[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Rules and Regulations]
[Pages 59650-59652]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28311]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 63 and 68
[FRL-6465-7]
Approval of Delegation of the Accidental Release Prevention
Requirements: Risk Management Programs Under Clean Air Act Section
112(r)(7): State of Ohio
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: This action approves delegation of the Clean Air Act (CAA)
section 112(r)(7) accidental release prevention requirements to the
State of Ohio, Environmental Protection Agency (OEPA), Division of Air
Pollution Control (DAPC), for all applicable Ohio sources. DAPC
requested the section 112(r)(7) delegation on July 23, 1999. Section
112(r)(7) requires owners and operators of stationary sources subject
to the requirements to submit a risk management plan (RMP) to detect
and prevent or minimize accidental releases of regulated substances.
In the proposed rule section of this Federal Register, EPA is
proposing approval of, and soliciting comments on, the proposed
delegation. If adverse comments are received on this action, EPA will
withdraw this final rule and address the comments received in response
to this action in a final rule on the related proposed rule. A second
public comment period will not be held. Parties interested in
commenting on this action should do so at this time.
DATES: This direct final rule will be effective January 3, 2000, unless
EPA receives adverse or critical comments by December 3, 1999. If
adverse comment is received, EPA will publish a timely withdrawal of
the rule in the Federal Register and inform the public that the rule
will not take effect.
ADDRESSES: Written Comments on this action should be sent concurrently
to: Bob Mayhugh, U.S. Environmental Protection Agency, Region 5, 77 W.
Jackson Blvd., (SC-6J), Chicago, IL 60604-3590, mayhugh.robert@epa.gov,
and Sherri Swihart, Ohio Environmental Protection Agency, 1800
WaterMark Dr., Columbus, Ohio 43215-1099,
sherri.swihart@epa.state.ohio.us.
Copies of Ohio's section 112(r) delegation request letter and
accompanying documents are available for public review during the hours
of 8:00 a.m. and 4:30 p.m., Monday through Friday, at the addresses
listed above. If you would like to review these documents, please make
an appointment with the appropriate office at least 24 hours before
visiting day.
FOR FURTHER INFORMATION CONTACT: Bob Mayhugh, U.S. Environmental
Protection Agency, Region 5, Superfund Division, Office of Chemical
Emergency Preparedness and Prevention, 60604-3590, (telephone 312/886-
5929), mayhugh.robert@epa.gov, or Sherri Swihart, Ohio Environmental
Protection Agency, 1800 WaterMark Dr., Columbus, Ohio 43215-1099
(telephone 614/644-3594), sherri.swihart@epa.state.oh.us.
SUPPLEMENTARY INFORMATION: The 1990 CAA Amendments added section 112(r)
to provide for the prevention and mitigation of accidental chemical
releases. Section 112(r) (3)-(5) mandates that EPA promulgate a list of
``regulated substances,'' with threshold quantities. Processes at
stationary sources that contain a threshold quantity of a regulated
substance are subject to accidental release prevention regulations
promulgated under CAA section 112(r)(7). Pursuant to section 112(r)(7),
EPA published the risk management program regulations on June 20, 1996
(61 FR 31668), and subsequently amended the regulations on January 6,
1999 (64 FR 963). The risk management program regulations are set forth
at 40 CFR part 68. The regulations require, among other things, that
owners and operators of stationary sources with more than a threshold
quantity of a regulated substance in a process submit a risk management
plan (RMP) by June 21, 1999, to a central location specified by EPA. A
RMP must include, in general, an offsite consequence analysis, a
prevention program, and an emergency response program. The RMPs will be
available to state and local governments and to the public. These
regulations encourage sources to reduce the probability of accidentally
releasing substances that have the potential to cause harm to public
health and the environment. Further, the regulations stimulate dialog
between industry and the public on ways to improve accident prevention
and emergency response practices.
Section 112(l) of the CAA and 40 CFR 63.91 and 63.95, authorize
EPA, in part, to delegate the authority to implement 112(r)(7) to any
state or local agency which submits an approvable program to implement
and enforce the section 112(r)(7) requirements, including the risk
management program regulations set forth at 40 CFR part 68. An
appropriate plan must contain, among other criteria, the following
elements: a demonstration of the state's authority and resources to
implement and enforce regulations that are at least as stringent as
section 112(r) regulations; procedures for receiving, reviewing, and
making publicly available RMPs; procedures to provide technical
assistance to subject sources, including small businesses.
On September 28, 1998, the Ohio Accidental Release Prevention and
Risk Management Planning Act (Chapter 3753-104 Ohio Revised Code)
became effective. This law adopts the federal requirements found in CAA
section 112(r) and the corresponding regulations for section 112(r)(7)
set forth at 40 CFR part 68 for use with the Ohio section 112(r)
program. Ohio's section 112(r) program has the authority and resources
to educate the general public and subject sources through outreach
programs; provide technical assistance;
[[Page 59651]]
review and make publicly available risk management plans; and
adequately enforce its 112(r) program. Upon delegation, the State's
program will be administered by the DAPC of OEPA. DAPC will work
closely with OEPA's Division of Emergency Remedial Response (DERR)
which is also responsible for implementation of the Federal Emergency
Planning and Community Right-To-Know Act (EPCRA) program in the State.
The DERR serves as Chair and staff to the State Emergency Response
Commission (SERC) and has an established relationship with Ohio's
eighty-seven Local Emergency Planning Committees (LEPCs).
Based on Ohio's delegation request and its pertinent laws and
regulations, EPA has determined that such a delegation is appropriate
in that Ohio has satisfied the criteria of 40 CFR 63.91 and 63.95. The
Ohio program has adequate and effective authorities, resources, and
procedures in place for implementation and enforcement of non-major and
major sources subject to the section 112(r)(7) requirements. The State
has the primary authority and responsibility to carry out all elements
of the section 112(r)(7) program for all sources covered in the State,
including on-site inspections, record keeping reviews, audits and
enforcement. Although the State has primary authority and
responsibility to implement and enforce the section 112(r)(7)
requirements, nothing shall preclude, limit, or interfere with the
authority of EPA to exercise its enforcement, investigatory, and
information gathering authorities concerning this part of the Act.
Administrative Requirements
A. Executive Order 12866
Under E.O. 12866 (58 FR 51735; October 4, 1993), EPA must determine
whether a regulatory action is ``significant'' and, therefore, subject
to OMB review and the requirements of the Executive Order EPA has
determined that the promulgation of risk management program regulations
is a ``significant regulatory action'' under the terms of E.O. 12866
(61 FR 31668, June 20, 1996; 64 FR 963, January 6, 1999). However, the
delegation of section 112(r)(7) unchanged from the Federal requirements
does not create any new regulatory requirements. Therefore, this
regulatory action is exempt from Executive Order 12866 review.
B. Executive Orders on Federalism
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. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected state, local, and tribal
governments, the nature of their concerns, copies of written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, 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. The State of Ohio has voluntarily requested delegation of
this program. The state will be implementing its own pre-existing
Accidental Releases Prevention/Risk Management Planning program as
described in the Supplemental Information Section of this notice.
Accordingly, the requirements of section 1(a) of Executive Order 12875
do not apply to this rule.
On August 4, 1999, President Clinton issued a new executive order
on federalism, Executive Order 13132, (64 FR 43255 (August 10, 1999),)
which will take effect on November 2, 1999. In the interim, the current
Executive Order 12612, (52 FR 41685 (October 30, 1987),) on federalism
still applies. This rule will not have a substantial direct effect on
states, on the relationship between the national government and the
states, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 12612.
The rule affects only one State, and does not alter the relationship or
the distribution of power and responsibilities established in the Clean
Air Act.
C. Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly affects or uniquely affects
the communities of Indian tribal governments, and that imposes
substantial direct compliance costs on those communities, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by the tribal governments. If the mandate is
unfunded, EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, representatives of Indian tribal governments
``to provide meaningful and timely input in the development of
regulatory policies on matters that significantly or uniquely affect
their communities.'' Today's rule does not significantly or uniquely
affect the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
D. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., the EPA
must consider the paperwork burden imposed by any information
collection request in a proposed or final rule. This rule will not
impose any new information collection requirements.
E. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA, Public Law 96-354, September
19, 1980) requires Federal agencies to give special consideration to
the impact of regulation on small businesses. The RFA specifies that a
regulatory flexibility analysis must be prepared if a screening
analysis indicates a regulation will have significant impact on a
substantial number of small entities. (5 U.S.C. 603 and 604.)
Alternatively, EPA may certify that the regulatory action will not have
a significant impact on a substantial number of small entities. Because
the delegation of section 112(r)(7) unchanged from the Federal
requirements does not create any new regulatory requirements, I certify
that this action will not have a significant economic impact on a
substantial number of small entities.
F. Unfunded Mandates
Under section 202, 203 and 205 of the Unfunded Mandates Reform Act
of 1995 (Unfunded Mandates Act), EPA must undertake various actions in
association with proposed or final rules that include a Federal mandate
that may result in estimated costs of $100 million or more
[[Page 59652]]
to the private sector, or to state, local, or tribal governments in the
aggregate.
EPA has determined that the approval action promulgated today does
not constitute a Federal mandate that may result in estimated costs of
$100 million or more to either state, local, or tribal governments in
the aggregate, or to the private sector. The State voluntarily
requested this delegation under section 112(l) for the purpose of
implementing and enforcing the risk management program requirements of
section 112(r)(7). The delegation imposes no new Federal requirements.
Because the State was not required by law to seek delegation, this
Federal action does not impose a mandate on the State.
G. Submission to Congress and the Comptroller General
The Congressional Review Act 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
H. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
(VCS) are technical standards (e.g., materials specifications, test
methods, sampling procedures, and business practices) that are
developed or adopted by voluntary consensus standards bodies. The NTTAA
directs EPA to provide Congress, through OMB, explanations when the
Agency decides not to use available and applicable voluntary consensus
standards. Today's action does not require the public to perform
activities conducive to the use of VCS. Therefore, EPA believes that
voluntary consensus standards are inapplicable to this action.
I. Executive Order 13045
Protection of Children from Environmental Health Risks and Safety
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is
determined to be ``'economically significant''' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule as defined by Executive Order 12866,
and because it does not involve decisions based on environmental health
or safety risks.
List of Subjects
40 CFR Part 63
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations.
40 CFR Part 68
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous substances, Intergovernmental
relations, Chemicals, Reporting and recordkeeping requirements.
Dated: October 21, 1999.
David A. Ullrich,
Acting Regional Administrator, Region 5.
[FR Doc. 99-28311 Filed 11-2-99; 8:45 am]
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