Factual Record

Molymex II Submission

(SEM-00-005)

Prepared in Accordance with Article 15

of the North American Agreement on

Environmental Cooperation

August 2004

Table of Contents

1. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1.1 Molymex’s operations. . . . . . . . . . . . . . . . . . . . . . 8

1.2 Assertions regarding enforcement of environmental

impact law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1.3 Assertions regarding land use . . . . . . . . . . . . . . . . . 9

1.4 Assertions regarding air pollution . . . . . . . . . . . . . . 10

1.5 Additional Coprodemac concerns regarding Molymex . . 12

2. Summary of the Submission and the Response . . . . . . . . . 14

3. Scope of the Factual Record . . . . . . . . . . . . . . . . . . . . 18

4. The Environmental Law in Question . . . . . . . . . . . . . . . 19

5. Summary of other Relevant Factual Information . . . . . . . . 21

5.1 Process Used to Gather Information . . . . . . . . . . . . . 21

5.2 Background on the Company Molymex, S.A. de C.V. . . . 22

5.3 Molymex Relations with the Community . . . . . . . . . . 25

5.4 Environmental Impact Law Enforcement with respect

to Molymex . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

5.4.1 Environmental Impact Assessment in

Mexican Law . . . . . . . . . . . . . . . . . . . . . . 30

5.4.2 Application to Molymex. . . . . . . . . . . . . . . . 33

5.4.3 Outstanding Legal Issues . . . . . . . . . . . . . . . 38

3
5.5 Enforcement of Land Use Law with respect to

Molymex . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

5.6 Enforcement of Environmental Law Concerning SO2

with Respect to Molymex . . . . . . . . . . . . . . . . . . . 45

5.6.1 Legal Framework for SO2 Emissions . . . . . . . . . 45

5.6.2 SO2 Emission and Ambient air Limits Applicable

to Molymex . . . . . . . . . . . . . . . . . . . . . . . 49

5.6.3 Relationship between the SO2 Limits Imposed

on Molymex and Compliance with NOM–022 . . . 52

5.6.4 SO2 Emissions of Molymex . . . . . . . . . . . . . . 54

5.6.5 Ambient SO2 Concentration in the Molymex

Area of Influence . . . . . . . . . . . . . . . . . . . . 57

5.7 Effects of Molymex Air Emissions on the Health of the

Population and Environment of Cumpas, Sonora . . . . . 64

5.8 Timeline . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74

6. Closing Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

Figure

Figure 1 Map showing location of Molymex . . . . . . . . . . 23

List of Appendices

Appendix 1 Council Resolution 02-03: Instruction to the

Secretariat of the Commission for Environmental

Cooperation (CEC) Regarding the Assertion that

Mexico is Failing to Effectively Enforce Certain

Environmental Laws Regarding the Operation of

the Molybdenum Trioxide Production Facility by

Molymex S.A. de C.V., Located in the Municipality

of Cumpas in the Mexican State of Sonora, Mexico

(SEM-00-005) . . . . . . . . . . . . . . . . . . . . . . . 83

Appendix 2 Overall Plan to Develop a Factual Record with

Regard to Submission SEM-00-005. . . . . . . . . . . 87

4 FACTUAL RECORD: MOLYMEX II SUBMISSION
Appendix 3 Process for Gathering Information for the

Development of the Factual Record on Submission

SEM-00-005 (Examples of relevant information) . . . 93

Appendix 4 Information Requests to Mexican Authorities

and List of Recipient Authorities . . . . . . . . . . . 101

Appendix 5 Information Requests to NGOs, JPAC and other

Parties to the NAAEC . . . . . . . . . . . . . . . . . 111

Appendix 6 Information Gathered for the Development of

the Factual Record on Submission SEM-00-005

(Molymex II) . . . . . . . . . . . . . . . . . . . . . . 119

Appendix 7 Schematic Flow Chart of Molymex Process and

Photo of the Molymex Plant. . . . . . . . . . . . . . 147

Appendix 8 Summary of Specifications Contained in

Molymex’s Operating Permits . . . . . . . . . . . . 151

Appendix 9 Graphs of 6-hour Average SO2 Stack Emissions . . 157

Appendix 10 Periods without Data in Perimeter Monitoring

Reports. . . . . . . . . . . . . . . . . . . . . . . . . . 161

Appendix 11 Occurrences of Negative Values in Perimeter

Monitoring Reports . . . . . . . . . . . . . . . . . . 167

Appendix 12 Minimum and Maximum Perimeter Monitoring

Reported Values . . . . . . . . . . . . . . . . . . . . 171

Attachments

1. Council Resolution 04-07 . . . . . . . . . . . . . . . . . . . . . . 177

2. Comments of Mexico . . . . . . . . . . . . . . . . . . . . . . . . 181

TABLE OF CONTENTS 5

1. Executive Summary

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (NAAEC) establish the process regarding citizen submissions and the development of factual records relating to the effective

enforcement of environmental law. The Secretariat of the Commission

for Environmental Cooperation (CEC) of North America administers

this process.

On 6 April 2000, Academia Sonorense de Derechos Humanos, A.C.

and Domingo Gutiérrez Mendivil (the “Submitters”) filed a submission

with the Secretariat in accordance with NAAEC Article 14. The submission asserted that Mexico is failing to effectively enforce its environmental law in relation to a molybdenum roaster operated by Molymex, S.A.

de C.V. (“Molymex”) in the municipality of Cumpas, Sonora, Mexico.

On 17 May 2002, the Council resolved unanimously to instruct the

Secretariat to prepare a factual record in relation to the alleged failure to

effectively enforce the General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al

Ambiente—LGEEPA) and Mexican Official Standard NOM-022-SSA1/

19931 (“NOM-022”) with respect to the operation of the molybdenum

production plant by Molymex S.A. de C.V., to which submission

SEM-00-005 refers.

In the development of this factual record, the Secretariat considered publicly available information, information provided by Mexico,

Molymex, the Submitters, and other interested parties, and technical

information developed by the Secretariat through independent experts.

In this factual record, the Secretariat presents the facts relevant to

whether or not Mexico is failing to effectively enforce, with respect to

Molymex, various provisions relating to environmental impact, the definition of zones in which polluting facilities may be sited, and ambient air

SO2 concentrations. This factual record centers on enforcement carried

7

1. NOM-022-SSA1/1993 – Environmental Health. Criterion for assessing air quality

with respect to sulfur dioxide (SO2). Standard value for ambient air sulfur dioxide

(SO2) concentration as a public health protection measure. Published in the Official

Gazette of the Federation (Diario Oficial de la Federación—DOF) on 23 December 1994.
out by Mexico and not the actions taken by Molymex, although detailed

facts regarding Molymex are presented herein.

1.1 Molymex’s operations

Molymex, S.A. de C.V. was incorporated in May 1979 as part of

Grupo Frisco and, until 1991, operated a molybdenum roaster in

Cumpas and other facilities. On 30 June 1994, Grupo Frisco sold the

roaster and its Molymex shares to the Chilean consortium Molymet S.A.

On 5 January 1995 Molymex resumed operations under an operating

permit (OP) issued by the Ministry of Social Development (Secretaría de

Desarrollo Social—Sedesol) on 11 February 1994. The authorized production for the plant increased from 15 million pounds annually in 1994 to

40 million pounds annually following the expansion project authorized

in January 1999. Since Molymex resumed operations in 1995, several

Cumpas and Hermosillo residents and civic organizations have accused

the company of violating environmental law and causing contamination

that allegedly affects the health of the residents of the Municipality of

Cumpas.

The molybdenum sulfide roasting process that Molymex employs

produces air emissions of SO2 and solid and liquid particles. SO2 is a colorless gas with a characteristic acrid odor and bittersweet taste; human

beings can detect its taste at ambient air concentrations as low as 0.3

parts per million (ppm) and its smell at concentrations of 0.5–0.8 ppm.

SO2 can cause respiratory diseases, especially in children, the elderly

and asthmatics, and can worsen pulmonary and heart problems.

SO2-caused health problems are worsened by the presence of particles

and ozone. The principal effect of SO2 in the environment is the formation of acid rain, which damages forests, crops, houses and buildings,

and contributes to the acidification of soils, rivers and lakes. SO2 is carried over great distances and reacts to form particles that are deposited

far from their source.

1.2 Assertions regarding enforcement of environmental impact law

The submission asserts that the Mexican environmental authorities are failing to effectively enforce its environmental impact law in the

case of Molymex by allowing it to operate without an environmental

impact authorization (autorización de impacto ambiental). The environmental authority asserts that the environmental impact assessment

(evaluación del impacto ambiental—EIA) procedure was not applicable to

Molymex because the obligation to perform an EIA was incorporated

8 FACTUAL RECORD: MOLYMEX II SUBMISSION
into Mexican law in 1982, it is of a purely preventive nature, and its retroactive enforcement would be unconstitutional. Mexico further states

that it has in fact effectively enforced environmental impact law,

because Molymex’s expansion project of 1998 underwent an EIA and an

authorization was issued for it.

The environmental authority’s arguments for not requiring

Molymex to obtain an environmental impact authorization involve legal

issues not yet resolved by the Mexican courts. Although EIA is a preventive tool, none of the versions of the law in fact provides that EIA may

not be applied to existing activities. To the contrary, the Regulation to

the LGEEPA on Environmental Impact Assessment (Reglamento de la

LGEEPA en Materia de Evaluación del Impacto Ambiental—REIA) currently

in force, as well as the former Regulation to the LGEEPA on Environmental Impact (Reglamento de la LGEEPA en Materia de Impacto

Ambiental—RIA) expressly contemplate the authority’s power to require

an EIA for existing works and activities. The federal courts have not yet

had an opportunity to interpret these provisions one way or another.

Nor is there any existing interpretation by the Mexican courts

as to the constitutionality or unconstitutionality of applying the EIA

procedure retroactively. The Mexican Supreme Court (Suprema Corte de

Justicia de la Nación—SCJN) has indicated that retroactive enforcement of

a law is not unconstitutional when the public interest is at issue, but the

federal courts have not yet specifically analyzed the constitutionality of

applying EIA retroactively as a procedure in the public interest. Also

still open to interpretation is the question of whether the application of

EIA is retroactive where applied not with respect to environmental

impacts caused in the past, but rather to promote preventive, corrective

and control measures in the future for an existing activity. The same is

true on the question of whether it is retroactive enforcement to require

an EIA of an activity which, although started prior to the entry into force

of the EIA requirement, was suspended and resumed after the EIA

requirement took effect.

1.3 Assertions regarding land use

Another allegation in the submission is that Mexico is failing to

enforce LGEEPA Article 112 by failing to apply criteria for the protection

of air quality so as to define properly the zone in which polluting industrial facilities may be sited in Cumpas, Sonora. The land use permit

issued to Molymex by the Municipality of Cumpas on 5 October 1998

indicates that the municipality does not have a land use or urban development regulation governing this administrative matter. The permit

EXECUTIVE SUMMARY 9
indicates that Molymex was granted the permit to use the land for industrial purposes as a result of a resolution passed by a majority vote of the

Municipal Council, based on a historical land use pattern and because

the use for industrial purposes of the lots on which Molymex is located is

an established fact. The Municipal Council determined that its location

is appropriate for such use since it is outside the residential area and the

projected growth zone for that area. The municipality asserts that the

zone where polluting facilities may be sited as required by LGEEPA

Article 112 was defined through the permit issued to Molymex and by a

roaster marked on the map of the Cumpas Municipal Development Plan

1998–2000. Mexico’s response raises the legal question of whether issuing a land use permit – a specialized act targeting an individual land use

– is a proper means for implementing LGEEPA Article 112, paragraph II,

which requires that the general criteria for the protection of air quality be

applied in defining, in the rural development plans, the areas where polluting industries may be sited – a generalized act not targeting individual uses. There is no interpretation of this question by the federal courts.

1.4 Assertions regarding air pollution

The third matter to which this factual record refers is the effective

enforcement of NOM-022, which establishes the ambient air SO2 standard (límites máximos permisibles—LMP) for the protection of public

health. The submission asserts that in the first amendment to its OP

Molymex was authorized to exceed those limits. Mexico asserts that the

standard set in NOM-022 and the stack emissions limits established in

the OP are separate issues, and that Molymex has not exceeded the

applicable standard.

On 7 February 1995, one month after operations resumed at the

roaster, several Cumpas residents filed a complaint about the emissions

of the Molymex plant. The Office of the Federal Attorney for Environmental Protection (Procuraduría Federal de Protección al Ambiente—

Profepa) conducted an inspection visit to Molymex in response to the

complaint and, on April 3, ordered a temporary partial closing of the

roaster because Molymex had exceeded the raw material loads and particle emission limits. The company filed technical justifications with

Profepa on the damage that would be caused to the furnace if it were

totally shut down and agreed to take certain control measures. Profepa

lifted the closing order four days later. On 3 April 1996, the Ministry

of Environment, Natural Resources and Fisheries (Secretaría de Medio

Ambiente, Recursos Naturales y Pesca—Semarnap) approved a second

amendment to the OP, establishing a 6-hour average SO2 LMP of 650

parts per million by volume (ppmv) as of 1 October 1997 (instead of

10 FACTUAL RECORD: MOLYMEX II SUBMISSION
1 May 2005). The authority amended the Molymex OP again on 30 May

1996, 17 June 1997, and 29 November 2000. As a result of these amendments, the compliance deadline for SO2 stack emissions was extended to

31 December 2001, while the limit was maintained at 650 ppmv. Prior to

that date, the roasting process operated with authorization under various OPs but it was not subject to any mandatory SO2 emission limits.

The NOM–022 health protection LMP for the ambient concentration of SO2 as an air pollutant (maximum 24-hour average of 0.13 ppm)

have been in effect since Molymex began operations on 5 January 1995

and, in principle, served as a reference for determining the height

required for the Molymex stack, which was increased to 83 meters in

1997. In addition, since 17 June 1997, Molymex has been subject to the

maximum SO2 concentration levels set out in its contingency plan: alert

phase, 1-hour average of 0.600 ppm; alarm phase, 5-hour average of

0.400 ppm; and emergency phase, 24-hour average of 0.130 ppm.

Molymex measures SO2 concentrations in the roaster’s stack emissions by means of a continuous monitor that started operating in early

August 2001. The company is required to submit to the authority with its

annual operating report (cédula de operación) a quarterly record of its estimated and/or measured air pollutant emissions. The company must

report to Profepa any 6-hour average emission level exceeding the

650 ppmv LMP.

The information on stack SO2 concentrations requested for the

development of this factual record was presented in the form of graphs

of the 6-hour averages for every day in the months of January to September 2002. Stack monitoring data was not provided to the Secretariat. The

graphs show maximum 6-hour average SO2 concentrations slightly

lower than 400 ppmv (about 3.2 percent by volume) and indicate that the

SO2 stack emissions did not exceed the 6-hour LMP of 650 ppmv that has

been mandatory since 1 December 2001.

The Secretariat, through independent experts, analyzed the relationship between the stack LMP to which Molymex is subject and the

ambient air concentration limits in NOM-022 and its contingency plan.

The experts concluded that it is possible for the ambient SO2 concentration to exceed the NOM–022 standard even if the stack emissions do not

exceed the LMP of 650 ppmv because this limit is a 6-hour average. That

is, if the concentration at the stack is several times greater than 650 ppmv

for short periods (e.g., one or two hours) followed by low concentrations

for longer periods, the 1-hour ground-level concentration may exceed

0.600 ppm and the 24-hour average ground-level concentration may

EXECUTIVE SUMMARY 11
exceed 0.13 ppm even if the LMP were not exceeded at the stack. Given

that the Secretariat was not provided with stack monitoring data but

only graphs of 6-hour averages, the factual record does not present

information as to whether, in fact, such peak concentrations occur at

Molymex, and if so, their actual values or frequency.

In regard to ambient air concentrations, Molymex has been operating a continuous ambient SO2 monitoring system in the vicinity of the

plant since October 1994. It submits to the authority a monthly report of

the SO2 concentrations recorded at each monitoring station. Mexico

asserts that at the monitoring stations installed by Molymex, there was

no day between 1994 and 2000 when the 24-hour SO2 limit of 0.13 ppm

was exceeded, and that the annual arithmetic mean SO2 concentration

did not exceed 0.03 ppm during that period. Molymex’s monitoring

reports from 1994 to date also indicate that the ambient SO2 concentration did not exceed the NOM-022 standard.

The measurement range of the analyzers that carry out this ambient air monitoring is 0–0.500 ppm, and values greater than 0.500 ppm are

recorded as if equal to that value. Consequently, the perimeter monitoring network cannot detect 1-hour average ambient air SO2 concentrations of 0.6 ppm that would trigger the alert phase and the beginning of

the response phases in the Molymex contingency plan of 17 June 1997.

Therefore, the values averaged to determine whether the NOM–022

24-hour LMP of 0.13 ppm is exceeded are never greater than 0.500 ppm.

The Secretariat, through independent experts, also analyzed the

data contained in the monitoring tables. The experts concluded that the

monthly reports of continuous SO2 monitoring in the vicinity of the

Molymex plant do not in fact demonstrate conclusively that the ambient

air SO2 standards of NOM–022 were never exceeded. The data were collected with analyzers of insufficient detection range, there were blank

records and negative data, and there is no substitute data calculation

algorithm to make up for the deficiencies in the data.

1.5 Additional Coprodemac concerns regarding Molymex

The people that were concerned about Molymex’s operations in

Cumpas formed the Committee for the Defense of the Cumpas Environment (Comité Prodefensa de Medio Ambiente de Cumpas—Coprodemac).

On 23 May 1996, Molymex and Coprodemac signed a set of agreements

and commitments to respond to the concerns raised by Coprodemac in

regard to Molymex’s activities in Cumpas. However, Molymex’s relations with Coprodemac and some community members began to deteri12 FACTUAL RECORD: MOLYMEX II SUBMISSION
orate in the second half of 1997. Since 1998, Coprodemac and other organizations have made demands to various authorities and in different

forums that Molymex be closed, and have held a series of protest demonstrations against Molymex. Relations between Molymex and

Coprodemac and these organizations remain tense. Other Cumpas residents support the presence of Molymex because it is a source of employment and makes an annual contribution of US $100,000 for improvement

of municipal infrastructure and other activities sponsored by Molymex.

Coprodemac and some Cumpas residents assert that Molymex has

harmed the health of people and animals and damaged the environment

in the vicinity of the plant. According to Coprodemac, Molymex uses

the plant’s metal stack at night to avoid controlling its SO2 emissions.

The information gathered for this factual record was conflicting as to

whether Molymex produced the alleged night-time air emissions,

whether it is still producing them, or whether any health effects ensued

from them as alleged, since none of the conflicting information received

by the Secretariat is conclusive.

In the face of the concerns raised by the community about the

effects of Molymex’s emissions on the environment and health, the

Sonora state government arranged for three studies to be carried out

through the Sonora Ministry of Health in coordination with the

Pan American Health Organization (PAHO) and the Universidad de

Sonora: monitoring of ambient sulfur dioxide and epidemiological

risk assessment; determination of molybdenum in Cumpas soil, and

determination of blood lead levels in preschoolers, schoolchildren, and

adults. None of these studies confirmed the alleged negative health and

environmental effects, although all of them recommended additional

research and continuous monitoring.

The Sonora State Ministry of Public Health determined that the

company poses a low risk in a report issued on 17 December 2002, based

on an environmental and occupational risk assessment Molymex carried out under NOM-048-SSA1-1993. Molymex has obtained various

certificates and awards related to environmental protection, including a

Clean Industry Certificate issued by Profepa and ISO-14001 certification

for its environmental management system, both in 2002. Since 1994,

Molymex has invested US $40 million in the Cumpas plant. The company estimates that 55 percent of this amount was devoted to environmental aspects: a scrubber, a liquid stream treatment plant, four air

quality monitors, high-tech process dust control equipment and a sulfuric acid plant.

EXECUTIVE SUMMARY 13
2. Summary of the Submission and the Response

The submission asserts that the Mexican authorities are failing to

effectively enforce the environmental law, more specifically the following provisions of the General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al

Ambiente—LGEEPA), with respect to the Molymex plant in Cumpas,

Sonora:

(i) Articles 28 paragraph III, 29 paragraphs IV and VI, and 32, by

allowing the Molymex plant to operate without an environmental impact authorization, despite the differences in the

operations it carried out before 1991 and those after 1994;2

(ii) Article 98 paragraph I, by tolerating a land use by the

Molymex plant that is incompatible with that for which that

land is naturally disposed;3

(iii) Article 99 paragraph III, because of the failure to issue an

urban development plan for Cumpas, defining the allowed

and prohibited land uses;4

(iv) Article 112 paragraph II, by failing to define the zones in

which polluting facilities may be sited;5

(v) Article 153 paragraph VI, since waste generated during the

molybdenum roasting process (allegedly imported into the

country under the temporary import regime) was allowed to

remain in Mexico,6 and

(vi) Article 153 paragraph VII, by granting Molymex authorizations to import allegedly hazardous materials without providing a guarantee to comply with the applicable law and

remedy any harm caused on national territory.7

The Submitters further argue that the environmental authorities

authorized Molymex to infringe the ambient air SO2 standards established by NOM-022 for the protection of public health.8 They assert that

14 FACTUAL RECORD: MOLYMEX II SUBMISSION

2. Submission, at 5.

3. Submission, at 8.

4. Submission, at 9.

5. Submission, at 10.

6. Submission, at 11.

7. Submission, at 12.

8. Submission, at 5.
the residents of Cumpas suffer health risks and that there are various

negative environmental impacts in the area, allegedly caused by molybdenum trioxide and sulfur dioxide emitted by Molymex.

The Secretariat, after reviewing the submission, and for the reasons set forth in the Determination of 19 October 2000, requested a

response from Mexico regarding only the alleged failures to enforce

LGEEPA Articles 28 paragraph III, 29 paragraphs IV and VI, 32, and 112,

as well as NOM-022.9 The Secretariat received Mexico’s response to the

submission on 18 January 2001 (the “Response”).

According to the Submitters, residents of Cumpas have complained repeatedly since 1994 about pollution from Molymex.10 The

Submitters assert that “the molybdenum concentrate roaster operated

by the company Molymex, S.A. de C.V. in Cumpas, Sonora, has been carrying out its activities in violation of various provisions of environmental law. In doing so it has caused harm to human health and habitat by

managing hazardous materials and wastes without any controls, and by

emitting toxic substances such as sulfur dioxide, molybdenum sulfide

and molybdenum trioxide into the atmosphere.”11

The Submitters argue that Molymex “has been carrying out its

activities at the town of Cumpas, Sonora without an environmental

impact authorization.”12 They contend that the authority should have

required Molymex to file an environmental impact statement (EIS)

when that obligation was incorporated into Mexican law in 198213 and,

SUMMARY OF THE SUBMISSION AND THE RESPONSE 15

9. In its determination of 19 October 2000, the Secretariat concluded that with respect

to two of the Submission’s assertions, it is unclear that there exists a relationship

between the facts adduced by the Submission and an applicable provision of environmental law. Regarding the alleged failure to effectively enforce the environmental law by tolerating a land use by the Molymex plant that is incompatible with

the land’s natural disposition, the information provided does not indicate that

Molymex’s activities are legally incompatible with the natural disposition of the

land it occupies. Regarding the assertion that the materials imported by Molymex

are hazardous materials or wastes under applicable law and that they were

imported under the temporary import regime, this too cannot be ascertained from

the information provided. Therefore, regarding the alleged failures to effectively

enforce LGEEPA Articles 98, paragraph I and 153, paragraphs VI–VII, the Secretariat did not request a response from Mexico. SEM-00-005 (Molymex II) Secretariat

Determination under Articles 14(1) and 14(2) (19 October 2000).

10. Submission, at 3.

11. Submission, at 14.

12. Submission, at 6.

13. As analyzed in greater depth in section 5.4.1 of this factual record, the EIA procedure first appears in the Federal Environmental Protection Law (Ley Federal

de Protección al Ambiente—LFPA) of 1982 and, in more detailed fashion, in the

LGEEPA of 1988.
especially, when the company resumed its furnace operations in 1994

after having been idle since 1991.14

In its response, Mexico puts forward three arguments to counter

the assertion that it failed to enforce the environmental law with respect

to Molymex: first, that environmental impact assessment (EIA) did not

apply because it was not required when Molymex started operating; second, that the EIA is a purely preventive procedure; third, that the relevant environmental impact provisions were in fact enforced in regard to

Molymex, since an assessment was done for the expansion project of

1998 and the authorization for it was granted.

Mexico argues that when Molymex began operating in 1979, “there

was no obligation in Mexican law to obtain prior environmental impact

authorization to carry out a project,” and for this reason the requirement

was not applied to the company.15 Mexico maintains – based on the first

paragraph of Article 14 of the Constitution, which states that “no law

may be given retroactive effect with prejudice to any person” – that it

cannot legally require Molymex to submit an EIS, because the law did

not contemplate that requirement when the company began its operations. In support of its assertion, Mexico cites a 1921 decision of the Mexican Supreme Court (Suprema Corte de Justicia de la Nación—SCJN) that

confirms that constitutional prohibition.16

Anticipating this argument, the Submitters contend that the retroactive enforcement of a law is valid in some cases, and cite two 1924 decisions in which the Supreme Court ruled that a court decision may be

given retroactive effect where public or social interest so dictates.17 Mexico, in its response, relies only on the 1921 Supreme Court decision and

does not refer to this argument of the Submitters.

The Submitters assert that until 1990 the Molymex plant operated

with ore of 92 percent purity from the Cumobabi mine, which closed in

1991. According to the submission, Molymex resumed its operations in

1994 using a different material, that is a waste byproduct of the copper

smelting process containing 30 percent impurities, including arsenic,

cadmium, mercury, lead and selenium (in quantities not indicated). The

submission also asserts that Molymex operated a seven-hearth roaster

until 1991 but that when it resumed its operations in 1994, the furnace

had three more hearths. Based on these facts, the Submitters assert that

16 FACTUAL RECORD: MOLYMEX II SUBMISSION

14. Submission, at 7.

15. Response, at 3.

16. Response, at 4.

17. Submission, at 7.
the Molymex plant’s activity changed and, consequently, the company

should have been required to file an EIS as prescribed by LGEEPA Articles 28 paragraph III, 29 paragraphs IV and VI, and 32.18

Mexico’s second argument states that “any claim that environmental impact assessment should be applied to existing industrial activities

that neither required an assessment at the time they began, nor were

obligated to obtain any such authorization, is contrary to the preventive

nature of this instrument.” Mexico argues that EIA “is of an exclusively preventive nature, and thus its precepts and provisions are prior,

not subsequent, to works and activities.” It further states that “at all

times, Semarnat [Ministry of the Environment and Natural Resources

(Secretaría de Medio Ambiente y Recursos Naturales)] has the power to control all the works and activities within its jurisdiction that may or do generate environmental impacts by making use of such instruments as

licenses, permits, standards, economic instruments, registers, etc., above

and beyond the environmental impact assessment procedure.”19

Lastly on the EIA matter, Mexico states that the 1998 Molymex

expansion project did in fact undergo the environmental impact procedure, because at that time the LGEEPA required it.20

The Submitters further contend that the Municipality of Cumpas,

in violation of LGEEPA Article 112 paragraph II, did not issue a municipal urban development plan and thus failed to define the zones in which

polluting facilities may be sited.21 The submission contains contradictory statements on this point. On the one hand, the Submitters argue that

the Municipality of Cumpas “did not issue the municipal urban development plan” and that therefore, “it did not define the zones in which

polluting facilities may be sited.” On the other hand, they state that the

Cumpas urban development masterplan establishes a zone “devoted to

industrial use” and that Molymex is located outside of that zone.22

Mexico asserts that it did fulfill its responsibility to define a zone in

which polluting facilities may be sited, as prescribed by LGEEPA Article

112 paragraph II. Mexico states in its response that “within the scope of

its jurisdiction and by means of Municipal Council Resolution (Acta

de Cabildo) Nineteen, Special Session Eleven of 4 September 1998, the

Mayor (Presidente) and Municipal Secretary of Cumpas, Sonora, signed

SUMMARY OF THE SUBMISSION AND THE RESPONSE 17

18. Submission, at 3–8.

19. Response, at 5.

20. Ibid.

21. Submission, at 11.

22. Submission, at 11 and Appendix IV.
document no. 854-98 of 7 September 1998 whereby an industrial land use

permit was issued to the Company, which implies that the zone in which

the Company was permitted to site its facility was defined through that

permit.”23

Finally, the Submitters assert that Mexico is failing to effectively

enforce NOM-022, which establishes the maximum sulfur dioxide (SO2)

concentration in ambient air as a criterion for the protection of public

health. The Submitters transcribe various portions of a document produced by the Sonora Office (B39) of Profepa in April 1995 which indicate

that the environmental authority of Mexico “authorized the company to

infringe Mexican Official Standard NOM-022-SSA1/1993” by granting

the company extensions of the deadline for compliance with the SO2

emission limits set out in its operating permit (OP).24

In this regard, Mexico asserts that “the company has not violated

the ambient air SO2 standard established by [NOM-022-SSAI/1993]”

and that at the Cumpas monitoring station, the maximum 24-hour SO2

concentration of 0.13 parts per million (ppm) was not exceeded between

1995 and 2000. According to the Response, the annual arithmetic mean

SO2 standard of 0.03 ppm was not exceeded or reached either during that

period.25

Mexico concludes that “the evidence and information provided

and cited in this response to the Secretariat indicate that there is no failure to effectively enforce its environmental law.”26

3. Scope of the Factual Record

After reviewing the Submission in light of the Party’s response, the

Secretariat notified the Council on 20 December 2001 that some of the

assertions contained in the Submission warranted the development of a

factual record; specifically, those relating to the enforcement of LGEEPA

Articles 28 paragraph III, 29 paragraphs IV and VI, 32, and 112, as well as

those concerning NOM-022.

Further to the Secretariat’s recommendation of 20 December 2001,

the Council of the CEC instructed the Secretariat on 17 May 2002 by

means of Council Resolution 02-03 (reproduced in its entirety in Appendix 1 of this factual record),

18 FACTUAL RECORD: MOLYMEX II SUBMISSION

23. Response, at 11.

24. Submission, at 4–5.

25. Response, at 16.

26. Response, at 17.
to prepare a factual record in accordance with Article 15 of the NAAEC

and the Guidelines for Submissions on Enforcement Matters under Articles 14

and 15 of the North American Agreement on Environmental Cooperation for the

assertions set forth in Submission SEM-00-005 that Mexico is failing to

effectively enforce Articles 28 paragraph III, 29 paragraphs IV and VI, 32

and 112 of the General Law on Ecological Balance and Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente—LGEEPA); and the

Mexican Official Standard NOM-022-SSA1/1993 with respect to operation of the Molybdenum Trioxide production facility by Molymex S.A. de

C. V., located in the Municipality of Cumpas in the Mexican State of

Sonora, Mexico.

Consequently, this factual record presents information relevant to

the facts relating to:

i) the alleged violations of LGEEPA Articles 28 (par. III), 29

(par. IV and VI) and 32 as well as NOM-022 by Molymex; and

the alleged failure by the Municipality of Cumpas to enforce

LGEEPA Article 112;

ii) the enforcement of these provisions by Mexico in the case of

Molymex, and

iii) the effectiveness of that enforcement.

4. The Environmental Law in Question

This factual record refers to the assertion that Mexico is failing to

effectively enforce the LGEEPA and NOM-022 as they apply to the activities of Molymex in the Municipality of Cumpas, Sonora, Mexico. This

section cites verbatim the relevant provisions of law for this factual

record, using the text that is applicable to the matters in question. The

Submitters invoked the language of LGEEPA Articles 28, 29 and 32 that

was in force prior to the reforms of 13 December 1996. Those previous

articles were incorporated into the current text of Articles 28 and 30 with

only slight modifications. For the rest of the articles cited, the text was

not altered by the reforms.

In its determination of 6 April 2000, the Secretariat recommended

the development of a factual record only with respect to LGEEPA Articles 28, 29 paragraphs IV and VI; 32, and 112, as well as NOM-022. These

LGEEPA provisions refer to obligations with regard to environmental

impact and to air pollution control criteria in local development plans of

the Mexican states.

THE ENVIRONMENTAL LAW IN QUESTION 19
LGEEPA, Article 28.27 The execution of public or private works or activities that may cause ecological imbalance, or exceed the limits and conditions set out in the environmental protection regulations and technical

standards enacted by the Federation, requires the prior authorization of

the federal government, acting through the Ministry, the states, or the

municipalities, according to the jurisdictions established by this Law, and

all such works or activities shall comply with any requirements imposed

upon them following the assessment of the potential environmental

impact, without prejudice to any other authorizations within the purview

of the competent authorities.

For the assessment of environmental impact caused by works or activities

whose object is the exploitation of natural resources, the Ministry shall

require the interested parties to include, in the corresponding environmental impact statement, a description of the possible effects of those

works or activities on the ecosystem in question, considering all the elements and components involved and not only the resources to be

exploited.

LGEEPA, Article 29.28 The Federal Government, acting by the Ministry,

shall assess the environmental impact contemplated in Article 28 hereof,

particularly with regard to the following activities:

[...] IV.- Exploration, extraction, processing and refining of mineral and

non-mineral substances, reserved to the Federation;

LGEEPA, Article 32.29 In order to obtain the authorization contemplated

in Article 28 hereof, the interested parties shall file an environmental

20 FACTUAL RECORD: MOLYMEX II SUBMISSION

27. Following the reform of 1996, Article 28 reads as follows:

LGEEPA, Article 28. Environmental impact assessment is the procedure whereby

the Ministry establishes the conditions governing the execution of those works and

activities that could cause ecological imbalance or exceed the limits and conditions

established in the applicable provisions for the protection of the environment and

the preservation and restoration of ecosystems, for the purpose of preventing or

minimizing the negative effects of such works and activities on the environment. To

that end, in the cases determined by the Regulation issued for such purpose, anyone

seeking to carry out any of the following works or activities shall require prior environmental impact authorization from the Ministry:

[...] III.- Exploration, exploitation and beneficiation of ore and substances reserved

to the Federation under the terms of the Mining Law (Ley Minera) and the Regulatory Law to Article 27 of the Constitution respecting Nuclear Matters (Ley Reglamentaria del Artículo 27 Constitucional en Materia Nuclear);

IV.- Hazardous waste treatment, containment and disposal facilities as well as

radioactive wastes; [...]

28. The reforms of 1996 incorporated this article nearly in its entirety into the current

Article 28 (see previous note).

29. Article 32, following the reforms of 1996, was incorporated almost verbatim into the

current Article 30, which provides as follows:

LGEEPA, Article 30.In order to obtain the authorization contemplated in Article 28

of this Law, the interested parties shall file with the Ministry an environmental
impact statement with the competent authority. As applicable, the statement shall be accompanied by a risk study of the project, its modifications,

or the planned activities, consisting in the technical preventive and corrective measures necessary to mitigate the adverse effects on ecological balance occurring during its execution, normal operation, and in case of

accident.

The Ministry shall establish a registry of the service providers performing

environmental impact studies and shall determine the technical requirements and procedures that shall be met by service providers in order to

obtain registration.

[...]

LGEEPA, Article 112. In respect of air pollution prevention and control,

the governments of the States, the Federal District, and the Municipalities,

according to the distribution of powers established by Articles 7, 8 and 9 of

this Law, as well as the relevant local laws:

[...] II.- Shall apply the general air quality criteria in the urban development plans under their jurisdiction, defining the zones in which polluting

facilities may be sited; [...]

Finally, NOM-022 provides that:

For the protection of the health of the susceptible population, the maximum 24-hour concentration of sulfur dioxide as an air pollutant shall not

exceed 0.13 ppm (341 g/m3) more than once a year and 0.03 ppm (79

g/m3) in annual arithmetic mean.

5. Summary of other Relevant Factual Information

5.1 Process Used to Gather Information

In June 2002, the Secretariat initiated the factual record development process. The Secretariat gathered information on Mexico’s initiatives and actions to enforce the environmental law in question with

respect to Molymex.

The Secretariat published an overall plan for the development of

the factual record (Appendix 2 of this factual record) and a description of

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 21

impact statement containing, at a minimum, a description of the possible effects on

the ecosystem or ecosystems that may be affected by the work or activity in question, considering the sum total of elements making up such ecosystems, as well as

the preventive, mitigation, and other measures necessary to prevent and minimize

the negative effects on the environment.
the scope of the relevant information being gathered (Appendix 3 of this

factual record). Pursuant to NAAEC Articles 15(4) and 21(1)(a), the Secretariat requested Mexico and 13 of its authorities to provide the relevant

information in their possession for the preparation of the factual record

(Appendix 4 of this factual record contains a list of the recipients of this

request and a description of the information requested). Information

was received from Mexico, including information from several Mexican

authorities, in response to the request. The other Mexican authorities

either did not respond, indicated that they did not possess information,

or stated that the matter is outside their jurisdiction. The Secretariat also

invited the other two NAAEC parties and the Joint Public Advisory

Committee (JPAC) to provide relevant information. The Secretariat

identified 8 persons or nongovernmental organizations that might possess relevant information, including the Submitters and Molymex, and

invited them to provide such information. Information was received

from the Submitters, the company, and 3 persons in response to that

request. (Appendix 5 of this factual record contains a list of the recipients.)

Appendix 6 contains a list of all the information gathered as a basis

for this factual record, including information produced by the Secretariat through independent experts.

NAAEC Article 15(5) provides that “[t]he Secretariat shall submit a

draft factual record to the Council. Any Party may provide comments on

the accuracy of the draft within 45 days thereafter.” Pursuant to Article

15(6), “[t]he Secretariat shall incorporate, as appropriate, any such comments in the final factual record and submit it to the Council.” The Secretariat submitted the draft factual record to the Council on 17 May 2004

and received comments from Mexico on 2 July 2004. Canada and the

United States did not comment on the draft factual record.

5.2 Background on the Company Molymex, S.A. de C.V.

The company Molymex, S.A. de C.V. was incorporated in Mexico

on 30 May 1979 as part of a consortium called Grupo Frisco. Its mission is

to operate in the mining and metallurgy industry and its primary activity is the processing of molybdenum sulfides into molybdenum oxides.

Originally, the Molymex facilities included a roaster, a copper sulfate plant, and a micronization plant.30 The Molymex furnace processed

22 FACTUAL RECORD: MOLYMEX II SUBMISSION

30. Information provided by Molymex, 15 November 2002 (IP-Molymex), Appendix 6,

at 3–4.
molybdenite extracted from the “San Judas” mine by the company

Cumobabi, S.A. de C.V. also owned by Group Frisco, until the mine

closed in 1991.31 On 30 June 1994, Grupo Frisco sold the roaster and

100 percent of Molymex shares to the Chilean consortium Molíbdenos y

Metales S.A. (Molymet).32 The plant’s authorized production of molybdenum oxide increased from 15 million pounds per year in 1994 to

40 million pounds per year as of the expansion authorized in 1999.33 The

plant currently has an installed capacity to produce 22 million pounds of

molybdenum oxide (a second furnace that had been authorized was not

installed34) and it also has a sulfuric acid plant with a production capacity of 23,000 tons/year.35

The industrial facility operated by Molymex is located at kilometer

29 of the Moctezuma-Nacozari federal highway in the Municipality

of Cumpas, Sonora,36 approximately 192 kilometers northeast of

Hermosillo and 171 kilometers south of Agua Prieta. The Municipality

of Cumpas is in a zone of ore deposits rich in molybdenum, copper,

silver and gold that have been exploited since colonial times.

Figure 1. Map showing location of Molymex

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 23

31. Information provided by the Municipality of Cumpas, 23 August 2002 (IP-MexAC), Appendix 1, at 2 and Appendix 2.

32. IP-Molymex, Appendix 6, at 4.

33. Submission, at 8 and IP-Molymex, at 8 and annex 2.

34. IP- Molymex, Appendix 7.

35. See Figure 1.

36. IP-Molymex, at 3.
The roasting carried out by Molymex is a pyrometallurgical process in which molybdenum disulfide is transformed into molybdenum

trioxide through oxidizing roasting. Molybdenum disulfide is roasted

with an excess of air (oxygen) to eliminate most of the sulfur and bring

the molybdenum to its highest oxidation state.37 Molybdenum oxides

have many uses. They are employed in the production of corrosionresistant steel alloys, as industrial catalysts, corrosion inhibitors, and

agents in chemical processes, as well as in the pigment, ceramic, crystal,

paint, fire-resistant resin, and agricultural nutrient industries.38 Currently, Molymex offers two products obtained from the roasting of

molybdenum concentrates: MoO3 Technical Grade, commonly used as

an alloy in the production of steel and for the production of ferromolybdenum; and MoO3 High Solubility, used in the production of catalysts

and molybdenum chemicals.39

Molymex states that since 1994 it has invested US $40 million in the

Cumpas plant.40 The company estimates that 55 percent of this amount

was allocated to environmental aspects, including a scrubber, a liquor

treatment plant, four air quality monitors, high-tech dust control

process equipment, and a sulfuric acid plant.41 This plant is designed

to work with the low SO2 concentrations derived from molybdenite

roasting to produce sulfuric acid (H2SO4). Sulfuric acid is used in the

production of phosphate fertilizers and phosphoric acid; in the chemical

industry it is used as a solvent, in sulfate formation, in electron-acceptor

chemical processes, and as an electrolyte; in mining, it is used in leaching.42Although sulfuric acid is not listed in its product catalog, Molymex

states that it also markets this product and has been producing it since

December 2001.43 Appendix 7 of this factual record contains a flow chart

of the process and two photographs of the plant provided by Molymex.

According to the Municipality of Cumpas, Molymex employs a

staff of approximately 120 and generates 200 additional indirect jobs.44

The company’s administrative headquarters are in Hermosillo, Sonora.

24 FACTUAL RECORD: MOLYMEX II SUBMISSION

37. IP-Molymex, at 10.

38. Vukasovich, M.S., 1990, cited in Appendix 3 of the information provided by the

Mining Development Branch (Dirección General de Fomento Minero) of the Sonora

state government on 5 September 2002 (IP-Mex-GS).

39. See <http://www.molymex.com.mx/catalogo.htm>.

40. IP-Molymex, at 27.

41. IP-Molymex, at 24.

42. Molymex pamphlet, March 2002.

43. Interview with Molymex personnel during Secretariat’s visit to the plant in

Cumpas, 8 October 2002.

44. IP-Mex-AC, Appendix 1, at 2.
Molymex has obtained various certificates and awards related to

environmental protection, including a Clean Industry Certificate issued

by Profepa and ISO 14001 certification for its environmental management system, both in 2002.45

5.3 Molymex Relations with the Community

On 7 February 1995, one month after the resumption of operations

of the roaster, several Cumpas residents filed a complaint about the

emissions from the Molymex plant. Profepa conducted an inspection

visit to Molymex in response to the complaint and, on 3 April, ordered a

temporary partial closing of the roaster because Molymex had exceeded

the raw material loads and particle emission limits. The company filed

technical justifications with Profepa on the damage that would be

caused to the furnace if it were totally shut down and agreed to take certain control measures. Profepa lifted the closing order four days later.46

On 3 April 1996, the Ministry of Environment, Natural Resources and

Fisheries (Secretaría de Medio Ambiente, Recursos Naturales y Pesca—

Semarnap) approved an amendment to the OP, requiring the plant not

to exceed a 6-hour average SO2 emission limit of 650 parts per million by

volume (ppmv) as of 1 October 1997 (instead of 1 May 2005).47

The persons concerned by Molymex’s operations in Cumpas

formed the Comité Prodefensa de Medio Ambiente de Cumpas

(Coprodemac). On 23 May 1996, Molymex and Coprodemac signed a set

of agreements and commitments to respond to the concerns raised by

Coprodemac in regard to Molymex’s activities in Cumpas. The commitments relating to control and monitoring of the plant’s emissions

included: reducing the furnace load by 30 percent, raising the stack to

a sufficient height to provide for adequate dispersion of pollutants,

installing emission control equipment, relocating the monitoring stations and providing a mobile monitoring station.48 Molymex also committed to providing financial support to a fund created to support

community and microindustrial development in Cumpas. From its

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 25

45. IP-Molymex, at 24.

46. IP-Mex-Profepa2, at 3 and Appendix 12.

47. Response, Appendix 7 (DS-SMA-UNE-LF-500).

48. Statement of agreements and commitments entered into at the conciliation meeting

held in Cumpas, Sonora between the company Molymex and the Comité de

Protección del Medio Ambiente de Cumpas with the participation of federal, state

and municipal authorities, all signatories thereto, held at 10:35 a.m. on 23 May

1996. Submission, Appendix 6.
inception, both Coprodemac and Molymex participated in the management of this fund, which is described by Molymex as follows:

The fund was created with the agreement of federal, state, and municipal

(Cumpas) authorities, Molymex employees, Coprodemac and Molymex

itself, with the object of channeling economic resources to the Cumpas

community. Since 1996, this has translated into an annual contribution of

US $100,000.

The result of these contributions by Molymex has been as follows: school

improvements, street paving, reforestation, purchase of machinery, repair

of the Cumpas-Teonadepa bridge, donation of an ambulance for the Red

Cross, donation of a garbage truck to the Municipality of Cumpas, renovation of the two Cumpas public squares, teachers’ salaries at the DIF [family

development program] school, rehabilitation of bathrooms in the

Teonadepa primary school, purchase of a truck for the Instituto del

Deporte [Sports Institute], donation of a new backhoe, donation of a paving machine, and other items.49

On 23 May 1997, Coprodemac informed Semarnap that Molymex

had fulfilled all of its agreements and commitments of 23 May 1996 and

acknowledged that it had “cooperated notably in the sustainable development of the community.”50

However, relations between Molymex, Coprodemac and some

community members began to deteriorate in the second half of 1997.

During 1998, Coprodemac held a series of demonstrations and made

demands to various authorities, in various forums, that Molymex be

closed.51 Three civil society organizations from Hermosillo participated

in these actions as well: Ciudadanos por el Cambio Democrático (CCD),

Alianza Cívica (AC) and Academia Sonorense de Derechos Humanos

(ASDH).

Molymex’s relations with Coprodemac and these organizations

remain tense. The aforementioned organizations criticize Molymex as

being a foreign (Chilean) company that allegedly has no interest in the

welfare of Cumpas residents, but only in producing as much as possible

with minimal investment. These organizations assert that the authorities

punish the people of Cumpas for minor infractions while they “protect

26 FACTUAL RECORD: MOLYMEX II SUBMISSION

49. IP-Molymex, at 23–24.

50. IP-Molymex, Appendix 20.

51. Press clippings provided by Antonio Heras Durán; information provided by

Ciudadanos por el Cambio Democrático for the development of this factual record,

8 October 2002 (IP-CCD); and direct observation by the Secretariat on its visit of 8

October 2002.
the Chileans.” They state that the company has “divided the people”

and that “that is not development.”52 Below are described several of the

main points of disagreement and the relevant facts gathered.

On 17 June 1997, Semarnap postponed Molymex’s deadline for

compliance with the SO2 emission limit from October 1997 to August

2001. In September of that year, Coprodemac filed a citizen complaint

with Profepa against Molymex for alleged hazardous waste-related

violations. The complaint was resolved on 22 November 1999, when

Profepa determined that the wastes in question were not hazardous

waste.53

In early 1998, the municipal council decided to exclude non-councilors (including Coprodemac and Molymex representatives) from the

administration of the Cumpas Development Fund.54

During the period from 22 to 24 April 1998, Molymex’s scrubber

was out of operation (apparently due to a power outage) and its emissions increased. Coprodemac accused Molymex of defaulting on some

of its commitments of 23 May 1996 and called for its permanent closing

by means of various documents and demonstrations in public squares

and in front of the plant. In October 1998, Molymex filed an environmental impact authorization request for an expansion project55 and Coprodemac opposed this project.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 27

52. IP-CCD, presentation; interviews with residents during Secretariat’s visit to

Cumpas, 8 October 2002; Pollution and International Capital in the Sonora Desert: The

Molymex Plant at Cumpas, IP-CCD, “United States Civic Organizations” section; letters from Antonio Heras Durán to the CEC Secretariat (30 October 2002), the Director of Environmental Complaints of Profepa (26 September 2002), the President of

the National Institute of Ecology (4 October 1998), IP-CCD, CDE section; statements of several Cumpas residents at the meeting of 28 April 1998 between various

authorities and Coprodemac, and other videotaped demonstrations provided by

Antonio Heras Durán to the Secretariat (videos 1 and 3).

53. Technical opinion by Profepa on citizen complaint, 22 November 1999. IP-CCD,

section 3.

54. In early 1998, the Municipal Council resolved that non-councilors would no longer

be allowed to participate in managing the fund, with the justification that only officials elected directly by the citizens can legally represent the community. Oficio

437/98 of the Municipal Council of Cumpas to Armando Gallegos Quintero of

Coprodemac, 6 May 1998. IP-CCD, CDE section.

55. Letter of 28 October 1998 to the Mining Development Branch of the Ministry of

Economic Development and Productivity of the Sonora state government to

Coprodemac, IP-Molymex, Appendix 20; meeting of 28 April 1998 between various authorities and Coprodemac, videotaped, provided by Antonio Heras Durán

to the Secretariat; interview with Molymex personnel during Secretariat visit at the

Cumpas plant, 8 October 2002.
On 4 October 1998, Coprodemac sent a letter to the President of

the National Institute of Ecology (Instituto Nacional de Ecología—INE)

requesting that authorization of the project be denied. Coprodemac contended in its letter that the company was not complying with environmental law or with its commitments to reduce its environmental impact.

The organization further asserted that the company lied in its emission

monitoring reports and as to the benefits and employment it brought to

the region. Coprodemac warned that “if the Chileans obtain the authorization, we are not going to let them do it [sic].”56

On 10 November 1999, Coprodemac, CCD, AC, and ASDH filed a

request for permanent closing of Molymex with the Sonora State Congress. The Congress’ Environment and Ecology Commission and its

Public Assistance and Health Commission found the request to be

ungrounded. The commissions concluded that based on the technical

reports by the competent authorities and in the absence of conclusive

proof to the contrary, the company was in compliance with its environmental obligations and was not affecting the health of the population.

The commissions’ report did recommend that emissions monitoring

continue and that health studies be conducted in the area.57

On 23 January 2000, Coprodemac sent a letter to the Governor of

Sonora calling for the permanent closing and relocation of the Molymex

plant or the relocation of and payment of damages for property loss and

emotional distress allegedly caused by Molymex to the 307 families who

signed the letter (accompanied by a list of the properties in question and

the amount to be paid for them).58 The Secretariat is not aware of any

response given to this request.

During the Secretariat’s visit to Cumpas on 8 October 2002, several

members of the aforementioned civic organizations made presentations

about Molymex and provided five videotapes. The first video presents

images taken on 8 April 1998 of the countryside in the vicinity of

Molymex, the plant’s stack, and the reservoirs used as drinking troughs

by the animals of the ejido dwellers in the area. The images show two

horses lying down, and subsequently two people loading them into a

truck. The animals appear to have difficulty walking and the narrators

assert that they are intoxicated because they were approximately

350 meters from the plant and drank contaminated water. The narrator

mentions that the animals were taken to the Public Prosecutor’s Office in

28 FACTUAL RECORD: MOLYMEX II SUBMISSION

56. Letter from the President of Coprodemac, Antonio Gallego Quintero, to the President of the National Institute of Ecology (4 October 1998), IP-CCD.

57. IP-CCD, State Congress section.

58. Information provided by Antonio Heras Durán, 8 October 2002, Appendix 8.
order to attest to these facts, and they are later observed being unloaded

into a corral. In response to the narrator’s question as to why the animals

are sick, a woman who appears to be the owner of the animals asserts

that they appear to have been poisoned by the fodder contaminated by

Molymex. The same person asserts that one day, while giving water to

her cows near Molymex, “a dense cloud of smoke came from the plant

and she developed a sort of strong rash.” The tape continues with

images of a demonstration against Molymex in front of the plant on 27

April 1998. Both pro- and anti-Molymex demonstrators are shown in the

village of Cumpas as well as a meeting to which Coprodemac invited

several authorities to demand the closing of Molymex.

The second video presents images of Molymex stack emissions

taken 25–27 April 1998 which, according to the narrator, show that the

plant emits polluting gases and acid mist through the metal stack, which

exceed the applicable limits. This video also presents images taken 2–7

and 9–11 May 1998 of the stack and of waste piled up near the plant.

The third video presents images of a demonstration in front of

Molymex on 18–19 December 1999. In this tape, then president of

Coprodemac Armando Gallegos Quintero asserts that “there were five

deaths that week, they just fell dead, and there are Profepa documents to

the effect that the [pollutant emissions] are causing deaths.” The video

shows the police detention of the leaders of the organizations heading

the demonstration. This is followed by images from 13, 20 and 30 July

2000, of the Molymex expansion works; stack emissions from 2 July

2000; the demonstration on Environment Day in June 2001; and a demonstration on 20 December 1999 in support of the organizers detained

the previous day.

The fourth video presents images of the Molymex plant and vicinity as well as demonstrations against Molymex in Cumpas on 22 December 2001.

The fifth and last video presents images from 2 February 2002 of

the Molymex stack. The narrator asserts that these images show that the

plant emits pollutants and acid mist and that it is not in compliance with

the applicable standards.

The information gathered by the Secretariat indicates that several

residents of the Municipality of Cumpas support the presence of

Molymex, considering it to be an important source of employment for

Cumpas and a source of funding for improvement of municipal infraSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 29
structure.59 In addition to the annual contribution it makes to the municipal development fund, Molymex sponsors several community events

in order to improve its relations with Cumpas residents. For example,

since 1997 Molymex has organized annually the “Cumpas Environment

Week.”60

5.4 Environmental Impact Law Enforcement with respect to

Molymex

The submission asserts that Mexico is failing to effectively enforce

its environmental impact law with respect to Molymex. Mexican environmental law has been amended several times since the Molymex furnace began operating in 1979. The following sections of this factual

record provide information regarding: 1) the aspects of the various laws

in effect since Molymex began operations that are most relevant to environmental impact assessment of potential air pollution sources; 2) the

enforcement of these laws with respect to Molymex; and 3) outstanding

legal issues arising from the submission and the response.61

5.4.1 Environmental Impact Assessment in Mexican Law

The Federal Environmental Pollution Prevention and Control Law

(Ley Federal para Prevenir y Controlar la Contaminación Ambiental),62 in

force from 1971 to 1982, did not contemplate the EIA process. Concerning air pollution prevention and control, the law prohibited “the discharge of pollutants that alter the atmosphere to the detriment of human

health and life, flora, fauna and, in general, the resources or property of

the state or private persons” and subjected these discharges to standards

specified by the corresponding regulations.63 The Regulation to Prevent

30 FACTUAL RECORD: MOLYMEX II SUBMISSION

59. IP-Molymex, Appendix 22; interviews with residents during Secretariat’s visit to

Cumpas, 8 October 2002; and support for Molymex displayed at different rallies

recorded in the videotapes provided by Antonio Heras.

60. IP-Molymex, at 23-24 and Appendices 12, 19 and 22.

61. Council Resolution 02-03 provides that the Secretariat shall “consider, in developing the factual record, whether Mexico is ‘failing to effectively enforce its environmental law’ since the entry into force of the NAAEC on January 1, 1994. In

considering such an alleged failure to effectively enforce, relevant facts that existed

prior to January 1, 1994, may be included in the factual record.”

62. Published in the DOF on 23 March 1971. This law was repealed on 11 January 1982

with the publication of the Federal Environmental Protection Law (Ley Federal de

Protección al Ambiente—LFPA).

63. Article 10 of the Federal Environmental Pollution Prevention and Control Law: “It

is prohibited, without observing the applicable standards, to expel or discharge

pollutants that alter the atmosphere to the detriment of human health and life,

flora, fauna and, in general, the resources or property of the State or private persons; therefore, the discharge of pollutants into the atmosphere, such as dust,
and Control Air Pollution Caused by Smoke and Dust Emissions

(Reglamento para la Prevención y Control de la Contaminación Atmosférica

Originada por la Emisión de Humos y Polvos)64 of 1971 required new industrial facilities to obtain a permit from the Ministry of Health and Assistance (Secretaría de Salubridad y Asistencia). Applicants had to attest that

the facility was in compliance with the pollution prevention and control

standards65 and file a study as follows:

Regulation of 1971, Article 8. In order to obtain the permit contemplated

in the preceding article, the applicant shall submit to the Ministry of

Health and Assistance a study indicating the following:

I.- location;

II.- raw materials, products, subproducts and wastes;

III.- description of the process;

IV.- distribution of machinery and equipment;

V.- quantity and nature of expected pollutants; and

VI.- pollution control equipment.

The Ministry of Health and Assistance shall grant or deny the corresponding permit within the 30 days following the filing of the application.

The Federal Environmental Protection Law (Ley Federal de

Protección al Ambiente—LFPA), published in January 1982, was the first

Mexican legal instrument to contemplate EIA. The law provided as

follows:

LFPA, Article 7. Public or private works projects that may produce contamination or environmental deterioration exceeding the foreseeable limits set out in the applicable regulations and standards shall be filed with

the Ministry of Health and Assistance in order for the latter to review them

and to determine whether to approve, modify, or reject them based on

information relating to an environmental impact statement, indicating the

preventive and corrective measures necessary to minimize environmental

harm during their construction or operation.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 31

vapors, smoke, gases, radioactive materials and others shall observe the standards

specified in the corresponding regulations, for which purpose accessories or equipment shall be installed or adapted as deemed necessary by the Executive – acting

through the relevant agencies in each case – for the purposes of this Law.”

64. Published 17 September 1971 and repealed 25 November 1988 upon the publication of the Regulation to the LGEEPA on Air Pollution Prevention and Control,

which is still in force.

65. Regulation of 1971, Article 7.
The LGEEPA came into force on 1 March 1988, repealing the

LFPA.66With some modifications, the new law also contemplated EIA:

LGEEPA, Article 28 (1988). The execution of public or private works or

activities that may cause ecological imbalance or exceed the limits and

conditions set forth in the regulations and environmental technical standards enacted by the Federation for environmental protection shall be

subject to the prior authorization of the Federal Government, acting by the

Ministry or the federated entities or municipalities, according to the jurisdictions prescribed by this Law, and to compliance with the requirements

imposed upon assessment of any potential environmental impact [...]

The LGEEPA was reformed in 1996. Some aspects of the ElA process were regulated in more detail and a public consultation process for

projects under assessment was included, among other provisions. Article 28 reads as follows:

LGEEPA, Article 28 (1996). Environmental impact assessment is the procedure whereby the Ministry establishes the conditions governing the execution of those works and activities that may cause ecological imbalance

or exceed the limits and conditions set forth in the applicable provisions

for the protection of the environment and the preservation and restoration

of ecosystems, with a view to preventing or minimizing the negative

effects of such works and activities on the environment. To that end, in the

cases determined by the Regulation issued for that purpose, anyone seeking to carry out any of the following works or activities shall require prior

environmental impact authorization from the Ministry:

... XIII.- Works or activities that correspond to matters under federal jurisdiction and that may cause grave and irreparable ecological imbalance or

harm to public health or ecosystems, or that may exceed the limits and

conditions set out in the legal provisions on preservation of ecological balance and environmental protection.

The application of the LGEEPA provisions was further elaborated

by means of the Regulation to the LGEEPA on Environmental Impact

(Reglamento de la LGEEPA en Materia de Impacto Ambiental—RIA), in force

as of 8 June 1988,67 and subsequently the Regulation to the LGEEPA on

Environmental Impact Assessment (Reglamento de la LGEEPA en Materia

de Evaluación del Impacto Ambiental—REIA), in force as of 29 June 2000.68

Furthermore, the institutional framework was modified several

times during this period. In January 1984, responsibility for enforcing

32 FACTUAL RECORD: MOLYMEX II SUBMISSION

66. By decree published in the DOF on 28 January 1988.

67. Published 7 June 1988 and repealed 30 May 2000.

68. Published in the DOF on 30 May 2000.
the LFPA was transferred from the Ministry of Health and Assistance to

the Ministry of Urban Development and Environment (Secretaría de

Desarrollo Urbano y Ecología). When the Ministry of Social Development

(Secretaría de Desarrollo Social—Sedesol) was created on 4 June 1992, the

power to conduct an EIA was transferred to this ministry. On 28 December 1994, Semarnap replaced Sedesol as the entity responsible for this

task. Finally, since 1 December 2000, Semarnat has been the competent

authority for EIA.

5.4.2 Application to Molymex

Molymex, S.A. de C.V. began operating on 30 May 1979.69 As discussed above, the law in force on that date did not provide for EIA. With

respect to the study required by the 1971 regulations, the information

gathered for the development of this factual record was insufficient to

determine whether, at that time, Molymex filed the study and obtained

the corresponding permit.

According to the Submitters, Molymex should have obtained an

environmental impact authorization because it suspended its operations in 1991 and, when it resumed roasting in 1995, did so using a larger

furnace and a different raw material. The information gathered for this

factual record sheds little light on the suspension of activities between

1991 and 1995 and on the differences between the activities carried out

and the raw material used before and after these dates. The environmental authority responsible for EIA asserts that it only learned of the

Molymex plant when the company filed the EIS for the Molymex expansion project in 1998, and therefore “they do not know whether it had

ceased operating and later resumed operating with different activities.”70 Nor did the information obtained by the Secretariat reveal the

type, volume, or quality of the company’s air emissions during that

period.

Until 1994, the Molymex facilities included a copper sulfate plant

and a micronization plant. These were decommissioned when Grupo

Frisco sold the Molymex shares and the roaster to Molymet.71 On 6 January 1995, Molymex began operating as a subsidiary of Molymet.72

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 33

69. IP-Molymex, at 8.

70. Information provided by the Environmental Impact and Risk Branch (Dirección

General de Impacto y Riesgo Ambiental—DGIRA) of Semarnat, 9 August 2002, oficio

no. UCAI/3580/02 (IP-Mex-DGIRA), p. 4.

71. IP-Molymex, Appendix 6, at 3–4.

72. IP-Mex-AC, Appendix 1, at 2, Appendix 2.
According to the Submitters, at the resumption of the plant’s operations in 1995, Molymex began to process molybdenum sulfide or

un-roasted molybdenum concentrate. They assert that these materials

are a byproduct of copper smelting carried out by domestic and foreign

companies and contain slightly more than 30 percent impurities, including arsenic, cadmium, mercury, lead, and selenium. This is in contrast to

the ore from the Cumobabi mine used initially as a raw material, which

allegedly had “approximately 92 percent purity.”73

According to the municipal authorities, the “San Judas” mine

operated by the Cumobabi company closed in 1991, and when Molymex

resumed operating in 1995, it was processing raw materials purchased

primarily from the companies Mexicana del Cobre S.A. de C.V. in

Nacozari, Sonora, and Kennecott in the United States.74 Neither Mexico

nor Molymex provided information requested by the Secretariat on the

differences between this raw material and the one processed previously.

The Submitters further assert that the company’s operations had

changed because Molymex operated a 7-hearth furnace until 1991 but at

the resumption of operations in 1995, the company operated a 10-hearth

furnace.75 On this point, Mexico asserts that the furnace has had 10

hearths since 1979, and therefore the activities resumed as of 1994

did not involve a change or expansion in the facilities.76 The first OP

obtained by Grupo Frisco on 11 February 1994 for the purpose of selling

the plant to Molymet in that year covered the production of molybdenum trioxide in a ten-hearth furnace for an annual production volume of

113.4 tons. The information received by the Secretariat does not help

to clarify whether the furnace operated by Grupo Frisco had 7 or 10

hearths, since the information did not include any permit or authorization corresponding to the period 1979–1994. On 27 May 1994 of that year,

this permit was amended to contemplate the 7,500 tons/year that

Molymex intended to produce as well as the maximum installed capacity of 15,000 tons/year, with the same 10-hearth furnace.77

Molymex did not file an EIS prior to resuming the plant’s activities

in 1995. Profepa conducted an inspection visit to Molymex on 30 May

1996 and instituted an administrative proceeding because the company

did not have documentary proof of a decision regarding an environmen34 FACTUAL RECORD: MOLYMEX II SUBMISSION

73. Submission, at 3.

74. Submission, at 12 and IP-Mex-AC, Appendix 1, at 2, Appendix 2.

75. Submission, at 8.

76. Information provided by Profepa, 27 August 2002 (IP-Mex-Profepa2), oficio no.

OAI/419/02, at 2.

77. IP-Molymex, Appendix 6, at 4.
tal impact authorization, allegedly in violation of RIA Article 5. The proceeding was resolved in favor of the company on 28 February 2000.78The

authority concluded:

In view of the foregoing statements and the evidence provided, the Facility has shown that the omission in question did not exist at the time of the

inspection visit, since:

a).- The activity subject to inspection carried out by MOLYMEX, S.A. de

C.V. began in 1979 at kilometer 2 of the Cumpas-Nacozari highway,

in the Municipality of Cumpas, State of Sonora.

b).- The activity being carried out is the transformation of molybdenum

sulfides into molybdenum oxides.

c).- From the commencement of operations until 30 June 1994, the activity

was carried out by Grupo Frisco, and from 30 June 1994 to date the

activity has been carried out by the Chilean company Molíbdenos y

Metales S.A. (MOLYMET) in accordance with a commercial transaction concluded on that date in which MOLYMEX, S.A. de C.V.

became wholly owned by another company without changing its

name, RFC [Federal Taxpayer Registration (Registro Federal de Contribuyentes)], or sector classification.

d).- As of 30 June 1994, MOLYMEX, S.A. de C.V. performed new maintenance [sic] on the equipment, and as of 6 January 1995, MOLYMEX,

S.A. de C.V. resumed production.

e).- From the operating permit issued by the Sonora state office (139)

of the Ministry of Social Development by means of oficio No.

DS-139-4-SPA-126 of 11 February 1994; the company document dated

3 March 1994 and filed with the Sonora state office of the Ministry of

Social Development, in which the company requests the modification

of some of the terms of the aforementioned permit; and oficio no.

SDS.139-4-SPA-1449 by the Sonora state office (139) of the Ministry of

Social Development dated 27 May 1994 whereby said authority gives

notice of the modifications and amendments to the operating permit,

it may be determined that the processing of molybdenum sulfides

into molybdenum oxides has been taking place since 1979 through

the operation of a ten-hearth roaster of a diameter of 5.4864 meters,

and therefore there has been no increase in the production capacity of

said furnace.

f).- In accordance with Article 28 of the General Law on Ecological Balance and Environmental Protection and Articles 5 and 6 of the ReguSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 35

78. IP-Molymex, at 8.
lation to the General Law on Ecological Balance and Environmental

Protection respecting Environmental Impact, the environmental

impact assessment procedure, and consequently the corresponding

authorization, is only applicable prior to the execution of a work or

activity, whereas in the case at hand, the transformation of molybdenum sulfides into molybdenum oxides through the operation of a

ten-hearth roaster of a diameter of 5.4864 meters began in 1979.

In light of the foregoing, this Authority sees fit to and does order the irregularity mentioned in this paragraph to be declared null and void, so that

no sanction whatsoever shall be applied.79

As mentioned above, Mexico maintains that an EIS was not

required in this case because requiring it would amount to retroactive

enforcement of the law and because EIA is a purely preventive measure.80

However, Transitory Article 5 of the RIA provides for environmental impact assessment of activities existing prior to the entry into

force of the obligation to conduct such an assessment in certain cases.81

Mexico asserts that it did not apply Transitory Article 5 to Molymex in

1995 for the following reasons:

[T]his article establishes as a requirement for the applicability of such an

assessment the fact that ecological imbalance is occurring or the limits and

conditions set out in the applicable environmental regulations and technical standards are being exceeded, which did not in fact occur in this

instance, such that there was no ecological imbalance and the allowable

limits set out in the standards were not exceeded. These conditions were

verified by the authorities by means of inspection visits to Molymex, from

which it was confirmed that there were no irregularities of the types mentioned above... That is to say, the obligation to require the environmental

impact statement only applied where the inspection visits determined the

existence of ecological imbalance or that the limits and conditions set

out in the applicable regulations and technical standards were being

exceeded, pursuant to Transitory Article 5.82

36 FACTUAL RECORD: MOLYMEX II SUBMISSION

79. IP-Molymex, Appendix 6, at 8.

80. Response, at 4.

81. RIA, Transitory Article 5: In cases of works or activities that are already being carried out at the time that this provision comes into force, where they are covered by

Article 5 of the Regulation and produce ecological imbalance or exceed the limits

and conditions set out in the environmental regulations and technical standards

issued for the protection of the environment, the Ministry may require the owner or

the persons carrying them out to file a general environmental impact statement

within a period not to exceed thirty working days from notice of that requirement.

82. IP-Mex-Profepa2, at 2–3.
The Secretariat did not obtain additional information on the

inspection visits referred to in the cited paragraph nor on the official

decision, if any, whereby the authority reached this conclusion.

On 9 October 1998, Molymex filed an EIS (general form) with the

Environmental Impact and Land Use Planning Branch of INE for the

“Molymex Expansion Project,” which involved increasing the molybdenum sulfide roasting capacity to 4,200 tons per month. Molymex also

filed a preliminary risk report.83 The preliminary risk report was found

insufficient and INE requested the company to file a risk analysis. This

was filed on 4 January 1999. INE authorized the expansion project

with various conditions on 29 January 1999 by means of oficio D.O.O.

DGOEIA-000445.84

The environmental impact authorization allows Molymex to

increase its production from 15 million to 40 million pounds of molybdenum trioxide annually, subject to certain conditions. Molymex obtained

authorization to expand its production facility by installing a second,

14-story furnace of a diameter of 6.5 meters, a second wet electrostatic

precipitator in the scrubber, two new electrostatic precipitators, a 40 m3

ammonia storage tank and a 43 m3 liquid petroleum gas storage tank. It

also obtained authorization to build new environmental control infrastructure consisting of a product cleaning plant, a molybdenum waste

treatment plant, a copper waste treatment plant, a sulfur dioxide treatment plant, and a sulfuric acid storage tank, as well as expansion of general infrastructure (parking, offices, warehouses, etc.).85

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 37

83. Response, at 5–6 and IP-Molymex, Appendix 2.

84. IP-Molymex, at 8 and Appendix 2.

85. The 50 conditions imposed on the project included:

• managing the waste in accordance with the LGEEPA, its hazardous waste regulation, and the applicable NOMs (conditions 7 and 43);

• cleaning up and restoring any soils or bodies of water that are contaminated

(condition 8);

• implementing preventive measures to guarantee the smooth and continuous

operation of the pollution control equipment, including the gas scrubbing

plant and the sulfur dioxide treatment plant (condition 22);

• managing as hazardous waste the sludges generated from the draining of the

various tanks during maintenance activities that have corrosive, reactive,

explosive, toxic, ignitable or biological/infectious characteristics (condition

27);

• implementing ammonia detection systems (condition 44);

• locating the liquid petroleum gas storage tank in such a manner as to avoid the

interaction of risks with other facilities (condition 46), and

• locating the ammonia storage tank where the negative impacts would be minimized in the event of a contingency (condition 46).
According to INE, the EIA for the 1998 expansion project included

the activities initiated in 1995. In this regard, Mexico asserts as follows:

According to the information in the Environmental Impact Statement

– General Form – that was filed, the expansion contemplated the same

activities being carried out up to that time, also incorporating facilities for

treatment of waste produced during its operation and pollution control

equipment for control of sulfur dioxide and particle emissions.86

As stated previously, Mexico invokes the unconstitutionality of

retroactive application of the law to justify not requiring Molymex to

obtain an environmental impact authorization in 1995. The responsible

authority explains the reason for not considering that the application of

the EIA procedure to the 1998 project was also retroactive, as follows:

When the Environmental Impact Statement, General Form, was filed for

evaluation, it was determined that it was appropriate to evaluate it for the

possible generation of significant adverse environmental impacts. Due to

the increased production capacity, there would be higher levels of air pollutant emissions and, therefore, it would be necessary to apply mitigation

measures to the environmental impacts generated.

The non-retroactivity criterion was not considered because the matter at

issue was the construction and installation of a totally independent production line, which was evaluated as if it were a new project.87

5.4.3 Outstanding Legal Issues

The submission and Mexico’s response discuss legal issues relating

to EIA that have not yet been resolved one way or another by the Mexican

courts. The submission states that Molymex does not hold an environmental impact authorization. According to the submission, although the

Molymex plant began operating in 1979, it ceased operating in 1991 and,

when it resumed in 1995, it was carrying out different activities and did

not obtain a prior environmental impact authorization.88

Mexico asserts that the EIA procedure did not exist in the environmental law applicable to Molymex when the company was established

in 1979 and that Article 14 of the Constitution prohibits the retroactive

enforcement of a law. Mexico further asserts that EIA cannot be applied

to existing or already initiated projects or activities because it is a preventive instrument.89

38 FACTUAL RECORD: MOLYMEX II SUBMISSION

86. IP-Mex-DGIRA, at 5.

87. Ibid.

88. Submission, at 6–7.

89. Response, at 3–7 and IP-Mex-Profepa2, at 2–3.
Although the preventive nature of EIA is evident, in fact none of

the versions of the law provides that EIA may not be applied to existing

activities and the two regulations expressly provide the contrary. The

RIA in force from 7 June 1988 to 29 June 2000 prescribed the application

of EIA to existing activities as follows:

RIA, Transitory Article 5.- In cases of works or activities in progress at the

time this provision comes into force, provided that they are contemplated

by Article 5 of the Regulation and that they cause environmental imbalance or exceed the limits and conditions set out in the environmental

regulations and technical standards enacted for the protection of the environment, the Ministry may require their owners or the persons carrying

them out to file a general environmental impact statement...

The new REIA in force as of June 2000 also provides that EIA may

be required for an already initiated activity, excluding “renovations of a

facility operating since prior to 1988.”

REIA, Article 16.- For the purposes of Article 28, paragraph XIII of the

Law, where the Ministry becomes aware of the intention of undertaking a

work or activity under federal jurisdiction or of the fact that, where such

activity is already initiated, its furtherance may cause grave or irreparable

ecological imbalance, harm to public health as a result of environmental

problems, or damage to ecosystems, or may exceed the limits and conditions set out in the legal provisions enacted for preservation of ecological

balance and environmental protection, it shall immediately notify the

interested party of its determination to submit the corresponding work or

activity, or the uncompleted portion thereof, to the environmental impact

assessment procedure, explaining the reasons for this determination, with

the objective that the latter may file any reports and considerations it considers appropriate within a period not to exceed ten days.

Upon receipt of such documentation, the Ministry shall, within a

thirty-day period, notify the interested party whether or not the filing of

an environmental impact statement applies, indicating the applicable

form and time period within which this shall be done. Where the matter

concerns works or activities already initiated, the Ministry shall apply the

relevant safety measures in accordance with the provisions of Article 170

of the Law.

Where the Ministry fails to give notice within the period indicated, this

shall be construed as indicating that the filing of an environmental impact

statement is not required.

REIA, Transitory Article 4. Works or activities corresponding to renovations of a work operating prior to 1988 shall not be submitted to the environmental impact assessment procedure.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 39
Another unresolved legal issue is the retroactive application of

the EIA requirement. The submission, anticipating that Mexico would

invoke in its response the unconstitutionality of a retroactive EIA

requirement, cites two Mexican Supreme Court decisions to the effect

that retroactive enforcement of a law is constitutional where it is in the

public interest. The arguments cited by the submission state as follows:

[...] An exception consecrated by all jurists is that the law may be held to

have retroactive effects where the social or public interest so requires...

(Semanario Judicial de la Federación, Quinta Época, Vol. VI, p. 371)

[...] Retroactivity is not only the fact of governing the past but also, and

quite essentially, infringing an acquired right; and it is an elementary principle that private persons may not acquire rights that are in conflict with

the public interest; so that, where a law infringes a right of this type, there

is no retroactivity, even where the existence of the right predates that of the

law... (Semanario Judicial de la Federación,Quinta Época, Vol. XIV, p. 691).90

In its response to the submission and in the information provided

for the development of this factual record, Mexico asserts that the

Constitution prohibits the retroactive enforcement of the law and that

subjecting an existing activity to the EIA procedure would be unconstitutional. Mexico’s response refers to a decision prior to those cited in the

submission affirming the unconstitutionality of retroactive law enforcement in the following terms:

RETROACTIVITY OF THE LAW. Article 14 of the Constitution strictly

prohibits any law from being given retroactive effect with prejudice to any

person.91

Both the decision cited by Mexico and the two cited by the Submitters refer to matters that are not environmental matters and date from

1921 and 1924, respectively.

There is no interpretation by the Mexican courts as to the constitutionality of applying the EIA requirement retroactively.92 Neither is

40 FACTUAL RECORD: MOLYMEX II SUBMISSION

90. Submission, at 7.

91. Semanario Judicial de la Federación, Quinta Época, Pleno, Vol. VIII, p. 261. Indirect

administrative amparo. Lancaster Jones Ricardo. 1 February 1921. Unanimity of

nine votes. Absent: Alberto M. González and Benito Flores. The publication does

not mention the name of the ponente(judge responsible for directing the discovery).

92. LGEEPA Article 1 provides as follows: “This Law governs those provisions of the

Political Constitution of the United Mexican States that refer to the preservation

and restoration of ecological balance and environmental protection on the territory

of the nation and in the areas over which the nation exercises sovereignty and
there any interpretation as to whether the application of EIA is retroactive where it is applied, not by sanctioning environmental impacts

caused in the past, but, rather, by requiring that an EIA be carried out of

an existing activity to achieve from that time onward the preventive, corrective, and control effects provided by law. This issue has not yet been

resolved.

Another legal issue arising from the submission is whether it is retroactive enforcement to require an EIA of an activity which – having

started prior to the entry into force of the EIA requirement – was suspended and resumed once the EIA requirement was in effect. That is,

where an activity passes from one party to another by chain of title and

the activity is interrupted, it is unclear that the application of a provision

to the resumed activity is retroactive. The Secretariat requested Mexico

to provide additional information to clarify the authority’s interpretation of the law in these circumstances but did not obtain a response.

Neither is there any existing interpretation by the Mexican courts on this

specific issue, which remains unresolved.

In addition to the arguments cited in the submission and the

response, the courts have held as follows in relation to retroactive law

enforcement:93

RETROACTIVITY OF THE LAW. The Court has held in various decisions

that the courts’ application of laws for public order or in the general interest is never retroactive; and that monetary laws are of such a nature, in

view of their spirit and the social need they fulfill.94

PRIVATE RIGHTS. PUBLIC INTEREST. Private persons may not acquire

rights in conflict with the public interest; so that, where a law infringes a

right of this type, there is no retroactivity, even where the existence of the

right predates that of the law.95

RETROACTIVITY IN PUBLIC LAW. The provisions of public law, which

encompass those of administrative law, one of its branches, have the effect

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 41

jurisdiction. Its provisions are designed for the protection of public order and the

public interest and their purpose is to promote sustainable development and lay

the groundwork for...”

93. Information provided to the Secretariat by Domingo Gutiérrez Mendívil on 18

November 2002.

94. Direct amparo. – Colonia del Agua Azul, S.A. – 30 September 1924. SCJN, Semanario

Judicial de la Federación, Pleno, Quinta Época, Volume XV, at 815.

95. Indirect amparo 7239/60. Ingenio Tala, S.A. and co-complainants. 11 August 1961.

Unanimity of 4 votes. Ponente: Octavio Mendoza González. SCJN, Second Chamber, Semanario Judicial de la Federación, Sexta Época, Vol. L, Part III, at 109.
of repealing or amending earlier provisions for the future, as required in

the public interest.96

CONSTRUCTION. REGULATIONS. RETROACTIVITY. Where a new

provision is enacted that establishes requirements for constructions and is

tantamount to the placing of limitations on private property, such provision shall emanate from Congress, since Article 27 of the Constitution

always speaks of “laws” or “regulatory laws” where the issue is one of

placing limitations on private property by means of provisions of a general nature, and laws or regulatory laws are provisions of that kind. For it

is clear that the Executive Branch could not, whether by its own authority

or in exercise of the power invested in it by Article 89, paragraph I of the

Constitution to promulgate regulatory laws, place limitations on private

property in the absence of such laws. And where the issue is one of imposing on constructions simple requirements necessary to protect public

health or safety, since this is indeed a matter of policing and good government, provided that it is not tantamount to imposing substantially new

limitations on private property, this may indeed be done in general by

means of an autonomous regulation of the kind provided by Article 10

[sic] of the Constitution. Now, where building safety requirements are

established in general provisions of this kind, such as the Urban Development Law [Ley de Desarrollo Urbano] and the Construction Regulation for

the Federal District [Reglamento de Construcciones para el Distrito Federal],

some of these requirements being necessary to prevent or fight fires, in

principle it may be assumed that such measures do indeed apply to buildings constructed previously without this being considered an instance of

retroactive enforcement prohibited by Article 14 of the Constitution, since

providing for the safety of the occupants and neighbors of the buildings

cannot entail prejudice to the owner from the juridical and legal point of

view, as if he possessed the acquired right of not protecting the safety of

persons occupying his building. However, he could oppose such measures on the grounds that their retroactive enforcement causes him undue

prejudice because they were not in force when the building was built, if

these new measures are tantamount to the placing of real limitations on

private property and were imposed solely in a regulation decreed by the

President of the Republic, or if these measures were not formerly required

and do not substantially affect the safety of the building or its occupants,

or if it is impossible to reasonably adopt the measures in question, unless it

is proven that the public interest demands the total or partial demolition of

the building given the serious risk to which it subjects the occupants and

neighbors.97

42 FACTUAL RECORD: MOLYMEX II SUBMISSION

96. Indirect amparo 3410/38, Section 2.– La Compañía Harinera de Torreón S.A. and

co-complainants. – 30 September 1938. – Unanimity of four votes. SCJN, Second

Chamber, Semanario Judicial de la Federación, Quinta Época, Volume LVII, at 3325.

97. Indirect amparo 1177/80. Guadalupe Carral viuda de Teresa. 11 de June de 1981.

Unanimous decision. Ponente: Guillermo Guzmán Orozco. Primer Tribunal Colegiado en Materia Administrativa del Primer Circuito, Semanario Judicial de la

Federación, Séptima Época, Vol. 145-150, Part VI, at 85.
RETROACTIVITY. NATURAL RESOURCES. The principle of non-retroactivity established in Article 14 of the Constitution may not be interpreted to mean that always and in every case – even in cases that involve

concessions or authorizations to exploit the country’s natural resources, or

matters affecting the public interest or large social groups – the private

interests and rights of individuals or small groups must prevail over the

public interest and the changing needs that motivated the enactment of

the new law governing the use of such resources in a manner more suitable to their new status, new operating techniques, an increase in the

population of the country, etc. In such cases, the theory of retroactivity

must be applied cautiously with respect to acquired rights or situations

concretized under a previous law, since such rights and situations are

materialized under the principle of rebus sic stantibus (unforeseeable circumstances) and could not prevail over the general interest by means of

an individualistic or overly conservative application of the constitutional

principle of non-retroactivity.98

5.5 Enforcement of Land Use Law with respect to Molymex

LGEEPA Article 112 provides as follows:

Regarding prevention and control of air pollution, the governments of the

States, the Federal District, and the Municipalities, in accordance with the

distribution of powers established in Articles 7, 8 and 9 of this Law, as well

as with the applicable local legislation:

[...] II.- Shall apply the general criteria for protection of the atmosphere in

the urban development plans within their purview, defining the zones in

which polluting industrial facilities may be sited; [...]99

The submission asserts that Molymex does not have a land use

permit100 and states that Mexico is failing to enforce its environmental

law by failing to define the zones in which polluting industrial facilities

may be sited in Cumpas, Sonora.101 However, the submission also

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 43

98. Indirect amparo 210/77. Soc. Coop. de Prod. Pesq. “Tamiahua”, S.C.L. 10 May 1977.

Unanimous decision. Ponente: Guillermo Guzmán Orozco. Primer Tribunal Colegiado en Materia Administrativa del Primer Circuito, Semanario Judicial de la

Federación, Séptima Época, Vol. 97-102, Part VI, at 224.

99. The criteria to which LGEEPA Article 112 refers are as follows:

LGEEPA, Article 110.- For the protection of the atmosphere, the following criteria

shall be considered:

I.- Air quality shall be satisfactory in all human settlements and regions of the

country; and

II.- Air pollutant emissions, whether from artificial or natural, fixed or mobile

sources shall be reduced and controlled in order to guarantee that air quality is

satisfactory to the well-being of the population and to ecological balance.

100. Submission, at 8.

101. Submission, at 10.
asserts, in what appears to be a contradiction, that according to Figure

N-4 (current land use map) of the Cumpas Urban Development Masterplan, the area designated for industrial use in Cumpas is very far from

the site of the Molymex plant.102

On 7 September 1998, the Office of the Mayor (Presidencia Municipal) of Cumpas, Sonora authorized the issuance of an industrial land use

permit to Molymex, S.A. de C.V. in response to the company’s request of

12 August 1998.103 The Municipality of Cumpas issued Molymex the

land use permit on 5 October 1998 and this fact was published in the Official Bulletin of the State of Sonora on 14 February 2000.104

The land use permit indicates that the Municipality of Cumpas

does not have a land use or urban development regulation and that, in

consequence, this industrial land use permit was issued to Molymex by

means of a resolution passed by a majority vote of the Municipal Council

(cabildo). The Municipality of Cumpas stated:

[...] historically, [...] the industrial zone has been established to the north of

the urban area since “El Transval” operated there, followed by Molymex,

S.A. de C.V., and Mr. Heliodoro Rivas who operated a small metal mill on

the “El Onaveño” and “El Transval” lots. Therefore, there is a historical

reason for the lots concerned by this decision to be declared for industrial

use... Furthermore, jobs are promoted, which is also one of the municipal

obligations, for which purpose this declaration ensures an adequate relationship between workplaces and homes, since the lots in question are

located at a reasonable distance from the urban residential areas... In sum,

it can be said that the use of these lots for industrial purposes is an established fact and that their location is appropriate for such use... The lots

are outside of the residential area and its projected growth zone, since

the town tends to grow towards the southeast, and the municipality is

not contemplating any action to assign the “La Media Legua” and “El

Onaveño” lots a use different from the one currently given to them by

Molymex, S.A. de C.V.105

Regarding the provision of LGEEPA Article 112 that municipalities shall define the zones in which polluting industrial facilities may be

sited, Mexico states that the only municipal development plan that

determines such a zone is the Municipal Development Plan for the

Municipality of Cumpas, Sonora, 1998-2000 (PDM 1998-2000) and that

in this plan, Molymex is included within the corresponding zone, “as

44 FACTUAL RECORD: MOLYMEX II SUBMISSION

102. Submission, at 11.

103. Response, Appendix 2.

104. IP-Molymex, Appendix 4.

105. IP-Molymex, Appendix 4, at 1–2.
may be seen from the maps included in that document.”106 The copy of

PDM 1998-2000 provided to the Secretariat indicates the existence of an

industrial furnace in the map labeled “Cumpas Ecológico” but does not

include any map defining a zone for polluting industrial facilities.

According to the Municipality of Cumpas, the furnace indicated on this

map is the one corresponding to Molymex and it is precisely that furnace

that is the industrial zone.107

The Party’s response raises a legal issue that is worth noting here,

although it is in the jurisdiction of the federal courts only to resolve it.

LGEEPA Article 112, paragraph II, requires that the general criteria for

the protection of the atmosphere be applied through an action that creates a general and abstract norm: the establishment in urban development plans of the areas in which polluting industrial facilities may be

sited. The issuance of a land use permit is an action that creates an individual and concrete norm. There is no interpretation by the federal

courts on this matter.

5.6 Enforcement of Environmental Law Concerning SO2 with

Respect to Molymex108

5.6.1 Legal Framework for SO2 Emissions

The LGEEPA and its Air Pollution Prevention and Control Regulation (Reglamento en Materia de Prevención y Control de la Contaminación de

la Atmósfera—RATM) provide that fixed sources of air polluting emissions must observe the standards defined in the NOMs. There are two

types of limit: a) an air pollutant emission limit applicable to pipe or

stack emissions, and b) limits for concentrations in the environment of

pollutants that may affect human health or ecosystems (ambient air or

ground-level concentrations). The relevant provisions of Mexican law

are as follows:

LGEEPA (1988), Article 113. Pollutants that cause or may cause ecological

imbalance or environmental harm shall not be emitted into the atmosphere. The provisions of this law and the regulatory provisions ensuing

from it, as well as the environmental technical standards issued by the

Ministry, shall be observed with respect to all air emissions. Prior authoriSUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 45

106. IP-Mex-AC, Oficio No. 0446/2002, at 1–2.

107. Ibid.

108. Except where another source is indicated, this section is based on technical information produced for the Secretariat by Acosta y Asociados in the report, “Technical

opinion on SO2 Emissions, Submission SEM-00-005 (Molymex II)” of 31 January

2003.
zation of the Ministry is required where such emissions contain hazardous

materials or wastes.109

RATM, Article 16. Atmospheric emissions of odors, gases, and solid or

liquid particles generated by fixed sources shall not exceed the maximum

allowable emission and ambient air levels for pollutants and pollution

sources established in the environmental technical standards issued for

such purpose by the Ministry in coordination with the Ministry of Health,

based on the determination of the maximum allowable concentration values of air pollutants for human beings determined by the latter.

Likewise, and taking account of the diversity of technologies used by the

sources, different values of the maximum allowable emission or ambient

air levels for the same pollutant or the same source may be established in

the environmental technical standards, depending on whether the sources

at issue are:

I. existing sources;

II. new sources, or

III. sources located in critical zones.

The Ministry, in coordination with the Ministry of Health, and subject to

the relevant studies, shall, in the relevant environmental technical standard, determine the zones considered critical.

RATM, Article 17. The persons responsible for fixed sources under federal jurisdiction that emit odors, gases, or solid or liquid particles into the

atmosphere shall:

I. use equipment and systems designed to control air emissions such

that the latter do not exceed the maximum allowable levels set out in

the applicable environmental technical standards;

II. make an inventory of their air pollutant emissions in the manner

determined by the Ministry;

III. install sampling platforms and ports;

IV. measure their air pollutant emissions, record the results in the format

determined by the Ministry, and file the records with the Ministry

where the latter so requires;

46 FACTUAL RECORD: MOLYMEX II SUBMISSION

109. In the revised LGEEPA of 1996, the last sentence of Article 113 was deleted and Article 111 Bis was added:

LGEEPA (1996), Article 111 Bis.- For the operation and working of fixed sources

under federal jurisdiction that emit or may emit odors, gases, or solid or liquid

particles into the atmosphere, the authorization of the Ministry shall be required.
V. conduct perimeter monitoring of their air pollutant emissions

where the source in question is located in urban or suburban areas,

where it is contiguous with protected natural areas, or where, due to

the characteristics of its operation, raw materials, products and/or

subproducts, it may, in the opinion of the Ministry, cause serious

harm to ecosystems;

VI. keep operating and maintenance logs for its process and control

equipment;

VII. give prior notice to the Ministry of the resumption of its processes in

the case of planned downtime and immediate notice in the case of

emergency or contingency downtime, where these may cause pollution;

VIII. immediately notify the Ministry in the event of the failure of control

equipment, where the failure may cause pollution, so that the Ministry may determine the appropriate course of action; and

IX. any other requirements established by the Law and the Regulation.

RATM, Article 18. Without prejudice to the authorizations issued by

other competent authorities, fixed sources under federal jurisdiction that

emit or may emit odors, gases, or solid or liquid particles into the atmosphere require an operating permit issued by the Ministry, which will be

for an indefinite term.

RATM, Article 20. Upon receipt of the information contemplated in the

preceding article, the Ministry shall grant or deny the relevant operating

permit within the thirty working days following the date when it has

received all the required information. Where the permit is granted, it shall

specify:

I. the frequency with which the source shall file an inventory of its emissions with the Ministry;

II. the frequency with which it shall conduct measurement and monitoring as prescribed by Article 17, paragraphs IV and V;

III. the measures and actions that shall be taken in the event of a contingency, and

IV. the equipment and any other conditions determined by the Ministry

with a view to preventing and controlling air pollution.

In the operating permit, the Ministry may set specific maximum emission

levels for those fixed sources which, due to their special characteristics of

construction or to peculiarities of their processes, are unable to meet the

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 47
environmental technical standards establishing the maximum allowable

levels for air pollutant emissions.

Semarnat is the entity empowered to issue NOMs (formerly environmental technical standards) respecting air pollution prevention and

control and to grant operating permits to fixed sources. The Ministry of

Health is empowered to issue NOMs respecting ambient air quality.110

Once Semarnat has issued an OP to a fixed source, the person responsible for the source must file an annual operating report including an

inventory of its air emissions.111 Semarnat may modify the limits set out

in the OP based on information filed in the annual operating report.112

The only NOM in force that establishes SO2 emission limits for

non-specific fixed sources is NOM–085–ECOL–1994 (NOM–085).113

This standard applies to fixed sources using fossil fuels, e.g. diesel, and

regulates SO2 emissions from direct combustion heating appliances,

except those that “produce sulfur additional to that which derives from

the fuel.”

The standards concerning ambient air SO2 concentrations are

those of NOM–022, which provides that the 24-hour concentration of

SO2 as an air pollutant shall not exceed 0.13 ppm (341 g/m3) more than

once a year, and that the annual arithmetic mean concentration shall not

exceed 0.03 ppm (79 g/m3), for protection of the health of the susceptible population. As mentioned above, this standard does not regulate

emission levels from pollution sources in particular but, rather, defines

air quality criteria with respect to SO2 which the authorities must apply

in their acts of air pollution prevention and control for the protection of

public health.114

48 FACTUAL RECORD: MOLYMEX II SUBMISSION

110. LGEEPA, Articles 5-VIII, 8-II, 36 and 111-I.

111. RATM, Article 21.

112. RATM, Article 22.

113. Mexican Official Standard NOM–085–ECOL–1994. Air pollution. Fixed sources.

For fixed sources using solid, liquid, or gas fossil fuels or any combination thereof,

establishing the maximum allowable air emission levels of smoke, total suspended

particles, sulfur dioxide and nitrogen oxides, and the requirements and conditions

for operation of indirect combustion heating appliances, as well as the maximum

allowable emission levels for sulfur dioxide from direct combustion heating appliances. Published in the DOF, 2 December 1994.

114. NOM–022 provides that “This Mexican Official Standard shall be observed by the

federal and local authorities responsible for enforcement and assessment of air

quality for the purposes of public health protection... The competent authorities,

within the scope of their powers, shall enforce compliance with this Mexican Official Standard... This Mexican Official Standard comes into force as a mandatory

standard on the day following its publication in the Official Gazette of the Federation.”
5.6.2 SO2 Emission and Ambient air Limits Applicable to Molymex

In its molybdenum sulfide roasting process Molymex produces

emissions of SO2 and solid and liquid particles. Although roasting is

done by means of direct heating with diesel, NOM–085 is not applicable

to SO2 emissions from this Molymex process because molybdenum sulfide, when transformed into molybdenum trioxide, generates sulfur

dioxide additional to that which derives from the fuel. Since there is no

NOM regulating this type of SO2 stack emission for the Molymex

roaster, the authorities set specific maximum SO2 levels in the plant’s

OP.115

Before selling the plant to Molymet, Grupo Frisco applied for an

OP for Molymex.116 The Sonora state office of the former Sedesol issued

the permit on 11 February 1994 by means of oficio No. DS–139–4–

SPA–126.117 This permit allowed an annual production of 113.4 tons but

was amended three months later to contemplate the projected annual

production of 7,500 tons and annual installed capacity of 15,000 tons.118

The OP was amended again on 3 April 1996. The following month, on 30

May 1996, Semarnat cancelled the first OP and its amendments and

issued a second OP to Molymex, which it amended on 17 June 1997.

Finally, on 29 November 2000, the authority replaced this permit, as

amended, with a third OP that is still in effect.119 Appendix 8 of this factual record summarizes the specifications of these OPs.

The submission asserts that by means of these permits, the environmental authority authorized Molymex to violate the ambient air SO2

concentration limits provided for the protection of public health in

NOM–022, basing this assertion on a document dated April 1995 by

Sonora state office B39 of Profepa recommending the temporary closing

of the plant.120

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 49

115. A draft Mexican Official Standard (NOM–091–ECOL/1994) published in the DOF

on 20 September 1994 established the 6-hour SO2 limit for smelting furnace emissions at 650 ppmv, but this draft NOM was cancelled. Also, the working group that

developed Schedule IV of the La Paz agreements (governing the operation of copper smelters on the Mexico/United States border) took as a reference the US EPA

6-hour criterion of 650 ppmv for control of SO2 emissions from copper smelters and

similar sources. This limit was originally established in New Source Performance

Standard Subpart P.

116. IP-Molymex, Appendix 6, at 4.

117. Response, Appendix 4.

118. IP-Molymex, Appendix 6, at 4.

119. The Secretariat received copies of the successive Molymex OPs from various

sources (IP-Mex-Profepa2, Appendix XI; Response, Appendices 4–9; and IPMolymex).

120. Submission, at 4–5, and IP-CCD, unnumbered appendix in second section.
In the first OP (11 February 1994), the authority established that the

6-hour average SO2 concentration in Molymex’s emissions was not to

exceed 0.065 percent by volume (i.e. 650 parts per million by volume –

ppmv) during startup, shutdown, or malfunction and that the 24-hour

ground-level SO2 concentration was not to exceed 0.13 ppm.121 This OP

provided for mandatory observance of the limits as from the resumption

of operations.

On 27 May 1994, Sedesol amended the Molymex OP. The 6-hour

average SO2 emission limit of 650 ppmv was maintained but the deadline for meeting it was extended to 1 May 2005. The 24-hour SO2 ambient

standard of 0.13 ppm was eliminated.122 On 3 April 1996, in the second

amendment to the first OP, Semarnap shortened the deadline for compliance with the 6-hour average SO2 emission limit of 650 ppmv from 1

May 2005 to 1 October 1997.123

On 30 May 1996, Semarnap issued the second OP to Molymex,

based on the operating reports filed by the company for 1995 and 1996

and in consideration of the commitments made by Molymex on 23 May

1996 in response to the complaints of several Cumpas residents.124 In this

OP, the limits were imposed on production volume and the deadline for

compliance with the SO2 emission limits was extended from 1 October

1997 to 31 December 1997. The 6-hour limit was maintained at

650 ppmv.125On 17 June 1997, Semarnap amended the compliance deadline again, extending it to 1,640 calendar days from 31 December 1997,

that is, approximately until June 2002.126

Finally, on 29 November 2000, Semarnap cancelled the previous

OPs and issued the third OP, reducing the compliance deadline for SO2

stack emissions to 31 December 2001; the limit was maintained at

650 ppmv.127

Concerning ambient air SO2 concentrations, Sedesol required

Molymex on 27 May 1994 to raise the stack on its plant to a sufficient

height for adequate dispersal of SO2 so as to keep the ground-level concentration from exceeding the NOM–022 standards (24-hour concentra50 FACTUAL RECORD: MOLYMEX II SUBMISSION

121. Response, Appendix 4 (DS.139-4-SPA-126).

122. Response, Appendix 5 (DS.139-4-SPA-1449).

123. Response, Appendix 7 (DS-SMA-UNE-LF-500).

124. Submission, Appendix 6.

125. Response, Appendix 6 (DS-SMA-UNE-LF-282).

126. Response, Appendix 8 (DFS-D-0986-97).

127. Response, Appendix 9 (DS-SMA-UNE-756).
tion exceeding 0.13 ppm no more than once a year128 and annual

arithmetic mean not exceeding 0.03 ppm) (first amendment to first

OP).129 Later, on 30 May 1996 (second OP), Semarnap required Molymex

to install a sulfuric acid plant (that began operating on 10 December

2001) to reduce SO2 emissions and prevent ambient concentrations from

exceeding the levels set out in NOM–022.130

In the contingency plan approved by Semarnap on 17 June 1997,

the following ambient air SO2 concentrations were set out as trigger

thresholds for the corresponding response phases:

Phase Maximum ambient air Time

SO2 concentration (ppm)

1 Alert 0.600 1 hr.

2 Alarm 0.400 5 hr.

3 Emergency 0.130 24 hr.

These trigger levels were maintained in the third OP (29 November

2000).

In summary, the 6-hour average SO2 emission limit applicable to

the Molymex plant’s roasting process is 650 ppmv (0.065 percent by volume), effective 31 December 2001. Prior to that date, the roasting process

operated with authorization under various OPs and their amendments

but without any mandatory SO2 emission limits. The NOM–022 health

protection standards for the concentration of SO2 as an air pollutant

(maximum 24-hour concentration of 0.13 ppm and annual arithmetic

mean of 0.03 ppm) have been in effect since Molymex began operating

on 5 January 1995 and, in principle, served as a reference for determining

the height of the Molymex stack, according to the first amendment to the

OP of 27 May 1994.131 The trigger levels in the aforementioned contingency plan have been in effect since 17 June 1997.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 51

128. Since the standard does not establish that the standard is a calendar-day limit, i.e.,

from 0:00 a.m. to 23:59 p.m. on any calendar day, this value holds for any 24-hour

period; i.e. the moving average 24-hour concentration.

129. Response, Appendix 5 (DS.139-4-SPA-1449).

130. Response, Appendix 6 (DS-SMA-UNE-LF-282).

131. The successive Molymex OPs establish other specifications for pollution prevention and control, including solid particle emission limits (50 mg/m3N) and liquid

particle emission limits (80 mg/m3N). These aspects of the plant’s operation are relevant to the question of whether, with respect to Molymex, Mexico is effectively

enforcing its air pollution prevention and control law in general. However, since
5.6.3 Relationship between the SO2 Limits Imposed on Molymex and

Compliance with NOM–022

As mentioned above, the submission asserts that the first amendment to the OP authorized Molymex to exceed the NOM–022 limits for

SO2 concentration in ambient air for the protection of public health. This

section analyzes the relationship between the two limits. Mexico states

as follows:

The air quality criteria derived from NOM–022–SSA1–1993 place limits on

the concentrations of various pollutants with the object of protecting the

health of the population (beginning with its most susceptible members),

and these are monitoring parameters for ambient air quality.

In the case at hand, since the first permit issued to Molymex, S.A. de C.V.,

consideration was given to establishing stack emission levels that would

not affect the population located in the Molymex plant’s areas of influence,

and compliance deadlines were set for the stack emission limits; as well,

the operation of an environmental monitoring network was imposed as a

condition.

Therefore, it may be concluded that the limits set out in NOM–022–

SSA1–1993 and the limits set out in the operating permit for the plant’s

stack emissions are two very different issues. However, from 1994 to date,

the results of ambient air quality monitoring indicate that sulfur dioxide

concentrations have been below the limits set out in NOM–022–SSA1–

1993 for ambient air...

[T]he sulfur dioxide stack emission limits set out in the operating permit as

amended [focus on] protection of the health of the population of the

human settlements in the vicinity of the Molymex, S.A. de C.V. plant.

The company’s stack emissions of sulfur dioxide are directly associated

with its roasting and production capacity; that is, the greater the production, the greater the SO2 emissions. For this reason, a specific production of

7,500 TM/year of molybdenum trioxide (determined by applying dispersion models and process materials balances) was authorized in order to

ensure compliance with NOM–022–SSA1–1993, among other aspects.

To supplement and corroborate the results of these determinations, the

implementation of an environmental monitoring system was made a necessary condition. This has operated from 1994 to date with the result that,

in fact, SO2 emissions are not exceeding the ambient air standard of

52 FACTUAL RECORD: MOLYMEX II SUBMISSION

the submission refers specifically to the SO2 limits, the effective enforcement of the

remaining specifications to which Molymex is subjected are not addressed here in

further detail. Appendix 8 of this factual record presents a summary of the specifications contained in the OPs, including these aspects.
NOM–022–SSA1–1993, even including the SO2 emissions from the

Molymex, S.A. de C.V. plant to guarantee compliance with NOM-022.132

The relationship between the quantity of SO2 emitted by a source

and its concentration at ground level is neither direct nor constant. Any

SO2 source, regardless of size and the control equipment with which it is

fitted (precipitators, sulfuric acid plant, etc.) can generate short-run

peaks of SO2 concentration at ground level. In general, these peak concentrations result from perturbations in the processes generating the

emissions; they are observed during startups or shutdowns, or derive

from the lack or failure of emission controls or equipment.133 Depending

on the process generating the SO2, its concentration in stack emissions

may be very low (only several ppm) or very high (greater than 4 percent

by volume or 40,000 ppm). Regardless of the size of the source or the

magnitude of its SO2 emissions, it is possible that at ground level the concentration may be greater than 2 ppm for periods less than 5 minutes.134

Since the wind changes direction and speed during the day, SO2 is

dispersed in the air and its atmospheric concentration becomes diluted.

Furthermore, the ground level SO2 concentration may vary considerably

within minutes as weather conditions change. In the case of Cumpas, the

ground-level concentration may be as low as 1 part per billion (ppb)

(0.001 ppm or 0.000001 percent) or greater than 2,500 ppb (2.5 ppm or

0.00025 percent) under certain conditions, such as extensive low-lying

cloud cover, low wind speeds, low temperatures, or thermal inversion.135

NOM–022 requires the authority to ensure observance of the maximum 24-hour SO2 concentration limit of 0.13 ppm (not to be exceeded

more than once a year) and the annual arithmetic mean concentration

limit of 0.03 ppm, to protect the health of the susceptible population.

Since the first Molymex OP, a 6-hour emission limit of 650 ppmv and a

24-hour ambient air standard of 0.13 ppm were set for SO2 . The first

amendment to this OP maintained the 6-hour limit but eliminated the

24-hour limit. The compliance deadlines were amended as well in the

succeeding OPs, such that the applicable limit was not enforceable on

Molymex until 31 December 2001.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 53

132. Information provided by the Sonora state office of Semarnat on 20 August 2002

(IP-Mex-S.D.Sonora), oficio UCAI/3782/02, at 2 and appendices.

133. Acosta y Asociados, “Technical opinion on SO2 Emissions, Submission SEM–00–

005 (Molymex II)”.

134. US Environmental Protection Agency, Guideline Document for Ambient Monitoring of

5-minute SO2 Concentrations-DRAFT, 20 July 2000.

135. Inspection report 260398-SV-Q-028, 26 March 1998, IP-Mex-Profepa2, Appendix X.
Due to the above-mentioned effects of dilution and dispersion, if

the 650 ppmv stack emission limit is complied with and fugitive SO2

emissions (emissions not channeled through the stack) are eliminated or

minimized, it is unlikely that the ambient air standards will be exceeded

at ground level. However, the ambient air SO2 concentration could

exceed the NOM–022 standard even if the stack emissions do not exceed

the limit of 650 ppmv, because this limit is a 6-hour average. That is,

where concentration at the stack is several times greater than 650 ppmv

for short periods (e.g., one or two hours) followed by low concentrations

for longer periods, the 1-hour average ground-level concentration may

exceed 0.600 ppm and the 24-hour average ground-level concentration

may exceed 0.13 ppm even if the limits were not exceeded at the stack.

5.6.4 SO2 Emissions of Molymex

Molymex applies the following processes to reduce its SO2 emissions:

[F]irst, elimination of solid particles using cyclones and electrostatic precipitators; second, acid mist and fine solid particle collection in the gas

scrubbing plant; finally, desulfurization of gases through a sulfur dioxide

treatment (sulfuric acid) plant...

Thus the gas originating from the roasting process passes through two

stages of particulate matter elimination; first, a bank of cyclones with efficiency greater than 75 percent, and second, a two-field electrostatic

precipitator with efficiency greater than 98 percent. The material collected

by these two systems is returned to the roaster.

After the particulate matter is eliminated, the gas flow is treated in a scrubbing plant to reduce fume levels below those set out in the applicable legal

provisions. For this operation, the plant is equipped with a Venturi scrubber cooled adiabatically by evaporation of water from the scrubbing solution...

As one of the main ongoing commitments to SO2 emission control, on 19

March 2002 a sulfur dioxide treatment (sulfuric acid) plant was inaugurated. It was commissioned on 10 December 2001 and is one of three such

plants operating in the world, yielding definitive reductions in emissions

of this pollutant. Even so, prior to the operation of this system, the emissions were always well below the limits established by the authority.136

In accordance with its third OP, Molymex measures sulfur dioxide

concentrations in the stack emissions from the roaster by means of

54 FACTUAL RECORD: MOLYMEX II SUBMISSION

136. IP-Molymex, at 11–12.
method NOM–AA–56, using a continuous monitor that has operated

since August 2001. Molymex is required to make the results of these

measurements available to the authority, and to submit along with its

annual operating report a spreadsheet of quarterly estimated and/or

measured air pollutant emissions. The company must report to Profepa

any 6-hour average that exceeds the limit of 650 ppmv.137

The information provided to the Secretariat for the development of

this factual record did not include the results recorded by the continuous

monitor itself, nor the operating reports, but only copies of graphs of the

6-hour averages for every day in the months of January to September

2002. The maximum 6-hour average SO2 concentrations shown in these

graphs are slightly lower than 400 ppmv (about 3.2 percent by volume).

The graphs show that the SO2 stack emissions did not exceed the 6-hour

limit of 650 ppmv that has been mandatory since 1 December 2001.138

These graphs are reproduced in Appendix 9 of this factual record.

According to Coprodemac, Molymex uses the plant’s metal stack

at night to avoid controlling its SO2 emissions. During an inspection visit

on 26 March 1998, Profepa reviewed the operating logs of the gas scrubbing plant and determined that from September 1997 to March 1998 the

operation of the temporary or metal stack had not been recorded.139 Following a complaint filed by Coprodemac in September 1998, the Mining

Development Section of the Sonora State Ministry of Economic Development and Productivity (Secretaría de Desarrollo Económico y Productividad)

also reviewed the matter and concluded as follows:

1. The plant’s original stack, with a height of 33 metres, was used from

the resumption of operations on 6 January 1995 to 1 October 1996

without any appreciable deterioration of the environment. However,

the visual impact of the plume of smoke from the stack caused nuisance and concern in Cumpas and neighboring towns, and several

complaints were filed with the competent authorities.

2. In response, a meeting was held on 23 May 1996 between federal,

state, and municipal authorities and Coprodemac representatives. As

an initial measure to respond to the community’s concerns, the company Molymex, S.A. de C.V. committed to immediately reducing the

furnace load by 30 percent and raising the stack for better dispersion

of the gases. These promises were fulfilled promptly and on 1 October

1996 the plant began using an 83-meter high metal stack. In May 1997,

a test was run at maximum capacity during a period of 25 days with

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 55

137. Third OP, IP-Molymex, at 10-12 and Appendix 1.

138. IP-Molymex, Appendix 14.

139. Inspection report 260398-SV-Q-028, IP-Mex-Profepa2, Appendix X.
satisfactory results, and Semarnap authorized the operation of the

furnace at full capacity. This metal stack operated from 1 October

1996 to 5 July 1997, and no complaints were received during those 8

months.

3. At the same meeting, Molymex proposed the installation of a gas

scrubbing plant that would eliminate to some extent the visual impact

of the stack smoke and further decrease the concentration of solid particles and sulfur dioxide. The gas scrubbing plant and its 83-metre

high PVC stack were installed on 9 June 1997 and went into operation

immediately, with satisfactory results that fully met Semarnap’s

requirements.

4. The metal stack mentioned in this document [sent by Coprodemac on

21 September 1998] operated during power outages on the CFE (federally owned electricity company) grid lasting generally less than 50

minutes. The company in question has now repaired its 100 kVA generator, which has sufficient capacity to operate the plant during

power outages.

5. From our study of the available information and our visit to the facilities, we did not find any valid technical or legal argument to request

and/or require the company Molymex, S.A. de C.V. to dismantle the

metal stack referred to in its document of September 21 of this year.

6. The company Molymex, S.A. de C.V. is in full compliance with the

requirements established by Semarnap in its current operating permit and has been authorized to use this stack in cases of emergency

without endangering the PVC stack nor the health of the neighbouring communities.140

Coprodemac and several Cumpas residents assert that Molymex

continues to use the metal stack at night to avoid controlling its gas emissions, and that breathing at night and in the early morning hours is very

difficult due to these emissions. They assert that this has had multiple

impacts on the health of Cumpas residents, particularly children and the

elderly. They further argue that it has been impossible to document this

practice because Molymex engages in it at night and avoids it when any

authority visits Cumpas. The Secretariat did not observe this practice

during its visit of 8 October 2002, nor does the information gathered

indicate that any authority has observed it. Profepa conducted an

inspection of Molymex on 8–9 March 2001 to determine compliance with

the air emission-related environmental law in response to a citizen com56 FACTUAL RECORD: MOLYMEX II SUBMISSION

140. Letter of 28 October 1998 from the Mining Development Branch of the Sonora

State Ministry of Economic Development and Productivity to Coprodemac; IPMolymex, Appendix 20.
plaint about these alleged night-time air emissions. The report indicates

that during the period from 23–28 October 2000, Molymex used the

metal stack for planned maintenance of the general plant, notifying

Semarnap on October 20 of this plan. Profepa determined that no administrative proceeding should be instituted because Molymex was in

compliance with its legal obligations.141 Coprodemac provided the Secretariat with several videotapes showing a gas plume rising from the

Molymex stack, but it is impossible to determine the composition and

concentration of gases and particles from these images.

Molymex asserts that this accusation is false, since diverting the

gases from the roaster would mean ceasing to produce sulfuric acid, a

secondary product sold by the company. The company further argues

that the sulfuric acid plant cannot simply be switched on during the day

and off at night, since this equipment requires continuous operation.142

The information gathered for this factual record did not enable the Secretariat to confirm whether Molymex produced the alleged night-time

air emissions, whether it is still producing them, or whether any health

effects ensued from them as alleged, since none of the contradictory

information received by the Secretariat is conclusive as to the facts.143

5.6.5 Ambient SO2 Concentration in the Molymex Area of Influence

Molymex operates a continuous ambient SO2 monitoring system

in the vicinity of the plant, consisting of a master station and four remote

stations, three of them fixed and one mobile. The fixed stations were

commissioned on 29 October 1994, followed by the mobile unit in September 1996. Molymex files with the authority a monthly report of the

SO2 concentrations recorded at each monitoring station. These reports

include the following information:144

• 1-hour average concentrations for every hour of every day;

• maximum and minimum 1-hour averages for each day;

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 57

141. Inspection report 08032001-SV-Q-001 and administrative decision PFPA-DS-SJ0588/2001, IP-Molymex, Appendix 5.

142. Interview with Molymex personnel during Secretariat’s visit to plant in Cumpas, 8

October 2002.

143. IP-CCD, presentation; interviews with residents during Secretariat’s visit to

Cumpas, 8 October 2002; letter from Antonio Heras Durán to the CEC Secretariat, 30

October 2002, among others; statements of several Cumpas residents at the meeting

of 28 April 1998 between various authorities and Coprodemac, videotaped and provided by Antonio Heras Durán to the Secretariat.

144. IP-Molymex, Appendix 15.
• daily average;

• average of daily maximums, and

• average of daily minimums.

These reports are filed both in paper and electronically, including

weather data for each station. Average monthly and annual concentrations are obtained and compared with the NOM–022 standards by

means of arithmetic computation of the daily SO2 data.

The towns of Cumpas, Teonadepa and Ojo de Agua near the plant

were chosen to site the three original remote stations, absent emissions

and weather data for the municipality of Cumpas in late 1994.145 Each

remote station is equipped with an API 100 continuous fluorescent sulfur dioxide analyzer made by Advanced Pollution Instrumentation, Inc.

This device determines the SO2 concentration using the EQSA 0990-077

automated equivalent method approved by the US Environmental Protection Agency. These analyzers are equipped with an internal data

acquisition system that keeps records of the average concentration readings for the last 1 to 60 minutes as well as the last 100 averages.146

The range of measurement of the API 100 analyzers is

0–0.500 ppm.147 The remote station analyzers determine the SO2 concentration during one hour, average the values, and transmit a 60-minute

average value to the master station computer. Any of these averages is

considered valid if it is calculated from at least 75 percent of the samples,

i.e., 45 1-minute readings. The computer prints an hourly listing of

weather and SO2 concentration data, as well as the number of samples

used in the determination of each 1-hour average.148 The company

enters this data into a spreadsheet and presents it in the form of 1-hour

averages for each day of the month, expressed in ppb, grouped by

remote station and month. For each day, the maximum and minimum

58 FACTUAL RECORD: MOLYMEX II SUBMISSION

145. DFS-D-0986-97, 17 June 1997, IP-Mex-Profepa2, Appendix XI.6.

146. The analyzers have the capacity to recalibrate automatically, which must be done

once a day, at night. The measurement, calibration, and maintenance procedures

developed for these devices are those contained in Mexican Official Standard

NOM–CCAM–005–1993 for sulfur dioxide, published in the DOF on 18 October

1993. For calibration, these analyzers use a certified calibration gas cylinder (EPA

Protocol 2) and a dilution system used to verify the ranges operation. A log in each

remote unit keeps records of calibrations performed and the details of the operation. As auxiliary devices, they are equipped with Deltec uninterruptible power

units and window-type air conditioning units.

147. Report on sulfur dioxide concentration and weather parameters, October-December 1994, IP-Mex-Semarnat-D.Sonora, Appendix 1.

148. Oficio DFS-0986-97 of 17 June 1997, IP-Mex-Profepa2, Appendix XI.6.
1-hour averages are identified and the average daily and monthly values

are computed arithmetically. The annual average concentration is then

calculated from these results.149

Due to the 0–0.500 ppm measurement range of the analyzers,

values greater than 0.500 ppm are recorded as if equal to that value.

Consequently, the perimeter monitoring network cannot detect 1-hour

average ambient air SO2 concentrations of 0.600 ppm, which are supposed to trigger the alert phase and the beginning of the response phases

in the Molymex contingency plan. Therefore, the values averaged to

determine whether the NOM–022 24-hour limit of 0.13 ppm is exceeded

are never greater than 0.500 ppm.

In the monthly reports of ambient air SO2 concentrations provided

by Molymex for the period from November 1994 to September 2002,

no daily average values (on a calendar-day basis) over 0.13 ppm are

reported. Likewise, the annual average values calculated from this data

are lower than 0.03 ppm. That is, none of the values reported in these

tables exceed the ambient air SO2 standard of NOM–022.

The Secretariat, through independent experts, analyzed the data in

the monitoring result tables. The experts concluded that the monthly

reports of continuous SO2 monitoring in the vicinity of the Molymex

plant do not in fact enable one to assert that the ambient air SO2 standards of NOM–022 were never exceeded. The analysis of the data contained in these reports reveals the following:

a) The detection capacity of the monitoring system is insufficient. As

mentioned above, the detection range of the analyzers used (0.500 ppm)

is lower than one of the thresholds with which the data is to be compared

(the 1-hour average of 0.600 ppm). In addition, the monitors cannot

detect short run concentration peaks of 2 ppm or greater.

b) The monitoring data contain blank records. Blank fields occur in the

reports from every station. In some months, the proportion of hours for

which no data was recorded is very high, and on occasion there are periods of more than 24 consecutive hours without any data whatsoever, yet

one of the limits with which the results must be compared (0.13 ppm) is

in fact a 24-hour average. There are months for which no hourly data is

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 59

149. The information obtained by the Secretariat for the development of this factual

record consisted of copies of the master unit computer printouts from November to

December 1994 and copies of the spreadsheets into which the original printouts

were entered from January 1995 to September 2002; IP-Mex-Profepa2, Appendices

I–IX.
lacking, but in many others there are periods of more than one and up to

two or more consecutive days without any data at all. The most extreme

case of missing data during the period from January 1995 to September

2002 occurred at the Ojo de Agua station during August 1996, when 576

hours were reported blank. The majority of these occasions include

explanatory notes (e.g., broken lamp, power outage, central computer

software crash, etc.). The following table presents some random (and

therefore not exhaustive or necessarily representative) examples of periods without data. Appendix 10 of this factual record contains a more

detailed presentation of this information.

Sample Periods without Data

Station Dates of occurrence Consecutive hours

without data

Ojo de Agua 7–10 February 1995 69

12–25 September 1997 336

28 June 2000 24

Cumpas 17–18 June 2001 15

Teonadepa 2–3 February 1995 30

Mobile 6–12 September 1997 84

17–18 June 2000 17

6–9 June 2001 62

In some cases, the periods without data occurred in close proximity to values higher than those normally recorded. One such case

occurred in February 1995 at the Teonadepa station when, after 30 hours

without data, a value of 205.8 ppb was recorded, followed by 5 more

hours without data. In calculating average ambient air SO2 concentrations, the company ignored hours for which no data was recorded.

c) The monitoring data contain negative values. The reports include

negative data recorded at all stations.150 The recording of negative values of absolute value greater than the baseline drift specifications for the

analyzers used raises possible problems of accuracy.151 Negative values

60 FACTUAL RECORD: MOLYMEX II SUBMISSION

150. The occurrence of negative values could be mainly due to analyzer malfunction,

calibration or maintenance problems, or the presence of compounds that interfere

with SO2 measurements.

151. In January 1995, the company attributed the cases of negative values occurred during November and December 1994 to analyzer baseline drift and estimated that in

no case was this drift greater than 5 % of the total range of the analyzer (oficio

DFS-0986-97, IP-Mex-Profepa2, Appendix XI.6); that is, it was not greater than

25 ppb. However, the specifications for API Model 100 analyzers indicate that base-
were recorded at the four remote stations and at different hours of the

day from month to month, indicating that it is unlikely that this would

be due to the failure of any particular analyzer component.

In calculating daily average ambient air SO2 concentration, the

company considered negative numbers to be zero. The frequency of negative data recorded varies from none in some months (less frequent) to

nearly 82 percent of the total possible recordable data for a given

month.152 For example:

Sample Occurrences of Negative Values

Station Date Number of Percent of

negative values total recordable

Ojo de Agua September 1996 417 57.9

October 1997 543 73.0

Teonadepa May 1998 561 75.4

August 2001 436 58.6

Cumpas July 1997 611 82.1

Mobile August 2001 425 57.2

Appendix 11 of this factual record contains a more detailed presentation of this information.

On 19 November 1996, the authority indicated to Molymex in reference to the missing data in the monthly ambient air monitoring

reports, that air quality monitoring must never be interrupted and

ordered it to foresee and control “the problems experienced to date by

the monitoring equipment and the central weather station.” The authority repeated this order on 21 January 1998.153

d) The monitoring system lacks a substitute value algorithm. There is no

authorized algorithm for determining the substitute values to be used in

cases where either no data are recorded or the data recorded do not meet

the minimum quality criteria of the measurement protocol.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 61

line drift should be less than 0.5 % of the total range; in this case, the drift value

should be less than 2.5 ppb (0.005x500) (Decision closing file 28/95, oficio PFPA-DSUJ- 0570/2000, 14 March 2000, IP-Mex-Profepa2, Appendix XII.3.)

152. 720 recordable data items in months of 30 days and 744 recordable data items in

months of 31 days.

153. Oficios DS-SMA-UNE-CM-565 (19 November 1996) and DS-SMA-UNE-CM-123 (21

January 1998), IP-Molymex, Appendix 15.
The minimum and maximum values of the monitoring data are

presented in Appendix 12 of this factual record. As to the maximum values, for example, at the Ojo de Agua station a maximum of 244.4 ppb

(0.244 ppm) was recorded in July 1997, while a maximum of 244.2 ppb

was recorded in December 1999, with only 11 data items recorded on this

latter date. At the Teonadepa station, a maximum value of 196.8 was

recorded in April 1999, while at the Cumpas station, a maximum value

of 166.6 was recorded in December 1999. At the mobile station, a maximum value of 260.2 was recorded in July 1997. This date marked the

entry into force of the emergency plan corresponding to the 6-hour average ambient air SO2 limit of 0.600 ppm. Prior to July 1997, maximum

observed values were 368.6 ppb at the mobile station in December 1996;

268.5 ppb at Cumpas in November 1995; 169.8 at Teonadepa in July 1995,

and 199.4 at Ojo de Agua in September 1995.

The experts who assisted the Secretariat in developing the technical information contained in this section indicated that the problem

probably having the greatest influence on the validity of the results

was the limited detection range of the API 100 analyzers used in the

Molymex perimeter monitoring network.154 The experts concluded as

follows:

Each of the data problems discussed in... this report could, to differing

extents, affect the 1-hour average values recorded and, consequently, the

62 FACTUAL RECORD: MOLYMEX II SUBMISSION

154. It is possible that SO2 concentration peaks of 2 ppm or more occurred at ground

level and were recorded as 0.500 ppm by the analyzers. The devices would use this

value to obtain the 1-hour average concentration and the value recorded would be

less than the one that actually occurred. If the concentration levels were very low

compared to the limits, then the effect of the range problem might be insignificant.

But, if the remaining concentration values, besides short-term peaks, were close to

the limit, it might occur that the actual average exceeded the limit even though the

calculated average did not. In this case, the 0.500 ppm detection limit of the device

could disguise a value exceeding the applicable limit. Thus, for example, if the

recorded average ambient air SO2 concentration was 0.2 or 0.3 ppm, it is arithmetically possible that the actual average during that hour was greater than 0.6 ppm if

high concentration peaks were recorded as 0.5 ppm. The likelihood would depend

on the magnitude, frequency, and duration of these peaks during the hour in question. In cases like the example presented, the lack of data may be more relevant, particularly where no concentration values were recorded for several consecutive

hours. The effect would not be the same where, for example, data is lacking for one

or two hours in a day but the remaining 1-hour averages were relatively low, e.g.,

compared to 0.13 ppm, as where data are lacking for 15, 20 or more consecutive

hours around higher average values, such as 0.25 ppm, as was the case at some stations. If the actual average exceeds the 0.25 ppm recorded, it is also arithmetically

possible that the actual daily average exceeds 0.13 ppm even though the recorded

average is lower. If, to these considerations, we add a negative analyzer baseline

drift greater than the maximum established in the device specifications, than the

error could be of greater magnitude due to erroneous readings.
calculation of the daily arithmetic mean ambient air SO2 concentrations.

The effect could be more or less substantial depending on the manner in

which these problems occurred and the prevailing environmental conditions.

Based on our analysis of the data presented, the problems we identified

with this data, and the discussion of the effects of these problems, we

reached the following conclusions:

1 It is possible that ambient air SO2 concentrations greater than 500 ppb

– which is the maximum value detectable by the analyzers in the

continuous perimeter monitoring network – occurred in the vicinity

of the Molymex plant. Therefore, it is possible that some of the 1-hour

averages recorded (and consequently, the computed daily averages)

during the period analyzed are lower than the levels that actually

occurred. With the data available it is impossible to rule out the occurrence of these errors, nor is it possible to estimate when they might

have occurred or the magnitude they might have reached.

2 The lack of 1-hour average ambient air SO2 concentration data, particularly for several consecutive hours and up to one or more days,

means that on those days of the period analyzed it is impossible to

validate the arithmetic means calculated, since there is no reliable

data that would enable one to speculate about the real values that

occurred during the periods in which no data were recorded. In this

regard, there is no algorithm authorized by the competent authority

for calculating substitute values.

3 The problem caused by the missing data is aggravated by the limited

detection range of the analyzers, particularly where this missing data

occurred for periods of several hours around recorded values greater

than 0.13 ppm.

4 In the data presented for analysis by the CEC, the lack of documentation of the calibration procedures, the type and frequency of adjustments, and the daily logs of these actions make it impossible to judge

the quality of the data reviewed. The negative values with absolute

value greater than the baseline drift given in the analyzer specifications may necessitate an evaluation of the quality plan for the monitoring program and the analyzer maintenance and servicing routines.

Likewise, it would be necessary to determine the real implications of

these negative values on measurement accuracy.

...

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 63

155. “Technical opinion on SO2 emissions, Submission SEM-00-005 (Molymex II),”

31 January 2003, technical information developed for the Secretariat by Acosta y

Asociados.
In view of the foregoing considerations, we can state that the information

provided does not permit a definitive and unequivocal conclusion that

ambient air SO2 concentrations recorded at the monitoring stations in the

zone of impact of the Molymex plant correspond, for the entirety of the

data, and with a commonly accepted margin of error for this type of situation, to the real values that occurred during the period analyzed.

In consequence, the interpretation of the results cannot be validated in

light of the limits and standards applicable to the Molymex plant.

Therefore, it is the technical opinion of this firm that the information provided does not support the assertion that “Molymex did not exceed the

limits applicable to it.”

For clarity in the interpretation of this technical opinion, this should not

necessarily be construed as an assertion to the contrary.155

5.7 Effects of Molymex Air Emissions on the Health of the

Population and Environment of Cumpas, Sonora

Coprodemac and some Cumpas residents assert that Molymex has

harmed the health of persons and animals and damaged the environment in the vicinity of the plant. The information gathered in this regard

is summarized in this section.

In a bulletin in which Coprodemac invites Cumpas residents to a

meeting about Molymex on 7 March 1998, the organization asserts that a

September 1997 report from the Sonora State Ministry of Public Health

determined that “there exists epidemiological evidence of health risks

and harm associated with the presence in the environment of smoke and

particles from the Molymex company in Cumpas... representing the primary cause of mortality during Molymex’s startup period, since the normal percentage mortality was 19.7 percent and it increased to 33.7

percent in the municipality.”156

As stated previously, the molybdenum sulfide roasting process

generates air emissions of SO2 and solid and liquid particles. SO2 is a

colorless gas with a characteristic acrid odor and bittersweet taste;

human beings can detect its taste in the air at concentrations as low as

0.3 ppm and by smell at concentrations from 0.5 to 0.8 ppm. Because of

this, populations exposed to peak ambient air SO2 concentrations, even

those of very short duration (less than five minutes), will detect the pres64 FACTUAL RECORD: MOLYMEX II SUBMISSION

156. IP-CCD, CDE section.
ence of this gas and, depending on the magnitude, duration, and frequency of these peaks, will experience effects of SO2 exposure. SO2 may

cause respiratory diseases, especially in children, the elderly and asthmatics, and can worsen pulmonary and heart problems. SO2-caused

health problems are worsened by the presence of particles and ozone.

Since particles and SO2 may have the same origin, i.e., come from the

same source, high levels of ambient air SO2 are generally associated with

high ground-level particle concentrations.157 High SO2 concentrations,

even for very short periods, can be particularly problematic for asthma

sufferers. Ambient levels around 1 ppm for periods as short as 10 minutes can affect healthy individuals engaging in vigorous outdoor activities. The EPA has documented the fact that in some localized situations,

5-minute SO2 concentrations greater than 0.6 ppm create health risks in

sensitive individuals. The Pan American Health Organization (PAHO)

refers to several studies documenting the intensification of asthmatic

episodes at concentrations of 0.003–0.1 ppm, and depending on length of

exposure, cases of conjunctivitis and other irritations at levels as low as

0.15 ppm.158

As discussed above, it is possible that SO2 near Molymex reaches

levels detectable by the population without exceeding the limit of

0.13 ppm as a 24-hour average if short-run peak concentrations are averaged with considerably lower values, for example on the order of

0.001 ppm, or if there are peak concentrations that would cause the

applicable limits to be exceeded but that are reported as lower levels due

to the analyzers’ limited range of 0.5 ppm. Moreover, the calibration

errors and/or long periods without data may result in recorded values

lower than the real values.159

In addition, Coprodemac and several Cumpas residents assert that

the Molymex emissions have poisoned cattle owned by ranchers living

near the plant due to acid rain and contamination of water sources allegedly caused by Molymex in the area. They maintain that vegetation

around Molymex has been “burned” by the emissions. On 5 October

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 65

157. In the reported results for particles smaller than 10 microns (PM10) in ambient air in

this area, relatively high values are observed, close to the limit applicable to the

Molymex plant.

158. “Monitoring of ambient sulfur dioxide and epidemiological risk assessment in

Cumpas, Sonora, 2000,” Paz-A. Enrique MD MPH DCD and Ruiz, Alfonso DVM

PhD (Environmental Health Advisor, Field Office PAHO-WHO, El Paso, Tx.);

Álvarez-H. Gerardo MC MSP and Velasco-C. Manuel MC (Department of Epidemiology, Ministry of Public Health, State of Sonora); Mada-V. Gerardo MC MSP (State

Public Health Laboratory, State of Sonora); and Navarro-C. René MC MSP (Health

Services Branch, Ministry of Public Health, State of Sonora).

159. See sections 5.6.3–5.6.5 of this factual record.
1998, Coprodemac sent a letter to Semarnap and Profepa stating that

farmers in Cumpas are reporting harvest losses and that they suspect

Molymex’s emissions to be the cause.160

The principal effect of SO2 in the environment is the formation of

acid rain, which damages forests, crops, houses, and buildings and contributes to the acidification of soils, rivers and lakes. SO2 is carried over

great distances and reacts to form particles that are deposited far from

the source. Hence the problems caused do not only affect areas near the

source.161

According to one Coprodemac member, the harm caused by

Molymex’s emissions to the health of Cumpas residents and the environment includes the following considerations:

...We have dozens of cases of congenital disease. We have had about a 100

percent increase in respiratory disease since Molymex started operation.

We have the highest cancer rates and the highest mortality rate in the State

of Sonora, the last three are government statistics. We have acute and

chronic molybdenosis [in] many Molymex workers. Some of these sick

workers tell us that Molymex is systematically firing or asking them to

resign. Some have settled out of court reportedly for the equivalent of US

$5,000 to $10,000. The ranchers reported that their vegetation is dying, and

the farmers that their crops are failing due to acid rain.162

Regarding harm to vegetation, they further state that:

During the month of September of this year [2002], vegetation was sampled in a radius of 1–2 km around the Molymex plant in Cumpas, Sonora.

Various species displaying disease symptoms were collected and a subsequent analysis detected the following:

The symptoms observed are sudden withering of the aerial part of the

plants with the appearance of dark patches, some total and others partial.

The roots appeared healthy both internally and externally. This undoubtedly indicates that the problem is caused by some phytotoxic environmental factor. The species sampled were buffelgrass, amaranth, burrobush

(Hymenoclea sp.), sorghum, sunflower, and purslane. Other species exhibiting the same symptoms were not analyzed. Along the river, many of the

poplars are completely burned.

66 FACTUAL RECORD: MOLYMEX II SUBMISSION

160. IP-CCD, section D. Agricultural.

161. Profepa note, “Molymex Problems,” 1 April 1995, IP-CCD, CDE section.

162. Letter from Antonio Heras, member of Comité Pro Defensa del Medio Ambiente de

Cumpas, to CEC Secretariat, 23 December 2001.
We have experienced this problem year after year since the Molymex

plant was established in Cumpas. There is no other plant here emitting

SO2. Dr. Thomas Nash, an acid rain expert from Arizona State University,

informed us that some species are more tolerant than others; this is why

the native vegetation does not wither uniformly and immediately but

rather gradually.

As I commented in my complaint of 20 September of this year, Molymex

has used the stack without filters for its nocturnal operation. In view of the

withering of the vegetation in this manner and the rise in respiratory diseases in the Municipality of Cumpas, it is imperative that you take immediate action to solve these problems.163

In another letter to the CEC Secretariat, they assert as follows:

The harm to vegetation in the Municipality of Cumpas was confirmed by a

well-known professor of phytopathology in Sonora, who declined to sign

his report for fear of reprisals from his superior, an intimate friend of the

governor. Instead, we went to Phoenix, Arizona, with Dr. Leathers of

Dominion Environmental Consultants on the 15th day of this month

[October 2002]. Dr. Leathers is an expert in the harmful effects of sulfur

dioxide on vegetation. He analyzed various species (sycamore, sorghum,

amaranth, buffelgrass, fig, apple, acacia, purslane and others) which I

brought him from the vicinity of Cumpas. Dr. Leathers confirmed that the

damage observed in these samples is due to sulfur dioxide. He told us that

in order to write a report he would have to go to Cumpas for several days

at a cost of some $12,000.00, money that we do not have at the moment.164

In light of the concerns raised by the community about the effects

of Molymex’s emissions on the environment and health, in 2000 the

Sonora state government arranged for the following studies to be carried

out during that year by the Sonora Ministry of Health in coordination

with PAHO and the Universidad de Sonora:165

• monitoring of ambient sulfur dioxide and epidemiological risk

assessment;

• determination of molybdenum in Cumpas soils;

• determination of blood lead levels in preschoolers, schoolchildren, and adults.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 67

163. Letter from Antonio Heras Durán to Director of Environmental Complaints of

Profepa, 26 September 2002.

164. Letter from Antonio Heras Durán to CEC Secretariat, 30 October 2002.

165. IP-Mex-GS.
The research report “Monitoring of Ambient Sulfur Dioxide and

Epidemiological Risk Assessment in Cumpas, Sonora, 2000” indicates

that no SO2 or PM10 levels exceeding the standards were found, nor was

the prevalence of health conditions associated with exposure to these

substances higher than the state average:166

Ambient air pollution caused by sulfur dioxide (SO2) is associated with

harmful effects on human health; the severity of the harm varies but centers around the respiratory and cardiovascular systems. As of 1996, in the

Sonoran town of Cumpas, the increased production by a molybdenum

processing company gave rise to citizen complaints of environmental contamination by sulfur dioxide and harm to the health of local residents

caused by SO2 exposure. In order to respond to these complaints, a

cross-sectional study was conducted with the object of identifying the

level of emissions of environmental contaminants such as SO2 and PM10,

and correlating these emissions with the incidence and prevalence of

respiratory, dermatological and allergic signs and symptoms exhibited by

the population. To determine the levels of these substances, measurements were made in and around homes with portable monitors, and the

results were compared with measurements made by mobile and fixed

monitors located in the community and two neighbouring communities.

No SO2 or PM10 levels were found to exceed the limits set out in the applicable Mexican Official Standards; nor did we observe a higher prevalence

than the state average of health conditions associated with exposure to

these substances. Portable “house-to-house” monitoring appears to be a

cost-effective method for detecting SO2 levels above 0.1 ppm and is useful

in identifying potential risks of exposure to this pollutant (p. 1).

This report further states that:

...As of 1996, the company increased the volume of its industrial process,

causing higher pollutant emissions which, according to information provided by the Ministry of the Environment, Natural Resources and Fisheries (Semarnap), greatly exceeded the standards, including those for

sulfur dioxide and molybdenum particles. These have been associated

with an increase in acute respiratory infections (ARI) in susceptible persons, particularly in young children and the elderly; an exacerbation of

coronary diseases and chronic obstructive disease, irritations of the respiratory tract and eyes, and other symptoms of a neurological nature.

68 FACTUAL RECORD: MOLYMEX II SUBMISSION

166. “Monitoring of ambient sulfur dioxide and epidemiological risk assessment in

Cumpas, Sonora, 2000,” Paz-A. Enrique MD MPH DCD and Ruiz, Alfonso DVM

PhD (Environmental Health Advisor, Field Office PAHO-WHO, El Paso, Tx.);

Álvarez-H. Gerardo MC MSP and Velasco-C. Manuel MC (Department of Epidemiology, Ministry of Public Health, State of Sonora); Mada-V. Gerardo MC MSP (State

Public Health Laboratory, State of Sonora); and Navarro-C. René MC MSP (Health

Services Branch, Ministry of Public Health, State of Sonora).
In this regard, sulfur dioxide is perhaps one of the most studied pollutant

particles [sic: pollutants] in recent decades, and its negative health effects

have varying degrees of severity. Among known harmful effects is the

triggering of asthmatic episodes at concentrations of 0.003–0.1 parts per

million (ppm), where 1 ppm is equal to 2.86 mg per square [sic: cubic]

meter. At a concentration of 0.15–2.0 ppm, and depending on exposure

time, from 1 hour up to 5 days, it causes conjunctivitis, tearing of the eyes,

bronchial hyperactivity, asthmatic episodes, acute and chronic bronchitis,

and dermatitis, and it has been linked to lung cancer, although this

latter link has not been proven; at 2-hour average concentrations of

5.0–15.0 ppm, it can cause mucosal hemorrhage, cardiopulmonary disturbance, and acute pulmonary edema (p. 2).

The report recommends additional research into the relationship

between Molymex’s production volume and ambient air SO2 levels, the

causes of the health conditions reported by the population, and other

aspects:

To supplement this analysis in future research, the quantity of raw material entering into the plant’s process, as well as the quantities of final product obtained in a given period of time, should be correlated with the

ambient air SO2 levels identified. This could not be done in the current

study because it was not possible that the company provide us with the

necessary information.

Furthermore, the symptoms mentioned by the population interviewed

were highly unspecific and could be caused by multiple factors or causal

agents such as dust, smoke, pollen, proximity of animals, or infectious

processes, making it difficult to establish conclusive causal associations.

For this reason, it is advisable to conduct new clinical, epidemiological,

and potential impact follow-up studies (p. 10).

The PAHO study measuring ambient air SO2 levels in the communities of Teonadepa, Cumpas and La Colonia between 22 June and

28 July 2000 concluded that “with the method used it was impossible

to detect ambient sulfur dioxide levels exceeding the standard

[NOM-022]” in the towns investigated. However, the monitoring conducted in this study was not done continuously for 24-hour periods, nor

was it done simultaneously in the three towns. The results were not correlated with plant activity or production levels, since the plant did not

provide the necessary information. Therefore, the PAHO study results

cannot be considered sufficient to establish conclusions about the validation of the perimeter monitors operated by Molymex nor the quality

of the data obtained with this equipment. In particular, it is impossible to

compare the results of this study with the values specified in NOM-022

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 69
since these values refer to 24-hour averages while the PAHO study

obtained 833 samples on 10 visits to 50 houses participating in the study,

resulting in an average of about 17 point values for each of the houses.167

The study on molybdenum in Cumpas soils conducted by the

Universidad de Sonora concluded the following:168

...The molybdenum concentrations in the soil samples taken in the vicinity

of the molybdenite concentrate roaster owned by Molymex S.A. de C.V.

near the town of Cumpas, Sonora do not exceed the standard (>5 ppm)

established for non-mineralized molybdenum areas; in addition, the anomalous values detected correspond to pollution typical of urban activities

(lubricants, oils, automotive emissions) (p. 9).

Meanwhile, the research on lead levels in children and adults in the

Municipality of Cumpas did not report health effects:169

An industrial facility processing molybdenum sulfides into molybdenum

oxides has been operating in the town of Cumpas since 1995. It uses roasting processes that generate molybdenum trioxide and sulfur dioxide particles as well as combustion gases and other substances. Although the

company made changes to its infrastructure with a view to limiting its pollutant emissions, there were complaints from the community calling for

the closing or relocation of the company and claiming that it was affecting

the health of the town’s residents and others living in neighbouring communities. One of these complaints alleged the existence of harm to health

caused by lead emissions into the environment as a by-product of the

molybdenum smelting process. According to this complaint, some schoolchildren exhibited high lead levels in blood samples processed by a private laboratory in Agua Prieta, Sonora. In order to respond to these

assertions and to investigate the possible health effects of lead-containing

pollutants on Cumpas residents, a cross-sectional study was conducted of

70 FACTUAL RECORD: MOLYMEX II SUBMISSION

167. “Technical opinion on SO2 Emissions, Submission SEM-00-005 (Molymex II),” 31

January 2003, technical information produced for the CEC Secretariat by Acosta y

Asociados.

168. “Determination of molybdenum contamination in soils in the vicinity of Cumpas,

Sonora,” Division of Engineering, Universidad de Sonora, 15 October 2000. Project

managers: M.C. Sergio Alan Moreno Zazueta and M.C. Guillermo Tiburcio

Munive.

169. “Determination of blood lead levels in preschoolers, schoolchildren, and adults in

the Municipality of Cumpas, Sonora, 2000,” produced by: Álvarez-H. Gerardo MC

MSP and Velasco-C. Manuel (Epidemiology Department, Ministry of Public

Health, State of Sonora), Navarro-C. René MC MSO (Health Services Branch, Ministry of Public Health, State of Sonora), Ortega, Luis MD MPH (Epidemiologist, Field

Office PAHO-WHO, El Paso, Tx.), Gameros-M. Mercedes MC (Arizona-Sonora

Binational Health Office), Paz-A. Enrique MD MPH DCD (Environmental Health

Advisor, Field Office PAHO-WHO, El Paso, Tx.), Mada-V. Gerardo MC MSP (State

Public Health Laboratory, Ministry of Public Health, State of Sonora).
5 towns in the Municipality of Cumpas with the objective of determining

capillary blood lead levels in preschoolers and schoolchildren as well as

venous blood lead levels in adult employees of the company. The blood

lead concentration averaged less than 10 μg/dl and reached a maximum

of 16 μg/dl. We did not find a relationship between blood lead levels in

children and adults in the five Cumpas towns and any possible harm to

health (p. 1).

The Sonora state government also provided the Secretariat with a

summary of the morbidity statistics and main causes of mortality for the

Municipality of Cumpas for 2000. However, the statistics were not

accompanied by other information that enables correlating them with

the serious health problems in the Municipality of Cumpas allegedly

caused by Molymex emissions. This type of analysis was not comprised

within the scope of the information developed by the Secretariat

through independent experts for this factual record, nor did the Secretariat receive additional information to clarify whether Molymex’s

emissions had any effect on mortality and morbidity levels in Cumpas.

Elsewhere, in February 2000, DataCenter170 produced a report

based on official documents, information available online, and interviews with Cumpas residents, which concluded as follows:171

The DataCenter finds that the Molymex plant is contributing to a deterioration [sic] in the health and livelihood of the more than 9,000 Cumpas

townspeople. These people are exposed daily to dangerous toxic emissions derived from molybdenum processing. The plant’s emissions are

damaging people’s health (respiratory ailments, lead poisoning, etc.), and

local crop production.

Both the company and the state government have been very reluctant to

listen to the Cumpas Committee for the Defense of the Environment

(Coprodemac), which has presented reliable evidence and testimony on

how the people of Cumpas are suffering.

In April 2001, the National Environmental Research and Training

Centre (Centro Nacional de Investigación y Capacitación Ambiental) conducted sampling for Semarnat “to attempt to identify possible impacts

on the ecosystem and health of the residents of Cumpas caused by the

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 71

170. DataCenter is an organization providing strategic information, analysis and

research training to social justice organizations <http://www.datacenter.org/

about/about.htm>.

171. Pollution and International Capital in the Sonora Desert: the Molymex Plant at Cumpas,

IP-CCD, “United States Civic Organizations” section.
operation of Molymex.” Metals in water, soil, plants, and citrus fruit, as

well as breathable particles (PM10) were analyzed. The report states as

follows:

Metals in water. The concentration of metals in the water samples analyzed was found to be below the detection limits, except for molybdenum

in samples 4 and 5 (river water from the southern part of the village and

well water at the Molymex plant) with concentrations of 0.010 and 0.034

mg/l, respectively.

Metals in soil. According to the criteria established by the Office of the Federal Attorney for Environmental Protection for inorganic toxics in regard

to restoration of contaminated soils...with the exception of an agricultural

sample (river bank in south agricultural zone) containing total chromium

and cadmium concentrations exceeding the specifications, the remaining

samples were within the limits.

The presence of vanadium, titanium, molybdenum and manganese is also

reported. According to [values tabulated by] the Canadian Council of

Ministers of the Environment, 1991, molybdenum exceeds allowable limits in the agricultural soil samples and inside the Molymex plant.

Metals in plants and citrus fruits. For the sample of plants and citrus fruits,

the presence of copper, manganese, and molybdenum was found; in the

citrus fruits alone, nickel, lead and titanium were found. Unfortunately,

no data were found in the information sources consulted on relationship

between these levels and damage to plants; therefore, it was impossible to

establish at this time whether these values may be affecting the ecosystem.

Breathable particles (PM10). The PM10 breathable particle limit for the protection of public health established in Mexican regulations is 150 μg/m3,

and therefore the results show that at the sites sampled in Cumpas,

Sonora, the PM10 concentration is less than one-fourth of the protection

limit.

Lead, also regulated in our country, has a protection limit of 10 μg/m3 as a

quarterly average and, although it is not totally comparable since our sampling took place over a 24-hour period, very low levels of this element

were found. Other elements such as cadmium, cobalt, chromium, copper,

manganese, nickel, vanadium and titanium were found at low levels.

With respect to molybdenum levels, with the exception of one sample,

concentrations around 1 μg/m3 were found at all monitoring stations.

There are no Mexican regulations for this element in the atmosphere but

there do exist international guideline values for fixed-source emissions

72 FACTUAL RECORD: MOLYMEX II SUBMISSION
which, in the Netherlands, the United Kingdom and Austria, fall in the

range of 5–15 mg/m3 as exposure indicators.172

The Sonora State Ministry of Public Health issued a report on

17 December 2002 corresponding to the assessment of environmental

and occupational risks implemented by Molymex in the context of

NOM-048-SSA1-1993.173 The report, based on which the authority determined that the company represents a low risk, states as follows:

That the implementation of NOM-048-SSA1-1993 by the company

MOLYMEX S.A. de C.V. produced internally consistent information, such

that with the available evidence based on measurements and monitoring;

pollutant dispersion models for SO2 before and after the operation of the

sulfuric acid plant; the monthly reports (containing 24-hour concentrations for each day of the month) for the SO2, TSP and PM10 monitoring stations; measurements and analytical tests for fixed-source (plant stack)

emissions; the various pollution control equipment and devices currently

in operation, including: three devices a series for control of particulate

matter (cyclone collector for coarse dust; one “sonic” and two electrostatic

precipitators for fine dust); a gas scrubbing plant that has the capacity to

reduce solid and liquid particles significantly; and a sulfuric acid plant

that achieves control of ambient air SO2 emissions on the order of 98 percent. As well as technical reports and final conclusions yielded by the various studies conducted to investigate harm to public health, some of them

carried out by the Ministry of Public Health of the State of Sonora through

the Epidemiology Division of the Health Services Branch (in collaboration

with the Pan American Health Organization [PAHO], the Children’s Hospital of the State of Sonora, and the State Blood Transfusion Centre); likewise, the studies to investigate the presence of possible contaminants in

the soil of Cumpas, Sonora and vicinity by researchers from the masters

program in metallurgy of the Universidad de Sonora; and, in general,

from the analysis of all the information generated, the environmental

monitoring, the monitoring of health effects on the population and individuals, the research into chemical, physical, and biological agents

assessed during the period from January 2000 to December 2001 in order

to determine the current type of risk represented by the company

Molymex S.A. de C.V., it may be determined that at the time this environmental and occupational health risk assessment was completed, in our

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 73

172. “Report of results of sampling conducted at Cumpas, Sonora” contained in the

undated note from Víctor Javier Gutiérrez Avedoy to Exequiel Ezcurra, sent by the

Director of the Sonora Federal Office of Semarnat to Francisco Pavlovich Robles of

Alianza Cívica in response to the latter’s request for environmental information

under LGEEPA Article 156 bis 3 by means of oficio No. D-0020/2001 of 17 May 2001.

173. Mexican Official Standard NOM-048-SSA1-1993, establishing the standard method

for assessment of risks to health as a consequence of environmental agents. Published in the DOF on 6 January 1996.
opinion the company Molymex S.A. de C.V. represents a LOW RISK.

[sic]174

5.8 Timeline

1994

February 11 The Sonora state office of Sedesol issued an OP to

Molymex (DS-139-4-SPA-126, first OP).

February 25 Molymex and the Sonora state office of Sedesol held a

clarification meeting on the first OP.

March 3 Molymex requested amendments to the first OP based

on the clarification meeting of 25 February.

May 27 The Sonora state office of Sedesol approved modifications to the first OP (DS-139-4-SPA-1449, first modification to first OP).

June 30 Molymet S.A. acquired the Molymex roaster from

Grupo Frisco.

October 29 Molymex set up an air quality monitoring network and

began measuring ambient air quality in Cumpas,

Teonadepa and Ojo de Agua.

1995

January 5 The Molymex furnace resumed operations.

February 8 Profepa conducted an inspection visit to Molymex in

response to a complaint filed February 7 by Cumpas

residents.

April 1 Sonora state office B39 of Profepa informed the head

of Profepa and the Deputy Attorney for Regulatory

Enforcement of the contamination in Cumpas and recommended the temporary closing of Molymex and various amendments to the plant’s OP.

April 3 Profepa ordered the Molymex roaster to be temporarily

and partially closed on the grounds that it had exceeded

the raw material loads and particle emission limits.

74 FACTUAL RECORD: MOLYMEX II SUBMISSION

174. Oficio SSP-SSS-DGRFS-02-2458, from the Director of Health Regulation and Promotion, Sonora State Ministry of Health, to the General Manager of Molymex, 17

December 2002.
April 7 Profepa lifted the temporary partial closing order.

1996

April 3 The Sonora state office of Semarnap amended the terms

of the OP as regards the solid and liquid particle and

SO2 emission limits and extended the compliance deadline for the SO2 limit from 1 May 2005, to 1 October 1997

(DS-SMA-UNE-LF-500, second amendment to first

OP).

May 23 Molymex and Coprodemac signed a set of agreements

and commitments relating to control and monitoring of

the plant’s emissions (reducing load by 30 percent, raising the stack, installing emission control equipment,

relocating monitoring stations and providing a mobile

station) as well as support for the community by Molymex (providing financing for improvement projects).

May 30 The Profepa state office in Sonora conducted an inspection visit to Molymex, finding that the company lacked

an official decision on environmental impact.

May 30 The Sonora state office of Semarnap issued a new OP

containing the commitments undertaken by Molymex

on May 23, restricting the production volume and

extending the compliance deadline for the sulfur dioxide limit from 1 October 1997, to 31 December 1997

(DS-SMA-UNE-LF-282, second OP).

August 16 Molymex filed an appeal against Profepa’s determination that the company had violated the LGEEPA and its

environmental impact regulation by failing to obtain an

environmental impact authorization prior to commencing its operations.

September Molymex purchased a mobile air quality monitoring

station and trained Coprodemac members to operate it.

December 3 The Sonora state office of Semarnap clarified to

Molymex that if the company could not comply with

the applicable limits as per the second OP by the deadline of 31 December 1997, “it would have to present a

technical and economic study making proposals and

providing the relevant justifications in order for the

Ministry to determine the appropriate course of

action.”

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 75
1997

April 10 Semarnap authorized the testing period for the

82–metre stack and permitted a gradual increase in the

furnace’s load from 21.4 ton/day to 30.6 ton/day, from

11 April to 9 May 1997.

May 16 The Employment Development Association of Cumpas

sent Semarnap a letter supporting the Sonora state

office of Semarnap’s proposal to award Molymex the

“Environmental Merit Prize” for 1997.

May 23 Coprodemac sent a letter to Semarnap stating that

Molymex had complied with all agreements and commitments entered into on 23 May 1996 and that it had

made notable contributions to the sustainable development of the community.

June 9 Molymex started operating a gas scrubbing plant and a

liquor treatment plant.

June 17 The Sonora state office of Semarnap amended the terms

of the second OP, authorizing Molymex to operate at

maximum capacity and extending the deadline for

compliance with the SO2 limit of 650 ppmv by 1,640

days starting 31 December 1997 (DFS-D-0986-97, first

amendment to second OP).

August 26 The Environmental Health Branch (Dirección General de

Salud Ambiental) of the Ministry of Health (Secretaría de

Salud) issued a sanitary permit to Molymex.

September 8 Coprodemac filed a citizen complaint asserting that

Molymex was inadequately disposing of its hazardous

waste (liquor treatment sludge).

December 4 The National Water Commission (Comisión Nacional del

Agua) in Sonora granted Molymex a concession to use

national waters.

1998

MarchOctoberCoprodemac sent letters to various municipal, state and

federal authorities, distributed leaflets, and held meetings and picket lines to denounce the contamination

allegedly caused by Molymex and to demand that it be

relocated.

76 FACTUAL RECORD: MOLYMEX II SUBMISSION
April 6 Coprodemac filed a document with the Attorney General of the Republic (Procurador General de la República)

stating its disagreement with a proceeding allegedly

brought by the latter against its president, Armando

Gallego Quintero, further to a criminal complaint filed

against him by Molymex in connection with an alleged

assault against a Molymex employee and defamation of

the company. Molymex subsequently withdrew the

charges.

April 22–24 The Molymex gas scrubbing plant was out of operation

due to a power outage.

April 27 Coprodemac blocked the entrance to the Molymex

plant with a picket line in which it recorded the participation of 870 persons.

April 30 Coprodemac filed a document with the Mayor of

Cumpas denouncing the failure by Molymex to comply

with the LGEEPA, the terms of its operating permit,

and the agreements of 23 May 1996, calling for Molymex to be closed and relocated to “an arid, sparsely

populated area” of the state and requesting that the

Governor of Sonora give a personal hearing to the concerns of the Coprodemac members.

June 10 The Sonora state office of Profepa conducted an inspection visit in relation to final disposal of the liquor treatment sludge and found none on the site of the plant nor

in the municipal dump.

July–October Profepa conducted an environmental audit of Molymex.

September 23 Coprodemac picketed in front of Molymex, blocking

the entrance to the plant. The Governor of Sonora was

present to hear the demonstrators’ concerns.

October 4 Coprodemac sent a letter to the President of INE

requesting that authorization to expand the Molymex

plant be denied.

October 5 The Municipality of Cumpas issued a land use permit

to Molymex.

October 9 Molymex filed an EIS and risk study for the “Molymex

Expansion Project” with INE.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 77
1999

January 29 INE gave authorization to Molymex to expand its facility.

May 20 The Sonora State Health Services Branch (Dirección General de Servicios de Salud) issued a technical report on epidemiological surveillance of respiratory diseases in the

Municipality of Cumpas and found no relationship

between the pollutants analyzed and health problems.

June 25 Molymex and Profepa signed an agreement indicating

the actions that Molymex would carry out further to its

environmental audit.

November 22 Profepa determined that the complaints filed by

Coprodemac starting in September 1997 in regard to

Molymex’s industrial waste were unfounded because

the waste consists of “liquor treatment sludge” and not

hazardous waste; managing it is not a hazardous activity; and it is not mandatory to return it to the country

from which the corresponding production inputs originated.

December 9 The Sonora State Congress determined that the request

for final closing of Molymex filed by Coprodemac and

other organizations on 8 September 1999 with the

Congress’s Environment and Ecology Commission and

its Health and Public Assistance Commission were

ungrounded.

December 18 Coprodemac and other civic organizations in Hermosillo held a protest allegedly attended by 300 persons in

front of the Molymex plant. Four of the organizers were

arrested but they were not prosecuted.

December

1999–July

14, 2000

Coprodemac and the civic organizations supporting it

held ongoing picket lines against Molymex in

Hermosillo and Cumpas.

2000

April 6 Academia Sonorense de Derechos Humanos and Domingo

Gutiérrez Mendívil filed with the CEC the submission

SEM-00-005 concerning Molymex, in accordance with

NAAEC Article 14.

78 FACTUAL RECORD: MOLYMEX II SUBMISSION
November 29 The Sonora state office of Semarnap issued an update of

the Molymex OP, ordering it to comply with the SO2

limits as of 31 December 2001 (DS-SMA-UNE-756, third

OP). This OP is still in effect.

2001

January 18 Mexico filed a response to submission SEM-00-005 concerning Molymex, in accordance with NAAEC Article

14(3).

March 8 The Profepa State Office in Sonora conducted an

inspection visit to Molymex in response to a citizen

complaint in order to verify compliance with air emission provisions. It found no irregularities.

December 10 Molymex started operating a sulfuric acid plant in

order to reduce its SO2 emissions.

December 20 The CEC Secretariat recommended to Council that a

factual record be developed in regard to submission

SEM-00-005 concerning Molymex.

December 31 Deadline for compliance by Molymex with the

650 ppmv SO2 limit for its stack emissions.

2002

March 18 The Association of Non-Governmental Organizations

of Sonora (Asociación de Organismos no Gubernamentales

de Sonora) filed a complaint of acts relating to the operation of Molymex in Cumpas that may constitute treasonable offenses against the country. It named the

President of Mexico, the Minister of the Environment

and Natural Resources, the Chairman of the Board of

Directors of Molymet, and the Assistant General Manager (Subdirector General) of Molymex.

April 4 Molymex was awarded ISO 14001 certification for its

environmental management system.

May 17 The CEC Council instructed the Secretariat to develop a

factual record in regard to submission SEM-00-005 concerning Molymex.

June 5 The Sonora state government and Semarnat recognized

Molymex for its environmental compliance efforts.

SUMMARY OF OTHER RELEVANT FACTUAL INFORMATION 79
July 10 Profepa issued Molymex a Clean Industry Certificate.

October 17 The Sonora state office of Profepa conducted an inspection visit to Molymex to verify compliance with the conditions of the environmental impact authorization of 29

January 1999. It found no irregularities.

6. Closing Note

Factual records provide information on alleged failures to effectively enforce the environmental law in North America that may support the Submitters, the Parties to the NAAEC, and other interested

members of the public in taking any action they consider appropriate in

relation to the matters addressed. In accordance with Council Resolution 02-03, this factual record provides information on whether Mexico

is failing to effectively enforce, with respect to Molymex, various provisions of its environmental law in relation to environmental impact, the

definition of zones in which polluting facilities may be sited, and ambient air SO2 concentrations.

Molymex S.A. de C.V. was incorporated in May 1979 as part of

Grupo Frisco and until 1991 operated a molybdenum roaster and other

facilities in Cumpas. On 30 June 1994, Grupo Frisco sold its Molymex

shares and the molybdenum roaster to the Chilean consortium Molymet

S.A. On 5 January 1995 Molymex resumed operations under an operating permit issued by Sedesol on 11 February 1994. The authorized production for the plant increased from 7,500 tons annually in 1994 to 50,400

tons annually as of the expansion project authorized in January 1999. As

of the resumption of operations by Molymex in 1994, several Cumpas

and Hermosillo residents and civic organizations accused the company

of violating environmental law and causing contamination that allegedly affected the health of the residents of the Municipality of Cumpas.

Molymex has obtained various certificates and awards relating to

environmental protection, including a Clean Industry Certificate from

Profepa and ISO 14001 certification for its environmental management

system, both in 2002. The company calculates that 55 percent of the US

$40 million it invested in the Cumpas plant since 1994 was devoted to

environmental protection infrastructure.

The submission asserts that Mexican environmental authorities

are failing to effectively enforce the environmental impact law in the

case of Molymex by allowing it to operate without an environmental

impact authorization. The environmental authority asserts that the EIA

procedure was not applicable because the obligation to perform an EIA

80 FACTUAL RECORD: MOLYMEX II SUBMISSION
was incorporated into Mexican law in 1982, it is of a purely preventive

nature, and its retroactive enforcement would be unconstitutional. Mexico further states that it has effectively enforced the environmental

impact law, since Molymex’s expansion project of 1998 underwent an

EIA and an authorization was issued for it. As detailed in this factual

record, the environmental authority’s arguments for not requiring

Molymex to obtain an environmental impact authorization involve legal

issues not yet resolved by the Mexican courts.

Another of the submission’s allegations is that Mexico is failing to

enforce LGEEPA Article 112 by failing to define the zone in which polluting industrial facilities may be sited in Cumpas, Sonora, applying criteria for the prevention of environmental contamination as prescribed

by that article. The Municipality of Cumpas issued a land use permit to

Molymex on 5 October 1998. According to the municipality, that permit

and the furnace marked on the map included in the Cumpas Municipal

Development Plan 1998–2000 constitute the definition of the zone in

which polluting facilities may be sited as required by LGEEPA Article

112.

The third matter to which this factual record refers is the effective

enforcement of NOM-022, which establishes the ambient air SO2 standard for the protection of public health. The submission asserts that in

the first amendment to its OP, Molymex was authorized to exceed that

standard. Mexico asserts that the standard set out in NOM-022 and the

stack emission limits established in the OP are separate issues, and that

Molymex did not exceed the applicable standard.

As of 31 December 2001, the 6-hour average limit for SO2 stack

emissions is 650 ppmv. Prior to that date, the Molymex roasting process

operated with authorization under various OPs and their amendments

but with no enforceable limit for SO2 emissions. As to concentration of

SO2 as air pollutant for the protection of health, NOM-022 provides that

these ambient SO2 concentrations shall not exceed a maximum 24-hour

of 0.13 ppm more than once a year and an annual arithmetic mean of

0.03 ppm. This NOM has been in force since the Molymex began operations on 5 January 1995. Moreover, since 17 June 1997, Molymex has

been subject to the maximum concentration levels set out in its contingency plan: alert phase, 1-hour average of 0.600 ppm SO2; alarm phase,

5-hour average of 0.400 ppm; and emergency phase, 24-hour average of

0.130 ppm. The independent experts consulted by the Secretariat concluded that it is possible that ambient air SO2 concentration exceeded the

NOM-022 standard even though the concentration at the stack did not

exceed the 650 ppmv limit, because this latter value is a 6-hour average.

CLOSING NOTE 81
Molymex measures sulfur dioxide in the roaster’s stack emissions

with a continuous monitor that operates since early August 2001. The

graphs of averages provided to the Secretariat show levels below the

limits. As regards ambient concentrations, Molymex has been operating

a continuous monitoring system for ambient SO2 in the vicinity of the

plant since October 1994. Mexico asserts that at the monitoring stations

installed by Molymex from 1994 to 2000, there was no day in which the

SO2 limit of 0.13 ppm as a 24-hour average was exceeded, and that during this same period the annual arithmetic mean of 0.03 ppm SO2 set by

NOM-022 was not exceeded. In the opinion of the independent experts

consulted by the Secretariat in this regard, it cannot be stated with certainty from the data contained in the monthly reports of continuous perimeter monitoring of SO2 in the vicinity of the Molymex plant that the

NOM-022 standards were not exceeded. The information does not support this assertion primarily because the data was collected with detectors whose detection capacity is insufficient (0–0.500 ppm, recording

greater concentrations as being equal to 0.500 ppm) and because there

are blank records and negative data in the reports.

SO2 may cause respiratory diseases, particularly in children, the

elderly, and asthmatics, and may worsen pulmonary and heart problems. High SO2 concentrations, even for very short periods, can be particularly problematic for asthma sufferers. Ambient levels around 1 ppm

for periods as short as 10 minutes may affect healthy individuals engaging in vigorous outdoor activity. The principal effect of SO2 in the environment is the formation of acid rain, which causes damage to forests,

crops, houses, and buildings and contributes to the acidification of soils,

rivers and lakes. Coprodemac and several Cumpas residents assert that

Molymex has caused harm to the health of persons and animals, and to

the environment in the vicinity of the plant. The information gathered

for this factual record did not enable the Secretariat to confirm the

alleged negative health and environmental effects, although all studies

conducted in this context recommended further research and continuous monitoring.

82 FACTUAL RECORD: MOLYMEX II SUBMISSION
APPENDIX 1

Council Resolution 02-03: Instruction to

the Secretariat of the Commission for

Environmental Cooperation (CEC) regarding the

assertion that Mexico is failing to effectively

enforce certain environmental laws regarding

the operation of the Molybdenum Trioxide

production facility by Molymex S.A. de C.V.,

located in the municipality of Cumpas in the

Mexican state of Sonora, Mexico (SEM-00-005)

17 May 2002

COUNCIL RESOLUTION 02-03

Instruction to the Secretariat of the Commission for Environmental

Cooperation regarding the assertion that Mexico is failing to effectively enforce certain environmental laws regarding the operation of

the Molybdenum Trioxide production facility by Molymex S.A. de

C.V., located in the municipality of Cumpas

in the Mexican state of Sonora, Mexico.

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of

the North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation of

factual records;

CONSIDERING the submission filed on the above-mentioned

matter by Academia Sonorense de Derechos Humanos, A.C. and

Domingo Gutiérrez Mendivil, and the response provided by the Government of the United Mexican States on January 18, 2001; and

HAVING REVIEWED the notification by the Secretariat of December 20, 2001, that the development of a factual record is warranted in

relation to certain assertions included in the submission (SEM-00-005);

HEREBY UNANIMOUSLY DECIDES:

TO INSTRUCT the Secretariat to prepare a factual record in accordance with Article 15 of the NAAEC and the Guidelines for Submissions on

Enforcement Matters under Articles 14 and 15 of the North American Agreement on Environmental Cooperation for the assertions set forth in Submission SEM-00-005 that Mexico is failing to effectively enforce Articles 28

paragraph III, 29 paragraphs IV and VI, 32 and 112 of the General Law on

Ecological Balance and Protection (Ley General del Equilibrio Ecológico y la

Protección al Ambiente–LGEEPA); and the Mexican Official Standard

NOM-022-SSA1/1993 with respect to operation of the Molybdenum

Trioxide production facility by Molymex S.A. de C.V., located in the

municipality of Cumpas in the Mexican state of Sonora, Mexico;

APPENDIX 1 85
TO DIRECT the Secretariat to provide the Parties with its overall

work plan for gathering the relevant facts and to provide the Parties with

the opportunity to comment on that plan; and

TO DIRECT the Secretariat to consider, in developing the factual

record, whether the Party concerned is “failing to effectively enforce its

environmental law” since the entry into force of the NAAEC on January

1, 1994. In considering such an alleged failure to effectively enforce, relevant facts that existed prior to January 1, 1994, may be included in the

factual record.

APPROVED BY THE COUNCIL.

86 FACTUAL RECORD: MOLYMEX II SUBMISSION
APPENDIX 2

Overall Plan to Develop a Factual Record with

Regard to Submission SEM-00-005

Secretariat of the Commission

for Environmental Cooperation

Overall Plan to Develop a Factual Record

Submission I.D.: SEM-00-005 (Molymex II)

Submitters: Academia Sonorense de Derechos Humanos, A.C.

Domingo Gutiérrez Mendívil

Party: Estados Unidos Mexicanos

Date of this plan: 28 May 2002

Background

On 6 April 2000, the Academia Sonorense de Derechos Humanos,

A.C., and Domingo Gutiérrez Mendívil (the “Submitters”) filed a submission with the Secretariat of the Commission for Environmental

Cooperation (CEC) in accordance with Article 14 of the North American

Agreement on Environmental Cooperation (NAAEC). The submission

asserts that Mexico is failing to effectively enforce its environmental law

in relation to the operation of a molybdenum plant by the company

Molymex, S.A. de C.V. (“Molymex”), located in the municipality of

Cumpas, Sonora, Mexico.

On 17 May 2002, the Council decided unanimously to instruct the

Secretariat to develop a factual record, in accordance with Article 15 of

the NAAEC and the Guidelines for Submissions on Enforcement Matters

under Articles 14 and 15 of the NAAEC (Guidelines), with respect to the

assertions set forth in Submission SEM-00-005, that Mexico is failing to

effectively enforce Articles 28 paragraph III, 29 paragraphs IV and VI, 32

and 112 of the General Law of Ecological Balance and Environmental

Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente–

LGEEPA),1 governing environmental impact and the definition of zones

in which polluting facilities may be sited, and Mexican Official Standard

APPENDIX 2 89

1. The transcriptions appearing in the submission correspond to the text of the

LGEEPA in force prior to the reform published in the Official Gazette of the Federation

on 13 December 1996. This, however, does not substantially affect the force of the

Submitter’s arguments, due both to the nature of the arguments and also to the fact

that the previous Articles 28, 29 and 32 are incorporated into the current LGEEPA

Articles 29 and 30. See also the SEM-00-005 (Molymex II) Article 15(1) notification (20

December 2001), p. 7.
NOM-022-SSA1/1993,2 regarding the concentration of SO2 in ambient

air, with respect to the operation of the molybdenum plant by the company Molymex, S.A. de C.V., located in the municipality of Cumpas,

Sonora, Mexico. The Council directed the Secretariat, in developing the

factual record, to consider whether the Party concerned “is failing to

effectively enforce its environmental law” since the entry into force of

the NAAEC on 1 January 1994. In considering such alleged failure, relevant facts existing prior to 1 January 1994 may be included in the factual

record.

Under Article 15(4) of the NAAEC, in developing a factual record,

“the Secretariat shall consider any information furnished by a Party and

may consider any relevant technical, scientific or other information:

(a) that is publicly available; (b) submitted by interested nongovernmental organizations or persons; (c) submitted by the Joint Public Advisory Committee; or (d) developed by the Secretariat or by independent

experts.”

Overall Scope of the Fact Finding

The submission asserts that Mexico is failing to effectively enforce

its environmental law in relation to Molymex, in the municipality of

Cumpas, Sonora. The submission asserts the alleged failure to effectively enforce Articles 28 paragraph III, 29 paragraphs IV and VI, 32 and

112 of the LGEEPA, governing the assessment of the environmental

impact of Molymex’s resumed activities in 1994. The Submitters also

assert that Molymex is located in an improper zone and that Article 112

paragraph II of the LGEEPA, establishing the municipal authority’s

responsibility to define the zones where polluting facilities may be sited,

has not been effectively enforced. Lastly, the Submitters assert the

alleged failure to effectively enforce NOM-022-SSA1/1993, establishing

the maximum concentration of SO2 in ambient air as a human health

protection measure.

To prepare the factual record, the Secretariat will gather and

develop information relevant to the facts concerning:

i) the alleged violations by Molymex of Articles 28 paragraph

III, 29 paragraphs IV and VI and 32 of the LGEEPA and of

NOM- 022- SSA1/1993; and the alleged failure by the Municipality of Cumpas to enforce Article 112 of the LGEEPA;

90 FACTUAL RECORD: MOLYMEX II SUBMISSION

2. NOM-022-SSA1/1993 – Environmental Health. Criterion for the assessment of ambient air

quality with respect to sulfur dioxide (SO2). Standard value for sulfur dioxide (SO2) concentration in ambient air, as a public health protection measure. Published in the Official

Gazette of the Federation on 23 December 1994.
ii) Mexico’s enforcement of these provisions, in the case of

Molymex; and

iii) the effectiveness of Mexico’s enforcement of these provisions, in the case of Molymex.

Overall Plan

Consistent with Council Resolution 02-03, execution of the overall

work plan will begin no sooner than 12 June 2002. All other dates are best

estimates. The overall plan is as follows:

• Through public notice or direct invitation, the Secretariat will invite

the Submitters, JPAC, members of the community of Cumpas,

Sonora, the local, state and federal authorities and the general public,

to submit relevant information within the scope of the fact-finding

described above. The Secretariat will explain the scope of the

fact-finding, providing sufficient information to enable interested

persons or nongovernmental organizations or JPAC to provide relevant information to the Secretariat (section 15.2 of the Guidelines)[mid

June 2002].

• The Secretariat will request information relevant to the factual record

from the appropriate federal, state and municipal Mexican authorities, and will consider any information provided by a Party (Articles

15(4) and 21(1)(a) of the NAAEC)[late June 2002]. Information will be

requested relevant to the facts regarding:

i) the alleged violations by Molymex of Articles 28 paragraph III,

29 paragraphs IV and VI and 32 of the LGEEPA and of NOM022-SSA1/1993, and the alleged failure by the Municipality of

Cumpas to enforce Article 112 of the LGEEPA;

ii) Mexico’s enforcement of these provisions, in the case of

Molymex; and

iii) the effectiveness of Mexico’s enforcement of these provisions, in

the case of Molymex.

• The Secretariat will gather the relevant technical, scientific or other

information that is publicly available, including from existing databases, information centers, libraries, research centers and academic

institutions [July through October 2002].

APPENDIX 2 91
• As appropriate, the Secretariat will develop, through independent

experts, technical, scientific or other information relevant to the factual record [July through October 2002].

• As appropriate, the Secretariat will gather relevant technical, scientific or other information for the development of the factual record,

from interested persons or nongovernmental organizations, JPAC or

independent experts [July through October 2002].

• In accordance with Article 15(4), the Secretariat will prepare the draft

factual record based on the information gathered and developed

[November through December 2002].

• The Secretariat will submit a draft factual record to Council. Any

Party may provide comments on the accuracy of the draft within 45

days thereafter, in accordance with Article 15(5) [January 2003].

• As provided by Article 15(6), the Secretariat will incorporate, as

appropriate, any such comments in the final factual record and submit it to Council [March 2003].

• The Council may, by a two-thirds vote, make the final factual record

publicly available, normally within 60 days following its submission,

in accordance with Article 15(7).

Additional Information

The submission, Mexico’s response, the Secretariat determinations, the Council Resolution, and a summary thereof are available

in the Registry on Citizen Submissions in the CEC home page at

<www.cec.org> or upon request to the Secretariat at the following

address:

CEC Secretariat

Submissions on Enforcement

Matters Unit (SEM Unit)

393, rue St-Jacques Ouest,

bureau 200

Montreal QC H2Y 1N9

Canadá

CCA / Mexico Liaison Office:

Atención: Unidad sobre Peticiones

Ciudadanas (UPC)

Progreso núm. 3,

Viveros de Coyoacán

México, D.F. 04110

México

92 FACTUAL RECORD: MOLYMEX II SUBMISSION
APPENDIX 3

Process for Gathering Information for the

Development of the Factual Record on

Submission SEM-00-005

(Examples of relevant information)

Secretariat of the Commission

for Environmental Cooperation

REQUEST FOR INFORMATION

for Development of the Factual Record

Submission SEM-00-005 (Molymex II)

20 June 2002

I. The factual record process

The Commission for Environmental Cooperation (CEC) of North

America is an international organization created under the North American Agreement on Environmental Cooperation (NAAEC) by Canada, Mexico and the United States. The CEC operates through three organs: a

Council, made up of the highest-level environmental official in each

member country; a Joint Public Advisory Committee (JPAC), composed

of five citizens from each country; and a Secretariat located in Montreal.

Article 14 of the NAAEC allows residents in North America to

inform the Secretariat, in a submission, that any member country (hereinafter, a Party) is failing to effectively enforce its environmental law.

This initiates a process of review of the submission, after which the

Council may instruct the Secretariat to prepare a factual record in connection with the submission. A factual record seeks to provide all relevant information on the effectiveness with which the Party has enforced

its environmental law with respect to the matter raised in the submission.

Under Articles 15(4) and 21(1)(a) of the NAAEC, in developing a

factual record, the Secretariat shall consider any information furnished

by a Party, and may ask a Party to provide additional information. The

Secretariat also may consider any information that is publicly available;

provided by the JPAC, the Submitters or other interested persons or

nongovernmental organizations; or developed by the Secretariat or

independent experts.

On 17 May 2002, the Council decided unanimously to instruct the

Secretariat to develop a factual record, in accordance with Article 15 of

the NAAEC and the Guidelines for Submissions on Enforcement Matters

under Articles 14 and 15 of the NAAEC (Guidelines), regarding the assertions made in submission SEM-00-005 that Mexico is failing to effectively enforce Articles 28 paragraph III, 29 paragraphs IV and V, 32, and

APPENDIX 3 95
112 of the General Law on Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y la Protección al Ambiente–

LGEEPA),1 with regard to environmental impact and the definition of

zones in which polluting facilities may be sited, and Mexican Official

Standard (Norma Oficial Mexicana–NOM) NOM-022-SSA1/19932 with

regard to SO2 concentration in ambient air, in relation to the molybdenum plant operated by Molymex, S.A. de C.V., in the municipality of

Cumpas, Sonora, Mexico (“Molymex”). The Council directed the Secretariat, in developing the factual record, to consider whether the Party

concerned “is failing to effectively enforce its environmental law” since

the entry into force of the NAAEC on 1 January 1994. In considering such

an alleged failure to effectively enforce, relevant facts that existed prior

to 1 January 1994 may be included in the factual record.

By means of this document, the Secretariat seeks information relevant to matters to be addressed in the factual record for the Molymex II

submission, SEM-00-005. The following sections provide background

on the submission and describe the type of information sought.

II. Molymex II submission

On 6 April 2000, Academia Sonorense de Derechos Humanos,

A.C., and Domingo Gutiérrez Mendívil filed a submission with the Secretariat of the CEC, asserting that Mexico is failing to effectively enforce

its environmental law in relation to the operation of the Molymex

molybdenum plant in Cumpas, Sonora, Mexico.

The alleged failures to effectively enforce the environmental law of

Mexico covered by this factual record refer to the environmental impact

assessment of the Molymex activities that commenced in 1994 (Articles

28 paragraph III, 29 paragraphs IV and VI, and 32 of the LGEEPA); the

definition of zones in Cumpas in which polluting facilities may be sited

(LGEEPA Article 112); and sulfur dioxide emissions allegedly exceeding

96 FACTUAL RECORD: MOLYMEX II SUBMISSION

1. The transcriptions contained in the submission correspond to the text of the LGEEPA

that was in force prior to the reforms published in the Official Gazette of the Federation (Diario Oficial de la Federación–DOF) of 13 December 1996. This, however, does

not substantially alter the sense of the Submitters’ arguments, due both to the nature

of the arguments and to the fact that the content of the former Articles 28, 29 and 32

has been incorporated into Articles 29 and 30 of the current text of the LGEEPA. See

also, in this regard, SEM-00-005 (Molymex II), Article 15(1) Notification to Council

(20 December 2001), p. 7.

2. NOM-022-SSA1/1993 – Environmental Health. Criterion for assessing ambient air quality

with respect to sulfur dioxide (SO2). Standard value for sulfur dioxide (SO2) concentration

in ambient air, as a public health protection measure. Published in the DOF of 23 December 1994.
the SO2 concentration limits in ambient air established for the protection

of public health (NOM-022-SSA1/1993). The Submitters assert the existence of health risks to the residents of Cumpas, Sonora, as well as various negative environmental impacts at that locality, allegedly caused

by molybdenum trioxide and sulfur dioxide emissions produced by

Molymex. The submission cites a 1995 report of the Office of the Federal

Attorney for Environmental Protection (Procuraduría Federal de

Protección al Ambiente–Profepa) expressing concern about the health

risks to the residents of Cumpas arising from the Molymex emissions.

Mexico filed a response to this submission on 18 January 2001. In

its response, the Party puts forward three arguments to dismiss the

assertion that it is failing to effectively enforce the environmental impact

assessment requirement: first, that environmental impact assessment

did not apply because it was not required when Molymex commenced

its operations; second, that environmental impact assessment is a purely

preventive procedure; third, that the relevant environmental impact

provisions were in fact enforced in regard to Molymex, since the expansion project of 1998 did undergo assessment and obtained the relevant

authorization. In regard to the other assertions, the response asserts

that the land-use permit issued to Molymex establishes the zoning for

polluting facilities in Cumpas, and that the company has not violated

NOM-022-SSA1/1993.

III. Request for information

The Secretariat of the CEC requests information relevant to the

facts concerning:

i) the alleged violations of Articles 28 (para. III), 29 (paras. IV

and VI) and 32 of the LGEEPA as well as NOM-022-SSA1/

1993 by Molymex; and the alleged failure by the Municipality

of Cumpas to enforce LGEEPA Article 112;

ii) Mexico’s enforcement of these provisions in the case of

Molymex; and

iii) the effectiveness of Mexico’s enforcement of these provisions

in the case of Molymex.

IV. Examples of relevant information

1. Information on Mexico’s enforcement of Articles 28 (para. III), 29

(paras. IV and VI) and 32 of the LGEEPA, as well as NOM-022-

APPENDIX 3 97
SSA1/1993 in the case of Molymex; and on the alleged omission by

the Municipality of Cumpas with respect to LGEEPA Article 112.

2. Information on any municipal, state or federal environmental law

enforcement policies or practices that apply to the alleged failures

described above, as well as on the manner in which they were

enforced in the case of Molymex.

3. Information on the effectiveness of Mexico’s enforcement of the

provisions in question in the case of Molymex, with regard to the

environmental impact assessment of the activities commenced in

1994.

4. Information on the effectiveness of Mexico’s enforcement of the

provisions in question in the case of Molymex, with regard to the

sulfur dioxide emissions that allegedly exceed the SO2 concentration limits in ambient air established for the protection of public

health, from the time that Molymex began operations in 1994 to the

present moment.

5. Information on the SO2 concentrations in ambient air at Cumpas,

Sonora, from the time that Molymex began operations in 1994 to

the present moment.

6. Information on the possible health effects on the population of

Cumpas, Sonora, due to Molymex’s alleged violation of the SO2

concentration limits in ambient air.

7. Additional information on the health and environmental effects

allegedly caused by Molymex, which are referred to by the Submitters and were identified by Profepa in 1995.

8. Information on the relationship between Molymex’s authorized

SO2 emission levels and the observance of the maximum SO2 concentration in ambient air established by NOM-022-SSA1/1993 for

the protection of public health.

9. Information on Molymex’s monitoring and reporting of its SO2

emissions.

10. Information on whether there exists a municipal urban development plan defining the zones in which polluting facilities may be

sited, and information enabling a determination of whether the

Molymex plant is located outside of such zones.

98 FACTUAL RECORD: MOLYMEX II SUBMISSION
11. Any other technical, scientific or other information that could be

relevant.

V. Additional background information

The submission, Mexico’s response, the Secretariat’s determinations, the Council Resolution, the overall plan to develop the factual

record, and other information are available in the Registry and Public

Files in the Citizen Submissions on Enforcement Matters section of the

CEC web site at <http://www.cec.org>. These documents may also be

requested from the Secretariat.

VI. Where to send information

Relevant information for the development of the factual record

may be sent to the Secretariat until 25 October 2002 at either of the following addresses:

Secretariat of the CEC

Submissions on Enforcement

Matters Unit (SEM Unit)

393, rue St-Jacques Ouest,

bureau 200

Montreal QC H2Y 1N9

Canada

Tel. (514) 350-4300

CCA/Mexico Liaison Office

Atención: Unidad sobre Peticiones

Ciudadanas (UPC)

Progreso núm. 3

Viveros de Coyoacán

México, D.F. 04110

México

Tel. (52-55) 5659-5021

For any questions, please send an e-mail to the attention of Carla

Sbert, at <info@ccemtl.org>.

APPENDIX 3 99

APPENDIX 4

Information Requests to Mexican Authorities

and List of Recipient Authorities

Letter to the Party requesting information for

development of the factual record for SEM-00-005

20 June 2002

Re: Development of factual record for submission

SEM-00-005 (Molymex II)

The Secretariat hereby requests Mexico to provide relevant information for preparation of the factual record in regard to submission

SEM-00-005 (Molymex II) in accordance with NAAEC Articles 15(4) and

21(1)(a).

As you are aware, on 17 May 2002 the Council resolved unanimously to instruct the Secretariat to develop a factual record in accordance with NAAEC Article 15 and the Guidelines for Submissions on

Enforcement Matters under Articles 14 and 15 of the North American Agreement on Environmental Cooperation regarding the assertions made in submission SEM-00-005 that Mexico is failing to effectively enforce Articles

28 paragraph III, 29 paragraphs IV and VI, 32 and 112 of the General Law

of Ecological Balance and Environmental Protection (Ley General del

Equilibrio Ecológico y la Protección al Ambiente—LGEEPA), governing

environmental impact and the definition of zones in which polluting

facilities may be sited, and Mexican Official Standard NOM-022-SSA1/

1993,1 regarding the concentration of SO2 in ambient air, with respect

to the operation of the molybdenum plant by the company Molymex,

S.A. de C.V., located in the municipality of Cumpas, Sonora, Mexico

(“Molymex”).

In accordance with NAAEC Articles 15(4) and 21(1)(a), the Secretariat shall, in developing the factual record, consider any information

furnished by a Party, and may also request additional information. Likewise, it may consider information that is publicly available or is provided by other NAAEC Parties, the JPAC, the submitters, or other

interested non-governmental organizations or persons, as well as information developed by the Secretariat and by independent experts.

APPENDIX 4 103

1. NOM-022-SSA1/1993 – Environmental Health. Criterion for the assessment of ambient air

quality with respect to sulfur dioxide (SO2). Standard value for sulfur dioxide (SO2) concentration in ambient air, as a public health protection measure. Published in the Official

Gazette of the Federation on 23 December 1994.
Attached please find the list of questions for which information is

requested from Mexico for the development of this factual record.

Kindly respond to this request by 13 September 2002.

Thank you for your attention to this matter.

Yours sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

Encl.

cc: [Environment Canada]

[US EPA]

CEC Executive Director

104 FACTUAL RECORD: MOLYMEX II SUBMISSION
Secretariat of the Commission

for Environmental Cooperation

Request for Information from Mexico to Develop the

Factual Record in regard to Submission SEM-00-005 (Molymex II)

20 June 2002

Submission SEM-00-005 asserts that Mexico is failing to effectively

enforce its environmental law with respect to the operation of the

Molymex molybdenum production plant in Cumpas, Sonora. The Submitters assert the presence of risks to the health of Cumpas residents and

various negative environmental impacts in that town, allegedly ensuing

from molybdenum trioxide and sulfur dioxide emissions by Molymex.

The Submission cites a 1995 report of the Office of the Federal Attorney

for Environmental Protection (Procuraduría Federal de Protección al

Ambiente–Profepa) expressing concern about the risks to the health of

the Cumpas population arising from Molymex’s emissions.

For the preparation of the factual record on this Submission, the

Secretariat is requesting additional information from the Party on the

effective enforcement of its environmental law in regard to environmental impact assessment of the Molymex activities initiated in 1994

(LGEEPA Articles 28 paragraph III, 29 paragraphs IV and VI, and 32);

the definition of zones in Cumpas where polluting industrial facilities

may be sited (LGEEPA Article 112); and sulfur dioxide emissions allegedly in violation of the ambient SO2 concentration limits established for

the protection of public health (NOM-022-SSA1/1993). In particular:

1. Provide information on any municipal, state, or federal policies or

practices that may be applicable in relation to the aforementioned

alleged failures, and on the manner in which they were applied in

the case of Molymex.

2. In the response, the Party puts forward three arguments to dismiss

the allegation of failure to effectively enforce the cited environmental impact provisions of LGEEPA (Articles 28 paragraph III, 29

paragraphs IV and VI, and 32) with respect to Molymex.

2.1. Mexico asserts in its response that environmental impact

assessment was not required when Molymex commenced its

operations and that the procedure could not be applied retroactively.

APPENDIX 4 105
2.1.1. Based on two 1924 decisions of the Mexican Supreme

Court (Suprema Corte de Justicia de la Nación), the Submitters argue that where the public or social interest so

dictates, a legal provision may be given retroactive

effects.2 The Party did not make reference to this argument in its response but merely cited a previous

Supreme Court decision to the contrary. Provide additional information on this point.

2.1.2. Under Transitory Article 5 of the Regulation to the

LGEEPA respecting Environmental Impact (Reglamento

de la LGEEPA en Materia de Impacto Ambiental), in force

from 8 June 1988 to 29 June 2000,3 the Party was empowered to require Molymex to file an environmental

impact statement even if the company’s activities had

begun prior to the coming into force of that requirement. Explain the reasons why the environmental

authority decided not to use this power.

2.1.3. Since the plant’s activities were interrupted in 1991, the

application of the environmental impact procedure to

the activities initiated in 1994 would not appear to be

retroactive. Where an activity is ongoing in nature

and the activity is interrupted (such as in the case of

Molymex’s activities in 1991), it is unclear that the

application of a provision after the resumption of the

activity (apparently in 1994) is retroactive. Provide

additional information on this point.

2.2. Mexico argues in its response that environmental impact

assessment is a purely preventive procedure. However, it

would appear that the Molymex activities initiated in 1994

were different from the previous ones and that, therefore,

the use of preventive mechanisms would be appropriate.

According to the Submitter, the plant resumed its activities in

1994 with a 10-hearth furnace instead of a 7-hearth furnace

and using a different raw material, apparently causing

greater environmental impacts.

2.2.1. Describe the Molymex activities interrupted in 1991

and explain whether the interruption was total or partial.

106 FACTUAL RECORD: MOLYMEX II SUBMISSION

2. See Submission, p. 7.
2.2.2. Describe the activities with which Molymex resumed

its operations in 1994 and explain the differences and

similarities with the activities carried out until 1991.

Explain how the environmental authority took these

issues into consideration in its decision not to require

Molymex to conduct an environmental impact assessment.

2.2.3. The response states that there are other instruments

with which the environmental authority can regulate

possible environmental impacts. Detail the instruments

used in this manner in the case of Molymex.

2.3. Mexico’s response asserts that the environmental impact

provisions were in fact enforced with respect to Molymex

since the 1998 expansion project underwent assessment and

obtained the relevant authorization.

2.3.1. Explain whether the environmental impact assessment

for the 1998 expansion project covered, in any sense, the

activities resumed in 1994.

2.3.2. Explain why the application of the environmental

impact procedure to the 1998 project was not considered retroactive, as was the case with respect to the

activities initiated in 1994.

3. Provide a copy of the Cumpas urban development masterplan to

which the Submitter refers, indicate its period of effectiveness, and

explain whether it is applicable to Molymex.4

4. Clarify whether that plan or another municipal urban development plan for Cumpas, Sonora defines the zones in which polluting industrial facilities may be sited.

5. Explain how the Municipality of Cumpas applied the “general criteria for protection of the atmosphere” contemplated in LGEEPA

Article 112 in that urban development plan.

APPENDIX 4 107

3. When it was repealed by a new regulation. We refer to this regulation and not the one

currently in force, since it is the one that was in force when the submission was filed.

4. See Submission, p. 11 and Appendix IV.
6. Detail the location of the Molymex plant with respect to the

corresponding plan (if one exists) and clarify whether or not the

Molymex plant is located within an improper zone.

7. Provide information, covering the period from the commencement

of operations by Molymex in 1994 to date, on the effective enforcement of Mexican Official Standard NOM-022-SSA1/1993 by Mexico with respect to Molymex in regard to sulfur dioxide emissions

allegedly in violation of the ambient SO2 concentration limits

established for the protection of public health.

8. In the response and in a report dated 17 January 2001 (by the

Sonora State Branch of Profepa’s Office of the Deputy Attorney for

Industrial Auditing, submitted to the Semarnap Legal Affairs

Branch),5 it is asserted that the company is in compliance with its

air emission obligations6 and several conditions of its operating

permit. According to the report, the company has remitted its perimeter monitoring data to the authority since October 1994. Mexico’s response further asserts that according to the annual results

for the period 1995–2000 at each of the four perimeter monitoring

stations, sulfur dioxide concentrations were within the limits of

NOM-022-SSA1/1993.7 Provide copies of these results (stack emission and ambient SO2 concentration data) as well as the reports and

other documents relating to the acts of inspection and enforcement

corresponding to these assertions.

9. Clarify whether Molymex’s operating permit authorized the company to produce emissions in excess of the NOM-022-SSA1-1993

standards established for the protection of human health.

10. The limit established by NOM-022-SSA1/1993 refers to ambient

SO2 concentration, whereas the limits and the deadline extension

set for Molymex specifically (in oficios DFS-D-0986-97 and

DS-SMA-UNE-LF-282) refer to emissions measured directly at the

plant’s stack. Explain the relationship between the SO2 emission

levels set for Molymex specifically and the observance of the ambient SO2 concentration standard set by NOM-022-SSA1/1993 for

the protection of human health.

108 FACTUAL RECORD: MOLYMEX II SUBMISSION

5. See Response, Appendix 10.

6. Specifically, this document asserts compliance with Articles 13, paragraphs I and II;

16; 17, paragraphs I–VIII; 23, and 26 of the Regulation to the LGEEPA respecting Air

Pollution Prevention and Control (presumably, since the document does not specify).

7. See Response, p. 16.
11. By means of an oficio dated 17 June 1997, the deadline for compliance with the sulfur dioxide emission limit of 650 ppmv is

extended by 1,640 days starting 31 December 1997 (i.e., until June

2002), and the plant is also authorized to operate at its installed

capacity. This oficio further indicates that the company must comply with the ambient SO2 emission limits set by oficio DFS-D0114-97. Provide a copy of oficio DFS-D-0114-97.8

12. Provide information on the ambient SO2 concentrations at

Cumpas, Sonora from the commencement of operations by

Molymex in 1994 to date.

13. Provide information on the alleged health effects or risks to the

population of Cumpas or the environment which the Submitters

(and Profepa in 1995) ascribed to SO2 emissions from the Molymex

plant. Detail the follow-up given to the Profepa report of 1995.

14. Provide any other technical, scientific or other information that

may be relevant.

APPENDIX 4 109

8. See Response, Appendix 8, p. 2.
Mexican Authorities Recipient of

a Request for Information for the Development

of the Factual Record on Submission

SEM-00-005

FEDERAL STATE

Ministry of the Environment

and Natural Resources

(SEMARNAT)

Minister’s Office

International Affairs

Coordination Unit (UCAI)

Constitutional Government of the

State of Sonora

Ministry of Economic Development and Productivity

Mining Development Branch

Office of the Federal Attorney

for Environmental Protection

(PROFEPA)

Sonora State Office

International Affairs Unit

(Mexico, D.F.)

Sonora Ministry of Public Health

and Health Services

Director’s Office

Health Services Branch

Environmental Health

Department

Health Regulation and

Promotion Branch

Epidemiology Directorate

Sonora State Children’s Hospital

Sonora State General Hospital

MUNICIPAL

Office of the Mayor of Cumpas

110 FACTUAL RECORD: MOLYMEX II SUBMISSION
APPENDIX 5

Information Requests to NGOs,

JPAC and other Parties to the NAAEC

Form Letter to NGOs

4 July 2002

Re: Request for information relevant to the factual record

for submission SEM-00-005 (Molymex II)

The Secretariat of the Commission for Environmental Cooperation

of North America recently began the process of preparing a “factual

record” regarding an assertion that Mexico is failing to effectively

enforce its environmental law in relation to the operation of a molybdenum plant by the company Molymex, S.A. de C.V. (“Molymex”), located

in the municipality of Cumpas, Sonora, México. This assertion was

made in a “submission” filed with the Secretariat in April 2000 by

the Academia Sonorense de Derechos Humanos, A.C., and Domingo

Gutiérrez Mendívil.

I am writing to invite you to submit information relevant to the factual record. The attached Request for Information explains the citizen

submissions process and factual records, gives background about the

so-called Molymex II submission (SEM-00-005), describes the scope of

the information to be included in the factual record for that submission,

and provides examples of information that might be relevant. We will

accept information for possible consideration in connection with the factual record until 25 October 2002.

We appreciate your consideration of this request and look forward

to any relevant information you are able to provide. Please feel free to

contact the Secretariat if you have questions. Contact information is provided at the end of the Request for Information.

Sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

Enclosure

APPENDIX 5 113
Memorandum to the

Joint Public Advisory Committee

Memorandum

DATE: 28 June 2002

À / PARA / TO: Chair, JPAC

CC: JPAC Members, CEC Acting Executive Director,

JPAC Liaison Officer

DE / FROM: Legal Officer, Submissions on Enforcement

Matters Unit

OBJET /

ASUNTO / RE: Request for information relevant to the factual

record for submission SEM-00-005 (Molymex II)

As you know, the CEC Secretariat recently began the process of

preparing a factual record for submission SEM-00-005 (Molymex II).

This submission was filed with the Secretariat in April 2000 by the Academia Sonorense de Derechos Humanos, A.C., and Domingo Gutiérrez

Mendívil. Consistent with Council Resolution 02-03, the factual record

will focus on the assertion that Mexico is failing to effectively enforce

Articles 28 paragraph III, 29 paragraphs IV and VI, 32 and 112 of the

General Law of Ecological Balance and Environmental Protection (Ley

General del Equilibrio Ecológico y la Protección al Ambiente—LGEEPA),

governing environmental impact and the definition of zones in which

polluting facilities may be sited, and Mexican Official Standard NOM022-SSA1/1993,1 regarding the concentration of SO2 in ambient air, with

respect to the operation of the molybdenum plant by the company

Molymex, S.A. de C.V., located in the municipality of Cumpas, Sonora,

Mexico (“Molymex”).

I am writing to invite the JPAC to submit information relevant to

the factual record, consistent with Article 15(4)(c) of the NAAEC. The

attached Request for Information, which has been posted on the CEC

website, gives background about the Molymex II submission, describes

114 FACTUAL RECORD: MOLYMEX II SUBMISSION

1. NOM-022-SSA1/1993 – Environmental Health. Criterion for the assessment of ambient air

quality with respect to sulfur dioxide (SO2). Standard value for sulfur dioxide (SO2) concentration in ambient air, as a public health protection measure. Published in the Official

Gazette of the Federation on 23 December 1994.
the scope of the information to be included in the factual record, and provides examples of information that might be relevant. We will accept

information for possible consideration in connection with the factual

record until 25 October 2002.

We appreciate your consideration of this request and look forward

to any relevant information you are able to provide. Please feel free to

contact me at (514) 350-4321 or csbert@ccemtl.org if you have questions

regarding this request or the factual record process.

APPENDIX 5 115
Letter to the Other Parties of the NAAEC

(Canada and US)

26 June 2002

Re: Invitation to provide information relevant to the factual

record for submission SEM-00-005 (Molymex II)

As you know, the CEC Secretariat recently began the process of

preparing a factual record for submission SEM-00-005 (Molymex II),

consistent with Council Resolution 02-03. I am writing to invite the

[Canadian][the United States] Party to submit information relevant to

the factual record, in accordance with Article 15(4) of the NAAEC.

The attached Request for Information, which has been posted on

the CEC website, gives background about the Molymex II submission,

describes the scope of the information to be included in the factual

record, and provides examples of information that might be relevant.

We will accept information for consideration in connection with the factual record until 25 October 2002.

We appreciate your consideration of this request and look forward

to any relevant information you are able to provide. Please feel free to

contact me at (514) 350-4321 or csbert@ccemtl.org if you have questions

regarding this request.

Sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

cc: SEMARNAT

[US EPA]

[Environment Canada]

CEC Acting Executive Director

Enclosure

116 FACTUAL RECORD: MOLYMEX II SUBMISSION
Nongovernmental organizations and individual

recipients of requests for information

for the development of the factual

record in regard to Submission SEM-00-005

Academia Sonorense de Derechos Humanos, A.C.

Ciudadanos por el Cambio Democrático

Molibdenos y Metales, S.A. (Molymet)

Molymex, S.A. de C.V.

University of Arizona

U.S. – Mexico Border Environment Program

Udall Center for Studies in Public Policy

Universidad de Sonora

División de Ciencias Biológicas y de la Salud

Dirección de Investigación y Postgrado

APPENDIX 5 117

APPENDIX 6

Information Gathered for the Development

of the Factual Record on Submission

SEM-00-005 (Molymex II)

Information gathered for the development of the factual record

on submission SEM-00-005 (Molymex II)

1 Letter to CEC requesting preparation

of a factual record in the case of

Molymex.

Comité Pro Defensa del

Medio Ambiente

de Cumpas

(COPRODEMAC;

Heras Durán, A.)

12/23/01 n/a COPRODEMAC

(Heras Durán, A.)

12/27/01

2 Video about Molymex, 4 minutes in

length

Visual Images Productions 12/22/01 n/a COPRODEMAC

(Heras Durán, A.)

12/27/01

3 Oficio No. UCAI/3580/02 with additional information from the Environmental Assessment and Risk Branch

(Dirección General de Impacto and

Riesgo Ambiental).

SEMARNAT-UCAI

(García Velasco, M.)

08/09/02 IP-Mex-DGIRA1 SEMARNAT

(García Velasco, M.)

08/20/02

4 Oficio No. S.G.P.A.-DGIRA.-DIA.-

0643/02 issued by the Office of the

Deputy Minister of Management for

Environmental Protection

(Subsecretaría de Gestión para la

Protección Ambiental), Environmental Assessment and Risk Branch in

response to the request for information for development of the factual

record.

SEMARNAT –

Environmental Assessment

and Risk Branch

(Juárez Palacios, J.R.)

08/05/02 IP-Mex-DGIRA SEMARNAT

(García Velasco, M.)

08/20/02

5 Oficio No. UCAI/3693/02 with information from Profepa comprising

thirteen Appendices.

SEMARNAT

(García Velasco, M.)

08/16/02 IP-Mex-Profepa22 SEMARNAT

(García Velasco, M.)

08/27/02

6 Oficio O.A.I/419/02 No. 03916 to

Deputy Director for Legal and Multilateral Affairs with comments and

information on the Molymex plant.

PROFEPA

(Munguía Aldaraca, N.)

08/14/02 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

7 Appendix No. I: Perimeter monitoring

of SO2 for 1994.

Molymex, S.A. de C.V. 1994 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

8 Appendix No. II: Perimeter monitoring of SO2 for 1995.Molymex, S.A. de C.V. 1995 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

Appendix No. III:

9 Perimeter monitoring of SO2 for

1996.

Molymex, S.A. de C.V. 1996 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

10 Oficio No. DCA-SD-XII-01-96 to

SEMARNAP Federal Officer in

Sonora with air quality monitoring

information on sulfur dioxide and

PM10 for November 1996.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

12/06/96 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

11 Oficio No. DCA-SD-1-01-97 to

SEMARNAP Federal Officer in

Sonora with air quality monitoring

information on sulfur dioxide and

PM10 for December 1996.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

01/08/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy

1. Information provided by Environmental Impact and Risk Branch, SEMARNAT.

2. Information provided by Federal Attorney for Environmental Protection (PROFEPA).
Appendix No. IV:

12 Perimeter monitoring of SO2 for

1997.

Molymex, S.A. de C.V. 1997 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

13 Oficio No. DCA-SD-III-01-97 to

SEMARNAP Federal Officer in

Sonora with air quality monitoring

information on sulfur dioxide, PM10 for

February 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

03/07/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

14 Oficio No. DCA-SD-IV-01-97 to

SEMARNAP Federal Officer in

Sonora with air quality monitoring

information on sulfur dioxide and

PM10 for March 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

04/03/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

15 Oficio No. DCA-SD-V-01-97 to

SEMARNAP Federal Officer in

Sonora with air quality monitoring

information on sulfur dioxide, PM10

for April 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

05/05/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

16 Oficio No. DCA-SD-VI-01-97 to

SEMARNAP Federal Officer in

Sonora with air quality monitoring

information on sulfur dioxide, PM10

for May 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/11/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

17 Oficio No. DCA-07-08/97-01 to Federal Officer of SEMARNAP with

monitoring information for June and

July 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/07/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

18 Oficio No. DCA-04-08/97-04 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for August 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

09/04/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

19 Oficio No. DCA-04/10/97-04 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for September 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

10/04/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

20 Oficio No. DCA-06-11/97-01 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for October 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

11/06/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

21 Oficio No. DCA-03-11/97-36 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for November 1997.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

11/03/97 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

Appendix No. V:

22 Perimeter monitoring of SO2 for

1998.

Molymex, S.A. de C.V. 1998 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

23 Oficio No. DCA-06-02-98-07 to

SEMARNAP Federal Officer in

Sonora with perimeter monitoring

information on SO2 for January 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

02/06/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

24 Oficio No. DCA-04-03-98-10 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for February 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

03/04/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

122 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
25 Oficio No. DCA-02-04-98-01 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for March 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

04/02/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

26 Oficio No. DCA-17-06-98-16 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for May 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/17/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

27 Oficio No. DCA-0306/98-50 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for June 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/03/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

28 Oficio No. DCA-1008/98-77 and

ISO-9002 certificate to SEMARNAP

Federal Officer in Sonora with monitoring information for July 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/10/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

29 Oficio No. DCA-0809/98-80 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for August 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

09/08/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

30 Oficio No. DCA-0710/98-85 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for September 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

10/07/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

31 Oficio No. DCA-0411/98-102 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for October 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

11/04/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

32 Oficio No. DCA-0412/98-118.

ISO-9002 Certificate to Federal Officer in Sonora with monitoring information for November 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

12/04/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

33 Oficio No. DCA-1101/99-06 to

SEMARNAP Federal Officer in

Sonora with monitoring information

for December 1998.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

01/11/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

Appendix No. VI:

34 Perimeter monitoring of SO2 for

1999.

Molymex, S.A. de C.V. 1999 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

35 Oficio No. DCA-0802/99-28

ISO-9002 certificate. Monitoring

records for January 1999.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

02/08/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

36 Oficio No. DCA-0303/99-52 Monitoring records for February 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

03/03/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

37 Oficio No. DCA-0904/99-94 Monitoring records for March 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

04/09/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

38 Oficio No. DCA-07-V-99/95 Monitoring records for April 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

05/07/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

39 Oficio No. DCA-14-VI-99/97 Monitoring records for May 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/14/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

40 Oficio No. DCA-12-VII-99/118 Monitoring records for June 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

07/12/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

APPENDIX 6 123

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
41 Oficio No. DCA-04-VIII-99/125 Monitoring records for July 1999.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/04/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

42 Oficio No. DCA-07-09-99/130 Monitoring records for August 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

09/07/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

43 Oficio No. DCA-04-IX-99/148 Monitoring records for September 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

10/04/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

44 Oficio No. DCA-07-XII-99/104 Monitoring records for October 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

12/07/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

45 Oficio No. DCA-07-12-99/175 Monitoring records for November 1999.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

12/07/99 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

46 Oficio No Appendix No. I: Perimeter

monitoring of SO2 for 1994..

DCA-05-I-00/04 Monitoring records

for December 1999.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

01/05/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

Appendix No. VII:

47 Perimeter monitoring of SO2 for

2000.

Molymex, S.A. de C.V. 2000 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

48 Oficio No. DCA-08-01-00/09. Monitoring records for January 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

02/08/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

49 Oficio No. DCA-07-03-00/21 Monitoring information for February 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

03/07/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

50 Oficio No. DCA-06-04-00/31 Monitoring information for March 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

04/06/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

51 Oficio No. DCA-04-05-00/43 Monitoring information for April 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

05/04/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

52 Oficio No. DCA-06-06-00/58 Monitoring information for May 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/06/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

53 Oficio No. DCA-10-07-00/65 Monitoring information for June 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

07/10/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

54 Oficio No. DCA-04-08-00/71 Monitoring information for July 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/04/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

55 Oficio No. DCA-05-09-00/81 Monitoring information for August 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

09/05/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

56 Oficio No. DCA-05-10-00/91 Monitoring information for September

2000.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

10/05/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

57 Oficio No. DCA-06-11-00/101 Monitoring information for October 2000.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

11/06/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

58 Oficio No. DCA-05XII-00/113 Monitoring information for November

2000.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

12/05/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

59 Oficio No. DCA-05-I-01/03 Monitoring information for December

2000.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

01/05/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

Appendix No. VIII:

60 Perimeter monitoring of SO2 for

2001.

Molymex, S.A. de C.V. 2001 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

124 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
61 Oficio No. DCA-06-II-01/10. Perimeter monitoring of SO2 for January

2001.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

02/06/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

62 Oficio No. DCA-13-III-01/22 Monitoring information for February 2001.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

03/13/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

63 Oficio No. DCA-09-IV-01/27 Monitoring information for March 2001Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

04/09/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

64 Oficio No. DCA-10-V-01/46. Monitoring information for April 2001.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

05/10/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

65 Oficio No. DCA-12-VI-01/56. Monitoring information for May 2001.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/12/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

66 Oficio No. DCA-09-VII-01/66. Monitoring information for June 2001.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

07/09/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

67 Oficio No. DCA-09-VIII-01/76. Monitoring information for July 2001.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/09/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

68 Oficio No. DCA-06-IX-01/80 Monitoring information for August 2001.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

09/06/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

69 Oficio No. DCA-05-X-01/95 Monitoring information for September

2001.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

10/05/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

70 Oficio No. DCA-09-XI-01/101 Monitoring information for October 2001.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

11/09/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

71 Oficio No. DCA-10-XII-01/120 Monitoring information for November

2001.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

12/10/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

72 Oficio No. DCA-09-I-01/07 Monitoring information for December

2001.

Molymex, S.A. de C.V.

(Bustamante Cerda, A.)

01/09/02 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

Appendix No. IX:

73 Perimeter monitoring of SO2 for

2002.

Molymex, S.A. de C.V. 2002 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

74 Oficio No. DAS-21-III/02-23. Perimeter monitoring of SO2 for February

2002.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

03/21/02 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

75 Oficio No. DAS-12-V/02-33 Monitoring information for April 2002.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

05/14/02 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

76 Oficio No. DAS-17-VII/02-50 Monitoring information for June 2002.Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

07/17/02 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

Appendix No. X:

77 Procedures to verify licenses. PROFEPA-Sonora IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

78 Inspection Report No. 260398-

SV-Q-028. Inspection Order No.

PFPA-DS-SV-0095/98.

PROFEPA-Sonora 03/26/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

79 Inspection Report No. 08032001-

SV-Q-001 Inspection Order No.

PFPA-DS-SV-0106/2001 from

PROFEPA-Sonora for Molymex.

PROFEPA-Sonora 03/08/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

APPENDIX 6 125

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
Appendix No. XI:

80 Copies of operating licenses. Ministry of Social

Development, Sonora

Office

(Chávez Méndez, E.)

1994-2000 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

81 Oficio No. DS-139-4-SPA-126 Operating license.Ministry of Social

Development, Sonora

Office

(Chávez Méndez, E.)

02/11/94 IP-Mex-Profepa2;

IP-Molymex

SEMARNAT

(García Velasco, M.)

and Molymex, S.A.

de C.V. (Carvajal

Galindo, A.)

08/27/02;

11/15/02

82 Appendix XI-a: Ref. SEHS-046/C94

to Sonora State Office, Ministry of

Social Development with the information filed for granting of the

Molymex operating license.

Molymex, S.A. de C.V.

(Moreno Turrent, M.)

03/03/94 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

83 Appendix XI-b: Oficio No.

DS-139-4-SPA-1449. Amendments

to Molymex license.

Ministry of Social

Development, Sonora

Office

(Chávez Méndez, E.)

05/27/94 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

84 Appendix XI-c: Oficio No.

DS-SMA-UNE-LF-282 to Assistant

General Manager of Molymex, S.A.

de C.V. with amendments to the

operating license for Molymex.

SEMARNAP, Office in

Sonora (Gandara Camou,

E.)

05/30/96 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

85 Appendix XI-d: Oficio No. SMA-UNELF-0590 to Assistant General Manager of Molymex, S.A. de C.V. with

conditions on operating license.

SEMARNAP, Office in

Sonora (Gandara Camou,

E.)

12/03/96 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

86 Appendix XI-e: Oficio No. DFSD-0986-97 to Assistant General

Manager of Molymex after analysis

of technical and economic study,

proposals, and justifications for sulfur

dioxide emission control filed by

Molymex as a requirement in Oficio.

No. SMA-UNE-LF-0590.

SEMARNAP, Office in

Sonora (Gandara Camou,

E.)

06/17/97 IP-Mex-Profepa2;

IP-CCD;3

IP-Molymex4

SEMARNAP

(García Velasco, M.);

COPRODEMAC

(Baldenegro, L.L.)

(O’Leary, R.M.)

Molymex, S.A. de

C.V. (Carvajal

Galindo, A.);

08/27/02;

10/10/02;

11/15/02

87 Appendix XI-f: Oficio

No. DS-SMA-UNE-756.

Environmental Registration Number

MOLMK2602311 with update of

Molymex operating license.

SEMARNAT, Office in

Sonora (Luna Urquídez,

J.L.)

11/29/00 IP-Mex-Profepa2;

IP-CCD;

IP-Molymex

SEMARNAP

(García Velasco, M.);

COPRODEMAC

(Baldenegro, L.L.)

(O’Leary, R.M.)

Molymex, S.A. de

C.V. (Carvajal

Galindo, A.);

08/27/02;

10/10/02;

11/15/02

Appendix XII:

88 Appendix XII-a: Oficio No.

PFPA-DS-SV-442/95. Folio No.

OLC-070495-006/95. Administrative

Decision No. C28/95.

PROFEPA Office in

Sonora (Celis Salgado, P.)

04/03/95 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

89 Appendix XII-b: Conditional order

to rescind closing order No.

PFPA-DS-SV-442/95. Folio

No. OLC-070495-006/95.

PROFEPA Office in

Sonora (Celis Salgado, P.)

04/07/95 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

126 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy

3. Information provided by Ciudadanos por el Cambio Democrático.

4. Information provided by Molymex.
90 Appendix XII-c: Oficio No. PFPADS-UJ-0570/2000. Decision to close

Administrative File No. 28/95.

PROFEPA, Office in

Sonora (Morachis López,

J.R.)

03/14/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

Appendix XIII:

91 Appendix XIII-a: Oficio No. CGAESUEPL-016/00 from SEMARNAP

Legislative Branch Liaison Unit

(Unidad de Enlace con el Poder

Legislativo) to Congressional Standing Committee requesting an investigation of the degree of toxicity of the

minerals produced by the Molymex

plant.

SEMARNAP

(Bustillos Roqueñi, J.)

02/08/00 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

92 Appendix XIII-b: Oficio No.

EOO.SVI.DGIFC.-918/01 from

Profepa to Academia Sonorense

de Derechos Humanos.

PROFEPA

(Roque Álvarez, A.)

09/11/01 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

93 Appendix XIII-c: Oficio No. 854-98 to

Assistant General Manager of

Molymex granting industrial land use

permit to Molymex.

Office of the Mayor of

Cumpas

(Hoyos Medina, J.M.)

09/07/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

94 Ratification of the land use permit

issued by the Municipality of

Cumpas to Molymex.

Government of the

State of Sonora

(Ibarra Legarreta, M.)

09/29/98 IP-Mex-Profepa2 SEMARNAT

(García Velasco, M.)

08/27/02

95 Oficio: UCAI/3782/02 Response of

the SEMARNAT, Federal Office in

Sonora to the CEC’s request for

information.

SEMARNAT

(García Velasco, M.)

08/20/02 IP-Mex-SemarnatD.Sonora5

SEMARNAT

(García Velasco, M.)

08/30/02

96 Appendix 1a: Printed reports on sulfur dioxide concentration and meteorological parameters,

October-December 1994, Molymex

plant in Cumpas, Sonora.

Molymex, S.A. de C.V. Oct.-Dec.

1994

IP-Mex-SemarnatD.SonoraSEMARNAT

(García Velasco, M.)

08/30/02

97 Appendix 1b: Information in

CD-ROM on Molymex monitoring

data for 1995–2002.

Molymex, S.A. de C.V. 1995-2002 IP-Mex-SemarnatD.SonoraSEMARNAT

(García Velasco, M.)

08/30/02

98 Appendix 2: Four tables: Number of

24-hour SO2 exceedance days and

annual arithmetic average, Ojo de

Agua, Teonadepa, Cumpas and

mobile stations, Cumpas, Sonora,

Mexico 1995–2000.

SEMARNAT 1995-2000 IP-Mex-SemarnatD.SonoraSEMARNAT

(García Velasco, M.)

08/30/02

99 Appendix 3: Update of operating

license. Analysis and conclusions on

license update application.

SEMARNAT 01/29/01 IP-Mex-SemarnatD.SonoraSEMARNAT

(García Velasco, M.)

08/30/02

100 Appendix 4: Oficio No. DFSD-0114-97 Information from

SEMARNAT, Federal Office in

Sonora, Environment Section

(Subdelegación de Medio

Ambiente), Environmental Standards

Unit (Unidad de Normatividad

Ecológica), on air quality monitoring

report, May 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

04/10/97 IP-Mex-SemarnatD.SonoraSEMARNAT

(García Velasco, M.)

08/30/02

APPENDIX 6 127

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy

5. Information provided by SEMARNAT Office in Sonora.
101 Oficio No. UCAI/3830/02 with copy

of oficio from Mayor (Presidente

Municipal) of the Municipality of

Cumpas, Sonora to the SEMARNAT,

Federal Officer in Sonora with additional information for the development of the factual record.

SEMARNAT-UCAI

(Guzmán Sandoval, H.)

08/23/02 IP-Mex-AC6 SEMARNAT

(Guzmán

Sandoval, H.)

09/04/02

102 Appendix 1: Oficio 0446/2002 to

SEMARNAT, Federal Officer in

Sonora.

Municipality of Cumpas,

Sonora

(Ballasteros Guzmán, R.)

08/08/02 IP-Mex-AC SEMARNAT

(Guzmán

Sandoval, H.)

09/04/02

103 Appendix 2: Municipal Development

Plan 1998–2000. Municipality of

Cumpas, Sonora.

Mayor of Cumpas, Sonora

(Hoyos Medina, J.M.)

12/14/98 IP-Mex-AC SEMARNAT

(Guzmán Sandoval,

H.)

09/04/02

104 Appendix 3: Oficio No. 926/98.

Industrial land use authorization for

the lot named “La Media Legua” and

Subdivision A of the lot named

“ONAVEÑO”.

Mayor of Cumpas, Sonora

(Hoyos Medina, J.M.)

10/05/98 IP-Mex-AC;

IP-Molymex

SEMARNAT

(Guzmán

Sandoval, H.) and

Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

09/04/02;

11/15/02

105 Appendix 4: Official Bulletin No. 13

containing publication of Molymex

industrial land use authorization,

Oficio No. 926/98.

Office of the Mayor of

Cumpas, Sonora

02/14/00 IP-Mex-AC;

IP-Molymex

SEMARNAT

(Guzmán

Sandoval, H.) and

Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

09/04/02;

11/15/02

106 Oficio No. 134/02 from Mining Development Branch, actions taken by

Executive Branch in the case of

Molymex, and response.

Government of Sonora,

Ministry of Economic

Development and

Productivity

(Salas Piza, G.)

08/27/02 IP-Mex-GS7 Government of the

State of Sonora,

Ministry of Economic

Development and

Productivity

(Salas Piza, G.)

09/05/02

107 Appendix 1: Record of agreements

and commitments of 23 May 1996

between Molymex and Comité de

Protección del Medio Ambiente de

Cumpas with the participation of the

federal, state, and municipal authorities.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.) and

Comité de Protección del

Medio Ambiente de

Cumpas

(Martínez Arvizú, J.)

05/23/96 IP-Mex-GS Government of the

State of Sonora,

Ministry of Economic

Development and

Productivity

(Salas Piza, G.)

09/05/02

108 Appendix 2: Conclusions on night

time metal stack emissions (1998).

Oficio No. 233/98 to Coprodemac.

Government of Sonora,

Ministry of Economic

Development and

Productivity

(Salas Piza, G.)

10/28/98 IP-Mex-GS Government of the

State of Sonora,

Ministry of Economic

Development and

Productivity

(Salas Piza, G.)

09/05/02

109 Appendix 3: Ambient sulfur dioxide

monitoring and epidemiological risk

assessment in Cumpas, Sonora,

2000: determination of blood lead

levels in preschool and school-age

children and adults of the Municipality of Cumpas, Sonora, 2000.

Paz-A. Enrique, Alvarez-H.

Gerardo, Velasco-C.

Manuel Mada-V. Gerardo,

Navarro-C. René,

Ruiz Alfonso

02/00/01 IP-Mex-GS;

IP-Molymex

Government of the

State of Sonora,

Ministry of Economic

Development and

Productivity

(Salas Piza, G.) and

Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

09/05/02;

11/15/02

128 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy

6. Information provided by Municipality of Cumpas.

7. Information provided by Mining Development Branch, Government of the State of Sonora.
110 Appendix 4: Environmental recognition award issued to Molymex by the

Government of the State of Sonora

and SEMARNAT.

Government of Sonora

(Hernández Armenta, J.)

and SEMARNAT

(Luna Urquídez, J.L.)

06/05/02 IP-Mex-GS Government of the

State of Sonora,

Ministry of Economic

Development and

Productivity

(Salas Piza, G.)

09/05/02

111 Oficio UCAI/3925/02 to the CEC with

additional information from Profepa

for development of the Molymex II

factual record.

SEMARNAT

(Guzmán Sandoval, H.)

09/02/02 IP-Mex-Profepa8 SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

112 Appendix 1: Table of environmental

investments by Molymex.

PROFEPA 1994-2002 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

Appendix 2:

113 List of ISO certificates. Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/16/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

114 ISO 14001 certificate, environmental

management system EBE 01066.

Validity period: 04/04/2002–

31/05/2005

SGS International

Certification Services

E.E.S.V.

(Anciaux, G.)

04/04/02 IP-Mex-Profepa;

IP-Molymex

SEMARNAT

(Guzmán Sandoval,

H.); Molymex, S.A.

de C.V. (Carvajal

Galindo, A.)

09/13/02;

10/08/02

115 ISO 9001:2000 certificate, quality

system QBE-97241. Initially certified

as of 12/1997. Validity period

11/04/2002–30/04/2005.

SGS International

Certification Services

E.E.S.V.

(Anciaux, G.)

04/11/02 IP-Mex-Profepa;

IP-Molymex

SEMARNAT

(Guzmán Sandoval,

H.); Molymex, S.A.

de C.V. (Carvajal

Galindo, A.)

09/13/02;

10/08/02

116 Clean Industry Award for environmental compliance.Government of the State of

Sonora and SEMARNAT

06/05/02 IP-Mex-Profepa;

IP-Molymex

SEMARNAT

(Guzmán Sandoval,

H.); Molymex, S.A.

de C.V. (Carvajal

Galindo, A.)

09/13/02;

10/08/02

117 Oficio No. BOO.A.A.-D.G.O. 2290/00

to Molymex establishing the term of

the Agreement signed with Profepa,

i.e., until 28 June 2002.

PROFEPA

(De la Cruz Nogueda, J.)

08/14/00 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

Appendix 3:

118 Oficio No. DGPCA.0604/02 to Director, International Affairs Office, with

List of Appendices in relation to the

Agreement on Actions Ensuing from

the Environmental Audit (Convenio

de Concertación de Acciones

Resultantes de la Auditoría

Ambiental) between Profepa and

Molymex S.A. de C.V.

PROFEPA

(Thomas Torres, L.)

08/16/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

119 Letter on information to be submitted

to the CEC.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/19/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

120 Appendix 3a: Agreement and Plan of

Works and Activities Ensuing from

the Environmental Audit, 25 June

1999, between Profepa and

Molymex S.A. de C.V.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/19/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

APPENDIX 6 129

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy

8. Information provided by Federal Attorney for Environmental Protection (PROFEPA).
Appendix 3b:

121 Oficio No. PFPA-DS-SAA-012/2002

Follow-up Inspection Visit Order from

Profepa to Molymex.

PROFEPA

(Claussen Iberry, O.)

01/24/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

122 Oficio No. PFPA-DS-SAA-017/2002

attesting that on 6 February 2002, a

follow-up visit was conducted to verify compliance with the action plan.

PROFEPA

(Claussen Iberry, O.)

02/11/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

123 Minutes of the working meeting

between Profepa and Molymex S.A.

de C.V. to review the environmental

audit files for the latter’s facilities.

SEMARNAT

(Bustamante Cerda, A.)

02/06/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

124 Oficio No. PFPA-DS-SAA-313/2001

attesting that on 21 November 2001,

a follow-up visit to Molymex facilities

was conducted to verify compliance

with the action plan.

PROFEPA

(Claussen Iberry, O.)

11/23/01 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

125 Minutes of the working meeting

between Profepa and Molymex S.A.

de C.V. to review the environmental

audit files for the latter’s facilities.

SEMARNAT

(Bustamante Cerda, A.)

11/21/01 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

Appendix 3c:

126 Oficio PFPA-DS-SJ-0281/2002

Administrative Decision without

sanction, Administrative File No.

202/2001 and official notice.

PROFEPA

(Claussen Iberry, O.)

03/19/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

127 Oficio PFPA-DS-SJ-0586/2001

Administrative Decision without

sanction, Administrative File

No. 20/2001 and official notice.

PROFEPA

(Claussen Iberry, O.)

03/11/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

Appendix 3d:

128 Oficio No. S.A.A.-D.G.O.C.A.-

0870/02 concluding the commitments acquired as a result of the

Coordination Agreement of 25 June

1999 between Profepa and

Molymex, S.A. de C.V.

PROFEPA

(Álvarez Larrauri, L.R.)

06/03/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

129 Note on Clean Industry Certificate to

Molymex, S.A. de C.V.

PROFEPA

(Álvarez Larrauri, L.R.)

03/11/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

130 Note confirming to Molymex that

the company is being awarded the

Clean Industry Certificate.

PROFEPA

(Álvarez Larrauri, L.R.)

06/03/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

131 Appendix 3e: Oficio No. S.A.A.-

D.G.O.C.A. – 0226/02 to Profepa

Officer in State of Sonora requesting

various information on Molymex.

PROFEPA

(Álvarez Larrauri, L.R.)

02/18/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

132 Appendix 3f: Oficio No. PFPA-DSSAA-030/2002 to Director, Audit

Operation and Control, Office of the

Deputy Attorney for Environmental

Auditing (Subprocuraduría de

Auditoría Ambiental), providing the

information requested.

PROFEPA Office in

Sonora (Claussen Iberry,

O.)

03/04/02 IP-Mex-Profepa SEMARNAT

(Guzmán

Sandoval, H.)

09/13/02

130 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
133 Complaint filed with Director, Environmental Complaints, Profepa,

informing latter of sampling conducted and observations.

Heras Durán, A. 09/26/02 n/a Heras Durán, A. 10/01/02

134 Oficio No. D-0020/2001-220238 to

Alianza Cívica with report of results

of sampling conducted in Cumpas,

Sonora; locator map of Molymex and

air quality monitoring stations; and

information on molybdenum toxicology.

SEMARNAT, Sonora

Office (Luna Urquídez,

J.L.)

05/17/01 IP-Mex-SemarnatD.SonoraSEMARNAT,

Sonora Office (Luna

Urquídez, J.L.)

10/08/02

135 Report of results of sampling conducted in Cumpas, Sonora; locator

map of Molymex and air quality monitoring stations; and information on

molybdenum toxicology.

SEMARNAT

(Gutiérrez Avedoy, V.J.)

undated IP-Mex-SemarnatD.SonoraSEMARNAT,

Sonora Office (Luna

Urquídez, J.L.)

10/08/02

136 Shipping document for shipping of

molybdenum concentrate imported

from Japan into Mexico.

Locher Evers International

(Locher, C.)

04/15/02 n/a Heras Durán, A. 10/08/02

137 Letter to United States Customs

requesting names of companies

exporting molybdenum raw materials

for processing by Molymex plant.

COPRODEMAC

(Heras-Duran, A.)

03/01/02 n/a Heras Durán, A. 10/08/02

138 Response by United States Customs

Service, document No. FOI

02-2600-0003 to Coprodemac.

Arizona Customs

Management Center

(Sweeney, B.)

03/15/02 n/a Heras Durán, A. 10/08/02

139 Public complaint filed with Federal

Justice Department (Ministerio

Público Federal).

Asociación de Organismos

No Gubernamentales del

Estado de Sonora

(O’Leary Franco, R.M;

Pavlovich Robles, F.;

Gutiérrez Mendívil, D.)

03/18/02 n/a Heras Durán, A. 10/08/02

140 Request to Notary Public of Cumpas

to certify that Molymex is producing

continuous night time emissions of

smoke and gases from the metal

stack, which lacks any filtering

device, and that said emissions originate directly from its furnaces.

COPRODEMAC

(Heras-Durán, A.;

Montaño Frisby, V.;

Hoyos García, J.M.)

09/02/02 n/a Heras Durán, A. 10/08/02

141 Attestation that the Notary Public of

Cumpas refused to notarize a document presented to him stating that

Molymex is in violation of Mexican

environmental law by emitting toxic

gas and smoke from its metal stack.

COPRODEMAC

(Heras-Durán, A.;

Montaño Frisby, V.;

Hoyos García, J.M.;

Hernández Hernández, B.;

Córdova Vásquez, J.M.;

Vega Germán, M.)

09/02/02 n/a Heras Durán, A. 10/08/02

142 List of signatures of residents of the

Municipality of Cumpas who assert

that the Government of Mexico is

failing to effectively enforce its environmental law with respect to the

molybdenum plant operated by

Molymex.

COPRODEMAC

(Gallego Quintero, A.)

10/09/02 n/a Heras Durán, A. 10/08/02

143 Letter to the CEC complaining of the

situation in Cumpas caused by

Molymex’s actions.

n/a 10/00/02 n/a COPRODEMAC

(Heras Durán, A.)

10/08/02

APPENDIX 6 131

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
144 Video of sampling of Molymex stack

emissions.

COPRODEMAC

(Gallego Quintero, A.)

04/00/98 n/a COPRODEMAC

(Heras Durán, A.)

10/08/02

145 Video: Sampling and Molymex stack

emissions. Meeting with authorities,

1998.

COPRODEMAC

(Gallego Quintero, A.)

04/28/98 n/a COPRODEMAC

(Heras Durán, A.)

10/08/02

146 Video of demonstration in front of

Molymex, arrest of NGO leaders on

19 December 1999, expansion of

Molymex in July 2000 and demonstration on Environment Day 2000.

COPRODEMAC

(Gallego Quintero, A.)

12/18/99 n/a COPRODEMAC

(Heras Durán, A.)

10/08/02

147 Document to Governor of the State

of Sonora demanding the immediate

closing and relocation of Molymex.

COPRODEMAC 01/23/00 n/a COPRODEMAC

(Heras Durán, A.)

10/08/02

148 Letter to Coprodemac stating opinion

on soil analysis results obtained by

the XRF method and sent by

Coprodemac; various Internet articles relating to molybdenum toxicity.

University of Arizona,

Department of Soil,

Water, and Environmental

Science (Artiola, J.)

06/06/00 n/a COPRODEMAC

(Heras Durán, A.)

10/08/02

149 Various newspaper articles. COPRODEMAC 12/22/99 n/a COPRODEMAC

(Heras Durán, A.)

10/08/02

150 Video on Molymex smoke in

Cumpas.

COPRODEMAC

(Heras Durán, A.)

02/15/02 n/a COPRODEMAC

(Heras Durán, A.)

10/08/02

151 Report on application of resources

provided by Molymex, 1997–2000.

Municipality of Cumpas,

Sonora

(Hoyos Medina, J.)

09/00/99 n/a Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

10/08/02

152 Molymex pamphlets – Sustainable

Development – Molybdenum and

Sulfuric Acid.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

03/00/02 n/a Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

10/08/02

153 Bimonthly newsletter, El Amanecer

Serrano, Molymex plant public relations, July 2001.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

07/00/01 n/a Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

10/08/02

154 Bimonthly newsletter, El Amanecer

Serrano, Molymex plant public relations, August 2002.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

08/00/02 n/a Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

10/08/02

155 Bimonthly newsletter, El Amanecer

Serrano, Molymex plant public relations, December 2001.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

12/00/01 n/a Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

10/08/02

156 Clean Industry Certificate No.

O/I/26/089 pursuant to LGEEPA

Article 38 Bis Paragraph IV.

PROFEPA

(Campillo García, J.)

07/10/02 n/a Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

10/08/02

157 Newsletter of the International

Molybdenum Association, London,

United Kingdom.

International Molybdenum

Association

07/00/02 n/a Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

10/08/02

158 Photos of the Molymex plant. Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

undated n/a Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

10/08/02

159 Documentation filed with the CEC

for the Molymex II factual record –

Molymex vs. Cumpas, presentation

with 4 photos and photocopies of

local newspaper articles on

Molymex in Cumpas, Sonora.

Ciudadanos por el Cambio

Democrático

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

132 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
Section 1 (CDE):

160 Oficio No. DS.139-4-SPA-1449 to

Molymex giving notice of amendments to operating license, issued in

Oficio No. DS.139-4-SPA-126 of 11

February 1994, by Sonora Office.

Ministry of Social

Development,

Sonora Office

(Chávez Méndez, E.)

05/27/94 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

161 Letter to SEMARNAP Federal Officer in Sonora supplemental to Oficio

No. DCA-IX-010-/96.

Molymex, S.A. de C.V. 10/04/96 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

162 Oficio No. 001 from Coprodemac to

SEMARNAP with conditions for

siting of Molymex in Cumpas.

COPRODEMAC

(Gallego Quintero, A.)

10/04/96 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

163 Oficio No. DS-SMA-UNE-LF-500 to

Molymex. Environmental impact

assessment for Molymex operating

license – Results of technical

assessment.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

04/03/96 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

164 Oficio No. 6. List of proposals of priority works and signed agreement in

which Molymex undertakes to perform the agreement under terms set

by the environmental and health

authorities.

COPRODEMAC

(Gallego Quintero, A.)

05/23/96 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

165 Application for authorization to

SEMARNAP Office in Sonora to conduct testing of all systems, equipment, facilities and personnel of the

Molymex plant.

COPRODEMAC

(Gallego Quintero, A.)

03/14/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

166 Oficio No. DS-SMA-UNE-CM-591 to

Molymex, S.A. de C.V. Response on

report of ambient air quality monitoring of May 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

06/20/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

167 Oficio No. DFS-D-0114-97 to

Molymex authorizing the testing

period under the terms indicated.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

04/10/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

168 Oficio No. DS-SMA-UNE-CM-454

proceeding with the environmental

contingency plan during the testing

period, epidemiological monitoring

program, and siting of mobile air

quality monitoring station.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

04/25/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

169 Oficio 0013 to Ministry of Public

Health, State of Sonora, requesting

result of toxic chemical study of

industrial waste from Molymex plant

in Cumpas, Sonora.

COPRODEMAC

(Gallego Quintero, A.)

08/31/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

170 Oficio No. DS-SMA-UNE-CM-879 to

Molymex attesting that the SO2 and

PM10 concentrations for the month of

September 1997 as measured at the

Ojo de Agua, Teonadepa, Cumpas

and mobile stations are within the

limits set out in standards

NOM-022-SSA1-1993 and

NOM-025-SSA1-1993.

SEMARNAP, Federal

Office in Sonora

(Gandara Camou, E.)

10/16/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

APPENDIX 6 133

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
171 Oficio No. DS-SMA-UNE-CM-940 to

Molymex attesting that the SO2 and

PM10 concentrations for the month of

October 1997 as measured at the

Ojo de Agua, Teonadepa, Cumpas

and mobile stations are within the

limits set out in standards

NOM-022-SSA1-1993 and

NOM-025-SSA1-1993.

SEMARNAP,

Federal Office in Sonora

(Gandara Camou, E.)

11/28/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

172 Document produced by Coprodemac

after a civic meeting at which the

mining/metallurgical complex of the

Molymex plant was rejected.

COPRODEMAC

(Gallego Quintero, A.)

03/19/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

173 Oficio No. 437/98 to Coprodemac,

result of meeting of the representatives of the state government,

SEMARNAP, Profepa and the Ministry of Health with the Mayor of

Cumpas, Sonora.

Office of the Mayor of

Cumpas, Sonora

(Hoyos Medina, J.M.)

05/06/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

174 Request to Office of the Mayor of

Cumpas, Sonora that he arrange a

hearing with the state governor in

order to resolve the problems with

Molymex.

COPRODEMAC

(Gallego Quintero, A.)

05/07/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

175 Oficio No. DS-SMA-UNE-CM-476

giving notice that the Sonora Federal

Office will validate the air quality

reports in the Municipality of Cumpas

until a review of the operation and

maintenance of the monitors is conducted.

SEMARNAP

(Gandara Camou, E.)

05/08/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

176 Oficio No. SG-06-06 to SEMARNAP

officer on SINALP laboratory

assessment.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/05/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

177 Results of CRETIB test No. 803604

for Molymex.

Laboratory of Grupo

Microanálisis, S.A. de C.V.

(Hernández, N.;

Escobar M., R.)

06/05/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

178 Invitation to the residents of Cumpas

to support Coprodemac against

Molymex.

COPRODEMAC

(Gallego Quintero, A.)

undated IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

179 Oficio No. 0017 to SEMARNAP Federal Officer in Sonora requesting a

meeting with the officials and ministers of the state and federal bodies

(SEMARNAP, Profepa, Health, and

state government).

COPRODEMAC

(Gallego Quintero, A.)

03/12/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

180 Cumpas residents’ declaration of

support for Coprodemac.

COPRODEMAC

(Gallego Quintero, A.)

04/07/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

181 Request to the Mayor of Cumpas

that all the officials responsible for

each ministry and agency make an

appearance.

COPRODEMAC

(Gallego Quintero, A.)

04/22/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

182 Application to Chief of Police of

Cumpas to hold demonstrations in

protest against Molymex.

COPRODEMAC

(Gallego Quintero, A.)

04/23/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

134 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
183 Petition to Mayor of Cumpas to meet

with the governmental entities of

Sonora, SEMARNAP, Ministry of

Health, and Profepa.

COPRODEMAC

(Gallego Quintero, A.)

04/27/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

184 Request to SEMARNAP State Officer for a copy of the Molymex operating license.

COPRODEMAC

(Gallego Quintero, A.)

04/30/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

185 Letter to Mayor of Cumpas asking

that he request that the Governor of

Sonora visit Cumpas and enforce

the LGEEPA and its air pollution prevention and control regulation.

COPRODEMAC

(Gallego Quintero, A.)

04/30/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

186 Oficio No. 054-90 to Assistant General Manager of Molymex giving

notice of decision to grant industrial

land use permit.

Office of the Mayor of

Cumpas

(Hoyos Medina, J.)

09/07/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

187 Oficio No. 001 to National Institute of

Ecology (Instituto Nacional de

Ecología) explaining the problems

that the residents of Cumpas have

with Molymex.

COPRODEMAC

(Gallegos Quintero, A.)

10/04/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

188 Request for support from the

SEMARNAP Federal Officer to send

information to the National Institute

of Ecology on the environmental

problems existing in Cumpas as a

result of the operation of the

Molymex plant.

COPRODEMAC

(Gallego Quintero, A.)

11/05/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

189 Request to Mayor of Cumpas to

exhibit to Coprodemac the land use

permit obtained by Molymex.

COPRODEMAC

(Gallegos Quintero, A.)

10/25/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

190 Oficio No. PFPA-DS-UDQ-649/99

File No. 9601/002/2623 on request

for certified copies of the memo by

Patricia Celis Salgado, biologist.

PROFEPA,

Office in Sonora

(Morachis López, R.)

12/09/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

191 Report on the problems associated

with the Molymex company, located

in Cumpas.

PROFEPA, Office in

Sonora (Celis Salgado, P.)

04/01/95 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

192 Oficio No. SSS-DGRFS-00-239

Sanitary inspection visit to Molymex.

Sonora Health Services

(Reyes Salazar, G.A.)

02/28/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

193 Oficio No. DS-UAJ-033/2000 to

Director, Legal Affairs, Government

of the State of Sonora, with legal

information on Molymex in Cumpas.

SEMARNAP, Office in

Sonora (Ruiz Rubio, J.C.)

04/17/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

194 Press release: “Inauguración de la

Planta de Ácido Sulfúrico de

Molymex por el Gobernador”

(Governor inaugurates Molymex

sulfuric acid plant).

Government of the State

of Sonora

03/19/02 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

195 Invitation to the inaugural ceremony

for the Cumpas sulfuric acid plant.

Government of the

State of Sonora

03/00/02 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

APPENDIX 6 135

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
196 Communications denouncing

Molymex.

n/a undated IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

Section 2:

197 Oficio No.: SSP/DGSS-97 File No.

0000744 to SEMARNAP State Officer in Sonora in relation to the epidemiological monitoring activities and a

descriptive report of epidemiological

patterns of acute respiratory infection

in two rural communities of Sonora

1994–1996, produced by the Ministry

of Public Health in response to a

request from Coprodemac.

Government of the State of

Sonora

(Rivera Claisse, E.)

09/09/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

198 Sanitary license No.97-AR39E held

by Molymex.

Ministry of Public Health

(Ruibal Corella, J.A.)

09/10/97 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

199 Oficio No. 00157 File No. SSP/

DGSS/2000 to Minister of Government (Secretario de Gobierno) with

the list of actions that the analysis

group of the Ministry of Public Health

suggests as avenues for future work.

Health Services Branch,

State of Sonora

(Linares Negrete, M.R.)

02/28/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

200 Medical diagnosis. Centro Médico Nacozari

(Pérez, V.)

10/30/96 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

201 File No. SSP/DGSS-98 to Justice

Department officer with statistical

information on the principal causes

of mortality and mortality rates.

Health Services Branch,

State of Sonora

(Linares Negrete, M.R.)

06/09/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

202 Letter to Governor of the State of

Sonora in which the people of

Cumpas demand the enforcement of

the environmental laws, primarily,

the full extent of Article 34 so as to

deny authorization for the Molymex

expansion.

COPRODEMAC

(Gallego Quintero, A.)

09/02/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

203 Letter to Minister of Health of the

State of Sonora and Director of the

Cumpas Health Center requesting a

public meeting for delivery of a general report to the community of

Cumpas on human health harm

caused by sulfur dioxide and suspended solid particle pollution, and

to present in writing the epidemiological monitoring activities so as to precisely establish a cause-effect

relationship between the air pollution

in Cumpas and the possible harm to

public health noted in Oficio

SSP/DGSS-97.

COPRODEMAC

(Community of Cumpas,

Sonora)

03/01/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

204 26 health reports on blood lead levels in the residents of Cumpas and

5 pages of photos of the persons in

question.

Ministry of Public Health,

Epidemiology Division

02/25/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

136 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
Section 3:

205 Document to Legislative Assembly,

Second Commission on Ecology and

Environment and First Commission

on Public Assistance and Health,

Congress of the State of Sonora.

Congress of Sonora 11/11/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

206 Technical report on citizen complaint

requesting total and final closing of

Molymex.

PROFEPA

(Maytorena Fontes, F.)

11/22/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

207 Certification that technical report is a

true copy of the original filed under

No. 9601/002/2623 of the Petitions

and Complaints Unit (Unidad de

Denuncias and Quejas).

PROFEPA–Sonora

(Morachis López, J.R.)

12/09/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

208 Newspaper articles (3) on Molymet

case in Chile and e-mail from

Alianza por una Mejor Calidad de

Vida, RAP-Chile.

n/a 05/00/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

209 Request for information on Molymet

in Chile.

Alianza por una mejor

calidad de vida, RAP-Chile

(Rozas de García de la

Huerta, M.E.)

03/04/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

Section 4:

210 Agricultural complaints. Estimates of

impact caused by sulfur dioxide pollutants from copper smelting operations on agriculture in Sonora,

Mexico.

Border Ecology Project

(Williams, W.)

04/00/86 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

211 Letter of support for Coprodemac. Sociedad de Praderas

“Los Cuervos” del Ejido

de Cumpas

05/02/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

212 Petition of support for Coprodemac. Residents of

Los Hoyos Ejido

05/03/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

213 Community agricultural complaint to

SEMARNAP and Profepa.

COPRODEMAC 10/05/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

Section 5:

214 Petition to Governor of the State of

Sonora regarding Molymex with 4

pages of additional signatures.

Southern Arizona People’s

Law Center, Tucson,

Arizona

(Broce, M.)

02/05/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

215 Petition on Molymex to President of

the United Mexican States.

Southern Arizona People’s

Center, Tucson, Arizona,

USA

(Broce, M.)

03/25/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

216 Report, “Pollution and International

Capital in the Sonora Desert: The

Molymex Plant at Cumpas".

DataCenter 02/00/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

217 Oficio No. SG-019-2000 Response

to Southern Arizona People’s Law

Center of Tucson, Arizona.

Ministry of Government,

State of Sonora

(Vucovich, O.)

02/14/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

APPENDIX 6 137

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
Section 6:

218 “Determination of molybdenum contamination in soils in the vicinity of

Cumpas, Sonora” along with Oficio

IC184/2000.

Division of Engineering,

Universidad de Sonora

(Moreno Turrent, M.;

Tiburcio Munive, G.)

10/15/00 IP-CCD;

IP-Molymex

COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.) and

Molymex

(Carvajal Galindo,

A.)

10/10/02;

11/25/02

219 “Determination of blood lead levels in

preschool and school-aged children

and adults in the Municipality of

Cumpas, Sonora”.

Ministry of Public Health

of Sonora

03/00/02 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

Section 7:

220 Analysis of molybdenum concentration.

Kennecott Utah Copper

Corporation

11/28/95 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

221 Articles on Molymex. Various newspapers 07/18/02 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

222 Letter of complaint to Director of El

Imparcial.

(Quijada Abril, H.) 16/12/02 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

223 Propaganda against Molymex. Comité Pro Medio

Ambiente de Cumpas

undated IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

224 Letter to “Programa detrás de la

noticia” (Behind the News program)

requesting denial of support for the

installation of furnaces at the

Molymex plant.

COPRODEMAC

(Gallego Quintero, A.)

06/00/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

225 Propaganda against Molymex. COPRODEMAC

(O’Leary de Lizárraga,

R.M.)

undated IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

226 Letter requesting help in the case

against Molymex from the group

“Entre Líneas”.

COPRODEMAC 06/00/98 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

227 Press Bulletin No. 20/99 of the Academia Sonorense de Derechos

Humanos, A.C. regarding Molymex

Academia Sonorense de

Derechos Humanos, A.C.

(Gutiérrez Mendívil, D.)

12/11/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

228 Text titled “Defiende la salud desde

una cárcel” (Defending health from a

jail cell).

COPRODEMAC

(O’Leary de Lizárraga,

R.M.)

12/24/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

229 Letter to people of Sonora against

Molymex.

Alianza por Sonora 12/22/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

230 Letter of support to people of

Cumpas against Molymex.

Various Mexican groups 12/00/99 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

231 Request to Governor of the State of

Sonora for immediate closing and

subsequent relocation of Molymex.

COPRODEMAC 01/23/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

138 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
232 Press Bulletin No. 04/2000 “Ordenan

al Municipio de Cumpas Resolver

sobre Petición de Clausura de

Molymex” (Order to Municipality of

Cumpas to resolve petition to close

Molymex)

Academia Sonorense de

Derechos Humanos, A.C.

(Gutiérrez Mendívil, D.)

01/31/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

233 Letter to the people of Cumpas

against Molymex.

COPRODEMAC undated IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

234 Letter to the President of Mexico, the

Governor of the State of Sonora, and

the federal, state, and municipal

authorities requesting a final closing

order for the Molymex plant.

Various Mexican groups 07/00/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

235 Letter to domestic and foreign physicians and medical workers.Asociación de Organismos

no Gubernamentales del

Estado de Sonora

10/18/01 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

236 Letter to Luisa Durán de Lagos

against Molymex.

COPRODEMAC

(O’Leary de Lizárraga,

R.M.)

10/29/01 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

237 Request to Governor of the State of

Sonora to respond to the demands

of the residents of Cumpas, respect

the NGOs of Cumpas and

Hermosillo.

Southern Arizona People’s

Law Center, Tucson,

Arizona

02/05/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

238 Press Bulletin No. 11/2000,

“Molymet-Chile será reubicada por

ser un peligroso foco de contaminación” (A dangerous pollution

source, Molymet-Chile will be

relocated).

Academia Sonorense de

Derechos Humanos, A.C.

(Gutiérrez Mendívil, D.)

05/12/00 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

239 Letter to Television News reporting

the cases of two children with blood

lead contamination.

Medina de González, A. 03/13/01 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

240 Letter to Television News reporting

the cases of three children with

blood lead contamination.

Grijalva de Hoyos, D. 03/12/01 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

241 Letters to Television News requesting their help with the problem in

Cumpas.

Grijalva, R.; de Abril, M.A. 03/12/01 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

242 Six letters to Television News

requesting help with the problem

in Cumpas.

de Grijalva, L.;

Ramos de Hoyos, L.;

Bremont, B.;

De Gallego, E.;

López Martínez, A.;

Montaño de Montijo, M.

03/13/01 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

243 Oficio DG/004/DI/0795/2001 in

response to letter from Rosa María

O’Leary Franco on Molymex.

PROFEPA

(Gómez Rodríguez, J.A.)

08/23/01 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

244 Comments to the Environmental

Petitions, Complaints, and Social

Participation Branch (Dirección

General de Denuncias Ambientales,

Quejas y Participación Social).

Ciudadanos por el Cambio

Democrático

(O’Leary de Lizárraga,

R.M.)

undated IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

APPENDIX 6 139

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
245 Letter to Molibdenos y Metales on

behalf of the residents of Cumpas,

Sonora.

Asociación de organismos

no gubernamentales del

estado de Sonora

(O’Leary de Lizárraga,

R.M.)

10/29/01 IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

246 “Small Sonoran Community In

Danger From Smelter!”

Southern Arizona Alliance

for Economic Justice

undated IP-CCD COPRODEMAC

(Baldenegro, L.L.;

O’Leary, R.M.)

10/10/02

247 Certified copy of criminal proceeding

No. 13/2002 and amparo proceeding

No. 26/200, complaint action filed.

Academia Sonorense de

Derechos Humanos, A.C.

(Gutiérrez Mendívil, D.)

10/10/02 n/a Academia

Sonorense de

Derechos Humanos,

A.C. (Gutiérrez

Mendívil, D.)

10/10/02

248 Manuscript of speech in Cumpas

and copy of complaint sent to Director, Environmental Complaints,

PROFEPA.

Heras Durán, A. 10/30/02 n/a COPRODEMAC

(Heras Durán, A.)

11/01/02

249 Complaint to Director, Environmental

Complaints, PROFEPA that

wastewater from Molymex is

dumped into the Cumpas oxidation

lagoon.

COPRODEMAC

(Heras Durán, A.)

03/27/02 n/a COPRODEMAC

(Heras Durán, A.)

11/01/02

250 Oficio No. DG/004/DI/0494/2002.

File No. 0203/068/DI/26 stating that

the complaint has been recorded in

the Citizen Complaint Response

System (Sistema de Atención a la

Denuncia Popular) and that it was

relayed to the National Water Commission Branch (Dirección General

de la Comisión Nacional del Agua).

PROFEPA

(Villar Alvelais, E.)

04/19/02 n/a COPRODEMAC

(Heras Durán, A.)

11/01/02

251 Photos of vegetation in the vicinity of

Molymex.

COPRODEMAC

(Heras Durán, A.)

02/16/02 n/a COPRODEMAC

(Heras Durán, A.)

11/01/02

252 Information submitted for the development of the draft factual record on

submission SEM-00-005 Molymex II.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

11/12/02 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 1:

253 Oficio No. DS-SMA-UNE-LF-282

Operating license.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

05/30/96 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

254 Oficio No. DS.139-4-SPA-1449 Modifications and amendments to the

Molymex operating license.

Ministry of Social

Development,

Sonora Office

(Chávez Méndez, E,)

05/27/94 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 2:

255 Oficio No. DS-SMA-UNE-1097

SEMARNAP Attestation of Receipt.

Molymex Expansion Project.

National Institute of

Ecology, Environmental

Land Use Planning and

Impact Branch

10/09/98 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

256 Oficio No. D.O.O.DGOEIA. 000445.

Environmental Impact Authorization

for Molymex Expansion Project.

INE, Environmental Land

Use Planning and Impact

Branch

(Butrón Madrigal, L.)

01/29/99 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

140 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
257 Appendix 3: Response from United

Mexican States regarding SEM

submission.

SEMARNAT

(Lichtinger, V.)

01/18/01 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 4:

258 Official Bulletin No. 5 Sect. I, containing the Municipal Development

Plan 1998/2000 and the Certificate

of Approval of the Municipal Development Plan.

Office of the Mayor

of Cumpas

(Soto Wendlandt, P.)

01/15/98 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 5:

259 Oficio No. PFPA-DS-SJ-0588/2001

Administrative Decision without

sanction, Administrative File

No. 20/2001.

PROFEPA, Office in

Sonora, Legal Affairs

Section (Clausen Iberri, O.)

06/19/02 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

260 Oficio No. PFPA-DS-UJ-2601/99

Inspection results.

PROFEPA,

Office in Sonora,

Legal Affairs Section

(Morachis López, J.R.)

12/14/98 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

261 Inspection Report in Cumpas

No. 08032001-SV-Q-001, Inspection

Order No. PFPA-DS -SV-0106/2001.

PROFEPA, Office in

Sonora (Luviano Silva, S.;

Rosas Valdez, J.D.)

03/09/01 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

262 Oficio No. DS-SMA-UNE-CM-1091

attesting that the calibration, maintenance, and perimeter monitoring

activities, the computing equipment,

and the telemetry equipment of the

network comply with the applicable

environmental law.

SEMARNAP, Office in

Sonora (Ruiz Rubio, J.C.)

10/05/98 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

263 Appendix 6: Oficio No. PFPA-DFUJ-2572/99, Administrative Decision,

Administrative File. No. 080/96.

PROFEPA, Office in

Sonora, Legal Affairs Unit

(Morachis López, J.R.)

02/28/00 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

264 Appendix 7: Photos of Molymex

plant.

Molymex, S.A. de C.V. IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

265 Appendix 9: Schematic flowchart

of Molymex process.

Technical Department undated IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

266 Appendix 10: Oficio No. DS-SMAUNE-LF-0071 giving authorization to

conduct the relevant air emission

measurements by applying the

method of NOM-AA-56-1980.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

01/10/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

267 Appendix 11: Oficio No. DS-SMAUNE-019 giving notice that the study

titled “Assessment of particle emissions and trace metals in the gas

scrubbing system stack of the

molybdenum sulfide roasti ng plant”

complies, in content and form, with

the stipulations of condition no. 6 of

the updated operating license.

SEMARNAT, Federal

Office in Sonora

(Luna Urquídez, J.L.)

01/16/02 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

APPENDIX 6 141

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
268 Appendix 12. Record of Agreements

and Commitments between Molymex

and the Comité de Protección del

Medio Ambiente de Cumpas, with

the participation of federal, state,

and municipal authorities.

Molymex, S.A. de C.V.;

Office of the Mayor of

Cumpas,

Ministry of Health,

SEMARNAP,

COPRODEMAC,

Asociación Civil Pro

Defensa del Empleo

05/23/96 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

269 Appendix 13. Photos of the Ojo de

Agua station. View to the north,

south, east and west. Photos of the

Teonadepa station to the south and

west. Photos of the Cumpas station,

view to the north and south.

n/a undated IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 14:

270 Graphs of 6-hour average SO2

emissions from Molymex stack,

1994–2002.

Environmental and Safety

Department, Ambient

Air Quality

IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

271 Assessment of pollutant emissions

from the molybdenum sulfide roasting plant operated by Molymex,

S.A. de C.V.

Sampling Servicios

Ambientales Múltiples e

Ingeniería, S.A. de C.V.

(Cruzado Martínez, A.)

10/00/00 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

272 Calibration certificate. CNM Centro Nacional de

Meteorología

(Pérez Castorena, A.)

11/25/99 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 15:

273 Oficio No. DS-SGPA-UGA-687

giving notice that, based on report

remitted by Molymex further to air

quality monitoring conducted by

Molymex in Cumpas, the SO2 levels

for July 2002 are within the limits set

out in standards NOM-022-SSA1-

1993 and NOM-025-SSA1-1993.

SEMARNAT, Federal

Office in Sonora, Office of

the Deputy Director of

Management for

Environmental Protection

(Luna Urquídez, J.L.)

09/12/02 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

274 Oficio No.DS-SGPA-UGA-619 giving

notice that based on reports remitted

by Molymex further to air quality

monitoring conducted by Molymex in

Cumpas, the SO2 and PM10 levels

for the period from October 1999 to

June 2002 are within the limits set

out in Mexican Official Standard

NOM-022-SSA1-1993.

SEMARNAT,

Office in Sonora

(Luna Urquídez, J.L.)

08/29/02 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

275 Oficio No. DFS-SMA-UNE-838

giving notice that the company’s

monitoring reports for 1998 and up

to September 1999 will be remitted

to the National Institute of Ecology

for validation.

SEMARNAP, Office in

Sonora (Ruiz Rubio, J.C.)

12/16/99 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

276 Oficio No. DFS-SMA-UNE-CM-259

notifying the company that the ambient air quality monitoring report on

SO2 and PM10 levels for January

1998 indicates that the levels are

within the limits set out in Mexican

Official Standards NOM-022-SSA1-

1993 and NOM-025-SSA1-1993.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

02/23/98 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

142 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
277 Oficio No. DS-SMA-UNE-CM-123

notifying Molymex that it must

request authorization in writing from

the Sonora Office for any change to

the air quality monitoring program

and that it will evaluate the air quality

monitoring reports filed by Molymex

on SO2 and PM10 levels for

December 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

01/21/98 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

278 Oficio No. DS-SMA-UNE-CM-985 on

report of ambient air quality monitoring for SO2 and PM10 levels for

November 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

12/12/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

279 Oficio No. DS-SMA-UNE-CM-940 on

report of ambient air quality monitoring for SO2 and PM10 levels for October 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

11/28/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

280 Oficio No. DS-SMA-UNE-CM-879 on

report of ambient air quality monitoring for SO2 and PM10 levels for September 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

10/16/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

281 Oficio No. DS-SMA-UNE-CM-825 on

report of ambient air quality monitoring for SO2 and PM10 levels for

August 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

09/22/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

282 Oficio No. DS-SMA-UNE-CM-591 on

report of ambient air quality monitoring for SO2 and PM10 levels for

May 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

06/20/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

283 Oficio No. DS-SMA-UNE-CM-493 on

report of ambient air quality monitoring for SO2 and PM10 levels for

March and April 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

05/08/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

284 Oficio No. DS-SMA-UNE-CM-328

to Assistant General Manager of

Molymex, S.A. de C.V., with information on report of ambient air quality

monitoring for SO2 and PM10 levels

for February 1997.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

04/28/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

285 Oficio No. DS-SMA-UNE-CM-119 on

report of ambient air quality monitoring for SO2 and PM10 levels for

December 1996.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

01/30/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

286 Oficio No. DS-SMA-UNE-CM-118 on

report of ambient air quality monitoring for SO2 and PM10 levels for

November 1996.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

01/27/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

287 Oficio No. DS-SMA-UNE-CM-533 on

report of ambient air quality monitoring for SO2 and PM10 levels for September 1996.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

12/03/96 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

288 Oficio No. DS-SMA-UNE-CM-565 on

report of ambient air quality monitoring for SO2 and PM10 levels for October 1996.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

11/19/96 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

APPENDIX 6 143

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
289 Oficio No. DS-SMA-UNE-CM-447 on

report of ambient air quality monitoring on SO2, PM10 and meteorological

data (partial) for July and August

1996.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

09/23/96 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

290 Oficio No. DSMA-UNE-CM-355 on

report of ambient air quality monitoring on SO2, PM10 and meteorological

data for October, November and

December 1995; January, February,

March and June 1996.

SEMARNAP,

Office in Sonora

(Gandara Camou, E.)

08/30/96 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 16:

291 Environmental impact assessment of

air quality as affected by gas emissions relating to Molymex plant

expansion plan.

Molymex, S.A. de C.V. 08/00/98 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

292 Summary of meteorological information, Molymex station, Cumpas.Molymex, S.A. de C.V. 00/00/95 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

293 Topography of area around Molymex

plant.

Molymex, S.A. de C.V. undated IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

294 Printouts of dispersion model. ISCST 07/00/86 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 18:

295 Technical information on results of

Cumpas soil molybdenum levels

study, results of ambient sulfur dioxide monitoring and risk assessment

for Cumpas, results of blood lead

levels study, list of morbidity and

mortality incidents recorded in the

Municipality of Cumpas, Sonora, during 2000. File No. SSS/DGSS/2001

to General Manager of Molymex.

Government of the State of

Sonora, Ministry of Public

Health, Epidemiology

Division

(Cruz Ochoa, J.B.)

03/26/01 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

296 Oficio No. DCA-23-VI/00-61 to

SEMARNAP State Officer in Sonora

with report of activities carried out by

Molymex in the context of “Cumpas

Environment Week”.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/23/00 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

297 Appendix 19: Report of activities carried out by Molymex in the context of

“Cumpas Environment Week”.

Molymex, S.A. de C.V.

(Carvajal Galindo, A.)

06/05/02 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 20:

298 Letter to SEMARNAP Federal Officer

in Sonora with appendices in support

of Molymex’s actions in favor of the

environment.

COPRODEMAC

(Gallego Quintero, A.)

05/23/97 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

299 ISO 9002 certification for quality

system QBE-97241. Initially certified

as of 12/1997. Validity period

01/02/2001–15/12/2003.

SGS International

Certification Services

E.E.S.V.

(D’Haese, G.)

02/01/01 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

144 FACTUAL RECORD: MOLYMEX II SUBMISSION

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy
300 Letter of congratulations for achievement of Profepa Clean Industry

Certification.

Municipality of Cumpas,

Sonora

(Ballesteros Guzmán, R.)

09/12/02 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

301 Report of fourth environment week

held by Molymex and participation in

the event “Mining and the Environment” held by the Mining Industry

Association of Sonora. Photographs.

Molymex, S.A. de C.V. 06/05/02 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

302 Appendix 21: Document titled

“Derecho al Desarrollo, Derechos

Humanos and Democracia en Mexico” (Right to development, human

rights, and democracy in Mexico).

Rodríguez Espinoza, H. 00/00/01 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

Appendix 22:

303 Illustrative pamphlet of achievements of the Fondo de Apoyo

Comunitario de Cumpas (community

support fund), with photos.

Municipality of Cumpas,

Sonora

09/00/99 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

304 Articles from the newspaper El

Amanecer Serrano, 2000–2001.

Molymex, S.A. de C.V. 1997-2001 IP-Molymex Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

11/15/02

305 “Disposiciones de Orden Público e

Interés Social” (Provisions for public

order and the public interest), legal

precedents referring to the retroactive application of public order

provisions.

Academia Sonorense de

Derechos Humanos, A.C.

(Gutiérrez Mendívil, D.)

undated Information provided to the Secretariat by Domingo

Gutiérrez Mendívil

Academia

Sonorense de

Derechos

Humanos, A.C.

(Gutiérrez

Mendívil, D.)

11/18/02

306 Technical opinion on SO2 emissions.

Final report.

Acosta y Asociados

(Acosta, G.)

02/03/03 Acosta y

Asociados9

Acosta y Asociados

(Acosta, G.)

02/03/03

307 Oficio No. SSS-DGRFS-02-448 to

Molymex corresponding to Final

Technical Report. Assessment of

health risks arising from environmental agents (physical, chemical,

biological) as per NOM-048-

SSA1-1993.

Ministry of Public Health

and Sonora Health

Services

(Cruz Ochoa, J.B.)

12/17/02 IP-Molymex210 Molymex, S.A. de

C.V. (Carvajal

Galindo, A.)

02/19/03

APPENDIX 6 145

DATE PROVIDED TO RECEIVED

No. DOCUMENT/APPENDIX AUTHOR mm/dd/yy ID SECRETARIAT BY mm/dd/yy

9. Technical opinion on SO2 emissions.

10. Information provided by Molymex.

APPENDIX 7

Schematic Flow Chart of the Molymex Process

and Photo of the Molymex Plant

SCHEMATIC FLOW CHART OF THE MOLYMEX PROCESS*

MOLYBDENUM CONCENTRATE ROASTING GASES M

MoS2 ACID PLANT

GASES

CLEAN GASES

650 PPM SO2

STACK

GAS SCRUBBING H2SO4

MoO3 PLANT

ACID LIQUOR

LIQUOR TREATMENT

PLANT

NEUTRAL LIQUOR

EVAPORATION PONDS

LIMESTONE SLUDGE

TECHNICAL DEPARTMENT

PACKING

* Information provided by Molymex, 15 november 2002, appendix 9.

APPENDIX 7 149
150 FACTUAL RECORD: MOLYMEX II SUBMISSION
APPENDIX 8

Summary of Specifications Contained in

Molymex’s Operating Permits

Summary of Specifications Contained

in Molymex’s Operating Permits

Date and number Authorized activities Obligations Emission limits and

and equipment deadlines

First OP,

11 February 1994,

DS-139-4-SPA-126

- Vertical 10-hearth

roasting furnace,

5.4864 m diameter

- Diesel consumption

of approximately

25 m3/month

- Annual production

of 113.4 tons of

molybdenum

trioxide

- Operate vapor

recovery system

- Quantify pollutant

emissions

- Air Quality Monitoring Program for

Sulfur Dioxide,

breathable particles,

and weather data

- 99 % particle collection efficiency at

resumption of

operations

- 6-hour average SO2

emission limit of

0.065 % in volume,

24-hour average of

0.13 % ppm

- 50 mg/m3 particle

limit

- 20 % opacity in

visible emissions

First amendment to first OP,

27 May 1994,

DS-139-4-SPA-1449

- Vertical 10-hearth

furnace

- 92 m3/month diesel

- Annual production

of 7,500 tons of

molybdenum

trioxide

- Design, installation,

and operation of an

Air Quality Monitoring Network for

SO2 and solid particles (4 stations)

- Raise the stack to a

height sufficient to

comply with NOM022-SSA1-1993

and NOM-024-

SSA1-1993

- Determine the air

emissions produced

by the main roasting furnace stack

- Conduct morbidity

and mortality studies and vegetation

impact studies

- NOM-CCAT-006-

ECOL/19931 for

solid particles,

instead of 99 %

efficiency requirement for particle

control system

- 6-hour average SO2

limit of 0.065 %

- 50 mg/m3 particle

limit

- 20 % opacity in

visible emissions

- Comply with

pollutant limits set

out in applicable

standards by

1 May 2005

- The monitoring network must operate

at least two months

prior to the commissioning of the plant.

Second amendment to first OP,

3 April 1996,

DS-SMA-UNELF-500

The annual production

capacity increase to

7,500 tons of molybdenum trioxide was temporarily suspended until

the company complied

with the stipulated contaminant limits.

Install a sulfuric acid

plant or, failing that,

another SO2 emission

control alternative

proposed by the

company.

- 50 Ug/m3N solid

particle limit as of

1 September 1997

- 4 g/m3N liquid

particle limit as of

1 May 1996

- 80 mg/m3N liquid

particle limit as of

1 September 1997

- 650 ppmv SO2 limit

as of 1 October

1997.

APPENDIX 8 153

1. Establishing air emission limits for solid particles from fixed sources; DOF, 22 October 1993.

On 29 November 1994, this standard was renumbered NOM-043-ECOL-1993.
Date and number Authorized activities Obligations Emission limits and

and equipment deadlines

Second OP,

30 May 1996,

DS-SMA-UNELF-282

- Vertical 10-hearth

furnace and 92

m3/month diesel

- Molybdenum trioxide

production of

2 tons/hour

- 7,500 tons/year of

molybdenum trioxide;

dry material load into

furnace was limited to

21,400 kg/day until

compliance with

pollutant limits set

out in applicable

standards

- Incorporates agreements and commitments of 23 May

1996

- Reductions and

restrictions on

roasting furnace load

- Relocate or recondition monitoring

stations located at

Cumpas and Ojo

de Agua

- Operate a mobile

monitoring station

- Install and operate

a particle control

system (gas

scrubbing plant)

- Raise stack height

- Measure air

emissions from

roasting process

- Install a sulfuric acid

plant or conduct a

technical and

economic study with

justification of

proposed solutions

- Conduct 3-year

vegetation morbidity,

mortality and impact

studies

- Safety measures for

diesel storage tank

- Operate an alarm

system

- Contingency plan

- File stack gas flow

studies and

measurements

- 6-hour average SO2

limit of 0.065 % as of

31 December 1997

- 50 mg/m3 solid

particle limit as of

9 June 1997

- 80 mg/m3 liquid

particle limit as of

9 June 1997

- 4 g/m3N liquid

particle limit as

of 1 May 1996

- Install sulfuric acid

plant by 31 December 1997

First amendment to

second OP,

17 June 1997,

DFS-D-0986-97

Authorization to operate

roasting furnace at

installed production

capacity.

- 6-hour average SO2

limit of 0.065 % – the

compliance deadline

for this limit was

postponed by 1640

calendar days

starting 31

December 1997

(until June 2002)

- Observe ambient

SO2 limits set out

in DFS-D-0114-972

154 FACTUAL RECORD: MOLYMEX II SUBMISSION

2. The Secretariat requested Mexico but did not obtain, a copy of this oficio, which is mentioned

in oficio DFS-D-0986-97.
Date and number Authorized activities Obligations Emission limits and

and equipment deadlines

Third OP (in force),

29 November 2000,

DS-SMA-UNE-756

- Vertical 10-hearth

roasting furnace with

capacity of 2 tons/

hour of molybdenum

trioxide, which may

operate with 4

additional hearths

(14 hearths)

- Additional vertical

14-hearth roasting

furnace, 6.5 m

diameter, with

capacity of 2.015

tons/hour of

molybdenum trioxide

- Molybdenum waste

treatment plant

- Consumption of 180

m3/month of diesel,

60 tons of liquid gas

- Consumption of

13.5 tons/month

of anhydrous

ammonia

- File monthly report of

hourly molybdenum

sulfide loads per day

- Install and operate

a continuous

monitoring system

for gas emissions

from roasting

process

- Semiannual direct

measurements of

solid and liquid

particles at stack

- Install emergency

alarm system

- Implement

contingency plan

- Perform physicochemical analysis

of particles under

10 microns

- Conduct a study to

estimate human

health risk

- Continue with

perimeter monitoring

at the 4 stations and

file monthly reports

of results obtained

- 0.065 % SO2,

compliance deadline

extend to 31 December 2001

- 50 mg/m3N solid

particle limit as of

31 December 2001

- 80 mg/m3N liquid

particle limit as of

31 December 2001

APPENDIX 8 155

APPENDIX 9

Graphs of 6-hour Average SO2 Stack Emissions

Graphs of 6-hour Average SO2 Stack Emissions

* Information provided by Molymex, 15 November 2002, appendix 14.

APPENDIX 9 159

APPENDIX 10

Periods without Data

in Perimeter Monitoring Reports

NO. OF PERIODS WITHOUT DATA AND

PRINCIPAL PERIODS OF OCCURRENCE1

OJO DE AGUA STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan

120*

(0:00 on 1st

to 16:00 on

9th)

1 000 2 5 6

Feb

89

(18:00 on

7th to 15:00

on 10th)

2

20

(10:00–

17:00 on

13th)

00 1 2 1

Mar

245

(majority

between 1st

and 10th)

8

10

(10:00–

15:00 on

14th)

50

(0:00 on

4th to 23:00

on 5th)

1 1

17

(10:00–23:00

on 31st)

2

Apr 3 5 53 49

(29th–30th) 0

62

(0:00 on 1st

to 13:00 on

2nd, 15:00 on

19th to 14:00

on 20th)

2

May 3

33

(17:00 on

16th to

12:00 on

17th)

400 0

18

(15:00–21:00

on 23rd)

4

Jun 0 3 11 2

57

(22:00 on

1st to 4:00

on 4th)

26

(0:00–23:00

on 28th)

6 2

Jul

6

(11:00–

16:00 on

27th)

193

(18:00 on

25 to 23:00

on 31st)

1

33

(12:00–

21:00, on

1st)

30 8

5

(16:00–

18:00 on

2nd)

Aug

32

(10:00–

23:00 on

4th)

576

(0:00 on 1st

to 23:00 on

24th)

2 2

4

(19:00–

21:00 on

28th)

68

(18:00 on

18th to 10:00

on 21st)

9

Sep 6

19

(17:00 on

22nd to 9:00

on 23rd)

480

(6th–25th) 00 3 2 4

Oct 1 85

(24th–28th)

4

11

(0:00–6:00

on 9th)

0 1

18

(2:00–6:00

and

14:00–16:00

on 24th)

Nov

17

(19:00 on

3rd to 8:00

on 4th)

9

(10:00–

18:00 on

6th)

1

7

(12:00–

18:00 on

9th)

7

(9:00–

12:00 on

24th)

0

13

(0:00–8:00

on 14th)

Dec 0 10

14

(15:00 on

24th to 4:00

on 25th)

10 2

* = The plant was commissioned on 9 January.

APPENDIX 10 163

1. Acosta y Asociados, Technical Opinion on SO2 Emissions, Submission SEM-00-005 (Molymex II), Appendix B.
NO. OF PERIODS WITHOUT DATA AND

PRINCIPAL PERIODS OF OCCURRENCE

TEONADEPA STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan

115*

(0:00 on

6th to 11:00

on 9th)

33

(5:00 on all

31 days)

0011

7

(11:00–

15:00 on

17th)

0

Feb

224

(various

periods)

42

(5:00 from

1st–26th)

101120

Mar 351

(various)

27

(5:00 from

11th–29th)

1

48

(0:00 on

4th to 23:00

on 5th)

4 1

3

(8:00–

10:00 on

24th)

0

Apr 01122000

May 5

11

(13:00

from

9th–13th)

0000

7

(16:00–

21:00 on

23rd)

0

Jun

4

(12:00–

15:00 on

16th)

0600100

Jul

13

(0:00–9:00

on 17th)

7 120

(10th–14th) 0

28

(21:00 on

26th to

23:00 on

27th)

020

Aug

253

(20:00 on

21st to

23:00 on

31st)

2 0

15

(21:00 on

17th to

11:00 on

18th)

531

Sep

24

(0:00–

23:00 on

1st)

1

23

(19:00 on

18th to

11:00 on

19th)

004

20

(2:00–

21:00 on

23rd)

Oct

288

(0:00 on

1st to 19:00

on 12th)

0 0

13

(0:00–5:00

on 9th)

010

Nov

69

(13:00 on

20th to

23:00 on

21st)

010

6

(9:00–

13:00 on

24th)

0

9

(0:00–8:00

on 14th)

Dec

50

(5:00 from

4th –31st)

1 0

15

(14:00 on

24th to 4:00

on 25th)

201

* = The plant was commissioned on 9 January.

164 FACTUAL RECORD: MOLYMEX II SUBMISSION
NO. OF PERIODS WITHOUT DATA AND

PRINCIPAL PERIODS OF OCCURRENCE

CUMPAS STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan

119*

(0:00 on

6th to 15:00

on 9th)

10

(16:00–

23:00 on

13th)

0

27

(24:00 on

9th)

0 1

12

(11:00–

16:00 on

17th)

10

(8:00–

15:00 on

18th)

Feb

145

(20:00 on

8th to 17:00

on 10th)

17

(5:00 from

24th–29th)

0001

12

(12:00–18:

00 on 16th)

0

Mar

307

(23:00 on

5th to 18:00

on 9th)

33

(5:00 from

1st–29th)

2

50

(0:00 on

4th to 23:00

on 5th)

2 4

14

(13:00–

23:00 on

31st)

18

(18:00 on

7th to 11:00

on 8th)

Apr 042002

13

(0:00–

12:00 on

1st)

2

May 533

14

(0:00–

13:00 on

18th)

9

(19:00 on

20th to 3:00

on 21st)

5

8

(15:00–

21:00 on

23rd)

1

Jun 0 5

37

(17:00 on

22nd to

11:00 on

23rd)

0 0

6

(17:00–

19:00 on

26th)

17

(19:00 on

17th to

10:00 on

18th)

1

Jul 0 13

17

(21:00 on

4th to 13:00

on 5th)

52

(15:00 on

18th to

11:00 on

20th)

2 5

14

(8:00–

10:00 on

22nd)

2

Aug

19

(12:00 on

15th to 4:00

on 16th)

3

15

(0:00–

11:00 on

11th)

2 7

6

(17:00–

19:00 on

26th)

8

Sep 6030023

8

(0:00–6:00

on 13th)

Oct 0

24

(13:00 on

27th to

11:00 on

28th)

0

10

(0:00–5:00

on 9th)

233

Nov

16

(18:00 on

3rd to 9:00

on 4th)

01042

10

(0:00–8:00

on 14th)

Dec

23

(0:00–

13:00 on

22nd)

0 0

15

(14:00 on

24th to 4:00

on 25th)

57

(28th–29th) 1 1

* = The plant was commissioned on 9 January.

APPENDIX 10 165
NO. OF PERIODS WITHOUT DATA AND

PRINCIPAL PERIODS OF OCCURRENCE

MOBILE STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan 1000

7

(12:00–

16:00 on

17th)

0

Feb 100120

Mar 2

48

(0:00 on

4th to 23:00

on 5th)

1 1

3

(8:00–

10:00 on

24th)

0

Apr 31113

47

(13:00 on

6th to 11:00

on 8th)

May

25

(0:00–

23:00 on

31st)

000

8

(16:00–

21:00 on

23rd)

0

Jun 0

72

(3rd, 8th

and 9th)

34

(14:00 on

20th to

23:00 on

21st)

17

(21:00 on

17th to

13:00 on

18th)

15

(21:00 on

13th to

11:00 on

14th)

32

(7:00 on

8th to 14:00

on 9th)

Jul

5

(0:00–4:00

on 1st)

0 1

107

(13:00 on

5th to 23:00

on 9th)

85

(20:00 on

6th to 9:00

on 9th),

(0:00–

23:00 on

13th)

0

Aug 1 1 48

(30th–31st)

35

13

(19:00 on

18th to 9:00

on 19th)

Sep

7

(0:00–6:00

on 7th)

9 24

(on 15th) 0

15

(0:00–

14:00 on

1st)

2

20

(23:00 on

3rd to 4:00

on 4th,

0:00–7:00

on 13th)

Oct

7

(5:00–

11:00 on

29th)

0

9

(0:00–5:00

on 9th)

96

(15th –18th) 0

8

(15:00–

19:00 on

7th)

Nov 0 1

14

(0:00–

13:00 on

19th)

26

(0:00–

23:00 on

20th)

0

9

(0:00–

8:00 on

14th)

Dec

74

(0:00 on

1st to 23:00

on 3rd)

15

(14:00 on

24th to 4:00

on 25th)

1

12

(0:00–

10:00 on

21st)

8

(12:00–

18:00 on

27th)

166 FACTUAL RECORD: MOLYMEX II SUBMISSION
APPENDIX 11

Occurrences of Negative Values

in Perimeter Monitoring Reports

OCCURRENCE OF NEGATIVE VALUES*

IN PERIMETER MONITORING REPORTS

OJO DE AGUA STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan 0 4 242 233 8 236 290 274

Feb 0 113 244 267 174 151 108 84

Mar 0 12 228 284 13 22 0 50

Apr 0 7 463 298 64 30 48 0

May 0 5 531 336 57 10 262 0

June 26 21 468 198 99 230 29 7

July 79 43 355 277 118 142 65 0

Aug 0 97 348 47 73 107 177

Sep 42 417 135 52 0 0 213 0

Oct 23 194 543 167 102 99 24

Nov 249 110 589 8 26 10 0

Dec 0 50 242 4 129 53 151

TEONADEPA STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan 214 195 75 319 94 85 46 95

Feb 0 36 30 306 47 195 357 0

Mar 0 101 38 176 150 25 107 1

Apr 4 7 145 268 101 173 111 360

May 0 0 232 561 412 144 137 368

June 0 0 244 470 327 137 0 97

July 0 15 290 95 0 0 45 3

Aug 0 145 177 37 225 5 436

Sep 0 341 36 252 0 141 97

Oct 212 0 395 0 342 92 0

Nov 310 0 190 0 64 0 0

Dec 305 61 183 30 82 0 165

APPENDIX 11 169

* Acosta y Asociados in the report, “Technical opinion on SO2 Emissions, Submission SEM-00-005 (Molymex II),”

Appendix C.
OCCURRENCE OF NEGATIVE VALUES

IN PERIMETER MONITORING REPORTS

CUMPAS STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan 49 484 491 390 151 77 248 85

Feb 0 374 429 482 39 136 296 283

Mar 0 387 377 285 112 253 157 108

Apr 8 449 601 103 69 222 87 0

May 0 582 602 108 154 290 8 0

June 122 500 551 239 288 260 0 0

July 334 382 611 135 261 175 0 0

Aug 169 205 232 1 305 237 107

Sep 42 0 513 62 259 231 0 2

Oct 52 21 597 3 237 6 4

Nov 466 551 633 11 48 296 0

Dec 507 549 550 6 100 218 19

MOBILE STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan 144 320 20 98 122 6

Feb 298 210 9 0 48 0

Mar 264 8 39 128 54 0

Apr 180 125 114 199 115 0

May 74 66 32 376 72 0

June 367 299 439 232 27 0

July 255 243 415 578 246 0

Aug 415 0 253 356 425

Sep 160 165 0 212 420 239 24

Oct 109 38 5 167 0 0

Nov 101 161 0 13 0 0

Dec 171 7 184 0 79

170 FACTUAL RECORD: MOLYMEX II SUBMISSION
APPENDIX 12

Minimum and Maximum Perimeter

Monitoring Reported Values

MINIMUM* AND MAXIMUM PERIMETER

MONITORING REPORTED VALUES

OJO DE AGUA STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan 0 -1.2 -2.8 -1.9 -1.1 -4.2 -3.1 -2.8

Feb 0 -4.7 -31.2 -0.8 -3 -0.6 -1.4 -1.3

Mar 0 -0.3 -33.1 -5.5 -1 -0.5 0 -1.7

Apr 0 -0.3 -9 -9.5 -23 -1.6 -2.5 0

May 0 -0.5 -8.2 -7.4 -1.2 -0.6 -2.7 0

June -0.5 -0.5 -107 -9.5 -5.1 -0.7 -0.4 -1.2

July -1.6 -10 -12.6 -11.6 -4.8 -1.1 -8.3 0

Aug 0 -2.7 -10.6 -2.2 -0.6 -2.5 -59.1

Sep -0.6 -2.3 -7.5 -2.3 0.4 0 -6.2 0

Oct -0.2 -1.7 -14.5 -5.9 -1.6 -2.6 -0.5

Nov -1.9 -1.9 -12.7 -0.6 -0.8 -0.4 0

Dec 0.2 -0.7 -2.8 -0.2 -3.8 -4.5 -1.9

TEONADEPA STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan -8.1 -3 -0.3 -1.1 -1.2 -4.3 -0.5 -0.6

Feb 0 -76.1 -0.3 -0.9 -0.8 -15.3 -1 0.1

Mar 0 -6.9 -0.3 -0.5 -7 -0.4 -0.9 -0.1

Apr -0.6 -0.2 -0.4 -1.5 -3.6 -0.7 -1.1 -2

May 0 0 -1.7 -1.9 -8.2 -2.9 -0.9 -1.7

June 0 0.2 -2 -1.2 -2.9 -1.6 0.5 -1

July 0 -0.4 -10.3 -3.6 0 0.5 -0.6 -0.2

Aug 0 -15.1 -11.6 -0.9 -3.8 -1.9 -1.2

Sep 0 -6 -1 -1.6 0.1 -0.4 -2.9

Oct -11.9 0.7 -6.5 0 -1.6 -2.1

Nov -10 0.8 -1 0.2 -0.4 0.2 0

Dec -5.9 -0.4 -0.9 -0.9 -2.7 0.2 -0.6

APPENDIX 12 173

* Acosta y Asociados, Technical Opinion on SO2 Emissions, Submission SEM-00-005 (Molymex II), Appendix D.
MINIMUM PERIMETER MONITORING

REPORTED VALUES

STATION CUMPAS

1995 1996 1997 1998 1999 2000 2001 2002

Jan -3.6 -4.7 -7.5 -4.2 -3.3 -2.8 -3.7 -1.5

Feb 0 -47.4 -14.3 -2.1 -1 -1 -2.1 -3.1

Mar 0 -3.2 -5.3 -2.2 -7.5 -3 -1.5 -3.1

Apr -1.4 -3.4 -9.8 -1.3 -0.9 -1.4 0

May 0 -3.5 -6.9 -1.9 -1.4 -9.9 -0.3 0

June -3.3 -7.1 -8.3 -5.1 -1.4 -4.3 0 0

July -3 -11.7 -8.4 -5.9 -8.6 -2.6 0 0

Aug -1.7 -3.2 -9.1 -0.1 -4.1 -5.2 -3

Sep -0.6 1 -15.6 -1.2 -1.7 -4.7 0 -0.2

Oct -2.8 -3.6 -12.8 -0.3 -6 -0.3 -0.5

Nov -4.9 -3.5 -9.8 -0.5 -1.6 -2.5 0

Dec -3.7 -2.4 -5.6 -0.6 -4.2 -3 -0.4

MOBILE STATION

1995 1996 1997 1998 1999 2000 2001 2002

Jan -2 -4.3 -0.5 -4.2 -1 -0.1

Feb -2.2 -3.7 -0.3 0 -1.2 0.3

Mar -2.4 -1 -2.8 -1.5 -0.4 0.2

Apr -3.8 -6.1 -1.8 -1.7 -1 0

May -2.3 -0.8 -0.4 -0.8 0.8

June -21.8 -7.5 -5.5 -1.2 -0.4 0

July -7 -9.7 -3.3 -1.3 -1.5 0.2

Aug -4.5 0 -1.9 -0.9 -1.8

Sep -2.5 -5 0 -1.4 -1.2 -1.3 -0.2

Oct -1.4 -1.3 -0.2 -0.8 0.4 0

Nov -1.2 -8 0 -2.8 0.1 0

Dec -43.6 -0.3 0 -1.1

174 FACTUAL RECORD: MOLYMEX II SUBMISSION
MAXIMUM** PERIMETER MONITORING

REPORTED VALUES

OJO DE AGUA STATION

1994 1995 1996 1997 1998 1999 2000 2001 2002

Jan 136.3 112.5 47 20 188.1 99.6 72.8 13

Feb 82.1 116.8 299.2 38.9 96.5 107.7 98.8 15.8

Mar 259.2 148.8 103.9 57.5 144.9 108.6 136.8 22

Apr 179.3 163.6 94.4 48.3 117 96.1 109.4 7.3

May 118.1 136.2 87.7 69.7 88.1 9.5 123.7 5.6

June 291.5 73.5 128.9 83.8 63 20.3 100.4 6

July 171.4 97.7 84 125.3 60.9 88.1 95.6 22

Aug 190.6 116.3 244.4 58.9 58.6 20.6 72.8

Sep 199.4 55.4 63.6 78.2 102.5 44.6 138.6 14.6

Oct 93.2 67.4 52.9 63 131.4 54.2 114.5

Nov 156.9 99 51.6 149.8 88.7 106.4 82.4

Dec 132 69.8 47 160.2 244.2 98.3 67.6

TEONADEPA STATION

1994 1995 1996 1997 1998 1999 2000 2001 2002

Jan 21.5 26.7 47.1 12.2 29.7 139.8 40.9 13.3

Feb 205.8 24 81 33 91.2 70.4 15 17.9

Mar 198.4 19.8 40.4 38.4 47.9 21.9 30.3 31.6

Apr 24.2 25.6 26.4 43 196.8 68.4 24.5 5.8

May 178.8 19.8 55.8 23.6 41.4 18.4 42.6 6.9

June 48.7 33.9 120.3 26.7 128.5 7.2 33 4.9

July 269.8 67.3 148 62.1 137 26.4 20.6 5.3

Aug 50.7 22.1 116.7 48.7 83.8 28.9 68.9

Sep 39.5 62.2 30.5 61.7 24.6 33.4 13.8

Oct 289.8 13.2 35.3 24.3 102 38.2 46.2

Nov 24.3 58.7 49.9 24.6 67.9 117.8 33.6

Dec 69.3 24.9 38.6 90.9 62.5 39 25.1

APPENDIX 12 175

** Acosta y Asociados, Technical Opinion on SO2 Emissions, Submission SEM-00-005 (Molymex II), Appendix E.
MAXIMUM PERIMETER MONITORING

REPORTED VALUES

CUMPAS STATION

1994 1995 1996 1997 1998 1999 2000 2001 2002

Jan 214.8 184.6 61.2 24 82.4 104.3 83.9 15.3

Feb 209.9 210.9 55.5 71.6 66.9 100 63.9 26.2

Mar 123.9 146.8 31.9 69.1 69.9 51.8 23.9 31.7

Apr 119.2 272.6 53.4 66.2 78.1 94.8 121.3 12.3

May 132.3 136.6 117.3 67 84.2 46.6 95.1 11.2

June 103 105.8 54.9 89.5 115.2 14.7 122 7.5

July 43.9 40 101.9 74.2 125.9 93.6 102.1 5.4

Aug 164.7 59.6 138.5 87.6 119.6 56.4 108.8

Sep 199.4 82.5 67.4 53 78.5 44.9 91.6 24.8

Oct 183.2 46.6 40 77.7 111.6 82.1 126.3

Nov 210.5 72.6 90.1 94.1 79.2 135.9 143.3

Dec 131.8 74.9 64.3 123.1 166.6 124.5 62.2

MOBILE STATION

1994 1995 1996 1997 1998 1999 2000 2001 2002

Jan 80.3 79.4 113 132.9 15

Feb 184.1 92.9 79.7 198.2 26.3

Mar 226.7 56 60.2 67.2 32.9

Apr 148.6 61.2 109.8 123.7 8.7

May 75 37.4 13.3 122.4 7.1

June 75 192 77.4 2.5 73.7 7.5

July 260.2 82.5 183.2 13.2 73.5 14.1

Aug 191.3 146.4 135 5.5 89.5

Sep 314.1 156 118 78 30.7 87.8 13

Oct 240.1 167.9 237.1 118.6 9.5 112.9

Nov 159.2 170 163 77.8 14.9 162.8

Dec 368.6 180.8 110.2 58.4

176 FACTUAL RECORD: MOLYMEX II SUBMISSION
ATTACHMENT 1

 Council Resolution 04-07

Washington, D.C., 24 September 2004

COUNCIL RESOLUTION 04-07

Instruction to the Secretariat of the Commission

for Environmental Cooperation to make public the

Factual Record for Submission SEM -00-005 (Molymex II)

THE COUNCIL:

SUPPORTIVE of the process provided for in Articles 14 and 15 of the

North American Agreement on Environmental Cooperation (NAAEC)

regarding submissions on enforcement matters and the preparation

of factual records;

HAVING RECEIVED the final factual record for Submission SEM-00-

005;

NOTING that pursuant to Article 15(7) of the NAAEC, the Council is

called upon to decide whether to make the factual record publicly available; and

AFFIRMING its commitment to a timely and transparent process;

HEREBY DECIDES:

TO MAKE PUBLIC and post on the registry the final factual record for

Submission SEM-00-005 and;

TO ATTACH to the final factual record comments provided by the

Parties to the Secretariat on the draft factual record.

APPROVED BY THE COUNCIL:

____________________________________

Judith E. Ayres

Government of the United States of America

____________________________________

José Manuel Bulás Montoro

Government of the United Mexican States

____________________________________

Norine Smith

Government of Canada

COUNCIL RESOLUTION 04-07 179

ATTACHMENT 2

 Comments of Mexico

UCAI/2958/04

Mexico City, 1 July 2004

MR. WILLIAM KENNEDY

EXECUTIVE DIRECTOR

COMMISSION FOR ENVIRONMENTAL COOPERATION

OF NORTH AMERICA

In response to your letter of May 17 and pursuant to Article 15(5) of the

North American Agreement on Environmental Cooperation, I hereby

submit the comments of this Coordinating Unit on the draft factual

record for Submission SEM-00-005/ Molymex II:

1. The expert retained to develop the factual record gives the document a critical slant on the effectiveness of the environmental law.

This is contrary to the factual record’s purpose of producing a listing of the facts without making recommendations, proposing

sanctions, or reaching conclusions. It is therefore proposed to

delete the second paragraph under the heading 1.2 Assertions on

the Enforcement of Environmental Impact Law as well as the first

sentence of the third paragraph from the same heading. Likewise,

it is proposed to delete the first sentence under the heading 5.4.3

Unresolved Matters of Law.

2. There are various typographical and semantic errors in certain sentences. Please find attached copies of the pages of the draft factual

record on which corrections are necessary.

I trust this is satisfactory.

YOURS SINCERELY,

MA. TERESA BANDALA MEDINA

DIRECTOR OF

INTERNATIONAL COOPERATION

JLR

S/Ref.

COMMENTS OF MEXICO 183