List of Regulated Substances and Thresholds for Accidental
Release Prevention
Related Material
[Federal Register: August 25, 1997 (Volume 62, Number 164)]
[Rules and Regulations]
[Page 45129-45132]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25au97-28]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-5881-8]
List of Regulated Substances and Thresholds for Accidental
Release Prevention
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking final
action to modify the list of regulated substances and threshold
quantities authorized by section 112(r) of the Clean Air Act as
amended. EPA is vacating 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 rulemaking. 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: This rule is effective August 25, 1997.
ADDRESSES: Docket: The docket for this rulemaking is A-97-28. This rule
amends a final rule, the docket for which is A-91-74. The docket may be
inspected between 8:00 a.m. and 5:30 p.m., 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: Sicy Jacob, Chemical Engineer,
Chemical Emergency Preparedness and Prevention Office, Environmental
Protection Agency, MC 5104, 401 M St., SW, Washington, DC 20460, (202)
260-7249.
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 rule:
Table of Contents
I. Introduction and Background
A. Statutory Authority
B. Regulatory History
C. List Rule Litigation
II. Discussion of the Final Rule and Public Comments
III. Judicial Review
IV. Required Analyses
A. Executive Order 12866
B. Regulatory Flexibility
C. Paperwork Reduction
D. Unfunded Mandates Reform Act
E. Submission to Congress and the General Accounting Office
I. Introduction and Background
A. Statutory Authority
This final rule 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), 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 CAA also
requires EPA to establish a threshold quantity for each chemical at the
time of listing. 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''). This list included hydrochloric acid solutions with
concentrations of 30% or greater. Such solutions were assigned a
threshold quantity of 15,000 pounds. EPA subsequently promulgated a
rule requiring owners and operators of stationary sources with listed
substances above their threshold quantities 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''). 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.
C. List Rule Litigation
The General Electric Company (GE) filed a petition for judicial
review of the List Rule 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. 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, on May 22, 1997
(62 FR 27992), EPA proposed to vacate the listing and related threshold
for hydrochloric acid solutions with less than 37% concentrations of
hydrogen chloride. EPA is today taking final action on this proposal.
II. Discussion of the Final Rule and Public Comments
Today's final rule adopts without modification the May 22, 1997 (62
FR 27992), proposal to vacate provisions of the accidental release
prevention regulations that specifically address hydrochloric acid
solutions with less than 37% hydrogen chloride. The basis
[[Page 45131]]
and purpose of this rulemaking is set out in the above referenced
proposal. As discussed in the proposal, this 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. As also discussed
in the proposal, the general duty clause of section 112(r)(1) and the
retention on the list of solutions with concentrations of 37% or
greater ensures that today's rule is protective of public health in
several respects.
EPA received 11 letters commenting on the proposed rule. All of the
comments were from industry and trade associations. All commenters
supported vacating the listing of hydrochloric acid in concentration
below 37%. Several of them specifically supported EPA's stated position
that this proposal is protective of public health in several respects
and that this action will eliminate uncertainty in the regulated
community regarding RMP compliance for hydrochloric acid solutions.
Several commenters brought up technical issues regarding the basis
for listing hydrochloric acid in aqueous solution. EPA stated in the
proposed rule that it was not reopening the rulemaking record on the
listing of hydrochloric acid within the range of 30% to 37%. Any
technical issues related to the listing of hydrochloric acid solutions
will be addressed if EPA undertakes future regulatory actions regarding
such solutions. In agreeing to the settlement with GE and in this
related rulemaking, EPA has not conceded or acknowledged any technical
deficiencies in its original listing of HCl solutions with less than
37% concentration.
One commenter said that solutions at 37%, as well as those below
37%, should be delisted. EPA considers this issue outside the scope of
the current rulemaking. The listing of solutions at 37% and above was
decided in the original List Rule and was not reopened by this
rulemaking; objections to the listing of 37% solutions should have been
made by seeking review of the original List Rule and are now untimely.
To the extent that the commenter wishes to reopen the technical merits
of listing solutions that are precisely 37% HCl, EPA would address that
issue along with other technical issues if EPA were to take further
action on hydrochloric acid solutions.
Two commenters referred to comments submitted on the original
proposal to list hydrochloric acid solution. EPA addressed comments on
the proposed List Rule when it promulgated the final rule (January 31,
1994).
Several commenters questioned the accident history of hydrochloric
acid solutions and stated that EPA's accident database does not support
listing hydrochloric acid solutions. To the extent to which it is
relevant, EPA will consider the up-to-date accident history if it takes
any further regulatory actions on the listing of hydrochloric acid
solutions.
One commenter stated that EPA overestimated the number of regulated
sources that would not have to comply with the List rule as a result of
this vacatur. EPA's estimate of 800 sources was based on preliminary,
conservative assumptions that EPA used to determine that a regulatory
impact analysis was not required and was not related to the basis for
the proposal. The number and type of sources that are affected by a
listing are irrelevant under sections 112(r)(3) and (4). The Agency
recognizes that this estimate may represent a conservative picture of
the effect of the rule on the regulated community.
One commenter stated his understanding that hydrochloric acid
solutions of 36.94% would not be covered by the RMP rule. EPA confirms
that all solutions that can be accurately measured at less than 37% are
excluded.
EPA also proposed on May 22, 1997, to extend the RMP rule
compliance deadline for hydrochloric acid solutions with concentrations
of 30% to 37% if EPA did not take final action to vacate the
hydrochloric acid listing as proposed. Because EPA is vacating the
listing of such solutions by the final action today, no action is
necessary on this alternative proposal. If EPA were to relist these
solutions in the future, then sources would have three years from the
new listing to comply with the RMP rule.
Finally, as stated in the proposal, EPA wishes to clarify that this
rule will not affect in any way the listing of anhydrous hydrogen
chloride. Anhydrous hydrogen chloride will 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 vacating 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 will not be affected by today's rule and remain on the list. In
addition, EPA is vacating 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 will be revised to refer
to concentrations of 37% or greater.
III. Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of the actions taken by this final rule is available only on the filing
of a petition for review in the U.S. Court of Appeals for the District
of Columbia Circuit within 60 days of today's publication of this
action. Under section 307(b)(2) of the CAA, the requirements that are
subject to today's notice may not be challenged later in civil or
criminal proceedings brought by EPA to enforce these requirements.
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;
[[Page 45132]]
(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 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
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. EPA has also
determined that this rule will not have a significant negative economic
impact on a substantial number of small entities. This final rule will
not have a significant negative impact on a substantial number of small
entities because it will reduce the range of hydrochloric acid
solutions listed under part 68 and thus reduce the number of stationary
sources subject to part 68.
C. Paperwork Reduction
This rule does not include any information collection requirements
for OMB to review under the provisions of the Paperwork Reduction Act.
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 rule will 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.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
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: August 19, 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 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 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 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 amended by revising the listing in the
column ``Chemical name'' from ``Hydrochloric acid (conc 30% or
greater)'' to ``Hydrochloric acid (conc 37% or greater).''
[FR Doc. 97-22511 Filed 8-22-97; 8:45 am]
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