Federal Court Approves Testing of Radioactive Materials in Florida Road Construction

A federal appeals court has given the green light to test the use of a radioactive material to build a road in Florida. A three-judge panel on the U.S. Court of Appeals for the Eleventh Circuit unanimously backed the Environmental Protection Agency’s approval of Mosaic Fertilizer’s use of phosphogypsum — a radioactive byproduct of fertilizer — to build a road.The case stems from a 2020 decision by the EPA to allow the use of phosphogypsum in road projects, the first time the agency had made such a decision. In 2022, Mosaic sought approval to use phosphogypsum for a “small-scale road lot project on private land.” And in 2024, the EPA approved the plan.Phosphogypsum is seen as a widely accessible, cost-effective material for road construction as millions of tons are produced annually as a byproduct of the production of fertilizer. And when it is mixed with other additives, it can be used to build a durable road that is less likely to crack under heavy truck traffic than alternatives.An environmental group, the Center for Biological Diversity, sued to stop the test. The plaintiffs argued that the EPA’s approval of the project was “arbitrary and capricious,” and said the agency did not properly consider that Mosaic’s property could be used for residential purposes in the future. The lawsuit also raised concerns that Moscaic’s test could pave the way for the “full scale” approval of phosphogypsum in road projects.However, on Wednesday, the Eleventh Circuit disagreed, saying, “The Center’s final argument is that vacatur or remand is necessary because the Road Project generally will serve as an ‘intermediate step between laboratory testing and full-scale’ approval of phosphogypsum in road construction, and these potential future regulatory amendments will be tainted by the EPA’s arbitrary and capricious assessment of the Project. This sweeping argument fails.”“Because the approval of Mosaic’s Road Project does not directly bear on potential future projects, which will be subject to separate Agency action and independent analysis, we can discern no basis to vacate or remand the Agency’s decision,” the court said. The judges dismissed concerns that Mosaic’s property could be used for residential purposes as they noted that the land already contains radioactive materials.Phosphogypsum can only be deposited in open-air stacks, or mounds — though the EPA can permit its use in projects. The EPA warns that prolonged exposure to the radon contained in phosphogypsum can lead to lung cancer. The Eleventh Circuit noted that radon is the second leading cause of lung cancer; however, the judges said that the risk of construction workers developing fatal cancer is less than 2 in 1 million, and for nearby residents it is less than 1 in 1 million. “Thus, even for construction workers experiencing the highest risk levels, their risk of developing fatal cancer is at least 45 times lower than the Center’s preferred risk threshold of 9 in 100,000,” the court said. The ruling is a win for Mosaic and will let the company carry out its test. The judges did say, however, that the company must conduct sampling annually.

Federal Court Approves Testing of Radioactive Materials in Florida Road Construction

Federal Court Approves Testing of Radioactive Materials in Florida Road Construction

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