Environmentalists sue over plan to allow radioactive phosphogypsum in roads

The product comes from phosphate mining, which is big business in Florida.
A phosphogypsum stack is visible in the distance in Mulberry in 2016.
A phosphogypsum stack is visible in the distance in Mulberry in 2016. [ Times (2016) ]
Published Dec. 18, 2020|Updated Dec. 18, 2020

A collection of environmental groups announced Friday it is suing to stop the federal government from allowing a radioactive byproduct from the fertilizer industry to be used in roads.

The Environmental Protection Agency in October said it would permit limited use of phosphogypsum, left over from processing phosphate, in road materials. Phosphate mining is a major business in Central Florida, including around the greater Tampa Bay area.

Related: EPA approves use of radioactive phosphogypsum in roads, reversing long-held policy

The challengers — the Center for Biological Diversity, People for Protecting Peace River, the Sierra Club Florida and several others — said regulators made the decision without a chance for the public to comment. Further, they argued, the government used faulty analysis to reverse a policy and scientific understanding that dates back three decades.

The Environmental Protection Agency’s move followed a request from The Fertilizer Institute, which represents the industry that both creates and is required to maintain stacks, or large piles of phosphogypsum.

“Putting radioactive waste in roads just to lighten the financial burden of the industry that produces it is depraved,” said Jaclyn Lopez, Florida director of the Center for Biological Diversity.

A spokesperson for the Environmental Protection Agency said it does not comment on pending litigation.

Florida holds a billion tons of phosphogypsum, stored in about two dozen stacks. Supporters say the levels of radioactivity in the material would be low. Mosaic, an international phosphate mining giant headquartered in Tampa, said other countries already use it.

“Recognizing and encouraging the use and recovery of high-volume, low-risk byproducts is part of a worldwide trend towards a circular economy that views disposal as a last resort,” Mosaic spokeswoman Jackie Barron wrote in a statement. “This decision allows for not only building more sustainable roadways but enabling the reduction of stacks over time, which seems to be a shared goal with those bringing the challenge.”

In asking regulators to reconsider the ban, The Fertilizer Institute offered its own research to show how the substance could be handled safely. A spokeswoman said the Institute was reviewing the lawsuit and did not immediately have a comment.

Federal officials assessed the industry’s study and recommended conditions on building roads using phosphogypsum, saying any work had to be at least as safe as keeping the material in stacks. They considered specific cases including construction workers laying the road and residents living near it, agreeing that the risk of such people contracting fatal cancer was less than a threshold of 3 in 10,000.

The Environmental Protection Agency suggested restrictions on how much phosphogypsum could be mixed into road materials and limits on the level of radioactivity in the substance. Reviewers said the government should let the public know when phosphogypsum is used in a road.

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Regulators’ original opposition to roads with phosphogypsum involved a concern that someone would be exposed to too much radiation if they one day built a house on top of an abandoned street. The government said it still has that worry but could mandate “continued control, maintenance and use of the road” to lower the risk.

In a simultaneous petition filed with the Environmental Protection Agency to challenge the decision outside of court, the advocates took issue with the notion that regulators could guarantee a road would never be abandoned. They said radioactivity might persist for hundreds of years.

“There is no mechanism whatsoever for enforcing such a fictional condition: no deed restrictions required; no continued inspection by EPA; nothing to actually make such a condition anything other than a fig-leaf for approving a reversal of the 1992 rule,” they wrote.

Roads, they said, always degrade. They argued that analysis from The Fertilizer Institute took too optimistic a view of how streets age and did not consider distinct Florida problems like sinkholes and flood erosion when seas rise.

Transporting phosphogypsum for projects will be feasible only within about 200 miles, according to the Environmental Protection Agency’s estimate. That would mean much of the local waste would stay nearby.

The legal challenge, filed in Washington D.C., comes shortly before a change in presidential administrations and agency leaders. Andrew Wheeler, administrator of the Environmental Protection Agency, celebrated approval as a way of putting phosphogypsum “to productive use rebuilding our nation’s infrastructure.”

In its request, The Fertilizer Institute said “the cost to stack and manage gypstacks has increased beyond original expectations,” and regulators did not anticipate how much residents would dislike them, so “public pressure to cease this practice is growing.”

That may be true, said Lopez, of the Center for Biological Diversity.

“The last thing we need to do is scatter them and disperse them throughout the United States,” she said.