CEC Council votes for publication of a factual record concerning the Ex Hacienda El Hospital submissions
Montreal, 29 May 2014—On 15 May, the Council of the Commission for Environmental Cooperation (CEC) agreed, in Council Resolution 14-03, to make public the factual record concerning the consolidated submissions SEM-06-003 (Ex Hacienda El Hospital II);and; SEM-06-004 (Ex Hacienda El Hospital III), filed respectively with the Secretariat on 17 July 2006, by Myredd Alexandra Mariscal Villaseñor, representing a group of nine persons, and on 22 September 2006, by Roberto Abe Almada (the “Submitters”).
On 12 February 2014, the CEC Secretariat delivered to the Council a final factual record in accordance with Article 15(6) of the North American Agreement on Environmental Cooperation (NAAEC), regarding the Submitters’ assertions that Mexico is failing to effectively enforce its environmental law in connection with alleged illegal acts that occurred during the operation, shutdown, and decommissioning of a paint pigment production plant (the “facility”) formerly operated by BASF Mexicana, S.A. de C.V., in the community of El Hospital in Morelos, Mexico.
The factual record provides information on the Submitters’ allegations that hazardous waste was disposed of illegally, that members of the El Hospital community were exposed to lead in pigment-containing material, and the alleged commission of crimes against the environment, following the dismantling of the BASF Mexicana facility. The factual record also brings to light details about evidence-gathering and contaminated site restoration.
The factual record reveals that:
- The Attorney General for Environmental Protection (Procuraduría Federal de Protección al Ambiente—Profepa) ordered BASF Mexicana to recover rubble and materials that were given and sold to community residents and to former employees. Some of these materials were dumped on 42 lots, including one occupied by a rural primary school.
- Profepa inspectors documented pigments and pigment-containing materials buried at the facility and adjacent property. Sampling to determine the hazardous characteristics of the pigments found was mostly not done, as the restoration program addressed their removal and disposal. BASF Mexicana opposed the decision to sample pigment and pigmented material, claiming that the samples were not representative; when the sampling was finally performed, it was done in a composite manner, with samples taken from the mounds of dirt from the excavation.
- On several occasions, environmental restoration activities were blocked by the site owner—who in addition is one of the Submitters—and they were finally halted in May 2005 by order of the Municipality of Cuautla. As a result, the final disposal of 3,603 50-kg polypropylene sacks filled with waste from the site was not overseen by an environmental authority, after BASF Mexicana took possession of the site.
- Fines totaling 1,872,000 pesos (US$176,000 at the then-current exchange rate) imposed on BASF Mexicana by Profepa were declared null and void by the courts, as were all actions of the environmental authority.
- One of the criminal investigations by the Office of the Attorney General of the Republic (Procuraduría General de la República—PGR) was suspended on 26 August 1999; after resuming the investigations, on 31 January 2008 the PGR determined that the statute of limitations on prosecution had expired on 12 October 2002. Although PGR maintained that BASF Mexicana had carried out activities harmful to the environment and to public health, the expiry of the limitation period made criminal charges unfeasible.
- The site of the facility was donated to the Public Charity (Patrimonio de la Beneficencia Pública). However, it has been taken over by persons who are using the Ex Hacienda as a restaurant, event venue, and day spa.
The Secretariat administers the process set out in NAAEC Articles 14 and 15, which allows the public to make a submission asserting that a NAAEC Party (Canada, Mexico, or the US) is failing to effectively enforce its environmental law. The CEC has published Guidelines for Submissions on Enforcement Matters explaining the process.
The purpose of a factual record is to provide an objective presentation of the facts relevant to the assertion(s) set forth in a submission under NAAEC Article 14, and to allow readers to draw their own conclusions regarding a Party’s environmental law enforcement. Although a factual record is not to contain conclusions or recommendations, it is expected to outline the history of the environmental enforcement issue raised in the submission, the relevant legal obligations of the Party, and the actions of the Party in attempting to fulfill those obligations.
For further information, please visit the CEC Submissions on Enforcement Matters website.