Legal Law

Lead contamination in Mexico, quagmire of the North American Free Trade Agreement

A plume of groundwater with high concentrations of lead in the Mexican border city of Tijuana has contaminated the drinking water of an entire residential community called Colonia Chilpancingo. The plume, as it continues its underground movements, will no doubt threaten more Mexican citizens unlucky enough to find themselves living above its path. The owner of the lead smelter/battery recovery site that produced the contamination pleaded guilty to two of the 26 felony charges, was fined tens of thousands of dollars, and closed his operation. Despite all of this, lead waste estimated to be waist-deep in two football fields remains on site and continues to seep into the groundwater system.

Interestingly, the owner is free from legal action that would force him to take responsibility for the environmental damage he has caused. This situation has developed because the site owner is an American who lives across the US border, 20 miles away in an upscale San Diego neighborhood. The Mexican government simply does not have the power to put it through the process of law.

In 1972, José Kahn, a Chilean who became a US citizen in 1971, opened a lead smelting operation called Metales & Derivados in Tijuana, Mexico. Mr. Kahn processed old car and ship batteries from the US and shipped the slag, or lead-containing waste, to Europe for further processing. Environmental laws in the 1980s made it economically unfeasible to continue shipping the slag to Europe, so Kahn began dumping the waste on his Tijuana property. In 1987 and again in 1989, the Mexican government ordered Mr. Kahn to begin cleaning up the Metales & Derivados site. never complied. In 1994, environmental officials shut down his operation. Unfortunately, no one, including the Mexican government, had the money to begin such a massive cleanup effort, so the debris was left in place. In 1995, after the Mexican government convicted Mr. Kahn of environmental crimes, he creatively solved his problems by moving to San Diego to become a fugitive, where he remains untouched by Mexican authorities.

Today, the case of Mr. Kahn’s lead-contaminated property is in the hands of NAFTA, the North American Free Trade Agreement, the agreement that eliminated import tariffs on goods traded between Canada, the United States, and Mexico. In 1998, citizens of Tijuana and San Diego brought the case before the Commission for Environmental Cooperation, NAFTA’s environmental watchdog group. The commission issued its report on Metals & Derivatives, but the report has not yet been made public and may never be published. Lead debris at the site remains to this day, threatening nearby communities where significant numbers of children live.

Both Mexican and American citizens are waiting to see if the freedom created by NAFTA will have enough oversight and legal authority to safeguard the Mexican people from the onslaught of environmentally vagrant businesses like Metales & Derivados. Politicians in Washington promised that this protection would go hand in hand with the approval of the free trade agreement: the citizens of both countries are waiting to see if Washington fulfills these promises.

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