In re ASARCO et al.: Amended Settlement Agreement and Consent Decree Regarding Residual Environmental Claims for the Coeur d'Alene, Idaho, Omaha, Nebraska, and Tacoma, Washington Environmental Sites

This artifact gets to the heart of the question, “did the Environmental Protection Agency accomplish their goal of holding responsible parties financially responsible for the pollution of the Omaha Lead Site?” This document contains the Federal Government’s estimates of ASARCO's liability in the remediation of the Omaha Lead Site. ASARCO owed an estimated $406 million to the US Government and over $2.3 million to the State of Nebraska. This is higher than the amount estimated in the Omaha World-Herald 2002 article.

This settlement agreement outlines what ASARCO should pay to fulfill its liability. The document frames the settlement as comprehensive, covering all the claims by the United States and the State of Nebraska. This includes all past and future costs of the work performed at the Omaha Lead Site. The document declares in bold language that, “this Settlement Agreement is in the public interest, is fair and reasonable, and is an appropriate means of resolving this matter.” However, the agreement was also settled without any admission of liability for ASARCO. This means that although the government forced ASARCO to pay for remediation, they were never held legally responsible.

 But the question remains: did ASARCO pay? Paragraphs 7 & 8 of this document addresses these questions. Paragraph 7 states that to satisfy all claims from the Federal Government in relation to the Omaha Lead Site, ASARCO paid $186.5 million. To satisfy the claims from the state of Nebraska, ASARCO paid $1 million. In other words, between these two payments, ASARCO paid less than 50% of the estimated damages they owed to the US Government and the State of Nebraska.

With this in mind, it is hard to say the government aptly held ASARCO responsible for their actions. It is important to note that the settlement was part of a bankruptcy hearing for ASARCO. However, the government could have held ASARCO more responsible for the pollution of the Omaha Lead Site. ASARCO is still operational today and as a subsidiary of Grupo México, the largest mining corporation in Mexico. The inadequate settlement seen in this case is part of a larger pattern of behavior from the EPA.

In Toxic Assets: The EPA’s Settlement of CERCLA Claims in Bankruptcy, Blair notes that another EPA settlement with ASARCO was “the largest recovery of money for environmental cleanup in U.S. history.” While this settlement recovered $1.8 billion, this was less than the total cost of clean-up at the 26 Superfund sites ASARCO is responsible for.[1] Further, Blair finds the EPA struggles at dealing with potentially responsible parties who declare bankruptcy. In these cases, the EPA tends to settle for less than their estimates of cost and does not use all the enforcement tools at their disposal (Blair 2011). The EPA may behave in this way due to political or budgetary constraints. Nonetheless, the fact remains that this behavior represents a failure to provide environmental justice on the part of the EPA. By evading the full cost of their pollution, ASARCO forced the public to subsidize their damaging and irresponsible behavior.

[1] Blair, Scott E. "Toxic Assets: The EPA's Settlement of CERCLA Claims in Bankruptcy." New York University Law Review 86, no. 6 (December 2011): 1941-1988.