Citing Inadequate Consultation, Tribes Ask EPA to Delay Cleanup Decision at CFAC Superfund Site
Leaders of the Confederated Salish and Kootenai Tribes pressed federal regulators to conduct further tribal engagement and a more thorough assessment of the contaminated Columbia Falls Aluminum Company site
By Tristan Scott
In March, a coalition of Indigenous nations spanning the U.S.-Canada border celebrated a milestone in tribal consultation with federal governments by insisting on an independent investigation into the spread of mining contaminants across an international watershed, stretching from British Columbia to Montana and Idaho.
Tribal leaders on both sides of the border were triumphant when their federal counterparts agreed to recommend the imperiled Elk-Kootenai watershed for a reference to the International Joint Commission (IJC), which functions as an independent governance body on transboundary water quality issues.
It marked the first time that U.S. and Canada co-developed an IJC reference with a transboundary Indigenous nation.
“For too long, the U.S. and Canada have stood by while our waters suffered,” CSKT Chairman Michael Dolson said at the time. “We are encouraged by the federal governments’ change in direction and the progress that was achieved when we all worked together these past months.”
But for the CSKT, the promise of future tribal consultation was short lived. Tribal leaders say it has rung especially hollow as regulators with the U.S. Environmental Protection Agency (EPA) prepare to approve a remediation plan even closer to home, at the former Columbia Falls Aluminum Company (CFAC) site on the Flathead River — which, like the imperiled Elk-Kootenai watershed on the northern border, also cuts across the CSKT’s ancestral territory. According to CSKT, the EPA is moving forward on the plan without adequate tribal consultation, despite having met with agency officials in June and again in September.
“While we appreciate the Agency’s work and share a mutual desire to meaningfully remediate CFAC pollution, we disagree that all necessary diligence has occurred,” according to a letter that Dolson sent this week to EPA’s regional administrator, K.C. Becker. “For the reasons described herein we request EPA stay any decision-making … due to inadequate Tribal consultation, including inadequate CSKT involvement in site-related decisions.”
In an emailed statement to the Beacon, EPA officials said the agency is reviewing CSKT’s letter as “a follow-up to our consultation with the Tribes in September.” The statement from the agency also emphasized the extensive public outreach campaign its project leaders helped coordinate, hosting a series of community engagement open houses and a site tour of the contaminated property.
“Over the past 10 months EPA has conducted an extended engagement period in response to community questions about the proposed cleanup plan, including 13 different public engagement opportunities,” according to the EPA’s email. “EPA appreciates the feedback we have received during this process, including from elected leaders, advocacy groups and Tribal leadership, and we will continue to communicate with all interested parties and the community as we work towards a protective, effective cleanup at CFAC.”
In its letter, CSKT leadership acknowledged the EPA’s commitment “to engaging in meaningful consultation with us on the CFAC Superfund process” but goes on to articulate “deep concerns about how the Superfund process has unfolded thus far” and other shortcomings and problems with the process.
“We think many, if not all, of those problems are a result of inadequate participation of the community, and specifically, inadequate tribal consultation,” the letter states. “We respectfully remind EPA that the September 17, 2024 meeting with CSKT was only the second time (the June 11, 2024 meeting was the first time), during a multi-year … process (dating back to 2015), that any Agency officials actually met with our Tribal Council and shared its proposals. Two meetings and mailed letters does not fulfill EPA’s own directives regarding Tribal Consultation.”
The letter specifically references the Hellgate Treaty of 1855, through which CSKT “reserved the right to hunt, fish, and gather in our usual and accustomed places throughout the Tribes’ aboriginal territory, including the landscape negatively affected by the CFAC,” the letter states.
“The EPA has made many commitments to consult with Tribes and to honor Tribes’ treaty rights, including a specific commitment to engage in meaningful consultation with CSKT on the cleanup remedy for CFAC,” Dolson stated. “Now it’s time for the EPA to turn those words into action and to work with the Tribes to ensure that the toxic waste at the CFAC site will not continue to harm the river, fish, and our treaty rights into the future.”
In the letter, CSKT leadership voiced concerns about EPA’s preferred remedy to address toxic waste at the CFAC Superfund site, including its proposed solution to build a slurry wall to contain the contamination on site. Much of CSKT’s concern centered on the EPA’s proposal to contain rather than remove the environmental hazards; specifically, groundwater in the plume core that contain concentrations of cyanide, fluoride and arsenic in dangerous concentrations.
“We are concerned about the toxic contaminants … and how the cyanide, fluoride, and heavy metals impact the Flathead River and native trout. We have treaty-reserved rights to hunt and fish in the waters and lands around the CFAC plant,” said Rich Janssen, director of the CSKT’s Natural Resources Department. “But if there are not enough fish to harvest, or if the fish have bioaccumulated too many toxins to be safe for human consumption, our treaty-reserved rights are meaningless. EPA must select a cleanup plan for CFAC that will permanently protect the Flathead River and the fish that live there, and ensure the river and fish survive and thrive for future generations.”
Tom McDonald, CSKT’s vice chairman, expressed concerns that the environmental engineers whose work informed the EPA’s preferred remediation plan were hired by Glencore, the Swiss commodities giant that owns CFAC. Glencore is the same company that recently acquired the coal mines at the center of the environmental crisis unfolding on the transboundary Elk-Kootenai watershed, paying $6.93 billion for the acquisition from Teck Resources while also assuming responsibility for the contamination.
“It’s the same polluter,” McDonald told the Beacon. “Glencore is now the single biggest threat to our treaty-reserved fishing rights. We need to have the same standard and the same level of tribal consultation on the CFAC property that we have on the border, and that requires an unbiased third party to review what’s going on. We need to reboot this thing, spend another year studying it and figure out what’s really going on. Until we have that, we don’t want to accept a cleanup decision.”
McDonald continued. “The EPA has been a great partner working to get Canada to address the pollution from Glencore’s mines in the Elk Valley. We expect EPA to do the same here to address pollution from Glencore’s superfund site in the Flathead basin, particularly since EPA actually has the authority here to protect our treaty-reserved rights.”