Accidental Release Prevention Requirements: Risk Management Programs Under Clean Air Act Section 112(r)(7); Amendments to the Worst-Case Release Scenario Analysis for Flammable Substances

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 68

[FRL-6348-1]

Accidental Release Prevention Requirements: Risk Management

Programs Under Clean Air Act Section 112(r)(7); Amendments to the

Worst-Case Release Scenario Analysis for Flammable Substances

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is planning to amend the Chemical Accident Prevention

Provisions, codified in 40 CFR part 68. The revisions concern the

worst-case release scenario analysis for regulated flammable

substances, 40 CFR 68.25. These revisions would allow the regulated

community to treat regulated flammable substances in the same manner as

regulated toxic substances for determining the quantity released when

conducting a worst-case release scenario.

Elsewhere in the Final Rule section of today's Federal Register,

EPA is issuing these revisions as a direct final rule. EPA views this

as a noncontroversial revision and anticipates no adverse comment. A

detailed rationale for this revision is in the preamble to the direct

final rule. If no relevant adverse comments are received in response to

this proposed rule, no further action is needed on this notice. If EPA

receives relevant adverse comments, EPA will withdraw the direct final

rule and it will not take effect. EPA will address public comments in a

subsequent final rule based on this proposed rule. EPA will not

institute a second comment period on this action. Any parties

interested in commenting must do so at this time. This action

implements a settlement agreement between EPA and the American

Petroleum Institute.

As a result of a settlement agreement with the Chlorine Institute,

EPA is clarifying its interpretation of Clean Air Act sections 112(l)

and 112(r)(11), as they relate to Department of Transportation

requirements under the Federal Hazardous Materials Transportation Law.

DATES: Comments. Comments on the regulations proposed by this action

must be received by June 16, 1999, unless a hearing is requested by

June 1, 1999. If a hearing is requested, written comments must be

received by July 1, 1999.

ADDRESSES: Comments. All written comments must be identified with the

appropriate docket number (Docket No. A-99-15) and must be submitted to

EPA Air Docket, Waterside Mall, Room M1500, 401 M Street, SW,

Washington, D.C., 20460, telephone 202-260-7548.

Public Hearing. Persons interested in presenting oral testimony or

inquiring as to whether a hearing is to be held should notify the

person(s) listed in FOR FURTHER INFORMATION CONTACT section.

Docket. Docket No. A-99-15, containing supporting information used

to develop the proposal, is available for public inspection and copying

from 8:00 a.m. to 5:30 p.m., Monday through Friday, excluding Federal

holidays at EPA's Air Docket at the above address.

FOR FURTHER INFORMATION CONTACT: Sicy Jacob or John Ferris, Chemical

Emergency Preparedness and Prevention Office, Environmental Protection

Agency (5104), 401 M Street SW, Washington, D.C., 20460, (202) 260-7249

or (202) 260-4043, respectively; or the Emergency Planning and

Community Right-to-Know Hotline at 800-424-9346 (in the Washington, DC

metropolitan area, (703) 412-9810). You may wish to visit the Chemical

Emergency Preparedness and Prevention Office (CEPPO) Internet site, at

www.epa.gov/ceppo.

SUPPLEMENTARY INFORMATION: In this document, EPA is proposing

amendments to the regulations in 40 CFR part 68 for the accident

prevention provisions under Clean Air Act section 112 (r),

specifically, Sec. 68.25(e), worst-case scenario analysis for

flammables. The rule revisions are presented and discussed in detail in

a direct final rule published in the Final Rules section of this

Federal Register.

The chemical accident prevention provisions, also known as the risk

management program regulations (``RMP rule'') were promulgated on June

20, 1996 (61 FR 31668). Stationary sources subject to the RMP rule are

required to submit a risk management plan on their hazard assessment

including off-site consequences, accident history, the prevention

program and the emergency response program, to EPA by June 21, 1999.

Among other requirements, the RMP rule requires covered stationary

sources to analyze at least one worst-case release scenario for

regulated flammables and at least one for regulated toxic substances

that are present in a process at the stationary source above the

threshold quantity.

In the final rule issued on June 20, 1996, Sec. 68.25(e) states

that when conducting a worst-case scenario analysis for flammables, the

owner or operator shall assume that the quantity of the substance, as

determined under paragraph (b) of Sec. 68.25, vaporizes, resulting in a

vapor cloud explosion. This approach applies to all listed flammable

substances regardless of whether the flammable substance is normally a

liquid or liquefied by refrigeration. In litigation filed by the

American Petroleum Institute (API), API suggested that flammable

liquids and those liquified by refrigeration should be treated, for

modeling purposes, in the same manner as for toxic liquids or those

liquified by refrigeration, as stated in Sec. 68.25 (c) and (d). EPA

agreed that flammable liquids (including those liquified by

refrigeration) could be appropriately treated in that manner. EPA is

thus proposing these changes to Sec. 68.25.

The proposed revisions would allow stationary sources to model

releases of flammable substances in the same manner as toxics. EPA is

seeking comment on these proposed revisions. EPA considers these

revisions to be noncontroversial and anticipates no adverse comments.

If EPA timely receives significant, adverse comments, EPA will publish

a document in the Federal Register withdrawing the direct final rule.

In that event, all public comments received will be treated as comments

on this proposed rule and will be addressed in a subsequent final

rulemaking document. EPA will not institute a second comment period on

this document. Any parties interested in commenting on these revisions

should do so at this time.

I. 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, as well as the public

version, has been established for this rulemaking under Docket No. A-

99-15, 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.

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B. Executive Order 12866

Under Executive Order 12866, (58 Federal Register 51,735 (October

4, 1993)) the Agency must determine whether the regulatory action is

``significant'' and therefore subject to OMB review and the

requirements of the Executive Order.

The Order defines ``significant regulatory action'' as one that is

likely to result in a rule that may: (1) Have an annual effect on the

economy of $100 million or more or adversely affect in a material way

the economy, a sector of the economy, productivity, competition, jobs,

the environment, public health or safety, or State, local, or tribal

governments or communities; (2) Create a serious inconsistency or

otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user

fees, or loan programs or the rights and obligations of recipients

thereof; or (4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the Executive Order.''

It has been determined that today's action is not a ``significant

regulatory action'' under the terms of E.O. 12866 and is, therefore,

not subject to OMB review.

C. Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is

not required by statute and that creates a mandate upon a State, local

or tribal government, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by those

governments, or EPA consults with those governments.

If EPA complies by consulting, Executive Order 12875 requires EPA

to provide to the Office of Management and Budget a description of the

extent of EPA's prior consultation with representatives of affected

State, local and tribal governments, the nature of their concerns, any

written communications from the governments, and a statement supporting

the need to issue the regulation.

In addition, Executive Order 12875 requires EPA to develop an

effective process permitting elected officials and other

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

meaningful and timely input in the development of regulatory proposals

containing significant unfunded mandates.''

Today's rule does not create a mandate on State, local or tribal

governments. This rule change does not impose any enforceable duties on

these entities. Instead, it merely provides an alternative approach for

calculating the quantity released in the worst-case scenario.

Stationary sources already subject to the rule may use this approach

for conducting worst-case release scenarios for flammable substances in

the same manner as toxic substances. Accordingly, the requirements of

section 1(a) of Executive Order 12875 do not apply to this rule.

D. Executive Order 13045

Executive Order 13045: ``Protection of Children from Environmental

Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies

to any rule that: (1) is determined to be ``economically significant''

as defined under E.O. 12866, and (2) concerns an environmental health

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

disproportionate effect on children. If the regulatory action meets

both criteria, the Agency must evaluate the environmental health or

safety effects of the planned rule on children, and explain why the

planned regulation is preferable to other potentially effective and

reasonably feasible alternatives considered by the Agency.

This action is not subject to the E.O. 13045 because it is not

``economically significant'' as defined in E.O. 12866, and because it

does not involve decisions based on environmental health or safety

risks.

E. 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 rule change merely

provides an alternative approach for calculating the quantity released

in the worst-case scenario. Stationary sources already subject to the

rule may use this approach for conducting worst-case release scenarios

for flammable substances in the same manner as toxic substances.

Accordingly, the requirements of section 3(b) of Executive Order 13084

do not apply to this rule.

F. Regulatory Flexibility

EPA has determined that it is not necessary to prepare a regulatory

flexibility analysis in connection with this proposed rule and that

this rule will not have a significant negative economic impact on small

entities. This rule change does not require any stationary source to

report additional elements in the risk management plan. It merely

provides an alternative approach for stationary sources already subject

to the rule to use for conducting worst-case release scenarios for

flammable substances. Therefore, I certify that this action will not

have a significant economic impact on a substantial number of small

entities.

G. Paperwork Reduction

The Office of Management and Budget (OMB) has approved the

information collection requirements contained in this rule under the

provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and

has assigned OMB control number 2050-0144.

This rule does not include any new information collection,

requirements for OMB review under the provisions of the Paperwork

Reduction Act. This revision of the rule does not impose any new

reporting, recordkeeping, or third party reporting requirements on

stationary sources, it merely provides an alternative approach for

sources to calculate the quantity released in the worst-case scenario

for flammables. The Office of Management and Budget (OMB) has approved

the information collection requirements contained in this rule under

the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

and has assigned OMB control number 2050-0144.

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,

[[Page 28704]]

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. EPA is

amending the table in 40 CFR part 9 of currently approved ICR control

numbers issued by OMB for various regulations to list the information

requirements contained in this final rule.

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.

EPA has determined that this rule does not contain a Federal

mandate that may result in expenditures of $100 million or more for

state, local, and tribal governments, in the aggregate, or the private

sector in any one year. Today's action is not subject to the

requirements of sections 202 and 205 of the Unfunded Mandates Act.

Today's rule contains no Federal mandates (under the regulatory

provisions of Title II of the UMRA) for state, local, or tribal

governments or the private sector. This rule change does not require

any stationary sources to report additional elements in the risk

management plan. It merely provides an alternative approach for

stationary sources already subject to the rule to use for conducting

worst-case release scenarios for flammable substances.

In addition, for the same reasons, EPA has determined that this

rule contains no regulatory requirements that might significantly or

uniquely affect small governments.

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, business practices) that are developed or adopted

by voluntary consensus standards bodies. The NTTAA requires EPA to

provide Congress, through OMB, explanations when the Agency decides not

to use available and applicable voluntary consensus standards.

This action does not involve technical standards. Therefore, EPA

did not consider the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 68

Environmental protection, Chemicals, Chemical accident prevention.

Dated: May 17, 1999.

Carol M. Browner,

Administrator.

[FR Doc. 99-12937 Filed 5-24-99; 10:57 am]

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