NOTICE OF DATA AVAILABILITY (NODA)

                RESPONSE TO COMMENT DOCUMENT


                           PART II



                          June 1998
























                             
           U.S. Environmental Protection Agency
                   Office of Solid Waste, OSW (Note:  Office of Solid Waste, OSW, was renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009)401 M Street, SW
                    Washington, DC 20460                     

                     TABLE OF CONTENTS


II.  Clarifications and Corrections. . . . . . . . . . .II-1
     A.   Headworks Exemption. . . . . . . . . . . . . .II-1
     B.   Jurisdictional Explanation of Off-Specification
          Product and Fines from Thermal Processes Used as
          Product. . . . . . . . . . . . . . . . . . . II-11
          1.   EPA's jurisdiction over coke fines  . . II-24
          2.   EPA Invites Comment on the Potential Impact
               of Recycling Hazardous Waste to the
CokerII-30
               a.   Favors Exclusion . . . . . . . . . II-30
               b.   Disagrees with Exclusion . . . . . II-36
               c.   Quench Coking. . . . . . . . . . . II-78
               d.   Supplemental comments on
clarificationII-98

III. Land Disposal Restrictions - Revised Treatment
     Standards for Spent Catalysts from Hydrotreating (K171)
     and Hydrorefining (K172). . . . . . . . . . . . . III-2

IV.  Other Comments. . . . . . . . . . . . . . . . . . .IV-1
     A.   Conditional Listings . . . . . . . . . . . . .IV-1
     B.   Individual versus Population Risk. . . . . . IV-18
     C.   Waste Management Practices Assessed. . . . . IV-26
     D    BIF Rule Exemption . . . . . . . . . . . . . IV-34
     E.   Implications of Listing Catalysts. . . . . . IV-35


     II.  Clarifications and Corrections

II.A.     Headworks Exemption

Comment 1:  EPA Has Correctly Expanded the Proposed
Headworks Exemption to Cover Water Associated with Catalyst
Management.

The proposed exemptions are consistent with EPA's listing
criteria in 40 CFR Section 261.11(a)(3).  These criteria
allow EPA to list only those wastes shown to pose
substantial hazards to human health or the environment and
require EPA to consider the risk reducing effects of other
regulatory programs.  EPA correctly points out that the
exposure pathways from the management of wastewaters
associated with CSO sediment and hydroprocessing catalysts
in the refinery wastewater treatment system are sufficiently
regulated under the Clean Water Act, the Clean Air Act, and
the existing RCRA hazardous waste listing for refinery
wastewater treatment sludges (K048, K051, F037, and F038). 
(NPRA, 00004, pg 5)

Response: The Agency acknowledges the commenter's support. 


Comment 2:  In 1995, EPA proposed to exempt from regulation
CSO sludge (and crude oil tank sludge if EPA listed the
waste as hazardous) where the residuals are transported from
the point of generation in the refinery by any means and
subsequently discharged into the refinery wastewater
treatment system.  In the NODA, EPA proposes expanding the
exemption to the two spent catalysts the Agency intends to
list as hazardous in this rulemaking, and solicits comment
on risk analyses associated with this practice EPA conducted
for CSO sludge and the two spent catalysts.  (EDF, 00006)
 
Response: See following responses to Comments 2.a through
2.c.

Comment 2.a:  Prior to addressing the new risk analyses, the
most important aspect of the proposed exemption is whether
it is limited to dilute wastewaters resulting from the
cleanout of tanks or other units containing these wastes, or
whether the proposed exemption applies to the listed waste
(sludge) itself.  The proposed regulatory language would
apply the exemption to both the waste and cleanout
wastewaters.  In addition, the NODA risk assessment EPA
conducted for CSO sediment is based on disposal of the waste
itself in the wastewater treatment system.

Ironically, the one facility that reported disposing of CSO
sludge in 1992 has indicated to the Agency that the practice
will not be repeated because of the expense associated with
increased wastewater treatment sludge generation and
subsequent disposal.  Therefore, EPA conducted a risk
assessment and proposed an exemption from RCRA for CSO
sludge, based upon the Agency's consideration of a waste
management practice at one facility covering 250 MT of waste
that the facility indicates will never be repeated.  The
Agency's willingness and ability to perform a risk
assessment in this context stands in stark contrast to the
Agency's refusal to conduct risk assessments and consider
current and potential management practices for larger
quantity of wastes, as discussed in Section IV of these
comments.     

Further, while the NODA contains no new information with
respect to crude oil tank sludge potentially subject to the
exemption, the CSO experience is instructive.  Through the
exemption as proposed, by including the actual waste within
the scope of the exemption, EPA would likely be encouraging
the generation of larger quantities of hazardous wastewater
treatment sludge, a result completely at odds with the waste
minimization policy and objectives articulated by Congress
in Section 1003 of RCRA.  Moreover, the experience
demonstrates wastewater treatment systems are optimally
designed and operated to treat wastewaters, therefore the
Agency should not be creating RCRA exemptions that would
encourage the suboptimal use of such systems.  These
fundamental shortcomings in the exemption as proposed can be
added to the deficiencies discussed by EDF in its comments
on the proposal, including the violation of the dilution
prohibition and minimized threat treatment requirements in
the LDR program.

Accordingly, while EDF welcomes the Agency's statement in
the NODA preamble that it "was not the Agency's intent to
foster the discharge of all CSO sediments to wastewater
treatment systems", the lack of preamble discussion
regarding crude oil tank sludge potentially covered by the
proposed exemption, the fact that EPA performed the NODA
risk assessment on the CSO sludge itself, and the failure by
EPA to propose for public comment specific language to limit
the potential scope of the exemption, cause the scope issue
to remain a matter of great concern.    

Insofar as any wastewater treatment system-related exemption
is appropriate in this rulemaking, it should be limited to
dilute wastewaters associated with specific allowable
generation practices, in much the same manner as 40 CFR
268.1(e)(4) is currently drafted.  The express limitation
to wastewaters should incorporate the regulatory definition
of wastewaters in Part 268.  "Dilute" should be expressed as
a maximum concentration of contaminants allowed into the
facility's wastewater treatment system.  And the generation
practice should be limited to rinsate from the cleaning of
tanks or other units containing the specified waste,
consistent with EPA's professed intent.  Significantly,
these limitations should also apply to the existing K050
exemption, because the existing exemption suffers from the
same flaws as the proposal.  (EDF, 00006)

Response: EPA reiterates its intent, as cited by the
commenter, that the headworks exclusion is not meant to
serve as an incentive to discharge CSO sediment to the
wastewater treatment plant.  EPA performed an analysis of
this practice as described in the NODA Supplemental Listing
Background Document and as cited by the commenter. 

The purpose of the NODA exercise was to develop a "what if"
scenario, representing the extreme end of CSO washwater
loading to wastewater treatment.  Such a scenario was
evaluated in favor of a much more complex scenario, such as
one limiting solids loadings or constituent concentrations
in washwaters.  EPA concluded that because its "what if"
scenario showed negligible risk, then no restrictions on
washwater composition would be required.  Finally, EPA notes
that refineries have no incentive to discharge solids to
wastewater treatment since the solids would end up as F037
hazardous waste, and one commenter provides information
stating that the quantity of such primary sludge would be
much greater than the quantity of solids initially dumped
into the system (see comment F-95-PRLP-00014, Chevron
Corporation). 

EPA presented analysis in the NODA to support the headworks
exemption for both wastewater associated with CSO tank
cleaning, and the expansion of the exemption to include
water discharges from the clean-out and turn around of
hydrotreating and hydrorefining catalytic units.  After
considering all comments on these analyses, EPA has decided
to promulgate the expanded headworks exemption.  As noted in
the proposal (see 60 FR at 57781), EPA intended to include
crude oil storage tank sediment in the exemption, if this
waste was listed.  Thus, EPA is also promulgating the
exemption for K169 as well.  EPA notes that it completed a
similar analysis for crude oil storage tank sediment to
respond to the commenter's concerns expressed about this
waste (see Additional Listing Support Analysis, 1998 in the
docket).  EPA concluded from these analyses that any impact
on the downstream wastewater treatment sludge or wastewaters
would be negligible.

In amending the headworks exemptions under 40 CFR
261.3(a)(2)(iv)(C), the Agency intends the exemption to
apply to wastewaters from cleaning operations when these
wastewaters reach the headworks of the wastewater treatment
system.  As noted in the proposal, however, the exemption is
not intended to allow the discharge of the entire
wastestream (i.e., tank sediments or spent catalysts), but
rather dilute waters generated during tank or unit clean-
outs and dewatering operations.

Finally, EPA notes that the existing exemption for heat
exchanger bundle cleaning sludge (K050) was not explicitly
reopened for comment, therefore the Agency is not
considering any modification of this exemption in this
rulemaking.

Comment 2.b:  By promulgating these limitations, EPA would
address EDF's strongest objections to the proposed
exemption.  However, a major deficiency in the NODA risk
assessments warrants comment.  In the risk assessment, EPA
entirely ignored the contaminants in other wastes and
wastewaters that are codisposed with the potentially exempt
waste in the wastewater treatment system.  EPA simply and
falsely assumed that the exempt wastes were mixed with clean
water.  However, the reality is the exempt wastes are mixed
with many contaminants in the wastewaters, including the
particular contaminants in the exempt wastes.  The result is
a pollutant mixture that bears no relationship to the
assessed scenario.  Therefore, EPA has not estimated the
true risk posed by the exemption, when actual and potential
co-disposal is considered.  (EDF, 00006)

Response:  EPA notes that its analysis was an attempt to
gauge the significance of a worst-case discharge into the
treatment system to determine if any significant incremental
risks would result from the practice.  EPA found no such
incremental risks and therefore concluded that the exemption
was appropriate.  In fact, EPA found that risks due to the
exempted wastes would be extremely small.  EPA disagrees
with the commenter's proposed approach.   Further discussion
of EPA's views on the commenter's co-disposal presumptions
are presented elsewhere in this response to comments.

Comment 2.c:  Finally, if EPA does not limit the scope of
the exemption to dilute rinsate, the CSO risk assessment is
flawed because it was based on the waste volumes and
characteristics of the one facility reporting waste
discharge into a wastewater treatment system in 1992. 
Since that facility no longer intends to employ the
practice, and other facilities can avail themselves of the
exemption, a valid risk assessment must be based on the
potential for any refinery generating the waste to take
advantage of the exemption, absent a technical or legal bar
preventing a refinery from doing so.  Certainly, onsite
wastewater treatment systems are potentially available for
this purpose throughout the refinery industry.  (EDF, 00006,
pg 67)

Response:  As noted above in response to comment 2a in this
section, EPA believes that there are significant
disincentives for refineries to discharge high solids
content waste to their wastewater treatment system.
Certainly, on-site wastewater treatment systems are
available for this purpose throughout the refinery industry. 
EPA based its evaluations on the actual waste quantities
used in this rarely practiced management scenario.  EPA has
no reason to believe, for example, that a quantity of waste
destined for land treatment would be managed in a wastewater
treatment system.  EPA points our that a significant
fraction of the wastes being listed must already be handled
as hazardous, because they exhibit the TC or other
characteristics.  Yet despite this apparent incentive to
avoid costly Subtitle C management, the disposal of tank
sediment directly into the wastewater treatment system was
extremely rare (i.e., only once each for CSO and crude oil
storage tank sediments).

Comment 3:  EPA's Expansion of the Proposed Headworks
Exemption To Cover Water Associated with Catalyst Management
Is Appropriate

In response to comments, EPA proposes to expand the proposed
headworks exemption to include water associated with the
management of spent hydrotreating and hydrorefining
catalysts.  62 FR 16749 (April 8, 1997).  EPA is correct
that the same rationale applies to water associated with
catalyst management as applies to the original proposed
exemption for waters associated with the management of CSO
sediment.  See Id.  In the absence of the proposed
exemption, if CSO sediment (or spent catalyst) are listed as
hazardous waste, the entire volume of refinery wastewater
that comes into contact with water used to manage those
residuals could potentially be labeled "hazardous waste"
under the "derived from" and mixture rules. This result
could not be justified on the basis of reducing any
incremental risk to human health or the environment.  (API,
00009, pg 26)

Response: The Agency acknowledges the commenter's support. 
The results of EPA's analysis show that little risk is
likely to be incurred by this practice.  The use of water
during the catalyst changeout process provides a number of
benefits, including lowering emissions of volatile organics,
lowering the risks associated with the catalysts' potential
self-heating nature, and minimizing risk to workers entering
the confined space of the catalytic reactors during
changeouts.  EPA, therefore, has concluded that it is
appropriate to include this low risk, beneficial practice
under the headworks exemption.

Comment 4:  The Headworks Exemption Is Amply Supported by
Regulatory Precedent, the Listing Criteria, and the Case
Law

The concept of the headworks exemption is now very old and
well-accepted.  EPA introduced the concept in 1981 in
recognition that the mixture and derived-from rules, if
applied literally and without exception, could wreak havoc
on wastewater treatment systems with no benefit to human
health and the environment.  See 46 Fed. Reg. 56582 (Nov.
17, 1981).  The Agency promulgated several exemptions from
the mixture rule for mixtures of listed hazardous wastes and
wastewater treated in a system subject to regulation under
the Clean Water Act, including mixtures of wastewater and
heat exchanger bundle cleaning sludge in the petroleum
refining industry (K050).  See 40 CFR 261.3(a)(2)(iv). 
The proposed exemptions in the present rulemaking are merely
logical extensions of those long-standing exceptions to the
mixture rule.

Moreover, the proposed exemptions are consistent with EPA's
listing criteria in 40 CFR 261.11(a)(3).  In particular,
those criteria allow EPA to list only those wastes shown to
pose substantial  hazards to human health or the
environment, and require EPA to consider the risk-reducing
effects of other regulatory programs.  40 CFR 261.11(a)(3)
and (a)(3)(x).  In Dithiocarbamate Task Force v. EPA, 98
F.3d 1394 (1996), the D.C. Circuit made clear both that EPA
must give serious consideration to each of the factors
enumerated in the listing criteria, including the risk
reducing effects of other regulatory programs, and that EPA
must tailor its listing descriptions to avoid regulating
wastes or classes of wastes that do not pose substantial
risk. 

Here, EPA correctly points out that exposure pathways from
management of wastewaters associated with CSO sediment and
hydroprocessing catalysts in the refinery wastewater
treatment system are already regulated under the Clean Water
Act, the Clean Air Act, and the existing RCRA hazardous
waste listings for refinery wastewater treatment sludges
(K048, K051, F037, and F038).  Listing Support Analyses 8,
p. 1.  Moreover, the Agency specifically assessed the risks
posed by management of those residuals in a worst case
scenario and found only insubstantial risks.  Id. at 8, 9. 

EPA's risk assessment for the headworks exemption clearly
indicates that disposal of water from washing of storage
tanks containing CSO sediment or hydrotreating or
hydrorefining catalysts does not result in significant risks
to off-site receptors. In both cases, conservative
assumptions in the risk assessment indicate that EPA has not
underestimated potential risks.  For example, in the case of
CSO sediment, EPA evaluated risks assuming that CSO
sediment, not just the water, was discharged directly to the
wastewater treatment facility. (See N.61 Supra)  Even under
these extreme conditions, total risks from consumption of
aggressive biological treatment (ABT) effluent released
directly into groundwater are less than 4 x 10-9 and total
risks from exposure to ABT sludge are expected to be 800 to
79,000 times less than the risks from landfilling of
untreated CSO sediment.

Similarly, for hydroprocessing wastewaters, EPA
conservatively used the maximum concentration reported in
drill waters, assumed that the dissolved concentration of 
inorganic chemicals was equal to measured values, and
evaluated direct exposure to wastewaters exiting the
treatment facility.  Again, these conditions resulted in
noncarcinogenic hazards from direct consumption of
wastewaters less than 0.1.  In the case of exposure to ABT
sludge, EPA has correctly calculated that risks from
landfilling would be 20,000 to 9 million times less than
those calculated for untreated waste.

Thus, the proposed headworks exemption is necessary to avoid
unnecessary regulation of demonstrably insubstantial risks. 
(API, 00009, pg 27)

Response: The Agency acknowledges the commenter's support.

Comment 5.a:  EPA Should Clarify the Scope of the Exemption
in the Final Rule

As EPA is aware, water is used in any number of different
ways in the proper handling of CSO sediment and spent
hydroprocessing catalysts.  For example, water can be used
merely to flush loose material, or (under high pressure) to
drill out hardened material, or, in-situ, to steam strip or
water wash material to remove volatiles.  In the NODA, EPA
seems to suggest that the exemption might be limited to
waters used to "wash the tanks out to remove the last
residues and make the tanks suitable for inspection."  62 FR
16749 (April 8, 1997).  Any such limitation would render the
exemption of little practical utility, given the many ways
in which water contacts the residuals during their
management.  Thus, EPA should clarify in the final rule that
the exemption extends to all wastewaters derived from the
management of the residuals, as long as the wastewaters are
managed in a system subject to the Clean Water Act.

Response: EPA is aware of the following uses of water
associated with the generation of K170 to K172.  In
reference to K170, water is generated (1) from centrifuging
sludge removed from the tank, and (2) as a "final rise" as
mentioned by the commenter.  In reference to K171 and K172,
water is generated from (1) drilling the catalyst, (2) steam
stripping or washing, (3) pad drainage.  In the April 8th
notice, EPA proposed to expand the exclusion to include
drill water. 

EPA believes that the headworks exemption is appropriate for
waters generated from all of these practices, because these
aqueous residuals would be dilute and contain low levels of
the original listed wastes.  Therefore, the Agency is
finalizing the exemption for all the wastes that are being
listed: CSO sediment, crude oil sediment, spent
hydrotreating catalysts and spent hydrorefining catalysts. 
As noted in the proposal, however, the exemption is not
intended to allow the discharge of the entire wastestream
(i.e., tank sediments or spent catalysts), but rather dilute
waters generated during tank or unit clean outs and
dewatering.


Comment 5.b:  On a related matter, API recognizes the
concern of one commenter that in the absence of expressly
limiting the exemption to dilute wastewaters, it could be
lawful to discharge the entire volume of a residual, such as
CSO sediment, to the refinery sewer.  See 62 FR 16749-50
(April 8, 1997). Assuming such a practice were legal under
the exemption, such wholesale dumping is clearly not within
the intent of the exemption and would be effectively
precluded for very practical reasons.  There are major
disincentives to such a practice, in particular the huge
expense that would be required to manage the increased
volume of listed wastewater treatment sludge.  Similarly,
such a practice would be directly contrary to the waste
minimization programs that have long since become
institutionalized in the petroleum refining industry.

Moreover, EPA has determined that even in such a worst case
scenario -- one that occurred once in 1992, but is highly
unlikely to recur -- the risks presented are insubstantial. 
This, coupled with the impracticality of crafting a
definition of "dilute wastewaters" that reasonably covers
all situations, militates against any express limitation on
the headworks exemption.  

Indeed, the Dithiocarbamate decision strongly suggests that
where a management practice is unlikely to be used in the
future, even though it may have been used once or twice in
the past, it is improper to list a material based on the
mere possibility that it could be used again.  See 98 F.3d
1404.  Based on that principle, and based on the absence of
any substantial risk posed by management of the residuals in
the wastewater treatment system, the Agency should not
further limit or qualify the headworks exemption.  (API,
00009, pg 28)

Response: The Agency acknowledges the commenter's support.


Comment 6: The proposed headworks exemption are necessary to
avoid regulation of demonstrably insubstantial risks.  As
EPA is aware, water is used in any number of different ways
in the proper handling of CSO sediment and spent
hydroprocessing catalyst.  For example, water can be used
merely to flush loose material, or (under high pressure) to
drill out hardened material, or, in situ, to steam strip or
water wash material to insure safe removal.  In the NODA,
EPA seems to suggest that the exemption might be limited to
wastes used to "wash the tanks out to remove the last
residues and make the tanks suitable for inspection."  62 FR
16749 (April 8, 1997).  Any such limitation would render the
exemption of little practical utility, given the many ways
in which water contacts the residuals during their
management.  Thus, EPA should clarify in the final rule that
the exemption extends to all wastewaters derived from the
management of the residuals, as long as the wastewaters are
managed in a system subject to the Clean Water Act.

Response: As noted in response to Comment 5.a, EPA believes
that the headworks exemption is appropriate for waters
generated from all of these practices, because these aqueous
residuals would be dilute and contain low levels of the
original listed wastes.  However, the exemption is not
intended to allow the discharge of the entire wastestream
(i.e., tank sediments or spent catalysts), but rather dilute
waters generated during tank or unit clean outs and
dewatering.


Comment 7:  EPA is Correct in Expanding the Headworks
Exemption to Cover Water Associated with Catalyst
Management.

As EPA has stated, sufficient controls are in place within
refineries to manage minor residuals that are drained to the
refinery sewer systems.  These residuals will be removed in
the system and become listed hazardous wastes.  Without
these exemptions, refiners would be forced to either use
more costly or more dangerous methods in managing catalyst
or be forced to collect and ship these wash waters off-site.

This off-site management method would not only be costly,
but could lead to some potential spill events during
handling and transportation that could have an impact on the
environment.  (Sun, 00008)

Response: See response to Comment 5.a.

Comment 8:  EPA has appropriately noticed its intent to
grant the headworks exemption for water used to remove
hydrotreating and hydrorefining catalyst from the reactor. 
We believe the data previously submitted and EPA's analysis
supports this conclusion and we strongly support this
action.  The use of water reduces the potential rate of
oxidation of the catalysts as it is exposed to and during
its removal and handling.  Use of water facilitates the safe
handling of these materials and is an important part of our
operations.  If these catalysts were listed and these waters
considered derived from hazardous, the costs and risks
associated with alternative management methods would be
significant and without environmental benefit.

The EPA asks how to ensure that the headworks exemption is
not a loophole to dump catalyst or CSO sludge in the sewer. 
Chevron does not believe a loophole exists for two important
reasons.

First, there is a significant economic penalty for this
action.  Any solid material dumped in the sewer will emerge
again as hazardous waste as all wastewater treatment sludges
upstream of biological treatment are already listed as
hazardous waste (F037, F038, K051 and K048).  Solids in
these wastewaters would be settled out prior to biological
treatment.  These solids must then be periodically removed
from the system and managed as hazardous waste.  The
wastewater sludge that these solids generate is likely to be
many times the original weight of the solids in the water
(studies have shown that one pound of solids entering a
sewer will generate as much as ten pounds of sludge due to
the oil water-bacteria emulsion that forms around these
solids).  In addition to the increased costs associated with
increased volumes, these sludges are particularly difficult
to manage due to these emulsions.  Thus, there already is a
severe economic penalty associated with allowing solids into
a sewer.  The refinery in EPA's case study confirms the
reality of this economic penalty.

Secondly, sewers are critical to a refinery's operation. 
Placement of waters with significant solids content into a
sewer runs the risk of plugging the sewer.  Not only will
the sludge still be hazardous when removed, but the refinery
operations run the risk of being interrupted with
astronomical costs.  Even if the sewer is not plugged, a
refinery's wastewater treatment system could be adversely
impacted if it were overlooked with solids, endangering CWA
compliance.

Thus, there is no need or justification for EPA to further
define allowable wastewater solids content.  To do so would
create unneeded analytical, record keeping, and related
compliance burdens.  It is not appropriate to penalize all
refineries for this one refinery's "ill advised" act. 
(Chevron, 00014)

Response:  The Agency agrees with this commenter that there
are financial disincentives to discharging excess solids to
the refinery wastewater treatment system.  Furthermore, the
Agency observes that many refineries conduct deoiling of
tank contents and sediments prior to disposal and tank
inspection.  This practice reduces sediment quantities by an
average of 40 percent, with a substantial savings of raw
materials (i.e., oil recycled back to the refining
operations) and disposal costs.  Upon promulgation of
today's listings and the exclusion for oil-bearing hazardous
residuals, EPA believes even greater amounts are likely to
be subjected to oil recovery and waste minimization.  Any
water in the tank clean out material will likely be
separated as a part of the deoiling process, and would be
discharged to the wastewater treatment plant.  Thus, with
respect to some commenters' concerns regarding impacts on
the wastewater treatment system, these recycling activities
will likely increase and further reduce the load on the
treatment system.

Comment 9:  Texaco supports the clarification that the
headworks exemption proposed for 261.3(a)(2)(iv)(C) will
also include wastewater containing the two spent catalyst
wastes (K171 and K172), as well as the CSO sediment (K170). 
However, EPA placed this exclusion in 40 CFR Section 261.3
(a)(2)(iv)(C) as an extension of that exclusion.  40 CFR
261.3(a)(iv) exempts wastewater, the discharge of which is
subject to regulation under section 402 or section 307(b) of
the Clean Water Act, but this exemption does go on to
exclude 'wastewater facilities which have eliminated the
discharge of wastewater'.  Texaco requests EPA to clarify
that the headworks exemption does extend to zero discharge
facilities which have Clean Water Act equivalent wastewater
treatment units as explicitly provided for in other RCRA
rulemakings associated with wastewater discharge exemptions
for CWA or CWA-equivalent wastewater treatment system
discharges (e.g. 40 CFR 268.1( c )(4)( iii ) and 40 CFR
268.3 (b)).  This clarification is justified because the
CWA-equivalent wastewater treatment systems meet a standard
of treatment the same as the CWA discharge systems, but
simply are not explicitly included in the current regulatory
language of 40 CFR 261.3.  (Texaco)

Response:  As the commenter noted, 40 CFR 261.3(a)(iv)
specifically includes "wastewater facilities which have
eliminated the discharge of wastewater" in the exclusion. 
EPA clarifies that this exemption will include zero
discharge facilities which have Clean Water Act equivalent
wastewater treatment units. 


II.B.     Jurisdictional Explanation of Off-Specification
          Product and Fines from Thermal Processes Used as
          Product (see also Section III.A below)

Comment 1:  The NODA Provides Additional Support for the
Prompt Promulgation of the Exclusion for Oil-Bearing
Residuals Inserted into the Refining Process

In the original proposal, EPA proposed to expand the
recovered oil exclusion in 40 CFR 261.4(a)(12) to exclude
from the definition of solid waste any oil-bearing residuals
produced in the petroleum industry (including petrochemical
industry) and inserted into the petroleum refining process,
including the coking process.  In the NODA, EPA responded to
the concerns raised by comments objecting to the proposed
exclusion and therefore has a sounder basis for finalizing
the proposed exclusion.  NPRA urges EPA to promulgate this
exclusion without further delay.  (NPRA, 00004, pg 6)

Response: See response to comment 2 below.

Comment 2:  EPA Should Promulgate the Exclusion as Soon as
Possible
     
The promulgation of the expanded recovered oil exclusion is
long overdue.  The process of reforming the definition of
solid waste in the context of legitimate refinery production
of fuels, which began no less than nine years ago, has
inappropriately become hostage to the delays in finalizing
the proposed listing determinations.  Because of this, and
because the record amply supports the proposed exclusion,
EPA should promulgate the exclusion without further delay. 
(API, 00009, pg 26)

Response: In today's final rulemaking, EPA is promulgating
an exclusion from the definition of solid waste for oil-
bearing secondary materials generated within the petroleum
refining sector and returned to the refining process.  As
finalized, the exclusion from the definition of solid waste
for oil-bearing residuals from specified petroleum refining
sources is expanded to allow the use or reuse of a broader
array of residuals from petroleum refining operations by
inserting the materials into any part of the refinery
process, including the coking process.  The Agency notes
that the exclusion is conditioned on there being no storage
or placement of the secondary materials on the land and no
speculative accumulation.  In addition, the recycling of
oil-bearing secondary materials can not result in coke
products that exhibit any of the characteristics of
hazardous waste.

In addition, in the final rule, EPA clarifies that the
exclusion for oil-bearing secondary materials returned to
the refining process only extends to the materials actually
re-inserted into the refinery process.  In cases where oil-
bearing secondary materials are reclaimed prior to re-
insertion, any residuals that may result from the
reclamation process and that are not returned to the
refinery process retain the hazardous waste listing and must
be managed as hazardous wastes.  In the final rule, the
Agency modifies the proposed listing descriptions for listed
refining wastes to include any residuals from the processing
of listed hazardous wastes.

Comment 3:  Phillips must call to your attention several
disturbing aspects of this particular rulemaking.  First is
EPA's failure to promulgate the proposed exclusion from the
definition of solid waste [60 FR 57747, November 20, 1995]
for oil-bearing residual from certain petroleum sources that
are reinserted into the petroleum refining process.  This
issue has been in front of EPA since 1988 and unfortunately
has been arbitrarily coupled to this rulemaking.  As a
result, its promulgation is currently hostage to the series
of delays that has extended this rulemaking deadlines from
October 1996 until May 1998.  Phillips urges EPA to fast-
track the promulgation of the oil-bearing residual
exclusion.  Considering the previous record of negotiated
delays orchestrated by EPA and EDF, we have little
confidence in even the current promulgation schedule.  If
EPA is able to commit the resources to conduct additional
studies in order to extend deadlines for this and other
"Mega-deadline" rulemakings (See EDF vs. Browner, Civ. No.
89-0598 D.D.C), it is certainly has the ability to complete
the work and promulgate a final rule resolve this long-
standing issue.  (Phillips, 00014)

Response: EPA acknowledges the commenter's concerns
regarding the rulemaking schedule.  In today's final rule,
the Agency is promulgating an exclusion from the definition
of solid waste for oil-bearing secondary materials generated
by the petroleum refining section and returned to the
petroleum refining process by inserting the materials into
any part of the refinery process, including the coking
process.  The Agency notes that the exclusion is conditioned
on there being no storage or placement of the secondary
materials on the land and no speculative accumulation.  In
addition, the recycling of oil-bearing secondary materials
can not result in coke products that exhibit any of the
characteristics of hazardous waste.

Comment 4:  EPA Should Clarify the Scope of the Exclusion by
Correcting Misleading and Inadvertent Statements In The
Background Document 
In its Listing Support Analyses, EPA makes the following
apparently inadvertent statement which could be
misinterpreted if not clarified properly:

     The scope of the proposed exemption is limited to the
     petroleum refining, such that the oil-bearing materials
     to be considered would be raw material-like and not
     contaminated prior to being recycled.  Listing Support
     Analyses 4, p. 1.

Mobil is concerned that this statement could be
misinterpreted to limit the exclusion to hydrocarbon-bearing
materials generated at a refinery.  While it is true that
the proposed exclusion is limited to "petroleum refining"
from the standpoint that the hydrocarbon-bearing residuals
must be inserted into the petroleum refining process
(including the coker), the hydrocarbon-bearing materials
being processed may be produced at facilities throughout the
petroleum industry, including co-located or commonly owned
petrochemical operations.  See 60 FR 57756, 57796 (Nov. 20,
1995).  No information is presented in the NODA that
suggests there is any reason to limit the exclusion to
hydrocarbon-bearing materials generated at the refinery
site.  The final rule and any accompanying preamble should
make clear that the exclusion extends to hydrocarbon-bearing
residuals produced throughout the petroleum industry that
are inserted into the refining process, including the coker.


In addition, to avoid misunderstanding and
misinterpretation, the apparent inadvertent reference to the
hydrocarbon-bearing residuals not being "contaminated prior
to being recycled" also needs correction/clarification. 
Hydrocarbon-bearing residuals, such as tank sediments or
sludges from wastewater treatment, contain some contaminants
and EPA is well aware of this fact.  It is for this reason
that the current recovered oil exclusion includes the
condition that the recovered oil be inserted into the
refining process at or before a point where some
contaminants are removed.  40 CFR 261.4(a)(12).  When the
exclusion is finalized, EPA should confirm that its
statement that the excluded materials are not contaminated
was incorrect.  (Mobil, 00002, pg 5)

Response: The Agency agrees that the statement from the
Background Document cited by the commenter is confusing. 
The preamble discussions included with today's final rule
clarify the scope of the final exclusion from the definition
of solid waste for oil-bearing secondary materials reused in
the petroleum refining process.  Generally, the Agency has
decided to limited the exclusion from the definition of
solid waste to oil-bearing secondary materials generated by
the petroleum refining sector (i.e., SIC code 2911) and
inserted into any part of the petroleum refining process,
including the coker.  Due to the limited amount of data
available to the Agency, EPA is not extending the exclusion
to hazardous secondary materials generated at petrochemical
plants or other industry sectors outside of the petroleum
refining sector.

The Agency clarifies that the exclusion from the definition
of solid waste promulgated today for oil-bearing secondary
materials is limited to only those oil-bearing hazardous
secondary materials that are generated within the petroleum
refining sector (SIC 2911).  (However, recovered oil from
the broad petroleum industry, as well as recovered oil from
certain petrochemical facilities, is also excluded.)  In the
context of oil-bearing hazardous secondary materials being
used in the quenching process, this limitation to the
exclusion is entirely consistent with the information
evaluated in making this determination (i.e.,  data
representing secondary materials currently used in the
quenching process -- F037, F038, and K048-K052).   EPA made
its determination to limit the exclusion for oil-bearing
secondary materials based on a review and analysis of
information on the types of secondary materials used by the
industry, their constituent components and the fact that the
coke product remains basically unchanged when such secondary
materials are used.  

The fact that the Agency only evaluated oil-bearing
secondary materials that were generated by the refining
sector in its determination is sufficient reason to limit
the exclusion to only refinery-generated secondary
materials.  However, a further reason relates to the concept
that oil-bearing secondary materials that are generated by
the refining process and continue to be processed in the
coker (by use in the quenching process) is more akin to an
on-going production process than would be the case for
secondary materials generated outside the refining sector. 
The Agency maintains that the quenching process is an
ancillary activity that is somewhat removed from the overall
production process; however, the fact that the secondary
materials are generated and used in another production
process (i.e., the overall coking operation) within the same
industry, imparts a closer association with the concept of
an on-going production process than would be the case for
secondary materials generated by a different industrial
sector.  The Agency has no information on which to base a
finding that the use of oil-bearing hazardous secondary
materials originating in a non-refinery sector of the
petroleum industry in the coke quenching process would be
anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector.

In one sense, the exclusion for recovered oil (as opposed to
"oil-bearing secondary materials"), which spans the scope of
the broad petroleum industry, reflects the Agency's
assessment that only those hazardous secondary materials
that are comparable to normal feedstocks (i.e., oil) used in
typical production processes should be excluded from RCRA
without attention to how they are processed.  Oil-bearing
secondary materials (as opposed to "recovered oil")
originating from a non-refinery sector have the potential to
be more waste-like and thus do not warrant an exclusion,
especially if their ultimate use is in the quenching
process.   Therefore, the Agency is today promulgating an
exclusion for secondary materials that are: 1) similar to
normal refining feedstocks, even if generated by a non-
refinery petroleum industry sector (i.e., recovered oil) and
2) both generated and used in any refinery production
process, including the coking operation (i.e., refinery-
generated oil-bearing hazardous secondary materials).

The further Agency notes, however, that non-refinery
generated oil-bearing secondary materials that are used in
the quenching process (i.e., hazardous wastes) may
nevertheless be legitimately recycled by use in the
quenching process, depending on there being oil recovered
during the quenching process and no adverse impact on the
coke product.  The coke product produced from such hazardous
wastes, as well as the fuels produced from the oil recovered
during the quenching, would be subject to the exemptions
found at 40 CFR 261.6(a)(3).

The Agency clarifies that the phrase "and not contaminated
prior to being recycled" should not have been included in
the cited statement from the background document.  The
Agency is restricting the exclusion for oil-bearing
materials to situations where the materials are not placed
on the land prior to reuse and to situations where there is
no speculative accumulation of the materials.  The Agency
understands that oil-bearing secondary materials destined
for reuse may not be free of all contamination and that some
level of contamination may be removed during the refinery
process.

In addition, the Agency is clarifying that the exclusion for
oil-bearing secondary materials returned to the refining
process only extends to the materials actually re-inserted
into the refinery process.  In cases where oil-bearing
secondary materials are reclaimed prior to re-insertion, any
residuals that may result from the reclamation process that
are not returned to the refinery process, and therefore may
be discarded, retain the original hazardous waste listing
and must be managed as hazardous wastes.  In the final rule,
the Agency modifies the proposed listing descriptions for
refining wastes to include any residuals from the processing
of listed hazardous wastes.

Comment 5:  EPA Should Promulgate The Exclusion As Soon As
Possible.
Finalization of the expanded recovered oil exclusion is long
overdue.  A process which began over nine years ago to
clarify the definition of solid waste within the context of
refinery production of fuels, from raw material and recycled
hydrocarbons, is still being held hostage to the proposed
listing determinations.  The expanded exclusion is long
overdue and fully justified by the record that EPA has
established.  EPA should promulgate the exclusion without
any further delay.  (Mobil, 00002, pg 6)

Response:  See response to Comment 2 (above).

Comment 6:  EPA's proposed exemption from RCRA regulation
for any "oil-bearing residuals" inserted into the coking
process suffers from a variety of serious shortcomings,
including the lack of storage standards prior to insertion,
the lack of a definition of "oil-bearing residuals", and the
inadequacy of the toxicity characteristic as the sole check
against toxics along for the ride.

In response to these concerns, the NODA materials contain
what EPA claims is a "worst case" assessment of petroleum
coke content if all the refinery sludges currently listed as
hazardous were inserted into petroleum cokers throughout the
United States.  EPA claims the analysis demonstrates the
contaminant levels in the hypothetical coke product would
not be significantly different from the concentrations in
actual coke product as reported in several literature
sources.

However, the NODA analysis is fundamentally flawed because:

     Wastes that may be listed as hazardous in the instant
     rulemaking, and characteristic refinery wastes, were
not
     reflected in the analysis, therefore the metal content
of
     these wastes were not considered;

     EPA assumes all cokers uniformly receive an evenly
     allocated volume-weighted distribution of wastes,
thereby
     unrealistically spreading the metal contaminants
     throughout the industry; 

     The mere dilution of the metals from the wastes in the
     larger quantities of coke does not demonstrate the
     hazardous constituents in the waste contribute to the
     value of the product (see discussion below); and

     The nickel content in EPA's hypothetical coke product
is
     almost three times lower than the Mobil coke (without
     waste added) included in EPA's data, indicating that
the
     baseline level of contaminants used by the Agency is
not
     truly indicative of product coke.

The nickel content of petroleum coke produced from waste is
particularly important since the toxicity characteristic
does not include nickel, therefore EPA's proposed exemption
provides no protection against the handling of nickel as a
toxic along for the ride.  Table A.3 of the NODA Groundwater
Risk Assessment provides the nickel concentration for some
of the refinery wastes in this rulemaking.  As this table
and the 1995 Listing Background Document indicate, the
nickel content of refinery waste often exceeds several
hundred parts per million, and can reach almost 5,000 ppm in
unleaded storage tank sludge, 25,000 ppm in hydrotreating
catalyst, and 14,000 ppm in hydrorefining catalyst.  Given
the open-ended nature of the term "oil-bearing residuals" in
the proposed exemption, any of these wastes may be inserted
into the coking process regardless of the resulting nickel
content of the coke, as long as there is a scintilla of oil
in the waste.  (EDF, 00006, pg 63)

Response:   The Agency is finalizing the proposed exclusion
from the definition of solid waste for oil-bearing secondary
materials generated by petroleum refineries and returned to
the refinery process with several conditions:

     The secondary materials may not be stored or placed on
     the land prior to being re-inserted into the refinery
     process.

     The secondary materials may not be accumulated
     speculatively.

     Use of the secondary materials in the refinery process
     must not result in the coke product exhibiting one or
     more of the hazardous waste characteristics.

The Agency clarifies that the exclusion, as promulgated, is
limited to oil-bearing secondary materials generated within
the petroleum refining sector (i.e., SIC 2911) and inserted
into the petroleum refining process.

The Agency notes that the main purpose of the petroleum
coking unit is to recover hydrocarbons from the oil
contained in the feedstocks for further refining. 
Similarly, the main purpose of using the secondary materials
in the coke quenching process is the energy-efficient
recovery of hydrocarbon from the residual oil in the oil-
bearing secondary materials.  The Agency also notes that
coke product produced using hazardous secondary materials in
the quenching process is basically similar to coke produced
without using secondary materials in the quenching process. 
Further, EPA notes that the making of anode-grade coke, the
most high-valued coke with the most stringent product
specifications, is likewise able to meet the product
specifications while using these secondary materials in the
quenching process.  

In considering whether the fact that the coke product
produced using secondary materials in the quenching process
continues to meet the product specifications (and, in fact,
demonstrates little change in the levels of contaminants
compared with coke produced without hazardous secondary
materials) is simply a result of dilution, the Agency
acknowledges that such dilution does occur.  However, there
are several other considerations.  For example, the primary
product of the petroleum coking process is the hydrocarbon
fraction recovered for use as feedstock in the production of
high-value fuel products, with the coke product being a co-
product of the coking process.  The Agency is convinced that
such recovery occurs when oil-bearing secondary materials
are used in the quenching process.  Given that the recovered
hydrocarbon is the primary product of using the secondary
materials in the quenching process, the simple fact that the
coke product (i.e., the co-product) continues to meet the
applicable product specifications and shows no appreciable
increase in risk carries more weight in the Agency's
evaluation.  In other words, demonstrating hydrocarbon
recovery is the key test in determining whether the
hazardous secondary materials actually serve a useful role
in the overall coking operation, rather than demonstrating a
net contribution to the coke (as opposed to no degradation
of the coke).  Acknowledging that there is a potential for
some degradation of the coke product, depending on the
constituent make-up of the particular secondary materials
used in the quenching process, the Agency believes that
economic forces, driven by product specifications and
competition for markets, will serve to ensure that the
quenching process is not simply a means of indiscriminately
disposing of hazardous wastes.  However, in cases where
there is sufficient degradation of the product (or co-
product) such that it no longer meets product specifications
or otherwise becomes unmarketable, the Agency would question
the legitimacy of using the secondary materials in the
quenching process.  Similarly, if there were no hydrocarbon
recovery stemming from the use of the hazardous secondary
materials in the quenching process, the Agency would
question the legitimacy of the activity.  (The Agency knows
of no such cases.)

With regard to the commenter's concern regarding the
potential for metals contained in hazardous secondary
materials to be "toxics-along-for-the-ride," the hazardous
metals found in the hazardous secondary materials generally
can be traced back to the metals found in the original crude
oil feedstock and so do not represent contaminants
introduced through means other than the continued processing
of the raw material feedstocks.  EPA's traditional concern
regarding unnecessary hazardous constituents being processed
and ending up in a product is mitigated in this case because
the Agency views this activity as the continual processing
of a raw material that contains the hazardous constituents,
with concentrations of constituents found in the feedstock
streams varying dependent on the point in the overall
production process.  In the context of a multi-step
production process, there is much less of an element of
discard of the hazardous constituents inherent in the
original raw material than there would be had these
secondary materials been generated by another industry or
had the hazardous constituents not been inherent to the
original raw material. 

Comment 7:  EPA Should Correct Certain Inadvertent
Statements in the Background Document About the Scope of the
Exclusion

In the Listing Support Analyses, EPA makes the following
apparently inadvertent statement:

     "The scope of the proposed exemption is limited to the
     petroleum refining, such that the oil-bearing materials
     to be considered would be raw material-like and not
     contaminated prior to being recycled."

Listing Support Analyses 4, p. 1.  It is true that the
proposed exclusion is limited to "petroleum refining" in the
sense that the oil-bearing residuals must be inserted into
the petroleum refining process (including a petroleum
coker).  However, the oil-bearing materials may be produced
at facilities throughout the petroleum industry.  See 60
Fed. Reg. 57796 (Nov. 20, 1995).  This is consistent with
the existing recovered oil rule in 40 CFR 261.4(a)(12),
and no information presented in the NODA suggests that there
is any reason to limit the exclusion to oil-bearing
materials generated on the refinery site.  The final rule
and any accompanying preamble should make clear that the
exclusion extends to oil-bearing residuals produced
throughout the petroleum industry that are inserted into the
refining process.

EPA's reference to the oil-bearing residuals' not being
"contaminated prior to being recycled" also appears to have
been inadvertent.  EPA is well aware that the oil-bearing
residuals, such as wastewater sludges, contain some
contaminants.  In fact, it is for this reason that the
current recovered oil exclusion includes the condition that
the recovered oil be inserted into the refining process at
or before a point where some contaminants are removed.  40
CFR 261.4(a)(12).  It may be that EPA meant to say that
the oil-bearing materials would be "raw material-like and
not discarded prior to being recycled," which clearly would
be more accurate.  In any event, EPA should confirm that its
statement that the excluded materials are not contaminated
was incorrect.  (API, 00009, pg 26)

Response: See response to Comment 4 (above).

Comment 8:  On page 4-1 of the Listing Support Analyses, it
says that:

  "1.  The scope of the proposed exemption is limited to
  the petroleum refining, such that the oil-bearing
  materials to be considered would be raw material-like and
  not contaminated prior to being recycled."

We believe that this statement was unintentional since the
wording of the proposed exclusion clearly includes materials
generated by facilities in a number of SIC codes
representing operations throughout the petroleum industry
(60 FR 57796).  The preamble language indicates (60 FR
57753) that the exclusion covers "...oil-bearing secondary
materials that are generated on-site at refineries,
transported intracompany from off-site, or received from any
off-site facilities (intercompany transfers) in the
following SIC codes:..."  The current recovered oil rule in
40 CFR 261.4(a)(12) includes non-refinery materials, and the
preamble language to this rule (59 FR 38536, July 28, 1994)
is clear that non-refinery materials are included in the
scope of the exclusion.  The Agency should retain the
proposed wording for the new oil-bearing residuals exclusion
and again clarify that it extends to oil-bearing residuals
produced throughout the petroleum industry which are
inserted into the refining process.  This will eliminate
continuing and unnecessary uncertainty on the scope of the
exclusion.

We also believe that the reference in the statement to oil-
bearing residuals not being "contaminated" prior to being
recycled is inadvertent.  Oil-bearing residuals, such as
refinery wastewater sludges (K/F wastes), do contain
contaminants.  As EPA has concluded in the Listing Support
Analyses, however, product coke composition is not
substantively affected, even under a worst-case calculation,
by the presence of these contaminants in residuals being
inserted into the refining process.  (BP, 00011)

Response: See response to Comment 4 (above).

Comment 9: The commenter disagrees with EPA's proposal to
allow reinsertion of "any" oily waste material into any part
of the refining process, likening the proposal to a "Bevill
II" exemption for refineries.  The commenter points out that
allowing insertion of wastes into the coker,  without regard
to oil content, will assure that the coker becomes a
limitless "black hole" for refinery waste.  The commenter
contends that the exclusion will: (1) establish a regulatory
override to the Sham Recycling Criteria where coking is
involved; (2) foster the production of more of the world's
dirtiest fuel by allowing yet additional toxic metals, PNAs,
and other toxics to be deposited onto the coke without
treatment; and (3) deal a deadly blow to true recycling
technologies such as thermal desorption, flexi-coking, and
gasification, which produce clean products for direct reuse
or reuse within the refinery, rather than create a product
with not real market value.  (SEA, L0006, L0010)

Response:  The Agency is finalizing an exclusion from the
definition of solid waste for oil-bearing secondary
materials generated by petroleum refineries and returned to
the refinery process with several conditions:

  The secondary materials may not be stored or placed on
  the land prior to being re-inserted into the refinery
  process.

  The secondary materials may not be accumulated
  speculatively.

  Use of the secondary materials in the refinery process
  must not result in the coke product exhibiting one or
  more of the hazardous waste characteristics.

The Agency clarifies that the exclusion, as promulgated, is
limited to oil-bearing secondary materials generated within
the petroleum refining sector (i.e., SIC 2911) and inserted
into the petroleum refining process.

The Agency notes that the main purpose of the petroleum
coking unit is to recover hydrocarbons from the oil
contained in the feedstocks for further refining. 
Similarly, the main purpose of using the secondary materials
in the coke quenching process is the energy-efficient
recovery of hydrocarbon from the residual oil in the oil-
bearing secondary materials.  The Agency also notes that
coke product produced using hazardous secondary materials in
the quenching process is basically similar to coke produced
without using secondary materials in the quenching process. 
Further, EPA notes that the making of anode-grade coke, the
most high-valued coke with the most stringent product
specifications, is likewise able to meet the product
specifications while using these secondary materials in the
quenching process.  

In considering whether the fact that the coke product
produced using secondary materials in the quenching process
continues to meet the product specifications (and, in fact,
demonstrates little change in the levels of contaminants
compared with coke produced without hazardous secondary
materials) is simply a result of dilution, the Agency
acknowledges that such dilution does occur.  However, there
are several other considerations.  For example, the primary
product of the petroleum coking process is the hydrocarbon
fraction recovered for use as feedstock in the production of
high-value fuel products, with the coke product being a co-
product of the coking process.  The Agency is convinced that
such recovery occurs when oil-bearing secondary materials
are used in the quenching process.  Given that the recovered
hydrocarbon is the primary product of using the secondary
materials in the quenching process, the simple fact that the
coke product (i.e., the co-product) continues to meet the
applicable product specifications and shows no appreciable
increase in risk carries more weight in the Agency's
evaluation.  In other words, demonstrating hydrocarbon
recovery is the key test in determining whether the
hazardous secondary materials actually serve a useful role
in the overall coking operation, rather than demonstrating a
net contribution to the coke (as opposed to no degradation
of the coke).  Acknowledging that there is a potential for
some degradation of the coke product, depending on the
constituent make-up of the particular secondary materials
used in the quenching process, the Agency believes that
economic forces, driven by product specifications and
competition for markets, will serve to ensure that the
quenching process is not simply a means of indiscriminately
disposing of hazardous wastes.  However, in cases where
there is sufficient degradation of the product (or co-
product) such that it no longer meets product specifications
or otherwise becomes unmarketable, the Agency would question
the legitimacy of using the secondary materials in the
quenching process.  Similarly, if there were no hydrocarbon
recovery stemming from the use of the hazardous secondary
materials in the quenching process, the Agency would
question the legitimacy of the activity.  (The Agency knows
of no such cases.)

The Agency considered, as suggested in several comments,
setting a minimum oil content to define the scope of "oil-
bearing secondary materials" that are excluded when used in
the quenching process, or to require a demonstration of
hydrocarbons actually being recovered from the excluded
secondary materials that is comparable to oil recovery in
the conventional coking process.   The Agency rejected
limiting the exclusion based on a set minimum oil content or
a recovery efficiency requirement for several reasons.  

As the petroleum industry stated in their comments, the
quenching process represents the last possible process in
which to recover hydrocarbon from the original crude oil
feedstock.  The refinery processes and operating procedures
are designed to separate and process into products as much
hydrocarbon as possible from the crude oil feedstock, in
other words, to prevent as much oil from making its way into
these secondary materials as possible.  The oil that does
make its way into these secondary materials is generally
considered unavoidable and inevitable, or in some cases, too
much oil in these secondary materials is evidence of a
problem with some aspect of the overall refining process
(which goes towards explaining the wide range of oil
contents in these materials).  Thus, it would be counter to
the overall efficiency of the petroleum refining process to
require a minimum oil content in the secondary materials. 
Conversely, the Agency believes it is fundamental to this
exclusion that there actually be oil recovered for further
refining when these oil-bearing hazardous secondary
materials are used in the quenching process.

Also, the Agency believes that, in this case, a minimum oil
content condition would do little to ensure that only those
secondary materials from which oil can actually be recovered
would be excluded, or in other words, the Agency does not
believe that setting a minimum oil content would ensure that
secondary materials are legitimately being used in the
quenching process.  Since most of the secondary materials in
question result from wastewater treatment, a minimum oil
content requirement would only serve to encourage a refinery
to operate the refinery process less efficiency to ensure
that there these secondary materials contain the minimum oil
content and thus avail themselves of an exclusion.  

With regard to the commenter's concern regarding the
potential for metals contained in hazardous secondary
materials to be "toxics-along-for-the-ride," the hazardous
metals found in the hazardous secondary materials generally
can be traced back to the metals found in the original crude
oil feedstock and so do not represent contaminants
introduced through means other than the continued processing
of the raw material feedstocks.  EPA's traditional concern
regarding unnecessary hazardous constituents being processed
and ending up in a product is mitigated in this case because
the Agency views this activity as the continual processing
of a raw material that contains the hazardous constituents,
with concentrations of constituents found in the feedstock
streams varying dependent on the point in the overall
production process.  In the context of a multi-step
production process, there is much less of an element of
discard of the hazardous constituents inherent in the
original raw material than there would be had these
secondary materials been generated by another industry or
had the hazardous constituents not been inherent to the
original raw material. 

Comment 10: The commenter questions EPA's reliance on
industry assurances regarding the protectiveness of the
coking process as a recycling operation.  The commenter
contends that the extent of the Agency's health and
environmental assessment consists of the following
statement:

  Coke is subject to .... certain limited industry
  product specifications ...Coke is also subject to
  product standards established by the ASTM for
  volatile matters and ash content.  Taken together,
  these controls help to insure the coke product does
  not contain unsafe levels of toxic contaminants. (60
  FR 57755, Emphasis added)

The commenter notes that ASTM is a test methods group, not a
health standard setting agency.  Further, combustibility
criteria do not substitute for a health assessment.  The
commenter cites petroleum industry personnel who state that
contaminants are deposited on coke sludge and sent out with
the product.  

The Agency must consider the affects of the proposed
recycling exemption, including movement of pollutants from
one medium to another and the making toxics in wastes more
available to the environment.  The commenter contends that
the only environmental justification for exempting hazardous
waste recycling from RCRA's preventative management
standards occurs when the recycling practice itself is
inherently protective (i.e., conducted in an enclosed system
or without releases) and when toxics are not merely shifted
from one medium to the next (i.e., from land, back to the
air.) (SEA, L0010)

Response: Due to the fact that 1) the recovery efficiency of
hydrocarbons from oil contained in the secondary materials
used in the quenching process is comparable to the recovery
efficiency of the conventional coking process, 2) the use of
oil-bearing hazardous secondary materials (including RCRA
listed hazardous wastes) in the quenching process is
consistent with the overall goal of the petroleum refining
industry, namely to maximize the  recovery of hydrocarbon
values from the original crude oil feedstocks, and 3) the
coke product continues to meet product specifications and
indicates no increase in risk, the Agency concludes that the
use of oil-bearing hazardous secondary materials generated
by the refinery can legitimately be used in the coke
quenching process, dependent upon whether there is both
hydrocarbon recovery and no adverse effect on the coke
product.

Having determined that certain oil-bearing hazardous
secondary materials can be legitimately used in the
quenching process, the question then becomes whether this
activity constitutes on-going production and hence is
excludable, or legitimate hazardous waste recycling --
potentially subject to regulation as a form of hazardous
waste treatment.  There are several aspects that would point
to either outcome.  Industry has documented that there is
recovery of hydrocarbon values from the oil-bearing
secondary materials, short- and middle-chain fractions are
condensed and sent to refining processes to produce high-
value fuel products (consistent with the overall coking
operation).  In addition, there is some beneficial
contribution to the coke product in the form of carbon and
higher energy values (even though this may not be reflected
by an actual increase in market value), and the Agency also
notes that the coke product continues to meet the market-
driven specifications for the product, even for high-value
anode grade coke.  And, as with other side streams generated
by one process and used as feedstocks to other production
processes, this activity constitutes a link in the multi-
step chain of processing steps designed to recover as much
of the hydrocarbon value from the original crude oil
feedstock as possible.  Thus, there are arguably aspects of
this activity that lead one to conclude that the oil-bearing
hazardous secondary materials used in the quenching process
can be considered, for regulatory purposes, as part of an
on-going production process and hence classified as an
activity not subject to RCRA jurisdiction.

The Agency is assured that use of hazardous secondary
materials in the quenching process is a legitimate activity
warranting an exclusion from the definition of solid waste. 
The primary purpose of the activity is the recovery of the
remaining hydrocarbon values in the oil-bearing secondary
materials (with the addition of carbon and energy value to
the co-product coke), using the existing heat energy
contained in the coke product after the conventional coking
process. 

In general, the hazardous metals found in the hazardous
secondary materials can be traced back to the metals found
in the original crude oil feedstock and so do not represent
contaminants introduced through means other than the
continued processing of the raw material feedstocks.  EPA's
traditional concern regarding unnecessary hazardous
constituents being processed and ending up in a product is
mitigated in this case because the Agency views this
activity as the continual processing of a raw material that
contains the hazardous constituents, with concentrations of
constituents found in the feedstock streams varying
dependent on the point in the overall production process. 
In the context of a multi-step production process, there is
much less of an element of discard of the hazardous
constituents inherent in the original raw material than
there would be had these secondary materials been generated
by another industry or had the hazardous constituents not
been inherent to the original raw material. 

Finally, EPA believes that the recovery of hydrocarbon from
the oil-bearing secondary materials in the quenching process
is consistent with the overall petroleum refining process,
and the coking operation in particular, i.e., the recovery
of hydrocarbons for the production of high-value fuel
products.  Therefore, the Agency is providing a conditional
exclusion for oil-bearing hazardous secondary materials that
are inserted into the coker, based on the assumption that,
whether inserted along with normal feedstock (i.e., resids)
or used in the quenching process, hydrocarbons are recovered
for further refining and there is no degradation of the coke
product.


II.B.1.     EPA's jurisdiction over coke fines 

Comment 1:  Off-Specification Coke And Fines That Are Sold
As Product Are Not Wastes.
Mobil concurs in EPA's conclusion that off-specification
coke and fines that are sold as product are not wastes.  The
NODA offers EPA's explanation as to why off-specification
coke and fines that are sold as product are beyond EPA's
jurisdiction under RCRA as well as why EPA found it
unnecessary to assess risks from land-based storage of such
products.  62 Fed. Reg. 16750 (April 8, 1997).  Off-
specification products that are sold for their intended
purpose are products and not wastes. See 40 CFR
261.2(c)(2)(ii).

However, EPA states that "In the case of waste-derived
fines, so long as the fines are legitimate coke product,
they are exempt from RCRA regulation unless the material
exhibits a characteristic, 40 CFR 261.6(a)(3)(v)."  62 Fed.
Reg. 16750 (April 8, 1997).  If "waste-derived" fines is
meant to refer to coke fines from coking where hydrocarbon-
bearing residuals are reprocessed, Mobil maintains that
neither the hydrocarbon-bearing residuals nor the coke fines
are solid wastes under existing case law.  Moreover, upon
finalization of the proposed expanded recovered oil
exclusion,  EPA's regulations will confirm that coke and
fines derived from reprocessing hydrocarbon-bearing
residuals are not wastes.  (Mobil, 00002, pg 5)

Response: EPA maintains that coke fines managed and sold
with coke as product are not solid wastes, as long as the
coke product (and fines) do not exhibit any of the
characteristics of hazardous waste.

Comment 2:  EPA Has Correctly Addressed the Risks Associated
with the Sale of Off-specification Coke and Fines.

Because off-specification coke and fines are sold as a
product and are not wastes, they are beyond EPA's RCRA
jurisdiction.  Therefore, NPRA agrees with EPA's proposal
not to list the residual. (NPRA, 00004, pg 4)

Response: The Agency thanks the commenter for stating its
support of the Agency's proposal.

Comment 3:  Off-Specification Coke and Fines that Are Sold
as Product Are Not Wastes

In the NODA, EPA explains further why off-specification coke
and fines that are sold as product are beyond EPA's
jurisdiction under RCRA (and therefore, why EPA found it
unnecessary to assess risks from land-based storage of such
products).  62 Fed. Reg. 16750 (April 8, 1997).  First, EPA
states correctly that off-specification coke and fines that
are produced without using wastes are not wastes.  This is
simply an application of the self-evident principle,
codified in the existing regulations, that off-specification
products that are sold for their intended purpose are
products and not wastes.  See 40 CFR 261.2(c)(2)(ii).

Second, EPA states that "In the case of waste-derived fines,
so long as the fines are legitimate coke product, they are
exempt from RCRA regulation unless the material exhibits a
characteristic, 40 CFR 261.6(a)(3)(v)."  62 Fed. Reg. 16750
(April 8, 1997).  This statement is also true, as far as it
goes.  However, to the extent "waste-derived" fines is meant
to refer to coke fines from coking where oil-bearing
residuals are used in the process, API maintains that
neither the oil-bearing residuals nor the coke fines are
even "solid waste" under existing case law.  Moreover, upon
finalization of the revised recovered oil exclusion, the
non-waste status of the residual-derived coke and fines will
be codified in EPA's regulations.  For all of these reasons,
EPA is fully justified in its proposal not to list off-
specification coke and fines as hazardous waste.  (API,
00009, pg 25)

Response: EPA maintains that coke fines managed and sold
with coke as product are not solid wastes, as long as the
coke product (and fines) do not exhibit any of the
characteristics of hazardous waste.

Comment 4:  EPA has Correctly Characterized the Handling and
Risks Associated with Off-specification Coke and Fines.

As EPA states, essentially all of this material is managed
as a product and not wastes and therefore any listing
decision is unjustified and beyond EPA's jurisdiction. (Sun,
00008)

Response: EPA maintains that coke fines managed and sold
with coke as product are not solid wastes, as long as the
coke product (and fines) do not exhibit any of the
characteristics of hazardous waste.

Comment 5:  In the case of off-spec products and fines, the
NODA materials contain two relevant categories of
information.  For the first time, EPA offers its rationale
for why off-spec products and fines are co-products when
placed on petroleum coke piles for storage and subsequent
reuse, and therefore outside of the jurisdiction of this
listing determination when managed in this manner.  In
brief, EPA bases the co-product determination on the
physical and chemical similarity to petroleum coke.  In
addition, for the first time, EPA evaluated the non-
groundwater risks posed by the management of off-spec
products and fines in LTUs, both as an individual waste and
in the co-disposal scenario discussed above.

Insofar as EPA's co-product determination is based upon the
similarity of off-spec products and fines to petroleum coke,
EDF questions whether EPA can demonstrate either material
has current economic value independent of avoided disposal
costs.  In response to an EDF FOIA request submitted earlier
this year, EPA provided a memorandum from Dave Gustafson,
DPRA to Max Diaz, EPA dated March 18, 1997, attached as
Exhibit 1 to these comments.  In that memorandum, DPRA
quotes petroleum coke price ranges from $0-$80/ton, the
highest price presumably for rarely produced anode
production grade coke.  In the Rocky Mountain region,
generators pay to dispose of the coke, therefore it can
hardly be considered a product in that region.  Elsewhere, a
typical export price is merely $7.50 per short ton, while
use within a company may be valued at $12.50 per short ton. 
Significantly, most petroleum coke produced domestically is
now exported, because the coke is too dirty to burn under
U.S. air standards.  

DPRA's findings that petroleum coke is of little or no
economic value are confirmed by other sources.  The Oil and
Gas Journal published a recent article in which the author
states:

     Conventional heavy-resid conversion processes for
     high-metals stocks, such as coking processes, are no
     longer the final solution they once were.  High-sulfur,

     high-metals coke can no longer be directly
     fired in boilers in many parts of the world.  Firing
     in fluid-bed combustors often is not permitted
     because of limited sulfur recovery and disposal
     problems with the heavy metals in the spent bed.

     The market for high-sulfur, high-metals coke has
     constricted to the point where some U.S. refiners
     are faced with negative netbacks on their coke
     production.

In response to the same FOIA request, EPA also provided
information on the economic value of off-spec products and
fines.  According to EPA, survey respondents reported
receiving payment for 24 of the residual streams sent
off-site.  
Since 38 streams were reported as transported offsite
with petroleum coke in 1992, 14 of the 38 survey respondents
did not indicate they received any payment for the offsite
transfer.  The payments received by the remaining
respondents generally fell within $10-20 per metric ton. 
Since the data is from 1992 when DPRA found petroleum coke
had a similar value, it is reasonable to assume these small
payments have declined since then in the same manner as the
value of coke.  Therefore, EPA's economic data demonstrate
both petroleum coke and off-spec products and fines have
very little or no current economic value independent of
avoided disposal costs.  Accordingly, off-spec products and
fines are not properly characterized as co-products.  

In addition, assuming arguendo the off-spec products and
fines are co-products when stored with petroleum coke, EPA
must still render a listing determination for this residual
when stored on piles.  Pursuant to 40 CFR 261.33, EPA lists
a variety of products, including off-specification products,
when discarded or intended to be discarded.  Therefore, if
the off-spec products and fines are not actually reused when
placed on the pile, because the residual blows off the pile
or migrates via runoff, such off-spec products and fines
would be regulated as hazardous wastes.  Indeed, by listing
off-spec products and fines as hazardous under 40 CFR
261.33, regulatory officials would be empowered to respond
to such discard by placing appropriate controls on the pile
to prevent it from becoming an unauthorized disposal unit.  

The importance of rendering a 40 CFR 261.33 listing
determination in this context is dramatized by the limited
risk assessment EPA conducted as part of the 1995 proposal. 
The cancer risks associated with landfill air releases
(where no daily cover was assumed as would be the case for
the storage pile) for off-spec thermal products and fines
exceeded 1 X 10-3 for home gardeners, subsistence farmers,
and subsistence fishers; and a high cancer risk to
subsistence fishers from mercury exposure was also
predicted.  Significantly, EPA regarded these risk
estimates as "comparable to the potential risks associated
with onsite storage prior to final management" due in large
part to the small particle size associated with off-spec
products and fines.

The NODA LTU risk modeling for off-spec products and fines
is not a meaningful surrogate for evaluating the risks posed
by pile storage, and therefore does not contradict the 1995
findings.  In the NODA LTU modeling, the annual onsite LTU
modeled volumes were one ton (median) and 34 tons
(high-end).  
For offsite LTUs, both the median and high-end volume
values were 21 tons.  In the onsite co-disposal LTU
modeling, the off-spec products and fines volume was set at
34 tons, while in the offsite scenario, the volume was 21.2
tons.  In contrast, the annual median and high-end volumes
for pile storage are 4,447 and 17,000 tons respectively. 
In short, the NODA onsite LTU modeling considered median
volumes approximately 0.022%, and high-end volumes
approximately 0.20% of the relevant pile volume.

Pursuant to the Consent Decree in EDF v. Browner, EPA is
required to issue a listing determination for off-spec
products and fines.  Given that an estimated 169,986 MT of
the total 194,262 MT (87%) off-spec products and fines
generated in 1992 was placed in piles and subject to
discard, and that such discard presents a substantial risk
to human health and the environment based upon the
assessments conducted to date, the required listing
determination must include a decision as to whether off-spec
products and fines warrants listing pursuant to 40 CFR
261.33.  EPA must either list the residual as hazardous
based upon its 1995 risk findings, or perform an appropriate
risk assessment evaluating the present and potential risks
to human health and the environment posed by the storage of
large quantities of off-spec products and fines on piles. 
(EDF, 00006, L0009)

Response: The Agency is not listing coke fines as a
hazardous waste because coke fines are the same as coke and
are, for the most part, managed in the same manner as
product coke.  The Agency's risk analysis for coke that is
disposed in landfills and land treatment units resulted in
low risk estimates.  The issues raised on the risks posed by
this waste are discussed in the response to Comment 4 in
Section I.A.5 of this document.

Furthermore, EPA made follow up calls to the 6 facilities
which have cokers out of the 20 refineries in which site
visits were conducted and found most of the facilities
employed some kind of dust suppression to the coke product
piles.  The phone log is below.

     Phone Log - Documentation of Release Controls for Coke
                         Product Piles


Facility Number: 093
Process Unit Type: Fluid Coking - Coke pile is owned by the
neighboring co-generation plant but leases the land from the
refinery
Dust Suppression: As part of the lease, the cogeneration
plant
must use a dust suppressant and crusting agent on the pile
to
control dusting.
Run-off Controls: The area is sloped and stormwater drains
into
the stormwater collection ditch and which is sent to the
wastewater treatment plant.  The product pile is walled in
with wooden walls.

Facility Number: 155
Process Unit Type: Delayed Coker- processes F&K wastes
Dust Suppression: Coke is wet when placed on the piles from
the
drilling water.  Dust suppression system continuously sprays
the
piles with water.  Trucks carrying product covered and are
sprayed before leaving the unit to remove coke from tires.
Run-off Controls: The coking unit and product pile is
enclosed
with sheet metal walls.  Unit area is sloped so drilling
water
and stormwater collects in the cutting water system where
the
water is reused for cutting and the fines are placed back on
the
product piles.

Facility Number: 171
Process Unit Type: Delayed coker with calciner
Dust Suppression: The "green coke" is loaded from the unit
onto a covered conveyor with a gantry crane and bucket and
taken
to the "coke barns" (an enclosed storage warehouse).  From
the
barns, it travels to the calciner on another covered
conveyor. 
The calcined coke storage and loading areas all have dust
suppression equipment.
Run-off Controls: Drilling water may drain from the conveyor
or
loading area and it drains back into the coker drilling
water
maze.  Drilling water drainage ("black water") from the
barns
collects in a sump and is routed back to the coker maze. The
maze
water is recycled to the "jet tank" for drilling. 

Facility Number: 063
Process Unit Type: Delayed coker making anode-grade coke
Dust Suppression: Coke is wet when placed on the piles from
the
drilling water.  Dust suppression system continuously sprays
the
piles with water.  From the piles it travels via covered
conveyor
to the loading barge.
Run-off Controls: The product pile is enclosed with walls. 
Unit
area is sloped so drilling water and stormwater collects and
it is sent to a clarifier where the water is reused for
cutting
and the fines are placed back on the product piles.

Facility Number: 076
Process Unit Type: Delayed coker sent to an offsite calciner
Dust Suppression: No sprinkler system; Louisiana is a rainy
area and helps keep dust down.  Looked into a polymer dust
suppression but didn't go with it due to cost and decrease
in coke purity.  Coke pile can't be sprayed with water
because
the coke must have a minimum moisture content for the
calciner. 
Use a truck washer to minimize fines carried off by trucks.
Run-off Controls: The coke unit and product piles are
enclosed by
concrete walls.  Drilling water and stormwater drain into
the
"fines pit" (a sloped drainage area) were the water is
reused for
drilling and the fines are recovered and place on the
product
pile.

Facility Number: 170
Process Unit Type: Delayed coker making anode-grade coke
Dust Suppression: Majority of the coke is stored in storage
buildings.  Water sprinkler systems control coke that is
stored outside.  Truck are washed and tarped before leaving
the
process area.
Run-off Controls: Runoff water from drilling and dust
suppression
is drained into "sediment traps."  Water is then recycled
for
cutting.  A small portion of the water may go to WWT.  Fines
collected in the "traps" are placed back on the product pile
and
sold.



II.b.2.   EPA Invites Comment on the Potential Impact of
          Recycling Hazardous Waste to the Coker.

II.B.2.a. Favors Exclusion

Comment 1:  The NODA Provides Additional Strong Support For
the a Prompt and Early Finalization of the Long Overdue
Exclusion For Hydrocarbon-Bearing Residuals Inserted In The
Coking Process
In its November 20, 1995 proposal, EPA proposed to expand
the recovered oil rule exclusion in 40 CFR 261.4(a)(12) to
exclude from the definition of solid waste hydrocarbon-
bearing residuals produced in the petroleum industry
(including the petrochemical industry) and inserted into the
petroleum refining process, including the coking process. 
Based on existing case law and the record already developed
in this rulemaking, Mobil believes EPA had a sound basis to
finalize the proposed exclusion long ago.  The data and
analysis presented in the NODA provide yet more support for
this long overdue exclusion, and Mobil strongly urges EPA to
promulgate the exclusion in final form as soon as possible.

The NODA provides a very persuasive response to the concerns
of some who have commented that the proposed exclusion could
allow some toxic constituents to be passed through to the
product coke at elevated levels, sometimes referred to as
"toxics along for the ride."  Data provided by Mobil and
others demonstrate that the use of hydrocarbon-bearing
residuals in the coking process does not materially impact
toxic metals levels in product coke.  USEPA, Petroleum
Refining Process Waste Listing Determination: Supplemental
Background Document: Listing Support Analyses ("Listing
Support Analyses") 4 (1997).

EPA's effort in the NODA to address the theoretical
possibility that in the future there could be a dramatic
increase in the reprocessing of residuals on the coker for
the recovery of hydrocarbons and the production of valuable
transportation and other fuels, including coke production,
is very informative.  EPA calculated the predicted impact on
coke product quality if all refinery F/K wastes produced
during 1992 were reprocessed on cokers to produce the total
quantity of coke produced in 1992.  Even under this "worst
case" scenario, EPA calculates such reprocessing  would have
minimal impact on metals levels in coke.  Id.

Any concerns about "toxics along for the ride" should be
finally and completely resolved based on 1)the data
presented or derived by EPA analysis, 2)the operational
imperative to avoid using incompatible materials in the
economically critical coking process, 3)the existence of
coke product specifications, and 4)the requirement that
the coke product not exhibit a hazardous waste
characteristic.  EPA should finalize the proposed exclusion
as soon as possible and without further delay.  (Mobil,
00002, pg 4)

Response: In today's final rulemaking, the Agency is
promulgating an exclusion from the definition of solid waste
for oil-bearing secondary materials generated by the
petroleum refining sector (i.e., SIC 2911) and returned to
the refinery process, with the following conditions:

     The secondary materials may not be stored or placed on
     the land prior to being re-inserted into the refinery
     process (including prior to insertion into the coker,
     either as part of the conventional coking process or
     prior to insertion with the quench).

     The secondary materials may not be accumulated
     speculatively.

     Use of the secondary materials in the refinery process
     must not result in the coke product exhibiting one or
     more of the hazardous waste characteristics.

The Agency is convinced, after a review of data provided by
commenters, that the hazardous metals found in the hazardous
secondary materials can be traced back to the metals found
in the original crude oil feedstock and so do not represent
contaminants introduced through means other than the
continued processing of the raw material feedstocks.  EPA's
traditional concern regarding unnecessary hazardous
constituents being processed and ending up in a product is
thus mitigated in this case because the Agency views coking
as a continuation of the refining process to recover
hydrocarbons from crude oil.  Hazardous constituents (with
the exception of lead and chromium) originate with the
initial raw material, i.e., the crude oil.

Concentrations of hazardous constituents found in the
feedstock streams vary depending on the point in the overall
production process.  In the context of this multi-step
production process, there is thus much less of an element of
discard of the hazardous constituents because they come from
the raw material.  The situation would be different had
these secondary materials been generated by another industry
or had the hazardous constituents not been inherent to the
original raw material.  (In addition, the preamble notes
that lead and chromium are being phased out of refining
operations and record information documents the decline of
these constituents in petroleum industry secondary materials
and petroleum coke.)

EPA notes that the Agency is limiting the exclusion to oil-
bearing secondary materials generated by the petroleum
refining sector only (i.e., SIC 2911). The Agency is
limiting the scope of the exclusion in this way to ensure
that secondary materials containing hazardous constituents
not present in crude oil feedstocks and/or hazardous
constituents that cannot contribute to the production
process are not discarded in the coking process or
incorporated into the coke product without benefit to the
product.  In addition, the scope of the exclusion is limited
to those secondary materials generated within the petroleum
refining industry sector that result in a coke product that
does not exhibit a characteristic of hazardous waste.  The
Agency has no information on which to base a finding that
the use of oil-bearing hazardous secondary materials
originating in a non-refinery sector of the petroleum
industry in the coke quenching process would be anything
other than the management of wastes (e.g., hazardous waste
recycling) from that non-refinery sector.

Comment 2:  The NODA Provides Additional Support for the
Prompt Promulgation of the Long Overdue Exclusion for Oil-
Bearing Residuals Employed in the Coking Process

In the original proposal, EPA proposed to expand the
recovered oil rule exclusion in 40 CFR 261.4(a)(12) so as
to exclude from the definition of solid waste any oil-
bearing residuals produced in the petroleum industry
(including the petrochemical industry) and inserted into the
petroleum refining process, including the coking process. 
API believes that based on existing case law and the record
already developed in this rulemaking, EPA had a sound basis
to finalize the proposed exclusion long ago.  The data
presented in the NODA provides yet more support for this
long overdue exclusion, and API urges EPA to promulgate the
exclusion in final form as soon as possible.

In particular, the NODA responds very persuasively to the
concerns of some commenters that the proposed exclusion
would permit toxic constituents to be passed through to the
coke product at elevated levels, i.e., that it would permit
"toxics along for the ride."  The data presented from
industry and updated literature sources demonstrate that use
of oil-bearing residuals in the coking process does not
measurably affect the levels of toxic metals in product
coke.  USEPA, Petroleum Refining Process Waste Listing
Determination:  Supplemental Background Document:  Listing
Support Analyses ("Listing Support Analyses") 4 (1997). 

Moreover, to address the theoretical possibility that in the
future there would be a dramatic increase in the use of
residuals in coke production, EPA calculated the predicted
effects on coke product if 100 percent of the volume of
refinery F and K sludges produced during 1992 were used in
production of the total quantity of coke produced in 1992. 
Even under such a theoretical "worst case" scenario, EPA
projects minimal impact on levels of metals in coke.  Id.

The data presented, together with the operational imperative
to avoid using incompatible materials in the coking process,
the existence of product specifications for coke, and the
proposed condition that the coke product not exhibit a
hazardous waste characteristic, should lay to rest once and
for all any concerns about "toxics along for the ride."  EPA
should promulgate the proposed exclusion without further
delay. (API, 00009, pg 24)

Response:   The Agency is finalizing an exclusion from the
definition of solid waste for oil-bearing secondary
materials generated by petroleum refineries and returned to
the refinery process with several conditions:

     The secondary materials may not be stored or placed on
     the land prior to being re-inserted into the refinery
     process.

     The secondary materials may not be accumulated
     speculatively.

     Use of the secondary materials in the refinery process
     must not result in the coke product exhibiting one or
     more of the hazardous waste characteristics.

Further discussion is found in the previous response.

EPA also clarifies that the Agency is not  including within
the scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911).  The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector. 
Oil-bearing secondary materials originating from the non-
refinery sector have the potential to include toxic
constituents that are not present in crude oil feedstocks
and that may not contribute to the refinery process.  It is
the Agency's intent not to exclude from the definition of
solid waste those secondary materials with significant
concentrations of hazardous constituents which are only
being discarded by destruction or by incorporation into the
coke or other refining product without benefit to the
product.  See U.S. v. Marine Shale Processors, 81 F. 3d at
1365-66 (5th Cir. 1996).  Further, information is thus
needed so that EPA could evaluate this consideration as well
as other factors bearing on whether such processes could be
viewed as a type of on-going industrial process without
significant elements of discard.

The Agency also is requiring that the materials excluded
under this provision of today's rule be returned directly to
a refinery for insertion.  While this is not an issue if
materials are recycled on site, EPA has concerns about
situations where these materials are generated at one
refinery for insertion into another, but are instead managed
at intermediate non-refinery facilities prior to insertion
into a petroleum refinery process.  This is consistent with
the argument that the exclusion is provided on the basis
that secondary materials are being used within the realm of
on-going production in the petroleum refining sector.  EPA
is indicating in the regulatory text of the exclusion that
oil-bearing materials may be inserted into the same refinery
where they are generated, or sent directly to another
refinery, and still be excluded.

Comment 3:  In response to concerns raised by some
commenters on the original proposal, EPA has reconfirmed its
determination that the use of oil-bearing residuals in the
coking process does not measurably affect the levels of
toxic materials in product coke (Petroleum Refining Process
Waste Listing Determination, Supplemental Background
Document, Listing Support Analyses, Section 4, March 1997). 
This is consistent with the argument that the exclusion is
provided on the basis that the secondary materials are being
used within the realm of on-going production in the
petroleum refining sector.  BP Oil submitted comments dated
March 19, 1996 on the proposed rule (Docket No.
F-95-PRLP-FFFFF) 
which contained data demonstrating no substantive
difference in product coke quality when secondary materials
are inserted into the refining process (coker) compared to
when they are not.  A trial was conducted at one of our
refineries during which an oil/water/solids slurry of
secondary materials (K/F wastes) was injected into the coke
to evaluate a variety of operating conditions and secondary
material loadings, including loadings that were considerably
higher than those anticipated during normal operations. 
Analytical results obtained during the trial included that
slurry injection had no substantive impact on iron, nickel,
vanadium, sulfur or volatile combustible matter (VCM) levels
in the coke product.  TCLP (Toxicity Characteristic) levels
in the product coke were well below regulatory levels and
indicated no significant difference from levels in product
coke produced with no slurry injection.

     The exclusion should extend to oil-bearing residuals
     produced throughout the petroleum industry which are
     inserted into the refining process.  (BP, 00011)

Response: EPA thanks the commenter for submitting data to
the Agency to assist in analyzing the potential consequences
of the proposed exclusion.  The Agency is finalizing an
exclusion from the definition of solid waste for oil-bearing
secondary materials generated by petroleum refineries and
returned to the refinery process with several conditions:

     The secondary materials may not be stored or placed on
     the land prior to being re-inserted into the refinery
     process.

     The secondary materials may not be accumulated
     speculatively.

     Use of the secondary materials in the refinery process
     must not result in the coke product exhibiting one or
     more of the hazardous waste characteristics.

The Agency is convinced, after a review of data provided by
commenters, that the hazardous metals found in the hazardous
secondary materials can be traced back to the metals found
in the original crude oil feedstock and so do not represent
contaminants introduced through means other than the
continued processing of the raw material feedstocks.  As
shown in the preamble and elsewhere in the record, lead and
chromium, which are non-indigenous constituents (i.e.
hazardous constituents not originating primarily in the
initial crude oil) are being phased out of refining and so
would not significantly contaminate coke products.)  EPA's
traditional concern regarding unnecessary hazardous
constituents being processed and ending up in a product is
mitigated in this case because the Agency views coking as
the continual processing of a raw material that contains the
hazardous constituents, with concentrations of constituents
found in the feedstock streams varying dependent on the
point in the overall production process.  In the context of
a multi-step production process, there is much less of an
element of discard of the hazardous constituents inherent in
the original raw material than there would be had these
secondary materials been generated by another industry or
had the hazardous constituents not been inherent to the
original raw material.

EPA also clarifies that the Agency is not  including within
the scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911).  The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector. 
Oil-bearing secondary materials originating from the non-
refinery sector have the potential to include toxic
constituents that are not present in crude oil feedstocks
and that may not contribute to the refinery process.  It is
the Agency's intent not to exclude from the definition of
solid waste those secondary materials with significant
concentrations of hazardous constituents which are only
being discarded by destruction or by incorporation into the
coke or other refining product without benefit to the
product.  See U.S. v. Marine Shale Processors, 81 F. 3d at
1365-66 (5th Cir. 1996).  Further, information is thus
needed so that EPA could evaluate this consideration as well
as other factors bearing on whether such processes could be
viewed as a type of on-going industrial process without
significant elements of discard.

Comment 4:  Sun Continues to Support EPA's addition for
Hazardous Oil-Bearing Residuals Returned to the Refining
Processes to the Exclusions under the Definition of Solid
Waste and Requests an Immediate Promulgation of this Rule.

The proposed change to 40 CFR 261.4 to add a new section
(12) will be beneficial to Sun and to the environment.  The
petroleum refining industry has a long history of refining
as much oil as possible, including recovered oils.  A
refinery is the best place for oil-bearing materials to be
managed.  The recommended change will encourage refineries
to investigate and develop even more methods to manage these
oily residuals within the refinery without having to use
off-site waste management facilities.  (Sun, 00008)

Response: See response to Comment 3 (above).
II.B.2.b. Disagrees with Exclusion

Comment 1: It should also be noted that toxics along for the
ride is only one criterion for determining the legitimacy of
recycling activities.  In the instant rulemaking, EPA is
proposing to reach a legitimacy determination for any oil-
bearing residual inserted into the coker without making the
requisite findings in accordance with applicable law and
policies.  For example, EPA presented 11 criteria in the
Government's brief challenging the legitimacy of Marine
Shale Processors' recycling activities, including whether
the residual to be recycled is effective for its intended
use, whether the residual is as effective as the material it
is replacing, whether the specifications for the waste are
selected to meet a recycling purpose, whether the hazardous
waste contributes properties of value to the product, and
whether the alleged recycling activity is replacing raw
material of low value. 

The infamous Lowrance Memorandum of April 26, 1989 adds
several additional and important criteria, including the
economics of the recycling process and whether the economic
incentive is derived from avoided disposal costs or the
value of the product, whether adequate records regarding the
recycling transactions are kept, and whether the toxic
constituents are "actually necessary" to the recycling
process.

To date, EPA has not even addressed most of these legitimate
recycling criteria, including but not limited to when the
residual is used for quenching purposes.  For example, EPA
does not address the economics of the recycling process, and
whether the principal reason for this so-called recycling is
avoided disposal costs, particularly for residuals with
limited oil content.  As discussed above in Section IV,
available information (including EPA data) indicate the
market value of petroleum coke is declining, it has little
or no market value currently, yet increasing quantities of
hazardous waste are managed in this manner.  These
circumstances strongly suggest avoided disposal costs are
driving the economics of this practice.  

In addition, EPA does not address whether adequate records
are kept of the recycling practices.  According to EPA's
contractor, "there are no paper trails" for domestic coke
sales because resellers will not volunteer crucial recycling
information.  See Exhibit 1 to these comments.  

Furthermore, EPA has not addressed whether the hazardous
waste contributes to the value of the coke.  In a paper on
the insertion of waste in cokers presented at the 1995 NPRA
annual meeting, representatives of Scaltech Inc. noted the
introduction of waste actually poses problems for the coking
operation.

The downside, especially of direct injection of raw sludge,
is that introduction of waste in the coking cycle interferes
with the process itself.  Therefore, it is important that
water be removed before the sludge is injected.  But no
matter which method of coking cycle injection of waste is
used, the introduction of waste with the feed reduces the
overall capacity of the coker, exposes process equipment to
abrasive solids and increases the fouling of tubes and
furnaces.

Consequently, refinery wastes are often not introduced into
the coker with the feedstock, but are instead used in place
of a portion of the quench water.  Even this practice poses
potential problems if "too much sludge" is applied
incorrectly.  

Indeed, the practice of using waste in the quench cycle as
opposed to inserting the waste with the feedstock completely
belies one of EPA's rationales for the proposal.  Based upon
a minuscule amount of unverified data provided by the
industry, EPA contends all oil-bearing sludges that could be
inserted into the coker are substantially similar to coker
feedstock.  If this were true, why isn't the waste always
inserted with the feedstock?  Moreover, the proposal would
exempt any oil-bearing residual, not just sludges, therefore
EPA's bald assertion does not extend to the myriad of wastes
potentially caught by the exemption.

Use of waste in the quenching process also belies industry
assertions (and EPA's belief) that it is "highly unlikely"
refinery owners/operators would allow the insertion of
inappropriate materials into the coker, given the importance
of the unit.  By using waste in the quenching process
instead of the coking cycle, there is a reduced threat to
the coker from the introduction of inappropriate wastes.  In
fact, "the introduction of sludge in the quench cycle is
limited only by the amount of ash and metals allowable by
coke specifications."  EPA would require the coke to
contain metal contaminants below the toxicity characteristic
because such metal specifications are inadequate. 
However, as discussed above, the characteristic does not
cover nickel, and the characteristic concentration
thresholds are based upon leachate concentrations largely
irrelevant to the subsequent use of coke as a fuel. 
Therefore, neither the purported incentive to protect the
coker or the application of the toxicity characteristic
would protect against the introduction of inappropriate
wastes.

Ironically, new technologies encourage the use of listed
refinery sludges (and presumably other wastes) in the
quenching process through prior reclamation techniques
which, in part, remove the free oil so that there is
"practically no oil" in the waste used for quenching.  Yet
under 40 CFR 261.6(a)(3)(v), the sludges still apparently
qualify as a "hazardous waste containing oil", and therefore
the similar handling of other wastes would presumably still
meet the "oil-bearing residuals" definition in the proposed
exemption.  As noted above, EPA has yet to address how the
remaining hazardous constituents in the deoiled waste
contributes to the production of coke or the economics of
the process.  These technologies are justified economically
solely  
on the basis of avoided disposal costs.  (EDF, 00006,
L0009)

Response:  EPA agrees that the so called sham criteria, use
of which were upheld emphatically by the Fifth Circuit in
the Marine Shale litigation, are also relevant here to
ascertain whether the  quench coking process is sham
recycling or a potentially excludable intra-industry
recovery process.  However, EPA disagrees with the
commenter's main premise that quench coking produces only
coke as an output.  Data provided to the Agency from
industry sources indicate that hydrocarbons are recovered as
a light fraction (i.e. as refinery feedstock, not as
petroleum coke) from oil-bearing secondary materials when
these materials are fed to the coker, including when these
materials are fed into the coker with the quench cycle.  

The efficiency of this recovery is comparable to the
recovery of light ends during the conventional coking
process.   In addition, industry data indicate that there
are always recoverable levels of oil in sludges generated by
petroleum refineries and typically fed into the coker with
the quench.  

Based on a considered evaluation of conflicting comments
received by the Agency regarding the constituent content of
sludges fed to the coke and the degree of oil recovery when
secondary materials are fed into the coker with the quench,
and using engineering and technical judgement in
ascertaining the extent of recovery of hydrocarbon values
from the secondary materials used in the quenching process,
the Agency believes that oil (i.e., hydrocarbon value) is
recovered during the quenching process and that the
efficiency of this recovery is comparable to the recovery of
light-ends during the conventional coking process.  This
belief is based largely on the Agency's best professional
judgement upon review of the typical range of boiling points
in the hydrocarbons present in the secondary materials, in
concert with the temperatures these secondary materials
experience in the coke drum for the duration of the quench
cycle; because of the presence of water during the quench
cycle, the additional effect that water volatilization is
predicted to have on the removal of volatile constituents
(i.e., an effect analogous to "steam stripping") also
serves, in the Agency's best professional judgement, to
facilitate the removal and transport of volatilized
hydrocarbons up and out of the coke drum to be recovered. 
In applying it's best professional judgement to the
technical information (e.g., boiling point ranges, coke drum
temperatures, effect of water vapor, etc.) provided by
commenters on both sides of the issue, the Agency relied
heavily on it's own familiarity with the industry, informed
by numerous site visits to refineries and experience with
the secondary materials at issue.  The Agency also was
persuaded by certain specific simulations of boiling point
ranges provided by oil industry representatives.  (The
Agency also notes that in the worst case scenario provided
by one commenter opposed to the exclusion, which assumed 80%
of the oil in the secondary material was too heavy to
significantly volatilize at the temperatures encountered
during the quenching process, there was recovery of
hydrocarbon, even from the heavy oil fraction.)

The Agency notes that the metals levels of sludges generated
by petroleum refineries and typically fed into the coker
(e.g., sludges bearing hazardous waste codes K048-K052) are,
for the most part, comparable to the concentration of metals
in normal refinery feedstocks.  Although levels of lead and
chromium may be higher than normal petroleum feedstocks, the
concentrations of these two metals in petroleum sludges are
expected to decrease due to changes in the petroleum
production process.   The NESHAP and MACT standards
promulgated under the Clean Air Act will result in chromium
no longer being used in cooling towers (see 40 CFR Part 63,
Subpart Q). Therefore, the principal source of chromium
contaminants in the production process will be ending.  Lead
levels in petroleum sludges will continue to decline due to
the phasing out of leaded gasoline as a product line.  

The Agency is convinced, after a review of data provided by
commenters, that the other hazardous metals found in the
hazardous secondary materials can be traced back to the
metals found in the original crude oil feedstock and so do
not represent contaminants introduced through means other
than the continued processing of the raw material
feedstocks.  EPA's traditional concern regarding unnecessary
hazardous constituents being processed and ending up in a
product is mitigated in this case because the Agency views
coking as the continual processing of a raw material that
contains the hazardous constituents, with concentrations of
constituents found in the feedstock streams varying
dependent on the point in the overall production process. 
In the context of a multi-step production process, there is
much less of an element of discard of the hazardous
constituents inherent in the original raw material than
there would be had these secondary materials been generated
by another industry or had the hazardous constituents not
been inherent to the original raw material.

Concerning the issue of net contribution of the oil-bearing
hazardous secondary materials to the coke product (i.e.,
added energy value vs. added ash content), the petroleum
industry maintains that the additional ash content is
insignificant and points to the amount of coke product
produced per cycle (ranging from about 400 to 800 tons) that
would be endangered if the ash content (as well as the VCM
level) contributed during the quenching process was
sufficient to lower the value or marketability of the coke
product.  Further, EPA notes that anode-grade coke, the most
high-valued coke with the most stringent product
specifications, can and is produced from quench coking and
is likewise able to meet the product specifications while
using oil-bearing secondary materials in the quenching
process.  Most important, as noted, the quenching process
recovers petroleum as a light fraction; it does not just
generate coke.  Thus, evaluation of contribution or non-
contribution to the coke product is not the sole relevant
inquiry, or even the principal one.

The assertion by the commenter that it is questionable that
the component in the secondary material that fulfills its
primary purpose (i.e., oil) could also be a limitation on
the use of the secondary material (i.e., that too much oil
would degrade the coke product itself) is not compelling. 
It is not uncommon that industrial processes have
specifications on a feedstock material that requires a
minimum of a certain component while at the same time
requiring that a maximum level for the same component not be
exceeded because it would degrade the quality of the
product. 

In the case of oil-bearing secondary materials generated by
petroleum refineries, the Agency disagrees with the
commenter's assertion that the principal reason for using
these secondary materials in the coking process is the
avoidance of disposal costs.  The Agency is convinced that
there is some beneficial contribution to the coke product in
the form of carbon and some energy values.  Simply put, any
hydrocarbon not recovered as light ends as described above
must, by a straightforward mass balance assumption, remain
in the coke product that is itself almost entirely made of
carbon and is marketed for its carbon content (i.e., as a
fuel).  In addition, as noted above, EPA does not accept the
commenter's premise that this process simply incorporates
materials into the coke.  A light petroleum fraction is
recovered via desorption for return to the refining process.

Given that the recovered hydrocarbon is the primary product
of using the secondary materials in the quenching process,
the simple fact that the coke product (i.e., the co-product)
continues to meet the applicable product specifications and
shows no appreciable increase in risk carries more weight in
the Agency's evaluation.  In other words, demonstrating
hydrocarbon recovery is the key test in determining whether
the hazardous secondary materials actually serve a useful
role in the overall coking operation, rather than
demonstrating a net contribution to the coke (as opposed to
no degradation of the coke).  EPA is convinced that this oil
cannot be recovered by other means (i.e. is not amenable to
direct refining or conventional coking), so that the quench
coking process can be viewed as the final step in a
hydrocarbon recovery chain.  Finally, the Agency believes
that economic forces, driven by product specifications and
competition for markets, will serve to ensure that the
quenching process is not simply a means of indiscriminately
disposing of hazardous wastes.

The Agency has determined that, as with other side streams
generated by one process and used as feedstocks to other
production processes, this activity constitutes a link in
the multi-step chain of processing steps designed to recover
as much of the hydrocarbon value from the original crude oil
feedstock as possible.  Thus, there are arguably aspects of
this activity that lead one to conclude that the oil-bearing
hazardous secondary materials used in the quenching process
can be considered, for regulatory purposes, as part of an
on-going hydrocarbon recovery and utilization production
process and hence classified (as an act of interpretive
discretion) as an activity not subject to RCRA jurisdiction.

EPA also has no evidence that the quenching process could be
viewed as part of the waste management problem, part of the
jurisdictional tests articulated in AMC I and II.  As
discussed earlier, there is no significant evidence of
degradation of coke product quality, and indeed, coke
products produced with and without using secondary materials
in the quenching process are largely indistinguishable from
the standpoint of concentrations of hazardous
constituents.  And finally, again, EPA believes that the
recovery of hydrocarbon from the oil-bearing secondary
materials in the quenching process is consistent with the
overall petroleum refining process, and the coking operation
in particular, i.e., the recovery of hydrocarbons for the
production of high-value fuel products.  This goal, in turn,
is consistent with the RCRA objective to encourage safe
types of recycling.  (See RCRA section 1003(a)(6)).

Taken all together, the fact that 1) the recovery efficiency
of hydrocarbons from oil contained in the secondary
materials used in the quenching process is comparable to the
recovery efficiency of the conventional coking process, 2)
the use of oil-bearing hazardous secondary materials
(including RCRA listed hazardous wastes) in the quenching
process is consistent with the overall goal of the petroleum
refining industry, namely to maximize the  recovery of
hydrocarbon values from the original crude oil feedstocks,
and 3) the coke product continues to meet product
specifications and indicates no increase in risk (and so can
be viewed as not being part of the waste disposal problem,
in the language of the D.C. Circuit), the Agency concludes
that the use of oil-bearing hazardous secondary materials
generated by the refinery can legitimately be used in the
coke quenching process.

EPA believes that these factors outweigh any inferences that
could be drawn from the fact that some refineries may be
paid to process other refineries' second materials in coking
processes.  (See 53 FR at 522 (Jan. 8, 1988) noting that the
so-called sham recycling criteria are to be considered on a
case-by-case basis with the weight given any particular
factor varying as appropriate under the circumstances; the
same language appears in the Lowrance Guidance Memorandum
referred to by the commenter.)

The Agency considered, as suggested in several comments,
setting a minimum oil content to define the scope of "oil-
bearing secondary materials" that are excluded when used in
the quenching process, or to require a demonstration of
hydrocarbons actually being recovered from the excluded
secondary materials that is comparable to oil recovery in
the conventional coking process.   The Agency rejected
limiting the exclusion based on a set minimum oil content or
a recovery efficiency requirement for several reasons.  

As the petroleum industry stated in their comments, the
quenching process represents the last possible process in
which to recover hydrocarbon from the original crude oil
feedstock.  The refinery processes and operating procedures
are designed to separate and process into products as much
hydrocarbon as possible from the crude oil feedstock, in
other words, to prevent as much oil from making its way into
these secondary materials as possible.  The oil that does
make its way into these secondary materials is generally
considered unavoidable and inevitable, or in some cases, too
much oil in these secondary materials is evidence of a
problem with some aspect of the overall refining process or
of the wastewater treatment system. (These same factors also
explain to some degree the variability in the oil content of
secondary materials used for quench coking: the same
materials are used but the oil content varies depending on
the daily efficiencies of the refining process and
wastewater treatment system).  Thus, it would be counter to
the overall efficiency of the petroleum refining to require
a minimum oil content in the secondary materials, since
higher oil levels would tend to indicate that the same
hydrocarbons are escaping recovery elsewhere in the system.

Also, the Agency believes that, in this case, a minimum oil
content condition would do little to ensure that only those
secondary materials from which oil can actually be recovered
would be excluded; or in other words, the Agency does not
believe that setting a minimum oil content would ensure that
secondary materials are legitimately being used in the
quenching process.  Since most of the secondary materials in
question result from wastewater treatment, a minimum oil
content requirement would only serve to encourage a refinery
to operate the refinery process less efficiently to ensure
that these secondary materials contain the minimum oil
content and thus avail themselves of an exclusion.  

As for requiring a demonstration of oil recovery efficiency
comparable to the conventional coking process, the Agency is
assured that the normal operating practices and conditions
described above (e.g., typical hydrocarbon boiling point
ranges in secondary materials, coke drum temperatures at the
end of each cycle, presence of water vapor) inherent to the
quenching process will result in a comparable oil recovery
efficiency.  While there may be fluctuations in the actual
volume of oil recovered (due to the fluctuations in the oil
content of the secondary materials as well as the ratio of
heavy-to-light oil in the secondary materials), the
quenching process per se is such that there will be oil
recovered from oil-bearing hazardous secondary materials
based on the Agency's best professional judgement as
described earlier.   Therefore, requiring an actual
demonstration of recovery efficiency would be unnecessarily
burdensome unless there is a question regarding a site-
specific coke quenching process or the hazardous secondary
materials being used.  The exclusion for oil-bearing
hazardous secondary materials generated by the petroleum
refining sector that are being legitimately used in the
quenching process is conditioned therefore, only on these
materials being managed such that there is no land placement
and no speculative accumulation, and that the coke product
produced not exhibit a characteristic of hazardous waste.

However, the Agency believes it is fundamental to this
exclusion that there actually be oil recovered for further
refining when these oil-bearing hazardous secondary
materials are used in the quenching process.  After all, the
exclusion is only for secondary materials returned to a
refining process for oil recovery, so that legitimate
recovery must be occurring.  Therefore, the Agency
recognizes that the possibility exists in any particular
case that quench coking may represent a means for disposing
of hazardous wastes, and not represent a means of
legitimately reusing secondary materials in an ongoing
production process.  Factors that would have to be
considered by the Agency in making this determination,
applicable in each case, are the percentage of oil in the
secondary material, whether light hydrocarbons are recovered
and the efficiency of the recovery, the effect the hazardous
constituents have on the coke product, whether the refinery
is paid to take the secondary materials, and whether there
are high concentrations of non-indigenous toxics (toxics not
originating in the crude oil feedstocks) which do not
benefit the coke product.

In addition, the fact that petroleum industry
representatives have referred repeatedly to quench coking as
a means of getting rid of hazardous wastes means that this
operation needs to be scrutinized with some care to assure
that these statements do not become reality.

EPA also clarifies that the Agency is not including within
the scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911).  The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  Thus, the possibility exists that other types of
secondary materials, generated outside the petroleum
refining sector, may contain toxic that are non-indigenous
to petroleum feedstocks, and that the possibility exists
that the coking process could be used to get rid of these
toxics.  The fact that representatives from the petroleum
refining industry have referred to quench coking as a means
of waste disposal necessarily means that EPA should be
cautious as to the scope of an exclusion involving these
operations.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector.  
The Agency has no information on which to base a finding
that the use of oil-bearing hazardous secondary materials
originating in a non-refinery sector of the petroleum
industry in the coke quenching process would be anything
other than the management of wastes (e.g., hazardous waste
recycling) from that non-refinery sector.

The Agency also is requiring that the materials excluded
under this provision of today's rule be returned directly to
a refinery for insertion.  While this is not an issue if
materials are recycled on site, EPA has concerns about
situations where these materials are generated at one
refinery for insertion into another, but are instead managed
at intermediate non-refinery facilities prior to insertion
into a refinery process.  This is consistent with the
argument that the exclusion is provided on the basis that
secondary materials are being used within the realm of on-
going production in petroleum refining sector.

Analyses conducted by EPA confirm that the final coke
product is basically unchanged by the use of hazardous oil-
bearing secondary materials in the coking process.  The
final exclusion from the definition of solid waste for oil-
bearing secondary materials generated at petroleum
refineries and returned to the refinery process is
conditioned on there being no speculative accumulation of
the materials, on the materials not being placed on the land
prior to reuse and stored in a manner to minimize loss. 
Finally, the reuse of the secondary materials in the
refinery process must not result in the coke product
exhibiting any of the characteristics of hazardous waste.

Comment 2a:  Recycling: Gaps Between Perception And Reality
Recycling of hazardous wastes in all its forms has always
been regarded as a preferred form of environmental
management due to the special promise that recycling holds: 
reclamation of a resource, and protection of the
environment.  Indeed, many forms of current-day recycling
truly fulfill this promise.  However, just as there is a
major difference between Mother Theresa and Ma Barker, so
too merely attaching the "recycling" label to a practice
does not guarantee the implied protection.  In fact, a
rapidly growing number of recycling practices, particularly
in the petroleum industry, not only fail to fulfill this
promise, but are making an outright mockery of it.

Recycling: A Reality Check reveals how hazardous waste
recycling has become the "Wild West" of hazardous waste
management.  In the process, the failure to control
petroleum waste recycling is:  lowering the overall
standards for the industry, punishing good recyclers,
discouraging new technologies, making a mockery of the Clean
Air Act and historical Land Disposal Restriction controls
under RCRA, causing the export of toxics to developing
countries in the form of petroleum coke, effectively
deregulating the oil industry's hazardous waste practices,
and resulting in increased pollution through unregulated
recycling practices.  (See Chapter 7.)

The gap between the public's perception of recycling's
benefits and the reality of the environmental damages that
recycling has caused is significant.  (See Chapter 1.) 
Moreover, this current gap between perception and reality is
being both exploited and exacerbated: exploited by a growing
number of refineries and other firms that seek to expand
unregulated operation based on historical loopholes (See
Chapters 2-3);  exacerbated by lax State and Federal
enforcement policies (See Chapter 4, 6); and, will be
accelerated by four pending policy initiatives of the
Administration that would effectively deregulate the
entirety of the  petroleum industry's hazardous waste
management practices.  (See Chapter 5.)

Current Regulations: Sanctioning Pollution in The Name of
Recycling

Under current RCRA regulations and enforcement policies
petroleum refineries are:    1) packing petroleum coke with
toxic metals and carcinogens in the quench cycle under the
guise of "recycling" --- apparently a direct violation of
the Agency's "sham recycling" prohibition; 2) operating
unpermitted, covert commercial recycling facilities on their
properties under a claim of "exempt recycling;" 3) land
disposing of refinery wastes that contain percentage-levels
of carcinogenic compounds often into unlined landfills; and,

 4)  "Blending-up" low-Btu refinery wastes/dirt into heavy-
metal containing hazardous waste fuels.  (See Chapters 2-4.)

Clean recycling alternatives to coking and fuel blending not
only exist (i.e., gasification, desorption,) but have been
developed by our own petroleum industry in many cases.  It
is ironic, if not shocking, that the use of these U.S.-
developed technologies (i.e., particularly gasification) is
being planned in Europe and Asia, but not the U.S.  In
short, as Italy is installing non-polluting petroleum
recycling technology, in the name of "encouraging recycling"
our refineries  are increasing  production of the world's
dirtiest fuel, petroleum coke.  This increase is directly
attributable to the current and planned regulatory
subsidiaries that the EPA has and continues to lavish on the
refining industry.  EPA regulations are encouraging
refineries to use petroleum coke as a pollution sink and
thereby evade the very public health and environmental
protections required of all other forms of hazardous waste
management.  

Pending Policies:  Going From Bad To Worse

Moreover, this Report demonstrates the compounding and
adverse environmental implications of four pending recycling
initiatives in the Office of Solid Waste, OSW (Note:  Office of Solid Waste, OSW, was renamed Office of Resource Conservation and Recovery, ORCR, on January 18, 2009) (See Chapter
5) and two glaring lapses in enforcement of current
regulations (See Chapter 4): 

     1) the proposal to grant a total exemption to on-site
     recycling at petroleum refineries including expansion
of
     the coking exemption (62 FR 16747; 4-8-97);

     2) the failure to list additional petroleum refinery
     wastes as hazardous under RCRA (62 FR 16747; 4-8-97);

     3) several aspects of the pending amendments to the
     Definition of Solid Waste, which would exempt all
on-site
     hazardous waste recycling practices from RCRA
permitting
     and preventive controls (61 FR 55718; 10-28-96);

     4) exempting all refinery waste cleanups from land
     disposal pre-treatment requirements (61 FR 55721;
10-28-96);

     and, 

     5) the failure to investigate and enforce against
     violations of EPA's Sham recycling policies by allowing
     untreated hazardous wastes to merely be disposed of
onto
     the coke pile as "quench" without recycling or
     reclamation, and by failing to enforce its own policies
     that prohibit blending up of low-Btu wastes to produce
     hazardous waste fuels.  (See Chapter 4.)

Of all the aforementioned actions, the first one is the most
disturbing.  The Agency is on the verge of sacrificing its
hard-fought policies to prevent sham recycling by allowing
indiscriminate reinsertion of wastes back into the coking
process in its pending rulemaking (62 FR 16747; 4-8-97.) 
This proposed new exemption is so broad as to effectively
codify a special regulatory exemption from the "sham
recycle" policy for refinery coking operations (See p. 37.) 
Why is the Agency going out of its way to encourage
production of a waste material that has a $0 market value,
that is already serving as a pollution sink, and which will
only make the world's dirtiest fuel even dirtier?

Is This "Reinventing Government?" 

The Administration has undertaken numerous programs to
respond to purported claims of over-regulation by
manufacturing industries: the Common Sense Initiative (CSI),
and Project XL to name two.  Moreover, the current Solid
Waste Definition proposal (See Chapter 5) represents yet
another carte blanche surrender of jurisdiction with no
legal impetus or environmental justification.  This effort
again emphasizes purported claims of regulatory excess with
relatively little or no attention to recycling's dark side;
the uncontrolled release of toxic constituents in the
pursuit of marginal or non-existent resource values (i.e.,
coke, with a current market value of $0.) 

To date, these type of "exemption expansion" activities have
almost exclusively characterized your Administration's
"reinvention" efforts in the hazardous waste area.  This
Administration has a fundamental decision to make: will it
continue the transition toward treatment and technology, or
will it reverse the unprecedented progress of the last
decade and allow "recycling", of all things, to become the
new means to shift pollutants from one media to the next? 
Is it going to allow "reinventing government" to translate
into a dismantling of national controls, in lieu of a
patchwork quilt system of State controls that gave rise to
current problems, or will "reinventing government" mean
rectifying the loopholes that are making "recycling" the
most reckless area of hazardous waste management?  If ever
there were an area that cried out for federal leadership, or
"reinvention" this is it.  However, "reinvention" must mean
more than simply throwing exemptions at the petroleum
industry and other hazardous waste generators and allowing
them to attach a "recycling" label to anything and
everything that they so desire, irrespective of where the
toxic constituents from the recycled wastes are deposited in
the environment.

Is This Encouraging New Technology?

When our refining industry develops advanced technology such
as gasification for use everywhere in the world but in the
U.S., and when an ever increasing volume of dirtier coke is
produced in the U.S. in direct response to RCRA recycling
exemptions, this nation's approach to hazardous waste
recycling needs to be quickly "reinvented."  Instead it is 
being further undermined by blithely catering to an industry
already engorged with exemptions.  If the petroleum industry
can produce non-polluting recycling technology for use in
Italy, it can certainly begin to use it in this country as
well.  (See Chapter 7.)

SUMMARY OF FINDINGS

The principle focus of this Report is on petroleum wastes. 
However, many of the examples cited herein have equal
applicability to other forms of organic waste reclamation as
well as to recycling operations involving metal-bearing and
other inorganic wastes.  Moreover, this Report focuses
primarily on legitimate recycling that is being done badly
(i.e., where toxic pollutants are merely shifted from one
media to the next due to inadequate regulation) ; as well as
"sham" recycling situations (i.e., operations producing
bogus recycled products for the purpose of evading hazardous
waste regulation).  The following are the major findings of
our 12-month investigative effort as presented in Chapters
1-8 of the Report.

CHAPTER 1:  PAST AND PRESENT RECYCLING PROBLEMS

  -  "Recycling" in all its forms is the most rapidly
growing
     hazardous waste management practice.  Every facility is
     trying to configure themselves as some type of
recycler;

  -  Unfortunately, recycling is also becoming the new haven
     for polluters and exemption seekers that desire self-
     regulation without accountability or governmental
     oversight;

  -  Although approximately 20% of the Superfund NPL is due
in
     whole or in part to recycling practices (See Chapter
1),
     environmental insults from recycling are not due to
     historical mismanagement alone, but continue to occur
     today;

  -  Moreover, the pollution caused by recycling is not
solely
     due to "sham recyclers" that produce bogus products
     nobody buys--such as Marine Shale Processors; but is
     increasingly due to legitimate recycling that is being
     done badly--i.e., facilities that make bonafide
products,
     but do so in a way that is virtually without regard to
     the fate of toxic and carcinogenic constituents
contained
     in the waste being recycled;

  -  For example, EPA went so far as to name
high-temperature
     metals recovery (HTMR) as the best technology for
     recycling of steel industry air emission control dusts
     due to the high level of zinc recovery that HTMR
yields.
     Nevertheless, due to the Agency's failure to control
     waste storage, containment, waste transfer, air
emissions
     and land disposal of various slags and residues (i.e.,
     which contained high levels of lead and cadmium) under
     these or other RCRA regulations, the Agency was forced
to
     engage in a multi-year prosecution and impose a multi-
     million dollar fine and 300+ page Consent Decree
     governing every aspect of recycling operations at the
     nation's leading HTMR facility in Pennsylvania. 
     Unfortunately, this rectifying action occurred only
after
     the  surrounding community had become contaminated with
     lead and cadmium dusts from the current recycling
     operation, which is now being addressed under the
     Superfund Removal Program;

  -  Rather than learning from its decade-long prosecution
of
     MSP (a sham recycler) or its resource-draining Consent
     Decree action with the Pennsylvania HTMR facility (a
     legitimate but sloppy recycler), the Office of Solid
     Waste continues to approach and "regulate" recycling as
     if it were some universally benign activity, mollified
by
     the mere mention of the "recycling" mantra, and
seemingly
     unconcerned with the fate of toxic constituents until
     environmental damage occurs;

  -  In short, doing one thing right should not become a
     license to do everything else wrong.  Simply because
     something of value is recovered from a waste should not
     be an explicit, or tacit license to merely shift the
     toxic constituents contained in the recycled waste back
     into the air, or to other media.  Nor should such
     recovery operations be allowed to sidestep the
preventive
     controls that apply to all other treatment and disposal
     facilities such as secondary containment, air emission
     controls, flood controls, waste testing, residue
     analysis, record keeping, and proper residue
management.

Response: Although the Agency agrees with the commenter's
contention that "simply because something of value is
recovered from a waste should not be an explicit, or tacit,
license to merely shift the toxic constituents contained in
the recycled waste back into the air or to other media," EPA
does not believe that this occurs with regard to the
exclusions promulgated in the final rule.  With regard to
use of secondary materials in the quench coking process, the
commenter's principal concern, after evaluating information
and data made available to the Agency regarding the reuse of
oil-bearing secondary materials in the quench coking
process, the Agency has concluded that the reuse of oil-
bearing secondary materials generated by the petroleum
refining sector by inserting these materials into the
refinery process, including inserting these materials into
the coker quench cycle can be excluded as part of the on-
going production process which is not part of the waste
disposal problem.  

Furthermore, the Agency does not see any adverse effect on
the coke product, nor (given the benzene NESHAP and the MACT
standards for the petroleum refining industry) impermissible
cross-media transfer of hazardous constituents.    

Data available to the Agency indicate that hydrocarbons are
recovered from oil-bearing secondary materials when these
materials are fed to the coker, including when these
materials are fed into the coker with the quench cycle.  The
efficiency of this recovery is comparable to the recovery of
light ends during the conventional coking process.  In
addition, data indicate that there are recoverable levels of
oil in sludges generated by petroleum refineries and
typically fed into the coker.  The metals levels in
sludges typically fed into the coker (e.g., sludges bearing
hazardous waste codes K048-K052) are, for the most part,
comparable to the concentration of metals in normal refinery
feedstocks.  Although the levels of lead and chromium in
these sludges may be higher than normal petroleum
feedstocks, the concentrations of these two metals in
petroleum sludges are expected to decrease due to changes in
the petroleum production process.   The MACT standards
promulgated under the Clean Air Act will result in chromium
no longer being used in cooling towers.  Therefore, the
principal source of chromium contaminants in the production
process will be deleted.  Lead levels in petroleum sludges
will continue to decline due to the phasing out of leaded
gasoline as a product line.  Other toxics originate with
crude oil and their presence is thus not inconsistent with
viewing the quench coking process as a final step in the
refining of crude oil -- the last means of recovering
available hydrocarbon fractions.  

EPA repeats that the Agency is convinced, after a review of
data provided by commenters, that the hazardous metals found
in the hazardous secondary materials can be traced back to
the metals found in the original crude oil feedstock and so
do not represent contaminants introduced through means other
than the continued processing of the raw material
feedstocks.  EPA's traditional concern regarding unnecessary
hazardous constituents being processed and ending up in a
product is mitigated in this case because the Agency views
coking as the end of the process of refining crude oil that
contains the hazardous constituents, with concentrations of
constituents found in the feedstock streams varying
dependent on the point in the overall production process. 
In the context of a multi-step production process, there is
much less of an element of discard of the hazardous
constituents inherent in the original raw material than
there would be had these secondary materials been generated
by another industry or had the hazardous constituents not
been inherent to the original raw material.
                            
EPA clarifies that the Agency is not including within the
scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911).  The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector. 
Oil-bearing secondary materials originating from the non-
refinery sector have the potential to include toxic
constituents that are not present in crude oil feedstocks
and that may not contribute to the refinery process.  It is
the Agency's intent not to exclude from the definition of
solid waste those secondary materials whose hazardous
constituents are only being discarded, or incorporated into
the coke product without benefit to the product.  The Agency
has no information on which to base a finding that the use
of oil-bearing hazardous secondary materials originating in
a non-refinery sector of the petroleum industry in the coke
quenching process would be anything other than the
management of wastes (e.g., hazardous waste recycling) from
that non-refinery sector.

The Agency also is requiring that the materials excluded
under this provision of today's rule be returned directly to
a refinery for insertion.  While this is not an issue if
materials are recycled on site, EPA has concerns about
situations where these materials are generated at one
refinery for insertion into another, but are processed at an
intermediate, non-refinery facility.  In cases where
materials generated at one petroleum refinery are to be
recycled at another refinery, to meet the conditions of the
exclusion the materials must be located either at the
generating refinery, at the receiving refinery, or must
otherwise be in transit between the two facilities.  This is
consistent with the argument that the exclusion is provided
on the basis that the secondary materials are being used
within the realm of on-going production in the petroleum
refining sector.

In response to the commenter's claims that coke has a zero
market value and that coke is being exported to developing
countries, the Agency reviewed available information
regarding the market value of coke and obtained information
from the Department of Energy (DOE) on coke exports. 
According to the article "U.S. Petroleum Coke Production
Expected to Increase," by Edward J. Swain in the November
10, 1997 issue of Oil & Gas Journal, fuel-grade coke is a
low-cost energy source for some utilities and industries. 
The article provides information on the market price of
petroleum coke.  During the period from 1992 through 1996,
the price for short ton of petroleum coke ranged between $15
and $21 and the price was increasing at the end of 1996. 
This information as well as industry data does not support
the claim that coke has no market value.  The article
provides an overview of petroleum coke exports.  Although a
major portion of the petroleum coke produced by U.S.
refineries was exported in 1996, the large majority of coke
was not exported to third world countries.  In fact, 68
percent of petroleum coke exports in 1996 were to Japan,
Spain, Italy, Belgium/Luxembourg, the Netherlands, Canada,
and Turkey. 

In any case, EPA remains convinced that the chief purpose of
quench coking is to recover a light hydrocarbon fraction for
return to refining.  The coke is a byproduct of that
recovery process.  To the extent that actual oil recovery is
not occurring in a particular instance, the Agency would
undoubtedly regard the practice as sham recycling. 
 
In response to the commenter's claim that gasification may
be a preferable means of recovering hydrocarbons from
petroleum industry secondary materials, EPA recently
published a Notice of Data Availability seeking comment on
this precise issue.  A result of analysis of the comments
could lead EPA to also exclude secondary materials from
refineries which are gasified.  EPA is not making a final
determination on this issue in this rulemaking, and so is
leaving the matter open for final action at a later time.

The commenter's other points regarding recycling practices
that are not the subject of this rulemaking are beyond the
scope of this proceeding and so do not require response in
this forum.

Comment 2b: CHAPTERS 2-4: DEREGULATING THE PETROLEUM
INDUSTRY

Deregulating the Petroleum Industry

  -  This repackaging of petroleum pollutants in the name of
     "recycling" is being accomplished through four basic
     means:  coking (Chapter 2), "covert" commercial
     facilities (Chapter 3), failure to enforce (Chapter 4),
     and failure to regulate as "hazardous" other refining
     wastes (Chapter 5).  The following pending Agency
     policies will make each of these worse;

  -  If approved, pending regulatory proposals regarding
     coking and often "recycling" practices would
effectively
     deregulate the petroleum industry, and put all of their
     recycling practices on the honor system.  The proposed
     expansion of the coking exemption is so broad that it
     would even sanction "sham recycling" activities such as
     using coke as disposal medium.  (See Chapters 2;
Chapter
     5, p. 75);

  -  If approved, pending proposals would also grant carte
     blanche to the petroleum industry to operate
un-permitted, 
     commercial hazardous waste recycling units at
     their refineries as well.  (See Chapters 3; Chapter 5,
p.
     73);

  -  Pending regulatory measures also fail to list over
     200,000 tons per year of heavily contaminated petroleum
     wastes, which are subsequently disposed of as           
    
     "non-hazardous" wastes into unlined pits and landfills
or
     burned in substandard facilities (See Chapter 5, p.
81);

  -  The Agency has suspended without public notice or
     rulemaking the applicability of the Land Disposal
     Restriction Standards to all petroleum waste cleanups
     (See Chapter 5, p. 85);

  -  When the petroleum refining industry says it "recycles"
     its waste, what does that really mean?  Based on the
most
     recent survey of its own members, the American
Petroleum
     Institute's own data reveals that only 40% of the
volume
     claimed as "recycled" actually qualify as traditional
or
     controlled activities such as reclamation, regeneration
     or re-feed to the crude unit.  Table ES-1 reveals the
     type and prevalence of recycling methods used.  The
     Report fails to specify what "Other Recycle" means, but
     may include uses such as fill material, dyking,
     composting or other land placement practices;

  -  The most recently released API data from 1995 reveals
     that the level of coking continues to increase (i.e.,
to
     29%, double the figures API reported in 1993), and the
     amount of refeed to the crude unit (i.e., the form of
     recycling most equate with the term "recycling") is
     almost non-existent at 1% (See (  ) in Table ES-1).
     These trends are not only ironic, but directly refutes
     the Agency's principle rationale for proposing an
     expanded series of recycling exemptions for the petroleum
     industry --- that its waste materials are
"feedstock-like." 

     See p. 85 for detailed discussion.

  -  Ironically, in the 1996 API Survey actually reported
that
     "coking" was their leading "pollution prevention"
     technique for 6 of the 12 wastestreams addressed by the
     Survey. 

See also Section III (p. 15)  for more complete discussion
of the industry's current exemptions and its environmental
problems.

              TABLE ES-1: REFINERY RECYCLING METHODS


Method                    % of Total Recycling
"Other" Recycling         34%
Coker                     26%   (29%)
Reclamation               17%

Regeneration              8%
Refeed to Crude Unit      10%   (1%)
Catalytic Cracker         6%

Response:  API supplied the Agency with detailed information
regarding the coking operation, presenting a description of
the physical processes involved in the coking process and
the economic value of the overall coking operation to the
refinery, as well as the feedstocks used and products
produced.  The Agency is convinced that the use of
oil-bearing 
secondary materials as feedstock for conventional
coking represents legitimate reuse of these materials in an
ongoing production process whose main purpose is to
thermally convert the heaviest crude oil fractions into
light-end hydrocarbons (typically about 70 % of the
feedstock is recovered as lighter oil fractions) used as
feedstocks for refinery processes that produce high-value
fuel products.  In many cases, the coking operation is
essential to the profitable production of petroleum products
from heavier crude oil feedstocks.  The coke product itself
may best be characterized as a co-product of the coking
operation, while the principal products are the light-ends
that are returned to the refining process.  Thus, the Agency
is affirming that the coking operation, including the quench
cycle, is integral to the ongoing petroleum production
process, resids are normal feedstocks to this process and
petroleum coke is a legitimate fuel product (noting that
high-grade petroleum coke -- which can result from quench
coking -- is used for producing anodes for use in electric
furnaces, such as for steel and aluminum manufacturing).

In the specific case of oil-bearing secondary materials
added to the coke quenching cycle, the Agency has determined
that the quench cycle represents continual production in
that oil contained in the secondary materials is either
volatilized and condensed for further refining into high-
value fuels, or is incorporated into the coke product,
adding to the coke's carbon content and hence contributing
some energy value.  Given that the recovered hydrocarbon is
the primary product of using the secondary materials in the
quenching process, the simple fact that the coke product
(i.e., the co-product) continues to meet the applicable
product specifications and shows no appreciable increase in
risk carries more weight in the Agency's evaluation.  In
other words, demonstrating hydrocarbon recovery is the key
test in determining whether the hazardous secondary
materials actually serve a useful role in the overall coking
operation, rather than demonstrating a net contribution to
the coke (as opposed to no degradation of the coke). The
Agency understands the commenter's concern that since it is
obvious that these secondary materials would otherwise be
hazardous wastes that would be treated and disposed of if
not used in the quenching process, it would seem to be a
simple matter, as the commenter suggests, to ascribe a
simple waste disposal motive to this activity and nothing
more.   However, the Agency is compelled to go further and
determine whether the oil-bearing secondary materials
actually contribute to the product and/or process, or
otherwise determine whether there is a production-related
value to this activity.

The Agency solicited further information from industry to
demonstrate the recovery efficiency of the oil contained in
the hazardous secondary materials used in the quenching
process.  EPA believes that a comparison of the recovery
efficiency of the quenching process to the recovery
efficiency of the conventional coking process (of the
resids) would provide some indication of how "production-
related" the use of the hazardous secondary materials in the
quenching process is (i.e., the more similar the quenching
process is to the conventional coking process in the
recovery of hydrocarbon values, the more it may be
considered analogous to, or a component of, the coking
process). The data supplied indicate that the recovery
efficiency of oil contained in the secondary materials
during the quenching process is comparable to the recovery
efficiency from the feedstock side of the coking operation
--
i.e. from conventional coking.  Thus, although the oil
content in the hazardous secondary materials is markedly
less, at the very least, there is demonstrated hydrocarbon
recovery as a light fraction from the secondary materials
used in the quenching process.

With regard to the commenter's assertion that the level of
coking is increasing, data available to the Agency indicate
that there may be several reasons for this occurrence.  The
use of coking may be increasing due to changes in the
characteristics of available crude and the fact that more
refineries have cokers.  As more refineries add cokers to
the refining process, the production of coke and the levels
of coking are expected to increase.  In addition, in 1994,
the exclusion from the definition of solid waste for
petroleum coke produced from refinery hazardous wastes
containing oil (40 CFR 261.6(a)(3)(v)) was expanded to
include coke produced using hazardous wastes generated by
the same "person," rather than merely generated at the same
"site." 

According to information published by API, 406 thousand wet
tons of primary sludge was managed by refineries in 1994. 
This represents the largest quantity of primary sludge
generation ever reported (288 thousand wet tons were
generated in 1993).  API's information indicates that it is
likely that this reflects the refineries' efforts to meet
statutory deadlines to retrofit or close primary sludge or
TC surface impoundments in 1994.  Thus, just as increases in
waste generation noted by API between 1991 and 1993 were
related to regulatory actions, the closure of certain land-
based units resulted in peaked generation of primary sludge
in 1994.   API questioned the refineries regarding the
increase in sludge generation and they stated it was an
"abnormal or one-time event."  The primary management for
this added quantity was "recycle to the coker."

In contrast, API reported a decrease of greater than 60
percent in primary sludge management in 1995.  API members
reported managing only 128 thousand tons of primary sludge
in 1995.  This is the lowest quantity managed since 1991,
and possibly provides an explanation regarding the
fluctuation in the amount of secondary materials managed in
cokers.  In the final analysis, as petroleum coking is
part of legitimate production, increased petroleum coking
would indicate increased materials recovery.  In addition,
as discussed above the Agency is investigating gasification
as another means of recovery for these types of secondary
materials.

EPA clarifies that the Agency is not including within the
scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911).  The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector. 
Oil-bearing secondary materials originating from non-
refinery sectors have the potential to be more waste-like
and thus do not warrant an exclusion, especially if their
ultimate use is in the quenching process.

EPA further clarifies that the exclusion from the definition
of solid waste for oil-bearing secondary materials returned
to the refining process only extends to materials that are
actually re-inserted into the refinery process.  In cases
where oil-bearing secondary materials are reclaimed prior to
re-insertion, any residuals that may result from reclamation
which are not returned to the refinery process, and
therefore may be discarded, retain the original hazardous
waste listing.  The Agency modified the proposed listing
description for F037 to include any residuals that result
from the processing of listed hazardous wastes that will be
disposed.  The Agency decided to include this clarification
within the regulatory language so that the rules are
explicit and to ensure that there is a requirement to manage
residuals from the reclamation of hazardous secondary
materials as hazardous wastes.

Responses to other points noted by the commenter in the
above list are provided below.


Comment 2c:    Encouraging Production of Dirty Fuels  
               Petroleum Coke

  -  Present and pending Agency policies actively encourage
     the petroleum industry to produce more of the world's
     dirtiest fuel, petroleum coke, which is a major  source
     of pollution:  burning of coke is a concentrated medium
     of metals, sulfur and toxics.  Rather than removing ash
     and heavy metal toxics from an oily waste stream,
coking
     merely repackages and concentrates them.  (See Chapters
     2, 5);

  -  Moreover, listed hazardous wastes are being disposed of
     without treatment under the guise of serving as
"quench"
     at the end of the coking process.  This practice serves

     no "recycling" purpose, rather it appears to be mere
     disposal of untreated hazardous waste onto the coke
pile
     (See Chapter 2, p. 37);

  -  Table ES-2 reveals that currently petroleum coke has $0
     market value.  There is virtually no domestic market
for
     coke as a fuel.  It's only value is that of an
     unregulated "pollution sink" for refinery wastes to
avoid
     regulation, and otherwise applicable treatment
     requirements.  (See Chapter 2, p 34);  

  -  The petroleum industry is increasing its use of
petroleum
     coke as a "pollution sink" for toxics from hazardous 
     wastes  despite the fact that petroleum coke as $0 market
     value as a fuel (See Chapter 2, pp 30-36);

  -  Coking is increasingly becoming the disposal method of
     choice for a wide variety of RCRA listed hazardous
waste. 
     As Table ES-3 reveals, coking has assumed the lead role
     in disposal of virtually all listed petroleum wastes. 
     Five (5) times more primary sludge (i.e., listed wastes
     F037-38) was being coked in 1994 than in 1992 according
     to the petroleum industries own data.  (See Chapter 2,
     p. 36);  

TABLE ES-2:  Market Price of Petroleum Coke (per ton),
1993-1996

1993         $20
1995         $15
1996        $0

             TABLE ES-3: TRENDS IN REFINERY COKING

RCRA Waste Code: F037(38)--Primary Sludge

Volume Coked (tons)
20,500 (1992)
30,300 (1993)
112,700 (1994)
Coking Popularity*
3 (1992)
2 (1993)
1 (1994)


RCRA Waste Code: K051--Separator Sludge
Volume Coked (tons)
23,900 (1992)
22,800 (1993)
44,340 (1994)
Coking Popularity*
2 (1992)
1 (1993)
1 (1994)

RCRA Waste Code: K048--DAF Float
Volume Coked (tons)
48,600 (1992)
43,300 (1993)
170,200 (1994)
Coking Popularity*
2 (1992)
2 (1993)
1 (1994)

* "Popularity" indicates rank of coking for the given waste
stream among all recycling, treatment disposal activities
including: coker, crude unit, catalytic cracker, other in-process
recycle, cement kiln or industrial furnace fuel or
feedstock,
reclamation, regeneration, "other recycle", incineration,
physical/chemical treatment, impoundments, land treatment,
landfilling and "other" disposal.

Response:  In evaluating whether the use of oil-bearing
secondary materials in the quenching process provides a
beneficial contribution to the coke product or process, the
Agency notes that the main purpose of the petroleum coking
unit is to recover hydrocarbons from the oil contained in
the feedstocks for further refining.  Similarly, the main
purpose of using the secondary materials in the quenching
process is the energy-efficient recovery of hydrocarbon from
the residual oil in the oil-bearing secondary materials. 
Concerning the issue of net contribution to the coke product
(i.e., added energy value v. added ash content), the
petroleum industry maintains that the additional ash content
is insignificant and points to the amount of coke product
produced per cycle (ranging from about 400 to 800 tons) that
would be endangered if the ash content (as well as the VCM
level) contributed during the quenching process was
sufficient to lower the value or marketability of the coke
product.  Based upon data provided to the Agency by the
petroleum refining industry, the Agency notes that coke
product produced using hazardous secondary materials in the
quenching process is basically similar to coke produced
without using secondary materials in the quenching process. 
Further, EPA notes that anode-grade coke, the most high-
valued coke with the most stringent product specifications,
can be produced using these secondary materials in the
quenching process.  The quench cycle represents continual
production in that oil contained in the secondary materials
is either volatilized and condensed for further refining
into high-value fuels or is incorporated into the coke
product, adding (perhaps marginally) to its carbon content
and hence its energy value.  Given that the recovered
hydrocarbon is the primary product of using the secondary
materials in the quenching process, the simple fact that the
coke product (i.e., the co-product) continues to meet the
applicable product specifications and shows no appreciable
increase in risk carries more weight in the Agency's
evaluation.  In other words, demonstrating hydrocarbon
recovery is the key test in determining whether the
hazardous secondary materials actually serve a useful role
in the overall coking operation, rather than demonstrating a
net contribution to the coke (as opposed to no degradation
of the coke).

EPA's traditional concern regarding unnecessary hazardous
constituents being processed and ending up in a product is
mitigated in this case because the Agency views this
activity as the continual processing of a raw material that
contains the hazardous constituents, with concentrations of
constituents found in the feedstock streams varying
dependent on the point in the overall production process. 
In the context of a multi-step production process, there is
much less of an element of discard of the hazardous
constituents inherent in the original raw material than
there would be had these secondary materials been generated
by another industry or had the hazardous constituents not
been inherent to the original raw material.  In general, the
hazardous metals found in the hazardous secondary materials
can be traced back to the metals found in the original crude
oil feedstock and so do not represent contaminants
introduced through means other than the continued processing
of the raw material feedstocks. 

Finally, EPA believes that the recovery of hydrocarbon from
the oil-bearing secondary materials in the quenching process
is consistent with the overall petroleum refining process,
and the coking operation in particular, i.e., the recovery
of hydrocarbons for the production of high-value fuel
products.  Therefore, the Agency is providing a conditional
exclusion for oil-bearing hazardous secondary materials that
are inserted into the coker, based on the assumption that,
whether inserted along with normal feedstock (i.e., resids)
or used in the quenching process, hydrocarbons are recovered
for further refining and there is no degradation of the coke
product.

In response to the commenter's claims that coke has a zero
market value and that coke is being exported to developing
countries, the Agency reviewed available information
regarding the market value of coke and obtained information
from the Department of Energy (DOE) on coke exports. 
According to the article "U.S. Petroleum Coke Production
Expected to Increase," by Edward J. Swain in the November
10, 1997 issue of Oil & Gas Journal, fuel-grade coke is a
low-cost energy source for some utilities and industries. 
The article provides information on the market price of
petroleum coke.  During the period from 1992 through 1996,
the price for short ton of petroleum coke ranged between $15
and $21 and the price was increasing at the end of 1996. 
This information as well as industry data does not support
the claim that coke has no market value.

Likewise, the light hydrocarbon fraction which is recovered
through desorbtion in the quenching process has positive
market value. 

EPA cannot directly respond to the commenter's concerns
regarding the increased levels of coking.  Data available to
the Agency indicate that there may be several reasons for
this occurrence.  The use of coking may be increasing due to
changes in the characteristics of available crude and the
fact that more refineries have cokers.  As more refineries
add cokers to the refining process, the production of coke
and the levels of coking are expected to increase.  In
addition, in 1994, the exclusion from the definition of
solid waste for petroleum coke produced from refinery
hazardous wastes containing oil (40 CFR 261.6(a)(3)(v)) was
expanded to include coke produced using hazardous wastes
generated by the same "person," rather than merely generated
at the same "site."   In addition, API claims that increased
reliance on offshore heavier crudes has led to the addition
of coker capacity, creating some increased opportunity for
this process.  Aside from the obvious incentive to recover
hydrocarbons, another potentially significant factor could
be the expiration of Mobil's patent in 1995, such that any
refiner could begin using this technology without first
licensing it from Mobil and paying a royalty fee.

According to information published by API, 406 thousand wet
tons of primary sludge was managed by refineries in 1994. 
This represents the largest quantity of primary sludge
generation ever reported (288 thousand wet tons were
generated in 1993).  API's information indicates that it is
likely that this reflects the refineries' efforts to meet
statutory deadlines to retrofit or close primary sludge or
TC surface impoundments in 1994.  Thus, just as increases in
waste generation noted by API between 1991 and 1993 were
related to regulatory actions, the closure of certain land-
based units resulted in peaked generation of primary sludge
in 1994.   API questioned the refineries regarding the
increase in sludge generation and they stated it was an
"abnormal or one-time event."  The primary management for
this added quantity was "recycle to the coker."

In contrast, API reported a decrease of greater than 60
percent in primary sludge management in 1995.  API members
reported managing only 128 thousand tons of primary sludge
in 1995.  This is the lowest quantity managed since 1991,
and possibly provides an explanation regarding the
fluctuation in the amount of secondary materials managed in
cokers.  In the final analysis, as petroleum coking is
part of legitimate production, increased petroleum coking
would indicate increased materials recovery.  In addition,
as discussed above the Agency is investigating gasification
as another means of recovery for these types of secondary
materials.

Comment 2d: Toxic Waste Export

  -  RCRA's policies of encouraging the production of the
     world's dirtiest fuel, petroleum coke, are having
     significant international implications in that 70% of
     coke "fuel" is exported to developing countries,
because
     it cannot be burned in this country.  In fact,
petroleum
     coke is quietly serving as a conduit for illegal waste
     export in the name of "product export."  (See Chapters
2,
     p. 37; Chapter  7.)

  -  This trend is confirmed by other industry experts as
     well:

          Although some high sulfur residual fuel
          oil and fuel coke have been able to find
          markets in countries that are
          environmentally loose, the sales prices
          are crumbling and the markets
          disappearing.   (emphasis added)

Response:  Although a major portion of the petroleum coke
produced by U.S. refineries was exported in 1996, the large
majority of coke was not exported to third world countries. 
In fact, 68 percent of petroleum coke exports in 1996 were
to Japan, Spain, Italy, Belgium/Luxembourg, the Netherlands,
Canada, and Turkey.  Data available to the Agency indicates
that petroleum coke has a positive market value of at least
$20 per short ton.  It thus is a legitimate product.  In
addition, as noted above, the critical fact in evaluating
quench coking is that the main object of the process is
recovery of oil as a light fraction for return to the
refining process, and that this recovery occurs at the same
efficiency as in conventional coking.  The coke itself is a
byproduct of that recovery step.

Comment 2e:  Covert Commercial Facilities

  -  Louisiana is allowing the Shell Norco, LA refinery to
     operate an unpermitted commercial recycling facility on
     their property.  Louisiana's "pen pal" authorization
for
     this process unlawfully and incorrectly cites Federal
     authority for this exemption, and fails to address many
     of the preventive measures that are necessary for a
     commercial hazardous waste facility: waste analysis,
air
     emission controls, containment, storage, waste
     compatibility, record keeping and residue analysis and
     management.  (See Chapter 3, p. 49);

  -  Four other states are allowing Kipin Industries to
engage
     in unpermitted commercial recycling operations at four
     separate refineries under an unspecified series of
     recycling exemptions.  (See Chapter 3, p. 51.)

Response: The Agency cannot document the commenter's claims.

Information made available to the Agency by API and Shell
Norco indicate that facility does have a RCRA permit.  EPA
believes that the Shell Norco and Kipin Industries recycling
process has been scrutinized by state authorities and
determined to meet the substantive criteria for an exemption
for hazardous waste recycling.  In addition, the facility is
subject to air emissions standards under the CAA.  In
addition, the issue regarding the permitting status of one
(or a few) facilities is beyond the scope of today's
rulemaking.

Comment 2f:  Exempting Oily Waste Cleanups From Treatment
Requirements

  -  The Agency has not only exempted 500,000 tons of oily
     hazardous wastes from RCRA land disposal ban controls
at
     the CITGO refinery but it has institutionalized this
     policy for all such similar cleanup.  This
pusillanimous
     surrender of jurisdiction will now allow remedial oily
     wastes to be land disposed without treatment despite
     readily available technology to meet the Land Disposal
     Restriction (LDR) standards.  Once again the Agency has
     carved out an unjustified environmental exemption for
big
     oil.  (See Chapter 5, p. 86.)

Response: EPA has not provided a blanket exemption from RCRA
requirements for all petroleum cleanups.  However, any
facility conducting a remediation may apply for a case-
by-case treatability variance from the LDR treatment
standards. 
This issue is outside the scope of today's rulemaking
(although EPA notes that ultimately, a treatment variance
was not granted to Citgo because the company decided to
attempt to close the impoundment with waste in place, the
result being no treatment of the sludge, rather than the
partial treatment provided by the variance).

Comment 2g:  Enforcement Failures:  Sham Coke Production,
"Waste Maximization" Through Blending-Up, Illegal Land
Disposal

  -  Despite a decade-long fight to formally adjudicate its
     policies to prevent "sham recycling" in the context of
     the MSP case, when it comes to the refining industry,
the
     EPA has chosen to look the other way.  Hazardous wastes
     are being disposed of as "quench" at the end of the
     coking process."  This so-called recycling  process
     serves  no "recycling" purpose, rather it is mere
     disposal of untreated hazardous waste onto the coke
pile
     and appears to violate the Agency's hard-fought
principle
     to stop "sham recycling."  In fact, the proponents of
     this practice cite only one benefit of such a "waste as
     quench" practice --- cost savings on the treatment of
     refinery waste at permitted facilities.  There is no
     mention whatsoever of the Btu or yield benefits to coke
     production.  (See Chapter 2, p. 37; Chapter 4, p. 67);

  -  This shifting of pollutants from the land back into the
     air in the form of toxic laden petroleum coke is
     exacerbated by the Agency's failure to enforce against
     illegal  "blended up" of low-Btu waste in "fuel" for
     industrial furnaces.  This "blending up" to produce
     industrial furnace fuels is a form of "waste
     maximization," resulting in 2-3X the volume of waste
that
     was originally generated.  (See Chapter 4, p. 64 );

  -  Not only has the Agency failed to "list" as hazardous
     over 200,000 tons/year of refinery waste, but due to a
     lack of enforcement the Agency continually allows
     refineries to illegally dispose of "characteristically"
     hazardous wastes into non-hazardous waste landfills by
     allowing them to merely vent the benzene contained
     therein prior to disposal.  Such disposal invariably
     occurs without treating the remaining 26+ toxic and
     carcinogenic constituents typically contained in such
     waste (i.e., naphthalene, benzo(a) pyrene).  These
     constituents are the very ones which the Agency itself
     has deemed necessary to prohibit from disposal into
lined
     hazardous waste landfills (i.e., the Universal
Treatment
     Standards (UTS) for pre-treatment of wastes prior to
land
     disposal.)  Current regulations require proper
treatment
     of all underlying hazardous constituents before land
     disposal.   If RCRA's requirement to treat underlying
     hazardous constituents in wastes that previously tested
     positive for a hazardous characteristic (i.e.,
typically
     benzene) were being enforced, such large-scale land
     disposal would not be occurring.  However, neither the
     states nor EPA are enforcing this requirement and EPA
is
     effectively letting the states rewrite RCRA's hazardous
     waste regulations. (See Chapter 4, p. 68; Chapter 6);

  -  A prime example of this trend is depicted in Table ES-4
     (See p. 11).  Table ES-4 reveals that  the primary
method
     for disposal of petroleum tank bottoms is landfilling. 
     In fact, according to API's own Survey 51% of all
     petroleum tank bottoms (i.e., currently a
"non-hazardous
     waste") are landfilled as a "non-hazardous" waste.  At
     this point, most petroleum tank bottoms would qualify
as
     a "hazardous waste" only if they contain leachable
levels
     of one or more of 40 "characteristic" toxic
constituents. 
     Of these 40 constituents, benzene is the principle one
     that would be expected in crude tank bottoms.  However,
     due to benzene's volatility, it often evaporates, or is
     deliberately vented, ostensibly in the cleaning and
     separation process.   Is the Agency to believe that 51%
     of all petroleum tank bottoms do not flunk the
     "characteristic" leach test for benzene and are not
     artistically vented to remove benzene?  Moreover, does
     the Agency believe that the remaining 49% of petroleum
     tank bottoms that do qualify as hazardous (i.e., for
     leachable levels of benzene) do not contain any of the
     other Land Disposal Ban constituents (i.e., Universal
     Treatment Standard UTS constituents;  naphthalene,
     benzo(a) pyrene) for which a "characteristically"
     hazardous waste also must be treated?  Is the Agency
     even checking to determine the level of compliance with
     the requirements to treat all underlying hazardous
     constituents, or is this simply another example of how
     the Agency and its authorized state enforcement offices
     have yet again looked the other way just because the
     petroleum industry is involved?  Simply attaching the
     "recycling" label to the evaporation of benzene does
not
     alter the fundamental fact that this is nothing more
than
     disposal of toxic constituents at levels that would be
     prohibited into a hazardous waste landfill.  (See
Chapter
     4.)

  -  Many of the landfills receiving those so-called "non-
     hazardous" wastes are little more than unlined,
     unmonitored holes in the ground.  (See Chapter 6, p.
95);

   TABLE ES-4: TRENDS IN LANDFILLING AS "NON HAZARDOUS"
WASTE


Waste Description: Tank Bottoms
Volume Landfilled
70,200 (1992)
60,600 (1993)
54,800 (1994)
Landfilling Popularity*
1 (1992)
1 (1993)
1 (1994)

Waste Description: Contaminated Sediments
Volume Landfilled
38,700 (1992)
111,300 (1993)
96,000 (1994)
Landfilling Popularity*
1 (1992)
1 (1993)
1 (1994)

Waste Description: FCCU Catalyst
Volume Landfilled
82,200 (1992)
81,100 (1993)
78,100 (1994)
Landfilling Popularity*
1 (1992)
1 (1993)
1 (1994)

Waste Description: Hydroprocessing Catalyst
Volume Landfilled
6,200 (1992)
23,800 (1993)
12,398 (1994)
Landfilling Popularity*
2 (1992)
2 (1993)
2 (1994)

* "Popularity" indicates rank of coking for the given waste 
stream among all recycling, treatment disposal activities 
including: coker, crude unit, catalytic cracker, other in-
process recycle, cement kiln or industrial furnace fuel or 
feedstock, reclamation, regeneration, "other recycle", 
incineration, physical/chemical treatment, impoundments,
land
treatment, landfilling and "other" disposal.

Response:  In evaluating whether the use of oil-bearing
secondary materials in the quenching process provides a
beneficial contribution to the coke product or process, the
Agency notes that the main purpose of the petroleum coking
unit is to recover hydrocarbons from the oil contained in
the feedstocks for further refining.  Similarly, the main
purpose of using the secondary materials in the quenching
process is the energy-efficient recovery of hydrocarbon from
the residual oil in the oil-bearing secondary materials. 
Concerning the issue of net contribution to the coke product
(i.e., added energy value v. added ash content), the
petroleum industry maintains that the additional ash content
is insignificant and points to the amount of coke product
produced per cycle (ranging from about 400 to 800 tons) that
would be endangered if the ash content (as well as the VCM
level) contributed during the quenching process was
sufficient to lower the value or marketability of the coke
product.  The Agency notes that coke product produced using
hazardous secondary materials in the quenching process is
basically similar to coke produced without using secondary
materials in the quenching process.  Further, EPA notes that
anode-grade coke, the most high-valued coke with the most
stringent product specifications, can be made to
specification when secondary materials are utilized the
quenching  process.


During the coking operation, including the quench cycle,
there is recovery of hydrocarbon values from the oil-bearing
secondary materials, short- and middle-chain fractions that
are condensed and sent to refining processes to produce
high-value fuel products (consistent with the overall coking
operation).  In addition, there is some beneficial
contribution to the coke product in the form of carbon and
higher energy values (even though this may not be reflected
by an actual increase in market value), and the Agency also
notes that the coke product continues to meet the market-
driven specifications for the product, even for high-value
anode grade coke.  And, as with other side streams generated
by one process and used as feedstocks to other production
processes, this activity constitutes a link in the multi-
step chain of processing steps designed to recover as much
of the hydrocarbon value from the original crude oil
feedstock as possible.  Thus, the Agency concludes that the
oil-bearing hazardous secondary materials used in the
quenching process are considered, for regulatory purposes,
as part of an on-going production process and hence
classified as an activity not subject to RCRA jurisdiction.

EPA proposed not to list crude oil tank sediment.  The
Agency noted in the proposal that the risks from landfilling
this waste may be effectively controlled by the existing TC
regulations, and sought comment on this decision.  Upon
reevaluation, EPA has determined that the available
information provides sufficient basis to list crude oil
storage tank sediment as hazardous.  EPA is taking this
action because additional analyses of groundwater risks
indicate that potential risks are somewhat higher than the
results of the risk analysis conducted for the proposal. 
Further analyses indicate that the existing TC regulations
may not adequately control these risks as effectively as EPA
originally thought at the time of the proposed rule.  In
addition, the waste has moderately high PAH and oil content,
which may present additional risks under some circumstances.

The commenter's concerns regarding an alleged lack of
enforcement actions on the part of the Agency is beyond the
scope of this rulemaking. 

Comment 2h:  Vague Regulations:  Failing to Verify Recycling
Exemption Claims.

  -  States are making numerous incorrect recycling
     interpretations without the benefit of Federal
     oversight.  The exclusion for the recycling unit,
     various wastewater treatment exemptions, creative
     sampling, and other stained interpretations of the 90-
     day storage exclusion are all combining to give
     exemption-seekers free reign with the current system. 
     (See Chapter 4, p. 68).

CHAPTERS 5-6: FEDERAL AND STATE REGULATORY POLICIES CAUSING
THESE PROBLEMS

Overview

  -  There are several reasons behind the emergence of
     recycling as "the Wild West" of  hazardous waste
     management.  To be sure, many of these insults are the
     result of historical EPA policies and/or aggressive
     interpretations by State Officials that have gone
     unchecked by EPA.  However, 4 pending initiatives
     coupled with numerous Federal and state-level
     enforcement failures and unchecked regulatory
     interpretations threaten to take the current situation
     to a new level of chaos and "regulatory
     entrepreneurship."

The Proposed Petroleum Waste Rule-Recycling:  Exempting All
Refinery Coking And Recycling

  -  The very pollutants that RCRA's land disposal ban seeks
     to keep out of the groundwater and that the various CAA
     fuels programs seek to keep out of the air are merely
     being concentrated and repackaged in the form of
     petroleum coke and re-emitted to the air in the U.S.,
     and increasingly in developing countries.  The Proposed
     Petroleum Waste Listing would greatly expand this
     exclusion.  Recycling at petroleum refineries would be
     completely deregulated and even allowed to shield
     covert commercial facilities. Refinery-based recycling
     of hazardous wastes and coking would be expanded and
     allowed to emerge as major commercial competitors,
     despite the absence of permits, and/or substantive
     operating  standards to prevent environmental
     contamination.  (See Chapter 5, pp. 72-80.)

The Proposal Petroleum Rule:  Failure to List Additional
Wastes

  -  The recently Proposed Rule on Petroleum Waste would
     also fail to list as "hazardous" the petroleum storage
     tank bottoms and numerous other streams that
     consistently and routinely contain levels of toxic
     constituents that exceed those present in many of the
     wastes that are currently regulated as hazardous.  If
     such wastes were "listed", rather than simply muddle
     through as "characteristic" wastes, refiners could not
     simply vent the benzene with impunity and ignore the
     other 26 + UTS toxic constituents contained therein,
     and then landfill such oily mixtures into
"non-hazardous" 
     landfills.  Ironically, the consequence of
     this regulatory and enforcement failure is to continue
     to allow a higher concentration of petroleum-based UTS
     toxic constituents to be disposed of as "non-hazardous"
     wastes into unlined sanitary landfills than would even
     be allowed into lined, secure hazardous waste
     facilities.  (See Chapter 5, p. 81)

The Solid Waste Redefinition: Exempting All On-Site
Recycling

  -  The pending plan to revise RCRA's Solid Waste
     Definition would among other things completely
     deregulate all forms of hazardous waste recycling that
     occurred on the site of waste generation be they
     refineries, chemical plants, or whatever.  Such an
     action is without environmental justification and is
     completely without an objective basis.  Once again, EPA
     is being led by state programs that place expediency
     above protection.  (See Chapter 5, p. 89);

State Program Serendipity

  -  State recycling programs are literally and figuratively
     "all over the map" with contradictory, inconsistent and
     in some cases illegal decisions being made with
     virtually no federal input, oversight or control.  The
     normal feedback mechanism for many of these problems,
     state hazardous waste program directors, is operating
     at a significant disadvantage since many of these
     programs are under the control of chief executives that
     have a "deregulation for deregulation's sake" approach
     to the environment.  (See Chapter 6);

  -  Louisiana is allowing refineries to operate
un-permitted, 
     commercial recycling facilities, and the
     U.S. EPA is nowhere to be found.  These facilities are
     operating under the cover of the refinery without
     satisfying many of environmental safeguards that apply
     to other commercial facilities.  (See Chapter 3);

  -  Four other states are similarly allowing commercial
     recycling operations to operate on refinery property as
     exempt unpermitted facilities.  (See Chapter 3);

  -  Texas has no limit on the amount of Total Petroleum
     Hydrocarbon limit (TPH) that can be placed into "non-
     hazardous" Class I industrial waste landfills in the
     state.  These so-called "non-hazardous" wastes are
     "non-hazardous" in name only and in most cases contain
     higher levels of toxic constituents than would be
     allowed in a fully permitted and lined hazardous waste
     landfill.  This contrasts with significantly lower TPH
     disposal levels being proposed even in the Developing
     World (See further discussion below).  These "Class I"
     industrial landfills have only two mandatory design and
     operating requirements: location and construction
     inspections. Every other substantive control is
     discretionary including: liners, leachate collection,
     air emission controls, storm water run-on/run-off
     controls, leak detection, waste testing and even
     groundwater monitoring. Thus a refinery hazardous waste
     that has been rendered "non-hazardous" by merely
     venting benzene contained therein, which otherwise
     consists of 100,000 ppm benzo(a)pyrene and other UTS
     constituents and up to %100 TPH, can be dumped into an
     unlined, unmonitored, hole in the ground in most of the
     fifty states, including Texas.  (See Chapter 6);

  -  This example further illustrates how waste generators
     and state agencies are exploiting the vast disparity
     between RCRA facility requirements for hazardous waste
     and "non-hazardous" waste.  If there were at least a
     standard in place that established a percentage-level
     limit for TPH or for UTS constituents and/or some
     minimal design, liner and detection standards for so-
     called "non-hazardous" landfills, then the double
     standard of protection between "hazardous" and "non-
     hazardous" disposal facilities would not be as severe. 
     How can the Agency continue to ignore such high levels
     of toxic metals and/or carcinogenic constituents being
     disposed of into typically unlined, unmonitored "non-
     hazardous" landfills, when it has established
     exceedingly stringent levels for these same
     constituents when disposed of into state-of-the-art
     lined and monitored hazardous waste landfills?

  -  The State "safety net" standards for these "non-
     hazardous" waste facilities are largely discretionary
     and/or non-existent (See Chapter 6, p. 95.)

Response: The Agency disagrees with the commenter's
assertion that as a result of today's rulemaking, "
recycling at petroleum refineries would be completely
deregulated and even allowed to shield covert commercial
facilities."  Today's final rule provides a limited
exclusion from regulation as solid waste for oil-bearing
secondary materials generated by the petroleum refining
sector (SIC 2911) and inserted into the petroleum refining
process, including the coker, both conventional coking and
quench coking.  

EPA clarifies that the Agency is not including within the
scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911). The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector. 
Oil-bearing secondary materials originating from non-
refinery sectors have the potential to be more waste-like
and thus do not warrant an exclusion, especially if their
ultimate use is in the quenching process.

EPA further clarifies that the exclusion from the definition
of solid waste for oil-bearing secondary materials returned
to the refining process only extends to materials that are
actually re-inserted into the refinery process.  In cases
where oil-bearing secondary materials are reclaimed prior to
re-insertion, any residuals that may result from reclamation
which are not returned to the refinery process, and
therefore may be discarded, retain the original hazardous
waste listing.  The Agency modified the proposed listing
description for F037 to include any residuals that result
from the processing of listed hazardous wastes that will be
disposed.  The Agency decided to include this clarification
within the regulatory language so that the rules are
explicit and to ensure that there is a requirement to manage
residuals from the reclamation of hazardous secondary
materials as hazardous wastes.

The Agency also is requiring that the materials excluded
under this provision of today's rule be returned directly to
a refinery for insertion.  While this is not an issue if
materials are recycled on site, EPA has concerns about
situations where these materials are generated at one
refinery for insertion into another, but are processed at an
intermediate, non-refinery facility.  Such materials should
not end up at an intermediate non-refinery facility without
an accompanying hazardous waste manifest.  In cases where
materials generated at one petroleum refinery are to be
recycled at another refinery, to meet the conditions of the
exclusion the materials must be located either at the
generating refinery, at the receiving refinery, or must
otherwise be in transit between the two facilities.  This is
consistent with the argument that the exclusion is provided
on the basis that the secondary materials are being used
within the realm of on-going production in the petroleum
refining sector.

As the commenter points out, EPA proposed not to list crude
oil tank sediment.  The Agency noted in the proposal that
the risks from landfilling this waste may be effectively
controlled by the existing TC regulations, and sought
comment on this decision.  Upon reevaluation, EPA has
determined that the available information provides
sufficient basis to list crude oil storage tank sediment as
hazardous.  EPA is taking this action because additional
analyses of groundwater risks indicate that potential risks
are somewhat higher than the results of the risk analysis
conducted for the proposal.  Further analyses indicate that
the existing TC regulations may not adequately control these
risks as effectively as EPA originally thought at the time
of the proposed rule.  In addition, the waste has moderately
high PAH and oil content, which may present additional risks
under some circumstances.

The commenter's concerns regarding the Agency's on-going
evaluation of the hazardous waste recycling regulations are
beyond the scope of this rulemaking.

The Agency cannot respond to the commenter's claims of
"state program serendipity" within this forum.  Authorized
states may implement and enforce the RCRA program elements
for which they are authorized within their state boundaries.

EPA does not approve facility permits in authorized states. 
Concerns regarding individual facility operations and/or the
status of particular facility's permit should be raised to
the appropriate authority in the applicable state.

Comment 2i:   CHAPTER 7: OTHER CONSEQUENCES OF RECYCLING
LOOPHOLES

Overview

Unless the trends discussed above are reversed, the
repackaging of pollution and their subsequent placement into
increasingly vulnerable situations such as urban air or
unlined landfills will continue.  In addition, they will
result in the following:

  -  The shifting of pollutants back to the land and the
     air, and from our shores to those of unsuspecting or
     unprepared nations;

  -  Undermine the development of technologies (i.e.,
     gasification, desorption) both within the petroleum
     industry and at commercial facilities to properly
     reclaim hydrocarbon value, while isolating toxic
     constituents;

  -  The gasification technologies that have been developed
     by U.S. petroleum firms are being used in Italy and
     elsewhere, but not in the U.S.  Instead our industry
     continues to produce ever increasing volumes of ever
     more heavily contaminated petroleum coke;

  -  It will increase the cost of treatment by virtue of
     regulating only a "boutique" volume of wastes, rather
     than all oily wastes that are truly hazardous;

  -  Undermine the Administration's four year effort under
     the "Combustion Strategy" by establishing a double
     standard between exempt onsite refinery coking and
     recycling  and offsite commercial recyclers.

Double Standard of Protection

  -  As a result of policies that are under consideration
     and current enforcement practices, a double standard of
     protection is being established: stringent  controls
     for commercial facilities; total exemptions for on-site
     facilities.  (See Chapter 3, p, 51-63; Chapter 5, p.
     88-89.)

Undermining The Clean Air Act

  -  The complimentary controls that the Agency believes are
     being imposed under the Clean Air Act to fill RCRA gaps
     (i.e., benzene NESHAP) are not triggered in many cases
     due to a variety of "small source" exclusions.  
     Moreover, it is ironic that as a nation we are spending
     millions of dollars to produce the cleanest motor fuels
     that technology can buy, but at the same time Agency
     policies are encouraging the industry to channel its
     pollutants into petroleum coke and produce an ever
     increasing volume of the world's dirtiest fuel.

Losing Our Technological, International Edge

  -  As a result of the "laissez faire" attitude that has
     been allowed to govern the implementation and
     enforcement of RCRA's recycling provisions, we are not
     only losing environmental control over the most
     significant emerging sector in the hazardous waste
     industry, but we are losing our competitive edge in
     technologies as well.  (See Chapter 7);  

  -  At present, three separate refineries in Italy are
     installing clean gasification technology, technology
     that was developed in the U.S. by Texaco and other
     petroleum firms!  When refineries in Italy begin to
     install advanced non-polluting petroleum recycling
     technology, such as gasification, as an alternative to
     coking at a faster rate than we are in the United
     States, something in seriously wrong.   Despite
     domestically developing this technology, there is not a
     single refinery in the U.S. that has or is
     contemplating use of gasification as a standard waste
     management practice.  (See Chapter 7, pp. 100-103);

  -  When countries such as Venezuela establish total
     petroleum hydrocarbon (TPH) disposal levels that are
     orders of magnitude more stringent than those being
     employed in the U.S. (i.e., 15 ppm, versus no limit in
     Texas), something is seriously wrong.  It is ironic
     that petroleum wastes that would be tightly regulated
     in Venezuela (i.e., wastes with 10,000 ppm TPH) would
     be exempt from all Federal and most state-level
     regulation in the United States.  (See Chapter 7, pp.
     102-103).

Recycling of all types, whether done onsite or offsite,
commercially or non-commercially must be done properly and
must live up to its implied promise: the reclamation of  a
resource, not the reintroduction of toxics into the
environment.  Section III provides additional discussion of
the key findings identified above.

Response:  The Agency disagrees with the commenter's
assertions.  Today's final rule provides a limited exclusion
from regulation as solid waste for oil-bearing secondary
materials generated by the petroleum refining sector (SIC
2911) and inserted into the petroleum refining process,
including the coker.  

However, the Agency is further investigating the scope of
petroleum industry gasification operations and is
considering whether to extend the exclusions promulgated in
this rule to include gasification operations involving
petroleum industry secondary materials.  
  
EPA clarifies that the Agency is not including within the
scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911).  The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector.

EPA further clarifies that the exclusion from the definition
of solid waste for oil-bearing secondary materials returned
to the refining process only extends to materials that are
actually re-inserted into the refinery process.  In cases
where oil-bearing secondary materials are reclaimed prior to
re-insertion, any residuals that may result from reclamation
which are not returned to the refinery process, and
therefore may be discarded, retain the original hazardous
waste listing.  The Agency modified the proposed listing
description for F037 to include any residuals that result
from the processing of listed hazardous wastes that will be
disposed.  The Agency decided to include this clarification
within the regulatory language so that the rules are
explicit and to ensure that there is a requirement to manage
residuals from the reclamation of hazardous secondary
materials as hazardous wastes.

The Agency also is requiring that the materials excluded
under this provision of today's rule be returned directly to
a refinery for insertion.  While this is not an issue if
materials are recycled on site, EPA has concerns about
situations where these materials are generated at one
refinery for insertion into another, but are processed at an
intermediate, non-refinery facility.  In cases where
materials generated at one petroleum refinery are to be
recycled at another refinery, EPA has added to the
regulatory text of the exclusion that these secondary
materials must be sent "directly to" another petroleum
refinery.  This is consistent with the argument that the
exclusion is provided on the basis that the secondary
materials are being used within the realm of on-going
production in the petroleum refining sector.


Comment 2j:  TOTAL DEREGULATION OF THE PETROLEUM INDUSTRY

 A Sea of Exemptions

Table ES-5 reveals the extent to which the petroleum
industry is already exempt from most of RCRA's hazardous
waste management requirements, and is on the verge of  total
deregulation.  Table ES-5 shows the many exemptions that
already apply for petroleum waste generally and for other
wastes when "recycled".  Attempts to quantify the volumes of
wastes exempted are difficult to estimate precisely. 
However, of the 4,800,000+ tons of petroleum waste produced
per year, less than 2.0% is reclaimed for its petroleum
feedstock value at facilities that are permitted to ensure
proper protection during the process.  This and other issues
related to the "exempt status" of the petroleum industry
under RCRA and all environmental laws are more fully
discussed in a recent Report by the Friends of the Earth.

An Ocean of Problems

What makes the current and pending petroleum exemptions
contemplated by the Administration all the more puzzling is
the fact that few industries are as undeserving of special
regulatory treatment as the oil industry.  Aside from the
myriad of historical Superfund NPL sites and RCRA corrective
actions at refinery and other petroleum facilities currently
operating refinery, marketing and transportation facilities
continue to funnel pollutants back into the environment.

In 1994 the U.S. Environmental Protection Agency (EPA) and
the American Petroleum Institute (API) developed a survey to
compile information on releases to groundwater only from
petroleum storage facilities, their causes, and efforts made
in recent years by these facilities to prevent these
releases.  As such this survey only examines contamination
from the passive activity of storage, not refining or waste
management.  Approximately 85 percent or 299 of the 350 API
member company facilities surveyed responded, an excellent
response rate.  The Survey provides useful data on the
pervasiveness of groundwater contamination at petroleum
storage facilities and its migration to adjacent properties,
and quantifies the failure to use equipment and practices to
prevent and detect groundwater contamination.  
TABLE ES-5: Compendium of Exemptions from Hazardous Waste
Regulations for Petroleum Industry Coking and Recycling
Operations 

Description: 1) General Exemption for Coking of Petroleum
Wastes:
excludes various listed waste and any characteristically
hazardous coke by-product wastes when these materials
"...are
recycled to coke ovens, to the tar recovery process, or as a
feedstock to produce coal tar..."
Reference: 40 CFR 261.4(a)(10)

Description: 2)  Exemption for "Recovered Oil" Inserted to
Refinery Process: exempts any petroleum waste (i.e. defined
as
"Recovered Oil") from "...refining, exploration and
production
that is inserted into the refining process with normal
streams....  Recovered Oil does not include listed hazardous
wastes, does include oil recovered from such wastes."
Reference: 40 CFR 261.4(a)(12)

Description: 3)   General Exemption for Petroleum
Exploration and
Production (Bevill Exemption): exempts all "...drilling
fluids,
produced waters, and other wastes associated with the
exploration, development, or production of crude oil,
natural gas
or geothermal energy."
Reference: 40 CFR 261.4(b)(5)

Description: 4)  Contaminated Groundwater Re-Injection
Exemption:
exemption for re-injection of groundwater that exhibits a
hazardous waste characteristic when it being used to recover
free
phase hydrocarbon that has been previously released to soil
or
groundwater. 
Reference: 40 CFR 261.4(b)(11)

Description: 5)  Exemption for Hazardous Waste Fuels
Reinsertion:
exempts "hazardous waste fuels produced from oil-bearing
hazardous wastes from petroleum refining, production,
transportation practices, or produced from oil reclaimed
from
hazardous waste where such hazardous wastes are reintroduced
into
a refinery process......so long as the fuel meets the used
oil
specification ..."
Reference: 40 CFR 261.6(a)(3)(iv)(A)

Description: 6) Exemption for Hazardous Waste Fuels Burning:
exemption is same as above except that it allows such wastes
to
be burned as a fuel, rather than reinserted to the
production
process 
Reference: 40 CFR 261.6(a)(3)(iv)(C)

Description: 7) Exemption for Coke Product : exempts the
actual
coke product from all applicable hazardous waste regulations
provided it does not exhibit a hazardous waste
characteristic
Reference: 40 CFR 261.6(a)(3)(v)

Description: 8)   Exemption for Used Oil: exempts any used
oil
that is recycled for any purpose,  including burning, so
long as
it is hazardous only by virtue that it exhibits a hazardous
waste
characteristic
Reference: 40 CFR 261.6(a)(4)

Description: 9)   General Exemption for Recycling Unit: "the
recycling process itself is exempt from regulation except as
provided in 261.6(d)."  This provision further excludes from
regulation any recovery unit used to "recycle" refinery
wastes
that may still be subject to RCRA.  The provision attaches 3
record keeping requirements, but no universal standards to
control releases.  This exclusion is not limited to refinery
or
oily wastes.
Reference: 40 CFR 261.6(c)(1)

Description: 10)  Exemption for Insertion of Any Hazardous
Waste
Into Refinery Operation: Pending proposal to expand current
exemptions to allow any hazardous waste to be inserted into
a
refinery process.  See Section V below for further
discussion.
Reference: 60 FR 57750 (November 13, 1995) Proposed Rule

Description: 11)  Exemption for Underground Storage Tank
Wastes
Cleanups: Exempts all characteristically hazardous waste
from the
cleanup of an underground storage tank release from RCRA
standards.
Reference: 40 CFR 261.4(b)(10)


Description: 12)  Exemption for All Petroleum Cleanup Wastes
From
RCRA: Recent policy determination summary exempts all
Petroleum
cleanups from RCRA Land Disposal Ban Standards applicable to
all
other hazardous waste.
Reference: OSW Memo, (January 15, 1997)  Attachment G.


According to the Survey report, the percentage of petroleum
storage facilities with confirmed groundwater contamination
is very high.  Eighty-five percent (85%) of all refineries
have known groundwater contamination (See Table ES-6). 
Forty-four percent (44%) of such facilities have had such
contamination migrate off their site.

TABLE ES-6: Percent of Petroleum Storage Facilities with
Groundwater Contamination and Off-site Contamination

                      Groundwater         Off-Site
Type of Facility      Contamination       Contamination

Refining              85%                 44%
Marketing             68%                 35%
Transportation        10%                 27%


Response: The Agency disagrees with the commenter's
assertion that the petroleum industry is already exempt from
most of the RCRA hazardous waste management requirements and
is on the verge of "total deregulation."  The exemptions
listed in Table ES-5 are not the subject of this rulemaking
and some of the regulatory exemptions listed by the
commenter are not specific to the petroleum refining
industry.  For example, the first entry in Table ES-5
applies to recycling the of hazardous wastes and coke by-
products in coke ovens in the iron and steel industry, where
the coke is produced in the iron manufacturing process from
coal.  In addition, the last entry in the table refers to an
OSW memorandum to RCRA/CERCLA Senior Policy Managers in the
EPA Regional Offices outlining the appropriate uses of site-
specific land disposal restriction treatability variances. 
The memorandum explains that such variances are approved on
a case-by-case basis in consideration of site-specific and
waste-specific circumstances and conditions.  The memorandum
makes no mention of the petroleum refining industry or
specific refinery waste streams.

In response to the commenter's issue regarding petroleum
storage facilities with groundwater contamination, the
Agency does not have information regarding the specific
sources of such contamination, the characterization and
extent of the releases, or information on whether the
contamination is the result of recent releases of hazardous
wastes or the result of historical, pre-RCRA, releases. 
Therefore, even if the claims of extensive groundwater
contamination were determined to fall within the scope of
the today's rulemaking, the Agency does not have sufficient
information to respond to the commenter's claims.

The Agency notes that under the conditions of today's
limited exclusion from regulation as solid waste for oil-
bearing secondary materials generated by the petroleum
refining sector and inserted into the refinery process,
refineries are precluded from storing these materials on the
land and from accumulating the materials speculatively.  In
addition, information available to the Agency indicates that
the management of oil-bearing secondary materials at
petroleum refineries prior to insertion into the refinery
process occurs in tanks designed, constructed, operated,
maintained, and inspected in accordance with the American
National Standard Institute (ANSI) standards.  The Agency
believes that these standards are sufficient to ensure that
secondary materials are managed in an environmentally
protective manner.

Finally, EPA notes that many of the exemptions, and the
proposed exclusions, cover a situation on the margins of
EPA's legal authority: sequential recovery of hydrocarbon
values within the generating industry conducted (given the
condition on no land placement) so as not to become part of
the waste disposal problem.  Thus, limits on jurisdiction
influenced the Agency's choices.  (As explained in the
preamble, however, EPA finds explicitly that the exclusion
for quench coking is not required as a matter of law, but
rather, is a permissible and reasonable exercise of EPA's
authority to interpret the ambiguous statutory term
"discarded" in the context of a recovery operation occurring
within the generating industry.)

Comment 2k:  CONCLUSIONS

Reversing 15 Years Of Progress
     
There is a lot to like about recycling and we believe it is
the right approach to the management of petroleum wastes. 
When done right it yields two benefits: reclaimed resources
and no release of toxins to air, land, groundwater or
surface water.  But frankly, doing a little of the right
thing does not give you a license to do everything else
wrong.  In answer to market and environmental demands and
through the development of better technologies, the refinery
industry has provided cleaner burning, higher quality fuels
from increasingly heavier, dirtier crudes.  However, simply
because you are able to direct a part of the waste matrix in
the right direction, should not allow you to direct the
majority of the toxics in the wrong direction.  If there are
no rules other than "recycling activities are exempt," then
the lowest cost rule will apply, not what is best for the
environment.  The easiest, cheapest thing to do is to
reclaim what's easy and bury the rest in landfills and dirty
fossil fuels.  Recycling is not benign, and must be viewed
as critically as any waste treatment activity such as
disposal, destruction or landfilling.  Where the toxics go
must take precedence over what is reclaimed.

In 10 years time, from 1984-1994, this Nation managed one of
the most swift and dramatic transformations in environmental
protection that any nation has witnessed. In 10 years, we
went from being a nation of dumpers to a nation of
technology; from a spectator on the world stage to a leader
in technology-based control of hazardous waste.  However, at
present we are neither moving forward nor securing these
gains.  Rather,  we are losing ground and allowing
uncontrolled land disposal and air emissions to reverse the
progress of the last 10 years. 

This reversal of course is due in no small part to EPA's
current preoccupation with granting recycling exemptions,
rather than ensuring equal environmental protection from
recycling operations.  Perhaps the most poignant indicator
of where we stand is the sorry fact that U.S. petroleum
firms have developed clean recycling technology such as
gasification for oily waste recycling, and are selling them
everywhere in the world, but the U.S.  Italy is actually
surpassing us in terms of environmental management of
refinery waste.  Not a single such unit is in commercial or
routine production use in the U.S.  Instead, our industry
continues to produce ever increasing volumes of coke --- the
world's dirtiest fuel, that contains an ever increasing
volume of toxic metals and carcinogens.  While the rest of
the world is using U.S. technology to make refinery waste
toxics less available to the environment, our industry is
producing more and more coke, the burning of which makes
toxics more available to the environment.  Moreover, they
are doing so in the name of "recycling," and with the full
blessing and active encouragement of our "environmental
protection" regulations.  Coking has become the unregulated
pollution sink for all the refining industry's unwanted
toxics, and pending EPA policies promise more of the same.

"Reinvention" Must Mean More Protection, Not Just More
Exemptions

The Administration has undertaken numerous programs to
respond to purported claims of over-regulation by
manufacturing industries: the Common Sense Initiative (CSI),
and Project XL to name two.  Moreover, the current Solid
Waste Definition proposal represents yet another carte
blanche surrender of jurisdiction with no legal impetus or
environmental justification.  This effort again emphasizes
purported claims of regulatory excess with relatively little
or no attention to recycling's dark side; --- the
uncontrolled release of toxic constituents in the pursuit of
marginal or non-existent resource values (i.e., coke with a
current market value of $0.) 

To date, these type of "exemption expansion" activities have
almost exclusively characterized the Administration's
"reinvention" efforts on the environmental front.  The
Administration has a fundamental decision to make: will it
continue the transition toward treatment and technology, or
will it reverse the unprecedented progress of the last
decade and allow "recycling", of all things, to become the
new means for media shifting of pollutants?  Is it going to
allow "reinventing government" to translate into a
dismantling of national controls, in lieu of a patchwork
quilt system of State controls that gave rise to current
problems, or will "reinventing government" mean rectifying
the loopholes that are making "recycling" the most reckless
area of hazardous waste management?  If ever there were an
area that cried out for federal leadership, or "reinvention"
this is it.  However, "reinvention" must mean more than
simply throwing exemptions at the hazardous waste generators
and allowing them to attach a "recycling" label to anything
and everything that they so desire, irrespective of the
environmental consequences or toxics loading.

The progress that has taken 15 years to achieve under RCRA,
and the strides that the CAA Clean Fuels programs are
beginning to make will be undermined if national recycling
policy continues to drift and states continue to march to 50
different drummers.  Moreover, the pending regulatory
initiatives at the Agency promise to take a bad situation
and make it worse.

True Recycling Technology Will Be Destroyed By Present
Policy

Choosing coking and fuel blending over separation and
gasification as a recycling alternative destroys incentives
to create true low cost recycling technologies to such an
extent that technology-based businesses are economically
prohibited from evolving.  The refining industry may wince
at the thought of having to use such technologies due to
short term additional costs, but they are the ones that will
drive those costs down through economy of scale processing
and evolution of capability.  The industry will also benefit
the most in the long term from improved public perception,
avoidance of future remediation costs and international
technology transfer.  We need a system that encourages
separation and gasification, not dilution; the use of
engineers, not lawyers.

Recycling; But Not At Any Cost And Not In Name Only

In conclusion, everyone wants to be a recycler; if not in
reality, at least in name for purposes of exempting
themselves from substantive environmental standards.  In
addition, State programs are all over the map making
incorrect, un-informed and in some cases illegal
determinations regarding recycling operations.  While all of
this is occurring, neither the Office of Solid Waste nor the
Enforcement Office appear to be focusing on the
environmental and marketplace disparity being created by
cavalier recycling operations.

Good recycling is and should be its own best incentive. 
While some encouragement of recycling practices is
understandable, we cannot lose sight of the fact that
hazardous wastes are like water running downhill, always
following the path of least control and least cost.  If the
Agency seeks to establish an HOV lane for recycling, that
may be appropriate.  However it does not need to
simultaneously eliminate the "speed limit" for these
practices.  A two-tiered system that virtually exempts all
onsite recycling from substantive controls, but that forces
commercial facilities to comply with stringent standards is
utterly unjustified and will turn back the clock on fifteen
years of unprecedented progress in protecting the public
from uncontrolled hazardous waste management practices.

This uncontrolled situation with recycling should come as no
surprise to the Agency, which historically has always aired
on the side of exempting, rather than regulating recycling. 
Protection has always taken a back seat to promotion.  So
too it is with the pending regulatory initiatives at the
Agency, which appear to be almost exclusively focused on
accelerating the pace of exemption and deregulation, with
virtually no attention to the environmental or equity
consequences of such action.  If the NPL and the Agency's
recent experience with other notorious recycling situations
are any guide, recycling must be held to the same
substantive standards, even if that may be through an
alternative authorization process.

The signals that have been sent by the 4 pending policy
initiatives are already taking root in the marketplace in
the form of regulatory liberties and cavalier actions that
are virtually devoid of environmental consideration.  For so
much hazardous wastes to be managed in such an uncontrolled
manner should be impermissible.  For this to be occurring in
the name of recycling is indeed intolerable.  We urge the
Agency to not only re-examine the 4 pending policy
initiatives, but to refocus its enforcement and regulatory
efforts to ensure that tangible environmental protections
are not sacrificed in the name of intangible and other
ethereal notions of recycling's benefits.

RECOMMENDATIONS

We would recommend that the following actions be taken: 

  -  Place these comments into the Docket of both the Notice
     of Data Availability on The Proposed Petroleum Waste
     listing/recycling exclusion proposed rule and the
Docket
     of the Solid Waste Definition revisions, (62 FR 16747;
     4-8-97);

  -  Initiate a "Sham recycling" enforcement investigation
of
     the practice of disposing of listed hazardous wastes
into
     petroleum coke under the guise of "quench" water;

  -  Reexamine both the Petroleum Waste Listing Proposed
Rule
     and the Solid Waste Definition Initiative for their
     potential to cloak unpermitted commercial operations
     under the guise of on-site recycling operations.  This
     mode of operation is becoming increasingly prominent
even
     under the current exclusions, and would only be
     exacerbated by further expansions such as are included
in
     these two initiatives;

  -  Re-propose the Petroleum Waste Listing to eliminate: 
the
     recycling exclusions contained therein, particularly
the
     provisions that allow unqualified reinsertion of wastes
     into the coking and refining process, and the failure
to
     list various other petroleum streams, particularly
crude
     oil tank bottoms;

  -  Prohibit the use of refinery coking or other recycling
     exemptions for any commercial operation that seeks to
     establish itself in such a manner; 

  -  Carefully reexamine the proposed expansion of the
     petroleum coke exclusion and its impacts on the
     environment as well as legitimate commercial recyclers.

     Is petroleum coke really true legitimate energy
recovery,
     or is it simply unregulated waste disposal and waste
     export to the Developing World?;

  -  Investigate Region VII and other EPA Regions for the
     extent to which the "blending up" prohibition on low
Btu
     waste are being enforced or even inspected for;

  -  Direct EPA Region VI to investigate the legality of
     LADEQ's recycling decisions regarding the Shell, Norco
     facilities's acceptance of listed hazardous waste for
     commercial processing without a permit;

  -  Direct EPA Regions to investigate the extent to which
     other current RCRA exclusions of being used/abused by
on-
     site operations to cloak unpermitted commercial waste
     management operations.

  -  Investigate how "characteristically" hazardous refinery
     wastes are being tested, and whether benzene is being
     illegally vented, or diluted, in order to avoid
treatment
     requirements.

  -  Investigate the other forms of "gaming" to avoid
     preventive waste management controls such as "point-of-
     generation" determinations and sampling techniques. 
     (SEA, L0006, L0010)


Response: The Agency thanks the commenter for its comments
and recommendations.  The Agency notes that EPA initiated
extensive dialogue on the issues raised by the commenter
with the commenter and with representatives of the petroleum
refining industry.

As mentioned above, EPA disagrees with many of the
commenter's assertions regarding the legitimacy of today's
rulemaking and the potential consequences of today's
rulemaking.  Although the Agency notes that EPA has limited
the exclusions, based upon comment and information provided
by commenters and on additional analyses conducted by the
Agency.  The final rule provides a limited exclusion from
regulation as solid waste for oil-bearing secondary
materials generated by the petroleum refining sector and
returned to the refinery process.

The Agency is finalizing the exclusion with several
conditions.  The secondary materials may not be placed on
the land prior to insertion into the refinery process and
may not be accumulated speculatively.  In addition, the coke
product resulting from the use of secondary materials in the
refinery process must not exhibit any of the hazardous waste
characteristics.

As mentioned several times above, data available to Agency
indicate that hydrocarbons are recovered from oil-bearing
secondary materials when these materials are fed to the
coker, including when these materials are fed into the coker
with the quench cycle.  In addition, data indicate that
there are recoverable levels of oil in sludges generated by
petroleum refineries and typically fed into the coker.  The
metals levels in sludges typically fed into the coker (e.g.,
sludges bearing hazardous waste codes K048-K052) are, for
the most part, comparable to the concentration of metals in
normal refinery feedstocks.  Although the levels of lead and
chromium in these sludges may be higher than normal
petroleum feedstocks, the concentrations of these two metals
in petroleum sludges are expected to decrease due to changes
in the petroleum production process.   The NESHAPS standards
promulgated under the Clean Air Act will result in chromium
no longer being used in cooling towers.  Therefore, the
principal source of chromium contaminants in the production
process will be deleted.  Lead levels in petroleum sludges
will continue to decline due to the phasing out of leaded
gasoline as a product line.  Finally, analyses conducted by
EPA confirm that the final coke product is basically
unchanged by the use of hazardous oil-bearing secondary
materials in the coking process. 

EPA clarifies that the Agency is not including within the
scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911).  The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the mange of wastes (e.g., hazardous
waste recycling) from that non-refinery sector.  

EPA further clarifies that the exclusion from the definition
of solid waste for oil-bearing secondary materials returned
to the refining process only extends to materials that are
actually re-inserted into the refinery process.  In cases
where oil-bearing secondary materials are reclaimed prior to
re-insertion, any residuals that may result from reclamation
which are not returned to the refinery process, and
therefore may be discarded, remain listed hazardous wastes. 
The Agency modified the proposed listing description for
F037 to include any residuals that result from the
processing of listed hazardous wastes that will be disposed.

The Agency decided to include this clarification within the
regulatory language so that the rules are explicit and to
ensure that there is a requirement to manage residuals from
the reclamation of hazardous secondary materials as
hazardous wastes.
 
The Agency notes that EPA is further investigating the scope
of the petroleum industry gasification operations and is
considering whether to extend the exclusions promulgated in
today's rule to include the reuse of secondary materials in
gasification operations.

The commenter's concerns regarding the investigation of EPA
Regional and state agency enforcement decisions are beyond
the scope of this rulemaking.  The Agency notes that
authorized states may implement and enforce the RCRA program
elements for which they are authorized within their state
boundaries.  EPA does not approve facility permits in
authorized states.  Concerns regarding individual facility
operations and/or the status of any particular facility's
permit should be raised to the appropriate authority in the
applicable state.

The commenter's request that EPA investigate other forms of
"gaming" to avoid preventive waste management controls is
beyond the scope of today's rulemaking.


II.b.2.c. Quench Coking

Comment 1: The commenter disagrees with EPA's proposal to
allow reinsertion of "any" oily waste material into any part
of the refining process, likening the proposal to a "Bevill
II" exemption for refineries.  The commenter points out that
allowing insertion of wastes into the coker,  without regard
to oil content, will assure that the coker becomes a
limitless "black hole" for refinery waste.  The commenter
contends that the exclusion will: (1) establish a regulatory
override to the Sham Recycling Criteria where coking is
involved; (2) foster the production of more of the world's
dirtiest fuel by allowing yet additional toxic metals, PNAs,
and other toxics to be deposited onto the coke without
treatment; and (3) deal a deadly blow to true recycling
technologies such as thermal desorption, flexi-coking, and
gasification, which produce clean products for direct reuse
or reuse within the refinery, rather than create a product
with no real market value.  (SEA, 00015, L0006, L0010)

Response: In today's final rulemaking, EPA is promulgating
an exclusion from the definition of solid waste for oil-
bearing secondary materials generated within the petroleum
refining sector and returned to the refining process.  As
finalized, the exclusion from the definition of solid waste
for oil-bearing residuals from specified petroleum refining
sources is expanded to allow the use or reuse of a broader
array of residuals from petroleum refining operations by
inserting the materials into any part of the refinery
process, including the coking process.  The Agency notes
that the exclusion is conditioned on there being no storage
or placement of the secondary materials on the land and no
speculative accumulation.  In addition, the recycling of
oil-bearing secondary materials cannot result in coke
products that exhibit any of the characteristics of
hazardous waste.

The Agency clarifies that the exclusion, as promulgated, is
limited to oil-bearing secondary materials generated within
the petroleum refining sector (i.e., SIC 2911) and inserted
into the petroleum refining process.  In addition, in the
final rule, EPA clarifies that the exclusion for oil-bearing
secondary materials returned to the refining process only
extends to the materials actually re-inserted into the
refinery process.  In cases where oil-bearing secondary
materials are reclaimed prior to re-insertion, any residuals
that may result from the reclamation process and that are
not returned to the refinery process retain the hazardous
waste listing and must be managed as hazardous wastes.  In
the final rule, the Agency is modifying the descriptions for
the F037 waste code to include any residuals from the
processing of listed (refinery) hazardous wastes.

After considering all data and information made available to
the Agency, EPA concluded that the main purpose of the
petroleum coking unit is to recover hydrocarbons from the
oil contained in the feedstocks for further refining. 
Similarly, the main purpose of using the secondary materials
in the coke quenching process is the energy-efficient
recovery of hydrocarbon from the residual oil in the oil-
bearing secondary materials.  Conventional and quench coking
recover light fraction hydrocarbons with equal efficiency. 
The Agency also concludes, based upon available data, that
coke product produced using hazardous secondary materials in
the quenching process is basically similar to coke produced
without using secondary materials in the quenching process. 
Further, EPA notes that the making of anode-grade coke, the
most high-valued coke with the most stringent product
specifications, is likewise able to meet the product
specifications while using these secondary materials in the
quenching process.  

In considering whether the fact that the coke product
produced using secondary materials in the quenching process
continues to meet the product specifications (and, in fact,
demonstrates little change in the levels of contaminants
compared with coke produced without hazardous secondary
materials) is simply a result of dilution, the Agency
acknowledges that such dilution does occur.  However, there
are several other considerations.  For example, the primary
product of the petroleum coking process is the light
hydrocarbon fraction recovered for use as feedstock in the
production of high-value fuel products, with the coke
product being a co-product of the coking process.  The
Agency is convinced that such recovery occurs when oil-
bearing secondary materials are used in the quenching
process.  Given that the recovered hydrocarbon is the
primary product of using the secondary materials in the
quenching process, the simple fact that the coke product
(i.e., the co-product) continues to meet the applicable
product specifications and shows no appreciable increase in
risk carries more weight in the Agency's evaluation.  In
other words, demonstrating hydrocarbon recovery is the key
test in determining whether the hazardous secondary
materials actually serve a useful role in the overall coking
operation, rather than demonstrating a net contribution to
the coke (as opposed to no degradation of the coke). 
Acknowledging that there is a potential for some degradation
of the coke product, depending on the constituent make-up of
the particular secondary materials used in the quenching
process, the Agency believes that economic forces, driven by
product specifications and competition for markets, will
serve to ensure that the quenching process is not simply a
means of indiscriminately disposing of hazardous wastes. 
However, in cases where there is sufficient degradation of
the product (or co-product) such that it no longer meets
product specifications or otherwise becomes unmarketable,
the Agency would question the legitimacy of using the
secondary materials in the quenching process.  Similarly, if
there were no hydrocarbon recovery stemming from the use of
the hazardous secondary materials in the quenching process,
the Agency would question the legitimacy of the activity. 
(The Agency knows of no such cases.)

With regard to the commenter's concern regarding the
potential for metals and other hazardous constituents
contained in hazardous secondary materials to be "toxics-
along-for-the-ride," the hazardous metals and constituents
found in the hazardous secondary materials generally can be
traced back to the metals and constituents found in the
original crude oil feedstock and so do not represent
contaminants introduced through means other than the
continued processing of the raw material feedstocks.  EPA's
traditional concern regarding unnecessary hazardous
constituents being processed and ending up in a product is
mitigated in this case because the Agency views this
activity as the continual processing of a raw material that
contains the hazardous constituents, with concentrations of
constituents found in the feedstock streams varying
dependent on the point in the overall production process. 
In the context of a multi-step production process involving
sequential processing of an initial raw material, there is
much less of an element of discard of the hazardous
constituents inherent in the original raw material than
there would be had these secondary materials been generated
by another industry (and so had a different mix of hazardous
constituents) or had the hazardous constituents not been
already present in the original raw material. 

The Agency notes for the commenter that EPA is considering
the merits of a parallel exclusion from the definition of
solid waste for secondary materials generated by the
petroleum refining sector and reused in petroleum
gasification operations.  Such an exclusion, if the Agency
considers it to be warranted, could be finalized in a
separate action.

Comment 2: The commenter questions EPA's reliance on
industry assurances regarding the protectiveness of the
coking process as a recycling operation.  The commenter
contends that the extent of the Agency's health and
environmental assessment consists of the following
statement:

     Coke is subject to .... certain limited industry
     product specifications ...Coke is also subject to
     product standards established by the ASTM for volatile
     matters and ash content.  Taken together, these
     controls help to insure the coke product does not
     contain unsafe levels of toxic contaminants. (60 FR
     57755, Emphasis added)

The commenter notes that ASTM is a test methods group, not a
health standard setting agency.  Further, combustibility
criteria do not substitute for a health assessment.  The
commenter cites petroleum industry personnel who state that
contaminants are deposited on coke sludge and sent out with
the product.  

The Agency must consider the affects of the proposed
recycling exemption, including movement of pollutants from
one medium to another and the making toxics in wastes more
available to the environment.  The commenter contends that
the only environmental justification for exempting hazardous
waste recycling from RCRA's preventative management
standards occurs when the recycling practice itself is
inherently protective (i.e., conducted in an enclosed system
or without releases) and when toxics are not merely shifted
from one medium to the next (i.e., from land, back to the
air.)(SEA, L0010)

Response: The Agency agrees with the commenter's assertion
that product standards are not health-based standards. 
However, after reviewing and analyzing data available to the
Agency regarding the coking process and the subsequent
effects upon the coke product from the use of oil-bearing
secondary materials in the coking process, including the
quench cycle, EPA concludes that there is no evidence of
significant degradation of the coke product or enhanced risk
to human health and the environment due to the use of oil-
bearing secondary materials in the process.

During the coking operation, including the quench cycle,
there is recovery of hydrocarbon values from the oil-bearing
secondary materials, short- and middle-chain fractions that
are condensed and sent to refining processes to produce
high-value fuel products (consistent with the overall coking
operation).  In addition, there is some beneficial
contribution to the coke product in the form of carbon and
higher energy values (even though this may not be reflected
by an actual increase in market value), and the Agency also
notes that the coke product continues to meet the market-
driven specifications for the product, even for high-value
anode grade coke.  And, as with other sidestreams generated
by one process and used as feedstocks to other production
processes, this activity constitutes a link in the multi-
step chain of processing steps designed to recover as much
of the hydrocarbon value from the original crude oil
feedstock as possible.  Thus, the Agency concludes that the
oil-bearing hazardous secondary materials used in the
quenching process are considered, for regulatory purposes,
as part of an on-going production process and hence
classified as an activity not subject to RCRA jurisdiction.

Comment 3: Quench-side coking appears to violate the HSWA
prohibition on dilution as a method of treatment and the
Agency's long-standing concern with toxics along for the
ride.  The LDRs clearly state that restricted wastes or
residuals from the treatment of a restricted waste will not
be diluted as a substitute for adequate treatment. 
Slurrying the solids and toxic metals with water and pouring
them into the quench with the expected "dispersion into the
mass of the coke" appears to violate the dilution
prohibition. 

Response: Since EPA is excluding oil-bearing secondary
materials reused in the refinery process from the definition
of solid waste, the dilution prohibition is not applicable. 
The excluded secondary materials are not subject to the LDR
requirements when managed in accordance with all conditions
of the exclusion.  One condition of the exclusion is that
the secondary materials not be placed upon the land prior to
reuse.  Hazardous secondary materials placed on the land
prior to reuse do not meet the conditions of the exclusion
and are subject to all applicable provisions for prohibited
wastes under the LDR program.

EPA does not agree with the commenter's premise, which is
that unusable secondary materials are being dumped into the
coke, which dilutes them.  The main object of quench coking
is to recover oil as a light fraction.  This occurs at the
same efficiency as in conventional coking (an operation
whose legitimacy is not questioned by the commenter.) 
Moreover, in considering whether the coke product produced
using secondary materials in the quenching process continues
to meet the product specifications (and, in fact,
demonstrates little or no change in the levels of
contaminants compared with coke produced without hazardous
secondary materials) is simply a result of dilution, the
Agency acknowledges that such dilution does occur.  Of
course any carbon derived from the secondary materials that
remains in the coke after light ends are recovered in the
quench process serves the same function as the coke product
itself (that is, as fuel), although this value is admittedly
nominal. However, there are several other considerations. 
For example, as noted above, the primary product of the
petroleum coking process is the hydrocarbon fraction
recovered for use as feedstock in the production of high-
value fuel products, with the coke product being a co-
product of the coking process.   The Agency is convinced
that such recovery occurs when oil-bearing secondary
materials are used in the quenching process. 

Based on a considered evaluation of conflicting data
provided by commenters, and using engineering and technical
judgement in lieu of data actually demonstrating the
recovery of hydrocarbon values from the secondary materials
used in the quenching process, the Agency believes that oil
(i.e., hydrocarbon value) is recovered during the quenching
process and that the efficiency of this recovery is
comparable to the recovery of light-ends during the
conventional coking process.    (The Agency also notes that
in the worst case scenario provided by the commenter, which
assumed 80% of the oil in the secondary material was too
heavy to significantly volatilize at the temperatures
encountered during the quenching process, there was recovery
of hydrocarbon, even from the heavy oil fraction.)

Given that the recovered hydrocarbon is the primary product
of using the secondary materials in the quenching process,
the simple fact that the coke product (i.e., the co-product)
continues to meet the applicable product specifications and
shows no appreciable increase in risk carries more weight in
the Agency's evaluation.  In other words, demonstrating
hydrocarbon recovery is the key test in determining whether
the hazardous secondary materials actually serve a useful
role in the overall coking operation, rather than
demonstrating a net contribution to the coke (as opposed to
no degradation of the coke).  The Agency believes that the
product specifications, and the economic consequences if
those specifications are not met, will serve to limit the
use of the quenching process to secondary materials that
will not cause the coke to exceed its specifications, and
effectively limits the allowable insertion of metals and
excess high boiling point hydrocarbons.  However, in cases
where there is sufficient degradation of the product (or co-
product) such that it no longer meets product specifications
or otherwise becomes unmarketable, the Agency would question
the legitimacy of using the secondary materials in the
quenching process.  Similarly, if there were sharply
decreased efficiency of hydrocarbon recovery stemming from
the use of the hazardous secondary materials in the
quenching process (recovery rates of, for example, less than
50% of the oil contained in the secondary materials, rather
than the minimum 70% efficiency EPA believes occurs), the
Agency would question the legitimacy of the activity.  (The
Agency knows of no such cases at present.) 

During the coking operation, including the quench cycle,
there is recovery of hydrocarbon values from the oil-bearing
secondary materials, short- and middle-chain fractions that
are condensed and sent to refining processes to produce
high-value fuel products (consistent with the overall coking
operation).  Any hydrocarbon not recovered as light ends as
described above must, by a straightforward mass balance
assumption, remain in the coke product that is itself almost
entirely made of carbon and is marketed for its carbon
content, i.e., as a fuel (even though this may not be
reflected by an actual increase in market value).  The
Agency also notes that the coke product continues to meet
the market-driven specifications for the product, even for
high-value anode-grade coke.  And, as with other sidestreams
generated by one process and used as feedstocks to other
production processes, this activity constitutes a link in
the multi-step chain of processing steps designed to recover
as much of the hydrocarbon value from the original crude oil
feedstock as possible.  Thus, the Agency concludes that the
oil-bearing hazardous secondary materials used in the
quenching process are considered, for regulatory purposes,
as part of an on-going production process and hence
classified as an activity not subject to RCRA jurisdiction.

However, in cases where there is sufficient degradation of
the product (or co-product) such that it no longer meets
product specifications or otherwise becomes unmarketable,
the Agency would question the legitimacy of using the
secondary materials in the quenching process.  Similarly, if
there were no hydrocarbon recovery stemming from the use of
the hazardous secondary materials in the quenching process,
the Agency would question the legitimacy of the activity. 
(The Agency knows of no such cases.)

Comment 4: The commenter stated that the proposed rule's new
exclusions should not allow unpermitted "covert" commercial
facilities to operate at refineries.  There should be no
double standard of protection between refinery-based or off-
site recyclers.  The commenter cited examples of the
proposed exclusion and stated that changes to the definition
of solid waste would penalize legitimate, permitted
recycling firms.  

"Among the most significant issues raised by these case
studies and those which are in need of further
interpretation and clarification include: the legitimacy of
the so-called exemption claims; the applicability of the
Boiler and Industrial Furnace (BIF) rule standards; why the
thermal desorption standards of the Superfund program are
not being applied to such units when operating at
refineries; the type of stack testing and stack gas
monitoring; whether the State's "fugitive emission" controls
provide equivalent protection to RCRA's Subpart AA & BB air
emission standards; the adequacy of the waste and residuals
analysis; the quality of the wastewater discharge;
containment to prevent soil releases; closure; and
enforcement verification.  All of these issues/standards
would be addressed in a permit proceeding for a commercial
offsite operation, but in the case of GDC, amounts to little
more than a glossed-over "pen pal" proceeding as the
attachments to our July 11, 1997 submission reveal."

"Legality notwithstanding, it is clear that through
aggressive interpretations of recycling exemptions,
commercial facilities are being allowed to operate at
refinery sites without the same level of environmental
safeguard that free-standing commercial facilities are
subject to.  The result is that EPA is financially rewarding
businesses that do the least to protect the environment and
punishing those that do the most.  The Agency must launch an
enforcement investigation to ensure that RCRA's recycling
provisions and safeguards, such as they are, are being
correctly interpreted and applied and to reexamine current
and pending regulations and policies to prevent the
proliferation of unpermitted commercial recycle operations
at petroleum refineries."  (SEA, 00015, L0006, L0010)

Response: The Agency cannot document the commenter's claims.

For example, information made available to the Agency by API
and Shell Norco indicate that facility does have a RCRA
permit.  EPA believes that the Shell Norco and Kipin
Industries recycling process has been scrutinized by state
authorities and determined to meet the substantive criteria
for an exemption for hazardous waste recycling.  In
addition, the facility is subject to air emissions standards
for hazardous air pollutants (as well as conventional
pollutants) under the CAA.  In addition, the issues
regarding the permitting status of one (or a few) facilities
is beyond the scope of today's rulemaking.  Authorized
states are provided the authority to issue and enforce
permitting standards.  Nothing contained in the proposed
rule or in today's final rule was or is intended to change
state authority with regard to the review of RCRA facility
permit applications and/or the authority to approve
operating permits.  The Agency notes that several states
require facilities that recycle RCRA hazardous waste to
apply for and obtain a permit for such recycling activities.

Comment 5:  EPA's recent requests for more information about
quench cycle coking may be based on improper consideration
of untimely, unresponsive, and unsupported comments made by
interested parties made long after the public comment period
had closed, including comments made at ex parte meetings
with senior management in December 1997.  EPA's
consideration of those late comments has placed API and its
members in an unfair and unreasonable position by requiring
API to produce new information on very short notice and at
virtually the same time that EPA should be making its final
rulemaking decisions.  These recent events could prejudice
the outcome of the final rule and raise serious questions
about whether EPA will satisfy the rulemaking requirements
of the Administrative Procedure Act and its own regulations.

(API, 1/23/98, Attachment A)

Response: EPA believes it is more important to make
technical determinations on the best information possible,
rather than to simply close off the rulemaking process. 
Consequently, the Agency gave careful consideration to the
late comments of SEA and EDF and sought further dialogue
with members of the petroleum refining industry as well. 
The Agency obtained additional information from the
commenter to assist the Agency in analyzing technical
aspects of the petroleum refining process (e.g., information
on the coke quenching cycle) and to assist EPA in
understanding potential consequences of the proposed
exclusion from the definition of solid waste for oil-bearing
secondary materials that were not anticipated, and therefore
not considered, during the development of the proposed
rulemaking.  Information furnished by the commenter assisted
EPA in determining that the coking process, including the
quench cycle, are part of the on-going petroleum refining
process.  The Agency appreciates the commenter's assistance.

EPA also believes that there has been ample notice and
opportunity for comment on all of these issues.

Comment 6:  The information recently requested by EPA is
immaterial and unnecessary to a final decision on the
proposed exclusion.  EPA already possesses all of the
information it needs to determine that oil-bearing secondary
materials used in cokers (including the coking quench cycle)
to make petroleum products are not discarded, do not
contribute to waste management problems, and should be
excluded from the definition of solid waste.  (API, 1/23/98,
Attachment A)

Response: The Agency's request for additional information
was due to a concern that EPA did not have sufficient
information to make a determination regarding the
contribution of the coking process, including the quench
cycle, to the overall petroleum refining process.  The
Agency appreciates the additional information provided by
the commenter.  Information furnished by the commenter
assisted the Agency in making its determination that the
coking process is an integral part of the overall petroleum
refining process, that hydrocarbons are indeed being
recovered during this process and therefore, the use of oil-
bearing secondary materials generation by the petroleum
sector in the coker is legitimate reuse of these materials
in the original production process.

Comment 7:  The suggestion that EPA merely characterize
petroleum cokers as "exempt RCRA recycling units" rather
than exclude oil-bearing materials used in cokers from the
definition of solid waste is legally unacceptable because
it: would assert jurisdiction over those materials in
violation of the court's mandate in the American Mining
Congress ("AMC I") case; would not provide any legal relief
beyond what is already available under the existing rules;
would not resolve the many legal questions raised by state
and Regional enforcement agencies about the requirements for
management of those materials.  (API, 1/23/98, Attachment A)

Response:  EPA disagrees that an exclusion is compelled as a
matter of law (even though legitimate recycling is
occurring).  First, there is direct case authority that
secondary materials which originate from wastewater
treatment systems can be considered to be "discarded."  See
AMC II, 907 F.2d at 1186 ("Nothing in AMC [I] prevents the
Agency from treating as  discarded' the wastes at issue in
this case, which are managed in land disposal units that are
part of wastewater treatment systems, which have therefore
become  part of the waste disposal problem,' and which are
not part of ongoing industrial processes" (emphasis
original)).  Industry indicates that, primarily, the oil-
bearing hazardous secondary materials utilized in the
quenching process are wastewater treatment sludges (chiefly
K048, F037 and F038), which are thus directly analogous to
the sludges at issue in the AMC II decision, and thus could
be considered to be discarded. 

These sludges likewise could be considered to be solid
wastes pursuant to RCRA section 3004(q)(2)(A) which
indicates that certain provisions otherwise applicable to
hazardous waste-derived fuels do not apply to petroleum coke
produced from "petroleum refinery wastes containing oil
which are converted into petroleum coke at the same facility
at which such wastes were generated."  The plain language of
the provision can be read to cover the activity at issue
here, and thus indicate that wastewater treatment sludges
and other hazardous secondary materials going to quench
coking could be classified as solid wastes.

More basically, EPA does not regard the use of oil-bearing
wastewater treatment sludges in the quenching process to be
the type of operation which must necessarily be classified
as part of an on-going manufacturing process.  The parts of
the petroleum refining process outside the Agency's RCRA
jurisdiction involve the sequential distillation of crude
oil (not wastewater treatment sludges or other wastewater
treatment residuals) into various fractions such as
gasoline, fuel oil, asphalt, and  conventional coking.  See
824 F.2d at 1181.  However, the quenching process need not
be viewed as one more on-going step in this process.  Not
only is there the temporal interdiction of the generation of
wastewater and subsequent management of the wastewater and
sludges in the refinery's wastewater treatment system, but
the quenching process differs in material ways from the
standard refining operations.  As discussed above, the
secondary materials utilized have less oil, higher
percentages of unusable materials, and the process generates
less recovered oil, than any other unit operation in the
conventional refining process. 

The Agency thus does not accept the argument that exclusion
of hazardous secondary materials used in the quenching
process is compelled.  This is not to say that the Agency
lacks the discretion to make such a determination.  The term
"discarded" is ambiguous, and within the Agency's authority
to interpret consistent with the general goals and policies
of the statute.  AMC II, 907 F. 2d at 1186; American
Petroleum Inst v. EPA, 906 F. 2d 726, 741 (D.C. Cir. 1990). 
Among these goals, of course, is encouraging environmentally
sound recycling.  RCRA section 1003(a)(6).  Moreover,
assessing what should be viewed as continuous industrial
processes, and which types of material recovery operations
are "not part of the waste disposal problem" (AMC II, 907
F.2d at 1186), are the types of technical and policy
questions particularly committed to EPA's expert discretion.

It is that discretion which the Agency is exercising in
determining in this rule that a conditional exclusion is
appropriate for certain hazardous oil-bearing secondary
materials used in the coke quenching process.

Comment 8: The commenter noted that questions had been
raised regarding whether quench cycle injection of secondary
materials is a part of the manufacturing process known as
coking.  The commenter noted that, like conventional vacuum
resid and other coker feeds, the injected hydrocarbon-
bearing secondary materials are recovered as liquid products
for the production of valuable transportation fuels or, in
part, physically or chemically transformed into salable coke
product of significant value.  Because of the water content
of most of the sludges, introduction with conventional coker
feeds at greatly elevated temperatures is often not
practiced due to safety, environmental, and operational
concerns about coker upsets.  However, the water content of
the sludges becomes an advantage when introduced prior to or
during the coke drum quench cycle since water cooling is
desired at that point.  (API, 1/23/98, Attachment C)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the use of oil-bearing
secondary materials in the coking process.

Comment 9: The commenter responded to the question of how
much of the oil in the hydrocarbon bearing secondary
material is recovered for further upgrading into valuable
transportation fuels.  Based on work by Mobil Oil,
inspection and analysis of a number of the injected
hydrocarbon-bearing secondary materials, including
distillation of the oil fractions, engineering calculations
indicate that recoveries commonly range from 85-100% at the
beginning of the injection when the coke drum overhead
temperature is about 800+ F, declining to a range of 40-55%
just prior to ceasing injection at the recommended guideline
temperature of about 600 F.    This data indicates that on
average, over the entire range of coking temperatures,
approximately 75% of the hydrocarbon injected with the
sludges is vaporized and recovered for production of
transportation fuels.  The remaining 25% or so of the
hydrocarbon becomes part of the final petroleum coke
product, either as coke itself or as VCM.  However, the
petroleum coke produced, in part, from injected hydrocarbon
bearing secondary materials, continues to meet required
product specifications for sale.  Volatile Combustible
Material (VCM) of the coke is estimated to increase by 0.3-
0.4 weight % due to the incorporated hydrocarbons and any
other organic solids contained in the secondary material.  A
field comparison by Mobil Oil of VCM of commercial petroleum
coke with or without the subject recycled secondary material
confirmed that the actual VCM increment was 0.3 weight %. 
(API, 1/23/98, Attachment C)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the use of oil-bearing
secondary materials in the coking process.  Based upon the
commenter's written submission and documentation and upon
information provided to EPA in subsequent meetings between
EPA and representatives from the petroleum refining industry
held to discuss the coking process, including the quench
cycle, and its contributions to the refining process, EPA
has determined that conventional coking and quench coking
are integral to the ongoing petroleum refining process.  

Based on a considered evaluation of conflicting data
provided by commenters, and using engineering and technical
judgement in lieu of data actually demonstrating the
recovery of hydrocarbon values from the secondary materials
used in the quenching process, the Agency believes that oil
(i.e., hydrocarbon value) is recovered during the quenching
process and that the efficiency of this recovery is
comparable to the recovery of light-ends during the
conventional coking process.  This belief is based largely
on the Agency's best professional judgement upon review of
the typical range of boiling points in the hydrocarbons
present in the secondary materials, in concert with the
temperatures these secondary materials experience in the
coke drum for the duration of the quench cycle; because of
the presence of water during the quench cycle, the
additional effect that water volatilization is predicted to
have on the removal of volatile constituents (i.e., an
effect analogous to "steam stripping") also serves, in the
Agency's best professional judgement, to facilitate the
removal and transport of volatilized hydrocarbons up and out
of the coke drum to be recovered.  In applying its best
professional judgement to the technical information (e.g.,
boiling point ranges, coke drum temperatures, effect of
water vapor, etc.) provided by commenters on both sides of
the issue, the Agency relied heavily on it's own familiarity
with the industry, informed by numerous site visits to
refineries and experience with the secondary materials at
issue.  The Agency also was persuaded by certain specific
simulations of boiling point ranges provided by oil industry
representatives.  (The Agency also notes that in the worst
case scenario provided by one commenter opposed to the
exclusion, which assumed 80% of the oil in the secondary
material was too heavy to significantly volatilize at the
temperatures encountered during the quenching process, there
was recovery of hydrocarbon, even from the heavy oil
fraction.)

Comment 10: The commenter explained why the use of secondary
materials in the quench cycle has  increased in recent
years.  From a general standpoint, increased reliance on
offshore heavier crudes has led to additions of coker
capacity, creating some increased opportunity for this
process.  Aside from the obvious incentive to recover
hydrocarbons, another potentially significant factor could
be the expiration of Mobil's patent in 1995, such that any
refiner could begin using this technology without first
licensing it from Mobil and paying a royalty fee.  (API,
1/23/98, Attachment C)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the increased use of oil-
bearing secondary materials in the coking process.  Data
available to the Agency indicate that there may be several
reasons for this occurrence.  The use of coking may be
increasing due to changes in the characteristics of
available crude and the fact that more refineries have
cokers.  As more refineries add cokers to the refining
process, the production of coke and the levels of coking are
expected to increase.  In addition, in 1994, the exclusion
from the definition of solid waste for petroleum coke
produced from refinery hazardous wastes containing oil (40
CFR 261.6(a)(3)(v)) was expanded to include coke produced
using hazardous wastes generated by the same "person,"
rather than merely generated at the same "site." 

According to information published by API, 406 thousand wet
tons of primary sludge was managed by refineries in 1994. 
This represents the largest quantity of primary sludge
generation ever reported (288 thousand wet tons were
generated in 1993).  API's information indicates that it is
likely that this reflects the refineries' efforts to meet
statutory deadlines to retrofit or close primary sludge or
TC surface impoundments in 1994.  Thus, just as increases in
waste generation noted by API between 1991 and 1993 were
related to regulatory actions, the closure of certain land-
based units resulted in peaked generation of primary sludge
in 1994.   API questioned the refineries regarding the
increase in sludge generation and they stated it was an
"abnormal or one-time event."  The primary management for
this added quantity was "recycle to the coker."

In contrast, API reported a decrease of greater than 60
percent in primary sludge management in 1995.  API members
reported managing only 128 thousand tons of primary sludge
in 1995.  This is the lowest quantity managed since 1991,
and possibly provides an explanation regarding the
fluctuation in the amount of secondary materials managed in
cokers.  In the final analysis, as petroleum coking is
part of legitimate production, increased petroleum coking
would indicate increased materials recovery.  In addition,
as discussed above the Agency is investigating gasification
as another means of recovery for these types of secondary
materials.


Comment 11: The commenter explained why a minimum oil
content limit for secondary materials used in the coker
quench cycle is not needed.  The historical purpose of this
process has been the recovery of hydrocarbons for production
of transportation and other fuels (i.e., petroleum coke). 
Typically, refiners have used secondary materials in the
coker quench cycle to reprocess wastewater treatment sludges
and tank sediments, such as crude oil or clarified slurry
oil tank sediments from tank cleanings for inspections. 
These materials, by their nature, contain various levels of
hydrocarbons, and those levels vary over time due to the
nature of the various oil recovery processes involved in
their generation.  These sludges represent the end result of
numerous efforts to recover oil during the wastewater
treatment process or tank cleaning operations.  Since it is
in the interests of the environment to recover as much oil
as possible as early in the wastewater treatment process or
tank cleaning process as possible, it could be counter-
productive to establish a minimum oil content requirement
for such residuals being reprocessed via the coker quench
cycle to recover hydrocarbons that cannot be recovered by
other, more mechanical means.  Hence, setting a minimum oil
content requirement would be a classic case of the "tail
wagging the dog," by effectively precluding the fullest use
of a variety of highly efficient oil recycling techniques
solely in order to leave enough oil in the residual to meet
an arbitrary standard for cokers.  In addition, EPA should
not establish such a minimum oil content because it sends a
message that materials with otherwise valuable oil contents
below an arbitrary level are unworthy of recovery.    (API,
1/23/98, Attachment C)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the use of oil-bearing
secondary materials in the coking process.  Based upon
information provided by the commenter, the Agency rejected
limiting the exclusion based on a set minimum oil content. 
The exclusion for oil-bearing hazardous secondary materials
being legitimately used in the quenching process is
conditioned only on these materials being managed such that
there is no land placement and no speculative accumulation,
and that the coke product produced not exhibit a
characteristic of hazardous waste.

The Agency rejected limiting the exclusion based on a set
minimum oil content or a recovery efficiency requirement for
several reasons.  As discussed above, the quenching process
represents the final, and last possible process (other than
possibly gasification, which the Agency is presently
evaluating) in which to recover hydrocarbon from the
original crude oil feedstock.  The refinery processes and
operating procedures are designed to separate and process
into products as much hydrocarbon as possible from the crude
oil feedstock, in other words, to prevent as much oil from
making its way into these secondary materials as possible. 
The oil that does make its way into these secondary
materials is generally considered unavoidable and
inevitable, or in some cases, too much oil in these
secondary materials is evidence of a problem with some
aspect of the overall refining process (which goes towards
explaining the wide range of oil contents in these
materials).  Thus, it would be counter to the overall
efficiency of the petroleum refining process to require a
minimum oil content in the secondary materials.  Conversely,
the Agency believes it is fundamental to this exclusion that
there actually be oil recovered for further refining when
these oil-bearing hazardous secondary materials are used in
the quenching process.  To the extent there is no recovery
of a light fraction, or drastically inefficient recovery,
the operation could be a type of sham recycling, as
discussed earlier.

Also, the Agency believes that, in this case, a minimum oil
content condition would do little to ensure that only those
secondary materials from which oil can actually be recovered
would be excluded; in other words, the Agency does not
believe that setting a minimum oil content would ensure that
secondary materials are legitimately being used in the
quenching process.  Since most of the secondary materials in
question result from wastewater treatment, a minimum oil
content requirement would only serve to encourage a refinery
to operate the refinery wastewater treatment process less
efficiently to ensure that  these secondary materials
contain the minimum oil content and thus avail themselves of
an exclusion.  

Comment 12: The commenter critiqued the analysis of
hydrocarbon "recovery" in quench-cycle cokers as presented
by SEA in its January 9, 1998 correspondence to the Agency. 
The commenter identified numerous flaws in SEA's technical
arguments which the commenter argues discredit SEA's
conclusions.  These technical flaws include:

1.   The SEA data used to develop its "recovery" estimates
     are completely undocumented, and therefore,
     unverifiable and unreliable;
2.   SEA's characterization of F and K wastes bear little
     resemblance to the characteristics of wastewater
     treatment sludges actually reprocessed via quench-cycle
     coking;
3.   The manner in which SEA uses 650 F as a cut-off for
     "low-end" vs. "high-end" hydrocarbons, and as an
     average temperature during the quench cycle, is
     inaccurate and arbitrary;
4.   No technical basis is apparent for SEA's assumptions of
     <50% volatilization of "light-ends" and <5%
     volatilization of "heavy-ends;"
5.   The calculations do not account for the effects of
     lowered partial pressure from steam during the quench
     cycle;
6.   SEA's "recovery" rates are based on worst-case
     injection rates;
7.   SEA has overstated the density of the injected
     residuals; and
8.   The boiling ranges for SEA's undocumented data should
     not be used in conjunction with API's data.  (API,
     1/23/98, Attachment D)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the use of oil-bearing
secondary materials in the coking process.  The Agency notes
that data and information related was received from several
outside parties, including the petroleum industry.  The
Agency reviewed and considered all information and data
provided to the Agency in making the final decisions
regarding the conditional exclusion for secondary materials
generated by petroleum refineries and returned to the
refinery process.

The Agency cannot say with certainty whether all of the
commenter's criticisms of SEA's comments are warranted. 
However, based upon a considered evaluation of conflicting
data provided by commenters, and using engineering and
technical judgement in lieu of data actually demonstrating
the recovery of hydrocarbon values from the secondary
materials used in the quenching process, the Agency believes
that oil (i.e., hydrocarbon value) is recovered during the
quenching process and that the efficiency of this recovery
is comparable to the recovery of light-ends during the
conventional coking process. 

EPA believes that the recovery of hydrocarbon from the oil-
bearing secondary materials in the quenching process is
consistent with the overall petroleum refining process, and
the coking operation in particular, i.e., the recovery of
hydrocarbons for the production of high-value fuel products.

This goal, in turn, is consistent with the RCRA objective to
encourage safe types of recycling.  (See RCRA section
1003(a)(6)).

After evaluating all information available to the Agency,
including, the fact that 1) the recovery efficiency of
hydrocarbons from oil contained in the secondary materials
used in the quenching process is comparable to the recovery
efficiency of the conventional coking process, 2) the use of
oil-bearing hazardous secondary materials (including RCRA
listed hazardous wastes) in the quenching process is
consistent with the overall goal of the petroleum refining
industry, namely to maximize the  recovery of hydrocarbon
values from the original crude oil feedstocks, and 3) the
coke product continues to meet product specifications and
indicates no increase in risk (and so can be viewed as not
being part of the waste disposal problem, in the language of
the D.C. Circuit), the Agency concludes that the use of oil-
bearing hazardous secondary materials generated by the
refinery can a) legitimately be used in the coke quenching
process; and b) can be viewed as a part of the petroleum
refining process and, as a matter of discretion in
determining whether secondary materials are discarded,
excluded from being solid wastes.

Comment 13: The commenter presents data collected over a two
week period regarding the percentage of hydrocarbons from
injected sludges that are volatilized during the coker
quench cycle, as well as some VCM content data.  The
commenter argues that the data clearly indicate that:

     Over the entire range of actual operating conditions, a
     majority of the hydrocarbons injected into the quench
     cycle are volatilized and recovered as coker products
for
     the production of transportation fuels in other refinery
     processes;
     The VCM data indicates no significant statistical
     difference in VCM content of coke with and without
     residual injection during the quench cycle.  (API,
     1/23/98, Attachment E)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the use of oil-bearing
secondary materials in the coking process.  The Agency
reviewed all information provided by all commenters.  After
reviewing all data and employing best professional
engineering judgement, the Agency is persuaded by the
commenter's statements.  Based upon information regarding
the characteristics of the secondary materials generated and
reused by the petroleum refining industry, data regarding
the temperatures obtained during the coking process and
augmented by information regarding the lower partial
pressure from steam obtained during the coking process, the
Agency has concluded that hydrocarbons are recovered during
the quench coking process and has determined that coking is
an integral part of the refinery process.

Comment 14: The commenter responded to SEA's allegation that
the use of the coking process by refiners has increased in
the last few years as a means of disposal for residuals. 
The commenter believes that independent standard reference
materials clearly validate the position that increased coke
production is primarily a result of changes to available
crude oil characteristics that are outside the control of
petroleum refiners.  (API, 1/23/98, Attachment F)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the increased use of oil-
bearing secondary materials in the coking process.  Data
available to the Agency indicate that there may be several
reasons for this occurrence.  The use of coking may be
increasing due to changes in the characteristics of
available crude and the fact that more refineries have
cokers.  As more refineries add cokers to the refining
process, the production of coke and the levels of coking are
expected to increase.  In addition, in 1994, the exclusion
from the definition of solid waste for petroleum coke
produced from refinery hazardous wastes containing oil (40
CFR 261.6(a)(3)(v)) was expanded to include coke produced
using hazardous wastes generated by the same "person,"
rather than merely generated at the same "site." 

According to information published by API, 406 thousand wet
tons of primary sludge was managed by refineries in 1994. 
This represents the largest quantity of primary sludge
generation ever reported (288 thousand wet tons were
generated in 1993).  API's information indicates that it is
likely that this reflects the refineries' efforts to meet
statutory deadlines to retrofit or close primary sludge or
TC surface impoundments in 1994.  Thus, just as increases in
waste generation noted by API between 1991 and 1993 were
related to regulatory actions, the closure of certain land-
based units resulted in peaked generation of primary sludge
in 1994.   API questioned the refineries regarding the
increase in sludge generation and they stated it was an
"abnormal or one-time event."  The primary management for
this added quantity was "recycle to the coker."

In contrast, API reported a decrease of greater than 60
percent in primary sludge management in 1995.  API members
reported managing only 128 thousand tons of primary sludge
in 1995.  This is the lowest quantity managed since 1991,
and possibly provides an explanation regarding the
fluctuation in the amount of secondary materials managed in
cokers.  In the final analysis, as petroleum coking is
part of legitimate production, increased petroleum coking
would indicate increased materials recovery.  In addition,
as discussed above the Agency is investigating gasification
as another means of recovery for these types of secondary
materials.

Comment 15:  SEA contends that quench recycling feedstocks
are not "feedstock-like" because they do not approach a 100%
oil content.  However, oil content is not the relevant
measure of whether the injected residuals are
"feedstock-like."  
The characteristics of the oil contained in the
residuals are the important criteria, and, as EPA has
correctly concluded, hydrocarbons contained in the residuals
used in the coker quench cycle closely resemble numerous
refinery intermediate streams, or mixtures thereof.  (API,
1/23/98)

Response: EPA has determined that the quenching process 
(other than possibly gasification, which the Agency is
presently evaluating) represents the last possible process
in which to recover hydrocarbon.  The refinery processes and
operating procedures are designed to separate and process
into products as much hydrocarbon as possible from the crude
oil feedstock, in other words, to prevent as much oil from
making its way into these secondary materials as possible. 
The oil that does make its way into these secondary
materials is generally considered unavoidable and
inevitable, or in some cases, too much oil in these
secondary materials is evidence of a problem with some
aspect of the overall refining process or of the wastewater
treatment system. (These same factors also explain to some
degree the variability in the oil content of secondary
materials used for quench coking: the same materials are
used but the oil content varies depending on the daily
efficiencies of the refining process and wastewater
treatment system).  Since a key aim of the process is to
recover these vestigial hydrocarbons, it stands to reason
that the secondary materials will have less oil in them than
in-process materials and secondary materials used elsewhere
in the refining process.

Hydrocarbons in those materials can be recovered more
easily, and the materials involved come from earlier steps
in the process and so will have more oil, or more oil (viz.
hydrocarbons) that are recoverable by less drastic means
than quench coking (or gasification).  

EPA thus does not find it determinative that the secondary
materials utilized as feed for quench coking contain less
hydrocarbons than secondary materials and in-process
materials used in earlier parts of the refining process.  In
addition, it would be counter to the overall efficiency of
the petroleum refining to require a minimum oil content in
the secondary materials, since higher oil levels would tend
to indicate that the same hydrocarbons are escaping recovery
elsewhere in the system.

Also, the Agency believes that, in this case, a minimum oil
content condition would do little to ensure that only those
secondary materials from which oil can actually be recovered
would be excluded, or in other words, the Agency does not
believe that setting a minimum oil content would ensure that
secondary materials are legitimately being used in the
quenching process.  Since most of the secondary materials in
question result from wastewater treatment, a minimum oil
content requirement would only serve to encourage a refinery
to operate the refinery process less efficiency to ensure
that these secondary materials contain the minimum oil
content and thus avail themselves of an exclusion.  

EPA believes that a comparison of the recovery efficiency of
the quenching process to the recovery efficiency of the
conventional coking process (of the resids) provides a
better  indication of how "production-related" the use of
the hazardous secondary materials in the quenching process
is (i.e., the more similar the quenching process is to the
conventional coking process in the recovery of hydrocarbon
values, the more it may be considered analogous to, or a
component of, the coking process). The data supplied
indicate that the recovery efficiency of oil contained in
the secondary materials during the quenching process is
comparable to the recovery efficiency from the feedstock
side of the coking operation.  Thus, although the oil
content in the hazardous secondary materials is markedly
less, at the very least, there is demonstrated hydrocarbon
recovery from the secondary materials used in the quenching
process, which is consistent with the overall production
intent of petroleum refining.

The Agency notes that one major point of contention between
those commenters opposed to the exclusion and those
supporting the exclusion is whether there is actual evidence
that oil (or hydrocarbon value) is recovered during the
quenching process.  As stated previously, the oil content of
the oil-bearing hazardous secondary materials typically used
in the quenching process varies considerably (8% - 40%),
although the typical secondary materials have an oil content
around 10%.  In determining the oil recovery efficiency of
the quenching process (i.e., a quantification of how much of
the oil contained in the secondary materials is actually
volatilized and recovered for further refining versus how
much oil is simply incorporated into the coke product), EPA
encountered difficulty in getting any actual data.  The data
the Agency primarily relied on were derived from surrogate
tests (i.e., tests designed to simulate the conditions the
secondary materials encounter during the quenching process)
performed on the secondary materials typically used in the
quenching process.  This is because coking operations
(particularly the capture and condensing of the light-end
hydrocarbons) do not avail themselves to the type of
quantifiable measurements that the Agency prefers. 
Regarding the quenching process, this is even more the case.

However, surrogate tests may actually be more representative
of the oil recovered from secondary materials used in the
quenching process than actual measurements taken during the
quenching process.  This is because any measurement of the
amount of oil recovered during the quenching process would
also likely include the light-ends that remain entrained
within the coke product from the conventional coking
operation (i.e., light-ends derived from the resids
feedstock) which are typically recovered during the
quenching process in a manner analogous to steam stripping. 
In other words, surrogate tests, by using only oil-bearing
secondary materials that are heated to simulate the
environment encountered in the quenching process, allow for
a more controlled system in which measurements of percent
oil volatilized can be made.  In contrast, during the actual
quenching process, the recovered light-end hydrocarbons will
contain a mixture of hydrocarbons derived from the secondary
materials injected during the quench, and some residual
hydrocarbons that were entrained within the coke product at
the end of the normal coking cycle.  In the latter example,
apportioning the relative contributions of these two sources
to the recovered hydrocarbon in a manner that allows
accurate percentages is difficult.

One of the critical factors in estimating the oil recovery
efficiency of the quenching process is the specific gravity
of the oil contained in the hazardous secondary materials. 
The lighter the oil fractions, the more oil will volatilize
during the quenching process.  Here too, there was
disagreement among commenters over how the oil contained in
the secondary materials should be characterized.  One
commenter stated that since the quality of crude oils has
grown steadily heavier over time, a trend that is only
expected to continue, the oil contained in the secondary
materials, especially the wastewater treatment sludges,
would be disproportionately heavy and thus would be less and
less likely to volatilize during the quenching process. 
This was supported by data (gathered from listed hazardous
wastes sent to RCRA-permitted facilities) demonstrating the
heavy-to-light ratio for oil contained in the wastes.  In
response, the petroleum industry stated that the oil
contained in the secondary materials (particularly
wastewater treatment sludges) comes from oil that has been
through some refining and thus the trend towards heavier
crude oils will not have a corresponding effect on the oil
contained in the secondary materials.  Also, industry claims
that the actual data used to support the assertion that the
oil contained in the secondary materials is predominantly
heavy is not representative of the secondary materials used
in the quenching process because, prior to sending such
materials to a permitted facility for proper treatment and
disposal, a refinery will typically use other processes
(e.g., centrifuging) to aggressively extract as much oil
(and water -- to reduce the volume of material sent for
treatment and disposal) as possible from the materials, more
so than would be the case if these materials are to be used
in the quenching process.  The oil recovered by these more
aggressive recovery processes would tend to be the lighter
oils, leaving a disproportionate amount of heavy oil in the
materials analyzed.

Based on a considered evaluation of these conflicting
comments, and using engineering and technical judgement in
lieu of data actually demonstrating the recovery of
hydrocarbon values from the secondary materials used in the
quenching process, the Agency believes that oil (i.e.,
hydrocarbon value) is recovered during the quenching process
and that the efficiency of this recovery is comparable to
the recovery of light-ends during the conventional coking
process.  (The Agency also notes that in the worst case
scenario provided by one commenter opposed to the exclusion,
which assumed 80% of the oil in the secondary material was
too heavy to significantly volatilize at the temperatures
encountered during the quenching process, there was recovery
of hydrocarbon, even from the heavy oil fraction.)

Comment 16:  SEA contends that heavier crude oil slates have
led to heavier residuals being fed into the coker quench
cycle.

In reality, changes in crude oil slates have had only minor
effects on the intermediate refining streams, which are the
source of the oil-bearing residuals that are sent to the
coker quench cycle.  (API, 1/23/98)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the use of oil-bearing
secondary materials in the coking process.   The Agency
agrees with the commenter, based upon the fact that the oil
that ends up in the secondary materials in question comes
from all parts of the refinery process, and represents
hydrocarbons that have already undergone some amount of
refining.  The Agency acknowledges that there would be
predictably lower recovery efficiencies if secondary
materials containing more of the heavier (i.e., higher
boiling point) hydrocarbons were injected into the coke drum
at lower temperatures.  However, based upon the Agency's
best engineering judgement after reviewing the range of
boiling points that have been measured in materials that are
actually quench coked, and the operating parameters of the
quench process as documented by the industry data, that the
recovery efficiency predicted under these conditions is
comparable to normal coking.

Comment 17:  SEA contends that petroleum coke has no market
value and is dumped on  Third World" Countries.  As API has
documented repeatedly, many third-party sources, including
the Department of Energy, The Oil and Gas Journal, and The
Pace Petroleum Coke Quarterly, all provide data on average
petroleum fuel-grade ($17-$41/metric ton) and anode grade
($74/dry short ton) coke prices, which conclusively
demonstrate that coke is a valuable product in demand both
domestically and in many other industrialized countries;
thus, SEA's contention is clearly without merit.  (API,
1/23/98, supported by APCA, L0002)

Response: The Agency thanks the commenter for submitting
additional information on the market and market value of
petroleum coke.  The Agency concludes that although a major
portion of the petroleum coke produced by U.S. refineries
was exported in 1996, the large majority of coke was not
exported to third world countries.  In fact, 68 percent of
petroleum coke exports in 1996 were to Japan, Spain, Italy,
Belgium/Luxembourg, the Netherlands, Canada, and Turkey. 
Data available to the Agency indicates that petroleum coke
has a positive market value of at least $20 per short ton.

Comment 18:  SEA contends that quench injection results in
"undesirable" coke.  Although SEA continues to maintain that
anode grade coke production and quench cycle coking are
incompatible, both Marathon and Texaco routinely practice
quench cycle coking while producing anode quality coke. 
(API, 1/23/98)

Response: The Agency thanks the commenter for its submittal
of addition information regarding the use of oil-bearing
secondary materials in the coking process and their effect
upon the quality of the coke product. 


II.B.2.d. Supplemental comments on clarification  

Comment 1:  API has reviewed the issue that has been raised
regarding the proposed SWD exclusion (40 CFR 261.4(a)(12))
for oil-bearing secondary materials, i.e., how the proposed
exclusion could affect the status of solid residuals
generated by a unit processing secondary materials for
further use in the refining process.  As API understands
this concern, a commenter believes that the proposed rule
might be construed so that solid residuals generated by a
unit (e.g., a centrifuge) which recovers oil from oil-
bearing secondary materials excluded from the SWD under
proposed 261.4(a)(12), would not be covered by a hazardous
waste listing that would have applied to the oil-bearing
secondary material itself (e.g., K051, API Separator Sludge)
but for the applicability of the exclusion.  Since this was
not intended by the proposed exclusion, EPA is considering
clarifying that discarded solid residuals (as defined in 40
CFR 261.2) from such a unit or process are covered by the
original listing that otherwise would have applied to the
oil-bearing secondary material.

API does not believe that the "loophole" suggested in Mr.
Bussard's letter is a reasonable construction of the
proposed exclusion.  Thus, API does not believe that any
revision of the exclusion is needed.  However, if EPA in its
judgment feels that clarification must be made, such
clarification can be provided in the preamble to the final
rule (EPA's Option 1), with clear examples of when a listing
is applicable to such discarded solid residuals and when it
is not.  This is EPA's simplest option, allowing the Agency
to clarify the scope of the exclusion language, while
maintaining EPA's ability to meet its May 1998 deadline for
promulgation of a final rule.  Further, preamble language
clarifying the rule's intent would establish a reasonable,
contemporaneous interpretation that would support EPA's
position in the event of a legal challenge to the scope of
the rule.  In fact, preamble language typically has been
deemed sufficient to uphold the Agency's position in court.

API suggests that the following language be included in the
preamble to the final rule:

     "With today's rule, an exclusion from the definition of
     solid waste has been established for oil-bearing
     secondary materials that are recycled in the refining
     process.  EPA has determined that reinserting these
     secondary materials is a beneficial recycling practice,
     reducing waste volumes while recovering valuable oil to
     be used as a raw material in the production of fuels or
     other petroleum products.
     
     "One commenter has suggested that the existing language
     of this exclusion contains a potential  loophole' that
     would allow discarded materials generated by an oil
     recovery unit (e.g., a centrifuge) to escape the
     hazardous waste listing that would otherwise apply in
     the absence of the exclusion.  This was never EPA's
     intent.
     
     "It is true that EPA intended (and still intends) that
     the exclusion attach at the point of  generation' of
     the oil-bearing residuals to be recycled.  However, EPA
     did not intend for the exclusion to apply to the solid
     wastes that are discarded after completion of oil
     recovery processes that precede insertion of the
     excluded materials into the refining process.
     
     "As an example, API separator sludge that is simply
     disposed of is a solid waste and bears the listed
     hazardous waste code K051.  However, if the sludge from
     the separator is destined for oil recovery in an oil
     recovery unit, it is neither a solid nor a hazardous
     waste until after completion of oil recovery.  The
     recovered oil and any other oil-bearing residuals
     generated by the oil recovery unit that are destined
     for insertion into the refining process (e.g., a coking
     unit) continue to be excluded under 261.4(a)(12). 
     However, after completion of any oil recovery process
     preceding the insertion of an oil-bearing secondary
     material into the refining process, any residual that
     is discarded (i.e., not destined itself for reinsertion
     into the refining process, or, in the case of
     wastewaters, not discharged into the wastewater
     treatment system), and is not otherwise excluded under
     the definition of solid waste, is a solid and hazardous
     waste and bears the K051 waste code."
     
API urges the Agency to clarify the intent of the exclusion
using preamble language.  If, however, EPA concludes that
preamble language such as that furnished above is
insufficient to close the perceived "loophole," then API
suggests amending the listing description for refining
wastes.  This amendment would state that solid residuals
remaining after completion of oil recovery that are not
reinserted into the refining process would bear the listing
that would otherwise apply in the absence of the exclusion.
This language would be included as a new subsection (e) to 
261.30.  Suggested language for this new subsection
follows:

          (e) Oil-bearing secondary materials that would be
     listed as hazardous wastes F037, F038, K048, K049,
     K050, K051, or K052 [add new listings, if any], but for
     the exclusion in 261.4(a)(12), are not solid or
     hazardous wastes if they meet the terms of
     261.4(a)(12); provided, that any materials that remain
     after completion of oil recovery and that meet both of
     the following conditions are solid and hazardous wastes
     and bear the listed waste codes that would otherwise
     apply in the absence of the 261.4(a)(12) exclusion: 
     
          (1) the materials are not destined for
          insertion into the petroleum refining process, or,
          in the case of wastewaters, are not discharged
          into the wastewater treatment system; and
               (2) the materials meet the definition of
          solid waste in 261.2, and are not otherwise
          excluded from the definition of solid waste under
          any provision of this Part. (API)
          
          Response: The Agency thanks the commenter for its
comment
and input on this issue.  In today's final rule, EPA
clarifies that the exclusion from the definition of solid
waste for oil-bearing secondary materials returned to the
refining process only extends to materials that are actually
re-inserted into the refinery process.  In cases where oil-
bearing secondary materials are reclaimed prior to re-
insertion, any residuals that may result from reclamation
which are not returned to the refinery process, and
therefore may be discarded, retain the hazardous waste
listing.  The Agency modified the proposed listing
description for F037 to include any residuals that result
from the processing of listed hazardous wastes that will be
disposed.  The Agency decided to include this clarification
within the regulatory language so that the rules are
explicit and to ensure that there is a requirement to manage
residuals from the reclamation of hazardous secondary
materials as hazardous wastes.  

Comment 2: NPRA understands the concern of the commenter
identified in your letter that the proposed exclusion could
be construed to mean that the solid wastes resulting from
the recovery of oil from secondary oil-bearing residuals
would not be covered by a hazardous waste listing that would
have applied to the secondary material itself, but for the
proposed exclusion.  NPRA agrees with EPA that it was not
the intention of the proposed exclusion to change the status
of these residues listed as hazardous waste.

Although NPRA believes that the proposed exclusion could be
clarified in the preamble (Option 1) to the rule, we agree
with the Agency's suggested approach describing Option 3
that solid wastes resulting from the recycling of EPA
hazardous waste codes F037-38, K048-52 and any newly listed
wastes that are not reinserted into the petroleum refining
process retain the hazardous waste listing.  Further, we
agree with and support the suggested language for Option 3
that will be included in the comments of the American
Petroleum Institute (API).

Response: The Agency thanks the commenter for its comment
and input on this issue.  In today's final rule, EPA
clarifies that the exclusion from the definition of solid
waste for oil-bearing secondary materials returned to the
refining process only extends to materials that are actually
re-inserted into the refinery process.  In cases where oil-
bearing secondary materials are reclaimed prior to re-
insertion, any residuals that may result from reclamation
which are not returned to the refinery process, and
therefore may be discarded, retain the hazardous waste
listing.  The Agency modified the proposed listing
description for F037 to include any residuals that result
from the processing of listed hazardous wastes that will be
disposed.  The Agency decided to include this clarification
within the regulatory language so that the rules are
explicit and to ensure that there is a requirement to manage
residuals from the reclamation of hazardous secondary
materials as hazardous wastes.

Comment 3a: As EPA correctly observed, the proposed
recycling exclusion as currently worded could allow
reclamation residues to escape RCRA regulation, since the
listings may no longer apply to the residues.  Given the
limited scope of the existing toxicity characteristic, and
the extensive resources devoted to listing the various
wastes, this result would be both unprotective and wasteful
of Agency efforts.  Moreover, EPA relies solely upon the
listing process to regulate sludges destined for
reclamation, therefore if the reclamation residues
themselves receive subsequent reclamation, EPA may
unknowingly lose jurisdiction over the subsequent
reclamation and reuse steps (and their residues) entirely.

The Agency identified three options for closing this
apparent loophole.  Under the first option, EPA would merely
include preamble language asserting RCRA jurisdiction over
reclamation residuals not reinserted into the refinery
process.  Under option 2, a condition to the proposed reuse
exclusion would be added indicating the residuals not
reinserted into the refining process must be managed as a
listed hazardous waste.  Under option 3, EPA would modify
the existing and new listings to expressly include
reclamation residuals not reinserted into the petroleum
refining process.

EPA proposed option 3 as the clearest and most easily
enforced option, and we agree.  Option 1 is a non-starter
because authorized states are not necessarily bound by
Agency guidance in preamble form, and preamble statements
are not reproduced in the CFR and thereby suffer from
communication lapses at the implementation level.  As a
general matter, the RCRA program
generally, and the recycling area particularly, suffers from
excessive reliance on Agency letters, memoranda, guidance,
and preambles that are difficult to assimilate in a
comprehensive manner.  EPA should not unnecessarily
contribute to this morass in the instant rulemaking.      

Option 2 needlessly adds a layer of complexity for
enforcement purposes, and is therefore less desirable than
option 3.  Under option 2, the reclamation residuals may be
regarded as exempt from the point of generation unless and
until the conditions are violated.  Where a waste is shipped
from one refinery to another for reclamation and reinsertion
into the refining process, but for some reason the second
refinery elects not to reclaim the waste and/or the
reclamation residuals, it is unclear when the violation of
the conditional exclusion occurred for enforcement purposes
and who is responsible for any resulting non-compliance.  In
this context, the waste/residuals appear to move in and out
of the regulatory system, depending upon events yet to occur
(i.e., final disposition of the material).  However, if the
hazardous waste listing includes both the waste and the
reclamation residuals, it is clear the original generator
bears the ultimate responsibility for the management of the
waste, given the scope of the underlying listing.  This is
where primary responsibility for waste management belongs,
with the party that first determines how the waste will be
managed. 

Response: The Agency thanks the commenter for its comment
and input on this issue.  In today's final rule, EPA
clarifies that the exclusion from the definition of solid
waste for oil-bearing secondary materials returned to the
refining process only extends to materials that are actually
re-inserted into the refinery process.  In cases where oil-
bearing secondary materials are reclaimed prior to re-
insertion, any residuals that may result from reclamation
which are not returned to the refinery process, and
therefore may be discarded, retain the hazardous waste
listing.  The Agency modified the proposed listing
description for F037 to include any residuals that result
from the processing of listed hazardous wastes that will be
disposed.  The Agency decided to include this clarification
within the regulatory language so that the rules are
explicit and to ensure that there is a requirement to manage
residuals from the reclamation of hazardous secondary
materials as hazardous wastes.  

Comment 3b: Significantly, none of the proposed options are
apparently intended to address whether and under what
circumstances the use of hazardous wastes in the coking
quench process constitutes legitimate recycling, and thus
falls within the exempt "reinsertion into the refining
process".  In comments filed July 11, 1997, a host of issues
were raised regarding this practice, particularly since the
exemption as proposed would apply to any "oil-bearing
residual" without regard to the actual oil content of the
waste or its other physical or chemical properties.

Notwithstanding additional documents filed by the petroleum
industry well after the close of the comment period, EPA
knows very little about the coking quench process, including
important facts related to the legitimacy determination.  In
the remainder of these comments, we will highlight some of
these important unknowns.  

However, it must be noted from the outset that EPA should
have fully investigated this practice before proposing the
coking exclusion almost two years ago.  The lack of
awareness then that hazardous wastes were inserted for
quenching purposes, coupled with the gaps in the Agency's
current knowledge two years later, is indicative of the lack
of Agency effort scrutinizing, verifying, and investigating
the recycling issues in the instant rulemaking.  EPA must
undertake its own inquiry into how the quench cycle process
works; the types, quantities, and physical/chemical
characteristics of wastes that have been or may be employed
for this purpose; and the economics associated with this
practice; rather than simply accept industry submissions at
face value.  

Response: EPA made its final decision regarding the
exclusion from the definition of solid waste for oil-bearing
secondary materials generated and reused by petroleum
refineries based upon a measured assessment of information
made available to the Agency.  This included data and
information provided to the Agency by parties both
supporting and opposing the proposed exclusion, as well as
information contained in available literature the Agency's
own engineering assessments and calculations.

Although it is the Agency's objective to fully investigate
all the potential consequences of a proposed Agency action,
one purpose of the publishing a proposed rule and soliciting
public comment on the Agency's proposal is to obtain
additional information that may bear additional insight
and/or result in a conclusion that the Agency must conduct
additional analyses prior to rendering a final decision.  In
the case of the Agency's proposed exclusion from the
definition of solid waste for certain oil-bearing secondary
materials inserted into the petroleum refining process,
issues raised and information provided by commenters as a
result of the proposed rulemaking did supply the Agency with
cause to revisit the proposed exclusion and conduct
additional analyses.

Comment 3c: Existing Agency guidance exemplified by the
April 26, 1989 Lowrance Memorandum provides a list of
factors that should be considered in a recycling legitimacy
determination.  EPA lacks substantial information relevant
to many of these factors, as illustrated by the following
questions and associated discussion in the footnote texts.

Is the Secondary Material Analogous to the Raw Material?

     1.  What is the oil content of raw materials typically
inserted into the coker as feedstocks?  How does this oil
content compare to the range of 1-21% cited by Mobil as
typical of hazardous wastes used for quench cycle purposes,
particularly at the lower end of that range?

     2.  If the hazardous wastes contain valuable
hydrocarbon, why aren't they inserted into the coker as
feedstocks?  What other physical or chemical properties of
the listed wastes differ from coker feedstocks?

     3.  The "recycling" that purportedly occurs in the
coker quench process consists of oil recovered and
reprocessed at the refinery into transportation fuels, and
the enhanced fuel value of the coke.  What percentage of the
hydrocarbon used in the quench cycle is recovered and
further processed at the refinery, and how much remains in
the coke?  If this percentage is waste- dependent, what are
the factors that determine the relevant proportion, and what
is the proportion for each waste potentially eligible for
the exclusion, particularly those wastes with higher boiling
points and/or low oil content?  How do these rates compare
with the reported 70% recovery rate for reprocessing
hydrocarbon at the refinery associated with coker
feedstocks? 

     4.  According to Mobil, it is recovering 125,000
barrels of crude oil equivalent through the MOSC process at
5 refineries.  How much of this crude oil equivalent
includes oil recovered in the centrifuge or other
preparation steps preceding actual insertion into the coker
for quench purposes, and how much of this "equivalent"
reflects purported increases in the fuel value of the coke
itself? Does the rate of crude oil equivalent recovered (for
liquid fuel processing at the refinery) attributable solely
to the quench process differ depending upon whether the
waste receives pre-treatment prior to coker insertion, such
as centrifugation or filtration?  If yes, what factors
determine the recovery rate for wastes receiving
pre-treatment?  

Response:  First, as stated previously, the oil content of
the oil-bearing hazardous secondary materials typically used
in the quenching process ranges from 8% - 40%, although the
typical secondary materials have an oil content around
10%.   Even at the lower end of that range, as explained
in earlier responses, it is clear, based on standard
engineering principles relating to hydrocarbon boiling
points, that oil recovery of a light hydrocarbon fraction
can and does occur in quench coking, and that the recovery
efficiency is comparable to that of conventional coking. 
Therefore, the EPA does not believe that oil content per se
is the determinative factor here.  The fact that most of the
oil present is recovered as a light fraction at an
efficiency equal to the conventional coking is the more
critical fact.  (See 53 FR at 522 (Jan. 8, 1988) noting that
the so-called sham recycling criteria are to be considered
on a case-by-case basis with the weight given any particular
factor varying as appropriate under the circumstances; the
same language appears in the Lowrance Guidance Memorandum
referred to by the commenter.)

Second, the presence of water in the oil-bearing secondary
materials (due to the fact that many are recovered from
wastewater treatment systems) precludes their insertion into
the normal coking process along with resid feedstock.  This
is because the temperatures in the coker along with the
manner in which it is operated (e.g., enclosed device) are
incompatible with water, which would produce potentially
dangerous pressures as a result of the resultant water
vapor.

Third, based on standard engineering principles relating to
hydrocarbon boiling points, temperatures experienced during
the quench cycle, and the effect of lowered partial
pressures due to the presence of steam, oil recovery of a
light hydrocarbon fraction can and does occur in quench
coking, and that the recovery efficiency (~70%) is
comparable to that of conventional coking.  The recovery
efficiency as a function of oil content was already
addressed above.  Regarding whether recovery efficiency may
be waste dependent, the Agency points out that the exclusion
is limited to oil-bearing materials generated at petroleum
refineries, and it is data from these materials provided by
the industry that EPA found most persuasive (see earlier
responses) while making its assessment.  The effect of
higher boiling point hydrocarbons could result in a lower
recovery efficiency; however such characteristics are not
consistent with the data the Agency relied upon in making
it's determination.  However, should recovery efficiencies
actually be significantly lower than suggested by the data,
due to differing feedstock characteristics or operating
conditions, the Agency would question the legitimacy of the
activity.

Fourth, according to the information provided by the
industry, it is desirable from an operations standpoint to
recover as much free oil as is practicable prior to the MOSC
(quench coking) process.  However, the 125,000 barrels of
crude oil equivalent referred to by the commenter appears to
include oil recovered in the preparation steps as well as
oil recovered in the MOSC process.  The Agency does not
believe the hydrocarbon recovery efficiency in the quench
process (~70%) (calculated based on documented boiling point
ranges and simulations using actual refinery-generated
secondary materials at temperatures experienced in the
coker, 600 - 800 degrees F), would depend upon the amount of
de-oiling prior to coker insertion.  The manner in which
recovery efficiency is calculated in simulations submitted
by industry is a function of the boiling point range of the
hydrocarbons present, and the documented temperatures that
exist during the quench process.

As noted earlier, the Agency does not believe that a direct
comparison of quench coking with conventional coking is the
most germane comparison for determining sufficient oil
content to judge the legitimacy of reusing secondary
materials.  The quench coking process exists to recover
hydrocarbons which are not amenable to conventional coking. 
Hence the fact that the feed to quench coking is lower in
oil content is not determinative of whether quenching is a
legitimate recovery process.  As explained in earlier
responses, however, it is clear, based on standard
engineering principles relating to hydrocarbon boiling
points, that oil recovery of a light hydrocarbon fraction
can and does occur in quench coking, and that the recovery
efficiency is comparable to that of conventional coking.

The petroleum refining process is a continual hydrocarbon
recovery process.  Different steps in the process recover
hydrocarbons differently.  The refinery processes and
operating procedures are designed to separate and process
into products as much hydrocarbon as possible from the crude
oil feedstock,; in other words, to prevent as much oil from
making its way into these secondary materials as possible. 
The oil that does make its way into these secondary
materials is generally considered unavoidable and
inevitable, or in some cases, too much oil in these
secondary materials is evidence of a problem with some
aspect of the overall refining process or of the wastewater
treatment system. These same factors also explain to some
degree the variability in the oil content of secondary
materials used for quench coking: the same materials are
used but the oil content varies depending on the daily
efficiencies of the refining process and wastewater
treatment system. The coking process is designed to remove
additional hydrocarbons from materials that have a higher
solids content.  Placing oil-bearing secondary materials
that contain high solids content in the initial primary
petroleum refining processing steps with crude oil
feedstocks could harm that part of the production process
that is not designed to recover hydrocarbons from oil-
bearing secondary materials.  However, the Agency does not
believe that the premise that oil-bearing secondary
materials cannot be inserted into the initial stages of
production process is sufficient for determining whether or
not the secondary materials maybe legitimately reused when
returned to other parts of the production process.  

As with other side streams generated by one process and used
as feedstocks to other production processes, conventional
and quench coking operations constitute a link in the multi-
step chain of processing steps designed to recover as much
of the hydrocarbon value from the original crude oil
feedstock as possible.  Thus, there are arguably aspects of
this activity that lead one to conclude that the oil-bearing
hazardous secondary materials used in the quenching process
can be considered, for regulatory purposes, as part of an
on-going production process and hence classified as an
activity not subject to RCRA jurisdiction.

The Agency is assured that use of hazardous secondary
materials in the quenching process is a legitimate activity
warranting an exclusion from the definition of solid waste. 
The primary purpose of the activity is the recovery of the
remaining hydrocarbon values in the oil-bearing secondary
materials (with the addition of carbon and energy value to
the co-product coke), using the existing heat energy
contained in the coke product after the conventional coking
process. 

Comment 3d:

How Much Value Does the Quenching Process Add?

     1.  Where the hydrocarbon is not recovered and
processed at the refinery, what is the value added to the
petroleum coke of the hydrocarbon remaining in the coke?  Is
the price of petroleum coke higher as a result of using
hazardous wastes in the quench cycle?  Is there any
documentation to this effect?  

     2.  Is the potential value added to the coke
waste-dependent as well, and upon what factors does it
depend?  Can some oil-bearing residuals actually detract
from the value of the coke by contributing to a higher ash
content?

     3.  Are the hazardous wastes inserted into the coker
for cooling purposes as safe and effective a coolant as
water?

Response: In evaluating whether the use of oil-bearing
secondary materials in the quenching process provides a
beneficial contribution to the coke product or process, the
Agency notes that the main purpose of the petroleum coking
unit is to recover hydrocarbons from the oil contained in
the feedstocks for further refining.  Similarly, the main
purpose of using the secondary materials in the quenching
process is the energy-efficient recovery of hydrocarbon from
the residual oil in the oil-bearing secondary materials. 
Concerning the issue of net contribution to the coke product
(i.e., added energy value v. added ash content), the
petroleum industry maintains that the additional ash content
is insignificant and points to the amount of coke product
produced per cycle (ranging from about 400 to 800 tons) that
would be endangered if the ash content (as well as the VCM
level) contributed during the quenching process was
sufficient to lower the value or marketability of the coke
product.  Based upon data provided to the Agency by the
petroleum refining industry, the Agency notes that coke
product produced using hazardous secondary materials in the
quenching process is not significantly different from coke
produced without using secondary materials in the quenching
process.  Further, EPA notes that anode-grade coke, the most
high-valued coke with the most stringent product
specifications, can be produced using these secondary
materials in the quenching process.  Given that the
recovered hydrocarbon is the primary product of using the
secondary materials in the quenching process, the simple
fact that the coke product (i.e., the co-product) continues
to meet the applicable product specifications and shows no
appreciable increase in risk carries more weight in the
Agency's evaluation.  Thus, evaluation of contribution or
non-contribution to the coke product is not the sole
relevant inquiry, or even the principal one.

Regarding the comparisons of secondary materials with
cooling water, the cooling water serves to quench the coke
bed.  The Agency does not view the secondary materials as a
substitute for quench water.  However, the quench water also
provides the means by which these materials are conveyed
into the coker to take advantage of the latent heat present.

EPA also found persuasive industry's arguments that the
steam produced from the cooling water during the quench
process also provides additional recovery of light ends in a
manner similar to "steam stripping" of organics.

(See 53 FR at 522 (Jan. 8, 1988) noting that the so-called
sham recycling criteria are to be considered on a case-by-
case basis with the weight given any particular factor
varying as appropriate under the circumstances; the same
language appears in the Lowrance Guidance Memorandum
referred to by the commenter.)

Comment 3e:  Is There a Guaranteed Market for the End
Product?

     1.  Is the market for quench-derived petroleum coke any
different from the broader petroleum coke market? 

     2.  If not, why is the majority of petroleum coke
shipped overseas if its such a valuable fuel?  How will the
foreign market demand change if and when the countries
receiving the coke tighten their air emission standards?  

     3.  What effect, if any, will the new particulate
standards and upcoming global warming initiatives have on
the domestic and foreign use of petroleum coke?

     4.  Perhaps most importantly, are there relevant
industry specifications that would prevent sham recycling?

     5.  Are adequate records kept regarding the quench
cycle process and petroleum coke purchases?

Response:  EPA could not find any information supporting the
notion that there are distinct markets for coke produced
when secondary materials are introduced into the quench,
versus when they are not.  Information submitted by industry
supported their assertion that coke made with secondary
materials used in the quench cycle is not significantly
different from coke made without using secondary materials
in the quench cycle.

Regarding exports of petroleum coke, the Agency did not
perform detailed market analyses of the petroleum coke
market.  Information submitted in comments suggests that
U.S. petroleum coke production is increasing faster (due to
heavier crude slates) than the number of domestic users.

The Agency did not assess the effect of the new particulate
standards or global warming initiatives as part of this
rulemaking.  While obviously important, EPA does not regard
these questions as negating any of the analysis as to
whether the quench cycle -- which produces petroleum coke
identical to the coke from conventional petroleum coking --
should be viewed as part of petroleum refining.

Regarding sham recycling, see responses to previous comments
regarding industry specifications relevant to petroleum
coke, and the Agency's assertion that the principle
consideration overall is the legitimate light-end
hydrocarbon recovery.

Regarding adequate records, the Agency did not require any
recordkeeping in today's rulemaking for the exclusion for
oil-bearing hazardous secondary materials, beyond the
existing requirement that respondents in enforcement actions
must be able to document claims regarding recycling.  (40
CFR 261.2(f)).

In general, clearly there is a well-established end market
for the petroleum coke.  However, more importantly, as
previously mentioned, the quenching process recovers
petroleum as a light fraction; it does not just generate
coke.  Thus, evaluation of contribution or non-contribution
to the coke product is not the sole relevant inquiry, or
even the principal one.

Comment 3f:

What are the Economics of the Recycling Process?

     1.  Which oil-bearing residuals at the refinery are
chosen for insertion in the quench cycle, and on what basis
are they selected?

     2.  If the amount of hydrocarbon recovered for
processing at the refinery is waste-dependent, isn't the
economic value of the quench cycle process also
waste-dependent since the value of the coke itself is very
small or non-existent?

     3.  Did the use of hazardous waste in the quench cycle
increase significantly in response to the F037 and F038
listings in 1990 and/or the onset of the RCRA LDR program?

     4.  When one refiner ships waste to another refiner for
use in the coking quench process, what are the economics of
the transaction?  Who is paying who, and how much?  If the
refineries are part of the same company, how is the internal
cost accounting handled between plants? (EDF, L0009)

Response: 

Information from the industry indicates that both hazardous
and non-hazardous oil-bearing secondary materials have been
used in the quench process.  The Agency cannot comment
directly on the basis for selecting which oil-bearing
residuals are "chosen" for insertion in the quench cycle, as
these determinations are made by the refineries themselves
based on site specific factors.  

Regarding the possible trends in use of quench coking, see
earlier response to comment 2c in Section II.b.2.c. of this
document.

(See 53 FR at 522 (Jan. 8, 1988) noting that the so-called
sham recycling criteria are to be considered on a case-by-
case basis with the weight given any particular factor
varying as appropriate under the circumstances; the same
language appears in the Lowrance Guidance Memorandum
referred to by the commenter.)


Comment 4:  The October 1, 1997 letter makes a necessary and
important clarification to the scope of the proposed
rulemaking.  However, in light of the refining industry's
garbage-can-approach to waste recycling through the practice
of dispersion of waste by quench, the industry's record for
reporting violations, and the vast variations in
"oil-bearing" 
wastes generated by the 13 enumerated SIC codes,
the Proposed Rule is still overly broad and fraught with
pitfalls and loopholes.  Unless clarified to apply to
recycling residuals disposed of into the quench, the October
1 modifications, even if executed through Option 3, are
insufficient to rectify the other structural deficiencies
and the environmental and technology disincentives created
by the proposal.  The following summarizes general comments
and concerns with the new proposed petroleum refining waste
listing.

     Allowing reinsertion of any waste that contains any
oil-
     bearing secondary material is an invitation to disaster
     and by virtue of failing to specify whether any minimum
     oil content is required in the hazardous oil-bearing
     secondary material.  
     There are no specifications for wastes qualifying for
     this recycling exemption.
     The proposal allows the establishment of virtually
     unregulated commercial recycling facilities on and off
     the petroleum refinery sites, while requiring that
other
     RCRA commercial facilities must meet the most stringent
     waste management standards in existence.  
     How will the Agency even monitor for "speculative
     accumulation?"  What records are required to
demonstrate
     the date a waste was initially stored?  What is "feed
     stock-like" in terms of original oil content?

 Response: Under section 261.2 (f), persons storing excluded
materials have the burden of demonstrating (in an
enforcement action) that they are meeting the terms of the
exclusion.  Refineries consequently must be able to
demonstrate the duration of storage of all secondary
materials which are excluded (including, but not limited to,
those processed by quench coking).  The rule does not
specify a particular record-keeping regime in order to
provide flexibility for each facility to be able to
demonstrate that there is no speculative accumulation in a
manner best fitting the facility's operating practices. 
(EPA notes that there is no explicit recordkeeping
requirement for any other industry managing excluded
secondary materials either.) 

The Agency is unclear what the commenter refers to regarding
the term "feed stock-like" and "original oil content".  The
final rule recognizes the continued extraction of
hydrocarbon values from in-process refinery materials, some
of which may be considered "feedstocks," but this rule does
not specify a specific oil content for those materials.  The
definition of  "recovered oil" in 40 CFR 261.4(a)(12)(ii)
does imply that this material is mostly "oil"; however the
Agency believes recovered oil will be inserted into refinery
units other than quench-coking because it is directly
amenable to refining.

Comment 4 (cont'd):

     As written, this proposal effectively allows petroleum
     coke permeated with hazardous metals and other
substances
     to escape classification as "solid waste,"  petroleum
     coke may be shipped to other countries in violation of
     RCRA and other applicable hazardous waste treaties and
     conventions.
     Jurisdictional exclusion of oil-bearing materials
creates
     the opportunity for loophole non-RCRA regulated
     facilities outside refineries that receive and process
     hazardous waste prior to shipment for insertion into
     refineries.
     Jurisdictional exclusion of oil-bearing materials
     undermines tracking and storage requirements for
     enforcement of RCRA regulations governing the mis-
     handling of hazardous wastes.  

Response:  The Agency is requiring that the materials
excluded under this provision of today's rule be returned
directly to a refinery for insertion.  While this is not an
issue if materials are recycled on site, EPA shares the
commenter's concerns about situations where these materials
are generated at one refinery for insertion into another,
but are instead processed at an intermediate, non-refinery
facility.  In cases where materials generated at one
petroleum refinery are to be recycled at another refinery,
EPA has added to the regulatory text of the exclusion that
these secondary materials must be sent "directly to" another
petroleum refinery.

Comment 4 (cont'd):

Specific Comments on the Policies Proposed in the October 1,
1997 Letter

The October 1, 1997 letter seeks additional comment on the
proper way to clarify the regulatory status of residuals
that result from the insertion of oil-bearing hazardous
materials into the refining process.  EPA proposes three
different options of which we believe only the third would
provide for an acceptable enforceable situation.  That is,
to change the listing description for refining waste to
include any residuals from the processing of listed waste.

Based on staff discussions on October 31, 1997, it appears
that the language of the October 1, 1997 letter to add to
the listing description for F & K wastes "any residuals from
the processing of listed wastes" is not necessarily limited
to those residuals that are merely land applied or stored on
the ground.  We support the October 1 language change as
reflected in Option 3.  However, the language of the
regulation must also be clarified and interpreted to include
the vast majority of such "petroleum refining residuals"
that are slurried with water and merely re-injected,
ostensibly as quench/cooling water.  Finally, the language
must be clarified to prohibit unpermitted commercial
recycling operations at refinery sites and prohibit waste
acceptance from outside of the refinery.

Quench-side coking, just as any other recycling practice,
must meet the legitimacy/Sham Recycling Criteria in order to
be considered a valid recycling practice.  We believe the
evidence shows (see Section III of response to October 1st
letter) that the vast majority of these practices are
nothing more than Sham Recycling.  In other words, quench-
side coking practices today do not legitimately meet the
Sham Recycling Criteria.

CONCLUSIONS

In conclusion, unless the Agency includes recycling
residuals disposed of into the quench within the meaning of
"any residuals from the processing of listed wastes" as per
Option 3, it will not only ensure that the coker will become
the omnibus and unregulated "trash can" for petroleum
industry wastes, it will also be an open invitation to waste
generators to claim that their hazardous wastes contains
enough oil to be deemed "oil-bearing secondary material"
qualifying for this unprecedented and unqualified exclusion.



Secondly, if the Agency truly seeks to establish incentives
for technological alternatives to landfilling and
incineration wants to encourage proper recycling, and
recover the maximum petroleum values for use here at home,
then it should require full and proper treatment of the LDR
constituents contained in these petroleum wastes, which in
turn would encourage the use of proper recycling
technologies such as gasification and desorption, both of
which are being used at only a handful of refining sites
today.  By doing so it will maximize the fuel and energy
value return to this country by producing high grade fuels
that can be used to produce additional gasoline, heating
fuel, etc.  Rather than encourage the use of quench-side
coking, which at best is 20% efficient at recovering
petroleum values, it should encourage the use of high
recovery technology, such as desorption and gasification,
which converts nearly 100% of the remaining petroleum values
to recoverable petroleum units for use in the U.S., not as
petroleum coke for export.  Irrespective of whether the
Agency's aim is to recover petroleum values, or to protect
public health, neither are served in the least by
encouraging the addition of hazardous waste to the world's
dirtiest fuel, petroleum coke.  In conclusion, the Proposed
Listing Rule will: 

     Exacerbate the current practice of dispersion of
     hazardous waste into fuel coke.  This practice provides
     for the release of TCLP-UTS listed metals and PAH's
into
     the environment under the guise of recycling;

     Create a new class of hazardous waste disposal
facilities
     that is unchecked by RCRA controls and, therefore,
     competes unfairly with RCRA compliant commercial
     facilities;

Response: The Agency disagrees that this activity is
"disposal;"  rather, it is the recovery of vestigial
hydrocarbons in a process that is not part of the waste
disposal problem.

Comment 4 (cont'd):

     Cloud enforcement issues and creates double standards
     regarding the transportation and storage of hazardous
     wastes for any hazardous waste that contains de minimis
     quantities of oil and was generated by the petroleum
     industry;

     Punish facilities that have been RCRA compliant and
     rewards refiners that operate non-RCRA compliant
     facilities;

     Undermine the growth and development of responsible
     recycling technologies and practices.

RECOMMENDATIONS

In short, the Agency has two courses it can follow: 
finalize the rule as proposed and stimulate unregulated
production of the world's dirtiest fuel so it can be shipped
to Ghana; or it can modify the proposal in accordance with
our recommendations which will stimulate the growth of
currently available technology to safely remove metals and
other toxics while maximizing the recovery of quality
hydrocarbon values for use at home.

We recommend the following modifications to the policy and
language of the recycling provisions of the proposed
Petroleum Listing Rule:

     Include petroleum recycling residuals introduced into
the
     quench under the definition of "residuals from the
     processing of listed waste" for purposes of Option 3,
and
     thereby prohibited from being introduced to the quench
     unless they meet one of the two following criteria: 1)
     the petroleum values of the materials being introduced
     are comparable to that of crude oil feedstocks (i.e.,
90%
     oil or greater) and; 2) that the rates of recovery of
     petroleum values in the quench is comparable to that of
     the recovery rate from crude oil distillation itself
     (i.e., 90% or greater) exclusive of whatever residuals
     are deposited into the coke product itself;  

     Apply these same principles to other insertion points and
     "feedstocks;"

     Withhold issuance of the Proposed Rule until
"feedstock-
     like" and "normal process streams" can be defined and
     minimal storage, tracking, acceptance and reporting
     requirements can be developed;

     Prohibit the acceptance and introduction of petroleum
     wastes into the coker from facilities other than the
ones
     at which the waste was generated, unless a RCRA permit
     has been obtained.  This is to ensure that any facility
     that engages in commercial acceptance of a potentially
     broad array of wastes complies with the basic public
     health and environmental protections that the Agency
has
     established for any such commercial facility.  The
Agency
     has established many preventive measures that are
     necessary for commercial hazardous waste facilities,
this
     includes: waste analysis, air emission controls,
     containment, storage, runon/runoff controls, waste
     compatibility analysis, record keeping and residue
     analysis, as well as proper residue management.  Given
     the breadth and of the proposed exclusion (i.e., "any
     hazardous oil bearing secondary material... introduced
     into any aspect of the refining process...") such a
     limitation is absolutely necessary unless the Agency
     seeks to establish petroleum refineries as the new
     locality of unregulated commercial operations;

     Promulgate regulations that encourage rather than
     discourage the development of responsible recycling
     technologies and practices that recycle hydrocarbon to
     hydrocarbon, water to water and solids to solids rather
     than metals and dirt to fuel.  Accomplish this goal by
     imposing standards for ash and Btu content for wastes
     recycled into fuel;

     Consult with the enforcement arms of Region VI and NEIC
     before proceeding with this rulemaking to determine how
     those enforcement initiatives may be compromised by an
     exclusion that effectively deregulates the petroleum
     industry;

     Modify the proposed revision to 40 CFR 261.4(a)(12) to
     ensure that the exclusion will apply only when
     legitimate, as opposed to sham, recycling is occurring.

     The Agency must expressly state that this revised rule
is
     in no way intended to create an exception from the
     established Sham Recycling Criteria and that, indeed,
any
     person attempting to qualify under the new rule will be
     subject to a full showing under the Sham Recycling
     Criteria. (SEA, L0010, 0015)

Response: In today's final rule, EPA clarifies that the
exclusion from the definition of solid waste for oil-bearing
secondary materials returned to the refining process only
extends to secondary materials generated by the petroleum
refining sector and only to materials that are actually re-
inserted into the refinery process.  In cases where oil-
bearing secondary materials are reclaimed prior to re-
insertion, any residuals that may result from reclamation
which are not returned to the refinery process, and
therefore may be discarded, retain the original hazardous
waste listing.  The Agency modified the proposed listing
description for F037 to include any residuals that result
from the processing of listed hazardous wastes that will be
disposed.  The Agency decided to include this clarification
within the regulatory language so that the rules are
explicit and to ensure that there is a requirement to manage
residuals from the reclamation of hazardous secondary
materials as hazardous wastes.

Data available to Agency indicate that hydrocarbons are
recovered from oil-bearing secondary materials when these
materials are fed to the coker, including when these
materials are fed into the coker with the quench cycle.  In
addition, data indicate that there are recoverable levels of
oil in sludges generated by petroleum refineries and
typically fed into the coker.  The metals levels in sludges
typically fed into the coker (e.g., sludges bearing
hazardous waste codes K048-K052) are, for the most part,
comparable to the concentration of metals in normal refinery
feedstocks.  Although the levels of lead and chromium in
these sludges may be higher than normal petroleum
feedstocks, the concentrations of these two metals in
petroleum sludges are expected to decrease due to changes in
the petroleum production process.   The NESHAPS standards
promulgated under the Clean Air Act will result in chromium
no longer being used in cooling towers.  Therefore, the
principal source of chromium contaminants in the production
process will no longer exist.  Lead levels in petroleum
sludges will continue to decline due to the phasing out of
leaded gasoline as a product line.  

Finally, analyses conducted by EPA confirm that the final
coke product is basically unchanged by the use of hazardous
oil-bearing secondary materials in the coking process.  In
addition, the final exclusion from the definition of solid
waste for oil-bearing secondary materials generated at
petroleum refineries and returned to the refinery process is
conditioned on there being no speculative accumulation of
the materials, on the materials not being placed on the land
prior to reuse and stored in a manner to minimize loss.  The
reuse of the secondary materials in the refinery process
must not result in the coke product exhibiting any of the
characteristics of hazardous waste.

Under the definition of speculative accumulation in 40 CFR
261.1(a)(8), a material is speculatively accumulated if: (1)
it is accumulated for recycling but no recycling market
exists, or (2) 75 percent of the material is not recycled
within a calendar year.  The 75 percent criteria is assessed
on a calendar year, so an initial inventory must be made on
January 1 of each year, and subsequently calculated on
December 31 of each year.  Persons accumulating secondary
materials that are exempt from the definition of solid waste
have the burden of proving that there is a feasible means of
recycling the material.  In addition, the persons
accumulating secondary materials have the burden of proving
that sufficient amounts of the secondary materials are
recycled within a calendar year.

EPA clarifies that the Agency is not including within the
scope of the exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911).  The Agency is basing its decision not to exclude
these secondary materials from the definition of solid waste
on the fact that EPA has very limited data from industry
demonstrating the chemical and toxic content of the
materials.  In fact, the Agency has no information on which
to base a finding that the use of oil-bearing hazardous
secondary materials originating in a non-refinery sector of
the petroleum refining industry in the coking process would
be anything other than the management of wastes (e.g.,
hazardous waste recycling) from that non-refinery sector. 
Oil-bearing secondary materials originating from non-
refinery sectors have the potential to be more waste-like
and thus do not warrant an exclusion, especially if their
ultimate use is in the quenching process.

The Agency also is requiring that the materials excluded
under this provision of today's rule be returned directly to
a refinery for insertion.  While this is not an issue if
materials are recycled on site, EPA has concerns about
situations where these materials are generated at one
refinery for insertion into another, but instead end up at
an intermediate non-refinery facility.  In cases where
materials generated at one petroleum refinery are to be
recycled at another refinery, to meet the conditions of the
exclusion the materials must be located either at the
generating refinery, at the receiving refinery, or must
otherwise be in transit between the two facilities.  This is
consistent with the argument that the exclusion is provided
on the basis that the secondary materials are being used
within the realm of on-going production in the petroleum
refining sector.

Also see response to comment 2 above.

Comment 5: Amoco does not believe that revision of the
proposed exclusion is necessary.  Amoco does not believe
that the "loophole" suggested in Mr. Bussard's letter is a
reasonable construction of the proposed exclusion.  Thus, no
revision of the exclusion is needed to close it.

Amoco prefers modification of the preamble to clarify the
intent of the proposed exclusion.  If EPA in its judgement
feels that clarification must be made, such clarification
can be provided in the preamble to the final rule (EPA's
Option 1), with clear examples of when listing is applicable
to such discarded solid wastes and when it is not.

Modification of the listing description for refining wastes
should not jeopardize the ability of the refineries to
continue to send refining residuals for use/recycle by
second party operations.  The Amoco Mandant Refinery
currently send filter cake, generated by filter pressing API
separator sludge, to the Dakota Gasification Company's (DGC)
Great Plains Synfuels Plant for recycling under a RCRA
treatability.  Amoco requests that this operation not be
jeopardized by the Agency's efforts to close a "loophole." 
Further, Amoco requests that modifications to the listing
description not preclude state approval of this practice
once the treatability study is complete.

Amoco Mandant Refinery urges the Agency to consider
including additional "refining processes" as receptors of
oil-bearing secondary materials excluded from the SWD. 
Specifically, the Agency is urged to exempt oil-bearing
refining residuals from the SWD if they are recycled to a
refining process, where such process may be a secondary
party coker or coal gasifier.  Amoco would like to see such
recycling recognized as equivalent to reinsertion in the
refining process from the standpoint of exempting this
material from hazardous waste listing.

EPA should consider coal gasification to be an equivalent
refinery process.  There is no practical difference, other
than the location of the operation, between sending filter
cake to a coker on the refinery or to a second party
gasifier.  In both cases, the filter cake is being used as a
substitute for the normal carbon source feed stock (heavy
oil for the coker, lignite for the gasifier).  In both cases
the organics in the filter cake are undergoing chemical
transformation to yield useful products (gasoline, jet fuel,
and diesel fuel from the coker, methane, phenol, cresylic
acid and ammonia from the gasifier), similar to organic
compounds from the normal feed stocks.  In fact, in some
U.S. refineries a gasifier is considered to be a refinery
operation.  Neither ownership nor location of a gasifier
impacts the environmental benefit of recycling filter cake
to the gasification process.  Gasification should be
considered to be (or to be equivalent to) a refining
process.

EPA should consider proximity benefits in including coal
gasification as an equivalent refinery process.  The Mandant
Refinery does not have a coker.  While the Mandant Refinery
could ship filter cake to a coker at another Amoco refinery,
the nearest is one thousand miles away from Mandant.  In
contrast, the Great Plains Synfuels Plant is 80 miles from
the refinery.  By recycling filter cake in the coal
gasifier, rather than in an Amoco-owned coker, fuel
consumption (and resultant vehicle emissions) to transport
the material is significantly decreased, as is the potential
exposure of the public.

Amoco wishes to emphasize that insertion of petroleum
refining residuals in the coal gasification process is an
environmentally sound method of turning potential waste
materials into useful products.  The Agency is urged to take
advantage of a legitimate recycling opportunity by
recognizing gasification as an equivalent refinery process
for the purposes of the proposed exclusion.  (Amoco, L0011)

Response: In today's final rule, EPA clarifies that the
exclusion from the definition of solid waste for oil-bearing
secondary materials returned to the refining process only
extends to materials that are actually re-inserted into the
refinery process.  In cases where oil-bearing secondary
materials are reclaimed prior to re-insertion, any residuals
that may result from reclamation which are not returned to
the refinery process, and therefore may be discarded, retain
the hazardous waste listing.  The Agency modified the
proposed listing description for F037 to include any
residuals that result from the processing of listed
hazardous wastes that will be disposed.  The Agency decided
to include this clarification within the regulatory language
so that the rules are explicit and to ensure that there is a
requirement to manage residuals from the reclamation of
hazardous secondary materials as hazardous wastes.

The commenter's request that the Agency consider including
additional "refining processes" (e.g., coal gasification) as
receptors of oil-bearing secondary materials within the
exclusion from the definition of solid waste for oil-bearing
secondary materials is beyond the scope of the current
rulemaking.   However, the Agency is considering the merits
of an exclusion from the definition of solid waste for oil-
bearing secondary materials returned to gasification
processes, in a recently published Notice of Data
Availability.

EPA clarifies that the Agency is not including within the
scope of today's exclusion oil-bearing secondary materials
generated outside the petroleum refining sector (i.e., SIC
2911) or re-inserted into any other processes other than the
petroleum refining processes.  The Agency is basing its
decision not to expand the exclusion further or to
additional secondary materials at this time on the fact that
EPA has very limited data from industry demonstrating the
chemical and toxic content of the materials.  In addition,
the Agency does not have sufficient information at this time
to evaluate the use of refinery residuals in other off-site
or non-refinery processes.
III. Land Disposal Restrictions - Revised Treatment
     Standards for Spent Catalysts from Hydrotreating
     (K171) and Hydrorefining (K172)

Comment 1:  Proposed Revisions to the UTS Standards

As explained in the Federal Register notice, EPA proposes to
revise the present UTS nonwastewater TCLP leachate values
for antimony, nickel, and vanadium as follows:

     The UTS for antimony would be decreased from 2.1 mg/l
to
     0.07 mg/l;

     The UTS for nickel would be increased from 5.0 mg/l to
     13.6 mg/l; and

     The UTS for vanadium would be increased from 0.23 mg/l
to
     1.6 mg/l.

In each case, the proposed standard reflects the higher of
the stabilization-based or HTMR-based calculations.  The
proposed standards for antimony and vanadium are based on
data from stabilization processes (which produced a higher
UTS level than the HTMR data), while the proposed standard
for nickel is based on grab sample data from INMETCO. 
Having reviewed the data, we believe EPA has properly
applied its BDAT methodology to calculate the proposed
revisions to the three standards. 

While the proposed changes to the antimony and vanadium
standards reflect stabilization data, we believe they can be
met by INMETCO's HTMR process as well.  Accordingly, based
on the data made available thus far, we support the new
values for antimony and vanadium.  We caution, however, that
the proposed revisions do not reflect grab sample data from
another HTMR operation which may submit such data within the
next few months.  See 62 FR 26041, 26047-26048 (May 12,
1997).  It is possible that data from that HTMR process may
support a higher standard for one or both of these metals. .
. .

. . .In sum, we believe the revised UTS standards that EPA
has proposed for antimony, nickel, and vanadium are
supported by the underlying data and are achievable by both
major treatment technologies.  Unless data from another HTMR
process support a higher standard for one or more of these
metals, the standards should be adopted as proposed. 
(INMETCO, 00003, pg 2)

Response:     The Agency concurs with the commenters and
also believes the BDAT methodology has been properly applied
to the available data to calculate the revised treatment
standards, and that the levels are achievable by both major
treatment technologies.  Based on data submitted in the
Phase IV rulemaking for nonwastewaters the treatment level
for antimony is finalized at 1.15 mg/L TCLP, the treatment
level for nickel is finalized at 11.0 mg/L TCLP, and the
treatment standard for the vanadium, which is applicable
only to K061, K171 and K172 as a constituent of concern in
these wastes, is finalized at 1.6 mg/L TCLP.  The Agency is
therefore promulgating these standards consistent with the
levels finalized in the Phase Four Rulemaking.  All other
standards are promulgated as proposed.

Comment 2:  Both the existing and the proposed UTS values
for nickel are based on sampling data for the slag produced
by INMETCO's HTMR process.  The present UTS level of 5.0
mg/l reflects INMETCO's monthly composite slag sampling
data, while the proposed value of 13.6 mg/l reflects grab
sampling data for INMETCO's slag.  Because "grab samples
normally reflect maximum process variability," a grab
sample-based standard calculated in accordance with EPA's
BDAT methodology ordinarily will be higher than a standard
based on composite sampling data. Thus, the fact that the
proposed grab sample-based UTS value for nickel exceeds the
old composite-based value is as expected.  Since EPA wishes
to determine compliance with UTS standards on the basis of
grab sampling, the proposed revision in the UTS level for
nickel is appropriate.

If it were based on the stabilization data considered by
EPA, the proposed standard for nickel would be lower. 
However, EPA's BDAT methodology quite properly sets the
UTS/BDAT standard at the higher of the HTMR-based or
stabilization-based level.  This is particularly
appropriate with respect to nickel because HTMR is the
"best" treatment technology for metals:  It is the most
matrix-independent; it recovers valuable resources; it
decreases the amount of waste sent for land disposal; it
incorporates metals that are not recovered in a stable slag
matrix; and it saves energy and pollution by reducing the
need to process virgin ore.  INMETCO, for example,
recovers and returns to commerce approximately 96% of the
nickel present in the secondary materials entering its
pyrometallurgical furnaces.  If, instead, these materials
were stabilized and landfilled, all of this nickel would be
buried in the ground rather than being reused productively.

Furthermore, the stabilization data considered by EPA in
this proceeding reflect the treatment of wastes having a
very low nickel content and very low nickel TCLP influent
values.  By contrast, nickel is a primary constituent in
the secondary materials processed by INMETCO.  The nickel
TCLP levels for many of these materials are orders of
magnitude higher than the TCLP levels for the wastestreams
represented in EPA's stabilization database.  It is not
surprising, therefore, that INMETCO's HTMR data (reflecting
the processing of high-nickel materials) produces a higher
UTS/BDAT standard than the stabilization data (reflecting
the treatment of wastestreams having a very low nickel
content). (INMETCO, 00003, pg 2)

Response:   The Agency is finalizing the treatment level for
nickel at 11.0 mg/L, which is slightly lower than the level
proposed and referenced by the commenter.  See response to
comment 1 for the Agency's decision to finalize the
treatment level for nickel at 11.0 mg/L.IV.  Other Comments

IV.A.     Conditional Listings

Comment 1a:  EPA Should Utilize Conditional Listings If Any
of the Proposed Residuals Are Listed

If EPA disregards the foregoing and decides that there is
adequate support in the record for listing CSO sediment or
spent hydroprocessing catalysts under some circumstances,
EPA should only list the affected residual in those specific
circumstances, using conditional listings or the concept of
"contingent management."  To conform to the principles
established in Dithiocarbamate Task Force v. EPA, 98 F.3d
1394 (D.C. Cir. 1996), the Agency should list residuals as
hazardous only where they are managed in a manner shown to
pose substantial risks.  (Mobil, 00002)

Response:   The Agency has decided not to proceed with a
conditional listing for CSO sediment.  This is discussed in
response to comment 1 in Section V.A. of the proposed rule
response to comment document.  EPA also does not think the
spent catalysts are good candidates for conditional listing
either; this issue is discussed in response to comment 1 in
Section V.H. of the proposed rule response to comment.

Comment 1b:  If EPA Lists CSO Sediment, It Should Only List
CSO Sediment That Is Subject To Land Treatment.

On the basis of population risk, CSO sediment does not pose
substantial risk under any management scenario.  Even if
negligible population risks are ignored and only individual
risks considered, EPA's risk assessments suggest that CSO
tank sediment only rises to a potential level of concern
when managed in land treatment units.  Therefore, if listed,
EPA should list CSO sediment only where it is land treated. 
EPA should not list CSO sediment disposed of in landfills. 
EPA's own contingent risk assessment for landfilling CSO
sediment indicates that potential individual risks are well
below concern thresholds, even with the generally
conservative assumptions used. (Mobil, 00002)

Response: See response to comment 1 in Section V.A. of the
proposed rule response to comment document.

Comment 1c:  If EPA Lists Spent Hydroprocessing Catalysts,
It Should Only List Hydroprocessing Catalysts That Are Land
Disposed

Negligible population risks suggest there is no sound basis
on which to find that spent hydroprocessing catalysts pose a
substantial hazard to human health and the environment. 
EPA's individual risk assessment projected substantial risks
only from disposal of hydrotreating and hydrorefining
catalysts in landfills.  While EPA did not perform a formal
risk assessment of hydroprocessing catalyst recycling/metals
reclamation, EPA did conclude that "based on EPA's
preliminary review of [the metals reclamation] industry, the
spent catalysts appear to be managed and processed in a way
that controls risks."  USEPA, Listing Background Document
for the 1992-1996 Petroleum Refining Listing Determination
at 79 (Oct. 31, 1995).

Even if the record supported listing the catalysts when they
are land disposed (Mobil suggests that it does not), it does
not support listing them when they are recycled.  EPA's own
statements and conclusions strongly suggest that recycling
of these catalysts does not pose substantial risks.  Since
eighty percent of the volume of such catalysts are typically
recycled, it would seem arbitrary to dismiss EPA's
conclusion that when recycled, "the spent catalysts appear
to be managed and processed in a way that controls risks." 
Id.  A listing of such catalysts would essentially ignore
this EPA conclusion and subject the eighty percent of these
residuals that are recycled to needless regulation.  In the
absence of a showing of substantial risk to counter its
tentative conclusion that there is no such substantial risk,
EPA should not list these catalysts when they are subject to
recycling/metals reclamation.  (Mobil, 00002, pg 3)

Response:  EPA disagrees with the comment, and continues to
believe that the risk analysis fully support listing this
waste.  See response to comment 8 in Section I.A.5 of this
document.  EPA believes that the catalyst wastes present
several risks beyond those necessarily associated with
landfill disposal, including pyrophoric properties and
significant levels of benzene and arsenic (all of which may
pose risks via pathways other than groundwater exposure,
including risks from improper storage or other handling, and
risks from uncontrolled air emissions from thermal
treatment).  Thus, this waste is not a good candidate for a
conditional listing.  Given the hazardous nature of this
waste, EPA believes it is entirely appropriate for it to be
transported and stored as hazardous waste before recycling. 
(See 40 CFR 261.6 for regulations applicable to hazardous
wastes that are recycled).  EPA points out that examples of
problems at sites recycling these wastes have been noted in
the record (see enforcement case described in the docket,
document #PRA-S0037).

Comment 2:  If EPA Lists Spent Hydroprocessing Catalysts, It
Should Only List Hydroprocessing Catalysts That Are Land
Disposed Off-site

EPA's risk assessments and supporting data on well distance
indicate that risks from on-site landfill disposal are
negligible.  For most on-site landfills, there is no
exposure and, therefore, no risk.  If EPA decides to list
spent hydroprocessing catalysts at all, spent catalysts that
are recycled or disposed of in on-site landfills should not
be listed, and any listing should be limited to spent
hydroprocessing catalyst disposed of in off-site landfills.
(Mobil, 00002, pg 3)

Response:  EPA's disagrees that the risks from disposal of
the spent catalysts in on-site landfills are negligible. 
The high-end groundwater risks given in the NODA for
hydrotreating catalyst ranged up to 8E-5, and the risks for
hydrorefining catalysts ranged up to 4E-4 (see 62 FR at
16752).  The risks for on-site landfill disposal were only
somewhat less than the risks for off-site landfills, so any
attempt to argue on-site disposal is safe is not valid. 
Furthermore, EPA's decision to list these wastes was also
based on the self-heating physical properties of these spent
catalysts. EPA observed and was told by catalyst reclamation
and refinery facility operators that these wastes exhibit
pyrophoric properties and do result in fires. 

Comment 3:  The Approach of Using Conditional Listings
Allows EPA to Target Wastes not Managed Correctly

EPA has the authority to interpret the statutory definition
of hazardous waste so that a waste which is otherwise
hazardous would not require regulation if properly managed
by a refinery.  After 16 years of experience with the
management of hazardous wastes, it is not necessary or
correct to assume that all residuals will be mismanaged and
therefore requiring them to be listed as hazardous wastes
under Subtitle C.  To the extent that EPA's analysis
identified risks, those risks were found primarily in the
landfill setting, and not at the refineries.  A more
targeted listing instead of "across the board" listing would
be more effective in achieving protection of human health
and the environment.  (NPRA, 00004, pg 5)

Response: The Agency has decided not to proceed with a
conditional listing for CSO sediment.  This is discussed in
response to comment 1 in Section V.A. of the proposed rule
response to comment document.

Comment 4:  Assuming EPA Decides To List Any of the
Residuals Under Any Circumstance, EPA Should Employ
Conditional Listings

As discussed above, EPA lacks record support for the
conclusion that any of the three residuals proposed for
listing should be listed.  However, assuming for the sake of
discussion that there were record support for listing CSO
sediment or spent hydroprocessing catalysts under some
circumstances, EPA should list such residuals only in those
specific circumstances, i.e., EPA should employ conditional
listings or the "contingent management" concept.

As API pointed out in previous comments, a listing that
encompasses wastes found to pose substantial hazards, as
well as substantial quantities of wastes that do not pose
substantial hazards, is not likely to survive scrutiny under
the court's analysis in Dithiocarbamate Task Force v. EPA,
98 F.3d 1394 (D.C. Cir. 1996).  See Supplemental Comments of
the American Petroleum Institute on the Proposed Listing
Determinations for Certain Petroleum Refinery Residuals 12-
14 (April 23, 1997).  Moreover, the method of management is
a key variable that may distinguish a hazardous waste from a
waste that is not hazardous.  See Dithiocarbamate Task
Force, 98 F.3d at 1405.  Thus, to avoid regulating wastes
that are not hazardous (and thus, to conform to the
principles of the Dithiocarbamate decision), the Agency
should list residuals as hazardous only where they are
managed in a manner shown to pose substantial risks.

The Agency itself appears to have reached the conclusion
that it has the authority to promulgate conditional listings
or conditional exemptions from regulation under RCRA, and
that it is appropriate to do so where "across-the-board"
listings or regulation would not be necessary to protect
human health and the environment.  In the recently-issued
military munitions waste rule, EPA established a conditional
exemption from RCRA regulation for the storage of military
munitions that would otherwise be listed or exhibit a
hazardous waste characteristic and therefore be subject to
full RCRA regulation, no matter how treated, stored or
disposed. (62 Fed. Reg. 6622, 6655-56, Feb. 12, 1997).

The Agency expressed its belief that "RCRA section 3001(a)
provides the Agency with the flexibility to consider good
management practice in determining the need to regulate
waste as hazardous ..." Id. at 6636.  It noted that "EPA has
interpreted the statutory definition [of hazardous waste] as
incorporating the idea that a waste that is otherwise
hazardous does not require regulation (if properly
managed)."  Id. It acknowledged that its earlier approach to
listing hazardous wastes has "focused on the inherent
chemical composition of the waste," Id. at 6637, but
concluded that:  "After more than 15 years of experience
with the management of hazardous wastes, EPA believes that
it is no longer required -- nor is it accurate and fair --
to assume that all inherently hazardous wastes will be
mismanaged, thus creating the necessity to regulate them
under subtitle C."  Thus, there should be no disagreement
regarding whether EPA has the authority and duty to
promulgate conditional listings or conditional exemptions in
appropriate circumstances.  As shown below, if despite all
the information provided by API on these and earlier
comments EPA decides to list any of the residuals at issue
in this rulemaking, EPA should employ conditional listings. 
(API, 00009, pg 20)

Response: EPA agrees with the commenter that EPA has the
legal authority to promulgate conditional listings under
RCRA.  However, the Agency has decided not to proceed with a
conditional listing for CSO sediment.  This is discussed in
response to comment 1 in Section V.A. of the proposed rule
response to comment document.

Comment 5:  If EPA Lists CSO Sediment, It Should Only List
CSO Sediment that Is Subject To Land Treatment

As discussed above, to the extent population risk is
considered (as API maintains it should be), CSO sediment
does not pose substantial risk under any management
scenario.  However, even if individual risk is considered
alone, and the negligible population risk is ignored, EPA's
risk assessments still reveal that CSO sediment arguably
poses substantial potential risks only when managed in land
treatment units.  Therefore, assuming for the sake of
argument that there is any basis for listing CSO sediment,
EPA should list this residual only where it is land treated.

EPA should not list CSO sediment disposed of in landfills. 

In response to comments, EPA considered whether such a
conditional listing might lead to much higher volumes of CSO
sediment going to landfills, and if so, whether risk
projections would be affected. EPA's contingent management
risk assessment of CSO sediment results in total on-site
risks of 1.7 x 10-6 and total off-site risks of 2.5 x 10-6. 
In the case of the Monte Carlo analysis, total risks are
well below 1 x 10-6 for all scenarios at or below the 95th
percentile.  Consistent with EPA policy for listing
determinations, the risk values calculated for CSO sediment
clearly support a contingent management determination.

In order to calculate contingent management risks, EPA made
several conservative assumptions.  First, EPA assumed that
the total amount of CSO sludge produced at a refinery was
sent to that facility's on-site landfill.  In the case of
off-site landfills, EPA assumed that for each refinery, the
total amount of CSO sludge produced was sent to the off-site
landfill.  If several refineries sent waste to the same
landfill, then the total waste received was set equal to the
combined totals. 

Second, the assessment of high-end risk is based on three
high-end parameters.  In order to calculate risks, EPA set
the waste volume and the Y-well distance as the high-end
parameters; however, by assuming the waste concentration to
be equal to the TC cap, EPA essentially added another high-
end parameter.  The resulting risk calculations, therefore,
are likely an overestimate of potential risks.  Even under
these conservative assumptions, however, disposal of CSO
sediment will not pose an unacceptable risk to nearby
residences.  Based on this analysis, API urges EPA to
consider a contingent management listing for CSO sediments,
if it determines that any listing is needed at all.  (API,
00009, pg 21)

Response:  EPA thanks the commenter for their support and
recognizes they favor Options 1 and/or 2.  However, as a
direct result in responding to comments, EPA determined that
the disposal of CSO sediment in landfills, without any
consideration of codisposal, results in some groundwater
risks.  Therefore, the Agency will not be applying a
conditional exemption to the CSO sediment listing.  This
issue is discussed further in response to comment 1 in
Section V.A. of the proposed rule response to comment
document.

Comment 6:  If EPA Decides To List Spent Hydroprocessing
Catalysts at All, It Should Only List those Catalysts that
Are Land Disposed

Again, as discussed above, given a proper consideration of
the negligible population risk, there is no basis to find
that spent hydroprocessing catalysts pose substantial
hazards to human health or the environment.  However, even
if individual risk is considered alone, and population risk
is ignored, EPA's risk assessment arguably projects
substantial potential risks only where spent hydroprocessing
and hydrorefining catalysts are disposed of in landfills.

Although EPA did not perform a formal risk assessment as to
recycling (metals reclamation) -- the management method to
which some 80 percent of the catalyst volume is subject --
EPA concluded that, "based on EPA's preliminary review of
[the metals reclamation] industry, the spent catalysts
appear to be managed and processed in a way that controls
risks."  USEPA, Listing Background Document for the 1992-
1996 Petroleum Refining Listing Determination at 79 (Oct.
31, 1995). Thus, even if the record supported listing the
catalysts when they are land disposed (which it does not),
it still would not support listing the catalysts when
recycled.

Although not entirely conclusive, the evidence of record
strongly suggests that recycling of these catalysts does not
pose substantial risks.  At a minimum, given the fact that
the lion's share of the catalysts are subject to recycling,
it would be arbitrary to ignore EPA's conclusion that when
recycled, "the spent catalysts appear to be managed and
processed in a way that controls risks."

Thus, in the absence of a showing of substantial risk from
the recycling of spent catalysts, EPA should not list spent
hydroprocessing catalysts which are subject to recycling.

API's research into reclamation for spent
hydrotreating/hydrorefining catalysts clearly supports EPA's
initial finding that the recycling process is
environmentally sound.  Management of spent catalysts both
on-site at the refinery and off-site at the reclamation
facility is carefully controlled and is not expected to be
associated with off-site exposures under normal management
practices.  As indicated by EPA, "most refineries place
[spent catalysts] directly into closed containers such as
55-gallon drums or flow-bins" (SAIC, 1995, p.77).  In a
container, the residual cannot impact off-site groundwater
or residential properties.  In other words, there is no
potential exposure and therefore, no potential risk. (An
exception to that practice is one facility at which spent
catalyst is placed on a RCRA permitted pad where it is
allowed to oxidize to reduce the self-heating
characteristics.  However, given that this process is
already regulated under RCRA, it should not be considered as
part of the listing determination.)

Similar to on-site management, off-site management of
hydrotreating/hydrorefining catalysts is conducted so that
off-site exposures are negligible.  Again, EPA agrees that
"the spent catalysts appear to be managed and processed in a
way that controls risks" (SAIC, 1995, p. 90).  Information
provided by the two U.S. reclamation facilities, CRI MET and
Gulf Chemical and Metallurgical Company clearly support this
initial finding by EPA.  API could not identify any scenario
associated with these companies' management practices which
might result in off-site exposure.  The absence of any
exposure scenario clearly indicates that the risks from both
these facilities is either non-existent or insignificant.

EPA has suggested that the pyrophoric nature of the spent
catalysts may provide additional rationale to justify a
listing determination.  (60 FR 57747)  API disagrees with
this rationale.  Both generators and reclaimers of spent
catalyst are aware of the pyrophoric nature of these
materials and take great care to handle them accordingly. 
In the absence of any other potential risks, the pyrophoric
nature of the spent catalysts alone is not sufficient to
justify a listing.  Until EPA actually quantifies the risk,
if any, of these residuals, it cannot make a sound listing
determination.

In addition to the absence of substantial potential risks to
justify an across-the-board listing, a contingent management
listing for spent catalysts would clearly support the goals
and objectives of RCRA.  Again, EPA acknowledges that "the
practice of spent catalyst reclamation is valuable because
it is consistent with the intent of RCRA..." (SAIC, 1995, p.
90).  If reclamation of spent catalysts were to become a
RCRA hazardous waste practice it is extremely likely that
landfilling, a process potentially associated with increased
risks, would become a more prevalent process.  Costs
associated with reclamation range from $100 to $1000/ton
while landfill disposal only costs $50 to $350/ton
(Clifford, 1997).  In the absence of any other incentives,
cost will become a determining factor.  (API, 00009, pg 22)

Response:  See response to comment  1c in this section.

Comment 7:  Contingent Management of Hydrotreating and
Hydrorefining Catalysts Should Be Considered for On-site
Landfill Disposal

Although API disagrees with the proposed listing decision
for spent catalysts, in the event that EPA does list either
hydrotreating or hydrorefining catalysts, API urges EPA to
strongly consider a conditional listing that differentiates
between on-site and off-site disposal.  Both the risk
assessments performed by EPA and supporting data on well
distance indicate that risks from on-site landfill disposal
are clearly negligible.  As discussed Supra, data obtained
by EPA in the RCRA 3007 Survey for on-site landfills clearly
suggests that the OSW survey data greatly underestimates
well distance.  As calculated by API, EPA's evaluation of
risks from on-site landfill disposal are likely to
overestimate actual risks by a factor of 5.  Actual high-end
risks are expected to be on the order of 1 x 10-6.  In
addition, the results of EPA's population analysis indicate
that the sum of the population exposed across all on-site
landfills is limited to one individual (EPA, 1995b).  In
other words, for most on-site landfills, there is no
exposure and, therefore, no risk.  In the absence of a
complete exposure pathway, risks from on-site landfill
disposal are nonexistent, even in the event that all wastes
were disposed of on-site.  (API, 00009, pg 23)

Response: EPA responds to this idea for a conditional
listing for spent catalysts in its response to comment 2 in
this Section.  Concerning comments related to distance to
wells, see  response to comment 1 in Section I.A.6.a of this
document.  See also response to comments 7 and 8 in Section
I.A.5 of this document for further discussion of the basis
for listing these wastes.

Comment 8:  Sun Continues to Recommend Conditional Listings
to Control Only Those Management Methods that Pose
Unacceptable Risks.

Although Sun does not believe that EPA has justified listing
any wastes, those management methods that have been
established by EPA to be the bases for listing should be the
only methods that cause the wastes to be considered
hazardous wastes.  Therefore if these wastes are listed,
they should only be listed under a conditional listing. 
(Sun, 00008)

Response:  The Agency has decided not to proceed with a
conditional listing for CSO sediment.  This is discussed in
response to comment 1 in Section V.A. of the proposed rule
response to comment document.

Comment 9:  Assuming EPA Decides To List Any of the
Residuals Under Any Circumstance, EPA Should Employ
Conditional Listings

After considering and correcting the technical flaws in the
risk modeling, we believe that EPA will likely lack the
necessary information to support the conclusion that any of
the three residuals proposed for listing should be listed. 
However, assuming for the sake of discussion that there were
record support for listing CSO sediment or spent
hydroprocessing catalysts under some circumstances, EPA
should list such residuals only in those specific
circumstances, i.e., EPA should employ conditional listings
or the "contingent management" concept.

A listing that encompasses wastes found to pose substantial
hazards, as well as substantial quantities of wastes that do
not pose substantial hazards, is not likely to survive
scrutiny under the court's analysis in Dithiocarbamate Task
Force v. EPA, 98 F.3d 1394 (D.C. Cir. 1996).  See
Supplemental Comments of the American Petroleum Institute on
the Proposed Listing Determinations for Certain Petroleum
Refinery Residuals 12-14 (April 23, 1997).  Moreover, the
method of management is a key variable that may distinguish
a hazardous waste from a waste that is not hazardous.  See
Dithiocarbamate Task Force, 98 F.3d at 1405.  Thus, to avoid
regulating wastes that are not hazardous (and thus, to
conform to the principles of the Dithiocarbamate decision),
the Agency should list residuals as hazardous only where
they are managed in a manner shown to pose substantial
risks.

The Agency itself appears to have reached the conclusion
that it has the authority to promulgate conditional listings
or conditional exemptions from regulation under RCRA, and
that it is appropriate to do so where "across-the-board"
listings or regulation would not be necessary to protect
human health and the environment.  In the recently-issued
military munitions waste rule, EPA established a conditional
exemption from RCRA regulation for the storage of military
munitions that would otherwise be listed or exhibit a
hazardous waste characteristic and therefore be subject to
full RCRA regulation, no matter how treated, stored or
disposed. (62 FR 6622, 6655-56, Feb. 12, 1997).  Phillips
fully supports this approach, believing that listings should
address situations where risk is demonstrable.  When a
residual is appropriately managed there is no need for a
listing, especially, as is the case for spent
hydroprocessing catalyst, the constituents of concern are
already regulated by the Toxicity Characteristic (TC).

The Agency expressed its belief that "RCRA section 3001(a)
provides the Agency with the flexibility to consider good
management practice in determining the need to regulate
waste as hazardous ..." Id. at 6636.  It noted that "EPA has
interpreted the statutory definition [of hazardous waste] as
incorporating the idea that a waste that is otherwise
hazardous does not require regulation (if properly
managed)."  Id. It acknowledged that its earlier approach to
listing hazardous wastes has "focused on the inherent
chemical composition of the waste," Id. at 6637, but
concluded that: "After more than 15 years of experience with
the management of hazardous wastes, EPA believes that it is
no longer required -- nor is it accurate and fair -- to
assume that all inherently hazardous wastes will be
mismanaged, thus creating the necessity to regulate them
under subtitle C."  Thus, there should be no disagreement
regarding whether EPA has the authority and duty to
promulgate conditional listings or conditional exemptions in
appropriate circumstances.  As shown below, if despite all
the information provided by API on these and earlier
comments EPA decides to list any of the residuals at issue
in this rulemaking, EPA should employ conditional listings. 
(Phillips, 00014)

Response: EPA agrees with the commenter that EPA has the
legal authority to promulgate conditional listings under
RCRA.  However, the Agency has decided not to proceed with a
conditional listing for CSO sediment.  This is discussed in
response to comment 1 in Section V.A. of the proposed rule
response to comment document.

Comment 10:  The Agency has stated on numerous occasions,
the intent to offer regulatory relief for legitimate
manufacturing, recycling, and reuse activities within
rulemaking actions.  Such regulatory relief actions serve as
incentives and provide true benefit for the regulated
community to conduct waste minimization, which is mandated
by Congress and consistent with National Policy.  Therefore,
AMRI is utilizing this comment submittal to restate its
interest and justification for the Agency to reconsider the
establishment of specific exemptions for the recycling of
spent hydrotreating and hydrorefining catalysts.  AMRI's
requested action is both appropriate and warranted, since
under 40 CFR 261.2(f), individuals and facilities engaged in
exempted regeneration operations have the burden of proof
that they are engaged in legitimate management activities. 
Furthermore, such regulatory relief is specific to, and
within the Agency's intended scope and confines of the
listing determination for residuals from petroleum refining
operations.  (CRI-MET, 00007)

Response: Catalyst wastes are "spent materials."  Under
RCRA, the definition of spent material is "any material that
has been used and as a result of contamination can no longer
serve the purpose for which it was produced without
processing."  EPA has consistently interpreted this
definition to include materials that have been used and are
no longer fit for use without being regenerated. 
"Contamination" as used in the definition of spent material
means any impurity, factor, or circumstance which causes the
material to be taken out of serve for reprocessing (i.e.,
treatment for reclamation).  When a material is no longer
serving its original purpose and is being reprocessed, EPA
considers the material to be meeting the "can no longer
serve the purpose for which it was produced" condition of
the definition of spent material.

EPA asserts that this is the only interpretation of the
definition of spent material that makes environmental sense.

Once a material such as a catalyst is taken out of service
and is sent for reclamation, the material poses the same
risk to human health and the environment regardless of the
reason for taking the material out of service.  Petroleum
catalysts that are used and can no longer be used for their
original purpose without regeneration are spent materials. 
As a result of today's rule, spent hydrotreating and
hydrorefining catalysts are listed hazardous wastes.

EPA notes that given the hazardous nature of this waste, EPA
believes it is entirely appropriate for it to be transported
and stored as hazardous before recycling.

Comment 11:  The feedstock exemption proposed by the Agency
for spent caustic solutions from petroleum refining liquid
treating processes used as a feedstock to produce cresylic
or naphthenic acid states that "...the spent caustic
constitutes a valuable commercial feedstock which is used in
the manufacture of commercial chemical products."  Also
stated as rational for the exclusion was (1) the economic
value of caustic and the commodity like management , (2)
shipment of spent caustics from individual refiners is like
other petroleum products, (3) applicable DOT, Coast Guard,
and railroad transportation rules are in effect, (4) storage
in permitted tanks is provided at the facility, (5) spill
control containment and air pollution controls are in place,
(6) the spent caustic is directly pumped after storage into
the plant's chemical manufacturing process, and (7) no
reportable spills/releases of spent caustics have occurred
over the past ten years. 

The proposed rule further stated that "Based on the manner
in which these materials are routinely handled and
processed, this recycling practice more closely resembles a
manufacturing operation than a reclamation process."  Within
the proposed rule, the Agency stated that "... in our effort
to redefine "solid waste," EPA has concluded that spent
caustic from liquid treating is not a waste when recycled in
this manner even though it does have an element of
reclamation associated with it.  Rather, the spent caustic
constitutes a valuable commercial feedstock which is used in
the manufacture of commercial chemical products."

The Agency's interpretation of what constitutes
manufacturing is identical in concept and practice to AMRI's
manufacturing processes.  Each condition identified within
the Agency's interpretation applies to AMRI's facility,
which was the first commercial facility to offer to the
petroleum refining industry a "total reuse" option for spent
catalysts, based on manufacturing.  AMRI has routinely paid
for spent catalyst feedstocks, based on the international
metals market.  The shipments are covered by DOT regulations
and storage is maintained in units to prevent reportable
spills and releases.  Materials movement and inventory is
evaluated using a bar code tracking system and the
facility's feedstocks analysis plan insures that the
incoming materials match the pre-acceptance samples before
introduction to the on-going manufacturing process. 
Furthermore, AMRI's environmental record is superb and has
operated for over ten years without a single feedstock or
product related CERCLA release, and has never exceeded
metals related NPDES permit limits.  AMRI has also logged
over nine years of continuous compliance with hazardous
waste regulations and exemplifies a facility worthy of
regulatory relief, similar to the Agency's proposed
feedstock exemption for spent caustics.

Therefore, AMRI agrees with the Agency's proposal "... to
amend the regulations at 40 CFR 261.4(a)(14) to provide an
exclusion from the definition of solid waste, clarifying
that spent liquid treating caustics from petroleum
refineries used as feedstock in the manufacture of
naphthenic and cresylic acid products are not solid wastes."

AMRI is also encouraged by the Agency's position that "EPA
may identify additional "commodity-like" materials as we
proceed with other Agency efforts to redefine the definition
of solid waste and revise the existing RCRA regulations."

The Agency has stated on numerous occasions that it is not
the intent of RCRA to regulate manufacturing processes.  If
one applies the Agency's acknowledged intent of RCRA, the
direct use made of spent catalysts by AMRI is no different
from the thousands of other industrial chemicals that are
used as feedstocks with which to make other chemical
products.  Based on the Agency's statements and the intent
of RCRA, AMRI requests that the Agency "identify" AMRI's
manufacturing process as "commodity-like," and amend the
regulations at 40 CFR 261.4 to provide an exclusion from the
definition of solid waste, clarifying that spent catalysts
from petroleum hydrotreating and hydrorefining operations
used as feedstock materials in legitimate manufacturing
operations are not solid wastes.  Therefore, AMRI proposes
the following regulatory language: 

     40 CFR 261.4 Exclusions
     (a) Materials which are not solid wastes.  The
following materials are not solid waste for
     the purpose of this part:
     * * * * *
     (  ) Spent catalysts from petroleum refining
hydrotreating and hydrorefining processes
     used as a feedstock in legitimate manufacturing
operations, unless the material is
     accumulated speculatively as defined in 261.1(c)(8) of
this chapter.  (CRI-MET, 00007)

Response:  The Agency disagrees with the commenter.  Spent
catalysts from petroleum refining operations that are
removed from the refinery process regenerated or reclaimed
in another process are spent materials being reclaimed. 
Under RCRA, the definition of spent material is "any
material that has been used and as a result of contamination
can no longer serve the purpose for which it was produced
without processing."  EPA has consistently interpreted this
definition to include materials that have been used and are
no longer fit for use without being regenerated. 
"Contamination" as used in the definition of spent material
means any impurity, factor, or circumstance which causes the
material to be taken out of serve for reprocessing (i.e.,
treatment for reclamation).  When a material is no longer
serving its original purpose and is being reprocessed, EPA
considers the material to be meeting the "can no longer
serve the purpose for which it was produced" condition of
the definition of spent material.

EPA asserts that this is the only interpretation of the
definition of spent material that makes environmental sense.

Once a material such as a catalyst is taken out of service
and is sent for reclamation, the material poses the same
risk to human health and the environment regardless of the
reason for taking the material out of service.  Petroleum
catalysts that are used and can no longer be used for their
original purpose without regeneration are spent materials. 
As a result of today's rule, spent hydrotreating and
hydrorefining catalysts are listed hazardous wastes.

EPA notes that given the hazardous nature of this waste, EPA
believes it is entirely appropriate for it to be transported
and stored as hazardous before recycling. 

The Agency also notes that although the regeneration process
is not regulated, hazardous secondary materials must be
managed as hazardous wastes prior to being inserted into the
regeneration process.  In addition, residuals generated as a
result of the process retain the hazardous waste listing. 
Regeneration or reclamation to recover metals or other
constituents in the catalysts is not considered an "on-going
manufacturing process."

Comment 12:  The Agency's proposed listing of spent
hydrotreating and hydrorefining catalysts is based on a risk
analysis which was applied to a limited set of waste
management practices (off-site Subtitle D landfills) which
represented only a small portion of the spent hydrotreating
and hydrorefining catalysts managed on an annual basis (7.2
percent of the hydrotreating catalysts and 17 percent of the
hydrorefining catalysts).  In addition, the calculated risk
values used to support the listing determination were within
the Agency's discretionary range. 

Within the proposed rule, the Agency stated that "... the
regeneration and reclamation of spent
hydrotreating/hydrorefining catalysts is an environmentally
sound alternative to disposal ..."; the Agency continued by
stating that "... EPA does not believe that these off-site
recycling activities present significant risk ...".  The
Agency's statements were confirmed and reenforced by the
Section 3007 survey which documented that approximately 80
percent of the hydrotreating and 75 percent of the
hydrorefining spent catalysts are presently being reclaimed
or regenerated.

However, the Agency's proposed unconditional listing of
spent hydrotreating and hydrorefining catalysts will require
RCRA Subtitle C management standards for all management
activities after the point of generation.  As such, the
proposed unconditional listing does not acknowledge or
promote the merits and benefits of waste minimization,
recycling, and reuse management practices currently
demonstrated by the industry and documented by the Agency.

The Agency's unconditional listing is not warranted, given
the fact that the Agency acknowledged that only a small
portion of spent hydrotreating and hydrorefining catalysts,
i.e., less than 15 percent, are managed under conditions
used to support the listing determination. 

Furthermore, within the proposed rule, the Agency stated
that "Where EPA has characterized a specific waste, modeled
the associated management practices and found specific
management practices (and not others) to present significant
risks to human health or the environment, EPA could list as
hazardous only those wastes managed in a manner that
presents significant risk."  The Agency continued by stating
that "Alternatively, EPA could list wastes unless they are
managed by the method that does not exhibit significant
risk."  

If conditional listings are an option to be utilized by the
Agency, then the opportunity exists to demonstrate a
practical and beneficial use for that option.  The Agency
has documented within the proposed rule that "... EPA
believes that any potential risks associated with
regeneration and reclamation are unlikely to be significant,
and would be less than the risks found to exist for the
management practices modeled."  Therefore, since the
majority of spent hydroprocessing catalysts are presently
being managed under environmentally sound practices, the
Agency's listing determination should be targeted to
discourage the use of higher risk management practices. 
(CRI-MET, 00007)

Response:   EPA responds to the issue of waste volumes
modeled in detail in the proposed rule response to comment
document (see Section IV.C.3, comment 1).  While EPA agrees
that much of these wastes are being recycled, shifts might
occur in management practices away from recycling and toward
less expensive landfilling.  In any case, the data for these
wastes clearly shows that the practice of landfilling is
plausible for both of these wastes, thus, EPA believes that
the risks found from landfilling justify an unconditional
listing.  Furthermore, as noted above in response to comment

1c, this waste is not a good candidate for a conditional
listing. 

Comment 13:  In determining the national capacity, the
Agency assumed that facilities such as AMRI would continue
to operate successfully, including any required expansion,
following the promulgation of an "unconditional" listing for
spent hydroprocessing catalysts.  While, AMRI supports the
general intent of the Agency's proposed rulemaking; AMRI is
concerned regarding the potential economic impact of such an
"unconditional" listing on facilities which the Agency is
relying on to provide the required treatment capacity for
the spent hydrotreating and hydrorefining catalysts.

By proposing an "unconditional" listing for spent
hydrotreating and hydrorefining catalysts, the Agency has
failed to recognize the merits and benefits of demonstrated
and available waste minimization, recycling, and reuse
management practices which have been acknowledged and
documented within the proposed rule.  The Agency's
"unconditional" listing is not warranted, based on Agency
data which documents that less than 15 percent of spent
hydroprocessing catalysts are managed under conditions that
warrant listing.  Furthermore, within the proposed rule, the
Agency stated that "Where EPA has characterized a specific
waste, modeled the associated management practices and found
specific management practices (and not others) to present
significant risks to human health or the environment, EPA
could list as hazardous only those wastes managed in a
manner that presents significant risk."  The Agency
continued by stating that "Alternatively, EPA could list
wastes unless they are managed by the method that does not
exhibit significant risk."

If promulgated as final, the Agency's unconditional listing
will mandate the application of the "mixture" and "derived
from" rule for all management activities after the point of
generation, placing additional regulatory burden (LDR
treatment standards, up-grading of storage areas, Subpart CC
compliance, and obtaining permits/variances) on
environmentally sound management practices.  AMRI has
estimated that the time required to comply with such
additional regulatory burdens and associated permitting
requirement will greatly exceed the Agency's specified 6
month period prior to the rules effective date, and result
in the majority of the Agency's calculated national capacity
being unavailable to the regulated community for a
significant period of time.  Therefore, based on the facts
and opinions represented, it would be prudent for the Agency
to consider the option of issuing a two-year capacity
variance, specific to recycling facilities.  (CRI-MET,
00007)

Response: LDR treatment standards become effective when
promulgated unless the Agency grants a national capacity
variance from the statutory date because of a lack of
available national capacity.  RCRA section 3004(h)(2)
authorizes EPA to grant a national capacity variance for the
waste and to establish a different date (not to exceed two
years beyond the statutory deadline) based on "...the
earliest date on which adequate alternative treatment,
recovery, or disposal capacity which protects human health
and the environment will be available" if there is
inadequate alternative treatment/recovery capacity.  LDR
capacity determination is done on a national basis (S.Rep.
No.284, 98th Cong., 1st Sess. 19) -- both the capacity of
available treatment technologies and the quantity of
restricted wastes.  For capacity analysis methodology,
please see the discussion for these wastes in the Capacity
Analysis Background Document in this docket.  So an LDR
capacity variance only exempts the wastes from meeting
treatment standards prior to land disposal (including
derived-from residuals generated from the catalyst recycling
process) if EPA finds there is inadequate available
treatment capacity.

LDR treatment standards for these newly listed wastes are
based on the following treatment technologies.  For
nonwastewaters, incineration and fuel substitution for K170;
recovery/reuse, incineration, stabilization, and
vitrification for nonwastewater K171 and K172.  For
wastewaters, UTS standards for constituents of concern are
based on the following technologies for K170-K172:
biological treatment, activated sludge biological treatment,
steam stripping, lime conditioning plus sedimentation plus
filtration, chemically assisted clarification, wet air
oxidation, chemical precipitation plus sedimentation,
electrochemical treatment plus chemically assisted
clarification.  However, EPA does not preclude use of any
other technologies that can meet the treatment standards, so
long as the treatment is not considered impermissible
dilution.

Note that materials that are reclaimed from solid wastes and
that are used beneficially are not solid wastes and hence
are not hazardous wastes (see 40 CFR 261.3(c)(2)). 
Therefore, metal alloy products extracted from metal-bearing
hazardous wastes through high temperature metal recovery are
not solid wastes or hazardous wastes provided that they are
not used on the land, burned for energy recovery, or
reclaimed further.  Also, 40 CFR Section 260.31(b) provides
for a mechanism for these recycling and reclamation
facilities to obtain a variance from the Regional
Administrator (or designated state official in duly
authorized states) stating that these recycling residuals
are commodity-like and therefore exempt from the definition
of solid waste (therefore, the residuals would not be
subject to LDR treatment standards).

As the Listing and LDR regulations are being co-finalized
with the same effective date, TSD facilities that manage
these wastes must also comply with the LDR treatment
requirements contained in 40 CFR Part 268 prior to land
disposal by this rule's effective date.  Based on the
results of the Capacity Analysis, adequate commercially
available capacity exists to treat K171 and K172 residuals. 
Therefore, EPA is not granting a national capacity variance
for these wastes. 

Comment 14:  Reclaiming

Consequence if Listed: The cost of reclaiming will increase
dramatically making it less attractive to reclaim and more
likely that catalyst will be disposed.

Current System: Recycling catalyst that has already been
treated to remove the characteristics of concern means it
will be safer to handle at the refinery, on the highways,
and at the recycling facility.  The cost of reclaiming is
likely to be lower as the reclaimer won't have RCRA
compliance requirements (catalyst storage and handling). 
Thus, reclaiming should remain a viable and continuing
attractive option.

Discussion: The reclaimers must prepare to manage all listed
catalyst as hazardous.  This will significantly increase
costs.  We were informed by one of the major metal smelters
that recycle our catalyst metals, that reclaiming costs for
one of our spent catalysts would increase from $50,000 to
$500,000 per catalyst dump when the catalyst becomes listed.

For this ten fold increase in reclaiming charges, there
would be almost no increase in environmental protection.  In
fact, listing will likely cause most all recycling of the
listed catalysts to cease.  This will increase the demand
for virgin metals.  Thus, the overall environmental benefits
from the listing determination are likely to be negative.

Response:  EPA does concludes that an increased cost burden
is not an appropriate basis for not listing residuals, when
the Agency's risk assessment models and tools indicate that
these materials pose a risk to human health and the
environment.  While recycling costs may increase as a result
of this rule, EPA continues to believe that it is completely
appropriate to bar these materials from Subtitle D disposal
because of the risk levels identified through the Agency's
risk assessment procedures.  The Agency also does not
believe that refineries will stop safe management practices
as a result of this listing determination.

Comment 15:  We understand EPA is recalculating its risk
assessments for disposal scenarios related to CSO sludge
management.  Our experience of late is that those doing
modeling of landfills for regulatory purposes do not
adequately account for the protective controls provided by
the municipal solid waste landfill (MSWLF) regulations
promulgated on October 9, 1991 (56 FR 50978).

These controls address location restrictions, facility
design and operation standards, groundwater monitoring and
corrective action measures, closure and post-closure care,
and financial responsibility requirements.  In particular,
run-off controls, daily cover, composite liners, access
control, air controls, among others make disposal is these
MSWLF landfills far safer than would be estimated from
modeling an open dump.  Thus, it is necessary to consider
these controls when estimating risk.  When properly
considered, we believe you will find that disposal of CSO
sludge in MSWLFs is a safe and effective practice with no
realistic routes of exposure available.  We again request
that the listing, if needed at all, be narrow and only list
CSO sludge that is applied to the ground outside of a MSWLF.

The pathway of greatest concern appears to be related to
runoff from the landfill.  This is not a plausible route of
exposure from a MSWLF given the controls that exist.  In
particular, the daily cover requirement and the run-on
run-off controls prevent this.

40 CFR Section 258.21 requires that at the end of each
operating day, a cover of at least six inches of soil be
placed over exposed waste in a MSWLF (Section 258.21).  Six
inches of daily cover will prevent the migration of CSO
sediment or contaminants from the disposed waste.

To prevent the flow of surface water onto or from a landfill
unit, Section 258.26(a)(1) requires all MSWLF units to have
run-on and run-off control systems.  The intent of the
design, construction, and maintenance of a run-on control
system is to prevent the flow of surface water onto the
active portion of a unit during the period of greatest
precipitation in a 25-year storm.  These system controls are
intended to mitigate erosion, reduce surface discharge of
wastes in solution or suspension, and minimize run-on
available to percolate down through waste which creates
leachate (56 FR 51054; October 9, 1991).  A run-off control
system, likewise, must be designed and operated to collect
and control the water volume resulting from a 24-hour,
25-year storm (Section 258.26(a)(2)).  These controls will
prevent CSO contaminants from migrating outside of the
landfill.

Run-off collected from the active portion of a landfill unit
must be managed in accordance with Section 258.27, which
requires that all MSWLFs be operated in compliance with the
Clean Water Act. 

The MSWLF uniform design criteria require a composite liner
and a leachate collection system.  The composite liner
system consists of an upper component which is a flexible
membrane liner (FML) that satisfies specific thickness
standards.  The lower component must be constructed of at
least a 2-foot layer of compacted soil and must exhibit a
hydraulic conductivity of no more than 1 x 10-7 cm/sec.  EPA
believes that the combination of an FML and a compacted soil
layer ensures adequate protection by providing both a highly
impermeable upper liner to maximize leachate collection and
removal, and a lower soil layer to serve as a back-up in the
event of FML failure (56 FR 51060; October 9, 1991).  The
leachate collection system must be designed and constructed
to maintain less than a 30-cm depth of leachate over the
liner (Section 258.40(a)(2)).  Studies have shown that such
liner/leachate collection systems capture over 99.7% of the
leachate generated providing over 300 times the protection
of an unlined "open dump".  Thus, contaminants are not
likely to leave the landfill containment.

MSWLFs require groundwater monitoring and corrective action.

Similar to the regulations for hazardous waste treatment,
storage, and disposal facilities (TSDFs) in Subpart F of
Part 264, MSWLF groundwater monitoring and corrective action
requirements consist of three sequential phases.  Detection
monitoring, minimally required for all units, is designed to
measure concentrations of certain indicator parameters.
Statistically significant increases (SSI) in these
indicators trigger groundwater assessment monitoring for
hazardous constituents.  Finally, a corrective action
program is required if remediation of contaminated
groundwater is necessary.  Thus, in the unlikely event that
contaminants did migrate away from the landfill, procedures
are in place to assure that it does not pose a risk. 

Closure standards require owners/operators to install a
final landfill cover system that is designed to minimize
soil erosion and infiltration of liquids through the cover. 
The cover's infiltration layer, consisting of at least 18
inches of earthen material, must be at least as impermeable
as any bottom liner system or natural sub-soils, but in no
case may the permeability be greater than 1 x 10-5 cm/sec.
The erosion layer must be a minimum of six inches of earthen
material that can sustain native plant growth.  Thus, the
long term potential for materials migrating for the landfill
has been nearly eliminated.

For the above reasons, we are certain that when accurately
modeled, this method of disposal will be found safe for CSO
sediments and a very sound basis for a conditional listing
that excludes waste disposed in this way.  We ask that the
Agency consider the state of Subtitle D technology and
standards in its modeling.

Exempting other Listed Wastes 

Given that the Subtitle D safety net has been substantially
improved, it would be appropriate to consider conditionally
exempting other refinery listed wastes (F037-38, K048-52)
that are disposed in a modern MSWLF and that are not
ignitable, corrosive, or reactive (ICR).  The toxicity
characteristic was derived assuming an open dump scenario
among many other conservative assumptions.  Given the
protections of a modern MSWLF, wastes that do not exhibit an
acute hazard can be safely handled and disposed in a MSWLF,
saving industry and the nation significantly while still
adequately protecting human health and the environment.  The
availability of these landfills should be a fundamental
consideration in any further evaluation of Subtitle C
requirements. Clearly, the lack of an adequate subtitle D
program in the past has been the driver for a stringent
hazardous waste program.  That has now changed. 

Considering this change is most relevant to wastes which are
defined as hazardous due to an assumed long-term exposure
(chronic) such as drinking contaminated water over a
lifetime.  Placement in a modern MSWLF reduces the intensity
of these possible exposure by orders of
magnitude.

The Agency should recognize the opportunity that the
improved subtitle D program offers.  There is the
opportunity to improve the quality of industry's disposal
while decreasing the economic and administrative burden of
managing hazardous and industrial wastes.

Response:  As noted previously in this section, EPA will not
be promulgating a conditional exemption to the CSO sediment.

Therefore, the Agency believes that the commenter's
suggestions for conditional listings based on disposal in a
municipal solid waste landfill  are moot.  However, the
Agency notes that the regulations cited by the commenter for
municipal landfills do not apply uniformly to all such
landfills.  Existing units are not required to meet the full
design requirements, and other type of facilities (e.g.,
small landfills or units in rural areas) may not have to
comply with all standards.  Furthermore, many of the off-
site landfills receiving the wastes under study were
reported in the 3007 Questionnaire to be industrial
Subtitle D landfills, and thus, would not be subject to the
regulations cited by the commenter (see Additional Listing
Support Analysis, 1998 in the docket, for a summary of the
data from the Questionnaire for off-site landfills).

IV.B.     Individual versus Population Risk

Comment 1:  Population Risk Estimates for Landfilled
Residuals are Overstated

In addition to the fact that EPA's existing population risks
for the residuals in question are already low, they are
likely to be further overstated due to overestimates of the
population size exposed to contaminated ground water.  To
estimate the total population exposed to contaminated ground
water near a landfill receiving refinery residuals, EPA
first calculated the total population living within one mile
of every landfill receiving refinery residuals.  This value
was then multiplied by the proportion of the one mile radius
occupied by the plume and then divided by the average
fraction of the population served by domestic wells (EPA,
1995c).

In making these calculations, EPA attempted to use
assumptions describing transport and exposure that reflect
"typical" conditions at a Subtitle D landfill and not a
"worst case" situation.  (EPA, 1995c)  However, the analysis
performed still explicitly or implicitly makes a number of
assumptions about landfills that are not likely to be true
at all or even most facilities.  In many instances, these
assumptions apparently result from simplified factors used
by EPA in its fate and transport or exposure models.  EPA
has failed to recognize that models used to estimate
hypothetical individual exposures are not necessarily
applicable to estimates of the population exposures across
multiple facilities. Models of population exposure must take
into consideration factors that could be ignored in
hypothetical individual exposure assessments.  Examples of
such factors include, the likelihood of a drinking water
well intercepting a contaminated ground water plume and the
presence of partial leachate controls at a landfill.  In
other instances, the Agency simply has not taken advantage
of the available data (e.g., well location) in its risk
assessments. 

In any event, these assumptions bias the estimates of
exposure for some or all of the modeled facilities.  Because
the population exposures are a sum of the exposures at all
facilities, the presence of these biases at one or more
facilities results in bias in the final estimate of
population exposures.  The key, but erroneous, assumptions
made by the Agency are described below.  (API, 00009, pg 7)

Response: EPA agrees with the commenter that such factors
could affect the population risk estimates.  However, there
are other factors which may lead us to underestimate risk,
such as the possibility of karst terrain or contaminated
subsurface which could result in more rapid flow of
groundwater or constituents than our models predict.  EPA
does recognize that, on balance, the population risks
presented likely overestimate risk, since one of the
objectives of the analysis was to provide an estimate of the
greatest number of people which could be affected.  Since
these estimates came out so low and, as has historically
been the case in hazardous waste listing determinations, the
Agency based its decision to propose to list the wastes
affected by this determination primarily on the significant
individual risk estimates and other factors, the Agency did
not consider it necessary to further refine the population
risk estimates .

Comment 2: 1. EPA Assumes that Residential Properties Are
Directly Adjacent to the Landfill
 
EPA's description of the ground water model does not clearly
identify the location of the plume in relation to the
landfill and other residences.  Specifically, it is not
clear whether the distance used to establish the concentric
rings that define the 400 m bands begins at the center of
the landfill or at the downgradient edge of the landfill. 
The landfills receiving the residuals are reported to range
in size from 30,000 to 162,000 m2 . (SAIC, 1995)  If the
distance used in setting the bands is defined as beginning
at the center of a landfill, then a substantial portion of
the first band (0 - 400 m) will be filled with the landfill
itself and would not be available for residential
properties.  If the distance is defined as beginning at the
center of the downgradient side of landfill, than a
substantial portion of the area in the first band is still
directly adjacent to the landfill.  Contrary to EPA's
modeling assumptions, landfills typically have some buffer
area around them which limits residential development;
landfills are not desirable land uses and tend to discourage
residential development.  Data on well distance collected by
EPA in the RCRA 3007 survey for this rulemaking clearly
indicates that wells are not located in areas directly
adjacent to on-site landfills (Vierow, 1995).  Instead, the
nearest well location was more than 300 meters from the
landfill and the median distance was greater than 1,700
meters. (Vierow, 1995) (API, 00009)

Response: With respect to a couple of the specific issues
raised, the nearest well location for the deterministic
analysis was 102 meters from the edge of the landfill. 
Also, as was discussed in the 1997 Notice of Data
Availability, EPA chose not  to use the information on
distances to wells provided in the RCRA 3007 questionnaires
because only a limited number of facilities provided this
information, and the Agency had no way to evaluate whether
those facilities could be considered representative of all
facilities (see Section I.A.6.a, comment 1, of this document
for more discussion on well distance).

In the population risk calculation presented in the 1995
Background Document for the Groundwater Pathway Analysis,
the concentric rings begin at the down-gradient edge of the
landfill.  In the absence of detailed population data and to
provide a conservative risk assessment, it was assumed in
the analysis that the population was uniformly distributed
from the edge of the landfill to the one-mile radius.

Comment 3: 2. EPA Assumes that the Aquifer Receiving
Leachate from the Landfill Is Potable and Provides Adequate
Supply for Domestic Purposes 

EPA's assessment of landfills assumes that drinking water
wells will exist in an aquifer contaminated by landfill
leachate. (EPA, 1995c)  However, in many instances ground
water is not suitable for drinking due to saltwater
intrusion, naturally occurring minerals, or because the
aquifer is not sufficiently productive.  In other cases,
ground water may be drawn from an aquifer deeper than the
aquifer receiving landfill leachate.  As a result, a ground
water well situated within the plume would not be affected
by landfill contamination.  EPA's estimates of the fraction
of homes affected by ground water contamination from a
landfill are, therefore, likely to be overestimates.  (API,
00009)

Response:  EPA agrees with the commenter that such factors
could affect the population risk estimates.  However, there
are other factors which may lead us to underestimate risk,
such as the possibility of karst terrain or contaminated
subsurface which could result in more rapid flow of
groundwater or constituents than our models predict.  EPA
does recognize that, on balance, the population risks
presented likely overestimate risk, since one of the
objectives of the analysis was to provide an estimate of the
greatest number of people which could be affected.  Since
these estimates came out so low and, as has historically
been the case in hazardous waste listing determinations, the
Agency based its decision to propose to list the wastes
affected by this determination primarily on the significant
individual risk estimates and other factors, the Agency did
not consider it necessary to further refine the population
risk estimates .

The Agency agrees with the commenter that in some instances
groundwater is not suitable for drinking due to saltwater
intrusion, naturally occurring minerals, or because the
aquifer is not sufficiently productive.  However, as part of
a conservative risk assessment, it is assumed that all
aquifers in the vicinity of the landfill could potentially
be used for water supply in the present or future, whether
or not they are currently in use as a potable water supply. 

Comment 4: 3.  EPA Assumes that Leachate from the Landfill
Reaches Ground Water

The population exposure assessments assume that all
landfills do not have a liner, clay cap, or leachate
collection system. (EPA, 1995c)  While these assumptions may
not be unreasonable for boundary or high-end analyses of
hypothetical individual exposure, it is erroneous to apply
these assumptions to all facilities.

Response:    See EPA's response to comment 1, above, for
discussion concerning how EPA evaluated factors
overestimating and underestimating population risk.

The Agency performed groundwater modeling analyses
considering landfills without engineered hydraulic barriers
such as liners, caps, or leachate collection facilities. 
Furthermore, there are no Federal regulations mandating such
containment systems in industrial landfills, and the
requirements for municipal landfills may not apply to all
such units (see response to related comment 15 in Section
IV.A).  Finally, the  Agency believes that the engineered
structures cited by the commenter may deteriorate over time
and may not provide the level of containment assumed by the
commenter.

Comment 5:  4.  EPA Assumes that there Are No Surface Water
Bodies Between the Landfill and Domestic Wells 

In the absence of detailed data on landfills receiving
refinery residuals, EPA substituted data from the OSW
database of industrial Subtitle D landfills.  However, due
to the lack of site-specificity in that database, EPA
assumed that the plume travels for one mile in a relatively
homogeneous aquifer.  (EPA, 1995c)  In reality, plumes are
often affected by changes in hydrogeology that limit their
extent.  For example, if a landfill was located 500 m from a
stream that received ground water, the plume would be
limited to the area between the unit and the stream.  Wells
beyond the stream may have little or no contamination.  As a
result, the area of a plume and the associated population
may be much smaller than the assessment suggests for some of
the facilities.

As a result of these assumptions, EPA's analysis of the
population risks and number of individuals exposed to levels
of contamination above the HBN are likely to be grossly
overestimated.  EPA's assumption that all landfills will
have residential properties directly adjacent to the
landfill is likely to result in a large overestimate in the
size of the exposed population.  (API, 00009)

Response:    See EPA's response to comment 1, above, for
discussion concerning how EPA evaluated factors
overestimating and underestimating population risk.

The interaction of surface water bodies and groundwater is
usually site-specific and complex. In order to simplify the
analysis and perform a conservative risk assessment the
presence of surface water bodies between landfills and
drinking water wells was not considered in the groundwater
risk analysis.  However, while the presence of surface water
bodies may affect plume configuration, their role is
expected to be minimal because of the bottom layer of
surface water bodies often has low permeability which limits
flow between surface water bodies and the aquifer.  If
gaining streams are located between the landfills and
domestic wells, risks are simply diverted to the surface
water pathway (and other pathways).  For the case of
recharging streams, similarly located, the flux from the
surface water bodies may force the plume to greater depths,
but may not necessarily dilute the plume.  The consideration
of surface water bodies may not reduce the impact of
contamination down-gradient from the surface water body and
is unnecessarily complex.  Therefore, the presence of
surface water bodies was not included in the risk analysis.

Comment 6:  Population Exposed Does Not Justify a Public
Policy Decision to Regulate Hydrotreating and Hydrorefining
and Clarified Slurry Oil Sediment as Hazardous Wastes. 

The risk to the population living near landfills containing
hydrotreating catalysts is 0.00003 cancer cases per year. 
This corresponds to a cancer incidence rate of 0.3 cases of
cancer in 10,000 years.

The risk to the population living near landfills containing
hydrorefining catalysts is 0.00002 cancer cases per year. 
This corresponds to a cancer incidence rate of 0.2 cases of
cancer in 10,000
years.

The risk to the home gardeners at off-site and on-site units
containing clarified slurry oil sediment are 0.0003 and
0.00005 cancer cases per year, respectively. The risk to
adult residents at off-site and on-site units containing
clarified slurry oil sediment are 0.0001 and 0.0004 cancer
cases per year, respectively.  The highest value represented
by these annual incidence rates corresponds to 4 cancer
cases in 10,000 years.  In addition, NPRA believes that the
risk determination for the home gardener which is discussed
below is flawed. (NPRA, 00004, pg 1)

Response:  In response, EPA notes that "population risk" is
not explicitly used in either the RCRA statute or the
hazardous waste listing regulations in 40 CFR 261.11.  EPA
does not believe it is appropriate to allow contamination
from waste management units to cause substantial risk to
nearby residents simply because it is a sparsely populated
area.  The Agency's decision to list these wastes is based
primarily on the concern over risks to those individuals who
are significantly exposed, even if there are relatively few
of them.  Population risk is only one of many factors to be
considered in Agency decisions, and there are numerous
precedents where the Agency has taken action, for example at
Superfund sites and in previous listing determinations, when
there are relatively few people potentially affected.  See,
for example, the report entitled Land and Soil Health Risks
from CERCLA (Federal Superfund), and WQARF (State Superfund)
Sites, Arizona Department of Environmental Quality, 1995, in
the docket for today's rule, which concluded that population
risks were low because the number of people exposed to
groundwater contamination is small.  For waste management
situations, population groundwater risks are often expected
to be low, since often only a limited number of domestic
wells will be near these facilities, and groundwater moves
very slowly.  EPA's Guidance for Risk Characterization
(USEPA Science Policy Council, February, 1995) states that,
when small populations are exposed, population risk
estimates may be very small, however, "in such situations,
individual risk estimates will usually be a more meaningful
parameter for decision-makers."  Finally, it is important to
note that the Agency is also concerned about the loss of the
groundwater resource for the future, which could be of
particular concern if land use patterns were to change and
there were a future demand for the resource.  In this case,
beneficial uses would be precluded or, if the potential
users were unaware of the contamination, risks could occur.

Comment 7: The Results of EPA's Own Conservative Risk
Assessment Support Decisions Not to List Clarified Slurry
Oil Sediment and Spent Hydrotreating and Hydrorefining
Catalysts

Under the listing criteria in 40 CFR  261.11, which are
binding upon EPA in this proceeding, EPA may list a waste as
hazardous only if EPA concludes that the waste "is capable
of posing a substantial present or potential hazard to human
health or the environment."  40 CFR 261.11(a)(3) (emphasis
added). See Dithiocarbamate Task Force v. EPA, 98 F.3d 1394,
1400 (D.C. Cir. 1996).

EPA has based its proposal to list CSO sediment, spent
hydrotreating catalyst, and spent hydrorefining catalyst
exclusively on risks or hazards to human health. As
demonstrated below however, the data in the record establish
that the actual risks to human health posed by these
residuals are near zero; as a result, EPA cannot rationally
conclude that any of these residuals poses a "substantial"
hazard to human health, and may not list any of these
residuals as hazardous wastes.

Throughout the preamble to the proposed rule, the NODA, and
various background documents, EPA's discussion of risk tends
to focus on so-called "individual risk."  In calculating
individual risk, EPA calculates the chance that a
theoretical individual exposed under worst-case conditions
will become ill (e.g., develop cancer) as a result of the
management of the waste.  Because EPA projects that a
theoretical individual exposed under worst-case conditions
has something greater than a one-in-one million chance of
developing cancer as a result of the three residuals under
consideration, EPA proposes to list them as hazardous wastes
(although apparently EPA has not made an express finding
that such theoretical risks constitute "substantial
hazards").  However, as discussed below, EPA's estimates of
potential individual risk from these residuals are
overstated and, when properly considered (especially in
light of Monte Carlo analyses) do not warrant listing under
EPA's own criteria.

Moreover, although receiving much less attention than
individual risk, EPA's projections of so-called "population
risk" are even more relevant in determining not to list
these residuals.  In projecting population risk, EPA
considers how many persons are actually subject to elevated
risk of illness or are truly expected to become ill.  These
estimate clearly are more useful in determining whether
there is a substantial hazard to human health than are
projections about what could happen to a theoretical
individual.

As discussed in detail below, the highest expected annual
cancer incidence that EPA projects using population risk
analysis for any of the three residuals proposed to be
listed is 0.0004 or four cases in 10,000 years (associated
with CSO sediment). Moreover, as discussed below, even these
incredibly low projections are likely to be overstated.

EPA's failure up to this point to give any serious
consideration to the low levels of population risk is at
odds with the statute, the listing criteria, and as
discussed below, substantial regulatory precedent within the
federal government, including EPA. Serious consideration of
the population risks in this proceeding would lead to the
conclusion that the three residuals do not pose substantial
hazards to human health, and should not be listed as
hazardous wastes.  (API, 00009)

Response: See Response to Comment 6 above.

Comment 8:  Proper Consideration of Population Risks Also
Supports Decisions Not To List Clarified Slurry Oil Sediment
and Spent Hydrorefining and Hydrotreating Catalysts as
Hazardous Wastes

EPA's proposal to list clarified slurry oil sediment and
spent hydrotreating/hydrorefining catalysts did not consider
the extremely low population risks calculated for these
residuals. As reported by EPA, the maximum annual cancer
incidence for any of these residuals (i.e., clarified slurry
oil sediment) is 0.0004 or 4 cases in 10,000 years.  (EPA,
1995a)  If EPA considers these risks properly it should
decide not to list these residuals.  Indeed, there is ample
precedent provided by other regulatory evaluations for EPA
to rely on population risk estimates in this rulemaking.
(Travis et al., 1987)
 
In an analysis of 132 federal regulatory decisions, Travis
et al. reported that for small population effects,
regulatory action was never taken for individual risk levels
below 1 x 10-4.  The primary reason cited for not regulating
chemicals below this risk level is insignificant population
risk. Among the decisions reviewed by Travis et al. was a
decision not to regulate natural radionuclide emissions from
elemental phosphorus plants as a hazardous air pollutant
under the Clean Air Act (CAA).  Although individual risks
ranged up to 1 x 10-3, EPA declined to regulate, stating
that "the risks must be weighed against both the low
aggregate risk (0.06 cancer deaths per year) and other
factors such as cost." (Travis et al., 1987)  Similarly, in
the decision not to regulate vinylidene chloride as a toxic
air pollutant under the CAA, EPA states that, based on a
cancer risk of 8.3 x 10-4 and an aggregate (i.e.,
population) risk of 0.07 cases per year, "the magnitude of
the public health cancer risk is low" (50 FR 32633, August
13, 1995).  Likewise, in the case of small populations
exposed to formaldehyde, EPA determined (under the Toxic
Substances Control Act) that individual risks ranging from 1
in 1,000 to 1 in 10 million did not present a significant
risk of serious harm and that over the lifetime of the
population there was very little risk (49 FR 21891, May 23,
1984).  These cases illustrate that, in other regulatory
contexts, at population risks greater than those reported in
the proposed petroleum refining listing, EPA decided that
further regulation was unwarranted.

EPA's Discussion of Population Risks in the Proposed Rule Is
Incomplete and Does Not Reveal that Such Risks Are
Exceedingly Low

EPA guidance provides two alternatives for the presentation
of population risks for carcinogens and noncarcinogens (EPA,
1992; 1995b).  The first approach, which is appropriate for
carcinogenic compounds where risk varies linearly with dose
(including benzene and arsenic), results in a projection of
the number of cases (of effect) that can be expected.  The
second approach, used for compounds whose risk does not vary
linearly with dose (including most noncarcinogenic compounds
and a select few carcinogens), predicts the number of people
(or fraction of the population) exposed to a dose above a
certain risk value of interest.  In the Federal Register
notice for the proposed rule, EPA elected not to use the
first approach to present population risks for the three
refinery residuals proposed for listing and used neither
approach for the land treatment of CSO sediment.  In so
doing, EPA's representation of population risks is
incomplete and therefore, misleading.  Nonetheless, using
EPA's own suggested approaches for calculating population
risks, the population risks are exceedingly low (as
described in more detail below).

Spent Hydrotreating Catalyst

In the proposed rule (60 FR 57747), EPA reported that for
off-site landfills receiving spent hydrotreating catalyst,
300 people are expected to be exposed to benzene levels
above the health-based number (HBN) (at 1 x 10-6 risk) and
that 12 people are expected to be exposed to arsenic at
levels above the HBN. This exposure would lead to only
0.00003 cancer cases per year for the population near
landfills receiving hydrotreating catalyst (EPA, 1995c). 
This cancer incidence rate corresponds to 0.3 cases of
cancer in 10,000 years.  Cancer incidence rates for on-site
landfills are vastly smaller, because the total population
living within one mile of all on-site refinery landfills
receiving hydrotreating catalyst is reported to be one
person (EPA, 1995c).

Spent Hydrorefining Catalyst 

In the proposed rule (60 FR 57747), EPA reports that for
off-site landfills receiving spent hydrorefining catalyst,
three people are expected to be exposed to benzene levels
above the HBN (at 1 x 10-6 risk) and that 25 people are
expected to be exposed to arsenic at levels above the HBN. 
Again, this corresponds to only 0.00002 cancer cases per
year for the population near landfills receiving
hydrotreating catalyst or 0.2 cases of cancer in 10,000
years.  Cancer incidence rates for on-site landfills are
vastly smaller, because, like hydrotreating catalyst, the
total population living within one mile of all on-site
refinery landfills receiving hydrorefining catalyst is
reported to be only one person (EPA, 1995c, p. 39).

Clarified Slurry Oil Tank Sediment

In contrast to spent catalysts, EPA reports population risks
for exposure to CSO sediment as follows: "For the same
scenario (off-site land treatment), the central tendency
risks for CSO sediment/solids were 3 x 10-9 for up to 90
home gardeners and 6 x 10-6 for up to 235 adult residents. .
. For on-site land treatment of CSO sediment/solids, central
tendency risks from PAHs were 7 x 10-7 for up to 76 home
gardeners and 2 x 10-6 for up to 200 adult residents" (60 FR
57789). This results in annual cancer incidence rates of
0.0003 and 0.00005 for home gardeners at off-site and on-
site units, respectively, and cancer incidence rates of
0.0001 and 0.0004 for adult residents at off-site and on-
site units, respectively.  Thus, the highest value
represented by these annual incidence rates corresponds to
four cancer cases in 10,000 years. 

As described above, EPA's existing estimates of population
risks for spent hydrotreating/ hydrorefining catalysts and
CSO sediment approach zero.  In comparison to other
regulatory decisions (see Travis et al., 1987), the
population risks from these residuals are well below the
levels that EPA has considered negligible in past regulatory
actions.  Moreover, even these low risks are overestimates. 
According to EPA's own population risk guidance, "most
cancer potency values (used to calculate the annual rates)
represent plausible upper bounds on risk.  When such a value
is used to estimate numbers of cancer cases, it is important
to understand that the result is also an upper bound" (EPA,
1995b, p. 17).  Furthermore, as discussed below, EPA has
overestimated both exposure and population sizes for
landfilled and landtreated residuals, resulting in further
overstatements of the population risks.  (API, 00009)

Response: As previously discussed (see response to comment 6
above), for listing determinations, the Agency has used
primarily the individual risk estimates as the basis for its
decisions.  To the extent the Agency has evaluated
population risks, they have always been low due to the
limited potential impact of contaminated groundwater. 
However, the Agency again emphasizes its concern over the
loss of the groundwater resource.  In addition, the economic
impacts of this regulation are very minimal.

There are any number of ways to present population risk, and
the Agency does not believe that its presentation is
misleading, particularly since the Agency and the commenter
have both reached the same conclusion, namely that
population risks are low. 

IV.C.     Waste Management Practices Assessed

Comment 1:  In its comments on the 1995 proposal, EDF
identified a large number of waste management practices
documented by EPA that were not evaluated by the Agency in
its risk assessments.  These unevaluated practices include
surface impoundment management, use of wastes as landfill
cover, use of wastes as onsite road material, and the
storage of off-spec products and fines on piles prior to
reuse onsite or shipment offsite.  These deficiencies remain
insofar as the NODA materials do not include evaluations of
these practices.

However, the NODA materials do contain information that are
relevant to these scenarios, and therefore warrant comment
on the issue of whether risk evaluations of these scenarios
are still necessary and appropriate.

Response: Modeling of surface impoundments is discussed
further below in Comment 2.  Use of wastes as onsite road
material is discussed in response to Comments 1a  through 1d
.  Storage of off-spec product and fines on piles is
discussed in Comment 3 below, as well as in Section II.B.1.

EPA notes that the waste management method of use as
landfill cover was only reported by one refinery in 1992. 
EPA determined that one facility managed its crude oil tank
sludge as "cover for onsite landfill" in 1992.  In this
particular case, the waste was mixed with soil, weathered,
and then used as cover.  EPA also found that the landfill no
longer accepts wastes.  The fact that only one facility was
found to conduct this activity, and has since discontinued
the practice, does not lend credence to the commenter's
opinion that such practices could become more widespread in
the future.  It is reasonable to expect that they would be
rarely conducted by facilities based on the 1992 data.

Comment 1a:  For example, EPA has claimed its modeling of
land treatment units would account for the risks posed by
roadspreading or other uses constituting disposal. 
However, in the NODA, only six onsite land treatment units
were evaluated for individual wastes, and only one unit was
evaluated for the onsite codisposal scenario, therefore
site-specific modeling inputs are unlikely to be
representative of all roadspreading or landspreading
locations.

Response:  EPA disagrees with the commenter that the use as
road material scenario was not adequately considered. 
First, EPA reiterates that only two refineries managed CSO
sediment as road bed material in 1992:  one managing 97
metric tons and the other managing 314 metric tons.  These
data demonstrate that this is a rare management practice
(i.e., 1 percent of the U.S. refineries used CSO sediment
for road bed in 1992).  EPA also notes that CSO tank
sediment will be listed and any use as road material will be
prohibited (unless the material is treated to meet land
disposal restriction standards and other requirements as
specified in 266.20).

Second, EPA contacted these two facilities, plus two others
who reported this management practice in other years to
better understand this management practice.  Based on these
contacts, two of the four facilities no longer manage this
residual as roadbase material.  One facility, which reported
a total generation of 3 MT of residual, may mix a small
percentage of the de-oiled residual with dirt to be used
onsite for road repair.  The fourth facility plans to manage
approximately 97 metric tons per year of oily residual by
transferring it to an off-site facility that will use it in
the production of roadbase material.

In presenting its results of the high end risk assessment in
the preamble for the management of CSO sediment in a land
treatment unit (60 FR 57765), EPA did not assume that any
runoff controls were present which is comparable to what
would have been assumed if a road bed scenario had been
modeled.  The significantly lower volumes reported for road
bed management would accordingly have lower risk when
compared with land treatment models.  Furthermore, CSO
sediment is mixed with other materials such as dirt, gravel,
and/or asphalt, which may result in even lower risks through
adherence of CSO sediment to these materials retarding the
rate of release.  Refineries did not report any other of the
residuals evaluated for listing as being managed as road
material.

Thirdly, EPA disagrees that the number of land treatment
units modeled is insufficient to reflect a broad range of
conditions.  With respect to land spreading, EPA's review of
the existing land treatment units, as characterized in the
1992 PRDB, indicates that the majority of these units are in
fact permitted and thus not appropriately considered in
EPA's modeling input.  Areas for each of the six modeled
units ranged in size over three orders of magnitude, from
0.6 to 15.8 acres.  The six units were drawn from the larger
set of approximately 28 onsite land treatment units
(hazardous and nonhazardous) managing any of these six
wastes.  EPA believes that its modeling input are fully
reflective of land treatment conditions in the industry.

In summary, EPA continues to assert that the modeled land
treatment conditions are adequate surrogates for road
spreading because:

     the land treated volumes greatly exceed the reported
     road spread volumes

     the land treatment areas are likely to be much greater
     than the areas subjected to road spreading and are
     likely to result in much higher modeled receptor point
     concentrations

     road spreading generally requires mixing with other
     materials (e.g., gravel, asphalt), diluting the
     concentration of the toxicants of concern and reducing
     risk

     road spreading is generally conducted in a manner to
     create a stable road base that will not wash away due
     to precipitation or erode away due to road traffic,
     unlike land treatment units which are operated to allow
     for precipitation and oxygen infiltration to maximize
     biodegradation

     material used as base is less likely to be released in
     nongroundwater pathways than material managed by land
     treatment because it is covered by additional fill,
     aggregate, or pavement.
     EPA used six of six non-hazardous waste LTUs identified
     by the petroleum refining industry in the 1992 survey
     as model inputs.  This represents 100 percent of the
     possible conditions, as well as a wide range of model
     input values, as discussed above.

Comment 1b:  In addition, only risks from PAHs were covered
by the NODA LTU Risk Assessment codisposal scenarios, while
risks from other contaminants may be significant if
roadspreading was evaluated, particularly if the
roadspreading is conducted close to surface water bodies and
ecologic effects are considered.

Response:  The initial screening risk assessment analyses
considered the full range of contaminants for which health
effects data existed.  If risk was not indicated using the
worst case screening parameters for a given contaminant,
further consideration during the two-high end deterministic
risk assessment was not warranted.  Ecological effects from
waste management practices, including land treatment, are
presented in the 1995 Nongroundwater Background Document. 
EPA believes that the conclusions and uncertainties
regarding ecological risk from land treatment can be applied
to ecological risk from road use for the same reasons,
listed in response to Comment 1.a, that EPA believes makes
the land treatment scenario representative of the road use
scenario. The surface water runoff scenario was evaluated as
part of the subsistence fisher scenario.  Therefore, EPA has
no indication that other constituents would be of concern,
nor did the commenter identify any such contaminants.

Comment 1c:  Moreover, EPA justifies not summing the risks
posed by both LTU and landfilling at the same onsite
facilities because in the vast majority of instances the
LTUs are hazardous waste units with runoff controls. 
Since roadspreading may also co-occur with landfills at the
same of different locations, and would not involve hazardous
waste units with runoff controls, the Agency's rationale for
not summing risks is irrelevant in the case of roadspreading
or other uses constituting disposal.

Response: EPA asserts that the many reasons listed above
point toward the risk from land spreading being
significantly less than the risk from land treatment.  EPA
could not identify any facilities where landfilling and
roadspreading occurred for the same residuals and,
therefore, has no obligation to model such a scenario.  Risk
assessment results demonstrated that the risk from
landfilling was also significantly less than the risk from
land treatment, and in fact the indirect pathways associated
with landfilling were not evaluated beyond the initial
screening analyses because it was assumed that landfills
would be covered and sludges would not generate dust during
waste hauling activity.  See, for example,  Section 2.2.1
and  Section 6.4 of the 1995  "Assessment of Risks from the
Management of Petroleum Refining Wastes."  EPA concluded
that without these release pathways nongroundwater risks
from landfills would be negligible.  Therefore, any
nongroundwater risks from landfills and road beds in close
proximity would result from road beds alone.

EPA notes that it has no information regarding the location
of roadspreading operations and knows of no reason why the
probability of such operations being adjacent to landfills
without runoff controls would be greater than the
probability of non-hazardous waste land treatment units and
landfills without runoff controls being co-located.  Given
the infrequency with which roadspreading was reported, such
probabilities are expected to be very small.

Comment 1d:  Finally, the waste volumes evaluated both for
the individual waste and codisposal scenarios are not
indicative of the volumes of wastes that may be used for
roadspreading or other landspreading activities, as
discussed immediately below.

In API's annual reports on residuals, land treatment and
landspreading activities are reported separately, the latter
activity included with other disposal practices. 
Accordingly, landspreading can be considered as inclusive of
roadspreading and other uses constituting disposal.  For
1993, API reports 170,439 tons of refinery wastes were
landspread that year, including 4,882 tons of "nonleaded
tank bottoms".  In all, landspreading was employed for 10
different waste categories in 1993, indicating widespread
application in the industry.  Further, the amount of waste
landspread in 1993 increased by over five-fold when compared
to 1992, the year on which EPA's management data is based. 
Clearly, landspreading is an important waste management
practice in the refinery industry that EPA has
inappropriately ignored in this rulemaking to date.  The
landspreading or roadspreading of oily residuals covered in
this rulemaking is both an actual and plausible
mismanagement practice, and EPA's 1992 volumes are not
representative of actual and potential industry practices. 
(EDF, 00006, pg 60)

Response:  EDF misinterpreted API's data regarding
management of residuals by means of road spreading.  The
"landspreading" category used in the API report cited by EDF
includes all landspreading activities, only one of which is
road spreading.  The use of landspread quantities is
therefore not necessarily indicative of quantities road
spread.  EDF also stated that the quantities landspread
could increase dramatically from the 1992 data used by EPA. 
The increase between 1992 and 1993 landspread quantity data
was due almost exclusively to an increase in biomass and
contaminated soils/solids, residuals which are not even
under consideration for this listing determination.  While
there was a small increase in nonleaded tank bottoms
landspread from 1992 to 1993, only one facility reported
managing nonleaded tank bottoms via landspreading.

Comment 2:  Finally, regarding the lack of surface
impoundment modeling, it is instructive that EPA modeled the
onsite land treatment of sulfuric acid alkylation sludge in
a nonhazardous waste unit even though no refinery reported
using that practice in EPA's 1992 database.  EPA determined
"any facility that reported the presence of an operational
sulfuric acid alkylation unit and the presence of an onsite
land treatment unit that could be used for disposal of this
waste were considered appropriate for disposal of this
waste."

Unfortunately, EPA fails to carry through on that approach
with respect to surface impoundment management,
notwithstanding the availability of surface impoundments at
many refineries.  In 1993, API reports "disposal" surface
impoundments were used for the management of 42,553 tons of
refinery wastes.  Nine different categories of wastes were
managed in surface impoundments that year, including
"nonleaded tank bottoms" and "residual oils/spent
solvents.  In 1994, API reported 31 refineries had
nonhazardous waste impoundments ranging in size from 1-350
acres.  Therefore, surface impoundment disposal is both an
actual and potential plausible mismanagement scenario at
petroleum refineries.

The Agency's continuing failure to model the surface
impoundment management of HF alkylation sludge is
particularly inappropriate given the waste is sometimes
generated in "pits", samples were collected from these
"pits", and the practice was reported for 1992.  While the
NODA materials provide no explanation for this failure, EPA
staff indicated orally that they believe surface impoundment
modeling is not necessary because the "pits" are concrete-
lined, and therefore may meet the regulatory definition of
tank.

However, this rationale is too cute by half, since the fact
that the waste is managed in a pit means surface impoundment
management is certainly plausible and reasonable to project
as a potential mismanagement scenario.  Moreover, the
Agency itself has recognized for years that its ambiguous
definition of "tank" causes unintended consequences,
including allowing surface impoundments to masquerade as
inground tanks.  Therefore, even if the pits could legally
qualify as tanks now, EPA should not compound the
shortcomings in its rules by projecting the weakness forever
into the future, or failing to consider the potential for
management in pits that could not or should not satisfy the
regulatory definition of tank.  The issue in this context is
not whether the particular pits used in 1992 could meet the
admittedly flawed EPA definition of tank, but rather given
the practice of using pit-like units for HF alkylation
sludge and the ready availability of surface impoundments
for this purpose, it is plausible that surface impoundments
could be used to manage this waste sometime in the future. 
(EDF, 00006, pg 65)

Response: See response to comment 1 in Section IV.H.2 of 
the proposed rule response to comment document for a full
discussion of why EPA does not believe modeling impoundments
for HF alkylation sludge is warranted.

EPA continues to maintain that its 1992 data is
representative of disposal practices and that to incorporate
increased reliance of surface impoundments is not plausible,
particularly in light of EPA's knowledge that such practices
are being discontinued and the costs associated with
construction and permitting.

With respect to the commenter's claim of the frequency of
surface impoundments at refineries, EPA's data on the
presence of surface impoundments at refineries is limited to
those instances where a residual identified in the survey
was managed in a surface impoundment, and refineries were in
fact discouraged by the Agency from providing detail of
their wastewater treatment train (where surface impoundments
may be present).  The basis for this instruction was that
such wastes would be subject to the existing F037/F038
listings and units downstream from F037/F038-generating
units were so far removed from the original 29 residuals of
concern to this industry study that no benefit would be
realized from further study.  Based on its limited data, EPA
identified 8 refineries with surface impoundments that are
not part of the facility's wastewater treatment train.  Of
these 8 refineries, 4 exclusively manage FCC fines and 4
manage other wastes in their impoundments.  EPA believes it
is unreasonable that a refinery would begin to co-manage HF
alkylation wastes with FCC fines because the ponds were
constructed specifically for managing FCC fines.  EPA does
not believe that the remaining 4 refineries (some of which
are known to have discontinued using their impoundments)
represent an "ample number" of refineries with surface
impoundments.  EPA observed during its site visits that the
HF pits were used to prevent fluorides and low pH wastes
from being discharged to the wastewater treatment facilities
in large quantities.  Fluorides were described by several
refineries during these site visits to create effluent
compliance problems.  Thus, removal in the HF pits
associated with the units makes sense from a processing
perspective.  In addition, several refineries described
changes that they had made or were contemplating regarding
their methods of HF acid neutralization.  Certain
methodologies result in a higher purity fluoride salt which
is amenable to off-site sales as a fluoride raw material. 
These process considerations also contribute to the
unlikelihood that refineries would increase their use of
impoundments for HF process waste neutralization.

The commenter is correct in stating that EPA modeled the
onsite land treatment of sulfuric acid alkylation sludge in
a nonhazardous waste unit even though no refinery reported
using that practice in EPA's 1992 database.  In this case
EPA was simply attempting to complete the revised risk
analysis for land treatment for wastes that were evaluated
in the initial proposal.  As noted in the NODA analysis, EPA
had realized that most of the land treatment units used to
establish area for modeling in the proposal were, in fact,
permitted hazardous waste units.  After correcting for this
oversight, EPA was left with few nonhazardous units to use
for defining land treatment areas.  Thus, in this case, EPA
used the volume of the onsite land treatment unit for the
only facility that also reported the presence of an
operational sulfuric acid alkylation unit.  In any case,
this analysis had no impact on EPA's final decision because
under either scenario, no significant risk was found from
land treatment of this waste.

Comment 3:  Similarly, in response to a FOIA request on off-
spec products and fines, EPA provided information on interim
and final management methods for this waste, as reported in
the industry survey.  According to this EPA data, several
respondents reported storing off-spec products and fines in
surface impoundments as an "interim" management method. 
Moreover, storage in a surface impoundment, followed by
storage in a pile, and subsequent transfer for fuel use, was
considered a "treatment train of interest".  Yet EPA still
refuses to model the management of off-spec products and
fines in surface impoundments. (EDF, 00006, pg 67)

Response:  In regards to the FOIA request, only one
respondent, not several, reported managing off-spec product
and fines in a "surface impoundment" in 1992.  Furthermore,
in this one case this "surface impoundment" was actually a
drilling water clarifier.  All delayed coking units recycle
their drilling water.  To do so, any entrained fines in the
drilling water must be recovered.  Typically, the concrete
coke storage pad is sloped so that drilling water drains to
one end and proceeds through a series of baffles which
separate out the coke fines.  It is EPA's understanding that
this is the type of "surface impoundment" the refinery is
referring to and not a surface impoundment which is
typically part of a wastewater treatment system but an
integral part of the decoking process.  These are lined
(concrete) drilling water collection and recycle systems,
confined within the coke battery, and would pose
insignificant risk.  Therefore, modeling of off-spec product
and fines in an impoundment would not be appropriate. 
Furthermore, this particular waste is essentially solid coke
material, and to project management of this waste in a true
impoundment, which is for liquids, would be unreasonable.IV.D
BIF Rule Exemption

Comment 1:  In the initial rulemaking notice for the
proposed listing of K171 and K172, EPA noted that "[b]ecause
reclamation of metals from . . . spent hydrotreating and
hydrorefining catalysts involves thermal processing of RCRA
hazardous wastes, there has been confusion regarding whether
these catalyst recovery furnaces are subject to regulation
as a type of industrial furnace (as defined in 260.10 of
the RCRA regulations)."  60 Fed. Reg. 57747, 57780 (November
20, 1995).  EPA proposed "to clarify the regulatory status
of these units by specifically excluding them from
regulation as industrial furnaces under RCRA" (see id.) for
the following reasons. 

First, EPA did not specifically consider these units in
developing the BIF rule.  See id.

Second, these units "differ from the types of furnaces
specifically considered in the BIF rule in that the process
involves burning of hazardous waste solely for materials
recovery as opposed to destruction or energy recovery."  Id.

"In this sense," EPA observed, "spent petroleum catalyst
recovery units are analogous to smelting, melting, and
refining furnaces that process hazardous waste solely for
metals recovery."  Id.  Such units, EPA pointed out, "are
conditionally exempt from the Subpart H [BIF] regulations
because the process does not involve burning either
partially or wholly for destruction or energy recovery." 
Id.

Third, "spent catalyst . . . metals recovery operations
provide an environmentally sound alternative to disposal of
spent petroleum catalysts." Id.  EPA did "not want to impose
any unnecessary regulatory burden that may serve to
discourage [such] environmentally safe recycling."  Id.

For these reasons, EPA proposed to formally exempt spent
hydrotreating and hydrorefining catalyst recovery furnaces
from the BIF rule by means of an amendment to 40 CFR
266.100(b).

We agree fully with the rationale for this proposed
exemption, and we believe it can be implemented effectively
by amending 40 CFR 266.100(b).  However, the specific
language EPA has proposed for this amendment is not well
designed to achieve its objective.  In particular, proposed
subsection 266.100(b)(5) would exempt a catalyst recovery
furnace if the only hazardous wastes burned are K171 and/or
K172.  See 60 Fed. Reg. at 57797.  Presumably, this
limitation was intended to ensure that industrial furnaces
currently subject to BIF rule requirements would not
suddenly gain an exemption from the BIF rule by adding K171
or K172 spent catalysts to their existing slate of hazardous
waste feed materials.

We do not quarrel with that objective.  Unfortunately, as
drafted, the proposed limitation would have a much broader
impact.  In particular, smelting, melting, and refining
furnaces that currently are conditionally exempt from the
BIF rule under 40 CFR 266.100(c) would not qualify for the
catalyst recovery furnace exemption under proposed
266.100(b)(5) because they process other hazardous waste for
metal recovery.  Surely EPA did not intend to force INMETCO
and other HTMR facilities to choose between the 266.100
(c) exemption for smelting, melting, and refining furnaces
and the 266.100(b)(5) exemption for petroleum catalyst
recovery furnaces.  To the contrary, as noted above, the
rationale that EPA advances for the proposed 266.100(b)(5)
catalyst recovery furnace exemption is the same one that
supports the conditional exemption under 266.100(c) for
smelting, melting, and refining furnaces.  It would be
illogical and environmentally counterproductive to structure
266.100(b)(5) in a way that precludes a currently exempt
process like INMETCO's from qualifying for the exemption. 
Many K171 and K172 spent catalysts will have a high nickel
content (some as high as 50% or more), and INMETCO has the
capacity to process 2,000-4,000 tons of these catalysts
annually.  EPA should not force INMETCO to forego the
reclamation of such materials in order to maintain its
exempt status under the BIF rule.

The problem can be remedied by revising proposed
266.100(b)(5) to read as follows:

          "Furnaces that recover spent hydrotreating
     catalyst from petroleum refining operations (EPA
     Hazardous waste No. K171) and/or spent hydrorefining
     catalyst from petroleum refining operations (EPA
     Hazardous waste No. K172) if those are the only
     hazardous wastes burned or processed in the furnace, or
     if any hazardous wastes in addition to K171 and K172
     are processed in the furnace solely for metal recovery
     in accordance with the conditional exemption of         
     266.100(c), in which case the owner and operator of the
     furnace remain subject to 266.101 and 266.112." 
     (INMETCO, 00003, pg 5)

Response:  The Agency believes that the commenter's concern
is moot.  This is because EPA is not finalizing its proposal
to exempt from permitting requirements under Part 266.100(b)
third party units regenerating and reclaiming hydrotreating
and hydrorefining spent catalysts. EPA is deferring to a
later day any final decision on whether or not to exempt
these units from RCRA Subtitle C air emission standards.  In
the interim, EPA reiterates that nothing in today's rule (or
indeed the proposed rule) changes the current RCRA status of
facilities managing these hazardous wastes.

IV.E.     Implications of Listing Catalysts

Comment 1:  We believe there are a number of unintended
consequences that will result if hydrotreating and
hydrorefining catalysts are listed.  The status of water
used to remove catalyst is very important, but is one of
several potentially damaging consequences of listing this
catalyst as hazardous.  We believe the best solution to this
problem is to not list these catalysts as hazardous.

The EPA assumes that listing these catalyst as hazardous
will reduce management risks and encourage their recycling. 
However, a review of the logical consequences to listing
suggests otherwise.  Following is a stepwise discussion of
the management consequences that can occur if the catalyst
is listed.  (Chevron, 00014)

Response:  EPA discusses each of the commenter's points
below.

Comment 1a:  Reactor Shutdowns

Consequences if Listed: The shutdown process would no longer
have the incentive of reducing benzene below the
characteristic level.  Catalysts sent to reclaimers will be
generated and managed containing more characteristics of
hazardousness.  Much catalyst that is currently reclaimed
would instead be disposed due to higher shipping and
reclaiming costs.

Current System: A reactor shutdown for a catalyst change-out
is a process that can take from one to seven days depending
in part on how long the catalyst will be stripped. 
(Stripping is the use of process gas to purge the catalyst
of volatile organics and to aid in the cooling of the
reactor prior to shutdown.  It is a closed process with the
hydrocarbons recovered for further processing.)  The
stripping process will significantly influence the benzene
content of the spent catalyst.  At the Chevron Pascagoula,
Mississippi Refinery, the refinery further treats the
catalyst after it is removed form the reactor so that it is
not ignitable or reactive.  Deactivation also removes or
significantly reduces the self heating characteristic of the
catalyst.  This is done to lower subsequent transportation
and handling costs.  However, RCRA permit and air emission
limits for the treatment process require that the spent
catalyst not be characteristically hazardous for benzene, or
fail the benzene waste NESHAP.  Therefore, there is
currently an incentive to run the stripping cycle with a
clean gas and long enough to remove benzene (and with it
other organics) to levels that do not pose a TC or NESHAP
problem.

Thus, the Pascagoula spent hydroprocessing catalyst is
sampled regularly upon generation and is typically low in
benzene and other organics as shown in Table 1 [of Chevron's
comment].  In addition, we also test other spent catalysts
that are not from hydroprocessing units.  We have found that
generator knowledge and proper characterization of waste is
derived from an adequate sampling program.  Pascagoula has
over 200 lab analyses of spent catalyst from units that are
not hydroprocessing units.  Klaus Catalysts from Sulfur
Recovery Units, Precious Metal catalysts from reformers,
isomerization catalyst from chemical processes, spent
alumina and molecular sieves from hydrating processes, FCC
catalyst, and chloride guard, shift converter, and
methanator catalyst from Hydrogen plants are also screened
for hazardous characteristics.

          Sampling of Pascagoula Spent Catalyst 1988-97


Analysis;
No. Sampled;
Results Above DL;
Results Above Regulatory Limit;
Log Average of Results Above DL;

TCLP Benzene; 39; 7; 2; 0.086 mg/l

TCLP Arsenic; 69; 17; 1; 0.19 mg/l

Self Heating; 139; na; 49; na

Sulfide Reactive; 184; na; 13; na


Discussion:  If the catalyst is listed as hazardous, many
refineries would lose the incentives to generate a catalyst
that is characteristically non-hazardous.  At Pascagoula,
the treatment step would be abandoned and the reactor
shutdown would be optimized to reduce costs with little or
no regard for the benzene content in the generated catalyst.

Thus, if the catalyst is sent to a reclaimer, it will not
contain several characteristics of hazardousness whereas
before listing, it would have been shipped with no hazardous
characteristics.  Therefore, one consequence of listing is
that catalyst being reclaimed will become more hazardous to
manage.

However, another likely consequence is that catalyst that is
currently reclaimed would instead be disposed when listed. 
Prior to listing, a method exists to treat and ship the
catalyst as non-hazardous keeping shipping cost low.  If
hazardous, shipping costs to one of the few reclaimers may
no longer be tolerable, depending on distance.  Thus,
disposal in a nearby Subtitle C landfill is likely to be
attractive.  If the catalyst is to be disposed in a nearby
landfill, then the process might be operated to generate
catalyst that will meet LDRs for organics.

An existing example of this situation is the case of
California generated catalysts.  Due to the California-only
hazardous waste characteristic that includes nickel as a
toxicity characteristic constituent, most California
generated spent catalyst must be shipped as hazardous. 
While our Pascagoula refinery typically recycles its
catalyst, our California refineries instead dispose of it as
hazardous in a nearby RCRA permitted TSDF, rather than
shipping the spent material to a facility in Texas for
recycling.  The higher shipping and recycling costs strongly
influence this economic decision.  Listing the catalyst will
create the same situation around the country.  Since the
Pascagoula refinery is closer to hazardous waste TSDFs, than
to Texas metal reclaimers, listing the catalyst will
encourage them to choose the closer disposal option.

Another example of the incentive to remove or change a
characteristic is Chevron's choice to change from a chromium
based low temperature shift reaction catalysis (H2) + CO  
CO2 + H2) to one without chrome to avoid the chromium
characteristic.  If it had been listed as hazardous, there
would be no incentive for this change.

This discussion shows how listing removes incentives to
avoid characteristics that actually cause the material to be
hazardous.  (Chevron, 00014)

Response: EPA has decided to finalize its listing of K171
and K172 because they contain mobile levels of benzene and
arsenic.  When listed, such wastes would require management
as hazardous wastes such as proper containment during
transport, and management in Subtitle C disposal units. 
These wastes will also be subject to BDAT controls for these
constituents.  Therefore, EPA believes that any increase in
benzene levels in these wastes (as claimed by the commenter)
would be mitigated by Subtitle C management.  However, EPA
does not believe that refineries would discontinue or
otherwise severely shorten the stripping process because an
additional purpose of stripping is to decrease levels of
volatile materials such as hydrogen sulfide inside the
reactor vessel (as well as for allowing recovery of saleable
product).  Through its site visits, EPA has observed that
refineries operate stripping cycles to reduce levels of this
constituent for worker safety reasons (in fact, the
uncertainty in predicting how long the stripping process
takes to achieve the desired levels often resulted in
uncertainty in scheduling record sampling trips by EPA).

Following promulgation of the listing, a refinery would be
required to ship the waste as hazardous to a Subtitle C
landfill, after compliance with all applicable BDAT
standards, or to a catalyst reclamation facility.  While the
economics surrounding future catalyst management as a
hazardous waste is complex, the Agency notes that (1)
refineries include factors such as liability concerns to
avoid land disposal, and (2) 25 percent of the catalyst
received by one catalyst recycler is RCRA hazardous (1995
Listing Background Document).  Therefore, at present at
least some refineries elect to send their characteristic
hazardous waste to a catalyst recycler (using Subtitle C
shipping requirements) rather than to a Subtitle C landfill.

EPA does not believe the example cited by the commenter is
relevant to the discussion.  A catalyst performing such a
reaction is not a hydrotreating or hydrorefining catalyst in
the context of the rule.  Such a discussion would be
relevant if chromium (for example) was used as a raw
material in hydrotreating and hydrorefining catalysts. 
Information available to EPA (in the 1995 Listing Background
Document) shows little use of metals other than nickel,
cobalt, and molybdenum in fresh hydrotreating and
hydrorefining catalysts.

Comment 1b:  Catalyst Dumping

Consequences if Listed: The complexity of managing large
volumes of catalyst as hazardous would increase the injury
rate during dumping from 0.55 injuries to 7.1 injuries per
million tons, over a ten fold increase.

Current System: Catalyst being generated with intent of
managing it as non-hazardous (both DOT and RCRA) will be low
in benzene, not reactive or self heating, and not require a
NESHAP tight container.  This will allow dumping in large
end dump trailers holding approximately 22 tons per load. 
In Pascagoula, the man-hours required to dump 900 tons (one
reactor) is approximately 50 hours using these trailers. 
The refinery reportable injury rate is around 2 injuries per
200,000 hours.  Thus, we can expect 0.55 injuries per
million tons managed.

Catalyst that is listed hazardous waste will most likely be
managed in TBC Type 56 flow bins.  These hold approximately
3 tons per bin, are more labor intensive, and would require
4 employees 20 days to load (640 man hours) a 900 ton dump. 
For this mode of management, one can expect 7.1 injuries per
million tons managed for this bin loading portion of the
process.

Discussion: The significantly higher number of hours
associated with managing these bins results in significantly
more injuries per ton of catalyst due in part to the
listing.  These injury rates (per hour) are typical for
refining and the higher rate of injury per ton are expected
to be real.  It is questionable, therefore, whether this
listing can be argued to protect human health.

On a related note, Chevron has designed and is patenting a
large NESHAP tight bin that is nearly the same capacity as
end dump trailers.  This may begin to mitigate these new
risks.  However, only one Chevron refinery currently has
them available for use and there is no current indication
that others, especially outside of Chevron, will use them. 
(Chevron, 00014)

Response: During its site visits and record sampling events,
EPA has generally observed that hydrotreating and
hydrorefining catalyst is dumped into flow-bins in drums. 
Based on these observations, EPA concludes that few
refineries use the type of trailers cited by the commenter,
and therefore disagrees that a general industry-wide shift
in container practices will occur because most facilities
already use the flow-bin containers (or similar) cited by
the commenter.

In general, workers conducting operations involving
hazardous wastes are required to undergo additional training
than workers not involved in hazardous waste operations. 
Additionally, worker safety is generally under the purview
of OSHA.

Comment 1c:  Catalyst Deactivation:

Consequence if Listed: The catalyst would not be deactivated
if listed.  It would simply be shipped as generated as a RQ,
Waste, Self Heating, Solid, Inorganic, n.o.s. 4.2, UN3190,
III (K171, D018, D003) which is the proper shipping name for
DOT self heating hazardous material that is also a RCRA
reactive hazardous waste that contain benzene.

Current System: At the Pascagoula Refinery, the spent
catalyst is dumped and then taken to a RCRA permitted pad
(permitted to handle reactive materials). The catalyst is
spread out in piles no more than 3 feet high and allow to
air oxidize and cool.  Heavy equipment is sometimes used to
turn the catalyst, as turning the catalyst increases both
the oxidation and the cooling after oxidation is complete. 
Treating the catalyst on the pad usually eliminates sulfide
reactivity and eliminates or reduces self heating.  The
permit requires a pad liner, roof, concrete pad, ground
water monitoring wells, and weekly inspections.  The pad is
covered to protect it from rain.  The exposure of workers
who work the catalyst are governed by OSHA requirements (29
CFR 1910.1000), which requires appropriate personnel
protective equipment.  Additionally, exposures are monitored
using NIOSH published Sampling and Analytical Methods. 
Various types of protection are used to insure that
exposures are below PEL limits.  The catalyst typically
remains on the pad for about 4 weeks.

Discussion: The catalyst would not be deactivated if listed
as discussed under the reactor shutdown section above.  It
would simply be shipped as generated as a RQ, Waste, Self
Heating, Solid, Inorganic, n.o.s. 4.2, UN3190, III (K171,
D018, D003) which is the proper shipping name for DOT self
heating hazardous material that is also a RCRA reactive
hazardous waste that contains benzene.  (Chevron, 00014)

Response: EPA has decided to finalize its listing of K171
and K172 because they contain mobile levels of benzene and
arsenic.  The treatment described by the commenter would
remove the reactivity characteristic.  However, it would not
necessarily address the potentially toxic levels of
constituents that have been identified in these wastes. 
Therefore EPA believes that finalization of the listing is
appropriate.  Note that the BDAT standard for these wastes
includes deactivation for reactive sulfides.

Comment 1d:  Shipping

Consequence if Listed: The higher cost of shipping material
as hazardous waste will provide strong incentives to find
local solutions.  Typically, this will mean disposal in a
local Subtitle C landfill rather than shipping longer
distances to a reclaimer.

Current System: Occasionally the deactivated catalyst will
still fail the DOT self heating test.  This is a very
stringent test that requires heating to 140C and monitoring
for 24 hours to see if the temperature rises above 200C. 
While this material is not ignitable, it may still require
shipments as a DOT hazardous material due to self heating. 
The cost for shipping a hazardous material is about 2/3 of
the cost for hazardous waste.  Shipment as non-hazardous
materials is about 1/3 of that for hazardous waste. 
Shipping of a hazardous waste can easily exceed $100/ton
($0.40 per ton-mile) and is often the largest cost factor in
deciding whether to recycle or dispose of the material.  If
managed as non-hazardous, the economical management options
reach over a much greater distance.

Discussion:  The high cost of hazardous waste transportation
typically means a refinery is limited to management options
which are closer to home.  As discussed above, the cost of
recycling catalyst from our California refineries is high
due in part to it being a California only hazardous waste. 
Thus, these materials are treated and disposed in a
California hazardous waste TSDF.

The logical consequence of listing is that fewer people can
now afford the higher shipping costs to one of the few
reclaimers that exist, and will instead choose to dispose in
a local hazardous waste TSDF.  Thus, less catalyst will be
reclaimed and more will be disposed.  Another consideration
is that at our Pascagoula Refinery, a listing would require
us on an annual basis to generate at least 400 more
hazardous waste manifests, 400 more Benzene NESHAP shipping
notifications, and 400 more LDRs notifications.  Since this
would increase the hazardous waste shipments and paperwork
burden for preparing these shipments from this facility
tenfold, they would have an incentive to use a nearby TSDF,
instead of a Texas metal reclaimer.

Most RCRA permitted TSDFs provide manifests, shipping
labels, on site service support, and land disposal
restriction notifications as part of their customer service.

Competition between hazardous waste commercial facilities
has caused their customer service departments to increase
their level of service to their customers.  This same level
of service is not currently available from the major
catalyst metal reclaimers, who are fewer in number than
their rival TSDFs, and further distance away from much of
their potential customer base.  (Chevron, 00014)

Response: See response to Comment 1a.