Company ordered to pay Idaho tribes for toxic waste storage

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BOISE, Idaho (AP) — An agribusiness company that turned phosphate into fertilizer must pay $1.5 million in permit fees annually to eastern Idaho tribes to store millions of tons of toxic waste on tribal lands, a federal court has ruled.

Chief U.S. District Court Judge B. Lynn Winmill in a 33-page order on Thursday granted a request by the Shoshone-Bannock Tribes to enforce a tribal court decision imposing the permit fees on FMC Corp.

Winmill ruled that FMC previously consented to tribal jurisdiction and agreed to the $1.5 million in annual waste storage fees before challenging them in tribal court and declining to pay them starting in 2002 after closing the fertilizer plant.

“FMC’s arguments that its cadre of attorneys had no idea they were agreeing to a permit fee with no expiration date is ludicrous,” Winmill wrote.

The ruling awards the tribe $19.5 million for unpaid permit fees from 2002 to 2014, about $1 million in attorney fees and says FMC is obligated to pay $1.5 million annually in perpetuity to continue to store the waste.

The tribe said FMC hasn’t paid permit fees for 2015, 2016 and 2017, and that it will seek through the courts to get those payments as well as future payments.

“The tribes are committed to continuing their effort to protect and preserve the environment for the health and welfare of inhabitants,” Nathan Small, chairman of the Shoshone-Bannock Tribes, said in a statement. “The tribes believe in protecting Mother Earth for all future generations.”

FMC, which has offices around the world with its corporate headquarters in Philadelphia, said in a statement Friday to The Associated Press that it will appeal the decision to the 9th U.S. Circuit Court of Appeals.

“FMC is disappointed in the District Court’s decision, which failed to follow legal principle established by the United States Supreme Court,” the company said.

From 1949 to 2002, the company operated the fertilizer plant that is now part of a Superfund site. It produced 22 million tons of waste stored on Shoshone-Bannock Tribes Fort Hall Indian Reservation. That includes, the court said, burying about 21 tanker rail cars containing phosphorus sludge rather than cleaning up the toxic material.

Winmill wrote that FMC agreed to tribal jurisdiction and the $1.5 million annual permit fee to store the waste stemming from a consent decree with the Environmental Protection Agency rather than face fines and giant cleanup fees while the plant was still operating.

“That was a sweetheart deal and FMC was desperate to grab it,” Winmill wrote.

The company contends that it’s no longer obligated to pay the permit fees with the 2002 closing of the plant. But Winmill said the fees are for storing the waste and whether the plant is operating isn’t relevant.

The waste “will persist for decades, generations even, and is so toxic that there is no safe method to move it off-site,” Winmill wrote.

The Environmental Protection Agency said it’s not technologically feasible to remove the toxic material, and an attempt at such an undertaking would cost $4.7 billion. The EPA is spending $47 million over 30 years to manage the waste in an attempt to prevent it from contaminating air and water.

Phosphate mining continues to be a major business in southeastern Idaho where phosphate ore is turned into fertilizer needed by farmers to grow food. The area contains one the nation’s most abundant deposits of phosphate, and agribusinesses Simplot and Monsanto have mines in the area. But the area also contains 17 Superfund sites because of pollution from past phosphate mining.

Experts say the area is rich in phosphate because it was once a 116,000-square-mile (300,440-square-kilometer) inland sea where organic material from fish, plants and small animals was deposited over a 5-million-year span about 265 million years ago.

Full Article Here

Letters to the Editor – Bradenton Times

Letters to the Editor
Bradenton Times
Saturday, Feb 11, 2017

Would mining activities preclude future normal uses of mined out lands? This is question #6 from the Manatee County staff report, Standards for Master Mining Approval, page 13.

The answer is much more than staff reports. Not only building, but agriculture on reclaimed land would be extremely limited. Is the burden of proof not on the applicant? The market has not demonstrated that agriculture is a viable use of reclaimed mine land.

Mosaic may have their small, intensely managed experiments with ag after mining, however, vast areas of western Polk County demonstrate no agriculture to speak of on reclaimed land. The only exception is a rare siting of a few cows on grazing land.

Go to Hardee County. In 2008, a “Mosaic Agreement” granted the county economic gurus 42 million dollars over a ten year period as compensation for the 11,000 acre South Fort Meade Extension mine. The county will tell you is for economic mitigation in the post-mining economy. This money hopes to start up industry, but the results have been questionable at best. Is this not an admission even by the industry itself that after mining and reclamation, lands will not support the former economy of agriculture.

One time, temporary use; permanent loss. Phosphate strip mining is only profitable for Mosaic. Commissioners, think ahead one hundred years. Vote for Manatee County. Vote no on phosphate mining.

Brooks Armstrong
Bone Valley resident

3 PR joins Center for Biological Diversity and Manasota 88 and Suncoast Waterkeepers in litigation

Environmentalists will sue if Corps permits Florida phosphate mining

Mosaic phosphate

Four environmental groups have put the U.S. Army Corps of Engineers on notice that they’ll sue if the Corps follows through with authorizing phosphate mining on more than 50,000 acres of land in Central Florida. The environmentalists say the strip mining damages wildlife habitat and endangers drinking water and they’re threatening to sue the U.S. Fish and Wildlife Service as well.

WMNF News interviewed Jaclyn Lopez, Florida director of the Center for Biological Diversity, one of the four groups who filed the intent to sue on Tuesday.

“The Army Corps of Engineers has recently approved the phosphate mining development of about 50,000 acres of central Florida and this is predominately in Hardee, Manatee County areas and a little bit in DeSoto County. Most recently, they approved 7,500 acres of mining to start eminently, any moment now, in Hardee County.

Mosaic phosphate mining

Phosphate mining in Florida. By Jaclyn Lopez (used with permission).

“All this mining is going to be taking place in a region known as Central Florida Phosphate District. It’s an area that has seen tremendous phosphate mining over almost the last century. If you go out to that area, which is just east of Tampa, you’ll see the scars from historic phosphate mining.

“Before 1975, phosphate mines didn’t have to be reclaimed. If you’re ever in an airplane over that region of Florida, you’ll see these, sort of really pretty colored bluish-green bodies of water, like lakes, in these strips. That’s the legacy of strip-mining in Florida for phosphate. Since 1975, the companies have been forced to reclaim the land, which is to put it back to some sort of beneficial use, but, not necessarily to restore it.

“Our concern with this 50,000 acres of additional mining is first, it leaves a huge footprint on Florida. You’re removing 50,000 acres of habitat for imperiled species like, the eastern indigo snake and the crested caracara. Also, you’re adding to our existing phosphogypsum problem.

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High Radiation Levels alarm Mulberry citizens

POLK COUNTY, Fla. (WFLA) – Some residents who live near the massive sinkhole at Mosaic’s New Wales Plant are worried about their well water.

Recent test results show they should be concerned because of high levels of radioactive material. What is not clear is whether the Mosaic sinkhole, which dropped 215 million gallons of radioactive water into the Florida aquifer, has anything to do with it.

Mosaic – and some experts – say it’s possible the radioactivity was already present in some of these wells. They said it could have been caused by by “natural geologic processes.” Testing so far, according to the Florida Department of Environmental Protection, show the contaminated water has been captured exactly the way it should be.

A DEP spokeswoman said 8 On Your Side an email that said test results do not show that contaminants from the New Wales plant are showing up in the well water. There are certain characteristics from the New Wales water that are not showing up in the well water, leading the state to conclude the harmful materials in the water are unrelated to the sinkhole. The state official wrote:

“The ongoing monitoring onsite at the New Wales facility continues to show no movement of process water away from the sinkhole location. Process water is only being detected in the recovery well samples to date, which indicates that the recovery well is working as expected and capturing process water. In this geographic region of Florida, levels of gross alpha that are above the drinking water standard are often associated with natural geologic processes. In other cases, they may be related to the construction of the water well itself. ”

But resident Jennifer Psait isn’t sure she’s buying that. She points to a delay in Mosaic notifying residents about the problems.

One of two wells on Bob Glaze’s property has so much radium in the brown water that he shut it off – out of fear. Psait is Glaze’s next-door tenant. She shares his two wells. Psait is worried about her three children who, until recently, drank and bathed in the water

“I’m not a chemist, or a chemistry student,” she said. “I think that’s pretty bad.”

Water tests show radium levels of 52.01 picocuries per liter – that’s more than five times the acceptable standard. Psait is concerned about the lack of information from Mosaic officials. And she’s leery of what they do tell her, since the company wasn’t forthcoming, at first, when the sinkhole opened in late August.

“The thing I really don’t respect about them is that they knew that had happened, even when they had coordinated with the legislature and they didn’t report it to the public. They only reported it when it started getting leaked,” Psait said.

The Mosaic sinkhole dropped more than 215 million gallons of radioactive water into the Florida aquifer. The company has tested 763 nearby wells and say 10 show water that’s not safe to drink. But the company takes no responsibility for this, saying the radioactive materials are just a coincidence.

DEP officials say they are trying to contact all of the residents with wells that showed contaminated water and will assist those residents in determining how to fix their water issues. In the meantime, Mosaic continues to deliver drinking water to residents who request it.

Testing shows radioactive material in wells; state says material is unrelated to Mosaic sinkhole

Mosaic Appeals District Court Injunction on S. Ft. Meade Mine Extension

Hello Everyone:

As you may or may not know, Mosaic filed a notice of appeal on July 15 with the 11th Circuit regarding our second preliminary injunction which was granted on July 8. That appeal (No. 11-13277-EE) has officially begun with the filing of Mosaic’s Motion for Stay Pending Appeal, which is attached here. Eric asked that I send all of you a copy of the document; if there are any questions, please feel free to contact me.


Amber E. Williams
Sierra Club Environmental Law Program
1650 38th Street, Suite 102W
Boulder, Colorado 80301
(T) 303.449.5595 ext. 104
(F) 303.449.6520

EPA, GOP In ‘Head-To-Head’ Fight Over Residential Radiation Standard

EPA, GOP In ‘Head-To-Head’ Fight Over Residential Radiation Standard
Posted: July 8, 2011
A group of Republican congressmen from Florida are battling EPA over whether the agency should survey parts of the state where it fears tens of thousands of people living on former phosphate mines may be exposed to dangerous levels of radiation, with the lawmakers challenging EPA’s long-held cleanup standard for radioactive contamination in residential areas.
According to one congressional staffer, the Republican congressmen and EPA’s administrator are in a “head to head” fight over the surveys, even as EPA is considering using them more widely.
At issue are approximately 10 square miles of former phosphate mining lands near Lakeland, FL, where EPA has taken no cleanup action despite having had concerns since the late 1970s that the indoor air of homes built on the lands is contaminated with cancer-causing levels of radiation. EPA’s concerns, made public by an award-winning series of Inside EPA articles in 2010, have prompted a negative reaction from the Republican congressmen, who believe the agency’s fears are overblown.
In February the lawmakers, who include Reps. Dennis Ross, Gus Bilirakis, Vern Buchanan, Richard Nugent and Thomas Rooney, sent a letter to EPA Administrator Lisa Jackson in which they take issue with EPA having recently conducted a preliminary aerial survey near the area in question, according to the letter, which Inside EPA recently obtained through a Freedom of Information Act (FOIA) request. The survey is considered to be a key early step in a possible cleanup process (Superfund Report, Feb. 7).
In the letter, the lawmakers call EPA’s long-held standard for cleaning up radioactive contamination in residential areas “arbitrary” and claim that past studies by the Florida Department of Health found no health risks in the area. Relevant documents are available on (Doc ID: 2369534)
In a May response letter to the congressmen, EPA waste chief Mathy Stanislaus does not directly address the lawmakers’ challenge to the agency’s cleanup standard. But he defends EPA’s use of aerial surveys and does not offer to halt such surveys or notify the lawmakers prior to conducting them in the future, as the lawmakers demand in their letter.
Stanislaus offers to meet with the congressmen, but according to an EPA spokeswoman, no such meeting has been scheduled.
According to a spokesman for Ross, the congressmen are “still in a head-to-head fight with [EPA Administrator] Lisa Jackson about getting notification on flyovers, let alone having them brought to a halt.” Spokesmen for the other lawmakers could not be reached for comment.
Stanislaus says that the limited survey EPA conducted earlier this year “contributed valuable information to the agencies as plans for a larger-scale survey were considered . . . Based on this information, EPA is considering a larger-scale aerial survey to collect data related to phosphate mining sites and background areas.”
He adds that it “is important to note that conducting an aerial survey is not necessarily an indicator of a concern or a need for remedial action. Surveys are also useful tools for confirming areas that are not considered to pose potential health or ecological risks.”
According to the EPA spokeswoman, EPA has not yet made a final decision on how to proceed with such surveys.
The EPA standard, which the agency has used as the basis for radiological cleanups near residential areas throughout the country, has long been a source of contention between EPA, Florida and phosphate mining industry officials. The disagreement is one of the main reasons why the agency has yet to act on its concerns about human exposure in the area (Superfund Report, Jan. 25, 2010).
The standard, which comes from EPA’s regulations under the Uranium Mill Tailings Radiation Control Act (UMTRCA), dictates that radium-226 concentrations in soil — which are often elevated on land that has been mined for phosphate — should not exceed 5 picocuries per gram (pCi/g) above what naturally occurs in the area. EPA has long relied on the standard as an applicable or relevant and appropriate requirement (ARAR) under Superfund law for radioactive cleanups near residential areas around the country.
But Florida officials have argued that no cleanup is necessary unless people are being exposed to more than 500 millirem (mrem) of radiation per year, a suggestion that some environmentalists fear could set a dangerous precedent given that EPA has historically considered exposures above 15 mrem to be unsafe.
In their February letter, the congressmen claim that the federal Agency for Toxic Substances and Disease Registry (ATSDR) “in reviewing the [EPA] standard, stated [it] could be set two orders of magnitude higher and still be protective of human health.”
But while ATSDR in documents previously obtained by Inside EPA suggests that it would be satisfied with a 100 mrem standard, the agency in the documents says it does not object to EPA relying on its traditional ARAR, to which the congressmen and state officials are opposed.
In addition, ATSDR says in the documents that it agrees with EPA that aerial surveys of the area are necessary.
But in their letter, the Republican congressmen call such surveys “an inappropriate use of taxpayer dollars. Furthermore, the arbitrary standard advocated by the EPA creates a significant risk of placing an unjustified and permanent stigma over thousands of acres of land in [our] district[s].
“Florida’s real estate market is already under significant duress as a result of the economic downturn in our own state,” the lawmakers add. “These potential actions by the EPA stand to impede Florida’s recovery without any basis in human health risks.”
According to documents Inside EPA previously obtained under FOIA, many of the areas EPA is concerned with are occupied by wealthy, up-scale residential developments and resorts. But according to more recent documents, EPA is also concerned that some of the potentially affected areas could be low-income or minority communities, creating environmental justice concerns. — Douglas P. Guarino
© 2000-2011. Inside Washington Publishers

Douglas P. Guarino
Associate Editor
Inside Washington Publishers
(Inside EPA’s Superfund Report)
1919 South Eads Street, Suite 201
Arlington, VA 22202

Opponents challenge new Mosaic mining plan

Opponents challenge new Mosaic mining plan

Fort Meade Leader/Polk County Democrat
Staff Writer
Saturday, April 23, 2011 1:54 PM EDT
A plan unveiled earlier this week that would keep mining operations going for at least another year is being challenged by opponents who filed a lawsuit last year to stop an expansion at Mosaic’s South Fort Meade site.

An expansion into Hardee County that would involve mining about 7,800 total acres has been embroiled in legal wranglings since last summer. Mosaic is seeking the expansion to keep the mine operations uninterrupted, and avoid laying off about 140 workers.

A trio of groups, including the Sierra Club and People for Protecting the Peace River (3PR) filed suit to stop the expansion. A federal judge issued a halt to the expansion plan after the suit was filed, but earlier this month a federal appeals court sent that ruling back to the lower court with instructions to take a new look at its decision. It gave the lower court a 90-day stay of its injunction while it came up with a new ruling.

In the meantime, the two sides agreed last October to a deal that would allow Mosaic to mine 40 acres in Hardee County, thereby forestalling any layoffs. However, Mosaic said that would only allow them to mine there into early summer.

Late Tuesday, Mosaic revealed it had come up with a plan that would allow them to use those 40 acres to access another 700 acres on the site, dubbed Area 2, that did not involve any wetlands. As such, the phosphate giant said it did not need any further permitting for that idea, since permits were already in place before the lawsuit was filed.

But Dennis Mader, a Wauchula resident and president of 3PR, said not so fast.

“The 90-day stay was meant to preserve the status quo,” Mader told The Fort Meade Leader. “To mine Area 2 would affect adjacent wetlands, the very reason for which we challenged this permit in the first place.”

He also added that “by their (Mosaic’s) own previous arguments, to mine Area 2 would require re-permitting from the state.”

Mosaic described the 700 acres as “uplands” and not wetlands, in its court filing earlier this week.

The plaintiffs also argue that since the court case has currently stayed needed permits for expansion, “there is in effect no permit for Mosaic to comply with.”

Opponents note that the uplands proposal involves land that “surrounds and is immediately adjacent to the jurisdictional wetlands. Mosaic promises to ‘avoid’ the wetlands and not to ‘mine’ them. However, there would be adverse impacts to them.”

In addition, the plaintiffs noted that “any mining activity that affects the soils or subsoils of these adjacent uplands has the potential to alter the timing and volume of groundwater flows to these down-gradient wetlands.”

On Tuesday, Mosaic said it was planning on transitioning its mining operations to these 700 acres in the next 30 to 60 days. A company spokesperson said while mining only the uplands was less efficient than also including the wetlands for mining operations, it would allow them to “keep its workforce employed while it addresses the merits of the litigation.”

It is unclear if and when a court ruling might come on this latest plan.

On Tuesday, Mosaic officials said they didn’t expect a new ruling from the U.S. district court in Jacksonville on the larger lawsuit issue until July.

Mosaic Notifies Court of Mining Additional Uplands at South Fort Meade Mine

PLYMOUTH, Minn., April 19, 2011 /PRNewswire via COMTEX/ —
The Mosaic Company (NYSE: MOS) announced that it has notified the United States District Court for the Middle District of Florida that it plans to conduct uplands-only mining (i.e., non-wetlands) in an area at its South Fort Meade, Florida, phosphate rock mine in Hardee County. This upland area is accessible from the approximately 200-acre area where the Company is currently mining. Mosaic plans to begin transitioning its mining operations into these uplands over the next 30 to 60 days. The South Fort Meade permit for mining wetlands issued by the U.S. Army Corps of Engineers is under review by the District Court, as recently ordered by the Eleventh Circuit Court of Appeals. The Company estimates approximately one to two years of mining potential in this upland area. Although the uplands-only mining will be less efficient than if the Company could also mine the wetlands, this transition will allow the Company to continue to produce phosphate rock and keep its workforce employed while it addresses the merits of the litigation concerning the permit for mining wetlands in the extension of the Company’s South Fort Meade mine into Hardee County. A ruling by the District Court is expected by July 2011.