A giant burial mound in Ruston holds the ruins of Asarco's copper smelter...

The Herald - Everett, Wash. - www.HeraldNet.com

Published: Sunday, March 19, 2006

Asarco leaving a toxic legacy

By Susan Gordon
The (Tacoma) News Tribune

TACOMA - A giant burial mound in Ruston holds the ruins of Asarco's copper smelter: bricks, mortar and soil so saturated with arsenic and lead that the crypt they are buried in will have to be monitored indefinitely to prevent leaks.

Asarco is poised to sell its waterfront property to a Lacey developer, including the tomb and the responsibility for the hazardous waste in it.

An estimated $45 million in cleanup work remains to be done. But the developer, MC Construction, is expected to assume responsibility only for half, depending on how negotiations with federal regulators go.

Still untouched are as many as 500 contaminated residential yards, adjacent industrial properties and nearby aquatic lands.

The former Fortune 500 company filed for Chapter 11 bankruptcy protection in 2005, and might be able to walk away from some of the nation's most vexing and expensive environmental cleanups.

That would burden taxpayers with more than $1 billion in obligations. And some regulators say that estimate is low.

The remaining cleanup in Ruston and Tacoma is just a fraction of Asarco's heritage nationwide. Asarco has told a federal bankruptcy judge that state and federal officials blame the company for contamination at 94 sites in 21 states.

Creditors fighting over the remains of the company could raid a small trust fund established to pay for cleaning up some of the worst pollution problems, officials said. But because trust fund distributions are prioritized based on human health risks, cleanup efforts in the Pacific Northwest could take a back seat to such places as:

* Omaha, Neb., home of the largest residential lead cleanup in the United States.

* El Paso, Texas, where contamination from a mothballed smelter and its 800-foot smokestack extends into Mexico and New Mexico.
see:
http://heraldnet.com/stories/06/03/19/100loc_a1asarco001.cfm

Guess What? Something that ASARCO didn't tell you

Unbeknownst to many in El Paso and the State of Texas, The El Paso Independent School District (EPISD), currently has pending litigation against ASARCO “In The United States Bankruptcy Court For The Southern District Of Texas, Corpus Christi Division,” Case No. 05-21207, Chapter 11. This to be “Jointly Administered” hearing is set for August 6-10, 2007 at 10:00am.

 The creditor in the case (EPISD) claims that the debtor, (ASARCO) American Smelting and Refining Company LLC, et al., is liable for the claim amount of $5,685,169.39 for the “Removal and Disposal of Contaminated Soil at 4 EPISD Schools [which were] tested and shown to have elevated lead and arsenic in the December 2001 report, Removal Assessment Report for El Paso County Metals, El Paso County, Texas, by Roy Weston, Inc.”[1]

The creditor (EPISD) claims that the debtor (ASARCO) “has known, or through the exercise of reasonable care should have known at all relevant times that pollutants have been escaping from its facility, exposing [EPISD] to a foreseeable risk of harm, but have failed to warn [EPISD] of the hazards caused by such pollution…”[2]

EPISD claims that “ASARCO “has at all relevant time owed the [EPISD] a duty to implement in a timely manner all reasonable measures to eliminate harmful and unpleasant pollutants from emissions that enter the areas where the [EPISD] owns property and schools; d) eliminate all unreasonable risks to property and schools owned by [EPISD] posed by the operation of the plant…”[3]

EPISD claims, “ASARCO has exposed [EPISD] to harmful pollution through reckless and wanton disregard for the consequences to [EPISD] and others similarly situated.”[4]  The latter being made up of student and neighborhood constituents.

EPISD claims “[e]missions from [Debtor] ASARCO’s facilities have periodically exposed properties and schools owned by [EPISD] to levels of pollutants that have interfered with the quiet enjoyment of its private property interests and with its enjoyment of public properties in affected areas.”[5]

EPISD claims that “ASARCO has caused noxious and potentially harmful fumes, particles, vapors and smoke to enter onto properties in which [EPISD] has an interest…The entry of pollution caused by [Debtor] ASARCO onto [EPISD] properties continues and will continue to harm [EPISD] unless abated by injunctive and declaratory relief.”[6]

Although the particulars are extensive, the issue is not as complex as it may seem. The EPISD and a group of affected parties filed a civil suit in El Paso County Court At Law Number Seven (Cause No. 2001-2478); When ASARCO filed for Chapter 11 status in 2005, EPISD, in pursuance of the cleanup costs incurred by the citizenry of El Paso, subsequently filed the claim for damages (Case No. 05-21207).

As we have seen, ASARCO’s emissions of lead and arsenic have been detrimental to El Paso, and have caused significant danger to our public schools and their students therein. The pending case against ASARCO in bankruptcy court stems from the likelihood that they were negligent while operating in El Paso and that air quality subsequently has detrimental effects upon school property, including putting students at further undue risk than should have been allowed.

EPISD is concerned about the health and welfare of its student populations and is obligated by law to provide an education in a safe and secure environment. Exposing our children to the emissions from the operations of ASARCO undermines the principles of goodwill and faith in mankind. 

It is in this and other pertinent factors that the people of El Paso petition the TCEQ not to issue Air Permit No. 20345. 

Respectfully,  

Scott Comar

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[1] U.S. Bankruptcy Court, The Southern District Of Texas Corpus Christi Division: El Paso Independent School District’s Update Of Claim Amount And Designation Of Experts And Witnesses And Designation Of Documents Supporting Export Reports And Exhibits For Hearing Relating To Docket No. 3675 Estimation of ASARCO LLC’s Environmental Liabilities, 24 May 2007 ( Case 05-21207, Document 4803), p. 1.   

[2] El Paso County Court At Law Number Seven, El Paso County, Texas, Plaintiff Intervener El Paso Independent School District’s Original Petition, Plea In Intervention And Jury Demand, EPISD et al.  v. ASARCO, Cause No. 2001-2478, Filed in TXSB on 24 May 2007 (Case 05-21207, Document 4803-3), p. 5.

[3] Ibid. p. 5.

[4] Ibid. p. 7.

[5] Ibid. p. 7.

[6] Ibid. p. 8.