This docum ent does not reflect the intent or official position of the bill sponsor or House of Representatives.
STORAGE NAME: h1191d.ISC
DATE: 4/13/2023
HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/HB 1191 Use of Phosphogypsum
SPONSOR(S): Transportation & Modals Subcommittee, McClure and others
TIED BILLS: IDEN./SIM. BILLS: CS/SB 1258
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Transportation & Modals Subcommittee 14 Y, 3 N, As CS Johnson Hinshelwood
2) Infrastructure & Tourism Appropriations
Subcommittee
14 Y, 0 N Hicks Davis
3) Infrastructure Strategies Committee Lewis Harrington
SUMMARY ANALYSIS
Phosphogypsum (PG) is calcium sulfate, which is created during the phosphate manufacturing process. For
every ton of phosphorus produced, approximately five tons of PG is made. Under federal Environmental
Protection Agency (EPA) guidelines, PG may be used for certain agricultural and research purposes under
certain conditions. PG may also be used for other purposes with EPA approval.
The bill authorizes the Department of Transportation (DOT) to undertake demonstration projects using PG from
phosphate production in road construction aggregate material. The bill requires DOT to conduct a study to
evaluate the suitability of using PG as a construction aggregate material. DOT may consider any prior or
ongoing studies of PG’s road suitability in the fulfillment of this duty. The study and a determination of
suitability must be completed by January 1, 2024. Upon DOT’s determination of suitability, PG from phosphate
production may be used as a construction aggregate material in accordance with the EPA’s approval for use.
The bill provides that PG used in accordance with an allowed use expressly specified in EPA regulations, or
pursuant to an express EPA approval for the specific use, is not solid waste and is an allowed use in this state.
The bill also provides that PG may be placed in a PG stack permitted by the Department of Environmental
Protection.
The bill has an indeterminate fiscal impact on state government and the private sector. The bill has no fiscal
impact on local governments. See Fiscal Analysis Section.
The bill provides an effective date of July 1, 2023.
STORAGE NAME: h1191d.ISC PAGE: 2
DATE: 4/13/2023
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Current Situation
Phosphogypsum (PG) is calcium sulfate, which is created during the phosphate manufacturing
process. For every ton of phosphorus produced, approximately five tons of PG is made. PG is a
durable product. It is stacked while wet and hardens to hold its shape. In the United States, the use of
PG has been limited to certain agricultural applications and scientific research. In other countries, PG is
looked at as a beneficial material that can be used in agriculture, forestry, building materials, concrete
and more.
1
In Florida, there are currently about 1 billion tons of PG stacked in 24 stacks with 30 million new tons
generated each year.
2
Federal Regulation of Phosphogypsum
Under federal Environmental Protection Agency (EPA) rules, PG is defined as the solid waste
byproduct which results from the process of wet acid phosphorus production.
3
In 1989, stacking of PG became necessary when the EPA banned the use of PG. In 1992, this rule was
modified to allow the use of PG with a low average radium-226 concentration for agricultural application
as a soil amendment.
4
Under the EPA’s rules, each person who generates PG must place all PG in stacks. PG may be
removed from a PG stack only as expressly provided by the EPA’s rules. After a PG stack has become
an inactive stack, the owner or operator must assure that the stack does not emit more than a specified
amount of radon-222 into the air.
5
However, PG may be lawfully removed from the stack for use for
outdoor agricultural research and development and agricultural field use if certain requirements are
met.
6
PG may also be used for distribution for indoor research and development if certain conditions
are met.
7
PG may not be removed from a stack and distributed or used for other purposes without EPA
approval.
8
In 2019, the Fertilizer Institute petitioned the EPA for approval of additional uses of PG on government
road construction projects. On October 14, 2020, the EPA approved the Fertilizer Institute’s request to
use PG in government road construction projects subject to certain terms and conditions. Under the
Clean Air Act, the EPA may approve a request for a specific use of PG if it is determined that the
proposed use is at least as protective of human health as placement in a stack.
9
Upon further review, the EPA found that the Fertilizer Institute’s request did not provide all the
information required for a complete request. On June 30, 2021, the EPA withdrew its previously
granted conditional approval to use PG in government road construction projects. The decision was
effective immediately, and PG remains prohibited from use in road construction.
10
1
Phosphate Innovation Initiative, PG Questions & Answers: What is Phosphogypsum (PG)?, https://phosphateinnovation.com/qa/ (last
visited Mar. 8, 2023).
2
Florida Industrial and Phosphate Research Institute, Phosphogypsum Stacks, https://fipr.floridapoly.edu/about-us/phosphate-
primer/phosphogypsum-stacks.php (last visited Mar. 11, 2023).
3
14 C.F.R. § 61.201(b).
4
Supra note 2.
5
14 C.F.R. § 61.202.
6
14 C.F.R. § 61.204.
7
14 C.F.R. § 61.205.
8
14 C.F.R. § 61.206(a).
9
Environmental Protection Agency (EPA), Request to Use Phosphogypsum in Government Road Projects: Supporting Documents.
https://www.epa.gov/radiation/request-use-phosphogypsum-government-road-projects-supporting-documents (last visited Mar 8, 2023).
10
Id. STORAGE NAME: h1191d.ISC PAGE: 3
DATE: 4/13/2023
Construction Aggregates Certified for Use by Department of Transportation
Aggregates are raw materials such as gravel, crushed stone, and sand. When combined with a binding
medium such as water, cement, or asphalt, aggregates form compound materials, including asphalt
concrete.
11
Section 334.044(10)(d), F.S., authorizes the Department of Transportation (DOT) to adopt
rules relating to approval of aggregate and other material sources.
Section 334.179, F.S., provides that notwithstanding any law, rule, or ordinance to the contrary, a local
government may not adopt standards or specifications that are contrary to DOT’s standards or
specifications for permissible use of aggregates that have been certified for use. The term “certified for
use” means that the aggregates have been certified by the producer in accordance with DOT rules.
12
DOT’s rules regarding aggregates
13
provide a standardized method for producers of construction
aggregates to apply for, receive, and maintain DOT approval of construction aggregate sources for use
on DOT projects. Source and product approval, and maintenance of an on-going effective Quality
Control Program comprise DOT’s primary methods of determining acceptability of aggregate on DOT
projects.
14
DOT’s Aggregate Acceptance Unit within the Materials Office ensures the quality of aggregates in
Florida’s transportation system by approving and monitoring aggregate sources. It develops, reviews
and recommends changes to DOT’s policies and specifications for aggregate materials used in
construction. It also conducts ongoing DOT research and evaluation of aggregate performance, base
materials including new aggregate sources and recyclable waste products.
15
Use of Recyclable Materials in Road Construction
Current law provides legislative intent that DOT continue to expand its current use of recovered
materials in its construction programs.
16
The Legislature declares it to be in the public interest to find alternative ways to use certain recyclable
materials that currently are part of the solid waste stream and that contribute to problems of declining
space in landfills. To determine the feasibility of using certain recyclable materials for paving materials,
DOT may undertake demonstration projects using the following materials in road construction:
Ground rubber from automobile tires in road resurfacing or subbase materials for roads;
Ash residue from coal combustion byproducts for concrete and ash residue from waste
incineration facilities and oil combustion byproducts for subbase material;
Recycled mixed-plastic material for guardrail posts or right-of-way fence posts;
Construction steel, including reinforcing rods and I-beams, manufactured from scrap metals
disposed of in the state; and
Glass, and glass aggregates.
17
DOT must review and revise existing bid procedures and specifications for the purchase or use of
products and materials to eliminate any procedures and specifications that explicitly discriminate
against products and materials with recycled content, except where such procedures and specifications
are necessary to protect the health, safety, and welfare of the people of this state.
18
DOT must also
review and revise its bid procedures and specifications on a continuing basis to encourage the use of
11
Association of Equipment Manufacturers, Construction Aggregates 101: What They Are (And Why They Matter) (July 8, 2021),
https://www.aem.org/news/construction-aggregates-101-what-they-are-and-why-they-matter (Last visited Mar. 8, 2023).
12
Section 334.179, F.S., does not apply to a multicounty independent special district created by a special act of the Legislature.
13
R. 14-103, F.A.C.
14
R. 14-103.002, F.A.C.
15
DOT, Aggregate Acceptance, https://www.fdot.gov/materials/laboratory/geotechnical/aggregates/laboratory.shtm (last visited Mar. 8,
2023).
16
S. 336.044(1), F.S.
17
S. 336.044(2), F.S.
18
S. 336.044(3), F.S. STORAGE NAME: h1191d.ISC PAGE: 4
DATE: 4/13/2023
products and materials with recycled content and shall, in developing new procedures and
specifications, encourage the use of products and materials with recycled content.
19
Resource Recovery and Management
Chapter 403, part IV, F.S., relates to environmental resource recovery and management and is
intended to provide for a coordinated statewide solid waste management program.
20
For purposes of that part, the term “solid waste” is defined to mean sludge unregulated under the
federal Clean Water Act or Clean Air Act, sludge from a waste treatment works, water supply treatment
plant, or air pollution control facility, or garbage, rubbish, refuse, special waste, or other discarded
material, including solid, liquid, semisolid, or contained gaseous material resulting from domestic,
industrial, commercial, mining, agricultural, or governmental operations.
21
Section 403.7045(1)(f), F.S., provides that industrial byproducts may not be regulated pursuant to the
act, if:
A majority of the industrial byproducts are demonstrated to be sold, used, or reused within 1
year.
The industrial byproducts are not discharged, deposited, injected, dumped, spilled, leaked, or
placed upon any land or water so that such industrial byproducts, or any constituent thereof,
may enter other lands or be emitted into the air or discharged into any waters, including
groundwaters, or otherwise enter the environment such that a threat of contamination in excess
of applicable department standards and criteria or a significant threat to public health is caused.
The industrial byproducts are not hazardous wastes.
22
Sludge from an industrial waste treatment works that meets these exemption requirements is not solid
waste.
Sections 403.4154 and 403.4155, F.S., provide for a PG management program within the Department
of Environmental Protection (DEP). DEP’s Phosphate Management Program regulates the design,
construction, operation, and maintenance of PG stack systems, the wastewater systems associated
with the chemical plants that process phosphate ore into fertilizer products.
23
Effect of the Bill
The bill authorizes DOT to undertake demonstration projects using PG from phosphate production in
road construction aggregate material.
The bill requires DOT to conduct a study to evaluate the suitability of using PG as a construction
aggregate material. DOT may consider any prior or ongoing studies of PG’s road suitability in the
fulfillment of this duty. The study and a determination of suitability must be completed by January 1,
2024.
Upon DOT’s determination of suitability, PG from phosphate production may be used as a construction
aggregate material in accordance with the EPA’s approval for use.
The bill provides that PG used in accordance with an allowed use expressly specified in EPA
regulations, or pursuant to an express EPA approval for the specific use, is not solid waste and is an
19
S. 336.044(4), F.S.
20
S. 403.702(1), F.S.
21
S. 403.703(35), F.S.
22
Section 403.703(14), F.S., defines the term “hazardous waste” to mean solid waste, or a combination of solid wastes, which, because
of its quantity, concentration, or physical, chemical, or infectious characteristics, may cause, or significantly contribute to, an increase in
mortality or an increase in serious irreversible or incapacitating reversible illness or may pose a substantial present or potential hazard
to human health or the environment when improperly transported, disposed of, stored, treated, or otherwise managed. The term does
not include human remains that are disposed of by persons licensed under ch. 497, F.S.
23
Department of Environmental Protection, Phosphate Management Program, https://floridadep.gov/water/phosphate (last visited Mar.
15, 2023). STORAGE NAME: h1191d.ISC PAGE: 5
DATE: 4/13/2023
allowed use in this state. The bill also provides PG may be placed in a DEP-permitted PG stack
system.
24
The bill has an effective date of July 1, 2023.
B. SECTION DIRECTORY:
Section 1. Amends s. 336.044, F.S., relating to the use of recyclable materials in construction.
Section 2. Creates s. 337.02611, F.S., relating to phosphogypsum as a construction aggregate
material; study.
Section 3. Amends s. 403.7045, F.S., relating to the application of act and integration with other
acts.
Section 4. Provides an effective date of July 1, 2023.
II. FISCAL ANALYSIS & ECONOMIC IMPACT STATEMENT
A. FISCAL IMPACT ON STATE GOVERNMENT:
1. Revenues:
None.
2. Expenditures:
There is an indeterminate negative fiscal impact to the State Transportation Trust Fund associated
with DOT incurring expenditures to conduct a study to evaluate the suitability of PG as a
construction aggregate material for use in road construction. The bill does not provide a specific
appropriation to cover the cost of this study, therefore, any costs incurred would be absorbed within
existing DOT resources.
B. FISCAL IMPACT ON LOCAL GOVERNMENTS:
1. Revenues:
None.
2. Expenditures:
None.
C. DIRECT ECONOMIC IMPACT ON PRIVATE SECTOR:
The bill does not require the use of PG as a construction aggregate material in road construction.
However, if the study concludes that PG is suitable for such use, and if PG is at some future time
actually used in road construction, the private sector may benefit from the abundant supply of PG and
may benefit from the resulting resolution of PG stacks. The fiscal impact is indeterminate.
D. FISCAL COMMENTS:
None.
24
DEP permits PG stacks under ss. 403.4154 and 403.4155, F.S. STORAGE NAME: h1191d.ISC PAGE: 6
DATE: 4/13/2023
III. COMMENTS
A. CONSTITUTIONAL ISSUES:
1. Applicability of Municipality/County Mandates Provision:
Not applicable. The bill does not appear to affect county or municipal governments.
2. Other:
None.
B. RULE-MAKING AUTHORITY:
None.
C. DRAFTING ISSUES OR OTHER COMMENTS:
None.
IV. AMENDMENTS/COMMITTEE SUBSTITUTE CHANGES
On March 15, 2023, the Transportation & Modals Subcommittee adopted one amendment and reported the
bill favorably as a committee substitute. The amendment provides that PG used in accordance with an
allowed use expressly specified in EPA regulations or pursuant to an express EPA approval for the specific
use is not solid waste and is an allowed use in this state. The amendment also provides that PG may be
placed in a PG stack permitted by DEP.
The staff analysis has been updated to reflect the committee substitute.