New England International & Comparative Law Annual

I. Introduction

The United States is the world's largest producer of hazardous waste.⁽¹⁾ In the early 1990's, the estimate of hazardous waste produced varied anywhere from 60 to 247 million tons.⁽²⁾ This estimate reached its zenith in 1993 with an official Environmental Protection Agency (EPA) figure of 258 million tons.⁽³⁾ This figure constitutes the amount produced by Large Quantity Generators⁽⁴⁾ (LQGs), and LQGs only. EPA regulations require as part of the permitting process that LQGs' supply the EPA with data as to the amounts of hazardous waste produced.⁽⁵⁾

In 1995, over 25 million tons of hazardous waste were disposed of in the United States.⁽⁶⁾ Of this amount, 24 million tons were disposed of by underground injection, and the remaining 1 million tons were disposed of in landfills.⁽⁷⁾ This land total accounted for 12% of the national management total, 72% was disposed of by aqueous treatment.⁽⁸⁾

The huge volume of hazardous waste is quickly filling existing landfills to capacity.⁽⁹⁾ The construction or expansion of storage facilities and landfills has not kept pace with the production of hazardous waste. The failure to construct new facilities or expand existing ones is due in no small measure to the unified local opposition which regulatory agencies face at every step of the approval process.⁽¹⁰⁾ The decreased space in existing approved disposal facilities has contributed to the skyrocketing cost of environmentally safe disposal of hazardous waste.⁽¹¹⁾ Stringent regulation and potentially heavy fines for violations of environmental regulations have had their effect on hazardous waste producers.⁽¹²⁾ Many producers of hazardous waste, seeking alternative disposal means, are turning to exportation of the hazardous waste as an economically viable alternative to domestic disposal.⁽¹³⁾ Frequently, as an alternative to domestic regulation and high costs in the United States, generators of hazardous waste are turning to Mexico.⁽¹⁴⁾

Mexican legislation prohibits the importation of hazardous waste for the "sole" purpose of storage, destruction or disposal.⁽¹⁵⁾ The Mexican legislation, however, contains a "loophole" allowing importation of hazardous waste if used as raw industrial material or for recycling purposes.⁽¹⁶⁾ Often, the recycling facility exists only on paper and is incapable of handling the type and/or quantity of waste, if indeed the facility is capable of handling the waste at all. The Exodus Investigation,⁽¹⁷⁾ a joint local, state and federal effort, highlights the scope of the problem faced by environmental and customs officials at border checkpoints. Without extraordinary cooperation, border officials are incapable of accurate determination of the nature of the substance being shipped to Mexico and the status of the facility destined to receive the shipment.

Additionally, the tonnage of hazardous waste being sent to Mexico is difficult to determine. In 1988, approximately 17,000 tons of hazardous waste were legally sent to Mexico for recycling from the United States.⁽¹⁸⁾ In 1989, the figure had jumped to 27,803 tons.⁽¹⁹⁾ By 1992, the figure was in excess of 35,000 tons⁽²⁰⁾ and the amount has been steadily growing.⁽²¹⁾ This amount represents the quantity that has been legally transported to Mexico; it is impossible to determine the amount shipped illegally⁽²²⁾ or of questionable value. Mexican importers may accept sludge that is 5% zinc for recovery. After recovery, the remaining 95% is designated residual waste and is probably illegally left in Mexico.⁽²³⁾

The Malquiladoras industries⁽²⁴⁾ in Mexico⁽²⁵⁾ are major importers and generators of hazardous waste.⁽²⁶⁾ While Mexico has comprehensive regulations dealing with environmental issues,⁽²⁷⁾ enforcement is often lacking due to an inadequate budget.⁽²⁸⁾

This note describes the rise of United States environmental law and subsequent amendments to domestic environmental law allowing it to be enforced extraterritorially. Next, Mexican domestic law and problems with enforcement are discussed. This is followed by an examination of the United Nations Basel Agreement that acts as the foundation for environmental law with respect to its parties. The Basel Agreement is contrasted with the La Paz Agreement which is a separate United States-Mexican agreement. Finally, the note looks to the future to determine what should be done to deal with the international problem of hazardous waste.

II. Environmental protection agency

A. The Rise of the Environmental Protection Agency

Environmentalism in the United States started decades ago, but environmental law began in the 1970's.⁽²⁹⁾ The creation of the EPA in 1970, along with amendments to the Clean Water Act and the enactment of the Federal Water Pollution Control Act Amendment of 1972, led the fight against pollution and polluters.⁽³⁰⁾ Domestic regulators, conscious of the problem of hazardous waste disposal, now had strict controls for hazardous substances in the United States.⁽³¹⁾ Initially, the EPA chose not to pursue violations of environmental laws as criminal matters. Adherence to the statutes and violation deterrence were predominately implemented through civil action and consent decrees with time schedules to allow compliance.⁽³²⁾ When criminal sanctions were imposed at all, they usually took the form of minimal fines and community service.⁽³³⁾ This attitude toward environmental crime changed in the early 1980's when the American public took the viewpoint that significant violations of environmental law were so serious that they should be properly viewed as criminal acts.⁽³⁴⁾

One means to accomplish this goal was a combined effort, beginning in 1981, by the Environmental Protection Agency and the United States Department of Justice to vigorously prosecute criminal violations.⁽³⁵⁾ The EPA hired professional special investigators who are fully deputized and armed with the authority of a United States marshal,⁽³⁶⁾ to investigate suspect criminal violations. The purposes for enforcement of criminal sanctions against violators of environmental laws are twofold: to deter potential misconduct and to deter other abuses of the environment.⁽³⁷⁾

In the United States, two federal statutes focus on hazardous waste: the Resource Conservation and Recovery Act of 1976 (RCRA)⁽³⁸⁾ and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).⁽³⁹⁾ RCRA designates the EPA as the regulating authority of hazardous waste within the United States,⁽⁴⁰⁾ while CERCLA proscribes remedial action for violations of hazardous waste regulations.⁽⁴¹⁾ From 1976 until 1984, RCRA was a domestic law that did not deal with the exportation of hazardous waste. However in 1984, Congress passed the Hazardous and Solid Waste Amendment to RCRA.⁽⁴²⁾ This amendment proved to be a powerful weapon in the war on exportation of hazardous waste. Under the Amendment, administrative, civil and criminal sanctions may be levied against violators of RCRA's transboundary provisions.⁽⁴³⁾

The EPA is an administrative agency which seeks to deal with violators in an administrative manner. Certain actions on the part of the violator, however, will trigger criminal prosecution.⁽⁴⁴⁾ The RCRA governs hazardous waste through every stage of its life from production to final disposal, so called "cradle to grave" regulation.⁽⁴⁵⁾ Congress enacted RCRA with two primary goals: (1) to promote the protection of human health and the environment, and (2) to conserve valuable materials and energy resources.⁽⁴⁶⁾

RCRA's Hazardous Waste Management Provision establishes a scheme whereby the EPA is able to issue regulations for identifying and listing hazardous waste.⁽⁴⁷⁾ When the RCRA was first enacted in 1976 none of its provisions dealt with the export of hazardous waste. The RCRA applied only to generators of hazardous waste, owner operators of hazardous waste storage and disposal facilities, and transporters of hazardous waste.⁽⁴⁸⁾ The omission of exporters from RCRA regulation was corrected in 1980 with an EPA mandate that required exporters of hazardous waste to comply with the same general requirements as generators.⁽⁴⁹⁾ Exporters of hazardous waste now had to comply with RCRA regulations which criminalized the "knowing":

transportation of hazardous waste to a disposal facility which does not have a permit;⁽⁵⁰⁾ treatment, storage or disposal of hazardous waste without a permit;⁽⁵¹⁾ improper treatment, storage or disposal of hazardous waste with a permit;⁽⁵²⁾ omission of material information from a manifest or making false material statements on a manifest;⁽⁵³⁾ exportation of hazardous waste without properly identifying the material to be exported;⁽⁵⁴⁾ shipment without a proper manifest;⁽⁵⁵⁾ and exportation without proper notification of the importing country.⁽⁵⁶⁾ Penalty for violation of these provisions can be severe. Non-compliance with an existing international agreement between the United States and the receiving (import) country will subject the violator to a fine of up to $50,000 per day of violation and/or imprisonment for up to five years.⁽⁵⁷⁾

Any person who knowingly exports a hazardous material that places another in imminent danger of death or serious bodily harm "shall be subject to a fine of not more than $250,000 or imprisonment for not more than 15 years or both."⁽⁵⁸⁾ If the "person" is a corporation, the fine can be up to one million dollars.⁽⁵⁹⁾ If the person is convicted of a second or subsequent violation of provisions (d) 1-6, then the punishment shall be double the maximum penalty proscribed by law with respect to fine and imprisonment.⁽⁶⁰⁾ For purposes of enforcement, "knowing" in this section is defined as: whether the Defendant is aware of the nature of his conduct,⁽⁶¹⁾ or by circumstance.⁽⁶²⁾ Circumstantial evidence may be used that the defendant took affirmative steps to shield himself from relevant information.⁽⁶³⁾

Additional reporting requirements consistent with the "cradle to grave" concept exist to ensure the hazardous waste reaches the intended destination. EPA regulations enacted pursuant to the statute impose additional requirements and safeguards. Within 90 days of initial shipment, the co-signee at the final destination must send written confirmation to the exporter.⁽⁶⁴⁾ If confirmation is not sent, the exporter is required to file a report of the discrepancy with the EPA.⁽⁶⁵⁾

As discussed above,⁽⁶⁶⁾ the main goal of the EPA is to induce compliance with EPA regulations. To that end the EPA administrator determines when to proceed with either a criminal action or a civil action. If the violation is determined to be civil in nature, the penalty can be up to $25,000 per violation.⁽⁶⁷⁾ Initially, the violator is issued an Order of Compliance which delineates the corrective actions that needs to be taken. If a violator fails to take corrective action after being informed of non-compliance with the statute, the administrator may suspend or revoke any or all permits that have been issued to the violator.⁽⁶⁸⁾

As indicated above,⁽⁶⁹⁾ the RCRA statutes have been designed to track hazardous waste from "cradle to grave." The required manifests track the waste from the generator, through the transporters, and to its final disposition.⁽⁷⁰⁾ When the point of final disposition is in a foreign country additional regulations are enforced.⁽⁷¹⁾ In such a case documentation must accompany the waste from generation to final destination.⁽⁷²⁾ The EPA must be notified in advance of the transporter's intent to export the shipment.⁽⁷³⁾ The EPA must then contact the United States Department of State which asks the destination country for consent to accept the waste.⁽⁷⁴⁾ If acceptance is granted the EPA will forward the consent to the exporter. The exporter may then ship the waste in accordance with any special conditions of requirements attached to the consent certificate.⁽⁷⁵⁾ Finally, the EPA may withhold its consent and not allow export if the receiving country or facility cannot dispose of the waste in an environmentally sound manner.⁽⁷⁶⁾ RCRA provides EPA with the most comprehensive means of regulating waste. While RCRA governs the conduct of producers, shippers, exporters and disposers of waste, it does not provide remedial action against violators.

C. The Comprehensive Environmental Response, Compensation, and Liability Act of 1988

Congress enacted CERCLA as a response to the problems associated with environmental and health hazards at toxic waste sites across the United States. CERCLA provides liability for response and clean up costs if there is a release or threatened release of hazardous substances.⁽⁷⁷⁾ Yet, CERCLA liability has led to an unintended situation where those seeking to avoid CERCLA's harsh penalties ship their hazardous waste out of the country to escape liability.⁽⁷⁸⁾ CERCLA provides liability for response and clean up costs if there is a release or threatened release of hazardous substances.⁽⁷⁹⁾ Liability provisions of CERCLA are far reaching, including present and past owners or operators of disposal facilities, brokers or acceptors of any such waste.⁽⁸⁰⁾ Liability costs under CERCLA can be staggering⁽⁸¹⁾ and defenses limited.⁽⁸²⁾

Producers, transporters, storage and disposal facilities are faced with an array of federal legislation designed to make environmental crimes a serious issue for the violator. The fact that laws are so stringent and penalties for violation so high in the United States may actually encourage exporters to ship their waste to Mexico to avoid compliance with RCRA regulations and CERCLA penalties.⁽⁸³⁾

III. Mexico Fights Back

A. The General Law

The Mexican counterpart to RCRA is the General Law on Ecological Equilibrium and Environmental Protection (General Law). The Mexican government enacted the General Law in 1988 with the purpose of providing a detailed and comprehensive framework to govern environmental issues.⁽⁸⁴⁾ The law superceded the former Federal Law for the Protection of the Environment (Federal Law).⁽⁸⁵⁾ Critics of the former Federal Law and its weak environmental policy were encouraged when Manuel Gamacho Solis was named Secretary General of the ruling party in Mexico.⁽⁸⁶⁾ He had previously held the position of Ecology Secretary and was instrumental in creating and implementing the new General Law.⁽⁸⁷⁾

Article 153 of the General Law allows importation of hazardous waste⁽⁸⁸⁾ for the limited purposes of treatment, recycling or reuse.⁽⁸⁹⁾ The Statute absolutely prohibits the importation of hazardous waste solely⁽⁹⁰⁾ for the purpose of final disposal or storage.⁽⁹¹⁾ The General Law metes out both civil and criminal penalties for violations. The most important aspect of the General Law is that it criminalizes the unauthorized import of hazardous substances. Violations which endanger the public health or severely damage ecosystems are treated as criminal offenses.⁽⁹²⁾ Additionally, civil violations of the General Law allow authorities to:

(1) Revoke authorization to import hazardous waste into the country.

(2) Impose monetary penalties if the imported substance presents a higher risk than that disclosed by the applicant; or the import operation does not comply with the requirements set forth in the authorization to import; or the data contained in the application is false.⁽⁹³⁾

While the General Law is a vast improvement over the old Federal Law, critics complain that the law is confusing. Part of the confusion is due to the heavy load of paperwork required by the General Law.⁽⁹⁴⁾ Companies that do business on both sides of the border are expected to comply with the paperwork requirements of both countries. Yet, less than 25% of the industries that are required by the General Law to file monthly reports actually comply with these requirements.⁽⁹⁵⁾ Environmental officials in Mexico are faced with a discouraging situation; there is need for both economic growth and environmental enforcement.

As a developing country, economic growth has often thwarted the will for enforcement. Aggressive enforcement of environmental regulations is not encouraged by those seeking economic growth for, in doing so, economic expansion would be hindered.⁽⁹⁶⁾ When faced with the economic realities that plague a developing country, particularly unemployment and inflation, those concerns often eclipse the mission of environmental regulation.⁽⁹⁷⁾ In many instances, disposal consists of nothing more than dumping the hazardous waste into a river.⁽⁹⁸⁾

B. Mexican Environmental Enforcement under the Secretariat of Urban

Development and Ecology

The Mexican Agency charged with enforcement of the General Law is the Secretariat of Urban Development and Ecology (SEDUE).⁽⁹⁹⁾ SEDUE is a highly centralized bureaucratic agency that has its headquarters in Mexico City. Although highly centralized, SEDUE lacks the manpower, training, and funding to effectively enforce Mexico's General Laws.⁽¹⁰⁰⁾ This centralization often results in policy decisions being made without any input from those delegated to enforce the policy. The RCRA "cradle to grave" concept is not employed by SEDUE, instead SEDUE individually authorizes each generator, handler, and transporter of hazardous waste.⁽¹⁰¹⁾ The generator is given the responsibility of ensuring the agents with which he does business are properly authorized.⁽¹⁰²⁾ While the RCRA regulatory scheme focuses upon the waste itself, the General Law scheme focuses on handlers of waste. As a result, this plan may allow the waste to become "lost."⁽¹⁰³⁾

In contrast to the United States "cradle to grave" regulatory system, the Mexican regulatory scheme requires the generator to take more responsibility, including verifying whether or not transporters and treatment, storage and disposal facilities (TSDs) are properly authorized and licensed. The focus upon the generator rather than the waste itself allows the Mexican system to be readily susceptible to inefficiency and possible corruption.⁽¹⁰⁴⁾

As discussed above,⁽¹⁰⁵⁾ hazardous waste generated in the United States can legally be imported into Mexico for recycling purposes. Such importation creates a legal loophole whereby exporters can get rid of their hazardous waste. Once the hazardous waste is brought into Mexico and "recycled," there is no statutory guidance as to what should happen to the waste.⁽¹⁰⁶⁾ In particular, there is no obligation on the recycler to return the recycled waste to the country of origin.⁽¹⁰⁷⁾ The only requirement is that the waste be disposed of in an authorized way, such as destruction, donation to a non-profit or educational organization for resale or "nationalization" into Mexican territory.⁽¹⁰⁸⁾

This extension of the recycling loophole allows the exporting hazardous waste producer to pay the recycling fee and forget about the waste. As far as the exporter is concerned, the waste is now disposed of and any materials produced as byproducts of the recycling process are Mexico's problem.⁽¹⁰⁹⁾ The situation is aggravated by the pervasive non-compliance with Mexico's General Laws. The typical Mexican recycling company has little reason to comply with the General Laws since they are not enforced on a regular basis.⁽¹¹⁰⁾ While the fine is substantial if the violator is caught, the lack of enforcement makes the risk of illegal disposal acceptable to many.⁽¹¹¹⁾

The purpose of the current Mexican Legislation is to deter violators, including international haulers, local sham recyclers, and criminal operations.⁽¹¹²⁾ Lack of resources has ensured that enforcement efforts will be directed at only the most egregious of violators. This lack of comprehensive enforcement has provoked commentators and environmentalists alike to complain that the legislation, while impressive, has only had a superficial impact upon the environment.⁽¹¹³⁾

Environmental priorities in a developing country like Mexico are not necessarily the same as in a developed country. The funding available to the federal and local governments in Mexico for the resolution of pollution problems must go "to maintaining and providing basic necessities such as clean drinking water, sewerage treatment, solid waste disposal and rodent control."⁽¹¹⁴⁾ The regulations (General Laws) are in place, but enforcement has been constrained by the above considerations of limited enforcement funds and other priorities. The real value in the Mexican legislation lies in the symbolism it has created.⁽¹¹⁵⁾ Mexico has taken a solid stand on the environment and intends to strictly control hazardous waste. It remains to be seen if the regulations can be enforced in the manner which the drafters envisioned.

IV. International Agreements Regulating the Trade In Hazardous Waste

A. The Bilateral Agreement Between Mexico and the United States Governing the Trade in Hazardous Waste

In addition to the above domestic legislation regarding hazardous waste, the United States and Mexico have entered into several international agreements and treaties relating to other environmental issues. For over a century, environmental issues affecting the border area have been a matter of mutual concern.⁽¹¹⁶⁾ In 1978, the EPA and SEDUE entered into a Memorandum of Understanding (MOU) that commits the nations to "a cooperative effort to resolve environmental problems of mutual concern in the border area."⁽¹¹⁷⁾ That MOU was superseded by the La Paz Agreement (La Paz) which took effect in 1984.⁽¹¹⁸⁾

The objectives of the La Paz Agreement are: first, to "establish a basis for cooperation for the protection, improvement and consideration of the environment;"⁽¹¹⁹⁾ second, to "agree on necessary measures to prevent and control pollution;"⁽¹²⁰⁾ and third, to provide a "framework for development of a system of notification for emergency situations."⁽¹²¹⁾ The pertinent parts of the La Paz Agreement are contained in Annex III which addresses transboundary shipments of hazardous waste and other substances.⁽¹²²⁾

Annex III provides:

1. Forty five days prior to shipment the designated authority in the exporting country must notify designated authority in importing country of the impending shipment.

2. The notification must include: identity of exporter, type and quantity of waste, the period of time over which the waste will be exported and the point of entry.

3. Upon notification the import countries designated authority has 45 days to consent or object to the shipment.

4. If the designated authority orders the shipment expelled from the import country for any reason the export country must readmit the shipment.

5. Both countries will embark upon a program of spot checking transboundary shipments⁽¹²³⁾ to guarantee the shipments conform with respective domestic laws and annex requirements.⁽¹²⁴⁾

Due to budget restraints and other reasons set out above, Mexican officials have not been vigorously enforcing the Agreement. The same is often true on the United States side of the border.⁽¹²⁵⁾ The United States Customs Service was expected to augment the EPA at border

checkpoints.⁽¹²⁶⁾ Yet, in many instances, customs officials do not have the equipment at far flung border checkpoints to quickly analyze a complex chemical compound and determine if it is being shipped illegally or is actually a legally shipped substance.⁽¹²⁷⁾ Another problem is the focus of EPA and Customs officials along the United States-Mexico border. Southbound traffic is not always subject to inspection.⁽¹²⁸⁾ Customs officials at the border generally focus their energy on north bound traffic in search for illegal immigrants, drugs and weapons entering the United States from Mexico.⁽¹²⁹⁾ The same can be said for EPA officials at the border whose primary concern is with the identification of materials entering the United States, not leaving it.⁽¹³⁰⁾ Generally, enforcement of the La Paz Agreement is lacking. An alternative method of enforcement may be application of the United Nation's Basel Convention (Basel Convention) to which both the United States and Mexico are parties.

B. The Basel Convention: International Regulation of Hazardous Waste

In July 1987, the Governing Council of the United Nations authorized a working group which seeks to ensure the environmentally sound transboundary movement and disposal of hazardous waste.⁽¹³¹⁾ The result of this initiative, represents the latest attempt at international cooperation in the field of hazardous waste management.⁽¹³²⁾

One of the primary difficulties any producer, shipper or disposer of hazardous waste must contend with is defining what constitutes hazardous waste. Comparison of the RCRA definition⁽¹³³⁾ with the General Laws definition⁽¹³⁴⁾ and the Basel definition⁽¹³⁵⁾ illustrates the difficulty faced by those that must conform to the regulations regarding hazardous waste. Under Basel, the signatory parties may prohibit specific waste from entering their country.⁽¹³⁶⁾ If the exporting country has reason to believe the importing country cannot dispose of the hazardous waste in an environmentally sound manner, then the exporting country has a duty to prohibit export.⁽¹³⁷⁾ The exporting and importing countries may authorize the movement of hazardous waste when any one of the following conditions are met: (i) the exporting state lacks the necessary facilities, technological capacity or suitable disposal sites to dispose of the waste in an environmentally sound and efficient manner; (ii) when the importing country requests the waste as a raw material for recycling; or (iii) other mutually agreeable conditions are met.⁽¹³⁸⁾

The illegal trafficking in hazardous waste and other waste is a criminal violation under the treaty.⁽¹³⁹⁾ Additionally, if a shipment is determined to be illegal as the result of conduct on the part of the exporting nation then the exporting nation is required to re-accept the shipment and return it to its point of origin.⁽¹⁴⁰⁾

The Basel Convention does not apply to transboundary shipments of hazardous waste between nations which already have a bilateral agreement in place, provided such agreement is in compliance with environmentally sound management policies regarding hazardous waste as defined by the Basel Convention.⁽¹⁴¹⁾ The La Paz Agreement and its Annex III were specifically enacted to address transboundary movements of hazardous waste between the United States and Mexico. By the terms of the Basel Convention, the La Paz Agreement will preempt Basel as long as La Paz ensures environmentally sound management of hazardous waste. Should the La Paz Agreement be determined not to ensure the environmentally sound management of hazardous waste, then the Basel Convention would apply.⁽¹⁴²⁾

If the Basel Convention were controlling, United States exporters, in addition to having to obtain Mexican consent for the shipment, would also have to obtain EPA's consent to export. EPA's consent would be granted only if the disposal facility was operated in an environmentally sound manner.⁽¹⁴³⁾ Application of the Basel Convention in lieu of the La Paz Agreement would allow the United States to take a more proactive, hands-on approach to the export of hazardous waste. Conceivably, a listing system of recognized facilities could be developed thus helping to ensure compliance with regulations.

Critics of Basel contend that the Basel Convention contains a loophole that can place the import or export country in the hazardous waste business.⁽¹⁴⁴⁾ Article 9 requires the import/export state to re-import an illegal shipment and ensure that it is returned to the source of origin.⁽¹⁴⁵⁾ Where responsibility cannot be assigned, mutual cooperation is required to ensure environmentally sound disposal.⁽¹⁴⁶⁾

When responsibility cannot be assigned or the originator of the waste cannot be located, a loophole occurs as the importing state must then dispose of the hazardous waste itself within thirty days.⁽¹⁴⁷⁾ Thus, the exporter has succeeded in the task that he initially sought to accomplish. Namely, getting rid of the hazardous waste in a manner that was as economical and regulation free as possible. Initially, the stated purpose of the Basel Convention was to control and limit the transboundary movement of hazardous waste. It is clear that the existing regulations (Art. 9 § (2)(a, b), Art. 10) may unintentionally encourage illegal shipments of hazardous waste.

V. Final Considerations

Environmental awareness and respect for the environment are firmly in place in the United States, as evidenced by the expansion and enhancement of existing law to reflect concern over abuse of the environment. Criminal prosecutions await those who show a callous disregard for the environment. In its General Laws, Mexico too has enacted legislation making violations of environmental regulations a serious crime. Internationally, the Basel Convention adds regulations between import and export countries where a bilateral agreement is lacking.

United States environmental law, including RCRA and CERCLA, imposes severe penalties for violators, leading many producers and shippers of hazardous waste to seek an alternative means of disposal. Frequently, the alternative means of disposal has been shipping the waste to Mexico thereby avoiding the stringent regulations and severe, possibly criminal, penalties that would apply were the exporter to dispose of the waste in the United States.

EPA and U.S. Customs must coordinate their effort to diminish the flow of hazardous waste shipments into Mexico. All too often, the EPA officials at the border are more interested in what comes into the country than what goes out. This is true for customs as well, as their primary focus is on traffic entering the United States in their ongoing battle against drugs, guns, and aliens. Frequently, outbound traffic is either not inspected nor given a cursory inspection at best. Limited funding is the root of the problem.

In order to adequately address the hazardous waste traffic issue, cooperation between the United States and Mexico is crucial. Without cooperation there is no means of effectively monitoring transboundary traffic. To that end, the EPA and its Mexican counterpart, SEDUE, have entered into an agreement to help ensure border cooperation.⁽¹⁴⁸⁾

As the United States and Mexico begin to effectively police trans-boundary shipments of hazardous waste, producers who violate regulations will find themselves facing criminal prosecution, possible jail sentences and substantial fines. Producers will find themselves with only two possibilities, either pay ever increasing disposal costs or reduce waste⁽¹⁴⁹⁾ through recycling efforts and more efficient processing methods.

Earl M. Sheppard

1.See Barbara Scramstad, Comment, Transboundary Movement of Hazardous Waste from the United States to Mexico, 4 Transnat'l Law. 253, 255 (1991)(citing Frontline: Global Dumping Ground (PBS television broadcast, Oct. 1990)).

2. See id. at 255.

3.See The National Biennial RCRA Hazardous Waste Report, Executive Summary, Aug. 1997 at ES-3 (visited Oct. 4, 1998) <http://www.epa.gov/epaoswer/ hazwaste/data/>(based on 1995 data, biennial reporting does not allow for up to date data generation).

4. See id. A generator of 1000 kg (2,200) lb. or more of RCRA defined hazardous waste in a calendar month. This figure of 258 million tons is somewhat artificial in that the EPA figures do not reflect hazardous waste produced by non Large Quantity Generators. See id.

5. The Resource Conservation and Recovery Act (RCRA) of 1976 42 U.S.C. §§ 6901-87 authorizes the EPA to regulate hazardous waste. 42 U.S.C. § 6928 (d)(1), also authorizes criminal penalties for failure to file required reports.

6.The National Biennial RCRA Hazardous Waste Report. Executive Summary, August 1997supra note 3, at ES-5.

7.See id. The amount of hazardous waste disposed of by underground injection has remained fairly constant at 23 million tons in the 1993 Report and 24 million tons in the 1995 Report. Landfill disposal was 1.7 million tons in the 1993 Report and 2 million tons in the 1995 Report. Biennial reports are accessible at EPA web site. See id.

8.See id. Aqueous treatment is a water based treatment process whereby the hazardous waste is eventually rendered environmentally safe and discharged into rivers, streams, harbors and other bodies of water. See id.

9.See Scramstad,supra note 1, at 253.

10.See Adam L. Moskowitz, Comment, Criminal Environmental Law: Stopping the Flow of Hazardous Waste to Mexico, 22 Cal. W. Int'l L. J. 159,160 (1992). As of July 1997, the RCRA Permit Policy Compendium is a 13 volume set of reference documents for RCRA hazardous waste permitting policies and procedures. Internet copies are available at EPA web site: <http://www.epa.gov/epaowser/hazwaste/permit/compend.htm>.

11.See id. at 160.

12.See Luis R. Vera-Morales, Dumping in the International Backyard. Exportation of Hazardous Wastes to Mexico, 7 Tul. Envtl. L.J. 353, 354 (1994). Legal domestic disposal of a ton of highly toxic waste can cost as much as $2,500. Less hazardous waste can cost up to $350 per ton for legal disposal. Illegally flushing down the drain costs nothing.See id.

13.See id. at 355.

14.See id.

15. Ley General dae Equilibrio Ecologico y la Protecion al Ambiente [The General Law on Ecological Equilibrium and Environmental Protection], (1989) [hereinafter General Law]. The General Law absolutely prohibits the importation of hazardous waste into Mexico solely for the purpose of final disposal or storage. See id.

16.See Vera-Morales, supra note 12, at 381.

17.See Earl E. Devaney, A United States Perspective on Transboundary Investigations: Recent Cases and Essential Strategies for Interdiction of International Environmental Crime, 11 No. 5 NAAG Nat'l Envtl. Enforcement J. 26, 28 (National Association of Attorneys General). The Exodus Investigation was a surprise inspection upon a freight train destined for Mexico at the Laredo, Texas Union Pacific Railroad terminal by members of the Texas Environmental Task Force. The task force consisted of agents from the EPA, Texas Natural Resource Conservation Commission, U.S. Customs, the Federal Railroad Administration, the Department of Transportation, the Border Patrol, the Texas Water Commission, and local police, fire and other officials. On the train they found one hundred and twenty seven 55 gallon drums of apparent hazardous waste. The drums were not identified as containing hazardous waste and the manifests and Mexican acknowledgment of consent as required by Mexican regulations had not been filled out. Chemical analysis of 44 of the drums revealed that the substance was extraordinarily toxic and could not be recycled by any feasible means. Subsequent investigation by Mexican authorities revealed the "recycling" facility was not in operation and had been closed down four months earlier for repeated violations of Mexican environmental law. See id.

18.See Scramstad, supra note 1, at 256.

19.See id.

20.See Vera-Morales, supra note 12, at 356, (citing as a source of this information the head of the Department of Hazardous Wastes within the General Direction for the Control and Prevention of Pollution within the then existing Ministry of Urban Development and Ecology).

21.See The National Biennial RCRA Hazardous Waste Report, Executive Summary, August, 1997, supra note 3. Two of the largest exporting states of hazardous waste are California at 1.1 million tons and Texas at 240 thousand tons. Export of waste is defined as waste destined for a different state than that in which it was produced. EPA figures do not reflect exports to other nations. See id.

22.See Scramstad, supra note 1, at 257.

23.See id.

24.See Elizabeth R. Rose, Transboundary Harm: Hazardous Waste Management Problems and Mexico's Maquiladoras, 23 Int'l Law. 223, 224 (1989). The Malquiladoras companies (approximately 700 in 1989) are mostly American industries that have relocated their assembly divisions to the Mexican side of the United States/Mexican border area. These companies in many instances take advantage of lax environmental enforcement by Mexican authorities (see discussion to follow) and low Mexican wages. The general scheme is to import duty free raw materials or unassembled components from the United States and export the finished product back to the United States. United States Customs and Internal Revenue Codes only require duty to be paid on the value added to the product in Mexico not to the value of the entire product when re-imported into the United States thus providing a strong financial incentive for American industry to locate across the border.See id.

25. The Malquiladoras web site, enticing relocation of American industry, claims the following. There are presently 2,100 operating Malquiladora plants (a 300% increase since 1989). Among these plants are U.S. industrial giants AT&T, Ford Motor, General Motors, Chrysler, General Electric, Xerox, Zenith, Johnson & Johnson, Allied Signal, IBM, ITT, PepsiCo. The average take home wage for a worker is $3.20/day. See The Malquiladoras (visited Oct. 19, 1998) <http://www.alfea.it/coordns/work/industria/malquiladoras.html> For companies that chose not to disclose there activities in this industry there is a "shelter" contract available that basically allows the United States corporation to hide its identity behind a "straw" Mexican company. In the Mexican State of Chihuahua, 30% of Malquiladoras industries are sheltered. See <http://www.edd.state.nu.us./BORDER/CHIHUAHUA/econ.htm>, advertising the above services.

26.See U.S. Water News Online, November 1996 (visited Oct. 1, 1998) <http://www.uswaternews.com/archive/96/internat/mexfre.html>. The increase in the number of Malquiladoras industries has turned the border area into an environmental disaster. See id.

27.See General Laws, supra note 15, art. III at 355.

28.See Bruce Zagaris, International Criminal and Enforcement Cooperation in the Americas in the Wake of Integration: a Post NAFTA Transition Period Analysis with Special Attention to Investing in Mexico, 3 Sw. J.L. & Trade Am.1, 31 ( 1996). The Mexican budget for environmental enforcement along the 3,000 mile Mexican/United States border area was $6.33 million. See id.

29.See Moskowitz, supra note 10, at 161. 35 Fed. Reg. 15.623 (1970).

30.See id. 42 U.S.C. §§ 7401-7642 and 33 U.S.C. §§ 1251-1376.

31.See Lillian M. Pinzon, Note, Criminalization of the Transboundary Movement of Hazardous Waste and the Effect on Corporations, 7 DePaul Bus. L.J. 173, 189 (1994).

32.See Moskowitz, supra note 10, at 162, citing Henry Habicht, II, The Federal Perspective on Environmental Criminal Enforcement: How to Remain on the Civil Side, 17 Envtl. L. Rep. 10,478 (1987).

33.See id. at 162. See also Richard Thornburgh, Criminal Enforcement of Environmental Laws--A National Priority, 59 Geo. Wash. L. Rev. 775, 776 (1991). It is often easier for a violator to dump industrial waste illegally and if caught pay the fine than it is to properly process the waste for disposal.See id.

34.See Devaney, supra note 17, at 26. Earl E. Devaney, Director of Criminal Enforcement, Forensics and Training in the Office of Enforcement and Compliance Assurance, EPA, delivered this address to the National Association of Attorneys General at the International Conference on Environmental Compliance held April 22-26, 1996.

35.See Moskowitz, supra note 10, at 162. The EPA created the Office of Criminal Enforcement to work with the newly created Department of Justice, Environmental Crimes Unit. See Thornburgh, supra note 33. The unit prosecuted 40 cases in its first year and received 40 convictions. See id.

36.See id. at 162. Investigators from the Office of Criminal Enforcement have the authority of a United States Marshal.See id.

37.See Moskowitz, supra note 10, at 163, citing Starr, Countering Environmental Crimes, 13 B.C.J. of Envtl. Aff. 379, (1986). The main goal of prosecution is deterrence. Three times as many individuals as corporations have been prosecuted. Corporations cannot go to jail and can pass a fine along to their customers. Individuals personally feel the effect of prosecution in a fine, possible jail time and a criminal record.See id.

38.See Resource and Recovery Act of 1975, 42 U.S.C. § 6901 et seq. (1976).

39.See Vera-Morales, supra note 12, at 357.

40.See Scramstad, supra note 1, at 265.

41.See Vera-Morales, supra note 12, at 361.

42.See 42 U.S.C. §§ 6921-6938 (1984).

43.See Moskowitz, supra note 10, at 164.

44.See id. at 163. Triggers for criminal prosecution include; a knowing or intentional transgression; the harm from the violation is large; a large economic gain for the violator and the violations are aggravated or extensively repeated. Conversely, If a violator is diligent in reporting and quickly discloses a violation then criminal prosecution is not likely. The EPA seeks cooperation and voluntary compliance. Many companies make the mistake of trying to cover-up a violation instead of reporting it. This action virtually guarantees felony indictment and prosecution.See id.

45. Vera-Morales supra note 12, at 358. "Cradle to grave" regulation does exactly as the phrase implies, governing the life cycle of the waste at every stage of its existence. Mr. Luis R. Vera-Morales is Associate Head of Environmental Department, Santamarina y Steta, Mexico City, Mexico, LL.M. Tulane Univ. Law School (1993). In his article, Mr. Vera-Morales presents the issue of trans-border shipments of hazardous waste from the Mexican point of view. See id.

46.See Moskowitz, supra note 10, at 163.

47.See 42 U.S.C.A. § 6903 (5). The term "hazardous waste" means a solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious character may: See id.

(a) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible illness; or

(b) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of or otherwise managed.

48. Moskowitz, supra note 10, at 164.

49.See id. 45 Fed. Reg. 12724 (1980).

50. 42 U.S.C.A. §692 (d)(1) (1988).

51.See id. § 6928(d)(2)(A). In the case of a person who knowingly treats, stores, or disposes of any hazardous waste without a permit, the prosecution need only show the defendant have a general awareness that he was committing acts proscribed by law. United States v. Laughlin, 10 F.3d 961 (1993). The Defendant was dumping creosote sludge upon the ground. See id.

52.Id. § 6928(d)(2)(B). RCRA penalties cover employees as well as owners and operators of a facility. Employees will be liable if they knew or should have known that the activity was not in regulatory compliance. United States v. Johnson & Towers, 741 F.2d 662 (1984) (employees dumping hazardous waste into a trench that led to a tributary of the Delaware River).

53.Id. § 6928(d)(3).

54.Id. § 6928(d)(4).

55.Id. § 6928(d)(5).

56. 42 U.S.C.A. § 6928(d)(6).

57.Id. § 6928(d)(7)(B).

58.Id. § 6928(e). Violation of a corresponding statute in Nigeria is punishable by death.

59.Id.

60.Id. § 6928(d)(7)(B), amended by Pub. L. 99-499 § 205(I)(4).

61.Id. § 6928(f)(1)(A).

62. 42 U.S.C.A. § 6928(f)(1)(B). United States v. Hayes, 786 F.2d 1499 (11th Cir. 1986). Given the high cost of disposal, a very low price for hazardous waste disposal should alert the hazardous waste producer of possible impropriety. See id.

63.See United States v. Protex Indus., 874 F.2d 740 (10th Cir. 1989). Corporate upper management could not shield liability, claiming ignorance of situation if should have reasonably been aware. The standard employed is "reasonable expectation" rather than "substantial certainty" that conduct in question would cause death or serious bodily injury. The defendant relied upon the § 6928(f)(1)(C); "A person's state of mind is knowing, with respect to--(C) a result of his conduct, if he is aware or believes that his conduct is substantially certain to cause danger of death of serious bodily injury." Id. The court reasoned that businessmen in the industry should know the nature of their business. See id.

64.See 40 CFR § 262.55(b) (1992).

65.See id.

66.See Moskowitz, supra note 10, at 162, citing Henry Habicht, II, The Federal Perspective on Environmental Criminal Enforcement: How to Remain on the Civil Side, 17 Envtl. L. Rep. 10,478 (1987).

67. 42 U.S.C.A § 6928(g). Violation is per calendar day and each day in violation is treated as a separate violation. See id.

68.See id. § 6928(c)(3) (1990). This includes revocation of permits issued by state agencies. See id.

69.See Vera-Morales, supra note 12; see also supra text accompanying note 45.

70.See Vera-Morales, supra note 12, at 358.

71. 42 U.S.C. A. § 6938 (1987), amended by Hazardous and Solid Waste Amendment Act of 1984, Pub. L. 98-616, § 245(a).

72.

See id. § 6938 (a)(1)(C).

73.See id. § 6938(c). At least 60 days in advance of the shipment the notification to the EPA must include:

(1)the name and address of the exporter;

(2)the type and estimated quantity of waste;

(3)the frequency and period of time over which the waste will be shipped;

(4)point of Entry;

(5)the manner in which the waste will be shipped, stored and transported; and

(6)the name and address of the disposal facility.

This is the most important requirement as, it allows the EPA to determine the fitness of the receiving facility. This was not a statutory requirement at the time of the Exodus Investigation. See supra text accompanying note 17. In Exodus, the disposal facility had been closed down four months earlier by Mexican authorities. See id.

74.See id. § 6938 (d).

75.See id. § 6938 (a)(1)(c).

76.See id. § 6938(C)(6). The EPA keeps a listing of acceptable disposal facilities and will deny export licensing to a facility that is not approved by the EPA. See Devaney, supra note 17, for a discussion on EPA investigative techniques.

77.See 42 U.S.C.A. § 9607(a)(4) (1998).

78.See Vera-Morales, supra note 12, at 361.

79.See 42 U.S.C.A. § 9607(a)(4) (1998).

80.See id.

81.See id. § 9607(a)(1)(C). A release into a navigable water can result in penalties up to $8 million. Up to $50 million in punitive damages may also be incurred. Under § 9607(a)(2). "[i]f responsibility is determined and the discharge is due to willful misconduct or willful negligence, then an owner/operator can be held liable for all response and clean up costs plus treble damages."

82.Id. § 9607(b). Defenses to CERCLA are limited, they include: acts of war, acts of God or an unforeseeable intervening act by a third party. See id.

83.See United States v. Shell Oil, 841 F.Supp. 962 (C.D. Cal. 1993). The defendant was found liable under CERCLA for dumping byproducts of aviation fuel into an unlined sludge pit during World War II. The defendant claimed implied government approval, given the large amount of aviation fuel defendant was required to produce. In the alternative, defendant argued the act of war defense. See id.

84.See id. at 362.

85.See Moskowitz,supra note 10, at 178. Under the Federal Law, the closest thing to jail time for an environmental crime was 36 hours administrative arrest for failure to pay a fine.

See id.

86.See id.

87.See id.

88.See General Law,supra note 15. § XXVII. Hazardous waste is waste, whatever its physical state, which may represent a risk for the ecological equilibrium, or the environment, due to its corrosive, toxic, poisonous, reactive, flammable, biologically infectious or irritant characteristics.

89.See id. at art. 153

90. Under the General Law, hazardous materials cannot be imported solely for deposit, storage, or containment. If this provision were vigorously enforced, it would be a major obstacle for exporters from the United States. Exporters can circumvent this "solely" requirement by resorting to the recycling loophole. This loophole allows importation of hazardous waste under the guise that the material will be reclaimed and recycled. See id.

91.See id. art 153, §§ II & III.

92.See Moskowitz, supra note 10, at 177. Conviction of a criminal violation can yield a prison sentence ranging from 3 months to 6 years as well as fines between 100 and 10,000 times the daily wage. The daily wage is in the neighborhood of $3.20/day See supra text accompanying note 25. If the environmental crime endangers a highly populated area, a jail sentence up to 9 years and/or a fine of 20,000 the daily wage may be imposed. See id.

93. Vera-Morales, supra note 12, at 363.

94.See Moskowitz, supra note 10, at 179, (citing Mexican Environmental Rules Confusing, 12 Int'l Envtl. Rep. 549 (1989)). A company reported that when it asked an environmental official for guidance on what to do with its waste the official told them it was as safe distilled water. It was later discovered that the substance contained Freon a known toxic chemical.See id.

95.See id. at 179.

96.See id.

97.See Scramstad, supra note 1, at 275.

98.See James A. Funt, Comment, The North American Free Trade Agreement and the Integrated Environmental Border Plan: Feasible Solutions to U.S.-Mexico Border Pollution? 12 Temp. Envtl. L. & Tech. J. 77, 100 (1993). The New River flows north from Baja California (Mexico) into California. In addition to 20 million gallons of raw, untreated sewerage dumped daily into the river, it also contains significant amounts of chloroform, benzene, zylene, PCBs and pesticides, including DDT. The first reported case of anencephaly, a birth defect where the brain fails to fully develop occurred in Cameron County California in 1986, a few years after the Quimica Lour chemical plant became operational. For articles discussing abnormally high birth defect rates along the Mexican/United States border, see , Elizabeth A. Ellis, Bordering on Disaster: A New Attempt to Control the Transboundary Effects of Maquiladora Pollution, 30 Val. U. L. Rev. 621 (1996); and Kelly L. Reblin, Comment, NAFTA and the Environment: Dealing with Abnormally High Birth Defect Rates Among Children of Texas-Mexican Border Towns, 27 St. Mary's L.J. 929 (1996).See also R.A. Sanchez, Water Quality Problems in Nogales, Sonora, Environmental Health Perspective (EHP) Supplement (1995). Abstract compounds found in municipal sewerage system consistent with hazardous waste generated by local Maquiladora industries. Treatment systems are not designed to handle this type of waste that includes industrial solvents.

99.See Scramstad, supra note 1, at 271.

100.See Zagaris, supra note 28, at 23. The SEDUE budget along the 3000 mile U.S./Mexican border was $6.33 million in 1992.See id.

101.See Scramstad, supra note 1, at 275.

102.See id.

103.See id.

104.See Rose, supra note 24, at 223. In a particularly egregious dumping scam, Mexican officials prosecuted and jailed 75 year old American, Clarence Nugent, who was convicted for illegally dumping over 800 barrels of hazardous waste at his mercury recovery business. He also provided the contaminated empty barrels for drinking water storage. He dismissed the allegations claiming that he was being victimized for failure to payoff Mexican officials. See id.

105. General Law, supra note 15.

106.See Vera-Morales, supra note 12, at 381.

107.See Funt, supra note 98, at 100. See also, supra text accompanying notes 37 & 43. It costs $2,000 to recycle a barrel of hazardous waste in the United States and $200 for the same barrel in Mexico. Only 20 of an estimated 1000 Maquiladoras industries shipped hazardous waste back to the United States. See id.

108.See Vera-Morales, supra note 12, at 381.

109.See id.

110.See id.

111.See Moskowitz, supra note 10, at 179, (citing Mexican Environmentalists Want International Environmental Court, 13 Int'l Envtl. Rep. 462 (1990)). A spokesperson for the Federal Ecology Secretariat stated, regarding hazardous waste, that "tons. . . are thrown in municipal dumps, in . . .empty lots, rivers and pastures on a daily basis."Id.

112. Vera-Morales, supra note 12, at 381.

113.See id.

114. Rose, supra note 24, at 240. See also U.S. Water News Online, supra note 26. Between 1980 and 1990, Tijuana, Mexico had a 61% increase in population. Water consumption increased from 106,350 gallons per day in 1987 to 4.1 million gallons per day in 1994. Situations such as this force Mexican officials to direct environmental dollars towards the basic necessities of potable water and sanitary sewerage treatment facilities.

115.See Scramstad, supra note 1, at 276.

116.See Vera-Morales, supra note 12, at 365. The problems of the border area were first addressed in a United States/Mexico Treaty of 1884. That treaty authorized the creation of the International Transboundary Commission. The Commission comprised of representatives of both countries. The mission of the Commission was to resolve issues between the two countries regarding boundary waters. The Treaty was replaced in 1944 by The Treaty Between the United States and Mexico on the Utilization of the Colorado and Tijuana Rivers and the Rio Grande. This treaty established the International Boundary and Water Commission (IBWC). This commission is charged with water quality issues in the border area. The EPA is given jurisdiction by RCRA. See id.

117.See id. at 366. The two countries would establish parallel projects to deal with pollution abatement and control programs, spill detection plans, mutual review of national environmental policies and strategies, and most importantly data gathering and information exchange. See id.

118.See id. at 367. Agreement Between The United States of America and The United Mexican States on Cooperation for the Protection and Improvement of the Environment in the Border Area, August 14, 1983, 22 I.L.M. 1025 effective February 16, 1984 [hereinafter La Paz Agreement]. In Mexico, the La Paz agreement was signed by the President and ratified by the Senate. Under the Mexican system of government that gives the agreement the force of Federal law. In the United States, it is an executive agreement and not a formal treaty. It is effected by Presidential signature alone and does not require approval or support of Congress as does a formal treaty. Mark A. Sinclair, Comment, The Environmental Cooperation Agreement Between Mexico and the United States: A Response to the Pollution Problems of the Borderlands, 19 Cornell Int'l L.J. 87, 123 (1986). "An executive agreement lacks the enforceability of a treaty; its success depends on the continued political goodwill between national governments and on later Congressional support to fulfill executive commitments through funding and implementing legislation."Id.

119. Vera-Morales, supra note 12, at 367.

120.Id.

121.Id.

122. La Paz Agreement, supra note 118. Annex I deals specifically with the Tijuana/San Diego area. Annex II is the contingency plan for pollution incidents in the border area.

123.See supra text accompanying note 17. The result of an investigation by a joint task force of American agencies at the Laredo Texas railhead yielded 127 55 gallon drums of illegally shipped hazardous waste. See id.

124. La Paz Agreement, supra note 118.

125. Moskowitz, supra note 10 at 171. Four years after the agreement took effect, the EPA had 2 investigators to cover four western states and the Pacific Trust territories. One investigator had the island of Guam within his area of responsibility and had never been there. See Henry, The Poison Trail; How Environmental Cops Tracked Deadly Waste Across the Border, L.A. Times, Sept. 23, 1990, Magazine at 20 (concluding that too much is asked of far too few investigators).

126.See Scramstad, supra note 1, at 269. U.S. Customs and the EPA entered into a Memorandum of Understanding in 1986 defining specific agency responsibilities and to coordinate a joint enforcement program. U.S. Customs has specific authority to search export shipments under the Export Administration Act (EAA). Customs may seize and detain any suspect shipment that it has reason to believe is being shipped illegally. See id.

127.See Devaney, supra note 17, at 31. Beginning in February 1996, sophisticated chemical analysis equipment was donated to U.S. Customs by American chemical manufacturers that had suffered economic loss due to illegal imports of Chloroflurocarbons (CFCs), mostly through Mexico. See id.

128.See Moskowitz, supra note 12, at 171.

129.See id.

130.See Devaney, supra note 17, at 30. A considerable EPA effort is spent on detection of CFCs entering the U.S. CFCs are the ozone depleting chemical found in the air-conditioning units of most American pre-1994 automobiles. The importation of CFCs violates the Clean Air Act. One investigation alone (United States v. Casey Raja) (1996) resulted in the confiscation of 288 tons of CFCs. Another investigation, United States v. Irma Henneberg (1995), involved 209 falsely labeled ocean going shipping containers with a retail value of the CFCs at $52 million. See id.

131.Basel Convention on the Control of Transboundry Movements of Hazardous Wastes and their Disposal, U.N.E.P. Doc. IG 80/L.12 (March 22, 1989), reprinted in 28 I.L.M. 649 [hereinafter Basel Convention].

132. Pinzon, supra note 31, at 199.

133.See supra text accompanying note 47.

134.See supra text accompanying note 88.

135. Annex I lists the categories of waste to be controlled: clinical wastes from medical care in hospitals, waste from the production of pharmaceutical products; waste pharmaceuticals, drugs and medicines; waste from biocides, pytopharmaceuticals, wood preservatives, organic solvents, heat treatment and tempering operations containing cyanide, mineral oils unfit for their regularly intended use, PCBs, PCTs PBBs, inks, varnish, dyes, paint, lacquers, pigments, resins, latex, plastic, glue and adhesives; chemicals arising from research and development or teaching activities whose effects are unidentified or unknown on man and the environment; explosive waste, photographic chemicals and processing materials and residue from industrial waste operations.

Annex II lists categories of waste requiring special consideration: household waste and their incineration.

Annex III provides a list of hazardous characteristics to help define waste: explosives, flammable liquids, flammable solids, substances liable to spontaneous combustion, substances that which when in contact with water emit flammable gasses, organic peroxides, poison, infectious substances, corrosives, substances that emit a toxic gas when in contact with air/water substances capable of yielding another material after disposal. See Basel Convention,supra note 131 (text of Basel Convention shortened for brevity).

136.See Vera-Morales, supra note 12, at 370. Art 1. § (1)(a). The exporting state has an obligation to prohibit the exportation of waste to a country that prohibits its import. See id.

137.See id. at 370. Art. 4 § (2)(e).

138.See id.

139.See Moskowitz, supra note 10, at 180. Illegal trafficking consists of any transboundary movement of hazardous waste: (a) without notification pursuant to Convention provisions; (b) without consent of import country; (c) consent by fraud or falsification of documents; (d) shipment does not materially comply with documentation; (e) a deliberate attempt to dispose of the hazardous waste in contravention of Convention provisions. See id.

140.See Vera-Morales, supra note 12, at 373. Art. 9. §§ (2)(a) & (b)(providing similar guidelines for the importing state).

141.See Vera-Morales, supra note 12, at 370. Art. 11 § (1).

142.See id. at 373. Art. 11 § (1). Agreements whether bilateral, multilateral, or regional are subject to review by the Secretariat and shall stipulate provisions that are not less environmentally sound than those provided for by this convention. While not specifically stated anywhere in the Basel Convention as to who decides whether an agreement is environmentally sound, the language of Article 11 implies the Secretariat is the decision making body for convention signatories (which includes Mexico).

143.Id. at 373. Art. 4 § (2)(e). The criterion to determine what will constitute environmentally sound management will be decided upon by the parties involved at their first meeting. See art. 4 § (11). This provision allows either party to post additional requirements as long as lawful and further the interests of human health and environment. See id.

144.See Moskowitz, supra note 10, at 184. Art. 9 § (2)(a) pertains to an import country, while § (2)(b) pertains to an export country.

145.See id.

146.See id. art. 10. Unlike La Paz, the Basel Convention places the import/export country in the hazardous waste business when the source of the hazardous waste cannot be determined or located.See id.

147.See id. Art. 9 § (3).

148. Zagaris, supra note 28, at 30. SEDUE/EPA Cooperative Enforcement Strategy Work Group. This group consists of officials from EPA and the Departments of State and Justice on the American side and SEDUE and the Secretariat for External Relations (SRE) on the Mexican side of the table. Annual discussion centers on:

1. Information exchange regarding priorities in enforcement actions in both countries;

2.Subgroups of coordinate join enforcement actions and targeted enforcement areas;

3.Increased border surveillance of hazardous waste shipments including border checks;

4.Develop hazardous waste tracking system to facilitate exchange of data and placing trained specialists at critical border crossings;

5.Establish bilingual training courses for border inspectors;

6.Personnel exchanges placing officials on opposite sides of the border;

7.Informational exchange on laboratory facilities, analysis techniques, and sample analysis in target situations;

8.Informational exchange on methodologies supporting strong enforcement; and

9. Submit an annual report to national Coordinators.

Id.

149.The National Biennial RCRA Hazardous Waste Report, Executive Summary, Aug. 1997. supra note 3, at ES-7. In 1995, 20,497 shippers reported shipping 10.7 million tons of hazardous waste. This is a decrease of 3,467 shippers and a decrease of 6.7 million tons of hazardous waste when compared to 1993. Of the 10.7 million tons. 5.3 million tons were exported to other states. The EPA defines export as shipping to a destination in a state different from the state in which the waste was produced. Thus, an exact figure of how much hazardous waste actually crosses the border is difficult to determine. The top two exporting states, Texas (2.4 million tons), and California (1.3 million tons) are border states. See id.