[Federal Register Volume 64, Number 101 (Wednesday, May 26, 1999)]
[Proposed Rules]
[Pages 28702-28704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12937]



  Federal Register / Vol. 64, No. 101 / Wednesday, May 26, 1999 / 
Proposed Rules  

[[Page 28702]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-6348-1]


Accidental Release Prevention Requirements: Risk Management 
Programs Under Clean Air Act Section 112(r)(7); Amendments to the 
Worst-Case Release Scenario Analysis for Flammable Substances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is planning to amend the Chemical Accident Prevention 
Provisions, codified in 40 CFR part 68. The revisions concern the 
worst-case release scenario analysis for regulated flammable 
substances, 40 CFR 68.25. These revisions would allow the regulated 
community to treat regulated flammable substances in the same manner as 
regulated toxic substances for determining the quantity released when 
conducting a worst-case release scenario.
    Elsewhere in the Final Rule section of today's Federal Register, 
EPA is issuing these revisions as a direct final rule. EPA views this 
as a noncontroversial revision and anticipates no adverse comment. A 
detailed rationale for this revision is in the preamble to the direct 
final rule. If no relevant adverse comments are received in response to 
this proposed rule, no further action is needed on this notice. If EPA 
receives relevant adverse comments, EPA will withdraw the direct final 
rule and it will not take effect. EPA will address public comments in a 
subsequent final rule based on this proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time. This action 
implements a settlement agreement between EPA and the American 
Petroleum Institute.
    As a result of a settlement agreement with the Chlorine Institute, 
EPA is clarifying its interpretation of Clean Air Act sections 112(l) 
and 112(r)(11), as they relate to Department of Transportation 
requirements under the Federal Hazardous Materials Transportation Law.

DATES: Comments. Comments on the regulations proposed by this action 
must be received by June 16, 1999, unless a hearing is requested by 
June 1, 1999. If a hearing is requested, written comments must be 
received by July 1, 1999.

ADDRESSES: Comments. All written comments must be identified with the 
appropriate docket number (Docket No. A-99-15) and must be submitted to 
EPA Air Docket, Waterside Mall, Room M1500, 401 M Street, SW, 
Washington, D.C., 20460, telephone 202-260-7548.
    Public Hearing. Persons interested in presenting oral testimony or 
inquiring as to whether a hearing is to be held should notify the 
person(s) listed in FOR FURTHER INFORMATION CONTACT section.
    Docket. Docket No. A-99-15, containing supporting information used 
to develop the proposal, is available for public inspection and copying 
from 8:00 a.m. to 5:30 p.m., Monday through Friday, excluding Federal 
holidays at EPA's Air Docket at the above address.

FOR FURTHER INFORMATION CONTACT: Sicy Jacob or John Ferris, Chemical 
Emergency Preparedness and Prevention Office, Environmental Protection 
Agency (5104), 401 M Street SW, Washington, D.C., 20460, (202) 260-7249 
or (202) 260-4043, respectively; or the Emergency Planning and 
Community Right-to-Know Hotline at 800-424-9346 (in the Washington, DC 
metropolitan area, (703) 412-9810). You may wish to visit the Chemical 
Emergency Preparedness and Prevention Office (CEPPO) Internet site, at 
www.epa.gov/ceppo.

SUPPLEMENTARY INFORMATION: In this document, EPA is proposing 
amendments to the regulations in 40 CFR part 68 for the accident 
prevention provisions under Clean Air Act section 112 (r), 
specifically, Sec. 68.25(e), worst-case scenario analysis for 
flammables. The rule revisions are presented and discussed in detail in 
a direct final rule published in the Final Rules section of this 
Federal Register.
    The chemical accident prevention provisions, also known as the risk 
management program regulations (``RMP rule'') were promulgated on June 
20, 1996 (61 FR 31668). Stationary sources subject to the RMP rule are 
required to submit a risk management plan on their hazard assessment 
including off-site consequences, accident history, the prevention 
program and the emergency response program, to EPA by June 21, 1999. 
Among other requirements, the RMP rule requires covered stationary 
sources to analyze at least one worst-case release scenario for 
regulated flammables and at least one for regulated toxic substances 
that are present in a process at the stationary source above the 
threshold quantity.
    In the final rule issued on June 20, 1996, Sec. 68.25(e) states 
that when conducting a worst-case scenario analysis for flammables, the 
owner or operator shall assume that the quantity of the substance, as 
determined under paragraph (b) of Sec. 68.25, vaporizes, resulting in a 
vapor cloud explosion. This approach applies to all listed flammable 
substances regardless of whether the flammable substance is normally a 
liquid or liquefied by refrigeration. In litigation filed by the 
American Petroleum Institute (API), API suggested that flammable 
liquids and those liquified by refrigeration should be treated, for 
modeling purposes, in the same manner as for toxic liquids or those 
liquified by refrigeration, as stated in Sec. 68.25 (c) and (d). EPA 
agreed that flammable liquids (including those liquified by 
refrigeration) could be appropriately treated in that manner. EPA is 
thus proposing these changes to Sec. 68.25.
    The proposed revisions would allow stationary sources to model 
releases of flammable substances in the same manner as toxics. EPA is 
seeking comment on these proposed revisions. EPA considers these 
revisions to be noncontroversial and anticipates no adverse comments. 
If EPA timely receives significant, adverse comments, EPA will publish 
a document in the Federal Register withdrawing the direct final rule. 
In that event, all public comments received will be treated as comments 
on this proposed rule and will be addressed in a subsequent final 
rulemaking document. EPA will not institute a second comment period on 
this document. Any parties interested in commenting on these revisions 
should do so at this time.

I. Administrative Requirements

A. Docket

    The docket is an organized and complete file of all the information 
considered by the EPA in the development of this rulemaking. The docket 
is a dynamic file, because it allows members of the public and 
industries involved to readily identify and locate documents so that 
they can effectively participate in the rulemaking process. Along with 
the proposed and promulgated rules and their preambles, the contents of 
the docket serve as the record in the case of judicial review. (See 
section 307(d)(7)(A) of the CAA.)
    The official record for this rulemaking, as well as the public 
version, has been established for this rulemaking under Docket No. A-
99-15, and is available for inspection from 8:00 a.m. to 5:30 p.m., 
Monday through Friday, excluding legal holidays. The official 
rulemaking record is located at the address in ADDRESSES at the 
beginning of this document.

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B. Executive Order 12866

    Under Executive Order 12866, (58 Federal Register 51,735 (October 
4, 1993)) the Agency must determine 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 
governments 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 today's action is not a ``significant 
regulatory action'' under the terms of E.O. 12866 and is, therefore, 
not subject to OMB review.

C. Executive Order 12875

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a State, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments, or EPA consults with those governments.
    If EPA complies by consulting, Executive Order 12875 requires EPA 
to provide to the Office of Management and Budget a description of the 
extent of EPA's prior consultation with representatives of affected 
State, local and tribal governments, the nature of their concerns, any 
written communications from the governments, and a statement supporting 
the need to issue the regulation.
    In addition, Executive Order 12875 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of State, local and tribal governments ``to provide 
meaningful and timely input in the development of regulatory proposals 
containing significant unfunded mandates.''
    Today's rule does not create a mandate on State, local or tribal 
governments. This rule change does not impose any enforceable duties on 
these entities. Instead, it merely provides an alternative approach for 
calculating the quantity released in the worst-case scenario. 
Stationary sources already subject to the rule may use this approach 
for conducting worst-case release scenarios for flammable substances in 
the same manner as toxic substances. Accordingly, the requirements of 
section 1(a) of Executive Order 12875 do not apply to this rule.

D. Executive Order 13045

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under E.O. 12866, and (2) concerns an environmental health 
or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This action is not subject to the E.O. 13045 because it is not 
``economically significant'' as defined in E.O. 12866, and because it 
does not involve decisions based on environmental health or safety 
risks.

E. Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments.
    If EPA complies by consulting, Executive Order 13084 requires EPA 
to provide to the Office of Management and Budget, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 13084 requires EPA to develop an effective process 
permitting elected officials and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments. This rule change merely 
provides an alternative approach for calculating the quantity released 
in the worst-case scenario. Stationary sources already subject to the 
rule may use this approach for conducting worst-case release scenarios 
for flammable substances in the same manner as toxic substances. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

F. Regulatory Flexibility

    EPA has determined that it is not necessary to prepare a regulatory 
flexibility analysis in connection with this proposed rule and that 
this rule will not have a significant negative economic impact on small 
entities. This rule change does not require any stationary source to 
report additional elements in the risk management plan. It merely 
provides an alternative approach for stationary sources already subject 
to the rule to use for conducting worst-case release scenarios for 
flammable substances. Therefore, I certify that this action will not 
have a significant economic impact on a substantial number of small 
entities.

G. Paperwork Reduction

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and 
has assigned OMB control number 2050-0144.
    This rule does not include any new information collection, 
requirements for OMB review under the provisions of the Paperwork 
Reduction Act. This revision of the rule does not impose any new 
reporting, recordkeeping, or third party reporting requirements on 
stationary sources, it merely provides an alternative approach for 
sources to calculate the quantity released in the worst-case scenario 
for flammables. The Office of Management and Budget (OMB) has approved 
the information collection requirements contained in this rule under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. 
and has assigned OMB control number 2050-0144.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop,

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acquire, install, and utilize technology and systems for the purposes 
of collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. EPA is 
amending the table in 40 CFR part 9 of currently approved ICR control 
numbers issued by OMB for various regulations to list the information 
requirements contained in this final rule.

H. 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 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 action is not subject to the 
requirements of sections 202 and 205 of the Unfunded Mandates Act.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for state, local, or tribal 
governments or the private sector. This rule change does not require 
any stationary sources to report additional elements in the risk 
management plan. It merely provides an alternative approach for 
stationary sources already subject to the rule to use for conducting 
worst-case release scenarios for flammable substances.
    In addition, for the same reasons, EPA has determined that this 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note), directs EPA 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 practices) that are developed or adopted 
by voluntary consensus standards bodies. The NTTAA requires EPA to 
provide Congress, through OMB, explanations when the Agency decides not 
to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 68

    Environmental protection, Chemicals, Chemical accident prevention.

    Dated: May 17, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-12937 Filed 5-24-99; 10:57 am]
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