North American Environmental Law and Policy

Secretariat of the Commission 

for Environmental Cooperation 

393, rue St-Jacques Ouest

Bureau 200

Montréal (Québec)

Canada H2Y 1N9

info@cec.org

www.cec.org
Factual Record

ALCA-Iztapalapa II

(SEM-03-004)

Prepared pursuant to Article 15

of the North American Agreement

on Environmental Cooperation

November 2007

Publicly Released on 2 June 2008
For more information about this or other publications from the CEC,

contact:

Commission for Environmental Cooperation of North America

393, rue St-Jacques Ouest, bureau 200

Montréal (Québec) Canada H2Y 1N9

Tel.: (514) 350-4300

Fax: (514) 350-4314

E-mail: info@cec.org

http://www.cec.org

ISBN: 978-2-89635-085-8

© Commission for Environmental Cooperation of North America, 2008

ALL RIGHTS RESERVED.

Legal Deposit - Bibliothèque et Archives nationales du Québec, 2008

Legal Deposit - Bibliothèque et Archives Canada, 2008

Disponible en français – ISBN: 978-2-89635-083-4

Disponible en español – ISBN: 978-2-89635-084-1

This publication was prepared by the Secretariat of the Commission

for Environmental Cooperation of North America (CEC). The views

contained herein do not necessarily reflect the views of the governments

of Canada, Mexico, or the United States of America.
PROFILE

In North America, we share a rich environmental heritage and

a complex network of ecosystems that sustains our livelihoods and

well-being. Protecting the North American environment is a responsibility shared by Canada, Mexico, and the United States.

The Commission for Environmental Cooperation of North America (CEC) is an international organization created by Canada, Mexico,

and the United States under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental

concerns, help prevent potential trade and environmental conflicts, and

promote the effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free Trade Agreement (NAFTA).

The CEC accomplishes its work through the combined efforts of its

three principal components: the Council, the Secretariat and the Joint

Public Advisory Committee (JPAC). The Council is the governing body

of the CEC and is composed of the top environmental official from each

of the three countries. The Secretariat implements the annual work program and provides administrative, technical and operational support

to the Council. The Joint Public Advisory Committee is composed of

15 citizens, five from each of the three countries, and advises the Council

on any matter within the scope of the Agreement.

MISSION

The CEC facilitates cooperation and public participation to foster

conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in the context

of increasing economic, trade and social links among Canada, Mexico

and the United States.

VII
NORTH AMERICAN ENVIRONMENTAL

LAW AND POLICY SERIES

Produced by the CEC, the North American Environmental Law

and Policy (NAELP) series presents recent trends and developments in

environmental law and policy in Canada, Mexico and the United States,

including official documents related to the citizen submission procedure empowering individuals and organizations from the NAFTA

countries to allege that a Party to the agreement is failing to effectively

enforce its environmental law.

VIII FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Factual Record

ALCA-Iztapalapa II

(SEM-03-004)

Prepared pursuant to Article 15

of the North American Agreement

on Environmental Cooperation

November 2007

Publicly Released on 2 June 2008
In Memoriam

The CEC Secretariat dedicates this factual record to

the memory of Ángel Lara García, 1917-2008.
Table of Contents

Acronyms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

1. Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . 9

2. Summary of the Submission . . . . . . . . . . . . . . . . . . . . 11

3. Summary of Mexico’s Response . . . . . . . . . . . . . . . . . . 12

4. Scope of the Factual Record . . . . . . . . . . . . . . . . . . . . . 14

5. Information-gathering Process . . . . . . . . . . . . . . . . . . . 16

6. Content and Scope of the Environmental Law in Question . . . 19

6.1 CPF Article 414, first paragraph, and Article 415

paragraph I . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

6.2 LGEEPA Article 150 . . . . . . . . . . . . . . . . . . . . . . 21

6.3 Context of the Environmental Law in Question . . . . . . 24

6.3.1 Environmental Law Enforcement by Profepa. . . . 24

a. Profepa’s Jurisdiction over Odors and

Emissions. . . . . . . . . . . . . . . . . . . . . . 24

b. Application of Sanctions . . . . . . . . . . . . . 27

6.3.2 Enforcement of Environmental Criminal Law . . . 28

a. Pursuit of Criminal Prosecution . . . . . . . . . 28

b. Third-party Intervention or Assistance . . . . . 29

c. Specialized Environmental Law Enforcement

Entities . . . . . . . . . . . . . . . . . . . . . . . 30

3
d. Standard for Substantiation of Probable

Offense . . . . . . . . . . . . . . . . . . . . . . . 31

e. Means of Proof. . . . . . . . . . . . . . . . . . . 32

f. Application of Sanctions . . . . . . . . . . . . . 33

7. History of ALCA in Iztapalapa . . . . . . . . . . . . . . . . . . . 34

7.1 ALCA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

7.2 The Borough of Iztapalapa . . . . . . . . . . . . . . . . . . 37

8. Standards and Health Effects of Compounds Used by ALCA. . 40

9. Environmental Law Enforcement in the Case of ALCA . . . . . 47

9.1 Complaints Filed against ALCA . . . . . . . . . . . . . . . 48

9.2 Acts of Environmental Law Enforcement in relation to

Air Emissions and Hazardous Waste Management . . . . 51

9.2.1 Air Emissions. . . . . . . . . . . . . . . . . . . . . . 51

a. Closing of 7 December 1994 . . . . . . . . . . . 51

b. Fine of 10 April 1995 . . . . . . . . . . . . . . . 52

c. Closing Order of 5 September 1997 . . . . . . . 53

9.2.2 Hazardous Waste Generation and Management . . 56

9.3 Acts of Enforcement by the Government of the Federal

District . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

9.4 Environmental Criminal Law Enforcement . . . . . . . . . 59

10. Final Note . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

Tables

Table 1. Comparison of versions of CPF articles . . . . . . . . 20

Table 2. Population growth in Iztapalapa. . . . . . . . . . . . 38

4 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Table 3. Official Mexican Standards applicable to the

substances used by ALCA . . . . . . . . . . . . . . . 46

Table 4. Complaints filed with respect to the issue raised

in the submission . . . . . . . . . . . . . . . . . . . . 49

Table 5. Imposition of hazardous waste-related fines and

corrective measures . . . . . . . . . . . . . . . . . . . 57

Table 6. Evidence gathered during investigation . . . . . . . 60

Appendices

Appendix 1 Council Resolution 05-05, Instruction to the Secretariat

of the Commission for Environmental Cooperation

regarding the assertion that Mexico is failing to

effectively enforce Article 150 of the General Law of

Ecological Balance and Environmental Protection

(Ley General del Equilibrio Ecológico y Protección al

Ambiente) and Articles 414 and 415 of the Federal

Penal Code (Código Penal Federal) (SEM-03-004) . . . 69

Appendix 2 Overall Plan to Develop a Factual Record with

regard to Submission SEM-03-004 . . . . . . . . . . . 73

Appendix 3 Request for Information describing the scope of the

information to be included in the factual record

and giving examples of relevant information . . . . 81

Appendix 4 Information Requests to Mexican Authorities . . . . 89

Appendix 5 Information Requests to NGOs, JPAC and other

Parties to NAAEC . . . . . . . . . . . . . . . . . . . . 99

Appendix 6 Chronology of events . . . . . . . . . . . . . . . . . 105

Appendix 7 Figures. . . . . . . . . . . . . . . . . . . . . . . . . . 111

Appendix 8 Photographs . . . . . . . . . . . . . . . . . . . . . . 115

Attachments

Attachment 1 Council Resolution 08-02 . . . . . . . . . . . . . . . 123

TABLE OF CONTENTS 5
Attachment 2 Comments of Canada . . . . . . . . . . . . . . . . . 127

Attachment 3 Comments of United States . . . . . . . . . . . . . . 131

Attachment 4 Comments of Mexico . . . . . . . . . . . . . . . . . 135

6 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Acronyms

ALCA ALCA, S.A. de C.V.

ALDF Legislative Assembly of the Federal District (Asamblea

Legislativa del Distrito Federal)

CEC Commission for Environmental Cooperation

CFPP Federal Code of Criminal Procedure (Código Federal de

Procedimientos Penales)

CNDH National Human Rights Commission (Comisión Nacional

de los Derechos Humanos)

COA Annual Operating Report (Cédula de Operación Annual)

CPF Federal Criminal Code (Código Penal Federal)

DOF Official Gazette of the Federation (Diario Oficial de la

Federación)

Inacipe National Institute of Criminal Sciences (Instituto Nacional

de Ciencias Penales)

Inapam National Senior Citizens’ Institute (Instituto Nacional de

las Personas Adultas Mayores)

INEGI National Institute of Statistics, Geography, and

Informatics (Instituto Nacional de Estadística Geografía e

Informática)

INER National Respiratory Disease Institute (Instituto Nacional

de Enfermedades Respiratorias)

JPAC Joint Public Advisory Committee

LAU Consolidated Environmental License (Licencia Ambiental

Única)

LFTAIPG Federal Transparency and Access to Governmental

Information Act (Ley Federal Transparencia y Acceso a la

Información Pública Gubernamental)

LGEEPA General Ecological Balance and Environmental

Protection Act (Ley General del Equilibrio Ecológico y la

Protección al Ambiente)

7
MPF Office of the Federal Public Prosecutor (Ministerio

Público Federal)

NAAEC North American Agreement on Environmental

Cooperation

NGO Nongovernmental organization

NOM Mexican Official Standard (Norma Oficial Mexicana)

PGR Attorney General of the Republic (Procuraduría General

de la República)

Profepa Federal Attorney for Environmental Protection

(Procuraduría Federal de Protección al Ambiente)

PRTR Pollutant Release and Transfer Register (Registro de

Emisiones y Transferencia de Contaminantes)

RRP Regulation to LGEEPA on Hazardous Waste (Reglamento

de la LGEEPA en materia de Residuos Peligrosos)

Secodam Ministry of Control and Administrative Development

(Secretaría de la Contraloría y Desarrollo Administrativo)

Sedesol Ministry of Social Development (Secretaría de Desarrollo

Social)

Sedue Ministry of Urban Development and Ecology (Secretaría

de Desarrollo Urbano y Ecología)

Semarnap Ministry of the Environment, Natural Resources and

Fisheries (Secretaría de Medio Ambiente, Recursos Naturales

y Pesca)

Semarnat Ministry of the Environment and Natural Resources

(Secretaría de Medio Ambiente y Recursos Naturales)

SIEM Mexican Business Information System (Sistema de

Información Empresarial Mexicano)

SMADF Ministry of the Environment of the Federal District

(Secretaría de Medio Ambiente del Distrito Federal)

SMGVDF Legal Minimum Wage in the Federal District (Salario

Mínimo General Vigente en el Distrito Federal

TCADF Administrative Tribunal of the Federal District (Tribunal

de lo Contencioso Administrativo del Distrito Federal)

VOC Volatile organic compound

UNDP United Nations Development Program

ZMVM Mexico Valley Metropolitan Area (Zona Metropolitana del

Valle de México)

8 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
1. Executive Summary

Articles 14 and 15 of the North American Agreement on Environmental Cooperation (“NAAEC” or the “Agreement”) establish a process

allowing persons residing or established in Canada, Mexico or the

United States to file submissions asserting that a Party to NAAEC is failing to effectively enforce its environmental law. Under the Agreement,

this process may give rise to the publication of a factual record. The Secretariat of the North American Commission for Environmental Cooperation (CEC) administers this process.

On 17 June 2003, Ángel Lara García (the “Submitter”) filed a submission with the CEC Secretariat asserting that Mexico is failing to effectively enforce its environmental law in connection with a polystyrene

latex manufacturing and impregnation plant operated by ALCA, S.A. de

C.V. (“ALCA”). Submission SEM-03-004 (ALCA-Iztapalapa II) asserts

that the government of Mexico is failing to effectively enforce its environmental law with respect to the crimes provided in Articles 414, first

paragraph and 415, paragraph I of the Federal Criminal Code (Código

Penal Federal—CPF) and the management of hazardous materials and

wastes, pursuant to the first paragraph of Article 150 of the General

Ecological Balance and Environmental Protection Act (Ley General del

Equilibrio Ecológico y la Protección al Ambiente—LGEEPA).1 On 9 June

2005, by means of Council Resolution 05-05, the CEC Council instructed

the Secretariat to prepare a factual record with respect to the matter

raised in the submission.

In preparing the factual record, the Secretariat considered information available to the public; information provided by Mexico, ALCA,

the Submitter, and other interested parties; and technical information

produced by the Secretariat through independent experts. This factual

record presents relevant information concerning whether or not Mexico

is failing to effectively enforce Article 150 of LGEEPA and Articles 414,

first paragraph and 415, paragraph I of the CPF, with respect to the

9

1. “In accordance with Article 14 of the North American Agreement on Environmental

Cooperation, I hereby request that my submission be examined, as I assert that the

Mexican State is failing to effectively enforce its environmental laws...” Submission,

p. 1.
matter raised in the submission. In relation to the enforcement of

LGEEPA Article 150, first paragraph, the factual record includes the

period September 1994–August 2005, and in relation to the enforcement

of CPF Articles 414, first paragraph and 415, paragraph I it encompasses

the period March 1997–August 2000.

Since May 1994, the Submitter applied to various governmental

authorities to put forward his case, request advice, or file complaints

against public servants.2 In the present case, the Submitter stated that

there were intense odors causing him nuisance and harming his health.

The inspection reports prepared by the authorities note the presence of

“solvent odors caused by a lack of collection and conduction of the emissions”3 and “vapors emanating profusely from outlets at the wall giving

onto the described outdoor area, without any filter, washer, or chimney.”4

The Secretariat found that from 1994 to 2005, the Federal Attorney

for Environmental Protection (Procuraduría Federal de Protección al

Ambiente—Profepa) conducted a total of 11 inspection visits and issued

administrative decisions in which two partial closings were ordered,

one in 1994 and one in 1997. The total of the fines imposed on ALCA for

violations on air emissions and hazardous materials and waste management was 46,207.30 pesos.

The first order closing ALCA in 1994 was lifted after the corrective

measures ordered were taken. However, other air emission-related

instances of noncompliance persisted, which were not reported for purposes of the 1994 closure but the repeat offence of which led to a second

closing order in 1997. On this occasion, ALCA did not comply with the

conditions imposed by Profepa, alleging that they were technically

impossible to implement. ALCA also stated that, according to its analyses, its pollutant emissions did not exceed the limits established in the

applicable standards. Profepa ultimately deviated from the conditions

imposed and accepted alternative enforcement measures and the criterion proposed by ALCA for analysis of its pollutant emissions.

10 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

2. These entities included the Federal Attorney for Environmental Protection (Profepa),

the Attorney General of the Republic (PGR), the Ministry of Public Service (SFP), the

National Human Rights Commission (CNDH), and the National Senior Citizens’ Institute. Other authorities who took cognizance of the matter were the Ministry of the Environment of the government of Mexico City and the Borough of Iztapalapa, Federal

District.

3. Report to the CNDH by the Industrial Inspection Branch (Dirección General de Inspección

Industrial) of Profepa, dated 2 October 1997.

4. Inspection of 9 September 1996; report by the Risk Administration Division, Civil Protection Branch, Federal District.
The Ministry of the Environment of the Federal District (Secretaría

del Medio Ambiente del Distrito Federal—SMADF) conducted 10 inspection visits of ALCA’s facility and closed it in 1999 for noncompliance

with air emissions — and wastewater discharge-related legal provisions. The closing was lifted on 4 November 1999, pursuant to a judgment of 13 July 1999 by the Administrative Tribunal of the Federal

District (Tribunal de lo Contencioso Administrativo del Distrito Federal—

TCADF).

The Office of the Federal Public Prosecutor (Ministerio Público

Federal—MPF), the federal entity responsible for the prosecution of

offenses, pursued criminal prosecution against ALCA on four occasions, requesting arrest warrants for ALCA officials. On all four occasions, the district judge denied the arrest warrant for lack of evidence to

substantiate the probable existence of an offense.

In 2000 the MPF decided not to pursue further criminal prosecution, for lack of evidence. The MPF found that it was essential to perform

clinical examinations of Ángel Lara García, his wife, and his son in order

to prove the alleged environmental offenses. On this matter the Secretariat requested the opinion of an environmental criminal law expert, who

concluded that although the decision not to pursue further criminal

prosecution had basis in law,5 as to the merits of the case — the possibility or impossibility of substantiating the offense — the MPF had other

evidence-gathering methods contemplated in criminal law at its disposal but did not use them.

In November 2005 ALCA informed the Secretariat that due to market conditions it would be going out of business by the end of the year.

The closing of the company was confirmed by information from borough of Iztapalapa authorities.6

2. Summary of the Submission

The Submitter asserts that Mexico is failing to effectively enforce

its environmental laws with respect to the operation of a footwear mateSUMMARY OF THE SUBMISSION 11

5. Based on CPEUM Articles 21 and 102 paragraph A; CFPP Article 137; Articles 1, 2 paragraphs I and V, 8 paragraph I subparagraphs (j) and (m), 14, 15, and 18 of the Attorney

General of the Republic Act (Ley Orgánica de la Procuraduría General de la República); Articles 2, 3, 5, and 31 paragraph VI of the Regulation to the Attorney General of the Republic Act; orders A/006/92 and A/086/97, and Article 27 of Circular C/005/99 issued by

the PGR.

6. Document CPC/39I5/2006, dated 13 February 2006, issued by the Coordinator of Civil

Protection, Borough of Iztapalapa.
rials factory owned by the company ALCA, located on a property adjacent to the Submitter’s home in the Santa Isabel Industrial neighborhood

of the borough of Iztapalapa, Mexico City.7 The Submitter asserts that

the factory’s air emissions and ALCA employees’ handling of hazardous substances and wastes violate LGEEPA Article 150, first paragraph

and Articles 414, first paragraph and 415, paragraph I of the CPF.8 In particular, the Submitter asserts that the company is unlawfully carrying on

the storage, disposal, and discharge of substances considered environmentally harmful and hazardous without applying prevention and

safety measures.9

The Submitter maintains that ALCA, without applying prevention or safety measures, emits, releases, or discharges environmentally

harmful gas, smoke, dust, or pollutants into the atmosphere.10 The

Submitter asserts that the company is failing to manage hazardous

materials and wastes as prescribed by LGEEPA and the applicable Mexican Official Standards (Normas Oficiales Mexicanas—NOMs) issued by

the Ministry of the Environment and Natural Resources (Secretaría de

Medio Ambiente y Recursos Naturales—Semarnat).11The Submitter asserts

that these alleged violations are causing pollution harming his and his

family’s health.12 He further asserts that Profepa, despite having found

violations during an inspection of the factory, terminated the processing

of a citizen complaint filed by the Submitter without taking the actions

necessary to stop the alleged violations.13

3. Summary of Mexico’s Response

In its response of 4 December 2003, Mexico focuses its arguments

on three principal aspects of the Submission: i) enforcement acts against

ALCA for violation of LGEEPA Article 150, first paragraph in response

to a citizen complaint filed by the Submitter; ii) investigation of the

offense contemplated in CPF Article 415, paragraph I in response to a

criminal complaint; and iii) alleged failure to resolve a proceeding filed

with Semarnat’s Internal Control Agency claiming “collusion between

12 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

7. Submission, pp. 1, 3–4.

8. Ibid., pp. 3–4.

9. Ibid., p. 3.

10. Ibid., p. 3.

11. Ibid., p. 4.

12. Ibid., p. 2.

13. Ibid., and appendix to the submission: Administrative proceeding by the Public

Affairs Branch (Dirección General de Atención Ciudadana) of the Ministry of Control and

Administrative Development (Secretaría de Contraloría y Desarrollo Administrativo—

Secodam), dated 23 October 2002.
inspectors and ALCA in an attempt to cover up responsibilities and

thereby avoid sending the case to trial.”14

As regards the alleged failure to enforce LGEEPA Article 150, first

paragraph, Mexico refers to the citizen complaint that the Submitter

filed on 10 November 1995, but provides no further information

because, it claims, the file was lost in a flood of the archives. However,

Mexico asserts that the process was concluded pursuant to law without

initiation of a criminal investigation.15 In addition, Mexico states that

other proceedings were initiated against ALCA, including: i) a filing

dated 10 November 1998 submitted to the borough of Iztapalapa by the

coordinator of the Public Affairs Center (Casa de Atención Ciudadana) of

the Legislative Assembly of the Federal District (Asamblea Legislativa del

Distrito Federal—ALDF), noting the concern of the company’s neighbors

that it was releasing toxic gases such as hexane, heptane, styrene, toluene, and xylol; ii) a citizen complaint of 19 November 1998, filed by the

coordinator of the Public Affairs Center against ALCA, alleging toxic

gas emissions; and iii) a second citizen complaint filed by the Submitter

on 14 September 2000.16 Mexico states that this last proceeding, after

consolidation with others, led to an inspection on 27 July 2001 during

which facts and omissions constituting offenses under LGEEPA, as well

as the air pollution, hazardous waste and environmental impact regulations thereunder, were observed. Further to the inspection, on 7 September 2001, ALCA was fined 2,421 pesos, the equivalent of 60 days’

minimum wage in the Federal District.17 Mexico states that after the

fine was imposed, the consolidated citizen complaint file was deemed

closed.18

As regards the violation of CPF Article 415, paragraph I, Mexico

refers to a complaint of 14 March 1999 that gave rise to a criminal investigation. Mexico explains that this complaint was filed against ALCA and

its representatives. Mexico states that, based on a legal opinion, it was

decided 22 August 2000 not to proceed with criminal prosecution (nolle

prosequi), as the investigations “did not fully substantiate the corpus

delicti contemplated and penalized by Article 415, paragraph I of the

Federal Criminal Code nor the probable liability of the suspects, since it

may be deduced from the proceedings that although the facts asserted

SUMMARY OF MEXICO’S RESPONSE 13

14. Response of the Party, p. 1.

15. Ibid., p. 2.

16. Ibid., pp. 2–3.

17. Ibid., p. 3.

18. Ibid., p. 3.
may constitute an offense, it is impossible to prove the existence of the

offense due to insuperable material obstacle, the evidence provided

being insufficient to consider the facts substantiated.”19

Concerning the lack of resolution of a proceeding filed with

Semarnat’s internal control agency, Mexico states that the proceedings

initiated by the Submitter against Profepa officials were concluded

without any sanctions being imposed because sufficient evidence of the

public servants’ alleged liability was not found. Mexico provides no further comment or documentary evidence in this regard, arguing that this

information was classified as confidential under Article 13, paragraph V

of the Federal Transparency and Access to Governmental Information

Act (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental—LFTAIPG) and Article 26 of the Regulation thereunder.20

4. Scope of the Factual Record

On 23 August 2004, the Secretariat notified the CEC Council that

the submission warranted the preparation of a factual record. In its recommendation to Council, the Secretariat stated that Mexico’s response

did not provide sufficient information regarding the effective enforcement of LGEEPA Article 150, first paragraph and CPF Articles 414, first

paragraph and 415, paragraph I in relation to ALCA’s activities. It further stated that Mexico’s response did not address central issues raised

in the submission about ALCA’s application of safety measures in relation to: i) the alleged storage, disposal, and discharge of substances

considered hazardous and environmentally harmful; ii) alleged emissions of environmentally harmful gas, smoke, dust, or pollutants; and

iii) management of hazardous materials and wastes as prescribed by

LGEEPA and the relevant NOMs issued by Semarnat.

14 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

19. Ibid., pp. 3–6.

20. LFTAIPG Article 13: “Information may be classified as reserved if it may... V. Seriously prejudice the verification of legal compliance, the prevention or prosecution of

offenses, the operation of justice, the collection of taxes, the operation of migration

control, or procedural strategies in judicial or administrative proceedings as long as

decisions therein have not definitively closed the case.”

Regulation to LFTAIPG Article 26: “The directors of the administrative units of the

executive departments and quasi-governmental entities shall classify the information

at the time when:

I. the information is produced, obtained, acquired, or transformed, or

II. an access to information request is received, in the case of documents not previously classified.

Classification may refer to a file or a document.”
In addition, the Secretariat’s recommendation noted that Mexico’s

response provided information about an inspection visit conducted on

27 July 2001 but did not discuss three other administrative proceedings

against ALCA that are mentioned in a document issued by Profepa.21

The information presented by Mexico was also insufficient in that

only an incomplete copy of the legal opinion on which the Office of the

Public Prosecutor decided not to proceed with criminal prosecution was

attached to the response; therefore, it was impossible to ascertain in

greater detail the reasoning behind the decision that the existence of

environmental offenses allegedly committed by ALCA and its officials

could not be substantiated.

In Council Resolution 05-05 of 9 June 2005 (see Appendix 1 for full

text), the Council decided unanimously:

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 with respect to the issues raised in the submission, taking the above-noted considerations into account; ...22

The Council noted that the submission alleges “a lengthy history

of releases of toxic chemicals, as well as continuation of such releases

following enforcement action taken by the Government of Mexico in

2001.”23 The Council Resolution authorizes the Secretariat to include

relevant facts dating from prior to the entry into force of NAAEC on

1 January 1994.

SCOPE OF THE FACTUAL RECORD 15

21. Document by Profepa Environmental Complaints and Social Participation Branch

(Dirección General de Denuncias Ambientales y Participación Social) of 14 February 2002.

22. In its Resolution, the Council considered the submissions filed 25 November 2002 and

17 June 2003 by Ángel Lara García as well as the response offered by the government

of Mexico on 4 December 2003; reviewed the notification of 23 August 2004, whereby

the Secretariat recommended to Council the preparation of a factual record in regard

to the submission; reaffirmed that the focus of the factual record process is to examine

facts pertinent to assertions that a party is failing to effectively enforce its environmental law, not the effectiveness of the law in question; recognized that a party, in its

response to the Secretariat in respect of a submission, is not in a position to respond to

assertions or matters that were not raised in the submission; and noted that LGEEPA

Article 161 was not raised by the Submitter, but by the Secretariat. It further noted

that, among other things, the submission alleges a lengthy history of releases of toxic

chemicals, as well as continuation of such releases following enforcement action

taken by the government of Mexico in 2001.

23. Council Resolution 05-05, of 9 June 2005.
Consequently, this factual record presents relevant information

concerning:

(i) alleged violations by ALCA of LGEEPA Article 150, first paragraph and CPF Articles 414, first paragraph and 415, paragraph I;

(ii) inspection visits, administrative proceedings, or other governmental actions taken in connection with ALCA between 1994 and

2005 in relation to its history and continuation of toxic substance

emissions, as well as its management of hazardous substances and

wastes;

(iii) Mexico’s alleged failure to effectively enforce LGEEPA Article 150,

first paragraph and CPF Articles 414, first paragraph and 415,

paragraph I in the case of ALCA.

Pursuant to Council Resolution 05-05 and NAAEC provisions, this

factual record focuses on Mexico’s acts of environmental law enforcement without presenting an assessment thereof or a determination of the

corresponding extent of ALCA’s environmental compliance, so that

interested persons may reach their own conclusions.

5. Information-gathering Process

In accordance with Council Resolution 05-05, the Secretariat published its general plan for preparation of the factual record (see Appendix 2) on 21 July 2005. The document sets out the Secretariat’s intention

to gather and compile relevant information concerning ALCA’s air

emissions and its management of hazardous substances and wastes.

Pursuant to NAAEC Article 15(4), in preparing 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 non-governmental organizations or persons; (c) submitted by the Joint Public Advisory Committee;

or (d) developed by the Secretariat or by independent experts.”

In order to prepare the factual record, the Secretariat retained Ing.

Enrique Nava24 and Dr. Israel Alvarado25 as independent external con16 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

24. Ing. Nava, a Profepa-accredited auditor, has more than fifteen years’ experience with

environmental audits, on-site environmental assessments, and contaminated site

investigations, with particular emphasis on the chemical industry.

25. Dr. Alvarado holds a doctorate of laws from the National Autonomous University of

Mexico (Universidad Nacional Autónoma de México) and is a research professor at the

National Institute of Criminal Sciences (Instituto Nacional de Ciencias Penales).
sultants on environmental engineering and environmental criminal

law, respectively. These consultants provided expertise on toxic chemical emissions, management and disposal of hazardous materials and

wastes, and the interpretation and enforcement of environmental criminal law.

Pursuant to NAAEC Articles 15(4) and 21(1)(a), on 1 November

2005 the Secretariat asked Mexico to provide information relevant to the

preparation of the factual record.26 Likewise, the Secretariat requested

the other two NAAEC Parties, JPAC, ALCA, business organizations,

research institutes, and any other interested party to present relevant

information. Appendices 4 and 5 contain the Secretariat’s information

requests.

On 24 November 2005, ALCA informed the Secretariat that the

company would be going out of operation in late December of that year27

and invited the Secretariat to visit its facility prior to its final closing and

dismantlement. The Secretariat’s legal officer, accompanied by the Secretariat’s technical consultant, visited the facility on 1 December 2005.

ALCA personnel indicated during the tour that they would send documents and other information relevant to the preparation of the factual

record at a later date. The Secretariat did not receive any information nor

succeed in contacting the company’s officials subsequent to the visit.

On 10 February 2006, Mexico provided information to the Secretariat for preparation of the factual record in the form of a table summarizing Profepa’s actions concerning ALCA.28 On 11 April, the Secretariat

requested additional information from Mexico29 and on 20 April the Secretariat’s legal officer held a meeting with Profepa and Semarnat representatives.30 At this meeting, the Secretariat reiterated its request for

documentation of inspection and enforcement actions by the authorities

INFORMATION-GATHERING PROCESS 17

26. See Appendix 4.

27. Telephone conference with ALCA operations manager on 24 November 2005. The

exact date of the plant’s closing was not provided during this conference, but the

ALCA manager provided assurance that it would occur before the end of the year.

28. Documents PFPA-SII-DGIFC-0143/2006 and PFPA-SII-DGIFC-0143/2006, of 10 February 2006, by Profepa’s Director General of Pollution Source Inspection.

29. Document A14/SEM/03-004/63/STP to Legislation and Consultation Branch

(Dirección General Adjunta de Legislación y Consulta) of Semarnat.

30. Meeting of 20 April 2006 with representatives of Legislation and Consultation Branch

of Semarnat and with the Profepa Office in the Mexico Valley Metropolitan Area

(Zona Metropolitana del Valle de México—ZMVM).
in relation to ALCA. Mexico sent copies of Profepa administrative proceedings31 and administrative proceedings of the government of Mexico

City,32 and stated that the criminal proceeding was in the possession of

the Office of the Attorney General of the Republic (Procuraduría General

de la República—PGR), that Semarnat and Profepa had been denied

access to it and that, consequently, it could not be provided to the Secretariat.33

Through the Access to Information System (Sistema de Solicitudes de

Información) of the Federal Access to Information Institute (Instituto Federal de Acceso a la Información Pública), the Secretariat’s consultant on

environmental criminal law requested from the PGR the information

that served as a basis for not to proceed with criminal prosecution. The

Secretariat sent Mexico a memo requesting clarifications concerning the

criminal investigation of ALCA.34 The government of Mexico did not

respond to the request for clarification, nor did it indicate the reasons

why it failed to respond. The Secretariat invited Semarnat to state any

reasons why it might be impossible for it to provide further information,

but received no response.35

Other authorities of the federal government and of Mexico City

submitted information on sound management of chemicals,36 the history of the Submitter’s filings,37 and the land use regime in Iztapalapa.38

They also confirmed the closing of ALCA,39 noted their lack of jurisdic18 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

31. Document 112/003310/06, of 4 May 2006, from the Legal Affairs Office (Coordinación

General Jurídica) of Semarnat, received by the Secretariat on 10 May 2006. Originally,

the Profepa administrative file was believed to have been lost in a flood of the archive,

as the Party stated in its response of 4 December 2003.

32. Document 112/06, of 20 June 2006, in which the Legal Affairs Office of Semarnat gave

information to the Department of Environment of the Federal District.

33. On 10 May 2006, the Legislation and Consultation Branch informed the Secretariat by

telephone that the PGR had denied Profepa and Semarnat access to the record of the

criminal proceeding.

34. Request by Secretariat to Legal Affairs Office of Semarnat, dated 7 September 2006.

35. E-mail of 23 November 2006 to Legal Affairs Office of Semarnat.

36. E-mail of 9 December 2005 from Assistant Director of Technical Reporting, Environmental Emergency Response Center (Centro de Orientación para la Atención de

Emergencias Ambientales) of Profepa.

37. Document INER/DG/FCV/059/06, of 15 February 2006, from the Director, National

Respiratory Disease Institute (Instituto Nacional de Enfermedades Respiratorias).

38. Document D-96/DPEDU/1.0.0/0366, of 7 February 2006, from Urban Development

Branch (Dirección General de Desarrollo Urbano), government of the Federal District.

39. Document CPC/39I5/2006, of 13 February 2006, from Coordinator, Civil Protection,

borough of Iztapalapa.
tion to respond to the Secretariat’s request,40 and stated that the information requested was classified as restricted.41

The Submitter filed with the Secretariat a certification of facts (fe de

hechos) drawn up by a notary public.42 In addition, the Submitter submitted a photographic appendix and a document containing statements

related to ALCA’s operations.43 The Secretariat held interviews with the

Submitter in order to obtain further details and clarify information.44

NAAEC Article 15(5) stipulates 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.” Article 15(6) stipulates that “[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 Council on 6 August

2007. On 19 September 2007 the United States and Canada submitted

their respective comments, as did Mexico on 20 September 2007.

6. Content and Scope of the Environmental Law in Question

The environmental law cited in the submission underwent revisions in 1996 and 2002. Of particular note are the revisions to the criminal

provisions; in 1996 the environmental offenses were incorporated into a

single body of law — the CPF — for greater order and systematization.45

With this reform, the offenses previously contemplated in LGEEPA and

other special environmental laws46 were incorporated into the CPF

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 19

40. Document SJ-414/2005, of 5 December 2005, from Assistant Director, Legal Affairs,

National Senior Citizens’ Institute (Instituto Nacional para la Atención de las Personas

Adultas Mayores); Document DGDU.05/DCDURT/1600, of 9 December 2005, from

Director, Control of Urban Development and Land Regularization, Department of

Urban Development and Housing (Secretaría de Desarrollo Urbano y Vivienda), government of the Federal District.

41. Document C.G.150/2006, of 1 March 2006, from Director, Legal and Governmental

Affairs, borough of Iztapalapa, government of the Federal District.

42. Certification of facts by Lic. José Luis Latapí Fox, Notary Public no. 120 of the Federal

District, by notarized document no. 38,241, of 10 January 2005.

43. Document of 13 February 2006 submitted to Secretariat by Ángel Lara García.

44. Meeting with the Submitter on 21 April 2006 and telephone conferences held from

February to July 2006.

45. Statement of reasons for executive order revising, adding, and repealing various provisions of the CPF, Chamber of Deputies bill, Record of Debates of the Chamber of

Deputies of the United Mexican States, 15 October 1996.

46. Prior to the reform, LGEEPA Articles 183–7, Articles 30–1 of the Federal Hunting Act

(Ley Federal de Caza) and Article 58 of the Forests Act (Ley Forestal) defined various

environmental offenses.
under the title Delitos Ambientales (Environmental Offenses). In the 2002

revision of the CPF, the title of the chapter was changed to Delitos contra

el Ambiente (Offenses against the Environment) and an attempt was made

to create a fairer and more graduated criminal liability system.47

6.1 CPF Article 414, first paragraph, and Article 415 paragraph I

The submission cites the offenses defined in Article 414, first

paragraph (environmental harm caused by the illegal or unsound management of hazardous substances) and Article 415, paragraph I (environmental harm caused by releasing or authorizing or ordering the

release of pollutants into the air) of the CPF of 2002. In view of the dates

when the Submitter filed the complaint with the PGR and when the

Office of the Public Prosecutor’s proceedings took place, the text of Article 415, paragraphs I and II that was in force from 1996 to 2000 is also analyzed, as it defined criminal offenses equivalent to those cited in the

submission.48 The table below compares the versions of the CPF articles

cited by the Submitter with the provisions in force when the acts of

authority occurred:

Table 1. Comparison of versions of CPF articles

20 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

47. Statement of reasons for revision and addition of various provisions to the CPF and

the CFPP, Executive Bill, Record of Debates of the Chamber of Deputies of the United

Mexican States, 4 October 2001.

48. “Concerning proposed Article 414, it is proposed to incorporate into this article the

conduct contemplated in the current Articles 414 and 415, paragraph I, referring to the

performance of high-risk activities and the management of hazardous waste. In both

cases, the conduct refers to the use of hazardous substances, making an unnecessary

distinction between activities considered to be high-risk due to the use of hazardous

materials, and waste management activities with the same characteristic...” Statement of reasons for revision and addition of various provisions to the CPF and the

CFPP, Executive Bill, Record of Debates of the Chamber of Deputies of the United

Mexican States, 4 October 2002. Therefore, the precursor to Article 414, paragraphs I

and II (in force in 1997) was LGEEPA Article 183.

Provisions in force when the acts

of authority occurred

Provisions cited by the Submitter

Art. 415 paragraph I (1996) Art. 414, first paragraph (2002)

Anyone who commits any of the following

acts is liable to a penalty of three months’ to

six years’ imprisonment and one thousand to

twenty thousand days’ fine:

I. Engages, without the authorization of the

competent federal authority or in violation of

Anyone who unlawfully, or without taking

preventive or safety measures, engages in,

orders, or authorizes the production, storage,

traffic, import or export, transportation,

abandonment, disposal, or discharge of, or

carries on any other activity involving,

substances considered hazardous due to their
6.2 LGEEPA Article 150

With the reform of December 1996, the LGEEPA Article 150 provisions on hazardous waste were expanded,49 resulting in the following

text:

Article 150. Hazardous materials and wastes must be managed with

adherence to this Act, its Regulation, and the Mexican official standards

issued by the Ministry on the advice of the Ministries of Trade and Industrial Development, Health, Energy, Communications and Transportation,

the Marine, and the Interior. Regulation of the management of these materials and wastes shall include, as applicable, their use, collection, storage,

transportation, reuse, recycling, treatment, and final disposal.

The Regulation and the Mexican official standards contemplated in the

preceding paragraph shall contain criteria and lists identifying and classifying hazardous materials and wastes by their degree of hazardousness,

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 21

49. LGEEPA Article 150 (text in force prior to 13 December 1996): “The Ministry, on the

advice of the Ministries of Trade and Industrial Development, Health, Energy, Mines

and Quasi-governmental Industry, Agriculture and Water Resources, and the Interior shall determine and publish in the Official Gazette of the Federation the list of

hazardous materials and wastes for the purposes of this Act.”

the terms of such authorization, in any activity with hazardous materials and wastes that

cause or may cause harm to public health, natural resources, fauna, flora, or ecosystems.

corrosive, reactive, explosive, toxic, flammable, or radioactive properties or the like,

thereby causing harm to natural resources,

flora, fauna, ecosystems, water quality, soil,

subsoil, or the environment is liable to a penalty of one to nine years’ imprisonment and

three hundred to three thousand days’ fine.

Art. 415, paragraph II (1996) Art. 415, paragraph I (2002)

Anyone who commits any of the following

acts is liable to a penalty of three months’ to

six years’ imprisonment and one thousand to

twenty thousand days’ fine:

...

II. In violation of the applicable legal provisions or Mexican official standards, emits,

discharges, or releases into the atmosphere, or

authorizes or orders the emission, discharge,

or release into the atmosphere, of gas, smoke,

or dust causing harm to public health, natural

resources, fauna, flora, or ecosystems, where

such emissions originate from fixed sources

under federal jurisdiction, pursuant to the

General Ecological Balance and Environmental Protection Act.

Anyone who commits any of the following

acts without applying preventive or safety

measures is liable to a penalty of one to nine

years’ imprisonment and three hundred to

three thousand days’ fine:

I. Emits, discharges, or releases into the atmosphere, or authorizes or orders the emission,

discharge, or release into the atmosphere of

gas, smoke, dust, or pollutants causing harm

to natural resources, fauna, flora, ecosystems,

or the environment, where such emissions

originate from fixed sources under federal

jurisdiction, pursuant to the General Ecological Balance and Environmental Protection

Act.
considering their characteristics and volumes; in addition, they shall differentiate between those of high and low hazardousness. The Ministry is

responsible for regulation and control of hazardous materials and wastes.

Likewise, the Ministry, in coordination with the entities contemplated in

this article, shall issue Mexican official standards establishing the requirements for labeling and packing of hazardous materials and wastes as well

as for risk assessment and for information on contingencies and accidents

that may arise from their management, particularly in regard to chemical

substances.

Article 150, first paragraph establishes the obligation to manage

hazardous materials and wastes as prescribed by LGEEPA and its regulations—in this case, the hazardous waste regulation—and the applicable NOMs. Article 150 also provides that the scope of the administrative

regulations comprises the use, collection, storage, transportation, reuse,

recycling, treatment, and final disposal of hazardous wastes. On 8 October 2003, the Waste Prevention and Integrated Management Act (Ley

General para la Prevención y Gestión Integral de los Residuos) was published

in the Federal Official Gazette (Diario Oficial de la Federación—DOF).

Proceedings against ALCA continued under LGEEPA and its regulation, which were applicable at the time the administrative proceedings

were brought.50

The LGEEPA provides that the regulation and control of hazardous materials and wastes are under federal jurisdiction.51 In addition to

the relevant definitions,52 it includes the responsibility of the hazardous

waste generator53 and an obligation to both notify the authorities when

such waste is generated54 and to obtain the authorization to install and

operate waste management, treatment, and final disposal systems.55

22 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

50. Transitory Article 4 of the Waste Prevention and Integrated Management Act. It

should be noted that the Regulation to LGEEPA on Hazardous Waste, published in

the DOF on 25 November 1998, was repealed by the Regulation to the Waste Prevention and Integrated Management Act, published in the DOF on 30 November 2006.

51. LGEEPA Article 5, paragraph VI.

52. LGEEPA Article 3, paragraph XVII: “Hazardous material. Elements, substances,

compounds, waste or mixtures of them that, notwithstanding their physical state,

represent a risk to the environment, health or natural resources, due to their corrosive, reactive, explosive, toxic, flammable or biological-infectious characteristics.”

Paragraph XXXII: “Hazardous wastes. All those wastes, in any physical state, which,

due to their corrosive, reactive, explosive, toxic, flammable or biological-infectious

characteristics, represent a risk to ecological balance or the environment.”

53. LGEEPA Article 151.

54. Ibid.

55. LGEEPA Article 151 bis, paragraph III.
For its management and generation of hazardous materials and

wastes, ALCA was subject to the following specific obligations with

respect to Profepa inspection:

• store hazardous wastes under safe conditions and in areas

whose dimensions are sufficient to prevent spills and meet the

specifications of the hazardous waste regulation;56

• sound management of hazardous materials used by ALCA (styrene, xylene, toluene, hexane, and heptane);57

• conduct a hazardousness analysis of the waste generated by

ALCA;58

• register as a hazardous waste generator;59

• possess the delivery, shipping, and receipt documents for hazardous waste;60

• possess a log of hazardous waste entries and exits to/from the

warehouse;61

• submit a semi-annual report to Semarnat on hazardous waste

movements occurred.62

NOM-052-SEMARNAT-1993,63 updated in June 2006,64 establishes

the characteristics for a waste to be considered hazardous; listing such

wastes and setting the limits making waste hazardous as a function of

their toxicity to the environment.65 Although ALCA’s production activiCONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 23

56. RRP Articles 8, paragraph VII, 14, paragraph I, and 15.

57. See section 8 of this document on the NOMs applicable to sound management of hazardous materials.

58. RRP Article 6.

59. RRP Article 8, paragraph I.

60. RRP Article 23.

61. RRP Article 21.

62. RRP Article 8, paragraph XI.

63. NOM-052-SEMARNAT-1993, Establishing the characteristics and list of hazardous

wastes as well as the threshold above which a waste is considered hazardous due to

its toxicity in the environment, published in the DOF on 22 October 1993.

64. NOM-052-SEMARNAT-2005, Establishing the characteristics, identification procedure, classification, and lists of hazardous wastes, published in the DOF on 23 June

2006.

65. NOM-052-SEMARNAT-1993 contains lists of hazardous waste classifications per

industry and process, per nonspecific source, and per waste from raw materials, bags

or containers in the production of paints.
ties are not specifically listed in this NOM,66 certain wastes derived from

nonspecific sources are listed.67 This standard is relevant to the assertions concerning the effective enforcement of LGEEPA Article 150, first

paragraph, with respect to the sound management of hazardous waste,

and CPF Article 415, paragraph I (in force in 1996), which defines

offenses involving the use of hazardous materials and wastes.

6.3 Context of the Environmental Law in Question

6.3.1 Environmental Law Enforcement by Profepa

a. Profepa’s Jurisdiction over Odors and Emissions

The system delimiting the powers of the federation, the states, and

the Federal District with respect to environmental matters is established

in LGEEPA Articles 7 and 9, while the respective powers regarding air

pollution are defined in Articles 111 bis and 112. The law provides that,

in principle, the Federal District has the power to prevent and control air

pollution from fixed sources considered to be commercial establishments, with the exception of sectors under federal jurisdiction.

Since the Federal District and the states were granted the same

powers with respect to the environment in 1996, where provisions on air

emissions refer to the states they must be construed as referring to the

Federal District as well:

Article 9. In respect of preservation of ecological balance and environmental protection, the powers of the Government of the Federal District are as

provided by Articles 7 and 8 hereof, subject to the legal provisions enacted

by the Legislative Assembly of the Federal District [emphasis added].

Article 7. The powers of the States [hence the Federal District] are as follows, subject to the Act and the applicable local laws:

...

III. Prevention and control of air pollution generated by fixed sources

operating as industrial establishments as well as by mobile sources not

under federal jurisdiction pursuant to this Act.

24 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

66. Only styrene-butadiene latex (SBL) production is listed in the NOM. SBL is used in

carpet backing and paper coating. The Styrene Forum, glossary, online at <http://

www.styreneforum.org/glossary_index_es.html#l/> (viewed 2 October 2006).

67. Appendix 3, table 2, paragraph 1, includes empty containers and drums used in hazardous waste management, used lubricating oils and used solvent waste (from

xylene).
Article 112. In respect of air pollution prevention and control, the governments of the States, the Federal District, and the Municipalities, in accordance with the distribution of powers set out in Articles 7, 8, and 9 of this

Act as well as local legislation:

I. Shall control air pollution on premises and in areas under local jurisdiction as well as from fixed sources operating as industrial, commercial, or service establishments, provided that they are not covered by

Article 111 Bis of this Act [emphasis added].

As Article 112 indicates, the Federal District’s jurisdiction over air

emissions from fixed sources operating as industrial establishments is

not absolute. There are specific cases in which, pursuant to law, the federal government has jurisdiction:

Article 111 Bis. The authorization of the Ministry shall be required for the

operation of point sources under federal jurisdiction that release or may

release odors, gases or solid or liquid particulates into the atmosphere.

For the purposes of this Act, the chemical, petroleum and petrochemical,

paint and dye, automotive, pulp and paper, metallurgy, glass, electrical

power generation, asbestos, cement and lime, and hazardous waste treatment industries are considered fixed sources under federal jurisdiction

[emphasis added].

The regulation enacted for this purpose shall determine the specific

subsectors belonging to each of the aforementioned industrial sectors

whose establishments shall be subjected to the provisions of federal law as

regards air pollutant emissions [emphasis added].

The definition of the industrial subsectors68 appeared for the first

time in an administrative decision — not a regulation — published in the

DOF on 11 April 1997 and revised on 9 April 1998.69 The list contains two

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 25

68. This list of subsectors is based on the Mexican Classification of Activities and Products (Clasificación Mexicana de Actividades y Productos—CMAP), an economic activity

classification system developed by the National Institute of Geography, Statistics,

and Informatics (Instituto Nacional de Geografía, Estadística e Informática—INEGI) that

groups economic data by classes of activity. CMAP is currently being replaced by the

North American Industry Classification System (NAICS).

69. The decision published in the DOF on 11 April 1997 and its subsequent revision and

augmentation by the order published 9 April 1998 established the mechanism for

obtaining the Consolidated Environmental License (Licencia Ambiental Única) and

Annual Operating Report (Cédula de Operación Annual). A notice published 18 January 1999 in the DOF made public the instructions for obtaining the Consolidated

Environmental License and the application form for the Consolidated Environmental

License for Industrial Establishments under Federal Jurisdiction, as well as the

Annual Operating Report.
basic criteria for determining which subsectors are included: i) it is

among the sectors contemplated in LGEEPA Article 111 bis, and ii) it

emits odors, gases, or solid or liquid particles into the atmosphere from

its production processes.70 The decision states that for the chemical

industry,synthetic rubber manufacturing and coating of parts when rubber is

manufactured are under federal jurisdiction. ALCA’s operating license

application states that its production process includes manufacturing of

polystyrene latex and impregnation of parts.71

Lastly, under LGEEPA Article 111 bis, the federal government has

jurisdiction over odors from point sources under federal jurisdiction. In

contrast, LGEEPA Article 8, paragraph VI provides that municipalities

are competent to enforce provisions related to odors from commercial

and service establishments, but not industrial establishments.72

Nevertheless, the Profepa office in the Mexico Valley Metropolitan

Area (Zona Metropolitana del Valle de México—ZMVM), in its response

to the Secretariat’s information request for preparation of the factual

record, stated that ALCA’s air emissions are not under its jurisdiction:

Air emissions from the company [ALCA], if any, are under the jurisdiction

of the Ministry of the Environment of the Department of the Federal District; the company has ceased to be a fixed source under federal jurisdiction, according to an entry in the DOF for 13 December de 1996.73

This statement contrasts with specific cases of environmental law

enforcement by the federal authorities, since from 1994 to 1997, Profepa

conducted five inspection visits to ALCA, closing the facility on two

occasions due to air pollution-related violations. Similarly, ALCA’s

emission permits were obtained from the federal authorities and

26 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

70. Other criteria include involvement of chemical reactions, thermal operations, and

smelting and tempering of metals.Instructivo General. Licencia Ambiental Única (LAU),

Semarnat, 1999.

71. Operating License Application no. 93-8975, of 16 December 1992, Appendix 2.

72. LGEEPA Article 8: “Pursuant to the provisions of this Act and the applicable local

laws, the Municipalities have the following powers:

... VI. To enforce the legal provisions related to the prevention and control of pollution

caused by noise, vibrations, thermal energy, electromagnetic and light radiation, and

odors harmful to ecological balance and the environment, from fixed sources operating as commercial or service establishments, as well as to verify compliance with any

provisions that may apply to mobile sources, except those sources that are considered

to fall under federal jurisdiction pursuant to this Act.”

73. Document issued by the Sub-delegate of inspection and enforcement from the

Delegation of Profepa in the ZMVM and sent to Secretariat through document

PFPA-SII-DGIFC-0142/2006, dated 10 February 2006, from Pollution Source Inspection Branch (Dirección General de Inspección de Fuentes de Contaminación) of Profepa.
describe a process consistent with the phrases synthetic rubber manufacturing and coating of parts when rubber is manufactured.74

b. Application of Sanctions

LGEEPA Articles 171 to 175 bis contain a chapter on sanctions for

noncompliance with the environmental law. Article 171 lists the applicable sanctions:

1. Fines. The applicable fine from 1996 to 2001 was 20 to 20,000 days’

minimum wage in the Federal District (Salario Mínimo General

Vigente en el Distrito Federal—SMGVDF); after the reform of 2001,

it is 20 to 50,000 times the SMGVDF.75

2. Closing, whether temporary or permanent, total or partial, in the

following cases:

• failure to comply with corrective measures ordered within the

term required by order;

• repeat violation, where the violations caused negative environmental impacts;

• repeated failure, on three or more occasions, to comply with any

corrective or emergency measure ordered.

3. Administrative arrest for up to 36 hours.

4. Seizure of objects related to the violation.

5. Suspension or revocation of permits.

Under article 173, in imposing the sanction, the authority must

take account of:

1. The degree of the violation, considering harm to public health and

the environment, as well as exceedence, if any, of limits set out in

a NOM.

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 27

74. Operating license application no. 93-8975, of 16 December 1992.

75. The legal daily minimum wage in the Federal District on the date of the reform of 1996

was 26.45 pesos, while in 2001 it was 40.35 pesos. National Minimum Wages Commission (Comisión Nacional de los Salarios Mínimos), online at <http://www.conasami.

gob.mx> (viewed 15 December 2006). That is, the minimum and maximum fines were

529 and 529,000 pesos, respectively, in 1996 and 807 and 2,017,500 pesos, respectively,

in 2006.
2. The economic status of the violator.

3. Repeat violation. A violator violating a provision of LGEEPA

within two years of the date on which the first violation of that provision was officially recorded, is considered a repeat violator, provided that the first violation has not been nullified.

4. The intention or negligence associated with the act, if any.

5. The benefit derived from the acts constituting the violation.

If a violation subsists upon expiry of the period granted to remedy

it, the authority may impose fines for each day elapsed without remedy

of the violation, up to a maximum fine of 50,000 times the SMGVDF.

Where the violation is repeated, the amount of the fine may be up to

twice the amount originally imposed, without exceeding twice the permitted maximum (i.e., up to 100,000 times the SMGVDF). Repeat violation may also be invoked to justify permanent closing of a facility.

6.3.2 Enforcement of Environmental Criminal Law

This section presents information on the criminal law context in

Mexico in relation to the enforcement of CPF Articles 414, first paragraph and 415, paragraph I.

a. Pursuit of Criminal Prosecution

In Mexico, the prosecution in a criminal proceeding is the Office of

the Public Prosecutor (Ministerio Público), an agency of the executive

branch that is the sole entity legally authorized to request punitive action

and redress before a judge in a criminal proceeding.76 This power, called

criminal action (acción penal), is granted to the Office of the Public Prosecutor by Article 21 of the Political Constitution of the United Mexican States

(Constitución Política de los Estados Unidos Mexicanos— CPEUM).77 At the

28 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

76. Miguel Ángel Castillo Soberanes, El monopolio del ejercicio de la acción penal del

Ministerio Público en México, Instituto de Investigaciones Jurídicas, UNAM, Mexico,

1992, p. 13, online at <http://www.bibliojuridica.org/libros/2/864/4.pdf> (viewed

29 March 2006).

77. Article 21 of the Political Constitution of the United Mexican States (Constitución

Política de los Estados Unidos Mexicanos—CPEUM): “The imposition of penalties is an

exclusive attribute of the judiciary. The investigation and prosecution of offenses is

the responsibility of the Office of the Public Prosecutor assisted by a police force

under its immediate authority and command...”
federal level, investigation and prosecution of crimes is the responsibility

of the MPF.78

At the investigation stage (averiguación previa), the MPF gathers

the evidence necessary to substantiate the probable commission of an

offense. The Federal Code of Criminal Procedure (Código Federal de

Procedimientos Penales—CFPP) grants the MPF “the broadest possible

latitude to employ means of investigation as it sees fit, even if not explicitly provided by law, provided that they are not contrary to law.”79

Where the MPF, despite having exhausted all proceedings and means of

proof at its disposal, does not succeed in substantiating the offense or

probable liability of the alleged offender, it may decide not to proceed

with criminal prosecution (nolle prosequi).

The revised CPF of 2002 sets forth a policy orientation in which

preference is given to preventive and voluntary environmental protection measures over criminal law enforcement:

It is important to note, however, that this initiative is not intended to represent a change toward a policy that emphasizes criminal law enforcement

as an instrument of environmental policy; on the contrary, it shares

the opinions of those who advocate minimal criminal law enforcement

actions and of those who emphasize the use of preventive and voluntary

legal instruments for enhancing environmental compliance.80

b. Third-party Intervention or Assistance

In relation to Profepa’s participation in the environmental criminal

justice system, LGEEPA Article 182 grants Semarnat, acting through

Profepa, the power to report to the MPF the existence of unlawful acts,

omissions, or facts that may involve offenses.81 However, during the

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 29

78. CPEUM Article 102, paragraph A, second subparagraph: “The prosecution before the

courts of all federal offenses shall be the duty of the Office of the Public Prosecutor;

and, therefore, it has the power to apply for warrants of arrest of offenders; procure

and present evidence to substantiate their liability; see that trials are conducted with

due regularity in order that the administration of justice may be prompt and efficient;

request the imposition of sentences, and intervene in all matters that the law may

determine.”

79. CFPP Article 180.

80. Statement of reasons for revision and addition of various provisions of the CPF and

the CFPP.

81. LGEEPA Article 182: “In those cases where, in the course of exercising its powers, the

Ministry takes cognizance of acts or omissions that may constitute offenses under the

applicable law, it shall make the relevant report to the Office of the Federal Public

Prosecutor.
period in question, Profepa was not authorized to collaborate with the

officers of the MPF during the investigation or the criminal proceeding.

The concept of third-party intervention or assistance during criminal investigations and proceedings was introduced in 1986 in a provision that allows the victim or person injured by any offense to assist the

MPF in a criminal proceeding.82 However, for several years there was no

legal precept or jurisprudence indicating that Profepa could intervene as

a third party. Third-party intervention was incorporated into LGEEPA

in 2002;83 therefore, for the purposes of this factual record, during the

period of criminal law enforcement in the case of ALCA, Profepa was

prevented from assisting PGR.

c. Specialized Environmental Law Enforcement Entities

During the period at issue, while the PGR had various structures

for investigating environmental offenses, Profepa lacked specialized

powers and organization.

There were specialized environmental law enforcement structures

within the PGR: at first (from 1991 to 1997), the Office of the Special

Prosecutor for Forest-related Offenses (Fiscalía Especializada para Delitos

Forestales), which became the Office of the Special Prosecutor for Environmental and Highway-related Offenses (Fiscalía Especializada para

Delitos Ecológicos y Carreteros) from 1997 to 1998, and finally (1998) was

transformed through the creation of three Offices of the Special Prosecutors for Environmental Offenses (Fiscalías Especializadas para la Atención

30 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

Any person may directly file criminal complaints corresponding to the environmental offenses defined by the applicable law.

The Ministry shall, in the areas under its jurisdiction, provide any technical or expert

reports requested by the Office of the Public Prosecutor or the judicial authorities further to complaints filed by the Environmental Offenses Commission.”

82. CFPP Article 141: “In any criminal proceeding, the victim or the person aggrieved by

an offense is entitled to: ... II. Assist the Office of the Public Prosecutor.”

This text was elaborated in 1994 by CFPP Article 365: “The suspect and his counsel are

entitled to appeal to the Office of the Public Prosecutor, as are the aggrieved or his

legitimate representatives where they have been recognized by the trial court judge,

as assistants to the Office of the Public Prosecutor, for purposes of repair of harm and

prejudice. In such case, the appeal shall be limited to matters relating to the repair of

harm and prejudice and to the injunctive redress conducive to providing it.”

83. LGEEPA Article 182, fourth paragraph, augmented 31 December 2002: “The Ministry

shall assist the Office of the Federal Public Prosecutor as prescribed by the Federal

Code of Criminal Procedure, without prejudice to any assistance provided by the victim or the person directly aggrieved by the unlawful act, on his own behalf or through

his legal representative.”
de Delitos Ambientales),84 with the authority to take cognizance of, investigate, and prosecute environmental offenses.

Profepa had powers to investigate environmental violations and,

where applicable, report to the MPF any acts, omissions, or facts indicative of the commission of offenses. However, not only was Profepa prevented from assisting until 2002, it had no specialized administrative

criminal law enforcement structure for pursuing, opening files on, gathering evidence on, or carrying out any other activity to substantiate the

existence of environmental offenses. Therefore, Profepa could not cooperate more extensively with the investigation carried out by the PGR

officers due to a lack of adequate structure and specialization. In June

2001, the Internal Regulation of Semarnat created the Federal Environmental Offenses and Litigation Branch (Dirección General de Delitos

Federales contra el Ambiente y Litigio). Furthermore, cooperation between

the PGR, Semarnat, and Profepa is structured by a cooperation agreement published in the DOF on 13 October 2004.

In relation to the MPF’s capacity in the investigation of crimes, the

2004 human development report on Mexico, published by the United

Nations Development Program (UNDP), states that “officials set aside

cases requiring greater investigative effort in order to identify a suspect

and at times leave evidence gathering to the prosecution... the Office of

the Public Prosecutor tends not to proceed with criminal prosecution in

more complex cases, arguing, for example, lack of evidence.”85

d. Standard for Substantiation of Probable Offense

The law determines at what point the MPF is considered to have

the evidence necessary to substantiate the probable commission of an

offense before a judge. At different times in the period 1993–1999, there

were two different constitutionally defined evidentiary standards that

the MPF had to meet in order to substantiate the probable commission of

an offense:elements of the offense(in force 1993–1999) and corpus delicti (in

force as of March 1999). Thus, in the period being analyzed, both criteria

were applicable at different times.

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 31

84. Order A/70/98 of the PGR, creating Offices of the Special Prosecutors for Environmental Offenses A, B and C. DOF, 10 August 1998. See also the Order A/21/91, issued

by PGR, that creates six specialized prosecution agencies reporting to MPF; DOF, 15

July 1991. Now, PGR has the Specialized Unit for Investigation of Environmental

Offenses in Accordance with Special Laws (Unidad Especializada en Investigación de

Delitos contra el Ambiente y Previstos en Leyes Especiales).

85. United Nations Development Program, Informe sobre desarrollo humano en Mexico

2004, 2005, p. 150.
The fundamental difference between these two approaches is that

the standard of elements of the offense includes that of corpus delicti and

also encompasses the manner in which the offense was committed:

either with criminal intent or with negligence. Therefore, the work

involved in substantiating an offense under the elements of the offense

standard involves determining whether the offense was committed

intentionally or merely negligently.

In contrast, the analysis under the corpus delicti standard requires

proof that the offense actually occurred (materialidad del hecho); that is, a

demonstration of the existence of a fact with all its constituent elements,

as defined by the law making it an offense.

For these reasons, at the time of the criminal investigation, substantiation of the alleged offense required a much more thorough analysis

than was required after 1999.

e. Means of Proof

For substantiation of elements of the offense or of corpus delicti, the

CFPP recognized as means of proof “anything manifesting itself as such,

provided that it is conducive and not contrary to law in the opinion of the

judge or the court.”86

In the case of the investigation of ALCA’s alleged crimes, inspection as well as expert, testimonial, and documentary evidence were the

suitable evidentiary methods to initiate a report of facts, begin an investigation, and initiate the judicial process for environmental criminal liability.87

In the opinion of the Secretariat’s legal consultant, the technical

complexity of environmental offenses normally requires the use of

expert testimony, which in this case could determine whether hazardous materials or wastes were at issue; establish the presence of harm —

or at least danger — to public health, natural resources, fauna, flora,

or ecosystems; identify the conduct as causing atmospheric emission,

release, or discharge of gases, smoke, or dust; and determine the nature

of the violation of the terms of the authorization issued by the competent

federal authority, including violation of the applicable legal provisions

or NOMs.88

32 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

86. CFPP Article 206.

87. Technical opinion on environmental criminal law by the Secretariat’s legal consultant

of 30 August 2006.

88. Ibid.
f. Application of Sanctions

The penalties prescribed by the CPF for the offenses of harm to the

environment caused by hazardous waste management and air emissions were as follows:

1. 1996–2002, set forth in Article 415, paragraphs I and II:

a. Three months’ to six years’ imprisonment, and

b. 20 to 20,000 times the SMGVDF.

2. After the reform of 2002, set forth in Articles 414, first paragraph

and 415, paragraph I:

a. One to nine years’ imprisonment, and

b. 300 to 3,000 days’ fine.

In contrast to the fine based on the minimum wage (the SMGVDF),

the CPF provides that a “day’s fine” (día multa) is equal to the net daily

revenue of the sentenced person at the time when the offense was committed, taking into account all his revenue, and provides that the lower

limit of the day’s fine is equal to the legal daily minimum wage at the

place where the offense was committed.89

The CPF provides that the judge must take the following factors

into account in sentencing:90

1. The magnitude of the harm or danger caused.

2. The nature of the offense and the methods used to commit it.

3. The circumstances under which the offense was committed,

including time, place, and method.

4. The manner and degree of the accused’s involvement in the commission of the offense.

5. The age, schooling, customs, and social and economic status of the

person who committed the offense.

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 33

89. CPF Article 29.

90. CPF Article 52.
6. The subsequent behavior of the accused in relation to the offense

committed.

7. Any other special personal conditions obtaining at the time the

offense was committed, provided that they are relevant.

7. History of ALCA in Iztapalapa

In his 17 June 2003 submission, the Submitter requested that the

Secretariat take account of the information contained in submission

SEM-02-005 (ALCA-Iztapalapa) of 25 November 2002, which contains

information on ALCA’s alleged operation in a residential zone for the

last 40 years.91 In Council Resolution 05-05, the Council considered “the

submissions filed on 25 November 2002 and 17 June 2003 by Mr. Ángel

Lara García, and the response provided by the Government of Mexico

on 4 December 2003.”

In regard of the foregoing, the Secretariat hereby provides information on those facts.

7.1 ALCA

ALCA operated in the borough of Iztapalapa from its opening in

1958 until December 2005, when it closed its facility for economic reasons and began to dismantle the plant. The company was engaged in the

production and impregnation of polystyrene latex for the footwear

industry.92

ALCA and the Submitter were neighbors from 1958 until the end of

the company’s operations in 2005. Chemicals were discharged via a hose

connection leading to an outlet onto the street, just a few meters from the

Submitter’s house.93 The storage tanks, the chemical reactor, and the furnace were located next door to the Submitter’s home, separated from it

by a wall built in 1995 and raised in 1997.94 Open-air mixing of solvents

took place on the same outdoor area as the raw materials delivery area,

34 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

91. Submitter correspondence to the CEC Secretariat, dated 3 July 2003.

92. Information provided by the ALCA operations manager during the tour conducted

by the Secretariat’s legal officer on 1 December 2005.

93. Reporte final: Visita de reconocimiento de sitio, Dames & Moore de México, S. de R.L. de

C.V., February 2006.

94. Administrative decision no. 252/97, dated 4 November 1997, issued by the Industrial

Inspection Branch.
the styrene storage tanks, the chemical reactor, and the furnace, causing

intense odors.95

ALCA’s employees mixed solvents manually on the plant’s patio

in order to prepare the “activator,” which was supplied to customers as a

latex adhesive.96As a result of conditions imposed by the environmental

authorities, this process was modified and ultimately eliminated in late

199797 after Profepa ordered the company to install a storage system for

hazardous materials.98

From 2000 to 2004, the footwear industry supplied by ALCA was

affected by market factors such as footwear imports,99 higher raw material prices,100 and low productivity.101 The consequence was the closing

of many factories, so that companies supplying the sector, e.g., ALCA,

had to curtail their operations.102 In the case of ALCA, the prevailing climate in the footwear industry led to the layoff of some of the company’s

employees in 2003.103 Operations continued, but in mid-December 2005,

the company closed due to decreased sales.104 ALCA informed the Secretariat during a visit conducted on 1 December 2005 that it had not yet

notified the environmental authorities of the cessation of operations and

dismantlement of the facility.

HISTORY OF ALCA IN IZTAPALAPA 35

95. Dames & Moore de México, S. de R.L. de C.V., op. cit., note 93.

96. Ibid.

97. “The applicant puts forward and proposes: a gradual change in the use of solvents

with the adjustment of the formulas, decreasing the number of customers to whom

the service of selling activators is provided... They substituted the use of xylol for

toluol... likewise, triethanolamine was substituted for ammonia... In furnace 2 it was

ordered to cover the building with Pintro-brand galvanized and prepainted siding

in order to insulate the body of the furnace; in addition to having raised the height of

the adjacent wall to 8 m.” Administrative decision no. 252/97, dated 4 November

1997, issued by the Industrial Inspection Branch of Profepa.

98. Inspection report no. 09-009-0926/94-V-02, of 10 March 1997, p. 6.

99. Footwear imports increased by an average of 30 % in 2000–2001. Leather and Footwear Industry Competitiveness Program, Ministry of the Economy (Secretaría de

Economía).

100. From 2002 to 2004, the cost of materials such as soles and other components

increased by 13 %. La Jornada, Mexico, 10 January 2005.

101. The overall share of the footwear industry in the economy has declined significantly

in the last four years due to its sluggish growth. Leather and Footwear Industry

Competitiveness Program, Ministry of the Economy.

102. The records of the General Customs Administration (Administración General de

Aduanas) indicate that documented footwear imports exceeded 34,500,000 pairs. La

Jornada, Mexico, 10 January 2005.

103. Information provided by the ALCA operations manager during the tour of the facility on 1 December 2005.

104. Ibid.
The materials produced by ALCA were used in the manufacture of

toecaps, heel pads or stiffeners, and synthetic lining or padding, as

well as in the manufacture of women’s bags and briefcases.105 The Mexican Business Information System (Sistema de Información Empresarial

Mexicano—SIEM) shows that ALCA produced heel pads or stiffeners for

footwear and synthetic lining, using primarily textiles, pigments, and

solvents in their production.106 In 2004 ALCA had approximately 24

employees107 and was classified as a small business.108 Its facility covered an area of approximately 3,540 m2 and the process areas consisted

of: a) a chemical storage patio with eight 9,000-liter tanks for styrene

monomer storage, a 400-liter tank for xylene storage, and a 4,700-liter

tank for diesel storage; b) a reactor for preparation of latex where, in

addition to the reactor itself, there was a 2,480-liter tank for styrene

monomer storage and another tank of unknown capacity for xylol storage; c) a fabric impregnation area with vats and machinery for that purpose, as well as a vertical LPG furnace for latex drying and a horizontal

furnace operating with steam coils and a steam boiler; d) two fabric production areas; and e) a hazardous-waste storage area with capacity for

three 200-liter drums, consisting of a concrete platform with a concrete

retaining wall on three sides and a rim sloping into the center to allow for

movement of the containers and prevent possible dispersal of spilled

material.109

ALCA’s activities consisted of the following steps:110

• Fabric production. At this step, cotton-knitting machines were

used to produce fabric rolls. The rolls were passed through plush

knitting machines to raise the pile and give it a more padded texture. According to plant staff, at some point a no-knit process was

being used with cotton tufts as the raw material. However, this

process had been discontinued and was not observed during the

site visit in December 2005.

36 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

105. Shoe Infonet ALCA, S.A. de C.V., online at <http://personales.com/mexico/

mexico/alca/> (viewed 16 January were 2006).

106. Mexican Business Information System, online at <http://www.secofi-siem.gob.

mx/portalsiem/> (viewed 16 January 2006).

107. Mexican Business Information System, reported in 2004, online at <http://www.

secofi-siem.gob.mx/portalsiem/> (viewed 16 January 2006).

108. Pursuant to Article 3, paragraph III of the Development of Micro-, Small, and

Medium-sized Business Competitiveness Act (Ley para el Desarrollo de la

Competitividad de la Micro, Pequeña y Mediana Empresa), published in the DOF on

30 December 2002, industrial enterprises are classified according to the number of

employees as either micro-businesses (0–10), small businesses (11–50), mediumsized businesses (51–250), or large businesses (over 250).

109. Dames & Moore de México, S. de R.L. de C.V., op. cit., note 93.

110. Ibid.
• Polystyrene latex preparation. Polystyrene latex111 is obtained

from a combination of products, primarily styrene monomer and

xylol.

• Impregnation and drying. Cotton fabric is submerged in latex for

impregnation according to the required thickness and then put in a

drying furnace. In this phase, air emissions were produced by the

drying material and by combustion gases from the drying furnaces

and the steam boiler.

• Finishing and packing. The dried impregnated material was cut

and packed to customer specifications and requirements.

During the Secretariat’s visit to ALCA’s facility on 1 December

2005, it was observed that all the equipment, including the latex drying

furnaces that had generated VOC emissions, was not operating. In the

hazardous-waste storage area, there were three closed drums marked to

indicate that one was for dirty solvent, one was for dirty oil, and one was

for oil-impregnated solid waste.112 Also found were containers of different types and capacities, mainly 200-liter metal drums and 19-liter buckets, some of them empty and others containing small quantities of

substances, used for management of raw materials and prepared latex

batches. Some of the labels indicated management of other chemicals

used in latex preparation such as ethylene glycol, methylene glycol,

toluene, and ammonium chloride.113

7.2 The Borough of Iztapalapa

In 2000, the population of Iztapalapa was 1,773,343,114 making it

the country’s most populated incorporated area,115 above the most

populated areas of the states of Yucatán, Morelos, Durango, Querétaro,

HISTORY OF ALCA IN IZTAPALAPA 37

111. The uses of polystyrene include manufacturing of plastics for furniture, electronic

products, plastic crates, food containers, insulating materials, and toys. United

States Environmental Protection Agency, Office of Air Quality Planning and Standards, Locating and Estimating Air Emissions from Sources of Styrene, April 1993.

112. Dames & Moore de México, S. de R.L. de C.V., op. cit., note 93.

113. Ibid.

114. INEGI, XII Censo General de Población y Vivienda 2000, online at <http://www.inegi.

gob.mx/> (viewed 19 December 2005).

115. Census results are grouped by municipality and, in the case of the Federal District,

by borough. The populations of Mexico City, Monterey, Guadalajara, and Puebla

significantly exceed that of Iztapalapa when considered as metropolitan areas;

however, they are broken down into municipalities whose population is smaller

than that of the borough of Iztapalapa. Sedesol, Sistema de Consulta de Indicadores del

Sistema Urbano Nacional, 2005, online at <http://habitat2.sedesol.gob.mx/sedesol/

scisunweb/index.php> (viewed 7 December 2005).
Zacatecas, Tlaxcala, Aguascalientes, Nayarit, Quintana Roo, Campeche,

Colima and Baja California Sur.116 The average urban density of Iztapalapa117 was reported as 211 persons/ha,118 21% denser than the figure

for the ZMVM.119 The population of Iztapalapa grew by a factor of 23 in

the five decades from 1950 to 2000.120

Table 2. Population growth in Iztapalapa121

In the last thirty years, Iztapalapa has exhausted its land base while

accounting for 83.7% of growth in the Federal District.122 In the 1970s,

38 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

116. Yucatán, 1,658,210; Morelos, 1,555,296; Durango, 1,448,661; Querétaro de Arteaga,

1,404,306; Zacatecas, 1,353,610; Tlaxcala, 962,646; Aguascalientes, 944,285; Nayarit,

920,185; Quintana Roo, 874,963; Campeche, 690,689; Colima, 542,627; Baja California Sur, 424,041. INEGI, XII Censo General de Población y Vivienda 2000, online at

<http://sc.inegi.gob.mx/simbad/index.jsp?c=125> (viewed 19 December 2005).

117. The average urban density indicator is a weighted average of population and area

of the basic geostatistical areas (AGEB). This method of calculating density more

accurately reflects the degree of concentration of the urban population in a metropolitan area, since large areas of the metropolitan municipalities are not urbanized.

118. Sedesol, Sistema de Consulta de Indicadores del Sistema Urbano Nacional, 2005, online

at <http://habitat2.sedesol.gob.mx/sedesol/scisunweb/index.php> (viewed 7

December 2005).

119. The average urban density reported for the ZMVM was 173.12 in 2000. Sedesol,

Sistema de Consulta de Indicadores del Sistema Urbano Nacional, 2005, online at

<http://habitat2.sedesol.gob.mx/sedesol/scisunweb/index.php> (viewed 19

December 2005).

120. Borough of Iztapalapa, Cuaderno estadístico delegacional, 2000, p. 23, Table 2.1, cited

online at Borough of Iztapalapa, Demographics, <http://www.iztapalapa.df.gob.

mx/> (viewed 16 December 2005).

121. INEGI, Federal District. VII, VIII, IX, X, XI y XII Censos Generales de Población y

Vivienda, 1950, 1960, 1970, 1970, 1980, 1990 and 2000.

122. Borough of Iztapalapa, demographics, online at <http://www.iztapalapa.df.gob.

mx/> (viewed 16 December 2005).

Year Total Population

growth

1950 76,621

1960 254,355 177,734

1970 522,095 267,740

1980 1,262,354 740,259

1990 1,490,499 228,145

2000 1,771,673 282,174
54.3% of demographic growth in the Federal District was due to Iztapalapa. In the 1980s, Iztapalapa grew 1.6 times more than the rest of the

Federal District123 as families moved there from the central boroughs of

the Federal District and from other states.

A document dated 7 February 2006, issued by the Urban Development Planning and Evaluation Department (Dirección de Planeación y

Evaluación del Desarrollo Urbano—DPEDU) of the government of the

Federal District, acknowledges the complexity of urban planning in

Iztapalapa:

Due to its historical background, the borough of Iztapalapa comprises

industrial buildings scattered among its residences, leading to a situation

of mixed use and a heterogeneous image. Therefore, the environmental

problems of the borough have multiple causes, but one of the most relevant urban development priorities is to improve the environment by controlling pollution sources, restoring and expanding forested areas, and

applying technologies to reduce impacts on ecosystems.

The DPEDU document also describes three urban development

programs corresponding to 1982, 1987 and 1997:124

• Partial Development Program (1982). The ALCA lot was located

in zone 27, classified as heavy neighborhood industry, on which textile manufacturing, light industry, and assembly activities were

permitted.Heavy and extractive industrial activities on areas under 2 ha

were allowed with a land-use permit.

• Partial Urban Development Program (1987). The lot in question

was zoned as neighborhood industry, low-intensity zone up to 1.5 times

the area, in which heavy, medium, and light industrial activities were

allowed with a land-use permit.

• Borough Urban Development Program (1997).125 This program

reaffirmed the zoning in the Partial Urban Development Program

(1987),126 classifying it as Industrial (I). The table of land uses

HISTORY OF ALCA IN IZTAPALAPA 39

123. Ibid. However, the information published by the borough of Iztapalapa indicates

demographic growth of 341,088,which differs from the figure reported by INEGI.

124. The latter available online at <http://www.iztapalapa.df.gob.mx/>.

125. Ministry of Urban Development and Housing, Cartas de divulgación de desarrollo

urbano, online at <http://www.seduvi.df.gob.mx/programas/divulgacion/

delegacionales97/iztapalapa/iztapalapa.html> (viewed 16 December 2005).

126. The other industrial zones are Guadalupe del Moral, Industrial Iztapalapa,

Progreso del Sur, and Granjas Esmeralda.
allows micro-industry, domestic and high-technology industry, and

neighborhood and small industry.

In regard to ALCA’s activities, the document concludes: “... in

view of the specific characteristics of the industry type, in terms of land

use the facility is considered to be Permitted in the respective zones, and

therefore allowed to operate on the lot in question.”

8. Standards and Health Effects of Compounds Used by ALCA

The Submitter, himself or through others, reported that emissions

and vapors from compounds used by ALCA were causing him nuisance

and harming his health, while persons exhibited symptoms including

dizziness, eye irritation and burning, and headaches.127 The documents

enclosed with the submission state that the Submitter and his family:

[H]ave been exposed to solvents emanating from a factory located alongside his house for approximately 40 years. Mr. Lara refers to the following

symptoms: asthenia, adynamia, dizziness, vertigo, occipital headaches

and abdominal pain accompanied by nausea and vomiting, as well as fine

tremor in the upper extremities over approximately 20 years, increasing in

intensity for the past 6 years, which symptoms and signs increase when

the factory discharges the compounds used therein.128

And that:

These compounds are: hexane, heptane, styrene, toluene and xylene,

which are highly toxic polycyclic aromatic hydrocarbons (PAHs), and

which pose a risk to public health, especially to families living near the

source of exposure if there is not a sound management, disposal and storage thereof.129

40 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

127. Unnumbered documents dated 5 December 2001 and 24 February 2003, issued by

the Assistant Director of Gerontology Units, Inapam; unnumbered document dated

26 May 2003, issued by Assistant Director of Certification and Supervision, Inapam;

document dated 23 October 2002, issued by a local service provider. The documents, issued at the Submitter’s request, are not addressed to any authority, and the

Submitter attached them to his submission.

128. Submission, p. 2, and unnumbered rulings dated 15 and 26 January 2001, issued by

the head of the INER Environmental Health Research department, addressed to the

Minister of the Environment and the Office of the President, respectively. The

Submitter reported the same symptoms to Secodam in an 18 January 2001 report.

N.B. Asthenia is a sense of weakness and generalized loss of vitality, both physical

and mental, while adynamia refers to the loss of strength or vigor, usually related to

some illness.

129. Documents enclosed with submission SEM-02-005 (ALCA-Iztapalapa), dated 15 January (3 documents) and 26 January, 14 and 22 February, 8 and 16 October 2001, and

1 and 27 February 2002, issued by INER at the Submitter’s request, addressed to the
According to the information gathered by the Secretariat, the substances used by ALCA in its process were styrene, xylene, heptane, hexane, and toluene. Depending on the degree and length of exposure, the

symptoms caused by exposure to these substances are varied, including

irritation of the nose, throat, and eyes;130 central nervous system alteration;131 weakness of muscles,132 legs and arms;133 fatigue and lack of

coordination;134 abdominal pain;135 and vertigo.136 Other documented

effects were loss of sensitivity in feet and hands, followed by muscle

weakness in feet and hands, in footwear industry workers.137

STANDARDS AND HEALTH EFFECTS OF COMPOUNDS USED BY ALCA 41

Minister of the Interior, the Attorney General, the Minister of the Environment and

Natural Resources, the President, the Minister of Health, the Mayor of Mexico City,

the Mexico City Environmental Attorney, the INSEN General Director, the Minister

of Social Development, and the General Director of Civil Protection, respectively.

130. Symptom caused by exposure to styrene and xylenes. United States Department of

Health and Human Services, Agency for Toxic Substances and Disease Registry

(ATSDR), Toxicological Profile for Styrene, September 1992, p. 14, online at <http://

www.atsdr.cdc.gov/toxprofiles/tp53.pdf> (viewed 20 January 2006);Praxair Material Safety Data Sheet. Xylenes, Praxair, 2000, online at <http://www.praxair.com/

praxair.nsf/AllContent/E76F3FE7D6A00DC985256A860081E821/$File/p6244.pdf>

(viewed 13 January 2006).

131. Symptom caused by exposure to styrene and toluene. ATSDR, Toxicological Profile

for Styrene, p. 14; I. Andersen, G.R. Lundqvist, L. Molhave et al., “Human Response

to Controlled Levels of Toluene in Six-Hour Exposures,” Scand. J. Work Environ.

Health, 9:405–418 (1983), cited in ATSDR, Toxicological Profile for Toluene, September

2000, p. 58, online at <http://www.atsdr.cdc.gov/toxprofiles/tp56.pdf> (viewed

24 January 2006).

132. Symptom caused by exposure to styrene and n-hexane. ATSDR, Toxicological Profile

for Styrene, p. 14; Y. Yamamura, “n-Hexane polyneuropathy,” Folia Psychiatrica et

Neurologica Japonica 23(1):45–57 (1969), cited in ATSDR, Toxicological Profile for

n-Hexane, July 1999, pp. 4, 38–9, online at <http://www.atsdr.cdc.gov/toxprofiles/

tp113-p.pdf> (viewed 25 January 2006).

133. Symptom caused by exposure to n-hexane. ATSDR, Toxicological Profile for n-Hexane, online at <http://www.atsdr.cdc.gov/toxprofiles/tp113-p.pdf>, July 1999,

pp. 4, 38–9.

134. Symptom caused by exposure to n-heptane. K.L. Low, J.R. Meeks, and C.R.

Mackerer, “n-Heptane,” in R. Snyder (ed.), Ethel Browning’s Toxicity and Metabolism

of Industrial Solvents, vol. 1, Hydrocarbons (Elsevier: Amsterdam, New York, and

Oxford, 1987), cited in Ontario Ministry of the Environment, Ontario Air Standards

for n-Heptane, March 2001, p. 4, online at <http://www.ene.gov.on.ca/envision/

env_reg/er/documents/2001/airstandards/PA00E0009.PDF> (viewed 15 February 2006).

135. Symptom caused by exposure to n-hexane. ATSDR, Toxicological Profile for n-Hexane, online at <http://www.atsdr.cdc.gov/toxprofiles/tp113-p.pdf>, July 1999,

pp. 4, 38–9.

136. Symptom caused by exposure to n-hexane andn-heptane. ATSDR, Toxicological Profile for n-Hexane, online at <http://www.atsdr.cdc.gov/toxprofiles/tp113-p.pdf>,

July 1999; Ontario Ministry of the Environment, Ontario Air Standards for n-Heptane,

March 2001, p. 4.

137. ATSDR, Toxicological Profile for n-Hexane, p. 4.
Various official documents and proceedings attest to the presence

of and nuisance caused by the odors associated with ALCA’s operations.

For example, a certification of facts138 recorded in 2005 found that,

although the source could not be determined, there was “a strong perceptible and annoying odor” in the vicinity of ALCA. During inspection

visits in 1994,139 1995,140 and 2001,141 Profepa noted perceptible odors

from the polystyrene latex impregnation operations.

From the documentation provided by Mexico, the Submitter, and

ALCA as well as the information collected by the Secretariat, there is no

doubt that ALCA handled styrene, xylene, heptane, hexane, and toluene. In particular, a chemical report issued by PGR experts points to the

presence of such substances in samples taken from the company’s storage tanks.142 During the Secretariat’s tour of the ALCA site in December

2005, it was observed that the total styrene and xylene storage capacities

were 72,000 l and 400 l, respectively.143 As to the other substances (toluene, hexane, and heptane), the documents issued by the authorities evidence their use by ALCA.144 The waste materials used in the synthetic

rubber production process are considered hazardous waste, as are the

waste solvents derived from xylene and toluene.145

VOC emissions to the atmosphere from facilities with processes

like those of ALCA are not regulated by standards establishing limits on

air emissions. This being the case, the administrative authorities sanctioned ALCA for noncompliance with the conditions of the operating

42 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

138. Certification of facts notarized by Lic. José Luis Latapi Fox, Notary Public no. 120 of

the Federal District, by notarized document no. 38,241, of 10 January 2005.

139. “Odors are perceived because the impregnation of the latex rolls is done manually,”

inspection report 09-009-0926/94, of 7 December 1994, p. 4.

140. “The air is not extracted from an enclosed area but from an open area, and the inlet

does not coincide with the impregnation vats; therefore, odor emissions are perceived in the area in question,” verification of measures report 09-009-0926/97U02,

of 10 March 1997, p. 4.

141. “[D]uring the tour of the facility, odors characteristic of styrene were perceived”,

inspection report 15-009-0035/01-D, of 27 July 2001, p. 7.

142. Expert opinion on chemistry dated 25 July 1997, issued by experts from the PGR

Expert Services Branch (Dirección General de Servicios Periciales).

143. Eight 9,000-l tanks for styrene storage and one 400-l tank for xylene storage. That is,

99 % of the storage capacity corresponded to styrene while the remainder corresponded to xylene used as a solvent.

144. Document CA/349/02, of 14 October 2002, from Coordinator of Semarnat advisors;

and document 10950 of 25 July 1997 from experts from the PGR Expert Services

Branch.

145. Mexican Official Standard NOM-052-SEMARNAT-1993, Establishing the characteristics and list of hazardous wastes as well as the threshold above which a waste is

considered hazardous due to its toxicity in the environment.
license, which included the requirement to install VOC emission control

equipment.146

Several chemicals handled by ALCA are listed in standards that

serve to determine whether high-risk activities are conducted and,

theretofore, produce an environmental risk study;147 however, according to Profepa’s site visit reports, inventories reported to the Ministry

of Urban Development and Ecology (Secretaría de Desarrollo Urbano y

Ecología—Sedue) and the Ministry of Social Development (Secretaría de

Desarrollo Social—Sedesol), and company information,148 ALCA handled smaller quantities than those regulated by the standards. Other

substances used by ALCA are included in the Pollutant Release and

Transfer Register (PRTR)149 but these, too, were handled in quantities

below the reportable limits. Similarly, some of the substances used by

ALCA are listed in hazardous material transportation standards,150 are

subject to workplace exposure limits,151 or are subject to risk identification during handling152 and to special safety conditions.153

STANDARDS AND HEALTH EFFECTS OF COMPOUNDS USED BY ALCA 43

146. Administrative decision no. 252/97-V, of 5 September 1997, issued by the Industrial

Inspection Branch of Profepa.

147. High-risk activities are determined as per the volume of chemical substances

known as “reportable quantities” (cantidades de reporte), which are listed in the first

and second lists of high-risk activities, published in DOF on 28 March 1990 and 4

May 1992, respectively. LGEEPA article 146 provides that a risk study must be prepared when conducting high-risk activities. The risk study contains, among other

aspects, the definition of buffer zones.

148. Inspection reports 15-009-0035/01-D and 09-009-0029/05, dated 27 July 2001 and 3

August 2005, respectively, describe that ALCA does not handle chemical substances beyond reportable quantities. The inventories and releases reported to

Sedue and Sedesol in March 1993 and March 1994 state that the monthly volume

managed was 40,000 kilograms of styrene, 400 liters of toluene, 200 of hexane, and

50 of xylene. Also according to a document issued by ALCA on 7 October 1997, the

monthly quantities used by ALCA that year were 1000 liters of xylene, 200 liters of

toluene, 15 liters of hexane and 14 liters of heptane. N.B. Sedue and Sedesol had

jurisdiction over environmental matters that were later transferred to Semarnat.

149. Order determining the list of reportable substances under federal jurisdiction for

the pollutant release and transfer register. DOF, 31 March 2005. The reporting

threshold for styrene is 1,000 kg/year.

150. Mexican Official Standard NOM-002-SCT-2003, List of most commonly transported substances and materials.

151. Mexican Official Standard NOM-010-STPS-1999, Health and safety conditions in

workplaces where chemical substances that may cause contamination of the work

environment are handled, transported, processed, or stored; NOM-047-SSA1-1993,

Establishing the maximum permitted biological levels of organic solvents in occupationally exposed personnel.

152. Mexican Official Standard NOM-018-STPS-2000, System for identification and

communication of hazards and risks posed by hazardous chemical substances in

the workplace.

153. Mexican Official Standard NOM-028-STPS-2004, Workplace organization; safety in

processes involving chemical substances.
Styrene is listed as a most commonly transported hazardous material.154 As to workplace exposure: maximum permitted exposure limits,155 type and degree of risk,156 and handling rules have been established for this chemical.157 In Mexico, styrene is on the list of substances

subject to the PRTR,158 but no reportable quantities have been set for

determining the existence of high-risk activities.

Xylenes159 are listed as most commonly transported hazardous

materials;160 there are workplace161 and health-related162 maximum

permitted exposure limits for xylenes; the type and degree of risk they

represent have been established;163 and they are subject to rules for management as a chemical substance.164 In terms of environment, there are

maximum permitted levels of soil contamination by xylenes,165 but they

are not on the PRTR list. As regards risk, management of xylenes in

quantities above the reportable quantity is considered a high-risk activity.166

Toluene is listed as a most commonly transported hazardous material;167 there are workplace168 and health-related169 maximum permitted

exposure limits for it; the type and degree of risk it represents have been

44 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

154. NOM-002-SCT-2003.

155. Mexican Official Standard NOM-010-STPS-1999, Health and safety conditions in

workplaces where chemical substances that may cause contamination of the work

environment are handled, transported, processed, or stored.

156. NOM-018-STPS-2000.

157. NOM-028-STPS-2004.

158. Order determining the list of reportable substances under federal jurisdiction for

the pollutant release and transfer register. DOF, 31 March 2005. The reporting

threshold for styrene, for PRTR purposes, is 1,000 kg/year.

159. There are three forms, or isomers, of xylene: meta-xylene, ortho-xylene, and paraxylene. There are also mixtures of the three isomers, which additionally contain

6–15 % ethyl benzene. ATSDR, Toxicological Profile of Xylene (Draft), Atlanta, September 2005.

160. NOM-002-SCT-2003.

161. NOM-010-STPS-1999.

162. Mexican Official Standard NOM-047-SSA1-1993, Establishing the maximum permitted biological levels of organic solvents in occupationally exposed personnel.

163. NOM-018-STPS-2000.

164. NOM-028-STPS-2004.

165. Mexican Official Standard NOM-138-SEMARNAT/SS-2003, Limits on hydrocarbons in soils and specifications for their characterization and remediation.

166. The second list of high-risk activities, published May 1992, establishes 200,000

kg/year as the reportable quantity for xylene. See also notes 147 and 148.

167. NOM-002-SCT-2003.

168. NOM-010-STPS-1999.

169. NOM-047-SSA1-1993.
established;170 and it is subject to rules for management as a chemical

substance.171 In terms of environment, there are maximum permitted

levels of soil contamination,172 but toluene is not on the PRTR list. As

regards risk, the use of toluene in quantities above the reportable quantity is considered a high-risk activity.173

Hexane is listed as a most commonly transported hazardous material;174 there are maximum permitted workplace exposure limits for it;175

the type and degree of risk it represents have been established;176 and it

is subject to rules for management as a chemical substance.177 In terms of

environment, it is not on the PRTR list, nor have any limits on soil contamination been established. As regards risk, the volume above which

the management of hexane is considered a high-risk activity has been

established.178

Heptane is listed as a most commonly transported hazardous

material;179 there are maximum permitted workplace exposure limits

for it;180 the type and degree of risk it represents have been established;181 and it is subject to rules for management as a chemical substance.182 In terms of environment, it is not on the PRTR list, nor have any

limits on soil contamination been established. As regards risk, the

reportable volume for determining whether the management of heptane

is considered a high-risk activity has been established.183

The following table summarizes the standards applicable to the

substances used by ALCA.

STANDARDS AND HEALTH EFFECTS OF COMPOUNDS USED BY ALCA 45

170. NOM-018-STPS-2000.

171. NOM-028-STPS-2004.

172. NOM-138-SEMARNAT/SS-2003.

173. The first and second lists of high-risk activities establish the reportable quantities

for toluene in 10,000 kg/year (for toxic characteristics) and 100,000 kg/year (for

flammable characteristics). See also notes 147 and 148.

174. NOM-002-SCT-2003.

175. NOM-010-STPS-1999.

176. NOM-018-STPS-2000.

177. NOM-028-STPS-2004.

178. The second list of high-risk activities specifies the reportable quantity for hexane as

20,000 kg/year. See also notes 147 and 148.

179. NOM-002-SCT-2003.

180. NOM-010-STPS-1999.

181. NOM-018-STPS-2000.

182. NOM-028-STPS-2004.

183. The second list of high-risk activities specifies the reportable quantity for heptane as

20,000 kg/year. See also notes 147 and 148.
Table 3. Official Mexican Standards applicable to the substances used by ALCA

46 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION Workplace Health-related Type and Rules for Soil Transportation exposure exposure degree of risk management contamination Listed in Listed as NOM-002- NOM-010- NOM-047- NOM-018- NOM-028- NOM-138- PRTR high-risk SCT-2003 STPS-1999 SSA1-1993 STPS-2000 STPS-2004 SEMARNAT/ activity SS-2003 Styrene XX XX X Xylenes XXX XX X X Toluene XXX XX X X Hexane XX XX X Heptane XX XX X
9. Environmental Law Enforcement in the Case of ALCA

The Submitter asserts that Mexico is failing to effectively enforce

its environmental law in connection with the crimes penalized under

CPF Articles 414, first paragraph and 415, paragraph I, and the duty of

sound management of hazardous wastes under LGEEPA Article 150,

first paragraph.184

Concerning the management of chemical substances, Profepa

imposed sanctions that, in some cases, required ALCA to change the use

and volume of solvents and to modify the equipment in its facility.185

Concerning air emissions, although the authority did impose measures

to reduce and control them, in Mexico there are no maximum permitted

levels of VOC emissions to the environment that are applicable to

ALCA’s operations.186

Concerning criminal prosecution, the PGR opened an investigation and, on four occasions, pursued criminal prosecution of ALCA officials, but all of these attempts proved unsuccessful before the district

judges. Further to the investigations, the authority decided not to proceed with criminal prosecution, concluding that it had not been able to

gather the evidence necessary to prove criminal charges against the

company’s representatives.

The Secretariat received information from Mexico on environmental law enforcement by the SMADF. The information is presented to

indicate the acts of inspection and enforcement by the SMADF of which

the federal authorities had knowledge,187 during the period when

Profepa carried out acts of enforcement in connection with ALCA.

ENVIRONMENTAL LAW ENFORCEMENT IN THE CASE OF ALCA 47

184. Submission, pp. 3–4.

185. Administrative decision no. 252/97, of 4 November 1997, issued by the Industrial

Inspection Branch of Profepa.

186. On environmental matters, the following standards have been enacted: NOM075-SEMARNAT-1995, Maximum permitted levels of air emissions of volatile

organic compounds from the water-oil separation process in petroleum refineries;

NOM-021-SEMARNAT-1997, Establishing maximum permitted levels of air emissions of volatile organic compounds from in-plant new auto body coating operations for automobiles, multi-use units, passenger and utility units, freight units, and

light trucks, as well as the emissions calculation method; and NOM-123-

SEMARNAT-1998, Establishing the maximum permitted content of volatile

organic compounds in solvent-based air-dry paints for domestic use and procedures for determining the content thereof in paints and coatings.

187. The administrative file in the possession of Profepa contains copies of reports of 26

February 2000, 5 April 2000, and 26 February 1999 sent to the office of the Head of

Government of the Federal District.
9.1 Complaints Filed against ALCA

The Submitter turned to governmental authorities alleging that the

company’s emissions were harming his health. The following entities of

the government of Mexico became aware of the matter raised by the

Submitter:

• Semarnat;

• Ministry of Control and Administrative Development

(Secodam);188

• Profepa;

• PGR;

• National Human Rights Commission (Comisión Nacional de los

Derechos Humanos—CNDH);

• SMADF;

• Borough of Iztapalapa;

• National Senior Citizens’ Institute (Instituto Nacional para la

Atención de las Personas Adultas Mayores—Inapam);

• National Respiratory Disease Institute (Instituto Nacional de

Enfermedades Respiratorias—INER);

• Environmental Preservation and Ecological Protection Commission of the ALDF.

The Secretariat documented the complaints related to the matter

raised in the submission. The first complaint was filed in 1994, and the

complaints continued until 2003. In some cases the petitioner was Ángel

Lara García, while in other cases the complaint was filed by someone

else, at the Submitter’s request. The Secretariat has obtained copies of the

documents containing the complaints filed by the Submitter or by others, while in some cases the information comes from documents issued

by the authorities in reference to a complaint. Profepa’s acts of inspection and enforcement were initiated as a result of complaints filed since

30 May 1994 by the Submitter.

The following table presents a list of complaints, letters, and other

documents related to the matter raised in the submission. As applicable,

the table states when the information on the complaint comes from a

document issued by an authority.

48 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

188. Now, the Ministry of Public Service.
Table 4. Complaints filed with respect to the issue raised in the

submission

ENVIRONMENTAL LAW ENFORCEMENT IN THE CASE OF ALCA 49

1994

30-may-2004. Complaint filed with Profepa concerning excessive emissions

of odors of burnt plastic and solvent. The complaint gave rise to an inspection

visit by Profepa on 13 September. Information contained in document 006/97

issued by the Industrial Inspection Branch (Dirección General de Inspección

Industrial), indicating that the complaint was received repeatedly. Thus,

Profepa conducted a new inspection visit on 7 December 1994.

1995

10-nov-2005. Complaint filed with Profepa by Ángel Lara García. Further to

the complaint, Profepa conducted an inspection visit on 7 December.

1996

23-aug-1996. Complaint filed with the DDF by Ángel Lara García, leading to

an inspection by the Federal District General Bureau of Civil Protection

(Dirección General de Protección Civil). Information on the complaint is taken

from document DGPC/1029/96 dated 9 September 1996, issued by said

Bureau.

7-nov-1996. Complaint filed with the Public Inquiries Branch (Dirección

General de Atención Ciudadana) of the Federal District by Ángel Lara García.

The complaint was referred to the Profepa Industrial Inspection Branch,

which admitted the complaint on 29 January 1997.

1997

13-jan-1997. Complaint filed with Profepa by Ángel Lara García. The

complaint gave rise to a Profepa inspection visit on 10 March 1997 to verify

the corrective measures imposed by such authority in 1994. The authority

determined that the company was in partial compliance but had not installed

emissions control equipment. Information on the complaint contained in

document PFPA.DGII.252/97 dated 2 October 1997, issued by the Profepa

Industrial Inspection Branch.

14-mar-1997. Complaint filed in person with the Office of the Attorney for

Environmental and Highway-related Offenses (Fiscalía Especializada de

Delitos Ecológicos y de Carreteras) of the PGR by Ángel Lara García. The

complaint gave rise to a criminal investigation of the company’s officials.

Information on the complaint contained in document DGCPPA-AUX-2794/

00 dated 21 August 2000, issued by the Deputy Federal Prosecutor.

18-jul-1997. Complaint filed by Ángel Lara García with the National Human

Rights Commission (Comisión Nacional de Derechos Humanos), stating his illness
50 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

caused by odors released by ALCA. Information contained in document

V2/00024032 dated 1 August 1997, forwarding the complaint to Profepa.

1998

9-nov-1998. Request for inspection filed by Ángel Lara García with the Public

Affairs Center of the ALDF in Iztapalapa. Thereafter, on 19 November, the

Center coordinator filed a complaint with Profepa, leading to a request dated

25 November 1998 to the Profepa office in the ZMVM to initiate an inspection

procedure.

1999

7-sep-1999. Complaint addressed to the Office of the President by Ángel Lara

García. Document stamped as received by CNDH, Semarnat and PGR.

2001

15-jan-2001. Letter from INER to the Minister of Semarnat at the request of

Ángel Lara García.

18-jan-2001. Administrative proceeding initiated at the request of Ángel

Lara García with Secodam against the Special Prosecutor for Environmental

Offenses (Fiscal Especial para la Atención de Delitos Ambientales).

26-jan-2001. Letter from INER to the President of the Republic at the request

of Ángel Lara.

7-mar-2001. Complaint addressed to the Office of the President and the

Ministry of the Interior, in which Ángel Lara García reports his filings before

Profepa, Semarnap, PGR and SMADF.

28-may-2001. Administrative proceeding initiated at the request of Ángel

Lara García with Secodam against various authorities.

21-jun-2001. Complaint filed with CNDH, in which Ángel Lara García reports

his filings before Profepa, Semarnap, PGR and SMADF.

2002

3-oct-2002. Complaint filed by e-mail with Profepa by Ángel Lara. The

complaint, concerning noise, was referred to the Sustainable Development

Promotion Division (Dirección de Promoción del Desarrollo Sustentable) of

Iztapalapa Borough (Delegación Iztapalapa) on October 17. Information on the

complaint from document PFPA/09/DZMVM/2702/02 dated 17 October

2002, issued by the Profepa delegate in the ZMVM.

23-oct-2002. Administrative proceeding initiated at the request of Ángel Lara

with the Ministry of Control and Administrative Development against the

Director, Environmental Complaints, Profepa.
9.2 Acts of Environmental Law Enforcement in relation to Air

Emissions and Hazardous Waste Management

Council Resolution 05-05 instructs the Secretariat to include in the

factual record information on the points raised in the submission, taking

into account that it “alleges a lengthy history of releases of toxic chemicals, as well as continuation of such releases following enforcement

action taken by the Government of Mexico in 2001.”189

In response to the Secretariat’s request for information, Mexico

sent a copy of an administrative proceeding brought by Profepa against

ALCA for alleged instances of noncompliance related to air emissions

and hazardous waste. The information presented in this section summarizes the administrative proceeding provided by Mexico.

9.2.1 Air Emissions

Between 1994 and 1997 Profepa conducted inspection visits to

ALCA’s facilities, where it identified violations to environmental law

related to air emissions of VOCs coming from the chemical substances

used by ALCA. As a result, Profepa imposed fines on the company totaling 24,160 pesos and ordered closing of the facility.

a. Closing of 7 December 1994

On 7 December 1994, Profepa conducted an inspection visit to

ALCA’s facility, during which it found that “odors were perceptible due

to the fact that impregnation of latex rolls is being done manually with

no mechanism for odor absorption, conduction, and control.” It also

found that the preparation of activators from hexane, toluol, and xylol

ENVIRONMENTAL LAW ENFORCEMENT IN THE CASE OF ALCA 51

189. Council Resolution 05-05, of 9 June 2005.

2003

11-mar-2003. Letter from the legal affairs department of Inapam referring the

complaint of Ángel Lara García to the Minister of Health.

23-oct-2003. Letter from the legal affairs department of Inapam notifying

the Public Inquiries Office (Dirección General de Atención Ciudadana) of the

Ministry of the Public Service (Secretaría de la Función Pública) of the

inconformity of Ángel Lara García with the outcome of his complaint. The

complaint gave rise to a request on 17 November 2003 from the Ministry of

the Public Service to the Profepa office in the ZMVM to review the ALCA file.
“was being done outdoors on the patio... hence there is a lack of equipment for absorption, conduction, and control of volatile organic compounds.” The Profepa inspectors who conducted the inspection visit

applied temporary partial closing of ALCA’s facility as a safety measure,

placing seals on the machinery and equipment used for the process.190

b. Fine of 10 April 1995

On 10 April 1995, Profepa issued an administrative decision

imposing a fine in the amount of 3,000 pesos and conditioning the lifting

of the closing order conditional to corrective actions additional to those

imposed in December 1994. The decision established that “should the

detected irregularities subsist upon expiry of the term granted to correct

them, pursuant to Article 171 of the aforementioned Act, fines may be

imposed for each day of noncompliance with the decision.”191

Profepa conducted a verification visit on 7 December 1995 and

found that ALCA had not installed equipment for management of solvents in a closed area; therefore, the closing order was not lifted.192 On 5

August 1996, Profepa conducted another visit to verify the corrective

measures and found that the company had installed rubber valves and

ducts on the solvent storage tanks and drums.193

On 14 August 1996, the closing order imposed in December was

lifted, after Profepa found that the company had resolved the issues that

had given rise to the closing order. The corrective actions on which

rescission was not conditional, and for which compliance had been

pending since 1995, were the installation of odor and emission control

equipment — such as activated carbon filters or cartridges — in the latex

impregnation, product preparation, and solvent mixing operations.

Noncompliance with these corrective actions eventually led to the

closing of ALCA on 5 September 1997.

52 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

190. Inspection report 09-009-0926/94, of 7 December 1994.

191. Administrative decision on file A-00111, of 10 April 1995, issued by the Profepa

enforcement unit. Since the order was served on 2 August 1995, the period of 20

days expired 30 August 1995. The information related to fines imposed by Profepa

for hazardous materials and waste management is presented in section 9.2.2 of this

document.

192. Verification reports 09-009-877/94VB1 and 09-009-0926/9401, dated 7 December

1995. The verification report indicates that ALCA had not installed the control

equipment in the fabric impregnation area and the mixing area. These were not conditions for rescinding the closing order, but activators were still being prepared outdoors, violating one of the conditions for rescinding the closing order (condition no.

6).

193. Verification report no. 09-09-0926/94-UR-01, of 5 August 1996.
c. Closing Order of 5 September 1997

Further to a complaint filed by Ángel Lara García,194 on 10 March

1997, Profepa conducted an inspection visit to verify the corrective

actions imposed since 10 April 1995. The inspection visit, along with others conducted in 1995195 and 1996,196 served as the basis for an administrative decision of 5 September 1997 consolidating the proceedings,

imposing a fine, and closing ALCA’s facility again.197

The decision of September 1997 concluded that, regarding air pollution, the company had complied with a large part of the conditions but

could not demonstrate installation of emission control equipment (activated carbon filters or cartridges) in i) the latex impregnation area, and

ii) the product and solvent preparation area.198

Concerning the installation of control equipment in the latex

impregnation area, ALCA submitted a VOC study allegedly demonstrating that it was not emitting VOCs into the atmosphere.199 Furthermore, it presented technical reasons for not installing pollution control

equipment.200 Profepa refuted the VOC study on the grounds that the

procedure used to obtain the results was not recognized by Mexican

environmental law, and because VOC vapors from the drum-filling

operation had been observed during an inspection visit.201 Profepa

found that, in light of the inspection visits,202 ALCA had not taken any

ENVIRONMENTAL LAW ENFORCEMENT IN THE CASE OF ALCA 53

194. Citizen complaint filed with Profepa by Ángel Lara, on 13 January 1997.

195. Verification reports 09-009-877/94VB1and 09-009-0926/9401,of 7 December 1995.

196. Verification report 09-09-0926/94-UR-01, of 5 August 1996.

197. Administrative decision no. 252/97-V, of 5 September 1997.

198. Ibid. ALCA was to install hoods, ducts, or chimneys to channel the emissions as well

as equipment to reduce them. Operating license no. 7384, of 9 September 1993, paragraph 5, stipulates that “the emission pollution control equipment [sic] installed by

the company must operate at the efficiency necessary to comply with the Environmental Technical Standards applicable to its combustion and process operations.”

199. Inspection reports 09-009-877/94VB1 and 09-009-0926/9401, of 7 December 1995.

During the visit, ALCA presented a study performed using EPA method 18, “Measurement of gaseous organic compound emissions by gas chromatography,” as

well as method NMX-AA-09-1993-SCFI, Sampling and analysis procedure for

determination of gas flow in a pipe using a Pitot tube.

200. “If a filter were installed at the outlet of this [the furnace duct], it would create an

obstruction that would completely disrupt the behavior of the air, creating internal

pressures that would counterproductively alter the furnace’s efficiency.” Inspection report 09-009-0926/94-V-02, of 10 March 1997, p. 4.

201. Administrative decision 252/97-V, of 5 September 1997, by the Industrial Inspection Branch of Profepa.

202. “No control equipment was installed for reduction or minimization of emissions

generated in the latex impregnation area.” Verification report 09-09-0926/94-UR-
action to reduce VOCs and was operating in violation of a condition of

its operating license of 1993 that required it to present a program of

works and actions to control VOC emissions.203 In view of the toxic characteristics of the emissions and the time elapsed since expiry of the

period allowed in its operating license, Profepa imposed a fine of 5,290

pesos.204

Concerning the installation of control equipment in the mixing

area, the company presented another study of xylene and styrene

emissions in the working environment,205 in which the concentrations

detected were allegedly below the limits established by the standards;

therefore, the company argued, the installation of emission control

equipment was not justified.206 In addition, ALCA proposed to install a

system of storage tanks for sound management of solvents, for which

purpose it requested a period of 180 days. As to the emission results,

Profepa found that although the levels were below those established by

one standard,207 that standard was not applicable to the imposition of

environmental conditions. In regard to the proposal to install storage

tanks, Profepa found that it was not appropriate in view of the time

elapsed since the obligation had arisen (in September 1993) and because

it was observed that no steps were being taken in this regard at the time

of the inspection visit. In regard to VOC emissions, Profepa imposed two

fines of 7,935 pesos each208 for failure to channel the omissions and to

install control equipment. In imposing this sanction, the authority considered the expiry of the time periods granted in the operating license

of September 1993 for taking corrective action as well as the toxic characteristics of the emissions.

54 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

01, of 5 August 1996, pp. 3–4; “The company states that it is impossible to install

activated carbon filters or cartridges in the furnace...” Inspection report 09-009-

0926/94-V-02, of 10 March 1997, p. 4.

203. Operating license no. 7384, of 9 February 1993. Paragraph 9 stipulates that “[ALCA

has] 45 working days in which to file with this Ministry a program of works and

activities to control its volatile organic compound emissions.”

204. Fine equivalent to 200 days’ minimum wage in the Federal District. Administrative

decision 252/97-V, of 5 September 1997, by the Industrial Inspection Branch of

Profepa.

205. NOM-047-STPS-1993, Industrial hygiene – Workplace environment – Determination of xylene in air – Gas chromatography method, and NOM-049-STPS-1993,

Industrial hygiene – Workplace environment – Determination of styrene in air – Gas

chromatography method.

206. Inspection report 09-009-0926/94-V-02 of 10 March 1997.

207. NOM-010-STPS-1999, Health and safety conditions in workplaces where chemical

substances that may cause contamination of the work environment are handled,

transported, processed, or stored.

208. Fines equivalent each one to 300 days’ minimum wage in the Federal District.

Administrative decision 252/97-V, of 5 September 1997, by the Industrial Inspection Branch of Profepa.
In addition, due to repeated noncompliance with the control measures, Profepa ordered the temporary partial closing of ALCA’s industrial facility as a safety measure. For the purposes of the fines, Profepa

determined that, pursuant to the applicable law, the company was considered a repeat violator.209

Lifting of the closing order was made conditional on the following:

• channeling the emissions from the mixing area and from the

mixing of activators,

• installing emission reduction equipment, and

• submitting a program of works and activities to decrease and

control VOC emissions.210

On 4 November 1997, Profepa deviated from the conditions

imposed and allowed ALCA to implement alternative measures including change and reduction in the use of solvents, permanent suspension

of production of activators, and construction of emission control structures.211 Profepa also accepted VOC measurement to determine the

advisability of installing emission control equipment.212

On 11 December 1997, lifting of the closing was ordered. Profepa

found that ALCA had carried out the measures ordered and that the

VOC measurement results showed levels below the maximum permitted levels, thus deviating from its initial position in which it had rejected

such analyses.213 On 21 May 2001, a decision was issued acknowledging

ENVIRONMENTAL LAW ENFORCEMENT IN THE CASE OF ALCA 55

209. “Since, as evidenced by the foregoing, the company has repeatedly failed to take the

aforementioned corrective measures and never demonstrated its implementation

of a duly authorized program for control of volatile organic compound emissions,

whose gravity has been indicated on the basis of the provisions of Article 171, paragraph II(a) of the General Ecological Balance and Environmental Protection Act”.

Administrative decision 252/97-V, of 5 September 1997, p. 14.

210. Profepa granted periods of 40, 20, and 10 days, respectively, from notification of the

administrative decision in which to comply with the measures ordered.

211. The works consisted of raising the wall adjacent to Ángel Lara’s lot from 3.5 to 8

meters; covering the building housing the furnaces with Pintro-brand siding;

installing a hood in the preparation area; and changing the direction of the furnace

outlet duct so that it pointed away from Mr. Lara’s house. Administrative decision

no. 252/97, of 4 November 1997, by the Industrial Inspection Branch.

212. Administrative decision no. 252/97, of 4 November 1997, issued by Profepa Industrial Inspection Branch. Corrective measures verification report, of 5 December

1997, documenting the temporary removal of the seals in order to measure volatile

organic compounds.

213. Administrative decision no. 154/01-DS, of 21 May 2001, issued by the Profepa official in the ZMVM.
compliance with the corrective measures that had been ordered on

5 September 1997 and closing the administrative proceeding that had

given rise to the closing of ALCA.214 The Secretariat did not obtain a

copy of the 1997 decision lifting the closing order; however, it is cited in

the decision of May 2001. The Secretariat is unaware of any other proceeding or event from December 1997 to May 2001 explaining the

lengthy period of time required to close the administrative proceeding.

On 8 October 2002, Profepa closed the citizen complaint proceeding initiated further to the complaints filed by the Submitter and the

coordinator of the Public Affairs Center from 1998 to 2000.215 On 23

October 2002, the Submitter filed with the Semarnat Internal Control

Agency a complaint of alleged irregularities in Profepa’s decision to terminate the administrative proceeding against ALCA. The Submitter

challenged this decision, alleging that he had not been given timely

notice of the decision. The complaint was ratified on 23 October 2002

before the Semarnat Internal Control Agency, with attachment of

documents to support the assertions, which served as the basis for

two proceedings before the Internal Control Agency.216 However, the

Secretariat has obtained no details of the investigation since the two proceedings were classified as reserved information pursuant to LFTAIPG

Article 13, paragraph V and Article 26 of the regulation thereunder.217

Consequently, the extent to which the Agency found irregularities in

Profepa’s processing of the administrative proceedings against ALCA is

unknown.

9.2.2 Hazardous Waste Generation and Management

The submission asserts that Mexico is failing to effectively enforce

LGEEPA Article 150, first paragraph in connection with hazardous

waste management by ALCA. The information provided by Mexico

indicates that ALCA was a hazardous waste generator subject to the provisions of LGEEPA Article 150, first paragraph, which establishes a

general framework of obligations relating to hazardous materials and

wastes, in accordance with the applicable environmental law. A description of these obligations is given in section 6.2 of this document.

56 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

214. Ibid.

215. The file provided to the Secretariat by Mexico does not contain copies of similar

decisions on the four other citizen complaints filed with Profepa from 1994 to 1997.

216. Proceedings contained in files PQU 101/02 and PQU 285/02.

217. LFTAIPG Article 13, paragraph V and Regulation to LFTAIPG Article 26. See note

20.
From 2000 to 2005, Profepa conducted six inspection visits to

ALCA’s facility218 and imposed fines for a total amount of 22,047.30

pesos for omissions to hazardous materials and waste management

law.219 The main irregularities detected by Profepa were related to

hazardous materials and waste storage; the entry and exit logs to/from

the hazardous waste warehouse; the monthly hazardous waste generation log; the preparation of semiannual waste generation reports; the

signage relating to hazardous waste areas and containers; characterization of wastewater treatment sludges; and delivery, transportation, and

receipt manifests.

Table 5. Imposition of hazardous waste-related fines and corrective

measures

ENVIRONMENTAL LAW ENFORCEMENT IN THE CASE OF ALCA 57

Inspection Measures and fines

Inspections of 13 September and

7 December 1994

Profepa found the following deficiencies:

• Inadequate storage of hazardous materials.

• Inadequate storage of hazardous waste.

• Failure to characterize hazardousness of

sludge from wastewater treatment plant.

• Lack of hazardous waste generator manifest.

Administrativedecision of 10 April 1995

Fine of 7,998.30 pesos.

Inspections of 17 February and 22 June

2000

The following deficiencies were found:

• Inadequate storage of hazardous waste.

• Lack of delivery, transportation, and

receipt manifests; storage facility entry

and exit logs; generation logs; and semiannual hazardous waste movement

reports.

Administrative decision of 5 July 2001

Modify the temporary hazardous waste

storage facility, adding signage to indicate hazardousness.

File a copy with Profepa of the semiannual report of hazardous wastes sent

for recycling, treatment, incineration, or

containment on the corresponding form.

Fine of 4,842 pesos.

218. Inspection visits conducted 17 February and 22 June 2000, 27 July 2001, 18 December

2003, and 3 August 2005. Annex of the document PFPA-SII-DGIFC-0142/2006, of 10

February 2006, issued by the Profepa Industrial Inspection Branch.

219. Fines imposed by administrative decision on 10 April 1995, 5 July 2001, 7 September

2001, and 26 March 2004. Ibid.
9.3 Acts of Enforcement by the Government of the Federal District

From August 1994 to May 2004, the SMADF conducted 10 inspection visits of ALCA’s facility.220 On these visits, the authority verified

compliance with the local environmental law governing noise, solid

waste, and wastewater discharge. It also noted noncompliance with provisions related to hazardous waste management and air emissions.

58 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

Inspection of 27 July 2001

The following deficiencies were found:

• Inadequate storage of hazardous waste.

• Failure to characterize hazardousness of

sludge from wastewater treatment plant.

• Lack of delivery, transportation, and

receipt manifests; storage facility entry

and exit logs; generation logs; and semiannual hazardous waste movement reports.

Administrative decision of 7 September

2001

Ratification of corrective measures

imposed on 5 July 2001 and imposition

of fine of 2,421 pesos.

Inspection of 18 December 2003

The following deficiencies were found:

• Failure to complete administrative procedure consisting of hazardousness characterization of sludge from wastewater

treatment plant.

• Lack of hazardous waste generation,

entry, and exit logs.

Administrative decision of 26 March

2004

The following corrective measures were

imposed:

a) complete hazardousness characterization of sludge from wastewater treatment

plant, and

b) create monthly generation log and log

of entries and exits from temporary hazardous waste storage facility.

Fine of 6,786 pesos.

Inspection of 3 August 2005

The following was found: that completion of the Semarnat procedure consisting

of hazardousness characterization of

sludge from wastewater treatment plant

ordered in March 2004 was still pending.

The authority did not issue an administrative decision since it was awaiting

compliance information from ALCA;

however, ALCA closed its facility in late

December 2005.

220. Inspection visits conducted 15 August 1994, 8 July 1997, 18 February 1998, 14 July

1998, 8 February 2000, 16 May 2000 (two inspections conducted the same day), 19

July 2000 (two inspections conducted the same day), and 7 May 2004. Report

E/CO2/DGPCC/DHS/0403/2000, of 5 April 2000, issued by SMA to the secretary

to the head of government of the Federal District.
In April 1999, the SMADF fined and closed ALCA for hazardous

waste-related and air emissions-related noncompliance.221 The closing

order was lifted pursuant to a judgment of 13 July 1999 by TCADF.222

SMADF issued other administrative decisions on 5 October 2000, 21

May 2001 and 1 July 2004, in which it did not apply sanctions because it

did not note any environmental violations.

The government of the Federal District223 carried on pollution

enforcement acts. The jurisdictional provisions set forth in LGEEPA

Articles 9 and 111 bis, discussed in section 6.3.1, establish that federal

authorities have jurisdiction over ALCA’s emissions.

9.4 Environmental Criminal Law Enforcement

The Submitter asserts that Mexico failed to effectively enforce CPF

Article 415, paragraphs I and II (in force as of 1997), which define the

offenses of harm to the environment or public health arising from the

unsound management of hazardous materials and wastes and from air

pollutant emissions. In March 1997, the Submitter filed a complaint with

the Office of the Special Prosecutor for Environmental and Highwayrelated Offenses that gave rise to an investigation. The investigation

concluded in August 2000 when the MPF decided not to proceed with

criminal prosecution, due to the existence of an insuperable material

obstacle to the gathering of sufficient evidence.

On 24 March 1997, the MPF began the criminal investigation process for facts possibly constituting an offense. The MPF found that the

facts complained of by the Submitter were described in CPF Article 415,

paragraphs I and II. The two paragraphs describe separate instances of

ENVIRONMENTAL LAW ENFORCEMENT IN THE CASE OF ALCA 59

221. Administrative decision of 28 April 1999, imposing a sanction of 20 days’ minimum

wage in the Federal District for instances of noncompliance related to air emissions

and ordering temporary partial suspension of water supply and steam generation

equipment due to wastewater- and air emissions-related instances of noncompliance. Report /CO2/DGPCC/DHS/0403/2000, of 5 April 2000, issued by SMA to

the secretary to the head of government of the Federal District.

222. Judgment by Administrative Tribunal on trial II-3395/99, on 13 July 1999. Report

E/CO2/DGPCC/DHS/0403/2000, of 5 April 2000, issued by SMA to the secretary

to the head of government of the Federal District.

223. In terms of air emissions, the government of the Federal District verified compliance

with 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 permitted levels of air emissions of smoke, total suspended particles, sulfur

dioxide, and nitrogen oxides and the requirements and conditions for the operation

of indirect combustion heating equipment, as well as the maximum permitted

levels of sulfur dioxide emissions from direct combustion heating equipment.
criminal conduct224 requiring different methods of proof and, consequently, different types of investigation. For paragraph I, it is necessary

to substantiate the existence of substances or wastes considered hazardous, while paragraph II refers to air emissions of gas, smoke, or dust.

The MPF pursued criminal prosecution on four occasions, presenting the investigation to the district judge and requesting the corresponding arrest warrants. In all these cases, the district judge denied the arrest

warrant. In the first case (28 November 1997), the MPF pursued criminal

prosecution for conduct contemplated in Article 415, paragraph II, while

in the three subsequent cases (December 1998, April 1999, November

1999), the prosecution was based on Article 415, paragraph I.

The table below presents a synopsis of the evidence obtained by

the MPF during the investigation to substantiate the offenses contemplated in CPF Article 415, paragraphs I or II:

Table 6. Evidence gathered during investigation

60 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

224. CPF Article 415 (in force 1997–1999): “Anyone who commits any of the following

acts is liable to a penalty of three months’ to six years’ imprisonment and one thousand to twenty thousand days’ fine:

I. Engages, without the authorization of the competent federal authority or in violation of the terms imposed by such authorization, in any activity with hazardous

materials and wastes that causes or may cause harm to public health, natural

resources, fauna, flora, or ecosystems.

II. Emits, discharges, or releases into the atmosphere, or authorizes or orders the

emission, discharge, or release into the atmosphere of gas, smoke, or dust causing

harm to public health, natural resources, fauna, flora, or ecosystems in violation of

the applicable legal provisions or Mexican official standards, where such emissions

originate from fixed sources under federal jurisdiction, pursuant to the General

Ecological Balance and Environmental Protection Act.”

225. Complaint filed by appearance of 14 March 1997 by Ángel Lara García. In: Document DGCPPA-AUX-2794/00, of 21 August 2000, issued by the MPF assistant to

the Attorney General.

Item of evidence Description

Complaint filed by

Ángel Lara García225

Evidence whose purpose is to demonstrate the elements of the offense and the probable liability of the

physical persons named in the complaint as being

probably liable.
CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 61

226. Inspection of 25 April 1997. Op. cit., note 225.

227. Report by the Planning and Operation Branch (Dirección General de Planeación y

Operación) of the Federal Judicial Police (Policía Judicial Federal), of 27 April 1997.

Op. cit., note 225.

228. Report by the Expert Services Coordination Branch (Dirección General de Coordinación de Servicios Periciales) of PGR. Op. cit., note 225.

229. Characterization report by the Expert Services Coordination Branch of PGR, 28 July

1997, and chemical expert’s report of 21 August 1997. Op. cit., note 225.

230. Medical expert’s report of 16 June 1998. Op. cit., note 225.

MPF inspection of the

scene226

Demonstrates the existence of a company, its adjacency to other lots, its proximity to the complainant’s home, the existence of flora on the site, but not

any allegation of harm or danger. This means of

proof is suitable for substantiating the existence of

the material object contemplated in the description

of the offense.

Report of Judicial

Police investigation227

Evidence intended to establish the type of activity

in which the company was engaged, who worked

there, and the general characteristics of the activity.

Forensic

photography228

Substantiates the existence of the material objects

and the activity (of the company), and, indirectly,

the use of hazardous substances or wastes.

Characterization

report

Evidence designed to prove scientifically the

existence of substances having hazardousness

characteristics. The report substantiated these

characteristics. It should be noted that this is not

proof of the charge, since the use of this type of substance or waste is not illegal unless its use is irregular and causes risk or harm to the environment or

public health.

Chemical report by

biology and chemistry

experts229

Proof of discharge that determined that, in the flora

samples taken, there was no evidence of “residues

or any toxic substance that might harm flora,

fauna, or public health”.

Report by medical

expert230

Evidence for the prosecution; however, it is not

conclusive if there was no extensive sampling that

could give an indication of “public health” harm,

which would involve a large number of people.
During the investigation, the MPF requested the testimony of the

ALCA operations manager,233 ordered a visual inspection of the ALCA

facility,234 and required investigative reports from the Judicial Police.235

Also during the investigation, photographs were taken of the ALCA

facility236 and two chemical expert reports were issued, one concluding

that ALCA was managing hazardous substances and wastes237 and the

62 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

231. Copies of administrative proceeding A-00111 against ALCA, issued 29 July 1998.

Op. cit., note 225.

232. Decision summary, Third Court, Supreme Court of Justice: AVERIGUACIONES

PENALES, VALOR DE LOS PERITAJES RENDIDOS EN LAS, 17 part four, p. 14, direct

amparo 4484/68, 2354/62 and 5897/66. Decision summary, Eighth Civil Court of the

First Circuit: PRUEBA PERICIAL RENDIDA EN JUICIOS PENALES, APORTADA AL

PROCEDIMIENTO CIVIL CARECE DE VALOR COMO TAL, part XIV, July, p. 738, direct

amparo 71/94.

233. Testimony of 24 April 1997 and 22 May 1997. Document DGCPPA-AUX-2794/00,of

August 21 2000, issued by the MPF assistant to the Attorney General.

234. Inspection of 25 April 1997. Op. cit., note 225.

235. Investigative report solicited 8 May 1997; report by officer of the Planning and

Operations Branch of the Federal Judicial Police. Op. cit., note 225.

236. Photographs taken by personnel of the Expert Services Branch of the PGR and submitted in a sealed envelope on 1 July 1997. Op. cit., note 225.

237. Document no. 10950, of 25 July 1997, by personnel of the Expert Services Branch of

the PGR. Op. cit., note 225.

Certified copies of

administrative

proceeding before

Profepa231

Substantiates the existence of an administrative

proceeding before Profepa, although not of the

content of the proceeding in terms of the jurisprudence applicable at that time.232

Private document

consisting of a letter

signed by congressman José Espina von

Roherich to the

Attorney General of

the Republic.

For procedural purposes, its evidentiary value is

purely circumstantial.

Photographs of the

scene presented by

congressman José

Espina von Roherich.

Evidence intended to substantiate the existence of

the material objects, the existence of the company’s

activity and, indirectly, the use of hazardous substances or wastes.

Medical report by the

PGR medical expert

Report intended to substantiate the alleged health

harm that may be caused by the management of

hazardous waste.
other concluding that samples taken from a tree did not contain toxic

residues or substances that could harm flora, fauna, or public health.238

At that time, the constitutional provisions that adopt the criterion

of elements of the offense for substantiation of the probable existence of an

offense were in force.239 Having determined that the constitutional

threshold was met, the MPF pursued criminal prosecution for the first

time on 28 November 1997 for probable commission of environmental

offenses under CPF Article 415, paragraph II and applied to the judge for

an arrest warrant.

On 9 January 1998, District Judge 11 in Federal District criminal

court denied the arrest warrant, holding that the evidence “did not demonstrate any probability that the factory in question was discharging

gas, smoke, or dust, nor even circumstantially substantiated that such

emissions were causing harm to public health, fauna, flora, or ecosystems, there being no evidence whatsoever to indicate this, since the

study necessary to demonstrate this was not performed during the

investigation.”240

The MPF continued with its investigation and commissioned a

medical expert report.241 It also solicited the testimony of the ALCA

operations manager as well as representatives and officials of the company.242 The MPF also had access to information about the administrative proceeding brought by Profepa against ALCA.243

The MPF found that the evidence gathered substantiated the existence of the offense and therefore, on 7 December 1998, applied again for

an arrest warrant. On this occasion it did so for the offense contemplated

in CPF Article 415, paragraph I (instead of paragraph II, as on the previous occasion). On 16 December 1998, District Judge 6 in criminal court

denied the arrest warrant for lack of evidence.244

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 63

238. Document no. 13929, of 21 August 1997, issued by personnel of the Expert Services

Branch of the PGR. Op. cit., note 225.

239. See section 6.3.2 of this factual record.

240. Op. cit., note 225.

241. The report is cited in document DGCPPA-AUX-2794/00, of 21 August 2000, which

contains the technical opinion concerning the consultation on nolle prosequi, but neither its object nor its results are transcribed.

242. Testimony of 18 September and 13 and 20 October 1998. Op. cit., note 225.

243. Document no. PFPA/DGJ/1039/98, of 29 July 1998, issued by the Director, Legal

Affairs, Profepa.

244. Ibid.
In March 1999, Article 16 of the Constitution was revised and the

criterion of corpus delicti, discussed in section 6.3.2 of this document, was

adopted, thus lowering the constitutional threshold for substantiation of

an offense. On 21 April 1999, for the third time, the MPF pursued criminal prosecution against ALCA officials as being probably liable for the

offense contemplated in CPF Article 415, paragraph I. However, on 30

April 1999, District Judge 11 in Federal District criminal court denied the

arrest warrant on the grounds that all the evidence comprised by the

investigation had already been analyzed and evaluated, and no additional evidence had been provided.245

The MPF gathered further evidence and obtained a medical expert

report concluding that ALCA managed hazardous waste that could

pose a risk to health and the ecosystem.246 On 8 November 1999, a final

attempt was made to proceed with criminal prosecution against the

ALCA officials for the offense contemplated in CPF Article 415, paragraph I. District Judge 2 in Federal District criminal court denied the

arrest warrant on 14 December 1999, holding that the evidence gathered

was insufficient to substantiate the corpus delicti. The decision was

appealed by a motion before the Second Unitary Court of the First Circuit, which upheld the District Judge’s decision on 28 January 2000.247

On 22 August 2000, the MPF decided not to pursue further criminal prosecution because it did not find “fully substantiated the corpus

delicti contemplated and penalized by CPF Article 415, paragraph I and

the probable liability of the suspects.” The MPF found that it was essential to perform clinical examinations of Ángel Lara García, his wife, and

his son in order to prove the offense. In Mexican law, the MPF cannot

proceed with criminal prosecution if it is unable to do so due to an insuperable material obstacle, even if the facts or conduct may constitute an

offense.248

In January 2001, the Submitter filed an administrative complaint

with Secodam against PGR officials, in which he questioned the investi64 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

245. Ibid.

246. Document no. MF-3121, of 5 November 1999, issued by the medical expert of the

PGR. In document DGCPPA-AUX-2794/00, op. cit., note 225.

247. Op. cit., note 225.

248. CFPP Article 137: “The Office of the Public Prosecutor shall not pursue criminal

prosecution: ...

III. Where, even if the conduct or facts in question may constitute one or more

offenses, it is impossible to prove their existence due to insuperable material obstacle....”
gation conducted by the law enforcement authorities.249 Mr. Lara García

stated that the evidence-gathering during the investigation had been

deficient. Likewise, in his submission, he stated to the Secretariat that

“the investigation by the authorities showed a clear lack of skill.” The

Secretariat was not able to obtain the documents relating to the investigation by Secodam, because the file was classified as reserved.250

In reviewing the documentation whereby it was decided not to

proceed with criminal prosecution, the Secretariat’s legal consultant

found that the MPF had the opportunity to use other evidence gathering

methods contemplated in criminal law but did not do so. These included

search of premises,251 testimony of neighbors and company employees,252 and expert testimony on public health253 and ecology.254 The

authorities could also have produced a report explaining the causal link

between the conduct and the result (dictamen de nexo causal).255

The Secretariat consulted the government of Mexico on other

means of proof available to the MPF and why they were not considered

at the investigation stage.256 When no response was forthcoming, the

CONTENT AND SCOPE OF THE ENVIRONMENTAL LAW 65

249. Administrative proceeding of 18 January 2001, before the Ministry of Control and

Administrative Development.

250. Op. cit., note 225.

251. As provided by CFPP Article 61. Search of premises may yield access to logs, delivery/transportation/receipt manifests for hazardous substances or wastes, reports

of pollutant quantities and emissions, documentation of hazardous waste treatment, and information about authorizations, licenses, or permits, as well as make it

possible to determine the physical existence of hazardous materials in the facility.

252. Testimony concerning odors, smoke, community health impacts, and injuries (in

the case of company employees) arising from the company’s activities and its management of hazardous materials.

253. Medical examination of individuals living near the company’s facility might have

led to the conclusion that the health of this population in particular could have been

jeopardized by the use of such materials. As well, a medical report on the health

risks arising from the use of hazardous substances and wastes could have reached

the same conclusion.

254. Veterinary and/or biological report of harm and/or risk to fauna, flora, natural features and/or ecosystems arising from the use of substances and wastes considered

hazardous. Just as sampling for human health factors and harm and risk analysis are

performed, such a report could have been used to substantiate harm and/or risk to

fauna, flora, natural features, and/or ecosystems.

255. The purpose of a causal link report is to substantiate the link between the conduct

ascribed to the suspects and the results (harm and/or danger), as well as the relevance of the conduct to the production of the result and the manner in which each

individual, in particular, was involved.

256. Request for additional information, of 7 September 2006, to Director, Legislation

and Consultation Branch of Semarnat.
Secretariat asked Mexico to provide an explanation in the event that it

could not legally respond to the request; however, no explanation was

obtained.257

10. Final Note

Factual records provide information regarding asserted failures to

effectively enforce the environmental law in North America that may

assist submitters, the NAAEC Parties, and other interested members of

the public in taking any action they deem appropriate in regard to the

matters addressed. Pursuant to Council Resolution 05-05, which determined its scope, this factual record provides information on alleged

failures by Mexico to effectively enforce LGEEPA Article 150, first paragraph and CPF Articles 414, first paragraph and 415, paragraph I in the

case of ALCA, as well as the administrative proceedings taken by

Mexico in relation to the history of toxic substances emissions by the

company.

With respect to enforcement of LGEEPA article 150, first paragraph between 2000 and 2005, Profepa conducted six inspections to

ALCA’s facility and imposed fines for a total amount of 21,687.30 pesos

for omissions to hazardous materials and waste law.

In relation to the effective enforcement of CPF Articles 414, first

paragraph and 415, paragraph I, the federal entity responsible for prosecution of offenses pursued criminal prosecution on four occasions

(November 1997, December 1998, and April and November 1999),

applying to the district judge for the corresponding arrest warrants. On

all four occasions — and with less constitutional requirements to evidence the possible commission of an offense since 1999 — the public

prosecutor did not gather enough proof before the district judge to substantiate the offenses allegedly committed by ALCA’s representatives.

On 22 August 2000, the MPF decided not to pursue further criminal

prosecution, due to lack of evidence, arguing that it was essential to conduct clinical examinations to Ángel Lara García, his wife, and his son in

order to prove the offense. In analyzing the documentation based on

which the MPF decided not to proceed with criminal prosecution, the

Secretariat found that the MPF had other means of proof contemplated

in the criminal law at its disposal but did not use them.

Profepa had the power to investigate environmental violations

and, where applicable, report acts, omissions, or facts involving the

66 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

257. E-mail of 23 November 2006 to Legal Affairs Office of Semarnat.
commission of offenses to the MPF. However, Profepa had no specialized administrative criminal law enforcement structure for pursuing,

opening files on, gathering evidence on, or carrying out any other

activity to substantiate the existence of environmental offenses. In this

regard, Profepa could not cooperate more extensively with the investigation carried out by the PGR officers, due to a lack of adequate structure and specialization. Currently, the Internal Regulation of Semarnat

provides for the existence of a specialized environmental criminal law

structure.

As regards the MPF’s capacity to investigate crimes, the UNDP

2004 human development report on Mexico states that “officials set

aside cases requiring greater investigative effort in order to identify a

suspect and at times leave evidence gathering to the prosecution... the

Office of the Public Prosecutor tends not to proceed with criminal prosecution in more complex cases, arguing, for example, lack of evidence.”258

With respect to the history of toxic substances emissions by the

company, from 1994 to 1997, Profepa imposed a total of 24,160 pesos in

fines and issued two orders closing ALCA’s facility. The information

indicates that although various corrective measures concerning odors

and VOC emissions from the use of chemical substances were ordered,

the company did not comply with all these measures. Lifting of the closing order was subject to actions that, the company argued, were technically impossible because they would disrupt the production process. In

December 1997, Profepa modified the conditions previously imposed

and, instead of requiring the installation of filters to control VOC emissions, accepted ALCA’s proposal to reduce and change the use of certain

solvents as well as to use the criterion proposed by the company for analysis of its emissions. Nevertheless, the nuisance caused to the Submitter

by the odors continued until the plant closed permanently in December

2005, due to economic reasons.

FINAL NOTE 67

258. Informe sobre Desarrollo Humano en Mexico 2004. See note 85.

APPENDIX 1

Council Resolution 05-05, Instruction to the

Secretariat of the Commission for

Environmental Cooperation regarding the

assertion that Mexico is failing to effectively

enforce Article 150 of the General Law of

Ecological Balance and Environmental

Protection (Ley General del Equilibrio Ecológico

y Protección al Ambiente) and Articles 414 and

415 of the Federal Penal Code (Código Penal

Federal) (SEM-03-004)

9 June 2005

COUNCIL RESOLUTION 05-05

Instruction to the Secretariat of the Commission for Environmental

Cooperation regarding the assertion that Mexico is failing to effectively enforce Article 150 of the General Law of Ecological Balance

and Environmental Protection (Ley General del Equilibrio Ecológico y

Protección al Ambiente—LGEEPA) and Articles 414 and 415 of the

Federal Penal Code (Código Penal Federal—CPF) (SEM-03-004).

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 submissions filed on 25 November 2002 and 17 June

2003 by Mr. Ángel Lara García, and the response provided by the Government of Mexico on 4 December 2003;

HAVING REVIEWED the 23 August 2004 notification submitted to the

Council by the Secretariat, recommending the development of a factual

record with respect to the submission;

REAFFIRMING that the focus of the factual record process is to examine

facts pertinent to assertions that a Party is failing to effectively enforce its

environmental law, and not the effectiveness of the law in question;

RECOGNIZING that a Party, in its response to the Secretariat in respect

of a submission, is not in a position to respond to assertions or matters

that were not raised in the submission;

NOTING that Article 161 of LGEEPA was not raised by the submitter,

but by the Secretariat;

FURTHER NOTING that, among other things, the submission alleges a

lengthy history of releases of toxic chemicals, as well as continuation of

such releases following enforcement action taken by the Government of

Mexico in 2001;

APPENDIX 1 71
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 with respect to the issues raised in the

submission, taking the above-noted considerations into account;

TO DIRECT the Secretariat to provide the Parties with its overall work

plan for gathering the relevant facts and the opportunity to comment on

that plan; and

TO FURTHER DIRECT that the Secretariat may include, in its preparation of a factual record, any relevant facts that existed prior to the entry

into force of the NAAEC on 1 January 1994.

APPROVED BY THE COUNCIL.

72 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
APPENDIX 2

Overall Plan to Develop a Factual Record with

Regard to Submission SEM-03-004

Secretariat of the Commission

for Environmental Cooperation

Overall Plan to Develop a Factual Record

Submission I.D.: SEM-03-004 (ALCA-Iztapalapa II)

Submitter: Ángel Lara García

Party: United Mexican States

Date of this plan: 21 July 2005

Background

On 17 June 2003, the Submitter identified above presented to the

Secretariat of the Commission for Environmental Cooperation (CEC) a

submission, in accordance with Article 14 of the North American Agreement on Environmental Cooperation (NAAEC). The submission, along

with supporting materials, asserts that Mexico is failing to effectively

enforce its environmental laws with respect to the operation of a footwear products facility owned by a company called ALCA, S.A. de C.V.

(ALCA), located on a piece of land adjacent to the personal residence of

the Submitter in the Santa Isabel industrial suburb of Mexico City, D.F.

The Submitter alleges that the air releases by the facility and the handling of toxic substances and wastes by ALCA’s employees do not comply with Article 150 of Mexico’s General Law of Ecological Balance

and Environmental Protection (Ley General del Equlibrio Ecológico y de

Protección al Ambiente—LGEEPA) and Articles 414, first paragraph, and

415, Section I, of the Federal Criminal Code (Código Penal Federal—CPF).

In particular, the Submitter asserts that the company is illegally

carrying on the storage, disposal and unloading of environmentally

harmful hazardous substances without applying prevention and safety

measures. The Submitter also claims that ALCA does not apply prevention or safety measures to prevent the atmospheric release or discharge

of environmentally harmful gas, smoke, dust or pollutants. The Submitter asserts that the company is failing to manage hazardous materials

and wastes in accordance with LGEEPA and the Mexican Official Standards (Normas Oficiales Mexicanas—NOMs) issued by the Secretariat of

the Environment and Natural Resources (Secretaría de Medio Ambiente y

Recursos Naturales—Semarnat). The Submitter asserts that these alleged

violations are causing pollution harming his and his family’s health. He

APPENDIX 2 75
further asserts that the Office of the Federal Attorney General for Environmental Protection (Procuraduría Federal de Protección al

Ambiente—Profepa), despite having found violations during a factory

inspection, terminated a citizen complaint filed by the Submitter

without taking the actions necessary to stop the alleged violations.

On 9 September 2003, the Secretariat determined that the submission met the requirements of Article 14(1) of NAAEC and requested a

response from the Party concerned (Mexico), in accordance with Article

14(2).

Mexico submitted its response on 4 December 2003. Referring to

the citizen complaint filed on 10 November 1995 by the Submitter, alleging violations by ALCA to Article 150 of LGEEPA, Mexico asserted the

process was concluded by Profepa in accordance with the law. It additionally claimed that the relevant file was lost in a flood that occurred in

the file room of Profepa, and asserted that the process was concluded

without initiation of a criminal investigation. Mexico asserted that

another complaint filed by the Submitter, on 14 September 2000, was

concluded with the imposition of a fine against ALCA of 2,421 pesos.

Regarding ALCA’s alleged criminal violation under Article 415, first

paragraph, of the CPF, Mexico asserted that it did not undertake a criminal action because, according to a technical opinion issued by officers of

the District Attorney’s Office, neither the commission of a crime nor the

probable liability of the suspects was clearly established “as we deduce

from the acts that although the asserted facts may constitute a crime,

it is impossible to determine whether the crime exists due to irreparable material hindrance, because the proof provided is insufficient to

evidence the crime.”

On 23 August 2004, the Secretariat informed the CEC Council that,

in light of Mexico’s response, it considered that the Submission warranted the preparation of a factual record.

On 9 June 2005, in Council Resolution 05-05, the Council decided

unanimously to instruct the Secretariat to prepare a factual record in

accordance with Article 15 of NAAEC and the Guidelines for Submissions

on Enforcement Matters (The Guidelines) under Articles 14 and 15 of

NAAEC.

The Council directed 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. The Council stated

that the Secretariat may include, in its preparation of the factual record,

76 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
any relevant facts that existed prior to the entry into force of the NAAEC

on 1 January 1994.

Under Article 15(4) of 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 (JPAC); or (d) developed by the Secretariat or by independent

experts.”

Overall Scope of the Fact Finding

To prepare the factual record, the Secretariat will gather and

develop information relevant to the following items with regard to the

Government of Mexico’s alleged failure to effectively enforce Article 150

of LGEEPA and Articles 414, first paragraph, and 415, Section I, of the

CPF regarding the facility’s air releases and hazardous substances and

wastes handling by ALCA’s workers, as asserted in the submission:

(i) the alleged failure by ALCA to comply with Article 150 of LGEEPA

and Articles 414, first paragraph, and 415, Section I, of the CPF;

(ii) the inspections, administrative procedures or any other environmental actions that could have been initiated against ALCA before

or after 2001 regarding (1) its trail of toxic chemical releases and its

continuing to generate releases, and (2) its handling of hazardous

substances and wastes; and

(iii) if Mexico is failing to effectively apply Article 150 of LGEEPA and

Articles 414, first paragraph, and 415, Section I, of the CPF, in the

case of the company ALCA.

Overall Plan

Consistent with Council Resolution 05-05, execution of the overall

plan will begin no sooner than 8 August 2005. All other dates are best

estimates. The overall plan is as follows:

• Through public notices or direct requests for information, the Secretariat will invite the Submitters, JPAC, community members, the general public, and local, provincial and federal government officials to

APPENDIX 2 77
submit information relevant to the scope of fact-finding outlined

above. The Secretariat will explain the scope of the fact finding, providing sufficient information to enable interested nongovernmental

organizations or persons or JPAC to provide relevant information to

the Secretariat (Section 15.2 of The Guidelines). [August—October

2005]

• The Secretariat will request information relevant to the factual record

from federal, provincial and local government authorities of Mexico,

as appropriate, and shall consider any information furnished by a

Party (Articles 15(4) and 21(1)(a) of NAAEC). [August—October

2005]

• The Secretariat will gather relevant technical, scientific or other information that is publicly available, including from existing databases,

public files, information centers, libraries, research centers and academic institutions. [August—January 2006]

• The Secretariat, as appropriate, will develop, through independent

experts, technical, scientific or other information relevant to the factual record. [October—January 2006]

• The Secretariat, as appropriate, will collect relevant technical, scientific or other information for the preparation of the factual record,

from interested nongovernmental organizations or persons, JPAC, or

independent experts. [August 2005—January 2006]

• In accordance with Article 15(4), the Secretariat will prepare the draft

factual record, based on the information gathered and developed.

[January 2006 through April 2006]

• The Secretariat will submit a draft factual record to Council, and any

Party may provide comments on the accuracy of the draft within 45

days thereafter, in accordance with Article 15(5).[end of April 2006]

• 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. [June 2006]

• The Council may, by a two-thirds vote, make the final factual record

publicly available, normally within 60 days following its submission,

according to Article 15(7).

78 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Additional information

The submission, the Party’s response, the Secretariat’s determinations, the Council Resolution, and a summary of these are available

online in the Registry on Citizen Submissions at the CEC home page

<www.cec.org>, or upon request to the Secretariat at the following

address:

Secretariat of the CEC

Submissions on Enforcement

Matters Unit (SEM Unit)

393 St-Jacques St. West

Suite 200

Montreal, QC H2Y 1N9

Canada

CEC / Mexico Liaison Office:

Atención: Unidad sobre

Peticiones Ciudadanas (UPC)

Progreso núm. 3

Viveros de Coyoacán

México, D.F. 04110

México

APPENDIX 2 79

APPENDIX 3

Request for Information describing

the scope of the information to be included

in the factual record and giving examples

of relevant information

Secretariat of the Commission

for Environmental Cooperation

REQUEST FOR INFORMATION

for Preparation of a Factual Record

Submission SEM-03-004 (ALCA-Iztapalapa II)

16 November 2005

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 detailed

information to allow interested persons to assess whether a Party has

effectively 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 information. The Secretariat

also may consider any relevant technical, scientific or other information

that is publicly available; provided by JPAC, the Submitters or other

interested persons or nongovernmental organizations; or developed by

the Secretariat or independent experts.

On 9 June 2005, in Council Resolution 05-05, the Council decided

unanimously to instruct the Secretariat to develop a factual record in

accordance with Articles 14 and 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 (the Guidelines). The

Secretariat is now requesting information relevant to matters to be

APPENDIX 3 83
addressed in the factual record. The following sections provide background on the submission and describe the kind of information

requested.

II. The ALCA-Iztapalapa II submission and Council instructions

The submission, along with its support materials, asserts that Mexico is failing to effectively enforce its environmental law with respect to

the operation of a footwear materials factory owned by the company

ALCA, S.A. de C.V. (“ALCA”), located on property neighboring the

Submitter’s home in the Santa Isabel Industrial neighborhood of the

borough of Iztapalapa in Mexico City. The Submitter asserts that the

factory’s air pollution and ALCA employees’ handling of hazardous

substances and wastes violate Article 150 of the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio

Ecológico y la Protección al Ambiente—LGEEPA) and Articles 414, first

paragraph and 415, Section I of the Federal Penal Code (Código Penal Federal—CPF).

In particular, the Submitter asserts that the company is illegally

carrying on the storage, disposal and discharge of environmentally

harmful hazardous substances without applying prevention and safety

measures. The Submitter also claims that ALCA does not apply prevention or safety measures to prevent the atmospheric release or discharge

of environmentally harmful gas, smoke, dust or pollutants. The Submitter asserts that the company is failing to manage hazardous materials

and wastes in accordance with LGEEPA and the Mexican Official Standards (Normas Oficiales Mexicanas—NOMs) issued by the Secretariat of

the Environment and Natural Resources (Secretaría de Medio Ambiente y

Recursos Naturales—Semarnat). The Submitter asserts that these alleged

violations are causing pollution that harm his and his family’s health. He

further asserts that the Office of the Federal Attorney for Environmental

Protection (Procuraduría Federal de Protección al Ambiente—Profepa),

despite having found violations during a factory inspection, terminated a citizen complaint filed by the Submitter without taking action

necessary to stop the alleged violations.

On 9 September 2003, the Secretariat determined that the submission met the requirements of Article 14(1) of NAAEC and requested a

response from the Party in question (Mexico), pursuant to Article 14(2).

Mexico submitted its response on 4 December 2003. With respect

to the citizen complaint filed in 1995, in which the Submitter alleged

84 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
ALCA’s violations of Article 150 of the LGEEPA, Mexico asserts in its

response that the corresponding process was concluded by Profepa

pursuant to law. Mexico further reported that the file was lost due to a

flood in the Profepa file room, but noted that the citizen complaint did

not give rise to a criminal investigation. With respect to another citizen

complaint filed by the Submitter in 2000, Mexico asserts that it concluded the process with the issuance of an administrative ruling, fining

ALCA $2,421.00 pesos. As regards ALCA’s alleged violations of Article

415 paragraph 1 of the CPF, Mexico states that agents of the Public Prosecutor (Ministerio Público) issued a technical opinion stating that the

investigations “did not clearly establish a crime as set forth and penalized under Article 415, Section I of the CPF nor the probable liability of

the suspects, as we deduce from the acts that although the asserted facts

may constitute a crime, it is impossible to determine whether the crime

exists due to irreparable material hindrance, because the proof provided

is insufficient to evidence the crime.”

On 23 August 2004, the Secretariat notified the CEC Council that in

light of Mexico’s response, the submission warranted developing a factual record.

On 9 June 2005, in Council Resolution 05-05, the Council decided

unanimously to instruct to Secretariat to develop a factual record with

respect to the matters raised in the submission, in accordance with

NAAEC Article 15 and the Guidelines.

The Council ordered the Secretariat to provide the Parties with its

overall work plan for gathering the relevant facts and the opportunity to

comment on that plan. The Council further instructed that in developing

the factual record the Secretariat should take into account considerations noted in Council Resolution 05-05. The Council stated that the

Secretariat may include, in its preparation of a factual record, any relevant facts that existed prior to the entry into force of the NAAEC 1 January 1994.

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.”

APPENDIX 3 85
III. Request for information

The Secretariat of the CEC requests information relevant to the

facts concerning:

(i) ALCA’s alleged violations of Article 150 of the LGEEPA and

Articles 414 first paragraph and 415 Section I of the CPF;

(ii) any inspection visits, administrative proceedings or other

governmental actions conducted with ALCA before and

after 2001 with respect to its history of (1) releases of toxic

chemicals and the continuation of such releases, and (2) the

handling of hazardous wastes and substances; and

(iii) whether Mexico is failing to effectively enforce Articles 150 of

the LGEEPA and 414 first paragraph and 415 Section I of CPF

in the case of ALCA.

IV. Examples of relevant information

1. Information on any municipal, state or federal environmental

enforcement policies or practices that are applicable to ALCA’s

alleged violation of Article 150 of the LGEEPA and of Articles 414,

first paragraph and 415, Section I of the CPF.

2. Information on the applicable land use of the property where the

Submitter’s home is located (at Cerrada de Vaqueros No. 11,

Colonia María Isabel Industrial, Delegación Iztapalapa in Mexico

City) and the property where the ALCA plant is located, as well as

information on whether the plant is located in an area not suitable

for industrial activities. The submission states that ALCA was constructed on the property near the Submitter’s home around 1960.

3. Information on the urban development plan applicable to ALCA

and any other similar plans or zoning rules applicable to the property, in effect from 1932 to date.

4. Information on whether ALCA’s air pollution releases and its

handling of hazardous wastes and substances fall under the provisions of Article 150 of the LGEEPA and Articles 414, first paragraph and 415, Section I of the CPF, as applicable. In particular,

information as to whether ALCA carries on the following:

86 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
(i) generation, storage, disposal and discharge of environmentally harmful hazardous substances and/or wastes without

applying prevention and safety measures;

(ii) atmospheric release or discharge of environmentally harmful gas, smoke, dust or pollutants without applying prevention and safety measures; and/or

(iii) management of hazardous materials and wastes without

complying with the LGEEPA and the NOMs issued by

Semarnat.

5. Information on the acts undertaken by municipal, state or federal

health, environmental, labor, social development or any other

authority and any administrative files kept thereby, in respect of

the reported health effects on the Submitter, his family and other

residents in the area, allegedly caused by ALCA’s alleged atmospheric release of pollutants and its alleged mismanagement of

hazardous substances.

6. Information on how the potential effects and risks of ALCA’s operations on the environment and on the neighboring residents’

health have been evaluated.

7. Information that ALCA has reported to municipal, state or federal

authorities with respect to its releases and handling of hazardous wastes and substances, including any information submitted

in statements, studies, samplings, log-books, monitoring data,

reports, notices, requests and renewals of permits and licenses

from the time its operations began up to the present.

8. Information on the criteria applied by the relevant authority (in

general terms and specifically with regard to ALCA) in considering repeat offenses in the enforcement of Articles 150 of the

LGEEPA and 414, first paragraph and 415, Section I of the CPF.

9. Any other technical, scientific or other information that could be

relevant in the development of this factual record.

V. Additional background information

The submission, Mexico’s response, the determinations by the

Secretariat, the Council Resolution, the overall plan to develop a factual

APPENDIX 3 87
record and other information are available in the Registry and Public

Files section of Citizen Submissions on Enforcement Matters on the

CEC website <http://www.cec.org>, or may 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 15 February 2006, to 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.: (5255) 5659-5021

For any questions, please send an e-mail to the attention of Rosa

Blandon, at <rblandon@cec.org>.

88 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
APPENDIX 4

Information Requests to Mexican Authorities

Letter to the Party requesting information for

development of the factual record for SEM-03-004

16 November 2005

Re: Development of the factual record for submission

SEM-03-004 (ALCA-Iztapalapa II)

The Secretariat hereby requests from Mexico relevant information

to develop the factual record for the ALCA-Iztapalapa II submission,

SEM-03-004, in accordance with NAAEC Articles 15(4) and 21(1)(a).

As you are aware, on 9 June 2005, the Council of the Commission

for Environmental Cooperation of North America unanimously

resolved 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 stated in the submission referred to above.

Under Article 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 also request additional information. As well, the

Secretariat shall consider information publicly available and provided

by the Joint Public Advisory Committee (JPAC), submitters or other

interested nongovernmental organizations or persons, as well as information developed by the Secretariat or independent experts.

Attached you will find the list of matters on which information is

requested of Mexico for developing this factual record. Please respond

to this request no later than 15 February 2006. If any clarification are

needed, questions may be sent to the following electronic mail address,

to the attention of Rosa Blandón: <rblandon@cec.org>.

Thank you in advance for your attention to this matter.

Sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

Attachment

APPENDIX 4 91
cc: [Environment Canada]

[US EPA]

CEC Executive Director

92 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Secretariat of the Commission

for Environmental Cooperation

Request to Mexico for information for the development of a

factual record on Submission SEM-03-004 (ALCA-Iztapalapa II)

16 November 2005

In Submission SEM-03-004 (ALCA-Iztapalapa II) Mexico is allegedly failing to effectively enforce its environmental law with respect to

the operation of a footwear materials factory owned by the company

ALCA, S.A. de C.V. (“ALCA”), located on property neighboring

the Submitter’s home in the Santa Isabel Industrial neighborhood of

Iztapalapa District in Mexico City. The Submitter states that the factory’s

air emissions and ALCA employees’ handling of hazardous substances

and wastes violate Article 150 of the General Law on Ecological Balance

and Environmental Protection (Ley General del Equilibrio Ecológico y la

Protección del Ambiente—LGEEPA) and Articles 414, first paragraph and

415, paragraph I of the Federal Penal Code (Código Penal Federal—CPF).

In particular, the Submitter asserts that the ALCA is illegally storing, disposing of and discharging substances considered to be hazardous and harmful to the environment, without applying preventive and

safety measures. The Submitter also claims that ALCA does not apply

preventive or safety measures to avoid the atmospheric release or discharge of environmentally harmful gas, smoke, dust or pollutants. The

Submitter asserts that the company is failing to manage hazardous

materials and wastes in accordance with LGEEPA and Mexico’s Official

Standards (Normas Oficiales Mexicanas—NOMs) issued by the Ministry

of the Environment and Natural Resources (Secretaría de Medio Ambiente

y Recursos Naturales—Semarnat). The Submitter asserts that these

alleged violations are causing pollution that is harming his and his

family’s health. He further asserts that even though the Federal Attorney for Environmental Protection (Procuraduría Federal de Protección al

Ambiente—Profepa) found violations during a factory inspection, it terminated a citizen complaint filed by the Submitter without taking the

necessary actions to stop the alleged violations.

For the development of the factual record regarding this submission, the Secretariat is requesting the Party to provide additional information on the effective enforcement of the environmental law indicated

above in the cases referred to in the submission and with respect to the

history of monitoring procedures that Mexico’s environmental authorities have initiated in order to ensure ALCA’s compliance with the correAPPENDIX 4 93
sponding environmental law. Also, the information requested may

include pertinent actions taken prior to 1 January 2004, when the North

American Agreement on Environmental Cooperation went into effect.

In particular, please:

1. Provide information regarding any municipal, state or federal

environmental enforcement policies or practices that are applicable to ALCA’s alleged violation of Article 150 of the LGEEPA and

of Articles 414, first paragraph and 415, paragraph I of the CPF.

Indicate how these policies or practices have been applied in the

case of ALCA.

2. It is evident from the submission and the attached documents that

since 1932 the Submitter has resided at Cerrada de Vaqueros No.

11, in the Santa Isabel Industrial neighborhood of Iztapalapa District in Mexico City, and that ALCA established in the neighboring

property in approximately 1960. Provide details on the land use

applicable to both properties from 1932 to the present, and clarify

whether the ALCA factory is located in an area not suitable for

industrial activities.

3. Provide a copy of the urban development plan applicable to the

area in which ALCA and the Submitter’s home are located, including land use plans, environmental management units, compatibility matrixes, etc., and also a copy of any other similar plans or

ordinances applicable to these properties and in effect from 1932 to

date.

4. Provide additional information on whether ALCA’s atmospheric

emissions and its handling of hazardous wastes and substances

fall under the provisions of Article 150 of the LGEEP or Articles

414, first paragraph and 415, paragraph I of the CPF. In particular,

provide information as to whether ALCA has, since the beginning

of its operations to the present:

(i) conducts activities of generating, storing, disposing of or discharging environmentally harmful hazardous substances,

materials and/or wastes, without applying preventive or

safety measures;

(ii) releases or discharges environmentally harmful gases,

smokes, dusts or pollutants into the atmosphere, without

applying preventive or safety measures; and/or

94 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
(iii) fails to manage hazardous materials and wastes in accordance with LGEEPA and Mexico’s Official Standards issued

by Semarnat.

5. Provide information on the acts undertaken by municipal, state or

federal authorities in health, environment, labor, social development or any other areas, and any administrative files kept thereby,

in relation to the reported health effects on the Submitter, his family and other residents in the area, allegedly caused by ALCA’s air

emissions and its alleged hazardous substances mismanagement.

Indicate how the potential effects and risks of ALCA’s operations

for the environment and the health of neighboring residents have

been evaluated.

6. Provide a copy of any information in the possession of municipal,

state or federal authorities in areas of health, environment, labor,

social development or other, in relation to reported health effects

on the Submitter, his family and other residents in the area, allegedly caused by ALCA’s air emissions and its alleged hazardous

substances mismanagement.

7. Provide a copy of the information that ALCA has reported to

municipal, state or federal authorities, with respect to its releases

and handling of hazardous wastes and substances, its high-risk

activities, and environmental impact, and including any information submitted in statements, studies, samplings, logbooks, monitoring data, reports, notices, requests and renewals for permits and

licenses from the time its operations began, and in particular, since

the date of the submission on 25 November 2002.

8. Provide a complete copy of the Technical Opinion with respect to

the advice not to exercise criminal action that Mexico attached to its

response as Exhibit 11.

9. Provide a copy of the official documents regarding the flooding of

Profepa’s file room, where the citizen complaint presented by the

Submitter on 10 November 1995 was filed.

10. Attached to the submission is a document dated 14 February 2002

and issued by Profepa’s General Bureau of Environmental Complaints and Social Participation (Dirección General de Denuncias

APPENDIX 4 95
Ambientales, Quejas y Participación Social),1 which cites the following actions undertaken by the authority with respect to the complaints regarding ALCA:

(i) An inspection visit dated 7 December 1994, following a citizen complaint filed on 5 October 1994, by Ángel Soto Medina.

During the visit, various violations of federal environmental

rules were detected, and the temporary partial closing of pollution sources was imposed as a safety measure. The closure

was lifted on 14 August 1996.

(ii) With respect to the citizen complaint filed by Ángel Lara

García on 13 January 1997, an inspection visit was conducted

on 10 March 1997. Given the company’s observed noncompliance, an administrative ruling was issued on 5 September

1997, imposing a fine of 21,160.00 pesos and ordering that

various correction actions be implemented.

(iii) An inspection visit was carried out on 17 February 2000, with

non-compliances noted in relation to hazardous waste generation.

(iv) An inspection visit on 27 July 2001, found possible offenses

regarding hazardous waste, risks and air pollution.

In its response, Mexico provided information only with respect to

the last administrative procedure listed in the Profepa document.

Please provide a copy of all the documents corresponding to the

acts cited above and of the acts and other documents in the files

addressing any other administrative procedures in the inspection

and monitoring of ALCA initiated by Profepa, in relation to the

handling of hazardous substances and wastes and the release of

atmospheric pollutants, in accordance with applicable legislation.

11. All the inspection and monitoring procedures mentioned by Mexico in its response were completed before the Submitter presented

the submissions filed in November 2002 and June 2003 and in

which the Submitter asserts that ALCA allegedly continued to violate Articles 150 of the LGEEPA and 414, first paragraph and 415,

paragraph I of the CPF. Provide information regarding the acts

96 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

1. Ruling No. DG/094/DI/167/2002, FOLIO 027/4/98/2, dated 14 February 2002,

issued by the General Bureau of Environmental Complaints and Public Participation, signed by General Director Edgar del Villar Alvelais.
undertaken with respect to ALCA to enforce these provisions,

from 25 November 2002 to date.

11. Provide information on the criteria applied by the relevant authority in considering repeat offenses, in all the acts undertaken to

enforce Articles 150 of the LGEEPA and 414, first paragraph and

415, paragraph I of the CPF, in relation to ALCA since the beginning of its operations.

12. Provide information on the effectiveness of Mexico’s enforcement

of Articles 150 of the LGEEPA and 414, first paragraph of the

CPF, in relation to ALCA’s handling of hazardous substances and

wastes since the beginning of its operations.

13. Provide information on the effectiveness of Mexico’s enforcement

of Article 415, paragraph I of the CPF, in relation to ALCA’s atmospheric emissions since the beginning of its operations.

14. Provide any other technical, scientific or other information that

could be relevant in the development of this factual record.

APPENDIX 4 97
98 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

Mexican Authorities Recipient of a Request

for Information for the Development of the

Factual Record on Submission SEM-03-004

FEDERAL

Ministry of Environment and

Natural Resources (Semarnat)

• Secretary for Environment

and Natural Resources

• International Affairs

Coordination Unit (UCAI)

Federal Attorney for Environmental Protection (Profepa)

• Profepa Delegation in the

Valle de México metropolitan area

• General Bureau of Pollution

Source Inspection

• Environmental Emergency

Response Resource Center

(Centro de Orientación para la

Atención de emergencias

Ambientales—COATEA)

Ministry of Social Development

• General Bureau of the

National Institute for the

Elderly (Instituto Nacional

de las Personas Mayores—

INAPAM)

• INAPAM Legal Office

STATE

Mexico City Government

• Urban Development and

Housing Department

(Secretaría de Desarrollo

Urbano y Vivienda—

SEDUVI)

• SEDUVI Urban

Development Office

• Borough of Iztapalapa

• Civil Protection

Coordination of the

Borough of Iztapalapa
APPENDIX 5

Information Requests to NGOs,

JPAC and other Parties to the NAAEC

Form Letter to NGOs

28 November 2005

Re: Request for information relevant to the factual record

for Submission SEM-03-004 (ALCA-Iztapalapa II)

The Secretariat of the Commission for Environmental Cooperation

of North America (CEC) recently began the process of preparing a “factual record” regarding the assertion that Mexico is failing to effectively

enforce its environmental law with respect to the operation of a footwear

materials factory owned by the company ALCA, S.A. de C.V. (hereinafter “ALCA”) and located on property neighboring the Submitter’s residence in the Santa Isabel Industrial neighborhood of Iztapalapa District

in Mexico City. This assertion was made in a “submission” filed with the

CEC Secretariat in June 2003 by Mr. Ángel Lara García.

I am writing to invite you to submit information relevant to the factual record. The attached Request for Information explains the citizen

submissions and factual records process, gives background on the submission referred to as ALCA-Iztapalapa II (SEM-03-004), describes the

scope of the information to be included in the factual record for this submission, and provides examples of information that might be relevant.

We will accept information for possible consideration in connection

with the factual record until 15 February 2006.

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

Attachment

APPENDIX 5 101
Memorandum to the Joint

Public Advisory Committee

Memorandum

DATE: 17 November 2005

À / PARA / TO: Chair, JPAC

CC: JPAC Members, CEC 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-03-004 (ALCA-Iztapalapa II)

As you know, the CEC Secretariat recently began the process

of preparing a factual record for the submission SEM-03-004 (ALCAIztapalapa II). This submission was filed with the Secretariat in June 2003

by Ángel Lara García. Consistent with Council Resolution 05-05, the factual record will focus on the assertion that Mexico is failing to effectively

enforce its environmental laws with respect to the operation of a footwear products facility owned by a company called ALCA, S.A. de C.V.

(ALCA), located on a piece of land adjacent to the personal address of

the Submitter in the Santa Isabel Industrial neighborhood, in Mexico

City, D.F.

I am writing to invite the JPAC to submit information relevant to

the factual record, consistent with Article 15(4)(c) and Article 16(5) of the

NAAEC. The attached Request for Information, which has been posted

on the CEC website, provides background on the ALCA-Iztapalapa 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 possible consideration in connection with the factual record until 15 February 2006.

We appreciate your consideration of this request and look forward

to any relevant information you are able to provide. For any questions,

please send an email to the attention of Rosa Blandon, at <rblandon

@cec.org>.

102 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Letter to the Other Parties of the NAAEC

(Canada and US)

16 November 2005

Re: Invitation to provide information relevant to the factual

record for submission SEM-03-004 (ALCA-Iztapalapa II)

As you know, the CEC Secretariat recently began the process

of preparing a factual record for submission SEM-03-004 (ALCAIztapalapa II), consistent with Council Resolution 05-05. 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, provides background information on the ALCAIztapalapa 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 February 15, 2006.

We appreciate your consideration of this request and look forward

to any relevant information you are able to provide. For any questions,

please send an email to the attention of Rosa Blandon, at <rblandon

@cec.org>.

Sincerely,

Legal Officer

Submissions on Enforcement Matters Unit

cc: [US EPA]

Semarnat

[Environment Canada]

CEC Executive Director

Enclosure

APPENDIX 5 103
Nongovernmental organizations and individual

recipients of a request for information

for development of the factual record

in regard to Submission SEM-03-004

ALCA, S.A. de C.V.

Ángel Lara García

National Chemical Industry Association (Asociación Nacional de la

Industria Química—ANIQ)

• General Direction

• Environment Directorate

Commission of Private Sector Studies for Sustainable Development

• Executive Director’s Office

National Respiratory Disease Institute (Instituto Nacional de

Enfermedades Respiratorias—INER)

• Department of Biochemistry and Environmental Medicine

104 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
APPENDIX 6

Chronology of events
Chronology of events

106 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Chronology of events

APPENDIX 6 107
Chronology of events

108 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Chronology of events

APPENDIX 6 109

APPENDIX 7

Figures

APPENDIX 7 113
114 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
APPENDIX 8

Photographs

Photo No. 1: View to the west of Submitter’s residence, located at 11 Cerrada de Vaqueros

street.

Photo No. 2: Zone for delivering of solvents (xylene and styrene), next to Submitter’s residence on 11 Cerrada de Vaqueros. There is a hole in the wall for inserting a hose used to

deliver the product.

APPENDIX 8 117
Photo No. 3: Styrene monomer storage tank with capacity of 9,000 liters. Only some of the

tanks were observed to have the corresponding indications.

Photo No. 4: Area with storage tanks for chemical products. There are no signs indicating

the presence of risk. At the back of the area is the wall bordering the Submitter’s residence.

118 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Photo No. 5: Reactor used to produce latex. The drums were used for transporting the

product to the saturation area. Day tanks for xylene and styrene monomer can be seen at

the back.

Photo No. 6: View of the outdoor area where the activator was prepared. The process was

conducted in the open air. Also visible is a screen for catching any product spilled.

APPENDIX 8 119
Photo No. 7: Machine for saturating fabric with polymer.

Photo No. 8: View of horizontal oven for drying polymer-saturated fabric.

120 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
Photo No. 9: Area for storing hazardous wastes. Drums with solvents and used oils were

observed there.

Photo No. 10: Dismantling of the ALCA’s facility.

APPENDIX 8 121

ATTACHMENT 1

Council Resolution 08-02

30 May 2008

COUNCIL RESOLUTION: 08-02

Instruction to the Secretariat of the Commission for Environmental

Cooperation to make public the Factual Record for Submissions

SEM-03-004 (ALCA-Iztapalapa 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-03-004; and

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;

HEREBY DECIDES:

TO MAKE PUBLIC and post on the registry the final factual record

for Submission SEM-03-004;

TO ATTACH to the final factual record comments provided by

Canada, Mexico, and the United States of America to the Secretariat on

the draft factual record; and

TO INCLUDE with the final factual record a disclaimer which

states that the document was prepared by the Secretariat, and that the

views contained therein do not necessarily reflect the views of the governments of Canada, Mexico or the United States of America.

COUNCIL RESOLUTION 08-02 125
APPROVED IN THE NAME OF THE COUNCIL:

David McGovern

Government of Canada

Enrique Lendo Fuentes

Government of the United Mexican States

Scott Fulton

Government of the United States of America

126 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
ATTACHMENT 2

Comments of Canada

September 17, 2007

Adrián Vazquez

Executive Director

Secretariat of the Commission for Environmental Cooperation

393 St-Jacques Street West, Suite 200

Montreal, QC H2Y 1N9

Dear Mr. Vázquez,

Further to Article 15(5) of the North American Agreement on

Environmental Cooperation (NAAEC), the Government of Canada

has reviewed the draft Factual Record for Submission SEM-03-004

(ALCA-Iztapalapa II).

As a supporter of the citizen submissions process, Canada is providing the following comments to ensure that factual records are accurate in their scope and purpose.

Canada’s longstanding position has been that the factual record

should consist of an impartial reporting of facts which allows the public

to formulate independent conclusions. The factual record, therefore,

should not include opinions or draw conclusions. Canada is concerned

that the following passages in the draft factual record provide legal

opinions. In discussing the prosecutorial strategy of the Office of the

Federal Public Prosecutor (MPF) the factual record states on page 44:

. . . that the MPF had the opportunity to use other evidence gathering

methods contemplated in criminal law but did not do so.

The draft factual record goes on to state on page 45:

. . . the public prosecutor did not gather enough proof before the district

judge to substantiate the offenses allegedly commited by ALCA’s representatives. . . In analyzing the documentation based on which the MPF

decided not to proceed with criminal prosecution, the Secretariat found

that the MPF had other means of proof contemplated in the criminal law at

its disposal but did not use them.

These passages indicate that the analysis and opinion of the expert

is being presented as a factual conclusion. Canada is of the view that this

type of legal analysis is not appropriate for the factual record.

COMMENTS OF CANADA 129
Canada also questions the use of information from the UNDP

report Informe sobre Desarrollo Humano en Mexico 2004. The quote drawn

from this report on pages 18 and 44 is inserted into the factual record as

a factual statement on the capacity of the MPF. While the use of such

publicly available information is permitted under Article 15(4)(a) of

NAAEC, Canada believes it is essential to ensure that the full context of

quotes are included within the factual record. In this case, the quote is in

relation to all criminal prosecutions and therefore may not be applicable

for environmental violations. In providing the full context, the Secretariat can ensure that the appropriate weight is given to the information.

As a procedural matter, comments of a Party are not to be made

public unless and until Council votes to make the final factual record

publicly available pursuant to Article 15(7) of the NAAEC.

Canada appreciates the substantial work of the Secretariat in compiling the draft factual record and hopes that our comments will assist

the Secretariat in ensuring that the factual record for ALCA-Iztapalapa II

constitutes an objective reporting of the facts.

Yours sincerely,

David McGovern

CEC Council Alternate Representative, Canada

Assistant Deputy Minister, International Affairs, Environment Canada

cc: Jerry Clifford, Alternate Representative, US EPA

Enrique Lendo, Alternate Representative, Mexico, SEMARNAT

130 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
ATTACHMENT 3

Comments of United States

September 18, 2007

Mr. Adrian Vazquez

Executive Director

Secretariat of the Commission for Environmental Cooperation (CEC)

393, rue St-Jacques west, bureau 200

Montreal QC H27 1N9

Re: ALCA-Iztapalapa II Factual Record

Dear Mr. Vazquez,

Thank you for providing the United States with a copy of the

draft factual record for Submission SEM-03-004 (ALCA-Iztapalapa II).

The United States continues to support the submissions on enforcement

matters process provided for under Articles 14 and 15 of the North

American Agreement on Environmental Cooperation (NAAEC) and

welcomes the opportunity to review and comment on this draft factual

record.

In our view, a factual record should provide the public with an

impartial presentation of the relevant facts, and should not contain conclusions by the Secretariat as to whether a Party is, in fact, effectively

enforcing its environmental law. It is within this context that the United

States provides the comments to the Secretariat on the ALCA-Iztapalapa

II draft factual record as an attachment to this letter.

The United States recognizes the substantial effort it took to prepare this draft factual record and deeply appreciates the Secretariat’s

effort in this regard.

Should you have any questions regarding the United States’ comments, please do not hesitate to contact Nadtya Hong (202-564-1391)

or Anne Rowley Berns (202-564-1762).

Sincerely,

Jerry Clifford

Acting Assistant Administrator

U.S. Alternate Representative

to the CEC Council

Attachment

COMMENTS OF UNITED STATES 133
Attachment: Comments of the United States of America on

the ALCA-Iztapalapa II Draft Factual Record

• The U.S. suggests that the word “residents” in the first sentence of the

first paragraph of page 1 of the draft factual record be replaced with

the word “persons,” and that the word “citizen” be removed from

that same sentence. Under Article 14.1 of the North American Agreement on Environmental Cooperation the Secretariat may consider a

submission on enforcement matters from any “person” residing or

established in Canada, Mexico, or the U.S. The word “person” would

therefore include not only citizens and permanent residents, but also

juridical persons, such as corporations or environmental non-governmental organizations, of Canada, Mexico, or the U.S.

• The reference in the third paragraph of page 18 of the draft factual

record, to the United Nations Development Programme human

development report on Mexico, does not, at least as currently drafted,

seem relevant, because the reference is to a discussion of Mexican

criminal law proceedings in general, and not specifically to any proceedings related to assertions raised in the ALCA-Iztapalapa II submission. We therefore think the paragraph should be removed.

• The U.S. suggests that information in the second paragraph of page 40

of the draft factual record be rephrased so that it is a description of

facts, e.g., of what the relevant Mexican laws actually say as contrasted with the enforcement actions taken by the Federal District,

rather than purely as a legal conclusion drawn by the Secretariat.

134 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
ATTACHMENT 4

Comments of Mexico

LEGAL AFFAIRS COORDINATING UNIT

ADJUNCT GENERAL BUREAU FOR

LEGISLATION AND CONSULTATION

CONSULTATION BUREAU

F.I.: 09393

OFFICIAL COMMUNICATION

NO. 112/00004663/07

Mexico City, 19 September 2007

FELIPE ADRIÁN VÁZQUEZ GÁLVEZ

EXECUTIVE DIRECTOR

COMMISSION FOR ENVIRONMENTAL COOPERATION

With respect to your Memorandum dated 6 August 2007, pursuant

to Article 15(5) of the North American Agreement on Environmental

Cooperation (NAAEC), we hereby submit the comments of the Party on

the draft factual record for citizen submission SEM-03-004 (ALCAIztapalapa II).

The Party finds that the draft text contains various inaccuracies,

but calls attention to three matters exceeding the Council mandate and

therefore affecting the contents of the factual record, as detailed below:

I. The draft addresses issues not included in the submission.

To clarify this point, we refer to the issues set out by the submitter,

summarized as follows:

• He submitted a complaint with the Office of the Federal Attorney

for Environmental Protection (Procuraduría Federal de Protección al

Ambiente—Profepa) against the company ALCA, S.A. de C.V., leading to the criminal investigation No. 4999/FEDEC/97. A criminal

prosecution was begun against the company, although the company

was found not guilty because the investigation was allegedly not

properly conducted;

• His submission to the Secretariat is based on Articles 414, first paragraph and 415, section I of the Federal Penal Code (Código Penal Federal—CPF), and Article 150, first paragraph of the General Ecological

Balance and Environmental Protection Act (Ley General del Equilibrio

Ecológico y la Protección al Ambiente—LGEEPA);

COMMENTS OF MEXICO 137
• He asks that a party response is requested from the government of his

country, considering the grave harm to his person and his community, and stated that he had exhausted all remedies available to assure

adequate environmental law enforcement.

However, the Secretariat’s draft factual record includes sections on

issues beyond those stated by the submitter, such as:

a) In numeral 6.2, LGEEPA Article 150 at pages 11 to 13, the Secretariat’s

analysis addresses the full text of the article, although the submitter’s submission includes only the first paragraph thereof.

The second paragraph on page 12 states the obligations that allegedly applied to ALCA with respect to the hazardous materials and

waste inspected by Profepa, which do not correspond to enforcement of the law but rather the obligations that, in the Secretariat’s

view, should be met by a private interest.

The last paragraph of the same section includes a reference to

Mexican Official Standard (Norma Oficial Mexicana) NOM-052-

SEMARNAT-1993, which falls outside the scope of LGEEPA Article

150 and the Council mandate.

Numeral 6.3, Context of Environmental Law, is subdivided into

numerals 6.3.1 and 6.3.2, which respectively refer to Environmental

Law and Environmental Crimes Legislation, at pages 13 to 20, addressing Profepa’s jurisdiction, penalties, criminal actions, assistance to

the prosecutorial authorities, agencies specializing in environmental crimes, and the threshold for evidencing the existence of a

possible crime and means of proof.

The Party believes that the draft, by focusing on issues and articles

not stated in the submission or falling outside the Council mandate,

generates unnecessary information that does not constitute a reference framework for interpreting LGEEPA Article 150, first paragraph and CPF Articles 414, first paragraph and 415, section I in

effect at the time the facts described by the submitter occurred.

b) Section 7, History of ALCA in Iztapalapa (pages 20 to 25) should not be

included in the factual record, as the Council Resolution does not

include any consideration of the background to the company’s

operations or sociogeographical issues of the Iztapalapa section of

Mexico City that justifies the analysis of these topics.

138 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
This is significant, considering that the Secretariat offers no reason

to justify why historical information is necessary for the facts

asserted in the submission, or how such information relates to

Mexico’s effective enforcement of its environmental laws.

c) In section 8, the Secretariat inserts information on the symptoms to

human health caused by exposure to various chemicals allegedly

used by ALCA, although the submission of Mr. Ángel Lara García

did not assert any fact regarding specific symptoms or illnesses.

Moreover, the first paragraph of section 8 (page 25) states that “... the

submitter, in various letters to the authorities, reported that emissions and

vapors from compounds used by ALCA were causing him nuisance and

harming his health...” The footnotes included in the draft make no

reference enabling an identification of the documents where the

submitter makes these assertions.

The same paragraph further states that other persons exhibited symptoms including dizziness, eye irritation and burning and headaches. To

support this information, the draft includes a reference to two

unnumbered official communications dated December 5, 2001 and

February 24, 2003, issued by administrative units of the National

Senior Citizen’s Institute (Instituto Nacional de las Personas Adultas

Mayores—INAPAM).

However, this information is inaccurate, as it fails to establish any

linkage with the company’s operations or the facts stated in the submission. Note that the documents referenced by the Secretariat were

requested by the submitter himself.

Chapter 8 as a whole constitutes the Secretariat’s interpretation of

the possible effects on dwellers of the substances allegedly used by

ALCA. However, it should be noted that:

• Symptoms depend on the extent and time of human exposure

to a given substance, and therefore their existence cannot be

inferred, and require at least a vulnerability study.

• The mere citation of scientific or medical information is not

enough; epidemiology issues need to be addressed by a medical

expert. Otherwise, information is taken out of context and is

used speculatively.

COMMENTS OF MEXICO 139
• The toxicological profiling of substances does not constitute

scientific evidence linked to the submission or the alleged

symptomology that the Secretariat attributes to the submitter.

• The Secretariat collected information on the materials allegedly

used by ALCA in its processes at year-end, improperly basing

stock estimates on warehouse capacity.

Page 30 includes a chart intended to summarize the rules applicable

to the substances allegedly used by ALCA.

However, it does not state the purpose of this comparative analysis.

Considering that the information preceding it is incomplete, a

reader may get the idea that the Party failed to regulate certain

substances even where, under the environmental laws, they should

not be regulated by Mexican Official Standards.

d) The first paragraph of section 9, Environmental Law Enforcement in the

Case of ALCA (page 31) should not be included in the factual record,

since the submitter did not assert the alleged failure to effectively

enforce environmental laws in such regard.

Numeral 9.1, Complaints Filed against ALCA, also should be deleted,

since the Secretariat states that the submitter appeared before a

number of government agencies and institutions, allegedly documenting 21 complaints relating the matter raised in the submission.

However, it states that “... in nearly all cases, it is certain that the petitioner was Ángel Lara García, although in some cases the complaint

was filed by someone else, at the submitter’s request...”

This assertion is at odds with the statement at page 32, that “... the

Secretariat has obtained some of the documents containing the complaints,

while in the remaining cases, the information comes from documents issued

by the authorities, in reference to a complaint...”.

It should be noted that the information on the content of the complaints filed is imprecise, as it refers only to official communications

issued by various authorities without evidence of the purpose, petitioner or whether they refer to the enforcement of Mexican environmental laws, in order to link them with the submission.

Therefore, the Secretariat’s mere assertion is insufficient to consider

the existence of such complaints.

140 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
In addition, table 4 on pages 32 and 33 leads the reader to believe

that the complaints, rulings and letters described therein constitute

a repeated failure to enforce environmental laws, and furthermore

that all of them were filed, sought or requested by the submitter.

II. Inclusion of opinions constituting an assessment of the Party’s

actions.

In the last paragraph of pages 2 and 3, the Secretariat asserts that it

requested an expert opinion on the determination of the Office of the

Federal Public Prosecutor (Ministerio Público Federal—MPF) issued on

2000, deciding not to order a criminal prosecution due to the lack of evidence. The expert found that while the MPF action was in accordance

with law, it had other evidence available that were not considered.

This assertion is reiterated in the following sections:

• Page 19, third paragraph:

For these reasons, at the time of the criminal investigation, substantiation

of the alleged offences required a much more thorough analysis than was

required after 1999.

• Page 22, sixth paragraph:

In the opinion of the Secretariat’s legal consultant, the technical complexity

of environmental offenses normally requires the use of expert testimony,

which in this case could determine whether hazardous materials or wastes

were at issue; establish the presence of harm—or at least danger—to public

health, natural resources, fauna, flora or ecosystems; identify the conduct

as causing the emission, release or discharge or gas, smoke or dust into the

atmosphere, or determine the violation of the terms of the authorization

from the competent federal authority, or the violation of the provisions of

applicable laws or NOMs.

• Page 44, last paragraph and the first paragraph on page 45:

In reviewing the documentation on the decision not to proceed with

criminal prosecution, the Secretariat’s legal consultant found that the

MPF had the opportunity to use other evidence gathering methods

contemplated in criminal law but it did not do so. These included

search of premises, testimony of neighbors and company employees, and expert testimony on public health and ecology. The authorities could also have produced a report explaining the link between

the conduct and the result (dictamen de nexo causal).

COMMENTS OF MEXICO 141
As seen, the above statements do not constitute a fact or statement

thereof, but rather an examination and assessment of the MPF’s actions,

whereby the Secretariat goes beyond the Council instructions.

The information prepared by the Secretariat through experts cannot qualify the suitability, relevance or scope of the investigations conducted or question how they were carried on.

This is because the purpose of the development of a factual record

is to make public any information on events relating to the effective

enforcement of environmental laws by the NAAEC parties.

The Secretariat’s function is to state such facts, without such presentation is not translated into conclusions or opinions affecting the

reader’s own interpretation and implicitly leading him to share the opinions set out in the document.

A factual record cannot establish conclusions, and especially

should not contain statements that may be construed as incriminating

the Party; it should join and summarize the essences of the submission

and the response. Otherwise, the insertion of opinions, viewpoints or

judgments as to the Party’s actions implicitly make the Secretariat a

reviewing agency, a power not conferred by the NAAEC, thereby affecting the impartiality of its actions.

To demonstrate its impartiality, the factual record should address

the information provided by the Party in its response, as regards the

MPF’s 22 August 2000 decision not to prosecute, because:

• The investigations did not fully substantiate the corpus delicti

contemplated and penalized by Article 415, paragraph I of the

Federal Criminal Code nor the probable liability of the suspects.

• It may be deduced from the proceedings that, although the facts

asserted may constitute an offense, it is impossible to prove the

existence of that offense due to insuperable material obstacle.

The Secretariat states, in this same regard, that it consulted the government of Mexico on other means of proof available to the MPF and

why they were not considered at the investigation stage.1

142 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

1. Request for additional information, of 7 September 2006, to Director, Legislation and

Consultation Branch of Semarnat.
When no response was forthcoming, the Secretariat asked Mexico

to provide an explanation in the event that it could not legally respond to

the request; however, no explanation was obtained.

However, the Secretariat fails to consider that its authority to collect information for the development of a factual record does not justify

its request for explanations on the actions of an investigative authority,

since this would make it a supranational reviewing agency, which is not

the intent of the NAAEC with respect to citizen submissions or factual

records.

III. Inclusion of information contained in reports from

international organizations providing isolated considerations

that, when used outside their original context, constitute a

characterization of the Party’s actions.

In section 6.3.2, Enforcement of Environmental Criminal Law, subsection c, Specialized Environmental Law Enforcement Entities (page 18, third

paragraph) the Secretariat provides the following information:

In relation to the MPF’s investigative capacity, the 2004 human development report on Mexico, published by the United Nations Development

Program (UNDP), states that “[...] officials set aside cases requiring greater

investigative effort in order to identify a suspect and at times leave evidence gathering to the prosecution [...] the Office of the Public Prosecutor

tends not to proceed with criminal prosecution in more complex cases,

arguing, for example, lack of evidence.”

This reference does not constitute a fact nor does it provide any

objective information, although it does carry an implied opinion of the

actions of Mexican prosecutors based on a value judgment taken out of

context, leading the reader towards an opinion, rather than enabling the

reader to form his own opinion based on impartial and objective information. Therefore, the Secretariat is acting outside the instructions given

by the Council.

Note also that the above publication does not fall under the definition of environmental law pursuant to NAAEC Article 45(2), and that it

bears no relationship with the facts described in the submission or any

matter raised therein.

IV. Other inaccuracies

1) The Secretariat states that the submitter, Angel Lara García, asserts

that the Party is failing to effectively enforce its environmental laws,

COMMENTS OF MEXICO 143
expressly referring to such assertion at pages 1, 3 and 4 of the of the submission (section 1, Executive Summary, second paragraph, page 1; section

2, Summary of the Submission, first paragraph, page 3; section 9, Environmental Law Enforcement in the Case of ALCA, first paragraph, page 31;

numeral 9.2.2 of said section, first paragraph, page 38; numeral 9.4 of

said section, first paragraph, page 40).

However, in submission SEM-03-004 (ALCA-Iztapalapa II), Mr.

Lara García never makes the assertions indicated by the Secretariat.

2) In the third paragraph on page 2, summarizing the purpose of the closures imposed by Profepa against ALCA, S.A. de C.V., the Secretariat

holds that the second closing ordered by Profepa in 1997 was based on

the company’s persistence in violations involving air emissions.

By using the term “persistence of other air emission-related instances”,

it assumes that the closure imposed in 1994 was due to company violations. This is inaccurate, as the same paragraph states; the first closure

was ordered after the corrective measures ordered by Profepa were

carried on.

Therefore, it is necessary for the Secretariat to specify that the cause

for the second closure was the company’s second violation of Mexican

environmental law.

3) In that same paragraph, the Secretariat asserts that “Profepa ultimately

deviated from the conditions imposed and accepted the criterion proposed by

ALCA for analysis of its pollutant emissions.” This statement is repeated in:

• Fourth paragraph of page 37 (9. Environmental Law Enforcement

Against ALCA):

On 4 November 1997, Profepa deviated from the conditions

imposed and allowed ALCA to implement alternative measures

including change and reduction in the use of solvents, permanent

suspension of production of activators, and construction of emission control structures.2 Profepa also accepted VOC measurement

to determine the advisability of installing emission control equipment.

144 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION

2. The works consisted of raising the wall adjacent to Ángel Lara’s lot from 3.5 to 8

meters; covering the building housing the furnaces with Pintro-brand siding; installing a hood in the preparation area; and changing the direction of the furnace outlet

duct so that it pointed away from Mr. Lara’s house. Administrative decision no.

252/97, of 4 November 1997, by the Industrial Inspection Branch.
• Last paragraph on page 46 (10. Final Note):

In December 1997, Profepa modified the conditions previously

imposed, and instead of requiring the installation of filters to control

COV emissions, accepted ALCA’s proposal to reduce and change

the use of certain solvents as well as to use the criterion proposed by

the company for analysis of its emissions.

More than a statement of fact, these sentences constitute inaccurate

assertions leading to error in the assessment of the Mexican environmental authority’s actions.

The information analyzed by the Secretariat is also incomplete, as

it fails to refer to the technical reasons offered by the company to propose

alternative measures, and to the fact that the proposal was technically

reviewed prior to approval. This information is found in documents that

the Secretariat had available but failed to analyze.

Under Mexican law, the substitution of measures is legally appropriate because it materializes the general principle of law that no one is

bound to do the impossible. Also, Profepa determined other technically

feasible measures for the company to remedy the irregularities found.

Note that Profepa did not set aside the conditions imposed to lift

the closure, but rather endeavored to effectively enforce the law and protect the environment.

Therefore, the wording of the aforementioned paragraphs should

be changed so that they effectively summarize the authority’s actions

and not contain statements qualifying such information, especially considering that it is already provided in the executive summary.

4) In the last paragraph of section 3, “Party’s Response”, the Secretariat

refers to a procedure with the Semarnat’s Internal Control Agency

(Contraloría Interna). In this regard, notwithstanding the Party’s reference thereto in its response, such procedure cannot be included in the

factual record because these procedures are not deemed environmental

laws for NAAEC purposes, and the analysis does not constitute a topic

subject to review by the Secretariat.

5) In section 4, Scope of the Factual Record, the Secretariat states that “... the

Council noted that the submission alleges “a lengthy history of releases

of toxic chemicals, as well as continuation of such releases following

COMMENTS OF MEXICO 145
enforcement action taken by the Government of Mexico in 2001.” (second paragraph on page 6).

However, in its Resolution, the Council only states that it took note

of the fact that the submission alleges a lengthy history of releases of toxic

chemicals, as well as continuation of such releases following enforcement action

taken by the Government of Mexico in 2001.

We therefore find that by generalizing all statements contained in

the preamble to the Council resolution as considerations, the draft creates

the impression of an incomplete analysis leading to evidence of persistent releases and therefore a persistent alleged failure of the Mexican

environmental authority.

6) In section 5, Information Gathering Process, seventh paragraph, the Secretariat states that through the “Access to Information System (Sistema de

Solicitudes de Información) of the Federal Access to Information Institute

(Instituto Federal de Acceso a la Información Pública), the Secretariat’s consultant on environmental criminal law requested from the PGR the

information that served as a basis for not to proceed with criminal prosecution”, and therefore “The Secretariat sent Mexico a memo requesting

clarifications concerning the criminal investigation of ALCA” and that

the Party “did not respond to the request for clarification, nor did it indicate the reasons why it failed to respond”.

In this regard, the Secretariat fails to consider that under NAAEC

Article 15(4), the Party is to provide information to the Secretariat, and

shall be provided any available information, but is not bound to provide

explanations.

7) In Section 6, “Content and Scope of the Environmental Law in Question”, the Secretariat includes inaccurate information and draws conclusions outside the spirit of the factual record, which should therefore be

eliminated. In this regard, the following is specified:

In the introduction, the Secretariat states, with respect to the

amendments to the criminal law, that “Of particular note are the revisions to the criminal provisions; in 1996 the environmental offenses were

incorporated into a single body of law—the CPF—for greater order and

systematization. With this reform, the offenses previously contemplated

in LGEEPA and other special environmental laws were incorporated

into the CPF under the title Delitos Ambientales (Environmental Offenses).

In the 2002 revision of the CPF, the title of the chapter was changed

to Delitos contra el Ambiente (Offenses against the Environment) and an

146 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
attempt was made to create a fairer and more graduated criminal liability system.”

In the above text, more than stating a fact, the Secretariat seeks to

summarize the purpose of the amendments, drawing on the reasons

stated by the legislators in the statement of legislative intent from the

initial stage of the legislative process. Anything stated in this stage (bill)

does not constitute a justification of the amendment, thereby creating

inaccuracies in the information included in the draft.

8) Section 6.1, analyzing CPF Articles 414, first paragraph and 415, section I, states that “The submission cites the offenses defined in Article 414, first

paragraph (environmental harm caused by hazardous waste)...”

Note that this sentence does not completely summarize the definition of the crime, as it refers to damage caused by activities involving the

handling of hazardous waste. As the Secretariat describes it, one may

suppose that the mere existence of hazardous waste may cause damage

to the environment and be deemed a crime accordingly.

The summary of the crime described in Article 415, section I, qualifying as a crime the emission, discharge, release or authorization or

ordering of such emission, discharge or release into the environment

without authorization, is likewise incomplete. The Secretariat attempts

to summarize the provisions of the article, and in doing so states that air

emissions are crimes, which is incorrect.

9) In section 6.2, entitled “LGEEPA Article 150,” the Secretariat states

that “... Article 150 establishes the obligation to manage hazardous

materials and wastes pursuant as prescribed by LGEEPA and its hazardous waste regulation...”

This is incorrect. LGEEPA Article 150 provides that the management of hazardous materials and waste is to be done pursuant to the Act,

its Regulations and other legal provisions deriving thereunder, but

without establishing a specific name for such Regulations.

The Secretariat goes on to state that “... Article 150 also provides

that the scope of the administrative regulations comprises the use, collection, storage, transportation, reuse, recycling, treatment, and final

disposal of hazardous wastes...”

This assertion is inaccurate. The end of the first paragraph of

LGEEPA Article 150, transcribed by the Secretariat, uses the term

COMMENTS OF MEXICO 147
“regulación”, and not “reglamentación”. [Translator’s note: The term

“regulación” refers to the act of being regulated, while the term

“reglamentación” refers to the specific adoption of regulatory provisions.] Therefore, the management of hazardous waste and materials

may be addressed not only in regulations but also in Mexican Official

Standards, Mexican Standards or any other legal instrument that the

Secretariat of the Environment and Natural Resources (Semarnat) has

the authority to issue.

The Secretariat further holds that “... The LGEEPA provides that

the regulation and control of hazardous materials and wastes are under

federal jurisdiction. In addition to the relevant definitions, it includes the

responsibility of the hazardous waste generator and a permitting system

whereby generators are required to install and operate waste management, treatment, and final disposal systems...”

This is inaccurate; the authorization (not permit) system includes

persons providing hazardous waste management services. As regards

the obligation of generators to install and operate handling, treatment

and disposal systems, the Secretariat is incorrect in its summary of the

provisions of LGEEPA Articles 151 and 151 bis.

The Secretariat further states that “... NOM-052-SEMARNAT1993, updated in June 2006, establishes the characteristics for a waste to

be considered hazardous; lists the activities which, when carried out

with certain hazardous materials, are considered to generate hazardous

wastes; and sets the thresholds above which a waste is considered toxic

in the environment...”

This is incorrect and inaccurate. NOM-052 lists the substances

whose presence in a waste, regardless of the percentage thereof, make

such waste hazardous; classifies waste based on the generating source

(not hazardous waste-generating activities as claimed by the Secretariat); defines corrosive, reactive, explosive and flammable characteristics

and the level or percentage of presence thereof making waste hazardous; and how waste is characterized to determine whether or not such

concentrations exist.

Although ALCA’s production activities are not specifically listed

in this NOM, certain wastes derived from generic activities are listed...”

The Secretariat is incorrect, as the aforesaid lists correspond to a list

of waste classified as hazardous based on the generating source. Thus,

148 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION
ALCA’s activities are not listed in the standard, and therefore do not

constitute a hazardous waste-generating source.

The degree of hazard of waste generated during ALCA’s production processes may be determined based on the levels of corrosive, reactive, flammable or toxic characteristics, as provided elsewhere in the

Official Mexican Standard but not in the above-mentioned lists.

10) Section 6.3, entitled Context of the Environmental Law in Question,

states that “The system delimiting the powers of the federation, the

states, and the Federal District with respect to environmental matters is

established in LGEEPA Articles 7, 9, 111 bis, and 112...”

This is incorrect and the transcriptions inserted in the following

lines are incomplete. The aforesaid provisions establish powers to the

different levels of government with respect to air pollution prevention

and control, not environmental enforcement as a whole.

In its transcriptions, the Secretariat also fails to reference the federal authority with respect to air pollution prevention and control, and

to clarify competencies in the case of odors. This is significant as it makes

the Secretariat’s assertions on the scope of Article 112 inaccurate.

The same section also includes an assertion that “... The definition

of the industrial subsectors appeared for the first time in an administrative decision — not a regulation...”

As you will see, the Secretariat points out that the subsector definition was not made in a regulation. This assertion is unnecessary, and

rather than clarifying any aspect of the information, it leads the reader to

believe that the nonregulation of industry subsectors implies an omission by the Mexican environmental authority. This is beyond the Council instructions to the Secretariat, in the sense that the facts should be

stated so that the reader may form his own conclusions, i.e., the Secretariat’s assertions cannot be inductive or speculative.

Based on the foregoing, I hereby request that the necessary corrections and changes be made so that the factual record is in accordance

with the NAAEC and Council mandate and faithfully reflect the facts

and Mexican legal provisions.

I take this opportunity to send my warmest regards and assurances

of my highest consideration.

COMMENTS OF MEXICO 149
YOURS TRULY

UNIT HEAD

LIC. WILEHALDO CRUZ BRESSANT

cc: Ing. Juan Rafael Elvira Quesada, Secretary of the Environment

and Natural Resources

MPU

150 FACTUAL RECORD: ALCA-IZTAPALAPA II SUBMISSION