TSCA Section 21 Petition To Prohibit the Use of Hydrofluoric Acid at Oil Refineries; Reasons for Agency Response, 60986-60988 [2019-24406]
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60986
Federal Register / Vol. 84, No. 218 / Tuesday, November 12, 2019 / Proposed Rules
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
Environmental Protection
Agency (EPA).
AGENCY:
ACTION:
Petition for rulemaking; denial.
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.
SUMMARY:
EPA’s response to this TSCA
section 21 petition was signed
November 4, 2019.
DATES:
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:
courtnage.robert@epa.gov.
For general information contact: The
TSCA-Hotline, ABVI-Goodwill, 422
South Clinton Ave., Rochester, NY
14620; telephone number: (202) 554–
1404; email address: TSCA-Hotline@
epa.gov.
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.
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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 https://
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 https://
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
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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
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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 AntiTerrorism 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-basedperformance-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
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60987
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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Federal Register / Vol. 84, No. 218 / Tuesday, November 12, 2019 / Proposed Rules
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]
BILLING CODE 6560–50–P
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations
System
48 CFR Parts 207, 212, 215, 227, and
252
[Docket DARS–2019–0064]
RIN 0750–AK79
Defense Federal Acquisition
Regulation Supplement: Negotiation of
Price for Technical Data and
Preference for Specially Negotiated
Licenses (DFARS Case 2018–D071)
Defense Acquisition
Regulations System, Department of
Defense (DoD).
ACTION: Advance notice of proposed
rulemaking.
AGENCY:
DoD is seeking information
that will assist in the development of a
revision to the Defense Federal
Acquisition Regulation Supplement to
implement sections of the National
Defense Authorization Acts for Fiscal
Years 2018 and 2019. In brief, for DoD
only, those provisions provide for the
negotiation of a price for technical data
to be delivered under contracts for the
engineering and manufacturing
development, production, or
sustainment of a major weapon system;
and a preference for specially negotiated
licenses for customized technical data to
support the product support strategy of
a major weapon system or subsystem
thereof.
SUMMARY:
Interested parties should submit
written comments to the address shown
below on or before January 13, 2020, to
be considered in the formation of any
proposed rule.
DoD is also hosting public meetings to
obtain the views of interested parties in
accordance with the notice published in
the Federal Register on August 16,
2019, at 84 FR 41953.
ADDRESSES: Submit written comments
identified by DFARS Case 2018–D071,
using any of the following methods:
Æ Federal eRulemaking Portal: https://
www.regulations.gov. Search for
‘‘DFARS Case 2018–D071.’’ Select
‘‘Comment Now’’ and follow the
instructions provided to submit a
comment. Please include ‘‘DFARS Case
2018–D071’’ on any attached
documents.
Æ Email: osd.dfars@mail.mil. Include
DFARS Case 2018–D071 in the subject
line of the message.
Æ Fax: 571–372–6094.
Æ Mail: Defense Acquisition
Regulations System, Attn: Ms. Jennifer
D. Johnson, OUSD(A–S)DPC/DARS,
DATES:
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Room 3B941, 3060 Defense Pentagon,
Washington, DC 20301–3060.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal information provided. To
confirm receipt of your comment(s),
please check www.regulations.gov,
approximately two to three days after
submission to verify posting (except
allow 30 days for posting of comments
submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms.
Jennifer D. Johnson, telephone 571–
372–6100.
SUPPLEMENTARY INFORMATION:
I. Background
DoD is seeking information from the
public, particularly experts and
interested parties in Government and
the private sector, that will assist in the
development of a revision to the
Defense Acquisition Regulation
Supplement (DFARS) to implement
section 835 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2018 (Pub. L. 115–91) and
section 867 of the NDAA for FY 2019
(Pub. L. 115–232). Both sections are for
DoD only; they do not impact other
Federal agencies. Section 835 enacted a
new provision into permanent law (10
U.S.C. 2439) and added a new
subsection (f) to 10 U.S.C. 2320. Section
867 expanded the scope of 10 U.S.C.
2439. As a result, 10 U.S.C. 2439 now
requires that the Secretary of Defense
ensure, to the maximum extent
practicable, that DoD, before selecting a
contractor for the engineering and
manufacturing development of a major
weapon system, production of a major
weapon system, or sustainment of a
major weapon system, negotiates a price
for technical data to be delivered under
a contract for such development,
production, or sustainment. 10 U.S.C.
2320(f) now provides for a preference
for specially negotiated licenses for
customized technical data to support
the product support strategy of a major
weapon system or subsystem of a major
weapon system.
II. Discussion and Analysis
An initial draft of the proposed
revisions to the DFARS to implement
section 835 of the NDAA for FY 2018
and section 867 of the NDAA for FY
2019 is available in the Federal
eRulemaking Portal at https://
www.regulations.gov, by searching for
‘‘DFARS Case 2018–D071’’, selecting
‘‘Open Docket Folder’’ for RIN 0750–
AK79, and viewing the ‘‘Supporting
Documents’’. The strawman is also
available at https://www.acq.osd.mil/
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]]>Agencies
[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.
-----------------------------------------------------------------------
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
https://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 https://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
[[Page 60987]]
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
[[Page 60988]]
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]
BILLING CODE 6560-50-P
