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NYSDEC to Michael Shapiro

New York State Department of Environmental Conservation
Division of Solid & Hazardous Materials
50 Wolf Road, Albany, New York 12233-7250
(518) 457-6934 Fax (518) 457-0629

Mr. Michael Shapiro
Director
Office of Solid Waste (MC5301)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460

Dear Mr. Shapiro:

RE: Jurisdictional Status of Metal-Rich Sludges

The New York State Department of Environmental Conservation is seeking input from the United States Environmental Protection Agency (EPA) on an issue which has been considered previously by the EPA Office of Solid Waste, but perhaps not in the context in which it is addressed herein.

Here's the background on this issue.

A company manufactures printed wire boards at facilities located in three different states. One facility is located in New York State. These facilities are engaged in metal finishing and each produces a wastewater treatment sludge that currently meets the definition of F006. These sludges are very rich in copper, ranging up to 25% (i.e., 250,000 ppm) copper by weight. Significant hazardous constituent metals, including arsenic, chromium, lead, and nickel, are also present, but at levels ranging from 0.01 - 0.1% (100-1,000 ppm).

The company wishes to send these sludges to a primary copper smelter for extraction of the copper after the sludge has been dewatered further by adding sludge dryers to the company's existing wastewater treatment systems. The copper content of the sludge is comparable to, and probably exceeds, most virgin copper-bearing ores that are currently processed by primary copper smelters. With regard to toxics "along for the ride" (TAR), the levels of arsenic, chromium, lead, and nickel in the sludges will be compared to the ranges found for these metals in virgin copper- bearing ores.

The issue here is whether it is possible for the extraction of metals from these sludges to rise beyond mere "reclamation" to legitimate "use/reuse" as a feedstock substitute for primary smelters. The "use/reuse" exclusion of 40 CFR 261.2 (a) (1) (i) would, of course, exclude the material from being a solid waste under subtitle C of RCRA.

Mr. Michael Shapiro

If a F006 sludge is sent to a primary (not secondary) metal smelter, would EPA agree that the material could be considered a legitimate feedstock substitute and could qualify for the "use/reuse" exclusion if the following conditions are met:

1. That the levels of the metal or metals to be extracted for production purposes must be comparable to or exceed what would be found in virgin raw materials that the primary smelter would otherwise be processing; and

2. That the levels of all significant hazardous constituents present that are not targeted for extraction must be comparable to or lower than those which would normally be found in virgin ores that the primary smelter would otherwise be processing for extraction of the target metals.

If EPA would not concur with the application of the use/reuse exclusion to F006 sludges that meet these conditions and are processed by primary smelters, would EPA alternatively consider applying the use/reuse exclusion on a pilot basis, in accordance with a Project XL proposal?

We look forward to your reply. Thank you in advance for your assistance. If any further information is needed, please have your staff contact Mr. Lawrence J. Nadler, of my staff, at (518) 485-8988.

Sincerely,

Norman H. Nosenchuck, P. E.
Director
Division of Solid & Hazardous Materials

cc: C. Simon - EPA Region II

cc: N. Nosenchuck
R. Mitrey
J. Wilson
P. Counterman
J. Iannotti
L. Nadler
W. Ebarle
W.Yeman

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