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City sues Kimberly-Clark over state of mill site

The demolished former mill site, photographed above in May, is covered with concrete and dirt.

EVERETT — The city is suing Kimberly-Clark over the state of the soil at its long-gone pulp and paper mill site.
After rattling its saber on the issue the past two months, the city filed its lawsuit Aug. 25 in Snohomish County Superior Court.
Everett is asking for a judge to order Kimberly-Clark to lay down either a foot of grass or a foot of clean soil across the 55-acre former mill site, something the city asked Kimberly-Clark to do over a year ago.
Right now there is a crushed concrete spread over the site, a material that Kimberly-Clark upholds is superior to grass and makes it easier to sell the site to new buyers.
The concrete came from the leftover debris created after the mill was demolished. Kimberly-Clark maintains this is superior because the concrete is “stable, permeable and performing very well in controlling erosion,” company spokesman Bob Brand said in a statement.
Everett believes it has enough backing strength in the provisions of the mill’s demolition permits that Kimberly-Clark signed off on for the city to demand the company lay fresh material on the site. The company argues it complied with “all permit requirements,” Brand said.
The trouble with the concrete, in the city’s eyes, stems from its
In 2013, revelations that startled some city officials found the concrete debris contained higher levels of heavy metal contamination than anticipated. The contaminations levels effectively limit what can be built on the site.
Contamination levels are derived from how much exposure people might get from toxins such as heavy metals, and that determines what types of buildings can be built at the site, a state Department of Ecology official explained previously.
As it stands, much of the site is only suited for industrial uses.
Kimberly-Clark has long argued that another industrial use is what’s likely going to be built there anyway.
Everett, though, zoned the land for anything to be built at the site, a decision that came after a lengthy public process in 2012.
Jay Manning, a consulting attorney to Everett who filed the city’s Aug. 25 court filing, said last year that the mill site’s zoning
effectively gave the city teeth to enforce higher cleanup standards.
The linchpin to Everett’s argument in its court filing appears to be a few clauses the city says Kimberly-Clark agreed to to obtain a demolition permit.
In the city’s demolition permit checklists, Kimberly-Clark agreed to put at least a foot of clean soil over the concrete. Where there’s no concrete, the city asserts Kimberly-Clark agreed to put down grass to reduce the possibilities of soil erosion.
Kimberly-Clark said it’s ready to challenge Everett’s assertions.
“The company believes it has acted appropriately and complied with all permit requirements in its efforts to safely demolish and remediate the site so it can be redeveloped and bring jobs back to Everett,” Kimberly-Clark’s Brand said in the statement.
The statement closes with: “As the property owner we are prepared to defend ourselves.”
Early in the demolition process, Kimberly-Clark’s outside environmental consultants said crushed concrete is better, Brand said in a July company statement.
Favoring the concrete has been Kimberly-Clark’s long-standing position, although in August 2013 the company never said the concrete was permanent.
“The company never contemplated, or stated, that this would be a permanent solution,” Brand said.
At the time, the city had recently rejected the company’s request to waive the requirement to put down grass and topsoil.
The final decision on what would cover the site would be tied to what Ecology determined, Brand told the Tribune at the time.
Around the same time, Kimberly-Clark began its scheduled soil decontamination effort that is being supervised by the state Department of Ecology. The toxicity revelations that startled some council members came from testing work in preparation to the cleanup.
Fast-forward to July when the city was considering a lawsuit, Kimberly-Clark said: “Our position remains that the current crushed concrete covering is superior to placing top soil and grass seed on the site. The crushed concrete is more stable, offers better protection against soil erosion and would be a preferred surface for any new owner that would want to develop the site for industrial use.“
When Everett started rattling its sabers, Kimberly-Clark said it would do everything it could to “avoid a costly and protracted legal battle that, we believe, does not serve any public interest or benefit.”
After numerous meetings between city and company officials, it is possible the company offered options except to fully acquiesce to Everett. City officials would not discuss the negotiations before the lawsuit.
The city also argues in its filing that the company violated its demolition permit, and also accuses the company of violating international building code and city nuisance codes.
Everett is using the nuisance language to state this caused the city damages.
When the company laid down concrete chunks across the site, the chunks came within 200 feet of the shoreline. The city calls this act a failure to get a shoreline development permit, another violation of the city’s rulebook.

In other news:
The shipyard company tied to buying the former mill site is still interested.
A subsidiary of Saltchuk Resources called Foss Maritime wanted to use the site to expand its business.
Negotiations faltered and a purchase-and-sale agreement fell through in April. The deal killer appeared to be that Saltchuk and Kimberly-Clark couldn’t come to a decision on who would be responsible for paying for the site cleanup.
As of last week, Foss is still interested in the site, but there is no resurrected purchase-and-sale agreement, Foss’ media representative Megan Aukema said.
“Foss Maritime is continuing to look for a yard site on which it can expand its shipbuilding capabilities. Foss is carefully exploring all its options and is continuing discussions with Kimberly-Clark representatives to discuss options.” Foss’ president and CEO Paul Stevens said in a statement to the Tribune.


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