[Federal Register Volume 64, Number 103 (Friday, May 28, 1999)]
[Proposed Rules]
[Pages 29171-29179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13540]



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

[[Page 29171]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-6350-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
modify the rule listing regulated substances and threshold quantities 
for the Risk Management Program (RMP) issued under section 112(r) of 
the Clean Air Act as amended. EPA is proposing that a process 
containing 67,000 pounds or less of a listed flammable hydrocarbon 
fuel, and no other listed substance above its threshold quantity, be 
exempt from threshold quantity determination. The exemption will not 
apply to processes that manufacture the fuel, contain more than a 
threshold quantity of another (non-fuel) regulated substance, or 
processes connected to, or collocated with, another covered process at 
the facility. EPA believes this proposed change will exempt from RMP 
coverage numerous small fuel users (e.g., farms, restaurants, hotels, 
etc.) that were not intended to be subject to the RMP requirements and 
better focus accident prevention activities on stationary source 
operations that present a greater risk to the community.

DATES: Comments. Comments must be submitted on or before June 28, 1999 
unless a hearing is requested by June 2, 1999. If a hearing is 
requested, written comments must be received by July 12, 1999.
    Public Hearing. Anyone requesting a public hearing must contact EPA 
no later than June 2, 1999. If a hearing is held, it will take place on 
June 14, 1999 at 9:30 am, at the location indicated below.

ADDRESSES: Comments. Comments should be mailed or submitted to: 
Environmental Protection Agency, Air Docket (6102), Attn: Docket No. A-
99-18, Waterside Mall, 401 M St. SW, Washington, DC 20460. Comments 
must be submitted in duplicate. Comments may be submitted on disk in 
WordPerfect or Word formats. If a public hearing is held, written 
testimony should be submitted in duplicate at the time of the hearing.
    Public Hearing. If a public hearing is held, it will be held at 
Waterside Mall, 401 M St. SW, Washington, DC 20460, in the Conference 
Center in a room to be designated. Persons interested in attending the 
hearing or wishing to present oral testimony should notify by telephone 
James Belke (see FOR FURTHER INFORMATION CONTACT).
    Docket. The docket for this rulemaking is A-99-18. This proposed 
rule would amend a final rule, the docket for which is A-91-74. The 
docket may be inspected between 8:00 am and 5:30 pm, 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: James Belke, Chemical Engineer, 
Chemical Emergency Preparedness and Prevention Office, Environmental 
Protection Agency, 401 M St. SW (5104), Washington, DC 20460, (202) 
260-7314.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background
    A. Statutory Authority
    B. Background
    C. Summary of the List Rule
    D. Related Litigation
II. Discussion of Proposed Modifications and Alternatives
    A. Characteristics of Fuel Use that Reduce the Likelihood of 
Accidental Release
    B. Characteristics of Fuel Use that Reduce the Likelihood of 
Severe Offsite Consequences
    C. Alternative Approaches
    D. Other Issues
III. Summary of Proposed Revisions to the Rule
IV. Administrative Requirements
    A. Docket
    B. Public Hearing and Written Comments
    C. Executive Order 12866
    D. Executive Order 12875
    E. Executive Order 13045
    F. Executive Order 13084
    G. Regulatory Flexibility
    H. Paperwork Reduction
    I. Unfunded Mandates Reform Act
    J. National Technology Transfer and Advancement Act

I. Introduction and Background

A. Statutory Authority

    This notice of proposed rulemaking (NPRM) is being issued under 
sections 112(r) and 301 of the Clean Air Act (CAA or Act) as amended 
(42 U.S.C. 7412(r) and 7601).

B. Background

    CAA section 112(r) contains requirements related to the prevention 
and mitigation of accidental chemical releases. The accidental release 
provisions focus on those chemicals and operations that pose the 
greatest risk to public health and the environment in the event of an 
accidental release. The CAA requires EPA to issue 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 Act identifies 16 substances to be included in the 
initial list, and specifies the factors to be considered in listing 
other substances, including (1) the severity of acute adverse health 
effects associated with accidental releases of the substance, (2) the 
likelihood of accidental releases of the substance, and (3) the 
potential magnitude of human exposure to accidental releases of the 
substance. The CAA also requires EPA to establish a threshold quantity 
for each chemical at the time of listing. In developing these 
thresholds, the factors to be considered include toxicity, reactivity, 
volatility, dispersibility, combustibility, or flammability of the 
substance, and the amount of the substance which is known to cause or 
can be reasonably anticipated to cause death, injury, or serious 
adverse effects in case of a release. Stationary sources that have more 
than a threshold quantity of a regulated substance are subject to 
accident prevention regulations issued under CAA section 112(r)(7), 
including the requirement to develop a risk management program.
    EPA issued the rule listing substances and thresholds on January 
31, 1994 (59 FR 4478) (the ``List Rule''). The List Rule was modified 
on August 25, 1997 (62 FR 45129) and again on January 6, 1998 (63 FR 
639). EPA sought comment on a proposed accident prevention (``risk 
management program'' or ``RMP'') rule in two notices and promulgated a 
final rule on June 20, 1996. (See 58 FR 54190, October 20, 1993; 60 FR 
13526, March 13, 1995 and 61 FR 31668, June 20, 1996.) EPA proposed 
modifications to the risk management program rule on April 17, 1998 (63 
FR 19216) and finalized these amendments on January 6, 1999 (64 FR 
964). For additional information on the requirements of section 112(r) 
and related statutory provisions, see these notices.

C. Summary of the List Rule

    In the final List Rule published on January 31, 1994, EPA 
promulgated a list that includes 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 first modified the list on

[[Page 29172]]

August 25, 1997 (62 FR 45129) by de-listing hydrochloric acid solutions 
with less than 37% concentrations of hydrogen chloride. EPA further 
modified the list on January 6, 1998 (63 FR 639) by deleting the 
category of Division 1.1 explosives, exempting from threshold quantity 
determination regulated substances in gasoline used as fuel and in 
naturally occurring hydrocarbon mixtures prior to processing, and 
clarifying the determination of threshold quantity of flammable 
substance in a mixture.
    The List Rule establishes threshold quantities for toxic substances 
ranging from 500 to 20,000 pounds. For all listed flammable substances, 
the threshold quantity is 10,000 pounds. The rule sets forth the 
procedures for determining whether a threshold quantity of a regulated 
substance is present at a stationary source in a process. Specific 
exemptions from the threshold determination are also included for 
mixtures, articles, and certain uses and activities. The rule also 
outlines the requirements for petitions to the Agency to add substances 
to, or delete substances from, the list.
    In developing the list, EPA selected commercially produced acutely 
toxic and volatile substances mostly from the list of extremely 
hazardous substances (EHSs) under section 302 of the Emergency Planning 
and Community Right-to-Know Act of 1986 (EPCRA). EPA chose volatile 
substances because they are more likely to become airborne and impact 
the public. EPA also considered accident history associated with a 
substance. One substance, oleum, was listed because it has a history of 
accidents that have impacted the public. Because vapor cloud explosions 
have caused injuries to the public and damage to the environment, EPA 
also included highly flammable gases and liquids on the list.
    At the time the List Rule was promulgated, EPA published a 
supplemental notice seeking comment on a proposal to exempt flammable 
substances from the 10,000-pound threshold determination when used 
solely for facility consumption as fuel (see 59 FR 4500, January 31, 
1994). EPA sought additional public comment on the hazards associated 
with listed flammable substances used as fuel and the appropriateness 
of the proposed exemption. Based on available information and the 
comments received, EPA decided not to exempt from the threshold 
quantity determination flammable substances when used as fuel. This 
decision was described in the final Risk Management Program rule 
promulgated on June 20, 1996 (61 FR 31668).

D. Related Litigation

    Several legal challenges were brought to the RMP rule, 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 the exemption being 
proposed today. The Court's stay applies only to propane, while today's 
exemption would apply to all flammable hydrocarbon fuels, including 
propane. The Court's stay includes no upper quantity limit or 
conditions; today's exemption as proposed includes an upper quantity 
limit and other conditions for eligibility. Finally, the Court's stay 
will last until further order of the Court. The proposed exemption, if 
made final, will be permanent. If the Court lifts its stay at some 
point in the future, propane, along with the other flammable 
hydrocarbon fuels, would be exempt from the RMP rule in accordance with 
the terms of the exemption, unless the exemption is not finalized.

II. Discussion of Proposed Modifications and Alternatives

    After promulgating the List and RMP rules, EPA became aware that a 
significant number of small, commercial sources use regulated flammable 
substances, particularly propane, as fuel (e.g., for heating, drying, 
powering motor vehicles, etc.) in quantities that exceed the applicable 
threshold quantity (10,000 pounds in a process). As a result, these 
small sources, including farms, restaurants, hotels, and other 
commercial operations are covered by the RMP requirements. Many of 
these sources are in rural locations where other fuel sources (e.g., 
natural gas) are not available or economical.
    The Agency has reexamined whether such sources should be covered by 
the RMP rule given the relatively small and better known risk they 
present to their surroundings. As explained in more detail below, EPA 
believes that fuel use generally does not warrant the detailed 
prevention program required by the RMP regulation. However, EPA 
believes that fuel held in large enough quantities still poses a level 
of risk which warrants a detailed prevention program (including the 
submission of a risk management plan). While, as EPA previously 
concluded in the List rule, listed fuels are extremely hazardous and 
warrant continued listing, the Agency is proposing to exempt processes 
containing these substances from the RMP requirements when stored in 
quantities not exceeding 67,000 pounds in a process, because of the 
decreased risk associated with fuel use.
    As noted above, EPA had previously proposed a fuel use exemption, 
but subsequently decided against it. In considering the original 
exemption proposal, EPA focused primarily on the inherent hazards of 
the listed substances when used as fuel. EPA sought but could not 
locate, and did not receive from commenters, data or information which 
indicated that the inherently hazardous characteristics of a flammable 
substance (e.g., flammability, combustibility, volatility, etc.) were 
any different when that substance was used for fuel. EPA noted that 
differences in handling and use as well as application of industry 
safety standards could affect the risk of an accident, but stated that 
covered sources could take these and other relevant factors into 
account in developing their risk management programs. Viewed from this 
perspective, EPA found no basis for granting an exemption.
    However, EPA did not fully realize the extent to which listed fuels 
(particularly propane) are used over threshold quantities in simple 
processes for heating or drying, mostly in open or rural settings. 
Concerns raised after the RMP rule was issued led EPA to further 
investigate the nature and number of sources subject to the rule by 
virtue of their use of fuel in simple processes.

[[Page 29173]]

The Agency had originally projected that, for example, no more than 
approximately 300 farms would be subject to the rule, but has since 
estimated that approximately 5,300 such sources are subject to RMP 
requirements (see section IV.H of this preamble). In light of the 
purpose of section 112(r)--to focus comprehensive accident prevention 
requirements on the most potentially dangerous sources--EPA believes 
that farms and other small fuel users may not warrant federal RMP 
regulation and that it is appropriate to reconsider this issue.
    EPA now believes that relatively small amounts of listed flammable 
substances (including amounts in excess of 10,000 pounds), when used as 
fuel, generally do not present sufficient threat to the offsite public 
to warrant regulation under the RMP program, provided certain 
conditions are met as described below. EPA has considerable accident 
data on propane that shows that while accidental releases of small 
quantities of listed fuel substances certainly can and sometimes do 
result in significant on-site property damage and/or injuries to 
workers, they usually do not cause significant offsite impacts. 
Further, local fire departments are generally well aware of the 
location and hazards associated with flammable fuels and are equipped 
to effectively respond to and mitigate emergencies.
    EPA is therefore proposing to exempt certain quantities of listed 
flammable hydrocarbons when used as fuel from RMP requirements because 
the Agency believes this will better focus accident prevention efforts 
on those stationary sources with high hazard operations. Today's 
proposal notwithstanding, owners and operators of facilities where 
exempt fuels are handled still have a general duty under section 
112(r)(1) of the CAA to understand the hazards of their chemicals and 
processes, design, maintain, and operate a safe facility, and take 
steps to mitigate the consequences of accidents that do occur.
    There are several characteristics associated with listed flammable 
hydrocarbons when used as fuel which reduce its potential for 
catastrophic impacts on the public or environment surrounding its 
location. Among these, EPA believes that no single characteristic is 
sufficient to justify an exemption for regulated fuels. However, when 
taken together, they reduce the risk of regulated fuels enough to 
justify the proposed exemption. These characteristics generally fall 
into two categories: characteristics that reduce the likelihood of 
accidental release, and characteristics that reduce the likelihood that 
a release will result in severe offsite consequences, particularly 
vapor cloud explosions. As EPA explained in the List Rule, the Agency 
selected flammable substances and their threshold quantity based on 
their potential to cause vapor cloud explosions, which generate blast 
overpressures that travel much farther from the source than the radiant 
heat of fires, thus making offsite consequences more likely.

A. Characteristics of Fuel Use That Reduce the Likelihood of Accidental 
Release

    Taken together, processes that are relatively simple, involve 
little manipulation and handling, are covered by other state or federal 
regulations, and are separate from other RMP covered processes are 
generally less likely to undergo a significant accidental release that 
can harm the public or environment. Fuel-use processes generally have 
these characteristics, as further explained below.
1. Simple Process
    EPA believes that simple processes are generally less likely to 
suffer accidental releases than complex processes. When compared to the 
many different types of industrial chemical manufacturing operations at 
sources covered by the RMP rule, most fuel processes at commercial 
locations are relatively simple to operate and maintain. The majority 
of fuel uses of listed flammable hydrocarbons are for comfort heating, 
space heating, or drying. Typical process configurations involve 
minimal amounts of equipment (e.g., fuel storage tanks, transfer 
piping, and fuel burners), and instrumentation and process controls 
generally are few (perhaps only a thermostat). Complex or exotic 
equipment is generally not present, startups and shutdowns are usually 
easy to perform (many homeowners perform similar operations with no 
special training), and operations are often fairly routine. However, 
since fuel processes related to fuel manufacturing may be quite 
complex, EPA proposes not to extend the fuel exemption to processes 
associated with the manufacture of regulated fuel substances.
2. Little Manipulation and Handling
    EPA believes that processes involving little hazardous chemical 
handling, manipulation, and transfer are generally less prone to 
accidental releases than processes which involve frequent handling, 
manipulation, and transfer. Fuel-use processes typically do not involve 
a lot of manipulation and handling of regulated flammable substances. 
In most heating fuel processes, fuel storage tanks are filled 
infrequently (e.g., at monthly or longer intervals). Once a fuel 
storage tank is filled, fuel substances generally do not undergo 
numerous changes of state, and processes do not require frequent 
valving, piping connections and disconnections, or substance transfers 
into or out of the process. And as discussed above, fuel-use process 
operations are typically routine, with few start-ups and shut-downs. 
Although today's proposed exemption contains no explicit criterion 
which limits the exemption to processes involving little manipulation 
and handling, and therefore the exemption could be applied to sources 
(i.e., fuel retailers and distributors) which may not have this 
characteristic, EPA believes that another explicit criterion for 
today's exemption (i.e., 67,000 pound upper quantity limit) effectively 
prevents it from being applied to such sources.
3. Regulated Under State Law
    EPA has estimated that the vast majority of fuel-use processes 
covered by the RMP rule consist of liquefied petroleum gas (principally 
propane) processes. To a lesser extent, covered fuel-use processes 
consist of liquefied or gaseous natural gas (methane) processes. The 
National Fire Protection Association (NFPA) has developed consensus 
standards for the design, construction, installation, and operation of 
liquefied petroleum gas and liquefied natural gas systems (i.e., NFPA 
58 LP-Gas Code, NFPA 59 Standard for the Storage and Handling of 
Liquefied Petroleum Gases at Utility Gas Plants, and NFPA 59A, Standard 
for the Production, Storage, and Handling of Liquefied Natural Gas 
(LNG)), and these standards apply to most fuel processes covered by the 
RMP rule. NFPA Standard 58, the standard applicable to most propane 
processes covered by the RMP rule, has been incorporated (or 
substantially equivalent requirements have been incorporated) into 
regulations in all 50 U.S. states. Although to EPA's knowledge no 
existing industry standard or state regulation duplicates all of the 
hazard assessment, accident prevention, emergency response, and 
information submission requirements of the RMP rule, these standards 
and regulations do contain some requirements which are either identical 
or generally consistent with certain RMP requirements. EPA therefore 
believes that implementation of safety practices required by these NFPA 
standards and state laws, as applicable, helps to reduce the likelihood 
of accidental releases at fuel-use processes.

[[Page 29174]]

4. Not Near or Combined With Other Regulated Substances or Processes
    At the majority of sources eligible for the proposed fuel 
exemption, the process where the listed flammable substance is used as 
a fuel is the only covered process at the site and involves no other 
listed substances. It thus cannot be impacted by any other covered 
process in a way that could lead to an accidental release. And an 
accidental release involving the fuel process would not cause the 
release of another hazardous substance.
    However, some facilities may have multiple processes or 
interconnected operations that use other listed flammable or toxic 
substances along with a listed flammable hydrocarbon used as fuel. For 
example, a process heater that uses a listed flammable hydrocarbon 
substance as fuel in a chemical reaction system handling other RMP 
listed substances could be adversely affected by a process upset or 
emergency, leading to a catastrophic fuel release. Conversely, an 
accident involving the fuel could lead to the secondary release of 
another substance, with offsite effects potentially equal to or greater 
than those resulting from release of the fuel itself. To ensure that 
today's proposed exemption is not inappropriately applied to processes 
where other regulated substance processes could be involved in an 
accidental fuel release, EPA proposes not to extend the fuel exemption 
to cases where the process containing the listed flammable hydrocarbon 
fuel contains another regulated substance, or is interconnected or 
collocated with another RMP-covered process.

B. Characteristics of Fuel Use That Reduce the Likelihood of Severe 
Offsite Consequences

    Taken together, there are certain characteristics of the listed 
flammable hydrocarbons when used as a fuel that serve to reduce the 
likelihood of offsite consequences, particularly vapor cloud 
explosions, should an accidental release of the fuel occur. Some of 
these characteristics also reduce the magnitude of a vapor cloud 
explosion, should one occur. Specifically, fuel-use processes are 
typically in a less congested environment, involve small quantities of 
regulated substances, and use odorants as a means of rapid release 
detection.
1. Less Congested Environment
    EPA's primary concern in listing flammable substances was the 
possibility that accidental releases of these substances could result 
in vapor cloud explosions. As noted earlier, vapor cloud explosions 
generate blast overpressures that travel much further from the source 
of the explosion than the radiant heat generated by a large fire. Other 
types of flammable substance accidents, such as boiling liquid 
expanding vapor explosions (BLEVEs), can also result in severe offsite 
consequences, but primarily when very large quantities are involved. A 
vapor cloud explosion of the same quantity involved in a BLEVE 
generates a far greater impact distance and could potentially affect a 
larger number of people.
    While vapor cloud explosions are infrequent events in general, 
experimental studies and accident investigations have shown that the 
likelihood and force of a vapor cloud explosion increase dramatically 
if flammable vapor is released into a highly congested environment 
(i.e., containing numerous obstacles, parallel-plane surfaces, and 
other obstructions). The presence of congestion in the volume occupied 
by a combusting vapor cloud creates turbulence in the vapor cloud, and 
turbulence is a necessary condition for blast overpressure to be 
generated in a combusting vapor cloud (factors other than physical 
congestion can also result in blast-generative turbulence, but 
congestion is generally the most common factor). Furthermore, greater 
turbulence (which can be caused by more and denser congestion) can 
dramatically increase the force of an explosion. Vapor clouds that 
ignite without turbulence generally burn, resulting in a flash fire or 
fireball, but do not explode.
    The influence of congestion in the dynamics of vapor cloud 
explosions causes certain sources to be more susceptible to vapor cloud 
explosions than others. Sources such as petroleum refineries are often 
highly congested and therefore may present conditions conducive to a 
vapor cloud explosion should an accidental flammable vapor release 
occur. Small fuel-use sources, on the other hand, are generally not 
highly congested. Consequently, accidental releases from fuel-use 
processes are not as likely to result in vapor cloud explosions. 
Furthermore, if an accidental release at a fuel-use source does result 
in a vapor cloud explosion, the explosion is likely to be less powerful 
than that resulting from a similar release at a refinery or 
petrochemical plant.
2. Small Quantities
    Studies have shown that small hydrocarbon vapor clouds, even if 
they ignite, are not likely to explode. The probability of a vapor 
cloud explosion increases with the size of the vapor cloud. The great 
majority of fuel-use processes contain relatively small quantities of 
regulated fuels. Typical fuel-use situations involve 500- or 1000-
gallon propane tanks, either individually or in multiple tank 
configurations. For this reason, the potential size of an accidental 
release from a fuel-use process, even a release consisting of the 
entire quantity of the process, is generally likely to be relatively 
small in relation to the amount of fuel necessary to generate a large 
vapor cloud.
    When establishing the threshold quantity for listed flammable 
substances, EPA was aware that certain sources were more susceptible to 
vapor cloud explosions than others, and the Agency therefore used 
conservative modeling assumptions in setting that threshold. These 
assumptions were necessary in order to accommodate the full range of 
covered sources, including sources such as petroleum refineries where 
large quantities of regulated flammable substances may be held in 
environments and under conditions conducive to vapor cloud explosions. 
However, EPA believes, for reasons stated above, that these assumptions 
are overly conservative for most fuel use situations. EPA believes that 
a fuel-use source can store significantly more than 10,000 pounds of 
fuel in a process without the threat of significant offsite impacts 
from accidental releases.
    Historically, flammable substance accidents with significant 
offsite impacts have involved either vapor cloud explosions at 
refineries and chemical plants, or BLEVE's at sources storing large 
quantities of flammable substances. In terms of loss of life, perhaps 
the most severe flammable substance accident ever at a stationary 
source occurred at an LP-gas terminal in Mexico City where nearly 4 
million gallons of liquefied petroleum gas were stored. The accident 
involved the BLEVE or rupture of 48 large LP-gas storage containers, 
and reportedly resulted in more than 600 fatalities, most of whom were 
members of the offsite public. Other accidents with offsite impacts 
have occurred at fuel distribution sources in the United States and 
other countries where quantities of fuel much smaller than the quantity 
involved in the Mexico City accident were stored. In view of the large 
amount of fuel stored at fuel distribution facilities, as well as the 
frequent handling and transfer involved in fuel distribution, EPA 
believes that these facilities generally pose a significant risk of 
offsite consequences.

[[Page 29175]]

    EPA proposes to establish the upper limit for the fuel exemption at 
67,000 pounds, which is approximately the maximum amount, expressed in 
pounds, of liquefied petroleum gas normally stored in a standard 18,000 
gallon propane tank (i.e., according to NFPA Standard 58, an 18,000 
gallon propane tank may be filled to a maximum of 88% of nominal water 
capacity at 60 deg.F). This proposed upper limit on the fuel exemption 
acknowledges the fact that even in environments not conducive to vapor 
cloud explosions, such events can still occur if a sufficient quantity 
of flammable vapor is released.
    EPA derived this number in two steps. First, EPA used blast 
modeling methods to determine the amount of fuel necessary to result in 
a vapor cloud explosion that could cause potentially lethal effects on 
people from the indirect effects of an explosion at a distance of 100 
meters from the source. In performing this analysis, EPA used TNT-
equivalent and multi-energy blast modeling approaches. For TNT-
equivalent modeling, EPA evaluated values for blast yield factor and 
flash fraction that the Agency considers to be representative of 
typical fuel-use situations. EPA evaluated blast yield factors ranging 
from one to three percent and determined flash fraction on the basis of 
actual thermodynamic data. The Agency also reviewed case studies 
relevant to the proposed exemption. Next, since the majority of fuel-
use processes covered under the RMP rule contain propane, EPA reviewed 
the sizes of widely-used propane tanks, and set the proposed exemption 
limit to coincide with the tank size which best represented the range 
of quantities derived using blast modeling. Additional technical 
background information and calculations used to derive the proposed 
exemption limit are available for review at the docket for this 
rulemaking (see ADDRESSES).
    EPA believes that 67,000 pounds represents a reasonable upper limit 
for the exemption, and believes that this limit is consistent with 
accident history, which indicates that flammable substance accidents 
with the most serious offsite impacts generally have occurred at 
sources storing large quantities of flammable substances for 
manufacturing, distribution or resale. The 67,000 pound upper quantity 
limit should also distinguish between fuel users and distributors. As 
noted earlier, fuel distribution involves very frequent transfer and 
handling that make accidental releases more likely. Based on available 
information, EPA believes that a 67,000 pound upper quantity limit 
would exclude the vast majority of fuel distributors from eligibility 
for the proposed exemption. EPA requests comment on this approach, the 
proposed upper quantity limit for the exemption, related accident data, 
and whether an upper limit is necessary. Is relevant accident data 
available that the Agency may not have considered? Should EPA consider 
a different limit? If so, what would be the basis for that limit? 
Should EPA express the upper limit in terms of tank capacity (i.e., 
18,000 gallons) instead of quantity in a process (i.e., 67,000 pounds)? 
Commenters are encouraged to provide supporting methodology for any 
other limit proposed, as well as accident data if available.
3. Fuels Are Odorized
    The final characteristic of flammable hydrocarbon fuels that 
reduces the likelihood and/or magnitude of offsite consequences 
resulting from accidental releases is the fact that most regulated 
flammable fuel substances are odorized. The most commonly used fuel 
substances covered by the RMP rule, propane and methane, have no 
natural odor. An odorant is generally added to these fuels as a warning 
agent such that the gases are detectable, by a distinct odor, well 
below the lower limit of flammability. EPA believes that the presence 
of the odorant increases the likelihood that accidental fuel releases 
can be detected and stopped or mitigated before the release generates 
sufficient vapor to cause a vapor cloud explosion or results in other 
significant offsite impacts. Furthermore, even if the release itself 
cannot be halted or mitigated, the presence of the warning odor may 
allow the public to evacuate to a safe distance from a fuel release. 
EPA recognizes that the presence of a warning odor, by itself, is not 
effective in every circumstance, and even if the odor is detected, 
human intervention is often still required to stop or mitigate an 
accidental release. Nevertheless, EPA believes that accidental releases 
of odorized fuels are often likely to be less severe, either in terms 
of the quantity released or its consequences, or both, than accidental 
releases of non-odorized flammable substances. EPA requests comment on 
this issue as it relates to other listed flammable hydrocarbon 
substances used as fuel that are not odorized.
    EPA requests comment on the preceding characteristics and whether 
they are appropriate as the bases for today's proposed exemption.

C. Alternative Approaches

    While EPA believes that today's proposed exemption would 
effectively exempt only those fuel using sources that present little 
risk to the offsite public, the Agency requests comment on whether 
alternative approaches might better serve this purpose. Specifically, 
EPA requests comment on the following alternative approaches:
1. Restrict Exemption to Processes Where Flammable Substances are Used 
On-site as Fuel; No Upper Quantity Limit on Exemption
    The approach proposed today is based on the analysis above, which 
indicates that fuel-use processes pose lower risk than other covered 
processes, so long as the quantity of fuel in the process does not 
exceed 67,000 pounds. However, for the sake of administrative 
simplicity, both for the regulated sources and the regulating agency 
(including state implementing agencies), EPA is not proposing to 
include fuel-use as an eligibility criterion for the exemption. EPA's 
data show that relatively few sources that store fuel for other than 
on-site use (e.g. fuel distributors and retailers) hold quantities of 
67,000 pounds or less in a process. And, to the extent that such 
sources exist, they are often in relatively remote locations, serving 
as small depots to rural customers. The Agency thus believes that a 
fuel-use criterion is probably unnecessary to assure proper application 
of the proposed exemption.
    Nevertheless, the first alternative to today's approach would 
restrict the exemption to only those sources where the presence of the 
fuel is only for actual on-site consumption. This alternative is 
virtually identical to the fuel-use exemption provided by OSHA under 29 
CFR part 1910, Process Safety Management of Highly Hazardous Chemicals; 
Explosives and Blasting Agents. Under the OSHA exemption (and this 
alternative to today's approach), no upper quantity limit restricts its 
applicability. In consideration of the aforementioned factors which 
differentiate fuel use from other flammable substance uses (or other 
factors that the Agency may not have considered), EPA requests comments 
on whether or not this alternative to the proposed exemption better 
accomplishes its stated purpose (i.e., to exempt from RMP coverage 
numerous small fuel users and better focus accident prevention 
activities on stationary source operations that present a greater risk 
to the community).

[[Page 29176]]

2. Restrict Exemption to Processes Where Flammable Substances Are 
Consumed On-site as Fuel; Retain Upper Quantity Limit on Exemption
    This alternative is identical to the first alternative, but retains 
the upper quantity limit on applicability for the exemption. This would 
ensure that the exemption would not be applied at sources that consume 
very large quantities of fuel on-site. As previously indicated, EPA 
believes that even in fuel-use situations that are less susceptible to 
vapor cloud explosions, such events can still occur if a sufficient 
quantity of fuel is released. In consideration of the factors which 
differentiate fuel use from other flammable substance uses, EPA 
requests comments on whether or not this alternative to the proposed 
exemption better accomplishes its stated purpose.
3. Restrict Exemption to Regulated Substances in Liquefied Petroleum 
Gas and/or Natural Gas
    In EPA's view, an important justification for providing a fuel 
exemption is that in the event of an accidental release of a small 
quantity of fuel (less than 67,000 pounds), significant offsite 
consequences are not likely. In deriving the proposed 67,000 pound 
upper quantity limit for the exemption, EPA incorporated some modeling 
assumptions that represent the characteristics of propane, the most 
widely used listed fuel substance. EPA believes these assumptions are 
also reasonably conservative when applied to modeling of methane, the 
primary component of natural gas. However, other listed flammable fuel 
substances, such as acetylene and propylene, have inherent 
characteristics for which these assumptions may be unsuitable (e.g., 
acetylene is much more reactive than propane). EPA believes that such 
substances are generally not stored for fuel use in quantities 
approaching 67,000 pounds. Therefore, EPA believes that the proposed 
exemption does not, as a practical matter, present any unintended 
additional risk to the public from such substances. However, EPA 
requests comment on whether or not the proposed exemption, or any of 
the proposed alternatives, should apply only to regulated substances in 
liquefied petroleum gas and natural gas, the flammable mixtures for 
which the exemption is, in large part, specifically intended.

D. Other Issues

    Comments are requested on the proposed exemption and alternatives 
and the other specific issues addressed (e.g., distinguishing 
characteristics of fuel-use, methodology for determination of upper 
quantity limit for the proposed exemption, whether or not to restrict 
the exemption to certain regulated fuel substances, etc.). This 
rulemaking does not otherwise concern the listing and threshold 
quantities of flammable substances; comments received on issues outside 
the scope of today's proposal will not be considered. EPA may conduct 
final rulemaking on any of today's proposed alternatives without 
requesting further public comment.

III. Summary of Proposed Revisions to the Rule

    EPA is proposing to amend subpart F, Sec. 68.115(b) of title 40 of 
the Code of Federal Regulations to add a new paragraph (6):
    (6) Fuels. Regulated flammable hydrocarbon substances need not be 
considered in determining whether more than a threshold quantity is 
present 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.''

IV. 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 has been established for this rulemaking under Docket No. A-
99-18, 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. Public Hearing and Written Comments

    A public hearing will be held, if requested, to discuss the 
proposed amendments in accordance with section 307(d)(5) of the Clean 
Air Act. If a public hearing is requested and held, the EPA will ask 
clarifying questions during the oral presentation but will not respond 
to the presentations or comments. Written statements and supporting 
information will be considered with equivalent weight as any oral 
statement and supporting information subsequently presented at a public 
hearing, if held. Persons wishing to present oral testimony or to 
inquire as to whether a hearing is to be held should contact the EPA 
(see FOR FURTHER INFORMATION CONTACT). To provide an opportunity for 
all who may wish to speak, oral presentations will be limited to 15 
minutes each.
    Any member of the public may file a written statement on or before 
July 12, 1999. Written statements should be addressed to the Air and 
Radiation Docket and Information Center (see ADDRESSES), and refer to 
Docket No. A-99-18. A verbatim transcript of the hearing and written 
statements will be placed in the docket and be available for public 
inspection and copying, or mailed upon request, at the Air and 
Radiation Docket and Information Center.

C. 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 this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

D. 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

[[Page 29177]]

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. This action proposes changes that will exempt from part 
68 requirements certain small fuel users, which may include some 
sources that are owned and operated by State, local or tribal 
governments. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this rule.

E. 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 proposed 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.

F. 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 action proposes changes 
that will exempt certain small fuel users, which may include 
communities of Indian tribal governments, from part 68 requirements. 
Accordingly, the requirements of section 3(b) of Executive Order 13084 
do not apply to this rule.

G. Regulatory Flexibility

    EPA certifies that this proposed rule will not have a significant 
economic impact on a substantial number of small entities. This rule 
proposes changes that will exempt many small fuel users from part 68 
requirements.

H. Paperwork Reduction

    The information collection requirements in this rule will be 
submitted for approval to the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An 
Information Collection Request (ICR) document has been prepared by EPA 
(ICR No. 1656.07) and a copy may be obtained from Sandy Farmer by mail 
at OPPE Regulatory Information Division; U.S. Environmental Protection 
Agency (2137); 401 M St., S.W.; Washington, DC 20460, by email at 
[email protected], or by calling (202) 260-2740. A copy may 
also be downloaded off the internet at http://www.epa.gov/icr. The 
information requirements are not effective until OMB approves them.
    The Office of Management and Budget (OMB) has approved the 
information collection requirements (ICR) contained for the RMP rule 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB control number 2050-0144. Under the current 
approved ICR No. 1656.05, EPA estimated the regulated universe as 
69,485 sources with an annualized burden of 1.2 million hours. This 
revision of the rule reduces reporting burden on small fuel users 
(hotels, restaurants, farms, etc.), thereby reducing the regulated 
universe estimated by EPA in the approved ICR No. 1656.05.
    EPA originally estimated that 12,500 propane retailers, 16,100 
propane users, (see Economic Analysis in support of Final Rule, June 
1996, available at EPA's Air Docket, Docket A-91-73) and about 5,300 
farms (see ICR No. 1656.05) would be subject to part 68 requirements 
because they handled more than 10,000 pounds of propane. EPA reviewed 
data from a number of states and determined that only New Jersey had 
sufficient data that provided detailed information on propane retailer 
and users (including farms) and the quantity held. Using these data, 
EPA estimates that, under the 67,000 pound threshold in this proposed 
rule, the number of propane retailers would decrease by 10 percent to 
11,250, and the number of users would decrease by 83 percent, to 2,700. 
EPA estimated the percentage of farms exempted under the 67,000 pound 
threshold by averaging data from New Jersey and North Carolina (data 
from North Carolina was used to estimate number of farms in the current 
approved ICR No. 1656.05). The farms would decrease by 85 percent, to 
780. Overall, the universe of regulated sources under the proposed rule 
is now estimated to decrease from 69,485 to 50,300.
    The public reporting burden will depend on the regulatory program 
tier into which sources are categorized. The public reporting burden 
for rule familiarization is estimated to range between 12 to 35 hours 
per source. The public reporting burden to prepare and submit a new RMP 
is estimated to take 6.0 hours for retailers to 10.0 hours for non-
chemical manufacturers. RMP revisions are estimated to require 3.0 
hours for wholesalers to 8.6 hours for chemical manufacturers. The 
public record keeping burden to maintain on-site documentation is 
estimated to range

[[Page 29178]]

from 2.8 hours for retailers to 279 hours for chemical manufacturers. 
The public reporting burden for CBI claims is estimated to be 9.5 hours 
for certain chemical manufacturing sources. In this action, EPA is not 
providing an exemption to sources that manufacture any of the flammable 
fuels, therefore, the original estimate for the CBI burden will not be 
changed with this rule. The public reporting burden for individuals 
filing petitions to amend the list of regulated substances is estimated 
to be 138 hours.
    EPA estimates (ICR no. 1656.07) that the total annual public 
reporting burden to become familiar with the rule, complete and submit 
(or revise) the risk management plan, maintain on-site documentation, 
substantiate claims for confidential business information, and prepare 
and submit petitions to amend the list of regulated substances is 
estimated to be about 1.1 million annual burden hours for the remaining 
50,300 sources subject to part 68 under the proposed rule.
    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, 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.
    Comments are requested on the Agency's need for this information, 
the accuracy of the provided burden estimates, and any suggested 
methods for minimizing respondent burden, including through the use of 
automated collection techniques. Send comments on the ICR to the 
Director, OP Regulatory Information Division; U.S. Environmental 
Protection Agency (2137); 401 M St., S.W.; Washington, DC 20460; and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, 725 17th St., N.W., Washington, DC 20503, marked 
``Attention: Desk Officer for EPA.'' Include the ICR number in any 
correspondence. Since OMB is required to make a decision concerning the 
ICR between 30 and 60 days after May 28, 1999, a comment to OMB is best 
assured of having its full effect if OMB receives it by June 28, 1999. 
The final rule will respond to any OMB or public comments on the 
information collection requirements contained in this proposal.

I. 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, rather it reduces burden for certain small fuel 
users. 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 proposes changes to exempt certain small fuel 
users which may include small governments.

J. 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 proposed rulemaking 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, 
Clean Air Act, Extremely hazardous substances, Intergovernmental 
relations, Hazardous substances, Reporting and recordkeeping 
requirements.

    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 proposed to 
be amended as follows:

PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS [AMENDED]

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

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

    2. Sec. 68.115 is amended by adding a new paragraph (b)(6) to read 
as follows:


Sec. 68.115  Threshold determination.

* * * * *
    (b)* * * * *
    (6) Fuels. Regulated flammable hydrocarbon substances need not be

[[Page 29179]]

considered in determining whether more than a threshold quantity is 
present 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. 99-13540 Filed 5-27-99; 8:45 am]
BILLING CODE 6560-50-P