List of Regulated Substances and Thresholds for Accidental Release Prevention; Stay of Effectiveness for Flammable Hydrocarbon Fuels

SUMMARY: Pursuant to Clean Air Act (CAA) section 301(a)(1), 42 U.S.C.

7601(a)(1), the Agency is providing a six-month stay of the

effectiveness of its Risk Management Plan (RMP) rule under CAA section

112(r) as it applies to processes containing no more than 67,000 pounds

of certain flammable hydrocarbon fuels.

Elsewhere in the Proposed Rules section of today's Federal

Register, EPA is proposing an exemption that mirrors the terms of

today's stay. This exemption would result in such processes no longer

being subject to the Chemical Accident Prevention requirements of 40

CFR part 68. The exemption would not apply to processes that

manufacture the fuel, contain above a threshold quantity of another

(non-fuel) regulated substance, or processes connected to, or co-

located with, another (non-fuel) covered process at the facility.

This action provides a temporary stay while EPA completes

rulemaking on the proposed exemption. While this stay is in effect,

processes that would qualify for the proposed exemption are not subject

to part 68. Today's stay is in addition to, and does not affect, the

stay of the rule for propane processes recently entered by the U.S.

Court of Appeals for the D.C. Circuit.

EFFECTIVE DATE: June 21, 1999.

FOR FURTHER INFORMATION CONTACT: John Ferris, Chemical Engineer,

Chemical Emergency Preparedness and Prevention Office (5104), 401 M

Street S.W., Washington, DC 20460 (202) 260-4043.

SUPPLEMENTARY INFORMATION:

I. Background and Discussion

In Part IV of today's Federal Register, EPA is proposing amendments

to the regulations at 40 CFR part 68, establishing a chemical accident

prevention program under Clean Air Act section 112(r). Readers should

refer to that notice of proposed rulemaking for a complete discussion

of the RMP regulations and the proposed amendment.

The proposed amendment, if promulgated, would add an exemption to

40 CFR 68.115 for processes containing up to 67,000 pounds of a listed

flammable hydrocarbon fuel (e.g. propane, butane, ethane, etc.),

provided that the process does not contain another listed substance

over a threshold quantity, is not manufacturing the fuel, and is not

co-located or interconnected to another (non-fuel) covered process. As

explained in the notice proposing the exemption, EPA believes that such

processes probably do not present risks warranting application of the

comprehensive accident prevention requirements of the RMP rule.

However, it is unlikely that EPA will be able to take final action on

this proposal by June 21, 1999, the date by which stationary sources

are required to comply with the RMP rule's requirements, including

submission of risk management plans. This action provides a stay of the

effectiveness of the rule's requirements for processes that would be

affected by the proposed amendments, if promulgated, until December 21,

1999. If EPA does not promulgate the provisions of today's proposed

rule by then, any source that has a process that would have been

subject to the rule but for today's stay, must comply with the

provisions of the RMP rule for the process by December 21, 1999. For

sources that have multiple processes, only some of which are affected

by today's stay, they must comply with the RMP rule by the June 21,

1999 deadline for the processes not affected.

EPA is providing this temporary stay because the Agency is

conducting a rulemaking to determine whether the processes and sources

affected by today's proposed rule should be subject to RMP

requirements. EPA will need to evaluate comments on the proposed rule

before taking final action. EPA believes that it has good cause to

provide this temporary stay to provide a short period of time for the

Agency to decide whether or not to promulgate today's proposed changes.

EPA believes that requiring stationary sources to file risk management

plans for the processes affected by today's proposal would pose an

undue burden on these stationary sources while the Agency is deciding

whether such reporting are necessary. EPA also believes that today's

temporary stay will not significantly affect public health or welfare

because, as explained in the proposal, the processes eligible for the

stay meet criteria indicating that such processes are unlikely to pose

a significant off-site risk. Furthermore, this temporary stay does not

affect a source's responsibilities under CAA section 112(r)(1), the

general duty clause.

II. Related Litigation

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 recently entered

a temporary stay of the RMP rule as it applies to propane (The Chlorine

Institute, Inc. v. Environmental Protection Agency, 96-1279 and

consolidated cases (Nos. 96-1284, 96-1288, and 96-1290), Order of April

27, 1999). Until further order of the Court, the RMP rule is not in

effect with respect to propane. Any stationary source, or process at a

stationary source, subject to the RMP rule only by virtue of propane is

not, until further notice, 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.

EPA understands the Court's order granting a temporary stay as

reaching not only propane in its pure form, but propane mixtures

commonly sold as liquefied petroleum gas. The pleadings considered by

the Court in entering its stay did not distinguish between pure propane

and mixtures commonly sold as ``propane.'' Accordingly, EPA believes

the Court's order should not be read as making such a distinction.

It is important to note that the terms of the Court's stay are

different in several respects from those of this temporary stay being

issued by EPA. The Court's stay applies only to propane, while the

temporary stay applies to all flammable hydrocarbon fuels, including

propane. The Court's stay includes no caps or conditions; the temporary

stay includes a cap and other conditions for eligibility. Finally, the

Court's stay will last until further order of the Court. The temporary

stay lasts only until December 21, 1999. If the Court lifts its stay

before then, propane, along with the other flammable hydrocarbon fuels,

would be exempt from the RMP rule in accordance with the terms of the

temporary stay.

II. 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

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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. A99-

18, 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 a 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; rather, it stays the effective date for certain

processes affected by today's proposed rule. This action does not

increase, nor decrease, the burden associated with 40 CFR part 68.

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 final rule is not subject to the Executive Order because it is

not economically significant as defined in E.O. 12866, and because the

Agency does not have reason to believe the environmental health or

safety risks addressed by this action present a disproportionate risk

to children. This rule stays the effective date for certain processes

effected by today's proposed rule. This action does not increase, nor

decrease, the burden associated with 40 CFR part 68.

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 stays the effective

date for certain processes affected by today's proposed rule. This

action does not increase, nor decrease, the burden associated with 40

CFR part 68. 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 final rule because it is

not subject to the Regulatory Flexibility Act. EPA has also determined

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

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

report additional elements in the RMP; instead, this rule stays the

effective date for certain processes effected by today's proposed rule.

This action does not increase, nor decrease, the burden associated with

40 CFR part 68.

G. Paperwork Reduction

This rule does not include any information collection requirements

for OMB to review under the provisions of the Paperwork Reduction Act.

This rule stays the effective date for certain processes effected by

today's proposed rule. This action does not increase, nor decrease, the

burden associated with 40 CFR part 68.

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

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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.

EPA has determined that this rule contains no regulatory

requirements that might significantly or uniquely affect small

governments. This rule stays the effective date for certain processes

effected by today's proposed rule. This action does not increase, nor

decrease, the burden associated with 40 CFR part 68.

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.

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. Section 808 allows the issuing agency to make a good

cause finding that notice and public procedure is impracticable,

unnecessary or contrary to the public interest. This determination must

be supported by a brief statement. 5 U.S.C. 808(2). As stated

previously, EPA has made such a good cause finding, including the

reasons therefor, and established an effective date of June 21, 1999.

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 action is not a major rule as

defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 68

Environmental protection, Chemicals, Chemical accident prevention.

Dated: May 21, 1999.

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--CHEMICAL ACCIDENT PREVENTION PROVISIONS

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

Authority: 42 U.S.C. 7412(r), 7601(a)(1), 7661-7661f.

2. Section 68.2 is amended by adding paragraph (c) to read as

follows:

Sec. 68.2 Stayed provisions.

* * * * *

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

effectiveness of part 68 is stayed from June 21, 1999 to December 21,

1999 with respect to regulated flammable hydrocarbon substances when

the substance is intended for use as a fuel and does not exceed 67,000

pounds in a process that is not manufacturing the fuel, does not

contain greater than a threshold quantity of another regulated

substance, and is not collocated or interconnected to another covered

process.

[FR Doc. 99-13539 Filed 5-27-99; 8:45 am]

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