Request for Delegation of the Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7): State of Florida

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-6166-9]

Request for Delegation of the Accidental Release Prevention

Requirements: Risk Management Programs Under Clean Air Act Section

112(r)(7): State of Florida

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: The purpose of this direct final rule is to announce that on

June 19, 1998, the State of Florida, Department of Community Affairs

(DCA), Division of Emergency Management (DEM), requested section 112(r)

program delegation for all applicable Florida sources, except those

with propane as their only regulated substance. If no adverse comments

are received, EPA is approving this delegation request and this direct

final rule will serve as formal delegation of the section 112(r)

program for all applicable sources except those with propane as their

only regulated substance. EPA is publishing a parallel proposed rule

contained in the Proposed Rules section of this Federal Register.

DATES: This direct final rule will become effective on December 21,

1998. The direct final rule will become effective without further

notice unless EPA receives no adverse written comments on or before

November 19, 1998. Should the EPA receive such comments, it will

publish a timely document withdrawing this rule.

ADDRESSES: Comments on this action should be addressed concurrently to:

Michelle P. Thornton, U.S. Environmental Protection Agency, Region 4,

61 Forsyth Street, SW, Atlanta, Georgia 30303-3104,

[email protected]

Eve Rainey, Florida Division of Emergency Management, 2555 Shumard

Oak Boulevard, Tallahassee, Florida 32399-2140,

[email protected]

Copies of Florida's section 112(r) delegation request letter and

accompanying documentation are available for public review during the

hours of 8:00 a.m. and 4:30 p.m., Monday through Friday, at the

addresses listed above. If you would like to review these documents,

please make an appointment with the appropriate office at least 24

hours before visiting day.

FOR FURTHER INFORMATION CONTACT: Michelle P. Thornton, U.S.

Environmental Protection Agency, Region 4, Air, Pesticides and Toxics

Management Division, Air and Radiation Technology Branch, 30303-3104

(telephone 404 562-9121), [email protected] or

Eve Rainey, Florida Division of Emergency Management, 2555 Shumard

Oak Boulevard, Tallahassee, Florida 32399-2140, (telephone 850 413-

9914) [email protected]

SUPPLEMENTARY INFORMATION: If no adverse comments are received by

November 19, 1998, this direct final rule will automatically go into

effect on December 21, 1998. Should the Agency receive such comments,

it will publish a timely document withdrawing this direct final rule

and will review and publish the comments in a subsequent document. If

no relevant adverse comments on any provision of this direct final rule

are timely filed, then it will become effective on December 21, 1998

and the State of Florida DCA/DEM will receive full delegation of

authority to implement and enforce the requirements of the section

112(r) program for all applicable sources in its jurisdiction, except

sources with propane as their only regulated substance.

On June 20, 1996, EPA published risk management program

regulations, mandated under the accidental release prevention

provisions of the Clean Air Act (CAA). These regulations require owners

and operators of stationary sources subject to the regulations to

submit risk management plans (RMPs) by June 21, 1999, to a central

location specified by EPA. The plans will be available to State and

local governments and the public. These regulations will encourage

sources to reduce the probability of accidentally releasing substances

that have the potential to cause harm to public health and the

environment and will stimulate dialogue between industry and the public

to improve accident prevention and emergency response practices.

Section 112(l) of the CAA and 40 CFR part 63, subpart E, authorize

EPA, in part, to delegate authority to any state or local agency which

submits an approvable program for implementation and enforcement of

requirements for the prevention and mitigation of accidental releases

of hazardous air pollutants. The State's program must contain adequate

authorities, adequate resources for

[[Page 55955]]

implementation, and an expeditious compliance schedule for enforcing

standards as detailed in 40 CFR sections 63.91 and 63.95.

On May 24, 1998, Chapter 22, Part IV, Florida Statutes, the Florida

Accidental Release Prevention and Risk Management Planning Act (Chapter

98-193, Laws of Florida) became effective. This law adopts the federal

requirements found in section 112(r) of the CAA of 1990 for specified

sources and the corresponding Risk Management Program regulations for

use with the Florida program.

On June 19, 1998, the State of Florida, Department of Community

Affairs (DCA), Division of Emergency Management (DEM), requested

section 112(r) program delegation for all applicable Florida sources,

except those with propane as their only regulated substance. The State

acknowledges and accepts that propane sources will not be under the

jurisdiction of the Florida DCA/DEM and will default to EPA Region 4

for implementation and enforcement.

Through the State's legislative budget process, the Florida

Accidental Releases Prevention/Risk Management Planning program

received two full time equivalent (FTE) professional positions and more

than $140,000 for initial program year activities. The state law also

includes a fee system with amounts ranging from approximately $100 to

$1,000 per process. Section 112(r) activities will also be integrated

into an existing Hazardous Materials Planning Program which supports 13

FTEs and has contractual relationships with the State's eleven Local

Emergency Planning Committees (LEPCs) and sixty-seven emergency

management program offices.

Upon delegation, the State's program will be administered by the

DCA/DEM, which is also responsible for implementation of the Federal

Emergency Planning and Community Right-To-Know Act (EPCRA) program in

the state. The DEM serves as staff to the State Emergency Response

Commission (SERC) and has an established relationship with Florida's

eleven LEPCs. Representatives on the SERC include delegates from the

departments of Environmental Protection (DEP) and Labor and Employment

Security (DLES). Florida's section 112(r) program will have technical

assistance, outreach and education as its cornerstone with an emphasis

on assisting sources with compliance and facilitating prevention

discussions with the public.

After a thorough review of Florida's delegation request and its

pertinent laws, rules, and regulations, the Region has determined that

such a delegation is appropriate in that Florida has satisfied the

criteria of 40 CFR sections 63.91 and 63.95, and has adequate and

effective authorities, resources, and procedures in place for

implementation and enforcement of non-major and major sources subject

to the section 112(r) RMP Federal standards. The State has the primary

authority and responsibility to carry out all elements of the section

112(r) program for all sources, except propane, covered in the State,

including on-site inspections, record keeping reviews, audits and

enforcement.

Administrative Requirements

A. Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from review under Executive Order (E.O.) 12866,

entitled Regulatory Planning and Review.

B. Executive Order 12875

Under E.O. 12875, EPA may not issue a regulation that is not

required by statute and that creates a mandate upon a state, local, or

tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments. If the mandate is unfunded, EPA must provide to the Office

of Management and Budget a description of the extent of EPA's prior

consultation with representatives of affected state, local, and tribal

governments, the nature of their concerns, copies of written

communications from the governments, and a statement supporting the

need to issue the regulation. In addition, E.O. 12875 requires EPA to

develop an effective process permitting elected officials and other

representatives of state, local, and tribal governments ``to provide

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.'' Today's rule does not

create a mandate on state, local or tribal governments. The State of

Florida has voluntarily requested delegation of this program. The state

will be implementing its own pre-existing Accidental Releases

Prevention/Risk Management Planning program as described in the

Supplemental Information Section of this notice. Accordingly, the

requirements of section 1(a) of E.O. 12875 do not apply to this rule.

C. Executive Order 13084

Under E.O. 13084, EPA may not issue a regulation that is not

required by statute, that significantly affects 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. If the mandate is unfunded,

EPA must 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, 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. Instead, the state

of Florida will be implementing and enforcing this program.

Accordingly, the requirements of section 3(b) of E.O. 13084 do not

apply to this rule.

D. Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., the EPA

must consider the paperwork burden imposed by any information

collection request in a proposed or final rule. This rule will not

impose any new information collection requirements.

E. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA, Public Law 96-354, September

19, 1980) requires Federal agencies to give special consideration to

the impact of regulation on small businesses. The RFA specifies that a

regulatory flexibility analysis must be prepared if a screening

analysis indicates a regulation will have significant impact on a

substantial number of small entities. This direct final rule will not

have a significant economic impact on a substantial number of small

entities.

F. Unfunded Mandates

EPA has determined that the approval action promulgated 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. This Federal action approves pre-

existing requirements under State or local law, and imposes no new

requirements. Accordingly, no additional costs to State, local, or

tribal governments, or to the private sector, result from this action.

[[Page 55956]]

G. 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. A major rule cannot

take effect until 60 days after it is published in the Federal

Register. This action is not a ``major rule'' as defined by 5 U.S.C.

804(2). This rule will be effective December 21, 1998, unless EPA

receives adverse written comments on or before November 19, 1998.

H. 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

proposed rulemaking does not involve technical standards. Instead, it

merely approves the Florida's pre-existing Accidental Release

Prevention Program. Therefore, EPA is not considering the use of any

voluntary consensus standards.

I. 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

Executive Order 12866, and (2) concerns an environmental health or

safety risk that EPA has reason to believe may have a disproportionate

effect on children. If the regulatory action meets both criteria, the

Agency must evaluate the environmental health or safety effects of the

planned rule on children, and explain why the planned regulation is

preferable to other potentially effective and reasonably feasible

alternatives considered by the Agency.

This rule is not subject to E.O. 13045 because it is not an

economically significant rule as defined by E.O. 12866, and because it

does not involve decisions based on environmental health or safety

risks.

Dated: September 9, 1998.

A. Stanley Meiburg,

Acting Regional Administrator, Region 4.

[FR Doc. 98-27926 Filed 10-19-98; 8:45 am]

BILLING CODE 6560-50-P