The memo dug up by a citizens group that opposes the reopening of Asarco may not point to any new allegations, but it does shed more light on the issue.
El Paso’s Asarco smelter illegally accepted thousands of tons of hazardous waste during the 1990s from Encycle, a subsidiary metal-recycling company in Corpus Christi, according to a 1998 Environmental Protection Agency internal document secured by a citizens’ group fighting the reopening of the copper smelter. [document]
The charges were folded into a larger case against Asarco, which resulted in 1999 in an agreed order -- basically a settlement, in which the company does not admit wrongdoing but agrees to pay fines or other penalties. In El Paso, the decree resulted in an order to spend about $1.5 million paving roads, a contract that still has not been fulfilled. [related npt article]
Parts of the story have been reported -- the general allegations of illegal waste disposal, the order and the fines, and the more specific allegations by citizens’ groups fighting Asarco that came up during the emissions permit hearings last summer. But the memo, which contains strong language as well as a table of materials handled by Encycle, is more detailed and provides more information on the source of the materials alleged by the government to have illegally been destroyed at Asarco.
Bill Addington, a member of the Get the Lead Out Coalition, which worked with Sunland Park Grassroots Environmental Group to dig up the information, said the memo shows a potential health threat to the community that never has been fully examined in public.
"We believe the TCEQ and EPA are more at fault (than Asarco) ... they knew about it and didn't tell the public," Addington said. "The TCEQ in my opinion is in pollution collusion with industry."
Asarco Vice President for Environmental Affairs Tom Aldrich issued a statement Thursday (Oct. 12) calling the allegations "not new" and "not true." The allegations drew national coverage in the New York Times, as well as wire services.
"Allegations published earlier today that Asarco illegally burned hazardous waste in its El Paso, Texas smelter in the 1990s are not new and not true."
The charge that Asarco illegally burned the waste material is not new, but the document sheds more light on what was at issue. According to the July 31, 1998 document, Asarco accepted some of the more than 5,000 tons of hazardous material, including waste from an Army chemical weapons depot near Denver and Dupont’s Sabine River facility, that was sent to Encycle in Corpus Christi from 1989 to 1997.
Asarco has argued that it was given permission in 1989 to recycle metals by the Texas Water Commission, the precursor to the TCEQ. However, states the July 31, 1998 DOJ memo, “the TWC letter cannot be construed to cover sham recycling. ... Encycle’s own business records provide compelling evidence of sham recycling.
“Numerous hazardous wastes with little or no recoverable metals value, were mixed into Encycle alleged ‘products.’”
The memo states that Encycle received 247 shipments totaling more then 5,000 tons of hazardous waste “that had virtually no metals value.” In addition, states the DOJ memo, “Encycle also mixed hazardous waste sludges generated from its wastewater treatment plant into its alleged ‘products.’”
That appears to contradict statements made by officials of the EPA and Texas Commission on Environmental Quality to El Paso media outlets, first in August 2005 and then in July 2006, that the material burned likely was material similar to that smelted at the refinery. In an El Paso Times article on July 3, 2006, TCEQ Regional Director Archie Clouse was quoted from a memo he wrote that the material from Encycle was simply a copper blend that “did not meet the definition of recyclable due to lack of sufficient metal content.”
Clouse also wrote in the memo that the material that might have been burned did not pose a health threat. Heather McMurray, a Get the Lead Out member who used open records laws to expose the July 31 DOJ memo, said her response to Clouse’s assertion “was to ask for the data supporting (the assertion) and I was told it was confidential."
Asarco, which declared bankruptcy in 2005, is blamed for at least partially contaminating more than 90 mining and refining sites in 22 states in the western U.S. It faces thousands of claims ranging from local governments to individuals, and its potential cleanup obligations are measured in billions of dollars.
"In the American West, the modern ‘trail of tears’ is the $21 billion of lead and arsenic waste left behind by Asarco in 94 communities over 21 states,” said El Paso state Sen. Eliot Shapleigh, who led a community fight against the smelter’s reopening.
He called for an investigation of the EPA, saying the document shows the agency “knew Asarco burned toxic waste right near Downtown El Paso ... I want to know each violation, what was burned, who failed to prosecute and why they protected Asarco, not us.”
Daniel Arrellano, a former Asarco employee who said he has myelodysplatic syndrome and has lodged a claim against the company, said employees were never told about the alleged illegal waste disposal and also demanded an investigation “by the Department of Justice as to what passed through the El Paso smelter.”
An EPA spokesman in the agency’s Region 6 Dallas office referred comment to the Department of Justice, saying the DOJ handled the issue as a civil matter and is the lead on press inquiries.
"The Justice Department brought an enforcement action against ASARCO in 1999 and resolved it with a consent decree. After taking public comment, the consent decree was approved by a Judge in U.S. District Court in Houston,” said DOJ spokeswoman Cynthia Magnuson. “All available information was considered by EPA and the Department of Justice in reaching this settlement, including the documents obtained by the citizen groups. The Justice Department continues to take action to make certain that Encycle complies with the consent decree."
Asarco, a Tucson, Ariz., company, is owned by metals conglomerate Grupo Mexico. In 2003, it entered into an agreement with the U.S. Department of Justice to create a $100 million trust fund for cleanup. In exchange, the company was able to transfer stock in a Peruvian mine to its parent company. Critics suggested this was a way of protecting the valuable asset from Asarco’s liabilities.
In El Paso, Asarco is seeking to reopen its smelter, and is awaiting a renewal from the state for its emissions permit. The renewal could come at any time.
The process is being watched across the state, as renewal of a permit never has been denied; Shapleigh led a community fight against the permit renewal, leading to a potentially precedent-setting state hearing on the issue, at which numerous community leaders and citizens spoke against renewing the permit.
Texas business groups, including the Texas Association of Business, the Texas Chemical Council, and the Texas Oil and Gas Association, filed a friend of the court briefs on behalf of Asarco in 2004, arguing that the renewal is an administrative process. “The TCEQ’s determination that it has plenary authority to grant a contested case hearing with respect to no-increase air permit renewals ... imposes unanticipated, costly and burdensome new requirements,” stated the Nov. 29, 2004 brief.
* * *
Sito Negron can be reached at sito@newspapertree.com.