Lawsuit Over EPA's Oversight on Phosphate Mining Waste

Lawsuit Launched Over EPA’s Oversight Failure on Dangerous Phosphate Mining Waste

By: Waterkeeper Alliance

Photo credit: Shutterstock | agsaz

Conservation, public health, and environmental justice organizations notified the Environmental Protection Agency today of their intent to sue the agency for failing to respond to a rulemaking petition requesting stronger oversight and regulation of toxic and radioactive waste from phosphate mining and fertilizer production.

The notice comes three years after the groups petitioned the agency to strengthen protections for people’s health and the environment.

“The EPA has known for decades that irresponsibly disposing of radioactive and carcinogenic phosphate mining waste is a ticking time bomb but has inexplicably waited three years to respond to our petition for the waste to be listed as hazardous,” said Daniel E. Estrin, general counsel and legal director for Waterkeeper Alliance. “As if on cue, just weeks after we filed our petition, disaster struck at Piney Point, leading to an unprecedented discharge of contaminated wastewater into Tampa Bay, and yet still we wait. We are left with little choice but to file this lawsuit to enforce the EPA’s duty to protect people and wildlife from the next foreseeable disaster.”

In February 2021, 17 organizations petitioned the EPA to better regulate phosphogypsum and process wastewater under the Resource Conservation and Recovery Act. The two radioactive, toxic wastes are created during the fertilizer production process, transforming destructively mined phosphate rock into phosphoric acid.

The wastes are currently exempt from hazardous waste regulations to protect the phosphate industry from the cost of compliance. Yet Florida’s largest phosphate manufacturer, the Mosaic Co., reported a net income of $3.6 billion in 2022 alone. The groups’ petition asked the EPA to revisit its 1991 decision exempting phosphoric acid production wastes from federal hazardous waste regulations so the agency can properly oversee the safe treatment, storage, and disposal of phosphogypsum and process wastewater.

Weak, primarily state oversight of these wastes has produced environmental disasters across the country. The 2021 Piney Point discharge into Tampa Bay fueled a deadly red tide that killed more than 1,600 tons of marine life, including tens of thousands of fish.

“Floridians have seen firsthand the destruction caused by the radioactive waste of the phosphate industry,” said Justin Tramble, vice chair of Waterkeepers Florida and executive director of Tampa Bay Waterkeeper. “How many disasters does it take? Phosphogypsum poses a threat to human health, our environment and our economy. The health of our water in Florida is absolutely connected to the sustainability and vitality of our diverse communities. It’s time for the EPA to take action to protect us from the next environmental disaster.”

Mosaic’s New Wales plant in Mulberry, Florida, has experienced at least four major sinkholes, including one in 2016 that dumped more than 200 million gallons of process wastewater and an unknown amount of radioactive phosphogypsum into the Floridan aquifer. That toxic plume remains, and the ultimate fate and transport of the waste is unknown, according to an independent study.

Radium-226, found in phosphogypsum, has a 1,600-year radioactive decay half-life. In addition to high concentrations of radioactive materials, phosphogypsum and process wastewater can also contain carcinogens and heavy toxic metals like antimony, arsenic, barium, cadmium, chromium, copper, fluoride, lead, mercury, nickel, silver, sulfur, thallium, and zinc.

“Major spills of this highly acidic waste happened in Houston in 1999 and 2007, shutting down the Houston Ship Channel,” said Kristen Schlemmer, legal director of Bayou City Waterkeeper. “Each spill was a missed opportunity for the EPA to act and avoid another disaster, like what we’ve watched unfold with Piney Point in Florida. With our lawsuit, we’re telling the EPA that we’re done with waiting and need regulation that reflects the serious impacts phosphogypsum has had on communities and ecosystems in Houston and across the United States.”

Learn more about phosphogypsum and efforts to protect public health and the environment from its harms.

The groups filing today’s legal challenge include People for Protecting Peace River, Portneuf Resource Council, Rise St. James, Sierra Club, Waterkeeper Alliance, Waterkeepers Florida, Bayou City Waterkeeper, Our Santa Fe River, Healthy Gulf, ManaSota-88, and the Center for Biological Diversity. They are represented by the Center for Biological Diversity and the Jacobs Public Interest Law Clinic for Democracy and the Environment at Stetson University College of Law.

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“It’s time for the EPA to take aggressive steps to stop the ongoing environmental injustices and destruction caused by the phosphate industry’s waste,” said Ragan Whitlock, a Florida-based attorney at the Center for Biological Diversity. “It’s been nearly three years since the state dumped 215 million gallons of toxic, radioactive waste from the Piney Point facility into Tampa Bay, but the EPA has done absolutely nothing to prevent the next phosphate pollution disaster.” 

“Once again, we’re relying on the EPA to establish stringent regulations and demand improved technologies for waste management,” said Sharon Lavigne, founder and director of RISE St. James. “Here in Cancer Alley, we’ve experienced firsthand the challenges of residing near Mosaic. Phosphate mining waste has the potential to completely degrade the natural environment — the land, the air, the water and the soil. The radiation hazards aren’t just a concern for the workers; they also affect neighboring communities. We deserve so much better.”

“Phosphogypsum waste sits stacked in Florida and around the U.S. without any solution for its ultimate fate,” said Brooks Armstrong, president of People for Protecting Peace River. “Piled 300 feet or more, these huge stacks have had multiple failures, releasing their highly toxic and radioactive liquids into our Floridan aquifer. People for Protecting Peace River live in areas where this mining waste originates, the strip mines of Bone Valley, and we see the end waste causing harm to us and our neighbors.”

“The phosphate mining industry is an industry of cradle-to-grave pollution,” said Glenn Compton, chairman of Manasota-88. “The cradle is phosphate mining and the grave is the radioactive phosphogypsum waste dumped into gypstacks. The abandoned Piney Point gypstacks clearly demonstrate that not enough is being done to safeguard the public or the environment from the devastating impacts that the phosphate industry is having on Florida.”

“Arsenic, selenium, phosphate, radionuclides and other toxic metals have leached out of phosphogypsum stacks and phosphate mining wastes across southeast Idaho from Pocatello east to the Wyoming border. They’re contaminating groundwater, surface, water, soil and vegetation, as well as wildlife resources and domestic stock,” said Shannon Ansley, clean water director for the Portneuf Resource Council in Pocatello. “These facilities, their current waste production and their legacy wastes continue to contaminate the surrounding environment and endanger the health of those working and living near the site.”

“Our waterways are under siege from the phosphate industry,” said Joanne Tremblay, president of Our Santa Fe River. “Florida’s aquifer and waters are choked with algae. Tourism, wildlife and our health are impacted by this unregulated industry. Florida desperately needs much stronger oversight of the phosphate industry by the EPA because it is obvious that both the Florida Department of Environmental Protection and the industry itself are incapable of protecting the aquifer and the Gulf of Mexico from irreparable damage.”

“Around the Gulf, we feel the effects of the phosphate mining industry. For too long it’s always been nearby communities and local waterways that bear the brunt of degradation and damage of the industry, while companies like Mosaic skirt responsibility and rake in profits,” said Martha Collins, executive director at Healthy Gulf. “We at Healthy Gulf continue to call on EPA to ensure proper oversight and protections with new rulemaking that fulfills the agency’s duty to our environment and our people.”