[Federal Register Volume 62, Number 99 (Thursday, May 22, 1997)]
[Proposed Rules]
[Pages 27992-27996]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-13483]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-5828-9]
List of Regulated Substances and Thresholds for Accidental
Release Prevention; Proposed Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing
modifications to the list of regulated substances and threshold
quantities the accidental release prevention regulations authorized by
section 112(r) of the Clean Air Act as amended. EPA is proposing to
vacate the listing and related threshold for hydrochloric acid
solutions with less than 37% concentrations of hydrogen chloride. The
current listing and threshold for all other regulated substances,
including hydrochloric acid solutions with 37% or greater
concentrations and the listing and threshold for anhydrous hydrogen
chloride, are unaffected by today's proposed amendment. Today's action
implements, in part, a settlement agreement between EPA and the General
Electric Company (GE) to resolve GE's petition for review of the
rulemaking listing regulated substances and establishing thresholds
under the accidental release prevention regulations.
DATES: Comments must be submitted on or before June 23, 1997, unless a
hearing
[[Page 27993]]
is requested by June 2, 1997. If a hearing is requested, written
comments must be received by July 7, 1997.
Public Hearing. Anyone requesting a public hearing must contact EPA
no later than June 2, 1997. If a hearing is held, it will take place on
June 6, 1997 at 9:30 a.m.
ADDRESSES: Comments should be mailed or submitted to: Environmental
Protection Agency, Air Docket (6102), Attn: Docket No. A-97-28,
Waterside Mall, 401 M St., SW, Washington, DC 20460. Comments must be
submitted in duplicate. Comments may be submitted on disk in
WordPerfect or Word formats. If a public hearing is held, written
testimony should be submitted in duplicate at the time of the hearing.
Public Hearing. If a public hearing is held, it will be held at
Waterside Mall, 401 M St., SW, Washington, DC 20460, in the Conference
Center in a room to be designated. Persons interested in attending the
hearing or wishing to present oral testimony should notify by telephone
Dorothy McManus (see For Further Information Contact).
Docket. The docket for this rulemaking is A-97-28. This proposed
rule would amend a final rule, the docket for which is A-91-74. The
docket may be inspected between 8 am and 5:30 pm, Monday through Friday
at EPA's Air Docket, Room M1500, Waterside Mall, 401 M St., SW,
Washington, DC 20460; telephone (202) 260-7548. A reasonable fee may be
charged for copying.
FOR FURTHER INFORMATION CONTACT: Prior to June 16, 1997, contact
Dorothy McManus, Program Analyst, Chemical Emergency Preparedness and
Prevention Office, Environmental Protection Agency, MC 5104, 401 M St.,
SW, Washington, DC 20460, (202) 260-8606. After June 16, 1997, contact
Vanessa Rodriguez, Chemical Engineer, Chemical Emergency Preparedness
and Prevention Office, Environmental Protection Agency, MC 5104, 401 M
St., SW, Washington, DC 20460, (202) 260-7913.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially affected by this action include the following
types of facilities if the facility has more than the 15,000 pound
threshold quantity of hydrochloric acid solutions with concentrations
of less than 37% hydrogen chloride.
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Example of regulated
Category entities
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Chemical manufacturers.................... Industrial inorganics.
Petrochemical............................. Plastics and resins.
Other manufacturers....................... Pulp and paper mills,
primary metal production,
fabricated metal products,
electronic and other
electric equipment,
transportation equipment,
industrial machinery and
equipment, food processors.
Wholesalers............................... Chemical distributors.
Federal sources........................... Defense and energy
installations.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists types of entities that the EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could be affected. To determine whether your
facility is affected by this action, you should carefully examine
today's notice. 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.
The following outline is provided to aid in reading this preamble
to the proposed rule:
Table of Contents
I. Introduction and Background
A. Statutory Authority
B. Regulatory History
C. List Rule Litigation
II. Discussion of Proposed Modifications
A. Rationale for Vacating 30% to 37% Solutions
B. Potential Future Actions Affecting Hydrochloric Acid
III. Discussion of the Proposed Rule
IV. Required Analyses
A. Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
I. Introduction and Background
A. Statutory Authority
This notice of proposed rulemaking (NPRM) is being issued under
sections 112(r) and 301 of the Clean Air Act (Act) as amended.
B. Regulatory History
The Clean Air Act (CAA or Act), section 112(r), contains
requirements related to prevention of accidental releases. The goal of
the accidental release provisions is to prevent accidental releases and
minimize the consequences of releases by focusing on those chemicals
and operations that pose the greatest risk. The CAA requires EPA to
promulgate an initial list of at least 100 substances (``regulated
substances'') that, in the event of an accidental release, are known to
cause or may be reasonably expected to cause death, injury, or serious
adverse effects to human health and the environment. The Act identifies
16 substances to be included in the initial list. Factors required to
be considered in listing substances are the severity of acute adverse
health effects associated with accidental releases of the substance,
the likelihood of accidental releases of the substance, and the
potential magnitude of human exposure to accidental releases of the
substance. The CAA also requires EPA to establish a threshold quantity
for each chemical at the time of listing. In developing these
thresholds, factors required to be considered include toxicity,
reactivity, volatility, dispersibility, combustibility, or flammability
of the substance and the amount of the substance which is known to
cause or can be reasonably anticipated to cause death, injury, or
serious adverse effects in case of a release. Stationary sources that
have more than a threshold quantity of a regulated substance are
subject to accident prevention regulations promulgated under CAA
section 112(r)(7), including the requirement to develop risk management
plans.
On January 31, 1994, EPA promulgated the list of regulated
substances and thresholds that identify stationary sources subject to
the accidental release prevention regulations (59 FR 4478) (the ``List
Rule''). EPA subsequently promulgated a rule requiring owners and
operators of these stationary sources to develop programs addressing
accidental releases and to make publicly available risk management
plans (``RMPs'') summarizing these programs. (61 FR 31668, June 20,
1996) (the ``RMP Rule''). On April 15, 1996, EPA proposed amendments to
the List Rule (61 FR 16598) and on June 20, 1996, stayed certain
provisions of the list and threshold regulations affected by the
proposed amendments (61 FR 31730). For further information on these
regulations, section 112(r), and related statutory provisions, see
these notices. These rules can be found in 40 CFR part 68, ``Chemical
Accident Prevention Provisions,'' and collectively are referred to as
the accidental release prevention regulations.
In the List Rule, EPA promulgated a list that includes 77 acutely
toxic substances, 63 flammable gases and volatile flammable liquids,
and Division 1.1 high explosive substances as listed by the United
States Department of Transportation (DOT) in 49 CFR 172.101. The final
rule established
[[Page 27994]]
threshold quantities for toxic substances ranging from 500 to 20,000
pounds, as well as thresholds for regulated flammable substances
(10,000 pounds) and explosive substances (5,000 pounds). The rule also
specified the requirements for any petitions to the Agency requesting
to add substances to, or delete substances from, the list.
In considering the statutory criteria for listing regulated
substances discussed above, EPA selected commercially produced acutely
toxic and volatile substances mostly from the list of extremely
hazardous substances (EHSs) under section 302 of the Emergency Planning
and Community Right-to-Know Act (EPCRA). EPA chose volatile substances
because they are more likely to become airborne and impact the public.
EPA also considered the accident history of substances. Because vapor
cloud explosions and blast waves from detonations of high explosives
have caused injuries to the public and damage to the environment, EPA
also included highly flammable gases and liquids and high explosives on
the list.
C. List Rule Litigation
The American Petroleum Institute (API), the Institute of Makers of
Explosives (IME), and the General Electric Company (GE) filed petitions
for judicial review of the List Rule (American Petroleum Institute v.
EPA, No. 94-1273 (D.C. Cir.) and consolidated cases). The API and IME
petitions for review focused primarily on issues related to the
regulation of flammable and explosive substances. EPA, API, and IME
signed settlement agreements in March 1996 that, when fully
implemented, will resolve these two cases. Consistent with these
settlements, EPA proposed amendments to the List Rule on April 15, 1996
(61 FR 16598). Furthermore, on June 20, 1996, EPA promulgated a stay of
certain provisions of the List Rule that were affected by the proposed
amendments (61 FR 31730). The effect of the stay is to provide sources
affected by the proposed amendments the same amount of time to meet the
requirements of the accident prevention regulations as other sources
not affected by the proposal in the event that EPA ultimately decides
not to promulgate the amendments as proposed. EPA anticipates final
action on the API/IME related amendments by December 20, 1997, which is
the date on which the stay is scheduled to expire.
The GE petition for review raised issues regarding EPA's listing
criteria under the List Rule, the listing of certain substances in the
List Rule, the setting of threshold quantities for certain substances
in particular and all regulated toxic substances generally, and the
petition process for adding and deleting regulated substances to the
list. GE identified as ``[t]he crux of the dispute * * * the legality
and propriety of including solutions of hydrochloric acid at 30% or
greater on the list of regulated substances,'' and challenged the
adequacy of the administrative record support for both the listing and
the 15,000 pound threshold for such solutions (see GE Status Report of
January 27, 1997, page 2, and the settlement agreement between GE and
EPA, page 1, both of which are in the docket for today's proposed
rule). While neither GE nor EPA conceded the correctness of the
opposing party's position on any of the issues raised by GE, both
parties recognized that there were substantial and material issues
regarding the support in the administrative record for the listing of
concentrations of hydrochloric acid up to 37% hydrogen chloride.
Recognizing that the public's interest would best be served by
settlement of all issues raised in this litigation, GE and EPA agreed
to a settlement on April 7, 1997. Under the terms of the settlement
agreement, EPA would propose to vacate provisions of the accidental
release prevention regulations that specifically address hydrochloric
acid solutions with less than 37% hydrogen chloride. On April 24, 1997,
EPA made available for public comment under CAA section 113(g) the
proposed settlement agreement with GE (62 FR 20007).
II. Discussion of Proposed Modifications
A. Rationale for Vacating 30% to 37% Solutions
In the above-described litigation, GE raised substantial concerns
regarding whether the administrative record for the List Rule supports
the listing of Hydrochloric Acid solutions at 30% hydrogen chloride
concentrations. Among other issues, GE has questioned whether the
listing criteria EPA used to list such solutions appropriately
characterize these solutions' potential magnitude of human exposure and
has challenged the methodology used to assign such solutions a 15,000
pound threshold. As discussed below, EPA believes that the concerns
discussed above warrant vacating the listing of hydrochloric acid
solutions of less than 37% (i.e., from 30% inclusive, up to but not
including 37%).
It is unlikely that the GE challenge to hydrochloric acid and all
other chemicals and thresholds established in the List Rule would be
resolved much sooner than 1998 if the parties were to brief and
litigate this case. As with any litigation, there is uncertainty about
the outcome of this case. In the event that the litigation proceeded
and the Court required EPA to conduct further rulemaking concerning
aspects of the List Rule, additional time would lapse before EPA could
complete such actions. In that situation, the RMP Rule's June 21, 1999,
compliance date potentially could be impacted not only for the
solutions proposed to be delisted today, but also for other regulated
substances that are not affected by today's proposal.
Today's action addresses the essential element of the dispute
between EPA and GE while eliminating the collateral uncertainty that
would exist about the regulatory status of the remaining chemicals if
the litigation proceeded. EPA has vigorously advocated responsible
accident prevention efforts by industry even before enactment of
section 112(r). The Agency is concerned that prolonging this dispute
may encourage owners and operators of sources who are solely concerned
about regulatory compliance to defer engaging in responsible accident
prevention activities. By implementing the settlement agreement with GE
and by implementing the settlement agreements reached in the other two
challenges to the List Rule, EPA will be able to retain on the list of
regulated substances nearly all of the chemicals originally listed and
eliminate uncertainty about their regulatory status.
EPA believes today's proposed rule is protective of the public
health in several respects. First, the proposed rule would allow the
listing of hydrochloric acid solutions to remain in effect for
solutions with concentrations of 37% or greater. Relative to the
solutions proposed to be vacated, the solutions that will remain listed
have a higher partial pressure of hydrogen chloride, which may indicate
a greater capacity to release hydrogen chloride and have hydrogen
chloride affect offsite communities. Second, the types of solutions
that remain regulated are prevalent in commerce. Third, as has been
explained by EPA in rulemakings and other interpretations, the presence
or absence of a chemical on the list of regulated substances in no way
affects the applicability of section 112(r)(1), the general duty
clause, to substances that are extremely hazardous in fact (see, for
example, 59 FR at 4481; and Risk Management Program Rule: Summary and
Response to Comments, section 32, Docket A-91-73, entry IX-C-01). The
general duty clause creates a duty for the owner or operator of a
stationary
[[Page 27995]]
source ``in the same manner and to the same extent as'' the general
duty provision under the Occupational Safety and Health Act ``to
identify hazards which may result from [accidental] releases using
appropriate hazard assessment techniques, to design and maintain a safe
facility, and to minimize the consequences of accidental releases which
do occur'' (CAA section 112(r)(1)). The general duty clause provides an
important level of protection of the public health for substances that
are extremely hazardous in fact regardless of whether they are listed.
Finally, EPA wishes to clarify that this proposed rule would not
affect in any way the listing of anhydrous hydrogen chloride. Anhydrous
hydrogen chloride would retain its 5000 pound threshold. Threshold
determination provisions for regulated toxic substances would apply to
anhydrous hydrogen chloride. Anhydrous mixtures of Hydrogen Chloride
would be subject to the mixture provisions for regulated toxic
substances. Aqueous mixtures of hydrochloric acid would be affected to
the extent that the minimum concentration cutoff would be revised.
Based on the reasons discussed above, EPA is proposing to vacate
the listing in part 68 of hydrochloric acid solutions at concentrations
of less than 37% (from 30% up to 37%) hydrogen chloride. Solutions of
37% or greater would not be affected by today's proposal and remain on
the list. In addition, EPA is proposing to vacate other provisions of
the accidental release prevention regulations insofar as they apply to
hydrochloric acid solutions at concentrations less than 37% hydrogen
chloride. For example, the reference to ``hydrochloric acid (conc 30%
or greater)'' in the toxic endpoint table for 40 CFR part 68 would be
revised to refer to concentrations of 37% or greater.
EPA recognizes that there will be uncertainty for owners and
operators of stationary sources as to the regulatory status of 30% to
37% solutions until EPA takes final action on today's proposal. Such
uncertainty is likely to impact compliance planning for processes
subject to the accidental release prevention regulations. Therefore,
EPA is proposing that if EPA does not issue a final rule vacating the
listing of hydrochloric acid solutions with less than 37%
concentrations and related part 68 provisions, EPA will extend the June
21, 1999 RMP Rule compliance deadline for such solutions by no less
than the amount of time that elapses from April 7, 1997, to 180 days
following the publication of a final action that declines to vacate the
listing of hydrochloric acid solutions with less than 37%
concentrations and related portions of part 68. For example, if such a
notice were published on September 4, 1997, which is 150 days after
April 7, 1997, then the compliance deadline applicable to 30% to 37%
solutions would be extended 330 days from June 21, 1999, to May 16,
2000.
B. Potential Future Actions Affecting Hydrochloric Acid
EPA notes that it is required by statute to review its list at
least every five years (section 112(r)(3)). Therefore, EPA will need to
address the appropriate concentration for the hydrochloric acid listing
no later than the time it performs this review. A future rulemaking
will provide an opportunity to more fully explain the basis for the
listing, including any issues peculiar to hydrochloric acid solutions.
For example, EPA anticipates it would address matters such as any new
accident history data involving solutions in the 30% to 37% range as
well as any substance-specific technical issues regarding such a
listing.
EPA is not at this time reopening the rulemaking record on the
listing of hydrochloric acid solutions within the range of 30% to 37%.
Any subsequent action to list solutions at concentrations within the
30% to 37% range will be taken only after a new notice of proposed
rulemaking and an opportunity for interested parties to comment. In the
event that EPA proceeds to relist, stationary sources would have no
less than three years to comply with the RMP Rule following
promulgation of a final rule listing hydrochloric acid solutions at
concentrations within this range.
III. Discussion of the Proposed Rule
EPA is proposing to amend several sections of part 68 of title 40
of the Code of Federal Regulations.
In Sec. 68.130, tables 1 and 2, the listing for Hydrochloric Acid
would be revised to read ``Hydrochloric Acid (conc 37% or greater).''
In addition, note ``d'' from Table 1 would be added to Table 2, from
which it was inadvertently omitted when the list rule was promulgated.
Note ``d'' would apply to only hydrochloric acid with concentrations
37% or greater when this action is finalized.
In part 68, Appendix A, the table of toxic endpoints, the entry for
hydrochloric acid would be revised to read ``Hydrochloric Acid (conc
37% or greater).''
IV. Required Analyses
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must judge whether the regulatory action is ``significant,'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal government or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 and, therefore, is not subject to OMB review.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to conduct a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions. This proposed rule would not have a significant impact
on a substantial number of small entities because it would, if adopted
as a final rule, reduce the range of hydrochloric acid solutions listed
under part 68 and thus reduce the number of stationary sources subject
to part 68. Therefore, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
C. Paperwork Reduction Act
This proposed rule does not include any information collection
requirements for OMB to review under the provisions of the Paperwork
Reduction Act.
[[Page 27996]]
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Today's proposed rule, if adopted, would reduce
the number of sources subject to part 68. Thus, today's rule is not
subject to the requirements of sections 202 and 205 of the UMRA. For
the same reason, EPA has determined that this rule contains no
regulatory requirements that might significantly or uniquely affect
small governments.
List of Subjects in 40 CFR Part 68
Environmental protection, Chemicals, Chemical accident prevention,
Extremely hazardous substances, Incorporation by reference,
Intergovernmental relations, Hazardous substances, Reporting and
recordkeeping requirements.
Dated: May 16, 1997.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I,
subchapter C, part 68 of the Code of Federal Regulations is proposed to
be amended as follows:
PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS
1. The authority citation for part 68 continues to read as follows:
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
Sec. 68.130 Tables 1 and 2 [Amended]
2. In Sec. 68.130 List of substances, Table 1 is proposed to be
amended by revising the listing in the column ``Chemical name'' from
``Hydrochloric acid (conc 30% or greater)'' to ``Hydrochloric acid
(conc 37% or greater).''
3. In Sec. 68.130 List of substances, Table 2 is proposed to be
amended by revising the listing in the column ``Chemical name'' from
``Hydrochloric acid (conc 30% or greater)'' to ``Hydrochloric acid
(conc 37% or greater),'' and by adding a note ``d'' between note ``c''
and ``e'' at the end of the table to read as follows:
d Toxicity of hydrogen chloride, potential to release hydrogen
chloride, and history of accidents.
Appendix A of Part 68 [Amended]
4. Appendix A of Part 68 is proposed to be amended by revising the
listing in the column ``Chemical name'' from ``Hydrochloric acid (conc
30% or greater)'' ``Hydrochloric acid (conc 37% or greater).''
[FR Doc. 97-13483 Filed 5-21-97; 8:45 am]
BILLING CODE 6560-50-P
