[Federal Register Volume 66, Number 111 (Friday, June 8, 2001)]
[Rules and Regulations]
[Pages 30818-30822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14079]



[[Page 30818]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[DE001-1000; FRL-6988-3]


Approval of Section 112(l) Authority for Hazardous Air 
Pollutants; Chemical Accident Prevention Provisions and Risk Management 
Plans; Delaware; Approval of Accidental Release Prevention Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action to approve the Delaware 
Department of Natural Resources and Environmental Control's (DNREC's) 
request to implement and enforce its accidental release prevention 
program in place of similar Federal requirements. EPA is taking this 
action under the requirements of the Clean Air Act.

DATES: This direct final rule will be effective August 7, 2001 unless 
EPA receives adverse or critical comments by July 9, 2001. If adverse 
comment is received, EPA will publish a timely withdrawal of the rule 
in the Federal Register and inform the public that the rule will not 
take effect.

ADDRESSES: Written comments on this action should be sent concurrently 
to: Makeba A. Morris, Chief, Permits and Technical Assessment Branch, 
Mail Code 3AP11, Air Protection Division, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, PA 19103-2029 and 
Robert A. Barrish, Delaware Department of Natural Resources and 
Environmental Control, Division of Air and Waste Management, 715 
Grantham Lane, New Castle, DE 19720. Copies of the documents relevant 
to this action are available for public inspection during normal 
business hours at the Air Protection Division, U.S. Environmental 
Protection Agency, Region III, 1650 Arch Street, Philadelphia, 
Pennsylvania 19103; the Air and Radiation Docket and Information 
Center, U.S. Environmental Protection Agency, 401 M Street, SW., 
Washington, DC 20460; and Delaware Department of Natural Resources & 
Environmental Control, Division of Air and Waste Management, 715 
Grantham Lane, New Castle, DE 19720.

FOR FURTHER INFORMATION CONTACT: Dianne J. Walker, U.S. Environmental 
Protection Agency, Region 3, 1650 Arch Street (3AP11), Philadelphia, PA 
19103-2029, [email protected] (telephone 215-814-3297)

SUPPLEMENTARY INFORMATION:

I. Background

    Section 112(r) of the Clean Air Act (CAA) provides for the 
prevention and mitigation of accidental chemical releases. CAA section 
112(r)(3)-(5) mandates that EPA promulgate a list of ``regulated 
substances'', with threshold quantities. Processes at stationary 
sources that contain a threshold quantity of a regulated substance are 
subject to accidental release prevention regulations promulgated under 
CAA section 112(r)(7). Pursuant to CAA section 112(r)(3) and (5), EPA 
published a list of substances and threshold quantities on January 31, 
1994 (59 FR 4478) and subsequently amended this list on June 20, 1996 
(61 FR 31730), August 25, 1997 (62 FR 45129), January 6, 1998 (63 FR 
639), May 28, 1999 (64 FR 29167) and March 13, 2000 (65 FR 13243). 
Pursuant to CAA section 112(r)(7), EPA published the risk management 
program regulations on June 20, 1996 (61 FR 31668), and subsequently 
amended the regulations on January 6, 1999 (64 FR 963) and May 26, 1999 
(64 FR 28695). The risk management program regulations are set forth at 
40 CFR part 68. The regulations require, among other things, that 
owners and operators of stationary sources with more than a threshold 
quantity of a regulated substance in a process submit a risk management 
plan (RMP) by June 21, 1999, to a central location specified by EPA. A 
RMP must include, in general, an offsite consequence analysis (OCA), a 
prevention program, and an emergency response program.
    It should be noted that the Chemical Safety Information, Site 
Security and Fuels Regulatory Relief Act, Public Law No. 106-40, which 
was enacted on August 5, 1999, excludes from coverage by the Federal 
Chemical Accident Prevention provisions any regulated flammable 
substance when used as fuel or held for sale as fuel by a retail 
facility. In its May 28, 1999 (64 FR 29167) rule amendments, EPA 
provided a stay of effectiveness from the risk management program 
regulation for these facilities until December 21, 1999. EPA amended 
its regulations on March 13, 2000 (65 FR 13243) to conform with this 
legislation. Public Law 106-40 also limits, until at least August 5, 
2000, public access to the OCA portions of risk management plans 
submitted by covered facilities. A final rule concerning distribution 
of OCA information was published on August 4, 2000 (65 FR 48107) and 
codified in 40 CFR chapter IV.
    In its January 6, 1999 (64 FR 963) amendments to the rule, EPA 
added mandatory and voluntary RMP data elements, specified the use of 
the North American Industry Classification System (NAICS), listed the 
applicable processes by NAICS code, required the five year accident 
history to include the weight percent of a toxic substance involved in 
a release and the NAICS code for the process involved a release, 
required an owner or operator to certify compliance with the 
regulation, established specific procedures for confidential business 
information and made technical clarifications to the regulation. In 
addition, EPA amended the procedure to calculate worst-case release 
scenarios for flammable substances in its regulations on May 26, 1999 
(64 FR 28695) so that worst-case release scenarios for liquified or 
refrigerated flammable substances can be calculated in the same manner 
as liquified or refrigerated toxic substances.
    The RMPs will be available to state and local governments and to 
the public. These regulations encourage sources to reduce the 
probability of accidentally releasing substances that have the 
potential to cause harm to public health and the environment. Further, 
the regulations stimulate dialog between industry and the public on 
ways to improve accident prevention and emergency response practices.
    Section 112(l) of the CAA and 40 CFR sections 63.91, 63.93 and 
63.95, authorize EPA, in part, to approve of State rules and programs 
to be implemented and enforced in place of the certain CAA 
requirements, including the chemical accident prevention provisions set 
forth at 40 CFR part 68. EPA promulgated the program approval 
regulations on November 26, 1993 (58 FR 62262) and subsequently amended 
these regulations on September 14, 2000 (65 FR 55810). An approvable 
State program must contain, among other criteria, the following 
elements: a demonstration of the state's authority and resources to 
implement and enforce regulations that are at least as stringent as the 
CAA section 112(r) regulations including an auditing strategy at least 
as stringent as the EPA regulation; a requirement that subject sources 
submit an RMP; procedures for reviewing RMPs; and procedures to provide 
technical assistance to subject sources, including small businesses.

II. DNREC's Accidental Release Prevention Program

    On June 7, 1999, DNREC requested EPA's approval of its Accidental 
Release Prevention Program to be implemented and enforced in place of 
the chemical

[[Page 30819]]

accident prevention provisions set forth at 40 CFR part 68. On August 
9, 1999, DNREC provided supplemental information for its request.
    The Delaware Extremely Hazardous Substances Risk Management Act 
(Chapter 77, Title 7 of the Delaware Code), as amended, became 
effective July 1, 1999. This amended law provides authority to DNREC to 
develop regulations and implement and enforce a risk management 
program. On January 11, 1999, DNREC's Accidental Release Prevention 
Regulation, as amended, became effective. This regulation adopts the 
Federal requirements found in 40 CFR part 68, last revised January 6, 
1998, with some adjustments and substitutions. Specifically, DNREC has:
    1. Modified the scope of the regulation, as described in 40 CFR 
section 68.1;
    2. Removed the definition of ``designated agency'', added a 
definition for ``Department'', and replaced all references in the 
Federal regulation to ``implementing agency'' with ``Department'';
    3. Removed irrelevant provisions in the Federal regulation, 
including 40 CFR sections 68.2, 68.215(c), and 68.120;
    4. Modified 40 CFR section 68.215(d) by replacing the terms 
``implementing agency'' and ``air permitting authority'' with ``the 
Department''; and
    5. Replaced 40 CFR section 68.220 with a more stringent auditing 
program that requires that all risk management plans be reviewed by 
DNREC within 6 months of receipt.
    In addition, DNREC's regulation specifies a risk management program 
inspection protocol and a procedure for resolving findings of 
noncompliance. DNREC's regulation includes additional requirements for 
sources not regulated by the Federal program. These provisions are 
located in section 6 of DNREC's Accidental Release Prevention 
Regulation. DNREC is not seeking Federal approval of the requirements 
in section 6 of its Accidental Release Prevention Regulation.
    DNREC's regulation was adopted prior to the changes that EPA made 
to its regulation on January 6, 1999, May 26, 1999, May 28, 1999 and 
March 13, 2000 (see description in Background section, above). Most of 
these changes are not included in the Delaware regulation. These 
changes, described in Section III. of this rulemaking, do not impact 
the stringency of DNREC's regulation and, thus, do not alter EPA's 
decision to approve of DNREC's rules.

III. EPA's Analysis of DNREC's Accidental Release Prevention 
Program

    The following paragraphs describe, in detail, the differences 
between the Federal regulation and DNREC's regulation. The scope of the 
Federal program, outlined in 40 CFR section 68. 1, has been 
incorporated into section 1 ``Statement of Authority'', section 2 
``Purpose'' and section 3 ``Policy and General Duty'' of DNREC's 
Accidental Release Prevention Regulation. These sections of DNREC's 
regulation:
    1. Cite DNREC's legislative and regulatory authority to implement 
the regulation and seek delegation of the Federal program;
    2. Describe the intent of the regulation with the overall goal of 
preventing catastrophic releases of regulated substances and protecting 
the public; and
    3. Outline the general duty of owners and operators of stationary 
sources to identify hazards, to design, operate and maintain safe 
facilities and to minimize the consequences of accidental releases.
    These provisions are no less stringent than the corresponding 
Federal requirements.
    DNREC has removed the definition of the term ``designated agency'' 
used in the Federal regulation, added the definition of ``Department'', 
and defined the term ``implementing agency'' used in the Federal 
regulation as ``Department''. The term ``designated agency'' in the 
Federal regulation refers to the state, local or Federal agency which 
is delegated authority by the state air permitting agency to verify 
that sources permitted under 40 CFR part 70 or 71 and subject to the 
Federal or state accidental release prevention requirements have 
submitted an RMP and have certified compliance with the requirements. 
In addition, the designated agency is tasked with ensuring that these 
sources are in compliance with the Federal or state accidental release 
prevention requirements. Because Delaware's air permitting authority, 
DNREC, is not delegating this authority to any other state, local or 
Federal agency, the ``designated agency'' term was removed from its 
regulation. DNREC will be responsible for implementing the 
aforementioned tasks which are described in detail in section 5.215(c) 
of DNREC's regulation. The term ``Department'' in DNREC's regulation 
has been defined as ``the Department of Natural Resources and 
Environmental Control''. The definition of ``implementing agency'' used 
in the Federal regulation has been replaced in DNREC's regulation with 
``Department'' since, on the effective date of this rulemaking, DNREC 
will be the state agency delegated the authority to implement an 
accidental release prevention program.
    In addition, DNREC has defined several terms which are not used in 
the Federal regulation. These terms are only used in section 6 of 
DNREC's regulation. DNREC is not seeking Federal approval of section 6 
of its regulation. DNREC has removed irrelevant sections of the Federal 
regulation from its regulation. Specifically, the ``stayed provisions'' 
of 40 CFR section 68.2 were removed from the DNREC regulation because 
the time limit of this stay has expired. DNREC has removed the 
permitting provisions of 40 CFR section 68.215(c), requiring the state 
permitting authority to reopen or reissue permits that do not contain 
the applicable accidental release prevention requirements, because all 
permits issued pursuant to Delaware's permitting program (approved 
under 40 CFR part 70) contain language incorporating the accidental 
release prevention requirements. Regardless, in accordance with the 
program approval requirements of 40 CFR section 63.95(b), DNREC is not 
required to have permitting provisions comparable to the provisions of 
40 CFR section 68.215(c).
    DNREC removed the auditing requirements of 40 CFR section 68.220 
and replaced these requirements with sections 7 and 8 of its 
regulation. Specifically, section 8(a) of DNREC's regulation requires 
DNREC to audit all RMPs within six months of the date that they are 
received by DNREC or posted by EPA on its website. This provision is 
clearly more stringent than the Federal regulation, 40 CFR sections 
68.220(a), (b) and (c), which requires the implementing agency to 
``periodically audit RMPS'' according to specific criteria.
    The Federal regulation specifically exempts stationary sources with 
a Star or Merit ranking under the Occupational Safety and Health 
Administration's (OSHA's) voluntary protection program from auditing 
where DNREC's regulation does not. Sections 8(b), (c), and (d) of 
DNREC's regulation grant DNREC access to the regulated stationary 
sources for auditing and outline the procedures for DNREC to notify the 
stationary source of its deficiencies in the program as a result of an 
audit and for the stationary source to respond to such deficiencies. 
Section 8(e) and (f) of DNREC's regulation outline the process that 
DNREC will use to issue a final determination of the audit and sets 
forth the provisions for identifying violations at a stationary source 
as a result of an audit. Sections

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8(b), (c), (d), (e) and (f) of DNREC's regulation are equivalent to 40 
CFR sections 68.220(d), (e), (f), (g) and (h).
    Section 8(g) of DNREC's regulation grants the public access to the 
preliminary determinations, responses and final determinations made as 
a result of an audit, however, in accordance with section 14(a) of 
DNREC's regulation, confidential business information and the 
identification of persons interviewed during an inspection can be 
withheld from the public. This provision is equivalent to 40 CFR 
section 68.220(i) and 40 CFR section 68.210(a), which requires that 
preliminary determinations, responses and final determinations made as 
a result of an audit and RMP information be available to the public 
consistent with 42 U.S.C. 7414(c). In addition to these provisions, 
under 40 CFR section 68.151, owners and operators of stationary sources 
required to submit an RMP can assert a claim of confidential business 
information under 40 CFR section 2.301. Section 8(h) of DNREC's 
regulation, outlining DNREC's right to exercise its enforcement 
investigation and information gathering authorities, is equivalent to 
40 CFR section 68.220.
    EPA has, therefore, determinated that in accordance with the 
program approval requirements of 40 CFR section 63.95(b)(4), DNREC's 
auditing strategy is no less stringent than the corresponding Federal 
requirement.
    Section 7 of DNREC's regulation provides a detailed description of 
DNREC's inspection procedures. There is no similar provision in the 
Federal regulation, however, this information provides the description 
necessary to fulfill DNREC's requirement to demonstrate its authority 
to implement and enforce the regulation, as required by 40 CFR section 
63.95(b)(1)(i) and (4).
    DNREC removed the provisions to petition EPA to modify the list of 
regulated substances identified in 40 CFR section 68.130, as described 
in 40 CFR section 68.120, from its regulations since DNREC does not 
have the authority to adopt future regulatory amendments or revisions. 
DNREC retained the provisions outlined in 40 CFR sections 68.150 
through 68.190 in sections 5.150 through 5.190 of its regulation. 
However, DNREC added the following language to section 5.150: ``Note: 
The data elements of the Plan are required to be submitted to EPA. The 
data elements of the plan are based upon 40 CFR 68.150 through 68.190 
dated July 1, 1997 reprinted here under Sections 5.150 through 5.190. 
It is the responsibility of the owner or operator to meet the existing 
EPA risk management plan data submittal requirements at the time of 
submission.'' These provisions are required by 40 CFR section 
63.95(b)(1)(ii).
    DNREC removed Tables 2 and 4 found in 40 CFR part 68 from its 
regulation. These tables present information identical to that 
presented in Tables 1 and 3 of 40 CFR part 68. DNREC has retained 
Tables 1 and 3 and has renamed them Tables 1 and 2, respectively. 
Appendix A of 40 CFR part 68 is Table 3 of DNREC's regulation.
    As stated earlier, DNREC's regulation does not include all of the 
modifications that EPA made to its regulation on January 6, 1999, May 
26, 1999, May 28, 1999 and March 13, 2000. DNREC made changes to its 
regulation in an attempt to conform with the January 6, 1999 
amendments, based upon EPA's proposed amendments of April 17, 1998 (63 
FR 19216). DNREC's changes included the addition of the definition of 
NAICS in section 5.3 and the requirements in sections 5.10(b)(1) and 
5.79(a). These provisions are identical to the amendments made in EPA's 
regulation 40 CFR sections 68.3, 68.10(b)(1) and 68.79(a), 
respectively. Section 5.42(b) of DNREC's regulation does not conform 
with EPA's amendments in 40 CFR sections 68.42(b)(3) and (4) which 
added requirements to the five year accident history. Sections 
5.160(b), 5.165(b), 5.170(b), 5.175(b) and 5.180(b) of DNREC's 
regulation do not conform with the provisions in 40 CFR sections 
68.160(b)(1), (7), (12), (14)-(18), 68.165(b)(2), 68.170(b), 68.175(b) 
and 68.180(b) of EPA's amended regulation which require the RMP to 
contain the method for obtaining and describing the location of 
longitude and latitude of the facility, the Title V permit number, 
certain optional data elements, and the weight percentage of toxic 
substance in a liquid mixture used in the offsite consequence analysis. 
In addition, DNREC did not include the provisions corresponding to 40 
CFR sections 68.150(e), 68.151, and 68.152 related to the procedures 
for claiming confidential business information.
    However, regardless of the differences between DNREC's regulation 
and the January 6, 1999 amendments to EPA's regulation, section 5.150 
of DNREC's regulation requires affected sources to submit RMPs which 
meet the existing EPA risk management plan data submittal requirements 
at the time of submission (see the description of section 5.150 of 
DNREC's regulation provided in Section II. of this document). 
Therefore, DNREC's regulation, when taken as a whole with respect to 
these provisions, is no less stringent than EPA's regulation.
    The May 26, 1999 amendments include changes to the procedures in 
calculating the worst-case scenario releases for liquified and 
refrigerated flammable gases. Because these amendments allow for a less 
conservative approach for calculating worst-case scenario releases than 
the previous provisions, DNREC's current regulation is no less 
stringent than EPA's regulation. EPA's May 28, 1999 amendment, which 
provided a stay of effectiveness until December 21, 1999, is no longer 
applicable. EPA's March 13, 2000 amendment to its regulation revised 
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. 
DNREC's current regulation, which does not incorporate these 
provisions, is no less stringent than EPA's regulation. In fact, 
because DNREC will regulate sources which use flammable substances as a 
fuel or hold flammable substances for sale as a fuel at a retail 
facility, DNREC's regulation will cover a larger universe of sources 
than the Federal regulation.
    DNREC's regulation includes additional requirements for sources not 
regulated by the Federal program. These provisions are located in 
section 6 of DNREC's Accidental Release Prevention Regulation. DNREC is 
not seeking Federal approval of the requirements in section 6 of 
DNREC's Accidental Release Prevention Regulation. EPA has separated 
these portions of DNREC's regulation from this approval, per the 
requirements of 40 CFR section 63.91(a)(3) and (f). Consequently, in 
accordance with 40 CFR section 63.91(c)(1)(iii), upon approval, section 
6 of DNREC's Accidental Release Prevention Regulation will remain 
enforceable only by the State.
    DNREC's regulation conforms to EPA's regulation regarding the 
distribution of off-site consequence analysis information, dated August 
4, 2000 (65 FR 48107) and codified in 40 CFR chapter IV, because it 
requires that disclosure of classified information be controlled by 
applicable laws, regulations or executive orders, per section 5.120 of 
DNREC's regulation.
    Based upon DNREC's program approval request and its pertinent laws 
and regulations, EPA has determined that such an approval is 
appropriate in that DNREC has satisfied the criteria of 40 CFR sections 
63.91, 63.93 and 63.95. The DNREC program has adequate and effective 
authorities, resources, and procedures in place for implementation and 
enforcement of sources subject to the CAA section 112(r)(7) 
requirements.

[[Page 30821]]

DNREC has the primary authority and responsibility to carry out all 
elements of the CAA section 112(r)(7) program for all sources covered 
in Delaware, including on-site inspections, record keeping reviews, 
audits and enforcement.
    DNREC's program to implement 112(r) of the CAA, has the authority 
and resources to educate subject sources through outreach programs; 
provide technical assistance; to review all risk management plans; to 
coordinate its efforts with other agencies and programs including the 
State Emergency Response Commission, the Local Emergency Planning 
Committees, and DNREC's air permitting program; and to adequately 
enforce its 112(r) program.
    Upon approval, DNREC's program will be administered by its 
Accidental Release Prevention Group. Although DNREC has primary 
authority and responsibility to implement and enforce the CAA section 
112(r)(7) requirements, nothing shall preclude, limit, or interfere 
with the authority of EPA to exercise its enforcement, investigatory, 
and information gathering authorities concerning this part of the Act.

IV. Final Action

    EPA is approving DNREC's Accidental Release Prevention Regulation 
sections 1 through 5 and sections 7 thorough 14, as amended, effective 
January 11, 1999, as equivalent to the CAA section 112(r)(7) 
requirements set forth in Chapter 40 of the Code of Federal Regulations 
(CFR) part 68 for affected sources in the State of Delaware. 
Accordingly, EPA is revising 40 CFR sections 63.14 and 63.99 to reflect 
the Federal enforceability of DNREC's regulation. DNREC's regulation 
adopts the federal requirements found in 40 CFR part 68, last revised 
January 6, 1998, with some adjustments and substitutions. EPA is 
publishing this rule without prior proposal because the Agency views 
this as a noncontroversial amendment and anticipates no adverse 
comment. The adjustments and substitutions made in the DNREC regulation 
are primarily non-substantive. The three substantive changes from the 
Federal regulation relate to auditing of the RMPs, calculating worst-
case scenarios for flammable substances and the applicability of the 
DNREC regulations to flammable substances when used as a fuel or held 
for sale at retail facilities. These three substantive changes are 
clearly more stringent than EPA's regulation. DNREC is required to 
audit all RMPs within six months of submittal. EPA's regulations do not 
have such a requirement. DNREC requires facilities to estimate worst-
case scenarios for liquified or refrigerated flammable substances in 
the same manner used for gaseous flammable substances (i.e., assuming 
the entire quantity of a liquified or refrigerated flammable substance 
vaporizes resulting in a vapor cloud explosion). EPA's regulation allow 
facilities to calculate worst-case scenarios for liquified or 
refrigerated flammable substances in the same manner used for liquified 
or refrigerated toxic substances which results in a less conservative 
estimate than DNREC's approach. Finally, because DNREC's regulation did 
not include EPA's exclusion of flammable substances used as a fuel or 
held for sale at retail facilities, DNREC will regulate a larger 
universe of facilities. Although EPA does not anticipate adverse 
comments on these changes, in the ``Proposed Rules'' section of today's 
Federal Register, EPA is publishing a separate document that will serve 
as the proposal to approve the program approval request if adverse 
comments are filed. This rule will be effective on August 7, 2001 
without further notice unless EPA receives adverse comment by July 9, 
2001. If EPA receives adverse comment, EPA will publish a timely 
withdrawal in the Federal Register informing the public that the rule 
will not take effect. EPA will address all public comments in a 
subsequent final rule based on the proposed rule. EPA will not 
institute a second comment period on this action. Any parties 
interested in commenting must do so at this time.

V. Administrative Requirements

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not 
have a substantial direct effect on one or more Indian tribes, on the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000), nor will it 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 (64 FR 43255, August 10, 1999), because it 
merely approves a state rule implementing a Federal standard, and does 
not alter the relationship or the distribution of power and 
responsibilities established in the Clean Air Act. This rule also is 
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), 
because it is not economically significant. In reviewing requests for 
rule approval under Clean Air Act section 112, EPA's role is to approve 
state choices, provided that they meet the criteria of the Clean Air 
Act. In this context, in the absence of a prior existing requirement 
for the State to use voluntary consensus standards (VCS), EPA has no 
authority to disapprove requests for rule approval under Clean Air Act 
section 112 for failure to use VCS. It would thus be inconsistent with 
applicable law for EPA, when it reviews a request for rule approval 
under Clean Air Act section 112, to use VCS in place of a request for 
rule approval under Clean Air Act section 112 that otherwise satisfies 
the provisions of the Clean Air Act. Thus, the requirements of section 
12(d) of the National Technology Transfer and Advancement Act of 1995 
(15 U.S.C. 272 note) do not apply. As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
rule, EPA has taken the necessary steps to eliminate drafting errors 
and ambiguity, minimize potential litigation, and provide a clear legal 
standard for affected conduct. EPA has complied with Executive Order 
12630 (53 FR 8859, March 15, 1988) by examining the takings 
implications of the rule in accordance with the ``Attorney General's 
Supplemental Guidelines for the Evaluation of Risk and Avoidance of 
Unanticipated Takings'' issued under the executive order. This rule 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

[[Page 30822]]

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by August 7, 2001. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this rule for the purposes of judicial 
review nor does it extend the time within which a petition for judicial 
review may be filed, and shall not postpone the effectiveness of such 
rule or action. This action, pertaining to the approval of Delaware's 
accidental release prevention program (Clean Air Act Section 112(r)), 
may not be challenged later in proceedings to enforce its requirements. 
(See section 307(b)(2).)

List of Subjects 40 CFR Part 63

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Incorporation by 
reference, Intergovernmental relations.

    Dated: May 16, 2001.
Thomas C. Voltaggio,
Acting Regional Administrator, Region III.


    40 CFR part 63 is amended as follows:

PART 63--[AMENDED]

    1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


    2. Section 63.14 is amended by adding paragraph (d)(3) to read as 
follows:


Sec. 63.14  Incorporation by Reference.

* * * * *
    (d) * * *
    (3)(i) Letter of June 7, 1999 to the U.S. Environmental Protection 
Agency Region 3 from the Delaware Department of Natural Resources and 
Environmental Control requesting formal full delegation to take over 
primary responsibility for implementation and enforcement of the 
Chemical Accident Prevention Program under Section 112(r) of the Clean 
Air Act Amendments of 1990.
    (ii) Delaware Department of Natural Resources and Environmental 
Control, Division of Air and Waste Management, Accidental Release 
Prevention Regulation, sections 1 through 5 and sections 7 through 14, 
effective January 11, 1999, IBR approved for Sec. 63.99(a)(8)(i) of 
subpart E of this part.

Subpart E--Approval of State Programs and Delegation of Federal 
Authorities

    3. Section 63.99 is amended by adding paragraph (a)(8) to read as 
follows:


Sec. 63.99  Delegated Federal Authorities

    (a) * * *
(8) Delaware
    (i) Affected sources must comply with the Delaware Department of 
Natural Resources and Environmental Control, Division of Air and Waste 
Management, Accidental Release Prevention Regulation, sections 1-5 and 
sections 7-14, January 11, 1999 (incorporated by reference as specified 
in Sec. 63.14). The material incorporated in the Delaware Department of 
Natural Resources and Environmental Control, Division of Air and Waste 
Management, Accidental Release Prevention Regulation, sections 1-5 and 
sections 7-14 pertains to owners and operators of stationary sources in 
the State of Delaware that have more than a threshold quantity of a 
regulated substance in a process, as described in section 5.10 of 
Delaware's regulation, and has been approved under the procedures in 
Secs. 63.93 and 63.95 to be implemented and enforced in place of 40 CFR 
part 68-Chemical Accident Prevention Provisions.
    (ii) [Reserved]

[FR Doc. 01-14079 Filed 6-7-01; 8:45 am]
BILLING CODE 6560-50-P