US Pays Asarco $15M To End Nebraska Superfund Cleanup Dispute
In December of 2012, the US Federal Government and ASARCO reached a settlement in which the US agreed to pay ASARCO $15 million to end a long-lasting dispute about the company’s liability for the contamination of the Omaha Lead Site, on-going since 2009. ASARCO alleged that the United States EPA concealed and destroyed documents that investigated the contributions of guilty parties charged with the contamination of the Omaha Lead Site.
In ASARCO’s previous 2009 bankruptcy proceedings, the two parties had agreed on a $219.5 million settlement for the toxic contamination of Omaha soil. ASARCO however, later contended that this settlement exceeded the company’s true liability at the site and demanded a refund of its overpayment to the EPA. They argued that the lead contamination at the Superfund site was due to lead-based paint from the surrounding housing stock, rather than the lead smelter that ASARCO had operated nearby. ASARCO claimed that the lead smelter “had been closed and fully remediated in an award-winning environmental cleanup”.[1] It followed then, that the US Department of Housing and Urban Development was responsible for the lead contamination. If this claim held, then ASARCO’s legal and monetary liability to the Superfund site would be greatly diminished, and the EPA would be forced to return significant funds to ASARCO.
ASARCO also argued that the EPA engaged in fraudulent research to determine the extent of liability. They pointed to emails from the project manager of the Omaha Lead Site who “allegedly instructed his workers to delete emails related to the source of contamination at the site because they would likely be subject to the Freedom of Information Act and discovery requests later”.[2]
The federal government disputed all of ASARCO’s allegations regarding fraud, overpayment of liabilities, misrepresentations, and improper non-disclosure. They held that the original Omaha Lead Site Settlement remained fair, accurate, and correctly represented the level of contamination by ASARCO’s lead smelter. The government further contended that ASARCO’s lawsuit was untimely and “without factual or legal basis and contrary to the Omaha Lead Site settlement, and that [ASARCO] lacks standing”.[3]
ASARCO and the federal government agreed to resolve all disputes related to the Omaha Lead Site in 2012 with this $15 million settlement. The EPA thus reduced the remediation funds charged to ASARCO to $204.5 million total.
This legal dispute highlighted the continuing challenges the EPA faced holding companies and corporations responsible for environmental degradation. Regardless of the contribution of residential lead-paint contamination to the overall severity of what became the Omaha Superfund Site, the presence of ASARCO and the detrimental effects of industrial lead exposure are undeniable.[4]
This summary of the US and ASARCO dispute demonstrates the principal challenge the EPA faced in the naming of guilty parties and the subsequent challenge of charging for liabilities. While determination of liability presents several arbitrary decisions to be made and several holes to find in such decisions, legal disputes like this one complicate the fulfillment of the EPA’s goal to make responsible parties pay for clean-up.
[1] Rodriguez, Juan Carlos. “US Pays Asarco $15M To End Neb. Superfund Cleanup Dispute.” Law 360. December 12, 2012.
[2] Ibid.
[3] Ibid.
[4] “Lead Regulations.” EPA. Environmental Protection Agency, April 3, 2017. https://www.epa.gov/lead/lead-regulations.