Missoula conservation district: Smurfit berms must be removed
(Missoula Current) The Missoula Conservation District has added its voice to those calling for the Environmental Protection Agency to remove the berm that separates the Clark Fork River from the Smurfit-Stone mill site.
On Thursday, Bradley Watkins, Missoula Conservation District director, told the Frenchtown Smurfit Stone Community Advisory Group that the district had written a letter to the EPA calling for the removal of the berms as part of the cleanup of the Smurfit-Stone site. The EPA has so far remained noncommittal on whether it would consider removing the berms.
“We think that not only is clean water important, but a functioning riparian ecosystem is important as well, and they usually go hand-in-hand,” Watkins said.
Conservation districts are responsible for, among other things, issuing permits to landowners who want or need to modify stream channels or adjacent land. They have to abide by the protections set out in Montana’s Senate Bill 310 which became the 1975 Natural Streambed and Land Preservation Act. The permits are called “310 permits.”
Watkins said the conservation district issued 10 310 permits to Smurfit-Stone between 1974 and 2007 to armor the banks of the Clark Fork so the mill ponds wouldn’t be flooded. But every spring, high flows continue to batter the banks and the berm, and the river wants to move across its historic flood plain. It can’t move to the southwest where it’s up against the foothills of the northern Bitterroot Mountains. That leaves only one direction to go: toward the mill site.
“We have a serious situation if we have a high water event and break through the contaminated soils behind,” Watkins said.
Former Forest Service hydrologist Bruce Sims said the risk of extreme weather events is increasing with climate change. All it would take is one rain-on-snow event like the one that flooded the Yellowstone River last year to breach the berm and send contaminants into the Clark Fork River.
Already, between 2017 and 2019, the river has eaten away 70 feet of an island upstream of the mill site, which puts more pressure on the berm, Watkins said. The berm – which is just an earthen barrier with little permanent structure – has had to have five different repairs between 1985 and 2011. During the very high flows of 2018, a boil developed in the berm that needed to be armored.
Since 2018, the EPA has conducted monthly to weekly monitoring of the berm during spring flows. But although Missoula County and others have said they want the EPA to remove the berm as part of the cleanup, EPA project manager Allie Archer has said it won’t be considered until more of the investigation is completed.
Watkins said the conservation district board has decided it doesn’t want to issue 310 permits in perpetuity for the maintenance of berms left in place just to isolate contaminated soils from the river.
“The EPA (consideration) does not include the maintenance and upkeep of the berms in perpetuity. That’s the statement of the district because 1) who’s going to be responsible for that and 2) it contradicts the Montana Natural Streambed and Land Preservation Act’s mission that these streams are supposed to exist in a natural condition,” Watkins said.
The Montana Department of Environmental Quality will also weigh in on whether the berms need to go, said Jon Morgan, DEQ Chief Remediation Counsel. In a Superfund process, the EPA works with DEQ to decide which federal and state statutes, regulations and thresholds the the cleanup must meet and these become the “Applicable or Relevant and Appropriate Requirements” or ARAR’s. But when it comes to the berm, the agencies have to decide whether county floodplain regulations count as state regulations, Morgan said. DEQ normally doesn’t try to define ARAR’s until a remedial investigation is finished and the Smurfit Stone site isn’t there yet.
“That’s still being discussed. The EPA provided a letter; I think their position is the local floodplain regs don’t fit the criteria of an ARAR. But even if they’re not, they’re based on our state law, and state floodplain regs are typically identified as ARAR’s. So any superfund cleanup would have to meet those regs,” Morgan said. “But at the end of the day, it’s the EPA that makes the decision of what are and what are not ARAR’s.”
Should the EPA decide to leave the berm in place, the landowners, the potentially responsible parties, would be responsible for maintenance of the berm. The state would enter into a consent decree with the potentially responsible parties, who would have to provide financial assurance, Morgan said. Typically, the assurance looks at a 30-year time frame and can take a number of forms from a trust fund to corporate assurance.
One of the potentially responsible partners said, if the berm were removed, his customers were concerned about what would happen to the ground long-term. Archer said that was yet to be addressed.
“What I’m hearing from the conservation district is that it’s untenable to have the berms. That’s important for us to know because community acceptance is an important part of the process,” Archer said. “Once we decide what the final remedy is, then we’ll look at all the long-term impacts you’re speaking to. If (the berms) are there or they’re not there. But we’re not there yet.”
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