THE BATTLE FOR ASARCO’S AIR PERMIT


Terminology in article: Smelter
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In 1999, one year following the EPA consent decrees, ASARCO closed the El Paso plant, citing the falling price of copper as the reason for the closure. The company’s official position was that the closure was temporary, but indefinite. The announcement shocked the community. Asarco workers remember the day the closure was announced, and the bewildering rush of emotions they felt. Many went back to school to learn new skills; others sought new jobs (i).

In 1999 Asarco was purchased by its Mexican subsidiary, Grupo Mexico, making Grupo the third-largest copper producer in the world. In 2002 Grupo purchased Asarco’s lucrative Peruvian mining affiliate, Southern Peru Copper Corporation, for what the U.S. courts later determined to be a below-market price. As Asarco’s assets were transferred across the border to Grupo’s books, the Justice Department warned that Asarco might be contemplating bankruptcy. An Asarco bankruptcy would have jeopardized cleanups that had previously been negotiated at Asarco sites throughout the country. As a condition for allowing the sale of Southern Peru Copper, the DOJ required Asarco to establish a $100 million trust fund to support its clean-up activities.

In 2002 ASARCO applied to the Texas Commission on Environmental Quality to renew the air permit which allowed the company to operate. But by this time conditions in the community had changed. El Paso had been relatively free of sulfur dioxide emissions for three years. Former workers had begun to focus on unexplained medical problems that began while working at the smelter. Linkages were developing between the working class communities and environmental groups in El Paso, Juarez and nearby Sunland Park, New Mexico, and people had begun to educate themselves about the dangers of Asarco’s emissions. The University of Texas at El Paso was found to have significant levels of lead contamination in its soils. Sunland Park, which had received significant amounts of Asarco’s emissions because of the prevailing winds, was identified as one of the most lead-polluted communities in the nation.

Activists have also become concerned about impacts on ground water and aquifers connected to the Rio Grande River, a source of drinking water and irrigation for both El Paso and Mexico. The Texas Commission on Environmental Quality documented levels of arsenic that are significantly above federal standards for drinking water. Other contaminants of concern that exceed federal standards are lead, cadmium, chromium, copper and selenium (ii).

A coalition formed, fueled by concerned residents, students, environmental activists, former Asarco employees, and public officials. Several groups joined in, including Get the Lead Out (El Paso), the Sunland Park Grassroots Environmental Group, ACORN and the Environmental Center of Juarez. Together they focused their energies on educating their communities about the dangers of Asarco’s emissions and opposing the renewal of Asarco’s air permit. At the University of Texas, El Paso (UTEP), students organized their own movement to oppose Asarco’s air permit, Students Against Asarco.

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In 2005 Asarco entered into Chapter 11 Bankruptcy, citing its environmental liabilities as the primary cause. Operations at its Arizona mines and last functioning smelter in Hayden, Arizona continued. As part of the court process of corporate reorganization Asarco was removed from Grupo Mexico’s control and placed under the control of a board of creditors, which included the company’s main union, the United Steelworkers. During this process Asarco continued to press its case to renew its air permit in El Paso.

In October 2005 an Administrative Court issued a nonbinding ruling that Asarco had failed to prove it would change its pollution practices if granted a new air permit. The court recommended that the Texas Commission on Environmental Quality (TCEQ) reject Asarco’s air permit application.

In January 2006 the Sierra Club released a study linking Asarco’s emissions to soil contamination on both sides of the U.S. Mexico border. The study, conducted by Michael Ketterer, Professor of Chemistry at Northern Arizona University, took 97 soil samples in El Paso, Anapra, New Mexico and Ciudad Juarez, and concluded that the lead in the soil had the same “fingerprint”” (lead isotope ratio) as the lead in ore received from Asarco’s Santa Eulalia mine (http://lonestar.sierraclub.org/press/newsreleases/20060131.asp) In May 2007, as the campaign to keep Asarco closed gained momentum, the El Paso City Council voted unanimously to oppose the reopening of Asarco. In June 2007 public officials from El Paso, Sunland Park and Ciudad Juarez met at Monument One, the international area next to the Rio Grande River, and signed a resolution opposing the renewal of Asarco’s air permit.

In 2006 researcher and teacher Heather McMurray obtained a copy of the EPA confidential memo about Asarco’s “sham recycling.” For the first time the community had hard evidence that Asarco had illegally incinerated hazardous waste its El Paso and East Helena, Montana smelters. In an interview Ms. McMurray explained:

We know that Asarco had a subsidiary, Encycle, in Corpus Christi. Encycle processed hazardous waste. It was a recycling center. They were supposed to pull out metals from the product or send the materials to our smelter here or in East Helena that had metals in them that could be smelted out. Instead of doing that they sent us stuff that had no metals value in it. There was no reason, it was not legal for them to send that here without permitting us as a hazardous waste incinerator. But they did it, and finally the EPA caught them. When [the EPA] caught them they kept it secret, they didn’t want to let anyone know. We don’t know why they wanted to keep it secret, but ASARCO smelted the stuff for almost a decade illegally, and then covered it up through the government for another seven-eight years.

Faces Against ASARCO rally, El Paso, TX, September 2007

In fall 2006 the New York Times published a story based on Heather McMurray’s findings: “A bankrupt copper giant facing billions of dollars in pollution claims…pretended for years to recycle metals while illegally burning hazardous waste in a notorious El Paso smelter” (iii).  Since that time members of the border coalition have continued to uncover information relating to Encycle/El Paso’s illegal shipments of hazardous waste to smelters, and the incineration of the waste in Asarco’s stacks.

Despite 6 years of hard work by environmental activists, former Asarco employees, public officials, university students, and residents of El Paso, Juarez and Anapra, the TCEQ, at a final hearing in Austin, Texas, in February 2008, agreed to grant Asarco a renewed air permit, provided that the company could demonstrate that the shuttered plant was still operable and could meet the guidelines set for state emissions.

In April 2008 three years into Asarco’s bankruptcy process, the Arizona Republic reported, “an unprecedented rise in copper prices, bankruptcy and dedicated managers have helped transform…Asarco LLC from a financial train wreck into a solid business with $1 billion in cash, no operating debt and a promising future” (April 16, 2008).

In February 2009 the EPA told Texas officials that under federal law the smelter did not qualify for the permit renewal granted by the TCEQ.

On the same day Asarco announced it was dropping its plan to reopen the Asarco smelter. The company attributed its decision to “a dramatic downturn of the world economy” (Dallas Morning News, February 4, 2009).

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