[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]



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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: 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.

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]
 BILLING CODE 6560-50-P


