[Federal Register: September 26, 2008 (Volume 73, Number 188)]
[Rules and Regulations]
[Page 55751-55752]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26se08-11]
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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.
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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: lucas.bob@epa.gov.
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.
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For the reasons stated in the preamble, title 40, chapter I of the Code
of Federal Regulations is amended as follows:
PART 60--[AMENDED]
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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