[Federal Register Volume 73, Number 188 (Friday, September 26, 2008)]
[Rules and Regulations]
[Pages 55751-55752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-22692]


=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2007-0011; FRL-8721-5]
RIN 2060-AN72


Standards of Performance for Petroleum Refineries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; reconsideration and stay of effective date.

-----------------------------------------------------------------------

SUMMARY: This action grants Petitioners' request for reconsideration 
and Petitioners' request for a stay until December 25, 2008 for certain 
specific provisions in the newly promulgated standards of performance 
for new, modified, or reconstructed process units at petroleum 
refineries. The effective date for the final rule promulgating 
amendments to the current standards of performance for petroleum 
refineries has not changed and remains June 24, 2008.

DATES: Effective September 26, 2008, in Title 40 CFR part 60, subpart 
Ja, Sec.  60.100a(c), the definition of ``flare'' in Sec.  60.101a, and 
Sec. Sec.  60.102a(g), 60.107a(d), and 60.107a(e) are stayed until 
December 25, 2008.

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: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Environmental Protection Agency published a final rule on June 
24, 2008 that contained the following: (1) Final amendments to the 
existing refineries new source performance standards (NSPS) in 40 CFR 
part 60, subpart J; and (2) a new 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 NSPS subpart Ja 
was stayed for 60 days until September 26, 2008. The amendments in NSPS 
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 (CAA) section 307(d)(7)(B) of certain provisions of 40 CFR part 
60, subpart Ja. On July 25, 2008, the Industry Petitioners sought 
reconsideration of the provisions of NSPS subpart Ja for which they had 
previously requested a stay. Specifically, Industry Petitioners 
requested that EPA reconsider the following provisions in NSPS subpart 
Ja: (1) The definition of ``modification'' (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 flare systems (40 CFR 60.102a(g)(3)); (5) the 
total reduced sulfur and flow monitoring requirements for flares (40 
CFR 60.107a(d), (e)); and (6) the nitrogen oxide (NOX) limit 
for process heaters (40 CFR 60.102a(g)(2)). Subsequently, on August 21, 
2008, the Industry Petitioners identified additional issues for 
reconsideration.
    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)-(i), 60.103a(a)-(b)); and (3) the depressurization work 
practice standard for delayed coking units (40 CFR 60.103a(c)). 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 EPA reconsider several aspects of 40 CFR part 60, subpart 
Ja. The petition identifies the following issues for reconsideration: 
(1) EPA's decision not to promulgate NSPS for carbon dioxide and 
methane emissions from refineries; (2) the flaring requirements (40 CFR 
60.100a(c), 60.101a, 60.102a(g)-(i), 60.103a(a)-(b)); (3) the 
NOX limit for fluid catalytic cracking units (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.
    EPA has begun reviewing all of these petitions and is addressing in 
this notice only those issues for which Industry Petitioners and 
HOVENSA sought reconsideration and a stay of those specific provisions 
during reconsideration. EPA is taking no action on all of the other 
issues raised in the petitions but will consider all of the outstanding 
issues in a future notice.
    In this action, EPA is granting reconsideration with respect to the 
following provisions: (1) The definition of ``modification;'' (2) the 
definition of ``flare;'' (3) the fuel gas combustion device sulfur 
limits as they apply to flares; (4) the flow limit for flare systems; 
(5) the total reduced sulfur and flow monitoring requirements for 
flares; and (6) the NOX limit for process heaters. We are 
granting reconsideration on these specific issues because the grounds 
for Petitioners' objections arose after the public comment period (but 
within the time specified for judicial review) and the objections are 
of central relevance to the outcome of the final rule pursuant to CAA 
section 307(d)(7)(B).
    EPA is also granting Industry Petitioners and HOVENSA's request for 
a 90-day stay of the following provisions that are under 
reconsideration (see CAA section 307(d)(7)(B)): (1) The definition of 
``modification;'' (2) the definition of ``flare;'' (3) the fuel gas 
combustion device sulfur limits; (4) the flow limit for flare systems; 
(5) the total reduced sulfur and flow monitoring requirements for 
flares; and (6) the NOX limit for process heaters. We are 
staying

[[Page 55752]]

the first five provisions listed above because the final approach to 
regulating flare emissions was first introduced in the final rule and 
represented significant changes from the proposal. Facilities had no 
chance to comment on these new requirements in the final rule. 
Accordingly, we have reason to believe that certain facilities may be 
out of compliance with requirements for which they had no notice or 
time to come into compliance. Moreover, a stay is appropriate because 
in reconsidering these requirements both the affected universe and the 
substantive requirements could change. It should be noted that as a 
consequence of staying the fuel gas combustion device sulfur limits as 
they apply to flares we are staying the requirement for all fuel gas 
combustion devices. The effect of this action is to delay compliance 
obligations for 90 days of the sulfur limits under NSPS subpart Ja for 
fuel gas combustion devices other than flares such as process heaters 
and boilers. Although this is not a preferred outcome, it is 
unavoidable due to the structure of the rule and is an unintended 
consequence of this action.
    We are staying the sixth provision listed above because information 
provided by Industry Petitioners and HOVENSA has led the Agency to 
question whether the emission limits in the final rule are achievable 
and represent best demonstrated technology. The information provided 
has convinced us that certain facilities may suffer undue hardship in 
attempting compliance with this limit. Granting a stay of this 
requirement while we reconsider this limit is, therefore, necessary to 
prevent any possible harm that may occur.
    EPA is denying HOVENSA's request for a 90-day stay of the 
depressurization work practice standard for delayed coking units. 
HOVENSA provided no individual demonstration regarding its need for EPA 
to stay this work practice standard. HOVENSA provided no specific 
information or explanation of why staying this provision of a 
nationally applicable rule is the appropriate recourse for protecting 
its individual facility. HOVENSA's generalized assertions of incurring 
compliance costs absent a stay are not enough reason for granting this 
request for a stay. EPA, therefore, denies HOVENSA's request for a stay 
of this provision.
    All other requirements promulgated in 40 CFR part 60, subpart Ja 
become effective as of September 26, 2008.
    EPA will address the substantive aspects of this reconsideration in 
a separate notice in the Federal Register.

II. Statutory and Executive Order Reviews

A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and, therefore, is 
not subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). In 
addition, this action does not impose any enforceable duty or contain 
any unfunded mandate as described in the Unfunded Mandates Reform Act 
of 1995 (Pub. L.104-4), or require prior consultation with State 
officials as specified by Executive Order 12875 (58 FR 58093, October 
28, 1993), or involve special consideration of environmental justice 
related issues as required by Executive Order 12898 (59 FR 7629, 
February 16, 1994). Because this action is not subject to notice-and-
comment requirements under the Administrative Procedure Act or any 
other statute, it is not subject to the regulatory flexibility 
provisions of the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). 
This action also does not have tribal implications because it will not 
have a substantial direct effect on one or more Indian tribes, 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 by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does 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 (64 
FR 43255, August 10, 1999). This action also is not subject to 
Executive Order 13045 ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997). The 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action 
does not impose an information collection burden under the provisions 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.). EPA's 
compliance with these statutes and Executive Orders for the underlying 
rule is discussed in the June 24, 2008 Federal Register document.

B. Submission to Congress and the Comptroller General

    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. EPA will submit a report containing this 
notice 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. The stay of these particular provisions in NSPS subpart Ja 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, Monitoring, reporting and recordkeeping.

    Dated: September 22, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons stated in the preamble, title 40, chapter I 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]

    2. In Sec.  60.100a, paragraph (c) is stayed from September, 26, 
2008, until December 25, 2008.


Sec.  60.101a  [Amended]

0
3. The definition of ``flare'' in Sec.  60.101a is stayed from 
September, 26, 2008, until December 25, 2008.


Sec.  60.102a  [Amended]

0
4. In Sec.  60.102a, paragraph (g) is stayed from September, 26, 2008, 
until December 25, 2008.


Sec.  60.107a  [Amended]

0
5. In Sec.  60.107a, paragraphs (d) and (e) are stayed from September, 
26, 2008, until December 25, 2008.

[FR Doc. E8-22692 Filed 9-25-08; 8:45 am]
BILLING CODE 6560-50-P