Florida groups warn of lawsuit against EPA over phosphate waste

By Jim Saunders ©2024 The News Service of Florida, with additional reporting by WMNF’s Kerilyn Kwiatkowski and Seán Kinane

TALLAHASSEE — A coalition of groups Tuesday moved toward filing a lawsuit against the U.S. Environmental Protection Agency over the regulation of phosphate-industry waste that the groups say poses environmental and health dangers.

The groups, such as the Center for Biological Diversity, the Sierra Club and Waterkeepers Florida, submitted a formal notice that they plan to file a lawsuit in 60 days if the EPA doesn’t act on a 2021 petition seeking regulations on phosphogypsum waste.

One of the attorneys for the coalition is Jaclyn Lopez, the director of the Jacobs Public Interest Law Clinic for Democracy and the Environment at Stetson University College of Law in Gulfport.

“The action that we filed today is seeking to compel the Environmental Protection Agency to respond to a petition that was submitted over three years ago, asking it to better regulate this waste, which is called phosphogypsum. And so for every one ton of product, it creates five tons of this waste,” Lopez told WMNF.

Phosphogypsum waste is piled in what are known as “gyp stacks” in certain areas of Florida. The sites also include large amounts of contaminated wastewater.

“Right now, each state has been delegated the responsibility for managing their waste. So if phosphogypsum were regulated by the Environmental Protection Agency, which is the way that all other hazardous waste is regulated — it’s regulated at a federal level. And the reason Congress requires that of all other types of hazardous waste is because you want to have national standards. You also want a way to allow the EPA to enforce provisions so that there can be penalties that are enforced uniformly throughout the US,” Lopez said.

The issue drew heavy attention in 2021 when massive amounts of wastewater were discharged into Tampa Bay because of concerns about a potential breach of a reservoir at the former Piney Point phosphate plant site in Manatee County.

“We’re asking the EPA to do the right thing. Take the reigns, as it has many other instances when people are being exposed to risk not for any fault of their own. This was an industry that generates a waste that is radioactive, carcinogenic and toxic and it should be regulated as a waste that is hazardous,” Lopez said.

Tuesday’s 18-page notice said stacks and wastewater contain toxic waste and that the EPA has not responded to the 2021 petition requesting regulation under a federal law known as the Resource Conservation and Recovery Act.

“The 2021 petition detailed major releases of phosphogypsum to surface and groundwater that occurred since the EPA last comprehensively reviewed phosphogypsum in 1990,” the notice said. “Shortly after EPA received the 2021 petition, Florida officials ordered the discharge of hundreds of millions of gallons of water from the top of the Piney Point phosphogypsum stack into Tampa Bay to avert a catastrophic collapse that threatened to send a wall of phosphogypsum and wastewater onto the nearby community.”

The notice said that the EPA decided in 1991 against regulating phosphogypsum under the Resource Conservation and Recovery Act, which gives the agency authority to control hazardous waste. The notice said the EPA indicated it would regulate the waste under another law, the Toxic Substances Control Act, but has not done so.

Attorneys for the coalition of groups contend that the EPA violated a legal requirement to take action within a “reasonable time” after receiving the 2021 petition requesting regulations.

Phosphogypsum is produced when mined phosphate rock is combined with sulfuric acid to form phosphoric acid, which is used to make fertilizer.

On its website, Mosaic, a major phosphate industry player, said phosphogypsum is deposited on stacks under “strict standards” established by the Florida Department of Environmental Protection and the EPA. Mosaic also described itself as “one of the most highly regulated companies” in the state.

“Florida regulations are among the most rigorous in the nation which is why the U.S. Environmental Protection Agency is using Florida’s phosphogypsum regulations as a template for the rest of the nation,” the website said. “Mosaic has developed extensive monitoring systems for air pollution control, surface and groundwater management, employee health and safety, process safety management and waste management/minimization.”