As nearly 100 Opportunity residents seeking a more thorough environmental cleanup await their day in court, the U.S. Solicitor General recommended Tuesday that the U.S. Supreme Court justices not take up the case and warned that the Environmental Protection Agency could step in and squash the residents’ cleanup plan, even if they win a Montana jury trial.
The case began 11 years ago, when Opportunity and Crackerville residents sued Atlantic Richfield Company in an effort to force a more extensive and expensive cleanup.
After wending through the Montana court system for 10 years and the state’s highest court, the suit was supposed to go to jury trial in Butte last year. But that was put on hold when the Atlantic Richfield Company petitioned the U.S. Supreme Court to consider taking up the case in the spring of 2018.
Since that petition was filed, the U.S. Supreme Court has been considering taking up the case.
What the U.S. Supreme Court justices will do now that Noel Francisco, the solicitor general, has made his recommendation is unknown.
Francisco recommended the case go before a Montana jury instead of directly to the U.S. Supreme Court.
If the Opportunity residents win at a trial before their peers, Atlantic Richfield could still petition the U.S. Supreme Court for an appeal, he noted.
But Francisco said it may not even come to that. Because of Superfund law, even if the residents do win at trial, EPA may prevent the residents from moving forward with their own cleanup plan.
Francisco wrote in his brief that EPA is not bound by the Montana court’s judgment.
“If respondents (the Opportunity residents) seek to undermine remedial measures that are inconsistent with EPA’s cleanup, the government can use any of the mechanisms that (Superfund law) provides, including administrative orders and enforcement actions, to ensure that EPA’s remedy is not undermined,” he wrote.
Atlantic Richfield said in its petition to the U.S. Supreme Court last year that it has already spent $470 million implementing the Anaconda Superfund cleanup, which seeks to remediate the effects of a century of copper smelting.
Francisco also wrote that another outcome of the case could be that Atlantic Richfield argues during jury trial that, under Montana state law, the proposed remedial activities are not "feasible or appropriate."
Francisco said that Montana state law limits residents’ entitlement for restoration damages with a need for proof that their proposed remedial activities are “feasible and appropriate.”
“Even under the Montana Supreme Court’s interpretation of (Superfund law), petitioner (Atlantic Richfield) can argue at trial that the proposed activities are not feasible or appropriate because they would be contrary to federal law, and that the state-law prerequisites to a restoration-damages award therefore are not satisfied,” he wrote.
He said that requiring Atlantic Richfield to pay additional sums as state-law restoration damages to fund additional cleanup measures would “conflict with the federal scheme.”
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The residents want Atlantic Richfield to spend $50 to $57 million more than it has in order to remove an additional 650,000 tons of soil.
Francisco says the residents want the soil brought to 8 parts per million of arsenic. EPA says that roughly 25 ppm of arsenic in the soil would be approximately the natural amount.
To determine that natural amount, EPA had to look outside of Anaconda, where the soil has been so disturbed by smelter contamination that it was impossible to find a natural benchmark within the city-county.
EPA’s cleanup standard is 250 ppm of arsenic in the soil. That is true for both the Anaconda Superfund site, which includes both Opportunity and Crackerville neighborhoods, as well as for the Silver Bow Creek/Butte Area Superfund site.
The Opportunity and Crackerville plan would also include taking away two feet of topsoil, instead of EPA’s depth of 18 inches. The Opportunity and Crackerville residents also want an 8,000-foot trench dug into the ground to protect their drinking water wells against an underground plume of arsenic contamination that EPA says is under control.
Francisco wrote that these proposals “do not seek to simply supplement” the Superfund cleanup. Rather, they would directly impact the cleanup, he wrote. He said tearing up the current protective cap or layer of clean soil on the residents’ yards “could expose the neighborhood to an increased risk of dust transfer or contaminant ingestion."
He also said in the brief that trying to persuade a state court jury that such a restoration plan is “proper” constitutes a challenge to EPA’s selected response. He said in writing that EPA is not a party in this case and is not bound by the Montana Supreme Court’s conclusion that the Opportunity and Crackerville residents are not potentially responsible parties.
“Indeed, EPA informed respondents (the residents) in April 2018 that the government considers them potentially responsible parties (PRP’s) … and that they cannot proceed with any remedial action without EPA’s authorization. Respondents (the residents) do not appear to dispute this understanding,” Francisco wrote.
How Opportunity and Crackerville residents could dispute EPA’s understanding is not clear.
Doug Benevento, former EPA Region 8 administrator, told a crowd of about 100 people during a public meeting in April 2018 that residents could be liable if any “damage” was done to the current cleanup in Opportunity or Crackerville.
At the time, Benevento said the comment was not intended to scare people and said it was better to be up front rather than “surprise” residents later on. But some in Anaconda said after the meeting they felt the comment was threatening. Rose Nyman, long-time Anaconda government watchdog, who attended the meeting said at the time that she took it as a threat.
Francisco called the Montana Supreme Court's 6-1 decision in 2017 to allow the case to go to jury trial "flawed," but he said the proceedings at jury trial "may shed further light" on the issues and "clarify" the "relationship" between the Opportunity residents' wishes and EPA's response action. Therefore, Atlantic Richfield's petition to take the case to the highest court in the nation should be denied, he said.
Justin Stalpes, the Bozeman-based lawyer who represents the Opportunity and Crackerville litigants, declined to comment.
Wyn Hornbuckle, deputy director for the Department of Justice's office of public affairs, and Atlantic Richfield Company also declined to comment.