Phosphogypsum, Local Ordinance Bills Signed

By Jim Turner

The News Service of Florida

     TALLAHASSEE — Gov. Ron DeSantis on Thursday signed a controversial measure that directs transportation officials to determine if a waste byproduct from the fertilizer industry could be used in building roads.

The measure (HB 1191), which drew opposition from environmental groups, will require the Florida Department of Transportation to study the use of phosphogypsum in road-construction “aggregate” material. The department will have to finish the evaluation by April 1.

Phosphogypsum includes radioactive elements and is stored in huge stacks. It drew heavy attention in 2021 when about 215 million gallons of wastewater were discharged into Tampa Bay to avoid a potentially catastrophic breach at the closed Piney Point phosphate plant in Manatee County.

“Our goal is to hopefully identify this as a suitable road base so that we don’t continue to just stack it and have these things that could potentially become Piney Point, and that we’re able to pull out some bad stuff and use it, you know, for a road base that’s safe,” Senate bill sponsor Jay Trumbull, R-Panama City, said while debating the proposal on May 1.

But Elise Bennett, an attorney who is Florida and Caribbean director for the Center for Biological Diversity, issued a statement Thursday that blasted the bill.

“By signing off on this reckless handout to the fertilizer industry, Gov. DeSantis is paving the way to a toxic legacy generations of Floridians will have to grapple with,” Bennett said. “This opens the door for dangerous radioactive waste to be dumped in roadways across the state, under the guise of a so-called feasibility study that won’t address serious health and safety concerns.”

In 2021, the U.S. Environmental Protection Agency barred the use of phosphogypsum in road construction. A state Senate staff analysis said in April that “until such time as the EPA approves such use, the FDOT (Florida Department of Transportation) would be prohibited from any use of phosphogypsum as a road construction aggregate material. Such use could only occur if the EPA issues an approval, and only under the conditions imposed by the EPA.”

Trumbull said the material is already used in countries including Japan, Australia, Canada and Spain.

Meanwhile, DeSantis on Thursday signed a bill (SB 170) that could boost legal challenges to local ordinances. Among other things, the bill would require local governments to suspend enforcement of ordinances that are challenged legally. It would not apply to several types of ordinances, such as measures needed to comply with federal or state laws or regulations.

When the bill was debated May 3 on the House floor, Rep. Robbie Brackett, a Vero Beach Republican who sponsored the House version, said local officials don’t have a right to “impose onerous ordinances on other people.”

“What this does is it allows the stakeholders of that community a vehicle to take action and stand against local governments that go too far,” said Brackett, a former Vero Beach mayor.

But critics said the bill, which will take effect Oct. 1, could limit local governments’ ability to address issues ranging from water quality to climate change.

Rep. Anna Eskamani, D-Orlando, said progressive issues could be “at risk, simply if an individual business owner doesn’t like it.”

Under the bill, plaintiffs who successfully challenge ordinances in court could receive up to $50,000 in attorney fees and costs.

The bill was supported by groups such as the Florida Chamber of Commerce, Associated Industries of Florida, the Florida Retail Federation, the Florida Home Builders Association, Florida Realtors, the Florida Restaurant & Lodging Association, the Florida League of Cities and the Florida Association of Counties.

DeSantis vetoed a somewhat-similar measure last year, saying it needed to be more targeted.

The 2022 proposal would have allowed businesses to sue cities and counties if ordinances caused at least 15 percent losses of profits. In a veto letter, DeSantis took issue with the bill being “broad and ambiguous,” which he said could result in “unintended and unforeseen consequences and costly litigation.”