
[Federal Register: June 2, 2008 (Volume 73, Number 106)]
[Rules and Regulations]               
[Page 31376-31380]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02jn08-11]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2006-0699; FRL-8569-1]
RIN 2060-AO90

 
Standards of Performance for Equipment Leaks of VOC in the 
Synthetic Organic Chemicals Manufacturing Industry; Standards of 
Performance for Equipment Leaks of VOC in Petroleum Refineries

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 
equipment leaks of VOC in the Synthetic Organic Chemicals Manufacturing 
Industry (SOCMI) and Petroleum Refineries.

DATES: This interim final determination is effective on June 2, 2008 
and will expire on August 1, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OAR-2006-0699. All documents in the docket are listed in the 
Federal Docket Management System index at 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 
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: Ms. Karen Rackley, Coatings and 
Chemicals Group, Sector Policies and Programs Division, Office of Air 
Quality Planning and Standards (E143-01), Environmental Protection 
Agency, Research Triangle Park, North Carolina 27711; telephone number: 
(919) 541-0634; fax number: (919) 541-0246; e-mail address: 
rackley.karen@epa.gov.

SUPPLEMENTARY INFORMATION:
    Regulated Entities. Categories and entities potentially regulated 
by this action are synthetic organic chemicals manufacturers and 
petroleum refineries. The New Source Performance Standards (NSPS) for 
equipment leaks of VOC in SOCMI and petroleum refineries affect the 
following categories of sources:

------------------------------------------------------------------------
                                                        Examples of
           Category               NAICS code \1\   potentially regulated
                                                          entities
------------------------------------------------------------------------
Industry......................  324110...........  Petroleum refiners.

[[Page 31377]]


                                Primarily 325110,  Synthetic organic
                                 325192, 325193,    chemical
                                 and 325199.        manufacturing
                                                    industry (SOCMI)
                                                    units, e.g.,
                                                    producers of
                                                    benzene, toluene, or
                                                    any other chemical
                                                    listed in 40 CFR
                                                    60.489.
------------------------------------------------------------------------
\1\ North American Industrial Classification Code.

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by the 
final amendments and new standards for equipment leaks of VOC in SOCMI 
and petroleum refineries. To determine whether your facility is 
regulated by this action, you should examine the applicability criteria 
in 40 CFR 60.480, 60.590, 60.480a, and 60.590a. If you have any 
questions regarding the applicability of the 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

    On November 16, 2007, EPA promulgated amendments and established 
new standards of performance for equipment leaks of VOC in the SOCMI 
and Petroleum Refineries (72 FR 64860). Following the promulgation of 
the final amendments and new standards for these industries, EPA 
received a petition for reconsideration on January 15, 2008 from the 
American Chemistry Council (ACC), the American Petroleum Institute 
(API), and the National Petrochemical and Refiners Association (NPRA) 
(``Petitioners''). The petitioners, pursuant to CAA section 
307(d)(7)(B), requested EPA reconsider four provisions in the rules: 
(1) The clarification of the definition of process unit in subparts VV, 
VVa, GGG, and GGGa; (2) the assigning of shared storage tanks to 
specific process units in subparts VV, VVa, GGG, and GGGa; (3) the 
connecter monitoring requirements in subpart VVa; and (4) the 
definition of capital expenditure in subpart VVa. The petitioners also 
requested that EPA stay the effectiveness of these provisions of the 
rule pending resolution of their petition for reconsideration. The 
petition can be found in the public docket (EPA-HQ-OAR-2006-0699).
    On March 4, 2008, EPA sent a letter to the petitioners, through 
their counsel, informing them that EPA was granting their request for 
reconsideration on three of the issues listed above. We indicated in 
the letter that no action was being taken on the issue of the 
clarification of the definition of process unit at that time. Finally, 
the letter indicated that EPA was granting a 90-day stay of the 
provisions of the rules under reconsideration (see CAA section 
307(d)(7)(B)), as well as the clarification of the definition of 
process unit, because of its interaction with the new provision 
regarding the allocation of shared storage vessels. The letter from EPA 
to the petitioners can be found in the public docket (EPA-HQ-OAR-2006-
0699).
    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 publication, 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 March 
4, 2008 expires on June 1, 2008. At that time, facilities will be 
required to comply with the final rules as published (72 FR 64860) 
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 our letter to the Petitioners 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 June 1, 2008 and the direct final action would 
not be effective until 60 days after publication, 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.

[[Page 31378]]

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 made and approved 
by OMB. However, OMB has previously approved the information collection 
requirements contained in the existing regulations at 40 CFR part 60, 
subparts VV and GGG under the provisions of the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq., and has assigned OMB control number 2060-
0443, to the ICR for subpart VV and OMB control number 2060-0067, to 
the ICR for subpart GGG. 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 Administrative Procedure Act (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

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995, Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures by state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
1 year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective, or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enabling officials of affected 
small governments to have meaningful and timely input in the 
development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    EPA has determined that this action contains no Federal mandates 
(under the regulatory provisions of title II of the UMRA) 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. Thus, this action is not subject to the requirements of 
sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. This rule 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

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This action does not have 
tribal implications, as specified in Executive Order 13175. 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 equipment 
leak NSPS for SOCMI and 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.

[[Page 31379]]

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA 
to use voluntary consensus standards in its regulatory activities 
unless to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, 
business practices) that are developed or adopted by one or more 
voluntary consensus bodies. The NTTAA directs EPA to provide Congress, 
through OMB, with explanations when EPA does not use available and 
applicable voluntary consensus standards.
    EPA is not proposing to make any changes to the regulatory 
requirements in the final equipment leak NSPS in this action, including 
requirements that involve technical standards. As a result, the NTTAA 
discussion set forth in the November 16, 2007, final rule remains 
valid. The requirements of NTTAA, therefore, do not apply to this 
action.

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 June 2, 2008. 
EPA will submit a report containing this rule and other required 
information to the U.S. Senate, the U.S. 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, Incorporation by reference, Intergovernmental 
relations, Reporting and recordkeeping requirements.

    Dated: May 15, 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.

Subpart VV--[Amended]

0
2. Section 60.480 is amended by adding paragraph (f) to read as 
follows:


Sec.  60.480  Applicability and designation of affected facility.

* * * * *
    (f) Stay of standards. Owners or operators are not required to 
comply with the definition of ``process unit'' in Sec.  60.481 and the 
requirements in Sec.  60.482-1(g) of this subpart until August 1, 2008. 
While the definition of ``process unit'' is stayed, owners or operators 
should use the following definition:
    Process unit means components assembled to produce, as intermediate 
or final products, one or more of the chemicals listed in Sec.  60.489 
of this part. A process unit can operate independently if supplied with 
sufficient feed or raw materials and sufficient storage facilities for 
the product.


Sec.  60.481  [Amended]

0
3. In Sec.  60.481, the definition for ``process unit'' is stayed from 
June 2, 2008 until August 1, 2008.


Sec.  60.482-1  [Amended]

0
4. In Sec.  60.482-1, paragraph (g) is stayed from June 2, 2008 until 
August 1, 2008.

Subpart VVa--[Amended]

0
5. Section 60.480a is amended by adding paragraph (f) to read as 
follows:


Sec.  60.480a  Applicability and designation of affected facility.

* * * * *
    (f) Stay of standards. (1) Owners or operators that start a new, 
reconstructed, or modified affected source prior to November 16, 2007 
are not required to comply with the requirements in this paragraph 
until August 1, 2008.
    (i) The definition of ``capital expenditure'' in Sec.  60.481a of 
this subpart. While the definition of ``capital expenditure'' is 
stayed, owners or operators should use the definition found in Sec.  
60.481 of subpart VV of this part.
    (2) Owners or operators are not required to comply with the 
requirements in this paragraph until August 1, 2008.
    (i) The definition of ``process unit'' in Sec.  60.481a of this 
subpart. While the definition of ``process unit'' is stayed, owners or 
operators should use the following definition:
    Process unit means components assembled to produce, as intermediate 
or final products, one or more of the chemicals listed in Sec.  60.489 
of this part. A process unit can operate independently if supplied with 
sufficient feed or raw materials and sufficient storage facilities for 
the product.
    (ii) The method of allocation of shared storage vessels in Sec.  
60.482-1a(g) of this subpart.
    (iii) The standards for connectors in gas/vapor service and in 
light liquid service in Sec.  60.482-11a of this subpart.


Sec.  60.481a  [Amended]

0
6. In Sec.  60.481a, the definitions of ``capital expenditure'' and 
``process unit'' are stayed from June 2, 2008 until August 1, 2008.


Sec.  60.482-1a  [Amended]

0
7. In Sec.  60.482-1a, paragraph (g) is stayed from June 2, 2008 until 
August 1, 2008.

[[Page 31380]]

Sec.  60.482-11a  [Amended]

0
8. Sec.  60.482-11a is stayed from June 2, 2008 until August 1, 2008.

Subpart GGG--[Amended]

0
9. Section 60.590 is amended by adding paragraph (e) to read as 
follows:


Sec.  60.590  Applicability and designation of affected facility.

* * * * *
    (e) Stay of standards. Owners or operators are not required to 
comply with the definition of ``process unit'' in Sec.  60.590 of this 
subpart until August 1, 2008. While the definition of ``process unit'' 
is stayed, owners or operators should use the following definition:
    Process unit means components assembled to produce intermediate or 
final products from petroleum, unfinished petroleum derivatives, or 
other intermediates; a process unit can operate independently if 
supplied with sufficient feed or raw materials and sufficient storage 
facilities for the product.


Sec.  60.591  [Amended]

0
10. In Sec.  60.591, the definition of ``process unit'' is stayed from 
June 2, 2008 until August 1, 2008.

Subpart GGGa--[Amended]

0
11. Section 60.590a is amended by adding paragraph (e) to read as 
follows:


Sec.  60.590a  Applicability and designation of affected facility.

* * * * *
    (e) Stay of standards. Owners or operators are not required to 
comply with the definition of ``process unit'' in Sec.  60.590 of this 
subpart until August 1, 2008. While the definition of ``process unit'' 
is stayed, owners or operators should use the following definition:
    Process unit means components assembled to produce intermediate or 
final products from petroleum, unfinished petroleum derivatives, or 
other intermediates; a process unit can operate independently if 
supplied with sufficient feed or raw materials and sufficient storage 
facilities for the product.


Sec.  60.591a  [Amended]

0
12. In Sec.  60.591a, the definition of ``process unit'' is stayed from 
June 2, 2008 until August 1, 2008.

[FR Doc. E8-11383 Filed 5-30-08; 8:45 am]

BILLING CODE 6560-50-P
