaknesses. NAFTA’s environmental watchdog has no teeth, they say, and no bite.

Amelia Simpson, director of the Environmental Health Coalition’s border justice program, which has pushed for the cleanup of Metales, calls the case a fundamental failure of NAFTA’s environmental side agreement, which created the commission.

The Commission for Environmental Cooperation is like a court that can find a defendant guilty of murder, Simpson says, but can’t impose a sentence.

The commission’s supporters admit it has handicaps and lacks enforcement power. They acknowledge it shouldn’t be used for emergencies. But, they say, it’s better than nothing.

“It does the best it can as a toothless watchdog,” says Martha Kostuch, a Canadian environmental activist who has filed complaints with the commission. “It gives you information you can take forward to court, or to the public or through the media. That’s not necessarily bad.”

Death and Dread

When two visitors enter the abandoned Metales site on a recent Tuesday morning, a bare-chested man loitering nearby grabs his shirt and jogs away, buttoning up as he trots off.

He circles, hovering in a buttercup-covered field in the distance, looking like a curious bird whose nest has been disturbed. He joins another man, who approaches. This young man’s jeans are streaked with dirt; dust covers the gray-and-red backpack hanging low on his small frame.

He’s looking for money to buy tortillas.

In broken Spanish – his native language is Tzotzil – he unfurls his life’s story. This toxic site is his home. Or it was.

He is from Chiapas. The southern Mexican state, which borders Guatemala, has a history with NAFTA. Home to a large indigenous population of subsistence farmers descended from Mayans, the state was the site of an armed Zapatista uprising symbolically launched Jan. 1, 1994 – the day NAFTA took effect. The state has long been wracked by poverty. The illegal immigration debate? Look no further. Historians call migration the oldest story of Chiapas.

This young migrant wears his cap backwards. His speech is hesitant. He talks with his hands. Wants to cross the border. Doesn’t have papers. Can’t get a job in Tijuana’s factories.

Despite the yellow-and-green warnings of residuos peligrosos – hazardous waste – painted on the walls surrounding Metales, people like him live at the unsecured site. Outside the smelter’s abandoned office, the weedy bushes smell of urine. Inside, dirty cardboard mats are strewn across the floor. Rats scurry through the trash.

He insists he no longer lives here. An old man did, he says.

“Se murió,” he says. He died.

So did Maria Guadelupe Luj&aacuten’s unborn baby. That was 1994, when the plant caught fire. Luj&aacuten remembers the flames, the black smoke that drifted down from the plant to her home in Colonia Chilpancingo. She remembers the people who came to her neighborhood with reassuring words. The smoke wasn’t harmful, they said. Four days later, she miscarried. The 32-year-old repeats this fact unblinkingly.

“The wind is still blowing,” Luj&aacuten says, sitting in a dimly lit room of the one-story building where she and other community activists have plotted strategy to affect the site’s cleanup.

Outside in the courtyard, two palm trees and a flowering hibiscus rustle in the breeze. That same warm wind brought more smoke this year from a January fire. The charred battery casings still linger. Some wonder whether the fire was deliberately set. This is an answer they may never know. The hilltop above them has long been shrouded in speculation, worries and dread.

But the contamination is slowly being remedied. Nearly 2,000 tons of lead were removed last year, the first step of an EPA-sponsored cleanup. Soil samples taken then – marked by those small orange flags that flutter in the breeze – were recently released. High lead levels were found throughout the site and at one spot along a heavily-traveled worker footpath.

Lead constituted 20 percent of one soil sample; 10 percent of another. By comparison, California soil has average lead concentrations of about .002 percent, says John Beach, an EPA scientist.

The leftover contamination does not pose a direct threat to neighbors, Beach says, nor to the hundreds of workers who climb the hill and walk past the site each day en route to their factory jobs.

But someone living there?

“There are levels [of lead] that are high enough to hurt people,” Beach says.

Environmental Empowerment

Some question whether the Commission for Environmental Cooperation was meant to deal with specific cases like Metales. Instead, says Geoff Garver, director of the commission’s citizen complaint unit, some view it with a broader purpose: handling environmental issues whose implications stretch across borders. The effect of nationwide logging, for instance, on migratory birds.

Richard Kiy, who served as then-U.S. Rep. Bill Richardson’s point person on NAFTA, says the commission’s intent was to prevent companies from breaking environmental laws to gain a competitive trade advantage. Kiy calls it a “polluter’s advantage.”

Kiy, who now serves as president and CEO of the San Diego-based International Community Foundation, says the commission has been helpful in shining a light on trans-border issues that would have otherwise been ignored. The commission helped expose the impacts of a proposed tourist cruise terminal on sensitive coastland in Cozumel, Mexico. The original proposal was scrapped and replaced with a much smaller project.

“If you look at it on balance,” Kiy says, “it’s not been as effective as its promoters set it out to be.”

The commission has had budget problems. Mexico’s government has tried to cut its share of the commission’s $9 million budget – which hasn’t grown in 12 years.

Critics say the commission works with an inherent conflict of interest. It is required to investigate the very governments that fund it. Investigators must rely on each country to cooperate to determine whether the same country has been violating its own environmental laws. Who decides which cases to investigate and release publicly? The officials with arguably the most at stake: Each country’s top environmental leader. In the United States, that’s EPA Administrator Stephen Johnson.

“The CEC and its investigators need the cooperation of the governments,” says Stephen Mumme, a border expert and political science professor at Colorado State University. “In cases that are particularly embarrassing, it’s logical to assume they’re not eager to see their dirty linen washed in public. It is potentially damaging. It is mud in the face. It means that administrative careers can be affected.”

A voiceofsandiego.org review of all 54 complaints filed since 1995 found investigations take an average of four years. Complaints involving environmental justice issues such as Metales have taken about 14 months longer to resolve than those concerning biodiversity and species preservation.

Garver defends his team’s record as being independent and thorough. But he also acknowledges the limitations they face and admits investigations should be completed faster.

One lasted almost seven years. Two complaints have been pending before the commission’s leadership for a year, awaiting a decision to investigate. Another has been pending six months.

Garver says his commission should be viewed as a tool – not the final solution.

“You have to look at the process in context,” he says. “Fair enough, we’re never going to be able to issue injunctions. At the same time, people have taken a look at whether the process has had an impact and I think there is some evidence it has.”

But the commission has grown weaker since its inception, says Gustavo Alan&iacutes-Ortega, who served four years on its Joint Public Advisory Committee. While Alan&iacutes acknowledges the commission’s usefulness – particularly in Mexico, where the majority of complaints are filed – he points to empty positions and the long-stagnant budget as evidence.

“I think that we have to see a change in the attitude of the governments in order for the commission to be as strong as it was in the beginning,” says Alan&iacutes, president of the Mexico City-based Mexican Environmental Law Center. “I think ‘political will’ would be the word.”

The environmental activists in Colonia Chilpancingo say their experience has left them with little hope for the commission. Activist Magdalena Cerda says children are most at risk from lead poisoning until they’re six years old. From complaint to cleanup of Metales has taken eight years.

Three years ago – a year after the commission’s report was released – Cerda says a child in Colonia Chilpancingo died of leukemia. The illness came on fast and strong. Within a month of the diagnosis, the child was dead.

“So it is like a ghost,” Cerda says. “You can’t prove that’s what Metales did to this child. But people have this fear. And there’s a lot of reason for it.”

Please contact Rob Davis directly with your thoughts, ideas, personal stories or tips. Or send a letter to the editor.

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