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FMC Corp's Hazardous Waste Storage: A human, environmental, and legal story. Part 2

Attorney Mr. Bill Bacon, lead General Counsel to the Shoshone-Bannock Tribes

This week on Sustainable Idaho, Scott and Rachel continue their exploration of the FMC Corporation’s storage of hazardous waste on the Shoshone-Bannock Tribal Reservation. This local issue is not only a concerning environmental-health matter, but also encompasses a complex legal battle, which has made its way all the way to the U.S Supreme Court.

Last week on Sustainable Idaho, we began our exploration of the FMC Corporation’s storage of hazardous waste on the Shoshone-Bannock Tribal Reservation.

We learned that FMC, which is an agricultural science company, opened a phosphorous plant on fee land within the Fort Hall Reservation in 1949 (The FMC site is part of the larger Eastern Michaud Flats Superfund site established in 1990.   The other half is the still operating  JR Simplot Don Plant site.) The plant, which has since been demolished, is approximately three miles northwest of Pocatello, and was the world’s largest elemental phosphorus producing facility for most of its operational life. 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.

However, FMC’s plant operation created a lot of hazardous chemical waste. In fact, over 20 million tons of hazardous waste are still contained in waste storage ponds. The ponds, which are the size of Olympic swimming pools, remain on the Reservation and have engineered caps to remediate the risk of chemical leaks. Speaking to the Environmental Protection Agency (EPA), we learned that most of the waste contains some form of elemental phosphorous or phosphorous byproducts. Troublingly, elemental phosphorus is used in the manufacture of munitions, pyrotechnics, explosives and smoke bombs! The EPA continued to explain that phosphorus-containing wastes can react in the presence of water and oxygen, generating phosphine gas. The EPA warned that phosphine is an odorless, colorless gas that is lethal at extremely low levels.

Now that seems pretty scary! So, we continued by asking the EPA, how is the potentially lethal phosphine gas managed?

The EPA detailed 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.”

Also, we asked the EPA about the ongoing management and monitoring at the site?

The EPA specified that “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 considered closed regulated units with waste remaining in place, which requires ongoing monitoring according to post-closure regulatory requirements."

Phew, you’re finally all caught up with last week’s episode! So what’s new this week? Well, we’re exploring the second aspect of this story, the legal aspect. We understand that legal jargon and technical information might not be the most enthralling read – but bear with us – because we promise this local case is fascinating and sets a legal precedent for Tribal regulatory jurisdiction over non-Indians across the entire United States. At the heart of the story is the FMC Corporation versus the Shoshone Bannock Tribes.

In 1997, the EPA ruled that the FMC had broken the Resource Conservation and Recovery Act, for the improper management of their hazardous chemical waste. As a result, the EPA ordered the FMC to obtain permits from the Tribes to be allowed to continue to store their hazardous waste. FMC and the Tribes negotiated an agreement where FMC had to pay $2.5 million on June 1, 1998, and $1.5 million annually to continue the storing the hazardous waste on the Reservation.

Yet, this annual permitting agreement did not last long. FMC made the initial payment of $2.5 million on June 1, 1998, and then paid the annual use permit fee from 1998 to 2001. In 2002, the FMC stopped active plant operations and decided they no longer needed to pay the annual fee. But, the Tribes held a very different interpretation of their agreement! – They believed that FMC were required to pay the fee as long as the hazardous waste remained on reservation land! And so the stage was set!

If you were to read the legal agreement between FMC and the Tribes, you may at first glance assume that FMC had no leg to stand on; the legal agreement clearly states that FMC is obligated to pay the permitting fee, as long as the hazardous waste continues to be stored on the reservation. However, FMC’s case was not focused on the permitting agreement, but rather centered jurisdictional boundaries, and questioned the authority of the tribes to exercise civil regulatory jurisdiction over the non-Indian corporation.   

So, the real question being asked by the FMC is, does the Shoshone-Bannock have the authority to force them to honor the agreement?

To begin to answer this question, and investigate why the Tribes believed the FMC was required to pay the annual use fee, we spoke to lead General Counsel to the Shoshone-Bannock Tribes, Mr. Bill Bacon.

Mr. Bacon explained that as a general rule, Tribes do not have jurisdiction over non-Indians even on Reservation land. However, Mr. Bacon explained that there are two exceptions to this general rule, (1) if a mutual consensual agreement exists or (2) if the actions of the non-Indians threatens the health, welfare or political integrity of the Tribes.

These two exceptions are central to this case! They originate from the 1981 Supreme Court case, Montana vs United States, and are therefore referred to as the Montana exceptions. The case centered on the jurisdiction over the riverbeds in the Blackfeet Reservation and works to establish a precedent for Tribal jurisdiction over non-Indian actions.

The FMC versus Shoshone-Bannock case was first heard in Tribal court, with the burden of proof relating to the Montana exceptions falling on the Tribes. In Tribal court, the Tribes successfully argued their case, and satisfied the second Montana exception (relating to health and welfare of the Tribes). The Tribal court did not accept Tribes assertions to satisfy the first exception because the agreement was not codified in a tribal ordinance, and the Secretary of the Interior had not approved the $1.5 million annual fee. Nonetheless, the Tribes won the day.

Later, the FMC appealed to the Idaho District Court, but the District Court upheld the Tribal court decision. In fact, the District Court went one step further, ruling for the Tribes under both Montana exceptions.

Then, in 2014 FMC appealed to the United States Court of Appeals for the Ninth Circuit, continuing to argue that the Tribes lacked jurisdiction under the Montana exceptions. For the first exception – which requires a consensual legal agreement – FMC argued that the EPA coerced its consent to tribal jurisdiction. And for the second exception – which requires a threat to health and welfare – FMC argued that they had taken remedial actions to clean up the site. However, the Ninth Circuit ruled in favor of the Tribes under both exceptions, stating that the FMC’s decision to enter into a legal agreement constituted a “business decision” to avoid the costs and hardships of litigation, and that the remedial actions were not sufficient to reduce the health and welfare risks to acceptable levels.

But, we’re not quite there yet! To demonstrate how long this battle has being going on, FMC petitioned the U.S Supreme Court to review the Ninth Circuit’s decision. But, on the 11th January 2021, the United States Supreme Court declined the petition and therefore upheld the FMC’s obligation to back-pay all of its annual permitting costs. FMC was ordered to pay approximately $19 million to the Tribes.

This case is important because not only have the Shoshone-Bannock Tribes have finally received compensation for the degradation of their tribal land, but it continues to reinforce a powerful regulatory precedent, which protects tribal land from non-Indian actions.

Next week on Sustainable Idaho, we’re going to hear more from Tribal Attorney, Mr. Bill Bacon, about the human and environmental risks posed by the continued hazardous waste storage. We’re also going to hear from the FMC Corporation. Join us for Sustainable Idaho, every Tuesday morning at 7.35am.

For extra information, you can visit:

Eastern Michaud Flats Superfund Website

FMC RCRA website