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FMC Corp's Hazardous Waste Storage: A human, environmental, and legal story. Part 3

Phosphine gas emanating from a temperature port at a closed and capped RCRA pond at FMC. Shoshone –Bannock Tribal photo

This week on Sustainable Idaho, Scott and Rachel complete their exploration of FMC’s storage of hazardous waste on the Shoshone-Bannock Tribal Reservation. Speaking to Lead Tribal Attorney Mr. Bill Bacon, the episode explores the environmental and health considerations at the site, before considering future legal actions. Tune in to Sustainable Idaho this week to hear the conclusion of the FMC hazardous waste series.

For the last two weeks, we have been exploring the FMC’s storage of hazardous waste on the Shoshone-Bannock Tribal Reservation. We learned that the FMC is an agricultural science company, which operated a phosphorous plant on the reservation between 1949 and 2002. However, FMC’s plant operation created a lot of hazardous chemical waste. We learned from the Environmental Protection Agency that the site still houses 20 million tons of elemental phosphorous or phosphorous byproducts in waste storage ponds. If unmanaged, the waste presents a threat to both people and the environment.

A complex legal battle between the FMC Corporation and the Shoshone-Bannock Tribes, regarding the storage of the hazardous waste, has been ongoing for over 15 years. The case centered on regulatory jurisdiction and the authority of the Tribes to enforce a $1.5 million annual waste storage permitting agreement.

Last week, Lead Tribal Attorney 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 the legal cases. They originate from the 1981 Supreme Court case, Montana vs United States, and are therefore referred to as the Montana exceptions.

As we explored last week, the FMC versus the Shoshone-Bannock Tribes case was heard in Tribal, District, Circuit and even the U.S Supreme Court. Ultimately, after decisions from the Tribal, District, Appeals – and US Supreme Court, the Shoshone-Bannock Tribes won the day in January, 2021 and the FMC Corporation were order to pay nearly $20 million dollars in unpaid annual permitting fees. To read more about the legal history of this story, please view the related content at the bottom of this page and by viewing the past stories on this topic.

But, with the hazardous waste still stored on the reservation, what does all this mean moving forward? Last week we learned from the EPA, that the FMC Site is designated a Superfund site. A Superfund Site is a legally recognized polluted site. We spoke to lead Tribal attorney Mr. Bill Bacon about the environmental and health considerations at the site.

Mr. Bacon explained that the FMC Superfund Site is one of the worst in the country, and is recognized as such because it is on the National Priority List, or NPL.

So why is the FMC Site on this list? Well, Mr. Bacon started asking the EPA in 2005 whether the hazardous waste could get into ground water and the Portneuf River. The EPA responded by saying the pond beds were clay, so it was unlikely that the hazardous waste would seep into groundwater, but Bacon thought otherwise. The area had been the bottom of Lake Bonneville once upon a time, so it was likely to have a greater composition of sand. Sure enough, a few years later, contaminants had begun to leak out towards the Portneuf via groundwater.

On their website, the FMC Corporation confirm that groundwater contamination from the site is a serious concern. The FMC report that arsenic is the primary contaminants of concern, with arsenic present in both the shallow aquifer beneath the site and in the Portneuf River in the area between Swanson Road Spring and Batiste Spring. The FMC admits that the arsenic levels in the aquifer and in that stretch of Portneuf River exceed federal drinking water standards.

However, groundwater is not the only concern. Another concern was that the phosphine could become reactive and ignitable in the two Olympic sized pools full of waste. When phosphine meets air, it can cause an explosion, which could then harm wildlife or people if they’re around. Mr. Bacon described past accounts of ducks landing in the ponds and then blowing up after taking off due to the air-phosphine reaction. The FMC said that the host of risks from phosphine reactions were addressed when the ponds were covered with dirt which would prevent air flow. However, in 2010, one of Bacon’s associates was passing by the site on the interstate and saw smoke coming out of the ground, covering the sites was ineffective. Pictures were sent to the EPA, who later came out to the site and during testing detected 3 deadly gases. 

Again, the FMC’s online statements support Mr. Bacon’s claims about the release of dangerous phosphine gas. The FMC concedes that phosphine gas was released into the air from the uncapped waste ponds. However, following the introduction of engineered caps to the ponds, the FMC suggests that the amount of phosphine gas generation is greatly reduced. This is because the waste requires the presence of water or oxygen to react and form phosphine gas. Additionally, the FMC states that whilst some phosphine gas will build up under the engineered caps, three gas extraction and treatment systems are in place to prevent the release of phosphine gas.

We asked Mr. Bacon if the phosphine gas has harmed or killed anybody – and if the site continues to pose a threat – even with the introduction of caps to the waste ponds?

Mr. Bacon made a distinction between before the FMC’s plant closure, and after. Before the closure, many people had been injured due to close contact with phosphine. Phosphine, as a gas, is heavier than air and thus, follows the contour of the land. At this point, no air testing has been done on the FMC’s property.

So even after decades of legal struggles and environmental remediation efforts, there remains important questions to be answered. Arguably the most important is if the waste is ever going to be removed from the site? Currently, following its policies to limit risks to acceptable levels, the EPA is attempting to monitor and manage the site, but these actions do not include the removal of the waste. The Shoshone-Bannock tribes are strong advocates of removing the waste in order to protect their community. Finally, we asked Mr. Bacon what he thinks is going to happen next with FMC annual is permitting fee and the EPA’s refusal to remove the hazardous waste.

Mr. Bacon noted that the EPA will likely continue to pay the annual fee of 1.5 million dollars to the tribe. While the Tribes advocate for the complete removal of the waste, it appears unlikely that the agency will change gears without further legal pressure from the tribes.

EPA links

EPA website on FMC site