*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review ***

Page 1 of 50 EO12866_Solids in Solution 2050
- AF08 NPRM NPRM_20101108

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 355

[ EPA
- HQ
- SFUND
- 2010
- 0586 ; FRL_XXXX
- X ] RIN 2050
- AF08

Emergency Planning and Community Right
- to - Know Act; Amendments to Emergency Planning and No tification; Emergency Planning and List of Extremely Hazardous Substances and Threshold Planning Quantities.

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Proposed Rulemaking

.

_________________________________________________________ ______________ SUMMARY : EPA is proposing to revise the manner by which the regulated community would apply the threshold planning quantities (TPQs) for those Extremely Hazardous Substances (EHS) that are non

- reactive solid chemicals in solution form. Spe cifically, facilities with a solid EHS in solution would be subject to the Emergency Planning requirements of 40 CFR 355 Subpart B

Emergency Planning if the amount of the solid chemical on

- site, when multiplied by 0.2, equaled or exceeded the lower publis hed TPQ, based on data that shows less potential for the solidPage 2 of 50

chemical in solution to remain airborne in the event of an accidental re lease. Previously, EPA assumed that 100% of the chemical could become airborne in the event of an accidental release.

D ATES: Comments : Comments must be submitted on or before [Insert date sixty (60) days from after publication in the Federal Register]

.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA

- HQ

SFUND

- 2010

- 0586 , by one of the following methods:

• http://www.regulations.gov : Follow the on

- line instructions for submitting comments.

• E

- mail: superfund.docket@epa.gov

.

• Fax : (202) 566

- 9744.

• Mail : Superfund Docket, Environmental Protection Agency, Mail code: [2822T], 1200 Pennsylvania Ave., N

. W., Washington, DC 20460.

• Hand Delivery : EPA West, Room 3334, 1301 Constitution Ave., N

. W., Washington, DC. Such deliveries are only accepted during th e Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions : Direct your comments to Docket ID No. EPA

- HQ

- SFUND

- 2010

- 0586 . EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Bus iness Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected throughPage 3 of 50

http://www.regulations.gov or e - mail. The http://www.regulations.gov Web site 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

com ment directly to EPA without going through http://www.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 an d 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/dockets.htm . For additional instructions on submitting comments, go to Section I.B of the SUPPLEMENTARY INFORMATION section of t his document.

Docket : All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information who se disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically http ://www.regulations.gov/ or in hard copy at the Superfund Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave., N

. W., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The te lephone number for the Public Reading Room is (202) 566

- 1744, and thePage 4 of 50

telephone number for the Superfund Docket is (202) 566

- 0276.

FOR FURTHER INFORMATION CONTACT: Kathy Franklin , Office of Emergency Management, Mail Code 5104A, Environmental Protection Agency, 1200 Pennsylvania Avenue, NW, Washington DC 20004; telephone number: (202) 564

- 7987; fax number: (202) 564

- 2625;

e - mail address : franklin.kathy@epa.gov You may also contact the Superfund, TRI, EPCRA, RMP and Oil Information Center at (800) 424

- 9346 or (703) 412

- 9810 (in the Washington DC metropolitan area). The Telecommunications Device for the Deaf (TDD) number is (800) 553

- 7672 or (703) 412

- 3323 (in the Washington, DC metropolitan area). You may w ish to visit the Office of Emergency Management (OEM) Internet site at www.epa.gov/oem

.

SUPPLEMENTARY INFORMATION: Here are the contents of today‘s preamble.

I. General Information A. Who is Affected by This Proposed Rule? B. What Should I Consider as I Prepare My Comments for EPA? C. What is the Statutory Authority for This Proposed Rule? D. What Is the Background for This Proposed Rule? II. Summary of This Action
A. What is the Scope of This Proposed Rule?
B. What is EPA‘s Rationale for Proposing the TPQ Changes?
C. What Alternative Approaches Were Considered?
D. What are the Peer Review Results?Page 5 of 50

E. What are the Economic Impacts of the TPQ Changes?

III. Statutory and Executive Orders
A. Executive Order 128 66: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments)
G. Executive Order 1304 5 (Protection of Children From Environmental Health Risks and Safety Risks)
H. Executive Order 13211 (Energy Effects)
I. National Technology Transfer and Advancement Act (―NTAA‖)
J. Executive Order 12898: ( Federal Actions to Address Environmental Justice in Min ority Populations and Low

- Income Populations )

I. General Information

A. Who is Affected by This Proposed Rule?

Entities that would be affected by this proposed rule are those organizations and facilities subject to section 302 of the Emergency Plann ing and Community Right

- to

- Know Act (EPCRA)Page 6 of 50

and its implementing regulations found in 40 CFR p art 355 Subpart B

- Emergency Planning. To determine whether your facility is affected by this action, you should carefully examine the applicability provisions a t 40 CFR part 355. 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.

B. What Should I Consider as I Prepare My Comments for EPA?

Tips for Preparing Your Comments. When submitting comments remember to:

Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
Follow directions

– The Agency may ask you to r espond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number. Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. Describe any assumptio ns and provide any technical information and/or data that you used. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. Provide specific examples to illustrate your con cerns, and suggest alternatives. Explain your views as clearly as possible.Page 7 of 50 Make sure to submit your comments by the comment period deadline identified.

C. What is the Statutory Authority for This Proposed Rule?

This proposed rule is being issued under t he Emergency Planning and Community Right

to

- Know Act of 1986 (EPCRA), which was enacted as Title III of the Superfund Amendments and Reauthorization Act of 1986 (Pub. L . 99

- 499), (SARA). The Agency relies on EPCRA section 328 for general rulemaking autho rity.

C. What is the Background of This Proposed Rule ?

Title III of SARA (EPCRA) establishes authorities for emergency planning and preparedness, emergency release notification reporting, community right

- to

- know reporting, and toxic chemical release rep orting. It is intended to encourage State and local planning for , and
respon se to releases of , hazardous substances and to provide the public, local governments, fire departments, and other emergency officials with information concerning potential chemica l hazards present in their communities. The implementing regulations for emergency planning, emergency release notification and the chemicals subject to these regulations (Extremely Hazardous Substances) are codified in 40 CFR part 355. The implementing regulations for community right

- to

- know reporting (or hazardous chemical reporting) are codified in 40 CFR part 370.Page 8 of 50

Subtitle A of EPCRA establishes the framework for local emergency planning. The statute requires that EPA publish a list of ―extremely hazardous substances‖ (EHSs). The EHS list was established by EPA to identify chemical substances which could cause serious irreversible health effects from accidental releases (5 2 FR 13378). The Agency was also directed to establish ―threshold planning quantities‖ (TPQs) for each extremely hazardous
substance.

Under EPCRA section 302, a facility which has an EHS in excess of its TPQ on - site must notify the State Emergency Response Commission (SERC) and Local Emergency Planning Committee (LEPC) , as wel l as participate in local emergency planning activities. Under EPCRA section 304, t he facility owner or operator must report accidental releases of EHSs and hazardous substances listed under Comprehensive Environmental Response, Compensation, and Liabilit y Act (CERCLA) listed in 40 CFR 302.4 in excess of the Reportable Quantity (RQ) to the LEPC and SERC. Under EPCRA section 311 and 312, facilities which have a hazardous chemical defined under the Hazard Communication Standards (HCS) of the Occupational S afety and Health Act (OSHA) at or above 10,000 pounds or an EHS at or above its TPQ or 500 pounds, whichever is lower, are required to submit an E mergency and H azardous C hemical I nventory form and Material Safety Data Sheet (MSDS) for that chemical to thei r SERC, LEPC and local fire department.

The purpose of the EHS list is to focus initial efforts in the development of State and local contingency plans. Inclusion of a chemical on the EHS list does not mean state or local communities should ban or othe rwise restrict use of a listed chemical. Rather, such identificationPage 9 of 50

indicates a need for the community to undertake a program to investigate and evaluate the potential for accidental exposure associated with the production, storage or handling of the che mical at a particular site and develop a chemical emergency response plan around those risks

.

1. Regulatory Background

The list of EHSs and their TPQs are codified in 40 CFR part 355, Appendices A & B. EPA first published the EHS list and TPQs along w ith the methodology for determining TPQs as an interim final rule on November 17, 1986 (51 FR 415 70 and 41580). In the final rule of April 22, 1987 (52 FR 13378) , EPA made a number of revisions

. Among other things, the final rule republished the EHS list , added four new chemicals and revised the methodology for s ome TPQs. The final rule also defined TPQs for EHS solids in solution, based on comments on the interim final rule. Details of the methodology used in determin ing whether to list a substance as

an EHS and deriving the TPQs are found in the November 1986 and April 1987 Federal Register notices and in the technical support documents in the rulemaking record. These documents are found in the docket for this rulemaking.

EPA has since amended the E HS list and deleted 51 chemicals. Ten chemicals were deleted based on the request of petitioners and the remaining 41 chemicals were deleted as a result of Agency review. The chemicals were deleted because they did not meet the toxicity criteria for the list and/or were originally listed in error. Petitions requesting deletion of two chemicals, P araquat D ichloride (which is discussed below) and I sophorone D iisocyante have been denied. Isophorone D iisocyanate was not deleted from the EHS list because i ts inhalationPage 10 of 50

toxicity met the EHS listing criteria.

EPA has also changed the TPQs for some of the EHS sub s tances. In the April 22, 1987 final rule, EPA reduced the TPQs for 36 substances , while it raised the TPQs for 12 substances based on updated a cute toxicity data. Since then, EPA has lowered the TPQ for Muscimol because of a typographical error in a prior rulemaking ; EPA has raised the TPQ for Isophorone Diisocyanate because it was mistakenly based on a physical state of reactive solid, when it is actually a liquid ; and EPA has denied a petition to raise the TPQs for Azinphos Methyl and Fenamiphos.

2. Petition for Paraquat Dichloride

Paraquat dichloride was originally listed as Paraquat with a CAS No. 1910

- 42

- 5 on the final EHS list. The lo wer TPQ was set at 10 pounds for Paraquat Dichloride with a particle size less than 100 microns in diameter, in molten form or as a solid in solution. The higher TPQ was set at 10,000 pounds for a particle size equal to or greater than 100 microns in diam eter. ICI Americas submitted a petition in October 1989 that requested the Agency to remove Paraquat from the EHS list or alternatively, revise the TPQ. The TPQ for Paraquat was based on an Immediately Dangerous to Life and Health (IDLH) value of 1.5 mi lligrams per cubic meter (mg/m 3 ). The petitioner requested that EPA base the TPQ on the LD 50 or LC 50 test results rather than the IDLH level. (LD 50 is the median lethal dose via dermal exposure or ingestion, defined as the dose at which 50 percent of the test animals died during exposure. LC 50 is the median lethal concentration, defined as the concentration level at which 50 percent of the test animalsPage 11 of 50

died when exposed by inhalation w ithin the stated study time.) ICI Americas also noted that the
CAS No . 1910

- 42

- 5 represented the chemical Paraquat Dichloride, not the Paraquat cation, which can form many different salts.

On October 12, 1994 (59 FR 51816), EPA denied the petition to delete Paraquat or modify the TPQ, but changed the listed chemical nam e from Paraquat to Paraquat Dichloride. The oral toxicity for Paraquat Dichloride met the listing criteria based on the Paraquat ion only, but did not meet the listing criteria based on to tal Paraquat Dichloride weight. Therefore, EPA changed the basis of the listing from an oral LD 50 of 22 milligrams Paraquat ion per kg of body weight (mg/kg) to an inhalation LC 50 of 0.00138 milligrams Paraquat Dichloride per liter of air (mg/L). Because this inhalation toxicity met the EHS listing criteria, Paraquat Dic hloride was not deleted from the EHS list. Further explanation of EPA‘s rationale for denying the petition can be found in the October 12, 1994 final rule (59 FR 51816).

3. Zeneca‘s Request to Reconsider the Paraquat Dichloride Petition

In November 19 99, Zeneca (formerly ICI Americas) requested that EPA reconsider either removing Paraquat Dichloride from the EHS list or raising its TPQ. Zeneca claimed that the form of the chemical used in inhalation toxicity tests (temporarily atomized powder under la boratory conditions) is not relevant data to use for listing Paraquat Dichloride. Zeneca believed that it was highly unlikely that inhalable particles or vapors of Paraquat Dichloride could become airborne during an accidental release. Zeneca did not agr ee with the rationale EPA used to assign a TPQ of 10 pounds to Paraquat Dichloride, which is only manufactured,Page 12 of 50

processed and used in solution form. Zeneca claimed that EPA did not explain why a greater potential for airborne dispersion for solids in solu tion exists as opposed to liquid chemicals.

On October 11, 2000, Syngenta (formerly Zeneca) filed an action in US District Court for the District of Columbia under the Administrative Procedures Act seeking judicial review of EPA‘s decisions regarding P araquat Dichloride. In this complaint, Syngenta requested EPA to either delete Paraquat Dichloride from the EHS list or raise its TPQ. On January 23, 2003, EPA filed a Motion for Voluntary Remand in order to reconsider the petition. The court granted
EP A‘s motion and dismissed Syngenta‘s complaint on January 31, 2003. By order of February 24, 2003, the court denied Syngenta‘s Motion to Amend Judgment. EPA again reviewed the request to delete Paraquat Dichloride and/or to raise its TPQ. In a November 2 1, 2003 letter to the petitioner, EPA reaffirmed its denial to delete Paraquat Dichloride from the EHS list. EPA concluded that the acute toxicity of Paraquat Dichloride meets the criteria for listing it as an EHS chemical. In the same letter to the pet itioner, however, EPA agreed to consider a revision to the TPQ for Paraquat Dichloride in the context of a proposed rule to amend the TPQ for all EHS chemicals handled as solids in solution.

II. Summary of This Action

A. What is the Scope of This Pro posed Rule?

The scope of this proposed rule is to revise the manner by which the regulated community would apply the TPQ for EHS chemicals that are handled as solids in solution.Page 13 of 50

There are 157 EHS chemicals that are non - reactive solids at ambient tempera ture, which could potentially be affected by this change, if they are handled by facilities in a solution form. The affected chemicals are identified in Appendix C in the Technical Support Document, which is in the Docket to this rulemaking. However, this change will not apply to the 12 solid EHS chemicals that are reactive solids (noted by footnote ―b‖ in Appendix A and B of 40 CFR part 355). Reactive solids are highly reactive with air or water or are explosive. Because of this, they are more likely th an other solids to be dispersed into the air due to the energy or heat created when they react.

Additionally, the proposed methodology of applying TPQs for solids in solution does not affect the reporting requirements for Sections 311 and 312 of EPCRA ( 40 CFR 370). Specifically, emergency planning notification under Section 302 helps LEPCs identify those facilities whose accidental releases pose risks to the surrounding community so they can develop emergency plans that identify the location and number of affected populations, evacuation or shelter

- in

- place procedures etc. On the other hand, Sections 311 and 312 require submission of MSDSs and an on

- site inventory of hazardous chemicals to help emergency responders assess how to respond to an emergency release or fire. Responders need the amounts, manner of storage and locations of the chemical on

- site, not only the amount released off

- site. They need information on the chemical and physical properties, hazard ratings, toxicity information and incompat ibilities of the chemical, as well as measures needed to contain the spill or fire at the facility. They need to know what type of protective equipment is needed to protect them from exposure, not only airborne, but dermal.Page 14 of 50

Solid EHSs (except reactive solids) have a 10,000 pound TPQ or a specified lower TPQ for certain forms . For purposes of complying with the emergency planning notification requirements of Section 302 of EPCRA, EPA is proposing that facilities multiply the amount of EHS chemical handl ed as a solid in solution on - site by 0.2 and then determine if this amount equals or exceeds the established lower TPQ. If the amount of the solid EHS in solution on

- site multiplied by 0.2 does not equal or exceed the lower TPQ for that solid EHS, then the facility is not subject to the EPCRA Section 302 emergency planning notification requirements for that substance. This amount includes only the weight of the chemical and not the solvent or other chemicals in solution. The amount of solid in solution m ay be determined by multiplying the weight percent of the solid in solution in a particular container by the weight of the solution. Solutions include aqueous or organic solutions, slurries, viscous solutions, suspensions, emulsions, and pastes. T h e revis ed TPQ methodology for solids in solution is similar to the use of the TPQ for EHS chemicals that are molten solids

. 1

The emergency release notification requirements under EPCRA Section 304 are not affected by this proposal. Section 304 requires faci lities to notify the community emergency coordinator for the LEPC of any area likely to be affected by the release and the SERC of any area likely to be affected by the release (defined in 40 CFR 355.42) at or above the Reportable Quantity (RQ) of any EHS or CERCLA hazardous substance. The RQ is not the same as the TPQ. TPQs are based on acute mammalian toxicity and potential for airborne dispersion. RQs are developed using several criteria, including aquatic toxicity, mammalian toxicity, ignitability,

r eactivity, chronic toxicity, biodegradation, hydrolysis, and photolysis (50 FR 13468, April 4,

1 The TPQ for EHSs that are in a molten form on

- site is ca lculated by multiplying the weight of the chemical by 0.3 to determine if the lower TPQ is met or exceeded.Page 15 of 50

1985).

As an example, a facility has 4,000 pounds of a solution of 37% by weight Paraquat Dichloride on

- site. Therefore, this solution contains 1,480 pounds o f Paraquat Dichloride (0.37 x 4,000 pounds). The facility would multiply 1,480 pounds by 0.2 which equals 296 pounds. This amount is then compared to the TPQ for Paraquat Dichloride, which is 10 pounds. Because this amount exceeds the 10 pound TPQ, the facility is required to comply with the emergency notification requirements of Section 302 of EPCRA.

Facilities that handle both the powdered and solution forms of a particular solid EHS will have to consider the quantities of each form and the particle size to determine whether they exceed a TPQ. For example, a facility may handle both powder and solution forms of a solid which has a lower TPQ of 500 pounds. The powder has a particle size greater than 100 microns, which means it has a TPQ of 10,000 pou nds. The amount of powder form on

- site is 5,000 pounds , which is less than the 10,000 pound TPQ. However, they have 1,000 gallon s of a 35% by weight EHS solid in solution with a d ensity of 9 pounds per gallon. T he amount of solids in solution is 3 , 150 po unds (1000 gallons x 9 pounds per gallon x 0.35). Multiply ing the 3 , 150 pounds of solid s in solution by a factor of 0.2 equates to 630 pounds, which exceed s the lower TPQ of 500 pounds. Thus, the f acility must report under Section 302 of EPCRA based on

e xceeding the lower TPQ for the solid in solution form.

EPA is proposing this change based on data in the literature that shows the original assumption of 100% potential airborne release for solids in solution is inappropriate because itPage 16 of 50

appears to overe stimate the amount of chemical that would remain airborne after release. Review of the literature for accidental releases of liquid aerosols suggests a new methodology for applying the TPQs for solids in solution is warranted. The data shows that no more than 20% of the release is expected to remain airborne. More detailed discussion can be found in Section B.4.a of this preamble and in the Technical Support Document in the docket to this proposed rule.

EPA‘s revised TPQ methodology for EHS solids in s olution and supporting data was peer reviewed and th e Technical Support Document was revised based on peer review comments. The results of the peer review and response to peer review comments are found in a separate document, Peer Review of Technical Supp ort Document for Revised TPQ Method for EHS Solids in Solution, which is available in the docket to this rulemaking

. A summary of the peer reviewer‘s comments and EPA responses to them are presented in Section II.D of this preamble.

.

B. What is EPA’ s Rationale for the TPQ Changes?

1. Development of Existing TPQs

The TPQs were initially assigned based on a ranking scheme using a Level of Concern (LOC) based on acute toxicity and the potential for airborne dispersion. The TPQ methodology is descri bed in detail in the Threshold Planning Quantities Technical Support Document dated April 7, 1987, which can be found in the docket for this rulemaking. For each chemical, aPage 17 of 50

ranking index was calculated which equaled the LOC divided by an air dispersion f actor (―V‖). For gases, ―V‖ = 1, while for liquids, ―V‖ was based on a volatilization model using the molecular weight and boiling point of the chemical.

Solid EHS chemicals with a particle size less than 100 microns in diameter, molten solids, solids in solution, and solids with a National Fire Protection Association (NFPA) reactivity rating of 2, 3, or 4 were assigned a ―V‖ equal to 1

. If the EHS solid does not have a particle size less than 1 00 microns, is not molten or handled in solution form, an d does not have an NFPA reactivity rating of 2, 3, or 4, then the EHS chemical was assigned a TPQ of 10,000 pounds , which corresponds to the highest index value

. Solids with a NFPA reactivity rating of 2, 3, or 4 are noted with footnote ―b‖ in the EHS lis t.

Between one and 10,000 pounds, chemicals were assigned to the intermediate TPQ categories of 100, 500 or 1 , 000 pounds based on the order of magnitude ranges of the index values. Also, for solids in molten form, before applying the TPQ, the amount of chemical on

- site at any time is multiplied by an adjustment factor of 0.3 to conservatively account for the maximum volatilization of the spilled molten substance that is likely to take place.

2. Petitioner‘s Arguments for Changing Paraquat Dichlor ide‘s TPQ

In their complaint, Syngenta did not agree with EPA‘s rationale to assign a lower TPQ of 10 pounds to Paraquat Dichloride, which is only manufactured, processed and used in solution form. Syngenta claimed that EPA did not explain why it assume d a greater potential for airbornePage 18 of 50

dispersion for solids in solution as opposed to liquid chemicals. In addition, Syngenta argued that Paraquat Dichloride solution is basically a non

- volatile salt dissolved in water, and that the physical and chemical cha racteristics of many solids like Paraquat Dichloride limit their capacity to become airborne. Pure Paraquat Dichloride has a very low vapor pressure and decomposes at
about 340 ° Celsius (C) before it reaches a boiling point. Syngenta further argued that using a liquid volatilization model to set a TPQ for Paraquat Dichloride is inappropriate. 2 Moreover, Syngenta stated that ―the laws of physics preclude the possibility of a release of Paraquat Dichloride becoming completely airborne. Regardless of the e mergency release scenario (extreme temperature, explosion, etc.), the amount to become airborne would not only be less than 100%, it would be virtually zero.‖ Syngenta also stated that although Paraquat Dichloride can be temporarily atomized under laborat ory conditions for testing animals, they do not believe that inhalable particles or vapors of Paraquat Dichloride can become airborne during an accidental release.

In discussions with EPA, Syngenta also raised the issue of aerosol size as a factor to be considered in developing the TPQ methodology for EHS solids in solution.

3. Basis for Existing Solids in Solution TPQs

In the April 7, 1987 Threshold Planning Quantities Technical Support Document (page 27), EPA noted that ―solids m a y also be handled in solution and molten form and could

2 EPA agrees with the petitioner that using the liquid volatilization model to set a TPQ for Paraquat Dichloride, whether handled as a pure chemica l or in solution, is inappropriate. However, the TPQ for Paraquat Dichloride was not set using the volatilization method.Page 19 of 50

potentially follow a liquid release scenario. However, even at molten temperatures, significant amounts of vapor are not likely to be generated.‖ On page 24 of the same Technical Support Document, when discussing li quid releases, EPA assumed that a spill of a liquid could occur as a result of an accidental situation that involves heat (e.g. fire, exothermic runaway reaction, or reactions with air or water).

More specifically, when a solid chemical is in solution form, the solution can behave like a liquid during an accidental release and be dispersed into the air due to overheating, overpressure or anything that can cause a loss of containment from a vessel or piece of equipment. An accident involving a release of energy could create a liquid aerosol type of release into the air. Such liquid aerosol droplets, if small enough, can be dispersed into the air and remain airborne beyond the facility boundary, resulting in EHS exposure to the surrounding community. Envi ronmental conditions and the properties of the specific chemical will dictate the behavior and dispersion of the chemical after a release or spill has occurred. For example, the solvent can evaporate from solution (especially at higher temperature) and sm all particulates of solid remaining after evaporation of the solvent can potentially be carried off

- site. EPA recognized that the solid EHS (dissolved or suspended in a liquid solution) will not be dispersed into the air based on volatilization of the soli d, but because of the energy released from the accident, or by wind.

At the time of the April 1987 rulemaking, EPA did not have sufficient information to determine how much of the solid EHS in solution could be dispersed airborne off

- site and conservative ly used V=1 for this release scenario. Furthermore, although Paraquat DichloridePage 20 of 50

decomposes at a temperature of 340 ° C (644 ° Fahrenheit, F), EPA believed that accidents involving aerosol releases of Paraquat Dichloride solution could potentially occur at

t emperatures less than 340 ° C. Boiling solutions containing non

- volatile solids result in vaporization of the solvent, but not the solid. However, the turbulence of boiling the solution can entrain liquid aerosol droplets containing the solid into the ai r.

4. Airborne Dispersion of Solids in Solution.

Based on more recent information, EPA has re

- evaluated the assumption of 100% airborne releases when setting the TPQ for solids in solution, not just for Paraquat Dichloride solution, but for all EHS soli ds in solution, except for the 12 solid EHS chemicals that are reactive solids.

a.. Liquid Aerosol Release Data

EPA reviewed data in the literature on releases of aerosols to evaluate their potential use for revising the application of the TPQs for EH S solids in solution. EPA was specifically looking for data on how much of a solution containing a dissolved or suspended solid would remain airborne after an accidental release. One problem encountered in reviewing the literature was some studies only in volved chemicals that are pure liquids and which have vapor pressures much higher than solid chemicals. That data would likely not represent the release and dispersion of a solid chemical that normally has a very low vapor pressure. However, the US Depar tment of Energy (USDOE) used experimental liquid aerosol release data involving metalPage 21 of 50

salt solutions to estimate the Airborne Release Fraction (ARF) of metal salt solutions for a wide variety of release scenarios. This information was collected in a 1994 report, which is available in the docket to this rulemaking. 3 Many of the DOE scenarios had very low ARFs; EPA considered the scenarios with higher release potential to best serve the purposes of emergency planning. Also, scenarios which required hypothe tical input data to compute the ARF were not used. When median and bounding (maximum) values of ARFs were provided for a scenario, EPA used the maximum ARF in order to be conservative and cover the worst case scenario. EPA summarized the data from those DOE aerosol release scenarios with the highest (ARFs) in the table below. (The ARF values, release scenarios from the USDOE report and other data are discussed in greater detail in the Technical Support Document for this rulemaking, which is available in the docket to this rulemaking.) From this data, EPA determined that a worst case estimate of the ARF for a solution containing non

- volatile solids would be 0.2 T his particular
ARF is based on the scenarios of an aqueous solution or air dried salts under gasoline fire on a metal surface. T he airborne fractions from the DOE report generally contain ed aerosol sizes less than or equal to 100 microns . Dr oplets larger than 100 microns in diameter are expected to fall out before they reach a community outside a facility.

Aerosol Release Scenario Maximum Airborne Release Fraction (ARF)

3 USDOE. 1994. DOE Handbook, Airborne Release Fractions/Rates and Respirable Fractions for Nonreactor Nuclear Facilities. December 1994. US Department of Energy, Washington, DC 20585 DOE

- HDBK

- 3010

- 94. Volume 1

- Analysis of Experimental Data and Volume II

- Appendices.Page 22 of 50

Thermal Stress from Boiling 0.002 High Pressure Venting Below Liquid Level 0.12 Pressure Venting Above the Liquid Level 0.002 Superheated Liquid Temp. ≥5 0 o C and ≤ 100 o C 0.1

Superheated Liquid Temp ≤50 o C 0.01 Burning Organic Layer Over Aqueous Solution 0.1 Aqueous Solution or Dry Salt Under Gasoline Fire on Metal 0.2

Aerodynamic Entrainment and Re

- Suspension 0.1

Using the highest airbo rne release fraction rather than an average result of the scenarios is consistent with the intent of the emergency planning program to plan for a reasonable worst case scenario. This data is a good surrogate to use to predict the maximum potential aerosol release fraction of EHS solids in solution in the event of an accidental release. Water is probably the most common solvent that would be used with most of the EHS solids, whether they are dissolved, suspended or emulsified in water. Many of the EHS sol ids are pesticides and pesticides are commonly applied as water solutions or emulsions.

EPA also looked at experimental data collected by the Center for Chemical Process Safety (CCPS) for aerosol releases of water and cyclohexane . EPA did not use the ae rosolPage 23 of 50

release fraction from the CCPS data because these liquids did not contain any solid material in solution. However, the CCPS data supports EPA‘s belief that assuming a 100% airborne liquid aerosol release is inappropriate.

USDOE was interested i n applying the experimental aerosol release data to estimate airborne fractions of liquid aerosol releases that were below respirable size , which they defined as particles of 10 micron Aerodynamic Equivalent Diameter (AED) or less. By US DOE‘s definition, respirable size particles are those that can be transported through the air and inhaled into the human respiratory system

.

For purposes of establishing TPQs , EPA chose a distance of 100 meters (330 feet) to represent the distance from a source inside a chemical facility to the point where the community might be exposed

. This decision was based on data indicating that a particle size greater than 100 microns is not likely to be deposited more than 100 meters from the source. The 100 micron cutoff is also consistent with CERCLA regulations (for reportable quantities) which also uses a 100 micron particle size level for powdered materials.

Most of the DOE experimental aerosol release data had median aerosol diameters of less than 100 microns. Th is size is consistent with what EPA believes is the size of aerosols to which the community could be exposed. On the other hand, t he water and cyclohexane aerosol release data compiled by CCPS had much larger mean aerosol diameter sizes, generally over 10 0 microns. For th e reasons already discussed and b ecause it is likely that aerosol releases with diameters larger than 100 microns will fall out of the air before they reach a community, thePage 24 of 50

water and cylcohexane aerosol release fractions were not used in determining the TPQs for solids in solution.

b. Liquid and Solution TPQ Comparison

Pure E HS liquids could also be released accidentally as aerosols via the same catastrophic scenarios (overpressure, superheating). It could be argued that perhaps th e TPQ method for solids in solution could also apply to liquids. However, this goes against the ranking used for setting TPQs based on the extent of airborne release s by physical state as being high for gases, less for liquids and even less for solids in solution. Currently , the release scenario used for developing the liquid TPQs considers a spill of the liquid due to a loss of containment. The liquid then escapes into the air by volatilization. An airborne release of solids in solution will require mo re than a failure of containment to have appreciable airborne dispersion. An energy

source, such as overpressure or high temperature would be required to disperse the solution into the air and create aerosol droplets. Not all of the droplets will stay air borne (unlike volatilized vapors) and affect the community, whose exposure depends on droplet size and distance from the facility fence line.

If one assumes that there is an equal potential for airborne releases for gases, liquids, small particulate sol ids and solids in solution, then the TPQ ranking scheme would change radically and rely almost entirely on the toxicity of the chemical. However, EPA believes that airborne dispersibility is a critical factor in determining TPQs. Limited State and local resources should be focused on those EHS chemicals that can potentially cause the greatest harm and lessPage 25 of 50

on those that might be toxic, but less likely to be released to the air and carried beyond the facility boundary.

As a hypothetical scenario, EPA dete rmine d if the current TPQ method for liquids gives more conservative (or at least as conservative) TPQs (lower thresholds) as compared to the proposed TPQ method ology for solids in solution . To do this, EPA estimated the T PQ s for liquids by assuming that ― V ‖ = 1 , and t hen divided it by 0.2 (based on an expected 20% maximum airborne dispersion) to determine the amount of EHS on

- site that would trigger emergency planning notification

. These amounts or ―effective TPQs‖ were then compared to the
current liste d TPQs for liquids. For 11 6 of the 163 EHS liquids, the current TPQs for liquids based on volatilization were equal to or lower than the new effective TPQs based on aerosolization. Most of the other 4 7 liquids had current TPQs that were about twice the e ffective TPQ. This comparison with a table of results for the EHS liquids is discussed in the Technical Support Document for this rulemaking. Based on this analysis, EPA believes that using the volatilization model to establish V for liquid TPQs is stil l appropriate. The spilled liquid using a boiling point scenario is probably the most prevalent worst

- case scenario that is reasonable to use for establishing TPQs for liquids.

Further examination of the 47 liquid chemicals was undertaken to see why t hese had TPQs greater than the effective TPQs

— that is, about twice the effective TPQ

. Many of these liquids had effective TPQ values of 5, 50 and 5,000 pounds. However, there are no TPQs of 5, 50 or 5,000 pounds. Rather, the use of order of magnitude in dex ranges assigned to various TPQ levels resulted in assigned TPQ values of 1, 10, 100, 500, 1,000 and 10,000 pounds. Thus,Page 26 of 50

where the effective TPQs are either 5, 50 , or 5,000 pounds, the comparison of a current TPQ

versus an effective TPQ may not be val id. More discussion on this can be found in the Technical Support Document.

C. What Alternative Approaches Were Considered?

Given the data in the literature available on aerosol releases of solid s in solution, EPA considered various alternative appro aches. One alternative was using a n index ranking method with an assigned ―V‖ similar to the orig inal method of assigning TPQs. Another alternative was
to apply the ARF to the existing lower TPQ for solids to develop a new TPQ for solids in solution for each solid EHS . A third alternative was similar to the approach of multiplying the maximum ARF by the amount on

-- site, except that the ARF would only represent aerosol sizes less than respirable size. Below we discuss these alternatives, as well as the basis for not selecting them.

1. Index Ranking Method with ―V‖ less than 1.

This alternative would establish TPQs using a ranking approach based on each chemical‘s physical state, acute toxicity and , the potential for the chemical to become airborne (― V‖)

. For this alternative, ―V‖ would be set to 0.2 for EHS solids in solution.

For the original development of the TPQs, the ranking index was defined as the LOC divided by ― V ,‖ where ― V ‖ was set equal to 1 for gases and solids in powder form with a pa rticlePage 27 of 50

size less than 100 microns , molten solids and solids in solution . For liquid EHS, ― V ‖ (the potential to become airborne) depend ed upon the property of volatility (evaporation of liquid into the gas phase). In the development of ―V‖ for use in sett ing TPQs for liquids, ―V‖ represented the mass per time evolved to the air per mass of the spill. This is explained in further detail in the April 1987 Threshold Planning Quantities Technical Support Document available in the docket.

Most of the values for ―V‖ for liquids are approximately 0.1 ( s ee Appendix B in the Technical Support Document )

. Using a higher ―V‖ equal to 0.2 for solids in solution implies that in the event of an accidental release, more of the solution w ould become airborne than if it were volatilized from a liquid spill. Even if a liquid were accidentally released via aerosol form, the volatility of the liquid chemical will increase the fraction that remains dispersed in the air. Therefore, it would not be a fair representation to ha ve a solid in solution with a ―V‖ higher than that used for a volatile liquid. Also, b ecause there are different mechanisms involved in the two types of releases, it may not be comparable to use the 0.2 as a substitute for ―V‖ for solids in
solution.

2. Existing TPQ and A erosol Release F raction.

Another alternative is to apply the ARF to the existing lower TPQ for solid s to develop a new TPQ. For example, the lower TPQ for Paraquat Dichloride is 10 pounds. Dividing 10 pounds by 0.2, the maximum expec ted aerosol release fraction for a solution, would result in a new TPQ of 50 pounds for Paraquat Dichloride in solution form. For each of the 157 non

reactive solids on the EHS list, a new TPQ for the solution form of the EHS solid could bePage 28 of 50

determined and listed. However, for each solid non - reactive chemical , there are already two TPQs, one developed based on the ranking index methodology of (Index = Level of Concern/V ) and on e based on the default TPQ of 10,000 pounds for non - molten, non

- reactive, non

- s olution solids with a particle size equal to or greater than 100 microns. Including a third set of TPQs for EHS solids in solution could be confusing to the regulated community. Thus, EPA believes that using the existing lower TPQ for solids and comparin g that to the product of the amount on

- site multiplied by 0.2 is a better approach, and similar to the approach used for the molten solids form.

3

. Using ARF Limited to Smaller Aerosol S ize s

Another approach considered is similar to the proposed appro ach of multiplying the maximum ARF by the amount on

- site, except that the ARF would only represent the fraction of aerosol s with particles less than respirable size. Through discussions with the petitioner and EPA ̳s November 2003 response to the petition , EPA has considered whether ― aerosol size ‖ should be used as a factor in developing new TPQs for solids in solution. A consultant for Syngenta believes that EPA should only consider the dispersion of aerosols with particle sizes less than or equal to 4 m icrons because these smaller aerosols are the size that can enter the lung and because the inhalation toxicity tests used for the basis of the EHS listing only used very small particles.

This approach would require sufficient data on the aerosol size dis tribution for each release scenario to develop a new ARF that would include only aerosols of size 4 microns andPage 29 of 50

lower. The ARFs currently cited for the scenarios used for the preferred approach include aerosol sizes of 100 microns and lower. For some of the USDOE accident scenarios, it is possible to recalculate the airborne aerosol fractions using the raw experimental data to include only aerosols sizes less than or equal to 4 micron s in diameter

. This result s in smaller airborne release fractions

.

E PA does not believe this approach should be used for a number of reasons, including: Inhalation toxicity tests are designed to use small particles to ensure that the lung is exposed. However, EPA is not using the inhalation toxicity for risk assessment, but only as a screening tool. Although the EHS listing for paraquat dichloride is based on inhalation toxicity, EPA also has concerns regarding dermal and ingestion exposure via swallowing for the larger aerosols. Solvent evaporation from larger aeros ols can also create smaller aerosols which can enter the lung. Each of these is discussed below.

a . A erosol Size in T oxicity T ests

Aerosols may be defined as a suspension of solid or liquid particles in air. Inhalation acute toxicity tests are purp osely designed with very small diameter particles in order to ensure that particles are small enough to enter the rodent ‘s lungs and test the toxicity in the lungs. Larger particles may not enter deep areas of the lungs and thus , test results may bePage 30 of 50

misin terpreted if little inhalation toxicity is shown. EPA is not attempting to use the airborne aerosol fraction for purposes of risk assessment, but only as a tool to set screening levels for the amount of chemicals on

- site which may potentially cause harm if accidentally released. Also, the size of the aerosols used in an animal laboratory test cannot be assumed to be the same as those that people may be exposed to during an accidental release

.

b

. Particle S ize and E xposure

I nhalable size particles ent er the respiratory tract, including the head airways and are generally equal to or less than 100 microns. Thoracic size particles (generally equal to or less than 10 microns) travel past the larynx and reach the lung airways and the gas

- exchange regions

o f the lung. Respirable size particles ( generally less than or equal to 4 microns) are a subset of thoracic particles that are more like ly to reach the gas

- exchange region of the lung. 4

Most particles that enter the upper airways are trapped in mucous t hat moves to the throat and is swallowed with in a few hours. Thus , instead of inhalation exposure deep in the lungs, exposure to larger particles of chemicals may occur through dermal exposure to mucous membranes or ingestion exposure through swallowing. Emergency planning for EHS chemicals is not limited to inhalation exposure only , although many of the EHS chemical listings are based on studies which meet the EHS listing criteria for inhalation toxicity. Although airborne exposure is the most likely ro ute of exposure, it is not the only route of exposure. In the event of

4 USEPA. October 2004. Air Quality Criteria for Particulate Matter. Vol I, Chapter 2 and Volume II, Chapter 6. U.S. Environmental Protection Agency, Office of Research and Development, National Center for Environmental Assessment. Research Triangle Park, NC. EPA/600/P

- 00/002aF and EPA/600/P

- 00/002bFPage 31 of 50

an accidental release, EPA is concerned about all routes of exposure (inhalation, dermal and ingestion ) to the community. Thus , exposure to larger size aerosols (e.g. those above 4 or 10 microns) by any route , such as through the skin or mucous membranes) should not be ignored when setting TPQs.

c. S olvent E vaporation from A erosols

Even after liquid aerosol droplets are released, some of the solvent may evaporate in the air. This would result in even smaller size aerosols or solid EHS particulates in the air to which a community would be exposed. One concern is that droplet s of size greater than 100 micron s could settle quickly, dry into a smaller particle size and then become air borne again ( re suspension). In the event of an accidental release, the responsible party should clean up chemicals deposited on the facility grounds before additional exposure to the community would take place. The USDOE report did include data on re

- suspension of particulates from soil after an aerosol release. However, the amount re

- suspended did not add much to the reasonable worst case aerosol release fraction of 0.2 This is explained further in the Technical Support
Document.

D. What are the Peer Review Results?

EPA‘s revised TPQ methodology for EHS solids in solution and supporting data was peer reviewed and th e Technical Support Document was revised based on the peer review comments. The description of the peer review process, the results of the peer review and EPA‘s response toPage 32 of 50

the peer review comments are found in a separate document, Peer Review of Technical Support Document for Revised TPQ Method for EHS Solids in Solution, which is available in the docket to this rulemaking

. Below ar e the questions posed to the peer reviewers, a summary of the peer reviewer‘s comments and EPA ‘s response.

1. Based on your reading and analysis of the information provided, do you find the revised TPQ method to be logical with a sound scientific basis?

Two of the three reviewers agreed that the revised TPQ method was logical with a sound scientific basis using the DOE experimental aerosol release data. However, one reviewer thought the revised TPQ method may not be based on the most sound science beca use the LOC is based on Immediately Dangerous to Health and Life values (IDLH) and animal lethality data that he believes may not be appropriate. Nonetheless, this reviewer did think that a cursory review of the effective TPQ list (Appendix B in Technica l Support Document) appears to have appropriately listed the ranking of chemical s by potential hazard to the public.

EPA recognizes that use of the IDLH was an imperfect measure for determining the LOC, but believes the approach provide s a consistent re lative ranking of the EHS. Where animal lethality data were substituted, safety factors were applied to the data to estimate the LOC. Human data were taken into account for some chemicals, such as chemical warfare agents, and adjustments were made to the TPQ initially based on index values. EPA realizes that better data are being developed that could be used for the LOC (such as AEGLs

- Acute Exposure Guideline Levels). However, a re

- evaluation of the LOC for all EHS chemicals would best be undertakenPage 33 of 50

by a separate rulemaking effort, given the extent and complexity of this issue.

2. Is the writing clear and concise? Has EPA provided the right level of detail? Is the method understandable? Are the results clearly presented?

Two of the three reviewers thought that the revised method was not clear and understandable and suggested improvements. For example, it was recommended that EPA clarify the definition of a solution , as well as include a flow

- chart of the method or a graph to help describe the appro ach.

EPA agree s that improvements were needed in order to present the information in a better way for the regulated community to understand and apply, and the revised technical support document addresses those concerns. Thus, additional supporting backgr ound information, discussion about the development of TPQs, and examples and calculations of how to apply the TPQs for EHS solids in solution have been added to the technical support document and has be en further explained in the preamble to the proposed rule. The proposed rule, which was not provided to the peer reviewers, is written more clearly and is less technical than the materials given to the peer reviewers to review.

One reviewer thought that EPA had provided the right amount of detail, and th ought the method is understandable, and the text is for the most part readable. However, he had several clarifications and corrections he thought EPA should make. These clarifications have been made
to the Technical Support Document , including improving a description of background on TPQPage 34 of 50

development, clarifying some terms used in the document, and adding some references and other editorial comments.

This same reviewer thought the argument against the alternative approach of using V=0.2 for developing TPQ for solids in solutions was not that convincing. EPA has revised the discussion on this alternative approach by stating that EPA believes that this approach would result in TPQs that would be too low as compared to TPQs for liquids of similar toxicity because most of the liquids have approximately V= 0.1. EPA believes that liquids have a higher potential for airborne dispersion because of their inherently higher volatility. Also, the mechanism for airborne dispersion for liquids using the spill mode l is volatilization , whereas solids in solution will be dispersed via aerosolization, so using V=0.2 for solutions may be not comparable.

3. Is the revised method consistent with the overall approach used for setting TPQs for other EHS chemicals?

All t hree reviewers thought that the revised method was fairly consistent with the approach used for setting other TPQs. However, one reviewer thought that EPA should consider lowering the TPQs for 46 of 163 EHS liquids based on the comparison of using the rev ised TPQ method versus the current method. EPA believes that using a V of 0.2 to recalculate the TPQ indexes would result in conservatively low TPQs for solids in solution as compared to liquids of the same toxicity. Given that volatilization requires o nly the loss of containment of a chemical, whereas aerosolization requires the loss of containment and usually an energy release, EPA believes the higher potential for airborne dispersion should be assigned to liquids as compared to

a non - volatile solid in solution. Because there are different mechanisms (volatilization versusPage 35 of 50

aerosolization) involved in the two types of releases, it may not be comparable to use 0.2 as a substitute for ―V‖ for solids in solution. Based on the comments, EPA has revised the discussion in the preamble to the rule of Section VI.A Use Original Ranking Method to Develop New TPQs. EPA has also provided a more logical and clearer explanation for TPQs for different forms in Appendix A: Assigning Threshold Planning Quantities (TPQs ) for Extremely Hazardous Substances.

4. Is the revised method sufficiently protective for fulfilling accident prevention purposes of section 302 of EPCRA?

The reviewers all agreed that the method was sufficiently conservative to fulfill the accident p revention purposes of section 302 of EPCRA.

5. Is the revised method presented in a straight forward and uncomplicated way for the regulated community to understand and apply?

One reviewer thought that the revised method is not particularly straight forward and uncomplicated and that the regulated community will have difficulty understanding and applying it. Another reviewer suggested that examples be provided of how to apply the method when both powdered and solution form of a solid EHS is on

- site. One reviewer thought a flow chart might be helpful to summarize the TPQ approach for the full spectrum of chemical forms.

To address these concerns, EPA has provided in the Technical Support Document and thePage 36 of 50

preamble to the proposed rule, a number of examples of how to apply the new TPQ method for solids in solution.

6. Are you aware of any other approaches or significant data/studies that are relevant and should be included or referenced in this document? Please explain.

The reviewers were not able to provide any other approaches or data that should be used to revise the TPQ method for solids in solution, although one did provide other recommendations regarding the EHS chemical listing process and the toxicity values used for TPQs. Some of thes e comments address issues that are outside the scope of the current effort, which focuses only on TPQs for solids in solution.

7. Please provide any other suggestions you may have about how to strengthen the document.

To address other comments and co ncerns of the reviewers, EPA has clarified that the 12 reactive EHS solids are not subject to the revised TPQ method for solids in solution. EPA has also added several technical references as suggested into the Technical Support Document.

E. What Are the Economic Impacts of The TPQ Changes?

Currently, facilities , who have an EHS present in an amo unt equal to or greater than the EHS‘s TPQ , are required to:Page 37 of 50

Notify the SERC and LEPC that the facility is subject to emergency planning notification. Notify th e SERC and LEPC of a facility representative to participate in the local emergency planning process. Notify the LEPC of any relevant facility changes that affect emergency planning. Provide the LEPC with the necessary information for developing a local eme rgency plan, as requested.

F or facilities with an EHS that exists as solids in solution, emergency planning notification is required if the amount of solids by weight meets or exceeds the lower published TPQ for that chemical. Solid EHSs have another hi gher TPQ of 10,000 pounds that applies only if the EHS is not in solution, has a particle size equal to or greater than 100 microns, is not molten and does not have an NFPA reactivity rating of 2, 3, or 4.

The proposed rule would subject facilities wit h an EHS solid in solution to the emergency planning requirements if t he amount of solid chemical on

- site, when multiplied by 0.2, equals or exceeds the lower published TPQ. The effect would be to allow facilities to have up to five times larger amounts of EHS solids in solution on

- site than before without being subject to the above emergency planning requirements.

Facilities who already had EHS solids in solution on

- site above the TPQ and who have already (or should have already) completed emergency planning notification should notify their LEPC if they no longer exceed the TPQ as a result of this rulemaking. S ection 303 (d)(2) of EPCRA requires facilities to promptly provide to their LEPC any changes relevant to emergencyPage 38 of 50

planning. Regulations at 4 0 CFR 355.21 clarify that relevant changes to emergency planning should be reported within 30 days. EPA expects that this notification will be a minimal burden. The emergency planning notification requirement is not required annually. Facilities, who ar e handling an EHS solid in solution for the first time, may benefit from the changes. However, if they have other EHSs on

- site which trigger the reporting requirements, they would still have to make the necessary notifications.

EPA believes that the changes proposed by this rule can benefit SERCs and LEPCs to better focus their limited resources on those amounts of EHS chemicals that will potentially cause the greatest harm and to spend fewer resources on those that pose less harm, when released. The EHS list has a total of 355 chemicals, of which 157 are non

- reactive solids. This proposed rule applies only to those 157 non

- reactive solids and only when they exist in solution form. While t he Agency does not collect information to quanti f y the nu mber of facilities that may be impacted by this rule, we suspect it will likely be a minimal number of facilities that are impacted since we believe that many of these facilities handle other EHS chemicals that will trigger the emergency planning requireme nts. However, the Agency solicits comment and data on the number of facilities that may be impacted, and the extent of the impact.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive O rder (EO) 12866 (58 FR 51735, October 4, 1993), this action is aPage 39 of 50

"significant regulatory action‖ because it raises novel policy issues arising out of litigation on the listing of Paraquat Dichloride as an EHS. S pecifically, as a result of a legal complaint seeking judicial review of a 1994 EPA decision of a petition requesting the deletion of Paraquat Dichloride from the EHS list or raising its TPQ, EPA agreed to reconsider the petition. EPA has decided to modif

y the manner by which the TPQ is applied for Paraquat Dichloride , as well as any other EHS that exist s as a non - reactive solid in solution. Specifically, facilities with a non

reactive solid EHS in solution would be subject to the Emergency Planning requi rements of 40 CFR 355 Subpart B

- Emergency Planning only if the amount of non

- reactive EHS solids in solution on

- site multiplied by 0.2 equals or e xceeds the lower published TPQ. This means that affected facilities could have up to five times larger amount s of EHS solids in solution on

- site than before without having to report its presence to local and state emergency planning organizations. Accordingly, EPA submitted this action to the Office of Management Budget for review under EO 12866 and any changes made in response to OMB r ecommendations have been documented in the docket for this action.

The proposed regulation will not 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 governments or communities. Facilities that already had EHS solids in solution on

- site above the TPQ and who have already (or should have alread y) completed emergency planning notification should notify their LEPC if the facility find s they have an EHS solid in solution on

site that no longer equals or exceeds the TPQ as a result of this rulemaking. Facilities are required to provide to their LEP C any changes relevant to emergency planning within 30 daysPage 40 of 50

(40 CFR 355.21). EPA expects that this notification will be a minimal burden. The emergency planning notification requirement is not required annually. There may be a slight burden reduction fo r facilities who are reporting EHS non

- reactive solids in solution for the first time under the Section 302 requirements.

B. Paperwork Reduction Act

This proposed rule does not impose any new information collection burden. Rather, this proposed r ule, in effect, raises the amount of chemical on

- site required before triggering emergency planning reporting under 40 CFR part 355 for EHS non

- reactive solids in solution. Facilities with this form of EHS chemical would have already (or should have alrea dy) reported their presence to their SERC and LEPC and identified a Facility Emergency Coordinator and necessary information for development of a local e mergency plan to their LEPC. If as a result of this rulemaking, facilities find that they have an EHS solid in solution on

- site which no longer equals or exceeds the TPQ, the facility should notify their LEPC. Section 303 (d)(2) of EPCRA requires facilities to promptly provide to their LEPC any changes relevant to emergency planning. Regulations at 40 CF R 355.21 clarify that relevant changes to emergency planning should be reported within 30 days. EPA expects that this notification will be a minimal burden. The emergency planning notification requirement is not required annually. There may be a slight burden reduction for facilities who are reporting EHS non

- reactive solids in solution for the first time under the Section 302 requirements.

T he Office of Management and Budget (OMB) has previously approved the informationPage 41 of 50

collection requirements conta ined in the existing regulations at 40 CFR part 355 under the provisions of the Paperwork Reduction Act , 44 U.S.C. 3501 et seq . and has assigned OMB control number 2050

- 0092 , EPA ICR number 1395.07. The OMB control numbers for EPA's regulations in 40 CF R are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the A dministrative Procedure Act or any other statute 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 organizations, and small
gover nmental jurisdictions.

For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) a small business as defined by the Small Business Administration‘s (SBA) regulations at 13 CFR 121.201; (2) a small go vernmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any "not

- for

- profit enterprise which is independently owned and operated a nd is not dominant in its field."

After considering the economic impacts of today‘s proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number ofPage 42 of 50

small entities. In determining wheth er a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and

a ddress regulatory alternatives ―which minimize any significant economic impact of the rule on small entities‖ 5 USC 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities i f the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This proposed rule changes the manner by which facilities apply the TPQs for those EHSs that are solid chemicals in sol ution form. Specifically, facilities with a non

- reactive solid EHS in solution would be subject to the Emergency Planning requirements of 40 CFR 355 Subpart B

- Emergency Planning only if the amount of non

- reactive EHS solid s in solutio n on s ite , multiplied by 0.2 equals or exceeds the lower published TPQ. This will allow affected facilities to have up to five times larger amounts of EHS solids in solution on

- site than before without having to report its presence to local and state emergency planning organi zations if they have not already done so. This propo sed rule would only affect non - reactive EHS solid chemicals and then only if the solid exists in solution form. This proposed rule would reduce burden on any facilities who would have a non

- reactive EHS solid in solution on

- site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR 355 Subpart B.

Facilities that have non - reactive EHS solids in solution on

- site have already (or shouldPage 43 of 50

have alread y) reported these chemicals to their SERC and LEPC and identified a Facility Emergency Coordinator and necessary information for developing an emergency plan to their LEPC. If a facility with an EHS solid in solution is no longer subject to the emergency planning notification because it no longer equals or exceeds the TPQ as a result of this rulemaking, they should notify their LEPC. Facilities are required to provide to their LEPC any changes relevant to emergency planning within 30 days (40 CFR 355.21). EPA expects that this will be a minimal burden. The emergency planning notification require ment is not required annually. W e have therefore concluded that today's proposed rule will relieve regulatory burden for some affected small entities and minimal ly increase the reporting burden for some affected small entities. We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts.

D. Unfunded Man dates Reform Act

This action contains no Federal mandates under the provisions of Title II of the U nfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1532

- 1538 for State, local, or tribal
gov ernments or the private sector. This proposed rule does n ot impose any new requirements on State, local or tribal governments. This action will reduce the reporting burden on any facility who would have an EHS non

- reactive solid in solution on

- site for the first time and could be subject to the emergency plannin g requirements for that chemical under 40 CFR 355 Subpart B

- Emergency Planning. Facilities currently with EHS non

- reactive solids in solution on

- site have already (or should have already) reported these chemicals to their SERC and LEPC and identified a F acility Emergency Coordinator and the necessary information for developing an emergency plan to theirPage 44 of 50

LEPC. We expect that this proposed action will neither increase nor decrease the requirements for
SERCs or LEPCs. Therefore, this action is not subject to the requirements of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This
propose d action does not impose any new requirements on State, local or tribal governments. It may reduce the number of additional emergency planning notification reports received by SERCs and LEPCs because reporting thresholds for EHS non

- reactive solids in sol ution will be applied in a manner which would allow a larger amount of EHS to be exempt from the reporting requirements

.

E. Executive Order 13132 (Federalism)

This action does not have federalism implications. It will not have substantial direct

e ffects on the 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.

This proposed rule would reduc e the reporting burden on any facilities who would have a
EHS non

- reactive solid in solution on

- site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR 355 Subpart B

- EmergencyPage 45 of 50

Planning. The pro posed rule may increase reporting for some facilities who already have reported non

- reactive EHS solids in solution to their SERC and LEPC. If a facility finds that it has an EHS non

- reactive solid in solution on

- site that no longer exceeds the TPQ as a r esult of this rulemaking, then the facility should notify their LEPC. Facilities are required to provide to their LEPC any changes relevant to emergency planning within 30 days (40 CFR 355.21). EPA expects that this will be a minimal burden. We also exp ect that this proposed action will neither increase nor decrease the requirements for SERCs or LEPCs. This rule does not impose any requirements on State or local governments. Thus, Executive Order 13132 does not apply to this action

.

In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and State and local governments, EPA specifically solicits comment on this proposed action from State and local officials.

F. Executive Order 13175 (Consulta tion and Coordination with Indian Tribal Governments)

This action does not have tribal implications, as specified in Executive Order 13175 , (65 FR 67249, November 9, 2000). This proposed rule would reduce reporting burden on any facilities who would hav e a n EHS non

- reactive solid in solution on

- site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR 355 Subpart B

- Emergency Planning. The proposed rule may increase reporting for some facilities

w ho already have reported non

- reactive EHS solids in solution to their SERC and LEPC. If a facility finds that it has an EHS non - reactive solid in solution on

- site that no longer exceeds thePage 46 of 50

TPQ as a result of this rulemaking, then the facility should noti fy their LEPC. Facilities are required to provide to their LEPC any changes relevant to emergency planning within 30 days (40 CFR 355.21). EPA expects that this will be a minimal burden. This action also does not impose any new requirements on tribal g overnments. Thus, Executive Order 13175 does not apply to this action

.

G. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks)

T his action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in Executive Order 12866 and because the Agency does not believe the environmental health or safety risks addressed by this action present a dis proportionate risk to children. This proposed rule would reduce rep orting burden on any facilities who would have a n EHS non

- reactive solid in solution on

- site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR 355 Subpart B

- Emergency Planning. The proposed rule may increase reporting for some facilities who already have reported non

- reactive EHS solids in solution to their SERC and LEPC. If a facility finds that it has an EHS solid in solution on

- site that no longer exceeds the TPQ as a result of this rulemakin g, then the facility should notify their LEPC. Facilities are required to provide to their LEPC any changes relevant to emergency planning within 30 days (40 CFR 355.21). EPA expects that this will be a minimal burden.

H. Executive Order 13211 (Energy Effects)Page 47 of 50

This action is not a ―significant energy action‖ as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Rather, t his propose d rule w ould reduce reporting burden on any facilities who would have a EHS non

- reactive solid in solution on

- site for the first time and could be subject to the emergency planning requirements for that chemical under 40 CFR 355 Subpart B

- Emergency Planni ng. The proposed rule may increase reporting for some facilities who already have reported non

- reactive EHS solids in solution to their SERC and LEPC. If a facility finds that it has an EHS solid in solution on

- site that no longer exceeds the TPQ as a res ult of this rulemaking, then the facility should notify their LEPC. Facilities are required to provide to their LEPC any changes relevant to emergency planning within 30 days (40 CFR 355.21). EPA expects that this will be a minimal burden.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (―NTTAA‖), Public Law No. 104

- 113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activit ies unless doing so would be inconsistent with applicable law or would otherwise be impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are deve loped or adopted by voluntary consensus standards bodies. NTTAA directs EPA to provide Congress, through OMB, explanations of when the Agency decides not to use available and applicable voluntary consensus standards.Page 48 of 50

This proposed rule does not involve t echnical standards. Therefore, EPA does not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

- Income Populations

Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identi fying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low

income populations in the United States.

EPA has determined that this proposed rule does not have disproportionately high and adverse human health or environmental effects on minority or low

- income populations because it does not affect the level of protection provided to human health or the environment. That is, base d on new information and data, the Agency believes that amounts of EHS non

- reactive solids in solution that would remain airborne from a potential release into the environment from an accident would be lower than previously considered, and thus, would have less impact on the local community. This in turn will allow SERCs and LEPCs to better focus their limited resources on the amounts of EHS chemicals that will potentially cause the greatest harm,Page 49 of 50

including those affecting minority or low

- income population s and to spend fewer resources on those that pose less harm, when released.

List of Subjects

40 CFR Part 355 Air pollution control, Chemicals, Disaster assistance, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Pe nalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply

Dated:

Lisa P. Jackson, Administrator PART 355

-- EMERGENCY PLANNING AND NOTIFICATION For the reasons set out in the preamble , title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows: 1. The authority citation for part 355 continues to read as follows: Authority: Sections 302, 303, 304,325, 327,328, and 329 of the Emergency Planning and Community Right

- to

- Kno w Act of 1986 (EPCRA) (42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).Page 50 of 50

2. Section 355.16 is amended by revising paragraph (b) to read as follows:

Sec. 355.16 How do I determine the quantity of extremely hazardous substances present f or certain forms of solids?

For the three forms of solids that are listed in § 355.15(a) (1) through (3) , use these instructions to determine the quantity of extremely hazardous substance present:

(a) * * *

(b) Solid s in solution . Multiply the wei ght percent of non - reactive solid s in solution in a particular container by the total weight of solution in the container. Then multiply by 0.2.

* * * * *

3

. Section 355.61 is amended by adding in alphabetical order the definition of ―Solution‖ to read as follows: Sec. 355.61 How are key words in this part defined?

***** Solution means any aqueous or organic solutions, slurries, viscous solutions, suspensions, emulsions, or pastes

.

*****