Asarco Criminal Allegations Sent to TCEQ
October 29, 2007
El Paso County Attorney Jose Rodriguez announced recently that he is asking the state environmental agency to review the possibility of criminal charges against Asarco stemming from alleged violations in the "transportation, storage, and disposal of hazardous wastes."
Written by Sito Negron, Newspaper Tree
El Paso County Attorney Jose Rodriguez announced Monday that he is asking the state environmental agency to review the possibility of criminal charges against Asarco stemming from alleged violations in the "transportation, storage, and disposal of hazardous wastes."
Under state law, the Texas Commission on Environmental Quality must review charges referred to the agency by a licensed peace officer. Rodriguez was requested to make the referral by Get The Lead Out, a coalition that opposes the reopening of Asarco.
The TCEQ has 45 days to make a decision whether to pursue administrative penalties, criminal penalties, or decline to pursue the matter. TCEQ officials were not available for comment late Monday.
Rodriguez said he decided to refer the matter because Asarco had a poor track record of compliance with both environmental laws and with abiding by penalties.
"After six weeks of reviewing the information, the abundant information, I might add … the peace officer in my office concluded there was sufficient information (to refer the complaint)," Rodriguez said at a news conference Monday. "Asarco has not complied with the original or modified decree in 2004."
He said he could not answer questions about the specifics of the complaint because "I am speaking today as a prosecutor and cannot go into detail."
Critics of Asarco say the company used its Contop smelter to burn hazardous waste shipped from Encycle, an Asarco subsidiary in Corpus Christi.
The issues were raised in a 1999 Consent Decree, a document in which Asarco does not admit to any wrongdoing but agrees to pay fines and take other corrective actions. During its investigation of that and other public records associated with oversight of Asarco, a member of GTLO found a memo that was used by investigators as part of their case against Asarco.
The memo alleged that Asarco was engaged in "sham recycling," in which it sent product from Encycle to facilities in El Paso and East Helena, Mont. The product was meant to be byproducts that contained enough copper material to make it worthwhile to Asarco to "recycle," but investigators alleged the amount of ore was too negligible to recycle.
The consent decree, which covered Asarco activities in several jurisdictions, called for the company in El Paso to pay $1.85 million to pave streets and for it to take other corrective actions at the smelter.
The company has disputed the characterization of its activities as "burning hazardous waste," stating that "no wrongdoing was found" in the final Consent Decree, which involved state and federal investigators.
"These governmental entities had the authority to choose between civil, criminal, or administrative enforcement and they chose civil, based on the merits of the case. In addition, no wrong doing was found regarding the procedures followed by the Asarco El Paso Plant," the company stated in an October news release.
Asarco paid less than half the $1.85 million when it went into bankruptcy.
The company in a different statement said that it offered to make monthly payments on the balance, but the city refused that method of payment. "The remaining balance is not subject to the bankruptcy process," the Asarco statement read.
Monday, Asarco responded the Rodriguez's news conference by questioning whether he had a conflict. The company released a video of an anti-Asarco rally Jan. 8, 2005, and a statement.
"The video shows the county attorney participating in an anti-Asarco rally and clearly demonstrates a conflict of interest in his decision making that should have been disclosed to the public," read the statement, which also questioned the role of Assistant County Attorney Lee Shapleigh, who is married to state Sen. Eliot Shapleigh, a leader in the anti-Asarco campaign.
Rodriguez could not be reached for comment late Monday, but his office released a statement responding to the charge: “The County Attorney takes his duties and responsibilities very seriously and he does not agree that there is a conflict of interest. The matter has been referred to the appropriate state agency which will be making the determination, not the County Attorney, as to whether Asarco should be criminally prosecuted.”
(click on the clipboard below for a copy of the criminal enforcement review referral.)
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