Clean Air Act Section 112 List of Hazardous Air Pollutant: Amendments to the List of Hazardous Air Pollutants (HAP) (2024)

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Environmental Protection Agency (EPA).

Final rule.

The U.S. Environmental Protection Agency (EPA) is amending the list of hazardous air pollutants (HAP) under Clean Air Act (CAA) to add 1-bromopropane (1-BP) in response to public petitions previously granted by the EPA. This action amends the list of hazardous air pollutants initially listed under the CAA.

This final rule is effective on February 4, 2022.

The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2014-0471. All documents in the docket are listed in https://www.regulations.gov/​. Although listed, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. With the exception of such material, publicly available docket materials are available electronically in https://www.regulations.gov/​. Out of an Start Printed Page 394 abundance of caution for members of the public and our staff, the EPA Docket Center and Reading Room are open to the public by appointment only to reduce the risk of transmitting COVID-19. Our Docket Center staff also continues to provide remote customer service via email, phone, and webform. The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention, local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/​dockets or call the Public Reading Room at (202) 566-1744 or the EPA Docket Center at (202) 566-1742.

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For questions about this final action, contact Susan Miller, Sector Policies and Programs Division (D205-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, telephone number: (919) 541-2443; fax number: (919) 541-4991; email address: miller.susan@epa.gov. You may also consult your state or local permitting representative or the appropriate EPA Regional office representative.

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Organization of this document. The information in this preamble is organized as follows:

I. General Information

II. Background

III. What does this final rule do?

IV. Statutory and Executive Order Reviews

I. General Information

A. Why is the EPA issuing this final rule?

Having previously granted petitions to add 1-BP to the CAA HAP list, this current action is the final step in granting petitioners' request. Per CAA section 112(b)(3)(B), the Administrator “shall add a substance to the list upon a showing by the petitioner or on the Administrator's own determination that the substance is an air pollutant, and that emissions, ambient concentrations, bioaccumulation or deposition of the substance are known to cause or may reasonably be anticipated to cause adverse effects to human health or adverse environmental effects.” On June 18, 2020, the EPA published its final decision to grant the petitions from two entities to list 1-BP. See 85 FR 36851. This final rule completes the listing action required when a petition is granted.

Having previously published the rationale for the decision to grant these petitions and provided an opportunity for public review and comment, the EPA has determined that there is good cause for amending the CAA HAP list without additional need for public review and comment. This final rule merely codifies a decision that was made in the June 2020 granting notice; therefore, we believe any additional public notice and comment is duplicative, unnecessary, and would serve no useful purpose.

B. Judicial Review

Under CAA section 112(e)(4), the Administrator's decision to add a pollutant to the CAA HAP list is not a final Agency action subject to judicial review, except that any such action may be reviewed when the Administrator promulgates emission standards for the pollutant. Accordingly, the decision to add 1-BP to the HAP list is not subject to judicial review until the Administrator promulgates applicable CAA section 112(d) standards that address emissions of 1-BP.

II. Background

A. What is the statutory authority for this action?

The CAA section 112(b)(3)(A) specifies that any person may petition the Administrator to modify the list of HAP contained in CAA section 112(b)(1), otherwise known as the CAA HAP list,^[1] by adding or deleting a substance. CAA section 112(b)(3)(B) sets out the substantive criteria for granting a petition. It calls for the Administrator to add a substance to the CAA section 112(b)(1) list, “upon a showing by the petitioner or on the Administrator's own determination that the substance is an air pollutant and that emissions, ambient concentrations, bioaccumulation or deposition of the substance are known to cause or may reasonably be anticipated to cause adverse effects to human health or adverse environmental effects.” The Administrator is required under the CAA section 112(b)(3)(A) to either grant or deny a petition within 18 months of the receipt of a complete petition by publishing a written explanation of the reasons for the Administrator's decision. The Administrator may not deny a petition based solely on inadequate resources or time for review.

This is the first occasion on which the EPA is adding a substance to the CAA HAP list that Congress created in 1990. Since 1990, the EPA has amended the CAA HAP list four times to remove or delist a HAP. They are caprolactam (61 FR 30816; June 18, 1996); ethylene glycol monobutyl ether (69 FR 69320; November 29, 2004); surfactant alcohol ethoxylates and their derivatives (these are compounds that were considered to be included in glycol ethers, which is a listed HAP); (65 FR 47342; August 2, 2000); and methyl ethyl ketone (MEK) (70 FR 75047; December 19, 2005)). The EPA has also denied a petition to remove methanol from the CAA HAP list (66 FR 21929; May 2, 2001).

B. What is the history of the listing process for 1-BP?

The Halogenated Solvents Industry Alliance (HSIA) and New York State Department of Environmental Conservation (NYSDEC) submitted petitions requesting that the EPA add 1-BP to the CAA section 112(b)(1) HAP list on October 28, 2010, and November 24, 2011, respectively.^[2] On November 28, 2012, in response to the EPA's requests for additional data, HSIA supplemented its petition. Following the receipt of these petitions and supplemental data, the EPA conducted a review to determine whether the petitions were complete according to Agency criteria for the CAA section 112(b)(3) actions, which we explained in the February 6, 2015, document (80 FR 6676). Specifically, the EPA determined that these petitions and supplemental data addressed all the necessary subject areas for the Agency to assess whether emissions, ambient concentrations, bioaccumulation, or deposition of 1-BP are known to cause or may reasonably be anticipated to cause adverse human health effects or adverse environmental effects. On February 6, 2015, the EPA determined these petitions to be complete and published a notification of receipt of a complete petition in the Federal Register (80 FR 6676), that invited the public to comment on the technical merits of these petitions and to submit any information relevant to the technical review of these petitions. Further, on March 11, 2015 (80 FR Start Printed Page 395 12794), the EPA extended the comment period for the notification of receipt of complete petitions to May 7, 2015. Subsequently, on January 9, 2017, the EPA published a draft notice in the Federal Register (82 FR 2354) containing the Agency's intended rationale for granting these petitions and solicited public comments on the rationale. In the draft notice, the EPA determined that these petitions met criteria specified in the CAA section 112(b)(3)(B): i.e., 1-BP is an air pollutant and its emissions and ambient concentrations “may reasonably be anticipated to cause adverse effects to human health.” Further, on June 6, 2017, the EPA extended the comment period until October 1, 2017, in response to the request by Albemarle Corporation, a U.S.-based manufacturer of 1-BP, that the Agency provide an opportunity for prospective commenters to review the 2017 Toxics Release Inventory (TRI), which included newly required reporting of 1-BP emissions. (82 FR 26091). On June 18, 2020, the EPA granted these petitions after reviewing and addressing public comments received on the draft notice containing the Agency's intended rationale for granting them. (85 FR 36851).^[3] Finally, on June 11, 2021, the EPA published an advanced notice of proposed rulemaking (ANPRM), Addition of 1-Bromopropane to Clean Air Act Section 112 HAP List, that solicited data and comments on the potential regulatory impacts of the addition of a HAP to the Section 112 HAP list. (86 FR 31225).

Based on the information and comments received in response to the ANPRM, the Agency determined that a separate regulation is needed to ensure the effective and efficient implementation of requirements triggered by the addition of a new HAP. The Agency has thus begun working on a separate regulatory “infrastructure” to address the impacts, implications, and requirements associated with the addition of a new HAP to the HAP list. In the meantime, the Agency has also determined that additional guidance may be needed on the listing of 1-BP and intends to publish such guidance upon promulgation of this rule.

C. What is 1-BP?

The compound 1-BP or n-propyl bromide (nPB),^[4] CAS #106-94-5, is a brominated organic colorless liquid that is insoluble in water but soluble in ethanol and ether. Both petitioners and public commenters provided background information regarding 1-BP's chemical properties, physical properties, production, and usage as a part of the 1-BP petition granting process. [See Docket ID No. EPA-HQ-OAR-2014-0471]. Applications of 1-BP include solvent cleaning in electronic, metal, and precision cleaning operations; aerosols; adhesives; and as an intermediate chemical in the manufacture of pharmaceuticals and agricultural products.

III. What does this final rule do?

This final rule will amend 40 CFR part 63, subpart C, to add 1-BP to the list of CAA section 112 HAP. The effective date of the addition is February 4, 2022. Once added to the HAP list, 1-BP will become subject to regulation under CAA section 112. (“EPA has a clear statutory obligation under the statute to set emission standards for each listed HAP.” National Lime Association v. EPA, 233 F.3d 625, 634 (D.C. Cir. 2000)). There is no specific period for promulgating standards for newly listed HAPs under CAA section 112(b)(1).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review because it was determined that it raised “novel legal or policy issues.” Any changes made in response to OMB recommendations have been documented in the docket. This action will have no direct immediate impacts under 40 CFR part 63 on emissions of 1-BP, but the addition of 1-BP to the HAP list could have immediate impacts to facilities that emit 1-BP ( e.g., the operating permits program under title V of the CAA).

B. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under the PRA.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the EPA concludes that the impact of concern is any significant adverse economic impact on small entities and that the Agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities if the rule has no net burden on the small entities subject to the rule. This regulatory action is ministerial in nature as it codifies a decision to list 1-BP as a HAP that was made when the petitions to list were granted. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538. This action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

E. Executive Order 13132: Federalism

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

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications as specified in Executive Order 13175. The action presents no additional burden on implementing authorities beyond existing requirements. Thus, Executive Order 13175 does not apply to this action. However, the EPA held two meetings with tribes to explain this action. The first meeting occurred on June 29, 2020, immediately after the petitions to add 1-BP were granted. The second meeting followed the June 11, 2021, publication of the ANPRM for 1-BP (86 FR 31225). Start Printed Page 396

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

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. This action codifies a decision to list 1-BP as a HAP that was made when petitions were granted in 2020.

I. National Technology Transfer and Advancement Act

This rulemaking does not involve technical standards.

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

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629; February 16, 1994) because it does not establish an environmental health or safety standard. This regulatory action is ministerial in nature as it codifies a decision to list 1-BP as a HAP that was made when petitions were granted in 2020 and does not have any direct impact on human health or the environment.

K. Congressional Review Act (CRA)

This action is subject to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule in section I of this preamble, including the basis for that finding.

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• Environmental protection
• Administrative practice and procedures
• General Provisions
• Hazardous substances

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For the reasons discussed in the preamble, the Environmental Protection Agency amends 40 CFR part 63 as follows:

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1. The authority citation for part 63 continues to read as follows:

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Authority: 42 U.S.C. 7401 et seq.

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2. Add § 63.64 to subpart C to read as follows:

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