[Federal Register Volume 66, Number 129 (Thursday, July 5, 2001)]
[Rules and Regulations]
[Pages 35379-35384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16685]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[SWH-FRL-6999-7]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste: Spent Catalysts from Dual-Purpose Petroleum 
Hydroprocessing Reactors

AGENCY: Environmental Protection Agency.

ACTION: Notice of opportunity for public comment on memoranda 
clarifying the scope of petroleum hazardous waste listings.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) today is providing 
the public an opportunity to comment on Agency memoranda that explain 
how current RCRA regulations apply to spent catalyst wastes removed 
from dual purpose hydroprocessing reactors and generated at petroleum 
refining facilities. The regulations addressed in these memoranda were 
promulgated under the Resource Conservation and Recovery Act (RCRA) on 
August 6, 1998 (63 FR 42110) and among other things, listed spent 
hydrotreating catalysts (K171) and spent hydrorefining catalysts (K172) 
as hazardous wastes. Subsequent to that final rule and in response to 
inquiries from handlers of certain spent petroleum hydroprocessing 
catalysts, EPA issued two memoranda explaining that spent catalysts 
from dual purpose petroleum hydroprocessing reactors fall within the 
scope of the final listing determinations for K171 and K172. Today the 
Agency is notifying the public of the opportunity to comment on these 
previously issued memoranda.

DATES: EPA will accept public comments until September 4, 2001. 
Comments postmarked after this date will be marked ``late'' and may not 
be considered.

ADDRESSES: If you wish to comment on the memoranda discussed below, you 
must send an original and two copies of your comments referencing 
docket number F-2001-PR2P-FFFFF to: RCRA Docket Information Center, 
Office of Solid Waste (5305G), U.S. Environmental Protection Agency 
Ariel Rios, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Hand 
deliveries of comments should be made to the Arlington, VA address 
listed in the SUPPLEMENTARY INFORMATION. You also may submit comments 
electronically by sending electronic mail through the Internet to: 
[email protected]. See the beginning of SUPPLEMENTARY 
INFORMATION for instructions on electronic submissions.
    You should not submit electronically any confidential business 
information (CBI). You must submit an original and two copies of CBI 
under separate cover to: RCRA CBI Document Control Officer, Office of 
Solid Waste (5305W), U.S. EPA Ariel Rios, 1200 Pennsylvania Avenue NW., 
Washington, DC 20460.

FOR FURTHER INFORMATION: For general information, contact the RCRA 
Hotline at (800) 424-9346 or TDD (800) 553-7672 (hearing impaired). In 
the Washington, DC, metropolitan area, call (703) 412-3323. For 
information on specific aspects of the information contained in the 
memoranda discussed below, contact Patricia Overmeyer of the Office of 
Solid Waste (5304W), U.S. Environmental Protection Agency Ariel Rios, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460. (E-mail address 
and telephone number: [email protected], (703) 605-0708.)

SUPPLEMENTARY INFORMATION: You should identify comments in electronic 
format with the docket number F-2001-PR2P-FFFFF. You must submit all 
electronic comments as an ASCII (text) format or a word processing 
format that can be converted to ASCII (text). It is essential to 
specify on the disk label the word processing software and version/
edition as well as the commenter's name. This will allow EPA to convert 
the comments into one of the word processing formats used by the 
Agency. Please use mailing envelopes designed to physically protect the 
submitted diskettes. EPA emphasizes that submission of comments on 
diskettes is not mandatory, nor will it result in any advantage or 
disadvantage to any commenter. Some of the supporting documents in the 
docket also are available in electronic format on the Internet at URL: 
http://www.epa.gov/epaoswer/hazwaste/id/petroleum/catalyst.htm
    EPA will keep the official record for this action in paper form. 
Accordingly, we will transfer all comments received electronically into 
paper form and place

[[Page 35380]]

them in the official record, which also will include all comments 
submitted directly in writing. The official administrative file is the 
paper file maintained at the RCRA Docket, the address of which is in 
ADDRESSES at the beginning of this document.
    EPA's responses to public comments, whether the comments are 
received in written or electronic format, will be published in the 
Federal Register or in a response to comments document placed in the 
public docket. We will not reply immediately to commenters 
electronically other than to seek clarification of electronic comments 
that may be garbled in transmission or during conversion to paper form, 
as discussed above.
    You may view public comments and the supporting materials for the 
issues and memoranda discussed below in the RCRA Information Center 
(RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis 
Highway, Arlington, VA. The RIC is open from 9 a.m. to 4 p.m., Monday 
through Friday, excluding federal holidays. To review file materials, 
we recommend that you make an appointment by calling (703) 603-9230. 
You may copy a maximum of 100 pages from any file maintained at the 
RCRA Docket at no charge. Additional copies cost $0.15/per page.

Customer Service

How Can I Influence EPA's Thinking on the Memoranda?

    We invite you to provide your comments on the memoranda that are 
described below and included in the appendices. Your views on the 
issues discussed in these documents, your ideas on new approaches we 
have not considered, any new and/or relevant data you may have, your 
views on how these memoranda may affect you, and other relevant 
information are requested. Your comments must be submitted by the 
deadline shown in the section titled DATES above. Your comments will be 
most effective if you follow the suggestions below:
     Explain your views as clearly as possible and provide a 
summary of the reasoning you used to arrive at your conclusions. 
Provide examples to illustrate your views wherever possible.
     If you estimate potential costs, explain how you arrived 
at your estimate.
     Tell us which aspects of the memoranda you support, as 
well as which parts with which you disagree.
     Offer specific alternatives.
     Clearly label any CBI submitted as part of your comments 
(send all CBI information according to the special procedures listed 
above under ADDRESSES.) Please also provide non-CBI summaries of any 
CBI information, if possible.
     Include your name, date, and the EPA docket number (F-
2001-PR2P-FFFFF) with your comments.

I. Background

A. What Is the Reason for Today's Publication?

    On August 6, 1998, EPA listed as hazardous wastes spent 
hydrotreating catalysts (K171) and spent hydrorefining catalysts (K172) 
generated in petroleum refining operations (63 FR 42110). These 
regulations were promulgated under RCRA, 42 U.S.C. 6901, et seq. EPA 
took no action with regard to a third type of spent hydroprocessing 
catalyst generated by petroleum refineries, hydrocracking catalysts.
    Subsequent to the promulgation of the hazardous waste listing 
determination, a number of industry and environmental groups filed 
lawsuits challenging the validity of the listings. These cases were 
consolidated in the United States Court of Appeals for the District of 
Columbia Circuit (D.C. Circuit) in American Petroleum Institute v. EPA, 
Docket No. 94-1683.
    Among the petitioners was Gulf Chemical and Metallurgical 
Corporation. Gulf asserted that the final rulemaking did not provide 
adequate definitions of the spent catalysts covered within the scope of 
the hazardous waste listing descriptions for K171 and K172. In 
particular, Gulf stated that the scope of the final listing 
descriptions did not adequately address the regulatory status of spent 
catalysts from petroleum hydroprocessing reactors that perform both 
hydrotreating and hydrocracking functions (i.e., spent catalysts from 
dual purpose reactors). Gulf pointed out that such dual purpose 
reactors perform functions meeting both the definitions of 
``hydrotreating'' and ``hydrocracking'' provided in DOE's Petroleum 
Supply Annual (PSA) and presented in the preamble to the August 6, 1998 
final petroleum refining listing determination.
    After reviewing the issues raised by Gulf in its petition, we 
concluded that the Agency had no dispute with the petitioner with 
regard to the regulatory status of spent catalysts removed from dual 
purpose reactors. In fact, we saw no grounds for Gulf's challenge to 
the August 1998 rulemaking given that our interpretation of the final 
listing descriptions for K171 and K172 is that spent catalysts from 
petroleum hydroprocessing units that perform hydrorefining and 
hydrotreatment functions are captured by the listing.
    Gulf's challenge did, however, serve to highlight the potential for 
confusion regarding the regulatory status of spent catalysts removed 
from dual purpose reactors. Although a straight reading of the 
regulatory language promulgated in the final rule should result in a 
conclusion that spent catalysts from units or reactors that perform 
hydrotreatment or hydrorefining functions are listed hazardous wastes, 
EPA's Office of Solid Waste decided to distribute to the Agency's 
Senior RCRA Policy Advisors a memorandum explaining the regulatory 
status of spent catalysts from dual purpose petroleum hydroprocessing 
operations. The memorandum was issued on November 29, 1999, and was 
distributed to industry trade associations and posted on EPA's ``RCRA 
On-line'' website (http://www.epa.gov/rcraonline). The text of the 
memorandum is included as an appendix to this publication and a copy of 
the original memorandum is contained in the docket. After the 
memorandum was issued, Gulf dismissed its lawsuit on the hazardous 
waste listings (K171 and K172).
    The views expressed in the November 29, 1999 memorandum are based 
upon the fact that spent catalysts removed from dual purpose reactors 
facilitate hydrotreatment or hydrorefining of petroleum feedstock. Dual 
purpose reactors are hydroprocessing reactors that perform 
hydrotreatment or hydrorefining functions while simultaneously 
hydrocracking petroleum feedstock. We further explained in the 
memorandum that the fact that such reactors hydrocrack petroleum 
feedstocks does not exclude the spent catalysts from the hazardous 
waste listing. It was never the Agency's intent to exclude a spent 
catalyst from the listings for K171 and K172 on the basis that a spent 
catalyst may be removed from a unit or reactor that hydrocracks, if 
that unit or reactor also hydrotreats or hydrorefines the petroleum 
stream.
    In February 2000, API filed a lawsuit in the D.C. Circuit 
challenging the validity of the November 29, 1999 memorandum. API v. 
EPA, Docket No. 00-1069. API, however, agreed to hold this lawsuit in 
abeyance until the court decided the challenge to the original 
hazardous waste listing determinations.
    While awaiting the opinion of the court in the first API lawsuit, 
and while the second suit was being held in abeyance, EPA received 
further inquiries on the regulatory coverage of spent catalysts from 
dual purpose hydroprocessing reactors. In response to

[[Page 35381]]

these additional inquiries, EPA distributed a second memorandum on June 
1, 2000 further clarifying the scope of the K171 and K172 hazardous 
waste listings with regard to spent catalysts removed from dual purpose 
reactors. EPA also responded to two letters from individual petroleum 
refineries that requested information on the regulatory status of spent 
catalysts from two specific types of hydroprocessing reactors.
    On June 27, 2000, the D.C. Circuit issued an opinion in the first 
lawsuit that upheld EPA's hazardous waste listing determinations. API 
v. EPA, 216 F.3d 50. API, thereupon, reactivated its lawsuit on the 
November 29, 1999 memorandum.
    In June 2001, API and EPA entered into an agreement settling the 
second lawsuit. Under the terms of the settlement agreement EPA has 
agreed to publish this announcement offering the opportunity for public 
comment. EPA will evaluate and respond to the public comments and 
publish a response in the Federal Register announcing EPA's decision 
whether to maintain, and possibly clarify, the positions expressed in 
the memoranda or to change them.

B. What Are Dual Purpose Reactors?

    Petroleum refineries use hydroprocessing units to prepare residual 
stream feedstocks for cracking and coking units and to polish final 
products (e.g., diesel fuels). Hydroprocessing reduces the boiling 
range of petroleum feedstock and removes substantial amounts of 
impurities from the feed.\1\ During hydroprocessing, molecules are 
split or saturated in the presence of hydrogen. Hydroprocessing is a 
broad term encompassing the more specific processes of hydrotreating, 
hydrorefining, and hydrocracking. Hydroprocessing reactors that 
hydrotreat petroleum feedstock stabilize the feed and remove impurities 
catalytically and react the feed with hydrogen. Hydrotreating includes 
the removal of sulfur, nitrogen, metals and other impurities from 
petroleum feedstocks. Spent catalysts removed from hydrotreating 
reactors are listed hazardous wastes (K171). Hydrorefining also removes 
impurities, but uses more severe operating conditions than 
hydrotreating, and treats heavier molecular weight petroleum fractions 
(e.g., residual fuel oil and heavy gas oil). Spent catalysts removed 
from hydrorefining reactors also are listed hazardous wastes (K172). 
Hydrocracking is a process in which the primary purpose is to reduce 
the boiling range of petroleum feedstocks. EPA has not made a hazardous 
waste listing determination with regard to the status of spent 
catalysts removed from petroleum hydrocracking reactors.
---------------------------------------------------------------------------

    \1\ Gary, James H. and Handwerk, Glenn E., ``Petroleum Refining 
Technology and Economics,'' Third Edition, Marcel Dekker, Inc., New 
York, 1994, p. 174.
---------------------------------------------------------------------------

    Dual purpose hydroprocessing reactors process petroleum feedstocks 
by both hydrotreating (or hydrorefining) the feedstock (i.e., removing 
sulfur, nitrogen, metals, and/or other impurities) and hydrocracking 
the feedstock (i.e., reducing boiling points). Given that the catalysts 
in dual purpose reactors are used to promote a hydrotreating or 
hydrorefining function, as well as a hydrocracking function, such 
catalysts when spent, are listed hazardous wastes under the plain 
language of the regulation.
    The Agency knows of three specific types of dual purpose 
hydroprocessing reactors currently in use at petroleum refineries. All 
are expanded- or ebullating-bed processes. These are the H-Oil, the LC-
Fining, and the T-Star reactors. These reactors are designed to process 
heavy feeds and use catalysts to perform hydrotreating (i.e., metals 
removal, desulfurization) and hydrocracking functions. Ebulatted bed 
hydroprocessing is a process that takes place in a reactor bed that is 
not fixed. In such a process, hydrocarbon feed streams enter the bottom 
of the reactor and flow upwards passing through the catalyst which is 
kept in suspension by the pressure of the fluid feed.
    LC-Fining and H-Oil both use similar technologies but offer 
different mechanical designs. The purpose of an ebullating bed reactor 
is to convert the most problematic feeds, such as atmospheric residuum, 
vacuum residues, and heavy oils having a high content of asphaltenes, 
metals, sulfur, and sediments, to lighter, more valuable products while 
simultaneously removing contaminants. The function of the catalyst is 
to remove contaminants such as sulfur and nitrogen heteroatoms, which 
accelerate the deactivation of the catalyst, while cracking 
(converting) the feed to lighter products.
    The H-Oil reactor is used to process residue and heavy oils to 
produce upgraded petroleum products such as LPG, gasoline, middle 
distillates, gas oil, and desulfurized fuel oil. Stable operation is 
achieved through a high operating pressure which ensures a sufficient 
reactor outlet hydrogen partial pressure. The H-Oil process can achieve 
conversion rates of 45 to 90 percent, desulfurization of 55 to 92 
percent, and demetallization of 65 to 90 percent.\2\
---------------------------------------------------------------------------

    \2\ See ``Background Document Clarifying the Scope of Petroleum 
Hazardous Waste Listings: Supplemental Information Regarding 
Petroleum Hydroprocessing Units.''
---------------------------------------------------------------------------

    The LC-Fining process serves the purposes of desulfurization, 
demetallization, Conradson Carbon Residue (CCR) reduction,\3\ and 
hydrocracking of atmospheric and vacuum residuum. The LC-Fining process 
can be used to yield a full range of high quality distillates including 
residuals that may be used as fuel oil, synthetic crude or feedstock 
for a residuum FCC, coker, visbreaker or solvent deasphalter. The LC-
Fining process can achieve conversion rates of 40 to 97 percent, 
desulfurization of 60 to 90 percent, and a demetallization rate of 50 
to 98 percent.
---------------------------------------------------------------------------

    \3\ Carbon residue is roughly related to the asphalt content of 
crude and to the quantity of lubricating oil fraction that can be 
recovered from it. It often is expressed in terms of weight percent 
carbon residue by the Conradson ASTM test procedure.
---------------------------------------------------------------------------

    The T-Star Process also is an ebullated bed hydrotreating/
hydrocracking process designed to process very difficult feedstocks 
(e.g., atmospheric residuum, vacuum residues, and heavy oils with high 
levels of sulfur and/or metals). T-Star units can maintain conversion 
rates in the range of 20 to 60 percent and hydrodesulfurization rates 
in the range of 93 to 99 percent.\4\ Additional information on each of 
the dual-purpose technologies is provided in ``Background Document 
Clarifying the Scope of Petroleum Hazardous Waste Listings: 
Supplemental Information Regarding Petroleum Hydroprocessing Units'' 
which can be found in the docket.
---------------------------------------------------------------------------

    \4\ Hydrocarbon Processing. ``Refining Processes 2000.'' Process 
descriptions of hydroprocessing units. November 2000.
---------------------------------------------------------------------------

II. Summary of the Agency's Views on Dual Purpose Catalysts

    EPA believes that spent catalysts removed from dual purpose 
reactors (i.e., those hydroprocessing reactors that perform both 
hydrotreating, or hydrorefining, and hydrocracking functions) are 
listed hazardous wastes. In the November 29, 1999 memorandum, the 
Agency clarified that these spent catalysts meet the listing 
descriptions for K171 and/or K172. Such materials include spent 
catalysts removed from expanded- or ebullated-bed reactors (e.g., H-
Oil, T-Star, and LC-fining processes).
    As explained in the preamble to the August 6, 1998 final rule, 
definitions for petroleum hydrotreating, hydrorefining, and 
hydrocracking operations are not

[[Page 35382]]

universally established. After considering all relevant materials in 
the rulemaking record, EPA decided that the simplest way to 
differentiate between hydrocracking and hydrotreating or hydrorefining 
is to rely on definitions provided in the Department of Energy's (DOE) 
Petroleum Supply Annual (PSA). The PSA contains operational definitions 
of hydrotreating and hydrocracking for purposes of submitting form EIA-
820 to DOE. In the August 1998 final rule, EPA rejected reliance on 
other methods of differentiation, such as specific percentages of the 
feed that are converted, or reduced in molecular size, for each of the 
operations. EPA rejected the option of relying on specific conversion 
rates to differentiate between hydrocracking reactors and other 
hydroprocessing reactors. Our reasons for rejecting the use of 
conversion rates included the fact that the ability to vary the 
operating conditions for some reactors, or changes to the manner in 
which feedstock conversion is calculated or accounted for, may allow 
refineries to re-classify particular reactors without significantly 
altering the amount of hydrotreatment or hydrorefining conducted in the 
reactor.
    In addition, the Agency, in the November 1999 memorandum, clarified 
that the listing should not be interpreted as providing that spent 
catalysts from any hydrocracking process--regardless of whether or not 
hydrotreatment also occurs--are, by definition, outside the scope of 
the K171 and K172 listings (i.e., if a spent catalyst otherwise meets 
the K171 or K172 listings because it comes from a unit that performs a 
hydrotreating function, the fact that the spent catalyst is removed 
from a unit that also hydrocracks does not exclude the spent catalyst 
from the hazardous waste listing). In the August 1998 final rule, we 
did not define hydrocracking and then provide that hydrotreating and 
hydrorefining are ``not hydrocracking.'' The final listing 
determinations were meant to include spent catalysts removed from 
reactors that perform hydrotreating and hydrorefining functions, even 
if the reactors also perform a hydrocracking function. This is 
consistent with EPA's decision in the final rulemaking to rely on the 
PSA definitions in determining the function or functions performed by a 
reactor. The PSA definitions of hydroprocessing take into account the 
function or operation performed by a reactor when distinguishing 
between hydroprocessing operations. We, therefore, clarified in the 
November 1999 memorandum that it was based upon these functions, 
hydrotreatment and hydrorefining, that we determine the regulatory 
status of the spent catalysts from dual purpose reactors. It was never 
our intent to allow the scope of the hazardous waste listing 
determination to be defined or superseded by the fact that any 
particular catalyst performs a hydrocracking function, when that same 
catalyst also facilitates a hydrotreatment or hydrorefining function in 
the same unit or reactor.
    Further, in the November 29, 1999 memorandum, EPA explained that 
spent catalysts generated by refineries that self-classify spent 
catalyst from dual purpose hydroprocessors as hydrocracking catalyst, 
by identifying a unit as a hydrocracking unit when reporting to DOE, 
will nonetheless be K171 or K172 listed wastes if the unit performs a 
hydrotreatment or hydrorefining function. The final rule should not be 
interpreted as allowing petroleum refineries to classify dual purpose 
reactors as hydrocracking reactors and in doing so claim that the spent 
catalysts removed from these reactors are spent hydrocracking catalysts 
(which are not listed hazardous wastes). Rather, EPA relied on the PSA 
definitions because they are operational definitions. Thus, the rule 
does not permit refineries to avoid identifying spent catalysts from 
dual purpose reactors as listed hazardous wastes simply because they 
classified (or reclassified) the unit from which the catalyst is 
removed as a hydrocracking unit (this is based on the fact that the 
catalyst promotes hydrocracking as well as hydrotreating or 
hydrorefining). Catalysts removed from reactors that perform a 
hydrotreating or hydrorefining function, regardless of whether 
hydrocracking is performed in the same unit, are listed hazardous 
wastes, when spent.
    After EPA distributed the November 29, 1999 memorandum, it was 
brought to the Agency's attention that the memorandum could be 
interpreted as indicating that spent catalysts from petroleum 
hydroprocessing reactors that hydrocrack are captured by the hazardous 
waste listings, even though such reactors may conduct minimal and 
incidental hydrotreatment or hydrorefining of previously treated 
feedstock. For example, some reactors that hydrocrack petroleum 
feedstock treated previously to remove sulfur, metals and other 
impurities, may also in practice perform incidental and minimal 
hydrotreating or hydrorefining due to the operating parameters employed 
and the nature of the pre-treated feed entering the reactor.
    The Agency did not intend, when issuing the November 29, 1999 
memorandum, to include within the scope of the hazardous waste listings 
spent catalyst from hydroprocessing reactors, if such reactors perform 
only a minimal and incidental amount of hydrotreatment or 
hydrorefining. Therefore, we issued a memorandum dated June 1, 2000, 
clarifying that spent catalysts removed from hydroprocessing reactors 
that hydrocrack petroleum feedstocks and perform no more than ``minimal 
and incidental'' hydrotreatment or hydrorefining are not within the 
scope of the hazardous waste listing descriptions for K171 or K172. 
This is consistent with the regulatory language, and with the intention 
stated in the preamble and the November 1999 memorandum, to adopt an 
operational approach to defining hydroprocessing catalysts. A spent 
catalyst removed from a unit that performs hydrotreating or 
hydrorefining operations is a ``spent hydrotreating catalyst'' or a 
``spent hydrorefining catalyst'' within the meaning of the regulation, 
even if the unit also performs a hydrocracking function. However, EPA 
does not consider a spent catalyst removed from a reactor that performs 
hydrocracking operations to be a ``spent hydrotreating catalyst'' or 
``spent hydrorefining catalyst'' simply because some hydrotreating or 
hydrorefining unavoidably occurs in the unit. A copy of the Agency's 
June 1, 2000 memorandum also is included in the docket. The text of the 
memorandum also is included as an appendix to this announcement.
    EPA also received requests from members of the petroleum refining 
industry for clarification of the regulatory status of two specific 
types of spent catalysts. In response to these requests, we issued two 
letters to the requesting parties on June 1, 2000. We briefly summarize 
these letters below to provide an illustration of the application of 
the principles set out in the November 1999 and June 2000 memoranda.
    In a letter to Motiva Enterprises LLC, we concluded that the spent 
catalyst from the Motiva refinery's H-Oil unit is a listed hazardous 
waste. Based upon our determination that the H-Oil unit is a dual 
purpose hydroprocessing reactor designed to both hydrotreat and 
hydrocrack petroleum feedstock in the same reactor using a single, 
ebullating bed catalyst with no guard bed \5\ reactor, we found that 
the spent catalyst from

[[Page 35383]]

the H-Oil unit meets the listing description for spent hydrotreating 
catalyst (K171). The H-Oil unit is precisely the type of dual purpose 
reactor addressed in our memorandum of November 29, 1999, in that the 
H-Oil unit uses a single catalyst to achieve both a high level of 
hydrocracking (i.e., the boiling point of a high percentage of the feed 
is reduced) and a significant amount of hydrotreatment (i.e., a high 
percentage of heteoratoms are removed).
---------------------------------------------------------------------------

    \5\ A guard bed is used to mitigate pressure drop problems in 
the reactor due to contaminants in the feedstock.
---------------------------------------------------------------------------

    In a second letter, to Chevron Research and Technology Company, we 
evaluated the regulatory status of spent catalysts from Chevron's two-
stage ISOCRACKING hydroprocessing unit. In this letter, we stated that 
spent catalyst removed from the first stage of the ISOCRACKING unit, 
which performs a predominant treatment function, is a listed hazardous 
waste (K171). The inclusion of spent catalysts from the first stage 
reactor of this unit closely follows our determination that spent 
catalysts from guard bed reactors are within the scope of the listing 
descriptions for K171 and K172. This determination was clarified in the 
preamble to the August 6, 1998 final rule. Also, the final listing 
descriptions for K171 and K172 clearly designate spent catalysts from 
guard bed reactors as included within the scope of the listings (see 40 
CFR 261.32). In addition, we also concluded that spent catalysts 
removed from the second stage reactor of Chevron's ISOCRACKING unit are 
not spent hydrotreating or hydrorefining catalysts and are not captured 
by the listing descriptions for K171 and K172. The second stage reactor 
within the ISOCRACKING unit receives pretreated feed and performs a 
predominant hydrocracking function; any hydrotreatment that occurs in 
the second stage of the reactor is minimal and incidental.

III. Scope of the Public's Opportunity To Comment

    EPA is providing this opportunity for the public to comment on the 
memoranda described above to settle the lawsuit filed by API in 
February 2000. EPA believes that the explanation of the hazardous waste 
listings' applicability to spent catalysts removed from dual purpose 
reactors, as expressed in the memoranda, is correct both as a 
procedural and substantive matter. However, the Agency acknowledges 
that the memoranda are controversial within the regulated community and 
believes that providing this opportunity for public comment is in the 
interest of good government because it will provide interested parties 
with a chance to influence the Agency's thinking on this issue and 
avoid potentially unnecessary litigation.
    EPA is soliciting comment on the regulatory interpretation 
presented in the November 29, 1999 and the June 1, 2000 memoranda which 
establish the Agency's position that spent catalysts removed from 
petroleum hydroprocessing reactors that perform both a hydrotreatment 
(or hydrorefining) function and a hydrocracking function are captured 
by the hazardous waste listings K171 and K172. In addition to receiving 
general comments on the content of the memoranda, the Agency solicits 
comments as to whether there are specific situations where it is not 
clear whether, or relatively how much, hydrotreatment or hydrorefining 
is either occurring or intended. If such cases exist, EPA is interested 
in hearing whether there is some way to provide greater clarity in 
general guidance for distinguishing those situations. For example, EPA 
is interested in comment on whether there is a better test for 
generally describing dual purpose units that are not H-Oil, LC-Fining, 
or T-Star reactors (the reactors that, as noted above, EPA knows about) 
but perform more than ``minimal and incidental'' hydrotreating or 
hydrorefining, or whether decisions regarding the regulatory status of 
these other reactors must be made on a case-by-case basis in all 
instances. EPA particularly requests that any improvements suggested by 
commenters be consistent with our focus on determining when a catalyst 
is used in a reactor that performs a hydrotreatment or hydrorefining 
function, regardless of whether it also is performing a hydrocracking 
function. Based on comments received, EPA may further clarify, or 
change, the approach taken in the November 1999 and June 2000 memoranda 
for identifying dual purpose reactors.
    EPA will evaluate comments relevant to the issues discussed in the 
two memoranda and will publish a response to comments in the Federal 
Register announcing its intention either to reaffirm (and possibly 
clarify) the memoranda, or to take a different approach, based on the 
comments received. EPA will continue to apply the approach set forth in 
the memoranda during the pendency of this proceeding.
    EPA is not reopening comment on any substantive or procedural 
issues affecting the August 6, 1998 hazardous waste listing rule. 
Comments are requested solely on the issues addressed within the 
context of the two memoranda. EPA is not soliciting comment on the 
hazardous waste listings themselves and does not intend to respond to 
such comments, if received.
    Likewise, we are not soliciting comments on the applicability of 
the existing petroleum refining listings to the provisions of CERCLA. 
Wastes listed as hazardous wastes under RCRA are by definition 
hazardous substances under CERCLA, and are included in the list of 
hazardous substances in 40 CFR 302.4, along with their corresponding 
reportable quantities (``RQs''). Hazardous substance RQs are those 
quantities of the designated chemical or waste that trigger certain 
reporting requirements if released to the environment.

    Dated: June 11, 2001.
Michael Shapiro,
Acting Assistant Administrator, Office of Solid Waste and Emergency 
Response.

Appendix A: November 29, 1999 Memorandum on Dual Purpose Catalysts

Memorandum

Subject: Spent Catalysts From Petroleum Refining ``Dual Process'' 
Units.
From: Elizabeth Cotsworth, Director, Office of Solid Waste (5301W).
To: RCRA Senior Policy Advisors, Regions I-X.

    On August 6, 1998, EPA listed as hazardous waste spent 
hydrotreating catalysts (K171) and spent hydrorefining catalysts 
(K172) generated in petroleum refining operations (63 FR 42110). The 
Agency took no action regarding a listing determination for a third 
type of spent petroleum hydroprocessing catalyst, spent 
hydrocracking catalysts.
    Since promulgation of the final rule, questions have been raised 
with regard to the regulatory status of spent catalysts removed from 
``dual purpose'' reactors. Such reactors process refinery streams by 
both treating the feed to remove contaminants, such as sulfur, 
nitrogen and metal compounds (i.e., hydrotreating), in addition to 
converting petroleum molecules to lighter fractions (i.e., 
hydrocracking). In addition, it has come to the Agency's attention 
that some affected parties may believe that the definitions provided 
for catalytic hydrotreating and catalytic hydrocracking processes in 
the final Petroleum Rule, as well as the listing descriptions for 
spent hydrotreating catalysts (K171) and spent hydrorefining 
catalysts (K172), allow petroleum refineries to self-classify spent 
catalysts from dual purpose hydroprocessors as hydrocracking 
catalysts (which are not listed hazardous wastes), even in cases 
where such spent catalysts are functioning, at least in part, as 
hydrotreating (or hydrorefining) catalysts.
    As explained in the preamble to the final rule, definitions for 
petroleum hydrotreating, hydrorefining, and hydrocracking operations 
are not universally established. After considering all relevant 
materials in the rulemaking record, EPA decided that the simplest 
way to differentiate between

[[Page 35384]]

hydrocracking and the other two petroleum hydroprocessing operations 
is to rely on definitions provided in the Department of Energy's 
(DOE) Petroleum Supply Annual (PSA). The PSA contains operational 
definitions of hydrotreating and hydrocracking for purposes of 
submitting form EIA-820 to DOE. EPA rejected reliance on other 
methods of differentiation, such as specific percentages of the feed 
that are reduced in molecular size for each of the operations.
    The Agency's interpretation of the final listing determinations 
for spent hydroprocessing catalysts is that spent catalysts from 
petroleum hydroprocessors performing hydrotreating or hydrorefining 
operations are captured by the listings, regardless of whether 
hydrocracking also occurs in a dual purpose unit. This is because 
the final rule, as well as the PSA, defines a spent catalyst as 
hydrotreating or hydrocracking on the basis of the type of 
hydroprocessing operation in which the catalyst was used. This is 
consistent with the intent of the listing to identify wastes 
containing the hazardous constituents that are removed by catalytic 
hydrotreating or hydrorefining, regardless of whether hydrocracking 
also is occurring.
    In addition, there may be a misunderstanding involving whether 
refineries may self-classify spent catalyst from dual purpose 
hydroprocessors as hydrocracking catalyst, by merely identifying a 
unit as a hydrocracking unit when reporting to DOE. The final rule 
should not be interpreted as allowing petroleum refineries to 
classify ``dual purpose'' units as hydrocracking units and in doing 
so claim that the spent catalysts removed from these units are spent 
hydrocracking catalysts (which are not listed hazardous wastes). In 
the preamble to the final rule, EPA explained that relying on the 
PSA is the ``simplest'' way to differentiate among the processes and 
that, if a refinery has been classifying its hydroprocessor as a 
hydrocracker, the unit would generally not be covered by K171 or 
K172. Rather, as noted above, EPA relied on the PSA definitions 
because they are operational definitions. Thus, the rule does not 
permit refineries to avoid identifying spent catalysts from dual 
purpose units as listed hazardous wastes simply because they 
classified (or reclassified) the unit from which the catalyst is 
removed as a hydrocracking unit, based solely on the fact that some 
hydrocracking takes place in the presence of the catalyst. Catalysts 
that perform a hydrotreating function, regardless of whether 
hydrocracking is performed in the same unit, are listed hazardous 
wastes, when spent. Consequently, as explained above, the Agency's 
position with regard to spent catalysts removed from dual purpose 
reactors is that these spent catalysts are listed hazardous wastes.
    As you know, in addition to correctly classifying spent 
catalysts as solid and/or hazardous wastes, generators also are 
required to determine if spent catalysts that are hazardous wastes 
(either because they meet the definitions of listed wastes K171 or 
K172 or because the spent catalyst exhibits a characteristic of 
hazardous waste) have to be treated to meet the land disposal 
restrictions standards before being land disposed. Please note that 
treatment of spent catalysts that are listed hazardous wastes K171 
and K172 may require a combination of thermal treatment (to oxidize 
sulfides and vanadium), vanadium recovery, and stabilization 
(without improper dilution) to achieve the applicable land disposal 
restrictions.
    Should you have any questions with regard to this issue, please 
feel free to contact Patricia Overmeyer of my staff at (703) 605-
0708.
cc:
    Mr. Ralph Colleli, American Petroleum Institute,
    Mr. John W. Hilbert III, The Ferroalloys Association
    Association of State and Territorial Solid Waste Management 
Officials

Appendix B: June 1, 2000 Memorandum on Spent Dual Purpose Catalysts

Memorandum

Subject: Spent Catalysts From Petroleum Refining ``Dual Process'' 
Reactors
From: Elizabeth Cotsworth, Director, Office of Solid Waste (5301W).
To: RCRA Senior Policy Advisors, Regions I-X.

    On November 29, 1999, I sent you a memorandum entitled ``Spent 
Catalysts from Petroleum Refining `Dual Process' Units.'' In that 
memorandum, I described the Agency's position on the regulatory 
status of certain spent hydroprocessing catalysts. I stated that, in 
response to questions raised regarding the regulatory status of 
spent catalysts removed from ``dual purpose'' reactors \1\ in 
petroleum refineries, EPA considers spent catalysts from such units 
to be listed hazardous wastes (i.e., K171, K172).
---------------------------------------------------------------------------

    \1\ Note that the words ``unit'' and ``reactor'' are used 
interchangeably by EPA. A petroleum refinery may consider a unit to 
be made up of a number of reactors. Our concern is with the proper 
classification of a spent catalyst from or generated from a single 
specific vessel based on the function performed by the catalyst, 
regardless of the configuration or terminology used by individual 
refineries.
---------------------------------------------------------------------------

    After this memorandum was distributed to stakeholders, the 
Agency received questions from interested parties regarding its 
potential scope. A primary concern raised was that the wording of 
the memorandum may be interpreted by Regional and State officials in 
a way that would define virtually all spent hydroprocessing 
catalysts generated by the petroleum refining industry as listed 
hazardous waste under RCRA Subtitle C. There was concern that 
because some hydrotreating may occur in all hydroprocessing 
reactors, regulators would conclude that any hydrotreating occurring 
in a reactor would cause the spent catalyst removed from the reactor 
to be considered a listed hazardous waste. This was not our 
intention.
    I would like to clarify that we do not consider spent catalysts 
from a petroleum hydroprocessing reactor to be a listed hazardous 
waste (meeting the definitions of either K171 or K172) solely 
because some incidental and minimal amount of hydrotreatment of 
feeds occurs in such unit. These catalysts are, however, subject to 
evaluation against the existing hazardous characteristics. We 
recognize that some minimal amount of hydrotreating may occur in any 
hydroprocessing reactor, even reactors that hydrocrack feedstreams 
containing very low levels of sulfur, nitrogen, and metals. As a 
general rule, we consider the definitions provided in the Department 
of Energy's Petroleum Supply Annual (PSA) to be the best way to 
identify processes that hydrotreat and processes that hydrocrack. 
The definitions used in the PSA define hydroprocessing in terms of 
the function performed. A more complete description of these 
definitions is provided in the preamble to the petroleum refining 
listing determination (63 FR 42110, August 6, 1998, see Pp. 42155-
42156).
    Again, the November 29, 1999 memorandum was directed more at 
alerting Regional and State officials to the issue of the status of 
spent catalysts removed from reactors that both hydrotreat and 
hydrocrack petroleum feedstreams in a single reactor. We are 
alerting all interested parties that we continue to stand by the 
determination in the November 29 memorandum that such ``dual 
purpose'' reactors generate spent catalysts that are listed 
hazardous wastes subject to regulation under RCRA Subtitle C. At the 
same time, we also are clarifying that spent catalysts from 
hydrocracking reactors that do only minimal and incidental 
hydrotreating are not listed hazardous wastes. However, as noted 
previously, spent catalysts from hydrocracking reactors are subject 
to evaluation against the hazardous waste characteristics.
    If you should have any questions regarding this clarification, 
please feel free to contact either Rick Brandes at (703) 308-8871 or 
Patricia Overmeyer at (703) 605-0708.
cc:
    Mr. Ralph Colleli, American Petroleum Institute
    Mr. John W. Hilbert III, The Ferroalloys Association
    Mr. Thomas Kennedy, Association of State and Territorial Solid 
Waste Management Officials
[FR Doc. 01-16685 Filed 7-3-01; 8:45 am]
BILLING CODE 6560-50-P