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Opportunity plaintiffs settle ARCO lawsuit after 13 years

Opportunity plaintiffs settle ARCO lawsuit after 13 years

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The lawsuit dragged on for nearly 13 years. It pitted plaintiffs who were residents of Opportunity or Crackerville against the Atlantic Richfield Co. The focus of the David v. Goliath litigation was smelter waste contaminating the rural communities’ soils and threatening residents’ wells.

The 98 contamination-weary residents had filed the suit in April 2008 against ARCO, a subsidiary of BP America. The plaintiffs claimed common law trespass, nuisance and strict liability against ARCO and sought restoration damages to pay for a more thorough cleanup than what was planned by ARCO under a federal Superfund remedy.

The case wound through an impressive array of state and federal courts. The Montana Supreme Court weighed in twice about lower court rulings and the case ultimately reached the U.S. Supreme Court in 2019 before ultimately concluding in a Montana district court.

The civil lawsuit, filed as Gregory Christian, et al. v. Atlantic Richfield Co., ended quietly in March when District Court Judge Katherine Bidegaray dismissed the case. The judge’s order referenced a settlement among the parties but provided no details of that agreement. She wrote that the motion to vacate the case was jointly filed.

Lawyer Mark Kovacich and his firm Odegaard Kovacich Snipes, as well as lawyers from a Bozeman firm, represented the plaintiffs. On Thursday Kovacich said he could not disclose settlement terms because they are confidential.

Asked whether he believed anything had been accomplished by the 13-year-case — which required untold hours of research, writing and argument and produced reams of documents — Kovacich answered in the affirmative.

“There was substantially more investigation of the properties that resulted,” he said, with scrutiny of the contaminants both by experts hired by the plaintiffs and by ARCO.

That additional work ultimately yielded better cleanup, Kovacich said.

And then there was the settlement, he said, reiterating that its terms are confidential.

Opportunity resident Serge Myers, 76, was similarly tight-lipped about the settlement. Myers, who worked at the smelter for about 17 years, was among those who initiated the lawsuit. He has lived in Opportunity since he was 6 years old.

Myers said wryly that he “was a little more spunky” when the case began.

“It’s been 13 years,” he said. “It’s been a long haul. We did the best we could. Our lawyers did the best they could.”

Neither John Davis, a lawyer who helped argue the case for ARCO, nor two ARCO employees familiar with the Anaconda Co. Smelter Site returned phone calls Monday seeking comment on the case.

In March 2017, lawyers from the Bozeman firm of Beck, Amsden & Stalpes, which also represented Opportunity plaintiffs, hosted a community information meeting at the Community Service Center in Anaconda to discuss lead and property contamination in Anaconda.

On Monday, lawyer Justin Stalpes said he could not comment about whether the firm plans to pursue litigation on behalf of clients in Anaconda, saying that commenting would violate client-attorney privilege.

Charlie Coleman, Environmental Protection Agency remedial project manager for the Anaconda Co. Smelter Site, said testing and cleanup of yards in Opportunity, Anaconda and elsewhere continues.

The EPA amended the 1996 Record of Decision for the Community Soils Operable Unit in September 2013 to include a cleanup level for lead in soils and cleanup levels for arsenic and lead in accessible interior dust. Coleman said ARCO had been working with landowners in Opportunity around the time lead cleanup moved forward.

As a result, he said, it’s hard to tell whether the litigation between the plaintiffs and ARCO resulted in a more thorough cleanup because adding lead to the mix required additional work. 

Some property owners in Opportunity have resisted testing and cleanup, he said.

“There are a few hold outs in Opportunity,” Coleman said, but they can still access testing by request.

Meanwhile, in April 2020, U.S. Supreme Court Chief Justice John Roberts wrote the opinion for the nation’s highest court and it wasn’t good news for the residents suing ARCO.

The plaintiffs, many with a view of the long-shuttered Washoe Smelter stack and within proximity to the contaminated Opportunity Ponds, sought a more ambitious cleanup of their properties from past smelting wastes than was envisioned by the Environmental Protection Agency and ARCO.

Roberts, whose opinion erroneously located the “Anaconda Copper Smelter” in Butte, found that federal environmental law required the plaintiffs to seek EPA approval for more cleanup to ensure development of a single EPA-led cleanup effort “rather than tens of thousands of competing individual cases.”

“Yet under the landowners’ interpretation, property owners would be free to dig up arsenic-infected soil and build trenches to redirect lead-contaminated groundwater without even notifying EPA,” Roberts wrote.

Roberts held that the landowners’ proposed restoration plan “includes measures beyond those the agency found necessary to protect human health and the environment.”

Specifically, the landowners proposed a maximum soil contamination level for arsenic of 15 parts per million instead of the 250 parts per million level set by EPA. In addition, the plaintiffs sought to increase the depth of excavation of contaminated soils in residential yards from one foot to two.

Finally, the landowners sought an underground barrier that would have been 8,000 feet long, 15 feet deep and 3 feet wide to capture and treat groundwater.

Montana law requires that landowners who receive restoration damages to demonstrate that any reward will actually be used for restoration.

The plaintiffs estimated the cleanup to their proposed standards would cost ARCO $50 million to $58 million.

Roberts’ majority opinion found fault with a previous ruling by the Montana Supreme Court that the plaintiffs were not “potentially responsible parties” who would require an OK from EPA to pursue more comprehensive remediation.

He said that landowners whose properties are contaminated are considered potentially responsible parties under Superfund law even if they are innocent of causing the pollution.

ARCO’s lawyers also argued against the Montana Supreme Court’s conclusions: “The state court’s holding throws remediation efforts at Anaconda and other massive sites into chaos and opens the door for thousands of private individuals to select and impose their own remedies at CERCLA sites at a potential cost of many millions of dollars per site.”

CERCLA is the Comprehensive Environmental Response, Compensation and Liability Act of 1980, the law commonly known as Superfund.

Copper King Marcus Daly and the Anaconda Copper Mining Co. began smelting copper ore from Butte in the 1880s near what became Anaconda. Around 1902, ore processing and smelting operations began at the Washoe Smelter. Its 585-foot tall stack was designed to disperse smoke from the smelter to try to reduce pollution from stack emissions.

A Montana Supreme Court narrative about the case reported that the Anaconda Co. established Opportunity as a rural housing community for smelter workers “to attract stable, loyal and reliable employees and to quiet concerns about smelter emissions by showcasing a bucolic community situated directly beneath the plume.”

In 1977, ARCO purchased the Anaconda Co. and inherited vast lands polluted with arsenic, lead, copper, cadmium and zinc from ore processing operations and stack emissions. Later, under CERCLA, ARCO became retroactively liable for that contamination.

In September 1983, the EPA placed the Anaconda Co. Smelter site on the agency’s Superfund National Priorities List. The site stretches across 300 square miles of residential, commercial, recreational and agricultural lands.

Even though ARCO closed the smelter in 1980, the facility’s pollution lingered far and wide. Testing and cleanup continue within the sprawling Anaconda Co. Smelter site. The EPA has said it hopes to complete remedial construction activities by December 2025. 

One of the two related rulings by the Montana Supreme Court quoted plaintiff Robert Phillips about his childhood in Opportunity.

“We grew up in arsenic,” Phillips said.  

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