Senator Eliot Shapleigh - El Paso, Texas

Asarco failed to prove it would not pollute El Paso’s air if its state air permit is renewed, according to a recommendation issued Thursday by the Texas State Office of Administrative Hearings.

The conclusion of the administrative judges who presided over the contested-case hearing, William Newchurch and Veronica Najera, recommends that the Texas Commission on Environmental Quality “adopt the findings of fact and conclusions of law, in the attached proposed order concluding that Asarco failed to prove that its operation under permit 20345, if renewed, would likely not cause or contribute to air pollution, or that its compliance during its last five years of operation under that permit warrants renewal.”

Newchurch, who signed the document, declined to comment. “We prefer to let our written product speak for itself,” he said.

Eric Groten, the lead lawyer representing Asarco, said he disagrees with the judges’ opinion, which he called a proposal. He said the judges’ reluctance to recommend renewing the permit appears to stem from a disagreement over the air-modeling methods the smelter presented for its case during the hearing in June.

“We are in unchartered territory ... no one ever before has been asked to do this ... to get a permit renewal using new air modeling methods,” he said.

Lairy Johnson, environmental manager for Asarco’s El Paso plant, said, “Asarco will review the decision and take the steps that are necessary to protect our investment in people, plant, property and land.”

The judges’ “proposal for decision and order” is about 200 pages long, and the cover page says that the parties to the hearing can file exceptions or legal briefs. The replies to these must be completed by Nov. 28. The environmental commission in Austin will have the final say. No date has been set for the commission’s hearing on Asarco.

El Paso’s mayor, the Sierra Club and state Sen. Eliot Shapleigh, D-El Paso, welcomed the news.

The judges’ findings “confirm what we all feel — 7,000 tons of new pollutants will hurt our future,” said Shapleigh, who is opposed to Asarco’s resuming its copper smelter operations.

He said Thursday’s recommendation is not binding and is meant as guidance for the commission, whose own staff has recommended renewing Asarco’s air quality permit.

Mariana Chew, of the Sierra Club in El Paso, and Oliver Bernstein, of the Sierra Club in Austin, praised the proposal.

“This is major victory for the citizens of El Paso, neighboring Juárez and New Mexico,” Chew said.

Bernstein added that Thursday’s “decision is the first step toward a healthier El Paso.”

Mayor John Cook said the city’s lawyer for the case will submit an analysis to the city as soon as he is finished reviewing the lengthy document.

“It’s exciting news for El Paso,” Cook said. “This will be very important to us for assuring our attainment of air pollution standards in the future.”