EPA may, at its discretion, grant a refiner of gasoline that processes crude oil through refinery processing units, for one or more of its refineries, temporary relief from some or all of the provisions of this subpart.

(a) Extreme hardship circumstances.

(1) EPA may, at its discretion, grant a refiner of gasoline that processes crude oil through refinery processing units, for one or more of its refineries, temporary relief from some or all of the provisions of this subpart. EPA may grant such relief provided that the refiner demonstrates all the following:

(i) Unusual circumstances exist that impose extreme hardship and significantly affect the refiner's ability to comply by the applicable date.

(ii) It has made best efforts to comply with the requirements of this subpart.

(2) The application must specify the factors that demonstrate a significant economic hardship and must provide a detailed discussion regarding the inability of the refinery to produce gasoline meeting the requirements of §80.1603. Such an application must include, at a minimum, all the following information:

(i) Documentation of efforts made to obtain necessary financing, including all the following:

(A) Copies of loan applications for the necessary financing of the construction of appropriate sulfur reduction technology and other equipment procurements or improvements.

(B) If financing has been disapproved or is otherwise unsuccessful, documents supporting the basis for that disapproval and evidence of efforts to pursue other means of financing.

(ii) A detailed analysis of the reasons the refinery is unable to produce gasoline meeting the standards of this subpart O in 2017, including costs, specification of equipment still needed, potential equipment suppliers, and efforts already completed to obtain the necessary equipment.

(iii) If unavailability of equipment is part of the reason for the inability to comply, a discussion of other options considered, and the reasons these other options are not feasible.

(iv) If relevant, a demonstration that a needed or lower cost technology is immediately unavailable, but will be available in the near future, and full information regarding when and from what sources it will be available.

(v) Schematic drawings of the refinery configuration as of January 1, 2011, and as of the date of the hardship extension application, and any planned future additions or changes.

(vi) If relevant, a demonstration that a temporary unavailability exists of engineering or construction resources necessary for design or installation of the needed equipment.

(vii) A detailed analysis of the reasons the refinery is unable to use credits to meet the gasoline standards of this subpart O, including all avenues pursued to generate and/or procure credits, their cost, and ability to finance them.

(viii) A discussion of any sulfur reductions that can be achieved from current levels.

(ix) The date the refiner anticipates compliance with the standards in §80.1603 can be achieved at its refinery.

(x) An analysis of the economic impact of compliance on the refiner's business (including financial statements from the last 5 years, or for any time period up to 10 years, at EPA's request).

(xi) Any other information regarding other strategies considered, including strategies or components of strategies that do not involve installation of equipment, and why meeting the standards in §80.1603 beginning in 2017 (or 2020 for approved small refiners and small volume refineries) is infeasible.

(3) Hardship applications under this paragraph (a) must be submitted to EPA by January 1, 2016 to the address listed in paragraph (d) of this section.

(b) Extreme unforeseen circumstances hardship.

(1) In appropriate extreme, unusual, and unforeseen circumstances (for example, natural disaster or refinery fire) which are clearly outside the control of the refiner or importer and which could not have been avoided by the exercise of prudence, diligence, and due care, EPA may permit a refiner or importer, for a brief period, to distribute gasoline which does not meet the requirements of this subpart for all the following reasons:

(i) It is in the public interest to do so (e.g., distribution of the nonconforming gasoline is necessary to meet projected shortfalls which cannot otherwise be compensated for).

(ii) The refiner or importer exercised prudent planning and was not able to avoid the violation and has taken all reasonable steps to minimize the extent of the nonconformity.

(iii) The refiner or importer can show how the requirements for making compliant gasoline, and/or purchasing credits to partially or completely offset the nonconformity, will be expeditiously achieved.

(iv) The refiner or importer agrees to make up any air quality detriment associated with the nonconforming gasoline, where practicable.

(v) The refiner or importer pays to the U.S. Treasury an amount equal to the economic benefit of the nonconformity minus the amount expended pursuant to paragraph (b)(1)(iv) of this section, in making up the air quality detriment.

(2) The hardship application must meet all other applicable requirements of this section, except paragraph (a) of this section.

(c) Applications.

(1) The hardship extension application must contain a letter signed by the president or the chief operating officer or chief executive officer of the company, or his/her designee, stating that the information contained in the application is true to the best of his/her knowledge.

(2) Hardship applications under this section must be sent to the attention of “Tier 3 Program (Hardship Application)” to the address in §80.10(a).

[79 FR 23655, Apr. 28, 2014, as amended at 85 FR 7085, Feb. 6, 2020]