[Federal Register Volume 73, Number 246 (Monday, December 22, 2008)]
[Rules and Regulations]
[Pages 78549-78552]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29980]


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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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule; stay.

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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:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     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 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 
http://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 http://www.regulations.gov or e-mail. The http://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 http://www.epa.gov/epahome/dockets.htm.
    Docket: 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, 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 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.
    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: [email protected].

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

[[Page 78550]]

this time. For further information about commenting on this rule, see 
the ADDRESSES section of this document. If EPA receives adverse 
comment, we will publish a timely withdrawal in the Federal Register 
informing the public that this direct final rule will not take effect. 
We would address all public comments in any subsequent final rule based 
on the proposed rule.

II. Does this action apply to me?

    Categories and entities potentially regulated by this direct final 
rule include:

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                  Category                     NAICS \1\ code            Examples of regulated  entities
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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.

III. What should I consider as I prepare my comments for EPA?

    Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Send or deliver information 
identified as CBI only to the following address: Roberto Morales, OAQPS 
Document Control Officer (C404-02), Environmental Protection Agency, 
Office of Air Quality Planning and Standards, Research Triangle Park, 
NC 27711, Attention Docket ID No. EPA-HQ-OAR-2007-0011. Clearly mark 
the part or all of the information that you claim to be CBI. For CBI 
information on a disk or CD ROM that you mail to EPA, mark the outside 
of the disk or CD ROM as CBI and then identify electronically within 
the disk or CD ROM the specific information that is claimed as CBI. In 
addition to one complete version of the comment that includes 
information claimed as CBI, a copy of the comment that does not contain 
the information claimed as CBI must be submitted for inclusion in the 
public docket. Information so marked will not be disclosed except in 
accordance with procedures set forth in 40 CFR part 2.

IV. How do I obtain a copy of this document and other related 
information?

    Docket. The docket number for this action and the final NSPS for 
petroleum refineries (40 CFR part 60, subpart Ja) is Docket ID No. EPA-
HQ-OAR-2007-0011.
    Worldwide Web (WWW). In addition to being available in the docket, 
electronic copies of the final amendments and this action are available 
on the WWW through the Technology Transfer Network Web site (TTN Web). 
Following signature, EPA posted a copy of this notice 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.

V. 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 (CAA) 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 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

[[Page 78551]]

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.

VI. What action is EPA taking?

    This action extends the stay of the provisions under 
reconsideration. As noted above, EPA granted a 90-day stay of these 
provisions under CAA section 307(d)(7)(B) on September 26, 2008. That 
stay expires on December 25, 2008. We are extending the stay until we 
have reached a final decision on all of the issues for which 
reconsideration was granted. While the Agency does not generally grant 
stays pending reconsideration, we believe that the unique compliance 
issues created by our final rule warrant a limited stay pending 
reconsideration. As we explained in granting the initial stay:

    We are staying 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. * * * 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.

    As these reasons remain valid, we have decided to extend the 
limited stay for the remainder of our reconsideration process.

VII. 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 the Office of Management and Budget (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

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedures Act or any other statute 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 organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the petroleum refinery 
NSPS on small entities, small entity is defined as: (1) A small 
business according to Small Business Administration size standards by 
the North American Industry Classification System (NAICS) category of 
the owning entity; (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise that is independently owned and 
operated and is not dominant in its field. For petroleum refiners, a 
small business has no more than 1,500 employees.
    After considering the economic impacts of this action on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
will not impose any requirements on any entities because it does not 
impose any additional regulatory requirements.

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 the private sector. Therefore, this action is not 
subject to the requirements of sections 202 or 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

[[Page 78552]]

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 solely 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 (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), Public Law 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, with explanations when 
EPA does not 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. 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. A Major rule cannot take effect until 60 days after it is 
published in the Federal Register. This action is not a ``major rule'' 
as defined by 5 U.S.C. 804(2). This rule will be effective on February 
24, 2009.

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 February 24, 2009, 
until further notice.


Sec.  60.101a  [AMENDED]

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


Sec.  60.102a  [AMENDED]

0
4. In Sec.  60.102a, paragraph (g) is stayed from February 24, 2009, 
until further notice.


Sec.  60.107a  [AMENDED]

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

[FR Doc. E8-29980 Filed 12-19-08; 8:45 am]
BILLING CODE 6560-50-P