Phosphoric Acid; Community Right-to-Know Toxic Chemical Release
Reporting
[Federal Register: December 7, 1999 (Volume 64, Number 234)]
[Proposed Rules]
[Page 68311-68314]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07de99-16]
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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:
bushman.daniel@epa.gov. 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
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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: ``oppt.ncic@epamail.epa.gov.'' 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]
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