
[Federal Register: December 22, 2008 (Volume 73, Number 246)]
[Rules and Regulations]
[Page 78549-78552]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22de08-22]

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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: a-and-r-Docket@epa.gov.
     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: lucas.bob@epa.gov.

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
----------------------------------------------------------------------------------------------------------------
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
