From Rio Grande/TCEQ Watermaster Rubinstein in answer to open records request

Dear Mr. Rubinstein,

The response says that the chemical analyses for the 1996 zinc stack demolition project were made and therefore do exist. Your own reply says that you are responsible and permitted under the law to find existing information. SO, WHERE ARE THE ANALYSES/DATA? The reply from the TCEQ that they can't locate "the specific analyses" is not answering my request and the excuse that it is too difficult to look is pathetic when this zinc stack demolition occurred under a 1996 agreed order (SEP).

We have authenticated written evidence that both the TCEQ and EPA are hiding metals-contamination from Asarco found both in El Paso and Corpus Christ (attached). The TCEQ repeatedly fails to provide any full-analyses (total metal analyses - SIC), any stack samples, any raw data (spectrometer analyses), any location of physical core samples, the analyses of the ENCYCLE loads that the EPA made for the consent decree --- ALL ARE MISSING. This belies all valid scientific laboratory and scientific-academic procedures where such data must be kept on record for legal challenges to patents, for report-interpretations, etc.

This begins to be a tiresome wearisome pattern and in this particular case of the stack demolition, when your own reports describes the analyses of the stack walls -- and this lack of data falls appallingly short. I am copying an OAG contact because I feel that this pattern shows a circumvention of the Open Records Law: the TCEQ does not have to give out the records if they fail to keep the data on file.

Repeatedly the TCEQ insists that there is no evidence of many toxic-wastes (e.g. radioactive material) because they fail to find the reports just mentioned. We do understand that the evidence is MISSING --- the TCEQ is guardian of this data, and as such has failed its responsibility to safeguard the public health.

The TCEQ begs the question that they know all the wastes that contaminated us, without the proper evidence -- does the TCEQ think that El Pasoans are ignorant and dumb? The TCEQ even shows a disregard for the public here by failing to hold the Asarco Air Permit #20345 renewal hearing here, in El Paso (the City has offered to cover the TCEQ's expenses incurred holding the meeting here and not in Austin, TX).
It is becoming increasing clear that there is a huge span of missing samples and full-analyses that would, if provided, let this region know what toxins rained down on us from Asarco El Paso.

I received your summary 7/23/07 of our telephone conversation but did not receive a reply to the concerns listed in that summary.

Asarco case twists again

Tacoma, WA - Monday, August 27, 2007 Asarco case twists again
Court filing says former directors pillaged it
LES BLUMENTHAL; The News Tribune
Last updated: August 27th, 2007 01:23 AM (PDT)
WASHINGTON, D.C. – The heads of one of Mexico's wealthiest families and
other former executives of Asarco "systematically liquidated" its most
valuable assets, leaving the mining and smelting company in bankruptcy
and facing billions of dollars in environmental and asbestos-related
claims, according to a new court filing.

The complaint, filed by a group of Asarco's creditors, seeks at least
$100 million in damages from German Larrea Mota-Velasco and his brother,
Genaro Larrea Mota-Velasco, along with seven other former directors and
officers of Asarco. At the same time they were running Asarco, the
Larreas and others held similar positions with Asarco's parent company,
Grupo Mexico, S.A. de C.V.

"Almost from the beginning, the actions by the directors and officers
demonstrated that their loyalties were to Grupo Mexico … resulting in
devastating financial loses to Asarco," according to the complaint.

Officials at Grupo Mexico did not return phone calls or an e-mail
seeking comment.

Among the allegations are that the nine named in the complaint
engineered the 2002 sale of Asarco's majority interest in two highly
coveted Peruvian copper mines to another of Grupo Mexico's subsidiaries
in a "sweetheart deal" worth about $765 million. By some estimates, the
mines then were worth more than $1 billion. Today, as the price of
copper has soared, they could be worth $7 billion to $8 billion.

Washington state, which has filed $600 million worth of environmental
claims against Asarco, did not join in the complaint. But the state
could benefit if the mines were returned to Asarco and the company had
more cash to pay off claims.

"This case keeps getting layers added to layers," said Elliott Furst, a
senior counsel in the Washington Attorney General's Ecology Division. He
said the state was too focused on proving its environmental claims to
join in the case against Grupo Mexico and Asarco's former directors and
officers.

For more than 100 years, Asarco operated a copper smelter on the border
of Tacoma and Ruston. The state claims arsenic, lead and other toxic
substances emitted from the smelter contaminated more than 1,000 square
miles in Pierce, Thurston and King counties.

The smelter, closed in 1985, has been demolished, the site mostly
cleaned and sold to a developer. The state, however, insists that water,
air and soil were contaminated in the tri-county area. It will have to
defend its claim in late September in the Texas bankruptcy court hearing
the case.

Washington state's claim is the second-largest filed. Overall, nearly
$11 billion worth of environmental claims have been filed by 16 states,
two Indian tribes, the federal government and private parties. If Asarco
is unable to pay for the environmental cleanups at more than 75 sites
nationwide, federal and state taxpayers might have to foot the bill.

In addition, 95,000 asbestos-related claims have been filed against
Asarco, up to $2.7 billion.

Grupo Mexico, which bought Asarco in 1999, is the third-largest copper
producer in the world. The Larrea family is considered part of Mexico's
"fantasticos," the 100 or so superrich families in that country who are
socially, politically and economically connected.

Though he wasn't named directly, the complaint suggests that another of
Mexico's superrich, Carlos Slim, might have benefited from the sale of
the Peruvian mines.

Slim, who made much of his fortune in the telecom industry, might have
recently surpassed Microsoft founder Bill Gates as the richest man in
the world.

The complaint quotes Genaro Larrea as saying Slim, a "close associate"
of Grupo Mexico's principals, and his Mexican bank had bought $100
million of Asarco bonds at a deep discount. As part of the proceeds from
the mine sale, those bonds were paid off at face value, according to the
complaint.

Suing the directors and officers of a company that has sought bankruptcy
protection is not unusual.

"It is not uncommon to bring an action against officers and directors of
a bankrupt company for breaching their fiduciary responsibilities," said
Leif Clark, a University of Texas law professor and a federal bankruptcy
judge. But in the Asarco case, Clark said, it might become complicated
because those named in the complaint are residents of Mexico.

According to the complaint, the former Asarco officials not only
stripped the company of its interest in the Peruvian mines, but also
neglected Asarco's core mining business, sold lands with confirmed
copper reserves at raw land prices and cashed in insurance policies that
covered potential environmental and asbestos-related liabilities to fund
ongoing operations.

The nine directors and company officials resigned after the Peruvian
mines were sold to Americas Mining Corp., a Grupo subsidiary.

Asarco is now being run by directors approved by the bankruptcy judge.

The complaint was filed in the bankruptcy court earlier this month. The
case is scheduled for trial next spring.

Even as the legal battles unfold, Furst said some banks and other
financial institutions have approached Washington state and other
claimants in the bankruptcy about buying their claims at a discount.

The banks, believing the demand for copper worldwide will continue to
grow, hope the claims they buy at a discount might eventually be worth
more or, as Asarco emerges from bankruptcy, they could receive stock in
the company.

"There is a lot of speculation Asarco could be worth more than people
think," Furst said. As for Washington state selling its claims, Furst
said that "it might make sense to do it at some point."
Les Blumenthal: lblumenthal@mcclatchydc.com

Originally published: August 27th, 2007 01:23 AM (PDT)
1950 South State Street, Tacoma, Washington 98405 253-597-8742
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