Antiphosphate Mining Coalition Challenges Gypstacks in Federal Court
On May 22 The Center for Biological Diversity (CBD), People for Protecting Peace River (3PR), Manasota-88, and Suncoast Waterkeeper presented their case against the US Army Corps of Engineers before the 11th Circuit Court of Appeals in Atlanta, GA. This judicial hearing proceeded from a lawsuit filed but lost in the US Middle District of Florida in Tampa in May 2017. Among other arguments ultimately denied by the District Court the CBD contended that the US Army Corps of Engineers in their issuance of a 404 “Dredge and Fill Permit” in the waters of the United States, “failed to consider the ill effects of phosphogypsum stacks on the environment and on public health.”
In case you have forgotten or are unaware, phosphogypsum is a toxic waste product of phosphate fertilizer production which requires vast amounts of sulfuric acid to condition the phosphate ore and make it assimilable to crops. Fertilizer production, in this case, is part and parcel of the same company that currently controls all the strip mining and processing operations necessary to supply the phosphate rock needed to manufacture fertilizer: Mosaic Company.
To the layman the Army Corps of Engineers’ failure to acknowledge the presence and risk of “gypstacks” in their environmental assessment would seem like an obvious oversight. The mountainous stacks are a prominent geographic feature around Bartow, Mulberry and Plant City. Typically there is a “lake” of sulfuric acid atop the stack where the waste stream from the fertilizer plant is discharged. Phosphogypsum is not only acidic, but it is also radioactive. There are more than 20 of these stacks in the vicinity of Lakeland and Tampa, and each one is a potential disaster which could disgorge its toxic contents into the very aquifer where many of us derive our drinking water.
To boost fertilizer sales Mosaic regularly pitches its “vertical integration” or its ability to control the production of fertilizer from the mining of the phosphate ore to the sale of its finished agricultural fertilizer products. Furthermore when applying for their water use permits (MegaWUP 66,000,000 gallons/day) the company considers the water use for the totality of their operations (mining and fertilizer production). In fact the administrative record itself says the “very viability of the fertilizer plant depends on the ability to mine the rock.”
However when evaluating the impacts of phosphate mining on the Florida environment, the Army Corps of Engineers which is responsible for analyzing the “cumulative impacts” of projects like strip mining does not consider the gypstacks a “reasonably foreseeable” outcome of mining. This distinction has to do with the concept of “independent utility.” That is, the phosphate rock, once it has been separated from its matrix of clay and sand, is in theory marketable anywhere in the world. “In theory” because the reality is that 100 percent of it stays right in Florida where Mosaic produces its fertilizer. Phosphogypsum stacks represent the tail end of fertilizer production. To produce a ton of fertilizer Mosaic produces 5 tons of toxic waste. The stacks routinely fail, and have polluted the the Floridan Aquifer – where nearly 10 million people get their drinking water. As recently as August of 2016, 215 million gallons of acidic water and phosphogypsum disappeared down a gigantic hole which formed underneath a phosphogypsum stack. The hole was over 400 feet deep, and swallowed the waste water and radioactive waste material in the stack, and disgorged it into the Floridan aquifer which flows far below the stack.
Within the coalition of environmental organizations who oppose the expansion of phosphate mining we contend that the ultimate failure of phosphogypsum stacks is so injurious to our primary source of drinking water and not at all uncommon, and that no further phosphate mines should be approved until a solution for fertilizer manufacturing waste disposal is discovered.
There are two ways for the toxic wastes of fertilizer processing to permeate our water supply: The first is for the ground underneath the gypstack to subside as described above – where the acidic effluent escapes out the bottom and creates a cavern in the limestone substratum, until the huge weight of the mountain of phosphogypsum bearing down collapses, and all the contents are lost into the chasm. This has taken place five times already in recent history mostly in the gypstacks in southern Hillsborough and Polk Counties, but also near White Springs in Suwannee County .
The other way gypstacks can fail is when there simply more water in the pond than can be contained, and the waste water is purposely discharged into a nearby creek or shuttled in barges out into the Gulf of Mexico where it is released – as happened at the abandoned Piney Point stack near Port Manatee in 2001 after Hurricane Gabrielle. Or the waste water can be whipped up by a storm event and breach the containment as happened as a result of Hurricane Frances in 2004.
In all we have documented 11 gypstack failures between 1994 and 2016.
Although on the surface our argument seems unimpeachable, the appeal faces an uphill battle, between the lower court’s ruling and an exceedingly deferential standard the 11th Circuit Court of Appeals has established for agency action. To wit, the Army Corps of Engineers’ has interpreted the limitation of phosphate mining to occur when the beneficiation (separation) process is complete, and not after fertilizer processing occurs. In light of the disastrous consequences of a gypstack failure on our drinking water you might consider that minor distinction a mere technicality, however, it is precisely this technicality that is (from a regulatory perspective) the gossamer thread by which the gypstacks owe their existence.
The appellate court is currently weighing its decision. There is no time limitation or any other requirement that compels them to arrive at that decision. In the meantime we wait expectantly. Our sincerest hopes and expressions of appreciation go out to The Center for Biological Diversity and their legal staff, particularly to Jacki Lopez who brilliantly argued the case on our behalf and on behalf of all of those who share our antipathy for the phosphate mining industry which has with virtual impunity wreaked havoc on the natural environment of west central Florida for generations
3PR Executive Director
Thanks to Jacki Lopez and Rachael Curran of CBD for helping me with this article