September 28, 2007
The County Attorney is reviewing criminal charges against Asarco related to the company's disposal of hazardous waste during the 1990s. A group opposing Asarco, Get The Lead Out, has invoked a state law that allows any peace officer to refer charges to the Texas Commission on Environmental Quality, in asking the County Attorney to review and refer the complaint.
Asarco, which is in the middle of a fierce battle to renew its air pollution permit, disposed of hazardous waste from a subsidiary company, the now-closed Corpus Christi-based Encycle. Encycle sent the material to two Asarco facilities, in El Paso and in East Helena, Mont., government investigators found. Because it was "unmanifested," it's unclear exactly what and how much was sent to either location, but government reports indicate that the material included an unknown amount of waste from a government chemical weapons depot in Colorado.
In 1999, Asarco entered into an "agreed order," in which it does not admit to wrongdoing but agrees to a series of steps -- including fines -- in order for the government to drop the case. Asarco has characterized the issue as mere paperwork violations, and never has admitted to burning hazardous waste illegally, although some government documents use strong language in describing Asarco's activities. [august 2005 npt background] [october 2006 npt background]
In El Paso, that order called for the company to spend $1.8 million on a "supplemental environmental project." That means a project that mitigates the effect of pollution in some way -- in the case of El Paso, the agreement was for Asarco to pave streets and alleys as a way to reduce pollution from dust caused by vehicles rolling over dirt, one of the main sources of the air contaminant known as particulate matter. [march 2005 npt background] (Editor's note: the amount of the paving contract was corrected Oct. 1, 2007)
County Attorney Jose Rodriguez said he was reviewing the matter and would have an answer "within a few days."
Asarco's lawyer said the issue was an old one.
“There they go again. Asarco’s opponents have repeatedly asked regulators to revisit matters that have been resolved. The allegation was investigated nine years ago by the Texas Commission on Environmental Quality and the U.S. Environmental Protection Agency experts and the Department of Justice who have administrative, civil and criminal authority," said Doug McAllister, general counsel of Asarco LLC. "The matter was settled in a civil consent decree without any mention of wrong doing for the Asarco El Paso Plant or Encycle. The bottom line is that Asarco’s El Paso Plant has never illegally transported, treated, stored or disposed of hazardous waste. Asarco continues to meet its compliance as well as legacy environmental obligations from 100+ years of operation.”
However, the complaint given to Rodriguez notes a provision from the consent decree, on page 109, which states that the decree shall "not be construed as a covenant not to sue, release, waiver or limitation of any right."
Because the exact amount and nature of the waste sent from Encycle to El Paso has never been made clear, Asarco opponents and others have asked for an accounting to make clear the extent of the issue.
Congressman Silvestre Reyes has asked for a General Accounting Office report describing how military material from closed facilities is handled, a request that has not satisfied those who want to know the nature and extent of what was sent from Encycle to El Paso.
Jim Kelly, a member of the Get the Lead Out group, and a signator on the letter asking Rodriguez to refer the matter as a criminal complaint, said that "the compliance history is abysmal, it's horrible. This is an exercise in A, bringing that point home and, B, if it is proven in a court or in this investigation that takes place in fact it was criminal, we want them to stop. I want them to clean up the soil outside their property, and for them to stop operating."
He noted that Asarco hadn't paid its obligation to El Paso. The company has claimed that its bankruptcy superseded the agreement, and the city of El Paso has filed a $1.1 million claim in bankruptcy court. The complaint given to Rodriguez notes that page 58 of the consent decree states that Asarco's "inability to maintain financial security" shall not excuse it from the conditions of decree.
"These guys illegally burn hazardous waste for seven years, make a deal behind closed doors … then don't pay," Kelly said.
McAllister blamed the city for failing to work with Asarco to find a solution.
"Prior to Asarco filing for Chapter 11 reorganization under the federal bankruptcy code and during a time of financial difficulty, Asarco nevertheless offered numerous financial alternatives to the City of El Paso to meet our SEP obligation," he said. "The majority of our obligation would have been paid prior to Asarco filing for bankruptcy if the city had accepted any one of the Asarco alternatives. Now this claim is part of the Chapter 11 bankruptcy legal process."
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Sito Negron can be contacted at sito@epmediagroup.com, or at 915.351.0605.