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9/17/2013- Comments on EPA's Notice of Proposed Consent Decree on the NESHAP for Petroleum Refineries (78 Fed. Reg. 51186 (August 20, 2013), Docket No. EPA-HQ-OGC-2013-0580)

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September 17, 2013


Environmental Protection Agency
Docket Center

RE:     Comments on EPA's Notice of Proposed Consent Decree on the NESHAP for Petroleum Refineries (78 Fed. Reg. 51186 (August 20, 2013), Docket No. EPA-HQ-OGC-2013-0580)


The U.S. Small Business Administration's Office of Advocacy (Advocacy) submits the following comments on the Environmental Protection Agency’s (EPA’s) notice of proposed consent decree under the Clean Air Act published on August 20, 2013.  In this notice, EPA invites public comment on a proposed consent decree that would require rulemaking under sections 112(d)(6) (technology review) and 112(f)(2) (residual risk review) to revise the National Emission Standards for Hazardous Air Pollutants (NESHAP) for petroleum refineries.  Advocacy is concerned that the timeline for rulemaking required by this consent decree does not provide sufficient time for EPA to fully comply with the Regulatory Flexibility Act (RFA), including, if necessary, the requirement to re-initiate a Small Business Advocacy Review (SBAR) Panel in support of the proposed rulemaking, if EPA is unable to certify that the rulemaking would not have a significant economic impact on a substantial number of small entities.

The Office of Advocacy

Congress established the Office of Advocacy under Pub. L. No. 94-305 to advocate the views of small entities before Federal agencies and Congress.  Because Advocacy is an independent body within the U.S. Small Business Administration (SBA), the views expressed by Advocacy do not necessarily reflect the position of the Administration or the SBA.[1]  The RFA,[2] as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA),[3] gives small entities a voice in the federal rulemaking process.  For all rules that are expected to have a “significant economic impact on a substantial number of small entities,” EPA is required by the RFA to conduct a SBAR Panel[4] to assess the impact of the proposed rule on small entities,[5] and to consider less burdensome alternatives.  Moreover, federal agencies must give every appropriate consideration to any comments on a proposed or final rule submitted by Advocacy and must include, in any explanation or discussion accompanying publication in the Federal Register of a final rule, the agency’s response to any written comments submitted by Advocacy on the proposed rule.[6]


EPA developed two NESHAPs under section 112(d)(3) (Maximum Achievable Control Technology (MACT) standards)  for Petroleum Refineries.  EPA issued the first (MACT 1) in 1995.  EPA issued the second (MACT 2), covering additional equipment used in petroleum refineries, in 2002.

The Clean Air Act requires EPA to perform two reviews of NESHAPs after promulgation: a technological review of advancements in HAP emissions control technologies within eight years of the promulgation of a standard and every eight years thereafter (section 112(d)(6)); and a review to assess the residual health risk within eight years of promulgation of a MACT standard (section 112(f)(2)).  EPA conducted this risk and technology review (RTR) and proposed RTR amendments for MACT 1 in 2007.  While a final action was signed on January 16, 2009, EPA proposed to withdraw it due to insufficient emissions information.

On August 4, 2011, EPA convened a Small Business Advocacy Review (SBAR) Panel under section 609(b) of the Regulatory Flexibility Act.  EPA included RTR amendments to MACT 1 and MACT 2, including the withdrawn final action, within the scope of that Panel.  Advocacy expressed concerns that EPA had not provided sufficient information to the small entity representatives.  (See Advocacy letters of June 6, 2011, and August 4, 2011, both attached.)  The SBAR Panel met with small entity representatives, but it did not complete the required report with recommendations to the EPA Administrator. 

In September 2012, EPA submitted a draft proposed rule covering the RTR amendments to the Office of Management and Budget (OMB) for interagency review under Executive Order (EO) 12866.  EPA withdrew it from OMB review in March 2013.  The draft proposed rule is not available to the public.

On August 20, 2013, EPA announced a proposed consent decree that would resolve a lawsuit seeking to compel EPA to take final action on these RTR amendments. This consent decree would require EPA to propose action by February 14, 2014, and take final action by December 19, 2014. 

Advocacy seeks to ensure sufficient time for RFA compliance

Advocacy is concerned that five months would not be enough time for EPA to reconvene the SBAR Panel, complete its work, and engage in EO 12866 interagency review if it is unable to certify that the rule would not have a significant economic impact on a substantial number of small entities.  Although some small entities have expressed concern about the economic impact of this rule, Advocacy is not currently asserting that EPA can or cannot certify the rule.

However, in the absence of such information, Advocacy advises EPA to allocate time to re-convene the SBAR Panel and re-engage the small entity representatives with more up-to-date information about EPA’s plans for the rulemaking. This information should include details about and results from the risk assessment EPA has performed to support its residual risk review and any information gathered in support of the technology review, with a particular emphasis on the costs of emission reductions.

EPA should also ensure that it has sufficient time to develop an Initial Regulatory Flexibility Analysis (IRFA) that is fully responsive to the Panel’s findings prior to a robust interagency review.  The Panel Report itself is intended to be an input into the Initial Regulatory Flexibility Analysis, which should be completed and available for comment with the proposed rule.

Accounting for preliminary consideration and analysis of regulatory options, time for a Panel, at least two months for development of the IRFA and rule, and up to 90 days for EO 12866 interagency review, Advocacy believes that EPA should allow itself significantly more than a year to develop a proposed rule that fully complies with and benefits from the RFA, if it lacks the factual basis to certify the rule under RFA section 605(b).  Advocacy appreciates that EPA has completed significant work on this rule, as evidenced by its prior submission to OMB.  This prior work will aid development of materials for the Panel and small entities to consider and of the subsequent IRFA, but will not necessarily shorten the time necessary for the Panel and interagency review.


For the reasons above, Advocacy advises EPA to request more time to complete the rulemaking required by the consent decree.  Advocacy believes that the five months provided are not sufficient to allow for full compliance with the procedures required by the RFA, including an SBAR Panel Report and development of an IRFA, or to ensure that the Administrator, in exercising her policy discretion, can benefit from the agency’s understanding of the rulemaking’s economic impact on small entities. 

Please do not hesitate to call me or contact Assistant Chief Counsel David Rostker ( or (202) 205-6966) if we can be of further assistance.



Winslow Sargeant, Ph.D                    

Chief Counsel for Advocacy             



cc:        Howard A. Shelanski, Administrator

            Office of Information and Regulatory Affairs

            Office of Management and Budget


[1] 15 U.S.C. § 634a, et. seq.

[2] 5 U.S.C. § 601, et. seq.

[3] Pub. L. 104-121, Title II, 110 Stat. 857 (1996)(codified in various sections of 5 U.S.C. § 601, et. seq.).

[4] 5 U.S.C. § 609(b).

[5] Under the RFA, small entities are defined as (1) a “small business” under section 3 of the Small Business Act and under size standards issued by the SBA in 13 C.F.R. § 121.201, or (2) a “small organization” that is a not-for-profit enterprise which is independently owned and operated and is not dominant in its field, or (3) a “small governmental jurisdiction” that is the government of a city, county, town, township, village, school district or special district with a population of less than 50,000 persons.  5 U.S.C. § 601.

[6] 5 U.S.C. § 604, as amended by the Small Business Jobs Act of 2010, Pub. Law No. 111-240, Sec. 1601.