Former District Judge Brad Newman raised questions Thursday about the legality of the state and county signing the consent decree to finalized cleanup plans for the Butte Hill given that the decree doesn't include creating a natural waterway from Texas Avenue to George Street at the confluence.
Newman spoke during the public comment period at the Environmental Protection Agency's second and final public hearing at the Montana Tech library auditorium. The EPA held the meeting to allow Butte residents to speak their minds about the agency's proposed changes to the 2006 record of decision, which laid out the Butte Hill cleanup. The consent decree will finalize those cleanup decisions.
But many, including Newman, spoke about other concerns they have regarding the Butte Hill cleanup. The majority of the back-to-back comments from the nearly 100 members of the public pertained to health worries. Many also brought up the issues that have long swirled around upper Silver Bow Creek.
Newman weighed in on the issue for the first time publicly since he wrote his decision in August 2015 on the lawsuit which Silver Bow Creek Headwaters Coalition brought against the Department of Environmental Quality over the name of the drainage ditch that runs from Texas Avenue to George Street at the confluence. For years the drainage ditch had been called "Metro Storm Drain" or the "MSD channel."
But the Silver Bow Creek Headwaters Coalition fought to make the state reconsider and call it "Silver Bow Creek." Newman ruled in favor of the Butte-based coalition.
Fritz Daily, longtime Superfund activist and a member of that coalition, has long said Newman's opinion meant that upper Silver Bow Creek — the stretch from Texas Avenue to George Street — is a creek and therefore waters of the state. Daily has long insisted that EPA would have to consider Newman's decision when thinking about remediating and restoring that stretch of town and that a fully restored, meandering, free flowing creek would have to be built.
Newman agreed with Daily Thursday evening.
"DEQ is bound by the decision," Newman said during his remarks. "How can DEQ and the county enter into a consent decree that ignores the law of Montana? Silver Bow Creek is a natural water course. The decision I made the state did not appeal. It was a valid legal precedent. Despite man-made alterations, it is a natural water course not just in name only. Silver Bow Creek's legal status must be observed by the interested parties in this consent decree."
Tom Stoops, DEQ bureau chief, said after the meeting that Newman raised "a very good question."
"We'll have to look into it as we go through the process," Stoops said.
Henry Elsen, EPA attorney for the Butte Hill, did not comment beyond saying that the EPA would respond at a later date.
The EPA will have to provide what it calls a "responsiveness summary" and answer questions and comments made during the meetings and to comments made in writing. (See information box.)
Others brought up worries about health and Butte's cancer rates.
Barbara Miller, who heads the local Habitat for Humanity, said that Butte's lead level which triggers a cleanup in a yard or attic is three times higher than the Department of Housing and Urban Development's standard for lead.
"Why can't they meet basic HUD standards?" Miller asked. "Why not adopt the same action level Anaconda has at 400 (parts per million)?"
Butte's standard for triggering a lead cleanup in a yard or attic is 1,200 ppm.
But questions such as these were not what the EPA held the meeting to discuss. The agency is looking for comments on its proposed changes to the 2006 record of decision, especially the proposal to waive state water quality standards for copper and zinc during storms and spring snowmelt conditions.
Most who addressed waiving the water quality standards asked why that would need to happen or if the EPA has really considered all options. But, about four did speak in favor of the proposed changes.
Ian Magruder, a Missoula-based consultant for Citizens Technical Environmental Committee, said that he has read "every major EPA document in the last 15 years" on the Butte Hill. He said he's noticed a change in the EPA's language and position in recent years.
"A lot are focused on upper Silver Bow Creek restored to a flowing, meandering channel, and I in no way disparage that dream," Magruder said. "But when I look at the proposed plan, I do realize that that is absent, but I see a lot of good things in it. I see just about everything we were fighting for 15 years ago."
Sister Mary Joe McDonald brought documents written by Atlantic Richfield Company in 2003 and said the documents promised aesthetically pleasing trees and grass along the current channel that exists from Texas Avenue to George Street.
"Now those trees are struggling to survive," McDonald said.
Even the way forward was up for dispute among the public. One citizen, Bob Brock, said he would like to see the EPA "buck their boss" and give more time to consider the public comments rather than move forward within the next two and a half months. Doug Benevento, former EPA Region 8 administrator, set the clock ticking to get a signed consent decree by Aug. 12 before he moved up within the organization.
But Mike Paffhausen, another citizen who used to work as a consultant to some of the agencies in the room, said a creek isn't possible because there are no headwaters, and he said he thinks it's time to sign the consent decree.
The meeting was so contentious, and so many wanted to speak — some for longer than the allotted five minutes — that the meeting ran an extra thirty minutes until the EPA announced that the room had to be vacated. Daily was so angry when the EPA cut him to five minutes to speak that he left the podium in a huff.
"I'm offended," he said.