Joint Appendix — Atlantic Richfield Company, Petitioner v. Gregory A. Christian, et al.
Supreme Court briefAug 21, 2019
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No. 17-1498
In the Supreme Court of the United States
ATLANTIC RICHFIELD COMPANY, PETITIONER
v.
GREGORY A. CHRISTIAN, ET AL., RESPONDENTS
ON WRIT OF CERTIORARI
TO THE SUPREME COURT OF MONTANA
JOINT APPENDIX
LISA S. BLATT
Williams & Connolly LLP
725 Twelfth St. NW
Washington, DC 20005
(202) 434-5000
lblatt@wc.com
JOSEPH R. PALMORE
Morrison & Foerster LLP
2000 Pennsylvania Ave. NW
Washington, DC 20006
(202) 887-6940
jpalmore@mofo.com
Counsel of Record for
Petitioner
Counsel of Record for
Respondents
PETITION FOR A WRIT OF CERTIORARI FILED: APRIL 27, 2018
CERTIORARI GRANTED: JUNE 10, 2019
TABLE OF CONTENTS
Page
Docket Entries from the Montana Supreme
Court .................................................................
1
Docket Entries from the Montana District
Court .................................................................
5
Third Amended Complaint (Dec. 21, 2012) ........
38
Community Soils OU ROD (Sept. 1996) .............
58
Anaconda Regional Water, Waste, and Soils OU
ROD (Sept. 1998) .............................................
105
Administrative Order for Remedial Action
(Community Soils OU, Residential Soils
Remedial Design Unit) (Aug. 21, 2002) ..........
117
Anaconda Regional Water, Waste, and Soils OU
ROD Amendment (Sept. 2011) ........................
148
Expert Report of Richard E. Bartelt (Apr. 2013)...
175
Expert Report of John R. Kane (Apr. 15, 2013) ....
227
Expert Report of David M. Emmons (Apr. 15,
2013) .................................................................
242
Atlantic Richfield’s Brief in Support of
Motion for Summary Judgment re: CERCLA
(May 17, 2013) ..................................................
321
Affidavit of Richard E. Bartelt in Support of
Atlantic Richfield’s Motion for Summary
Judgment re: CERCLA (May 16, 2013) ..........
333
(i)
ii
TABLE OF CONTENTS—Continued
Page
Plaintiffs’ Brief in Opposition to Motion for
Summary Judgment re: CERCLA (June 7,
2013) .................................................................
342
Atlantic Richfield’s Reply in Support of Motion
for Summary Judgment re: CERCLA (July 1,
2013) .................................................................
346
Supplemental Expert Disclosure of John R.
Kane (July 31, 2013) ........................................
350
Supplemental Expert Disclosure of John R.
Kane (Sept. 16, 2013) .......................................
352
Community Soils OU ROD Amendment (Sept.
2013) .................................................................
373
Anaconda Smelter Superfund Site Fifth FiveYear Review (Sept. 25, 2015) ...........................
377
Supplemental Expert Disclosure of John R.
Kane (May 2, 2016) ..........................................
385
Supplemental Expert Disclosure of John R.
Kane (Sept. 14, 2016) .......................................
399
Transcript of Hearing on Motions for Summary
Judgment (June 20, 2016) ...............................
405
iii
NOTICE
The following items have been omitted in printing the
joint appendix because they appear as appendices to
the petition for certiorari as follows:
Appendix A: Montana Supreme Court
opinion (Dec. 29, 2017) .................................
1a
Appendix B: Montana
District
Court
opinion (Aug. 30, 2016) ................................
41a
Appendix C: United States’ Amicus Brief,
Montana Supreme Court (Dec. 8, 2016) ......
56a
1
MONTANA SUPREME COURT
————
Docket No. OP 16-0555
————
ATLANTIC RICHFIELD COMPANY,
v.
MONTANA SECOND JUDICIAL DISTRICT COURT, SILVER
BOW COUNTY, THE HON. KATHERINE M. BIDEGARAY
————
RELEVANT DOCKET ENTRIES
DATE
PROCEEDINGS
09/21/2016 Petition - Writ - Supervisory Control
* * *
10/05/2016 Order - this Court accepts jurisdiction for
the limited purpose of considering the DC
8/30/16 Order; Atlantic’s opening brief is
due w/n 30 days. U.S. may file an amicus
brief; further proceedings are STAYED;
in all other respects the petition is
DENIED.
10/11/2016 Petition - Rehearing. copies to Court.
10/17/2016 Response/Objection – Rehearing
* * *
10/18/2016 Order - the petition for rehearing is
DENIED; the petition shall be accepted
as the summary response to the petition
for writ; Atlantic Richfield’s opening brief
is due within 30 days.
2
DATE
PROCEEDINGS
11/16/2016 Motion - Opposed - Brief and Supporting
Affidavit - Enlarged Amicus Brief - copies
to Court with a copy of Lodged Amicus
Brief
11/17/2016 Brief - Appellant’s Opening
11/22/2016 Motion - Unopposed - Amicus - Leave to
Participate (Montana Trial Lawyers Association) - sent to Court w/SC file
11/23/2016 Order - Amicus-Grant Participation of
Montana Trial Lawyers. Brief shall be
due concurrently with Respondent’s Brief
11/23/2016 Motion - Unopposed - Amicus - Leave to
Participate (Clark Fork Coalition) - sent
to Court w/SC file
11/25/2016 Response/Objection - Response to Motion
to file Enlarged Amicus Brief
* * *
11/25/2016 Order - Amicus-Grant
(Clark Fork Coalition)
Participation
11/29/2016 Order - Denying Motion to file Enlarged
Amicus Brief
12/05/2016 Motion - Unopposed - Amicus - Leave to
Participate (Montana Environmental
Information Center) -sent to Court w/SC
file
12/06/2016 Order - MEIC is granted leave to file an
amicus curiae brief in this matter which
shall be due concurrently with that of the
Respondent.
3
DATE
PROCEEDINGS
12/09/2016 Brief - Amicus (USA)
12/19/2016 Brief - Amicus - (Clark Fork Coalition).
12/19/2016 Brief - Amicus (Montana Trial Lawyers
Association and Montana Environmental
Information Center)
12/19/2016 Brief - Plaintiffs/Counter-Petitioners’
Answer Brief.
* * *
12/21/2016 Motion - Unopposed - Extension of
Time - Reply Brief (sent to court)
12/21/2016 Order - Grant - Extension of Time Petitioner is granted until 2/2/17 to file
the reply brief.
02/03/2017 Brief - Appellant Reply
* * *
02/15/2017 Order - Classified - Oral Argument Friday, 4/7/17 at 9:30 a.m., introduction
at 9:00 a.m.; Hon. James A. Manley will
participate in the place of Chief Justice
McGrath, who has recused himself.
* * *
02/23/2017 Order - Hon. John A. Kutzman called to
participate in place of Justice Rice in
4/7/17 Oral Argument
03/13/2017 Motion - Unopposed - Oral Argument Leave to Participate (Amicus Curiae
United States)
* * *
4
DATE
PROCEEDINGS
03/14/2017 Order - Granting Amicus United States
leave to participate in oral argument
03/17/2017 Motion - Unopposed - Oral Argument Leave to Participate
03/17/2017 Order - Grant - Motion of Amicus
Montana Trial Lawyers Association to
participate in oral argument is GRANTED.
Respondent and Amicus are free to divide
their time as they see fit, but the total
amount of time between them shall not
exceed 30 minutes
* * *
04/07/2017 Event - Oral Argument Presented by
Jonathan Rauchway for the petitioner
and Matthew Oakes, Department of
Justice, Amicus. Respondent argument
presented by Justin Stalpes and Domenic
Cossi, Montana Trial Lawyers Association, Amicus. The matter was taken
under advisement at 10:40 a.m..
* * *
12/29/2017 Opinion - Opinion and Order - Justice
Shea; the district court’s orders on summary judgment are AFFIRMED; the matter
is remanded for further proceedings.
12/29/2017 Opinion - Synopsis of Opinion
5
BUTTE-SILVER BOW COUNTY DISTRICT COURT
————
Case Register Report
DV-47-2008-0000173-NE
————
GREGORY A CHRISTIAN, et al.,
v.
BP AMOCO CORPORATION, et al.
————
RELEVANT DOCKET ENTRIES
DOC.
SEQ.
ENTERED FILED
1.000
4/17/2008
TEXT
JUDGE
04/17/2008 Complaint and Jury
Demand Filed no
Summons Issued
Newman, Brad
2.000
07/10/2008
07/10/2008 Amended
Complaint and Jury
Demand/ (24) Summons Issued
Newman, Brad
* * *
4.000
07/31/2008 07/31/2008 Notice to Clerk of
Court of Removal
to Federal Court
(Atlantic Richfield
Company)
Newman, Brad
6
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
* * *
19.000 12/17/2008 12/09/2008 Order
(Granting
Remand to District
Court) (Filed in
Federal Court)
Newman, Brad
* * *
56.000 07/12/2011 07/11/2011 Motion for Leave to
File Amended Complaint and Jury
Demand and Supporting Memorandum
(original
received 7/12/11)
Newman, Brad
57.000 07/14/2011 07/14/2011 Order
Granting
Leave
to
File
Amended
Complaint and Jury
Demand
Newman, Brad
* * *
59.000 08/03/2011 08/03/2011 Second Amended
Complaint
and
Jury Demand
Newman, Brad
* * *
7
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
65.000 08/19/2011 08/19/2011 Atlantic Richfield
Company’s Answer
to Second Amended
Complaint and Jury
Demand
Newman, Brad
* * *
91.000 10/15/2012 10/12/2012 Stipulation to Allow
Amendment of Complaint
Newman, Brad
* * *
94.000 10/15/2012 10/12/2012 Order
Allowing
Amendment
of
Complaint
Newman, Brad
* * *
140.000 12/24/2012 12/24/2012 Third
Amended
Complaint
and
Jury
Demand
(Order Entry #94)
Newman, Brad
* * *
152.000 01/09/2013 01/09/2013
Altanic Richfield
Company’s Answer
to Third Amended
Complaint
and
Jury Demand
Newman, Brad
8
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
* * *
214.000 04/15/2013 04/15/2013
Plaintiffs’ Expert
Witness Disclosure
(Attachments not
filed - exceed 25
pages and no Order
to
file)(Original
4/16/13)
Newman, Brad
215.000 04/15/2013 04/15/2013
Defendants’ Expert
Witness Disclosure
Newman, Brad
* * *
219.000 05/03/2013 05/03/2013 Atlantic Richfield
Co. Motion for
Summary
Judgment on Plaintiffs’
Negligence Claim
Newman, Brad
220.000 05/03/2013 05/03/2013 Atlantic Richfield
Co. Brief in Support of Motion for
Judgment on Plaintiffs’ Claim for Restoration Damages as
Barred by Cercla
Newman, Brad
* * *
9
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
226.000 05/20/2013 05/20/2013 Atlantic Richfield
Company’s Brief in
Support of Motion
for Summary Judgment on Plaintiffs’
Claim for Restoration Damages as
Barred by CERCLA
(Attachments not
scaanned)
Newman, Brad
* * *
228.000 05/29/2013 05/29/2013 Plaintiffs’ Brief in
Opposition to Arco’s
Motion for Summary
Judgment
(Negligence)
Newman, Brad
* * *
233.000 06/10/2013 06/10/2013 Plaintiffs’ Motion
for Summary Judgment on Arco’s
Cercla Preemption
Affirmative
Defenses (11th-13th)
Newman, Brad
* * *
10
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
239.000 06/12/2013 06/12/2013 Plaintiffs’ Brief in
Opposition to Arco’s
Motion for Summary
Judgment
and In Support of
Plaintiffs’ CrossMotion for Summary Judgment on
Arco’s Cercla Preemption Affirmative
Defenses
(11th-13th)
Newman, Brad
240.000 06/14/2013 06/14/2013 Atlantic Richfield
Company’s Reply
In
Support
Of
Motion For Summary Judgment On
Plaintiffs’
Negligence Claim
Newman, Brad
* * *
242.000 06/19/2013 06/19/2013
Defendants’ Rebuttal Expert witness
Disclosure
Newman, Brad
* * *
249.000 06/28/2013 06/28/2013 Atlantic Richfield
Company’s Request
for Oral Argument
11
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
on Pending Summary
Judgment
Motions
Newman, Brad
* * *
254.000 07/02/2013 07/01/2013 Atlantic Richfield
Company’s Reply
in Support of Motion
for Summary Judgment on Plaintiffs’
Claim for Restoration Damages as
Barred by Cercla
and Response to
Plaintiffs’
Cross
Motion
Newman, Brad
* * *
260.000 07/12/2013 07/12/2013 Atlantic Richfield
Company’s Motion
for Summary Judgment on its Easement Rights.
Newman, Brad
* * *
267.000 07/15/2013 07/15/2013 Atlantic Richfield
Company’s Brief in
Support of Motion
12
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
for Summary Judgment on Its Easement Rights (Exhibits not Scanned)
Newman, Brad
* * *
286.000 08/19/2013 08/19/2013 Atlantic Richfield
Company’s Reply
Brief in Suport of
Motion to Compel
Production of Plaintiffs’ Fee and Costs
Agreements
Newman, Brad
287.000 08/20/2013 08/19/2013 Plaintiffs’ Brief in
Response to ARCo’s
Motion for Summary
Judgment
Based on Claimed
Easement Rights
and In Support for
Summary
Judgment on ARCo’s
Third Affirmative
Defense Re: Easements
(Original
replaced
fax:
8/21/13)
Newman, Brad
13
DOC.
SEQ.
ENTERED FILED
288.000 08/21/2013 08/21/13
TEXT
JUDGE
Plaintiffs’ CrossMotion for Summary Judgement on
ARCO’s Third Affirmative Defense
Newman, Brad
* * *
291.000 08/30/2013 08/30/2013 Atlantic Richfield
Co. Motion for
Summary
Judgment on Plaintiffs’
Unjust
Enrichment, Constructive
Fraud, Strict Liability, and Wrongful
Occupation
Claims.
Newman, Brad
292.000 08/30/2013 08/30/2013 Atlantic Richfield
Co.’s Brief in Support of Motion for
Summary
Judgment on Plaintiff’s
Unjust
Enrichment, Constructive
Fraud, Strict Liability, and Wrongful
Occupation
Claims.
Newman, Brad
14
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
293.000 08/30/2013 08/30/2013 Defendants’ Motion
for Summary Judgment on all Claims
Against all Defendants Other Than
Atlantic Richfield
Company
Newman, Brad
294.000 08/30/2013 08/30/2013
294. Defendants’
Brief in Support of
Motion for Summary Judgment on
all Claims Agains
all
Defendants
Other
Than
Atlantic Richfield
Company
Newman, Brad
295.000 09/06/2013 09/06/2013 295.
Atlantic
Richfield
Company’s Reply in
Support of Motion
for Summary Judgment on its Easement Rights and
Response to Plaintiffs’ Cross-Motion
Newman, Brad
* * *
15
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
299.000 09/12/2013 09/12/2013 Atlantic Richfield
Company’s Motion
for Summary Judgment on Plaintiffs’
Claim for Punitive
Damages
Newman, Brad
300.000 09/12/2013 09/12/2013 300.
Altantic
Richfield
Company’s Brief in
Support of Motion
for Summary Judgment on Plaintiffs’
Claim for Punitive
Damages
Newman, Brad
301.000 09/12/2013 09/12/2013 301.
Altantic
Richfield
Company’s Motion for
Summary
Judgment on Plaintiffs’
Surface and Ground
Water Restoration
Claims Based on
Res Judicata and
Release
Newman, Brad
302.000 09/12/2013 09/12/2013 Atlantic Richfield
Company’s Brief in
Support of Motion
16
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
for Summary Judgment on Plaintiffs’
Surface and Ground
Water Restoration
Claims Based on
Res Judicata and
Release
Newman, Brad
303.000 09/12/2013 09/12/2013 Atlantic Richfield
Company’s Motion
for Summary Judgment on Plaintiffs’
Claim for Restoration Damages
Newman, Brad
304.000 09/12/2013 09/12/2013 Atlantic Richfield
Company’s Brief in
Support of Motion
for Summary Judgment on Plaintiffs’
Claim for Restoration Damages
Newman, Brad
305.000 09/12/2013 09/12/2013 305.
Atlantic
Richfield
Company’s Motion for
Summary
Judgment on Plaintiffs’
Trespass & Nuisance Claims
Newman, Brad
17
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
306.000 09/12/2013 09/12/2013 Atlantic Richfield
Company’s Brief in
Support of Motion
for Summary Judgment on Plaintiffs’
Trespass & Nuisance Claims
Newman, Brad
307.000 09/12/2013 09/12/2013 Atlantic Richfield
Company’s Motion
For
Summary
Judgment On all of
Plaintiffs’ Claims
As Barred By The
Applicable
Statutes of Limitations
Newman, Brad
308.000 09/12/2013 09/12/2013 Atlantic Richfield
Company’s Brief In
Support of Motion
For
Summary
Judgment on all of
Plaintiffs’ Claims
As Barred By the
Applicable
Statutes of Limitations
Newman, Brad
309.000 09/13/2013 09/12/2013 Plaintiffs’ Motion for
Partial Summary
Judgment (Affirmative
Defenses)
18
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
(Original received:
9/16/13)
Newman, Brad
310.000 09/13/2013 09/12/2013 Plaintiffs’ Brief in
Suppport of Motion
for Partial Summary
Judgment
(Affirmative
Defenses) (Original
received: 9/16/13)
Newman, Brad
311.000 09/13/2013 09/12/2013 Plaintiffs’ Motion
for Partial Summary
Judgment
(Liability) (Original
received:
9/16/13)
Newman, Brad
312.000 09/13/2013 09/12/2013 Plaintiffs’ Brief in
Suppport of Motion
for Partial Summary
Judgment
(Liability)
and
Opposing ARCO’s
Motion for Summary
Judgment
(Strict
Liability)
(Original received:
9/16/13)
Newman, Brad
19
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
* * *
320.000 09/18/2013 09/18/2013
Plaintiffs Second
Supplemental
Expert
Witness
Disclosure
Newman, Brad
321.000 09/20/2013 09/20/2013 Plaintiff’s Response
to ARCO’s Motion
for Summary Judgment on all Claims
Against all Defendants other than
Atlantic Richfield
Company
Newman, Brad
* * *
327.000 09/24/2013
09/23/2013 327. Plaintiffs’ Brief
Opposing Atlantic
Richfield
Company’s Motion for
Summary
Judgment
(Wrongful
Occupation, Constructive
Fraud,
Unjust
Enrichment)
(Original
9/25/13)
Newman, Brad
328.000 09/24/2013 09/24/2013
Plaintiffs’
Reply
Brief in Support
20
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
Motion for Summary Judgment on
Arco’s Third Affirmative Defense (Pollution Easements)
(Original 9/25/13)
Newman, Brad
* * *
332.000 09/30/2013 09/30/2013 Atlantic Richfield
Company’s
Response to Plaintiffs’ Motion for
Summary
Judgment (Liability)
Newman, Brad
333.000 09/30/2013 09/30/2013 Atlantic Richfield
Conpany’s Reply in
Support
of
its
Motion for Summary Judgment on
Plaintiffs’
Strict
Liability Claim
Newman, Brad
334.000 10/01/2013 10/01/2013
334. Defendants’
Reply in Support of
Unopposed Motion
for Summary Judgment on All Claims
Against All Defendants Other Than
21
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
Atlantic Richfield
Company
Newman, Brad
* * *
341.000 10/07/2013 10/07/2013 341.
Atlantic
Richfield
Company’s Opposition
to Plaintiffs’ Motion
for Partial Summary
Judgment
(Affirmative
Defenses)
Newman, Brad
342.000 10/08/2013
10/07/2013 342. Plaintiffs’ Brief
Opposing ARCo’s
Motion for Summary
Judgment
(Res Judicata and
Release) (Original
replaced
fax:
10/9/13)
Newman, Brad
343.000 10/08/2013 10/07/2013
343.
*Plaintiffs’
Brief
Opposing
ARCo’s Motion for
Summary
Judgment (Restoration
Damages) (Original replaced fax:
10/9/13)
Newman, Brad
22
DOC.
SEQ.
ENTERED FILED
344.000 10/08/2013
TEXT
JUDGE
10/07/2013 344. Plaintiffs’ Brief
Opposing ARCo’s
Motion for Summary
Judgment
(Statute of Limitations)
(Original
replaced
fax:
10/9/13)
Newman, Brad
* * *
348.000 10/08/2013 0/08/2013
348.
Plaintiffs’
Response in Opposition to ARCO’s
Motion for Summary Judgment RE:
Trespass & Nuisance
Newman, Brad
349.000 10/08/2013 10/08/2013
349.
Plaintiffs’
Response Brief in
Opposition
to
ARCO’s Motion for
Summary
Judgment RE: Punitive
Damages
Newman, Brad
* * *
353.000 10/09/2013 10/09/2013 353. Order Concerning Defendant
Atlantic Richfield’s
23
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
Motion for Summary Judgment on
all Claims Against
Defendants Other
Than
Atlantic
Richfield
Newman, Brad
* * *
363.000 10/10/2013 10/10/2013
363.
Plaintiffs’
Motion in Limine
(EPA Evidence)
Newman, Brad
363.100 11/18/2013 11/18/2013 Plaintiffs’ Brief in
Support of Motion
in Limine (EPA
Evidence)
Newman, Brad
* * *
387.000 10/11/2013 10/11/2013 387.
Atlantic
Richfield
Company’s Reply in
Support of Motion
for Summary Judgment on Plaintiffs’
Constructive Fraud,
Wrongful Occupation, & Unjust
Enrichment Claims
Newman, Brad
24
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
* * *
389.000 10/18/2013
10/18/2013 389. Plaintiffs Reply
Brief In Support of
Motion For Partial
Summary
Judgment
(Liability)
(Original 10/21/13)
Newman, Brad
390.000 10/21/2013 10/21/2013 390.
Atlantic
Richfield
Company’s Reply in
Support of Motion
for Summary Judgment on Plaintiffs’
Claim for Punitive
Damages
Newman, Brad
* * *
393.000 10/21/2013 10/21/2013 393.
Atlantic
Richfield
Company’s Reply in
Support of Motion
for Summary Judgment on Plaintiffs’
Trespass and Nuisance Claims
Newman, Brad
* * *
25
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
399.000 10/24/2013 10/24/2013 399.
Atlantic
Richfield
Company’s Reply Brief
in
Support
of
Motion for Summary Judgment on
Plaintiffs’ Claim for
Restoration Damages
Newman, Brad
400.000 10/24/2013 10/24/2013 400.
Atlantic
Richfield
Company’s Reply in
Support of Motion
for Summary Judgment on Plaintiffs’
Surface and Ground
Water Restoration
Claims Based on
Res Judicata and
Release
Newman, Brad
401.000 10/24/2013 10/24/2013 401.
Atlantic
Richfield
Company’s Reply in
Support
of
Its
Motion for Summary Judgment on
All of Plaintiffs’
Claims as Barred by
26
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
the Applicable Statutes of Limitations
Newman, Brad
402.000 10/25/2013
10/24/2013 402. Plaintiff’s Reply
Brief in Support of
Motion for Partial
Summary
Judgment (Affirmative
Defenses) (Original
10/28/13)
Newman, Brad
* * *
422.000 11/05/2013 11/04/2013 Atlantic Richfield
Company’s
Response in Opposition to Plaintiffs’
Motion in Limine
(EPA Evidence)
Newman, Brad
* * *
428.000 11/13/2013 11/12/2013
United
States’
Motion for Leave to
file a Brief Amicus
Curiae
Newman, Brad
429.000 11/13/2013 11/12/2013
Brief of United
States As Amicus
Curiae in Support
of
Defendant
27
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
Atlantic
Co.
Richfield
Newman, Brad
* * *
431.000 11/15/2013 11/14/2013
Plaintiffs’
Brief
Opposing
the
United
States’
Motion for Leave to
File a Brief Amicus
Curiae
(Original
replaced
fax:
11/18/2013)
Newman, Brad
* * *
442.000 11/21/2013 11/21/2013 Order
Denying
Motion
of
the
United States for
Leave to File an
Amicus Curiae Brief
Newman, Brad
* * *
452.000 11/22/2013 11/21/2013
Plaintiffs’
Reply
Brief in Support of
Motion in Limine
(EPA
Evidence)
(Original replaced
fax: 11/25/13)
Newman, Brad
28
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
* * *
461.000 12/17/2013 12/17/2013
Memorandum and
Order
Granting
Defendant’s Motion
for Summary Judgment on all Plaintiffs’ Claims as
Barred by Applicable Statutes of
Limitations
Newman, Brad
* * *
465.000 12/23/2013 12/23/2013
Notice Of Entry of
Judgment
Newman, Brad
466.000 12/23/2013 12/23/2013
Memorandum and
Order
Granting
Defendant’s Motion
For Summary Judgment on All Plaintiffs Claims As
Barred By Applicable Stattes of Limitations
Newman, Brad
* * *
468.000 01/10/2014 01/10/2014 Copy of Notice of
Appeal (Filed at
Supreme Court)
Newman, Brad
29
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
476.000 09/22/2015 09/22/2015 Remittitur
(Affirmed in part,
reversed in pary,
and remanded)
Newman, Brad
* * *
479.000 09/25/2015 09/25/2015 Motion For Substitution of District
Judge - ($100.00
paid by Plaintiffs)
Newman, Brad
480.000 10/14/2015 10/14/2015 Order
Newman, Brad
* * *
483.000 10/30/2015 10/30/2015 Motion for Substitution of Judge
($100.00 paid)
Krueger, Kurt
* * *
486.000 11/25/2015 11/25/2015
Order
Inviting
Assumption
of
Jurisdiction
Krueger, Kurt
* * *
502.000 02/05/2016 02/05/2016 Atlantic Richfield
Company’s Supplemental Brief in
30
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
Support of Summary Judgment on
Plaintiffs’ Claims
for Damages Incurred Prior to the
Limitations Period
BIDEGARAY,
KATHY
503.000 02/05/2016 02/05/2016 Atlantic Richfield
Company’s Roadmap and Supplemental Authority
for Pending Motions
for Summary Judgment
BIDEGARAY,
KATHY
504.000 02/05/2016 02/05/2016 Plaintiffs’ Roadmap
Reqarding Pending
Motions for Summary
Judgment
(original received
2/8/16)
BIDEGARAY,
KATHY
* * *
508.000 02/26/2016 02/26/2016
Plaintiff’s
Brief
Opposing ARCO’s
Motion For Summary
Judgment
31
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
Based On The
Statute Of Limitations
(original
received 2/29/16)
BIDEGARAY,
KATHY
509.000 03/11/2016 03/11/2016 Atlantic Richfield
Company’s Reply
in Support of Summary Judgement
on Plaintiffs’ Claims
for
Damages
Incurred Prior to
Limitations Period
BIDEGARAY,
KATHY
* * *
519.000 04/27/2016 04/27/2016 Order
Denying
Plaintiff’s Motion
for Summary Judgment
(Liability)
(original received
5/2/16)
BIDEGARAY,
KATHY
* * *
521.000 04/28/2016 04/28/2016 Order
Denying
Arco’s Motion for
Summary
Judgment On Plaintiffs’
32
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
Trespass and Nuisance Claims (original received 5/2/16)
BIDEGARAY,
KATHY
* * *
524.000 05/03/2016 05/02/2016
Plaintiffs’ Supplemental Expert Witness Disclosure (Original Received
05/04/2016)
(143
pages)
BIDEGARAY,
KATHY
* * *
526.000 05/23/2016 05/23/2016
United
States’
Motion for Leave to
File a Brief Amicus
Curiae
BIDEGARAY,
KATHY
527.000 05/23/2016 05/23/2016 Plaintiffs’ Response
To U.S. EPA’s
Second Request To
Appear as Amicus
Curiae
BIDEGARAY,
KATHY
* * *
33
DOC.
SEQ.
ENTERED FILED
536.000 06/15/2016 06/15/2016
TEXT
JUDGE
United
States’
Statement of Willingness to Participate in Oral Argument Scheduled for
June 20-21
BIDEGARAY,
KATHY
* * *
544.000 08/31/2016 08/31/2016 Order
Denying
Atlantic Richfield
Co.s Motion For
Summary
Judgment On Plaintiff’s
Strict
Liability
Claim
BIDEGARAY,
KATHY
34
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
545.000 08/31/2016 08/31/2016 Order
Denying
Arco’s Motion for
Summary
Judgment on Plaintiff’s
Claim for Summary Judgment on
it’s Easement Rights
& Granting Plaintiff’s Motion for
Summary
Judgment
on
Arco’
Third Affirmative
Defense
BIDEGARAY,
KATHY
546.000 08/31/2016 08/31/2016 Order
Denying
Arco’s Motion for
Summary
Judgment of Plaintiffs’
Claim for Restoration Damages as
Barred By CERCLA
and Granting Plaintiff’s Motion for
Summary
Judgment on ARCO’s
CERCLA presemption
Affirmative
Defenses (11th 13th)
BIDEGARAY,
KATHY
35
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
547.000 08/31/2016 08/31/2016 Order
Granting
Atlantic Richfield
Companys Motion
for Summary Judgment On Plaintiff’s
Negligence Claim
BIDEGARAY,
KATHY
548.000 08/31/2016 08/31/2016 **Email** Order
Denying Atlantic
Richfield
Cos.
Motion for Summary Judgment on
Plaintiffs’ Claim for
Groundwater Damages ad Granting
Plaintiffs’ Motion
ofr Summary Judgment on Atlantic
Richfield Companys
5th & 6th Affirmative defenses
BIDEGARAY,
KATHY
549.000 08/31/2016 08/31/2016 Order
Denying
Arco’s Motion for
Summary
Judgment Re; Punitive
Damages
BIDEGARAY,
KATHY
36
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
550.000 08/31/2016 08/31/2016 Order
Denying
Atlantic Richfield
Companys Motion
for Summary Judgment on Plaifitffs’
Claim for Restoration Damages
BIDEGARAY,
KATHY
551.000 08/31/2016 08/31/2016 Order
Denying
Atlantic Richfield
Co.s Motion for
Summary
Judgment on Plaintiff’s
Claim for Wrongful
Occupation
BIDEGARAY,
KATHY
552.000 08/31/2016 08/31/2016 Order
Denying
Atlantic Richfield
Co’s Motion for
Summary
Judgment On Plaintiffs
Claims for Damages Incurred Prior
to the Limitations
Period
BIDEGARAY,
KATHY
554.000 09/01/2016 08/31/2016
Order Denying in
Part and Granting
37
DOC.
SEQ.
ENTERED FILED
TEXT
JUDGE
in Part Atlantic
Richfield
Co.s
Motion in Limine
Concerning Damages Outside The
Statutory Period
BIDEGARAY,
KATHY
* * *
569.000 09/07/2016 09/07/2016 Order
Granting
Plaintiffs’ Motion
in Limine (EPA
Evidence)
BIDEGARAY,
KATHY
* * *
38
[Third Amended Complaint
(Dec. 21, 2012)]
Tom. L. Lewis
J. David Slovak
Mark M. Kovacich
LEWIS, SLOVAK, KOVACICH & MARR, P.C.
P.O. Box 2325
Great Falls, MT 59403
(406) 761-5595
Monte D. Beck
Justin P. Stalpes
Lindsay C. Beck
BECK & AMSDEN, PLLC
1946 Stadium Drive, Suite 1
Bozeman, MT 59715
(406) 586-8700
Attorneys for Plaintiffs
MONTANA SECOND JUDICIAL DISTRICT
COURT, SILVER BOW COUNTY
————
Cause No. DV-08-173 BN
————
GREGORY A. CHRISTIAN; MICHELLE D. CHRISTIAN;
ROSEMARY CHOQUETTE; DUANE N. COLWELL; SHIRLEY
A. COLWELL; FRANKLIN J. COONEY; VICKI COONEY;
GEORGE COWARD; SHIRLEY COWARD; JACK E. DATRES;
SHEILA DORSCHER; VIOLA DUFFY; BRUCE DUXBURY;
JOYCE DUXBURY; BILL FIELD; CHRIS FIELD;
ANDREW GRESS AND FRANK GRESS AS CO-PERSONAL
REPRESENTATIVES OF THE ESTATE OF JAMES GRESS;
CHARLES GUSTAFSON; MICHAEL HENDRICKSON; BRUCE
HOLBROOK; MAUREEN ROBINSON-HOLBROOK; PATRICE
39
HOOLAHAN; SHAUN HOOLAHAN; ED JONES; RUTH
JONES; BARBARA KELSEY; CARL KOEPPLIN; MYRTLE
KOEPPLIN; BRENDA KRATTIGER; DOUG KRATTIGER;
LADONA KRUM; JULIE LATRAY; LEONARD MANN;
VALERIE MANN; KRISTY MCKAY; RUSS MCKAY; BRYCE
MEYER; MILDRED MEYER; JUDY MINNEHAN; TED
MINNEHAN; DIANE MORSE; RICHARD MORSE; KAREN
MULCAHY; PATRICK MULCAHY; NANCY MYERS; SERGE
MYERS; LESLIE NELSON; RON NELSON; JANE NEWELL;
JOHN NEWELL; GEORGE NILAND; LAURIE NILAND;
DAVID OSTROM; ROSE ANN OSTROM; JUDY PETERS;
TAMMY PETERS; ROBERT PHILLIPS; TONI PHILLIPS;
CAROL POWERS; WILLIAM D. POWERS; GARY RAASAKKA;
MALISSA RAASAKKA; ALEX REID; KENT REISENAUER;
PETE REISENAUER; SUE REISENAUER; LARRY RUPP;
JOHN A. RUSINSKI; KATHRYN RUSINSKI; EMILY RUSS;
SCOTT RUSS; CARL RYAN; PENNY RYAN; RICH SALLE;
DIANE SALLE; DALE SCHAFER; DAVID D. SCHLOSSER;
ILONA M. SCHLOSSER; MICHAEL SEVALSTAD; JIM
SHAFFORD; ROSEMARIE SILZLY; ANTHONY SOLAN;
KEVIN SORUM; DON SPARKS; VICKIE SPEHAR; ZANE
SPEHAR; CARA SVENDSEN; CARON SVENDSEN; JAMES H.
SVENDSEN, SR.; JAMES SVENDSEN, JR.; DOUG
VIOLETTE; ESTER VIOLETTE; CAROL WALROD; CHARLES
WALROD; DARLENE WILLEY; KEN YATES; SHARON
YATES; LINDA EGGEN AS PERSONAL REPRESENTATIVE
OF THE ESTATE OF WILLIAM YELSA AND AS GUARDIAN
OF MAURINE YELSA; DAVID ZIMMER; AND TONI ZIMMER,
Plaintiffs,
vs.
BP AMOCO CORPORATION, A FOREIGN CORPORATION
FOR PROFIT; BP CORPORATION NORTH AMERICA, INC., A
FOREIGN FOR PROFIT CORPORATION; BP AMERICA, INC.,
A FOREIGN CORPORATION FOR PROFIT;; BP AMOCO
CHEMICAL COMPANY, A CORPORATION; BP AMOCO,
40
P.L.C., A CORPORATION; THE BRITISH PETROLEUM
COMPANY, P.L.C., A FOREIGN CORPORATION FOR
PROFIT; ATLANTIC RICHFIELD COMPANY,
A CORPORATION FOR PROFIT; ATLANTIC RICHFIELD
DELAWARE CORPORATION, A DELAWARE CORPORATION
FOR PROFIT; THE ANACONDA DELAWARE CORPORATION,
A FOR PROFIT CORPORATION; THE ANACONDA COMPANY,
A MONTANA CORPORATION; ANACONDA MINERALS
COMPANY, A CORPORATION; ANACONDA COPPER
MINING COMPANY; A FOR PROFIT CORPORATION;
ESTATE OF FRANK DAY, DECEASED; SHANNON DUNLAP;
AND DOES 1 - 100, INCLUSIVE;
Defendants.
————
THIRD AMENDED COMPLAINT
AND JURY DEMAND
COME NOW the Plaintiffs, demanding trial by jury,
and for their complaint against the Defendants, allege
as follows:
PARTIES
1.
All Plaintiffs, except LaDona Krum and Anthony
Solan, are citizens of the State of Montana. Plaintiff
LaDona Krum is a citizen of Nevada. Plaintiff Anthony
Solan is a citizen of Washington. One or more of the
Plaintiffs is a resident of Silver Bow County. Plaintiffs
own real property in and around Opportunity, Montana.
2.
Defendant The Anaconda Company is and/or was a
business corporation for profit with its principal place
of business in the State of Montana.
41
3.
Defendants Atlantic Richfield Company (ARCO),
Atlantic Richfield Delaware Corporation, and The
Anaconda Delaware Corporation are business corporations for profit organized and existing under the laws
of states other than the State of Montana with principal places of business in states unknown to the Plaintiff.
Defendants ARCO; Atlantic Richfield Delaware Corporation; and Anaconda Delaware Corporation were involved
in merger agreements, which ultimately resulted in the
purchase and/or acquisition of Defendant The Anaconda
Company by ARCO. As a result of the said merger
agreements and the acquisition of The Anaconda Company, ARCO, Atlantic Richfield Delaware Corporation,
and Anaconda Delaware Corporation assumed liability for all claims that could have been brought against
The Anaconda Company. For purposes of this action,
the allegations and claims against The Anaconda
Company are also allegations and claims against
ARCO, Atlantic Richfield Delaware Corporation, and
Anaconda Delaware Corporation, as successor corporations. (The Anaconda Company, ARCO, Atlantic
Richfield Delaware Corporation, and Anaconda
Delaware Corporation may be referred to from time to
time herein as the “ARCO Defendants.”)
4.
Defendants BP Amoco Corporation: BP Corporation
North America, Inc.; BP America, Inc.; BP Amoco
Chemical Company; BP Amoco, P.L.C.; The British
Petroleum Company, P.L.C.; and one or more of Does
1 - 1000 Inc. are business corporations for profit
organized and existing under the laws of states other
than the State of Montana with principal places of
business in States unknown to the Plaintiff (BP Amoco
Corporation; BP Corporation North America, Inc.;
42
BP America, Inc.; BP Amoco Chemical Company;
BP Amoco, P.L.C.; The British Petroleum Company,
PL.C.; and one or more of Does 1 - 1000 Inc. may be
referred to from time to time herein as the “BP Amoco
Defendants.”) The BP Amoco Defendants were involved
in merger agreements, which ultimately resulted in
the purchase and/or acquisition of the ARCO Defendants.
As a result of the merger agreement and acquisition of
the ARCO Defendants, the BP Amoco Defendants
assumed liability for all claims which could have
been brought against the ARCO Defendants and The
Anaconda Company. For purposes of this action, the
allegations and claims against the ARCO Defendants
and The Anaconda Company are also allegations and
claims against the BP Amoco Defendants, as successor
corporations.
5.
Defendant the Estate of Frank Day is a citizen and
resident of the State of Montana. On the date of his
death Frank Day was a citizen and resident of the
State of Montana. This action is brought against the
Estate of Frank Day for personal torts of Frank Day
committed in his individual capacity against the
Plaintiffs and in his capacity as manager of The
Anaconda Company smelter in Anaconda, Montana.
6.
Defendant Shannon Dunlap is a citizen and resident
of Butte, Silver Bow County, Montana. Dunlap is an
employee of ARCO. This action is brought against
Dunlap for personal torts committed in his individual
capacity against the Plaintiffs.
43
7.
The true names and capacities of Defendants named
herein as Does I through 100, inclusive, are unknown
to Plaintiffs at this time. Plaintiffs therefore bring this
action against Does I through 100, inclusive, by such
fictitious names. Plaintiffs will seek leave to amend
this complaint to state the true names and capacities
of Does 1 through 100 when the same have been
ascertained, together with further appropriate charging allegations. Plaintiffs are informed, believe, and
thereon allege that each Defendant, fictitiously named
Does 1 through 100, is legally responsible for the occurrences herein alleged and that Plaintiffs’ damages
were proximately caused by each fictitiously named
Defendant’s unlawful acts or omissions. Defendants
Does 1 through 100, inclusive, are natural persons,
corporations, partnerships, joint ventures, or other
legal entities who wrongfully and unlawfully caused or
contributed to Plaintiffs’ damages.
JURISDICTION AND VENUE
8.
The District Court has jurisdiction pursuant to
§ 3-5-302, MCA.
9.
Venue is proper in the Montana Second Judicial
District Court, Silver Bow County, Montana, pursuant
to § 25-2-117, § 25-2-118, and § 25-2-122, MCA, because
Defendant Dunlap is a resident of Silver Bow County,
and because the Defendants committed acts resulting
in the accrual of this tort action in Silver Bow County.
44
GENERAL ALLEGATIONS
10.
Each act of negligence, carelessness, recklessness,
and maliciousness, and each violation of law alleged
herein was committed by Defendants and/or employees or agents of Defendants, acting within the course
and scope of their employment or agency with Defendants, and in furtherance of the business interests of
Defendants; and each unlawful act or omission alleged
herein is imputable to Defendants.
11.
ARCO and its predecessors, acting in the course and
scope of their businesses, owned, occupied, operated,
managed, used, and/or maintained a milling and smelting operation located near the towns of Anaconda and
Opportunity, Deer Lodge County, Montana. This operation and its associated ore processing and smelting
facilities were developed to remove copper from ore
mined in Butte, Silver Bow County, from 1884 to 1980.
12.
During the period of their ownership and occupancy
of the mining, milling, and smelting operation and its
associated facilities, and at times since closing the
operation, Defendants negligently, suddenly, accidentally, unexpectedly, maliciously, and with reckless
disregard of Plaintiffs’ rights, caused toxic and hazardous smelter and ore processing wastes - including, but
not limited to, mine tailings, furnace slag, flue dust,
and heavy metals such as arsenic, copper, cadmium,
lead, and zinc - to enter the air, soil, surface waters,
and groundwater in and around said facilities.
45
13.
Said toxic contaminants and hazardous materials
migrated, and continue to migrate, by means of air,
groundwater, and soil, onto the property of the
Plaintiffs.
14.
Defendants intentionally, negligently, maliciously,
and/or with reckless disregard of Plaintiffs’ rights,
made affirmative misrepresentations and/or failed
to disclose material facts to Plaintiffs, and/or prior
owners of Plaintiffs’ property. Defendants were aware
of the toxicity and migration of said hazardous materials, knew the hazards associated with the migration of
such toxic materials into the community, and failed to
warn Plaintiffs, or prior owners of Plaintiffs’ property,
that their health, welfare, and property values had
been jeopardized.
15.
As a direct and proximate result of the Defendants’
unlawful conduct, Plaintiffs have suffered damages,
including, but are not limited to, loss of real property
value, damage to their interests in real property, costs
of investigation and restoration of real property, loss
of use and enjoyment of property, and incidental and
consequential damages.
FIRST CAUSE OF ACTION
(Negligence)
Plaintiffs reallege paragraphs 1 through 15 of this
Complaint and Jury Demand and adopt the same as
paragraphs 1 through 15 of this First Cause of Action.
46
16.
Defendants owed Plaintiffs a duty to act with reasonable care, so as not to jeopardize their property, health,
and welfare.
17.
Defendants breached their duty of care by negligently, carelessly, and recklessly generating, releasing,
depositing, disposing, and failing to control and contain the hazardous and toxic materials generated,
used, and released at their Anaconda mining, milling,
and smelting operation and its associated facilities.
Defendants’ negligence is more particularly described
as follows:
A. Failure to control and contain heavy metals and
other toxic substances generated and spread as
a result of Defendants’ operations;
B. Failure to prevent said toxic materials from
migrating to neighboring properties;
C. Failure to exercise reasonable care to contain
the toxins once the Defendants knew or reasonably should have known they had polluted a
large area in and about the Plaintiffs’ properties;
D. Failure to exercise reasonable care to prevent
the escape of Defendants’ toxins that permeated
the soil and contaminated the groundwater in
and about the area of Plaintiffs’ properties
thereby creating a substantial risk of harm and
injury to Plaintiffs and their properties;
E. Failure to remove the toxic substances from the
Plaintiffs’ properties; and
F. Failure to warn the Plaintiffs of the scope of and
dangers posed by the contamination.
47
18.
As a direct and proximate result of the Defendants’
foregoing negligent and unlawful conduct, Plaintiffs
have suffered, and continue to suffer, damages and
detriment as herein alleged.
SECOND CAUSE OF ACTION
(Public Nuisance)
Plaintiffs reallege paragraphs 1 through 18 of the
First Cause of Action and adopt the same as paragraphs 1 through 18 of this Second Cause of Action.
19.
The Plaintiffs are members of the public who reside,
work, conduct their personal and business affairs, and
have proprietary interests in certain real and personal
property in the areas affected by Defendants’ contamination. Plaintiffs also have rights incidental to that
property, including the right to the exclusive use and
quiet enjoyment of the property.
20.
The conduct of Defendants violates § 27-30-101,
MCA, et seq., and constitutes a common law nuisance
in that it is specially injurious and offensive to the
senses of the Plaintiffs, specially interferes with and
disturbs their comfortable enjoyment of their life and
property, and unlawfully prevents the customary use
of their property and residences. The contamination
caused by Defendants’ activities, as herein described,
affects a considerable number of persons, including the
entire community surrounding Plaintiffs’ property.
21.
To the extent the nuisance is not also a private
nuisance, the nuisance is specially injurious to Plain-
48
tiffs in that they are members of the public who reside
or own property within the area immediately affected
by the pollution. Plaintiffs therefore have suffered
interference with and injury to the use and enjoyment
of their property which is different in kind from the
injury suffered by the general public.
22.
Unless the nuisance is abated, Plaintiffs’ property
and rights of enjoyment of their property will be
progressively further damaged and further jeopardized in the future.
23.
As a direct and proximate result of the public
nuisance alleged herein, Plaintiffs have suffered, and
continue to suffer damages and detriment as herein
alleged.
THIRD CAUSE OF ACTION
(Private Nuisance)
Plaintiffs reallege paragraphs 1 through 23 of the
Second Cause of Action and adopt the same as
paragraphs 1 through 23 of this Third Cause of Action.
24.
Plaintiffs have ownership and/or proprietary interests in certain real and personal property in the areas
affected by the Defendants’ toxic contamination released
into the soil, air, and water. Plaintiffs also have the
right to the exclusive use and quiet enjoyment of their
property.
25.
The conduct of the Defendants constitutes a private
nuisance in that such conduct has caused substantial
injury to and interference with the comfortable enjoy-
49
ment and use by Plaintiffs of their real and personal
property, and their rights to use their property and
residences in the customary manner without exposure
to or concern regarding the dangers of toxic substances.
26.
Unless the nuisance is abated, Plaintiffs’ property
and their right to use and enjoy their property and their
interests will be progressively further jeopardized.
27.
As a direct and proximate result of the private
nuisance created by Defendants’s unlawful conduct
and activities, and the toxic dumping that resulted
therefrom, Plaintiffs have suffered, and continue to
suffer damages and detriment as herein alleged.
FOURTH CAUSE OF ACTION
(Trespass)
Plaintiffs reallege paragraphs 1 through 27 of the
Third Cause of Action and adopt the same as paragraphs 1 through 27 of this Fourth Cause of Action.
28.
At all times relevant to the causes of action alleged
in this Complaint, Plaintiffs resided on, owned, and/or
lawfully possessed property within the area affected
by the contamination.
29.
The Defendants intentionally, recklessly, negligently,
without just cause and by conducting an abnormally
dangerous activity, committed the wrongful act of
trespass by causing heavy metals, including arsenic,
copper, cadmium, lead, and zinc, and other toxic contaminants and hazardous substances, including mine
tailings, furnace slag, and flue dust, to invade and to
50
remain on the real property of Plaintiffs. Said toxic
substances were transported on to Plaintiffs’ properties by air, soil, and groundwater.
30.
Defendants have failed to remove said toxic substances from the property.
31.
As a direct and proximate result of Defendants’
trespass, Plaintiffs have suffered, and continue to
suffer damage and loss to their real property as herein
alleged.
FIFTH CAUSE OF ACTION
(Strict Liability for Abnormally Dangerous Activity)
Plaintiffs reallege paragraphs 1 through 31 of the
Fourth Cause of Action and adopt the same as paragraphs I through 31 of this Fifth Cause of Action.
32.
The mining, milling, smelting, use, disposal, and
release of large quantities and concentrations of heavy
metals and other hazardous substances as herein
alleged and the operation of a large scale mining,
milling, and smelting operation immediately adjacent
to a residential community is an abnormally dangerous and ultra hazardous activity in that:
A. There exists a high degree of risk of serious
harm to the environment, persons, land, chattels
of others, including Plaintiffs, which cannot be
eliminated by the exercise of reasonable care;
B. There is a strong likelihood that great harm will
result from the mining, Milling, smelting, use,
disposal, and release of such hazardous materials
and toxic substances;
51
C. The mining, milling, smelting, use, disposal,
and release of such hazardous materials and
toxic substances in large quantities and concentrations in close proximity to a residential
community is not a matter of common usage
such as would be carried on by the great mass
of mankind or many people in the community;
D. The manner in which Defendants mined, milled,
smelted, used, disposed, and released such materials at their facilities is and was inappropriate;
and
E. The value to Defendants of the mining, milling,
smelting, use, disposal, and release of such large
quantities and concentrations of hazardous
materials and toxic substances adjacent to a
residential community is outweighed by the
likelihood of harm resulting therefrom.
33.
As a direct and proximate result of Defendants’
unlawful actions and abnormally dangerous and ultra
hazardous activities, Plaintiffs have suffered, and
continue to suffer, damages and detriment as herein
alleged.
SIXTH CAUSE OF ACTION
(Constructive Fraud)
Plaintiffs reallege paragraphs 1 through 33 of the
Fifth Cause of Action and adopt the same as paragraphs 1 through 33 of this Sixth Cause of Action.
34.
Defendants, including Defendant Dunlap and including Defendant The Estate of Frank Day, by and through
its decedent Frank Day, have known for decades that
their conduct as herein alleged caused toxic sub-
52
stances and hazardous materials to enter the air, soil
and groundwater and, as such, invade and remain on
Plaintiffs’ real property.
35.
Defendants, and each of them, had, and continue to
have, an absolute duty to disclose fully and to warn
Plaintiffs, on an ongoing basis, of the nature of, type
of, extent of, scope of contamination and the risks
posed by the toxic substances and hazardous materials
released by the Defendants’ mining, milling, and smelting operation and its associated facilities.
36.
Defendants breached, and continue to breach, their
duties, as set forth in the preceding paragraph, and
further, have misrepresented and continue to misrepresent, downplay, and conceal material facts, thereby
gaining an unfair advantage, by deception, over Plaintiffs to their prejudice, all in violation of § 28-2-406,
MCA, and the common law of Montana.
37.
As a result of Defendants’ constructively fraudulent
and deceitful acts, Plaintiffs’ interests were compromised because they relied upon the misinformation of
Defendants’ to their detriment and suffered damages,
and continue to suffer damages and detriment as
herein alleged.
SEVENTH CAUSE OF ACTION
(Unjust Enrichment)
Plaintiffs reallege paragraphs 1 through 37 of the
Sixth Cause of Action and adopt the same as paragraphs 1 through 37 of this Seventh Cause of Action.
53
38.
The Defendants intentionally, negligently, unlawfully, and wrongfully disposed of and deposited toxic
substances onto the Plaintiffs’ properties. Despite
knowledge that the Defendants had contaminated
the Plaintiffs’ properties, the Defendants have failed
and refused to timely and properly remove the
contamination.
39.
The Defendants’ use of Plaintiffs’ property to dispose
of, deposit, and store toxic substances is wrongful and
unlawful. Plaintiffs did not consent to the use of their
property in that manner.
40.
The Defendants’ unauthorized use of Plaintiffs’ property has benefitted them monetarily to the Plaintiffs’
detriment. The Defendants are therefore unjustly
enriched, and Plaintiffs are entitled to damages as a
result of the Defendants’ unjust enrichment.
SEVENTH CAUSE OF ACTION
(Wrongful Occupation of Real Property)
Plaintiffs reallege paragraphs 1 through 40 of the
Seventh Cause of Action and adopt the same as paragraphs 1 through 40 of this Eighth Cause of Action.
41.
Defendants have wrongfully occupied and continue
to wrongfully occupy Plaintiffs’ private property in violation of § 27-1-318, MCA, and Montana common law.
54
42.
As a result of Defendants’ wrongful occupation of
Plaintiffs’ property, Plaintiffs have suffered, and continue to suffer damages and detriment as herein alleged.
DAMAGES
43.
As a direct and proximate result of Defendants’
wrongful and unlawful acts and omissions, as herein
alleged, Plaintiffs were injured, have suffered, continue to suffer, and/or are reasonably certain to suffer,
the following harm, detriment, and damages:
A. Injury to and loss of use and enjoyment of real
and personal property:
B. Loss of the value of real property and rights
incidental thereto, and loss of use of that value
and those rights:
C. Incidental and consequential damages, including relocation expenses and loss of rental
income and/or value:
D. Annoyance, inconvenience and discomfort over
the loss and prospective loss of property value,
economic opportunities, ways of life and other
legal rights: and
E. Expenses for and cost of investigation and
restoration of real property:
44.
The Montana Constitution guarantees all persons in
Montana the inalienable, fundamental right to acquire,
possess, and protect property, as well as the right to a
clean and healthful environment. Defendants’ conduct
has violated the Plaintiffs’ constitutional rights, and
55
Plaintiffs are entitled to damages for full restoration
of their property as necessary to protect these constitutional rights.
45.
The Defendants have been unjustly enriched.
Plaintiffs are entitled to damages as a result of the
Defendants’ unjust enrichment.
46.
Plaintiffs are entitled to damages for Defendants’
wrongful occupation of the Plaintiffs’ properties.
47.
Plaintiffs have suffered and continue to suffer actual
damages as a result of Defendants’ unlawful conduct.
48.
Although Defendants have known for many years
that their unlawful conduct has caused, and continues
to cause, actual and extensive harm to Plaintiffs and
their property interests, Defendants have deliberately
proceeded to act in conscious and intentional disregard
for and indifference to the harm and the high probability of further injury and harm to Plaintiffs. The
conduct of Defendants’ is so intentional, fraudulent,
malicious, and egregious so as to shock the conscience
and present an affront to societal interests that are
unfathomable. Defendants have acted with cold and
calculated indifference to the rights and interests of
the Plaintiffs and their community.
49.
Defendants have made misrepresentations of fact
with knowledge or their falsity and have concealed
material facts with the purpose of depriving Plaintiffs
56
of their property or legal rights and otherwise causing
them injury, harm, and damages.
50.
Defendants were, and are, guilty of intentional
misconduct, actual malice, which justifies imposition
of punitive or exemplary damages in a sufficient amount
to punish them and to serve as warning to other legal
entities similarly situated that such conduct is unacceptable in our society and will not be tolerated.
JURY DEMAND
Plaintiffs demand trial by jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray for judgment against
the Defendants and awarding damages for following:
1. Reasonable compensation to Plaintiffs for all
harm they have suffered as a result of Defendants’
unlawful conduct;
2. Damages for investigation and restoration of
Plaintiffs’ property and other contaminated property
in close proximity to Plaintiffs’ property in order to
remove present contamination and prevent future
contamination;
3. Reasonable compensation for loss of property
value;
4. Reasonable compensation for loss of use and
enjoyment of real property;
5. Damages for the value of Defendants’ unauthorized use and wrongful occupation of Plaintiffs’ property, as well as the costs necessary to Plaintiffs to
recover possession of their property, including all
necessary investigation and restoration costs;
57
6. Reasonable compensation for unjust enrichment;
7. Reasonable compensation for annoyance, inconvenience, and discomfort over the loss and prospective
loss of property value, economic opportunities, and
other legal rights;
8. Punitive and exemplary damages in an amount
sufficient to punish and to deter Defendants and
others similarly situated from engaging in similar
wrongdoing;
9. Incidental and consequential damages, including
relocation expenses and loss of rental income and
value;
10. Costs and disbursements incurred herein; and
11. Such other and further relief as the Court deems
just and equitable.
DATED this 21 day of December, 2012.
LEWIS, SLOVAK, KOVACICH & MARR, P.C.
and
BECK & AMSDEN, PLLC
By: /s/ Mark M. Kovacich
Mark M. Kovacich
P.O. Box 2325
Great Falls, MT 59403
Attorneys for Plaintiffs
58
[Community Soils OU ROD (Sept. 1996)]
RECORD OF DECISION
COMMUNITY SOILS
OPERABLE UNIT
ANACONDA SMELTER NPL SITE
ANACONDA, MONTANA
————
September 25, 1996
————
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY
Region VIII, Montana Office
Federal Building, Drawer 10096
301 South Park
Helena, MT 59626
(406) 441-1150
(Lead Agency)
————
MONTANA DEPARTMENT OF
ENVIRONMENTAL QUALITY
2209 Phoenix Avenue
Helena, MT 59620
(406) 444-1420
(Support Agency)
————
Document Control Number: 7760-037-DD-DNJY
————
DECLARATION
————
59
DECLARATION
SITE NAME AND LOCATION
Anaconda Smelter NPL Site
Anaconda, Deer Lodge County, Montana
Community Soils Operable Unit
STATEMENT OF BASIS AND PURPOSE
This decision document presents the Selected Remedy
for the Community Soils Operable Unit (OU) of the
Anaconda Smelter NPL Site in Deer Lodge County,
Montana. EPA, with the concurrence of DEQ, selected
the remedy in accordance with CERCLA and the NCP.
This decision is based on the Administrative Record
for the Community Soils OU of the Anaconda Smelter
NPL Site. The Administrative Record (on microfilm)
and copies of key documents are available for public
review at the Hearst Free Library, located on the
corner of Fourth and Main in Anaconda, Montana, and
at the Montana Tech Library in Butte, Montana. The
complete Administrative Record may also be reviewed
at the EPA Records Center in the Federal Building,
301 South Park, in Helena, Montana.
The State of Montana concurs with the Selected
Remedy, as indicated by its signature.
ASSESSMENT OF THE SITE
Actual or threatened releases of hazardous substances at and from the Community Soils OU, if not
addressed by implementing the response action selected
in this ROD, may present an imminent and substantial endangerment to public health, welfare, or the
environment.
DESCRIPTION OF THE SELECTED REMEDY
The Community Soils OU is the fourth remedial
action to be taken at the Anaconda Smelter NPL Site.
60
The first action, taken at the Mill Creek OU, involved
the relocation of residents from the community of Mill
Creek after other initial stabilization and removal
efforts. The second action was the Flue Dust OU,
which addressed one of the principal threat wastes
(flue dust) remaining on the Anaconda Smelter NPL
Site. That action addressed flue dust at the site
through removal, treatment, and containment. At
approximately the same time, other removal actions
were undertaken, including permanent removal and
disposal of Arbiter and beryllium wastes and the
selective removal of contaminated residential yard
materials from the community of Anaconda. The third
action addressed various waste sources found within
the Old Works/East Anaconda Development Area OU,
located adjacent to the community of Anaconda, and
in areas of future development, and followed an initial
removal action in the same area. Certain wastes
within the OW/EADA OU received an engineered
cover, including the Red Sands waste material and the
Heap Roast slag piles, while others were consolidated
and/or covered, including the Floodplain wastes and
miscellaneous waste piles. In addition, the third action
allowed economic development (i.e., construction of a
golf course in the Old Works area) and provided the
final response action at the Mill Creek OU.
This remedial action at the Community Soils OU
will address all remaining residential and commercial/
industrial soils within the Anaconda Smelter NPL
Site. The principal contaminant of concern at the
Community Soils OU is arsenic in surficial soils from
past aerial emissions and railroad beds constructed of
waste material. This ROD establishes residential and
commercial/industrial action levels for arsenic at the
Anaconda Smelter NPL Site.
61
All remaining cleanup decisions for the Anaconda
Smelter NPL Site will be made under the Anaconda
Regional Water, Waste, and Soils (ARWWS) OU. The
ARWWS OU is intended to be the last OU at the site
and will address potential impacts to surface and
groundwater from soils and waste sources such as
tailings and slag. This OU will address human and
environmental risks associated with site-specific
contamination that have not been addressed by other
response actions.
Major components of the remedy for residential soils
include:
1. Clean up all current residential soils that exceed
the residential action level of 250 parts per million
(ppm) soil arsenic concentration, through removal and
replacement with clean soil and placement of a
vegetative or other protective barrier;
2. In areas where specific site conditions dictate
that removal is not implementable, treatment or other
measures (e.g., capping, tilling, Institutional Controls
(ICs) will be taken to reduce arsenic concentrations to
below the 250 ppm action level or to prevent exposure;
3. Clean up all future residential soils at the time of
development that exceed the residential action level of
250 ppm soil arsenic concentration, through the
Anaconda-Deer Lodge County (ADLC) Development
Permit System (DPS); and
4. Implement ICs to provide educational information to all residents describing potential risks, and
recommendations to reduce exposure to residual contaminants in soils, and to ensure the long-term
viability of this remedy.
Major components of the remedy for commercial/
industrial soils include:
62
1. Clean up all current commercial or industrial
areas that exceed the commercial/industrial action
level of 500 ppm soil arsenic concentration through a
combination of revegetative techniques and/or engineered covers; and
2. Clean up all future commercial or industrial
areas at the time of development that exceed the
commercial/industrial action level of 500 ppm soil
arsenic concentration through the ADLC-DPS.
Major components of the remedy for the railroad
beds include:
1. Construct an engineered cover over all contaminated railroad bed material within the community of
Anaconda to prevent direct contact with, and reduce
potential for erosion and transport of, contaminated
materials to residential and commercial/industrial areas;
2. Separate the railbed from residential and
commercial/industrial areas with a barrier to restrict
access to the railbed and to control surface runoff from
the railbed through the use of retaining walls and/or
curbing; and
3. Maintain existing ICs to restrict access.
The Selected Remedy will achieve reduction of risk
to human health through the following:
• Reduction of surface soil arsenic concentrations
in residential and commercial/industrial areas
to acceptable levels; and/or
• Prevention of direct human contact with waste
materials exceeding acceptable levels.
STATUTORY DETERMINATIONS
The Selected Remedy is protective of human health
and the environment, complies with federal and state
63
requirements that are legally applicable or relevant
and appropriate to the remedial action, and is cost
effective. This remedy uses permanent solutions (e.g.,
soil removal and engineered covers) and alternative
treatment technologies to the maximum extent practicable for this site. The remedy does not satisfy the
statutory preference for treatment as a principal
element of the remedy. Treatment is not a principal
element of the remedy because 1) soils are being
removed, thus eliminating the need for treatment and
2) treatment of railroad bed materials was not found
to be practicable on an active rail line. However,
treatment of other principal threats has been
employed in other response actions at the site.
Since hazardous substances above health-based
risk levels will remain on site, (i.e., railroad beds and
on-site soil management areas) a review will be
conducted within five years after commencement of
remedial action to ensure that the remedy continues
to provide adequate protection of human health and
the environment.
/s/ Max H. Dodson
Max H. Dodson, Director
Ecosystems Protection and Remediation Division
U.S. Environmental Protection Agency, Region VIII
9/30/96
Date
/s/ Mark A. Simonich
Mark A. Simonich, Director
Montana Department of Environmental Quality
9/26/96
Date
* * *
64
2.0 OPERABLE UNIT HISTORY AND
ENFORCEMENT ACTIVITIES
Around 1884, the Anaconda Mining Company
(AMC) and its predecessors commenced large copper
concentrating and smelting operations at the area
presently known as the Old Works. The Old Works
was located on the north side of Warm Springs Creek,
west of Anaconda, and operated until about 1901. In
about 1902, ore processing and smelting operations
began at the Washoe Reduction Works (also called
the Anaconda Smelter, the Washoe Smelter, the
New Works, and the Anaconda Reduction Works) on
Smelter Hill, south of Warm Springs Creek across
from the Old Works which was owned and operated by
AMC, its successors, and/or its subsidiaries. In 1977,
Atlantic Richfield Company (ARCO) purchased AMC
and expressly assumed its liabilities. Operations at
the Anaconda Smelter ceased in 1980, and the smelter
facilities were dismantled soon thereafter. The only
substantial feature remaining from the smelter facility is the large brick smelter stack on Smelter Hill.
ARCO has been identified as the Potentially Responsible Party (PRP) for this site.
The Anaconda Smelter NPL Site was placed on the
NPL in September 1983, under the authority of the
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). The U.S.
Environmental Protection agency (EPA) issued both
general and special notice letters to ARCO on several
occasions and ARCO has been actively involved in
conducting investigations and response actions at the
site since that time. On April 12, 1984, ARCO entered
into an Administrative Order on Consent (AOC) with
EPA to conduct demolition activities at the smelter. In
October 1984, ARCO entered into another AOC to
65
conduct several investigations at the Anaconda
Smelter NPL Site to characterize soils, surface water,
groundwater, and solid wastes. Early draft reports
based on initial investigations indicated wide-spread
contamination and the need for more in-depth study,
In the initial stages of the investigations, it was
discovered that the soils within the community of Mill
Creek, located two miles east of Anaconda, had
elevated levels of arsenic. Children in Mill Creek
also had elevated urinary arsenic levels, indicating an
excess exposure to arsenic in their environment.
Families with young children were temporarily
relocated from the community in May 1986. At that
time, flue dust, the most concentrated arsenic and
heavy metal source on the site, was sprayed with
surfactant to reduce fugitive emissions, and contaminated road dust in the community was treated to
reduce inhalation exposures. Following temporary
relocation, none of these children had levels of urinary
arsenic above the levels of concern as determined by
the Center for Disease Control.
In July 1986, EPA entered into an AOC with ARCO
to conduct an expedited RI/FS for the Mill Creek
community. The ROD for Mill Creek was completed in
October 1987. The selected remedy was the permanent
relocation of all Mill Creek residents. EPA negotiated
a Consent Decree with ARCO concerning the implementation of the relocation remedy for Mill Creek
residents on January 7, 1988. The permanent relocation was completed in fall 1988.
The generation and airborne transport of stack
particulate and fugitive dust emissions during smelting operations also resulted in contamination of soils
and household dust by arsenic, cadmium, copper, lead,
and zinc in other areas surrounding the smelter. In
66
addition, it was suspected that contaminated material
from the Old Works Smelter facilities was present
around homes in three Anaconda neighborhoods
(Teresa Ann Terrace, Elkhorn Apartments, and Cedar
Park Homes).
On September 28, 1988, ARCO entered into an AOC
(Docket No. CERCLA VIII-88-06) with EPA to conduct
an Engineering Evaluation/Cost Analysis (EE/CA)
study and investigation for the Old Works and
Community Soils OUs of the Anaconda Smelter NPL
Site. Results of sampling conducted by ARCO in 19881989 in the areas of Teresa Ann Terrace, Elkhorn
Apartments, and Cedar Park Homes indicated the
presence of elevated heavy metal concentrations at or
near the soil surface. Sampling conducted by ARCO in
1990 confirmed the presence of elevated concentrations of heavy metals in several yards, gardens, and
common areas of the three neighborhoods.
A September 17, 1991, an Action Memorandum
(with a concurrent AOC) required ARCO to conduct a
Time-Critical Removal Action (TCRA) by excavating
and removing contaminated soils in areas of Teresa
Ann Terrace, Elkhorn Apartments, and Cedar Park
Homes where arsenic concentrations exceeded 250
milligrams per kilogram (mg/kg). Under the TCRA,
removal of arsenic-contaminated soils to 18 inches and
replacement of topsoil and grass began in late 1991
and was completed in September 1992. Removal
occurred on about 8 acres of undeveloped lots and 19
yards in Teresa Ann Terrace, on 32 yards around the
Elkhorn apartments, and on 14 yards around Cedar
Park Homes.
In 1991, ARCO and EPA amended an AOC (Docket
No. CERCLA VIII-88-16) to conduct the Anaconda
Soils Investigation to provide information to support
67
future RI/FS activities at the Anaconda Smelter NPL
Site. The investigation focused on five geographic
areas: community soils; near community soils; community targeted soils; regional soils; and regional targeted soils. One of the primary objectives of the
investigation was to delineate the nature and extent
of metals contamination resulting from airborne
particulate deposition.
In 1992, ARCO initiated an Arsenic Exposure Study
through the University of Cincinnati, to measure
arsenic in Anaconda residents and evaluate possible
exposure pathways. Several hundred families participated in this study to provide environmental (i.e., soil,
dust, food, and water) and biological (i.e., urine) data.
Data from this study was utilized by EPA in the Final
Baseline Human Health Risk Assessment (HHRA) for
the Anaconda Smelter NPL Site (CDM Federal
1996a).
Also in 1992, EPA and ARCO further amended AOC
88-16 to conduct the Old Works/East Anaconda Development Area (OW/EADA) OU investigations. The
March 1994 ROD for the OW/EADA OU selected a
combination of engineering and institutional controls
(ICs) as the remedy. Remediation of recreational and
commercial/industrial areas was conducted where
waste and soils exceeded arsenic levels of 1,000 and
500 ppm, respectively.
In early 1994, EPA began the scoping process for the
human health risk assessment, culminating in the
completion of the Final Baseline HHRA in January
1996.
In 1995, ARCO and EPA entered into the 8th
Amendment to AOC 88-16 to conduct a Phase I Soils
Remedial Investigation from previous studies to
68
support both the Community Soils and ARWWS OUs.
This investigation contains the completed characterization of residential soils at the site. The Feasibility
Study (FS) portion of this Community Soils RI/FS was
conducted under the 7th Amendment to the AOC in
88-16.
The Community Soils OU addresses all remaining
residential and commercial/industrial soils of the
Anaconda Smelter NPL Site. This OU will also bring
closure to previous actions conducted at residential
properties within the site (i.e., Community Soils TCRA
and actions taken through the County's Development
Permit System) as well as commercial/industrial
properties. Other cleanup actions, not related to soil
contamination, have been selected and implemented
at the Anaconda Smelter NPL Site.
* * *
4.0 SCOPE AND ROLE OF OPERABLE UNIT
The Anaconda Smelter NPL Site covers a wide area
(Figure 2) and is currently organized into the following
OUs:
• Anaconda Smelter Demolition and Initial
Stabilization Actions
• Mill Creek Children Relocation Removal Action
• Mill Creek Relocation Remedial Action
• Anaconda Yards Time Critical Removal Action
• Arbiter Non-Time Critical Removal/Beryllium
Non-Time Critical Removal Action and Repository
Construction
• Old Works Stabilization Removal Action
• Flue Dust Remedial Action
69
• Old Works/East Anaconda Development Area
Remedial Action
• Community Soils Remedial Action
• Anaconda Regional Water, Waste, and Soils
Remedial Action
The OUs were prioritized based on their potential
risk to human health and the environment. Mill Creek
was considered the highest priority and EPA relocated
Mill Creek residents in 1988. Since then, EPA has also
taken action at several other areas, including Flue
Dust, Arbiter, Beryllium, OW/EADA, and Community
Soils. Completion of the Community Soils OU is considered the next priority because of the potential
exposure of remaining residents to elevated arsenic
concentrations.
The Conceptual Site Management Plan (SMP) was
formally revised in October 1995, with the Community
Soils and ARWWS OUs identified for remaining ROD
completion. A brief description of the Community Soils
and ARWWS OUs is provided below:
Community Soils Operable Unit. The Community
Soils OU will address residential soils throughout the
entire Anaconda Smelter NPL Site, including potentially contaminated soils and wastes in the communities
of Anaconda, Fairmont, Galen, Opportunity, and Warm
Springs, as well as rural residential areas. This includes
all land use areas (i.e., residential, commercial/ industrial, and recreational) within these general residential
areas. The Community Soils RI/FS will primarily address
human health risks from contact with contaminated
soils and will result in the development of a residential
soil action level for arsenic to be used sitewide.
70
Anaconda Regional Water, Waste, and Soils Operable
Unit. This OU combines the former Anaconda Regional
Water and Waste, Anaconda Soils, and Smelter Hill
OUs. No further activities will be required under the
Anaconda Soils and Smelter Hill OUs. The ARWWS
OU is intended to be the last OU of the Anaconda
Smelter NPL Site and will address all remaining issues
not addressed under other remedial actions. This OU
will continue to address potential impacts to surface
and groundwater from soils and waste sources such as
tailings and slag. This OU will address both the
human and environmental risks associated with siterelated contamination that have not been addressed
by other OUs.
The scope of the Community Soils OU. as defined
in the Anaconda Smeller NFL Site, Community Soils
RI/FS Work Plan (ARCO 1994), is to address all
residential areas within the NPL Site. These generally
include the communities of Anaconda, Opportunity,
Warm Springs, Galen, and Fairmont, and also include
adjacent rural residential areas. Residential areas
include all land uses (i.e., residential, commercial/
industrial, and recreational) within the general residential or community setting. Areas of concern within
these communities generally include yard areas and
other areas frequented by children (i.e., playgrounds
and schools). In addition, potential source areas within
the communities, including railroad beds and imported
waste/fill areas in both residential and commercial/
industrial areas, will also be addressed. Remediation
of ground and surface water is outside the scope of
this project and will be evaluated, along with other
contamination, under the ARWWS OU.
The purpose of the Community Soils OU RI/FS was
to gather sufficient information to support an informed
71
risk management decision for remediating potential
human health risks in residential and commercial/
industrial areas of the site. The RI/FS was performed
in accordance with EPA guidance (EPA 1988), the
National Oil and Hazardous Substances Pollution Contingency Plan (NCP), 40 C.F.R. Part 300, and CERCLA
Section 104, 42 U.S.C. § 9604.
The objectives of the RI/FS were to:
• characterize the nature and extent of arsenic
and metals in community and regional soils,
including the railroad bed materials;
• identify potential receptors, exposure patterns,
food chain relationships, and the human health
risks posed at the site from soil contamination;
• identify potential soil areas of concern based on
arsenic and other metals concentrations, potential risks, and the current or reasonably
anticipated future land use that may require
development of remedial alternatives;
• determine the effectiveness of soil treatment on
arsenic in soils through treatability studies;
• further define or modify each of the alternatives
listed in the work plan, with respect to areas of
concern and the technologies to be used, to be
assessed in this FS;
• analyze each of the FS alternatives against the
NCP (40 C.F.R. 300.430) criteria; and
• compare the relative performance among each
alternative with respect to the evaluation criteria.
Based on the findings of previous investigations and
the results of the Community Soils OU RI/FS (AGC
1996a), the sources and areas of contamination at the
72
Community Soils OU have been adequately delineated
to evaluate alternatives in the RIM.
This ROD was prepared according to EPA guidance
(EPA 1989). The remedy outlined in this ROD is
intended to be the final remedial action for residential
and commercial/industrial soils within the Community
Soils OU. It is also intended to be the final remedial
action for waste materials (i.e., railroad beds) within
the communities. The primary purpose of the remedy
presented in this ROD is to prevent human exposure,
by inhalation and ingestion, to contaminated soil and
smelter waste materials. Remedial actions for other
media (e.g., ground and surface water and environmental risk) are deferred to the ARWWS OU. Remedial
actions undertaken at the Community Soils OU are
intended to be consistent with the remedial action
objectives and goals identified for the ARWWS OU.
* * *
5.2
SURFACE SOILS
5.2.1 BACKGROUND SOIL CONCENTRATIONS
Soil, air, and groundwater arsenic, cadmium, and
lead background concentrations were compiled in the
Final Remedial Investigation Report, Mill Creek,
Montana, Anaconda Smelter Superfund Site (ARCO
1987). In addition, a literature review of environmental media, including soils, was conducted as part of a
public health and environmental assessment in the
Rocker and Ramsey areas (CH2MHill/Chen-Northern
1989). For the Baseline HHRA (CDM Federal 1996a),
regional background values for arsenic, cadmium, and
lead cited in the Mill Creek Remedial Investigation
(RI) report (ARCO 1987) (and included in the
CH2MHill/Chen-Northern, 1989, literature review)
were considered the most appropriate background
73
values for the Anaconda area. Samples from nonimpacted areas of Helena Valley, Philipsburg, Townsend, and Livingston were used to establish regional
background levels. These communities were generally
similar to those of Deer Lodge Valley. Upper and lower
95% confidence intervals around the geometric mean
were calculated to establish ranges of background soil
metals concentrations. Based on these data, the following ranges of background soil concentrations
(in mg/kg) for arsenic, cadmium, and lead were
established:
Arsenic
6-16
Cadmium
0.5-1.4
Lead
18-70
Although the Mill Creek RI report did not establish
background concentrations for copper and zinc, these
data were available for the same Helena Valley
(zinc only), Philipsburg, and Townsend stations used
to estimate background concentrations for arsenic,
cadmium, and lead. Using similar statistical analysis,
the following ranges of background soil concentrations
(in mg/kg) for copper and zinc were established:
Copper
17-29
Zinc
56-78
5.2.2 SURFACE SOIL DATA
Analytical data from previous site investigations
(Table 1) includes more than one thousand concentration values at locations covering an area of
approximately 300 square miles. The magnitude and
extent of arsenic, cadmium, copper, lead, and zinc
concentrations in surface (0 to 2 inch) soils in the
community and regional areas has been characterized
by compiling these analytical data into databases for
74
three separate areas: the Anaconda community,
Opportunity community, and the Regional area.
Kriging exercises were conducted for surface soil
concentrations of several metals in the three areas.
Kriging is a geostatistical method that was used to
predict concentrations between known sample values
and was used to characterize the surficial soil data
for the site. The metals studied in each of the two
communities were arsenic, cadmium, and lead. Metals
studied regionally were arsenic, cadmium, copper,
lead, and zinc.
The geostatistical methods used in this study are
referred to as ordinary and general relative kriging.
Ordinary and general relative kriging enables an
estimation of values at a point, or within an area for
which there are few or no sample values, based on a
set of neighboring values. It produces a regular grid of
interpolated point or block estimates and the kriging
standard deviation. The estimates are calculated from
a weighted average of neighboring sample values that
are located within a specified radius of influence.
Kriging also provides a measure of the reliability of the
estimates, because it takes into account the spatial
variability of the data. At the Anaconda Smelter NPL
Site, the spatial variability of metals concentrations
in surficial soil is partly attributed to the dispersion
of airborne particulates from the former Anaconda
Smelter stack. Further discussion of the methods
used, results, and limitations, is provided in the Soil
Characterization Report (AGC 1996b).
Results presented in the Soils Characterization
Report are based on kriging efforts (model selection,
data set preparation, project-specific assumptions)
conducted by ARCO's contractors in consultation with
EPA. These kriging results have been determined to
75
be sufficient for the purpose of the Community Soils
RI. Other methods of kriging using different models,
data sets, and assumptions may produce slightly
different but still valid kriging results.
A summary of all of the kriging results is presented
in Table 2 for the three areas. An initial screening of
the soil concentration data eliminated cadmium,
copper, and zinc from further consideration from a
human health standpoint, and only arsenic and lead
were fully evaluated in the Final Baseline HHRA
(CDM Federal 1996a), Therefore, for the following
summaries, only the results for arsenic and lead are
discussed. A complete discussion of all results is
provided in the RI/FS report (AGC 1996a).
Results - Anaconda
The kriging block size for Anaconda was set to
match the size of the city blocks in the central and
eastern parts of town, and a total of 551 blocks were
included in the kriging effort.
Arsenic. Estimated concentrations of arsenic
within the kriged blocks in Anaconda range
from 72 to 514 mg/kg, with an arithmetic mean
concentration of 186 mg/kg. Estimated concentrations of arsenic are highest in the
eastern portion of Anaconda, which is closest
to the primary source, the smelter stack. The
highest estimated concentrations of arsenic
are generally in commercial/industrial areas.
Within residential areas, estimated arsenic
concentrations range from 72 to 316 mg/kg.
Kriged blocks in residential areas with soil
arsenic concentrations greater than the 250
ppm action level are shown in Figure 4.
76
Lead. Estimated lead concentrations within
the kriged blocks range from 111 to 698 mg/kg,
with an arithmetic mean of 328 mg/kg. The
highest estimated concentrations of lead are
found in central Anaconda.
Results - Opportunity
The kriged area for Opportunity includes 360 3-acre
blocks. The majority of these are within the core of the
community, where land use includes residential,
public/institutional,
commercial/
industrial,
recreational, and agricultural. The remainder are in
the area outside the core, where land use includes
open space, pasture, and agriculture.
Arsenic. Estimated concentrations of arsenic
within the kriged blocks in Opportunity range
from 98 to 230 mg/kg, with an arithmetic mean
concentration of 154 mg/kg. Overall, the highest estimated arsenic concentrations are found
on the west side of Opportunity, in areas used
as open space or agricultural. No blocks exceeded the soil arsenic concentration action
level of 250 ppm.
Lead. Estimated concentrations of lead within
the kriged blocks range from 101 to 238 mg/kg,
with an arithmetic mean concentration of
153 mg/kg. The estimated lead concentrations
are highest in the edges of the community,
particularly to the south. These concentrations
are below the lead concentrations seen in
Anaconda.
77
Results - Regional
The regional kriging effort was conducted using a
block size of 70 acres and a grid consisting of 3,033
cells.
Arsenic. Estimated arsenic concentrations in
the regional kriged blocks range from 29 to
1,856 mg/kg, with an arithmetic mean concentration of 195 mg/kg. Estimated concentrations of arsenic exceed 1,000 mg/kg in 32
blocks. The highest estimated arsenic concentrations are found in the rural areas
between Anaconda and Opportunity in a
somewhat triangular area running northwest
from just behind Smelter Hill to the area just
beyond the airport. The orientation of the area
roughly approximates the primary direction of
wind flow in the area. Those blocks which
kriging shows to have soil arsenic concentrations greater than the 250 ppm action level are
shown in Exhibit 1.
Lead. Estimated concentrations of lead within
the kited blocks range from 16 to 825 mg/kg,
with an arithmetic mean of 127 mg/kg. The
highest concentrations are found within the
Smelter Hill area as well as northwest and
west of the area. Some of the higher concentrations are also found west of Anaconda.
5.3 SUBSURFACE SOILS
Subsurface soil samples were collected in most of the
previous investigations. The majority were collected
from soil profile sampling stations, where samples
were collected from various depth intervals. The
number of intervals sampled varied between investigations, but the most common intervals were: 0 to 2
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inches, 2 to 10 inches, and 10 to 24 inches. The
following is a review of the magnitude and extent of
metals distribution in the subsurface soil. Table 3
provides a summary of subsurface soil samples for
community and regional locations.
In Anaconda, arsenic concentrations in the 2- to 10inch interval ranged from 16 to 326 mg/kg, with an
arithmetic mean of 140 mg/kg. Only five of the 41
samples had arsenic concentrations that exceeded
250 mg/kg. Four of these samples were located in
residential areas. Lead concentrations in the 2- to 10inch interval ranged from 9 to 390 mg/kg, with an
arithmetic mean of 111 mg/kg.
There are 35 profile stations with a total of 96
samples in Anaconda. These include 62 subsurface
and 34 surface samples. Arsenic concentrations decrease with depth at a majority of the stations. At
stations where increases occur, the increases do not
appear to be statistically significant. Five of the 15
stations with increases have arsenic concentrations
over 250 mg/kg.
In Opportunity, arsenic concentrations in the 2- to
10-inch interval ranged from 18 to 125 mg/kg, with an
arithmetic mean of 71 mg/kg. Lead concentrations in
the 2- to 10-inch interval ranged from 9.4 to 63 mg/kg,
with an arithmetic mean of 40 mg/kg.
Soil profile samples in Opportunity include 41
samples from 16 stations. These include 25 subsurface
samples and 16 surface samples. Arsenic concentrations decrease with depth at 15 of 16 stations. At the
single station with an increase, the concentration was
above 250 mg/kg.
In regional subsurface samples, arsenic concentrations in the 2- to 10-inch interval ranged from 2 to
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2,440 mg/kg, with an arithmetic mean of 237 mg/kg.
Lead concentrations in the 2- to 10-inch interval
ranged from 6 to 4,550 mg/kg, with an arithmetic
mean of 88 mg/kg. Most samples with the highest
arsenic and lead concentrations are located in the
Smelter Hill area.
* * *
6.11 SUMMARY
Cancer risks, calculated using averaged RME concentrations for soil/dust for all evaluated subareas of
the site, fall into a narrow range of about 1E-05 to
3E-05. This narrow range reflects the relatively even
distribution of arsenic within Anaconda and Opportunity.
A similar narrow range of non-cancer risks (hazard
quotients of 0.1 to 0.3) is estimated for the same
exposures. Cancer risks estimates for all subareas are
within EPA’s targeted risk range of I E-04 to 1E-06,
but are greater than the 1E-06 point of departure. All
hazard quotients fall below the target level of one.
In subarea A and in Opportunity, cancer risks,
calculated using averaged RME concentrations for
groundwater, are in the same range as those for
exposure to soil/dust. This is also true for non-cancer
risks. Combined cancer and non-cancer risks suing
averaged RME concentrations for groundwater and
soil/dust (Subarea A and Opportunity) remain within
the risk range, but are greater than the point of departure. This suggests that even where near maximum
exposures to both groundwater and soil/dust occur
simultaneously, exposures are not in excess of the
targeted risk range established by EPA, but are
greater than the point of departure.
Typically, EPA considers remedial action at a site
when the excess cancer risk to any current or future
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population falls within or exceeds the targeted risk
range. EPA considers a risk of 1E-06 as the point of
departure for evaluating remedial actions. Although
the results of the risk assessment indicate that risks
calculated for each subarea are all within EPA’s targeted risk range, individual yards within a subarea
having elevated concentrations of arsenic (hot spots)
could preferentially pose an unacceptable risk to those
residents. In addition, rural residential areas that
were not adequately sampled to allow a calculation of
risk, may also have hot spots that could pose an unacceptable risk. Thus, EPA believes a remedial action is
necessary to address those individual residential areas
or hot spots within the Community Soils OU.
EPA generally considers risk from exposure to lead
unacceptable if more than 5% of the children have
blood-lead levels in excess of 10 μg/dL (EPA 1994c).
Modeling predicted that 5.3% of the children in
Subarea E may have blood-lead levels in excess of
10 μg/dL. Although risk from lead exposure would be
considered marginally unacceptable for exposure in
Subarea E, use of conservative default assumptions
in the IEUBK model have likely overestimated this
risk. Thus, EPA will not address risks to lead at the
Community Soils OU.
Actual or threatened releases of hazardous substances
from individual yards or hot spots, if not addressed by
implementing the response action selected in this
ROD, may present an imminent and substantial endangerment to public health, welfare, or the environment.
6.11.1 ACTION LEVELS
As discussed above, EPA believes that individual
residential areas or hot spots within the Community
Soils OU may pose an unacceptable risk. EPA also
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believes that the exposure estimates, considering
uncertainties, calculated in the risk assessment are
reasonable. Therefore, the range of screening levels
(3 ppm to 297 ppm), that were developed for the targeted
risk range of 1E-04 to 1E-06 in the risk assessment,
are considered to be the appropriate range from which
to select an action level for remediating hot spots.
First EPA determined that the appropriate remediation unit for a residential hot spot is the residential
yard. The residential yard was chosen for the following
reasons:
• Yards are an appropriate remediation management unit (i.e., property ownership);
• It is consistent with previous removal and
remedial actions taken by EPA;
• Allows for consistent remediation of community
and rural residential areas;
• Yards are defined as the unit to be addressed
under the ADLC-DPS; and
• It is not unreasonable for an individual to
remain in one residence for a long period of
time, even a lifetime.
EPA then determined the arsenic action level for
residential surficial soils to be 250 ppm. This corresponds to an excess cancer risk of 8E-05 and is within
EPA’s targeted risk range. Although the 250 ppm
action level departs from EPA’s 1E-06 point of departure, this action level is determined to be protective for
the following reasons:
• The 250 ppm action level reflects detailed sitespecific studies conducted in Anaconda that
significantly reduce the uncertainty of the risk
assessment. These studies provide site-specific
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parameters to replace standard EPA default
assumptions which generates a greater degree
of confidence in the range of screening values.
• The range of screening values were developed
from conservative exposure point concentrations in the risk assessment. Samples collected
for the risk assessment were chosen from areas
likely to contain elevated concentrations, not a
random average of a particular area. These data
potentially elevated the exposure point concentrations adding conservatism to the calculated
screening values.
• The 250 ppm action level is applied to a much
smaller exposure area than those evaluated in
the risk assessment. Although the excess cancer
risk (8E-05) for the 250 ppm action level is
greater than the existing risk range for the subareas (1E-05 to 3E-05), it is applied to a much
smaller exposure area than the subareas that
were evaluated in the risk assessment. This
significantly decreases the chance of averaging
out a higher concentration value within a yard
as compared to the larger subarea.
Cleaning up hot spots in excess of the 250 ppm
action level is expected to reduce the overall risk in
each subarea and the entire community of Anaconda
to close to 1E-05 which approaches EPA’s 1E-06 point
of departure and the State of Montana’s general
goal of protection from environmental carcinogens at
1E-05.
In addition to the above, risk management considerations included the following:
83
• A 250 ppm action level was previously utilized
in a removal action taken under the Community
Soils OU; and
• A 250 ppm level is currently utilized in the
Anaconda-Deer Lodge County Development
Permit System.
• The 250 ppm action level incorporates a balancing of the NCP criteria used to select remedial
actions that are protective, implementable and
cost effective.
An arsenic action level of 500 ppm for surface soils
and waste material in commercial/industrial land use
areas was previously identified in the OW/EADA OU
ROD, and was based in the OW/EADA Baseline Risk
Assessment. For consistency at the Anaconda Smelter
NPL Site, it is EPA’s intent to continue to apply this
action level at remaining commercial/industrial land
use areas through this Community Soil ROD.
6.11.2 ECOLOGICAL RISK ASSESSMENT
Environmental risks were not assessed under this
OU as this is currently being assessed in an ecological
risk assessment under the ARWWS OU.
7.0 DESCRIPTION OF ALTERNATIVES
7.1 SUMMARY OF ALTERNATIVES
A brief description of the site cleanup alternatives
that were considered in the Community Soils RI/FS
Report (AGC 1996a) is provided below. These alternatives, initially presented in the Anaconda Smelter NPL
Site Community Soils RI/FS Work Plan (ARCO 1994),
were identified to meet the CERCLA Section 121
requirements for developing an appropriate range of
options to undergo a detailed analysis. Alternatives
identified in this section were selected based on the
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site conditions, previous remedial actions at residential sites, and the results of previous technology
scoping activities at other Clark Fork River NPL Sites.
These activities included identification, screening, and
evaluation of potential general response actions, remedial technologies, and process options in accordance
with 40 C.F.R.§300.430 (e)(2)-(7).
The alternatives initially identified in the RI/FS
Work Plan were modified in the FS analysis, as a
result of additional information provided by the Soils
Characterization Report and the Final Baseline HHRA.
The alternatives were directed primarily at addressing residential yards, playgrounds and play areas,
vacant lots, and parks where the public may have maximum exposure to contaminants (i.e., hot spots). In
addition, alternatives were also directed at addressing
railroad beds in the community of Anaconda. Alternatives were not developed specifically for commercial/
industrial land use areas in the Community Soils FS.
However, the alternatives developed for residential
areas and railroad beds were appropriate for the
commercial/industrial areas within this site. An
explanation for the inclusion of commercial/industrial
areas within this ROD is found in Section 11.0.
The remedial alternatives evaluated in the FS included
two basic types of response actions: engineering controls
and ICs. For residential soils, engineering controls
included: in-place treatment, capping, and excavation
and removal. ICs included a community education
program designed to maintain existing or new engineering controls and a permitting program designed to
clean up contaminated soils during new residential
construction. For the railroad beds, engineering controls
included: capping, separation barriers, and excavation
and removal. Institutional Controls included private
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property and governmental restrictions. In addition,
the NCP and EPA guidance require EPA to consider a
no action alternative as a baseline against which the
other alternatives are compared.
All alternatives presented in the FS were evaluated
against the nine criteria described in the next section,
and then compared with each of the other options. A
description of the alternatives is provided below.
7.2 DESCRIPTION OF ALTERNATIVES CONSIDERED FOR RESIDENTIAL SOILS
The engineering and ICs identified above for residential soils were developed and refined during the FS
process and assembled into the four alternatives listed
below to provide a range of options from no action
to excavation and disposal. These alternatives were
intended to address residential soils where concentrations of arsenic exceed the final action level (250 ppm)
for residential use. For the purpose of costing alternatives in the FS and the Proposed Plan, 10 to 50 yards
were assumed to exceed the action level. It was also
assumed for costing purposes that soil contamination
is limited to the top several inches of the surface and
the depth of remediation (removal or treatment) would
only need to be implemented to six inches. As noted,
these alternatives are also suitable for addressing
commercial/industrial areas.
Alternative I - No Action
Estimated present worth cost: 0
Implementation time: 0
The NCP and EPA guidance require that EPA consider the no action alternative. This alternative is used
as a baseline against which to compare other alternatives. Under Alternative 1, no further action would be
86
undertaken. Contaminated soils would remain on site.
The risk assessment was conducted to estimate risks
posed by site soil to human health in the absence of a
remedial action. Individual yard areas with elevated
soil arsenic concentrations pose a risk requiring action,
as described in Section 5.0.
Alternative 2 - Institutional Controls
Cost per yard: Not Applicable
Estimated present worth cost: $1,369,325
Implementation time: 6 months
This alternative entails the establishment of a
Community Protective Measures Program (CPMP),
comprised of an educational/informational component
and existing ICs.
The education/informational component of this alternative would involve dissemination of written guidance
for public agencies and residents describing risks and
recommendations for addressing potentially contaminated soil. Information on concentrations of contaminants
and their locations obtained through sampling would
be maintained in a county database for public access.
All soil sampling results and any pertinent changes
in soil concentrations or covers would be recorded for
use by regulators, prospective home buyers, lenders,
contractors, and other interested parties. Additional
educational measures would include the dissemination of materials designed to educate residents on the
importance of maintaining a healthy lawn or adequate
gravel cover on their property if they are within a
designated area.
Existing ICs are those already included in the
ADLC-DPS, within the Superfund Planning Area
Overlay District. The DPS provides guidance on soils
testing, soils remediation, and soils disposal in desig-
87
nated areas through the county’s permit requirements
and inspection procedures.
Alternative 3 - In-Place Treatment, Capping, and
ICs
Cost per yard: $7,541
Estimated present worth cost: $1,394,731 - $1,496,358
Implementation time: 1 year
This remedial alternative consists of treating contaminated soils in residential yards by tilling to a
depth necessary (6 inches assumed for costing purposes) to reduce arsenic concentrations to below the
final risk-based action level for residential soils, and
by adding soil amendments to further reduce the
mobility of any remaining metals in the soil. The area
would then be capped with soil, vegetation, gravel, or
other equivalent barrier to protect the treated area.
The ICs described in Alternative 2 would be used to
promote maintenance of the cap and ensure proper
handling of other soil on site.
Alternative 4 - Excavation and Disposal of
Contaminated Soils and ICs
Cost per yard: $10,089
Estimated present worth cost: $1,420,216 - $1,623,778
Implementation time: 2 years
This alternative would consist of removing contaminated soils (6 inches assumed for costing purposes) in
residential yards above the final risk-based action
level for residential soils and proper disposal in a designated on-site soil management area. Excavated areas
would be backfilled with clean material and capped
with vegetation, gravel, or other equivalent barrier.
The ICs described in Alternative 2 would also be used
88
to promote maintenance of the cap and ensure proper
handling of other soils on site.
7.3 DESCRIPTION OF ALTERNATIVES CONSIDERED FOR RAILROAD BEDS
Three alternatives were developed and refined for
the evaluation of railroad beds within the community
of Anaconda. They are intended to address contaminated materials that were used to construct the railroad
bed on the active railway operated by RARUS Railway
Company, which runs through the residential portion
of Anaconda. Concentrations of arsenic generally exceed
1,000 ppm throughout the profile and length of the
railbed. Risks from these beds are generally limited to
direct contact with contaminated material and the
transport of contaminants to
* * *
8.2 EVALUATING THE RESIDENTIAL SOIL
ALTERNATIVES
The following is a brief summary of the agencies’
evaluation and comparison of residential soil alternatives. Additional details evaluating the alternatives is
presented in the FS. This section evaluates the performance of the residential soil alternatives against the
nine criteria discussed above, and compares it with the
other possible options.
8.2.1 OVERALL PROTECTION OF HUMAN
HEALTH AND THE ENVIRONMENT
This criterion is based on the level of protection of
human health and the environment afforded by each
alternative. All of the alternatives, with the exception
of Alternative 1 (no action), are somewhat protective
of human health and the environment. Although
Alternative 2 is somewhat protective, it only relies on
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compliance with county regulations, does not reduce
arsenic concentrations under existing barriers or
where barriers do not currently exist. Thus, it is not
fully protective of human health and the environment
In contrast, Alternatives 3 and 4 offer highly protective and irreversible remedies which would result in
low residual concentrations of arsenic remaining in
residential areas. Only Alternatives 3 and 4 are
discussed further in this evaluation of alternatives.
The analysis of the other criteria indicate that
Alternative 4 provides the greatest overall protection
of human health with the greatest risk reduction
(clean soil versus treat soil), as compared to Alternative
3. Alternative 4 best approaches EPA’s risk point of
departure at 1E-06 with the replacement of clean soil.
8.2.2 COMPLIANCE WITH APPLICABLE OR
RELEVANT AND APPROPRIATE REQUIREMENTS (ARARs)
This criterion is based on compliance with chemical-,
location-, and action-specific ARARs. Alternatives 3
and 4 both comply with or attain identified state and
federal ARARs.
8.2.3 LONG-TERM EFFECTIVENESS AND
PERMANENCE
This criterion is based on the magnitude of residual
risk and adequacy and reliability of controls. Alternatives 3 and 4 both employ permanent irreversible
actions, resulting in lower arsenic concentrations remaining in the soil. However, Alternative 4 provides for the
greatest reduction in residual concentrations through
removal of contaminated soil and replacement with
clean soil.
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8.2.4 REDUCTION OF TOXICITY, MOBILITY,
OR VOLUME THROUGH TREATMENT
This criterion is based on the treatment process
used, the amount of contamination destroyed or treated,
the reduction of toxicity, mobility, and volume, the
irreversible nature of the treatment, the type and
quantity of residuals remaining, and the statutory
preference for treatment. Only Alternative 3 uses a
treatment process. This treatment (tilling and soil
amendments) is expected to reduce arsenic concentrations in the upper soil surface to below the final riskbased action level and immobilize the arsenic and
other metals present in the soil.
8.2.5 SHORT-TERM EFFECTIVENESS
This criterion is based on the degree of community
and worker protection offered, the potential environmental impacts of the remediation, and the time until
the remedial action is completed. Alternatives 3 and 4
both involve activities that have the potential to
increase short-term risks. Such risks may result from
a potential to generate arsenic-laden dust, to leave
soils exposed for short periods of time, and to increase
traffic of heavy vehicles in a residential area. Of these
two alternatives, Alternative 3 involves a slightly
lesser level of short-term risk, as in-place treatment
will take a shorter time to implement than excavation
and soil replacement, and will involve smaller and
fewer pieces of equipment. However, EPA believes
that any short-term risks associated with Alternatives
3 and 4, although minimal, can be effectively managed
through careful planning and implementation.
8.2.6 IMPLEMENTABILITY
This criterion is based on the ability to perform
construction and implement administrative actions.
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Alternatives 3 and 4 involve administrative and construction activities that will require careful scheduling
and coordination with the county and with homeowners,
who would likely continue to occupy their homes
during remediation. Implementation of Alternative 4
will require the import of soil cover, which would
need to be identified during the design phase. Both
Alternatives 3 and 4 would also require ICs to be
implemented. All of these activities are readily implementable, and there is no real difference among the
alternatives.
8.2.7 COST
Alternative 4 is slightly more expensive than
Alternative 3.
8.2.8 STATE ACCEPTANCE
The State has been consulted throughout this
process and concurs with the Selected Remedy.
8.2.9 COMMUNITY ACCEPTANCE
Public comment on the RI/FS and Proposed Plan
was solicited during a formal public comment period
extending from July 8 to August 9, 1996. Comments
received from the community were generally in support of EPA’s Preferred Alternative (Alternative 4).
Comments from ARCO strongly favor Alternative 3.
8.2.10 SUMMARY
EPA has rated the relative performance of each
alternative with respect to each criterion. Alternatives
are rated to have an advantage (+) or disadvantage (-)
when compared to other alternatives. A zero rating (0)
is applied to an alternative having no distinct advantage
or disadvantage over the other alternatives. The summary of EPA’s rating of residential soil alternatives is
shown in Table 12.
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Of the residential soil alternatives presented in this
ROD, only Alternatives 3 and 4 are fully protective of
human health and the environment and thus, are
discussed further in this section. Alternative 4 reduces
residual soil arsenic concentrations to a greater degree
than Alternative 3 (clean soil versus treated soil). Both
Alternatives offer permanent and irreversible actions.
Alternative 3 employs treatment while Alternative 4
does not. Both Alternatives are readily implementable, have similar short-term impacts, and are
cost effective.
Both Alternatives would require invasive actions in
residential yard areas. Alternative 4 would require
additional action to bring in clean soil. Alternative 3 is
estimated to cost less than Alternative 4, although cost
differences are not considered significant. Sufficient
uncertainty exists with Alternative 3 to require
additional treatability testing to demonstrate cleanup
effectiveness, cost, and implementability issues.
In comparing the relative performance of all criteria
(Table 12), Alternative 4 has a slight advantage
over Alternative 3. However, important differences,
listed below, between the two alternatives have lead
EPA and the State of Montana to strongly prefer
Alternative 4.
Alternative 4 provides the greatest level of
protection and best approaches EPA’s 1E-06
risk point of departure and the State of Montana’s general goal of protection from environmental carcinogens at 1E-05. Note that
although the relative performance rating for
overall protection of human health and the
environment was the same, the differences
described above in regard to a threshold criteria
can be significant.
93
• Alternative 4 utilizes a proven methodology.
Although soil treatment under Alternative 3
has been demonstrated in reducing relatively
high concentrations to moderate levels in large
areas using large equipment, it has not been
demonstrated to be effective for low concentrations, in confined areas using smaller equipment.
Sufficient uncertainty exists with the implementability, effectiveness, and cost of Alternative 3.
• Cost differences between Alternative 4 and 3
are not significant in comparison to the benefits
described above.
* * *
9.0 SELECTED REMEDY
Based upon consideration of CERCLA requirements, the detailed analysis of alternatives, and public
comments, EPA has determined that the Preferred
Alternative as presented in the Proposed Plan, with
important modifications, is the appropriate remedy for
the Community Soils OU. Modifications include specifying commercial/industrial soils for remediation in
addition to residential soils and railroad bed materials, as presented in the Proposed Plan. This Selected
Remedy will reduce risk to human health through the
following:
• Reduction of surface soil arsenic concentrations
to acceptable levels, and
• Prevention of direct human contact with waste
materials (i.e., railroad beds).
While certain other alternatives may better satisfy
certain individual selection criteria, the Selected Remedy
best meets the entire range of selection criteria and
achieves, in EPA’s determination, the appropriate
94
balance considering site-specific conditions and criteria
identified in CERCLA and the NCP, as provided in
Section 10.0, Statutory Determinations.
9.1 REMEDY FOR RESIDENTIAL SOILS
The Selected Remedy will address all remaining
residential soils within the site, through the following:
1. Clean up all current residential soils within the
Anaconda Smelter NPL Site that exceed the residential action level of 250 ppm soil arsenic concentration,
through removal and replacement with clean soil and
a vegetative (e.g., new sod or seed) or other protective
barrier (e.g., asphalt pavement, concrete sidewalks).
• Residential soils include yards, parks, school
grounds, or other play areas. Also included are
barren driveways, alleys, or other common
areas adjacent to yards which may contribute to
the contamination of yards and which may be
frequented by children.
• Based on soils characterization in the RI/FS
report, all current and reasonably anticipated
future residential areas within the Anaconda
Smelter NPL Site that are estimated to exceed
250 ppm soil arsenic concentration, have been
identified as the “Focus Area” for cleanup
(Figure 4 and Exhibit 1).
• The cleanup activities will be directed toward or
initiated in residential areas that are within the
Focus Area.
• The cleanup activities will provide for opportunistic sampling and remediation of potentially
contaminated soils outside the Focus Area (i.e.,
individual areas that exceed 250 ppm soil
arsenic concentration, or areas suspected of
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having contaminated material present from the
railroad bed or other sources) on a limited basis.
• Residential soils to be cleaned up (those that
exceed 250 ppm soil arsenic concentration) will
be determined by sampling. Consideration will
also be given to the permanence of existing
barriers and ICs (e.g., use restrictions, maintenance, etc.) in determining which residential
soils will be remediated.
• In areas where soil removal is to be implemented, only the depth of soil that is greater
than 250 ppm soil arsenic concentration, to a
maximum of 18 inches, will be removed (Figure
8). The maximum 18-inch depth is based upon
possible activities that might be conducted in a
yard (i.e., garden, play area or other excavation).
• In areas where site-specific conditions dictate
that removal is not implementable (i.e., yard
size, topography, rocks, trees, etc.), other measures (i.e., capping, tilling, ICs, etc.) will be
taken to reduce arsenic concentrations to below
the 250 ppm action level or prevent exposure.
• Removed soils will be disposed of in a
designated on-site soil management area.
2. Implement ICs to clean up future residential
areas.
• Clean up all future residential soil areas within
the Focus Area that exceed the residential
action level of 250 ppm soil arsenic concentration at the time of development, through the
ADLC-DPS. The ADLC-DPS will continue to
require soil sampling at all new residential
construction within the Superfund Planning
96
Area Overlay District. Soils exceeding the 250
ppm soil arsenic concentration will be cleaned
up through the DPS with preference given to
removal.
• The current ADLC Superfund Planning Area
Overlay District will be expanded, where
necessary, to include the Focus Area.
• In areas where site-specific conditions dictate
that removal is not implementable, other measures (i.e., capping, tilling, ICs, etc.) will be
taken to reduce arsenic concentrations to below
the 250 ppm action level or prevent exposure.
3. Implement ICs to provide educational information to all residents describing potential risks and
recommendations to reduce exposure to remaining
contaminated soils.
• Develop a CPMP, to be managed by ADLC, to
provide educational information to residents
within the ADLC Superfund Planning Overlay
District describing risks and recommendations
to reduce exposure to residual contaminants
(>250 ppm) in soils (i.e., the importance of
maintaining a healthy lawn or other protective
cover).
• Information on soil arsenic concentrations and
locations will be maintained in an ADLC database for public access. All sampling results and
pertinent changes in soils and condition of
existing covers will be recorded for use by
regulators, prospective home buyers, lenders,
contractors, and other interested parties.
4. Institute operation and maintenance activities as
necessary.
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* * *
9.4 CLEANUP LEVELS
The purpose of this response action is to control
risks posed by direct contact with all residential soils
and waste materials (i.e. railroad beds) within community areas of the Anaconda Smelter NPL Site. Although
the results of the risk assessment indicate that risks
calculated for each subarea are all within EPA’s
targeted risk range, individual yards within a subarea
having elevated concentrations of arsenic (i.e., hot
spots) could preferentially pose an unacceptable risk
to those residents. In addition, rural residential areas
that were not adequately sampled to allow a calculation of risk, may also have hot spots that could pose an
unacceptable risk. Thus, EPA believes a remedial
action is necessary to address those individual residential areas or hot spots within the Community Soils
OU.
Since no federal or state ARARs exist for soil arsenic
or waste material, an action level was determined
through site-specific analysis. The analysis used the
Final Baseline HHRA (CDM Federal 1996a) to develop
a range of screening levels that corresponded to risks
within EPA’s target risk range of 1E-04 to 1E-06. The
action level for residential soils is 250 ppm soil arsenic
concentration. This corresponds to an excess cancer
risk of 8E-05 and is within EPA’s targeted risk range.
All residential soils in excess of the action level will
be addressed by the Selected Remedy. In individual
yards where the Selected Remedy is implemented, the
cleanup level is expected to approach 1E-05 with the
replacement of clean soil. In addition, cleaning up
individual yards in excess of the 250 ppm action level
is expected to reduce the overall risk in each subarea
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and the entire community of Anaconda to close to 1E05 which approaches EPA’s 1E-06 point of departure
and the State of Montana’s general goal of protection
from environmental carcinogens at 1E-05.
The action level for commercial/industrial soils is
500 ppm soil arsenic concentration. This corresponds
to an excess cancer risk of approximately 6E-05 and is
within EPA’s targeted risk range. This action level is
a continued application of the commercial/industrial
action level established under the OW/EADA ROD
(EPA 1994a). Although no areas were identified in the
RI/FS, both current and future properties may be
identified during Remedial Design. Commercial/
industrial areas where the Selected Remedy is implemented, the cleanup level at the surface is expected to
approach 1E-05 through the use of engineered covers.
No action level was developed for addressing the
railroad bed materials within the community of
Anaconda. Concentrations of arsenic throughout the
profile of the railbed material generally exceed 1000
ppm. Because the railbed material is located within
the community of Anaconda, the above action levels of
250 and 500 ppm for residential and commercial/
industrial areas, respectively, are applied to the railbed
material. Where the Selected Remedy is implemented
to railbed material, the cleanup level at the surface
is expected to approach 1E-05 through the use of
engineered covers.
9.5 REMEDIATION REQUIREMENTS
The remediation requirement for residential soils is
to reduce surface arsenic concentrations to below 250
ppm. The remediation requirement for contaminated
railroad bed materials is to prevent direct contact
with, and reduce potential for erosion and transport
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of, contaminated material to residential areas. The
specific remediation requirements of the Selected
Remedy are to:
• Reduce soil arsenic concentrations in residential areas to below 250 ppm through removal
and replacement with clean soil and a vegetative or other protective barrier.
-
Current residential areas with soils exceeding 250 ppm soil arsenic concentration
shall be identified through sampling during
Remedial Design. Existing barriers and ICs
(e.g., use restrictions, maintenance, etc.) will
also be evaluated to identify soils requiring
remediation.
-
All identified residential soils exceeding 250
ppm soil arsenic concentration shall be
removed to a maximum depth of 18 inches.
-
Clean soil, as determined by EPA, shall be
used to replace removed soils. Soils shall be
of sufficient quality to support a vegetative
or other protective barrier.
-
Protective barriers shall be designed to
protect the replaced soils and/or provide an
effective and permanent barrier to contaminated soils or waste materials.
-
Vegetative barriers shall be of sod or seed in
consideration of land use.
-
Removed soils shall be disposed of in a
protective manner.
• Reduce arsenic concentrations at the surface to
below 500 ppm in current industrial or commercial areas using a combination of Revegetation
techniques and/or engineered covers.
-
-
100
Revegetation techniques, which may include
deep tilling, lime additions, or soil amendments, shall be implemented to reduce
surface soil arsenic concentrations to below
500 ppm and establish a diverse, effective,
and permanent vegetative cover.
Engineered covers shall be designed to
provide an effective and permanent barrier
to waste materials. Soil covers shall be
stabilized with Revegetation that provided a
diverse, effective, and permanent cover.
• Develop ICs to restrict and manage future land
use.
-
Assure that future land use at the site is
consistent with EPA’s determination of the
health and environmental risks posed by
contaminants left on site.
-
Provide for the preservation and maintenance of Superfund remedial structures on
the site, including but not limited to caps,
beams, waste repositories, and vegetated areas.
-
Require that future development at the site
employ construction practices that are consistent with the protection of public health
and the environment, as determined by
Superfund remedial actions.
-
Remedied, as development occurs at the site,
soil arsenic contamination to levels appropriate for the intended use, as determined by
Superfund remedial actions.
-
Provide for implementation of other laws
applicable to development, such as subdivision and floodplain requirements.
101
• Design engineered covers to prevent direct
contact with, and reduce potential for erosion
and transport of, contaminated railroad bed
materials.
-
Engineered covers shall be designed to
provide an effective and permanent barrier
to waste materials.
• Design engineered barriers to restrict access to
railroad bed and to control surface runoff.
-
Barriers shall be designed to prevent contaminated railbed material from eroding to
adjacent residential areas.
* * *
102
Figure 1
Anaconda Smelter NPL Site Location Map
with Approximate Site Boundary
* * *
103
1.0 INTRODUCTION
The U. S. Environmental Protection Agency (EPA)
has prepared this Responsiveness Summary in conjunction with the Record of Decision (ROD) to document
and respond to issues and comments raised by the public regarding the Remedial Investigation/Feasibility
Study (RI/FS) and the Proposed Plan for the Community Soils Operable Unit (OU) of the Anaconda Smelter
National Priorities List (NPL) Site. Comments were
received during the Public Comment Period from
July 8 through August 9, 1996. These comments, and
responses to them, are outlined in this document. By
law, the EPA must consider public input before
making a final decision on a cleanup remedy. Once
public comment is addressed, the final decision on a
cleanup remedy will be documented in the ROD.
1.1 COMMUNITY INVOLVEMENT BACKGROUND
EPA has conducted community involvement activities
for the Community Soils OU in accordance with state
and federal laws and EPA Superfund guidance
documents. From the beginning of the RI/FS process
for the Community Soils OU, EPA has conducted
community relations activities and sought the involvement of the public and the Potentially Responsible
Party (PRP), Atlantic Richfield Company (ARCO).
1.2 PUBLIC MEETING PUBLICITY
Press releases were sent to The Anaconda Leader to
announce each public meeting and the Public Comment
Period. The public meetings were then advertised in
this newspaper. Print advertisements were display style,
conspicuously large (quarter page), and were placed in
a widely-read section of the paper.
104
1.3 ADMINISTRATIVE RECORD
The Administrative Record is the set of documents
identified for the Community Soils OU upon which the
selection of the remedy is based. The Administrative
Record is required by the Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (CERCLA) §113(k). The Administrative Record
(on microfilm) is available for public review at the
Hearst Free Public Library in Anaconda, and the
Montana Tech Library in Butte, with the complete
Administrative Record located at the EPA Records
Center in Helena.
1.4 DOCUMENT REPOSITORIES
Key documents relating to the Community Soils OU
are also available at the Hearst Free Public Library in
Anaconda and at the EPA Records Center in Helena.
* * *
105
[Anaconda Regional Water, Waste, and
Soils OU ROD (Sept. 1998)]
RECORD OF DECISION
ANACONDA REGIONAL WATER, WASTE,
AND SOILS OPERABLE UNIT
Anaconda Smelter National Priorities List Site
Anaconda, Montana
106
SEPTEMBER 1998
U.S. Environmental Protection Agency and
Montana Department of Environmental Quality
107
DECLARATION
SITE NAME AND LOCATION
Anaconda Smelter NPL Site
Anaconda. Deer Lodge County Montana
Anaconda Regional Water. Waste. and Soils
ARWW&S) Operable Unit (OU)
CERCLIS ID #MTD 093291656
STATEMENT OF BASIS AND PURPOSE
This decision document presents the Selected Remedy
for the last OU, the ARWW&S OU, of the Anaconda
Smelter NPL Site in Deer Lodge County, Montana.
EPA. with the concurrence of MDEQ, selected the
remedy in accordance with CERCLA and the NCP.
This decision is based on the Administrative Record
for the ARWW&S OU of the Anaconda Smelter NPL
Site. The Administrative Record ton microfilm) and
copies of key documents are available for public review
at the Hearst Free Library. located on the corner of
Fourth and Main in Anaconda. Montana. and at the
Montana Tech Library in Butte. Montana. The complete Administrative Record may also be reviewed at
the EPA Records Center in the Federal Building, 301
South Park, in Helena. Montana.
The State of Montana concurs with the Selected
Remedy, as indicated by its signature.
ASSESSMENT OF THE SITE
Actual or threatened releases of hazardous substances
at and from the ARWW&S OU, if not addressed by
implementing the response action selected in this
ROD. may present an imminent and substantial endangerment to public health. welfare, or the environment.
108
DESCRIPTION OF THE SELECTED REMEDY
The ARWW&S OU is the fifth OU to receive remedial action at the Anaconda Smelter NPL Site. The
first remedial action. taken at the Mill Creek OU,
involved the relocation of residents from the community of Mill Creek after other initial stabilization and
removal efforts. The second remedial action. taken
at the Flue Dust OU, addressed flue dust at the
site through removal, treatment. and containment. At
approximately the same time. removal actions were
undertaken, including permanent removal and disposal
of Arbiter and beryllium wastes and the selective
removal of contaminated residential yard materials
from the community of Anaconda. The third remedial
action addressed various waste sources found within
the Old Works/East Anaconda Development Area
(OW/EADA) OU, located adjacent to the community of
Anaconda. and in areas of future development, and
followed an initial removal action in the same area.
Certain wastes within the OW/EADA OU received an
engineered cover, including the Red Sands waste
material and the Heap Roast slag piles. while others
were consolidated and/or covered. including the floodplain wastes and miscellaneous waste piles. In addition.
the third action allowed economic development (i.e.
construction or a golf course in the Old Works area)
and provided the final response action at the Mill
Creek OU.
The fourth remedial action, the Community Soils OU,
addressed all remaining residential and commercial/
industrial soils within the Anaconda Smelter NPL
Site. The principal contaminant of concern (COC) at
the Community Soils OU is arsenic in surficial soils
from past aerial emissions and railroad beds constructed of waste material.
109
This remedial action at the ARWW&S OU will
address all remaining cleanup decisions for the Anaconda
Smelter NPL Site. It will also address potential
impacts to surface and ground water from soils and
waste sources such as tailings and slag as well as
human and environmental risks associated with arsenic
contaminated soils that have not been addressed by
other response actions.
The Selected Remedy for the ARWW&S OU is comprised of several remedies for the waste media types
found throughout the OU. The major components of
these remedies are described below.
Soils and Waste Materials
Major components of the remedy for contaminated
soils and waste material include:
• Reduction of surficial arsenic concentrations
to below the designated action levels of 250
parts per million (ppm), 500 ppm, and 1,000
ppm through a combination of soil cover or in
situ treatment.
• Reclamation of the soils and waste area contamination by establishing vegetation capable
of minimizing transport of COCs to ground
water and windborne and surface water erosion
of the contaminated soils and waste areas. This
vegetation will also provide habitat consistent
with surrounding and designated land uses.
• Partial removal of waste materials followed by
soil cover and revegetation for areas adjacent
to streams. Removed material will be placed
within designated Waste Management Areas
(WMAs).
110
Ground Water
Major components of the remedy for ground water
include:
• For alluvial aquifers underlying portions of the
Old Works and South Opportunity Subareas,
clean up to applicable State of Montana water
quality standards through use of soil covers and
removal of sources (surface water) to ground
water contamination and natural attenuation.
• For the bedrock aquifers and a portion of the
alluvial aquifer in the Old Works/Stucky Ridge
and Smelter Hill Subareas, waiver of the
applicable ground water standard. The aquifers
underlying these subareas cannot be cost
effectively cleaned up through reclamation, soil
cover, or removal of the sources (wastes, soils,
and tailings) of the around water contamination. Reclamation of soils and waste source
areas with revegetation is required, which will
contribute to minimizing arsenic and cadmium
movement into the aquifers.
• For portions of the valley alluvial aquifers underneath the Old Works/Stucky Ridge, Smelter
Hill, and Opportunity Ponds Subareas where
around water is underlying waste-left-in-place,
point-of-compliance (POC) monitoring to ensure
contamination is contained at the perimeter
boundary of the designated WMA. Should POC
monitoring show a spread of contaminants beyond
the boundary of a WMA. institute treatment
options for the ground water where practicable.
111
Surface Water
Major components of the remedy for surface water
include:
• Reclamation of contaminated soils and engineered storm water management options to
control overland runoff into surface waters.
• Selective source removal and stream bank stabilization to minimize transport of COCs from
fluvially deposited tailings into surface waters.
Removed material will be place within a designated WMA.
Institutional Controls (ICs) and Operations and
Maintenance (O&M)
• The remedy will employ ICs and long-term
O&M for the OU to ensure monitoring and
repair of implemented actions. These actions
will be coordinated through development of an
ICs Plan and O&M Plan and will allow for
communication with local government and
private citizens. The plans will function as a
tracking system for the agencies and describe
and plan for potential future land use changes.
• The remedy calls for a fully-funded ICs program
at the local government level. The AnacondaDeer Lodge County (ADLC) government will be
responsible for on-going oversight of O&M in
the OW/EADA OU, implementation of a countywide Development Permit System (DPS), and
provision of public information and outreach
through a Community Protective Measures
program.
• In addition, the remedy will bring closure to
previous response actions within the site that
112
are already implemented. such as the Flue Dust
remedy or the Old Works remedy, primarily
through long term O&M for some or all of those
actions which are integrated into this remedy.
Remedial Design/Remedial Action Management
The ARWW&S OU encompasses a very large area.
with Remedial Action slated for approximately 20.000
acres. The size of the OU and the focus on land reclamation as the key remedy will require management
tools during Remedial Design/Remedial Action (RD/RA)
activities to help direct. prioritize. and sequence
response actions and allow for changing community
interests. Management of the OU can be accomplished
with the following elements:
• Site Management Plan (SMP) - The SMP will
provide a framework for future RD/RA activities
and will incorporate remedial unit designations
and sequencing criteria for the RD/RA actions.
• Historic Preservation and Mitigation Plan Final implementation of the Regional Historic
Preservation Programmatic Agreement will be
accomplished. Separate agreements to address
tribal cultural resources will be included.
• Wetlands Mitigation - Assessment and mitigation of impacts to wetlands from implementation
of the remedy and communications with U.S.
Fish and Wildlife Service will be coordinated.
The Selected Remedy will achieve reduction of risk
to human health and the environment through the
following:
• Preventing human ingestion of, inhalation of
dust from, or direct contact with, contaminated
soil and/or waste media where such ingestion or
113
contact would pose an unacceptable health risk
for the designated land use.
• Stabilization of contaminated soil and waste
material against wind and surface erosion.
• Minimizing transport of contaminants
ground water and surface water receptors.
to
STATUTORY DETERMINATIONS
The Selected Remedy is protective of human health
and the environment, complies with federal and state
requirements that are legally applicable or relevant
and appropriate to the remedial action, and is cost
effective. This remedy uses permanent solutions (e.g.,
reclamation, soil removal and engineered covers) and
alternative treatment technologies to the maximum
extent practicable for this site.
Since hazardous substances above health-based risk
levels will remain on site (in WMAs), periodic reviews
will be conducted throughout the remedial action and
upon its completion to ensure that the remedy continues to provide adequate protection of human health
and the environment.
/s/ Max H. Dodson
Max H. Dodson, Assistant Regional Administrator
Ecosystems Protection and Remediation
U.S. Environmental Protection Agency, Region VIII
9/29/98
Date
/s/ Mark A. Simonich
Mark A. Simonich, Director
Montana Department of Environmental Quality
9/28/98
Date
114
* * *
4.0 SCOPE AND ROLE OF OPERABLE UNIT
The Anaconda Smelter NPL Site is currently organized with respect to the following actions:
• Anaconda Smelter Demolition and Initial
Stabilization Actions;
• Mill Creek Children Relocation Removal Action;
• Mill Creek Relocation Remedial Action;
• Anaconda Yards Time Critical Removal Action;
• Arbiter Non-Time Critical Removal/Beryilium
Non-Time Critical Removal Action and Repository Construction;
• Old Works Stabilization Removal Action;
• Flue Dust Remedial Action;
• OW/EADA Remedial Action;
• Community Soils Remedial Action; and
• ARWW&S OU Remedial Action.
The actions were prioritized based on their potential
risk to human health and the environment. Mill Creek
was considered the highest priority and EPA relocated
Mill Creek residents in 1988. Since then. EPA has also
taken action at several other areas. including, Flue
Dust. Arbiter. Beryllium. OW/EADA, and Community
Soils. These actions were prioritized for action based
on principle threat human health risks (Flue Dust),
immediate economic development requirements (OW/
EADA), and potential exposure of remaining residents
to elevated arsenic soil concentrations (Community
Soils).
115
As noted in Section 2.0. Operable Unit History and
Enforcement Activities, the site has been organized
and OUs prioritized since 1988. with the Conceptual
Site Management Plan attached to the AOC V111-8816. This order was formally revised in October 1995.
with the Community Soils and ARWW&S OUs identified for remaining ROD completion. A brief description
of the ARWW&S OU is provided below:
The ARWW&S OU combines the former ARWW,
Anaconda Soils, and Smelter Hill OUs in a final sitewide RI/FS. Independent Remedial Actions will not be
required under the Anaconda Soils and Smelter Hill
OUs. The ARWW&S OU is intended to be the last
comprehensive OU of the Anaconda Smelter NPL Site
by addressing all remaining issues not addressed
under other remedial actions. This OU will continue to
address potential impacts to surface and ground water
from soils and waste sources such as tailings and slag.
This OU will address both the human and environmental risks associated with site-related contamination
that have not been addressed by other OUs.
The purpose of the RIs and FS Deliverables for the
ARWW&S OU was to gather sufficient information to
support informed risk management decisions for
remediation of all the remaining human and ecological
health risks at the Anaconda NPL Site. The RIs and
FS Deliverables were performed in accordance with
the NCP, 40 CFR Part 300, arid CERCLA.
The objectives of the RIs and the r5 Deliverables
were to:
• characterize to the extent necessary, the nature
anti extent of arsenic and metal contamination
in soil, waste material, surface water, ground
116
water and air in each subarea and area or
concern throughout the ARWW&S OU:
• identify potential receptors. exposure pathways
and food chain relationships;
• estimate human health and ecological risk due
to exposures to arsenic and metal contaminated
media;
• identify the current or reasonably anticipated
future land use that may require development
of remedial alternatives;
• screen and evaluate each of the remedial action
alternatives defined in the FS deliverables
against the NCP remedy selection criteria (40
CFR §300.430); and
• compare the relative performance among each
alternative with respect to the evaluation
criteria.
The remedy outlined in this ROD is intended to be
the final remedial action for the ARWW&S OU. It is
also intended to be the final remedial action for all
remaining waste in the Anaconda Smelter NPL Site.
117
[Administrative Order for Remedial Action
(Community Soils OU, Residential Soils
Remedial Design Unit)
(Aug. 21, 2002)]
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY REGION VIII
————
EPA Docket No. CERCLA-08-2002-08
————
IN THE MATTER OF:
ANACONDA SMELTER SUPERFUND SITE,
COMMUNITY SOILS OPERABLE UNIT,
RESIDENTIAL SOILS
REMEDIAL DESIGN UNIT
ATLANTIC RICHFIELD COMPANY,
Respondent.
————
PROCEEDING UNDER SECTION, 106(a) OF THE
COMPREHENSIVE ENVIRONMENTAL
RESPONSE, COMPENSATION, AND LIABILITY
ACT, AS AMENDED, 42 U.S.C. § 9606(a).
————
ADMINISTRATIVE ORDER
FOR REMEDIAL ACTION
————
118
TABLE OF CONTENTS
I.
Introduction and Jurisdiction
II.
Findings of Fact
III.
Conclusions of Law and Determinations
IV.
Notice to the State
V.
Order
VI.
Definitions
VII. Notice of Intent to Comply
VIII. Parties Bound
IX.
Work to Be Performed
X.
Failure to Attain Performance Standards
XI.
EPA Periodic Review
XII. Additional Response Actions
XIII. Endangerment and Emergency Response
XIV. EPA Review of Deliverables
XV. Reporting Requirements
XVI. Quality Assurance, Sampling, and Data
Analysis
XVII. Compliance with Applicable Laws
XVIII. Remedial Project Manager
XIX. Access and Data/Document Availability
XX. Record Preservation
XXI. Assurance of Ability to Complete Work
XXII. United States Not Liable
XXIII. Enforcement and Reservations
XXIV. Effective Date and Computation of
Time
XXV. Opportunity to Confer
1
1
2
3
3
3
5
5
6
8
8
8
9
9
10
11
12
12
14
15
15
16
16
17
18
119
ATTACHMENTS
Exhibit 1. Record of Decision for Community Soils
Operable Unit, September 25, 1996
Exhibit 2. Residential Soils Remedial Design
Unit Remedial Action Work Plan/Final
Design Report, July 19, 2002
I. INTRODUCTION AND JURISDICTION
1. This Order directs Respondent to perform a remedial action for the Residential Soils Remedial Design
Unit, which is within the Community Soils Operable
Unit (CS OU) of the Anaconda Smelter Superfund
Site. This Order is issued to Respondent by the United
States Environmental Protection Agency (EPA) under
the authority vested in the President of the United
States by section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, 42 U.S.C. § 9606(a), as amended (CERCLA).
This authority was delegated to the Administrator of
EPA on January 23, 1987, by Executive Order 12,580,
52 Fed. Reg. 2,923, and was further delegated to
EPA Regional Administrators on September 13, 1987,
by EPA Delegation No. 14-14-B. This authority
has been further delegated to the Assistant Regional
Administrator, Office of Ecosystems Protection and
Remediation.
II. FINDINGS OF FACT
2. The Respondent, the Atlantic Richfield Company
(ARCO), is a corporation doing business in the State of
Montana. It is currently organized under the laws of
the State of Delaware. Respondent is an affiliate of BP
Corporation North America, Inc.
120
a. The Respondent is now, and has been since on
or about 1977, the owner and operator of the
“facility,” as defined below.
b. As a result of one or more mergers, restructurings, transfers of assets, continuations of business
activities, or other corporate action, the Respondent
is the successor-in-interest to, and has assumed the
liabilities incurred by the Anaconda Copper Mining
Company and/or its subsidiaries and related corporations or businesses, including historical predecessors.
3. Pursuant to section 105 of CERCLA, 42 U.S.C.
§ 9605, EPA placed the Anaconda Smelter Superfund
Site, including the CS OU, on the National Priorities
List set forth at 40 C.F.R. Part 300, Appendix B, by
publication in the Federal Register on September 8,
1983, 48 Fed. Reg. 40658.
4. EPA divided the Site into operable units (OUs),
including the CS OU, for response.
5. From 1995 to 1996, ARCO, with EPA oversight,
undertook a Remedial Investigation and Feasibility
Study (RI/FS) for the CS OU, pursuant to CERCLA and
the National Oil and Hazardous Substances Pollution
Contingency Plan, 40 C.F.R. Part 300 (NCP).
6. Studies performed as part of the RI/FS for the CS
OU documented the presence, release, and threat of
release of arsenic, cadmium, and lead in residential
soils.
7. These studies documented that humans are at
risk from exposure through the inhalation pathway to
the contaminated residential soils. Additional information on the human health risks at the CS OU is
presented in the Final Baseline Human Health Risk
Assessment for the CS OU, January 1996.
121
8. In accordance with section 117 of CERCLA, 42
U.S.C. § 9617, EPA published notice of the completion
of the FS and of the proposed plan for remedial action
on July 8, 1996 and provided an opportunity for public
comment on the proposed remedial action.
9. EPA’s remedial: action decision for the CS OU is
embodied in a Record of Decision (ROD), executed on
September 25, 1996 with concurrence by MDEQ,
Exhibit 1. The ROD is supported by an administrative
record that contains the documents and information
upon which EPA based the selection of the response
action.
10. EPA divided the CS OU into remedial design
units (RDUs). The Residential Soils RDU consists of
all soils in current residential areas anywhere within
the Anaconda Smelter Superfund Site, an area of
approximately 300 square miles in southern Deer
Lodge Valley, including the town of Anaconda and
surrounding foothills.
11. From about October 1996 to July 2002, ARCO,
with EPA oversight, completed the Remedial Action
Work Plan/Final Design Report (RAWP/FDR) for the
Residential Soils RDU, pursuant to Administrative
Order on Consent, Docket No. CERCLA-VIII-88-16,
Amendment 11.
12. EPA’s remedial design and remedial action
decision for the Residential Soils RDU is embodied in
the Final Remedial Action Work Plan/Final Design
Report, Exhibit 2 (RAWP/FDR), approved on July 19,
2002, with concurrence by MDEQ.
13. This Order addresses all soils in current residential areas within the Residential Soils RDU.
122
III. CONCLUSIONS OF LAW AND
DETERMINATIONS
14. Based on the preceding Findings of Fact and the
administrative record for the Site, EPA has made the
following conclusions of law and determinations:
a. The Site, the CS OU, and the Residential Soils
RDU are “facilities” as defined in section 101(9’) of
CERCLA, 42 U.S.C. § 9601(9);
b. Respondent is a “person” as defined in section
101(21) of CERCLA, 42 U.S.C. § 9601(21);
c. Respondent is a liable party under sections 104
and 107 of CERCLA, 42 U.S.C. §§ 9604 and 9607,
and is subject to this Order under section 106(a) of
CERCLA, 42 U.S.C. § 9606(a);
d. Substances found at the Site, the CS OU, and
the Residential Soils RDU are “hazardous substances” as defined in section 101(14) of CERCLA,
42 U.S.C. § 9601(14);
e. The presence of hazardous substances at the
Site, including the CS OU and the Residential; Soils
RDU, and the past, present, or potential future
migration of hazardous substances described in
Section II of this Order constitutes an actual or
threatened “release” as defined in section 101(22) of
CERCLA, 42 U.S.C. § 9601(21);
f. The actual or threatened release of one or more
hazardous substances from the facilities may present an imminent and substantial endangerment to
public health or welfare or the environment; and
g. The actions required by this Order are necessary to protect the public health and welfare and the
environment.
123
IV. NOTICE TO THE STATE
15. EPA has notified the State of Montana (State),
through the Montana Department of Environmental
Quality (MDEQ), of this action pursuant to section
106(a) of CERCLA, 42 U.S.C. § 9606(a), and provided
for State involvement in the initiation, development,
and selection of the remedial action, and will continue
to provide for State involvement in design and implementation of the remedy, in accordance with section
121(f) of CERCLA, 42 U.S.C. § 9621(f). All EPA decisions under this Order will be made in consultation
with MDEQ. EPA is the lead agency for coordinating,
overseeing, and enforcing the response action required
by this Order.
V. ORDER
16. Respondent is hereby ordered to comply with all
requirements of this Order, including but not limited
to all attachments to this Order and all documents
incorporated by reference into this Order.
VI. DEFINITIONS
17. Unless otherwise expressly provided herein, terms
used in this Order which are defined in CERCLA or in
regulations promulgated under CERCLA shall have
the meaning assigned to them in CERCIA or such
regulations. Whenever terms listed below are used in
this Order or in the documents attached to this Order
or incorporated by reference into this Order, the
following definitions shall apply:
“Contractor” means any person, including the
contractors, subcontractors, consultants, or agents
retained or hired by Respondent to undertake any
Work under this Order.
124
“Day” means calendar day. In computing any period
of time under this Order, where the last day would
fall on a Saturday, Sunday, or federal holiday, the
period shall run until the end of the next working
day. Time will be computed in accordance with Rule
6 of the Federal Rules of Civil Procedure, unless
otherwise specified.
“Deliverable” means any written product, including
but not limited to, plans, reports, memoranda, data,
and other documents that Respondent must submit
to EPA under this Order.
“NCP” means the National Oil and Hazardous
Substances Pollution Contingency Plan promulgated under section 105 of CERCLA, 42 U.S.C.
§ 9605, and codified at 40 C.F.R. Part 300, including
any amendments thereto.
“Operation and Maintenance” or “O&M” means
all activities required under the Operation and
Maintenance Plan presently being developed by
Respondent as required under Administrative: Order
on Consent, Docket No. CERCLA-VIII-88-16, Amendment 13. Upon approval by EPA, the portions of that
Operations and Maintenance Plan applicable to the
Residential Soils RDU are incorporated by reference
and become enforceable as part of this Order.
“Order” means this Order, the exhibits attached to
this Order, the EPA-approved work plan, and all
documents incorporated into this Order by reference
or according to the procedures set forth herein.
“Performance Standards” means those cleanup standards, standards of control, and other substantive
requirements, criteria or limitations, identified in
the CS OU ROD, Exhibit 1, and/or the Residential
Soils RAWP/FDR, Exhibit 2, that the remedial
125
action and other Work performed under this Order
must attain and maintain.
“Record of Decision” or “ROD” means the EPA
Record of Decision for the CS OU of the Anaconda
Smelter Superfund Site, executed on September 25,
1996, and all attachments thereto, attached hereto
as Exhibit 1, and incorporated herein by reference.
“Remedial Action” or “RA” means those activities,
except for operation and maintenance, to be undertaken by Respondent to implement the final plans
and specifications embodied in the Residential Soils
RAWP/FDR, including any additional activities
required under Sections X, XI, X11, XIII, and XIV of
this Order.
“Remedial Design” or “RD” means the Residential
Soils RAWP/FDR, attached hereto as Exhibit 2, and
incorporated herein by reference.
“Site” means all current residential soils within the
Anaconda Smelter Superfund site, as more particularly described in the ROD, Exhibit 1, and the
Residential Soils RAWP/FDR, Exhibit 2.
“Work” means all activities Respondent is required
to perform under this Order, including remedial
action, operation and maintenance, and any other
activities necessary to fulfill the requirements of
this Order.
VII. NOTICE OF INTENT TO COMPLY
18. ARCO shall provide, not later than 7 days after
the effective date of this Order, written notice to the
EPA Remedial Project Manager stating whether it will
unconditionally and unequivocally comply with this
Order. If Respondent does not unconditionally and
unequivocally commit to perform the Work as pro-
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vided by this Order, it shall be deemed to have violated
this Order and to have failed or refused to comply with
this Order. Respondent’s written notice shall describe,
based on facts that exist on or prior to the effective
date of this Order, any “sufficient cause” defenses
asserted by Respondent under sections 106(b) and
107(c)(3) of CERCLA, 42 U.S.C. §§ 9606(b) and
9607(c)(3). The absence of a response by EPA to the
notice required by this Paragraph shall not be deemed
to be acceptance of Respondent’s assertions.
VIII. PARTIES BOUND
19. This Order shall apply to and be binding upon
Respondent and its directors, officers, employees, agents,
successors, and assigns. No change in the ownership,
corporate status, or other control of Respondent, nor
any transfer of assets or real or personal property by
the Respondent, shall alter any of the Respondent’s
responsibilities under this Order.
20. During the period in which this Order is in
effect, Respondent shall provide a copy of this Order to
any prospective owners or successors before a controlling interest in Respondent’s assets, property rights,
or stock is transferred to the prospective owner or
successor. Respondent shall provide a copy of this
Order to each contractor and laboratory retained to
perform any Work under this Order, within 5 days
after the effective date of this Order or on the date
such services are retained, whichever date occurs later.
Respondent shall also provide a copy of this Order to
each person representing Respondent with respect to
the Work and shall condition all contracts and subcontracts entered into hereunder upon performance of the
Work in conformity with this Order. Each contractor
retained to perform. Work shall be deemed to be
related by contract to Respondent within the meaning
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of section 107(b)(3) of CERCLA, 42 U.S.C. § 9607(b)(3).
Notwithstanding the terms of any contract, Respondent
is responsible for compliance with this Order and for
ensuring that its contractors comply with this Order,
and perform any Work in accordance with this Order.
21. Within 7 days after the effective date of this
Order Respondent shall record a copy or copies of
this Order in the appropriate governmental office
where land ownership and transfer records are filed or
recorded, and shall ensure, if possible, that the
recording of this Order is indexed to the titles of each
and every property at the Site so as to provide notice
to third parties of the issuance and terms of this Order
with respect to those properties. Respondent shall,
within 14 days after the effective date of this Order,
send notice of such recording and indexing to EPA.
22. Not later than 30 days prior to any transfer of
any real property interest in any property included
within the Site, Respondent shall submit a true and
correct copy of the transfer document(s) to EPA, and
shall identify the transferee by name and principal
business address and effective date of the transfer.
IX. WORK TO BE PERFORMED
23. Respondent shall prepare, implement, perform,
and complete all actions required by this Order,
including all actions required under approved plans,
in accordance with the standards, criteria, specifications, requirements, and schedule set forth herein and
in the Residential Soils RAWP/FDR, Exhibit 2. All
Work under this Order is subject to oversight by and
the prior approval of EPA. Undertaking any on-Site
physical activity without prior approval of EPA is a
violation of this Order.
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24. All Work shall be conducted and completed in
accordance with CERCLA, the NCP, ‘pertinent’ EPA
guidance, and any amendments thereto which become
effective prior to the date of completion of Work under
this Order. Respondent shall be responsible for identifying and using other guidelines, policies, procedures,
and information that may be appropriate for performing Work.
25. All Work shall be consistent with the ROD and
the Performance Standards set forth in the ROD and
the Residential Soils RAWP/FDR, Exhibit 2, including
all applicable or relevant and appropriate requirements. Notwithstanding any action by EPA, Respondent
remains fully responsible for achievement of the
Performance Standards. Nothing in this Order, nor in
EPA’s approval of any document prepared by EPA
under this Order, shall be deemed to constitute a warranty or representation of any kind by EPA that full
performance of the RA action will achieve Performance Standards. Respondent’s compliance with such
approved documents does not foreclose EPA from seeking
additional Work to achieve Performance Standards.
26. Respondent shall employ sound scientific, engineering, and construction practices in performing Work
under this Order. All tasks shall be under the direction
and supervision of qualified personnel with experience
in the types of tasks required for implementation of
the Work.
27. All Work shall be under the direction and supervision of a qualified project manager. Within 10 days
after the effective date of this Order, Respondent shall
notify EPA in writing of the name, address, telephone
number, and qualifications of the project manager and
the identity and qualifications of the primary support
entities, staff, and contractors proposed to be used in
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carrying out Work under this Order. If at any time
Respondent proposes to use a different project manager, support entities, staff, or contractors, Respondent
shall notify EPA and provide similar information at
least 14 days before such persons perform any Work
under this Order.
28. EPA will review Respondent’s selection of and
changes in project manager, support entities, staff, or
contractors according to the terms of this Section and
Section XIV of this Order. If EPA disapproves of the
selection of a project manager, support entities, staff,
or contractors, Respondent shall submit to EPA within
14 days after receipt of EPA’s disapproval, a list of
project managers, support entities, staff; or contractors that would be acceptable to Respondent. EPA will
thereafter provide written notice to Respondent of the
names that are acceptable to EPA. Respondent may
then select any approved name or names from that list
and shall notify EPA of its selection(s) within 14 days
of receipt of EPA’s written notice.
29. Respondent shall, no later than 10 days prior to
any off-Site shipment of hazardous substances from
the Site to an out-of-State waste management facility,
provide written notification of such shipment of hazardous substances to the appropriate state environmental
official in the receiving state, to EPA, and to MDEQ.
However, the notification of shipments shall not apply
to any off-Site shipments when the total volume of all
shipments from the Site to the state will not exceed 10
cubic yards.
a. The notification shall be in writing, and shall
include the following information: (1) the name. and
location of the facility to which hazardous substances are to be shipped; (2) the type and quantity
of hazardous substances to be shipped; (3) the expected
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schedule for the shipment of the hazardous substances;
and (4) the method and route of transportation.
Respondent shall notify EPA, MDEQ, and the
receiving state of major changes in the shipment
plan, such as a decision to ship the hazardous
substances to another facility within the same state
or to a facility in another state.
b. The identity of the receiving facility will be
determined by Respondent at the earliest possible
time. Respondent shall provide all relevant information, including the information noted above, as
soon as practicable after a decision is reached, but
in no event later than the time specified in this
Paragraph.
30. Respondent shall cooperate with EPA in providing information regarding the Work to the public. If
requested by EPA, Respondent shall participate in the
preparation of such information for distribution. to the
public and in public meetings which may be held or
sponsored by EPA to explain activities at or relating to
the Site.
X. FAILURE TO ATTAIN
PERFORMANCE STANDARDS
31. In the event that EPA determines that response
activities in addition to those set forth in the Residential Soils RAWP/FDR, Exhibit 2, are necessary to
attain Performance Standards or accomplish the selected
remedy for the Residential Soils RDU, EPA may notify
Respondent that additional response actions are
necessary.
32. Unless otherwise stated by EPA, within 30 days
of receipt of notice from EPA that additional response
activities are necessary to meet Performance Standards,
Respondent shall submit for approval by EPA a
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work plan for the additional response activities. The
plan shall conform to the applicable requirements
of Sections IX, XVI, and XVII of this Order. Upon
EPA’s approval of the plan pursuant to Section XIV,
Respondent shall implement the plan for additional
response activities. in accordance with the provisions
and schedule contained therein.
XI. EPA PERIODIC REVIEW
33. Under section 121(c) of CERCLA, 42 U.S.C.
§ 9621(c), and any applicable regulations, EPA may
review the RA to assure that the Work performed pursuant to this Order adequately protects human health
and the environment. Respondent shall conduct the
studies, investigations, or other response actions determined necessary by EPA for EPA to conduct its review.
As a result of any review performed under this Paragraph, Respondent May be required to perform additional
Work or to modify Work previously performed.
XII. ADDITIONAL RESPONSE ACTIONS
34. EPA may determine that work, in addition to
that identified in this Order, may be necessary to
protect human health and the environment. If EPA
determines that additional response activities are
necessary, EPA may require Respondent to submit a
work plan for additional response activities. EPA may
also require Respondent to modify any plan, design, of
other deliverable required by this Order, including any
approved deliverable.
35. Not later than 30 days after receiving EPA’s
notice that additional response activities are required
pursuant to this Section, Respondent shall submit a
work plan for the response activities to EPA for review
and approval. Upon approval by EPA, the work plan is
incorporated into this Order as a requirement of this
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Order and shall be an enforceable part of this Order.
Upon approval of the work plan by EPA, Respondent
shall implement the work plan according to the standards, specifications, and schedule in this Order and
the approved work plan.
Respondent shall notify EPA of its intent to perform
such additional response activities within 7 days after
receipt of EPA’s request for additional response activities.
XIII. ENDANGERMENT AND
EMERGENCY RESPONSE
36. In the event of any action or occurrence during
the performance of the Work which causes or threatens to cause: a release of a hazardous substance or
which may present an immediate threat to public health
or welfare or the environment, Respondent shall immediately take all appropriate action to prevent, abate,
or minimize the threat and shall immediately notify
EPA and MDEQ. If neither the EPA Remedial Project
Manager nor the Alternate Project Manager are available, Respondent shall notify the EPA Emergency
Response Branch, EPA Region VIII. Respondent shall
take such action in consultation with the EPA Remedial
Project Manager and in accordance with all applicable
provisions of law and of this Order. In the event that
Respondent fails to take appropriate response action
as required by this Section, and EPA takes action
instead, Respondent shall reimburse the United States
for all costs of the response action not inconsistent
with the NCP. Respondent shall pay the response
costs in the manner described in Section XXII of this
Order.
37. Nothing in the preceding Paragraph shall be
deemed to limit any authority of the United States to
take, direct, or order any action to protect human
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health and the environment or to prevent, abate, or
minimize an actual or threatened release of hazardous
substances on, at, or from the Site.
XIV. EPA REVIEW OF DELIVERABLES
38. After review of any deliverable which must be
submitted for review and approval pursuant to this
Order, EPA may: (a) approve the submission, (b) approve
the submission with its own modifications, (c) disapprove
the submission and direct Respondent to re-submit
the document after incorporating EPA’s comments, or
(d) disapprove the submission and assume responsibility for performing all or any part of the response
action. As used in this Order, the terms “approval by
EPA,” “EPA approval,” or similar term means the
action described in phrases (a) or (b) of this Paragraph.
39. In the event of approval or approval with modifications by EPA, Respondent shall proceed to take
any action required by the deliverable, as approved or
modified by EPA.
40. Upon receipt of a notice of disapproval or a
request for a modification, Respondent shall, within 7
days or such time as specified by EPA in its notice of
disapproval or request for modification, correct the
deficiencies and resubmit the deliverable for approval.
Notwithstanding the notice of disapproval, or approval
with modification, Respondent shall proceed, at the
direction of EPA, to take any action required by any
non-deficient portion of the deliverable.
41. Any failure of Respondent to obtain full approval
of a deliverable when required is a violation of this
Order.
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XV. REPORTING REQUIREMENTS
42. Respondent shall submit to EPA and MDEQ
monthly progress reports containing, at a minimum,
the following information:
a. A description of actions taken to comply with this
Order, including plans and actions completed, during
the previous month;
b. A description of problems encountered and any
anticipated problems, any actual or anticipated. delays,
and solutions developed and implemented to mitigate
any problems or delays;
c. Any change orders, nonconformance repo
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