Court: Company must pay for toxic waste on tribal land

By Keith Ridle
Associated Press

BOISE, Idaho (AP) — A U.S. appeals court has ruled that a Philadelphia-based agribusiness company that left millions of tons of toxic waste on tribal land in Idaho must pay the tribes nearly $20 million plus $1.5 million annually.

The 9th U.S. Circuit Court of Appeals recently upheld a lower court ruling against FMC Corp. involving a now-shuttered Idaho plant that turned phosphate into fertilizer.

For about 50 years until 2001, FMC operated the fertilizer plant that produced 22 million tons (20 million metric tons) of waste stored on the Shoshone-Bannock Tribes Fort Hall Indian Reservation.

The company contended in one of its arguments that it wasn’t obligated to pay the $1.5 million annual permit fee to the tribes for storing the waste after closing the plant. A judge called that argument “ludicrous.”

The tribes say the money will be used for monitoring and cleanup at the site.

“The waste at FMC is toxic, reactive and presents a risk to our community,” said Kelly Wright, environmental waste manager for the tribes. “We can now work to fully implement our Hazardous Waste Main Act Regulations and develop safety monitoring and notification networks.”

A three-judge panel on the 9th Circuit Court made the ruling. FMC could ask the full 9th Circuit Court to review the lower court decision.

“FMC is disappointed with this outcome and is reviewing the decision and considering its options,” the company said Tuesday in a statement to The Associated Press.

The ruling awards the tribe $19.5 million for unpaid permit fees from 2002 to 2014. FMC must also pay the $1.5 million a year in perpetuity.

The Environmental Protection Agency said it’s not technologically feasible to remove the toxic material from the site, and an attempt at such an
undertaking would cost $4.7 billion.

The EPA is spending $47 million over 30 years to manage the waste in an effort to prevent it from contaminating air and water.

The site also has about 21 tanker rail cars containing phosphorus sludge the company buried rather than clean up, court documents say.

Tribal courts ruled FMC owed the money after the company stopped paying the annual storage fee in 2002. FMC challenged the ruling in federal court.

Key to the case was FMC agreeing, while the plant was still operating, to tribal jurisdiction and the $1.5 million annual permit fee to store the waste.

That agreement with the tribe stemmed from a consent decree with the Environmental Protection Agency, which was otherwise poised to impose fines and giant cleanup fees on the company.

Phosphate mining remains a major business in southeastern Idaho where phosphate ore is turned into fertilizer needed by farmers.

The area contains one of the nation’s most abundant deposits of phosphate, and several other large agribusinesses, including Idaho-based J.R. Simplot Co., have mines in the area.

However, the area also contains more than a dozen Superfund sites, including the FMC site, because of pollution from phosphate mining.