[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