45130 Federal Register / Vol. 62, No. 164 / Monday, August 25, 1997 / Rules and Regulations

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.

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.

Category Example of regulated 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
Federal Register / Vol. 62, No. 164 / Monday, August 25, 1997 / Rules and Regulations 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;
45132 Federal Register / Vol. 62, No. 164 / Monday, August 25, 1997 / Rules and Regulations

(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 costeffective 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.

§ 68.130 Tables 1 and 2 [Amended]

2. In § 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 § 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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