G&K attorney Chris Leason penned a comment in the September 2022 issue of the Environmental Law Reporter responding to a prior article asserting the need for additional regulation of the U.S. phosphate fertilizer industry. Chris’ comment discusses the significant agricultural benefits of phosphate fertilizers, EPA’s thorough review of the industry through several rulemakings (all concluding that additional regulation is unnecessary), and the significant corpus of federal and state regulations governing the industry.
Chris is uniquely qualified to prepare such an article given his 29-year representation of The Fertilizer Institute – the national trade association of the fertilizer industry – and national and international clients on complex environmental matters. Before law school, Chris was a practicing chemical engineer, which today enables him to tackle difficult and complex environmental issues and interact with technical resources to provide cost-effective solutions for his clients.
“Revisiting the Fertilizer Industry: A Response to Lopez”
In a recent article in these pages, Jaclyn Lopez with the Center for Biological Diversity (CBD) asserts the U.S. Environmental Protection Agency (EPA) abdicated its statutory authority under the Resource Conservation and Recovery Act (RCRA) to regulate phosphogypsum (PG) and the process wastewater from phosphoric acid production as hazardous wastes. Based on purported risks associated with the management of these two solid wastes, her article advocates for additional regulation under both RCRA and the Toxic Substances Control Act (TSCA).
Although the article identifies Lopez as the co-author of a rulemaking petition pending with EPA, it fails to discuss, much less mention, EPA’s thorough review and denial, nine months prior to the article’s publication, of the TSCA relief requested pursuant to the petition’s invocation of TSCA §21 (citizens’ petitions). The article, like the petition on which it is modeled, is built on a cursory and flawed evaluation of (1) EPA’s extensive review of PG stacks and process wastewater pursuant to its RCRA “Bevill Amendment” mandate; (2) the thorough work and conclusions of the TSCA Phosphoric Acid Waste Dialogue Committee (TSCA Dialogue Committee), established after EPA’s 1991 RCRA regulatory determination to evaluate PG and process wastewater risk management strategies; and (3) the comprehensive federal and state regulations governing PG stacks adopted since EPA’s 1991 RCRA regulatory determination. It also fails to acknowledge the significant negotiated measures designed to enhance protection of human health and the environment above and beyond applicable federal and state law, adopted by industry through EPA’s RCRA National Enforcement Initiative for Mining and Mineral Processing (MMPI).
As important context, this Comment discusses the significant agricultural benefits afforded by phosphate fertilizers in Part I. Part II then summarizes EPA’s thorough review of PG stacks and process wastewater pursuant to the Bevill Amendment, culminating in the Agency’s 1991 regulatory determination, and the detailed evaluation of potential phosphoric acid production process changes performed thereafter by the TSCA Dialogue Committee. Part III explains why a “revisitation” of the 1991 regulatory determination is proscribed, and unnecessary in light of the substantial federal and state regulations applicable to PG stacks, and Part IV discusses the significant risk mitigation measures being adopted through EPA’s MMPI. Finally, Part V responds to Lopez’s assertions regarding the need to regulate PG and process wastewater under TSCA, environmental justice (EJ) concerns, and consideration of PG stacks in National Environmental Policy Act (NEPA) evaluations for phosphate mines.