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

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

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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 10-6 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 10-5. 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 10-4 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 10-4. 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

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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

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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]

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