[Federal Register Volume 73, Number 1 (Wednesday, January 2, 2008)]
[Rules and Regulations]
[Pages 57-72]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25240]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[EPA-HQ-RCRA-2002-0002: FRL-8511-5]
RIN 2050-AE78


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is revising its 
hazardous waste management regulations under the Resource Conservation 
and Recovery Act (RCRA) to further promote the environmentally sound 
recycling of oil-bearing hazardous secondary materials generated by the 
petroleum refining industry. Specifically, EPA is amending an existing 
exclusion from the definition of solid waste for oil-bearing hazardous 
secondary materials when they are processed in a gasification system at 
a petroleum refinery for the production of synthesis gas. We are 
finalizing this exclusion so that the gasification of these materials 
will have the same regulatory status (they are all excluded from the 
definition of solid waste under RCRA) as oil-bearing hazardous 
secondary materials that are reinserted into the petroleum refining 
process. This action serves what we believe is a national interest by 
capturing as much energy from a barrel of oil as possible to maximize 
production efficiencies at petroleum refineries in an energy 
constrained world.

DATES: This final rule is effective on February 1, 2008.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-RCRA-2002-0002. All documents in the docket are listed on 
the http://www.regulations.gov web site. Although listed in the index, 
some information is not publicly available, because, for example, it 
may be Confidential Business Information (CBI) or other information, 
the disclosure of which is restricted by statute. Certain material, 
such as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Elaine Eby, Waste Minimization Branch, 
Hazardous Waste Minimization and Management Division, Office of Solid 
Waste (5302P), Environmental Protection Agency, 1200 Pennsylvania Ave., 
NW., Washington, DC 20460; telephone number: (703) 308-8449, fax 
number: (703) 308-8433, e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: 

A. Does This Action Apply to Me?

    This rule may apply to entities regulated under RCRA, in the 
petroleum refining industry, identified as Standard Industrial 
Classification (SIC) 2911. To determine whether your facility, company, 
or business is affected by this action, you should carefully examine 40 
CFR Parts 260 through 271. If you have questions regarding the 
applicability of this action to a particular entity, consult the person 
listed in the preceding ``FOR FURTHER INFORMATION CONTACT'' section.

B. Table of Contents

I. Statutory Authority.
II. Summary of This Action.
III. Background.
IV. Development of This Final Rule.
    A. How Many Gasification Systems Are Currently Operating at 
Petroleum Refineries?
    B. What Conclusions Have We Drawn About Gasification Systems 
Operating at Petroleum Refineries?
V. This Final Rule.
    A. Does the Conditional Exclusion Include a Definition for a 
Gasification System Used at a Petroleum Refinery?
    B. Does the Conditional Exclusion Include a Synthesis Gas 
Specification?
    C. Does the Conditional Exclusion Prohibit Oil-Bearing Hazardous 
Secondary Material From Being Placed on the Land

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Prior to Insertion in the Gasification System?
    D. Does the Conditional Exclusion Prohibit Oil-Bearing Hazardous 
Secondary Materials From Being Speculatively Accumulated Prior to 
Insertion in the Gasification System?
    E. Does the Conditional Exclusion Regulate Certain Metals in 
Residuals Generated from the Gasification Process?
    F. Does the Conditional Exclusion Require Additional 
Recordkeeping and Reporting Requirements?
VI. What Will the Effect of the Final Rule Be on Recycling and 
Energy Recovery?
VII. How Will These Regulatory Changes Be Administered and Enforced 
in the States?
VIII. What Are the Costs and Benefits of the Final Rule?
IX. Statutory and Executive Order Reviews.
    A. Executive Order 12866: Regulatory Planning and Review.
    B. Paperwork Reduction Act.
    C. Regulatory Flexibility Act.
    D. Unfunded Mandates Reform Act.
    E. Executive Order 13132: Federalism.
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments.
    G. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks.
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use.
    I. National Technology Transfer and Advancement Act of 1995.
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations.
    K. Congressional Review Act.

I. Statutory Authority

    The U.S. Environmental Protection Agency (EPA or the Agency) 
regulates the generation and management of hazardous waste under 40 CFR 
Parts 260 through 273 using the authority of the Resource Conservation 
and Recovery Act of 1976 (RCRA), as amended, 42 U.S.C. 6901 et seq.

II. Summary of This Action

    EPA is amending an existing exclusion from the definition of solid 
waste that applies to oil-bearing hazardous secondary materials 
generated at a petroleum refinery when these materials are recycled by 
inserting them back into the petroleum refining process. This exclusion 
is found at 40 CFR 261.4(a)(12)(i) and applies to oil-bearing hazardous 
secondary materials that are hazardous because they are listed in 40 
CFR Part 261, Subpart D (e.g., K048-K052, K169-K170, and F037-F038), or 
because they exhibit a hazardous characteristic under Part 261, Subpart 
C.
    With today's final rule, the exclusion will be revised to add 
``gasification'' to the list of already recognized petroleum refinery 
processes (e.g., distillation, catalytic cracking, fractionation, and 
thermal cracking units) into which oil-bearing hazardous secondary 
materials can be legitimately recycled. The Agency is also promulgating 
a definition for the term ``gasification,'' at 40 CFR 260.10, which 
applies only to this specific exclusion. The exclusion is conditioned 
on there being no land placement and no speculative accumulation of the 
oil-bearing hazardous secondary material prior to re-insertion into the 
petroleum refining process. The exclusion allows these materials to be 
inserted into the same petroleum refinery where they are generated, or 
sent directly to another petroleum refinery, and still be excluded 
under this provision.
    Provided the conditions of the exclusion are met, oil-bearing 
hazardous secondary materials will be excluded from the definition of 
solid waste at the point of generation. Similarly, the fuels and by-
products manufactured from these excluded materials will also be 
excluded.\1\ Residuals from the gasification process, like residuals 
generated from other recognized petroleum refining processes (e.g., 
fines from coking operations) will be classified as newly generated 
waste and would only be considered hazardous if they exhibit one or 
more of the hazardous waste characteristics. However, as discussed in 
the preamble for the Federal Register notice promulgating this 
exclusion at 63 FR 42128 (August 6, 1998), the exclusion extends only 
to materials actually reinserted into the petroleum refinery process, 
and any residuals generated from the processing of oil-bearing 
hazardous secondary materials prior to insertion into the petroleum 
refining process are designated as F037 waste.
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    \1\ The existing exclusion found at 40 CFR 261.4(a)(12)(i) also 
requires that the oil-bearing hazardous secondary material inserted 
into the petroleum refinery process does not result in the coke 
product exhibiting one or more of the hazardous waste 
characteristics.
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    Subsequent to the promulgation of the exclusion in August 1998 (63 
FR 42110), we proposed regulatory language that would create a new, 
separate exclusion to address the gasification of oil-bearing hazardous 
secondary materials. (See 67 FR 13684, March 25, 2002.) However, in the 
course of finalizing this rule, we have concluded that a new exclusion 
is unnecessary. Instead, we are following the original proposal 
suggested in the July 15, 1998 Notice of Data Availability (NODA) (See 
63 FR 38139) to add to 40 CFR 261.4(a)(12)(i) gasification, as one of 
the recognized petroleum refining processes to which oil-bearing 
hazardous secondary materials can be inserted and not be considered a 
solid waste under the Subtitle C hazardous waste regulations. The 
definition of gasification, however, is generally based on the March 
2002 proposal, and comments and information developed as a result of 
both the NODA and that proposal.
    Today's final rule is based on information presented in the July 
1998 NODA, the final rule for oil-bearing hazardous secondary materials 
for petroleum refining operations published in August 1998, and the 
March 25, 2002 proposed rule. The rulemaking record for this rule 
incorporates the rulemaking records for all of these notices.

III. Background

    The exclusion at 40 CFR 261.4(a)(12)(i) provides operators of 
petroleum refineries with the ability to recycle materials generated by 
the refining of crude oil to manufacture additional fuels. In that 
rule, we specifically address certain reinsertion scenarios that 
involved common practices within the industry (e.g., coking and quench 
coking operations). Prior to finalizing these provisions, however, we 
issued a Notice of Data Availability (NODA) specifically requesting 
comment on extending the exclusion to gasification--a process that also 
provides operators of petroleum refineries the ability to extract 
additional hydrocarbons from these materials by converting them into a 
synthesis gas. (See 63 FR 38139, July 15, 1998.)
    We stated in the NODA that gasification of oil-bearing hazardous 
secondary materials from the petroleum refining industry may be an 
activity warranting an exclusion from the definition of solid waste, 
because gasification also provides a means of recovering hydrocarbons 
from these materials and could be viewed as an additional process in 
crude oil refining. We also noted that a gasification system might 
compete with other petroleum refining operations (i.e., coking) for 
these same materials, which suggested to us that gasification is an 
alternative fuel production process--just one that was not being used 
extensively in the petroleum refining industry.
    The Agency did not add gasification in the 1998 rule, choosing to 
explicitly include only those petroleum refining processes discussed in 
the original proposal. In 2002 however, the Agency proposed a 
different, more ambitious exclusion for hazardous waste processed in a 
gasification system for the production of synthesis gas. In that

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proposal, we solicited comment on two conditional exclusions. The first 
was for oil-bearing hazardous secondary materials recycled in a 
gasification system operating at a petroleum refinery or at a different 
facility operating outside the petroleum refining industry. This 
proposal was different from what was proposed in the 1998 NODA, where 
gasification operations were specifically identified as part of the 
petroleum refining operation. A second, much broader exclusion, 
addressed all hazardous secondary material when processed in a 
gasification system for the production of synthesis gas. This broader 
exclusion is not being addressed as part of this rulemaking and is 
still under consideration by the Agency.\2\
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    \2\ However, it is likely that if we chose to move forward with 
the broader exclusion, the Agency would issue a supplemental 
proposal before it makes any final decision.
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    Because the proposed exclusion was addressing recycling scenarios 
for oil-bearing hazardous secondary materials outside petroleum 
refining operations, we proposed an expanded set of conditions. The 
conditions proposed included the conditions already included in 40 CFR 
261.4(a)(12)(i) (e.g., no speculative accumulation and no land 
placement of the material prior to reuse), as well as conditions, that 
we believed, would ensure the legitimacy of the process as a production 
operation, rather than a waste treatment process.
    The first condition specified was a definition of the types of 
gasification systems capable of processing these oil-bearing hazardous 
secondary materials into synthesis gas. At the time, we were aware of a 
number of devices operating in the United States (U.S.) that could 
claim to be a type of gasification system, but did not gasify materials 
in the same manner, or to the same extent, as the gasification systems 
we considered for the proposal. We were concerned that these devices 
may be more similar to waste treatment processes than to production 
operations.
    Additionally, we proposed that the synthesis gas product from the 
gasification system meet the fuel specification promulgated for 
hazardous waste derived synthesis gas in the ``Synthesis Gas Rule.'' 
\3\ The synthesis gas specification (or syngas spec) establishes 
specific physical parameters and concentration levels for contaminants 
and serves as a regulatory benchmark for classifying synthesis gas 
produced from hazardous waste as a fuel that can be readily marketed, 
rather than as a hazardous waste fuel (see 40 CFR 261.38(b)).\4\
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    \3\ For purposes of this preamble discussion, we are using the 
term, ``Synthesis Gas Rule'' to refer to the regulation found at 40 
CFR 261.38(b). This regulation was developed as part of the RCRA 
Comparable Fuels Exclusion that provides a conditional exclusion 
from RCRA Subtitle C for fuels which are produced from a hazardous 
waste, but which are comparable to some currently used fossil fuels. 
The entire preamble and rule can be found in 63 FR 33782, June 19, 
1998. Hazardous Waste Combustors; Revised Standard; Final Rule--Part 
I: 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.
    \4\ We also solicited comment on a number of approaches to 
revise the synthesis gas specifications found at 40 CFR 261.38(b). 
(See 67 FR at 13694, March 25, 2002.) In particular we were 
interested in revised standards for the highly volatile metals and 
some organic constituents.
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    Finally, we proposed that any co-product or residue generated by 
the gasification system be subject to the Universal Treatment Standards 
(UTS) (found at 40 CFR 268.48) for six RCRA metals (i.e., antimony, 
arsenic, chromium, lead, nickel, and vanadium), if such co-product or 
residue was placed on the land. This condition was proposed to ensure 
legitimacy by applying the same land disposal provisions to any co-
product and residual that would have existed had the oil-bearing 
hazardous secondary materials not been excluded from the definition of 
solid waste. We reasoned that this would eliminate any incentive to 
claim to be performing ``gasification'' for the real purpose of 
avoiding treatment of metals in residues that ultimately are placed on 
the land.
    In response to the proposal, a number of commenters generally 
supported the idea of promoting the reuse of oil-bearing hazardous 
secondary materials from petroleum refineries to produce additional 
fuels, although they also expressed concern with one or more of the 
proposed conditions. A number of other commenters, however, disagreed 
with our approach. Specifically, these commenters believed that full 
RCRA Subtitle C regulation for both the oil-bearing hazardous secondary 
materials and the gasification process was mandated by RCRA. These 
commenters stated that RCRA Subtitle C oversight is necessary because 
gasification is merely a poor combustion process, promoting the 
generation and release of toxic products of incomplete combustion 
(PIC), including dioxin-containing compounds. Conversely, other 
commenters questioned, as they had for the coking and quench coking 
operations in the original exclusion, whether we had any regulatory 
authority at all in this situation. (See discussion at 63 FR 42121-
42129, August 6, 1998.) These commenters suggested that the 
gasification of oil-bearing hazardous secondary materials generated 
elsewhere in the refining process is merely the final step in 
extracting fuels from the crude oil feed to the refinery and is, 
therefore, part of an ongoing production process. We also received 
comments on the specific conditions we proposed as part of the 
exclusion.
    With regard to the specific technical issues for which we solicited 
comment, we received little response. That is, commenters did not 
provide data on the composition of gasification system residues or the 
composition of synthesis gas. In addition, limited data were received 
regarding the economics of operating a gasification system at a 
petroleum refinery or elsewhere.\5\ While we solicited this information 
for both the proposed petroleum refinery exclusion and the broader 
exclusion applicable to all hazardous waste (see 67 FR at 13695, March 
25, 2002), the lack of information submitted weighed heavily on our 
decision to limit today's rulemaking specifically to the petroleum 
refinery industry.
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    \5\ One commenter described the composition of their residue 
streams for their specific gasification system; however, no 
constituent concentration data was provided. In this case, the 
commenter described inorganic residues that vitrify into a leach 
resistant glass, solid particulates of baghouse dust and a dissolved 
salt scrubber solution.
    A few comments were received on the economics of the 
gasification process. Several commenters disagreed with our 
assessment of the economics of running a gasification system. One 
commenter disagreed with our statements that the cost of building 
and operating a gasification system is sufficient to guarantee high 
quality products. Other commenters stated that the changes we were 
proposing would not lower the regulatory barriers to using 
gasification as part of the production process.
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    Major comments on today's rule are discussed elsewhere in this 
preamble.

IV. Development of This Final Rule

    Through study of existing technical reports and papers published by 
the Department of Energy (DOE) and others, the Agency was aware that 
gasification could be a part of the petroleum refining process. We 
solicited data to confirm this in our proposal; however, commenters did 
not provide a significant amount of new information, thus requiring EPA 
to once again check existing information and data to confirm our 
understanding of the gasification process and its use in petroleum 
refinery operations. In addition, we sought to confirm, through site 
visits, how gasification was integrated into the production process at 
some petroleum refineries.

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A. How Many Gasification Systems Are Currently Operating at Petroleum 
Refineries?

    Petroleum refineries use gasification for the conversion of low-
value fuels and/or secondary material, such as petroleum coke, 
visbreaker tar and deasphalter pitch into synthesis gas. Synthesis gas 
can then be converted to usable products, such as hydrogen, ammonia and 
other chemicals, and/or used as a fuel to produce steam and 
electricity. Oil-bearing hazardous secondary materials generated at the 
petroleum refinery can also be co-gasified with these other materials 
to manufacture synthesis gas. In petroleum refining operations, 
electric power generation is a preferred use for the synthesis gas. For 
this purpose, the integrated gasification combined cycle (IGCC) 
technology can be integrated into the petroleum refinery process. 
Except for the gasifier and the feedstock preparation units, many of 
the components in an IGCC system already exist at a petroleum refinery. 
Downstream of a gasifier, petroleum refineries, as part of their 
ongoing production processes, typically have the other components of an 
IGCC plant, including gas clean-up systems, Claus plants, heat recovery 
systems, and steam and gas turbines. Power generation for use within a 
petroleum refinery is not a new activity and based on our research, is 
widely practiced. Seldom, however, is enough power produced to allow it 
to be sold for external consumption. With the utilization of an IGCC 
plant, a refinery's internal power needs can be readily addressed with 
surplus power sold as a commodity to outside consumers.
    Presently, EPA has identified four gasification systems operating 
at petroleum refineries in the U.S.\6\; one of these is an IGCC unit. 
\7,8,9\ The second uses the synthesis gas to produce chemicals. The 
Agency is also aware of two petroleum refineries that operate units 
combining fluid coking with coke gasification, a process known as 
flexicoking.TM\10\
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    \6\ Data pertaining to operational gasification systems 
processing secondary materials from petroleum refineries was 
developed from a review of the Gasification Technology Council's 
database. Based on information obtained from this database, there 
are 16 gasification systems operating at petroleum refineries 
outside the U.S. See email correspondence from Mr. James Childress, 
Executive Director, Gasification Technology Council to Ms. Elaine 
Eby, USEPA. Re: Operational Gasification Systems Processing 
Petroleum Refining Residues at Petroleum Refineries. July 2007.
    \7\ Experience With Low Value Feed Gasification at the El 
Dorado, Kansas Refinery by Gary DelGrego. Texaco Power and 
Gasification. Presented at the 1999 Gasification Technology 
Conference. Recently, the Agency learned that the IGCC unit 
operating at the El Dorado, Kansas refinery was shut down in 2006.
    \8\ IGCCs combine the gasification reactor with a combined cycle 
power turbine designed to use the synthesis gas. In IGCC systems, 
the synthesis gas is injected into the combustion turbine and 
ignited. The resulting high energy exhaust from the combustion of 
synthesis gas in the turbine is used to turn a generator. Steam and 
additional electric power is recovered in a follow-up heat recovery 
steam generator from the turbine's high temperature exhaust.
    \9\ One of the largest markets for IGCC systems is the petroleum 
refining industry using petroleum residual feedstock, such as vacuum 
residual oil, deasphalter bottoms and petroleum coke. Petroleum 
refineries typically feature multi-train designs for high 
reliability and the co-production of power, steam and hydrogen for 
the refinery, with extra power being sold to third parties. Major 
Environmental Aspects of Gasification-based Power Generation 
Technologies--Final Report. U.S. Department of Energy. Office of 
Fossil Energy. National Energy Technology Laboratory. December 2002.
    \10\ Sapre, Ajit, Kamienski, Paul, Phillips, Glenn, Wright, 
Marie, Resid Upgrading Technology Options and Role of Flexicoking 
Technology. ERTC Coking and Gasification Conference, Paris France. 
April 18, 2007.
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    While petroleum refinery-based gasification units are currently in 
limited use in the U.S., interest in developing these systems is on the 
rise.\11,12,13\ Many factors may be contributing to this interest, but 
we believe it is most likely related to the increasing cost of natural 
gas, an increasing interest in maximizing efficiencies in the petroleum 
refining process, manufacturing cleaner fuels, and reducing the 
generation of waste. Although limited in number, petroleum refinery-
based gasification systems have demonstrated positive economic returns, 
while providing more flexible operations to address increases in raw 
material costs.\14\ These facilities have shown that gasification 
systems can process lower value fuels or material commodities (e.g., 
petroleum coke and other petroleum secondary materials) into higher 
value fuels or chemical commodities. These systems have also 
demonstrated how well gasification fits into petroleum refinery 
operations and the advantages of doing so.
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    \11\ Gray, D. and Tomlinson. Potential of Gasification in the 
U.S. Refining Industry. United States Department of Energy, National 
Energy Technology Laboratory. June 2000.
    \12\ Murano, John J. Refinery Technology Profiles. Gasification 
and Supporting Technologies. U.S. Department of Energy. National 
Energy Technology Laboratory. Energy Information Administration. 
June 2003.
    \13\ Clayton, Stewart J., Steigel, Gary J., and Wimer, John G., 
Gasification Technologies Product Team, U.S. Department of Energy. 
U.S. DOE's Perspective on Long-Term Market Trends and R&D Needs in 
Gasification. Presented at the 5th European Gasification Conference. 
Gasification--The Clean Choice. Noordwijk, The Netherlands. April 8-
10, 2002.
    \14\ The addition of a gasification plant at an El Dorado, 
Kansas petroleum refinery resulted in significant economic benefits. 
Previously, the refinery was spending $12 to $14 million per year on 
power purchases from the local utility. With the implementation of 
the gasification system, the refinery reported paying only a few 
million dollars a year for stand-by services. In addition, the 
refinery saved about $1 million annually in both waste shipment and 
disposal costs and nitrogen costs. Steam production costs were 
reduced by more than half. Other benefits resulted from oxygen 
enrichment of the sulfur plant that enabled the refinery to process 
a wider range of high sulfur crudes. Furimsky, E. Gasification in 
Petroleum Refinery of 21st Century. Oil and Gas Science and 
Technology--Rev. IFP, Vol.54 (1999), No. 5, pp. 597-618.
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B. What Conclusions Have We Drawn About Gasification Systems Operating 
at Petroleum Refineries?

    This Unit IV.B. explains the overall rationale for the Agency's 
decision that oil-bearing hazardous secondary materials inserted into a 
gasifier are excluded from the definition of solid waste. Analyses 
supporting this decision are found elsewhere in this preamble and in 
the rulemaking record, including the Response to Comment document for 
this rulemaking. In each configuration reviewed, where petroleum 
refineries used petroleum coke alone or in combination with other 
petroleum feedstock (including oil-bearing hazardous secondary 
materials), we found that the systems are operated as part of the 
petroleum refining process and produce synthesis gas as a legitimate 
product to further enhance the petroleum refining operation. We believe 
that a gasification system, when operated at a petroleum refinery, will 
function as a component of the overall petroleum refinery process to 
produce synthesis gas as its main product.\15\ In turn, synthesis gas 
can be used to manufacture usable products, such as hydrogen, ammonia 
and other chemicals, and/or used as a fuel to produce steam and 
electricity. Oil-bearing hazardous secondary materials generated by 
petroleum refineries, as well as other low-value fuels, are appropriate 
feed materials to

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gasification systems because these materials contain hydrocarbons that 
can be further processed into fuels or chemicals. The use of a gasifier 
to recover these hydrocarbons is ideal because the system not only 
operates to recover the hydrocarbon value for the production of a 
legitimate product, but can also process the non-fuel components to 
yield inorganic co-products (e.g., liquid or solid sulfur, ammonia). In 
manufacturing settings, gasification systems have historically been 
used to produce commodities and have not been operated to get rid of 
unwanted material.\16\ At petroleum refineries, a gasification system 
complements the activities already being performed at the petroleum 
refinery, i.e., the manufacture of fuels from crude oil.
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    \15\ ``Gasification-based systems operated at a petroleum 
refinery are typically highly integrated processes. The complex 
consists of a number of distinct processing steps/plants. These are: 
feed preparation, gasifier, air separation unit (ASU), syngas clean-
up, sulfur recovery unit (SRU), and downstream process options, such 
as cogeneration, hydrogen production, Fischer-Tropsch synthesis or 
methanol synthesis. Any given installation may or may not contain 
all of these processes depending on the feedstock used, products 
desired, and the availability of spare capacity in pre-existing 
plants at the petroleum refinery. For example, if the petroleum 
refinery has spare sulfur plant capacity or can revamp its existing 
sulfur plant to gain capacity, the sulfur plant would be considered 
outside the battery limits of the gasification complex.'' Marano, 
John J., Refinery Technology Profiles: Gasification and Supporting 
Technologies. U.S. Department of Energy. National Energy Technology 
Laboratory. Energy Information Administration. June 2003.)
    \16\ See review of Coal Conversion Technologies in Perry's 
Chemical Engineer's Handbook, Seventh Edition. Pages 27-13 through 
27-25. McGraw-Hill. 1997.
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    While some commenters have argued that gasification of oil-bearing 
hazardous secondary materials is more a waste management process 
involving incineration than a petroleum refining process, we refer to 
the conclusions drawn in a DOE report contrasting incineration and 
gasification. DOE concluded, and we agree, that gasification and 
incineration are distinct processes that can be distinguished by a 
number of factors. As discussed in the report, the factors 
distinguishing the two processes are: (1) Incinerators are designed to 
maximize the conversion of feedstock to carbon dioxide and water; 
gasifiers are designed to maximize the conversion of feedstock to 
carbon monoxide and hydrogen; (2) incinerators utilize large quantities 
of excess air; gasifiers utilize small quantities of oxygen; (3) 
incinerators operate in a highly oxidizing environment; gasifiers 
operate in a reducing environment; (4) incinerators discharge their 
flue gas to the environment as a waste; gasifiers utilize their 
synthesis gas for ongoing chemical, fuel production or power production 
as a product gas.\17 \
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    \17\ A Comparison of Gasification and Incineration of Hazardous 
Waste--Final Report. United States Department of Energy, National 
Energy Technology Laboratory (NETL). 3610 Collins Ferry Road. 
Morgantown, West Virginia 26505. DCN 99.803931.02. March 30, 2000.
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    The Agency has concluded that gasification operations fall within 
the scope of normal operations at petroleum refineries--even when 
applied to material that has historically been managed as waste. The 
Agency believes that recognizing gasification as a petroleum refining 
process, capable of recycling oil-bearing hazardous secondary 
materials, achieves the resource recovery goals of RCRA without 
jeopardizing human health and the environment. Gasification is a 
desirable component of fuel manufacturing operations at a petroleum 
refinery because it ensures more efficient processing of crude oil and 
provides the petroleum refinery with the added flexibility to maximize 
its fuel production outputs. Therefore, we disagree with the view that 
the activity serves essentially as a waste management process.
    In today's final rule, we find that oil-bearing hazardous secondary 
materials generated as part of the petroleum refinery process and 
inserted into a gasification system located at a petroleum refinery, 
will serve as legitimate feedstock materials and that the gasification 
process, is a type of petroleum refining process warranting these 
materials an exclusion from the definition of solid waste. We have 
concluded that the operation of gasification systems at petroleum 
refineries is consistent with other processes that occur at petroleum 
refineries (e.g., fractionation, coking, quench coking) because: (1) 
The activity takes place at a petroleum refinery; (2) the system uses 
feedstock only from refinery operations; (3) the system generates a 
synthesis gas that, is converted to multiple products, such as steam, 
electricity, hydrogen, as well as other chemicals; (4) the products 
generated are consistent with the many types of products normally 
generated at petroleum refineries; and (5) the system processes the raw 
material by manipulating the same variables, e.g., hydrocarbons, as 
other refining processes that are universally accepted to be part of a 
petroleum refinery.\18\
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    \18\ Energy and Environmental Profile of the U.S. Petroleum 
Refining Industry. United States Department of Energy. December 
1998.
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V. This Final Rule

    Gasification systems, like other petroleum refining operations, are 
capable of recovering fuel value or chemicals from the recycling of 
oil-bearing hazardous secondary materials. As such, we believe it is 
appropriate to treat these materials in a manner consistent with the 
other processes used at petroleum refineries that recover fuel value or 
chemicals from crude oil--the basic raw material used in petroleum 
refining. Today, we are amending the exclusion found at 40 CFR 
261.4(a)(12)(i), by adding gasification to the list of recognized 
petroleum refining processes. We are finalizing this change to: (1) 
Prevent unnecessary confusion regarding the status of oil-bearing 
hazardous secondary materials from the petroleum industry recycled in a 
gasification system; (2) promote the use of a technologically advanced 
method of extracting hydrocarbons from these materials; and (3) remove 
regulatory restrictions that may limit the petroleum refining 
industry's ability to maximize the production of fuels and other 
commodities from crude oil, while minimizing the production of waste 
from the fuel production process.
    The Agency has decided to limit the scope of this exclusion to oil-
bearing hazardous secondary materials that are gasified as part of the 
petroleum refining process for the production of synthesis gas. As 
such, we are retaining only the conditions applied to oil-bearing 
hazardous secondary materials in the existing exclusion at 40 CFR 
261.4(a)(12)(i). We are, however, adding one additional condition, a 
definition for gasification, which is based on information presented in 
the 1998 NODA, as well as the March 2002 proposal and comments and 
information received in response to these notices.
    We have decided not to finalize the other conditions proposed in 
2002. In large part, we have decided to eliminate these conditions 
because we are not extending this exclusion to oil-bearing hazardous 
secondary materials recycled at gasification systems operating outside 
the petroleum refining industry. The condition requiring the synthesis 
gas meet the specification we developed in the regulations at 40 CFR 
261.38(b) has been removed because we now believe, based on the 
compelling arguments made by commenters and a review of our rationale 
for including it as a condition, that it was unnecessary and an 
inappropriate application of RCRA to a petroleum fuel product. Our 
decision is strongly influenced by the operational purpose of petroleum 
refineries--the production of fuels. Petroleum refineries create fuels 
for commercial markets, and we are convinced that these gasification 
systems operate within the reasonable scope of these operations. We 
have also removed the condition requiring that materials generated by 
the gasification system (i.e., co-products and residuals) not be placed 
on the land if they exceed the nonwastewater Universal Treatment 
Standards (UTS) for antimony, arsenic, chromium, lead, nickel, and 
vanadium (found at 40 CFR 268.48). After further review, the Agency has 
determined that this condition is inconsistent with the current 
exclusion we are amending, and conflicts with how RCRA manages residues 
from excluded materials (i.e.,

[[Page 62]]

wastes are excluded at the point of generation, provided the conditions 
of the exclusion are met). Further, these constituents are not expected 
to leach at levels above the UTS in the residuals from gasification at 
petroleum refineries. These changes are discussed below.

A. Does the Conditional Exclusion Include a Definition for a 
Gasification System Used at a Petroleum Refinery?

    Yes. In today's final rule, we are promulgating a regulatory 
definition for gasification systems that are used at petroleum 
refineries. For this rule, gasification is defined as a process, 
conducted in any enclosed device or system, designed and operated to 
process petroleum feedstock, including oil-bearing hazardous secondary 
materials, through a series of highly controlled steps utilizing 
thermal decomposition, limited oxidation, and gas cleaning to yield a 
synthesis gas composed primarily of hydrogen and carbon monoxide gas.
    This final definition differs from the definition proposed in 2002 
in a number of ways. We have: (1) Deleted the reference to incinerators 
or industrial furnaces; (2) removed the requirement for the gasifier to 
slag its inorganic feed at temperatures above 2000 degrees Fahrenheit; 
and (3) removed the requirement that the unit be equipped with 
monitoring devices that ensure the quality of the synthesis gas. This 
revised definition reflects current information on gasification systems 
at petroleum refineries and addresses the significant concerns 
commenters raised regarding the proposed definition. More importantly, 
however, the definition reflects the primary purpose for using 
gasification at petroleum refineries, the production of synthesis gas. 
As such, we believe that we have retained the most important 
requirements of a gasification system operating at a petroleum 
refinery: (1) That it is considered a process; and (2) it utilizes 
petroleum feedstock to yield a synthesis gas.
    In the 2002 proposal (see 67 FR at 13690), we defined a 
gasification system as 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 40 CFR 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 degrees Fahrenheit; (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.
    We received numerous comments criticizing various aspects of our 
proposed definition. Some commenters argued the definition, as written, 
prohibited the potential use of a large number of gasification system 
designs that are in use around the world. More specifically, commenters 
stated that the definition eliminated one of the gasification designs 
currently processing petroleum residues in the U.S. because it did not 
operate at the specified temperature or slag the residual.\19\ 
Generally, however, commenters urged the Agency to revise the 
definition to include all petroleum refinery-based units currently 
processing petroleum refining residues, or provide some type of site-
specific variance to allow such units the opportunity to demonstrate 
that they can safely process refinery residues in their gasification 
system. While the development of a variance procedure would be a 
possible mechanism to evaluate those gasifiers not meeting the 
definition, the Agency believes that the definition of gasification 
being promulgated today addresses the concerns raised by the commenters 
and provides sufficient flexibility to allow for any number of 
gasification designs or configurations to be used within a petroleum 
refinery. As such, we have not included a variance provision as part of 
today's rule.
---------------------------------------------------------------------------

    \19\ The Agency would also note that this gasification system 
operates outside a petroleum refinery and as such, would not be 
eligible for today's final rule.
---------------------------------------------------------------------------

    As previously mentioned, EPA has conducted a number of site visits 
to gasifiers located both on-site of a petroleum refinery and off-site 
and has continued to research the use of gasification at petroleum 
refineries. As a result of these efforts, we have concluded that 
gasification design and operation can vary substantially within the 
petroleum refining industry. We have also concluded and agree with 
commenters that a variety of different gasifier designs are capable of 
legitimately processing petroleum feedstock to produce a synthesis 
gas.\20\ This has given us reason to reassess the need for specifically 
defining certain operating characteristics of a gasification system. 
Our revised definition of ``gasification'' allows additional 
flexibility in the design and configuration of gasification systems to 
process petroleum feedstock, including oil-bearing hazardous secondary 
materials, provided the gasification system produces a synthesis gas.
---------------------------------------------------------------------------

    \20\ The reader is referred to the following DOE reports 
assessing the various types of gasification systems that can be used 
at petroleum refineries. Marano, John J., Refinery Technology 
Profiles: Gasification and Supporting Technologies. U.S. Department 
of Energy. National Energy Technology Laboratory. Energy Information 
Administration. June 2003.) and Gray, D. and Tomlinson. Potential of 
Gasification in the U.S. Refining Industry. United States Department 
of Energy, National Energy Technology Laboratory. June 2000.
---------------------------------------------------------------------------

    Several commenters questioned whether our definition should 
differentiate gasification from incinerators and industrial furnaces 
regulated under Subtitle C of RCRA. One commenter was particularly 
concerned that the proposed definition would require an affirmative 
determination by regulators that the gasification system did not meet 
the definition of incinerator or industrial furnace defined at 40 CFR 
260.10. Additionally, the commenter questioned whether gasification 
systems also designed to recover hydrogen chloride (HCl) (which 
gasification systems can be configured to recover), could also be 
defined as a type of industrial furnace, (i.e., halogen acid furnace) 
and thus not be able to use the exclusion.
    After weighing the value added to the definition by including the 
references to industrial furnaces and incinerators (defined at 40 CFR 
260.10), we are persuaded that including the reference to hazardous 
waste burning incinerators and industrial furnaces in the definition is 
unnecessary and could lead to confusion between the public, the 
regulated community, and regulators on how to regulate these units. 
Accordingly, we have removed the references to incinerators and 
industrial furnaces from the final definition. We expect, however, that 
even with this change to the definition, that certain gasification 
systems could be confused with, or identified as, a type of industrial 
furnace. In these situations, where the design and operational 
characteristics appear to be shared between the two types of systems, 
we believe it is appropriate for regulators to review the predominant 
products and process design of the system in question. For example, if 
the system recovers only small amounts of synthesis gas fuel, but 
significant amounts of hydrogen chloride, and the design of the system 
does not differ substantially from industrial furnaces designed to 
recover hydrogen chloride (i.e., a substantial fraction of emissions 
are released to the atmosphere), such a system would more appropriately 
be classified as a type of industrial furnace, rather than a 
gasification system.
    The Agency received few comments on four of the operational 
requirements

[[Page 63]]

proposed as part of the definition of gasification system: (1) Limits 
on oxygen concentrations in the enclosed thermal device to prevent the 
full oxidization of thermally disassociated gaseous compounds (2) 
production of a synthesis gas; (3) requirements for a gas cleanup 
system or systems designed to remove contaminants from the partially 
oxidized gas that do not contribute to its fuel value; and (4) 
requirements for monitoring devices that ensure the quality of the 
synthesis gas produced by the gasification system. In general, 
commenters did not have specific technical issues with the provisions, 
but thought that the provisions were unclear and would benefit from 
additional clarification. For example, commenters stated that the 
requirement relating to monitoring devices would benefit from EPA 
identifying the type of monitoring equipment required. In the case of 
the requirement for monitoring devices, consideration of this condition 
is no longer germane based on our determination that petroleum 
gasification is a part of the petroleum refining operation. In today's 
rule, we have retained, with slight modifications, three of the 
operational requirements. Changes have been made to the definition to 
eliminate redundancy and provide a more clear and concise regulatory 
definition. The revised definition retains the key operational 
requirements of a gasification system operating at petroleum refinery--
thermal decomposition, limited oxidation, gas cleanup, and production 
of a synthesis gas. This ensures that the exclusion applies only to 
gasification systems designed and operated in a manner that promotes 
the conversion of hydrocarbons found in the oil-bearing hazardous 
secondary materials into a synthesis gas fuel.
    The operational requirement that received the most comment was for 
a gasification system to ``slag inorganic feed materials at 
temperatures above 2000 degrees Fahrenheit.'' Commenters were divided 
on the need for such a requirement. Some believed that the slagging 
criteria generally would result in a non-leachable residue, a 
``preferred residual matrix.'' Others stated that the temperature 
requirement was arbitrary and not technically supportable. Additional 
commenters questioned the usefulness of the term slagging and the 
Agency's rationale for deciding to prohibit non-slagging gasifiers from 
the exclusion. These commenters pointed to the fact that the residues 
would be under RCRA Subtitle C jurisdiction if they exhibited a 
hazardous waste characteristic based on the content and leachability of 
the toxic metals.
    We had proposed this requirement to address two issues: (1) To 
ensure that gasification systems processing excluded materials operate 
at a temperature sufficient to slag inorganic components found in the 
materials, so metals would not leach from the residue; and (2) to 
reduce the occurrence of unreacted carbon-containing compounds in the 
residue formed by the gasification system. After review of all the 
comments, and a re-examination of our site visit reports and available 
technical reports, we have determined that this requirement is not 
needed and would inappropriately restrict those gasification systems 
and configurations that could be effectively used at petroleum 
refineries for the production of synthesis gas fuels. We have found 
that classifying a gasifier as slagging or non-slagging has no 
relationship to a gasification system's overall ability to effectively 
process hydrocarbons for the production of synthesis gas fuel. 
Similarly, if a gasifier generates a residual that exhibits one or more 
of the hazardous waste characteristics, it will be subject to the RCRA 
Subtitle C hazardous waste regulations. We believe that this should 
provide adequate incentive for petroleum refineries to consider the 
potential benefit of slagging gasifiers verses non-slagging units.\21\ 
Any further requirement by EPA would only interfere with the 
refineries' ability to most effectively achieve the same environmental 
endpoint.
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    \21\ Although EPA did not rely on this information in its 
decision-making, data analyzed by the Agency suggests that it is 
highly unlikely that leachable metal concentrations in residuals 
from gasification of secondary material from petroleum refining 
operations will be significant. See the memorandum to the record 
from Ms. Elaine Eby, USEPA. Re: Characterization of Petroleum 
Refining Waste and Possible Gasification Scenarios. August 2007.
---------------------------------------------------------------------------

    In the proposed rule, we further stated that gasifiers generally do 
not have direct emissions to the atmosphere. Several commenters 
disagreed with this conclusion and suggested that potential releases of 
toxic and hazardous air pollutants (HAP) can occur during other steps 
in the gasification process. These steps include, feedstock 
preparation, gas cleanup, product recovery, and slag quenching, as well 
as during start-up, shutdown or operational emergencies of the 
gasification system. These commenters further stated that the current 
Clean Air Act (CAA) regulations may fail to properly address potential 
risk to human health and the environment posed by these releases. As a 
result, these commenters urged EPA to make a regulatory determination 
that gasifiers should be identified as an industrial furnace and 
subject to all RCRA/CAA hazardous waste combustion regulations.
    In the proposal, (See 67 FR at 13688), we recognized that 
gasification systems are designed with release vents or flares that 
operate during emergencies or 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. Furthermore, the operation of flares 
and release vents is regulated by each facility's Title V CAA permit. 
Our decision to exclude, from the definition of solid waste, oil-
bearing hazardous secondary materials generated at a petroleum refinery 
and inserted back into the petroleum refining process has been guided 
by a determination that gasification is a legitimate petroleum refining 
process that results in the manufacture of a synthesis gas product. 
(See discussion in Section IV of this preamble.) This decision allows 
the beneficial use of petroleum refining oil-bearing hazardous 
secondary materials for the manufacturing of a synthesis gas fuel that 
can be used for the production of steam, and/or power. Therefore, we do 
not agree with the commenter's suggestion that gasification systems 
operating at petroleum refineries processing these materials are waste 
management units (e.g., incinerators) and that any potential air 
emissions should be subject to all RCRA/CAA hazardous waste combustion 
regulations. Emissions at a petroleum refinery operating a gasification 
system will be evaluated. However, these emissions will be evaluated 
for compliance with regulations for petroleum refining operations under 
the authority of the CAA.\22\
---------------------------------------------------------------------------

    \22\ See 72 FR 14734 (March 29, 2007), Risk and Technology 
Review, Phase II, Group 2.
---------------------------------------------------------------------------

B. Does the Conditional Exclusion Include a Synthesis Gas 
Specification?

    No. In today's final rule, there is no condition requiring the 
synthesis gas to meet certain physical and/or constituent 
specifications. In the 2002 proposal, the Agency included a condition 
that required the synthesis gas to meet the specification for hazardous 
waste derived synthesis gas found at 40 CFR 261.38(b). We proposed to 
apply the synthesis gas specification because we believed it would 
ensure that the synthesis gas produced was a legitimate fuel product, 
and was an appropriate

[[Page 64]]

condition considering we were proposing to allow oil-bearing hazardous 
secondary materials to be gasified at facilities outside a petroleum 
refinery. In addition, because the Agency was taking comment on whether 
to expand the exclusion to address all hazardous secondary materials 
generated in other industries, we considered such a provision to be 
important. In the development of the final rule, however, we have 
concluded, based on analysis of the comments and further review of 
petroleum refinery-based gasification systems that such a condition is 
unnecessary and an inappropriate use of RCRA to regulate a fuel product 
manufactured at petroleum refineries.
    The majority of the comments received did not specifically address 
the need for a synthesis gas specification, but rather addressed the 
overall inadequacy of the synthesis gas specification finalized in the 
``Synthesis Gas Rule.'' Commenters suggested that the specification was 
too lenient and not drawn from appropriate data.\23\ Several commenters 
also reminded the Agency of possible pending litigation.\24\
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    \23\ In the proposed rule, we requested comment on a number of 
approaches to revise the synthesis gas specification found at 40 CFR 
261.38(b). In particular, we were interested in soliciting comment 
on the specifications for highly volatile metals and certain 
organics.
    \24\ Commenters took issue with the inadequacy of the synthesis 
gas specification found at 40 CFR 261.38(b). Commenters believed 
that the allowable concentration limits for highly volatile metals 
and certain organics were excessively high, the BTU value was too 
low, and the specification was not based on actual synthesis gas 
from a gasification unit. Commenters noted the Agency was challenged 
on the synthesis gas specification in the Comparable Fuels Rule by 
the Sierra Club, Natural Resources Defense Council, and the 
Environmental Technology Council in Chemical Manufacturers 
Association v. EPA, No. 98-1375 (DC Cir. Filed August 17, 1998). The 
case is currently being held in abeyance by the DC Circuit Court. 
Because the Agency has decided not to require the synthesis gas fuel 
meet the specifications found at 40 CFR 261.38(b), specific comments 
on the appropriate specification requirements are not being 
addressed in this rulemaking.
---------------------------------------------------------------------------

    Irrespective of the concerns with the details of a synthesis gas 
specification, only a few commenters supported establishing a synthesis 
gas specification. These commenters generally agreed with the Agency's 
proposed premise of applying the synthesis gas specification to ensure 
legitimacy of the gasification process and the quality of the synthesis 
gas. However, other commenters suggested that applying the synthesis 
gas specification was without basis and inappropriate. Commenters 
reasoned that the purpose of 40 CFR 261.38 was to provide an exclusion 
from the definition of solid waste for synthesis gas generated by the 
gasification of hazardous waste. Under the 2002 proposal, they believed 
EPA was establishing that oil-bearing hazardous secondary materials 
generated at a petroleum refinery and re-inserted into a gasifier were 
excluded from the definition of solid waste because gasification was 
part of the production process. Given that, commenters questioned the 
Agency's rationale for including a hazardous waste specification to a 
manufactured fuel product, i.e., a product generated from a fossil 
fuel. Commenters reasoned that operators of gasification systems did 
not need a specification for synthesis gas any more than they needed a 
RCRA specification for gasoline, propane, petroleum coke, or any other 
legitimate product from a petroleum refining operation. Additionally, 
some commenters suggested that any questions regarding the quality of 
the synthesis gas were answered by the use of the synthesis gas as a 
fuel in power, steam, or hydrogen production on-site (subject to CAA 
regulations) and should serve to ensure that the synthesis gas was, in 
fact, a legitimate fuel.
    The Agency agrees with the commenters. In this rule, we have 
determined that gasification is a part of the petroleum refining 
process and that oil-bearing hazardous secondary materials generated at 
a petroleum refinery and reinserted back into a gasification system 
located at a petroleum refinery are excluded from the definition of 
solid waste, provided the conditions of the exclusion are met. Hence, 
the Agency concludes that gasification is a legitimate fuel process 
that does not require a synthesis gas specification as a condition to 
ensure its legitimacy. Gasification systems when operated at a 
petroleum refinery take petroleum feedstocks and convert them into a 
synthesis gas comprised primarily of hydrogen, carbon monoxide, carbon 
dioxide and methane. Petroleum feedstocks to these systems can include 
petroleum coke, visbreaker tars, deasphalter pitch, as well as oil-
bearing hazardous secondary materials. Available information suggests 
that the synthesis gas composition remains consistent regardless of the 
petroleum input feed. Furthermore, when used as a fuel for power 
generation, information available to the Agency shows that turbine 
specifications and other equipment specifications drive the fuel 
specification requirements of the synthesis gas fuel. As such, the 
Agency has also concluded that applying the synthesis gas 
specifications at 40 CFR 261.38 as presented in the 2002 proposal does 
not provide an additional assurance that legitimate fuel operations are 
occurring at gasifiers located at petroleum refineries. Therefore, in 
today's final rule, we are not including a condition that requires the 
synthesis gas generated by the gasification system to meet the 
specification of 40 CFR 261.38(b). The Agency has determined that the 
application of a hazardous waste derived synthesis gas specification is 
an inappropriate use of the synthesis gas specification for 
gasification operations at a petroleum refining.
    However, we note that today's exclusion from the definition of 
solid waste does not exempt the device from regulation under the 
applicable CAA standard for the gasification device, co-product 
recovery units, or any related infrastructure designed to use the 
synthesis gas fuel to produce electricity.

C. Does the Conditional Exclusion Prohibit Oil-Bearing Hazardous 
Secondary Materials From Being Placed on the Land Prior to Insertion in 
the Gasification System?

    Yes, the conditional exclusion we are amending (40 CFR 
261.4(a)(12)(i)) prohibits oil-bearing hazardous secondary materials 
from being placed on the land prior to insertion into the petroleum 
refining process. This prohibition will not change with the addition of 
gasification as a listed petroleum refining process.
    In the proposed rule, we explained our view that this condition 
(i.e., no placement on the land prior to re-insertion into the 
petroleum refining process) further defines gasification of excluded 
oil-bearing hazardous secondary materials as a legitimate refining 
operation for processing these materials because it requires that the 
excluded materials be handled as a valuable feed to the gasification 
system. We stated that we knew of no gasification system (or for that 
matter, any petroleum refinery) which stored these materials on the 
land, and that to do so would indicate that such oil-bearing hazardous 
secondary materials are being handled more like waste, and not as a 
feedstock (since because of the physical characteristics of these oil-
bearing materials, the potential for them not to be released could no 
longer be assured, and there could be large-scale losses of the 
secondary material due to land placement). Thus, we reasoned that oil-
bearing hazardous secondary materials from the petroleum refinery 
process should preclude storing the material in anything other than a 
tank, container, or some other device that would contain the material 
because as

[[Page 65]]

far as we knew, the oil-bearing hazardous secondary materials were 
generally comprised of tar-like, oily substances not amenable to land 
storage or placement.
    Most of the commenters agreed with our position that some type of 
restriction was appropriate to prevent the oil-bearing hazardous 
secondary materials from being placed or stored on the land. However, 
some commenters did not completely agree with our characterization of 
these materials (i.e., tar-like oily substances) and suggested that the 
prohibition take into account the physical characteristics of the oil-
bearing hazardous secondary materials before a total prohibition on 
land placement was implemented. For example, some commenters believed 
that the prohibition should only apply to those hazardous secondary 
materials that are tar-like oily substances, while other commenters 
suggested that we modify the wording of the prohibition to allow for 
land placement of hazardous secondary materials if it would not 
endanger the environment. One commenter stated that the hazardous 
secondary materials they received from a petroleum refinery could be 
described as chunky, angular, blocky or coarse particulates and could 
be safely managed on the land. However, these commenters did not 
provide EPA with any characterization data that would support their 
claims.
    Given that these hazardous secondary materials would be hazardous 
waste if discarded instead of being gasified, and given that land 
placement of these types of oil-bearing hazardous secondary materials 
is not typical before they are reinserted back into the petroleum 
refinery, we see no reason to relieve them from the existing 
prohibition against land placement for all oil-bearing hazardous 
secondary materials prior to re-insertion into the petroleum refining 
process (i.e., gasified). This approach maintains full regulatory 
consistency with the exclusion found at 40 CFR 261.4(a)(12)(i) which is 
being amended today to include gasification as an identified petroleum 
refining process.

D. Does the Conditional Exclusion Prohibit Oil-Bearing Hazardous 
Secondary Materials From Being Speculatively Accumulated Prior to 
Insertion in the Gasification System?

    Yes. In today's rule, the conditional exclusion we are amending (40 
CFR 261.4(a)(12)(i)) includes the requirement that the oil-bearing 
hazardous secondary materials not be speculatively accumulated prior to 
insertion into the petroleum refining process. This provision will not 
change with the addition of gasification as a listed petroleum refining 
process.
    In the proposed rule, we stated that the speculative accumulation 
provision ensures that legitimate quantities of oil-bearing hazardous 
secondary materials are being recycled and re-inserted into the 
petroleum refining process rather than being stored to avoid 
regulation. We reasoned that this condition was necessary to assure 
that recycling actually occurs, and that such materials are not 
discarded by being stored for extended periods of time. Furthermore, we 
stated that this condition is consistent with the no speculative 
accumulation condition we adopted for excluded oil-bearing hazardous 
secondary materials returned to the petroleum refinery process (40 CFR 
261.4(a)(12)(i)).
    As such, we are promulgating, as proposed, the speculative 
accumulation provision for oil-bearing hazardous secondary materials 
prior to their insertion into the petroleum refinery process. This 
requirement should ensure that such materials are not ``over 
accumulated,'' an indication of discard, but are being legitimately 
recycled, which maintains regulatory consistency with the existing 
exclusion we are amending at 40 CFR 261.4(a)(12)(i).

E. Does the Conditional Exclusion Regulate Certain Metals in Residuals 
Generated from the Gasification Process?

    No. In today's final rule, we are removing the proposed condition 
that materials (both co-products and residues) generated by the 
gasification system not exceed the nonwastewater Universal Treatment 
Standards (UTS) (40 CFR 268.48) for antimony, arsenic, chromium, lead, 
nickel, and vanadium when placed on the land.\25\ Under today's rule, 
and consistent with both the proposal and the existing exclusion found 
at 40 CR 261.4(a)(12)(i), we are classifying residues generated after 
the gasification process as newly generated. The determination as to 
whether the gasification residues (i.e., waste) or any other residue 
generated after reinsertion into the petroleum refining process are 
hazardous will be based on whether the residues exhibit a hazardous 
waste characteristic(s) when generated (i.e., after the oil-bearing 
hazardous secondary material is gasified). Should a residue exhibit a 
characteristic, such as leaching toxic metals at levels above the 
prescribed standards, it will be required to be managed in compliance 
with all applicable RCRA hazardous waste regulations, including the 
Land Disposal Restrictions (see 40 CFR 268.48).\26\ As for co-products, 
they are fully excluded as products and are outside RCRA jurisdiction 
unless discarded and/or disposed.
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    \25\ Universal Treatment Standards (UTS) are concentration-based 
treatment levels that must be met before a RCRA hazardous waste can 
be land disposed. These treatment standards can be found in 40 CFR 
268.40.
    \26\ If the Agency receives evidence to suggest that these 
gasification residues routinely have the potential to adversely 
affect human health and the environment, the Agency could list them 
as hazardous under RCRA.
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    In our proposed rule, we requested comment on a condition to the 
exclusion establishing leachate limits for six toxic metals in the 
gasification co-products and residuals prior to any placement on the 
land. We considered this condition to ensure that co-products and 
residues generated by the gasification process and that were to be 
placed on the land did not contain toxic metals with a potential for 
leaching greater than allowed by the requirements of the Land Disposal 
Restrictions (LDR) program. (See 67 FR at 13691, March 25, 2002.) In 
developing this possible condition, we were influenced by the condition 
established for hazardous waste-derived products that are used in a 
manner constituting disposal (see 40 CFR 266.20). These materials are 
required to meet the appropriate LDR treatment standards prior to use 
as products applied to the land (e.g., fertilizers). We reasoned that 
requiring this same condition for co-products and residuals would 
ensure legitimate fuel manufacturing by applying the same land disposal 
provisions to the co-products and residuals that would have existed had 
the material (i.e., the listed waste) not been excluded from the 
definition of solid waste. Further, it was reasoned that this proposed 
condition would be needed to assure that the gasification system is 
operated for the purpose claimed--conversion of organic matter in the 
hazardous secondary materials into fuels (or intermediates), while 
removing metals from raw synthesis gas and trapping those metals in an 
inert matrix. The levels in the proposed condition would provide a 
means of quantifying this premise.
    We received comments that both supported and opposed this 
condition. Commenters opposed to the condition stated that there was no 
need to impose the UTS requirements, beyond what the regulations (e.g., 
40 CFR 261.4(a)(12)(i)) already required for residues generated from 
the petroleum refining process (i.e., the characteristic test), and 
that EPA had provided no rationale for imposing the additional UTS

[[Page 66]]

requirements. As proposed, the condition would apply to any residual 
regardless of its characteristic determination. Other commenters, 
however, believed that EPA had not gone far enough, and that the 
residuals generated during the gasification process should be certified 
to meet all the nonwastewater UTS (both organic and inorganic 
constituents). Without such limits on hazardous organics, the 
commenters argued that substantial releases to the environment might 
occur because these residuals would be allowed in landfills not subject 
to subtitle C regulations.
    The Agency rejects the suggestion of the commenters that 
gasification residuals should be tested for all UTS constituents. As a 
result of studies and analyses conducted by EPA in support of the 
listing determinations for petroleum refinery wastes, as well as 
development of the LDR treatment standards for these wastes, the 
characterization of these materials is well documented, and does not 
represent all the UTS constituents. The suggestion that it is necessary 
to require these residuals meet all the nonwastewater UTS for all 
organic and inorganic constituents is therefore without technical 
justification.
    In response to the commenters arguing against imposing the UTS 
requirements for the six metals, the Agency set about establishing 
further justification for this condition. This began with a more 
detailed analysis of the characterization data for petroleum refining 
waste collected as part of the LDR program. We reviewed available data 
presented in various Treatment Technology Background Documents to get a 
better understanding of the total concentration levels of these six 
metals in the listed waste. As a result of this effort, we were able to 
collect concentration data for nine listed petroleum refining wastes. 
Next, based on information collected as part of the proposed rule, as 
well as information presented in two recent DOE studies, we developed 
gasification scenarios using a combination of petroleum coke and oil-
bearing hazardous secondary materials as feedstock to gasifiers with 
different feed rates.\27\ As a result of this analysis, we concluded, 
based on two scenarios we believe are most representative of possible 
gasification activities at petroleum refineries, that gasification 
residues would achieve the UTS levels for all metals, except for 
vanadium in one scenario and chromium in the other. With regard to 
chromium, the concentration level was below the characteristic level, 
but above the UTS level. As for vanadium, it was determined that 
petroleum coke (a product) contributed most of the vanadium to the 
gasifier, and that vanadium concentrations in the gasification 
residuals would not be affected when feeding petroleum coke alone or in 
combination with oil-bearing hazardous secondary materials.
---------------------------------------------------------------------------

    \27\ See the memorandum to the record from Ms. Elaine Eby, 
USEPA. Re: Characterization of Petroleum Refining Waste and Possible 
Gasification Scenarios. August 2007.
---------------------------------------------------------------------------

    Although this analysis showed chromium levels above the UTS in one 
scenario, the Agency is convinced that chromium concentrations in oil-
bearing hazardous secondary materials have decreased from the levels 
found in our characterization studies, which were conducted in 1988, 
1992, and 1998 and therefore will be lower than what we used in our 
analysis (i.e., the gasification residuals will have concentration 
levels below the UTS). This is based on information in the preamble for 
the August 1998 listing rule promulgating the exclusion at 
261.4(a)(12)(i) that indicates that chromium levels in these hazardous 
secondary materials will decrease due to a prohibition on chromium-
based water treatment chemicals in industrial cooling towers, as a 
result of Clean Air Act requirements (see 40 CFR part 63, subpart Q.) 
\28\ Furthermore, EPA believes that not only for chromium, but lead 
concentrations (which are below the UTS levels in the analysis we 
conducted) in the secondary materials will decline with time. This is 
due to the overall reduction in the use of these metals throughout the 
refinery (e.g., leaded gasoline is no longer produced). In conclusion, 
as a result of the additional analysis conducted in response to 
commenters concerns regarding the imposition of the UTS requirements, 
as well as our decision to amend 40 CFR 261.4(a)(12)(i) because we have 
determined that gasifiers are a part of the petroleum refinery process, 
the Agency has eliminated the condition requiring material generated by 
the gasification system to meet the UTS standards for antimony, 
arsenic, chromium, lead, nickel, and vanadium prior to their placement 
on the land. As such, oil-bearing hazardous secondary materials 
inserted to the gasification system, like other petroleum refining 
processes, are excluded from the definition of solid waste, at the 
point of generation, provided the conditions of the exclusion are met. 
Residuals generated after the gasification process are, therefore, 
considered a new point of generation. If a gasifier residual is 
determined to be characteristically hazardous, it must be managed as a 
hazardous waste (if discarded), including being treated to the UTS. 
These standards would require treatment for the characteristic, as well 
as any underlying hazardous constituents reasonably expected to be 
present. Underlying hazardous constituents include both organic and 
inorganic constituents. This is consistent with the current petroleum 
refinery exclusion found at 40 CFR 261.4(a)(12)(i), and addresses our 
greatest concern--assuring that gasification residues do not create 
potential risks when disposed.
---------------------------------------------------------------------------

    \28\ On September 8, 1994 (59 FR 46339), EPA issued a final MACT 
rule that eliminated the use of chromium-based water treatment 
chemicals and subsequently chromium compound emissions from 
industrial process cooling towers.
---------------------------------------------------------------------------

    As a final note, the Agency distinguishes between residuals 
generated from the gasifier and those residuals generated from the 
processing of oil-bearing hazardous secondary materials before they are 
reinserted into the petroleum process. EPA discussed in the final rule 
for the petroleum refinery exclusion (63 FR 42110, August 6, 1998), 
that some oil-bearing hazardous secondary materials cannot be directly 
inserted into a particular petroleum refining process, and therefore 
may require some type of processing or preparation beforehand (e.g., 
centrifugation, desorption, settling, etc.). See 63 FR at 42113-42114, 
42128. These activities are generally viewed as part of normal 
petroleum refining operations.
    During the 1998 rulemaking, however, we were particularly concerned 
with the management of any residuals generated from the processing or 
recycling of oil-bearing hazardous secondary materials prior to or 
before insertion back to the petroleum refining process, and thus 
developed an approach to ensure that if such residuals are discarded, 
that they continue to be managed appropriately. In the 1998 final rule, 
we clarified that the exclusion for oil-bearing hazardous secondary 
materials returned to the petroleum refining process only extends to 
the materials actually inserted into the petroleum refinery process, 
and any residuals generated from recycling or processing oil-bearing 
hazardous secondary materials prior to insertion into the refining 
process that: (1) Would have otherwise met a listing description when 
originally generated; and (2) are disposed of or intended for disposal, 
are designated as F037 waste and must be managed in accordance with all 
the applicable Subtitle C RCRA hazardous waste requirements. The 
language was

[[Page 67]]

intended to clarify that residuals that are not ultimately inserted are 
not excluded, and that these discarded residuals are classified as F037 
waste.
    The Agency did not include in the F037 listing residuals generated 
after reinsertion into the petroleum refining process, e.g., coke fines 
from coking operations. These types of residues generated after 
insertion into the petroleum refining process, are considered newly 
generated waste subject to the characteristic test, and not F037 waste. 
This is the exact reasoning we are applying to today's rule, i.e., if 
residuals are generated as a result of the processing of oil-bearing 
hazardous secondary materials prior to gasification, and if these 
residuals are intended for discard and the original oil-bearing 
hazardous secondary materials was a listed waste, these residuals are 
classified as F037 waste. Similarly, if the original waste exhibited 
one or more hazardous waste characteristics, and the processing, prior 
to gasification, resulted in a residual destined for disposal, that 
residue would be characterized as a newly generated waste, subject to 
the characteristic test.

F. Does the Conditional Exclusion Require Additional Recordkeeping and 
Reporting Requirements?

    No. Under today's rule, no additional recordkeeping or reporting 
requirements will be required. Under the exclusion at 40 CFR 
261.4(a)(12)(i), oil-bearing hazardous secondary materials are not 
solid wastes, for purposes of Subtitle C regulation, and therefore are 
not (by definition) hazardous wastes from the point of generation. 
Therefore, requirements that normally apply to the management of 
hazardous wastes, such as notification or the use of a hazardous waste 
manifest, do not apply to these materials, provided the conditions of 
the exclusion are satisfied.\29\
---------------------------------------------------------------------------

    \29\ It should be noted, however, that under 40 CFR 261.2(f) 
documentation is necessary to demonstrate that the conditions of an 
exclusion have been met. 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.
---------------------------------------------------------------------------

    In the approach used for the proposed rule, oil-bearing hazardous 
secondary materials could be processed in a gasification system either 
on-site or off-site of a petroleum refinery (i.e., materials could be 
sent to gasifiers at facilities that are not located within petroleum 
refineries (SIC 2911)). We noted that allowing these materials to go to 
facilities outside the petroleum refining industry was somewhat 
different and more expansive than what was permitted for the other 
processes previously included in 40 CFR 261.4(a)(12)(i). Because of 
this expansion, we asked for comment on whether additional records and/
or reporting requirements might be necessary. We proposed this 
alternative strategy (i.e., gasification facilities could be located 
either on-site or off-site of a petroleum refinery) because we believed 
that excluding oil-bearing hazardous secondary materials processed in 
gasification systems operating physically outside of a petroleum 
refinery could still be an extension of the petroleum refining process. 
It is not unusual for the refining of oil into fuels to occur at 
multiple locations.
    Many commenters generally were supportive of allowing off-site 
facilities as part of the exclusion. However, there were some 
commenters that strongly believed that gasification should only occur 
at a petroleum refinery. Commenters supporting off-site gasification 
agreed with the Agency's assessment that any gasification process 
operated off-site would be technically indistinguishable from the types 
of gasifiers operated at a petroleum refinery. One commenter believed 
that generators would be better served by transporting the oil-bearing 
hazardous secondary materials to a centralized processing facility for 
conversion to synthesis gas, and if the exclusion is not extended to 
``off-site'' gasification, the exclusion would be meaningless and have 
limited, if any, practical use.
    The Agency recognizes and agrees, in part, with the potential 
flexibility afforded to petroleum refineries that have an option of 
using off-site gasification facilities (i.e., gasification systems not 
located at a petroleum refinery). However, we have decided not to 
promulgate this aspect of the rule. The Agency has concluded that a 
gasification operation located off-site of a petroleum refinery is 
inconsistent with our basic premise for promulgating this exclusion--
gasification is a part of the petroleum refining process. As such, EPA 
is electing to simplify its approach today by allowing this exemption 
only for facilities that clearly meet the definition of petroleum 
refineries.\30\ It should be noted, however, that under the provisions 
of the exclusion, oil-bearing hazardous secondary materials may be 
inserted into the same petroleum refinery where they are generated, or 
sent directly to another petroleum refinery, and still be excluded 
under this provision.\31\
---------------------------------------------------------------------------

    \30\ It should be noted that petroleum refineries that ship oil-
bearing hazardous secondary materials to an off-site gasification 
system not located at a petroleum refinery (SIC 2911) would not meet 
the conditions of this exclusion and would be subject to the 
appropriate Subtitle C regulations. See, for example, the Synthesis 
Gas Rule at 40 CFR 261.38(b). Furthermore, a gasification facility 
that accepts oil-bearing hazardous secondary materials from a 
petroleum refinery can not claim to be part of the petroleum 
refining process and utilize this exclusion, even if the synthesis 
gas is sent back to the petroleum refinery for use. However, we do 
recognize that there will be situations where petroleum gasification 
facilities are built in close proximity (e.g., adjoining land) and 
are part of the petroleum refining facility. In general, such 
facilities would be within the scope of the exemption being 
promulgated today.
    \31\ See the February 8, 2002 letter from Mr. Robert Springer, 
Director of the Office of Solid Waste to Mr. Rob Short, Managing 
Director Tetra Process Services, L.C. In this letter, Mr. Short 
posed twelve detailed questions concerning the regulatory status of 
oil-bearing hazardous secondary materials under the RCRA. 
Specifically, clarification was requested on numerous aspects of the 
exclusion at 40 CFR 261.4(a)(12)(i).
---------------------------------------------------------------------------

VI. What Will the Effect of the Final Rule Be on Recycling and Energy 
Recovery?

    Predicting the impacts of any rule is a difficult task. In most 
cases, the marketplace determines the adoption of new technologies and/
or practices. In the case of gasification, it is doubly difficult as 
both the waste management market and the fuels market will impact 
adoption of the technology more than any regulatory provision. Today's 
conditional exclusion provides operators of petroleum refineries an 
option to consider. This does not mean that every petroleum refinery 
will adopt this technology as part of their operations, but it may mean 
that some will adopt the technology to provide for power or steam 
production less expensively, or for the generation of hydrogen used 
elsewhere in the petroleum refining process, or sold as a fuel or 
feedstock. What the rule does do is provide operational flexibility to 
allow petroleum refiners to adopt a technology that generates valuable 
products as a result of processing oil-bearing hazardous secondary 
materials that can and have historically been managed as solid and 
hazardous waste. With this rulemaking, petroleum refiners can decide 
whether to invest in the development of gasification with the knowledge 
that it will also allow them to increase their production efficiency 
and reduce their costs through the conversion of these materials.

VII. How Will These Regulatory Changes Be Administered and Enforced in 
the States?

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer their own hazardous waste

[[Page 68]]

programs in lieu of the federal program within the state. Following 
authorization, EPA retains enforcement authority under sections 3008, 
3013, and 7003 of RCRA, although authorized states have primary 
enforcement responsibility. The standards and requirements for state 
authorization are found at 40 CFR Part 271.
    Prior to enactment of the Hazardous and Solid Waste Amendments of 
1984 (HSWA), a state with final RCRA authorization administered its 
hazardous waste program entirely in lieu of EPA administering the 
federal program in that state. The federal requirements no longer 
applied in the authorized state, and EPA could not issue permits for 
any facilities in that state, since only the state was authorized to 
issue RCRA permits. When new, more stringent federal requirements were 
promulgated, the state was obligated to enact equivalent authorities 
within specified time frames. However, the new federal requirements did 
not take effect in an authorized state until the state adopted the 
federal requirements as state law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which 
was amended by HSWA, new requirements and prohibitions imposed under 
HSWA authority take effect in authorized states at the same time that 
they take effect in unauthorized states. EPA is directed by the statute 
to implement these requirements and prohibitions in authorized states, 
including the issuance of permits, until the state is granted 
authorization to do so. While states must still adopt HSWA related 
provisions as state law to retain final authorization, EPA implements 
the HSWA provisions in authorized states until the states do so.
    Authorized states are required to modify their programs only when 
EPA enacts 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). Therefore, authorized states may, but 
are not required to, adopt federal regulations, both HSWA and non-HSWA, 
considered less stringent than previous federal regulations.
    Today's exclusion is finalized pursuant to non-HSWA authority and 
is considered to be less stringent than the current federal 
requirements. Therefore, states will not be required to adopt and seek 
authorization for the finalized changes. EPA will implement the changes 
to the exemptions only in those states which are not authorized for the 
RCRA program. Nevertheless, EPA believes that this rulemaking has 
considerable merit, and we thus strongly encourage states to amend 
their programs and become federally-authorized to implement this rule.

VIII. What Are the Costs and Benefits of the Final Rule?

    The costs and benefits of any regulatory action are traditionally 
measured by the net change in social welfare that it generates. The 
Agency's economic assessment conducted in support of today's final rule 
evaluates costs, cost savings (benefits), waste quantities affected, 
and other impacts, such as environmental justice, children's health, 
unfunded mandates, regulatory takings, and small entity impacts. To 
conduct this analysis, we prepared a baseline characterization for 
waste management and gasification at petroleum refineries, developed 
and implemented a methodology for examining impacts, and followed 
appropriate guidelines and procedures for examining equity 
considerations, children's health, and other impacts. Because EPA's 
data are limited, the estimated findings from these analyses should be 
viewed as national, not site-specific impacts.
    Proper baseline specification is vital in the assessment of 
incremental costs, benefits, and other economic impacts associated with 
a rule that would expand the exclusion for oil-bearing hazardous 
secondary materials that are utilized to generate fuels and other 
chemicals. The baseline essentially describes the world absent any 
expanded exclusion. The incremental impacts of today's final rule are 
evaluated by predicting post-rule responses with respect to baseline 
conditions and actions. The baseline, as applied in this analysis, is 
assumed to be the point at which the final rule is published. A full 
discussion of baseline specifications is presented in the economic 
assessment document completed for this rule.\32\
---------------------------------------------------------------------------

    \32\ Assessment of the Potential Costs, Benefits, and Other 
Impacts of the Exclusion for Gasification of Petroleum Oil-Bearing 
Secondary Materials--Final Rule, August 2007.
---------------------------------------------------------------------------

    As outlined above, the final rule creates an exclusion for oil-
bearing hazardous secondary materials generated at a petroleum refinery 
if this material is used at a petroleum refinery as an input for the 
production of synthesis gas. Because not all petroleum refineries will 
elect to include a gasification system as part of their petroleum 
refinery, the impacts of the final rule will depend significantly on 
the number of petroleum refineries that decide to adopt the technology 
and use the exclusion and the baseline waste management practices of 
these petroleum refineries. To account for these factors in this 
analysis, a bottom-up analytic approach was developed for estimating 
impacts based on the decisions of individual petroleum refineries to 
exclude or not exclude their oil-bearing hazardous secondary materials 
under the final rule. The analysis of each affected petroleum refinery 
begins by estimating the likely costs and benefits associated with its 
potential use of the exclusion. A key assumption of the analysis is 
that a petroleum refinery will divert its oil-bearing hazardous 
secondary materials to gasification if the following two conditions 
apply: (1) The benefits realized by the petroleum refinery if it uses 
the exclusion exceed the related costs, and (2) the benefits realized 
by the gasification system receiving the petroleum refinery's oil-
bearing hazardous secondary materials exceed the costs associated with 
accepting this material.
    After determining whether a petroleum refinery is likely to divert 
its oil-bearing hazardous secondary materials to gasification, we 
estimate the total impacts associated with its decision to use or not 
use the exclusion. If the petroleum refinery is unlikely to use the 
exclusion, we assume zero impacts. If the analysis suggests that the 
petroleum refinery will use the exclusion, we estimate impacts as the 
sum of three items: (1) The savings that the petroleum refinery will 
experience by diverting its oil-bearing hazardous secondary materials 
to gasification, (2) savings for the petroleum refinery that receives 
this material and uses it as a feedstock in its gasification system, 
and (3) indirect third-party costs. Indirect third-party costs include 
increased virgin fuel and material costs for facilities that receive 
and manage the petroleum refinery's oil-bearing hazardous secondary 
materials in the baseline (i.e., prior to the promulgation of the final 
rule) and either burn it for energy recovery or recycle it to recover 
metals or other valuable materials.
    To complete our analysis and estimate the total impacts of the 
final rule, we summed the impacts associated with oil-bearing hazardous 
secondary materials diverted to gasification under the exclusion. In 
addition, we assessed the impacts of the rule under two scenarios to 
account for uncertainty in the operational status of gasification 
systems that are planned, but have not yet gone online: a low-capacity 
scenario reflecting existing gasification capacity

[[Page 69]]

and a high-capacity scenario reflecting existing and planned capacity.
    This rule is projected to result in a benefit to society in the 
form of net cost savings to the private sector, on a nationwide basis, 
thereby allowing for the more efficient use of limited resources 
elsewhere in the market. For more detail regarding the data sources, 
key assumptions, and any limitations associated with the analyses of 
the economic impacts, the reader is referred to the economic assessment 
document completed for this rule, which can be found in the docket to 
this rulemaking.
    As described in the methodology overview in EPA's economic 
assessment document, we estimated the impacts of the final rule under 
two gasification capacity scenarios: (1) A low-capacity scenario that 
reflects the capacity of the three petroleum refinery gasification 
systems that are known to be operating; and (2) a high-capacity 
scenario that reflects the capacity of these three systems plus two 
additional units that were planned as of 2003, but have not yet gone 
online. Results for both of these scenarios are presented as a range of 
the potential net social benefits of the rule, in order to help account 
for the uncertainty regarding the future operational status of planned 
units not yet in operation.\33\
---------------------------------------------------------------------------

    \33\ The IGCC unit located at the El Dorado, Kansas Refinery was 
used as part of this analysis. However, as of 2006, this unit is no 
longer in operation.
---------------------------------------------------------------------------

    The central conclusion of our analysis states that approximately 
324,300 tons of oil-bearing hazardous secondary materials generated by 
152 refineries would qualify for the exclusion each year. Of this 
quantity, petroleum refineries currently send approximately 205,500 
tons offsite for disposal or recycling; the remaining 118,800 tons are 
processed onsite. Of the 324,300 tons of oil-bearing hazardous 
secondary materials qualifying for the exclusion, between 123,300 and 
177,000 tons are likely to be excluded by petroleum refineries each 
year. This represents approximately 38 percent to 55 percent of the 
material eligible for the exclusion.
    We estimate that the rule will yield between $46.4 million and 
$48.7 million in net social benefits per year. Avoided waste management 
costs make up the most significant share of the benefits of the rule, 
followed by feedstock savings for gasification systems. Commercial 
waste management facilities that manage oil-bearing hazardous secondary 
materials in the baseline may experience annual revenue losses of $10.8 
million to $15.1 million under the final rule. Based on the limited 
data available on the revenues of these facilities, this loss 
represents a small fraction of their revenues. The impact of the final 
rule depends significantly on the cost of incineration. The impacts 
reflect the average cost of incinerating bulk sludge, as reported by 
the Environmental Technology Council (ETC). If we use the low end of 
ETC's cost range, the net social benefits of the rule decline to $5.2 
million to $25.5 million per year.\34\
---------------------------------------------------------------------------

    \34\ ETC, Incinerator and Landfill Cost Data, http://www.etc.org/costsurvey8.cfm, accessed September 8, 2006.
---------------------------------------------------------------------------

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is a ``significant regulatory action.'' It has been determined 
that this rule is a ``significant regulatory action'' because it raises 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order. Accordingly, EPA submitted this rule to the Office of Management 
and Budget (OMB) for review under Executive Order 12866 and any changes 
made in response to OMB recommendations have been documented in the 
docket for this action.
    In addition, EPA prepared an analysis of the potential costs and 
benefits associated with this action. As indicated above, the annual 
cost savings of the rule are estimated to be $46.4 million to $48.7 
million. This analysis is contained in the document ``Assessment of the 
Potential Costs, Benefits, and Other Impacts of the Exclusion for 
Gasification of Petroleum Oil-Bearing Secondary Materials--Final 
Rule.'' A copy of the analysis is available in the docket for this 
regulation.

B. 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. 
EPA is amending an existing exclusion from the definition of solid 
waste that applies to hazardous secondary materials generated at a 
petroleum refinery when these materials are inserted back into the 
petroleum refining process (see current exclusion found at 40 CFR 
261.4(a)(12)(i)). With today's final rule, the conditional exclusion 
will be revised to add ``gasification'' to the list of identified 
petroleum refinery processes into which hazardous secondary materials 
can be legitimately recycled. Materials excluded under 40 CFR 
261.4(a)(12)(i) are not solid wastes for purposes of Subtitle C 
regulation, and therefore are not (by definition) hazardous wastes from 
the point of generation. Therefore, requirements that normally apply to 
the management of hazardous wastes, such as notification or the use of 
a hazardous waste manifest, do not apply to these materials, provided 
the conditions of the exclusion are satisfied.
    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 in 40 CFR 
are listed in 40 CFR Part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq, 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. This analysis must be completed unless the agency is 
able to certify that the rule will not have a significant economic 
impact on a substantial number of small entities. Small entities 
include small businesses, small not-for-profit enterprises, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entities are defined as: (1) A small business as 
defined by the Small Business Administration's (SBA) regulations at 13 
CFR 121.201; (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

[[Page 70]]

owned and operated and is not dominant in its field.
    After considering the economic impacts of today's 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 rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a 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.
    The final rule is projected to result in benefits/cost savings for 
those petroleum refineries that use the exclusion. In addition, those 
petroleum refineries that choose not to take advantage of the subject 
exclusion would experience no direct impact from this final rule. 
Consequently, the rule is not expected to adversely affect small 
entities that generate oil-bearing hazardous secondary materials 
eligible for the exclusion. Nevertheless, we developed facility-
specific impact estimates for petroleum refineries that may be 
classified as small entities to show how they would likely benefit from 
the final rule. The SBA considers a petroleum refinery to be a small 
business if it has ``no more than 1,500 employees or more than 125,000 
barrels per calendar day total Operable Atmospheric Crude Oil 
Distillation capacity.'' Based on the available data, it is not 
feasible to measure the distillation capacities of each refinery 
affected by the rule; therefore, we relied on facility employment data 
to determine which petroleum refineries are small entities. Our 
analysis of employment data suggests that 37 of the 152 refineries 
affected by the rule are small entities.
    The benefits (cost savings) of the final rule on each small 
business are expected to range from $0 to $2.0 million per year. It is 
further estimated that the aggregate small entity impacts total $2.1 
million to $2.5 million per year in cost savings, which represents 4.3 
to 5.4 percent of the annual impact of the final rule. Similarly, the 
quantity of material eligible for the exclusion that is generated by 
small businesses, 16,895 tons, accounts for 5.2 percent of the total 
oil-bearing hazardous secondary materials tonnage eligible for the 
exclusion. We have therefore concluded that today's final rule will 
relieve regulatory burden for affected small entities.

D. 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 
generally must prepare a written statement, 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. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. 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 the 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.
    Based on these criteria set forth by the UMRA, the final rule does 
not contain a significant unfunded mandate. As reported in the analytic 
results presented above, the rule is not likely to result in annualized 
costs of $100 million or more, either for the private sector or for 
state, local, and tribal governments.
    Today's rule contains no federal mandates (under the regulatory 
provisions of Title II of the UMRA) for state, local, or tribal 
governments or the private sector, as the rule imposes no enforceable 
duty on any State, local or tribal governments or the private sector. 
Furthermore, EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Thus today's rule is not subject to the requirements of 
sections 202 and 205 of UMRA.

E. Executive Order 13132: Federalism

    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 final 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, because it will not impose any 
requirements on states or any other level of government. Thus, the 
requirements of Section 6 of the Executive Order do not apply to this 
rule.

F. 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 9, 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.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. No Tribal 
governments are known to own or operate petroleum refineries that 
generate oil-bearing hazardous secondary materials subject to the final 
rule. Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children From Environmental 
Health

[[Page 71]]

Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies to any 
rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have 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 considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This final rule is not subject 
to Executive Order 13045 because it does not establish an environmental 
standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule 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. On the contrary, 
this rule is expected to result in energy savings, as described below.
    EPA estimates that of the 324,300 tons of oil-bearing hazardous 
secondary material qualifying for the exclusion, approximately 36,735 
tons are currently managed through energy recovery in the baseline. 
Based on the results of our analysis, we estimate that between 3,700 to 
18,700 tons of the 36,735 tons currently being reported as being 
recovered (e.g., managed) for energy recovery will be diverted to 
gasification at petroleum refineries as a result of the final rule. 
This represents an energy loss of 19,800 to 101,300 MMBtu for 
facilities that manage this material for energy recovery in the 
baseline. This is the equivalent of 3,400 to 17,500 barrels of crude 
oil per year.\35\ The petroleum refineries that gasify this oil-bearing 
hazardous secondary material under the final rule, however, would use 
the resulting synthesis gas as a fuel for the production of power or 
other petroleum products, which would (at least partially) offset the 
19,800 to 101,300 MMBtu energy loss mentioned above. Moreover, 
gasification of the 119,600 to 158,300 tons of excluded material not 
burned for energy recovery in the baseline would yield additional 
energy savings. Assuming that all of the energy content of this 
material is retained in the resulting synthesis gas, the gasification 
of this material represents energy savings of 648,300 to 858,000 MMBtu 
per year. Therefore, accounting for the estimated energy loss of 19,800 
to 101,300 MMBtu associated with oil-bearing hazardous secondary 
materials burned for energy recovery in the baseline, this rule could 
yield a net energy savings ranging from 628,500 to 756,700 MMBtu per 
year.
---------------------------------------------------------------------------

    \35\ According to the U.S. Energy Information Administration 
(EIA) Annual Energy Outlook 2006, Table A2, one barrel of crude oil 
produced has a heat content of 5.8 million Btu.
---------------------------------------------------------------------------

I. 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, 12(d) (15 U.S.C. 272 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 final rule does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment.
    Under the final rule, EPA estimates that 123,000 to 177,000 tons of 
oil-bearing hazardous secondary materials will be diverted to 
gasification processes from their baseline disposition at hazardous 
waste treatment, storage, and disposal facilities (TSDFs). As such, the 
final rule will concentrate the processing of excluded material at the 
limited number of petroleum refineries that could potentially use this 
material as a feedstock under the final rule. However, EPA does not 
believe that gasification of this material represents a greater risk to 
the public than baseline management practices. Rather than managing the 
excluded material as hazardous waste and transporting it to more widely 
dispersed TSDFs, as is currently the case (e.g., under the baseline), 
the final rule would help limit distribution of these materials such 
that they are instead managed at their source of generation (e.g., 
petroleum refineries).
    EPA also assessed the demographic characteristics of populations 
living within a one-mile radius of petroleum refineries with 
gasification systems using geo-coded data from the U.S. Census Bureau. 
This analysis shows that the areas surrounding gasification systems 
affected by the rule have disproportionately high minority and low-
income populations when compared to the national average. However, 
based on a number of published studies, areas in close proximity to 
TSDFs and combustion facilities also have disproportionately high 
minority and low-income populations that are similar to or greater than 
those of petroleum refineries with gasification systems. For instance, 
among the individuals living within one mile of the existing and 
planned gasification systems included in our analysis, 15.8 percent are 
low-income individuals, compared to 15.7 percent and 22.3 percent near 
TSDFs and hazardous waste combustion facilities, respectively. 
Similarly, 28.1 percent of the individuals living near existing and 
planned gasification systems are minorities, compared to 27.2 percent 
living near TSDFs and 38.3 percent living near hazardous waste 
combustion facilities. These findings show that the percentages of low-
income and minority populations near TSDFs are similar to or greater 
than those of populations living near petroleum refineries with 
gasification systems.
    The implication of our analyses is that low-income and minority 
populations

[[Page 72]]

will not bear a disproportionate share of any human health or 
environmental effects associated with shifting the processing of 
excluded oil-bearing hazardous secondary materials to gasification 
systems. Furthermore, as less oil-bearing hazardous secondary materials 
will be received by TSDFs and hazardous waste combustion facilities, 
low-income and minority populations living near these facilities would 
likely experience a potential reduction in risk under the final rule.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. A major rule 
cannot take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective February 1, 2008.

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

    Excluded hazardous waste, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Dated: December 20, 2007.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, 40 CFR chapter I is amended as 
follows:

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM; GENERAL

0
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, 6938, 6939, and 6974.

Subpart B--Definitions

0
2. Section 260.10 is amended by adding in alphabetical order the 
definition of ``Gasification'' to read as follows:


Sec.  260.10  Definitions.

* * * * *
    Gasification. For the purpose of complying with 40 CFR 
261.4(a)(12)(i), gasification is a process, conducted in an enclosed 
device or system, designed and operated to process petroleum feedstock, 
including oil-bearing hazardous secondary materials through a series of 
highly controlled steps utilizing thermal decomposition, limited 
oxidation, and gas cleaning to yield a synthesis gas composed primarily 
of hydrogen and carbon monoxide gas.
* * * * *

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
3. The authority citation for part 261 continues to read as follows:

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

0
4. Section 261.4 is amended by revising paragraph (a)(12)(i) to read as 
follows:


Sec.  261.4  Exclusions.

    (a) * * *
    (12)(i) Oil-bearing hazardous secondary materials (i.e., sludges, 
byproducts, or spent materials) that are generated at a petroleum 
refinery (SIC code 2911) and are inserted into the petroleum refining 
process (SIC code 2911--including, but not limited to, distillation, 
catalytic cracking, fractionation, gasification (as defined in 40 CFR 
260.10) or thermal cracking units (i.e., cokers)) unless the material 
is placed on the land, or speculatively accumulated before being so 
recycled. Materials inserted into thermal cracking units are excluded 
under this paragraph, provided that the coke product also does not 
exhibit a characteristic of hazardous waste. Oil-bearing hazardous 
secondary materials may be inserted into the same petroleum refinery 
where they are generated, or sent directly to another petroleum 
refinery and still be excluded under this provision. Except as provided 
in paragraph (a)(12)(ii) of this section, oil-bearing hazardous 
secondary materials generated elsewhere in the petroleum industry 
(i.e., from sources other than petroleum refineries) are not excluded 
under this section. Residuals generated from processing or recycling 
materials excluded under this paragraph (a)(12)(i), where such 
materials as generated would have otherwise met a listing under subpart 
D of this part, are designated as F037 listed wastes when disposed of 
or intended for disposal.
* * * * *
[FR Doc. E7-25240 Filed 12-31-07; 8:45 am]
BILLING CODE 6560-50-P