By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
By New Times
Mary Corona and Nora Arbizo sit on the porch and play a morbid board game. With a cardboard box lid between them, they tally up the sick and the dead. Drawn on the lid is a crude map of their street in Hayden, Arizona, a tiny mining town 90 miles southeast of Phoenix. They carefully place colored pushpins in the lid, marking each death or illness they recall. Here, a few houses away, Mary pokes a red pin into the board to record a neighbor's heart attack. Yellow pins mean someone in the house has survived a bout with cancer. The women make careful dots with black marker for the ones who have died.
"Ralph Lopez, he died of cancer, remember?" Another black dot on the board.
A little black dog, stomach swollen with tumors, watches from the edge of the porch.
The map is soon covered with dots and pins. About three dozen markers indicate cancer cases. Another two dozen mark heart attacks, respiratory diseases and kidney failure.
These are only the people they've heard about, in their neighborhood, in the past 15 years or so.
The Corona family knows about sickness firsthand. On the map, their own homes are dotted with pins and black marks. So are their friends', their neighbors', other family members'.
No one knows what's causing this death toll, which includes a cancer rate 50 percent higher than that of Phoenix. But the Corona family and a large group of area residents suspect the killer is the decades-old industrial facility that squats like a beast at the center of Hayden, its machinery embracing the town like outstretched limbs: the ASARCO smelter.
Owned and operated by the billion-dollar New York mining corporation, the smelter is the town's lifeblood. ASARCO money pays for everything in Hayden, in one way or another.
ASARCO's Hayden smelter is one of the largest sources of toxic releases in Arizona and in the country, according to state and federal records. Every year it issues tons of lead, arsenic and copper compounds, among other chemicals, into the air, in vapor and airborne particles, and onto the land, in great heaps of slag that are gathered into tailings piles around the town.
More than 200 area residents have signed on to a planned multimillion-dollar lawsuit against ASARCO. They believe that the smelter's emissions over the years may have caused a catalogue of illness among their friends and neighbors.
Attorneys are now working the claims in Hayden the way miners once searched for veins of ore. The Phoenix law firm of Radocosky and Shanker, with the backing of attorneys from Texas, held a medical clinic in Hayden last week to test people for traces of toxins in their bodies. A notice of intent to sue for violations of the federal Clean Air Act has already been filed by Don't Waste Arizona on behalf of Betty Amparano, a longtime Hayden resident who's also a key plaintiff in the bigger case. Two other Texas law firms, working with the United Steel Workers union, sponsored a separate medical screening in Phoenix.
The residents and the environmental group also say the smelter is issuing thick clouds of smoke at night, when state emissions rules don't apply, and that the town is often in a fog from the facility.
Townspeople say the smelter has shrouded their town in a blanket of toxic grime for years. They say they went to school across the street from the smelter while it belched out thick smoke. They describe holes burned in laundry left out on the line overnight. They show receipts for new paint jobs on their cars, paid for by ASARCO, after releases from the smelter peeled paint away.
Now, the residents and their lawyers hope to prove that the emissions from ASARCO's smelter have caused their health problems. Government studies of the town done in the early '90s didn't find any link between the smelter and the cancer rate in the town. Arizona Department of Environmental Quality officials, who oversee the mining facility, say the company is not violating its permit to operate.
Jerry Cooper, a spokesman for ASARCO in New York, says the Hayden facility is not causing any health or environmental problems. He declines to answer detailed questions about the company's operation or address specific concerns raised by the residents, but says the plant is in compliance with the law.
But the looming threat of a lawsuit has already divided the small town, a place where there are few secrets, where everyone knows each other and where everyone depends on the mine. The people who have taken a stand against the company say they've been branded as troublemakers. Those who haven't signed on to the litigation are anxious; they fear Hayden could become a ghost town if ASARCO shuts down.
The lives of people here revolve around the smelter. Many fear a lawsuit could mean the end of their jobs. But a large group of their friends and neighbors are now asking if they can afford the cost of living in Hayden.
The stillness in Hayden, Arizona, population 910, goes beyond peace and quiet. Most of its main-street stores are boarded up; even the local Methodist church displays a "for rent" sign. Only the police station and the sole remaining diner have cars parked out front.
The town slopes downhill toward Highway 177. Most of the homes cling to the sides of the twisting streets. The houses that are battered and in disrepair stand in stark contrast to the brand-new town hall and senior center.
The quiet is shattered at regular intervals by the wailing of the siren announcing shift changes at the plant, the true heart of the town, rising above Hayden's playground and public pool. The streets of Hayden get as close as they ever do to busy as cars and trucks carry people back and forth from the facility.
The ASARCO smelter is part of the complex that extracts rock from the giant pit of the Ray mine and turns it into nearly pure copper. The rock is carried in boxcars along the Copper Basin Railway to the plant, where it is crushed and processed and melted into 750-pound copper anodes.
The plant releases tons of lead, arsenic and copper compounds every year, according to documents filed by ASARCO with the federal Environmental Protection Agency.
Most of the metals flow from the plant in the form of slag, a molten by-product of the smelting process. The facility also releases sulfur dioxide and arsenic into the air.
The health effects of these compounds, especially lead and arsenic, are well-documented. Information on the compounds can be found in public health reports and journals. Lead, which is listed as a carcinogen by the EPA, can cause damage to the brain and nervous system, and accumulates in the body, causing lead poisoning. In children, lead can hinder development. It can also cause birth defects, and kidney damage.
Arsenic is a known poison and cause of lung and skin cancer. It can cause a wide array of illness, including birth defects, heart dysfunction, skin rashes and nerve damage.
Sulfuric acid, also produced and released by the plant, can burn and irritate the skin and make it difficult to breathe.
The plant's releases have dropped in the past 10 years. But the amount of slag and other toxins put out by the plant is still high enough to place the smelter among the top 20 polluters nationwide.
It's dirty, demanding work, but work that pays well for small-town Arizona. Few other jobs offer $15 an hour or more with only a high school diploma. The people in Hayden, many of them Hispanic, are well-dressed, and new cars are parked next to old junkers.
The town, like others in the Gila Basin, started as a mining camp. It is named for Charles Hayden, the founder of the area's first mining company. Saying "mining is a way of life here" doesn't even begin to cover it. Hayden exists only because of the mine.
Not many people question the daily facts of life here, and, for a long time, the Corona family was no different. Betty Corona Amparano and Teresa Martinez Olmos are cousins, and now, two key figures in the legal drama being played out in Hayden. Both share the Corona family name through their grandparents, as do a wide circle of others in town who have joined them in challenging the company.
When asked why they started wondering about the relationship between their health and the smelter, there's a standard, half-joking reply from everyone in the Corona circle: "It's all Jill's fault."
Jill Corona, 19, is Betty Amparano's daughter, the oldest of nine children. In a town where nothing ever happens, she carries a notebook-size day planner and scribbles in it constantly. After a flood devastated the Hayden area in 1993, she wrote to Geraldo Rivera and tried to get him to do a show that would feature the town's struggle. At 16, she tried to start a youth center in Hayden. She recently posed for Japanese Lowrider, an international auto magazine. And at car shows, she signs autographs in a bikini as poster girl "Inca."
But it was a student filmmaker who got Jill and her family wondering about the illnesses they'd always assumed were just a part of life.
Corona met Ali Grossman, a University of Arizona student and Tucson native, while the two were working on a film that included a scene from Hayden. Ali was the script supervisor, and she overheard Jill talking about the town's problems and her own difficulties in getting a youth center started.
Grossman decided to do a short documentary about Hayden's young people, using Jill as her guide. But when she began filming interviews with Jill and her mother, Betty, the topic turned more and more to the family's health problems. Grossman filmed more stories about the town's history, and less about Jill's youth center.
During one interview, Betty said, almost offhandedly, "Yeah, a lot of people die of cancer here," Grossman recalls.
Sitting in the basement editing suite at UofA, Grossman played and replayed the film. "I just kept going back to that one shot of Betty and Jill sitting in the playground, and Betty casually mentioning, 'A lot of people die here,'" she says.
Grossman started asking her father, a physician, about cancer. She also took a sample of dirt from the Amparanos' yard, and sent it to a laboratory for testing.
The soil samples showed lead in the ground at a level nine times higher than considered safe under federal and state standards, Grossman says.
Grossman, now living in New York, finished her film early this year, focusing on the health problems and the mine. When it was done, she sent copies to investigative news shows like 20/20 and Dateline.
Nobody did a story, but Grossman felt she had to do something.
"Even when the camera was down, I wanted to help, I wanted to let people know what was going on in the community. I didn't expect this to be aired on NBC. . . . I didn't hold any grand illusions, because this was my first effort, but I still felt people should know about this," she says.
While Grossman worked on the film, Betty Amparano says she was being pressured to sign a lease on the house she was renting.
The lease required Betty and her husband, Ray, to pay the rent every other Thursday, pay for utilities and trash removal, and keep the house in good repair.
The lease also said: "Tenant is aware that the house sits in a mining town whereby, toxic and possibly cancer causing dust and fumes are scattered on the ground and in the air by the local mining corporations, but by signing this lease agrees not to hold landlord liable for any damage caused by said contaminates [sic] but to look only to the causer of said conditions, namely the mining corporations."
The Amparanos refused to sign, and were kicked out. They moved to a different rental in Hayden.
Grossman's test results and the unusual lease clause convinced the Amparano family to get tested for other toxic chemicals: lead and arsenic.
The blood tests, conducted in April of 1997, showed all had lead in their blood and most had arsenic in their bodies. All of the Amparano children had dangerous levels of lead--more than 10 micrograms per deciliter, the level at which damage begins. Children absorb the metal at a rate five times greater than adults.
The Amparanos began to wonder if the mine and smelter might have something to do with the high levels. They began to question the place they'd been living most of their lives.
As children, Betty Amparano says, she and her siblings used to play in the arroyo below the slag heaps, where the seasonal rains would deposit run-off.
A thick layer of purple dust is still as vibrant as ever in the arroyo behind the houses of Hayden.
"We used to call it the Purple Planet," Amparano remembers. They even used the purple dust as blush, Mary Corona, Betty's sister, says, putting it on their eyelids and cheeks while playing makeup.
Betty and her siblings would also run through the puddles that collected below the tailings piles, jumping in and splashing one another. One pool in particular they called the "Wishing Well."
"We'd throw coins in and, later, they'd change color," Mary Corona recalls.
There were no fences or warning signs to keep them out then, they say, and no signs or fences mark the arroyo today.
Their school was just across the street from the ASARCO plant, and they recall attending classes while the plant churned out smoke.
Tee shirts left out on the line overnight would sometimes come back in with holes burned in them, they say.
ASARCO used to reimburse people for damage to their cars, including paying for new paint jobs when holes would mysteriously appear, the residents say.
"If the air was doing that to our cars, just imagine what it must've been doing to our lungs," says Terry Martinez Olmos, Betty's cousin.
Olmos has also lived in the area her entire life, and used to work as a caterer at the plant. She and her husband, Gilbert Olmos, a town council member, have agreed to be plaintiffs in any lawsuit that's filed.
The Hayden residents recite a litany of illnesses, from shortness of breath to cancer. Betty Amparano says she has recurrent flulike symptoms, bouts of hyperactivity and depression, as well as cysts and blisters and rashes. Jill Corona reports frequent headaches, nausea and fatigue.
Jill's baby son, Trystan, has had respiratory problems and high fevers, Jill says. At one point, she says, he had to be placed on oxygen. "It was like asthma every single night," she says.
Jill's cousin Christopher Robago has been disabled almost since birth because of a "cerebral malformation," according to a letter from his doctor. At 28, he still depends on his mother and father for full-time care.
Gia Cervantes, 20, another cousin of Jill's, was recently diagnosed with cancerous cells in her uterus. She also says that she has had to call paramedics when her infant son William was unable to breathe at night.
Teresa Olmos had a hysterectomy after a series of tumors and cysts, she says, including one operation that found her pelvic girdle filled with a gel-like substance that the doctors could not identify. Her second child, Keith, was stillborn with spina bifida in 1990, even though a genetic search found no history of the disease in either her or her husband's families, she says. She says she has had as many as three surgeries in a single year, and she makes sure she is checked regularly for cancer.
Gilbert Olmos, Teresa's husband, reports getting kidney stones regularly, "the last one as big as a tooth." Jude Olmos, their son, has had lifelong motor coordination problems. Now a freshman at Arizona State University, he has also had a history of asthma, he says. Teresa's father, Ralph Martinez, took early retirement from ASARCO at age 48 because of medical problems. In 1990, the year the Olmoses' baby died, the family went through five funerals, Teresa says, all within roughly six weeks.
"You'd think that this was the Third World," Teresa says.
The reports of diseases extend beyond the Corona family. Dixie Munoz, 41, is also willing to sue. She says she has a heart murmur, diabetes and asthma. Last September, she says, she was hospitalized with chest pains, unable to breathe. Doctors found a tumor blocking her throat and a collapsed lung, filled with fluid, she says.
Hayden residents report other, less frightening ailments: skin rashes, blisters, and trouble sleeping at night.
Few people in town live past 60, residents say, succumbing to the variety of illnesses marked on the homemade map.
Last year, Betty Amparano, looking for answers about her family's test results, called a reporter. Not long after, an article appeared in Tucson's Arizona Daily Star about her family's health worries.
Shortly after, the Amparanos got a call from Steve Brittle of Don't Waste Arizona.
Betty's husband Ray answered the phone. "We always hoped that someone would help us," he told Brittle.
Steve Brittle pulls a thick stack of files from an overcrowded bookshelf in the small house in South Phoenix that serves as home and headquarters to Don't Waste Arizona, an aggressive, grassroots environmental group. Scott Meyer, who helped Brittle found DWA, cues up videotapes of the Hayden smelter while Brittle pulls out pages of reports from the Arizona Department of Environmental Quality.
"This is the war room," Meyer says as he steps over Brittle, who is sitting on the floor, reading documents. From here, Brittle and Meyer have taken on dozens of corporations in Arizona, using federal right-to-know laws to force them to pay thousands of dollars in fines. Brittle was at the forefront of the campaign against the Sumitomo Sitix semiconductor plant in north Phoenix, and carries on a fight with the chip maker today. He's suing Sitix for defamation, accusing the company of spreading false information about him.
Tilting at ASARCO's smelter is Don't Waste Arizona's latest crusade. Brittle and Meyer began investigating the ASARCO facility in January 1997. They were researching another mining company with operations in the state, and Brittle decided to use ASARCO as a point of comparison. While going through the ADEQ files, he noticed a reference to an Arizona Department of Health Services study that mentioned a high rate of lung cancer in six Arizona smelter towns.
"That set off the alarm bells," Meyer says. "We call [DHS] the executioners. They get paid very well not to find any problems."
"We thought, 'Uh-oh, they're doomed if somebody doesn't step in to help these people,'" Brittle says.
As Brittle looked through the ADEQ file, he found "pages and pages of excess emissions" at the Hayden plant from 1991 to the beginning of 1996--and no action from ADEQ.
Brittle soon found that the Hayden smelter is one of the top sources of toxic releases into the environment in the state and in the nation.
Brittle and Meyer thought about filing a Clean Air Act lawsuit against ASARCO, alleging violations of federal air standards. They went to Phoenix attorney Howard Shanker, who has represented Brittle and DWA before. Shanker told them they should file the suit on behalf of someone who actually lived in Hayden. The Daily Star article brought them to Betty Amparano.
Meeting the Amparanos and visiting Hayden turned the DWA effort from an exercise in numbers and limits into an inquiry into the lives of real people.
Brittle says it quickly became evident to him "there's a health catastrophe going on in this town," citing the litany of illnesses the Hayden residents have described.
In the fall of 1997, Brittle and Meyer began videotaping the plant's operations. They believe that the tapes prove the plant is violating its permit by belching out smoke that's too thick for state standards. ASARCO is supposed to meet a 20 percent opacity limit for its main stack, and 40 percent opacity for fugitive emissions, or the smoke that comes from the other parts of the plant's operations. Opacity is a measure of the thickness of smoke, determined by a certified inspector's ability to see through the smoke.
On September 15, 1997, DWA's films show, a thick gray plume rises from the smelter.
"Look at that," Meyer says. "Looks like a damn fire in there."
Brittle and Meyer say they've since seen the thick, nighttime smoke several times themselves. "The whole town was under this thick fog, like in San Francisco or something," Meyer says.
Brittle also has a report, done by a California emissions inspector who is night-certified, that shows excessive emissions at the smelter. According to the report, done over three nights last November, emissions from the smelter stack were as high as 50 percent opacity at night.
Brittle and Meyer suspect the plant slows down production during the day, when the smoke is more visible, and then cranks up again at night.
"It's become very evident that the mine is acting intentionally to violate the law," Brittle says.
State regulators say ASARCO is operating within legal limits and hasn't violated its permit. Officials from the Arizona Department of Environmental Quality and the state Department of Health Services say they don't see any problems with the smelter.
But that's about all they can say. In this era of limited government and limited regulations, state officials can offer only a limited response to the questions posed by the people of Hayden.
Mike Traubert, ADEQ's Air Quality Compliance director, says he's seen a dramatic improvement in the smelter's operations since 1990, when concerns were first raised about the smelter's emissions.
"There are times when you can go by there [the smelter], and you wouldn't even know it's operating by looking at the stack," he says.
Traubert chalks up this progress to steps the company has taken voluntarily, like installing a pollution control device called a baghouse in its smelter in 1996.
"It's in their best interest to identify these problems ahead of time and correct them," Traubert says. "By the time we get involved, it generally means [a problem's] been occurring way too long."
But ADEQ's files also contain page after page of excessive emission reports from ASARCO's Hayden smelter. The emissions are usually brief, but opacity sometimes runs as high as 75 percent, according to the plant's own quarterly reports.
Still, none of those readings can be used for action against the company--because the company turned them over voluntarily. By administrative code, Traubert says, routine readings are advisory only.
Of course, ADEQ could use those readings to do its own investigation. It just hasn't, Traubert says.
Since 1996, ADEQ has "caught" the plant exceeding its permit three times. One of those was a release of sulfur dioxide in early 1998.
But no penalties were levied against ASARCO for those three violations.
That's because ADEQ allows some excessive emissions. If the release is the first excess of the year, as it was early in 1998, then the excessive release is not considered a violation.
The same is true if the release was within 15 percent of the acceptable standard. Or if the release was because of an "unforeseen equipment failure," Traubert says.
Even if ADEQ did issue a notice of violation for each of these incidents, it wouldn't mean much. ASARCO has not been fined by ADEQ for a notice of violation once this decade.
(ADEQ did sue ASARCO over allegations of improper handling of asbestos at the Hayden plant in 1993; the case was settled, with ASARCO paying the state $125,000, but admitting no liability, according to court and ADEQ records. ASARCO also recently reached a $55 million agreement with EPA and ADEQ to improve disposal of wastewater at the Ray mine, just down the road from the smelter. As part of the deal, ASARCO also agreed to pay $3 million in fines.)
And even though Hayden residents think the plant is cranking up its output at night, when it's harder to see the smoke, Traubert doesn't think that's true.
"We review [ASARCO's] reports, and by reviewing their reports, we can see if they're changing their practices at night. That information would show up," he says. "The whole purpose of a copper smelter is to run at a constant rate . . . to run as hard as they can in compliance with the rules. If they were going to alter their operations at night, they'd have to implement a whole separate protocol. And I just can't see them doing that."
Traubert dismisses Brittle's report by the California expert who found excessive emissions because it was done at night. The method ADEQ uses to gauge the thickness of the smoke being emitted by the smelter uses daylight as its standard. And Traubert doesn't believe testing can be done any other way. Even if it could, "that is not allowed by our rule," Traubert says. "We would have to change ADEQ policy to do that."
Traubert has heard the complaints of paint peeling off cars. He even sent an investigator to check it out in 1993. Nothing came of the investigation.
ADEQ doesn't notify the people of Hayden when the ASARCO smelter doesn't meet standards. ADEQ never notified anyone about the 12 violations the plant has had since 1991, including town officials or the press.
"This is our belief and by practice and policy, we don't issue press releases on NOVs. We issue a great many NOVs, and many can be easily correctable in just a few days," Traubert says.
Traubert sees no problems with arsenic emitted by the plant, either.
In fact, a federal limit on arsenic is high enough that the plant can put out more than 100 times the amount of arsenic that state health guidelines consider safe and still not be in violation of any law.
Jim Guyton, who works in ADEQ's air monitoring division, says the levels of arsenic in the air at Hayden are the highest in the state. On average, arsenic levels were nearly 250 times state health guidelines in 1997, and were at 129 times state guidelines for the first half of 1998.
Guyton says every place ADEQ monitors is above the guidelines. The real test, he says, is to compare Hayden with another comparable site, like Ajo, a former mining town near the Arizona-Mexico border.
Even then, Hayden doesn't fare well. Its arsenic levels range from 95 times as much as Ajo's down to five times as much.
What does that mean for fines and penalties? Well, nothing, ADEQ says. Like the smelter's quarterly reports, the arsenic monitoring is purely advisory in nature. The health guidelines, designed to warn people that health problems could occur if chemicals exceed certain levels, are not binding by law. Guyton says ADEQ uses the guidelines when considering new permits.
What the plant's emissions mean for the health of the people living in the area is uncertain. The state knows that the smelter routinely exceeds safe arsenic levels. The state knows the facility sometimes exceeds limits on other compounds. And the state is aware of residents' blood tests showing high lead levels.
But state officials have studied Hayden and other smelter towns, and they say they have found no link between living near a smelter and getting cancer.
In the early 1990s, a series of studies done by the state Department of Health Services found that people in smelter towns--including Hayden--died of lung cancer at a rate 50 percent greater than the cancer rate for people in Phoenix and Tucson. The elevation in the cancer rate couldn't be pinned on smoking, since people in the towns didn't smoke any more than people in the cities. But another DHS study, partially funded by ASARCO, found "no significant link" between living in the smelter towns and dying of cancer.
In other words, people were getting lung cancer in the towns, but that wasn't necessarily because of the smelters, the study said.
This left the officials "scratching our heads" as to the cause of the high cancer rate, according to Dr. Tim Flood, chief of DHS' Office of Chronic Disease Epidemiology. Flood, a soft-spoken man with gray hair and a Mr. Rogers-style cardigan, conducted the study for DHS.
But DHS did nothing beyond that study. No more tests were done to determine why people in the smelter towns were suffering from cancer to a greater degree.
Flood says there was nothing else DHS could do. Once the studies were done, he says, "as a public health official, that doesn't leave me many places to go."
No investigation was ever done to determine the effect of arsenic levels on the populations of those towns, either, even though, at the time, ASARCO was pumping out arsenic at a rate 165 times higher than DHS guidelines.
Flood doesn't think a study of arsenic levels in smelter towns would help. "Arsenic is already a known carcinogen," he says. "I don't see what the point would be."
But Flood and others from DHS did ask Pinal County health officials to conduct an antismoking campaign.
In fact, when asked whether toxins from the smelters might have something to do with the cancer rate, Flood talks about smoking--even though his own work found that smoking wasn't the cause of the elevated cancer rate.
"I can see how that would ring a little hollow to the townspeople [of smelter towns]," Flood concedes. "They'd probably say, 'Well, we like to smoke, and you found that smoking wasn't the cause.' . . . But even if we don't know what's going on, we do know that smoking increases the risk of lung cancer, and quitting smoking is something people can do to improve their health."
Flood likewise doesn't have any answers when told about the arsenic and lead found in the Amparano family's blood.
"Well, arsenic is found very often in seafood," he says. "I hope whoever did the tests told those people to abstain from eating shellfish before he took them."
Flood appears to be content to leave it at that. But he does take exception to Steve Brittle's criticism of DHS as a do-nothing agency.
"I bristle at that," Flood says. "Because that is spoken by someone who has never done one of these studies and has no idea of the difficulties."
At the federal level, the EPA is waiting to see if a lawsuit will be filed before it takes any action, according to spokesman David Schmidt.
Brittle scoffs at the government's lack of action on the smelter.
"Environmental protection is basically a myth," Brittle says. "There are people out there who think the government is supposed to keep the air and water clean. It doesn't happen. If it doesn't fit the industry agenda, they're not going to do it."
If the people of Hayden want some action, Brittle says, they're on their own.
"The only way the people in Hayden are ever going to get redress of their grievances is if they sue the hell out of them," Brittle says.
Betty Amparano and Jill Corona are leading a small parade of suits and ties down the streets of Hayden when Texas attorney Robert Binstock stops and laughs out loud. He points to a street sign. It reads "SMELTER ROAD."
"Get a photo of that," he says to a photographer. "I have got to have a photo of that."
Binstock is in Hayden with Phoenix attorney Howard Shanker, another lawyer, a toxicologist and paralegal. Shanker won't say much about the lawsuit he might file, but says he has signed up more than 200 residents as potential plaintiffs; he expects more to join the case.
"These people have been abused by ASARCO and ignored by the rest of society for too long," Shanker says. "We're hopeful that ASARCO will step up and do the right thing. If not, we're prepared to see this through to the end."
Shanker and his partner, Dan Radocosky, have teamed up with Binstock's Texas firm and another Texas attorney, Newton Schwartz, to take on the massive case. In Texas, Binstock represented San Antonio residents who claimed they were exposed to lead-contaminated soil during the building of the Alamodome sports arena. The case was settled for $2.6 million. In Houston, Schwartz brought a class-action suit against the city for selling lead-contaminated housing to low-income buyers.
Last week, at a medical screening sponsored by the Phoenix attorneys, Hayden residents gave blood and urine samples, and had their lungs x-rayed at St. Joseph's Catholic Church. Fliers advertising the screening were distributed throughout the area. According to Teresa Olmos, about 200 people showed up, including "some people I never would've expected to see." Not all of the people who attended the screening also signed on as clients, but some did, Olmos says.
The Phoenix attorneys and their Texas partners aren't the only lawyers who have targeted Hayden as a potential source of clients.
Jonathon David and Joseph Bruegger, two other Texas attorneys, sponsored a separate medical screening for Hayden union members last week in Phoenix. Bruegger represented about 2,500 Australian women in a breast implant lawsuit against Dow Corning. David worked with the Texas law firm Baron & Budd when it sued Hughes Aircraft and the City of Tucson for millions of dollars because of groundwater contamination.
David declined to comment in detail on the medical tests, saying it's too soon to know anything yet.
"The steelworkers have been concerned about health problems related to facilities all over the country for a number of years," he says. "We don't know if anything will even be found."
This isn't the first time ASARCO has faced batteries of attorneys arguing over polluted neighborhoods. A century of mining throughout the country has left the company with some expensive messes.
In Tacoma, Washington, ASARCO settled a lawsuit in 1995 over its long-closed smelter. The company agreed to pay as much as $67.5 million to residents and to haul contaminated soil to a special dump site. In that case, company officials knew as far back as 1972 that homeowners' yards near the smelter had high levels of toxic metals, but chose to "let sleeping dogs lie," according to court records. During the suit, which lasted for four years, the company spent $200,000 a year on a publicity campaign to convince residents that cleanup wasn't necessary.
Bitter legal maneuvering over ASARCO's smelter in Globeville, Colorado, ended in a settlement in 1993 that included $38 million to clean up the soil. Yards in Globeville have been dug up and hauled away, then replaced with new topsoil. Residents get regular blood and health screenings.
In 1996, the mining company was ordered to pay a $3.25 million fine, plus an additional $1 million in cleanup costs for lead releases from a refinery in Omaha.
Supervisors at the Hayden plant did not return calls for comment for this article.
Jerry Cooper, director of corporate communications for ASARCO in New York, won't respond to the specific allegations being raised by Hayden residents or Don't Waste Arizona.
"You're asking me for comment on hearsay, and frankly, it's just stupid to get into that," Cooper says.
But Cooper denies the Hayden smelter has violated any laws or that it has caused any health problems.
"I do not believe that there is any basis to concerns about health claims in the Hayden area," he says.
Cooper downplays the possibility of litigation against the smelter.
"If there's people who believe that they've been injured, I'm sure they will act on that," Cooper says. "Likewise, if there are people who've been talking to lawyers who think that they can make some money off of a lawsuit, I'm sure they will act on that as well."
The prospect of a lawsuit against the smelter has many people in Hayden on edge. Without ASARCO, nobody gets a paycheck.
Everyone in the area depends on the Company, which is spelled with a capital "C" as in Christ in the local paper. Either you work for ASARCO, or you work for the local government, which receives 90 percent of its taxes from ASARCO.
ASARCO sponsors the Little League, contributes to the high school's fund raisers, gives money and food to the local senior center, and even helped pave the area around the local Catholic church.
"It's a one-industry town, and everyone lives off that one moneymaker, essentially," says Father Kevin Clinch, the priest of St. Joseph's parish.
Clinch, a balding man in his 30s, is decked out in a Diamondbacks jersey, picking up broken bottles and litter from the side of the highway. Clinch has been assigned to St. Joe's for 10 years and ministers to roughly 400 families in the area. About half the area's population is Catholic.
"There are a lot of wonderful attributes" to Hayden, Clinch says. "It's like taking a trip in a time machine, to a life several generations away. Kids still play in the streets and parents don't worry about them not coming home."
What does worry people around Hayden is the threat of unemployment, Clinch says.
"In the memories of any working adult here, there are memories of layoffs," he says. "It weighs on them. You only need one of those every 15 or 20 years to remind people that, stable as life may seem, a lot depends on the whims of the corporation and the global economy."
Carlos Galindo-Elvira's job as the town's economic development coordinator is to make Hayden a little less dependent on the whims of a single corporation. Galindo-Elvira was elected to Hayden's town council when he was 20, then worked in the Phoenix office of former U.S. senator Dennis DeConcini before returning to his hometown. Galindo-Elvira chats happily about the new projects the town government is paying for, including a batting cage next to the abandoned school.
The only time a cloud passes over his relentlessly cheerful features is when he talks about the chance of litigation against the company. A batting cage can't take ASARCO's place on the tax rolls.
"It comes down to a lot of people's bread and butter," Galindo-Elvira says. "Most people here think there's a direct link between the lawsuit and their jobs." A lawsuit against ASARCO could be "a wet towel" on the town's economy, he fears, driving away jobs and families.
Mayor Jose "Joe" Aranda is also worried.
"That's a lot of people's livelihood there," Aranda says. "To some of these guys, it [the lawsuit] is a threat."
Neither the mayor nor Galindo-Elvira sees the same problems other Hayden residents do. Aranda says that the smoke from the smelter gets really bad "maybe once a year," with very rare problems with dust from the tailings piles.
Galindo-Elvira can't remember ever seeing the smoke from the smelter get that bad. He has no memory of dust blowing onto cars or buildings. He has a dog, he says, and the dog kicks up a lot of dust in his yard.
Aranda says the town depends on the federal and state authorities to safeguard its health and environment; if there's a problem, he expects they'll let him know.
But you're not going to hear a lot of complaints from the townspeople themselves, says a retiree who still lives in the area. He is signed up for the lawsuit, but he asked that his name not be used because he has family members working for ASARCO.
"These people are scared," he says. "They're never going to speak up around here. They're not going to talk about nothing. They've got their lives here."
The Olmos and Amparano families say they've seen a different side of that fear--harassment from other people in town.
Teresa Olmos says she's received crank calls, including one from a person who told her, "I bet I can help you spend all that money you're going to get." She's had to call the police and change her number.
Olmos also says Galindo-Elvira confronted her angrily last fall when he saw her and Betty with a cameraman from Don't Waste Arizona. She says Galindo-Elvira yelled at her, "Who's done more for you? Jill or me?" Betty Amparano and another witness confirm the incident. Galindo-Elvira denies it ever happened.
The residents' work with Don't Waste Arizona has also attracted attention. Last fall, Brittle and Meyer were videotaping, hoping to catch some of the nighttime smoke. Jill Corona, Betty Amparano and Teresa Olmos were with them. Then they saw what they call "the emergency town council meeting"--a group of townspeople drove by, one after the other, checking out what they were doing.
"Everybody's scared," Olmos says. "With copper at 79 cents a pound, everyone's scared that the plant's going to close down and they're going to starve."
Amparano also says she's been harassed by the police. She claims Hayden Chief Eric Duthie came by her house last year and told her to "keep her mouth shut," and since then, police cars have frequently driven by her home.
"They would go around my house five or six times a day," Amparano says. "They would park right across the street."
Duthie denies this, saying he hasn't spoken to Amparano in almost two years, and that time about a law enforcement matter. As for the drive-bys, Duthie says, "Have you driven around here much? We have two streets. I don't see how we can avoid driving by her house."
Duthie says he can understand why Amparano might feel threatened, however. "This is a company town," he says. But, he emphasizes, his police department "doesn't answer to the company."
The people who have complaints about the smelter are entitled to their day in court, Galindo-Elvira says. Until then, a lot of other people in town are just waiting to see what will happen.
"But I will tell you this," he says. "There are citizens out there bracing for impact."
One of those people watching from the sidelines is Annie Hinojos. She is 47 and the mayor of Winkelman, another little town just a mile down the road from Hayden. She's also the director of the Hayden Senior Center. She's a cousin of Betty Amparano, and one of the few members of the family who is not signed up for the litigation against ASARCO.
She agrees that there seems to be more illness in Hayden than seems normal. "Every time you turn around and someone has some form of cancer," she says, "it's a worry in everyone's mind." Both Hinojos' mother and her aunt died of the disease.
She also says there are nights when the air is thick with smog from the plant and you can taste something like chemicals in the back of your throat. "It's not often, but it does happen," she says.
Despite that, she's not planning on suing.
Hinojos was forced to move away from Winkelman after the flood in 1993. She lived in relocation housing in San Manuel. "I hated it," she says. "I chose to come back."
Hinojos says this is her home, and she's going to live with whatever comes of her choice. "I think we all live in a place where there's some kind of contamination. We all chose to live here. The company is here. We made that decision. They chose to take a stand and file a lawsuit. I choose to live here. It's my home. Whatever comes, comes."
There is one rebuttal the people of Hayden have to any arguments about their fight against the company: the town's cemetery, six acres and 1,500 plots large.
This is where they have buried their relatives and friends, their parents and children. Teresa Olmos buried her stillborn son here. Betty Amparano buried her mother and father, the grandparents of Jill.
They say the cemetery is just too big for a town as small as Hayden, and too many people end up there too soon.
"I see people just waste away," Olmos says. "They never get away from it. They live here and work here and die here. . . . What good does it do to have economic development when people end up leaving in caskets?"
There have been other rumblings about lawsuits in the past, but people around here seem to know a different kind of storm is brewing.
"If they win, I'll be happy for them," Annie Hinojos says. "But it's going to be a long road. ASARCO is a big company. . . . I think it [the lawsuit] is going to divide the family and be around for a long time."
Contact Chris Farnsworth at 229-8430 or his online address: firstname.lastname@example.org