Legal opinion on Asarco reveals little

By Evan Mohl / El Paso Times

Two months after a final decision to demolish the emblematic Asarco smokestack, the city of El Paso continues to spend time and money on the issue, elongating an already drawn-out, contentious and costly debate.

At the request of Reps. Susie Byrd and Steve Ortega, city attorney Sylvia Borunda Firth sought a legal opinion on the authority of Asarco trustee Roberto Puga, the man in charge of cleaning the site and selling it. The City Council then took the rare, almost unprecedented step on Monday and waived attorney-client privileges and release the findings after a contentious, heated 5-3 vote.

The council met on Monday instead of today because some of the elected officials will be in Austin today to meet with state legislators.

The opinion, which did not appear to reveal anything new or unknown, indicated the city had little control at this point. The demolition was announced last December and on Nov. 27, the council declined to buy the stack for $10 million and approved a resolution to support the preservation with “no financial obligation.”

“There is no requirement for the Trustee, Texas Commission on Environmental Quality and Environment Protection Agency to follow the city’s input or accept its proposed plan,” the opinion stated.

Instead, the document prepared by Austin-based attorney Erich Birch sparked more controversy and a heated hour-long debate. Rep. Cortney Niland argued that using taxpayer money to hire an outside lawyer was a financial commitment.

“This council took clear opinion that if it could preserve the stack, it did not want to extend financial services,” said Niland, who claimed she wasn’t consulted and represents the Asarco area. “An outside lawyer is money. We said we wouldn’t spend money.”

Resident Peggy McNiel spoke at Monday’s meeting, raising issues of potential danger with lead and arsenic on the site. She also questioned whether the council could accept a deadline. Puga made the decision to demolish the stack after a year of public dialogue, he said.

Byrd said she believed the document would shed light that demolition is not the only answer. Save the Stacks founder Robert Ardovino, who had not seen the opinion, said the lawyer’s opinion would probably reflect the five lawyers’ opinions he’s already received and paid for.

Mayor John Cook, who put the item on the agenda and voted to preserve the stacks with no financial commitment, agreed. He said Puga’s latitude was not clear, wondering if all options had been explored and if the city’s decisions might have been different.

McNeil responded: “With all due respect, you shouldn’t charge taxpayers for intellectual curiosity.”

The opinion attempted to answer three questions: Could Puga donate the stack? Could Puga use his funds to restore the stack? Could Puga lease the stack to a governmental or nonprofit organization for a nominal fee?

Birch answered yes to all three questions, but there were several caveats, highlighting a debate that has several gray areas. The opinion repeated several times the solution had to further the objectives of the Asarco Trust.

Puga listed the objectives as addressing the contamination, cleaning and remediating the area and maximizing the return to the trustee while taking into account the city master plan and environmental factors.

The biggest sticking point is the definition of maximizing return. Preservationists argue that the stack — the taller one which was built in 1967 — should stand as a memorial to El Paso’s economy and hard work.

They claim Puga has also changed his estimates and that preservation could be done for about $2.5 million.

Puga, who had not read the legal opinion, said the situation is complicated.

“There is all kinds of lead and arsenic and other harmful material in the area,” Puga said. “Part of my responsibility is to make sure that when I do transfer the land, that it’s taken care of. So, if you give it to the city, I have to wonder if they have the money to stabilize the structure, clean it up, get insurance and maintain the structure.”

No study has been done on the long-term effects of leaving the stack up, Puga said. He said the trust, valued now at $78 million after Puga recycled materials on the site, could not provide long-term maintenance and he wondered about the value of the land if the stacks remain.

Reps. Ann Morgan Lilly, Niland and Michiel Noe voted against releasing the documents to the public.

“Could you imagine the liability for the city if someone else was to take this over,” Noe said. “It could be catastrophic.”

Evan Mohl may be reached at; 546-6381. Follow him on Twitter @EvanMohl