Mayor John Cook said he thinks the Texas Commission on Environmental Quality should be renamed and should have to repay the $1.4 million that El Paso spent in legal fees to keep the Asarco plant closed.
“The TCEQ should have changed their name a long time ago to the Texas Commission for the Protection of Polluters,” he said.
Asarco cited depressed copper prices and the world economy in announcing it would give up its effort to reopen the plant even though the TCEQ had renewed the company’s air discharge permit.
But on the day of that announcement, there came to light an Environment Protection Agency letter to TCEQ that effectively overruled the Texas agency’s decision to view the Asarco case as a permit renewal.
Instead, the EPA found that environmental rules called for a determination that the Asarco plant, closed for 10 years, was permanently shut down after two years and should have had to apply for a brand new operating license.
Most agree that would have ended Asarco’s bid for a permit and that Asarco officials knew the determination was in the mail when it announced its decision to give up on the El Paso site.
Given that decision, the question that might be asked is whether El Paso spent $1.4 million needlessly?
“Well, it wasn’t needlessly because we got what we wanted and what we felt we deserved in the first place,” Cook said.
But, the city wouldn’t have had to spend the money in the first place if TCEQ had been doing its job, he said.
Cook said he has asked the city’s outside counsel, Erich Birch, to look into the possibility of recouping the money.
Not unexpectedly, TCEQ chief spokesman Terry Clawson disagreed with Cook’s assessment that the agency tends to protect polluters.
“To the contrary, we are proud of our aggressive enforcement program that is leading to a cleaner environment in Texas,” he said in response to NewspaperTree.com’s query. “The issues EPA raised in their letter were all addressed in the Commission's order of April 2008.
“Those issues were identified by a 3rd-party engineering report the TCEQ commissioned. ASARCO was ordered by the TCEQ to resolve all of these issues BEFORE they could begin operations.”
Getting that $1.4 million back
In saying the city would like to have its $1.4 million back, Cook cited a case in which the nonprofit Texas Clean Air Coalition challenged the permitting of coal-fired electrical generation plants and wound up getting its money back.
But Clawson said that situation was very different from the Asarco case. It involved the Luminant Generation Co., previously TXU Generating Co. LP, which was before the State Office of Administrative Hearings trying to withdraw its applications without a finding of prejudice that would interfere with a future reapplication.
“One of the options in the TCEQ rules for an applicant to withdraw without prejudice at that point in the process is for the applicant to reimburse the other parties for all expenses, not including attorneys fees, that the other parties incurred in the permitting process,” Clawson wrote in response to Newspaper Tree’s question. “Luminant (not TCEQ) did pay all the parties' expenses, excluding attorneys fees.
“This is different from the El Paso ASARCO case in that the permit had already been issued and was then voided at the company's request outside any legal proceeding.”
To that, Cook said, “We still will look into it. I’m not going to walk away with $1.4 million of our money on the table.”
A $52 million clean-up? Is it enough?
Another issue percolating around the Asarco closing is whether the $52 million price tag that TCEQ has put on cleaning up the plant’s 123-acre site would be enough.
State Sen. Eliot Shapleigh has said an unnamed EPA official EPA estimated the cost at closer to $250 million, though it was not an official estimate.
“In consideration of current site conditions and waste characterization, the TCEQ feels that the cost estimate of $52 million is appropriate," Clawson said.
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To reach David Crowder, write to dcrowder@epmediagroup.com or call (915) 351-0605, ext. 30
