On Monday, City Council voted 5 to 3 to suspend attorney-client privilege and release the findings of a ruling about the Trustee's authority to donate the stack to the City of El Paso or a non-profit.
The principle quesiton was: "Does the Trustee have the authority to convey at no cost, i.e., donate, the stack to another owner, e.g., the City or a non-profit organization formed for the purpose of preserving the stack?"
The answer: Yes, but. "The Trust does not appear to prohibit donation of the stack, if the donation will advance the objectives of the Trust. However, the proposed donation would be evaluated in light of other competing interests of the Trust, and requires approval of TCEQ and EPA."
Translation: TCEQ will never approve doing anything with the stack but demolishing it. Therefore, in early April, Puga will carry out the destruction of the stack barring any unforeseen events.
Save the Stacks issued this memo of Puga misinformation:
"From the outset Mr. Puga was willing to consider leaving the
stacks standing--we now know that his intention all along was to demolish, and
he never gave us a second thought.
If we proved they were stable and we could provide an owner
with means to guarantee any liability, then he would preserve them--we proved
they were stable, and the city offered to accept ownership, yet he backed out
of his promise.
He claimed from the outset that he had $52M to clean up the El
Paso site--that figure included clean-up of the Amarillo site, leaving the
funds available for El Paso much less.
Cost to preserve and maintain the stacks over 50 years will
exceed $14 million--most of this is a guess at the insurance costs for
"liability"; the rest are guesses at the repair, preservation and
maintenance. Our engineering report shows the actual costs are estimated
at $3.9 million, including $950,000 in hazards remediation that Puga must spend
regardless.
His contention that the stacks are unstable is based on absolutely no
engineering analysis; the actual engineering analysis based on physical
inspection show the main stack structurally sound and meets all required
standards. It has stood the test of time of almost 50 years with no
structural flaws. Minor repairs to the scaffolding, upper rim and
painting are the only issues found by the engineers.
"Demolition and burial of the stacks is the best environmental
solution given their hazardous condition." Actually, demolition and burial will
likely create more problems environmentally than simply leaving them where they
are. The burial pit itself is part of the Parker Brothers arroyo, a
major geological part of the site where Mother Nature has determined that the
Franklin Mountain water runoff has and will flow for centuries. The
proposed "encapsulation" with a membrane lining and
"monolayer" cap will likely erode with time (anywhere from 10 to
50 years) depending on the actual physical conditions of the materials, amount
of overburden, the amount of ground water flow, etc. No independent third
party has analyzed the technical risk/viability of the proposed
encapsulation. Any leakage will have a direct passage to the Rio
Grande. It's not a matter of if, just when. Environmentally, it
would be better to keep the stacks above ground where the inner linings could
be easily sealed and monitored, indefinitely.
He claims the cost of demolition is a million bucks--our
engineering team thinks it is much higher than that.
"He has no authority to preserve or spend money to maintain
the stacks." Legal analysis of the trust agreement under which he acts gives him
broad authority to do pretty much anything he wants to with the stacks and/or
the property, including spending some of the money he has for their
preservation and maintenance. He has already said he would spend funds
for "cultural' and "historical" preservation of the plant
offices and the power house.
"He has no authority to simply deed the stacks or related
property to El Paso or any other entity." Legal analysis again says he has wide
latitude in how he disposes of the property, including giving it away to the
city or other entity.
"He must realize the greatest profit from sale of the
property, thereby limiting how he disposes of the property." The answer is the same as above on
legal authority; he can 'sell, transfer, or otherwise dispose of all or
part of such properties, if possible' and and may 'consider
criteria other than sales price' in disposal of the property. Profit
does not enter into the equation.
"The city must pay him $10 million for the property
associated with the stacks, as a 'fair assessed value' of the
land." This contention was literally pulled out of thin air. There is no analysis of
the 'fair assessed value' of this land, in part because of the
ongoing liability and related costs. Actual analysis of the property
values taking into account the liability and other issues, actually show the
property as a net, negative value."
"The presence of the stacks reduces the value of the
property." Again there is no analysis to back up this statement. The
stacks in fact, properly preserved and maintained will like be an attraction to
anyone looking to build appropriate land use value to this part of the
property. Projects in Pittsburgh, Baltimore and Monterrey, Mexico are
examples of how communities have transformed similar industrial sites into
economic and cultural centers for those communities.
Mr. Puga has claimed the east side (by UTEP) will be livable--the
TCEQ told the UT Administration that there is no chance that the east side will
be remediated sufficiently for housing.
He misrepresented the one inquiry he was able to provide
information about – the email that showed an interested buyer wanted to do
military training -- a questionable use for many reasons. While some of those
reasons are subject of a different debate, for our purposes 1) there’s almost
no taxable value associated with that use, so that raises further questions
about his projects and 2) with regard to the stacks, their objection was first
and foremost that the presence of the stacks implied public access, with the
issue of liability a secondary concern but not a deal-killer."
In addition Mr. Puga has not allowed independent verification of the contaminants on the site. Thus there is no confirmation of his assertion that more toxic materials will not be "encapsulated".
Nevertheless, many environmentally-concerned and conscientious citizens maintain that the safest solution is to bring the stacks down and that it is high time to do so since Mr. Puga gave efforts to save the stacks time to come up with funding. In a letter to Senator Rodriguez dated January 27, 2013 (pre-dating the decision by Council to release the ruling) environmental activist, Peggy McNiel, wrote:
"I was astounded and dismayed that you are supporting taxpayer funds being allocated to preserve the Asarco smokestacks.
This idea has already been presented to our city council and voted down. Taxpayers in the city of El Paso do not support funding the preservation of the Asarco smokestacks. Please do not take this outside the purview of the taxpaying voters who will have to pay for this if you succeed.
What is surprising is that you are not fighting for additional funds to further clean-up the site--including demolition of the stacks--to make it more conducive to all types of development not just commercial---a worthy endeavor for an environmentally conscious individual.
Some facts you may not be aware of:
1)Remediation of the site has always included demolition of the smokestacks because of their danger to the public. To quote from the TCEQ's engineer who authored the remediation plan. "The lack of routine maintenance will accelerate deterioration of the buildings and structures. The deterioration of the structures will pose a hazard to any unauthorized persons and, as is the case with the smokestacks and the bridge over I-10, will pose a direct hazard to the public."
This was written in 2009. It is 4 years later. Do you really want to champion funding of a "direct hazard to the public".?
2) The Lone Star Chapter of the Sierra Club regards the smokestacks as "toxic waste" in their public comments to the Assistant Attorney General, Environmental and Natural Resources Division, U.S. Department of Justice, Washington D.C.
Their public comments were written by one of their PHDs.
3) The Asarco stacks in both Tacoma, Wash. and Omaha, Nebraska were both demolished as part of their remediation plans for their sites. I talked to the on site manager for Citizens for a healthy bay, Ms. Leslie Rose, in Tacoma, Wash. regarding their stack demolition. She practically jumped out of the phone to say, "Controlled demolition is safer than leaving the stacks up and not properly maintaining them." She asks why would you want to leave the stacks as a liability for future generations. The Tacoma stacks were demolished according to their EPA directed remediation plan. She went on to say that if the stacks remain, someone is always responsible for costly maintenance. An uncontrolled, unplanned failure of the stacks could be catastrophic and end up killing people. Maybe, not now, but at some point, the stacks will have to be demolished.
The Asarco trustee has hired independent experts who put the cost to stabilize the 826 ft stack at $6 million up front and $100,000 to $150,000 per year ad infinitum. Later Mr. Puga said further up front wind stabilization would be required at an additional cost of at least $4 million. This is to adequately preserve the stacks.
The Save the Stacks group immediately rejected these costs of safety even before they had conducted a study. At the City Council meeting, their firm estimated the costs at $4 million over 50 years compared to the trustee's study that the cost would be $14 million plus the wind retrofitting of $4 million plus over 50 years. Puga has rejected their proposal as not adequate. Puga is the man I trust backed by the TCEQ and the EPA not some locals without the proper training and experience to judge which study is valid. The Save the Stacks hired firm admitted in the council meeting that they did not consider the threat of wind to toppling the stacks. Yet the Save the Stacks group continues to say it will only require $4 million.
4) Ms. Rose of Tacoma also offered that if the stacks had remained, no one would buy the property for development. This is the same objection reported by Puga in his initial attempt to find interested buyers.
El Paso needs taxpaying entities. We don't need a blighted site.
5) There is nothing remarkable about these stacks other than the extent of their pollution and cost of preservation. There are 31 taller stacks in the U.S. The tallest one is 1217 ft. in Homer, Pa. Of the 31, 21 stacks are 1000 ft. or taller. The Asarco stacks were not designed by Trost. They were built in 1966 in a standard manufacturing process.
6) In a poll conducted by an independent research firm for the El Paso, Times, 80% of the polled were against stack preservation if the taxpayer would be required to fund it. The Save the Stacks group keeps referring to a poll where 70% are for stack preservation. They have never referenced the research firm who conducted the poll, the sample size and the reliability factor.
7) Mr. Puga has given the public 2 years and extended deadlines twice to provide any group every opportunity to come up with the funding to safely preserve the stacks. The current group has not been able to come up with their own funding. So they embarked upon a scheme to offload the liability and cost to adequately and safely preserve the stacks onto the taxpayer. This was voted down in the El Paso City Council by a majority. Now this group is going to you Senator to extract funds from the Texas Parks and Wildlife Dept. for preservation of polluted stacks. At a time when our state parks are underfunded, why would anyone wish to cut additional funds from our mountains, beaches and parks to fund these polluted stacks? Help me.
I urge you to allow the original remediation plan to go forward and support the trustee, Mr. Puga, the TCEQ and the EPA to clean up the polluted site and demolish the polluted, dangerous smokestacks in the interests of the environment and the health and safety of the citizenry.
These are my own opinions most of which are shared by a group of us who are against stacks preservation. We are now about 60 and counting. All of us do not want our taxes--local, state or federal allocated to preserving the polluted smokestacks.
If you wish to meet with me and discuss this further, I would be happy to go over the extensive documents and references further.
Thank you for your service,
Peggy McNiel"
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