Photo-Courtesy GTLO

July 20, 2005 -- The ASARCO permit renewal hearing which commenced on July 11th, 2005.

By: Jim Kelly, GTLO member

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, and 3) compliance issues for ASARCO during any period other than 1994-1999.

In spite of the limited nature of the hearings, exceptionally effective representation by attorneys, collectively representing affected parties who oppose the permit, has made the hearing a landmark event.

Here are the highlights:

(A) Pollution. The air dispersion model ASARCO used to prove that it would meet standards has been shown to be faulty and out-of-date. Actual tests have always (two times out of two) shown that pollutant emissions have been higher than predicted by the model. Second, the model did not consider the particulate matter--which is the easiest to inhale (under 2.5 microns), and for which a new air pollution standard has been established since the original permit was granted in 1992. In fact, ASARCO has done no modeling at all in the past 11 years to reflect the impacts of changes in air standards, changes at the plant and changes in population.

(B) Non-compliance. On the first day of the hearing, 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, from 1993 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. Previous examples of ASARCO’s emission violations were amplified by testimony on July 20th by Dr. Neil Carman. Dr. Carman’s testimony included evidence of 11 NOVs (Notices of Violations) , one EPAS Consent Order and one TNRRC Consent Order.

These separate violations, which occurred between 1993-1999 include:

a. 16,320 hourly violations (680 days) for exceedences of SO2 emissions;

b. 16,320 hourly (680 days) for chromium violations – permit exceeded 5 times;

c. 97,920 hourly exceedences for arsenic, chromium, copper, lead, nickel & zinc:

i.   Arsenic permit limit exceeded by 15 times;
ii.  Chromium permit limit exceeded by 227 times;
iii. Copper permit limit exceeded by 5 times;
iv.  Lead permit limit exceeded by 454 times;
v.   Nickel permit limit exceeded by 42 times;
vi.  Zinc permit limit exceeded by 2500 times;

d. hundreds of violations in 14 different areas such as failure to do required record keeping, failure to perform daily checks of monitor devices, failure to perform daily calibrations of monitor devices, failure to develop written quality assurance procedures, failure to control fugitive dust; failure to maintain monitor devices, delumper equipment not adequately enclosed, and failure to submit required quarterly reports;

Additionally, a 1998 EPA document disclosed during the hearing, found ASARCO guilty of storing, handling, burning and processing hazardous wastes it received from Encycle, an ASARCO subsidiary located in Corpus Christi. This took place over a period of years and without required permits. Consistently, ASARCO representatives have claimed they, “did not know it was hazardous waste.”

Equally as disturbing as the air modeling issues and severe compliance violations is the lack of adequate, objective monitoring of the ASARCO facility by the Texas Commission on Environmental Quality (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.

In testimony July 19th, Dr. Lucy Frasier, a toxicologist, said “both modeled and monitored findings of ASARCO’s air emission indicate that there is an increased risk to health from pollutants and toxic substances emitted from ASARCO.” Frasier also testified that the impacts of pollution are greatest on children as “sensitive receptors.” Later in the day, Anne Rowland, from the Office of Public Interest Council (OPIC) presented a map of Juarez, which clearly showed an elementary school within 3,000 feet of the smelter. This is especially concerning, considering the previous testimony that ASARCO’s emission blow toward New Mexico and Juarez 66% of the time.

Sometime today, the court will hear from at least one former ASARCO employee who will testify about the company’s sloppy environmental practices and its lack of proper regard for employee safety and well being. Perhaps most compelling, we will hear a first-hand account of the changes that have taken place at the plant since ASARCO stopped operations in El Paso six years ago. Contrary to comments made last week to the media by ASARCO’s attorney, testimony has made it clear that ASARCO is not a “modern facility, clean and well-maintained.” The copper smelter has been “cannibalized” by its new owner, many valuable assets removed, lots of rust, corrosion, missing equipment and no current business plan; in short, a plant in permanent shutdown mode.

For more information from the Get the Lead Out Coalition
Please go to their web site. GTLO

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Editor, Upper Valley Beacon

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