[Federal Register Volume 62, Number 212 (Monday, November 3, 1997)]
[Rules and Regulations]
[Pages 59287-59290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29052]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 260

[FRL-5916-3]


Project XL Site-Specific Rulemaking for Molex, Inc., 700 Kingbird 
Road Facility, Lincoln, NE

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is proposing to implement a project under the Project 
XL program for the Molex, Inc. (Molex) facility located at 700 Kingbird 
Road, Lincoln, NE. The terms of the project are defined in a draft 
Final Project Agreement (FPA) which is being made available for public 
review and comment by this document. Also, EPA is making available for 
informational purposes a draft variance by the Nebraska Department of 
Environmental Quality necessary for implementation of the project. In 
addition, EPA is today promulgating a direct final site-specific rule, 
applicable only to the Molex facility, to facilitate implementation of 
the project. Also in today's Federal Register, EPA is publishing a 
proposed rule identical to this direct final rule. By this document, 
EPA solicits comment on the direct final rule, the draft variance, the 
draft FPA, and the project generally. Public notice is also being 
provided locally.
    This direct final site-specific rule is intended to provide 
regulatory changes under the Resource Conservation and Recovery Act 
(RCRA) to implement Molex's XL project, which will result in superior 
environmental performance and, at the same time, provide Molex with 
greater operational flexibility. The flexibility provided by Project XL 
will allow the facility to segregate waste streams which had previously 
been co-mingled into a single waste stream. By changing the process 
lines to generate separate waste streams (nickel, copper, tin/lead), 
the facility can optimize the precipitation of each metal more 
effectively before the effluent is sent to the POTW. The environmental 
benefit from the project will be a substantial reduction in the mass 
loading of metals entering the City of Lincoln's POTW. In addition, the 
resultant mono-metal sludges will be commodity-like materials suitable 
for recycling by smelters. A secondary environmental benefit will be 
increased recycling and reducing the amount of material that would 
otherwise be landfilled. The site-specific rule, applicable only to the 
Molex facility, would change certain RCRA requirements so the 
implementing agency, the Nebraska Department of Environmental Quality, 
may issue a temporary variance from classifying as solid waste nickel, 
copper, and tin/lead non-precious metals containing sludges generated 
by Molex.

DATES: This action will be effective January 2, 1998, unless adverse 
comments are received by December 3, 1997. If the effective date is 
delayed, timely notice will be published in the Federal Register.
    Public Hearing. A public hearing will be held, if requested, to 
provide interested persons an opportunity for oral presentation of 
data, views, or arguments concerning this direct final rule to 
implement Molex's XL project. If anyone contacts the EPA requesting to 
speak at a public hearing by November 24, 1997, a public hearing will 
be held at 7:00 p.m. on December 15, 1997. EPA will determine no later 
than November 28, 1997 whether a public hearing will be held. 
Additional information is provided in the section entitled ADDRESSES.
    Request to Speak at Hearing. Persons wishing to present oral 
testimony must contact Mr. David Doyle at the EPA by November 24, 1997. 
Additional information is provided in the section entitled ADDRESSES.

ADDRESSES: Comments. Written comments should be submitted in duplicate 
to: Mr. David Doyle, U.S. Environmental Protection Agency, Region VII, 
Air, RCRA & Toxics Division, 726 Minnesota Avenue, Kansas City, KS 
66101, (913) 551-7667.
    Docket. A docket containing supporting information used in 
developing this direct final rulemaking is available for public 
inspection and copying at U.S. EPA, Region VII, Air, RCRA & Toxics 
Division, 726 Minnesota Avenue, during normal business hours, and at 
EPA's Water docket (Docket name ``XL-Molex''); 401 M Street, SW, 
Washington, DC 20460. For access to the Water docket materials, call 
(202) 260-3027 between 9:00 a.m. and 3:30 p.m. (Eastern time) for an 
appointment. A reasonable fee may be charged for copying. A docket is 
also available for public inspection at the Nebraska Department of 
Environmental Quality, Lincoln, NE.
    Public Hearing. If a public hearing is held, it will be held at 
7:00 p.m. on December 15, 1997 at the following location: Nebraska 
Department of Environmental Quality, Lincoln, NE. Persons interested in 
whether a hearing will be held should contact Mr. David Doyle, (913) 
551-7667, after November 28, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. David Doyle, U.S. Environmental 
Protection Agency, Region VII, Air, RCRA & Toxics Division, 726 
Minnesota Avenue, Kansas City, KS 66101, (913) 551-7667.

SUPPLEMENTARY INFORMATION:

Outline of This Document

I. Authority
II. Background
    A. Overview of Project XL
    B. Overview of the Molex XL Project
    1. Introduction
    2. Molex XL Project Description
    3. Environmental Benefits
    4. Stakeholder Involvement
III. Resource Conservation and Recovery Act Requirements
IV. Additional Information
    A. Public Hearing
    B. Executive Order 12866
    C. Regulatory Flexibility
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act

I. Authority

    This regulation is being promulgated under the authority of 
sections 1004, 2002, 3001-3007, and 3010 of the Solid Waste Disposal 
Act of 1970, as amended by the Resource Conservation and Recovery Act, 
as amended (42 U.S.C. 6903, 6912, 6921-6927, and 6930).

II. Background

A. Overview of Project XL

    This site-specific rule is designed to implement a project 
developed under Project XL, an important EPA initiative to allow 
regulated entities to achieve better environmental results at less 
cost.

[[Page 59288]]

Project XL--for ``eXcellence and Leadership''--was announced on March 
16, 1995, as a central part of the National Performance Review's and 
EPA's effort to reinvent environmental protection. See 60 FR 27282 (May 
23, 1995). In addition, on April 22, 1997, EPA modified its guidance on 
Project XL, solicited new XL proposals, clarified EPA definitions, and 
described changes intended to bring greater efficiency to the process 
of developing XL projects. See 62 FR 19872 (April 22, 1997).
    Project XL provides a limited number of private and public 
regulated entities an opportunity to develop their own pilot projects 
to provide regulatory flexibility that will result in environmental 
protection that is superior to what would be achieved through 
compliance with current and reasonably anticipated future regulations. 
These efforts are crucial to the Agency's ability to test new 
regulatory strategies that reduce regulatory burden and promote 
economic growth while achieving better environmental and public health 
protection. The Agency intends to evaluate the results of this and 
other Project XL projects to determine which specific elements of the 
project, if any, should be more broadly applied to other regulated 
entities to the benefit of both the economy and the environment.
    In Project XL, participants in four categories--facilities, 
industry sectors, governmental agencies and communities--are offered 
the flexibility to develop common sense, cost-effective strategies that 
will replace or modify specific regulatory requirements, on the 
condition that they produce and demonstrate superior environmental 
performance. To participate in Project XL, applicants must develop 
alternative pollution reduction strategies pursuant to eight criteria--
superior environmental performance; cost savings and paperwork 
reduction; local stakeholder involvement and support; test of an 
innovative strategy; transferability; feasibility; identification of 
monitoring, reporting and evaluation methods; and avoidance of shifting 
risk burden. They must have full support of affected Federal, state and 
tribal agencies to be selected. The XL program is intended to allow EPA 
to experiment with untried, potentially promising regulatory 
approaches, both to assess whether they provide benefits at the 
specific facility affected, and whether they should be considered for 
wider application. Such pilot projects allow EPA to proceed more 
quickly than would be required to undertake changes on a nationwide 
basis. As part of this experimentation, EPA may try out approaches or 
legal interpretations that depart from or are even inconsistent with 
longstanding Agency practice, so long as those interpretations are 
within the broad range of discretion enjoyed by the Agency in 
interpreting statutes that it implements. EPA may also modify rules 
that represent one of several possible policy approaches within a more 
general statutory directive, so long as the alternative being used is 
permissible under the statute. Adoption of such alternative approaches 
or interpretations in the context of a given XL project does not, 
however, signal EPA's willingness to adopt that interpretation as a 
general matter, or even in the context of other XL projects. It would 
be inconsistent with the forward-looking nature of these pilot projects 
to adopt such innovative approaches prematurely on a widespread basis 
without first finding out whether or not they are viable in practice 
and successful in the particular projects that embody them. 
Furthermore, as EPA indicated in announcing the XL program, the Agency 
expects to adopt only a limited number of carefully selected projects. 
These pilot projects are not intended to be a means for piecemeal 
revision of entire programs. Depending on the results in these 
projects, EPA may or may not be willing to consider adopting the 
alternative interpretation again, either generally or for other 
specific facilities.
    EPA believes that adopting alternative policy approaches and 
interpretations, on a limited, site-specific basis and in connection 
with a carefully selected pilot project, is consistent with the 
expectations of Congress about EPA's role in implementing the 
environmental statutes (so long as the Agency acts within the 
discretion allowed by the statute). Congress' recognition that there is 
a need for experimentation and research, as well as ongoing re-
evaluation of environmental programs, is reflected in a variety of 
statutory provisions, such as sections 101(b) and 103 of the Clean Air 
Act. In some cases, as in this XL project, such experimentation 
requires an alternative regulatory approach that, while permissible 
under the statute, was not the one adopted by EPA historically or for 
general purposes.

B. Overview of the Molex XL Project

1. Introduction
    Today's direct final site-specific rule supports a Project XL draft 
Final Project Agreement (FPA) and the Nebraska Department of 
Environmental Quality draft variance that have been developed by the 
Molex XL stakeholder group, namely Molex, Inc. (Molex), EPA, Nebraska 
Department of Environmental Quality (NDEQ), Lincoln/Lancaster County 
Health Department and the City of Lincoln, NE. The draft FPA and NDEQ 
draft variance are available for review in the docket for today's 
action and also are available on the world wide web at http://
www.epa.gov/ProjectXL. The proposed FPA outlines how the project 
addresses the eight Project XL criteria, in particular how the project 
will produce, measure, monitor, report, and demonstrate superior 
environmental benefits. The NDEQ draft variance is the implementation 
mechanism for the project.
    In today's action, the Agency is soliciting comment on the site-
specific regulatory changes to implement the project. EPA also seeks 
comment on the proposed FPA, which is available on the world wide web 
and in the docket file for today's action, in light of the criteria 
outlined in the Agency's May 23, 1995, Federal Register notice (60 FR 
27282) regarding Regulatory Reinvention (XL) Pilot Projects and April 
22, 1997 Federal Register notice (62 FR 19872) Those criteria are: (1) 
Environmental performance superior to what would be achieved through 
compliance with current and reasonably anticipated future regulations; 
(2) cost savings or economic opportunity, and/or decreased paperwork 
burden; (3) stakeholder support; (4) test of innovative strategies for 
achieving environmental results; (5) approaches that could be evaluated 
for future broader application; (6) technical and administrative 
feasibility; (7) mechanisms for monitoring, reporting, and evaluation; 
and (8) consistency with Executive Order 12898 on Environmental Justice 
(avoidance of shifting of risk burden).
2. Molex XL Project Description
    Molex is a multinational company that operates several 
electroplating facilities worldwide. Molex as part of its proposal has 
upgraded its facility in Lincoln, NE by changing its waste water 
treatment system to allow it to optimize the recovery of metals used in 
the electroplating processes. Once operating this system under the 
project, the primary environmental benefit will be the reduction of 
metals loading in the effluent discharges into the publicly owned 
treatment works (POTW). A secondary environmental benefit will be 
increased recycling and reducing the amount of material that would 
otherwise be landfarmed.
    This project is an alternative environmental compliance strategy 
that encompasses technical changes to the

[[Page 59289]]

facility's wastewater treatment system, environmental improvements in 
the effluent to the POTW, regulatory relief for the facility for 
storage and shipment of wastes, and documentation of the technical, 
environmental and economic impacts of the alternative strategy.
    The facility generates several metals-bearing wastewater streams 
that formerly were brought together for combined treatment. Metals 
recovery in such a system is limited because each metal has its own 
optimal set of treatment conditions. At its new facility Molex is 
operating a segregated treatment system that separately treats each 
metal waste stream to optimize the precipitation of each metal 
contaminant to more effectively remove metals from the effluent to the 
POTW. Molex has made its investment in the system in anticipation of 
its participation in the XL program and the regulatory relief it will 
provide. At the new facility Molex changed the process lines to 
generate separate treatment sludges for nickel, copper, and tin/lead. 
The environmental benefit will be a substantial reduction in the mass 
loading of metals entering the City of Lincoln's POTW. In addition, the 
resultant mono-metal sludges will be commodity-like materials suitable 
for recycling by smelters. However, the segregated system will cost 
more to operate than a combined treatment system. Additionally, the 
segregated system will result in increased costs from compliance with 
the current regulations for handling the resultant sludges. Currently, 
Molex is handling the sludges as hazardous wastes. Without the 
regulatory relief provided in this project, Molex will not be able to 
financially justify continued operation of the segregated system.
3. Environmental Benefits
    This project supports goals of both the Federal Water Pollution 
Control Act (FWPCA), Nebraska Surface Water Quality Standards, Resource 
Conservation and Recovery Act (RCRA) and the Nebraska Hazardous Waste 
Management Program.
    This project supports the FWPCA and Nebraska Surface Water Quality 
Standards goals to restore and maintain the chemical, physical and 
biological integrity of the Nation's and State's waters. Specifically, 
this project reduces the metals loading effluent into the City of 
Lincoln, NE's POTW, thus reducing metals discharges from the POTW into 
the nation's and State's waters and metals constituents in the POTW 
sludge that ultimately is landfarmed. Additionally, the reduced loading 
maintains the reserve treatment capacity of the POTW, thus deferring 
the replacement or enlargement of the publicly financed construction.
    This project also supports the RCRA and Nebraska Hazardous Waste 
Management Program goals of resource recovery and conservation. 
Specifically, this project results in direct recycling of mono-metals 
bearing sludges by smelters, which will decrease the need for mining of 
ores or other virgin materials, thus conserving mineral resources and 
reducing the amount of materials that would otherwise be landfarmed.
4. Stakeholder Involvement
    The participating stakeholders are the signatories to this FPA. In 
addition, the Lincoln/Lancaster County Health Department and the City 
of Lincoln, Nebraska have supported the development of this project. 
Also, the public has been notified from the outset of this project and 
invited to participate, and will continue to be informed as the project 
is implemented through dissemination of the reports submitted by Molex 
to NDEQ and EPA.

III. Resource Conservation and Recovery Act Requirements

A. Summary of Regulatory Changes for the Molex XL Project

    The NDEQ hazardous waste program has been authorized by EPA 
pursuant to the Resource Conservation and Recovery Act (RCRA) Section 
3006(b) and 40 CFR Part 271, to carry out the Nebraska program in lieu 
of the Federal hazardous waste program. Sludges from Molex's former 
combined treatment system contain copper, nickel, tin, lead, and gold. 
The gold content of the materials has allowed Molex to handle the 
combined treatment sludge as ``recyclable materials'' from which 
precious metals are reclaimed under Title 128, Rules and Regulations 
Governing Hazardous Waste Management in Nebraska, Chapter 7, Section 
010.
    Except for a small quantity of sludge generated from the gold 
plating operation, the sludges at the new facility will not contain 
precious metals and therefore will not qualify as ``recyclable 
material'' from which precious metals are reclaimed. As such, in the 
absence of this regulatory relief, the materials will be subject to the 
NDEQ Title 128 generator requirements for storage and shipment of 
hazardous wastes, at considerably greater expense for storage, shipment 
and disposal/recycling as compared to the precious metals exemption. 
With the regulatory relief, Molex will be allowed to handle the non-
precious mono-metals sludges as a commodity-like material with 
substantially reduced regulatory compliance costs.
    To accomplish the regulatory relief, the U.S. EPA today is 
promulgating a direct final site-specific rule to amend 40 CFR 
260.31(c), which provides that authorized state agencies may:

``* * * grant requests for a variance from classifying as a solid 
waste those materials that have been reclaimed but must be reclaimed 
further before recovery is completed if, after initial reclamation, 
the resulting material is commodity-like (even though it is not yet 
a commercial product, and has to be reclaimed further).''

    The federal site-specific rule will provide that the nickel, 
copper, and tin/lead non-precious metals bearing sludges generated at 
the Molex facility may qualify for a regulatory variance from NDEQ. The 
site-specific rule will also provide that the variance may be issued on 
a temporary basis by NDEQ.

IV. Additional Information

A. Public Hearing

    A public hearing will be held, if requested, to provide opportunity 
for interested persons to make oral presentations regarding the direct 
final rule. Persons wishing to make oral presentation on the rule to 
implement Molex's XL project should contact the EPA at the address 
given in the ADDRESSES section of this document. Any member of the 
public may file a written statement before, during, or within 30 days 
after the hearing. Written statements should be sent to EPA at the 
addresses given in the ADDRESSES section of this document. If a public 
hearing is held, a verbatim transcript of the hearing and written 
statements will be available for inspection and copying during normal 
business hours at the EPA addresses given in the ADDRESSES section of 
this document.

B. Executive Order 12866

    Because this rule only affects one facility it is not a rule of 
general applicability subject to OMB review under E.O. 12866. In 
addition, OMB has agreed that they do not need to review site specific 
rules under Project XL.

C. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and

[[Page 59290]]

small governmental jurisdictions. This rule would not have a 
significant impact on a substantial number of small entities because it 
only affects one entity, the Molex facility in Lincoln, NE. Therefore, 
EPA certifies that this action will not have a significant economic 
impact on a substantial number of small entities.

D. Paperwork Reduction Act

    This action applies only to one company, and therefore requires no 
information collection activities subject to the Paperwork Reduction 
Act, and therefore no information collection request (ICR) will be 
submitted to the Office of Management and Budget (OMB) for review in 
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

E. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    As noted above, this rule is limited to Molex's facility in 
Lincoln, NE. EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. EPA has also determined that this rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. Thus, today's rule is not subject to 
the requirements of sections 202 and 205 of the UMRA.

List of Subjects in 40 CFR Part 260

    Environmental protection, Hazardous waste, Treatment storage and 
disposal facility, Waste determination.

    Dated: October 27, 1997.
Carol M. Browner,
Administrator.
    For the reasons set forth in the preamble of this rule, chapter I 
of title 40 of the Code of Federal Regulations is amended as follows:
    1. The authority citation for part 260 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939, and 6974.

    2. Section 260.31 is amended by adding paragraph (d) to read as 
follows:


Sec. 260.31  Standards and criteria for variances from classification 
as a solid waste.

* * * * *
    (d) Pursuant to participation by Molex, Inc. in the Project XL 
program (May 23, 1995 and April 22, 1997), and for a period not to 
exceed two years, the Nebraska Department of Environmental Quality may 
grant to the Molex, Inc. facility located at 700 Kingbird Road in 
Lincoln, NE, a temporary variance from classifying as a solid waste the 
commodity-like nickel, copper, and tin/lead non-precious metals bearing 
sludges generated at the facility.

[FR Doc. 97-29052 Filed 10-31-97; 8:45 am]
BILLING CODE 6560-50-U