May 19, 2005 -- The following are excerpts obtained during the “discovery phase” (a time period when documents that a party to a legal action is compelled to disclose to another party either before or during a proceeding) in preparation for the hearing regarding the re-issuance of ASARCO’s air permit. The hearing is currently slated to begin in July.

Read the testimony of Dr. Neil Carman who spent twelve years as a facility investigator, inspecting large and small industrial facilities to insure compliance with applicable air emissions laws, permits, and regulations for the TACB (now part of the Texas Commission on Environmental Quality TCEQ). The TCEB was responsible for developing, implementing and enforcing air pollution control policy throughout the state.

Below are excerpts from Dr. Carman’s testimony. His testimony can be read in it’s entirety by clicking on the PDF link at the top of the page.

-“Based on my review, it is my opinion that ASARCO’s has operated its El Paso
facility very poorly, among the worst violators I have evaluated. The facts show
that ASARCO ran a large, old facility in a very sloppy and irresponsible manner.
This consistently led to violations of permit, statutory and regulatory requirements.”

-“Rather than responsible management of these problems, ASARCO clearly chose to sit by and let the problems grow unless and until a government inspector detected them. ASARCO’s behavior from 1994 to 1999 reflects a callous disregard for public health and the environment. Because inspectors found as many violations as they did, and because many of the violations were due to highly polluting processes run with inadequate maintenance and human error, there were more than likely many violations that occurred during the vast majority of days each year when inspectors weren’t present.”

-“It has long been well known that TCEQ (the state agency which regulates smelting and refining industries) and its predecessor agencies—I’ll call them all TCEQ—have been underfunded and very limited in its enforcement capabilities. TCEQ has the discretion and used it to determine where to put its resources. At times, the resources are collected and focused on a type of facility that is found in many locations of the state. Moreover, TCEQ has taken an approach that focuses more on giving regulated entities a great deal of flexibility. Those large industries have taken advantage of that to delay or avoid enforcement actions, as agency staff working on cases leaves that agency or as other limits on the agency’s ability to bring enforcement actions is limited. My opinion about the lax enforcement of environmental laws was confirmed by a State Comptroller’s report in 1992, during the administration of Governor Ann Richards and again more recently by the State Auditor and the resulting TCEQ self evaluation. That reports on TCEQ’s enforcement have made it clear that there has been traditionally too much lenience with industry, too few enforcement actions being initiated, too few fines being imposed, too few enforcement staff, and so on. State Auditor’s report in December of 2003 criticized the ongoing failure of the TCEQ to adequately enforce environmental laws. The basic point is that Texas enforces only a small fraction of environmental violations, not because most violations are not serious, but because the state’s emphasis and resources have been put elsewhere. The result, as I experienced during my career at TACB, and as ASARCO’s history shows, is that most violations, even serious violations, do not lead to formal enforcement.”

For testimony of Dr. Neil Carman, PhD. on behalf of protestant Sierra Club Click Here.

For a related link about Dr. Neil Carman, PhD. Click Here.