[Federal Register Volume 60, Number 126 (Friday, June 30, 1995)]
[Rules and Regulations]
[Pages 34182-34187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16185]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 372
[OPPTS-400057A; FRL-4946-3]
Sulfuric Acid; Toxic Chemical Release Reporting; Community Right-
To-Know
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is modifying the listing for sulfuric acid on the list of
toxic chemicals subject to section 313 of the Emergency Planning and
Community Right-to-Know Act of 1986 (EPCRA) in response to a petition.
Specifically, EPA is deleting non-aerosol forms of sulfuric acid from
the list of toxic chemicals subject to section 313. This deletion of
non-aerosol forms of sulfuric acid is based on EPA's review of the
available data on the health and environmental effects of sulfuric
acid. EPA has concluded that these forms of sulfuric acid cannot
reasonably be anticipated to cause adverse effects on human health or
the environment under normal exposure scenarios. Therefore, these forms
of sulfuric acid meet the EPCRA section 313(d)(3) deletion criteria. By
promulgating this rule, EPA is relieving facilities of their obligation
to report releases of non-aerosol forms of sulfuric acid that occurred
during the 1994 reporting year, and releases that will occur in the
future.
DATES: This rule is effective June 30, 1995.
FOR FURTHER INFORMATION CONTACT: Maria J. Doa, Petitions Coordinator,
202-260-9592, e-mail: doa.maria@epamail.epa.gov, for specific
information on this final rule, 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 issued 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 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 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). When enacted,
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)(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.
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 published
a statement clarifying its interpretation of the section 313(d)(2) and
(d)(3) criteria for adding and deleting chemicals from the section 313
toxic chemical list (November 30, 1994, 59 FR 61439).
II. Description of Petition and Proposed Action
On December 24, 1990, EPA received a petition from the
Environmental Policy Center on behalf of American Cyanamid to qualify
the listing of sulfuric acid by requiring release reporting only for
sulfuric acid aerosols and deleting other forms of sulfuric acid from
the list of chemicals under section 313. The petitioner maintains that
non-aerosol forms of sulfuric acid do not meet the statutory criteria
for acute, chronic, or environmental effects under normal exposure
scenarios.
Following a review of the petition, EPA issued a proposed rule in
the Federal Register of July 26, 1991 (56 FR 34156), proposing to
delete non-aerosol forms of sulfuric acid from the list of toxic
chemicals under EPCRA section 313. EPA's proposal was based on its
conclusion that these forms of sulfuric acid meet the EPCRA section
313(d)(3) criteria for deletion from the list. EPCRA provides at
section 313(d)(3) 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 proposed rule, EPA concluded preliminarily that
there is not sufficient evidence to establish that non-aerosol forms of
sulfuric acid cause adverse acute human health effects, chronic human
health effects, or environmental toxicity. This preliminary conclusion,
which is detailed in the proposed rule, was based on the Agency's
review of the petition, as well as other relevant materials included in
the docket.
In the Federal Register of February 1, 1993 (58 FR 6609), EPA re-
opened the comment period for the proposal to modify the listing of
sulfuric acid and announced that a public hearing would be held to
address petitions to modify the listings for both sulfuric and
hydrochloric acids (a petition was received from BASF Corporation, E.I.
du Pont de Nemours and Company, Monsanto, and Vulcan Chemical Company
on September 11, 1991, to modify the listing of hydrochloric acid by
deleting non-aerosol forms). In this notice, EPA requested comment on a
number of issues raised by commenters in response to the proposed rule
to modify the listing for sulfuric acid that also apply to hydrochloric
acid. Specifically, these issues were: (1) The extent to which EPA
should rely on existing regulatory controls under other statutes to
support a determination that continuous or frequently recurring
releases of these acids are unlikely to cause adverse acute human
health effects or significant adverse environmental effects; (2) the
sufficiency of the evidence required to determine if the non-aerosol
forms of these acids meet the EPCRA section 313(d)(2)(A) and (C)
criteria; (3) whether EPA should consider accidental release data in
making a finding for environmental effects under EPCRA section
313(d)(2)(C); (4) the relevance of release reporting under other
statutory provisions to the issue of whether non-aerosol forms of these
acids meet the listing criteria; and (5) other reporting options.
The public meeting was held on March 3, 1993. At this meeting, EPA
discussed the specific issues described in the February 1, 1993 notice
and presented data on accidental and routine releases of sulfuric and
hydrochloric acids. Comments were
[[Page 34183]]
then presented by the public. Responses to the major issues raised by
the comments presented and/or submitted at the public meeting
concerning sulfuric acid are addressed in this rulemaking. Comments
specific to the petition to modify the listing for hydrochloric acid
will be addressed at the time a final regulation is promulgated.
III. Final Rule and Rationale for Delisting
A. Comments on the Proposed Modification to Delete Non-Aerosol Forms of
Sulfuric Acid
EPA received 42 comments on the original notice proposing the
deletion of non-aerosol forms of sulfuric acid from the EPCRA section
313 toxic chemical list, a majority of which supported the proposal.
Thirteen commenters opposed the proposal arguing that: (1) The
modification defeats the intent of EPCRA, and (2) the Agency had not
adequately proven that non-aerosol forms of sulfuric acid cannot
reasonably be anticipated to cause adverse human health or
environmental effects. An additional 26 comments were received in
response to the Federal Register notice (58 FR 6609) re-opening the
comment period. Of these additional commenters, four opposed the
deletion of non-aerosol forms of sulfuric acid. The major issues
addressed by the commenters for both the proposed rule and the re-
opening of the comment period are summarized below. A detailed response
to all of the comments submitted is available in the document ``Summary
of Response to Public Comments Submitted on the Proposal to Modify the
Sulfuric Acid Listing (56 FR 34156) and the Notice Re-opening the
Public Comment Period (58 FR 6609)'' which is contained in the docket
for this rulemaking (Ref. 1).
1. Accidental releases. The Environmental Defense Fund (EDF) and
the Consumer Policy Institute cite EPA's Accidental Release Information
Program (ARIP) as documenting significant adverse environmental effects
as a result of releases of non-aerosol forms of sulfuric acid. EDF adds
that approximately half of the sulfuric acid accidents reported in the
ARIP data base cite environmental damages. Furthermore, they contend
that EPA's Acute Hazardous Events (AHE) data base describes sulfuric
acid as the most frequently reported substance involved in chemical
accidents. EDF also adds that it is important to recognize that neither
the ARIP nor AHE data bases contain a complete record of accidental
chemical releases, therefore, the actual number is presumably higher.
EDF, the Minnesota Emergency Response Commission (MERC), the
National Environmental Law Center, the Department of Drainage and
Sanitation, County of Onondaga, NY, and the Consumer Policy Institute
also believe that EPA must consider the effects from both accidental
and routine releases when evaluating listing and delisting petitions.
EDF adds that Congress specifically excluded the consideration of
accidental releases from EPCRA section 313(d)(2)(A) by the phrase
``continuous, or frequently recurring releases''; however, since that
phrase is lacking from EPCRA section 313(d)(2)(C), EPA is required to
consider the significance of impacts from accidental, as well as
routine, releases. Ecolab further adds that EPA should consider factual
information on accidental releases and not base listing decisions on
the possibility of accidents.
EPA recognizes that an accidental spill of non-aerosol sulfuric
acid could potentially result in adverse effects on the environment.
However, even if an accidental spill were reported under EPCRA section
313, it may not be identifiable as a spill, since section 313 reporting
requires annual release numbers which aggregate routine and accidental
releases. Therefore, the Toxics Release Inventory (TRI) data are not
the most appropriate resource for identifying the specific effects from
accidental releases of a reported chemical. In addition, these data
would not be immediately available under EPCRA section 313 and,
therefore, would have little utility for emergency response personnel.
In the proposal to modify the listing for sulfuric acid, EPA discussed
the other more appropriate mechanisms through which spills of sulfuric
acid would be reported and data made immediately available (e.g., the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) section 103 and EPCRA section 304). Therefore, EPA does not
believe that this delisting will affect the availability of accidental
release data for non-aerosol forms of sulfuric acid.
Furthermore, EPA has reviewed the accidental release data specific
to sulfuric acid. EPA's review of available information on non-aerosol
releases of concentrated sulfuric acid, including the data contained in
ARIP and AHE, indicates that accidental releases of sulfuric acid to
surface waters are infrequent and isolated occurrences. In fact, in
only a few circumstances could evidence of adverse environmental
effects (such as fish kills) be found. As such, the Agency believes
that the limited number of accidental releases of non-aerosol forms of
sulfuric acid do not result in significant adverse effects of
sufficient seriousness to warrant continued listing under EPCRA section
313. A description of EPA's analysis is contained in the document
entitled ``Analysis of Accidental Release Data for Non-Aerosol Forms of
Sulfuric Acid'' that is available in the docket for this rulemaking
(Ref. 2).
The Bekaert Corporation, Chemical Manufacturers Association (CMA),
Air Products and Chemicals Inc., American Cyanamid Company, Agrico
Chemical Company, Armco Steel Company, Rhone Poulenc, Aluminum Company
of America, Battery Council International, and the Acrylonitrile Group
state that accidental releases of sulfuric acid are adequately covered
by other statutory mechanisms (e.g., EPCRA section 304, CERCLA section
103). They contend that these other mechanisms are more effective and
more appropriate for capturing accidental release information.
Accidental release information is reported immediately under these
statutes versus the delayed reporting (and even further delayed
availability of data) under TRI. BASF Corporation, E.I. du Pont de
Nemours, Monsanto Company, Vulcan Materials Company, Eli Lilly and
Company, and The Fertilizer Institute state that the statutory intent
of EPCRA section 313 is to cover annual reporting on releases of
certain chemicals that occur during normal business operations. The
commenters further assert that Congress made a clear distinction
between this purpose and the purpose of EPCRA section 304 reporting on
accidental releases.
EPA agrees that accidental releases are more appropriately captured
under EPCRA section 304 and CERCLA section 103 for purposes of
assisting emergency responders and identifying specific adverse effects
from a spill. While it may be true that Congress clearly defined the
different purposes of EPCRA section 304 and EPCRA section 313, it is
not accurate to state that EPCRA section 313 only covers releases from
routine business operations. Accidental releases are reported in
aggregate with releases from routine operations under EPCRA section
313.
2. Whether sulfuric acid non-aerosols meet the statutory criteria.
Six commenters (the New Jersey Environmental Federation, EDF, Coalition
Against Toxics, National Environmental Law Center, Northwest Illinois
Audubon Society, and the Alaska Health Project) state that EPA has not
sufficiently demonstrated that non-aerosol forms of sulfuric acid do
[[Page 34184]]
not meet the EPCRA section 313(d)(2) criteria.
As explained in Unit III.B. of this preamble, EPA has concluded,
based on the Agency's evaluation of sulfuric acid's toxicity and the
levels of sulfuric acid exposure to which humans and the environment
may be subject, that non-aerosol forms of sulfuric acid do not meet the
EPCRA section 313(d)(2) criteria.
The National Environmental Law Center, Onondaga, NY Department of
Drainage and Sewage, and EDF state that Publicly Owned Treatment Works
(POTWs) workers are endangered by the corrosion and toxicity caused by
the large amounts of sulfuric acid released to POTWs. Furthermore, they
contend that emergency response personnel are harmed by transportation
and plant accidents and that these risks may not be proportional to the
``routine'' releases as evaluated by the Agency in the proposed rule.
EPA agrees that the non-aerosol forms of sulfuric acid are acutely
toxic at a low pH. The Agency believes that for chemicals that are
acutely toxic, such as concentrated non-aerosol forms of sulfuric acid,
the statute precludes consideration of only accidental, non-routine
releases when making a determination of whether a chemical meets the
criteria of EPCRA section 313(d)(2)(A). Further, the Agency has found
that there is no evidence that non-aerosol sulfuric acid releases cause
adverse effects to human health under ordinary exposure scenarios.
Several commenters state that this delisting is indefensible from
an environmental perspective because sulfuric acid causes
acidification, which harms aquatic life and vegetation. The Kentucky
Resources Council and the National Environmental Law Center argue that
there is insufficient data to state with any certainty whether the
releases of non-aerosol forms of sulfuric acid will cause environmental
harm. The Environmental Health Coalition adds that sulfuric acid is
highly corrosive to wildlife, particularly aquatic life and that it
makes no sense to delist a chemical whose toxicity at the time of
release is not known and may be very high.
The toxic properties of non-aerosol forms of sulfuric acid are
dependent upon concentration and duration of exposure. EPA believes
that releases of non-aerosol forms of sulfuric acid in concentrations
that are corrosive will almost exclusively exist as a result of
accidental releases. Further, EPA believes that the occurrence of these
accidental releases that result in adverse environmental effects is
limited. As a result, EPA does not believe that non-aerosol forms of
sulfuric acid cause an adverse effect on the environment of sufficient
seriousness to warrant continued reporting under EPCRA section 313.
The Kentucky Resources Council and the National Environmental Law
Center contend that EPA did not provide any information concerning the
pH levels typically associated with sulfuric acid releases so that the
assertion that all releases of sulfuric acid of a pH less than 6 will
not result in environmental harm is unsubstantiated, since the Agency
recognizes that at certain low pH levels acute toxicity and other
environmental effects occur.
The commenters are correct in their claim that EPA did not provide
any pH levels associated with sulfuric acid releases in the proposed
rule. However, EPA did provide some pH estimates as a result of
modelling from data reported to the Emergency Response Notification
System (ERNS) at the March 3, 1993 public meeting. The complete results
of this modelling are contained in the document entitled ``Analysis of
Accidental Release Data for Non-Aerosol Forms of Sulfuric Acid'' that
is available in the docket for this rulemaking (Ref. 2). The model used
for estimating these pH levels did not take into account other factors
(e.g., buffering) that affect the pH once the release has occurred.
Therefore, it is difficult to assess the actual pH in the environment.
Furthermore, EPA did not make the assertion that releases of sulfuric
acid at a pH less than 6 would not result in environmental harm;
however, the Agency did assert in the proposed rule (56 FR 34157) that
releases of sulfuric acid solutions at or above pH 6 are not expected
to result in adverse environmental effects. As stated above, EPA
recognizes that at low pH non-aerosol releases may cause an adverse
effect on the environment. However, based on a review of accidental
release reports, EPA believes these incidents are limited and are not
of sufficient seriousness to warrant continued reporting under EPCRA
section 313.
EDF adds that there are numerous industries that are not regulated
under the Clean Water Act's (CWA) pre-treatment program, and thus may
not be subject to pH limitations. If facilities discharging directly to
surface waters are not regulated for pH, and/or facilities have serious
pH excursions, environmental damage can result.
Discharge permits issued under the CWA ordinarily restrict the pH
range of these and other discharges. However, EPA did not limit its
analyses to CWA restrictions. Although permit restrictions, by
themselves, are not an adequate grounds for dismissing possible impacts
of releases of non-aerosol forms of sulfuric acid, taken together with
other data on sulfuric acid, EPA has not uncovered any information
identifying these discharges as reasonably anticipated to cause
significant adverse environmental effects of sufficient seriousness to
warrant reporting.
BP Chemicals, E.I du Pont de Nemours, Air Products and Chemicals,
American Petroleum Institute (API), Adolph Coors Company, Pennzoil
Company, and CMA agree with the Agency's position that non-aerosol
forms of sulfuric acid cannot reasonably be anticipated to cause
adverse effects to human health or the environment under normal
exposure scenarios. The Battery Council International concurs with the
Agency's finding on non-aerosol forms of sulfuric acid and requests
that the Agency re-evaluate the data on aerosol forms of sulfuric acid
as well.
As stated in the proposed rule (56 FR 34158), the Agency has
determined that aerosol forms of sulfuric acid meet the EPCRA section
313(d)(2) criteria and cannot be delisted under EPCRA section
313(d)(3).
3. Effect on the Right-to-Know program. Six commenters (New Jersey
Environmental Federation, Northwest Illinois Audubon Society, EDF,
MERC, New Jersey Department of Environmental Protection and Energy
(NJDEPE), and the Kansas Department of Health and Environment (KDHE))
oppose the delisting of non-aerosol forms of sulfuric acid on the
grounds that it defeats the intent of the Right-to-Know program.
Kentucky Resources Council expresses concern for the full
implementation of the Community Right-to-Know provisions of EPCRA
section 313. This commenter adds that there are severe limitations in
the existing data bases concerning human health effects from exposure
to sulfuric acid. In addition, deletion of non-aerosol forms of
sulfuric acid will result in a significant gap in reporting, since
``routine'' permitted releases are not captured under CERCLA and the
1,000 pound reportable quantity will allow significant releases to go
unreported. The Environmental Health Coalition believes the delisting
of sulfuric acid limits and weakens the effectiveness of TRI as a
comprehensive data base of Right-to-Know information.
The National Environmental Law Center states that other sources of
data on sulfuric acid spills and releases are no substitute for section
313 reporting due to factors of accessibility,
[[Page 34185]]
compliance, and consistency. Also, the National Environmental Law
Center and the EDF are concerned about the loss of data provided under
the Pollution Prevention Act (PPA), which they contend would be of
particular concern for sulfuric acid because of the risks and amounts
associated with sulfuric acid use and wastes prior to treatment.
EPA agrees that by delisting non-aerosol forms of sulfuric acid,
information on the management of this form of the chemical may be more
difficult to obtain. However, EPA believes that adequate information on
non-aerosol forms of sulfuric acid will still be available through
other more appropriate sources. For example, sulfuric acid is a
hazardous substance under CERCLA and an extremely hazardous substance
under EPCRA, therefore releases of greater than 1,000 pounds must be
reported to the National Response Center (NRC) under CERCLA section 103
and to the State Emergency Response Commission (SERC) and the Local
Emergency Planning Committee (LEPC) under EPCRA section 304. Written
follow-up information on the spill, and on the potential health and
environmental effects, is also required to be submitted to State and
local authorities. In addition, data on the quantity and type of
storage, as well as the physical and health hazards, must be submitted
for sulfuric acid under sections 311 and 312 of EPCRA. These inventory
data are submitted to SERCs, LEPCs, and local fire departments for
chemical accident prevention purposes, to assist local emergency
response personnel, and to inform the public of chemicals in
communities. Furthermore, emergency planning information is collected
at the State and local level for sulfuric acid under section 302 of
EPCRA, if more than 1,000 pounds is on-site at a facility at any given
time. EPA believes that difficulty in obtaining information available
through these sources should be addressed within the context of the
appropriate statute and that EPCRA section 313 should not be used as a
surrogate for other environmental statutes.
EPA does not agree that the intent of EPCRA section 313 is being
violated by this modification. If a chemical (or form of a chemical)
does not meet the EPCRA section 313(d)(2) criteria, EPA believes that:
(1) It is appropriate to delete the chemical from the toxic chemical
list, and (2) this type of deletion does not violate the intent of the
statute. Furthermore, the statutory criteria clearly require that EPA
consider the potential health and environmental effects of a chemical
in determining whether it should be on the EPCRA section 313 toxic
chemical list. EPA believes that the PPA data elements supplement TRI
reporting for those chemicals that meet the statutory toxicity
criteria.
Armco Steel Corporation, American Cyanamid Company, Battery Council
International, Adolph Coors Company, CMA, and Air Products and
Chemicals state that even though non-aerosol forms of sulfuric acid
will not be reported under EPCRA section 313, they are still subject to
the rest of EPCRA and other more appropriate reporting requirements to
ensure that there is not a loss of significant release information.
Although it is not a factor in listing/delisting decisions, EPA
agrees that releases of non-aerosol forms of sulfuric acid will still
be reported under other regulatory mechanisms and the delisting of
these forms of sulfuric acid under EPCRA section 313 should not result
in a loss of significant release data. As stated above, the statutory
criteria clearly relate to health and environmental effects for
determining whether a chemical should be on the EPCRA section 313 toxic
chemical list.
4. Reliance on other regulatory mechanisms. EDF states that it is
inappropriate for EPA to rely solely on regulations developed under
other statutes to assure the public that currently reported EPCRA
releases will not result in adverse human health or environmental
effects. The commenter adds that the TRI data were meant to be a check
on other statutory programs, ensuring that unregulated and inadequately
monitored chemicals are at least reported on an annual basis. The
commenter cites EPA's acknowledgement of this fact in another delisting
decision where the Agency stated that ``permit restrictions, by
themselves, are not an adequate grounds for dismissing possible impacts
of [sodium hydroxide] releases'' (see 54 FR 51298). In addition, the
commenter contends that the shortcomings of the CWA were addressed in
the preamble to the proposal to delete non-aerosol forms of sulfuric
acid by stating that ``pH may be subject to both technology-based and
water quality-based limitations.'' The commenter adds that this generic
statement clouds the reality that some facilities discharging to sewers
may not be regulated for pH. Furthermore, the commenter contends there
are numerous industries that are not regulated under the CWA's pre-
treatment program. Due to the nature of reporting for neutralized acids
under EPCRA section 313 (only below pH 6) and the pH limits of the CWA,
it is clear that EPCRA is capturing the more acidic (toxic) discharges.
The commenter also believes that the Resource Conservation and
Recovery Act (RCRA) is inadequate for ensuring that there will be no
adverse environmental effects from land treatment and disposal of non-
aerosol forms of sulfuric acid.
While EPA does not rely solely on data from permits or other
regulations, the Agency does consider this information in concert with
other data. In the case of non-aerosol forms of sulfuric acid, EPA has
not uncovered any information to indicate that non-aerosol forms of
sulfuric acid can be reasonably anticipated to cause significant
adverse health effects or environmental effects of sufficient
seriousness to warrant reporting.
Armco Steel Company, Air Products and Chemicals, BASF Corporation,
E.I. du Pont de Nemours, Monsanto Company, Vulcan Materials Company,
Aluminum Company of America, Eli Lilly and Company, American Cyanamid
Company, Battery Council International, Rhone Poulenc Inc., Edison
Electric Institute, CMA, and the Acrylonitrile Group state that any
threat to the public that may exist from a release of non-aerosol forms
of sulfuric acid is being addressed by a number of existing
regulations. Ecolab, Air Products and Chemicals, BASF Corporation, E.I.
du Pont de Nemours, Monsanto Company, Vulcan Materials Company,
American Cyanamid Company, Edison Electric Institute, CMA,
Pharmaceuticals Manufacturers Association, and the Acrylonitrile Group
assert that non-compliance with other statutes must be addressed
through the enforcement provisions of those statutes and their enabling
regulations and that concern for compliance under other statutes should
not be used in EPCRA section 313 listing/delisting decisions. EPCRA
provides no additional enforcement authority to address non-compliance
issues.
EPA agrees with these commenters that non-compliance with other
statutes should be addressed through those regulations. However, the
Agency has also found that the TRI data are useful in identifying
facilities that may not be in compliance with a particular statute. For
chemicals that meet the statutory criteria this is an appropriate use
of the TRI data. Nonetheless, the Agency does not believe that issues
of noncompliance with other regulations should be considered in
listing/delisting determinations.
5. Effect on pollution prevention. Six commenters (the New Jersey
[[Page 34186]]
Environmental Federation, Coalition Against Toxics, Northwest Illinois
Audubon Society, EDF, MERC, and the Consumer Policy Institute) state
that by delisting non-aerosol forms of sulfuric acid, EPA is removing
the incentive for facilities to neutralize discharges to a pH of 6 or
above.
The National Environmental Law Center, MERC, and NJDEPE also
believe that the delisting of non-aerosol forms of sulfuric acid will
undermine pollution prevention efforts and is contrary to the intent of
the PPA.
EPA concedes that by deleting non-aerosol forms of sulfuric acid,
the incentive for facilities to neutralize their discharges may be
lessened. However, there are other requirements (e.g., CWA pre-
treatment program) that still require facilities to neutralize their
wastestreams prior to discharge. EPA does not agree that this delisting
action will undermine pollution prevention efforts. There are numerous
other incentives for facilities to reduce their releases of a specific
chemical, including financial incentives. In addition, facilities will
be able to focus their pollution prevention efforts and report their
progress on the form of sulfuric acid that poses the greatest hazard,
the aerosol forms.
6. Other listing options. Armco Steel Company, Air Products and
Chemicals, Eli Lilly and Company, Edison Electric Institute, and CMA
oppose the options mentioned by EPA in the February 1, 1993 notice (58
FR 6609) either because the Agency has no statutory authority to create
a category for pH releases or to promulgate peak release reporting
rules.
American Cyanamid Company, BASF Corporation, E.I. du Pont de
Nemours, Monsanto Company, Vulcan Materials Company, and the
Acrylonitrile Group state that the listing options presented in the
February 1, 1993 notice (58 FR 6609; see Unit II. of the preamble) go
beyond the scope of the proposed rule on delisting non-aerosol forms of
sulfuric acid and should be considered separately.
At this time, EPA is not considering the other listing options
discussed in the February 1, 1993 notice.
B. Rationale for Delisting and Conclusions
Sulfuric acid aerosols meet the toxicity criteria of section
313(d)(2). EPA's decision to delete non-aerosol forms of sulfuric acid
is based on the Agency's evaluation of sulfuric acid's toxicity and the
levels of sulfuric acid exposure to which humans and the environment
may be subject. The non-aerosol forms of sulfuric acid are acutely
toxic at low pH; however, there is no information to indicate that non-
aerosol forms of sulfuric acid present a health or environmental risk
under ordinary exposure scenarios. Therefore, the Agency does not
believe that non-aerosol sulfuric acid releases will cause adverse
effects to human health or the environment under ordinary exposure
scenarios. The substance's toxic properties are dependent upon
concentration and duration of exposure. Only under aberrant conditions
of exposure (e.g., spills onto the skin, deliberate ingestion) do
solutions of sulfuric acid pose a potentially serious health hazard.
EPA has concluded that non-aerosol forms of sulfuric acid do not
meet the statutory criteria of section 313(d)(2)(A) regarding acute
human health effects; specifically, that the ``chemical is known to
cause or can reasonably be anticipated to cause significant adverse
human health effects at concentration levels that are reasonably likely
to exist beyond facility boundaries as a result of continuous or
frequently recurring releases.'' EPA's review of the toxicity and
exposure information indicates that although sulfuric acid in
concentrated forms is acutely toxic, it is unlikely that persons will
be exposed to acutely toxic concentration levels beyond facility
boundaries as ``a result of continuous or frequently recurring
releases.''
Also, EPA has concluded that non-aerosol forms of sulfuric acid do
not meet the chronic toxicity listing criteria in section 313(d)(2)(B),
because the chemical in its non-aerosol forms is not known to cause nor
can reasonably be anticipated to cause chronic health effects. The
environmental listing criterion, 313(d)(2)(C), also is not met because
the non-aerosol forms of sulfuric acid are not known to cause nor can
be reasonably anticipated to cause a significant adverse effect on the
environment of sufficient seriousness to warrant release reporting.
Although not a factor in the delisting decision, other statutory
mechanisms exist by which information on spills of sulfuric acid will
be made available to the public. These mechanisms have been detailed in
Unit III.A. of this preamble. Deleting non-aerosol forms of sulfuric
acid from the section 313 list will not result in any significant
reduction in the information now available to the public concerning
spills of sulfuric acid. Since reporting of spills under section 313 is
only required to be submitted to EPA as part of an overall annual
release number, no direct and immediate notice to the public of such an
accidental release or spill of sulfuric acid is available through
section 313 reports or through the TRI data base, i.e., only annual
release figures are available.
Therefore, EPA is modifying the listing for sulfuric acid by
deleting non-aerosol forms of sulfuric acid. For the purposes of this
deletion, EPA considers the term aerosol to cover any generation of
airborne sulfuric acid (including mists, vapors, gas, or fog) and
without regard to particle size. This action to delete non-aerosol
forms of sulfuric acid from the section 313 list is not meant to
suggest that the Agency considers sulfuric acid to be a ``safe''
chemical. Rather, this action reflects the fact that non-aerosol forms
of the chemical do not meet the toxicity criteria set forth in EPCRA
section 313(d)(2).
Deleting non-aerosol forms has implications for the threshold
determination for reporting under section 313. For purposes of
threshold determination under 40 CFR 372.25, any generation of airborne
sulfuric acid (including mists, vapors, gas, or fog) without regard to
particle size, is considered manufacture of sulfuric acid aerosols. The
quantity of airborne sulfuric acid manufactured, not the amount
released, would be compared with the reporting thresholds in EPCRA
section 313(f). Generation of airborne sulfuric acid is expected to
occur from, but is not limited to: production or processing of sulfur
trioxide (SO3), due to the extremely rapid reaction of sulfur
trioxide with atmospheric water within the process or facility;
production or processing of solutions of sulfuric acid; and
volatilization or vaporization of sulfuric acid from manufacture or
processing.
IV. Precedents for Modified Listings
There are precedents for qualified chemical listings under EPCRA
section 313. The original list established by Congress contained a
number of qualified listings including: aluminum (fume or dust),
ammonium nitrate (solution), asbestos (friable), yellow or white
phosphorus, vanadium (fume or dust), and zinc (fume or dust). Also, EPA
recently qualified the aluminum oxide listing by exempting non-fibrous
forms of aluminum oxide from the reporting requirements so that only
fibrous aluminum oxide is subject to reporting (40 CFR part 372). EPA
found that there was no evidence that non-fibrous forms of aluminum
oxide cause adverse human health or environmental effects as specified
under section 313. The decision to retain fibrous forms of aluminum
oxide was based on evidence that exposure to fibrous forms of this
chemical can reasonably be anticipated to cause cancer in humans. In
addition, EPA recently added a category, water
[[Page 34187]]
dissociable nitrate compounds, to the EPCRA section 313 list (59 FR
61460) with a qualifier that limits reporting to aqueous solutions. The
Agency had originally proposed (59 FR 1825) to list nitrate ion;
however, many commenters argued that what the Agency actually proposed
was a category of nitrate compounds that dissociate in water. EPA
agreed with the commenters and used the qualified category in the final
listing. This category indicates that only water dissociable nitrate
compounds that are manufactured, processed, or otherwise used as an
aqueous solution at a facility are subject to reporting.
V. Effective Date
This action becomes effective June 30, 1995. Thus, the last year in
which facilities had to file a TRI report for non-aerosol forms of
sulfuric acid was 1994, covering releases and other activities that
occurred in 1993.
Section 313(d)(4) provides that ``[a]ny revision'' to the section
313 list of toxic chemicals shall take effect on a delayed basis. EPA
interprets this delayed effective date provision to apply only to
actions that add chemicals to the section 313 list. For deletions, EPA
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) because a deletion from the section 313 list
relieves a regulatory restriction.
EPA believes that where the Agency has determined, as it has with
these non-aerosol forms of sulfuric acid, that a chemical does not
satisfy any of the criteria of section 313(d)(2)(A)-(C), no purpose is
served by requiring facilities to collect data or file TRI reports for
that chemical, or, therefore, by leaving that chemical on the section
313 list for any additional period of time. This construction of
section 313(d)(4) is consistent with previous rules deleting chemicals
from the section 313 list. For further discussion of the rationale for
immediate effective dates for EPCRA section 313 delistings, see 59 FR
33205.
VI. Rulemaking Record
The record supporting this decision is contained in docket control
number OPPTS-400057A. All documents, including an index of the docket,
are available in the TSCA Nonconfidential Information Center (NCIC),
also known as, TSCA Public Docket Office from noon to 4 p.m., Monday
through Friday, excluding legal holidays. TSCA NCIC is located at EPA
Headquarters, Rm. NE-B607, 401 M St., SW., Washington, DC 20460.
VII. References
(1) USEPA/OPPT. Summary of Response to Public Comments Submitted on
the Proposal to Modify the Sulfuric Acid Listing (56 FR 34156) and the
Notice Re-opening the Public Comment Period (58 FR 6609). U.S.
Environmental Protection Agency, Washington, DC (1995).
(2) USEPA/OPPT. Analysis of Accidental Release Data for NonAerosol
Forms of Sulfuric Acid. U.S. Environmental Protection Agency,
Washington, DC (1995).
VIII. 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. 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.
EPA estimates that this final rule will result in 4,258 to 5,476
fewer reports being submitted for sulfuric acid. This will reduce
industry's reporting costs by $11.1 to $13.7 million per year, and
EPA's costs by $300,000 to $400,000 per year.
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 subject to 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, Toxic chemicals.
Dated: June 26, 1995.
Lynn R. Goldman,
Assistant Administrator, Office of Prevention, Pesticides and Toxic
Substances.
Therefore, 40 CFR part 372 is amended as follows:
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. Section 372.65(a) and (b) are amended by adding the
parenthetical to the entry for sulfuric acid to read ``Sulfuric acid
(acid aerosols including mists, vapors, gas, fog, and other airborne
forms of any particle size)'' under paragraph (a) and for CAS number
entry 7664-93-9 under paragraph (b).
[FR Doc. 95-16185 Filed 6-29-95; 8:45 am]
BILLING CODE 6560-50-F
