Company ordered to pay Idaho tribes for toxic waste storage

credit photo: idahostatejournal.com

BOISE, Idaho (AP) — An agribusiness company that turned phosphate into fertilizer must pay $1.5 million in permit fees annually to eastern Idaho tribes to store millions of tons of toxic waste on tribal lands, a federal court has ruled.

Chief U.S. District Court Judge B. Lynn Winmill in a 33-page order on Thursday granted a request by the Shoshone-Bannock Tribes to enforce a tribal court decision imposing the permit fees on FMC Corp.

Winmill ruled that FMC previously consented to tribal jurisdiction and agreed to the $1.5 million in annual waste storage fees before challenging them in tribal court and declining to pay them starting in 2002 after closing the fertilizer plant.

“FMC’s arguments that its cadre of attorneys had no idea they were agreeing to a permit fee with no expiration date is ludicrous,” Winmill wrote.

The ruling awards the tribe $19.5 million for unpaid permit fees from 2002 to 2014, about $1 million in attorney fees and says FMC is obligated to pay $1.5 million annually in perpetuity to continue to store the waste.

The tribe said FMC hasn’t paid permit fees for 2015, 2016 and 2017, and that it will seek through the courts to get those payments as well as future payments.

“The tribes are committed to continuing their effort to protect and preserve the environment for the health and welfare of inhabitants,” Nathan Small, chairman of the Shoshone-Bannock Tribes, said in a statement. “The tribes believe in protecting Mother Earth for all future generations.”

FMC, which has offices around the world with its corporate headquarters in Philadelphia, said in a statement Friday to The Associated Press that it will appeal the decision to the 9th U.S. Circuit Court of Appeals.

“FMC is disappointed in the District Court’s decision, which failed to follow legal principle established by the United States Supreme Court,” the company said.

From 1949 to 2002, the company operated the fertilizer plant that is now part of a Superfund site. It produced 22 million tons of waste stored on Shoshone-Bannock Tribes Fort Hall Indian Reservation. That includes, the court said, burying about 21 tanker rail cars containing phosphorus sludge rather than cleaning up the toxic material.

Winmill wrote that FMC agreed to tribal jurisdiction and the $1.5 million annual permit fee to store the waste stemming from a consent decree with the Environmental Protection Agency rather than face fines and giant cleanup fees while the plant was still operating.

“That was a sweetheart deal and FMC was desperate to grab it,” Winmill wrote.

The company contends that it’s no longer obligated to pay the permit fees with the 2002 closing of the plant. But Winmill said the fees are for storing the waste and whether the plant is operating isn’t relevant.

The waste “will persist for decades, generations even, and is so toxic that there is no safe method to move it off-site,” Winmill wrote.

The Environmental Protection Agency said it’s not technologically feasible to remove the toxic material, and an attempt at such an undertaking would cost $4.7 billion. The EPA is spending $47 million over 30 years to manage the waste in an attempt to prevent it from contaminating air and water.

Phosphate mining continues to be a major business in southeastern Idaho where phosphate ore is turned into fertilizer needed by farmers to grow food. The area contains one the nation’s most abundant deposits of phosphate, and agribusinesses Simplot and Monsanto have mines in the area. But the area also contains 17 Superfund sites because of pollution from past phosphate mining.

Experts say the area is rich in phosphate because it was once a 116,000-square-mile (300,440-square-kilometer) inland sea where organic material from fish, plants and small animals was deposited over a 5-million-year span about 265 million years ago.

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Kissingen Spring

At one time the Historic Kissengen Spring discharged up to 20 million gallons of water a day into the Peace River. The spring’s pool was 200 feet in diameter and reached a depth of 17 feet above the spring vent.

Its boil reportedly was so powerful that the strongest swimmer could not reach it. Archaeological evidence shows this area of the Peace River was inhabited by Native Americans who established large villages near the river’s springs. In the late 1800s developers sought to acquire the spring as a resort destination and sanatorium. Although plans for rail lines, trolleys, and boats never were realized to exploit the spring for tourism, a dance floor, dive platform, and bathhouses were built, and thousands of locals and tourists visited over 75 years.

In the 1930s the popular spring was the site of major political rallies. During World War II, it served as a rest and recuperation resort for members of the military based near Bartow. The spring ceased to be a tourist destination after its groundwater was captured for other uses.

The spring vent was plugged in 1962, and it ceased to flow again. Read more here.

To learn more about the destruction of aquifers and running dry, read the USGS research here.

We Believe That

  • The Peace River Heartland, a name for the area of central Florida which includes Hardee, DeSoto, Manatee and Charlotte Counties, has a unique, much varied, and valuable character. If this area is to be discovered by future generations, it must be preserved.
  • The safety and well-being of the citizens of our area is more important than the profits of the phosphate industry.
  • The preservation of native and agricultural lands is of great importance for our well-being, but even more, for the well-being of those who would live here in the future.
  • Permanent alteration of our land is not corrected by reclamation or mitigation, as the soils and aquifers are so extremely rearranged.
  • What goes into the ground here in the Peace and Myakka River watersheds can potentially end up in our wells or in Charlotte Harbor at the end of the stream.
  • Industrial chemicals have no place in our soils with our near surface aquifers.
  • We have a responsibility to all future generations to leave our natural environment as intact, rich and varied as we found it, if not better.
  • Someone must care. This means that a value beyond money must prevail.
  • That profit and preservation can coexist. This is Florida, a land of tourism, and we are part of it.
  • The Peace River Heartland, known to the phosphate industry as “Bone Valley“, has a unique natural and agricultural character which has many superior alternatives to phosphate strip mining.

The Peace River Heartland

People for Protecting Peace River encourages all forms of outdoor activities, including recreational fishing and hiking because people need to have fun!

The Canoeing, Kayaking, and Outdoors Capital of Florida

The Hardee County Visioning Report mentioned “blue ways” as a good way to highlight the importance of the Peace River Heartland of Hardee, Desoto, Manatee and Charlotte Counties. In no way is a blue way more important than in providing drinking water, but we believe having the support of people who love the river for recreation is just as important.

People living and visiting on vacation love spending their day in their kayaks. As the you get to experience the Peace River outdoors related water sports, you’ll know why we see more new small business opening such as kayak shops, cafes, and more.

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