ASARCO INCORPORATED, Respondent,
v.
DEPARTMENT OF ECOLOGY, and Thomas C. Fitzsimmons, Director of the Department of Ecology, Appellant.
Supreme Court of Washington, En Banc.https://leagle.com/images/logo.png
Argued May 31, 2001.
Decided March 21, 2002.
Attorney(s) appearing for the Case
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.
Supreme Court of Washington, En Banc.
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...
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