FMC Corp's Hazardous Waste Storage: A human, environmental, and legal story
This week on Sustainable Idaho, Rachel and Scott are tackling a new topic, the FMC Corporation's storage of hazardous waste on the Shoshone-Bannock Tribal Reservation. Three miles northwest of Pocatello is the site of FMC’s demolished elemental phosphorus facility. While the facility may be gone, what’s left behind is a huge volume of hazardous chemical waste. This local story is rich in environmental, social, and economic considerations, and the legal battles surrounding the hazardous waste storage have been deliberated over by the US Supreme Court.
This week on Sustainable Idaho, we are covering a new topic. For the next few weeks, we’ll be exploring a fascinating local topic, which is loaded with environmental, economic, and social considerations, and has even made its way to the U.S Supreme Court.
Of course, we’re talking about the storage of hazardous wastes from FMC’s phosphorous plant operations on the Shoshone-Bannock Tribes Fort Hall Reservation. This is a complex story, but to break it down, we are first going to present a factual history of the story, before hearing from the involved government agencies and stakeholders.
As many of our listeners may already know, FMC is an agricultural science company, who opened a phosphorous plant on fee land within the Fort Hall Reservation in 1949. The site is about 3 miles northwest of Pocatello. From its opening in 1949, the FMC plant was the world’s largest elemental phosphorus producing facility. During an average year of its operation, 1,750,000 tons of raw shale and silica were heated in furnaces to temperatures up to 8000 degrees Fahrenheit, producing 250 million pounds of elemental phosphorus. Then, the elemental phosphorus was processed with other chemicals to make high-purity, food-grade phosphoric acid, which is a common additive in soft drinks and food products. But all of this seems above board – so what’s all the fuss about?
Well, FMC’s operations created lots of hazardous chemical waste. In fact, over 20 million tons of hazardous waste is still contained in waste storage ponds on the Reservation. And that’s not all, other hazardous materials are buried in approximately 25 railroad tanker cars at the site, and some waste is in uncontained in loose soil and has leached into the groundwater. The waste is radioactive, carcinogenic, and poisonous.
This is clearly an environmental-health concern. But this story is much more complex and multi-faceted.
In 1990, the U.S. Environmental Protection Agency or the EPA, declared FMC’s plant and storage area, a Superfund Site. A Superfund Site is a legally recognized polluted site, which requires a long-term response to clean up hazardous material contaminations. Then, just seven years later in 1997, the EPA charged FMC with violating the Resource Conservation and Recovery Act, the law that regulates hazardous waste. Subsequently, the EPA ruled that FMC must spend a total of approximately $170 million -- including the largest civil penalty ever obtained at that time under the Resource Conservation and Recovery Act of $11.8 million, to settle charges that it repeatedly violated the hazardous waste law. Additionally, as a result of violating the Resource Conservation and Recovery Act, the EPA enforced a Consent Decree, which required FMC to obtain permits from the Tribes for the storage of their hazardous waste. FMC and the Tribes negotiated an agreement under which FMC agreed to pay $2.5 million on June 1, 1998, and $1.5 million annually to continue the storing the hazardous waste on the Reservation.
However, this annual permitting agreement did not last long. FMC paid $2.5 million on June 1, 1998, and paid the annual use permit fee from 1998 to 2001, but refused to pay the fee in 2002, after ceasing active plant operations. This decision was refuted by the Tribes because FMC were continuing to store hazardous waste on the Reservation.
What ensued was a multi-decadal legal struggle between the tribes and the FMC, centering on regulatory jurisdiction, and eventually leading to a United States Supreme Court decision.
But before we explore the fascinating legal battle, we think it’s important to first understand what type of hazardous waste we are actually talking about – and what risks it poses to both the people and the environment. So, to do this, we reached out to the Environmental Protection Agency (EPA), who are been heavily involved in the ongoing management and monitoring of the site. We started by asking the EPA – what actually is the hazardous waste stored at the site? Although the EPA declined our request for interview, they kindly provided written responses to our questions.
The EPA writes “During its period of active operations, the FMC facility generated several waste streams that met the criteria for being designated as hazardous wastes under the Resource Conservation and Recovery Act. Most of the waste contains some form of elemental phosphorous or phosphorous byproducts. Elemental phosphorus is used in the manufacture of munitions, pyrotechnics, explosives, smoke bombs, inartificial fertilizers, and rodenticides. Phosphorus-containing wastes can react in the presence of water and/or oxygen, generating phosphine gas. Phosphine is an odorless, colorless gas that is lethal at extremely low levels.”
Now that seems pretty scary! We continued by asking the EPA, how is the potentially lethal phosphine gas managed?
The EPA specified that, “In 2006, excess phosphine gas was detected being emitted by Pond 16S. The EPA Superfund program issued a Time Critical Removal Action Unilateral Administrative Order, which required FMC to design, construct and operate a gas extraction and treatment system for the phosphine gas. Since then, it has been necessary to extract and treat the phosphine gas, which is being generated by waste in some of the Ponds and is posing unacceptable risk to human health and the environment.”
Finally, we asked the EPA about the ongoing management and monitoring at the site?
The EPA stated “The elemental phosphorus manufacturing plant was dismantled and no longer exists. The Ponds, which contained ignitable and reactive waste - were closed in accordance with EPA-approved closure plans. While most of the facility has been demolished, the Ponds are actually. The Ponds were capped, and are considered closed regulated units with waste remaining in place, which requires ongoing monitoring according to post-closure regulatory requirements.”
*A full record of the EPA’s responses to KISU’s questions are available at the bottom of the article.
That was a lot of technical information! But, to summarize, whilst the FMC site is now closed there is a huge volume of hazardous chemical waste stored at the site. Remediation actions have been taken, including the engineered capping of the waste ponds, to reduce the environmental and human health risk present. Yet, concerns still exist around both the leeching of contamination into the groundwater, and the reaction of the elemental phosphate with the air, which is causing the creation of lethal phosphine gas.
We hope this short introduction to this complex topic has been interesting and insightful! On Sustainable Idaho next week, we will continue with this story by investigating the fascinating legal battles between the FMC Corporation and the Tribes. Join us for Sustainable Idaho every Tuesday morning at 7,35.
Environmental Protection Agency Responses to KISU Questions.
1. Please can you briefly describe the history of the site? When did FMC begin operations on the site and how long has hazardous waste been stored at the site?
The former FMC Corporation Elemental Phosphorous Plant Site is located in Southeastern Idaho, mostly within the boundaries of the Fort Hall Reservation, approximately 3 miles northwest of Pocatello, Idaho. FMC operated a facility on the site that was used to manufacture elemental phosphorus from phosphate ore from the late 1940s until December 2001. The manufacturing plant was dismantled and no longer exists.
Various lined and unlined surface impoundments, including RCRA Ponds 8S, 8E, 9E, 11S, 12S, 13S, 14S, 15S, 16S, 17 and 18A, were used to manage wastewater containing elemental phosphorus and other phosphorus compounds. The RCRA Ponds are surrounded by the FMC Operable Unit (OU) of the Eastern Michaud Flats (EMF) Superfund Site. The Ponds, which contained ignitable and reactive waste - considered by the Resource Conservation and Recovery Act (RCRA) as hazardous waste - were closed in accordance with EPA-approved closure plans. While most of the facility has been demolished, the RCRA Ponds are actually considered closed regulated units with waste remaining in place, which requires ongoing monitoring according to post-closure regulatory requirements. The RCRA Ponds were capped by one of two types of cover systems following the removal of water in accordance with the EPA approved closure plans, the RCRA engineered cap or the RCRA double cap, depending on the type of pond construction. The rest of the FMC facility is within the FMC OU of the EMF Superfund site for which an interim remedy was selected in 2012. A Unilateral Administrative Order (UAO) issued to FMC by EPA (in 2013) governs remedial design and remedial action (RD/RA) of the interim remedy. These responses focus on the RCRA Ponds at the Site. In 2006, excess phosphine gas was detected being emitted by RCRA Pond 16S. The EPA Superfund program issued a Time Critical Removal Action Unilateral Administrative Order (UAO) under CERCLA Section 106(a) which required FMC to design, construct and operate a gas extraction and treatment system for the phosphine gas. Upon completion of that work and termination of the 2006 UAO, phosphine gas concentrations at unsafe levels were detected at other RCRA Ponds. A second UAO was issued in 2010. The 2010 UAO requirements include for FMC to: (1) design, construct and operate a phosphine gas extraction and treatment system as necessary at the Ponds to protect human health and the environment, and (2) develop and implement a plan approved by EPA to monitor the air for releases at the RCRA Ponds and at the facility boundary. The 2010 UAO remains in effect.
2. What is the ‘hazardous waste’ in question? What is meant by hazardous? Does it pose a risk to wildlife or people - or both?
Elemental phosphorus is used in the manufacture of munitions, pyrotechnics, explosives, smoke bombs, inartificial fertilizers, and rodenticides. During its period of active operations, the FMC facility generated several waste streams that met criteria for being designated as RCRA hazardous wastes, with most containing some form of elemental phosphorous or phosphorous byproducts. At the end of FMC operations, the RCRA Ponds were closed as landfills and phosphorus-containing wastes were left in place.
Phosphorus-containing wastes can react in the presence of water and/or oxygen, generating phosphine gas. Phosphine (PH3) is an odorless, colorless gas that is lethal at extremely low levels. Since 2006, it has been necessary to extract and treat phosphine gas being generated by waste in some of the Ponds at levels posing unacceptable risk to human health and the environment. Phosphine is currently being monitored, extracted, and treated under EPA’s 2010 UAO with FMC, to prevent releases to the atmosphere at concentrations above human health exposure limits.
3. Historically, how was the hazardous waste at the site managed? Currently, how is hazardous waste at the site managed?
For historical information regarding how waste was managed at the site, we suggest you refer to the 1998 Consent Decree (https://www.epa.gov/sites/production/files/2017-12/documents/rcra-ca-fmc-pocatello-consent-decree-1998.pdf) and Complaint (https://www.epa.gov/sites/production/files/2017-12/documents/rcra-ca-fmc-pocatello-complaint-1998.pdf ) related to EPA’s RCRA enforcement action against FMC for more detailed plant operation and regulatory history. For how wastes are being managed now, please refer to answers 1 & 2 above.
4. During the appeal to the United States Court of Appeals for the Ninth Circuit, an EPA official testified that FMC failed to adequately maintain the hazardous sites. The former EPA official testified that FMC did not properly monitor the waste ponds and had not implemented a warning system. Is the EPA continuing to monitor the site and have these management problems been addressed?
The “former EPA official” whose testimony before a Tribal court was referenced in the Ninth Circuit opinion, Mr. David Reisman, was no longer working for EPA at the time of his testimony, and we understand Mr. Reisman was testifying on behalf of the Tribe as a consulting expert.
EPA oversees the long-term maintenance and monitoring of the RCRA pond wastes that FMC is obligated to perform pursuant to the 2010 UAO and post-closure requirements. FMC reports regularly on its phosphine monitoring, extraction, and treatment of phosphine from the RCRA Ponds.
5. Would it be possible to ‘clean up’ the sites? And if so, what would be the estimated cost of an undertaking? Would any clean up actions be supervised by the EPA?
EPA believes it has struck the right balance—one that protects people, wildlife and the surrounding ecosystem, even though it leaves waste in place in the RCRA Ponds and requires continued monitoring and management. RCRA regulations allow for leaving hazardous waste in place at the time of closure as long as it is monitored and will not pose unacceptable risk to people and the environment. As discussed above, EPA has used other legal authorities to address imminent and substantial endangerments that arose subsequent to closure to address unanticipated risks posed by the generation of phosphine gases at the RCRA Ponds.
FMC proposed closing the RCRA Ponds as landfills (which the RCRA statute allows) and EPA Region 10, after consultation with the Tribe, approved FMC’s plans. RCRA Ponds are currently regulated as landfills in accordance with the facility’s approved RCRA closure and post-closure plans. EPA will oversee the long-term maintenance of the containment systems, and the monitoring of their effectiveness until such time as it is appropriate to terminate the post closure care period.