The U.S. Environmental Protection Agency has drawn a lawsuit and an administrative challenge over its decision to allow use of a radioactive byproduct of fertilizer production to pave roads.
The agency quietly approved the practice in October without public input, as relayed at the time by Phoenix columnist Craig Pittman.
Now the Center for Biological Diversity, along with unions and public health groups, are seeking to overturn the decision.
“This shameless, political favor to the fertilizer industry will have devastating, long-term environmental and human health effects,” Jaclyn Lopez, Florida director at the center, said in a written statement.
“Americans should be outraged that the agency charged with protecting us from harm has green-lighted the construction of radioactive roads.”
The organizations filed a petition asking the EPA to reconsider the rule change and the U.S. Court of Appeals for the District of Columbia to review it.
At issue is phosphogypsum, waste left when fertilizer companies process phosphate rock. As Pittman explained, the EPA had banned its use for construction because it emits potentially dangerous levels of radioactivity similar to that of uranium mill tailings.
Consequently, the industry has been obliged by regulation to stack the material in huge piles up to 200 feet high.
In changing its mind about practical applications for the material, the EPA cited an analysis by The Fertilizer Institute, an industry group.
Florida won’t see radioactive roads right away, judging by emailed remarks from Florida Department of Transportation communications director Beth Frady.
“The material you reference is not on the department’s approved material list, is not currently being used by FDOT maintenance, and there are no plans for its future use at this time,” she wrote.
In its administrative challenge filed on Dec. 18, the center, backed by organizations including the Sierra Club, ManaSota-88, North America’s Building Trade Unions, and Public Employees for Environmental Responsibility, accused EPA Director Andrew Wheeler of violating the Administrative Procedures Act, which requires advance public notice of regulatory changes and a period for public comment.
‘Arbitrary and capricious’
Additionally, the document argues the rule change was “arbitrary and capricious because it failed to fully consider the risks or provide a rational explanation for reversing its previous conclusions that using [phosphogypsum] in road construction presents an unreasonable risk to public health, violated the National Environmental Policy Act and/or failed to provide a functional equivalent of an environmental analysis, and was issued without the requisite consultation under the Endangered Species Act for impacts to listed species and their critical habitat.”
In approving the new policy, Wheeler noted that the use of phosphogypsum in roads would be subject to strict guidelines controlling the proportion of the material used plus state and local regulation. Builders would have to maintain the roads and they couldn’t be abandoned to other uses.
The agency concluded that using the stuff to build roads “is at least as protective of public health as disposal of [it] in stacks.”
“Allowing the reuse of phosphogypsum shows EPA’s commitment to working with industry in a way that both reduces environmental waste and protects public health,” Wheeler said at the time.
“The approval of this request means that phosphogypsum, which already requires significant engineering and regulatory controls to be disposed of in stacks, can now be put to productive use rebuilding our nation’s infrastructure. This demonstrates President Trump’s commitment to ‘win-win’ environmental solutions.”
The press release the agency issued announcing the shift also quoted The Fertilizer Institute President and CEO Corey Rosenbusch.
“TFI strongly supports and appreciates EPA’s science-based review and decision to allow the limited use of phosphogypsum, a by-product of phosphate fertilizer manufacturing. This decision strengthens the industry’s sustainability efforts and long term environmental stewardship,” he said.
According to the EPA, phosphogypsum is what you get when you dissolve phosphate rock in acid to extract fertilizer. It mostly contains gypsum, but also naturally occurring uranium, radium, and thorium, which eventually degrade into radioactive radon gas.
The phosphogypsum stacks, of course, carry their own risks — four years ago, for example, a sinkhole opened beneath a Florida stack owned by The Mosaic Co. and hundreds of millions of gallons of polluted water drained into the Floridan Aquifer.
They loom above the landscape in 12 states but most — about 25 — are in Florida. The coalition said that in Florida they contain about 1 billion tons of material and that the industry adds another 30 million tons each year.
In their administrative protest, the organizations contend the EPA ignored its own expert consultant, who determined that using the material to build roads would expose construction workers and members of the public to dangerous radiation. Protected plants and animals also would be at risk, they added.
“This is a slap in the face to the Gulf communities and workers who will be most impacted by this decision,” said Cynthia Sarthou, executive director of Healthy Gulf, another organizer challenging the policy.
“Building radioactive roads is about the dumbest idea I’ve heard of in my 30 years in the environmental protection field. We won’t let this stand,” she said.
“The distribution of phosphogypsum will unnecessarily expose workers, the environment and the general public to otherwise avoidable radiation exposure. To allow the use of phosphogypsum as a construction material is the height of irresponsibility,” said Glenn Compton, chairman of ManaSota-88.