[Federal Register Volume 65, Number 49 (Monday, March 13, 2000)]
[Rules and Regulations]
[Pages 13243-13250]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-5935]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-6550-1]
RIN 2050-AE74


Amendments to the List of Regulated Substances and Thresholds for 
Accidental Release Prevention; Flammable Substances Used as Fuel or 
Held for Sale as Fuel at Retail Facilities

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA is modifying its chemical accident prevention regulations 
to conform to the fuels provision of the recently enacted Chemical 
Safety Information, Site Security and Fuels Regulatory Relief Act (Pub. 
L. 106-40). In accordance with the new law, today's rule revises the 
list of regulated flammable substances to exclude those substances when 
used as a fuel or held for sale as a fuel at a retail facility. EPA is 
also announcing there will be no further action on a previous proposal 
concerning flammable substances, since the new law resolves the issue 
addressed by the proposal.

DATES: Effective March 13, 2000.

ADDRESSES: Docket. Supporting material used in developing the final 
rule is contained in Docket No. A-99-36. The docket is available for 
public inspection and copying between 8:00 am and 5:30 pm, Monday 
through Friday (except government holidays) at EPA's Air Docket, Room 
1500, Waterside Mall, 401 M Street, SW, Washington, DC 20460; phone 
number: 202-260-7548. A reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT: Breeda Reilly, Chemical Emergency 
Preparedness and Prevention Office, Environmental Protection Agency, 
Ariel Rios Building, 1200 Pennsylvania Ave, NW (5104), Washington, DC 
20460, (202) 260-0716.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background
    A. Statutory Authority
    B. Background on Chemical Accident Prevention Regulations
II. Discussion of Modification
    A. Affected Substances
    B. Use or Sale as a Fuel
III. Previous Actions Related to Fuels
    A. Previous Proposed Rule and Administrative Stay
    B. Litigation and Court Stay
IV. RMP's Submitted Prior to Today's Action

[[Page 13244]]

V. Rationale for Issuance of Rule Without Prior Notice
VI. Summary of Revisions to Rule
VII. Administrative Requirements
    A. Docket
    B. Executive Order 12866
    C. Executive Order 13045
    D. Executive Order 13084
    E. Executive Order 13132
    F. Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) 5 
U.S.C. 601 et seq.
    G. Paperwork Reduction Act
    H. Unfunded Mandates Reform Act
    I. National Technology Transfer and Advancement Act
    J. Congressional Review Act

I. Introduction and Background

A. Statutory Authority

    This rule is being issued under section 112(r) of the Clean Air Act 
(CAA) as amended by the Chemical Safety Information, Site Security and 
Fuels Regulatory Relief Act (the Act), which President Clinton signed 
into law on August 5, 1999. Section 2 of the Act immediately removed 
EPA's authority to ``list a flammable substance when used as a fuel or 
held for sale as a fuel at a retail facility * * * solely because of 
the explosive or flammable properties of the substance, unless a fire 
or explosion caused by the substance will result in acute adverse 
health effects from human exposure to the substance, including the 
unburned fuel or its combustion byproducts, other than those caused by 
the heat of the fire or impact of the explosion.''
    The Act defines ``retail facility'' as ``a stationary source at 
which more than one-half of the income is obtained from direct sales to 
end users or at which more than one-half of the fuel sold, by volume, 
is sold through a cylinder exchange program.''

B. Background on Chemical Accident Prevention Regulations

    CAA section 112(r) contains requirements for the prevention and 
mitigation of accidental chemical releases. The focus is on those 
chemicals that pose the greatest risk to public health and the 
environment in the event of an accidental release. Section 112(r)(3) 
mandates that EPA identify at least 100 such chemicals and promulgate a 
list of ``regulated substances'' with threshold quantities. Section 
112(r)(7) directs EPA to issue regulations requiring stationary sources 
that contain more than a threshold quantity of a regulated substance to 
develop and implement a risk management program and submit a risk 
management plan (RMP).
    EPA promulgated the initial list of regulated substances on January 
31, 1994 (59 FR 4478) (the ``List Rule''). The Agency identified two 
categories of regulated substances--toxic and flammable--and listed 
substances accordingly. EPA included 77 chemicals on the toxic 
substances list based on each chemical's acute toxicity and several 
other factors--the chemical's physical state, physical/chemical 
properties and accident history--relevant to the likelihood that an 
accidental release of the chemical would lead to significant offsite 
consequences. The Agency also placed 63 substances on the flammable 
substances list, including vinyl chloride, a substance mandated for 
listing by Congress. EPA selected chemicals for the flammable 
substances list based on their flammability rating and the other 
factors related to likelihood of significant offsite consequences.
    Of the originally listed substances, 14 met the criteria for both 
toxic and flammable substances (arsine, cyanogen chloride, diborane, 
ethylene oxide, formaldehyde, furan, hydrocyanic acid, hydrogen 
selenide, hydrogen sulfide, methyl chloride, methyl mercaptan, 
phosphine, propyleneimine, and propylene oxide). EPA placed these 14 
substances on only the toxic substances list, because their toxicity 
poses the greater threat to human health and the environment.
    Following promulgation of the List Rule, EPA issued a rule 
establishing the accidental release prevention requirements on June 20, 
1996 (61 FR 31668) (``the RMP Rule''). Together these rules are 
codified at 40 CFR part 68.
    In accordance with section 112(r)(7), the RMP rule requires that 
any stationary source with more than a threshold quantity of a 
regulated substance in a process develop and implement a risk 
management program and submit an RMP describing the source's program as 
well as its five-year accident history and potential offsite 
consequences. The rule further provides that RMPs be submitted by June 
21, 1999 for sources with more than a threshold quantity of a regulated 
substance in a process by that date, or within a specified time of the 
source first exceeding the applicable threshold.
    EPA has amended the List and RMP Rules several times. On August 25, 
1997 (62 FR 45132), EPA amended the List Rule to change the listed 
concentration of hydrochloric acid. On January 6, 1998 (63 FR 640), EPA 
again amended the List Rule to delist Division 1.1 explosives 
(classified by the Department of Transportation (DOT)), to clarify 
certain provisions related to regulated flammable substances, and to 
clarify the transportation exemption. EPA amended the RMP Rule on 
January 6, 1999 (64 FR 964) to add several mandatory and optional RMP 
data elements, to establish procedures for protecting confidential 
business information, to adopt a new industry classification system and 
to make technical corrections and clarifications. EPA also amended the 
RMP Rule on May 26, 1999 (64 FR 28696) to modify the requirements for 
conducting worst case release scenario analyses for flammable 
substances and to clarify its interpretation of CAA sections 112(1) and 
112(r)(11) as they relate to DOT requirements under the Federal 
Hazardous Transportation Law.

II. Discussion of Modification

A. Affected Substances

    The new Act provides that EPA shall not list a flammable substance 
when used as a fuel,\1\ or held for sale as a fuel at a retail facility 
solely because of its explosive or flammable properties, except under 
certain circumstances. The purpose of today's rule is to revise the 
List Rule as needed to conform to the Act.
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    \1\ EPA has received a number of questions as to whether the 
fuel use exclusion is available only to retail facilities. EPA 
believes that the statute and legislative history are clear that the 
fuel use exclusion is available to any facility that uses a 
flammable substance as a fuel.
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    As described above, the List Rule currently contains two lists--one 
of toxic substances and one of flammable substances. The toxic 
substances list contains those chemicals that meet the criteria listing 
as toxic substances, even if they also meet the criteria for listing as 
flammable substances. Accordingly, every chemical on the toxic 
substances list was listed for its toxicity at least and not solely 
because of its explosive or flammable properties. The substances on the 
toxics list are thus not affected by the new Act.
    The substances on the flammables list, on the other hand, are 
listed ``solely'' because they meet a certain flammability rating, 
taking other risk factors into account. In deciding what flammable 
substances to list, EPA concentrated on those substances that have the 
potential to result in significant offsite consequences. Accidents 
involving flammable substances may lead to vapor cloud explosions, 
vapor cloud fires, boiling liquid expanding vapor explosions (BLEVEs), 
pool fires, and jet fires, depending on the type of substance involved 
and the

[[Page 13245]]

circumstances of the accident. Historically, flammable substance 
accidents having significant offsite impacts involved either vapor 
cloud explosions at refineries and chemical plants, or BLEVEs at 
sources storing large quantities of flammable substances. Vapor cloud 
explosions produce blast waves that potentially can cause offsite 
damage and kill or injure people. High overpressure levels can cause 
death or injury as a direct result of an a explosion; such effects 
generally occur close to the site of an explosion. People can also be 
killed or injured because of indirect effects of the blast (e.g., 
collapse of buildings, flying glass or debris); these effects can occur 
farther from the site of the blast.
    By contrast, the effects of vapor cloud fires, in which the vapor 
cloud burns but does not explode, are limited primarily to the area 
covered by the burning cloud. BLEVEs, which generally involve the 
rupture of a container, can cause container fragments to be thrown 
substantial distances; such fragments have the potential to cause 
damage and injury.
    Thermal radiation is the primary hazard of pool and jet fires. The 
potential effects of thermal radiation generally do not extend for as 
great a distance as those of blast waves and are related to the 
duration of exposure; people at some distance from a fire would likely 
be able to escape.
    Based on this analysis and available accident history data, the 
Agency concluded that vapor cloud explosions and BLEVEs pose the 
greatest potential hazard from flammable substances to the public and 
environment. For purposes of the List Rule, EPA consequently focused on 
those chemicals with the potential to result in vapor cloud explosions 
or BLEVEs in the event of an accidental release. The Agency determined 
that chemicals meeting the highest flammability rating of the National 
Fire Protection Agency (NFPA) had this potential and used that rating 
as the principal criterion for including chemicals on the flammable 
substances list.
    The other factors EPA considered in listing flammable substances--
physical state, physical/chemical properties and accident history--all 
relate to a chemical's potential to be accidentally released in a way 
that could lead to a vapor cloud explosion or BLEVE. In short, the 
Agency included chemicals on the flammable substances list ``solely'' 
because of their explosive potential, a basis now disallowed by the new 
Act for flammable substances when used as a fuel or held for sale as a 
fuel at a retail facility.
    The new Act nevertheless allows EPA to list a flammable substance 
when used as a fuel, or held for sale as a fuel where a fire or 
explosion caused by the substance will result in acute adverse health 
effects from human exposure to the substance or its combustion 
byproducts. EPA believes, however, that no listed substances on the 
flammable substances list is a candidate for this exception. As noted 
above, flammable substances that meet the listing criteria for toxic 
substances are on the toxic substances list only. Therefore, none of 
the chemicals on the flammable substances list will qualify for the 
exception based on acute health effects from exposure to the substance 
itself.
    Further, combustion byproducts are generally not relevant to 
listing flammable substances. For hydrocarbons, including the listed 
flammable substances commonly used as fuels, typical combustion 
products include water vapor, carbon dioxide, carbon monoxide, and 
relatively small amounts of other oxidized inorganic substances and do 
not meet the listing criteria for toxic substances. Several other 
listed flammable substances may result in combustion byproducts that 
meet the listing criteria for toxic substances, but these substances 
are not commonly used as fuels. Further, any toxic combustion 
byproducts will be a fraction of the total mass and not likely to 
exceed the applicable threshold for coverage by the RMP rule. 
Quantities below the threshold are unlikely to have significant offsite 
consequences.
    For these reasons, EPA believes that none of the listed flammable 
substances meet the new statute's test for listing fuels. Consequently, 
all of the listed flammable substances are potentially affected by the 
Act.

B. Use or Sale as a Fuel

    The Act prohibits the listing of flammable substances ``when used 
as a fuel or held for sale as a fuel at a retail facility.'' In 
limiting EPA's authority to list flammable substances used as a fuel, 
or sold as a fuel at retail facilities, Congress sought greater 
consistency between the RMP program and the Process Safety Management 
(PSM) Standard implemented by the Occupational Health and Safety 
Administration (OSHA). OSHA's PSM Standard is the workplace counterpart 
of EPA's RMP program. PSM requirements protect workers from accidental 
releases of highly hazardous substances in the workplace, while the RMP 
rule protects the public and environment from the offsite consequences 
of those releases.
    The PSM and RMP programs are similar in many ways, covering mostly 
the same chemicals. Establishments subject to the PSM Standard must 
comply with the prevention program requirements which are the same as 
the RMP rule's Program 3 requirements (subpart D of the Part 68 
regulations). However, OSHA provides an exemption from the PSM Standard 
for hydrocarbon fuels used solely for workplace consumption as a fuel 
(e.g., propane used for comfort heating), if such fuels are not part of 
a process containing another highly hazardous chemical covered by the 
standard. It also exempts such substances when sold by retail 
facilities.
    The two prongs of the limitation on EPA's authority to list 
flammable substances (i.e., use as a fuel or held for sale as a fuel by 
a retail facility) largely follow the OSHA exemptions relating to fuel. 
EPA will therefore look to OSHA precedent and coordinate with OSHA in 
interpreting and applying the limitations to the extent they parallel 
OSHA's exemptions. For example, the new Act does not define the term 
``fuel,'' but OSHA has given ``fuel'' its ordinary meaning in applying 
the PSM fuel-related exemptions. Webster's Ninth New Collegiate 
Dictionary (1990) defines fuel as ``a material used to produce heat or 
power by burning,'' and EPA has no reason to believe that ``fuel'' as 
used by the new Act should be defined differently.
    Using the ordinary meaning of fuel, EPA reviewed the chemicals on 
its flammable substances list to determine which are used as fuel. 
Several of the listed substances are typically used as fuel, including 
propane, liquified petroleum gas (propane and/or butane often with 
small amounts of propylene and butylene); hydrogen; and gaseous natural 
gas (methane). EPA is aware of the possibility of other flammable 
substances being used as a fuel in particular circumstances. The 
following is a list of regulated flammable substances that EPA believes 
have been used as a fuel.

                     Table 1.--List of Common Fuels
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                       Chemical name                           CAS No.
------------------------------------------------------------------------
Acetylene [Ethyne]........................................       74-86-2
Butane....................................................      106-97-8
1-Butene..................................................      106-98-9
2-Butene..................................................      107-01-7
Butene....................................................    25167-67-3
2-Butene-cis..............................................      590-18-1
2-Butene-trans [2-Butene, (E)]............................      624-64-6
Ethane....................................................       74-84-0
Ethylene [Ethene].........................................       74-85-1
Hydrogen..................................................     1333-74-0

[[Page 13246]]

 
Isobutane [Propane,  2-methyl-]...........................       75-28-5
Isopentane [Butane,  2-methyl-]...........................       78-78-4
Methane...................................................       74-82-8
Pentane...................................................      109-66-0
1-Pentene.................................................      109-67-1
2-Pentene, (E)-...........................................      646-04-8
2-Pentene, (Z)-...........................................      627-20-3
Propane...................................................       74-98-6
Propylene.................................................      115-07-1
------------------------------------------------------------------------

    At the same time, all of the substances listed above are sometimes 
used as feedstock chemicals instead of fuel. Further, every listed 
flammable substance has the potential to be used as fuel, since it may 
be burned to create heat or power. Consequently, the List Rule cannot 
be conformed to the new law by deleting particular chemicals from the 
flammable substances list. Instead, EPA has added a provision to part 
68, Subpart F (listing regulated substances) that excludes flammable 
substances when used as a fuel, or held for sale as a fuel at a retail 
facility from the list of regulated substances. The Agency has also 
annotated both versions of the flammable substances list (one version 
lists the substances alphabetically, the other by Chemical Abstract 
Service (CAS) number) to indicate that any flammable substance, when 
used as a fuel, or held for sale as a fuel at a retail facility, is 
excluded from the list.
    As previously mentioned, the Act defines a ``retail facility'' as a 
stationary source at which more than one-half of the income is obtained 
from direct sales to end users or at which more than one-half of the 
fuel sold, by volume, is sold through a cylinder exchange program. The 
income test portion of the definition follows the definition of 
``retail facility'' used by the OSHA in enforcing its PSM Standard 
(OSHA Directive CPL2-2.45A CH-1-Process Safety Management of Highly 
Hazardous Chemicals--Compliance Guidelines and Enforcement Procedures): 
``an establishment that would otherwise be subject to the PSM standard 
at which more than half of the income is obtained from direct sales to 
end users.''
    The effect of the income test portion of the new Act's retail 
facility definition is to provide relief to the same facilities that 
qualify for OSHA's retail facility exemption, and conversely, to 
require facilities that do not quality for OSHA's exemption, and thus 
are subject to the PSM program, to also be subject to the RMP program, 
provided no other exemption applies. EPA will consequently coordinate 
its interpretation and application of the income test portion of the 
retail facility definition with OSHA.
    The second portion of the retail facility definition--concerning 
cylinder exchange programs--goes beyond that developed by OSHA and so 
provides greater relief than the OSHA retail facility exemption. In 
general, cylinder exchange programs represent a link between major 
retailers (for example, hardware stores, home centers and convenience 
stores) and propane distributors. The retailer typically provides space 
outdoors and manages transactions with end users such as homeowners; 
the propane distributor typically provides racks, filled cylinders, 
promotional materials, and training to the retailer's employees. 
Propane distributors may have several markets, including cylinder 
exchange; temporary heat during construction; commercial cooking, 
heating, and water heating; fuel to power vehicles, forklifts, and 
tractors; agricultural drying and heating; and others.
    For propane or other fuel distributors which meet the definition of 
retail facility through either direct sales to end users or a cylinder 
exchange program, the fuel they hold is no longer covered by the RMP 
rule. For propane or other fuel distributors that do not meet the 
definition, the fuel they hold is not exempted from the RMP rule by the 
new law or today's action. EPA has added to part 68 a definition of 
``retail facility'' that mirrors the statutory definition.

III. Previous Actions Related to Fuels

A. Previous Proposed Rule and Administrative Stay

    After promulgating the RMP rule, EPA became aware that a 
significant number of small, commercial sources use regulated flammable 
substances, particularly propane, as fuel in quantities in excess of 
the applicable threshold quantity (10,000 lbs in a process). As a 
result, these small sources, including farms, restaurants, hotels, and 
other commercial operations, were covered by the RMP requirements. Many 
of these sources are in rural locations where accidental releases are 
less likely to have significant offsite consequences. In light of the 
purpose of section 112(r)--to focus comprehensive accident prevention 
requirements on the most potentially dangerous sources--EPA reexamined 
whether farms and other small fuel users should be covered by the RMP 
rule.
    On May 28, 1999, EPA issued a proposed amendment to the List Rule 
to create an exemption from threshold quantity determinations for 
processes containing 67,000 pounds or less of a listed flammable 
hydrocarbon fuel (64 FR 29171). EPA estimated that the proposed 
amendment, if promulgated, would reduce the universe of regulated 
sources from 69,485 to 50,300. At the same time (64 FR 29167), EPA 
published a temporary stay of the effectiveness of the RMP rule for 
those sources that would be exempted under the proposal. This stay, 
which expired on December 21, 1999, was in addition to, and did not 
affect, a stay of the rule for propane processes entered by the U.S. 
Court of Appeals for the D.C. Circuit (See Litigation and Court Stay).
    While EPA was seeking comment on the proposed rule, Congress also 
studied the fuel issue and considered ways to provide regulatory relief 
to fuel users and retailers. Congress was concerned that the RMP rule 
placed a significant regulatory burden on facilities that were not 
previously covered by the OSHA PSM Standard. Congress decided to amend 
section 112(r) of the CAA to remove EPA's authority to list any 
flammable substance when used as a fuel, or held for sale as a fuel at 
a retail facility, except under specified circumstances.
    While the new law and EPA's proposed rule and temporary stay all 
offer regulatory relief with respect to fuels, the new law reaches 
farther than EPA's actions. The new law provides relief for all fuels, 
not just hydrocarbon fuels. It also removes fuels from the RMP program 
regardless of the amount a stationary source uses or holds for retail 
sale, whereas EPA's proposal and stay only affects sources having no 
more than 67,000 lbs of fuel in a process. The new law does limit 
relief for fuel sellers to fuel retailers, whereas EPA's stay does not 
distinguish between types of fuel sellers. However, EPA believes that 
virtually no fuel wholesaler qualifies for the Agency's stay because 
wholesalers typically hold fuel in quantities far greater than 67,000 
lbs. Even if a few wholesalers would have benefitted from EPA's 
proposed rule, the Agency believes that Congress has addressed the 
issue of how to provide regulatory relief to fuel users and sellers, 
and that EPA should thus implement Congress' approach without making 
exceptions to it.
    Therefore, EPA is today withdrawing the proposed rule as it takes 
final action to amend the List Rule to conform to the new law. As 
previously mentioned, EPA's temporary stay of effectiveness expired on 
December 21, 1999.

[[Page 13247]]

B. Litigation and Court Stay

    Following promulgation of the RMP rule in 1996, several petitions 
for judicial review of the rule were filed, including one by the 
National Propane Gas Association (NPGA). At NPGA's request, the U.S. 
Court of Appeals for the District of Columbia Circuit entered a 
temporary stay of the RMP rule as it applies to propane (Chlorine 
Institute v. Environmental Protection Agency, No. 96-1279, and 
consolidated cases (Nos. 96-1284, 96-1288, and 96-1290), Order of April 
27, 1999). The judicial stay meant that any stationary source, or 
process at a stationary source, subject to the RMP rule only by virtue 
of propane was not 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.
    On Jan. 5, 2000, the Court lifted its temporary stay in response to 
a joint motion by EPA and NPGA to dismiss the case and lift the stay. 
As of that date, part 68, as revised by the Act, is in effect with 
respect to any facility having more than the 10,000 pounds of propane 
in a process unless the facility uses the propane as a fuel or sells 
the propane as a retail facility. Facilities that use propane in their 
manufacturing processes or hold propane for purposes other than on-site 
fuel use at a non-retail facility must immediately come into compliance 
with Section 112(r) of the CAA.

IV. RMP's Submitted Prior to Today's Action

    EPA has received about 1,966 RMP's that address one or more of the 
19 listed flammable substances that EPA has identified as likely to be 
used as a fuel. EPA cannot unilaterally delete any of the RMP's 
submitted for flammable substances from the RMP database, however, 
because the determination of whether a facility is eligible for the 
exclusion is based on information which is not reported to EPA, namely, 
whether a facility uses the flammable substance as a fuel or holds it 
for retail sale. Instead, EPA plans to send a letter to each of the 
1,966 facilities to notify them of the exclusion, to ask them to 
evaluate their eligibility for the exclusion, and to describe the 
process the facilities should use to request a withdrawal of or to 
update these RMP's.
    For about 950 of the 1,966 RMP's that reported a potential 
flammable fuel, only one chemical is reported. For these cases, the 
facilities will be asked to evaluate whether they qualify for the 
exclusion based on use or retail sales. If they determine that they do 
not qualify, no further action is required. If they determine that they 
do qualify, they may request that EPA withdraw their submission and EPA 
will delete it from the RMP database. Facilities will have the option 
of using the form that EPA developed to facilitate the withdrawal or 
simply stating their request in a letter. Alternatively, facilities can 
leave the RMP as a voluntary submission in the database and need not 
take further action.
    The balance of the RMP's reported more than one substance. About 
200 RMP's reported a toxic chemical substance in addition to the 
potential flammable fuel. For these cases, the facilities will be asked 
to evaluate whether their flammable substance qualifies for the 
exclusion based on use or retail sales. If they determine that they do 
not qualify, no further action is required. If they determine that they 
do qualify, they may resubmit their RMP, reporting only on the toxic 
substances. Alternatively, facilities can leave the original RMP 
including the flammable fuel submission in the database and need not 
take further action.
    About 745 RMP's reported multiple flammable substances. For these 
cases, the facilities will be asked to evaluate whether each reported 
flammable substance qualifies for the exclusion based on use or retail 
sales. If they determine that none of their reported flammable 
substances qualify, no further action is required. If they determine 
that all of the reported substances qualify, they may request that EPA 
withdraw their submission and EPA will delete it from the RMP database. 
Facilities will have the option of using the formal withdrawal process 
or simply sending a letter. Alternatively, facilities can leave the RMP 
as a voluntary submission in the database and need not take further 
action. If they determine that only some of the flammable substances 
reported qualify, they will need to check their flammable worst case 
scenario and off-site consequence analysis (OCA). If their original 
worst case analysis is based on a flammable substance that is excluded, 
the facility should revise their RMP to provide appropriate OCA. Within 
its enforcement discretion, EPA plans to treat this similarly to the 
existing requirement to revise RMP's within 6 months of a process 
change, giving facilities 6 months to revise their RMP's. If their 
original worst case analysis is based on a flammable substance that is 
not excluded, the facility won't need to update their RMP, except as 
part of the regular reporting cycle.

V. Rationale for Issuance of Rule Without Prior Notice

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment.
    EPA is taking this action without prior notice and opportunity to 
comment. As previously mentioned, section 2 of the new Act, which took 
effect on August 5, 1999, immediately removed EPA's authority to list 
flammable substances when used as a fuel, or held for sale as a fuel at 
a retail facility. Consequently, EPA's regulation containing the list 
of regulated substances subject to the RMP rule needs to be modified to 
reflect the new law.
    EPA has determined that there is good cause for making today's rule 
final without prior proposal and opportunity for comment because the 
Agency is codifying legislation which focuses clearly on a particular 
set of regulations and requires little interpretation by the Agency. In 
addition, EPA believes it is in the public interest to issue the 
revised list as soon as possible, to avoid confusion about the coverage 
of the RMP rule. As of August 5, 1999, there is no statutory basis for 
extending the RMP rule to listed flammable substances when used as a 
fuel, or held for sale as a fuel at a retail facility, except under 
certain circumstances. The Agency's rule should therefore be revised to 
reflect the change in authority as soon as possible. A comment period 
is unnecessary because today's action is nondiscretionary. A comment 
period would also be contrary to the public interest because the 
resulting delay would contribute to confusion about the coverage of the 
RMP rule. Thus, notice and public procedure are unnecessary and 
contrary to the public interest. EPA finds that this constitutes good 
cause under 5 U.S.C. 553(b)(B).
    The Agency is also issuing this rule with an immediate effective 
date. Since its effect is to relieve a restriction (i.e., the 
requirement to comply with the RMP rule), EPA may make it effective 
upon promulgation. Further, EPA believes it is in the public interest 
to make it immediately effective, for the same reasons given above for 
dispensing with prior notice and comment.

VI. Summary of Revisions to Rule

    This section summarizes the changes to the rule.

[[Page 13248]]

    Section 68.3, Definitions, has been revised to add a definition of 
retail facility, as defined in the new law.
    Section 68.126 has been added to create an exclusion for regulated 
flammable substances used as fuel or held for sale as fuel at retail 
facilities. The exclusion is derived from the new law.
    In Section 68.130, footnotes have been added to Tables 3 and 4. 
These two tables list the regulated flammable substances and their 
threshold quantities. Table 3 lists the regulated flammable substances 
in alphabetical order while Table 4 lists them in CAS number order. The 
footnotes remind the reader of the exclusion for regulated flammable 
substances. The reference to each footnote appears as an asterisk 
following the term ``flammable substance'' in the titles of Tables 3 
and 4.

VII. 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 under Docket A-99-36, and is available 
for inspection from 8:00 a.m. to 5:30 p.m., Monday through Friday, 
excluding legal holidays. The official rulemaking record is located at 
the address in ADDRESSES at the beginning of this document.

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether 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.

C. 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.
    EPA interprets E.O. 13045 as applying only to those regulatory 
actions that are based on health or safety risks, such that the 
analysis required under Section 5-501 of the Order has the potential to 
influence the regulation.
    This action is not subject to this Executive Order because it is 
not economically significant as defined in E.O. 12866, and because it 
does not establish an environmental standard intended to mitigate 
health or safety risks.

D. 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 reduces burden on 
flammable fuel users, which may include some sources owned or operated 
by Indian tribal governments. Accordingly, the requirements of section 
3(b) of Executive Order 13084 do not apply to this rule.

E. Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under Section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Today's rule reduces the burden 
for those state, local,

[[Page 13249]]

or tribal governments that may own or operate sources that use 
flammable fuels. Thus, the requirements of section 6 of the Executive 
Order do not apply to this rule.

F. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.

    Under the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601, 
et seq.), as amended by the Small Business Regulatory Enforcement 
Fairness Act of 1996 (SBREFA), the Agency is required to give special 
consideration to the effect of Federal regulations on small entities 
and to consider regulatory options that might mitigate any such 
impacts. Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions.
    Today's final rule is not subject to RFA, which generally requires 
an agency to prepare a regulatory flexibility analysis for any rule 
that will have a significant economic impact on a substantial number of 
small entities. The RFA applies only to rules subject to notice-and-
comment rulemaking requirements under the Administrative Procedure Act 
(APA) or any other statute. The rule is subject to the APA, but as 
described in Section IV of this preamble, the Agency has invoked the 
``good cause'' exemption under APA Section 553(b), which does not 
require notice and comment. Although this final rule is not subject to 
the RFA, EPA nonetheless has assessed the potential of this rule to 
adversely impact small entities subject to the rule. EPA does not 
believe the rule will adversely impact small entities. This action 
excludes flammable substances when used as a fuel, or held for sale as 
a fuel at a retail facility from the list of substances regulated by 40 
CFR part 68, which will reduce burden on many small entities that 
otherwise would be covered by these requirements.

G. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing 
regulations 40 CFR part 68 under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2050-0144 (EPA ICR No.1656.06). EPA estimates a burden hour 
reduction of 70,400 hours.
    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.

H. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    Because the Agency has made a ``good cause'' finding that this 
action is not subject to notice-and-comment requirements under the 
Administrative Procedures Act or any or any other statute (see Section 
IV of this preamble), it is not subject to sections 202 and 205 of the 
Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).
    Pursuant to Section 203 of UMRA, EPA has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. This rule does not contain any 
additional requirements, rather it reduces the burden on small 
governement sources that use flammable substances as fuel.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A ``major rule'' 
cannot take effect until 60 days after it is published in the Federal 
Register.

[[Page 13250]]

This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). It 
takes effect today.

List of Subjects in 40 CFR Part 68

    Environmental protection, Chemicals, Chemical accident prevention.

    Dated: March 3, 2000.
Carol M. Browner,
Administrator.

    For the reasons stated in the preamble, EPA amends 40 CFR part 68 
as follows:

PART 68--[AMENDED]

    1. The authority section for part 68 is revised to read as follows:

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

Subpart A--[Amended]

    2. Section 68.3 is amended to add the following definition in 
alphabetical order:


Sec. 68.3  Definitions.

* * * * *
    Retail facility means a stationary source at which more than one-
half of the income is obtained from direct sales to end users or at 
which more than one-half of the fuel sold, by volume, is sold through a 
cylinder exchange program.
* * * * *

Subpart F--[Amended]

    3. Section 68.126 is added to subpart F to read as follows:


Sec. 68.126  Exclusion.

    Flammable Substances Used as Fuel or Held for Sale as Fuel at 
Retail Facilities. A flammable substance listed in Tables 3 and 4 of 
Sec. 68.130 is nevertheless excluded from all provisions of this part 
when the substance is used as a fuel or held for sale as a fuel at a 
retail facility.

    4. Section 68.130 is amended by:
    A. Revising the heading of Table 3;
    B. Revising the notes to Table 3 and adding a new footnote 1;
    C. Revising the heading to Table 4; and
    D. Revising the notes to Table 4 and adding a new footnote 1.
    The revisions and additions read as follows:


Sec. 68.130  List of substances.

* * * * *

Table 3 to Sec.  68.130.--List of Regulated Flammable Substances \1\ and
         Threshold Quantities for Accidental Release Prevention
                   [Alphabetical Order-63 Substances]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
 
                  *        *         *        *      *
------------------------------------------------------------------------
\1\ A flammable substance when used as a fuel or held for sale as a fuel
  at a retail facility is excluded from all provisions of this part (see
  Sec.  68.126).
 
 Note: Basis for Listing:
  a Mandated for listing by Congress.
  f Flammable gas.
  g Volatile flammable liquid.


Table 4 to Sec.  68.130.--List of Regulated Flammable Substances \1\ and
         Threshold Quantities for Accidental Release Prevention
                    [CAS Number Order-63 Substances]
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
 
                   *        *         *        *    *
------------------------------------------------------------------------
\1\ A flammable substance when used as a fuel or held for sale as a fuel
  at a retail facility is excluded from all provisions of this part (see
  Sec.  68.126).
 
 Note: Basis for Listing:
  a Mandated for listing by Congress.
  f Flammable gas.
  g Volatile flammable liquid.

[FR Doc. 00-5935 Filed 3-10-00; 8:45 am]
BILLING CODE 6560-50-P