[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]]

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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

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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