Assistant Attorney General
US Environment and Natural resources Division
DOJ - ENRD
P.O. Box 7611
Washington, DC 20044-7611
November 5, 2015
Re: Consent Decree United States v Mosaic Fertilizer, LLC, DJ
Ref. No. 90-7-1-08388
Sent via email at: [email protected]
From page 72, United States of America and Florida Department of Environmental Protection vs. Mosaic Fertilizer, LLC; September 30, 2015, Section XX: Public Participation:
“The United States reserves the right to withdraw or withhold its consent if the comments regarding the Consent Decree disclose facts or considerations indicating that the Consent Decree is inappropriate, improper or inadequate.”
1. Preliminary Remarks
The phosphate industry has had more than 50 years to address its problem with responsible disposal of phosphate related wastes. Their problem has become our problem. Over the last half-century, more than 1 billion tons of cancer causing, radioactive phosphogypsum wastes have been dumped on Florida. Millions of tons of this waste are dumped into unsafe phosphogypsum “stacks” annually.
Mosaic has illegally disposed of commingled hazardous wastes, including those from the production of sulfuric acid, diammonium phosphate and monoammonium phosphate fertilizer, and fluorocilicic acid with the phosphogypsum wastes that have been piled up in flat-topped mountains called “stacks” across the minelands of west-central Florida.
Since the Consent Decree of September 30, 2015, we are finally able to call this material what it is: hazardous waste. It lies exposed and labile in these phosphogypsum mountains that loom over human and natural communities throughout the region. Waste is pumped as slurry to the hollow tops of these mountains, into settling lakes where it becomes dilute, but remains intensely acidic, radioactive, and toxic in concentrations. In these lakes, it evaporates into a gaseous phase and migrates throughout the regional environment. In solution, it seeps through the “stacks,” into the aquifers. Under periods of intense rainfall, the lakes overflow, breach the berms that restrain them, and flow into streams, tidal wetlands, and rivers, killing every living organism.
The continued operation of phosphogypsum stacks represents an imminent hazard and is contrary to the public health and safety. Additional phosphogypsum should not be permitted at any of the eight phosphogypsum stacks identified in the Consent Decrees until Mosaic has finalized the Resource Conservation and Recovery Act (RCRA) hazardous waste determination for those sites. Mining and processing operations contributing waste to the eight stacks should immediately be halted.
Phosphogypsum has a high radium content. Radium becomes concentrated, during the mining and manufacturing processes, up to 60 times the background levels of naturally-occurring radioisotopes. The USEPA lifetime allowable cancer risk resulting from exposure to this waste is one excess fatal cancer per 10,000 people, while the actual lifetime exposure is variable and unknown. Dissolved radium can migrate from phosphogypsum stacks into subsurface aquifers; wind can spread radioactive gypstack dust to adjacent communities. Both can result in dermal, inhalation, and ingestion exposures. Radium's 1630-year half-life has resulted in these dangerous exposures being a health risk for millennia. There is emerging evidence that suggests the presence of toxic constituents, and the diseases associated with them, in ground water within the vicinity of some gypstacks, and possibly much more widespread.
The Consent Decree has conclusively demonstrated that there is a “smoking gun,” in the commingling of hazardous and toxic wastes along with Bevill-exempt wastes, as had long been known or suspected. The Consent Decree, however, does not make any attempt to identify victims of the smoking gun, or obtain any remedies for victims, and this shortcoming is egregious to the point of meeting the test of inappropriate, improper or inadequate.
The Consent Decree needs to accurately define these exposures, identify afflicted populations, and identify current impacts before meaningful remediation will have been achieved.
2. Human Health Studies Must Be included in the Consent Decree
From page 63, United States of America and Florida Department of Environmental Protection vs. Mosaic Fertilizer, LLC; September 30, 2015, Section XIII: Effect of Settlement/Reservation of Rights:
“The United States and FDEP further retain all authority and reserve all rights to take any and all actions authorized by law to protect human health and the environment, including Corrective Action Work and Non-CD Corrective Action, and all legal and equitable remedies to address any imminent and substantial endangerment to the public health or welfare or the environment arising at, or posed by, Mosaic’s facilities, whether related to the violations addressed in this Consent Decree or otherwise.”
The long-term health effects of living in close proximity to massive quantities of phosphogypsum waste, as well as the hazardous wastes that have been mixed with it, needs to be determined. There is sufficient anecdotal evidence, as well as some alarming informal surveys being conducted by afflicted residents, to justify extensive epidemiological analysis of the entire minelands region. The USEPA action against Coronet Industries in Plant City, FL, in 2008 should provide a useful template for understanding the extent of illness that attends exposure to phosphate fertilizer production in just one community.
The anecdotal evidence we are seeing and hearing also points strongly to lopsided impacts among lower-income and minority communities, leading to deep concerns about environmental justice (EJ) in the minelands region.
USEPA needs to conduct comprehensive human health studies for, at a minimum, the neighborhoods surrounding the six Florida phosphogypsum stacks and two Louisiana stacks covered by this Consent Decree. In fact, the entire region must be studied. Epidemiological studies are needed to determine health impacts from violations of the Florida Resource Recovery and Management Act and RCRA for adjacent communities.
Epidemiological studies are urgently needed to identify the incidence of leukemia and anemia precursors, bone cancer, liver cancer, lung cancer, thyroid cancer, hair and tooth loss, COPD, chronic fatigue, burn-like lesions, skin tumors, Parkinson’s Disease, vision impairment and chronic health effects from long-term or lifetime exposure to levels of ionizing radiation and other hazardous or toxic materials present in the water and air in areas surrounding phosphogypsum stacks.
Employee exposure to and illnesses from toxic and hazardous substances needs to be evaluated. Mosaic must be compelled to release all records of current and former employees, and make every attempt possible to contact the former employees, or their families, for epidemiological analysis. USEPA can then determine if Mosaic is in compliance with the Occupational Safety and Health Act of 1970 and OSHA Regulations (Standards - 29 CFR).
3. Fish Kills
The Riverview phosphogypsum “stacks” loom over the Alafia River basin and Hillsborough Bay. In the fall of 2005, hurricane winds and rain breached the berm holding the acidic and radioactive commingled mine and process wastes in the settling lake, and the resulting spill killed an estimated 65 million fish – every last fish, crab and mollusk – in the Alafia River, and out into Tampa Bay. Both the Riverview “stacks” and the closed “stack” at Piney Point, have also been associated with algal blooms and localized anoxia in Bishop’s Harbor and Hillsborough Bay.
In 2011, the Piney Point phosphogypsum “stack,” not a Mosaic property, but identical to the other “stacks” that loom over the west-central Florida landscape, breached, releasing 170 million gallons of toxic water into Bishop’s Harbor, creating an anoxic “dead zone” in Tampa Bay and the Gulf of Mexico. In 2013, heavy rains again threatened to breach the settling ponds atop the “stack.” Many other “stacks” and so-called “clay settling areas,” the industry’s term for lakes of acidic and toxic waste materials in aqueous suspension, have threatened to burst, threatening whole communities, native habitat, agricultural land, Wild and Scenic Rivers and Outstanding Florida Waters, including drinking water sources, and springs. Kissingen Springs, once one of Florida’s largest, is thought to have been choked out of existence by a “clay settling area” collapse.
Since the Consent Decree calls for a delayed remedial response to this and other similar threats to the environment and human communities at the 20-plus other phosphogypsum “stacks” around west-central Florida, allowing 20-30 years for a remediation fund to mature to $2 billion, this threat will remain unchanged for another human generation, if not longer.
The active “stacks” must be shut down and remediated now. No civil society should allow a corporation to grossly endanger its citizens and its natural communities for the sake of some shareholder returns and CEO salaries. The “stacks” are not under control. They are exposed and labile.
4. The Remediation Trust and Other Financial Considerations
The Consent Decree calls for the establishment of a trust fund and initial funding of some $670 million, to be released for remediation initiatives once the fund matures to $2 billion. Simple calculation reveals that the term to maturity will be a minimum of 20 years, and quite plausibly as many as 30 years, if the fund survives political predations during economic downturns or ideological flare-ups. Look at the history of the Florida tobacco settlement fund. Billions were set aside for education and other societal benefits, but back-to-back Crist and Bush administrations dismantled the fund to allow for “tax relief” for political cronies.
We see little in the Consent Decree to prevent this sort of thing from happening again.
Furthermore, even in a perfect scenario, where the fund survives to maturity, another entire generation of lower-income and minority Florida residents will have come of age with chronic exposure to fresh inputs of toxic and hazardous substances from unchecked and largely-unregulated phosphate mining practices.
We believe unequivocally that Mosaic must be compelled to fully fund the designated remediations, at an absolute minimum, with cash, today. It is wholly unacceptable – inappropriate, inadequate and improper – to delay remediation to allow a vulnerable fund to mature, that may well become little more than a slush fund for political cronies.
We strongly urge EPA and other plaintiffs to cooperate in the release of some $30-50 million, or other appropriate amount, to fund comprehensive epidemiological studies of the minelands region.
We believe that the costs of remediation should be undertaken and paid for now, without delay. There should not have to be another generation of American citizens exposed to Mosaic’s toxic and hazardous wastes, nor suffer the diseases that result from exposure.
If the costs of remediating the “stacks” means that no more phosphogypsum mountains are built in the country, that can only be viewed as an economic benefit once all the social and external costs are captured.
5. Political Obstructionism
We understand that EPA and other agencies recently attempted to sample the minelands for radioisotope and other toxic emissions, but were blocked by state and local political interference motivated by the undue influence of Mosaic and other phosphate mining interests.
We understand that EPA is sensitive to the political vulnerability of its funding, and already suffers funding and staffing shortfalls because of ideological and corporate influences. Still, it was a breathtaking abdication of responsibility by the agencies responsible for safeguarding our public health and environmental quality, one that left many sick, impoverished and concerned Floridians wondering if their federal government has any concern for their wellbeing at all.
EPA, DOJ and FDEP have done the heavy lifting, and brought one of the most predatory polluters in America to bay in this Consent Decree, and are to be lauded in every possible way for accomplishing that feat.
With a relatively modest additional effort, the work, which is already admirable at a regulatory level, can become meaningful, significant, and truly historic on a human level as well.
6. Groundwater Monitoring
USEPA needs to conduct an investigation to determine the concentration and extent of groundwater contaminants from the hazardous waste mixtures at each phosphogypsum stack. Additional groundwater monitoring wells screened in all underlying aquifers beneath the phosphogypsum stacks are needed to determine the hydrogeologic framework and groundwater flow directions between and within aquifers, and groundwater contaminant transport.
The USEPA and the Florida Department of Environmental Protection should not issue any variances for extended zones of groundwater discharge around the gyp stacks until the investigation results are known, because such variances would allow for noncompliance of established groundwater standards.
It is common knowledge that Mosaic has water withdrawal permits far in excess of its manufacturing requirements. It is widely suspected that Mosaic dilutes its NPDES-permitted releases to groundwater and surface waters, to keep levels of toxic and hazardous constituents within “acceptable” limits.
In addition to enhanced and more intensive groundwater monitoring, EPA must perform mass-balance analyses of these groundwater aquifer withdrawals, to determine whether Mosaic is truly in compliance with its NPDES permits, or is gaming the system, using Florida’s unique water laws to its benefit.
7. Air Quality Monitoring
Radiation air quality monitoring is needed as part of the Consent Decrees. An assessment of the health effects on gypstack area residents of low-level radiation resulting from windblown particles from phosphogypsum stacks is needed.
Such particles are dermal, ingestion, and inhalation hazards. Revisions to the National Emission Standards for Hazardous Air Pollutants (NESHAPS) under Section 112 of the Clean Air Act should be changed to address the cumulative risks resulting from phosphogypsum stacks located in close proximity to each other. These exposures may spread to the Florida community and beyond, because the gypstacks are proximate to farms. The agricultural products of these farms are vulnerable to contamination.
8. Superfund NPL Listing and RCRA Enforcement
It is widely known that the 23 phosphogypsum “stacks” in the west-central Florida minelands are the largest repository of toxic and hazardous wastes – as we now know them to be – in the United States, and possibly the world. Because there are no federal or state guidelines for disposing of phosphogypsum, other than a prohibition on creative re-uses because the material is too hazardous, the “stacks” are unregulated: raw, open mountains of toxic and hazardous waste, let loose in the environment to blow with the wind and flow with the rain.
USEPA must evaluate all qualified (inactive) phosphogypsum stacks, as well as formerly-mined lands pocked with toxic waste settling pools, reclaimed or not, for listing on the NPL, regardless of the Superfund’s financial status. There are PRPs aplenty, not just Mosaic – more than enough to undertake heavy remediation.
Those facilities that are still in operation, both covered by this Consent Decree and not, must be made subject to the fullest extent of RCRA’s enforcement powers.
9. Environmental Justice
The USEPA defines Environmental Justice as “fair treatment for people of all races, cultures and incomes, regarding the development of environmental laws, regulations and policies.”
Phosphate operations in Florida, including phosphoric acid plants, are frequently located close to population centers. Living in close proximity to toxic air pollution and toxic waste sites has been linked to health risks ranging from cancer to birth defects.
Several phosphogypsum “stacks” are located very close to schools and residential areas, including playgrounds and sports fields built by Mosaic to buy good will from the communities. These “stacks” contain an average of 21-30 picocuries per gram of radium 226.
The phosphogypsum “stacks” in Florida and Louisiana, and their phosphoric acid plants, drive down property values and foster the formation of low-income communities. Anecdotal evidence indicates that these communities have and are experiencing significant health problems resulting from proximity to the “stacks.”
They are denied equitable treatment under the law because they do not have the resources to fight Mosaic.
Therefore, USEPA and FDEP policies and regulatory enforcement with respect to Mosaic’s phosphogypsum “stacks” must become the focus of an extensive and comprehensive Environmental Justice investigation.
A determination of Environmental Justice violations must be undertaken. Minority and low-income people bear a disproportionate amount of the adverse health and environmental effects associated with the phosphogypsum “stacks.”
10. Moratorium on Phosphogypsum Stack Expansions
Incredibly, many of the stacks are still in operation, growing wider and higher every day, increasing the potential for chronic, and occasionally catastrophic exposures.
USEPA has the power to implement a comprehensive statewide reassessment plan for Florida’s phosphogypsum “stacks,” and to implement such a plan before any additional mining permits are granted.
USEPA needs to identify a long-term solution that will safely manage the 23 mountains of phosphogypsum located throughout west-central Florida, and until that plan is in place, there should be a moratorium on any and all expansions or additions to the “stacks.”
11. The True Economics of Phosphate Mining
The supposed benefits of phosphate mining are illusory and largely rhetorical. The downtowns of so-called mining towns, such as Fort Meade, are characterized by shuttered businesses, weeds growing up through the pavement and weed-choked vacant lots. The Dollar Stores are the only vibrant businesses. Not even grocery stores seem to survive.
Having destroyed, for the foreseeable future, the arability of some 500,000 acres of once-productive agricultural land and native habitat, phosphate mining has displaced tens of thousands of workers who once held long-term, sustainable jobs in agriculture. Communities were thriving.
Phosphate mining has replaced the thousands of permanent agricultural jobs with a few hundred temporary mining jobs.
Mosaic and other phosphate mining operations strip-mine and destroy – literally destroy – the land, leave it in ruins, displace workers, leave property values depressed, and systemically corrupt the mined counties’ governance, reaching as far as the statehouse in Tallahassee. The land is ruined, the workers displaced, the product gained from the soil and the sacrificed health of the company’s workers is largely exported, and the capital is also exported to corporate shareholders, who live anywhere but in the minelands they are destroying.
Phosphate mining is corporate colonialism at its worst.
USEPA, DOJ and FDEP must not allow themselves to be cowed by accusations that they are causing economic damage, job-killing, and all that specious rhetoric. There are few or no lasting economic benefits to phosphate mining. Objective economic studies (e.g. Weisskopf, 2012) have shown that phosphate strip-mining and fertilizer manufacturing are a net loss to the region and its people.
12. Mosaic Self-Reporting; EPA as Lead Agency
Corporations self-reporting is and has always been a travesty, and makes a mockery of environmental regulations. The Consent Decree mentions self-reporting in too many places to cite, but it clearly depends for its effectiveness upon the sincere willingness of Mosaic Co. to honor the terms of the CD and assess its own levels of compliance with the relevant regulations.
The residents of west-central Florida are at best skeptical, and at worst find this provision literally laughable. Mosaic Co. is widely known to be a dishonest broker, implicated in obfuscations of self-reporting on its NPDES permits already, and for many years, preferring instead to spend millions on disingenuous misinformation in advertisements and community projects.
With 23 phosphogypsum “stacks” comprising the nation’s largest hazardous waste repository, exposed, unmanaged, uncontrolled, a clear and present threat to tens of thousands of lives, we believe it is worth having an EPA office permanently established in the region, for monitoring and data analysis, and to provide an honest intermediary between the public and Mosaic Co., so that citizens can monitor the data and draw their own conclusions.
We believe that the highly-politicized nature of FDEP, and a systemic neutering of its enforcement staff, precludes it from doing what needs to be done vis a vis compliance with this Consent Decree, along with the additional monitoring and analytical work that must be conducted, including issuing more stringent NPDES permits and evaluating compliance. Hence, again, we call for USEPA to un-delegate the state of Florida from its responsibilities for oversight of phosphate mining and processing, to create an EPA field office, and for EPA to name itself as lead agency in this matter, assigning a revenue stream from Mosaic to fund the necessary staff and office.
13. USACOE’s AEIS for the West-Central Florida Phosphate Minelands
The Corps’ AEIS was widely criticized, and even drew a 60-day letter, for deliberately excluding the phosphogypsum stacks and fertilizer production facilities from consideration in its Area-wide Environmental Impact Statement. As of today, however, with the phosphogypsum stacks clearly established as hazardous waste repositories, and the chemical byproducts of fertilizer production responsible for the hazardous denomination, and with human health risks, particularly from radium, uranium, and a variety of overtly toxic fluorides, yet to be determined, there is a clear conflict between the substance of EPA/DOJ v. Mosaic and the glaring omissions from the Corps’ AEIS. This leaves our communities with two contradictory responses and positions from two key federal agencies. The agencies’ positions should be consistent with each other. We strongly urge EPA and DOJ to compel the Corps to revisit the omissions from its AEIS, and complete the job it started so ably.
Thank you very much for this opportunity to offer substantive comments on the Consent Decree that emanated from United States of America and Florida Department of Environmental Protection v. Mosaic Fertilizer, LLC., September 30, 2015.
Linda Young, Executive Director
Florida Clean Water Network
Pete Nichols, National Director
The Waterkeeper Alliance
New York, NY
Jacqueline Lopez, Attorney
Center for Biological Diversity
Dennis Mader, Executive Director
People Protecting the Peace River
Laurie Murphy, Executive Director / Coastkeeper
Emerald Coastkeeper, Pensacola, FL
Neil Armingeon, Matanzas Riverkeeper
St. Augustine, FL
Emma Gerald Boyer, Waccamaw Riverkeeper
Center for Marine and Wetland Studies
David Whiteside, Tennessee Riverkeeper
Jen Hilburn, Altamaha Riverkeeper, Executive Director
Harrison Langley, Collier County Riverkeeper
Paul Orr, Lower Mississippi Riverkeeper
Baton Rouge, LA
Lisa Rinaman, St. John’s Riverkeeper
John Quarterman, President
WWALS Watershed Coalition (a WKA affiliate)
Rae Schnapp, Wabash Riverkeeper
West Lafayette, IN
Art Norris, Quad Cities Riverkeeper
Dean Wilson, Atchafalaya Basinkeeper
Baton Rouge, LA