Toxic Waste Case at SCOTUS Affects Big Business, Small Town

sort of a little mini holiday within legal circles. It's, of course, the day the Supreme Court of the United States of America begins its latest term, and today we're going to do a deep, deep, deep dive into one of the cases the Court's nine justices we'll hear this year. That case is Atlantic Richfield the Christian and it has the potential to completely reshape the way we clean up polluted industrial sites. The central question in the case is who gets to decide when one of these sites is,

for lack of a better word, clean. Does the EPA have the final word on this or can states force cleanups to go even further and than what federal requires. This case originates in Anaconda, Montana, a town of less than ten thousand people in the southwestern part of the state and the one time home to a giant metal smelter Bloomberg Environment Sylvia Kargnen went there recently and spoke to some of the town's residents about their case and

their long running battle to clean up their town. Sylvia says, to understand why the Supreme Court is hearing this case, now, you have to go back nearly one hundred years. We

should probably start the beginning. So the whole story of Anaconda, Montana is pretty similar to the story of lots of brand new towns in the late eighteen hundreds, the mining industry was growing, and big companies built smelters to make the mind or into something profitable, and towns started to grow as the miners and the smelter workers moved in. And in Anaconda's case, the ore was copper and the mining was in Butte, which is about twenty five miles away.

And how many people were living there back in the you know, let's say many more people than live there. Now we'll get to why that is in a little bit. But so this town was created, literally created out of nothing to serve the mining industry, and it lasted like that for a long time. And you actually spoke with Carol Davidson and her husband, Jim, and they talked about what the town was like and the role that the mining company had in the town. But they ran everything.

I mean, they took care of everything. They took care of the parks, They had the water company, They let the city sewer run into the ponds. When they needed to put an addition on the hospital, they built the wing to the hospital and then donated to the Sisters of Charity. If the church needed land to build a church, they gave them the land for the church. They helped subsidize the transportation system. You know, you had to pay five cents on the bus, but they paid for the

buses for the So this is a factory town. Like I'm envisioning this as like there's one employer and that employer controls the entire local politics and you know of that municipality. Yes, and Carol and Jim both worked for the Anaconda company, Right, So what was were some of the downsides to that from an environmental standpoint. It's probably hard to list them all, but that's one of the things that you saw is that this town is suffering

from a lot of environmental problems that date back decades. Right, So those environmental consequences started coming up right around the town the time that the smelter started operating, So so like a hundred years ago, this was just about them. Yeah, But back when the smelter started, people sort of saw the pollution, the air pollution, the really dark dust that was coming down onto the sides of their houses and the roofs. They kind of saw that as a sign

of a successful industrial town. So for a while people just kind of lived with it. But there were some farmers ranchers who were starting to see their cows and their sheep just keel over in the fields, and that's sort of when the lawsuits started. Yeah, you and you also talked to Rose Nyman, who moved Anacondon when she was five, and she talked about what it was like back then and just sort of the attitude of the people who lived there toward this big smelter. Oh, we

were kids. We were raised by a generation of women who would say things like I just scrubbed the floor, get out here, go out and play, or go up on the hill and play. And we would go up on hill and play, go into the hot stuff. As I said, though as residents, I would doubt there were many who realized the danger and what was the danger, Like what was coming out of the smelter that they were exposed to. Mostly it was lead and arsenate coming

out of the smelter. The smelter itself did contain a lot of the heavy metal particles because it was so tall. It's about the size of the Washington Monument. So those particles would sort of travel back down the stack. But since it was so tall, all of those heavy metals got distributed over a very wide area. Oh, I said, So it wasn't It wasn't just this town or the nearby towns, because this smelter was as tall as the Washington Monument, as every said, about the same size. Yeah,

that was tall. It was a really wide area where you had arsenic and lead. I mean, that's stuff that can get into the soil and just stay there, and that's really really bad stuff. I mean Rose talked about you know how this affected you when you were exposed to this kind of stuff, And sometimes it had a yellowish color and it tasted and smelled like sulfur, that's the best way I can describe it. It created a lot of phlegm in your throat and none of us

had any idea not deadly it was. So when did government officials first start realizing how deadly this stuff was and start taking action to correct it or try to correct it. Well, the EPA didn't exist until about nineteen seventy, so it was a long time before there was real federal action to try to clean up this stuff. But there was something going on at the state level right right in the nineteen seventies, around the time that the EPA started, it was all the rage to amend your

state constitution and include environmental rights. And this was around the same time that Rachel Carson Silent Spring came out where she did mention the dangers of DDT and heavy metals in the air, and concerned citizens started putting pressure on Congress. And that's also where we got the Clean Air Act I was in nineteen sixty three, and a

Clean Water Act in nineteen seventy two. So along with that, there were some states and those include Illinois, Pennsylvania, Massachusetts, and eventually Montana, who thought that maybe the federal laws didn't go far enough. They wanted to add environmental rights protections to their constitutions. And it seems, you know, I wasn't alive back then. I'm actually quite young. Despite how

it may sound. No, I wasn't alive back then. But I mean from everything I've read, it sounds like this was like a revolution in thought or in like legal thought, where it's like people were like, hey, maybe you know, economic activity isn't all, isn't worth the sort of side effects and the side effects being led arsenic, you know, you name it. And people started doing act laws that said companies can't do whatever they want, there have to be laws about what they can admit into the air.

They passed a pretty aggressive clean up statute in the Constitution that they rewrote. What did it say and what did it force companies to do? In Montana? So the delegates wanted the strongest possible provision that not only prohibited things like degradation, but also said that each citizen and corporations had a duty to improve the environment. So the language I think ended up including is the state and each person shall maintain and improve a clean and healthful

environment in Montana for present and future generations. And that was adopted in nineteen seventy two, and then eight years later you had the federal super Fund statutes. Which essentially it does the same thing, but on the federal level. And I get the sense this site, this Antacona site, is one of the super Fun sites where it's a site that's contaminated and the company is working with the EPA to help clean it up. So Anacon is a classic example of a super fund set. You've got years

and years and years of industrial waste. People are worried that they're living on top of it or living near it, and it's not safe for them. EPA comes in and tries to deal with that risk, and yet there are still a lot of problems. I think Mary kay Craig sort of put it best. She's in an environmental justice activist in Montana, and here's what she had to say nineteen seventy two Montana concent says that everyone, everyone has

a right to a clean and healthful environment. And yet we've been thirty seven years and super fun without getting that. So what went wrong? You have this constitutional amendment in Montana, you have this super fun law. Seems like that is meant it's designed for places like this where you have industrial pollution over the course of a long period of time, and yet there are still these problems. Why hasn't this been fixed between the state laws and the federal laws.

Montana should have this great pristine environment and everything just looks, you know, looks like rainbows and unicorns. But that has not been the case, in part because there hasn't been a whole lot of litigation surrounding that part of the revised constitution. So there are not a whole lot of cases that are setting a precedent for this kind of thing. And so as we'll talk about cases that are coming up now are sort of trying that provision for the

first time. I see. So it's not that the the Constitution isn't being enforced, it's just that there's been no test cases. The courts have never really ruled on, you know, whether the super fun law applies or the state law applies, or you know which maybe both, maybe neither. It sounds like that's about to change, though. We're about to get a big case at the US Supreme Court here in DC that gets at this exact question. So what's that

all about? So just east of Anaconda, still within the perimeter of this big super fun site, is a smaller town named Opportunity, and the Anaconda copper mining company created this place too. They wanted to give their workers a place to kind of settle down, raise some cows and chickens, maybe have a little garden with tomatoes and an apple tree, things like that. But there's not that much that's growing there now. Is that as a result of the pollution.

That's what the residents there think. So Sean Hulhan is one of those concerned residents. He's got an apple tree in his backyard and he's sort of wary of eating any apples off of it because he thinks they might be contaminated with the letter arsenic coming all away from that smelter Anaconda. Yeah, let's hear from him. So, I was born and raised here. Didn't really think about it. When they talked super find Out said, okay, the Berkeley pit, the smelter site, you know the red sands where the

golf course sits. I never really thought, you know, about opportunity itself. And it was when they started taking samples that I started to get, you know, some some concern. That's the thing in the back of my mind really weighs heavy. Is you know, I got a dog that's got tumors, honors had cancers toe removed. What am I doing, you know with my son here? And this is supposed to be the site that was not polluted, and yet you have you still have these big problems here, right.

So the company was saying, get away from the smelter life settled down out here, they still had the same kinds of issues in their soil. The EPAD has gone in and taken out a top layer of soil from some of these yards and replaced it with sod or soil that is clean, but people like Sean are still concerned that maybe enough of the contaminated soil wasn't removed, and so that it sounds like is the crux of this case, which is that the EPA is determined you need to clean up this site, you know, an a

cond of company, an a kind of mining company. You need to clean up this site to x degree. And the people who live there saying, no, we think they should have cleaned it up to ten x degree. To use some you know, algebra terms there, and you know, no one's really sure how that works. I mean, according to super fun law, it sounds like what the EPA decides,

that's the final word. That's the end of it. But then we also have this clause in the Montana Constitution that says, no, you need to clean this up to the point where it is actually clean. And which law supersedes here. That's a big question, and that doesn't just come up in Montana. It also comes up at superfund

sites around the country. Usually residents and the EPA have very different definitions of what clean is uh and that creates this constant tension between the federal government and the public and the companies that are cleaning this stuff up. So Sean and almost one hundred other landowners in Opportunities suit Atlantic Richfield, which is successor to the Anacona Copper Mining Company, so now it's Atlantic Ridgefield. They filed that lawsuit back in two thousand and eight. They've been waiting

a long time for a resolution to this. So let's talk about sort of I guess let's finish up by talking about the stakes for both sides here, for Atlantic Ridgefield and then for all the companies that are in the same position as them. The stakes are. They really like superfund law because it puts a cap on how much liability they can have. At least they know, okay, I have this much liability, I have to pay for

this level of cleanup. But I know that if they lose this case, that number is like could be infinitely large, right, I mean, they have no idea how much they'll have to spend to clean up sites. Right, So traditionally residents are not going around filing lawsuits challenging super fun clean up decisions. So if that if this case opens up that avenue, there's all kinds of additional litigation that could happen at these kinds of sites, and companies aren't necessarily

ready to be open to that kind of liability. Yeah. Meanwhile, let's talk about the stakes for Opportunity. You know, this is a small community in Montana. It sounds like basically, you talk to Donna Shuey, who lives there, you know they're hoping to maybe kickstart their tourism industry. You know, there's a lot of towns nearby that are very similar to Anaconda that have you know, great tourism industries Anaconda, and I guess Opportunity itself doesn't really And Donna talks

about why that might be. We have this beautiful valley that if you drive thirty miles that way and thirty miles north, south, east or west. You're in some of the most beautiful areas that are comp to like taho To or cood Lane To, all these beautiful places that have stable economies that they have stable tax bases because they were on a superfund site. So you know, for us here and on the conduct, if that smelter wasn't here,

what would we have been. Is it an exaggeration to say that the outcome of this case could determine the future of Opportunity. I think if the landowners are getting what they are asking for, they could finally get some peace of mind. I mean, they've been living with this stuff for so many years, not knowing if it's really clean. Some people have moved out because of it, so they

would finally know, you know, what the deal is there? Yeah, I mean I have to imagine it's kind of hard to like sell your house or to encourage someone to invest in a business in your town if the soil is covered in arsenic and lead and who knows what else and you can't get anyone to clean it up. When I was driving around an Opportunity, I saw a sign posted on a stop sign and it said that there was a house for sale thirty nine thousand dollars cash.

I mean, can you imagine like you would need to, you would have to want to really get out of there. That was Bloomberg Environment Sylvia Kerragan speaking about the Supreme Court case Atlantic Richfield Fee Christian the case of schedule

for oral argument on December third. You can find more of our reporting on cleanup and super fund issues at our website news dot Bloomberg Environment dot com, and if you want to chat with us on social media, use the hashtag parts per B. That hashtag, once again is parts per B. Today's episode of Parts Rebellion was produced by myself along with Marsa Hornet Jessica Coombs. Nicholas Anzelota is our audio engineer. The music for this episode is a message by Jazar. It was used under a Creative

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