Invoices filed by Asarco lawyers in the company's bankruptcy case indicate three meetings with one or more members of the Texas Commission on Environmental Quality prior to the commission's Feb. 13 approval of the Asarco air pollution permit.

Those meetings were in violation of state law, the city of El Paso alleges in a supplement to its petition to rehear the case. The supplement was filed Thursday. [see supplement via link at bottom of story]

Asarco wrote in an unattributed statement that the meetings were not improper because the contested case portion of the Asarco permit process concluded in 2006.

But a TCEQ spokesman said Friday morning that the agency would not comment on the issue because it is considered a "pending legal matter."

The city of El Paso is a creditor in the bankruptcy proceedings, which might be concluded by May. The company was to receive bids by this week.

The city received copies of invoices submitted by Asarco attorneys to the bankruptcy court. Those invoices, which bill more than $10 million for work and almost $700,000 in expenses from November to Feb. 29, include three entries that describe a Dec. 3, 2007, meeting with TCEQ Commissioner Buddy Garcia, and Nov. 19 and Jan. 21 meetings with an unnamed commissioner.

The city's Thursday supplement cites two portions of state law that, as the city's news release states, "prohibits ex parte communications between a decision maker of a state agency and a party or its representatives in a contested case."

The two cited portions are Texas Government Code 2001.061 and Texas Administrative Code Title 30, Section 80.15.

"The City has opposed the restart of the Asarco plant throughout the TCEQ permit review process with the understanding that the final decision would be made on a level playing field. It is very disturbing to learn that Asarco’s representatives appear to have met and had discussions with TCEQ Commissioners without notification or participation in the discussions by the City or its attorneys," said El Paso Mayor John Cook in a statement.

Asarco responded via a statement emailed to members of the media:

“After extensive deliberation and stringent review, the City of El Paso persists in mischaracterizing the law and the facts to justify their attack on a 100-year old El Paso business.

"The contested case hearing which forbids ex parte communication was completed in March of 2006. In fact, after March of 2006, it became legal, proper, and a routine part of due process for proponents and opponents of the renewal to meet individually with the Commission and staff. As is standard in these matters, the City of El Paso's legal team and Asarco's legal team had individual, parallel meetings with TCEQ, which in no way could be construed improper."

TCEQ spokesman Andy Saenz said in response to an e-mail query that "Because the motion for rehearing is still pending before the commission, we cannot comment on pending legal matters."

When asked whether calling the issue before the commission a pending legal matter would lend credence to the assertion that Texas Government Code 2001.061 and/or Texas Administrative Code Title 30, Section 80.15 applied to the commissioners up until the Feb. 13, 2008 decision, Saenz responded via e-mail: "You have our official response."

A timeline of events:

-- Feb. 13, 2008, the TCEQ Commissioners decided in a 3-0 vote to renew the Asarco air permit. [npt feb. 13, 2008]

-- March 17, 2008, the City and the New Mexico Environment Department filed a petition with TCEQ to revoke the Asarco air permit. [march 17, 2008 petition]

-- April 8, 2008, Asarco files a response to the petition to revoke [april 8, 2008 asarco response]

-- April 9, 2008, the U.S. Environmental Protection Agency sent a letter to TCEQ asking it to respond to 'several significant questions' regarding the issuance of the Asarco air permit." [npt april 11, 2008]

-- April 16, 2008, the City filed its Motion for Rehearing with TCEQ, identifying the technical and legal reasons in support of the City’s position that the permit renewal should have been denied and requesting that TCEQ reconsider the decision. [npt april 17, 2008]

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