[Federal Register Volume 76, Number 19 (Friday, January 28, 2011)]
[Proposed Rules]
[Pages 5107-5110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-1906]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[EPA-HQ-RCRA-2008-0808; FRL-9260-2]
RIN-2050-AE78


Regulation of Oil-Bearing Hazardous Secondary Materials From the 
Petroleum Refining Industry Processed in a Gasification System To 
Produce Synthesis Gas; Tentative Determination To Deny Petition for 
Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of action--tentative determination to deny petition for 
reconsideration.

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SUMMARY: EPA is providing notice of, and soliciting written comments 
on, a tentative determination to deny an administrative petition 
submitted by the Sierra Club under RCRA section 7004. EPA issued an 
earlier notice denying this same petition in November 2008. However, 
the Agency at that time failed to comply with notice and comment 
provisions in its regulations. Accordingly, we are now giving the 
public the opportunity to provide comments on this tentative decision. 
This petition requests EPA to reconsider the final rule, ``Regulation 
of Oil-Bearing

[[Page 5108]]

Hazardous Secondary Materials from the Petroleum Refining Industry 
Processed in a Gasification System to Produce Synthesis Gas,'' 
published in the Federal Register on January 2, 2008. The EPA 
considered the petition, along with information contained in the 
rulemaking docket, and has tentatively decided to deny the petition. In 
a letter from EPA Assistant Administrator Mathy Stanislaus dated 
January 21, 2011, EPA provided the petitioner with its tentative 
decision to deny the petition for reconsideration. The letter explains 
EPA's reasons for tentatively deciding to deny the petition. After 
evaluating all public comments, as well as any other information in the 
rulemaking record, EPA will publish either a final denial of the 
petition or issue a proposed rule to amend or repeal the regulation.

DATES: Submit comments on or before March 14, 2011.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2008-0808, by one of the following methods:
     Electronic docket at: http://www.regulations.gov: Follow 
the on-line instructions for submitting comments.
     E-mail: Comments may be sent by electronic mail (e-mail) 
to [email protected], Attention Docket ID No. EPA-HQ-RCRA-2008-0808. 
In contrast to EPA's electronic public docket, EPA's e-mail system is 
not an ``anonymous access'' system. If you send an e-mail comment 
directly to the Docket without going through EPA's electronic public 
docket, EPA's e-mail system automatically captures your e-mail address. 
E-mail addresses that are automatically captured by EPA's e-mail system 
are included as part of the comment that is placed in the official 
public docket, and made available in EPA's electronic public docket.
     Fax: Comments may be faxed to 202-566-0272; Attention 
Docket ID No. EPA-HQ-RCRA-2008-0808.
     Mail: Send your comments to the RCRA Docket (28221T), 
Attention Docket ID No. EPA-HQ-RCRA-2008-0808, Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460. Please 
include a total of two copies.
     Hand Delivery: Deliver two copies of your comments to the 
RCRA Docket, Attention Docket ID No. EPA-HQ-RCRA-2008-0808, EPA, EPA 
West Building, Room 3334, 1301 Constitution Ave., NW., Washington, DC 
20460. Such deliveries are only accepted during the Docket's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2008-0808. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site 
is an ``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through http://www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For additional instructions on submitting 
comments, go to the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Alan Carpien, U.S. Environmental 
Protection Agency, Office of General Counsel, Mail Code 2366A, 1200 
Pennsylvania Ave., NW., Washington, DC 20460; telephone (202) 564-5507; 
or [email protected].

SUPPLEMENTARY INFORMATION:

How can I get copies of this document and other related information?

    This Federal Register notice, the petition for reconsideration and 
the letter providing a tentative determination for denial of the 
petition for reconsideration are available in a docket EPA has 
established for this action under Docket ID No. EPA-HQ-RCRA-2008-0808. 
All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some 
information may not be 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, EPA West 
Building, Room 3334, 1301 Constitution Avenue, NW., Washington, DC. The 
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. A reasonable fee may be charged for copying 
docket materials.

Appendix: Letter to Earthjustice Tentatively Denying the Request for a 
Petition for Reconsideration

Ms. Lisa Gollin Evans, Earthjustice, 21 Ocean Avenue, Marblehead, MA 
01945.

Dear Ms. Evans:

    This is in response to the petition for reconsideration you 
submitted, dated April 1, 2008, to the U.S. Environmental Protection 
Agency (EPA) under the Resource Conservation and Recovery Act (RCRA) 
Sec.  7004(a), 42 U.S.C. 6974(a), on behalf of the Sierra Club and 
the Louisiana Environmental Action Network (LEAN). Sierra Club and 
LEAN request that EPA reconsider the final rule, ``Regulation of 
Oil-Bearing Hazardous Secondary Materials from the Petroleum 
Refining Industry Processed in a Gasification System to Produce 
Synthesis Gas'' (Gasification Rule). This final rule was published 
in the Federal Register on January 2, 2008 (73 FR 57, et seq.)
    Your petition raises both procedural (notice and comment) and 
substantive grounds for seeking the agency's reconsideration of the 
Gasification Rule. For the reasons stated below, EPA has made a 
tentative determination to deny the petition for reconsideration.\1\ 
In accordance with the regulatory requirements of 40 CFR 260.20, EPA 
is providing notice of and soliciting written comments on this 
tentative determination to deny your petition for reconsideration in 
the Federal Register.
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    \1\ We would also note that section 7004(a) of RCRA provides 
that any person may petition the Administrator for the promulgation, 
amendment or repeal of any regulation under the Act. However, in 
your petition for reconsideration, you fail to state whether the 
Sierra Club and LEAN are requesting whether EPA amend or repeal the 
Gasification Rule.
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    EPA notes that we issued a letter with essentially the same 
substantive response as stated in this letter in November 2008.\2\

[[Page 5109]]

However, the Agency at that time failed to comply with notice and 
comment provisions in its regulations at 40 CFR 260.20. Accordingly, 
we are now giving the public the opportunity to provide comments on 
this tentative decision. A notice is appearing in the Federal 
Register allowing the public to respond to this decision. The 
comment period will be 45 days from the date of publication of the 
Federal Register notice.
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    \2\ Letter to Lisa Gollin Evans, Earthjustice, from Susan Parker 
Bodine, EPA Assistant Administrator, dated November 14, 2008. This 
letter is available in the docket (docket item EPA-HQ-RCRA-2008-
0808-0004).
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Notice and Comment Issues

    Your petition states as grounds for reconsideration that the 
rule violates the notice and comment requirements of the 
Administrative Procedure Act (APA) set forth at 5 U.S.C. 553. Your 
basis for this assertion is that EPA ``relied on'' a proposal 
suggested in a 1998 Federal Register notice \3\ and ``not on the 
2002 proposed rule'' \4\ to formulate the Gasification Rule. You 
suggest that, as a result, the final rule ``is not a ``logical 
outgrowth'' of the agency's proposed rule'' (Petition at pg. 7) and, 
therefore, ``the public was denied the opportunity for notice and 
comment in several critical areas.'' (Petition at pg. 8)
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    \3\ Notice of Data Availability (NODA), 63 FR 38139 (July 15, 
1998).
    \4\ ``Regulation of Hazardous Oil-Bearing Secondary Materials 
From the Petroleum Refining Industry and Other Hazardous Secondary 
Materials Processed in a Gasification System To Produce Synthesis 
Gas,'' 67 FR 13684 (March 25, 2002).
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    The ``critical areas'' to which you refer are noted below.
    (1) You assert that the Gasification Rule does not contain 
``chemical and physical specifications of the synthesis gas fuel 
product that is produced by gasifying the oil-bearing hazardous 
secondary materials.'' (Petition at pg. 8-10) In support of this 
assertion, you refer to statements in the preamble to the March 2002 
proposal for the Gasification Rule (67 FR 13684, et seq.) and one 
statement in the January 2, 2008, final rule. The statements in the 
March 2002 proposal discuss various reasons why EPA thought, at the 
time, there should be chemical and physical specifications for 
synthesis gas produced and also express concerns as to what 
concentrations of metals actually exist in synthesis gas.
    (2) You assert that the Gasification Rule ``fundamentally alters 
the definition of gasification and entirely removes proposed 
conditions pertaining to operation of the gasifier,'' particularly 
requirements for slagging inorganic feed at temperatures above 2,000 
degrees C. (Petition at pg. 10)
    (3) You assert that the Gasification Rule is not a logical 
outgrowth of the proposed rule and that it is insufficiently 
protective of human health and the environment because it did not 
``require that co-products and residues generated by the 
gasification system meet the Universal Treatment Standards if these 
materials are applied to the land,'' even though the agency had 
proposed such conditions in March 2002. (Petition at pg. 10-12)

Arbitrary and Capricious Issues

    You also make several arguments as to why the Gasification Rule 
is arbitrary and capricious. Specifically, you argue that EPA's 
decision not to impose the treatment requirements, for which you 
claim notice and comment was inadequate, was arbitrary and 
capricious based on certain details regarding particular chemicals. 
(Petition at pg. 12-13) In addition, you argue that EPA is arbitrary 
and capricious for relying on the Toxicity Characteristic Leaching 
Procedure (TCLP) to predict leaching characteristics of gasification 
residues. (Petition at pg. 15)
    Finally, you also argue that EPA fails to regulate facilities 
that burn fuel made from hazardous wastes in contravention of RCRA 
section 3004(q), 42 U.S.C. 6924(q). (Petition at pg. 13-15) This 
argument presupposes that the material fed into the gasifier is a 
solid and hazardous waste as opposed to a non-waste material that is 
being recycled.

Response

    EPA does not believe that you have presented the agency with any 
new information that would suggest or otherwise require that we 
reconsider the Gasification Rule, nor have you raised any issues 
that have not already been raised by the comments in the rulemaking 
process. We also believe that the Gasification Rule meets the APA 
notice and comment requirements and, therefore, disagree with your 
view that the agency did not provide adequate notice to the public 
and an opportunity to comment on the provisions of the final rule.
    In particular, in August 1998, EPA decided not to include 
gasification in the petroleum refinery exclusion when it issued the 
final rule ``Hazardous Waste Management System; Identification and 
Listing of Hazardous Waste; Petroleum Refining Process Wastes; Land 
Disposal Restrictions for Newly Identified Wastes; And CERCLA 
Hazardous Substance Designation and Reportable Quantities,'' 
(``Petroleum Listing Rule''), 63 FR 42110, et seq. The rules, issued 
in 1998, which were limited to the petroleum refinery industry, only 
require that the materials reinserted into the petroleum refining 
process not be speculatively accumulated nor be placed on the land 
prior to reuse. In the March 2002 proposal, EPA made it very clear 
that it was proposing to put gasification ``on the same regulatory 
footing (i.e., excluded) as other hazardous secondary materials 
returned to a petroleum refining process'' in the 1998 rule. In 
March 2002, EPA proposed a definition of gasification systems to 
ensure that the systems were not actually waste treatment systems, 
but true synthesis gas production facilities. This definition 
included certain operating conditions for the gasifiers, including a 
condition that the gasifier slag organic feed materials at 
temperatures above 2,000 degrees C. The proposal also suggested 
specifications as to various contaminants that the fuels produced 
contained, and specifications regarding residues. See 67 FR at 
13693-96. These last three conditions are those to which you refer 
in your Petition for Reconsideration, as noted above.
    Importantly, the March 2002 Gasification Proposal specifically 
provided notice that the provisions of the 1998 NODA were still 
being considered. It is significant that your petition for 
reconsideration ignores this discussion in the March 2002 proposal. 
In particular, the March 2002 proposal discusses in detail that the 
agency had requested comment as to whether the exclusion from the 
definition of solid waste issued in 1998 should apply to the 
recycling of oil-bearing materials into gasification systems at 
petroleum refineries and that the gasification and petroleum 
industries favored this exclusion (63 FR 13685-86, footnote 2). We 
also noted that reinserting secondary materials into gasification 
systems ``is analogous'' to the August 1998 exclusion for 
reinsertion of other petroleum residuals into the refining process. 
Id. at 13686.
    In the Gasification Rule, EPA scaled back on its plans for a 
more ``ambitious'' exclusion and returned largely to its original 
views regarding exclusions for hazardous secondary materials 
returned to the petroleum refining system. See 73 FR 58-59. The 
final rule retained the conditions for speculative accumulation and 
land placement, and added a definition of ``gasifier'' to ensure 
that the gasification was indeed recycling of a product and not 
waste treatment. The final rule, however, as you noted, did not 
contain the slagging requirement in the definition, nor the fuel 
specifications or the residue requirements. These changes were the 
result of the agency's deliberations on each condition that took 
into account all of the comments received. The preamble to the final 
rule discussed in detail the fact that EPA received comments ranging 
from demands for full hazardous waste regulation to those arguing 
that the agency should not be regulating gasification at all since 
it was an integral part of the petroleum refining process and did 
not constitute waste management. See 73 FR at 59. Among the comments 
were those that ``expressed concern with one or more of the proposed 
conditions'' and, even if they disagreed with imposing any 
conditions, provided ``comments on the specific conditions 
proposed.'' \5\ Id.
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    \5\ Your reference to an inadequacy of notice and comment with 
respect to the synthesis gas specification (Petition at pg. 9) is 
taken out of context. You claim that we only received comments on 
the sufficiency of the specification but, in fact, EPA received a 
range of comments some of which claimed the specification was too 
lenient, but others argued against establishing any specification. 
See 73 FR at 64.
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    The variety and nature of comments submitted demonstrates that 
EPA had a record upon which to make a decision that was based on a 
wide range of opinions and information. Indeed, it is plain that 
EPA's proposal succeeded in obtaining opinions and views from a wide 
range of interests and allowed the agency to consider the form of 
the final rule carefully. In fact, as noted above, EPA decided on a 
far less ambitious final rule for a number of reasons. We understand 
that you may disagree with EPA's conclusions, but we believe that 
the regulatory choices made by the agency are reasonable based on 
the rulemaking record. In the absence of any new information, it 
would not be useful for the agency to revisit

[[Page 5110]]

evidence and arguments it has already carefully considered. In our 
view, the notice and comment issues you have raised are actually 
discussions of the merits of the agency's decision with which you 
disagree. See 73 FR 61-67.\6\ In fact, you do not point to any 
information which EPA lacks to make its decision.
    Finally, EPA disagrees with your legal argument that the final 
rule does not comport with RCRA section 3004(q). (Petition at pg. 
13-15) Because EPA is providing an exclusion from the definition of 
solid waste for the hazardous secondary materials fed to gasifiers 
subject to this rule, EPA does not implicate the provisions of 
section 3004(q) of RCRA, 42 U.S.C. 6924(q), which requires that the 
hazardous secondary material first be a solid waste.
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    \6\ We also disagree with your assertion that the Agency 
improperly relied on the use of the Toxicity Characteristic Leaching 
Procedure (TCLP). The TCLP is a duly promulgated regulation of EPA 
and has not been challenged within the appropriate statutory time 
period for challenging regulations. EPA's use of the TCLP in this 
regulation is entirely appropriate.
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    As previously stated, a notice will be published in the Federal 
Register announcing the agency's tentative decision to deny your 
petition for reconsideration and will provide the public a 45 day 
period to comment After considering any comments received, the 
agency will make a final decision on the merits of your petition.
    If you should have any questions, you may contact Alan Carpien, 
EPA's Office of General Counsel at (202) 564-5507.
 Sincerely,

Mathy Stanislaus
Assistant Administrator, Office of Solid Waste and Emergency 
Response

    Dated: January 19, 2011.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.
[FR Doc. 2011-1906 Filed 1-27-11; 8:45 am]
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