[Federal Register Volume 63, Number 3 (Tuesday, January 6, 1998)]
[Rules and Regulations]
[Pages 640-645]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-267]
[[Page 639]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 68
List of Regulated Substances and Thresholds for Accidental Release
Prevention; Final Rule
Federal Register / Vol. 63, No. 3 / Tuesday, January 6, 1998 / Rules
and Regulations
[[Page 640]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-5940-4]
RIN 2050-AE35
List of Regulated Substances and Thresholds for Accidental
Release Prevention; Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is modifying the
rule listing regulated substances and threshold quantities under
section 112(r) of the Clean Air Act as amended. EPA is deleting the
category of Division 1.1 explosives (as listed by DOT) from the list of
regulated substances. Regulated flammable substances in gasoline used
as fuel and in naturally occurring hydrocarbon mixtures prior to
initial processing are exempted from threshold quantity determinations,
and the provision for threshold determination of flammable substances
in a mixture is clarified. The definition of stationary source is
modified to clarify the exemption of transportation and storage
incident to transportation and to clarify that naturally occurring
hydrocarbon reservoirs are not stationary sources or parts of
stationary sources. In addition, EPA is clarifying that the Chemical
Accident Prevention Provisions do not apply to sources located on the
Outer Continental Shelf. EPA believes these changes will better focus
accident prevention activities on stationary sources with high hazard
operations and reduce duplication with other similar requirements.
DATES: This rule is effective January 6, 1998.
ADDRESSES: Docket: The docket for this rulemaking is A-96-O8. This rule
amends a final rule, the docket for which is A-91-74. The docket may be
inspected between 8:00 a.m. and 5:30 p.m., Monday through Friday, at
EPA's Air Docket, Room M1500, Waterside Mall, 401 M St., SW,
Washington, DC 20460; telephone (202) 260-7548. A reasonable fee may be
charged for copying.
FOR FURTHER INFORMATION CONTACT: Vanessa Rodriguez, Chemical Engineer,
(202) 260-7913, Chemical Emergency Preparedness and Prevention Office,
U.S. Environmental Protection Agency, MC-5101, 401 M St. SW,
Washington, DC 20460, or the Emergency Planning and Community Right-to-
Know Hotline at 1-800-424-9346.
SUPPLEMENTARY INFORMATION:
Regulated Entities
Entities potentially affected by this action are those stationary
sources that have more than a threshold quantity of a regulated
substance in a process. Regulated categories and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Chemical Manufacturers................. Industrial organics &
inorganics, paints,
pharmaceuticals, adhesives,
sealants, fibers.
Petrochemical.......................... Refineries, industrial gases,
plastics & resins, synthetic
rubber.
Other Manufacturing.................... Electronics, semiconductors,
paper, fabricated metals,
industrial machinery,
furniture, textiles.
Agriculture............................ Fertilizers, pesticides.
Public Sources......................... Drinking and waste water
treatment works.
Utilities.............................. Electric and Gas Utilities.
Others................................. Oil and gas exploration and
production, natural gas
processing, food and cold
storage, propane retail,
warehousing and wholesalers.
Federal Sources........................ Military and energy
installations.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. Other types of entities not listed in the table also could be
affected. To determine whether a stationary source is affected by this
action, carefully examine the provisions of today's notice. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the preceding For Further
Information Contact section.
The following outline is provided to aid in reading this preamble:
Table of Contents
I. Introduction and Background
A. Statutory Authority
B. Regulatory History
C. List Rule Litigation
II. Discussion of the Final Rule and Public Comments
A. Explosives
B. Regulated Flammable Substances in Gasoline and in Naturally
Occurring Hydrocarbon Mixtures
C. Clarification of Threshold Determination of Regulated
Flammable Substances in
Mixtures
D. Definition of Stationary Source
E. Applicability to Outer Continental Shelf
III. Summary of Revisions to the Rule
IV. Judicial Review
V. Required Analyses
A. Executive Order 12866
B. Regulatory Flexibility
C. Paperwork Reduction
D. Unfunded Mandates Reform Act
E. Submission to Congress and the General Accounting Office
F. National Technology Transfer and Advancement Act
I. Introduction and Background
A. Statutory Authority
This final rule is being issued under sections 112(r) and 301 of
the Clean Air Act (CAA or Act) as amended.
B. Regulatory History
The CAA, section 112(r), requires EPA to promulgate an initial list
of at least 100 substances (``regulated substances'') that, in the
event of an accidental release, are known to cause or may be reasonably
expected to cause death, injury, or serious adverse effects to human
health and the environment. The CAA also requires EPA to establish a
threshold quantity for each chemical at the time of listing. Stationary
sources that have more than a threshold quantity of a regulated
substance are subject to accident prevention regulations promulgated
under CAA section 112(r)(7), including the requirement to develop risk
management plans.
On January 31, 1994, EPA promulgated the list of regulated
substances and thresholds that identify stationary sources subject to
the accidental release prevention regulations (59 FR 4478) (the ``List
Rule''). The listed substances included 77 acutely toxic substances, 63
flammable gases and volatile flammable liquids, and Division 1.1 high
explosive substances as listed by the United States Department of
Transportation (DOT) in 49 CFR 172.101. EPA subsequently promulgated a
rule requiring owners
[[Page 641]]
and operators of stationary sources with listed substances above their
threshold quantities to develop programs addressing accidental releases
and to make publicly available risk management plans (``RMPs'')
summarizing these programs (61 FR 31668, June 20, 1996) (the ``RMP
Rule''). For further information on these regulations, section 112(r),
and related statutory provisions, see these notices. These rules can be
found in 40 CFR part 68, ``Chemical Accident Prevention Provisions,''
and collectively are referred to as the accidental release prevention
regulations.
C. List Rule Litigation
The American Petroleum Institute (API) and the Institute of Makers
of Explosives (IME) filed petitions for judicial review of the List
Rule (American Petroleum Institute v. EPA, No. 94-1273 (D.C. Cir.) and
consolidated cases). On March 28, 1996, EPA made available for public
comment under CAA section 113(g) proposed settlement agreements with
API and IME (61 FR 13858, March 28, 1996). Consistent with these
agreements, EPA proposed amendments to the List Rule on April 15, 1996
(61 FR 16598). On June 20, 1996, EPA promulgated a stay of certain
provisions of the List Rule that were affected by the proposed
amendments (61 FR 31730). EPA is today taking final action on the
amendments proposed in April 1996.
II. Discussion of the Final Rule and Public Comments
In this final rule, EPA is taking the following actions to amend
the List Rule: delisting explosives; exempting from threshold
determination regulated flammable substances in gasoline and in
naturally occurring hydrocarbon mixtures prior to initial processing;
clarifying the provision for threshold determination of flammable
substances in mixtures to exempt mixtures that do not have a National
Fire Protection Association (NFPA) flammability hazard rating of 4;
modifying the definition of stationary source to clarify the exemption
of transportation and storage incident to transportation and to clarify
that naturally occurring hydrocarbon reservoirs are not stationary
sources or parts of stationary sources; and clarifying that the
chemical accident prevention provisions do not apply to sources located
on the Outer Continental Shelf (``OCS sources''). These amendments were
proposed on April 15, 1996. EPA received 37 letters commenting on the
proposal. Major comments are discussed below. Summaries of all comments
and the Agency's responses can be found in the summary and response to
comments document in the docket.
A. Explosives
EPA is amending the List Rule to delete the category of high
explosives from the list of regulated substances. Explosives were
initially listed because of their potential to cause offsite effects
from blast waves. In addition, EPA believed that there existed
potential gaps in emergency planning and response communication that
made risk management planning appropriate for sources with explosives.
In accordance with the Settlement Agreement, IME has developed and will
implement safety practices that will provide additional information and
enhance the coordination between explosives facilities and the
emergency planners and responders. As discussed in the preamble to the
proposed rule of April 15, 1996, EPA concluded that current regulations
and current and contemplated industry practices promote safety and
accident prevention in storage, handling, transportation, and use of
explosives. As a result, these regulations and practices adequately
protect the public and the environment from the hazards of accidents
involving explosives. The Agency believes these actions effectively
close the remaining gap in emergency planning and response
communications. Therefore, EPA is taking final action to delist
explosives from the list of regulated substances under section 112(r).
EPA received six comment letters on the proposal to delist
explosives. All the commenters supported EPA's proposal, citing current
regulations, current and contemplated industry practices, and the
regulatory burden imposed by listing explosives.
B. Regulated Flammable Substances in Gasoline and in Naturally
Occurring Hydrocarbon Mixtures
EPA is taking final action to provide specific exemptions from
threshold determination for regulated flammable substances in gasoline
used as fuel for internal combustion engines and for regulated
substances in naturally occurring hydrocarbon mixtures prior to initial
processing in a petroleum refining process unit or a natural gas
processing plant. These exemptions reflect EPA's original intent to
exempt flammable mixtures that do not meet the criteria for a National
Fire Protection Association (NFPA) flammability hazard rating of 4 and
clarify the regulatory status of gasoline and naturally occurring
hydrocarbon mixtures. Naturally occurring hydrocarbon mixtures would
include any or any combination of the following: natural gas
condensate, crude oil, field gas, and produced water. This rule
includes definitions of these substances as well as definitions of
natural gas processing plant and petroleum refining process unit.
EPA is making minor changes to the definitions proposed for natural
gas processing plant and petroleum refining process unit. The North
American Industrial Classification System (NAICS) code has been added
to the definition for natural gas processing plant in this final rule.
In addition, part of the proposed definition has been dropped, because
it included the term being defined and, as a result, potentially could
cause confusion. The NAICS code also has been added to the definition
of petroleum refining process unit. The proposed definition of
petroleum refining process unit included the Standard Industrial
Classification (SIC) code (which is still cited in the definition);
however, SIC codes have been replaced by NAICS codes.
EPA received 12 letters in support of the gasoline exemption. No
comments were submitted opposing this exemption. Several of the
commenters who supported the exemption also suggested broadening the
exemption to include blendstocks, natural gasolines, and other fuels.
Several suggestions were made for clarifying the gasoline exemption.
EPA does not believe the exemption should be broadened. Individual
flammable substances that do not meet the criteria for NFPA 4 for
flammability were not considered for listing as flammables in
development of the list of regulated substances. Although substances
such as blendstocks and natural gasoline are not specifically exempted,
any flammable mixtures, including blendstocks and natural gasoline,
that do not meet the criteria for an NFPA rating of 4 for flammability
are exempt from threshold determination (see Clarification of Threshold
Determination of Regulated Flammable Substances in Mixtures, discussed
below). EPA believes that substances and mixtures that meet the
criteria for NFPA 4, including blendstocks and fuels, should be covered
by the rule, regardless of their use. EPA believes such substances have
the same intrinsic hazards whether they are used as gasoline
blendstocks, as fuels, or for other purposes. EPA's analysis indicates
that risks associated with the storage and handling of flammable
substances are a function of the properties of the materials, not their
end use. EPA is
[[Page 642]]
exempting gasoline because it does not meet the NFPA 4 criteria, and
EPA believes it does not represent a significant threat to the public
of vapor cloud explosions.
EPA received 16 letters supporting the exemption of naturally
occurring hydrocarbons prior to initial processing. One commenter
suggested modifying the exemption to incorporate site-specific factors
because conditions conducive to vapor cloud explosions might exist at
some facilities with exempted flammable substances, particularly in the
case of oil and gas production facilities located adjacent to chemical
production facilities. EPA recognizes that there may be cases where a
facility may not be subject to the RMP requirements because of this
exemption, but where the potential for vapor cloud explosions may
exist. Neither Congress nor EPA intended the List Rule to capture every
substance that may pose a hazard in particular circumstances. Instead,
the statute required EPA to select the chemicals posing the greatest
risk of serious effects from accidental releases. To implement these
criteria, EPA focused primarily on chemicals that posed the most
significant hazards because site-specific factors vary too greatly to
be considered at the listing stage of regulation. EPA believes the
hazards of naturally occurring hydrocarbon mixtures prior to entry into
a natural gas processing plant or petroleum refining process unit do
not warrant regulation. The general duty clause of section 112(r)(1)
would apply when site-specific factors make an unlisted chemical
extremely hazardous. Also, the particular risk cited by the commenter
probably would be addressed by the RMP Rule even with the exemption as
promulgated today. In the case of a chemical facility located adjacent
to an oil and gas production facility, the owner or operator of the
chemical facility is likely to have processes covered due to other
regulated substances and would have to consider site-specific
conditions such as the presence of an adjacent oil and gas production
facility. Therefore, it is inappropriate to condition this exemption on
site-specific factors.
C. Clarification of Threshold Determination of Regulated Flammable
Substances in Mixtures
To clarify threshold determination for regulated flammable
substances in mixtures, EPA is taking final action to provide that, for
mixtures that have one percent or greater concentration of a regulated
flammable substance, the entire weight of the mixture shall be treated
as the regulated substance unless the owner or operator can demonstrate
that the mixture does not have an NFPA flammability hazard rating of 4,
as defined in the NFPA Standard System for the Identification of Fire
Hazards of Materials, NFPA 704-1996.
In its proposed rule, to define NFPA 4, EPA cited and proposed to
incorporate by reference NFPA 704, Standard System for the
Identification of Fire Hazards of Materials (1990 edition). For the
definition and determination of boiling point and flash point, EPA
cited and proposed to incorporate by reference NFPA 321, Standard on
the Basic Classification of Flammable and Combustible Liquids (1991
edition). In this final rule, EPA is updating these references and
incorporating by reference the 1996 edition of NFPA 704 and the 1996
edition of NFPA 30, Flammable and Combustible Liquids Code, which
replaces NFPA 321.
Nine comments were submitted supporting this clarification. No
opposing comments were submitted.
D. Definition of Stationary Source
EPA is promulgating the amendments to the definition of stationary
source that were proposed on April 15, 1996. First, EPA is clarifying
that the exemption for regulated substances in transportation, or in
storage incident to such transportation, is not limited to pipelines.
In addition, EPA is modifying the definition of stationary source to
clarify that naturally occurring hydrocarbon reservoirs are not
stationary sources or parts of stationary sources. Finally, EPA is
modifying the definition of stationary source to clarify that exempt
transportation shall include, but not be limited to, transportation
activities subject to regulation or oversight under 49 CFR parts 192,
193, or 195, as well as transportation subject to natural gas or
hazardous liquid programs for which a state has in effect a
certification under 49 U.S.C. section 60105.
EPA considers the transportation exemption to include storage
fields for natural gas where gas taken from pipelines is stored during
non-peak periods, to be returned to the pipelines when needed. Such
storage fields include, but are not limited to, depleted oil and gas
reservoirs, aquifers, mines, and caverns (e.g., salt caverns). For
purposes of this regulation, this type of storage is incident to
transportation and, therefore, is not subject to the RMP rule. The
transportation exemption also applies to liquefied natural gas (LNG)
facilities subject to oversight or regulation under 49 CFR parts 192,
193, or 195, or a state natural gas or hazardous liquid program for
which the state has in effect a certification to DOT under 49 U.S.C.
section 60105. These facilities include those used to liquefy natural
or synthetic gas or used to transfer, store, or vaporize LNG in
conjunction with pipeline transportation.
EPA believes there still may be potential for confusion regarding
the jurisdiction and regulatory responsibility of EPA and DOT for
pipelines and for transportation containers at stationary sources.
``Transportation in commerce'' is defined by DOT pursuant to Federal
Hazardous Materials Transportation Law (Federal HAZMAT Law, 49 U.S.C.
sections 5107-5127). As a result of continued questions regarding the
scope of Federal HAZMAT Law and the applicability of the regulations
issued thereunder, the DOT is currently working to better delineate and
more clearly define the applicability of its regulations. DOT currently
contemplates clarifying its jurisdiction through the rulemaking
process. As a result, there may be a future need for EPA to further
amend the definition of stationary source to better comport with DOT
clarifications or actions. The Agency will continue to work closely
with DOT to minimize confusion regarding transportation containers and
will coordinate with DOT to ensure that compatible interpretations
about regulatory coverage are provided to the regulated community.
EPA received 15 letters in support of the exemption of
transportation activities from the definition of stationary source. No
one opposed this exemption. A number of commenters, however, believed
the modifications would not eliminate overlap and confusion between EPA
and DOT rules. A number of commenters also favored exempting from the
stationary source definition transportation containers no longer under
active shipping papers and transportation containers connected to
equipment for purposes of temporary storage, loading, or unloading.
Some commenters stated that EPA would be undermining DOT's authority by
regulating activities that are under DOT jurisdiction. Four commenters
recommended exempting all containers that are suitable for
transportation.
EPA developed the transportation exemptions discussed here in
consultation with DOT. EPA's regulations do not supersede or limit
DOT's authorities and, therefore, are in compliance with CAA section
310. EPA believes these provisions are consistent with other EPA
regulations, such as the Emergency Planning and Community
[[Page 643]]
Right-to-Know Act (EPCRA) regulations under parts 355 and 370. EPA
disagrees that suitability for transportation should be the criterion
for determining whether a container should be considered part of the
stationary source. For example, EPA believes that a railroad tank car
containing a regulated substance could be considered a stationary
source or part of a stationary source, even though the tank car is
``suitable for transportation.'' Such a tank car could remain at one
location for a long period of time, serving as a storage container, and
could pose a hazard to the community. EPA considers a container to be
in transportation as long as it is attached to the motive power that
delivered it to the site (e.g., a truck or locomotive). If a container
remains attached to the motive power that delivered it to the site,
even if a facility accepts delivery, it would be in transportation, and
the contents would not be subject to threshold determination. As stated
earlier, EPA will continue to work with DOT to avoid regulatory
confusion.
EPA agrees with commenters who stated that active shipping papers
may not be a suitable criterion for determining whether a container is
in transportation. EPA is aware that shipping papers are not always
generated, nor are they required under DOT rules. Therefore, EPA has
modified the definition of stationary source to remove the reference to
active shipping papers. EPA also has modified the definition to remove
the reference to temporary storage. This reference may have been
confused with storage incident to transportation.
EPA has received questions regarding the statement in the
stationary source definition that properties shall not be considered
contiguous solely because of a railroad or gas pipeline right-of-way.
In response to these questions, EPA is clarifying this statement by
deleting the word ``gas.'' EPA always intended that neither a railroad
right-of-way nor any pipeline right-of-way should cause properties to
be considered contiguous.
E. Applicability to Outer Continental Shelf
EPA is providing an applicability exception for sources on the
outer continental shelf (OCS sources) to clarify that Part 68 does not
apply to these sources. This exception is consistent with CAA section
328, which precludes the applicability of EPA CAA rules to such sources
when such rules are not related to attaining or maintaining ambient air
quality standards or to the ``prevention of significant deterioration''
provisions of the CAA. Eleven commenters supported this exception, and
no one opposed it.
III. Summary of Revisions to the Rule
EPA is amending several sections of part 68 of title 40 of the Code
of Federal Regulations.
In Sec. 68.3, the definition of stationary source is revised. The
revised definition specifically states that naturally occurring
hydrocarbon reservoirs are not stationary sources or parts of
stationary sources. The definition states that exempt transportation
includes, but is not limited to, transportation activities subject to
oversight or regulation under 49 CFR parts 192, 193, or 195, as well as
transportation subject to natural gas or hazardous liquid programs for
which a state has in effect a certification under 49 U.S.C. section
60105. In addition, the agency has made non-substantive wording changes
to improve the clarity of this definition.
Several new definitions are added for Sec. 68.3, for condensate,
crude oil, field gas, natural gas processing plant, petroleum refining
process unit, and produced water.
Section 68.10 is amended to clarify that part 68 does not apply to
OCS sources.
Several revisions are made to Sec. 68.115 on threshold
determination. Section 68.115(b)(2) is modified to state that the
entire weight of the mixture containing a regulated flammable substance
shall be treated as the regulated substance unless the owner or
operator can demonstrate that the mixture does not have an NFPA
flammability hazard rating of 4. Another modification to
Sec. 68.115(b)(2) exempts from threshold determination regulated
flammable substances in gasoline used as fuel in internal combustion
engines. Regulated substances in naturally occurring hydrocarbon
mixtures (including condensate, crude oil, field gas, and produced
water), prior to entry into a natural gas processing plant or a
petroleum refining process unit, also are exempt from threshold
determination. Section 68.115(b)(3), on concentrations of a regulated
explosive substance in a mixture, is deleted, and Secs. 68.115(b)(4),
68.115(b)(5), and 68.115(b)(6) are redesignated as Secs. 68.115(b)(3),
68.115(b)(4), and 68.115(b)(5), respectively.
Section 68.130 is modified by the deletion of (a), explosives
listed by DOT as Division 1.1. Section 68.130(b) is redesignated as
Secs. 68.130(a), and Secs. 68.130(c) as 68.130(b).
IV. Judicial Review
Under section 307(b)(1) of the Clean Air Act (CAA), judicial review
of the actions taken by this final rule is available only on the filing
of a petition for review in the U.S. Court of Appeals for the District
of Columbia Circuit within 60 days of today's publication of this
action. Under section 307(b)(2) of the CAA, the requirements that are
subject to today's notice may not be challenged later in civil or
criminal proceedings brought by EPA to enforce these requirements.
V. Required Analyses
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must judge whether the regulatory action is ``significant,'' and
therefore subject to OMB review and the requirements of the Executive
Order. The Order defines ``significant regulatory action'' as one that
is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal government or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and,
therefore, is not subject to OMB review.
B. Regulatory Flexibility
EPA has determined that it is not necessary to prepare a regulatory
flexibility analysis in connection with this final rule. EPA has also
determined that this rule will not have a significant negative economic
impact on a substantial number of small entities. This final rule will
not have a significant negative impact on a substantial number of small
entities because it reduces the number of substances that would be used
to identify stationary sources for regulation and provides exemptions
that will reduce the number of stationary sources subject to the
accidental release prevention requirements.
[[Page 644]]
C. Paperwork Reduction
This rule does not include any information collection requirements
for OMB to review under the provisions of the Paperwork Reduction Act.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Today's rule will reduce the number of sources
subject to part 68. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA. For the same reason,
EPA has determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives, and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
F. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act (``NTTAA''), the Agency is required to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practice,
etc.) which are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires the Agency to provide
Congress, through the Office of Management and Budget, an explanation
of the reasons for not using such standards.
EPA developed its list of regulated flammable substances for this
rule based on analysis of the hazards of flammable substances conducted
in a review of the EPCRA section 302 list. As part of this analysis,
EPA identified and evaluated existing listing and classification
systems, including listing and classification systems developed for
voluntary consensus standards. This final rule incorporates, by
reference, the use of a voluntary consensus standard to identify the
chemicals which are covered according to their flammability, namely
NFPA 704, ``Standard System for the Identification of the Hazards of
Materials for Emergency Response.'' EPA identified no other potentially
applicable voluntary consensus standards.
List of Subjects in 40 CFR Part 68
Environmental protection, Chemicals, Chemical accident prevention,
Clean Air Act, Extremely hazardous substances, Hazardous substances,
Intergovernmental relations, Reporting and recordkeeping requirements.
Dated: December 18, 1997.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I,
subchapter C, part 68 of the Code of Federal Regulations is amended as
follows:
PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS
The authority citation for part 68 continues to read as follows:
Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.
Subpart A--General
2. Section 68.3 is amended by adding the following definitions in
alphabetical order and revising the definition of ``stationary source''
to read as follows:
Sec. 68.3 Definitions.
* * * * *
Condensate means hydrocarbon liquid separated from natural gas that
condenses due to changes in temperature, pressure, or both, and remains
liquid at standard conditions.
* * * * *
Crude oil means any naturally occurring, unrefined petroleum
liquid.
* * * * *
Field gas means gas extracted from a production well before the gas
enters a natural gas processing plant.
* * * * *
Natural gas processing plant (gas plant) means any processing site
engaged in the extraction of natural gas liquids from field gas,
fractionation of mixed natural gas liquids to natural gas products, or
both, classified as North American Industrial Classification System
(NAICS) code 211112 (previously Standard Industrial Classification
(SIC) code 1321).
* * * * *
Petroleum refining process unit means a process unit used in an
establishment primarily engaged in petroleum refining as defined in
NAICS code 32411 for petroleum refining (formerly SIC code 2911) and
used for the following: Producing transportation fuels (such as
gasoline, diesel fuels, and jet fuels), heating fuels (such as
kerosene, fuel gas distillate, and fuel oils), or lubricants;
Separating petroleum; or Separating, cracking, reacting, or reforming
intermediate petroleum streams. Examples of such units include, but are
not limited to, petroleum based solvent units, alkylation units,
catalytic hydrotreating, catalytic hydrorefining, catalytic
hydrocracking, catalytic reforming, catalytic cracking, crude
distillation, lube oil processing,
[[Page 645]]
hydrogen production, isomerization, polymerization, thermal processes,
and blending, sweetening, and treating processes. Petroleum refining
process units include sulfur plants.
* * * * *
Produced water means water extracted from the earth from an oil or
natural gas production well, or that is separated from oil or natural
gas after extraction.
* * * * *
Stationary source means any buildings, structures, equipment,
installations, or substance emitting stationary activities which belong
to the same industrial group, which are located on one or more
contiguous properties, which are under the control of the same person
(or persons under common control), and from which an accidental release
may occur. The term stationary source does not apply to transportation,
including storage incident to transportation, of any regulated
substance or any other extremely hazardous substance under the
provisions of this part. A stationary source includes transportation
containers used for storage not incident to transportation and
transportation containers connected to equipment at a stationary source
for loading or unloading. Transportation includes, but is not limited
to, transportation subject to oversight or regulation under 49 CFR
parts 192, 193, or 195, or a state natural gas or hazardous liquid
program for which the state has in effect a certification to DOT under
49 U.S.C. section 60105. A stationary source does not include naturally
occurring hydrocarbon reservoirs. Properties shall not be considered
contiguous solely because of a railroad or pipeline right-of-way.
* * * * *
3. Section 68.10 is amended by adding a paragraph (f) to read as
follows:
Sec. 68.10 Applicability.
* * * * *
(f) The provisions of this part shall not apply to an Outer
Continental Shelf (``OCS'') source, as defined in 40 CFR 55.2.
Subpart F--Regulated Substances for Accidental Release Prevention
4. Section 68.115 is amended by revising paragraph (b) introductory
text and paragraph (b)(2); removing paragraph (b)(3); and by
redesignating paragraphs (b)(4) through (b)(6) as (b)(3) through (b)(5)
to read as follows:
Sec. 68.115 Threshold determination.
* * * * *
(b) For the purposes of determining whether more than a threshold
quantity of a regulated substance is present at the stationary source,
the following exemptions apply:
* * * * *
(2) Concentrations of a regulated flammable substance in a mixture.
(i) General provision. If a regulated substance is present in a mixture
and the concentration of the substance is below one percent by weight
of the mixture, the mixture need not be considered when determining
whether more than a threshold quantity of the regulated substance is
present at the stationary source. Except as provided in paragraph
(b)(2) (ii) and (iii) of this section, if the concentration of the
substance is one percent or greater by weight of the mixture, then, for
purposes of determining whether a threshold quantity is present at the
stationary source, the entire weight of the mixture shall be treated as
the regulated substance unless the owner or operator can demonstrate
that the mixture itself does not have a National Fire Protection
Association flammability hazard rating of 4. The demonstration shall be
in accordance with the definition of flammability hazard rating 4 in
the NFPA 704, Standard System for the Identification of the Hazards of
Materials for Emergency Response, National Fire Protection Association,
Quincy, MA, 1996. Available from the National Fire Protection
Association, 1 Batterymarch Park, Quincy, MA 02269-9101. This
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected at the Environmental Protection Agency Air Docket
(6102), Attn: Docket No. A-96-O8, Waterside Mall, 401 M. St. SW.,
Washington D.C.; or at the Office of Federal Register at 800 North
Capitol St., NW, Suite 700, Washington, D.C. Boiling point and flash
point shall be defined and determined in accordance with NFPA 30,
Flammable and Combustible Liquids Code, National Fire Protection
Association, Quincy, MA, 1996. Available from the National Fire
Protection Association, 1 Batterymarch Park, Quincy, MA 02269-9101.
This incorporation by reference was approved by the Director of the
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
Copies may be inspected at the Environmental Protection Agency Air
Docket (6102), Attn: Docket No. A-96-O8, Waterside Mall, 401 M. St.
SW., Washington D.C.; or at the Office of Federal Register at 800 North
Capitol St., NW, Suite 700, Washington, D.C. The owner or operator
shall document the National Fire Protection Association flammability
hazard rating.
(ii) Gasoline. Regulated substances in gasoline, when in
distribution or related storage for use as fuel for internal combustion
engines, need not be considered when determining whether more than a
threshold quantity is present at a stationary source.
(iii) Naturally occurring hydrocarbon mixtures. Prior to entry into
a natural gas processing plant or a petroleum refining process unit,
regulated substances in naturally occurring hydrocarbon mixtures need
not be considered when determining whether more than a threshold
quantity is present at a stationary source. Naturally occurring
hydrocarbon mixtures include any combination of the following:
condensate, crude oil, field gas, and produced water, each as defined
in Sec. 68.3 of this part.
* * * * *
Sec. 68.130 [Amended]
5. Section 68.130 is amended by removing paragraph (a) and
redesignating paragraphs (b) and (c) as paragrpahs (a) and (b). The
tables to the section remain unchanged.
[FR Doc. 98-267 Filed 1-5-98; 8:45 am]
BILLING CODE 6560-50-P