[Federal Register Volume 76, Number 137 (Monday, July 18, 2011)]
[Rules and Regulations]
[Pages 42052-42055]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-17901]
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ENVIRONMENTAL PROTECTION AGENCY
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.
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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
withdrawal.
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.
FOR FURTHER INFORMATION CONTACT: Ms. Brenda Shine, Office of Air
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: shine.brenda@epa.gov.
SUPPLEMENTARY INFORMATION:
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\
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\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.)
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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.
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\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.)
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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
section.
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
[[Page 42054]]
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,
2007.
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);
and
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,
Administrator.
[FR Doc. 2011-17901 Filed 7-15-11; 8:45 am]
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