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Federal Register / Vol. 86, No. 3 / Wednesday, January 6, 2021 / Rules and Regulations hazardous constituent under Appendix VIII of 40 CFR part 261 and Appendix IX of part 264, providing EPA with authority to regulate wastes containing this chemical, and to address releases from RCRA-permitted treatment, storage and disposal facilities. HCBD is listed as a hazardous waste under RCRA in 40
CFR 261.33, Hazard Waste Code U128.
In addition, HCBD is a constituent that may also cause a waste to be defined as a characteristic hazardous waste under 40 CFR 261.24. As a hazardous waste, HCBD is subject to regulation under 40
CFR parts 262 through 265, 268, and parts 270 and 271. HCBD is also a hazardous constituent under 40 CFR
part 258, Appendix II Criteria for Municipal Solid Waste Landfills, or MSWLF, which is part of the groundwater assessment program for corrective action at MSWLFs. Industrial waste non-hazardous landfills and construction/demolition waste landfills are primarily regulated under state regulatory programs, and in addition they must meet the criteria set forth in federal regulations which may include requirements for siting, groundwater monitoring and corrective action depending upon what types of wastes are accepted. Disposal by underground injection is regulated under both RCRA
and SDWA.
In addition, the CAA requires EPA to regulate hazardous air pollutants HAP
such as HCBD. CAA section 112
requires that the Agency establish National Emission Standards for Hazardous Air Pollutants NESHAP for the control of hazardous air pollutants from both new and existing major sources. The CAA requires the NESHAP
to reflect the maximum degree of reduction in emissions of HAP that is achievable, taking into consideration the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements. This level of control is commonly referred to as maximum achievable control technology MACT.
The CAA also establishes a minimum control level for MACT standards known as the MACT floor. The MACT
floor is the minimum control level allowed for NESHAP and is defined under the CAA section 112d3 Ref.
9. The chemical manufacturers that produce HCBD are in NAICS group 325
and therefore fall under the NESHAP
regulations for miscellaneous organic chemical manufacturing found at 40
CFR part 63 subpart FFFF. These regulations require facilities to treat chemicals in their waste streams at high efficiencies. For example, emissions from process vents must be reduced by
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greater than or equal to 99% by weight depending on the chemical in the waste stream. According to TRI data, chemical manufacturers that submit reports for HCBD are treating the byproduct via incineration at greater than 99.99%
treatment efficiency with some reporting an efficiency greater than 99.9999%. Under the CAA, facilities in certain industries are required to implement a Leak Detection and Repair LDAR program to reduce fugitive air emissions. Included in those industries are synthetic organic chemical manufacturers that produce the HCBD
byproduct. The LDAR program requires these facilities to monitor components such as pumps, valves, connectors and compressors for leaks. When leaks are detected, the facility is required to repair or replace the leaking component.
In view of these comprehensive, stringent programs for addressing disposal and air releases, EPA
determined that it is not practicable to impose additional requirements under TSCA on the disposal and air releases of the HCBD byproduct.
In addition, EPA proposed not to use its TSCA section 6a authorities to directly regulate occupational exposures. As explained in the proposed rule, as a matter of policy, EPA assumes compliance with federal and state requirements, such as worker protection standards, unless casespecific facts indicate otherwise. The Occupational Safety and Health Administration OSHA has not established a permissible exposure limit PEL for HCBD. However, under section 5a1 of the Occupational Safety and Health Act of 1970, 29 U.S.C. 654a1, each employer has a legal obligation to furnish to each of its employees employment and a place of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm. The OSHA Hazard Communication Standard at 29 CFR 1910.1200 requires chemical manufacturers and importers to classify the hazards of chemicals they produce or import, and all employers to provide information to employees about hazardous chemicals to which they may be exposed under normal conditions of use or in foreseeable emergencies. The OSHA standard at 29 CFR
1910.134a1 requires the use of feasible engineering controls to prevent atmospheric contamination by harmful substances and requires the use of respirators where effective engineering controls are not feasible. The OSHA
standard at 29 CFR 1910.134c details the required respiratory protection program. The OSHA standard at 29 CFR
1910.132a requires the use of personal
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protective equipment PPE by workers when necessary due to a chemical hazard; 29 CFR 1910.133 requires the use of eye and face protection when employees are exposed to hazards including liquid chemicals; and 29 CFR
1910.138 requires the use of PPE to protect employees hands including from skin absorption of harmful substances. The provisions of 29 CFR
1910.132d and f address hazard assessment, PPE selection, and training with respect to PPE required under 29
CFR 1910.133, 1910.135, 1910.136, 1910.138, and 1910.140. EPA assumes that employers will require, and workers will use, appropriate PPE
consistent with OSHA standards, taking into account employer-based assessments, in a manner sufficient to prevent occupational exposures that are capable of causing injury.
EPA assumes compliance with other federal requirements, including OSHA
standards and regulations. EPA does not read TSCA section 6h4 to direct EPA
to adopt potentially redundant or conflicting requirements. Not only would it be difficult to support broadly applicable and safe additional measures for each specific activity without a risk evaluation and in the limited time for issuance of this regulation under TSCA
section 6h, but imposing such measures without sufficient analysis could inadvertently result in conflicting or confusing requirements and make it difficult for employers to understand their obligations. Furthermore, EPA
cannot conclude that broadly imposing specific measures is practicable for all of the varied workplaces. Rather, where EPA has identified worker exposures and available substitutes, EPA is finalizing measures to reduce those exposures. As discussed in the proposed rule, EPA assumes that the worker protection methods used by employers, including in response to existing OSHA
standards, in addition to the regulatory measures taken for each chemical, meaningfully reduce the potential for occupational exposures. Although some commenters agreed with this approach, others thought that EPA should establish worker protection requirements for those uses that would be allowed to continue under the final rule. Information provided to EPA
before and during the public comment period on the proposed rule indicates that employers are using engineering and process controls and providing appropriate personal protective equipment PPE to their employees consistent with these requirements, and EPA received no information on HCBD
to suggest this is not the case. Further,
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