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The battle for the facts about the Clark Fork clean-up

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An ongoing lawsuit against the state by an Atlantic Richfield Co. subsidiary could have broad implications for the release of information and public attendance at meetings between state and federal agencies.

The concern stems from a ruling this fall by Helena U.S. District Judge Charles Lovell that allows the Montana Department of Environmental Quality (DEQ) to keep reams of Clark Fork River basin documents from ARCO Environmental Remediation and the public, and to hold key meetings about basin cleanup strategy behind closed doors.

In his ruling, Lovell says state officials can withhold environmental background information and close related meetings because of a confidentiality agreement DEQ signed with the U.S. Environmental Protection Agency in 1985. Lovell added that federal law in this instance supersedes the right-to-know provision of Montana’s Constitution, as well as the state’s open meeting law.

Lovell also granted a state request to have EPA named as a co-defendant in the case, a move ARCO has vigorously protested. He also noted that ARCO in 1989 unsuccessfully sued DEQ’s predecessor, the Montana Department of Health and Environmental Sciences, over the agency’s refusal to disclose other Superfund-related materials. Records show Lovell issued the adverse ruling in that case in 1991.

Lovell’s latest decision prompted the company in October to file an emergency motion with the U.S. Ninth Circuit Court of Appeals that seeks to overturn the ruling, which DEQ contends is intricately tied to related federal and state lawsuits filed against ARCO for past damage in the basin by the Anaconda Mining Co. ARCO inherited Anaconda’s assets and liabilities when it merged with the company in 1977. The polluted area represents the largest federal Superfund site in the nation.

In April, U.S. District Judge Paul Hatfield of Great Falls approved a $260 million negotiated settlement between ARCO, EPA, the state and the Confederated Salish and Kootenai Tribes, which claim mining pollution has damaged part of their homeland. Under the agreement, which resolved most but not all of the outstanding legal claims, the state is to be paid about $215 million. The tribes and the federal government will share the rest.

As part of clean-up plans, the river basin has been broken into several segments under the federal Superfund law. A major part of the process involves the development of environmental risk assessments, which attempt to document specific damages believed to have been caused by mining, smelting and the disposal of related wastes. The assessment essentially acts as the blueprint for exactly what gets cleaned up, and especially important, to what extent and standard.

At immediate issue is the draft assessment being prepared for the area between the Warm Springs Ponds and the head of Milltown Reservoir. While EPA says the 1,000-page draft will be released to the public later this month, ARCO wants to see the background details that shaped the document’s conclusions.

According to EPA and the state, however, the information ARCO seeks cannot be released because it is “enforcement-related” and “pre-decisional” in nature. Documents show state attorneys also contend ARCO is primarily interested in its own financial health and is using the lawsuit as an “artful” way of avoiding liability and circumvent past legal actions.

“There is also a strong monetary interest since the exposure from financial commitments required by a state under [federal Superfund law] is directly dependent upon the remedial actions selected for a site,” DEQ attorneys wrote in one brief.

ARCO attorneys, in turn, are accusing state officials of trying to “hide out” in federal court so they don’t have to release information to the public. The lawsuit was initially filed into state district court in Helena, but state attorneys argued that it was the federal government, and not DEQ, that required the confidentiality. As a result of the state’s pleadings, the case was transferred to the federal level.

Lawsuit documents show ARCO also attempted to have the risk-assessment material released under the federal Freedom of Information Act, but EPA officials refused.

“In short, by attending closed meetings with EPA from which it knew in advance the public would be barred, DEQ deliberately deprived [the company’s subsidiary] and other members of the public of their constitutional right to observe the deliberations of state government,” ARCO argues in its lawsuit. “Such actions are antithetical to a major cornerstone of Montana’s 1972 Constitution—the right to know what government is doing.”

ARCO officials say they have special reason to see the material because they believe some of the state’s research is flawed. As partial proof, they gave Lovell a copy of notes from one state fisheries consultant that claimed the state’s proposed damage study was lacking in “hard” evidence, and that without an unimpaired stream to contrast damages to, the results would be “sleight-of-hand tricks in court.”

“If it is decided that all of the parts of the illusion will give an edge over the opposition, then it may be money well-spent,” the consultant’s notes read. “But it is all style over substance.”

The Ninth Circuit Court is expected to rule on the case within the next few months.

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