An environmental group Friday urged a federal appeals court to toss out a decision by the U.S. Environmental Protection Agency that would allow using phosphogypsum, a radioactive byproduct of the phosphate industry, in a Polk County road project.
The Center for Biological Diversity filed a 68-page brief at the 11th U.S. Circuit Court of Appeals arguing the EPA improperly approved a proposal by Mosaic Fertilizer, a subsidiary of The Mosaic Co., to use phosphogypsum in a pilot road project on company property.
In part, the environmental group pointed to a 1992 federal rule that barred using phosphogypsum in road projects and to potential cancer risks from the substance, which is typically stored in huge stacks, known as “gypstacks.”
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“EPA is required by its own regulation to assess the maximum individual risk of the proposed use, and even if that use is a pilot project, EPA must evaluate meaningful cancer risks to the public,” the brief said. “EPA fails to assess the maximum individual risks from phosphogypsum in road construction by limiting the pathways considered and accepting deficient sampling data. EPA is ignoring an important aspect of the problem and arbitrarily approving a deficient application.”
But in a March motion to intervene in the case, Mosaic said other countries do not dispose of phosphogypsum in gypstacks and “have instead recognized that it may be safely purposed for use in road construction, concrete and building material production, agriculture, mine restoration, marine applications and for daily landfill cover.”
“EPA’s regulations allow it to approve alternative uses for phosphogypsum on a case-by-case basis, provided the proposed use is at least as protective of public health as disposal in a gypstack or mine,” Mosaic’s attorneys wrote.
The Center for Biological Diversity filed the challenge in February, about two months after the EPA approved the project for Mosaic’s New Wales facility in Mulberry.
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The issue of using phosphogypsum in road building has long been controversial. Florida lawmakers and Gov. Ron DeSantis in 2023 approved a bill that authorized the state Department of Transportation to conduct a study of using phosphogypsum in road projects.
“Upon a determination of suitability by the department, phosphogypsum from phosphate production may be used as a construction aggregate material in accordance with the conditions of the United States Environmental Protection Agency approval for the use,” the bill said.
Mosaic’s motion to intervene in the lawsuit, approved in April, said the project would involve blending phosphogypsum and other materials in road base.
But the Center for Biological Diversity pointed to concerns about emissions of radon and potential air and groundwater pollution.
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“Phosphogypsum is the radioactive, carcinogenic and toxic residual waste generated by the production of phosphate-based fertilizers,” the brief said. “Phosphogypsum stacks contain high concentrations of the radionuclides uranium and radium. The presence of radium in the stacks causes them to release radon into the atmosphere, itself a radionuclide.”
In part, the group contends that the EPA should have to go through a formal rulemaking process before it could allow phosphogypsum to be used in road projects. That process also could result in legal challenges.
