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Wednesday, July 18, 2007

Reply from Carlos Rubinstein : Complaint remains unanswered and dismissed

To: Carlos Rubinstein
fr: Heather McMurray

sb: Requests not considered as a complaint

I am amazed, Mr. Rubinstein, that my complaint asking the TCEQ to sample and identify chemical compounds left here from the illegal sham-recycling by Asarco is not regarded as a complaint. After all, those chemicals were deposited here from nearly a decade of sham-recycling and the environmental regulatory agencies have not looked for these. I want the toxic waste that was deposited here by the illegal actions investigated. The chemical analyses I asked for would let us know what was smelted here - why would that a huge problem for our environmental regulatory officials? If you cannot accept requests for testing under "complaints" then why did you ignore the complaint's text stating that illegal sham-recycling was done here and there is unknown contamination that needs addressed? I am reporting contamination to TCEQ through the complaint option, because that contamination has not been measured/addressed in our community.

1) The consent decree required that the company run spectrometer analyses asap, because historically they hadn't.
2) TCEQ is allowed to request these; you claim that there aren't any.
3) You are telling me that TCEQ refuses to run scientific tests (spectrometer, for example) that would reveal what contamination is there ["These requests are not considered as a complaint according to TCEQ. >"] Instead, all the remediation analyses you refer to looked for metals that Asarco would have been able to smelt/sell.
4) The 100 year old central Pond at Asarco is historically known, and even featured on postcards. You are not familiar with this pond? It handled all the circulating wastewater recovered as part of their storm and waste-water handling and routed it to the brine concentrator that was rated to removed radioactive waste.
4) "released some stormwater..." It was not "some" It was over 200,000 gallons, it spilled into our drinking water and the incident was never sent to EPA to enter in their spill database so that NOAA could respond with an ORR which they are legally allowed to do since that spill also entered the Rio Grande.
5) As you pointed out, all the TCEQ records for Asarco are on file with the Regional Office and they tell us that they do not have Asarco El Paso's EMS (environmental management report). Why is that missing?
6) "US Ecology is required to know what type of waste they receive for disposal. The agency is not required to receive analytical data of ASARCO’s waste. " TCEQ is allowed by law to request the analysis on file with TX US Ecology. The manifests TCEQ sent me were general and did not characterize the hazardous wastes -- in order to determine that the shipment was not radioactive (whereupon TX US Ecology should ship it to its other facility in WA state) that test had to be run. It is missing.
7) "The TCEQ has previously responded to your Public Information Act requests on the same subject." TCEQ continues to evade and not answer the question: What is here in El Paso from the burning of toxic-waste for profit by Asarco. Since we know that toxic waste was illegally and deliberately burned here for profit and the TCEQ continues to evade PIA's, I am assuming that the TCEQ is not giving me all the information available under the PIA, and I wish to direct the OAG's office to this continuing dilemma.
8) I believe that I have a letter from the Regional Director telling me that they do not cap; yet you use that term to describe remediation for one of the ponds.
9) Mr. Rubinstein, I am concerned that you do not treat my request for a scraping of the main stack seriously. You wrote that this, "would not be representative of overall emissions from the site". I am not talking about overall emissions. I am asking that the TCEQ use all options, including that one, to determine what toxic wastes we have been contaminated with. Since TCEQ does not possess any stack samples at all from Asarco El Paso, this omission is glaring.

-------- Original Message --------
Subject: [Fwd: Re: Please explain no answer to either TCEQ filing: TCEQ failing to enforce identification and
Date: Wed, 18 Jul 2007 19:55:03 -0500
From: Carlos Rubinstein <CRubinst[at]>
July 18, 2007


Re: ASARCO-El Paso facility

Dear Ms. McMurray:
This letter is in response to your June 23, 2007 email to the Texas Commission on Environmental Quality’s (TCEQ) internet site that receives complaints from citizens across the state. Your email states that you were filing a formal complaint asking the agency to conduct very specific technical analyses at ASARCO.
First, you asked the TCEQ to run a full spectrometer analysis of the material dredged from the bottom of the 100 year old ASARCO pond and that was sent to TX US Ecology near Robstown for storage, with the purpose of identifying the chemical compounds left from the illegal sham recycling by ASARCO. Second, you asked TCEQ to conduct a full spectrometer analysis of the present bottom of the 100 year old pond and where the most runoff would have contacted soil during the September 4, 2006 collapse of the ASARCO rubber lake. Third, you asked staff to run an analysis from a scraping of the ASARCO primary smoke stack and from the ionics brine concentrator’s concentrate chambers. Finally, you stated that the analysis should include ash incineration technique to check for alpha and beta particles. These requests are not considered as a complaint according to TCEQ.
Nevertheless, your requests indicate that there is confusion as to the identification of various ponds, the removal and disposal of solid waste, and sampling requirements, analyses, and results at the ASARCO El Paso Smelter. Thus, we are providing additional information in an attempt to clarify the issues.

There are several ponds at ASARCO. Staff confirms that ASARCO has three ponds that the company has investigated (Pond 1, Pond 5, and Pond 6) at the El Paso smelter. The water in Pond 6 has been used primarily for general supply, stormwater collection, anode cooling and fire water supply. Pond 5 was used for boiler feed backup and some stormwater collection. Pond 1’s primary function is for stormwater collection.
ASARCO has investigated these three ponds and has performed remedial actions in relation to these ponds. The TCEQ Remediation Division staff has reviewed the characterization of ASARCO’s site and is currently monitoring ASARCO’s remediation activities. ASARCO’s analyses of sediments from these ponds can be found in ASARCO El Paso Copper Smelter Remedial Investigation Report Phases I (October 1998 Vol 1), Phase II (July 2000 Vol 1), and Phase III (November 2001 Vol 1). These reports will also contain plats which will have the location of these ponds so you can correctly identify the pond of concern. The sediments from these ponds are dried on-site and disposed of in an engineered repository (i.e. landfill). The repository is lined and will have a cap and subsequent groundwater monitoring when completed. This documentation is available for public viewing at our El Paso Regional Office.
In addition, ASARCO has a large stormwater collection pond called the “rubber lake” a term that you use in your email. Since El Paso receives an average of 8 inches of rain a year, the rubber lake is dry most of the time. During the El Paso flood event of 2006, the rubber lake overtopped and released some stormwater. However, the liner for the rubber lake remained intact. The TCEQ El Paso Regional staff has oversight of the rubber lake and not agency Remediation staff. To date, the TCEQ staff have not received any sediment sample results from ASARCO of the rubber lake.
Next, you asked about waste sent to US Ecology from ASARCO. As you may recall, the TCEQ previously provided documents to you relating to a number of shipments that ASARCO sent to US Ecology, with accompanying waste manifests. These documents show that hazardous waste was sent off-site for permanent disposal. No analysis of this waste is provided to the TCEQ. This waste is from ASARCO’s process and includes the following: 1) wash down water, 2) cleanup activities, 3) sludges, and 4) brine waste from the wastewater treatment plant. ASARCO is responsible for characterizing their waste which is shipped offsite. US Ecology is required to know what type of waste they receive for disposal. The agency is not required to receive analytical data of ASARCO’s waste.

The waste analysis records do not contain spectrometer analysis per se because the agency does not require the facility or the Company receiving the waste to submit that information to the agency.

This is in compliance with 30 TAC Chapter 335 Subchapter R:

Persons who generate industrial solid waste or municipal hazardous waste shall comply with the provisions of this subchapter. . . . Persons who generate waste in Texas shall classify their own waste according to the standards set forth in this subchapter and may do so without any prior approval or communication with the agency other than notification of waste generation activities pursuant to §335.6 of this title (relating to Notification Requirements) and submittal of required documentation pursuant to §335.513 of this title (relating to Documentation Required).
A reading of Section 335.313 includes cross references to Section 335.511. Section 335.511 requires a company to maintain a list of chemical constituents found in its waste but does not require specific documentation to support its results. Information regarding waste analysis of materials that have been deposited in approved on-site waste repositories as a result of ongoing on site remediation activities can be found in Phase I through Phase IV of the “remedial investigation reports” available for review at the El Paso Regional Office. Spectrometer analysis (paper read-out) has not been located/identified in the TCEQ records regarding waste analysis to determine an appropriate disposal method for excavated material that may have been shipped off-site.
Regarding your request for analysis of scrapings of the ASARCO primary smoke stack and from the ionics brine concentrator’s concentrate chambers; this type of analysis is also not required in as much as the findings and results would not be representative of overall emissions from the site.

The TCEQ has previously responded to your Public Information Act requests on the same subject. Legal staff copied several boxes of files and sent them to the El Paso Office for your review. Please contact Ms. Sally Williams in our El Paso Regional Office at (915) 834-4949 when you are ready to review the information.

Carlos Rubinstein, Area Director

Field Operations Division
Texas Commission on Environmental Quality


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