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



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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  

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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 http://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 
http://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: [email protected].

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

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                  Category                     NAICS Code \1\            Examples of regulated  entities
----------------------------------------------------------------------------------------------------------------
Industry....................................             32411  Petroleum refiners.
Federal government..........................  ................  Not affected.
State/local/tribal government...............  ................  Not affected.
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\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 http://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

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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

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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.

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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