FMC back in tribal court system April 1
by Daniel Moore
Press Staff Writer
FMC Corporation, which owned a former phosphate processing plant in Power County, is splitting into two companies. The company expected to take over the former site, including the EPA-mandated cleanup process, will be called FMC Minerals.
The other company, called New FMC, will take over the FMC Agricultural Solutions and FMC Health and Nutrition segments. It will be next year before the change is complete, said Paul Yochum, FMC consultant and former plant manager.
This is not the first time FMC has split. In 1996 the company’s machinery and chemical divisions parted ways. In 2000, the FMC site in Power County became part of a joint effort between FMC and Monsanto Company. Called Astaris, the new company failed shortly before market concerns closed the plant and FMC assumed control of the site.
FMC deals primarily in chemicals, and last year had sales of approximately $3.9 billion. About 5,600 people work for FMC in various sites around the world.
Each company will be expected to pick up the liabilities of the sites attached to their company, Yochum said. The former FMC site in Power County is more aligned with the ongoing mineral process holdings, and so FMC Minerals is expected to take it over; however things may change as the companies separate over the next year, he said.
The unilateral order from the Environmental Protection Agency authorizing cleanup at the site is still in effect, and FMC has to complete that order, Yochum said. The order from the EPA was completed in 2013 after years of negotiations and clean up is set to begin this year. All physical structures have been removed from the site; the cleanup would install earth caps over the most contaminated areas and pump and clean groundwater.
The site is on the Fort Hall Indian Reservation. The Shoshone-Bannock Tribes have long opposed the EPA’s cleanup plan on the site, saying instead the phosphorus-contaminated ground should be removed and the area returned to its natural state. FMC says the removal of phosphorus is dangerous.
The case between the Tribes and FMC will be back in court again, in the Tribal Appeals Court, on Tuesday, April 1, said Maureen Mitchell, an attorney for FMC.
In 2005, the Tribes required FMC to obtain a waste permit for the site, and pursued the matter in federal court. The federal courts ruled that FMC had to obtain a special use permit and the matter had to first move its way through tribal courts before being settled in federal court.
The permit would require that FMC pay the Tribes $1.5 million a year for waste that was generated on the site. This amount matches a settlement FMC paid the tribes when the plant was in operation in lieu of a waste permit then. FMC stopped paying the Tribes when the plant shut down, and since the ruling in 2006 the funds are being held now by a private third party until the lawsuits are completed.
The Tribal Court ruled in favor of FMC, and the Tribes appealed the case to the Tribal Court of Appeals. The Tribal Court of Appeals ruled partially in favor of the Tribes, coming to the conclusion that the Tribes had a special relationship with FMC that allowed the Tribes to regulate them, but has since sought more evidence about how the site has affected the health and welfare of the Tribes, another reason for tribal regulation. The hearings beginning in April will address that issue.