PHOSPHATE MINING

Oversight Has 

Strengthened, but 

Financial Assurances 

and Coordination Still 

Need Improvement

Report to Congressional Requesters

May 2012

GAO-12-505

United States Government Accountability Office

GAO
United States Government Accountability Office

Highlights of GAO-12-505, a report to 

congressional requesters. 

May 2012 

PHOSPHATE MINING 

Oversight Has Strengthened, but Financial 

Assurances and Coordination Still Need

Improvement

Why GAO Did This Study

For over 100 years in the United 

States, phosphate has been mined on 

federal land primarily for use in 

fertilizer and herbicides. The 

Department of the Interior’s Bureau of 

Land Management (BLM) is 

responsible for leasing and overseeing 

such mines on federal land. In 1996, 

selenium contamination from 

phosphate mines was discovered in 

Idaho, threatening the health of 

livestock and wildlife. Mines in the area 

are now being assessed for cleanup 

under the Environmental Protection 

Agency’s (EPA) Superfund program. 

Agencies may require mine operators 

to post financial assurances, which are 

usually in the form of a bond, to ensure 

they meet their leasing and cleanup 

obligations. GAO was asked to 

determine the (1) extent to which 

federal oversight for phosphate 

operations has changed since 1996; 

(2) actions federal agencies and mine 

operators have taken to address 

contamination, amounts spent to date, 

and estimated remaining costs; and 

(3) types and amounts of financial 

assurances in place for phosphatemining operations. GAO reviewed 

agency data and documents, and 

interviewed key agency and mine 

operator officials. 

What GAO Recommends

Among other things, GAO 

recommends that BLM document its 

financial assurance practice in policy 

and consult with the Forest Service to 

better protect the federal government 

from cleanup costs. In commenting on 

a draft of this report, Interior, the Forest 

Service, and EPA generally agreed 

with GAO’s findings and 

recommendations. 

What GAO Found

Since 1996, federal agencies have taken several actions to strengthen their 

oversight of phosphate mining on federal land. For example, BLM now conducts

more detailed environmental analysis when evaluating new mine plans; requires 

phosphate mine operators to provide more comprehensive plans for reclaiming 

mine sites (restoring the land to a stable condition that can support other uses); 

and requires the mine operators to provide financial assurances that are based on 

the full estimated cost of reclaiming mines, in contrast to BLM’s previous practice of 

calculating financial assurances based simply on the acreage associated with 

mines. However, gaps remain in agency policies and coordination that could limit 

the agencies’ efforts to address contamination from phosphate-mining operations. 

For example, BLM has not documented its new full-cost financial assurance 

practice in agency policy and therefore has limited assurance that it will be 

implemented consistently. BLM also has not fully coordinated with the Forest 

Service when establishing mine lease conditions and setting financial assurance 

amounts. Limited coordination is of particular concern because 16 phosphate 

leases in Idaho are scheduled for review and possible readjustment in the next 5 

years, and once a lease is readjusted, its provisions are in effect for 20 years. 

Over the last 16 years, federal agencies and mine operators have primarily 

focused on assessing the extent of selenium contamination in Idaho and have 

conducted only limited remediation actions. The agencies have conducted or 

overseen high-level assessments of contamination at 16 of the 18 mines where 

federal agencies are overseeing mining operations or cleanup activities, and at 

several of these mines the agencies and mine operators are now conducting 

more detailed assessments, known as remedial investigations and feasibility 

studies. However, no final cleanup actions have been chosen at any of the sites, 

and according to officials, most sites will require years of additional investigative 

work before final cleanup actions are selected. Federal agencies reported that 

they have spent about $19 million since 2001 to oversee these assessments and

undertake a limited number of remediation actions, roughly half of which has

been reimbursed by the mine operators under cleanup settlement agreements. 

Mine operators told GAO that they too have spent millions of dollars in additional 

assessment and remediation work but did not provide documentary evidence to 

support these claims. Agency officials told GAO that they have not developed 

estimates for the remaining cleanup costs because final cleanup remedies have 

not yet been identified. However, their informal estimates suggest that remaining 

cleanup costs may total hundreds of millions of dollars for the contamination from 

mining in Idaho. 

Federal agencies reported holding about $80 million in financial assurances for 

reclaiming phosphate mines in Idaho. Most of this amount—over $66 million—is 

associated with the two most recently approved phosphate mines. Agencies 

reported holding an additional $11.5 million in financial assurances to cover site 

assessment and limited cleanup activities under EPA’s Superfund program, but

some of these are in the form of corporate guarantees, which the agencies have 

determined are riskier than other types of financial assurances. No financial 

assurances have been established to cover future cleanup costs because 

remaining cleanup actions have not yet been identified, according to agency

officials.

View GAO-12-505. For more information, 

contact Anu K. Mittal at (202) 512-3841 or 

mittala@gao.gov. 
Page i GAO-12-505 Phosphate Mining on Federal Land

Letter 1 

Background 5

Agencies Have Provided More Rigorous Oversight of Phosphate 

Mining Since 1996, but Oversight Gaps Remain 19

Agencies and Mine Operators Have Focused on Assessing 

Contamination, Not Conducting Remediation, and Total Cleanup 

Costs Are Currently Unknown 27

Agencies Hold Millions of Dollars in Financial Assurances for Site 

Reclamation and Assessment, but Some Are in the Form of 

Potentially Risky Corporate Guarantees 41

Conclusions 45

Recommendations for Executive Action 46

Agency Comments and Our Evaluation 47

Appendix I Scope and Methodology 49

Appendix II Information on 18 Phosphate Mines Overseen by Federal Agencies in 

Southeastern Idaho, and CERCLA Cleanup Expenditures 53

Appendix III Comments from EPA 55

Appendix IV Comments from the Department of Agriculture 57

Appendix V Comments from the Department of the Interior 58

Appendix VI GAO Contact and Staff Acknowledgments 61

Tables

Table 1: Production Status and Presence of Selenium 

Contamination at Phosphate Mines in Southeastern Idaho 11

Contents
Page ii GAO-12-505 Phosphate Mining on Federal Land

Table 2: CERCLA Activities at 16 Contaminated Mines, by 

Assessment Process 30

Table 3: Acres Disturbed, CERCLA Lead Agency, and Surface Land 

Ownership at 18 Phosphate Mines in Southeastern Idaho 53

Table 4: Assessment and Cleanup Expenditures at the 16 

Contaminated Phosphate Mines in Southeastern Idaho, 

from Fiscal Years 2001 through 2011 54

Figures

Figure 1: Map of the Western Phosphate Field 7

Figure 2: An Active Phosphate Mine in Southeastern Idaho 8

Figure 3: An Inactive Phosphate Mine in Southeastern Idaho with a 

Cross-Valley Fill 9

Figure 4: How Phosphate Mining Overburden Can Release 

Selenium 10

Figure 5: The CERCLA Non-Time Critical Removal Assessment and 

Cleanup Process 16

Figure 6: The CERCLA Remedial Action Process 18

Figure 7: Total Agency Expenditures for Overseeing Phosphate 

Mine Assessment and Remediation, and Percentage and 

Amounts Reimbursed by Mine Operators, 2001-2011 37

Figure 8: Amount and Composition of BLM-Held Reclamation 

Financial Assurances 43
Page iii GAO-12-505 Phosphate Mining on Federal Land

Abbreviations

BIA Bureau of Indian Affairs 

BLM Bureau of Land Management 

CERCLA Comprehensive Environmental Response, Compensation, 

and Liability Act 

FWS Fish and Wildlife Service 

EIS Environmental impact statement 

EPA Environmental Protection Agency 

E.O. Executive Order 

IDEQ Idaho Department of Environmental Quality 

NEPA National Environmental Policy Act 

NPDES National Pollution Discharge Elimination System 

NPL National Priorities List 

TMDL Total Maximum Daily Load 

Corps U.S. Army Corps of Engineers

This is a work of the U.S. government and is not subject to copyright protection in the 

United States. The published product may be reproduced and distributed in its entirety 

without further permission from GAO. However, because this work may contain 

copyrighted images or other material, permission from the copyright holder may be 

necessary if you wish to reproduce this material separately.
Page 1 GAO-12-505 Phosphate Mining on Federal Land

United States Government Accountability Office 

Washington, DC 20548

May 4, 2012

The Honorable Barbara Boxer

Chairman

Committee on Environment and Public Works

United States Senate

The Honorable Edward J. Markey

Ranking Member

Committee on Natural Resources

House of Representatives

Since the early 1900s, phosphate rock—the only economically viable 

source of phosphorus used to make detergents, herbicides, and 

fertilizer—has been mined on predominantly federal land in southeastern 

Idaho, which is part of the Western Phosphate Field. The Western 

Phosphate Field comprises about 86 million acres of land in the Rocky 

Mountains from Utah and Colorado stretching north into Idaho, Montana, 

and Wyoming. However, in 1996 selenium—a potentially toxic chemical 

that leached out of the waste rock taken from phosphate mines—was 

discovered in southeastern Idaho, and since then an estimated 600 head 

of livestock (including horses, cattle, and sheep) have died after ingesting 

plants or surface water containing high concentrations of selenium.1

 As 

was common practice at these mines, to facilitate the removal of the 

phosphate rock, operators had used the waste rock, called overburden, 

as backfill and placed it in large external waste rock piles or in adjacent 

valleys.2

 

1

One phosphate mine currently operates on federal land in Utah, but the discovery of 

selenium contamination associated with phosphate operations was limited to mining 

locations in Idaho. As a result, this report focuses on agency and mine operator activities 

in Idaho.

The selenium present in the overburden has been transported 

by rain and snow run-off into groundwater or into streams and rivers 

inhabited by native fish, and accumulated in ground cover plants that 

have been consumed by livestock and other animals such as deer and 

2

For simplicity in this report, we use the term mine operators to refer to those individuals 

and companies that engage in activities related to phosphate mining, such as leasing 

federal land, obtaining regulatory approval for a phosphate mine, and operating a 

phosphate mine. 

 
 

Page 2 GAO-12-505 Phosphate Mining on Federal Land

elk. Much of the mining in this area has taken place on federal land,3 and 

federal agencies are currently overseeing mining operations or selenium 

cleanup at 18 phosphate mines, of which 5 are active and 13 inactive.4

The phosphate reserves being mined in southeast Idaho contain 

phosphate formations that are thicker and richer, on average, than in the 

other states and account for about 30 percent of total U.S. reserves, 

according to the U.S. Geological Survey. The Western Phosphate Field 

represents one of two commercially-viable phosphate reserves in the 

nation—the other is located primarily on private land in the southeastern 

United States. About 80 percent of the phosphate reserves in 

southeastern Idaho lie underneath land managed by the Department of 

Agriculture’s Forest Service as part of the 3-million acre Caribou-Targhee 

National Forest.

Of 

the 18 mines, 16 are contaminated with selenium and most are being 

assessed under the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA), also known as Superfund, for 

future cleanup.

Phosphate deposits on these lands are leased to mine operators by the 

Secretary of the Interior under the Mineral Leasing Act of 1920, which, 

with the regulations implementing the act, creates a system to lease 

these resources and charge a royalty for their extraction. Interior’s Bureau 

of Land Management (BLM) is responsible for issuing leases for solid 

mineral deposits, such as phosphate, on federal land. Under the 

provisions of the Mineral Leasing Act, BLM issues leases for 20 years 

and as long thereafter as the operator maintains compliance with lease 

terms and other conditions, but the leases are subject to readjustment 

every 20 years, at which time BLM has the opportunity to modify lease 

terms and conditions. For federal phosphate leases, BLM is responsible 

for approving mine operators’ plans of operation for proposed mines and 

is authorized to monitor mine operations during production and to ensure 

the mine operators complete reclamation once the operations have 

 

3

Federal land is used in this report to refer to federally-owned surface or subsurface land. 

4

There are additional, smaller phosphate mines in southeastern Idaho, none of which are 

currently active, where federal agencies do not have a role in overseeing mine operations 

or cleanup and that are considered a lower priority for cleanup. These mines are not 

included in our review.
 

Page 3 GAO-12-505 Phosphate Mining on Federal Land

ceased.5 In overseeing phosphate mining, BLM works with other federal 

agencies, including the Forest Service; Interior’s Bureau of Indian Affairs 

(BIA) and Fish and Wildlife Service (FWS); the Environmental Protection 

Agency (EPA); and the U.S. Army Corps of Engineers (Corps). BLM also 

works with state agencies, including the Idaho Department of 

Environmental Quality (IDEQ). This involves coordinating inspections, 

enforcement, and mine-plan reviews and giving consideration to federal 

laws, such as the National Environmental Policy Act (NEPA),6

Endangered Species Act,7 and Clean Water Act,8

BLM requires mine operators to provide financial assurances to ensure 

that they meet the obligations specified in their leases and permits, such 

as paying royalties and complying with requirements for mine operations 

and reclamation.

as well as land-use 

plans that BLM and the Forest Service have developed.

9

 

5

Reclamation generally includes restoring the land to a stable condition that can support 

other uses through actions such as recontouring hillsides, removing roads and structures, 

and planting vegetation.

If the mine operator fails, for example, to reclaim a 

mine site after production has ceased or to pay federal royalties, BLM can 

demand payment from the financial assurance to cover the obligation.

Other agencies may also hold financial assurances for activities 

associated with mining. For example, the Forest Service can require that 

mine operators post financial assurances when obtaining permits to 

construct roads through a national forest to access a leased site. 

Additionally, federal agencies, including EPA, can obtain financial 

assurances from mine operators to help ensure performance in 

6

42 U.S.C. §§ 4321-4347 (2006). NEPA requires federal agencies to evaluate the likely 

environmental effects of a proposed project using an environmental assessment or, if the 

project would likely significantly affect the environment, a more detailed environmental 

impact statement evaluating the proposed project and alternatives.

7

16 U.S.C. §§ 1531-1544 (2006).

8

33 U.S.C. §1251-1387 (2006).

9

These financial assurances, also referred to as bonds, can be surety or personal bonds. 

A surety bond is a third-party guarantee that an operator purchases from a private 

insurance company approved by the Department of the Treasury. The operator must pay 

a premium to the surety company to maintain the bond. These premiums can vary 

depending on various factors, including the amount of the bond and the assets and 

financial resources of the operator, among other factors. Personal bonds may be in the 

form of a check or negotiable U.S. Treasury bonds. 
 

Page 4 GAO-12-505 Phosphate Mining on Federal Land

accordance with settlement agreements negotiated under CERCLA for 

assessing and cleaning up contamination from mines.10

You asked us to review issues surrounding the oversight and cleanup of 

phosphate mines on federal lands. This report examines the (1) extent to 

which federal agencies’ oversight of phosphate operations has changed 

since the discovery of selenium contamination in Idaho in 1996, and 

whether those changes appear sufficient to help the agencies prevent 

future contamination; (2) actions that federal agencies and mine 

operators have taken to assess and remediate contamination from 

phosphate mining on federal land, amounts they have spent on these 

actions, and estimated remaining costs; and (3) types and amounts of 

financial assurances in place for phosphate mining operations and the 

extent to which these assurances are likely to cover future cleanup costs.

To address the first objective, we reviewed relevant agency documents 

and reports created both before and after 1996. These include BLM’s and 

the Forest Service’s land-use plans; BLM records of decision for new 

mine plans and associated NEPA documents; and BLM lease and bond 

reports. We interviewed officials with BIA, BLM, FWS, and the Office of 

Natural Resources Revenue, within the Department of the Interior; the 

Forest Service; EPA; the Corps; and IDEQ. We also interviewed 

representatives of the three phosphate mine operators who operate in 

Idaho and visited the phosphate mines operating as of June 2011. To 

address the second objective, we reviewed BLM, Forest Service, EPA, 

and IDEQ documents and reports on the status of assessment and 

cleanup efforts, and the related settlement agreements with the mine 

operators. We obtained data on agency expenditures from Interior, BLM, 

FWS, the Forest Service, EPA, and IDEQ, including the source of the 

funds, and data on the amount of expenditures reimbursed by mine 

operators under the CERCLA settlement agreements. To evaluate the 

reliability of these data and determine their limitations, we reviewed the 

agencies’ internal controls of their data systems and interviewed agency 

officials and determined that the expenditure data were sufficiently 

reliable for our purposes. To address the third objective, we obtained 

financial assurance data from BLM, BIA, the Forest Service, and EPA, 

 

10EPA and other federal agencies may accept financial assurances in the form of 

corporate guarantees, which are promises by mine operators, sometimes accompanied by

a test of financial stability, to pay remediation costs, but they do not require that funds be 

set aside to pay such costs. 
 

Page 5 GAO-12-505 Phosphate Mining on Federal Land

including data on financial assurances held by Idaho state agencies for 

operations on federal land. To evaluate the reliability of the financial 

assurance data, we interviewed agency officials, examined agency 

records, and cross-checked the data with the financial assurance 

amounts listed in agency databases and CERCLA settlement 

agreements, and determined that these data were sufficiently reliable for 

our purposes. To obtain additional perspectives on the issue of 

phosphate mining, we also interviewed representatives from regionallyfocused environmental advocacy groups, including the Idaho 

Conservation League and the Greater Yellowstone Coalition. Appendix I 

describes our scope and methodology in more detail.

We focused our report on agencies’ and mine operators’ activities in 

Idaho for two primary reasons. First, phosphate-mining operations on 

federal land are generally limited to the Western Phosphate Field, and all 

but one of these operations are located in Idaho. Second, the occurrence 

of selenium contamination resulting from phosphate mining operations on 

federal lands is currently limited to Idaho; similar levels of contamination 

have not been discovered in the neighboring state where a portion of the 

Western Phosphate Field is mined.

We conducted this performance audit from May 2011 through May 2012 

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.

Phosphate is used in the manufacture of a variety of products, including 

toothpaste, soft drinks, and dishwashing and laundry detergents. Over 95 

percent of the phosphate produced in the United States, however, is used 

in the manufacture of fertilizers and animal feed supplements. This section 

provides information on phosphate mining in Idaho, the phosphate-leasing 

process, the mine plan approval process, the Clean Water Act permitting 

process, and the CERCLA assessment and remediation process.

Background
 

Page 6 GAO-12-505 Phosphate Mining on Federal Land

Roughly 12 percent of the phosphate currently produced in the United 

States comes from the five active mines located in southeastern Idaho on 

lands managed by BLM, the Forest Service, the State of Idaho, and 

private landowners.11

 

11The remaining phosphate produced in the United States comes predominantly from 

phosphate mines located on mostly private land in the southeastern United States, as well 

as from one active mine on federal land in Utah. As noted earlier, these mines are not 

included in our study.

In addition, phosphate mining occurred historically 

on nearby lands in Idaho leased by the Shoshone-Bannock Tribes on the 

Fort Hall Indian Reservation. The entire area of southeastern Idaho is at 

the center of the Western Phosphate Field that extends into six western 

states. Figure 1 shows the location of the field.

Phosphate Mining in Idaho
 

Page 7 GAO-12-505 Phosphate Mining on Federal Land

Figure 1: Map of the Western Phosphate Field

Three mine operators currently mine phosphate at the five active mines in 

southeastern Idaho. At each of these mines, operators use drilling and 

blasting to expose the layers of phosphate ore so that it can be excavated 
 

Page 8 GAO-12-505 Phosphate Mining on Federal Land

and hauled by truck, train, or pipeline to a facility for processing.12

Figure 2: An Active Phosphate Mine in Southeastern Idaho

Two of 

these operators process the phosphate ore into fertilizer products, while 

the third produces elemental phosphorus for use in herbicides. To access 

the phosphate ore, the mine operators must also remove the 

overburden—that is, the layers of rock that overlay, or in some cases are 

layered between, the phosphate ore. The overburden was historically 

placed in external waste dumps or used as backfill in mine pits or in 

nearby valleys, creating what are known as cross-valley fills. Figure 2 

shows an active phosphate mine in southeastern Idaho, and figure 3 

shows an inactive phosphate mine with a cross-valley fill.

 

12To transfer phosphate via pipeline, the ore must first be crushed and mixed with water to 

form a thick solution called slurry that can be pumped through the pipeline. The three 

operators also operate separate mineral processing facilities, each of which poses 

additional environmental issues. However, these processing facilities are not addressed in 

this report. 
 

Page 9 GAO-12-505 Phosphate Mining on Federal Land

Figure 3: An Inactive Phosphate Mine in Southeastern Idaho with a Cross-Valley Fill

After horses grazing downstream from a cross-valley fill on federal land 

became sick and had to be euthanized in 1996, it was discovered that 

much of the overburden at phosphate mines in Idaho contains high 

concentrations of selenium—a naturally occurring element that in trace 

amounts is essential to the normal functioning of cells in animals but that 

can be poisonous in large concentrations. The selenium present in the 

overburden can be transported by rain and snow into the groundwater or 

into rivers and streams, or picked up by the roots of plants growing on the 

waste piles. The uptake of selenium contamination in vegetation or the 

frequent ingestion of selenium by animals can cause it to build up over 

time in a process known as bioaccumulation. BLM officials estimate that 

over 600 head of livestock have died from selenium poisoning since 1996 

in the area—including a 2005 incident involving the deaths of over 30 

sheep near a mine on federal land. Adverse effects due to selenium 

contamination have also been documented in birds and aquatic animals 

such as fish and invertebrates. Figure 4 shows the phosphate mining 

process and how it can result in the release of selenium.
 

Page 10 GAO-12-505 Phosphate Mining on Federal Land

Figure 4: How Phosphate Mining Overburden Can Release Selenium

In southeastern Idaho, selenium contamination has been measured at 3 

of the 5 active mines, and at all 13 of the inactive mines. Table 1 shows 

the 18 phosphate mines in southeastern Idaho and their production 

status, and the locations where selenium contamination and livestock 

deaths have occurred. See appendix II for more detailed information on 

the acres and surface land ownership of these mines.
 

Page 11 GAO-12-505 Phosphate Mining on Federal Land

Table 1: Production Status and Presence of Selenium Contamination at Phosphate 

Mines in Southeastern Idaho

Mine name Active Inactive

Selenium 

contamination 

detected

Livestock deaths 

or illnesses have 

occurred

Ballard • • Blackfoot Bridge • Champ • • Conda • • • Diamond Gulch • • Dry Valley • • Dry Valley, South Extension • Enoch Valley • • Gay • • Georgetown Canyon • • • Henry • • Mountain Fuel • • North Maybe • • • Rasmussen Ridge • • Smoky Canyon • • South Maybe Canyon • • • South Rasmussen • • Wooley Valley • • • Total 5 13 16 5 

Source: BLM.

BLM issues phosphate leases under the Mineral Leasing Act of 1920.13

 

13A phosphate lease gives the mine operator the exclusive right to phosphate resources 

on the leased land, but not to the lands themselves. Use of the land is subject to the terms 

and conditions of the lease.

BLM is responsible for leasing on federal lands, but it must consult with 

the agency having jurisdiction over the surface, such as the Forest 

Service, with respect to surface protection and reclamation requirements. 

BLM will decline to issue a lease for phosphate mining if it is inconsistent 

with an applicable land-use plan. According to BLM officials, most of the 

The Phosphate-Leasing 

Process
 

Page 12 GAO-12-505 Phosphate Mining on Federal Land

86 phosphate leases in southeast Idaho were issued over 50 years ago,14

and BLM last held a competitive lease sale in 1991. However, additional 

lands have been leased through lease modifications—a non-competitive 

process whereby a mine operator requests that BLM expand an existing 

lease to include lands adjacent to an active or proposed mine. Leases are 

for indefinite terms; however, BLM may make reasonable adjustments to 

the lease conditions once every 20 years. Lessees have the right to 

challenge the terms and conditions proposed by BLM through 

readjustment, including a right of appeal to the Interior Board of Land 

Appeals.15 In addition to obtaining a lease from BLM, mine operators may 

need to obtain a special-use permit to use National Forest System land 

for off-lease activities, such as the construction of access roads. Mine 

operators must pay a royalty of at least 5 percent of the gross value of 

phosphate rock and associated minerals produced, as well as annual rent 

of up to $1.00 per acre. For leases that have not been in production for 6 

or more years, mine operators pay an annual royalty of $3 per acre that 

includes rent. According to officials with Interior’s Office of Natural 

Resources Revenue, the federal government collected roughly $7 million 

in royalties and rents from phosphate mine operations on federal land in 

fiscal year 2010.

Before conducting any operations under a lease, an operator must submit 

to BLM a mine plan detailing the operations to be conducted. The mine 

plan outlines basic mine operations and mine-specific production 

measurement methods for calculating royalties. The mine plan also is to 

include information on the environmental aspects of the proposed mine, 

such as pollutants that may enter waters, measures to be taken to 

prevent air and water pollution and damage to fish or wildlife, and a 

reclamation plan. The reclamation plan details the steps the operator will 

take to restore the land to its previous condition, including action such as 

recontouring hillsides, removing roads and structures, and planting 

vegetation. BLM is required to consult with other federal agencies, such 

as those having jurisdiction over surface land, prior to approval and may 

require modifications to an approved plan if conditions warrant. For 

 

14Some mines are associated with multiple leases and some leases have no mining 

activity. As a result, the number of leases in the area—86—is greater than the number of 

mines where federal agencies are overseeing mining operations or cleanup activities—18.

1543 C.F.R. § 3511.26 (2011).

The Mine Plan Approval 

Process
 

Page 13 GAO-12-505 Phosphate Mining on Federal Land

example, BLM may seek to modify a mine plan if selenium is discovered 

at the site after operations begin. After the approval of a mine plan, BLM 

sets a financial assurance amount for the mining operation. Financial 

assurances may cover individual leases or all leases for a single lessee in 

a state or nationwide. The minimum amount for an operator is $5,000 for 

individual leases, $25,000 for all of the operator’s leases statewide, or 

$75,000 for all of the operator’s leases nationwide. BLM may enter into 

agreements with states whereby any financial assurance provided to a 

state would also satisfy BLM’s requirements. BLM will release a financial 

assurance when it determines that the operator has (1) paid all royalties, 

rents, penalties, and assessments; (2) satisfied all lease obligations; (3) 

reclaimed the site; and (4) taken effective measures to ensure that the 

mineral prospecting or development activities will not adversely affect 

surface or subsurface resources. The Forest Service may also require 

operators to post financial assurances for activities associated with 

special-use permits.

In association with the mine approval processes, BLM—in cooperation 

with the Forest Service if National Forest System land is involved—must 

evaluate the proposed mine under NEPA. NEPA requires federal 

agencies to evaluate the likely environmental effects of a proposed 

project using an environmental assessment or, if the project is likely to 

significantly affect the environment, a more detailed environmental impact 

statement (EIS). EPA officials told us that EPA is required to review, and 

issue written comments on, each draft EIS, which BLM may accept or 

reject.16 As part of the NEPA process, and also to comply with the 

Endangered Species Act, BLM and the Forest Service may also 

undertake a biological assessment to identify endangered or threatened 

species and critical habitat that may be affected by mine operations.17

 

16EPA comments on each draft EIS pursuant to section 309 of the Clean Air Act.

If 

BLM and the Forest Service determine that a mine may affect an 

endangered or threatened species, FWS may issue a biological opinion 

as to whether the activity is likely to jeopardize the continued existence of 

the species. If FWS finds that the activity will not jeopardize the species, 

17The purpose of the Endangered Species Act is to conserve threatened and endangered 

species and the ecosystems upon which they depend. The act includes provisions for 

listing species that need protection, designating habitat deemed critical to a listed species’ 

survival, developing recovery plans, and protecting listed species against certain harms 

caused by federal and nonfederal actions. Section 7(c) of the act states that agencies may 

conduct a biological assessment as part of their compliance with NEPA.
 

Page 14 GAO-12-505 Phosphate Mining on Federal Land

its opinion will still list measures that can be taken to minimize impacts on 

the species. The outcomes of these analyses may affect BLM’s final 

decision on an operator’s mining plan.

Mine operators may also need to work with other agencies to obtain 

additional permits or certifications before they can begin mining 

operations. For example, operators must obtain a permit under section 

404 of the Clean Water Act from the Corps for the discharge of dredged 

or fill material into waters of the United States at specified disposal sites. 

Such discharges can include disposal of mine overburden. In addition, 

operators must obtain a permit under Section 402 of the Clean Water Act 

from EPA for discharges of storm water runoff that is contaminated by 

contact with certain materials such as overburden.

18

In addition, under section 303(d) of the Clean Water Act, states must 

establish a Total Maximum Daily Load (TMDL) for any water body that 

cannot meet applicable water quality standards even after technologybased controls are applied to sources of water pollution. The TMDL 

represents the total amount of a pollutant that can be discharged into a 

water body each day without exceeding the water quality standard for that 

water body. The state of Idaho has identified selenium as a substance 

impairing water quality in some of its waters, but it has not yet established 

any TMDLs for selenium.

Under such permits, 

operators may need to implement technology-based controls to protect 

waters, but operators may also be required to implement other controls 

based on the quality of the water into which they are discharging.

19 Section 401 of the Clean Water Act also 

provides states with the opportunity to object to the issuance of federal 

permits and licenses, including section 404 or 402 permits that may affect

water quality in the state. Accordingly, an operator seeking a federal 

permit for a project that may affect water quality in Idaho must also seek 

section 401 certification for the proposal from IDEQ.

 

18 National Pollution Discharge Elimination System (NPDES) permits are generally issued 

by states under EPA-approved programs, but Idaho does not have a program for issuing 

such permits; therefore, EPA issues these permits in Idaho.

19Section 303(d) of the Clean Water Act does not provide any specific deadline for the 

development of TMDLs.

The Clean Water Act Permitting 

Process
 

Page 15 GAO-12-505 Phosphate Mining on Federal Land

Environmental contamination discovered at a mine may require 

remediation under CERCLA, the federal government’s principal program to 

respond to releases or substantial threats of releases of hazardous 

substances, pollutants, or contaminants which may present an imminent 

and substantial danger to the public health or welfare. Under CERCLA, the 

federal government has the authority to compel parties responsible for 

contaminating sites to clean them up, or to conduct cleanups itself and then 

seek reimbursement from the responsible parties. The National Priorities 

List (NPL) is EPA’s list of the nation’s most contaminated sites, and 

cleanups of these sites are typically expensive and lengthy. For NPL sites 

on Forest Service or BLM land, the land management agencies and EPA 

work together under interagency agreements to implement response 

actions. For non-NPL sites on Forest Service or BLM land, the land 

management agencies take the lead on implementing CERCLA response 

actions, except for emergencies which have been delegated exclusively to 

EPA.20

In enforcing CERCLA, federal agencies generally attempt to reach an 

agreement—known as a settlement agreement—with responsible parties 

(such as mine operators or other entities) to perform and pay for site 

cleanups once contamination has been discovered. Under these 

agreements, responsible parties may be required to post a financial 

assurance to ensure the performance of agreed-upon cleanup actions.

However, there are currently no regulations that require mine operators to 

provide such financial assurances; agencies and responsible parties 

negotiate these terms in each settlement.21

 

20Executive Order (E.O.) 12580, Superfund Implementation, was issued in 1987 and 

delegates to EPA certain regulatory authorities that the statute assigns to the President, 

while delegating to other federal agencies, including Interior and the Department of 

Agriculture for the Forest Service, authority for non-NPL remedial actions and removal 

actions other than emergencies on their lands, subject to section 120 and other provisions 

of CERCLA. See E.O. No. 12580, 52 Fed. Reg. 2923 (Jan. 23, 1987). 

Under CERCLA, EPA is 

required to issue regulations requiring certain businesses that handle 

hazardous substances to demonstrate their ability to pay for 

environmental cleanup costs, but the agency has not yet issued such 

regulations. However, the agency expects to propose such a rule for 

certain types of mining, which could include phosphate mining, in 2013, 

according to EPA officials.

21EPA has model settlement agreements to help guide negotiations.

The CERCLA Assessment 

and Remediation Process
 

Page 16 GAO-12-505 Phosphate Mining on Federal Land

After contamination has been identified, the agency taking the lead on the 

cleanup initiates a process to investigate the extent of the contamination, 

decide on the actions that will be taken to address contamination, and 

implement those actions. The CERCLA program has two basic types of 

cleanup: (1) cleanups under the removal process, which generally 

address short-term threats, and (2) cleanups under the remedial action 

process, which are generally longer-term cleanup actions.

• Removal actions include (1) time-critical removals for threats requiring 

action within 6 months, and (2) non-time-critical removals for threats 

where action can be delayed to account for a 6-month planning 

period. As shown in figure 5, the non-time-critical removal process 

involves three primary phases, (1) a site evaluation, including site 

investigation and engineering evaluation/cost analysis, to characterize 

the site and identify and analyze removal alternatives; (2) selection 

and implementation of the removal action; and (3) monitoring and 

maintenance.

Figure 5: The CERCLA Non-Time Critical Removal Assessment and Cleanup 

Process

• The remedial action process begins with a remedial investigation and 

a feasibility study to characterize site conditions, assess the risks to 

human health and the environment, and to evaluate various options to 

address the problems identified, among other things. These findings 

and decisions are documented in a record of decision. Implementation 

of the remedial action is divided into two parts: (1) remedial design, a 

further evaluation of the best way to implement the chosen remedy; 

and (2) remedial action, the implementation of the remedy selected. 

When physical construction of all remedial actions is complete and 
 

Page 17 GAO-12-505 Phosphate Mining on Federal Land

other criteria are met, the lead agency deems the site to be 

construction complete. Most sites then enter an operation and 

maintenance phase, wherein the responsible party or the state 

maintains the remedy, while the lead agency conducts periodic 

reviews to ensure that the remedy continues to protect human health 

and the environment. For example, at a mine site with piles of 

overburden contaminated with selenium, the remedial action could 

consist of building a cap over the contaminated soil, while the 

operation and maintenance phase would consist of monitoring and 

maintaining the cap.22

 

22Waste pile caps and covers can be made of synthetic or natural materials, such as 

compacted clay. They work to reduce the migration of contamination by preventing rain 

and snow run-off from transporting contamination into ground and surface water.

The remedial action process is a more 

transparent and comprehensive process with more distinct steps than 

the removal action process. For example, CERCLA and its 

implementing regulations provide more opportunities for the public to 

participate in the remedial action process, including participation in 

site-related decisions, than are required in the removal action 

process, which may be limited to a single comment period. The 

remedial investigation/feasibility study process is subject to moredetailed data requirements than the site evaluation process for a 

removal action, and under section 121 of CERCLA, remedial actions 

generally require completed sites to achieve certain cleanup 

standards, which is not necessarily the case for removal actions. 

Finally, the remedial action process favors permanent remedies over 

short-term abatement. Figure 6 shows the remedial action process.
 

Page 18 GAO-12-505 Phosphate Mining on Federal Land

Figure 6: The CERCLA Remedial Action Process

a

Postconstruction completion includes activities such as operation and maintenance, long-term 

response actions, and 5-year reviews, which ensure that Superfund cleanup actions provide for the 

long-term protection of human health and the environment. 

Responsibility for selenium contamination in southeastern Idaho has been 

the subject of a recent CERCLA lawsuit. Under CERCLA, a party can be 

held liable for cleanup costs as an owner or operator of a facility where 

there was a release of hazardous substances or if the party arranged for 

disposal of hazardous substances. In 2009, a phosphate mine operator 

sued to compel the federal government to share the costs of cleaning up 

contamination under CERCLA at four mines, asserting that the 

government was an owner, arranger, and operator of the waste disposal 

sites at those mines. In the first step of the litigation, the court held in 

2011 that the government was an owner, arranger, and operator.23

 

23Nu-West Mining, Inc. v. United States, 768 F. Supp. 2d 1082 (D. Idaho 2011).

Specifically, the court found that the government owned the mine site, 

owned the middle waste shale that is the source of the hazardous 

substance involved (selenium), had the authority to control the disposal of 

that substance, and exercised some actual control over the disposal of 

that substance. Furthermore, the government managed the design and 

location of waste dumps at the mines and regularly inspected the mines 

to ensure compliance with the mining plans and waste disposal 
 

Page 19 GAO-12-505 Phosphate Mining on Federal Land

guidelines. The court did not determine the amount of cleanup costs the 

government owes, deferring that to a subsequent phase of the litigation.

The parties have since agreed to settle the issues remaining in the 

case.24

Federal agencies have taken steps to strengthen their oversight of 

phosphate mining on federal land since selenium contamination was 

discovered in 1996 by requiring more detailed environmental analysis and 

reclamation plans, requiring financial assurances that provide more 

coverage, hiring additional staff, and revising land-use plans. 

Nevertheless, oversight gaps remain that limit the agencies’ ability to 

effectively address contamination from phosphate mining operations. 

These gaps include inadequate documentation of BLM’s financial 

assurance practices, inconsistent coordination on financial assurances, 

an ineffective process for resolving agency disagreements on lease terms 

and conditions, and insufficient mechanisms for overseeing activities 

being conducted by third party contractors.

In an effort to reduce the likelihood that new and ongoing mines will result 

in additional sources of selenium contamination and improve the 

management of ongoing CERCLA cleanups, BLM and the Forest Service 

have taken the following steps to strengthen their oversight of phosphate 

mining operations.

• BLM requires a more detailed environmental analysis for approving 

mine plans. According to BLM officials, in 1998 the agency began to 

prepare a full site-specific EIS when evaluating new mine plans, 

instead of relying on a 1977 areawide programmatic EIS and 

conducting site-specific environmental assessments that were more 

limited in scope, as had been done previously. Under the new EIS, 

officials told us, they conduct enhanced environmental testing and 

analysis to understand the potential sources of selenium at proposed 

mine sites, investigate how proposed mines would affect surface 

water and groundwater, and evaluate engineering models for options 

to prevent or mitigate the contamination.

 

24The terms of the settlement were not available as of this report’s issuance.

Agencies Have 

Provided More 

Rigorous Oversight of 

Phosphate Mining 

Since 1996, but 

Oversight Gaps 

Remain

Agencies Have 

Strengthened Their 

Oversight to Address 

Selenium Contamination
 

Page 20 GAO-12-505 Phosphate Mining on Federal Land

• BLM requires more comprehensive reclamation plans. BLM officials 

told us that the agency now requires mine operators that propose new 

mine sites to develop more comprehensive reclamation plans than 

operators did previously. For example, mine operators are now 

generally required to agree to backfill open mine pits and not 

construct cross-valley fills; separate selenium-contaminated waste 

from other waste; engineer systems of natural or synthetic caps and 

covers for both reducing the infiltration of surface water into waste 

piles that can contribute to groundwater contamination and preventing 

the uptake of selenium by the roots of vegetation planted for 

reclamation; and select plants for revegetating mine sites that 

minimize selenium uptake and reduce the risk of ingestion by

livestock and wildlife. In addition, the new mine plans provide for 

enhanced inspection of the mine operations in order to, among other 

things, monitor groundwater to detect selenium contamination early 

and oversee the construction of waste pile caps and covers. Since the 

state of Idaho decided to list parts of the Blackfoot River as impaired 

for selenium under section 303(d) of the Clean Water Act in 2002, 

BLM has also been requiring mine operators to demonstrate through 

their mine and reclamation plans that the mines will not add any 

measurable selenium contamination to the river and its tributaries.

• BLM requires full-cost financial assurances for new mines. BLM 

officials told us that the agency decided in 2001 to set financial 

assurances for new mining operations using a formula based on the 

estimated full cost of reclaiming the site—meaning that, if the mine 

operator defaults on its reclamation obligation, the financial assurance 

would be adequate for BLM to hire contractors and incur oversight 

and overhead costs to perform the work—plus 3 months of estimated 

royalties. In the past, BLM officials told us, as agreed with the state of 

Idaho, BLM generally set financial assurance amounts at not more 

than $2,500 per acre of surface disturbance, regardless of the 

potential cost of reclamation. The financial assurances for the new 

mines are substantially higher than those set under the per-acre 

calculation. For example, one mine approved in 2011 was required to 

provide a financial assurance valued at nearly $22 million; based on 

general past practices, that financial assurance would have been set 

at about $1.7 million, according to our analysis. The adequacy of 

these larger financial assurances for reclamation has not yet been 

tested, however, because all of the mines at which they have been 

required are still active. BLM officials told us that they generally have 

not increased or decreased financial assurance amounts for inactive 

phosphate mine operations because most of those mines will require 

further remediation for selenium contamination under CERCLA, and 
 

Page 21 GAO-12-505 Phosphate Mining on Federal Land

the costs to reclaim and remediate those sites—which would form the 

basis for any adjustment in the financial assurance amounts—have 

not yet been estimated.

• BLM and the Forest Service have made changes to readjusted 

leases, and BLM has denied lease relinquishments. To help ensure 

that phosphate mine operators are liable for any environmental 

damage they may cause, BLM and the Forest Service jointly devised 

a lease stipulation that has been included in every lease readjustment 

since 2002, covering a total of 63 leases. Under the new stipulation, 

the mine operator agrees to pay for certain environmental damage it 

causes and, when requesting that a lease be relinquished,25

• BLM and the Forest Service have taken some steps to supplement 

staff resources. Since selenium contamination was discovered in 

1996, BLM and the Forest Service have combined their mine 

oversight field staff in southeastern Idaho into a minerals branch 

under an interagency initiative known as Service First. According to 

to 

conduct an environmental site assessment of the mine site to identify 

any possible contamination. BLM also made other changes, such as 

the addition of a notification to phosphate lessees that details the 

information that should be included in a proposed mine plan, and 

language stating that lessees will be required to comply with 

CERCLA, as well as other environmental laws. BLM officials told us 

they intend to use the environmental site assessment in evaluating 

whether to allow the operator to relinquish the lease. Until the lease is 

relinquished, BLM can maintain the financial assurance associated 

with the lease, and any terms and conditions of the lease including 

reclamation obligations remain in effect. BLM officials told us that their 

practice has been to deny lease relinquishments if there are any 

indications that further CERCLA cleanup may be necessary to 

address selenium contamination, and that they last relinquished a 

phosphate lease in 1997 at a site where no phosphate production had 

occurred. No phosphate mine operators requested a lease 

relinquishment from 1993 through 2003, and since 2003, BLM has not 

approved any of the 8 requests it has received for lease 

relinquishment, according to BLM officials.

 

25When a lease is relinquished, the mine operator ceases operations and the terms and 

conditions of the lease are no longer in effect. A mine operator may relinquish a lease If 

BLM agrees that relinquishment is in the public interest and the mine operator pays

accrued rentals and royalties and performs reclamation required by BLM. 
 

Page 22 GAO-12-505 Phosphate Mining on Federal Land

BLM officials, this initiative has allowed the agencies to eliminate 

redundant mine oversight, increase efficiency, and accomplish more 

work. BLM and the Forest Service have also hired additional staff to 

help manage the increased workload associated with overseeing new 

and ongoing mines. For example, the Forest Service has, among 

other things, created a new position to oversee its selenium 

remediation efforts. This position is currently held by a former EPA 

employee with 15 years of experience managing CERCLA cleanups. 

In addition, BLM has arranged to have mine operators pay for thirdparty contractors to support BLM staff in certain aspects of mine 

oversight. For example, mine operators have paid contractors to 

prepare EISs,26 and BLM has directed two mine operators to enter 

into and pay for contracts with third parties to provide monitoring and 

other services associated with constructing and implementing cover 

systems for waste rock. BLM has also asked mine operators to 

reimburse it directly to fund two BLM positions to conduct mine 

oversight.27

• BLM and the Forest Service have revised their land-use plans to 

address contamination. BLM began the process of revising its landuse plan for the area covering the Idaho portion of the Western 

Phosphate Field in 2003, and in 2010 issued a final EIS for the draft 

plan that provides direction for managing phosphate activities, 

Despite these efforts, BLM officials in Idaho told us that 

they still face challenges in meeting their workload demands, 

particularly because changes in the oversight process since 1996 

have required additional time and effort to implement. For example, 

BLM officials told us that it typically takes 5 years to complete an EIS 

for a proposed new mine, and this process can incur contractor costs 

of over $2 million. In contrast, BLM could complete the environmental 

assessment process it used previously in 2 years using agency 

resources.

 

26Even if a contractor prepares an EIS, BLM officials are still responsible for the scope 

and content of the statement, furnishing guidance to the contractor, participating in 

preparation, and independently evaluating the statement prior to its approval.

27The positions in question were identified by BLM officials as positions that support EIS 

project management. Under federal law, BLM is authorized to retain fees for processing, 

recording, or documenting authorizations to use public lands or resources. 43 U.S.C. § 

1734a (2006). Also, under BLM regulations, the agency may set processing fees on a 

case-by-case basis for a plan of operations that requires the preparation of an EIS. 43 

C.F.R. § 3800.5 (2011). We did not analyze whether BLM’s acceptance of industry 

funding for salaries in this instance was consistent with these or other authorities.
 

Page 23 GAO-12-505 Phosphate Mining on Federal Land

preventing contamination, and setting standards for contaminants. 

BLM officials told us that these changes are intended to help ensure 

that phosphate mine operators provide adequate financial assurances 

and that operators adequately reclaim mine sites, including preventing 

selenium contamination. BLM officials told us that they expect to 

approve the record of decision for the plan in 2012. Similarly, the 

Forest Service issued a revised forest plan for the Caribou National 

Forest in 2003 that set new standards and guidelines for phosphate 

mine development on forest lands to help detect and prevent 

selenium contamination. For example, the revised plan contains new 

standards that, among other things, stipulate that vegetation used in 

reclamation must be monitored for bioaccumulation of hazardous 

substances, such as selenium, and that financial assurances should 

be based on the estimated full cost of reclamation and in place before 

the mine operator disturbs the land surface.28

We identified four gaps in the agencies’ oversight efforts that could limit 

their ability to address ongoing problems with selenium contamination. 

First, although BLM has strengthened its oversight of new phosphate 

mines by requiring that operators provide financial assurances to cover 

the estimated full cost of reclamation, BLM has not documented this 

practice in its official agency policy. In a 2002 internal evaluation of 

financial assurance policies, BLM recognized that its practices for 

phosphate mines in Idaho are not reflected in current policy and 

determined that the agency should revise the manual associated with this 

program to recognize these practices.29 However, BLM officials told us 

that the agency has not yet done so. As noted in the Standards for 

Internal Control in the Federal Government, agency policies should be 

clearly documented and readily available for examination to ensure 

effective program management.30

 

28U.S. Department of Agriculture, Revised Forest Plan of the Caribou National Forest 

(Idaho Falls, ID: February 2003).

Without documenting its bonding 

practices in official agency policy, BLM cannot be assured that the current 

29Bureau of Land Management, Fiscal Year 2002 Program Evaluation Report—Bonding in 

the Non-Energy Leasable Minerals Program, IM 2003-033 (Washington, D.C.: November 

2002).

30GAO, Standards for Internal Control in the Federal Government, GAO/AIMD-00-21.3.1

(Washington, D.C.: Nov. 1, 1999).

Oversight Gaps Remain in 

Agency Policy and 

Coordination
 

Page 24 GAO-12-505 Phosphate Mining on Federal Land

full-cost financial assurance practices for phosphate mines in Idaho will 

be implemented completely and consistently.

Second, according to Forest Service officials, since at least 2006, BLM 

has not consistently coordinated with the Forest Service about the 

financial assurances for phosphate mining operations on National Forest 

System land. BLM must consult with the agency that administers the 

surface land prior to issuing a lease and, generally, regarding the surface 

protection and reclamation requirements of the lease.31

Third, BLM and the Forest Service have not in all cases been able to reach 

agreement on lease terms and conditions to include when issuing new 

leases and readjusting existing leases. BLM and the Forest Service have 

Forest Service 

officials told us that they are not consistently consulted about the 

appropriate level of financial assurances nor made aware of the decisions 

regarding financial assurances being made by BLM. BLM and the Forest 

Service have an interagency agreement that includes procedures for 

coordinating on issues involving licenses, permits, and leases, but this 

agreement does not expressly discuss issues related to financial 

assurances. Similarly, BLM and the Forest Service have drafted an 

agreement covering the sharing of staff and resources under their Service 

First initiative in Idaho, but this draft agreement does not provide details 

on the steps the agencies should take to coordinate on financial 

assurances. The resulting inconsistency in coordination is of particular 

concern to Forest Service officials, because they consider financial 

assurance amounts, particularly for existing mines, to be potentially 

inadequate to cover the estimated reclamation costs. These officials told 

us that additional communication and coordination with BLM when 

establishing and reviewing the adequacy of financial assurances would 

allow them to offer relevant information that might help BLM officials in 

setting bond amounts. They also noted that additional coordination would 

help ensure that the mine operator is acting in accordance with the 

portions of the forest plan specifying that financial assurances should be 

adequate to cover the full cost of reclamation and should be in place 

before surface disturbance occurs. BLM officials told us that while they do 

coordinate with the Forest Service, it tends to be on a case-by-case basis 

and that in some instances they are limited in their ability to coordinate by 

insufficient staff.

 

3143 C.F.R. § 3503.20(a); 43 C.F.R. § 3590.2(h).
 

Page 25 GAO-12-505 Phosphate Mining on Federal Land

an interagency agreement that states the agencies will coordinate at the 

local level on issues involving lease terms and conditions, and at the 

headquarters level on issues involving agency-wide lease terms and 

conditions. However, the agencies do not have a detailed process for doing 

so in a timely manner. For example, beginning in 2010, BLM and the 

Forest Service discussed potential changes proposed by the Forest 

Service to the terms and conditions in three existing phosphate leases. 

According to BLM and Forest Service officials, although BLM made some 

of the changes the Forest Service was seeking, most of the substantive 

changes being proposed by the Forest Service necessitated coordination 

with BLM’s Washington, D.C., headquarters because they would require 

changes to the standard leasing forms used by BLM. Subsequently, in 

December 2011, the Forest Service proposed several changes to BLM’s 

general lease terms and conditions to BLM’s Washington, D.C., 

headquarters office that, in the Forest Service’s view, would better protect 

the government from potential liability associated with selenium 

contamination in the future, particularly in light of the lawsuit noted earlier. 

However, as of April 2012, the agencies had not yet reached agreement on 

whether or how to change the general lease terms and conditions. During 

this period, BLM has renewed three phosphate leases for another 20 years 

without including the changes the Forest Service was seeking, in part to 

meet the deadline for renewing the leases. In commenting on a draft of this 

report, Interior noted that an additional reason the leases were renewed 

without including the Forest Service’s proposed changes was a difference 

in professional judgment between officials of the two agencies. Without a 

timely process for resolving disagreements on the part of BLM and the 

Forest Service regarding lease terms and conditions, we are concerned 

that BLM may again readjust leases or issue new leases in the future 

without having resolved disagreements that may exist between the 

agencies about proposed lease terms and conditions. For Forest Service 

officials, this is of particular concern because 16 leases on Forest Service 

land are scheduled for readjustment in the next 5 years, and once a lease 

is readjusted, as noted earlier, its provisions are in effect for 20 years. In 

commenting on a draft of this report, both Interior and the Forest Service 

told us they have begun working to improve the coordination process.

Fourth, BLM does not have mechanisms in place for overseeing all 

activities that are being conducted by third-party contractors, and the 

agency could not identify the statutory or regulatory provisions that 

authorize or lay out its responsibilities with regard to directing and 

overseeing such arrangements. In two instances, BLM has directed mine 

operators to enter into and pay for contracts with third parties to provide 

monitoring and other services associated with the construction and 
 

Page 26 GAO-12-505 Phosphate Mining on Federal Land

installation of waste-pile cover systems and other related reclamation 

activities on mine sites.32 However, in neither instance does BLM have a 

written agreement with the mine operators to outline expectations for the 

monitoring contracts or clearly define the roles and responsibilities of the 

various parties. BLM officials told us that even without such agreements, 

they believe that they have adequate controls in place and can take 

enforcement actions over the work being done. For example, officials noted 

that BLM, rather than the mine operator, selected the contractor for one 

mine and will do so for the second. In addition, they noted that one of the 

contracts between the operator and the third party is based on a statement 

of work BLM wrote and that this contract repeatedly states that work is 

being done for BLM and at BLM’s direction. Further, BLM officials told us 

that even without such written agreements, under the applicable 

regulations the agency can issue enforcement orders to compel the mine 

operator’s compliance with established requirements, including those 

contained in the records of decision approving the mine plans.33

Nevertheless, we are concerned that without written agreements with mine 

operators, BLM’s ability to ensure that the work is carried out to its 

satisfaction is unclear. For example, while BLM officials cited the agency’s 

ability to issue enforcement orders as a useful control mechanism, agency 

officials have also noted limitations with this process. Specifically, they told 

us that an operator may take many months to comply with an enforcement 

order and that BLM lacks the authority to issue fines to, or impose fees on, 

phosphate mine operators for failing to comply with an enforcement 

order.34 Moreover, we have broader concerns because BLM could not 

identify the statutory or regulatory provisions that specifically authorize or 

lay out its responsibility with regard to the contractual arrangements the 

agency has required mine operators to enter into.

 

32In the first of these instances, BLM stated in its record of decision on the EIS for one 

mine that it would enter into a written agreement with the mine operator for monitoring the 

installation of a cover system to mitigate potential environmental impacts associated with 

the mine. In another record of decision, BLM did not specifically mention a written 

agreement, but stated that the operator would be responsible for certain costs associated 

with a similar contractual arrangement.

3343 C.F.R. § 3598.4 (2011).

34Failure of the operator to take action in accordance with an enforcement order is 

grounds for BLM to issue an order to cease operations or to initiate legal proceedings 

against the operator and cancel its lease.
 

Page 27 GAO-12-505 Phosphate Mining on Federal Land

Since selenium contamination was discovered in 1996, federal agencies 

and phosphate mine operators in Idaho have largely taken actions 

focused on assessing the extent of selenium contamination at the 16 

mines where such contamination has been identified, and have 

conducted limited remediation. The federal agencies reported having 

spent about $19 million on this effort, about half of which has been 

reimbursed by mine operators. The mine operators have incurred 

additional costs for assessment and remediation activities, according to 

agency officials, but the operators did not provide documentary evidence 

to support these claims. Future cleanup costs are unknown because the 

agencies have not selected final cleanup actions, although agency 

officials informally estimate these costs could amount to hundreds of 

millions of dollars.

Since the discovery of selenium contamination in 1996, federal and state 

agencies and mine operators have worked to assess the extent of the 

contamination caused by phosphate mining, and have conducted some 

limited remediation. Agency officials described a number of factors they 

believe contributed to the amount of time spent on these efforts, including 

a shift in their cleanup approach after nearly 10 years of activity.

According to federal and state officials, in 1997 the agencies and mine 

operators formed a voluntary working group led by the mine operators to 

collaborate on efforts to investigate the selenium contamination 

discovered at that time. As part of this and other parallel efforts, mine 

operators and the agencies, including the Forest Service and the U.S. 

Geological Survey, spent 4 to 5 years collecting water-quality and other 

data and publishing reports that helped quantify the scope of the 

selenium problem, according to these officials. These data-gathering 

efforts indicated that high concentrations of selenium were widespread 

throughout the area.

According to Forest Service and state officials, given the broad scope of 

the problem and the potential risks posed by the contamination identified 

by these early efforts, federal and state agencies decided it would be 

beneficial to move from a largely voluntary effort primarily paid for by 

mine operators to one in which the agencies formally coordinated their 

actions under federal and state authorities. As a result, in 2000 the six 

agencies with authority over cleanup efforts— BLM, FWS, BIA, the Forest 

Service, EPA, and IDEQ—and the Shoshone-Bannock Tribes signed a 

memorandum of understanding that provided a framework for 

coordinating their investigations of, and responses to, the 

Agencies and Mine 

Operators Have 

Focused on Assessing 

Contamination, Not 

Conducting 

Remediation, and 

Total Cleanup Costs 

Are Currently 

Unknown

Actions to Date to Address 

Selenium Contamination 

Have Included Lengthy 

Assessment Efforts and 

Limited Remediation

Assessments Have Been 

Ongoing Since 1997 
 

Page 28 GAO-12-505 Phosphate Mining on Federal Land

contamination.35

The areawide investigation began in 2001 and was led by IDEQ. The 

agencies’ costs for this investigation were to be reimbursed by the 

operators in accordance with the terms of a settlement agreement. The 

investigation included gathering available data and identifying data gaps, 

conducting water and other environmental sampling, completing risk 

assessments that identified contaminant sources and ways in which 

humans and wildlife could be exposed, and developing guidance based 

on these risk assessments for remediation goals to potentially be used in 

the site-specific efforts. Sampling efforts showed selenium levels above 

state water quality standards; as a result, IDEQ listed more than 150 

miles of streams flowing near and through the mines as impaired under 

the Clean Water Act. According to a senior IDEQ official, water quality

monitoring work under the areawide investigation continues, although the 

settlement agreement for the investigation expired in 2011.

The memorandum identified a two-pronged approach: 

agencies would conduct (1) an areawide investigation to continue the 

work the mine operators and agencies had initiated through the working 

group and (2) site-specific investigations to address contamination 

sources at individual mines.

Site-specific investigations began in 1998 and as of March 2012, 

assessment activities were continuing, according to Forest Service and 

EPA officials. Officials told us that the agencies originally decided to 

conduct this assessment work under CERCLA’s non-time critical removal 

process, during which a site investigation and engineering evaluation/cost 

analysis is conducted before a removal action is selected and 

implemented. According to EPA officials, this process is ideally suited for 

isolated contamination sources that have proven remedies. Forest 

Service and EPA officials told us that the agencies chose this route 

because the officials responsible at the time believed it would be the 

quickest way to control and abate immediate threats posed by the 

contamination within waste rock dumps. From 1998 to 2004, the agencies 

and mine operators entered into non-time critical removal process 

 

35The responsible land management agencies have been delegated authority for cleanup 

response under CERCLA at these sites except in emergency situations. For the mines 

located partially on BLM land, BLM has deferred to EPA to take the CERCLA lead. For the 

one mine located on the Fort Hall Indian Reservation, home of the Shoshone-Bannock 

Tribes, the agencies determined that EPA had authority for cleanup response under 

CERCLA.
 

Page 29 GAO-12-505 Phosphate Mining on Federal Land

settlement agreements at six mines, with final engineering evaluation/cost 

analysis reports issued for two of these mines in 2006 and 2011.

According to EPA and Forest Service officials, however, in 2006—after 

nearly 10 years of pursuing actions under the non-time critical removal 

process—the agencies decided to switch their approach and address the 

contamination issues at mine sites under the longer-term remedial action 

process, resulting in further clean-up delays as additional site-specific 

data were collected. In explaining the switch, Forest Service and EPA 

officials told us that information generated from the areawide and sitespecific investigations conducted prior to 2006 indicated that the 

contamination issues at the mines were more complex and widespread 

than originally suspected and that many mines would likely require longterm water treatment of a kind not typically implemented as part of a nontime critical removal action. As a result, according to EPA and Forest 

Service officials, the approach offered by CERCLA’s remedial action 

process would allow a more comprehensive investigation and evaluation 

of the mines and remediation that would fully address long-term threats 

posed by selenium. Forest Service officials told us that at three of the six 

mines where non-time critical settlement agreements had been reached, 

the Forest Service decided to continue with the non-time critical removal 

process to address contamination at waste rock dumps, while also 

negotiating settlement agreements with the mine operators to address 

other contamination at these sites through the long-term remedial action 

process. At the remaining three mines that were undergoing assessment 

under the non-time critical removal process, EPA began negotiating 

settlement agreements for remedial investigations and feasibility studies 

rather than continuing with the non-time critical removal process.

As of March 2012, mine operators and agencies had begun work on the 

first step of remedial action process—conducting remedial 

investigations—at 7 of the 16 mines known to have selenium 

contamination, including 5 of the 6 mines that were being addressed 

under the non-time critical removal process. The agencies and mine 

operators are still in the early stages of this process—none had produced 

a complete remedial investigation report as of March 2012—and, 

according to officials, completing this process at all mines will likely 

require years of additional work before final cleanup remedies are 

selected. For the remaining 9 of the 16 contaminated mines, a senior 

Forest Service official told us officials are negotiating settlement 
 

Page 30 GAO-12-505 Phosphate Mining on Federal Land

agreements at 3 mines but have not initiated the remedial action process 

at the 6 others,36

Table 2: CERCLA Activities at 16 Contaminated Mines, by Assessment Process

either because the agencies have not had sufficient 

resources to begin negotiations, the agencies have not reached 

settlements with the mine operators, or (for two mines) the agencies are 

addressing the contamination under provisions of the Clean Water Act or 

the terms of the reclamation plan. Table 2 shows the CERCLA activities 

that have occurred at these 16 mines, as well as estimated dates for 

future activities.

 

36Although these nine mines have not entered the remedial action process, varying 

amounts of assessment work have occurred at each mine, according to agency officials.

Pre-Removal 

or Remedial 

Process Non-Time Critical Removal Process Remedial Action Process

Mine 

Preliminary

assessmenta Process initiatedb

Final site 

investigation 

report

Final 

engineering 

evaluation/cost 

analysis report

Removal 

action 

completed

Process 

initiatedb

Remedial 

investigation 

complete

Feasibility 

study 

complete

Ballard - 2003 - - - 2009 (2013) (2013)

Enoch Valley - 2003 - - - 2009 (2014) (2014)

Henry - 2003 - - - 2009 (2013) (2014)

North Maybe 2000 2004 - - 2008c 2010 - - 

Smoky 

Canyon

- 2003 2005 2006 2007 2009 (2013) (2014)

South 

Maybe 

Canyon

- 1998 2007 2011 (2014) - - - 

Champ 2000 - - - - - - - 

Conda 2008 - - 2011 (2013) 2008 - (2014)

Diamond 

Gulch

2007 - - - - - - - 

Dry Valley 2008 - - - - - - - 

Gay 2003 - - - - 2010 (2015) (2016)

Georgetown 

Canyon

2007 - - - - - - - 

Mountain 

Fuel

2000 - - - - - - - 
 

Page 31 GAO-12-505 Phosphate Mining on Federal Land

Source: GAO analysis of agency data.

Notes: Dates in parenthesis represent estimates for future milestones. Shading indicates mines that 

had been initially assessed under the non-time critical removal process. 

a

Preliminary assessments under CERCLA are often the first step undertaken after a potentially 

contaminated site has been identified. They are used to identify potential threats, determine the need 

for further investigation under the removal or remedial process, and gather information to evaluate 

eligibility for the National Priorities List. 

b

In most cases, this process was initiated when the agencies and mine operators signed a settlement 

agreement. 

c

The action at this mine was a time-critical removal action, the need for which was discovered as part 

of the assessment work conducted under the non-time critical removal action process. 

d

This is an active mine not currently being assessed for cleanup under CERCLA. 

Federal agencies have also begun using CERCLA to address harm to 

fish and wildlife resources from contamination associated with the 

phosphate mines in southeastern Idaho. According to FWS officials, in 

2011 the agency initiated the first step in a CERCLA process known as 

natural resource damage assessment, under which the agency may 

ultimately seek damages for harm to natural resources caused by 

phosphate mining and conduct natural resource restoration activities.37

Through this process, mine operators may work cooperatively with federal 

agencies to develop an assessment and implement natural resource 

restoration activities, or the agencies may independently develop a 

damage claim to be resolved through settlement or litigation. FWS 

officials told us they are determining whether a natural resource damage 

assessment is warranted and are working with other agencies in the area 

to determine whether they are interested in participating in the process.

 

37Under CERCLA, a party responsible for the release of a hazardous substance is liable 

for injuries to natural resources resulting from the release. The regulations implementing 

the act designate certain federal agencies, state governments, and tribal authorities as 

natural resource trustees and authorize them to make claims against the parties 

responsible for the injuries. The federal trustees include FWS.

Rasmussen 

Ridged 2002 - - - - - - - 

South 

Rasmussend - - - - - - - - 

Wooley 

Valley

2000 - - - - - - - 
 

Page 32 GAO-12-505 Phosphate Mining on Federal Land

Since selenium contamination was discovered in 1996, federal agencies 

and mine operators have taken some limited cleanup actions to address 

highly problematic sources of contamination at three phosphate mines.

• Smoky Canyon mine. In 2007, to help reduce the amount of selenium 

leaching into a creek, a mine operator built a pipeline to divert water 

around a contaminated waste rock dump at the Smoky Canyon mine 

on Forest Service land. This action was the culmination of a 2003 

CERCLA settlement agreement under the non-time critical removal 

process. According to Forest Service officials, this waste rock dump—

overburden placed into the bottom of a valley—was the source of one 

of the highest concentrations of selenium in the area, and the 

diversion appears to have substantially reduced the amount of 

selenium coming out of the waste dump. Officials from EPA and 

IDEQ, however, have voiced concerns with the effectiveness of the 

diversion, especially after large amounts of precipitation in 2011 

caused the system to overflow, allowing water to once again flow 

through the waste rock and carry high amounts of selenium into the 

creek. The mine, including this waste rock dump, is being assessed 

as part of an ongoing remedial investigation and additional cleanup 

measures to address the waste rock dump are expected to emerge 

from the investigation.

• North Maybe mine. As part of assessment work performed under the 

non-time critical removal process, one mine operator identified 

elevated selenium levels in ponds at the bottom of a large waste rock 

dump at the North Maybe mine. These selenium levels posed a threat 

to an adjacent creek if a large amount of precipitation should cause 

the ponds to overflow into the creek. To mitigate this threat, in 2008 

the Forest Service approved a time-critical removal action where the 

mine operator excavated contaminated sediments from the ponds.

The operator then disposed of the sediments by adding them to a 

separate waste dump at the site and covering them with organic 

material to reduce exposure to precipitation. The Forest Service 

project manager reported that care was taken to ensure that this 

action would be consistent with potential future cleanup activities.

• South Rasmussen mine. After water quality monitoring revealed that a 

waste dump at the South Rasmussen mine was discharging selenium 

into a creek without a required permit, EPA took an enforcement 

action against the mine operator under the Clean Water Act. The mine 

operator agreed to pay $1.4 million in fines and, according to an EPA 

official, has begun to address the discharge by capturing the outflow 

from the dump and storing it temporarily in ponds. According to EPA 

Agencies and Operators Have 

Conducted Limited 

Remediation
 

Page 33 GAO-12-505 Phosphate Mining on Federal Land

officials, the mine operator will need to follow up with a more 

permanent solution to address the contamination from the mine, but

the officials have not determined the most appropriate approach for 

doing so. EPA officials told us they are currently determining whether 

other active mines in the area may also potentially be violating the 

Clean Water Act, but said that their efforts have been limited because 

EPA has not had sufficient staff or funding. EPA officials told us they 

may also initiate additional enforcement actions under the Clean 

Water Act at inactive mines if they determine that no progress is being 

made under CERCLA.

At a fourth mine, BLM officials told us they are working with a mine 

operator to arrange for additional mitigation measures to stem an ongoing 

selenium discharge, although such measures have not yet been taken.

Specifically, BLM officials told us they are working with the operator to 

incorporate additional mitigation measures into a reclamation plan being 

implemented at a portion of the Rasmussen Ridge mine that has already 

been mined. BLM officials told us that they are able to take this somewhat 

unusual approach because other portions of the mine are still active and 

the operator has equipment on site that could be used to implement these 

mitigation measures, and undertaking these efforts now would help 

reduce costs for the operator. These officials also noted that the mine 

operator has an incentive to agree to this approach because the operator 

has other mine plan approvals pending with the agency and cooperating 

would help demonstrate willingness to address contamination resulting 

from this operator’s mining activities.

Since 1996, mine operators have also conducted mitigation work, 

including testing remediation methods, outside the purview of CERCLA 

settlement agreements, according to operator representatives with whom 

we spoke. For example, these representatives told us that they took steps 

to restrict livestock and wildlife access to ponds and other water at their 

mines. In addition, according to one mine operator, the operators have 

supported research projects related to selenium contamination, including 

one that involved applying cheese whey and iron granules to 

contaminated soils to test whether the materials could prevent plant 

uptake of selenium, making it biologically unavailable.38

 

38Whey is the water and solid components of milk that remain after the manufacture of 

cheese.

A representative 

from this operator told us that some of these projects were successful, 
 

Page 34 GAO-12-505 Phosphate Mining on Federal Land

although further research is needed before these techniques can be 

applied on a large scale. Further, EPA officials also noted that mine 

operators have taken action to reduce the uptake of selenium in 

reclamation vegetation and better control stormwater runoff.

Agency officials told us that five factors have contributed to the length of 

time spent conducting assessments at contaminated phosphate mines in 

southeastern Idaho. First, the phosphate mines present complicated, largescale contamination challenges that are unique to the area, according to 

agency officials. While the agencies have experience dealing with other 

contaminated, large-scale mines, especially hardrock mines, officials told 

us that the phosphate mines in southeastern Idaho feature a complex 

interaction of selenium in the waste rock with the surrounding surface water 

and groundwater. EPA officials explained that complex systems such as 

those found at the phosphate mines require considerable time to 

understand, which is why the agencies have spent—and will likely continue 

to spend—years assessing contamination at these mines.

Second, having multiple agencies with authority over some aspect of 

cleanup at the mines—including different agencies acting as the lead at 

different sites—has slowed down the assessment process, according to 

officials with these agencies. For example, EPA and Forest Service 

officials noted that it is time-consuming to coordinate the other agencies’ 

involvement, including obtaining, considering, and reconciling multiple, 

often conflicting, opinions. EPA officials told us that technical 

disagreements among agencies have led to delays in reviewing some 

operators’ assessment documents. Further, according to these officials, 

the situation is exacerbated at those mines located on private and federal 

land where decision-making authority is shared, requiring those agencies 

to come to full agreement before moving forward with decisions or actions 

that affect the entire site. In addition, the agencies’ roles sometimes 

needed clarification. For example, at one mine located on an Indian 

reservation, agency officials said BIA and EPA spent 2 years negotiating 

which agency would take the lead in managing cleanup work under 

CERCLA because the agencies disagreed over which agency had the 

legal authority to do so.

Third, the decision to switch from the non-time critical removal process to 

the remedial action process resulted in delays. According to Forest 

Service and EPA officials, the agencies and mine operators spent 

additional time renegotiating settlement agreements at mines where they 

had begun to address contamination under the non-time critical removal 

process, delaying the process of negotiating new agreements at the 

Several Factors Contributed to 

Lengthy Time Spent on 

Assessment
 

Page 35 GAO-12-505 Phosphate Mining on Federal Land

mines that had not yet been addressed. These officials also told us that 

some of the data collected under the non-time critical removal process 

needed to be validated by third-party external contractors, which resulted 

in additional delays. Senior EPA and Forest Service officials who entered 

the process after the non-time critical approach was selected told us they 

believed the agencies could have started the CERCLA remedial action 

process initially, in part because of the large sizes of the mine sites and 

the high degree of uncertainty associated with them. EPA and Forest 

Service officials told us that selecting the remedial action process from 

the beginning may have streamlined the process of assessing 

contamination.

Fourth, according to EPA, Forest Service, and state officials, an individual 

mine operator’s level of participation and cooperation influences the 

amount of progress that can be made at the contaminated mines, and a 

difficult situation with a mine operator can slow down the assessment 

process. According to agency officials, this has happened in several 

cases. For example, as noted earlier, one mine operator sued to compel 

the federal government to share liability for the costs of cleaning up 

contamination under CERCLA at four mines; Forest Service officials told 

us that responding to that lawsuit has taken resources and attention away 

from managing assessment and cleanup activities at the other mines on 

its land, resulting in additional delays to the assessment process.

Ultimately, the difficulties associated with this situation resulted in the 

agency’s terminating the assessment work the mine operator had been 

conducting at two of the mines and undertaking the work itself. In 

addition, EPA officials told us they have had concerns with the quality of 

the draft reports the mine operators produced for review by the agencies 

as part of the assessment process. These officials told us the agencies 

provided extensive comments on the draft reports, necessitating 

significant rework by the mine operators.

Finally, the Forest Service did not have sufficient technical and 

management expertise in place, or a sufficient focus on enforcement, in 

the early years of the assessment efforts to successfully manage those 

efforts under CERCLA, according to Forest Service and EPA officials. For 

example, according to an internal Forest Service review, the CERCLA 

knowledge and expertise of the Forest Service field staff were not 

sufficient to address the complexity of the mines, which limited cleanup 

progress. The review also found the agency did not hire enough technical 

support contractors with relevant expertise to assist with oversight. As a 

result, according to Forest Service officials and the review, it was difficult 

for the Forest Service to critically assess the mine operators’ work, and 
 

Page 36 GAO-12-505 Phosphate Mining on Federal Land

the agency did not always conduct oversight in a timely manner. In 

addition, according to EPA officials, the Forest Service was not 

aggressive in enforcing the terms of its early settlement agreements, 

which led to a site assessment lasting 13 years in one case. Moreover, 

these officials told us they believe the lack of enforcement occurred in 

part because the Forest Service, unlike EPA, generally does not have 

experience with CERCLA enforcement.

In 2008—12 years after the contamination was first identified—the Forest 

Service recognized it needed staff with more CERCLA-specific 

experience to manage the cleanup work, and in 2009 it hired a former 

EPA official to manage its cleanup program. According to this official, the 

Forest Service also hired more experienced project managers for each 

mine and increased its use of technical support contractors to bolster its 

oversight of mine operators. EPA officials told us they believe the 

composition of the Forest Service staff is now appropriate for managing 

the cleanup work at the phosphate mines but that having the Forest 

Service manage the CERCLA cleanup work at the mines may continue to 

pose certain challenges. For example, EPA officials told us they believe 

the Forest Service lacks the institutional support for its CERCLA project 

managers that is available to EPA’s project managers.39

Federal and state agencies reported having spent about $19 million since 

fiscal year 2001 to oversee assessment and remediation efforts at 

contaminated phosphate mines in southeastern Idaho,40 according to our 

analysis of federal and state data.41

 

39Specifically, EPA officials told us that CERCLA project managers who work on EPA’s 

phosphate-related cleanup in Idaho have at their disposal roughly 45 full-time equivalent 

staff with expertise in contaminant cleanup—including chemists, biologists, and attorneys.

Forest Service officials said their staff consists of five project managers and two technical 

support staff, including a geologist and an environmental protection specialist; they also 

have three attorneys available. However, these officials told us that they hire technical 

contractors for additional support.

Of this amount, these agencies spent 

40In addition to oversight, the Forest Service has also directly conducted some limited 

assessment work at two mines.

41Reported spending represents agency expenditures, also referred to as outlays, in 2012 

constant dollars. Also, officials from each agency told us they incurred additional 

expenses related to cleanup at the phosphate mines in southeastern Idaho prior to fiscal 

year 2001, but since not all of the agencies had records of those expenses, we are 

reporting expenditures beginning in 2001. 

Since 2001, Agencies Have 

Spent About $19 Million to 

Oversee Assessment and 

Remediation, but Costs of 

Mine Operators’ Activities 

Were Unavailable
 

Page 37 GAO-12-505 Phosphate Mining on Federal Land

$10 million on general project management and assessment efforts that 

reached across multiple mines, including time spent planning and 

consulting over the cleanup process and working on the areawide 

investigation, with the remainder spent primarily on oversight of activities 

at individual mines.

Agencies also reported that the mine operators, who have carried out 

most of the assessment and remediation efforts, have reimbursed the 

agencies for 44 percent of the total agency expenditures under CERCLA 

settlement agreements, and the rest has come from the agencies’ 

budgets. Figure 7 shows, by agency, expenditures paid from agency 

budgets and expenditures reimbursed by mine operators.

Figure 7: Total Agency Expenditures for Overseeing Phosphate Mine Assessment 

and Remediation, and Percentage and Amounts Reimbursed by Mine Operators, 

2001-2011

Notes: In some cases, mine operators have contributed additional amounts that the agencies expect 

to use to defray future costs. Because the agencies have not yet expended these amounts, this figure 

does not reflect these amounts. Expenditures include the agencies’ administrative costs. 
 

Page 38 GAO-12-505 Phosphate Mining on Federal Land

As figure 7 shows, the agencies reported varying amounts of 

expenditures and rates of reimbursement. The Forest Service, which is 

managing cleanup efforts at 7 of the 16 contaminated mines, reported 

spending the largest amount—about $9 million—an amount that 

approaches the other agencies’ expenditures combined. The Forest 

Service also reported incurring more expenditures that were not 

reimbursed—about $6 million—than the other agencies, receiving 

reimbursement for 25 percent of its expenditures. According to Forest 

Service officials, the agency’s relatively low reimbursement rate occurs, in 

part, because the Forest Service did not have cost recovery provisions in 

its settlement agreements for any of its oversight work until 2006. BLM 

and BIA also reported low overall rates of reimbursement because, for the 

most part, these agencies did not have cost recovery arrangements at the 

mines where they were most active until settlement agreements were 

signed in 2008 or later. Instead, they paid for oversight at these mines in 

the years leading up to the settlement agreements out of their budgets. In 

contrast, EPA has managed cleanup at five mines and reported incurring 

about $3 million in expenditures, of which 80 percent has been 

reimbursed by mine operators. EPA officials told us that because of 

limited funding and staff resources, as well as other factors, EPA Region 

10 (which oversees phosphate assessment and cleanup activities in 

Idaho) helps oversee CERCLA assessments primarily at mines where it 

has negotiated cost recovery mechanisms as part of settlement 

agreements, or expects to do so in the future. Similarly, FWS officials told 

us that because of the agency’s own funding constraints, they have also 

restricted their involvement to those mines where cost recovery is 

available, also resulting in a high rate of reimbursement. According to the 

EPA and FWS officials, this approach protects the agencies financially, 

but it has also limited their ability to contribute their expertise across the 

cleanup efforts. See appendix II for more detailed information on agency 

expenditures and amounts reimbursed by mine operators at each of the 

16 mines known to have selenium contamination.

The approximately $19 million in expenditures for agency oversight efforts 

does not include the cost of assessment and remediation work the mine 

operators have conducted, either under the terms of settlement 

agreements or independently, according to agency officials. For example, 

the operators’ costs for developing and implementing plans for water 

quality sampling or constructing a diversion pipeline are not included in 

the agencies’ expenditure total. We requested documentary evidence to

support the costs incurred by the mine operators but they did not provide 

these documents to us. Anecdotal information suggests that the mine 

operators have spent a significant sum on assessment and remediation 
 

Page 39 GAO-12-505 Phosphate Mining on Federal Land

work. For example, one mine operator representative told us his company 

spent $12 million on assessment and remediation actions taken under 

settlement agreements from 2003 through 2011 at its three mines, and 

another mine operator reported it had spent about $10 million on cleanuprelated work at four of its mines. Nevertheless, without the mine 

operators’ expenditure information, we cannot be assured of the accuracy 

of the amounts the mine operators reported spending on assessment and 

remediation work.

According to EPA and Forest Service officials, they have not developed 

cost estimates for future cleanup actions at any of the 16 contaminated 

phosphate mines because agencies are still conducting assessment 

work, and these officials will not determine cleanup actions until they have 

completed this work. However, information from phosphate and hardrock 

mines provides an indication of potential future costs that are likely, and 

which, according to informal estimates provided by EPA officials, could 

total hundreds of millions of dollars, in part because several of the mines 

are likely to require long-term remedial actions that are typically costly to 

implement.

According to EPA and Forest Service officials, the following two cleanup 

actions, if required, would significantly influence cleanup costs at 

phosphate mines in southeastern Idaho:

• Long-term water collection and treatment. According to EPA officials, 

the need for long-term water collection and treatment can be the most 

costly remedial action at a mine site, primarily because water 

collection and treatment can require ongoing activity for more than 

100 years. Costs for this type of action include design; the initial 

capital investment in infrastructure for collection, storage, and 

treatment of the water; ongoing infrastructure upgrades and 

replacements; and personnel costs for continual operation. Such 

costs can be significant; for example, at another cleanup site in 

Region 10, the Holden hardrock mine in Washington State, EPA and 

the Forest Service have estimated the cost for long-term water 

treatment will be about $47 million. EPA officials told us that, based 

on information gathered to date, at least five phosphate mines may 

require long-term water treatment.

• Waste rock covers. According to EPA officials, the cost of consolidating 

and capping large volumes of waste rock materials can vary depending 

on the number of acres needing coverage, the type of cover required, 

Agencies Have Not 

Developed Cost Estimates 

for Future Cleanup Actions 

Because Site Assessment 

Efforts Have Not Been 

Completed
 

Page 40 GAO-12-505 Phosphate Mining on Federal Land

and the topography of the area to be covered. For example, the Forest 

Service recently approved a cover, consisting of a clay layer, a 

synthetic membrane, and soil, that will be implemented as part of a 

non-time-critical removal action at one phosphate mine and is 

estimated to cost about $17 million to cover roughly 100 acres of a 

cross-valley fill. A synthetic cover recently required as part of the 

reclamation plan at a new mine is estimated to cost about $29 million to 

cover nearly 400 acres.42

Based on our review, several other factors add to the uncertainty about 

the level of cleanup that will be required in the area, and the amount and 

allocation of cleanup costs.

According to a Forest Service official, longterm monitoring and maintenance can further increase the costs of 

these covers.

• The selenium water quality standard is expected to change. According 

to EPA officials, final remedial actions under CERCLA will be based, 

in part, on the state’s water quality standard for selenium in rivers and 

streams. This standard is based on a national recommendation issued 

by EPA, which is in the process of updating its recommendation to 

better protect fish and other aquatic organisms. After the new 

recommendation is issued, according to EPA officials, Idaho will likely 

adopt a new state standard, using the recommendation as a basis. If 

the new standard is more stringent than the current standard, the level 

of cleanup required may change as well, increasing the costs 

associated with cleanup.43

• A total maximum daily load for selenium has not yet been established.

Because the streams in the Blackfoot River watershed—the main 

watershed affected by selenium contamination in Idaho—have been 

listed as impaired for selenium under section 303(d) of the Clean 

Water Act, the state is required to establish a TMDL for selenium for 

 

42These estimated costs represent the cost to the government to construct the covers; 

according to BLM officials, the costs would be less if the operators were to perform the 

work. 

43One phosphate mine operator is developing a proposal for a site-specific water quality 

standard for selenium at one of its mines, which is allowed under EPA regulations. 

According to EPA officials, in some locations, the nationally recommended standard may 

be considered under- or overprotective if the species at a site have different sensitivities 

than those considered for the national recommendation. EPA will ultimately decide 

whether to approve the site-specific standard. 
 

Page 41 GAO-12-505 Phosphate Mining on Federal Land

those waters. According to IDEQ and EPA officials, the state has 

delayed developing the TMDL, in part because the ongoing CERCLA 

assessment process is yielding valuable information about the 

sources of selenium in the watershed and how these sources interact 

with one another—and this information will be critical to helping the 

state establish a TMDL for selenium. Once a TMDL is established, it 

may inform pollution limits that are established for the mines that 

directly discharge selenium to the watershed. According to EPA 

officials, a TMDL would also likely help provide a road map for 

handling the selenium contamination at the remaining mines where 

CERCLA actions have not yet been initiated.

• The government’s share of future cleanup costs is not yet determined.

One outcome of the lawsuit filed against the government by a mine 

operator under CERCLA is that according to the court decision, the 

government is potentially liable for costs associated with 

environmental contamination at the four mine sites at issue in the 

litigation. However, the court has not determined the government’s 

share of the cleanup costs. As of April 2012 the government and the 

mine operator were negotiating a proposed settlement regarding 

allocation of past and future costs that will be final once approved by 

the court. Because of the court’s decision holding the government 

potentially liable, agency officials told us other mine operators may 

also seek to have the government share cleanup costs with them. If 

they are successful, the agency officials said the government’s costs 

could ultimately be significant.

Federal agencies reported holding financial assurances for phosphate 

mine operations in southeastern Idaho for about $91 million to cover (1) 

mine reclamation and related activities and (2) site assessment and 

limited remediation activities negotiated under CERCLA settlement 

agreements. Specifically, the agencies reported holding financial 

assurances valued at approximately $80 million to cover mine 

reclamation and related activities and $11.4 million to cover site 

assessment and limited remediation activities negotiated under CERCLA 

settlement agreements. About $4.5 million of this amount was in the form 

of corporate guarantees, a type of financial assurance that both BLM and 

EPA have stated is potentially risky because corporate guarantees are 

not covered by a specific financial asset. The agencies have not entered 

into settlement agreements or established financial assurances to cover 

future cleanup costs because, as described in the prior section, they have 

not determined the actions that will be needed or the associated costs.

Agencies Hold 

Millions of Dollars in 

Financial Assurances 

for Site Reclamation 

and Assessment, but 

Some Are in the Form 

of Potentially Risky 

Corporate Guarantees
 

Page 42 GAO-12-505 Phosphate Mining on Federal Land

As of March 2012, BLM reported holding about $75.2 million in 

reclamation financial assurances for 13 of the 18 phosphate mines where 

federal agencies are overseeing mining operations or cleanup activities.44

 

44This figure includes financial assurances held by the state of Idaho and BIA for 

phosphate operations on federal land overseen by BLM. According to BLM officials, BLM 

can use these financial assurances to help cover the cost of reclamation or federal royalty 

obligations. As a result, we have included them with the reclamation bonds held by BLM. 

(The five mines without BLM financial assurances are all inactive and are 

being assessed for cleanup under CERCLA.) Over 95 percent of this 

amount—almost $72 million—is associated with the five currently active 

mines, and nearly all of that amount—over $66 million—is associated with 

the two most recently approved active mines, the Blackfoot Bridge and 

Smoky Canyon mines. BLM also reported holding an additional $127,200 

in financial assurances for eight leases where the operator is engaging in 

exploratory activities but where mine operations have not yet commenced 

and other unmined sites. Figure 8 shows the amount and composition of 

BLM-held reclamation financial assurances for phosphate mines in Idaho, 

including the amounts associated with each of the five active mines.

BLM and the Forest 

Service Reported Holding 

About $80 Million in 

Financial Assurances for 

Reclamation-Related 

Activities
 

Page 43 GAO-12-505 Phosphate Mining on Federal Land

Figure 8: Amount and Composition of BLM-Held Reclamation Financial Assurances, for Phosphate Mines in Idaho

In addition, as of March 2012, the Forest Service reported holding $5.2 

million in financial assurances for reclamation of mining-related activities 

associated with six special-use permits. These financial assurances are 

for reclamation of disturbed surfaces that are associated with, but not 

physically located on, federal leases on Forest Service land,45 through 

activities such as removing access roads and auxiliary structures and 

restoring forest land. Of this total, about 54 percent—or $2.8 million—is 

for the Smoky Canyon mine.

 

45As noted, BLM holds financial assurances related to mining activities physically located 

on leased Forest Service land.
 

Page 44 GAO-12-505 Phosphate Mining on Federal Land

As of March 2012, there were 6 mines undergoing CERCLA assessment 

for which the Forest Service and EPA reported holding financial 

assurances valued at $11.4 million. Such assurances are intended to help 

ensure mine operators’ performance under CERCLA settlement 

agreements. For one of these mines, the Forest Service holds a financial 

assurance, which is valued at about $3.9 million and covers both a 

CERCLA assessment and previous remediation work at that mine to 

construct a water diversion pipeline, according to agency officials. For the 

other five mine sites, EPA holds $7.5 million in financial assurances to 

cover CERCLA assessments, according to agency officials.

About $4.5 million of the $7.5 million in financial assurances that EPA 

holds for three of the five mines is in the form of corporate guarantees. 

Corporate guarantees are promises by mine operators, sometimes 

accompanied by a test of financial stability, to pay remediation costs, but 

these guarantees do not require that funds be set aside by the operators 

to pay such costs. As a result, for these three sites, EPA does not hold a 

financial asset that it could use to pay for the work specified in the 

settlement agreement should the operator fail to do so. EPA officials 

noted, however, that these guarantees cover only the investigation and 

planning stage of the process, and that the operator at these mines has 

already successfully completed a significant portion of the activities under 

an earlier removal settlement agreement. Nevertheless, EPA Region 10 

has acknowledged the risk associated with corporate guarantees. In its 

2009 Region 10 Mining Financial Assurance Strategy,

46

 

46EPA Region 10, Region 10 Mining Financial Assurance Strategy, (Seattle, WA: January 

2009).

the region noted 

that the form of a financial assurance is as important as the amount and 

stated that corporate guarantees are not a secure mechanism should a 

company go bankrupt or have financial difficulties. As an example, the 

region cited a corporate guarantee that it had accepted from an operator 

of a mine smelter site in Washington State. When EPA requested a more 

secure type of financial assurance, the operator filed for bankruptcy, 

leaving the federal government with additional responsibility for the 

cleanup costs at that site. Recognizing the inherent risks associated with 

corporate guarantees, the region stated in its strategy that it would no 

longer accept them as part of CERCLA consent decrees or settlement 

agreements related to cleanup actions for mining operations.

The Forest Service and 

EPA Hold $11.4 Million in 

CERCLA Financial 

Assurances for Site 

Assessment and Limited 

Remediation Activities, but 

Some EPA Financial 

Assurances May be Risky
 

Page 45 GAO-12-505 Phosphate Mining on Federal Land

Such concerns about corporate guarantees have been raised previously 

by others. In 2000, for example, BLM stopped accepting corporate 

guarantees for new mining operations, stating that they are less secure 

than other forms of financial assurance, particularly in light of fluctuating 

commodity prices and the potential for an operator to declare 

bankruptcy.47 Moreover, as we reported in August 2005, EPA has stated 

that corporate guarantees offer EPA minimal long-term assurance that a 

company with environmental liability will be able to fulfill its financial 

obligations.48 As a result, EPA and taxpayers may be exposed to 

significant financial risk, especially at mining sites where one or a few 

parties are liable for cleanups—as is the case for phosphate mining in 

Idaho. We also noted in our August 2005 report that EPA’s selection of a 

reliable financial assurance mechanism is particularly important given the 

potential for large liabilities stemming from mining sites. EPA does not 

have regulations on the use of corporate guarantees as financial 

assurances under CERCLA, however. EPA is considering promulgating 

regulations related to financial assurances for mining and other industries 

and has solicited public comments on the risks associated with corporate 

guarantees and the experiences of regulators who have attempted to use 

them. EPA expects to publish a proposed rule outlining its approach to 

financial assurances later in 2013, according to EPA officials.

Selenium contamination from phosphate mining has been a concern in 

southeastern Idaho for over 15 years. Federal agencies have taken steps 

to strengthen their oversight of phosphate mining on federal land since 

selenium contamination was discovered in 1996 by requiring more 

detailed environmental assessments and reclamation plans, requiring

financial assurances that provide more coverage, and hiring additional 

staff. However, addressing the contamination has been a lengthy 

undertaking with many factors contributing to the length of this process, 

including the complexity and scale of the sites, sometimes-difficult 

relations with mine operators, an initial lack of expertise and resources on 

the part of the Forest Service, and the decision to switch to a more 

comprehensive cleanup approach. Nevertheless, the fact remains that 

after years of study and millions of dollars spent, the agencies and mine 

 

4765 Fed. Reg. 69998, 70004, 70074 (Nov. 21, 2000).

48GAO, Environmental Liabilities: EPA Should Do More to Ensure that Liable Parties Meet 

Their Cleanup Obligations, GAO-05-658 (Washington, D.C.: Aug. 17, 2005). 

Conclusions
 

Page 46 GAO-12-505 Phosphate Mining on Federal Land

operators are still years away from fully understanding the extent of 

contamination in the area and many more years away from completing 

actual mine cleanup.

The agencies have taken important steps aimed at preventing future 

contamination, including BLM’s use of more rigorous oversight 

procedures when considering or approving new mines, but gaps in 

agency policies and coordination may result in missed opportunities for 

the agencies to fully implement the approaches they have developed. For 

example, while BLM’s practice of setting financial assurances to cover the 

estimated full cost of reclamation for new phosphate mines may better 

protect the government from future cleanup liability, the agency has not 

documented this practice in official agency policy—lessening the certainty 

that the practice will be consistently followed in the future. Likewise, the 

lack of established coordination practices between BLM and the Forest 

Service may result in cases where BLM may not give full or timely 

consideration to the Forest Service’s input when establishing mine lease 

terms and conditions or setting financial assurance amounts for mines in 

southeastern Idaho. As a result, BLM in some cases may be basing its 

decisions on incomplete information. Additionally, while BLM has 

attempted to leverage its limited resources by requiring mine operators to 

pay for contractors to help oversee reclamation work, it does not have 

mechanisms in place to fully oversee such activities and could not identify 

its authorities for directing and overseeing such arrangements. And 

finally, EPA’s acceptance of financial assurances in the form of corporate 

guarantees related to assessment (and, potentially, cleanup) activities 

leaves the federal government at increased risk of shouldering more of 

the financial burden for these tasks should the mine operators fail to carry 

them out or declare bankruptcy. In its current efforts to draft regulations 

for financial assurances under CERCLA, EPA has stated that it plans to 

assess the risks associated with different forms of financial assurances, 

including corporate guarantees, and the experiences of regulators to 

assess the adequacy of various financial mechanisms—which we believe 

is an important step in ensuring that the financial assurances accepted by 

the federal government are adequately reducing the government’s 

exposure for cleanup costs.

To ensure effective oversight of phosphate-mining operations and 

reclamation and cleanup, we are making three recommendations to the 

Secretary of the Interior and one to the Administrator of EPA. Specifically, 

we recommend that the Secretary of the Interior direct the Director of 

BLM to

Recommendations for 

Executive Action
 

Page 47 GAO-12-505 Phosphate Mining on Federal Land

• document the practice of requiring financial assurances to cover the 

estimated full cost of reclamation in BLM’s official agency policy;

• work with the Chief of the Forest Service to develop a coordinated 

process for (1) proposing and evaluating lease terms and conditions 

for phosphate mines in southeastern Idaho, and (2) sharing 

information on the amount and adequacy of financial assurances to 

provide better coordination between federal agencies regarding 

phosphate mine oversight; and

• analyze BLM’s authorities for directing operators to enter into thirdparty contracting mechanisms. If BLM confirms that it has the 

authority, it should develop a policy document to ensure consistent 

implementation, including a requirement that BLM reach written 

agreement with operators regarding arrangements for third-party 

contracting. Should BLM determine that it does not have the authority 

to use such mechanisms—and should it wish to continue the 

practice—it should seek appropriate legislation for doing so.

In addition, we recommend that the Administrator of EPA ensure that the 

agency complete its plan to assess whether corporate guarantees are an 

adequate financial mechanism, including giving due consideration to the 

experience of EPA Region 10 and BLM in using such assurances. If EPA 

determines that corporate guarantees are not an appropriate form of 

financial assurance, then their use should be prohibited in the financial 

assurance regulations that the agency expects to promulgate for the 

mining industry.

We provided EPA and the Departments of Agriculture, Defense, and the 

Interior with a draft of this report for their review and comment. EPA, the 

Forest Service (responding on behalf of the Department of Agriculture), 

and Interior generally agreed with our findings and recommendations, and 

their written comments are reproduced in appendixes III, IV, and V 

respectively. Each of these agencies also provided technical comments 

which we incorporated as appropriate. The Department of Defense 

declined to provide comments.

While the Department of the Interior generally agreed with our findings 

and recommendations, it expressed concern that our discussion on 

BLM’s coordination with the Forest Service on leasing activities could be 

misleading. Interior noted that in some instances BLM does not accept 

the Forest Service’s recommended changes to existing phosphate leases 

Agency Comments 

and Our Evaluation
 

Page 48 GAO-12-505 Phosphate Mining on Federal Land

because of differences in professional judgment, not because of a lack of 

coordination. Furthermore, Interior noted that BLM and the Forest Service 

have been discussing the Forest Service’s proposed revisions to the 

standard lease terms and conditions for new leases to further protect the 

government from potential liability associated with selenium 

contamination, but that such discussions are necessarily detailed and 

time consuming, and the lack of agreement to date does not constitute a 

lack of coordination. In this context, the Forest Service also noted that it 

places great value on its collaborative relationship with BLM, and is 

committed to working with BLM to improve coordination and information 

sharing. We have made changes to the report to provide additional 

context and clarification regarding the agencies’ coordination efforts.

Nevertheless, while we acknowledge that BLM and the Forest Service 

have begun efforts to improve their coordination on these issues, we 

continue to believe that they would benefit from a clearer process for 

coordinating in a timely manner and elevating issues to the headquarters 

level when necessary.

As agreed with your offices, unless you publicly announce the contents of 

this report earlier, we plan no further distribution until 30 days from the 

report date. At that time, we will send copies to the Secretaries of 

Agriculture, Defense, and the Interior; the Administrator of the 

Environmental Protection Agency; the Chief of the Forest Service; the 

Assistant Secretary for Indian Affairs; the Directors of the Bureau of Land 

Management and Fish and Wildlife Service; appropriate congressional 

committees; and other interested parties. In addition, the report will be 

available at no charge on the GAO website at http://www.gao.gov. 

If you or your staffs have any questions about this report, please contact 

me at (202) 512-3841 or mittala@gao.gov. Contact points for our Offices of 

Congressional Relations and Public Affairs may be found on the last page 

of this report. Key contributors to this report are listed in appendix VI.

Anu K. Mittal

Director, Natural Resources

and Environment
Appendix I: Scope and Methodology

Page 49 GAO-12-505 Phosphate Mining on Federal Land

This appendix details the methods we used to examine the issues 

surrounding the oversight and cleanup of phosphate mines on federal 

lands. Specifically, we were asked to provide information on the (1) extent 

to which federal agencies’ oversight of phosphate operations has 

changed since the discovery of selenium contamination in Idaho in 1996, 

and whether those changes appear sufficient to help the agencies 

prevent future contamination; (2) actions that federal agencies and mine 

operators have taken to assess and remediate contamination from 

phosphate mining on federal land, amounts they have spent on these 

actions, and estimated remaining costs; and (3) types and amounts of 

financial assurances in place for phosphate mining operations and the 

extent to which these assurances are likely to cover future cleanup costs.

For all objectives, we focused our report on agencies’ and mine 

operators’ activities in Idaho for two primary reasons. First, phosphatemining operations on federal land are generally limited to the Western 

Phosphate Field, and all but one of these operations are located in Idaho.

Second, the occurrence of selenium contamination resulting from 

phosphate-mining operations on federal lands is currently limited to 

Idaho; such contamination has not been discovered in neighboring states 

containing portions of the Western Phosphate Field.

To address the first objective, we reviewed federal laws and regulations 

relevant to the federal agencies’ oversight of phosphate-mining 

operations on federal land in Idaho, including the National Environmental 

Policy Act (NEPA), the Mineral Leasing Act, the Clean Water Act, and the 

Endangered Species Act. In addition, we reviewed relevant agency 

documents and reports created both before and after 1996. These include 

Bureau of Land Management (BLM) and Forest Service land-use plans; 

BLM records of decision for new mine plans, and associated NEPA 

documents; BLM instructional memorandums; BLM lease and bond 

abstracts; and correspondence between BLM and the Forest Service 

regarding lease stipulations. We interviewed officials with the Bureau of 

Indian Affairs (BIA), BLM, the Fish and Wildlife Service (FWS), and the 

Office of Natural Resources Revenue within Interior; the Forest Service; 

the Environmental Protection Agency (EPA); the Army Corps of 

Engineers; and the Idaho Department of Environmental Quality (IDEQ). 

We also interviewed representatives of the three Idaho phosphate mine 

operators and visited the three phosphate mines operating as of June 

2011, and twelve of the sixteen mines where selenium contamination has 

been detected. To obtain additional perspectives beyond those offered by 

agency officials and mine operators, we also interviewed representatives 

from the Shoshone-Bannock Tribes, on whose reservation one of the 

Appendix I: Scope and Methodology
Appendix I: Scope and Methodology

Page 50 GAO-12-505 Phosphate Mining on Federal Land

largest phosphate mines is located, and from regionally-focused

environmental advocacy groups, including the Idaho Conservation 

League and the Greater Yellowstone Coalition.

To address the second objective, we interviewed officials from BIA, BLM, 

FWS, the Forest Service, EPA, IDEQ, the mine operators, and the 

Shoshone-Bannock Tribes, and reviewed documents and reports on the 

status of assessment and cleanup efforts and related settlement 

agreements under the Comprehensive Environmental Response, 

Compensation, and Liability Act (CERCLA). To determine the amount 

federal and state agencies have spent on these actions and the amount 

each agency received in reimbursement from mine operators, we 

obtained expenditure and collections data from each agency where 

available from fiscal year 2001 through fiscal year 2011. Specifically, for 

EPA, we collected data from EPA’s Superfund Cost Recovery Package 

Imaging and On-Line System, which included EPA’s expenditures at each 

mine, as well as information on funds received from mine operators. For 

BLM, we received data from BLM’s Management Information System for 

fiscal years 2001–2008 and from Interior’s Financial and Business 

Management System for fiscal years 2009–2011. Because BLM’s data 

from these systems applied to cleanup work at Idaho phosphate mines 

generally, we also collected mine-specific expenditure information where 

available, including from the cost documentation packages that BLM 

submitted to the mine operators for six mines as part of settlement 

agreements to which BLM was a party. We received information on funds 

BLM received from mine operators from Interior’s Federal Financial 

System. For the Forest Service, we received data from the Forest 

Service’s Foundation Financial Information System, which included the 

Forest Service’s expenditures at each mine and funds received from mine 

operators. For FWS, we collected data from cost documentation 

packages submitted to the mine operators for five mines and the 

areawide investigation where FWS was a party to a settlement 

agreement, and from the Federal Financial System for additional 

expenditures as well as funds received from mine operators. For BIA, 

officials estimated their annual expenditures based on records kept 

internally showing hours worked on cleanup at phosphate mines in Idaho.

For IDEQ, we received data from the department’s General Online 

Reporting System, which included IDEQ’s costs as well as funds received 

from mine operators.

To evaluate the reliability of these data and determine their limitations, we 

reviewed the data obtained from each agency’s system as well as the 

cost documentation packages generated by the agencies and sent to 
Appendix I: Scope and Methodology

Page 51 GAO-12-505 Phosphate Mining on Federal Land

mine operators. For each of these data sources, we analyzed related 

documentation, examined the data to identify obvious errors or 

inconsistencies, and compared the data we received with other published 

data sources, where possible. We also interviewed officials from each 

agency to obtain information on the internal controls of their data 

systems. On the basis of our evaluation of these sources, we concluded 

that the expenditure data we collected and analyzed were sufficiently 

reliable for our purposes.

For all agencies, at least some of the expenditures they reported included 

expenses paid to cover indirect costs associated with work performed by 

the agencies, which is in accordance with the terms of many of the 

settlement agreements. However, these indirect costs were not included 

in all of the expenditure data shared with us. Therefore, in order to report 

similar types of expenditures across agencies, we applied agency-specific 

historic annual indirect cost rates to those expenditures we received 

where it was not already included. In order to determine costs in constant 

2012 dollars, we adjusted the amounts reported to us for inflation by 

applying the fiscal year chain-weighted gross domestic product price 

index, with fiscal year 2012 as the base year.

To determine estimated remaining costs for future cleanup actions at the 

sites, we interviewed EPA, Forest Service, and BLM officials, and 

reviewed reports from phosphate mines where CERCLA removal actions 

have occurred or have been approved and mines with recently approved 

reclamation plans that include measures to prevent selenium 

contamination. EPA and Forest Service officials provided information 

regarding likely cost drivers for cleanup at phosphate mines, and, to 

provide context, EPA officials identified hardrock mines in the region with 

similar general characteristics where these cost drivers are expected to 

be applied.

To address the third objective, we first reviewed BLM, Forest Service, and 

EPA regulations; BLM and Forest Service manuals; and BLM 

memorandums to obtain agency financial assurance standards and 

procedures. We then obtained financial assurance data from records 

maintained by Idaho-based officials with BLM, the Forest Service, and 

EPA, which included data on bonds held by Idaho state agencies for 

operations on federal land. We also interviewed officials from these 

agencies to obtain insights into agency financial assurance practices and 

the extent to which current financial assurances are sufficient to cover 

future cleanup actions. We evaluated the reliability of BLM financial 

assurance data by interviewing BLM officials and corroborating the data 
Appendix I: Scope and Methodology

Page 52 GAO-12-505 Phosphate Mining on Federal Land

maintained by BLM officials in Idaho with data maintained in BLM’s 

centralized database, known as LR2000. We evaluated the reliability of 

Forest Service and EPA data by interviewing agency officials, examining 

agency records, and cross-checking these data to the bonds amounts 

listed in CERCLA settlement agreements. We determined that the 

financial assurance data from BLM, the Forest Service, and EPA were 

sufficiently reliable for the purpose of determining the types and amounts 

of financial assurances in place for phosphate mining operations in Idaho.

We conducted this performance audit from May 2011 through April 2012

in accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.
Appendix II: Information on 18 Phosphate 

Mines Overseen by Federal Agencies in 

Southeastern Idaho, and CERCLA Cleanup 

Expenditures

Page 53 GAO-12-505 Phosphate Mining on Federal Land

This appendix provides information on the acres disturbed, CERCLA lead 

agency, and surface land ownership at 18 phosphate mines in 

southeastern Idaho (table 3), and the agency assessment and cleanup 

expenditures at the 16 of those mines with selenium contamination 

(table 4).

Table 3: Acres Disturbed, CERCLA Lead Agency, and Surface Land Ownership at 18 Phosphate Mines in Southeastern Idaho

Surface Land Ownership

Mine Acres disturbeda CERCLA lead 

agency BLM

Forest 

Service Tribal State Private 

Ballard 640 EPA • • Blackfoot Bridgeb 90 • • Champ 390 Forest Service • Conda 1,510 EPA • • Diamond Gulch 30 Forest Service • Dry Valley 340 IDEQ • • Dry Valley, South Extensionb 540 • • • • Enoch Valley 580 EPA • • Gay 4,740 EPA • Georgetown Canyon 250 IDEQ • • Henry 1,070 EPA • • • Mountain Fuel 720 Forest Service • North Maybe 600 Forest Service • • Rasmussen Ridgeb 760 • • Smoky Canyon 2,510 Forest Service • • South Maybe Canyon 600 Forest Service • South Rasmussenb 390 • • Wooley Valley 810 Forest Service • • •

Source: BLM, Forest Service, and IDEQ.

a

Acres disturbed represent estimates as of December 31, 2011, and include all acreages that have 

also been reclaimed. 

b

This is an active mine that is not being assessed under CERCLA. 

Appendix II: Information on 18 Phosphate Mines 

Overseen by Federal Agencies in Southeastern 

Idaho, and CERCLA Cleanup Expenditures
Appendix II: Information on 18 Phosphate 

Mines Overseen by Federal Agencies in 

Southeastern Idaho, and CERCLA Cleanup 

Expenditures

Page 54 GAO-12-505 Phosphate Mining on Federal Land

Table 4: Assessment and Cleanup Expenditures at the 16 Contaminated Phosphate Mines in Southeastern Idaho, from Fiscal 

Years 2001 through 2011

Dollars in thousands (2012 constant dollars). 

Source: GAO analysis of agency data.

Notes: Numbers may not total because of rounding. 

a

Expenditures and reimbursements include agency-specific administrative, or indirect, costs. 

b

In some cases, mine operators have contributed additional amounts that the agencies expect to use 

to defray future costs. Because the agencies have not yet expended these amounts, this table does 

not reflect these amounts. 

c

Expenditures for these mines were reported as combined by one or more agencies. 

d

Project management includes activities that spanned multiple mines—for example, planning and 

consulting over the overall cleanup process in the area. For BLM, this category also includes all minespecific work that was not covered by a cost recovery agreement with a mine operator. 

Mine FS IDEQ EPA BLM BIA FWS

Total agency 

expendituresa

Total 

reimbursed by 

mine operatorsb

Ballard/ Enoch 

Valley/ Henryc $377 $405 $1,496 $11 $0 $20 $2,310 $1,806

North Maybe 1,735 88 85 80 0 32 2,019 1,671

Smoky Canyon 1,263 168 335 39 0 57 1,862 1,094

Conda 0 427 902 65 0 37 1,432 1,321

Gay 0 0 224 37 380 10 650 179

South Maybe 

Canyon

336 3 0 13 0 0 352 113

Wooley Valley/ 

Diamond Gulchc 172 37 1 0 0 0 210 0 

Rasmussen Ridge 85 0 0 77 0 0 162 0 

Champ/ Mountain 

Fuelc 122 1 0 7 0 0 131 8 

South Rasmussen 0 40 0 0 0 0 40 0 

Georgetown 

Canyon

2 15 0 0 0 0 18 0 

Dry Valley 4 0 0 0 0 0 4 0 

Activity 

Project 

managementd 4,410 0 319 2,178 0 0 6,908 0 

Areawide 

investigation

0 2,630 0 0 551 38 3,179 2,349

Total agency 

expenditures

$8,506 $3,815 $3,362 $2,507 $891 $195 $19,276 - 

Total reimbursed 

by mine operators

$2,166 $3,388 $2,693 $143 $0 $152 - $8,542
Appendix III: Comments from EPA

Page 55 GAO-12-505 Phosphate Mining on Federal Land

Appendix III: Comments from EPA
Appendix III: Comments from EPA

Page 56 GAO-12-505 Phosphate Mining on Federal Land
Appendix IV: Comments from the Department 

of Agriculture

Page 57 GAO-12-505 Phosphate Mining on Federal Land

Appendix IV: Comments from the 

Department of Agriculture
Appendix V: Comments from the Department 

of the Interior

Page 58 GAO-12-505 Phosphate Mining on Federal Land

Appendix V: Comments from the Department 

of the Interior
Appendix V: Comments from the Department 

of the Interior 

Page 59 GAO-12-505 Phosphate Mining on Federal Land
Appendix V: Comments from the Department 

of the Interior

Page 60 GAO-12-505 Phosphate Mining on Federal Land
Appendix VI: GAO Contact and Staff 

Acknowledgments

Page 61 GAO-12-505 Phosphate Mining on Federal Land

Anu K. Mittal, (202) 512-3841 or mittala@gao.gov

In addition to the contact named above, Steve Gaty (Assistant Director), 

Andrea Wamstad Brown, Casey L. Brown, Antoinette Capaccio, Leslie K. 

Pollock, Rebecca Shea, Carol Herrnstadt Shulman, and Rajneesh Verma 

made key contributions to this report.

Appendix VI: GAO Contact and Staff 

Acknowledgments 

GAO Contact

Acknowledgments

(361277)
The Government Accountability Office, the audit, evaluation, and 

investigative arm of Congress, exists to support Congress in meeting its 

constitutional responsibilities and to help improve the performance and 

accountability of the federal government for the American people. GAO 

examines the use of public funds; evaluates federal programs and 

policies; and provides analyses, recommendations, and other assistance 

to help Congress make informed oversight, policy, and funding decisions. 

GAO’s commitment to good government is reflected in its core values of 

accountability, integrity, and reliability.

The fastest and easiest way to obtain copies of GAO documents at no 

cost is through GAO’s website (www.gao.gov). Each weekday afternoon, 

GAO posts on its website newly released reports, testimony, and 

correspondence. To have GAO e-mail you a list of newly posted products, 

go to www.gao.gov and select “E-mail Updates.”

The price of each GAO publication reflects GAO’s actual cost of 

production and distribution and depends on the number of pages in the 

publication and whether the publication is printed in color or black and 

white. Pricing and ordering information is posted on GAO’s website, 

http://www.gao.gov/ordering.htm. 

Place orders by calling (202) 512-6000, toll free (866) 801-7077, or 

TDD (202) 512-2537. 

Orders may be paid for using American Express, Discover Card, 

MasterCard, Visa, check, or money order. Call for additional information.

Connect with GAO on Facebook, Flickr, Twitter, and YouTube. 

Subscribe to our RSS Feeds or E-mail Updates. Listen to our Podcasts. 

Visit GAO on the web at www.gao.gov. 

Contact:

Website: www.gao.gov/fraudnet/fraudnet.htm

E-mail: fraudnet@gao.gov

Automated answering system: (800) 424-5454 or (202) 512-7470

Katherine Siggerud, Managing Director, siggerudk@gao.gov, (202) 512-

4400, U.S. Government Accountability Office, 441 G Street NW, Room 

7125, Washington, DC 20548

Chuck Young, Managing Director, youngc1@gao.gov, (202) 512-4800

U.S. Government Accountability Office, 441 G Street NW, Room 7149 

Washington, DC 20548

GAO’s Mission

Obtaining Copies of 

GAO Reports and 

Testimony

Order by Phone

Connect with GAO

To Report Fraud, 

Waste, and Abuse in 

Federal Programs

Congressional 

Relations

Public Affairs

Please Print on Recycled Paper.