[Federal Register: October 20, 2003 (Volume 68, Number 202)]
[Notices]               
[Page 59935-59940]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20oc03-45]                         

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ENVIRONMENTAL PROTECTION AGENCY

[RCRA-2003-0023; FRL-7576-1]

 
Hazardous Waste Management System: Petroleum Refining Process 
Wastes; Identification of Characteristically Hazardous Self-Heating 
Solids; Land Disposal Restrictions: Treatment Standards for Spent 
Hydrorefining Catalyst (K172) Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of data availability.

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SUMMARY: This notice of data availability (NODA) makes available to the 
public certain analytical data pertaining to the polyaromatic 
hydrocarbon (PAH) content of spent hydrorefining catalyst from 
petroleum refining operations (K172). These analytical data are 
contained in a petition for rulemaking (petition) submitted to EPA by 
the Vanadium Producers and Reclaimers Association (VPRA), formerly 
known as the Ferroalloys Association (TFA). The data were submitted by 
the petitioner to support its request that EPA amend the land disposal 
restriction (LDR) treatment standards for the K172 listed waste. The 
VPRA petition also asserted that K171 and K172 wastes are often being 
landfilled without being decharacterized for their ignitability/
reactivity potential. Therefore, this notice provides information 
supporting the petitioner's assertions and requests comment and 
submittal of any additional relevant documentation. At this time, EPA 
is requesting comment only on the analytical data for K172 and 
information supporting VPRA's concerns about characteristically 
hazardous solids. The Agency is not proposing any rule changes in 
today's notice, and any future action the Agency takes in response to 
the VPRA petition will be noticed in a subsequent Federal Register.

DATES: Submit comments on or before December 4, 2003. Comments 
postmarked after this date will be marked ``late'' and may not be 
considered.

ADDRESSES: You may view the supporting materials for this NODA in the 
EPA Docket Center (EPA/DC), Room B102, EPA West, 1301 Constitution 
Avenue, NW., Washington, DC. The docket number is RCRA-2003-0023. The 
EPA/DC is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, 
excluding legal holidays. Copies cost $0.15 per page. For information 
on

[[Page 59936]]

accessing an electronic copy of the treatability study and peer review 
documents, see the SUPPLEMENTARY INFORMATION section.

FOR FURTHER INFORMATION CONTACT: For general information, call the RCRA 
Call Center at 1-800-424-9346 or TDD 1-800-553-7672 (hearing impaired). 
Callers within the Washington Metropolitan Area must dial (703) 412-
9810 or TDD (703) 412-3323 (hearing impaired). The RCRA Call Center is 
open Monday-Friday, 9 a.m. to 5 p.m., Eastern Standard Time. For more 
information on specific aspects of this NODA, contact Ross Elliott at (703) 308-8748, elliott.ross@epa.gov, or write him at the Office of 
Solid Waste, Mail Code 5304W, U.S. EPA, 1200 Pennsylvania Avenue, NW., 
Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
    A. How Can I Get Copies of This Document and Other Related 
Information?
    B. How and To Whom Do I Submit Comments?
    C. How Should I Submit Confidential Business Information (CBI) 
to the Agency?
    D. What Should I Consider as I Prepare My Comments for EPA?
II. What Did VPRA Petition the EPA To Change?
III. What Is the Purpose of This NODA?
IV. What Is the VPRA Petition?
    A. Who Is VPRA?
    B. What Is VPRA Petitioning EPA To Do?
    C. What Is the Basis for the Petitioner's Amendment of the LDR 
Treatment Standards for K172?
    D. What Are the Analytical Data Results for K172 Presented in 
the Petition?
V. Reactivity and Ignitability Concerns With K171/172
    A. What Are Petitioner's Concerns With K171/172 Ignitability/
Reactivity?
    B. How Can Waste Generators and Treaters Determine Whether Their 
K171/172 is Ignitable or Reactive Hazardous Waste?
VI. What Can You Do To Respond to This NODA?
VII. What Are the Potential Outcomes Related to This NODA?

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

1. Docket
    EPA has established an official public docket for this action under 
Docket Number: RCRA-2003-0023. The official public docket consists of 
the documents specifically referenced in this action, any public 
comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
for which disclosure is restricted by statute. The official public 
docket is the collection of materials that are available for public 
viewing at the OSWER Docket in the EPA Docket Center, Room B102, EPA 
West, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket 
Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
OSWER Docket is (202) 566-0270. Copies cost $0.15/page.
2. Electronic Access
    You may access this Federal Register document electronically 
through the EPA Internet under the ``Federal Register'' listings at 
http://www.epa.gov/fedrgstr/, and you can make comments on this proposed rule at the federal e-rulemaking portal, http://

http://www.regulations.gov.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket or to access those documents in the public docket that 
are available electronically. Although not all docket materials may be 
available electronically, you may still access any of the publicly 
available docket materials through the EPA Docket Center facility 
identified above. Once in the system, select ``search,'' then key in 
the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Docket. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA's electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in Unit I.A.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
1. Electronically
    If you submit an electronic comment as prescribed below, EPA 
recommends that you include your name, mailing address, and an e-mail 
address or other contact information in the body of your comment. Also 
include this contact information on the outside of any disk or CD ROM 
you submit, and in any cover letter accompanying the disk or CD ROM. 
This ensures that you can be identified as the submitter of the comment 
and allows EPA to contact you in case EPA cannot read your comment due 
to technical difficulties or needs further information on the substance 
of your comment. EPA's policy is that EPA will not edit your comment, 
and any

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identifying or contact information provided in the body of a comment 
will be included as part of the comment that is placed in the official 
public docket, and made available in EPA's electronic public docket. If 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, EPA may not be able to consider your 
comment.
    EPA Dockets--Your use of EPA's electronic public docket to submit 
comments to EPA electronically is EPA's preferred method for receiving 
comments. Go directly to EPA Dockets at <http://www.epa.gov/edocket
, and follow the online instructions for submitting 
comments. To access EPA's electronic public docket from the EPA 
Internet Home Page, select ``Information Sources,'' ``Dockets,'' and 
``EPA Dockets.'' Once in the system, select ``search,'' and then key in 
Docket ID Number RCRA-2003-0023. The system is an ``anonymous access'' 
system, which means EPA will not know your identity, e-mail address, or 
other contact information unless you provide it in the body of your 
comment.
    E-mail--Comments may be sent by electronic mail (e-mail) to ``rcra-docket@epamail.epa.gov'', Attention Docket ID Number RCRA-2003-0023. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    Disk or CD ROM--You may submit comments on a disk or CD ROM that 
you mail to the mailing address identified in this section. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
2. By Mail
    Send your comments to: OSWER Docket, EPA Docket Center, Mailcode: 
5305T, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention Docket ID Number RCRA-2003-0023.
3. By Hand Delivery or Courier
    Deliver your comments to: Environmental Protection Agency, EPA 
Docket Center, Room B102, 1301 Constitution Avenue, NW., Washington, 
DC, Attention Docket ID Number RCRA-2003-0023. Such deliveries are only 
accepted during the Docket's normal hours of operation as identified 
above.
4. By Facsimile
    Fax your comments to: (202) 566-0272, Attention Docket ID Number 
RCRA-2003-0023.

C. How Should I Submit Confidential Business Information (CBI) to the 
Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. 
Send or deliver information identified as CBI only to the following 
address: RCRA CBI Document Control Officer, Office of Solid Waste 
(5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, 
Attention Docket ID No. RCRA-2003-0023. You may claim information that 
you submit to EPA as CBI by marking any part or all of that information 
as CBI (if you submit CBI on disk or CD ROM, mark the outside of the 
disk or CD ROM as CBI and then identify electronically within the disk 
or CD ROM the specific information that is CBI). Information so marked 
will not be disclosed except in accordance with procedures set forth in 
40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be included in the public docket and EPA's 
electronic public docket without prior notice. If you have any 
questions about CBI or the procedures for claiming CBI, please consult 
the person identified in the FOR FURTHER INFORMATION CONTACT section.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. What Did VPRA Petition the EPA To Change?

    Pursuant to 40 CFR 260.20, VPRA submitted a rulemaking petition to 
the EPA (a copy of which is included in the Docket to today's notice) 
which requests that the Agency amend the hazardous waste regulations as 
follows:
    1. Amend the LDR treatment standards for K171 and K172 spent 
catalysts by requiring prescriptive technology-based treatment 
standards, such as (1) recycling and metals recovery, or (2) oxidation 
and stabilization to address landfilling of catalyst with untreated 
PAHs and self-heating characteristics; and, if the process for 
requiring prescriptive LDRs is expected to take a considerable amount 
of time, amend the LDR treatment standards for K172 to add numerical 
(concentration-based) standards for PAHs to be consistent with the K171 
standards in the interim period; and
    2. Clarify that the hazardous oil-bearing secondary material 
exclusion (40 CFR 261.4(a)(12)(i)) does not apply to K171 and K172 
catalysts; or amend the F037 LDR treatment standards by adding 
vanadium, arsenic and antimony to be consistent with the K171 and K172 
standards.

III. What Is the Purpose of This NODA?

    Today's notice presents analytical data contained in VPRA's 
petition pertaining to six samples of spent hydrorefining catalyst 
(K172) collected and analyzed by VPRA from various refineries located 
in the U.S. The data represents the concentration of PAHs contained in 
the VPRA samples to show that PAHs do exist in K172. The original data 
collected and analyzed by EPA presented in the supporting documents to 
the 1998 Final Rule for Petroleum Refining Process Wastes (``Petroleum 
Refinery Rule'') (63 FR 42110, August 6, 1998) indicated that 
detectable levels of PAHs did not exist in K172.
    This notice also presents information provided by the petitioner 
regarding the decharacterization of K171 and K172 for ignitability/
reactivity potential prior to

[[Page 59938]]

landfill disposal, and solicits comments on this data as well as 
submission of other data relevant to this topic.

IV. What Is the VPRA Petition?

A. Who Is VPRA?

    The Vanadium Producers and Reclaimers Association (VPRA, formerly 
known as The Ferroalloys Association or TFA) represents the following 
five member companies: Bear Metallurgical Company, C.S. Metals of 
Louisiana, Gulf Chemical & Metallurgical Corporation, Shieldalloy 
Metallurgical Corporation and Strategic Minerals Corporation. VPRA 
initially submitted the rulemaking petition on August 1, 2001, but 
provided supplementary information on April 3, 2002, May 28, 2003, July 
10, 2003, and July 14, 2003.

B. What Is VPRA Petitioning EPA To Do?

    VPRA is petitioning EPA to amend several alleged deficiencies in 
the LDR treatment standards for K172 and F037 as established in the 
Petroleum Refinery Rule. The petition states that the correction of 
these deficiencies will prevent the mismanagement of spent catalyst and 
will result in increased recycling to recover metal resources. The 
petition maintains that the combination of the lack of LDR treatment 
standards for PAHs in K172 and the lack of effective guidance for 
identifying and treating waste that exhibits the ignitability or 
reactivity characteristics has caused increased landfilling of spent 
catalyst since the Petroleum Refinery Rule was promulgated in August 
1998.

C. What Is the Basis for the Petitioner's Amendment of the LDR 
Treatment Standards for K172?

    The basis for the petitioner's request for amending the LDR 
treatment standards for K172 is that PAHs are not included in list of 
constituents requiring treatment prior to disposal. In addition to 
several organic and inorganic constituents included in the K172 LDR 
treatment standards (see 63 FR 42187), a prescriptive standard of 
deactivation was established for reactive sulfides. The petitioner 
asserts that PAHs were not included in the K172 LDR treatment standards 
because the original samples collected by EPA were not properly 
characterized as spent hydrorefining catalyst (which is now listed as 
K172). The data presented in VPRA's petition for K172 spent catalysts 
are new data collected and analyzed after the K172 wastes were listed. 
The petitioner argues that these data demonstrate that PAHs are present 
in the majority of the K172 samples above the LDR treatment standards. 
The samples were classified by the petitioner based on the guidance 
provided by EPA in the original rule and in the Dual Purpose Reactor 
Notice. (See May 8, 2002 Federal Register; 67 FR 30811.) The petitioner 
also relied on interviews with industry personnel familiar with the 
processes from which the samples originated and on general refining 
industry knowledge.
    The petitioner also raised concern with the adequate treatment of 
the reactivity and self-heating properties of both K171 and K172 spent 
catalysts. This issue is discussed in more detail below.

D. What Are the Analytical Data Results for K172 Presented in the 
Petition?

    The analytical data for K172 submitted by the petitioner are 
located in Table 1 below and in Exhibit B of the original petition, 
entitled Determination of Treatment Methods used by the Hazardous Waste 
Industry for Spent Hydroprocessing Catalyst K171/K172, Scherger 
Associates, May 2001 (hereinafter the ``Scherger Report'') and in the 
Supplement to Petition for Rulemaking, April 3, 2002. The original and 
supplemental petitions are included in the docket for today's notice.

                                                             Table 1.--VPRA Analytical Data Results for K172 (PAH Results in mg/kg)
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                                                                                                                     Sample ID
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                                                    C 1, 2      D 1, 2      E \3\     M \4\     N \5\    W1 \6\    W2 \6\    W3 \6\    W4 \6\    W5 \6\    W6 \6\    W7 \6\    W8 \6\   Ex.A \7\
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Benz(a)anthracene................................       <33        <32.8     <0.33     <50.0      <1.3     <3.27     <3.25     <3.28     <3.26     <3.30     <3.31     <3.29     <3.32       <26
Chrysene.........................................       <33        <32.8     <0.33     <50.0       3.0     <3.27     <3.25     <3.28     <3.26     <3.30     <3.31     <3.29     <3.32      13 J
Napthalene.......................................       <33        <32.8     0.485      50 J       7.4     <3.27     <3.25     <3.28     <3.26     <3.30     <3.31     <3.29     <3.32       <26
Phenanthrene.....................................       <33        <32.8     <0.33      50 J      41.0     <3.27     <3.25      6.56     <3.26      5.58      5.62     <3.29     <3.32       150
Pyrene...........................................       <33        <32.8     <0.33      50 J      17.0     <3.27     <3.25     <3.28     <3.26     <3.30     <3.31     <3.29     <3.32        38
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Bold indicates that the maximum concentration in any one sample meets or exceeds Universal Treatment Standards (UTS--see 40 CFR 268.48). Notes below reproduced from petition.
\1\ The sample extract could not be concentrated to the normal final volume. This results in elevated practical reporting limit.
\2\ Sample was diluted due to high concentrations of non-target compounds.
\3\ Internal standard and surrogate failure attributed to matrix interference based on review of chromatogram.
\4\ Sample diluted 150 to 1 due to matrix and presence of many compounds; J means detected between the MDL (Method Detection Limit) (0.33 mg/kg) and the PQL (Practical Quantitation Limit)
  (50.0 mg/kg).
\5\ Sample diluted 4:1 and 20:1 due to the presence of numerous target compounds including acenaphthene, fluoranthene, fluorene in addition to LDR PAH compounds.
\6\ These sample extracts could not be concentrated to the normal final volume. This results in elevated practical reporting limit.
\7\ Sample from ``Exhibit A'' of Supplemental Petition dated April 3, 2002. (J = estimated value between the MDL and the PQL.)

V. Reactivity and Ignitability Concerns With K171 and K172

A. What Are the Petitioner's Concerns With K171 and K172 Ignitability/
Reactivity?

    VPRA asserts that K171 and K172 are not being adequately 
decharacterized with regard to the ignitability and reactivity 
hazardous characteristics (40 CFR 261.21(a)(2) and 261.23(a)(5), 
respectively), but are nonetheless being landfilled. In the Petroleum 
Refinery Rule, EPA identified the self-heating properties of this 
catalyst, and the potential formation of hydrogen sulfide gas from 
metal sulfides formed in the catalyst during use, as posing 
ignitability concerns (D001) and reactivity concerns (D003). The 
petitioner asserts that the existing regulations for identifying and 
treating (i.e., permanently decharacterizing) characteristic hazardous 
wastes have proved ineffective in ensuring adequate treatment before 
disposal, because there is currently no EPA sanctioned test method and 
regulatory value for identifying ignitable solids or reactive 
wastes.\1\
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    \1\ 40 CFR 261.21(a)(2) and 261.23(a)(5) define ignitable waste 
solids, and reactive cyanide or sulfide wastes, using narrative 
standards--that is, there are no established tests, with 
corresponding regulatory trigger values, for identifying these 
wastes. Identification of these wastes is done by applying the 
narrative criteria to the waste.
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    Although the Petroleum Refinery Rule established prescriptive LDR 
treatment standards for K171 and K172 (deactivation for reactive 
sulfides), the petitioner argues that the lack of test methods or 
guidance is making waste classification determinations by spent 
catalyst generators difficult, and is resulting in the land placement 
of K171 and K172 spent catalysts without proper treatment.
    EPA cited ignitability as part of the basis for listing K171 and 
K172 (40 CFR 261.32), but did not specifically identify the need to 
treat K171/172 for this

[[Page 59939]]

hazardous characteristic. This is because the Agency believed that high 
temperature thermal treatment would be used to treat for the organic 
chemicals found in this waste, and that this treatment would also 
appropriately treat for the ignitability characteristic of the waste 
(by oxidizing the metal sulfides in the waste; November 20, 1995 
Federal Register, 60 FR at 57785). However, the petitioner asserts that 
lower temperature thermal desorption, which does not oxidize the metal 
sulfides, is the primary mode of organics treatment for K171, and that 
K172 receives no thermal treatment before landfilling (only 
solidification/stabilization for metals), because the LDR does not 
include a requirement to treat for PAHs. Thus, VPRA argues that this 
results in significant volumes of spent catalyst being land disposed 
without adequate treatment for ignitability.
    VPRA also asserts that changes in industry waste coding practices 
for these wastes contribute to inadequate identification and 
decharacterization before disposal. These spent catalysts are currently 
identified (by the generator) only by their K waste codes, according to 
the petitioner, and are no longer identified as D001 or D003, as was 
the previous practice (9 percent of these spent catalysts were being 
classified as D001 before rule promulgation).\2\ VPRA believes that by 
using only the K codes for waste identification, waste generators are 
facilitating disposal of spent catalyst without adequate treatment for 
reactive sulfides (D003) that may be present (as required by the LDR 
treatment standards for these wastes), or ignitability (D001). (The 
Agency notes, however, that a review of EPA's 1999 Biennial Reporting 
System database indicates eighteen refineries reported generating a 
total of 6,800 tons (20 percent of the total) of hazardous waste coded 
as D001/D003 in 1999, in addition to the codes reported in the table as 
K171 or K172.)
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    \2\ In the 1995 Notice of Proposed Rulemaking for Petroleum 
Refining Process Wastes, EPA documented the petroleum refining 
industry's responses to the RCRA 3007 survey indicating that 
hydrotreating and hydrorefining spent catalyst wastes exhibit D001 
(ignitability), D003 (reactivity), and other hazardous constituent 
characteristics (primarily D004-arsenic and D018-benzene). See 60 FR 
at 57785. The survey data showed approximately 9 percent of 
hydrotreating and hydrorefining residuals as ignitable [513 metric 
tons (mt) of 5,640 mt total hydrotreating residuals; 1,671 mt of 
18,634 mt total hydrorefining residuals]. See Listing Background 
Document for the 1992-1996 Petroleum Refining Listing Determination, 
October 31, 1995, pages 75 and 88. EPA found that: ``These wastes 
are routinely managed in thermal processes that destroy organics and 
thus, leave behind residues free of the ignitable characteristic and 
other corrosive causing constituents.'' 60 FR at 57785.
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    The petitioner also asserts via the Scherger Report (p. 7) that 
spent catalyst receives special handling at petroleum refineries. 
Specifically, petroleum refineries are reported to routinely have 
special safety programs for handling spent catalyst and for addressing 
potential fires or hydrogen sulfide generation, ship spent catalyst in 
special bins to reduce air contact, and frequently designate spent 
catalyst under DOT (Department of Transportation) pyrophoric or self-
heating designations for hazardous materials. The Scherger Report 
asserts that landfills treat spent catalyst (by solidification/
stabilization treatment) and landfill it soon after its arrival, and if 
it must be stored before treatment, store it in bins to reduce its air 
exposure or wet it with water (p. 14). The petitioner asserts that this 
special handling of the spent catalyst, and DOT designation as 
pyrophoric, support a conclusion that the spent catalyst is an 
ignitable hazardous waste being landfilled without proper deactivation 
treatment.

B. How Can Waste Generators and Treaters Determine Whether Their K171/
172 Is Ignitable or Reactive Hazardous Waste?

    As discussed in both the proposed and final Petroleum Refinery 
Rules, a significant finding of the Agency in listing K171/172 was the 
self-heating potential of these spent catalysts, which would make them 
ignitable hazardous waste, and their potential to react and emit 
hydrogen sulfide, which would make them reactive hazardous wastes. 60 
FR at 57767; 63 FR at 42154 and 42157. The petitioner has asserted that 
generators and treaters are having difficulty properly characterizing 
spent catalyst because EPA has not established a test(s) with numerical 
criteria for determining whether a waste is ignitable and/or reactive 
hazardous waste.
    The Agency believes that the K171/172 Petroleum Refinery Rule, as 
well as the original 1980 Federal Register discussion promulgating the 
hazardous characteristics regulations, provide considerable guidance to 
generators and others for applying the narrative regulatory criteria to 
this waste in the absence of specific tests. Testing was also an issue 
in 1980, and the Agency provided generators with the following guidance 
for identifying reactive hazardous waste:

    ``The unavailability of suitable test methods for measuring 
reactivity should not cause problems. Most generators of reactive 
wastes are aware that their wastes possess this property and require 
special handling. This is because such wastes are dangerous to the 
generators' own operations, and are rarely generated from unreactive 
feedstocks.'' (May 19, 1980 Federal Register; 45 FR at 33110).''

While this passage specifically refers to the reactivity 
characteristic, the Agency believes its logic is equally applicable to 
classifying non-liquid wastes which may be ignitable under 40 CFR 
261.21(a)(2), as discussed in the Background Document for the 
Characteristic of Ignitability (May 2, 1980, p. 42).
    In the preamble to the Petroleum Refinery Rule, the Agency 
documented and described the potential hazards of spent catalyst, as 
well as several types of special handling precautions for managing 
spent catalyst. EPA staff studying these wastes observed that some 
spent catalyst is removed from process units and is immediately placed 
in air-tight containers (sometimes under an inert gas atmosphere) to 
prevent self-heating. In collecting catalyst samples to support waste 
characterization for the listing determination, EPA samplers were twice 
denied access to inert gas catalyst storage bins, in favor of specially 
trained refinery sampling personnel, who collected samples under EPA 
observation. 60 FR at 57767. Spent catalyst being staged for recycling 
has also been found to be smoking, and occasional fires have been 
reported. 63 FR at 42154.
    The Agency also clarified the role of testing and other information 
in applying the narrative hazardous characteristic criteria to waste in 
the absence of a specific test, in a 1997 letter from David Bussard, 
Director, Hazardous Waste Identification Division to Paul Wallach, Hale 
and Dorr, LLP, dated August 14, 1997. The letter said, in part:

    With regard to the hazardous waste determination, it is the 
generator's obligation to make a determination. For the hazardous 
characteristics, this determination is made by evaluating the waste 
using a required test or by comparing the properties of the waste 
with the narrative standards. The narrative standard is what is 
enforced if there is no applicable test that is required by the 
regulations. For the characteristics of ignitability of solids and 
reactivity, there is no test method specified as to the operational 
definition of the characteristic, and we have therefore given 
reasonable deference to the operational experience of the waste 
generator or facility. However, we agree with the Region that this 
is not a blanket shield from consideration of information or test 
data in the case where there is reason to question the generator's 
RCRA determination. In fact, in this case, we believe the Region has 
a reasonable position in that the manufacturers of the catalyst 
routinely inform users of the

[[Page 59940]]

potential hazards of the catalyst, that they often advise users to 
treat the spent catalyst to remove the potential hazard, and that 
Pfizer's own material safety data sheet (MSDS) indicated that Pfizer 
considered the material to pose a potential hazard. Given these 
circumstances, I believe it is totally appropriate for the Region to 
obtain and consider test information that illustrates the properties 
of the waste along with other information in determining whether or 
not this material meets one or more of the narrative standards of 
the hazardous characteristics.

    Much of the information discussed in the preamble to the Petroleum 
Refinery Rule can be used by waste generators and others to classify 
spent catalyst appropriately. The Agency also believes that some of the 
types of information suggested as useful by the Scherger Report are in 
fact relevant and appropriate to use in this regard. Specifically, the 
following types of information are relevant and appropriate to use in 
understanding the properties of spent catalyst for applying the 
narrative hazardous characteristics definitions at 40 CFR 261.21 and 
261.23 to this waste:

--Landfill or other fires attributable to spent catalyst disposal
--Observation of spent catalyst emitting smoke during any phase of 
waste management
--Transport of spent catalyst with a DOT designation as a pyrophoric or 
self-heating material, or packaged as required by DOT for materials 
with this designation
--Failing the DOT test for self-heating material (49 CFR 173.125)
--Information from catalyst new-product MSDS (Material Safety Data 
Sheet)
--Storage of spent catalyst in special containers or under inert gas 
such as nitrogen
--Any other management practice intended to, or with no reasonable 
purpose other than to, limit exposure of waste spent catalyst to the 
air, such as coating with oil or wetting with water.

    Only the first of these waste properties listed above, landfill or 
other fires attributable to spent catalyst disposal, would be 
sufficient by itself for definitive classification of spent catalyst as 
an ignitable hazardous waste under 40 CFR 261.21(a)(2). Prevention of 
landfill fires was one of the underlying reasons for developing an 
ignitability hazardous characteristic for waste (see Background 
Document for the Characteristic of Ignitability, May 2, 1980, p. 3). 
Waste generators and others should use the other types of information 
collectively to make an appropriate determination regarding the 
ignitable/reactive properties of spent catalysts. Testing data alone 
are not sufficient to determine waste status (because the Agency has 
established no such tests to date \3\), but the DOT test may be useful 
in understanding the properties of the waste. The special handling 
described in this list is relevant because the Agency assumes that 
waste generators and transporters would not incur the extra cost of 
special shipping containers or handling and shipping under inert gas 
absent the need for these measures to ensure the safety of those 
workers handling the materials. Given what the Agency knows about the 
potential hazardous properties of spent catalysts, the Agency presumes 
that any particular spent catalyst managed under these special 
conditions would very likely pose significant hazards were it managed 
as non-ignitable waste. RCRA requires the Agency to regulate as 
hazardous those wastes which may pose a substantial hazard to human 
health or the environment when improperly managed. The special 
management of spent catalyst clearly leads to the conclusion that 
``normal'' management of the waste, e.g., in contact with ambient air, 
poses hazards that RCRA was intended to control by designation of the 
waste as hazardous.
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    \3\ The Agency is currently in the process of deleting from SW-
846 the 1985 guidance for evaluating waste for sulfide/cyanide 
reactivity, which was withdrawn from use in 1998.
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    Disposal of waste spent catalyst that is D001 or D003 hazardous (as 
determined using the types of information described in the previous 
paragraphs), which is not decharacterized before disposal, would 
violate RCRA and its regulations. This may be of particular concern for 
spent catalyst being sent to a landfill not permitted to manage D001 or 
D003 wastes.
    The Agency solicits from the public any comment on the supporting 
documentation provided by the petitioner regarding ongoing 
mismanagement of spent catalyst waste. The Agency also solicits any 
additional documentary information (as described above) relevant to the 
potential mismanagement of ignitable spent catalyst that has occurred 
subsequent to the effective date of the listing determination (February 
8, 1999).

What Can You Do To Respond to This NODA?

    EPA is seeking comment on the data presented in the VPRA petition 
regarding PAH concentrations contained in the K172 samples. In 
particular, we are interested in whether there are other data available 
on typical concentrations of PAHs in K172 (spent hydrorefining 
catalysts). In order for any data you submit to be considered by us in 
making a determination, the data should be collected, transported, and 
analyzed under the proper quality assurance and quality control 
protocols as described at http://www.epa.gov/quality/. In addition, 
process information such as a simplified process diagram and the type 
of feed for the hydroprocessing reactor from which the sample was 
collected should be provided to verify the sample represents a K172 
spent catalyst. We are also seeking comment on the guidance provided in 
this notice to aid in the identification of D001 ignitable solids.

What Are the Potential Outcomes of This NODA?

    The potential outcomes based on the comments and/or data received 
under this NODA include a proposed rulemaking to revise the numerical 
LDR treatment standards for K172, and/or to revise technology-based 
standards for the self-heating properties of K171 and K172. Also, a 
potential outcome of this NODA is additional clarification for 
identifying D001 ignitable solids.

    Dated: September 30, 2003.
Matt Hale,
Acting Director, Office of Solid Waste.
[FR Doc. 03-26411 Filed 10-17-03; 8:45 am]

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