In 1992, RW attorneys were contacted by concerned homeowners in Tacoma, Washington. The homeowners were worried about a planned cleanup of contaminated soils in their residential yards. Arsenic, lead, and cadmium in hazardous levels threatened their health and the health of their children.
The ASARCO Tacoma smelter was a copper smelter. It also handled other specialty metals, including arsenic, lead, and cadmium. Located in a populous residential neighborhood of Tacoma, the smelter operated around the clock from the 1880s until 1984. Its 560 foot smoke stack was, in the earliest part of the 20th century, the tallest in the world.
But, by the early 1980s, EPA had identified the smelter as one of the greatest human health risks from airborne exposures in the entire country. EPA, ASARCO, and the Tacoma community engaged in a 10-year debate over how to control the emissions and how to reduce human health impacts. ASARCO permanently shut down the smelter in 1986.
Our clients’ problems, however, resulted from lingering fallout from those air quality issues. Airborne metals contamination, deposited in residential soils, doesn’t go away with time. Our clients asked RW to help fix the situation.
And so we brought one of the earliest successful environmental class action cases against ASARCO. The case, Wing, et.al. v. ASARCO, was filed in 1983 in federal district court. The proposed class was made up of approximately 4,000 residential properties and nearly 20,000 residents. The plaintiffs asked for recovery of the costs for cleaning up their properties, repayment for lost property value, and the establishment of a medical monitoring program to help neighborhood residents detect elevated blood levels of toxic metals
ASARCO was a well-known and respected foe, and, with capable representation, pursued a vigorous litigation strategy. It had previously defeated a single plaintiff’s claim for property damage in the path-breaking Bradley v. Asarco case. That case has provided, for years, the starting point for an introductory course at the University of Washington law school that covers the ASARCO situation.
Despite the challenging precedent, RW agreed to move ahead. We were successful in securing class certification, and proceeded to litigate to the point of trial. The case required nearly 100 depositions, 15 expert witnesses, 40 motions, and many, many hours of work over a 3-year period. The case represented a critical threat to ASARCO, not only due to the size of the claims, but also because a precedential loss could endanger the company’s ongoing operations at other locations in the United States.
Ultimately, we were able to reach a settlement on behalf of the class. The resulting deal provided for compensation for the residents, the establishment of a medical monitoring program, and a property value maintenance and compensation system, as well as payment of attorneys’ fees. Parts of the settlement were challenged in the 9th Circuit Court of Appeals. In that appeal, RW’s performance was described as follows:
This is clearly one of those exceptional cases. [Judge Dwyer], no stranger to complex litigation, spoke in awe of class counsel’s performance, stressing the first-rate job the lawyers did, their sheer endurance, and the exceptional results obtained, which the court viewed as especially remarkable in light of the quality of opposition counsel and Asarco’s record of success in this type of litigation.
Wing v. Asarco Inc., 114 F.3d 986, 989 (1997).