September 17, 2007

Ms. Susan Parker Bodine

Assistant Administrator

Office of Solid Waste and Emergency Response

United States Environmental Protection Agency

Washington, DC 20460

***Re:*** Environmental Protection Agency - Proposed Expansion of RCRA
Comparable Fuel Exclusion (40 CFR Part 261), published on June 15, 2007
(72 FR 33284).

Docket ID No. **EPA-HQ-RCRA-2005-0017**

Dear Ms. Bodine:

API is the primary not-for-profit trade association of North America's
oil and natural gas industry, and represents nearly 400 members involved
in all aspects of the oil and natural gas industry, including
exploration, production, transportation, refining, and marketing. Their
operations produce a variety of materials, and some of these materials
are potentially subject to Resource Conservation and Recovery Act (RCRA)
regulations. A number of the secondary materials produced by API's
members' operations are beneficially recycled or reused, and others
could be if the regulatory climate were amenable. API thus has an
interest in ensuring that changes to the Comparable Fuels Exclusion are
reasonable, efficient, and environmentally protective.

EPA, in a proposed rule published on June 15, 2007 (72 FR 33284), would
expand the comparable fuel exclusion under the rules implementing
subtitle C of the Resource Conservation and Recovery Act (RCRA) for
fuels that are produced from hazardous waste but which generate
emissions that are comparable to emissions from burning fuel oil when
such fuels are burned in certain industrial boilers. The revised rule
would establish a new category of excluded waste-derived fuel called
emission-comparable fuel (ECF). The Agency has requested comments on a
number of issues associated with this expansion of the Comparable Fuel
Exclusion. API appreciates the opportunity to examine the proposal and
to provide comments.

API finds that the proposed conditions to be imposed on an ECF material
are complex in the extreme, and this complexity will discourage the use
of the proposed exclusion. The steps that are proposed to achieve
exclusion are many, covering hundreds of requirements from a variety of
rules and many pages of regulatory text, within the expanded 40 CFR §
261.38 itself as well as in many referenced regulations found elsewhere
(e.g. many specified sections of 40 CFR parts 60, 63, 70, 71, 112, &
264) . By way of illustration, we have counted well over 400 specific
regulatory conditions, beyond those already applicable to the existing
Comparable Fuel exclusion, which may apply to newly excluded ECF
material. This approach appears to be entirely unprecedented among the
many previous and existing Definition of Solid Waste exclusions in 40
CFR § 261.2 and 261.4, and seems particularly unnecessary within the
context of this specific proposal, which is limited to a very narrow
expansion of the existing Comparable Fuels exclusion with respect to
certain oxygenates and hydrocarbons that are being properly recognized
as legitimate fuel constituents.

The proposed level of complexity and extensiveness of detailed
conditions is also inconsistent with a number of EPA statements
throughout the preamble related to minimizing unnecessary burden; for
example:

-   "These additional hazardous secondary materials could be burned for
    energy recovery without imposing unnecessary regulatory costs on
    generators...." \[72 FR 33286\].

-   "....we are proposing....to condition the exclusion on certain
    storage conditions similar to those applicable to commercial
    products and commodities analogous to ECF, namely fuel oil and other
    commercial organic liquids" \[72 FR 33290\], but then proceeding to
    impose many additional storage conditions to which nether fuel oil
    nor commercial organic liquids are subject, such as RCRA Subtitle C
    hazardous waste regulatory requirements (40 CFR § 264, subparts C
    & J) and Organic Liquid Distribution MACT requirements in 40 CFR §
    63 for chemicals that are not Hazardous Air Pollutants.

-   Concession that "....it could be argued that the only controls
    needed to ensure good combustion conditions and destruction of
    hazardous organics in ECF would be continuous monitoring of carbon
    monoxide and a requirement to fire ECF into the flame zone...." \[72
    FR 33294\], but then proceeding to require many more conditions
    related to burning the ECF, despite this exclusion being limited to
    a short list of oxygenates and hydrocarbons that represent
    legitimate fuel constituents.

-   Recognition that "...continuing to regulate these waste-derived
    fuels as hazardous waste would treat a potentially valuable fuel
    commodity\...as a waste without a compelling basis...." \[72 FR
    33286\] yet imposing many of those same RCRA Subtitle C hazardous
    waste regulatory requirements (from 40 CFR § 264, subparts C & J) on
    the excluded material. In addition, EPA acknowledgements that:

    -   "The CO controls for ECF boilers plus the requirement to fire
        ECF into the primary fuel flame zone are equivalent to the
        controls on organic emissions for hazardous waste boilers...."
        and "The other ECF boiler controls are more restrictive than
        controls that apply to hazardous waste boilers...." (72 FR
        33291, Footnote 19),

    -   "...the ECF boiler conditions proposed today are at least as
        stringent as the conditions provided by § 266.110...." which
        apply to hazardous waste boilers (72 FR 33294, Footnote 33),

    -   "We propose to adopt the provisions for automatic feed cutoff
        systems that apply to boilers that burn hazardous waste...." (72
        FR 33296)

-   In contrast, at 72 FR 33305, EPA appropriately rejects adopting
    hazardous waste tank closure requirements for ECF tanks on the basis
    that "...those provisions are inappropriate for closure of a tank
    that stored a product -- ECF." That same logic, rejecting the
    temptation to apply hazardous waste requirements to products, could
    and should be used in many of the other areas where hazardous waste
    regulatory conditions are imposed on excluded ECF.

At 72 FR 33308, EPA states that they considered the option of imposing
no specific new controls, instead relying on currently applicable
controls for commercial products, but ultimately rejected that approach
after what appears to be only a fairly cursory consideration. API would
argue, however, that this option should have been selected for this
narrow expanded exclusion, particularly recognizing that ECF would
continue to be subject to all of the existing conditions in § 261.38
already established for Comparable Fuel (which are themselves more
extensive than other DSW exclusions). EPA provides no basis for
concluding that the many existing Safety and Environmental regulations
that apply to products of this type would be inadequate or result in
harm to human health or the environment if relied on to ensure proper
ECF management.

In a similar vein, EPA states at 72 FR 33309 that they considered
whether to propose storage conditions for the currently excluded
comparable fuel, but concluded that was unnecessary. In support of that
conclusion, EPA says "we do not believe that applying the SPCC controls
is warranted at this time because we are not aware of evidence of
improper storage of these comparable fuels." Just as the existing
product storage regulations have proven adequate for comparable fuel, so
too would they prove equally adequate for ECF. There is simply no reason
to conclude otherwise.

API, in conclusion, supports EPA's intention of expanding the comparable
fuels exclusion so that it includes legitimate fuel-value components.
However, we disagree with the need for extensive and complex conditions
proposed to achieve that goal. Rather, we believe that the proposed
complexity will discourage companies from taking advantage of the
exclusion and will thus relegate materials that could be legitimately
used in commerce as fuels to lesser uses or to non-utilized waste. This
will be a loss of energy resources and a missed opportunity. API
suggests that there are more straightforward and efficient ways to
accomplish this narrow expansion of the comparable fuels exclusion and
to meet the "resource conservation and recovery" spirit of RCRA than the
complex pathway proposed in this rule. API is willing to work with the
Agency to develop a suitable and less onerous pathway toward efficient
and safe utilization of fuel value secondary materials so they can serve
as safe energy resources.

As EPA deliberates on its approach to the supplemental proposed rule, we
ask that the Agency consider our comments and adopt the recommendations
provided by API. If there are any questions about these comments, please
contact me at (202) 682-8339 or <purcellt@api.org>.

> Sincerely,
>
> Thomas Purcell
>
> Sr. Environmental Scientist