HADCO

David Lennett to James Sullivan RE: Comments on Draft FPA
February 13, 1997

Mr. James Sullivan (DECA-RCB)
EPA Region II
290 Broadway
New York, NY 10007-1866

Re: Draft HADCO FPA

Dear Mr. Sullivan:

These comments are submitted on behalf of the Environmental Defense Fund (EDF) in response to the U.S. Environmental Protection Agency's (EPA's) draft Final Project Agreement (FPA) developed for the HADCO Corporation under Project XL, as announced at 62 FR 3508 (January 23, 1997). The comments are principally directed toward whether the draft FPA is consistent with RCRA requirements, and not whether the project is appropriate for Project XL. It is not at all clear that the proposed project meets the Project XL criteria for superior environmental performance, stakeholder involvement, or inappropriate risk shifting.

A. Description of the Commenter

EDF is a national non-profit environmental advocacy organization with more than 300,000 members dedicated to the protection of human health and the environment by inter alia, eliminating unnecessary exposure to hazardous substances, including hazardous wastes. EDF members live, work, and recreate in areas immediately affected by the improper management of hazardous and industrial wastes, including the F006 wastes addressed in this FPA. EDF participates extensively in RCRA implementation and oversight, including activities in the regulatory, legislative, and judicial contexts.

B. Summary of the HADCO FPA

The HADCO draft FPA essentially commits the company to performing certain sampling and analyses of its F006 wastes. After completion of this effort, HADCO will submit the data to EPA, and the States of New York and New Hampshire for their review.

Within a very short time after receiving the data, EPA would inform HADCO as to its potential eligibility for a conditional delisting (based upon sending the waste directly to a smelter for recovery) or a solid waste variance (based upon the same scenario) pursuant to 40 CFR 260.30. The company will then submit the appropriate delisting or solid waste variance petition.

If a delisting petition is submitted, the statutory public participation procedures will be followed. If a solid waste variance petition is submitted, the associated public participation procedures are not specified in the FPA. In either case, EPA intends to propose the delisting or solid waste variance within 45 days of petition receipt (or as soon thereafter as possible), an extraordinarily short period of time for Agency review and analysis.

In exchange for expedited consideration of its petition, HADCO agrees to reclaim nonhazardous copper edging drilling and dust if the cost savings can be justified, and install a sludge dryer (if technically and economically feasible) to reduce the quantity of sludge transported.

C. Comments on the Draft FPA

The draft FPA is deficient in three significant respects. First, the organic constituent sampling proposed is not adequate. Complete data on the organic content of the waste is needed to ascertain whether the F006 waste should be regulated for factors other than those related to the original listing, and to render a "toxics along for the ride" assessment of the proposed recycling activity.

As drafted however, the organic sampling is limited to a grab sample analyzed for toxicity characteristic volatile organic constituents. Significantly, no basis is provided for EPA to conclude that this particular and very limited universe of organic constituents represents the only organic constituents potentially present in the waste.

Organic constituents in the waste may originate from solvents used by the company, and from other products (or impurities in such products) employed in HADCO's printed board manufacturing process. It is highly doubtful such organics are limited only to those covered in the TC. Therefore, EPA must either perform a rigorous review of materials used at the HADCO facilities to determine their organic content, or require a broader sampling of organic chemicals.1

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1 It should be noted that once a particular analytical method is employed on a waste sample, the incremental cost of identifying additional organic chemicals using the same method is extremely small. Moreover, priority pollutant analyses are routinely performed by companies such as HADCO.

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EDF acknowledges the draft FPA also provides for TOC sampling, and if TOC samples exceed 500 ppm (by weight), then HADCO must demonstrate that the samples do not contain greater than 500 ppm total concentration of Appendix VIII organic constituents. However, neither the 500 ppm TOC cutoff for speciating organic constituents that may be present in the waste, nor the 500 ppm threshold for the total concentration of Appendix VIII organic constituents, has a relevant risk basis as required for the Section 3001(f) delisting determination. Rather, the waste could contain up to 500 ppm of any toxic organic, even though EPA has previously based hazardous waste listings on concentrations of particular organic constituents well below 500 ppm. See e.g., 57 FR 37289 (August 18, 1992) (coke byproduct wastes listed as hazardous due to presence of constituents such as chrysene and benzo(a)pyrene at concentrations averaging less than 100 ppm).

Indeed, the 500 ppm total organics value in the draft FPA is merely the cutoff point for determining whether a smelter is burning solely for metal recovery, and thus eligible for an exemption to the current BIF rules. See 40 CFR 266.100(c)(2)(i). The exemption was created to defer regulation of smelters and other similar devices under RCRA, pending further study by the Agency of jurisdictional issues and anticipated Clean Air Act rules. As noted by the Agency at the time, burning 500 ppm of organic hazardous constituents may create a health risk if conducted improperly, therefore the cutoff level was not a determination of "safety". Moreover, the deferral applied only to the BIF unit and not to prior transportation and storage controls, therefore the cutoff value was not intended for use in either a delisting or solid waste variance context. See 56 FR 7143-44 (February 21, 1991).

Second, the draft FPA refers to organic constituent parameters/analyses as "TCLP volatile organic analyses" or 'TCLP organic constituents", raising the issue as to whether the sampling of the organics will reflect total or TCLP concentrations. Since the management scenario under consideration is placement in a smelter, total concentrations is the most relevant parameter, so the language of the draft FPA should be modified to clarify this aspect of the sampling program.

Third and finally, the silence of the FPA regarding the availability of a formal public notice and comment period on a petition for a solid waste variance is troubling. Since this petition is part of Project XL, involves facilities in more than one state and EPA Region, and is potentially precedent setting, the draft FPA should expressly provide for the same level of public participation under either the delisting or solid waste variance processes. Both the RCRA and Project XL implications of a potential solid waste variance petition beckon an open, transparent, federal stakeholder notice and comment process in the Federal Register.

On a final note, while EDF appreciates the desire of EPA and the states to encourage superior environmental performance, the extremely short times provided in the draft FPA for review of analytical data and the subsequent petition raise concerns about the adequacy of the anticipated regulatory agency review process. Recent revelations regarding the 1991 Reynolds Metals delisting suggest EPA's existing delisting procedures may not be adequate to protect human health and the environment. See 62 FR 1992-1996 (January 14, 1997). Shortening review times to an extreme that would preclude field sampling and other data verification activities could further compromise the RCRA program.

Thank you for your attention.

Sincerely,

David J. Lennett
Counsel for EDF

cc: Regulatory Reinvention Pilot Projects, EPA
Chris Van Loben Sels, NRDC
Karen Florini, EDF

HADCO

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