[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Rules and Regulations]
[Pages 42052-42055]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-17901]



40 CFR Parts 9 and 63

[EPA-HQ-OAR-2003-0146; FRL-9439-2]
RIN 2060-AO55

National Emission Standards for Hazardous Air Pollutants From 
Petroleum Refineries

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; partial withdrawal.


SUMMARY: On October 28, 2009, the EPA proposed to withdraw the residual 
risk and technology review portions of the final rule amending the 
National Emission Standards for Hazardous Air Pollutants From Petroleum 
Refineries. EPA is now providing final notice of the partial 

DATES: As of August 17, 2011, EPA withdraws portions of the final rule 
signed by then Administrator Stephen Johnson on January 16, 2009.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OAR-2003-0146. All documents in the docket are 
listed in the http://www.regulations.gov index. Although listed in the 
index, some information is not publicly available, e.g., confidential 
business information 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. Publicly available docket materials are available 
either electronically in www.regulations.gov or in hard copy at the EPA 
Docket Center, Environmental Protection Agency, 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.

Quality Planning and Standards, Sector Policies and Programs Division, 
Refining and Chemicals Group (E143-01), Environmental Protection 
Agency, Research Triangle Park, NC 27711, telephone number: (919) 541-
3608; fax number: (919) 541-0246; e-mail address: [email protected].


I. Background Information

    Section 112 of the Clean Air Act (CAA) establishes a two-stage 
regulatory process to address emissions of hazardous air pollutants 
(HAP) from stationary sources. In the first stage, after the EPA has 
identified categories of

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sources emitting one or more of the HAP listed in section 112(b) of the 
CAA, section 112(d) calls for the Administrator to promulgate national 
emission standards for hazardous air pollutants for those sources. The 
EPA is then required to review these technology-based standards, and to 
revise them ``as necessary (taking into account developments in 
practices, processes, and control technologies)'' no less frequently 
than every 8 years, under CAA section 112(d)(6). The second stage in 
standard-setting focuses on reducing any remaining ``residual'' risk 
according to CAA section 112(f).
    On January 16, 2009, then Administrator Stephen Johnson signed a 
final rule amending the National Emission Standards for Hazardous Air 
Pollutants From Petroleum Refineries, and the signed rule was made 
publicly available on the EPA's website. The signed rule included 
several different actions. First, it promulgated maximum achievable 
control technology (MACT) standards under CAA sections 112(d)(2) and 
(3) for heat exchange systems, which the EPA had not addressed in the 
original Refinery MACT 1 rule (40 CFR part 63, subpart CC). Second, 
pursuant to CAA section 112(f)(2), the rule addressed residual risk for 
all Refinery MACT 1 sources, including heat exchange systems. Third, it 
addressed the technology review pursuant to CAA section 112(d)(6) for 
all sources addressed in the original Refinery MACT 1 rule. Finally, 
the rule updated the table in the Refinery MACT 1 standards (Table 6) 
that cross-references the General Provisions in 40 CFR part 63, subpart 
A, and made a few additional clarifications to dates and cross-
references in the Refinery MACT 1 standards.
    The signed rule was submitted to the Office of the Federal Register 
for publication. Rahm Emanuel, Assistant to the President and Chief of 
Staff, issued a memorandum on January 20, 2009, directing Agencies to 
withdraw from the Office of the Federal Register ``all proposed or 
final regulations that have not been published in the Federal Register 
so that they can be reviewed and approved by a department or agency 
head.'' Although there was an exception for ``regulations subject to 
statutory or judicial deadlines,'' the Agency chose not to apply the 
exception in this case. One portion of the final rule, the CAA section 
112(d)(6) review, was performed pursuant to the terms of a Consent 
Decree, which, as modified, required that by January 16, 2009, the EPA 
``shall sign and promptly forward to the Federal Register for 
publication either final revisions to the standards for petroleum 
refineries in 40 CFR part 63, subpart CC pursuant to 42 U.S.C. 
7412(d)(6) or a final determination that no revisions are necessary.'' 
Then Administrator Stephen Johnson signed the rule on January 16, 2009, 
and promptly forwarded it to the Office of the Federal Register, thus, 
fulfilling this obligation.\1\

    \1\ We note that on January 30, 2009, the litigants notified EPA 
by letter that they believed the Agency had discharged its 
obligation under the Consent Decree, and that ``further review of 
the rule pursuant to the Emanuel memo will not violate the Consent 
Decree.'' (See Docket Item No. EPA-HQ-OAR-2003-0146-0209.)

    Upon further review, the EPA determined that the residual risk and 
technology reviews may not accurately characterize the risk posed by 
this source category. Shortly after the rule was signed, the EPA 
responded to a Request for Correction under the EPA's Information 
Quality Guidelines from the city of Houston.\2\ In that response, we 
recognized that we were currently taking action (and planned to take 
additional action) to gather better emissions information from the 
refining industry. Additionally, we noted that, during the comment 
period on the proposed rule, similar issues were raised concerning the 
representativeness of the emissions data and whether they provided an 
accurate basis for characterizing the risks posed.

    \2\ Letter to U.S. EPA Information Quality Guidelines staff from 
the Honorable Bill White, Mayor of Houston, July 9, 2008, Docket 
Item No. EPA-HQ-OAR-2003-0146-0166.3; EPA's response is Letter to 
Mayor Bill White, Houston, Texas, from Elizabeth Craig, Acting 
Assistant Administrator, Office of Air and Radiation, U.S. EPA, 
April 7, 2009. (See Docket Item No. EPA-HQ-OAR-2003-0146-0210.)

    After consideration of the public comments on the proposal to 
withdraw portions of the final rule, we are providing final notice of 
the Agency's decision to partially withdraw the final rule. As stated 
in the preamble to the proposed withdrawal, the EPA will provide the 
public with an opportunity to comment on any new proposed rule that may 
be issued addressing the residual risk and technology review 
requirements of the CAA for this source category.

II. Summary of Comments and Responses

    The EPA received a total of six comment letters concerning the 
proposed partial withdrawal. Comment letters were received from 
industry trade associations, local environmental organizations, 
environmental groups, and members of the public. Summaries of the 
comments and our complete responses are included in the following 
    Comment: Four commenters supported the EPA's proposed partial 
withdrawal of the Refinery MACT 1 standards signed on January 16, 2009, 
and supported further analysis leading to a revised set of proposed 
standards. Several of these commenters asserted that the withdrawal is 
necessary because the EPA failed to adequately address their comments 
on the standards that were proposed on September 4, 2007 (72 FR 50716), 
and November 10, 2008 (73 FR 66694). Some of the comments submitted on 
those previous proposals and reiterated by the commenters included: (1) 
Objections to the EPA's interpretation of the CAA requirement that the 
standards provide an ``ample margin of safety''; (2) assertions that 
the maximum individual lifetime cancer risk allowed by the CAA is 1 in 
1 million; (3) objections to the length of time allowed for compliance 
with standards for storage vessels with floating roofs; (4) 
identification of multiple deficiencies in the risk assessment 
methodology, including use of actual emissions rather than allowable 
emissions and the estimation of emissions at census block centroids 
rather than property lines; and (5) assertions that the emissions data 
used in the risk assessment were underestimated and unrepresentative. 
The commenters requested that the EPA collect more accurate emissions 
data and re-analyze the residual risk for Refinery MACT 1 using a 
methodology without the identified deficiencies.
    Response: We appreciate the four commenters' support for the 
withdrawal of the residual risk and technology review portions of the 
revisions to the Refinery MACT 1 standards. In this notice, the EPA is 
not making any decisions regarding the scope of residual risk and 
technology review standards under the CAA or on the specific data that 
would form the basis for a particular decision. Substantive comments on 
those issues should be raised in the context of future proposed rules 
addressing the CAA residual risk and technology review for one or more 
specific source categories.
    Comment: Two commenters objected to the proposed withdrawal of the 
residual risk and technology review portions of the Refinery MACT 1 
standards that were signed on January 16, 2009. These commenters noted 
that the EPA spent several years collecting data and considering 
stakeholder comments, finally reaching the conclusion that the Refinery 
MACT 1 standards provide an ample margin of safety based on data that 
the EPA judged to be representative of the source category. The 
commenters asserted that

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the docket for the Refinery MACT 1 rulemaking (Docket ID EPA-HQ-OAR-
2003-0146) does not include any specific support for the EPA's decision 
to reject that previous conclusion. According to the commenters, the 
only support for withdrawing the rule and redoing the analyses is 
provided in public comments submitted for the proposed rules, and the 
EPA considered those comments prior to finalizing the rule signed on 
January 16, 2009. The commenters requested that the EPA present any 
additional data received or analyses performed since January 16, 2009, 
to support withdrawal of the standards, and clearly explain any 
differences in assumptions or methodologies used in the analyses.
    One commenter asserted that residual risk and technology review for 
Refinery MACT 1 has been a time- and resource-consuming process, and 
due to the EPA's other obligations under the CAA, it is not in the best 
interest of the public for the EPA to repeat the entire process without 
good cause. The commenter detailed a number of analyses in the docket 
showing that the EPA believed its emissions estimates and risk 
assessment methodologies were appropriate for the rulemaking. The 
commenter also noted that, if the EPA always postponed regulatory 
action because data may become available in the future, no regulatory 
actions would ever be completed. According to the commenter, refiners 
continue to make improvements in emissions reductions, and the heat 
exchange system standards will reduce emissions from cooling towers, so 
further data collection would only serve to support the conclusion that 
the current standards provide an ample margin of safety.
    Two commenters addressed the EPA's responsibilities under the Data 
Quality Act (DQA) related to the Request for Correction filed by Mayor 
White of Houston (RFC 02003). The commenters stated that the EPA 
fulfilled its DQA obligations through its response to Mayor White on 
April 7, 2009 (Docket Item No. EPA-HQ-OAR-2003-0146-0210), which 
describes the steps that the EPA plans to take to improve annual 
emissions estimates. Since the EPA has addressed the DQA concerns 
raised by Mayor White, the commenters asserted that it is not necessary 
for the Agency to take action on the proposed withdrawal of the 
Refinery MACT 1 standards to further address those concerns.
    Response: As the commenters noted, we did reach the conclusions 
presented in the rule that was signed on January 16, 2009, through 
analysis of the data we had at the time. The commenters are correct 
that, as of the time of the proposed withdrawal, we had not yet 
received any specific, additional data to support changing the 
conclusions reached in the final rule. However, our proposal was not 
based on the receipt of such information. Our decision to withdraw the 
residual risk and technology review portions of the January 16, 2009, 
rule does not mean that we have made a decision to change our 
conclusions regarding what requirements are necessary and appropriate 
for the Refinery MACT 1 standards. Instead, as we noted when we 
proposed the withdrawal, we believe it is necessary to develop a more 
robust analysis based on the improved information we are in the process 
of gathering and developing.
    With respect to duplicating the ``time- and resource-consuming 
process'' associated with the risk and technology review, we note that 
the EPA is now initiating the risk and technology review for the 
Refinery MACT 2 standards (40 CFR part 63, subpart UUU) and plans to 
conduct the Refinery MACT 1 and 2 reviews at the same time. Thus, our 
data collection efforts for purposes of the Refinery MACT 2 risk and 
technology review will also provide a significant portion of the 
information we will need for purposes of our new residual risk and 
technology review of the Refinery MACT 1 standards. Moreover, we 
believe that by more closely aligning our risk and technology review 
for Refinery MACT 1 and 2 sources, we will be able to develop a 
significantly improved analysis of the risks associated with petroleum 
refineries, and, therefore, can better determine the most effective way 
to address any residual risk posed by emissions from petroleum 
refineries. We see significant benefits in combining these efforts, 
both in terms of a more transparent risk evaluation of these co-located 
sources for the neighboring public and in terms of more consolidated 
standards for the regulated community. The EPA has already taken action 
to gather better emissions information from the refining industry, and 
to follow through on the commitments made in the response letter to 
Mayor White of Houston (Docket Item No. EPA-HQ-OAR-2003-0146-0210). For 
these reasons, we have concluded that the benefits of a consolidated 
risk and technology review outweigh the incremental analytical effort 
required to perform a new risk assessment for Refinery MACT 1 sources 
after collecting this more robust data.
    One commenter suggested that the additional data may lead to the 
conclusion that the existing standards provide an ample margin of 
safety. We agree that is a possible outcome; however, any conclusions 
regarding the residual risk review for the Refinery MACT 1 standards 
will need to await our consideration of the more robust data we are now 
gathering. Those data will provide greater certainty for the final 
conclusions, and help to ensure the final standards are technically and 
legally defensible.
    Finally, the EPA agrees that it has responded to the DQA request 
from Mayor White of Houston through the April 7, 2009, letter 
identified by the two commenters (Docket Item No. EPA-HQ-OAR-2003-0146-
0210). In that letter, we outlined several initiatives that were either 
ongoing or planned for the near future in order to improve the quality 
of data we have concerning emissions from petroleum refineries, and we 
are continuing to move forward with all of those initiatives. We plan 
to use this improved information as we move forward to address 
emissions from petroleum refineries, including performing the residual 
risk and technology review for Refinery MACT 1 and 2 sources.
    Comment: Two commenters noted that, if the EPA proceeds with the 
proposed partial withdrawal of Refinery MACT 1 standards, the Agency 
should make clear that the withdrawal completes the action related to 
the September 4, 2007, proposal. In other words, the commenters stated 
that the date for determining compliance with any new standards would 
be the proposal date of those new standards rather than September 4, 
    Response: We agree with the commenters. The appropriate dates for 
determining compliance with future standards would be the dates those 
standards are proposed and finalized.

Statutory and Executive Order Reviews

    Under the CAA, the Administrator is withdrawing a final action that 
was signed by the Administrator and made publicly available on the the 
EPA website, but that never took effect through publication in the 
Federal Register. This action:
     Is a ``significant regulatory action'' subject to review 
by the Office of Management and Budget under Executive Order 12866 (58 
FR 51735, October 4, 1993);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501, et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities

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under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA;
     Does not provide the EPA with the discretionary authority 
to address, as appropriate, disproportionate human health or 
environmental effects, using practicable and legally permissible 
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994); 
     This notice does not have tribal implications as specified 
by Executive Order 13175 (65 FR 67249, November 9, 2000), because it 
will not impose substantial direct costs on tribal governments or 
preempt tribal law.

List of Subjects

40 CFR Part 9

    Environmental protection, Reporting and recordkeeping requirements.

40 CFR Part 63

    Environmental protection, Air pollution control, Hazardous 
substances, Reporting and recordkeeping requirements.

    Dated: July 8, 2011.
Lisa P. Jackson,
[FR Doc. 2011-17901 Filed 7-15-11; 8:45 am]