·.:.# 


Greater Yellowstone Coalition 

162 ~orth Woodruff. Idaho Falls, IJdho S 140 I • (20S) 522·7927 • idaho@grcatcrydlowstone_,Jrs, 

19~3 - 2008 

(~~'/.·/lIrftH{ ..:,- )1.:,,-, 

.. -~-

Novt:mher J, 2009 

Lisa Jackson. Administrator 

Environmental Protection Agency 

Ariel Rios Ouilding 

1200 Pennsylvania Avenue, "l.W. 

Washington. DC 20460 

RE: Petition to add Phosphate Mines to the list of facilities subject tothe Toxic Release 

Inventory program of the Emergency Planning and Community Right to Know Act 

Dear Administrator Jackson: 

Under § 55 3(e) of the Administrative Procedure Act. the Gr\!!at~r Ycllmvswne Coalition 

("'Oye") requests that the Environmental Protection Agency promulgate a rule adding phosphate 

mines to the list of hii.:ilities subject to the Toxic Release Inventory program. aye is a 501 (c)(3) 

non-protit organization dedical~d to protecting the wildlands, wildlife. and other outstanding 

natural resources ofthe Greater Yello\o,slune Ecosystem. This ecosystem encompasses eighteen 

million acrcs,.induding Yellowstone and (irand Teton National Parks, six national forests, three 

national \vildlife refuges. and approximately three milJion am:s of private lands GYC has 

offices in Idaho, Wyoming. and Montana and more than 20.000 mt:mbers and supporteri> 

natiomvidc. 

On January 27,2006. GYC submitted a similar petition to the EPA, requesting the inclusion of 

phosphate mining in the TRI program. EPA respuIH.led in a letter dated February 24. 2006. 

stating that the agency would, "subject to available resources," review the petition and assess 

whether to include pho~phate mining in the TRI program. Three years have passed since this 

correspondence with no further word from the EPA. In the meantime, phosphate mining 

(;ontinues outside the purview uf lIle TRl program and the selenium contamination problem ill 

southeast Idaho worsens. 

Phosphate mining has been responsible for the release of large quanliticl:i ofselenium (Se) in 

Idaho annually. These releases if Se have had a deleterious effect on the environlllent rt!sulling 

in selenosis deaths oflivestock and high hioaccumulatioIlS in 1ish and other '.vildlife, prompting 

the Idaho Department of Health and Wdlare to issue a fish consumption advisory and conduct 

several health consults based on selenium releases to the ellvironml!nL 

Bo;t~n1.lr1 (Jfficl1" !'.l_'l_ B~A rHo l • L-kl':l11.l'i \t'}lHana ~{)?71 • ,,40{/, c,{~{)~l )~} .. Ll~ ,-H)(1.} -;Ji -,-'\;.;)<) 


CoJv Of/l(e' 128; Shw,illl "or. S,.·. n;. CAl); \i\\<>""ngl$24H. J!J7) 527,6133. tJ:x,.'(17\32~·61';v 

J~,kMm OllIe", • RO :.h" Ji:l';7 ..i>,h;'''l. WV»!1llllg t il)l}! i ,,17) Ti·HiOil4 • fu ,)(J7' "J4·('()['1 

• <

.1 I -­

While the issue or selenium contamination has been ongoing locally for over decades. many 

people who live. work, and recreate in the region remain unaware of the danger those releases 

posc. Therefore the inclusion of pho<;phatc mining in SIC code 1475 is needed and fulfills the 

intent of EPCRA in Toxic Release Reporting. 

The Greater Yellowstone Coalition is confident that atter your re\cicw you too will agree that 

Phosphate ROl:k Mining operations should be required to repan releases of seknium to the 

environment. Gye requests that the EPA consider the attached petition in a timely manner. 

Sitlcerely , 

~f Idaho Director 

/-) 

"I,~",~/,~___ !.' ~- r--_.1 ~~ ~-'~-.:..---,-

­ Katie Strong 


Idaho Conservation and Legal Associate 

e 

Petition to add Phosphate Rock Mining to the list uf facilities required to report releases of 

chemicals under Standard Industrial Classification Code 1475, or North American 

lmlustrial Classification System 212392 

Submitted by the Greater Yellowstone Coalition 

I. Introduction 

Phosphate mining causes the rdease of large quantities ofseleniwl1 illldahu annually. These 

releases calise substantial environmental harm. Tn 1:1('t, the selenium concentrations found in the 

native rock in this region exceed the threshold to be considered a hazardous waste by as much a<; 

12 times. l These high concentrations of seleniwn are rdeased by phosphate mining, which 

"remows phosphate-rich beds and exposes carbon-rich waste rock to subaerial weathering.,,2 

When the selenium I.:ontained in the native rock is exposed to the atmosphere and surface and 

groundwater. it changes from u rdatively insoluble form to the soluble form ofselenite or 

selenate. 3 Surface and groundwater readily transport these forms of selenium to surrounding 

streams. contaminating the stream and surrounding environment with toxic concentrations of 

selenium.4 

\Vhik phosphate mining-and the attendant selenium contamination of grouml and surface 

water-has occurred from more lhan 30 phosphate mines in southeast Idaho for decades. many 

p~oplc who live, work.. and recreate in the region remain unaware of the danger these releases 

pose. Inclusion of phosphate mining in the TRl program would help alleviate the current lack of 

information on selenium contamination in southeast Idaho and assist federal and state agencies in 

making de..:isions regarding regulations and the permitted scope of phosphate mining on federal 

lands.~ 

Congress enacted the Emergency Planning and Community Right to Know Act ("EPCRA") to 

ensure the public is infonned about hazardous chcmi.:als that may affect then in their 

environment and to allow the public to make more informed d~cisions.6 EPCRA 's reporting 

requirements encourage polluting industries to become better neighbors thruugh chemical use 

reductions and mitigation measures. The Administrator may su~ject a new industry group to the 

TRl reportll1g requirements if "such action is warranted 00 the basis of toxicity of tbe toxic 

I Presser. T.S .. Piper. D.Z.. Bird. K.1., Skmupa. 5.1. Hamilton, S.J., Deh'Viler. SJ.. Huebner. M.A. The Phosphoria 

Formation: A Model for Forcnsting Glohal Selenium Sources to the EnvilOlIIllt:Ut., Life (veil' oflhe Phosplwrta 

Formatio/1. From Deposlfll)// to the Pm1-Minblg Em·/rilmnelll. Pg. 308. Edited by James R. Ilein. 2004. 

2 [d.. cHing U.S. Department of Interior and U.S. Dcp;utment ofAgricullure, 1977. Final t!nvironmental impact 

statement: development of phosphate resources in southeastem Idaho, Vol. I. U.S. Govemment Printing Office. 

Washington, D,C, 429 flr 

lId at 309. 

~ (d. 

~ S<!l! 42 USc. § lI023(h) (purpMC ofthe TIU is '"to inform persons about releasI!8 of toxic chemicals to the 

environment: to assist governmental agencies, researchers, and othl!r p\:fwns in the conduct of research and data 

gathering: to aid in the development of approprifltc regulations. guidelines, and ~taJl{.Jan.b; and tbr other similar 

purpo!>cs."); see also 40 C.F.R. § 372.1 {"TIle information collected is intended to inform the general public and the 

communities surrounding covered facilitic'i about releases oftoxic chemic;ats. to l\s~ist res1;!afch, to aid in the 

development of regulations, guidelines, and standards, and for other purposes."). 6!d 
chemicaL proximity to other t~lcilitics that release toxic chemicals or 10 population cenkr:i. the 

history of releases of such chemical at sllch facility, or other such lactors as '" appropriate,"? 

Including the phosphate milling industry in the TRl program is 'warranted because of (1 ) the 

toxicity of selenium; (2) the close proximilY of phosphate mines to one another in southeast 

ldaho~ en a well-established history of releases: the value ofthe information to the pUblic; and 

(4) lIle growing threat posed by continuing and accelemting levels ofselenium contamination. 

II. Toxicity of Selenium 

Selenium is an essential micronutrient but becomes toxic with elevaled exposure. For examph:. 

biochemical pathways are unable to distinguish selenium from ~ulfur. This has the effect of 

creating wngenital defects, noted in the embryos oftlshs anu waterfowl eggs in the area of 

phosphate mines that exhibit seienlml1 concentrations eight times the allowable amount for 

viabilit.y.g As bas bt:cn well documented, selenium bioaccumulates l!1 the fuod chain, leading to 

reproductive impairment in tlsh and aquatic birds.1O Lemly notes •• ... a transition irem no effect 

to complete reproductive failure can occur over a range of only a few _gil. (parts per billiun) 

waterhorne selenium (Fjgure 1). Thus. even slighl increases can light the bioaccumulation fuse 

orthe :;elenium time bomb and push it over the toxic threshold."l1 Selenium contamination 

affects both aquatic and terrestrial ecosystems. 

A. Aquatic Ecosystems 

Sampling of water, macrophytes, macroinvertebrates. and 115h over the past twelve years 

indicatt!S widespread and severe selenium contamination throughout aquatic ecosystems of the 

phosphate-mining region of southeast Idaho. The large umount of selenium released into the 

environment by phosphate mining operations poses signiticant risks to the I3lackfoot River in 

Idaho and the upper Salt River in Wyoming. Between 1997 and 2003, thirty-one separate 

streams and rivers were sampled for selenium in the Blackfoot and Salt River dminagcs in the 

phosphate-mining field. Samples included water. sediment. aqualic plants, invertebrates. and 

(ish. All except three streams exhibited a high percentage of samples exceeding the "levels of 

concern" published by th~ U.S. Department of Interior in 1998. 12 

The 2002 and 2008 §303( d) liSIS of inlpaired streams prepared by the Idaho Department of 

Environmental Quality demonstrate the increasing problem of selenium contamination in 

41 U.S.C § IIO:!l(b)(I}(B). 

& Cumbie, P.M. and Van Hom. S.L. 1978. Selenium accumulatlon associated with tish mortality am! reproductive 

tailure. 

Q Presser. T.S., Piper. D.Z., Bird. K.1., Skorupa, S.1 .. Ilamilton, SJ., Detwiler, S.l, Huebner, M.A. The Phosphoria 

Formation: A Model for Forcasring Clobal Selenium Sources to the Em· ironment. Life C)cell! ojlhc PllOsplwrfa 

Formation: From Dt!pllfitirJn to tht! fast-Alinillg Environment. Pg 31:!. Edited by James R. Hein. 2004. 

Iv A. Dennis Lcmly. Selenium Impacts on Fish: I\n Insidious Time Bomb. United Staleli Forest Service. Blacksburg. 

V/\. Human and Ecological Ri5k A"~;!ssment: Vol. 5, No.6, pp. 1139-1151 (l999). II [J. 

12 U.S. Department of the Interior. J998. Guidelines tor interpretation of the biological effects of selected 

consritUent" in biOla.. water. and sediment. National Irrigation Water Quality Program Information Report No.3. 

U.S. Department of Interior. Washington. D.C. Levels of concern are defined as follows: ..... rarely produce 

discernahle adverse effects but are elevated above typical back!,'fOlmd concentrations" WiltlreaS com;enlrations above 

these levels ·' ...appear to produce adverse Ct1I!ctS on some fish and wildlife" 

j­

,~ 

i 
southeast Idaho. in 2002, nine stream segments. totaling 61.75 ruiit:s, were listed as il11pairc:d 


due to selenium contamination Crable 1 ).13 


Tale11 1 _,CCDlum I d ,St I~ . 200' S I mpalre . reams. .--~-" 

(I) # Name . Dcs~ription -''liles "'--,, 

lD17040105SK009 02 Sage Creek source to mouth 24 , 

i 

i lD17040207SKOIO 04 Blackfoot River umtluence of 13.82 

Lan~sand 

Diamond Creek:; tu 


1D 17040207SKO 13 02a Chicken Creek 2.86 


ill17040207SKO 13 03 ~-

Drv Valley Creek source to mouth 4.98 ! 


ID 17040207SKO 14 02 Mavbe Creek source to mouth 5.23 


ID 17040207SKO 15 03 Lower Spring 1.5
 - Creek ......... 


I 10] 7040207SK015_02b Lower Mill 1.03 , 

Canyon I 

ID 17040207SKO 15 02a Upper Mill Canyon 2.44 I 

, IDI 7040207SKOI 5 02 Spring Creek 5.89 

; ! Total 61.75 

By 2009, the number uf selenium·impaired streams jumped tu twenty -two stream segments for a 

total of 163.21 miles. This number includes the entire upper Blackfoot River and morc than 

ninety miles of its tributaries. In other terms, phosphate mining has contaminated nearly 40~ of 

the perenfllal stream miles of the Upper Blackfoot River watershed with selenium (Table 2).1'> 

II) TahIe 2 2008 S I ,eeDlum I mpalfC reams. . d St 

III> # Name I)cscription Miles I 

/lDI6010201BR022_02b Upper 9oergetown lu:mJwalt:rs tu left hand fork 10.R7 I Creek I , 

TDI7040105SK009 02 Sage Creek source to mouth 12.41 


ID17040105SK009 02d Pole Canyon Creek 3.6 
 : TD17040105SK009 02e South Fork Sage Creek ' 7.93 


rD17040105SK009 03 Sage Creek source it) mouth 3.22 -". 


Tn 17040209SKO 1 0 02a State Land Creek 9.07 


TD17040207SKOIO 04 i Blackfoot River confluence of Lanes and I ] 3.82


Diamond Creeks tu -_._- • 

13 Principles and Policies for Ihe 2002 Inregra!<.'d (303(d)!305(b» Report. Idaho DepartJnent of Environmental 


Quality. September 3D, 2005. 


141d 


15 Idaho Departmenr of Environmental Quality Working Principles and Policic,; for the _~1l08 Integrated 


(303[d]/305[h]l Report. Boise. ID. May 22.2009. 


If'ld. 

17 Thi~ steam segment was not assessed in 2002. 

3 

--

ID17040207SKOlO 05 Blackloot River conlluem:c of I,anes and 20.67 

Diamond Creeks to 1

I ­

lD17040207SK012 02b Goodheart Creek 7.54 

i ID 17040207SKO 13 02u Drv Valley Creek 6.43 

lDl 7040207SKOI 3

- 02b Chicken Creek tributary to Dry Valley 2.86 

Creek I 

1D17040207SKO13 03 Drv ValJey Creek source to mouth 4.98 

ID17040207SK014 02 Maybe_~reek source to mouth 5.23 

ID17040207SKOIS 02 Spring Cre~~ 5.89 1 

fDl7040207SKO 15 02a , Upper~iilJ Canyon 2.44 , 

ID17040207SK015 Olb Lower Mill Cunvon 1.~3_ 

ID17040207SK015 03 i Lower Spring Creek I 1.) -~-"~ -­ ID 17040207SK022 _02 I Sheep Creek headwaters and un-named 13.49 

tributaries 

IlDL7040207SK022 03 Lower Sheep Creek 1.32 1 

i ID17040207SK022 03a Middle Sheep Creek 3.53 

ID17040207SK023 02 Angus Creek Un-named tributaries 11.34 ~-,~~---

JD 17040207SK023 02a Rasmussen Creek 6.26 

ID 17040207SK023 02b Upper Angus Creek 7.78 

Total - 163.21 

Tbis dramatic increase-morc than double the length of impaired Slr~am s~gments Ii Sled in 

2002-indicatcs the pace and extent of the selenium contamination problem in southeast Idaho: 

in a mere 7 years. an aJdilional 101.46 mi les of stream became impaired due 10 selenium 

contamination caused by phosphate mining. 

TRI reporling would arm the public with more accurate data lor weighing the value of phosphtltc 

mining to the local community when compared to the rapid and extensive wntamination ofthe 

region's rivex:; and streams. The importance of this information is highlighted by the dramatic 

effects toxic levels of selenium have on fish and aquutic ecosystems. 

i. Effects on Fish 

The impact of selenium on fish and other aquatic species, including amphibia.ru,. shure birds. and 

waterfowl. is wdl documented. A numher of snldics indicate that selenium toxicity in fish is 

most often manitested by n:prouLlctive failufC. One prominent case study examined Bele\vs 

Lake. a water bodv in North Carolina contaminaLt:d bv selenium laden ash wastewater from a 

coal-fired power plant. IS The lake originally contained twenty species of fish. Only two 

remained after the nine-year contamination period (1976~85). Reproductive failure resulting 

from toxic levels of selenium caused this extirpation of eighteen species. Becau~c of the 

bioaccumulative nature ofselenium. contaminated lake sediments at the bottom ofthe fuod chain 

continued to cause developmental abnonnalities in the re-';locked young tish as late as 1996."i 

This ecological disaster resulted from waterborne selenium i.:onccntrations of 150-200 Se pgiL. 

IS Lernl)' (1999). 

1/ 1d. 

4 
tar less than the conct:nlrations ofsclcnium in some streaIllS in the vicinity of the phosphate 

mines of southeast Idaho. For example, in 2006 water samples taken from Pole Canyon Creek, a 

tributary of the Salt River. whil."h drains part ofthe Smoky Canyon phosphate mine had selcniunl 

concentrations of 992 Ilg!L. In 2008. selenium concentrations in Pole Canyon Creek exploded. 

reaching a high of 6,230 IlgfL. Selenium concentrations in Ma~bc Canyon Creek, a Blackloot 

RiYer tributary that drains the SOllth Maybe Canyon Mine. have been m,-'Hsurcd as high as 1,140 

Ilg/L Se. 211 East Mill Cr~t!k. which drains the North Maybe Canyon ivfinc, had waterborne 

selenium concentrations of417Jlg/L Sc in the spring of200521 • 515IJ.g/L in May 200622 , and 570 

j.lg/L in May 2007.23 The ecological impacts ofthcsc extreme concentrations h~vt! been well 

documented. Most notably. the selenium contamination has extirpated all fish, including the 

once robust Yellowstone cutthroat trout populution,24 from Mill Creek below the N0l1h Maybe 

Canyon Mine. Trout have also been extirpated from Maybt: Canyon Creek and Kendall Canyon ., . Creck.~· 

Seleniwn reaches streams in the Blackfout and Salt River watersheds via surface und 

groundwater flows. For example. meteoric \vater (rain and snowmelt) tlush through numerous 

mine wastes dumps and '·rcclaimed" mining pits at J.R. Simplot Company's Smoky Canyon 

Mine, leaching ~e1enium from the waste rock into the local aquiter. The water discharged into 

the area's springs ami streams from these aquifers contains selenium COf1l."enlrations well above 

the surface water standard. Hoopes Springs, which is more than 2.3 miles from one oftlle 

sources of selenium impacting it. now has selenium concentrations at historic highs of 35.5 

Ilg/L.26 South Sage Springs, which is even fwther away trom the sources of selenium. now has 

concentrations mnging upward of23.8 j.lSlL. 27 TIle issue ofseh:nium contamination of surface 

waters from the Smoky Canyon Mine's waste dumps is not an isolated incident in southeast 

Idaho but occurs at till of the seventeen phosphate millcs--which are also CERCLA sites-and 

likely occurs at some of the other nine historic phosphate mines. 

Fish populations have been hard hit by this contamination. In 2007, during a coordinated 

collection and analysis of fish from streams in southeast Idaho. the Idaho Department of Fish and 

Gam,= (IDFG) sampled fifteen stream sites, a consultant for the J.R. Simplot Company sampled I 

2l' Hill, Sllcry J. Aquatic SY5tCnlS Biologist. Po~a:ello. ldaho. An Analysis of SelenIUm Cum:cntrations in Wat.;:r ,UlJ 


Biolugical Tissu;: Samples Collected in the Upper Blacktoor River and Salt River Watersheds trom 1997 to 2003., 


2005. 


No.;08973.002.1)09. 

21 Weber, Frank. Research 

May 19.2005. 


Triangle institute. Research Triangle Park, NC Technical R.eport. RTI Project 
 I 22 Weber, Frank. Research Triangle Institute. Rloisc£lrei1 Triangle Park, Nl'. Technical Report. RTI Project No: 


0208973.002.009.6/19/06. 


13 W;:ber, Frank. Research Triangle Institute. Research Triangle Park. Nl' Technkal Report. RTI Pr~lect No.: 


0208973.002.009. 6/11/01. 


2~ Letter dated August 5. 1980 from Russ 111urow. Idaho Department offish and Game, Soda Sprill!!,s, ID, w Dcan 


Grover. Soda Springs Ranger District. Caribou National rorest. "In 1971). we elecrrotished sectiollS of Kendall. 


Mill, and Spring Creeks ... In Mill Creek. we surveyed two sections and densities equaled 37 cutthroat and 24 


.:utthroat trout fry per 100 meters with(in) the U.S. Forest Service LloumLlry .. 


25 2002 Cutthroat Trollt Fish Distribution Survey Report. Kendall Creek USDA Forest SerVice, Caribou-Tmghcc 


National FureSL "No fish \\ cr(.' captured." 


2!. Nl:wJields, ~O~QlJnterim EtTectiyeness Monitonng Report POl0 Canyon Removal Action SmokY Canyon Mille 


CktQber 24. 2008, Table 6.2008 Surface Water Monitoring Results 


!7 ld at Table 5, 2008 Sampling Results for Springs. 


5 

five streams, and GYC sampled nine sites. 2S A total of 3391Iout and 93 sculpin were collect~d 

and analyzed for selenium. The results ofthe 2007 sampling shm.\' that trout taken from streams 

impacted by phosphate mining averaged 11.4 flg/g dry weight selenium. while sculpin colk-eted 

from impacted streams averagi.!d 14.5 !tg/g dry weight selenium.29 That concentration far 

exceeds the propo:;cd EPA standard maximum of7.91 ~g!g Sc whole body dry weight criterion . l'f' I e.-10 to protect aq uatlc 

In 2005, 2006, and 2008. GYC also sampled trout, sculpin. dace, and shiners from n total of 

twenty--onc streams, including 1ll0~t uf the streams sampled in 2007. 31 1 he results ..vere simi lar 

to those in the 2007 study reported by IDFG. However, several ofthe impacted streams had 

markedly higher average sdeniLUu concentrations in 2008. For exnmple, Yellowstone cutthroat 

trout collt':l:lcd from the Angus Creek site in 2007 had an average of tl.09 flg.ig dry weight 

selenium. In 2008, the average concentration jLUllped to 12.79 ~lglg. 

These concentrations bode ill for tlsh populations in southeast Idaho. In a 2007 pUblication, Van 

Kirk and Hill reviewed Yellowstone cutthroat trout populations and how selenium 

concentrations' in streams in the Salt River and l3Iackfoot River in southeast Idaho mighr effect 

those populations. 32 Based on the analysis and other research 011 the effects ofsdeniurn on 

salmonids. the authors conclude: 

(I) when survival of individuals is density-depemknt. population-level response 

to toxicant exposure may be lower than predicted based on individual-level 

response. 

(2) cutthroat trout populations will be protected at selenium concenlralions not 

exceeding 7.0 ~lg!g. and 

(3) 	envir~mmental stochasticity can significantly aHt-ct the response of 


populations size to individual.level toxicity. 3J 


Furthermore, Van Kirk and Hill hypothesi/.e that when selenium concentrations in fish exceed 

lO.O ~lglg whole body dry weight population level effects can be expcctcd.34 Making a grim 

repan even worse, the Van Kirk and Hill model underestimated effects of selenium on cunhroat 

trout populations becaU5t: it inclUl.h.:d effects only on pre-winter ju"enile growth and survival and 

not effects observed in numerous other IiII: slages of warmwater fish that could also occur in 

trout. The authors acknowledge that population-level effe.:ts of sdenium toxicity on cutthroat 

cS Prank. Research Triangle Institute. Research Triangle Park, NC Technical Report. I{II Project 

NU.:(}20K973.002.D09. January 15.2008. 

1') lDFG report for 08 selenium protocol meetillg.. 

]{; hup:/iw\\'w.epa.gov ;·seleniumcrircrin/quesrions.hrm 

11 Weber, Frank. Research Triangle IllstiLule, Research Triangle Park, NC Techmcal Ke.port. RTf Project 

No.:08973.002.009. September 10. :m05. Weber. Frank. Research Triangle Institute. /{c~search Triangle Park, NC. 

Technical Report RTI Project No.:02Q8973.002.009. September 25, 20Gb; Weber: Steven McGeehan linivcrsity 

or hlaho Analytical Sciences Laboratorv Moscow. J() November 13. 2008 . 

.12 Vml Kirk, R.W" Hill, SL. DemograPhic model predicts trout popUlation rcspon~e tn selenIUm bas~ on 

individual-level toxicity. Ecol. Model. (2007). doi: 10.10 16/j.ecolrnndcL20f17 !14 001 

.lJ hI. 

14 rd. 

6 

trout could be .substantially grt!ater than they have predicted ifthe \\inlt!T stress syndrome 

observed by Lcmly (l993b) also is experienced by salmonids. 1S 

Most recenLly, research in southeast Idaho OJl captured wild, pre-spawn brown trout in the 

Smoky Canyon Mine area, where phosphate-mining activities have polluted surface waters wit.h 

selenium, produccu ularming resulK36 The researchers documenled the reproductive success 

and viability of young in the captured trout and their eggs. The findings indicate !,;l1rvival of the 

eggs and young of brown trout substantially decreased-and the frequency and severity offish 

ueJormities increased-when selenium concentrations mached 20 to 25 milligrams/kilogram dry 

weight ("'lUg/kg d'vv") in fish eggs. 37 Overall survival or the eggs and young fish consistently 

dropped to 30 percent or less at egg selenium concentration:; above about 25 rug/kg dw.1l! The 

researchers calculated an "EC-20" selenium value for survival of eggs anu newly hatched tish, 

meaning a concentraLion of ~elenium in fish eggs at which 20 percent of the test fish would not 

sUlYivc. \II They determined that valu~ tu be 21.63 mg/kg dw in brown trout-Ill rhe researchers 

also calculated an EC-20 value for fish deformIties caused by selenium. ret1ecting a selenium 

concentration thm would l'ause a reduction of 20 percent in the sum fraction of normal fish 

observeu cumpared to toml tish observed in their studies.41 They determined this value tu be 

21.7 mg/kg dw.42 The researchers calculated that their EC-20 vahte for fish survival at an egg 

selenium concentration of 21.63 mg/kg dw in brown trout corresponded to a whok-budy 

selenium concentration in maternal tish or 13.35 mg/kg dw·. In other words, if a maternal brown 

troUl has a whole-body selenium concentration of 13.35 mg/kg dw, then 20 percent of her eggs 

will be too damaged by selenium poisoning for the eggs or young fish to survive 43 

The Brown Trout study included \,',:ild tish captured in selenium-contaminated streams in 

southeast Idaho. The study validaLcs the extenqive re<;earch publish~d by Lemly, Hamilton. and 

others over the last several decades in respect tu Lht;! deleterious eftects selenium has on tish. Just 

as significanLly, the study validates the Van Kirk model. 

it 	 Effeets on other Aquatic Species and Species I)cpcndent on Aquatic 

Habitats 

Effects ofselenium contamination are unfortunately nol limited to tish. Recent studies document 

the dnullatic impact on birds, invertebrates. and amphibians. For example. in 1999, Dr. Joseph 

Skorupa--one of the premier scientists and researchers in the tield of selenium's ellt:cls on avian 

specie;,s-conducted a site visit to the Idaho phosphate mining region. He later rep0l1ed: 

)\ fd. 

0(; N.:wfields. 2009. Brown Trout Laboratory Reproduction Studies Condllcted in Surport of Development of a 


Site-Spe:.:ific Selenium Criterion (hereinafter Brown Troul study). Included in AppendiX C or these comments. 


37 Brown Trollt Study at 26-27. 


'8 It!. at 26. 


J', Id at 31-32. 


4C Id 


411d. 


42/d. 

43 Ie! at 33. 

7 

... the hollt:sl sampling sites discovered during this brier survey of the Idaho 

phosphoria region were huller than the hottest sampling sites discovered during 

approximately a decade of sampling across ten states for the NIWQP LNalional 

Irrigation Watcr Quality Programj. 

I Iowevcr. the potential for damage to avian pupululiuns depends not only on hov. 

contaminated (hot) a site is, but also on how attractive it is tu breeding warer 

birds. What made Kesterson Reservoir such a large scale catastrophy (sp) was 

that it was highly contammatcd AND it anracted thousands ofbrceding water 

birds each spring. This brief survey diJ nOl discover any sites that were 

suspected 0 f exposing inordinately high numbers of breeding water birds. 

Although this survey was not designed to census bird numbers. tht! authors 

gailleu a qualitative inlpression that none ofthe sites surveyed supported more 

than a few hundred breeding water birds. and most of the sites surveyed probably 

supported substantiaHy tt:wcr breeding \-vater birds.+I 

Dr. Skorupa further noted "\ve managed to discover aquatic invertebrates with the highest level 


of selenium OS,S,.r.pm) evl'f reported from much more inlt:nsive and extensive sampling across 


lhe western U.S ... 


GYC collected macrophyte and macroinvcrtebrutc samples n"om 22 streams in the phosphate­


mining region of southeast Idaho irom 2005-2008:~fl This data mirrors or exceeds selenium 


values from samples da1a collected by other res..:archers between 1997 and 2003 (as summarized 


in Hill, 2005).4~ Clearly, a catastrophe similar to-but mort: toxic-to what happened at Belews 


Lake is occurring in southeast Idaho and the upper Salt River drainage in Wyoming. 


Tht: high conccnlrations of selenium ha"c also impacted amphibians in southeast idaho. 


Skorupa et al. (2002) collected three recently dead or dying tiger salamander larvae on June 21. 


1999, from a pit lake at Gay Mine. There. tht: rest:archt:rs obst!n:ed at least 152 carcasses along 


the shoreline on the shallow end of the pitlakt:. Skorupa had the tails (skin, muscle. and bones) 


of the salamanders analvzed for gelenium concentrations and found thev contained 40, 68. and 52 
 ~ - ~/g dry weight scienitun.4X These high selenium concentrations indicate that the salamanders 

died from selenium poisoning. 

A year later, Jeremy Shive conducted a survey of the Smoky Canyon Mine in Caribou County, 

II Skorupa. J.P .• S. Detwikr. and R. Urassfleld.. 200:. Reconnaissanc(: Survey uf Sdenium Water .md r\ vian Eggs at 


Selected Sites Within the Phosphate Mining Region Near Soda Springs, ld<lho. May June 1999. 


1~ Joe Skorupa. LJSFWS. In e-nldillO Sheryl Hill. 9 June 2003. 


46 Weber. Frank, R~sca~h Triangle Institute. Research Triangl\: P<lrk., ~c. Tedmical Repon. RTI Project 


No.08lJ7 3.00200<). September 19,2005. Wern:r. Frank. Research Tri;lllgle Institute, Research Triangle Park. NC 


Technii.Cal Repon. RTI Project No.:0208973.002.009. St:plember 25.2006; Weber. Frank. Research Triangle 


Institute. Research Triangle Park. NC. Techllil.:al Report RTI Project No.:02089i3.002.00Q. 10/30/07: Steven 


McGeehan Lnl\Crsity ofldnho Analyti;::,d Scienccs Laboratory. M·Js<o:uw. ID August 20.2008. 


·17 f-lill. Sheryl. Aqlt3tic Systems Diologist. Pocatello, Idaho. All Analysis ufSdellium Concentrations in Water and 


Biological TIssue Samples C~llected ill the tipper Blackfoot River dud Salt River Watersheds from 1997 to 2003. 


2005. 


IS Unpuhlished data. Ur. Jo.... Skorupa, U.S. Fi.sh & Wildlife Service, Washington D.C .• personal communication. 


8 

1997-were attlicled following exposure to relatively low concentrations of selenium over an 

extended period. Six ofthe eight were cllthanized.~6 In 1997, more than 120 sheep died at the 

Conda mine from eating selenium-wmaminated vegetation.57 In September of 1999. 

approximately 60 sheep died from selenium contaminated forage or water near the Stauffer 

min~.5g In June 2001. approximatcJy 160 shet:p died from selenium-contaminated waler 

dowll!:>tn:am from the Conda mine.>} Yd another 327 sh~ep died in May 2003 after grazing on a 

reclaimed overburden dump site near the Conda mine.flo Must recently, on August 11.2000, at 

least 18 head of cattle clied from forage contaminated by selenium growing on the JR. Simplot 

owned Lanes Creek phosphate mine./,I All of the reclaimed waste piles hal.! conct:ntrations of 

selenium in dlC vegetation that far exceeded the 5mg/kg grazing recommendations.C>2 

Thresholds for acute and chronic poisoning of grazing animals occurs '~at numerous disturbed 

[reclaimedl sites" in the vicinity of the phosphate mines.oJ A 2004 study found elevated 

concentrations of sdenium in vegetation at each sampled location, with mt;an tissue samples tor 

legumes of 80mg/kg and grassi,;!s of 18 mgikg.M The study also found "hot spots." with 

concentrations as high as 200 mg/kg. This level of contamination threatens grazing caUle. slu:ep, 

and wild1ife witll acute poisoning in just one day ofgrazing,6.'l Some of these greater risk areas 

have be~n closed to grazing.66 but high levels of selenium pervade local forage and wakr and are 

respollsibk fur elevated selenium concentrations in local cattle. In facL. even 150 days afrer 

removed from the range. livestock exhibited selenium levels of 1.3mg!kg. 

Consumption of excessive amounts of selenium by humans causes various adverse health effects. 

depending upon exposure. Acute symptoms of selenosis-caused by ingestion of vcry large 

quantities over a short period of time-include nausea, vomiting. Jiarrhea. and cardiovascular 

problems.li? Chronic symptoms--caused by ing.t:stion of sl~1allcr quantities over longer 

periods-ll1cluue hair!nailloss and neurological problems,',8 The Agency [or Toxic Subslam;cs 

and Disease Registry has eSlablished the chronic intake level at .005 mg/kg/day of seleruuJIl.6') 

For a 165 lb. person this would be .375 mg a day. Little more than an 8-ounec steak per day 

from thc above "depured" beef--animals removed from the range and moved to feedlots-would 

be at the chronic exposure level. While more than eight ounCes of beer a day exceeds an average 

\1\ Montgomery Watson. 1 <)')8. FaJl 1997 interim slIrlace \~aler !iurvey report. Southeasl [Jaho Phosphate Resource 

Area Selenium Project. Prepared for thi.' Idaho Mming Association Selenium Commitlt.:c 

,; BLM video from 1097. 

"Idaho State Journal. 12 Nov .. 1999 Pocatello. Idaho 


"i Idaho State Journal. 6 Jun., 2001. Pocatello, [daho 


6<:' Caribou County Sun. 19 Jun., 2003. Soda Spnng,>. Idaho 


tl Bruce Olenick. Regional Admjni~TaTor, Idaho Lkpt of Environmental Quality. August 13, 2U09. 


£-2 Idaho Depunml!nt of Environmental Quality. 


C3 Mackowiak, CL. Amacher, Mr.. Hall. J.O., and Herring. J.R. Uptake ofSelenium and other comaminal1\ 


elements into plants and implications for Grazing Ammab in Southea!il Idaho .. L[l'e Cycle afthe Phosphoria 


FormatIOn From lJepo.ririon to (he Post-MiJ1ing EmirolllJII!llI. Pg. 546. Edited by James R. Hein. ':100,1. 


MId.. at 527 


oS Id.. at 548. 


"'" Idaho Department ofEnvironmcntal Quali[y Area Wide lIuman I Jealth .1Ild Ecological RI!>k AS~I:~slllt:nL and 

Related Memorandum. Rick Clegg. 2002. 

0; Agenc> for Toxic Substlll1cc!l and Disease Registry htlp:!i·.\\.\w.atsdr.cdc.gov'hJ:,profiiesltp<)]-1.pdl' pg. j 5 

Mid 

691d. at A-3 

10 

~-
level ofconsumption for most people, it docs indicate that chronil.: t;'xposure levels are possible 

lor a large population, especially local ranchers given the level of contamination and various 

mediums of exposure. The toxicity of sdcnium. and the implication for human health risk, 

affects both domestic livestock and upland wildlili;:, 

With concentrations this high. livestock slaughtered directly after comino in from pasture 

presents a human health risk?' Given rhe toxicity of selenCum to domestic livestock, including 

phosphate mining in the TRl program would increase local awareness of the risk posed oy 

phosphate mining to grazing livestock in these areas 

ii. Upland Wildlife and Human Health Advisories 

Consumption oflo!.:al wildlife also poses a potential hazard to human health. In 2000, the 

Idaho Dept. ofFish and Game took muscle and liver samples of harvested elk at game check 

stations. The elk taken \-vithin two miles of tht: mine si[es exhibited muscle tissue sdeniulU 

concenLrations as high as .92 mg/kg and liver tissue at 13 mg/kg. Consumption ofsuch 

"contaminated elk liver CQuld [result] in adverse health effects likt: nausea. ,,11 On October 17, 

2006. the Idaho Department of Health and Welfare (IDI IW) cautioned hunters to limit 

consumption of elk in the phosphate-mining region of southeast Idaho due to elevateu selenium 

concentrations.72 IDIIW stated: 

For hunters andlor family members with a body weight or 80 kg or 176 Ih, 

estimated exposures to selenium from daily consumption of elk lU~cIe (one 8­

ounce meal per day) or consumption of tip to two 10-ounce l'neals of elk liver 

within a two week period is unlikely to result in any adverse health dIeets. 

However, consumption of larger al110lUlts or dk liver may result in exposure to 

selenium at levels that exceed health-based guidelines. 73 

In addition to the elk consumption advisory, the Idaho Department of Health and WeUare issued 

a fish consumption advisory for East Mill Creek because of selenium contamination, The 

Department advises against children under the age ofseven eating more than tour 4 ounce meals 

per month ofYeUO\vstone cutthroat and brook lrout from East Mill Creek This advisory has 

heen in place sinee 2002.74 

The (dabo Department of Health and Welfare has not revisited this issue even though selenium 

cODt~lmination has spread to other streams since the data fur the health assessments were 

:0 Idaho Depilillmml ur H~allh and Welfare, Health Consultation. Evaluation of ':.e In Beef, Elk, Sheep, and Fish. 27 

June,2001. 

71 [d. 

72ldahu D~partfllent of Health and Welfare. NEWS RELEASE.Hunrer~ Reminded to Limit Consumption of Elk 

Liver of Animal!. Harvested ~ear Phosphate Mines. October 17,2006_ 

73 Idahu Department of He(llrh and Welfare, Agency for Toxic Substances and Disease Registry and Bureau of 

Community and Environmental Health, Division of Health, Evaluntion ofSelenium in Elk In the Southe<lSt Idaho 

l'hosphate Resoul'ce An:a BANNOCK, BEAR LAKE, Bl~GHA\1, AND CARIBOU COUNIIES IDAHO EPA 

Facility ID: IDNOOI002245 July 2006. 

N Streams ofthe Cpper Blackfoot Watershed Temporary Selenium Fish Advisory (2002). rdaho J-j,-;h Consumption 

Advisory Program, Idaho D,:partmem ofllealth and Welfare. 

I 1 

collected. Streams deemed "un-impacted" in 200t for fish are nuw· on the Idaho Dept. of 

Environn~~ntal Quality's 303 (d) list orimpaired streams due to selenium contamination (See 

Table 2).') Moreover. another "uu-impa~lcd" fish sampled location in 2001. Kendall Creek. was 

electro-fished u year later by the Forest Servlcl:. Tht: Forest Service did not find any lish even 

though the stream had historically contained healthy populations oftrout.76 UnfOltunateiy. 

Kendall Creek is just ont: more now harren site due to possible selenium mine pollution. ff the 

Idaho Department of Health and Welfare resumed data collection. it would likely issue 

consumption advisories for other streams in the Blackt'oot and Salt Rivt:r watersheds. However, 

the agency is unlikely to resume data colh:ction given current economic pressun: un state. 

Without information conceming selenium releases. those '\\ilO are aware ofthe dangerous 

seleniwl1 issue art! concerned that people who consume: !ish in the area will become ill and that 

more fish populations will disappear. 

While not addressed by any official health advisory, The impacts of selenium to upland \vildli fe 

are not limited to elk. Lower elevation wetlamJs that receive the drainage from disturbed mine 

locations produce vegetation having more than 53 Illglkg Se.17 This undoubtedly adversely 

affects wetland foragers such as moose and waterfowl, especially considering that symJ'toms of 

selenium toxicosis occurs in livestock consuming vegetation containing :::.3-5pg/g Se.7 Unlike 

removal of domestic livestock, restricting \\ildlife from thl:~\,;' highly contaminated areas is not 

feasible. Therefore. infot1uation regarding selenium releases into this cl:osyslcm would henetir 

those consuming wild game. Given the toxicity of selenium 10 the environment-and the 

attendant health risk posed to humans-including phosphate mining in the TRl progranl would 

advance the purposes of EPCRl\ and protect human health in southeast Idaho. 

Ill. The Phosphate Mines of southeast Idnho arc in Close .·roximit)l to One Another 

Nearly half of the U.S. phosphale reserves lie in a central area \vhere the stales of Montana. 

Wyoming. Utah, and Idaho conjoin. Within these phosphate rock bearing formations 

CPhosphoria"), selenium occurs naturally. The Meade Peak Memher of the Phosphoria 

lurmation contains the highest concentrations. 79 Selenium. a listed § 313 toxic chemical,so is 

present in relatively insoluble forms \vithin the formation itself but transforms into ~oluble 

foml-selenitc and/or ~elenate-when exposed to \vcathering and oxidation. The process of 

open pit phosphate ruining produo.:es both of these mobile fonns of selenium. Open pit mining 

also leads to the mined materials expanding by U!:l much as 30%; such waste rock is typically 

disposed of in external piles or waste dumps. III Water runoff and infil tration then carries 

--------_.._--­

'Sid 

76 USDA Forest St:rvic<:, Caribou-Targhee 'lational Forest, 2(){)2 Cutthroat Trout Fish Distribution Survey Report, 


Kendall Creek. 26 June, 2OQ2, 


77 Mackowiak, CL, Amacher, M.e, Hall, 1.0.. and !·Ierring. J,R. Uptake of "H!lenium and other contaminant 


elements into plants and implications for Grazing Animals in Southeast Idaho. LiJe C:l'de o/fhe J'ho.>piluriu 


Fumwliuf/. Frum Dep()sili/J/l11! 1112 PosT-Minil1!!: EIIVirol1fflftni. Pg. 527. Fdlted by James R. Heill. 2004. 


7&!d at 501. 


T~ McKelvey, V.E.. Strobel!, 10., and Siaughlcr. AL 1986. The Vanudifcmus lone of lilt' Phosphoria Formatil1!l 


ill wesltlrn Wyoming and soulh\!USlem Idaho. US Geol. Surv .. Prof. Paper, 146" 


&J 40 C.ER. § 372.65. 


&1 Verbal COllUTIunicatioIl Bill Stout, BlIreau of Land Management 25 Oct. 2005. Poc.1telio, Idaho 


12 

selenium from these weathering mine wastes into the environment.lIl C~nramination is 

particularly severe in southeast Idaho, where seeps discharging selenium from mine waste piles 

occur widely throughout the region's phosphate production area. SJ At least 28 active tmd 

inactive phusphate mines exist in southeast Idahu. Two of the area's watersheds, the Blackfoot 

and Salt River, (.;urrently haye the highest density of ph os ph ute mining use in Idaho, with eleven 

mines located within twenty-one miles of one another and a total surface disturbance area of 

almost twenty square mile::".8-1 Seventeen ofthese mine sites. including rtvo of the active mines 

(Smoky Canyon and Dry Valley). are so contaminated by selenium that thev are under CERCLA 

deanup orders. The third activ~ mine. Monsanto's South Rasmussen Ridg; Mine. has been in 

a11l1o~1 constuntyiolation of water quality regulations since 2002, just two years after the mine 

was perll1itted.R~ Just as alamling is that one of the mining comp.'lnics responsible for selenium 

contamination, Nu-West Industries, Inc., recently sued the fcdtmil government. asking that the 

American taxpayer pay for all costs associated with cleanup at ttlUr or its mine siteg that art;.' 

under CERCLA cleanup orciers.ll6 Continued mining in the region in such a concentrated manner 

ensures the sdcnium problem will contimll: as a human and ecological hazard in southeast Idaho. 

Increased public awareness, through TRI reporting. is warranted. 

TV. Phosphate Mining Facilities hal'eo a Well-Established "History of Releases" 

A "history of releases" by phosphate mining facilities is well established. ror example. the 

Smokey Canyon mine final Euvironmentallmpact Statement C"EIS") of 1982 outlines an annual 

water quality testing procedure that includes selenium as om: of the test criteria. The water 

quality-monitoring program, testing ten locations on five local creeks. was designed to alert the 

agencies involved of any developing water quality problems ofrhis mine./!7 Analysis of surface 

mine waste exceeded J:::PA water quality standards in 1980 [n othr;:T words. problems wi Lh 

selenium contamination were known at kasllwcnty-tive years ago. 

Pole Canyon--the dumpsitc for the initial phases of mining aL Lhe Smoky Canyon Mine-was 

filled with approximately 30 million cubic yards mine overburden between 1985-\990. As early 

as 1987, \-vater quality samples taken from Pole Canyon Creek below the dmnp were in excess 01 

Idaho standards for surface water. 811 By 1993, seJenium concentrations at Pole Canyon Creek 

were measured at 1 70 ~lg/L. more than three times the drinking water standard, 34 times more 

than the Idaho standard for surface wakr. and remarkably higher than that same stream's control 

8: Desborough, G, E. De Win, 1. Jon~s, A. Meier. and G. MeckeL 1999. I'reliminary Mineralogical and Chemi~al 

Studies Related to the Potential Mobility of Selenium and Associated Elements in Phosphoria Fonnatill/l Strala, 


Southeastern Idaho. USGS Open File Repon 99-J20 


SJ Smokey Canyon Mine. Panels B & C Final Supplemental Fnvlronmentallmpact StOlte-memo April. 2U02. 


84 Presser, TS.. Piper, D.Z., Bird KJ., Skorupa.J.P . .llamiiton. S.J., Detwiler, ':i J, and Huebner, M.A. Selenium 


LoaJing Through the Blackfoot River Watershed: Linking Sources to Ecosystems. Life Cp;/e olthf: rlwsplwriu 


Formatiun. From Deposition TO Pos/'ii-lining Environmenl pg. 439. Edited by James R. Hein, 2004. 


1!5 EPA No(i-.;e ofViolations, January <1. 1005, february 1,2006, ':'cpternher f., 2007 It is our understanding that 


another EPA NOV was issued in early 200&. 


B/, Nu-Wesl Mining, Inc. and NtI-West Industries, Inc V. United States of America. Complaint (,'Campi."). 


H7 Smokey Canyo~ Pho~phate Mine final ElI.ironmtlntnl Impact Stnrcmcnt. March 1982. pgs. 2-22.2-23 l.R. 


Simplot Co., Caribou County, Idaho. 


88 Smoky Canyun Mine, Panels rand G Expansion Final Environmental Imp<lct Statement, Octobc:r 26. 2007. pg. 5­

34 (';Beginning in 1987, fOl:Jower Pole Canyon Creek belqw the overburden fill, eyeD' sample CQHeded at thai :.il~ 

has contal!ll:d scknium concemratiQllsJUeater tban 0.005 Ille/!."). 

::;amplc of .001 mg/L taken upstream ufthe mine at the same time. The 1993 sampling data 

showed decreases in macroinvertebrate populations. 89 

Annual reports trOln 1994 and beyond continued to show an increasing Se problem spreading to 

other streams tested under the monitoring program. Water samples taken ti'om Pole Canyon 

Crcek in t999 hau sdenium concentrations that averaged 2,350llglL. TI1C" Pole Canyon' 

overburden dump material subsequently polluted both Pole Canyon Creek as ..veIl as underlying 

grounciwater in the Wells formatjun aqui rer V\>ith high conccnlmtions of selenium. After ten 

years. this groundwater pollution also reached Hoopes Springs. located more than 2.3 miles away 

from the dump. The waters of Hoopes Springs and Pole Canyon Creek both carrit:d the 

contamination downstream into Sage Creek, pui:ioning this stream as well. 

Despite the data, no action was taken until 2002 after the media picked up on the extent of the 

selenium contamination problem at Smokey Canyon. The J.R. Simplot Company and the EPA 

signed an Administrative Order on COllsent under (,EReLA to begin an investigation. An 

Engineering F.valuationiCost Analysis ("EE/CA "), based on u Sitc Investigation Report:mWa!i 

compkled in June 2006 The EPA approved only one ortive recommendations in the EE/CA in 

the fall of2006.91 

That same month. Simplot initialed the '~Pole Canyon Removal Action." This remediation effort 

focused on diverting Pole Canyon Creek into a pipe and routing it around the contaminated 

waste dump. The US Forest Service and Simplol ~taled in a memo: "implementation of the 

proposed action would have an immediate effect to reduce Lhe release of contaminants from 

waste rock stored in Pole Canyon ODA." The tirst attempt to divert the stream was completed 

in the fall of2006. Hm.vl:ver, the new pipe failed in February 0[2007 spilling the l.:reek back 

into the 'vvaste dump. A new diver::iwn pipe was completed in the fall of 2007. as well as an 

infiltration basin at the upper end of the Pole Canyon wuste dump. 

In reality, and cnntrary to all assurances from Simplot and the agencies. a 200~ report 

documents that the remediation work at the Pole Canyon \vaste dlUnp has nullt:d to the desired 

results. The 2008 Monitoring Report f()J' the Pole Canyon Removal Action. prepared by Simplol 

in October 2008. contains sampling data taken through August 2008. The repoti's data show that 

instead of im,.nediate~y lowering selenium contamination aI Pole Canyon Creek and Hoopes 

Springs as the agencies and Simplot claimed, pollution levels hav~ dramatically increased. 

The 200~ report. including water samples data taken nine months after the installation ofthe Pole 

Canyon Cr~ek divt:rsion pipe and infiltration basin, shows selenium concentrations in Pole 

Canyon Creek where it discharges from the w'aste disposal area. at 5.010 ~g/L in May. Tllis is an 

increase of 4.018 mg/L from May 2006 when st:lenium concentrations Wi;;fC at 992 j.l.g/L. The 

May 2008 concentration of 5,01 0 ~g/L is greater than 1000 times the State standard for selenium 

in surfact:! waters. The repon also records selenium concentrations in waler l:ulkctcd at Hoopes 

99 Mariah Associates Inc. Lnramil" Wyoming. Aquulic Monitoring Program tor Smokey Canyon Mine. 1994 


results. On fill: at BurC!au of Land Management office. Pocatello. Idnho. 


'1O Site Investigation Report. Newfields, July 2005, Chapt':f II, pgs. 11-15. 1.R. Silllplot Company. 


'11 Smoky Canyon Mine CERCLA Action Memorandum. USFS. Octohe,r 20()6, 


14 

I 
=1 r 

Spring has more than doubled between September 200G amI Augusr 2008, from 17.4 jlg/L to 

35.5 J.lglL. This is more than seven times the standard. . 

Water samples from Sage Creek were also parl uf the 2008 report. Sage Creek receives water 

from both Pole Canyon Creek and Hoopes Springs. The 2008 report documents that in May of 

2008 selenium concentratiuns had increased more than 27% to 9.7 J1g1L from September 2006 

when the Sage Creek concentration wa" 7.0 ~tgJL. 

Based on the 200& data. tbe Forest Service has now ackno,",vledged the substantial uncertainty 

regarding both the sources ofthe existing mine's pollution and the resulting efficacy of Simp Jot's 

limited remediation actions at Pole Canyon and Pand E. 92 In particular. the forest Service 

concludes that "waste dump" seeps at the existing mine's A. D. and F. panels "may reflect a 

Significant selenium load that is infiltrating dirc<.:tly into [the region's] groundwater now 

system.,,<n 

Mining companil:;:; assert that "selective handling" of the waste rock. which contains the higb 

selenium concentralions, is "an adequate response" to the potential release of sclenium to the 

environment. 94 However. column-leaching tests of this new process expect seepage to remain at 

levels of 81 ~lg/L 95 a level sixteen times greatcr than EPA's established ::;tandards to protect 

drinking water and aquatic life of 5~lg/L. l;'urther. ground water modeling for expansion ofthe 

Smokey Canyun mine predicts selenium contaminated "plumes." exceeding Maximum 

Contaminant Levds (MCLs) to extend offsite "at the end of a 100 year period.,.9(, This 

"adequate response" is an illustration uf how a "history of releases" is planned 10 continue into 

the distant future and impact generations of local citizens. 

Smok,q Canyon Mine's Pole Canyon dumpsite is only one of eight dumps at that mine, and one 

ofmany similar dumpsites in the phosphate-mining area. Ch:arly. phosphate mining is releasing 

large quantities of sdenium on a continual basis into Pole Canyon Creek. The sdenium 

continues to accumulate up the laod chain and will pose increasing levels of risk as seltmium 

concentrations rise. Oversight through TRl reporting ~hollJd be provided and would aid in 

preventing such futurc occurrences throughout southeast Idaho by encouraging the phosphate 

mining industry to be a "better neighbor," This is especiaI1y true because surface and ground 

water quality sampling are still the criteria by which selenium impacts are measured when state 

and federal agencies consider whether to lease additional phosphate deposits. n 

Y2 u.s Fore-st Service ID.., Comments on Simplat's Pole Canyon Effe('u"eness Monitoring Plan Revision 01. Dec. 

!8. 2008 at 1. 
 93 {d. at 4. 


9<1 Norrh Rasmussen Ridge Mint' Final Environmental Impact Statement. Pg 44. August 2003. 


9!i Maxim Technologi.:s 111\;. Buzl!ITmn, Montana. Simplat Slookey Canyon Mme Expansion Environmental Impact 


Statement Column Test Report prepared for J.R. Simplot Company. 2002. 


% Buck, Brian W., Winegar, Bru~. IlIlt!graliun of SliTface Water Managemcnt with Mitigation ol'Oround Wal.l!f 


Impacts at a Propost'ti Phospharc ""lim: Overburden Facility 


http://www.jbN.nv.com!about;arllcll!:.iHuckand W inegarPaper4.pdf 

~7 North Rasmussen Ridge \1ine final Environmcntallmpact Statement. Append!x n. Allgust 2003 

15 
7 _E "'" 

V. Value of the Information to the l'ublic 

Requiring phosphate mines to reporL under the TRl program will increase available information 

and further th~ purpose of ElleRA. TRl rt:porting not only increases the citizenry's knowledge 

of toxins. but also raiseil awareness of health and environmental risks. This inio;matiol1 allo~s 

the public to make Illore informed decisions as to where they desire to work, live, buy property, 

hwlt, and to raise crops or livestock for human consumption. The TRl provides information that 

can be used by government. local t:OJ1ununitics, and others as a "yardstick" to measure progress 

and st:l goals for environmental ckanup. '1!1 ­

Many people-Iul:ally and nationwide-are parlicularly concemed abollt spccieh protected by 

the Endangered Species Act ("ESA'"). The phosphate mining region of southeast Idaho is home 

to the Canada lynx. a listed specieR_ Additionally, at least fourteen species in the region me 

Lonsidcrcd "sensitive" by state .md Federal agencies. indLlding Yellowstone cutthroat trout. Of 

th~ tweIve geographic arca.<; managed fur the Yellowstone cutthroat trout. the upper Blackloot 

and Salt River drainages have suifered the highest selenium concentr<;ltions?) This habitat 

degradation is one ofthe reasons the Y dlowstone cutthroat trom had been petitioned for 

inclusion on the threatened list ofIhe ESA. Ifphosphatc mines were sllbject to the TRJ program. 

concerned citizens would have mnrc infonnation to use in gauging the condition of these habitats 

over time 

Much of the impacted area is within the Caribou-Targhee National Forest, where few restnctions 

limit when: people can recreate, hunt, fish, or drink the wal~r. As more people use the lands. and 

move into the area communities. the greater the health risk posed. Many counties in and 

bordering the Greater Yellowillone Ecosystem have a growing population rate of approximately 

15%.106 Some areas have grown at ph~Ilumenal rates. For example, Teton County. Wyoming 

saw a 63% growth rate between 1990 and 2000. Ill! Across the state line, Teton County. Idaho 

grew at over 74% over the same time period. IUl Most ofthis growth is due to people moving into 

the area. These new residents arc unlikely to have any knuwledge ofthe selenium contamination 

danger. Updated infurmation about selenium releases, which could be provided by TRI 

reponing...vould raise awareness and better protect the public. 

Since the livestock deaths in '96 and '97, the phosphate mining companies have not made 

information concerning the quantities ofselenium released to the environment more available. 

In fact, it isjust to the cnntrary. Gyes initial request for waste ruck production infomlation 

from the Bureau of Land Management ("BLM"), the permitting agency for phosphate mines, 

was denied. The 8LM ciled proprietary reasons 103 The GYC tiled a Freedom oflnformation 

Act (,'FOIA") request "'lith the Department of the Interior to obtain the amounts of \-vaste rock 

produced to understand the amounts of selenium being released annually. This too was denied 

fur 'llleged proprietary !'casons. However. these requests revealed that the Bureau of Land 

'J8 61 Federal Register. 33588 


,)<) Idaho Fish and Gum~.2000. Comments to the U.S. Fish nnd Wildlite Service r.:garding pelition to list 


Yellowstone cutthroallruut as threatened under the Endangered Specie, Act. Boise, Idaho. 


100 us. census figures! 990-2000. huo;ifgukkfacls.censusiov. 


1\1\ Id 

l<l~ Ii/. 

lu3 Department of Imcrillr, Bureau of Land Management. Pocatello, Idaho. Electrouic communication. II Oct. 2005. 

16 

77 WI 'k' 

Management provides little oversight of the phosphate mines. [n the FOIA letter of denlul, the 

Bureau of Land Management stated: "all mining companies trcat all material mined, ami not 

shipped tor processing. as overburden and do not distinguish the ditTerence between rock types 

in their reports.',I04 Without stringent oversight. it seems unlikely the selenium-laden \vastc rock 

is bring handled in accordance with the "Best Management Practices" required by mining 

pelmits. The dit1iculty fur anyone to obtain infoTI11ation regarding selenium release information 

is itselfa compelling reason tu require phosphate mines to report under the TRl program. as [his 

may be (he only way lor the public to stay informed on the amounts and dangers ofselenium 

where they live. 

The mining companies assert that the Best Mauag~ment Practice (BMP, of "selective handling" 

adequately prevent selenium from entering the envilOlUm:m. However, the companies admit: 

:'wit~ :he ~.7Q.f0ing selenium investigations ... all the BMPs needed ~vc not. yet been "­

ld\!ntl11ed. Moreover, contalI1ment does not negate the TRl reportmg reqUIrements. Ihe EPA 

has concluded that u release "does not necessarily connote direct physicaJ contact hetween the 

toxic chemical and environmental medium, .. [and] is not required before section 313 reporting 

requirements an: triggered. ,,106 This quote goes to the heart of EPCRA as it recognizes the 

potential for future releust:s. TRI reporting would allow citizens and local governments to plan 

for the possibility ofsuch m:currences. 

VI. 	 The Growing Threat Caused by Continuing and Increasing Selenium 

Contamination 

Inclusion in the 'flU program is especially warranted given the continuing and increasing levels 

ofselenium contamination in southeast Idaho from phosphate mining. Fish sampling conducted 

by GYC and the Idaho Department of Euvironmental Quality illustrates this increase. in \iay 

2001, twenty-two fish samples were collected trom nine streams in the phosphate mining area. 

ranging from 3.5 to 15.2 ~lg/g Se whole fish tissue dry weight. I07 Four years later in 2005, 

twenty-om: samples in seven streams and rivers in the same area yielded fish that all had high 

concentrations of selenium. ranging from 5.29 !J.g/g to 34.9 ~tg/g fish tissue. dry weight. 108 In the 

2005 roood of sampling, no fish could be found in Mill Creek either by GYC or the Idaho 

Department of Environmental Quality, 109 even though this was an historically important yeT 

stream. 110 This correlates with obsenrations that "fish populations can decl inc or disappear over 

11)01 Demal of FOlA fel..jUesl. 1278 (FOIA No. lD-2006~03) EFTS BLM-2006-00019. 5 Dl:c. 2005 

IUS Norrh Rasmussen Ridge Draft Environmental Impact Statement. Pg 2-30. March 2003. 

WI> U.S. Distric( Court lor the Disu-ict of Colorado. Civil Action No. t)j}; 2665. 200 I U.S. Dist. Lexis 915: 51 ERe 

(UNA) 2104 

1(}711amillo.l1, S. J., Buhl, K.J.. May. 2001. Selenium and other trace elements in Water, Sediment. Aquatic Plant". 

AquatIc Illveitibrates. and Fish from Streams ill Southeastern Idaho Near Phosphate Mining Operadon3. Pg. 24. 

Ill!! Weber, Frank. Research Triangle Institute. Research Triangle Park, NC. Technical Report. RTI Project 

No.:O~973.002.009, Sep. 19. 200S. 

Ll'! Verbal communication. 30 ~ov.. 2005. LylU1 VanEvery. Richard Clegg. Idallo Department of Environmental 

Quality. 

110 Letter dated August 5, 1980 from Russ Thurow. Idaho Department of Fish and Game, Soda Springs. !D. to Dean 

Grcwcr, &"lda Springs Rangel District. Caribou National Forest. "In 19711, we electrolished sections of Kendall, 

Mill. and Spring Creeks. W-.: observed densities af20 juvenile cutthroat and 23 .;utthroat trout fry per 100 meters of 

Kendall Creek. In Mill Cn:ek, we surveyed two sections and den~ities equaled 37 l;uUhroal and 24 cutthroat trout 

fry per 100 meters with(in) the U.S. Forest Service Boundary." 

17 

the course ofa tcw years... unless one is cognizant of the subtle way in which selenium 

operates,,. consistent \'vith the Belc'Ws Lake case discussed ahove. 111 III the absence or tish 

samples, other parameters to gauge the health of Mill Creek are selenium concentrations in its 

\\'ater, macroinvertt!brates, and macrophytes. In J\'lay 2005 water from Mill Creek had a 

selenium concentration 01'417 ~tg/L.1!2 the macroinvertcbrate sampl~ had a Se concentration of 

43.6 ~lg/g. and the maCrOph)1e sample \\a5 recorded at 77.6 f-tg!g.JIJ In 2007, however, Gye 

captured om: brook trout in Mill Creek. It had a whole budY. dry weight selenium concentration 

of 37.2 ~lg/g.l14 - ­

Not only is the selenium contamination problem growing, it~. escalating III an exponent{g! n1te 

hased on allfhJ' dC/fa referenced in this petifion. Selenium is transported into the environment 

via waler run off and infiltration. Drought conditions throughout much of the western L nilcd 

States has reduced traditional Jlows in the Blackfoot Rivl.!f vvatershed by almost 50(%.11:' Asa 

result. selenium loadin¥r6to the watershed .co.uld increase ~ to 7 timeR the :ulTen~ am~unt with a 

return to normal flows flood events \vl1I1I1creasc the nsk and levels of selenIUm Ifl the 

streams throughout the phosphate-mining n:gion. 

VII. Conclusion 

The information currently available is insufficient to adequlltdy protecl the puhlic interest. The 

Idaho Department of He-alth and W dfare' s review of selenium contamination lor their most 

recent Health Assessment was based on samples taken almost tive yt!afS ago." 7 Tht: public 

should have up-to-date infomlation so that risks can be tracked from year-to-year. Furthermore, 

in researching the ddta published regarding selenium. om: quickly learns that knowledge 

conccminf!, the bioacctunulative nature of selenium is necessary to fully understand the impacts 

of this listed § 313 toxin. However, lhe recently released Site Investigation Report (,'SIR") 

concllming Smokey Canyon Mine omits an), discussion o1'bioaccumulation in all urits 819 

pages. Jl8 TIllS is disconcerting since that SlR W~ supposedly designed to address the impacts 

of selenium released by this mine's dump sites and to form a basis for formulating of CERCLA 

mitigation measures. This is also disconcerting because future CERCLA actions arc currently 

being developed for other mille OVillers and will likely mimic the Smokey Canyon SIR. 

Information concerning selenium \NiH not only help citizens protect themselves but will also 

empower them with a measure of oversight. Additional oversight may prompt the mining 

III Lelnly. Dennis. Selenium Impacts on Fish: An Insidiou;; Tinle 30mb. Human and Ecological Risk Assessment· 


Vol. 5, No. 6.pp. 1139-1151 (1999) 


IJ2 Weber. hank. Resear;:h Triangle Institute. Research Triangle Park, NC. Technical Report. RTI Project 


No :Ol-l973.002.009. May 19,2005. 


113 Weber. fran" Resea~ch Triangle Institute, Research Tnanglc Park, NC. Technical Repon. RTI Project 


No :08973.002.009. Sepl<:mber 19.2005. 


IH Weber. Frank. Resean:h Triangle Institute. Research Triangle Park. NC. Tecbnical Report. RTl Project 


:-./o.:0201N71002.009. January 16.2008. 


Il5 Presser, I S., Hard),. M, Huebner. M.A., and LaM\lthe, I'J. Selenium Loading through the Blaekfo.lt River 


Wa!ersh~d I.inking Sources to E~osystems. /,t/e (reit' of'fhe Phwphoriu Fvrm(.1/irm: FrUin DepOSition (u the PO$/­


Mifling [tlm·onnum!. PgA53. EJiled by James R. Hein. 2004. 


I It. Id. at 457. 

II: Idaho Department of Health and Welfare. 2005 Health Assessment of Southeasl idaho Phosphate Resource Are<l. 

I II Site Investigation Report. Newfields, July 2005. Smokey Can}on Mine. J.R. Simplot Company 

18 
I 

intere~ts to become mort diligent in complying with current Clean Water Act provisions and 

pl'evt:nl future violations ofthdr National Pollution Elimination Discharge P~rrnit System MuJti~ 

Sector General Permit that were noted at four separate locations by differing owners in u 

September 2004 inspection. I !'} 

The problems associalt:u \\ith c;eJenillm contamination in southeast Idaho ami the Salt River 

drainage in western Wyoming have grown at an CllOffilOUS rate in the past decadt: and, as 

illustrated above. are still growing. CiLizens need to haw access to as much infornlation related 

to selenium releases as possible. The Greater Yellowstone Coalition is hopeful that the EPA will 

give this petition request serious and immediate COllsideration resulting in the promulgation of a 

rule to require phosphate rock mining taciJitics to report releases of listed § 313 toxic chemicals. 

Please respond in a timely manner, as required by § 555(c) ofthe Administrative Procedure Act. 

II') u.s. EPA Region 10. Norice of Violation and Requesl for Information. Scpo IJ-J 5.2004. MSGP tracking nos 

IOR05A35I, IDR05A352. IDR05A382, mlW5A469 

19 
Lisa Jack~Qn, Administrator 

Envir(lW1lental Protection Agency 

Ariel RiosBuilding 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 ", 

...