Asarco v Ecology :: 145 Wn2d 750
Category: Environmental Regulation
In 1903 Asarco Inc. (Asarco) purchased an arsenic and lead smelting facility in Everett, WA from the Puget Sound Reduction Company of West Virginia. Puget Sound Reduction had operated the 44 acre site since 1894 and Asarco ran it from 1903 to 1912. After spending $11,000,000 on cleanup at an old Everett, WA site, Asarco was found liable by the Department of Ecology's (DOE) Model Toxic Control Act (MTCA); which was modeled upon Federal CERCLA, for a further $78,000,000 of estimated cleanup in the surrounding area. There was no indication of higher toxic metal blood levels to be found in local residents, and DOE standards were geared to approach naturally occurring heavy metal levels typical to the local soil.
Asarco brought a declaratory judgment in Thurston County Superior Court. Asarco claimed that liability for cleanup violated due process, and that retroactive application of MTCA was a taking violating equal protection, and that the regulations were arbitrary and capricious. DOE asked for summary judgment arguing the issue was unripe for review.
The trial judge did find Asarco liable for cleanup at the original 44 acre site but that cleanup of the surrounding 642 acres did violate due process and was an unlawful taking. Both sides sought review by the Supreme Court; Asarco contending the trial court erred in finding it responsible for total cleanup of the original site and DOE contending the trial court erred in not finding Asarco responsible for cleanup of the surrounding area.
The Supreme Court dismissed the case as not justiciable due to meeting the “ripeness doctrine” and did not yet meet the criteria for a taking, since total cleanup cost was speculative, nor did it violate due process since the unknown cost could not be yet determined to be unduly oppressive.
The recent over-regulation of the mining/smelting industry has largely caused it to flee overseas to friendlier business climates—at a time when our nation is starved for real jobs. Under Federal CERCLA regulations any party, including transportation companies and financiers, who had past dealings with a factory that left discernible residues, could be liable for a multi-million dollar cleanup.
This case was ripe for review and justiciable. The action by DOE was arbitrary and violated due process. A judgment was made on a process that was in operation nearly a century ago, and the dubious MTCA standards could not have been anticipated. Even though the $78,000,000 cost was still speculative, the order for retroactive liability by DOE was actionable and ripe for review as soon as it was brought. The cost of the cleanup by MTCA standards should be born by the public who supported the impossibly strict standards and who had benefited from the use of related Asarco products.
Rating the Usual Suspects:
| pass | Bridge, Bobbe | |
| pass | Brooks, Russell C | |
| pass | Butler, Timothy H | |
| pass | Nickels, Peter J | |
| pass | Sanders, Richard | |
| fail | Alexander, Gerry | |
| fail | Bjorkman, John C | |
| fail | Caldart, Charles | |
| fail | Chambers, Tom | |
| fail | Fitz, Andrew A | |
| fail | Gregoire, Christine | |
| fail | Ireland, Faith | |
| fail | Johnson, Charles | |
| fail | Lavigne, Ronald L | |
| fail | Lenker, John E | |
| fail | Madsen, Barbara | |
| fail | Nelson, Eric | |
| fail | Owens, Susan | |
| fail | Schiffer, Lois J | |
| fail | Shilton, David C | |
| fail | Smith, Charles | |
| fail | Smith, R J | |
| fail | Soine, Mark T | |
| fail | Stier, Jonathan | |
| fail | Tabor, Gary | |
| fail | Tausend, Fredric | |
| fail | Walton, Raymond B | |
| fail | Wardzinski, Karen M | |
| fail | Weiner, Kenneth | |
| fail | Wilson, Mary S | |
| fail | Zevenbergen, Michael |