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Asarco’s copper smelter in El Paso, which polluted the surrounding neighborhoods for a century, has been shuttered for nearly a decade. But it may not remain dormant forever.

In February, commissioners at the Texas Commission for Environmental Quality granted a permit that would allow the facility-one of the dirtiest in the state-to reopen.

The controversial permit would allow the yearly release of 4.7 tons of lead into the air. And for the release of 6,673 tons of sulfur dioxide-10 times higher than all other El Paso sources of sulfur dioxide combined. The permit requires only that Asarco test for lead emissions once a year.

An impressive roster of objectors, including the Sierra Club, the city and county of El Paso, the city of Juarez, the state of Chihuahua, the state of New Mexico, and Mexico’s federal government, is fighting the reopening. No official has been more outspoken than El Paso’s Democratic state senator, Eliot Shapleigh. Shapleigh’s own home was contaminated with lead and arsenic by the Asarco smelter, and later cleaned up by the Environmental Protection Agency.

The senator suspects that TCEQ commissioners met with Asarco officials several times before making their decision-a potential violation of the law. He discovered in bankruptcy court filings a request from law firm Baker Botts for close to $11 million for work done for Asarco. A description of the work included three entries that describe a meeting with TCEQ Chairman Buddy Garcia and two other meetings with an unnamed TCEQ commissioner. Under Texas law, TCEQ commissioners are forbidden to meet with company officials or their lawyers before deliberating on such rulings.

Shapleigh has filed an extensive request for documents from the state agency about TCEQ’s deliberations in the case. TCEQ is fighting it. This is unusual-state officials like Shapleigh enjoy “legislative privilege” under the Texas Public Information Act, which grants them wide range of access to confidential state agency documents. The agency has gone to a Travis County district court to prevent the release of the documents. TCEQ said it could not comment on the case because of pending litigation. To date, a hearing has not been set on the matter.

Shapleigh says the residents of El Paso are treated like second-class environmental citizens. He compares El Paso’s smelter with a similar Asarco smelter in Tacoma, Washington, where pollution is already partially cleaned up and the area is being transformed into residential and commercial developments.

He points out that the attorney general for Washington state has already won $123 million to demolish and clean up its smelter. Meanwhile, the TCEQ is asking for $52 million in Asarco’s bankruptcy court case for the El Paso smelter, which Shapleigh believes is too little. The claim has yet to be approved.

Shapleigh says the state of Washington has measured lead in every schoolyard, child care center and playground surrounding its smelter, and is focusing on cleaning up 1,000 square miles of contamination. Texas has tested fewer than 3,700 properties and has restricted the contamination site to a distance of three kilometers. It has also renewed a permit allowing the smelter to operate again.

“I have no faith in them defending our interests,” Shapleigh says of TCEQ. “We have 25 years of the TCEQ being the lapdog for polluters.”

TCEQ spokesperson Terry Clawson wrote in an e-mail that staff have carefully evaluated data from both Asarco and independent sources to arrive at the $52 million estimate to clean up the El Paso smelter.

Clawson says the TCEQ, represented by the attorney general, is involved in the bankruptcy case. Clawson writes that the agency does not discriminate in carrying out its duties. Regarding the TCEQ granting Asarco a permit renewal, Clawson wouldn’t comment directly, but referred the Observer to a 45-page document released in 2007 by former Executive Director Glenn Shankle. That document responded to various comments from El Paso and New Mexico officials, as well as the Sierra Club. In the document, Shankle defends the permit and writes that the agency’s permit will not endanger residents’ health.

Oliver Bernstein, a spokesperson for the Lone Star Chapter of the Sierra Club, shares Shapleigh’s frustration over Texas’ progress cleaning up the El Paso site.”In Washington state, you have someone like U.S. Sen. Maria Cantwell advocating passionately for a cleanup in her state, and in Texas we have U.S. senators who have not felt the need to be engaged in this issue,” Bernstein says.

He wonders why Texas’ congressional delegation has not weighed in on securing funds from Asarco’s bankruptcy case for decontamination in El Paso. “This is one of the largest environmental settlements in history, and the congressional delegation is not engaged, you don’t have the federal EPA all over this thing, and you don’t have the funding coming in,” Bernstein says. “It’s not been made a priority, and you wonder why? Is it because this is a low-income, largely Hispanic community?”

As the bankruptcy case appears to be entering its final months, Shapleigh says Texas needs to work harder for a claims settlement from Asarco. “Push has come to shove,” he says. “This is our last chance for remediation.”

-Melissa del Bosque

Melissa del Bosque is a staff writer and a 2015-16 Lannan Fellow at The Investigative Fund.

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