Asarco Inc. v. Department of Ecology

• Decision Date: 21 March 2002
• Docket Number: No. 69406-1.,69406-1.
• Citation: 43 P.3d 471,145 Wash. 2d 750
• Court: Washington Supreme Court
• Parties: ASARCO INCORPORATED, Respondent, v. DEPARTMENT OF ECOLOGY, and Thomas C. Fitzsimmons, Director of the Department of Ecology, Appellant.

43 P.3d 471

145 Wash.2d 750

ASARCO INCORPORATED, Respondent, v.DEPARTMENT OF ECOLOGY, and Thomas C. Fitzsimmons, Director of the Department of Ecology, Appellant.

No. 69406-1.

Supreme Court of Washington, En Banc.

Argued May 31, 2001.

Decided March 21, 2002.

Christine Gregoire, Attorney General, Mary Sue Wilson, Asst., Ronald L. Lavigne, Asst., Andrew A. Fitz, Asst., Olympia, for Appellant.

Heller, Ehrman, White & McAuliffe, Timothy H. Butler, Seattle, Covington & Burling, Peter J. Nickles, Washington, DC, for Respondent.

Michael James Zevenbergen, Seattle, Lois J. Schiffer, David C. Shilton, Karen M. Wardzinski, R. Justin Smith, Washington, DC, amicus curiae.

Mark Thormod Soine, Everett City Attorney, Everett, Rodney L. Brown, Kurt Bradley Peterson, Seattle, Marten, Brown, Jennifer Tanya Barnett, Olympia, Foreman & Arch, Dale Melvin Foreman, Wenatchee, Preston, Gates, Ellis, Fredric Tausend, Kenneth Stuart Weiner, John Craig Bjorkman, Seattle, Christine Gregoire, Attorney General, amicus curiae.

Eric Nelson, Asst., Olympia, Jonathan T. Stier, Charles Craig Caldart, Raymond Brent Walton, Mikkelborg, Broz, Wells & Fryer, amicus curiae.

John Earl Lenker, Newell David Smith, Seattle, Daniel J. Popeo, Paul D. Kamenar, Washington Legal Foundation, Washington, DC, amicus curiae.

Russell C. Brooks, amicus curiae.

CHAMBERS, J.

We must determine whether a preemptive challenge to a possible Washington State Department of Ecology enforcement action under the Model Toxics Control Act is justiciable.We conclude it is not.

FACTUAL BACKGROUND

In 1894, the Puget Sound Reduction Company of West Virginia began operating a smelter on a 44 acre site in Everett, Washington.Arsenic and lead were smelted there for sale.In 1903, a corporation that eventually became the modern day Asarco purchased the smelter and continued the business.By 1912, smelting and arsenic recovery was ended, and by 1937, all of the 44 acre smelter property was sold to different buyers, including private land owners, the City of Everett, the State Department of Transportation, Burlington Northern and the Weyerhaeuser Company.

Unheeded at the time was the lingering legacy of the smelter operation, arsenic and lead in the soil in amounts ranging up to 760,000 parts per million for arsenic alone.

In 1980, the United States enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675, which imposes strict, joint and several liability for environmental damage on past and present owners of contaminated property as well as the polluters and the transporters of pollution.CERCLA has been vigorously litigated in state and federal courts, and has been consistently upheld as constitutional.

In 1988, the voters in the state of Washington passed Initiative 97, the Model Toxics Control Act (MTCA)(chapter 70.105D RCW).MTCA was modeled on CERCLA, and we have found CERCLA case law persuasive in interpreting MTCA.SeeBird-Johnson Corp. v. Dana Corp.,119 Wash.2d 423, 427, 833 P.2d 375(1992).Like CERCLA, MTCA establishes a mechanism to clean up hazardous waste sites.MTCA is administered by the Washington State Department of Ecology, which was granted investigatory and enforcement powers.Limited state funds are raised for clean up projects through a tax on hazardous waste, but for the most part, clean up is paid for and performed by those public or private entities identified by Ecology as "potentially liable persons."Potentially liable persons include the current and former property owners, polluters, and transporters of waste.Potentially liable persons are jointly and severally liable, and liability is strict, though potentially liable persons have a statutory right to seek contribution from others potentially liable under the statute.RCW 70.105D.040(2),.080.

In 1990, Weyerhaeuser discovered evidence of elevated levels of arsenic, lead, and cadmium at the old smelter site, and informed Ecology.Ecology investigated and consequently identified the smelter site and 642 acres surrounding it as a hazardous waste site.In 1991, Ecology informed Asarco that it was proposing to find Asarco a potentially liable person for the clean up on a site that ultimately included the old 44 acre smelter site and 642 acres surrounding it, including lowlands to the east of the old smelter site and uplands to the west.(See following diagram.)At that time, Ecology also tentatively identified Weyerhaeuser, Burlington Northern, the Washington State Department of Transportation and the City of Everett as potentially liable persons.Ecology ultimately determined Asarco was a potentially liable person and decided not to make a final determination of the status of the other four entities, leaving Asarco free to bring a contribution action against them.

Initially, Asarco cooperated with Ecology.Between 1991 and June 1998 Asarco investigated the site; laid the groundwork for the eventual clean up; took some steps to protect the residents from exposure to toxic metals; and purchased 7-2 acres of heavily polluted residential properties on the former smelter site.¹As of June 1998, Asarco had spent about $11 million on these efforts, including testing of residents for elevated lead and arsenic levels.No evidence of elevated lead or arsenic levels in local residents was presented at trial.

Unfortunately, it became clear that Ecology and Asarco would not agree on the ultimate clean up standards.Asarco offered to clean up the site to a level of 230 parts per million (ppm) of arsenic and 500 ppm for lead, similar to that applied by the United States Environmental Protection Agency(EPA) to the Alcoa site in Ruston.According to Asarco, Ecology unreasonably adhered to the lower levels of 20 ppm for arsenic and 353 ppm for lead.²

On June 25, 1998, the United States Supreme Court published Eastern Enterprises v. Apfel,524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451(1998).Eastern Enterprises invalidated the application of a pension and health care funding system established by Congress against a specific company as unconstitutional.However, the Court could not agree on which provision of the United States Constitution was violated.The funding system's retroactivity offended five members of the Court: three on a takings theory, one on a takings and ex post facto theory, and one on a substantive due process theory.Only four justices signed on to the majority opinion, and four justices dissented.

Five days after the Supreme Court filed the Eastern Enterprises decision, Asarco brought a declaratory judgment action in Thurston County Superior Court asking the trial court to find MTCA unconstitutional as applied to them.³Asarco argued: (1)MTCA's joint and several strict liability for past pollution violated due process, (2) retroactive application of MTCA was a takings, (3) the liability schema violated equal protection, (4) Ecology's regulations were arbitrary and capricious, (5) the enforcement and penalty provisions of MTCA violated due process, and (6) the specific clean up standards Ecology was likely to order were arbitrary and capricious.

Ecology moved for summary judgment, arguing the issue was not ripe for review and the conditions for judicial review laid out in MTCA had not been met.Ecology asked the case be deferred until the final clean up order was entered.When the declaratory judgment action was filed, there was no final order for the uplands, and no draft plan for the lowlands.⁴The record does not reveal whether the old smelter site would be cleaned in a separate plan.Since there was no final order, there was no meaningful opportunity for court review of the burdens and benefits of clean up.

The trial judge dismissed claims (4) through (6), but allowed the "as applied" constitutional challenges to go forward.⁵Shortly before trial, Ecology issued a final clean up plan for a portion of the hazardous waste site, and indicated the clean up plan for the remainder would be issued in 2001.⁶The parties proceeded to trial, but did not litigate the specifics of the uplands plan.Instead, their arguments focused on whether the retroactivity of MTCA as applied to Asarco rendered it unconstitutional.

The trial judge found retroactive application of MTCA requiring Asarco to the actual smelter site did not offend the United States Constitution, because Asarco could have anticipated clean up liability for leaving soils highly contaminated on its property.However, he found requiring Asarco to clean the surrounding 642 acres did violate due process principles and was an unlawful takings of property based on the disproportionality of the damage caused by Asarco versus the liability imposed on Asarco.⁷

Both sides sought discretionary review in this Court.Asarco contends the trial court erred in holding it responsible for cleaning up the original smelter site; Ecology contends the trial court erred in concluding Asarco could not be held liable constitutionally for cleaning the surrounding polluted area.We granted review.

ANALYSIS

While this case presents significant constitutional questions, first we must determine whether review is appropriate given the procedural posture of the case.Ecology has argued from the beginning of this case that the trial court lacked jurisdiction over the constitutional questions before the entry of the final enforcement order.⁸

The ripeness doctrine exists "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties."Abbott Labs. v. Gardner,387 U.S. 136, 148-49, 87 S.Ct. 1507, 18 L.Ed.2d 681(1967).

Asarco presents us with a justiciability conundrum; while this is an "as applied" challenge, nothing...