Originally Published as a letter from the Waterkeeper to the Desoto County Commissioners, 1/13/2021
Background
Florida’s water quality management structure is troubled at best, and should not be relied upon to produce improvements in water quality. FDEP’s water sampling has been all but shut down during the entire Rick Scott era, and is only now showing a slow awakening of activity. This is critical because agency sampling is required to trigger the process of assigning impaired status to a waterbody, which is followed by a Basin Management Action Plan (BMAP) and Total Maximum Daily Load (TMDL), typically representing significant reductions of contaminant inputs specific to that water body.
Personal communications with DEP leadership has informed us that not one single TMDL has been achieved in the state of Florida. The most frequent TMDLs seem to be for nutrient pollution or fecal indicator bacteria (E. coli or enterococci). Many of Florida’s Outstanding Florida Waters (OFW) are also impaired for one or more pollutants. Simply put, the system does not work.
The greatest source of nutrient pollution in the region’s waterways is agriculture, but there are no specific requirements for agriculture to adhere to, and instead there is a set of vague Best Management Practices (BMP), which are voluntary. The result of voluntary practices is that there is a powerful disincentive for any farm to incur the costs of rigorous pollution prevention when the neighbors are out-competing them by saving money and profiting from their more-polluting practices. 73% of the nutrient pollution entering Lake Okeechobee is from agriculture.
The Peace River does suffer from nutrient inputs as well, but they are not a major concern of this workshop. Today we are talking about Mosaic. Mosaic does emit nitrates into the region’s waterways, but to the best of my current knowledge, nothing like on the scale of the Kissimmee River basin.
For an unspecified number of years—decades, possibly—Mosaic mingled its toxic waste with its phosphogypsum waste and sent it up onto the gypstacks. Hence one cannot be certain whether the company’s phosphogypsum waste is toxic or not. This practice was the reason for a $2.1 billion mitigation settlement with the Obama-era EPA. Now, in Trump’s EPA, Mosaic is being allowed to sell that same phosphogypsum, toxic and radioactive, for road construction. But that is a matter for another forum. Today, Mosaic deals with its toxic waste by “blending”—their term—the toxics with millions of gallons of free potable Floridan Aquifer water until it meets the NPDES permit concentration limits, and can then be released. According to Mosaic’s web site 10% of the company’s water use allotment is dedicated to this process—as much as 10 million gallons per day.
It is important to note that while the resulting releases may be legal, they in no way reduce, recycle or treat the toxic materials. The same amount of toxic waste is released into the environment as is produced, but at concentrations low enough to meet permit requirements. Downstream sampling is usually inconclusive, because much of the time—but not all of the time—Mosaic manages to keep its toxic material concentrations within permit guidelines, hence the overall quantity of toxic material will not show up in water samples without undertaking flow analysis, to establish the overall mass of water, and hence the total mass of toxic material. This is not required by FDEP, and so does not get done.
The Clean Water Act
The Clean Water Act (CWA) is the law of the land when it comes to “maintaining the chemical, physical and biological integrity of the nation’s waters” (Muskie 1978). It’s original intent has been both affirmed and eroded by case law over the intervening decades. Legislation produces the framework of a new law, and the appropriate agencies are tasked with rulemaking—the myriad details that go into measuring the impacts of pollution, holding those responsible accountable, and enforcing violations.
The CWA has been through a number of renewals and amendments, some good, some that weaken the Act, but it is worthwhile to step back from the minutiae and look at the Legislative Intent. When a legal case has become deadlocked in contradicting complexities, it is often the Legislative Intent that determines the outcome.
Edmund Muskie (D) and William Ruckelshaus (R ) were the “fathers” of the Clean Water Act. In the Legislative Intent they make reference to “The original promise of clean water for the American people.” They refer to the national “goal to eliminate discharge of pollutants by 1985.” They state that the “public must be protected from cancer-causing pollutants and other toxic poisons.”
If one is to research the MSDS safety data pages for the toxic substances being sent downstream by Mosaic, legal or not, virtually all of them are carcinogens.
Polluting industries were required by the CWA to install “best available technology” for managing toxic discharges by 1983. One might ask EPA if Mosaic has been using best available technology. Best available technology within a reasonable time frame, or if a major advance in pollution prevention has been made.
Also from the Legislative History:
“…to restore and maintain the chemical, physical and biological integrity of the nation’s waters.”
“It is the national goal that the discharge of pollutants into the navigable waters be eliminated by 1985.”
The very name of the program that regulates and permits Mosaic’s million-pound toxic waste discharges is the National Pollution Discharge Elimination System (NPDES).
Finally, the Clean Water Act was intended to “…mean that streams and rivers are no longer to be considered part of the waste treatment process.”
Mosaic’s current practices are in striking contrast with the intent of the Clean Water Act, however sloppily it has been applied in practice by the agencies tasked with its enforcement.
Toxic Inputs
Mosaic’s fertilizer operations are a prolific source of many toxic pollutants. Please note that I use the word “toxic” literally, in its regulatory sense. The materials I am going to discuss are listed on the EPA’s Toxic Release Inventory (TRI).
Mosaic’s New Wales and Bartow operations normally discharge into the Peace River through a number of NPDES-permitted discharge outfalls. New Wales (partially), Bartow (partially) and Riverview (entirely) also discharge into the Alafia River and ultimately Tampa Bay. Both Rivers are important drinking water sources: the Alafia for Tampa and Hillsborough County, the Peace intermittently for Manatee, Sarasota and Charlotte Counties, including several major population centers.
This report will make no attempt to quantify the catastrophic releases than seem to occur every 2-4 years in this industry. Just keep in mind that in addition to toxic releases from normal fertilizer operations, there are a number of billion-gallon repositories of radioactive clays and millions upon millions of gallons of waste fuel oils. These clay settling areas (CSA) have on occasion breached, with fatal results on an ecosystem scale downstream in whatever tributary is closest. Both The Peace River (most recently 1972) and the Alafia (1996)have experienced total annihilation of all life on a number of occasions, requiring decades to recover partial ecosystem functions. Mosaic will insist that its new earthwork structures are much more reliable than older ones. The problem with that reassurance is the fact of many, many older CSAs, some unlined, in the Peace River, Alafia, and other watersheds. Recently, Mosaic obtained permits to ship the intermediate-stage process clays and fuel oil mixture from Hillsborough county to Hardee County, where they are in or closer to the Peace watershed.
Routine toxic releases into the Peace River occur on a daily basis from New Wales and Bartow facilities. Bartow has been struggling lately with poor demand and a persistent gypstack leak of radioactive, highly acidic process fluids. Looking at TRI data for New Wales alone is more than sufficient to demonstrate the magnitude of the problem. The following data come from the EPA’s Toxic Release Inventory (TRI) and can be viewed at https://enviro.epa.gov/enviro/P2_EF_Query.p2_report?FacilityId=33860MCFRTHIGHW&ReportingYear=2018&DocCtrlNum=&Opt=0&preport=2 Individual toxics can be selected for a closer look.
New Wales facility released, 100% to the environment, in the most recent year available:
5,200 lbs of Mercury in 2018 and the same in 2019.
22,102 lbs. of Chromium in 2016.
320,027 lbs. lead compounds in 2018.
490 lbs. Nitrates in 2018 (5,000 lbs. in 2009, 2,400 lbs. in 2015).
450,000 lbs. Ammonia in 2018.
2,700,000 lbs. Phosphoric Acid in 1998.
240,000 lbs. Vanadium in 2018 (recycled).
600,000 lbs. of Hydrogen Fluoride in 2018.
1,100 lbs. Polycyclic Aromatic Hydrocarbons in 2015.
975 lbs. of Zinc compounds in 2019.
There are others that I cannot quantify today, including Arsenic, Uranium and Radium, which are produced prolifically during fertilizer manufacturing, to the extent that until the early 1980s the 20-plus fertilizer plants then in operation each had a waste-processing stage to remove and produce yellowcake Uranium for weapons and nuclear fuel rods. What is happening to the Uranium today?
With the Vanadium not counted, Mosaic discharges, from a single fertilizer plant, 1,500,000 pounds of toxic waste per year into Florida’s drinking water resources.
In ten years, what happens to 15,000,000 lbs. of toxic waste? Many of the toxics are elements, and cannot break down. Is it building up in the sediments of the estuaries, where low levels of salinity cause the toxics to fall out of solution, and possibly accumulate on the bottom? How would this accumulation affect the ecological functions of the estuaries?
Fate of Contaminants
The fate of these contaminants will remain unknown until such time as an objective, independent and publicly-funded research initiative can be designed and implemented. Even if bottom sediments are polluted, what can be done about it? Since the pollution would have been sent downstream “legally,” there would have to be a Superfund-style cleanup, which would be highly controversial on any number of levels.
The best mitigation would be to stop the discharges. Require Mosaic to capture and process its toxic waste, instead of allowing the company to continue profiting from free downstream toxic waste disposal, at the expense of downstream receiving communities.
No one can say how much toxic waste will accumulate in Desoto County, other than in the eight CSAs that straddle the Horse Creek in Mosaic’s mine plan—a clear and present danger to human communities, drinking water and ecosystems. But the toxic wastes will continue to flow back into Desoto, “blended” with free groundwater and added to the Peace River water, to wind up flowing into the estuary and, presumably, accumulating in bottom sediments, with serious health, ecological and economic consequences.
Does Desoto County wish to become a partner in this semi-legal toxic waste disposal scam? It will be, if it issues permits to mine. No one can yet say what the legal ramifications will be. Charlotte County, including its BoCC, for instance, is vehemently opposed to receiving mine waste in its rivers and estuaries, and while it may not have enough clout to sue Mosaic, it can certainly force Desoto into litigation.
And the county must remember that a rezone will trigger the Bert Harris Act, and Desoto will never be able to stop the mine, if that is its choice. The Bert Harris Act has been a pernicious anti-home-rule law that has prevented a full generation of elected and employed managers from developing the way the citizens of the county want. Opportunistic developers, like Mosaic, soft-peddle the first rezones and variances they are asking for, “It’s just a rezone,” and once received, wield Bert Harris like a weapon, capable of bankrupting smaller counties, to force permit applications to be approved.
Conclusion
Mosaic’s Desoto Mine will result in degraded water quality. There can be no doubt of that assertion. A company whose foundational parts (IMC and Cargill) and current iteration are known for catastrophic safety and environmental lapses will degrade water quality on many levels. You can’t just strip down 50’ to 60’ over an entire 20,000-plus acre tract and reconfigure the land without regard for soil structure, topsoil, and suitability for native habitation without severely compromising water quality, both routinely and catastrophically.
The following quote is from the President’s Council on Environmental Quality third annual report:
“The common property resources—air and water—are not included in the market exchange. They are used as free ‘dumps’ for consumption and production residuals. But such dumping exacts social costs—in degraded air and water, impaired health, loss of fish and wildlife, loss of recreational opportunities and aesthetic values, and added costs of treatment necessary for downstream water users. Environmental problems stem largely from this fundamental failure of the economic system to take into account environmental costs.”
That was 1974. To think that our common-property resources are still being used as an open sewer by a corporation that provides little or no benefit to the citizens of Florida is intolerable.