An apparent disconnect flared Friday between Butte-Silver Bow and the federal agencies involved in Superfund negotiations over the public release of a just-agreed-to Butte Hill consent decree.
On Thursday, when the EPA announced that an agreement had been reached, spokesman Chris Wardell told The Montana Standard that the substance of the decree, which will lay out the road map for the Butte cleanup, would be made public after it has been lodged with the federal court, which administers the process as part of a long-running lawsuit.
Legally, the problem is that the consent-decree agreement cannot be lodged with the court until it has been signed by all parties.
And Jon Sesso, Butte-Silver Bow’s longtime Superfund coordinator, insisted Friday that Butte-Silver Bow “isn’t signing anything until all of these documents are in front of the public and we’ve had the opportunity to answer questions about them.
“Only then would we ask the council for authorization to sign this consent decree,” Sesso said.
Sesso said in response to The Montana Standard’s questions about this contradiction in terms, he called EPA again Friday afternoon, and was assured the agency understood Butte-Silver Bow’s position.
“I’ve made a commitment to the public and to the Council that we would have a public process, and that these documents would be made public and explained thoroughly” before any sign-off, he said. “I’m not going to go back on that.”
The DOJ did not respond to a request for comment. The EPA declined a request to interview Henry Elsen, EPA attorney for the Butte Hill. Wardell said in response to the request that it does not "have an update from our statement" Thursday.
Wardell reiterated Thursday's emailed message:
"If the consent decree is approved by all entities, DOJ will submit it to the court. The public will then have 30 days to comment on the consent decree before further action is taken," Wardell wrote.
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When asked why the next steps on a document that has been ironed out for years in confidential talks are now a matter of some confusion, Wardell did not respond.
Sesso said Friday he had been surprised on Wednesday after the agreement was reached when the U.S. Department of Justice lawyer in the negotiations informed the other parties that he would now have to run the agreement past the deputy attorney general for environmental affairs to make sure it was technically in the correct form before it was released.
Sesso said he protested, saying, “The public in Butte is not going to want to sit around very long” before knowing the contents of the consent decree.
He said the Department of Justice attorney told him that was understood and the agency’s review would be completed as soon as possible.
Normally when a decree is reached, Sesso said, it is signed and lodged with the court before a public comment period. He said that’s the way it worked with the Berkeley Pit consent decree in 2002, and with other recent agreements, making this situation unusual.
But in this case, because the county itself is a “settled defendant” in the matter, he said, the process must be done differently.
“We feel obligated” to make this public, Sesso said of his fellow county officials. He added because the negotiations were conducted in secret, “We haven’t been able to answer people’s legitimate questions” about what’s been agreed to.
“EPA’s simply out of sync with our expectations here,” Sesso said. “All I can tell you is we’re not going to be signing anything until we’ve vetted it thoroughly with the community and the Council.
“That’s the way it’s got to be, and we’re not giving any quarter” on that, he said. “We’re not going to rush this and not allow our process to be followed.”
Reporter Susan Dunlap contributed to this story.