[Federal Register Volume 64, Number 103 (Friday, May 28, 1999)]
[Rules and Regulations]
[Pages 29168-29170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13539]



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_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 68



List of Regulated Substances and Thresholds for Accidental Release 
Prevention; Stay of Effectiveness for Flammable Hydrocarbon Fuels; 
Final Rule



40 CFR Part 68



List of Regulated Substances and Thresholds for Accidental Release 
Prevention; Flammable Hydrocarbon Fuel Exemption; Proposed Rule

  Federal Register / Vol. 64, No. 103 / Friday, May 28, 1999 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-6351-1]


List of Regulated Substances and Thresholds for Accidental 
Release Prevention; Stay of Effectiveness for Flammable Hydrocarbon 
Fuels

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; stay of effectiveness.

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SUMMARY: Pursuant to Clean Air Act (CAA) section 301(a)(1), 42 U.S.C. 
7601(a)(1), the Agency is providing a six-month stay of the 
effectiveness of its Risk Management Plan (RMP) rule under CAA section 
112(r) as it applies to processes containing no more than 67,000 pounds 
of certain flammable hydrocarbon fuels.
    Elsewhere in the Proposed Rules section of today's Federal 
Register, EPA is proposing an exemption that mirrors the terms of 
today's stay. This exemption would result in such processes no longer 
being subject to the Chemical Accident Prevention requirements of 40 
CFR part 68. The exemption would not apply to processes that 
manufacture the fuel, contain above a threshold quantity of another 
(non-fuel) regulated substance, or processes connected to, or co-
located with, another (non-fuel) covered process at the facility.
    This action provides a temporary stay while EPA completes 
rulemaking on the proposed exemption. While this stay is in effect, 
processes that would qualify for the proposed exemption are not subject 
to part 68. Today's stay is in addition to, and does not affect, the 
stay of the rule for propane processes recently entered by the U.S. 
Court of Appeals for the D.C. Circuit.

EFFECTIVE DATE: June 21, 1999.

FOR FURTHER INFORMATION CONTACT: John Ferris, Chemical Engineer, 
Chemical Emergency Preparedness and Prevention Office (5104), 401 M 
Street S.W., Washington, DC 20460 (202) 260-4043.

SUPPLEMENTARY INFORMATION:

I. Background and Discussion

    In Part IV of today's Federal Register, EPA is proposing amendments 
to the regulations at 40 CFR part 68, establishing a chemical accident 
prevention program under Clean Air Act section 112(r). Readers should 
refer to that notice of proposed rulemaking for a complete discussion 
of the RMP regulations and the proposed amendment.
    The proposed amendment, if promulgated, would add an exemption to 
40 CFR 68.115 for processes containing up to 67,000 pounds of a listed 
flammable hydrocarbon fuel (e.g. propane, butane, ethane, etc.), 
provided that the process does not contain another listed substance 
over a threshold quantity, is not manufacturing the fuel, and is not 
co-located or interconnected to another (non-fuel) covered process. As 
explained in the notice proposing the exemption, EPA believes that such 
processes probably do not present risks warranting application of the 
comprehensive accident prevention requirements of the RMP rule. 
However, it is unlikely that EPA will be able to take final action on 
this proposal by June 21, 1999, the date by which stationary sources 
are required to comply with the RMP rule's requirements, including 
submission of risk management plans. This action provides a stay of the 
effectiveness of the rule's requirements for processes that would be 
affected by the proposed amendments, if promulgated, until December 21, 
1999. If EPA does not promulgate the provisions of today's proposed 
rule by then, any source that has a process that would have been 
subject to the rule but for today's stay, must comply with the 
provisions of the RMP rule for the process by December 21, 1999. For 
sources that have multiple processes, only some of which are affected 
by today's stay, they must comply with the RMP rule by the June 21, 
1999 deadline for the processes not affected.
    EPA is providing this temporary stay because the Agency is 
conducting a rulemaking to determine whether the processes and sources 
affected by today's proposed rule should be subject to RMP 
requirements. EPA will need to evaluate comments on the proposed rule 
before taking final action. EPA believes that it has good cause to 
provide this temporary stay to provide a short period of time for the 
Agency to decide whether or not to promulgate today's proposed changes. 
EPA believes that requiring stationary sources to file risk management 
plans for the processes affected by today's proposal would pose an 
undue burden on these stationary sources while the Agency is deciding 
whether such reporting are necessary. EPA also believes that today's 
temporary stay will not significantly affect public health or welfare 
because, as explained in the proposal, the processes eligible for the 
stay meet criteria indicating that such processes are unlikely to pose 
a significant off-site risk. Furthermore, this temporary stay does not 
affect a source's responsibilities under CAA section 112(r)(1), the 
general duty clause.

II. Related Litigation

    Following promulgation of the RMP rule in 1996, several petitions 
for judicial review of the rule were filed, including one by the 
National Propane Gas Association (NPGA). At NPGA's request, the U.S. 
Court of Appeals for the District of Columbia Circuit recently entered 
a temporary stay of the RMP rule as it applies to propane (The Chlorine 
Institute, Inc. v. Environmental Protection Agency, 96-1279 and 
consolidated cases (Nos. 96-1284, 96-1288, and 96-1290), Order of April 
27, 1999). Until further order of the Court, the RMP rule is not in 
effect with respect to propane. Any stationary source, or process at a 
stationary source, subject to the RMP rule only by virtue of propane is 
not, until further notice, subject to the RMP rule requirements, 
including those calling for a hazard assessment, accident prevention 
program, emergency response planning, and submission of (or inclusion 
in) an RMP by June 21, 1999.
    EPA understands the Court's order granting a temporary stay as 
reaching not only propane in its pure form, but propane mixtures 
commonly sold as liquefied petroleum gas. The pleadings considered by 
the Court in entering its stay did not distinguish between pure propane 
and mixtures commonly sold as ``propane.'' Accordingly, EPA believes 
the Court's order should not be read as making such a distinction.
    It is important to note that the terms of the Court's stay are 
different in several respects from those of this temporary stay being 
issued by EPA. The Court's stay applies only to propane, while the 
temporary stay applies to all flammable hydrocarbon fuels, including 
propane. The Court's stay includes no caps or conditions; the temporary 
stay includes a cap and other conditions for eligibility. Finally, the 
Court's stay will last until further order of the Court. The temporary 
stay lasts only until December 21, 1999. If the Court lifts its stay 
before then, propane, along with the other flammable hydrocarbon fuels, 
would be exempt from the RMP rule in accordance with the terms of the 
temporary stay.

II. 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

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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. A99-
18, 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.

B. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether a 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; rather, it stays the effective date for certain 
processes affected by today's proposed rule. This action does not 
increase, nor decrease, the burden associated with 40 CFR part 68. 
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 final rule is not subject to the Executive Order because it is 
not economically significant as defined in E.O. 12866, and because the 
Agency does not have reason to believe the environmental health or 
safety risks addressed by this action present a disproportionate risk 
to children. This rule stays the effective date for certain processes 
effected by today's proposed rule. This action does not increase, nor 
decrease, the burden associated with 40 CFR part 68.

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 stays the effective 
date for certain processes affected by today's proposed rule. This 
action does not increase, nor decrease, the burden associated with 40 
CFR part 68. 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 final rule because it is 
not subject to the Regulatory Flexibility Act. EPA has also determined 
that this rule will not have a significant negative economic impact on 
small entities. This rule does not require any stationary source to 
report additional elements in the RMP; instead, this rule stays the 
effective date for certain processes effected by today's proposed rule. 
This action does not increase, nor decrease, the burden associated with 
40 CFR part 68.

G. Paperwork Reduction

    This rule does not include any information collection requirements 
for OMB to review under the provisions of the Paperwork Reduction Act. 
This rule stays the effective date for certain processes effected by 
today's proposed rule. This action does not increase, nor decrease, the 
burden associated with 40 CFR part 68.

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

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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.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. This rule stays the effective date for certain processes 
effected by today's proposed rule. This action does not increase, nor 
decrease, the burden associated with 40 CFR part 68.

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.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 808 allows the issuing agency to make a good 
cause finding that notice and public procedure is impracticable, 
unnecessary or contrary to the public interest. This determination must 
be supported by a brief statement. 5 U.S.C. 808(2). As stated 
previously, EPA has made such a good cause finding, including the 
reasons therefor, and established an effective date of June 21, 1999. 
EPA will submit 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 United States prior to publication of 
the rule in the Federal Register. This action is not a major rule as 
defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 68

    Environmental protection, Chemicals, Chemical accident prevention.

    Dated: May 21, 1999.
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 to 
read as follows:

PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS

    1. The authority citation for part 68 continues to read as follows:

    Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.

    2. Section 68.2 is amended by adding paragraph (c) to read as 
follows:


Sec. 68.2  Stayed provisions.

* * * * *
    (c) Notwithstanding any other provision of this part, the 
effectiveness of part 68 is stayed from June 21, 1999 to December 21, 
1999 with respect to regulated flammable hydrocarbon substances when 
the substance is intended for use as a fuel and does not exceed 67,000 
pounds in a process that is not manufacturing the fuel, does not 
contain greater than a threshold quantity of another regulated 
substance, and is not collocated or interconnected to another covered 
process.

[FR Doc. 99-13539 Filed 5-27-99; 8:45 am]
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