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, 5107-5110 [2011-1906]
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Federal Register / Vol. 76, No. 19 / Friday, January 28, 2011 / Proposed Rules
37 CFR 202.3(b)(5). Using this
provision, stock photography agencies
have registered all the photographs
added to their databases within a threemonth period when they have obtained
copyright assignments from the
photographers.
The regulations governing registration
of automated databases embodied in
machine-readable copies (other than in
a CD–ROM format) require deposits that
are significantly different than the
deposits required in connection with
the other regulations for registration of
photographs, discussed above. Section
202.20(c)(2)(vii)(D)(5) of the Office’s
regulations provides that the
applications for database registrations
need not be accompanied by a deposit
of the entire work, but instead may
include identifying material consisting
of fifty representative pages or data
records marked to show the new
material added on one representative
day, along with additional identifying
information. The deposit accompanying
a database registration application thus
can consist of a fraction of the
copyrightable material covered by the
registration.
This is in stark contrast to the deposit
requirements for registration of
unpublished collections, for group
registrations of published photographs,
and for most other forms of copyright
registration. Section 202.3(b)(10)(x),
which governs the deposit for a group
registration of photographs, provides
that the deposit shall consist of ‘‘one
copy of each photograph [to] be
submitted in one of the formats set forth
in Sec. 202.20(c)(2)(xx).’’ See also 37
CFR 202.20(c)(1)(i) (‘‘in the case of
unpublished works, [the deposit shall
consist of] one complete copy or
phonorecord,’’ a provision that applies
to registrations of unpublished
collections as well as individual
unpublished works).
There is no good reason why a
registration should issue for a database
consisting predominantly of
photographs when the copyright claim
extends to the individual photographs
themselves unless each of those claimed
photographs is actually included as part
of the deposit. As the Office said when
it announced its regulations on group
registration of published photographs:
[T]he Office rejects the plea of at least one
commenter to permit the use of descriptive
identifying material in lieu of the actual
images. Although the Office had previously
expressed a willingness to consider such a
proposal, the most recent notice of proposed
rulemaking noted that ‘‘the Office is reluctant
to implement a procedure that would permit
the acceptance of deposits that do not
meaningfully reveal the work for which
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copyright protection is claimed.’’ Deposit of
the work being registered is one of the
fundamental requirements of copyright
registration, and it serves an important
purpose. As the legislative history of the
Copyright Act of 1976 recognizes, copies of
registration deposits may be needed for
identification of the copyrighted work in
connection with litigation or for other
purposes. The ability of litigants to obtain a
certified copy of a registered work that was
deposited with the Office prior to the
existence of the controversy that led to a
lawsuit serves an important evidentiary
purpose in establishing the [identity] and
content of the plaintiff’s work.
Registration of Claims to Copyright,
Group Registration of Photographs, 66
FR 37142, 37147 (July 17, 2001)
(citations omitted). Moreover, the actual
practice with respect to almost all
registrations of predominantly
photographic databases has in fact been
to include all of the photographs in the
deposit.
For these reasons, in the recently
announced interim regulation
establishing a pilot program for online
applications for group registration of
databases consisting predominantly of
photographic authorship, the Office
included a requirement that the deposit
accompanying such an online
application authorship must include the
image of each claimed photograph in
the database. Interim Rule, Registration
of claims of copyright, 76 FR 4072–4076
January 24, 2011).
In order to conform to the prevailing
practice and the Office’s determination
of what a reasonable deposit
requirement should include, the Office
proposes to apply that requirement to
deposits accompanying paper
applications for group registration of
databases consisting predominantly of
photographic authorship. The proposed
amendment would provide that, for any
registration (whether the application is
made by paper application or online
pursuant to the Interim Regulation) of
an automated database consisting
predominantly of photographs, the
deposit shall include, in addition to the
descriptive statement currently required
under section 202.20(c)(2)(vii)(D)(5), all
of the photographs included in the
copyright claim being registered.
Identifying material will not constitute
a sufficient deposit. As noted above, this
conforms with what has in fact been the
prevailing practice. The Office also
notes that it will, in the future, consider
extending this requirement to other
types of databases.
Proposed Regulations
In consideration of the foregoing, the
Copyright Office proposes to amend part
202 of 37 CFR, as follows:
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List of Subjects in 37 CFR Part 202
Copyright.
PART 202—PREREGISTRATION AND
REGISTRATION OF CLAIMS TO
COPYRIGHT
1. The authority citation for part 202
continues to read as follows:
Authority: 17 U.S.C. 407, 408, 702.
2. Amend § 202.20 as follows:
a. In paragraph (c)(2)(vii)(D)(5)
introductory text by removing
‘‘electronically submitted’’ after ‘‘or in
the case of’’;
b. In paragraph (c)(2)(vii)(D)(8) by
removing ‘‘submitted electronically’’
after ‘‘case of an application’’; and
c. In paragraph (c)(2)(xx) introductory
text remove ‘‘registered with an
application submitted electronically
under § 202.3(b)(5)(ii)(A)’’ after ‘‘and for
automated databases that consist
predominantly of photographs’’.
Dated: January 24, 2011.
Maria Pallante,
Acting Register of Copyrights.
[FR Doc. 2011–1884 Filed 1–27–11; 8:45 am]
BILLING CODE 1410–30–P
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
Environmental Protection
Agency (EPA).
ACTION: Notice of action—tentative
determination to deny petition for
reconsideration.
AGENCY:
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
SUMMARY:
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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: https://
www.regulations.gov: Follow the on-line
instructions for submitting comments.
• E-mail: Comments may be sent by
electronic mail (e-mail) to rcradocket@epa.gov, 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 email 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.
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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 https://
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 https://
www.regulations.gov or e-mail. The
https://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 https://
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 https://
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
carpien.alan@epa.gov.
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 https://
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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 https://
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)
§ 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.
EPA notes that we issued a letter with
essentially the same substantive response as
stated in this letter in November 2008.2
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.
2 Letter to Lisa Gollin Evans, Earthjustice, from
Susan Parker Bodine, EPA Assistant Administrator,
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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.
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
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)
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 oilbearing 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)
dated November 14, 2008. This letter is available in
the docket (docket item EPA–HQ–RCRA–2008–
0808–0004).
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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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 nonwaste 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
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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.
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
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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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.
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]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[EPA–R06–RCRA–2010–1052; SW–FRL–
9259–3]
Hazardous Waste Management
System; Identification and Listing of
Hazardous Waste; Proposed Rule
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
AGENCY:
EPA is proposing to grant a
petition submitted by Gulf West
Landfill, TX, LP. (Gulf West) to exclude
(or delist) the landfill leachate generated
by Gulf West in Anahuac, Texas from
the lists of hazardous wastes. EPA used
the Delisting Risk Assessment Software
WReier-Aviles on DSKGBLS3C1PROD with PROPOSALS
SUMMARY:
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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(DRAS) Version 3.0 in the evaluation of
the impact of the petitioned waste on
human health and the environment.
DATES: We will accept comments until
February 28, 2011. We will stamp
comments received after the close of the
comment period as late. These late
comments may or may not be
considered in formulating a final
decision. Your requests for a hearing
must reach EPA by February 14, 2011.
The request must contain the
information prescribed in 40 CFR
260.20(d) (hereinafter all CFR cites refer
to 40 CFR unless otherwise stated).
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–R06–
RCRA- 2010–1052 by one of the
following methods:
1. Federal eRulemaking Portal:
https://www.regulations.gov: Follow the
on-line instructions for submitting
comments.
2. E-mail: peace.michelle@epa.gov.
3. Mail: Michelle Peace,
Environmental Protection Agency,
Multimedia Planning and Permitting
Division, RCRA Branch, Mail Code:
6PD–C, 1445 Ross Avenue, Dallas, TX
75202.
4. Hand Delivery or Courier: Deliver
your comments to: Michelle Peace,
Environmental Protection Agency,
Multimedia Planning and Permitting
Division, RCRA Branch, Mail Code:
6PD–C, 1445 Ross Avenue, Dallas, TX
75202.
Instructions: Direct your comments to
Docket ID No. EPA–R06–RCRA–2010–
1052. EPA’s policy is that all comments
received will be included in the public
docket without change and may be
made available online at https://
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 https://
www.regulations.gov or e-mail. The
https://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 https://
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
PO 00000
Frm 00009
Fmt 4702
Sfmt 4702
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.
Docket. All documents in the
electronic docket are listed in the
https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, will be publicly
available only in hard copy. Publicly
available docket materials may be
available either electronically in https://
www.regulations.gov or in electronic or
hard copy at the Environmental
Protection Agency, RCRA Branch, 1445
Ross Avenue, Dallas, TX 75202. The
hard copy RCRA regulatory docket for
this proposed rule, EPA–R06–RCRA–
2010–1052, is available for viewing from
8 a.m. to 5 p.m., Monday through
Friday, excluding Federal holidays. The
public may copy material from any
regulatory docket at no cost for the first
100 pages, and at fifteen cents per page
for additional copies. EPA requests that
you contact the person listed in the FOR
FURTHER INFORMATION CONTACT section to
schedule your inspection. The
interested persons wanting to examine
these documents should make an
appointment with the office at least 24
hours in advance.
FOR FURTHER INFORMATION CONTACT: For
technical information regarding the
Republic Services, Inc./BFI Gulf West
Landfill petition, contact Michelle Peace
at 214–665–7430 or by e-mail at
peace.michelle@epa.gov.
Your requests for a hearing must
reach EPA by February 14, 2011. The
request must contain the information
described in § 260.20(d).
SUPPLEMENTARY INFORMATION: Gulf West
submitted a petition under 40 CFR
260.20 and 260.22(a). Section 260.20
allows any person to petition the
Administrator to modify or revoke any
provision of parts 260 through 266, 268
and 273. Section 260.22(a) specifically
provides generators the opportunity to
petition the Administrator to exclude a
waste on a ‘‘generator specific’’ basis
from the hazardous waste lists.
EPA bases its proposed decision to
grant the petition on an evaluation of
waste-specific information provided by
the petitioner. This decision, if
finalized, would conditionally exclude
E:\FR\FM\28JAP1.SGM
28JAP1
Agencies
[Federal Register Volume 76, Number 19 (Friday, January 28, 2011)]
[Proposed Rules]
[Pages 5107-5110]
From the Federal Register Online via the Government Printing 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.
-----------------------------------------------------------------------
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: https://www.regulations.gov: Follow
the on-line instructions for submitting comments.
E-mail: Comments may be sent by electronic mail (e-mail)
to rcra-docket@epa.gov, 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
https://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 https://www.regulations.gov or e-mail. The https://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 https://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 https://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 carpien.alan@epa.gov.
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 https://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 https://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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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)
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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]
BILLING CODE 6560-50-P