[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.

------------------------------------------------------------------------
                                                Example of regulated    
                 Category                             entities          
------------------------------------------------------------------------
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.             
------------------------------------------------------------------------

    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