Barium Sulfate; Toxic Chemical Release Reporting; Community Right-To-Know

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[OPPTS-400063A; FRL-4767-5]

Barium Sulfate; Toxic Chemical Release Reporting; Community

Right-To-Know

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is deleting barium sulfate from the category ``barium

compounds'' on the list of toxic chemicals for which reporting is

required under section 313 of the Emergency Planning and Community

Right-to-Know Act of 1986 (EPCRA). This action is based on EPA's

conclusion that barium sulfate meets the deletion criteria of EPCRA

section 313(d)(3). By promulgating this rule, EPA is relieving

facilities of their obligation to report releases of barium sulfate

that occurred during the 1993 reporting year, and releases that will

occur in the future.

DATES: This rule is effective June 28, 1994.

FOR FURTHER INFORMATION CONTACT: Maria J. Doa, Petitions Coordinator,

202-260-9592, for specific information regarding this final rule. For

further information on EPCRA section 313, contact the Emergency

Planning and Community Right-to-Know Information Hotline, Environmental

Protection Agency, Mail Stop 5101, 401 M St., SW., Washington, DC

20460, Toll free: 800-535-0202, Toll free TDD: 800-553-7672.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Statutory Authority

This action is issued under section 313(d) and (e)(1) of the

Emergency Planning and Community Right-to-Know Act of 1986 (42 U.S.C.

11023). EPCRA is also referred to as Title III of the Superfund

Amendments and Reauthorization Act (SARA) of 1986.

B. Background

Section 313 of EPCRA requires certain facilities manufacturing,

processing, or otherwise using listed toxic chemicals to report their

environmental releases of such chemicals annually. Beginning with the

1991 reporting year, such facilities also must report pollution

prevention and recycling data for such chemicals, pursuant to section

6607 of the Pollution Prevention Act (42 U.S.C. 13106, ``PPA'').

Section 313 established an initial list of toxic chemicals that was

comprised of more than 300 chemicals and 20 chemical categories.

Section 313(d) authorizes EPA to add chemicals to or delete chemicals

from the list, and sets forth criteria for these actions. Under section

313(e), any person may petition EPA to add chemicals to or delete

chemicals from the list. EPA has added chemicals to and deleted

chemicals from the original statutory list.

EPA issued a statement of petition policy and guidance in the

Federal Register of February 4, 1987 (52 FR 3479), to provide guidance

regarding the recommended content and format for petitions. On May 23,

1991 (56 FR 23703), EPA issued guidance regarding the recommended

content of petitions to delete individual members of the section 313

metal compound categories.

II. Effective Date

This action becomes effective immediately. Thus, the last year in

which facilities had to report releases of barium sulfate was 1993,

covering releases that occurred in 1992. The effect of this deletion is

that, since barium sulfate will not be on the section 313 list when

facilities report in 1994 for releases that occured in 1993, these

reports and all subsequent reports need not include barium sulfate

release data. Facilities will therefore not have to collect release

information for any releases of barium sulfate that occur during the

1993 reporting year or for any releases that occur in the future.

Section 313(d)(4) provides that ``[a]ny revision [to the section

313 list] made on or after January 1 and before December 1 of any

calendar year shall take effect beginning with the next calendar year.

Any revision made on or after December 1 and before January 1 shall

take effect beginning with the calendar year following the next

calendar year.'' The Agency interprets this delayed effective date

provision to apply only to actions that add chemicals to the section

313 list. For deletions, the Agency may, in its discretion, make such

actions immediately effective. An immediate effective date is

authorized, in these circumstances, under 5 U.S.C. section 553(d)(1)

since a deletion from the section 313 list relieves a regulatory

restriction.

The Agency believes that the purpose behind the section 313(d)(4)

effective date provision is to allow facilities adequate planning time

to incorporate newly added chemicals to their TRI release data

collection processes. A facility would not need additional planning

time to not report releases of a given chemical. Thus, a reasonable

construction of section 313(d)(4), given the overall purpose and

structure of EPCRA -- to provide the public with information about

chemicals which meet the criteria for inclusion on the section 313 list

-- is to apply the delayed effective date requirement only to additions

to the list. Where the Agency has determined, as it has with barium

sulfate, that a chemical does not satisfy the criteria of section

313(d)(2)(A)-(C), no purpose is served by requiring facilities to

collect release data or file release reports for that chemical, or,

therefore, by leaving that chemical on the section 313 list for any

additional period of time. Nothing in the legislative history suggests

that 313(d)(4) was intended to apply to deletions as well as additions;

indeed, such a construction would be incongruous, since deleted

chemicals, by definition, do not satisfy the criteria for being on the

section 313 list and their deletion from that list should not be

delayed in the absence of any compelling reason to the contrary. This

construction of section 313(d)(4) is also consistent with previous

rules deleting chemicals from the section 313 list. Indeed, the Agency

has not given any of its rules deleting chemicals from the section 313

list the delayed effective dates specified in section 313(d)(4).

III. Description of Petition and Rationale for Delisting

A. Petition and Proposed Action

On September 24, 1991, EPA received a petition from the Chemical

Products Corporation (CPC) to delete barium sulfate (BaSO4) from

the list of toxic chemicals established under EPCRA section 313. A

second petition, submitted by the Dry Color Manufacturer's Association

(DCMA), to delete barium sulfate was received on November 6, 1991. Both

petitions are based on the contention that barium sulfate is not toxic

and does not meet any of the statutory criteria under EPCRA section

313(d)(2).

Following a review of the petitions, EPA granted the petitions and

issued a proposed rule in the Federal Register of June 11, 1993 (58 FR

32622), to delete barium sulfate from the category ``barium compounds''

on the list of toxic chemicals under EPCRA section 313. EPA's proposal

was based on its conclusion that BaSO4 meets the EPCRA section

313(d)(3) criteria for deletion from the list. With respect to

deletions, EPCRA section 313(d)(3) provides that ``[a] chemical may be

deleted if the Administrator determines there is not sufficient

evidence to establish any of the criteria described in paragraph

[(d)(2)(A)-(C)].'' Specifically, in the proposal EPA preliminarily

concluded that there is not sufficient evidence to establish that

BaSO4 causes adverse acute human health effects, chronic human

health effects, or environmental toxicity. EPA's rationale is detailed

in the proposed rule and is based on the Agency's review of the

petitions, as well as other relevant materials.

B. Rationale for Delisting

After reviewing comments received and other relevant information,

EPA has concluded that the assessment set out in the proposed rule

should be affirmed. Therefore, this final rule is based on EPA's

conclusion that BaSO4 is essentially non-toxic to humans and the

environment, and thus meets the EPCRA section 313(d)(3) criterion for

delisting (i.e., it does not meet any of the EPCRA section 313(d)(2)

listing criteria).

In reaching this conclusion, EPA considered the toxicity of the

barium ion because another potential source of barium sulfate toxicity

could be from the barium ion. EPA initially analyzed the availability

of barium ion. If the ion is not available, barium sulfate cannot cause

toxicity due to barium ion. EPA has concluded that barium ion from

barium sulfate will not be available to humans or the environment in

any way that would affect the Agency's decision under EPCRA section

313(d)(3). This is because barium ion from barium sulfate will occur at

significant levels only under anaerobic conditions in stagnant water

bodies that are cut-off from surface and ground waters. As discussed

below, such conditions do not give rise to human health or

environmental concerns under the EPCRA section 313(d)(2) criteria.

Because intact BaSO4 is acutely toxic only at levels that

greatly exceed releases and resultant exposures, BaSO4 cannot

reasonably be anticipated to cause ``. . .significant adverse acute

human health effects at concentration levels that are reasonably likely

to exist beyond facility site boundaries as a result of continuous, or

frequently recurring releases.'' EPA believes that barium ion

anaerobically released from barium sulfate into isolated stagnant water

bodies cannot reasonably be anticipated to result in adverse effects on

human health because people do not routinely use these waters as

sources of drinking water or food, or for recreation. Under other

conditions, barium ion could not be an issue because it is not

available. Thus, EPA has concluded that BaSO4 does not meet the

toxicity criterion for listing under EPCRA section 313(d)(2)(A).

EPA has concluded that BaSO4 does not meet the toxicity

criteria of EPCRA section 313(d)(2)(B) because BaSO4 cannot

reasonably be anticipated to cause cancer, developmental toxicity,

reproductive toxicity, neurotoxicity, gene mutations, or chronic

toxicity. Intact BaSO4 is not known to cause such effects, and for

the reasons discussed above barium ion will not be available to cause

chronic human toxicity.

EPA has concluded that BaSO4 does not meet the EPCRA section

313(d)(2)(C) toxicity criteria because of the lack of availability of

soluble barium from barium sulfate. Moreover, ecotoxicity data indicate

that barium ion generated in low sulfate, anaerobic environments cannot

reasonably be anticipated to result in adverse effects on the

environment of sufficient seriousness to warrant reporting under EPCRA

section 313.

C. Response to Comments

EPA received 34 comments on the proposed rule, all in support of

the deletion of barium sulfate. While all the comments received were in

support of the deletion, a few commenters requested clarification on

some points discussed in the proposed rule.

Two commenters wanted clarification of the statement regarding the

water solubility of barium sulfate and how it relates to the maximum

contaminant level (page 32624, second column, first full paragraph).

EPA agrees with the commenters that, at the water solubility of 2.4 mg/

L (2.4 ppm) at 25 deg.C, there are 1.4 ppm of barium ion and 1.0 ppm

of sulfate ion, and that the 1.4 ppm concentration of barium ion is

below the maximum contaminant level of 2 mg/L (2 ppm) established by

EPA under the Safe Drinking Water Act.

Many commenters requested clarification of EPA's characterization

of the regulatory status of barium sulfate under the Resource

Conservation and Recovery Act (RCRA) and the disposal of drilling

fluids. Specifically, one commenter stated that EPA did not clarify

that discharges of drilling fluids are in fact exempt from EPCRA as

well as RCRA. Another commenter stated that EPA should clarify the

statement in the proposed rule that there are no Federal regulations

prohibiting land disposal of drilling fluids to include the possibility

of state regulations. EPA agrees with the commenters that some

clarification is needed on these issues. 40 CFR 261.4(b)(5) exempts

from Federal regulation as hazardous waste drilling fluids and other

wastes from the exploration, development, or production of crude oil,

natural gas, or geothermal energy. Therefore, EPA regulations do not

prohibit the land disposal of drilling fluids. This activity, however,

may be regulated by state agencies. In addition, the commenter added

that underground injection controls pursuant to the Safe Drinking Water

Act and the National Pollutant Discharge Elimination System program

under the Clean Water Act also regulate drilling waste. EPA does not

agree with the comment that disposal of drilling fluids is totally

exempt from EPCRA reporting. Although the discharge of drilling fluids

is not specifically reportable under EPCRA section 313, the drilling

fluids may contain a reportable component and the discharge of that

chemical would require reporting if all applicable criteria are met.

One commenter wanted clarification of the statements ``Although the

TCLP may indicate that barium sulfate is not a hazardous waste as

defined by RCRA. ..'' and later, ``Furthermore, drilling fluids are

specifically exempted and are not considered hazardous wastes under

RCRA including those containing barium sulfate, even if the barium

sulfate itself meets the TCLP (40 CFR 261.4)'' (page 32624, column 1,

second and third full paragraphs). To clarify, barium sulfate is not a

listed hazardous waste as defined by RCRA. Furthermore, the exemption

under 40 CFR 261.4(b)(5) for barium sulfate in drilling fluids may

apply. EPA notes that barium is one of the contaminants tested for in

the Toxicity Characteristics (TC) of 40 CFR 261.24. However, due to its

limited water solubility, barium sulfate is not expected to produce an

extractable concentration of barium that exceeds the maximum allowable

concentration of soluble barium (100 mg/L) using the Toxicity

Characteristic Leaching Procedure (TCLP) as described in 40 CFR 261.24.

Thus, in these cases, land disposal of barium sulfate is not regulated

under RCRA subtitle C. However, EPA reiterates that the TCLP is not

conducted under anaerobic (reducing) conditions and that it is possible

for barium sulfate to liberate soluble barium under such conditions.

Thus, even though land disposal of barium sulfate is permissible under

RCRA if TC levels for barium are not exceeded, such disposal may lead

to the availability of soluble barium.

One commenter claimed that throughout the proposal EPA placed too

much emphasis on the release of barium ion from barium sulfate under

anaerobic conditions. In addition, the commenter added that it is

unlikely that disposal of drilling fluids as solid wastes would

``encourage perched water and anaerobic digestion of barium sulfate in

low sulfate environments.'' In the proposed rule EPA wanted to make

clear that although barium sulfate is poorly soluble (i.e., does not

significantly dissociate to barium and sulfate ions) in water, it is

still possible for this substance to liberate barium ion in water as a

result of anaerobic degradation. In the proposed rule EPA cited several

studies which clearly show that barium ion concentrations can become

elevated as a result of anaerobic degradation of barium sulfate. EPA

agrees with the commenter that it is probably unlikely that discharge

of barium sulfate-containing drilling fluids will encourage the

formation of stagnant waterbodies, where anaerobic degradation is

likely to occur. In its discussions on the availability of barium ion

from barium sulfate (units IV.D. and E. of the proposed rule) the

Agency did not specifically address discharges of drilling fluids

containing barium sulfate. Although EPA cited studies that showed

elevated barium ion concentrations in experiments which used drilling

fluids that contained barium sulfate, the main purpose of these

discussions is to illustrate that under certain environmental

conditions barium ion can become available from barium sulfate,

regardless of the source of the barium sulfate.

One commenter stated in the proposal that EPA does not clearly make

the distinction that barium is not a heavy metal (page 32626, column 3,

first full paragraph). EPA agrees that barium is not a heavy metal, and

it is not EPA's intent to imply that barium is or can be viewed as a

heavy metal. EPA was describing how the solubility of barium sulfate

may be influenced by factors other than sulfate concentration. EPA used

references which describe how substances normally found in the

environment (e.g., fulvic and humic acids, bicarbonate, and hydroxyl

ions) or soil particle grain size can enhance the solubility of

otherwise poorly soluble metal salts, such as salts of heavy metals.

EPA maintains that the cited studies provide sufficient evidence that

the solubility of any metal salt may be significantly affected by a

variety of naturally occurring environmental conditions. The same

commenter provided additional information on the toxicity of barium

ion. EPA is considering this information but is not addressing it in

this final rule since it is not relevant to this delisting. In

accordance with the May 23, 1991 guidance, this delisting decision is

made on the basis of availability of barium ion and not on barium ion

toxicity. If the ion is not available, its inherent toxicity is

irrelevant because it cannot cause adverse effects. Today's action is

not intended, and should not be inferred to affect the status of

BaSO4 under any statute or program other than the Toxic Chemical

Release Inventory reporting under EPCRA section 313 and PPA section

6607.

IV. Rulemaking Record

The record supporting this final rule is contained in the docket

number OPPTS-400063A. All documents, including an index of the docket,

are available in the TSCA Document Receipt Office from noon to 4 p.m.,

Monday through Friday, excluding legal holidays. The TSCA Document

Receipt Office is located at EPA Headquarters, Rm. NE-B607, 401 M St.,

SW., Washington, DC 20460.

V. Regulatory Assessment Requirements

A. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to review by the Office of Management and Budget

(OMB) and the requirements of the Executive Order. Section 3(f) of the

Order defines a ``significant regulatory action'' as an action likely

to lead to a rule (1) Having an annual effect on the economy of $100

million or more, or adversely and materially affecting a sector of the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or communities

(also referred to as ``economically significant''); (2) creating

serious inconsistency or otherwise interfering with an action taken or

planned by another agency; (3) materially altering the budgetary

impacts of entitlements, grants, user fees, or loan programs; or (4)

raising novel legal or policy issues arising out of legal mandates, the

President's priorities, or the principles set forth in this Executive

Order.

Pursuant to the terms of this Executive Order, it has been

determined that this final rule is not ``significant'' and therefore

not subject to OMB review.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act of 1980, the Agency must

conduct a small business analysis to determine whether a substantial

number of small entities would be significantly affected by the final

rule. Because this final rule eliminates an existing requirement, it

would result in cost savings to facilities, including small entities.

C. Paperwork Reduction Act

This final rule does not have any information collection

requirements under the provisions of the Paperwork Reduction Act of

1980, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 372

Environmental protection, Chemicals, Community right-to-know,

Reporting and recordkeeping requirements, and Toxic chemicals.

Dated: June 16, 1994.

Lynn R. Goldman,

Assistant Administrator, Office of Prevention, Pesticides and Toxic

Substances.

Therefore, 40 CFR part 372 is amended to read as follows:

Part 372--[AMENDED]

1. The authority citation for part 372 continues to read as

follows:

Authority: 42 U.S.C. 11023 and 11048.

Sec. 372.65 [Amended]

2. In Sec. 372.65(c), by adding the following language to the

barium compounds listing ``(except for barium sulfate, (CAS No. 7727-

43-7).''

[FR Doc. 94-15578 Filed 6-27-94; 8:45 am]

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