HADCO

Nadler and M. Moroukian to Region II RE: Revised Draft FPA for HADCO

M E M O R A N D U M
TO: Jim Sullivan/Kate Donnelly - EPA Region II

FROM: Lawrence J. Nadler and Mark Moroukian - NYSDEC

SUBJECT: Revised November 14, 1996 Final Draft FPA for HADCO

DATE: November 26, 1996

These are our comments on the revised final draft FPA dated November 14, 1996:

I. Paragraph 2: The substitute language at the end of this paragraph is satisfactory, except that certain letters did not print out, including H, M, and F.

II. Paragraph 7: We do not see the reason for merging Sections III and V into the terms of the conditional delisting or sold waste variance. Section III deals with actions which precede the delisting or variance, and Section V is just a general requirement as to who notices and communications required by this agreement will be sent to.

III. Paragraph 26: Shouldn't the second sentence read, "At a minimum, the Projected Benefits Report will include the following data developed from WWT sludge shipment records for 1995 and 1996 and available 1995 and 1996 records analyses and estimates"?

In addition, when is this initial report to be submitted? The previous draft specified a due date of 60 days from the XL Implementation Date, but that language has been deleted. In accordance with paragraph 18, it seems to be implied that the report would be submitted, together with HADCO's petition for a conditional delisting or solid waste variance. Even if this is not what was intended, this would be a better way of addressing submission of the initial report since, without a delisting or variance, HADCO cannot implement the project anyway.

IV. Paragraph 27: For paragraph 26, it is clear that HADCO is to use data generated by calendar year for its initial report. However, for the purposes of paragraph 27, we still need to make it clearer as to what year the term, "annual" refers to. If the reporting year commences on the XL Implementation Date, we can easily do so. We can simply add a sentence stating, "For the purposes of this paragraph, the term, "year" refers to the twelve-month period beginning on the XL Implementation Date and each succeeding twelve-month period thereafter during the term of this project."

In addition, on the fourth line of this paragraph, it appears that the reference to "paragraph 20" should be to "paragraph 26."

V. Paragraph 32: The final sentence should be revised as follows: "If, based upon their review, the EPA and State Parties determine that this project was successful, the EPA and State Parties may extend the terms of any variances or delistings granted pursuant to Section III of this Agreement with limited terms, through publication of notice in the Federal Register and/or relevant state procedures." If either state issues a variance or delisting for a fixed term, there are normally state procedures that must be followed in order to extend, revoke, or modify such an action.

VI. Sections VIII, IX and X: We have little problem with the text of these provisions, except that they are full of misspellings, due to an apparent computer glitch that prevented the letters K, Q, W, X, and Z from printing out.

In addition, in the second line of Section X, the word, "authority" at the end of the line should apparently be replaced by the word, "action."

VII. Appendix A

1. Applicability and Scope/Overview of Project. A new paragraph should be added after the seventh paragraph (which relates to the problems with direct shipment to smelters by companies in the PWB industry). The new paragraph should read as follows:

"HADCO and its competitors in the industry would also face problems in directly shipping their copper-containing WWT sludges to domestic smelters as a hazardous waste. Under the Boiler and Industrial Furnace (BIF) rules of 40 CFR 266-Subpart H, smelting, melting, and refining furnaces that reclaim metals are exempted from hazardous waste facility permitting when they co-process hazardous wastes, but there are other regulatory impacts. Slags and slag tailings from primary copper processing are exempt from being hazardous wastes under the "Bevill" exclusion, presently codified at 40 CFR 26.4 (b)(7)(i) and (ix). However, any domestic primary copper smelter which co-processes a listed hazardous waste for copper recovery would be forced to carry out the demonstration requirements of 40 CFR 266.112 in order to avoid losing the "Bevill" exclusion for the slags and slag tailings. Therefore, a domestic primary copper smelter would be inclined to either reject such shipments or levy a heavy surcharge on the generators to pay for the costs of the demonstration."

We should emphasize any and all regulatory barriers to direct recycling of WWT sludges that this project could eliminate.

2. Project XL Criteria/Environmental Benefits: In the third paragraph under this section, we should refer to the recycled material as being "commodity-like" instead of "a valuable commodity." In the first place, value is relative. In the second place, if we refer to these materials as "valuable," persons less sophisticated in RCRA terminology might wonder what the generator has to pay the recycler if this material is "valuable."

Also, a new paragraph should be added after the fourth paragraph under this section (where we talk about the benefits of reducing or eliminating the landfilling of the non-hazardous copper-bearing wastes). The new paragraph, which would follow this one, could read as follows:

"With regard to landfilling, this project would also produce derivative benefits for the smelters who accept these materials for processing. Because the wastes produced by the PWB industry are rich in copper, relative to virgin copper-bearing ores, to the extent that smelters process such secondary materials in place of virgin ores, the smelters would generate less slags and other wastes to be disposed of because of the reduced concentration of non-recoverable materials."

This benefit is at least as tangible as reductions in mobile source emissions.
cc: J. Jouzaitis
bcc: N. Nosenchuck
J. Willson
J. Iannotti
P. Counterman
L. Nadler
M. Moroukian
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