162 North Woodruff 

Idaho Falls, Idaho 83401 

ph (208) 522-7927 

fax (208) 522-1048 

E-mail: 

gyc @greateryellowstone .org 

On the web: 

www.greateryellowstone.org 

January 27, 2006 

Steve Johnson, Administrator 

Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

7R`E`C~e~IVE~g 

FEB - 6 MM 

4 

OFFICE OF 7-146 

~~~AT 

RE : Petition to add Phosphate Rock Mining to the list of facilities required to report 

releases of chemicals under Standard Industrial Classification Code 1475 

Dear Administrator Johnson: 

In reference to section 313 (b) (1) (B) of the Emergency Planning and Community 

Right to Know Act (EPCRA) 42 U.S .C. 11023 (b) (1) (B) and provided for in 

sections 553 (e) and 555 (e) of the Administrative Procedure Act, the Greater 

Yellowstone Coalition hereby requests the Environmental Protection Agency to 

promulgate a rule that would add Standard Industrial Code (SIC) 1475, also known as 

212392 under the North American Industrial Classification System (NAICS), 

Phosphate Rock Mining to the list of facilities required to report releases of toxic 

chemicals listed in the Toxic Release Inventory. Enclosed with this correspondence 

is our petition to the EPA to promulgate such a rule. We also ask that the EPA 

publish this petition in the Federal Register so that it may become part of the public 

record. 

The Greater Yellowstone Coalition is a 501 (c) (3) non-profit conservation 

organization with 13,000 members that is devoted to the conservation and health of 

the Greater Yellowstone Ecosystem. The Greater Yellowstone Ecosystem 

encompasses eighteen million acres including Yellowstone and Grand Teton National 

Parks, six national forests, three national wildlife refuges, and approximately three 

million acres of private lands. 

Phosphate mining has been responsible for the release of large quantities of selenium 

(Se) in Idaho annually. These releases if Se have had a deleterious effect on the 

environment resulting in selenosis deaths of livestock and high bioaccumulations in 

fish and other wildlife, prompting the Idaho Department of Health and Welfare to 

issue a fish consumption advisory and conduct several health consults based on 

selenium releases to the environment.' While the issue of 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 pose. Therefore the inclusion 

' Idaho Department of Health and Welfare, 2002. Health Consultation, Selenium in Fish Streams of the 

Upper Blackfoot River Watershed. 
of phosphate mining in SIC code 1475 is needed and fulfills the intent of EPCRA in Toxic . 

Release Reporting. 

The Greater Yellowstone Coalition is confident that after your review you too will agree that 

Phosphate Rock Mining operations should be required to report releases of selenium to the 

environment. 

Sincerely, 

Marv Hoyt 

Idaho Director 

Enclosure 
Petition to add Phosphate Rock Mining to the list of facilities reguired to report 

releases of chemicals under Standard Industrial Classification Code 1475, or North 

American Industrial Classification System 212392 

Submitted by the Greater Yellowstone Coalition 

Introduction 

The purpose of EPCRA is to provide the public with information concerning hazardous 

chemicals that may affect them in their environment and to allow them to make more 

informed decisions . EPCRA also has the effect of motivating industries to become better 

neighbors through chemical use reductions and mitigation measures. Under EPCRA 

section 313 (b) (1) (B), the EPA Administrator may add an industry group to the list of 

those already required to report releases of toxic chemicals under the Toxic Release 

Inventory (TRI) if the industry meets established criteria of the section. Those criteria 

are: 

(1) chemical toxicity and impact to the surrounding environment, 

(2) meeting chemical activity and use thresholds, and 

(3) value of information to the public . 

As will be illustrated and documented in this petition, the inclusion of phosphate mining, 

SIC code 1475 facilities, and requiring them to report TRI releases meets the statutory 

requirements and intent of EPCRA. 

1. Chemical toxicity and impact to the surrounding environment 

Quoting section 313 (b) (1) (B), the Administrator may include a new industry group if 

"such action is warranted on the basis of toxicity of the toxic chemical, proximity to other 

facilities that release the toxic chemical or to population centers, the history of releases of 

such chemical at such facility, or other such other factors as [deemed] appropriate." 

Nearly half of the U.S . phosphate reserves lie in a central area where the states of 

Montana, Wyoming, Utah, and Idaho are conjoined. Within these phosphate rock 

bearing formations (Phosphoria), Se occurs naturally and is highest in the Meade Peak 

Member of the Phosphoria formation.' Se, a listed section 313 toxic chemical, is present 

as relatively insoluble forms within the formation and is transformed into the soluble 

forms of selenite and selenate when exposed to weathering and oxidation as in open pit 

mining processes. These mobile forms of Se occur from weathered mining wastes and 

are transported into the environment through water runoff and infiltration of water. 2 In 

1 McKelvey, V.E ., Strobell, J.D., and Slaughter, A.L . 1986. The Vanadiferous Zone of the Phosphoria 

Formation in western Wyoming and southeastern Idaho. US Geol. Surv., Prof. Paper, 1465. 

2 Desborough, G., E. De Witt, J. Jones, A. Meier, and G. Meeker. 1999. Preliminary Mineralogical and 

Chemical Studies Related to the Potential Mobility of Selenium and Associated Elements in Phosphoria 

Formation Strata, Southeastern Idaho. USGS Open File Report 99-120 
the process of open pit phosphate mining, the mined materials expand by as much as 

30%, and as such, waste rock must, at times, be disposed of in external piles or waste 

dumps.3 Seeps discharging selenium from these piles are known to occur widely 

throughout the phosphate production area in southeast Idaho .4 

The Blackfoot and Salt River watersheds currently have the highest density of phosphate 

mining use in Idaho with eleven mines located within twenty-one miles of each other 

with a total surface area disturbance of almost twenty square miles .s Of these eleven 

mines, four are currently active, though leasing areas and areas for expansion are under 

review. 6 Continued mining in the region on such a concentrated basis can only ensure 

that the Se problem will continue to increase as a human and ecological hazard in 

southeast Idaho. Increasing public awareness, through TRI reporting is warranted. 

Se is an essential micronutrient but becomes toxic with elevated exposure in embryonic 

development, as biochemical pathways are unable to distinguish Se from sulfur. This has 

the effect of creating congenital defects, which have been noted in the embryos of fish 7 

and waterfowl eggs in the area of phosphate mines that exhibited Se concentrations eight 

times the allowable amount for viability.8 Se has an equally onerous toxic effect in that it 

bio-accumulates in the food chain, which impairs growth and affects reproductive and 

immune capacities of animals. 9 

Case studies on the impacts of Se on fish reproduction are well documented. Two such 

cases are Belews Lake in North Carolina and Martin Reservoir, Texas, both of which 

were contaminated by Se laden ash wastewater from coal fired electric generating 

facilities . Belews Lake was contaminated over a period of nine years and of the twenty 

species of fish originally there, only two remained after the nine-year contamination 

period (1974-1985). The fish in Belews Lake were extirpated due to reproductive failure. 

Because of the bioaccumulative nature of Se, contaminated lake sediments at the base of 

the food chain were still causing developmental abnormalities in the re-stocked young 

fish as of 1996.1 ° It is important to note that this ecological disaster resulted from flows 

3 Verbal communication Bill Stout, Bureau of Land Management. 25 Oct. 2005 . Pocatello, Idaho. 

4 Smokey Canyon Mine, Panels B & C Final Supplemental Environmental Impact Statement. April, 2002. 

5 Presser, T.S ., Piper, D.Z., Bird K.J ., Skorupa,J.P .,Hamilton, S.J ., Detwiler, S.J ., and Huebner, M.A . 

Selenium Loading Through the Blackfoot River Watershed: Linking Sources to Ecosystems. Life Cycle of 

the Phosphoria Formation : From Deposition to Post-Mining Environment pg. 439 . Edited by James R. 

Hein. 2004. 

6 US Department of Interior, Bureau of Land Management. 7 Cumbie, P.M. and Van Horn, S.L. 1978 . Selenium accumulation associated with fish mortality and 

reproductive failure. 

g Presser, T.S ., Piper, D.Z ., Bird, K.J ., Skorupa, S.J ., Hamilton, S.J ., Detwiler, S.J ., Huebner, M.A. The 

Phosphoria Formation: A Model for Forcasting Global Selenium Sources to the Environment., Life Cycle 

of the Phosphoria Formation: From Deposition to the Post-Mining Environment. Pg. 312. Edited by James 

R. Hein. 2004. 

9 Hill, Sheryl . Aquatic Systems Biologist. Pocatello, Idaho. An Analysis of Selenium Concentrations in 

Water and Biological Tissue Samples Collected in the Upper Blackfoot River and Salt River Watersheds 

from 1997 to 2003 ., 2005 . lo Lemly, Dennis. Selenium Impacts on Fish : An Insidious Time Bomb. Human and Ecological Risk 

Assessment: Vol . 5, No. 6, pp. 1139-1151 (1999) 
of Se laden water having concentrations of 150 -200 Se ~tg/L, which is far less than the 

concentrations of Se in streams in the vicinity of the phosphate mines. Pole Creek that 

drains part of the Smoky Canyon Mine had Se levels that averaged 2,350 gg/L Se. 

Maybe Creek, which drains the South Maybe Canyon Mine, has had Se levels as high as 

1,140 gg/L Se . 11 East Mill Creek, which drains the North Maybe Canyon Mine, had 

samples, which measured 417qg/L Se in the spring of 2005 .12 

Recent sampling indicates that there is already contamination of fish, aquatic plants, and 

aquatic insects throughout the phosphate-mining region . 

13 These large amounts of Se 

released to the environment by phosphate mining operations pose significant risks to the 

aquatic ecosystems of the Blackfoot River in Idaho and the upper Salt River in Wyoming. 

Between 1997 and 2003 thirty-one separate streams and rivers were sampled for Se in the 

Blackfoot and Salt River drainages in the phosphate-mining field. Samples included; 

water, sediment, aquatic plants, invertebrates, and fish . All of the streams but three 

exhibited a high percentage of samples in each of the above mediums that exceeded the 

"levels of concern" published by the U.S . Department of Interior in 1998 .14 In 2005 

seven of those streams were re-sampled . Three fish were collected from each stream 

totaling twenty-one samples . Of those twenty-one fish, seventeen exceeded the proposed 

EPA standard maximum of 7.91 ~tg/g Se dry weight criterion to protect aquatic life ." 

Recent aquatic invertebrate sampling reviewed by a representative of the U.S. Fish and 

Wildlife Service prompted the following statement, "we managed to discover aquatic 

invertebrates with the highest level of selenium (788 ppm) ever reported from much more 

intensive and extensive sampling across the western U.S ."16 One could presume a similar 

"Belews Lake" catastrophe is ongoing in southeast Idaho and the upper Salt River 

drainage in Wyoming. 

The environmental damage is not limited to aquatic ecosystems . On at least five 

occasions since 1996, livestock deaths have been attributed to selenosis in the vicinity of 

phosphate mines in southeastern Idaho. Six horses in 1996 and another two in 1997 were 

afflicted following exposure to relatively low concentrations of selenium over an 

extended period . Six of the eight were euthanized .l7 In September 1999, approximately 

11 Hill, Sheryl . Aquatic Systems Biologist. Pocatello, Idaho . An Analysis of Selenium Concentrations in 

Water and Biological Tissue Samples Collected in the Upper Blackfoot River and Salt River Watersheds 

from 1997 to 2003 ., 2005 . 12 Weber, Frank. Research Triangle Institute, Research Triangle Park, NC. Technical Report. RTI Project 

No. :08973.002 .009, May 19, 2005. 

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

No. :08973.002 .009, Sep. 19, 2005 . 

14 U.S . Department of the Interior . 1998 . Guidelines for interpretation of the biological effects of selected 

constituents in biota, 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 discernable adverse effects but are elevated above typical background concentrations" whereas 

concentrations above these levels " . . .appear to produce adverse effects on some fish and wildlife ." 

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

No. :08973 .002 .009, Sep. 19, 2005. 

16 Joe Skorupa, USFWS, in e-mail to Sheryl Hill, 9 June 2003. 17 Montgomery Watson. 1998. Fall 1997 interim surface water survey report, Southeast Idaho Phosphate 

Resource Area Selenium Project. Prepared for the Idaho Mining Association Selenium Committee. 
60 sheep died from selenium contaminated forage or water near the Stauffer mine. l g 

Again in June 2001, approximately 160 sheep died from selenium-contaminated water 

downstream from the Conda mine. 19 Yet another 327 sheep died in May 2003 after they 

had been grazing on a reclaimed overburden dump site near the Conda mine.2° Many of the sheep deaths resulted from acute toxicity of selenium and death occurred within a 

very short period of time, often within 72 hours of exposure as all of the reclaimed waste 

piles had concentrations of Se in the vegetation that far exceeded the 5mg/kg grazing 

recommendations .2 1 

As one study illustrates, thresholds for acute and chronic poisoning for grazing animals 

occurred "at numerous disturbed [reclaimed] sites" in the vicinity of the phosphate 

mines .22 At all of the sampled locations, Se concentrations in the vegetation were quite 

elevated above background levels . Pertinent to grazing, the mean tissue samples for 

legumes were 80mg/kg and grasses 18 mg/kg.23 There also exist "hot spots" having 

concentrations as high as 200 mg/kg, which would likely lresult in acute poisoning in just 

one day of grazing for cattle, sheep and other wildlife . While some of these greater risk 

areas are no longer open for grazing, 25 high levels of Se continue to pervade local forage 

and water and are responsible for elevated selenium concentrations in local cattle . In 

fact, even 150 days after removal from the range, levels were documented at 1 .3mg/kg 

indicating, "shee~ or cattle directly off of pasture to slaughter could present a hazard [for 

consumption] ."2 

Additionally there exists a potential hazard from consuming local wildlife as well. In 

2000, the Idaho Dept. of Fish and Game took muscle and liver samples of harvested elk 

at game check stations . The elk taken within two miles of mine sites exhibited muscle 

tissue Se concentrations as high as .92 mg/kg and liver tissue at 13 mg/kg. Consumption 

of such "contaminated elk liver could [result] in adverse health effects like nausea." 7 

Lower elevation wetlands that receive the drainage from disturbed mine locations 

produce vegetation having more than 53 mg/kg Se.2g This no doubt has had an adverse 

effect on wetland foragers such as moose or waterfowl when one considers that 

18 Idaho State Journal. 12 Nov., 1999 . Pocatello, Idaho. 

19 Idaho State Journal, 6 Jun., 2001. Pocatello, Idaho. 

2° Caribou County Sun, 19 Jun., 2003 . Soda Springs, Idaho. 21 Idaho Department of Environmental Quality. 22 Mackowiak, C.L ., Amacher, M.C., Hall, J.O., and Herring, J.R. Uptake of Selenium and other contaminant elements into plants and implications for Grazing Animals in Southeast Idaho., Life Cycle of the Phosphoria Formation: From Deposition to the Post-Mining Environment. Pg. 546. Edited by James R. Hein. 2004. 23 Ibid . pg. 527 24 Ibid . pg. 548. 

ZS Idaho Department of Environmental Quality. Area Wide Human Health and Ecological Risk Assessment and Related Memorandum. Rick Clegg. 2002. 26 Idaho Department of Health and Welfare. Health Consultation . Evaluation of Se in Beef, Elk, Sheep, and Fish . 27 June, 2001 . 

27 Ibid . 

28 Mackowiak, C.L ., Amacher, M.C ., Hall, J.O., and Herring, J.R. Uptake of Selenium and other contaminant elements into plants and implications for Grazing Animals in Southeast Idaho., Life Cycle of the Phosphoria Formation: From Deposition to the Post-Mining Environment. Pg. 527. Edited by James R. Hein. 2004. 
sym~toms of Se toxicosis occurs in livestock consuming vegetation containing >3-5~,g/g 

Se.2 It is not as simple to restrict wildlife, as it is domesticated livestock from grazing 

and watering in highly contaminated areas, so information regarding Se would benefit 

those consuming wild game. 

Consumption of excessive amounts of Se in humans causes various adverse health effects 

depending upon exposure. Acute symptoms of selenosis (ingestion of very large 

quantities over a short period of time) include nausea, vomiting, diarrhea, and 

cardiovascular problems . 

30 Chronic symptoms (ingestion of smaller quantities of longer 

periods) include hair/nail loss and neurological problems .31 The Agency for Toxic 

Substances and Disease Registry has established the chronic intake level at .005 

mg/kg/day of Se.32 For a 75 kg or 165 lb. person this would be .375 mg a day. Notice 

that little more than an 8-ounce steak a day from the above "depured" beef (that is, 

animals which have been removed from the range and moved to feedlots) would be at the 

chronic exposure level. While more than eight ounces of beef a day likely exceeds an 

average level of consumption for most people, it is an indicator that chronic exposure 

levels are possible for a large population . It is also very likely occurring in smaller 

numbers of people such as local ranchers, particularly given the levels of contamination 

and the various mediums for exposure in the phosphate mining area. 

A "history of releases" by phosphate inining facilities is well established. As one 

example, the Smokey Canyon mine Final Environmental Impact Statement (EIS) of 1982 

outlines an annual water quality testing procedure, including Se as one of the test criteria. 

Analysis of surface mine waste exceeded EPA water quality standards in 1980 thus Se 

risks were known twenty-five years ago. 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 of this mine. 

33 As early as 1993, sampling data 

showed increases of Se at one of the sampling sites, Pole Creek, at .17mg/L, which is 

more than threefold over drinking water standards and remarkably higher than that same 

stream's control sample of .001 mg/L taken upstream of the mine. This same year also 

noted decreases in macroinvertibrate populations. 

34 Annual reports from 1994 and 

beyond continued to show an increasing Se problem spreading to other streams tested 

under the monitoring program. 

Despite the data, no action was taken except to initiate a CERCLA investigation in 2000 

after the extent of the Se contamination had reached the public through the media. To 

date, no mitigation measures have been taken to control the Se contamination coming 

from Smokey Canyon's Pole Canyon dumpsite, which was filled between 1985-1990. 

29 Ibid . pg. 501 . 

30 Agency for Toxic Substances and Disease Registry . littp ://www.ats(ir.cdc .,i.)-ov/toxprotiles/tp92-2 pdf pg. 

15 

3' Ibid. 32 Ibid . pg. A-3 33 Smokey Canyon Phosphate Mine Final Environmental Impact Statement. March 1982 . pgs. 2-22, 2-23 

J.R . Simplot Co ., Caribou County, Idaho. 

34 Mariah Associates Inc. Laramie, Wyoming. Aquatic Monitoring Program for Smokey Canyon Mine . 

1994 results . On file at Bureau of Land Management office . Pocatello, Idaho. 
This fill in Pole Canyon is the source of the elevated Se in test results first noted in the 

1994 report on Pole Creek. It is also the source of Se water samples taken in 1999, which 

had levels that averaged 2,350~g/L Se. Selenium continues to leach from this site at 

rates that have yet to stabilize. 5 A reasonable person may ask -- if the water quality 

testing method was designed to alert all parties involved, why were not the findings 

distributed, and consequently, if the findings did not trigger remedial action to address 

the problem, then what value does monitoring have? 

It should be noted that the Smokey Canyon Mine's Pole Canyon dumpsite is only one of 

eight dumps at that mine and one of many similar dumpsites in the phosphate-mining 

area. It is also important to note that the time between the contamination first being 

noticed in Pole Creek of 0 .17gg/L and the 2,350 gg/L samples was six years and had 

grown considerably in that time. Obviously there are large quantities of selenium being 

released on a continual basis into Pole Canyon Creek. As such, they continue to 

accumulate up the food chain and could pose an increasing risk as selenium 

concentrations rise over time. Oversight through TRI reporting could be provided and 

would aid in preventing such future occurrences. This is especially true in light of the 

fact that surface and ground water quality sampling are still the criteria by which Se 

impacts are measured on not only supplements to the above EIS36 but also new phosphate 

mining leases .37 

The mining interests assert that "selective handling" of the waste rock, which contains the 

high Se concentrations is "an adequate response"3 to the potential release of Se to the 

environment. However, column-leaching tests of this new process expect seepage to 

remain at levels of 81 ~tg/L.39 This level is sixteen times greater than EPA's established 

standards pertaining to drinking water and protection of aquatic life established at 5~tg/L. 

Further, ground water modeling for expansion of the Smokey Canyon mine predicts 

selenium contaminated "plumes," exceeding Maximum Contaminant Levels (MCLs) to 

extend off site "at the end of a 100 year period. 

,40 This "adequate response" is an 

illustration of how a "history of releases" is planned to continue into the distant future 

and impact generations of local citizens . 

2. Meeting chemical activity and use thresholds 

Phosphate mining in Idaho targets the Meade Peak Member of the phosphoria formation, 

which contains high amounts of Se. It is a geologic layer of about 170 feet in thickness 

containing thin-bedded, dark brown, carbonaceous, phosphatic mudstones and 

3s Site Investigation Report. Newfields, July 2005, Chapter 11, pgs. 11-15. J.R. Simplot Company. 36 Smokey Canyon Mine, Panels B & C Final Supplemental Environmental Impact Statement. Pg. 2-11 

April, 2002 

37 North Rasmussen Ridge Mine Final Environmental Impact Statement. Appendix B. August 2003. 

38 North Rasmussen Ridge Mine Final Environmental Impact Statement. Pg 44. August 2003 . 39 Maxim Technologies Inc. Bozeman, Montana. Simplot Smokey Canyon Mine Expansion Environmental 

Impact Statement Column Test Report: prepared for J.R . Simplot Company. 2002. ao Buck, Brian W., Winegar, Bruce. Integration of Surface Water Management with Mitigation of Ground 

Water Impacts at a Proposed Phosphate Mine Overburden Facility 

http ://www .ibr-env .coill/about/articles%FiuckandWirne»arPaper4 pdf` 
phosphorites . The targeted high-grade phosphate ores lie generally at the top and bottom 

of this formation with about the center half being considered "the Middle Shale Wastes or 

Low Grades [ores] .,,41 In the mining process, low-grade ore beds that are less than .15 

meters thick in the upper and lower zones are combined with the high-grade ores. On the 

other hand, high-grade beds less than .15 meters thick in the "middle waste zone" are 

typically included as waste.42 These "middle waste shales" as the industry defines it, fit 

the description of waste rock as currently applied to metal mining facilities .43 Therefore 

any toxic chemicals, such as Se, present in the waste rock must be reported under TRI.44 

The use threshold of selenium by phosphate rock mining facilities is fulfilled by the use 

of "center waste shales" in reclamation. As defined in the 313 reporting guidance, 

"EPCRA section 313 chemicals used in mine reclamation are subject to the `otherwise 

use' threshold of 10,000 pounds ."45 It is estimated based on general ore production to 

waste rock ratio and the concentrations of Se in waste rock that between 1 .7 and 4 million 

pounds of Se is released to the environment annually by the mining interests through 

reclamation alone.46 It is unknown to the general public, however, how much Se is 

"processed" or "otherwise used" overall as the mining interests deem all ore production, 

waste rock, and overburden amounts produced annually as proprietary information. As 

such the public is in the dark regarding selenium amounts in tailings ponds or other areas 

of the mining operations that impact the environment and the lives of people in 

surrounding communities . 

3. Value of information to the public 

Under this consideration the EPA evaluates whether requiring a prospective industry 

category to report is expected to increase the information made available or further the 

purpose of EPCRA. TRI reporting not only increases the citizenry's knowledge of 

toxins, but also gives them a heightened awareness of the health and environmental risks. 

This information allows the public to make more informed decisions as to where they 

desire to work, live, buy property, or to raise crops or livestock for human consumption. 

It is evident as well that TRI is intended to be an instrument of oversight as the 

information gained is "a yardstick by which progress can be measured by industry and 

local communities and governments . . . [and] enable all interested parties to set goals for 

environmental progress ."47 

41 Smokey Canyon Mine, Panels B & C Final Supplemental Environmental Impact Statement. Pg. 3-2, 

April, 2002. 42 Moyle, P.R ., Piper, D.Z ., Western Phosphate Fields-Depositional and Economic Models, Life Cycle of 

the Phosphoria Formation: From Deposition to the Post-Mining Environment. Pg. 589 . Edited by James R. 

Hein. 2004. 43 62 Federal Register, 23859 44 EPCRA Section 313, Industry Guidance : Metal Mining facilities . Pg. 3-28 . Jan., 1999 . 4s Ibid . pg. 3-17 46 Presser, T.S ., Piper, D.Z ., Bird, K.J., Skorupa, J.P ., Hamilton, S .J ., Detwiler, S.J., and Huebner, M.A. 

Life Cycle of the Phosphoria Formation: From Deposition to the Post-Mining Environment. Pgs. 48, 68, 

332, 458. Edited by James R. Hein. 2004. 

47 61 Federal Register, 33588 
Of interest to many people nation wide is the Endangered Species Act (ESA). Currently 

in the phosphate mining region there exist three listed threatened species : the Canada 

lynx, grey wolf, and the bald eagle. There also exist at least fourteen species considered 

sensitive. Of these sensitive species, one of great concern is the Yellowstone cutthroat 

trout. Of the twelve geographic areas managed for the Yellowstone cutthroat trout, the 

upper Blackfoot and Salt River drainages have historically had the highest concentrations 

such as the now barren East Mill Creek, exampled below.4g This degradation of habitat is 

one of the reasons the Yellowstone cutthroat trout had been petitioned for inclusion on 

the threatened list of the ESA. This species is currently under consideration as the courts 

have concluded "the [original] petition contains substantial evidence indicating that 

listing the Yellowstone cutthroat trout as threatened may be warranted. 49 Those who are 

concerned about the survival of the Yellowstone cutthroat trout and other threatened 

species would have more information on which to gauge the condition of their habitats 

over time. 

It is imperative that the EPA requires phosphate rock mining facilities to report releases 

of Se, as it is a fast growing problem. In 2002, the Idaho Department of Health and 

Welfare (or the Division of Environmental Health) issued a fish consumption advisory 

for East Mill Creek due to Se contamination. The advisory was based on seven trout 

from East Mill Creek having a mean fish tissue Se concentration of 4.8 ~tg/g wet weight 

fillet in 2002 .5° In July of 2004, fish samples were collected for the Site Investigation 

Report from streams impacted by the Smokey Canyon Mine. One of the streams, Hoopes 

Spring, produced fish that ranged from 3.4 -7.43 mg/kg Se whole fish wet weight with a 

mean of 5 .76 mg/kg.s l These high levels found in other streams could mean more 

consumption advisories are warranted. 

Another comparison illuminating the Se contamination progression began in May of 

2001, where twenty-two fish samples were collected from nine streams in the phosphate 

mining area, ranging from 3 .5 to 15.2 Rg/g Se whole fish tissue dry weight . Four years 

later in 2005, twenty-one samples in seven streams and rivers in the same area yielded 

fish that all had high concentrations of Se, ranging from 5 .29 Rg/g to 34.9 Rg/g fish 

tissue, dry weight. 

53 In the 2005 round of sampling, no fish could be found in East Mill 

Creek either by the Greater Yellowstone Coalition or the Idaho Department of 

Environmental Quality,54 correlating with observations that "fish populations can decline 

48 Idaho Fish and Game.2000. Comments to the U.S . Fish and Wildlife Service regarding petition to list 

Yellowstone cutthroat trout as threatened under the Endangered Species Act. Boise, Idaho. 49 U.S . District Court for the District of Colorado . Civil Acton No. 04-F-108 (OES) . 351 F. Supp. 2d 1137: 

2004 U.S . Dist . Lexis 26359: 59 ERC (BNA) 1998 

so Idaho Department of Health and Welfare. Health Consultation, Selenium in fish in streams of the upper 

Blackfoot River watershed. February 2003 . 

5' Site Investigation Report, Newfields, July 2005. Table 6-18 . J.R. Simplot Company. Sz Hamilton, S. J., Buhl, K.J ., May, 2001. Selenium and other trace elements in Water, Sediment, Aquatic 

Plants, Aquatic Invertibrates, and Fish from Streams in Southeastern Idaho Near Phosphate Mining 

Operations . Pg. 24. 

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

No. :08973.002 .009, Sep. 19, 2005 . 

sa Verbal communication. 30 Nov., 2005. Lynn VanEvery. Richard Clegg. Idaho Department of 

Environmental Quality. 
or disappear over the course of a few years. . . unless one is cognizant of the subtle way 

in which selenium operates," consistent with the Belews Lake case above . 

55 The only 

remaining criterion in which to gauge East Mill Creek is by its water, which in the above 

July, 2005 report was 103~tg/L, a value that is twenty times the current EPA water based 

criterion to protect aquatic life, set at 5~tg/L . 

The Idaho Department of Health and Welfare has not revisited this issue utilizing fish 

tissue samples other than those collected in 2001 and earlier even though selenium 

contamination has spread to other streams since the data for the health assessments were 

collected . Streams deemed "un-impacted" in 2001, for fish,56 are now on the Idaho Dept. 

of Environmental Quality's 303 (d) list of impaired streams due to selenium 

contamination . Two such streams are Sage Creek and Spring Creek.57 Moreover, another 

'Gun-impacted" fish sampled location in 2001, Kendall Creek, was electro-fished a year 

later by the Forest Service. The Forest Service did not find any fish even though the 

stream had historically held healthy populations of trout,s8another now barren site due to 

possible Se mine pollution . It is reasonable to conclude that based upon the latest tests, 

the Idaho Department of Health and Welfare would likely issue consumption advisories 

for other streams in the Blackfoot and Salt River watersheds. Without information 

concerning selenium releases, those who are aware of the dangerous selenium issue are 

concerned that people who consume fish in the area may become ill or that more fish 

populations may disappear. 

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

are few restrictions regarding where people can recreate, hunt, fish, or drink the water. 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 Yellowstone Ecosystem have 

had a growing population rate of approximately 15% with some achieving phenomenal 

growth such as Teton County, Wyoming, which saw a 63% growth rate or Teton County, 

Idaho growing at over 74% between 1990-2000 .59 A large percentage of this growth is 

due to people moving into the area. With the ever increasing problem of Se 

contamination in southeast Idaho, combined with the number of people moving into the 

area who are unlikely to have any knowledge of the Se contamination issues, updated 

information about Se releases, which could be provided by TRI reporting, would raise 

awareness and better protect the public . 

Not only is the Se contamination problem growing, it could escalate at an exponential 

rate . As explained earlier, Se is transported into the environment via water run off and 

infiltration . Drought conditions throughout much of the western United States has 

ss Lemly, Dennis . Selenium Impacts on Fish : An Insidious Time Bomb. Human and Ecological Risk 

Assessment: Vol. 5, No. 6, pp . 1139-1151 (1999) 56 Human Health and Environmental Risk Assessment, TetraTech EMI, 2002 Appendix H, Table H-16 

57 Draft 2002 Integrated 303(d)/305(b) Report, IDEQ 2004. 

58 USDA Forest Service, Caribou-Targhee National Forest, 2002 Cutthroat Trout Fish Distribution Survey 

Report, Kendall Creek. 26 June, 2002. 

59 U.S . census figures 1990-2000. http ://quickfacts .census.~ov . 
there 

reduced 

is the 

traditional flows in the Blackfoot River watershed by almost 50%.6° As a result 

the current 

great possibility that Se loadings to the watershed could increase 3 to 7 times 

flows may 

amount with a return to normal flows.61 There are some who believe normal return this year.62 This obviously would greatly increase the risk and exacerbate the damage already done. 

illuminated 

Since the livestock deaths in '96 and `97, when the Se contamination issue was more 

concerning 

to the public eye, the phosphate mining interests have not made information 

just to the 

the quantities of Se released to the environment more available. In fact, it is 

the Bureau 

contrary . GYC's initial request for waste rock production information from 

citing proprietary 

of Land Management, the permitting agency for phosphate mines, was denied reasons. 

63 

the Department 

The GYC filed a Freedom of Information Act request with 

understand the 

of the Interior to obtain the amounts of waste rock produced in order to amounts of Se being released annually. This too was denied citing 

Department 

proprietary reasons

of 

. However, it was revealing that there is little oversight given by the 

FOIA letter 

Interior's Bureau of Land Management to the phosphate mines. In the 

treat all 

of denial, the Bureau of Land Management states, "all mining companies material mined, and not shipped for processing, as overburden and do not 

providing 

distinguish the difference between rock types in their reports ."64 We question who is 

with 

oversight to ensure that the Se laden waste rock is being handled in accordance 

difficult 

"Best Management Practices" outlined in the mining permits . It seems, by design, 

a compelling 

for Anyone to obtain information regarding Se release information. This alone is 

seems 

reason for the phosphate rock mines to fall under TRI reporting, as this 

where 

the 

they 

only way for the public to become informed on the amounts and dangers of Se live . 

The mining interest's assertion that the Best Management Practice (BMP) of "selective handling" is an adequate answer to contain Se contamination from entering the environment is tempered by their admission that "with the on-going selenium investigations . . . all the BMPs needed have not yet been identified . 

5)65 Moreover, containment 

courts 

does not negate the TRI reporting requirements . The EPA supported by the 

between 

has concluded that a release "does not necessarily connote direct physical contact the toxic chemical and environmental medium. . . [and] is not required before section 

EPCRA 

313 reporting requirements are triggered. "66 This quote goes to the heart of 

citizens and 

as there is recognized the potential for a future release ; thus TRI reporting allows local governments to plan for the possibility of such occurrences. 

60 

River 

Presser, 

Watershed

T.S ., Hardy, 

: Linking 

M., Huebner, M.A., and LaMothe, P.J. Selenium Loading through the Blackfoot 

Deposition to the Post-Mining 

Sources to Ecosystems. Life Cycle of the Phosphoria Formation: From Environment. Pg.453 . Edited by James R. Hein. 2004. 61 Ibid . pg. 457. 62 

63 Post Register "Droughts demise". 7 December, 2005 . Idaho Falls, Idaho. 

Oct

Department 

. 2005. 

of Interior, Bureau of Land Management. Pocatello, Idaho. Electronic communication. 11 64 Denial of FOIA request. 1278 (FOIA No. ID-2006-03) EFTS BLM-2006-00079 . 5 Dec. 2005 . 66 North 

U.S . District 

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

51 ERC (BNA) 

Court 

2104 

for the District of Colorado . Civil Action No. 97 N 2665. 2001 U.S . Dist. Lexis 915 ; 

10 
4. Summary 

The 

interests

information 

. As already 

currently available to the public is insufficient to adequately protect their 

Se contamination 

discussed, the Idaho Department of Health and Welfare's review of 

almost five 

for their most recent Health Assessment was based on samples taken 

be tracked from 

years ago.67 The public should have up-to-date information so that risks can 

selenium, 

year-to-year. Further, in researching the data published regarding 

is necessary 

one 

to 

quickly learns that knowledge concerning the bioaccumulative nature of Se 

the recently 

fully understand the impacts of this listed Section 313 toxin. However, 

developed 

released Site Investigation Report concerning Smokey Canyon Mine 

which CERCLA 

to address the impacts of Se released by this mine's dump sites and from mitigation measures will be developed, omits any discussion of bioaccumulation in all of its 819 pages .68 

process for other 

This is disconcerting as future SIRs are in 

just released . 

mine owners and will, no doubt, follow the same framework of the one 

empower 

Information concerning Se will not only help citizens protect themselves but also 

interests to 

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

and prevent 

become more diligent in complying with current Clean Water Act provisions 

System 

future violations of their National Pollution Elimination Discharge Permit 

differing 

Multi-Sector 

owners in a 

General Permit that were noted at four separate locations b Y September 2004 inspection. 

69 

interests are 

Here one could conclude the mining rather ambivalent regarding selenium release issues and reluctant and 

waste 

opposed 

rock/Se 

to expose any data that may cast a dark shadow on their operations, such as production figures . 

The 

River 

problems associated with selenium contamination in southeast Idaho and the Salt 

and as 

drainage 

illustrated 

in western Wyoming have grown at an enormous rate in the past decade 

information 

above, are still growing. Citizens need to have access to as much 

hopeful that 

related to Se releases as possible . The Greater Yellowstone Coalition is 

resulting 

the EPA will give this petition request serious and immediate consideration in the promulgation of a rule to require SIC code 1475, NAICS 212392, phosphate 

Again, we 

rock 

ask 

mining facilities to report releases of listed section 313 toxic chemicals. the EPA to expeditiously publish this petition in the Federal Register. 

6' 

Resource 

Idaho Department 

Area. 

of Health and Welfare. 2005 Health Assessment of Southeast Idaho Phosphate 68 Site Investigation Report, Newfields, July 2005. Smokey Canyon Mine. J.R . Simplot Company 69 

tracking 

U.S . EPA 

nos. 

Region 

IDR05A351, 

10. Notice of Violation and Request for Information. Sep. 13-15, 2004. MSGP IDR05A352, IDR05A382, IDR05A469 

11 
Greater Yellowstone Coalition 

162 N. Woodruff Avenue 

Idaho Falls, ID 83401-4335 I I I I1 i 

I 1111111 iii ii 1 iii 

7004 05 50 0000 16S5 9115 

REQUESTED 

Steve Johnson, Administrator 

Environmental Protection Agency 

Ariel Rios Building 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460