Molex Incorporated

Letter from David Lennett (NRDC, EDF) to David Doyle (EPA)

Law Office of David J. Lennett
P.O. Box 71, Dennis Hill Road
Litchfield, Maine 04350
(207) 582-3826 telephone
(207) 582-1231 telefax

December 3, 1997

Mr. David Doyle
RCRA and Toxics Division EPA Region VII
726 Minnesota Avenue
Kansas City, KS 66101

Re: Proposed Molex Variance

Dear Mr. Doyle:

Please consider this letter the comments of the Environmental Defense Fund (EDF) and the Natural Resources Defense Council (NRDC) on the proposed variance from the definition of solid waste for Molex, Inc., as published in the November 3, 1997 Federal Register at 62 FR 59332.

Description of the Commenters
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.

NRDC is a national public interest environmental organization with members in every state and more than 350,000 members nationwide. NRDC participates extensively in regulatory, legislative, and judicial proceedings affecting surface water and air quality under federal and state law, including but not limited to the federal Clean Air Act, Clean Water Act, and RCRA.

Summary of the Variance
Under the variance as proposed, Molex would be granted a two year variance from the definition of solid waste as part of a Project XL Final Project Agreement (FPA) for certain wastewater treatment sludges newly generated at the facility resulting from upgrades in the wastewater treatment system. These upgrades allow Molex to improve the segregation and collection of metals in plant wastewaters to facilitate offsite metals recovery.

The purpose of the solid waste variance is apparently twofold. Prior to the upgrade, Molex was managing its wastewater treatment sludge as a "recyclable material" pursuant to 40 CFR 266.70 and corresponding state regulations (the precious metals recovery provisions), (ftn1: Under the precious metals recovery rules, generators and transports are subject to manifest requirements only, and the recovery operation itself is unregulated at the present time) based upon the gold content of the combined sludge (ftn2: See 62 FR 59289 (November 3, 1997)). Since the system upgrades now segregate the sludges by metal type, only a small portion of the newly generated sludges contains gold. Accordingly, EPA seeks to prevent any penalization of Molex resulting from improved metals recovery at the facility by granting a temporary variance for the nickel, copper, and tin/lead sludges as well.

Second, in exchange for the variance, Molex agrees to provide additional information regarding the treatment system upgrades, the various sludges generated, their amenability to recovery, and other relevant information to determine the wisdom and transferability of the treatment system upgrades for the industry, and the appropriate approach under RCRA for managing the sludges.

For the reasons explained below, the proposed solid waste variance is premature since EPA lacks waste sampling data and other relevant information necessary to issue a solid waste variance, albeit even a temporary one Further, assuming arguendo a temporary variance prior to waste characterization is appropriate under the circumstances, the waste sampling required under the FPA is inadequate.

Comments on the Proposed Variance
First, the proposed variance starts from the premise that the old sludge was properly managed under the precious metals recovery provisions, and therefore the "baseline" practice was largely exempt from RCRA. On the basis of the record supporting the proposal, this assumption cannot be sustained (ftn3: While the old sludge is no longer generated, EPA should address whether the precious metal recovery provisions properly applied to the sludge for two important reasons. First, other facilities may be availing themselves of the previous metal recovery provisions under similar circumstances, therefore EPA should determine and publish its regulatory views on this issue as a programmatic enforcement matter. Indeed, EPA appears to bless application of the precious metal exemption to the old Molex sludge in the proposal (see 62 FR 59289), and silence upon the part of the Agency in the final rule may be construed as further support for the exemption claim.

Second, insofar as the instant proposal is viewed as a means of providing regulatory relief so that Molex is not subject to greater RCRA controls following the wastewater treatment system upgrade, EPA must first determine whether the lesser controls applicable to the old sludge was lawful and appropriate.) The record contains no waste sampling data of either the old combined sludge or the newly generated sludges, therefore the gold content of the combined sludge is not available. Moreover, in correspondence with EPA dated October 18, 1995, Molex indicated it paid $0.50 per pound in "recycling fees" to dispose of the old gold-containing sludge. At a minimum, this $1,000 per ton disposal fee strongly suggests the gold content of the sludge was not present in "economically significant amounts", the threshold eligibility criterion for the precious metals recovery rules (ftn4: Payment to a reclaimer of any amount, let alone $1,000 per ton, is important evidence that the activity is not precious metals recovery. See 50 FR 649 (January 4, 1985). Indeed, EPA created the precious metals recovery exemption because it believed the value of the metals themselves would ensure proper management of the waters, noting armed guards are sometimes used to accompany shipments, and generators often have tolling arrangements requiring reclaimers to return the recovered metal to the generators. See 50 FR 648. These assumptions regarding precious metals recovery operations do not appear applicable where a generator pays $1,000 per ton to dispose of the waste.) Second, EPA proposed to grant the temporary variance based upon the "commodity-like" nature of the various sludges, but without data regarding the chemical content of the sludges, the Agency lacks a sufficient basis to grant the variance. Pursuant to 40 CFR 260.31(c), the determination should be based upon a number of specified factors, including the degree to which the sludge resembles the analogous raw material at the metal reclaimers. Without any waste characterization data, the requisite determination cannot be made. Indeed, under similar circumstances, EPA required waste analyses prior to its consideration of a potential solid waste variance for the HADCO Project XL FPA finalized a little over a month ago (ftn5: See 62 FR 52334 (October 7, 1997)).

Third, even assuming arguendo that granting a temporary variance without waste analysis data is appropriate, the follow-up waste testing proposed in the FPA is inadequate. Specifically, no sampling for individual organic chemicals is required unless total TOC concentrations exceed 500 ppm, and if this TOC threshold is exceeded, only the TCLP organic compound concentrations must be individually determined (ftn6: In addition to the toxicity characteristic organics sampling, Molex must also demonstrate the waste does not contain greater than 500 ppm total concentration of organic compounds on Appendix VIII to 40 CFR Part 261.) No basis is provided in the record for either the 500 ppm TOC threshold or the premise that only TCLP organics may be found in the waste (ftn7: The draft FPA refers to organic constituent parameters/analyses as "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).

Organic constituents in the waste may originate from solvents used by the company, and from other products (or impurities in such products) employed in Molex's manufacturing process. It is quite possible that such organics are not limited to those covered in the TC (ftn8: In its October 18, 1995 letter to EPA, Molex indicates some of the plating processes at the facility use "significant organic additives".While the company has indicated orally to the Agency that these organics are biodegradable animal products, there is no sampling or other objective information available in the existing record to demonstrate all the organic chemicals used are biodegradable or non-toxic). Therefore, EPA must either perform a rigorous review of materials used at the Molex facility to determine their organic content, or require broader sampling or organic chemicals (ftn9: 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 Molex).

While the draft FPA provides for TOC sampling, 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. 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 is 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 solid waste variance context. See 56 FR 7143-44 (February 21, 1991).

Faced with similar circumstances in the HADCO FPA, EPA reassessed its sampling protocol and ultimately required additional organics testing The Agency required testing for individual organics using Methods 8240B (volatile chemicals), 8250A (semi-volatile chemicals), and 8315 (carbonyl compounds) (ftn10: 62 FR 52336-7 (October 7, 1997)).

Conclusion
While EDF and NRDC appreciate the efforts of Molex to upgrade its wastewater treatment system, and the objective of Project XL to encourage substantial environmental enhancement, the Agency must remain cognizant of its responsibilities under RCRA to ensure the resulting wastewater treatment sludges are appropriately managed. Further, the practical consequences of following proper procedures and obtaining the necessary data prior to proposing the variance do not appear overly burdensome in this instance. If the metals in the new sludges are indeed recoverable at favorable prices to Molex, the company can store and transport the sludges as a 90-day generator until the required information is produced by the company.

The Agency should also expressly review the propriety of the precious metals recovery provisions as applied to the old sludge, since these circumstances may be repeated elsewhere and the regulated community may interpret the FPA and proposed variance as an endorsement of the prior practice.

Thank you for your attention.

Sincerely,

David J. Lennett

Molex Incorporated

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