Phosphate Companies and EPA’s Toxic Release Inventory

The EPA established the Toxics Release Inventory (TRI) under the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), which was enacted to promote emergency planning, to minimize the effects of chemical accidents and to provide the public with information on releases of toxic chemicals in their communities. The inventory required producers of over 300 chemicals considered to be toxic under the following criteria to report releases to air and water of these chemicals both on- and off-site of their production facilities.

The criteria for a chemical to be included (from EPCRA section 313(d)(2)) are:

    (A) The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases.
    (B) The chemical is known to cause or can reasonably be anticipated to cause in humans-

      (i) cancer or teratogenic effects, or
      (ii) serious or irreversible-

        (I) reproductive dysfunctions,
        (II) neurological disorders,
        (III) heritable genetic mutations, or
        (IV) other chronic health effects.
    (C) The chemical is known to cause or can reasonably be anticipated to cause, because of

      (i) its toxicity,
      (ii) its toxicity and persistence in the environment, or
      (iii) its toxicity and tendency to bioaccumulate in the environment, a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section.

EPA refers to the section 313(d)(2)(A) criterion as the “acute human health effects criterion,” the section 313(d)(2)(B) criterion as the “chronic human health effects criterion,” and the section 313(d)(2)(C) criterion as the “environmental effects criterion.”

Phosphoric acid, a principal product of the phosphate fertilizer industry, was included in the original list of toxic chemicals requiring reporting for the inventory. The inclusion of phosphoric acid led to several phosphate fertilizer complexes being listed in the annual top ten facilities in amount of toxic chemicals released.

In the normal phosphoric acid production process, large amounts of phosphoric acid are released with the plant process water into holding ponds on-site for re-use as cooling water in the phosphoric acid plant. These releases had to be reported under the TRI, but for the most part, never left the site.

In 1990, The Fertilizer Institute (TFI) filed a petition with the EPA to de-list phosphoric acid from the list of toxic chemicals. The petition claimed that phosphoric acid did not meet any of the three listing criteria.

The EPA agreed that it did not meet the “acute human heath effects” criterion because it is a relatively weak acid and is not expected to exist beyond facility boundaries at a pH that will cause acute human effects. The EPA also agreed that evidence did not support inclusion under the “chronic human health effects” criterion.

In January of 1998, EPA denied TFI’s petition on the basis that phosphoric acid, as a source of phosphate, would cause eutrophication, or nutrient enrichment when released into certain water bodies, resulting in extreme algal blooms and subsequent damage to the ecosystem and thus it met the “environmental effects” criterion.

In April 1998, TFI challenged EPA’s denial of their petition in United States District Court arguing that phosphoric acid caused eutrophication of certain water bodies, not because of its toxicity, but rather because of its nutrient value. These effects can arise through the release of any nutrient source (ie. fertilizers, animal waste, etc.) into the same water body. The District judge in the case ruled in favor of TFI. The EPA did not challenge this ruling and agreed to de-list phosphoric acid for the 1999 TRI reporting year.

The differences before and after the de-listing are evident. The 1998 TRI showed six phosphoric acid plants among the top ten facilities in total pounds released in Florida and phosphoric acid was ranked the number two chemical in total pounds released in Florida. None of the phosphoric acid releases were off-site. The 1999 TRI showed only one phosphate facility in the top ten because of the de-listing of phosphoric acid.