Revocation of TSCA Section 4 Testing Requirements for Coke-Oven
Light Oil (Coal)
[Federal Register: December 8, 2006 (Volume 71, Number 236)]
[Rules and Regulations]
[Page 71058-71062]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08de06-11]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 799
[EPA-HQ-OPPT-2005-0033; FRL-8103-2]
RIN 2070-AD16
Revocation of TSCA Section 4 Testing Requirements for Coke-Oven
Light Oil (Coal)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is amending the test rule entitled Testing of Certain High
Production Volume Chemicals promulgated under section 4 of the Toxic
Substances Control Act (TSCA). This amendment removes coke-oven light
oil (coal) (CAS No. 65996-78-3) from the list of chemicals subject to
the test rule. EPA is basing its decision on information it received
after publication of the test rule. Also, upon the effective date of
the revocation of the TSCA section 4 testing requirements for coke-oven
light oil (coal), persons who export or intend to export coke-oven
light oil (coal) are no longer subject to the TSCA section 12(b) export
notification requirements to the extent that they were triggered by the
testing requirements being revoked by this action.
DATES: This direct final rule is effective on February 6, 2007 without
further notice, unless EPA receives adverse comment in writing, or a
request to present comments orally, by January 8, 2007.
ADDRESSES: Submit your comments, identified by docket identification
(ID) number EPA-HQ-OPPT-2005-0033, by one of the following methods:
Federal eRulemaking Portal: http://www.regulation.gov. Follow the
on-line instructions for submitting comments.
Mail: Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001.
Hand Delivery: OPPT Document Control Office (DCO), EPA East, Rm.
6428, 1201 Constitution Ave., NW., Washington, DC. Attention: Docket ID
Number EPA-HQ-OPPT-2005-0033. The DCO is open from 8:00 a.m. to 4:00
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the DCO is (202) 564-8930. Such deliveries are only accepted
during the DCO's normal hours of operation, and special arrangements
should be made for deliveries of boxed information.
Instructions: Direct your comments to docket ID number EPA-HQ-OPPT-
2005-0033. EPA's policy is that all comments received will be included
in the public docket without change and may be made available on-line
at http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The regulations.gov website is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket, visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/docket.htm.
Docket: All documents in the docket are listed in the
regulations.gov index. Although listed in the index, some information
is not publicly available, e.g., CBI or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, will be publicly available only in hard copy
form. Publicly available docket materials are available electronically
at http://www.regulations.gov, or, if only available in hard copy, at
the OPPT Docket, EPA Docket Center (EPA/DC). The EPA/DC suffered
structural damage due to flooding in June 2006. Although the EPA/DC is
continuing operations, there will be temporary changes to the EPA/DC
during the clean-up. The EPA/DC Public Reading Room, which was
temporarily closed due to flooding, has been relocated in the EPA
Headquarters Library, Infoterra Room (Room Number 3334) in EPA West,
located at 1301 Constitution Ave., NW., Washington,
[[Page 71059]]
DC. The EPA/DC Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone
number for the OPPT Docket is (202) 566-0280. EPA visitors are required
to show photographic identification and sign the EPA visitor log.
Visitors to the EPA/DC Public Reading Room will be provided with an
EPA/DC badge that must be visible at all times while in the EPA
Building and returned to the guard upon departure. In addition,
security personnel will escort visitors to and from the new EPA/DC
Public Reading Room location. Up-to-date information about the EPA/DC
is on the EPA website at http://www.epa.gov/epahome/dockets.htm.
FOR FURTHER INFORMATION CONTACT: For general information contact: Colby
Lintner, Regulatory Coordinator, Environmental Assistance Division
(7408M), Office of Pollution Prevention and Toxics, Environmental
Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-
0001; telephone number: (202) 554-1404; e-mail address:
TSCA-Hotline@epa.gov.
For technical information contact: Catherine Roman, Chemical
Control Division (CCD) (7405M), Office of Pollution Prevention and
Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460-0001; telephone number: (202) 564-4780; e-mail
address: roman.catherine@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this Action Apply to Me?
This action is directed to the public in general, and may be of
particular interest to those persons who manufacture (defined by
statute to include import) or process coke-oven light oil (coal). Also,
persons that export or intend to export coke-oven light oil (coal) may
have an interest in this action. Upon the effective date of the
revocation of the TSCA section 4 testing requirements for coke-oven
light oil (coal), persons who export or intend to export coke-oven
light oil (coal) are no longer subject to the TSCA section 12(b) export
notification requirements to the extent that they were triggered by the
testing requirements being revoked by this action. Because other
persons may also be interested, the Agency has not attempted to
describe all the specific persons that may be affected by this action.
If you have any questions regarding the applicability of this action to
a particular person, consult the technical person listed under FOR
FURTHER INFORMATION CONTACT.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Requesting an opportunity to present oral comments to the
Agency. When you submit a request for an opportunity to present oral
comments, this request must be in writing. If a written request is
received on or before January 8, 2007, EPA will hold a public meeting
on this direct final rule in Washington, DC. Submit this written
request to the Document Control Office (7407M), Office of Pollution
Prevention and Toxics (OPPT), Environmental Protection Agency, 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001. If a written request
is received, EPA will announce the scheduling of the public meeting in
a subsequent Federal Register document. If a public meeting is
announced, and if you are interested in attending or presenting oral
and/or written comments and data at the public meeting, you should
follow the instructions provided in the subsequent Federal Register
document announcing the public meeting.
3. Tips for preparing your comments. When submitting comments,
remember to:
i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information
and/or data that you used.
v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
viii. Make sure to submit your comments by the comment period
deadline identified.
II. Background
A. What Action is the Agency Taking?
Pursuant to TSCA section 4, EPA published a test rule on March 16,
2006 (Ref. 1) (HPV test rule) requiring that manufacturers (including
importers) and processors of 17 high production volume (HPV) chemicals
conduct acute toxicity, repeat dose toxicity, developmental and
reproductive toxicity, genetic toxicity (gene mutations and chromosomal
aberrations), ecotoxicity (in fish, Daphnia, and algae), and
environmental fate (including 5 tests for physical chemical properties
and biodegradation) testing. EPA found that each of the 17 chemicals
included in the final HPV test rule is produced in substantial
quantities (TSCA section 4(a)(1)(B)(i)) and that there is or may be
substantial human exposure (TSCA section 4(a)(1)(B)(i)(II)) to each of
them. Moreover, EPA determined that there are insufficient data to
reasonably determine or predict the effects on health or the
environment of the manufacture, distribution in commerce, processing,
use, or disposal of the chemicals, or any combination of these
activities (TSCA section 4(a)(1)(B)(ii)). EPA concluded that the
testing program described in the HPV test rule is necessary and
appropriate for developing such data (TSCA section 4(a)(1)(B)(iii)).
Data developed under the HPV test rule will provide critical, basic
information about the environmental fate and potential hazards of the
chemicals included in the HPV test rule which, when combined with
information about exposure and uses, will allow the Agency and others
to evaluate potential health and environmental risks at the screening
level and take appropriate risk management or other actions, as
necessary.
To support the TSCA section 4(a)(1)(B)(i)(II) substantial human
exposure finding for the 17 chemicals in the HPV test rule, EPA relied
upon worker exposure data available from the National Occupational
Exposure Survey
[[Page 71060]]
(NOES) (Ref. 2). EPA used a threshold of 1,000 workers to make such a
finding for each chemical included in the HPV test rule, consistent
with the policy discussed in the Federal Register notice entitled TSCA
Section 4(a)(1)(B) Final Statement of Policy; Criteria for Evaluating
Substantial Production, Substantial Release, and Substantial or
Significant Human Exposure (58 FR 28736, May 14, 1993). In the case of
coke-oven light oil (coal), the substantial human exposure finding was
supported by NOES data which indicated that 2,559 roofers were exposed
to this chemical (Ref. 3). Because 2,559 workers far exceeds EPA's
general threshold of 1,000 workers, EPA was confident there was support
for the substantial human exposure finding for coke-oven light oil
(coal) (Ref. 4).
Shortly after publication of the HPV test rule in the Federal
Register (Ref. 1), EPA was contacted by the American Coke and Coal
Chemicals Institute (ACCCI) on behalf of the Coke Oven Environmental
Task Force (COETF). ACCCI did not believe there was substantial worker
exposure to coke-oven light oil (coal) and, according to ACCCI, the
chemical should not have been included in the HPV test rule. ACCCI had
commented on the proposed HPV test rule, and had included a detailed
analysis supporting its contention that only 103 workers were
potentially exposed to coke-oven light oil (coal) in COETF member
facilities, the two processing facilities, and the transportation
companies that linked them. EPA did not reject ACCCI's argument
concerning the extent of worker exposure in the manufacturing
facilities, processing facilities, and transportation companies in its
Response to Comments document prepared for the HPV test rule (Ref. 4).
However, ACCCI's contention that there is no use of coke-oven light oil
(coal) in the industry sector providing roofing services and that there
also would have been no use of coke-oven light oil (coal) in that
industry sector during the 1980's (Ref. 5) was at odds with the NOES
data on roofer exposure. Therefore, EPA finalized its proposed finding
for substantial human (worker) exposure to coke-oven light oil (coal)
in the HPV test rule.
Since EPA was contacted by ACCCI after the publication of the HPV
test rule, new information has come to EPA's attention. EPA asked NIOSH
to investigate the underlying data obtained by NIOSH for NOES which led
to the conclusion that 2,559 roofers were potentially exposed to coke-
oven light oil (coal). NIOSH responded that during the data collection
years for NOES, 1981 to 1983, roofers were observed being exposed to
coke-oven light oil (coal) due to its presence in a coal-tar pitch
product for which a Material Safety Data Sheet (MSDS) had been provided
to NIOSH by the product manufacturer. EPA subsequently searched for
more recent information on the composition of this product and
determined that the product was apparently reformulated in the 1990's
and that since its reformulation, it no longer contains coke-oven light
oil (coal). The name of this product is Noah's Pitch and it is
manufactured by the Jim Walter Company of the Celotex Corp. (Ref. 6).
Although the NOES data were an accurate representation of potential
worker exposure to coke-oven light oil (coal) in the 1980's, subsequent
review of this matter has led EPA to believe that roofers are no longer
exposed to coke-oven light oil (coal) through contact. ACCCI (Ref. 7)
and the two coke-oven light oil (coal) processing facilities have
provided letters (Refs. 8-10) assuring EPA that they do not manufacture
or sell coke-oven light oil (coal) for uses in roofing products (or
other uses involving substantial worker exposure). Based upon this new
information indicating a lack of potential substantial worker exposure,
the Agency is revoking the requirements for coke-oven light oil (coal)
from the HPV test rule.
B. What is the Agency's Authority for Taking this Action?
The HPV test rule requiring testing of coke-oven light oil (coal)
(Ref. 1) was promulgated under TSCA section 4 (15 U.S.C. 2603), which
mandates that EPA require that manufacturers and/or processors of
chemicals and mixtures conduct testing if certain findings are made by
EPA (see TSCA section 4(a)). One of the findings that EPA made in
promulgating the HPV test rule was that there was substantial human
(worker) exposure to each of the 17 chemicals in the HPV test rule (see
TSCA section 4(a)(1)(B)(i)(II); see also Ref. 1). Information provided
to EPA since finalization of the HPV test rule indicates that, at the
time EPA finalized the rule, worker exposure to coke-oven light oil
(coal) did not constitute ``substantial human exposure'' under TSCA
section 4(a)(1)(B), and thus EPA does not have a basis for making the
TSCA section 4(a)(1)(B)(i)(II) exposure finding.
III. Direct Final Rule
EPA is revoking the testing required by the HPV test rule (Ref. 1)
for coke-oven light oil (coal) (CAS No. 65996-78-3). The testing is
being revoked because new information does not support that, at the
time EPA made its TSCA section 4(a) findings with respect to the
chemical, a substantial number of workers were or might be exposed to
this chemical. Therefore, EPA, in this amendment, is revoking the
testing requirements for coke-oven light oil (coal) (CAS No. 65996-78-
3) by removing it from the list of chemicals in Table 2 in 40 CFR
799.5085(j) for which testing is required (Ref. 1).
EPA is publishing this amendment without prior proposal because the
Agency views this as a non-controversial amendment and anticipates no
adverse comment as this action revokes testing for which new
information has been provided to EPA which indicates that, at the time
EPA finalized the HPV test rule, potential worker exposure to coke-oven
light oil (coal) did not constitute ``substantial human exposure''
under TSCA section 4(a)(1)(B). Despite the revocation of the testing
requirements, much of the data may be made available for coke-oven
light oil (coal) because COETF, acting on behalf of ACCCI and the
American Iron and Steel Institute (AISI), has informed EPA that it is
prepared to assist EPA in assembling a summary of existing data on
coke-oven light oil (coal), after the test rule requirements for coke-
oven light oil (coal) are revoked.
This amendment is effective February 6, 2007 without further
notice, unless EPA receives adverse comment or a written request for an
opportunity to present oral comments by January 8, 2007. If EPA
receives timely adverse comment or a request for an opportunity to
present oral comments on the amendment in this direct final rule, the
Agency will publish a timely withdrawal in the Federal Register
indicating the amendment is being withdrawn due to adverse comment. If
the Agency does not receive adverse comment or a request for an
opportunity to present oral comments on the amendment in this direct
final rule, the amendment is effective February 6, 2007. If the
amendment in this direct final rule is withdrawn due to adverse comment
or a request for an opportunity to present oral comments, EPA will
publish a notice of proposed rulemaking in a future edition of the
Federal Register. The Agency will address the comment or request for an
opportunity to present oral comments on the amendment as part of that
proposed rulemaking.
IV. Economic Analysis
In the economic analysis conducted for the HPV test rule, the Agency
[[Page 71061]]
estimated the total cost to industry of the testing to be $4.03 million
for all 17 chemicals, with an average of $237,000 per chemical (Ref.
11). This total included an additional 25% in administrative costs.
This amendment reduces the total testing cost by an estimated $313,000
or approximately 8%, by eliminating the testing for coke-oven light oil
(coal). In addition, the 25% administrative cost is eliminated for
those tests as they relate to coke-oven light oil (coal). The new total
cost of the testing is estimated to be $3.7 million (i.e., $4.03
million-$313,000). The average compliance cost per chemical without
coke-oven light oil (coal) is now $232,000 (Ref. 12).
V. Export Notification
Upon the effective date of the revocation of the TSCA section 4
test rule for coke-oven light oil (coal), persons who export or intend
to export coke-oven light oil (coal) are no longer subject to the TSCA
section 12(b) export notification requirements to the extent that they
were triggered by the testing requirements being revoked by this
action. For all of the other chemicals listed as subject to the
requirements of the HPV test rule (Ref. 1), the TSCA section 12(b)
export notification requirements remain in effect.
VI. References
1. EPA. Testing of Certain High Production Volume Chemicals; Final
Rule. Federal Register (71 FR 13707, March 16, 2006) (FRL-7335-2).
Available on line at: http://www.epa.gov/fedrgstr.
2. NIOSH. National Occupational Exposure Survey (NOES). Available
on line at: http://www.cdc.gov/noes.
3. NIOSH. NOES. Estimated number of employees potentially exposed
to light oil by occupation within 2-digit Standard Industrial
Classification (SIC). 1981-1983.
4. EPA. Response to Public Comments. Prepared by Chemical
Information and Testing Branch (CITB), OPPT. May 31, 2005.
5. ACCCI. Comments on EPA's Proposed Test Rule for Testing of
Certain High Production Volume Chemicals submitted to the TSCA Public
Docket Office, EPA. April 25, 2001.
6. EPA. Contact report of phone conversation between Greg Schweer,
Chief, CITB, Chemical Control Division (CCD) and Randy Johnson, NIOSH.
April 25, 2006.
7. ACCCI. Letter from Bruce A. Steiner to Charles Auer, OPPT, EPA.
Coke-Oven Light Oil. June 16, 2006.
8. Marathon Petroleum Company LLC. Letter from Harold Rinehart to
Charles Auer, OPPT, EPA. June 1, 2006.
9. Marathon Petroleum. E-mail from Harold E. Rinehart to Charles
Auer, EPA. Coke-Oven Light Oil Clarification. August 29, 2006.
10. Citgo Petroleum Corporation. Letter from Glenn C. Rabinak to
Charles Auer, EPA. July 10, 2006.
11. EPA. Economic Analysis for the Final Section 4 Test Rule for
High Production Volume Chemicals. Prepared by Lynne Blake-Hedges, EETD,
OPPT. October 28, 2005.
12. EPA. E-mail from Lynne Blake-Hedges to Catherine Roman.
Dropping coke-oven light oil (coal) from HPV rule and revised economic
analysis conclusions. June 15, 2006.
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This direct final rule implements changes to 40 CFR 799.5085
resulting in eliminating a burden and reducing cost. Because this
direct final rule does not impose any new requirements, it is not
subject to review by the Office of Management and Budget (OMB) under
Executive Order 12866, entitled Regulatory Planning and Review
(58 FR 51735, October 4, 1993).
B. Paperwork Reduction Act
This direct final rule does not contain any information collections
subject to OMB approval under the Paperwork Reduction Act (PRA), 44
U.S.C. 3501 et seq.
C. Regulatory Flexibility Act
Because this direct final rule eliminates reporting requirements,
the Agency certifies pursuant to section 605(b) of the Regulatory
Flexibility Act (RFA) (5 U.S.C. 601 et seq.), that this revocation of
certain requirements under TSCA section 4 will not have a significant
economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
This action does not impose any enforceable duty or contain any
unfunded mandate as described under Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) (Public Law 104-4).
E. Executive Order 13132: Federalism
This direct final rule has no Federalism implications, because it
will not have substantial direct effects on States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132, entitled Federalism (64 FR 43255,
August 10, 1999).
F. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments
This direct final rule has no tribal implications because it will
not have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal Government and Indian tribes, nor
on the distribution of power and responsibilities between the Federal
Government and Indian tribes as specified in Executive Order 13175,
entitled Consultation and Coordination with Indian Tribal Governments
(59 FR 22951, November 6, 2000).
G. Executive Order 13045: Protection of Children from Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045, entitled
Protection of Children from Environmental Health Risks and Safety Risks
(62 FR 19885, April 23, 1997), because this is not an economically
significant regulatory action as defined under Executive Order 12866,
and it does not address environmental health or safety risks
disproportionately affecting children.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This direct final rule is not subject to Executive Order 13211,
entitled Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001),
because this action is not expected to affect energy supply,
distribution, or use.
I. National Technology Transfer Advancement Act
Because this action does not involve any technical standards,
section 12(d) of the National Technology Transfer and Advancement Act
of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note), does not apply to this action.
VIII. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the Agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and the Comptroller General of the United
States. EPA will submit a report containing this rule and other
[[Page 71062]]
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the 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 799
Environmental protection, Chemicals, Hazardous substances,
Reporting and recordkeeping requirements.
Dated: December 4, 2006.
James B. Gulliford,
Assistant Administrator, Office of Prevention, Pesticides and Toxic
Substances.
? Therefore, 40 CFR chapter I is amended as follows:
PART 799--AMENDED
? 1. The authority citation for part 799 continues to read as follows:
Authority: 15 U.S.C. 2603, 2611, 2625.
Sec. 799.5085 [Amended]
? 2. By removing the entry ``CAS No. 65996-78-3, Light oil (coal), coke-
oven, in Table 2 of paragraph (j) in Sec. 799.5085.
[FR Doc. E6-20908 Filed 12-7-06; 8:45 am]
BILLING CODE 6560-50-S
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