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California Implementation Language

    Comments of the New York State
    Department of Environmental Conservation

    Final Project Agreement Workplan for HADCO
    California Implementation Language

On July 18, 1996, we received the draft California implementation language. Certain aspects are unclear and should be addressed by Gary Murchison, so that there is no possibility of confusion being created.

1. HADCO sludges are not hazardous due to copper content. Copper, as such, is not even a hazardous constituent. HADCO sludges are hazardous because they meet the definition of F006 and because they contain hazardous constituents, such as arsenic; lead; nickel, and chromium (otherwise, they could have been delisted long ago). I would suggest that the first "sentence" in (3)(b) could easily be shortened to read, "If the sludge qualifies for exclusion under California's Hazardous Waste Recycling Law."
2. It is not clear how HADCO's sludges would qualify for exclusion under Section 25143.2 (d)6) of the California Health & Safety Code.

    In the first place, the sludge is really being used as a safe and effective substitute for a "raw material," not a "commercial product," although this may be a small point. If copper-bearing ore is considered to be a "product" within the context of California law, then this probably a non-issue.

    The principal concern is that (d)(6) does not appear to apply to materials that are being treated by any treatment technology or process not listed in (6)(A) - (H). In the case of HADCO, I see a problem, both with regard to the treatment used to dewater the sludge and with regard to the treatment used to extract the metals from the dewatered sludge. If the sludge dryer used to dewater the sludge is of the evaporative type that involves the additional of any external heat, this would not appear to be included within (6)(F). The principal reclamation technology, which is thermal separation in an industrial furnace, is clearly not found within the list of technologies in (6)(A) - (H).

    In summary, as I read the language of (D)(6), I do not see how HADCO sludges would qualify, since it appears that they will be treated by non-qualifying technologies.

      Comments of the New York State
Department of Environmental Conservation

EPA Edit of Discussion Draft for
Final Project Agreement Workplan for HADCO

These may be taken as the comments of the NYSDEC on current drafts of the workplan in general, as well as EPA's most recent edit (July 16, 1996) in particular. This is the first opportunity where time has allowed more comprehensive review of the final project agreement/workplan in general. The numbering system follows that in the EPA Edit Draft of July 16, 1996.

      6. The second sentence should be revised to read, "Thereafter, if an agency elects to reverse its decision pursuant to appropriate regulatory authority, such revocation must re published in the Federal Register or appropriate analogous state publication."

      7. The last sentence should be rewritten as follows:

      "If an agency decides to terminate its participation in this project after the "XL Implementation Date" (as defined in paragraph 24 hereof), the agency will provide written notice to HADCO and all other participating agencies and will publish the decision in the Federal Register or appropriate state publication to provide adequate notice and effectuate its terms."

      13. If any sample collected exceeds 500 ppm TOC, HADCO should be required to analyze for all Appendix VIII organic hazardous constituents that might reasonably be expected to be present because of use in HADCO's operations. 40 CFR 266.100 limits Appendix VIII constituents to 500 ppm, not organics in general.

      14. Since we are talking about initial eligibility decisions, this paragraph should be worded differently. USEPA alone should determine the relative risk associated with granting a conditional delisting, since USEPA must delist first before any of the three states involved could act. Conversely, it should be the responsibility of the state agencies alone to determine the appropriateness of the solid waste variance, if they are all authorized to issue such variances on behalf of USEPA.

      16. The lead statement should be revised as follows:

      "The agencies will consider the specific criteria set forth at 40 CFR 266.100 and reiterated below, to determine whether a primary smelting furnace can accept HADCO's WWT sludge for metal recovery without being subject to permitting under 40 CFR 266." The indicated criteria are not really being used to determine whether HADCO's sludge is appropriate for metal recovery, but rather whether or not an unpermitted smelting, melting, or refining furnace can accept such material.

      Also, the last paragraph in this item should be rewritten as follows: "HADCO's sludges must meet the above listed criteria in order to make a conditional delisting or solid waste variance possible, wherein sludge management (why would we want to call it "waste disposal) would be limited to reclamation through smelting." Meeting these criteria neither supports nor fails to support either a delisting or a variance. It is more accurate to say that failure to meet these criteria would disqualify the material from either outcome.

      17. The indicated documentation is also needed in order for HADCO to qualify for a solid waste variance.

      20. If the states involved are all authorized to grant solid waste variances, then it is for the states, not USEPA, to determine if the sludges may be eligible for a solid waste variance.

      22. In the case of a solid waste variance, HADCO should submit its petitions to the appropriate state regulatory agencies, and not USEPA, if the state is authorized to grant variances.

      23. This provision is appropriate, but should also apply to the state agencies in the case of variance petitions.

      24. Once again, decisions regarding delisting are appropriately made by USEPA first. Decisions regarding solid waste variances are made by authorized states.

      27. Draft implementation language for New York State has been provided to USEPA. Note that it is marked "draft," since it has not yet been reviewed by Counsel.

      38. This paragraph needs explanation. Only after the sludge has been dewatered is it eligible for either delisting or a solid waste variance. If, for an initial period of time, the dewatering is going to be done at another location, other than at a HADCO facility, HADCO would have to manage and transport the material to such a location as a regulated hazardous waste. DEC, for example, can only delist or grant a variance for waste that is under our jurisdiction. If the sludge is dewatered at the Owego location an sent directly to a primary smelter, then it could leave the HADCO site as either a delisted waste or a material which is not a solid waste, pursuant to a variance. However, if the dewatering were to take place at some location outside of New York State, DEC could not delist this waste or grant a variance for it, since it did not qualify for either within the boundaries of New York State.

      We need to discuss the significance of this paragraph so that there is no misunderstanding. Prior to the point at which a material qualifies for a delisting or a solid waste variance, it may still be very much a regulated hazardous waste.


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