EPA: PCS violated hazardous-waste laws

Published 9:12 am Sunday, March 15, 2009

By Staff
Concerns include Aurora facility’s waste-water pond, plant byproducts and fertilizer
Staff Writer
PCS Phosphate is negotiating with the U.S. government after federal Environmental Protection Agency inspections found what the agency contends are hazardous-waste violations at the company’s Aurora facility.
The alleged violations, initially uncovered by the EPA during inspections in 2004 and 2005, concern a waste-water pond, plant byproducts and fertilizer produced at the mine-and-plant complex.
The inspections were part of a nationwide EPA initiative to enforce hazardous materials regulations at mineral-processing facilities.
Ross Smith, environmental manager of PCS Phosphate’s Aurora facility, emphasized that the mine uses a closed-loop system for the water in question.
He added that the system isn’t a hazard to employees, either.
An EPA Web site detailing the enforcement initiative that found the Aurora plant’s alleged violations said the agency doesn’t think closed-loop systems guarantee safety.
An EPA official declined to comment on the enforcement initiative, directing questions to the Web site.
EPA violation notices aren’t handed out lightly, said Bill Holman, director of state policy at Duke University’s Nicholas Institute for Environmental Policy Solutions. Holman is also a former executive director of the N.C. Clean Water Management Trust Fund.
But Holman said a limited monitoring agreement between the two companies is a good sign.
Holman didn’t comment on specifics of the report, because he was unable to review it sufficiently by press time.
Alleged violations
A notice of violation sent to PCS Phosphate in September 2005 outlines the six alleged violations. The Daily News obtained a report from the EPA inspections after the company mentioned potential regulatory liability in its Aug. 6, 2008 financial statement.
One accusation of violation stemmed from a sampling that found high levels of cadmium in granular fertilizer produced at the Aurora facility.
Several other notices of violation relate to water held in a cooling pond. The EPA contends the company put wastewater with too much cadmium into the pond.
According to the EPA, PCS also didn’t treat byproducts that are used in granular fertilizer production as hazardous waste, even though they showed high levels of cadmium, chromium and acidity.
The monitoring agreement signed by the company and the EPA in September reads, in part: “(Point No.) 45. The EPA contends, and PCS disagrees, that analytical sample results from the Inspections indicated that certain materials handled by PCS-Aurora at the Facility exhibited the hazardous waste characteristics of corrosivity and toxicity and that hazardous constituents were present in the environment.
According to the EPA report, PCS Phosphate under-reported to the state how much hazardous waste it generates each month because it didn’t count the wastewater and other byproducts as hazardous waste.
PCS disputes findings
Smith said the dispute isn’t about any changes PCS Phosphate has made at the facility, but about what is considered hazardous waste. The company doesn’t believe the water in the cooling pond or the byproducts are defined as hazardous waste.
He added later, “We’ve been operating this way for many, many years.”
Smith believes the waste is covered under a federal exception called the Bevill Amendment, he said. The Bevill Amendment allows mines to avoid classifying specific types of waste as hazardous.
In 1989, the EPA listed 20 substances it allows to be exempted under the Bevill Amendment, said Dave Ryan, a spokesperson at the EPA’s national office, in an e-mail.
But in the EPA’s report detailing the inspections, the agency specifically disagreed with Smith’s position regarding the Bevill Amendment because the company isn’t just creating phosphoric acid, but further refining it into extra-purified products.
But Smith disagrees: He contends that all PCS Phosphate’s phosphoric acid production is mineral processing and thus the Bevill Amendment protects it.
Smith also questioned the appropriateness of the report in specifying granular fertilizer as a hazardous material.
He said all of PCS Phosphate’s fertilizers are stringently tested.
PCS monitoring site
PCS Phosphate and the EPA entered into a legal agreement in September to monitor any contamination from the alleged violations.
The company emphasized that it already had some data the EPA wants it to gather.
The company submitted a plan to do the monitoring, but it’s still being reviewed by the EPA, Smith said. There is no time limit on the EPA’s review of the plan, according to the agreement signed in September.
If PCS Phosphate finds evidence of contamination, it will, among other things, test drinking wells on the land around the mine.
Talks between the mining company and government are ongoing.
In an e-mail, the U.S. Department of Justice (DOJ) declined to comment on discussions with PCS Phosphate.
PCS Phosphate’s parent company, PotashCorp, wrote in its annual financial report — which it filed with the Securities and Exchange Commission Feb. 26 — that it has been in talks with the EPA, the DOJ and various other agencies about alleged violations at the Aurora facility and at a facility in White Springs, Fla.