[Federal Register Volume 61, Number 90 (Wednesday, May 8, 1996)]
[Proposed Rules]
[Pages 20775-20779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11165]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 61

[FRL-5468-4]
RIN 2060-AF04


National Emission Standards for Hazardous Air Pollutants; 
National Emission Standard for Radon Emissions From Phosphogypsum 
Stacks

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule; Notice of Reconsideration.

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SUMMARY: On March 24, 1994, EPA announced its decision concerning a 
petition by The Fertilizer Institute (TFI) seeking reconsideration of a 
June 3, 1992 final rule revising the National Emission Standard for 
Radon Emissions from Phosphogypsum Stacks, 40 CFR Part 61, Subpart R. 
EPA partially granted and partially denied the TFI petition for 
reconsideration. Pursuant to that decision, EPA is convening a 
rulemaking to reconsider 40 CFR 61.205, the provision of the final rule 
which governs distribution and use of phosphogypsum for research and 
development, and the methodology utilized under 40 CFR 61.207 to 
establish the average radium-226 concentration for phosphogypsum 
removed from a phosphogypsum stack. This document identifies proposed 
changes to be considered as part of this reconsideration and specific 
underlying issues on which EPA seeks further comment.

DATES: Comments concerning this proposed rule must be received by EPA 
on or before July 8, 1996. EPA will hold a public hearing concerning 
this proposed rule in Washington, D.C. if a request for a hearing is 
received by EPA by June 7, 1996. In the event a hearing is requested, 
EPA will publish a separate notice specifying the date and location of 
the hearing.

ADDRESSES: Comments should be submitted (in duplicate if possible) to: 
Air and Radiation Docket and

[[Page 20776]]

Information Center, 6102, U.S. Environmental Protection Agency, 401 M 
St., S.W., Washington, D.C. 20460, Attn: Air Docket No. A-94-57. 
Requests for a public hearing should be made in writing to the 
Director, Radiation Protection Division, 6602J, Office of Radiation and 
Indoor Air, Environmental Protection Agency, 401 M St., S.W., 
Washington, D.C. 20460. Requests may also be faxed to EPA at (202) 233-
9629.

FOR FURTHER INFORMATION CONTACT: Jacolyn Dziuban, Center for Federal 
Guidance and Air Standards (6602J), Office of Radiation and Indoor Air, 
Environmental Protection Agency, Washington, DC 20460 (202) 233-9474.

SUPPLEMENTARY INFORMATION:

Docket

    Docket No. A-79-11 contains the public record supporting the final 
rule revising 40 CFR Part 61, Subpart R, which EPA issued in 1992 (57 
FR 23305, June 3, 1992). It also contains the August 3, 1992 TFI 
petition which led to the initiation of this rulemaking, and the EPA 
response partially granting and partially denying the TFI petition (59 
FR 14040, March 24, 1994). Docket No. A-94-57 contains certain 
documents upon which this proposal is based. These dockets are 
available for public inspection between the hours of 8 a.m. and 4 p.m., 
Monday through Friday, in room M1500 of Waterside Mall, 401 M Street, 
SW, Washington, DC 20460. A reasonable fee may be charged for copying.

I. Background

A. Description of Phosphogypsum

    Phosphogypsum is a waste byproduct which results from the wet 
process of producing phosphoric acid from phosphate rock. Phosphogypsum 
stacks are piles of waste or mines utilized to store and dispose of 
phosphogypsum. Because phosphate ore contains a relatively high 
concentration of uranium and radium, phosphogypsum piles also contain 
high levels of these elements. The vast majority of piles are located 
in Florida, although other states also involved in phosphate rock 
production include Idaho, North Carolina, Tennessee, Utah, Alabama and 
Wyoming.

B. Regulatory History

1. The December 15, 1989 Standard
    On December 15, 1989, EPA published a National Emission Standard 
for Hazardous Air Pollutants (NESHAP) applicable to radon emissions 
from phosphogypsum stacks, 40 CFR Part 61, Subpart R (54 FR 51654, 
December 15, 1989) (Subpart R). As part of that standard, EPA adopted a 
work practice requirement that all phosphogypsum be disposed of in 
stacks, thereby permitting control and measurement of gaseous radon-222 
which is emitted when the radium present in the phosphogypsum decays.
    Subsequent to the issuance of Subpart R, EPA received petitions for 
reconsideration from The Fertilizer Institute (TFI), Consolidated 
Minerals, Inc., and U.S. Gypsum Company. These petitioners objected to 
the requirement that all phosphogypsum be disposed and managed in 
stacks, because it precluded various alternative uses of phosphogypsum, 
including use of phosphogypsum in agriculture, construction, and 
research and development. Because EPA had not fully considered the 
implications of its work practice standard for alternative uses, EPA 
agreed to convene a reconsideration proceeding in which the risks 
associated with alternative uses and the procedures under which 
alternative uses might be permitted could be evaluated (54 FR 9612, 
March 7, 1989).
    Rather than setting forth one specific proposal for revision of 
Subpart R, EPA requested comment on a variety of substantive issues, 
including specific types of proposed alternative uses of phosphogypsum 
and the health risks associated with these alternative uses. EPA also 
requested comment on four general options for regulation of alternative 
uses: (1) no change in the work practice requirement, (2) changing the 
definition of phosphogypsum to exclude from the work practice 
requirement material with radium-226 concentrations up to 10 
picocuries/gram (pCi/g), (3) permitting use of phosphogypsum in 
research and development on processes to remove radium from the 
phosphogypsum, and (4) permitting alternative use of phosphogypsum only 
after specific permission from EPA.
2. The June 3, 1992 Revision of Subpart R
    After analyzing the risks associated with the various alternative 
uses of phosphogypsum which were proposed and evaluating the comments 
which were received, EPA issued a final rule revising Subpart R (57 FR 
23305, June 3, 1992). The approach which EPA ultimately adopted was a 
hybrid of the options it had previously identified. For phosphogypsum 
use in agriculture, EPA decided that it would be impractical to require 
case-by-case approval. Based on its analysis of potential risks 
associated with long-term use of phosphogypsum in agriculture, EPA set 
a maximum upper limit of 10 pCi/g for radium-226 in phosphogypsum 
distributed for use in agriculture. Rather than excluding material at 
or below 10 pCi/g from the standard, EPA established sampling, 
measurement, and certification procedures permitting such material to 
be removed from stacks and sold for agricultural use. Based on an 
analysis of potential risks associated with the research and 
development use, EPA decided to permit the use of up to 700 pounds of 
phosphogypsum for a particular research and development activity. EPA 
also decided to adopt procedures permitting approval of other uses of 
phosphogypsum on a case-by-case basis.
    After EPA issued its final rule concluding the reconsideration 
proceeding and revising Subpart R, The Fertilizer Institute (TFI) 
sought judicial review of the 1992 revisions of Subpart R in The 
Fertilizer Institute v. Environmental Protection Agency, No. 92-1320 
(D.C. Cir.). TFI also filed a petition dated August 3, 1992 seeking 
further reconsideration of the revisions of the rule pursuant to Clean 
Air Act Section 307(d)(7)(B). TFI, EPA, and ManaSota-88, another 
petitioner who sought review of the 1992 rule in ManaSota-88 v. 
Browner, No. 92-1330 (D.C. Cir.), later reached an agreement to jointly 
move the D.C. Circuit Court of Appeals to stay judicial review of the 
1992 rule, and the Court granted the motion. As part of that agreement, 
EPA agreed to make a final decision whether to grant or to deny the TFI 
petition for reconsideration. After a careful review of all of the 
objections set forth in the petition for reconsideration, EPA decided 
to partially deny and to partially grant the petition (59 FR 14040, 
March 24, 1994).

II. Standard for Reconsideration

    Under Clean Air Act Section 307(d)(7)(B), the EPA Administrator is 
required to convene a reconsideration proceeding if: (1) the person 
raising an objection to a rule can demonstrate to the Administrator 
that it was impracticable to raise such objection within the time 
permitted for public comment or the grounds for the objection arose 
after the period for public comment, and (2) if the Administrator 
determines that the objection is of central relevance to the outcome of 
the rule. Therefore, reconsideration is not required if the objections 
by a petitioner were raised or could reasonably have been raised during 
the pendency of the rulemaking. Moreover, even in the circumstance

[[Page 20777]]

where a particular objection could not have been raised earlier, 
reconsideration is not required if EPA determines that such objections 
would not have altered the outcome of the rule had they been raised 
earlier.
    In the notice announcing the Agency's decision to partially deny 
and partially grant TFI's Petition for Reconsideration (59 FR 14040, 
March 24, 1994), EPA concluded that most of the objections raised by 
TFI did not warrant convening a reconsideration proceeding, but that 
some of the objections by TFI did warrant reconsideration of certain 
provisions of the 1992 rule. EPA found that many of the technical and 
policy objections by TFI to the EPA analysis of the potential risks of 
phosphogypsum use were not of central relevance to the outcome of the 
1992 rule, and that some of the other policy objections could have been 
raised during the public comment period. Therefore, EPA denied the 
petition for those objections.
    EPA also determined, as explained in the March 24, 1994 notice, 
that it was not practicable for TFI to raise some of its objections 
during the previous reconsideration proceeding, and that these 
objections might have affected the content of the 1992 rule had they 
been raised during the comment period. EPA therefore concluded that 
these specific objections were of central relevance to the outcome of 
the 1992 rule for the specific provisions of the rule which they 
concern, and stated that the Agency would convene a rulemaking to 
reconsider these provisions of the rule.

III. Issues To Be Reconsidered

A. The 700 Pound Limitation

    In the EPA analysis of potential risks associated with the research 
and development use of phosphogypsum upon which the 1992 revisions of 
Subpart R were based, EPA assumed that all of the free radon generated 
by phosphogypsum containing 26 pCi/g radium-226 would be released to 
one small laboratory room. As part of its analysis of the TFI petition, 
EPA concluded that most laboratory experiments using phosphogypsum 
would not result in such a high emanation rate. In addition, EPA 
discovered during its review of the TFI petition that the EPA analysis 
upon which the 1992 rule was based erroneously assumed that five 700 
pound drums would be stored or utilized in the same area of the 
laboratory, even though only a single 700 pound drum limit was 
permitted by the 1992 rule. Based on these two factors, EPA decided 
that it would be appropriate to reassess the risks associated with the 
use of phosphogypsum in laboratory research and development activities 
and to reconsider the 700 pound limitation in light of that 
reassessment. The Agency's new risk assessment for laboratory use of 
phosphogypsum entitled ``Addendum--Risk Assessment for Research and 
Development Uses'' of Phosphogypsum has been included in the docket for 
this proposed rule and may also be obtained from the EPA contact person 
listed at the beginning of this notice.
    The new EPA risk assessment for laboratory use of phosphogypsum 
concludes that use of 700 pounds of phosphogypsum is expected to cause 
an increase in lifetime cancer risk for the researchers working with 
this material of approximately 1.2 x 10<SUP>-6 for each year of 
exposure. If it is assumed that a researcher might work with this 
phosphogypsum in a laboratory for 10 years, this would result in a 
total increase in lifetime cancer risk for that researcher of 
approximately 1 x 10<SUP>-5. Utilizing the two-step process for 
determining the emission level which would provide an ``ample margin of 
safety'' which was established by the Court in the vinyl chloride 
decision, Natural Resources Defense Council v. EPA, 824 F.2d 1146 (D.C. 
Cir. 1987), EPA has determined in some prior instances that increases 
in lifetime cancer risk of approximately 1 x 10<SUP>-4 are acceptable. 
However, the second step of the methodology required by the vinyl 
chloride decision involves considering the economic feasibility of 
further reductions in exposure and the associated risks. Therefore, to 
properly apply this methodology in selecting an appropriate limit, EPA 
must determine whether there are circumstances where it would be 
helpful to researchers to utilize quantities of phosphogypsum greater 
than 700 pounds in a laboratory setting. EPA is specifically requesting 
comments on whether any individual believes it would be useful to use 
more than the current limit of 700 pounds of phosphogypsum in any 
single laboratory research and development project and if so, what 
practical advantages a higher limit would provide.
    In its petition, TFI also argued that it was not clear from the 
text of the 1992 rule whether more than one research and development 
activity utilizing 700 pounds of phosphogypsum would be permitted at a 
single facility, as well as whether or not a single research activity 
would be limited to a total of 700 pounds or only to 700 pounds at any 
given time for a given activity. EPA responded that multiple research 
and development activities each utilizing 700 pounds of phosphogypsum 
would be permitted at a single facility, and that the 700 pound limit 
applies only to the amount of phosphogypsum on hand at any given time. 
However, the request for clarification by TFI also underscores another 
limitation in the risk assessment supporting the 1992 rule. The EPA 
risk analysis failed to consider that a given laboratory worker might 
be exposed to radiation as a result of more than one research and 
development activity utilizing phosphogypsum. Therefore, EPA is 
requesting comment on whether there should be any limit on multiple 
research and development activities at a single facility or by a 
particular investigator.
    Since multiple research and development activities involving use of 
phosphogypsum may be undertaken in the same laboratory or at the same 
facility, EPA believes that it may be difficult for researchers, as 
well as enforcement personnel, to clearly distinguish between the 
phosphogypsum intended for use in different research and development 
activities. In view of this difficulty, it may be simpler and less 
cumbersome to establish a single quantitative limit for the total 
amount of phosphogypsum which may be utilized for all research and 
development activities at a single facility. If quantities of 
phosphogypsum in excess of the present limit of 700 pounds would be 
useful for a particular research activity, a single larger limit for 
all activities could afford greater flexibility, while still limiting 
the overall radon exposure and cancer risk. The Agency's new risk 
assessment for laboratory use of phosphogypsum suggests that an overall 
limit per facility of 7000 pounds of phosphogypsum would assure that no 
individual has an increased cancer risk over a ten year period in 
excess of 1 x 10<SUP>-4. Therefore, EPA is requesting comment on 
whether it would be preferable to establish a single aggregate limit on 
laboratory use of phosphogypsum for research and development purposes 
at each facility, rather than a separate limit for each individual 
experiment.

B. Use Outside of a Laboratory Setting

    In its petition for reconsideration, TFI argued that the limitation 
of 700 pounds of phosphogypsum for each specific research and 
development activity effectively bans research activities in the field. 
EPA responded that 40 CFR Section 61.205 was designed to permit 
research and development activities involving phosphogypsum to proceed 
in the laboratory, not to authorize large scale field research. The 
risk assessment

[[Page 20778]]

underlying the research and development provision in the 1992 rule 
considered the potential hazard of radon exposure for laboratory 
workers, but it did not and could not consider those other risks to 
humans or the environment which might result from research activities 
utilizing phosphogypsum in the field. It was always the Agency's 
expectation that proposals to conduct field studies utilizing 
phosphogypsum would be submitted for EPA approval pursuant to 40 CFR 
Section 61.206, and EPA has in fact approved field research under this 
provision since promulgation of the 1992 rule. Accordingly, EPA is also 
proposing to clarify the language of 40 CFR Section 61.205 to limit 
that provision to research and development activities undertaken in a 
controlled laboratory setting.

C. Sampling and Certification Requirements for Laboratory Use

    In its petition, TFI objected to the requirement that owners or 
operators conduct sampling or measurement of radium-226 and include 
such information in certification documents accompanying the 
phosphogypsum distributed for use in research and development. TFI 
noted correctly that there is no quantitative limit on the amount of 
radium-226 which phosphogypsum distributed for the research and 
development use may contain. Because there is no upper limit on the 
amount of radium permitted in phosphogypsum distributed for research 
and development use, EPA has assumed in its analysis of potential risks 
associated with such use that the phosphogypsum would contain high 
levels of radium. EPA believes that in most instances analysis of the 
radium-226 content in phosphogypsum distributed for use by laboratories 
in research and development projects will be necessary as part of the 
research activity. However, EPA has concluded that requiring 
certification documents accompanying phosphogypsum distributed for use 
in research and development to include quantitative analyses of radium 
content is not necessary to monitor compliance. Thus EPA is proposing 
to eliminate the requirement that owners or operators of phosphogypsum 
stacks analyze the radium-226 content of phosphogypsum distributed for 
research and development and the requirement that certification 
documents accompanying phosphogypsum distributed for research and 
development include information on radium-226 content. EPA requests 
comment on this proposal.

D. Sampling Statistics

    In its petition, TFI objected that the formula set forth in 40 CFR 
Section 61.207(d), which is used to establish the number of samples 
necessary to determine a representative average radium-226 
concentration, is ambiguous, because it does not specify the amount of 
allowable error. EPA agreed with this objection and stated it would 
reconsider this issue.
    EPA has carefully evaluated the methods which can be utilized to 
demonstrate that the radium-226 concentration is less than 10 pCi/g in 
phosphogypsum removed from a stack for agricultural purposes, under the 
provisions of 40 CFR Section 61.204, and to measure the radium-226 
concentration in phosphogypsum to be used for other purposes, under the 
provisions of 40 CFR Section 61.206. EPA has concluded that the 
equations used for determining the radium-226 concentration in the 
phosphogypsum should be clarified, and that the methods for determining 
the sample size and testing needed to demonstrate that the 
concentration is less than 10 pCi/g should be revised. The revised 
techniques do not utilize the error term required by the present 
version of 40 CFR Section 61.207.
    The proposed revisions of these methods are set forth in a document 
entitled ``Statistical Procedures for Certifying Phosphogypsum for 
Entry into Commerce, as Required by Section 61.207 of 40 CFR Part 61, 
Subpart R.'' A copy of this document has been included in the docket 
for this rulemaking and is also available from the EPA contact person 
listed at the beginning of this notice. EPA requests comments 
concerning the proposed revisions of the statistical methods described 
in this document.

IV. Miscellaneous

A. Paperwork Reduction Act

    Eliminating the requirement that owners or operators of 
phosphogypsum stacks analyze the radium-226 content of phosphogypsum 
distributed for research and development and the associated 
certification documents will eliminate the current burden, of 100 hours 
per year per stack.

B. Executive Order 12866

    Under Executive Order 12866, (58 FR 57735, October 4, 1993), the 
Agency must determine whether this regulation, if promulgated, is 
``significant'' and therefore subject to review by the Office of 
Management and Budget under the requirements of the Executive Order. 
The Order defines ``significant regulatory action'' as one that is 
likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This action will not result in an annual effect on the economy of 
$100 million or another adverse economic impact; it does not create a 
serious inconsistency or interfere with another agency's action; it 
does not materially alter the budgetary impacts of entitlements, 
grants, user fees, etc.; and it does not raise novel legal or policy 
issues. Thus, EPA has determined that this proposal to reconsider 
Subpart R is not a ``significant regulatory action'' under the terms of 
Executive Order 12866.

C. Regulatory Flexibility Analysis

    Section 603 of the Regulatory Flexibility Act, 5 U.S.C. 603, 
requires EPA to prepare and make available for comment an ``initial 
regulatory flexibility analysis'' which describes the effect of the 
proposed rule on small business entities. However, Section 604(b) of 
the Act provides that an analysis not be required when the head of an 
Agency certifies that the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small entities.
    EPA has determined that there will be no significant impact on any 
of the institutions and businesses affected by the revisions proposed 
in this notice. Accordingly, I certify that the revisions proposed in 
this notice, if adopted, will not have a significant economic impact on 
a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under Section 202 of the UMRA, EPA 
generally must prepare a written

[[Page 20779]]

statement, including a cost-benefit analysis, for proposed and final 
rules with ``Federal mandates'' that may result in expenditures to 
State, local, and tribal governments, in the aggregate, or to the 
private sector, of $100 million or more in any one year. Under section 
203 of the UMRA, before EPA establishes any regulatory requirements 
that may significantly or uniquely affect small governments, including 
tribal governments, it must develop a small government agency plan.
    The intended purpose of this proposed rule is to relax existing 
regulatory requirements, rather than to impose any new enforceable 
duties on State, local, or tribal governments or the private sector. In 
any event, EPA has determined that none of the options discussed in 
this proposal would, if adopted, include any Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in the aggregate, or the private sector in any one 
year. EPA has also determined that none of the options discussed in 
this proposal might, if adopted, significantly or uniquely affect small 
governments.

    Dated: April 26, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-11165 Filed 5-7-96; 8:45 am]
BILLING CODE 6560-50-P