Senator Eliot Shapleigh - El Paso, Texas

AUSTIN -- The Texas Commission on Environmental Quality on Monday voided controversial air quality permits that Asarco fought for years to obtain, officially ending the company's bid to restart its copper smelter in El Paso.

Environmental advocates said now the focus of their struggle will be to ensure that El Paso taxpayers don't wind up footing the bill to clean up a century's worth of pollution at the Asarco site.

"It's the polluter that should pay for the cleanup," said Sierra Club spokesman Oliver Bernstein.

While the TCEQ and Asarco propose the cost to clean up the site could be about $50 million, others worry the cost could be five times that. And if a federal court doesn't require Asarco to put enough money aside to clean up the Asarco pollution, Bernstein said, taxpayers will have to make up the difference.

A federal bankruptcy court is now weighing a proposal from the TCEQ that would require Asarco to put $52 million into a trust fund that would be used to clean up pollution from the smelter.

That estimate is based, at least in part, on numbers provided by consultants and engineers at Asarco.

The TCEQ would monitor the cleanup and oversee work on the site, said Terry Clawson, an agency spokesman.

"We'll have to approve the plan," Clawson said.

Tom Kelley, a spokesman for the Texas attorney general's office, which represents TCEQ in the bankruptcy proceedings, said a ruling on the plan is not expected for at least a month.

State Sen. Eliot Shapleigh, D-El Paso, said he doesn't trust the TCEQ's cost estimate and wants the U.S. Environmental Protection Agency to step in and ensure that Asarco is held liable for cleaning up lead, arsenic and other toxins at the smelter site.

"If there's ever a case the TCEQ has boggled, it's this one," Shapleigh said.

He pointed to a Feb. 3 letter from the EPA to the TCEQ informing the agency that it had erred in granting Asarco the air quality permits that would have allowed it to restart operations in El Paso.

That letter came on the same day Asarco officials announced they would shutter the plant because of economic conditions.

The fight over the Asarco plant has been one of the most hotly debated issues in El Paso in recent years. Opponents charged that tons of pollutants would be spewed on El Paso if the plant were allowed to open. Supporters of Asarco argued the plant would be modern, clean and generate good-paying jobs.

Shapleigh said EPA officials in the past have estimated the cost of cleanup at the Asarco site could be $250 million.

Cost estimates for cleaning up other Asarco sites in Washington and Nebraska, he said, have been closer to that figure, also.

If Asarco doesn't put aside enough money, he said, taxpayers would end up paying to clean up the company's mess.

"We can't have our future be in TCEQ's hands," Shapleigh said.