[Federal Register Volume 67, Number 57 (Monday, March 25, 2002)]
[Proposed Rules]
[Pages 13684-13700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-7097]



[[Page 13683]]

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Part II





Environmental Protection Agency





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40 CFR Parts 260 and 261



Regulation of Hazardous Oil-Bearing Secondary Materials From the 
Petroleum Refining Industry and Other Hazardous Secondary Materials 
Processed in a Gasification System To Produce Synthesis Gas; Proposed 
Rule

  Federal Register / Vol. 67, No. 57 / Monday, March 25, 2002 / 
Proposed Rules  

[[Page 13684]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[FRL-7162-8]
RIN 2050-AE78


Regulation of Hazardous Oil-Bearing Secondary Materials From the 
Petroleum Refining Industry and Other Hazardous Secondary Materials 
Processed in a Gasification System To Produce Synthesis Gas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing revisions to the RCRA hazardous waste 
program to allow a conditional exclusion from the definition of solid 
waste. This exclusion would be for hazardous oil-bearing secondary 
materials generated by the petroleum refinery industry when these 
materials are processed in a gasification system to produce synthesis 
gas fuel and other non-fuel chemical by-products. We are proposing this 
exclusion to put the gasification of these hazardous oil-bearing 
secondary materials on the same regulatory footing (i.e., excluded) as 
other hazardous secondary materials returned to a petroleum refining 
process. If adopted, this proposal will establish a more consistent 
regulatory framework for this practice, potentially enhancing the use 
of this technology, as well as establishing conditions on the practice 
to assure the legitimacy of this fuel manufacturing activity.
    We are also soliciting comment on a proposal that would extend the 
conditional exclusion to other hazardous secondary materials generated 
by industries (other than the petroleum refining industry).

DATES: EPA will accept public comment on this proposed rule until June 
24, 2002. Comments postmarked after the close of the comment period 
will be stamped ``late'' and may or may not be considered by the 
Agency.

ADDRESSES: Commenters should submit an original and two copies of their 
comments referencing Docket Number F-2002-RPRP-FFFFF to: (1) If using 
regular U. S. Postal Service mail: RCRA Docket Information Center, 
Office of Solid Waste (5305G), U.S. Environmental Protection Agency 
Headquarters (EPA-HQ), 1200 Pennsylvania Avenue, NW., Washington, DC 
20460-0002, or (2) If using special delivery, such as overnight express 
service: RCRA Docket Information Center (RIC), Crystal Gateway One, 
1235 Jefferson Davis Highway, First Floor, Arlington, VA 22202. The 
official record (i.e., public docket) for this proposed rulemaking is 
F-2001-RPRP-FFFFF. In addition to this official record, two additional 
dockets have material supporting this proposal. They are: F-98-PR2A-
FFFFF and F-98-RCSF-FFFFF.
    Public comments and supporting materials are available for viewing 
in the RCRA Docket Information Center (RIC), located at Crystal Gateway 
I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The RIC is 
open from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal 
holidays. To review docket materials, it is recommended that the public 
make an appointment by calling 703-603-9230. The public may copy a 
maximum of 100 pages from any regulatory docket at no charge. 
Additional copies cost $0.15/page. The index and some supporting 
materials are available electronically. See the ``Supplementary 
Information'' section for information on accessing them.

FOR FURTHER INFORMATION CONTACT: For general information, contact the 
RCRA Hotline at 1-800-424-9346 or TDD 1-800-553-7672 (hearing 
impaired). In the Washington, DC, metropolitan area, call 703-412-9810 
or TDD 703-412-3323. The RCRA Hotline is open Monday-Friday, 9 am to 6 
pm, Eastern Standard Time. For more detailed information on specific 
aspects of this proposed rulemaking, contact Elaine Eby at 703-308-8449 
or [email protected], or write her at the Office of Solid Waste, 
5302W, U.S. Environmental Protection Agency, Ariel Rios Building, 1200 
Pennsylvania Avenue, NW., Washington, DC 20460-0002.

SUPPLEMENTARY INFORMATION:

Electronic Comment Submission

    You may submit comments electronically through the Internet to: 
[email protected]. You should identify comments in electronic format 
with the docket number F-2002-RPRP--FFFFF. All electronic comments must 
be submitted as an ASCII (text) file avoiding the use of special 
characters and any form of encryption. If possible, EPA's Office of 
Solid Waste (OSW) would also like to receive an additional copy of the 
comments on disk in WordPerfect 6.1 file format.
    Commenters should not submit electronically any confidential 
business information (CBI). An original and two copies of CBI must be 
submitted under separate cover to: RCRA CBI Document Control Officer, 
Office of Solid Waste (5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460-0002.

Availability of the Proposal on the Internet

    Please follow these instructions to access the proposal: From the 
World Wide Web (WWW) type http://www.epa.gov/epaoswer/hazwaste/gas.htm.
    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the RIC listed in the ADDRESSES 
section at the beginning of this document.
    EPA responses to comments, whether the comments are written or 
electronic, will be published in a notice in the Federal Register or in 
a response to comments document placed in the official record for this 
proposed rulemaking. EPA will not immediately reply to commenters 
electronically other than to seek clarification of electronic comments 
that may be garbled in transmission or during conversion to paper form, 
as discussed above.

How Can I Influence EPA's Thinking on This Proposed Rule?

    In developing this proposal, we tried to address the concerns of 
all our stakeholders. Your comments will help us improve this rule. We 
invite you to provide different views on options we propose, new 
approaches we haven't considered, new data, how this rule may effect 
you, or other relevant information. We welcome your views on all 
aspects of this proposed rule, but we request comments in particular on 
the items we have specifically identified throughout the proposal. Your 
comments will be most effective if you follow the suggestions below:
     Explain your views as clearly as possible and why you feel 
that way.
     Provide solid technical and cost data to support your 
views.
     If you estimate potential costs, explain how you arrived 
at the estimate.
     Tell us which parts you support, as well as those you 
disagree with.
     Provide specific examples to illustrate your concerns.
     Offer specific alternatives.
     Refer your comments to specific sections of the proposal, 
such as the units or page numbers of the preamble, or the regulatory 
sections.
     Make sure to submit your comments by the deadline in this 
document.

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     Be sure to include the name, date, and docket number with 
your comments.
    The Agency will consider the public comments during development of 
the final rule related to this action. The Agency urges commenters 
submitting data in support of their views to include evidence that 
appropriate quality assurance/quality control (QA/QC) procedures were 
followed in generating the data. Data the Agency cannot verify through 
QA/QC documentation may be given less consideration or disregarded in 
developing regulatory options for the final rule.

Table of Contents

I. Statutory Authority.
II. Summary of Today's Proposal.
III. Why Are We Proposing This Exclusion?
IV. What Are The Environmental Benefits of This Proposal?
V. Background and Overview.
    A. How Have Gasification Devices Been Used in the Past?
    B. How Do Gasification Systems Operate?
    C. How Do Gasification Systems Remove Contaminants From Raw 
Synthesis Gas?
    D. What Air Emissions Result From Gasification Systems?
    E. What Solid Wastes Are Generated by Gasification Systems?
    F. Gasification Systems Processing Hazardous Oil-Bearing 
Secondary Materials From Petroleum Refineries.
VI. How Do Gasification Systems Differ From Hazardous Waste 
Treatment Units?
VII. Detailed Description of Today's Proposal
    A. What Are the Conditions of the Exclusion?
    1. Definition of a Gasification System
    2. Synthesis Gas Fuel Specification
    3. Land Placement of Products, Co-Products, and Solid Waste 
Residuals
    4. Speculative Accumulation and Storage of Excluded Materials
    B. What Are the Proposed Recordkeeping and Reporting 
Requirements?
    C. How Do We Ensure Excluded Material Is Processed In a 
Gasification System?
    D. Are We Concerned About Volatile Metals In the Excluded 
Material?
    E. Are We Concerned About Dioxin Emissions From the Processing 
of Excluded Material?
VIII. Other Hazardous Secondary Materials That Could Also Be 
Conditionally Excluded When Processed In a Gasification System.
    A. What Are the Environmental Benefits of a Broader Exclusion?
    B. What is the Regulatory Status of a Gasification System?
    C. What Are the Conditions of a Broaden Exclusion?
    D. What Are the Proposed Recordkeeping and Reporting 
Requirements for This Broader Exclusion?
IX. State Authorization
    A. Statutory Authority
    B. Effect on State Authorization
X. Administrative Assessments
    A. Executive Order 12866
    B. Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 
U.S.C. 601 et. seq.
    C. Unfunded Mandates Reform Act
    D. Federalism--Applicability of Executive Order 13132
    E. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    F. Executive Order 13045: Protection of Children from 
Environmental Risks and Safety Risks
    G. National Technology Transfer Advancement Act of 1995
    H. Executive Order 12898
    I. Executive Order 13211 (Energy Effects)
    J. Paperwork Reduction Act

I. Statutory Authority

    These regulations are proposed under the authority of sections 
3001, 3002, 3003, and 3004 of the Solid Waste Disposal Act of 1970, as 
amended by the Resource Conservation and Recovery Act of 1976 (RCRA), 
as amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 
42 U.S.C. 6921, 6922, 6923 and 6924.

II. Summary of Today's Proposal

    The Environmental Protection Agency (EPA or the Agency) is today 
proposing a conditional exclusion from the definition of solid waste. 
This exclusion will apply to hazardous oil-bearing secondary materials 
(i.e., sludges, byproducts, or spent materials) generated by the 
petroleum refining industry (Standard Industrial Classification (SIC) 
2911) when processed, either on-site or off-site, in a gasification 
system to produce synthesis gas fuel and other non-fuel chemical by-
products. We are proposing that the exclusion be subject to a set of 
conditions that specify the following: (1) The system meets the 
definition of a gasification system; (2) the system generates a 
synthesis gas fuel that meets the specifications of exempted synthesis 
gas; (3) the materials generated by the gasification system must not be 
placed on the land if they exceed the nonwastewater Universal Treatment 
Standards (UTS) for chromium, lead, nickel, vanadium, arsenic, and 
antimony (found at 40 CFR 268.48); and (4) the excluded materials must 
not be placed on the land or speculatively accumulated prior to 
insertion into the gasification system.
    We are also soliciting comment on a proposed option to broaden 
today's conditional exclusion to other generated hazardous secondary 
materials.

III. Why Are We Proposing This Exclusion?

    We are proposing this exclusion to put gasification of hazardous 
oil-bearing secondary materials (i.e., sludges, byproducts, or spent 
materials) on the same regulatory footing, i.e., excluded--as other 
secondary materials returned to a petroleum refining process. We 
believe that such operations are better viewed as an aspect of 
petroleum production rather than as hazardous waste management. (See 63 
FR 42110, August 6, 1998) At the present time, gasification systems 
processing these materials are exempt from RCRA permitting, as 
recycling units. While the operation itself (i.e., gasification) is 
exempt, there are numerous RCRA requirements that still apply to the 
overall operation (e.g., storage and handling). The Agency believes 
that gasification systems processing hazardous oil-bearing secondary 
materials from petroleum refineries operate as fuel manufacturing 
devices whether the operation takes place at a petroleum refinery or 
elsewhere. As such, we believe that these additional requirements 
present an unnecessary impediment to a fuel manufacturing activity.\1\ 
We are therefore proposing to revise the current regulations that apply 
to this activity to better reflect our current way of thinking.
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    \1\ In a May 25, 1995 letter from Michael Shapiro, Director of 
the Office of Solid Waste to William Spratlin, Director, EPA Region 
VII Air, RCRA, and Toxics Division, we explained that our 
regulations classify gasification devices operating at petroleum 
refineries to convert waste materials into fuels as recycling 
devices exempt from RCRA permitting. OSWER Directive 9441.1995(18).
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    Today's proposal supplements the current exclusions applicable to 
the petroleum refining industry (found at 40 CFR 261.4(a)(12)). In 
fact, we are proposing this exclusion for many of the same reasons that 
we excluded hazardous oil-bearing secondary materials recycled through 
coking and quench coking processes in the petroleum refining industry. 
See August 6, 1998, Petroleum Listing Final Rule (see 63 FR 42110).\2\ 
In that rule, we

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determined that hazardous oil-bearing secondary materials returned to a 
petroleum refinery fuel production process need not be regarded as RCRA 
solid wastes, even though a fuel is ultimately produced. See 63 FR at 
42127-42128. Instead, the insertion of petroleum refining residuals 
back into the refining process can be viewed as a production process 
that involves the recovery of fuel value from crude oil, which is the 
basic raw material used in petroleum refining.
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    \2\ On July 15, 1998, we published in the Federal Register (see 
63 FR 38139) a Notice Of Data Availability (NODA). In the NODA, we 
requested comment on extending a then-proposed and now final solid 
waste exclusion applying to certain recycling activities performed 
at petroleum refineries (See 63 FR 42110, August 6, 1998). The 
Agency requested comment as to whether the exclusion should also 
apply to the recycling of hazardous oil-bearing secondary materials 
in a gasification system operating at a petroleum refinery. As a 
result of the comments received on the NODA, the Agency proceeded 
with investigating whether gasification of oil-bearing hazardous 
secondary materials from the petroleum industry is better regulated 
as a recycling waste-management activity or whether it should be 
excluded as a fuel manufacturing activity. The gasification industry 
has argued that the current regulatory process does not make sense 
because secondary materials from the petroleum refining industry 
should not be defined as solid wastes if they are to be processed in 
a gasification system. Nor is the operation of the gasification 
system, pursuant to the exemption for recycling processes in 40 CFR 
261.6(c)(1), altogether satisfactory to the industry. This is 
because the resulting synthesis gas fuel remains classified as a 
hazardous waste fuel (see 40 CFR 261.2(c)(2) (fuels produced from 
secondary materials are normally themselves wastes) and 40 CFR 
261.3(c)(2)(so-called derived from rule, which, as relevant here, 
states that fuels derived from listed wastes remain hazardous waste-
derived fuels)), unless it meets the specification for hazardous 
constituents set out in 40 CFR 261.38 of the rules. The gasification 
industry maintains that this regulatory framework discourages the 
use of gasification as a means to recycle hazardous oil-bearing 
secondary materials from the petroleum refining industry. 
Representatives of the petroleum refining industry have suggested 
that an exclusion from the definition of solid waste for secondary 
materials processed in a gasification system is a more appropriate 
classification under RCRA, and would greatly enhance the use of this 
technology in the industry. Proponents of gasification technologies 
likewise maintain that petroleum refineries would be more likely to 
recycle their solid waste if the regulatory status of the devices 
and the gasification system were clearly identified to be a part of 
the fuel manufacturing process.
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    In the case of gasification, we are proposing this exclusion 
because we have determined that the situation is analogous. 
Gasification of hazardous oil-bearing secondary materials from 
petroleum refineries involves the recovery of organic components from 
the residuals of crude oil refining to produce a gaseous fuel, which 
can be viewed as part of a fuel production process. Particular indicia 
that this is a production process are the high cost of construction a 
gasification unit and the exacting product specification that apply to 
the final product. Furthermore, the gasification process appears to 
provide a better and more efficient means to recover fuels from oil-
bearing materials than provided by quench coking, which we already 
determined to be a valid process in refining operations (see 63 FR 
42114).
    If adopted, this exclusion will provide a more consistent 
regulatory framework for petroleum refineries that wish to include 
gasification as part of their refining configuration. We also believe 
it will promote the use of a fuel manufacturing process that produces 
marketable fuels and chemicals from materials that were otherwise 
destined for waste treatment, disposal, or a less environmentally 
benign recycling activity.

IV. What Are the Environmental Benefits of This Proposal?

    There are numerous environmental benefits associated with today's 
proposal. First, if promulgated, the exclusion will reduce the total 
amount of hazardous waste sent for disposal by petroleum refineries. 
Based on data from the 1997 Biennial Reporting System (BRS) database, 
petroleum refineries operating in the United States generate 
approximately 130 million tons of RCRA hazardous waste annually with at 
least 7-10 million tons managed in RCRA units.\3\ Although equal 
volumes of these same materials would be generated under this proposal, 
a large fraction of the waste materials generated by petroleum 
refineries would be processed into synthesis gas and other co-products 
reducing the amount of waste materials sent for traditional RCRA 
treatment and disposal.
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    \3\ See Regulatory Impacts of Proposed Exclusions of Petroleum 
Refinery Wastes.
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    If adopted, today's proposal also likely provides additional 
benefits to the environment because of the unique features of 
gasification, including: (1) Increased efficiency in the production of 
electricity; (2) reduction in emissions of acid rain causing 
pollutants; (3) reduction in particulate matter and pollutants 
implicated in global warming; (4) increased resource conservation; (5) 
displacement of virgin materials used in the chemical manufacturing 
industry by chemicals produced from gasification; and (6) reduction in 
energy usage and pollution from reductions in the acquisition, 
transportation, and preparation of virgin materials used in electricity 
production, petroleum refining and chemical manufacturing industries.

V. Background and Overview

A. How Have Gasification Devices Been Used in the Past?

    Gasification devices have a long history of use in the United 
States for the production of fuels. The use of gasification processes 
to produce useable quantities of fuel began in the mid 1800's when 
manufactured gas plants converted coal into hydrogen gas and methane to 
power city street lamps. Following the widespread use of electricity to 
power city lights, the operation of manufactured gas plants largely 
ended. Use of gasification systems to produce fuel from coal or other 
organic sources increased briefly during the years surrounding and 
during World War II as the international community experienced a 
shortage of fuels derived from oil. Following the end of World War II, 
the use of gasification declined rapidly as more effective techniques 
to produce fuels from crude oil were developed and crude oil was once 
again plentiful. In the 1970's, gasification technologies were 
resurrected to deal with fuel shortages. During this time, the United 
States Department of Energy (DOE) financed research in gasification 
technologies that resulted in commercial ventures designed to use the 
technology to produce higher value fuels from low value coal. Over the 
last 10 to 15 years, private industry and the DOE have continued their 
investigation of gasification as a clean coal energy alternative, and 
have developed better methods to extract fuel value from organic 
containing materials, as well as developing more efficient turbines to 
utilize the clean burning fuel.
    In recent years, the oil refining and chemical manufacturing 
industries have configured gasification systems to produce base 
chemical products and fuels. Presently, gasification systems operate 
around the world in a number of different configurations. In the United 
States, gasification systems have been designed to gasify coal, 
municipal solid waste, tires, petroleum coke, biomass, and oil-bearing 
hazardous secondary materials into synthesis gas for the production of 
electricity or use as a feedstock to produce more complex chemical 
products. Data on the use of gasification to process hazardous waste is 
limited. Information that does exist, has largely been confined to 
configurations where the systems produce specialty chemical 
intermediates from virgin materials, or where the devices produce a 
fuel from historically waste-like materials that can be burned for 
energy recovery (e.g., gasification of petroleum refinery secondary 
materials).
    There are two reasons gasification has been used relatively 
infrequently to process hazardous wastes. First, gasification systems 
are expensive and generally cost more to construct and operate than 
conventional process devices utilized by fuel and chemical 
manufacturers. Second, current regulations (albeit relatively minimal 
for the gasification of hazardous oil-bearing secondary materials from 
the petroleum industry) limit operators processing these materials from 
using them in the most cost effective manner. However, because of 
increased emphasis on the use of more efficient systems, there is 
renewed interest in using gasification as a possible method to reduce 
the volume

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of wastes disposed, and thereby reduce the associated treatment costs 
of those wastes, while producing valuable commodities from the process.

B. How Do Gasification Systems Operate?

    In general, gasification systems are designed to react carbon 
containing materials and steam at high temperatures under partial 
oxidation conditions to produce a synthesis gas fuel composed mainly of 
carbon monoxide and hydrogen. However, all gasification systems do not 
operate in exactly the same manner. Gasification systems can be 
designed to operate at high or low pressures, reducing conditions, 
using dry or wet feed systems, but they are all operated in a manner 
that limits the complete oxidation of hydrogen and carbon monoxide to 
water and carbon dioxide. Some gasification systems derive a portion of 
the energy--in the form of heat--from the partial oxidation of the 
materials being fed to the system. When the feed materials are 
partially oxidized, heat is given off. The heat helps sustain the 
process by promoting the disassociation of other molecular species in 
the reactor freeing the molecular species for limited oxidation. In 
gasification systems, this process promotes the formation of hydrogen 
and carbon monoxide species which are the base compounds in synthesis 
gas fuel. Using organic materials as both fuel and raw material for the 
gasification process is one of the reasons the system operates with 
increased efficiency when compared to traditional power plants that use 
coal or petroleum coke as their fuel.
    Gasification systems generally include two basic components. The 
first is the high temperature reactor or gasifier and the second is a 
gas cleanup or polishing system used to remove various contaminants 
from the raw (un-polished) synthesis gas fuel. The two systems work in 
conjunction to produce a high purity synthesis gas that can be used 
directly as a fuel for power production, or used to produce chemicals 
or fuels in other manufacturing processes. Operators of gasification 
systems monitor and control the operation to ensure that it is 
producing a high quality synthesis gas. They monitor and limit 
parameters such as the BTU value, sulfur content, chloride content, and 
ash content of the materials fed to the reactor (gasifier). They also 
continuously monitor and regulate the amount of oxygen fed to the 
reactor, the temperature of the reactor, and the composition of the raw 
synthesis gas produced by the reactor. In the synthesis gas cleanup 
stage, operators monitor and regulate various other parameters that 
maintain the removal efficiency of the cleanup system. The result of 
these parameter specifications and attendant monitoring is production 
of a synthesis gas that meets the desired specifications.
    Gasification systems, similar to many of the more traditional fuel 
production units found at petroleum refineries, are expensive, highly 
engineered systems that must be carefully operated to produce 
marketable fuels and co-products in a cost-effective manner. Both 
traditional petroleum refining processes (e.g., distillation, catalytic 
cracking, fractionation, thermal cracking, etc.) and gasification 
systems operate under conditions in which the feed, temperature, and 
pressure are closely controlled to optimize the production of 
marketable fuels or fuel components. Owners/Operators of both 
gasification systems and traditional refinery process units must 
analyze and characterize the feed materials, in addition to controlling 
the operation of the unit. Operational control of the gasification 
system is necessary to optimize the conversion processes occurring in 
the reaction chamber and to regulate the performance of the gas 
polishing systems.

C. How Do Gasification Systems Remove Contaminants From Raw Synthesis 
Gas?

    In a gasification system, the gas cleanup or polishing component 
will be configured and monitored to operate with varying degrees of 
performance. The operation of the gas cleanup component is determined 
by the composition of the raw synthesis gas and the product 
specifications for the fuel and chemicals generated. Generally, the 
systems operate with sufficient effectiveness to produce a synthesis 
gas that contains low contaminant levels of sulfur, nitrogen, ash, and 
metals. The systems used to remove contaminants are generally the same 
types of systems used in other industrial settings to produce 
commercial grade chemical compounds or to remove unwanted contaminants 
from gaseous effluent streams. These systems have a history of use in 
industrial settings with the parameters that control their operation 
being well understood.
    As we explained earlier, the synthesis gas product from 
gasification is not released directly to the atmosphere. Gasification 
systems are generally designed to be closed to the environment. In 
gasification systems, the raw synthesis gas exits the reactor at a 
temperature between 1800 and 3000 degrees Fahrenheit (depending on the 
design and operating characteristics of the device). Generally, after 
exiting the reactor, heat value from the gas is extracted in systems 
designed to produce steam and electricity. The raw synthesis gas is 
then typically processed in a series of systems designed to remove 
entrained particulate matter, acid gases (such as hydrochloric acid), 
and other inorganic compounds. The gas cleanup systems typically 
include filters or scrubbers for the removal of entrained particles and 
absorbers for the removal/recovery of sulfur and chlorine. The solids 
recovered in the filters or scrubbers are frequently put back into the 
gasification system. The polishing systems that remove the unwanted 
contaminants from the raw synthesis gas also concentrate these 
materials to form chemical by-products. The reduced sulfur species are 
recovered as elemental sulfur, or in some cases, converted to a 
sulfuric acid by-product. The typical sulfur removal and recovery 
process used to clean the raw synthesis gas (to yield a high purity 
fuel) are the same commercially available methods used in other 
industrial applications such as oil refining and natural gas recovery. 
Sulfur recoveries of 95% to 99% can typically be achieved using these 
systems. These systems do include process vents, but the synthesis gas 
is not released through these vents. After the gas is polished, it is 
sent for turbine combustion to produce electricity and steam or to 
produce other chemical products.
    Metal species found in the materials fed to the gasification system 
are controlled both in the reactor phase, and in the cleanup systems 
used by the device. The low volatility metals are captured in the slag 
emitted from the reactor, with the higher volatility metals being 
captured in the cleanup systems, or in the particulate removal systems 
and acid gas scrubbers. These captured metals can be put back into the 
reactor or be removed from the system and disposed. Control of metal 
compounds in gasification systems is discussed more in a later section 
of today's proposal.
    Ultimately, the extent to which contaminant removal systems polish 
the raw synthesis gas is governed by the fuel specifications for the 
systems that use the synthesis gas and/or the environmental regulations 
that apply to those systems. For example, use of synthesis gas in 
combustion gas turbines can require fairly low levels of alkalis and 
total entrained particles, thus the gas cleanup system would be 
tailored for this type of contaminant removal. The turbine system may 
also have fairly low sulfur oxide(s) emissions standards

[[Page 13688]]

applicable to the turbine stack, so the synthesis gas will also have to 
be cleaned to a level to meet the emission standard. Therefore, the 
ability of gasification systems to extract useful chemical by-products 
from hazardous oil-bearing secondary materials is based on the extent 
the gas must be polished before it is released for its intended 
commercial application.

D. What Air Emissions Result From Gasification Systems?

    As we stated earlier, there are generally no direct emissions to 
the atmosphere from a gasification system.4 5 Emissions to 
the atmosphere from gasification activities are nearly always the 
result of using the synthesis gas as a fuel for the production of power 
or heat generation. As a fuel, the synthesis gas can be burned in 
simple cycle gas turbines or in steam boilers. However, synthesis gas 
is typically used in more advanced systems that are designed as 
combined cycle gas turbine/steam boilers. Combined cycle turbine 
configurations exploit physical characteristics unique to synthesis gas 
to produce electricity with greater efficiency than other power 
generating designs. Alternatively, the synthesis gas can also be used 
as a feedstock for chemical manufacturing processes including the 
production of ammonia, methanol, acetic acid, and hydrogen.
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    \4\ Generally, gasification systems are designed and operated to 
prevent direct releases to the atmosphere when operating to produce 
synthesis gas; however, some devices incorporate small incinerators 
that combust effluent discharges from the raw synthesis gas cleanup 
systems and those devices do release combustion off-gases to the 
atmosphere. Under today's proposal, devices that utilize 
incinerators to combust non-gaseous effluents from the gasification 
process, or raw synthesis gas cleanup systems would be subject to 
appropriate regulations to control emissions from those sources. For 
example, if characteristic hazardous waste is removed from the 
gasification process and sent to an incinerator for destruction, the 
combustion device is subject to regulation as a hazardous waste 
incinerator.
    \5\ Gasification systems are designed with release vents or 
flares that operate during emergencies or during malfunctioning 
operations. Flares and release vents are necessary to prevent damage 
or catastrophic failure of the gasification system in the event of a 
major malfunction. These types of relief systems are common at 
facilities that manufacture products using thermal processes. The 
operation of the flares or release vents is regulated by each 
facility's Title V Clean Air Act permit.
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    Metal and chlorine emissions from the combustion of synthesis gas 
depend on the composition of the synthesis gas, which is dependent on 
the effectiveness of the synthesis gas cleanup system. Chlorine control 
using wet scrubbers to remove HCl has been used successfully for many 
years and can routinely achieve a removal effectiveness of 99%.\6\ 
Semi-volatile metals are expected to be contained primarily in the 
filter/scrubber ash. Lower volatility metals are primarily bound in the 
slag. Mercury, which is not found in significant quantities in 
petroleum refinery waste, is highly volatile and is expected to be 
controlled only to a small degree in a gasifier's wet scrubbers. If 
mercury was present in the hazardous oil-bearing secondary materials 
generated by the petroleum refining industry and those materials were 
processed by a gasification system, the mercury would likely be emitted 
out the stack of the device (i.e., turbine) firing the synthesis gas 
produced by the gasification system.\7\ Potential mercury emissions are 
not a concern for this proposed conditional exclusion because hazardous 
oil-bearing secondary materials generated by petroleum refineries are 
not expected to contain significant quantities of mercury. See Docket 
Number F-98-PR2A-FFFFF, Identification and Listing of Hazardous Waste; 
Petroleum Refining Process Wastes.\8\
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    \6\ Removal effectiveness is based on data that was used to 
support the Hazardous Waste Combustion Phase 1 MACT rule and is 
based on data from hazardous waste burning incinerators. See Docket 
Number F-1999-RC2F-FFFFF and the technical support document for: 
NESHAPS: Final Standards for Hazardous Air Pollutants for Hazardous 
Waste Combustors. 64 FR 52828. September 30, l999. Removal 
effectiveness of systems used by gasification systems were not 
evaluated for this notice.
    \7\ A Comparison of Gasification and Incineration of Hazardous 
Waste--Final Report. March 30, 2000. This report was prepared for 
the U.S. Department of Energy and contrasts incineration and 
gasification technologies. It also evaluates emissions tests 
performed on gasification systems processing coal that shows that 
some mercury is controlled in the gasification process. The report 
concludes that further tests are necessary to understand the control 
mechanism and to ensure that the data is not an artifact of poor 
composite coal sampling.
    \8\ In a later section of today's proposal, we request comment 
on options we are considering to revise the synthesis gas 
specification (found at 40 CFR 261.38(b)) to reduce the allowable 
concentrations of RCRA metals that can exist in waste-derived 
synthesis gas excluded from the definition of solid waste. This is 
because we have determined that the specification does not represent 
the concentration of metals that realistically exists in synthesis 
gas derived from hazardous waste.
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E. What Solid Wastes are Generated by Gasification Systems?

    Gasification systems also generate solid waste residuals which are 
largely dependent on the design, configuration, and operation of the 
gasification system. They can include a slag material composed 
primarily of ash and low and semi volatile metals bound in a glass-like 
substrate that is released from the reactor component of the gasifier, 
sour liquors from the cleanup systems that are used to scrub 
contaminants from the product synthesis, and particulate matter 
captured in particulate control systems used by the gasification system 
to remove fine particulate matter from the synthesis gas.\9\ The 
gasification designs we have reviewed either put the liquid streams and 
particulate matter back into the reactor, remove the contaminants from 
the scrubbing streams to produce valuable chemical by-products, treat 
the effluents in devices designed to destroy or reduce the toxicity of 
the effluents, or send the effluents for disposal.
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    \9\ Data submitted by Texaco in response to the July 1998 NODA 
suggests that the slag produced by their gasification systems is an 
inert material that does not leach metals because the glass-like 
matrix of the material effectively stabilizes the metals. See Docket 
Number F-98-PR2A-FFFFF.
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    Analysis conducted as part of research efforts utilizing 
gasification technologies has shown that composition of the residues in 
a given gasification system are largely dependent on the composition of 
the secondary materials fed to the system. Data submitted by Texaco 
show that the composition of the vitrified slag that is generated by 
the gasification reactor is mostly inert material that does not exhibit 
a characteristic of hazardous waste.\10\ At this time, we lack the data 
necessary to determine whether the characteristics of the residues from 
gasification are due to the dilution effect of the other materials 
being processed along with petroleum hazardous secondary materials in 
the device, or is the result of a unique operational or design trait 
associated with gasification systems.\11\ The Agency specifically 
solicits comment on this issue.
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    \10\ See: ``Analysis of Residues From Texaco Gasification 
Process'' which is found in the docket supporting this proposed 
rule.
    \11\ Certain gasification systems function because they are 
designed to take advantage of the heat given off in the limited 
oxidation reactions, and thus require the introduction of inorganic 
material to provide thermal inertia for the system. This design 
characteristic could contribute to the inert quality of the residue 
material.
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    Under today's proposal, we would classify solid waste residues 
generated during the gasification of excluded material as newly 
generated, and determine whether they are hazardous based on whether 
they exhibit a characteristic when they are generated. Should a residue 
exhibit a characteristic, it would have to be managed in compliance 
with hazardous waste regulations. (As noted earlier, to assure process 
legitimacy, we are also proposing that the residues comply with the UTS 
for chromium, lead, nickel, vanadium, arsenic, and antimony).\12\
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    \12\ EPA's first study of wastes from coal gasification are set 
forth in the 1990 Report to Congress on Special Wastes from Mineral 
Processing. (See specifically Chapter 5.) In that report, EPA 
determined that ash from coal gasification was Bevill exempt as a 
result of the Bevill rul that was promulgated on June 13, 1991 (54 
FR 27307). All other solid wastes generated at gasification plants, 
other than coal gasification ash, are subject to RCRA as newly 
generated wastes, and to subtitle C if they exhibit a characteristic 
of hazardous waste. Coal gasification ash retains its Bevill exempt 
status as long as the gasification facility uses feedstock that is 
comprised of greater than 50 percent virgin feedstock (i.e. coal). 
See 54 FR at 36619, September 1, 1989.

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[[Page 13689]]

F. Gasification Systems Processing Hazardous Oil-Bearing Secondary 
Materials From Petroleum Refineries

    The gasification of hazardous oil-bearing secondary materials from 
the petroleum industry is taking place only under very narrow, 
specialized exemptions. At the present time, we are aware of four 
gasification operations in the United States that engage in this 
activity. Three of the gasification systems are operated on-site at 
petroleum refineries.\13\ The fourth is an off-site gasification system 
owned and operated by the Dakota Gasification Company.\14\
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    \13\ See letter from Mr. James Childress, Executive Director, 
Gasification Technologies Council to Ms. Elaine Eby, USEPA. Re: 
Operational Gasification Systems Processing Hazardous Oil-Bearing 
Secondary Materials. January 2002.
    \14\ The Dakota Gasification Facility, located in Belluah, North 
Dakota, is a commercial operation that was constructed and designed 
with the assistance of the DOE to promote the use of gasification of 
coal for the production of fuels. This facility is currently 
processing hazardous oil-bearing secondary material from a BP Amoco 
refinery located in North Dakota under a RCRA treatment study 
approved by the State.
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VI. How Do Gasification Systems Differ From Hazardous Waste 
Treatment Units?

    In most cases, gasification systems resemble fuel manufacturing 
devices more than they resemble RCRA treatment devices. Information 
submitted to us in response to the July 1998 NODA suggests that the 
design, operation, and operational characteristics of certain 
gasification systems are significantly different from those of 
conventional RCRA treatment devices. This is because gasification 
systems are not designed and operated to treat waste. Gasification 
systems manufacture synthesis gas fuel by re-forming the organic 
compounds that exist in oil-bearing hazardous secondary materials 
through unique conversion processes that involve thermal disassociation 
and partial oxidation. The synthesized fuel is primarily composed of 
hydrogen and carbon monoxide. Gasification systems can also be 
configured to produce other gaseous or solid compounds for purposes 
other than as a fuel.
    The reformation or conversion processes occurring within 
gasification systems are continuously monitored and controlled to 
enhance conversion efficiency. As such, they require feedstock 
materials to adhere to certain specifications prior to introduction 
into the system. Feedstock materials must be analyzed to determine BTU 
value, sulfur concentrations, chlorine concentration, and ash content. 
The analytical information on the feed material is needed in order to 
control the processes that convert the organic components of the 
feedstock material into valuable products (including synthesis gas 
fuel).
    Gasification processes likewise limit and control oxygen levels to 
ensure the process reactions convert organic material to the synthesis 
gas product, and to prevent the complete (or unwanted) oxidation of the 
gaseous compounds that constitute synthesis gas. In contrast to 
gasification systems, thermal waste treatment devices (such as 
incinerators and certain industrial furnaces) process materials through 
``complete oxidation processes'' to reduce the volume and toxicity of 
the waste materials. When referring to ``complete oxidation processes'' 
that occur in thermal treatment devices, what we mean is that the 
oxidation of specific compounds in the waste material is not controlled 
to any extent other than that what is needed to fully oxidize and 
destroy the waste materials.
    Gasification systems also differ significantly from thermal waste 
treatment devices in terms of releases to the environment. As explained 
more fully below, gasification systems are not designed to and 
ordinarily do not release gases directly to the environment. 
Gasification systems are generally designed to be closed to the 
environment. The gases evolved in the partial oxidation or reactor 
phase are processed in polishing systems following the reactor that 
strip the gas of sulfur, chlorine, and particulate matter. These 
polishing systems recover some of these materials to form additional 
products such as elemental sulfur, sulfuric acid, or hydrochloric 
acid.\15\
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    \15\ The markets for these non-fuel by-products were not 
evaluated for this proposal, but many of the by-products do have 
marketable value. Non-gaseous by-products that are used in a 
production process to produce other products are not regulated by 
this proposal and are generally excluded from regulation under 40 
CFR 261.2(e)(1)(i). In some systems the stripped contaminants are 
fed back to the gasification reactor.
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    Following the polishing processes, the synthesis gas can be used in 
a number of ways: (1) Immediately as a fuel in a combustion turbine; 
(2) as a chemical intermediate in a chemical manufacturing process; or 
(3) stored for product use later. In contrast, thermal treatment 
devices (e.g., incinerators and industrial furnaces) are designed to 
release combustion off-gases to the environment as a consequence of 
normal operation.\16\ The resultant gases, which are primarily carbon 
dioxide and water, are rarely used in a manner similar to that of the 
gasification system.\17\
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    \16\ However, we note that certain types of industrial furnaces 
are designed to treat hazardous waste and extract sulfur compounds 
or halogen acids from the effluent gas stream prior to release to 
the atmosphere. These systems are generally operated to release the 
gases directly to the atmosphere after the desired compounds are 
extracted from the combustion off-gas.
    \17\ In addition to the operational differences between 
gasification systems and thermal waste treatment systems, it would 
appear that gasification systems currently in operation are being 
used in the chemical and petroleum refining industries to convert 
non-waste feedstocks into synthesis gas fuel or chemical 
intermediates required for specialty chemical manufacturing. These 
systems are relatively expensive to construct and operate and 
require a fairly large and consistent supply of carbon-based 
feedstock (e.g., coal, natural gas, petroleum coke, etc.) to produce 
synthesis gas that has economic value. The units, at least as 
presently operated, are integral components of these manufacturing 
operations. The fact that these devices can be operated in a manner 
to process materials historically classified as hazardous waste does 
not discount the fact that they are designed and operated to produce 
a product that is valuable as a fuel or chemical and that this 
appears to be their primary function.
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    Gasification systems differ significantly from hazardous waste 
treatment units. As such, we are today proposing that full RCRA 
oversight may not be warranted for the gasification of hazardous oil-
bearing secondary materials from the petroleum refining industry, as 
long as we place conditions on the activity so that it can be 
distinguished from hazardous waste treatment activities.

VII. Detailed Discussion of Today's Proposal

    Today, we are proposing to conditionally exclude hazardous oil-
bearing secondary materials generated by the petroleum refining 
industry (SIC 2911) from the definition of solid waste when the 
materials are destined to be processed in a gasification system to 
produce synthesis gas fuel and other non-fuel chemical by-products.\18\ 
To

[[Page 13690]]

ensure that each gasification system processing materials excluded 
under today's proposal is engaged in a manufacturing activity, we are 
proposing that the exclusion be subject to a set of conditions. The 
conditions specify that: (1) The system processing the hazardous oil-
bearing secondary material meets the proposed definition of a 
gasification system; (2) the synthesis gas product from the 
gasification system meets the fuel specifications promulgated in the 
``synthesis gas rule,'' \19\ which is a regulatory benchmark for 
classifying synthesis gas produced from hazardous waste as a fuel 
rather than as hazardous waste (see 40 CFR 261.38(b)); (3) the 
materials (both co-products and solid waste residuals) generated by the 
gasification system that are placed on the land do not exceed the 
nonwastewater Universal Treatment Standards (UTS) for 6 metals present 
in listed wastes generated by the petroleum refining industry; and (4) 
the excluded hazardous oil-bearing secondary materials are not 
speculatively accumulated nor placed on the land prior to insertion 
into the gasification system. Provided these conditions are met, the 
hazardous oil-bearing secondary materials from petroleum refineries 
would not be solid wastes. Similarly, the fuels or chemical by-products 
manufactured from these excluded materials would also be excluded.
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    \18\ The proposed exclusion applies only to hazardous oil-
bearing secondary materials from SIC classification 2911. While the 
Agency understands that some petroleum refineries may be integrated 
with other industrial processes exhibiting other SIC 
classifications, this exclusion is only for secondary materials 
generated by the production processes under the 2911 classification. 
However, the Agency solicits comment on whether the exclusion should 
be expanded to other hazardous secondary materials from other 
industrial operations (with other SIC classifications) when these 
operations are integrated with industrial processes under the 
primary SIC classification of 2911.
    \19\ For purposes of this preamble discussion, we are using the 
term, ``Synthesis Gas Rule'' to refer to the rulemaking that 
provided for the ``Syngas Fuel Exclusion'' (40 CFR 261.(b)). The 
entire rule can be found in 63 FR 33782, June 19,1998. Hazardous 
Waste Combustors; Revised Standards; Final Rule--Part 1: RCRA 
Comparable Fuel Exclusion; Permit Modification for Hazardous Waste 
Combustion Units: Notification of Intent to Comply; Waste 
Minimization and Pollution Prevention Criteria for Compliance 
Extensions.
---------------------------------------------------------------------------

    The exclusion would apply to materials processed in a gasification 
system operating either on site or off-site of a petroleum refinery. 
While this does differ from existing exclusions in that it would apply 
whether or not the gasification system is located at the site of the 
petroleum refinery, we believe it is appropriate to extend the on-site 
exclusion to off-site fuel manufacturing processes because gasification 
systems operate in exactly the same manner whether they are used to 
process materials into fuels on-site or off-site of a petroleum 
refinery (i.e., gasification systems operate as fuel manufacturing 
devices at any location they are operating).\20\
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    \20\ Gasification systems operating off-site of petroleum 
refineries may continue to process the materials they currently 
gasify in addition to the materials we are proposing to exclude 
without affecting the regulatory status of their device with respect 
to RCRA regulation. However, if gasification systems are processing 
hazardous wastes (i.e., hazardous materials identified or listed as 
hazardous wastes, in addition to the petroleum industry secondary 
materials we are proposing to exclude), then such devices would of 
course continue to be subject to RCRA jurisdiction under the current 
proposal.
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A. What Are the Conditions of the Exclusion?

    Today's proposed exclusion includes four conditions to ensure that 
each gasification system processing the excluded material is engaged in 
a legitimate manufacturing activity that converts the valuable 
components of the hazardous oil-bearing secondary materials into fuels, 
and into non-fuel chemical by-products, that do not contain high levels 
of non-contributing toxic components. Today's notice proposes to 
exclude hazardous oil-bearing secondary materials generated by the 
petroleum refining industry from the definition of solid waste if the 
materials are processed in a gasification system and used in a manner 
consistent with the conditions of the exclusion. The consequence of 
this exclusion would be that hazardous oil-bearing secondary materials 
are excluded from the definition of solid waste, at the point of 
generation, provided: (1) The system meets the definition of a 
gasification system; (2) the system generates a synthesis gas fuel that 
meets the specifications of exempted synthesis gas; (3) the materials 
generated by the gasification system are not placed on the land if they 
exceed the nonwastewater UTS for chromium, lead, nickel, vanadium, 
arsenic, and antimony (found at 40 CFR 268.48); and (4) the excluded 
materials are not placed on the land or speculatively accumulated prior 
to insertion into the gasification system.
1. Definition of a Gasification System
    During our review of the operation and performance of available 
gasification technologies, we determined that it is necessary to define 
the types of devices that can process (i.e., gasify) hazardous oil-
bearing secondary materials into a synthesis gas that we believe is a 
legitimate fuel. This is because there are a large number of devices 
operating in the United States that could claim to be a type of 
gasification system, but do not gasify materials in the same manner, or 
to the same extent, as the gasification systems we considered for this 
proposal. These other devices may be waste treatment devices, or 
recycling devices that process solid waste. Therefore, this first 
condition defines the types of systems that may process excluded 
hazardous oil-bearing secondary material under this exclusion in order 
to distinguish the gasification process from waste treatment, including 
incineration.
    As explained earlier, most combustion devices (e.g., incinerators) 
convert organic material into hydrogen and carbon monoxide gases at 
some point during ideal combustion processes (i.e., complete oxidation 
of organic material to water and carbon dioxide). Gasification systems 
preferentially convert the organic material into a synthesis gas 
primarily composed of carbon monoxide and hydrogen by limiting the 
oxidation reactions. Gasification systems generally accomplish this by 
regulating the organic material and oxygen being fed to the reactor 
based on feedback from continuous monitoring of temperature, pressure, 
and products of oxidation. These continuously monitored parameters 
control the extent that organic material is oxidized, and concentrates 
the metals found in the feed into a slag emitted from the reactor as a 
solid waste. Therefore, to limit the exclusion to gasification systems 
that operate as fuel manufacturing devices, as well as to distinguish 
gasification systems from treatment devices such as incinerators, 
cement kilns, and thermal desorbers, we are proposing and solicit 
comment on the following definition of a gasification system.

    Gasification system means an enclosed thermal device and associated 
gas cleaning system or systems that does not meet the definition of an 
incinerator or industrial furnace (found at Secs. 260.10), and that: 
(1) Limits oxygen concentrations in the enclosed thermal device to 
prevent the full oxidization of thermally disassociated gaseous 
compounds; (2) utilizes a gas cleanup system or systems designed to 
remove contaminants from the partially oxidized gas that do not 
contribute to its fuel value; (3) slags inorganic feed materials at 
temperatures above 2000; deg. F; (4) produces a synthesis gas; and (5) 
is equipped with monitoring devices that ensure the quality of the 
synthesis gas produced by the gasification system.

    Under this first condition, you would be required to ensure that 
your gasification system meets the definition above, in order for the 
hazardous oil-bearing secondary materials from the petroleum industry 
to be eligible for the exclusion. The purpose of this condition

[[Page 13691]]

is to ensure that the exclusion applies only to gasification systems 
designed, operated, monitored, and controlled in a manner that promotes 
the removal or conversion of toxic compounds found in the hazardous 
oil-bearing secondary materials, as well as generating a synthesis gas 
fuel. The rationale supporting this condition is consistent with the 
rationale we used in excluding recovered oil from the definition of 
solid waste. See 63 FR at 42113.
2. Synthesis Gas Fuel Specification
    The second condition of this proposed exclusion defines the 
chemical and physical specifications of a legitimate synthesis gas fuel 
product. This condition ensures that each gasification system using the 
exclusion is engaged in a legitimate fuel manufacturing activity. It 
does this by requiring you to ensure that the synthesis gas produced 
from the gasification of excluded materials meet the specifications for 
the exclusion of hazardous waste derived synthesis gas found at 40 CFR 
261.38(b). It is appropriate to apply the ``Synthesis Gas Rule'' 
specifications to synthesis gas produced from hazardous oil-bearing 
secondary materials, because we believe that synthesis gas manufactured 
from this material should not contain hazardous constituents and other 
non-contributing contaminates at concentrations greater than synthesis 
gas derived from hazardous waste. We recognize that some gasification 
systems are designed and operated to produce a synthesis gas that may 
not meet the constituent levels specified by the Synthesis Gas Rule 
because the gas is specifically manufactured for use in a specialized 
chemical manufacturing process. Therefore, the specification would 
apply only to synthesis gas actually used as a fuel. See the preamble 
discussion on ``Parameters for the Synthesis Gas Fuel Exclusion'' found 
at 63 FR 33791, June 19, 1998.
    Under this proposal, hazardous oil-bearing secondary materials 
would be excluded from the definition of solid waste at the point they 
are generated, as long as they are processed in a gasification system 
that meets our proposed definition, and handled in accordance with the 
other conditions. Since RCRA regulations do not apply to the excluded 
materials, the synthesis gas product is also not subject to RCRA 
regulations, as long as the synthesis gas produced by the gasification 
system meets as a fuel the specification levels of the synthesis gas 
exclusion.Of course, units burning the synthesis gas fuel are 
themselves potentially subject to regulation under other statutes, 
notably the Clean Air Act. Today's proposal would not affect any such 
regulation.
3. Land Placement of Products, Co-Products, and Solid Waste Residuals
    The third condition of the proposed exclusion applies to co-
products and residues generated by the gasification system that are 
recycled by being applied to the land. This condition would require 
that materials that are applied to the land must meet the nonwastewater 
Universal Treatment Standards (UTS) (40 CFR 268.48) for the following 
toxic metals: antimony, arsenic, chromium, lead, nickel, and vanadium. 
It is believed that these metals will partition with the ash into the 
slag residue generated by the process. These metals do not contribute 
to the gaseous fuel or to the gasification process. We suspect that the 
metal concentration in the residue will be comparable to or 
substantially less than the concentration of metals in the slag from 
gasifiers that process petroleum coke or coal exclusively. Data 
submitted by BP Amoco show that the metals in oil-bearing secondary 
materials do not substantially increase the total metal concentration 
normally found in the residue generated by the Dakota gasification 
facility when it is processing coal exclusively.\21\
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    \21\ Data submitted by Amoco Refining Inc, which show that 
petroleum secondary materials make a minor contribution to the total 
concentration of metals routinely found in ash from the Dakota 
Gasification facility.
---------------------------------------------------------------------------

    This third condition ensures that co-products or residues generated 
by the gasification process do not contain toxic metals with a 
potential for leaching greater than allowed by the requirements of the 
land disposal restrictions. This condition is similar to conditions 
established for hazardous waste-derived products that are used in a 
manner constituting disposal (see 40 CFR 266.20), but we chose only to 
apply the UTS limits for the metals which are known to exist in 
petroleum refinery waste.\22\
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    \22\ This condition is also similar to a condition we included 
in the exclusion for other petroleum oil-bearing secondary 
materials. There, we applied the FO37 listing to non-fuel residuals 
that are produced when oil-bearing wastes are reinserted into 
petroleum distillation and refining processes. See 63 FR at 42128.
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    This condition ensures legitimacy by applying the same land 
disposal provisions to the co-products or residuals that would have 
existed had the material not been excluded from the definition of solid 
waste, and so would eliminate an incentive to claim to be performing 
``gasification'' for the real purpose of avoiding treatment of metals 
in treatment residues that ultimately are placed on the land. The 
condition similarly would serve to ensure that the gasification of 
excluded oil-bearing hazardous secondary materials is not just a means 
of discarding waste components in the materials (which are otherwise 
listed hazardous wastes) by the eventual unrestricted placement of 
those components on the land. Finally, the proposed condition is needed 
to assure that the gasification system is operated for the production 
purpose claimed. As explained earlier, part of the operating premise of 
gasification is that it preferentially converts organic matter in 
secondary materials into fuels (or intermediates) while removing metals 
from raw synthesis gas and trapping those metals in an inert matrix. 
The proposed condition provides a means of quantifying this premise.
4. Speculative Accumulation and Storage of Excluded Materials
    The fourth condition of the proposed exclusion specifies that 
excluded hazardous oil-bearing secondary materials may not be placed on 
the land, or speculatively accumulated prior to insertion into a 
gasification system. This condition further defines gasification of 
excluded oil-bearing materials as a manufacturing activity because it 
requires that the excluded materials are handled as a valuable feed to 
the gasification system. We know of no gasification system (or for that 
matter, any refinery) which stores these materials on the land, and to 
do so would indicate that the materials are being handled as waste, not 
feedstock (since physical integrity of the ostensibly-valuable feed 
materials could no longer be assured, and there would be large-scale 
losses of the oil-bearing secondary materials due to the land 
placement). Thus, the physical characteristics of hazardous oil-bearing 
secondary materials from the petroleum industry should preclude storing 
the material in anything other than tanks or containers. This is 
because the material is generally comprised of tar-like oily substances 
that are not amenable for land storage.
    The proposed condition prohibiting speculative accumulation of the 
excluded oil-bearing secondary materials before they are inserted into 
the gasification system ensures that legitimate quantities of the waste 
material are being recycled rather than being stored to avoid 
regulation. We feel that this condition also is necessary to assure 
that recycling actually occurs, and that materials are not discarded by 
being stored for extended periods. Furthermore, this condition is 
consistent with the condition that we

[[Page 13692]]

adopted for excluded oil-bearing residuals returned to refinery 
processes. See 60 FR 57752.

B. What Are the Proposed Recordkeeping and Reporting Requirements?

    There are no specific recordkeeping and reporting requirements 
associated with this proposal. However, we are seeking comment whether 
any records and reporting are necessary in addition to the current 
documentation requirement associated with 40 CFR 261.2(f) for materials 
that would be excluded from the definition of solid waste under today's 
notice. 40 CFR 261.2(f) does not contain specific record keeping 
requirements but it does require the respondent to bear the burden of 
showing, through appropriate documentation, that the excluded material 
is being processed in a manner that meets the conditions in the claimed 
exclusion. We offer this information as a reminder and are not 
reopening this provision for comment.
    In today's notice, we are proposing to exclude hazardous oil-
bearing secondary materials generated from the petroleum refinery 
industry (SIC 2911) that are destined for gasification whether or not 
the gasification system is located at a refinery. We note that allowing 
the secondary petroleum streams to go to facilities outside the 
petroleum refining industry is somewhat different than the structure of 
40 CFR 261.4(a)(12)(i), which the Agency has used as a model for 
today's proposal. 40 CFR 261.4(a)(12)(i) excludes from RCRA 
jurisdiction, under certain conditions, oil-bearing secondary materials 
generated by petroleum refineries when the materials are re-inserted 
into the petroleum refining process (either at the refinery generating 
the secondary material or at another off-site petroleum refinery, as 
long as the materials are shipped directly). 40 CFR 261.4(a)(12)(i) 
does not specify recordkeeping requirements, except 40 CFR 261.2(f) 
applies to respondents claiming the exclusion.
    In today's proposal, however, we believe that excluding materials 
processed in gasification systems operating independent (or off-site) 
of petroleum refineries is appropriate because gasification is a 
process employed by petroleum refineries to upgrade low value organic 
material into fuels, and the purpose and operation of the system 
remains the same whether the system is operated at the same location 
the oil-bearing materials are generated or elsewhere. Since today's 
proposal would be somewhat more expansive than the exclusion at 40 CFR 
261.4(a)(12)(i), we are requesting comment on whether further 
clarification of recordkeeping and reporting requirements is necessary 
in addition to the 40 CFR 261.2(f) documentation requirement to ensure 
that excluded materials are appropriately processed. The purpose of 
recordkeeping, recording and documentation would be to: (1) Ensure that 
the excluded materials are indeed fed to a gasification facility; (2) 
the materials are handled appropriately prior to introduction to the 
gasification system; (3) the synthesis gas fuel ultimately produced 
meets the synthesis gas specifications; (4) the inorganic residues 
produced by the gasification system that are placed on the land do not 
exceed the nonwastewater UTS for metals found in the input refinery 
material fed to the gasification system; and (5) the residue does not 
exhibit a hazardous waste characteristic under subpart C, part 261. One 
proposed rule, ``Requirements for Zinc Fertilizers Made From Recycled 
Hazardous Secondary Materials'' (See 65 FR 70954, November 28, 2000) 
provides an example of additional recordkeeping and reporting 
requirements that could be used to verify that the conditions of an 
exclusion are met.
    EPA is interested in obtaining comments on what specific records 
would be necessary to document whether: (1) The synthesis gas generated 
from a gasification system, using excluded secondary materials, meets 
the synthesis gas fuel specification under 40 CFR 261.38(b); (2) the 
residue generated from the gasification system meets the UTS levels in 
40 CFR 268.48 for specific inorganic metals; and (3) the residue 
generated from the gasification system fails to exhibit a hazardous 
waste characteristic as defined in part 261, subpart C. We are also 
interested in receiving comments that explain the different types of 
information petroleum refinery operators currently keep to demonstrate 
compliance with other solid waste exclusions (such as 40 CFR 
261.(a)(12)(i)) that rely on 40 CFR 261.2(f) to demonstrate compliance 
with the conditions of the exclusions and whether such information is 
routinely maintained as a type of industry practice.

C. How Do We Ensure Excluded Material Is Processed in a Gasification 
System?

    As with other exclusions and exemptions from the definition of 
solid waste, the person claiming the exclusion must be able to produce 
whatever documentation is necessary to demonstrate that the material is 
excluded from regulation (see Sec. 261.2(f)). EPA recommends that to 
make this demonstration, petroleum refineries document the amount of 
secondary material excluded, and the location that these materials are 
processed in a gasification system, as well as maintaining 
documentation to demonstrate compliance with the enumerated conditions 
of today's proposed exclusion.

D. Are We Concerned About Volatile Metals in the Excluded Material?

    We are aware that certain metals, which can be found in low 
concentrations in petroleum refining secondary materials, can be 
processed by a gasification system and end up in the product synthesis 
gas. The metals of most concern, based on their inherent properties, 
are lead and mercury; however, based on data we received from the 
petroleum refining industry, we do not believe that synthesis gas 
manufactured from oil-bearing materials will contain sufficient 
concentrations of these metals to create an emissions hazard if the 
fuel is burned for energy recovery. Nevertheless, because there is a 
potential for volatile metals to partition to the synthesis gas 
product, we are proposing that the synthesis gas must meet the 
specifications of 40 CFR 261.38(b) if used as a fuel, which limits the 
concentration of those metals to levels we deemed appropriate for 
hazardous waste-derived synthesis gas excluded from RCRA regulation. As 
explained earlier, the fuel specification serves as a means to ensure 
that the process produces a fuel product rather than a means to dispose 
of waste.

E. Are We Concerned About Dioxin Emissions From the Processing of 
Excluded Material?

    In contrast to devices that burn organic compounds, gasification 
systems are designed to promote the thermal decomposition of organic-
containing compounds and limit the formation of compounds with a 
greater molecular weight than methane. This design characteristic 
limits the formation of dioxin pre-cursors in the high temperature 
reactor. Formation in the PM control units is controlled by the lack of 
dioxin precursors, the lack of particulate matter, and the lack of a 
favorable temperature profile. Analytical data submitted by Texaco and 
Dow support the contention that dioxin is not generated during 
synthesis gas production. The reader is referred to the docket for 
additional information.
    In addition to the theoretical arguments and analytical data 
supporting the contention that synthesis

[[Page 13693]]

gas does not contain dioxin, we also limit the amount of dioxin that 
can exist in synthesis gas fuel directly through the application of the 
synthesis gas fuel specification found at 40 CFR 261.38(b). The 
synthesis gas specifications that apply as a condition of the exclusion 
do not allow significant concentrations of dioxin to be present in the 
product gas. These factors, as well as analytical results that show low 
concentrations of dioxin in the produced synthesis gas, lead us to 
conclude that controls to limit the formation of dioxin in the 
synthesis gas are unnecessary to propose. Additionally, we recognize 
that the down stream applications of the synthesis gas will also 
control the levels of dioxin that may be released to the atmosphere or 
to other products manufactured from the synthesis gas. Specifically, we 
believe that any dioxin compounds that exist (at low concentrations) in 
the synthesis gas will be appropriately controlled under the applicable 
MACT rules if the synthesis gas is burned to produce electricity in a 
gas turbine. Therefore, we believe that concerns regarding dioxin 
formation are adequately addressed in today's proposal and we are not 
proposing any additional requirements to specifically limit dioxin 
emissions as a result of downstream uses of the synthesis gas fuel.

VIII. Other Hazardous Secondary Materials That Could Also Be 
Conditionally Excluded When Processed in a Gasification System

    Today's proposed exclusion from the definition of solid waste is 
based largely on two central themes. First, gasification is a 
legitimate manufacturing process for processing secondary materials in 
an efficient and environmentally protective manner and is better viewed 
as a manufacturing activity rather than waste recycling. Second, 
hazardous oil bearing secondary materials from the petroleum refining 
industry (SIC 2911) are especially appropriate for use in such units. 
With respect to these points, EPA is soliciting comment on expanding 
the exclusion to allow for other hazardous secondary materials to be 
conditionally excluded from the definition of solid waste if they are 
processed in a gasification system.

A. What Are the Environmental Benefits of a Broader Exclusion?

    The gasification of hazardous waste can be viewed as an innovative 
extension of the conventional fuels gasification technology for 
synthesis gas. The gasification of hazardous secondary materials (i.e., 
hazardous waste), in this manufacturing application, has the potential 
to significantly reduce pollution to the environment by allowing for 
the continued processing of hydrocarbon materials that would otherwise 
be treated and/or land disposed.\23\ The downstream uses of the 
products generated by the gasification process also have environmental 
benefit. When the synthesis gas is burned for energy recovery it 
displaces fossil fuels that would be used for the same energy 
production. Plus, it displaces the energy used to liberate, transport, 
and prepare the fossil fuels for use, as well as the pollution that 
results from removing, transporting and processing the fossil fuels. 
When synthesis gas is used as a feedstock for the manufacture of 
chemicals such as acetic acid, acetic anhydride, oxoalcohols, butanol, 
methanol, ammonia, and hydrogen, it displaces other feedstock that take 
energy to produce and prepare for manufacturing. Furthermore, when 
other non-fuel co-products are manufactured in the gasification system, 
e.g., elemental sulfur, sulfuric acid, chlorine, hydrochloric acid and 
ammonia, the co-products displace similar products manufactured 
conventionally. This reduces pollution to the environment associated 
with the conventional manufacturing processes that do not use secondary 
materials as a component of the feed.
---------------------------------------------------------------------------

    \23\ U.S. Environmental Protection Agency. Texaco Gasification 
Process--Innovative Technology Evaluation Report. July 1995. EPA/
540/R-94/514.
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B. What Is the Regulatory Status of a Gasification System?

    Under existing regulations, hazardous secondary materials that are 
processed in a gasification system to produce synthesis gas and is used 
or re-used in an industrial process to manufacture legitimate products 
are not subject to RCRA jurisdiction through the provisions of 40 CFR 
261.2(e)(1)(i). This provision excludes materials from the definition 
of solid waste if the materials are ``used or re-used as ingredients in 
an industrial process to make a product, provided the materials are not 
being reclaimed.'' As a result, gasification systems that manufacture 
synthesis gas, used exclusively in other on-going manufacturing 
processes, are currently not subject to RCRA jurisdiction because the 
materials being processed by the system are never solid wastes. 
Conversely, hazardous secondary materials that are processed in a 
gasification system to produce synthesis gas that is used as a fuel 
remain regulated by RCRA in accordance with 40 CFR 261.2(c)(2) and the 
applicable regulatory provisions in Secs. 261.6 and 266.100 et seq. See 
63 FR at 33791 (June 19, 1998); see also Sec. 261.2(e)(2)(ii), which 
says that the exclusion for secondary materials being used or reused 
does not apply to secondary materials that are burned for energy 
recovery, used to produce fuels, or contained in fuels. Thus, 
gasification systems that produce synthesis gas used as a fuel are 
subject to RCRA jurisdiction because the materials being processed are 
solid wastes (assuming that the secondary materials being processed are 
also hazardous wastes).
    In the past, we have stated that gasification systems processing 
hazardous waste materials are exempt from RCRA permitting because they 
are engaged in recycling (assuming that legitimate recycling is 
occurring).\24\ Designating gasification systems as recycling units 
exempts them from RCRA permitting, but it does not exclude the material 
being processed from RCRA regulation. This results in the synthesis gas 
fuel being designated as a waste-derived fuel and would require that 
all parties comply with the regulations that apply to the generation, 
transportation, storage and handling of the hazardous waste materials.
---------------------------------------------------------------------------

    \24\ See OSWER Directives 9441.1995(18), and 9432.1996(01).
---------------------------------------------------------------------------

    The hazardous waste-derived synthesis gas fuel can be excluded from 
regulation under the provisions of the synthesis gas exclusion found at 
40 CFR 261.38(b). This section provides an exclusion from the 
definition of solid waste for synthesis gas fuels that meet the 
composition specifications of the provision. This exclusion applies at 
the point the fuel is produced. We recognize that this results in a 
situation where under one use, the product synthesis gas (i.e., as a 
chemical intermediate), is excluded, but under a different use (i.e., 
as a fuel) the product synthesis gas is regulated. This is problematic 
considering the fact that the synthesis gas product remains the same 
whether it's used as an ingredient in an industrial process or as fuel, 
and the device itself is unregulated by RCRA in either case. 
Furthermore, available information suggests that chemical industry 
gasification systems may not be dedicated to only one use for the 
synthesis gas, i.e., gasification systems may produce synthesis gas 
both for the manufacture of chemical products and as a fuel.\25\ See 
the ``Comment Response

[[Page 13694]]

Document'' in Docket Number F-98-RCSF-FFFFF for additional information 
on this point.
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    \25\ See letter from Mr. Dan Pearson, Executive Director, Texas 
Natural Resource Conservation Commission to Mr. Randall A. Jones, 
Director, Regulatory Affairs, Molten Metals Technology, Re: Proposed 
Catalytic Extraction Processing (CEP) Facility--Bay City, Texas. 
February 27, 1996.
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C. What Are the Conditions of the Broader Exclusion?

    In today's notice, we are also requesting comment on a proposed 
expansion of the conditional exclusion from the definition of solid 
waste (discussed earlier in today's notice) to additional hazardous 
secondary materials.\26\ Under this alternative proposal, one 
exclusion, under a set of expanded conditions, could be promulgated for 
hazardous secondary materials, including those from the petroleum 
industry, destined for processing in a gasification system to produce 
synthesis gas fuel and other chemical products. We believe that because 
of the unique properties of synthesis gas and the operational 
capabilities of gasification systems, as well as its environmental 
benefits, it is appropriate to suggest and solicit comment on 
broadening the exclusion in this way.
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    \26\ Information available to the Agency suggests that there are 
other secondary materials amenable to gasification. For example, 
municipal waste and sewage sludge, contaminated soil, tires, and 
coal ash may be gasified to produce synthesis gas and other valuable 
products. Used oil, is another example of a material that the Agency 
believes can be processed in a gasification system to produce 
synthesis gas (i.e., fuel). The reader is referred to the docket 
supporting this proposal for additional information.
---------------------------------------------------------------------------

    To expand the exclusion to address additional hazardous secondary 
materials, three modifications to the current proposal could be made. 
First, in the third condition of the proposed exclusion, i.e., land 
placement of products, co-products, and solid waste residuals, the 
number of hazardous inorganic constituents required to meet UTS would 
increase from six to fifteen. The addition of nine hazardous inorganic 
constituents, captures the entire suite of inorganic constituents 
regulated by RCRA in 40 CFR 268.48 and further ensures that the co-
products or residues generated by the gasification system do not 
contain any toxic inorganics with a potential for leaching greater than 
allowed by the requirements of the land disposal restrictions. These 
additional constituents are all toxic metals, except for cyanide.
    As mentioned previously, we have data showing metals will partition 
with the ash into the slag residue generated by the gasification 
process and be effectively immobilized. As we have discussed earlier, 
these metal constituents do not contribute to the gaseous fuel or to 
the gasification process. We are also proposing to add cyanide (both 
total and amenable) to the array of hazardous inorganic constituents 
being regulated. It is believed that cyanide will effectively 
dissociate in the gasification process contributing to the production 
of the synthesis gas. As such, there should not be any measurable 
quantities of cyanide in the co-products or residuals. The expansion of 
this condition to include all the RCRA toxic inorganics ensures that 
the gasification system is being operated for the production purpose 
claimed. As previously discussed, part of the operating premise of 
gasification is that it preferentially converts organic matter in 
secondary materials into fuels (or intermediates) while removing metals 
from raw synthesis gas and immobilizing those metals in an inert 
matrix. This condition is a means of quantifying this premise.
    The second modification would be the addition of a fifth condition. 
This condition would require each hazardous secondary material 
processed in a gasification system to contain greater than 20% by 
weight total organic carbon (TOC). The addition of this condition 
ensures that every secondary material processed in a gasification 
system contributes to the manufacture of the synthesis gas and so 
eliminates an incentive to claim to be performing ``gasification'' for 
the real purpose of avoiding hazardous waste treatment. The 20% TOC 
threshold approximates the lowest value material known to be 
effectively processed in a gasification system for synthesis fuel 
production. The 20% TOC threshold represents the level which we believe 
is reasonable both economically and technologically to ensure 
legitimate manufacturing by the gasification system. The Agency 
recognizes that by including such a condition, it could restrict 
certain hazardous secondary material from being processed in a 
gasification system under the exclusion. However, without a complete 
understanding of these activities and knowledge of the types of 
hazardous secondary materials that could be processed through such an 
operation, we believe that with this broader exclusion, a TOC threshold 
of 20% is a necessary condition to ensure that legitimate manufacturing 
activities are taking place. Unlike hazardous oil-bearing secondary 
materials from the petroleum refining industry, little information 
exists that provides a comprehensive assessment of gasification's 
performance on other RCRA hazardous waste. (See: A Comparison of 
Gasification and Incineration of Hazardous Waste--Final Report. United 
States Department of Energy. DCN 99.803931.02. March 30, 2000). 
However, the Agency specifically solicits comment on the 
appropriateness of requiring each hazardous secondary material to have 
a 20% by weight TOC content. In addition, the Agency also requests 
comment on alternative indicators, other than TOC, that could be used 
to ensure that hazardous secondary materials are used legitimately in 
gasification systems to manufacture synthesis gas fuel and other 
products.
    The third or final modification to the exclusion would be a 
prohibition on the use of any mercury-containing hazardous secondary 
material into the gasification system for the manufacturing of 
synthesis gas. As discussed previously in the preamble (See section V. 
D--What Air Emissions Result From Gasification Systems?), the Agency is 
concerned with the potential for highly volatile metals, in particular 
mercury, to be emitted out the stack of devices (i.e., turbines) firing 
synthesis gas produced by a gasification system. As discussed earlier, 
this is not a concern, for the petroleum refining exclusion being 
proposed today, because hazardous oil-bearing secondary materials from 
the petroleum refining industry are not expected to contain significant 
quantities of mercury. However, the Agency is concerned that the 
specification for the synthesis gas exclusion (see 40 CFR 261.38(b)) 
which requires that the synthesis gas contain less than 1 part per 
million by volume of each RCRA metal, including mercury, may not 
represent the concentration of metals that realistically exists in 
synthesis gas derived from hazardous waste.\27\ To that end, the Agency 
proposes a sixth condition to the broader exclusion--a prohibition on 
the use of hazardous secondary materials containing mercury. This 
prohibition would exclude, from processing in a gasification system, 
any hazardous waste which exhibits the characteristic of mercury and 
any hazardous waste for which mercury was a basis for listing under 40 
CFR part 261, appendix VII.

[[Page 13695]]

This would include the RCRA hazardous wastes D009, K071, K106, F039, 
U151, P065 and P092. The Agency also solicits comment on expanding this 
prohibition to include other highly volatile metals.
---------------------------------------------------------------------------

    \27\ The Agency conducted a preliminary analysis on determining 
how much mercury can potentially be emitted from synthesis gas that 
is combusted in a turbine if the synthesis gas contains mercury at 
the 1ppmv specification level. It was determined that approximately 
1.04 tons of mercury could potentially be released from the use of 1 
trillion BTU of synthesis gas at the specification levels. If you 
would compare this to coal for a similar 1 trillion BTU with a 
concentration of 0.1ppmw of mercury, 0.004 tons of mercury could be 
potentially released.
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    With these modifications, a broader exclusion is being suggested, 
which the Agency believes should ensure that the processing of excluded 
material(s) in a gasification system is a legitimate fuel manufacturing 
activity that converts components of hazardous carbonaceous material 
into fuel and into non-fuel chemical by-products without containing 
high levels of non-contributing toxic components. As such, the option 
discussed here conditionally excludes hazardous secondary materials 
from the definition of solid waste, at the point they are generated, 
when processed in a gasification system provided: (1) Each hazardous 
secondary material processed in the system contains greater than 20% by 
weight total organic carbon; (2) the system does not process any 
hazardous waste which exhibits the characteristic of mercury and any 
hazardous waste for which mercury is a basis for listing under 40 CFR 
part 261, appendix VII as hazardous secondary materials; (3) the system 
meets the definition of a gasification system; (4) the system generates 
a synthesis gas fuel that meets the specifications of exempted 
synthesis gas; (5) the materials generated by the gasification system 
are not placed on the land if they exceed the nonwastewater UTS for 
antimony, arsenic, barium, beryllium, cadmium, chromium (total), 
cyanides (total), cyanides (amenable), lead, mercury, nickel, selenium, 
silver, thallium, and vanadium; and (6) the excluded materials are not 
placed on the land or speculatively accumulated prior to insertion into 
the gasification system.
    While the Agency requests comment on all aspects of this proposed 
rulemaking, we are specifically soliciting comment, information, and 
data on:
     The performance of gasification on other hazardous 
secondary materials (that are currently hazardous waste) known to 
contain low concentrations of metals, e.g., hazardous secondary 
materials that are generated outside SIC 2911, such as spent potliner 
from the primary aluminum industry (K088).
     The performance of gasification on certain hazardous 
secondary materials that contain high concentrations of non-
contributing components (namely metals or halides).
     Potential partitioning of metals to the product synthesis 
gas and their subsequent release during the combustion of the synthesis 
gas in turbines to produce electricity or steam.\28\
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    \28\ To address this issue, we are requesting comment on a 
number of approaches to revise the synthesis gas specifications 
found at 40 CFR 261.38(b). In particular, the Agency is interested 
in soliciting comment on the specifications for highly volatile 
metals. The approaches we are considering can be found in the docket 
of today's proposal entitled Options to Revise the Synthesis Gas 
Specification. We specifically request comment on this document.
---------------------------------------------------------------------------

     Whether the Agency should develop a set of general 
criteria for the types of hazardous secondary materials that would be 
appropriate for gasification, and what those criteria might be.\29\
---------------------------------------------------------------------------

    \29\ States could then develop procedures for identifying 
specific waste streams that are excluded, using either rulemaking 
procedures or a variance process. A variance process might be 
similar to the provisions already found at 40 CFR 260.31 for certain 
exclusions from the definition of solid waste.
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     Whether the Agency should require specific design and 
operating conditions for all components of the gasification systems, 
including the gas cleanup or polishing systems and the secondary 
product recovery systems and what they would be.
     The market for building and operating gasification systems 
in the future, including future capacity for gasification.
     The market for synthesis gas and other products from 
gasification, including non-fuel products recovered in the process.
    Finally, we recognize that in order to achieve the benefits of 
gasification, secondary materials must be safely transported and 
handled prior to delivery at the gasification facility, and actually 
delivered for use as a feedstock to the facilities. We note that a 
number of factors work towards safe delivery, including Department of 
Transportation regulations for hazardous materials, and the threat of 
legal liabilities under the Comprehensive Environmental Response, 
Compensation, and Liability Act (CERCLA) for spilled or disposed 
hazardous materials. Further, there are currently only a very few 
gasification facilities that have indicated any interest in accepting 
hazardous secondary materials, and they have indicated they must have 
contracts for acceptance of materials, including technical 
specifications that limit the types of materials that the particular 
unit may accept as a feedstock. Also, as explained in more detail in 
the next section, current regulation requires a person claiming an 
exclusion to produce appropriate documentation to show he or she 
actually meets the terms of the exclusion, which may mean, for example, 
producing contracts with a gasification facility, records of shipment 
and delivery of materials to the gasification system.
    The RCRA hazardous waste universe is broad with over 18,000 large 
quantity generators and many more small quantity generators. Concerns 
have been raised that generators, perhaps working with waste brokers, 
may falsely claim to be sending material to gasification systems for 
processing as a feedstock, when, in fact, they are simply trying to 
evade regulation. Therefore, the Agency is specifically seeking comment 
(as we note in the next section) on whether some sort of mechanism, 
beyond current regulations, should be imposed to ensure that these 
secondary materials arrive at the gasification facility and are used as 
feedstock. Also, we request comment on whether an exclusion should 
apply when brokers are involved, and if so, whether the exclusion 
should apply in that case beginning only when the material is shipped 
from the broker to the gasification facility (i.e., the broker would be 
regulated under the RCRA rules).
    In any event, should improper management occur, despite the factors 
described above, the exclusion proposed today would not apply and 
parties would be subject to enforcement action, possibly leading to 
criminal penalties. We seek comment on the checks and balances 
described above and whether they adequately address the concerns over 
possible improper use of the exclusion.

D. What Are the Proposed Recordkeeping and Reporting Requirements for 
This Broader Exclusion?

    As with the petroleum refining conditional exclusion previously 
discussed in this preamble, there are no specific recordkeeping and 
reporting requirements specifically associated with this broader 
conditional exclusion. However, we are seeking comment as to whether 
any records and/or reporting are necessary in addition to the current 
documentation requirement associated with 40 CFR 261.2(f) for materials 
that would be excluded from the definition of solid waste. 40 CFR 
261.2(f) does not contain specific recordkeeping requirements but it 
does require the respondent to bear the burden of showing, through 
appropriate documentation, that the excluded material is being 
processed in a manner that meets the conditions in the claimed 
exclusion. We offer this information again as a reminder and are not 
reopening this provision for comment.

[[Page 13696]]

    In this broader exclusion, we are proposing to exclude hazardous 
secondary materials, meeting certain conditions, from the definition of 
solid waste whether the gasification system is located on-site or off-
site. We again note that allowing the secondary streams to go to 
facilities off-site is somewhat different than the structure of 40 CFR 
261.4(a)(12)(i), which the Agency has used as a model for today's 
proposal. 40 CFR 261.4(a)(12)(i) does not specify recordkeeping 
requirements, except 40 CFR 261.2(f) applies to respondents claiming 
the exclusion.
    In this broader exclusion, however, we believe that excluding 
materials processed in gasification systems operating independent (or 
off-site) is appropriate because gasification is a process employed by 
industry to manufacture synthesis gas. The purpose and operation of the 
system remains the same whether the system is operated at the same 
location that the secondary materials are generated or elsewhere. As 
with the petroleum refining conditional exclusion being proposed today, 
we are again requesting comment on whether further clarification of 
recordkeeping and reporting requirements is necessary in addition to 
the 40 CFR 261.2(f) documentation requirement to ensure that excluded 
materials are appropriately processed. The purpose of recordkeeping, 
recording and documentation would be to ensure: (1) That the excluded 
materials are indeed fed to a gasification facility; (2) each hazardous 
secondary materials has a TOC content of at least 20%; (3) no mercury-
containing hazardous wastes are processed in the gasification system; 
(4) the materials are handled appropriately prior to introduction to 
the gasification system; (5) the synthesis gas fuel ultimately produced 
meets the synthesis gas specifications; (6) the inorganic residues 
produced by the gasification system that are placed on the land do not 
exceed the nonwastewater UTS for the inorganic constituents found in 40 
CFR 268.48; and (7) the residue does not exhibit a hazardous waste 
characteristic under subpart C, part 261. As mentioned previously, the 
proposed rule, ``Requirements for Zinc Fertilizers Made From Recycled 
Hazardous Secondary Materials'' (See 65 FR 70954, November 28, 2000) 
provides an example of additional recordkeeping and reporting 
requirements that could be used to verify that the conditions of an 
exclusion are met.
    EPA is interested in obtaining comments on what specific records 
would be necessary to document whether: (1) The synthesis gas generated 
from a gasification system, using excluded secondary materials, meets 
the synthesis gas fuel specification under 40 CFR 261.38(b); (2) the 
residue generated from the gasification system meets the UTS levels in 
40 CFR 268.48 for specific inorganic metals; and (3) the residue 
generated from the gasification system fails to exhibit a hazardous 
waste characteristic as defined in part 261, subpart C. We are also 
interested in receiving comments that explain the different types of 
information industry operators currently keep to demonstrate compliance 
with other solid waste exclusions (such as 40 CFR 261.(a)(12)(i)) that 
rely on 40 CFR 261.2(f) to demonstrate compliance with the conditions 
of the exclusions and whether such information is routinely maintained 
as a type of industry practice.

IX. State Authorization

A. Statutory Authority

    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer the RCRA hazardous waste program within the State. See 40 
CFR part 271 for the overall standards and requirements for 
authorization. Following authorization, the State requirements 
authorized by EPA apply in lieu of equivalent Federal requirements and 
become Federally enforceable as requirements of RCRA. EPA maintains 
independent authority to bring enforcement actions under RCRA sections 
3007, 3008, 3013, and 7003. Authorized States also have independent 
authority to bring enforcement actions under State law. A State may 
receive authorization by following the approval process described under 
40 CFR part part 271.
    After a State receives initial authorization, new Federal 
requirements promulgated under RCRA authority existing prior to the 
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that 
State until the State adopts and receives authorization for equivalent 
State requirements. The State must adopt such requirements to maintain 
authorization.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), new 
Federal requirements and prohibitions imposed pursuant to HSWA 
provisions take effect in authorized States at the same time that they 
take effect in unauthorized States. Although authorized States are 
still required to update their hazardous waste programs to remain 
equivalent to the Federal program, EPA carries out HSWA requirements 
and prohibitions in authorized States, including the issuance of new 
permits implementing those requirements, until EPA authorizes the State 
to do so. Authorized States are required to modify their programs only 
when EPA promulgates Federal requirements that are more stringent or 
broader in scope than existing Federal requirements. RCRA section 3009 
allows the States to impose standards more stringent than those in the 
Federal program. See also 40 CFR 271.1(i). Therefore, authorized States 
are not required to adopt Federal regulations, both HSWA and non-HSWA, 
that are considered less stringent.

B. Effect on State Authorization

    Today's proposal would be promulgated pursuant to non-HSWA 
authority, and contains provisions that are less stringent than the 
current Federal program. The conditional exclusion for hazardous waste 
processed in a gasification system would be less stringent. 
Consequently, States would not be required to adopt the proposed 
exclusion as a condition of authorization of their hazardous waste 
programs.

X. Administrative Assessments

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether a regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect, in a 
material way, the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities; (2) create serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients; or (4) raise novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in the Executive Order.
    Pursuant to the terms of Executive Order 12866, it has been 
determined that this rule is a ``significant regulatory action'' 
because of novel legal or policy issues. As such, this action was 
submitted for OMB review. Changes made in response to OMB suggestions 
or

[[Page 13697]]

recommendations will be documented in the public record.
    Implementation of this rule may result in considerable positive 
economic impacts and positive net benefits. Benefits derive from cost 
savings and resource conservation, and potential environmental quality 
improvements. There are no costs associated with this rulemaking, 
outside of the costs of regulatory development.

Economic Impacts

    The proposal discusses limiting the exclusion to facilities in the 
petroleum refining industry, defined under the Census Bureaus's 
Standard Industrial Classification code 2911. This industry includes 
the production of petroleum products through distillation, 
fractionation, and/or cracking of crude oil and unfinished petroleum 
derivatives. Total 1999 employment in the sector was 63,500 and the 
value of products estimated at $170 billion.
    Data submitted to EPA in Biennial Reports shows 172 refineries 
generated between 7 and 10 million tons of hazardous waste in 1997. 
These refineries are currently treating and disposing of their wastes 
in compliance with RCRA Subtitle C requirements for management, 
treatment, and disposal. We estimate that approximately 20-25% of this 
waste is being recycled to petroleum cokers. Some waste is land 
disposed. Much of the remaining waste is currently used for fuel (at an 
average cost of $75 per ton) or incinerated (which may cost between 
$320 and $730 for liquids, sludges, and solids that are not severely 
contaminated). Disposal of treatment residuals adds another $60-130 per 
ton to waste management costs. The American Petroleum Institute has 
estimated that refineries spent a total of $210 million in 1999 for 
waste management.
    Significant uncertainties make it difficult to estimate the impacts 
of this rulemaking. Because so few facilities are gasifying hazardous 
wastes, there is not a robust body of data on the operational 
characteristics of the devices with these feedstocks. We do not have 
good information on the proportion of these secondary materials that 
could efficiently serve as supplements to the primary feedstocks of 
coal and petroleum coke, nor do we have a clear idea of the types of 
wastes that might be amenable to the process; therefore we are 
requesting comment on these issue with this proposal.
    In addition, we believe that an exclusion for all refinery wastes 
would foster competition in the market for these secondary materials. 
Since these materials are replacing (to some extent) other feedstocks 
for the gasification system, tipping fees for these materials could be 
charged. We have not attempted to model this market, nor determine 
supply and demand or prices. It is clear, however, that revenue streams 
from tipping fees would be bounded by current management costs.
    EPA is aware of four refineries who are currently gasifying some 
residuals; all refineries are eligible to take advantage of this 
exclusion. It does seem likely that other refiners would be interested 
in reducing their waste management costs by sending wastes to 
gasification systems, whether to on-site captive facilities or to off-
site gasification facilities. Similarly, these units should be eager to 
gain tipping fees for feedstocks. Therefore, transportation costs and 
the technical specification requirements for gasification feedstocks 
are likely to be the chief limiting factors in moving petroleum wastes 
into these systems. Within those constraints, this proposal could lead 
to a substantial reduction in that $210 million spent by refineries on 
waste management. Concomitantly, gasifiers would receive economic 
gains, with losses to the hazardous waste treatment and disposal 
industry.

Costs and Benefits

    Costs associated with this rule are expected to be minimal, 
including time to read the rule, residual (i.e., slag) testing and 
other tasks to meet the conditions. Losses to the hazardous waste 
treatment and disposal industry are expected to constitute transfers to 
generators and gasification owner/operators; although these may be 
significant impacts, they are not true economic costs. Therefore, the 
direction of social benefits from this proposal can only be positive. 
These uncertainties and assumptions, therefore, do not affect the 
Agency's assessment of positive net benefits stemming from this rule; 
they only affect the magnitude of that net benefit.

Benefits From This Rule Are Likely To Include

    Cost savings: Savings in treatment and disposal costs for wastes. 
The magnitude of these savings is difficult to project, but the upper 
bound would be the $210 million that refineries are currently spending 
on waste management. Depending on how markets and prices develop, this 
rule could also result in reduced costs of electricity, and reduced 
costs for chemical intermediates that gasification systems produce. In 
addition, both generators of refinery wastes and Federal/state RCRA 
regulating agencies are expected to save administrative burden and 
costs because of this regulatory change.
    Resource conservation benefits: We project that this rule will 
facilitate gasifiers in substituting secondary materials (formerly 
disposed as wastes) for coal. To the extent that this rule induces 
power generators to burn synthesis gas instead of coal, there is the 
potential for additional resource conservation benefits. Potential 
environmental benefits exist if that substitution takes place, since 
synthesis gas is a much cleaner fuel than coal and produces less 
harmful emissions.
    More detail on costs and benefits of the rulemaking are provided in 
the memorandum entitled, Regulatory Impacts of Proposed Exclusions of 
Petroleum Refinery Wastes, which accompanies this proposal.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the proposed rule on small entities.'' 5 U.S.C. 603 
and 604. Thus, an agency may certify that a rule will not have a

[[Page 13698]]

significant economic impact on a substantial number of small entities 
if the rule relieves regulatory burden, or otherwise has a positive 
economic effect on all of the small entities subject to the rule. This 
proposal is de-regulatory in nature. The primary industry affected by 
this rule is the petroleum refining industry, and it will not cause 
adverse effects to this industry. We have therefore concluded that 
today's proposed rule will relieve regulatory burden for all small 
entities. We continue to be interested in the potential impacts of the 
proposed rule on small entities and welcome comments on issues related 
to such impacts.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal Agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
must prepare a written analysis, including a cost-benefit analysis, for 
proposed and final rules with ``Federal mandates'' that may result in 
expenditures to State, local, and tribal governments, in the aggregate, 
or to the private sector, of $100 million or more in any one year. If a 
written statement is needed, section 205 of the UMRA generally requires 
EPA to identify and consider a reasonable number of regulatory 
alternatives. Under section 205, EPA must adopt the least costly, most 
cost-effective or least burdensome alternative that achieves the 
objectives of the rule, unless the Administrator publishes with the 
final rule an explanation why that alternative was not adopted. The 
provisions of section 205 do not apply when they are inconsistent with 
applicable law.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of UMRA) for State, local, or tribal 
governments or the private sector. This is because today's proposed 
rule is de-regulatory and imposes no enforceable duty on any State, 
local or tribal governments or the private sector. Thus, today's rule 
is not subject to the requirements of sections 202, 204 and 205 of 
UMRA.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including tribal 
governments, it must have developed under section 203 of UMRA a small 
government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements. EPA has determined that 
this rule will not significantly or uniquely affect small governments. 
This is because today's proposed rule is de-regulatory and imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector. Today's rule is not, therefore, subject to the 
requirements of section 203 of UMRA.

D. Federalism--Applicability of Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This is because today's proposed 
rule is de-regulatory and imposes no enforceable duty on any State, 
local or tribal governments or the private sector. Thus, Executive 
Order 13132 does not apply to this rule.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

E. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This is because today's proposed rule is de-regulatory and imposes no 
enforceable duty on any State, local or tribal governments or the 
private sector. Thus, Executive Order 13175 does not apply to this 
rule.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits additional comment on this proposed rule from 
tribal officials.

F. Executive Order 13045: Protection of Children from Environmental 
Risks and Safety Risks

    The Executive Order 13045, entitled ``Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997) applies to any rule that EPA determines (1) is ``economically 
significant'' as defined under Executive Order 12866, and (2) the 
environmental health or safety risk addressed by the rule has a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children; and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives. This proposed rule is not subject to 
the Executive Order because it is not economically significant as 
defined in Executive Order 12866, and because the Agency does not have 
reason to believe the environmental health or safety risks addressed by 
this action present a disproportionate risk to children. The public is 
invited to submit or identify peer-reviewed studies and data, of which 
the agency may not be aware.

G. National Technology Transfer and Advancement Act of 1995

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272

[[Page 13699]]

note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards. The 
proposed rulemaking involves technical standards. Therefore, the Agency 
conducted a search to identify potentially applicable voluntary 
consensus standards. However, we identified no such standards. 
Therefore, EPA proposes to use the constituent specification limits of 
the synthesis gas exclusion found at 40 CFR 261.38(b) to establish the 
legitimacy of the fuel, and the universal treatment standards for 
chromium, lead, nickel, vanadium, arsenic, and antimony to establish 
the legitimacy of products placed on the land.
    EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

H. Executive Order 12898

    EPA is committed to addressing environmental justice concerns and 
is assuming a leadership role in environmental justice initiatives to 
enhance environmental quality for all populations in the United States. 
The Agency's goals are to ensure that no segment of the population, 
regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health or environmental 
impacts as a result of EPA's policies, programs, and activities, and 
that all people live in safe and healthful environments. In response to 
Executive Order 12898 and to concerns voiced by many groups outside the 
Agency, EPA's Office of Solid Waste and Emergency Response formed an 
Environmental Justice Task Force to analyze the array of environmental 
justice issues specific to waste programs and to develop an overall 
strategy to identify and address these issues (OSWER Directive No. 
9200.3-17).
    Today's proposed rule pertains to hazardous oil-bearing secondary 
materials processed in a gasification system to produce valuable 
products. It is not certain whether the environmental problems 
addressed by this rule could disproportionately affect minority or low-
income communities. Today's proposed rule is intended to reduce risks 
of excluded hazardous secondary materials as proposed, and to benefit 
all populations. As such, this rule is not expected to cause any 
disproportionately high and adverse impacts to minority or low-income 
communities versus non-minority or affluent communities.
    The wastes proposed for exclusion will be subject to protective 
conditions regardless of where they are generated and regardless of 
where they may be managed. Although the Agency understands that this 
proposed exclusion, if finalized, may affect where these wastes are 
managed in the future, the Agency's decision to conditionally exclude 
these materials is independent of any decisions regarding the location 
of waste generators and the siting of waste gasification facilities. 
Today's proposed rule will reduce loadings of oil-bearing wastes to the 
soil, and reduce emissions to the atmosphere. EPA believes that these 
provisions of the proposal will benefit all populations in the United 
States, including low-income and minority communities.
    We encourage all stakeholders including members of the 
environmental justice community and members of the regulated community 
to provide comments or further information related to potential 
environmental justice concerns or impacts, including information and 
data on facilities that have evaluated potential ecological and human 
health impacts (taking into account subsistence patterns and sensitive 
populations) to minority or low-income communities.

I. Executive Order 13211 (Energy Effects)

    This proposal is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. We have concluded 
that this proposal will not have any adverse energy effects. It is a 
de-regulatory proposal that will primarily affect the petroleum 
refinery industry (SIC classification 2911). If adopted, the proposal 
will promote the practice of petroleum refineries processing their 
hazardous oil-bearing secondary material (materials historically 
classified as hazardous waste) in gasification systems to produce 
synthesis gas fuel. Synthesis gas fuel is an alternative fuel composed 
primarily of hydrogen and carbon monoxide. When used to produce 
electricity in combined cycle turbines, its use allows power generators 
to produce electricity more efficiently than other forms of fossil fuel 
based electricity production.

J. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et. seq. 
There are no information collection requirements for this proposed rule 
that require an ICR. Furthermore, there are no paperwork requirements 
for entities affected by this proposal. Burden means the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information. An Agency may not conduct or sponsor, and a 
person is not required to respond to a collection of information unless 
it displays a currently valid OMB control number. The OMB control 
numbers for EPA's regulations are listed in 40 CFR part 9 and 48 CFR 
chapter 15.

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Dated: March 19, 2002.
Christine Todd Whitman,
Administrator.
    For the reasons set out in the preamble. Chapter I of title 40 of 
the Code of Federal Regulations is proposed to be amended as follows:

[[Page 13700]]

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM

    1. The authority citation for part 260 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937-6939, and 6974.
    2. Section 260.10 is amended by adding a new definition for 
``gasification system'' in alphabetical order to read as follows:


Sec. 260.10  Definitions.

* * * * *
    Gasification system means an enclosed thermal device and associated 
gas cleaning system or systems that does not meet the definition of an 
incinerator or industrial furnace (found at Secs. 260.10), and that:
    (1) Limits oxygen concentrations in the enclosed thermal device to 
prevent the full oxidization of thermally disassociated gaseous 
compounds;
    (2) Utilizes a gas cleanup system or systems designed to remove 
contaminants from the partially oxidized gas that do not contribute to 
its fuel value;
    (3) Slags inorganic feed materials at temperatures above 2000 deg.F 
;
    (4) Produces a synthesis gas; and
    (5) Is equipped with monitoring devices that ensure the quality of 
the synthesis gas produced by the gasification system.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. Section 261.4 is amended by adding paragraph (a)(12)(iii) to 
read as follows:


Sec. 261.4  Exclusions.

    (a) * * *
    (12) * * *
    (iii)(A) Hazardous oil-bearing secondary materials (i.e., sludges, 
byproducts, or spent materials) that are generated at a petroleum 
refinery (SIC 2911) and inserted into a gasification system (defined in 
Sec. 260.10 of this chapter) to produce a synthesis gas used as an 
ingredient in chemical manufacture or as a fuel, subject to the 
conditions of paragraph (a)(12)(iii)(B) of this section.
    (B) Conditions.
    (1) Synthesis gas used as a fuel must meet the specifications of 
Sec. 261.38(b) of this part;
    (2) The hazardous oil-bearing secondary material must not be placed 
on the land prior to insertion in the gasification system;
    (3) The hazardous oil-bearing secondary material must not be 
speculatively accumulated prior to insertion in the gasification 
system, unless a variance has been granted under Sec. 260.31(a) of this 
chapter; and
    (4) Any materials (by-products, sludges, ``frits'', bottoms) 
generated by the gasification system that are excluded under paragraph 
(a)(12)(iii) that are placed on the land must meet the non-wastewater 
Universal Treatment Standards for chromium, lead, nickel, vanadium, 
arsenic, and antimony found at Sec. 268.48 of this chapter.

[FR Doc. 02-7097 Filed 3-22-02; 8:45 am]
BILLING CODE 6560-50-P