Bergeson & Campbell, P.C. (B&C®) is a Washington, D.C. law firm providing chemical and chemical product stakeholders unparalleled experience, judgment, and excellence in matters relating to TSCA, and other global chemical management programs.

By Lynn L. Bergeson, Richard E. Engler, Ph.D., and Carla N. Hutton
On October 11, 2022, the U.S. Chemical Safety Board (CSB) released its final investigative report into “a massive fire and explosions” at the Philadelphia Energy Solutions Refinery in Philadelphia, Pennsylvania, that occurred in June 2019. According to CSB, the incident occurred when a corroded pipe elbow ruptured, releasing process fluid into the refinery’s hydrofluoric acid (HF) alkylation unit. CSB states that over 5,000 pounds of “highly toxic” HF were released, “a 38,000-pound vessel fragment launched off-site and landed on the other side of the Schuylkill River, and an estimated property damage loss of $750 million resulted.”
In its final report, CSB notes that the U.S. Environmental Protection Agency (EPA) has not yet prioritized HF or performed a risk evaluation of HF under the Toxic Substances Control Act (TSCA), as amended by the Frank R. Lautenberg Chemical Safety for the 21st Century Act. According to CSB, HF “is one of the eight most hazardous chemicals regulated by the EPA Risk Management Program (RMP).” CSB states that it concludes that EPA should initiate prioritization to evaluate whether HF is a high-priority substance for risk evaluation under TSCA. If HF is determined to be a high-priority substance, EPA should conduct a risk evaluation of HF and implement any identified corrective actions, as required by TSCA. CSB “recommends to EPA to take such action.”


While we agree that HF is a highly hazardous substance that warrants prioritization for review under Section 6 of TSCA, it is not clear how a TSCA risk evaluation will address the risks related to accidents, such as the one that was the subject of this CSB investigation. Congress clearly stated that “reasonably foreseen” conditions of use exclude misuse of a chemical substance. CSB concluded that the facility had failed to meet its obligations under the Occupational Safety and Health Administration (OSHA) and other EPA regulations, and the accident was the result of the failure of a section of pipe that was decades old. We would argue that such a failure was a misuse of HF. As a result, we would expect a TSCA risk evaluation to conclude that as long as appropriate engineering controls are used to prevent worker exposure and prevent releases to the neighboring communities under the intended and reasonably foreseen conditions of use, there is not an unreasonable risk. EPA’s review might lead to the imposition of a lower workplace exposure limit (than the OSHA permissible exposure limit (PEL)) and might lead to a lower Hazardous Air Pollutant standard under the Clean Air Act. Neither of these protective measures would have prevented the accident. Others may argue that an accidental release is reasonably foreseen (after all, it did happen), but, in our view, this accident was the result of misuse, so it is outside the definition of reasonably foreseen conditions of use.


By Lynn L. Bergeson and Carla N. Hutton

The U.S. Environmental Protection Agency (EPA) posted an August 7, 2019, petition for rulemaking submitted by the Public Employees for Environmental Responsibility (PEER) under Section 21 of the Toxic Substances Control Act (TSCA).  PEER asks that oil refineries be prohibited from using hydrofluoric acid in their manufacturing processes and that oil refineries be required to phase out the use of hydrofluoric acid within two years.  According to PEER, TSCA and the Clean Air Act (CAA) regulate hydrofluoric acid and provide the statutory authority for EPA to issue a regulation prohibiting the use of hydrofluoric acid in oil refineries.  PEER states that under TSCA, EPA “possesses the power to promulgate rules banning chemicals that pose an unreasonable risk to human health.”  If the EPA Administrator determines that the “manufacture, processing, distribution in commerce, use, or disposal of a chemical substance . . . presents an unreasonable risk of injury to health or the environment,” TSCA Section 6(a) provides EPA the authority to prohibit or otherwise restrict “the manufacture, processing, or distribution in commerce of such substance or mixture for (i) a particular use.”  PEER argues that the EPA Administrator could ban the use of hydrofluoric acid in refineries if the Administrator found that its use in that context presented an unreasonable risk to health or the environment.  PEER maintains that the use of hydrofluoric acid presents such a risk.

EPA sent a letter to PEER on August 16, 2019, confirming receipt of its petition and noting that Section 21 provides the Administrator 90 days to grant or deny the petition.  If the EPA Administrator grants the petition, the Administrator will “promptly commence an appropriate preceding [sic].”  If the Administrator denies the petition, the Administrator will publish the reasons for the denial in the Federal Register.