EVERETT — Asarco has signed a court order that would force the company to finish cleaning up the most contaminated soil at its old north Everett smelter site by October 2004.
Lawyers for the state also signed the order, which would put an end to a lawsuit the Department of Ecology filed against Asarco in June that accused the company of dragging its feet on the clean-up.
The order now goes before Snohomish County Superior Court Judge Thomas Wynne, who must sign the document for it to be binding. Asarco and state officials said they see nothing in the agreement to which Wynne would object.
The deadline in the court order is not new. In 2002, the ecology department ordered Asarco to remove the most heavily arsenic-laced soil by next October. But putting a judge’s signature behind the order makes it more likely the company would abide by it, said Elliott Furst, the ecology department’s attorney.
"Having a court order is stronger than merely having an administrative enforcement order," Furst said. "Courts expect their orders to be followed."
Furst called the agreement a victory for the state.
"This is the same result we would have had had we gone to trial with Asarco and won," he said.
Asarco’s vice president for environmental affairs, Tom Aldrich, said, "We’re just trying to move forward on this, and we think this will help us move forward."
Aldrich, who signed the order on behalf of Asarco, declined further comment.
The 2002 state directive required Asarco to begin the cleanup of the most contaminated soil by April 30, 2003, and complete at least 20 percent of the soil removal by the end of this year. In June, with no sign that Asarco would obey the directive, the state asked Wynne to order it to do so.
In July, Wynne refused the state’s request that he force Asarco to either begin the cleanup immediately or face fines of up to $25,000 a day. Wynne said Asarco had a right to a full court hearing on its reasons for not beginning the cleanup in April and set Monday as a trial date. Monday’s hearing has been canceled.
The state had wanted Asarco to begin the cleanup this year in part because of concerns that the financially shaky company might not have enough money to do it all next year. But, with the rainy season starting, it’s too late to begin excavating the site, so the state didn’t insist on a clause in the new court order that Asarco begin cleanup immediately, said David South, Everett site manager for the ecology department.
Rain could wash contaminated material off the 4.7-acre fenced area that contains the most contaminated soil onto the adjoining residential neighborhood, he said.
"You’d get arsenic all over the place if something goes wrong," South said.
The proposed court order would make it easier for the ecology department to convince a court to fine Asarco if it again does not abide by the removal timetable, because the company would be defying a judge’s directive, Furst said.
But the state is not asking for fines against Asarco at this point.
"We don’t want to take money away from them that could otherwise go to the cleanup," Furst said. "Our priority is to get the work done."
Asarco, which is struggling financially because of low copper prices, has fallen years behind on some of the more than two dozen toxic-waste cleanups around the country that it has been ordered to undertake.
In January, Asarco reached an agreement with the U.S. Department of Justice to set up a $100 million environmental trust fund to be spent on the clean-ups over the next eight years. Asarco this year will spend $122,000 from the trust fund and $55,000 in other company money to prepare the Everett site for cleanup.
Aldrich previously has said that Asarco will ask the federal Environmental Protection Agency for permission to allocate enough money from the trust fund to finish the Everett cleanup next year and transfer the 5,000 truckloads of contaminated dirt to a toxic-waste container in Pierce County.
South said the court order makes it clear that Asarco must clean up the Everett site next year no matter what the EPA decides.
The ecology department has been in and out of court with Asarco since 1998 trying to get the company to clean up the Everett site.
In 1999, a Thurston County Superior Court judge ruled that Asarco is legally obligated to clean up 44 acres of land in and around the smelter site. The state appealed the ruling, arguing that Asarco should clean up nearly 700 acres of land that was contaminated by smelter operations, which ended in 1912.
Asarco filed its own appeal, claiming that it is responsible for less than 44 acres. Both sides agreed to put the case on hold while they focus on first removing the most heavily contaminated soil.
Reporter David Olson:
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