Notice2026-08097
Response to Petition To Change Regulation of Phosphogypsum Under RCRA
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 24, 2026
Issuing agencies
Environmental Protection Agency
Abstract
The Environmental Protection Agency (EPA) is responding to a rulemaking petition from the Center for Biological Diversity (CBD) and People for Protecting Peace River, on behalf of a consortium of non- profit groups. The EPA has been petitioned to promulgate rules that reverse the EPA 1991 Bevill regulatory determination excluding phosphogypsum and phosphoric acid production process wastewater from Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous waste regulations; and govern the safe treatment, storage and disposal of phosphogypsum and process wastewater as hazardous wastes under RCRA Subtitle C. After careful consideration, the EPA is proposing to deny the petition for the reasons discussed in this document. The EPA is also soliciting public comment on this proposed denial.
Full Text
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<title>Federal Register, Volume 91 Issue 79 (Friday, April 24, 2026)</title>
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[Federal Register Volume 91, Number 79 (Friday, April 24, 2026)]
[Notices]
[Pages 22149-22154]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-08097]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OLEM-2026-0232; FRL-12771-01-OLEM]
Response to Petition To Change Regulation of Phosphogypsum Under
RCRA
AGENCY: Environmental Protection Agency (EPA).
ACTION: Petition response.
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SUMMARY: The Environmental Protection Agency (EPA) is responding to a
rulemaking petition from the Center for Biological Diversity (CBD) and
People for Protecting Peace River, on behalf of a consortium of non-
profit groups. The EPA has been petitioned to promulgate rules that
reverse the EPA 1991 Bevill regulatory determination excluding
phosphogypsum and phosphoric acid production process wastewater from
Resource Conservation and Recovery Act (RCRA) Subtitle C hazardous
waste regulations; and govern the safe treatment, storage and disposal
of phosphogypsum and process wastewater as hazardous wastes under RCRA
Subtitle C. After careful consideration, the EPA is proposing to deny
the petition for the reasons discussed in this document. The EPA is
also soliciting public comment on this proposed denial.
DATES: Comments must be received on or before May 26, 2026.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OLEM-2026-0232, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Office of Land and Emergency Management Docket, Mail Code
28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand Delivery or Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the
[[Page 22150]]
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: Meridith Fry, Waste Identification,
Notice, and Generators Division, Office of Resource Conservation and
Recovery, Mail code: (5304T), Environmental Protection Agency, 1200
Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202)
564-5129; email address: <a href="/cdn-cgi/l/email-protection#0b6d797225666e79626f627f634b6e7b6a256c647d"><span class="__cf_email__" data-cfemail="690f1b1047040c1b000d001d01290c1908470e061f">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
A. Does this action apply to me?
B. Written comments
II. General Information
A. List of Abbreviations and Acronyms
B. What action is the EPA taking?
C. What is the EPA's authority for taking this action?
D. What are the incremental costs and benefits of this action?
III. Background
A. RCRA Rulemaking Petitions
B. Regulatory Background on Phosphogypsum and Process Wastewater
IV. Reasons for the EPA's Proposed Denial of the Petition
Petition Does Not Adequately Support a Decision by the EPA To
Reconsider the Bevill Status of Phosphogypsum or Process Wastewater
Under RCRA
V. References
I. Public Participation
A. Does this action apply to me?
The EPA is not proposing any regulatory changes at this time.
Entities that may be interested in this proposed denial of the
rulemaking petition include any facility that generates, stores, or
uses phosphogypsum or associated process wastewater generated as a
byproduct of phosphoric acid production. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the FOR FURTHER INFORMATION CONTACT
section.
B. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2026-
0232, at <a href="https://www.regulations.gov">https://www.regulations.gov</a> (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. The EPA may
publish any comment received to its public docket. Do not submit to the
EPA's docket at <a href="https://www.regulations.gov">https://www.regulations.gov</a> any information you
consider to be Confidential Business Information (CBI), Proprietary
Business Information (PBI), or other information whose disclosure is
restricted by statute. Multimedia submissions (audio, video, etc.) must
be accompanied by a written comment. The written comment is considered
the official comment and should include discussion of all points you
wish to make. The EPA will generally not consider comments or comment
contents located outside of the primary submission (i.e., on the web,
cloud, or other file sharing system). Please visit <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a> for additional submission methods; the
full EPA public comment policy; information about CBI, PBI, or
multimedia submissions; and general guidance on making effective
comments.
II. General Information
A. List of Abbreviations and Acronyms
CBD--Center for Biological Diversity
CFR--Code of Federal Regulations
EPA--Environmental Protection Agency
FACA--Federal Advisory Committee Act
FR--Federal Register
NESHAP--National Emissions Standards for Hazardous Air Pollutants
RCRA--Resource Conservation and Recovery Act
TSCA--Toxic Substances Control Act
B. What action is the EPA taking?
The EPA is providing notice of and requesting comment on its
proposed denial of CBD's 2021 petition requesting a rulemaking to: (1)
reverse the EPA 1991 Bevill regulatory determination excluding
phosphogypsum and phosphoric acid production process wastewater
(``process wastewater'') from RCRA Subtitle C hazardous waste
regulations; and (2) govern the safe treatment, storage and disposal of
phosphogypsum and process wastewater as hazardous wastes under RCRA
Subtitle C. With this action, the EPA is publishing its evaluation of
the rulemaking petition and supporting materials and requesting public
comment on the proposed denial.
C. What is the EPA's authority for taking this action?
On February 8, 2021, the Center for Biological Diversity (CBD) on
behalf of People for Protecting Peace River, Atchafalaya Basinkeeper,
Bayou City Waterkeeper, Calusa Waterkeeper, Center for Biological
Diversity, Cherokee Concerned Citizens, Healthy Gulf, Manasota-88, Our
Santa Fe River, Rise St. James, Sierra Club Delta Chapter, Sierra Club
Florida Chapter, Suncoast Waterkeeper, Suwannee Riverkeeper, Tampa Bay
Waterkeeper, Waterkeeper Alliance, Waterkeepers Florida, and WWALS
Watershed Coalition petitioned the EPA to: (1) reverse the EPA 1991
Bevill regulatory determination excluding phosphogypsum and process
wastewater from RCRA Subtitle C hazardous waste regulations; and (2)
govern the safe treatment, storage and disposal of phosphogypsum and
process wastewater as hazardous wastes under RCRA Subtitle C
(``Petition''). The EPA is responding to this Petition for rulemaking
pursuant to 42 U.S.C. 6912(a), 6921(a) and 6974, and the EPA's
regulations at 40 CFR 260.20. The EPA identifies hazardous wastes
subject to the RCRA Subtitle C regulations pursuant to 42 U.S.C.
6921(a), with implementing regulations 40 CFR parts 261 and 262.11.
D. What are the incremental costs and benefits of this action?
This action consists entirely of the rationale for denying the
Petition and proposes no regulatory changes. This action has neither
incremental costs nor benefits.
III. Background
A. RCRA Rulemaking Petitions
Under RCRA, ``[a]ny person'' may ``petition the [EPA] for the
promulgation, amendment, or repeal of any regulation under'' the
statute (42 U.S.C. 6974(a)). The EPA's regulations require that every
petition must include, among other components, ``a statement of the
need and justification for the proposed action, including any
supporting tests, studies, or other information'' (40 CFR
260.20(b)(4)). Therefore, when a petition fails to provide sufficient
information, the EPA is not required to grant the petition and may deny
it as a matter of its discretion. The EPA has refrained prescribing
more specific content requirements for petitions such as this, because
information needs associated with a petition request vary in accordance
with the regulatory provisions that the petition may seek to amend or
add.
Following receipt of a petition, the EPA's regulations provide that
the EPA ``will make a tentative decision to grant or deny a petition
and will publish notice of such tentative decision, either in the form
of an advanced notice of proposed rulemaking, a proposed rule, or a
tentative determination to deny the petition, in the Federal Register
for written public comment'' (40 CFR 260.20(c)). Following evaluation
of ``all public comments the [EPA] will make a final decision by
publishing in the Federal Register a regulatory
[[Page 22151]]
amendment or denial of the petition'' (40 CFR 260.20(e)).
With this action, the EPA is issuing a proposed determination to
deny the Center for Biological Diversity's 2021 rulemaking petition
asking that the EPA: (1) reverse the EPA 1991 Bevill regulatory
determination excluding phosphogypsum and process wastewater from RCRA
Subtitle C hazardous waste regulations; and (2) [issue regulations
that] govern the safe treatment, storage and disposal of phosphogypsum
and process wastewater as hazardous wastes under RCRA Subtitle C.
In evaluating the Petition, the EPA considered whether the
reopening of the EPA's 1991 Bevill regulatory determination is
warranted, based on the post-regulatory determination information
submitted by Petitioners. The EPA's review of the Petition is not a
reopening of the Bevill regulatory determination itself. For the
reasons identified in section IV, the Petition fails to support the
reconsideration of the Bevill exclusion for phosphogypsum and process
wastewater, and as such, reevaluation is unwarranted. Since the EPA is
not reopening the Bevill determination, phosphogypsum and process
wastewater remain excluded from regulation under RCRA Subtitle C. As a
result, further response to the latter part of the Petition requesting
the EPA list phosphogypsum and process wastewater as hazardous waste
under Subtitle C is unwarranted.
B. Regulatory Background on Phosphogypsum and Process Wastewater
Phosphogypsum and process wastewater are large-volume waste
products of wet process phosphoric acid production, as described in the
1998 EPA Technical Background Document (USEPA, 1998a). Phosphoric acid
facilities largely produce phosphoric acid for use in fertilizer and
animal feed products. Phosphate rock is typically received at
facilities from mines by truck or rail car, and sulfuric acid is piped
from storage tanks to phosphoric acid reactors. In the reactors,
sulfuric acid is mixed with phosphate rock to produce weak phosphoric
acid. A byproduct of the reaction is calcium sulfate dihydrate,
referred to as phosphogypsum. Phosphogypsum is separated from the weak
phosphoric acid by filtration. To recover additional weak phosphoric
acid, the filtered phosphogypsum is rinsed with process wastewater
pumped from ponds and ditches associated with phosphogypsum stacks
(i.e., large waste piles of phosphogypsum). The rinsed phosphogypsum is
then mixed with water (slurried) and pumped to the phosphogypsum stacks
for disposal. Approximately five tons of phosphogypsum are produced for
every one ton of phosphoric acid manufactured. Approximately 90 percent
of the water used at these facilities is recycled for reuse as process
wastewater (USEPA, 1998a).
In 40 CFR 261.4(b)(7), phosphogypsum and process wastewater from
phosphoric acid production are among the solid wastes from the
processing of ores and minerals that are excluded from regulation as a
hazardous waste under RCRA Subtitle C (42 U.S.C. 6921). As part of the
Solid Waste Disposal Act Amendments of 1980 to RCRA, the Bevill
Amendment (section 3001(b)(3)(A)(ii)) exempted ``solid waste from the
extraction, beneficiation, and processing of ores and minerals'' from
regulation as hazardous wastes under Subtitle C of RCRA, until the EPA
performed a study and submitted a Report to Congress, as required by
RCRA sections 8002(f) and 8002(p), to determine if these exempt wastes
should be regulated under Subtitle C or that such regulations were
unwarranted (i.e., the exclusion should continue), as required by
section 3001(b)(3)(C). The EPA modified its hazardous waste regulations
in November 1980 to reflect this ``Mining Waste Exclusion,'' and issued
a preliminary, broad interpretation of the scope of its coverage to
encompass ``solid waste from the exploration, mining, milling, smelting
and refining of ores and minerals'' (45 FR 76618; USEPA, 1990a). The
Simpson Amendment in 1984 created regulatory flexibility for the EPA to
modify some of the requirements of Subtitle C for special wastes that
the EPA determined to be hazardous under RCRA Subtitle C (``Subtitle C-
Minus''), including mineral processing wastes (42 U.S.C. 6924(x)).
In 1984, the EPA was sued for failing to complete the section 8002
studies and associated Bevill Amendment regulatory determination by the
statutorily imposed deadline (Concerned Citizens of Adamstown vs. EPA,
No. 84-3041, D.D.C, August 21, 1985). The District Court for the
District of Columbia ordered the EPA to complete the section 8002
studies and regulatory determination in accordance with the regulatory
agenda submitted to the court. In responding to this lawsuit, the EPA
detailed its plans for proposing a narrower interpretation of the scope
of the Mining Waste Exclusion, a schedule for completing the section
8002 studies of mineral extraction and beneficiation wastes and
submitting the associated Report to Congress, and a schedule for
proposing and promulgating a reinterpretation for mineral processing
wastes. The EPA's approach, which the Court agreed to, split the wastes
that might be eligible for exclusion from regulation into two groups:
mining (mineral extraction and beneficiation) wastes and mineral
processing wastes. The Petition and this proposed denial focus on
mineral processing wastes, which include phosphogypsum and process
wastewater.
As described in section IV of this proposed denial, the EPA was
required to study the disposal and utilization of wastes excluded from
regulation under section 8002(p) using the following eight Bevill study
factors:
1. The source and volume of such materials generated per year;
2. Present disposal and utilization practices;
3. Potential danger to human health and the environment from the
disposal and reuse of such materials;
4. Documented cases in which danger to human health or the
environment has been proven;
5. Alternatives to current disposal methods;
6. The costs of such alternatives;
7. The impacts of these alternatives on the use of phosphate rock,
uranium ore, and other natural resources; and
8. The current and potential utilization of such materials.
In 1985, the EPA proposed narrowing the scope of the Mining Waste
Exclusion for mineral processing wastes to only include a few specific
waste streams, including phosphogypsum (50 FR 40292). However, the EPA
withdrew this proposal in October 1986 (51 FR 36233), given the
difficulty in articulating criteria for distinguishing exempt from non-
exempt wastes and the approaching court-ordered deadline for final
action. In July 1988, the court in Environmental Defense Fund v. EPA,
852 F.2d 1316 (D.C. Cir. 1988), cert. denied 109 S. Ct. 1120 (1989),
ordered the EPA to define the specific mineral processing wastes that
were eligible for the Mining Waste Exclusion and directed the EPA to
restrict the scope of the Mining Waste Exclusion to include only
``large volume, low hazard'' wastes.
In the three years that followed this decision, the EPA proposed
and promulgated several rules that redefined the boundaries of the
exclusion for mineral processing wastes (54 FR 36592; 55 FR 2322).
These rulemaking documents included explicit criteria for defining
mineral beneficiation and processing, large volume and low hazard, as
well as evaluations of which specific mineral industry wastes were in
[[Page 22152]]
conformance with these criteria, and thus, eligible for special wastes
status. The rulemaking process was completed with the publication of
final rules in 1989 (54 FR 36592) and 1990 (55 FR 2322). Only 20
specific mineral processing wastes (``Special 20''), which included
phosphogypsum and process wastewater from phosphoric acid production,
fulfilled the special wastes criteria; all other mineral processing
wastes were removed from the Mining Waste Exclusion.
In 1989, the EPA also promulgated a National Emissions Standards
for Hazardous Air Pollutants (NESHAP) under the Clean Air Act, which
required all phosphogypsum to be disposed of in stacks or mines and
limited their radon emissions (54 FR 38044). The NESHAP was later
amended in 1992 to allow for agricultural, and research and development
uses, of certain phosphogypsum meeting a maximum radium threshold (57
FR 23305).
In 1990, the EPA published a Report to Congress on special wastes
from mineral processing (USEPA, 1990a; USEPA, 1990b). The EPA then
promulgated the ``Special Wastes from Mineral Processing Final
Regulatory Determination and Final Rule'' in June 1991 (56 FR 27300).
In the regulatory determination (56 FR 27300), the EPA stated that
although the management practices and state and federal regulations at
the time did not adequately limit contaminant releases and associated
risk from phosphogypsum and process wastewater, additional regulatory
controls under RCRA Subtitle C or Subtitle D would result in
unsustainable costs exceeding the operating margins of facilities. As a
result, the EPA decided that additional controls may be warranted, but
RCRA Subtitle C and Subtitle D were ``too inflexible and costly for the
industry to implement and remain viable'' (56 FR 27300). For
phosphogypsum and process wastewater specifically, the EPA decided at
that time, to consider developing actions and initiatives under the
Toxic Substances Control Act (TSCA) and to use existing authorities
under RCRA section 7003 or CERCLA section 106 to respond to groundwater
contamination at specific sites.
Under the TSCA regulatory program, the Phosphoric Acid Waste
Dialogue FACA Committee was initiated in 1992, with members from
interest groups, including industry, environmental organizations, and
state and federal agencies. The Committee met six times between
December 1992 and March 1994, with the charge to ``provide a forum to
address existing or potential risks to human health or the environment
from phosphoric acid production wastes'' (Phosphorus Acid Waste
Dialogue FACA Committee, 1995). The Committee was tasked with
evaluating current processes and identifying site-specific process
changes that could potentially be applied to phosphoric acid production
facilities on a case-by-case basis, to reduce the toxicity and/or
volume of these wastes and achieve ``environmental improvements from
process changes that were technically and economically feasible''
(Phosphorus Acid Waste Dialogue FACA Committee, 1995). While the
Committee identified process changes and alternatives in their 1995
report, they did not find ``any affordable, technologically feasible
in-plant process changes that would significantly reduce volume and/or
toxicity of phosphogypsum or phosphoric acid process wastewater,'' and
the EPA pursued no further regulatory action (Phosphorus Acid Waste
Dialogue FACA Committee, 1995).
IV. Reasons for the EPA's Proposed Denial of the Petition
Petition Does Not Adequately Support a Decision by the EPA To
Reconsider the Bevill Status of Phosphogypsum or Process Wastewater
Under RCRA
When Congress originally excluded mining wastes from RCRA Subtitle
C regulations (Bevill Amendment of 1980), it gave the EPA direction to
study these wastes and determine which should remain exempt. In 1985,
the EPA published the required Report to Congress on Solid Wastes from
Mineral Extraction and Beneficiation (USEPA, 1985) and in 1991, the EPA
promulgated the ``Special Wastes from Mineral Processing Final
Regulatory Determination and Final Rule'' (56 FR 27300). The EPA
studied all exempted mineral processing wastes and retained the
exemption for only the Special 20 large volume wastes based on eight
Bevill study factors (56 FR 27300). The EPA further studied
phosphogypsum and process wastewater and found alternatives to current
disposal methods where the toxicity of phosphogypsum wastes could be
reduced. However, the costs involved were prohibitive to the industry
(56 FR 27300; USEPA, 1998a).
Because an analysis of the Bevill study factors was the first step
in determining whether the exemption should be retained, the EPA has
analyzed this Petition by examining information submitted by the
Petitioners relevant to the Bevill study factors in RCRA 8002. As
described below, the Petition has not provided sufficient information
to warrant the EPA's reconsideration of the 1991 Bevill determination
that exempted phosphogypsum and process wastewater from RCRA Subtitle
C.
The Petition states that the EPA is not precluded from revisiting
the Bevill regulatory determination if more information becomes known.
However, as described below, the Petition largely presents information
that was already considered during the EPA's evaluation of
phosphogypsum and process wastewater (USEPA, 1990a) and described in
the cache of regulatory documents leading to the identification of the
Special 20 (56 FR 27300) (USEPA, 1998a).
Bevill factor 1 pertains to the source and volume of materials
generated per year. Petitioners cite sources (Petition section III and
VII.A.2.b.) and quantities (Petition sections III and VII.A.2.h.) of
phosphogypsum directly from the 1990 Report to Congress on Special
Wastes from Mineral Processing (USEPA, 1990a). The information
submitted by Petitioners does not differ from the sources and
quantities previously studied by the EPA (USEPA, 1990a) and described
in the cache of regulatory documents leading to the identification of
the Special 20 (56 FR 27300).
Bevill factor 2 pertains to present disposal and utilization
practices. The Petition discusses disposal of phosphogypsum in large
stacks with basic engineered controls (i.e., single liners, clay
liners, vegetative and soil covers) and process wastewater in ponds and
ditches for recirculation/utilization in the fertilizer plant (Petition
sections III and VII.A.2.g.). The information submitted by Petitioners
does not differ from the disposal and utilization practices previously
studied by the EPA (USEPA, 1990a) and described in the cache of
regulatory documents leading to the identification of the Special 20
(56 FR 27300).
Bevill factor 3 pertains to potential danger to human health and
the environment from disposal and reuse. The Petition discusses impacts
to ground and surface waters, aquatic life, and air quality (Petition
section V) that were specifically identified in the 1990 Report to
Congress on Special Wastes from Mineral Processing (USEPA, 1990a). This
information was previously studied by the EPA (USEPA, 1990a) and
described in the regulatory documents leading to the identification of
the Special 20 (56 FR 27300).
Bevill factor 4 pertains to documented cases in which danger to
human health or the environment has been proven. Petitioners identify
recent damage cases
[[Page 22153]]
where levees/embankments were breached or sinkholes formed, releasing
process wastewater and/or phosphogypsum (Petition section VII.A.2.g.).
However, the 1985 Report to Congress (USEPA, 1985), ``Damage Cases and
Environmental Releases from Mines and Mineral Processing'' document
(USEPA, 1998b), and ``Risks Posed by Bevill Wastes'' document (USEPA,
1998c) considered similar levee/embankment breaches and sinkhole
formation damage cases. Because the EPA has previously considered these
types of damages in its prior studies, in effect, Petitioners have not
presented information beyond what was considered in those documents and
the original studies that retained phosphogypsum and process wastewater
as mineral processing wastes exempted by Bevill.
Bevill factor 5 pertains to alternatives to current disposal
methods. The Petition lists seven alternatives to current phosphogypsum
and process wastewater management (Petition section XIV). However,
Petitioners have not presented sufficient information on these
alternatives and their feasibility (including costs, current use,
potential use, and environmental impact) to convince the EPA that re-
evaluation of Bevill is warranted. In addition, the EPA previously
conducted an evaluation of alternatives, which did consider the costs,
current use, potential use, and environmental impact of available
alternatives at the time (USEPA, 1990a), and as described in the cache
of regulatory documents leading to the identification of the Special 20
(56 FR 27300). The Phosphoric Acid Waste Dialogue FACA Committee also
evaluated alternatives and concluded that none of the potential
alternatives identified in their report, or any other known technology
at the time, offered significant reductions in the volume and/or
toxicity of the waste streams from the production of phosphoric acid
using the sulfuric acid wet process (Phosphoric Acid Waste Dialogue
FACA Committee, 1995).
Bevill factor 6 refers to the costs of such alternatives. The
Petition does not present any information on this factor.
Bevill factor 7 pertains to the impact of those alternatives on the
use of phosphate rock and uranium ore, and other natural resources. The
Petition does not present any information on this factor.
Bevill factor 8 refers to current and potential utilization. The
Petition mentions the 2020 approval of the use of phosphogypsum in road
construction projects as part of its argument for a TSCA Significant
New Use (Petition section XII). While this proposed denial does not
address the TSCA elements of the Petition (previously addressed in 86
FR 27546), the EPA also does not think that the information presented
by Petitioners regarding the use in road construction warrants
reconsideration of Bevill, in terms of factor 8. In the 2020 rulemaking
(85 FR 66550), the EPA concluded that the Fertilizer Institute's risk
assessment was largely consistent with the EPA's 1992 amendment to
NESHAP (57 FR 23305) and adequately demonstrated that the use of
phosphogypsum in government road construction projects is at least as
protective of human health, in the short- and long-term, as stacking.
The EPA established specific terms and conditions including continued
control, maintenance, and use of government roads constructed with
phosphogypsum, which addressed concerns with potential exposures from
abandoned roads (85 FR 66550).
Because Petitioners have failed to provide sufficient information
to support the request to reverse the 1991 Bevill regulatory
determination for phosphogypsum and process wastewater, the EPA is
proposing to deny the Petition.
Furthermore, phosphogypsum and process wastewater are excluded from
management as hazardous waste pursuant to the Bevill regulatory
determination. Because the Petition does not adequately support a
decision to reconsider the Bevill status of phosphogypsum and process
wastewater under RCRA, further evaluation of Petitioner's secondary
request to govern phosphogypsum and process wastewater as hazardous
waste under RCRA Subtitle C is also not warranted. For the same reason,
the EPA declines to further consider regulatory changes under the 1984
RCRA Simpson Amendment (Subtitle C-Minus), which provides flexibility
for the EPA to modify some of the requirements of Subtitle C for
special wastes that the EPA determines are hazardous.
For the reasons set forth above, the EPA finds that the Petition
has not provided sufficient information, beyond what was already
considered during the EPA's evaluation of phosphogypsum and process
wastewater (56 FR 27300; USEPA, 1990a; USEPA, 1998a), to consider
additional modifications authorized by 42 U.S.C. 6924(x).
V. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents
considered by the EPA. For assistance in locating these documents,
please consult the person listed under FOR FURTHER INFORMATION CONTACT.
1. CBD. Notice of Intent to Sue for Failure to Perform a
Nondiscretionary Duty under the Resource Conservation and Recovery
Act. February 13, 2024.
2. CBD. Notice of Petition for Rulemaking Pursuant to section
7004(A) of the Resource Conservation and Recovery Act, 42 U.S.C.
6974(A); section 21 of the Toxic Substances Control Act, 15 U.S.C.
2620; and section 553(E) of the Administrative Procedure Act, 5
U.S.C 553(E), Concerning the Regulation of Phosphogypsum and Process
Wastewater from Phosphoric Acid Production. February 8, 2021.
3. USEPA. Identification and Description of Mineral Processing
Sectors; Technical Background Document; Final. EPA 530-R-99-022.
April 1998a.
4. USEPA. Report to Congress on Special Wastes from Mineral
Processing: Summary and Findings. EPA 530-SW-90-070B. July 1990a.
5. USEPA. Environmental Fact Sheet: Agency Releases Report to
Congress on Special Wastes from Mineral Processing. EPA 530-SW-90-
070A. July 1990b.
6. USEPA. Identification and Listing of Hazardous Waste. 45 FR
76618. November 19, 1980.
7. Concerned Citizens of Adamstown vs. EPA, No. 84-3041, D.D.C,
August 21, 1985.
8. USEPA. Report to Congress on Wastes from the Extraction and
Beneficiation of Metallic Ores, Phosphate Rock, Asbestos, Overburden
from Uranium Mining, and Oil Shale. EPA 530-SW-85-033. December
1985.
9. USEPA. Regulatory Determination for Wastes from the Extraction
and Beneficiation of Ores and Minerals. 51 FR 24496. July 3, 1986.
10. USEPA. Mining Waste Exclusion. 50 FR 40292. October 2, 1985.
11. USEPA. Mining Waste Exclusion; Withdrawal of Proposed Provision.
51 FR 36233. October 9, 1986.
12. Environmental Defense Fund v. EPA, 852 F.2d 1316 (DC Cir 1988),
cert. denied, 109 S. Ct. 1120 (1989).
13. USEPA. Mining Waste Exclusion I. 54 FR 36592. September 1, 1989.
14. USEPA. Mining Waste Exclusion; Section 3010 Notification for
Mineral Processing Facilities; Designated Facility Definition;
Standards Applicable to Generators of Hazardous Waste. 55 FR 2322.
January 23, 1990.
15. USEPA. National Emission Standards for Hazardous Air Pollutants.
54 FR 38044. September 14, 1989.
16. USEPA. National Emission Standards for Hazardous Air Pollutants;
National Emissions Standards for Radon Emissions from Phosphogypsum
Stacks. 57 FR 23305. June 3, 1992.
17. USEPA. Final Regulatory Determination for Special Wastes from
Mineral Processing (Mining Waste Exclusion). Bevill Determination.
56 FR 27300. June 13, 1991.
[[Page 22154]]
18. Phosphoric Acid Waste Dialogue FACA Committee. Report on the
Activities and Recommendations of the Phosphoric Acid Waste Dialogue
FACA Committee. September 1995.
19. USEPA. Damage Cases and Environmental Releases from Mines and
Mineral Processing Wastes. EPA 530-R-99-023. April 1998b.
20. USEPA. Risks Posed by Bevill Wastes. RCRA Docket No. F-98-2P4F-
FFFFF. April 1998c.
21. USEPA. Petition for Rulemaking under TSCA; Reasons for Agency
Response; Denial of Requested Rulemaking. 86 FR 27546. May 21, 2021.
22. USEPA. Approval of the Request for Other Use of Phosphogypsum by
the Fertilizer Institute. 85 FR 66550. October 20, 2020.
Lee Zeldin,
Administrator.
[FR Doc. 2026-08097 Filed 4-23-26; 8:45 am]
BILLING CODE 6560-50-P
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