November 10, 2021 Mr. Herbert R. Donica Donica Law Firm, P.A. 238 E Davis Blvd, Suite 209 Tampa, FL 33606 Via E-mail to herb@donicalaw.com Via U.S. Mail to Address Above Other Recipients Identified Below RE: REQUEST TO UNDERTAKE A ROBUST, REPRESENTATIVE, AND

TRANSPARENT SAMPLING EFFORT AT PINEY POINT Dear Mr. Donica, We write today about the present situation at the former Piney Point phosphate plant and the pending application to inject billions of gallons of process wastewater from that site just below the aquifer that millions of Floridians rely upon for drinking water and crop irrigation. On behalf of our collective members that reside in Florida, we respectfully request that you, in your role as receiver on behalf of HRK Holdings, LLC, undertake a robust, representative, and transparent sampling effort to confirm that the process wastewater proposed to be disposed of via deep well injection does not contain any hazardous constituents above the regulatory limits identified in 40 C.F.R. § 261.24, Table 1. As you know, in April of this year Manatee County submitted an application1 to construct an underground injection well to dispose of the process wastewater stored at Piney Point. The permit is presently under review with the Florida Department of Environmental Protection. The source of the wastewater proposed to be injected includes “the water stored in the Piney Point Facility gypsum stacks (gyp-stacks) and the phreatic water collected by the underdrain system.” Permit Application, Page 2-1. The permit application admits that Manatee County does not know the precise geologic strata in the location of the proposed well, and instead is guessing that the “anticipated geologic strata” is similar to a well located five miles away. The permit application further admits that Manatee County does not know the precise location where the underground drinking water source begins or ends.

More troubling, the permit application makes explicit that process wastewater from Piney Point will not be treated to reduce pollution in the wastewater to levels consistent with Florida’s water quality standards prior to injection. To the contrary, the application plainly states that “[t]he pre-treatment strategy is not to reduce constituents to any regulatory standard,” but rather “to assure chemical compatibility with the injection zone to avoid or limit the potential for lugging of the formation to the degree possible.” Permit Application, Section 2, Page 2-1. Indeed, “the type and level of treatment is yet to be determined,” and no treatment plant has been proposed or designed as of the date of this letter.

1 DEP UIC Permit No. 0322708-002-UC/1I.

The permit application itself is based on a series of assumptions that have not yet been evaluated or proven. For instance, the permit application identifies the following “assumptions and qualifiers[:]”

‐ The injection zone is homogenous and isotropic. ‐ No leakance occurs between the overlying and underlying geologic units. ‐ No density differences exist between the injected water and the native groundwater. ‐ The direction, magnatude [sic], and temporal variations of the groundwater gradient are not accounted for. ‐ The cylindrical volume calculation is used only to provide a gross estimation of the average distance the injected water may extend laterally from the injection well. ‐ Assumes collection from underdrains is 0.15 MGD and completed in 40 years.

Permit Application, Appendix A. The final assumption concerning the underdrains is critically important. The application projects that, within the current phosphogypsum stacks, there are 500,000,000 gallons of process wastewater. But within the stacks, the application projects that an additional 2,190,000,000 gallons of phreatic wastewater will need to be injected over the course of 40 years at a rate of 0.15 million gallons per day. Id. To date, there is no publicly-available water quality sampling of any portion of the projected 2,190,000,000 gallons of phreatic wastewater proposed to be injected. The only available sampling related to that phreatic wastewater comes from the LWPS, which is diluted with precipitation and not representative of the total volume of phreatic wastewater proposed to be injected into the ground over a 40-year process.

Under Florida law, it is unlawful to dispose of pollution that is considered hazardous under applicable federal statutes. F.A.C. 62-528.400(1) (prohibiting the injection of hazardous waste through any well or septic system “except for those Class 1 wells permitted to inject hazardous waste as of January 1, 1992”); F.A.C. 62-730-30(1) (adopting by reference the provisions of 40 C.F.R. Part 261, concerning the definition of hazardous waste under the Resource Conservation and Recovery Act). While “phosphogypsum from phosphoric acid production” is typically exempt from regulation under RCRA as hazardous wastes by operation of the “Bevill Amendment,” 40 C.F.R. § 261.4(b)(7)(ii)(D), the production of fertilizer at Piney Point utilized a diammonium phosphate process, which is outside the scope of the Bevill Amendment.2 See Exhibit A hereto (excerpted diagrams of Piney Point operations from previous

2 In fact, the United States recently settled two lawsuits against fertilizer manufacturers J.R. Simplot Company and Mosaic Fertilizer LLC. In those lawsuits, the United States alleged that defendants unlawfully disposed of hazardous wastes from monoammonium and/or diammonium phosphate production processes into phosphogypsum stacks, and that wastes generated from monoammonium and/or diammonium phosphate production processes are not within the scope of the Bevill amendment under 40 C.F.R. § 261.4(b)(7) & (b)(7)(ii)(D). See U.S. v. J.R. Simplot Company & Simplot Phosphates, LLC, Case No. 2:20-cv-00125-NDF, Dkt. No. 10 (D. Wyo. 2020) (Consent Decree); U.S. v. Mosaic Fertilizer, LLC, Case No. 2:15-cv- 04889, Dkt. No. 2-1 (E.D. La. 2015) (Consent Decree).

owners, showing “Diammonium Phosphate Pond” and “DAP Plant”). Furthermore, the deposition of dredge materials from the Port Manatee expansion project onto the compromised HDPE liners at Piney Point also vitiated any possible hazardous waste exemption, because the comingling of that dredged material with legacy process wastewater created an entirely new waste that is not exempt under 40 C.F.R. § 261.4.

Because the process wastewater is not exempt from the definition of hazardous waste under the Resource Conservation and Recovery Act, the provisions of 40 C.F.R. § 261 Part C apply. That federal regulation states that solid wastes which contain any of the contaminants found in Table 1 to 40 C.F.R. § 261.24 “at the concentration equal to or greater than the respective value given in that table” are deemed hazardous wastes. Id.; see also 40 C.F.R. § 261.20(a).

Relevant here, Table 1 identifies a number of contaminants that are routinely found in wastewater sampling at Piney Point, including arsenic, cadmium, chromium, lead, mercury, silver, and selenium. Recent sampling from the OGS-N from April 20, 2021, showed levels of selenium that exceed the hazardous waste threshold identified in Table 1 by two orders of magnitude. Compare 40 C.F.R. § 261.24, Table 1 (Selenium Regulatory Level, 1.0 mg/L) with Exhibit B hereto (April 20, 2021, wastewater sampling from OGS-N, showing 103 mg/L selenium). That is, sampling obtained by HRK Holdings this year showed toxic levels of selenium in the wastewater stored at Piney Point – levels high enough that the wastewater would be deemed hazardous waste under RCRA, and thus unlawful to dispose of through deep well injection under Florida law.

In light of this information, our organizations and the collective tens of thousands of Floridians we represent respectfully request that you meaningfully evaluate whether the wastewater stored at Piney Point has been fully investigated, characterized, and sampled in a representative manner, especially with regard to the phreatic water and the underdrain system. While some portion of the precipitation-diluted wastewater at Piney Point may not rise to the level of hazardous waste, the sampling showing hazardous levels of selenium from the OGS-N is of serious concern and indicates that plans to inject the process wastewater are both unlawful and unwise. We understand the endangerment threatened by Piney Point, but a thorough analysis of the wastewater must be completed before billions of gallons of dangerous pollution is injected beneath the Lower Floridian aquifer. The process of sampling should be open and transparent, with input from our organizations’ experts before sampling begins.

We welcome an opportunity to discuss this matter with you further.

/s/ Jacklyn Lopez Center for Biological Diversity P.O. Box 2155 St. Petersburg, FL 33731 jlopez@biologicaldiversity.org /s/ Annie Beaman Our Children’s Earth Foundation, Inc.

/s/ Justin Bloom Tampa Bay Waterkeeper, Inc. 260 1st Ave S, Box 226 St. Petersburg, FL 33701 Suncoast Waterkeeper, Inc. 3008 Bay Shore Rd. Sarasota, FL 34234

1625 Trancas St., #2218 Napa, CA 94558 annie@ocefoundation.org

Tel: (941) 202-3182 jbloom@suncoastwaterkeeper.org

/s/ Glenn Compton ManaSota-88, Inc. 419 Rubens Drive Nokomis, FL 34275 manasota88@comcast.net

CC: Manatee County Board of County Commissioners c/o County Administrator Scott L. Hopes Manatee County Administrative Building 1112 Manatee Avenue West Bradenton, FL 34205 Office of the County Attorney c/o Manatee County Attorney William Clague Manatee County Administrative Building 1112 Manatee Avenue West Bradenton, FL 34205 Via E-Mail to: Jesse Mendoza, Sarasota Herald Tribune, JJMendoza@gannett.com Ryan Callihan, Bradenton Herald, rcallihan@brandton.com Zachary Sampson, Tampa Bay Times, zsampson@tampabay.com Dennis Maley, Bradenton Times, dennis.maley@thebradentontimes.com

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