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A Powerful U.S. Commission Refuses To Turn Over Its Pollution Studies, As The People Of Nogales, Arizona, Suffer.

By Tim Vanderpool

IT IS DECEMBER, 1995, and Gerardo Monroy stands high atop the Nogales, Ariz., Post Office, gazing south across the border where a soft haze drapes the steep hillsides of Sonora. Like a gauzy brown blanket, the fog blurs rows of tumble-down shacks, rangy dogs and rumpled cars dotting the washed-out slopes of the Buenos Aires colonio. Farther west, downtown holiday traffic weaves chaotically through the scarred streets, a cacophony of diesels and horns and sirens all hushed by the distance.

Behind Monroy stands a contingent of similarly silent, otherworldly devices, their dials motionless, their functions private and demure. As an air-quality study coordinator with the Arizona Department of Environmental Quality, the soft-spoken Guatemala native has spent a year tending these machines and their counterparts in Mexico. He routinely changed the filters, locked the covers, listened to the mechanical purr, all in an attempt to discover just what kind of chemical soup residents along the border are inhaling every day.

"Of course it's worse this time of year," he says, snapping a padlock shut. "During the winter months, the particulate concentrations get higher because cold weather keeps them closer to the surface."

But never is it good, he admits.

It is July, 1996, and the Nogales Wash flows languidly northward into Arizona. Passing homes and auto shops amidst anemic stands of oak and walnut, the concrete-banked waterway is essentially a fluid no-man's land, home to everything from deadly manufacturing solvents to human shit seeping from Sonora's hemorrhaging sewers.

During dry months, the wash has been known to rise several feet in less than two days. A tight-lipped, very powerful federal agency called the International Boundary and Water Commission, or IBWC, daily inundates the waterway with chlorine south of the international line. In Mexico, the wash teems with fecal coliform bacteria, a particularly dangerous microorganism feeding primarily on raw sewage.

On the American side, coliform bacterial levels only occasionally reach crisis proportions.

Eventually the wash reaches the International Wastewater Treatment Plant on Nogales, Arizona's northeast flank, where it's processed and released into the Santa Cruz River as effluent.

For many years the IBWC has operated the plant in tandem with the City of Nogales. But that's always been an awkward, contentious arrangement, and within a few months the IBWC will take total control. Now, in anticipation, the agency has dug several wells along the wash, part of a $200,000 study to determine exactly what it will be treating, and what contaminants may stream through the aquifer below.

It is May, 1997. Analysis of Monroy's results, collected under the U.S. Environmental Agency-funded Ambos Nogales Air Quality Monitoring Study, still isn't complete. Instead of the promised widespread dissemination of air pollution data by spring 1996, only bits of information have been selectively released via computer disk to city and county officials--with all data from the Mexican monitoring stations blacked out.

The IBWC now runs the Nogales treatment plant solo. But preliminary statistics from their study, also funded by the EPA, are available only to those local officials who pledge to keep it under wraps. None do.

Subsequently, they receive nothing.

For their parts, ADEQ and EPA officials cite international arrangements, as well as a backlog of project analysis, for delaying release of the air study data. Off the record, they also both site the IBWC's heavy-handed oversight for halting release of preliminary data from the Nogales Wash study.

Lying at the bottom of this rancid heap is the ADEQ and EPA's trembling fear at disrupting budding U.S.-Mexico collaboration on environmental clean-up. Both are now scrambling to determine exactly what their legal public-disclosure requirements are in the new bi-national arena.

The dilemma has also laid bare a growing struggle between their respective agencies and the IBWC, with only slightly muffled grumbling coming from all sides. At best, what will emerge from this bureaucratic morass is an entirely new paradigm for dealing with cross-border studies.

Unfortunately, as the NAFTA era unfolds, many suspect U.S. officials will continue trotting out the Mexican Trojan Horse as an excuse for denying access to information--even though those same officials privately admit the Mexicans are veering towards increased openness, and are currently trying to hustle these kinds of studies along.

The ADEQ and EPA defend their air-study stance under a pivotal U.S.-Mexico document called the La Paz Agreement, created in 1983 as a framework for cross-border environmental cooperation. Under La Paz, U.S. agencies are required to keep results from bi-national ambient studies confidential until each country agrees to a release timetable.

Their role in withholding data from the Nogales Wash project is murkier, however, with both agencies pointing to IBWC mandates requiring such secrecy.

Meanwhile, long-neglected residents of border towns like Nogales continue living in a toxic quandary, breathing tainted air and tolerating open sewage. In a very real sense, they've become sacrificial lambs to NAFTA. Or, as one official remarks, "If this kind of crap was happening in Tucson or Phoenix, it wouldn't be tolerated for a day. People would be screaming."

ANA ACUÑA HAS lupus, a vicious immune system disease. Not coincidentally, she's also executive director of L.I.F.E., or Living Is For Everyone, an influential group created when it was discovered that Nogales, Arizona, harbored a remarkably high rate of lupus and cancer in a single downtown neighborhood. Her mentor, Jim Teyechea, pushed Nogales' plight into the national spotlight, before he died of bone marrow cancer. Teyechea now has a lush park next to Nogales City Hall named in his honor.

These days, Acuña says, L.I.F.E.'s momentum has been lost--exemplified by the hidden study data. "Why aren't they releasing this information?" she asks. "The air-quality stuff was supposed to be out last January, but they keep pushing the date up. Sometimes I think they just want to let the whole thing die a natural death. I'm sure not holding my breath."

She sighs loudly. "Maybe one of the reasons the information isn't forthcoming is because the studies are flawed, or because there is information they don't want us to know about," she says. "To tell you the truth, I've gotten disgusted with the whole thing."

Acuña isn't alone.

Late last summer, Santa Cruz County Health Director Ben Stepleton traveled to a high-powered meeting at the Governor's Palace in Hermosillo, Sonora. There, among many others, he met with Sonora Governor Manilio Fabio Beltrones; Hugh Holub, an attorney for the City of Nogales; Placido dos Santos, ADEQ border coordinator; and Sam Rhodes, at that time the IBWC's point-man in Nogales.

Stepleton says it was a surprisingly glitzy affair. "I didn't expect it to be so formal," he says. "And Holy Christ, there I was showing up in a casual shirt."

But Beltrones gave a fervent speech emphasizing his country's desire to light a fire under bi-national studies like those conducted in Nogales, Stepleton says.

"I came away realizing there's been a major change in attitude by Mexican officials. I get the feeling they really want to be forward-looking. Even in Nogales, Sonora, they've been taking us on tours, looking at problems with their sewer system, things like that.

"To tell you the truth, now I think it's agencies like the IBWC that are slowing things down."

Stepleton should know. In his role as chief guardian of the county's physical well-being, he's been prodding the ADEQ to release their air-quality stats gathered in Mexico, seemingly forever. "We've been making some progress," he says. "We've gotten data from this side of the line. But the ADEQ and the EPA are still playing games. They're supposed to already have a draft final report done. Who knows when we'll see that."

Then comes the monolithic IBWC. "They said we could get their initial report, but with the proviso that it couldn't be released," he says. "I told them they didn't get the point. I said, 'Look, we can't legally withhold this stuff.' The result is that, several months later, that data still hasn't been released to us.

"Nobody wants to jeopardize our relationship with the Mexicans," he says. "But in this country, it really gets down to the public's right to know. It shouldn't be that big a deal. And the effect is that it starts making people wonder what they're trying to hide."

Currently the county is expected to rely on other agencies' bureaucratic goodwill, he says. Both the ADEQ and the IBWC have promised to notify him if they come across emergency-level contamination.

CONTRARY TO THEIR analytic pace, ADEQ's excuses for delaying the air-quality results come fast and hard. When contacted in March 1996, John Burchard, ADEQ special projects manager, said, "It can take more than year to even set up a state contract with consultants. So I figured adding this to an already-existing contract was still the best way to go."

When asked four months later whether he could predict a release date for the Mexican data, he simply said, "Nope."

Asked the same question last March, a grumpy Burchard referred a Tucson Weekly reporter to ADEQ public affairs spokeswoman Sandra Kotzambasis, who sent the same reporter to Border Coordinator Placido Dos Santos.

Dos Santos says the air study hold-up is due to its international flavor, at least in part. "All the data have been collected," he says, "and the PM 10 data (particulate matter larger than 10-parts-per-million) have been posted on-line. But I do know that the rest of the data is far behind, and I don't know why. It should be released at the end of this year, or in early January."

Mexican approval is mandatory, he says, adding there's also little advantage to just throwing out raw figures. (One border activist calls that claim "bullshit," saying, "There are plenty of folks out there capable of analyzing it.")

Still, Dos Santos sticks to his guns. "Ultimately, we'll be performing an epidemiological study," he says. "It will be ground-breaking."

Indeed, perhaps ironically, the Nogales air-quality project is considered a model program, to be repeated in other border cities such as Douglas.

In turn, the IBWC study has been in the pipeline for three years, the result of a joint planning document signed by the agency's U.S. and Mexican sections. Like the air-quality study, releasing its results also requires bilateral agreement.

Under contract, the ADEQ is now analyzing the first round of data from that study. So far they've agreed to keep the numbers secret. "Even though we have it, the IBWC said we can't release it," Dos Santos says. "We're not sure the IBWC can order us to do that, under the force of an international treaty.

"It's a delicate place to be," he says. "And it does affect the relationship between the agencies. Right now we're trying to figure out where ADEQ lies."

Some solution must emerge soon, he says. "We cannot work this way in the future. We have an obligation to the American public."

An ADEQ pamphlet spells out that obligation quite nicely. "The general policy of the department with respect to public records is one of open disclosure," it says. "This policy recognizes that the public has a right of access to public records based on law that should be addressed in a manner consistent with the department's customer focus values."

But "customer" apparently fits into a very snug definition: In May, the Tucson Weekly requested preliminary data from ADEQ on the Nogales Wash Groundwater Quality Study under the Arizona Public Records Law. That request was denied.

In a response letter, Dos Santos said his agency was currently poring over related international treaties and documents. "Efforts are being made to complete this important legal analysis at the earliest opportunity," he wrote, "but the complexity of the matter requires additional time."

He said the issue has been referred to the Arizona Attorney General's Office for review.

Evelyn Wachtel heads the EPA's Nogales Facility Project (a long-term Nogales wastewater plan) for Region 9, which includes Arizona and California. She agrees the process is sticky. "The IBWC considers that data to be very sensitive," she says. "It's part of an international agreement, a joint report. In a sense, we're bound by that."

But she doesn't find the situation surprising, she says. "Historically, the IBWC hasn't worked with a very public process."

There are similar rumblings to the east. Terry Turner, the EPA's El Paso-based area engineer for Region 6 covering New Mexico and Texas, says cooperating with the IBWC puts his agency in a pinch. "This is one of the only cases when the EPA can't release information," he says. "We would like it to be different, more open."

But, as an arm of the U.S. State Department, "the IBWC is fairly well-wired," he says. As a result, "the process is not all we would hope for."

Apparently not. In May, the Tucson Weekly also requested data from the IBWC concerning the wash study under the Freedom of Information Act. The agency unilaterally extended its deadline for providing the material. To date, that information still hasn't been released.

WHICH LEADS TO the question: What exactly is this bureaucratic dragon whose fires can apparently singe even the most ardent attempts of other agencies to come clean?

Operating under the State Department, the quasi-diplomatic agency emerged near the end of World War II. Its purpose was confined to implementing the 1944 U.S.-Mexico Water Treaty and other water-related agreements between the two countries.

Traditionally comprised of technocrats with little concern for public input, the agency has shown even less regard for outside scrutiny. Operated like a minor fiefdom, it has, for all intents and purposes, achieved that goal.

The IBWC is run by a presidentially-appointed commissioner with rank equivalent to an ambassador. It has a counterpart in Mexico, the Comision Internacional de Limites y Aguas, which is overseen by that country's Foreign Ministry.

Since its inception, the IBWC's scope has expanded to include dams, and wastewater plants like the one in Nogales. And, always able to play the diplomatic card, it has become a potent, behind-the-scenes power broker along the border, remaining unaccountable to nearly everyone except State Department higher-ups and the president.

Nor have IBWC commissioners shied from wielding that influence, especially Joe Freidkin, an engineer who came on board in the late '40s and subsequently spent two decades at the agency's helm. "He was one of the most powerful water managers in the U.S.," says Stephen Mumme, a Colorado State University political science professor and leading IBWC scholar. "Freidkin ran the IBWC with an iron hand, and he was very accustomed to using the levers of power."

Congressmen regularly pandered to him, Mumme says, and during his long tenure the agency built up a culture of insular autonomy.

In the early '90s, Freidkin passed the torch to Narendra Gunaji, an India-born hydrologist with far more technical savvy than political experience. Not surprisingly, Gunaji's stint at the top was rocky. He quickly angered countless officials, and his haughty presence sparked a long-lasting feud with Arizona Sen. John McCain.

By 1995, the contentious Indian had been replaced by John Bernal, a former head of the Pima County Public Works Department, a man known for considerable political acumen.

Southern Arizonans rejoiced at the appointment: Bernal was a hometown boy, after all, and he was expected to throw open the agency's doors, thoroughly dusting the IBWC's secretive inner workings which more than once have been likened to the CIA.

Mumme calls that comparison an overstatement. "But the fact is, because of their institutional style, they were a very efficient agency," he says. "They were able to handle issues very quietly."

And he praises Bernal, saying that under his leadership, "the IBWC has been more open than ever."

That does little to appease officials like those in Nogales, however, who have constantly felt the brunt of the IBWC's heavy-handedness, particularly over operation of the international sewage plant. While Nogales tended to the plant's day-to-day operation, the IBWC was responsible for its funding. But the two entities constantly wrangled over costs and the agency's ongoing attempts at micro-management.

As the battle reached fever pitch last year--in one snippy letter to Bernal, former Nogales Assistant Administrator Mike Hein warned of the "rising tide of anger and resentment in this city"--the IBWC made moves to take the plant over, a process finalized by January.

Now the agency's refusal to distribute data from the taxpayer-funded study to Nogales residents appears to be business as usual, Hein says. "Obviously, we'd like to have that information released. Once they give it to us, we would be able to make some decisions that are crucial to this city."

Several attempts to reach John Bernal for comment were unsuccessful, as were efforts to contact his Mexican counterpart in Juarez, Arturo Herrera Solis. But Yusuf Farran, division engineer with the IBWC's environmental management department, did agree to explain his agency's policy on the Nogales study.

"Right now the Mexicans are working on their wells," he says. "That had been postponed until last February." He adds that the Mexican government is paying for all the work within its borders.

"Once the data is evaluated, it will be shared between the two countries," he says. "We'll need time to study it, evaluate the results, do quality control."

He discounts the IBWC's reputation for secrecy--"That's news to me"--and rankles at the CIA comparison. As for putting other agencies in a public-disclosure bind, he calls it part of the package. "The ADEQ hasn't yet evaluated the data, it hasn't been checked and evaluated," he says. "We work as a team. Once the data is complete and accurate, then we'll share it."

Farran says it's hard to release the information earlier, "because a lot of times you encounter too many errors in the data. You may wind up embarrassing yourself." He says the agency is "pushing hard" to have the first draft of the study released by sometime in July.

"But there's nothing to hide," he says. "Every penny is accounted for. We're here to serve the public."

That draws a sardonic chuckle from Ben Stepleton, who says he's very tired of playing bureaucratic cat-and-mouse. "I heard unofficially that they haven't found much in the wash study," he says. "But if they're doing this with data that's harmless, what are they going to do if the data is harmful?

"I want to tell the ADEQ and the IBWC that there's public trust involved here," he says. "Especially the IBWC. They think they are completely autonomous. I'll tell you, it's really frustrating."

Photos by Dominic Oldershaw

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