FMC Corp. intends to contest in the U.S. federal court system a Shoshone-Bannock Tribal Court of Appeals ruling that FMC must continue to pay the Shoshone-Bannock Tribes $1.5 million annually for waste stored at the site of FMC’s closed elemental phosphorus processing plant west of Pocatello, Idaho.
The tribal appellate court announced May 11 that the tribes retain jurisdiction on the property within the Fort Hall Indian Reservation and that the company must adhere to tribal environmental laws.
Shoshone-Bannock Tribal Council Chairman Nathan Small welcomed the ruling, saying businesses conducting activities within the reservation’s boundaries must be subject to tribal law. FMC spokesman Paul Yochum called it disappointing.
The ruling comes on the heels of the U.S. Environmental Protection Agency’s (EPA) April approval of an Interim Record of Decision that would cap rather than extract radioactive slag, buried phosphorus, and heavy metals that remain at the FMC site.
Shoshone-Bannock officials called the EPA “cap and retention” cleanup decision short-sighted. They had urged that the waste be removed rather than left on the FMC property for fear it would contaminate the nearby Portneuf River that runs through the reservation. They argued that FMC’s massive profits made from its elemental phosphorus operations should be spent on completely cleaning up the property.
From 1947 to December 2001, FMC operated the world’s largest elemental phosphorus plant. All of its structures, including four massive electric furnaces, were torn down and removed by 2006. Zoned heavy industrial, the property retains an estimated $12 million in assets, including about $10 million in rail infrastructure.
The FMC plant’s closure was a major economic blow to the area. In 2000, the FMC plant and its related phosphate mining operation boasted a payroll of more than $42 million and an average salary/benefit package of more than $70,000 per employee. More than 300 worked there when the plant was shut down.
The FMC site and the adjacent J.R. Simplot property, where a phosphate fertilizer complex continues to operate, were designated as the Eastern Michaud Flats Superfund site in 1990. The Simplot plant in Power County lies outside the reservation, unlike the 1,400-acre FMC property that straddles that county and the reservation.
Begun in 1998 when an EPA Record of Decision was signed, the case involves whether the Shoshone-Bannock Tribes have jurisdiction over FMC, which has owned fee land on the reservation. FMC and the tribes agreed that year to a jurisdictional dispute compromise, which entailed FMC paying the tribes $1.5 million annually for wastes generated by the plant’s operation and the tribes agreeing FMC would be exempt from tribal waste-related ordinances.
FMC officials said that agreement was needed to keep the plant operating, but it was terminated when the plant shut down more than 10 years ago because FMC was no longer generating the waste. FMC ponds used to manage wastewater were capped and closed under a Resource Conservation and Recovery Act (RCRA) consent decree.
In 1998, FMC paid $11.9 million – the largest civil penalty settlement ever at that time – under a 1976 hazardous waste law. It also had to cap the ponds, which had caught fire at times over the decades. Construction of the pond caps was completed by 2005.
Yochum said the tribal appellate court’s decision represents one step in a lengthy litigation process that started in 2005, when U.S. District Judge Lynn Winmill ruled in favor of tribal jurisdiction over FMC and compelled FMC to apply for a tribal special use permit.
FMC then exhausted tribal administrative and judicial remedies before seeking further review of the tribes’ jurisdictional and other claims in federal court.