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Analytical Methods
Administrative Determination:
EPA Clarifies that Ferric Ferrocyanide is one of the "Cyanides"
in the Clean Water Act's List of Toxic Pollutants
Fact Sheet (EPA-821-F-03-012)
EPA has responded to a U.S. District Court referral
and determined that ferric ferrocyanide is one of the "cyanides"
in the list of toxic pollutants under Section 307(a) of the Clean Water
Act. EPA's final administrative determination does not mean that FFC is
a newly added pollutant to the toxic pollutant list. The determination
is not a regulation nor does it change existing regulations under the
CWA or CERCLA. This determination clarifies the Agency's interpretation.
Background
In 1987, the Commonwealth of Massachusetts sued Blackstone Valley Electric
(now Narragansett Electric Corporation, or NEC) under Section 107 of the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA). The suit was brought to recover costs incurred during clean-up
of a waste site containing ferric ferrocyanide (FFC). The Commonwealth
relied on the list of CERCLA hazardous substances, which includes a list
of toxic pollutants established under the Clean Water Act. The category
"cyanides" is on that list. Massachusetts interpreted the category
"cyanides" to include FFC which is the contaminant at the NEC
site.
In 1995, the U.S. Court of Appeals ruled that it could not, as a matter
of law, determine whether FFC is a one of the "cyanides" and
ordered the District Court to refer the issue to EPA for an "appropriate
administrative determination" as to whether FFC falls in the toxic
pollutant category of "cyanides."
EPA's Preliminary Administrative Determination
On January 25, 2001, EPA announced and asked for comment on the Agency's
preliminary administrative determination that FFC is one of the "cyanides."
EPA's determination was based on a plain reading of the toxic pollutant
category "cyanides," historical records, materials relevant
to the Blackstone Valley case, approved analytical methods, scientific
articles, and case studies of FFC-contaminated sites. In 2002, EPA discovered
additional materials that might be relevant to the decision, and asked
for comments on the additional materials. The Agency also conducted a
peer review of the preliminary determination in April 2003.
EPA's Final Administrative Determination
EPA has evaluated the available information and has responded to all
comments, including those submitted by Peer Reviewers, litigants, and
stakeholders. EPA found no statements that FFC was specifically excluded
as one of the "cyanides" in the Toxic Pollutant List. EPA did
find evidence that FFC can release free cyanide under certain environmental
conditions, such as pH greater than 7 and exposure to sunlight. EPA also
found evidence that EPA historically has been aware of this potential
environmental threat and has interpreted "cyanides" to include
cyanide compounds. After considering this information, EPA determined
that FFC is one of the "cyanides" on the list of toxic pollutants
under Section 307(a) of the Clean Water Act and codified at 40 CFR 401.15,
302.4, and Table 302.4.
Beneficial Uses of FFC
A number of industrial, consumer, and medicinal uses have been developed
for FFC, including as a pigment in printing inks, paints, paper dye, cosmetics,
and as an anti-caking agent in road salt. More recently, the Federal Government
has announced FFC as a recommended treatment for radiation exposure and
metal poisoning. The beneficial use of compounds and their classification
as toxic pollutants are not contradictory. EPA recognizes that even compounds
with beneficial uses can have toxic effects under certain environmental
conditions.
How to Get Additional Information
For more information about this administrative determination, please
contact Marion Kelly at the U.S. Environmental Protection Agency, Office
of Water, Engineering and Analysis Division (4303T), 1200 Pennsylvania
Avenue, N.W., Washington, D.C. 20460. You can also reach Ms. Kelly at
(202) 566-1045, by fax (202) 566-1053, or by e-mail to kelly.marion@epa.gov.
You can also visit the Agency's website at: http://epa.gov/waterscience/methods/
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