Senator Eliot Shapleigh - El Paso, Texas

EL PASO — The Texas Commission on Environmental Quality unanimously approved a new five-year air quality permit for a bankrupt Arizona copper company Wednesday.

Tucson, Ariz.-based Asarco Inc. won the permit renewal after a two-hour hearing in Austin.

The commissioners, who said the Texas Clean Air Act gave them little power to deny the permit, did require that the copper company make several improvements to the plant before reopening.

The TCEQ also required that Asarco, which shuttered the plant in 1999 amid a global drop in the price of copper, add air quality monitoring devices around the plant and work with officials in Mexico and New Mexico to monitor its emissions.

Opponents of the permit, including El Paso city officials and state Sen. Eliot Shapleigh, have long argued that allowing Asarco to restart smelter operations in El Paso would pose a serious health risk to residents in El Paso, Juárez and Sunland Park in Doña Ana County.

New Mexico officials, including Gov. Bill Richardson, have gone on the record opposed to the plant's reopening.

In part of his testimony to the TCEQ, New Mexico's Environment Department Secretary Ron Curry said, " ... if the plant had been located a mile to the northwest of its current location, in New Mexico, Asarco would never have been allowed to re-start operations."

Shapleigh, an El Paso Democrat, asked the commission Wednesday for the added air monitors but urged the three-member panel to deny the permit based on what he described as a history of causing pollution.

“One hundred years of Asarco's operation has left this legacy," Shapleigh told the commission. "You will find lead in schools, yards, and homes. My home was one that was cleaned up."

Erich Birch, a lawyer for the city of El Paso, argued that the TCEQ commissioners didn't have the legal authority to grant the permit, based on the ruling of a pair of administrative law judges who presided over a contested case hearing on the permit two years ago.

Pam Giblin, an Austin attorney for Asarco, contested that claim and told the panel that despite the pleas of the city the law and science were on the side of Asarco.

"The permit was recommended by the (TCEQ) executive director," Giblin said. The report Giblin referred to concluded that Asarco would not produce more toxins — including sulfur dioxide, lead, and carbon monoxide — than the permit allowed but also laid out a series of improvements Asarco had to make to reopen.

The commissioners also rejected the city's position.

The commission ordered that Asarco has until July 1 to provide TCEQ with the first update on the mandated improvements and starting Sept. 1 the company will need to provide bimonthly updates. The commission also required that Asarco complete all of its improvements no later than 90 days before restarting smelter operations.