The parties to Anaconda's Superfund cleanup have reached an agreement in principle, the Environmental Protection Agency announced Sunday.
The agreement is the first step toward getting a signed consent decree, the legal document that will carve into stone the final steps of the Smelter City's cleanup. Doug Benevento, EPA Region 8 administrator, had said previously that he intends for Anaconda to have a consent decree with the ink dry by the end of the year.
The EPA, the Atlantic Richfield Company, the state of Montana, and Anaconda-Deer Lodge County were locked in closed-door negotiations last week. The EPA had given Anaconda until Tuesday to reach an agreement in principle over the Smelter City’s Superfund cleanup — threatening to impose a unilateral cleanup order if the negotiations were unsuccessful. The Anaconda cleanup, like Butte's, has been ongoing for 35 years. The agreement was reached Saturday.
Anaconda’s environmental damage was caused by approximately 100 years of copper smelting. The 585-foot Washoe smoke stack sent arsenic, lead, cadmium, copper, and zinc into the air until 1980. More than 300 square miles were damaged.
The EPA will hold a public meeting at 6:30 p.m. Tuesday in Anaconda High School's Little Theater to present the next steps.
One of those next steps will be another visit to U.S. District Judge Sam Haddon. Again like the Butte situation, the Anaconda negotiations are under a confidentiality order imposed by Haddon at the parties' request. The EPA, the state, and Atlantic Richfield will have to go back to Haddon's court to request that the confidentiality order be lifted around the Anaconda negotiations.
How fast that will happen is unclear. It took the EPA about three months to get Haddon's order partially lifted on the Butte Hill earlier this year. If it takes the EPA as long to do the same thing for Anaconda, that could put the EPA into a serious time crunch to get the consent decree signed by the end of the year.
But Joe Vranka, Montana Superfund chief, said Thursday that Anaconda is in a different place than Butte and that documents are already prepared. He said the process of getting from an agreement in principle for Anaconda at the end of July to a signed legal document by the end of December would not require as much work as is necessary in Butte.
Because of the gag order, it is too soon to expect the EPA to reveal what the federal agency, the county, and the state agreed to with the former oil giant. All that the agency announced Sunday is that the agreement had been reached.
Bill Everett, the county's chief executive, said Sunday that the negotiations were grueling and he's relieved it's over.
"And I think it’s in the best interest for our county and puts us in the correct position for us to move forward," Everett said.
Dan Villa, the state’s negotiator, could not be reached for comment Sunday.
Because the EPA never named Anaconda-Deer Lodge County a responsible party, Anaconda's commissioners do not vote on the agreement. The process is different for Butte. Because the EPA listed Butte-Silver Bow County as a responsible party due to contaminated storm water, Butte-Silver Bow commissioners have a final say on Butte's agreement.
What were they talking about?
Although the discussion was behind closed doors, Benevento said last week that the Opportunity lawsuit added "an overlay of complexity” to the confidential talks.
The Opportunity suit against Atlantic Richfield Company is slated to go to jury trial in late October. Around 100 residents of Opportunity and Crackerville, both nearby communities, believe the EPA’s cleanup is insufficient. They sued Atlantic Richfield in 2008 for approximately $55 million worth of more work to bring the soil back to the quality it was before mining and smelting began and to build an underground wall that would capture groundwater.
Some legal experts say the lawsuit has the potential to set precedent if the residents win.
Atlantic Richfield has asked the U.S. Supreme Court to take the Opportunity case. The court has not yet made a decision on whether to hear it.
The former oil giant wrote in the Supreme Court request that it has already spent $400 million on Anaconda’s cleanup.
The EPA wrote a brief on behalf of Atlantic Richfield in 2016, saying the residents are barred by federal law from setting a new cleanup standard and that such an action would create conflict with the current cleanup.
But the Montana Supreme Court ruled late last year in a 6-to-1 decision that Superfund (federal) law does not preclude individuals from seeking damages using rules established by state law.
One of the questions still hanging out there is what the EPA will do about Willow Creek and seven tributaries that flow into upper Mill Creek south of Anaconda. The agency proposed a $17 million expansion and enhancement last year that would include waiving state standards on those waterways.
The EPA took public comment in July last year but never announced the agency’s decision.
Vranka said Thursday the decision has not been finalized yet. But a final decision on cleanup should include the fate of Willow Creek and the seven tributaries.
The attic cleanup to remove arsenic and lead, which is currently ongoing, has raised some concerns. Another frequently asked question is about the way the EPA measures the amount of arsenic on residential properties.
A financial agreement between the county and Atlantic Richfield has yet to be hashed out. The county tried to submit a proposed financial agreement to the public in 2016, but that stirred controversy and was never approved. The county sent a proposal to Atlantic Richfield this past spring for just the Old Works Golf Course. The county asked for a 10-year subsidy equaling $6.9 million along with debt relief of approximately $1 million.
Old Works now carries around $1 million in debt to Atlantic Richfield and has been struggling for years to stay afloat. It is more than a world-class golf course. It is also a cap to control storm water contaminated with arsenic.
The outcome of the county's proposal to Atlantic Richfield has not yet been announced.
Whether the county's financial agreement with Atlantic Richfield, which is separate from the consent decree, was also worked out or if the county still has to continue secret negotiations with Texas-based BP, the parent company of Atlantic Richfield, is unclear.
An additional question to pop up recently is how a family’s well fell through the cracks in a system designed to be protective. That family, the Kitchels, found themselves drinking from a well that tested to have 700 parts per billion of arsenic.
The standard is 10 parts per billion of arsenic in drinking water. The family drilled the well in 2010 and built a house on the property in 2015.
Vranka said the couple got a new shallow well, and the water coming from it now meets standards.
Both Vranka and Benevento called the situation a learning experience to make sure it doesn’t happen again.
“We don’t want to be in the area of pointing fingers,” Vranka said.
But it begs the question of just how sound the county’s system of ensuring new wells are always tested is, how protective the EPA’s oversight is, and whether additional controls will be put into place to ensure a similar situation doesn't happen again.
Patricia Gallery, vice president of Atlantic Richfield, and Montana Gov. Steve Bullock both said Sunday they were pleased the agreement has been reached.
Benevento said Thursday that interim EPA Administrator Andrew Wheeler is focused and wants to make sure Butte and Anaconda's cleanup schedules are not affected by former EPA Administrator Scott Pruitt's resignation. Pruitt resigned earlier this month.
Pruitt put Butte and Anaconda on an emphasis list late last year. Benevento said the emphasis list has not changed.
"He (Wheeler) has cattle-prodded everybody that it's still a priority," Benevento said.
Benevento also says the process should have never taken 35 years.
“America entered World War I, went through the Depression and World War II in a shorter timeframe than it’s taken to get this cleaned up. People have said to me Superfund is complex, and it is, but so was World War II,” Benevento said.