List of Regulated Substances and Thresholds for Accidental Release Prevention; Flammable Hydrocarbon Fuel Exemption

SUMMARY: The Environmental Protection Agency (EPA) is proposing to

modify the rule listing regulated substances and threshold quantities

for the Risk Management Program (RMP) issued under section 112(r) of

the Clean Air Act as amended. EPA is proposing that a process

containing 67,000 pounds or less of a listed flammable hydrocarbon

fuel, and no other listed substance above its threshold quantity, be

exempt from threshold quantity determination. The exemption will not

apply to processes that manufacture the fuel, contain more than a

threshold quantity of another (non-fuel) regulated substance, or

processes connected to, or collocated with, another covered process at

the facility. EPA believes this proposed change will exempt from RMP

coverage numerous small fuel users (e.g., farms, restaurants, hotels,

etc.) that were not intended to be subject to the RMP requirements and

better focus accident prevention activities on stationary source

operations that present a greater risk to the community.

DATES: Comments. Comments must be submitted on or before June 28, 1999

unless a hearing is requested by June 2, 1999. If a hearing is

requested, written comments must be received by July 12, 1999.

Public Hearing. Anyone requesting a public hearing must contact EPA

no later than June 2, 1999. If a hearing is held, it will take place on

June 14, 1999 at 9:30 am, at the location indicated below.

ADDRESSES: Comments. Comments should be mailed or submitted to:

Environmental Protection Agency, Air Docket (6102), Attn: Docket No. A-

99-18, Waterside Mall, 401 M St. SW, Washington, DC 20460. Comments

must be submitted in duplicate. Comments may be submitted on disk in

WordPerfect or Word formats. If a public hearing is held, written

testimony should be submitted in duplicate at the time of the hearing.

Public Hearing. If a public hearing is held, it will be held at

Waterside Mall, 401 M St. SW, Washington, DC 20460, in the Conference

Center in a room to be designated. Persons interested in attending the

hearing or wishing to present oral testimony should notify by telephone

James Belke (see FOR FURTHER INFORMATION CONTACT).

Docket. The docket for this rulemaking is A-99-18. This proposed

rule would amend a final rule, the docket for which is A-91-74. The

docket may be inspected between 8:00 am and 5:30 pm, Monday through

Friday at EPA's Air Docket, Room M1500, Waterside Mall, 401 M St. SW,

Washington, DC 20460; telephone (202) 260-7548. A reasonable fee may be

charged for copying.

FOR FURTHER INFORMATION CONTACT: James Belke, Chemical Engineer,

Chemical Emergency Preparedness and Prevention Office, Environmental

Protection Agency, 401 M St. SW (5104), Washington, DC 20460, (202)

260-7314.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background

A. Statutory Authority

B. Background

C. Summary of the List Rule

D. Related Litigation

II. Discussion of Proposed Modifications and Alternatives

A. Characteristics of Fuel Use that Reduce the Likelihood of

Accidental Release

B. Characteristics of Fuel Use that Reduce the Likelihood of

Severe Offsite Consequences

C. Alternative Approaches

D. Other Issues

III. Summary of Proposed Revisions to the Rule

IV. Administrative Requirements

A. Docket

B. Public Hearing and Written Comments

C. Executive Order 12866

D. Executive Order 12875

E. Executive Order 13045

F. Executive Order 13084

G. Regulatory Flexibility

H. Paperwork Reduction

I. Unfunded Mandates Reform Act

J. National Technology Transfer and Advancement Act

I. Introduction and Background

A. Statutory Authority

This notice of proposed rulemaking (NPRM) is being issued under

sections 112(r) and 301 of the Clean Air Act (CAA or Act) as amended

(42 U.S.C. 7412(r) and 7601).

B. Background

CAA section 112(r) contains requirements related to the prevention

and mitigation of accidental chemical releases. The accidental release

provisions focus on those chemicals and operations that pose the

greatest risk to public health and the environment in the event of an

accidental release. The CAA requires EPA to issue an initial list of at

least 100 substances (``regulated substances'') that, in the event of

an accidental release, are known to cause or may be reasonably expected

to cause death, injury, or serious adverse effects to human health and

the environment. The Act identifies 16 substances to be included in the

initial list, and specifies the factors to be considered in listing

other substances, including (1) the severity of acute adverse health

effects associated with accidental releases of the substance, (2) the

likelihood of accidental releases of the substance, and (3) the

potential magnitude of human exposure to accidental releases of the

substance. The CAA also requires EPA to establish a threshold quantity

for each chemical at the time of listing. In developing these

thresholds, the factors to be considered include toxicity, reactivity,

volatility, dispersibility, combustibility, or flammability of the

substance, and the amount of the substance which is known to cause or

can be reasonably anticipated to cause death, injury, or serious

adverse effects in case of a release. Stationary sources that have more

than a threshold quantity of a regulated substance are subject to

accident prevention regulations issued under CAA section 112(r)(7),

including the requirement to develop a risk management program.

EPA issued the rule listing substances and thresholds on January

31, 1994 (59 FR 4478) (the ``List Rule''). The List Rule was modified

on August 25, 1997 (62 FR 45129) and again on January 6, 1998 (63 FR

639). EPA sought comment on a proposed accident prevention (``risk

management program'' or ``RMP'') rule in two notices and promulgated a

final rule on June 20, 1996. (See 58 FR 54190, October 20, 1993; 60 FR

13526, March 13, 1995 and 61 FR 31668, June 20, 1996.) EPA proposed

modifications to the risk management program rule on April 17, 1998 (63

FR 19216) and finalized these amendments on January 6, 1999 (64 FR

964). For additional information on the requirements of section 112(r)

and related statutory provisions, see these notices.

C. Summary of the List Rule

In the final List Rule published on January 31, 1994, EPA

promulgated a list that includes 77 acutely toxic substances, 63

flammable gases and volatile flammable liquids, and Division 1.1 high

explosive substances as listed by the United States Department of

Transportation (DOT) in 49 CFR 172.101. EPA first modified the list on

[[Page 29172]]

August 25, 1997 (62 FR 45129) by de-listing hydrochloric acid solutions

with less than 37% concentrations of hydrogen chloride. EPA further

modified the list on January 6, 1998 (63 FR 639) by deleting the

category of Division 1.1 explosives, exempting from threshold quantity

determination regulated substances in gasoline used as fuel and in

naturally occurring hydrocarbon mixtures prior to processing, and

clarifying the determination of threshold quantity of flammable

substance in a mixture.

The List Rule establishes threshold quantities for toxic substances

ranging from 500 to 20,000 pounds. For all listed flammable substances,

the threshold quantity is 10,000 pounds. The rule sets forth the

procedures for determining whether a threshold quantity of a regulated

substance is present at a stationary source in a process. Specific

exemptions from the threshold determination are also included for

mixtures, articles, and certain uses and activities. The rule also

outlines the requirements for petitions to the Agency to add substances

to, or delete substances from, the list.

In developing the list, EPA selected commercially produced acutely

toxic and volatile substances mostly from the list of extremely

hazardous substances (EHSs) under section 302 of the Emergency Planning

and Community Right-to-Know Act of 1986 (EPCRA). EPA chose volatile

substances because they are more likely to become airborne and impact

the public. EPA also considered accident history associated with a

substance. One substance, oleum, was listed because it has a history of

accidents that have impacted the public. Because vapor cloud explosions

have caused injuries to the public and damage to the environment, EPA

also included highly flammable gases and liquids on the list.

At the time the List Rule was promulgated, EPA published a

supplemental notice seeking comment on a proposal to exempt flammable

substances from the 10,000-pound threshold determination when used

solely for facility consumption as fuel (see 59 FR 4500, January 31,

1994). EPA sought additional public comment on the hazards associated

with listed flammable substances used as fuel and the appropriateness

of the proposed exemption. Based on available information and the

comments received, EPA decided not to exempt from the threshold

quantity determination flammable substances when used as fuel. This

decision was described in the final Risk Management Program rule

promulgated on June 20, 1996 (61 FR 31668).

D. Related Litigation

Several legal challenges were brought to the RMP rule, 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 the exemption being

proposed today. The Court's stay applies only to propane, while today's

exemption would apply to all flammable hydrocarbon fuels, including

propane. The Court's stay includes no upper quantity limit or

conditions; today's exemption as proposed includes an upper quantity

limit and other conditions for eligibility. Finally, the Court's stay

will last until further order of the Court. The proposed exemption, if

made final, will be permanent. If the Court lifts its stay at some

point in the future, propane, along with the other flammable

hydrocarbon fuels, would be exempt from the RMP rule in accordance with

the terms of the exemption, unless the exemption is not finalized.

II. Discussion of Proposed Modifications and Alternatives

After promulgating the List and RMP rules, EPA became aware that a

significant number of small, commercial sources use regulated flammable

substances, particularly propane, as fuel (e.g., for heating, drying,

powering motor vehicles, etc.) in quantities that exceed the applicable

threshold quantity (10,000 pounds in a process). As a result, these

small sources, including farms, restaurants, hotels, and other

commercial operations are covered by the RMP requirements. Many of

these sources are in rural locations where other fuel sources (e.g.,

natural gas) are not available or economical.

The Agency has reexamined whether such sources should be covered by

the RMP rule given the relatively small and better known risk they

present to their surroundings. As explained in more detail below, EPA

believes that fuel use generally does not warrant the detailed

prevention program required by the RMP regulation. However, EPA

believes that fuel held in large enough quantities still poses a level

of risk which warrants a detailed prevention program (including the

submission of a risk management plan). While, as EPA previously

concluded in the List rule, listed fuels are extremely hazardous and

warrant continued listing, the Agency is proposing to exempt processes

containing these substances from the RMP requirements when stored in

quantities not exceeding 67,000 pounds in a process, because of the

decreased risk associated with fuel use.

As noted above, EPA had previously proposed a fuel use exemption,

but subsequently decided against it. In considering the original

exemption proposal, EPA focused primarily on the inherent hazards of

the listed substances when used as fuel. EPA sought but could not

locate, and did not receive from commenters, data or information which

indicated that the inherently hazardous characteristics of a flammable

substance (e.g., flammability, combustibility, volatility, etc.) were

any different when that substance was used for fuel. EPA noted that

differences in handling and use as well as application of industry

safety standards could affect the risk of an accident, but stated that

covered sources could take these and other relevant factors into

account in developing their risk management programs. Viewed from this

perspective, EPA found no basis for granting an exemption.

However, EPA did not fully realize the extent to which listed fuels

(particularly propane) are used over threshold quantities in simple

processes for heating or drying, mostly in open or rural settings.

Concerns raised after the RMP rule was issued led EPA to further

investigate the nature and number of sources subject to the rule by

virtue of their use of fuel in simple processes.

[[Page 29173]]

The Agency had originally projected that, for example, no more than

approximately 300 farms would be subject to the rule, but has since

estimated that approximately 5,300 such sources are subject to RMP

requirements (see section IV.H of this preamble). In light of the

purpose of section 112(r)--to focus comprehensive accident prevention

requirements on the most potentially dangerous sources--EPA believes

that farms and other small fuel users may not warrant federal RMP

regulation and that it is appropriate to reconsider this issue.

EPA now believes that relatively small amounts of listed flammable

substances (including amounts in excess of 10,000 pounds), when used as

fuel, generally do not present sufficient threat to the offsite public

to warrant regulation under the RMP program, provided certain

conditions are met as described below. EPA has considerable accident

data on propane that shows that while accidental releases of small

quantities of listed fuel substances certainly can and sometimes do

result in significant on-site property damage and/or injuries to

workers, they usually do not cause significant offsite impacts.

Further, local fire departments are generally well aware of the

location and hazards associated with flammable fuels and are equipped

to effectively respond to and mitigate emergencies.

EPA is therefore proposing to exempt certain quantities of listed

flammable hydrocarbons when used as fuel from RMP requirements because

the Agency believes this will better focus accident prevention efforts

on those stationary sources with high hazard operations. Today's

proposal notwithstanding, owners and operators of facilities where

exempt fuels are handled still have a general duty under section

112(r)(1) of the CAA to understand the hazards of their chemicals and

processes, design, maintain, and operate a safe facility, and take

steps to mitigate the consequences of accidents that do occur.

There are several characteristics associated with listed flammable

hydrocarbons when used as fuel which reduce its potential for

catastrophic impacts on the public or environment surrounding its

location. Among these, EPA believes that no single characteristic is

sufficient to justify an exemption for regulated fuels. However, when

taken together, they reduce the risk of regulated fuels enough to

justify the proposed exemption. These characteristics generally fall

into two categories: characteristics that reduce the likelihood of

accidental release, and characteristics that reduce the likelihood that

a release will result in severe offsite consequences, particularly

vapor cloud explosions. As EPA explained in the List Rule, the Agency

selected flammable substances and their threshold quantity based on

their potential to cause vapor cloud explosions, which generate blast

overpressures that travel much farther from the source than the radiant

heat of fires, thus making offsite consequences more likely.

A. Characteristics of Fuel Use That Reduce the Likelihood of Accidental

Release

Taken together, processes that are relatively simple, involve

little manipulation and handling, are covered by other state or federal

regulations, and are separate from other RMP covered processes are

generally less likely to undergo a significant accidental release that

can harm the public or environment. Fuel-use processes generally have

these characteristics, as further explained below.

1. Simple Process

EPA believes that simple processes are generally less likely to

suffer accidental releases than complex processes. When compared to the

many different types of industrial chemical manufacturing operations at

sources covered by the RMP rule, most fuel processes at commercial

locations are relatively simple to operate and maintain. The majority

of fuel uses of listed flammable hydrocarbons are for comfort heating,

space heating, or drying. Typical process configurations involve

minimal amounts of equipment (e.g., fuel storage tanks, transfer

piping, and fuel burners), and instrumentation and process controls

generally are few (perhaps only a thermostat). Complex or exotic

equipment is generally not present, startups and shutdowns are usually

easy to perform (many homeowners perform similar operations with no

special training), and operations are often fairly routine. However,

since fuel processes related to fuel manufacturing may be quite

complex, EPA proposes not to extend the fuel exemption to processes

associated with the manufacture of regulated fuel substances.

2. Little Manipulation and Handling

EPA believes that processes involving little hazardous chemical

handling, manipulation, and transfer are generally less prone to

accidental releases than processes which involve frequent handling,

manipulation, and transfer. Fuel-use processes typically do not involve

a lot of manipulation and handling of regulated flammable substances.

In most heating fuel processes, fuel storage tanks are filled

infrequently (e.g., at monthly or longer intervals). Once a fuel

storage tank is filled, fuel substances generally do not undergo

numerous changes of state, and processes do not require frequent

valving, piping connections and disconnections, or substance transfers

into or out of the process. And as discussed above, fuel-use process

operations are typically routine, with few start-ups and shut-downs.

Although today's proposed exemption contains no explicit criterion

which limits the exemption to processes involving little manipulation

and handling, and therefore the exemption could be applied to sources

(i.e., fuel retailers and distributors) which may not have this

characteristic, EPA believes that another explicit criterion for

today's exemption (i.e., 67,000 pound upper quantity limit) effectively

prevents it from being applied to such sources.

3. Regulated Under State Law

EPA has estimated that the vast majority of fuel-use processes

covered by the RMP rule consist of liquefied petroleum gas (principally

propane) processes. To a lesser extent, covered fuel-use processes

consist of liquefied or gaseous natural gas (methane) processes. The

National Fire Protection Association (NFPA) has developed consensus

standards for the design, construction, installation, and operation of

liquefied petroleum gas and liquefied natural gas systems (i.e., NFPA

58 LP-Gas Code, NFPA 59 Standard for the Storage and Handling of

Liquefied Petroleum Gases at Utility Gas Plants, and NFPA 59A, Standard

for the Production, Storage, and Handling of Liquefied Natural Gas

(LNG)), and these standards apply to most fuel processes covered by the

RMP rule. NFPA Standard 58, the standard applicable to most propane

processes covered by the RMP rule, has been incorporated (or

substantially equivalent requirements have been incorporated) into

regulations in all 50 U.S. states. Although to EPA's knowledge no

existing industry standard or state regulation duplicates all of the

hazard assessment, accident prevention, emergency response, and

information submission requirements of the RMP rule, these standards

and regulations do contain some requirements which are either identical

or generally consistent with certain RMP requirements. EPA therefore

believes that implementation of safety practices required by these NFPA

standards and state laws, as applicable, helps to reduce the likelihood

of accidental releases at fuel-use processes.

[[Page 29174]]

4. Not Near or Combined With Other Regulated Substances or Processes

At the majority of sources eligible for the proposed fuel

exemption, the process where the listed flammable substance is used as

a fuel is the only covered process at the site and involves no other

listed substances. It thus cannot be impacted by any other covered

process in a way that could lead to an accidental release. And an

accidental release involving the fuel process would not cause the

release of another hazardous substance.

However, some facilities may have multiple processes or

interconnected operations that use other listed flammable or toxic

substances along with a listed flammable hydrocarbon used as fuel. For

example, a process heater that uses a listed flammable hydrocarbon

substance as fuel in a chemical reaction system handling other RMP

listed substances could be adversely affected by a process upset or

emergency, leading to a catastrophic fuel release. Conversely, an

accident involving the fuel could lead to the secondary release of

another substance, with offsite effects potentially equal to or greater

than those resulting from release of the fuel itself. To ensure that

today's proposed exemption is not inappropriately applied to processes

where other regulated substance processes could be involved in an

accidental fuel release, EPA proposes not to extend the fuel exemption

to cases where the process containing the listed flammable hydrocarbon

fuel contains another regulated substance, or is interconnected or

collocated with another RMP-covered process.

B. Characteristics of Fuel Use That Reduce the Likelihood of Severe

Offsite Consequences

Taken together, there are certain characteristics of the listed

flammable hydrocarbons when used as a fuel that serve to reduce the

likelihood of offsite consequences, particularly vapor cloud

explosions, should an accidental release of the fuel occur. Some of

these characteristics also reduce the magnitude of a vapor cloud

explosion, should one occur. Specifically, fuel-use processes are

typically in a less congested environment, involve small quantities of

regulated substances, and use odorants as a means of rapid release

detection.

1. Less Congested Environment

EPA's primary concern in listing flammable substances was the

possibility that accidental releases of these substances could result

in vapor cloud explosions. As noted earlier, vapor cloud explosions

generate blast overpressures that travel much further from the source

of the explosion than the radiant heat generated by a large fire. Other

types of flammable substance accidents, such as boiling liquid

expanding vapor explosions (BLEVEs), can also result in severe offsite

consequences, but primarily when very large quantities are involved. A

vapor cloud explosion of the same quantity involved in a BLEVE

generates a far greater impact distance and could potentially affect a

larger number of people.

While vapor cloud explosions are infrequent events in general,

experimental studies and accident investigations have shown that the

likelihood and force of a vapor cloud explosion increase dramatically

if flammable vapor is released into a highly congested environment

(i.e., containing numerous obstacles, parallel-plane surfaces, and

other obstructions). The presence of congestion in the volume occupied

by a combusting vapor cloud creates turbulence in the vapor cloud, and

turbulence is a necessary condition for blast overpressure to be

generated in a combusting vapor cloud (factors other than physical

congestion can also result in blast-generative turbulence, but

congestion is generally the most common factor). Furthermore, greater

turbulence (which can be caused by more and denser congestion) can

dramatically increase the force of an explosion. Vapor clouds that

ignite without turbulence generally burn, resulting in a flash fire or

fireball, but do not explode.

The influence of congestion in the dynamics of vapor cloud

explosions causes certain sources to be more susceptible to vapor cloud

explosions than others. Sources such as petroleum refineries are often

highly congested and therefore may present conditions conducive to a

vapor cloud explosion should an accidental flammable vapor release

occur. Small fuel-use sources, on the other hand, are generally not

highly congested. Consequently, accidental releases from fuel-use

processes are not as likely to result in vapor cloud explosions.

Furthermore, if an accidental release at a fuel-use source does result

in a vapor cloud explosion, the explosion is likely to be less powerful

than that resulting from a similar release at a refinery or

petrochemical plant.

2. Small Quantities

Studies have shown that small hydrocarbon vapor clouds, even if

they ignite, are not likely to explode. The probability of a vapor

cloud explosion increases with the size of the vapor cloud. The great

majority of fuel-use processes contain relatively small quantities of

regulated fuels. Typical fuel-use situations involve 500- or 1000-

gallon propane tanks, either individually or in multiple tank

configurations. For this reason, the potential size of an accidental

release from a fuel-use process, even a release consisting of the

entire quantity of the process, is generally likely to be relatively

small in relation to the amount of fuel necessary to generate a large

vapor cloud.

When establishing the threshold quantity for listed flammable

substances, EPA was aware that certain sources were more susceptible to

vapor cloud explosions than others, and the Agency therefore used

conservative modeling assumptions in setting that threshold. These

assumptions were necessary in order to accommodate the full range of

covered sources, including sources such as petroleum refineries where

large quantities of regulated flammable substances may be held in

environments and under conditions conducive to vapor cloud explosions.

However, EPA believes, for reasons stated above, that these assumptions

are overly conservative for most fuel use situations. EPA believes that

a fuel-use source can store significantly more than 10,000 pounds of

fuel in a process without the threat of significant offsite impacts

from accidental releases.

Historically, flammable substance accidents with significant

offsite impacts have involved either vapor cloud explosions at

refineries and chemical plants, or BLEVE's at sources storing large

quantities of flammable substances. In terms of loss of life, perhaps

the most severe flammable substance accident ever at a stationary

source occurred at an LP-gas terminal in Mexico City where nearly 4

million gallons of liquefied petroleum gas were stored. The accident

involved the BLEVE or rupture of 48 large LP-gas storage containers,

and reportedly resulted in more than 600 fatalities, most of whom were

members of the offsite public. Other accidents with offsite impacts

have occurred at fuel distribution sources in the United States and

other countries where quantities of fuel much smaller than the quantity

involved in the Mexico City accident were stored. In view of the large

amount of fuel stored at fuel distribution facilities, as well as the

frequent handling and transfer involved in fuel distribution, EPA

believes that these facilities generally pose a significant risk of

offsite consequences.

[[Page 29175]]

EPA proposes to establish the upper limit for the fuel exemption at

67,000 pounds, which is approximately the maximum amount, expressed in

pounds, of liquefied petroleum gas normally stored in a standard 18,000

gallon propane tank (i.e., according to NFPA Standard 58, an 18,000

gallon propane tank may be filled to a maximum of 88% of nominal water

capacity at 60 deg.F). This proposed upper limit on the fuel exemption

acknowledges the fact that even in environments not conducive to vapor

cloud explosions, such events can still occur if a sufficient quantity

of flammable vapor is released.

EPA derived this number in two steps. First, EPA used blast

modeling methods to determine the amount of fuel necessary to result in

a vapor cloud explosion that could cause potentially lethal effects on

people from the indirect effects of an explosion at a distance of 100

meters from the source. In performing this analysis, EPA used TNT-

equivalent and multi-energy blast modeling approaches. For TNT-

equivalent modeling, EPA evaluated values for blast yield factor and

flash fraction that the Agency considers to be representative of

typical fuel-use situations. EPA evaluated blast yield factors ranging

from one to three percent and determined flash fraction on the basis of

actual thermodynamic data. The Agency also reviewed case studies

relevant to the proposed exemption. Next, since the majority of fuel-

use processes covered under the RMP rule contain propane, EPA reviewed

the sizes of widely-used propane tanks, and set the proposed exemption

limit to coincide with the tank size which best represented the range

of quantities derived using blast modeling. Additional technical

background information and calculations used to derive the proposed

exemption limit are available for review at the docket for this

rulemaking (see ADDRESSES).

EPA believes that 67,000 pounds represents a reasonable upper limit

for the exemption, and believes that this limit is consistent with

accident history, which indicates that flammable substance accidents

with the most serious offsite impacts generally have occurred at

sources storing large quantities of flammable substances for

manufacturing, distribution or resale. The 67,000 pound upper quantity

limit should also distinguish between fuel users and distributors. As

noted earlier, fuel distribution involves very frequent transfer and

handling that make accidental releases more likely. Based on available

information, EPA believes that a 67,000 pound upper quantity limit

would exclude the vast majority of fuel distributors from eligibility

for the proposed exemption. EPA requests comment on this approach, the

proposed upper quantity limit for the exemption, related accident data,

and whether an upper limit is necessary. Is relevant accident data

available that the Agency may not have considered? Should EPA consider

a different limit? If so, what would be the basis for that limit?

Should EPA express the upper limit in terms of tank capacity (i.e.,

18,000 gallons) instead of quantity in a process (i.e., 67,000 pounds)?

Commenters are encouraged to provide supporting methodology for any

other limit proposed, as well as accident data if available.

3. Fuels Are Odorized

The final characteristic of flammable hydrocarbon fuels that

reduces the likelihood and/or magnitude of offsite consequences

resulting from accidental releases is the fact that most regulated

flammable fuel substances are odorized. The most commonly used fuel

substances covered by the RMP rule, propane and methane, have no

natural odor. An odorant is generally added to these fuels as a warning

agent such that the gases are detectable, by a distinct odor, well

below the lower limit of flammability. EPA believes that the presence

of the odorant increases the likelihood that accidental fuel releases

can be detected and stopped or mitigated before the release generates

sufficient vapor to cause a vapor cloud explosion or results in other

significant offsite impacts. Furthermore, even if the release itself

cannot be halted or mitigated, the presence of the warning odor may

allow the public to evacuate to a safe distance from a fuel release.

EPA recognizes that the presence of a warning odor, by itself, is not

effective in every circumstance, and even if the odor is detected,

human intervention is often still required to stop or mitigate an

accidental release. Nevertheless, EPA believes that accidental releases

of odorized fuels are often likely to be less severe, either in terms

of the quantity released or its consequences, or both, than accidental

releases of non-odorized flammable substances. EPA requests comment on

this issue as it relates to other listed flammable hydrocarbon

substances used as fuel that are not odorized.

EPA requests comment on the preceding characteristics and whether

they are appropriate as the bases for today's proposed exemption.

C. Alternative Approaches

While EPA believes that today's proposed exemption would

effectively exempt only those fuel using sources that present little

risk to the offsite public, the Agency requests comment on whether

alternative approaches might better serve this purpose. Specifically,

EPA requests comment on the following alternative approaches:

1. Restrict Exemption to Processes Where Flammable Substances are Used

On-site as Fuel; No Upper Quantity Limit on Exemption

The approach proposed today is based on the analysis above, which

indicates that fuel-use processes pose lower risk than other covered

processes, so long as the quantity of fuel in the process does not

exceed 67,000 pounds. However, for the sake of administrative

simplicity, both for the regulated sources and the regulating agency

(including state implementing agencies), EPA is not proposing to

include fuel-use as an eligibility criterion for the exemption. EPA's

data show that relatively few sources that store fuel for other than

on-site use (e.g. fuel distributors and retailers) hold quantities of

67,000 pounds or less in a process. And, to the extent that such

sources exist, they are often in relatively remote locations, serving

as small depots to rural customers. The Agency thus believes that a

fuel-use criterion is probably unnecessary to assure proper application

of the proposed exemption.

Nevertheless, the first alternative to today's approach would

restrict the exemption to only those sources where the presence of the

fuel is only for actual on-site consumption. This alternative is

virtually identical to the fuel-use exemption provided by OSHA under 29

CFR part 1910, Process Safety Management of Highly Hazardous Chemicals;

Explosives and Blasting Agents. Under the OSHA exemption (and this

alternative to today's approach), no upper quantity limit restricts its

applicability. In consideration of the aforementioned factors which

differentiate fuel use from other flammable substance uses (or other

factors that the Agency may not have considered), EPA requests comments

on whether or not this alternative to the proposed exemption better

accomplishes its stated purpose (i.e., to exempt from RMP coverage

numerous small fuel users and better focus accident prevention

activities on stationary source operations that present a greater risk

to the community).

[[Page 29176]]

2. Restrict Exemption to Processes Where Flammable Substances Are

Consumed On-site as Fuel; Retain Upper Quantity Limit on Exemption

This alternative is identical to the first alternative, but retains

the upper quantity limit on applicability for the exemption. This would

ensure that the exemption would not be applied at sources that consume

very large quantities of fuel on-site. As previously indicated, EPA

believes that even in fuel-use situations that are less susceptible to

vapor cloud explosions, such events can still occur if a sufficient

quantity of fuel is released. In consideration of the factors which

differentiate fuel use from other flammable substance uses, EPA

requests comments on whether or not this alternative to the proposed

exemption better accomplishes its stated purpose.

3. Restrict Exemption to Regulated Substances in Liquefied Petroleum

Gas and/or Natural Gas

In EPA's view, an important justification for providing a fuel

exemption is that in the event of an accidental release of a small

quantity of fuel (less than 67,000 pounds), significant offsite

consequences are not likely. In deriving the proposed 67,000 pound

upper quantity limit for the exemption, EPA incorporated some modeling

assumptions that represent the characteristics of propane, the most

widely used listed fuel substance. EPA believes these assumptions are

also reasonably conservative when applied to modeling of methane, the

primary component of natural gas. However, other listed flammable fuel

substances, such as acetylene and propylene, have inherent

characteristics for which these assumptions may be unsuitable (e.g.,

acetylene is much more reactive than propane). EPA believes that such

substances are generally not stored for fuel use in quantities

approaching 67,000 pounds. Therefore, EPA believes that the proposed

exemption does not, as a practical matter, present any unintended

additional risk to the public from such substances. However, EPA

requests comment on whether or not the proposed exemption, or any of

the proposed alternatives, should apply only to regulated substances in

liquefied petroleum gas and natural gas, the flammable mixtures for

which the exemption is, in large part, specifically intended.

D. Other Issues

Comments are requested on the proposed exemption and alternatives

and the other specific issues addressed (e.g., distinguishing

characteristics of fuel-use, methodology for determination of upper

quantity limit for the proposed exemption, whether or not to restrict

the exemption to certain regulated fuel substances, etc.). This

rulemaking does not otherwise concern the listing and threshold

quantities of flammable substances; comments received on issues outside

the scope of today's proposal will not be considered. EPA may conduct

final rulemaking on any of today's proposed alternatives without

requesting further public comment.

III. Summary of Proposed Revisions to the Rule

EPA is proposing to amend subpart F, Sec. 68.115(b) of title 40 of

the Code of Federal Regulations to add a new paragraph (6):

(6) Fuels. Regulated flammable hydrocarbon substances need not be

considered in determining whether more than a threshold quantity is

present 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.''

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

99-18, 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. Public Hearing and Written Comments

A public hearing will be held, if requested, to discuss the

proposed amendments in accordance with section 307(d)(5) of the Clean

Air Act. If a public hearing is requested and held, the EPA will ask

clarifying questions during the oral presentation but will not respond

to the presentations or comments. Written statements and supporting

information will be considered with equivalent weight as any oral

statement and supporting information subsequently presented at a public

hearing, if held. Persons wishing to present oral testimony or to

inquire as to whether a hearing is to be held should contact the EPA

(see FOR FURTHER INFORMATION CONTACT). To provide an opportunity for

all who may wish to speak, oral presentations will be limited to 15

minutes each.

Any member of the public may file a written statement on or before

July 12, 1999. Written statements should be addressed to the Air and

Radiation Docket and Information Center (see ADDRESSES), and refer to

Docket No. A-99-18. A verbatim transcript of the hearing and written

statements will be placed in the docket and be available for public

inspection and copying, or mailed upon request, at the Air and

Radiation Docket and Information Center.

C. 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 this rule is not a ``significant

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

therefore not subject to OMB review.

D. 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

[[Page 29177]]

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. This action proposes changes that will exempt from part

68 requirements certain small fuel users, which may include some

sources that are owned and operated by State, local or tribal

governments. Accordingly, the requirements of section 1(a) of Executive

Order 12875 do not apply to this rule.

E. 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 proposed 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.

F. 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 action proposes changes

that will exempt certain small fuel users, which may include

communities of Indian tribal governments, from part 68 requirements.

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

do not apply to this rule.

G. Regulatory Flexibility

EPA certifies that this proposed rule will not have a significant

economic impact on a substantial number of small entities. This rule

proposes changes that will exempt many small fuel users from part 68

requirements.

H. Paperwork Reduction

The information collection requirements in this rule will be

submitted for approval to the Office of Management and Budget (OMB)

under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An

Information Collection Request (ICR) document has been prepared by EPA

(ICR No. 1656.07) and a copy may be obtained from Sandy Farmer by mail

at OPPE Regulatory Information Division; U.S. Environmental Protection

Agency (2137); 401 M St., S.W.; Washington, DC 20460, by email at

[email protected], or by calling (202) 260-2740. A copy may

also be downloaded off the internet at http://www.epa.gov/icr. The

information requirements are not effective until OMB approves them.

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

information collection requirements (ICR) contained for the RMP rule

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

seq. and has assigned OMB control number 2050-0144. Under the current

approved ICR No. 1656.05, EPA estimated the regulated universe as

69,485 sources with an annualized burden of 1.2 million hours. This

revision of the rule reduces reporting burden on small fuel users

(hotels, restaurants, farms, etc.), thereby reducing the regulated

universe estimated by EPA in the approved ICR No. 1656.05.

EPA originally estimated that 12,500 propane retailers, 16,100

propane users, (see Economic Analysis in support of Final Rule, June

1996, available at EPA's Air Docket, Docket A-91-73) and about 5,300

farms (see ICR No. 1656.05) would be subject to part 68 requirements

because they handled more than 10,000 pounds of propane. EPA reviewed

data from a number of states and determined that only New Jersey had

sufficient data that provided detailed information on propane retailer

and users (including farms) and the quantity held. Using these data,

EPA estimates that, under the 67,000 pound threshold in this proposed

rule, the number of propane retailers would decrease by 10 percent to

11,250, and the number of users would decrease by 83 percent, to 2,700.

EPA estimated the percentage of farms exempted under the 67,000 pound

threshold by averaging data from New Jersey and North Carolina (data

from North Carolina was used to estimate number of farms in the current

approved ICR No. 1656.05). The farms would decrease by 85 percent, to

780. Overall, the universe of regulated sources under the proposed rule

is now estimated to decrease from 69,485 to 50,300.

The public reporting burden will depend on the regulatory program

tier into which sources are categorized. The public reporting burden

for rule familiarization is estimated to range between 12 to 35 hours

per source. The public reporting burden to prepare and submit a new RMP

is estimated to take 6.0 hours for retailers to 10.0 hours for non-

chemical manufacturers. RMP revisions are estimated to require 3.0

hours for wholesalers to 8.6 hours for chemical manufacturers. The

public record keeping burden to maintain on-site documentation is

estimated to range

[[Page 29178]]

from 2.8 hours for retailers to 279 hours for chemical manufacturers.

The public reporting burden for CBI claims is estimated to be 9.5 hours

for certain chemical manufacturing sources. In this action, EPA is not

providing an exemption to sources that manufacture any of the flammable

fuels, therefore, the original estimate for the CBI burden will not be

changed with this rule. The public reporting burden for individuals

filing petitions to amend the list of regulated substances is estimated

to be 138 hours.

EPA estimates (ICR no. 1656.07) that the total annual public

reporting burden to become familiar with the rule, complete and submit

(or revise) the risk management plan, maintain on-site documentation,

substantiate claims for confidential business information, and prepare

and submit petitions to amend the list of regulated substances is

estimated to be about 1.1 million annual burden hours for the remaining

50,300 sources subject to part 68 under the proposed rule.

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, 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.

Comments are requested on the Agency's need for this information,

the accuracy of the provided burden estimates, and any suggested

methods for minimizing respondent burden, including through the use of

automated collection techniques. Send comments on the ICR to the

Director, OP Regulatory Information Division; U.S. Environmental

Protection Agency (2137); 401 M St., S.W.; Washington, DC 20460; and to

the Office of Information and Regulatory Affairs, Office of Management

and Budget, 725 17th St., N.W., Washington, DC 20503, marked

``Attention: Desk Officer for EPA.'' Include the ICR number in any

correspondence. Since OMB is required to make a decision concerning the

ICR between 30 and 60 days after May 28, 1999, a comment to OMB is best

assured of having its full effect if OMB receives it by June 28, 1999.

The final rule will respond to any OMB or public comments on the

information collection requirements contained in this proposal.

I. 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, rather it reduces burden for certain small fuel

users. 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 proposes changes to exempt certain small fuel

users which may include small governments.

J. 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 proposed rulemaking 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,

Clean Air Act, Extremely hazardous substances, Intergovernmental

relations, Hazardous substances, Reporting and recordkeeping

requirements.

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 proposed to

be amended as follows:

PART 68--CHEMICAL ACCIDENT PREVENTION PROVISIONS [AMENDED]

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

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

2. Sec. 68.115 is amended by adding a new paragraph (b)(6) to read

as follows:

Sec. 68.115 Threshold determination.

* * * * *

(b)* * * * *

(6) Fuels. Regulated flammable hydrocarbon substances need not be

[[Page 29179]]

considered in determining whether more than a threshold quantity is

present 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. 99-13540 Filed 5-27-99; 8:45 am]

BILLING CODE 6560-50-P