[Federal Register Volume 63, Number 15 (Friday, January 23, 1998)]
[Notices]
[Pages 3566-3571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-1644]


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ENVIRONMENTAL PROTECTION AGENCY

[OPPTS-400056; FRL-5762-2]


Phosphoric Acid; Toxic Chemical Release Reporting; Community 
Right-to-Know

AGENCY: Environmental Protection Agency (EPA).

ACTION: Denial of petition.

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SUMMARY: EPA is denying a petition to delete phosphoric acid from the 
reporting requirements under section 313 of the Emergency Planning and 
Community Right-to-Know Act of 1986 (EPCRA) and section 6607 of the 
Pollution Prevention Act of 1990 (PPA). This action is based on EPA's 
conclusion that phosphoric acid does not meet the deletion criteria of 
EPCRA section 313(d)(3). Specifically, EPA is denying this petition 
because EPA's review of the petition and available information resulted 
in the conclusion that phosphoric acid meets the listing criterion in 
EPCRA section 313(d)(2)(C) in that the phosphates that result from the 
neutralization of phosphoric acid may cause algal blooms. Algal blooms 
result in deoxygenation of the water and other effects that may 
ultimately lead to a number of serious adverse effects on ecosystems, 
including fish kills and changes in the composition of animal and plant 
life.

FOR FURTHER INFORMATION CONTACT: Daniel R. Bushman, Petitions 
Coordinator, 202-260-3882, e-mail: [email protected], for 
specific information on this document, or for more information on EPCRA 
section 313, the Emergency Planning and Community Right-to-Know 
Hotline, Environmental Protection Agency, Mail Code 5101, 401 M St., 
SW., Washington, DC 20460, Toll free: 1-800-535-0202, in Virginia and 
Alaska: 703-412-9877 or Toll free TDD: 1-800-553-7672.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Statutory Authority

    This action is taken under sections 313(d) and (e)(1) of the 
Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 
U.S.C. 11023. EPCRA is also referred to as Title III of the Superfund 
Amendments and Reauthorization Act of 1986 (SARA) (Pub. L. 99-499).

B. Background

    Section 313 of EPCRA requires certain facilities that manufacture, 
process, or otherwise use listed toxic chemicals in amounts above 
reporting threshold levels, to report their environmental releases of 
such chemicals annually. Beginning with the 1991 reporting year, such 
facilities must also report pollution prevention and recycling data for 
such chemicals, pursuant to section 6607 of the Pollution Prevention 
Act (42 U.S.C. 13106). Section 313 established an initial list of toxic 
chemicals that was comprised of more than 300 chemicals and 20 chemical 
categories. Phosphoric acid (PA) was included in the initial list of 
chemicals and 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)(1), any person may petition EPA 
to add chemicals to or delete chemicals from the list. EPA has added 
and deleted chemicals from the original statutory list. Pursuant to 
EPCRA section 313(e)(1), EPA must respond to petitions within 180 days 
either by initiating a rulemaking or by publishing an explanation of 
why the petition has been denied.
    EPCRA section 313(d)(2) states that a chemical may be listed if any 
of the listing criteria are met. Therefore, in order to add a chemical, 
EPA must demonstrate that at least one criterion is met, but does not 
need to examine whether all other criteria are also met. Conversely, in 
order to remove a chemical from the list, EPA must demonstrate that 
none of the criteria are met.
    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 a statement of policy and guidance 
regarding the recommended content of petitions to delete individual 
members of the section 313 metal compound categories. EPA has issued a 
statement clarifying its interpretation of the section 313(d)(2) and 
(3) criteria for adding and deleting chemicals from the section 313 
toxic chemical list (59 FR 61432; November 30, 1994) (FRL-4922-2).

II. Description of Petition

    On November 9, 1990, The Fertilizer Institute (TFI) petitioned the 
Agency to delist PA from the list of toxic chemicals subject to 
reporting under section 313 of EPCRA (Ref. 1). The TFI petition was 
very similar to a petition that Ecolab, Inc. submitted on December 14, 
1989, requesting EPA to delete PA from the EPCRA section 313 list of 
toxic chemicals (Ref. 2). During the final days of the review on this 
first petition, Ecolab, Inc. withdrew the petition. Nevertheless, EPA 
issued a notice in the Federal Register of June 25, 1990 (55 FR 25876), 
describing its technical review and evaluation of the petition. As part 
of the notice, the Agency stated that it would have denied the petition 
and noted that its concern for PA is due to PA's contribution to 
eutrophication, which results from phosphate loading in the 
environment. In that notice, the Agency also requested public comment 
on the creation of an EPCRA section 313 phosphates category that would 
include PA. Although EPA is not proposing to add a phosphates category 
at this time, it intends to propose such a category in a separate 
rulemaking at a later date. Because it believes that the comments 
received in response to the earlier notice and EPA's responses to those 
comments provide information relevant to the listing of PA under EPCRA 
section 313, it addresses those comments in Unit V. of this document.
    The petition submitted by TFI was reviewed to identify the issues 
that differed from the Ecolab petition. The assertions that TFI 
addressed in its subsequent petition were: (1) PA does not meet the 
statutory criteria of section 313 of EPCRA; (2) the vast majority of PA 
releases are by sources not covered by the requirements of EPCRA 
section 313 at that time and therefore, the environmental effects 
attributed to phosphate loading caused by PA are not

[[Page 3567]]

effects for which the manufacturers subject to section 313 reporting 
should be held accountable; and (3) EPA in its exposure assessment used 
``flawed assumptions'' and ``inaccurate data'' in the course of the 
review.
    These issues are addressed in Units IV., V., and VI. of this 
document. EPA's technical assessment remains basically unchanged since 
the original review of the Ecolab petition; the previous review is 
summarized in the following unit.

III. EPA's Technical Review of Phosphoric Acid

A. Toxicity Evaluation

    1. Human health. In the physiological pH range of 6 to 9, PA 
dissociates to phosphate ions which predominately exist as a 
combination of H2PO4- and 
HPO4-2. Phosphate is readily absorbed from the 
gastrointestinal tract. Phosphate levels in the blood of higher animals 
are regulated by the parathyroid gland and are strongly tied to calcium 
ion regulation in the body. No information was found in the available 
literature regarding the absorption of PA from the lungs or skin (Ref. 
3).
    EPA's hazard assessment resulted in the following conclusions:
    a. Acute effects. PA may cause irritation and corrosive effects as 
do many other acids. PA is weaker than the other strong mineral acids. 
The Poison Index states that ``[PA] causes irritation of eyes, skin, 
and the respiratory tract. When ingested it can produce nausea, 
vomiting, abdominal pain, bloody diarrhea, acidosis, shock and 
irritation or burns of the oropharyngeal mucosa, esophagus and 
stomach.'' As with other corrosive or caustic materials, the extent of 
damage is generally determined by the acidity of the solution and 
duration of contact. PA, however, is not expected to exist beyond 
facility site boundaries at a pH that will cause these effects (Ref. 
3).
    b. Chronic effects. PA has been shown to cause nephrocalcinosis in 
rats when administered at relatively high concentrations in the diet 
(Ref. 3). PA cannot be reasonably anticipated to cause heritable 
genetic effects in humans (Ref. 4). No information was found in the 
available literature with which to evaluate the potential of PA to 
cause carcinogenic effects. PA cannot be reasonably anticipated to 
cause developmental or reproductive toxicity in humans. No information 
was found in the available literature with which to evaluate the 
potential of PA to cause neurotoxic effects (Ref. 3).
    2. Environmental toxicity. PA, which is a source of phosphates, can 
reasonably be anticipated to cause significant adverse effects on the 
environment. PA, as well as other phosphates have the potential to 
cause increased algal growth leading to eutrophication in the aquatic 
environment (Ref. 5). Eutrophication may result when nutrients, 
especially phosphates, enter into an aquatic ecosystem in the presence 
of sunlight and nitrogen. The phosphate ion is a plant nutrient and it 
can be a major limiting factor for plant growth in freshwater 
environments. In excess, PA can cause extreme algal blooms. Toxic 
effects result from oxygen depletion as the algae die and decay. Toxic 
effects have also been related to the release of decay products or 
direct excretion of toxic substances from sources such as blue-green 
algae. In addition, phosphates in aquatic environments may encourage 
the growth of introduced plants to the detriment of native plants and 
thereby change plant distribution.
    Laboratory studies indicate that eutrophication may occur at 
phosphate concentrations as low as 50 parts per billion (ppb) in lakes. 
The resulting oxygen depletion and toxic decay products (e.g., hydrogen 
sulfide) kill many invertebrates and fish (Ref. 5).
    Although green algae are more sensitive to growth stimulation by 
phosphates in fresh water, blue-green algal blooms are also stimulated 
by phosphates and may cause greater damage. At least three species of 
blue-green algae are known to excrete toxins. Secretions by 
cyanobacteria of dialyzable metabolites have inhibited the growth of 
other species of algae and may result in algal monoculture. When algal 
blooms of these toxic species occur in a reservoir, lake, slough, or 
pond, the cells and toxins can become sufficiently concentrated to 
cause illness or death in invertebrates and vertebrates. Major losses 
have been reported for cattle, sheep, hogs, birds (domestic and wild) 
and fishes, minor losses for dogs, horses, small wild animals, 
amphibians, and invertebrates (Ref. 5).
    In addition to eutrophication effects, PA exhibits low toxicity to 
freshwater organisms where typical toxicity values are greater than 100 
milligrams per liter (mg/L) (Ref. 5). Due to the existing pH 
restrictions under the Clean Water Act (CWA), releases of PA to surface 
waters are not anticipated to lead to problematic pH excursions. Under 
the CWA, parameters such as pH may be subject to both technology-based 
and water quality-based limitations. The technology-based limitations 
are either derived from nationally applicable effluent guidelines or 
pretreatment standards (many of which limit pH to a range of 6.0 to 
9.0) or are based on: (1) The permit writer's ``Best Professional 
Judgement'' if there is no applicable guideline for a direct 
discharger, or (2) local pretreatment requirements. Water quality-based 
limitations generally would be established to ensure that applicable 
water quality standards are attained and maintained. Dischargers are 
typically subject to monitoring provisions under which permittees are 
to report discharges of controlled parameters.

B. Release and Exposure

    EPA does not believe that consideration of release or exposure 
information is necessary in determining whether to keep PA on the list 
of EPCRA section 313 toxic chemicals. In 1994, EPA clarified its policy 
on the use of exposure assessments in listing decisions under EPCRA 
section 313(d)(2) and (3) (November 30, 1994, 59 FR 61432). As part of 
this clarification, EPA stated that, under the criterion of section 
313(d)(2)(C), exposure considerations are not appropriate

    . . .for chemicals that are highly ecotoxic or induce well-
established adverse environmental effects. For chemicals which 
induce well-established serious adverse effects, e.g., 
chlorofluorocarbons, which cause stratospheric ozone depletion, EPA 
believes that an exposure assessment is unnecessary. EPA believes 
that these chemicals typically do not affect solely one or two 
species but rather cause changes across a whole ecosystem. EPA 
believes that these effects are sufficiently serious because of the 
scope of their impact and the well-documented evidence supporting 
the adverse effects. (November 30, 1994, 59 FR 61432).

    Eutrophication due to phosphate loading is a well-established 
serious adverse effect that induces a number of changes to ecosystems, 
including fish kills and changes in the composition of animal and plant 
life. Therefore, an exposure assessment is not necessary in order to 
determine that phosphates, including PA, meet the listing criterion of 
EPCRA section 313(d)(2)(C). During its review of Ecolab's earlier 
petition, however, EPA conducted an exposure assessment for PA. Thus, 
for informational purposes only, the Agency is setting forth the 
results of this exposure assessment below.
    PA will dissociate in water to hydrogen and phosphate ions (Refs. 6 
and 7). Further reactions by abiotic processes are not expected to 
reduce the amount of PA released to the environment (Ref. 7). PA can be 
expected to enter the phosphorus cycle and become available as a 
nutrient in both aquatic and terrestrial settings. In aquatic settings, 
algae are able to

[[Page 3568]]

bioconcentrate low levels of phosphorus. The phosphorus cycle tends to 
lose phosphorus to soil and bottom sediments. Phosphorus binds to soil 
so its movement through soil is very slow. Ultimately, phosphorus moves 
from land to the sea and is deposited in bottom sediments (Ref. 7).
    The exposure assessment conducted for EPA's original review of PA 
was based upon information from the 1987 TRI data base, which listed 
1,173 facilities that discharged some amount of PA (Ref. 7). From this 
EPA identified 150 facilities from which PA is released to the 
environment in significant quantities. Of these, 46 facilities reported 
releases to surface waters and 52 facilities reported releases to the 
atmosphere. The exposure assessment concentrated on releases to water 
to address environmental toxicity concerns. It is important to note 
that this assessment only analyzed PA releases, the phosphates that are 
released as a result of neutralization of PA at a facility are not 
currently reported to the TRI. Although the currently reported PA 
releases do indicate which facilities are releasing phosphates, they do 
not reflect the full magnitude of the actual phosphate loading from 
facility releases. Therefore, the exposure assessment did not provide a 
complete picture of the significance of phosphate loading as a result 
of releases of phosphoric acid and phosphates from facilities that 
report under EPCRA section 313.
    Aquatic exposure to PA was calculated by determining the stream 
flow at each facility. Surface water concentrations, under low flow 
conditions, from discharges during manufacture of PA ranged from 8.76 
to 72,123 ppb. Surface water concentrations from discharges during 
processing and use ranged, under low flow conditions, from 0.62 to 
337,262 ppb.
    Facilities that routinely discharge PA to surface waters must 
comply with the CWA requirements. Under EPCRA section 313, by 
neutralizing their releases, facilities are technically releasing 
phosphates rather than PA to water and thus can report a release of 
zero. Even with neutralization of the PA, for the 1995 reporting year, 
TRI facilities still reported over 20 million pounds of releases of PA 
to surface waters from the more than 2,200 Form R reports filed. As 
stated above, these facilities are releasing additional phosphates to 
surface waters from the neutralization of PA, which are not currently 
captured under EPCRA section 313, but are the basis for concern for 
facilities that release PA.

C. Summary of Technical Review

    PA is acutely toxic to human tissue with effects ranging from 
irritation to acidosis and burns. The extent of the damage is dependant 
on the acidity of the PA solution and duration of exposure. There, 
however, are no acute human health effects expected to result from 
exposure to PA at an acidity that can reasonably be anticipated to 
exist in the environment under normal release conditions. Therefore, PA 
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.''
    In terms of chronic health effects, the available data indicate 
that PA cannot reasonably be anticipated to cause cancer, heritable 
genetic effects, neurotoxicity, developmental or reproductive toxicity, 
or other chronic health effects with the exception of nephrocalcinosis 
when PA is administered at relatively high concentrations in the diet.
    PA can reasonably be anticipated to cause significant adverse 
effects on the environment. PA has been demonstrated to cause 
environmental toxicity by its contribution to phosphate loading in the 
environment, which can lead to eutrophication. Eutrophication takes 
place in oceans, rivers, lakes, and estuaries and results when 
nutrients, such as phosphates, enter into an aquatic ecosystem, well 
supplied with sunlight and nitrogen, and stimulate excessive algal 
growth. EPA believes that eutrophication due to phosphate loading is a 
well-established serious adverse effect that induces a number of 
changes to ecosystems including fish kills and changes in the 
composition of animal and plant life.

IV. Technical Issues Addressed by The Fertilizer Institute

    TFI's petition to delist PA focused, among other things, on 
environmental exposure to PA from EPCRA section 313 covered facilities. 
Specifically, TFI argued that industrial releases of PA have no 
significant link to eutrophication of the nation's surface waters. EPA 
believes that the adverse effects associated with phosphates, including 
phosphoric acid, are well-established effects that cause changes across 
a whole ecosystem. Further, as stated in Unit III.B. of this document, 
EPA believes that the effects induced by phosphates are of such 
sufficient seriousness that factoring exposure considerations into the 
listing decision is not warranted because of the scope of their impact 
and the well-documented evidence supporting the adverse effects. 
Although information on exposure is not being used in today's action to 
support the determination that phosphoric acid and phosphates meet the 
section 313(d)(2)(C) criteria, TFI's comments do pertain to information 
presented by EPA in the June 25, 1990 (55 FR 25876) Federal Register 
notice and, thus, will be addressed.
    TFI claims that the exposure assessment portion of the technical 
review of Ecolab's petition was flawed. TFI's main claims are: (1) 
EPA's exposure modeling of releases of PA to surface waters did not 
sufficiently account for the fate of much of the phosphate which TFI 
claims would be consumed by plant and/or animal life or would be bound 
and thus not contribute to the concentration; (2) the modeling 
incorrectly calculated phosphate concentration rather than phosphorus 
concentration; and (3) improper receiving streams were used in the 
models. EPA believes that there is not expected to be any significant 
abiotic removal of PA after discharge into streams. PA will dissociate 
to hydrogen and phosphate ions when released to water. In this state 
there are four possible removal mechanisms: volatilization, photolysis, 
hydrolysis, and adsorption to sludge and sediments. Phosphate is non-
volatile, therefore there will be no removal via this mechanism. 
Phosphate ions also will not undergo hydrolysis or photolysis. 
Inorganic phosphate will not adsorb to stream sediments. The only way 
for a phosphate ion to be able to sorb is for it first to be 
transformed by other processes. These transformations, however, do not 
limit the availability of phosphate ions to algae for several reasons. 
Inorganic phosphate ion is most rapidly taken up by algae, but organic 
and complexed phosphate can also be readily utilized by most species, 
particularly those with alkaline phosphatase activity. The transformed 
phosphate complex that is sorbed to sediments can be released back to 
the epilimnion by biota in the sediments, and by anaerobic conditions 
in the water. Lastly, algae are able to effectively utilize phosphorus 
from the sediments. In conclusion, phosphate ions are capable of 
several chemical reactions in the environment, but very few of these 
reactions limit its biological availability (Refs. 3, 6, and 7).
    While TFI is correct that phosphate ions will be removed from 
surface water by organisms, this is precisely the basis for the concern 
over surface water releases. Uptake of and utilization of

[[Page 3569]]

phosphate by algae is the primary concern, since it can lead to 
eutrophication. While removal of phosphate ions by heterotrophic 
organisms could theoretically be significant, in reality it accounts 
for only a minor amount of removal because there is a far larger 
biomass of algae, and bacteria are poor competitors under carbon 
limiting conditions.
    TFI claims that the background levels of phosphorus are above the 
level of concern at each of the receiving streams examined by EPA. TFI 
did not provide data to support this blanket statement nor did TFI 
describe the type of phosphorous measurement it was examining.
    EPA agrees that the exposure evaluation report details the 
phosphate concentrations in analyzed receiving streams, whereas the 
concern concentration is expressed in terms of total phosphorous. 
Phosphate amounts are 3.07 times the phosphorous atom in the ion. 
Therefore, the concern concentration could be expressed as 153.5 ppb of 
phosphate (converted from concentration of concern of 50 ppb total 
phosphorous). Comparing this value to the exposure concentrations shows 
that 27 of the 46 surface water dischargers analyzed exceeded the 
concern concentration, rather than the 30 referred to in the exposure 
assessment. This does not alter the significance of the releases.
    TFI claims that EPA used incorrect flow data for one facility in 
its exposure modeling. A reexamination of the river flow data, which is 
contained in EPA's Industrial Facilities Discharge file, showed that 
the original flow values used by EPA were correct. This file, which 
uses U.S. Geological Survey data, is maintained by EPA's Office of 
Water.
    For a second facility, TFI claims that EPA identified and used an 
incorrect receiving stream. A reexamination of the information 
available to EPA at the time of the initial assessment confirmed the 
original estimated discharge site. Further inquiry substantiated the 
claim that surface water discharges go to the receiving waters 
identified by TFI. Nevertheless, the discrepancy in the flow data of 
the streams is of a magnitude that would not substantially affect the 
estimated concentrations of phosphate. Thus, the reexamination of the 
exposure data based on the comments by TFI has had little effect on the 
final concentration numbers generated in the review conducted in 
response to the Ecolab petition.

V. Public Comment

    In the notice issuing the results of EPA's technical review and 
evaluation of the Ecolab petition to delete PA (June 25, 1990, 55 FR 
25876), the Agency requested public comment on the creation of a 
phosphates category. In 1990, EPA received 12 comments on the creation 
of this category, 2 of which were in favor of the creation and 10 of 
which were opposed to it. Although EPA is not proposing to add a 
phosphates category at this time, because PA is a source of phosphates, 
EPA believes that the comments received and EPA's responses to those 
comments provide information relevant to the listing of PA under EPCRA 
section 313. Therefore, EPA is including the comments and responses to 
the issue of the addition of a phosphates category in this document. 
EPA intends to propose the creation of a phosphates category at a later 
date.
    The majority of the commenters contended that eutrophication is an 
indirect toxic effect and that a phosphates category should not be 
listed under section 313 because phosphates do not exhibit direct 
toxicity. They asserted that Congress intended that the section 313 
list of toxic chemicals include only chemicals that induce direct 
toxicity, and that Congress did not intend the list to include 
chemicals which are only indirectly toxic.
    EPA disagrees with these commenters. The EPCRA section 313(d)(2) 
listing criteria each state that EPA may list a chemical that it 
determines ``is known to cause or can reasonably be anticipated to 
cause'' the relevant adverse human health or environmental effect. It 
further provides that ``[a] determination under this paragraph shall be 
based on generally accepted scientific principles.'' Ultimately, the 
crux of the issue commenters raise lies in interpreting the phrase 
``cause or can reasonably be anticipated to cause,'' which Congress 
chose not to define. In arguing that EPA lacks the statutory authority 
to base its listing decisions on ``indirect toxicity,'' the commenters 
would have the Agency adopt an artificially narrow view of causation 
that would require a single-step path between exposure to the toxic 
chemical and the effect. Such a mechanistic approach confuses the mode 
or mechanism of the chemical's action (i.e., the chain of causation) 
with the fundamental question of whether, regardless of the number of 
intervening steps, there is a natural and continuous line, unbroken by 
any intervening causes, between exposure to the chemical and the toxic 
effect. By contrast, EPA believes that Congress granted the Agency 
broad discretion in making listing decisions and directed EPA to rely 
on generally accepted scientific principles in making determinations to 
implement this section of EPCRA.
    It is a generally accepted scientific principle that causality need 
not be linear, i.e., a one-step process. e.g., Proposed Guidelines for 
Ecological Risk Assessment, 61 FR 47552, September 9, 1996; Proposed 
Guidelines for Carcinogen Risk Assessment, 61 FR 17960, April 23, 1996. 
For purposes of EPCRA section 313, the distinction between direct and 
indirect effects is technically an artificial one. Whether the toxic 
effect is caused directly by a chemical through a one-step process, or 
indirectly by a degradation product of the chemical, a second chemical 
that is created through chemical reactions involving the first 
chemical, or some other mechanism, the toxic effect still occurs as a 
result of exposure to the chemical. It makes no difference to the 
affected organism whether the toxic agent was a result of chemical 
degradation or chemical reactions. Fundamentally, EPCRA section 313 is 
concerned with adverse effects on humans and the environment, not the 
chain of causation by which such effects occur. In fact, this type of 
``indirect'' toxicity is not unlike the effects of certain nonlinear 
carcinogens. Some carcinogens induce cancer through a two step 
mechanism in which the chemical causes an intervening pathological 
change, and this pathological change is the direct cause of the cancer, 
but this does not mean that the chemical is not known or reasonably 
anticipated to cause cancer. It is therefore reasonable for EPA to 
consider such effects in light of the broad statutory purpose to inform 
the public about releases to the environment. Were EPA to exclude 
indirect effects from consideration, it would dilute the purpose of the 
statute by precluding public access to information about chemicals that 
cause a wide range of adverse health and environmental effects.
    In prior petition decisions, EPA has considered other types of 
significant adverse effects on the environment that result from the 
releases of chemicals. For example, the addition of seven 
chlorofluorocarbons (CFCs) and halons (August 3, 1990, 55 FR 31594) and 
the denial of petitions on volatile organic compounds (VOCs), 
specifically, the ethylene and propylene petition (January 27, 1989, 54 
FR 4072) and the cyclohexane petition (March 15, 1989, 54 FR 10668) all 
concerned adverse effects on the environment.
    Some commenters do not believe that it is probable that 
eutrophication will

[[Page 3570]]

occur and believe that if it does occur it is not necessarily tied to 
phosphate releases.
    Although a number of nutrients in addition to phosphorus (as 
phosphates) are required for eutrophication to occur, in many cases 
phosphorus levels are the limiting factor. Phosphorus (as phosphate) is 
the most critical nutrient in controlling the growth of blue-green 
algal species. There is no indication in the literature that the 
connection between phosphates and algal blooms and fish kills is 
tenuous.
    A number of communities have experienced problems with 
eutrophication that is a result of phosphate loading. For example, in 
the Chowan River in North Carolina significant algal blooms have 
occurred in 1987, 1989, and 1990 (Ref. 8).
    Many commenters believe that a phosphates category should not be 
added because releases of phosphates from industrial facilities subject 
to section 313 reporting requirements are an insignificant part of 
total phosphates released to the environment.
    Nationwide, approximately two to three percent of all releases of 
phosphates to the environment are from industrial facilities that are 
required to report under EPCRA section 313. However, discharges from 
industrial facilities can contribute significantly to the levels of 
phosphates in a receiving stream. There are cases in which the major 
contributor of phosphates to a stream or river is an industrial 
facility that is covered by EPCRA section 313. Whether EPCRA section 
313 covered facilities are a significant source of a toxic chemical in 
the environment compared to other sources does not change the fact that 
a toxic chemical that meets the listing criteria of EPCRA section 313 
is being released to the environment and adding to the overall amount 
of the chemical in the environment.
    Many commenters believe that a phosphates category should not be 
added to the section 313 list because information on phosphate releases 
are captured by the National Pollutant Discharge Elimination System 
(NPDES).
    Not all industries required to report under EPCRA section 313 are 
required to have NPDES permits. Moreover, even if an individual 
discharger is regulated and has monitoring data related to its releases 
of PA, this information is not readily available to the public, as it 
would be if the discharger were required to comply with EPCRA section 
313. Rather, the public would have to resort to the more cumbersome 
Freedom of Information Act process to obtain the information. Thus, 
contrary to commenters suggestions, listing phosphates on TRI would 
provide useful, easily accessible information to the public.

VI. Explanation of Denial of Petition

    EPA believes that the types of deleterious changes that PA effects 
in aquatic ecosystems meet the listing criteria under EPCRA section 
313(d)(2). As stated in the Conference Report accompanying EPCRA, 99-
962, October 3, 1986, Joint Explanatory Statement of the Committee of 
Conference (p. 295):

    In determining what constitutes a significant adverse effect on 
the environment...the Administrator should consider the extent to 
which the toxic chemical causes or can reasonably be anticipated to 
cause any of the following adverse reactions, even if restricted to 
the immediate vicinity adjacent to the site:
    (1) Gradual or sudden changes in the composition of animal life 
or plant life, including fungal or microbial organisms in an area.
    (2) Abnormal number of deaths of organisms (e.g., fish kills).
    (3) Reduction of the reproductive success or the vigor of a 
species.
    (4) Reduction in agricultural productivity, whether crops or 
livestock.
    (5) Alterations in the behavior or distribution of a species.
    (6) Long lasting or irreversible contamination of components of 
the physical environment, especially in the case of ground water, 
and surface water and soil resources that have limited self-
cleansing capability.

    The effect of phosphates, including PA, on the environment is to 
induce a number of changes to the environment specified above, 
particularly fish kills and changes in the composition of animal and 
plant life in an area.
    EPA has serious concerns for the contribution of PA to phosphate 
loading in the environment and its potential eutrophic effects. EPA 
believes that the adverse effects associated with phosphates, including 
phosphoric acid, are well-established effects that cause changes across 
a whole ecosystem. Further, EPA believes that the effects induced by 
phosphates, including PA, are of such sufficient seriousness that 
additional exposure considerations are not warranted because of the 
scope of the impact of the effects and the well-documented evidence 
supporting the adverse effects. This determination is consistent with 
EPA's stated policy on the use of exposure assessments in EPCRA section 
313 listing and delisting decisions (59 FR 61432, November 30, 1994). 
Therefore, EPA is denying TFI's petition to delete PA from the EPCRA 
section 313 list of toxic chemicals because EPA has determined that PA 
meets the listing criteria of EPCRA section 313(d)(2)(C).
    The Agency believes that the most efficient manner to address its 
concerns for phosphates is by the formation of a phosphates category. 
However, at this time, EPA is not proposing to create a phosphates 
category under EPCRA section 313. EPA intends to propose the creation 
of such a category as a separate rulemaking at a later date.

VII. References

    1. TFI. Petition to Delete Phosphoric Acid from the List of Toxic 
Chemicals Subject to the Requirements of Section 313 of Title III of 
the Superfund Amendments and Reauthorization Act of 1996 (SARA). The 
Fertilizer Institute. (November 9, 1990).
    2. ECOLAB. Letter from John R. Keenan to EPA Administrator William 
K. Reilly, Subject: Phosphoric Acid (CAS 7664-38-2) Petition for 
Deletion from SARA 313. Ecolab Inc. (December 8, 1989).
    3. USEPA, OPPT. Memorandum from Janette Houk, Ph.D., Hazard 
Integrator, Chemical Review and Evaluation Branch, Health and 
Environmental Review Division. Re: Petition to Delist Phosphoric Acid. 
(February 14, 1990).
    4. USEPA, OPPT. Memorandum from Michael C. Cimino, Ph.D., 
Biologist, Toxic Effects Section, Toxic Effects Branch, Health and 
Environmental Review Division. Re: Mutagenicity Review of Delist 
Petition for Phosphoric Acid. (February 9, 1990).
    5. USEPA, OPPT. Memorandum from Ossi Meyn, D.Env., Environmental 
Effects Branch, Health and Environmental Review Division. Re: Petition 
to Delist Phosphoric Acid - Ecological Hazard. (February 27, 1990).
    6. USEPA, OPPT. DeVito, Stephen C., ``Phosphoric Acid Chemistry 
Report.'' (January 11, 1990).
    7. USEPA, OPPT. LaVeck, Gerald, ``Exposure Assessment for a 
Petition to Delist Phosphoric Acid.'' (1990).
    8. NCDNRCD. ``Chowan River Water Quality Management Plan 1990 
Update.'' North Carolina Department of Natural Resources and Community 
Development. (September 28, 1990).

VIII. Administrative Record

    The record supporting this decision is contained in docket control 
number OPPTS-400056. Comments on EPA's previous phosphoric acid 
petition response are contained in docket number OPPTS-400048. All 
documents, including the references listed in Unit VII. of this 
document and an index of the docket, are available to the public in the 
TSCA Nonconfidential Information Center (NCIC), also known as the 
Public Docket Office, from noon to 4 p.m., Monday through Friday, 
excluding legal

[[Page 3571]]

holidays. The TSCA NCIC is located at EPA Headquarters, Rm. NE-B607, 
401 M St., SW., Washington, DC 20460.

List of Subjects

    Environmental protection, Chemicals, Community right-to-know, 
Reporting and recordkeeping requirements, Toxic chemicals.

    Dated: January 12, 1998.
Lynn R. Goldman,

Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.
[FR Doc. 98-1644 Filed 1-22-98; 8:45 am]
BILLING CODE 6560-50-F