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EPA Issues Final Refinery NSPS

Beveridge & Diamond, P.C., June 30, 2008

EPA issued final amendments to its New Source Performance Standards (NSPS) for Petroleum Refineries, at 40 C.F.R. Part 60, Subpart J/Ja.  73 Fed. Reg. 35838 (June 24, 2008).  The amendments were proposed last year as the outcome of the periodic review of NSPS standards required under CAA Section 111(b)(1).  72 Fed. Reg. 27278 (May 14, 2007).  The rules provide technical corrections to the existing Subpart J standards and create a set of new emissions for fluid catalytic cracking units (FCCU), fluid coking units (FCU), sulfur recovery plants (SRP), and fuel gas combustion devices for facilities that were newly constructed, modified or reconstructed after May 14, 2007.  The new rules became effective on June 24, 2008.

The final standards were met with controversy even before publication and will likely be challenged by industry and environmental groups alike.  One of the key areas of controversy is the amended flaring provision under Subpart Ja, which redefines a “modification” to a flare to include physically connecting any new piping from a refinery process unit or fuel gas system to the flare, or physically altering the flare to increase its flow capacity.  73 Fed. Reg. at 35868.  This new definition, which was not set forth in the proposal, would greatly expand when the new flaring limits will be triggered: for the first time in any NSPS, a project can be considered a “modification” even without an increase in the emissions rate. 

Although EPA has delayed the effectiveness of this definition, industry sources have warned publicly they will likely challenge at least this part of the rule on the grounds that it was not a “logical outgrowth” of the proposal. See InsideEPA.com (June 20, 2008).  Some refiners have also expressed concern that if the amended modification definition for flares is left intact, the timeframes for instituting flare control technologies under their Consent Decrees may be expedited substantially, even with the delayed implementation date of the rule.  Industry may also challenge other aspects of the flaring requirements, including the need for flare gas flow and sulfur content meters as well as the stringency of some of the NOx limits.  Some environmental sources have already expressed disappointment that the standards fail to include green house gas emissions limits and may challenge on those grounds.  Id.

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