Tuesday, August 16, 2011

Review Panel For Refinery MACT Is "Inadequate" & "Premature"

Aug 16: In a letter to U.S. EPA Administrator Lisa Jackson and OMB Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein, the Small Business Administration Office of Advocacy (Advocacy) has indicated that it believes the agencies are conducting an "inadequate" and "premature" Small Business Advocacy Review (SBAR) panel on its upcoming rulemaking, "Petroleum Refinery Sector Risk and Technology Review and New Source Performance Standards (NSPS)." The panel is to focus on developing updated emissions standards for petroleum refineries for multiple pollutants, including greenhouse gases (GHGs) [See WIMS 5/3/11].

    Advocacy states in the August 4, letter, "
Today, EPA convened a Small Business Advocacy Review (SBAR) panel on its upcoming rulemaking, 'Petroleum Refinery Sector Risk and Technology Review and New Source Performance Standards (NSPS).' The Office of Advocacy (Advocacy) does not agree that this panel should have convened at this time. We believe that EPA is not yet ready for this panel, since it has not provided the other panel members with information on the potential impacts of this rule and will not provide small entity representatives (SERs) with sufficient information upon which to discuss alternatives and provide recommendations to EPA. It is Advocacy's position that EPA is not in compliance with the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) due to the lack of information provided and that a panel conducted under these circumstances is unlikely to succeed at identifying reasonable regulatory alternatives, as required by the Regulatory Flexibility Act (RFA). Advocacy acknowledges that EPA is conducting this rulemaking under court-agreed deadlines as part of negotiated settlement agreements, deadlines to which Advocacy objected in a public comment letter to EPA on January 19, 2011. EPA cannot rely on these deadlines to justify an inadequate SBAR panel." [Note: EPA indicates that it must comply with the settlement agreement proposal date of December 10, 2011 and promulgation date of November 10, 2012].
    Advocacy states that, "EPA has broad discretion to design a regulatory program to regulate GHGs under section 111 of the Clean Air Act. For that reason, Advocacy believes that SERs have not been provided enough information to project how EPA will structure this regulation or establish the relevant standards. In the absence of information, SERs will be unable to understand potential impacts of the rulemaking and make recommendations about regulatory alternatives that would minimize the impacts on small entities while fulfilling EPA's goals. Advocacy raised this concern at the convening of the SBAR panel for the EGU GHG standards of performance rulemaking earlier this year."
    Advocacy concludes, "Advocacy states its objection to the convening of this panel because we believe EPA is not providing sufficient information to the SERs. As a result, the SBAR panels will likely be unable to identify specific regulatory alternatives that would 'accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.' We believe input from small entities will be valuable in this important rulemaking, and we want to ensure SERs on this SBAR panel are able to contribute effectively to this process."
    Access the letter from SBA Advocacy which includes further details (click here). Access details from EPA including, background information for the Refinery panel (click here). [*Air, *Climate, *Transport, *Energy]