[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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