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PT Notes

EPA RFI - Updates to the List of Regulated Substances

PTNote - EPA RFI - Updates to the List of Regulated Substances

PT Notes is a series of topical technical notes provided periodically by Primatech for your benefit. Please feel free to provide feedback.

On July 24, 2014, the U.S. Environmental Protection Agency (EPA) announced a Request for Information (RFI) seeking comments on potential revisions to its Risk Management Program (RMP) regulations and related programs to modernize its regulations. Multiple issues were addressed in the RFI.

One issue deals with modifying the list of regulated substances by:

  • Adding other toxic or flammable substances
  • Adding high and/or low explosives
  • Adding ammonium nitrate
  • Adding reactive substances and reactivity hazards
  • Adding other categories of substances
  • Removing certain substances from the RMP list or raising their threshold quantity
  • Lowering the threshold quantity for substances currently on the list

Each item is addressed below.

Adding Other Toxic or Flammable Substances

EPA is interested in determining whether there are other substances that meet the established acute toxicity or flammability criteria for listing, are in commerce, and are present in sufficient quantities that would present a risk to the community if accidentally released.

Questions posed by EPA on this issue include:

  1. What other chemical lists or other sources of information should be reviewed to identify acutely toxic or flammable chemicals meeting the RMP listing criteria?
  2. What chemicals, if any, should EPA add to the RMP list of regulated toxic and flammable substances?
  3. What would be the economic impacts of adding other toxic or flammable chemicals to the RMP list of substances? Are there any special circumstances involving small entities that EPA should consider with respect to adding such chemicals to the RMP list of substances?

Adding High and/or Low Explosives

EPA included high explosives as a class on the RMP list in 1994 but removed them in 1998 to resolve litigation. EPA is reconsidering whether it should include explosives on the RMP list.

Questions posed by EPA on this issue include:

  1. Should EPA reconsider listing explosives on the RMP list? What are the safety gaps in current regulations and practice that can best be filled by expansion of the RMP? Are there other approaches for filling any such safety gaps? What type of explosive materials should be covered and why? How many facilities manufacture, store or use explosives and what are the typical quantities stored on-site by type of facility or industry? What threshold quantities (TQs) should be established, and what should be the basis for the TQs? If EPA were to list explosives and establish a TQ at 5,000 pounds (the same TQ that was established for explosives in the 1994 list rule), how many facilities would exceed that TQ and potentially be regulated?
  2. Are there incidents involving the manufacture and processing of explosive materials that should be reviewed to determine if covering these operations under the RMP would decrease the risk of an accidental explosion affecting an off-site community? Does the presence of explosives impose unique risks on rural, disadvantaged, or otherwise environmentally burdened communities?
  3. Should the RMP regulation apply to manufacturers of explosives, end users, and/or explosive recyclers?
  4. If the RMP regulation is amended to cover explosives, should EPA consider establishing requirements for safe separation distances between explosive materials and public receptors similar to those required by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) and the Occupational Safety and Health Administration (OSHA)? What other requirements should EPA consider? Which if any of these requirements could have prevented or minimized the impacts of specific historical accidents?
  5. What would be the economic impacts of adding explosives to the RMP list of substances? Are there any special circumstances involving small entities that EPA should consider with respect to adding explosives to the RMP list of substances?
  6. As an alternative to expanding the scope of the RMP, would expanded use of the Emergency Planning and Community Right-to-Know Act (EPCRA) information and other governmental and industry programs be able to address safety gaps? What are the advantages and disadvantages of such an approach relative to expansion of the RMP?

Adding Ammonium Nitrate

EPA is requesting information on how best to address the safe storage, handling and risk management of ammonium nitrate (AN).

Questions posed by EPA on this issue include:

  1. Are there safety gaps in the current regulations for AN that could be addressed using regulations under the Clean Air Act (CAA) section 112(r)? Should EPA regulate AN under CAA section 112(r) authority to improve chemical safety practices at facilities handling AN? What types of AN and AN facilities should be subject to the RMP regulations to prevent chemical accidents involving AN that could have adverse effects, such as blast overpressure, on the public, environment and off-site property? Should EPA consider safety regulations to cover the storage and handling of AN fertilizer only and continue to rely on ATF regulations and OSHA standards to cover AN in explosives and blasting agents? What role should voluntary industry programs have in a decision on whether safety gaps exist that warrant regulation under the RMP?
  2. Should EPA amend the RMP requirements to address the hazard posed by AN? If so, what specific requirements would be appropriate for AN? Alternatively, should EPA use its regulatory authority under the CAA section 112(r)(7)(A) to require more tailored safety steps for facilities handling AN and list AN at a high threshold to better focus these requirements on fewer holders of large quantities that pose the greatest risk? What would be the benefits of regulating AN under the RMP regulations as opposed to only maintaining the current safety data sheet and hazardous chemical inventory reporting already required under EPCRA?
  3. If EPA were to regulate AN under 40 CFR part 68, what quantity of AN poses a sufficient hazard to be covered? What would be the basis for establishing this TQ?
  4. Are there any other standards, including consensus standards, applicable to AN storage, handling, and management that your facility follows? If so, which ones?
  5. If EPA were to regulate AN under CAA Section 112(r), should EPA exempt farmers who store AN for use as a fertilizer? Should there be any limits on such an exemption, such as maximum quantity on-site at any given time?

Adding Reactive Substances and Reactivity Hazards

The RMP list of substances does not specifically focus on reactive chemicals although certain listed substances are reactive. However, there are other chemicals that do not meet the RMP listing criteria but could potentially be listed based on the hazards of the byproducts of such reactions as combustion, degradation, and hydrolysis. EPA is considering including reactive chemicals on the RMP list and is seeking information on potential approaches to addressing reactive hazards, including the approach used in the New Jersey Toxic Catastrophe Prevention Act (TCPA) regulation, application of the requirements contained in the Hazardous Materials Code (NFPA 400), or other approaches.

Questions posed by EPA on this issue include:

  1. What are the best criteria to use in classifying reactive hazards? How do you identify a reactive chemical or a reactive mixture?
  2. Should EPA add reactive chemicals to the list of RMP-covered chemicals in 40 CFR 68.130? If so, which chemicals? What criteria should EPA consider using to establish TQs for reactive chemicals? Should EPA add only specific chemicals, or groups of chemicals defined by particular chemical characteristics?
  3. Should EPA list additional chlorosilanes as toxic substances on the RMP list due to their reactive hazard due to formation of hydrochloric acid when a chlorosilane is accidentally released into the air and reacts with moisture?
  4. If your facility is covered by the New Jersey TCPA regulation, have those requirements been effective in protecting human health and the environment from reactive hazards?
  5. Should EPA revise the RMP regulation to use chemical functional groups similar to those in the TCPA regulation to define hazardous reactive mixtures? If so, which chemical functional groups should EPA use?
  6. Does your facility follow NFPA 400 for reactive hazards? Is following NFPA 400 an effective way of protecting human health and the environment from reactive hazards?
  7. Has your facility implemented a reactive-hazards management program other than a program specified by the TCPA regulation and NFPA 400?
  8. What alternative regulatory approach to the TCPA regulation or NFPA 400, if any, should EPA consider using to address reactive hazards? Are there specific requirements that EPA should consider adding to the RMP regulations to ensure that owners and operators adequately manage reactive hazards?
  9. Do you have data or information on accidents, near misses, or other safety-related incidents involving reactive hazards not covered under the existing RMP regulation? What reactive-hazards management requirements might have prevented these incidents if they had been included in the RMP regulation?

Adding Other Categories of Substances

Other categories of substances beyond highly toxic and flammable liquids and gases could cause death, injury, or serious adverse effects to human health or the environment in the event of an accident. For example, certain types of flammable and explosive solids and non-volatile liquids can explode and cause blast waves that have the potential to injure people and cause property damage beyond a facility's fence line. Such explosions or detonations could involve categories of chemicals not currently regulated as RMP substances. Examples of these include organic peroxides, oxidizers, combustible dusts or other flammable solids.

Questions posed by EPA on this issue include:

  1. Should EPA consider adding organic peroxides, oxidizers, combustible dusts, flammable solids, or other additional types of chemicals to the RMP list? Are there any particular chemicals belonging to these or other classes which present a high hazard that could cause adverse effects beyond a facility's fence line in the event of an accidental release?
  2. If a particular new category of chemicals should be considered for inclusion on the RMP list, what criteria should be used to prioritize the hazard(s) and determine which chemicals should be listed?
  3. If EPA were to add combustible dusts to the lists of covered chemicals, are there categories of dusts, such as agricultural dusts, that should be excluded? What factors, such as existing handling practices, accident history, and potential risk to surrounding communities, should EPA consider in evaluating potential exclusions?

Removing Certain Substances from the RMP List or Raising Their Threshold Quantity

EPA is also seeking information on whether certain substances should be removed from the current list of regulated substances. There are six RMP chemicals for which EPA has never received a RMP report. Four are toxic chemicals: arsenous trichloride, cyanogen chloride, sulfur tetrafluoride, and tetramethyl lead. Two are flammable chemicals: chlorine monoxide and ethyl nitrite.

One of the sixteen substances mandated by Congress for the initial RMP listing was toluene diisocyanate (TDI). Currently the TQ for TDI is 10,000 pounds. EPA is considering whether the TQ should be higher because the low vapor pressure of TDI would result in a lower volatilization rate and less potential for an air release than other listed substances. EPA is requesting information on whether the methodology for assigning TQs should be changed to account for the much lower vapor pressure of TDI, and if so, information on a rationale for how it should be done.

One consideration for retaining TDI on the list of substances despite its low vapor pressure is that TDI is known as a potent dermal and lung sensitizer. In sensitized individuals, exposure to even small amounts of diisocyanates may cause allergic reactions such as asthmas and severe breathing difficulties. Thus, some accidental releases of TDI that would not cause severe acute health effects in most individuals, may trigger breathing problems or severe allergic reactions in sensitized individuals. EPA believes that the sensitizing nature of TDI should be considered when evaluating whether to raise the TQ of TDI and perhaps should be considered as a reason for lowering the TQ instead of raising it.

One of the flammable chemicals on the RMP list, 1,3-pentadiene, fails to meet the flammability criteria for inclusion on the list. Its inclusion was due to a typographical error in the boiling point of the substance as reported by a reference source.

Questions posed by EPA on this issue include:

  1. Would it be appropriate for EPA to delete TDI from the RMP toxic substances list because its vapor pressure does not meet the vapor pressure listing criteria established by EPA?
  2. If it is not appropriate to delete TDI, would it be appropriate for EPA to continue to list TDI on the RMP list but with a higher TQ for RMP reporting? Should the methodology for assigning TQs account for the much lower vapor pressure of TDI, and if so, how should this be done?
  3. If it is not appropriate to delete TDI because it is a sensitizer, should EPA continue to list TDI on the RMP list but with a lower TQ because of its unique toxicity, and if so, what should be the basis for setting a lowered TQ?
  4. Are there other listed substances that should have a higher TQ? If so, which ones, what are the appropriate TQs, and why?
  5. Should EPA delete from the RMP list any of the six substances for which the Agency has not received an RMP report if the Agency believes that they are not widespread in commerce or only stored in quantities well below the TQ?
  6. Is there any reason that EPA should not delete 1, 3-pentadiene from the RMP list as it does not meet the listing criteria for flammable substances and was erroneously listed? Are there any other RMP substances that are known to be listed based on erroneous data?

Lowering the Threshold Quantity for Substances Currently on the List

EPA is also seeking information on whether the TQ for any substances currently on the list should be reduced.

Questions posed by EPA on this issue include:

  1. Are the current TQs protective of human health and the environment, or are there certain substances for which the TQ is too high? If so, which substances? For such substances, what TQ should EPA establish and what would it be based on?
  2. What would be the economic impacts of any lowering of the TQ which might be warranted? Are there any special circumstances involving small entities that EPA should consider with respect to lowering of a TQ?

Details on these items are provided in EPA's RFI which can be accessed by clicking here.

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