[Federal Register Volume 64, Number 234 (Tuesday, December 7, 1999)]
[Proposed Rules]
[Pages 68311-68314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-31668]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[OPPTS-400056A; FRL-6397-3]
RIN 2070-AC00


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: On April 15, 1999, the United States District Court for the 
District of Columbia reversed EPA's denial of a petition that The 
Fertilizer Institute (TFI) submitted to the Agency to delete phosphoric 
acid from the Emergency Planning and Community-Right-to-Know (EPCRA) 
section 313 list of toxic chemicals. In response to the Court's 
actions, EPA is proposing to delist phosphoric acid from the reporting 
requirements under EPCRA section 313 and section 6607 of the Pollution 
Prevention Act of 1990 (PPA).

DATES: Written comments, identified by the docket control number OPPTS-
400056, must be received by EPA on or before February 7, 2000.

ADDRESSES: Comments may be submitted by mail, electronically, or in 
person. Please follow the detailed instructions for each method as 
provided in Unit I. of the SUPPLEMENTARY INFORMATION section of this 
document.

FOR FURTHER INFORMATION CONTACT: For technical information on this 
proposed rule contact: Daniel R. Bushman, Petitions Coordinator, 
Environmental Protection Agency, Mail Code 7408, 401 M St., SW., 
Washington, DC 20460; telephone number 202-260-3882, e-mail address: 
[email protected]. For general information on EPCRA section 313, 
contact 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. General Information

A. Does this Action Apply to Me?

    You may be affected by this action if you manufacture, process, or 
otherwise use phosphoric acid. Potentially affected categories and 
entities may include, but are not limited to:

 
------------------------------------------------------------------------
                                      Examples of Potentially Affected
             Category                             Entities
------------------------------------------------------------------------
Industry                            SIC major group codes 10 (except
                                     1011, 1081, and 1094), 12 (except
                                     1241), or 20 through 39; industry
                                     codes 4911 (limited to facilities
                                     that combust coal and/or oil for
                                     the purpose of generating power for
                                     distribution in commerce); 4931
                                     (limited to facilities that combust
                                     coal and/or oil for the purpose of
                                     generating power for distribution
                                     in commerce); or 4939 (limited to
                                     facilities that combust coal and/or
                                     oil for the purpose of generating
                                     power for distribution in
                                     commerce); or 4953 (limited to
                                     facilities regulated under the
                                     Resource Conservation and Recovery
                                     Act, subtitle C, 42 U.S.C. section
                                     6921 et seq.), or 5169, or 5171, or
                                     7389 (limited to facilities
                                     primarily engaged in solvent
                                     recovery services on a contract or
                                     fee basis
------------------------------------------------------------------------
Federal Government                  Federal facilities
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. Other types of entities not listed in the table could also be 
affected. To determine whether your facility would be affected by this 
action, you should carefully examine the applicability criteria in part 
372, subpart B of Title 40 of the Code of Federal Regulations (CFR). If 
you have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding ``FOR 
FURTHER INFORMATION CONTACT'' section.

B. How Can I Get Additional Information or Copies of this Document or 
Other Support Documents?

    1. Electronically. You may obtain electronic copies of this 
document from the EPA Internet Home Page at http://www.epa.gov/. On the 
Home Page select ``Laws and Regulations'' then look up the entry for 
this document under the ``Federal Register--Environmental Documents'' 
You can also go directly to the ``Federal Register'' listings at http:/
/www.epa.gov/homepage/fedrgstr/.
    2. In person. The Agency has established an official record for 
this action under docket control number OPPTS-400056. The official 
record consists of the documents specifically referenced in this 
action, any public comments received during an applicable comment 
period, and other information related to this action, including any 
information claimed as confidential business information (CBI). This 
official record includes the documents that are physically located in 
the docket, as well as the documents that are referenced in those 
documents. The official record also includes documents associated with 
EPA's original denial of TFI's petition to delete phosphoric acid from 
the EPCRA section 313 list of toxic chemicals (63 FR 3566, January 23, 
1998), and EPA's request for comments on the creation of a phosphates 
category (55 FR 25876, June 25, 1990). The public version of the 
official record does not include any information claimed as CBI. The 
public version of the official record, which includes printed, paper 
versions of any electronic comments submitted during an applicable 
comment period, is available for inspection in the TSCA Nonconfidential 
Information Center, North East Mall Rm. B-607, Waterside Mall, 401 M 
St., SW., Washington, DC. The Center is open from noon to 4 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
of the Center is (202) 260-7099.

C. How and to Whom Do I Submit Comments?

    You may submit comments through the mail, in person, or 
electronically. Be sure to identify the appropriate docket control 
number (i.e., ``OPPTS-400056'') in your correspondence.
    1. By mail. Submit written comments to: Document Control Office 
(7407), Office of Pollution Prevention and Toxics (OPPT), Environmental 
Protection Agency, 401 M St., SW., Washington, DC 20460.

[[Page 68312]]

    2. In person or by courier. Deliver your comments to: OPPT Document 
Control Office (DCO) in the East Tower Rm. G-099, Waterside Mall, 401 M 
St., SW., Washington, DC. The DCO is open from 8 a.m. to 4 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
DCO is: 202-260-7093.
    3. Electronically. Submit your comments electronically by E-mail 
to: ``[email protected].'' Please note that you should not 
submit any information electronically that you consider to be CBI. 
Electronic comments must be submitted as an ASCII file avoiding the use 
of special characters and any form of encryption. Comments and data 
will also be accepted on standard computer disks in WordPerfect 6.1/8.0 
or ASCII file format. All comments and data in electronic form must be 
identified by the docket control number OPPTS-400056. Electronic 
comments on this proposal may also be filed online at many Federal 
Depository Libraries.

D. How Should I Handle CBI Information That I Want to Submit to the 
Agency?

    You may claim information that you submit in response to this 
document as CBI by marking any part or all of that information as CBI. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2. A copy of the comment that does 
not contain CBI must be submitted for inclusion in the public record. 
Information not marked confidential will be included in the public 
docket by EPA without prior notice. If you have any questions about CBI 
or the procedures for claiming CBI, please consult with the technical 
person identified in the ``FOR FURTHER INFORMATION CONTACT'' section.

II. Introduction

A. What is the Statutory Authority for this Proposed Action?

    EPA is proposing this action under EPCRA section 313(d)(3) and 
(e)(1)(A). 42 U.S.C. 11023.

B. What is the General Background for this Proposed Action?

    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 and 
other waste management 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 PPA, 42 U.S.C. 13106. EPCRA section 313 established an initial 
list of toxic chemicals that was comprised of more than 300 chemicals 
and 20 chemical categories. Phosphoric acid was included on the initial 
list of chemicals and chemical categories.
    EPCRA section 313(d) authorizes EPA to add chemicals to or delete 
chemicals from the list and sets forth criteria for these actions. 
Under EPCRA 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.
    EPCRA section 313(d)(2) states that EPA may add a chemical to the 
list if any of the listing criteria are met. Therefore, to add a 
chemical, EPA must demonstrate that at least one criterion is met, but 
need not determine whether any other criterion is met. Conversely, to 
remove a chemical from the list, EPA must demonstrate that none of the 
criteria are met. The EPCRA section 313(d)(2) criteria are:

    (A) The chemical is known to cause or can 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.
    (B) The chemical is known to cause or can reasonably be 
anticipated to cause in humans--
    (i) cancer or teratogenic effects, or
    (ii) serious or irreversible--
    (I) reproductive dysfunctions,
    (II) neurological disorders,
    (III) heritable genetic mutations, or
    (IV) other chronic health effects.
    (C) The chemical is known to cause or can reasonably be 
anticipated to cause, because of
    (i) its toxicity,
    (ii) its toxicity and persistence in the environment, or
    (iii) its toxicity and tendency to bioaccumulate in the 
environment, a significant adverse effect on the environment of 
sufficient seriousness, in the judgment of the Administrator, to 
warrant reporting under this section.

    EPA refers to the section 313(d)(2)(A) criterion as the ``acute 
human health effects criterion''; the section 313(d)(2)(B) criterion as 
the ``chronic human health effects criterion''; and the section 
313(d)(2)(C) criterion as the ``environmental effects criterion.''
    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 of petitions to delete individual 
members of the section 313 metal compound categories. EPA has issued a 
statement clarifying its interpretations 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).

III. Description of Petition and Related Proceedings

A. What Petition was Filed and How did EPA Respond?

    On November 9, 1990, TFI filed a petition with EPA to delist 
phosphoric acid from the EPCRA section 313 list of toxic chemicals. 
Congress had included phosphoric acid on the list when it enacted EPCRA 
section 313 in 1986. In the petition, TFI argued that EPA should delete 
phosphoric acid because it did not meet any of the three listing 
criteria in EPCRA section 313(d)(2): The acute human health effects 
criterion, the chronic human health effects criterion, or the 
environmental effects criterion.
    On January 23, 1998, EPA denied TFI's petition, finding that 
phosphoric acid met the environmental effects listing criterion at 
EPCRA section 313(d)(2)(C), which provides that EPA may add or decline 
to delete a chemical if it ``is known to cause or reasonably can be 
anticipated to cause, because of its toxicity . . . a significant 
adverse effect on the environment of sufficient seriousness . . . to 
warrant reporting'' (63 FR 3566) (FRL-5762-2) (Ref. 1). EPA based the 
denial, among other things, upon phosphoric acid's potential to cause 
eutrophication when released into certain water bodies.

B. What Other Proceedings Relate to this Petition?

    On April 29, 1998, TFI challenged EPA's denial of its petition in 
the United States District Court for the District of Columbia. The 
Fertilizer Institute v. Browner, No. 98-1067 (D.D.C.) In its challenge, 
TFI argued that phosphoric acid did not meet the environmental effects 
listing criterion because it was not toxic. TFI did not dispute that 
releases of phosphoric acid can cause eutrophication. It argued, 
however, that the eutrophication did not result ``because of'' 
phosphoric acid's toxicity, but ``because of'' its nutrient value. TFI 
also argued that phosphoric acid was not toxic because its effects were 
indirect and that EPA's interpretation of EPCRA section 313(d)(2)(C) 
read the term ``toxicity'' out of the statute.
    EPA disagreed and argued, among other things, that: (1) Many 
chemicals that are nutrients are also toxic; (2) the number of steps 
between exposure and effect does not determine whether something is 
toxic; and (3) it was not

[[Page 68313]]

reading ``toxicity'' out of the statute because there were situations 
in which a chemical could cause a significant adverse effect upon the 
environment for reasons other than inherent toxicity.
    The Court ruled in TFI's favor, granting TFI's motion for summary 
judgment on the toxicity issue and reversing EPA's denial of TFI's 
petition to delete phosphoric acid from the EPCRA section 313 toxic 
chemical list (Ref. 2). Notwithstanding its ruling, the Court agreed 
that phosphoric acid ``can reasonably be anticipated to cause . . . a 
significant adverse effect on the environment'' and that a listing 
decision under EPCRA section 313 could be based upon toxic effects that 
manifest indirectly. The Court, however, found that the ``significant 
adverse effect'' that phosphoric acid causes is not ``because of its 
toxicity,'' but because of its nutrient value. The government did not 
appeal the Court's decision.
    EPA is issuing this proposed rule in response to the Court's 
decision. EPA, is proposing to amend 40 CFR 372.65 by deleting 
phosphoric acid.

IV. What was EPA's Technical Review of the Environmental Effects of 
Phosphoric Acid?

    As discussed in EPA's original denial of TFI's petition (63 FR 
3566), phosphoric acid, as a source of phosphates, causes 
eutrophication (Ref. 3). Eutrophication is the nutrient enrichment of 
waters resulting in stimulation of an array of undesirable symptomatic 
changes. Therefore, phosphoric acid can reasonably be anticipated to 
cause significant adverse effects on the environment.
    Phosphoric acid, as well as other phosphates have the potential to 
cause increased algal growth leading to eutrophication in the aquatic 
environment (Ref. 3). 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, phosphoric acid 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 (Refs. 3 and 4).

V. What is the Explanation of the Proposed Delisting of Phosphoric 
Acid?

    EPA has authority to delete a chemical from the EPCRA section 313 
list of toxic chemicals only if it fails to meet any of the EPCRA 
section 313(d)(2) criteria: The acute human health effects criterion 
(313(d)(2)(A)), the chronic human health effects criterion 
(313(d)(2)(B)), or the environmental effects criterion (313(d)(2)(C)). 
EPA's original denial of the petition to delist phosphoric acid was 
based on the finding that phosphoric acid met the EPCRA section 
313(d)(2)(C) criterion for listing. Although phosphoric acid can 
reasonably be anticipated to cause significant adverse effects on the 
environment, the United States District Court for the District of 
Columbia reversed EPA's denial of the petition based upon the Court's 
assessment that these effects are not caused by phosphoric acid's 
toxicity, but by its nutrient value. Thus, the court determined that 
phosphoric acid does not meet the EPCRA section 313(d)(2)(C) listing 
criterion. In response to the Court's decision, EPA is proposing to 
delete phosphoric acid from the EPCRA section 313 list of toxic 
chemicals.

VI. What Issues is EPA Requesting Comment On?

    EPA requests comment on its proposal to delete phosphoric acid from 
the EPCRA section 313 list of toxic chemicals. Specifically, EPA 
requests comment on whether phosphoric acid produces any toxic effects 
that meet the EPCRA section 313(d)(2)(A), (B), or (C) listing criteria. 
Such effects could include acute and chronic human health effects or 
environmental effects. Additional hazard information on phosphoric acid 
can be found in EPA's original petition denial and the record 
supporting that decision (63 FR 3566).

VII. What are the References Cited in this Proposed Rule?

    1. Phosphoric Acid; Toxic Chemical Release Reporting; Community 
Right-to-Know; Denial of Petition, 63 FR 3566, January 23, 1998.
    2. The Fertilizer Institute v. Browner, No. 98-1067, Slip op. 
(D.D.C. April 15, 1999).
    3. USEPA, OPPT. Memorandum from Ossi Meyn, Environmental Effects 
Branch, Health and Environmental Review Division. Re: Petition to 
Delist Phosphoric Acid - Ecological Hazard. (February 27, 1990).
    4. USEPA. South Florida Ecosystem Assessment. Monitoring for 
Adaptive Management: Implications for Ecosystem Restoration. (Interim 
Report). December 1996. EPA 904-R-96-008.

VIII. What are the Regulatory Assessment Requirements for this 
Proposed Action?

A. Executive Order 12866

    This action, which proposes to delete a chemical from the list of 
chemicals subject to reporting under EPCRA section 313 and PPA section 
6607, would eliminate an existing requirement to report and does not 
contain any new or modified requirements. As such, this action does not 
require review by the Office of Management and Budget (OMB) under 
Executive Order 12866, entitled Regulatory Planning and Review (58 FR 
51735, October 4, 1993), because OMB has determined that the complete 
elimination of an existing requirement is not a ``significant 
regulatory action'' subject to review by OMB under Executive Order 
12866.

B. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) 
(5 U.S.C. 601 et seq.), the Agency hereby certifies that this proposed 
rule will not have a significant impact on a substantial number of 
small entities. This determination is based on the fact that the 
complete elimination of the existing requirement will also eliminate 
the corresponding burden and costs associated with that requirement. 
This proposed action will not, therefore, result in any adverse 
economic impacts on the facilities subject to reporting under EPCRA 
section 313, regardless of the size of the facility.

C. Paperwork Reduction Act

    The deletion of this chemical from the EPCRA section 313 toxic 
chemical list would reduce the overall reporting and recordkeeping 
burden estimate provided for the Toxics Release Inventory (TRI) 
program, but this action does not require any review or approval by OMB 
under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. In 
conjunction with the final rule, EPA will determine the total TRI 
burden associated with the chemical being proposed for deletion, and 
will complete the required Information Collection Worksheet to adjust 
the total TRI burden estimate approved by OMB.
    The reporting and recordkeeping burdens associated with TRI are 
approved by OMB under OMB No. 2070-0093 (Form R, EPA ICR No. 1363) and 
under OMB No. 2070-0145 (Form A, EPA ICR No. 1704). The current public 
reporting burden for TRI is estimated to average 52.1 hours for a Form 
R submitter and 34.6 hours for a Form A submitter. These estimates

[[Page 68314]]

include the time needed for reviewing instructions, searching existing 
data sources, gathering and maintaining the data needed, and completing 
and reviewing the collection of information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless its displays a 
currently valid OMB control number. The OMB control number for this 
information collection appears above. In addition, the OMB control 
number for EPA's regulations, after initial display in the final rule, 
are displayed on the collection instruments and are also listed in 40 
CFR part 9. Send any comments you have about the provided burden 
estimates according to the instructions provided in Unit I.C.

D. Unfunded Mandates Reform Act and Executive Orders 13084 and 13132

    Since this action involves the proposed elimination of an existing 
requirement, it does not impose any enforceable duty, contain any 
unfunded mandate, or otherwise have any affect on small governments as 
described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-
4). For the same reason, it is not subject to the requirement for prior 
consultation with Indian tribal governments as specified in Executive 
Order 13084, entitled Consultation and Coordination with Indian Tribal 
Governments (63 FR 27655, May 19, 1998). Nor will this action have a 
substantial direct effect on States, on the relationship between the 
national government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132, entitled Federalism (64 FR 43255, August 10, 
1999).

E. Executive Order 12898

    Pursuant to Executive Order 12898, entitled Federal Actions to 
Address Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994), the Agency must consider 
environmental justice related issues with regard to the potential 
impacts of this action on environmental and health conditions in low-
income populations and minority populations. The Agency has determined 
that deleting this chemical from the EPCRA section 313 toxic chemical 
list, which would eliminate the availability of the TRI information on 
this chemical that is made available to communities through the TRI 
Community Right-to-Know Program, will not result in environmental 
justice related issues.

F. Executive Order 13045

    Pursuant to Executive Order 13045, entitled Protection of Children 
from Environmental Health Risks and Safety Risks (62 FR 19885, April 
23, 1997), if an action is economically significant under Executive 
Order 12866, the Agency must, to the extent permitted by law and 
consistent with the Agency's mission, identify and assess the 
environmental health risks and safety risks that may disproportionately 
affect children. Since this action is not economically significant 
under Executive Order 12866, this action is not subject to Executive 
Order 13045.

G. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA) (15 U.S.C. 272 note) directs EPA to use voluntary 
consensus standards in its regulatory activities unless doing so would 
be inconsistent with applicable law or impractical. Voluntary consensus 
standards are technical standards (e.g., materials specifications, test 
methods, sampling procedures, etc.) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards, nor did EPA 
consider the use of any voluntary consensus standards. In general, 
EPCRA does not prescribe technical standards to be used for threshold 
determinations or completion of EPCRA section 313 reports. EPCRA 
section 313(g)(2) states that ``In order to provide the information 
required under this section, the owner or operator of a facility may 
use readily available data (including monitoring data) collected 
pursuant to other provisions of law, or, where such data are not 
readily available, reasonable estimates of the amounts involved. 
Nothing in this section requires the monitoring or measurement of the 
quantities, concentration, or frequency of any toxic chemical released 
into the environment beyond that monitoring and measurement required 
under other provisions of law or regulation.''

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, 
Intergovernmental relations, Reporting and recordkeeping requirements, 
Superfund, Toxic chemicals.

    Dated: November 30, 1999.
Carol M. Browner,
Administrator.
    Therefore, it is proposed that 40 CFR part 372 be amended as 
follows:

PART 372--[AMENDED]

    1. The authority citation for part 372 would continue to read as 
follows:

    Authority: 42 U.S.C. 11013 and 11028.


Sec. 372.65  [Amended]

    2. Section 372.65 is amended by removing the entry for phosphoric 
acid under the table in paragraph (a) and removing the entire CAS 
number entry for 7664-38-2 under the table in paragraph (b).

[FR Doc. 99-31668 Filed 12-6-99; 8:45 am]
BILLING CODE 6560-50-F