June 25, 2007

RCRA Docket Information Center **[Submitted by "e-mail" to:
rcra-docket@epa.gov]{.underline}**

Office of Solid Waste

U.S. Environmental Protection Agency

1200 Pennsylvania Ave. NW

Washington, DC 20460-0002

**RE: Docket ID No. EPA-HQ-RCRA-2002-0031**

**Proposed Revisions to the Definition of Solid Waste under 40 CFR**

**Parts 260 and 261**

Dear Sir/Madam:

DuraTherm, Inc. (DuraTherm) submits these comments in response to EPA's
proposal to revise the definition of solid waste under 40 CFR Parts 260
and 261.

DuraTherm operates the San Leon Recycling Center, a RCRA-permitted
facility specializing in the recovery of hydrocarbon and metal values
from oil bearing secondary materials from petroleum refiners,
petrochemical manufacturers, pipelines, terminals, shipyards, and other
petroleum related waste generators. The San Leon Recycling Center is
located near Houston, Texas, and receives more petroleum refinery
hazardous listed and characteristic waste volumes than any other
facility in the United States.

In addition to the services provided at the San Leon Recycling Center,
DuraTherm offers a number of recovery and reduction services
complementing its centerpiece indirect-fired thermal desorption
technology, which is marketed as DuraTherm Desorption^sm^. DuraTherm
Desorption^sm^ has been successful in recovering both hydrocarbon and
metal values from secondary materials. We currently provide technology
and process support to Halliburton Energy Services on a project in
Indonesia that Halliburton describes as the largest petroleum recycling
facility in Asia. DuraTherm's founding management has been involved in
the development and commercialization of recovery technologies for over
30 years, resulting in recovering millions of barrels of petroleum and
significant volumes of high temperature metals for reuse.

DuraTherm recognizes that this rule (the proposal to revise the
definition of solid waste under 40 CFR Parts 260 and 261) as currently
contemplated does not directly influence recycling activities where the
recovered product is ultimately used as a fuel. Although recovery of oil
that is used to produce fuels is a substantial portion of DuraTherm's
recycling activities, DuraTherm understands that the proposed regulation
sets a "tone at the top" that will strongly influence regulatory
interpretation and enforcement for all recycling activities well into
the future. Our comments, therefore, are influenced by the RCRA and
non-RCRA recycling and disposal activities related to the petroleum and
petrochemical related industries that we serve.

**DuraTherm's position can be summarized as follows:**

-   DuraTherm supports EPA's intent to encourage recycling of industrial
    wastes to preserve the nation's energy and material resources while
    reducing the volume of land disposal of toxics.

-   DuraTherm supports the removal of waste treatment and generation
    taxes and the removal of TRI reporting requirements for any material
    that is recycled.

-   DuraTherm supports an even-handed EPA recycling regulatory framework
    that holds all petroleum waste to the same regulatory guidelines
    based on chemistry, not origin, and holds all treatment activities
    related to recycling industrial wastes or secondary materials to the
    same standards, not penalizing RCRA recycling while rewarding
    non-RCRA recycling, or vice versa.

-   DuraTherm supports the creation of an EPA recycling definition that
    discourages the land disposal of toxics, discourages "toxics along
    for the ride" in products and considers economics to distinguish
    between waste recycling and product manufacturing using secondary
    material feedstocks.

-   DuraTherm supports a national recycling framework that limits, but
    does not universally prohibit, the land application or disposal of
    Universal Treatment Standards (UTS) constituents.

-   DuraTherm supports an EPA recycling framework that does not exclude
    the recovery of a product used for fuel by its definition of
    recycling.

-   DuraTherm supports the continuance of RCRA's cornerstone protective
    standards (as follows) for any operator conducting recycling
    activities on residuals that fail to meet UTS standards prior to
    recycling and under circumstances in which the treatment fees are
    greater than the recovery values.

    -   Financial assurance,

    -   Waste acceptance and analysis,

    -   Tracking and reporting of inbound-outbound residuals, and

    -   Construction and maintenance of facility process equipment to a
        standard that will limit the possibility of discharge to the
        environment.

-   DuraTherm does not support the export of U.S. generated hazardous
    waste outside the U.S., regardless of the name given the otherwise
    hazardous waste.

DuraTherm provides the following discussion in support of its position.

**DuraTherm supports EPA's intent.**

DuraTherm commends EPA's intention to encourage producers of wastes to
recycle, thereby conserving natural resources and reducing the quantity
of waste sent to landfills in implementation of the RCRA 2020 vision.
DuraTherm also commends EPA on its concern that the dismantling of
regulations that remove responsibility for hazardous waste management
might result in the mismanagement of secondary materials and loss of
protection of the environment.

DuraTherm supports the removal of waste treatment and generation taxes
and the removal of TRI reporting requirements for any material that is
recycled.

Since the EPA designed RCRA TSDF infrastructure already exists, EPA
should consider encouraging utilization rather than abandonment of these
assets. RCRA recycling already exists. In addition to DuraTherm
Desorption[^sm^]{.smallcaps}, there is a national network of cement
kilns, hazardous waste derived fuel (\"HWDF\") blenders, and metal and
solvent recovery facilities. In fact, due to the high cost of closing
such facilities, many are open but underutilized. If EPA and states were
to provide incentives for RCRA recycling, these RCRA facilities would
expand their services. Primary among such incentives would be relief
from hazardous and industrial waste generation and treatment taxes and
relief from toxic release inventory (\"TRI\") reporting for generators.
Fast track permit modifications for recycling activities would be
beneficial, as well as fast track delisting capability or hazardous
waste identification rules that look to toxicity rather than listings.

Today, non-RCRA recyclers are already managing what is effectively the
same hazardous waste as RCRA recyclers. If this rule revision were to
level the playing field, DuraTherm would support it. Regardless, all
recycling of hazardous wastes should be held to the same standards, and
hazardous wastes processors should not be excluded from any regulation
simply because some level of recycling occurs. Alternatively, all
recyclers should be excluded from any regulation when a defined
recycling standard is met. In other words, all recycling activities for
similar materials should be regulated by similar standards.

DuraTherm supports an even-handed national recycling regulatory
framework.

EPA has spent over 15 years creating a RCRA framework for the regulation
of waste management from generation to final disposition. The
cradle-to-grave concept was a founding cornerstone of RCRA. One result
of EPA's efforts was the creation of a sustainable RCRA treatment,
storage, and disposal facility (\"TSDF\") industry. However, for the
immediate past decade, it seems that EPA and state agencies have been
dismantling the originally established RCRA regulatory framework one
piece at a time. This slow dismantling has created a regulatory
patchwork that is confusing to regulators and stakeholders alike.
Industry and regulatory managers need a clear understanding of the
regulatory framework governing their work today and in the future.
Unfortunately, the proposed rule potentially creates more confusion and
inequity.

DuraTherm's management has been in the business of petroleum recycling
for over 30 years. Before RCRA, recyclable petroleum materials were
simple to define; it was petroleum that did not meet standard petroleum
product specifications, typically because it had some level of
contamination with dirt and water. Consequently, the petroleum was
discounted below market price, or its owner might even pay to have it
removed. Recyclers received and processed these materials to meet
specification product requirements and attempted to realize a profit
equal to the difference between treatment fee + discounted price +
treatment costs versus the market sales price.

Today EPA regulations governing that same petroleum waste recycling
might result in a classification of non-hazardous, listed hazardous,
characteristically hazardous, jurisdictionally excluded oil bearing
secondary materials, Bevil exempted non-hazardous, used oil, exempted
UST, or hazardous but exempted. These different regulatory
classifications for recycling waste that is essentially the same create
different regulatory requirements. From a processor\'s perspective,
these materials are identical in composition, recycling processes, and
treatment results and, therefore, should be regulated the same.

Further complicating management, the land disposal restrictions
(\"LDRs\") for different petroleum refinery listed wastes are all
different. That varied approach does not afford reasonable protection of
the environment. Any of the 12 inorganic and 24 organic UTS compounds
normally associated with petroleum and petroleum refining might be found
in any petroleum waste and should be treated prior to land disposal or
land application.

This hodgepodge of regulations governing the same characteristically
similar materials drives up the cost of regulation, compliance, and
treatment. Economies would be gained if all waste from the same
industrial sources that pose the same environmental risks (or absence
thereof) were treated equally.

DuraTherm supports the creation of an even-handed recycling definition.

DuraTherm supports the Agency's intent to define and support legitimate
recycling. The proposed rule preamble states:

> ... the EPA has long articulated the need to distinguish between
> "legitimate" (i.e. true) recycling and sham recycling ...

In the commercial world, waste activities are easy to spot. If someone
pays a net positive sum for a material it is a product. Conversely, if
the cost of managing the disposition of a material is greater than the
value received from the sale of derivatives of the material, the
material is a waste. The agency should not have any jurisdiction over
materials whose value is greater than the cost of management; that
activity is manufacturing. Conversely, the agency should not lose
jurisdiction over materials whose value is less than the cost of
management.

Regardless of the cost of treatment versus the value of recovery,
recycling activities resulting in products that are not substantially
degraded by the addition of UTS or other constituents to the product,
and do not result in the land application or disposal of UTS
constituents at higher than regulated levels, should be considered
recycling and regulated as waste recycling treatment. That waste
treatment standard should be the same for like wastes, whether that
standard is EPA\'s RCRA TSDF standard or some other standard.

The definition of \"legitimate recycling\" requires consideration and
guidance. For over 15 years, the Agency has looked to the following
recycling guidelines from the 1989 Lowrance Memo:

-   Whether the hazardous secondary material is managed as a valuable
    commodity;

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-   Whether the hazardous secondary material provides a useful
    contribution to the recycling process or to a product of the
    recycling process;

-   Whether the recycling process yields a valuable product or
    intermediate;

-   Whether the product of the recycling process does not contain
    significant amounts of hazardous constituents that are not found in
    the analogous products or exhibit a hazardous characteristic not
    exhibited by the analogous product.

OSWER Directive 9441.1989 (April 26, 1989)

The criteria for determination of legitimate recycling that is proposed
for 40 CFR § 261.2(g) are somewhat helpful but do not go far enough.
DuraTherm recommends refinement of these guidelines to address the
following issues:

-   How is "managed as a valuable commodity" defined? If the treatment
    cost outweighs the recovery value, it would not truly be managed as
    a valuable commodity; if that criterion were to be used, this rule
    would have little effect on current status. Or would this factor be
    satisfied by hauling the material in a similar truck and storing it
    in a similar manner?

-   What definition is used for \"valuable product\"? Does it need to be
    sold? Can the cost of delivering the product exceed the price paid?
    Does it need to be sold to a third party? Are there time limits on
    how quickly it must be sold?

-   How does the recovery value versus the treatment cost weigh in the
    determination? And how does the agency define or enforce abuses? How
    will the agency ever uncover such abuses without reporting,
    tracking, and inspection?

-   How much "useful contribution" or "valuable product" must the
    recycling process yield? Does one ounce per hundred tons qualify?

-   What amount of detrimental contribution compared to valuable
    contribution to the product causes failure to meet the legitimacy
    criteria? Is it subject to generator, recycler, or agency
    determination? Is detrimental effect on a valuable product
    specification even considered? Even if the valuable product is of
    negligible value? In other words, is dilution the solution to
    pollution? And if so, how much dilution is good dilution?

-   What constitutes \"significant amounts of hazardous constituents
    that are not found in the analogous products"? Is this determined by
    UTS hazardous waste standards, which are very low, or by product
    specifications which could be very high? This is an especially
    significant issue considering that many product specifications do
    not contemplate the presence of any hazardous constituents.

-   If the recycling process results in the landfill of UTS constituents
    that would otherwise be prevented from land disposal, is the process
    still considered legitimate?

DuraTherm supports the Agency's effort to distinguish between
"legitimate" recycling and sham recycling and supports using the
Lowrance Memorandum as a starting point. However, the criteria proposed
for 40 CFR § 261.2(g) should be further expanded to address issues such
as identified above. Otherwise recycling exclusions run the risk of
abuse driven by overzealous (to either extreme) or confused
interpretations.

DuraTherm supports a national recycling framework that discourages land
disposal of materials failing to meet UTS standards but does not
prohibit the land application of materials that do meet UTS standards.

Current regulations are designed to insure that uniform treatment
standard (\"UTS\") constituents are not disposed of in landfills, listed
wastes are subject to derived-from rules, and any residuals retain the
derived-from listing. Characteristic wastes must address underlying
hazardous constituents prior to land disposal. Under the proposed rule,
residuals produced from recycling activities bound for landfill are not
treated as listed wastes and may not be characteristically hazardous but
could contain substantial volumes of UTS constituents. This prospect
would have great economic advantage to the new non-RCRA hazardous
secondary material recycling industry that the EPA could inadvertently
sanction and that will emerge under this rule. Treating to LDR standards
is specific and often addresses UTS constituents that are not addressed
under TCLP determination. Therefore, simply removing the listing or
characteristic hazardous designation offers large potential economic
saving to waste generators but undermines the entire EPA listing and LDR
program while disadvantaging recyclers managing the same waste in a
fully permitted RCRA Part B facility.

While the agency should not promulgate recycling regulations that
promote land disposal of UTS constituents, the Agency should not
universally prohibit "placement on land" of residues from recycling.

Under current practices and regulatory framework, solid residues derived
from a recycling process are treated to very different standards. For
example, residues from a Bevil exempted or non-hazardous petroleum waste
containing benzene and otherwise failing UTS can be added to road base,
hot mix or even used as road oil and "applied to land," while clean
residue from a listed hazardous waste passing all UTS LDR standards must
be placed in a hazardous waste landfill. As a result, these LDR
compliant clean residues become contaminated with other hazardous
constituents in the landfill and permanently entombed. DuraTherm
supports land application of residues in legitimate products, subject to
meeting and documenting UTS LDR compliance.

Land disposal restrictions drive waste minimization and recovery
technology development, and they should be applied to more oil-bearing
secondary materials. Over the last twenty years, landfill prohibitions
have driven petroleum refinery waste minimization and recycling
technologies to such an extent that very little oil-bearing *hazardous*
waste leaves the refineries. On the other hand, large volumes of
oil-bearing waste designated \"nonhazardous,\" but with significant
hydrocarbon content, routinely leave refineries for landfills. The
difference is not whether the waste contains toxic constituents or
whether there is enough oil for recycling, but whether the secondary
material is classified as hazardous waste under RCRA regulations and
therefore subject to LDR requirements.

The petroleum refinery LDRs that began in 1990 have substantially
reduced the volume of refinery waste by encouraging waste minimization
initiatives relative to the refiners' processes and procedures. The
remaining hazardous sludges and emulsions are centrifuged onsite to
reduce waste volumes and recover oil. The bulk of the oil bearing
hazardous waste that leaves the refinery site is directed to thermal
desorption or cement kiln fuel, both of which are recycling
alternatives. If the oily waste is not listed as hazardous or does not
contain benzene, the "secondary material" in all likelihood will be
bulked to meet paint filter requirements and landfilled. Exemptions and
exclusions do not remotely drive recycling to the extent that land
disposal restrictions do. The agency should consider incentives or
disincentives to encourage recycling and discourage land disposal or
destruction of non-hazardous oil bearing secondary materials.

The U.S. petroleum industry is one of the greatest achievements in our
nation's economic history. DuraTherm is proud of its modest
contributions to that industry. An industry that can mine heavy, high
sulfur oil from thousands of feet below the surface halfway around the
globe, store it, transport it, refine it into high octane low sulfur
gasoline, and deliver to our neighborhood corners is obviously capable
of recycling the waste generated along the way. Publicly owned
companies, however, are obligatorily driven by costs and profits, and
only when the cost of not recycling wastes is more than the cost of
recycling it, will we see the goals met that the Agency supports.

DuraTherm supports an EPA recycling framework that does not exclude the
recovery of a product used for fuel by its definition of recycling.

Excluding secondary materials recovered for use as fuel greatly inhibits
achievement of the Agency's goals.

The preamble to the proposed rule states:

> EPA believes that these exclusions will encourage recycling and that
> they are consistent with RCRA's statutory objective of conserving
> valuable material and energy resources.

Oily wastes from which petroleum is recovered to be used as a feedstock
to a refining process or that meets legitimate fuel specifications
should be included in this proposed exclusion. Otherwise, how are these
exclusions promoting the conservation of "valuable...energy resources"?
The U.S. petroleum related industries receive, refine and distribute in
excess of 20 million barrels of oil per day, and their products are
essential to the welfare of the country. Recycling petroleum to
petroleum specification products should be highly encouraged while land
disposal or incineration of petroleum should be highly discouraged.
DuraTherm supports an even-handed recycling regulatory framework that
places all petroleum recyclers on an equal footing, assuming that
framework affords adequate protection to the environment.

DuraTherm supports the continuance of RCRA's cornerstone protection
standards.

Exclusions without boundaries make compliance and enforcement of waste
treatment activities more complicated. Some regulatory boundaries are
appropriate. If a generator and service provider have the option to
avoid all waste management regulatory requirements based on their own
interpretation of the recycling exclusions, creative interpretations
will abound, and large volumes of otherwise hazardous waste will become
invisible to the agency. Exclusions and exemptions conferred upon
hazardous wastes result in no requirement for RCRA dictated record
keeping and reporting. If waste is RCRA regulated, the agency can go to
its own Biennial Reports to understand waste generation volumes and
trends. The agency can review waste acceptance analyses that are
required by regulations to understand the physical characteristics of
wastes and the value of the recycling. TSDFs are inspected by the
agencies and audited by their customers. Everyone knows exactly what is
going on. Once exclusions allow waste to exit RCRA, all visibility is
lost, and any enforcement and remedial action necessitated by a release
of the unmanaged material will be complicated by the lack of clear
regulatory definition. While RCRA TSDF regulations can be onerous, and
in many aspects are antiquated, they dictate waste tracking, analysis,
and reporting requirements that provide the backbone to waste generation
responsibility.

The Agency has long studied the issue of waste economics and should
understand that costs are the primary driver for selection of a waste
management alternative by waste generators. The generator's long term
liability should be included in his cost analysis. Unfortunately, it is
very difficult for a waste generator to determine long term liability
while it is very simple to determine per unit transportation and
treatment costs. Consequently, generators are often attracted to the
least expensive regulatory acceptable treatment (LERAT). Since
compliance with RCRA is expensive, the option of compliance with RCRA is
disadvantaged against non-RCRA options when competing for the same
generated waste. RCRA exclusions and exemptions favor less protective
alternatives in the generators\' alternative selection process. EPA
should be striving to encourage recycling while bringing less-than-RCRA
standard recycling operators to RCRA-like standards, not undermining
RCRA standards for recycling and bringing RCRA-compliant operators to
outlaw standards.

*RCRA recycling does not mean bad recycling; non-RCRA does not mean good
recycling.* RCRA permitted TSDFs offer recycling through metal recovery,
cement kiln fuel recovery, separation recovery, solvent extraction,
solvent distillation recovery, and thermal desorption recovery. The
Agency can clearly quantify and qualify these recycling activities,
whereas any quantification or qualification of excluded, exempted, or
fringe recycling activities are purely anecdotal since no record-keeping
or reporting requirements exist. However, in the proposed rule, EPA
seems to be taking the position that non-RCRA recycling operators are
more sophisticated than in the past and are, therefore,
[good]{.underline}. The preamble states:

> ... industrial recycling practices have changed substantially since
> the early 1980's and the present day generators and recyclers are much
> better environmental stewards than in the pre-RCRA/CERCLA era.

What does this reference to non-RCRA recycling mean? We can reasonably
assume that, because RCRA/CERCLA regulations exist, things are better.
We cannot, however, reasonably assume that without RCRA/CERCLA
regulations, waste will be managed to the same level of protection and
no ill-consequences will result. Some might infer, however, from this
statement that present day recyclers outside of RCRA are better
environmental stewards than those operating pre-RCRA. Who are these
outside-of-RCRA hazardous waste recyclers? Are they exempted, excluded,
or simply illegal? If they are illegal or fringe operators, how does EPA
know what they are doing? Is the intention of this proposal to offer
amnesty for current offenders, or is the intention of this proposal to
bring everyone to an equal footing, affording protection for the
environment while encouraging recycling?

The proposal's preamble also states:

> By removing unnecessary environmental controls over certain recycling
> practices and by providing more explicit criteria for determining the
> legitimacy of recycling practices in general, EPA expects this
> proposal will encourage the safe beneficial recycling of hazardous
> secondary materials.

*DuraTherm reminds the Agency that they have already accomplished safe
beneficial recycling under RCRA.* This statement seems to imply that
removing RCRA control affords protection and that RCRA controls are
unnecessary and, therefore, [bad]{.underline}. We believe that an
even-handed regulatory framework offers fairness. The Agency should make
every effort to insure such even-handed control.

The Agency should not permit unrestricted export of hazardous wastes as
products.

The proposed rule solicits comment on the export of hazardous waste as
secondary materials. DuraTherm rejects this concept. Currently, the
export of hazardous waste to a less-than-U.S. standard treatment
disposition is permitted under RCRA. The U.S. exports substantial
volumes of land-disposal-restricted compounds contained in hazardous
waste to Canada for land disposal. Such activity suggests a double
standard: what is good for U.S. environmental protection is not required
for outside-U.S. environmental protection. In addition to potentially
exposing foreign countries to the mismanagement of U.S. generated
hazardous waste, export constrains the development of our own U.S.
recycling infrastructure. The Agency should evaluate the effects of such
deregulation before foisting its hazardous waste on other countries.

### SUMMARY OF DURATHERM'S POSITION

Excluding secondary materials recovered for fuel or to produce a fuel
from the proposed exclusion greatly inhibits achievement of the
Agency\'s goals.

The agency should be ever mindful in advancing regulations to foster
recycling that the restriction of UTS constituents from land disposal
promotes recycling and that the increased land disposal of UTS
constituents under the guise of recycling is a step backwards. Once a
material meets the UTS criteria for land disposal, it should not
arbitrarily be prohibited for use in products applied to the land.

Regulation of the management of oil-bearing hazardous material is
required, both to protect the environment and to establish the
foundation for a hydrocarbon recovery industry that will reduce the need
for foreign oil. Such regulation, however, must be equitable, regardless
of the point of generation of the waste or the technology applied to the
recycling.

Although some aspects of the RCRA TSDF regulatory framework might be
onerous, it is the only national guidance that exists. RCRA TSDF
standards should be examined and considered for all recycling activities
(which are, in fact, a form of waste management). EPA should not
disadvantage the RCRA TSDF recycling industry that it has created and
favor facilities that operate on the fringe of or outside the Agency's
own regulations.

The multiple classifications for oil-bearing residuals produce disparate
management alternatives for chemically identical wastes. Under the
current regulatory framework, characteristically identical oil-bearing
wastes can be classified as listed hazardous waste, characteristic
hazardous waste, non-hazardous waste, or excluded secondary materials.
Such an approach might be good politics, but it is bad science and
creates a poor business environment. These classifications must be
simplified and made consistent in order to provide a market environment
that will encourage the recovery of products.

DuraTherm supports a regulatory framework that favors recycling over
land disposal and destruction and promotes conservation of the nation's
valuable materials and energy resources. DuraTherm supports a regulatory
framework that holds all recycling to a similar standard and clearly
defines legitimate versus sham recycling.

### 

### SPECIFIC OBJECTIONS TO THE PROPOSED EXCLUSION

As both the nation's largest comprehensive provider of offsite treatment
for petroleum refinery hazardous wastes and as an organization with
significant investment in the development of recycling technologies,
DuraTherm supports in principle EPA's proposal to revise the Definition
of Solid Waste in Parts 260 and 261, subject to the Agency making the
following vitally important changes:

-   **The proposed rule should not exclude oil bearing materials from
    the rule when the recovered product is burned for fuel but meets the
    petroleum product specification standards or is used as a feedstock
    to petroleum refining.**

-   **The proposed rule should insure that no UTS constituents are
    land-disposed or otherwise released to the environment as a result
    of recycling allowed under this rule.**

-   **The proposed rule should not prohibit placement of recycling
    residues on land in a legitimate product if such residues meet UTS
    standards prior to inclusion in that land placed product.**

-   **The proposed rule should maintain certain RCRA TSD standards as
    requirements for recycling facility legitimacy, including but not
    limited to the following:**

    -   **Financial assurance.**

> Treatment fees are another term for tipping fees, and most likely
> without these fees, the recycling alternatives discussed herein would
> exist, including diversion of secondary materials to recycling under
> this proposed rule. Why should non-RCRA recovery alternatives be
> subject to lower costs of regulatory compliance than RCRA recovery
> alternatives for performing identical tasks? In DuraTherm's long
> experience in waste recycling, lack of regulation creates an
> environment for opportunists to amass and abandon waste. "Secondary
> materials," once abandoned, pose the same threat to the community as
> abandoned hazardous waste.

-   **Secondary containment/RCRA quality construction.**

> Perhaps the most onerous constraints to operating a RCRA Part B
> facility are the permit and permit modification requirements which
> dictate regulatory and even public review, thus insuring all
> facilities are constructed to RCRA requirements. Since the proposed
> rule will allow the treatment of hazardous wastes with little or no
> community or regulatory oversight or review, some quality assurance
> standard should be provided. The Agency should review its own
> requirements for such RCRA activity and place similar requirements on
> these secondary recycling facilities, even if not subject to prior
> review.

-   **Waste acceptance and analysis plans should be required, submitted,
    and approved by the state and made subject to public comment.**

> Secondary material (hazardous waste) recycling facilities should not
> only keep records but should be aware of the specific nature of the
> waste they plan to accept and how it will be managed in their
> particular facility. The requirements for such analysis, acceptance,
> and tracking are outlined in EPA's RCRA regulations and should be
> followed by any and all facilities that manage hazardous wastes by
> whatever name the Agency utilizes to describe the same material. RCRA
> holds both the generator and the receiving facility accountable for
> the proper and timely management of hazardous waste. The Agency should
> not abandon its oversight of these vital components of responsible
> waste management.

-   **The proposed rule should require the incorporation of reporting
    and tracking for non-RCRA recyclers, and the Agency should capture
    and report such activity in their Biennial Report.**

> The abandonment of tracking, analysis, and reporting responsibility
> moves us backward in ensuring proper management of oil-bearing wastes.
> Visibility motivates responsibility.

-   **The proposed rule should not penalize TSDFs currently operating
    within RCRA regulations in favor of those currently operating on the
    fringe or completely outside of RCRA regulations. If a RCRA
    permitted facility no longer requires a Part B TSDF permit under the
    newly created regulatory framework, EPA should allow the
    discontinuance of that permit without any economic penalty or
    closure requirement.**

> Hazardous waste treatment assets in the United States are very
> valuable and should not be abandoned or unfairly impaired. These
> assets include: (1) state of the art analytical and information
> management systems for determining the fate of all constituents in
> hazardous secondary materials, (2) storage facilities designed to RCRA
> standards, (3) waste preparation systems, (4) equipment for the
> control of fugitive emissions, and (5) facility infrastructures
> scrutinized by the communities in which they are located. Unlike other
> waste management facilities, RCRA-regulated facilities are highly
> visible and rigorously governed to insure protection of the
> environment.

-   **The proposed rule should more clearly define legitimate recycling
    relative to:**

    -   **dilutive recycling practices,**

    -   **value of recovery versus treatment costs, and**

    -   **fate of hazardous constituents.**

### 

### CONCLUSION

DuraTherm applauds EPA's intent to promote recycling over disposal and
destruction alternatives in order to "conserve material and energy
resources". DuraTherm is cautiously supportive of the proposed rule,
subject to not completely dismantling regulations that impose
responsibility for diligent and effective hazardous waste management.
EPA should recall the pre-RCRA era when industry abandoned many
"recycling" ventures, creating CERCLA dumpsites with which the Agency
continues to struggle. To quote George Santayana, "Those who do not
remember the past are condemned to repeat it." EPA should review its own
history of designing RCRA TSDF regulations and use that history as
guidance in creating and regulating a hazardous secondary material
recycling industry.

*EPA's creation of multi-tiered classifications for the same material
including secondary materials exclusions, exemptions, and inadequate
criteria for identifying oil-bearing hazardous wastes is the primary
barrier to building strong petroleum recycling assets.* RCRA should
provide a regulatory framework that insures proper waste management and
encourages recycling without prejudice or partiality in identifying
wastes and regulating their proper management.

History has shown that a strong regulatory framework that places
adequate responsibility on the waste generator and the receiving
facility, while restricting waste from land disposal prior to removal of
organics, is the primary driver for increasing the nation's recycling of
oil-bearing residuals. DuraTherm unequivocally endorses the development
of a national petroleum recycling policy that encourages the recycling
of petroleum secondary materials. The recent trend, however, to abandon
the lessons learned and the disciplines of RCRA-regulated TSDFs should
not be allowed to create another legacy of abandoned toxic waste
recycling sites and the loss of the infrastructure and expertise that
has been invested in the hazardous waste TSDF industry. Good intentions
should not be allowed to undermine more than 20 years of Agency progress
in establishing the RCRA quality recycling systems and assets now in
place.

Respectfully,

**DuraTherm, Inc.**

####### Barry K. Hogan

Barry K. Hogan

President and CEO