FROM: Gina McCarthy

Assistant Admiñ

THRU: Lone Schmidt

Associate GenefaVCounsel Air and Radiation Law Office

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C. 20460
AUG 062012

FRO

OFFICE OF AIR AND RADIATION

SUBJECT: Inadvertent Errors in the Final Amendments to the New Source

Performance Standards for Petroleum Refineries (NSPS Subpart Ja) (Tier 3; SAN 5036; Rll' 20O..AN)--Correction of Inadvertent Errors

Michael Goo Associate Administrator Office of Policy

Lisa P. Jackson Administrator

Several inadvertent errors were made in the process of preparing the final rulemaking signature package for the Clean Air Act (CAA) section 111 new source performance standard (NSPS) for petroleum refineries that you signed on June 1, 2012. Printing of the final rule is currently on hold pending approval of our Incorporation by Reference (IBR) amendments by the Office of the Federal Register (OFR). We recommend making the changes discussed below while awaiting approval of the IBR request.

First, an error was made when we incorrectly referenced the date of the stay of certain provisions in the preamble summary and background information sections. We incorrectly referenced the first date of a short term stay (September 26, 2008) rather than the date on which an indefinite stay was issued (December 22, 2008).

Second, an error was made in section 60.100(b) by referring to "a flare as defined in 60.101a" rather than simply referring to "a flare." As "flares" are not specifically defined in subpart J, and the different compliance date in subpart Ja applies to flares as defined in subpart Ja, the June 24, 2008, rule used the phrase "flares as defined in §60.101a." As noted in the preamble to the December 22, 2008, proposal: "The intent of the provision was not to expand the definition of fuel gas combustion device under subpart J; rather, it was included only to clarify that flares were not subject to the new flare requirements in subpart Ja until after the date of publication of the final rule" (73 FR 78529). While we did not propose to change the regulatory text in the December 22, 2008, proposal, we again received comments

Internet Address (URL) • http://www.epa.gov Recycled/Recyclable • Printed with Vegetable Oil Based Inks on Recycled Paper (Minimum 30% Postconsumer)that this reference to the definition of flare in subpart Ja could expand the applicability of subpart J retroactively. To avoid confusion and unintended consequences, we intended to correct the rule language in section 60.100(b) to remove the reference to section 60.101a, but, through a clerical error, this correction was not included in the package signed on June 1, 2012.

Third, an error was made in the compliance dates for the flare requirements. The subpart Ja rule recognizes the need to sequence compliance with the flare requirements to avoid safety hazards. As such, the rule provides a 3-year compliance period for refineries that must install new treatment equipment and monitors so that their modified flares will comply with the flare requirements. The 3-year compliance period should begin on the effective date of the rule, which is 60 days after publication in the Federal Register. However, the rule inadvertently provided 3 years from the date of publication in the Federal Register rather than 3 years and 60 days from the date of publication in the Federal Register.

A related error concerns the compliance date for meeting the short-term hydrogen sulfide (H2S) concentration limit on fuel gas going to a flare. The final rule incorrectly requires immediate compliance with this short-term H 2 S concentration limit for all flares that become subject to subpart Ja. However, the rule should only require immediate compliance for all new flares and for modified flares that were previously subject to subpart J. The rule should provide a 3-year compliance period for modified flares that were not previously subject to subpart J, or were complying with subpart J requirements as specified in a federal consent decree or that had alternative monitoring provisions in place. When we drafted the final rule, we assumed that all affected flares under NSPS subpart Ja would already be in compliance with this short-term H 2 S concentration limit or could immediately comply with this limit because an almost identical limit is contained in NSPS subpart J, and most flares are already subject to this standard. However, not all flares have, in fact, taken actions to comply with this limit under subpart J. Therefore, it is necessary to correct the rule language. Further, requiring immediate compliance with the short-term H 2 S concentration limit for flares that become subject to subpart Ja through modification, but that were not previously subject to this short-term H 2 S concentration limit in subpart J is inconsistent with other statements in the preamble where we state that time will be needed for planning, designing, purchasing and installing treatment equipment needed to meet other flare requirements in the rule.

Fourth, an error was made in the definition of "delayed coking unit." The final rule expanded the definition of a delayed coking unit compared to the definition in the proposed rule, which could cause some delayed coking units that would not have been affected sources under the proposed definition to be affected sources under the final rule. Since, under CAA section 111, a unit is defined as a "new source" from the date of proposal only if there is a standard "which will be applicable to such source," and is otherwise defined as a new source based upon the final rule date (see CAA section 111 (a)(2)), using the proposal date as the new source date for such units was in error. Accordingly, we are addressing this inadvertent error by resetting the applicability date to the effective date of these final amendments for those delayed coking units that were not included within the proposed 2008 definition of "delayed coking unit."

Finally, we are including minor technical corrections, including incorrect references to paragraphs in two places in the rule, the misspelling of a word and a technical error in the definition of "air preheat" in the rule, which inadvertently refers to the recovery of "latent heat of exhaust gas," but should have referred to the recovery of "sensible heat of exhaust gas." We also note that, as we worked through thecc: Linda Chappell/OA, 1 101A

review of our IBR request with the OFR, we found that several minor changes were needed in section 60.17 to conform to OFR guidelines. We typically address these types of edits with the OFR following signature; however, we are including the edits within this memorandum for completeness.

The attached redlined pages of the preamble and rule identify all the errors described above and show the corrected text. The preamble changes appear on pages 1, 2, 7, 8, 9,25, 42, 5 1-52, 142-145, 148-150 and 158-159; the rule changes are shown on pages 203-211, 213-217, 240, 245-246, 262, 265-266, 280, 288, 290 and 300.

We recommend that you correct these inadvertent errors and approve these changes by signing and dating below.