Senator Eliot Shapleigh - El Paso, Texas

The ASARCO permit renewal hearing commenced on July 11th, 2005 at the Downtown Courthouse 500 E. San Antonio, 12th floor. Per the Texas Commission on Environmental Quality (TCEQ) order, the Administrative Law Judges (ALJs) presiding over the case were limited to hearing testimony on only the following two issues: 1) Will the ASARCO permit renewal adversely affect air pollution in El Paso and, 2) Does the El Paso smelter have a satisfactory compliance history which would warrant renewal of their existing permit for an additional 10 years.

Issues not allowed to be presented at this hearing are: 1) evidence relating to existing contaminants in the soil (even though the EPA has found ASARCO to be the primary responsible party for the lead and arsenic contamination), 2) health issues associated with long term exposure to ASARCO’s emissions, 3) compliance issues for ASARCO during any period other than 1994-1999.

In spite of the limited nature of the hearings, effective representation by attorneys collectively representing more than fifty (50) affected parties who oppose the permit has made the hearing a landmark event.

Here are the highlights:

On the first day, Larry Castor 29 year employee of ASARCO and El Paso plant manager during the compliance period under consideration in this hearing testified that in the 6 years of operation, from1993 until operations ceased in 1999, ASARCO only assessed (monitored) their total emissions two (2) times. Both times, ASARCO reported to the Texas Commission on Environmental Quality (TCEQ) that they exceeded emissions of toxic materials from 2 to 11 times the amount allowed by the permit—and yet no punitive action was taken. Examples of ASARCO’s emission violations are: 1) ASARCO’s 1992 permit which allowed the release of 50,000 pounds per year of Carbon Monoxide, yet ASARCO consistently released almost 10 times that amount for many years. Likewise, ASARCO’s 1992 permit allowed about 3,000 tons per year of sulfur dioxide, but by 1994 it was releasing about 6,500 tons per year.

Equally as disturbing as the compliance violations is the lack of adequate, objective monitoring of the ASARCO facility by the TCEQ.

When discussing the lack of testing and monitoring of ASARCO’s emissions, plant manager Larry Castor said, “I don’t think they (the TCEQ) ever really required us to test at all.” His further testimony which supports this conclusion was: 1) Mr. Castor could not testify about any specific day or interaction he had with representatives from the TCEQ; 2) he testified that he couldn’t recall TCEQ being present or overseeing either of the only two smokestack air emission tests ASARCO ever performed during this six-year period; 3) TCEQ typically gave ASARCO advance notice when they were coming to perform plant inspections; and 4) Mr. Castor said his own knowledge of the permit requirements came, not from reading the permit but from being told by someone else what was required.

Mr. Jim Kelly, member of the Get the Lead Out Coalition commented, "The bottom line is, the level of pollution is far too high and the level of monitoring is far too low."

The most startling indictment of ASARCO operations came from retired attorney Taylor Moore who disclosed an EPA (Environmental Protection Agency) document indicating that ASARCO had stored and processed "hazardous wastes" without a permit. In spite of three-days worth of questioning ASARCO representatives, no conclusive information about the hazardous wastes has been gained. Consistently, ASARCO representatives have claimed they, “did not know it was hazardous waste.”

Ms. Yvette Ramirez Ammerman, BOD President of the Get The Lead Out Coalition stated, “In short, this hearing is precedent setting. ASARCO has done everything they can to prevent this hearing, they filed two motions in the Travis County District Courts and when unsuccessful tried to pass a bill in the Texas Legislature that would have prevented this case from being heard. But here we are, and here is our opportunity to do what we can to ensure that our community never has to be exposed to the toxic contaminants from ASARCO emissions again."