By Jennifer Langston

Herald Writer

A day after the state ordered Asarco Inc. to clean up arsenic-contaminated yards in northeast Everett, the company asked the state Supreme Court to send its lawsuit back to a judge who ruled favorably on its behalf almost three years ago.

The Supreme Court dismissed Asarco’s lawsuit challenging a state cleanup plan to remove pollution spewed by an ore smelter that it operated almost a century ago.

Asarco believes sending the case back to Thurston County Superior Court Judge Gary Tabor makes more sense than starting from scratch with a new lawsuit.

The state Department of Ecology, which wants the financially strapped company to clean up pollution from the smelter in about 600 residential yards, disagreed with Tabor’s earlier decision.

He ruled in 1999 that Asarco wasn’t responsible for cleaning up pollution outside a 44-acre site where the old smelter stood.

The state believed that let the company off the hook for another 650 acres of potential contamination in residential yards and industrial areas near the Snohomish River.

The Department of Ecology appealed Tabor’s decision to the Washington State Supreme Court, which dismissed the company’s lawsuit in a 7-2 decision last month on procedural grounds.

The state started removing arsenic-laden soil in the most polluted yards with public money while the lawsuit wound its way through the courts. It’s spent about $4 million so far, and cleaned up 38 properties.

The Department of Ecology issued a cleanup order to Asarco Monday, requiring it to take over the job of cleaning yards and dealing with contaminated material at the old smelter site.

Asarco, which believes the plan would cost it $78 million, has a week to tell the state whether it intends to comply. After that fines of up to $25,000 a day could start kicking in, state officials said.

The Supreme Court didn’t rule on the merits of Asarco’s arguments that it shouldn’t be held entirely responsible for the cleanup.

Asarco argued a modern environmental law shouldn’t be applied to pollution from a century-old industrial operation.

It also believes it should only be responsible for cleaning up 30 percent of the pollution, since other companies operated the smelter before Asarco took over in 1904.

The Department of Ecology said Tuesday that it would be premature to respond to Asarco’s motion before they’ve finished evaluating it.

Spokesman Larry Altose said the state would prepare a response if the Supreme Court decided to entertain the request and asked the department for its opinion.

Mike Thorp, a lawyer for Asarco, said the company didn’t believe it was necessary to start over with a new trial. Tabor had already heard evidence during a two-week trial in 1998.

The Supreme Court raised about 10 questions that weren’t fully explored in the first trial, such as how much it would cost, what cleanup level would be reasonable and whether there were other alternatives.

The two sides would likely present witnesses to address those issues, Thorp said.

"Our point simply was nobody challenged what the facts were, and we don’t see any reason to redo two weeks of trial," he said. "This seems like the most efficient way to build upon what’s already been done."

You can call Herald Writer Jennifer Langston at 425-339-3452 or send e-mail to langston@heraldnet.com.