[Federal Register Volume 62, Number 194 (Tuesday, October 7, 1997)]
[Notices]
[Pages 52334-52337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26532]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-5906-6 ]


Project XL Final Project Agreement

AGENCY: Environmental Protection Agency.

ACTION: Notice of Final Project Agreement with HADCO Corporation and 
Response to Public Comment.

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SUMMARY: The United States Environmental Protection Agency (EPA) is 
announcing the signing of its Final Project Agreement (FPA) with HADCO 
Corporation, New York and New Hampshire, under EPA's Project XL 
program. Through this notice, EPA is also responding to public comments 
received on the draft FPA. As the comments below indicate, many 
suggested changes were incorporated into the FPA.

FOR FURTHER INFORMATION CONTACT: Kenneth Rota, EPA Region I, (617) 565-
3349; Jim Sullivan, EPA Region 2, (212) 637-4138; or Lisa Hunter, EPA 
Headquarters, (202) 260-4744.

SUPPLEMENTARY INFORMATION:

Background:

    HADCO, EPA, the New Hampshire Department of Environmental Services 
(NH DES), the New York State Department of Environmental Conservation 
(NYS DEC) signed an agreement applicable to HADCO's facilities in New 
Hampshire and New York under EPA's ``Project XL'' initiative.
    HADCO is one of the first companies accepted into EPA's Project XL 
program. EPA created Project XL in 1995 as an initiative providing 
regulatory flexibility for industry to achieve environmental 
performance that is superior to what would be achieved through 
compliance with existing and reasonably anticipated future regulations. 
The HADCO FPA was developed by EPA staff in Regions I, II and its 
Headquarters, the NH DES, the NYS DEC, and HADCO Corporation (``the 
parties''). The FPA is the document that memorializes the parties 
intentions concerning Project XL for the HADCO facilities in Owego, NY, 
Hudson, NH, Derry, NH and Salem, NH.
    This XL project concerns the classification under RCRA Subtitle C 
of wastewater treatment (WWT) sludge generated from printed wire board 
manufacturing facilities (SIC 3672). Presently this WWT sludge is 
classified as a listed hazardous waste, having the waste code F006, 
pursuant to regulations promulgated under the Resource Conservation and 
Recovery Act (40 CFR 261.31(a)). Because of this hazardous waste 
designation, HADCO, and others in the PWB industry, must currently ship 
this waste to a separate facility licensed to handle hazardous wastes 
before it can be reclaimed. The project seeks to test whether (a) 
classifying the WWT sludge generated by HADCO as an F006 waste pursuant 
to Subtitle C is not necessary to protect human health and the 
environment, (b) the WWT sludge can be safely reclaimed without all of 
the strict regulatory controls imposed by RCRA Subtitle C; and (c) a 
conditional delisting or solid waste variance will yield substantial 
economic and environmental benefits.
    The HADCO FPA details a procedure through which HADCO will 
extensively test its sludge generated from the treatment of wastewater 
associated with circuit board manufacture. This data will be reviewed 
by EPA, NH DES and NYS DEC, in order to determine if such data supports 
removal of the sludge from regulation as a hazardous waste, as

[[Page 52335]]

defined in RCRA. If this determination can be made, off-site treatment 
would no longer be required prior to reclamation. Such a determination 
by EPA, NH DES, and NYS DEC is wholly contingent upon HADCO shipping 
the sludge off-site for reclamation of copper contained in the sludge. 
The four (4) HADCO facilities that are involved in this project 
collectively generate approximately 600 tons per year of this sludge.
    HADCO has agreed to direct all of its cost savings realized towards 
the reclamation of non-hazardous copper containing dusts that are land 
filled currently (or other pollution prevention activities). If HADCO 
does not substantially reduce the amount of copper dusts currently land 
filled, the project may be terminated. HADCO must also consider the 
installation of sludge driers to reduce sludge volume at its New 
Hampshire facilities, if feasible.
    This draft FPA provides an overview of the parties' intentions 
under the XL agreement. The parties to the agreement have considered 
public comments received during a 30-day public comment period that 
began January 23, 1997 (as noticed at 62 FR 3508, January 23, 1997) and 
at an informal public hearing held at the HADCO facility located in 
Owego, New York on February 12, 1997. After considering these comments, 
the parties modified the agreement as necessary. The FPA is not legally 
binding, but states the plans and intentions of the parties regarding 
the project. It is not a rule or other final agency action; public 
notice and opportunity for comment were provided as a matter of EPA 
policy.
    In addition to the EPA contacts listed in the section entitled For 
Further Information Contact, above, questions concerning Project XL and 
the HADCO project may also be directed to: Ken Marschner, NH DES, (603) 
271-2943, Mark Moroukian, NYS DEC, (518) 457-2553, or Lee Wilmot, HADCO 
Corporation, (603) 896-2424. General information about Project XL may 
be obtained by accessing EPA's internet site for Project XL, at http://
www.epa.gov/Project XL. A copy of the HADCO FPA is posted at this 
location.

Agency Response to Comments

    The Agency received written public comments from five interested 
parties. Additionally, on February 12, 1997, oral comments were 
received and discussed during an informal public hearing held at the 
HADCO facility located in Owego, New York. The notable comments are 
listed below, along with the Agency's response. The comments received 
are as follows:

1. Use of Atlantic States Legal Foundation (``ASLF'') Offices as a 
Depository for the Project Records

    ASLF suggested that either the NY DEC regional office in Syracuse 
or its own offices in Syracuse be used a repository for the records 
generated by this project, including all raw data. ASLF notes that at 
present, the closest depository to its office is 75 miles away in 
Owego. ASLF notes that it cannot actively participate unless the 
information is made available at a more convenient location.
    Response: The ASLF Syracuse office will be used as an additional 
depository. Records kept at this office will be available to the public 
on terms similar to those of other repositories.

2. Use HADCO's Cost Savings to Enable Stakeholders to Participate More 
Actively

    One commenter suggested that HADCO should have to use some of its 
cost savings to enhance the stakeholders' ability to participate.
    Response: According to HADCO's current projections, its initial 
cost savings will not be very substantial. For this project to provide 
tangible environmental benefits, those savings must be channeled into 
copper dust reclamation at a minimum. EPA believes that since all data 
and any portions of the record will be made available to any 
stakeholder upon request, there is no imminent need to require HADCO to 
channel its cost savings to enhance stakeholder participation.
    EPA believes that substantial stakeholder participation is ensured 
because all parties are available to discuss the project via telephone 
or through correspondence. In addition, any stakeholder can participate 
in meetings through telephone hookups provided by HADCO, if he cannot 
afford the time and expense to attend a meeting in person.
    Thus far, three stakeholder meetings have been held at HADCO's 
Derry, New Hampshire facility. Two stakeholder meetings and one public 
hearing have been held at HADCO's Owego, New York facility. The public 
hearing was advertised in the local newspapers and through radio 
announcements. Throughout the FPA development process, drafts of the 
FPA and other supporting information were made readily available. The 
parties have always stressed that any specific information or data can 
be made available upon request. In addition, the FPA, as revised 
includes five local repositories for this project's relevant records; a 
requirement to mail the FPA, executive summaries of the annual reports 
(``executive summaries'') to the interested stakeholders; posting of 
the final FPA (as signed) and executive summaries on the HADCO's world 
wide web page; a requirement to hold additional on-site stakeholder 
meetings with those stakeholders who request meetings to review project 
progress; and the filing of press releases at critical junctures. EPA 
believes that the FPA provides ample opportunity and resources to 
ensure adequate stakeholder support. In addition, most of the 
participating stakeholders agree with this assessment.

3. Dust Reclamation

    One commenter noted that Section VI.C. of the FPA does not require 
HADCO to carry out dust reclamation in the most environmentally 
beneficial manner. The commenter suggests that there is no reason why 
HADCO should not be required to do something better with these dusts 
regardless of what happens to the sludge. The commenter suggests the 
removal of the second sentence in paragraph 29 to address this issue.
    Response: The inclusion of this suggestion would provide no 
incentive for HADCO to participate in this project. According to cost 
documentation submitted by HADCO, the copper dust reclamation proposed 
is an expensive undertaking. From HADCO's perspective, the 
implementation of copper dust reclamation would require it to make a 
substantial investment.
    The potential grant of regulatory relief provides HADCO with an 
incentive to make such an investment. Current State and Federal laws 
and regulations do not require that copper drilling and edging dusts be 
recycled. These dusts are currently land filled. As such, no legal 
mechanism currently exists that requires HADCO to handle this waste in 
a more environmentally beneficial manner. However, through proper 
implementation, this agreement, and any resulting grant of regulatory 
flexibility, can ensure better management of this waste stream. 
Therefore, if regulatory relief is granted, EPA believes that the 
project is environmentally superior to what would occur if the project 
did not proceed. If the Agencies determine that HADCO's WWT sludge is 
eligible for a conditional delisting or a solid waste variance, the 
Agencies will only grant such relief if HADCO uses its cost savings to 
recycle those copper dusts (or implements an acceptable pollution 
prevention activity in the alternative). For these reasons, the

[[Page 52336]]

second sentence of paragraph 29 in the draft version of the FPA will 
remain.

4. HADCO Should Complete an Enhanced Pollution Prevention Survey

    One commenter suggested that the parties add another section to the 
FPA that requires HADCO to complete an enhanced pollution prevention 
(``P2'') analysis. The commenter also notes that HADCO has had some 
success implementing P2 under EPA's 33/50 program; however, HADCO 
should be required to expand its P2 efforts and examine the entire 
waste stream and explore P2 options.
    Response: HADCO has already achieved significant success 
implementing P2. While further P2 is always desirable, and EPA 
understands that HADCO will continue exploring further waste reduction 
methods, EPA believes that the project already provides superior 
performance for the reasons discussed above, and that adding further 
conditions to the project would no longer make it attractive enough for 
the company to participate.

5. Uses of Pollution Prevention Methods Should be Encouraged

    The same commenter later specifies that he has no objection to 
recycling drilling and edging dusts and reclaiming the copper contained 
in such dusts; however, the commenter notes that pollution prevention 
is the preferable solution. The commenter believes that HADCO should 
have to demonstrate that there is no P2 alternative before it uses 
reclamation.
    Response: EPA agrees that P2 solutions are always the preferred to 
reclamation solutions. However, as discussed above, EPA believes that 
the project results will be environmentally superior to what would have 
occurred otherwise, and that the additional P2 requirements would make 
it too unattractive for HADCO to continue. In addition, HADCO has 
already invested a substantial amount of time and effort in developing 
a feasible reclamation solution. Nevertheless, the parties have agreed 
to adjust paragraph 29 of the FPA by using language that encourages 
HADCO to identify and implement P2 activities, in addition to or in 
lieu of the reclamation solution. If a P2 activity is not pursued, 
HADCO must implement the dust reclamation program.

6. Reservation of Rights

    One commenter objected to the inclusion of Section X. of the FPA, 
which is entitled ``Reservation of Rights.'' The commenter noted that 
by singling out criminal enforcement authority, the language improperly 
implies that civil enforcement authority is somewhat undermined. The 
commenter was also concerned that this section's language could somehow 
undermine citizen suit viability.
    Response: EPA agrees, and the parties have agreed to strike this 
section. Since the FPA is not an enforceable document, there is no need 
to include a specific reservation of rights. EPA agrees the language of 
this section could be read to improperly imply that entry of the FPA 
affects civil enforcement authority for EPA, the State Agencies and 
concerned citizens, which was not the parties' intent. Similarly, the 
deletion of this section from the FPA should in no way be understood to 
infer or imply that the Agency is relinquishing its authority to 
respond in any of the situations referred to in the now-deleted section 
reserving the Agency's rights. Further, any rules promulgated as a 
result of this project will be fully enforceable by EPA, State 
Agencies, or the public.

7. Specifically Identify Each Party's Obligations Under the FPA

    One commenter noted that much of the wording of the FPA is 
confusing. The commenter noted that Section VI, in particular, 
addresses a number of unrelated subjects and is difficult to follow. 
The commenter suggested that the FPA use a structure where the 
different parties' obligations were ``spelled out.''
    Response: EPA agrees that some portions of the FPA require 
clarification, and the parties have agreed to make some limited 
changes. In response to this comment, a few portions of the FPA have 
been reworded to further clarify each party's obligations. Each party 
is acutely aware of its obligations under the FPA. For the most part, 
the parties' obligations are listed in a chronological order. For 
example, the sampling program and analyses precede the section 
regarding federal and state rulemaking implementation. Approval of 
Reclamation Facilities logically follows the rulemaking provisions.
    With regard to Section VI of the FPA, which is entitled 
``Verification of Environmental Benefits,'' the parties believe that 
each subject included under that section deals with a different facet 
of demonstrating the environmental benefits that result from this 
project. Additional language was added to each subsection to emphasize 
this connection.

8. The FPA Creates a Preference for Reclamation at Primary Copper 
Smelters

    Response: One commenter noted that any relief from classification 
of HADCO's F006 as hazardous waste should be available regardless of 
whether the waste is shipped to a primary smelter, or to an 
intermediate processor. Specifically, this commenter objected to the 
sentence in paragraph 24 of the proposed FPA that stated:

    * * *  The primary recipients of HADCO's sludges will be primary 
copper smelters, where the sludge will comprise a feedstock 
substitute for natural ore or other recycled product streams. 
Alternative reclamation processes will require prior approval by the 
EPA and relevant State Parties.

    In response, EPA wishes to make clear that no final decision as to 
the precise conditions of any variance or delisting has been made at 
this time (nor, since the FPA has no legal or regulatory effect, could 
such a decision be made until final action is taken on a variance or 
delisting). Accordingly, the sentence referred to by this commenter has 
been replaced with the statement that:

    HADCO will request approval by the EPA and relevant State 
Parties, prior to the shipment of its sludge to such facility. If 
EPA and the relevant State Parties reject HADCO's request for 
approval because the shipment of the WWT sludge to such reclamation 
facility would not foster the goals of this project, this project 
will be terminated in accordance with the provisions of Sections 
I.E. and V. of this FPA.

    This sentence makes clear that EPA and the relevant states will 
require, as a condition for participating in Project XL, that HADCO 
must request and obtain approval from EPA and the relevant states for 
any facility to which it wishes to ship waste for which a variance or 
delisting has been granted. EPA and the states have reserved this right 
in order to ensure that the goals of the project are furthered--
specifically, that the proposed arrangement is environmentally superior 
and represents an approach that warrants investigation as a potentially 
transferable regulatory option. To date, HADCO's proposal has been to 
authorize shipment to a direct recycler, and having studied this 
proposal in depth, EPA and the States both believe that such shipment 
would further the above goals. EPA and the states have not, however, 
evaluated other specific options at this time.

9. The Sampling and Analyses Plan Should Include Additional Organic 
Analyses

    One commenter stated that the organic constituent sampling is not 
adequate and that more complete data on the organic content are 
required to ascertain whether HADCO's F006 sludge should be regulated 
for factors

[[Page 52337]]

other than those related to the original listing and to also render a 
``toxics along for the ride'' assessment of the proposed recycling 
activity. The commenter suggested that additional organic constituents 
may originate from materials used by HADCO in the course of its 
manufacturing process. This commenter suggested that EPA conduct a 
rigorous review of all materials used by HADCO at its facilities or 
require a broader sampling of organic chemicals.
    Response: EPA does not believe that HADCO's sludge poses any 
significant risks from volatile organic compounds based upon prior 
inspections conducted by EPA at HADCO and EPA's prior evaluations of 
waste analyses conducted by the company on its sludge and other waste 
streams. HADCO has also conducted a corporate phase out of solvents 
such as methylene chloride from its manufacturing process since the 
time of EPA's inspection of the facility. However, volatile organic 
compound testing conducted by HADCO for its wastewater effluent has 
detected trace amounts of some volatile organic solvents in the parts 
per billion range. Therefore, EPA believes this commenter does raise 
valid concerns about the potential for volatile organic compounds that 
could be present in the waste which is a reasonable assumption.
    EPA has reassessed its sampling protocol and agrees to require 
additional organics testing on the F006 sludge. Based on a review of 
the types of compounds previously identified by EPA, the following 
analytical procedures will be included in the testing protocol: Method 
8240B (volatile organics), Method 8250A (semi-volatile organics) and 
Method 8315 (carbonyl compounds).

10. Call for Additional Notice and Comment

    A commenter identified the lack of a formal public notice and 
comment period in the FPA if a solid waste variance is selected as the 
most appropriate relief mechanism. The commenter felt that EPA should 
expressly provide for the same level of participation under either a 
conditional delisting or solid waste variance process to maintain the 
transparency of the XL process.
    Response: EPA agrees with this comment and EPA will post notice in 
the Federal Register for all interested parties and stakeholders if a 
solid waste variance is selected. Such Federal Register notice would 
have no legal effect, per se, since the variances would be effectuated 
under state law. The notice would simply provide another means to alert 
stakeholders to a significant milestone in this project's development.
    If a variance is pursued in New York, the applicable rules provide 
ample opportunity for notice and comment With reason, a commenter may 
request that NYSDEC hold a legislative public hearing to listen to oral 
comments. After evaluating public comment NYSDEC would render a final 
determination.

11. Time Frames for the Agencies' Data Review Are Limited

    A commenter also identified the time frames listed in the FPA as 
extremely short and expressed concern that EPA would not be able to 
conduct an adequate review of this project.
    Response: EPA does not consider the time frames set out in the FPA 
to be binding for any review or decisions that the Agency must make in 
the course of this project. EPA and HADCO have agreed to use the dates 
identified in the FPA as target dates. Should EPA fail to meet one of 
these target dates, HADCO would not obtain a conditional delisting or 
solid waste variance by default. Conversely, should HADCO fail to 
submit information by a targeted date, this project would not terminate 
by default.

12. Reclamation Options

    During the public hearing, one participant asked whether there were 
procedures other than smelting that can be used to extract the copper 
from HADCO's sludge.
    Response: Copper can be extracted from different media by a variety 
of physical separation processes, but that extricated copper would 
generally be sent to a high temperature furnace, such as a smelter, to 
remove entrained or bound impurities. The copper could then be purified 
and formed into a commercial grade ingot, which would maximize the 
reclaimed copper's future uses.

13. Chemicals Used at the HADCO Facilities

    During the public hearing, one participant asked if chemicals used 
in the process could be identified and screened to improve sludge 
quality.
    Response: EPA has reviewed HADCO's Material Safety Data Sheets 
(`MSDSs') which identify all chemicals used in their process and 
believes that the substitution of ammonium chloride for chrome sulfuric 
acid as an etchant had significantly ``greened'' or reduced the 
toxicity of the WWT sludge. Also, as a member of EPA's 33/50 Program, 
HADCO has substituted other less or non-toxic raw materials for 
previously employed toxic materials.

14. If Data Exhibit Hazardous Characteristics

    During the public hearing, one participant asked whether the Agency 
would terminate the project if HADCO's sludge exhibited a 
characteristic of a hazardous waste (e.g., the toxicity characteristic 
for lead).
    Response: EPA believes that the project could continue, but that it 
could impact the type of relief sought by HADCO. This may not be a 
significant issue if a variance from classification as a solid waste is 
pursued because the variance primarily investigates the degree to which 
the reclaimed material is like an analogous raw material. However, such 
circumstances would preclude a traditional delisting since delisting is 
based on inherent risk associated with the material. Nevertheless, the 
conditional delisting sought by HADCO remains an option, depending on 
degree of sludge toxicity.

15. Potential for Transferability of the Project

    During the public hearing, one participant inquired about the 
transferability of the project.
    Response: As indicated in Appendix A of the draft Final Project 
Agreement, the Agency believes the proposal may be transferable to 
other PWB manufacturers not using chrome-based etchants. However, the 
specific relief that may be provided when this project is implemented 
is not being made more generally available at this time. Other 
manufacturers may continue to use usual processes for delisting their 
sludge or seeking a variance from classification of a sludge as solid 
waste.

16. Eligible Smelters

    During the public hearing, one participant asked whether a domestic 
smelter could receive HADCO's sludge.
    Response: EPA notes that the sludge could be received by any 
domestic primary smelter which had successfully demonstrated, in 
accordance with 40 CFR 266.112, that the properties of its residues 
(e.g., slag or slag tailings) were not adversely impacted by the co-
processing of hazardous waste. If the regulatory relief sought in this 
project is granted, then HADCO's sludge could be accepted by any 
primary smelter.

    Dated: September 30, 1997.
Christopher Knopes,
Acting Director, Project XL.
[FR Doc. 97-26532 Filed 10-6-97; 8:45 am]
BILLING CODE 6560-50-P