Arsenic Blankets This Tiny Montana Town. Its Residents Are Asking the Supreme Court to Let Them Clean It Up.

The case could affect the cleanup of hundreds of other polluted sites in the U.S.
December 18, 2019, 7:13pm
This Dec. 13, 2016 photo shows the old Anaconda smelter smokestack in the background behind the community of Opportunity, Mont.

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Serge Myers used grow vegetables in his yard. But he doesn’t anymore. There’s too much arsenic in the soil.

“I gave the garden up because I don’t know what I’m eating anymore, you know?” the 74-year-old said.

Myers lives on a Superfund site, the Environmental Protection Agency’s term for a highly polluted area, in Opportunity, Montana, a small factory town where many residents once worked for the industry responsible for polluting it.

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Every day for 75 years, the local copper plant’s nearly 600-foot smokestack pumped as much as 62 tons of arsenic into the air, seeping into the soil in an area the size of New York City. And for the past decade, Myers and about 100 other people in the town have fought the company responsible, Atlantic Richfield Co. or Arco, to do even more than what the EPA’s plan requires to clean up the mess.

Now the Supreme Court will decide whether the landowners can create their own plan for mopping up the arsenic and lead in the soil — and force the company to carry it out. The case, Atlantic Richfield Co. v. Christian, could affect how the EPA oversees the cleanup of hundreds of the most polluted sites in the country.

“So the question is what happens if a state, individuals — anybody — looks at EPA’s cleanup and says they want to do more than what EPA has done,” said John Cruden, an attorney who worked for more than two decades at the Department of Justice’s Environment and Natural Resources Division.

Arco, a subsidiary of BP, says Myers and the other residents don’t have the power to force the company to change the EPA’s cleanup plan, which has been underway for more than 36 years. Plus, the company has already spent $470 million trying to bring the levels of arsenic in the soil down to EPA-mandated levels of 250 parts per million.

“This would utterly destroy EPA’s whole design,” Arco’s lawyer Lisa Blatt said during arguments before the Supreme Court on Dec. 3.

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But the residents of Opportunity and neighboring Crackerville say the company hasn’t done enough, and they’re tired of waiting: The area has been on the EPA’s list of highly polluted sites since 1983, and the residents of the tiny town are still dealing with dangerously high levels of lead and arsenic in their yards. They want their land restored to its original condition, before the plant doused it with pollutants, which would cost the company an additional $50 million.

“You know, a lot of people who started this are no longer with us,” Myers said. “I’d like to see something accomplished in my lifetime.”

“My friends have died”

Myers used to work at the Anaconda copper smelter that Arco operated, which refined raw copper into wire for phone and power lines. He can still remember the days before the plant closed in 1980 when a layer of smoke hung over the town.

“Over the years, you know, some of my friends have died and stuff from different things that are probably associated with some of the bad stuff that’s in the area,” Myers said.

“I’d like to see something accomplished in my lifetime.”

Chronic arsenic exposure can cause lung, skin, liver, and bladder cancer and damage kids’ neurological development, according to the EPA. While people have died of cancer at high rates in the area, there isn’t yet research that links those deaths directly to the arsenic pollution from the plant.

The landowners sued for the first time in Montana state court in 2008. Almost a decade later, the Montana Supreme Court ruled in their favor, but the company appealed. Now, the Supreme Court is considering whether the residents of Opportunity can force the company to adopt their plan to clean up their properties and whether that would conflict with the EPA’s cleanup of the area.

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For its part, Arco is arguing the EPA’s cleanup can’t be extended or curtailed under state law because federal law takes precedence.

Challenging the EPA

Right now, the EPA is overseeing the cleanup of hundreds of Superfund sites across the country, and stakeholders often fight with the agency about how best to conduct them. Some of those sites are functionally impossible to fully clean up.

Take, for example, the Superfund site in Libby, Montana, where several hundred people died from asbestos contamination. The town of 2,600 people remains contaminated — even after the EPA wrapped up its 19-year, $600 million effort in 2008. People are still getting sick there.

If the Supreme Court sides with the landowners in Opportunity, that could allow people near other Superfund sites, like the one in Libby, to sue as well, which could ultimately affect how the EPA operates.

Making it easier to hold the EPA accountable for cleaning up Superfund sites might seem like an idea environmentalists would unilaterally support, but they’re split on the case. Some worry that if the EPA can be more easily challenged, it would ultimately slow the agency down. Others think allowing lawsuits under state law to extend cleanup would help push the EPA to fully clean up Superfund sites.

“You never have finality, because they're always going to be somebody that wants more than what EPA has done,” Cruden said. “There are hundreds of Superfund sites in the nation. A lot of them have landowners nearby, and cleanup at those sites is already very expensive.”

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This Dec. 13, 2016 photo shows the former Anaconda smelter smokestack behind a gate barring access to the contaminated site in Anaconda, Mont. (AP Photo/Matt Volz)

But experts also say it’s unlikely that the Supreme Court will come down firmly on the landowners’ side. During oral arguments, the justices appeared to lean toward issuing a more limited ruling. While they were sympathetic to the residents’ concerns, the justices seemed wary of limiting the EPA’s authority in cleaning up Superfund sites.

“The Supreme Court has been cutting back, cutting back, cutting back on citizens' ability to bring meaningful accountability litigation,” said Zygmunt Plater, an environmental law professor at Boston College.

Myers, too, knows the case could set a precedent and have far-reaching consequences. But ultimately, he just wants to let his grandkids roll around in the dirt without increasing their risk of cancer.

“I think a lot of people kind of watch their grandkids,” he said. “My opinion is that we don’t let them do too much digging in the yards. If I catch them, I don’t want them to be digging around in the crap.”

Cover image: This Dec. 13, 2016 photo shows the old Anaconda smelter smokestack in the background behind the community of Opportunity, Mont. (AP Photo/Matt Volz)