Shoshone-Bannock Tribes win regulatory case on hazardous waste storage

Site of Superfund site, a former phoshphate plant on the homelands of the Shosone-Bannock Tribes. (Photo via Shoshone-Bannock Tribes)

9th US Court of Appeals sides with tribal court, tribal government in regulatory battle with FMC Corporation

The attorney for the food and chemical conglomerate FMC Corporation told the 9th US Circuit Court of Appeals that it should no longer have to pay the Shoshone-Bannock Tribes an annual fee for storing hazardous waste on the reservation.

FMC attorney Gregory G. Garre said that the tribe’s demand could be in perpetuity because the waste from a now closed phosphate processing plant is now a Superfund site and a safe cleanup could take decades. Or forever.

FMC had paid the $1.5 million fee from 1998 to 2001 (after reaching an agreement with the tribe). But the company quit doing so in December 2001 when the plant stopped its phosphorus operations.

So the tribes sued in tribal court. Eventually the case reached a tribal appeals court and that court found the money was owed because "FMC’s creation and storage of this hazardous waste on the Reservation creates “an ongoing and extensive threat to human health” and threatens the “welfare and cultural practices of the Tribes and their members.”

Phosphorus is toxic when ingested, inhaled or absorbed. It ignites when exposed to air. Most of the waste under the Superfund agreement was buried. The tribal appeals court said “tanker rail cars buried at the site contained ‘from 200 to 2,000 tons of elemental phosphorus sludge, 10–25% of which remained in each of the tankers at the time they were buried” because FMC concluded cleaning them was “dangerous” to Employees.”

In other words the site was too dangerous to clean up. (A position that the EPA essentially agreed with in its handling of the Superfund cleanup.)

FMC_5
Shoshone-Bannock Tribes

The site is near the Portneuf River and Fort Hall Bottoms where groundwater contamination threatens the “gathering and subsistence fishing, hunting and gathering by tribal members at the River, as well as the Tribes’ ability to use this important resource as it has been historically used for cultural activities.”

The three-judge panel for the federal appeals court agreed in a decision released Nov. 15, 2019, It said that the tribes have jurisdiction over the company. “We hold that the judgment of the Tribal Court of Appeals is enforceable under principles of comity.”

The court held that the tribal court had regulatory and adjudicatory jurisdiction over the Shoshone-Bannock Tribes’ suit against FMC under two “Montana exceptions" involving tribal authority over non-Indians. The appeals court said the tribe has inherent power when the actions of a company are a threat to the tribes economic security or the health and welfare of citizens.

“Today is a great day for the Shoshone-Bannock Tribes,” said Tribal Chairman Ladd Edmo in a news release. “We are very pleased with the 9th Circuit of Appeals ruling. I would like to commend our former Tribal leaders, our Land Use Policy Commissioners, technical staff and legal team for all the years of hard work.”

See related: Climate change is a threat to 60 percent of Superfund sites.

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The tribes said that FMC must now pay the interest for past storage fees and an annual fee every year thereafter as long as the hazardous waste is stored within the reservation. The money under tribal law will be used for environmental monitoring, compliance, and cleanup.

FMC’s storage of millions of tons of hazardous waste on the Reservation “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, the news release said.

“The waste at FMC is toxic, reactive and presents a risk to our community. We are thankful the Ninth Circuit Court of Appeals recognizes this risk and recognizes our jurisdiction,” said the tribes’ environmental waste manager, Kelly Wright, in the news release. “ We can now work to fully implement our Hazardous Waste Main Act Regulations and develop safety monitoring and notification networks.”

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Mark Trahant is editor of Indian Country Today. He is a member of the Shoshone-Bannock Tribes. Follow him on Twitter - @TrahantReports

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