640 Federal Register / Vol. 63, No. 3 / Tuesday, January 6, 1998 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 68

[FRL–5940–4]

RIN 2050–AE35

List of Regulated Substances and

Thresholds for Accidental Release

Prevention; Amendments

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is modifying the rule

listing regulated substances and

threshold quantities under section

112(r) of the Clean Air Act as amended.

EPA is deleting 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 exempted from

threshold quantity determinations, and

the provision for threshold

determination of flammable substances

in a mixture is clarified. The definition

of stationary source is modified 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 changes will better

focus accident prevention activities on

stationary sources with high hazard

operations and reduce duplication with

other similar requirements.

DATES: This rule is effective January 6,

1998.

ADDRESSES: Docket: The docket for this

rulemaking is A–96–O8. This rule

amends a final rule, the docket for

which is A–91–74. The docket may be

inspected between 8:00 a.m. and 5:30

p.m., 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,

(202) 260–7913, Chemical Emergency

Preparedness and Prevention Office,

U.S. Environmental Protection Agency,

MC–5101, 401 M St. SW, Washington,

DC 20460, or the Emergency Planning

and Community Right-to-Know Hotline

at 1–800–424–9346.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially affected by this

action are those stationary sources that

have more than a threshold quantity of

a regulated substance in a process.

Regulated categories and entities

include:

Category Examples of regulated entities

Chemical Manufacturers ........................................................................... Industrial organics & inorganics, paints, pharmaceuticals, adhesives,

sealants, fibers.

Petrochemical ........................................................................................... Refineries, industrial gases, plastics & resins, synthetic rubber.

Other Manufacturing ................................................................................. Electronics, semiconductors, paper, fabricated metals, industrial machinery, furniture, textiles.

Agriculture ................................................................................................. Fertilizers, pesticides.

Public Sources .......................................................................................... Drinking and waste water treatment works.

Utilities ...................................................................................................... Electric and Gas Utilities.

Others ....................................................................................................... Oil and gas exploration and production, natural gas processing, food

and cold storage, propane retail, warehousing and wholesalers.

Federal Sources ....................................................................................... Military and energy installations.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

affected by this action. Other types of

entities not listed in the table also could

be affected. To determine whether a

stationary source is affected by this

action, carefully examine the provisions

of today’s notice. If you have questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

The following outline is provided to

aid in reading this preamble:

Table of Contents

I. Introduction and Background

A. Statutory Authority

B. Regulatory History

C. List Rule Litigation

II. Discussion of the Final Rule and Public

Comments

A. Explosives

B. Regulated Flammable Substances in

Gasoline and in Naturally Occurring

Hydrocarbon Mixtures

C. Clarification of Threshold Determination

of Regulated Flammable Substances in

Mixtures

D. Definition of Stationary Source

E. Applicability to Outer Continental Shelf

III. Summary of Revisions to the Rule

IV. Judicial Review

V. Required Analyses

A. Executive Order 12866

B. Regulatory Flexibility

C. Paperwork Reduction

D. Unfunded Mandates Reform Act

E. Submission to Congress and the General

Accounting Office

F. National Technology Transfer and

Advancement Act

I. Introduction and Background

A. Statutory Authority

This final rule is being issued under

sections 112(r) and 301 of the Clean Air

Act (CAA or Act) as amended.

B. Regulatory History

The CAA, section 112(r), 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

CAA also requires EPA to establish a

threshold quantity for each chemical at

the time of listing. 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.

On January 31, 1994, EPA

promulgated the list of regulated

substances and thresholds that identify

stationary sources subject to the

accidental release prevention

regulations (59 FR 4478) (the ‘‘List

Rule’’). The listed substances included

77 acutely toxic substances, 63

flammable gases and volatile flammable

liquids, and Division 1.1 high explosive

substances as listed by the United States

Department of Transportation (DOT) in

49 CFR 172.101. EPA subsequently

promulgated a rule requiring owners
Federal Register / Vol. 63, No. 3 / Tuesday, January 6, 1998 / Rules and Regulations 641

and operators of stationary sources with

listed substances above their threshold

quantities to develop programs

addressing accidental releases and to

make publicly available risk

management plans (‘‘RMPs’’)

summarizing these programs (61 FR

31668, June 20, 1996) (the ‘‘RMP Rule’’).

For further information on these

regulations, section 112(r), and related

statutory provisions, see these notices.

These rules can be found in 40 CFR part

68, ‘‘Chemical Accident Prevention

Provisions,’’ and collectively are

referred to as the accidental release

prevention regulations.

C. List Rule Litigation

The American Petroleum Institute

(API) and the Institute of Makers of

Explosives (IME) 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).

Consistent with these agreements, EPA

proposed amendments to the List Rule

on April 15, 1996 (61 FR 16598). On

June 20, 1996, EPA promulgated a stay

of certain provisions of the List Rule

that were affected by the proposed

amendments (61 FR 31730). EPA is

today taking final action on the

amendments proposed in April 1996.

II. Discussion of the Final Rule and

Public Comments

In this final rule, EPA is taking the

following actions to amend the List

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’’).

These amendments were proposed on

April 15, 1996. EPA received 37 letters

commenting on the proposal. Major

comments are discussed below.

Summaries of all comments and the

Agency’s responses can be found in the

summary and response to comments

document in the docket.

A. Explosives

EPA is amending the List Rule to

delete the category of high explosives

from the list of regulated substances.

Explosives were initially listed because

of their potential to cause offsite effects

from blast waves. In addition, EPA

believed that there existed potential

gaps in emergency planning and

response communication that made risk

management planning appropriate for

sources with explosives. In accordance

with the Settlement Agreement, IME has

developed and will implement safety

practices that will provide additional

information and enhance the

coordination between explosives

facilities and the emergency planners

and responders. As discussed in the

preamble to the proposed rule of April

15, 1996, EPA 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. The Agency believes these

actions effectively close the remaining

gap in emergency planning and

response communications. Therefore,

EPA is taking final action to delist

explosives from the list of regulated

substances under section 112(r).

EPA received six comment letters on

the proposal to delist explosives. All the

commenters supported EPA’s proposal,

citing current regulations, current and

contemplated industry practices, and

the regulatory burden imposed by

listing explosives.

B. Regulated Flammable Substances in

Gasoline and in Naturally Occurring

Hydrocarbon Mixtures

EPA is taking final action 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. These exemptions

reflect EPA’s original intent to exempt

flammable mixtures that do not meet the

criteria for a National Fire Protection

Association (NFPA) flammability hazard

rating of 4 and clarify the regulatory

status of gasoline and naturally

occurring hydrocarbon mixtures.

Naturally occurring hydrocarbon

mixtures would include any or any

combination of the following: natural

gas condensate, crude oil, field gas, and

produced water. This rule includes

definitions of these substances as well

as definitions of natural gas processing

plant and petroleum refining process

unit.

EPA is making minor changes to the

definitions proposed for natural gas

processing plant and petroleum refining

process unit. The North American

Industrial Classification System

(NAICS) code has been added to the

definition for natural gas processing

plant in this final rule. In addition, part

of the proposed definition has been

dropped, because it included the term

being defined and, as a result,

potentially could cause confusion. The

NAICS code also has been added to the

definition of petroleum refining process

unit. The proposed definition of

petroleum refining process unit

included the Standard Industrial

Classification (SIC) code (which is still

cited in the definition); however, SIC

codes have been replaced by NAICS

codes.

EPA received 12 letters in support of

the gasoline exemption. No comments

were submitted opposing this

exemption. Several of the commenters

who supported the exemption also

suggested broadening the exemption to

include blendstocks, natural gasolines,

and other fuels. Several suggestions

were made for clarifying the gasoline

exemption.

EPA does not believe the exemption

should be broadened. Individual

flammable substances that do not meet

the criteria for NFPA 4 for flammability

were not considered for listing as

flammables in development of the list of

regulated substances. Although

substances such as blendstocks and

natural gasoline are not specifically

exempted, any flammable mixtures,

including blendstocks and natural

gasoline, that do not meet the criteria for

an NFPA rating of 4 for flammability are

exempt from threshold determination

(see Clarification of Threshold

Determination of Regulated Flammable

Substances in Mixtures, discussed

below). EPA believes that substances

and mixtures that meet the criteria for

NFPA 4, including blendstocks and

fuels, should be covered by the rule,

regardless of their use. EPA believes

such substances have the same intrinsic

hazards whether they are used as

gasoline blendstocks, as fuels, or for

other purposes. EPA’s analysis indicates

that risks associated with the storage

and handling of flammable substances

are a function of the properties of the

materials, not their end use. EPA is
642 Federal Register / Vol. 63, No. 3 / Tuesday, January 6, 1998 / Rules and Regulations

exempting gasoline because it does not

meet the NFPA 4 criteria, and EPA

believes it does not represent a

significant threat to the public of vapor

cloud explosions.

EPA received 16 letters supporting the

exemption of naturally occurring

hydrocarbons prior to initial processing.

One commenter suggested modifying

the exemption to incorporate sitespecific factors because conditions

conducive to vapor cloud explosions

might exist at some facilities with

exempted flammable substances,

particularly in the case of oil and gas

production facilities located adjacent to

chemical production facilities. EPA

recognizes that there may be cases

where a facility may not be subject to

the RMP requirements because of this

exemption, but where the potential for

vapor cloud explosions may exist.

Neither Congress nor EPA intended the

List Rule to capture every substance that

may pose a hazard in particular

circumstances. Instead, the statute

required EPA to select the chemicals

posing the greatest risk of serious effects

from accidental releases. To implement

these criteria, EPA focused primarily on

chemicals that posed the most

significant hazards because site-specific

factors vary too greatly to be considered

at the listing stage of regulation. EPA

believes the hazards of naturally

occurring hydrocarbon mixtures prior to

entry into a natural gas processing plant

or petroleum refining process unit do

not warrant regulation. The general duty

clause of section 112(r)(1) would apply

when site-specific factors make an

unlisted chemical extremely hazardous.

Also, the particular risk cited by the

commenter probably would be

addressed by the RMP Rule even with

the exemption as promulgated today. In

the case of a chemical facility located

adjacent to an oil and gas production

facility, the owner or operator of the

chemical facility is likely to have

processes covered due to other regulated

substances and would have to consider

site-specific conditions such as the

presence of an adjacent oil and gas

production facility. Therefore, it is

inappropriate to condition this

exemption on site-specific factors.

C. Clarification of Threshold

Determination of Regulated Flammable

Substances in Mixtures

To clarify threshold determination for

regulated flammable substances in

mixtures, EPA is taking final action 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 704–1996.

In its proposed rule, to define NFPA

4, EPA cited and proposed to

incorporate by reference NFPA 704,

Standard System for the Identification

of Fire Hazards of Materials (1990

edition). For the definition and

determination of boiling point and flash

point, EPA cited and proposed to

incorporate by reference NFPA 321,

Standard on the Basic Classification of

Flammable and Combustible Liquids

(1991 edition). In this final rule, EPA is

updating these references and

incorporating by reference the 1996

edition of NFPA 704 and the 1996

edition of NFPA 30, Flammable and

Combustible Liquids Code, which

replaces NFPA 321.

Nine comments were submitted

supporting this clarification. No

opposing comments were submitted.

D. Definition of Stationary Source

EPA is promulgating the amendments

to the definition of stationary source

that were proposed on April 15, 1996.

First, EPA is clarifying that the

exemption for regulated substances in

transportation, or in storage incident to

such transportation, is not limited to

pipelines. In addition, EPA is modifying

the definition of stationary source to

clarify that naturally occurring

hydrocarbon reservoirs are not

stationary sources or parts of stationary

sources. Finally, EPA is modifying 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.

EPA considers the transportation

exemption to include storage fields for

natural gas where gas taken from

pipelines is stored during non-peak

periods, to be returned to the pipelines

when needed. Such storage fields

include, but are not limited to, depleted

oil and gas reservoirs, aquifers, mines,

and caverns (e.g., salt caverns). For

purposes of this regulation, this type of

storage is incident to transportation and,

therefore, is not subject to the RMP rule.

The transportation exemption also

applies to liquefied natural gas (LNG)

facilities 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. These

facilities include those used to liquefy

natural or synthetic gas or used to

transfer, store, or vaporize LNG in

conjunction with pipeline

transportation.

EPA believes there still may be

potential for confusion regarding the

jurisdiction and regulatory

responsibility of EPA and DOT for

pipelines and for transportation

containers at stationary sources.

‘‘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, the 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 confusion

regarding transportation containers and

will coordinate with DOT to ensure that

compatible interpretations about

regulatory coverage are provided to the

regulated community.

EPA received 15 letters in support of

the exemption of transportation

activities from the definition of

stationary source. No one opposed this

exemption. A number of commenters,

however, believed the modifications

would not eliminate overlap and

confusion between EPA and DOT rules.

A number of commenters also favored

exempting from the stationary source

definition transportation containers no

longer under active shipping papers and

transportation containers connected to

equipment for purposes of temporary

storage, loading, or unloading. Some

commenters stated that EPA would be

undermining DOT’s authority by

regulating activities that are under DOT

jurisdiction. Four commenters

recommended exempting all containers

that are suitable for transportation.

EPA developed the transportation

exemptions discussed here in

consultation with DOT. EPA’s

regulations do not supersede or limit

DOT’s authorities and, therefore, are in

compliance with CAA section 310. EPA

believes these provisions are consistent

with other EPA regulations, such as the

Emergency Planning and Community
Federal Register / Vol. 63, No. 3 / Tuesday, January 6, 1998 / Rules and Regulations 643

Right-to-Know Act (EPCRA) regulations

under parts 355 and 370. EPA disagrees

that suitability for transportation should

be the criterion for determining whether

a container should be considered part of

the stationary source. For example, EPA

believes that a railroad tank car

containing a regulated substance could

be considered a stationary source or part

of a stationary source, even though the

tank car is ‘‘suitable for transportation.’’

Such a tank car could remain at one

location for a long period of time,

serving as a storage container, and could

pose a hazard to the community. EPA

considers a container to be in

transportation as long as it is attached

to the motive power that delivered it to

the site (e.g., a truck or locomotive). If

a container remains attached to the

motive power that delivered it to the

site, even if a facility accepts delivery,

it would be in transportation, and the

contents would not be subject to

threshold determination. As stated

earlier, EPA will continue to work with

DOT to avoid regulatory confusion.

EPA agrees with commenters who

stated that active shipping papers may

not be a suitable criterion for

determining whether a container is in

transportation. EPA is aware that

shipping papers are not always

generated, nor are they required under

DOT rules. Therefore, EPA has modified

the definition of stationary source to

remove the reference to active shipping

papers. EPA also has modified the

definition to remove the reference to

temporary storage. This reference may

have been confused with storage

incident to transportation.

EPA has received questions regarding

the statement in the stationary source

definition that properties shall not be

considered contiguous solely because of

a railroad or gas pipeline right-of-way.

In response to these questions, EPA is

clarifying this statement by deleting the

word ‘‘gas.’’ EPA always intended that

neither a railroad right-of-way nor any

pipeline right-of-way should cause

properties to be considered contiguous.

E. Applicability to Outer Continental

Shelf

EPA is providing an applicability

exception for sources on the outer

continental shelf (OCS sources) to

clarify that Part 68 does not apply to

these sources. This 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. Eleven commenters supported

this exception, and no one opposed it.

III. Summary of Revisions to the Rule

EPA is amending several sections of

part 68 of title 40 of the Code of Federal

Regulations.

In § 68.3, the definition of stationary

source is revised. The revised definition

specifically states that naturally

occurring hydrocarbon reservoirs are

not stationary sources or parts of

stationary sources. The definition states

that exempt transportation includes, but

is not limited to, transportation

activities subject to oversight or

regulation 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. In addition, the agency has made

non-substantive wording changes to

improve the clarity of this definition.

Several new definitions are added for

§ 68.3, for condensate, crude oil, field

gas, natural gas processing plant,

petroleum refining process unit, and

produced water.

Section 68.10 is amended to clarify

that part 68 does not apply to OCS

sources.

Several revisions are made to § 68.115

on threshold determination. Section

68.115(b)(2) is 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 modification to

§ 68.115(b)(2) exempts 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

exempt from threshold determination.

Section 68.115(b)(3), on concentrations

of a regulated explosive substance in a

mixture, is deleted, and §§ 68.115(b)(4),

68.115(b)(5), and 68.115(b)(6) are

redesignated as §§ 68.115(b)(3),

68.115(b)(4), and 68.115(b)(5),

respectively.

Section 68.130 is modified by the

deletion of (a), explosives listed by DOT

as Division 1.1. Section 68.130(b) is

redesignated as §§ 68.130(a), and

§§ 68.130(c) as 68.130(b).

IV. Judicial Review

Under section 307(b)(1) of the Clean

Air Act (CAA), judicial review of the

actions taken by this final rule is

available only on the filing of a petition

for review in the U.S. Court of Appeals

for the District of Columbia Circuit

within 60 days of today’s publication of

this action. Under section 307(b)(2) of

the CAA, the requirements that are

subject to today’s notice may not be

challenged later in civil or criminal

proceedings brought by EPA to enforce

these requirements.

V. Required Analyses

A. Executive Order 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, competition, 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 that this 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

EPA has determined that it is not

necessary to prepare a regulatory

flexibility analysis in connection with

this final rule. EPA has also determined

that this rule will not have a significant

negative economic impact on a

substantial number of small entities.

This final rule will not have a

significant negative impact on a

substantial number of small entities

because it reduces the number of

substances that would be used to

identify stationary sources for regulation

and provides exemptions that will

reduce the number of stationary sources

subject to the accidental release

prevention requirements.
644 Federal Register / Vol. 63, No. 3 / Tuesday, January 6, 1998 / Rules and Regulations

C. Paperwork Reduction

This rule does not include any

information collection requirements for

OMB to review under the provisions of

the Paperwork Reduction Act.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local,

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation of why that

alternative was not adopted. Before EPA

establishes any regulatory requirements

that may significantly or uniquely affect

small governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local, and

tribal governments, in the aggregate, or

the private sector in any one year.

Today’s rule will reduce the number of

sources subject to part 68. Thus, today’s

rule is not subject to the requirements

of sections 202 and 205 of the UMRA.

For the same reason, EPA has

determined that this rule contains no

regulatory requirements that might

significantly or uniquely affect small

governments.

E. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A) as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, EPA

submitted 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 General Accounting

Office prior to publication of the rule in

today’s Federal Register. This rule is

not a ‘‘major rule’’ as defined by 5

U.S.C. 804(2).

F. National Technology Transfer and

Advancement Act

Under section 12(d) of the National

Technology Transfer and Advancement

Act (‘‘NTTAA’’), the Agency is required

to use voluntary consensus standards in

its regulatory activities unless to do so

would be inconsistent with applicable

law or otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures,

business practice, etc.) which are

developed or adopted by voluntary

consensus standard bodies. Where

available and potentially applicable

voluntary consensus standards are not

used by EPA, the Act requires the

Agency to provide Congress, through

the Office of Management and Budget,

an explanation of the reasons for not

using such standards.

EPA developed its list of regulated

flammable substances for this rule based

on analysis of the hazards of flammable

substances conducted in a review of the

EPCRA section 302 list. As part of this

analysis, EPA identified and evaluated

existing listing and classification

systems, including listing and

classification systems developed for

voluntary consensus standards. This

final rule incorporates, by reference, the

use of a voluntary consensus standard to

identify the chemicals which are

covered according to their flammability,

namely NFPA 704, ‘‘Standard System

for the Identification of the Hazards of

Materials for Emergency Response.’’

EPA identified no other potentially

applicable voluntary consensus

standards.

List of Subjects in 40 CFR Part 68

Environmental protection, Chemicals,

Chemical accident prevention, Clean

Air Act, Extremely hazardous

substances, Hazardous substances,

Intergovernmental relations, Reporting

and recordkeeping requirements.

Dated: December 18, 1997.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I, subchapter

C, part 68 of the Code of Federal

Regulations is amended as follows:

PART 68—CHEMICAL ACCIDENT

PREVENTION PROVISIONS

The authority citation for part 68

continues to read as follows:

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

7661–7661f.

Subpart A—General

2. Section 68.3 is 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, classified as North

American Industrial Classification

System (NAICS) code 211112

(previously Standard Industrial

Classification (SIC) code 1321).

* * * * *

Petroleum refining process unit means

a process unit used in an establishment

primarily engaged in petroleum refining

as defined in NAICS code 32411 for

petroleum refining (formerly SIC code

2911) and used for the following:

Producing transportation fuels (such as

gasoline, diesel fuels, and jet fuels),

heating fuels (such as kerosene, fuel gas

distillate, and fuel oils), or lubricants;

Separating petroleum; or 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,
Federal Register / Vol. 63, No. 3 / Tuesday, January 6, 1998 / Rules and Regulations 645

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. 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. A stationary

source includes transportation

containers used for storage not incident

to transportation and transportation

containers connected to equipment at a

stationary source for loading or

unloading. 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. A stationary source does

not include naturally occurring

hydrocarbon reservoirs. Properties shall

not be considered contiguous solely

because of a railroad or pipeline rightof-way.

* * * * *

3. Section 68.10 is amended by

adding a paragraph (f) to read as

follows:

§ 68.10 Applicability.

* * * * *

(f) The provisions of this part shall

not apply to an Outer Continental Shelf

(‘‘OCS’’) source, as defined in 40 CFR

55.2.

Subpart F—Regulated Substances for

Accidental Release Prevention

4. Section 68.115 is amended by

revising paragraph (b) introductory text

and paragraph (b)(2); removing

paragraph (b)(3); and by redesignating

paragraphs (b)(4) through (b)(6) as (b)(3)

through (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 Hazards of

Materials for Emergency Response,

National Fire Protection Association,

Quincy, MA, 1996. 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–O8, 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. Boiling point and

flash point shall be defined and

determined in accordance with NFPA

30, Flammable and Combustible Liquids

Code, National Fire Protection

Association, Quincy, MA, 1996.

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–O8, 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. 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 amended by

removing paragraph (a) and

redesignating paragraphs (b) and (c) as

paragrpahs (a) and (b). The tables to the

section remain unchanged.

[FR Doc. 98–267 Filed 1–5–98; 8:45 am]

BILLING CODE 6560–50–P