Plaintiffs argue selenium could harm water quality

By MATEUSZ PERKOWSKI

Capital Press

Environmentalists have asked a federal appeals court to overturn a decision allowing the expansion of an Idaho phosphate mine owned by the J.R. Simplot Co.

The plaintiffs -- Greater Yellowstone Coalition, Natural Resources Defense Council, Sierra Club and Defenders of Wildlife -- claim the mine expansion will cause the mineral selenium to infiltrate creeks and rivers.

"Selenium poisoning is killing fish and polluting water, and we ask the court to correct that problem," said Timothy Preso, attorney for the plaintiffs, during oral arguments before the 9th U.S. Circuit Court of Appeals.

The mine, located in Idaho's Caribou-Targhee National Forest, provides the J.R. Simplot agribusiness company with raw phosphate ore for fertilizer production.

The company has leased the Smoky Canyon Mine site from the federal government since the early 1980s and needed to expand its footprint to avoid running out of phosphate ore in 2010.

The U.S. Forest Service and Bureau of Land Management authorized the expansion in 2008, as long as selenium-containing dirt and rock debris were covered by various materials to prevent the mineral from seeping into water.

Plaintiffs sued to stop the project but ultimately lost the case in 2009, when a federal judge said he had to defer to the federal agencies' expertise in analyzing the project's effects.

That ruling has been appealed to the 9th U.S. Circuit Court of Appeals, with plaintiffs claiming the federal agencies improperly relied on the opinion of a J.R. Simplot contractor regarding existing sources of pollution at the mine.

Remediation of other pollution sources was supposed to offset possible selenium discharge from the mine expansion, but plaintiffs allege the government underestimated the total amount of mineral seeping from the site.

"It was not rationally determined because they relied on one view of the available evidence, which they themselves recognized was questionable," said Preso.

Plaintiffs are not just nit-picking the agencies' environmental review of the project, he said.

Many other phosphate mines in the region have been found to contaminate surface water and were later subject to environmental cleanups, said Preso.

"This is not a hypothetical concern. The question is, are we headed for another one?" he said. "There is nothing in this analysis that gives the court any assurance that we are not."

Justin Pidot, an attorney for the government, said the federal agencies were confronted with the difficult problem of protecting the environment while respecting J.R. Simplot's "vested rights" to extract phosphate from the mine.

According to the federal agencies, J.R. Simplot didn't have to obtain a pollutant discharge permit under the Clean Water Act to expand the mine.

There's not a "direct hydrological connection" between groundwater absorbed at the site and surface waters in the region, since it would take decades for the water to pass through hundreds of feet of bedrock before reaching streams, the government said.

"This is a reasonable way for the agency to proceed in the face of a very difficult analytic challenge," said Pidot. "This is something the court should defer to. This is an agency exercising its expertise to try to answer a question."

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