Hazardous Materials: Revisions to the List of Hazardous Substances and Reportable Quantities

AGENCY:

Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.

ACTION:

Final rule.

SUMMARY:

PHMSA amends the Hazardous Materials Regulations (HMR) by revising the list of hazardous substances and reportable quantities (RQs) and by correcting editorial errors to the list of hazardous substances and RQs. Superfund (i.e., CERCLA) requires PHMSA to list and regulate all hazardous substances designated by the Environmental Protection Agency (EPA). This final rule enables shippers and carriers to identify the affected hazardous substances, comply with all applicable regulatory requirements, and make the required notifications if the release of a hazardous substance occurs.

DATES:

Effective Date: March 31, 2008.

Voluntary Compliance Date: PHMSA is authorizing voluntary compliance beginning February 29, 2008.

FOR FURTHER INFORMATION CONTACT:

Dirk Der Kinderen (202) 366-8553, Office of Hazardous Materials Standards, PHMSA, 1200 New Jersey Avenue, SE., East Building, Washington, DC 20590-0001. Questions about hazardous substance designations or reportable quantities should be directed to EPA at the Superfund, EPCRA, RMP and Oil Information hotline at (800) 424-9346 or, in Washington, DC, local area (703) 412-9810.

SUPPLEMENTARY INFORMATION:

I. Background

Section 306(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA; 42 U.S.C. 9601-9675), as amended by section 202 of the Superfund Amendments and Reauthorization Act of 1986 (SARA; 42 U.S.C 11011 et seq.), requires the Secretary of Transportation to regulate hazardous substances listed or designated under Section 101(14) of CERCLA, 42 U.S.C. 9601(14), as hazardous materials under the Federal hazardous materials transportation law (49 U.S.C. 5101-5128). PHMSA carries out the rulemaking responsibilities of the Secretary of Transportation under the Federal hazardous materials transportation law, 49 CFR 1.53(b). This final rule is necessary to comply with 42 U.S.C. 9656(a), as amended by Section 202 of SARA.

In carrying out the statutory mandate, PHMSA has no discretion to determine what is or is not a hazardous substance or the appropriate reportable quantity (RQ) for materials designated as hazardous substances. This authority is vested in EPA. In accordance with CERCLA requirements, EPA must issue final rules amending the list of CERCLA hazardous substances, including adjusting RQs, before PHMSA can amend the list of hazardous substances in the HMR. PHMSA periodically revises the list of hazardous substances and RQs in the HMR (49 CFR Parts 171-180) as adjustments are made by EPA.

This final rule revises the “List of Hazardous Substances and Reportable Quantities” that appears in Table 1 of Appendix A to § 172.101 to be consistent with EPA's List of Hazardous Substances and Reportable Quantities in 40 CFR 302.4 (Table 302.4). The changes made in this final rule are based on several EPA final rules that added, corrected, or deleted (removed) entries to Table 302.4. In addition, this final rule revises the “List of Hazardous Substances and Reportable Quantities” to correct typographical errors or insert inadvertent omissions from previous PHMSA rulemakings that revised the list based on previous EPA rule changes.

This final rule will enable shippers and carriers to identify CERCLA hazardous substances, comply with all applicable HMR and EPA requirements, and make required notifications if a release of a hazardous substance occurs. In addition to the reporting requirements of the HMR found in §§ 171.15 and 171.16, a release of a hazardous substance is subject to EPA notification requirements under 40 CFR 302.6 and may be subject to the reporting requirements of the U.S. Coast Guard under 33 CFR 153.203.

II. Recent Revisions to EPA Table 302.4

This final rule revises the “List of Hazardous Substances and Reportable Quantities” that appears in Table 1 of Appendix A to § 172.101 to be consistent with revisions made in recent EPA rules that followed our last reprint of Table 1. The EPA changes to Table 302.4 are discussed as follows. (See the tables below for a listing of hazardous substances added and deleted by the EPA rules discussed below.)

On July 9, 2002, EPA issued a direct final rule (67 FR 45314) correcting errors and removing obsolete or redundant language in its Table 302.4. The majority of the errors were either typographical or the result of inadvertent omissions. Specifically, errors included unintentional discrepancies between an individual hazardous substance name appearing in Table 302.4 and the same name as it appears in other statutes (i.e., Resource Conservation and Recovery Act (RCRA) section 3001, Clean Water Act (CWA) sections 307 and 311, and Clean Air Act (CAA) section 112) and their implementing regulations. EPA made corrections to the names of a number of hazardous substances to make them consistent with names that appear in these other regulatory lists. Many of these corrections are simple and involve, for example, the deletion of an unnecessary hyphen or the addition of parentheses. EPA added synonyms for six hazardous substances to Table 302.4 to be consistent with a February 9, 1995 final rule (60 FR 7824) that added a number of synonyms to RCRA regulations for those same substances. The hazardous substances and the respective synonyms that were added are “Carbaryl; (1-Napthalenol, methylcarbamate)”, “Carbofuran; (7-Benzofuranol, 2,3-dihydro-2,2-dimethyl-, methylcarbamate)”, “Mercaptodimethur; (Phenol, (3,5-dimethyl-4-(methylthio)-, methylcarbamate)”, “Mexacarbate; (Phenol, 4-(dimethylamino)-3,5-dimethyl-, methylcarbamate (ester))”, “Propoxur (Baygon); (Phenol, 2-(1-methylethoxy)-, methylcarbamate)”, and “Triethylamine; (Ethanamine, N,N-diethyl-).” EPA also added the entries “Bis(chloromethyl) ether” and “Bromomethane” as synonyms to be consistent with substances listed in section 112 of the CAA. Additionally, EPA removed a number of hazardous substances from Table 302.4 in the interest of avoiding duplicative entries and deleted a number of synonyms of hazardous substances because the synonyms are not listed in RCRA, CWA, CAA, or their implementing regulations. Please refer to the July 9, 2002 Federal Register noted above for a complete explanation of the additions and deletions. This rule revises the entries in Table 1 of Appendix A to § 172.101 of the HMR for consistency with the revisions in EPA's July 9, 2002 final rule. However, we are retaining the entry for “Methyl chloroformate” and adding the footnote “@” because “Methyl chloroformate” is also listed as a proper shipping name in the Hazardous Materials Table (HMT). The footnote “@” signifies that the entry is added by PHMSA because it is a synonym for a listed hazardous substance and appears in the HMT as a proper shipping name.

On February 24, 2005, EPA issued a final rule (70 FR 9138) that added an entry for the K181 waste code (nonwastewaters from the production of dyes and/or pigments) to Table 302.4 and assigned the waste a statutory one-pound RQ. This rule adds K181 to the “List of Hazardous Substances and Reportable Quantities.”

On August 16, 2006, EPA issued a final rule (71 FR 47106) that adjusted the RQs for 34 hazardous substances from their statutory one-pound RQs. Specifically, the rule adjusted RQs for 28 individual carbamates, five carbamate-related waste codes (K156, K157, K158, K159, and K161), and the K178 waste code (inorganic manufacturing process waste). With the exception of K156, K157, K158, and K178, these materials have not been previously listed in the HMR as hazardous substances. This rule adds the 30 previously unlisted hazardous substances to the HMR and adjusts the RQs for consistency with EPA Table 302.4.

The following tables identify hazardous substances added or deleted in this final rule as well as a Federal Register reference to the EPA rule each revision is based upon:

A. Hazardous Substances Added to Table 1 of Appendix A to § 172.101

B. Hazardous Substances Deleted From Table 1 of Appendix A to § 172.101

III. PHMSA Revisions Based on Previous EPA Rule Revisions to Table 302.4

This final rule also makes corrections to the “List of Hazardous Substances and Reportable Quantities” appearing in Table 1 of Appendix A to § 172.101 to be consistent with revisions made in past EPA final rules that pre-date the rules discussed in section II. The corrections to the “List of Hazardous Substances and Reportable Quantities” are explained as follows:

(1) “Acetic acid, (2,4,5-trichlorophenoxy)-” and “Carbamodithioic acid, 1,2-ethanediylbis-, salts & esters” were added to EPA Table 302.4 as new names for previously listed hazardous substances by a December 27, 1989 EPA final rule (54 FR 53057) but were inadvertently not added into the HMR. This rule adds “Acetic acid, (2,4,5-trichlorophenoxy)-” and “Carbamodithioic acid, 1,2-ethanediylbis-, salts & esters” to the HMR.

(2) “Diamine” and “1,2,3,4,10-10-Hexachloro-1,4,4a,5,8,8a-hexahydro-1,4:5,8-endo,exo-dimethanonaphthalene” were no longer listed in Table 302.4 as synonyms for hazardous substances by an August 14, 1989 EPA final rule (54 FR 33425) but inadvertently remained in the HMR. This rule deletes “Diamine” and “1,2,3,4,10-10-Hexachloro-1,4,4a,5,8,8a-hexahydro-1,4:5,8-endo,exo-dimethanonaphthalene” from the HMR.

(3) “3,4-Benzacridine”, “Carbamide, thio-”, “Carbamimidoselenoic acid”, “Carbon bisulfide“, “Ethanoyl chloride”, “Ethylenebisdithiocarbamic acid“, “Methanoic acid”, and “Methylene oxide” were deleted from Table 302.4 as synonyms by a December 27, 1989 EPA final rule (54 FR 53057) but inadvertently remained in the HMR. This rule deletes the synonyms from the HMR.

(4) “Methiocarb” was added to Table 302.4 as a synonym by a February 9, 1995 EPA final rule (60 FR 7824) but was inadvertently not added into the HMR. This rule adds “Methiocarb” to the HMR.

(5) “Aroclors”, “Chlorinated Camphene”, “DEHP”, “Dibromoethane”, “Hexone”, “Iodomethane”, “Lindane (all isomers)”, “PCBs”, “PCNB”, “Quinone”, “Quintobenzene”, “TCDD”, “2,4-Toluene diamine”, “2,4-Toluene diisocyanate”, and “Urethane” were added to Table 302.4 as synonyms by a June 12, 1995 EPA final rule (60 FR 30926) but were inadvertently not added into the HMR. This rule adds the synonyms to the HMR.

(6) “beta-Propiolactone” was added as a new entry to Table 302.4 by a June 12, 1995 EPA final rule (60 FR 30926) but was inadvertently not added into the HMR. This rule adds “beta-Propiolactone” to the HMR.

(7) The entry for “1,4-Diethylenedioxide” was corrected by adding “1,4-Diethyleneoxide” as a synonym to Table 302.4 by July 12, 1995 Federal Register corrections (60 FR 35991) but “1,4-Diethyleneoxide” was inadvertently not added into the HMR. This rule adds “1,4-Diethyleneoxide” to the HMR.

IV. PHMSA Changes to Table 1 of Appendix A to § 172.101

This final rule makes several non-substantive changes to the “List of Hazardous Substances and Reportable Quantities” that appears in Table 1 of Appendix A to § 172.101 of the HMR. Most of the changes correct typographical errors (i.e., incorrect RQs) and insert inadvertent omissions from printings of previous PHMSA rulemakings and the CFR. The changes include the removal of descriptive language for waste codes found in Table 1 as well as the removal of the entry “Tetrachloroethane @” because it does not also appear in the HMT as a proper shipping name. The waste code descriptions are readily available in EPA's List of Hazardous Substances and Reportable Quantities in 40 CFR 302.4. In the interest of relieving the burden of tracking EPA revisions to waste code descriptions for consistency purposes, limiting the potential for errors in the text when printing the descriptions, and space savings, we believe the waste code descriptions do not need to be duplicated in the HMR.

Several hazardous substances in Table 1 are listed with an incorrect RQ and are being corrected by this final rule. The changes are discussed as follows:

(1) The RQ for “[1,1′-Biphenyl]-4,4′-diamine, 3,3′-dimethoxy-” (and its synonym “3,3′-Dimethoxybenzidine”) was incorrectly changed from 1 to 10 pounds rather than to 100 pounds in the August 21, 1989 PHMSA final rule (HM-145G; 54 FR 34666). This rule corrects the RQ for “[1,1′-Biphenyl]-4,4′-diamine,3,3′-dimethoxy-” and its synonym to 100 pounds.

(2) The RQ for “Diethylamine” was incorrectly changed to 1000 in the November 7, 1990 PHMSA final rule (HM-145I; 55 FR 46794). This rule corrects the RQ for “Diethylamine” to 100 pounds.

(3) The F004 waste code is based on two solvents: “Cresols/Cresylic Acid” and “Nitrobenzene.” The August 2, 1995 PHMSA final rule (HM-145K; 60 FR 39608) inadvertently revised the RQ for “Nitrobenzene” from 1000 to 100 pounds rather than for “Cresols/Cresylic Acid.” This final rule corrects the RQ for “Cresols/Cresylic Acid” from 1000 to 100 pounds and the RQ for “Nitrobenzene” to 1000 pounds.

(4) The RQs for “Acetic acid, thallium(1+) salt” and “1-Acetyl-2-thiourea” were incorrectly printed starting with the 1996 edition of the CFR. This rule corrects the RQs to 100 and 1000 pounds, respectively.

(5) The RQ for “Methyl chloromethyl ether @” was inadvertently not revised to 10 pounds in the March 5, 2002 PHMSA final rule (HM-145M; 67 FR 9926). The RQs for synonyms “Chloromethyl methyl ether” and “Methane, chloromethoxy-” were revised without revising the RQ for “Methyl chloromethyl ether @.” This rule corrects the RQ for “Methyl chloromethyl ether @” to 10 pounds.

Several hazardous substances were inadvertently omitted from Table 1. The omissions as well as other corrections to Table 1 are explained as follows:

(1) “1-Chloro-2,3-epoxypropane”, “Dimethyl aminoazobenzene”, “2,6-Dinitrophenol”, “2-Methyl aziridine”, and “m-Nitrophenol” were inadvertently omitted from the HMR through reprintings of the list in previous PHMSA rulemakings. This rule returns these entries to the HMR.

(2) The entry for “DDE” (and its RQ of 5000 pounds) was inadvertently omitted from the HMR starting with the 2000 edition of the CFR. This rule returns “DDE” and its RQ of 5000 pounds to the HMR. In addition, to provide clarification that there should be two listings of “DDE” with different RQs, CAS numbers are being added to the respective “DDE” entries. Also, the footnote “#” is added to the end of Table 1 of Appendix A to § 172.101 to provide a reference to the EPA rationale for having two entries with different RQs for the hazardous substance “DDE.”

(3) “1-Naphthalenamine” and “2-Naphthalenamine” were inadvertently omitted from the HMR by including their respective synonyms, “1-Naphthylamine” and “2-Naphthylamine”, instead. This rule adds “1-Naphthalenamine” and “2-Naphthalenamine” to the HMR and deletes “1-Naphthylamine” and “2-Naphthylamine” from the HMR.

Because this rulemaking makes numerous changes to the “List of Hazardous Substances and Reportable Quantities” found in Table 1 of Appendix A to § 172.101, we are reprinting it in its entirety.

V. Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

This final rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, was not reviewed by the Office of Management and Budget. The rule is not considered significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). The economic impact associated with this final rule should be minimal for shippers and carriers for several reasons: (1) This rule does not impose new requirements on shippers or carriers of hazardous substances, but merely lists and makes corrections to hazardous substances already subject to regulation by EPA; (2) to the extent that new hazardous substances are added to the HMR requiring compliance with regulations pertaining to transport of the hazardous substances, most of the new entries already meet an existing hazard class definition and are currently subject to the HMR. For example, carbamates are widely used as ingredients in pesticides. Shippers and carriers would incur some increased costs from additional hazard communication requirements (e.g., “RQ” on shipping papers and marking of packages) but minimal compared to costs of compliance with regulations for a hazardous substance that previously had not been regulated and; (3) additional hazardous substances added into the HMR in this final rule were inadvertent omissions or are synonyms of hazardous substances already subject to the requirements.

In consideration of the changes to the RQs for several hazardous substances in this rule, we reviewed the “Economic Impact Analysis (EIA) of Proposed Reportable Quantity Adjustments for Carbamates Added as RCRA Hazardous Wastes and CERCLA Hazardous Substances, Volume VII,” dated December 2002 prepared by the Environmental Protection Agency (EPA) in support of its related final rule. A copy of that document is available for review in the EPA docket (EPA-HQ-SFUND-2002-0010-0052).

According to the EPA EIA, upward RQ adjustments for hazardous substances reduce the required telephone notification of releases and reduce government and industry time spent on recordkeeping. The effects of these actions taken together can be categorized as “cost savings.” Conversely, downward RQ adjustments would produce increases in these same actions and therefore result in additional costs. Likewise, from an HMR compliance cost perspective, upward RQ adjustments are expected to reduce costs by reducing the number of shipments subject to the hazard communication requirements for RQs or subject to the HMR in general (by being a hazardous material based solely on being defined as a hazardous substance) while downward RQ adjustments are expected to increase costs. The majority of the RQ adjustments (based on EPA adjustments) in this rule are upwards adjustments leading to an overall cost savings.

This final rule will also enhance transportation safety and environmental protection because shippers, carriers, and emergency response personnel will be able to identify specific hazardous substances and take appropriate actions to comply with the applicable packaging and hazard communication requirements and to respond to transportation incidents involving hazardous substances.

B. Executive Order 13132

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule preempts State, local and Indian tribe requirements but does not adopt any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

The Federal hazardous material transportation law, 49 U.S.C. 5101-5128, contains an express preemption provision (49 U.S.C. 5125(b)) that preempts State, local, and Indian tribe requirements on certain covered subjects. Covered subjects are:

(1) The designation, description, and classification of hazardous material;

(2) The packing, repacking, handling, labeling, marking, and placarding of hazardous material;

(3) The preparation, execution, and use of shipping documents related to hazardous materials and requirements related to the number, contents, and placement of those documents;

(4) The written notification, recording, and reporting of the unintentional release in transportation of hazardous material; or

(5) The design, manufacture, fabrication, inspection, marking, maintenance, reconditioning, repair, or testing of a packaging or container represented, marked, certified, or sold as qualified for use in transporting hazardous material.

This final rule addresses covered subject items (1), (2), and (3) above and would preempt State, local, and Indian tribe requirements not meeting the “substantively the same” standard. This rule is required by statute. Federal hazardous materials transportation law provides at Sec. 5125(b)(2) that, if PHMSA issues a regulation concerning any of the covered subjects, PHMSA must determine and publish in the Federal Register the effective date of Federal preemption. The effective date may not be earlier than the 90th day following the date of issuance of the final rule and not later than two years after the date of issuance. The effective date of Federal preemption for these requirements is April 7, 2008.

C. Executive Order 13175

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not have tribal implications, does not impose substantial direct compliance costs, and is required by statute, the funding and consultation requirements of Executive Order 13175 do not apply.

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. The Regulatory Flexibility Act applies only to final rules that are preceded by notices of proposed rulemaking (NPRM). Because this rule was not preceded by an NPRM, no assessment is required. EPA addressed the Regulatory Flexibility Act when it made the hazardous substances designation reflected in this rule.

E. Paperwork Reduction Act

This final rule does not impose any new information collection burden.

F. Regulation Identifier Number (RIN)

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

G. Unfunded Mandates Reform Act

This final rule imposes no mandates and, thus, does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $120.7 million or more to either State, local or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the rule.

H. Environmental Assessment

The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347) requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment.

Releases of hazardous substances (e.g., carbamates) have the potential to cause damage to the human environment. Releases can occur during any stage of transportation (i.e., loading, transport, unloading, etc.). When a release occurs, it may result in increased risk to public health and the environment such as increased human exposure to carcinogens or adverse impacts to vegetation and wildlife surrounding the location of the release.

Revisions made to the “List of Hazardous Substances and Reportable Quantities” found in Table 1 of Appendix A to § 172.101 in this final rule enhance environmental protection. Listing of hazardous substances in the HMR and the correct RQs promotes better identification of these materials, leading to greater compliance with the reporting requirements and effective emergency response to incidents involving these materials, thereby lessening the potential for damage to the human environment. Further, the adjustment of an RQ should not have any significant influence on the number of releases that occur for that substance. EPA considers inherent substance-specific risks as part of its RQ adjustment methodology. It is assumed that releases of hazardous substances below an (adjusted) RQ, under most release circumstances, would not pose a sufficient risk to the human environment to warrant a government response. We conclude there are no significant environmental impacts associated with this final rule.

List of Subjects in 49 CFR Part 172

• Education
• Hazardous materials transportation
• Hazardous waste
• Hazardous substances
• Labeling
• Markings
• Packaging and containers
• Reporting and recordkeeping requirements

In consideration of the foregoing, Title 49, part 172 of the Code of Federal Regulations, is amended as follows:

PART 172—HAZARDOUS MATERIALS TABLE, SPECIAL PROVISIONS, HAZARDOUS MATERIALS COMMUNICATIONS, EMERGENCY RESPONSE INFORMATION, AND TRAINING REQUIREMENTS

1. The authority citation for part 172 continues to read as follows:

Authority: 49 U.S.C. 5101-5128, 44701; 49 CFR 1.53.

2. In Appendix A to § 172.101, Table 1 is revised to read as follows:

Appendix A to § 172.101—List of Hazardous Substances and Reportable Quantities