[Federal Register Volume 85, Number 203 (Tuesday, October 20, 2020)]
[Notices]
[Pages 66550-66552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23154]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2020-0442; FRL-10014-36-OAR]


Approval of the Request for Other Use of Phosphogypsum by the 
Fertilizer Institute

AGENCY: Environmental Protection Agency (EPA).

[[Page 66551]]


ACTION: Notice.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is approving, 
subject to certain conditions, a request by The Fertilizer Institute 
for use of phosphogypsum in government road projects. This decision and 
supporting information is being made available to the public through 
this notice. Under the Clean Air Act, the EPA may approve a request for 
other use of phosphogypsum if it determines that the proposed use is at 
least as protective of human health as placement in a stack, which is 
the designated management method. With this approval, and in accordance 
with its terms and conditions, government entities may use 
phosphogypsum for road construction projects.

DATES: October 20, 2020.

FOR FURTHER INFORMATION CONTACT: Jonathan P. Walsh, Radiation 
Protection Division, Office of Radiation and Indoor Air, Mail Code 
6608T, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, 
Washington, DC 20460; telephone number: (202) 343-9238; fax number: 
(202) 343-2304; email address: [email protected].
    Organization of this document. The information in this notice is 
organized as follows:

I. General Information
    A. How can I get copies of this document and other related 
information?
II. Background and Overview of Decision
    A. The EPA's 1992 Risk Assessment
    B. Request by The Fertilizer Institute
    C. TFI's Risk Assessment
    D. Terms and Conditions of the Approval


SUPPLEMENTARY INFORMATION:

I. General Information

A. How can I get copies of this document and other related information?

    1. Docket. The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2020-0442. Publicly available docket materials 
are available either electronically through www.regulations.gov or in 
hard copy at the Air and Radiation Docket in the EPA Docket Center, 
(EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, 
DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 
4:30 p.m., Monday through Friday, excluding legal holidays. The 
telephone number for the Public Reading Room is (202) 566-1744, and the 
telephone number for the Air and Radiation Docket is (202) 566-1742.
    2. Electronic Access. You may access this Federal Register document 
electronically from the Government Printing Office under the ``Federal 
Register'' listings at FDSys (http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=FR).

II. Background and Overview of Decision

    Phosphogypsum stacks are large piles of waste from wet acid 
phosphorous production. There are more than 60 stacks of phosphogypsum 
located in 13 different states. The majority of these stacks are 
located in the southeastern region of the United States. Because the 
phosphate ore used to produce the phosphoric acid contains relatively 
high concentrations of uranium and radium, phosphogypsum stacks also 
contain high concentrations of these elements. The presence of radium 
in the stacks causes them to release radon gas into the atmosphere.
    The EPA regulates the management of phosphogypsum based on its 
elevated levels of radium and its decay products, including radon gas, 
which is classified as a hazardous air pollutant under the Clean Air 
Act. As required by 40 CFR part 61, subpart R (hereafter ``Subpart 
R''), phosphogypsum must be disposed of in engineered piles, called 
stacks, with the exception of limited use for agricultural and research 
purposes. In addition, applicants may request approval of other uses of 
phosphogypsum by following the process prescribed in 40 CFR 61.206.

A. The EPA's 1992 Risk Assessment

    The EPA initially established the requirement that phosphogypsum be 
placed into stacks without any exceptions (54 FR 51674, December 15, 
1989). In response to petitions for reconsideration, the EPA re-
evaluated the risks of selected applications of phosphogypsum against 
the risks from stacking (57 FR 23305, June 3, 1992).\1\ The EPA 
determined that the use of phosphogypsum in limited agricultural and 
indoor research activities could be as protective of human health, in 
the short- and long-term, as stacking. These approved uses were 
incorporated into Subpart R at 40 CFR 61.204-205.
---------------------------------------------------------------------------

    \1\ ``Potential Uses of Phosphogypsum and Associated Risks: 
Background Information Document,'' EPA 402-R92-002, May 1992.
---------------------------------------------------------------------------

    The EPA also assessed the use of phosphogypsum in road 
construction. While the risks were found to be acceptable from most of 
the exposure scenarios analyzed, the potential risks to residents of 
dwellings constructed on an abandoned road were calculated to be 
unacceptably high. The EPA therefore did not approve road construction 
as a categorical use of phosphogypsum. The EPA did, however, define in 
40 CFR 61.206 a process to request approval of other uses of 
phosphogypsum, including a risk assessment demonstrating that the 
proposed use is at least as protective of human health, in the short- 
and long-term, as placement in a stack. As stated in the preamble to 
the final rule, the measure of protectiveness is lifetime risk of fatal 
cancer to individuals. In connection with the removal of phosphogypsum 
from stacks for authorized uses, the EPA incorporated sampling, 
certification, and record-keeping requirements into Subpart R at 40 CFR 
61.207 through 61.209.

B. Request by The Fertilizer Institute

    On October 15, 2019, The Fertilizer Institute (TFI) submitted its 
initial ``Request for Approval of Additional Uses of Phosphogypsum 
Pursuant to 40 CFR 61.206,'' requesting that EPA approve the use of 
phosphogypsum in road construction. Subsequently, on April 7, 2020, TFI 
submitted, on behalf of its members that own or operate phosphogypsum 
stacks, a revised request: ``Revised Request for Approval of Additional 
Uses of Phosphogypsum Pursuant to 40 CFR 61.206: Use in Road 
Construction Projects Authorized by Federal, State and Local 
Departments of Transportation or Public Works.''
    TFI requested that phosphogypsum be approved specifically for 
government road projects authorized by federal, state and local 
Departments of Transportation (DOT) or Public Works (PW), and conducted 
as part of a government road project using appropriate, generally 
accepted road construction standards and specifications such as 
ASTM,\2\ Federal Highway Administration, federal or state DOT standards 
and specifications, or standards developed or approved in consultation 
with the appropriate regulatory DOT or PW authorities. Notably, as 
envisioned by the request, the submitter of the request (TFI) would not 
be the entity using the phosphogypsum, although its members may supply 
the phosphogypsum to the end user (i.e., the government agency 
responsible for the road construction project). To address this 
situation, the terms and conditions of the approval require that the 
phosphogypsum supplier (stack owner or operator) and the end user each 
provide information to the EPA, as appropriate, prior to removal of 
phosphogypsum from the stack.
---------------------------------------------------------------------------

    \2\ Formerly the American Society for Testing and Materials, now 
ASTM International.
---------------------------------------------------------------------------

    TFI estimates that the cost of transportation would make the use of

[[Page 66552]]

phosphogypsum uneconomical at distances greater than about 200 miles 
from a stack.\3\ In that case, the regional distribution of 
phosphogypsum stacks suggests that its use for road construction would 
likely be concentrated in the southeastern part of the country but 
could also occur in western states such as Idaho and Wyoming.
---------------------------------------------------------------------------

    \3\ ``Economic Analysis of Phosphogypsum Reuse,'' prepared for 
TFI by Policy Navigation Group, submitted as Appendix 6 to TFI's 
Revised Request, December 2019, page 19.
---------------------------------------------------------------------------

C. TFI's Risk Assessment

    As required by Subpart R, TFI submitted a risk assessment as part 
of its request.\4\ The risk assessment assessed potential exposures to 
individuals in various scenarios involving road users, nearby 
residents, and road construction workers. TFI's exposure scenarios and 
modeling approaches were largely consistent with the EPA's 1992 
analysis, as were the overall results.
---------------------------------------------------------------------------

    \4\ ``Radiological Risk Assessment in Support of Petition for 
Beneficial Use of Phosphogypsum,'' prepared for TFI by Arcadis 
Canada Inc., submitted as Appendix 2 to TFI's Revised Request, 
October 2019.
---------------------------------------------------------------------------

    The EPA finds TFI's risk assessment to adequately demonstrate that 
the use of phosphogypsum in road construction will be at least as 
protective of human health, in the short- and long-term, as 
stacking.\5\ However, as in 1992, the EPA remains concerned about 
potential exposures should the road become abandoned, particularly for 
a residence built on road material containing phosphogypsum. The EPA 
does not agree that TFI's assumptions in its analysis of this scenario, 
such as the use of radon resistant home construction techniques, could 
be relied upon to limit the potential risks to a future residential 
individual from such an occurrence. In this case, however, the EPA 
believes that this risk can be acceptably mitigated by including 
appropriate terms and conditions in the approval.
---------------------------------------------------------------------------

    \5\ ``Review of the Radiological Risk Assessment Submitted in 
Support of Request for Approval of Other Use of Phosphogypsum,'' 
October 2019, The Fertilizer Institute.
---------------------------------------------------------------------------

    In defining its request and exposure scenarios, TFI's risk 
assessment assumes certain limitations involving the construction and 
placement of roads. For example, phosphogypsum incorporated into the 
road base and the road surface is limited in its radium-226 
concentration and is assumed to be mixed with other materials in 
limited proportions. The terms and conditions of the approval reflect 
these assumptions and limitations.

D. Terms and Conditions of the Approval

    The EPA has determined that, subject to the terms and conditions 
summarized below, phosphogypsum may be removed from stacks and used in 
government road projects, as requested by TFI. This approval to use 
phosphogypsum in road construction does not authorize the removal of 
any phosphogypsum from any stacks or the use of any phosphogypsum for 
road construction unless and until the information required by the 
``Initial Conditions,'' below, is provided to EPA. Only after such 
information is provided to EPA, may phosphogypsum be removed from 
stacks and used in road construction, further provided that the 
conditions expressed in ``Other Conditions,'' below, continue to be 
met. A complete listing of the terms and conditions applicable to this 
approval may be found in the approval letter.\6\ Additional supporting 
documentation, such as the complete TFI request and risk assessment, 
are also in the docket.
---------------------------------------------------------------------------

    \6\ Letter from Andrew Wheeler, Administrator, Environmental 
Protection Agency, to Corey Rosenbusch, President and CEO, The 
Fertilizer Institute, Docket No. EPA-HQ-OAR-2020-0442.
---------------------------------------------------------------------------

1. Initial Conditions
    Prior to the distribution and/or use of phosphogypsum for any 
government road project, the owner or operator of the stack from which 
phosphogypsum is to be distributed or the governmental entity 
responsible for building and maintaining the road, as appropriate, must 
submit to the Agency all information required by 40 CFR 61.206(b), as 
more specifically described in the approval letter.
2. Other Conditions \7\
---------------------------------------------------------------------------

    \7\ In addition to the information required by 40 CFR 61.206(b), 
as noted in connection with the ``Initial Conditions,'' the ``Other 
Conditions'' include conditions associated with the requirements of 
40 CFR 61.206(d) and 61.207-61.209; conditions inherent in the 
nature of or limitations or assumptions associated with TFI's 
request; and conditions imposed under the EPA's authority and 
discretion under 40 CFR 61.206(e). The EPA believes that these 
conditions are either required by 40 CFR part 61, subpart R or are 
reasonably appropriate to help provide continued assurance that the 
use is at least as protective as disposal of phosphogypsum in stacks 
and will ensure that the removal of phosphogypsum from stacks and 
use in government road projects will be consistent with TFI's 
request and will occur with public notice and appropriate 
information availability.
---------------------------------------------------------------------------

    Subsequent to the provision of the initial required information to 
EPA, phosphogypsum may be used in government road projects in 
accordance with additional conditions, as stated in the approval 
letter, including, for example, conditions related to:
     Continued control, maintenance, and use of the road;
     Sampling, certification, and record-keeping requirements 
in 40 CFR 61.206(d) and 61.207 through 61.209;
     Construction of the road consistent with the assumptions, 
scenarios, limitations, and parameters analyzed in TFI's risk 
assessment, including an average radium content of no more than 35 pCi/
g, no more than 2.25% PG by weight in surface pavement and no more than 
50% PG by weight in the road base; and
     Notification and availability of information for the 
public and road construction workers on the use of phosphogypsum in the 
road project.
    Any use of phosphogypsum not consistent with the terms and 
conditions and any other limitations set forth in this approval shall 
be construed as unauthorized distribution of phosphogypsum and may 
constitute a violation of or noncompliance with 40 CFR part 61, subpart 
R. This approval is pursuant to Subpart R promulgated under the 
authority of the Clean Air Act. This approval does not relieve TFI, 
phosphogypsum stack owners or operators or resellers, retailers, 
distributors, or end users or other entities handling, processing or 
using phosphogypsum of responsibility to comply with other applicable 
laws and regulations.

Andrew Wheeler,
Administrator.
[FR Doc. 2020-23154 Filed 10-19-20; 8:45 am]
BILLING CODE 6560-50-P