Who Pays the Bill for Mining Leftovers?

Case is emblematic of a larger battle in Congress over the effectiveness of the Superfund program

Once upon a time, when the American West was still a frontier and Manifest Destiny ruled as the federal policy of commerce, Butte, Mont., was called the richest hill on earth.

Billions of dollars' worth of copper was excavated from ubiquitous geologic veins running beneath this nub of the Rockies, yielding a valuable metal conductor that revolutionized the way electricity and incandescent light were brought to homes around the globe.

But after more than a century of intensive mining, in which local streams were used as crude disposal systems for hazardous wastes, the area stretching for 130 miles from Butte to Missoula gained another distinction: It became home to the largest single complex of Superfund sites in the United States.

The question is, who should pay for what the federal government estimates is a $1 billion cleanup job? According to the State of Montana, which is now pursuing one of the nation's largest damage claims to address natural resource degradation not covered by Superfund, the burden should fall upon the Los Angeles-based Atlantic Richfield Company (ARCO).

In its $765 million suit now being heard in Great Falls, Mont., the state argues that ARCO absorbed liability for the environmental trouble spot when it bought the land and assets owned by the once-powerful and now-defunct Anaconda Company in the 1970s.

But officials at ARCO disagree with that logic. "We have a serious question about the fairness of a law that recognizes none of the benefits given to society by the industries that caused some of the problems," says Sandy Stash, general manager of ARCO's Montana facilities. "Most of the problems we are dealing with date back to the late 1800s when the world needed copper. The sites here were created by waste-disposal practices that were 100 percent legal at the time."

No matter the viewpoint, the legacy of mining near Butte is evident: It's a moonscape of heavy metals and undrinkable water, from the caustic stew of the Berkeley Open Pit to PCPs in Silver Bow Creek to the contaminated banks of the formerly pristine Clark Fork River.

For those who support the beleaguered federal Superfund program, the need for cleanup in Butte and the notable progress already made are compelling reasons why Congress should reauthorize Superfund for at least the remainder of the century.

Yet Butte also is held up by industry as an example of where Superfund has failed the American people. Opponents attack the 17-year-old program as a nightmare of regulatory enforcement, a burden on free enterprise, and a huge financial boondoggle that has benefited attorneys and environmental consultants more than it has cleaned up the landscape. In Butte, the hazards are not expected to be fully remedied for another 50 years.

Another complaint is that thousands of small businesses and individuals have been drawn into the morass of Superfund liability through second- and third-party lawsuits. Companies forced by the government to clean up landfills, for example, have sued private waste haulers who, in turn, sue their customers.

When the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund) passed in 1980, intervention was designed for sites like Love Canal in the East, where drums filled with hazardous waste could easily be removed, says Sara Weinstock of the Environmental Protection Agency (EPA), which administers the law.

The architects of Superfund assumed the government could rid the landscape of toxic dumps within five years at a cost of $1.6 billion.

But $25 billion later, after the focus shifted to the West's landfills and mining areas, officials learned spots here could not be cleaned up quickly or inexpensively.

"In Butte, when the sites here went on the national priorities list for cleanup, I don't think anyone understood the complicated scope of the problem," Ms. Weinstock says. Like the areas around Butte, many Superfund sites in the West take decades to be cleansed.

Superfund's purpose of holding companies and municipalities liable for contamination at industrial sites, mines, and landfills is now being debated in Congress, as conservative lawmakers jostle with the Clinton administration over how to address nearly 40,000 sites. (Cleanup is intended to reduce or eliminate risk to human or environmental health, not to restore an area to pre-industrial conditions.)

"More than 70 million Americans live within four miles of a Superfund site," says Sen. Max Baucus (D) of Montana. "I think those Americans want us to pass a law that provides them with more protection, not less."

EPA administrator Carol Browner acknowledges that while Superfund has its share of problems, the alternatives of having either no law or one that does not hold polluters accountable is unthinkable.

Accountability seems to be what the state of Montana wants more of from ARCO. The pending lawsuit could result in ARCO paying for environmental damage caused to the Clark Fork River - in addition to the $360 million it has already spent (not including attorney's fees) to clean up urban pollution in the Butte area.

"I think Superfund has been wrongly maligned by the very corporate interests that stand to lose," says Montana Assistant Attorney General Rob Collins, adding that 90 percent of the money spent by corporations has been on litigation to deny responsibility. "Throughout the 1980s, the federal government was defensive because of all the lobbying [by] corporations.... But lately EPA has taken the position, and rightly so, that Superfund does work. Montana and the Clark Fork River are examples that progress is being made."

By holding corporations responsible for performing 75 percent of long-term cleanups like the one in Butte, EPA estimates taxpayers have been saved more than $12 billion.

Today, Butte is known as "the town too tough to die." In fact, Superfund has spawned a multi-million-dollar industry based on environmental consultants and research facilities pioneering waste-disposal methods.

And there are cleanup success stories in the area, ARCO and EPA agree. This year in nearby Anaconda, a Jack Nicklaus-designed golf course opens across what used to be contaminated soil. Along the banks of the Clark Fork, a rejuvenated wetland has become a haven for migratory waterfowl. And in Butte, a former tailings graveyard is being converted into a community recreation center.

"I do not believe the cleanup of residential areas in Butte would have been completed if it hadn't been for Superfund," Weinstock says. "Here, we had mining occurring beside and below neighborhoods where thousands of people live, with soil contaminated by high levels of lead. I grew up in Butte. I was one of the children who played on the dumps."

Superfund Progress Report

Out of 1381 sites on the EPA's national priority list, the agency says that more than 80 percent are in some phase of cleanup.

Already Cleaned: 427 sites

Cleanup Under Way: 474 sites

Designing Cleanup: 140 sites

Remedy Selected: 77 sites

Study Under Way: 203 sites

No Study Begun: 60 sites

In addition, more than 3,400 other hazardous waste sites that pose a public health risk have been targeted with emergency removal action.

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