December 8, 2010 Contact: Kathy Mathers

Shortcut Criteria are Not Scientifically Defensible

Washington, D.C. – The Fertilizer Institute (TFI) filed a legal challenge late yesterday to the Environmental Protection Agency’s (EPA) rule to establish numeric nutrient criteria for nitrogen and phosphorus for waters in the state of Florida. The lawsuit (The Fertilizer Institute and White Springs Agricultural Chemicals, Inc. v. United States Environmental Protection Agency) was filed in the United States District Court for the Northern District of Florida Pensacola Division and comes on the heels of a legal challenge also filed yesterday to EPA’s rule by the State of Florida. White Springs Agricultural Chemicals, Inc. has operations in Florida and is a subsidiary of TFI member Potash Corporation of Saskatchewan Inc.

In its complaint, the lawsuit contends that:

  • EPA’s Final Rule is unlawful and should be vacated because it establishes water quality criteria that ignore causation, regulate water bodies that are achieving their designated use, and restrict nutrients that do not cause impairment;
  • By using simple and overly broad statistical principles EPA’s rule will classify a certain percentage of water bodies as impaired when they in fact are not;
  • EPA’s new criteria usurp Florida’s statutory authority to develop standards and are fundamentally in conflict with Florida’s existing efforts to implement narrative water quality standard for nutrients;
  • EPA unlawfully ignored the requirements that water quality criteria be based on true biological impairment and instead established numeric criteria for nitrogen and phosphorus in water bodies where they would not actually cause such an imbalance;
  • EPA’s shortcut numeric criteria are not based on sound scientific rationale or scientifically defensible methods because:
    • They would unlawfully restrict nitrogen and phosphorus in lakes, streams and springs that are not impaired;
    • In other instances, where the lakes, streams or springs are impaired, EPA’s standards will unlawfully regulate nutrients that are not causing the impairment;
  • EPA’s regulation wrongly assumes that nitrogen and phosphorus levels above EPA’s numeric criteria will cause algal growth and thus impairment; and
  • EPA has ignored its own Science Advisory Board and set nitrogen standards when in fact nitrogen is not limiting (and thus not responsible) for impairment in fresh water bodies.

The federally directed nutrient rule signed by EPA Administrator Lisa Jackson on Nov. 14, 2010, and published in the Federal Register on Dec. 6 would replace the narrative nutrient criteria which were already being applied by Florida’s Department of Environmental Protection (DEP) with arbitrary standards.

About the Fertilizer Institute

The Fertilizer Institute represents the nation’s fertilizer industry. Producers, wholesalers, retailers and trading firms which comprise its membership are served by a full time Washington, D.C., staff in various legislative, educational and technical areas as well as with information and public relations programs.