Superfund/CERCLA Path Forward

EPA Administrative Settlement Agreement for Remedial Investigation and Feasibility Study

On August 22, 2008, the U.S. Environmental Protection Agency (EPA) sent FMC and Simplot a General Notice of Liability and Special Notice Letter for the Gay Mine site. EPA proposed to enter into negotiations with the companies for a consent order under which the companies would conduct a Remedial Investigation and Feasibility Study (RI/FS) at the Gay Mine site under CERCLA. The companies responded to EPA by indicating their willingness to enter into these negotiations.

On November 20, 2008, the companies submitted to EPA their joint good faith offer to enter into settlement negotiations for an RI/FS consent order. In their good faith offer, the companies described their technical and financial capabilities to perform the RI/FS work and indicated their willingness to proceed under an agreed order. The companies also raised concerns regarding EPA’s proposed consent order that provided an RI/FS oversight role to the Shoshone-Bannock Tribes and the U.S. Department of the Interior, both of which exercised control over Gay Mine operations and which, in the companies’ view, have CERCLA liability regarding the site.

In early 2009, EPA responded to the companies’ good faith offer and identified certain threshold issues related to support agency designation and costs that needed further discussion and analysis. The companies indicated a willingness to engage in those discussions. However, there were no further negotiations during 2009 regarding an RI/FS consent order.

In July 2010, the companies and EPA resumed negotiations on a consent order. These discussions were successful and resulted in an Administrative Settlement Agreement (ASA) under which the companies agreed to conduct an RI/FS at the Gay Mine site. The ASA had an effective date of December 10, 2010. The ASA also was signed by BIA and the Tribes, to provide them a role in reviewing and commenting on the RI/FS and also, because the companies do not own the mine site, to facilitate company access to the site to conduct the work.

In August 2012, the companies submitted a Project Scoping Report that consisted of assembling existing data on the site and conducting an initial site visit which included FMC, Simplot, EPA, and the Tribes. In August 2013, FMC and Simplot submitted a Project Planning Report that utilized information gathered in the Project Scoping Report and further refined the tasks and scope of the remedial investigation.   Later in 2013, the companies submitted the draft Remedial Investigation Work Plan (RI Work Plan) for EPA review. In the fall of 2014, the companies completed initial field survey work in support of completing the RI Work Plan. Field work to gather data as part of the remedial investigation has been conducted in 2015, 2016 and 2017 during the summer months when conditions allow.

The Tribes and federal agencies have not allowed FMC and Simplot to proceed with remedial work at the primary areas of concern—the “pit lakes” that collect rainwater and snowmelt, along with selenium and metals from the mined area. FMC and Simplot offered 20 years ago to fill in the pits and eliminate the lakes to prevent further contamination and any potential exposure to pit lake water. But the Tribes and federal agencies refused to accept FMC and Simplot’s proposed work.

We are hopeful that the remedial investigation process that Simplot and FMC have now started at Gay Mine will allow the companies to expeditiously address that site in much the same manner as the environmental work that is being done at other phosphate mines in Southeast Idaho.