Source: El Paso Times, April 25, 2013
By: Diana Washington Valdez

Asarco alleges in a federal lawsuit that two Cemex units are responsible for lead and arsenic contamination found in or near the International Boundary and Water Commission site in West El Paso, and is asking the court to order Cemex to share in the $19 million of cleanup costs.
The case, filed last year, is scheduled to go to trial June 7 in U.S. District Judge Phil Martinez’s court.
“Defendants Cemex Inc. and Cemex Construction, and their predecessor companies, including Jobe Concrete Products Inc. and RMC Group PLC, contributed a significant source of lead and arsenic to the site,” Asarco’s lawsuit alleges.
In the lawsuit, Cemex Inc. refers to a Louisiana corporation, and Cemex Construction Materials South LLC refers to a Delaware limited liability company. The International Boundary and Water Commission, or IBWC, refers only to the U.S. section of the border agency.
The lawsuit state, “Defendants Cemex Inc. and Cemex Construction’s operations (including their predecessors’ companies) at their owned facility have contaminated the area with known lead and arsenic concentrations of at least 490 mg/kg and 29 mg/kg, respectively. Defendant Cemex Inc.’s operations (including their predecessor companies) also released or disposed of particulates (including lead and arsenic) that have contributed to the contamination at the site.”
The contamination might have seeped into the surrounding soil and into the water of the Rio Grande, Asarco’s lawyers allege.
In a response filed with the court, Cemex stated, “Cemex has not disposed of, or arranged for the disposal of, any hazardous substances at the site, and therefore is not liable under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).”
El Paso lawyer Andres Almanzan, who represents Cemex, declined to comment.
Sara Engdahl, a spokeswoman for Cemex in Los Angeles, said Wednesday, “(T)ypically, we don’t comment on pending litigation.
However, we do feel that the allegations Asarco raised against us are baseless, and we plan to defend ourselves vigorously.”
RMC Group PLC was a global company formerly based in England that Cemex Inc. acquired in 2006, according to court records.
Gregory Evans, a lawyer in Los Angeles who represents Asarco LLC, said he plans to call Stanley Jobe, the El Paso businessman who owns Jobe Concrete, to the stand once the trial gets underway.
“We want him to answer under oath whether or not he was aware of the hazardous materials that were found on his company’s property near the IBWC,” Evans said. “Asarco has taken responsibility for the industrial contamination of its plant in El Paso. This means that Cemex and Stanley Jobe can no longer hide behind the shadow of the Asarco stacks.”
Ralph Richards, vice president and general counsel for Jobe in El Paso, said that as far as he knows Stanley Jobe is not a party to the lawsuit.
Richards said that a corporation associated with Jobe previously owned a limestone quarry at the West El Paso site next to the former Toro plant, and that as far as he knows, it did not contain contaminants.
As part of a record $1.79 billion bankruptcy environmental settlement in 2009, Asarco agreed to pay $19 million for the remediation of the IBWC area. That is separate from the $52 million it agreed to pay for the cleanup of the former smelter site in West El Paso, where the two landmark smokestacks were knocked down April 13.
“This settlement included costs to clean up and control contamination that cannot be associated with Asarco’s historic smelting activities, but can only have come from the defendants Cemex Inc. and Cemex Construction Materials South, LLC’s facilities,” the lawsuit claims.
The IBWC remediation area covers 5.8 acres that consist of land surrounding the American Dam and Canal and the IBWC American Dam Field Office property, in the 2600 block of West Paisano Drive, across from Cemex, 2900 block of West Paisano, and across from the Asarco smelter site, 3200 block of West Paisano.
The IBWC uses the 2-mile-long American Canal to remove its annual allotment of water from the Rio Grande. Water from the river is also allotted to the Mexican government for Juárez and to farmers in El Paso.
“During preparations by the IBWC to repair the canal in 2002, groundwater samples were taken that indicated concentrations of heavy metals above U.S. Environmental Protection Agency’s maximum contaminant levels,” the lawsuit alleges. “In addition, soils surrounding the canal have been shown to contain elevated levels of heavy metals. A 2001 study noted the presence of elevated metals in soils at the IBWC Field Office property.”
IBWC spokeswoman Sally Spener said the “USIBWC expects to put the remediation contract out to bid next month.”