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Environment & Energy Report

Century of Toxic Gloom Drives Montanans Back to Supreme Court

Oct. 1, 2019, 10:00 AM

From his seat on a sun-worn wicker couch, Shaun Hoolahan reaches down to the corgi panting at his side and tells her to roll over. Bessie flips belly-up, exposing a pink, golf ball-sized lump on her chest.

“Tumors,” he said, pointing out the spot on the dog’s front left paw where a cancerous toe was amputated. “She’s got them all over her body.”

For years, grass wouldn’t grow on some parts of his two-acre property, and Bessie used to spend lots of time lying in the dirt in his yard, Hoolahan said. “I could fertilize, water, and just nothing would grow there,” he said. “The more I started to dig into it, the more concern I had.”

More than a century ago, farmers on the same Montana land noticed their horses getting ulcers where their noses brushed the ground to feed. They said their sheep mysteriously became ill, only to recover when they moved farther away from the copper smelter their community was built around. A federal appeals court agreed with one of the state’s biggest companies that the farmers were only exaggerating.

Today, Hoolahan’s yard and many of the former farmers’ properties are part of the largest Superfund complex in the country. The Environmental Protection Agency and Atlantic Richfield Co. have been working to clean it up for more than 35 years. Arco says it’s spent $450 million on cleanup efforts, and the EPA “has made substantial clean-up progress at the Anaconda Smelter Superfund site over the nearly four decades of work,” Chris Wardell, a spokesman for the agency, said in an email.

New landowners, though, say the soil is still poisoned from decades of the old smelter stack belching lead, arsenic, and cadmium, leaving layers of toxic waste, invisible to the naked eye, coating their yards and historic homes. They’re carrying on the legal battle that began a century ago—and this time, the law has been on their side.

Leaning on an article written into the state constitution at the height of the Earth Day movement, Montana’s highest court in 2017 allowed the landowners to take their claims to trial. Atlantic Richfield quickly asked the U.S. Supreme Court to intervene. Landowners will make their case in oral arguments in December, an opportunity their forebears were denied 108 years ago.

If the court decides the landowners can dictate their own cleanup and bill Atlantic Richfield for the costs, “it almost neuters Superfund,” said Shoshana Schiller, partner at Manko, Gold, Katcher & Fox LLP in Bala Cynwyd, Pa.

Copper Industry Built Anaconda

In 1876, New York entrepreneur Marcus Daly came to southwestern Montana to manage a silver mine in Butte. Gold prospectors had come and gone, and Daly didn’t see his fortune in silver, either. He saw it in the copper his miners were beginning to unearth.

He bought a mine in Butte, called Anaconda, and by the 1880s the area was producing millions of pounds of copper ore. Daly’s Anaconda Copper Mining Co. became one of the world’s largest mining companies during the 20th century, cementing copper as a dominant force in Montana’s economy and politics.

To process the growing loads of copper ore, the Anaconda company built a smelter on a hill overlooking the Deer Lodge Valley, about 25 miles from Butte. With the jobs at the smelter came a need for housing, grocery stores, restaurants, churches, and hotels.

Together, they became Anaconda, a company town marked for miles in all directions by the smelter stack that eventually would stand 585 feet high—30 feet higher than the Washington Monument. The smoke coming out of the stack made the air smell and taste like sulfur.

“Nobody ever moved there in a pre-contamination state,” local historian Brad Tyer said. “It was an industrial town from the very beginning.”

In the early 1900s, farmers and ranchers noticed signs of their crops and livestock being poisoned by arsenic, which is discharged in the smelting process. About 100 farmers formed an association to fight the Anaconda company, presenting evidence of sickly and deceased animals and dead plants in hopes of reaching a settlement. When that failed, knowing that damage claims would be too costly to pursue, local landowner Fred J. Bliss took action.

In 1905, on behalf of the farmers, he sued to shut down the smelter, claiming it had become a public nuisance.

Anaconda resident Jim Davis holds up a container made with copper smelted in the Montana town.
Photographer: Sylvia Carignan

About 240 witnesses testified and more than 800 exhibits were presented, including animal tissue, livers, and bones, according to court records. The company called the efforts from Bliss and the farmers a “campaign of gross exaggeration.” It countered that as a result of smelter renovations and a taller stack, heavy metals were spread over a wider area, preventing them from harming livestock, crops or property. It also argued that an injunction would mean the end of copper mining in Montana.

Creating Opportunity

The company proved the smelter’s remedies were effective, and that no further damage was being done, the U.S. Court of Appeals for the Ninth Circuit said in its 1911 opinion. Bliss and the farmers unsuccessfully pursued an appeal to the U.S. Supreme Court.

Afterward, the company bought out the properties that the farmers argued were practically worthless. It packaged them into 5- and 10-acre plots for sale in a town it christened Opportunity, appealing to smelter workers to settle down, grow fruits and vegetables, and raise a few pigs or chickens on their own small farms.

“Opportunity developed out of Anaconda initially as sort of a garden community, and almost a [public relations] stunt,” Tyer said.

Deep in the fine print for Opportunity’s plots, the company reserved a “right to pollute the atmosphere” and the Clark Fork River, which flows north past Anaconda toward Missoula. The clause was an effort to fend off future legal action by the new landowners.

Interactive Anaconda Timeline

In 1970, the year Earth Day was founded, Montanans voted to overhaul their state constitution. One of the 100 delegates tasked with the rewrite was the late C.B. McNeil, a fourth-generation Anacondan. His father was superintendent of the company’s arsenic plant.

“In high school in Anaconda in the early 1950s, I can remember tipping over the boat while duck hunting,” he told law students at his alma mater, the University of Montana, in the early 2000s, recounting a trip down the Clark Fork River. The river had turned red from Butte’s acidic mine waste.

“My watch stopped the next day. I took it into the jeweler and returned a few days later to pick it up. He simply shook his head and said, ‘C.B., the insides of your watch have been dissolved.’”

Montana wasn’t the only state seeking to strengthen environmental rights in the 1960s and 70s, a period when Congress passed the Clean Air and Clean Water acts. Illinois, Pennsylvania, Massachusetts, Hawaii, and Rhode Island also added provisions to their constitutions.

But Montana’s delegates wanted “the absolute strongest constitutional environmental provision,” a reflection of the times, McNeil said.

“The state and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations,” read the new article, based on language he proposed. Montanans ratified that change and others in the new constitution in 1972.

Copper’s Legacy

Five years later, Atlantic Richfield spent $700 million—$3 billion in today’s dollars—to acquire the Anaconda company.

Arco was one of America’s legacy oil companies, part of John D. Rockefeller’s Standard Oil until the trust was broken up by the Supreme Court.

The company took a chance on Anaconda during what it thought was a bottom in copper prices, betting on the sheer scale of the holdings. Instead, industry conditions became so dire that Atlantic Richfield closed the smelter in 1980 and, two years later, shuttered what had been the world’s largest open-pit copper mine, in Butte.

The same year the smelter closed, Congress created EPA’s Superfund program to address the nation’s worst environmental pollution. Superfund empowered the EPA to investigate pollutants, identify parties that could be liable for putting them there, decide on a remedy, and agree on cleanup with those parties to get the work done.

By acquiring the Anaconda company, Atlantic Richfield had taken on massive environmental liabilities, soon becoming responsible for cleanup under Superfund law.

“That purchase quickly became the proverbial albatross,” Atlantic Richfield would later write to the Supreme Court.

Butte and Anaconda in 1983 were put on the Superfund program’s list of about 1,300 of the nation’s most contaminated sites. The EPA’s first action was to evacuate about 36 households immediately east of the smelter, in a community called Mill Creek that had been “constantly exposed” to arsenic, cadmium, and lead in their soil, according to the EPA’s cleanup decision.

Some residents say the number of cancer diagnoses and deaths in their community remains too high almost four decades after the smelter closed, though the state of Montana hasn’t confirmed a cancer cluster in the area.

Over the past year, the Agency for Toxic Substances and Disease Registry and Montana’s health department have taken blood and urine samples from residents to determine their current exposure to lead and arsenic. The agency plans to publish its report this year.

Continuing Cleanup

Charlie Coleman, project manager for the EPA, and Luke Pokorny, project manager for Atlantic Richfield, stepped out of a white SUV near Rickards Street, between a small park with a playground and a log cabin-style home with a slightly sloped, lush green lawn. On a sunny, 85-degree day in July, sprinklers radiated water droplets and small rainbows over the grass.

The agency and company have spent years sampling yards in Opportunity and Anaconda for lead and arsenic. For yards that have test results above a defined level, the agency and company will offer to remove the contaminated soil, backfill with new dirt, and cover the whole thing with sod.

“Even though we’ve done some work in Opportunity, it’s been fairly limited,” Coleman said. “Probably one of the bigger residential properties that we’ve cleaned up is this property right here.”

“We re-sodded the whole thing,” Pokorny said, looking out at about two acres of green grass.

“Atlantic Richfield’s been good about working with landowners,” Coleman said. “A lot of people see big improvements with their property when the work is done. You guys have done close to 1,500 yards,” he said, talking to Pokorny, “and I can’t recall, beyond one hand, people that weren’t happy with the end result.”

As part of the cleanup process, Atlantic Richfield has also designed and built a new golf course atop smelter waste, restored wetlands, and re-planted areas where tailings, or mine waste, was buried, according to company spokesman Michael Abendhoff.

“Some people have different expectations and maybe aren’t satisfied, but we’re really proud of the program that we have, and it’s worked well for the people,” Pokorny said.

When Shaun Hoolahan heard the EPA and Atlantic Richfield managers refer to his lawn on Rickards Street as an example of a job well done, he started to list all his complaints about the insufficient cleanup.

‘Clean and Healthful’

In 2008, about 100 Opportunity landowners, including Hoolahan, filed a complaint against Atlantic Richfield in Montana’s Second Judicial District court, invoking their constitutional rights to a “clean and healthful environment.” The court greenlit the landowners’ lawsuit in 2016, saying that even if the right-to-pollute clause had been legal in 1914, “public policy and the Montana Constitution have rendered it impermissible and unenforceable.”

“Montana’s a very special place,” Hoolahan said. “When people think about coming to Montana, what do they think of? The beauty, the scenery, the land. And I think that’s part of the values that are reflected in the state constitution.”

Atlantic Richfield argued the EPA is the only authority that can direct cleanup at Superfund sites, and landowners should be barred from challenging the agency’s cleanup decisions. Montana’s Supreme Court disagreed in its 2017 opinion that allowed the case to advance, saying the Superfund program can work alongside state laws. That led Arco to petition the U.S. Supreme Court.

In 1980, it made sense for Congress to give the EPA’s Superfund program “a big stick and a lot of deference,” persuading intransigent companies to move toward quick cleanup, said Mark Templeton, an attorney at the University of Chicago who works with residents in East Chicago, Ind., who are also living with a lead smelter’s environmental legacy.

“Now that we’re three-plus decades into it, I think there are definitely times where there are real important questions about whether EPA has selected a protective remedy or not. And it can be very concerning when residents are, or feel like they are, excluded from getting the kind of cleanup that they deserve,” Templeton said.

A ditch marks the spot where the Restore Our Creek Coalition in Butte, Mont., hopes Silver Bow Creek will flow freely.
Photographer: Sylvia Carignan

Butte and Anaconda have embraced their industrial history. Anaconda celebrates “Smeltermens’ Week” with a parade and games for kids. In Butte, tourists visit the Berkeley Pit gift shop—packed with everything from copper-plated Moscow mule mugs to $5 crack-your-own geodes. They can also pay $3 to gaze into the remains of a hole 1 1/2 miles across and a third of a mile deep.

Silver Bow Creek

On a clear day, the turquoise-colored water that fills the pit is reminiscent of a tropical beach. Except the color comes from acid so corrosive that the EPA says the pit is “technically impracticable” to clean up.

Butte’s Superfund site includes the pit and 26 miles of Silver Bow Creek, which runs from Butte past Anaconda, and connects to the Clark Fork River. That’s the creek that once carried water so acidic, it dissolved the insides of C.B. McNeil’s watch.

Atlantic Richfield is working on a groundwater management system that would pump water out of the Berkeley Pit, clean it, and discharge it into Silver Bow Creek, turning the pit into the creek’s source. This is part of the EPA’s plan for the site, but some residents are pushing the agency to do more.

Since 2015, they have called for a clean, flowing Silver Bow Creek, with amenities like walking and biking paths. Community members in Butte are intently watching the outcome of the Supreme Court case, because if the EPA doesn’t accommodate the request, they say they may invoke the state constitution in their own legal challenge.

“The irony is that our 1972 Montana constitution says that everyone—everyone—has a right to a ‘clean and healthful environment,’ and yet, we’ve been 37 years in Superfund without getting that,” said Mary Kay Craig, a local activist supporting Butte’s Restore Our Creek Coalition and Citizens for Labor and Environmental Justice.

Risks for the Court

Opportunity’s landowners are asking for up to $58 million from Atlantic Richfield to pay for the land to be restored to its pre-smelter state—far more than the landowners themselves could afford, and more than the EPA has offered.

Atlantic Richfield argues landowners, under the legal climate the Montana Supreme Court created, could “tear up” work that has already been done even if it harms the environment. The EPA has warned landowners they could face enforcement action if they go forward with their own cleanup plan and make existing contamination worse—for example, by digging up contaminated dirt and allowing heavy metals to spread onto other properties or back into the air.

“At any time, the landowner on any Superfund site could decide to shred EPA’s plans and impose different, and potentially detrimental, multimillion-dollar cleanups,” the company told the U.S. Supreme Court.

State and national industry groups—the National Association of Manufacturers, American Fuel & Petrochemical Manufacturers, the National Mining Association, and the American Petroleum Institute—have also asked the Supreme Court to look at the Montana ruling. The federal government has requested time to argue on behalf of Atlantic Richfield before the court.

“The idea we should be able to have our land restored to its pre-contaminant state—it’s going to be hard for the court to say that’s not a fair right,” said Peter Gray, partner at Crowell & Mooring LLP in Washington, who isn’t involved in the case. “On the other hand, the court is not going to want to open the floodgates to lawsuits for everyone challenging EPA remedies.”

The court could rule narrowly enough to avoid some of those issues, but the case is complicated, said Noah Perch-Ahern, partner at Greenberg Glusker Fields Claman & Machtinger LLP in Los Angeles, who’s also not involved in the case.

“It’s going to be very difficult for the court not to make a mess,” he said.

The case is Atlantic Richfield Co. v. Christian, U.S., No. 17-1498, petitioner’s brief filed 8/21/19.

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To contact the reporter on this story: Sylvia Carignan in Washington at scarignan@bloombergenvironment.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergenvironment.com; Bernie Kohn at bkohn@bloomberglaw.com; Anna Yukhananov at ayukhananov@bloombergenvironment.com