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Refuse Wrangling

The state takes the feds to task over toxic sewage


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With the Santa Rita Mountains as their backdrop, a series of pools on the outskirts of Nogales shimmer invitingly. But you wouldn't want to take a dip in them. Tranquil though they may seem, these processing reservoirs for the Nogales International Wastewater Treatment Plant treat up to 15 million gallons of sewage each day. Roughly three-quarters of that daily output flows downhill across the border from Mexico.

Once it's processed, the effluent is dumped into the Santa Cruz River.

An agreement dating from the 1980s authorizes the Arizona plant to treat up to 9.9 million gallons of Mexican sewage each day. But Mexico regularly exceeds that allotment by several million gallons, costing American taxpayers more to treat the excess.

Not far from the busy plant, a wide, concrete-lined drainage ditch courses through the middle of Nogales. There are times, even during long dry spells, when the wash suddenly gathers water along its sun-baked stretches. You probably wouldn't want to dip a toe in there, either. During certain periods, raw sewage has been known to flow into the wash from Mexico.

A low-profile but quite powerful agency called the International Boundary and Water Commission regularly doses that flow with chlorine south of the Mexican line, to prevent outbreaks of fecal coliform bacteria. The agency also operates the wastewater treatment plant.

All of which means that little Nogales often finds itself under the thumb of this sometimes heavy-handed agency. For instance, the city's complaints about sewage in the wash or problems with the treatment plant are routinely dismissed.

"They are tough negotiators and they don't always play nice with us," says Deputy City Attorney Michael Massee. "They're like this great big lumbering ox, and if they don't want to go in a direction, they don't go. I think they see us as kind of a fly."

State officials, however, are not so easily brushed aside. That became apparent in May, when the Arizona Department of Environmental Quality announced that it was filing suit against the IBWC over what it calls a failure of the federal agency to adequately remove illegally high levels of cadmium, ammonia nitrogen and cyanide before the effluent is discharged into the Santa Cruz. During the last four years, the IBWC has amassed more than 100 violations for exceeding state toxin-release standards. The chemicals are believed to emanate from chrome plating and other industrial operations south of the border.

"These are serious violations that have largely been ignored by the IBWC," ADEQ director Henry Darwin said in a press release last spring. "ADEQ has worked with our counterparts in Mexico to significantly reduce cadmium in the past, but IBWC has not continued our work and the problem has returned."

In the same release, Nogales Mayor Arturo Garino expressed ongoing frustration. "The city of Nogales has attempted for years," he said, "to have the International Boundary and Water Commission take responsibility for the floodwaters and the raw sewage from Mexico that flow through the middle of Nogales."

According to the ADEQ, cadmium is a carcinogenic metal often carried by wastewater, particularly from the metal-plating industry. Exposure can lead to bone, lung and kidney problems.

In an interview with the Tucson Weekly, ADEQ spokesman Mark Shaffer said it was "the IBWC's job" to better monitor the waste coming across from Mexico. He notes that in 2010, the state even issued a compliance order against the IBWC for allowing a farmer to dump cadmium-laced sludge in his pastureland near Nogales.

Today, however, the lawsuit mostly resembles a pingpong match, with taxpayers left footing the growing legal bills.

After the ADEQ filed an enforcement action against the IBWC under the federal Clean Water Act, federal officials responded with a third-party complaint against the city of Nogales, alleging that because it shares the permit for the plant, it also shares liability.

On Aug. 29, the case was moved from Phoenix to a federal court in Tucson. A trial date has not yet been set.

A call to IBWC Commissioner Edward Drusina was not returned. However, about a week later I did get a call from Sally Spener, a foreign affairs officer with the agency. She referred me to the U.S. Department of Justice, which then declined to comment, citing the pending litigation.

Still, many see the IBWC's move to shift part of the blame on cash-strapped Nogales as merely strategic, aimed at blunting the ADEQ's aggressive action and punishing the city for publicly supporting the state's enforcement action.

Such strong-arm strategizing would not be new to the agency. An organ of the U.S. State Department, it was established near the end of World War II to implement the 1944 U.S.-Mexico Water Treaty and other water-related agreements between the two countries.

Comprised of technocrats largely isolated from public pressure, the IBWC is led by a presidentially appointed commissioner whose rank is equivalent to an ambassador. The agency has a counterpart in Mexico, the Comision Internacional de Limites y Aguas, which is overseen by that country's Foreign Ministry.

Over time, the IBWC's mission has expanded to include oversight of dams, and wastewater plants like the one in Nogales. 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.

All of which means it can ignore the complaints of Nogales with relative ease. But whether the agency can so deftly avoid enforcement by the ADEQ remains to be seen.

Either way, many consider the IBWC's attempt to use Nogales as a bargaining chip as blatantly unfair. "We've denied liability for the wastewater that comes from Nogales, Son.," says Massee, the deputy city attorney.

Because both the city and the IBWC are named on the state wastewater permit for the treatment plant, "both of us are responsible in that sense for the quality of what comes out of the wastewater treatment plant," he says. "But when the quality of the discharge is affected by the quality of the inflows from Mexico ... it's really hard to hold the city responsible for that."


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