Fall of Asarco

Water is poured at 9,000 gallons per minute on the first down stack at the Asarco plant as the other two make their way down after nearly a century holding the East Helena landscape in this IR file photo from August 2009.

Eliza Wiley, Independent Record

Following an appeals court ruling in its favor, the American Smelting and Refining Company will pursue up to $60 million in industrial waste cleanup costs from the company that operated a zinc fuming plant next to the East Helena smelter. 

In striking down and remanding a district court ruling, the Ninth Circuit Court of Appeals found this week that the lower court had erred when it dismissed Asarco's case against ARCO based on the statute of limitations. The decision allows Asarco to pursue cleanup costs attributable to ARCO in East Helena.

Asarco paid about $113 million as part of a 2009 bankruptcy settlement for cleanup in East Helena, with $100 million going into the Montana Environmental Trust responsible for the current work at the site. Problems from more than 100 years of operations include lead emissions from the plant that settled in the soils, as well as underground plumes of arsenic and selenium that are migrating off the plant site toward the Helena Valley.

Officials are still finalizing cleanup plans but have begun a number of remediation measures.

In 2012 Asarco filed suit seeking financial help from companies including ARCO in paying the settlement costs. According to the original lawsuit, Asarco alleged that ARCO should pay pollution costs from more than four decades of ownership of the zinc plant under the former Anaconda Co. which ARCO acquired.

The district court ruled that a 1998 settlement between Asarco and the United States under the Resource Conservation and Recovery Act, which pertains to the actual smelter site rather than the larger Superfund site, began the 3-year statute of limitations to seek compensation from ARCO.

The Ninth Circuit disagreed, ruling that the statute of limitations began with the 2009 settlement.

Asarco attorney Gregory Evans with the firm McGuireWoods called the ruling good for industry and the environment.

“It advances public policy by encouraging companies to voluntarily settle rather than engage in big acrimonious fights with EPA,” he said, which makes funding available immediately for cleanup to commence.

A request for comment from attorneys representing ARCO was not returned in time for this story.

Reporter Tom Kuglin can be reached at 447-4076 @IR_TomKuglin

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