The Shoshone-Bannock Tribes of Fort Hall Reservation last week celebrated a major victory in the U.S. Supreme Court in a long-standing case against FMC Corp., a month after filing a lawsuit in U.S. District Court in Idaho in another long-standing battle over a land swap between the U.S. Bureau of Land Management (BLM) and J.R. Simplot Co., Boise.
The U.S. Supreme Court’s Jan. 12 ruling against FMC was the company’s final appeal contesting the Tribes’ jurisdiction to regulate storage of about 22 million tons of hazardous waste on the Eastern Michaud Superfund site west of Pocatello.
By denying certiorari, the nation’s highest court deferred to findings of the Shoshone-Bannock Tribal Courts and the 9th Circuit Court of Appeals affirming a District Court’s findings that required FMC to comply with tribal jurisdiction. In November 2019, the 9th Circuit Court ruled unanimously that the Shoshone-Bannock Tribes can impose $1.5 million in annual fees against FMC for storing the waste.
That ruling meant the fees do not include interest for past due annual storage fees as long as the hazardous waste is stored within the reservation. Annual waste storage fees not collected since 2002 would total about $27 million.
A Tribal Appeals Court said tanker rail cars buried at the site contained from 200 to 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 cleaning them would be dangerous to employees.
The 9th Circuit Court ruled 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. Phosphorus is toxic when ingested, absorbed, or inhaled. It ignites when exposed to air.
Paul Yochum, FMC’s spokesman in Pocatello, could not be reached for comment about the Supreme Court ruling, but he expressed disappointment in the 9th Circuit ruling 14 months ago. “FMC has made substantial progress working with the U.S. Environmental Protection Agency, 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.”
FMC operated the world’s largest elemental phosphorus plant outside Pocatello on reservation land from 1949 to 2001, when it shut down the four-furnace complex. Virtually all of the FMC plant site is on reservation fee land owned by the company.
After the plant’s shutdown, the tribes created the Shoshone-Bannock Tribes’ Waste Management Act, which stipulated requirements for companies that generate or store waste on the reservation, including the monitoring of contamination sources.
The federally recognized Shoshone-Bannocks have sovereign authority over the Fort Hall Reservation under terms of the Fort Bridger Treaty of 1868. The reservation spans 840 square miles. Ninety-seven percent of it is either tribal land or land held in trust by the United States. The tribes and off-reservation residents rely on the Portneuf River that flows through it and the Fort Hall Bottoms along its northern bank for fishing, hunting, and recreational uses.
In 1990, EPA declared FMC’s plant and storage area and the adjacent off-reservation J.R. Simplot Co. phosphate fertilizer plant the Eastern 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 to 2001, but refused to pay it beyond 2002 after ceasing active plant operations.
In 2005, the Shoshone-Bannocks filed suit in U.S. District Court to force FMC to comply with its voluntary agreement to obtain the annual tribal permit. FMC subsequently appealed every ruling by tribal and federal courts, but FMC now has exhausted its appeals with the U.S. Supreme Court ruling.
In the land swap matter, the Shoshone-Bannock Tribes filed suit in U.S. District Court in Idaho last month over a land exchange agreement between the J.R. Simplot and the BLM that was signed by a top BLM official last August (GM Aug. 21, 2020).
The 713.5 acres of federal land being conveyed to Simplot adjacent to its Pocatello, Idaho, phosphate plant will enable the company to expand its phosphogypsum stacks and construct some 97 acres of cooling ponds to reduce fluoride emissions, provide additional space for plant operations, and extend the plant’s life. In exchange, Simplot is donating 160 acres and providing an additional 666.46 acres of non-federal land within the Chinese Peak-Blackrock Canyon area.
Advocates of the swap said it will protect about 600 Simplot jobs at the Pocatello plant and Smoky Canyon Mine and another 1,300 jobs that indirectly rely on the Don Plant.
The Shoshone-Bannocks are concerned the agreement will pave the way for more air and water pollution of the already contaminated site, imperiling cultural resources. In the current complaint, the Tribes criticize the Environmental Impact Statement (EIS) analysis and question whether Simplot has clear title to the lands it wishes to swap. It also alleges that shooting has occurred on some of the lands, which means lead contamination and other debris.
Simplot first proposed the exchange in 1994, but the approval process was delayed after concerns arose regarding groundwater quality in the Eastern Michaud Flats near Simplot’s Don Plant and the adjacent FMC elemental phosphorus plant, which was designated a Superfund site in 1998 under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). BLM approved the exchange in 2007, but the Shoshone-Bannocks challenged it in U.S. District Court in Idaho, charging that BLM was obligated to prepare an EIS under the National Environmental Policy Act (NEPA). In May 2011, the court agreed with the Tribes and ordered BLM to prepare the EIS. BLM issued a final EIS earlier last summer (GM June 5, 2020) before approving the swap in August.