20080868 Ver 2_Washington Daily News_20090316

[Fwd: EPA: PCS violated hazardous-waste laws - Washington]
Subject: [Fwd: EPA: PCS violated hazardous-waste laws - Washington]
From: Coleen Sullins <[e-mail]>
Date: Mon, 16 Mar 2009 08:55:40 -0400
To: Matt Matthews <[e-mail]>, John Dorney <John. Domey@ncmail. net>, Chuck
Wakild <[e-mail]>
fyi
E-mail is a public record and e-mail messages
are subject to public review and may be disclosed
to third parties. E-mail is subject to the Public
Records Law and applicable record retention schedules.
Subject: EPA: PCS violated hazardous-waste laws - Washington
From: Diana Kees <[e-mail]>
Date: Mon, 16 Mar 2009 08:46:22 -0400
To: Diana Kees <[e-mail]>, Jamie Kritzer <[e-mail]>, Manly Wilder
<[e-mail]>, Robin W Smith <Robin. W. [e-mail]>, Mary P Thompson
<Mary. P. Thompson@ncmail. net>, Steve Wall <Steve. Wall @ncmail.net>, Jill Pafford
<Jill. Pafford@ncmail. net>, Linda Pearsall <[e-mail]>, Chris Russo
<[e-mail]>, Melba McGee <[e-mail]>, Elizabeth Biser
<[e-mail]>, Bill Crowell <[e-mail]>, Cathy Hardy
<Cathy. Hardy@ncmail. net>, Rod Davis <Rod. Davis@ncmail. net>, Lisa Riegel
<[e-mail]>, David Knight <David. Knight@ncmail. net>, Amy Simes
<Amy. Simes@ncmail. net>, Dee Freeman <[e-mail]>, Susan Massengale
<[e-mail]>, Coleen Sullins <[e-mail]>, Chuck Wakild
<[e-mail]>, DEXTER MATTHEWS <[e-mail]>,
Cathy Akroyd <[e-mail]>, Linda Culpepper <[e-mail]>
EPA: PCS violated hazardous-waste laws
Concerns include Aurora facility's waste-water pond, plant byproducts and fertilizer
By TED STRONG
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
1 of 5 3/16/2009 9:07 AM
[Fwd: EPA: PCS violated hazardous-waste laws - Washington]
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.
"EPA has hereby determined that there may be a substantial hazard to human health or the
environment due to the presence of hazardous wastes and constituents and potential releases of
hazardous wastes and constituents from the PCS-Aurora Facility," reads an agreement signed in
September by both PCS Phosphate and EPA officials.
Ross Smith, environmental manager of PCS Phosphate's Aurora facility, emphasized that the mine
uses a closed-loop system for the water in question.
"There's not an off-site hazard," he said.
He added that the system isn't a hazard to employees, either.
"The system has been in place for many years, and there's no health effect," he said. "I don't see any
health effect."
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.
"The (national enforcement) strategy has a special emphasis on mineral-processing facilities that
dispose of hazardous wastes in surface impoundments," reads the national priority statement for the
enforcement initiative.
"EPA has found a growing body of evidence showing that even if a portion of the hazardous waste is
continuously recycled on-site, the surface impoundments leak and cause widespread environmental
damage."
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.
"If PCS has been notified, it's a serious matter," he said.
But Holman said a limited monitoring agreement between the two companies is a good sign.
"It sounds like the company and EPA are working to address the issues of concern," he said.
Holman didn't comment on specifics of the report, because he was unable to review it sufficiently by
press time.
Alleged violations
2 of 5 3/16/2009 9:07 AM
[Fwd: EPA:,PCS violated hazardous-waste laws - Washington]
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.
"(Point No.) 46. EPA contends, and PCS disagrees, certain materials handled by PCS-Aurora at the
Facility are solid wastes and hazardous wastes."
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.
"We believe the way that we're processing water, we're in compliance with all of the rules," he said.
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.
"Two of these twenty are: process wastewater from phosphoric acid production and phosphogypsum
from phosphoric acid production," he wrote.
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.
"This is chemical processing, not mineral processing," the EPA inspection report reads.
3 of 5 3/16/2009 9:07 AM
[Fwd: EPA: PCS violated hazardous-waste laws - Washington]
"All chemical processing that generates a hazardous waste is subject to RCRA (hazardous materials)
requirements," Ryan wrote.
But Smith disagrees: He contends that all PCS Phosphate's phosphoric acid production is mineral
processing and thus the Bevill Amendment protects it.
"They have an interpretation, and we do as well," Smith said.
Smith also questioned the appropriateness of the report in specifying granular fertilizer as a hazardous
material.
"It appears that the standard they're comparing it to is a water (quality) standard," he said.
He said all of PCS Phosphate's fertilizers are stringently tested.
"We're going to meet the standards that are effective for our product," he said.
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.
"There's been a lot of monitoring that's gone on," Smith said.
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.
"They've had it for months," Smith said.
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.
"We are still looking into our options to resolve that situation," said EPA spokesperson Dawn
Harris-Young, with the agency's regional office in Atlanta.
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.
4 of 5 3/16/2009 9:07 AM
[Fwd: EPA:.PCS violated hazardous-waste laws - Washington]
"We are uncertain if any resolution will be possible without litigation, or, if litigation occurs, what the
outcome would be," reads the company's report. "At this time, we are unable to evaluate the extent of
any exposure that the Company may have in these matters."
Diana Kees
Communications Director
N.C. Dept. of Environment and Natural Resources
16o1 MSC, Raleigh, NC 27699-i6oi
[phone]; fax [phone]
E-mail correspondence to and from this address may be subject to the
North Carolina Public Records Law and may be disclosed to third parties.
EPA: PCS violated hazardous-waste laws - Washington.eml
Content-Type: message/rfc822
Content-Encoding: 7bit
5 of 5 3/16/2009 9:07 AM