[Federal Register Volume 84, Number 218 (Tuesday, November 12, 2019)]
[Proposed Rules]
[Pages 60986-60988]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-24406]
[[Page 60986]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Chapter I
[EPA-HQ-OPPT-2019-0490; FRL-10001-34]
TSCA Section 21 Petition To Prohibit the Use of Hydrofluoric Acid
at Oil Refineries; Reasons for Agency Response
AGENCY: Environmental Protection Agency (EPA).
ACTION: Petition for rulemaking; denial.
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SUMMARY: This document announces the availability of EPA's response to
an August 7, 2019 petition it received under section 21 of the Toxic
Substances Control Act (TSCA) from Public Employees for Environmental
Responsibility (PEER). PEER petitioned EPA to prohibit the use of
hydrofluoric acid in manufacturing processes at oil refineries under
TSCA section 6(a) and require a phase-out of use at such facilities
within two years. After careful consideration, EPA has denied the TSCA
section 21 petition for the reasons discussed in this document.
DATES: EPA's response to this TSCA section 21 petition was signed
November 4, 2019.
FOR FURTHER INFORMATION CONTACT:
For technical information contact: Robert Courtnage, National
Program Chemicals Division, Mailcode 7404T, Office of Pollution
Prevention and Toxics, Environmental Protection Agency, 1200
Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 202-
566-1081, email address: [email protected].
For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address: [email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
This action is directed to the public in general. This action may,
however, be of interest to those persons who are using or may use
hydrofluoric acid in manufacturing processes at oil refineries. Since
other entities may also be interested, the Agency has not attempted to
describe all the specific entities that may be affected by this action.
B. How can I access information about this petition?
The docket for this TSCA section 21 petition, identified by docket
identification (ID) number EPA-HQ-OPPT-2019-0490, is available at
http://www.regulations.gov or at the Office of Pollution Prevention and
Toxics Docket (OPPT Docket), Environmental Protection Agency Docket
Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301
Constitution Ave. NW, 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 telephone number for the Public Reading Room is (202)
566-1744, and the telephone number for the OPPT Docket is (202) 566-
0280. Please review the visitor instructions and additional information
about the docket available at http://www.epa.gov/dockets.
II. TSCA Section 21
A. What is a TSCA section 21 petition?
Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA
to initiate a rulemaking proceeding for the issuance, amendment, or
repeal of a rule under TSCA sections 4, 6 or 8, or an order under TSCA
sections 4, 5(e) or 5(f). A TSCA section 21 petition must set forth the
facts that are claimed to establish the necessity for the action
requested. EPA is required to grant or deny the petition within 90 days
of its filing. If EPA grants the petition, the Agency must promptly
commence an appropriate proceeding. If EPA denies the petition, the
Agency must publish its reasons for the denial in the Federal Register.
A petitioner may commence a civil action in a U.S. district court to
compel initiation of the requested rulemaking proceeding within 60 days
of either a denial or, if EPA does not issue a decision, within 60 days
of the expiration of the 90-day period.
B. What criteria apply to a decision on a TSCA section 21 petition?
Section 21(b)(1) of TSCA requires that the petition ``set forth the
facts which it is claimed establish that it is necessary to issue,
amend, or repeal a rule.'' 15 U.S.C. 2620(b)(1). Thus, TSCA section 21
implicitly incorporates the statutory standards that apply to the
requested actions. In addition, TSCA section 21(b)(4)(B) establishes
standards a court must use to decide whether to order EPA to initiate
rulemaking in the event of a lawsuit filed by the petitioner. 15 U.S.C.
2620(b)(4)(B). TSCA sections 6(b) and 26 contain substantive legal and
scientific requirements for making a risk determination under section
21(b)(4)(B)(ii) in the case of a proceeding for the issuance of a TSCA
section 6(a) rule. Accordingly, EPA has relied on the standards in TSCA
sections 26 and 6 to evaluate this TSCA section 21 petition and issue
its decision to deny it.
III. Summary of the TSCA Section 21 Petition
A. What action was requested?
On August 7, 2019, PEER petitioned EPA under TSCA section 21 to
promulgate regulations pursuant to TSCA section 6(a), and under the
Administrative Procedure Act (APA) to take the same action pursuant to
section 112 of the Clean Air Act (CAA). PEER petitioned EPA to prohibit
the use of hydrofluoric acid in manufacturing processes at oil
refineries and require oil refineries to phase out the use of
hydrofluoric acid within two years. This Federal Register notice
specifically addresses PEER's TSCA section 21 petition, not the
petition under the APA.
B. What support does the petitioner offer?
PEER requests that EPA promulgate a TSCA section 6(a) rule,
asserting that: (1) Hydrofluoric acid is inherently dangerous; (2) the
potential for industrial accidents presents too great a risk; (3) there
is the potential for terrorist attacks targeting chemical plants,
including refineries; and (4) there are safer alternatives to
hydrofluoric acid for use at oil refineries. In its petition, PEER
provides information from the National Institute of Occupational Safety
and Health on the hazardous properties of hydrofluoric acid and the
significant hazard posed if released accidentally.
PEER cites events in Torrance, California, South Korea, and
Philadelphia to support concerns that additives may be ineffective in
reducing cloud formation or addressing the potential for dangerous
concentrations of hydrofluoric acid to persist miles away from the
refinery. In the Torrance case, a valve failure unrelated to
hydrofluoric acid caused an explosion and a projectile landed near
tanks containing hydrofluoric acid; however, no injuries were reported,
and no hydrofluoric acid was released. In the South Korea case, worker
error led to an escape of gaseous hydrofluoric acid. Five worker deaths
resulted, as well as many injuries to first responders. In this case,
however, there was an unawareness of hydrofluoric acid being present
and proper personal protective equipment was not worn, due to a
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difference in standards for how hydrofluoric acid is used in South
Korea.
The most recent incident PEER referenced was a fire at a refinery
in Philadelphia in June 2019. Although 5,000 pounds of hydrofluoric
acid were released due to equipment failure unrelated to hydrofluoric
acid, there were no deaths and only minor injuries (Ref. 1). A second
fire in a Richmond, California, refinery in 2012 is also referenced by
PEER as a near-miss.
PEER states that a prohibition on use of hydrofluoric acid at
refineries is warranted because there are safer alternatives that can
be readily substituted (Ref. 1). The petition offers minimal
information about these alternatives; it briefly mentions two options:
Solid acid catalyst alkylation, and ionic liquid alkylation, both of
which use non-hazardous chemicals (Ref. 1). However, PEER presents
limited information about these alternatives.
C. Background
Hydrofluoric acid is a solution of hydrogen fluoride in water and a
precursor to fluorine compounds. In oil refineries, hydrofluoric acid
is used as a catalyst in a process called alkylation. Due to its hazard
properties, hydrofluoric acid is regulated by the federal government
under several authorities, including related to preparation for
emergency response to accidental and other nonroutine releases. The
authorities include the Superfund Amendments and Reauthorization Act,
the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, the Emergency Planning and Community Right-to-Know Act,
the Resource Conservation and Recovery Act and the CAA, which are all
under the EPA's jurisdiction. Hydrofluoric acid is also regulated under
the Hazardous Materials Transportation Act under the jurisdiction of
the Department of Transportation. As PEER acknowledges, hydrofluoric
acid is regulated under the Chemical Accident Prevention Provisions, 40
CFR part 68 (commonly referred to as the Risk Management Plan (RMP)
rule pursuant to CAA section 112(r), (42 U.S.C. 7412(r)). The RMP rule
requires facilities that have certain extremely hazardous substances,
such as hydrofluoric acid, above a threshold quantity, to develop a
risk management program that identifies the potential effects of a
chemical accident, and steps the facility is taking to prevent an
accident and spells out emergency response procedures should an
accident occur. The RMP rule also requires facilities to report to EPA
a summary of the actions described in an RMP. In addition to the RMP
rule, the General Duty Clause under CAA section 112(r)(1) requires
facilities to identify hazards present from accidental releases of
extremely hazardous substances such as hydrofluoric acid, design and
maintain a safe facility, and minimize the consequences of accidental
releases.
There are also several Occupational Safety and Health
Administration (OSHA) health and safety standards that employers must
follow that apply to hydrogen fluoride, including implementing a
process safety management program under 29 CFR 1910.119; determining
the appropriate level of employee respiratory protection under 29 CFR
1910.134; implementing a hazard communication program under 29 CFR
1910.120, implementing a program of engineering controls, work
practices and personal protective equipment to control exposure under
29 CFR 1910.132 and 1910.1000); and developing and implementing an
emergency response plan, including emergency procedures and training of
personnel under 29 CFR 1910.120 and 1910.38.
The Department of Homeland Security's Cybersecurity and
Infrastructure Security Agency (CISA), through the Chemical Facility
Anti-Terrorism Standards (CFATS) program, requires facilities that use
chemicals of interest (COI) such as hydrofluoric acid to report to CISA
when a threshold of the COI is reached. Based on the assessed risk,
CISA determines whether the facility is a high-risk facility and is
then ranked into Tiers 1, 2, 3, and 4, with Tier 1 being the highest
risk. If a facility is tiered, it must submit a Security Vulnerability
Assessment (SVA) and a Site Security Plan (SSP)--or an Alternative
Security Program (ASP)--that meets the risk-based performance standards
(RBPS). More information is available at https://www.dhs.gov/cisa/risk-based-performance-standards-rbps. Among other things the RBPS address
are security issues such as perimeter security, access control,
personnel security, and cybersecurity.
IV. Disposition of TSCA Section 21 Petition
EPA is denying the petition based on the petition's lack of
sufficient facts establishing that it is necessary for the Agency to
issue a rule under TSCA section 6(a).
TSCA section 21 requires EPA to respond to a petition within 90
days of filing of the petition. If that petition requests a TSCA
section 6(a) rulemaking and EPA grants that petition, TSCA section 21
requires EPA to promptly commence an appropriate proceeding under TSCA
section 6. To grant a petition for a TSCA section 6(a) rulemaking, a
petition would need to provide the facts establishing that the
requested rulemaking is necessary. See, e.g., Trumpeter Swan Soc. v.
EPA, 774 F.3d 1037, 1040 (D.C. Cir. 2014) (explaining that TSCA section
21 requires that a petition ``set forth facts establishing the need for
the requested rule''). Those facts would need to be sufficiently clear
and robust for EPA to be able to conclude, within 90 days of filing the
petition, that the chemical presents an unreasonable risk of injury to
health or the environment and that issuance of a TSCA section 6(a) rule
is the appropriate response to the petition. To make the threshold
finding, EPA would need hazard and exposure data and other information
that enables the Agency to assess risk and conclude whether the risk is
unreasonable. In the absence of that information, EPA would need
additional factual information to make a determination, which would
require a denial and resubmittal by petitioners. Petitioners should
look to and utilize the congressionally mandated, and EPA issued,
``Guidance to Assist Interested Persons in Developing and Submitting
Draft Risk Evaluations Under the Toxic Substances Control Act.'' (EPA
740-R17-001, June 22, 2017) See TSCA section 26(l)(5). This guidance
document sets forth the ``quality of the information submitted and the
process to be followed in developing draft risk evaluations.'' Id.
The petition would need to include, for example, some analysis of
the methods used to identify the data or information submitted or used,
hazard thresholds recommended or chosen, and exposure estimates and
patterns contemplated or addressed. This factual information is
necessary for EPA to be able to determine whether there is an
unreasonable risk of injury to health or the environment, consistent
with the best available science, based on the weight-of-the-scientific-
evidence, and taking into account reasonably available information, as
required by TSCA sections 26(h), (i) and (k), respectively. The
petition would also need to include other factual information necessary
to address whether or why the requested TSCA section 6(a) rule is the
appropriate response to the petition. These are critical threshold
requirements applicable to a finding of unreasonable risk and a
determination that TSCA section 6(a) rulemaking is
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necessary. A petition without such information is facially incomplete
because it fails to provide minimum factual information for EPA to make
the threshold findings needed to respond to and act on the petition as
contemplated by TSCA section 21.
In this case, PEER's petition refers to hazard databases and makes
conclusory statements of toxicity but provides little further
information that would support granting a TSCA section 6(a) rulemaking
request. The petition lacks analysis that would be expected in a TSCA
risk evaluation preceding a section 6(a) rulemaking. For example, there
is no discussion of the appropriate hazard threshold, exposure
estimates, assessment of risks, or how the facts presented allow EPA to
comply with its duties under section 26 or other statutory requirements
in making an unreasonable risk determination. Absent such minimal
factual information, EPA cannot make the threshold determinations
necessary to substantively assess and grant a petition for a TSCA
section 6(a) rulemaking. As a result, EPA denies PEER's petition
request as facially incomplete.
V. References
The following is a listing of the documents that are specifically
referenced in this document. The docket includes these documents and
other information considered by EPA, including documents that are
referenced within the documents that are included in the docket, even
if the referenced document is not physically located in the docket. For
assistance in locating these other documents, please consult the
technical person listed under FOR FURTHER INFORMATION CONTACT.
Whitehouse, Timothy, Public Employees for Environmental
Responsibility (PEER) to the Administrator of the Environmental
Protection Agency. Re: Ban on Hydrofluoric Acid in Refineries: Petition
for Rulemaking. Received August 7, 2019.
List of Subjects in 40 CFR Chapter I
Environmental protection, Hydrofluoric Acid, Oil Refineries,
Chemicals, Hazardous substances, Prohibition on Chemicals.
Dated: November 4, 2019.
Alexandra Dapolito Dunn,
Assistant Administrator, Office of Chemical Safety and Pollution
Prevention.
[FR Doc. 2019-24406 Filed 11-8-19; 8:45 am]
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