[Federal Register Volume 61, Number 73 (Monday, April 15, 1996)]
[Proposed Rules]
[Pages 16598-16604]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-9095]
[[Page 16597]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 68
List of Regulated Substances and Thresholds for Accidental Release
Prevention; Proposed Rule
Federal Register / Vol. 61, No. 73 / Monday, April 15, 1996 /
Proposed Rules
[[Page 16598]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 68
[FRL-5657-7]
List of Regulated Substances and Thresholds for Accidental
Release Prevention; Proposed Amendments
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing several
modifications to the rule listing regulated substances and threshold
quantities under section 112(r) of the Clean Air Act as amended. EPA is
proposing to delete the category of Division 1.1 explosives (as listed
by DOT) from the list of regulated substances. Regulated flammable
substances in gasoline used as fuel and in naturally occurring
hydrocarbon mixtures prior to initial processing are proposed for
exemption from threshold quantity determinations, and a clarification
of the provision for threshold determination of flammable substances in
a mixture is proposed. Modifications to the definition of stationary
source are proposed to clarify the exemption of transportation and
storage incident to transportation and to clarify that naturally
occurring hydrocarbon reservoirs are not stationary sources or parts of
stationary sources. In addition, EPA is clarifying that the Chemical
Accident Prevention Provisions do not apply to sources located on the
Outer Continental Shelf. EPA believes these proposed changes will
better focus accident prevention activities on stationary sources with
high hazard operations and reduce duplication with other similar
requirements.
DATES: Comments. Comments must be submitted on or before May 15, 1996
unless a hearing is requested by April 25, 1996. If a hearing is
requested, written comments must be received by May 30, 1996.
Public Hearing. Anyone requesting a public hearing must contact EPA
no later than April 25, 1996. If a hearing is held, it will take place
on April 30, 1996 at 9:30 a.m.
ADDRESSES: Comments. Comments should be mailed or submitted to:
Environmental Protection Agency, Air Docket (6102), Attn: Docket No. A-
96-O8, 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
Vanessa Rodriguez (see For Further Information Contact).
Docket. The docket for this rulemaking is A-96-O8. 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: Vanessa Rodriguez, Chemical Engineer,
Chemical Emergency Preparedness and Prevention Office, Environmental
Protection Agency, OS-120, 401 M St. SW, Washington, DC 20460, (202)
260-7913.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction and Background
A. Statutory Authority
B. Background
C. Summary of Final Rule
II. Discussion of Proposed Modifications
A. Explosives
B. Regulated Flammable Substances in Gasoline and in Naturally
Occurring Hydrocarbon Mixtures
C. Clarification of Threshold Determination for Mixtures
Containing Flammable Substances
D. Definition of Stationary Source
E. Applicability to Outer Continental Shelf
III. Discussion of the Proposed Rule
IV. Required Analyses
A. E.O. 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates
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 (Act) as amended (42
U.S.C. sections 7412(r) and 7601).
B. Background
The Clean Air Act (CAA or Act), section 112(r), contains
requirements related to prevention of accidental releases. The goal of
the accidental release provisions is to prevent accidental releases and
minimize the consequences of releases by focusing on those chemicals
and operations that pose the greatest risk. The CAA requires EPA to
promulgate 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. Factors required to
be considered in listing substances are the severity of acute adverse
health effects associated with accidental releases of the substance,
the likelihood of accidental releases of the substance, and 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, factors required 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 promulgated under CAA
section 112(r)(7), including the requirement to develop risk management
plans.
EPA's final rule on the list of substances and thresholds (59 FR
4478, January 31, 1994) (the ``List Rule'') promulgated the regulated
list of substances and thresholds that identify sources subject to the
accident prevention rules. EPA subsequently sought comment on a
proposed accident prevention (``risk management program'') rule in two
notices and intends to promulgate a final rule in late Spring 1996.
(See 58 FR 54190, October 20, 1993; 60 FR 13526, March 13, 1995.) 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 List Rule, 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. The final
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,
[[Page 16599]]
while all explosive substances have a threshold quantity of 5,000
pounds. The rule sets forth the procedures for determining whether a
threshold quantity of a regulated substance is present at a stationary
source. Specific exemptions for quantities considered in the threshold
determination are also included for mixtures, articles, and certain
uses and activities. The rule also specifies the requirements for any
petitions to the Agency requesting to add substances to, or delete
substances from, the list.
The criteria EPA considered in selecting substances for listing
include severity of acute adverse health effects, likelihood of
release, and potential magnitude of human exposure. EPA was required to
set threshold quantities for each regulated substance considering its
toxicity, reactivity, volatility, dispersibility, and flammability, as
well as amounts known or anticipated to cause effects of concern.
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 (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 and blast waves
from detonations of high explosives have caused injuries to the public
and damage to the environment, EPA also included highly flammable gases
and liquids and high explosives on the list.
The American Petroleum Institute (API), the Institute of Makers of
Explosives (IME), and one other party filed petitions for judicial
review of the List Rule (American Petroleum Institute v. EPA, No. 94-
1273 (D.C. Cir.) and consolidated cases). On March 28, 1996, EPA made
available for public comment under CAA section 113(g) proposed
settlement agreements with API and IME (61 FR 13858, March 28, 1996).
II. Discussion of Proposed Modifications
Following EPA's promulgation of regulated substances and thresholds
in the List Rule, the petitioners mentioned above and other members of
the regulated community raised a number of issues concerning the list
and thresholds. Certain provisions of the List Rule that seemed
inconsistent with EPA's intent expressed in the preamble or other
documents supporting the final rule were identified. Additional
information was also received addressing the concerns that led to the
regulation. As a result, EPA is proposing the following amendments to
the final rule: delisting explosives; exempting from threshold
determination regulated flammable substances in gasoline and in
naturally occurring hydrocarbon mixtures prior to initial processing;
clarifying the provision for threshold determination of flammable
substances in mixtures to exempt mixtures that do not have a National
Fire Protection Association (NFPA) flammability hazard rating of 4;
modifying the definition of stationary source to clarify the exemption
of transportation and storage incident to transportation and to clarify
that naturally occurring hydrocarbon reservoirs are not stationary
sources or parts of stationary sources; and clarifying that the
chemical accident prevention provisions do not apply to sources located
on the Outer Continental Shelf (``OCS sources'').
A. Explosives
In the final rule (59 FR 4478, January 31, 1994), EPA included
explosives classified by DOT as Class 1, Division 1.1, and listed as
such in 49 CFR 172.101 (the Hazardous Materials Table) as regulated
substances with a threshold quantity of 5,000 pounds. Division 1.1
explosives were listed because of their potential to readily detonate,
causing offsite impacts. While acknowledging that explosives are
regulated by a number of other agencies, EPA maintained that public
safety would be enhanced if additional information about explosives,
such as hazard assessments, were available to emergency response
agencies and local emergency planners under section 112(r). EPA's
primary concern was that there were gaps in the existing regulatory
framework in the area of communication with emergency responders and
local planners because existing regulations and programs were not
comprehensive. EPA noted that public safety would be enhanced by
additional coordination between facilities handling explosives and the
local emergency planners and responders.
Subsequent to promulgation of the List Rule, IME provided EPA with
additional information about the extent of the regulatory gaps
discussed above, including coordination with emergency responders.
After additional review of other federal, state, and local laws and
regulations for explosives, as well as industry practices for
explosives manufacturing and storage, EPA has concluded that current
regulations and current and contemplated industry practices promote
safety and accident prevention in storage, handling, transportation,
and use of explosives. As a result, these regulations and practices
adequately protect the public and the environment from the hazards of
accidents involving explosives. Explosives are regulated by the Bureau
of Alcohol, Tobacco and Firearms (BATF), the Mine Safety and Health Act
(MSHA), the Occupational Safety and Health Act (OSHA), the Department
of Defense (DoD), the Department of Transportation (DOT), and state and
local agencies. BATF's American Table of Distances (ATD) specifies
distances for explosive storage from inhabited buildings, public
highways, and passenger railways; these distances are great enough to
ensure that an accidental explosion at a site that is in compliance
with the ATD should not produce blast waves that are hazardous to
people at distances where the public could be affected (the hazard to
which the public could be exposed if a site complies with the ATD is
significantly lower than that which the Agency would be protecting
against with its listing of Division 1.1 explosives at a 5,000-pound
threshold). Most facilities that manufacture or store explosives
already are required to develop emergency response plans and to provide
local emergency responders with copies of Material Safety Data Sheets
(MSDSs) or lists of materials with MSDSs, or to advise local emergency
responders regarding the type, quantity, and location of Division 1.1
explosives on site.
EPA's review of existing regulations and current industry practices
still indicates that public safety would be enhanced if some sites
handling explosives made additional information about explosives
available to emergency responders and planners. While EPA does not
believe there are many sites that are not already coordinating with
local authorities under other regulatory and voluntary programs, public
safety would be enhanced if there were additional coordination between
the remaining facilities handling explosives and the local emergency
planners and responders. To address the gaps EPA identified, IME has
developed suggested safety practices that would be adopted in due
course if EPA provides final consent to the proposed settlement
agreement. These actions would provide additional information and
enhance the coordination between explosives facilities and the
emergency planners and responders. IME member companies would post
signs at all
[[Page 16600]]
normal access routes stating, ``Danger. Never Fight Explosive Fires.
Explosives are stored on this site,'' and providing an emergency phone
number. Whenever a new Division 1.1 commercial explosives storage or
manufacturing location is established at a temporary job site, IME
member companies would notify Local Emergency Planning Committees and
other local authorities (e.g., fire departments and law enforcement
agencies) of the type, quantity, and location of explosives on site. At
Division 1.1 commercial explosives storage or manufacturing locations
with 5,000 pounds or more of Division 1.1 explosives (not including
temporary job sites) where preparation of emergency response plans is
not already required, IME member companies would prepare emergency
response plans, notify Local Emergency Planning Committees and other
local authorities of the type, quantity, and location of explosives on
site, provide the emergency response plans to local emergency
responders, and respond to reasonable requests for information from
said authorities. IME member companies also would inform their
customers of the contents of the Settlement Agreement and the actions
to be taken. IME would respond to reasonable requests from law
enforcement agencies and emergency responders for information
concerning the safe storage, distribution, and use of explosives. IME
also would distribute a letter to other non-IME commercial explosives
manufacturers, distributors, and users informing them of the Settlement
Agreement and actions to be taken. The Agency believes these actions
effectively close the remaining gap in emergency planning and response
communications, while allowing existing laws to prevail. Therefore, EPA
is proposing to delist explosives from the list of regulated substances
under section 112(r). EPA requests comments on whether explosives
should be delisted.
B. Regulated Flammable Substances in Gasoline and in Naturally
Occurring Hydrocarbon Mixtures
In the threshold determination provisions for mixtures containing
flammable regulated substances, the List Rule provides that such
mixtures are exempt if the owner or operator can demonstrate that the
mixture does not meet boiling point or flash point criteria; otherwise,
the entire mixture is treated as a regulated substance unless another
exemption applies. The boiling point and flash point are objectively
determinable and derived from the definition of highly flammable
liquids and gases, National Fire Protection Association (NFPA)
flammability hazard rating of 4. Although EPA did not specifically
exempt gasoline and naturally occurring hydrocarbon mixtures (e.g.,
crude oil) from threshold determination, it did not intend the List
Rule to cover regulated flammable substances in mixtures that do not
meet the NFPA 4 criteria. Gasoline and crude oil are listed with NFPA
flammability ratings of 3 in Fire Hazard Properties of Flammable
Liquids, Gases, and Volatile Solids, NFPA 325M (1991 edition). EPA
noted in Proposed List of Substances and Threshold for Accidental
Release Prevention: Summary and Response to Comments (1994) that it
believed gasoline does not meet the boiling point criterion for
listing. EPA also noted that it considered unlisted hydrocarbons that
fail to meet the NFPA 4 criteria to represent a lower priority for
accident prevention.
The NFPA criteria contain both the objective elements included in
EPA's rule as well as certain judgmental criteria. NFPA 4, as defined
in the NFPA Standard System for the Identification of Fire Hazards of
Materials, NFPA 704 (1990 edition), includes the following:
``Materials that will rapidly or completely vaporize at atmospheric
pressure and normal ambient temperature, and which will burn readily.
This degree usually includes:
Flammable gases;
Flammable cryogenic materials;
Any liquid or gaseous material that is liquid while under pressure
and has a flash point below 73 deg.F (22.8 deg.C) and a boiling point
below 100 deg.F (37.8 deg.C) (i.e., Class IA flammable liquids);
Materials that ignite spontaneously in air.''
Thus, the promulgated threshold determination provision does not
exempt mixtures that meet the flash point and boiling point criteria,
but that do not rapidly or completely vaporize and, therefore, are not
true NFPA 4 mixtures based on the full definition. In particular,
certain grades of gasoline and some naturally occurring hydrocarbon
mixtures might be subject to threshold determination under the
provisions of the final rule, based on the flash point and boiling
point criteria, even though these mixtures do not meet the judgmental
criteria of NFPA 4.
To better reflect EPA's original intent to exempt non-NFPA 4
mixtures and to clarify the regulatory status of gasoline and naturally
occurring hydrocarbon mixtures (e.g., crude oil and natural gas
condensate), EPA is proposing to provide specific exemptions from
threshold determination for regulated flammable substances in gasoline
used as fuel for internal combustion engines and for regulated
substances in naturally occurring hydrocarbon mixtures prior to initial
processing in a petroleum refining process unit or a natural gas
processing plant. Naturally occurring hydrocarbon mixtures would
include any or any combination of the following: condensate, crude oil,
field gas, and produced water. EPA is proposing definitions of these
substances for inclusion in the rule and is also proposing definitions
of petroleum refining process unit and natural gas processing plant.
EPA believes the proposed definitions reflect standard, widely accepted
meanings of these terms.
EPA believes gasoline and the naturally occurring hydrocarbon
mixtures condensate and crude oil, because they contain many non-
volatile components, have low potential for vapor cloud explosions (the
basis for listing flammable substances under CAA section 112(r)), even
if, in some cases, they may meet the flash point and boiling point
criteria cited in the final rule. Produced water in naturally occurring
hydrocarbon mixtures would likely reduce the flammability and potential
for vapor cloud explosion of these mixtures. EPA believes field gas,
prior to initial processing, also has low potential for vapor cloud
explosions that might have an impact on the public. Exploration and
production facilities likely do not have many congested areas or
confined spaces; congested areas or turbulent conditions (in an
advancing flame front) generally are necessary for a vapor cloud
explosion to occur. On-site processes are relatively simple, and there
are unlikely to be many ignition sources. The American Petroleum
Institute (API) evaluated the potential consequences of releases of
naturally occurring hydrocarbon mixtures at oil and gas exploration and
production facilities, as discussed in Hazard Assessment of Exploration
and Production Facilities Potentially Subject to the Environmental
Protection Agency's Risk Management Program Regulations (January 20,
1995) (see docket), and concluded that hazard distances were generally
very short for the types of facilities evaluated. Finally, EPA believes
these explicit, specific, and clear exemptions for gasoline and
naturally occurring hydrocarbons are useful in addition to revising the
flammable mixture provision to better reflect NFPA 4, because they
simplify the task of applying the judgmental criteria of NFPA 4 for
these pervasive mixtures.
[[Page 16601]]
As naturally occurring hydrocarbon mixtures undergo processing in a
petroleum refining process unit or a natural gas processing plant, the
potential for a vapor cloud explosion likely increases. The processes
are more complex, there may be significant on-site congestion from
buildings and equipment, flammable substance may be stored in large
quantities, and there may be many ignition sources. The components of
crude oil and condensates may be separated based on volatility. The
more volatile mixtures (or purified substances) resulting from such
processing may meet the criteria for NFPA 4 and, therefore, would need
to be considered for threshold determination in accordance with the
provisions for threshold determination of regulated flammable
substances in mixtures, as discussed in the next section of this
preamble. Similarly, before gasoline is finally formulated into a fuel
for internal combustion engines, during processing in a refinery, it
may meet the criteria for NFPA 4 and, therefore, would need to be
considered for threshold determination in accordance with the
provisions for threshold determination of regulated flammable
substances in mixtures.
EPA requests comments on the proposed exemption from threshold
determination for gasoline used as fuel for internal combustion engines
and specifically requests comments on whether the qualifying phrase,
``used as fuel for internal combustion engines,'' is a necessary part
of the exemption. EPA also requests comments on the proposed exemption
for regulated substances in naturally occurring hydrocarbon mixtures
prior to initial processing and on the proposed definitions related to
the exemption for naturally occurring hydrocarbon mixtures.
C. Clarification of Threshold Determination of Regulated Flammable
Substances in Mixtures
In the final rule, EPA provided flash point and boiling point
criteria for determining whether a mixture containing a regulated
flammable substance is subject to threshold determination. Although
these flash point and boiling point criteria are associated with an
NFPA rating of 4, the NFPA rating was not specifically cited as a
criterion. As discussed in the preamble to the List Rule, EPA believes
that mixtures that do not have an NFPA rating of 4 should not be
subject to threshold determination. Based on comments from the
regulated community, EPA now believes the flash point and boiling point
criteria, although they are part of the criteria for the NFPA 4 rating,
are not adequate by themselves to identify mixtures with the NFPA 4
rating. As noted above, the NFPA 4 rating applies to substances that
will rapidly or completely vaporize at atmospheric pressure and normal
ambient temperature or that are readily dispersed in air, and that will
burn readily. Like gasoline and crude oil, which have NFPA 3 ratings
for flammability, other mixtures may contain low boiling flammable
components that would cause the mixture to meet the flash point and
boiling point criteria, but also contain higher boiling components that
would prevent the mixture from rapidly or completely vaporizing. To
clarify threshold determination for mixtures, EPA is proposing to
provide that, for mixtures that have one percent or greater
concentration of a regulated flammable substance, the entire weight of
the mixture shall be treated as the regulated substance unless the
owner or operator can demonstrate that the mixture does not have an
NFPA flammability hazard rating of 4, as defined in the NFPA Standard
System for the Identification of Fire Hazards of Materials, NFPA 704-
1990. EPA requests comments on this proposed clarification, which would
be in addition to the specific exemption proposed for gasoline and
naturally occurring hydrocarbons.
D. Definition of Stationary Source
The List Rule defined stationary source to exclude transportation,
including storage incident to transportation, provided such
transportation is regulated under 49 CFR parts 192, 193, or 195. In
addressing issues related to EPCRA, which also excludes transportation
in commerce for most purposes, EPA has interpreted the transportation
exclusion to exempt substances being transported in commerce or in
storage under active shipping papers and to treat as a ``stationary
item'' any storage in containers not under active shipping papers. In
the List Rule, EPA referred to DOT pipeline regulations under 49 CFR
parts 192, 193, and 195, and stated in the Preamble that pipelines,
transfer stations, and other activities already covered by DOT would be
excluded. Furthermore, EPA intended to exclude from the definition of
stationary source all transportation and storage incident to such
transportation to be consistent with EPCRA. EPA believes the List Rule
definition of stationary source clearly covers transportation
containers only when they are no longer in transportation in commerce
and clearly excludes pipelines as defined by DOT; however, based on
comments from the regulated community, EPA believes there still may be
potential for overlap and confusion regarding the jurisdiction and
regulatory responsibility of EPA and DOT for pipelines and for
transportation containers at stationary sources.
The Agency has received questions regarding the language in the
stationary source definition that refers to ``transportation containers
no longer under active shipping papers.'' Both EPA and DOT agree this
term would generally apply to containers that are not in transportation
in commerce and that are at the stationary source for purposes of
storage, loading, or unloading that is not incidental to transportation
in commerce. ``Transportation in commerce'' is defined by DOT pursuant
to Federal Hazardous Materials Transportation Law (Federal HAZMAT Law,
49 U.S.C. sections 5107-5127). As a result of continued questions
regarding the scope of Federal HAZMAT Law and the applicability of the
regulations issued thereunder, DOT is currently working to better
delineate and more clearly define the applicability of its regulations.
DOT currently contemplates clarifying its jurisdiction through the
rulemaking process. As a result, there may be a future need for EPA to
further amend the definition of stationary source to better comport
with DOT clarifications or actions. The Agency will continue to work
closely with DOT to minimize overlap and confusion with respect to
jurisdiction and items in transportation and will coordinate with DOT
to ensure that consistent interpretations about regulations coverage
are provided to the regulated community.
EPA is proposing several amendments to the definition of stationary
source to reflect more clearly EPA's intent. First, EPA is proposing to
modify the definition of stationary source to clarify that exempt
transportation shall include, but not be limited to, transportation
activities subject to regulation or oversight under 49 CFR parts 192,
193, or 195, as well as transportation subject to natural gas or
hazardous liquid programs for which a state has in effect a
certification under 49 U.S.C. section 60105. DOT established safety
standards for pipeline facilities used in the transportation of natural
gas by pipeline in 49 CFR part 192, for liquefied natural gas
facilities in 49 CFR part 193, and for pipeline facilities used in the
transportation of hazardous liquids by pipeline in 49 CFR part 195.
State programs with certifications under 49 U.S.C. section 60105 are
comparable to the DOT
[[Page 16602]]
requirements and thus ensure public safety.
In addition, EPA is proposing to modify the definition of
stationary source to clarify that naturally occurring hydrocarbon
reservoirs are not stationary sources or parts of stationary sources.
This interpretation is consistent with EPA's policy under EPCRA. API
concluded in the Hazard Assessment of Exploration and Production
Facilities Potentially Subject to the Environmental Protection Agency's
Risk Management Program Regulations (January 20, 1995) that the flow of
hydrocarbons from reservoirs would not contribute to the magnitude of a
catastrophic release scenario. This conclusion was based on consequence
analysis of a range of fire and explosion events, assuming a range of
handling conditions, types of equipment, and material compositions
typical of exploration and production facilities. Finally, EPA is
clarifying that the exemption for transportation containers in
transportation in commerce or storage incident to such transportation
is not limited to pipelines. EPA requests comments on these proposed
revisions to the stationary source definition.
E. Applicability to Outer Continental Shelf
EPA is proposing an applicability exception for sources on the
outer continental shelf (OCS sources). Such an exception is consistent
with CAA section 328, which precludes the applicability of EPA CAA
rules to such sources when such rules are not related to attaining or
maintaining ambient air quality standards or to the ``prevention of
significant deterioration'' provisions of the CAA.
III. Summary of Proposed Revisions to the Rule
EPA is proposing to amend several sections of part 68 of title 40
of the Code of Federal Regulations.
In Sec. 68.3, the definition of stationary source would be revised.
The revised definition would specifically state that naturally
occurring hydrocarbon reservoirs are not stationary sources or parts of
stationary sources. The definition would state that exempt
transportation shall include, but not be limited to, transportation
activities subject to regulation or oversight under 49 CFR parts 192,
193, or 195, as well as transportation subject to natural gas or
hazardous liquid programs for which a state has in effect a
certification under 49 U.S.C. section 60105.
Several new definitions are proposed for Sec. 68.3, for condensate,
crude oil, field gas, natural gas processing plant, petroleum refining
process unit, and produced water.
Section 68.10 is proposed to be amended to clarify that part 68
does not apply to OCS sources.
Several revisions are proposed for Sec. 68.115 on threshold
determination. Section 68.115(b)(2) is proposed to be modified to state
that the entire weight of the mixture containing a regulated flammable
substance shall be treated as the regulated substance unless the owner
or operator can demonstrate that the mixture does not have an NFPA
flammability hazard rating of 4. Another proposed modification to
Sec. 68.115(b)(2) would exempt from threshold determination regulated
flammable substances in gasoline used as fuel in internal combustion
engines. Regulated substances in naturally occurring hydrocarbon
mixtures (including condensate, crude oil, field gas, and produced
water), prior to entry into a natural gas processing plant or a
petroleum refining process unit, also are proposed to be exempt from
threshold determination. Section 68.115(b)(3), on concentrations of a
regulated explosive substance in a mixture, is proposed to be deleted,
and 68.115(b)(4), 68.115(b)(5), and 68.115(b)(6) would be redesignated
as 68.115(b)(3), 68.115(b)(4), and 68.115(b)(5).
Section 68.130 is proposed to be modified by the deletion of (a),
explosives listed by DOT as Division 1.1. Section 68.130(b) would be
redesignated as 68.130(a), and 68.130(c) would be 68.130(b).
IV. Required Analyses
A. E.O. 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must judge 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, jobs, the environment, public health or safety,
or state, local, or tribal government 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 this proposed rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and
therefore is not subject to OMB review.
B. Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act of 1980, Federal
agencies must evaluate the effects of the rule on small entities and
examine alternatives that may reduce these effects.
EPA has examined the proposed rule's potential effects on small
entities as required by the Regulatory Flexibility Act. It has
determined that this rule will have no adverse effect on small entities
because it reduces the number of substances that would be used to
identify stationary sources for regulation and provides exemptions that
will likely reduce the number of stationary sources subject to the
accidental release prevention requirements. Therefore, I certify that
today's proposed rule will not have a significant economic effect on a
substantial number of small entities.
C. Paperwork Reduction Act
This proposed rule does not include any information collection
requirements for OMB to review under the provisions of the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq.
D. Unfunded Mandates
Under section 202 of the Unfunded Mandates Reform Act of 1995,
signed into law on March 22, 1995, EPA must prepare a statement to
accompany any rule where the estimated costs to State, local, or tribal
governments in the aggregate, or to the private sector, will be $100
million or more in any one year. Under section 205, EPA must select the
most cost-effective and least burdensome alternative that achieves the
objective of the rule and is consistent with statutory requirements.
Section 203 requires EPA to establish a plan for informing and advising
any small governments that may be significantly impacted by the rule.
EPA has estimated that this rule does not include a Federal mandate
that may result in estimated costs of $100 million or more to either
State, local, or tribal governments in the aggregate, or to the private
sector.
List of Subjects in 40 CFR Part 68
Environmental protection, Chemicals, Chemical accident prevention,
Clean Air Act, Extremely hazardous substances, Incorporation by
reference, Intergovernmental relations, Hazardous
[[Page 16603]]
substances, Reporting and Recordkeeping requirements.
Dated: April 5, 1996.
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
1. The authority citation for part 68 continues to read as follows:
Authority: 42 U.S.C. sections 7412(r), 7601.
Subpart A--General
2. Section 68.3 is proposed to be amended by adding the following
definitions in alphabetical order and revising the definition of
stationary source to read as follows:
Sec. 68.3 Definitions.
* * * * *
Condensate means hydrocarbon liquid separated from natural gas that
condenses due to changes in temperature, pressure, or both, and remains
liquid at standard conditions.
Crude oil means any naturally occurring, unrefined petroleum
liquid.
* * * * *
Field gas means gas extracted from a production well before the gas
enters a natural gas processing plant.
Natural gas processing plant (gas plant) means any processing site
engaged in the extraction of natural gas liquids from field gas,
fractionation of mixed natural gas liquids to natural gas products, or
both. A separator, dehydration unit, heater treater, sweetening unit,
compressor, or similar equipment shall not be considered a ``processing
site'' unless such equipment is physically located within a natural gas
processing plant (gas plant) site.
Petroleum refining process unit means a process unit used in an
establishment primarily engaged in petroleum refining as defined in the
Standard Industrial Classification code for petroleum refining (2911)
and used for the following: (1) Producing transportation fuels (such as
gasoline, diesel fuels, and jet fuels), heating fuels (such as
kerosene, fuel gas distillate, and fuel oils), or lubricants; (2)
Separating petroleum; or (3) Separating, cracking, reacting, or
reforming intermediate petroleum streams.
Examples of such units include, but are not limited to, petroleum-
based solvent units, alkylation units, catalytic hydrotreating,
catalytic hydrorefining, catalytic hydrocracking, catalytic reforming,
catalytic cracking, crude distillation, lube oil processing, hydrogen
production, isomerization, polymerization, thermal processes, and
blending, sweetening, and treating processes. Petroleum refining
process units include sulfur plants.
* * * * *
Produced water means water extracted from the earth from an oil or
natural gas production well, or that is separated from oil or natural
gas after extraction.
* * * * *
Stationary source means any buildings, structures, equipment,
installations, or substance emitting stationary activities which belong
to the same industrial group, which are located on one or more
contiguous properties, which are under the control of the same person
(or persons under common control), and from which an accidental release
may occur. A stationary source includes transportation containers that
are no longer under active shipping papers and transportation
containers that are connected to equipment at the stationary source for
the purposes of temporary storage, loading, or unloading. A stationary
source does not include naturally occurring hydrocarbon reservoirs. The
term stationary source does not apply to transportation, including
storage incident to transportation, of any regulated substance or any
other extremely hazardous substance under the provisions of this part.
Transportation includes, but is not limited to, transportation subject
to oversight or regulation under 49 CFR parts 192, 193, or 195, or a
state natural gas or hazardous liquid program for which the state has
in effect a certification to DOT under 49 U.S.C. section 60105.
Properties shall not be considered contiguous solely because of a
railroad or gas pipeline right-of-way.
3. Section 68.10, as proposed at 60 FR 13543, is further amended by
adding a paragraph (e) to read as follows:
Sec. 68.10 Applicability.
* * * * *
(e) The provisions of this part shall not apply to an Outer
Continental Shelf (``OCS'') source, as defined in 40 CFR 55.2.
Subpart C--Regulated Substances for Accidental Release Prevention
4. Section 68.115 is proposed to be amended by revising paragraph
(b) introductory text and paragraph (b)(2); removing paragraph (b)(3);
and by redesignating paragraphs (b)(4) as (b)(3), (b)(5) as (b)(4), and
(b)(6) as (b)(5) to read as follows:
Sec. 68.115 Threshold determination.
* * * * *
(b) For the purposes of determining whether more than a threshold
quantity of a regulated substance is present at the stationary source,
the following exemptions apply:
* * * * *
(2) Concentrations of a regulated flammable substance in a mixture.
(i) General provision. If a regulated substance is present in a
mixture and the concentration of the substance is below one percent by
weight of the mixture, the mixture need not be considered when
determining whether more than a threshold quantity of the regulated
substance is present at the stationary source. Except as provided in
paragraph (b)(2) (ii) and (iii) of this section, if the concentration
of the substance is one percent or greater by weight of the mixture,
then, for purposes of determining whether a threshold quantity is
present at the stationary source, the entire weight of the mixture
shall be treated as the regulated substance unless the owner or
operator can demonstrate that the mixture itself does not have a
National Fire Protection Association flammability hazard rating of 4.
The demonstration shall be in accordance with the definition of
flammability hazard rating 4 in the NFPA 704, Standard System for the
Identification of the Fire Hazards of Materials, National Fire
Protection Association, Quincy, MA, 1990. Available from the National
Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02269-
9101. This incorporation by reference was approved by the Director of
the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part
51. Copies may be inspected at the Environmental Protection Agency Air
Docket (6102), Attn: Docket No. A-96-08, Waterside Mall, 401 M. St.
SW., Washington D.C.; or at the Office of Federal Register at 800 North
Capitol St., NW, Suite 700, Washington, D.C. (Note: this document will
only be available for inspection at the Federal Register after this
action becomes a final rule.) Boiling point and flash point shall be
defined and determined in accordance with NFPA 321, Standard on the
Basic Classification of Flammable and Combustible Liquids, National
Fire Protection Association, Quincy, MA, 1991. Available from the
National Fire Protection Association, 1 Batterymarch Park, Quincy, MA
02269-9101. This
[[Page 16604]]
incorporation by reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected at the Environmental Protection Agency Air Docket
(6102), Attn: Docket No. A-96-08, Waterside Mall, 401 M. St. SW.,
Washington D.C.; or at the Office of Federal Register at 800 North
Capitol St., NW, Suite 700, Washington, D.C. (Note: this document will
only be available for inspection at the Federal Register after this
action becomes a final rule.) The owner or operator shall document the
National Fire Protection Association flammability hazard rating.
(ii) Gasoline. Regulated substances in gasoline, when in
distribution or related storage for use as fuel for internal combustion
engines, need not be considered when determining whether more than a
threshold quantity is present at a stationary source.
(iii) Naturally occurring hydrocarbon mixtures. Prior to entry into
a natural gas processing plant or a petroleum refining process unit,
regulated substances in naturally occurring hydrocarbon mixtures need
not be considered when determining whether more than a threshold
quantity is present at a stationary source. Naturally occurring
hydrocarbon mixtures include any combination of the following:
condensate, crude oil, field gas, and produced water, each as defined
in Sec. 68.3 of this part.
* * * * *
Sec. 68.130 [Amended]
5. Section 68.130 is proposed to be amended by removing paragraph
(a) and redesignating paragraph (b) as (a), and paragraph (c) as (b).
The tables to the section remain unchanged.
[FR Doc. 96-9095 Filed 4-12-96; 8:45 am]
BILLING CODE 6560-50-P
