[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