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Berkeley Pit Superfund

Understanding the Superfund Process

Congress established the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) in 1980. CERCLA is informally called Superfund. It allows EPA to clean up contaminated sites. It also forces the parties responsible for the contamination to either perform cleanups or reimburse the government for EPA-led cleanup work.

When there is no viable responsible party, Superfund gives EPA the funds and authority to clean up contaminated sites.

Superfund’s goals are to:

  • Protect human health and the environment by cleaning up contaminated sites;
  • Make responsible parties pay for cleanup work;
  • Involve communities in the Superfund process; and
  • Return Superfund sites to productive use.

For more information about Superfund see:
This is Superfund: A Community Guide to EPA’s Superfund Program 

Details about the Superfund cleanup process:
https://www.epa.gov/superfund/superfund-cleanup-process

For information about Butte’s Superfund:
https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0800416

 

 

Superfund Legal Terms & The Berkeley Pit

 

Remediation

The word root of remediation is remedy, implying the same meaning as ‘cold and flu remedy’ when applied to medicine. In this example, the remedy is given to the injured or sick person to help lessen symptoms, but the remedy does not ‘cure’ the disease. In the case of environmental actions, the remedy is often to remove or contain the contamination. Remedial actions are designed to be protective of human health first; the remedy does not guarantee a return to a natural or ‘before injury’ condition. Remedy does not require an area to be returned to a natural condition that is self-sustaining. Rather, remedial actions prescribe monitoring and maintenance forever. This monitoring is designed as a check-up to ensure that the measures taken to protect human health and the environment are maintained. Examples of remedies in Superfund sites can vary between capping and covering, as in our Butte Hill, to fencing out hazards and requiring that land areas not be utilized, as in nuclear waste sites. Remedies may involve removal of the wastes and disposal to a repository where feasible.

Restoration

The ultimate goal of restoration is to return something to its original or natural condition. Often that lofty restoration goal is difficult to achieve, therefore, the Superfund statute allows states to replace the injured resource, acquire the equivalent of the injured resource, or to replace the services that the injured resource provided.  One of the intentions of restoration is to create a self-sustaining system that does not require long-term monitoring, maintenance, and management. In the case of Silver Bow Creek and the Clark Fork River, restoration includes removal of most of the wastes that were deposited along the riparian areas; floodplain connectivity; and utilization of native plants for revegetation efforts. These efforts allow normal ecological processes to unfold in each area.

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Potentially Responsible Party (PRP)

This term is defined in CERCLA or Superfund Law as the company and/or individual owners who are potentially responsible for contamination at a Superfund site.

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Remedial Investigation/Feasibility Study (RI/FS)

These investigations are intended to determine the nature and extent of contamination. The RI includes sampling soils, groundwater and streams. Often, both the responsible party and the EPA will conduct remedial investigations. The Record of Decision is based on the RI results and the follow-up feasibility study.

Once the remedial investigation is complete, and the nature and extent of contamination are understood, the EPA evaluates various remedy options for technical, environmental, and cost concerns. The feasibility study guides the conceptual design and construction process. Typically, both the EPA and the responsible party will conduct feasibility studies. These studies are completed prior to the Record of Decision negotiations.

In some literature and discussions, the remedial investigation and feasibility studies are lumped together and referred to as one study. Often, the remedial investigation and feasibility studies are conducted concurrently

 

 

Record of Decision (ROD)

This is the legal term for the public document created by the involved agencies and the PRPs. The public document explains the clean-up plan and outlines the remedies to be utilized. The ROD is a legally binding document that is negotiated between the agencies and the PRPs involved. The ROD is subject to public comment, meaning that citizens are allowed to comment on the proposals outlined in the ROD prior to finalization. The ROD can be changed based on public feedback. A ROD contains site history, site description, site characteristics, community participation, enforcement activities, past and present activities, contaminated media, the contaminants present, scope and role of response action and the remedy selected for cleanup.

Did You Know?

The ROD for sites listed on the NPL is created from information generated during the Remedial Investigation/Feasibility Study (RI/FS). The ROD for the Butte Mine Flooding Operable Unit, which includes the Berkeley Pit, was published in 1994 and can be downloaded below.

Download the 1994 Record of Decision

Records of Decision for other Butte/Silver Bow Creek area Superfund Operable Units are available from the EPA Superfund Information Systems.

The Montana Bureau of Mines & Geology also offers a summary of the ROD on their website.

 

 

Consent Decree (CD)

Consent Decree is the legal term for a settlement agreed to by court order. In a Consent Decree, the dispute between the parties is agreed to without admission of guilt. In the case of Superfund, the companies or owners are referred to as “potentially” responsible parties, rather than responsible parties as there is no admission of wrong-doing. In Superfund, the Consent Decree negotiations are the final step for settlement. The CD defines the methods, and extent of cleanup, as well as future monitoring plans. The CD is informed by the remedial investigation, feasibility studies, the Record of Decision, and any ROD modifications completed prior to the CD negotiations.

Did You Know?

On August 14, 2002, U.S. District Judge Sam E. Haddon signed the Mine Flooding Consent Decree between the Atlantic Richfield Company (Arco), the Montana Resources Group (MR), the U.S. EPA, the State of Montana (DEQ) and the U.S. Department of Justice.

The Consent Decree was released for public review on March 26, 2002, with a May 4 deadline to submit public comments to the federal court. EPA and DEQ reviewed the comments submitted and in late July 2002, the Agencies submitted a report to the federal court recommending that none of the public comments warranted any changes in the Decree. Subsequently, Judge Haddon approved and signed the Consent Decree as originally drafted.

With the Consent Decree lodged in federal court as a legally binding agreement, Arco and MR proceeded with plans to build the Horseshoe Bend Water Treatment Plant. The companies are also obligated to provide annual financial statements to document their capability to pay all costs to operate and maintain the facility in perpetuity.

The Decree also requires Arco and MR to reimburse EPA and DEQ for past costs and pay now for future oversight costs. Other obligations are to enhance the waterfowl protection program at the Berkeley Pit, to establish a groundwater control area surrounding the Berkeley, to fund the Montana Bureau of Mines and Geology to continue the mine flooding monitoring program, and to fund public education (e.g., PITWATCH).

 

 

Operable Unit (OU)

Large acreage superfund sites, such as our site, are often broken into smaller management sections, or operable units. The operable units typically are divided by geographic constraints and/or nature of the remedial action needed.

Did You Know?

The Berkeley Pit is part of the Butte Mine Flooding Operable Unit (BMFOU).

See Butte’s Operable Units on epa.gov