[Federal Register Volume 62, Number 164 (Monday, August 25, 1997)]
[Rules and Regulations]
[Pages 45130-45132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22511]



[[Page 45129]]

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Part VIII





Environmental Protection Agency





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40 CFR Part 68



List of Regulated Substances and Thresholds for Accidental Release 
Prevention; Final Rule

  Federal Register / Vol. 62, No. 164 / Monday, August 25, 1997 / Rules 
and Regulations  

[[Page 45130]]


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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.

------------------------------------------------------------------------
                                                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 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;

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    (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]
BILLING CODE 6560-50-P