1
ENVIRONMENTAL
PROTECTION
AGENCY
RESPONSE
TO
PUBLIC
COMMENTS
ON
THE
PROPOSED
VARIANCE
FOR
WORLD
RESOURCES
COMPANY
Summary
of
Proposal
and
Response
to
Comments
40
CFR
260.30
provides
that
the
EPA
Administrator
may
grant
a
variance
from
the
classification
of
solid
waste,
on
a
case­
by­
case
basis,
for
materials
that
have
been
reclaimed
but
must
be
reclaimed
further
before
recovery
is
completed.
Such
a
variance
generally
is
contingent
upon
the
material
resulting
from
the
initial
reclamation
being
"commodity­
like."
When
this
variance
is
effective,
the
concentrates
partially
reclaimed
from
metal­
bearing
sludges
F006
and
F019
that
are
shipped
to
smelters
may
travel
without
a
hazardous
waste
manifest
and
will
not
be
subject
to
any
RCRA
controls
other
than
the
conditions
of
this
variance
(listed
above
in
this
notice).
Incoming
hazardous
waste
received
by
WRC
at
the
Phoenix
facility
is
not
covered
by
the
variance
and
must
be
manifested
and
managed
as
a
hazardous
waste
until
shipped
to
smelters
for
further
reclamation.

EPA's
rules
at
40
CFR
260.31(
c)
specifies
five
criteria
for
evaluating
whether
a
specific
material
qualifies
for
a
"partially
reclaimed
material"
variance
from
the
definition
of
solid
waste.
In
addition,
40
CFR
260.31(
c)(
6)
also
allows
EPA
to
consider
"other
relevant
factors"
when
determining
whether
or
not
to
grant
a
requested
variance
for
materials
that
have
been
partially
reclaimed.
The
criteria
of
40
CFR
260.31(
c)
do
not
constitute
separate
legal
thresholds,
each
of
which
must
be
met
before
EPA
can
grant
a
variance
under
this
regulatory
provision.
Instead,
EPA
must
consider
all
the
criteria
in
their
totality
to
determine
whether
the
partially
reclaimed
concentrate
is
"commodity­
like".
A
strong
demonstration
that
several
criteria
have
been
met
may
outweigh
the
fact
that
an
applicant
is
weak
in
another
area.
Weighing
all
of
the
factors
together,
EPA
has
concluded
that
WRC's
processed
concentrates
are
more
commodity­
like
than
waste­
like,
and
that
it
is
reasonable
to
grant
the
variance.

This
section
sets
out
EPA's
findings,
describes
the
principal
comments
concerning
these
findings,
and
gives
EPA's
responses
to
these
comments.
All
other
comments,
and
the
Agency's
responses,
may
be
found
in
the
record
for
this
rulemaking
(see
RCRA
Docket
Number
F­
2002­
WRCF­
FFFFF).

A.
Degree
of
Processing
The
first
evaluation
criterion
(40
CFR
260.31(
c)(
1))
is
the
degree
of
processing
a
material
has
undergone
and
the
degree
of
further
processing
that
is
required
for
the
material
to
be
rendered
"commodity­
like."
Materials
that
have
undergone
substantial
processing
to
reclaim
valuable
or
recyclable
materials
(but
still
must
undergo
a
degree
of
further
processing)
generally
satisfy
this
criterion.
Materials
that
are
still
substantially
"waste­
like"
and
that
need
a
significant
degree
of
further
processing
or
"treatment"
to
be
rendered
"commodity­
like"
may
not
satisfy
the
evaluation
criterion.
2
One
commenter
stated
that
the
greater
part
of
the
processing
is
accomplished
at
the
smelter
rather
than
at
the
WRC
facility
and
that
WRC
therefore
does
not
meet
the
criteria
for
the
variance.
EPA
agrees
that
this
processing
is
not
technically
complicated.
As
discussed
below,
however,
WRC
has
a
sophisticated
quality
control
program
which
allows
it
to
blend
sludges
to
meet
smelter
specifications.
In
fact,
WRC
has
made
a
very
strong
showing
that
its
processing
adds
substantial
economic
value
to
electroplating
sludges.
It
takes
in
a
material
that
has
little
or
no
market
value
(electroplaters
pay
WRC
to
take
their
sludges)
and
converts
it
into
a
material
that
smelters
will
buy
(see
the
discussion
of
economic
value
in
the
following
section
of
this
notice).
WRC
also
made
a
strong
showing
that
it
meets
the
fourth
criterion,
relating
to
a
guaranteed
end
market
for
its
reclaimed
material.
Weighing
all
the
factors
together,
EPA
has
concluded
that
the
amount
of
processing
performed
by
WRC
is
sufficient
to
meet
this
criterion.

Another
commenter
said
that
evaporation
and
blending
represent
the
most
minimal
form
of
waste
handling
and
should
not
be
interpreted
to
constitute
significant
value­
added
processing.
This
commenter
stated
that
any
electroplater
would
be
able
to
obtain
a
variance
for
hazardous
waste
that
has
been
evaporated
in
a
90­
day
or
other
exempt
unit,
and
any
smelter
would
be
able
to
accept
it.
Another
commenter
speculated
that
other
90­
day
generators
would
dewater
other
wastes
and
claim
partially­
reclaimed
variances.

EPA
does
not
agree
that
any
electroplater
would
be
able
to
obtain
a
variance
to
dry
sludges
in
onsite
units.
Although
WRC's
mechanical
methods
for
sludge
drying
and
blending
may
be
technically
simple,
the
company
has
a
sophisticated
quality
control
program
used
to
ensure
that
the
sludge
from
each
generator
meets
contract
specifications,
and
that
the
partially
reclaimed
material
has
also
been
formulated
to
meet
purchaser
specifications.
The
process
involves
a
chemical
analysis
laboratory
program
and
computer
software
programs
which
yield
over
200,000
test
results
yearly
to
provide
needed
operational
information
to
control
WRC's
recycling
activities.
These
specifications
and
analyses
also
played
a
role
in
EPA's
decision
that
the
sludges
undergo
meaningful
processing
at
WRC.
EPA
would
not
be
likely
to
grant
variances
to
electroplaters
or
other
waste
generators
who
could
not
show
similarly
strong
indicators
that
they
engaged
in
significant
processing
to
create
"commodities."

One
commenter
stated
that
using
the
value
of
services
to
generators
as
a
measure
for
determining
the
degree
of
processing
of
a
waste
material
does
not
appear
in
any
regulation
and
is
not
discussed
in
any
of
the
Agency's
correspondence
or
guidance
on
this
subject.

EPA
did
not
consider
the
value
of
services
that
WRC
provides
to
generators
in
its
evaluation
of
this
criterion.
Although
WRC
urged
EPA
to
take
into
account
the
amount
of
money
it
spends
to
process
each
ton
of
sludge,
and
although
it
is
true
that
WRC
does
derive
some
of
its
profit
from
fees
paid
by
generators,
EPA's
decision
is
based
on
the
fact
that
WRC's
activities
make
its
concentrate
marketable
to
smelters
as
discussed
elsewhere
in
this
notice
(see
section
B
below).

B.
Economic
Value
of
Material
That
Has
Been
Reclaimed
The
second
evaluation
criterion
(§
260.31(
c)(
2))
requires
an
evaluation
of
the
economic
value
of
the
material
that
has
been
reclaimed,
but
must
be
further
reclaimed.
This
criterion
is
also
3
useful
in
determining
whether
a
material
is
indeed
"commodity­
like."
To
satisfy
this
criterion,
petitioners
must
demonstrate
that
the
initial
reclamation
process
increases
or
contributes
to
the
value
of
the
material
and
that
there
is
a
market
for
the
reclaimed
material.
Petitioners
generally
can
demonstrate
that
this
factor
is
met
by
providing
sales
information,
including
quantities
of
the
material
sold,
additional
demand
for
the
material
(if
any),
and
the
price
paid
for
the
material
by
purchasers.

In
the
proposal,
EPA
stated
that
the
processed
concentrate
that
WRC
produces
has
positive
economic
value
and
is
purchased
by
smelters.
EPA
based
this
conclusion
primarily
on
sales
data
provided
by
WRC
for
January
1994­
June
1995.
EPA
found
that
this
data
showed
that
WRC
in
fact
sold
its
partially
reclaimed
material
to
smelters
and
received
a
positive
economic
value
(taking
into
account
average
transportation
costs).

One
commenter
stated
that
WRC
and
EPA
have
mis­
characterized
the
"economic
value"
of
the
concentrate.
This
commenter
asserted
that
the
true
economic
value
of
metal­
bearing
sludges
is
determined
by
the
value
of
the
metals
in
the
material
at
a
given
time,
not
by
how
much
is
spent
to
process
the
material
or
how
much
the
processor
charges
for
the
material.
The
commenter
asserted
that,
on
this
basis,
WRC's
process
adds
no
value,
because
the
amount
of
the
metals
in
the
sludges
does
not
change.

EPA
agrees
that
the
presence
of
the
valuable
metals
in
metal­
bearing
sludges
is
one
factor
to
be
used
in
determining
whether
WRC's
partially
reclaimed
concentrate
is
commodity­
like.
However,
EPA
does
not
agree
that
WRC
must
increase
the
amount
of
metal
to
add
value
to
the
materials
that
it
processes.
There
are
other
ways
to
make
these
metal­
bearing
materials
more
valuable.
WRC's
services
in
aggregating
sludges
into
larger
volumes
which
smelters
are
willing
to
accept
and
in
custom­
blending
sludges
to
meet
specific
smelter
specifications
add
significant
value.
The
fact
that
WRC
is
able
to
sell
processed
concentrates
to
smelters
(while
few
electroplaters
are
able
to
persuade
smelters
to
accept
unprocessed
sludges,
and
most
who
do
have
to
pay
smelters
to
accept
their
sludges),
demonstrates
that
WRC's
services
add
value.

One
commenter
questioned
whether
WRC
would
be
able
to
claim
positive
economic
value
if
it
analyzed
sales
data
for
sludges
that
were
reclaimed
for
common
metals
only.
This
commenter
argued
that
the
economic
value
would
not
be
as
high
if
only
common
metals
were
sold,
instead
of
precious
metals.
Another
commenter
said
that
information
in
the
record
indicated
that
WRC's
concentrate
contained
substantially
lower
levels
of
recoverable
metals
than
virgin
concentrates.

In
response
to
these
comments,
Agency
points
out
that
the
regulatory
criteria
for
granting
a
variance
under
40
CFR
260.30(
c)
do
not
require
the
Agency
to
distinguish
between
the
common
metals
and
precious
metals
contained
in
WRC's
partially
reclaimed
concentrate,
if
in
fact
the
concentrate
contains
both
kinds
of
metals.
The
Agency
also
disagrees
that
recoverable
levels
for
many
metals
are
lower
in
WRC's
concentrate
than
those
found
in
virgin
concentrate.
If
in
some
cases
the
levels
of
metals
are
lower,
smelters
are
nevertheless
willing
to
pay
for
the
concentrates,
demonstrating
that
they
have
positive
economic
value.

The
commenter
also
pointed
out
that
a
significant
portion
of
WRC's
revenue
comes
from
fees
it
charges
generators,
as
opposed
to
the
revenue
received
for
selling
its
concentrate
to
4
smelters.
The
commenter
believed
that
this
fact
is
indicative
of
sham
recycling.
If
the
commenter
means
that
WRC's
operation
is
a
"sham",
the
issue
is
not
relevant
to
this
variance.
The
sham
recycling
criteria
help
EPA
distinguish
facilities
that
engage
in
recycling
that
is
not
subject
to
RCRA
regulation
from
facilities
that
engage
in
waste
treatment
that
is
subject
to
RCRA.
WRC
is
not
claiming
that
its
operation
is
exempt
from
RCRA;
therefore,
the
sham
recycling
criteria
do
not
apply.
Similarly,
the
commenter
may
be
suggesting
that
smelters
using
WRC
concentrates
are
engaged
in
waste
treatment
rather
than
recycling.
EPA
does
not
believe
that
the
fees
generators
pay
to
WRC
are
relevant
to
the
legitimacy
of
the
smelters'
processes.
The
argument
might
have
relevance
if
WRC
paid
smelters
to
take
its
concentrates;
however,
the
record
shows
that
WRC
sells
its
concentrates
to
smelters.

Finally,
the
commenter
may
be
suggesting
that
WRC's
process
adds
so
little
value
to
the
sludges
that
no
variance
is
warranted,
so
that
WRC
concentrates
should
continue
to
be
regulated
as
hazardous
wastes
during
transportation
and
during
storage
at
smelters.
EPA
disagrees.
Data
provided
by
WRC
show
that,
during
1996­
1999,
WRC
made
more
money
from
selling
concentrates
to
smelters
than
from
charging
fees
to
generators.
WRC
received
approximately
$0.59
from
generator
fees
for
every
$1.00
it
received
in
metal
sales
(after
adjusting
generator
fees
to
eliminate
charges
for
optional
transportation
services).

This
commenter
also
stated
that
EPA
should
not
have
used
"average"
transportation
costs
in
assessing
whether
WRC
received
positive
economic
value
for
its
concentrate.
This
commenter
suggested
that
the
Agency
should
require
recordkeeping
and
auditing
of
WRC's
records
to
ensure
that
each
shipment
generates
a
return.
The
commenter
further
suggested
that
EPA
should
assess
the
transportation
cost
of
a
single
trip
for
each
load,
any
administrative
activities
by
the
smelter,
and
smelter
processing
costs.
These
costs
should
then
be
compared
to
similar
costs
for
asgenerated
sludges
shipped
directly
to
smelters.
The
commenter
also
stated
that
EPA
should
determine
monetary
value
to
smelters
of
reducing
sludge
moisture
content
and
blending
sludges
to
meet
smelter
specifications.

In
response
to
these
comments,
the
Agency
notes
that
it
is
not
feasible
to
evaluate
the
profitability
of
each
and
every
shipment
made
by
WRC
to
smelters.
Such
profitability
will
depend
on
several
factors,
such
as
the
concentration
of
metals
in
a
particular
shipment,
the
price
of
the
metals
at
the
time,
and
freight
costs.
We
do
not
believe
that
the
regulatory
criteria
at
40
CFR
260.31(
c)
require
the
Agency
to
examine
all
of
these
factors
with
respect
to
each
shipment.
For
this
reason,
EPA
instead
assessed
the
average
cost
of
transportation
over
the
period
covered
by
the
variance
application.
We
believe
that
such
averaged
costs
are
sufficient
to
help
us
assess
the
economic
value
of
WRC's
concentrate.

EPA
believes
that
the
record
shows
that
smelters
value
the
reduction
of
moisture
content
and
the
blending
of
sludges.
Smelters
will
pay
more
for
WRC's
concentrates,
which
have
undergone
these
steps,
than
they
will
pay
for
sludges
marketed
by
electroplaters
which
have
not
been
dried
and
blended.
Contrary
to
the
commenter's
assertion,
EPA
does
not
need
to
determine
precise
values
for
each
of
these
activities
to
make
a
finding
on
this
issue.
One
commenter
also
stated
that
EPA's
assertion
that
smelters
are
reluctant
to
accept
F006
sludges
directly
from
generators
is
not
supported
in
the
rulemaking
record,
and
that
at
least
one
smelter
takes
"as­
generated"
sludges
directly
from
electroplaters.
In
response,
the
Agency
notes
5
that
we
did
not
intend
to
imply
that
smelters
refuse
to
take
sludges
directly
from
electroplaters.
Rather,
EPA
meant
that
WRC's
concentrates
are
more
attractive
to
smelters
than
sludges
shipped
directly
from
electroplaters.
EPA
believes
that
the
concentrates
are
more
attractive
for
two
reasons.
First,
WRC's
shipments
are
much
larger
than
typical
shipments
from
electroplaters.
For
example,
in
1995
the
average
amount
of
F006
generated
from
an
individual
electroplater
was
120
tons
(see
Regulatory
Impact
Analysis
for
the
Final
Rule
for
a
180­
Day
Accumulation
Time
for
F006
Wastewater
Treatment
Sludges,
USEPA,
Office
Of
Solid
Waste,
January
14,
2000).
During
the
same
year,
WRC
processed
over
16,000
tons
of
F006
and
related
wastes
for
metal
recovery
(see
Hazardous
Waste
Recycling
in
the
United
States:
Summary
Statistics
and
Trends
for
1993­
1997,
USEPA,
Office
of
Solid
Waste,
June
7,
2001,
p.
18).
Larger
shipments
reduce
transaction
costs
for
smelters,
and
smelters
will
penalize
for
smaller
lots
(see
Pollution
Prevention
and
Control
Technology
for
Plating
Operations,
George
C.
Cushnie
Jr.,
1994).
They
also
allow
for
economies
of
scale
in
shipping
and
handling
costs.
Second,
smelter
personnel
contacted
by
EPA
indicated
that
they
believe
that
WRC
more
consistently
meets
specifications
for
metal
content
and
impurities
(see
personal
communication
between
Paul
Borst,
USEPA,
Office
of
Solid
Waste
and
Bob
Sippel,
Vice­
President
for
Recycling,
Noranda
Minerals,
Inc.,
July
22­
24,
1996).

C.
Degree
To
Which
Reclaimed
Material
Resembles
Analogous
Raw
Material
The
third
evaluation
criterion
(40
CFR
260.31(
c)(
3))
is
the
degree
to
which
the
reclaimed
material
is
like
an
analogous
raw
material.
The
partially
reclaimed
material
should
be
similar
to
an
analogous
raw
material
or
feedstock
for
which
the
material
may
be
substituted
in
a
production
or
reclamation
process.
In
addition,
the
partially
reclaimed
material
should
not
contain
significant
concentrations
of
hazardous
constituents
not
found
in
an
analogous
raw
material
and
that
do
not
contribute
to
the
value
of
the
partially
reclaimed
material
when
used
for
its
intended
purpose.

As
explained
in
the
proposal,
EPA
conducted
an
analysis
comparing
levels
of
the
inorganic
constituents
and
cyanide
in
the
processed
concentrates
that
WRC
sells
with
levels
of
constituents
in
virgin
ore
concentrates.
EPA
found
that,
with
the
exception
of
cyanide,
the
levels
of
constituents
in
WRC's
concentrates
are
generally
comparable
to
the
levels
of
constituents
found
in
concentrates
made
from
virgin
ores.
Also,
EPA
considered
data
showing
that
toxic
organic
constituents
are
not
likely
to
be
prevalent
or
present
in
more
than
trace
amounts
in
F006
being
recycled
(see
EPA's
Metal
Finishing
F006
Benchmark
Study,
September
1998,
p.
23,
and
letter
(with
attachment)
from
D.
Daniel
Chandler
of
Browning,
Kaleczyc,
Berry
and
Hoven
to
Paul
Borst,
USEPA,
June
2,
1993)).
To
make
WRC's
concentrate
more
commodity­
like,
EPA
decided
to
limit
the
levels
of
cyanide
that
could
be
allowed.

The
590
ppm
total
cyanide
limit
that
we
proposed
is
the
current
Universal
Treatment
Standard
(UTS)
for
land
disposal
at
40
CFR
§268.48
for
total
cyanide
in
hazardous
wastes
that
are
land
disposed.
This
limit
currently
applies
to
any
WRC
concentrate
that
is
stored
on
the
land
before
smelting.
In
response
to
requests
for
clarification
from
two
commenters,
we
are
today
stating
that
the
limit
refers
to
total
cyanide,
and
we
are
adding
the
test
method
specified
in
40
CFR
268.48.

Some
commenters
did
not
believe
that
the
limit
set
for
cyanide
in
WRC's
concentrate
should
be
590
ppm.
One
commenter
argued
that
EPA
should
limit
cyanides
to
the
amount
6
present
in
analogous
"virgin"
sources
of
metals.
Another
argued
that
the
cyanide
limit
should
be
risk­
based,
and
asserted
that
EPA's
assessment
of
risks
did
not
ensure
protection
of
human
health
and
the
environment.

This
criterion
is
intended
to
help
EPA
distinguish
materials
that
are
waste­
like
from
materials
that
are
commodity­
like.
Where
EPA
finds
a
constituent
at
higher
levels
in
the
partially
reclaimed,
waste­
derived
material,
it
does
not
have
to
conduct
a
risk
assessment
and
impose
a
condition
based
on
limiting
risks
to
human
health
and
the
environment
(as
demonstrated
through
some
type
of
risk
assessment).
Rather,
EPA
need
only
ensure
that
the
constituent
levels
are
commodity­
like.

Limiting
constituent
levels
in
the
partially
reclaimed
material
to
levels
in
analogous
virgin
raw
materials,
as
one
commenter
suggested,
is
an
acceptable
way
to
accomplish
this.
It
is
not,
however,
the
only
way.
In
this
case,
the
analogous
raw
materials
appear
to
have
extremely
low
levels
of
cyanide.
EPA
is
concerned
that
WRC
might
not
be
able
to
reduce
cyanide
levels
in
electroplating
sludges
to
this
level.
EPA,
however,
is
confident
that
WRC
can
meet
the
land
disposal
restriction
level
for
cyanide,
which
currently
applies
while
WRC's
concentrates
are
classified
as
hazardous
wastes.
As
previously
stated,
WRC
makes
strong
showings
for
the
second
and
fourth
criteria
of
the
variance,
causing
EPA
to
conclude
that
its
concentrates
are
commoditylike
Under
these
circumstances,
EPA
finds
the
590
ppm
limit
to
be
sufficient
to
ensure
that
WRC's
concentrates
are
more
commodity­
like
than
waste­
like.

In
spite
of
the
fact
that
it
was
not
legally
required,
EPA
conducted
a
screening
analysis
to
determine
whether
land
storage
of
concentrates
with
cyanides
at
this
level
would
pose
ground
water
risks.
The
analysis
suggested
that
cyanide
concentration
would
not
exceed
the
federal
drinking
water
standard
for
cyanide
at
a
downgradient
drinking
water
well
if
cyanide
underwent
hydrolysis.
The
screening
analyis
did
show
some
potential
for
risk
if
cyanide
did
not
hydrolize.
One
commenter
challenged
EPA's
assumption
that
hydrolysis
was
likely
to
occur.
The
Agency
made
this
assumption
because
the
scientific
literature
shows
that
cyanide
is
often
amenable
to
that
process,
since
it
tends
to
break
down
or
dissociate
if
it
comes
in
contact
with
water
(see
Kollig
P.
Heinz
et.
al,
Environmental
Fate
Constants
for
Organic
Chemicals
Under
Consideration
for
EPA's
Hazardous
Waste
Identification
Projects,
Office
of
Research
and
Development,
USEPA).

Moreover,
the
screening
analysis
is
likely
to
overestimate
risks
for
several
reasons.
EPA
conducted
the
screening
assuming
200
to
300
metric
tons
of
electroplating
sludge
stored
outdoors,
even
though
such
sludge
is
usually
stored
indoors,
with
reduced
likelihood
of
releases
to
groundwater,
and
even
though
volumes
of
concentrate
at
a
single
smelter
at
any
one
time
are
likely
to
be
smaller.
In
addition,
information
available
to
the
Agency
indicate
that
WRC's
metal
concentrate
is
unlikely
to
remain
in
storage
at
a
smelter
for
a
long
period
of
time.
First,
the
cost
and
efficiency
of
the
smelting
process
itself
are
negatively
affected
by
water
content;
therefore,
any
stored
materials
are
used
as
soon
as
possible
to
avoid
inadvertent
moistening
by
rainfall.
Second,
under
the
purchasing
agreement,
the
smelter
must
pay
WRC
by
a
specified
time
after
the
concentrate
is
received,
often
before
the
material
is
fully
unloaded.
This
practice
would
lead
the
smelter
to
assume
the
risk
of
metal
price
changes
if
the
material
is
not
used
promptly.
Consequently,
it
is
difficult
to
conclude
that
the
concentrates
would
pose
unacceptable
ground
water
risk
even
if
hydrolysis
occurred
slowly
or
did
not
occur
at
all.
7
The
Agency
also
notes
that
the
other
conditions
of
this
variance
will
protect
against
air
inhalation
risks
from
cyanide.
For
example,
a
Material
Safety
Data
Sheet
must
accompany
the
concentrate
with
a
notification
that
the
concentrate
may
contain
up
to
590
ppm
cyanide
and
that
low
pH
environments
can
result
in
the
production
of
hydrogen
cyanide
gas.
Moreover,
Department
of
Transportation
regulations
for
hazardous
materials
will
continue
to
apply
to
WRC's
processed
concentrates
even
after
the
RCRA
exemption
takes
effect.
In
addition,
the
Agency
notes
that
WRC
is
not
seeking
a
variance
for
its
own
operations.
Hazardous
waste
regulations
will
continue
to
apply
to
processed
concentrates
held
at
WRC's
facility
One
commenter
questioned
the
validity
of
EPA's
assessment
of
groundwater
risks
for
cyanide,
noting
that
EPA
decided
not
to
propose
an
"exit"
level
for
hazardous
wastes
containing
cyanide
in
the
proposed
hazardous
waste
identification
rule
(HWIR)
due
to
technical
concerns
with
predicting
the
fate
of
cyanide
in
the
environment.
However,
for
this
variance
EPA
did
not
need
to
conduct
a
risk
assessment.
Moreover,
the
technical
difficulties
are
less
important
in
a
simple
groundwater
screening
analysis
than
in
the
complex,
multipathway
analysis
conducted
for
the
HWIR
rule.

Another
commenter
suggested
that
EPA
should
set
a
toxic­
along­
for­
the­
ride
limit
for
the
cyanide
in
incoming
sludges
to
WRC's
facility,
so
that
WRC
would
not
be
able
to
dilute
high
incoming
cyanide
concentrations
to
achieve
specified
concentration
levels
in
the
outgoing
concentrate.

RCRA
regulations
do
not
prohibit
dilution
during
reclamation.
While
dilution
is
impermissible
in
the
LDR
program
to
avoid
a
treatment
standard
(see
40
CFR
Part
268.3
generally),
dilution
is
permissible
when
done
to
facilitate
treatment
(i.
e,
adding
cement
to
stabilize
waste).
The
type
of
dilution
that
may
occur
at
WRC
in
drying
and
blending
is
analogous
to
that
which
takes
place
to
facilitate
treatment,
since
drying
and
blending
makes
metal
concentrates
smelter­
ready
and
amenable
for
high
temperature
metal
recovery.
Whatever
cyanide
dilution
takes
place
in
WRC's
blending
process
is
incidental
to
the
main
purpose
of
the
blending,
which
is
to
ensure
that
the
concentrates
contain
sufficient
metal
content
to
assure
high
process
efficiency
and
limit
contaminant
concentrations
of
tramp
constituents
that
may
interfere
with
the
smelting
process.

One
commenter
thought
the
limit
for
total
organic
hazardous
constituents,
including
cyanides,
should
be
500
ppm,
apparently
because
other
organic
hazardous
constituents
may
be
present
in
sludges
received
by
WRC
and
because
this
value
is
the
cutoff
point
for
determining
whether
a
smelter
is
burning
solely
for
metal
recovery,
and
thus
eligible
for
an
exemption
to
the
current
permitting
rules
for
boilers
and
industrial
furnaces
(BIFs)
(see
CFR
266.100(
c)(
2)(
i)).
Another
commenter
believed
that
even
the
500
ppm
limit
was
not
sufficiently
protective,
because
it
could
create
health
risks
if
burning
were
conducted
improperly,
and
the
limit
was
not
intended
for
use
in
a
delisting
or
a
variance.

EPA
established
a
500
ppm
limit
for
total
organic
constituents
in
secondary
materials
burned
at
smelters
to
distinguish
smelters
engaged
in
metals
recovery
from
smelters
engaged
in
the
treatment
of
hazardous
organic
constituents.
The
limit
is
not
risk­
based.
Moreover,
as
stated
earlier,
EPA
is
not
required
to
ensure
that
the
concentrate
will
pose
low
risks
before
granting
the
8
variance.
However,
EPA
has
also
found
that
unprocessed
electoplating
sludges
typically
contain
very
low
levels
of
organics
(except
cyanide)
that
are
well
below
the
cutoff
point
for
smelter
metals
recovery
(see
EPA's
Metal
Finishing
F006
Benchmark
Study,
September
1998,
p.
23,
and
letter
(with
attachment)
from
D.
Daniel
Chandler
of
Browning,
Kaleczyc,
Berry
and
Hoven
to
Paul
Borst,
USEPA,
June
2,
1993)).
EPA
is
imposing
a
limit
for
cyanide.

Two
commenters
stated
that
EPA
should
evaluate
risks
presented
by
all
toxic
constituents
potentially
present
in
the
waste,
just
as
it
does
when
considering
delisting
requests.
One
of
these
commenters
suggested
that
EPA
should
set
a
"toxics­
along­
for­
the­
ride"
threshold
level
for
each
toxic
constituent
in
each
incoming
load
of
sludge
that
WRC
receives,
and
that
any
level
set
for
toxic
constituents,
including
cyanide,
should
be
risk­
based
rather
than
technology­
based.

In
response,
EPA
notes
that
we
found
no
need
for
limits
on
any
other
constituents
to
demonstrate
that
the
processed
concentrates
are
commodity­
like.
The
relevant
test
is
the
degree
to
which
the
concentrate
resembles
analogous
raw
materials.
To
determine
whether
WRC's
concentrate
is
similar
to
analogous
raw
materials,
we
compared
its
inorganic
constituents
to
inorganic
constituents
found
in
primary
copper
and
nickel
concentrates.
We
concluded
that
cyanide
was
the
sole
hazardous
constituent
that
was
not
present
in
the
analogous
raw
material
that
did
not
contribute
to
the
value
of
the
WRC
concentrate
when
sent
for
metals
recovery.
Moreover,
with
the
exception
of
cyanide,
the
Agency
concluded
that
the
Appendix
VIII
metals
typically
contained
in
WRC's
concentrate
are
similar
to
those
found
in
virgin
ore
concentrates.
In
addition,
we
note
that
commercial
contracts
under
which
smelters
purchase
WRC's
concentrate
typically
specify
limits
on
several
such
metals
(such
as
lead
or
chromium)
to
ensure
that
levels
do
not
interfere
with
the
extraction
process.
As
noted
above,
we
also
found
that
organic
constituents
are
not
found
in
significant
amounts
in
unprocessed
electroplating
sludges.
Therefore,
EPA
does
not
need
to
set
limits
for
other
constituents,
either
to
ensure
that
WRC's
concentrates
are
commodity­
like
or
to
ensure
that
WRC
does
not
engage
in
sham
recycling.

Some
commenters
suggested
that
EPA
should
place
limits
on
Appendix
VIII
metals
in
incoming
sludges
at
the
WRC
facility,
at
least
for
those
metals
in
high
concentrations
that
are
not
recovered
and
have
no
"ore
equivalency"
levels,
such
as
chromium,
cadmium
or
zinc.
One
commenter
argued
that
recoverable
metals
could
also
be
toxics­
along­
for­
the­
ride
if
the
receiving
smelter
does
not
in
fact
recover
all
of
them.

The
Agency
does
not
believe
that
such
a
limitation
is
necessary
to
ensure
that
WRC's
concentrates
resemble
virgin
ores.
We
did
not
find
metals
that
are
not
present
in
virgin
ores.
We
note
that
there
are
Appendix
VIII
metals
at
high
concentrations
in
the
analogous
primary
copper
and
nickel
concentrates
which
are
not
recovered.
Arsenic
levels
in
primary
copper
concentrates
are
often
present
in
levels
as
high
as
3000
ppm
and
are
not
recovered.
D.
Extent
To
Which
End
Market
is
Guaranteed
Under
the
fourth
evaluation
criterion
(40
CFR
260.31(
c)(
4)),
petitioners
must
demonstrate
that
an
end
market
for
the
partially
reclaimed
material
is
guaranteed.
Petitioners
must
demonstrate
that
there
is
a
secure
demand
and
long­
term
market
for
the
partially
reclaimed
material
and
that
the
chance
of
large
quantities
of
the
material
being
stockpiled
due
to
insufficient
demand
is
unlikely.
If
a
petitioner
cannot
demonstrate
that
the
material
enjoys
a
consistent
level
of
demand,
with
reasonable
expectations
for
the
same
or
greater
level
of
demand
once
a
variance
9
is
granted,
there
may
be
risk
of
the
material
being
stockpiled
or
stored
for
a
significant
period
of
time
in
containers
or
other
storage
units
that
do
not
have
to
meet
RCRA
Subtitle
C
storage
standards.
Such
situations
may
pose
significant
risks
to
human
health
or
the
environment.

In
the
proposal,
EPA
found
that
WRC
demonstrated
that
it
has
multi­
year
contracts
for
the
sale
of
its
processed
concentrates
with
at
least
four
smelters,
and
that
these
smelters
have
excess
capacity
exceeding
WRC's
production
capabilities.
The
record
also
shows
that
the
smelters
have
been
customers
for
significant
periods
of
time;
contracts
with
one
smelter
extend
back
to
the
1970's.
Even
the
most
recent
customers
have
had
contracts
since
the
middle
1990's.
At
the
same
time,
however,
to
help
ensure
that
concentrates
meet
their
end
market,
EPA
proposed
to
require
that
WRC
ship
concentrates
only
to
metal
smelting
facilities,
that
WRC
comply
with
DOT
regulations
regarding
shipments
of
hazardous
materials,
and
that
WRC
document
that
all
shipments
reached
their
designated
destination.
To
assist
in
ensuring
compliance
with
these
shipping
conditions,
EPA
also
proposed
to
require
WRC
to
provide
an
annual
audit
to
the
Arizona
Department
of
Environmental
Quality
(ADEQ).
The
annual
audit,
conducted
by
an
independent
third
party,
must
certify
that
all
shipments
of
WRC's
partially
reclaimed
concentrate
were
made
to
metal
smelting
facilities,
were
documented
and
shipped
in
accordance
with
all
applicable
U.
S.
Department
of
Transportation
regulations,
and
were
documented
to
have
reached
the
designated
destination.
EPA
is
retaining
these
conditions
for
the
final
variance.

One
commenter
thought
that
there
was
insufficient
information
in
the
proposal
and
in
EPA's
supporting
analyses
to
fully
evaluate
the
underlying
economics
of
WRC's
business.
This
commenter
suggested
that
at
a
minimum
(emphasis
supplied
in
the
original
comments)
EPA
should
conduct
an
analysis
covering
the
entire
17
years
of
WRC's
operations,
reviewing
all
contracts
over
this
time
period,
the
primary
and
secondary
metals
market
over
the
same
period,
and
any
other
regulatory
or
enforcement
actions
EPA
or
authorized
states
have
taken
with
respect
to
F006
and
F019
recycling,
including
all
prior
interpretations
of
the
legitimacy
of
F006
and
F019
recycling
activities.
In
particular,
the
commenter
stated
that
EPA
should
analyze
WRC's
17
year
history
to
determine
if
there
had
ever
been
a
period
when
metals
prices
were
so
low
that
the
concentrate
could
not
be
sold.
This
commenter
also
felt
that
EPA's
position
was
weakened
by
the
fact
that
WRC
has
contracts
with
foreign
smelters.
Another
commenter
expressed
similar
concerns
about
fluctuations
in
metal
prices,
fearing
bankruptcies,
abandonments,
and
"stockpiling"
when
minerals
become
less
valuable.

In
response,
EPA
notes
that
the
considerable
amount
of
data
submitted
by
WRC
and
available
to
the
Agency
from
other
sources
have
provided
an
accurate
view
of
the
nature
of
F006
recycling
in
general
and
of
WRC's
operations
in
particular.
This
information
has
been
sufficient
to
allow
the
Agency
to
evaluate
whether
WRC's
concentrate
meets
the
regulatory
criteria
of
40
CFR
§260.31(
c).
The
Agency
also
believes
that
the
existence
of
past
fluctuations
in
commodity
prices
should
not
be
a
decisive
or
even
strong
consideration
in
evaluating
variance
applications
under
40
CFR
§260.30(
c),
especially
since
price
fluctuations
for
these
materials
tend
to
be
the
rule
rather
than
the
exception.
In
addition,
as
noted
above,
WRC
has
numerous
multi­
year,
longterm
contracts
in
place,
indicating
that
WRC's
processed
sludges
remain
valuable
to
smelters
over
time,
even
with
changes
in
the
values
of
the
metals
they
contain.
10
Moreover,
we
note
that
the
variance
does
not
apply
to
materials
held
at
WRC
prior
to
shipment.
Storage
there
must
comply
with
Subtitle
C
requirements.
These
requirements
adequately
address
threats
posed
by
materials
"stockpiled"
at
WRC.
With
regard
to
the
risks
that
a
smelter
might
accept
a
shipment,
but
stockpile
it
at
the
smelting
facility
during
a
"down"
market,
we
note
that
these
materials
are
blended
to
specific
smelter
specifications,
and
smelters
pay
to
receive
them
(often
before
the
materials
are
processed).
It
therefore
seems
more
likely
that
smelters
will
use
them
rather
than
store
them
for
extended
periods
of
time.
These
considerations
are
true
for
both
domestic
and
foreign
smelters.

The
Agency
notes
that
in
the
proposal,
the
introductory
paragraph
to
the
variance
language
included
a
reference
to
metal
concentrate
sold
to
"smelters
or
other
metal
recovery
facilities",
although
the
proposed
numbered
variance
conditions
referred
only
to
"smelters"
(see
64
FR
68968
at
68972).
Today's
final
notice
limits
the
variance
to
WRC's
metal
concentrate
that
is
sold
to
smelters,
since
the
available
data
submitted
in
support
of
the
variance
concerns
sales
to
smelters
rather
than
to
other
kinds
of
facilities.

One
commenter
opposed
the
requirement
for
an
independent
annual
audit
as
an
unnecessary
expense
and
believed
a
statement
signed
by
WRC
would
suffice.
Two
commenters
believed
that
the
audit
should
contain
additional
requirements,
such
as
recordkeeping
and
evaluations
of
the
management
of
WRC's
concentrate
at
smelters,
and
one
commenter
suggested
an
audit
every
four
months
during
the
first
two
years.
Some
commenters
were
concerned
that
an
independent
audit
would
replace
the
role
of
a
regulatory
agency
inspection.

In
response
to
these
comments,
EPA
notes
that
the
conditions
of
all
variances
under
40
CFR
260.30
are
site­
specific
in
nature.
This
audit
was
proposed
as
a
mutual
agreement
between
ADEQ
and
WRC
to
satisfy
both
parties'
concerns
about
compliance
with
the
terms
of
the
variance.
An
independent
annual
audit
ensures
an
objective
review
of
the
company's
operations,
and
provides
information
on
how
the
material
is
handled
after
partial
reclamation.
However,
the
fact
that
an
audit
is
required
as
a
condition
of
this
variance
does
not
mean
that
similar
audits
would
be
considered
appropriate
for
all
such
variances.
The
Agency
does
not
believe
that
the
additional
requirements
for
increased
recordkeeping,
evaluation
at
smelters,
and
more
frequent
review
suggested
by
some
commenters
are
necessary
to
help
regulators
determine
whether
WRC
has
complied
with
these
variance
conditions.
EPA
also
notes
that
nothing
in
this
variance
would
legally
affect
or
preclude
inspections
or
review
of
WRC's
operations
by
the
regulatory
authority.
The
State
or
EPA
Region
can
conduct
the
number
of
inspections
and
reviews
it
believes
necessary
to
ascertain
compliance
with
conditions
of
the
variance,
as
well
as
compliance
with
other
RCRA
requirements
applicable
to
the
facility.

E.
Handling
to
Minimize
Loss
The
fifth
evaluation
criterion
(40
CFR
260.31(
c)(
5))
concerns
the
extent
to
which
the
partially
reclaimed
material
is
handled
to
minimize
loss.
Petitioners
must
demonstrate
that
the
material
is
handled
as
if
it
were
a
valuable
commodity
and
in
a
manner
that
is
protective
of
human
health
and
the
environment.
11
In
the
proposal,
EPA
stated
that
the
value
of
the
concentrates
and
the
contracts
between
WRC
and
both
generators
and
smelters
provide
incentives
for
WRC
to
manage
both
the
unprocessed
sludges
and
the
processed
concentrates
to
prevent
loss.
EPA
also
noted
that
the
processed
concentrates
will
remain
subject
to
Subtitle
C
storage
regulations
while
held
at
WRC
prior
to
shipment,
because
the
variance
will
not
take
effect
until
the
concentrates
are
loaded
for
shipment.
Even
after
the
RCRA
variance
takes
effect,
the
concentrates
will
remain
subject
to
DOT
regulations
for
hazardous
substances
during
shipment
to
smelters.
The
smelters'
payments
for
the
concentrates
show
that
the
smelters
value
them
and
have
incentives
to
manage
them
carefully.
The
custom
blending
for
each
shipment
also
makes
it
more
likely
that
smelters
will
value
the
concentrates
and
handle
them
appropriately.

EPA,
however,
also
proposed
to
impose
a
condition
that
prohibits
land
placement
of
WRC's
concentrates
because
land
storage
has
a
high
potential
for
loss,
and
because
EPA
does
not
believe
that
analogous
concentrates
derived
from
virgin
materials
are
stored
on
the
land.
EPA
also
proposed
to
ensure
that
smelters
received
notice
of
this
limitation
by
requiring
WRC
to
restate
the
condition
in
all
contracts
with
smelters.
In
our
proposal,
EPA
described
this
limit
in
its
discussion
of
the
third
criterion,
the
extent
to
which
constituents
in
the
partially
reclaimed
material
resemble
constituents
in
the
analogous
raw
material.
EPA
is
clarifying
here
that
we
are
imposing
this
condition
to
ensure
that
WRC's
customers
handle
the
exempt
material
in
a
manner
that
will
minimize
loss.

One
commenter
claimed
that
WRC's
assertions
that
smelters
handle
concentrates
to
minimize
loss
are
not
a
sufficient
basis
for
EPA
to
make
a
conclusion
about
smelters'
operations.
EPA,
however,
is
not
basing
its
finding
on
this
criterion
on
these
assertions.
Rather,
EPA
has
independently
evaluated
the
factors
that
would
influence
smelters'
handling
of
these
materials,
and
concluded
that
the
smelter
payments,
WRC's
custom
blending
activities,
and
the
risks
to
the
smelters
from
prolonged
storage
make
it
likely
that
smelters
will
minimize
losses.
Moreover,
the
Agency
is
imposing
a
condition
which
provides
that
concentrates
stored
on
the
land
will
not
be
excluded
under
the
variance.

One
commenter
suggested
that
contracts
between
WRC
and
smelters
could
not
be
directly
enforced
by
WRC,
and
that
the
Agency
should
therefore
condition
the
variance
on
enforcement
agreements
between
the
smelters
and
ADEQ.
EPA
does
not
agree
that
enforcement
agreements
of
the
type
suggested
by
the
commenter
are
necessary
to
prevent
land
storage
at
smelters.
The
variance
clearly
makes
land
storage
a
violation
of
the
variance
conditions.
Concentrates
stored
on
the
land
would
not
be
excluded
from
the
definition
of
solid
waste,
and
EPA
and
the
State
could
take
enforcement
action
if
the
storage
did
not
comply
with
all
applicable
Subtitle
C
requirements.
This
commenter
also
suggested
that
EPA
should
promulgate
a
rule
establishing
management
conditions
at
all
metal
recyclers
and
smelters.
However,
such
a
rule
would
far
exceed
the
scope
of
our
variance
proposal.

F.
Additional
factors
In
addition
to
the
five
evaluation
factors
discussed
above,
EPA
may
consider
other
relevant
factors
in
determining
whether
or
not
to
grant
a
variance
from
the
definition
of
solid
waste
for
materials
that
have
been
reclaimed
but
must
be
reclaimed
further
before
recovery
is
12
complete
(40
CFR
260.31(
c)(
6)).
These
other
factors
may
be
raised
by
the
petitioner,
the
Agency,
or
other
interested
parties.
Such
factors
may
be
directly
applicable
to
EPA's
decision
to
grant
a
variance,
or
may
be
indirectly
applicable,
but
relevant
in
assigning
priorities
for
evaluating
a
particular
petition.

1.
Minimum
Metals
Content
for
Incoming
Sludges
In
the
proposal,
EPA
considered
the
possibility
that
WRC
could
engage
in
"sham
recycling"
by
blending
electroplating
sludges
with
low
metal
concentrations
into
sludges
with
higher
concentrations,
and
marketing
the
blended
"product"
to
smelters.
EPA
was
concerned
that
WRC's
processing
would
be
a
form
of
treatment
for
sludges
which
would
ultimately
be
disposed
of
in
smelter
wastes,
without
contributing
any
significant
metal
content
to
smelter
products.
To
ensure
that
WRC
would
be
engaged
in
legitimate
recycling,
the
Agency
proposed
to
require
each
incoming
sludge
to
have
a
minimum
content
of
either
two
percent
of
copper,
nickel
or
tin
(on
a
dry
weight
basis),
or
a
precious
metal
content
with
monetary
value
equivalent
to
the
copper,
nickel
or
tin
value.

One
commenter
stated
that
no
non­
conforming
shipments
should
be
allowed,
since
this
would
be
contrary
to
EPA's
policy
at
other
hazardous
waste
treatment,
storage,
and
disposal
facilities
(TSDFs).
In
response,
the
Agency
notes
that
our
proposal
to
allow
a
certain
number
of
non­
conforming
shipments
does
not
affect
the
status
of
the
incoming
material
as
a
hazardous
waste.
Such
shipments
would
still
be
subject
to
all
applicable
Subtitle
C
requirements,
as
is
the
case
with
all
other
TSDFs.
We
are
allowing
WRC
to
accept
a
minimum
number
of
shipments
below
the
normal
minimum
metal
content
which
will
still
be
eligible
for
the
variance
because,
as
a
practical
matter,
some
shipments
from
generators
will
(albeit
very
infrequently)
contain
less
than
the
desired
metal
content,
and
there
is
a
possibility
that
this
may
not
be
discovered
until
processing
of
the
shipment
has
begun.

Some
commenters
questioned
the
use
of
a
two
percent
dry
weight
limit
for
copper,
nickel,
or
tin.
One
commenter
stated
that
EPA
should
provide
a
broader
discussion
of
the
data
which
it
used
to
require
that
the
minimum
copper,
nickel,
or
tin
content
of
a
sludge
arriving
at
WRC
must
be
two
percent
dry
weight
in
order
for
the
dewatered
sludge
to
be
equivalent
in
quality
to
virgin
ore
feedstocks.
This
commenter
appeared
to
believe
that
the
levels
of
both
base
and
precious
metals
in
the
incoming
sludges
should
be
the
same
as
the
levels
found
in
virgin
ore
feedstocks
sent
to
smelters.

For
example,
this
commenter
questioned
why
economic
value
was
used
to
determine
equivalency
of
precious
metals
with
base
metals
in
incoming
sludges,
rather
than
expected
virgin
ore
quality
with
respect
to
precious
metals.
The
commenter
stated
that
the
value
of
gold
per
unit
weight
is
approximately
5,
000
times
that
of
copper
(based
on
current
market
prices).
Therefore,
the
current
economic
equivalent
of
two
percent
copper
(about
20,000
ppm)
would
be
about
4
ppm
gold,
or
about
0.09
troy
ounce
per
ton.
The
commenter
expressed
doubt
that
ores
containing
such
a
low
concentration
of
gold
would
be
mined
and
smelted
commercially.
The
commenter
appeared
to
be
suggesting
that
the
required
threshold
level
of
precious
metals
in
the
incoming
sludges
be
the
same
as
the
levels
of
such
metals
that
smelters
will
accept
in
virgin
ores.
Two
commenters
stated
that
concentrate
shipped
by
WRC
to
smelters
can
contain
a
13
significant
moisture
content
(up
to
50%).
Therefore,
according
to
these
commenters,
if
the
metal
concentration
in
the
incoming
sludges
were
two
percent
on
a
dry
weight
basis,
the
actual
concentration
as
shipped
to
the
smelter
would
be
below
two
percent.
If
feedstock
equivalency
required
a
copper
concentration
of
at
least
2.
5
percent,
the
dry
weight
concentration
in
the
sludge
that
WRC
received
would
need
to
be
at
least
four
percent
copper.

In
response
to
this
comment,
EPA
notes
that
we
did
not
intend
to
require
incoming
sludges
at
the
WRC
facility
to
be
equivalent
to
virgin
ore
feedstocks
with
respect
to
metal
content.
The
purpose
of
this
proposed
requirement
was
to
establish
a
minimum
metal
threshold
below
which
little
recovery
of
metals
would
occur.
After
reviewing
available
literature
and
discussing
this
issue
with
smelter
representatives,
the
Agency
concluded
that
the
two
percent
limit
appears
to
be
a
"smelter
cutoff,"
meaning
the
lowest
concentration
of
metal
that
a
given
smelter
will
allow
through
the
gate
on
a
dry
weight
basis
(see
memorandum
from
Paul
Borst
titled
"Analysis
of
Minimum
Metal
Content
of
Secondary
Feedstocks
Destined
for
Primary
Smelting
Operations
in
North
America,"
May
7,
1999).

The
minimum
metal
content
ensures
that
at
least
one
smelter
in
North
America
would
be
able
to
receive
and
process
all
incoming
sludges
to
the
WRC
facility.
This
condition
on
the
variance
ensures
that
secondary
materials
which
have
little
or
no
recoverable
metal
may
not
be
blended
in
with
metal­
bearing
secondary
materials
with
higher
metal
content.
The
condition
therefore
prevents
surrogate
treatment
and
disposal
of
the
secondary
materials
with
little
or
no
recoverable
metal
content.
It
is
not
necessary
to
require
WRC's
concentrates
to
contain
as
much
metal
as
virgin
ore
concentrates.
Similarly,
with
respect
to
the
reduction
of
moisture
content,
even
if
significant
moisture
reduction
of
the
incoming
sludges
occurs,
WRC
is
still
responsible
for
meeting
the
minimum
metal
content
on
a
dry
weight
basis
required
under
contract
specifications
for
particular
smelters.
In
addition,
we
note
that
moisture
reduction
tends
to
concentrate
metals
levels,
rather
than
dilute
them,
as
the
commenter
implied.
It
is
therefore
unnecessary
to
require
higher
metals
levels
in
the
incoming
sludges
to
account
for
moisture
reduction.

Similarly,
EPA
is
not
aware
of
any
smelters
that
refuse
to
give
credit
for
precious
metals
in
secondary
materials
when
their
concentrations
are
lower
than
those
considered
acceptable
for
virgin
ores,
so
long
as
the
monetary
values
are
equivalent.
The
Agency
believes
that
it
is
reasonable
to
base
minimum
metal
levels
in
the
incoming
sludges
on
smelter
acceptance
and
pricing
policies.

Another
commenter
said
that
EPA's
choice
of
a
two
percent
minimum
metal
content
level
for
incoming
sludges
or
an
equivalent
value
in
precious
metals
to
assure
the
"legitimacy"
of
WRC's
operation
is
based
on
faulty
and
incomplete
analysis.
This
commenter
suggested
that
the
required
minimum
metal
content
should
account
for
transportation
and
storage
costs
incurred
by
smelters
receiving
WRC
concentrate,
as
well
as
WRC's
processing
costs.
The
commenter
also
stated
that
the
highest
rather
than
the
lowest
smelter
cutoff
should
be
used
in
determining
legitimate
recovery
of
metals
from
incoming
material
to
WRC.

EPA
does
not
agree
that
the
highest
smelter
cutoff
(i.
e.,
the
most
stringent
metal
limit
required
by
any
smelter)
is
an
appropriate
number
for
the
incoming
limit
on
metals
in
the
sludges.
If
other
smelters
are
purchasing
materials
with
lower
metal
concentrations
and
reclaiming
metals
14
from
these
materials,
there
appears
no
reason
to
conclude
that
this
is
not
legitimate
reclamation.
Nor
does
the
Agency
agree
that
transportation
and
storage
costs
should
affect
which
level
of
metals
allows
legitimate
recycling
to
occur.

Two
commenters
questioned
how
WRC
would
segregate
its
incoming
loads
into:
(1)
sludges
containing
the
required
minimum
levels
of
recoverable
metals,
and
(2)
sludges
with
lower
levels
of
metals.
EPA
notes
that
the
conditions
of
the
variance
do
not
absolutely
prohibit
WRC
from
receiving
sludges
with
lower
metal
concentrations
than
those
specified
in
the
variance.
However,
listed
sludges
used
in
producing
the
concentrate
that
is
eligible
for
the
variance
must
conform
to
the
minimum
metals
limit
(except
for
two
non­
conforming
loads).
Sludges
not
used
for
this
purpose
need
not
contain
minimum
levels
of
metals.
The
Agency
does
not
believe
it
is
necessary
to
specify
in
the
variance
a
particular
method
for
segregating
the
two
types
of
sludges.
EPA
notes
that
many
facilities
manage
different
wastestreams,
some
of
which
are
regulated
under
RCRA
and
some
of
which
are
excluded.
For
purposes
of
retaining
the
regulatory
exclusion,
it
often
may
be
important
to
segregate
wastestreams.
However,
EPA
does
not
specify
in
its
regulations
a
particular
procedure
for
conducting
such
segregation.

Another
commenter
feared
that
waste
streams
containing
recyclable
levels
of
one
metal
could
be
diluted
down
to
non­
recyclable
levels
when
mixed
with
waste
streams
containing
other
metals.
This
commenter
proposed
an
additional
condition
for
the
WRC
variance
that
would
be
implemented
according
to
the
following
example.
The
company
receives
a
sludge
that
has
three
percent
copper
and
five
percent
nickel,
so
that
the
sludge
is
above
the
two
percent
minimum
metal
threshold
for
both
metals.
Hypothetically,
the
company
makes
a
business
decision
to
blend
this
sludge
with
other
nickel­
bearing
sludges
and
ship
the
blended
mixture
to
a
nickel
smelter
for
reclamation.
The
commenter
is
concerned
that
the
copper
in
the
original
incoming
shipment
has
been
diluted
below
two
percent
and
is
non­
recoverable
at
the
nickel
smelter.
The
commenter
believes
that
this
procedure
would
constitute
sham
recycling.
The
condition
that
the
commenter
proposed
would
require
that
a
nickel/
copper
bearing
sludge
be
only
blended
with
other
nickel/
copper­
bearing
sludges
and
that
the
blend
only
be
destined
to
a
smelter
or
other
recycling
facility
where
both
metals
are
recovered.

EPA
does
not
agree
that
recovering
nickel
values
would
constitute
sham
recycling
merely
because
the
copper
in
the
sludge
could
be
diluted
and
possibly
not
recovered.
WRC's
processing
would
make
the
concentrate
marketable
by
increasing
the
nickel
value.
Without
WRC's
drying,
blending,
and
consolidating
operations,
the
electroplating
sludge
most
likely
would
not
go
to
a
smelter
for
recovery
for
either
copper
or
nickel.
So
long
as
WRC
increased
the
concentration
for
one
metal,
EPA
does
not
think
the
fact
that
it
diluted
a
second
metal
shows
that
recycling
is
not
legitimate.
Moreover,
EPA
believes
that
many
virgin
ores
contain
multiple
metals
that
smelters
do
not
extract.

2.
Exports
and
Imports
One
commenter
noted
that
changing
the
regulatory
status
of
the
partially
reclaimed
material
removes
RCRA
import
and
export
requirements,
thus
taking
away
a
safeguard
designed
to
put
foreign
governments
on
notice
that
these
materials
are
hazardous.
This
commenter
suggested
that
if
EPA
grants
the
variance,
it
should
continue
to
require
compliance
with
these
15
requirements.
The
same
commenter
was
concerned
that
because
WRC's
facility
is
one
of
the
top
ten
receivers
of
hazardous
waste
from
Mexico,
the
granting
of
the
variance
may
increase
the
flow
of
waste
across
the
border,
increasing
the
transportation
risks
inherent
in
long
distance
transport.
The
commenter
believed
that
the
variance
could
inadvertently
discourage
the
development
of
much­
needed
hazardous
waste
disposal
and
recycling
facilities
in
Mexico
by
creating
an
incentive
for
shipping
exempted
waste
from
Mexico
into
the
US.
Finally,
the
commenter
stated
that
EPA
should
evaluate
whether
waste
shipments
from
Mexico
are
compatible
with
Mexican
and
other
applicable
international
or
bilateral
agreements
concerning
these
wastes.

The
Agency
believes
that
the
conditions
of
this
variance
are
adequate
to
provide
notice
to
foreign
governments.
The
variance
contains
a
requirement
that
WRC
must
send
a
one­
time
notification
of
the
variance
and
its
conditions
to
any
country
where
metal
smelters
accepting
WRC
concentrates
are
located.
WRC
is
also
required
to
submit
a
Material
Safety
Data
Sheet
shipped
with
the
concentrate
and
a
notification
that
the
concentrate
may
contain
up
to
590
ppm
cyanide
and
that
low
pH
environments
can
result
in
the
production
of
hydrogen
cyanide
gas.
EPA
believes
that
this
is
sufficient
notice
to
inform
foreign
governments
of
the
nature
of
WRC's
concentrate,
and
of
the
Agency's
decision
to
exclude
WRC's
concentrate
from
the
definition
of
solid
waste.
In
addition,
the
Agency
believes
that
the
RCRA
notification
and
consent
requirements
for
imports
and
exports
of
hazardous
waste
are
not
necessary
for
materials
that
have
been
determined
to
resemble
commodities
more
than
wastes.
We
note
that
these
requirements
do
not
apply
to
any
materials
that
are
excluded
from
the
definition
of
solid
waste.

With
respect
to
imports
from
Mexico,
EPA
believes
that
the
commenter's
concerns
are
speculative.
The
commenter
gives
no
data
or
detailed
theory
to
back
up
its
concern
that
shipments
from
Mexico
will
increase
or
that
Mexico
will
fail
to
develop
needed
waste
management
capacity.
The
status
under
RCRA
of
shipments
of
F006
imported
from
Mexico
will
not
be
affected
by
this
variance.
In
addition,
even
though
the
Agency
believes
that
RCRA
export
requirements
should
not
apply
to
commodity­
like
materials,
we
note
that
this
variance
does
not
automatically
affect
the
status
of
WRC's
concentrate
under
foreign
jurisdictions.
If
the
concentrate
is
classified
as
a
hazardous
waste
in
a
foreign
jurisdiction,
it
would
retain
that
status
unless
the
appropriate
regulatory
authority
in
that
jurisdiction
decided
to
change
the
classification
G.
Other
Issues
Raised
By
Commenters
1.
Effect
of
the
Variance
in
Other
States
One
commenter
asked
about
the
effect
of
the
variance
in
states
which
WRC's
concentrate
would
have
to
pass
through
in
order
to
reach
a
smelter.
In
response,
we
note
that
this
variance
is
a
variance
from
the
federal
definition
of
solid
waste.
States
with
authorized
programs
may
sometimes
have
more
stringent
requirements
than
the
federal
requirements
under
RCRA.
This
variance
therefore
would
not
relieve
WRC
from
the
obligation
to
consult
with
"pass
through"
states
to
ascertain
their
requirements
with
respect
to
manifesting.

2.
WRC
Compliance
History/
Permitting
16
One
commenter
stated
that
WRC
has
a
poor
compliance
history,
and
that
there
is
little
reason
to
believe
in
the
facility's
future
compliance
with
any
conditions
in
the
exemption.
This
commenter
also
was
concerned
that
WRC
has
not
bermed
its
Arizona
facility,
and
has
had
at
least
one
washout
due
to
heavy
rains.
The
commenter
believed
that
EPA
should
wait
until
the
TSD
permitting
process
was
complete
before
finalizing
the
proposed
variance.
This
would
ensure
that
a
waste
analysis
plan
is
in
place,
that
each
incoming
load
is
checked
and
nonconforming
shipments
are
rejected.
The
permit
would
also
allow
public
participation
with
regard
to
the
management
of
the
materials
to
minimize
loss.

In
response,
the
Agency
notes
that
WRC's
compliance
with
all
environmental
regulations
has
always
been
closely
monitored
by
EPA
and
ADEQ.
We
have
confidence
that
this
oversight
will
continue
after
the
variance
is
granted.
All
operations
at
WRC's
Phoenix
facility
are
governed
by
a
Consent
Agreement
and
Consent
Order
(CA/
CO)
executed
by
EPA
Region
1X,
WRC,
and
ADEQ
(see
In
the
Matter
of
World
Resources
Company,
EPA
ID
No.
AZD980735500,
United
States
Environmental
Protection
Agency,
Region
IX,
September
3,
1996).
The
CA/
CO
includes
a
requirement
to
submit
an
application
for
a
treatment
and
storage
permit
to
ADEQ.
Issuance
of
the
permit
will
allow
full
public
participation
with
respect
to
the
management
of
the
facility
under
RCRA.
In
the
meantime,
the
CA/
CO
requires
compliance
with
section
R18­
8­
265
of
the
Arizona
Administrative
Code,
which
incorporates
the
requirements
of
40
CFR
Part
265.
In
addition,
although
not
directly
relevant
to
RCRA
compliance,
the
facility
operates
under
a
Groundwater
Quality
Protection
Permit
issued
by
ADEQ
and
an
air
quality
permit
issued
by
Maricopa
County,
Arizona.
EPA
believes
that
these
requirements
are
adequate
to
protect
human
health
and
the
environment
until
a
treatment
and
storage
permit
is
issued.

3.
Enforcement
of
the
Variance
Conditions
One
commenter
stated
that
EPA
did
not
provide
enforcement
options
in
the
record
when
a
condition
of
the
variance
is
violated.
This
commenter
said
that
in
order
for
the
conditions
to
be
meaningful,
it
must
be
clearly
stated
and
understood
that
if
a
condition
is
violated,
the
waste
will
lose
its
exemption
status
and
thus
all
hazardous
waste
requirements
will
apply
to
the
materials
and
all
responsible
parties
will
be
found
in
violation
of
both
the
exemption
and
the
applicable
standards
of
RCRA.

In
response,
the
Agency
notes
that
if
any
of
the
variance
conditions
are
violated,
appropriate
remedies
will
be
decided
by
the
regulatory
authorities,
as
is
the
case
with
all
violations
of
conditions
for
exclusions
from
the
definition
of
solid
or
hazardous
waste.

4.
CBI
Issues
One
commenter
claimed
that
important
information
was
withheld
from
the
public
because
WRC
claimed
that
it
was
confidential
business
information.
Under
40
CFR
part
2,
EPA
must
protect
such
information
from
disclosure
unless
it
determines
that
the
information
is
not
in
fact
entitled
to
protection
or,
under
RCRA,
unless
it
determines
that
its
release
is
necessary
to
a
proceeding.
The
commenter
first
argued
that
variance
seekers
should
never
be
entitled
to
claim
CBI
for
data
submitted
to
support
claims
for
variance.
This
commenter
viewed
a
variance
is
as
a
privilege;
therefore
variance
seekers
are
required
to
share
all
relevant
data
with
the
public.
17
EPA
does
not
agree
that
variance
seekers
must
reveal
business
secrets
to
competitors.
EPA's
CBI
rules
in
40
CFR
part
2
do
not
prohibit
CBI
claims
in
data
submitted
to
support
a
variance.
Nor
do
EPA's
requirements
for
partially
reclaimed
variances
in
40
CFR
part
260
inform
applicants
that
they
may
not
claim
CBI
protection
for
information
submitted
to
support
a
variance.
EPA
may
use
discretion
to
determine
whether
commenters
actually
need
to
see
an
applicant's
data.
In
this
case,
as
explained
below,
EPA
decided
that
public
review
of
the
data
that
WRC
claimed
as
CBI
was
not
necessary.
Therefore,
EPA
withheld
it
it.
EPA
did
not
need
to
determine
whether
the
data
were
in
fact
CBI.

The
commenter
also
claims
that
withholding
data
claimed
as
CBI
makes
it
impossible
for
it
to
evaluate
the
basis
for
EPA's
findings
for
three
of
variance
criteria.
EPA
disagrees,
as
explained
below.

i)
Second
variance
criterion
­
value
of
material
after
it
has
been
reclaimed.

EPA
agrees
with
the
commenter
that
the
relevant
test
is
the
market
value
of
material
before
and
after
WRC
processes
it.
The
commenter
claims
that
the
record
does
not
show
that
EPA
looked
at
this
factor.
However,
EPA
did
perform
this
comparison.
The
preamble
to
proposal
states
that
"the
Agency
notes
that
WRC's
concentrate
has
considerably
higher
value
than
`as­
generated'
F006
sludges."
Non­
CBI
record
materials
show
that
electroplaters
pay
WRC
to
take
their
unprocessed
sludges,
while
WRC
sells
the
processed
sludges.
Only
the
dollar
amounts
have
been
withheld.
See,
e.
g.
WRC
petition,
non­
CBI
version,
p.
A­
2.
The
commenter
does
not
need
to
see
the
actual
dollar
figures
removed
from
this
page,
or
the
extrapolated
data
from
actual
contracts
that
EPA
examined
to
corroborate
WRC's
petition.

The
commenter
also
claims
that
EPA
must
compare
the
costs
and
revenues
associated
with
electroplaters
who
send
sludges
directly
to
smelters
with
the
costs
and
revenues
associated
with
WRC's
business.
EPA
disagrees.
Whether
WRC
makes
more
money
or
less
money
than
an
electroplater
who
manages
to
sell
sludge
to
a
smelter
is
irrelevant.
What
matters
is
whether
WRC
increases
the
value
of
the
material
that
it
receives.
Moreover,
EPA
did
make
a
non­
quantitative
comparison
of
the
two
types
of
operations.
EPA
found
that
"many
smelters
are
reluctant"
to
take
F006
sludges
directly
from
electroplating
operations
(see
Pollution
Prevention
and
Control
Technology
for
Plating
Operations,
George
C.
Cushnie,
Jr.,
1994).
In
contrast,
EPA
found
that
WRC
has
stable,
long­
term
sales
relationships
with
its
"customer"
smelters.
Data
in
Table
4­
1
in
WRC's
application,
indicate
that
contracts
have
been
in
place
with
one
smelter
since
the
1970's
and
that
the
newest
have
been
in
place
since
the
mid­
1990's.
This
data
is
available
to
the
public.
Moreover,
EPA
found
that
WRC
has
"multi­
year"
contracts
with
these
smelters
(although
it
withheld
the
precise
number
of
years
involved).
These
factors
indicate
that
WRC's
drying
and
blending
activities,
plus
its
larger
shipments,
make
the
processed
sludges
more
valuable
to
smelters
than
unprocessed
sludges.
The
commenter
does
not
need
to
see
WRC's
contracts
to
evaluate
these
findings,
as
they
involve
no
exercise
of
discretion
on
EPA's
part,
and
there
would
be
no
additional
value
to
notice
and
comment
on
this
issue.

ii).
Fourth
criterion
­
guaranteed
end
market
18
The
commenter
expresses
concern
that
mineral
markets
are
volatile,
with
occasional
bankruptcies
and
abandonments.
They
fear
that
materials
processed
by
WRC
will
end
up
"stockpiled"
when
the
minerals
they
contain
become
less
valuable.

EPA
does
not
understand
how
examination
of
the
material
withheld
as
CBI
would
improve
the
commenter's
ability
to
address
this
issue.
If
a
smelter
is
financially
unstable,
a
contract
with
WRC
would
not
be
likely
to
significantly
improve
stability.
If
the
commenter
is
really
arguing
that
EPA
should
not
grant
a
variance
to
a
secondary
material
where
the
market
for
that
material
is
volatile,
EPA
disagrees
(although
the
Agency
might
in
an
extreme
case
use
variability
in
value
as
an
indicator
that
a
recycling
process
is
a
"sham").

In
addition,
as
noted
above,
EPA
found
that
WRC's
contracts
were
"long­
term"
and
"multi­
year."
The
non­
CBI
petition
shows
that
all
of
the
current
contracts
have
been
in
place
since
at
least
1993,
which
indicates
that
WRC's
processed
sludges
remain
valuable
to
smelters
over
time,
even
with
changes
in
the
value
of
the
metals
that
they
contain.
The
commenter
need
not
review
individual
contracts
to
confirm
this.

Even
more
importantly,
materials
held
at
WRC's
facility
will
not
be
covered
by
the
variance.
Instead,
Subtitle
C
requirements
continue
to
apply
even
to
processed
sludges
stored
at
WRC
prior
to
loading
for
shipment.
This
protects
human
health
and
the
environment
if
WRC
closes,
or
if
processed
material
is
still
at
WRC
when
a
smelter
closes.
It
is
true
that
materials
sent
to
smelters
could
be
stored
at
those
smelters
without
Subtitle
C
controls.
However,
WRC
blends
these
materials
to
specific
smelter
specifications
and
smelters
pay
to
obtain
them;
smelters
also
run
risks
of
deterioration
due
to
moisture
or
unanticipated
changes
in
metals
prices
if
the
materials
are
not
processed
quickly.
Hence
it
is
more
likely
that
smelters
will
use
them
quickly
than
store
them
for
long
periods
of
time.

iii)
Fifth
criterion
­
handled
to
minimize
loss
EPA
has
looked
at
the
dollar
value
of
the
materials
WRC
sells
to
smelters.
It
shared
with
the
public
WRC's
statement
that
it
receives
payments
from
the
smelters,
with
only
the
actual
dollar
values
masked.
EPA
does
not
agree
that
the
commenter
needs
to
see
the
actual
dollar
amounts
to
comment
on
this
issue.
EPA
does
not
have
a
rule
or
policy
establishing
a
specific
threshold
value
that
sales
must
meet.
Moreover,
EPA
notes
that
publicly
available
data
submitted
by
WRC
indicates
that
the
value
of
the
processed
material
is
not
trivial.
The
total
value
of
recovered
metals
contained
in
shipments
made
during
18
months
in
1994
and
1995
was
$3,051,851.
(WRC
variance
application
at
2­
2).
The
commenter's
concerns
might
have
more
merit
if
EPA
was
basing
its
findings
on
this
criterion
on
dollar
value
alone.
However,
in
this
proceeding
EPA
has
also
examined
the
manner
in
which
WRC,
transporters
and
smelters
actually
handle
the
sludges.

At
WRC,
both
unprocessed
sludges
and
processed
sludges
remain
subject
to
Subtitle
C
controls.
These
ensure
that
the
materials
will
be
handled
carefully
to
prevent
loss.
Processed
sludges
become
exempt
only
when
WRC
loads
them
on
a
transport
vehicle.
Prior
to
transport,
loading
of
all
the
concentrate
is
performed
by
trained
employees.
Trucks
and
rail
cars
are
only
loaded
if
they
are
"sift­
proof"
and
in
"good
repair"
under
DOT
regulations.
Once
loaded,
they
19
are
tarped
to
prevent
losses
during
transit.
DOT
regulations
for
hazardous
substances
continue
to
apply
to
transportation,
ensuring
that
the
processed
sludges
will
be
handled
carefully
during
transportation.
All
of
the
information
regarding
handling
at
WRC
and
during
transportation
is
in
the
non­
CBI
record.
Moreover,
to
encourage
smelters
to
handle
these
materials
carefully,
EPA
is
requiring
WRC
to
place
a
clause
in
each
contract
with
a
smelter
which
indicates
that
the
smelter
agrees
not
to
store
the
materials
on
the
land.

5.
Five
Year
Limit
In
its
December
9,
1999
proposal,
the
Agency
had
proposed
limiting
the
variance
to
five
years.
One
commenter
requested
an
explanation
for
this
limitation.
EPA
proposed
the
limit
because
the
variance
would
be
the
first
one
granted
to
this
company,
and
a
five­
year
limit
would
require
the
regulatory
authority
to
evaluate
the
effectiveness
and
appropriateness
of
the
variance
and,
if
appropriate,
propose
and
take
final
agency
action
to
renew
it.
At
this
time,
EPA
also
could
terminate
the
variance
or
change
the
conditions
of
the
variance
if
appropriate.
However,
EPA
has
reconsidered
this
proposed
limit
and
decided
not
to
finalize
it
as
proposed.
EPA
has
the
discretion
to
terminate
the
variance
at
any
time
if
its
conditions
are
violated,
or
if
changed
circumstances
render
the
variance
unnecessary
or
inappropriate.
Therefore,
it
is
not
necessary
to
require
EPA
to
conduct
an
evaluation
after
five
years
and
to
take
new
administrative
action
if
it
wishes
to
allow
the
variance
to
continue.
