16598 Federal Register / Vol. 61, No. 73 / Monday, April 15, 1996 / Proposed Rules

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.

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,
Federal Register / Vol. 61, No. 73 / Monday, April 15, 1996 / Proposed Rules 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
16600 Federal Register / Vol. 61, No. 73 / Monday, April 15, 1996 / Proposed Rules

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 °F (22.8 °C) and a

boiling point below 100 °F (37.8 °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. Onsite 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.
Federal Register / Vol. 61, No. 73 / Monday, April 15, 1996 / Proposed Rules 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 onsite 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
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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 § 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 § 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

§ 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 § 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
Federal Register / Vol. 61, No. 73 / Monday, April 15, 1996 / Proposed Rules 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:

§ 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:

§ 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:

§ 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
16604 Federal Register / Vol. 61, No. 73 / Monday, April 15, 1996 / Proposed Rules

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

§ 68.3 of this part.

* * * * *

§ 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