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Gypstack Challenge

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

Dennis Mader
3PR Executive Director
Thanks to Jacki Lopez and Rachael Curran of CBD for helping me with this article

Mosaic Agreement Bad For DeSoto County

On April 23, the DeSoto Board of County Commissioners voted 5-0 to accept a settlement agreement with Mosaic, the company that wants to stripmine some 18-20,000 acres in the northwest area of the county. The settlement, though sugar-coated on the outside, will be a bitter pill for DeSoto residents, as well as the residents of Sarasota and Manatee counties, who depend in part on Peace River for their supply of clean drinking water.

The special magistrate—a fancy name for mediator—who conducted the negotiations that were forced down the county’s throat by Mosaic was never introduced to the reality of Mosaic’s mining and manufacturing operations. It was as if a Bengal tiger negotiated with the villagers for a steady diet of children, while the mediator thought it was a tabby cat.

He had no idea that there would be eight massive lakes holding billions of gallons of waste slimes comprised of fuel oil, heavy metals, toxic chemicals, radioisotopes, mysterious synthetic amines untested on the human body, and other substances poised 60 feet above the Horse Creek tributaries, one hurricane away from breaching and annihilating all life downstream, as happened to the Peace and Alafia rivers many times. He had no idea what happens to the land that has been strip-mined; no idea where the product goes to be manufactured; no idea how much waste is created and how hazardous it is; no idea that Mosaic is under a $2 billion consent decree with EPA for mishandling toxic waste; no idea how many times phosphate mines have leaked, breached, sinkholed, and devastated aquifers, rivers and bays; no idea of phosphate’s links to red tide.

No, the special magistrate dealt with our situation as if Mosaic was a normal business. And this veneer of normalcy over the proceedings helped lull the BOCC into a false sense of security.

The settlement gives Mosaic four years to conduct quarterly, county sponsored “workshops”: opportunities for Mosaic to extol the virtues of its applications, which are encased in a small pickup-truck-full of 27 massive 3-ring binders. (Don’t believe me? Just go to the library and take a look for yourself.) If past performance is any indication, Mosaic is counting on four uninterrupted years of bald-faced propaganda, lies, and manipulated data to convey its point of view; to soften up the BOCC prior to considering its Master Mine Plan, Rezone and Operating Permit applications.

The commissioners like the workshops because they can talk among themselves without violating Florida’s Sunshine Laws as they experience The World According to Mosaic. A world in which sinkholes are mere anomalies; where tons of toxic and acidic water defy the laws of flow and gravity to obligingly remain in one place beneath the gypstack for three weeks; in which nobody gets sick or dies from the phosphate process; there is no waste fuel oil in clay settling areas, or CSAs; there is no impact from truck or train traffic; dust obligingly falls to the ground within 10 feet; machinery makes no noise; toxic waste releases are drinkable; neither CSAs nor gypstacks breach and release millions of gallons of toxic acid waste, and the devastated land will be put back better than God made it, all for just $5,000 an acre!

Mosaic loves the workshops because they provide unimpeded, unchallenged and unprecedented access to the BOCC, to smile and sell the idea of The World According to Mosaic. They know that it won’t be the details or the facts that carry the day. It’ll be the personal relationships, and the gradual cultivation of each commissioner.

With almost $5 billion in profits at stake, Mosaic can afford to be patient and strategic. It is already making plans to recruit another couple of reliable commissioners to be amply funded and elected onto the BOCC by 2022, in time to approve the applications for the DeSoto mine.

After January 2023, the historic rezone denial will turn into a pumpkin, the clock will go back to zero, and this community will have to endure the simultaneous hearings and deliberations on three massive applications. The sheer weight of facts, and the complex web of interconnected functions in those applications, will be more than any consultant can communicate or any commissioner can process, let alone maintain a healthy skepticism.

The grounds for decision will come down to personal relationships with the smiling tiger built over four years of exposure to Mosaic’s unsubstantiated facts, propaganda and misinformation.

— Andy Mele, Suncoast Waterkeeper

Andy Mele