# Opposition Brief — Shoshone-Bannock Tribes v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 532 U.S. 1019

## Text

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.)

3

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.

6

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.

8

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]

10

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0778%3A4. Public record. Not legal advice.