EL PASO -- Some of Asarco's harshest critics in El Paso say the $52 million planned to remove contamination in El Paso is not nearly enough.

And they are asking the EPA to schedule a new public hearing to help settle the issue.

Sen. Eliot Shapleigh, D-El Paso, said the $52 million to remove El Paso's contamination is insufficient, and the true cost is closer to $250 million.

Shapleigh says the $52 million remediation plan for the El Paso copper smelter "does not include 250 acres of contiguous property owned by Asarco but not located at the (main) 100-acre smelter site."

Shapleigh and others who fought against Asarco's restarting smelter operations are asking the Environmental Protection Agency to conduct a public hearing in El Paso to address this and other issues.

Juliet Lozano, spokeswoman for Mayor John Cook, said "the city believes there should be a hearing in El Paso, and we are working with EPA to schedule one."

The EPA, which is seeking comments from the community, has not decided whether to convene a hearing.

Lozano said the city of El Paso has accepted the $52 million level for cleanup, and is waiting on a pending settlement to go through involving Asarco, the EPA and the Texas Commission on Environmental Quality.

Under the settlement, Lozano said, "the smelter property would be transferred to a custodial trust for cleanup and disposition by an independent trustee, the smelter would not reopen as an operating smelter, Asarco would no longer control or own the smelter, and the custodial trust would be funded with $52 million in cash from Asarco for cleanup."

Tucson-based Asarco LLC, through a spokeswoman in El Paso, said it cannot comment on issues involving litigation or pending before the U.S. Bankruptcy Court in Corpus Christi.

This week, the court said Sterlite Industries Ltd., India's largest copper producer, can buy Asarco for $1.1 billion and a $600 million note, but Grupo Mexico of Mexico City said it wants to reassume control of Asarco and offered $1.3 billion for its former subsidiary.

Asarco repeatedly has denied the smelter is responsible for the lead and arsenic contamination the EPA found in more than 1,000 residential and business properties in West and South El Paso. Asarco said the most likely culprits are pesticides containing arsenic, lead-based paint, leaded gasoline and slag, a smelting byproduct.

Exposure to high levels of lead can cause developmental problems in children, and arsenic poisoning can lead to certain cancers, according to health experts.

Get the Lead Out, a grass-roots organization in El Paso, is also asking for the smokestacks to be demolished, before another smelting operation moves in.

Water contamination

El Pasoans Juan Garza and Heather McMurray have fought for more than five years against the reopening of the smelter. Among other things, they and other activists want regulatory agencies to ensure that lead and arsenic from the plant site won't spill into the river again.

Since the fight over the smelter's air permit began, TCEQ addressed only the question of whether restarting the smelter would pollute El Paso's airshed. During the proceedings for Asarco's air permit renewal, the state agency did not consider soil and water contamination issues.

For example, a 2006 lab report by El Paso Water Utilities showed excessive levels of arsenic (404 parts per million/milligrams per liter), cadmium (67.4 ppm), lead (2,800 ppm) and mercury (1.09 ppm) were found in soil at the Asarco entrance about six weeks after El Paso experienced a major flood. The report said the substances came from Asarco's plant site, and the city took charge of the matter. The acceptable levels for these substances, respectively, are 0.01 ppm, 0.005 ppm, 0.015 ppm and 0.002 ppm.

A second report by the former Texas Water Commission in 1990 warned about the need to shore up the protective runoff structure at Asarco to prevent contaminants from spilling into the river in case of a 100-year-flood event, such as the flooding of August 2006.

A third report, one by EPA in 1997, said Texas state officials had found large concentrations of arsenic in El Paso's groundwater from discharges at the smelter.

Christina Montoya, spokeswoman for El Paso Water Utilities, said the water from the Rio Grande is safe to drink because it is treated thoroughly at the city's plants before it reaches water customers. Although the 2006 report mentions the Franklin Canal, the samples were actually taken from soil, she said.

"During the 2006 flood, the city shut down its water treatment plants," Montoya said. Utility chemical analysis reports are published each year, and they show no contamination with these four metals.

The U.S. International Boundary and Water Commission, which oversees water treaties with Mexico, filed a claim against Asarco in the U.S. bankruptcy court alleging soil and groundwater contamination "related to the historic operations of the [Asarco] smelter."

The IBWC claim seeks unspecified money to clean up the area within the American Canal and the IBWC field office across Paisano Drive from Asarco.

The smelter, which began operating 110 years ago, sits on top of a hill in West El Paso next to the river and across the border from Juárez; it has been dormant since 1999.

Contaminated soil

The saga over Asarco began in the early 1990s, when students and other researchers at the University of Texas at El Paso and New Mexico State University conducted tests at the UTEP campus, which is near Asarco. They found excessive levels of lead and arsenic in the soil.

Shapleigh, who became the principal catalyst in the battle to shut down Asarco, became interested in their findings. After talking to them, he convened a group of officials from EPA, TCEQ (then called Texas Natural Resource Conservation Commission), the former El Paso City-County Health and Environmental Department and the Texas Department of Health.

The group asked EPA to examine the potential health risks to El Pasoans, and the agency set a three-mile radius from the smelter for the evaluation.

EPA tested 1,944 properties, and found some with arsenic levels as high as 81 parts per million and lead levels as high as 1,700 ppm. For the cleanup, EPA set thresholds at 24 ppm for arsenic and 500 ppm for lead.

The federal agency also said Asarco was potentially responsible for the soil contamination, which Asarco vehemently denied.

The cleanup process began with money from a $100 million environmental trust fund agreed to by Asarco, EPA and the U.S. Justice Department.

In 2002, Asarco applied with the TCEQ to renew its air quality permit, which would allow it to emit pollutants into the air, including lead, carbon monoxide, sulfuric acid and sulfur dioxide.

After considerable pressure from the community, TCEQ agreed to conduct a contested-case hearing on the permit request in El Paso in 2004.

Opponents complained the hearing focused only on air pollution, and did not allow testimony on water and soil contamination. TCEQ also limited its consideration to El Paso, and excluded testimony on how the emissions would affect residents in neighboring Juárez and New Mexico.

El Pasoan Mariana Chew, an environmental engineer and Sierra Club member, said TCEQ officials ignored the 1983 La Paz Agreement, an accord between the United States and Mexico that calls for cooperation on environmental issues along the U.S.-Mexico border.

The city of El Paso formally joined the opposition against the permit renewal, while New Mexico officials, including Gov. Bill Richardson, and Juárez city officials, also came out against the permit.

El Paso city officials spent more than $1 million on its legal case against Asarco, but last year the TCEQ's three appointed commissioners voted in favor of renewing the air permit.

Asarco opponents did not give up, and Shapleigh once more turned to the EPA regional office for help.

Earlier this year, despite the state-approved permit, EPA made it clear Asarco would need to update its equipment before it could resume smelting operations. EPA warned it might not comply with federal air quality standards without repairs and new equipment.

After that, citing falling copper prices, Asarco announced it would abandon plans to reopen the El Paso plant.

Bankruptcy

Asarco, which also faced multimillion-dollar environmental complaints in other states, was having its own problems with its parent corporation, Grupo Mexico, which had bought Asarco in 1999.

That same year, the worldwide price of copper had plummeted, prompting Asarco to suspend its smelting operations in El Paso. Later on, the price of copper would rise dramatically, making the smelter financially attractive, assuming the permit went through.

Grupo Mexico, which owned large mines in Mexico, through Asarco obtained a stake in the lucrative Southern Peru Copper Corp. Back then, its board of directors included executives from Kimberly Clark and the Carlyle Group, a global firm associated with former President George H. Bush.

But Asarco, hounded by a growing list of creditors, ended up battling against Grupo Mexico, which it accused of stripping it of its profitable stake in a Peruvian cooper mine. Asarco won the legal dispute, and on April 1, a court ordered Grupo Mexico to pay Asarco $6 billion in damages. Grupo Mexico officials have said they will appeal the ruling.

Shapleigh has said the $6 billion Asarco may receive because of the court victory is another reason Asarco should pay for the cleanup in El Paso.

During the George W. Bush administration, former Asarco employees worked at EPA's headquarters and as White House environmental advisers.

Garza, McMurray, Chew and other community activists in the region often felt that they faced enormous odds when they decided to take on Asarco, a company with friends in high places. But, they kept on fighting.

Shapleigh, who filed an open records request to obtain correspondence between TCEQ and Asarco, gave a blunt assessment of the politics.

"During the Bush administration, polluters captured and corrupted EPA, and Asarco's contacts were similar to those at the TCEQ," he said. "Routinely, polluters dump millions of dollars in political campaign contributions. Then, several months later, their permits are mysteriously approved."

TCEQ officials have denied any wrongdoing in relation to the smelter's permit process or to Shapleigh's open-records request.

After Asarco filed for chapter 11 bankruptcy protection four years ago, the tide began to change in favor of the smelter's opponents.

Asarco's parent company, Asarco Inc., a wholly owned subsidiary of Americas Mining Corp. (a subsidiary of Grupo Mexico), lost control of Asarco in 2005, when the bankruptcy court appointed an independent board to manage the company.

Questions arose over what Asarco intended to do with the El Paso smelter, and whether local taxpayers would end up having to pay for expensive cleanup bills if the copper smelter went broke.

Shapleigh tried to get El Paso officials to seek EPA Superfund status to cover the potential costs of the cleanup. However, the idea was shot down by business and government leaders who feared the status would give El Paso a black eye and scare away investors.

El Pasoan Risher Gilbert, one of the West El Paso neighbors who pushed for the EPA cleanup, said "I always felt the Asarco smelter should be a Superfund site, not the rest of the (affected) area. I'm thrilled that the smelter will not reopen. The days are over when a large smelter ought to operate in the middle of the city."

Two secrets

Shapleigh contends two public health hazards were kept hidden from the public despite previous public hearings on the Asarco permit.

He and activists opposed to Asarco unearthed the information from reams of environmental records, and fights with agencies to obtain documents under the Freedom of Information Act.

"We still need to get to the bottom of two secrets," Shapleigh said. "One was why the illegal incineration of hazardous wastes at Asarco was kept from the public, and the other is the 233 million cubic feet of contaminated groundwater plume around the smelter. We have concerns as to whether the cleanup plan will adequately address the groundwater issues."

The suspected groundwater contamination is the result of more than 100 years of smelting and other operations at the Asarco site.

McMurray, a member of Sunland Park Grassroots Environmental Coalition, said El Pasoans have a right to know what hazardous wastes were burned by Asarco at the El Paso plant site. The waste had been shipped to El Paso from the company's subsidiary Encycle Inc. in Corpus Christi.

"Records are missing, and some of us suspect some of hazardous waste contaminated our river and groundwater," she said.

According to a 2007 report of the Government Accountability Office, the investigative arm of Congress, Encycle received military waste from the Rocky Mountain Arsenal in Colorado, and then burned it in El Paso without a permit. Asarco denied any wrongdoing.

EPA officials said the issue involving Encycle was resolved in a $20.5 million settlement in 1999, but the matter was not made public until 2004, after McMurray and others came across a 1998 EPA memo obtained under the Freedom of Information Act.

Recently, the price of copper began climbing again. China, which is making noises about changing its currency base, is buying up copper and other metals around the world for this purpose.

The Tucson-based Asarco would not say if changing market conditions will alter its plans in El Paso.

For now, it appears Asarco's fate in El Paso will be determined by the bankruptcy court, EPA and the metals market.