Upholding previous rulings by Tribal and U.S. District Courts, the three-judge 9th Circuit Court of Appeals has ruled unanimously that the Shoshone-Bannock Tribes can impose $1.5 million in annual fees against FMC Corp. for storing 22 million tons of hazardous waste on the Fort Hall Reservation in eastern Idaho.
FMC operated the world’s largest elemental phosphorus plant near Pocatello on reservation land from 1949 through 2001, when it shut down the four-furnace complex. In 1990, the U.S. EPA declared FMC’s plant and storage area and the adjacent off-reservation J.R. Simplot Co. phosphate fertilizer plant a Superfund Site under CERCLA (the Comprehensive Environmental Response, Compensation, and Liability Act). In 1997, EPA further charged FMC with violating RCRA, (the Resource Conservation and Recovery Act).
A consent decree settling the RCRA suit required FMC to obtain permits from the Shoshone-Bannocks. FMC paid the $1.5 million negotiated annual hazardous waste use permit fee from 1998-2001, but refused to pay it in 2002 after ceasing active plant operations. The tribes then filed suit to collect the fee.
A Tribal Appeals Court said tanker railcars buried at the site contained from 200-2,000 tons of elemental phosphorus sludge or slag, up to 25 percent that remained in each of the tankers at the time they were buried because FMC concluded that cleaning them would be dangerous to employees.
The FMC site on 1,450 acres is near the Portneuf River and Fort Hall Bottoms, where groundwater contamination threatens the “gathering and subsistence fishing, hunting, and gathering by tribal members at the river, as well as the tribes’ ability to use this important resource as it has been historically used for cultural activities,” the Tribal Court said.
The 9th Circuit Court ruled that FMC’s waste “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare” of the tribes to the extent that it “imperil[s] the subsistence or welfare” of the tribes.
Annual waste storage fees not collected since 2002 would total about $27 million.
“We can now work to fully implement our hazardous waste main act regulations and develop safety monitoring and notification networks,” said Tribal Environmental Waste Manager Kelly Wright, who added that the storage fees also would be used for compliance and cleanup.
FMC spokesman Paul Yochum told Green Markets that FMC is disappointed in the ruling and is reviewing both the decision and the company’s options. “FMC has made substantial progress working with the U.S. EPA, the tribes, and the state of Idaho to remediate the Pocatello plant site,” he said. In the meantime, Yochum said “FMC will continue to meet its environmental obligations at the site and redevelop the property for the benefit of all Southeast Idaho residents.”