Montana Residents Ask Supreme Court To Allow Cleanup Beyond Superfund Requirements Montana property owners are suing BP to clean up arsenic pollution left over from mining. The case is now before the U.S. Supreme Court, and businesses worry it could open them up to huge new costs.

Montana Residents Ask Supreme Court To Allow Cleanup Beyond Superfund Requirements

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Close to 100 Montanans are taking on one of the largest corporations in the world today at the U.S. Supreme Court. Residents of two small towns say Arco, the Atlantic Richfield Company owned by BP, needs to go beyond what the law to clean up toxic waste from a century of mining. Here's Montana Public Radio's Nick Mott.

NICK MOTT, BYLINE: Fewer than 500 people live in Opportunity and Crackerville. From behind the wheel on a gravel road, the landscape here is rolling hills and jagged peaks.

SHAUN HOOLAHAN: This is the house, right over here, that I grew up in.

MOTT: Shaun Hoolahan's house is not far from the valley's defining feature - a massive gray smokestack from a historic copper smelter perched on a tongue of land protruding from the mountains outside of town.

HOOLAHAN: It's - what? - 585 feet high. You can put the Washington Monument inside of it. It's that big.

MOTT: For almost a century, that smokestack spit out up to 24 tons of arsenic per day over an area the size of New York City. A 1996 Superfund agreement required Arco to clean it up. Superfund is the federal program for dealing with toxic waste. Arco's $470 million cleanup included scraping away up to 18 inches of soil from the yards of about two dozen homes here, including Hoolahan's. It put down a barrier and then covered it with fresh earth. That wasn't good enough for Hoolahan and close to a hundred other locals, so they sued Arco in 2008.

FRANK COONEY: If somebody dumps something on your property, A, it's a nuisance. And B, it devalues your property. And C, it's not your responsibility to pick up their mess.

MOTT: Residents say there's still too much arsenic in the soil and want Arco to go beyond what the Superfund agreement requires. That would cost more than $50 million.

F COONEY: In Montana, we have a constitutional right to a clean and healthy environment.

MOTT: Frank and Vickie Cooney, also parties to the lawsuit, live just down the street from Hoolahan. Their yard was cleaned up, too.

F COONEY: I noticed some strange things started happening because - well, I got cancer in 2014 the first time - was prostate cancer. Then a year later, I come down with a brain tumor. And then earlier this year, I come down with a very rare bone cancer.

MOTT: Long-term exposure to arsenic can cause cancer. The Cooneys recognize they can never know for sure if it caused Frank's ailments. But...

VICKIE COONEY: It just makes you wonder.

MOTT: Now they only drink bottled water. They say the stigma of the cleanup destroyed the value of their home. And they're even more worried about their children and grandkids.

V COONEY: They were out in that dirt, you know, on four-wheelers and on their bikes. And so...

F COONEY: On the swingset that we have out there (ph).

V COONEY: So what did it do to them?

MOTT: In 2017, Montana's Supreme Court ruled in favor of Hoolahan, the Cooneys and other locals. Arco, backed by the EPA, argued that federal Superfund law trumps state claims and petitioned the U.S. Supreme Court. They argued that the cleanup deal was a negotiated settlement and that locals had plenty of chances to influence its requirements. Suing to go beyond Superfund, Arco says, is, quote, "the very definition of madness", unquote, and could result in chaos in Superfund sites across the country. Arco and the EPA declined comment for this story. But Peter Tolsdorf with the National Association of Manufacturers, which is backing Arco, says...

PETER TOLSDORF: If this decision stands, it will put a question in the minds of every entity that is involved in any way with the Superfund site - can I rely on the process that's in place with EPA to remediate the site?

MOTT: Tolsdorf says Superfund needs certainty to be effective and that the locals' plan would interfere with the cleanup itself and make things worse by stirring up contaminated soil.

Backing Opportunity residents are environmental organizations, property rights groups and a coalition of 14 states. They say EPA standards are a starting point, not an end, to the cleanup. The states - including California, Washington and New York but not Montana - say it's a case about federalism, and Superfund was designed to protect states' rights. If the court rules in favor of Opportunity residents, the case will return to Montana for a jury trial.

For NPR News, I'm Nick Mott in Opportunity, Mont.


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