[Federal Register Volume 77, Number 72 (Friday, April 13, 2012)]
[Rules and Regulations]
[Pages 22226-22229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8921]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260 and 261
[EPA-HQ-RCRA-2008-0808; FRL 9658-3]
RIN-2050-AE78
Regulation of Oil-Bearing Hazardous Secondary Materials From the
Petroleum Refining Industry Processed in a Gasification System To
Produce Synthesis Gas; Final Determination To Deny Administrative
Petition
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; final determination to deny administrative
petition.
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SUMMARY: EPA is providing notice of a final determination to deny an
administrative petition submitted by Earthjustice on behalf of the
Sierra Club and the Louisiana Environmental Action Network under the
Resource Conservation and Recovery Act. The petition requested EPA to
review the final rule, ``Regulation of Oil-Bearing 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.
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:
I. General Information
A. How can I get copies of this document and other related information?
1. Docket. EPA has established a docket for this action under
Docket ID No. EPA-HQ-RCRA-2008-0808. Publicly available docket
materials are available either electronically through
www.regulations.gov or in hard copy at the RCRA Docket in the EPA
Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave.
NW., Washington, DC. The EPA Docket Center Public Reading Room 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.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/.
II. Summary of the Action
EPA is providing notice of a final determination to deny an
administrative petition submitted by Earthjustice on behalf of the
Sierra Club and the Louisiana Environmental Action Network under the
Resource Conservation and Recovery Act. EPA issued an earlier notice
tentatively denying this same petition in January 2011 and solicited
written comments on this tentative decision (76 FR 5107, Jan. 28,
2011). The petition requested EPA to review the final rule,
``Regulation of Oil-Bearing 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 (73 FR 57). The EPA has considered the petition, along with
information contained in the rulemaking docket, as well as the five
public comments received on the tentative denial. After evaluating all
of this information, EPA has decided to issue a final determination
denying the petition. In a letter from EPA Assistant Administrator
Mathy Stanislaus dated April 3, 2012, EPA provided the petitioner with
its final decision to deny the administrative petition. The letter,
which is included as an Appendix to this Federal Register document
explains EPA's reasons for denying the petition, as well as discussing
the other comments received on the tentative denial.
Appendix: Letter to Earthjustice Denying Administrative Petition
Ms. Lisa Gollin Evans
Earthjustice
21 Ocean Avenue
Marblehead, MA 01945
Dear Ms. Evans:
This letter is written to inform you of our final determination
to deny the April 1, 2008 administrative petition you submitted to
the U.S. Environmental Protection Agency (EPA or the agency) under
the Resource Conservation and Recovery Act (RCRA) Sec. 7004(a), 42
U.S.C. Sec. 6974(a) on behalf of the Sierra Club and the Louisiana
Environmental Action Network (LEAN) (hereafter referred to as
``Sierra Club''). Sierra Club requested that EPA review 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.). The petition raised both procedural (notice and comment) and
substantive grounds for seeking the agency's review of the
Gasification Rule. EPA has made a final determination to deny the
petition and in accordance with the regulatory requirements of 40
CFR 260.20, EPA is providing notice of this determination to deny
the petition in the Federal Register.
A tentative denial was issued on January 19, 2011, and published
in the Federal Register on January 28, 2011 (76 FR 5107).
[[Page 22227]]
Sierra Club filed comments on this tentative denial (hereafter
referred to as ``SC Comments'').\1\ This final denial responds to
the additional points raised in the SC Comments that were not raised
in previous submittals and incorporates all previous agency
responses to your original petition.\2\
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\1\ See docket item EPA-HQ-RCRA-2008-0808-0017.
\2\ We note that Sec. 7004(a) of RCRA, 42 U.S.C. Sec. 6974,
provides that any person may petition the Administrator for the
promulgation, amendment or repeal of any regulation under the Act.
While your original petition failed to state whether you were
requesting that EPA amend or repeal the Gasification Rule, the SC
Comments request the agency ``revoke the Rule in its entirety.'' SC
Comments at p. 2. EPA also received another comment from a number of
environmental organizations and persons (EPA-HQ-RCRA-2008-0808-0018)
requesting that the agency revoke the rule. This comment is regarded
by the agency as general support for the SC comments, in that it
mirrored the concerns raised in the comments submitted by
Earthjustice. (See comment EPA-HQ-RCRA-2008-0808-0018 for a complete
list of the environmental organizations and persons that submitted
this comment.)
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This final denial to your petition adopts all of the reasoning
stated in our letter of November 2008 \3\ and the January 2011
tentative denial, both of which are incorporated into this reply. We
find no new substantive arguments in your comments that would cause
the agency to grant your administrative petition.
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\3\ Letters to Lisa Gollin Evans and James S. Pew, 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 and EPA-HQ-RCRA-2008-0808-0006).
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In general, you argue that EPA has improperly and arbitrarily
removed hazardous wastes from RCRA's comprehensive cradle-to-grave
regulatory system and that EPA's Gasification Rule is directly
contrary to what you describe as RCRA's statutory mandate to
regulate the treatment, storage, and disposal of hazardous waste
derived fuels and the burning of hazardous wastes. For the first
time, in the proceeding on this rule, you also claim that it
frustrates the Clean Air Act. You argue, furthermore, that EPA's
``finding'' that this rule will not jeopardize human health and the
environment is unsupported by the administrative record for this
rulemaking. Finally, you argue that the Gasification Rule was
promulgated in violation of the Administrative Procedure Act (APA).
EPA disagrees with your comments. The agency has properly
excluded the materials in question from RCRA Subtitle C regulation
and does not expect adverse effects on human health or the
environment from this regulation. EPA finds that you have not
presented any new information that would suggest or otherwise
require that we review the Gasification Rule, nor have you raised
any issues that have not already been raised by the comments in the
rulemaking process. EPA also finds that the Gasification Rule meets
the notice and comment requirements of the APA and, therefore,
disagrees 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.\4\
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\4\ The American Petroleum Institute (API) (docket item EPA-HQ-
RCRA-2008-0808-0010) and the Metals Industries Recycling Coalition
(MIRC) (docket item EPA-HQ-RCRA-2008-0808-0013) also filed comments
supporting the Gasification Rule. EPA accepts the reasoning in the
comments in support of the decision with the exception that the
agency does not agree that the residuals inserted into the
gasification process ``may not be considered solid or hazardous
wastes under controlling case law.'' API comments at p. 9. Rather,
EPA has determined that it has the discretion to exclude the
residuals from the definition of solid waste. A comment submitted by
Industry Professionals for Clean Air and Air Alliance Houston
(docket item EPA-HQ-RCRA-2008-0808-0012) expresses concern regarding
monitoring and regulation of gasification processes. This is simply
a general comment that EPA acknowledges regarding the appropriate
monitoring and regulation under both RCRA and the Clean Air Act for
these facilities.
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Legal Arguments
EPA has discussed in earlier responses that it disagrees with
Sierra Club's legal argument that the final rule does not comport
with RCRA Sec. 3004(q), 42 U.S.C. Sec. 6924(q). Because EPA is
providing an exclusion from the definition of solid waste for oil-
bearing hazardous secondary materials fed to gasifiers subject to
this rule, EPA does not implicate the provisions of section 3004(q),
which requires that the hazardous secondary material first be a
solid waste. Nothing cited in your legal argument refutes this
point. Discussion in SC Comments at pp. 6-7 merely provides a
cumulative argument that burning of hazardous wastes must be
regulated. Since the oil-bearing hazardous secondary materials are
not considered solid wastes, they cannot be hazardous wastes.
Further, Sierra Club raises a legal argument that has already
been considered and rejected by the D.C. Circuit. In American Mining
Congress (AMC) v. EPA, 824 F2d. 1177, 1187-89, the agency relied
upon section 3004(q) to defend a broad definition of solid waste.
The court specifically considered whether the exemption in section
3004(q)(2)(A) for ``petroleum refinery wastes containing oil which
are converted into petroleum coke at the same facility at which such
wastes were generated'' implies that the term ``solid waste'' may
include materials that have not been disposed of, but that are
destined for reuse in another process. The court concluded that the
exemption does not carry that implication, and section 3004(q) only
applies to materials that have already become hazardous. See AMC at
1188 & n.16.
Plainly, section 3004(q) directs EPA to regulate all facilities
that ``produce a fuel from hazardous wastes'' or ``burn, for
purposes of energy recovery'' any such fuel. 42 U.S.C. Sec. 3004.
Moreover, EPA agrees with the thrust of your comment that a recycled
material does not become a non-waste simply because it is burned or
processed to produce a fuel. Rather, the issue is whether the
recycled material is discarded.
The SC Comments (pp. 8-10) seem to imply that case law says that
burning of recycled secondary materials is a waste activity,
regardless. However, none of the cases cited deal with burning of
material. In fact, the only case in the United States Court of
Appeals that deals with whether certain burning of material is a
waste found that the burning was not a waste activity. See Safe Air
For Everyone v. Waynemeyer (``Safe Air''), 373 F.3d 1035 (9th Cir.
2004) (Kentucky bluegrass stubble burned to return nutrients to the
soil is not a solid waste).
Your argument, including your discussions of the Clean Air Act,
is ultimately based on your ``assertion'' that, in turn, EPA
believes material inserted into a gasifier is not discarded. EPA
disagrees. The agency, however, stands on the record developed in
the rule for its determination that the recycled oil-bearing
hazardous secondary material excluded from the definition of solid
waste in this rule is not discarded.
For the first time in the SC Comments, you claim that the
gasification rule is ``contrary to and frustrates the purposes'' of
the Clean Air Act. EPA does not understand the relevance of the
Clean Air Act to this proceeding, although coverage under the Clean
Air Act may be an issue in other proceedings. As noted above, the
issue in this case is simply whether the recycled oil-bearing
hazardous secondary material inserted into the gasifier is
discarded. As a result of the Gasification Rule, the gasifiers would
be subject to Clean Air Act Sec. 112 (42 U.S.C. Sec. 7412) because
EPA has determined that the material has not been discarded.
At least one of the arguments on the Clean Air Act is taken out
of context. See SC Comments at pp. 10-12. As one aspect of its
determination that gasification is not discard, EPA responded to
public comments, which argued that ``gasification * * * is more a
waste management process involving incineration than a petroleum
refining process'' by comparing gasification to true waste
management incineration. See 73 FR at 61. The SC Comments, however,
discuss whether gasification involves combustion--a matter not
relevant to the Gasification Rule. See SC Comments at pp. 11-12.
Even if combustion occurs, the issue is whether this is a waste
management activity or, as EPA found, a ``component of fuel
manufacturing operations at a petroleum refinery.'' Id. The
occurrence of combustion, by itself, does not render material a
solid waste, if the Agency determines that this aspect is part of
the manufacturing process and does not involve discard of the
material.
Notice and Comment Issues
Your petition states that the rule violates the notice and
comment requirements of the APA. Your basis for this assertion is
that EPA ``relied on'' a proposal suggested in a 1998 Federal
Register notice \5\ and ``not on the 2002 proposed rule'' \6\ 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 p. 7) and, therefore, ``the public
[[Page 22228]]
was denied the opportunity for notice and comment in several
critical areas.'' (Petition at p. 8)
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\5\ Notice of Data Availability (NODA), 63 FR 38139 (July 15,
1998).
\6\ ``Regulation of Hazardous Oil-Bearing Secondary Materials
From the Petroleum Refining Industry and Other Hazardous Secondary
Materials Processed in a Gasification System To Produce Synthesis
Gas; Proposed Rule,'' 67 FR 13684 (March 25, 2002).
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The ``critical areas'' to which you refer in the petition 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 pp. 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. The SC
Comments reiterate this issue at pp. 14-15.
(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 p. 10). These comments were reiterated in
the SC Comments at pp. 15-17.
(3) You assert that the Gasification Rule 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 pp. 10-12). The
SC Comments discuss these issues at pp. 17-18.
The SC Comments (at p. 18) acknowledge that the original
petition ``enumerated'' these APA violations. EPA responded to these
arguments in both the November 2008 letter and the January 2011
tentative denial, and believes it is not necessary to repeat those
responses in this final denial, and simply incorporates by reference
those responses in this denial. In summary, in the Gasification
Rule, EPA scaled back on its plans for a more ``ambitious''
exclusion than proposed in March 2002 and returned largely to its
original views regarding an exclusion for oil-bearing hazardous
secondary materials returned to the petroleum refining system. See
73 FR 58-59. The final Gasification Rule retained some conditions
and removed others as a result of the agency's deliberations on each
condition that took into account all of the comments received. EPA
had 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. 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.
EPA's November 2008 and January 2011 documents stated that the
March 2002 Gasification Proposal specifically provided notice that
the provisions of the 1998 NODA were still being considered and
noted that it is significant that your original administrative
petition ignores this discussion in the March 2002 proposal. The SC
Comments (at p. 18), for the first time, respond to this notice
argument. EPA continues to defend its position that this discussion
in the March 2002 Gasification Proposal is supportive of the
agency's position that adequate notice and comment was provided.\7\
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\7\ For example, see footnote 2 of the preamble found at 67 FR
13685, footnote 9 of the preamble found at 67 FR 13688, and the
discussion in Section VI of the preamble found at 67 FR 13689.
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Arbitrary and Capricious Issues
The SC Comments (at pp. 19-28) provide a longer discussion than
the original petition on your argument that the Gasification Rule is
arbitrary and capricious. However, the arguments for the most part
are simply those reiterated in comments on the rule and fail to cite
information not provided in the rulemaking record which EPA has
already considered. EPA understands that you may disagree with the
agency'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 relevant information, it would not be
useful for the agency to revisit evidence and arguments it has
already carefully considered. Moreover, 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. In fact, the SC Comments do not point to any information
which EPA lacks to make its decision.
Additional Issues
The SC Comments do cite two reports issued after the
Gasification Rule was published.\8\ However, the information in
these studies are cumulative at best and deal with the management of
municipal solid waste and the role that incinerators, gasification
and pyrolytic processes have on potentially affecting the use of
waste reduction and recycling activities. Neither report
specifically explores the subject of recycling of oil-bearing
hazardous secondary materials at a petroleum refinery through
gasification. Furthermore, the Gasification Rule applies only to
gasification operations occurring at petroleum refineries for the
recycling of oil-bearing hazardous materials and does not apply to
other secondary materials, including municipal solid waste.
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\8\ Waste Gasification--Impact on the Environment and Public
Health. The Blue Ridge Environmental Defense League. February 2009.
An Industry Blowing Smoke. 10 Reasons Why Gasification, Pyrolysis
and Plasma Incineration are Not Green Solutions. Global Alliance for
Incinerator Alternatives Global Anti-Incinerator Alliance. June
2009.
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In addition, Sierra Club alleges that EPA predicted that ``over
150 refineries * * * could potentially exploit'' the Gasification
Rule and thereby burn over 320,000 tons of hazardous waste without
adequate protections. As discussed in the final rule, the agency's
cost-benefits analysis was based on two scenarios drawn from U.S.
Department of Energy projections on the future of gasification
operations at petroleum refineries: A low capacity analysis (three
gasifiers employed at three different refineries) and a high
capacity analysis (five gasifiers at five refineries). This is far
different than the 150 refineries Sierra Club argues would
``exploit'' the exclusion.\9\ As for the 320,000 tons of hazardous
waste being burned, this number represents the total amount of
hazardous waste generated by petroleum refineries in 2003 as
reported to the RCRA Biennial Reporting System (BRS) and in no way
represents the amount of oil-bearing hazardous secondary material
which would be fed into a gasifier at a petroleum refinery.\10\
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\9\ This number is based on data from the 2003 RCRA Biennial
Reporting System (BRS) using the following waste codes K048-K052,
K169-K172, F037 and F038. This is hazardous waste that was reported
to EPA that was generated and managed in 2003. The BRS reported
324,371 tons of hazardous waste generated by 153 sites (Standard
Industrial Classification 2911). The average generation rate was
calculated at 2,314 tons per year, with a maximum generation rate of
76,582 tons per year and a minimum of less than 1 ton per year.
Information from the report, Refinery Technology Profiles:
Gasification and Supporting Technologies. U.S. Department of Energy,
National Energy Technology Laboratory, June 2003, suggests that
growth in petroleum refinery gasification will most likely be driven
by future supply and demand of petroleum coke with approximately 40
refineries within the U.S. producing sufficient quantities of
petroleum coke to be considered candidates for the addition of
gasification to their production process. The report suggests a
market penetration rate of one plant every two years. EPA's analysis
shows that both waste characterization data and waste generation
rates indicate that industry would probably not build a gasification
unit dedicated to gasifying oil-bearing hazardous secondary
materials and the most probable gasification scenario would be a
petroleum refinery building a gasification unit for petroleum coke
gasification with oil-bearing hazardous secondary materials possibly
used as a supplemental feed (accounting for between 0.1 and 10
percent of the total feed rate) (docket item EPA-HQ-RCRA-2002-0002-
0110). Given these assumptions, EPA would estimate that with an
average generation rate of 10,000 tons per year of oil-bearing
hazardous secondary material, a total of no more than 50,000 tons
per year of oil-bearing hazardous secondary material would be placed
into a gasification unit as part of the petroleum refining process.
\10\ See: Assessment of the Potential Costs, Benefits, and Other
Impacts of the Exclusion for Gasification of Petroleum Oil-bearing
Secondary Materials--Final Rule (docket item EPA-HQ-RCRA-2002-0002-
0089).
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Finally, Sierra Club introduces yet another new issue, not
raised in the original administrative petition, regarding EPA's
failure to adequately assess environmental justice as part of its
cost assessment and the agency's lack of effort to ascertain the
full range of threats the Gasification Rule would present to
disadvantaged, low-income and minority communities living nearby the
exempted refineries. The agency concluded, based on its technical
analysis supporting the rule, that the gasification of hazardous
secondary materials at petroleum refineries does not represent a
greater risk to the public
[[Page 22229]]
than the baseline used to develop the analysis.\11\
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\11\ The rule is projected to result in benefit-cost savings for
petroleum refineries using the exclusion. Petroleum refineries
choosing not to take advantage of the exclusion would experience no
direct impact from the rule. The benefit-cost analysis showed
between $5.2 million and $48.7 million in net social benefits per
year with avoided waste management costs constituting the most
significant share of the benefits, followed by the energy savings
from increased fuel production. The analysis further showed that the
areas potentially affected by the rule showed disproportionately
high minority/low income populations, but that gasification of oil-
bearing hazardous secondary materials does not represent a greater
risk to the public than baseline management, and that as less
material is received by hazardous waste management facilities, low
income and minority populations would likely experience a potential
reduction in risk under the rule.
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As previously stated, a document will be published in the
Federal Register announcing the agency's final decision to deny your
administrative petition. If you should have any questions, please
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: April 3, 2012.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency
Response.
[FR Doc. 2012-8921 Filed 4-12-12; 8:45 am]
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