EPA Reverses Course on Using Radioactive Byproduct in Road Construction

Morgan Lewis - Up & Atom
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Morgan Lewis - Up & Atom

The US Environmental Protection Agency (EPA) reversed a Trump administration decision involving use of nuclear materials. On June 30, the EPA announced that it was “withdrawing, revoking and rescinding” its conditional approval of The Fertilizer Institute’s (TFI) request to approve the use of phosphogypsum (PG) in road construction. PG is a radioactive byproduct of fertilizer production and is regulated by the EPA. This action follows the EPA’s earlier announcement that it is reviewing a Trump administration decision on cleanup standards for radionuclide-contaminated effluent at a Tennessee Superfund site, which we reported on. Together, the two decisions confirm that the EPA continues to scrutinize prior agency decisions and to more strictly regulate radioactive materials.

For background, PG is a byproduct from fertilizer production from phosphate rock. Because PG contains naturally occurring uranium and thorium, along with their daughter isotopes radium, radon, and polonium, PG has few commercial uses and is stored in large piles called stacks. The EPA regulates these stacks and prohibits the use of PG except for outdoor agriculture, (not to exceed an average of 10 pCi/g) research and development, and other EPA-approved uses. The EPA’s regulations require requests for an approved use to contain nine categories of information. This information includes the location and mailing address of each facility where the PG will be handled, processed, and used. The EPA also requires that the request be signed by a corporate officer or public official in charge of the facility.

In October 2015, TFI submitted a request to the EPA asking for approval to use PG in road construction projects. The request included information on the use of PG in road construction, the average concentration of radium-226 in the PG to be used, and an evaluation of various exposure scenarios to road construction workers and nearby residents. What the request did not include was the location and address of the facilities where PG would be handled, processed, and used and the quantity of PG to be used. The request also lacked the required signature from a corporate officer of public official.

Even though TFI’s request lacked certain required information, then-Administrator Andrew Wheeler conditionally approved the use of PG in road construction. But he required that the owner of the stack or the government entity constructing the road supply all the information required by EPA regulations before removing any PG from a stack. Several environmental groups challenged this decision in the US Court of Appeals for the DC Circuit. They also petitioned the EPA to reconsider its decision under Section 307(d) of the Clean Air Act (CAA) (42 U.S.C. § 7607(d)(7)(B)).

On June 30, EPA Administrator Michael Regan announced that the EPA was, effectively immediately, “withdrawing, revoking and rescinding” its prior conditional approval. According to Administrator Regan, he was doing so under his “discretionary authority” and not under CAA Section 307(d), which he found did not apply.

Administrator Regan explained that the EPA has no latitude to consider a request like TFI’s that did not include all of the required information. He stated that because TFI’s request was incomplete, the EPA had to deny it. He also found that former Administrator Wheeler’s attempt to condition his approval on the receipt of a complete application was not allowed by EPA regulations. Administrator Regan did state, however, that his revocation of the EPA’s prior decision is “without prejudice” to a subsequent or further proper request for the use of PG.

TFI or another entity could file a complete application to use PG in a road project. Administrator Regan’s decision does not indicate how the EPA might rule on future requests. Even so, it is clear that the EPA continues to scrutinize Trump-era decisions and may be signaling a shift in its regulatory approach for radioactive materials.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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