Opposition Brief — Shoshone-Bannock Tribes v. United States

No. 00-1262 | APR 6 2001

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IN THE |

Supreme Court of the United States

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SHOSHONE-BANNOCK TRIBES,

Petitioner.

UNITED STATES, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION FOR RESPONDENT

FMC CORPORATION

RALPH H. PALUMBO

Counsel of Record

DaviD HEINECK

SuMMIT LAw Group

Attorneys for Respondent

FMC Corporation

1505 Westlake Avenue North

Suite 300

Seattle, Washington 98109

(206) 281-9881

166330 ce}

COUNSEL PRESS

(800) 274-3321 + (800) 359-6859

1

STATEMENT PURSUANT TO RULE 29.6

Respondent, FMC Corporation, has no parent

corporation and no publicly held company owns 10% or more

of its stock.

il

TABLE OF CONTENTS

Page

Statement Pursuant to Rule 29.6 ............... i

cy ke reer rn ree rr re ery Ty il

Table of Cited Authorities ................045. iil

Statement of the COMP ick cis dea <adueuasnee’ l

I. Consent Decree Negotiations. ........... 2

II. Consent Decree Requirements. .......... 4

Reasons for Denying the Writ ................. 8

I. The Tribes’ Factual Assertions are Unsup-

eer rn ey cr ere Cre 8

II. The Decision Below Does Not Conflict with

Decisions by this Court. ............cee0, 8

COMCIIOIE oo 6. doc ke an wnanes a eee 10

a

iil

TABLE OF CITED AUTHORITIES

Page

Statute:

42 U.S.C. § 6901 Pa eed a Aa eb ata ae ee ee l

Other Authorities:

40 C.F.R. § 49.10711 (65 Fed. Reg. 51412, August

Ce aaa a ee go ee a ae ore nee 4

oc es dee seesaw ewes ee een 5

63 Fed. Reg. 58770 ......... Ay Pena ee 3

63 Fed. Reg. 66582 ....... noe . . OP 3

PORE Rs Be tn aE

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STATEMENT OF THE CASE

We supplement the facts in the Petition as follows. Since

1947, FMC Corporation (“FMC”) has owned approximately

1,500 acres of land near Pocatello, Idaho (the “FMC

Property”). The FMC Property is located near the eastern

boundary of the Shoshone-Bannock Fort Hall Indian

Reservation, with approximately 1,000 of those acres lying

within the Reservation. The FMC Property is not owned by

the United States for the benefit of the Shoshone-Bannock

Tribes (“Tribes”) or any of their members, is not owned in

fee by the Tribes or any of their members, and is not leased

by the United States to the Tribes or FMC. Non-Indians own

most of the land immediately north, west and east of the FMC

Property in fee. Very few people live on the land surrounding

the FMC Property and nearly all of those people are non-

Indians.

Since 1949, FMC has used the FMC Property, including

both on-reservation lands and off-reservation lands, for

operation of FMC’s Pocatello elemental phosphorus plant

(the “FMC Pocatello Plant”)! Mineral processing wastes

generated at the FMC Pocatello Plant first became subject

to the Resource Conservation and Recovery Act (“RCRA”)

hazardous waste regulations in September 1989 and January

1990.? (ER 1 at 9 8.) Because RCRA is not retroactive, these

1. FMC transferred ownership and operation of the Pocatello

facility to Astaris Idaho LLC, a joint venture formed by FMC and

Solutia, Inc., in April 2000. The consent decree that is the subject of

the Shoshone-Bannock Tribes’ current petition requires a number of

environmental measures at the Pocatello facility. FMC remains

obligated to carry out these consent decree requirements

notwithstanding the facility transfer to Astaris.

2. RCRA, 42 U.S.C. § 6901, was enacted in 1976 but

implementing regulations did not become effective until

(Cont’d)

2

requirements apply only to FMC’s storage, treatment and

disposal of mineral processing wastes generated after

September 1989.

I. Consent Decree Negotiations.

In January 1997, the United States notified FMC that it

intended to bring an action against FMC in the United States

District Court for the District of Idaho for violations of

RCRA. The United States Environmental Protection Agency

(“EPA”), the United States Department of Justice (“DOJ”)

and FMC began settlement negotiations. The Tribes,

represented by Tribal attorneys, environmental experts and

Tribal members, participated actively in the settlement

negotiations, and made specific requests to the United States

and FMC regarding requirements the Tribes wanted to be

included as part of any settlement between the United States

and FMC. (CR 8 at 17; CR 15 at 4-6, 17-18.) The United

States supported many requirements requested by the Tribes,

and those requirements became key elements of the Consent

Decree, including: (a) the requirement that FMC remove and

treat wastes placed in Pond 18; (b) more stringent capping

requirements for ponds; (c) pond management requirements

designed to minimize risks associated with operation of

ponds, including electronic leak detection, perimeter gas

monitoring, and bird protection measures; (d) certain

requirements of the air emission reduction Supplemental

(Cont'd)

November 19, 1980. Until 1989, FMC Pocatello Plant mineral

processing wastes were exempt from RCRA hazardous waste

regulations under the Bevill Amendment. In September 1989 and

January 1990, certain of FMC’s mineral processing wastes became

subject to RCRA, with the remaining portion still exempt under the

Bevill Amendment. (ER 1 at § 18.)

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Environmental Projects (SEPs); and (e) the Tribal Health

Assessment SEP. (CR 15 at 14, 18.) In every case, the Tribes’

requested requirements were the subject of discussion and

negotiation before a decision was made to include, or not

include, the Tribes’ request as a Consent Decree requirement.

(CR 23 at 2.)

In October 1998, the United States and FMC reached a

settlement agreement, the terms of which are set forth in the

Consent Decree. On October 16, 1998, the United States filed

its Complaint and lodged the proposed Consent Decree.

The United States then published a notice regarding the

Consent Decree and its availability for public comment in

the Federal Register on November 2, 1998. 63 Fed. Reg.

58770. Notices of the Consent Decree and public comment

period were also published in the Jdaho State Journal and in

the Sho-Ban News, the Tribes’ newspaper. (SER 1.) At the

request of the Tribes, the United States extended the initial

30-day period for public comment for an additional 15 days,

extending the comment deadline from December 3, 1998 to

December 18, 1998. 63 Fed. Reg. 66582.

EPA received written public comments and held public

meetings on the Consent Decree in the City of Pocatello and

at the Fort Hall Indian Reservation. The United States also

met with representatives of the Tribes’ Business Council.

EPA and DOJ responded in writing to all public comments,

including all comments received from the Tribes and Tribal

members. See United States v. FMC Corporation, Inc.

Proposed Consent Decree: Response to Public Comments.

(SER 1-126.)

4

Il. Consent Decree Requirements.

The Consent Decree covers only violations alleged in

the Complaint relating to storage, treatment and disposal of

FMC’s mineral processing wastes generated after September

1989 and January 1990, the dates on which FMC’s mineral

processing wastes first became subject to the RCRA

hazardous waste regulations. Other environmental impacts

of the FMC Pocatello Plant operations are being addressed

under the Comprehensive Environmental Response

Compensation and Liability Act (EPA has issued a Record

of Decision, currently being reviewed to address Tribal

concerns, that will require remedial actions to address soil

and groundwater contamination from historic releases of

hazardous substances), the Clean Air Act (EPA has issued a

Federal Implementation Plan that sets specific emission limits

and air monitoring requirements for the Pocatello facility’),

the Clean Water Act and other State and federal statutes.

The RCRA Consent Decree requires FMC to (1) make

more than $150 million in capital improvements and

operating changes that will assure full RCRA compliance at

the FMC Pocatello Plant according to specific compliance

schedules set forth in the Consent Decree; and (2) perform

Supplement Environmental Projects not otherwise required

by State or federal law that will reduce particulate air

emissions from the FMC Pocatello Plant by approximately

67%, and that will fund a $1.65 million health assessment

of the Shoshone-Bannock Tribes Fort Hall Reservation

residents — a study the Tribes approved and will manage

jointly with FMC.

3. 40 C.F.R. § 49.10711 (65 Fed. Reg. 51412, August 23, 2000).

5

The Consent Decree is a settlement of disputed claims.

FMC does not admit the violations alleged in the Complaint,

or even that its wastes are subject to regulation under RCRA,

and the United States has not proven the truth of its

allegations. See ER at 33, “Whereas” clause at 2.‘

EPA determined that the Consent Decree’s requirements

are protective of human health and the environment. For

example, RCRA permits closure of ponds either by removing

the wastes or by leaving the wastes in place and installing an

appropriate protective cap. 40 C.F.R. § 265.22. Prior to

approving closure in place and capping of FMC ponds, EPA

determined that (1) it would be technically difficult to remove

and treat wastes already disposed in ponds; (2) it would not

be safe to remove pond wastes off-site for treatment; (3) the

risk associated with leaving the wastes in place was minimal;

and (4) groundwater, soil and sediment sampling data

confirmed that the wastes stored in active ponds were not

migrating from the ponds and contaminating groundwater

or surface water. (SER at 17-18.) To provide an added level

of assurance, the Consent Decree requires FMC to install

4. In order to secure the injunctive relief provided by the

Consent Decree, the United States would have to establish first that

FMC’s wastes are “ignitable” or “reactive” wastes subject to

regulation under RCRA. Under RCRA, a solid waste is “hazardous”

if it is listed as such in the RCRA regulations, or if the waste exhibits

certain “characteristics” such as those for “ignitability” or

“reactivity”. RCRA does not list FMC’s wastes as hazardous; and

the RCRA regulations do not specify a test method for “ignitability”

or “reactivity” that apply to FMC’s wastes. (SER at 135.) FMC if

necessary would litigate the classification of its wastes as ignitable

or reactive and, given the lack of prescribed test methods and

numerical standards for making these designations, would expect to

prevail on its position that the Pocatello wastes are not ignitable or

reactive characteristic wastes.

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caps that are more protective than normally required for

RCRA closure. The cap design selected by EPA is comparable

to those used for radioactive waste landfills which may be

dangerous for thousands of years. (SER at 18-19.)

Further, the Consent Decree requires that FMC cease

placing wastes in ponds by no later than May 2002. This

requirement ensures compliance with the RCRA land

disposal restrictions (“LDRs’”), which prohibit the placement

of hazardous wastes on land unless the wastes comply with

EPA-specified treatment levels. The Consent Decree

specifically requires FMC to design and construct a waste

treatment plant that will achieve LDR treatment standards

applicable to the FMC Pocatello Plant wastes, to commence

operation of the LDR treatment plant by May 2002, and

thereafter to permanently cease placing wastes in ponds. (ER

at 84-85.)

To protect human health and the environment during the

time the ponds are in operation prior to May 2002,

the Consent Decree requires FMC to comply with the

EPA-approved Pond Management Plan and other

requirements of the Consent Decree. (ER at 86.) The Tribes

participated actively in formulating the Pond Management

Plan requirements. The Pond Management Plan requires

actions such as installation of monitoring equipment around

the ponds and at the Facility fence line to measure and record

emissions of toxic gases, contingency measures in the event

that toxic gases exceed human health criteria, implementation

of worker safety measures, implementation of operational

changes that will reduce the potential for toxic gas emissions,

installation of video cameras for continuous real-time

surveillance of the ponds, expansion of existing fencing

7

around the ponds, and installation of nets or other devices to

prevent migratory birds from landing on the ponds. (ER at

86:) EPA determined that compliance with the Pond

Management Plan would be protective of human health and

the environment. See SER at 10-14. Moreover, with

knowledge of the Consent Decree requirements, the Tribes

granted permits to FMC for its construction and continued

use of ponds for waste storage. On April 13, 1998, FMC

obtained a-special use permit for the ponds from the Tribal

Land Use Policy Commissioners, subject to payment of a

$1 million startup fee and a $1.5 million annual permit fee

payable to the Hazardous Waste Program of the Tribes Land

Use Department. (CR 15 at 14-15.)

As part of the Consent Decree, FMC agreed to spend

over $65 million on Supplement Environmental Projects

(“SEPs’’) that will reduce particulate air emissions from the

FMC Pocatello Plant by approximately 67%. SEPs are

environmentally beneficial projects, not otherwise required

by applicable federal, state or local laws or regulations, that

FMC agreed to perform in exchange for partial reduction in

the civil penalty amount assessed under the Consent Decree.

At the outset of the Consent Decree negotiations, the Tribes

and EPA told FMC they were interested primarily in SEPs

that would reduce particulate air emissions from the Pocatello

Plant significantly in advance of the effective date of the

Federal Implementation Plan for the Pocatello region. (CR 15

at 15-17.) FMC responded by developing 13 air emission

reduction projects to be incorporated in the Consent Decree

as SEPs. The scope of each project was negotiated with and

accepted by EPA Region 10 air officials, with input from the

Tribes. Most of these SEPs have already been installed or

otherwise carried out.

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Finally, the Consent Decree requires FMC to spend $1.65

million to fund a joint study, managed by FMC and the Tribes,

to assess the human health effects on residents of the Fort

Hall Reservation from the FMC Pocatello Plant releases of

hazardous substances. The study is included in the Decree

as a SEP. (ER 32.)

REASONS FOR DENYING THE WRIT

I. The Tribes’ Factual Assertions are Unsupported.

The Tribes’ Petition for Writ of Certoriari alleges that

FMC’s Pocatello Plant mineral processing wastes are

“ignitable” or “reactive” hazardous wastes subject to

regulation under RCRA. Tribes’ Petition at 3. This assertion

is unproven. Supra at page 5, n.4. The Tribes also misperceive

the scope of the Consent Decree as covering 50 years of FMC

Pocatello Plant operations, including past and future air

emissions, and historic releases of hazardous substances.

Tribes’ Petition at 3, 5. The Consent Decree is limited in

scope to hazardous waste management and in time to FMC’s

waste management after RCRA requirements became

applicable in September 1989. And the Tribes’ Petition is

based on the assumption that measures adequate to protect

the general public’s health and the environment will not be

equally protective of Tribal health and the environment. There

is no evidence in the record to support this assumption.

II. The Decision Below Does Not Conflict with Decisions

by this Court.

The United States and FMC agreed to the Consent

Decree, thereby avoiding litigation between the parties that

could have resulted in fewer, less restrictive requirements

9

than those set forth in the Consent Decree. EPA agreed to

the Consent Decree after diligent, good faith consultations

with the Tribes, and after determining that the Consent

Decree would be protective of human health and the

environment. The Tribes were present and participated in

negotiatons between the United States and FMC regarding

the environmental requirements of the Consent Decree.

Indeed, many Consent Decree requirements were included

at the specific request of Tribal representatives. While the

Tribes believe the Consent Decree is not perfect in every

respect, they failed to offer the District Court evidence that

the Consent Decree is not reasonable, and protective of Tribal

human health and the environment. Moreover, the record in

this case establishes that the United States fulfilled its

fiduciary duties to the Tribes by consulting extensively with

the Tribes regarding Consent Decree requirements, including

the Tribes in negotiations with FMC, and including many

requirements requested by the Tribes.

The District Court entered the Consent Decree having

considered all relevant law and material facts, including all

objections to the Consent Decree made by the Tribes.

The District Court found no legal or factual basis to refuse

to enter the settlement that the United States Environmental

Protection Agency and the Department of Justice determined

to be a reasonable and environmentally protective means to

assure that the FMC Pocatello Plant operates in compliance

with RCRA.

The Ninth Circuit reviewed the District Court’s decision

and determined that the United States had appropriately

discharged its fiduciary duties to the Tribes. Contrary to the

Tribes’ assertion, the Ninth Circuit decision does not establish

“an extraordinary exception to its [the United States]

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established fiduciary duties to Indian tribes.” Tribes’ Petition

for Certiorari at 6. Rather, the Ninth Circuit’s decision is

consistent with the decisions of other Courts of Appeal and

this Court regarding the fiduciary duties of the United States

to Indian tribes.

CONCLUSION

For the foregoing reasons FMC respectfully requests that

this petition for certiorari be denied.

Respectfully submitted,

RALPH H. PALUMBO

Counsel of Record

Davip HEINECK

SumMIT Law Group

Attorneys for Respondent

FMC Corporation

1505 Westlake Avenue North

Suite 300

Seattle, Washington 98109

(206) 281-9881