EPA Sued on Fertilizer Ingredient

LINCOLN, Neb. (DTN) -- The EPA failed to assess potential harm to endangered species when setting water-quality standards for the heavy metal cadmium, a new lawsuit filed by the Center for Biological Diversity on Tuesday alleges. Cadmium is used in the production of and is found in phosphate fertilizers.

In a complaint filed with the U.S. District Court for the District of Arizona, the environmental group asked the court to declare EPA in violation of federal law for not completing an endangered species consultation when, in 2016, it adopted freshwater chronic criteria for cadmium under the Clean Water Act. The lawsuit asks the court to vacate the criteria and remand them back to EPA.

According to the lawsuit, the application of phosphate fertilizer releases 33% to 56% of the total anthropogenic cadmium to the environment.

"Cadmium is often detected in runoff from urban and industrial areas, and rivers are a major secondary source of cadmium to the ocean," the lawsuit said. "As of 2007, cadmium had been identified at 1,014 of the 1,669 most serious hazardous waste sites on the national priorities list. Of these 1,014 sites, cadmium was identified in surface waters at 354 sites, and in ground water at 675 sites."

Fertilizer contains cadmium because phosphate rock is used as a key feedstock in fertilizer production.

According to the Pacific Northwest Pollution Prevention Resource Center, cadmium is taken up by and stored in plants, accumulates in soil during a period of time, or leaches into groundwater or is carried into surface waters through irrigation runoff.

The lawsuit alleges EPA weakened water-quality criteria and then approved the adoption of the criteria in at least 18 states.

"EPA took this action without consulting with the services as required by Section 7 of the ESA," the lawsuit said. "This is a clear violation of EPA's obligations to engage the services in consultation to ensure EPA's action 'is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.'"

According to federal law, if a listed species or critical habitat is present, EPA is required to analyze the effects of a proposed action.

"If the agency concludes, in a biological assessment, that the action is 'not likely to adversely affect' listed species and the service lawfully concurs in writing, then the consultation process is completed," the lawsuit said.

"Conversely, if the action is 'likely to adversely affect' listed species, the agency must enter into 'formal consultation' with the services, a more extensive and protective process to consider the action's impacts."

A biological opinion is considered to be the most important aspect of a formal consultation, the lawsuit said.

"In a 2005 study that compared the acute toxicity of 63 heavy metals to a widespread crustacean found in both fresh and brackish water, cadmium was the most toxic," the lawsuit said.

"Cadmium bioaccumulates in all levels of the food chain in both aquatic and terrestrial organisms. In both freshwater and marine animals, cadmium can bioaccumulate to concentrations hundreds to thousands of times higher than in the water."

The Center for Biological Diversity said in a news release that, in 2016, EPA approved a 188% increase in allowable chronic freshwater exposure to cadmium despite warnings from the National Marine Fisheries Service.

"When the EPA nearly triples the allowable water pollution from a heavy metal it knows harms endangered fish and sea turtles, it's announcing that big oil and big ag are calling all the shots," said Hannah Connor, senior attorney for the CBD.

"The Biden administration needs to correct this terrible decision and make the EPA do its duty to stop the pollution of our rivers, lakes and oceans."

Todd Neeley can be reached at todd.neeley@dtn.com

Follow him on Twitter @DTNeeley

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