List of Regulated Substances and Thresholds for Accidental Release Prevention; Final RuleStay of Effectiveness

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-5516-6]

List of Regulated Substances and Thresholds for Accidental

Release Prevention; Final Rule--Stay of Effectiveness

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: On April 15, 1996, the Environmental Protection Agency (EPA)

proposed several modifications to provisions of the rule listing

regulated substances and establishing threshold quantities under

section 112(r) of the Clean Air Act as amended (List Rule Amendments).

The proposed List Rule Amendments, if promulgated in a final rule,

would clarify or establish that part 68 does not apply to several types

of processes and sources. In addition, EPA proposed, pursuant to Clean

Air Act section 301(a)(1), 42 U.S.C. 7601(a)(1), to stay the

effectiveness of provisions that would be affected by the proposed List

Rule Amendments, for so long as necessary to take final action on the

proposed List Rule Amendments. EPA received no adverse public comment

on the short-term stay. Today EPA is amending part 68 to promulgate the

stay, under which owners and operators of processes and sources that

EPA has proposed not be subject to part 68 would not become subject to

part 68 until EPA has determined whether to proceed with the List Rule

Amendments. The effect of today's action will be to give owners and

operators of sources affected by the proposed List Rule Amendments the

same amount of time to achieve compliance with the requirements of part

68 as owners and operators of other sources in the event that EPA does

not proceed with the List Rule Amendments as proposed.

EFFECTIVE DATE: June 20, 1996.

FOR FURTHER INFORMATION CONTACT: Vanessa Rodriguez, Chemical Engineer,

Chemical Emergency Preparedness and Prevention Office, Environmental

Protection Agency (5101), 401 M St. SW., Washington, DC 20460, (202)

260-7913.

SUPPLEMENTARY INFORMATION:

I. Background and Discussion

On April 15, 1996, EPA proposed amendments to regulations in 40 CFR

part 68 that, inter alia, list regulated substances and establish

threshold quantities for the accident prevention provisions under Clean

Air Act section 112(r). 61 FR 16598. Readers should refer to that

document for a complete discussion of the background of the rule

affected. The amendments proposed in that document (``List Rule

Amendments'') would, if promulgated, delete explosives from the list of

regulated substances, modify threshold provisions to exclude flammable

substances in gasoline and in naturally occurring hydrocarbon mixtures

prior to entry into a processing unit or plant, modify the threshold

provisions for other flammable mixtures, and clarify the definition of

stationary source with respect to transportation, storage incident to

transportation, and naturally occurring hydrocarbon reservoirs.

On the same date, EPA proposed to stay provisions of part 68 that

were affected by the proposed List Rule Amendments until such time as

EPA takes final action on the proposed List Rule Amendments. 61 FR

16606. EPA proposed a stay of 18 months because it believed such a

period would be sufficient to take final action on the List Rule

Amendments and believed that owners and operators affected by the List

Rule Amendments should have the same certainty about whether they are

subject to part 68 as owners and operators of other sources have when

they begin their regulatory compliance planning. In general, owners and

operators of sources subject to the ``Risk Management Program'' final

rule promulgated elsewhere in today's Federal Register, have three

years from today to achieve compliance with part 68.

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EPA received seven comment letters on the proposed stay; all

generally supported EPA's action. The Agency's response to comments is

contained below. Three commenters suggested that EPA should promulgate

a stay for so long as it takes the Agency to take final action on the

List Rule Amendments rather than for a certain (18 month) time period.

The 18 month time period was selected to be consistent with the time

period provided for final action on amendments discussed in the

settlement of litigation concerning the List Rule. EPA believes this

time will be sufficient to take any necessary action. Another commenter

expressed concern that the stay would not affect statutory deadlines

for seeking judicial review of the final Risk Management Program rule.

EPA has not taken final action on the Risk Management Program rule's

applicability to stationary sources, mixtures containing regulated

flammable substances, and regulated explosive substances that are

subject to today's stay. In the event that the Agency does not

promulgate the List Rule Amendments, the Agency intends to take final

action on applying the Risk Management Program to the sources,

mixtures, and substances to be regulated. In the absence of final

action on the Risk Management Program rule as it applies to these

sources, mixtures, and substances, a petition seeking review of that

rule would be premature.

Under the provisions of section 307(b)(1) of the Clean Air Act, a

petition for judicial review of this stay may only be filed in the

United States Court of Appeals for District of Columbia Circuit within

60 days of today's publication of this action.

II. Required Analyses

A. E.O. 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the

Agency must judge whether the regulatory action is ``significant,'' and

therefore subject to Office of Management and Budget (OMB) review and

the requirements of the Executive Order. The Order defines a

``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, jobs, the environment, public health or safety,

or state, local, or tribal government 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 this final rule is not a ``significant

regulatory action'' under the terms of Executive Order 12866 and

therefore is not subject to OMB review.

B. Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act of 1980, Federal

agencies must evaluate the effects of this final rule on small entities

and examine alternatives that may reduce these effects. EPA has

examined this final rule's potential effects on small entities as

required by the Regulatory Flexibility Act. It has determined that this

rule will have no adverse effect on small entities because it defers

the need for stationary sources to comply with current rule provisions

that EPA has proposed to amend; the amendments, if adopted, likely

would reduce the number of stationary sources subject to the accidental

release prevention requirements. Therefore, I certify that today's

final stay of effectiveness rule will not have a significant economic

effect on a substantial number of small entities.

C. Paperwork Reduction Act

This final rule does not include any information collection

requirements for OMB to review under the provisions of the Paperwork

Reduction Act of 1980, 44 U.S.C. 3501 et seq.

D. Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995,

signed into law on March 22, 1995, EPA must prepare a statement to

accompany any rule where the estimated costs to State, local, or tribal

governments in the aggregate, or to the private sector, will be $100

million or more in any one year. Under section 205, EPA must select the

most cost-effective and least burdensome alternative that achieves the

objective of the rule and is consistent with statutory requirements.

Section 203 requires EPA to establish a plan for informing and advising

any small governments that may be significantly impacted by the rule.

EPA has estimated that this rule does not include a Federal mandate

that may result in estimated costs of $100 million or more to either

State, local, or tribal governments in the aggregate, or to the private

sector.

E. Submission to Congress and the General Accounting Office

Under section 801(a)(1)(A) of the Administrative Procedures Act

(APA) as amended by the Small Business Regulatory Enforcement Fairness

Act of 1996, EPA submitted 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 General Accounting

Office prior to publication of the rule in today's Federal Register.

This rule is not a ``major rule'' as defined by section 804(2) of the

APA as amended.

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 24, 1996.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, Title 40, Chapter I,

Subchapter C, Part 68 of the Code of Federal Regulations is amended to

read as follows:

PART 68--ACCIDENTAL RELEASE PREVENTION PROVISIONS

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

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

2. In Subpart A, Sec. 68.2 is added to read as follows:

Sec. 68.2 Stayed Provisions.

(a) Notwithstanding any other provision of this part, the

effectiveness of the following provisions is stayed from March 2, 1994

to December 22, 1997.

(1) In Sec. 68.3, the definition of ``stationary source,'' to the

extent that such definition includes naturally occurring hydrocarbon

reservoirs or transportation subject to oversight or regulation under a

state natural gas or hazardous liquid program for which the state has

in effect a certification to DOT under 49 U.S.C. 60105;

(2) Section 68.115(b)(2) of this part, to the extent that such

provision requires an owner or operator to treat as a regulated

flammable substance:

(i) Gasoline, when in distribution or related storage for use as

fuel for internal combustion engines;

(ii) Naturally occurring hydrocarbon mixtures prior to entry into a

petroleum refining process unit or a natural gas processing plant.

Naturally occurring hydrocarbon mixtures include any of

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the following: condensate, crude oil, field gas, and produced water,

each as defined in paragraph (b) of this section;

(iii) Other mixtures that contain a regulated flammable substance

and that do not have a National Fire Protection Association

flammability hazard rating of 4, the definition of which is in the NFPA

704, Standard System for the Identification of the Fire Hazards of

Materials, National Fire Protection Association, Quincy, MA, 1990,

available from the National Fire Protection Association, 1 Batterymarch

Park, Quincy, MA 02269-9101; and

(3) Section 68.130(a).

(b) From March 2, 1994 to December 22, 1997, the following

definitions shall apply to the stayed provisions described in paragraph

(a) of this section:

Condensate means hydrocarbon liquid separated from natural gas that

condenses because of changes in temperature, pressure, or both, and

remains liquid at standard conditions.

Crude oil means any naturally occurring, unrefined petroleum

liquid.

Field gas means gas extracted from a production well before the gas

enters a natural gas processing plant.

Natural gas processing plant means any processing site engaged in

the extraction of natural gas liquids from field gas, fractionation of

natural gas liquids to natural gas products, or both. A separator,

dehydration unit, heater treater, sweetening unit, compressor, or

similar equipment shall not be considered a ``processing site'' unless

such equipment is physically located within a natural gas processing

plant (gas plant) site.

Petroleum refining process unit means a process unit used in an

establishment primarily engaged in petroleum refining as defined in the

Standard Industrial Classification code for petroleum refining (2911)

and used for the following: Producing transportation fuels (such as

gasoline, diesel fuels, and jet fuels), heating fuels (such as

kerosene, fuel gas distillate, and fuel oils), or lubricants;

separating petroleum; or separating, cracking, reacting, or reforming

intermediate petroleum streams. Examples of such units include, but are

not limited to, petroleum based solvent units, alkylation units,

catalytic hydrotreating, catalytic hydrorefining, catalytic

hydrocracking, catalytic reforming, catalytic cracking, crude

distillation, lube oil processing, hydrogen production, isomerization,

polymerization, thermal processes, and blending, sweetening, and

treating processes. Petroleum refining process units include sulfur

plants.

Produced water means water extracted from the earth from an oil or

natural gas production well, or that is separated from oil or natural

gas after extraction.

[FR Doc. 96-14636 Filed 6-19-96; 8:45 am]

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