The Battle for ASARCO's Air Permit

Updated: Jan 14

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. The announcement shocked the community. ASARCO workers remember the day the closure was announced, and the bewildering rush of emotions they felt. Some went back to school to learn new skills; others sought new jobs (i).


In 1999 the ASARCO company was purchased by its former Mexican subsidiary, Grupo Mexico. In 2002 Grupo Mexico 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. Through these corporate manoeuvres Grupo Mexico became the third-largest copper producer in the world.


As ASARCO’s assets were transferred across the border to Grupo’s books, the Justice Department warned that ASARCO might be contemplating bankruptcy, jeopardizing cleanups that had previously been negotiated at 99+ sites throughout the United States. As a condition for allowing the sale of Southern Peru Copper to go forward, the government required ASARCO to establish a $100 million trust fund to support the continuation of its clean-up activities.


Then, in 2002, ASARCO announced its intention to reopen the El Paso smelter, and applied to the Texas Commission on Environmental Quality (TECQ) to renew its air permit. ASARCO had every reason to believe that the air permit renewal would be routine, as it had been in the past. But perspectives in El Paso were changing as the city had been relatively free of sulfur dioxide emissions for three years. Former workers had begun to focus on serious medical problems that they traced back to their work at the smelter. Working class communities and environmental groups from El Paso, Sunland Park, New Mexico, and Juarez, Mexico were beginning to share information and create alliances. Local researchers began to investigate the dangers of ASARCO's emissions, and educate their neighbors about them. The University of Texas at El Paso, across the highway from the smelter, was found to have significant levels of lead contamination in its soils. And Anapra, a majority Mexican-American community in Sunland Park, was identified as one of the most lead-polluted communities in the nation. This community, located on the outskirts of El Paso, stood directly in the path of the prevailing winds that blew towards the northwest from the smelter.


Environmental activists were also concerned about the impacts on ground water and aquifers connected to the Rio Grande River, a major source of drinking water and irrigation for Texas and Mexico. In water quality tests, the TCEQ had documented levels of arsenic that were significantly above federal standards for drinking water. Other contaminants of concern exceeding federal standards were lead, cadmium, chromium, copper and selenium (ii).


A coalition formed, fueled by concerned residents, environmental activists, ex-ASARCO employees, and public officials. Several groups participated, including: Get the Lead Out (El Paso); the Sunland Park Grassroots Environmental Group; ACORN (Association of Community Organizations for Reform Now); 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. The city of El Paso and State Senator Eliott Shapleigh also opposed the reopening of ASARCO. At the University of Texas students organized their own movement, Students Against ASARCO, to oppose ASARCO's air permit.



To deal with the unexpected resistance to the reopening of ASARCO, the TCEQ scheduled Administrative Court hearings in El Paso. At a 2005 hearing, the attorney for the city of El Paso explained that although the city had supported a previous air quality permit in 1992, new disclosures about soil contamination had required them to change their position and oppose the permit [iii]


In 2005, in the midst of air permit hearings, ASARCO filed for Chapter 11 bankruptcy, citing its environmental liabilities as the primary cause. A Chapter 11 bankruptcy is a corporate reorganization, designed to relieve a company of debts and liabilities so it can stay in production and increase profits. As the bankruptcy court deliberated, ASARCO continued to operate its Arizona mines, its Amarillo, Texas refinery, and its last U.S. smelter in Hayden, Arizona. As part of the bankruptcy process, ASARCO was removed from Grupo Mexico’s control and placed under the authority of a board of creditors which included the company’s main union, the United Steelworkers.


In October 2005 the Texas Administrative Court issued a non-binding ruling that ASARCO had failed to prove it would decrease its emissions if granted a new air permit. The court recommended that the 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, and Ciudad Juarez, and concluded that the lead found in the soil had the same “fingerprint”” (lead isotope ratio) as the lead in ore received at the. smelter from ASARCO’s Santa Eulalia mine. 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 alongside the Rio Grande River, and signed a resolution opposing the renewal of ASARCO's air permit.


In 2006 researcher and teacher Heather McMurray exposed ASARCO's practice of "sham recycling." McMurray was able to obtain a copy of an EPA confidential memo that detailed ASARCO's systematic processing of hazardous waste from its subsidiary, Encycle, in Corpus Christi, to its El Paso and East Helena Montana smelters. Ms. McMurray explained:


"Encycle was a recycling center. They were supposed to pull out metals from the product or send 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.


"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. ASARCO

smelted the stuff for almost a decade illegally, and then covered it up through the government for another seven-eight years." [iv]


In fall 2006 the New York Times published a story based on Heather McMurray’s research.



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. [v]


McMurray's discovery galvanized and enraged the El Paso community. Workers, some of whom had contracted rare diseases that are often considered to be environmentally induced, demanded that ASARCO acknowledge responsibility for its illegal practices. Workers remembered materials that they described as "wet and heavy, like blue slushies"[v], that brought the conveyor belts to a standstill. 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.


Faces Against ASARCO, September 2007. Activists gather for a photograph demonstrating their opposition to ASARCO's air permit

In February 2008, despite six years of hard work by environmental activists, ex-ASARCO employees, public officials, university students, and residents of El Paso, Juarez and Anapra, the TCEQ, at a final hearing in Austin, Texas, agreed to grant ASARCO a renewed air permit, provided 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 air permit renewal granted by the TCEQ.


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


Sources:

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Hayden, AZ
Northport, WA
Ruston, WA
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