Bloomberg Law
May 4, 2021, 8:00 AM

Fertilizer Waste Crisis Needs Fixing: What the EPA, Congress Can Do

Jaclyn Lopez
Jaclyn Lopez
Center for Biological Diversity

The near collapse of a radioactive, toxic phosphogypsum stack at Piney Point that discharged hundreds of millions of gallons of wastewater into Tampa Bay exposed one of Florida’s dirtiest secrets.

Phosphogypsum is the radioactive waste from creating phosphoric acid, predominantly used in fertilizer. In addition to radioactive materials, phosphogypsum can also contain sulfur, arsenic, barium, cadmium, chromium, copper, fluoride, lead, and zinc. It is stored in mountainous stacks often hundreds of acres wide and hundreds of feet tall.

More than 1 billion tons of phosphogypsum is stored in 25 stacks scattered throughout Florida, and there are more than 70 phosphogypsum stacks in Arkansas, Idaho, Illinois, Iowa, Louisiana, Mississippi, Missouri, North Carolina, Texas, Utah, and Wyoming.

While Piney Point had a particularly well-documented and long history of regulatory failures, it is by no means an anomaly. Leaks, seeps, and discharges from phosphogypsum stacks across the U.S. have caused groundwater contamination and numerous sinkholes. And these incidents, many of which are in Black, Indigenous, and Latino (BIPOC) and/or low-wealth communities, show no sign of slowing despite the well-documented harm.

In 2019 authorities were alerted that the Louisiana’s Uncle Sam phosphogypsum stack was moving laterally and in danger of collapsing. In 2017, the Environmental Protection Agency designated the Mississippi Phosphates Corp.'s phosphogypsum stack a Superfund site. In 2016, a sinkhole in the New Wales phosphogypsum stack released 215 million gallons of process wastewater into the Floridan aquifer in Florida. In 2015, the EPA reached a $2 billion settlement with Mosaic Fertilizer LLC for commingling 60 billion pounds of hazardous waste in Florida and Louisiana.

How Is Phosphogypsum Not Regulated as Hazardous Waste?

Congress passed the Resource Conservation and Recovery Act (RCRA) in 1976 to address increasing problems associated with the growing volume of industrial waste. The RCRA’s goals are to reduce the generation of solid waste, ensure that waste is managed in an environmentally sound manner, and to protect human health and the environment.

To achieve these goals, RCRA established a solid waste program that encourages states to develop plans to manage nonhazardous waste and prohibits the open dumping of solid waste. It also established a hazardous waste program, a “cradle to grave” system for controlling hazardous waste from the time it is generated until its final disposal.

However, in 1980, the Bevill Amendment to RCRA suspended the EPA’s authority to regulate phosphogypsum and process wastewater as hazardous until the completion of a study on the adverse human health and environmental effects.

A decade later, the EPA completed its study and found widespread groundwater contamination at phosphogypsum stacks, including contaminated off-site wells, the potential for drinking water source exposures, impacts to ground and surface waters, increased air pathway cancer risk for those living near stacks, and varied and inadequate state regulation. The report also found an increased hazard and contaminate release potential should the industry expand in the absence of hazardous waste regulation.

Nevertheless, citing the costs to the industry of complying with the hazardous waste program, the EPA decided the following year to exempt phosphogypsum and process wastewater from hazardous waste regulation.

What Can the EPA Do?

In February a coalition of 17 conservation and public health organizations petitioned the EPA for rulemaking pursuant to the RCRA and Toxic Substances Control Act (TSCA) concerning the regulation of phosphogypsum and process wastewater.

The administrative petition asks the EPA to issue a rule reversing its 1991 decision to exempt phosphogypsum and process wastewater from hazardous waste regulation, and to promulgate regulations governing its safe treatment, storage and disposal as hazardous wastes.

It also asks the EPA to initiate the process for designating phosphogypsum and process wastewater as high priority substances for risk evaluation under TSCA and to issue a testing rule requiring phosphogypsum and process wastewater manufacturers to develop information with respect to health and environmental effects.

The final ask in the petition relates to the Trump administration’s approval of the use of phosphogypsum in road construction, which reverses a decades-old determination that phosphogypsum in roads presents an unreasonable risk to human health. This decision, if it is not reversed by the Biden administration or held unlawful by the D.C. Circuit where it is being litigated, will have long-lasting impacts to public health, clean air and water and biodiversity.

In the meantime, the petition asks the EPA to make a determination under TSCA that the use of phosphogypsum in road construction is a significant new use warranting review.

What Can Congress Do?

Congress could, of course, reverse the Bevill Amendment, or more narrowly amend the RCRA to require the EPA to treat phosphogypsum and process wastewater as hazardous waste. Short of that, it could hold a congressional hearing to investigate the regulatory framework of the phosphate industry and the failure to ensure protection of human health and the environment.

Congress should also identify areas where it can provide additional resources to help the EPA quickly and comprehensively address this problem.

For too long, the phosphate industry has been exempted from accepting responsibility for preventing and cleaning up its ever-expanding toxic crisis. Federal regulators and elected officials must end this toxic nightmare now or shoulder full responsibility for the potentially catastrophic events that lie ahead.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Jaclyn Lopez, Florida director at the Center for Biological Diversity, is an environmental and land-use lawyer who litigates in the Southeast. She focuses on protecting imperiled species and ecosystems, and has presented, written, and taught courses on environmental law and policy.

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