The Seattle Post-Intelligencer
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Fear of arsenic poisons lives of many residents

Monday, September 11, 2000

By Gordy Holt
SEATTLE POST-INTELLIGENCER REPORTER

EVERETT -- For 23 years, Ruben and Mona Gamon lived in a house built on soil so heavily laced with arsenic that one cleanup engineer called it "73 percent pure product."

"It was 8 feet deep in places, 4 feet in others," Ruben Gamon said. "It had just been dumped there, no mixing with dirt or anything, just solid white stuff about a foot down."

The Gamons' misfortune was to buy property once occupied by an arsenic "kitchen" in Everett that was shut down and moved to the Tacoma suburb of Ruston in 1912.

The smelter operation is part of a Pacific Northwest legacy that dates back to the turn of the century, when America's burgeoning industry demanded lead and copper -- and arsenic -- for manufacturing and pest control purposes. Arsenic, a commercially valuable byproduct of lead and copper smelting, continues to be used heavily in various manufacturing processes but is no longer manufactured in this country.

When the smelters began operations a century ago, nobody thought much about the environmental and health impacts of their byproducts -- the contaminated slag that was dumped, or the arsenic and lead-laced plume that went up the chimney. Today, however, arsenic is known as a carcinogen that can cause cancer of the skin, lungs, bladder and kidneys. Lead can cause cancer and is linked to brain damage.

The dangers are recognized, and so is the need to clean up the mess, stretching from the Gamon's home in Everett to Vashon Island to Tacoma and to the apple and soft-fruit orchards of Eastern Washington, where a pesticide containing arsenic and lead was used for a half-century prior to World War II.

But standards are not applied uniformly, and the agencies overseeing the cleanup operations are feuding about how much arsenic is too much. State law requires that arsenic at or above levels of 20 parts per million parts of soil be cleaned up. Federal regulations avoid specific levels in favor of a sliding scale based on risk assessment.

At Ruston, site of an Asarco smelter that operated for 74 years before being shut down in 1986, the federal Environmental Protection Agency negotiated a cleanup level of 230 parts per million. At the abandoned smelter site in Everett, Asarco officials balked when state officials demanded a cleanup to the state standard of 20 parts per million.

Both sides are fighting the issue in court.

Keep polluters in business

Chuck Clarke, former regional head of the EPA and now deputy mayor of Seattle, said bluntly that the federal government wants to keep polluters in business so they can help pay for the environmental damage they caused. Asarco alone is on the hook for hundreds of millions of dollars just in this state and Idaho.

"We adjust to the risk level you're willing to accept, based on cost," he said. "Usually, typically, what drives us to these lower levels (of protection) is politics, local conditions. There are some cost considerations, of course. You look at the volume of what has to be removed, and figure how much it'll be."

State Department of Ecology officials say they erred when they agreed to the Ruston cleanup levels.

Some homeowners, meanwhile, are scared, frustrated and angry.

"I still shudder to think of it," said David Taylor, a north Everett resident who, one day about nine years ago, woke up to a public notice that said he and his family were living on an old arsenic dump.

"After we found out, our children had to become accustomed to being shut-ins," he said. "We made them wear respirators when they went outside. Imagine! In your own yard!"

Some homeowners are asking judges to step in and sort out the mess. Given the amount of money at stake, lengthy appeals are likely. The only certainty is that the Northwest arsenic legacy will linger for years.

Where Asarco is involved, the federal EPA and the state both have their hands full. The 118-year-old New Jersey company, founded by the Guggenheim family and acquired recently by Mexico City-based Grupo Mexico, has been fingered by the EPA as a federal Superfund polluter at no fewer than 20 other locations around the country -- from a 20-acre landfill in Middlesex County, N.J., to the Clark Fork Basin mining area of Idaho and Montana.

In Everett, the company's decision to challenge state law angers state officials.

Laws obeyed until mill closed

Since the outset, Asarco has maintained that it should not be held responsible for cleaning up contamination that occurred nearly a century ago, when health and environmental laws were almost non-existent.

Company lawyers told Thurston County Superior Court Judge Gary Tabor last fall that Asarco had obeyed all the laws in force until the mill closed in 1912.

In March, Tabor ruled that the company could be held responsible only for the smelter's original 44-acre Everett site but not for the 600 neighboring acres where smelter contamination also has been found.

Both the company and the state have appealed to the state Supreme Court. A decision is not expected until later this year at the earliest.

The Everett case "is the first real test" of the state's Model Toxics Control Act, which became law following passage of Initiative 97 in 1988, said Mary Sue Wilson, an assistant state attorney general for the Department of Ecology. The act spells out precise cleanup levels and requires that polluters pay the cost.

"A few cases have been filed against (the law)," Wilson said, "but Asarco is the first to actually bring one to trial."

The company's decision to fight in court risks the health of all residents, state officials say.

"What's alarming and what has dismayed us is that the health of the citizens of Everett remains in jeopardy while all of this is wrangled out in court," Ecology Department spokesman Curt Hart said. "If Asarco really wanted to come in and clean up those properties -- to our standards, of course, not the EPA's -- we sure wouldn't stand in their way."

Tom Martin, Asarco's cleanup supervisor in the Puget Sound area, points out that Asarco is working "cooperatively" with the federal EPA in the Ruston cleanup, and says it tried to do the same in Everett.

Asarco 'felt it had no choice'

"Unfortunately, Asarco's efforts to work cooperatively with Ecology in Everett have been unsuccessful," he said. "Asarco felt it had no choice but to turn to the courts."

The cleanup level of 230 parts per million negotiated at Ruston "is fully protective of human health and the environment," he said.

"Biological testing has shown no elevated levels of arsenic in urine, or lead in blood, among residents of Ruston and north Tacoma who live in areas that have not been remediated or in areas where cleanup is complete," Martin said.

Thirty-seven homes were bought by Asarco before the company pulled out. Of those, 21, including the Gamons' home, have been demolished. A chain-link fence was raised around their foundations, and only concrete and weeds are visible today. The contaminated soil remains, however, with the worst of it located in a two-block triangle bounded by Butler Street, East Marine View Drive and Hawthorne Street.

As many as 595 homes in the 400-acre neighborhood could be contaminated. In addition, a 200-acre wetland along the nearby Snohomish River also is contaminated.

The going is slow. Ecology Department contractors were paid $500,000 to test and clean up the yards and gardens of just 10 homes in the summer of 1999.

The Legislature this year allocated only half of the $3 million sought by the Department of Ecology to finance work at 23 more homes, which began two weeks ago.

How many get done before the rainy season returns this fall remains to be seen, said Dan Cagill, DOE's cleanup manager for the Everett site.

"We'll be lucky to get to 10," he said. He attributed the lengthy process to soil tests being delayed until the Legislature allocated money to pay for them in late June.

If the state prevails in court, it will try to recover any costs from Asarco.

Environmentalists outraged

Environmentalists are outraged at the slow pace of the cleanup.

"So, basically, the company uses legislative and legal bullying to avoid cleaning up its mess," said Laurie Valeriano of the Seattle-based Washington Toxics Coalition. "Meanwhile, the people in these communities are living with the contamination, year after year."

At Ruston, where the smelter supplied most of the nation's arsenic for decades, the cleanup is farther along, but state officials now say they were wrong to allow the EPA to negotiate a deal that allows 230 parts per million of arsenic instead of the state standard of 20.

The agreement also allows 500 parts per million of lead to remain after the cleanup, double the state standard.

State officials accepted the EPA's argument that "institutional controls" would spell the difference. That is, Asarco and the EPA could get away with higher levels of contaminants if the residents would just take precautions.

The program included community meetings, mailings and pamphlets in which residents were told how to minimize their exposure to the hazardous metals: wipe your feet, regularly wash the dog and make sure the kids don't eat the dirt.

"Here's what happened as I understand it," said Tim Nord, who did not participate in the initial negotiations, but today is Ecology's No. 2 toxics cleanup official.

"In August 1991," he said, "no more than four to five months after our new regulations were out, EPA came to us saying, 'Hey, here's the number we're going with, 230, not your 20, and if you want to fight about it you're in big trouble because we have an agreement with Asarco and if that number isn't out there, they'll walk and we'll all end up in court.'"

Nord said state officials at the time didn't have a "good grasp" of their new regulations and bowed to the EPA's pressure.

"Since then, we've become very clear about our law and our needs," Nord said. "Everybody including Asarco can read what the law says and know what the standards are. We've been consistent."

EPA rebuts ultimatum claim

EPA officials disagree with Nord's view of the decision-making process, saying no ultimatum was issued.

"The EPA, not Asarco, selected 230," said Mary Kay Voytilla, who supervised the Ruston cleanup for Region 10 until this spring. "Asarco was not a player at the table."

When the Ruston site is cleaned up, and 230 parts per million of arsenic remain in the soil, the risk of cancer from the arsenic exposure will be one in 2,900, the state Department of Ecology says.

But Region 10 EPA attorney Tod Gold said a cleanup under Superfund law is not required to eliminate risk entirely. He cited the EPA's "generally acceptable" risk of getting cancer to be in a range between one chance in 10,000 and one in a million.

Why the inconsistency?

"I don't know why EPA is not more precise about its description of acceptable risk," said Gold, who accepts the state's risk number but is unable to reconcile the gap.

"What we're saying is that one in 10,000 is not minimum. The determination is also based on site-specific conditions (such as) the size of the area to be cleaned up as that relates to cost, and to disruption of the community."

"We're dealing in ballparks -- this is a gray area," Gold said. "When you're dealing with carcinogens, you can't come up with a precise risk number."

Since the cleanup began in 1994, 733 homes have been cleaned up and another 600 homes have been targeted for soil tests and possible remediation. Completion is expected in 2003.

Clarke, the former EPA regional director, said the agency tries to protect polluters such as Asarco from bankruptcy to keep cleanup costs from being passed to the public.

"Where Asarco is concerned, in Region 10 alone, they're also facing a quarter-billion-dollar cleanup in northern Idaho," Clarke said. "We want them to continue generating revenue so they will be able to help pay the cost of all these cleanups."

Many living within a few miles of the cleanup area but excluded from the agreement sued in federal court. Judge John Coughenour ruled that the company should pay for long-term medical monitoring and cash damages in a two-mile radius of the old smelter site. But only a fraction of his $60 million award has been paid out while Asarco pursues its insurance carriers for the money.

The bitter court battles and lengthy cleanup activities don't cheer residents of Vashon and Maury islands. A county soils study recently revealed levels of arsenic and lead well above state limits, and pointed the finger at the Ruston smelter as the source.

The fallout was heaviest on the rural southern ends of Vashon and Maury islands, which lie a half-dozen miles west of mainland King County but less than two miles north of Ruston across Dalco Passage.

Recent tests of undisturbed topsoil there found up to 23 times more arsenic (up to 460 parts per million) and more than five times more lead (up to 1,300 parts per million) than are allowed by state law, and more than 60 times arsenic's natural level for this region (about 7 parts per million).

Ecology will supervise cleanup

State Ecology officials will supervise the island cleanup, but have yet to decide just how to do it or how to pay for it. As a first step, Ecology official David South said, the soil of playgrounds and yards where children play will be sampled to determine if it contains unsafe levels of arsenic or lead.

Elevated levels of arsenic and lead in island soil were first noticed in the 1970s. Urine and hair samples were examined. Even pasture grass and cows' milk were monitored. But the studies went mostly for naught: Nobody seemed to be getting sick.

After the Ruston facility was closed in 1986, more urine and hair samples were taken, but again these samples were largely dismissed as "unremarkable."

A University of Washington study concluded that "concentrations (found in 435 subjects) were similar to those of populations in areas without arsenic-emitting sources."

In part as a result, the islands were excluded from the 1993 cleanup agreement struck between the EPA and Asarco. But now, a class-action lawsuit is aimed at changing that.

Last spring, Island residents Craig and Donna Gagner filed suit in U.S. District Court demanding that Asarco pay for property-value losses and long-term medical monitoring for themselves and their island neighbors. No trial date has been set.