On Sept. 2 Agrium Inc. subsidiaries Nu-West Mining Inc. and Nu-West Industries Inc. filed suit against the federal government in U.S. District Court in Idaho to recover past and future selenium cleanup costs at four Dry Valley phosphate mine sites in Southeast Idaho’s Caribou County.
Nu-West now operates the Dry Valley and North Rasmussen Ridge mines north and east of Soda Springs, as well as the nearby Conda phosphate fertilizer plant, employing about 425 employees and contractors. The U.S. Department of the Interior, Bureau of Land Management, U.S. Geological Survey, the U.S. Department of Agriculture, and U.S. Forest Service are listed as defendants in the case.
The Nu-West companies said they filed the civil action to recover costs incurred with the remediation of the South Maybe Canyon Mine, the North Maybe Mine, the Champ Mine and extension, and the Mountain Fuel Mine pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), or what is commonly known as the Superfund Act. The mines are about 15 miles east of Soda Springs.
“Plaintiffs have spent over $10 million to date on remediation activities at the mine sites, while the United States has contributed nothing,” Nu-West states, asserting the U.S. also has refused to spend or release $15 million it was awarded in a 2004 Washington Group International bankruptcy case for remediating mine sites. Instead, it “improperly spent” the money on employee seminars, salaries, and other unrelated expenses, the suit says.
Nu-West estimates tons removed from each mine and royalty payments made are as follows: South Maybe Canyon Mine, 9.97 million tons, $4.5 million; North Maybe Mine, 14.96 million tons, $6.75 million; Champ Mine, 8.3 million tons, $3.75 million; and Mountain Fuel Mine, 10.45 million tons, $4.75 million.
Nu-West said “multiple legal actions may result” if the court does not set forth rights, duties, and obligations with respect to past and future incurred costs. It concludes the suit by stating it requests judgment in the amount of past response costs incurred at each of the mine sites, plus interest through the date of judgment; a declaratory judgment declaring the U.S. liable for future incurred response costs, plus interest; and attorneys’ fees and costs.
Middle waste shale was excavated at the mine sites, releasing selenium into the environment. In large doses, selenium can be toxic to livestock and wildlife. In 1950, the U.S. government began leasing the properties to various phosphate mining concerns. “Since that time, the United States has earned millions of dollars in rents and royalties from the phosphate extracted from the mine sites,” the lawsuit states.
U.S. involvement included managing and directing waste disposal operations throughout active mining and reclamation periods at the sites. “For at least some of the mine sites, the United States also designed and ordered particular waste disposal methods over the protest of the historic mine operators,” the suit says, citing directives to stockpile shale on the exterior of waste rock dumps and promote revegetation of mine sites.
At two of the four mine sites, federal officials directed that massive “cross valley fill” dumps of waste rock and overburden be installed to cover stream beds, it adds.
“Plaintiffs had no idea there was any environmental contamination problem at the mine sites until 1996. That fall, six horses confined in a small pasture downstream from the South Maybe Canyon Mine site were diagnosed with selenosis – a disorder caused by elevated levels of selenium. Five of the horses were euthanized,” the lawsuit states.
Nu-West alleges the U.S. government refused to assist or reimburse the affected rancher. Instead, Nu-West bought new property to relocate the rancher and his livestock operation at its own expense.
In February 1997, Nu-West discovered the U.S. had conducted a secret water quality study in the vicinity of the mine sites from 1989 to 1993 without notifying the public or lessees. The study showed elevated levels of selenium downstream from the South Maybe Canyon Mine. In 1997, plaintiffs said they also learned that middle waste shale used as a surface covering during mine reclamation was the primary source of selenium contamination.
The U.S. omitted selenium data from 1991 and 1995 water quality studies, Nu-West says, charging that two soil scientists warned in the early 1990s that leaching of hazardous substances from waste rock at the mine sites could cause severe environmental problems.
“Since 1997, plaintiffs have worked diligently to investigate and remediate the mine sites. The United States, however, has not cooperated in any fashion. Although the United States is the landowner and the party most responsible for the selenium contamination at the mine sites, the United States chose to oversee the cleanup of the mine sites itself and has demanded that plaintiffs conduct the remediation at their own expense,” the suit states.
U.S. oversight of company efforts to remediate the mine sites has been “incompetent, inefficient and irresponsible.” The lawsuit also contends the U.S. has delayed remediation by refusing to review required submissions, violating binding agreements, and missing its own deadlines.
“As a direct result of the United States’ heavy-handed and incompetent oversight of the remediation and its intransigence in refusing to contribute to the cost of the remediation, very little progress has been made toward the actual cleanup of the mine sites over the last 12 years. Selenium levels remain elevated in the vicinity of the mine sites, and selenium continues to leach into the environment at some of the sites,” the lawsuit states.
The lawsuit accuses the U.S. government of impeding reasonable efforts to clean up the mine sites, continuing to deny responsibility for contaminating them and refusing to contribute toward remediating costs. “Plaintiffs have been willing and ready to remediate the mine sites for over a decade. The United States has given the plaintiffs no choice but to file this lawsuit.”