Feds Fight to Keep Montana Superfund Settlement Talks Secret

The Berkeley Pit, near Butte, Mont., is a former open-pit copper mine measuring a mile long and half a mile wide. It has an approximate depth of 1,780 feet, 900 under water with the pH level of lemon juice. (Photo: Chris Marshall)
The Berkeley Pit, near Butte, Mont., is a former open-pit copper mine measuring a mile long and half a mile wide. It has an approximate depth of 1,780 feet, 900 of which are under water that has the pH level of lemon juice. (Photos: Chris Marshall)

HELENA, Mont. (CN) – The plaintiff and defendant in one of the longest ongoing environmental cleanup cases joined forces in a Montana federal courtroom on Tuesday to fend off a request by a newspaper and a citizens group to intervene in the decades-old Superfund case.

Attorneys for the U.S. Environmental Protection Agency and Atlantic Richfield – plaintiff and defendant, respectively – argued that the Montana Standard newspaper in Butte and the Silver Bow Creek Headwaters Coalition shouldn’t be allowed to access both previous and future records involving settlement negotiations.

Allowing public scrutiny of the negotiations, as well as to documents exchanged in previous and possibly future settlements from both the federal agency and the private corporation, would be a “death knell” to negotiations for remediating the nation’s largest Superfund site, noted Atlantic Richfield attorney Kyle Gray.

“When a case has settled, there is some room for the parties to come in, rework a confidentiality order and move forward from there,” Gray told U.S. District Judge Sam Haddon. “The reason that’s doable is because there’s no prejudice to the parties because they’ve already settled. Once the documents are exchanged, it could be really difficult if everything that changed hands was made public. That would make a settlement impossible.”

Although the case has been ongoing since 1989, the newspaper and citizen’s group only petitioned to intervene earlier this year after they were denied a public information records request about settlement negotiations involving a century of copper-mining pollution in Butte. The Justice Department had sued on behalf of the EPA over the cost of cleaning up the mining pollution left in the greater Butte area by the Anaconda Copper Mining Corporation, which later was purchased by Atlantic Richfield.

James Goetz, the newspaper’s attorney, said the records requested are public under Montana’s freedom of information laws, but that a 2002 confidentiality order prevented their release. It’s only recently come to those groups’ attention that the negotiated settlements by federal, state and local agencies might not be in the best interest of the community, he added.

“The main reason why the Montana Standard and the coalition didn’t intervene sooner is they probably had some trust in the federal government, the EPA and the state that the interests of the community would be well represented. That trust has been gradually eroded,” Goetz said. “They have a vital interest in the cleanup of Butte Hill and Silver Bow Creek, and realized that interest may not be protected by the federal government.”

He added that the fear voiced by EPA and Atlantic Richfield that making the records public would end negotiations is merely speculation, and “that’s not sufficient bases to base a protective order,” he said.

Arguing for the Justice Department, James Freeman said the negotiations – which involve deciding not just who will pay for the cleanup but also what the final solutions will be – is a complex discussion that will be hurt if “chronicled in the morning paper.” He added that the federal record of decision process has numerous opportunities for the public to weigh in with comments.

Judge Haddon took the matter under consideration, saying he’ll rule on the petition to intervene as soon as possible. He added, however, that if he rules in favor of the newspaper and coalition, that only opens the door to other complex questions.

butte-pit-3“Does the Montana Standard simply want to stand at the sidelines and observe what happens from this point forward? Would they be able to attend settlement discussions? Would the interveners be allowed to comment? Would they have access to documents that might be produced by one side or another over ongoing settlement discussions? Would the interveners participate in something like discovery?” he asked. “There are all manners of issues the court expects to be raised if this goes forward.”

After the hearing, Montana Standard editor David McCumber said he didn’t have an answer to those questions.

“I think this is a one-step-at-a-time process,” he said. “We will wait and see what the judge decides on our right to intervene in this matter. But we believe the negotiations should be public.”