November 20, 2007
Editor's note: A special edition of Media Watch.
Tom Fenton, publisher of El Paso Inc., and editor Wendy White Polk decided to publish part of an email exchange between Polk, myself and Mike Mrkvicka, who wrote an article on a recent GAO report regarding Asarco. [link] Mike's story came out before the GAO released the report, which itself was focused on how the Department of Defense handled military waste from the Rocky Mountain Arsenal in Colorado.
Some of that waste found its way to the Asarco furnaces in the 1990s. The report looked at how the waste was handled at the Arsenal, on its way from Colorado to Encycle, an Asarco subsidiary in Corpus Christi, and to Asarco, which claimed it recycled copper from the material. In part, if not in whole, because of those activities -- whether it be called recycling, waste disposal, or illegally burning hazardous waste -- the company entered into an agreement with state and federal regulators to pay fines and perform cleanup activities in El Paso (the agreement also included Asarco properties elsewhere). The so-called "consent decree," in which Asarco agreed to the fines and cleanup but did not admit any wrongdoing, was signed by Asarco and regulators in 1999.
One element of the agreement was a 1998 memo from EPA investigators, in which they said Asarco had engaged in "sham recycling" by illegally disposing of hazardous waste with little to no recyclable value in the $100 million Contop furnace. The memo was made public due to open records requests by Heather McMurray, who has been a persistent critic and opponent of Asarco and says, along with other Asarco opponents, that the memo proves illegal activity and points, at best, to a track record of poor corporate behavior. Asarco dismisses the importance of the memo, pointing to the consent decree as the final legal word on the issue.
Back to the GAO report … On or about the day after the GAO report was made public a week ago, I spoke with Bob Robinson, GAO managing director for natural resources and environment. He mentioned that previous media reports had misrepresented the report. [report] Mike's was the only story to come out at that point. Robinson told me that the GAO report did not conclude anything and created no policy recommendations. And in the portions dealing with Asarco, the report relies heavily on two elements, the 1998 memo and statements from unnamed EPA and DOD officials.
Taken out of context, elements of the report could be read to "throw cold water upon" or "pull the rug out from under" Asarco opponents' claims (phrases from Mike's story), but even at that, those elements of the report are attributed in the report to unnamed government officials, and are never presented as conclusions by the GAO. By misrepresenting the source of the assertions, the Inc misrepresents the significance and context of the report, a fundamental error.
There are few good options here: The reporter and/or editor were led to portions of the report and didn't know enough background to place it in context; or they were lazy and/or rushed and didn't do a thorough job in understanding the report.
By any standard of journalism, it was clear that Mike's story was off the mark.
In addition, it appeared to rely heavily, if not completely, on the appendix to the report that dealt with Asarco. Another GAO official, Ed Zadura, said that draft copies of the report had been sent to the EPA, DOD and the office of U.S. Rep. Silvestre Reyes, who had requested the report. The appendix only had been sent to Asarco, he said. That pointed to at least the possibility that Asarco had leaked the story to the Inc in an attempt to receive favorable coverage.
On Nov. 14, 2007, I asked Asarco, through its public relations person, whether the company had provided El Paso Inc the report. The answer was no. Several hours later, I received an email from Polk. My email, published in the El Paso Inc, was a response to her. Later that day, I got the email from Mike. I called him and had a good conversation; initially, I considered a story, but as the week wore on, and I whittled down my pile of chores, I realized I wasn't going to get to it, and so let it go.
Ironically, I had considered publishing the exchange, but figured it would not be fair, and thought that if I did a story, I'd do it straight up, and call them to ask about it. Fenton and his team did not extend such a courtesy, and misrepresented the exchange by framing it in his publisher's note as part of the anti-Asarco backlash he's received since the initial story.
By leaving out Polk's email to me, he makes it look as if I initiated the exchange. I did not, and if I knew he was going to pull such a sleazy stunt, I would have made sure to respond to Mike's last email in writing, as opposed to via telephone. Perhaps I should have anyway, as the written record is important, and the information under discussion clearly is of vital public interest.
So I'm publishing the exchange as well, along with Polk's initial message to me, which sparked my critique.
The bottom line is that Asarco has a 100-year history of toxic activity. There is no dispute regarding the byproduct of the processes involved in the smelting industry. It produces poisons. The question is, how much of that byproduct is captured and disposed of safely, before it has an impact on the public's health? Asarco and its regulators say all is well, but the record brings that into dispute. It is fair to question -- pointedly and aggressively -- the company itself, and the regulators who are supposed to be watching the company. That is the role of a watchdog press, the shortcomings of which are obvious in El Paso. Newspaper Tree attempts to fill that gap. It's what I've always aspired to in my journalism career, which started under Fenton when he was editor of the El Paso Times.
Maybe that's where I started to go wrong. But that's another story.
***
From: Wendy White Polk
Date: November 14, 2007 2:30:47 PM MST
To: snegron@earthlink.net
Cc: mikemrk@zianet.com
Subject: Asarco, etc.
Sito,
We hear you may be working on a story about El Paso Inc.'s story about the GAO report about Asarco.
Our story was written based on a draft report. When the final report was released, we checked it against the draft, as well as out story by Mike Mrkvicka.
Every point made in our story appears in the final report unchanged.
If you have any questions or need information, feel free to contact us.
Thanks.
Wendy White Polk
Editor, El Paso Inc.
915-534-4422 x143
www.elpasoinc.com
***
From: Sito Negron
Date: November 14, 2007 3:13:47 PM MST
To: Wendy White Polk
Subject: Re: Asarco, etc.
My analysis of the GAO report and your report is that you misrepresented, either purposely or in error, the report's conclusions.
1) The report only addresses military waste from Rocky Mtn Arsenal. That represented about 300 tons, a small portion of the overall 47,000 tons of Encycle Waste that the EPA stated in its memorandum was sent from Encycle to El Paso and East Helena.
2) Asarco did not recover 250,000 pounds of copper. Page 28 of the report: Encycle recovered 250,000 pounds of copper. So that would be before it ever got to El Paso. Army officials are cited as the source of that information. The report does not say how much was retrieved at Asarco. On page 36, the facts are muddied somewhat, as it states that Encycle/Asarco retrieved 250,000 pounds. EPA officials are cited as citing Encycle/Asarco information.
3) The GAO report was a summary only of information, most of it previously known. What is new is the specific info relating to the material from Rocky Mtn, and perhaps one could argue its implicit criticism of the EPA public disclosure (and Rep. Reyes' subsequent much less implicit criticism of such). Also new (at least to me) is the description of the processes, for example, bullet point two under the subhed "250,000 pounds of copper."
To portray it as the definitive word either way is an editorial stance, not a fact to be reported in a news story. All the assertions contained in the piece would be fine if the assertions -- "pulls the rug from under their feet" and "throws cold water upon" -- were attributed to the obvious source, Asarco, but they are not, and are presented as reported fact, which they are not.
4) This bears more reporting: Under the subhed "Non-metallic anomaly" is states non metallic substance sent to Encycle, but then when its processed and sent to Asarco, it contains metals? So they're saying that it was no recyclable when it got to Encycle, but then it was mixed with something and sent to Asarco? Isn't that exactly what the EPA memo stated? Also, Asarco had claimed that the 1989 TWC memo quoted by the GAO allowed them to perform the activities, but the EPA expressly refuted that contention.
5) The GAO did not state that Asarco did nothing more than screw up paperwork. The GAO quotes EPA officials as saying that. I figure that's a reference to page 35. On page 36, it refers again the info from the 1998 EPA memo to state that four cars tested did not have metals content. Later on the page, EPA officials said they did not believe the rest of the material was similarly free of metal, although they cite nothing to support this assertion.
The GAO reports neither proves nor disproves the significance of this 1998 memo. So yeah, you could say you quoted the report accurately -- you just got the story wrong.
***
From: mikemrk@zianet.com
Date: November 14, 2007 6:09:27 PM MST
To: snegron@earthlink.net
Sito –
I’m flattered to think you’ve spent so much time deconstructing my Asarco story. But just a couple questions about your points.
You say the military waste from Rocky Mountain Aresnal represented only 300 tons, the amount mentioned in the 1998 memo. But that seems awful small given the report’s assertion that the Army contractor at the arsenal sent “shipments of railcars to Encycle on a weekly basis for approximately 2.5 years.” If 300 tons could be held in four rail cars, and if four or five rail cars were sent each week, it’s easy to see how Encycle would receive at least 47,000 tons from the arsenal.
You say Encycle in Corpus Christi, not Asarco in El Paso, recovered 250,000 pounds of copper. That took me back when I first read it, too. But Encycle is a recycling facility. Iit doesn’t have a smelter. If copper was extracted from the waste, it would have to be done at a smelter like the one in in El Paso, not the recycling facility in Corpus Christi. That’s how the process is described in the report. You might want to check on that.
Encycle and Asarco were hammered in the consent agreement for failure to obtain haz-mat manifestos for shipments of the Rocky Mountain waste between Corpus Christi and El Paso and for failure to get the proper haz-mat storage permit in El Paso. But the report makes it clear why Asarco didn’t feel it needed them. The material had already gone through two decontamination procedures, first the liquid incinerator in Colorado, then the metals separator in Corpus Christi. After separation, the metals were still in a brine, just a more concentrated brine, according to the report. After those two procedures, Asarco apparently felt it could treat the brine as copper ore. And copper ore, the last I heard, doesn’t require a haz-mat manifesto for shipment.
Clearly, the EPA thought differently. When they found out what Asarco was doing, they claimed the company needed proper haz-mat paperwork. Asarco thought one way about the paperwork. The EPA thought the other. Any way you slice it, it’s a paperwork screw-up. Plus, as it says on page 35, “The EPA officials commented that if Asarco had obtained the proper permits and followed the applicable regulations, the company could have legally conducted the smelting of materials it received from Encycle.” So the EPA doesn’t appear to have considered it a health issue.
Yes, it was a big paperwork snafu. Two and one half years worth of missing manifestos and permits. And that’s why the fines were big. But it was a paperwork screw-up nonetheles, as accurately described in my story.
The 1998 EPA memo correctly identified 300 tons of waste from Rocky Mountain that contained no reclaimable metals. But that was just a minute amount of the waste Asarco received from Colorado via Corpus Christi. And the report explains how that happened, the lechate and all that (page 36). It seems a little overenthusiastic for Asarco opponents to insist the 1998 memo accurately describes the waste in all 2.5 years worth of railroad cars. Particularly since 250,000 pounds of copper was extracted from it. For that reason, I do think it accurate to say the GAO report diminishes the importance of the memo. “Splashing cold water” or “pull the rug.” It’s all the same version of "diminishing the importance."
Certainly all is fair in love, war and journalism. If you want to criticize my story in cyberspace, have a good time. But know that I approached the story as honestly as I could. I’m no Asarco apologist. I live in Sunset Heights and enjoy the clean air.
And be a sweetheart. Refrain from using this e-mail in your story. All I want is to point out a few of my doubts about your points and insure you whack my story as accurately as possible.
Mrkvicka
***
From: Sito Negron
Date: November 14, 2007 9:08:00 PM MST
To: mikemrk@zianet.com
Subject: Re:
Well, truth be told, I didn't have to spend much time deconstructing the piece.
I have no doubt you approached it honestly. I like your reporting and have a high regard for you.