What is a confidentiality order, and what does it have to do with the Superfund cleanup in Butte?

The Confidentiality Order (Order) is a court order entered by the Federal District Court for the District of Montana (Court) on August 8, 2002, and amended by the Court on December 31, 2003, that applies to Superfund settlement negotiations in the Clark Fork River Basin, including the following sites: Silver Bow Creek/Butte Area, Anaconda Smelter, and the Milltown Reservoir/Clark Fork River Site.

The confidentiality order was issued by the federal district court in 2002 to encourage and facilitate settlement negotiations. The court determined that the confidentiality order was appropriate to ensure that the parties were afforded the opportunity to engage in frank, open discussion so that litigation could be settled promptly and fairly to avoid the uncertainty, expense and delay inherent in a trial. The confidentiality order has been and continues to be effective in helping the parties reach settlements at multiple sites under the framework established by the court. To date, the United States has entered into six consent decrees related to the Clark Fork River watershed providing for cleanup and cost recovery at multiple operable units at the Silver Bow Creek/Butte Area Site, the Anaconda Smelter Site, and the Milltown Reservoir/Clark Fork River Site.   

The Order states that all settlement discussions and documents “shall be kept confidential both during and after the negotiations and not disclosed to third persons.” (Order at 1-2).

The Confidentiality Order applies to: 

All settlement discussions among and between the parties and any third parties. . .in settlement negotiations conducted pursuant to the Streamside Tailings Consent Decree settlement framework, as well as all documents prepared for settlement purposes or exchanged by the participants in such negotiations, shall be kept confidential both during and after the negotiations and not disclosed to third persons. (Order at 1-2).

The Order does not apply to technical documents, discussions, and meetings concerning the implementation of the consent decrees that occur after the Court entered the consent decrees.

Atlantic Richfield Company, Butte-Silver Bow County, the United States, the State of Montana, (including the Department of Environmental Quality and the Natural Resource Damage Program), and any third parties who join them in settlement negotiations are covered by the confidentiality order.

The Confidentiality Order (Order) has been, and continues to be, effective in assisting the parties in reaching settlements under the framework established by the Court in US v. ARCO and still pending in court – six consent decrees to date have been entered since the Order was issued. There are unresolved matters in the pending US v. ARCO litigation that EPA will seek to resolve through negotiation. The Order will continue to be important in allowing for frank, confidential, non-binding discussions of positions and options to resolve disputes, that would otherwise be litigated in court.