[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] ======================================================================= ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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 10-6 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 [[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