From the Senator's Desk . . .
June 12, 2008
Recently, I wrote to EPA Administrator, Steve Johnson, to ask for answers on who will clean up the ASARCO mess in El Paso. ASARCO has declared one of the nation's largest environmental bankruptcies. By shedding environmental liabilities through a Chapter 11 filing, ASARCO is attempting to saddle taxpayers with the costs.
Written by Senator Eliot Shapleigh, www.shapleigh.org
"Who Will Clean Up the Lead?"
We want to know who will clean up the 100 year legacy of ASARCO lead and arsenic in our community.
As we know, ASARCO has declared one of the nation's largest environmental bankruptcies. As of October 2007, ASARCO had pending nearly $11 billion in environmental claims. ASARCO has left communities in 75 communities in 16 states with environmental liabilities, which are the subject of the pending Chapter 11 bankruptcy in filed in Corpus Christi, Texas. Many observers across the country view this case as a prime example of future bankruptcies to come.
By shedding environmental liabilities through a Chapter 11 filing, ASARCO and other similarly situated companies will attempt to saddle taxpayers with future remediation costs.
Unfortunately, one of the regions most affected is our community of El Paso, along with Southern New Mexico and Juárez, Mexico. With respect to ASARCO's operation in El Paso, here are the facts:
- In the early 1970s, children living near the smelter were found to have very high blood-lead levels, resulting in the relocation of the families and the razing of their homes.
- After an initial EPA survey limited to a 3 kilometer radius, ASARCO was found to have contaminated at least 1,097 El Paso homes and businesses with lead and arsenic.
- Between 1992 and 1997, ASARCO illegally burned hazardous waste in their El Paso smelter. ASARCO and its Corpus Christi subsidiary, Encycle, had a permit to extract metals from hazardous waste, but instead simply sent it to El Paso to be burned in an attempt to save money. As a result, more than 5,000 tons of waste was illegally burned in our city, including more than 300 tons of chemical warfare agents from the Rocky Mountain Arsenal outside Denver, Colorado. ASARCO thus was fined $20 million by the EPA in 1999.
- Standing unified in opposition to the reopening of the smelter are Governor Bill Richardson, Congressman Silvestre Reyes, and the mayors of El Paso, Juarez, and Sunland Park, amongst others. The reopening of ASARCO will define the region, and particularly El Paso, for the next generation. We will brand ourselves either as a polluted city dependent on 19th century industry or a clean city on the move in a 21st century economy.
With ASARCO's money-making assets being auctioned in bankruptcy court, we have serious concerns about on- and off-site lead contamination in El Paso. We are also very concerned that both the EPA and the negligent TCEQ will leave El Paso landowners and taxpayers with significant liabilities because their interests were not adequately protected in the bankruptcy. Our community should demand that we be protected from the lead, arsenic, and other pollutants that have been deposited in our air, soil, and water over the past century.
In this regard, I have written to EPA Administrator, Steve Johnson, to ask that he provide us written answers to the following questions:
1. If ASARCO assets are indeed sold as a result of the ongoing bankruptcy, will the EPA secure via the creation of a trust or other means all on-site liabilities? In other words, will ASARCO or any subsequent owners of the ASARCO property be required to clean up all on-site liabilities or place in trust sufficient funds to ensure such a clean up? Or will the EPA allow ASARCO to pass the buck to my community's taxpayers, local home owners, and local businesses?
2. If ASARCO assets are indeed sold as a result of the ongoing bankruptcy, will the EPA secure via the creation of a trust or other means all off-site liabilities? Please note the EPA map below, which shows the lead contamination in El Paso.
Click here to view larger image.
For years, an El Paso-based fertilizer company, Ionate, sold a fertilizer that was used on the lawns all across our community. This fertilizer was laden with lead, arsenic, and other hazardous heavy metals. The now out-of-business company used slag from the Oglebay Norton slag-crushing company in west El Paso as part of the fertilizer. Oglebay Norton obtained the slag, a byproduct of the smelting process, from ASARCO. The fact is the EPA's initial survey stopped at 3 kilometers and never established the eastern boundary of lead contamination in El Paso. We don’t know the full extent of lead on yards in El Paso, but it is significantly more than what ASARCO reports in the Corpus Christi bankruptcy court. Thus, will ASARCO or any subsequent owners of the ASARCO property be required to clean up all off-site liabilities? Or will the EPA allow ASARCO to pass the buck to the local taxpayers?Our research indicates that Tacoma, Washington was in a similar circumstance. Tacoma was home to an ASARCO copper smelter that contaminated an area demonstrated to cover over 1,000 square miles. The map on the following page shows the extent of contamination in the northwest Washington area.
Maximum Lead Concentration at Tacoma Smelter Plume ample Locations (King and Pierce Counties)
Click here to view larger image.
In June 1984, ASARCO announced that it would be closing the copper smelter, which by that point was the nation's largest source of arsenic pollution. At the time, an ASARCO vice president claimed that the smelter was closing due to depressed copper prices and "federal, state, and local environmental regulations …" ASARCO never completely cleaned up the property, despite a 1997 consent decree between the company and EPA mandating cleanup of the uplands portions of the smelter property. Further, a 2000 EPA administrative order required ASARCO to permit sediment and groundwater work, much of which was not completed as of 2006.Fortunately, the federal government recently reached an agreement with ASARCO that will allow the company to sell the smelter property with a Washington-based developer. The developer intends to clean up the land to residential environmental standards and then undertake residential and commercial development on the property. As Granta Nakayama, EPA's assistant administrator for Enforcement and Compliance Assurance said, "[t]he cleanup and redevelopment of this land is a win all around. It enhances the environment, improves the local community, and promotes economic development."
Omaha, Nebraska was also subject to the toxic pollutants spewed from ASARCO smokestacks. From 1899 to 1997, ASARCO operated a lead refinery in the heart of Omaha, Nebraska. While the refinery was at one point the largest employer in Omaha, ASARCO eventually became the only smelter or refinery in town. When Mayor Hal Daub took office in 1995, he pinpointed the ASARCO plant as a major impediment to the revitalization of a downtown area that was "dying," in Daub's words. This "contaminated and polluted" 800 acre area of the city was "just sitting there except for the ASARCO plant." On December 31, 1997, the ASARCO facility ceased operations and began the process of demolition, which was completed in late 1999. Through the closure of the ASARCO facility, the once contaminated and polluted area of downtown is now vibrant, serving as the location of the city's convention center, the Qwest Center Omaha.
In 1998, the Omaha City Council solicited help from EPA in addressing problems with lead contamination in Omaha as a result of ASARCO's pollution. According to the EPA, during ASARCO's operational period, "lead and other heavy metals were emitted into the atmosphere through smoke stacks and fugitive emissions from plant activities." ASARCO left a cleanup so large that had to be addressed through federal action. In April 2003, the EPA placed Omaha on the National Priority List for Superfund cleanup, making it the largest residential Superfund site in the country. As of this month, EPA had tested over 32,000 residential properties since March 1999, with cleanup consisting of the removal and replacement of contaminated soil.
Based on the length of ASARCO's operations in Omaha, Tacoma, and El Paso, we believe that the footprint of contamination in El Paso is far larger than the EPA has reported. For example, in Tacoma, the state is dealing with 1,000 square miles of contamination. In Omaha, over 32,000 properties were tested. Compare this to the 3 kilometer testing radius and fewer than 3,700 properties tested in El Paso. Given the fact that no eastern boundary of lead contamination has been established and the history of using pollutant-laden slag as fertilizer, we want to know the true extent of lead and arsenic contamination in our region.
We are also troubled by the differences in lead cleanup standards. In Omaha, the lead screening standard was 400 parts per million (ppm). Yet in our community of El Paso, it is 500 ppm.
Further, the chart on the following page highlights the disparities in the number of residential properties tested and remediated at the three ASARCO-impacted locations:
Residential Properties Tested and Remediated at ASARCO-Impacted Sites
|
| Properties Tested | Properties Remediated |
| El Paso, Texas | 3,683 | 970 |
| Ruston, Washington | 3,717 | 2,150 |
| Omaha, Nebraska | 32,669 | 3,815 |
Source: EPA
We see a close similarity between those disparities in lead cleanup standards and other "standards" for majority Hispanic areas in the United States. In a 1990 investigation of an ASARCO smelter in Hayden, Arizona, William E. Craig, an ASARCO worker with the Local 886 Steelworkers Union, found that Mexican-Americans who received OSHA physicals had their results falsified to show healthier results than those actually collected. He reported:
Basically, if a Hispanic employee has a pulmonary function of 85% of capacity, when using the Company's [ASARCO's] method, this employee is still rated as having 100% of pulmonary function because of the 15% margin the Company has infact [sic] self-imposed upon all Hispanics being tested at this time.A year before, Dr. David K. Parkinson, with the SUNY-Stony Brook School of Medicine, delivered a letter to the medical director for ASARCO, Dr. Charles Hine, raising the identical concern. Dr. Parkinson wrote:
… I noted that the predicated values in Hispanics were being reduced by 15%. I do not know of any literature which supports this practice except in Blacks and I would be grateful if you could comment on this practice and provide any literature documenting the 15% reduction.In response, ASARCO's medical director, Dr. Hine, is quoted by Arizona Republic columnist E.J. Montini as saying, "Blacks had better performance (in lung-capacity tests), and we put the Hispanics closer to blacks. … Somebody had studied it—a long time ago."
With these practices allegedly in effect so recently as twenty years ago, former workers may be suffering health consequences today which may have been avoided—but for the color of their skin. We have enclosed relevant documents for your review. Why then should the cleanup standard in a Hispanic community be 25 percent less effective than that in Omaha?
With this history in mind, we are asking what the EPA will do to ensure that our three state region will be cleaned up? We want to know what we can expect from our EPA.
The cash in ASARCO's bankruptcy is our last chance to clean up a 100 year old mess.
Eliot Shapleigh