An environmental group this week pushed back against arguments by Mosaic Fertilizer that a federal appeals court should end a legal battle about the use of phosphogypsum, a radioactive byproduct of the phosphate industry, in a Polk County road project.
The Center for Biological Diversity, in a 15-page response filed at the 11th U.S. Circuit Court of Appeals, disputed Mosaic’s arguments that the case is “moot” because the company finished building parts of the road that included phosphogypsum.
The environmental group in February challenged the U.S. Department of Environmental Protection’s approval of the pilot project, which is at Mosaic’s New Wales facility. Center for Biological Diversity lawyers wrote in Monday’s response that the group is “not challenging a construction-phase permit with conditions that end at the moment of construction.”
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“Mosaic’s claim that the construction of this road defeats judicial review is rebutted by the presence of post-construction requirements in the (EPA’s) notice of approval, as well as the availability of relief that could protect the center’s members from additional groundwater contamination and radiation-related harms,” the response said. “Mosaic’s brazen attempt to evade judicial review of this first-of-its-kind project should be denied.”
The issue of using phosphogypsum in road-building has long been controversial, as opponents have pointed to potential cancer risks from the substance, which is typically stored in huge stacks, known as “gypstacks.” In challenging the project, the Center for Biological Diversity has cited concerns about radon emissions and potential air and groundwater pollution.
Mosaic, a major player in the phosphate industry, intervened in the lawsuit to support the EPA. In a Dec. 5 motion arguing that the case should be dismissed as moot, Mosaic said it started construction on the project Aug. 25 and finished the parts of the road that involved phosphogypsum on Nov. 4.
“Although Mosaic is still working to complete some ‘control’ sections of the road, those sections do not use any phosphogypsum — they are constructed from common road materials,” the motion said. “Mosaic and University of Florida scientists and engineers will also test and monitor the road base as described in the (EPA) approval.”
Mosaic attorneys added, “This action (lawsuit) is now moot because construction of the phosphogypsum portions of the pilot road project is complete.”
EPA and Mosaic court filings said the project was limited to a 3,200-foot road and included phosphogypsum from a stack on the New Wales property. They have disputed the Center for Biological Diversity’s underlying arguments about the project, with Mosaic saying in a September brief that the group’s “real concern is that the pilot will serve as a gateway to broader beneficial use of phosphogypsum in road base.”
Phosphogypsum includes radium, which decays to form radon gas. Radium and radon can cause cancer, and the giant stacks are used to try to limit public exposure to radon emissions, according to information on the EPA’s website
In the document filed Monday, Center for Biological Diversity lawyers wrote that the EPA approval of the road project went beyond the construction phase. It said the lawsuit could lead to such things as additional monitoring requirements.
“(The EPA’s) approval contains conditions, which Mosaic concedes apply on an ongoing basis, intended to address harms to public health and the environment from using material that emits a hazardous air pollutant to construct a ‘pilot’ road,” the group’s lawyers wrote. “Common sense, the (federal) Clean Air Act, and the relevant case law demonstrate that petitioner Center for Biological Diversity’s challenge to EPA’s approval is not moot upon construction of the road. Each claim brought by the center, and each remedy sought, remain available to mitigate the present and ongoing harms to the center’s members. Yet Mosaic attempts to strain the facts and misconstrues the center’s claims to suggest otherwise.”
