MAC: Mines and Communities

US Update

Published by MAC on 2006-03-20

US Update

20th March 2006

In what has been hailed as an "enormous victory" for environmentalism by New York's Attorney General, a Federal US Court has struck down "reforms" by the Bush regime which would have allowed violations of the Clean Air Act.

Meanwhile, one of the worst corporate violators of clean air, water and soil in the entire country, might be able to walk away from liabilities of at least a billion dollars.

ASARCO was taken over by its parent company, Grupo Mexico, in 2003 - a move which boosted the fortunes of the US company, but could now leave US taxpayers with the burden of clean-up.

Clearing the air: Court blocks EPA rules


19th March 2006

A federal appeals court sided with 14 states Friday and blocked the Environmental Protection Agency from going forward with regulations that activists say would lead to more air pollution from the nation's power plants and factories.

"Today's victory means that thousands of Americans will not have their lives cut short because of the pollution that would have blown through this huge loophole," Janice Nolen, the American Lung Association's policy director, said in a statement.

The new rules would have allowed older power plants, refineries and factories to modernize without having to install the most advanced pollution controls. The EPA has disputed claims that the changes would increase pollution.

The U.S. Court of Appeals in Washington ruled that the EPA's changes violated the language of the federal Clean Air Act, and that any such change can be authorized only by Congress. Fourteen states and a number of cities, including New York, San Francisco and Washington, D.C., sued to block the change in 2003.

Spitzer: 'Enormous victory' "This is an enormous victory for clean air and for the enforcement of the law and an overwhelming rejection of the Bush administration's efforts to gut the law," said New York Attorney General Eliot Spitzer, who led the suit for the states. "It is a rejection of a flawed policy."

"It has been estimated that more than 20,000 Americans die prematurely each year from power plant pollution," he added. "As a result of this decision, that number should be reduced."

Peter Lehner, Spitzer's top environmental lawyer, said the decision applies to about 800 coal-fired power plants and up to 17,000 factories nationwide.

Bill Becker, the head of an association representing state and local air officials, praised the ruling as well. "It is a tremendous victory for clean air and preserves an important regulatory tool for state and local air quality officials," Becker said in a statement.

Under the Clean Air Act, operators who do anything more than routine maintenance are required to add more pollution-cutting devices. Under the proposed change, industrial facilities could have avoided paying for expensive emissions-cutting devices if they spent less than 20 percent of the plant's value, Lehner said.

The rule had been blocked from going into effect since December 2003, when the same court issued a stay.

"We are disappointed that the court did not find in favor of the United States," said EPA spokesman John Millett. "We are reviewing and analyzing the opinion and cannot comment further at this time."

'Step backward,' says industry

Industry groups have contended that the Clean Air Act, as now written, discourages plant operators from modernizing their equipment. They said Friday's decision would do little to help air quality while costing billions of dollars that consumers end up paying.

"The decision is a step backward in the protection of air quality in the United States," said Scott Segal, director of the Electric Reliability Coordinating Council, a Washington-based group representing several power-generating companies. "What is it the environmental community thinks they've won? They've won the ability to place roadblocks in front of energy efficiency projects. This is terrible news."

But the court disagreed, saying the EPA rule was "contrary to the plain language" of the Clean Air Act that says the provisions would kick in if a power plant is modified to cause "any physical change" that increases the amount of air pollutants.

The lawsuit was filed by New York, California, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New Mexico, Pennsylvania, Rhode Island, Vermont and Wisconsin.

The American Lung Association and many environmental groups were also plaintiffs in the lawsuit.

Former EPA Administrator Christie Whitman said in her book that she was against the rule - the idea for which came from Vice President Dick Cheney's energy task force - when she was in office.

"I must say that I'm glad they weren't able to finish the work until after I was home in New Jersey," she wrote in "It's My Party, Too," after she left the Bush administration in 2003.

[The Associated Press and Reuters contributed to this report.]

Judges Overturn Bush Bid to Ease Pollution Rules


17th March 2006

A federal appeals court on Friday overturned a clean-air regulation issued by the Bush administration that would have let many power plants, refineries and factories avoid installing costly new pollution controls to help offset any increased emissions caused by repairs and replacements of equipment.

Ruling in favor of a coalition of states and environmental advocacy groups, the United States Court of Appeals for the District of Columbia Circuit said the "plain language" of the law required a stricter approach. The court has primary jurisdiction in challenges to federal regulations.

The ruling by a three-judge panel was the court's second decision in less than a year in a pair of closely related cases involving the administration's interpretations of a complex section of the Clean Air Act.

Unlike its ruling last summer, when the court largely upheld the E.P.A.'s approach against challenges from industry, state governments and environmental groups, the new ruling was a defeat for the agency and for industry, and a victory for the states and their environmentalist allies.

In the earlier case, a panel including two of the three judges who ruled on Friday decided that the agency had acted reasonably in 2002, when it issued a rule changing how pollution would be measured,effectively loosening the strictures on companies making changes to their equipmentand operations.

But on Friday, the court said the agency went too far in 2003 when it issued a separate new rule that opponents said would exempt most equipment changes from environmental reviews - even changes that would result in higher emissions.
With a wry footnote to Lewis Carroll's "Through the Looking Glass," the court said that "only in a Humpty-Dumpty world" could the law be read otherwise.

"We decline such a world view," said their unanimous decision, written by Judge Judith W. Rogers, an appointee of President Bill Clinton. Judges David Tatel, another Clinton appointee, and Janice Rogers Brown, a recent Bush appointee, joined her.

The winners this time -more than a dozen states, including New York and California and a large group of environmental organizations - hailed the decision as one of their most important gains in years of litigation, regulation and legal challenges under the Clean Air Act.

The provision of the law at issue, the "new source review" section, governs the permits required at more than 1,300 coal-fueled power plants around the country and 17,000 factories, refineries and chemical plants that spew millions of tons of pollution into the air each year.

"This is an enormous victory over the concerted efforts by the Bush administration to dismantle the Clean Air Act," Eliot Spitzer, the New York attorney general, whose office led theopposition from the states, said in an interview.

Mr. Spitzer, who is running for governor, said the ruling "shows that the administration's effort to misinterpret and undermine the statute is illegal."

Who will pay for Asarco's mess?

Company spewed hazardous waste from Tacoma (Washington State) to Texas, but its bankruptcy leaves cleanup efforts in question.

by SUSAN GORDON, The News Tribune

19th March 2006

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 will have to be monitored forever to prevent leaks.

Still untouched are as many as 500 contaminated residential yards, adjacent Metro Parks properties and nearby aquatic lands. The estimated cleanup cost: $45 million.

But Asarco, a former Fortune 500 company, filed for Chapter 11 bankruptcy protection last year 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 a fraction of Asarco's greater injuries nationwide. Asarco has told the 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 $62 million trust fund set up to pay for elements of the worst of the company's pollution problems, officials said. And because trust fund distributions are prioritized based on human health risks, cleanup efforts here could take a back seat to other places. Such as Omaha, Neb., home of the largest residential lead cleanup in the United States. Or El Paso, Texas, where contamination from a mothballed smelter and its 800-foot stack extends into Mexico and New Mexico.

It's unclear how much power the government's environmental lawyers will wield in the federal bankruptcy court. The Texas judge can't erase Asarco's court-ordered cleanup responsibilities, but there might not be enough money to pay for them.

The Asarco bankruptcy was among the 10 largest filed in the nation in 2005. The company's creditors are legion.

"We're in uncharted waters," said Kevin Rochlin, the U.S. Environmental Protection Agency manager overseeing the $180 million Tacoma cleanup.

Before Asarco, EPA officials had never confronted a polluter that sought to unload such a burden of cleanup duties in the middle of the process.

"There has never been anything of this magnitude and this complexity," he said.

The so-called Superfund is tapped out. The 1980 federal law was enacted to force polluters to pay the price of harm to public health and the environment, but the taxes on polluters expired and Congress has declined efforts to restore them.

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

The developer, MC Construction, might assume responsibility only for half of the estimated $45 million in remaining work, depending on how negotiations with federal regulators go.


More than a century of Asarco mining and metal extraction operations crisscrossing the West and Midwest have defiled dozens of places - among them whole towns - that include some of the nation's largest Superfund sites.

In many places, Asarco shares liability with other polluters who could be forced to pick up cleanup bills the bankrupt company won't.

In Idaho, for example, Asarco is among mining companies blamed for contamination spread across the 1,500-square-mile Coeur d'Alene River basin. Remedial work is likely to last for generations. The EPA has estimated the cost of the first 30 years at $359 million.

The total bill hasn't been divided, but in 2003 a federal judge found Asarco 100 percent liable for contamination at about a dozen North Idaho mine and mill sites. The judge assigned Asarco 22 percent liability for the mixed wastes of historical metal and mining operations.

In Omaha, Neb., the EPA says Asarco's past smelting and metal refinery operations are largely responsible for the lead contamination in a downtown residential area - home to 90,000 people - that federal officials have labeled a public health hazard.

For more than 120 years, Asarco ran a lead smelter and refinery on 23 acres along the west bank of the Missouri River. The smokestacks were the first thing drivers saw when they crossed the bridge from Iowa into Omaha.

The refinery broke air and water pollution limits during the last decades of its operation. It shut down in 1997, and Asarco demolished the buildings and built a public park in its place.

In 1998, the Omaha City Council - appalled after blood tests detected dangerously high levels of lead in hundreds of Omaha children - asked for federal help. In 2003, the EPA designated Omaha a Superfund site.

The Omaha site encompasses 20 square miles but could expand because the boundaries of the lead contamination haven't been mapped. The budget for the first five years of cleanup work is $77.4 million. The EPA also has ordered the Union Pacific Railroad to pay.

"By the time we're done, total site costs could be more than $200 million," said Bob Feild, an EPA manager for Omaha.

Other places sullied by Asarco's past mining and smelting operations include:

. Everett, where Washington Department of Ecology officials estimate 550 residential properties are contaminated with arsenic.

. East Helena, Mont., where a mothballed lead smelter is never expected to reopen.

. Hayden, Ariz., where a still-operating Asarco copper smelter has polluted its surroundings.

. Colorado's Rocky Mountains, where Asarco shares responsibility for a water treatment plant on the headwaters of the Arkansas River, a whitewater rafting and fly-fishing destination and a major source of irrigation water.


During 95 years of operations, state regulators say, Asarco's Ruston smokestack spread arsenic and lead contamination over 1,000 square miles. Asarco has denied this. And while regulators have never tried to force the company to pay, damages could be included in the state's bankruptcy court claim.

The state did not map the boundaries of the so-called smelter plume until years after federal officials approved a more limited Superfund cleanup of the smelter and the vicinity.

In 1983, the EPA added the Ruston smelter site to its Superfund national priorities list. Later, Asarco struck a deal that allowed the company to bury the waste on site as long as it redeveloped the area. The most highly contaminated material has been confined in the crypt.

But there's much left unfinished.

Asarco is responsible for the removal of contaminated soil from residential properties within a mile of the smelter. Two hundred properties that have been tested await cleanup, and as many as 300 more still need to be tested before the EPA decides whether to clean them up.

Besides the cleanup remaining on Asarco's 97 acres, estimates of the company's obligations in the Tacoma area include:

. As much as $8 million in residential soil removal to reduce exposure to lead and arsenic.

. Between $3 million and $5 million to clean up the slag peninsula, or breakwater, where the Tacoma Yacht Club stands.

. Between $17 million and $19 million to dredge the yacht basin and cap other contaminated sediments in Commencement Bay. Asarco owns some of the aquatic lands, while the state manages the rest.


"We used to have a slogan: 'Countdown to 2003,'" said Tom Aldrich, Asarco's vice president for environmental affairs. By that year, Asarco was supposed to have readied its former Ruston smelter site for redevelopment.

Instead, 2003 marked another development, a court-approved settlement of a lawsuit filed by federal lawyers who had tried to prevent Asarco's parent company, Grupo Mexico, from taking control of Asarco's shares in a Peruvian copper mine.

The settlement, which permitted the asset transfer, was orchestrated to shore up an Asarco buffeted by historically low copper prices and burdened by debt.

In Tacoma, the effect was to slow the cleanup. Plans to dredge the yacht basin and cap shoreline areas were shelved. Work zeroed in on the smelter and the neighborhoods.

The bulk of the money came in small appropriations from the nationwide trust - originally worth $100 million - that Asarco set up as part of the settlement. But Asarco also kicked in some of its own money to dig up residential yards.

Until the bankruptcy, many Tacoma householders patiently waited for Asarco's contractor to come around. Some have learned to live with contaminated soil. They've received multiple health bulletins warning of the risks of exposure.

Even small amounts of lead cause learning and behavior problems in children. Arsenic is a poison linked to lung and skin cancers. Parents don't permit small children to dig in the earth. People try not to track dirt into their homes.

Phillip Hill, who works as a capital projects manager for Tacoma Community College, is among the critics who say Asarco reneged on its promises.

A couple of years ago, he and his wife, Sochi, bought a fixer-upper on North Stevens Street, in a neighborhood dominated by old houses, big trees and well-tended lawns.

Nobody's tested Hill's soil yet, but sampling of nearby yards showed evidence of contamination. So while he waited for Asarco to act, Hill took advantage of a little-known program Asarco offered to property owners within the cleanup zone.

Do-it-yourselfers could dig up contaminated dirt and dump it in metal barrels provided by Asarco. The company would haul the barrels away.

Hill got six 50-gallon drums from Asarco a few weeks before the bankruptcy. He dug up parts of his yard, planted flowers and raspberries and filled the barrels with the contaminated sod. The night before Asarco's bankruptcy became public, he left a voice-mail message on Asarco's line and asked for a pickup.

For months, no one touched the rusty, black barrels, which cluttered the alley behind Hill's house. "I hate them out there," Hill said last fall. "It's such an eyesore." Finally, late last year, workers removed the drums.

Before they were hauled way, Hill said the unwanted barrels were emblematic of Asarco's treatment of its neighbors. "Everyone is focused on the site on the water. But as we know, the cleanup is more than that. How many yards haven't been tested? In how many haven't they replaced the soils?"


After Asarco's bankruptcy filing, the EPA tapped the trust fund set up in 2003 to continue the residential cleanups in Tacoma.

In fact, Tacoma was the biggest beneficiary in the first three years of trust fund distributions, with $16.6 million. Asarco used the money to complete the hazardous waste tomb and transport contaminated soils, among other things, from its Everett site to Ruston.

But it's uncertain whether what's left of the trust fund will stand up to the claims of Asarco's creditors.

And because the worst of the contamination from the Ruston smelter is already buried, what's left undone here might not rank as high on the EPA's priority list as other places lined up for future trust fund distributions.

Still, the Lacey developer who is negotiating with the EPA to take the title to the property insisted that cleanup obligations will not be ignored, though he has not signed documents saying so.

"There's no task from the original Superfund consent decree that's not being addressed," said Mike Cohen of MC Construction Consultants.

He has volunteered to clean up Metro Parks' breakwater peninsula and to cover contaminated sediment offshore.

But he draws the line on yard restoration - "EPA has from day one said they're comfortable taking that over" - and isn't inclined to clean up the Tacoma Yacht Basin or Point Defiance Park lands south of there.

The trust fund is likely to be the only source of money for that work, Rochlin, the EPA manager, said.

"There is no other way to do it," he said.

The bankruptcy process could last for years. And the way the court treats Asarco's environmental cleanup obligations could test environmental law.

"Depending on what happens here, it could have wide-ranging effects throughout the West," said Ken Weiner, a Seattle environmental lawyer who has represented Everett in Asarco matters.

The overview

Here's a glance at some of the Asarco and Superfund issues:

CONGRESS At least two bills have been introduced that would reinstate a corporate polluter tax to provide money for the Superfund. Both have been assigned to the House Ways and Means Committee. Action is considered unlikely.

ADMINISTRATION The Bush administration has proposed providing $1.2 billion in federal tax dollars for the Superfund in the next fiscal year. That's in line with previous spending levels. The administration has shown no interest in reinstating the polluter tax.

COURT Asarco filed for Chapter 11 bankruptcy, which would allow it to reorganize rather than liquidate. Federal Bankruptcy Judge Richard Schmidt in Corpus Christi, Texas, is overseeing the proceedings. The case could take several years to resolve.

STATE DELEGATION Democratic members of the Washington state congressional delegation are generally supportive of efforts to reinstate the corporate polluter tax, though none is taking a leadership role. The state's Republicans would likely oppose such a move. Rep. Norm Dicks, D-Belfair, and Sen. Maria Cantwell, D-Wash., have expressed concern about the Asarco bankruptcy. They can be reached through their Web sites, and

SUPERFUND The Superfund program is run by the federal Environmental Protection Agency. The agency's Web site,, has a section devoted to the Superfund.

Residents wait, wonder if job will end

by SUSAN GORDON; The News Tribune

19th March 2006

EVERETT - John Klepadlo can look out his kitchen window and see where a corner of his small Everett lot touches a parcel where dangerous concentrations of arsenic were found as deep as 17 feet below ground.

For months last year, the neighboring property - former Asarco smelter land - was an excavation hub.

Dump trucks rumbled up and down Klepadlo's street until 4 a.m. as they loaded arsenic-contaminated soil and hauled it south to Tacoma.

By the time crews finished digging, enough contaminated soil to fill the Museum of Glass cone eight times had been unloaded on the site of the former copper smelter that straddles the border of Ruston and Tacoma.

The Everett excavation made way for a neighborhood of new homes.

Soil contamination in Klepadlo's northeast Everett neighborhood dates back to Everett's early history, when John D. Rockefeller and others built a lead smelter, which Asarco later acquired.

Later, the company razed the buildings and sold the land. Houses went up on the smelter site, including Klepadlo's in 1931. It's a small, green two-story with a peaked entryway that mimics the fashion of more luxurious homes.

The house is among about 550 residential properties within a mile of the smelter site that state Ecology Department officials have marked for potential cleanup.

In 1990, testing showed high concentrations of arsenic in neighborhood soils. Asarco bought back a fraction of the original 44-acre smelter site and demolished 22 homes but resisted state efforts to do more.

Ecology Department officials estimate they've spent $13 million on efforts to reduce contamination left behind by the Everett smelter.

In 2002, a court ordered Asarco to remove the most highly contaminated material near Klepadlo's house. But when Asarco filed for bankruptcy reorganization, the contractor quit.

To finish the job, the Everett Housing Authority, which owns the property, scrounged up $900,000 from various government sources and tapped into Asarco's national environmental trust fund.

Now Klepadlo and some of his neighbors don't know if or when poisoned soil will be removed from their land.

"Asarco says they ain't got the money and they can't do it," said Klepadlo, who works the night shift at Boeing's Everett plant.

Tom Aldrich, Asarco's vice president for environmental affairs, said the bankruptcy filing canceled plans to clean up 20 Everett yards.

A plume of contaminated ground water still extends from the smelter toward the river.

"Nobody has cleaned that up. Nobody has tested it. Nobody has the money to do it," said Miji Ryan, a retired teacher who lives in the neighborhood.

Lead contamination kills swans, keeps children inside

by SUSAN GORDON; The News Tribune,

19th March 2006

COEUR D'ALENE, IDAHO - The long, sleek necks that give tundra swans their regal bearing also make them miserable, at least in the Coeur d'Alene River basin, where hundreds die annually.

Tundra swans are the most visible victims of the heavy metal contamination that taints the basin, which stretches 166 miles from Spokane across the Idaho Panhandle to Montana.

The swans nibble on stems, roots and tubers that grow in the basin's shallow lakes and marshes. The birds are quickly overcome by lead in the submerged sediments.

"Their entire digestive system shuts down and they starve," said Dan Audet, a U.S. Fish & Wildlife Service wildlife biologist who has watched the helpless birds gasp. "It's very unpleasant to see."

Asarco no longer does business in North Idaho. But the company shares liability for environmental damages with other enterprises that exploited the region's rich deposits of silver, lead, zinc and other minerals while leaving tons of toxic waste behind.

The Coeur d'Alene basin is a Superfund megasite, a cleanup so complicated it will take generations to reduce hazards to people and the environment. In 1998, the Environmental Protection Agency outlined a $359 million plan for the first 30 years of work. So far, EPA has spent about $30 million. Most of the money has come from taxpayers.

Some 82.5 million tons of contaminated sediment sits on the bottom of Lake Coeur d'Alene. State and tribal health advisories warn anglers to limit fish consumption.

In the South Fork of the Coeur d'Alene River, mine waste turned the water grayish white. Locals nicknamed it Lead Creek. It wasn't until 1968 that mining companies stopped discharging directly into the river.

In 2005, scientists who reviewed an EPA cleanup plan recommended blood lead-level testing for young children living upstream of Lake Coeur d'Alene.

Many North Idaho mining communities are built on mine waste. Contractors have been digging up yards full of contaminated soil for years.

The EPA's initial cleanup plan includes some swan habitat, but officials have not proposed a remedy for Lake Coeur d'Alene.

Chad Flood, 35, a disabled veteran; his wife, Sarah; and their two small children live in a small trailer in Mullan, near the Montana border where Asarco used to operate a mine. Soil samples showed dangerous levels of contamination in their yard.

Because of the risks, the Floods didn't allow Sarah's son, Matthew, who is 3, out to play last summer. The couple's infant son, Ashton, was too small to enjoy the outdoors.

"I'm definitely concerned about the health of my kids and my wife," Flood said last fall. "The companies that leave these messes behind should be responsible for cleaning them up."

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