Standards of Performance for Petroleum Refineries for Which Construction, Reconstruction, or Modification Commenced After May 14, 2007, 78546-78549 [E8-29976]

Download as PDF 78546 Federal Register / Vol. 73, No. 246 / Monday, December 22, 2008 / Rules and Regulations ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA–HQ–OAR–2007–0011; FRL–8753–7] RIN 2060–AN72 Standards of Performance for Petroleum Refineries for Which Construction, Reconstruction, or Modification Commenced After May 14, 2007 AGENCY: Environmental Protection Agency (EPA). ACTION: Interim final rule; stay. SUMMARY: EPA is making an interim final determination to extend the stay of certain requirements in the standards of performance for petroleum refineries. DATES: This interim final determination is effective on December 26, 2008, and will expire on February 24, 2009. ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2007–0011. All documents in the docket are listed in the Federal Docket Management System index at https://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through https://www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the Air and Radiation Docket is (202) 566–1742. FOR FURTHER INFORMATION CONTACT: Mr. Robert B. Lucas, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143–01), Environmental Protection Agency, Research Triangle Park, NC 27711, telephone number: (919) 541–0884; fax number: (919) 541–0246; e-mail address: lucas.bob@epa.gov. SUPPLEMENTARY INFORMATION: Regulated Entities. Categories and entities potentially regulated by this action include: Category NAICS Code 1 Industry ........................................................................................................................................... Federal government ........................................................................................................................ State/local/tribal government .......................................................................................................... 32411 ............................ ............................ mstockstill on PROD1PC66 with RULES3 1 North Examples of regulated entities Petroleum refiners. Not affected. Not affected. American Industry Classification System. This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by the standards for petroleum refineries. To determine whether your facility is regulated by this action, you should examine the applicability criteria in 40 CFR 60.100a. If you have any questions regarding the applicability of the new source performance standards (NSPS) to a particular entity, contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section. Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of the final rule is available on the WWW through the Technology Transfer Network (TTN). Following signature, EPA will post a copy of the final rule on the TTN’s policy and guidance page for newly proposed or promulgated rules at https://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. Organization of This Document. The following outline is provided to aid in locating information in this preamble. I. Background Information II. What action is EPA taking? III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act VerDate Aug<31>2005 19:13 Dec 19, 2008 Jkt 217001 C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Background Information Standards of performance for petroleum refineries were promulgated on June 24, 2008, that included: (1) Final amendments to the existing petroleum refineries NSPS in 40 CFR part 60, subpart J; and (2) a new petroleum refineries NSPS in 40 CFR part 60, subpart Ja (73 FR 35838). The preamble to that rule contained an incorrect effective date and contained an error in the Congressional Review Act (CRA) statement in the Statutory and Executive Order Reviews section. To address that error, the effective date of 40 CFR part 60, subpart Ja was stayed for 60 days until September 26, 2008. PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 The amendments in 40 CFR part 60, subpart J were not affected and remained effective from June 24, 2008. On June 13, 2008, the American Petroleum Institute (API), the National Petrochemical and Refiners Association (NPRA), and the Western States Petroleum Association (WSPA) (collectively referred to as ‘‘Industry Petitioners’’) requested an administrative stay under Clean Air Act section 307(d)(7)(B) of certain provisions of 40 CFR part 60, subpart Ja (Docket Item No. EPA–HQ–OAR–2007– 0011–245). On July 25, 2008, the Industry Petitioners sought reconsideration of the provisions of 40 CFR part 60, subpart Ja for which they had previously requested a stay (Docket Item No. EPA–HQ–OAR–2007–0011– 267). Specifically, Industry Petitioners requested that EPA reconsider the following provisions in subpart Ja: (1) The newly promulgated definition of ‘‘modification’’ for flares (40 CFR 60.100a(c)); (2) the definition of ‘‘flare’’ (40 CFR 60.101a); (3) the fuel gas combustion device sulfur limits as they relate to flares (40 CFR 60.102a(g)(1)); (4) the flow limit for flares (40 CFR 60.102a(g)(3)); (5) the total reduced sulfur and flow monitoring requirements for flares (40 CFR 60.107a(d) and (e)); and (6) the nitrogen oxide (NOX) limit for process heaters (40 CFR 60.102a(g)(2)). Subsequently, on E:\FR\FM\22DER3.SGM 22DER3 mstockstill on PROD1PC66 with RULES3 Federal Register / Vol. 73, No. 246 / Monday, December 22, 2008 / Rules and Regulations August 21, 2008, Industry Petitioners identified additional issues for reconsideration (Docket Item No. EPA– HQ–OAR–2007–0011–246). Industry Petitioners identified a number of issues with the standards for fluid catalytic cracking units (FCCU), fluid coking units (FCU), fuel gas combustion devices, sulfur recovery plants, and delayed coking units. The issues ranged from disagreeing with the best demonstrated technology analyses for FCCU/FCU and delayed coking units to requests for clarification of requirements regarding averaging times for various limits, to identifying inconsistencies in compliance methods, to simple typographical errors. A total of 82 items were identified in this submittal. On August 25, 2008, HOVENSA, LLC (HOVENSA) filed a petition for reconsideration of the following provisions of 40 CFR part 60, subpart Ja: (1) The NOX limit for process heaters (40 CFR 60.102a(g)(2)); (2) the flaring requirements, including the definitions of ‘‘flare’’ and ‘‘modification’’ (40 CFR 60.100a(c), 60.101a, 60.102a(g) through (i), 60.103a(a) and (b)); and (3) the depressurization work practice standard for delayed coking units (40 CFR 60.103a(c)) (Docket Item No. EPA–HQ– OAR–2007–0011–247). The petition also requested that EPA stay the effectiveness of these provisions during the reconsideration process. EPA received a third petition for reconsideration on August 25, 2008, from the Environmental Integrity Project, Sierra Club, and Natural Resources Defense Council (Environmental Petitioners) requesting that EPA reconsider several aspects of 40 CFR part 60, subpart Ja (Docket Item No. EPA–HQ–OAR–2007–0011–243). The petition identified the following issues for reconsideration: (1) EPA’s decision not to promulgate standards for carbon dioxide and methane emissions from refineries; (2) the flaring requirements (40 CFR 60.100a(c), 60.101a, 60.102a(g) through (i), 60.103a(a) and (b)); (3) the NOX limit for FCCU (40 CFR 60.102a(b)(2)); and (4) the particulate matter limit for FCCU (40 CFR 60.102a(b)(1)). Unlike the other Petitioners, Environmental Petitioners did not seek a stay of these provisions during reconsideration. On September 26, 2008, EPA issued a Federal Register notice (73 FR 55751) granting reconsideration of the following issues: (1) The newly promulgated definition of ‘‘modification’’ for flares; (2) the definition of ‘‘flare;’’ (3) the fuel gas combustion device sulfur limits as they apply to flares; (4) the flow limit for flares; (5) the total reduced sulfur and VerDate Aug<31>2005 19:13 Dec 19, 2008 Jkt 217001 flow monitoring requirements for flares; and (6) the NOX limit for process heaters. EPA also granted Industry Petitioners’ and HOVENSA’s request for a 90-day stay for those same provisions under reconsideration. In the Final Rules section of today’s Federal Register, we have published a direct final rule extending the stay until a final decision on the reconsideration has been reached. In the Proposed Rules section of today’s Federal Register, we have also published a parallel proposal extending the stay until a final decision on the reconsideration has been reached. Based on today’s direct final and parallel proposal extending the stay, we are taking this final action, effective for 60 days, beginning on December 26, 2008, to prevent facilities from being out of compliance with provisions, at least some of which, we anticipate modifying upon reconsideration. EPA is providing the public with an opportunity to comment on the stay extension in both the direct final rule and parallel proposal. However, we are not taking comment on this final action. We believe it is appropriate to continue the stay that is currently in place until the direct final action becomes effective to avoid a lapse in the stay and create potential compliance problems with provisions that we believe may need to be revised. II. What action is EPA taking? We are making an interim final determination to extend the stay for 60 days based on our concurrent direct final action and parallel proposal. EPA has determined that a stay is necessary for the provisions under reconsideration. The 90-day stay that began on September 26, 2008, expires on December 25, 2008. At that time, facilities will be required to comply with the final rules as published (73 FR 35838) unless an extension is set in place. EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect (5 U.S.C. 553(b)(3)). EPA believes that notice-andcomment rulemaking before the effective date of this action is impracticable and contrary to the public interest. EPA has stated in the reconsideration and stay notice (73 FR 55751) the reasons for granting the 90day stay. As these reasons remain valid, we believe it is still appropriate for the stay to be in effect until we have reached a final decision on the reconsideration. Because the initial stay expires on December 25, 2008 and the direct final action would not be effective PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 78547 until February 24, 2009, it is not in the public’s best interest to require compliance with the rules as published during the gap between the two dates. Therefore, EPA believes that it is necessary to use the interim final rulemaking process to extend the initial stay while the public has an opportunity to comment on the direct final action. III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review This action is not a ‘‘significant regulatory action’’ under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under the Executive Order. B. Paperwork Reduction Act This action does not impose any new information collection burden. This action results in no changes to the information collection requirements of the NSPS and will have no impact on the information collection estimate of project cost and hour burden previously submitted to OMB. However, the information collection requirements contained in the existing regulation (40 CFR part 60, subpart Ja) under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., have been sent to OMB for approval under EPA ICR number 2263.02. The OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR part 9. C. Regulatory Flexibility Act Today’s interim final rule is not subject to the Regulatory Flexibility Act (RFA), which generally requires an agency to prepare a regulatory flexibility analysis for any rule that will have a significant economic impact on a substantial number of small entities. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA or any other statute. This rule is not subject to notice and comment requirements under the APA or any other statute because, although the rule is subject to the APA, the Agency has invoked the ‘‘good cause’’ exemption under 5 U.S.C. 553(b), therefore, it is not subject to the notice and comment requirement. D. Unfunded Mandates Reform Act This action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531– 1538 for state, local, or tribal governments or the private sector. This action imposes no enforceable duty on any state, local, or tribal governments or E:\FR\FM\22DER3.SGM 22DER3 78548 Federal Register / Vol. 73, No. 246 / Monday, December 22, 2008 / Rules and Regulations the private sector. Therefore, this action is not subject to the requirements of sections 202 and 205 of the UMRA. This action is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This action only extends the stay of certain provisions and does not impose any additional enforceable duty. 501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because the NSPS for petroleum refineries are based on technology performance. E. Executive Order 13132: Federalism Executive Order 13132, entitled ‘‘Federalism’’ (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure ‘‘meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.’’ ‘‘Policies that have federalism implications’’ is defined in the Executive Order to include regulations that have ‘‘substantial direct effects on the states, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.’’ This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This action will not impose direct compliance costs on state or local governments, and will not preempt state law. Thus, Executive Order 13132 does not apply to this action. This action is not subject to Executive Order 13211, ‘‘Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use’’ (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866. mstockstill on PROD1PC66 with RULES3 F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5– VerDate Aug<31>2005 19:13 Dec 19, 2008 Jkt 217001 H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. No. 104– 113; 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. VCS are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by VCS bodies. NTTAA directs EPA to provide Congress, through OMB, explanations when EPA decides not to use available and applicable VCS. This action does not involve technical standards. Therefore, EPA did not consider the use of any VCS. J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 K. Congressional Review Act The Congressional Review Act, 5 U.S.C. 801, et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary, or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of December 26, 2008. EPA will submit a report containing this rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). List of Subjects in 40 CFR Part 60 Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements. Dated: December 12, 2008. Stephen L. Johnson, Administrator. For the reasons cited in the preamble, title 40, chapter I, part 60 of the Code of Federal Regulations is amended as follows: ■ PART 60—[AMENDED] 1. The authority citation for part 60 continues to read as follows: ■ Authority: 42 U.S.C. 7401, et seq. § 60.100a [AMENDED] 2. In § 60.100a, paragraph (c) is stayed from December 26, 2008, until February 24, 2009. ■ § 60.101a [AMENDED] 3. The definition of ‘‘flare’’ in § 60.101a is stayed from December 26, 2008, until February 24, 2009. ■ § 60.102a [AMENDED] 4. In § 60.102a, paragraph (g) is stayed from December 26, 2008, until February 24, 2009. ■ E:\FR\FM\22DER3.SGM 22DER3 Federal Register / Vol. 73, No. 246 / Monday, December 22, 2008 / Rules and Regulations § 60.107a [AMENDED] 5. In § 60.107a, paragraphs (d) and (e) are stayed from December 26, 2008, until February 24, 2009. ■ [FR Doc. E8–29976 Filed 12–19–08; 8:45 am] BILLING CODE 6560–50–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 60 [EPA–HQ–OAR–2007–0011; FRL–8753–8] RIN 2060–AN72 Standards of Performance for Petroleum Refineries for Which Construction, Reconstruction, or Modification Commenced After May 14, 2007 mstockstill on PROD1PC66 with RULES3 AGENCY: Environmental Protection Agency (EPA). ACTION: Direct final rule; stay. SUMMARY: EPA is taking direct final action on the new standards of performance for petroleum refineries. On June 24, 2008, EPA promulgated new standards for petroleum refineries. Following that action, the Administrator received three petitions for reconsideration. In response to the petitions, EPA granted a stay of certain provisions in the new standards. In this action, EPA is extending the stay of the requirements under reconsideration until a final decision is reached on these issues. DATES: This rule is effective on February 24, 2009, without further notice, unless EPA receives adverse comment by January 21, 2009 or receives a request for a public hearing. If EPA receives adverse comment or a hearing request, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. ADDRESSES: Submit your comments, identified by Docket ID No. EPA–HQ– OAR–2007–0011, by one of the following methods: • https://www.regulations.gov: Follow the on-line instructions for submitting comments. • E-mail: a-and-r-Docket@epa.gov. • Fax: (202) 566–9744. • Mail: U.S. Postal Service, send comments to: Air and Radiation Docket (2822T), Docket ID No. EPA–HQ–OAR– 2007–0011, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of two copies. • Hand Delivery: In person or by Courier, deliver comments to: Air and Radiation Docket (2822T), EPA West VerDate Aug<31>2005 21:31 Dec 19, 2008 Jkt 217001 Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 20004. Such deliveries are only accepted during the Docket’s normal hours of operation, and special arrangements should be made for deliveries of boxed information. Instructions: Direct your comments to Docket ID No. EPA–HQ–OAR–2007– 0011. EPA’s policy is that all comments received will be included in the public docket without change and may be made available online at https:// www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through https:// www.regulations.gov or e-mail. The https://www.regulations.gov Web site is an ‘‘anonymous access’’ system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD–ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA’s public docket, visit the EPA Docket Center homepage at https:// www.epa.gov/epahome/dockets.htm. Docket: All documents in the docket are listed in the Federal Docket Management System index at https:// www.regulations.gov. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through https:// www.regulations.gov or in hard copy at the Air and Radiation Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 78549 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566–1744, and the telephone number for the Air and Radiation Docket is (202) 566–1742. We request that you also send a separate copy of each comment to the contact persons listed below (see FOR FURTHER INFORMATION CONTACT). FOR FURTHER INFORMATION CONTACT: Mr. Robert B. Lucas, Office of Air Quality Planning and Standards, Sector Policies and Programs Division, Coatings and Chemicals Group (E143–01), Environmental Protection Agency, Research Triangle Park, NC 27711, telephone number: (919) 541–0884; fax number: (919) 541–0246; e-mail address: lucas.bob@epa.gov. SUPPLEMENTARY INFORMATION: Organization of This Document. The following outline is provided to aid in locating information in this preamble. I. Why is EPA using a direct final rule? II. Does this action apply to me? III. What should I consider as I prepare my comments for EPA? IV. How do I obtain a copy of this document and other related information? V. Background Information VI. What action is EPA taking? VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review B. Paperwork Reduction Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. Why is EPA using a direct final rule? EPA is publishing the action without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the ‘‘Proposed Rules’’ section of today’s Federal Register, we are publishing a separate document that will serve as the proposed rule to extend the stay if adverse comments are received on this direct final action. We will not institute a second comment period on this action. Any parties interested in commenting must do so at E:\FR\FM\22DER3.SGM 22DER3

Agencies

[Federal Register Volume 73, Number 246 (Monday, December 22, 2008)]
[Rules and Regulations]
[Pages 78546-78549]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29976]



[[Page 78545]]

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Part V





Environmental Protection Agency





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40 CFR Part 60



Standards of Performance for Petroleum Refineries for Which 
Construction, Reconstruction, or Modification Commenced After May 14, 
2007; Interim Final Rule, Direct Final Rule; Stay

Federal Register / Vol. 73, No. 246 / Monday, December 22, 2008 / 
Rules and Regulations

[[Page 78546]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2007-0011; FRL-8753-7]
RIN 2060-AN72


Standards of Performance for Petroleum Refineries for Which 
Construction, Reconstruction, or Modification Commenced After May 14, 
2007

AGENCY: Environmental Protection Agency (EPA).

ACTION: Interim final rule; stay.

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SUMMARY: EPA is making an interim final determination to extend the 
stay of certain requirements in the standards of performance for 
petroleum refineries.

DATES: This interim final determination is effective on December 26, 
2008, and will expire on February 24, 2009.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2007-0011. All documents in the docket are listed in the 
Federal Docket Management System index at https://www.regulations.gov. 
Although listed in the index, some information is not publicly 
available, e.g., confidential business information (CBI) or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
https://www.regulations.gov or in hard copy at the Air and Radiation 
Docket, EPA West Building, Room 3334, 1301 Constitution Ave., NW., 
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Public Reading Room is (202) 566-1744, and the telephone 
number for the Air and Radiation Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr. Robert B. Lucas, Office of Air 
Quality Planning and Standards, Sector Policies and Programs Division, 
Coatings and Chemicals Group (E143-01), Environmental Protection 
Agency, Research Triangle Park, NC 27711, telephone number: (919) 541-
0884; fax number: (919) 541-0246; e-mail address: lucas.bob@epa.gov.

SUPPLEMENTARY INFORMATION: 
    Regulated Entities. Categories and entities potentially regulated 
by this action include:

----------------------------------------------------------------------------------------------------------------
                  Category                     NAICS Code \1\            Examples of regulated  entities
----------------------------------------------------------------------------------------------------------------
Industry....................................             32411  Petroleum refiners.
Federal government..........................  ................  Not affected.
State/local/tribal government...............  ................  Not affected.
----------------------------------------------------------------------------------------------------------------
\1\ North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by the 
standards for petroleum refineries. To determine whether your facility 
is regulated by this action, you should examine the applicability 
criteria in 40 CFR 60.100a. If you have any questions regarding the 
applicability of the new source performance standards (NSPS) to a 
particular entity, contact the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.
    Worldwide Web (WWW). In addition to being available in the docket, 
an electronic copy of the final rule is available on the WWW through 
the Technology Transfer Network (TTN). Following signature, EPA will 
post a copy of the final rule on the TTN's policy and guidance page for 
newly proposed or promulgated rules at https://www.epa.gov/ttn/oarpg. 
The TTN provides information and technology exchange in various areas 
of air pollution control.
    Organization of This Document. The following outline is provided to 
aid in locating information in this preamble.

I. Background Information
II. What action is EPA taking?
III. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Background Information

    Standards of performance for petroleum refineries were promulgated 
on June 24, 2008, that included: (1) Final amendments to the existing 
petroleum refineries NSPS in 40 CFR part 60, subpart J; and (2) a new 
petroleum refineries NSPS in 40 CFR part 60, subpart Ja (73 FR 35838). 
The preamble to that rule contained an incorrect effective date and 
contained an error in the Congressional Review Act (CRA) statement in 
the Statutory and Executive Order Reviews section. To address that 
error, the effective date of 40 CFR part 60, subpart Ja was stayed for 
60 days until September 26, 2008. The amendments in 40 CFR part 60, 
subpart J were not affected and remained effective from June 24, 2008.
    On June 13, 2008, the American Petroleum Institute (API), the 
National Petrochemical and Refiners Association (NPRA), and the Western 
States Petroleum Association (WSPA) (collectively referred to as 
``Industry Petitioners'') requested an administrative stay under Clean 
Air Act section 307(d)(7)(B) of certain provisions of 40 CFR part 60, 
subpart Ja (Docket Item No. EPA-HQ-OAR-2007-0011-245). On July 25, 
2008, the Industry Petitioners sought reconsideration of the provisions 
of 40 CFR part 60, subpart Ja for which they had previously requested a 
stay (Docket Item No. EPA-HQ-OAR-2007-0011-267). Specifically, Industry 
Petitioners requested that EPA reconsider the following provisions in 
subpart Ja: (1) The newly promulgated definition of ``modification'' 
for flares (40 CFR 60.100a(c)); (2) the definition of ``flare'' (40 CFR 
60.101a); (3) the fuel gas combustion device sulfur limits as they 
relate to flares (40 CFR 60.102a(g)(1)); (4) the flow limit for flares 
(40 CFR 60.102a(g)(3)); (5) the total reduced sulfur and flow 
monitoring requirements for flares (40 CFR 60.107a(d) and (e)); and (6) 
the nitrogen oxide (NOX) limit for process heaters (40 CFR 
60.102a(g)(2)). Subsequently, on

[[Page 78547]]

August 21, 2008, Industry Petitioners identified additional issues for 
reconsideration (Docket Item No. EPA-HQ-OAR-2007-0011-246). Industry 
Petitioners identified a number of issues with the standards for fluid 
catalytic cracking units (FCCU), fluid coking units (FCU), fuel gas 
combustion devices, sulfur recovery plants, and delayed coking units. 
The issues ranged from disagreeing with the best demonstrated 
technology analyses for FCCU/FCU and delayed coking units to requests 
for clarification of requirements regarding averaging times for various 
limits, to identifying inconsistencies in compliance methods, to simple 
typographical errors. A total of 82 items were identified in this 
submittal.
    On August 25, 2008, HOVENSA, LLC (HOVENSA) filed a petition for 
reconsideration of the following provisions of 40 CFR part 60, subpart 
Ja: (1) The NOX limit for process heaters (40 CFR 
60.102a(g)(2)); (2) the flaring requirements, including the definitions 
of ``flare'' and ``modification'' (40 CFR 60.100a(c), 60.101a, 
60.102a(g) through (i), 60.103a(a) and (b)); and (3) the 
depressurization work practice standard for delayed coking units (40 
CFR 60.103a(c)) (Docket Item No. EPA-HQ-OAR-2007-0011-247). The 
petition also requested that EPA stay the effectiveness of these 
provisions during the reconsideration process.
    EPA received a third petition for reconsideration on August 25, 
2008, from the Environmental Integrity Project, Sierra Club, and 
Natural Resources Defense Council (Environmental Petitioners) 
requesting that EPA reconsider several aspects of 40 CFR part 60, 
subpart Ja (Docket Item No. EPA-HQ-OAR-2007-0011-243). The petition 
identified the following issues for reconsideration: (1) EPA's decision 
not to promulgate standards for carbon dioxide and methane emissions 
from refineries; (2) the flaring requirements (40 CFR 60.100a(c), 
60.101a, 60.102a(g) through (i), 60.103a(a) and (b)); (3) the 
NOX limit for FCCU (40 CFR 60.102a(b)(2)); and (4) the 
particulate matter limit for FCCU (40 CFR 60.102a(b)(1)). Unlike the 
other Petitioners, Environmental Petitioners did not seek a stay of 
these provisions during reconsideration.
    On September 26, 2008, EPA issued a Federal Register notice (73 FR 
55751) granting reconsideration of the following issues: (1) The newly 
promulgated definition of ``modification'' for flares; (2) the 
definition of ``flare;'' (3) the fuel gas combustion device sulfur 
limits as they apply to flares; (4) the flow limit for flares; (5) the 
total reduced sulfur and flow monitoring requirements for flares; and 
(6) the NOX limit for process heaters. EPA also granted 
Industry Petitioners' and HOVENSA's request for a 90-day stay for those 
same provisions under reconsideration.
    In the Final Rules section of today's Federal Register, we have 
published a direct final rule extending the stay until a final decision 
on the reconsideration has been reached. In the Proposed Rules section 
of today's Federal Register, we have also published a parallel proposal 
extending the stay until a final decision on the reconsideration has 
been reached. Based on today's direct final and parallel proposal 
extending the stay, we are taking this final action, effective for 60 
days, beginning on December 26, 2008, to prevent facilities from being 
out of compliance with provisions, at least some of which, we 
anticipate modifying upon reconsideration.
    EPA is providing the public with an opportunity to comment on the 
stay extension in both the direct final rule and parallel proposal. 
However, we are not taking comment on this final action. We believe it 
is appropriate to continue the stay that is currently in place until 
the direct final action becomes effective to avoid a lapse in the stay 
and create potential compliance problems with provisions that we 
believe may need to be revised.

II. What action is EPA taking?

    We are making an interim final determination to extend the stay for 
60 days based on our concurrent direct final action and parallel 
proposal. EPA has determined that a stay is necessary for the 
provisions under reconsideration. The 90-day stay that began on 
September 26, 2008, expires on December 25, 2008. At that time, 
facilities will be required to comply with the final rules as published 
(73 FR 35838) unless an extension is set in place. EPA is invoking the 
good cause exception under the Administrative Procedure Act (APA) in 
not providing an opportunity for comment before this action takes 
effect (5 U.S.C. 553(b)(3)).
    EPA believes that notice-and-comment rulemaking before the 
effective date of this action is impracticable and contrary to the 
public interest. EPA has stated in the reconsideration and stay notice 
(73 FR 55751) the reasons for granting the 90-day stay. As these 
reasons remain valid, we believe it is still appropriate for the stay 
to be in effect until we have reached a final decision on the 
reconsideration. Because the initial stay expires on December 25, 2008 
and the direct final action would not be effective until February 24, 
2009, it is not in the public's best interest to require compliance 
with the rules as published during the gap between the two dates. 
Therefore, EPA believes that it is necessary to use the interim final 
rulemaking process to extend the initial stay while the public has an 
opportunity to comment on the direct final action.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, 
therefore, not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This action results in no changes to the information collection 
requirements of the NSPS and will have no impact on the information 
collection estimate of project cost and hour burden previously 
submitted to OMB. However, the information collection requirements 
contained in the existing regulation (40 CFR part 60, subpart Ja) under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., 
have been sent to OMB for approval under EPA ICR number 2263.02. The 
OMB control numbers for EPA's regulations in 40 CFR are listed in 40 
CFR part 9.

C. Regulatory Flexibility Act

    Today's interim final rule is not subject to the Regulatory 
Flexibility Act (RFA), which generally requires an agency to prepare a 
regulatory flexibility analysis for any rule that will have a 
significant economic impact on a substantial number of small entities. 
The RFA applies only to rules subject to notice and comment rulemaking 
requirements under the APA or any other statute. This rule is not 
subject to notice and comment requirements under the APA or any other 
statute because, although the rule is subject to the APA, the Agency 
has invoked the ``good cause'' exemption under 5 U.S.C. 553(b), 
therefore, it is not subject to the notice and comment requirement.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for state, local, or tribal governments or the private 
sector. This action imposes no enforceable duty on any state, local, or 
tribal governments or

[[Page 78548]]

the private sector. Therefore, this action is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. This action only 
extends the stay of certain provisions and does not impose any 
additional enforceable duty.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This action does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. This action will not impose direct 
compliance costs on state or local governments, and will not preempt 
state law. Thus, Executive Order 13132 does not apply to this action.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the 
Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because the NSPS for 
petroleum refineries are based on technology performance.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA) (Pub. L. No. 104-113; 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. VCS are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by VCS bodies. NTTAA 
directs EPA to provide Congress, through OMB, explanations when EPA 
decides not to use available and applicable VCS.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any VCS.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801, et seq., as added by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. Section 808 allows the issuing agency to 
make a rule effective sooner than otherwise provided by the CRA if the 
agency makes a good cause finding that notice and public procedure is 
impracticable, unnecessary, or contrary to the public interest. This 
determination must be supported by a brief statement. 5 U.S.C. 808(2). 
As stated previously, EPA has made such a good cause finding, including 
the reasons therefore, and established an effective date of December 
26, 2008. EPA will submit a report containing this rule and other 
required information to the United States Senate, the United States 
House of Representatives, and the Comptroller General of the United 
States prior to publication of the rule in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

    Dated: December 12, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons cited in the preamble, title 40, chapter I, part 60 of 
the Code of Federal Regulations is amended as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.


Sec.  60.100a  [AMENDED]

0
2. In Sec.  60.100a, paragraph (c) is stayed from December 26, 2008, 
until February 24, 2009.


Sec.  60.101a  [AMENDED]

0
3. The definition of ``flare'' in Sec.  60.101a is stayed from December 
26, 2008, until February 24, 2009.


Sec.  60.102a  [AMENDED]

0
4. In Sec.  60.102a, paragraph (g) is stayed from December 26, 2008, 
until February 24, 2009.

[[Page 78549]]

Sec.  60.107a  [AMENDED]

0
5. In Sec.  60.107a, paragraphs (d) and (e) are stayed from December 
26, 2008, until February 24, 2009.

[FR Doc. E8-29976 Filed 12-19-08; 8:45 am]
BILLING CODE 6560-50-P