Bankruptcy Fraud
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-------- Original Message -------Subject:COMMENT AND NOTICE OF ASARCO BANKRUPTCY FRAUD Date: Fri, 26 Oct 2007 18:43:07 -0600 From: Taylor Moore <[email protected]> To: 'Hon. Ronald J. Tenpas US Department of Justice' CC: ': Judge Robert C. Pate' <[email protected]>, 'Sander L. Esserman' <[email protected]>, 'Paul M. Singer' , 'Alan S. Tenenbaum' , 'Jack L. Kinzie' <[email protected]>, 'Hal F. Morris' , 'Jerry L. Ellington' <[email protected]>, 'Angela O'Connell' , 'Bart Seitz' , 'H. Chrisopher Mott' , 'Tommy Jacks' , 'Peter M. Lee' , 'Daniel Rose' , 'Charles R. Sterbach' , , A. Moore , Adam Walke , , 'Alcides Flores' , Alfonso Z. Gutierrez , 'Armando Vega' , 'Ayumi' <[email protected]>, Blanca Ortega , Bob Geyer , Cynthia Muro , 'Daniel Fuentes' , 'Debra Kelly' , 'Diana Gonzalez' , Douglas Meiklejohn , 'Edith Jaurrieta' , 'Enrique "Henry" Palomares' <[email protected]>, <[email protected]>, Eugenia Shekhter , 'hmcmurra' <[email protected]>, 'Isabel Santos' <[email protected]>, Jacqueline Barraza <[email protected]>, Joe Pinon , Jose Ibarra , Juan Garza <[email protected]>, Juan Rodriguez <[email protected]>, Kevin Von Finger , , 'Lilia A. Ureno' , Luis Flores , Luis Munoz <[email protected]>, 'Luz Vargas' , 'Manuel Robles' <[email protected]>, 'Mariana Chew' <[email protected]>, Mark Wilkinson <[email protected]>, 'Martha Gonzalez' <[email protected]>, 'Mary Carter' <[email protected]>, Meg Murphy <[email protected]>, Mike Quarles <[email protected]>, Mike Villalobos <[email protected]>, Nancy L. Simmons , Nat Stone , 'Natalia Francis' , Ninon Schalk , 'Olga Arguelles' , Peter Hinde , Rafael Ureno , 'Rick Provencio' <[email protected]>, 'Robert Ardovino' , 'Rosa Nunez' , Rosario Robles <[email protected]>, 'Sam Fernald' , Stephanie Muro <[email protected]>, 'Veronica Carmona' , Veronica Ureno , Wallace Heitman
Hon. Ronald J. Tenpas Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice VIA Email @ [email protected]
RE: In Re ASARCO, LLC, DJ Ref. No. 90-11-3-08633
SUMMARY OF NOTICE This Notice relates to the efforts to settle ASARCO’s environmental liabilities in the bankruptcy court. It presents facts which demonstrate that massive liabilities are being concealed from the Court and that individuals guiding the settlements have conflicts of interest which have not been disclosed. It also requests that you take appropriate action. STATEMENT OF FACTS Background The Sunland Park Grassroots Environmental Group (SPGEG) consists of residents of El Paso, Texas, Sunland Park, New Mexico and Ciudad Juarez, Mexico. These cities comprise the Paso Del Norte Region, which has a combined population of approximately 3.5 million. For the last two years the group has met each week to address environmental issues that impact the Region. Approximately 20 people, from 11 to 83 years-old, attend the meetings. Most of the people these people live in a Sunland Park subdivision called Anapra, which is located in the bend of the Rio Grande River, two miles upstream from ASARCO’s El Paso Smelter. The prevailing winds took the smelter’s plume toward Anapra 25% of the time for over 100 years. (Exhibit 01 – Wind Rose) Mt. Cristo Rey also drains into Anapra. (Exhibit 02 – Anapra Looking South Toward ASARCO) The community is located in a sink which is protected from the Rio Grande by a levee. Poisons that either drain or blow into the community stay there because they are trapped by the levee. Sunland Park is one of the poorest cities in the United States. Anapra is, by far, the poorest subdivision in Sunland Park. Approximately 1200 people, all Hispanic, live in Anapra. Some have spent their entire lives in Anapra.
After being exposed to ASARCO’S contamination for so many years Anapra’s population vividly demonstrate symptoms of heavy metal poisoning. A large number of the children have learning disabilities and behavioral problems. The special education classes of the schools the children attend are almost entirely populated by Anaprans. Boys seldom finish high school—they go to jail. Nasty confrontations between officers from the Sunland Park Police Department and Anaprans are common. There is a high incidence of family violence. Police officers are afraid to go into Anapra alone when they respond to emergencies. Many of the girls get pregnant and drop out of school. They are often pregnant by the time they are fourteen years old. Because Anaprans don't finish high school they are unprepared to enter the work force. Unemployment is very high in Anapra. When people lack work they also lack hope. The despair of Anapra parents is multiplied by the fact that their children have learning disabilities and behavioral problems. Parents lay awake at night wondering what they have done wrong. The children suffer too. They feel it when they are unable to live up to their parents expectations. They feel it when they are singled out at school. Many have skin rashes and dental problems. Some have speech impediments. Every family in Anapra has at least one member with respiratory disease. Asthma, sinus infection, congestion, and severe headaches are a part of their daily life. Children who are vigorous one day are flat on their back when the air changes. They can't play. They can't attend school. Depression is abundant in Anapra. At least one person in every household has chronic fatigue and displays lack of interest in life. Anxiety and emotional problems are numerous. So is self-medication. The community has a severe alcohol and drug abuse problem. There is at least one alcoholic in almost every home in Anapra.
Sequence of Events The EPA recently tested the soil of 69 houses in Anapra. Over one third of the houses contained dangerous levels of lead or arsenic. (Exhibit 03 Albuquerque Journal 6-30-2007) The soil was removed from 25 homes. The SPGEG has reason to believe, and does believe, that an unbiased investigation is going to demonstrate that the EPA deliberately skewed the results of the Anapra soil tests to understate the severity the chemical contamination of Anapra.
ASARCO operated 24 hours a day, seven days a week, from 1887 until it was closed in February, 1999. While it was operating, the smelter deposited a heavy load of contamination on its neighbors—over 611 tons of lead in 1970, alone! (Exhibit 04 – Letter from Rosenblum to Ruckelshaus ) Throughout its history, ASARCO has deliberately concealed the fact that it was poisoning its neighbors. Its present position is that the contamination went straight up out of the stack and came straight down inside the boundary of its El Paso Property! It claims that only three spots outside its fence line were contaminated by its operation. This inherently incredible claim is central to the fraudulent scheme that the bankruptcy court is being asked to approve in this case. For most of its life El Paso was a company town, dominated by ASARCO. Important segments of the community helped ASARCO conceal the environmental contamination problem. For example, El Paso pediatricians, whose patients lived near ASARCO, did not to diagnose lead poison cases. (Exhibit 05 – 1972 Lead Committee Minutes) In 1972 the Center for Disease Control (CDC) attempted to expose the smelter contamination problem. Prominent El Paso pediatricians managed to defeat CDC’s effort with a health study that was funded by ASARCO. (Exhibit 06 – Letter from Rosenblum to Landrigan 1973) The physicians had potential conflicts of interest because they were exposed to liability for failure to diagnose lead poison. They concealed their potential conflicts of interest. They concealed the fact that their health study was funded by ASARCO. And they falsely claimed that the protocol used for their health study was the same as the protocol used by the CDC. ASARCO has relied upon the results of this study to understate its potential liabilities for many years. In 1982 the Washington Post published a story about concealment of ASARCO’s contamination of Anapra. (Exhibit 07 - Washington Post 4-281982) The reason that this large, national newspaper focused on Anapra was because New Mexico officials were publicly accusing the EPA of dragging its feet while ASARCO poisoned Anaprans. The New Mexico officials had proof that the soil in Anapra contained highest levels of lead in New Mexico; that some Anapra children’s blood contained dangerously high levels of lead, and that ASARCO was the source of the contamination.
After this brief encounter between the EPA and New Mexico officials, something rancid took place. Someone decided that the residents of Anapra weren’t worth saving. New Mexico officials turned their backs on Anapra. They stopped testing the children and soil in Anapra. Instead of trying to stop the sacrifice of an entire community, Anapra became their nasty little secret. Subsequent events show that the decision was a disaster. It resulted in the continuous exposure of the residents Anapra to ASARCO’s contamination from 1982 to the present day. Today over 1200 people live in Anapra. Three generations of Anaprans have been poisoned. The impact of the disastrous 1982 decision mushroomed in the late 1980’s when ASARCO decided to secretly turn its El Paso Smelter into a hazardous waste incinerator. ASARCO pretended that it was extracting metals from hazardous waste at its Encycle facility in Corpus Christi, Texas. They used this as a front to accept very dangerous wastes that contained no little or no recoverable metals. The fraudulent, high-risk operation in the middle of a large metropolitan area continued from the early 1990’s until the El Paso smelter was closed in 1999. It was only recently exposed by Heather McMurray, a member of SPGEG, whose persistence in pursuing an open records request finally paid off. (Exhibit 8 - New York Times 10-10-2006). This revelation took place long after the ASARCO bankruptcy proceeding was filed and long after disclosures were filed in the bankruptcy proceeding. ASARCO’s sham recycling operation exposed ASARCO each person acting in concert with ASARCO to enormous civil and criminal liability. Individuals who helped ASARCO conceal the fact that it was secretly exposing its workers and neighbors to these toxic materials are now helping ASARCO steer this proceeding through the bankruptcy court. They are concealing their conflicts of interest from the court. These include federal, state and local officials— even representatives from the Department of Justice. Many of the members of SPGEG were born after the date ASARCO’s smelter was turned into a hazardous waste incinerator. They have been exposed to the toxic material 24 hours a day, every day of their life. And the federal, state, and local officials who they are forced to trust have lied to them every day of their lives.
The City of El Paso’s water supply is especially vulnerable to ASARCO’s contamination. From March through October El Paso takes almost all of its water from the Rio Grande—just 2.9 miles below ASARCO. (Exhibit 09 Undated photo showing the distance between ASARCO and the Canal Street Water Treatment Plant) The water is pumped from the Canal Street Water Treatment Plant through three large pipes (48” 36” and 20”) to reservoirs on Mount Franklin where it is distributed by gravity all over the city. Thus everybody who drinks El Paso’s water is exposed to ASARCO’s poisons. The Canal Street Water Treatment Plant is a grandfathered facility that deposits its waste back into the American Canal, which delivers the water from the river to the water treatment plant. After the waste is dumped back into the canal, the water is used to irrigate crops and lawns throughout the lower valley of El Paso. Because the hazardous waste incineration was kept secret, it was impossible to protect El Paso’s water supply from the toxic substances from ASARCO. In 1992 ASARCO replaced its furnaces with two CONTOP reactors. ASARCO ran these two reactors at more than 2,000 degrees centigrade attempting to incinerate the toxic material. This was a much higher temperature than was necessary to smelt copper. They burned up both reactors. While the reactors were inoperable, the incoming hazardous material accumulated at the smelter. Every wind event or water event moved poison downhill, where it would end up in the American Canal, which delivered the poison to the Canal Street Water Treatment Plant. (See Exhibit 09)
In 1996 the Camino Real Landfill applied to renew its operating permit. This is New Mexico’s largest dump. It accepts waste from throughout the Paso Del Norte Region. Some of the waste comes from as far away as Chihuahua City, Mexico. Sunland Park residents had reported skin, eye, nose and throat problems. New Mexico Border Health Office and the Agency for Toxic Substances and Disease Register (ATSDR), claiming that they were responding to residents health concerns, fabricated a “health consultation.” The agencies also said that they wanted to determine whether ASARCO was the source of toxic substances that were making the residents sick. (Exhibit 10 - 1997 ATSDR Health Consultation). The authors of the “health consultation” were fully aware of the 1982 study that found that ASARCO was poisoning Anapra; that Anapra had the highest lead levels in the state of New Mexico and that some of the children had dangerous levels of lead in their blood. By 1996 things had gotten much worse in Anapra because ASARCO had operated continuously for fourteen years after the 1982 study, adding substantial additional contamination that was trapped in the community by the levee. Nevertheless, the study concluded that the levels of contamination were not at levels that could cause health problems for most residents and that no single industrial source of the contamination could be found. The authors reached this result by cooking the data. They pretended that the community of Anapra didn’t exist. Anapra is the Sunland Park subdivision that is closest to ASARCO. Pretending that Anapra didn’t exist was extremely high-risk fraudulent conduct because it is so easily exposed. A map included in their study shows that they took their data two miles upstream from Anapra. The hearing examiner, who granted the landfill’s application to renew the permit, relied heavily on the ATSDR’s “health consultation.” Jennifer Lykes, one of the authors of the ATSDR health consultation was present at a public meeting the EPA held in Sunland Park in July, 2005. Asked if she intentionally concealed the fact that ASARCO was contaminating Sunland Park she replied, “Not intentionally.” In the summer of 2001 the same federal, state and local environmental regulators and public health officials who had been concealing ASARCO’s contamination from the people who were being poisoned again descended on El Paso and Sunland Park. This was a highly publicized event. The officials expressed alarm because, they said, a student working on his master’s degree in geology at New Mexico State University had found dangerous levels of lead, cadmium and arsenic on the campus of the University of Texas at El Paso. They announced that the public health was threatened. They claimed that they were especially worried about the children. They rushed to El Paso to determine whether it would be necessary to close the schools, the parks and the child care centers.
The EPA took charge. They named their effort the El Paso – Dona Ana Metals Survey. From its inception, the “survey” was bogus. A handwritten EPA memo dated June 28, 2001 states, “TNRCC is concerned that the El Paso sampling plan doesn’t undermine the ASARCO Corpus sampling delima.” (sic) (Exhibit 11 - handwritten memo 6-28-2001) There are several inescapable inferences from this sentence which include:
That ASARCO has poisoned Corpus Christi, Texas and the Paso Del Norte Region; That the contamination resulted from ASARCO’s fraudulent metal recycling scheme; That the contamination is dangerous and will adversely affect the health and welfare of the people who live and work in Corpus Christi and the Paso Del Norte Region until it is removed. If the contamination was not dangerous the parties would simply announce that “ASARCO had an accident but it won’t hurt anyone—here’s what it is;” That ASARCO either cannot, or will not clean the contamination up; That officials from both the EPA and the TNRCC are aware of the substances contaminating both Corpus Christi and the Paso Del Norte Region; That the federal and state regulators have been compromised and are acting in concert with ASARCO; When the EPA came to El Paso to begin their “survey” they recited a history of the events that they said caused them to believe ASARCO had contaminated El Paso. The history concealed the fact the officials knew that ASARCO had secretly operated a hazardous waste incinerator in the middle of this major metropolitan area.
How bad is the contamination that ASARCO and the government officials have been hiding? A laboratory report dated August 16, 2001 (six weeks after the handwritten memo) gives us a clue. (Exhibit 12 - Lab Report dated 8-17-2001). Four soil samples were taken from the Sunland Park Water Tower which is located on Mt. Cristo Rey near the intersection of Racetrack Drive and McNutt Road. The water tower is located further upstream from ASARCO than Anapra uphill from Sunland Park’s city hall. This water tower was erected in the early 1990’s—shortly after ASARCO began to operate the hazardous waste incinerator. In order to erect the water tower it was necessary for a bulldozer to level the site, scraping away the contamination that had accumulated during the hundred years since ASARCO had commenced its operations in 1887. The SPGEG has reason to believe and does believe that the EPA tested the site for all of the toxic substances that they believed were generated by ASARCO’s hazardous waste operation. But the lab report that the EPA published only includes the results for lead and arsenic. The four results for arsenic were 65.2, 172.0, 169.0 and 197.0 mg/kg, respectively. A sentence from the handwritten memo, dated six weeks before the lab report, stated “ATSDR thinks 20 – 24 is too high for As (Arsenic) in the soil.” The four results for lead were 215.0, 1070.0, 1080.0 and 1210.0 mg/kg. The screening levels for removal of soil in El Paso were set at 500 p.p.m. This dangerous accumulation of toxic material resulted from ASARCO’s operation during a relatively short span of less than ten years! The smelter was closed in February, 1999. As soon as the EPA received these results they should have sounded the alarm. They should have also tested the blood of every resident of Sunland Park. Instead the federal, state and local environmental regulators and public health officials held a public meeting and announced that everything was O.K. After its 2001 preliminary investigation of ASARCO’s contamination of the Paso Del Norte Region, the EPA announced that they were going to remove the contaminated soil from the residences. The EPA stated that timing for the removal of the soil was critical.
The environmental regulators knew full well that the brunt of the hit from ASARCO’s contamination of this region was taken by Ciudad Juarez Mexico and the Hispanic community of Sunland Park. (See Exhibit 01) Instead of removing the soil from the communities that ASARCO had hurt the worst, the EPA spent its funds removing toxic soil from the wealthy neighborhoods near ASARCO that they knew had been hurt the least. (See Exhibit 01) The residents of these wealthy areas are predominately white. The child care facilities, the schools or the playgrounds in Ciudad Juarez were not tested. The child care facility in Anapra was not tested. More than six years have elapsed since the date of the handwritten memo. Although urgent action was required to remove the toxic soil from the white, wealthy neighborhoods the EPA still has not tested the soil at the child care facility in Anapra, even though they recently came into Anapra, tested a few yards and found that a third of the yards that they tested were so dangerous the soil had to be removed. On July 14, 2004 the undersigned, a volunteer at the Anapra child care facility, asked a representative of New Mexico Border Health why they were not testing the children in Anapra for lead. She replied: “..the director of the Office of Border Health told me the children in Anapra who would have been affected by emissions from the ASARCO smelter have been tested already. In addition, the soil was tested and cleaned up.” (Exhibit 13 - Email Kerwin to Moore 7-15-2004) The director of New Mexico’s Office of Border Health at that time who was responsible for these false statements was Dan Reyna. He is presently the General Manager of the El Paso Office of Global Health Affairs within the US Department of Health and Human Services.
POTENTIAL CONFLICTS OF INTEREST The victims of the fraudulent concealment of ASARCO’s liabilities are ASARCO’s workers, its neighbors, federal, state and local taxpayers, and the unborn children who will be exposed to the contamination in the future. ASARCO’s purpose for filing the bankruptcy proceeding was to shift financial burden for ASARCO’s wrongdoing to these groups. The methods that are being used to shift the financial burden are fraudulent. One of these fraudulent methods is concealment of potential conflicts.
The beneficiaries of the fraudulent conduct small in number compared to the victims, but they are very powerful. The beneficiaries are the individuals and entities who will benefit from sweeping ASARCO’s environmental liabilities under the rug in the bankruptcy proceeding. Some hope to benefit by hiding potential liabilities. Others hope to benefit by the removal massive liabilities from ASARCO’s balance sheet when it emerges from the bankruptcy proceeding. It is impossible for the SPGEG to identify each person and entity participating in this proceeding that has a potential conflict of interest. As a general observation, every person participating in this proceeding that either knew, or should have known, that ASARCO has been concealing contamination in Corpus Christi and El Paso has a potential conflict of interest that must be disclosed to the bankruptcy court. There is no doubt that federal, state and local officials —even the Department of Justice was aware that ASARCO had poisoned Corpus Christi and El Paso with their hazardous waste incinerator and helped conceal that fact from the people who were being poisoned. These potential conflicts must be disclosed. The individuals working for the government agencies responsible for protection of the environment and public health have a high calling and owe a very high fiduciary duty to the people in the communities that are forced to trust them. In order to conceal ASARCO’s contamination from Anaprans the responsible officials had to betray their positions of trust. This was a crime because such misconduct deprived Anaprans of their rights under color of law, contrary to Title 18 U.S.C. Section 242 and an array of other federal and state criminal laws. The misconduct also exposed the officials to potential civil liability. The 1982 decision that betrayed Anapra thoroughly corrupted each of the agencies involved. After committing the original crime every subsequent decision about Anapra’s contamination presented the responsible government agents with critical conflicts of interest. How could they provide honest services to the people of ANAPRA without revealing the material fact that the last time they came to town they committed a crime? To this day every time an environmental regulator or public health official goes to Anapra the official is faced with a simple choice—they have to decide whether to protect the community or to protect themselves.
Time and again the SPGEG has asked these people to remove themselves from the decision making process because they have potential conflicts of interest. Instead of removing themselves they have joined with ASARCO’s efforts to get the bankruptcy court’s seal of approval on their prior misconduct. They hope that this will bury the problem long enough for them to escape. Entities such as the City of El Paso, which is potentially exposed to massive liability to individuals who were injured when they drank water containing undisclosed hazardous wastes, must disclose their potential conflicts. Others who hope to benefit by cleaning up ASARCO’s balance sheet have conflicts. Investors who hope to profit from the sale of assets and bankers who hope to collect fees have potential conflicts when they either know, or should know that liabilities are being concealed. Individuals and entities that either knew or should have known about ASARCO’s contamination of their community but benefited by winking and nodding at the problem have potential conflicts. Bankers who made loans on contaminated properties, lawyers and title companies who rendered title opinions that they either knew, or should have known were incorrect have potential conflicts. Lawyers who represented the bankers and title companies have potential conflicts.
REQUESTS We request the following: That you acknowledge receipt of this document. That you call the Notice of ASARCO Bankruptcy Fraud to the attention of each and every judge presiding over any matter related to ASARCO’s bankruptcy proceeding before any further action is taken in the ASARCO matter. We asked the U.S. Trustee to do this on October 16, 2007. The U.S. Trustee has refused to notify the Court. There is no innocent explanation for this refusal. That you call the Notice of ASARCO Bankruptcy Fraud to the attention of each governmental agency participating in the ASARCO bankruptcy proceeding and ask that appropriate steps be taken to prohibit conflicted individuals from further participation in the decision-making process. The removal of conflicted individuals must begin at your office in the Department of Justice and the U.S. Trustee’s office.
That you request the Judge presiding over any matter related to the ASARCO Bankruptcy proceeding to issue a “Call for Disclosures” to each individual and entity that has submitted to the jurisdiction of the Court. It is requested that the “Call for Disclosures” include this Notice of ASARCO Bankruptcy Fraud. The Handwritten memo (Exhibit 11) establishes that ASARCO has massive potential environmental liabilities in both Corpus Christi and the Paso Del Norte Region that are being concealed by both ASARCO and governmental entities. The proof is absolute. Both ASARCO and the governmental entities have submitted themselves to the jurisdiction of the bankruptcy court. They know what ASARCO has done that has poisoned both communities and they refuse to disclose what has happened to the people who are being poisoned. The bankruptcy court is the wrong place to go when one wants to conceal liabilities. THE SUNLAND PARK GRASSROOTS GROUP WANTS TO KNOW WHAT ASARCO HAS DONE TO THEM AND THEY WANT THE ANSWER FORTHWITH! The U.S. Trustee, like all other government officials who have been asked for this information, chose to ignore our request. There is a certain arrogance involved in allowing this bankruptcy proceeding to move forward while government officials conceal how badly our community has been poisoned! That you to respond to this notice in writing. In your response, we ask that you to make a good faith effort to address each of the exhibits that we attach to this Notice, together with the conclusions we draw from this evidence. That you take such further action as is appropriate under the circumstances.
CLOSE We thank you in advance for your prompt attention to this matter. If you have any questions please feel free to contact me. Yours truly,
Taylor Moore Member Sunland Park Grassroots Environmental Group
7108 Portugal El Paso, TX 79912 915/581-3813 CC: Judge Robert C. Pate [email protected] Sander L. Esserman [email protected] Paul M. Singer [email protected] Alan S. Tenenbaum [email protected] Jack L. Kinzie [email protected] Hal F. Morris [email protected] Jerry L. Ellington [email protected] Angela O’Connell [email protected] Bart Seitz [email protected] H. Chrisopher Mott [email protected] Tommy Jacks [email protected] Peter M. Lee [email protected] Daniel Rose [email protected] Charles R. Sterbach [email protected]
Hon. Ronald J. Tenpas Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice VIA Email @ [email protected]
RE: In Re ASARCO, LLC, DJ Ref. No. 90-11-3-08633
SUMMARY OF NOTICE This Notice relates to the efforts to settle ASARCO’s environmental liabilities in the bankruptcy court. It presents facts which demonstrate that massive liabilities are being concealed from the Court and that individuals guiding the settlements have conflicts of interest which have not been disclosed. It also requests that you take appropriate action. STATEMENT OF FACTS Background The Sunland Park Grassroots Environmental Group (SPGEG) consists of residents of El Paso, Texas, Sunland Park, New Mexico and Ciudad Juarez, Mexico. These cities comprise the Paso Del Norte Region, which has a combined population of approximately 3.5 million. For the last two years the group has met each week to address environmental issues that impact the Region. Approximately 20 people, from 11 to 83 years-old, attend the meetings. Most of the people these people live in a Sunland Park subdivision called Anapra, which is located in the bend of the Rio Grande River, two miles upstream from ASARCO’s El Paso Smelter. The prevailing winds took the smelter’s plume toward Anapra 25% of the time for over 100 years. (Exhibit 01 – Wind Rose) Mt. Cristo Rey also drains into Anapra. (Exhibit 02 – Anapra Looking South Toward ASARCO) The community is located in a sink which is protected from the Rio Grande by a levee. Poisons that either drain or blow into the community stay there because they are trapped by the levee. Sunland Park is one of the poorest cities in the United States. Anapra is, by far, the poorest subdivision in Sunland Park. Approximately 1200 people, all Hispanic, live in Anapra. Some have spent their entire lives in Anapra.
After being exposed to ASARCO’S contamination for so many years Anapra’s population vividly demonstrate symptoms of heavy metal poisoning. A large number of the children have learning disabilities and behavioral problems. The special education classes of the schools the children attend are almost entirely populated by Anaprans. Boys seldom finish high school—they go to jail. Nasty confrontations between officers from the Sunland Park Police Department and Anaprans are common. There is a high incidence of family violence. Police officers are afraid to go into Anapra alone when they respond to emergencies. Many of the girls get pregnant and drop out of school. They are often pregnant by the time they are fourteen years old. Because Anaprans don't finish high school they are unprepared to enter the work force. Unemployment is very high in Anapra. When people lack work they also lack hope. The despair of Anapra parents is multiplied by the fact that their children have learning disabilities and behavioral problems. Parents lay awake at night wondering what they have done wrong. The children suffer too. They feel it when they are unable to live up to their parents expectations. They feel it when they are singled out at school. Many have skin rashes and dental problems. Some have speech impediments. Every family in Anapra has at least one member with respiratory disease. Asthma, sinus infection, congestion, and severe headaches are a part of their daily life. Children who are vigorous one day are flat on their back when the air changes. They can't play. They can't attend school. Depression is abundant in Anapra. At least one person in every household has chronic fatigue and displays lack of interest in life. Anxiety and emotional problems are numerous. So is self-medication. The community has a severe alcohol and drug abuse problem. There is at least one alcoholic in almost every home in Anapra.
Sequence of Events The EPA recently tested the soil of 69 houses in Anapra. Over one third of the houses contained dangerous levels of lead or arsenic. (Exhibit 03 Albuquerque Journal 6-30-2007) The soil was removed from 25 homes. The SPGEG has reason to believe, and does believe, that an unbiased investigation is going to demonstrate that the EPA deliberately skewed the results of the Anapra soil tests to understate the severity the chemical contamination of Anapra.
ASARCO operated 24 hours a day, seven days a week, from 1887 until it was closed in February, 1999. While it was operating, the smelter deposited a heavy load of contamination on its neighbors—over 611 tons of lead in 1970, alone! (Exhibit 04 – Letter from Rosenblum to Ruckelshaus ) Throughout its history, ASARCO has deliberately concealed the fact that it was poisoning its neighbors. Its present position is that the contamination went straight up out of the stack and came straight down inside the boundary of its El Paso Property! It claims that only three spots outside its fence line were contaminated by its operation. This inherently incredible claim is central to the fraudulent scheme that the bankruptcy court is being asked to approve in this case. For most of its life El Paso was a company town, dominated by ASARCO. Important segments of the community helped ASARCO conceal the environmental contamination problem. For example, El Paso pediatricians, whose patients lived near ASARCO, did not to diagnose lead poison cases. (Exhibit 05 – 1972 Lead Committee Minutes) In 1972 the Center for Disease Control (CDC) attempted to expose the smelter contamination problem. Prominent El Paso pediatricians managed to defeat CDC’s effort with a health study that was funded by ASARCO. (Exhibit 06 – Letter from Rosenblum to Landrigan 1973) The physicians had potential conflicts of interest because they were exposed to liability for failure to diagnose lead poison. They concealed their potential conflicts of interest. They concealed the fact that their health study was funded by ASARCO. And they falsely claimed that the protocol used for their health study was the same as the protocol used by the CDC. ASARCO has relied upon the results of this study to understate its potential liabilities for many years. In 1982 the Washington Post published a story about concealment of ASARCO’s contamination of Anapra. (Exhibit 07 - Washington Post 4-281982) The reason that this large, national newspaper focused on Anapra was because New Mexico officials were publicly accusing the EPA of dragging its feet while ASARCO poisoned Anaprans. The New Mexico officials had proof that the soil in Anapra contained highest levels of lead in New Mexico; that some Anapra children’s blood contained dangerously high levels of lead, and that ASARCO was the source of the contamination.
After this brief encounter between the EPA and New Mexico officials, something rancid took place. Someone decided that the residents of Anapra weren’t worth saving. New Mexico officials turned their backs on Anapra. They stopped testing the children and soil in Anapra. Instead of trying to stop the sacrifice of an entire community, Anapra became their nasty little secret. Subsequent events show that the decision was a disaster. It resulted in the continuous exposure of the residents Anapra to ASARCO’s contamination from 1982 to the present day. Today over 1200 people live in Anapra. Three generations of Anaprans have been poisoned. The impact of the disastrous 1982 decision mushroomed in the late 1980’s when ASARCO decided to secretly turn its El Paso Smelter into a hazardous waste incinerator. ASARCO pretended that it was extracting metals from hazardous waste at its Encycle facility in Corpus Christi, Texas. They used this as a front to accept very dangerous wastes that contained no little or no recoverable metals. The fraudulent, high-risk operation in the middle of a large metropolitan area continued from the early 1990’s until the El Paso smelter was closed in 1999. It was only recently exposed by Heather McMurray, a member of SPGEG, whose persistence in pursuing an open records request finally paid off. (Exhibit 8 - New York Times 10-10-2006). This revelation took place long after the ASARCO bankruptcy proceeding was filed and long after disclosures were filed in the bankruptcy proceeding. ASARCO’s sham recycling operation exposed ASARCO each person acting in concert with ASARCO to enormous civil and criminal liability. Individuals who helped ASARCO conceal the fact that it was secretly exposing its workers and neighbors to these toxic materials are now helping ASARCO steer this proceeding through the bankruptcy court. They are concealing their conflicts of interest from the court. These include federal, state and local officials— even representatives from the Department of Justice. Many of the members of SPGEG were born after the date ASARCO’s smelter was turned into a hazardous waste incinerator. They have been exposed to the toxic material 24 hours a day, every day of their life. And the federal, state, and local officials who they are forced to trust have lied to them every day of their lives.
The City of El Paso’s water supply is especially vulnerable to ASARCO’s contamination. From March through October El Paso takes almost all of its water from the Rio Grande—just 2.9 miles below ASARCO. (Exhibit 09 Undated photo showing the distance between ASARCO and the Canal Street Water Treatment Plant) The water is pumped from the Canal Street Water Treatment Plant through three large pipes (48” 36” and 20”) to reservoirs on Mount Franklin where it is distributed by gravity all over the city. Thus everybody who drinks El Paso’s water is exposed to ASARCO’s poisons. The Canal Street Water Treatment Plant is a grandfathered facility that deposits its waste back into the American Canal, which delivers the water from the river to the water treatment plant. After the waste is dumped back into the canal, the water is used to irrigate crops and lawns throughout the lower valley of El Paso. Because the hazardous waste incineration was kept secret, it was impossible to protect El Paso’s water supply from the toxic substances from ASARCO. In 1992 ASARCO replaced its furnaces with two CONTOP reactors. ASARCO ran these two reactors at more than 2,000 degrees centigrade attempting to incinerate the toxic material. This was a much higher temperature than was necessary to smelt copper. They burned up both reactors. While the reactors were inoperable, the incoming hazardous material accumulated at the smelter. Every wind event or water event moved poison downhill, where it would end up in the American Canal, which delivered the poison to the Canal Street Water Treatment Plant. (See Exhibit 09)
In 1996 the Camino Real Landfill applied to renew its operating permit. This is New Mexico’s largest dump. It accepts waste from throughout the Paso Del Norte Region. Some of the waste comes from as far away as Chihuahua City, Mexico. Sunland Park residents had reported skin, eye, nose and throat problems. New Mexico Border Health Office and the Agency for Toxic Substances and Disease Register (ATSDR), claiming that they were responding to residents health concerns, fabricated a “health consultation.” The agencies also said that they wanted to determine whether ASARCO was the source of toxic substances that were making the residents sick. (Exhibit 10 - 1997 ATSDR Health Consultation). The authors of the “health consultation” were fully aware of the 1982 study that found that ASARCO was poisoning Anapra; that Anapra had the highest lead levels in the state of New Mexico and that some of the children had dangerous levels of lead in their blood. By 1996 things had gotten much worse in Anapra because ASARCO had operated continuously for fourteen years after the 1982 study, adding substantial additional contamination that was trapped in the community by the levee. Nevertheless, the study concluded that the levels of contamination were not at levels that could cause health problems for most residents and that no single industrial source of the contamination could be found. The authors reached this result by cooking the data. They pretended that the community of Anapra didn’t exist. Anapra is the Sunland Park subdivision that is closest to ASARCO. Pretending that Anapra didn’t exist was extremely high-risk fraudulent conduct because it is so easily exposed. A map included in their study shows that they took their data two miles upstream from Anapra. The hearing examiner, who granted the landfill’s application to renew the permit, relied heavily on the ATSDR’s “health consultation.” Jennifer Lykes, one of the authors of the ATSDR health consultation was present at a public meeting the EPA held in Sunland Park in July, 2005. Asked if she intentionally concealed the fact that ASARCO was contaminating Sunland Park she replied, “Not intentionally.” In the summer of 2001 the same federal, state and local environmental regulators and public health officials who had been concealing ASARCO’s contamination from the people who were being poisoned again descended on El Paso and Sunland Park. This was a highly publicized event. The officials expressed alarm because, they said, a student working on his master’s degree in geology at New Mexico State University had found dangerous levels of lead, cadmium and arsenic on the campus of the University of Texas at El Paso. They announced that the public health was threatened. They claimed that they were especially worried about the children. They rushed to El Paso to determine whether it would be necessary to close the schools, the parks and the child care centers.
The EPA took charge. They named their effort the El Paso – Dona Ana Metals Survey. From its inception, the “survey” was bogus. A handwritten EPA memo dated June 28, 2001 states, “TNRCC is concerned that the El Paso sampling plan doesn’t undermine the ASARCO Corpus sampling delima.” (sic) (Exhibit 11 - handwritten memo 6-28-2001) There are several inescapable inferences from this sentence which include:
That ASARCO has poisoned Corpus Christi, Texas and the Paso Del Norte Region; That the contamination resulted from ASARCO’s fraudulent metal recycling scheme; That the contamination is dangerous and will adversely affect the health and welfare of the people who live and work in Corpus Christi and the Paso Del Norte Region until it is removed. If the contamination was not dangerous the parties would simply announce that “ASARCO had an accident but it won’t hurt anyone—here’s what it is;” That ASARCO either cannot, or will not clean the contamination up; That officials from both the EPA and the TNRCC are aware of the substances contaminating both Corpus Christi and the Paso Del Norte Region; That the federal and state regulators have been compromised and are acting in concert with ASARCO; When the EPA came to El Paso to begin their “survey” they recited a history of the events that they said caused them to believe ASARCO had contaminated El Paso. The history concealed the fact the officials knew that ASARCO had secretly operated a hazardous waste incinerator in the middle of this major metropolitan area.
How bad is the contamination that ASARCO and the government officials have been hiding? A laboratory report dated August 16, 2001 (six weeks after the handwritten memo) gives us a clue. (Exhibit 12 - Lab Report dated 8-17-2001). Four soil samples were taken from the Sunland Park Water Tower which is located on Mt. Cristo Rey near the intersection of Racetrack Drive and McNutt Road. The water tower is located further upstream from ASARCO than Anapra uphill from Sunland Park’s city hall. This water tower was erected in the early 1990’s—shortly after ASARCO began to operate the hazardous waste incinerator. In order to erect the water tower it was necessary for a bulldozer to level the site, scraping away the contamination that had accumulated during the hundred years since ASARCO had commenced its operations in 1887. The SPGEG has reason to believe and does believe that the EPA tested the site for all of the toxic substances that they believed were generated by ASARCO’s hazardous waste operation. But the lab report that the EPA published only includes the results for lead and arsenic. The four results for arsenic were 65.2, 172.0, 169.0 and 197.0 mg/kg, respectively. A sentence from the handwritten memo, dated six weeks before the lab report, stated “ATSDR thinks 20 – 24 is too high for As (Arsenic) in the soil.” The four results for lead were 215.0, 1070.0, 1080.0 and 1210.0 mg/kg. The screening levels for removal of soil in El Paso were set at 500 p.p.m. This dangerous accumulation of toxic material resulted from ASARCO’s operation during a relatively short span of less than ten years! The smelter was closed in February, 1999. As soon as the EPA received these results they should have sounded the alarm. They should have also tested the blood of every resident of Sunland Park. Instead the federal, state and local environmental regulators and public health officials held a public meeting and announced that everything was O.K. After its 2001 preliminary investigation of ASARCO’s contamination of the Paso Del Norte Region, the EPA announced that they were going to remove the contaminated soil from the residences. The EPA stated that timing for the removal of the soil was critical.
The environmental regulators knew full well that the brunt of the hit from ASARCO’s contamination of this region was taken by Ciudad Juarez Mexico and the Hispanic community of Sunland Park. (See Exhibit 01) Instead of removing the soil from the communities that ASARCO had hurt the worst, the EPA spent its funds removing toxic soil from the wealthy neighborhoods near ASARCO that they knew had been hurt the least. (See Exhibit 01) The residents of these wealthy areas are predominately white. The child care facilities, the schools or the playgrounds in Ciudad Juarez were not tested. The child care facility in Anapra was not tested. More than six years have elapsed since the date of the handwritten memo. Although urgent action was required to remove the toxic soil from the white, wealthy neighborhoods the EPA still has not tested the soil at the child care facility in Anapra, even though they recently came into Anapra, tested a few yards and found that a third of the yards that they tested were so dangerous the soil had to be removed. On July 14, 2004 the undersigned, a volunteer at the Anapra child care facility, asked a representative of New Mexico Border Health why they were not testing the children in Anapra for lead. She replied: “..the director of the Office of Border Health told me the children in Anapra who would have been affected by emissions from the ASARCO smelter have been tested already. In addition, the soil was tested and cleaned up.” (Exhibit 13 - Email Kerwin to Moore 7-15-2004) The director of New Mexico’s Office of Border Health at that time who was responsible for these false statements was Dan Reyna. He is presently the General Manager of the El Paso Office of Global Health Affairs within the US Department of Health and Human Services.
POTENTIAL CONFLICTS OF INTEREST The victims of the fraudulent concealment of ASARCO’s liabilities are ASARCO’s workers, its neighbors, federal, state and local taxpayers, and the unborn children who will be exposed to the contamination in the future. ASARCO’s purpose for filing the bankruptcy proceeding was to shift financial burden for ASARCO’s wrongdoing to these groups. The methods that are being used to shift the financial burden are fraudulent. One of these fraudulent methods is concealment of potential conflicts.
The beneficiaries of the fraudulent conduct small in number compared to the victims, but they are very powerful. The beneficiaries are the individuals and entities who will benefit from sweeping ASARCO’s environmental liabilities under the rug in the bankruptcy proceeding. Some hope to benefit by hiding potential liabilities. Others hope to benefit by the removal massive liabilities from ASARCO’s balance sheet when it emerges from the bankruptcy proceeding. It is impossible for the SPGEG to identify each person and entity participating in this proceeding that has a potential conflict of interest. As a general observation, every person participating in this proceeding that either knew, or should have known, that ASARCO has been concealing contamination in Corpus Christi and El Paso has a potential conflict of interest that must be disclosed to the bankruptcy court. There is no doubt that federal, state and local officials —even the Department of Justice was aware that ASARCO had poisoned Corpus Christi and El Paso with their hazardous waste incinerator and helped conceal that fact from the people who were being poisoned. These potential conflicts must be disclosed. The individuals working for the government agencies responsible for protection of the environment and public health have a high calling and owe a very high fiduciary duty to the people in the communities that are forced to trust them. In order to conceal ASARCO’s contamination from Anaprans the responsible officials had to betray their positions of trust. This was a crime because such misconduct deprived Anaprans of their rights under color of law, contrary to Title 18 U.S.C. Section 242 and an array of other federal and state criminal laws. The misconduct also exposed the officials to potential civil liability. The 1982 decision that betrayed Anapra thoroughly corrupted each of the agencies involved. After committing the original crime every subsequent decision about Anapra’s contamination presented the responsible government agents with critical conflicts of interest. How could they provide honest services to the people of ANAPRA without revealing the material fact that the last time they came to town they committed a crime? To this day every time an environmental regulator or public health official goes to Anapra the official is faced with a simple choice—they have to decide whether to protect the community or to protect themselves.
Time and again the SPGEG has asked these people to remove themselves from the decision making process because they have potential conflicts of interest. Instead of removing themselves they have joined with ASARCO’s efforts to get the bankruptcy court’s seal of approval on their prior misconduct. They hope that this will bury the problem long enough for them to escape. Entities such as the City of El Paso, which is potentially exposed to massive liability to individuals who were injured when they drank water containing undisclosed hazardous wastes, must disclose their potential conflicts. Others who hope to benefit by cleaning up ASARCO’s balance sheet have conflicts. Investors who hope to profit from the sale of assets and bankers who hope to collect fees have potential conflicts when they either know, or should know that liabilities are being concealed. Individuals and entities that either knew or should have known about ASARCO’s contamination of their community but benefited by winking and nodding at the problem have potential conflicts. Bankers who made loans on contaminated properties, lawyers and title companies who rendered title opinions that they either knew, or should have known were incorrect have potential conflicts. Lawyers who represented the bankers and title companies have potential conflicts.
REQUESTS We request the following: That you acknowledge receipt of this document. That you call the Notice of ASARCO Bankruptcy Fraud to the attention of each and every judge presiding over any matter related to ASARCO’s bankruptcy proceeding before any further action is taken in the ASARCO matter. We asked the U.S. Trustee to do this on October 16, 2007. The U.S. Trustee has refused to notify the Court. There is no innocent explanation for this refusal. That you call the Notice of ASARCO Bankruptcy Fraud to the attention of each governmental agency participating in the ASARCO bankruptcy proceeding and ask that appropriate steps be taken to prohibit conflicted individuals from further participation in the decision-making process. The removal of conflicted individuals must begin at your office in the Department of Justice and the U.S. Trustee’s office.
That you request the Judge presiding over any matter related to the ASARCO Bankruptcy proceeding to issue a “Call for Disclosures” to each individual and entity that has submitted to the jurisdiction of the Court. It is requested that the “Call for Disclosures” include this Notice of ASARCO Bankruptcy Fraud. The Handwritten memo (Exhibit 11) establishes that ASARCO has massive potential environmental liabilities in both Corpus Christi and the Paso Del Norte Region that are being concealed by both ASARCO and governmental entities. The proof is absolute. Both ASARCO and the governmental entities have submitted themselves to the jurisdiction of the bankruptcy court. They know what ASARCO has done that has poisoned both communities and they refuse to disclose what has happened to the people who are being poisoned. The bankruptcy court is the wrong place to go when one wants to conceal liabilities. THE SUNLAND PARK GRASSROOTS GROUP WANTS TO KNOW WHAT ASARCO HAS DONE TO THEM AND THEY WANT THE ANSWER FORTHWITH! The U.S. Trustee, like all other government officials who have been asked for this information, chose to ignore our request. There is a certain arrogance involved in allowing this bankruptcy proceeding to move forward while government officials conceal how badly our community has been poisoned! That you to respond to this notice in writing. In your response, we ask that you to make a good faith effort to address each of the exhibits that we attach to this Notice, together with the conclusions we draw from this evidence. That you take such further action as is appropriate under the circumstances.
CLOSE We thank you in advance for your prompt attention to this matter. If you have any questions please feel free to contact me. Yours truly,
Taylor Moore Member Sunland Park Grassroots Environmental Group
7108 Portugal El Paso, TX 79912 915/581-3813 CC: Judge Robert C. Pate [email protected] Sander L. Esserman [email protected] Paul M. Singer [email protected] Alan S. Tenenbaum [email protected] Jack L. Kinzie [email protected] Hal F. Morris [email protected] Jerry L. Ellington [email protected] Angela O’Connell [email protected] Bart Seitz [email protected] H. Chrisopher Mott [email protected] Tommy Jacks [email protected] Peter M. Lee [email protected] Daniel Rose [email protected] Charles R. Sterbach [email protected]
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