[Federal Register Volume 85, Number 16 (Friday, January 24, 2020)]
[Rules and Regulations]
[Pages 4225-4229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00440]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 51
[Docket No: FR-6054-F-02]
RIN 2506-AC45
Conforming the Acceptable Separation Distance (ASD) Standards for
Residential Propane Tanks to Industry Standards
AGENCY: Office of the Assistant Secretary for Community Planning and
Development, HUD.
ACTION: Final rule.
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SUMMARY: This final rule reduces regulatory and cost burden on
communities that may be restricted in their ability to site HUD-
assisted projects, by allowing HUD-assisted projects near stationary
aboveground propane storage tanks with a capacity of 1,000 gallons or
less if the storage tanks comply with National Fire Protection
Association (NFPA) 58 (2017). Based on consideration of public
comments, HUD is adopting this 1,000-gallon limit in lieu of the 250-
gallon limit contemplated in the proposed rule. This final rule
incorporates by reference NFPA 58 (2017), a voluntary consensus
standard for public safety that establishes safety standards used by
the propane industry and operators regarding storage, handling,
transportation, and use of propane.
DATES: Effective Date: February 24, 2020. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of February 24, 2020.
FOR FURTHER INFORMATION CONTACT: Danielle Schopp, Director, Office of
Environment and Energy, Office of Community Planning and Development,
U.S. Department of Housing and Urban Development, 451 7th Street SW,
Washington, DC 20410; telephone number 202-402-5226 (this is not a
toll-free number). Persons with hearing or speech impairments may
access this number through TTY by calling the Federal Relay Service at
800-877-8339 (this is a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
On December 10, 2018, HUD published a rule in the Federal Register,
at 83 FR 63457, which proposed expanding HUD's ability to approve
assistance for projects sited near propane storage tanks (otherwise
known as ``Liquified Petroleum Gas containers'' or ``LPG containers'').
The rule proposed amending HUD regulations at 24 CFR part 51, subpart
C, which establish the Acceptable Separation Distance (ASD) that must
be kept between HUD-assisted projects and containers of hazardous
substances, by creating an exception for aboveground propane storage
tanks of a capacity of 250 gallons or less if the storage tank complies
with NFPA 58 (2017), a voluntary consensus standard that establishes
safety standards used by the propane industry and operators regarding
storage, handling, transportation, and use of propane, as well as all
underground storage tanks.
HUD's proposed rule was intended to modernize outdated codified
safety
[[Page 4226]]
standards. HUD's current standards, codified at 24 CFR part 51, subpart
C, are based on the findings of studies conducted by the Department, in
1975 and 1982.\1\ The effect of these standards is to prescribe the ASD
of HUD-assisted projects from specific hazardous operations, unless
appropriate mitigating measures are implemented. Substances deemed
hazardous include petrochemical products, such as propane. HUD-assisted
projects include the development, construction, rehabilitation,
modernization, or conversion with HUD subsidy, grant assistance, loan,
loan guarantee, or mortgage insurance of any project intended for
residential, institutional, recreational, commercial, or industrial
use.
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\1\ Safety Consideration in Siting Housing Projects, prepared by
Arthur D. Little Inc., 1975; and Urban Development Siting with
Respect to Hazardous Commercial/Industrial Facilities, by Rolf
Jensen and Associates Inc., 1982.
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Mitigation measures can be costly and limit choices for siting a
HUD-assisted project. HUD's experience has been that there are
significant practical and economic difficulties in mitigating off-site
residential propane tanks located on adjacent properties. HUD has
recently provided waivers for approval of HUD-assisted sites that have
propane tanks in compliance with NFPA 58 (2017) on the basis that such
compliance mitigated any danger to HUD-assisted projects sited adjacent
to the hazard.
Based on HUD's experience, HUD issued its proposed rule to
streamline and update its current rule.
II. Changes and Clarifications Made in This Final Rule
This final rule follows publication of the December 10, 2018,
proposed rule and takes into consideration the public comments received
on the proposed rule. In response to public comment, a discussion of
which is presented in the following section of this preamble, and in
further consideration of issues addressed at the proposed rule stage,
the Department is making changes, described below, in this final rule.
A. Propane Tanks of up to 1,000 Gallons Exempted From Hazard ASD
Restrictions
HUD received several comments requesting reconsideration of the
250-gallon limit for aboveground propane tanks exempted from HUD's ASD
requirements. After performing further analysis on common residential
tank sizes and potential risks posed by larger tanks, HUD has
determined that exempting tanks up to 1,000 gallons would increase the
rule's effectiveness without posing additional risk. As such, the
definition of ``hazard'' in Sec. 51.201 has been revised to exempt
tanks up to 1,000 gallons. The justification for this change is
described below.
1. Common Residential Tank Sizes
Typical propane consumption and the range of typical tank sizes
vary widely between warmer and cooler climates. An average-size modern
home using high-efficiency propane heating equipment and other
appliances in a warm climate region can expect to use 194 to 258
gallons per year, while the same home in a cold climate region would
typically use 991 to 1,844 gallons per year.\2\
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\2\ Energy and Environmental Analysis of Propane Energy Pod
Homes, Prepared for the Propane Education & Research Council, 2011.
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The same variables that impact propane consumption naturally also
impact the choice of propane tank sizing. In addition, the average
customer, especially in a cold climate prefers to minimize the
frequency of refueling to ensure that they don't run out given the high
heating loads they experience in the winter. Propane prices also
fluctuate with the market throughout the year and tend to be on the
higher side during the heating season and lower in the summer. Larger
tanks allow customers to buy larger quantities of propane during
periods of lower prices resulting in better savings. They also save on
delivery related fees by having fewer fill ups. The tank size thus
becomes a cost controlling factor for the customer, and tank sizes up
to 1,000 gallons are regularly used for residential purposes.\3\
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\3\ See NFPA 58 LP-Gas Code Handbook (2017).
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2. Safety of 1,000-Gallon Propane Tanks
The reliability of propane tanks has increased significantly over
the past 30 years and studies suggest that the evolution of industry
safety practices has reduced the probability of propane tank
failure.\4\ Studies by the NFPA, documented in the rule's Regulatory
Impact Analysis, show that propane is not a leading cause of fires or
listed as a source of residential structure fires in the United States.
Propane tanks are extremely durable. In a study performed by the U.S.
Department of Defense and the Energy Research and Development
Administration, these tanks sustained very little damage even from the
energy of a simulated nuclear blast.\5\ This experiment and others
conducted in the propane industry demonstrate that propane tank
explosions are difficult and rare.
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\4\ See Ahrens, M. (2017), Ahrens, M. (2018), Flynn, J. (2010),
and Hall. J.R. (2014).
\5\ The Effects of Nuclear Weapons, Compiled and edited by
Samuel Glasstone and Philip J. Dolan., 1977.
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Furthermore, this rule does not remove all safe distance
requirements for LPG containers sited near HUD-assisted projects. All
tanks exempted from HUD's ASD requirements under this rule must be
fully compliant with NFPA (2017) standards, including NFPA separation
distance requirements. Tanks locations must meet a separation distance
between the container and important buildings \6\ or line of adjoining
property that can be built upon, in accordance with the NFPA 58. Tanks
between 125 and 500 gallons must be at least 10 feet apart from
important buildings or property lines of adjoining property that can be
built upon, while tanks between 501 and 1,000 gallons must be at least
25 feet apart. Under NFPA 58 and this rule's revision of 24 CFR part
51, tanks under 125 gallons would not require a separation distance.
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\6\ According to the NFPA 58 LP-Gas Code Handbook, a building
can be considered important for a number of reasons such as high
replacement value, its human occupancy, or vital importance of
contents to a business. A building with characteristics that hinder
emergency responders' access and ability to safely apply water to a
tank or act as an impediment to applying water should also be
considered an important building.
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For the reasons described above, HUD has determined that LPG
containers with capacities of up to 1,000 gallons that comply with NFPA
58 (2017) will no longer be subject to the hazard restrictions posed by
24 CFR part 51. Since the separation distance imposed by NFPA 58
compliance is sufficient to ensure the safety of HUD-assisted projects,
increasing the size of tank covered by this exception will reduce
regulatory and cost burden on even more projects and communities
without any significant additional risk.
B. Other Changes and Clarifications
One commenter stated that it was unclear whether the tank size
referenced in Sec. 51.201 definition of ``hazard'' was to be measured
in water gallon capacity or propane gallon capacity. As a result, HUD
has amended the language of Sec. 51.201 to clarify that tanks are
measured in water gallon capacity. This language was clarified in order
to align the rule with language in NFPA 58 (which uses water capacity
to determine ASD standards). The American Society of Mechanical
Engineers, which certifies propane tanks, also rates tanks in terms of
their water capacity.
Additionally, a commenter found the language used to describe
propane tanks (``Containers which are designed to hold
[[Page 4227]]
liquefied propane gas . . .'') confusing. To increase clarity and
accuracy, HUD is amending the phrase to read: ``Containers which are
used to hold liquefied petroleum gas.'' First, replacing ``designed''
with ``used'' more accurately describes the scope of the definition,
since some containers that are not designed to hold LPG are used to
hold it nonetheless, while still complying with NFPA safety
requirements. Second, HUD is replacing ``liquified propane gas'' with
``liquefied petroleum gas'' because the gas used in heating systems is
sometimes comprised of not only propane, but butane as well. These
changes will increase consistency between this final rule and NFPA 58
(2017).
III. Discussion of Public Comments Received on December 10, 2018,
Proposed Rule
The public comment period for the proposed rule closed on February
8, 2019. HUD received six public comments in response to the proposed
rule. These comments were submitted by a nationally recognized fire
safety codes and standards organization, the national trade group for
the propane industry, a nonprofit affordable housing developer, and
private citizens.
None of the commenters opposed conforming the ASD standards for
residential propane tanks to industry standards. Commenters were
generally supportive of the proposed rule, but, as provided in the
following section of this Preamble, they also recommended changes or
clarifications, several of which are discussed above.
Comment: How will this rule impact HUD-assisted projects sited near
multiple propane tanks, or propane tanks stored near other gases.
HUD Response: Under this final rule, LPG tanks of 1,000 gallons or
less are not subject to ASD requirements, regardless of how many tanks
are present, if they comply with NFPA code 58 (2017). The exclusion
from the ASD requirement applies only to LPG tanks. If there are other
gases stored in stationary aboveground containers, the ASD must be
calculated for those nonpropane containers.
Comment: HUD should not exempt all underground propane containers
from hazard restrictions, but only those which comply with applicable
Federal, State, or local safety standards, because improperly spaced
underground containers can leak gas into underground structures.
HUD Response: HUD is declining to implement this change in this
final rule, as this rule is amending safety standards relating to fire
and blast hazards, which do not take into consideration other issues
such as vapor contamination. HUD performs environmental review of most
projects, including multifamily housing and new construction, which
captures information related to vapor contamination to document
compliance with the standards at 24 CFR 50.3(i) and 58.5(i)(2), using
investigative techniques including but not limited to ASTM Phase I and
Phase II Environmental Site Assessment.\7\ Furthermore, this rule is
conforming the relevant regulation with HUD's longstanding policy of
considering underground tanks exempt from the ASD restrictions listed
in 24 CFR 51 subpart C because they are shielded by the topography from
posing fire or blast risks to HUD-assisted projects and, therefore, do
not meet the definition of ``hazard'' at Sec. 51.201. This is also
consistent with HUD's treatment of LPG pipelines in existing
regulations, in which LPG pipelines are excluded from the definition of
``hazard'' so long as they are either underground or comply with
Federal, State, and local safety standards.
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\7\ HUD's environmental review regulations can be found at 24
CFR parts 50, 51, 55, and 58.
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Comment: HUD should update the FHA Single Family Housing Policy
Handbook to indicate that FHA can assist in the purchase of properties
with underground propane tanks.
HUD Response: This final rule focuses on updates to the regulation
at 24 CFR 51 subpart C, and updates to subregulatory guidance are
beyond the scope of this rulemaking. Nevertheless, HUD agrees that the
referenced guidance should reflect these revisions.
Comment: The rule only incorporates NFPA 58 by reference for LPG
containers 250 gallons or less which are exempt from hazard
restrictions. HUD should incorporate NFPA 58 by reference for all LPG
containers regardless of size in order to maintain a consistent
approach to handling LPG as a hazard.
HUD Response: As discussed above, in this final rule HUD is
incorporating NFPA 58 (2017) by reference for LPG containers 1,000
gallons or less that are exempt from hazard restrictions. Containers
larger than 1,000 gallons will still be defined as ``hazards'' and will
still need to comply with HUD's safety standards at 24 CFR part 51,
subpart C. This rulemaking is intended to mitigate regulatory and cost
burden related to residential propane tanks (which typically hold 1,000
gallons or less) \8\ and is not intended to address commercial,
industrial, or agricultural propane tanks (which typically hold more
than 1,000 gallons).\9\
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\8\ See NFPA 58 LP-Gas Code Handbook (2017).
\9\ Ibid.
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IV. Incorporation by Reference
This rule incorporates the following voluntary consensus standard
for siting of HUD-assisted projects near aboveground propane storage
tanks that hold up to 1000 gallons: NFPA 58 Liquefied Petroleum Gas
Code (2017). The NFPA develops building, fire, and electrical safety
codes and standards. Federal agencies frequently use these codes and
standards as the basis for developing Federal regulations concerning
safety. NFPA 58 (2017) provides industry benchmark and operational
information and standards for safe propane storage, handling,
transportation, and use. NFPA 58 (2017) mitigates risks and ensures
safe installations, to prevent failures, leaks, and tampering that
could lead to fires and explosions. The regulation cannot account for
future editions of NFPA that do not yet exist. Therefore, if HUD wishes
to revise the standard in the future to incorporate newer editions of
NFPA 58 this would require further rulemaking.
NFPA 58 (2017) is available online, via read-only access, at
https://www.nfpa.org/codes-and-standards/all-codes-and-standards/list-of-codes-and-standards/detail?code=58. Members of the public may visit
the link and create a username and password to view the free-access
edition. The standard may also be obtained from the National Fire
Protection Association at 1 Batterymarch Park, Quincy, MA 02169,
telephone number (800) 344-3555, fax number (800) 593-6372.
V. Findings and Certifications
Regulatory Review--Executive Orders 12866 and 13563
Under Executive Order 12866 (Regulatory Planning and Review), a
determination must be made whether a regulatory action is significant
and, therefore, subject to review by the Office of Management and
Budget (OMB) in accordance with the requirements of the order.
Executive Order 13563 (Improving Regulations and Regulatory Review)
directs executive agencies to analyze regulations that are ``outmoded,
ineffective, insufficient, or excessively burdensome, and to modify,
streamline, expand, or repeal them in accordance with what has been
learned.'' Executive Order 13563 also directs that, where relevant,
feasible, and consistent with regulatory objectives, and to the extent
permitted by law, agencies are to
[[Page 4228]]
identify and consider regulatory approaches that reduce burdens and
maintain flexibility and freedom of choice for the public. HUD has
examined the economic, budgetary, legal, and policy implications of
this action and has determined that this final rule is a significant
regulatory action under section 3(f) of Executive Order 12866 (but not
an economically significant action). HUD has prepared a regulatory
impact analysis that addresses the costs and benefits of the final
rule. The analysis is available at Regulations.gov and is part of the
docket file for this rule.
Executive Order 13771
Executive Order 13771, entitled ``Reducing Regulation and
Controlling Regulatory Costs,'' was issued on January 30, 2017. This
final rule is an Executive Order 13771 deregulatory action. Details on
the estimated cost savings of this rule can be found in the rule's
economic analysis.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small nonprofit organizations,
and small governmental jurisdictions.
This rule updates a codified regulation to reduce regulatory and
cost burden on communities that may be restricted in their ability to
site HUD-assisted projects because of the presence of stationary
aboveground propane storage tanks that may be nearby. Specifically, the
rule allows the siting of HUD-assisted projects near stationary
aboveground propane storage tanks with a capacity of 1,000 gallons or
less if the storage tank complies with NFPA Code 58 (2017). HUD has
determined that the rule would result in the reduction of costly
mitigation measures.
Small entities affected by the rule include owner-occupied single
family, small public housing authorities, and a limited number of
multifamily projects. Notwithstanding, HUD has determined that the
rule's impact will be to reduce administrative burdens and generate
cost savings estimated to be from $200,000-$18,000,000 per year. Due to
economies of scale and the cost of compliance with the existing rule,
these reductions of administrative burden will provide relatively
greater benefit to entities that are small. This rule would have
minimal impact on small firms because they would not be required to
modify current operational procedures. The rule will eliminate the need
for costly waiver processes and mitigation costs on the part of these
small entities. For example, as described in the Regulatory Impact
Analysis, of 1200 small rental properties in Mississippi applying for
disaster recovery assistance after Hurricane Katrina, 750 required
additional compliance measures or a waiver under current 24 CFR part 51
subpart C in order to be eligible for assistance. Removing such
obstacles to assistance would have particularly beneficial impact for
similarly situated small rental properties, and other small entities,
that are assisted going forward. Similarly, as discussed in the
Regulatory Impact Analysis, HUD's 2017 waiver for certain Community
Development Block Grant and Home Investment Partnerships programs in
Vermont included both residences and small businesses; specifically,
restaurants. In waiving the requirements of the existing regulation as
to these small businesses, HUD noted that in 2011 there were 1,346
restaurants in Vermont using propane. These restaurants were affected
by the cost or practicability of compliance with the existing rule, and
these costs will be saved in future projects under this rule.
Accordingly, the undersigned certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
Environmental Impact
A Finding of No Significant Impact with respect to the environment
for this rule has been made in accordance with HUD regulations at 24
CFR part 50, which implement section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The Finding of
No Significant Impact is available for public inspection between 8 a.m.
and 5 p.m., weekdays in the Regulations Division, Office of General
Counsel, U.S. Department of Housing and Urban Development, 451 7th
Street SW, Room 10276, Washington, DC 20410-5000. Due to security
measures at the HUD Headquarters building, please schedule an
appointment to review the Finding by calling the Regulations Division
at (202) 708-3055 (this is not a toll-free number). Individuals with
speech or hearing impairments may access this number via TTY by calling
the Federal Relay Service at (800) 877-8339. The Finding of No
Significant Impact will also be available for review in the docket for
this rule on Regulations.gov.
Federalism Impact
Executive Order 13132 (entitled ``Federalism'') prohibits, to the
extent practicable and permitted by law, an agency from promulgating a
regulation that has federalism implications and either imposes
substantial direct compliance costs on State and local governments and
is not required by statute, or preempts State law, unless the relevant
requirements of section 6 of the Executive order are met. This rule
does not have federalism implications and does not impose substantial
direct compliance costs on State and local governments or preempt State
law within the meaning of the Executive order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for Federal agencies to
assess the effects of their regulatory actions on State, local, and
tribal governments and on the private sector. This rule would not
impose any Federal mandates on any State, local, or tribal governments,
or on the private sector, within the meaning of UMRA.
List of Subjects in 24 CFR Part 51
Airports, Hazardous substances, Housing standards, Incorporation by
reference, Noise control.
Accordingly, for the reasons stated in the foregoing preamble, HUD
amends 24 CFR part 51 as follows:
PART 51--ENVIRONMENTAL CRITERIA AND STANDARDS
0
1. The authority citation for 24 CFR part 51 subpart C continues to
read as follows:
Authority: 42 U.S.C. 3535(d), unless otherwise noted.
0
2. In Sec. 51.201, revise the definition of ``hazard'' to read as
follows:
Sec. 51.201 Definitions.
* * * * *
Hazard--means any stationary container which stores, handles, or
processes hazardous substances of an explosive or fire prone nature.
The term ``hazard'' does not include:
(1) Pipelines for the transmission of hazardous substances, if such
pipelines are located underground, or comply with applicable Federal,
State and local safety standards;
(2) Containers with a capacity of 100 gallons or less when they
contain common liquid industrial fuels, such as gasoline, fuel oil,
kerosene, and crude oil, since they generally would pose no
[[Page 4229]]
danger in terms of thermal radiation or blast overpressure to a
project;
(3) Facilities that are shielded from a proposed HUD-assisted
project by the topography, because these topographic features
effectively provide a mitigating measure already in place;
(4) All underground containers; and
(5) Containers used to hold liquefied petroleum gas with a
volumetric capacity not to exceed 1,000 gallons water capacity, if they
comply with National Fire Protection Association (NFPA) 58. NFPA 58,
Liquefied Petroleum Gas Code, 2017 Edition, copyright 2016 is
incorporated by reference into this section with the approval of the
Director of the Federal Register, under 5 U.S.C. 552(a) and 1 CFR part
51. All approved material is available for inspection at HUD's Office
of Environment and Energy, 202-402-5226, and is available from National
Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02169,
telephone number 800-344-3555, fax number 800-593-6372, www.nfpa.org.
It is also available for inspection at the National Archives and
Records Administration (NARA). For information on the availability of
this material at NARA, email [email protected] or visit
www.archives.gov/federal-register/cfr/ibr-locations.html. Persons with
hearing or speech impairments may access the numbers above through TTY
by calling the Federal Relay Service, toll-free, at 800-877-8339.
* * * * *
Dated: January 9, 2020.
David C. Woll, Jr.,
Principal Deputy Assistant Secretary for Community Planning and
Development.
[FR Doc. 2020-00440 Filed 1-23-20; 8:45 am]
BILLING CODE 4210-67-P