To:   DSW Rulemaking Record

From:  Marilyn Goode

Subject:  DSW Supplemental Proposal of March 26, 2007

On April 2, 3, and 4, 2007, I had several phone conversations with Neil
King of Wilmer Cutler Pickering, who represents Inmetco.  He made the
following suggestions for changes he would like to see in the final
rule: 

1.  On p. 162 and other places in the economic analysis (Case Study #2),


we refer to Inmetco recovering nickel and cadmium from EAF dust.  That 

should be nickel and chromium.  They recover cadmium mainly from
batteries.

2.  260.10, definition of hazardous secondary material generated and
reclaimed 

under the control of the generator - part 3 says " such material is 

generated pursuant to a written contract between a tolling contractor
and 

batch manufacturer and are reclaimed by the tolling contractor.... ".  

This should read  "......... and is reclaimed by the tolling 

contractor........".  

3.  261.4(a)(23)(iv).  Regarding reclaimer notifications, we say that
the 

reclaimer must identify "when the material will begin to be managed in 

accordance with this conditional exclusion.  Since elsewhere we say that


the (a)(23) exclusion has no conditions, it would be better to drop the 

word "conditional" here.

4. 261.2(g)(1).  We say that hazardous secondary material that is not 

legitimately recycled is discarded and is a waste.  We then say that 

"persons who recycle such materials.... must be able to demonstrate that


the recycling is legitimate. In order to avoid people thinking that
"such 

materials" refers back to discarded stuff, we should replace this phrase


with "persons who recycle hazardous secondary materials....must be able
to 

demonstrate....".  

5.  261.2(g)(2)(ii)(B).  We say that a product or intermediate is
valuable 

if it is ..... "used by the recycler or the generator as an effective 

substitute for a commercial product or as an ingredient or intermediate
in 

an industrial process" . We should clarify that the word "generator" 

refers to the generator of the hazardous secondary material, not the 

generator of the product.  The steel people generate the K061, Inmetco
reclaims the metals, sends them back to the steel people who use it to
make steel products.  So the "valuable product" here is the K061
reclaimed by Inmetco that the steel people (the generators of the 

original hazardous secondary material) use as an ingredient to make
steel 

products.  

6..  261.4(a)(23) - Introductory paragraph and 261.4(a)(23(i) - replace 

current language with "hazardous secondary material generated and 

reclaimed within the U.S. or its territories is not a solid waste
provided 

that (i) while it is managed in a land-based unit as defined in 260.10, 

the material is contained; and............ ".  This change would make
the 

structure of (i) parallel with (ii) and (iii). 

7.     261.4(a)(24)(v) - need to clarify whether these conditions apply
to 

reclaimers who have a permit because of non-excluded waste that they
also 

handle.

8.  261.4(a)(24(v)(C) - the first sentence about managing residuals in a


manner that is protective of hh&e - is it meant to illustrate the second


sentence about managing characteristic/listed wastes under Subtitle C,
or 

does it set up a separate and additional standard?

9. 261.4(a)(24)(vi) - We say that a reclamation facililty which manages 

materials under this exclusion may also accept fully regulated waste.  

Then we say that "such materials are not solid waste"  - we mean the 

excluded material and not the fully regulated stuff, right?  We should 

rephrase this to make it clear.  Then we say that "the RCRA regulatory 

status of the reclamation facility will not be affected, provided that
the 

reclamation facility complies with....."  This sentence is confusing,
and 

we need to spell out what we mean exactly.  

Substantive comments:

1.  Our idea that a tolling contractor (rather than the batch 

manufacturer) is in essence the "generator" of a hazardous secondary 

material is really a fiction. Our regs say that the tolling contractor 

must retain responsibility for the hazardous secondary material.  

Inmetco's contracts work the other way - they reclaim EAF and send it
back 

to the steel people and the contracts specify that Inmetco retains 

responsibility for the material. They don't think the steel people will 

want the responsibility, and would prefer not to change the form of
their 

contracts.

2.  If we prohibit the use of brokers or intermediaries for the (a)(24) 

exclusion, we may discourage the recycling of F006, because sometimes
F006 

is aggregated by middlemen to take advantage of economies of scale in 

transportation.  Sometimes electroplaters would find it too expensive to


ship their stuff all by itself to a reclaimer.

3.  We should clarify whether destination facilities handling universal
waste can 

choose to be excluded under 261.4(a)(24) even when the generator prefers


to stay classified as a universal waste handler.

