Withdrawal of Approval for Use of Phosphogypsum in Road Construction

Withdrawal of Approval for Use of Phosphogypsum in Road Construction
Withdrawal of Approval for Use of Phosphogypsum in Road Construction
Michael S. Regan
Environmental Protection Agency
7 July 2021
[Federal Register Volume 86, Number 127 (Wednesday, July 7, 2021)]
[Notices]
[Page 35795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14377]



[[Page 35795]]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2020-0442; FRL-10024-70-OAR]


Withdrawal of Approval for Use of Phosphogypsum in Road 
Construction

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Environmental Protection Agency (EPA) is withdrawing its 
October 14, 2020 approval for use of phosphogypsum in government road 
projects. Under the Clean Air Act, the EPA may approve a request for 
other use of phosphogypsum if it includes certain prescribed 
information. Upon further review, EPA has determined that the approval 
was premature and should be withdrawn because the request did not 
contain all of the required information. With this action, 
phosphogypsum remains prohibited from use in road construction 
projects.

DATES: Effective July 7, 2021.

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: walsh.jonathan@epa.gov.
    Organization of this document. The information in this notice is 
organized as follows:

I. General Information
II. Background and Overview of Decision

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

    On October 14, 2020, EPA approved, subject to certain conditions, a 
request by The Fertilizer Institute (TFI) for the use of phosphogypsum 
in government road projects.\1\ This request was submitted pursuant to 
Clean Air Act regulations at 40 CFR 61.206, which provide that EPA may 
approve request for a specific use of phosphogypsum if it is determined 
that the proposed use is at least as protective of public health as 
placement in a stack, which is the designated management method. EPA 
identified ten components that such a request ``must contain'' (40 CFR 
61.206(b)). These include such items as the specific location where 
phosphogypsum will be used and the quantity of phosphogypsum to be 
used.
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    \1\ Letter from Andrew R. Wheeler, Administrator, Environmental 
Protection Agency, to Corey Rosenbusch, President and CEO, The 
Fertilizer Institute, dated October 14, 2020, Docket No. EPA-HQ-OAR-
2020-0442-0015. See also 85 FR 66550, October 20, 2020.
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    On December 18, 2020, various groups \2\ petitioned the United 
States Court of Appeals for the District of Columbia Circuit for review 
of EPA's action conditionally approving TFI's request. On that same 
date, these same groups, ``as a precaution and as a matter of 
courtesy,'' submitted to EPA, ostensibly under Clean Air Act (CAA) 
Sec.  307(d)(7)(B) (42 U.S.C. 7607(d)(7)(B)), a petition asking EPA to 
reconsider its action. EPA is further prompted to review this approval 
by Executive Order 13990, which directs agencies to examine a wide 
range of previously-issued actions in light of various policies and 
national objectives.\3\
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    \2\ Center for Biological Diversity, Healthy Gulf, Manasota-88, 
Inc., North America's Building Trades Unions, People for Protecting 
Peace River, Inc., Public Employees for Environmental 
Responsibility, Rise St. James, and Sierra Club and its Florida 
chapter. See Center for Biological Diversity v. EPA, No. 20-1506.
    \3\ ``Protecting Public Health and the Environment and Restoring 
Science to Tackle the Climate Crisis,'' signed January 20, 2021. 86 
FR 7037, January 25, 2021.
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    EPA has the authority to review and reconsider, on its own 
initiative, previous decisions and actions. Upon further evaluation, 
EPA decides that it was premature for the Agency to approve the 
proposed use without all of the information specified as constituting a 
proper request under Sec.  61.206(b). Therefore, EPA has withdrawn, 
revoked and rescinded the October 2020 approval.\4\ This decision is 
without prejudice to a subsequent or further proper request under Sec.  
61.206 for approval of the use of phosphogypsum for other purposes that 
contains the information required by Sec.  61.206(b). In accordance 
with the regulations at 40 CFR part 61, subpart R, unless and until any 
such request is approved, phosphogypsum must continue to be placed in 
stacks and may not be removed from stacks for use in road construction.
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    \4\ Letter from Michael S. Regan, Administrator, Environmental 
Protection Agency, to Corey Rosenbusch, President and CEO, The 
Fertilizer Institute, Docket No. EPA-HQ-OAR-2020-0442. See this 
letter for further discussion of the reasons for the withdrawal, 
revocation, and recission of the prior October 2020 decision.

Michael S. Regan,
Administrator.
[FR Doc. 2021-14377 Filed 7-6-21; 8:45 am]
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