Idaho mining industry officials believe a new state law governing construction of massive piles of waste rock from phosphate mining will clarify and strengthen safeguards aimed at protecting the environment.
Members of a Pocatello-based grassroots conservation organization, however, fear the law puts the community and its groundwater at greater risk, removing Idaho Department of Environmental Quality oversight and eliminating groundwater monitoring requirements for new stacks of the waste rock, known as phosphogypsum.
HB 239, which spells out standards for the construction of new phosphogypsum stacks, was signed into law by Gov. Brad Little on April 19. An example of a phosphogypsum stack in the Pocatello area is the massive pile of gray material behind the J.R. Simplot Don Plant. The law could also affect the Soda Springs operations of the mining company Itafos.
“It really marks for the first time that Idaho has had detailed design and construction standards for gyp-stacks,” Simplot spokesman Josh Jordan said of the new law. “This way there’s some agreement with EPA recommendations and industry best practices. In avoiding the case-by-case determinations, you assure there can be a thoughtful and lengthy process in establishing a standard that is still agreed to by people who need to be part of those discussions.”
Simplot has a land exchange pending, seeking to give the federal government important wildlife habitat in the Blackrock area south of the city in exchange for public land adjacent to the plant to accommodate construction of its next gyp-stack. The BLM has already approved the exchange, but it’s been challenged in federal court by the Shoshone-Bannock Tribes.
In 2020, industry officials, DEQ experts, officials with the Shoshone-Bannock Tribes and others participated in a negotiated rule-making process to establish clear standards for new stacks. Critics of the new law argue it essentially repealed and replaced adequate standards established in 2020 with weaker language.
Proponents of the new gyp-stack law point out that its standards incorporate concepts from a settlement reached between the federal Environmental Protection Agency and the operators of a gyp-stack in Wyoming.
“We wouldn’t view it as something that repealed that (2020) law. It builds upon that legislation and creates more detailed design standards,” Jordan said. “It provides more detail on what those standards are. Those are based on DEQ requirements and other industry best practices.”
Nonetheless, Doug Paddock, an organizer with the Idaho Organization of Resource Councils, worries that the law removes DEQ oversight, and having rigid standards could come at the expense of flexibility as new science becomes available.
“They are trying to create consistency throughout their operations on a regional and national level, which is totally understandable, but taking DEQ out of the equation I think is shortsighted and I don’t think is the right approach,” Paddock said. “We need to have that expertise and oversight.”
Shannon Ansley, policy advisor to the IORC’s Bannock County affiliate, the Portneuf Resource Council, is especially concerned by the removal of language pertaining to groundwater monitoring plans for new gyp-stacks. The language was stricken from the bill during the markup process based on industry concerns. The mining industry contended the new law pertained only to construction, and monitoring requirements would more appropriately be included in a separate bill.
Ansley has worked as a hydrogeologist for both the Idaho National Laboratory and the Idaho DEQ, where she was involved in management of Superfund sites, such as the Simplot Don Plant. She emphasized that phosphogypsum is radioactive waste that can also contain arsenic, mercury and a long list of other heavy metals.
“It removes DEQ oversight from the process and it removes groundwater monitoring requirements over the new gyp-stacks,” Ansley said of the law, which she believes was passed under the public’s radar. “That is not acceptable because we know gyp-stacks if they leak it will affect the groundwater.”
Ansley referenced the recent failure of a Florida gyp-stack, resulting in pollutants entering Tampa Bay, that made national news. Furthermore, she said far too much pollution from the existing Simplot gyp-stack has already made its way into the Portneuf River system.
“That’s why it’s a Superfund site,” she said.
Ansley noted the proposed location of Simplot’s future gyp-stack has been moved based on concerns from the Shoshone-Bannock Tribes that the initial site would threaten cultural resources. The new proposed location east of the current gyp-stack is highly visible and directly above the Portneuf River Watershed, Ansley said.
Ben Davenport, executive director of the Idaho Mining Association, vows separate legislation establishing water monitoring requirements for new gyp-stacks will be submitted and approved long before the state entertains a request from a company to build a new gyp-stack.
In the event that a gyp-stack were to be approved prior to the enactment of new water monitoring standards, officials with the DEQ say they would explore regulatory options involving other existing laws.
By clearly defining expectations of mining companies, Davenport believes the state has taken a step toward ensuring there’s a stable domestic supply of fertilizer.
“When we talk about fertilizer and usage, Idaho is a major producer in North America,” Davenport said. “It’s important to our agricultural industry to have access to a supply chain of phosphate and phosphoric acid and phosphate fertilizers to continue to produce economically.”
Jordan emphasized that Simplot employees also live in the community, and the company has a stake in protecting the environment. He believes the new law will make applications more efficient by alerting the company well in advance of construction standards. Furthermore, he said the plan outlines best practices supported by several parties and regulators.
“Moving forward it helps us better understand what are the expectations we have as a responsible industry player to make sure we are meeting all of the standards for storing gypsum,” Jordan said.
Floor sponsors of the bill were Rep. Marc Gibbs, R-Grace, and Sen. Mark Harris, R-Soda Springs.