The lawsuit against Atlantic Richfield filed by residents of Opportunity and Crackerville will be heard by the U.S. Supreme Court.
Opportunity and Crackerville are communities of perhaps 500 residents and are a part of the larger Anaconda Superfund site, which has been on the National Priorities List since 1983. The residents sued Atlantic Richfield in 2008, claiming the cleanup the residents had received isn’t good enough.
Residents want the company to spend an additional $50 million to $57 million and remove an additional 650,000 tons of soil.
Atlantic Richfield says it has already spent $470 million on the Anaconda Superfund cleanup, which encompasses more than 300 square miles of aerial contamination of arsenic, lead, copper, zinc and cadmium from a former copper smelter.
Residents want 2 feet of topsoil removed, instead of the 12-18 inches the U.S. Environmental Protection Agency ordered. Residents also want an 8,000-foot-long trench dug to protect their drinking water wells from an underground plume of arsenic contamination. EPA says the plume of contamination is under control.
Noel Francisco, the U.S. solicitor general, recommended last month that the Supreme Court not take the case.
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He argued the Supreme Court justices should allow the case to go before a Montana jury trial first. The case was supposed to have been heard by a jury last year in Butte district court. But because Atlantic Richfield had already filed with the U.S. Supreme Court, the jury trial was postponed.
Atlantic Richfield wants the U.S. Supreme Court to hear the case because it says the Opportunity residents’ claims will interfere with the current remedy established by the EPA, which allows 250 parts per million of arsenic in the soil.
How soon the Supreme Court justices will hear the case is not clear at this stage. The U.S. Supreme Court usually only hears a case when it involves an unusually important legal principle and only hears a tiny fraction of the requests for appeal that come before it.
The residents want to see the level of arsenic in the soil dropped down to 8 parts per million (ppm).
EPA says that roughly 25 ppm of arsenic in the soil would be approximately the natural amount. But the soil is so disturbed in the Anaconda Superfund site due to the old smelter’s nearly 100 years of emissions, the EPA had to go outside of Anaconda to determine what the agency says is the natural benchmark.
Justin Stalpes, attorney with Bozeman-based Beck, Amsden and Stalpes, declined to comment. Atlantic Richfield Company did not respond to a request for comment.