The EPA has released its proposed plan for Butte Priority Soils which is open for public comment.
The tenor of much of the comments at a recent public meeting on the plan was that the proposed plan was negligent because it did not include a provision for a free-flowing, restored Silver Bow Creek. The quality of some of these public comments was disturbing because they revealed a lack of an understanding of what can be mandated under Superfund. While there is an EPA mandate to consider public input, the public has an obligation to provide reasoned, data backed input.
Simply saying that this is a bad plan or EPA lies, while providing no support, has little utility. The public meeting presented some demagogic and histrionic comments that do little to advance the cleanup. For example, there is no data to support and much evidence against the argument that the storm water retention ponds will be mosquito ponds.
Like any public policy, Superfund has limits as to what can be done under the law. Government agencies such as EPA must act within those restrictions. Agencies cannot do anything they want and have it stand up if challenged.
Superfund law parameters are:
1. To protect human health and the environment from the harms that could occur from the possible releases of toxic substances and EPA cannot order any action that does not directly relate to this purpose.
2. To remediate, not restore.
A. EPA cannot order ARCO to create and sustain a free-flowing Silver Bow Creek because such a project is not necessary to protect human health and the environment from threatened toxic releases. EPA cannot order more than the law sanctions.
B. Nothing in the proposed plan would preclude a free-flowing, recreated Silver Bow Creek, if financial and engineering provisions could be obtained apart from Superfund. The proposed plan has been designed to countenance, particularly during the remedial design phase, a free flowing creek in the future if entities apart from Superfund make it happen.
C. The currently proposed conceptual plan for Silver Bow Creek provides more for Butte than EPA could order on its own under what is called a Unilateral Administrative Order. There is no threat by EPA involved in this statement; this is a statement of fact.
Contrary to some melodramatic statements, the EPA is not threatening Butte— take this cleanup or we will punish you with a poorer cleanup. A UAO cannot mandate what is in the conceptual plan; it represents, frankly, ARCO going beyond the law’s limits.
The argument that EPA has been remiss in not ordering ARCO to provide and sustain a free-flowing Silver Bow Creek is misplaced.
I have been a persistent Superfund critic and there are still issues to address such as broadening the current health study to include looking at the health effects of arsenic and mercury exposure, diseases other than cancer, the synergistic and cumulative effects of toxics exposure and the health effects of these toxics on the poor in Butte. We need to be alarmed by MDEQ’s proposal for the Montana Pole Plant that would not remediate deadly dioxin but would leave it on site.
There are issues under the proposed plan that need further discussion: the waiver of a state water quality standard; how the RMAP program will be extended to the Flat and how environmental justice will be pursued.
But the proposed plan does represent significant progress. "The time has come to think anew and act anew. We must disenthral ourselves." (Lincoln) There is much in it that goes beyond what EPA can mandate under Superfund. It in no way precludes a Creek in the future. While a restored Creek is a very desirable restoration goal for which Restore Our Creek needs our admiration and active support, it is beyond the scope of what a Superfund remediation remedy can order done. Maybe ARCO will give Butte a restored Creek. But EPA cannot order ARCO to do so. To demand that EPA mandate what it cannot legally mandate is to demand the impossible. “Striving to be better we often mar what is well.” (Shakespeare)