[Federal Register Volume 59, Number 123 (Tuesday, June 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-15578]
[Federal Register: June 28, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[OPPTS-400063A; FRL-4767-5]
Barium Sulfate; Toxic Chemical Release Reporting; Community
Right-To-Know
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is deleting barium sulfate from the category ``barium
compounds'' on the list of toxic chemicals for which reporting is
required under section 313 of the Emergency Planning and Community
Right-to-Know Act of 1986 (EPCRA). This action is based on EPA's
conclusion that barium sulfate meets the deletion criteria of EPCRA
section 313(d)(3). By promulgating this rule, EPA is relieving
facilities of their obligation to report releases of barium sulfate
that occurred during the 1993 reporting year, and releases that will
occur in the future.
DATES: This rule is effective June 28, 1994.
FOR FURTHER INFORMATION CONTACT: Maria J. Doa, Petitions Coordinator,
202-260-9592, for specific information regarding this final rule. For
further information on EPCRA section 313, contact the Emergency
Planning and Community Right-to-Know Information Hotline, Environmental
Protection Agency, Mail Stop 5101, 401 M St., SW., Washington, DC
20460, Toll free: 800-535-0202, Toll free TDD: 800-553-7672.
SUPPLEMENTARY INFORMATION:
I. Introduction
A. Statutory Authority
This action is issued under section 313(d) and (e)(1) of the
Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C.
11023). EPCRA is also referred to as Title III of the Superfund
Amendments and Reauthorization Act (SARA) of 1986.
B. Background
Section 313 of EPCRA requires certain facilities manufacturing,
processing, or otherwise using listed toxic chemicals to report their
environmental releases of such chemicals annually. Beginning with the
1991 reporting year, such facilities also must report pollution
prevention and recycling data for such chemicals, pursuant to section
6607 of the Pollution Prevention Act (42 U.S.C. 13106, ``PPA'').
Section 313 established an initial list of toxic chemicals that was
comprised of more than 300 chemicals and 20 chemical categories.
Section 313(d) authorizes EPA to add chemicals to or delete chemicals
from the list, and sets forth criteria for these actions. Under section
313(e), any person may petition EPA to add chemicals to or delete
chemicals from the list. EPA has added chemicals to and deleted
chemicals from the original statutory list.
EPA issued a statement of petition policy and guidance in the
Federal Register of February 4, 1987 (52 FR 3479), to provide guidance
regarding the recommended content and format for petitions. On May 23,
1991 (56 FR 23703), EPA issued guidance regarding the recommended
content of petitions to delete individual members of the section 313
metal compound categories.
II. Effective Date
This action becomes effective immediately. Thus, the last year in
which facilities had to report releases of barium sulfate was 1993,
covering releases that occurred in 1992. The effect of this deletion is
that, since barium sulfate will not be on the section 313 list when
facilities report in 1994 for releases that occured in 1993, these
reports and all subsequent reports need not include barium sulfate
release data. Facilities will therefore not have to collect release
information for any releases of barium sulfate that occur during the
1993 reporting year or for any releases that occur in the future.
Section 313(d)(4) provides that ``[a]ny revision [to the section
313 list] made on or after January 1 and before December 1 of any
calendar year shall take effect beginning with the next calendar year.
Any revision made on or after December 1 and before January 1 shall
take effect beginning with the calendar year following the next
calendar year.'' The Agency interprets this delayed effective date
provision to apply only to actions that add chemicals to the section
313 list. For deletions, the Agency may, in its discretion, make such
actions immediately effective. An immediate effective date is
authorized, in these circumstances, under 5 U.S.C. section 553(d)(1)
since a deletion from the section 313 list relieves a regulatory
restriction.
The Agency believes that the purpose behind the section 313(d)(4)
effective date provision is to allow facilities adequate planning time
to incorporate newly added chemicals to their TRI release data
collection processes. A facility would not need additional planning
time to not report releases of a given chemical. Thus, a reasonable
construction of section 313(d)(4), given the overall purpose and
structure of EPCRA -- to provide the public with information about
chemicals which meet the criteria for inclusion on the section 313 list
-- is to apply the delayed effective date requirement only to additions
to the list. Where the Agency has determined, as it has with barium
sulfate, that a chemical does not satisfy the criteria of section
313(d)(2)(A)-(C), no purpose is served by requiring facilities to
collect release data or file release reports for that chemical, or,
therefore, by leaving that chemical on the section 313 list for any
additional period of time. Nothing in the legislative history suggests
that 313(d)(4) was intended to apply to deletions as well as additions;
indeed, such a construction would be incongruous, since deleted
chemicals, by definition, do not satisfy the criteria for being on the
section 313 list and their deletion from that list should not be
delayed in the absence of any compelling reason to the contrary. This
construction of section 313(d)(4) is also consistent with previous
rules deleting chemicals from the section 313 list. Indeed, the Agency
has not given any of its rules deleting chemicals from the section 313
list the delayed effective dates specified in section 313(d)(4).
III. Description of Petition and Rationale for Delisting
A. Petition and Proposed Action
On September 24, 1991, EPA received a petition from the Chemical
Products Corporation (CPC) to delete barium sulfate (BaSO4) from
the list of toxic chemicals established under EPCRA section 313. A
second petition, submitted by the Dry Color Manufacturer's Association
(DCMA), to delete barium sulfate was received on November 6, 1991. Both
petitions are based on the contention that barium sulfate is not toxic
and does not meet any of the statutory criteria under EPCRA section
313(d)(2).
Following a review of the petitions, EPA granted the petitions and
issued a proposed rule in the Federal Register of June 11, 1993 (58 FR
32622), to delete barium sulfate from the category ``barium compounds''
on the list of toxic chemicals under EPCRA section 313. EPA's proposal
was based on its conclusion that BaSO4 meets the EPCRA section
313(d)(3) criteria for deletion from the list. With respect to
deletions, EPCRA section 313(d)(3) provides that ``[a] chemical may be
deleted if the Administrator determines there is not sufficient
evidence to establish any of the criteria described in paragraph
[(d)(2)(A)-(C)].'' Specifically, in the proposal EPA preliminarily
concluded that there is not sufficient evidence to establish that
BaSO4 causes adverse acute human health effects, chronic human
health effects, or environmental toxicity. EPA's rationale is detailed
in the proposed rule and is based on the Agency's review of the
petitions, as well as other relevant materials.
B. Rationale for Delisting
After reviewing comments received and other relevant information,
EPA has concluded that the assessment set out in the proposed rule
should be affirmed. Therefore, this final rule is based on EPA's
conclusion that BaSO4 is essentially non-toxic to humans and the
environment, and thus meets the EPCRA section 313(d)(3) criterion for
delisting (i.e., it does not meet any of the EPCRA section 313(d)(2)
listing criteria).
In reaching this conclusion, EPA considered the toxicity of the
barium ion because another potential source of barium sulfate toxicity
could be from the barium ion. EPA initially analyzed the availability
of barium ion. If the ion is not available, barium sulfate cannot cause
toxicity due to barium ion. EPA has concluded that barium ion from
barium sulfate will not be available to humans or the environment in
any way that would affect the Agency's decision under EPCRA section
313(d)(3). This is because barium ion from barium sulfate will occur at
significant levels only under anaerobic conditions in stagnant water
bodies that are cut-off from surface and ground waters. As discussed
below, such conditions do not give rise to human health or
environmental concerns under the EPCRA section 313(d)(2) criteria.
Because intact BaSO4 is acutely toxic only at levels that
greatly exceed releases and resultant exposures, BaSO4 cannot
reasonably be anticipated to cause ``. . .significant adverse acute
human health effects at concentration levels that are reasonably likely
to exist beyond facility site boundaries as a result of continuous, or
frequently recurring releases.'' EPA believes that barium ion
anaerobically released from barium sulfate into isolated stagnant water
bodies cannot reasonably be anticipated to result in adverse effects on
human health because people do not routinely use these waters as
sources of drinking water or food, or for recreation. Under other
conditions, barium ion could not be an issue because it is not
available. Thus, EPA has concluded that BaSO4 does not meet the
toxicity criterion for listing under EPCRA section 313(d)(2)(A).
EPA has concluded that BaSO4 does not meet the toxicity
criteria of EPCRA section 313(d)(2)(B) because BaSO4 cannot
reasonably be anticipated to cause cancer, developmental toxicity,
reproductive toxicity, neurotoxicity, gene mutations, or chronic
toxicity. Intact BaSO4 is not known to cause such effects, and for
the reasons discussed above barium ion will not be available to cause
chronic human toxicity.
EPA has concluded that BaSO4 does not meet the EPCRA section
313(d)(2)(C) toxicity criteria because of the lack of availability of
soluble barium from barium sulfate. Moreover, ecotoxicity data indicate
that barium ion generated in low sulfate, anaerobic environments cannot
reasonably be anticipated to result in adverse effects on the
environment of sufficient seriousness to warrant reporting under EPCRA
section 313.
C. Response to Comments
EPA received 34 comments on the proposed rule, all in support of
the deletion of barium sulfate. While all the comments received were in
support of the deletion, a few commenters requested clarification on
some points discussed in the proposed rule.
Two commenters wanted clarification of the statement regarding the
water solubility of barium sulfate and how it relates to the maximum
contaminant level (page 32624, second column, first full paragraph).
EPA agrees with the commenters that, at the water solubility of 2.4 mg/
L (2.4 ppm) at 25 deg.C, there are 1.4 ppm of barium ion and 1.0 ppm
of sulfate ion, and that the 1.4 ppm concentration of barium ion is
below the maximum contaminant level of 2 mg/L (2 ppm) established by
EPA under the Safe Drinking Water Act.
Many commenters requested clarification of EPA's characterization
of the regulatory status of barium sulfate under the Resource
Conservation and Recovery Act (RCRA) and the disposal of drilling
fluids. Specifically, one commenter stated that EPA did not clarify
that discharges of drilling fluids are in fact exempt from EPCRA as
well as RCRA. Another commenter stated that EPA should clarify the
statement in the proposed rule that there are no Federal regulations
prohibiting land disposal of drilling fluids to include the possibility
of state regulations. EPA agrees with the commenters that some
clarification is needed on these issues. 40 CFR 261.4(b)(5) exempts
from Federal regulation as hazardous waste drilling fluids and other
wastes from the exploration, development, or production of crude oil,
natural gas, or geothermal energy. Therefore, EPA regulations do not
prohibit the land disposal of drilling fluids. This activity, however,
may be regulated by state agencies. In addition, the commenter added
that underground injection controls pursuant to the Safe Drinking Water
Act and the National Pollutant Discharge Elimination System program
under the Clean Water Act also regulate drilling waste. EPA does not
agree with the comment that disposal of drilling fluids is totally
exempt from EPCRA reporting. Although the discharge of drilling fluids
is not specifically reportable under EPCRA section 313, the drilling
fluids may contain a reportable component and the discharge of that
chemical would require reporting if all applicable criteria are met.
One commenter wanted clarification of the statements ``Although the
TCLP may indicate that barium sulfate is not a hazardous waste as
defined by RCRA. ..'' and later, ``Furthermore, drilling fluids are
specifically exempted and are not considered hazardous wastes under
RCRA including those containing barium sulfate, even if the barium
sulfate itself meets the TCLP (40 CFR 261.4)'' (page 32624, column 1,
second and third full paragraphs). To clarify, barium sulfate is not a
listed hazardous waste as defined by RCRA. Furthermore, the exemption
under 40 CFR 261.4(b)(5) for barium sulfate in drilling fluids may
apply. EPA notes that barium is one of the contaminants tested for in
the Toxicity Characteristics (TC) of 40 CFR 261.24. However, due to its
limited water solubility, barium sulfate is not expected to produce an
extractable concentration of barium that exceeds the maximum allowable
concentration of soluble barium (100 mg/L) using the Toxicity
Characteristic Leaching Procedure (TCLP) as described in 40 CFR 261.24.
Thus, in these cases, land disposal of barium sulfate is not regulated
under RCRA subtitle C. However, EPA reiterates that the TCLP is not
conducted under anaerobic (reducing) conditions and that it is possible
for barium sulfate to liberate soluble barium under such conditions.
Thus, even though land disposal of barium sulfate is permissible under
RCRA if TC levels for barium are not exceeded, such disposal may lead
to the availability of soluble barium.
One commenter claimed that throughout the proposal EPA placed too
much emphasis on the release of barium ion from barium sulfate under
anaerobic conditions. In addition, the commenter added that it is
unlikely that disposal of drilling fluids as solid wastes would
``encourage perched water and anaerobic digestion of barium sulfate in
low sulfate environments.'' In the proposed rule EPA wanted to make
clear that although barium sulfate is poorly soluble (i.e., does not
significantly dissociate to barium and sulfate ions) in water, it is
still possible for this substance to liberate barium ion in water as a
result of anaerobic degradation. In the proposed rule EPA cited several
studies which clearly show that barium ion concentrations can become
elevated as a result of anaerobic degradation of barium sulfate. EPA
agrees with the commenter that it is probably unlikely that discharge
of barium sulfate-containing drilling fluids will encourage the
formation of stagnant waterbodies, where anaerobic degradation is
likely to occur. In its discussions on the availability of barium ion
from barium sulfate (units IV.D. and E. of the proposed rule) the
Agency did not specifically address discharges of drilling fluids
containing barium sulfate. Although EPA cited studies that showed
elevated barium ion concentrations in experiments which used drilling
fluids that contained barium sulfate, the main purpose of these
discussions is to illustrate that under certain environmental
conditions barium ion can become available from barium sulfate,
regardless of the source of the barium sulfate.
One commenter stated in the proposal that EPA does not clearly make
the distinction that barium is not a heavy metal (page 32626, column 3,
first full paragraph). EPA agrees that barium is not a heavy metal, and
it is not EPA's intent to imply that barium is or can be viewed as a
heavy metal. EPA was describing how the solubility of barium sulfate
may be influenced by factors other than sulfate concentration. EPA used
references which describe how substances normally found in the
environment (e.g., fulvic and humic acids, bicarbonate, and hydroxyl
ions) or soil particle grain size can enhance the solubility of
otherwise poorly soluble metal salts, such as salts of heavy metals.
EPA maintains that the cited studies provide sufficient evidence that
the solubility of any metal salt may be significantly affected by a
variety of naturally occurring environmental conditions. The same
commenter provided additional information on the toxicity of barium
ion. EPA is considering this information but is not addressing it in
this final rule since it is not relevant to this delisting. In
accordance with the May 23, 1991 guidance, this delisting decision is
made on the basis of availability of barium ion and not on barium ion
toxicity. If the ion is not available, its inherent toxicity is
irrelevant because it cannot cause adverse effects. Today's action is
not intended, and should not be inferred to affect the status of
BaSO4 under any statute or program other than the Toxic Chemical
Release Inventory reporting under EPCRA section 313 and PPA section
6607.
IV. Rulemaking Record
The record supporting this final rule is contained in the docket
number OPPTS-400063A. All documents, including an index of the docket,
are available in the TSCA Document Receipt Office from noon to 4 p.m.,
Monday through Friday, excluding legal holidays. The TSCA Document
Receipt Office is located at EPA Headquarters, Rm. NE-B607, 401 M St.,
SW., Washington, DC 20460.
V. Regulatory Assessment Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to review by the Office of Management and Budget
(OMB) and the requirements of the Executive Order. Section 3(f) of the
Order defines a ``significant regulatory action'' as an action likely
to lead to a rule (1) Having an annual effect on the economy of $100
million or more, or adversely and materially affecting a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or communities
(also referred to as ``economically significant''); (2) creating
serious inconsistency or otherwise interfering with an action taken or
planned by another agency; (3) materially altering the budgetary
impacts of entitlements, grants, user fees, or loan programs; or (4)
raising novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in this Executive
Order.
Pursuant to the terms of this Executive Order, it has been
determined that this final rule is not ``significant'' and therefore
not subject to OMB review.
B. Regulatory Flexibility Act
Under the Regulatory Flexibility Act of 1980, the Agency must
conduct a small business analysis to determine whether a substantial
number of small entities would be significantly affected by the final
rule. Because this final rule eliminates an existing requirement, it
would result in cost savings to facilities, including small entities.
C. Paperwork Reduction Act
This final rule does not have any information collection
requirements under the provisions of the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 372
Environmental protection, Chemicals, Community right-to-know,
Reporting and recordkeeping requirements, and Toxic chemicals.
Dated: June 16, 1994.
Lynn R. Goldman,
Assistant Administrator, Office of Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR part 372 is amended to read as follows:
Part 372--[AMENDED]
1. The authority citation for part 372 continues to read as
follows:
Authority: 42 U.S.C. 11023 and 11048.
Sec. 372.65 [Amended]
2. In Sec. 372.65(c), by adding the following language to the
barium compounds listing ``(except for barium sulfate, (CAS No. 7727-
43-7).''
[FR Doc. 94-15578 Filed 6-27-94; 8:45 am]
BILLING CODE 6560-50-F