ARCO Tells Montanans to Butt Out of Cleanup

BUTTE, Mont. (CN) - The Atlantic Richfield Co. (ARCO) countersued 97 Montanans, claiming their demand for environmental remediation of a smelter site would cost it $100 million more than the plan approved by the Environmental Protection Agency.

The Anaconda Copper Mining Co. began shipping copper ore to it smelter near the communities of Opportunity and Crackerville in 1884. The smelter - which produced wastes with high concentrations of arsenic, copper, cadmium, lead and zinc - was shut down in 1980 and placed on the National Priorities List under the U.S. EPA's Superfund Program in 1983.

The EPA has overseen cleanup of the 300-square-mile smelter site for more than 30 years. But residents in neighboring communities challenged the EPA's remediation plans for removal of arsenic, and sued ARCO in state court, seeking additional remediation.

That lawsuit, Christian, et al. v. Atl. Richfield Co., (No. DV-08-173), was filed in 2008 in Montana's Second Judicial District, in Silver Bow County. It seeks damages for the cost of restoring the residents' properties.

ARCO, which owns more than 1,300 gas stations in the West, sought summary judgment based on the statute of limitations, and Silver Bow County Judge Brad Newman granted the motion on all claims. The Montana Supreme Court affirmed in part and reversed and remanded in part for further action on Sept. 1 this year.

On Dec. 22, ARCO countersued 97 people in Federal Court, claiming the relief they seek would interfere with the EPA's remediation efforts, in violation of federal law.

The residents brought in two experts, one of whom said the EPA's remediation efforts for arsenic are insufficient. The other expert provided specifics about what he thinks should be done to protect the communities.

"Mr. [John] Kane proposes to remove the entirety of the top two feet of soil from every one of defendants' properties - 650,000 tons of soil in all - regardless of whether the soil contains elevated levels of contaminants and regardless of the source of any such contamination, and to transport that soil to a waste repository in Spokane, Wash.," according to ARCO's lawsuit. "Mr. Kane then proposes to replace defendants' yards with 'clean' fill from unidentified sources and to re-sod the yards.

"Mr. Kane also proposes a groundwater remedy for the site involving construction of 'underground Passive Reactive Barrier (PRB) wall[s].' The largest of these PRB walls would be 8,000 feet long, 15 feet deep, 3 feet wide."

That additional remediation would cost $38 million to $101 million, ARCO says.

The oil company claims the residents are precluded under federal law from bringing common-law "restoration damages" in state court.

"The Comprehensive Environmental Response, Compensation and Liability Act ... provides for exclusive jurisdiction in federal court for any challenge to a CERCLA remedy, and bars such challenges in all instances other than those expressly allowed by the statute," the complaint states.

ARCO says the EPA has been handling the cleanup for more than 30 years and doesn't need any interference.

"CERCLA does not prohibit all common-law claims for property damages, but it does bar state-law claims that challenge EPA's chosen remedy at a Superfund site," the complaint states. "The reason for this prohibition is apparent: CERCLA is designed to facilitate orderly, efficient and effective environmental clean-ups overseen by federal and state regulators with expertise in such matters. Permitting concurrent private-party actions that are inconsistent with an EPA-selected remedy would interfere with the remediation process and potentially exacerbate the contamination problem.

"Defendants' restoration claim is precisely the kind of improper attack on EPA's selected remedy that CERCLA forbids."

ARCO seeks declaratory judgment that the defendants cannot challenge the EPA's selected remedy and an injunction preventing them from initiating any alternative remedial action.

ARCO'S attorney, John Davis of Poore Roth & Robinson in Butte, was not available for comment over the holiday weekend.

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