[Federal Register Volume 66, Number 109 (Wednesday, June 6, 2001)]
[Proposed Rules]
[Pages 30349-30361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14249]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6992-5]


Project XL Site-Specific Rulemaking for the IBM Semiconductor 
Manufacturing Facility in Hopewell Junction, New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; Request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) is today proposing 
this rule to implement a pilot project under the Project XL program 
that would provide site-specific regulatory flexibility under the 
Resource Conservation and Recovery Act (RCRA), as amended, for the 
International Business Machines Corporation (IBM) East Fishkill 
semiconductor manufacturing facility in Hopewell Junction, New York. 
The principal objective of this IBM East Fishkill XL project is to 
determine whether the wastewater treatment sludge resulting, in part, 
from the treatment of wastewaters from electroplating operations (and 
therefore meeting the listing description for F006 Hazardous Waste) may 
be used as an ingredient in the manufacture of cement in an 
environmentally sound manner without RCRA regulatory controls.
    As a result of this XL project, the Agency expects to receive data 
with regard to the effectiveness and safety of using IBM's wastewater 
treatment sludge as an ingredient in the manufacture of cement. To 
gather the information needed to make a determination that IBM's sludge 
need not be regulated as a RCRA hazardous waste in order to protect 
human health and the environment when recycled as an ingredient in 
cement, today's proposed rule, when finalized, will provide a 
conditional exclusion for IBM's wastewater treatment sludge from the 
definition of solid waste, thus allowing for the recycling scenario to 
be implemented. IBM will be required to submit periodic reports 
containing pertinent information regarding this XL project. Such data 
could ultimately be useful in supporting any future EPA regulatory 
initiatives regarding the recycling of F006 to make cement products. 
EPA does not expect, however, that this XL project alone will generate 
substantial amounts of data on the wide variety of other F006 
wastestreams that could potentially be used to make cement; such 
additional data would be required before EPA would be in a position to 
develop a national rulemaking for this particular recycling scenario.

DATES: Public Comments: Comments on the proposed rule must be received 
on or before July 6, 2001. All comments should be submitted in writing 
to the address listed below.
    Public Hearing: Commenters may request a public hearing by June 20, 
2001 during the public comment period. Commenters requesting a public 
hearing should specify the basis for their request. If EPA determines 
that there is sufficient reason to hold a public hearing, it will do so 
by June 27, 2001, during the last week of the public comment period. 
Requests for a public hearing should be submitted to the address below. 
If a public hearing is scheduled, the date, time, and location will be 
available through a Federal Register notice or by contacting Mr. Sam 
Kerns at the U.S. EPA Region 2 office.

ADDRESSES: Comments: Written comments should be mailed to the RCRA 
Information Center Docket Clerk (5305W), U.S. Environmental Protection

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Agency, 1200 Pennsylvania Ave. NW., Washington, D.C. 20460. Please send 
an original and two copies of all comments, and refer to Docket Number 
F-2001-IB2P-FFFFF.
    Request for a Hearing: Requests for a hearing should be mailed to 
the RCRA Information Center Docket Clerk (5305G), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Ave. NW., Washington, D.C. 20460. 
Please send an original and two copies of all comments, and refer to 
Docket Number F-2001-IB2P-FFFFF. A copy should also be sent to Mr. Sam 
Kerns at the U.S. EPA Region 2 office. Mr. Kerns may be contacted at 
the following address: U.S. Environmental Protection Agency, Region 2, 
290 Broadway, New York, NY 10007-1866, (212) 637-4139.
    Viewing Project Materials: A docket containing the proposed rule, 
Final Project Agreement, supporting materials, and public comments is 
available for public inspection and copying at the RCRA Information 
Center (RIC), located at Crystal Gateway, 1235 Jefferson Davis Highway, 
First Floor, Arlington, Virginia. The RIC is open from 9:00 am to 4:00 
pm Monday through Friday, excluding Federal holidays. The public is 
encouraged to phone in advance to review docket materials. Appointments 
can be scheduled by phoning the Docket Office at (703) 603-9230. Refer 
to RCRA docket number F-2001-IB2P-FFFFF. The public may copy a maximum 
of 100 pages from any regulatory docket at no charge. Additional copies 
cost 15 cents per page. Project materials are also available for review 
for today's action on the world wide web at http://www.epa.gov/projectxl/.
    A duplicate copy of the docket is available for inspection and 
copying at the U.S. EPA Region 2 Library, 290 Broadway, New York, NY 
10007-1866, during normal business hours. Persons wishing to view the 
duplicate docket at the New York location are encouraged to contact Mr. 
Sam Kerns or Ms. Aleksandra Dobkowski-Joy in advance, by telephoning 
(212) 637-4139 or (212) 637-3676, respectively.

FOR FURTHER INFORMATION CONTACT: Mr. Sam Kerns or Ms. Aleksandra 
Dobkowski-Joy, U.S. Environmental Protection Agency, Region 2, 290 
Broadway, New York, NY 10007-1866. Mr. Kerns can be reached at (212) 
637-4139 (or [email protected]) and Ms. Dobkowski-Joy can be reached at 
(212) 637-3676 (or [email protected]). Further information 
on today's action may also be obtained on the world wide web at http://www.epa.gov/projectxl/.

SUPPLEMENTARY INFORMATION: This pilot project assesses the 
appropriateness of excluding from the RCRA regulatory definition of 
solid waste the wastewater treatment sludge (designated as F006 
Hazardous Waste) generated by one of the two fluoride/heavy metal 
wastewater treatment plants (the plant designated as B/690 West Complex 
by IBM) on the IBM East Fishkill facility when the sludge is being used 
as an ingredient in the manufacture of cement, and to characterize 
those factors that may determine whether similar sludges should also be 
excluded from RCRA regulatory controls when recycled in the same 
manner. This proposed rule is not intended to apply to any other 
hazardous wastes generated and/or managed at the IBM facility, although 
wastewater treatment sludge (also designated as F006 Hazardous Waste) 
generated by the other wastewater treatment plant (the B/386 East 
Complex) at the facility may become eligible in the future once a Final 
Project Agreement (or addendum to the current Final Project Agreement) 
is signed allowing for the additional sludge to be included in this 
project. This proposed rule does not apply to any wastewater treatment 
sludges generated at other facilities.
    The duration of this XL pilot project is five years. The site-
specific conditional exclusion from the definition of solid waste being 
proposed in today's notice includes a ``sunset provision'' which will 
automatically terminate the exclusion 5 years from the effective date 
of the final rulemaking promulgated to allow for the XL project to be 
implemented. (A ``sunset provision'' is typically included in 
regulatory changes to facilitate XL pilot projects.) Towards the end of 
the term of this XL project, EPA, the New York State Department of 
Environmental Conservation (NYSDEC), and IBM will evaluate the success 
of the pilot project. If the project is determined to be successful, 
EPA may consider expanding the scope of the exclusion to the national 
level (by rulemaking). Although EPA does not expect that this XL 
project by itself can generate all the data that would be necessary on 
the wide variety of other F006 wastestreams that could potentially be 
used to make cement to proceed with a national rulemaking, the data 
generated from this project may be useful in supporting such national-
level rulemaking.
    Today's proposed rulemaking will not in any way affect the 
provisions or applicability of any other existing or future 
regulations.
    EPA is soliciting comments on this rulemaking. EPA will publish 
responses to comments in a subsequent final rule. The XL project will 
enter the implementation phase when the final rule is promulgated by 
EPA, and NYSDEC has undertaken appropriate action to allow the project 
to be implemented. (The Final Project Agreement has already been signed 
by EPA, NYSDEC, and IBM.)
    The terms of the overall XL project are contained in a Final 
Project Agreement (FPA) which was the subject of a Notice of 
Availability published in the Federal Register on September 1, 2000 (65 
FR 53298) and which was signed by EPA, NYSDEC and IBM on September 29, 
2000. The Final Project Agreement (FPA) is available to the public at 
the EPA Docket in Washington, DC, in the U.S. EPA Region 2 library, at 
the IBM East Fishkill facility, and on the world wide web at http://www.epa.gov/projectxl/.

Outline of Today's Proposal

    The information presented in this preamble is organized as follows:

I. Authority
II. Overview of Project XL
III. Overview of the IBM East Fishkill XL Pilot Project
    A. To Which Facilities Will the Proposed Rule Apply?
    B. What Problems will the IBM East Fishkill XL Project Attempt 
to Address?
    1. Background on the Definition of Solid Waste
    2. Legitimate Recycling Determination
    3. Site-Specific Considerations at the IBM East Fishkill 
Facility
    C. What Solutions are Proposed by the IBM East Fishkill XL 
Project?
    D. What Regulatory Changes Will Be Necessary to Implement this 
Project?
    1. Federal Regulatory Changes
    2. State Regulatory Changes
    E. Why Is EPA Supporting this Approach to Removing the 
Electroplating Sludge From the Definition of Solid Waste?
    F. How Have Various Stakeholders Been Involved in This Project?
    G. How Will This Project Result in Cost Savings and Paperwork 
Reduction?
    H. What Are the Terms of the IBM East Fishkill XL Project and 
How Will They Be Enforced?
    I. How Long Will This Project Last and When Will It Be 
Completed?
IV. Additional Information
    A. How to Request a Public Hearing
    B. How Does This Rule Comply With Executive Order 12866: 
Regulatory Planning and Review?
    C. Is a Regulatory Flexibility Analysis Required?
    D. Is an Information Collection Request Required for This 
Project Under the Paperwork Reduction Act?
    E. Does This Project Trigger the Requirements of the Unfunded 
Mandates Reform Act?
    F. RCRA & Hazardous and Solid Waste Amendments

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    1. Applicability of Rules in Authorized States
    2. Effect on New York Authorization
    G. How Does This Rule Comply With Executive Order 13045: 
Protection of Children From Environmental Health Risks and Safety 
Risks?
    H. How Does This Rule Comply With Executive Order 13132: 
Federalism?
    I. How Does This Rule Comply With Executive Order 13175: 
Consultation and Coordination With Indian Tribal Governments?
J. Does this Rule Comply With the National Technology Transfer and 
Advancement Act?

I. Authority

    EPA is publishing this proposed regulation under the authority of 
sections 2002, 3001, 3002, 3003, 3006, 3010, and 7004 of the Solid 
Waste Disposal Act of 1970, as amended by the Resource Conservation and 
Recovery Act, as amended (42 U.S.C. 6912, 6921, 6922, 6923, 6926, 6930, 
6937, 6938, and 6974).

II. Overview of Project XL

    The Final Project Agreement (FPA) sets forth the intentions of EPA, 
NYSDEC, and the IBM East Fishkill facility in Hopewell Junction, NY 
with regard to a project developed under Project XL, which is an EPA 
initiative to allow regulated entities to achieve better environmental 
results with limited regulatory flexibility. The proposed regulation 
will allow implementation of the project. Project XL--``eXcellence and 
Leadership''--was announced on March 16, 1995, as a central part of the 
National Performance Review and the Agency's effort to reinvent 
environmental protection. See 60 FR 27282 (May 23, 1995). Project XL 
provides a limited number of private and public regulated entities an 
opportunity to develop their own pilot projects to request 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 
EPA's ability to test new strategies that reduce regulatory burden and 
promote economic growth while achieving better environmental and public 
health protection. EPA intends to evaluate the results of this and 
other Project XL projects to determine which specific elements of the 
project(s), if any, should be more broadly applied to other regulated 
entities for the benefit of both the economy and the environment.
    Under 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.
    The XL program is intended to encourage EPA to experiment with 
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 possible when 
undertaking 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 the statutes that 
it implements. EPA may also modify rules, on a site-specific basis, 
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, 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 determining 
whether they are viable in practice and successful in the particular 
projects that embody them. Furthermore, as EPA indicated in announcing 
the XL program, EPA 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 (provided that 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 section 8001 of RCRA.

XL Criteria

    To participate in Project XL, applicants must develop alternative 
environmental performance objectives pursuant to eight criteria: 
superior environmental performance; cost savings and paperwork 
reduction; stakeholder involvement and support; test of an innovative 
strategy; transferability; feasibility; identification of monitoring, 
reporting and evaluation methods; and avoidance of shifting risk 
burden. To be selected, the XL projects must have the full support of 
the affected Federal, State, local and tribal agencies.
    For more information about the XL criteria, readers should refer to 
the two descriptive documents published in the Federal Register (60 FR 
27282, May 23, 1995 and 62 FR 19872, April 23, 1997), and the December 
1, 1995 ``Principles for Development of Project XL Final Project 
Agreements'' document. For further discussion as to how the IBM East 
Fishkill XL project addresses the XL criteria, readers should refer to 
the Final Project Agreement available from the EPA RCRA docket, the 
U.S. EPA Region 2 library, or the Project XL web page (see ADDRESSES 
section of today's preamble).

XL Program Phases

    The Project XL program is compartmentalized into four basic 
developmental phases: the initial pre-proposal phase where the project 
sponsor comes up with an innovative concept that they would like EPA to 
consider as an XL pilot project; the second phase where the project 
sponsor works with EPA and interested stakeholders in developing an XL 
proposal; the third phase where EPA, local regulatory agencies, and 
other interested stakeholders review the XL proposal; and the fourth 
phase where the project sponsor works with EPA, local regulatory 
agencies, and interested stakeholders in developing a Final Project 
Agreement and legal mechanism. After promulgation of the final rule (or 
other legal mechanism) that provides the flexibility required for the 
XL pilot project, and after the Final Project Agreement has been signed 
by all designated parties, the XL pilot project proceeds on to 
implementation and evaluation.

Final Project Agreement

    The Final Project Agreement (FPA) is a written voluntary agreement 
between the project sponsor and regulatory

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agencies. The FPA contains a detailed description of the proposed pilot 
project. It addresses the eight Project XL criteria, and the 
expectation of the Agency that the XL project will meet those criteria. 
The FPA identifies performance goals and indicators that track whether 
the project is yielding the expected environmental benefits, and 
specifically addresses the manner in which the project is expected to 
produce superior environmental benefits. The FPA also discusses the 
administration of the FPA, including dispute resolution and 
termination. The FPA for this XL project is available for review in the 
docket for today's action, and is also available on the world wide web 
at http://www.epa.gov/projectxl/.

III. Overview of the IBM East Fishkill XL Project

    EPA is today requesting comments on the proposed rule to implement 
key provisions of this Project XL initiative. Today's proposed rule 
would facilitate implementation of the FPA that has been developed by 
EPA, the New York State Department of Environmental Conservation 
(NYSDEC), the IBM East Fishkill facility, and other stakeholders. 
Today's proposed rule, when finalized, would not be effective in New 
York until the State has made conforming changes (or used other legal 
mechanisms) to modify its hazardous waste program.

A. To Which Facilities Will the Proposed Rule Apply?

    This proposed rule, when finalized, would apply only to the IBM 
East Fishkill facility in Hopewell Junction, NY. Further, the 
regulatory modification being proposed is intended to only apply to a 
portion of the total F006 electroplating sludge generated at the 
facility (specifically, the sludge designated as B/690 West Complex 
sludge, which is the subject of the Final Project Agreement (FPA) 
included in the docket for this proposal). However, it should be noted 
that IBM expects to implement waste minimization technologies to remove 
hazardous constituents from the sludge generated at a separate 
wastewater treatment plant (i.e., the B/386 East Complex), pursue 
another FPA (or addendum to the current FPA), and include the B/386 
East Complex wastewater treatment sludge in this XL pilot project. The 
regulatory modification being proposed today has been crafted to allow 
for the future inclusion of the B/386 East Complex sludge in this XL 
project without an additional rulemaking. A more detailed discussion of 
the regulatory modification is presented in section III. E. A more 
detailed discussion of the sludge that is the focus of this XL project 
is presented in Section III. B. 3.

B. What Problems Will the IBM East Fishkill XL Project Attempt to 
Address?

    IBM believes RCRA oversight (and the regulatory requirements such 
oversight imposes) does not provide an increase in protection of human 
health and the environment when applied to the recycling scenario 
involving the use of IBM's wastewater treatment sludge as an ingredient 
in the production of cement. Rather, IBM believes the RCRA regulatory 
requirements serve as a disincentive to an otherwise viable and 
environmentally sound recycling scenario.
1. Background on the Definition of Solid Waste
    On January 4, 1985 the Agency promulgated the basic regulatory 
definition of solid waste (see 50 FR 614). Under the current RCRA 
regulatory framework, a hazardous secondary material \1\ being recycled 
may meet the definition of solid waste, depending on the type of 
secondary material (e.g., spent material, by-product, sludge) and the 
type of recycling (e.g., reclamation, use as an ingredient, use 
constituting disposal). (See 40 CFR 261.2.) As provided at 40 CFR 
261.2(e)(1)(i), a hazardous secondary material that is used as an 
ingredient in an industrial process to make a product is excluded from 
the definition of solid waste. However, 40 CFR 261.2(e)(2)(i) limits 
the (e)(1)(i) exclusion such that materials used to produce products 
that are applied to the land are not excluded. As explained in the 
preamble to the January 4, 1985 rulemaking, RCRA jurisdiction over 
hazardous secondary materials that are used on the land is based in 
part on the fact that the environmental impact of such use is basically 
the same as the environmental impact of conventional land disposal (see 
50 FR at 628). Indeed, the potential impact in many cases is worse 
because there are more potential human environmental exposure pathways 
for waste-derived products than there are for landfilled wastes (see 
Association of Battery Recyclers v. EPA, 208 F. 3d. 1047 (D.C. Cir. 
2000); 53 FR at 17605 (May 17, 1988)). Also, as a generalization, 
products that are used on the land are of relatively low value and 
seldom have product specifications that address the potential presence 
of hazardous constituents.
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    \1\ Throughtout this preamble, as done in many previous RCRA 
rulemakings, EPA uses the term ``secondary material'' as a 
convenient means of referring to a material that may or may not be a 
solid and hazardous waste when it is recycled. See footnote number 
4, 50 FR at 616 (January 4, 1985). Generally, ``secondary 
materials'' do not include virgin raw materials or products.
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    Therefore, a hazardous secondary material (such as IBM's F006 
wastewater treatment sludge) that is used as a legitimate ingredient to 
produce cement (presuming that the cement will be used on the land) is 
subject to regulation as a hazardous waste, including among other 
things, the need for a Hazardous Waste Manifest (and hazardous waste 
transporter), and possibly storage permits at the recycling facility 
(in this case, a cement manufacturer). And, while the waste-derived 
product (i.e., the cement made using the sludge as an ingredient) is 
exempt from any further regulatory requirements pursuant to 40 CFR 
266.20(b), assuming it meets the applicable treatment standards (which 
are the same standards the waste would have to meet prior to land 
disposal), the waste-derived product remains a hazardous waste within 
RCRA jurisdiction. It is the application of this regulatory framework 
that IBM believes provides no environmental benefit and serves as a 
disincentive to an environmentally sound recycling scenario for the 
sludge that is the focus of today's proposal.
2. Legitimate Recycling Determination
    Inherent to the regulatory definition of solid waste as it applies 
to hazardous secondary materials that are recycled is the concept that 
the recycling actually be ``legitimate recycling'' as opposed to ``sham 
recycling,'' which is treatment and/or disposal (including disposal 
through incorporation into a product) of a hazardous secondary material 
under the guise of recycling (50 FR at 638, January 4, 1985). This 
determination is not always clear-cut and often involves assessing the 
intent of the activity by evaluating circumstantial evidence. 
Basically, the determination rests on whether the secondary material is 
sufficiently ``commodity-like.'' This entails an evaluation of whether 
the material truly has value as a raw material/product and whether the 
recycling process is likely to release hazardous constituents (or 
otherwise pose risks to human health and the environment) that are 
different from or greater than those from the processing of an 
analogous raw material/product. The criteria used to evaluate whether a 
secondary material is legitimately being recycled are presented in an 
April 26, 1989 memorandum from Sylvia K. Lowrance, Director of the 
Office of Solid Waste, to the Hazardous Waste

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Management Division Directors in Regions I-X, entitled ``F006 
Recycling.'' \2\ The following discussion presents the criteria and 
EPA's evaluation of the criteria in the context of the recycling 
scenario that is the focus of this XL project. It should be noted that 
these criteria are intended to be used as a means of focusing the 
overall consideration of a specific recycling scenario and are meant to 
be taken as a whole (which, in effect, means that a negative response 
to one or more criteria does not necessarily mean that the recycling 
scenario is a sham).
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    \2\ The criteria contained in the memorandum were consolidated 
from preamble discussions presented in various Federal Register 
notices. Specifically, the criteria are drawn from 53 FR at 522 
(January 8, 1988); 52 FR at 17013 (May 6, 1987); and 50 FR at 638 
(January 4, 1985). This memorandum is included in the docket for 
today's proposal.
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    (1) Is the secondary material similar to an analogous raw material 
or product?
    This is discussed in detail below.
    (2) What degree of processing is required to produce a finished 
product?
    The sludge must undergo significant processing to produce a 
finished product, consistent with the processing the analogous raw 
materials must undergo to produce cement. No special processing of the 
sludge is required.
    (3) What is the value of the secondary material?
    The sludge will likely have a negative monetary value (IBM expects 
to pay a fee to a cement manufacturer receiving the sludge). However, 
the Agency acknowledges that the pure economics of a recycling scenario 
are difficult to gauge because RCRA regulations are a very real factor 
influencing the economics of such scenarios. If RCRA did not exist, it 
is quite possible that a cement manufacturer would pay to receive such 
a high-calcium containing material (comparable to the price paid for 
analogous raw materials, such as limestone). However, due to the 
existence of the RCRA regulations which, in effect, impose costs on IBM 
for the management of the sludge, a cement manufacturer can charge a 
fee for the sludge (presumably less than the fee charged by a disposal 
facility), giving the sludge a negative value.
    (4) Is there a guaranteed market for the end product?
    Cement is a widely available commercial product with a proven 
market. As the applications for cement vary, so do specifications for 
the various products required. Customers of cement kilns will continue 
to demand that their product specifications be met whether or not IBM's 
sludge is among the raw materials used to manufacture their product. In 
the FPA for this project, IBM agreed that the cement kiln which 
recycles its sludge will provide to IBM a certification that the sludge 
delivered to the kiln (from the IBM East Fishkill facility) was used as 
an ingredient in the manufacture of cement in accordance with both 
product specifications and generally accepted cement industry 
standards. Accordingly, there will be a guaranteed market for cement 
which meets product specifications. If, however, the cement product 
fails to meet specifications due to the use of the sludge as an 
ingredient and cannot be sold (or reprocessed and sold), then it must 
be managed as a hazardous waste in accordance with all applicable RCRA 
regulations.
    (5) Is the secondary material handled in a manner consistent with 
the raw material/product it replaces?
    No. Consistent with the experimental nature of XL projects, the 
sludge will be managed more carefully than the raw material it 
replaces. As agreed to in the Final Project Agreement (FPA), IBM will 
ensure that the sludge is managed to prevent releases to the 
environment. IBM has assured the other signatories to the FPA that a 
cement manufacturer must agree to manage the sludge protectively to 
receive the sludge. Accordingly, management of the sludge to prevent 
releases is being included as a condition of the site-specific 
exclusion being proposed today. Another condition of the exclusion is a 
requirement for IBM to submit semi-annual reports to the agencies 
detailing the volumes of sludge recycled as part of this XL project.
    (6) Other relevant factors.
    This is a broad criterion that allows for the consideration of 
other factors not otherwise evaluated. In this specific case, the fact 
that this recycling scenario was conducted previously and deemed to be 
successful by IBM (as discussed in section III. B. 3.) was another 
factor considered. Also, the fact that this recycling scenario will be 
conducted in the context of an XL project, which assumes a certain 
level of regulatory oversight by the Regional office and State 
regulatory agency, was considered.
    For hazardous secondary materials that are used as ingredients to 
produce a product, one of the key considerations in evaluating whether 
the secondary material is similar to an analogous raw material is a 
comparison of the constituent compositions of both the hazardous 
secondary material and the analogous raw material it replaces.\3\ 
Naturally, the hazardous secondary material must contribute useful or 
necessary constituents to the production of the product, as do the 
analogous raw materials. However, to the extent that the hazardous 
secondary material contains unnecessary (to the product or production 
process) hazardous constituents at higher concentrations than found in 
the analogous raw materials, or hazardous constituents not found in the 
analogous raw materials, one could infer that the constituents are 
being treated or disposed under the guise of recycling, even if some 
portion of the secondary material is useful to the production process 
(see the April 26, 1989 memorandum from Sylvia K. Lowrance, Director of 
the Office of Solid Waste, to the Hazardous Waste Management Division 
Directors in Regions I-X entitled ``F006 Recycling'' available in the 
docket for this proposal).
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    \3\ In this case, the Agency notes that by comparing a secondary 
material to an analogous raw material, one can ascertain the 
expected impact of using the secondary material as an ingredient 
instead of the raw material. If the physical/chemical compositions 
of both materials are comparable, the product made with the 
secondary material would be expected to have the same 
characteristics and qualities as the product made with the analogous 
raw material. Similarly, the environmental impact (e.g., emissions 
to air or water) of the actual processing of the secondary material 
would be expected to be the same as from the processing of the 
analogous raw material.
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    Several considerations are worth noting concerning the similarity 
of IBM's sludge to the analogous raw materials used to produce cement. 
A comparative analysis of representative samples of IBM's wastewater 
treatment sludge and samples of analogous raw materials (which, in this 
case, is taken to be the combination of all the feedstocks that 
normally make up the feedstream to the cement manufacturing process 
rather than an individual component, such as limestone) from various 
cement manufacturing facilities indicates that certain heavy metals 
(specifically lead, cadmium,\4\ and chromium) may be present at 
slightly higher concentrations in the sludge than in the analogous raw 
materials. Additionally, the wastewater treatment sludge contains 
somewhat higher levels of fluoride than found in the analogous raw 
materials. However, given the variability in both IBM's wastewater 
treatment sludge and in the raw material

[[Page 30354]]

feedstocks used by cement manufacturers, and the very low levels of 
hazardous metals in the sludge, the Agency agrees with IBM that the 
slightly higher levels are not significant but rather are consistent 
with the variability typically found in raw materials mined from 
different sites. In other words, one could expect to find analogous raw 
materials (e.g., from various mining sites) that contain equivalent or 
even higher levels of the hazardous constituents found in IBM's sludge. 
(The data used in comparing IBM's sludge to the analogous raw materials 
are contained in the Final Project Agreement, which is included in the 
docket for today's proposal.)
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    \4\ It should be noted that IBM has conducted an inventory of 
the hazardous constituents used in its production processes and 
found that cadmium is not used. IBM's explanation for the presence 
of cadmium in the wastewater treatment sludge is that the cadmium 
may be a contaminant in the lime (i.e., calcium hydroxide) used in 
its wastewater treatment process. Similarly, beryllium may be found 
in the sludge at measurable levels, even though beryllium is not 
used in the manufacturing process and is likewise assumed to be a 
contaminant in the lime used to precipitate the metals from the 
wastewaters.
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    As for the fluoride content of the sludge, it should be noted that 
fluoride is not a regulated constituent in F006, nor is it a RCRA 
Appendix VIII hazardous constituent. While fluoride is normally present 
in cement, IBM's sludge does have notably higher concentrations of 
calcium fluoride than are typically found in analogous raw materials. 
Consequently, only a portion of the calcium needed for the production 
of cement can be derived from the sludge because fluoride 
concentrations above a certain threshold may have adverse effects on 
the cement product (or on concrete made using the cement product). 
Thus, the sludge could not function as the sole source of the calcium 
in the aggregate of raw materials fed to a cement kiln because the 
attendant fluoride concentration could exceed that specified for the 
product. However, the same point may be made with regard to traditional 
feedstocks used in the production of cement, although the unwanted 
constituent may be one other than fluoride.
    It is a standard practice in the cement industry to combine the 
various raw material feedstocks that comprise the aggregate composite 
fed to a cement kiln so that essential components are supplied without 
resulting in a greater-than-desirable concentration of unwanted 
constituents (as determined by the product specifications being met), 
as well as to maximize the cost-effectiveness of the manufacturing 
process. To do this, a cement manufacturer would analyze individual 
feedstocks to determine their constituent make-up and then determine 
the respective proportions of the feedstocks to be used in preparation 
of the aggregate composite feedstream. For example, a shipment of 
limestone may be analyzed for its calcium content and be found to also 
have a high iron (also an essential constituent in cement) content. 
When this shipment of limestone is used as a source of calcium to make 
up the feedstream, less iron from another source (e.g., from mill 
scale, an iron rich by-product of the steel manufacturing process) will 
need to be added to the feedstream. The Agency believes that, in this 
specific instance, the limitation on the use of the sludge as a source 
of calcium, due to its fluoride content, is consistent with normal 
manufacturing practices rather than an indication that the sludge is 
not a viable ingredient in the manufacture of cement. The Agency 
believes that, up to a certain limit, the calcium from the IBM's sludge 
will perform as effectively in the production of cement as traditional 
calcium-bearing feedstocks. The Agency notes that the proportion of 
traditional calcium-bearing feedstocks may similarly be limited by the 
levels of constituents (other than calcium) that they contain.
    Another consideration in the legitimacy determination concerns the 
ratio of sludge to analogous raw materials. In general, the Agency 
would consider a low ratio of hazardous secondary material to normal 
feedstocks to potentially be an indication of sham recycling. For 
example, a low ratio suggests that the hazardous secondary material may 
not truly be similar to the analogous raw materials. Moreover, it 
suggests that the hazardous secondary material is merely being diluted 
and disposed of by incorporation into a product. A low ratio of 
hazardous secondary material to normal feedstocks might also imply that 
the hazardous secondary material contributes so little as to be 
otherwise unnecessary to the production of the product (see 50 FR at 
638, January 4, 1985). In the case of this XL project, however, it is 
important to note that IBM currently only generates approximately 300 
tons/year of the sludge that is the subject of this XL project, and a 
typical cement manufacturer processes more than 60,000 tons/year of raw 
materials. Therefore, the overall ratio of sludge to raw material 
feedstocks could be, at a minimum, approximately 1:200. Although the 
ratio of IBM's sludge to normal cement feedstocks could be as low as 
1:200, in reality it is expected that the sludge will make up a higher 
percentage of the overall feedstream on a per batch basis because the 
sludge is expected to be processed soon after the cement manufacturer 
receives it (as opposed to being stored long enough to be evenly 
distributed among all batches of cement). Thus, the actual ratio will 
primarily depend on the frequency of the shipments of sludge from IBM 
to the cement manufacturer, but it may be relatively small. Also, as 
discussed further in section III. B. 3., it should be noted that it is 
likely that the sludge generated by the B/386 East Complex wastewater 
treatment plant will also be included in this XL pilot project in the 
future, assuming the sludge achieves the same low levels of hazardous 
constituents and is the subject of another Final Project Agreement 
(FPA) or addendum to the current FPA. The estimated volumes of this B/
386 East Complex sludge is projected to be 3,900 tons per year. An 
additional 2,400 tons of non-hazardous wastewater treatment sludge 
(also generated in the East Complex wastewater treatment plant, but in 
a system segregated from the treatment of the electroplating 
wastewaters) may be recycled as an ingredient in cement. While this 
sludge is non-hazardous and therefore does not require any Federal 
regulatory flexibility to be recycled as an ingredient in cement, it 
should be noted that when combined with the total volumes of sludges 
that may, in the future, be recycled as an ingredient in cement, the 
total approaches 6,600 tons per year, much more consistent with the 
volumes of raw material feedstocks normally used to produce cement.
    Taking into consideration all the criteria, as discussed above, EPA 
and NYSDEC have determined that the use of IBM's sludge as an 
ingredient in cement is legitimate recycling in the context of this XL 
project. It should particularly be noted that the Agency has made this 
determination of ``legitimate recycling'' only in the context of this 
XL project. The intent of this pilot project is to test an alternative 
approach from the current regulatory framework, and by its very nature, 
assures some level of project oversight by the EPA Region 2 office and 
NYSDEC (as discussed above, this was considered as an ``other relevant 
factor''). Accordingly, the analysis done by EPA, as summarized above, 
which resulted in a legitimacy determination was a necessary element of 
this XL project. Normally, however, a determination of legitimate 
recycling (as the basis for an exclusion from the definition of solid 
waste) is a self-implementing determination (i.e., the exclusion 
requires no prior approval from EPA). Nevertheless, written concurrence 
from the appropriate regulatory agency that a given recycling activity 
is legitimate is strongly encouraged because persons claiming an 
exclusion from the definition of solid waste must be able to support 
their claim in the event of an enforcement action (see 40 CFR 
261.2(f)).

[[Page 30355]]

3. Site-Specific Considerations at the IBM East Fishkill Facility
    The IBM East Fishkill facility in Hopewell Junction, NY conducts 
semiconductor research and development operations, as well as the 
manufacture of semiconductor and electronic computing equipment. As a 
result of these process operations, which include electroplating 
operations, wastewaters containing dissolved heavy metal and fluoride 
compounds are generated and subsequently treated in two separate on-
site fluoride/heavy metal (F/HM) wastewater treatment facilities, an 
East Complex (B/386) and a West Complex (B/690). The sludge generated 
from electroplating wastewaters by both wastewater treatment facilities 
is designated as F006 Hazardous Waste. The sludge generated by the 
wastewater treatment facility that serves the West Complex of the 
facility, identified by IBM as the Building 690 (B/690) F/HM Wastewater 
Treatment Facility, is the focus of this XL project. In addition to the 
F006 generated, the East Complex (B/386) generates a non-hazardous 
wastewater treatment sludge in a segregated wastewater treatment system 
that does not process electroplating wastewaters (IBM segregated the 
electroplating wastewaters from other facility wastewaters to minimize 
the amount of hazardous waste being generated).
    Of the total volume of approximately 825 tons per year of F006 
waste currently generated by the IBM East Fishkill facility, 
approximately 300 tons per year are generated by the B/690 West Complex 
wastewater treatment facility and are the subject of today's proposal. 
IBM has determined that the sludge generated by the B/386 East Complex 
wastewater treatment facility is not, at this time, a viable ingredient 
in cement production. However, as the Final Project Agreement states, 
IBM will consider (should the implementation of this XL project prove 
successful) implementing various waste minimization measures to improve 
the quality of the B/386 East Complex sludge, making it a suitable 
ingredient in cement production as well, and initiating steps to 
include the B/386 East Complex sludge in this XL project.
    Since the signing of the FPA and during the development of this 
proposal, IBM's projections for production demand for the next few 
years has grown significantly. As part of planning for scaling up their 
production capability, IBM is considering several options to address 
the increased wastewater treatment capacity needed to accommodate the 
projected increase in wastewater resulting from an increase in 
production. One of these options is to implement waste minimization 
technologies to remove hazardous constituents (e.g., lead) from the B/
386 East Complex electroplating wastewater stream prior to 
precipitating the sludge and subsequently including the B/386 East 
Complex sludge in this XL pilot project. While the volume of 
electroplating sludge generated in the B/386 East Complex wastewater 
treatment plant is currently approximately 525 tons per year, due to 
the expected increase in production and corresponding increase in 
sludge generation the volume is estimated to increase to 3,900 tons per 
year. An additional estimated 2,400 tons of non-hazardous sludge 
generated in the B/386 East Complex wastewater treatment plant may also 
be included; however, the Agency notes that because this sludge is non-
hazardous, no Federal regulatory flexibility is required to recycle the 
sludge as an ingredient in cement. Taken all together, the IBM facility 
could ship approximately 6,600 tons per year of sludge to be used as an 
ingredient in cement (300 tons/year of sludge currently included in the 
pilot project, plus 3,900 tons/year of sludge that may become included 
in this pilot project, plus 2,400 tons/year of non-hazardous sludge) 
once production has increased. While today's proposal is focused 
primarily on the 300 tons/year of B/690 West Complex sludge that is 
currently the subject of the FPA, the Agency is also soliciting comment 
on the possible future inclusion of the 3,900 tons of B/386 East 
Complex sludge in this XL pilot project and the exclusion from the 
definition of solid waste that is being proposed to implement this 
project. In considering comments, the reader should assume that the 
threshold levels for hazardous constituents in the sludge and other 
conditions of the exclusion being proposed for the B/690 West Complex 
sludge will remain the same for the B/386 East Complex sludge, the only 
difference being the increase in the volume of sludge being recycled. 
Should the B/386 East Complex sludge become comparable to the B/690 
West Complex sludge, and IBM seeks to include the B/386 East Complex 
sludge in this XL pilot project, IBM will undertake steps to initiate a 
new Final Project Agreement or an addendum to the existing FPA, which 
will undergo the same process of stakeholder outreach and solicitation 
of comment on the Draft FPA (or addendum) as was done for the existing 
FPA. Upon signature of the FPA (or addendum) by representatives of EPA, 
NYSDEC, and IBM that would include the B/386 East Complex sludge in 
this XL pilot project, the B/386 East Complex sludge may be recycled 
pursuant to the exclusion being proposed today, assuming the conditions 
are met.
    Also, it should be noted that IBM has recycled both the B/386 East 
Complex and B/690 West Complex sludges as an ingredient in cement in 
the past. In 1987, IBM East Fishkill petitioned NYSDEC and EPA Region 2 
to allow the recycling of the B/690 West Complex sludge as an 
ingredient in cement outside of RCRA regulatory controls. Both NYSDEC 
and EPA agreed that the sludge could be used as a legitimate ingredient 
in cement and concurred that the sludge would be excluded from the 
definition of solid waste and therefore, RCRA regulations would not be 
applicable. In 1988, IBM contracted with a cement manufacturer (which 
has since been sold and is now operated under new management as a 
different company) to use the sludge as an ingredient in cement. This 
recycling practice continued until 1991. In 1991, the original 
regulatory interpretation granting an exclusion for the sludge was re-
evaluated and it was subsequently determined that because cement is a 
product presumed to be applied to the land, the sludge was not excluded 
from the definition of solid waste. At that time (and despite the 
apparent success of the recycling program), IBM decided to end the 
sludge recycling program. This prior experience demonstrated the 
technical and economic viability of using IBM's wastewater treatment 
sludge as an ingredient in cement and was considered by EPA as a 
``relevant factor'' in determining the legitimacy of the recycling 
scenario.

C. What Solution Is Proposed by the IBM East Fishkill XL Project?

    To overcome the disincentive posed by RCRA regulatory requirements 
to the recycling of its sludge, IBM has proposed to specifically 
exclude the B/690 West Complex sludge from the definition of solid 
waste and thus, from RCRA regulatory jurisdiction. In effect, the 
sludge would be excluded as an ingredient in an industrial process to 
make a product (40 CFR 261.2(e)(1)(i)) without application of the 
limitation on this exclusion for materials used to produce products 
used in a manner constituting disposal (40 CFR 261.2(e)(2)(i)). Based 
on their previous experience with this recycling scenario (as discussed 
above in Section III. B. 3.), IBM believes the recycling of the B/690 
West Complex sludge as an ingredient in cement is protective of human 
health

[[Page 30356]]

and the environment and benefits the environment through conservation 
of finite natural resources, as well as the conservation of hazardous 
waste landfill space for hazardous wastes that are not amenable to 
environmentally sound recycling. Further, IBM believes RCRA regulatory 
controls provide no additional environmental protection, but rather 
serve as such a disincentive to recycling that sludge which could 
otherwise be beneficially used to manufacture a product is instead 
disposed of in a landfill. Rather than seek a delisting pursuant to 40 
CFR 260.22 (for which the Agency would, in general, evaluate whether 
the sludge should be designated a hazardous waste and if not, remove 
the specific wastestream from the scope of the hazardous waste listing 
description through a rulemaking), IBM believed the best approach would 
be to ``test'' the need for RCRA jurisdiction over this sludge when it 
is recycled into cement. Therefore, IBM has opted to work with the 
Agency, NYSDEC, and interested stakeholders to develop and implement a 
pilot project under Project XL that will assess whether the B/690 West 
Complex sludge can be used as an ingredient to produce cement in an 
environmentally sound manner without RCRA Subtitle C regulatory 
controls and to develop information that will contribute to possible 
future regulatory actions by the Agency regarding the management of 
F006 wastes.

D. What Regulatory Changes Will Be Necessary To Implement This Project?

    To implement this XL project, the Agency is proposing in today's 
notice to provide a site-specific exclusion in 40 CFR 261.4(a) (i.e., 
``Materials which are not solid wastes.'') for the wastewater treatment 
sludge generated at the IBM East Fishkill facility when used as an 
ingredient in the production of cement. This site-specific exclusion 
will include conditions which reflect the intent to ``test'' whether 
this recycling scenario can be realized in an environmentally sound 
manner and to gather a portion of the data needed to make an informed 
determination concerning the possible adoption of the regulatory 
flexibility on a national level.

E. Why Is EPA Supporting This Approach To Removing the Electroplating 
Sludge From the Definition of Solid Waste?

    The Agency agrees with IBM that this XL project has merit and has 
the potential to yield greater environmental benefits should this 
exclusion be adopted on a national basis. Project XL offers the 
opportunity for the Agency to test its belief that this recycling 
scenario can be protective of human health and the environment outside 
of RCRA regulatory control. Further, this is the type of pilot project 
for which Project XL was conceived, to provide the opportunity to 
explore alternative regulatory approaches that differ from the current 
regulatory framework.
    EPA notes that F006 is a very large volume hazardous wastestream 
nationwide. (In an October 7, 1998 study prepared by EPA's Office of 
Solid Waste and Emergency Response (OSWER), the amount of F006 
generated in the US per year was estimated to range from 360,000 to 
500,000 tons of dry weight equivalent.) A large portion of this 
wastestream is undoubtedly more amenable to other forms of recycling 
(e.g., recovery of metal values) than for use as an ingredient in 
cement, and some portion may prove to be inappropriate for any current 
recycling technology; however, the Agency believes that even if a small 
portion of this total volume of sludge (as well as other similar 
wastestreams) proves to be sufficiently similar to IBM's B/690 West 
Complex sludge to legitimately be recycled in this manner, 
environmental benefits could result. Although this XL project will 
provide data regarding the effectiveness and safety of using IBM's 
wastewater treatment sludge as an ingredient in the manufacture of 
cement, EPA anticipates that additional data on other F006 sludges 
would need to be collected prior to developing a national rulemaking 
for this particular recycling scenario.
    The Agency also notes that the drafting of the regulatory text 
warrants particular attention by commenters on this proposal. As 
discussed earlier, the intent of this regulatory modification is to 
allow for the signed FPA to be implemented (after the State also makes 
the necessary changes to its hazardous waste program to likewise allow 
for this pilot project to be implemented). However, the regulatory text 
being proposed would apply more broadly than the project described by 
the current FPA. Specifically, the conditional exclusion being proposed 
is not limited to the sludge generated in the B/690 West Complex, but 
rather applies generically to wastewater treatment sludge generated at 
the IBM East Fishkill facility. This is being done in anticipation of 
the inclusion of the sludge generated in the B/386 East Complex as part 
of this pilot project, after the signing of a new FPA or addendum to 
the existing FPA. Normally, the Agency would wait until the new FPA (or 
addendum) has been developed and signed before undertaking a regulatory 
modification to include the additional wastes subject to the new FPA 
(or addendum). However, because the exclusion being proposed today 
includes conditions that address the concentration levels of hazardous 
constituents in the sludge, as well as protective management practices 
and data gathering and reporting requirements, that are designed to 
ensure that the sludge will not pose an increase in risk to human 
health and the environment during this pilot project, the Agency 
believes it makes sense to propose the regulatory modification more 
broadly to allow for the inclusion of the B/386 East Complex sludge 
immediately upon signature of the new FPA (or addendum). EPA believes 
that the only potential concern that may arise by the inclusion of the 
B/386 East Complex sludge would be the additional volumes of the B/386 
East Complex sludge (which are estimated to be an additional 3,900 
tons/year). Therefore, the Agency is specifically soliciting comment on 
the potential inclusion of the additional volume of sludge in this 
pilot project, as well as on whether it is appropriate to propose to 
modify the regulations to accommodate a potential future addendum to 
the existing FPA (or a new FPA) that would bring additional volumes of 
sludges within the scope of the exclusion.

F. How Have Various Stakeholders Been Involved in This Project?

    IBM understands that stakeholder involvement is an integral part of 
the XL process and has encouraged interested stakeholders to pursue an 
active role in the development of this XL project. In addition to 
contacting a broad base of potential stakeholders in the local 
community, IBM has and commits to continue to conduct outreach to a 
regional and national cross-section of potentially interested parties. 
IBM has also undertaken several initiatives in an effort to solicit 
interest in the XL project from a targeted audience of environmental 
groups. For example, on April 26, 2000, IBM gave a presentation on this 
XL project followed by a question and answer session to the Dutchess 
County Environmental Management Council (EMC), which is comprised of 21 
representatives who advise their local governments and citizens on 
environmental issues. Similarly, IBM made a presentation on the XL 
project to the Town of East Fishkill Conservation Advisory Council 
(CAC). Following the one-hour presentation and discussion session, 
there was a general consensus among the CAC members that the project 
should be supported. Finally, IBM

[[Page 30357]]

retained the services of the Atlantic States Legal Foundation, Inc. (an 
environmental advocacy group) to assist with the involvement of 
stakeholders by facilitating notification of public meetings and 
coordinating the input of interested stakeholders in the development of 
the Final Project Agreement.
    EPA notes that should IBM seek to include the additional volume of 
sludge generated at the East Complex wastewater treatment plant (i.e., 
B/386 East Complex sludge) in this pilot project, the same efforts to 
seek stakeholder involvement will be an integral part of the 
development of the new FPA (or addendum to the current FPA) that will 
allow for the additional sludge to be included in the pilot project.

G. How Will This Project Result in Cost Savings and Paperwork 
Reduction?

    The IBM East Fishkill facility will continue to be regulated as a 
Large Quantity Generator due to the volume of hazardous wastes (not 
subject to this XL project) generated at other parts of the facility. 
Therefore, IBM will continue to have similar paperwork requirements. 
Additionally, given the nature of a pilot project, IBM will be required 
to report additional information as a means of evaluating this pilot 
project and to assist the Agency by providing some of the information 
necessary to evaluate whether similar regulatory flexibility should be 
transferred to the national program. This XL project initially 
addresses only a relatively small volume of wastewater treatment sludge 
(approximately 300 tons/year). Therefore, the immediate cost savings to 
the IBM East Fishkill facility resulting from this XL project are not 
expected to be great, though some savings will be realized. The 300 
tons/year of wastewater treatment sludge that EPA is today proposing to 
exclude from the definition of solid waste currently costs the IBM East 
Fishkill facility approximately $27,000 to dispose of in a permitted 
hazardous waste landfill in Canada. This amount will be saved as a 
result of finalizing today's proposed exclusion (although IBM expects 
to pay some amount to the cement manufacturer for recycling the sludge 
as an ingredient in cement). An additional $8,000 (approximately) will 
be saved from the New York State waste management fees charged for 
hazardous wastes disposed in a landfill ($27/ton/year of waste). 
Because IBM expects to pay for the transportation of the sludge to the 
cement manufacturing facility, there are no notable savings in 
transportation costs. The IBM East Fishkill facility expects to save a 
total of $35,000 per year as a result of this proposed XL project. The 
Agency notes, however, that should the projections for increased 
production and consequent sludge generation prove accurate, and the 
expected addition of the B/386 East Complex sludge in this pilot 
project occur, the total volume of sludge that would otherwise be 
subject to hazardous waste management costs could be approximately 
4,200 tons per year, with potential savings (including both disposal 
fees and New York State waste management fees) of $500,000 per year.
    EPA, as well as NYSDEC, will benefit from some paperwork reduction 
and cost savings by not having to process and track additional 
manifests and export documents that will otherwise have to be processed 
without this XL project. Again, however, these cost savings and 
paperwork reductions will be limited because of the other hazardous 
wastes generated at the facility.
    This project has the potential to result in significant cost 
savings and paperwork reduction if this pilot project proves successful 
and the regulatory flexibility is promulgated on a national basis. On a 
national level, the overall cost and paperwork reductions that could be 
realized may be more significant, assuming wastewater treatment sludges 
generated by other facilities are amenable to this type of recycling. 
The Agency would need to collect additional data on a wider cross-
section of F006 sludges prior to developing a national rulemaking for 
this type of recycling scenario.

H. What Are the Terms of the IBM East Fishkill XL Project and How Will 
They Be Enforced?

    As stated earlier, to allow for the implementation of the XL pilot 
project, EPA is today proposing to modify the current regulatory 
framework in 40 CFR 261.4(a) to provide a site-specific exclusion from 
the regulatory definition of solid waste (and thus, RCRA regulatory 
jurisdiction) for IBM's B/690 West Complex wastewater treatment sludge 
that is used as an ingredient in the production of cement. NYSDEC 
likewise intends to modify its State hazardous waste program to allow 
for the same site-specific exclusion from regulatory controls.\5\ The 
Agency intends that the exclusion, once finalized, will apply to all 
the wastewater treatment sludge resulting from the B/690 West Complex 
wastewater treatment facility that will be used as ingredients in the 
production of cement, including those sludges that are in the process 
of being generated, sludges that result from wastewaters already in the 
wastewater treatment system, and sludges that have been removed from 
the wastewater treatment system and are being stored pending off-site 
transportation.
---------------------------------------------------------------------------

    \5\ Implementation of this XL pilot project may be expedited 
through the issuance of an Enforcement Directive by NYSDEC while the 
project-specific State rulemaking is in process. Under NYSDEC's 
program, as long as the sludge remains a regulated hazardous waste 
under NYSDEC's hazardous waste regulations, it is exempt from 
regulation under NYSDEC's solid waste regulations. Once NYSDEC's 
project-specific rulemaking is final, the sludge will conditionally 
cease to be a solid or hazardous waste for the purposes of NYSDEC's 
hazardous waste program. However, the sludge would then become 
subject to regulation as a solid waste under NYSDEC's solid waste 
program (6NYCRR Part 360) unless a Beneficial Use Determination 
(BUD) has been issued. If a BUD is issued by NYSDEC, the sludge 
would be excluded from being a solid waste under NYSDEC's solid 
waste program upon arrival at the recycling facility, such that the 
recycling facility (i.e., the cement manufacturer) will not require 
a NYSDEC permit as a solid waste management facility. Prior to 
arrival, the sludge would be subject to regulation as a solid waste 
under 6NYCRR Part 360. NYSDEC expects to issue a BUD when the 
exclusion from the State hazardous waste regulations becomes 
effective.
---------------------------------------------------------------------------

    Through the development of the Final Project Agreement (FPA), IBM 
has agreed to comply with several key criteria as conditions for this 
exclusion, which will be included in the regulatory language. These 
conditions are focused on ensuring continued protection of human health 
and the environment, documenting the environmental benefits resulting 
from the removal of RCRA Subtitle C regulatory control over the 
recycling of the B/690 West Complex wastewater treatment sludge as an 
ingredient in cement, and gathering the data and other information that 
may assist the Agency in making a determination regarding the possible 
transfer of this site-specific exclusion to the national program in the 
future. Such data may be useful in supporting future EPA regulatory 
initiatives regarding the recycling of F006 wastestreams to make cement 
products, however, the Agency would need to collect additional 
information on a broader cross-section of F006 prior to developing a 
national rulemaking for this particular recycling scenario.
    As conditions of the site-specific exclusion, IBM must comply with 
the following:
    (1) Analysis (using the methods specified in 40 CFR Part 264, 
Appendix IX) of the constituent concentrations in the B/690 West 
Complex wastewater treatment sludge to ensure that the sludge being 
recycled remains consistent with the sludge evaluated in

[[Page 30358]]

developing this XL project and that it meets the threshold levels 
discussed below. IBM must perform this analysis every three months for 
an initial 12-month period. (Note that some or all of these data may be 
derived from the time period immediately preceding the effective date 
of this rule.) Following the initial 12-month period (i.e., four 
sampling/analysis events), IBM must analyze the sludge every six months 
for the duration of the XL project. These analytical data (including 
both the 3-month and 6-month sampling/analysis events) must be 
submitted to the Region 2 office and NYSDEC every six months. 
Additionally, after any change in the manufacturing process or 
wastewater treatment process that could affect the chemical composition 
of the wastewater treatment sludge, sampling and analysis must be 
conducted.
    (2) Management standards for the sludge to ensure that the sludge 
is actually recycled rather than inadvertently released to the 
environment, and to ensure that the sludge is managed as a commodity.
    (3) Tracking of the sludge, to ensure that the sludge reaches the 
cement manufacturing facility. In general, under the current hazardous 
waste regulations (see 40 CFR Parts 262, Subpart D and 263, Subpart B), 
wastes are tracked through the use of a hazardous waste manifest which 
accompanies the waste shipment.\6\ The regulatory requirements are 
designed to ensure that the waste is actually received by the facility 
intended to receive the waste, with built-in time limits requiring a 
generator to proactively address a shipment that has not been received 
in a timely fashion. However, because this pilot project provides an 
exclusion from the definition of solid waste (and therefore from being 
a hazardous waste), the manifest requirements do not apply. 
Nevertheless, the Agency believes the need to track the wastewater 
treatment sludge still remains, to ensure that a shipment of sludge 
actually reaches its intended destination. However, the Agency does not 
believe that in this case a hazardous waste manifest, or a similar 
document, is the only means to ensure that the sludge is being shipped 
and received appropriately. Therefore, the Agency is allowing IBM the 
flexibility to develop a tracking system that, in effect, provides the 
same assurances that the hazardous waste manifest would provide. 
Specifically, this tracking system must include the following 
information: the date of shipment, volume of sludge being transported, 
where the sludge is being shipped, and the date that the shipment was 
received. IBM remains responsible for ensuring that the sludge is 
actually received and processed by the cement manufacturer.
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    \6\ Upon receipt of the waste shipment, the receiving facility 
must sign and return a portion of the manifest to the generator as 
acknowledgment of receipt of the waste. In the event that the 
generator does not receive notification that the waste has been 
received within 35 days, the generator must contact the transporter 
and/or the facility designated to receive the waste in an effort to 
ascertain the status of the waste shipment. If the generator does 
not receive acknowledgment that the waste has been received by the 
designated facility within 45 days of the date the shipment was 
received by the transporter, the generator must submit an Exception 
Report (see 40 CFR 262.42) to the appropriate EPA Regional office 
describing the efforts undertaken to locate the waste shipment and 
the results of these efforts.
---------------------------------------------------------------------------

    (4) Additional data collection and reporting on the volumes of 
sludge recycled as part of this XL project, and an accounting of the 
volume of analogous raw materials conserved, or alternatively, the 
increased volume in cement produced as a result of using the sludge as 
an ingredient.
    The threshold levels for the hazardous constituents in the sludge 
(one of the conditions of the exclusion) are derived based on six 
recent samples of the wastewater treatment sludge taken between 
February 1999 and June 2000. Given the analytical results, a standard 
statistical method \7\ was used to derive the actual threshold levels, 
using a 95% confidence level. These levels are not intended to be 
health-based levels. The threshold levels are intended to serve as a 
means to gauge the performance of the wastewater treatment process and 
the composition of the sludge, given that EPA's willingness to 
implement this pilot project was based in part on the very low levels 
of hazardous constituents in the sludge and given that this pilot 
project is premised on the sludge being comparable to the raw 
ingredients used to produce cement.
---------------------------------------------------------------------------

    \7\ The standard statistical method establishes a confidence 
interval that encompasses a certain percentage of the area beneath 
the bell curve for a normally distributed set of data. The 
confidence interval has an upper limit and a lower limit. This test 
was initially designed to determine if individual data points fall 
within a pre-established confidence interval. Data falling outside 
the interval are determined to be statistically invalid and are 
discarded. The test has also been adapted for use in establishing 
reasonable limits within which future data can reasonably be 
expected to fall.
    For the purposes of establishing an exceedance threshold, only 
the upper limit is used; the lower limit is not used. The upper 
limit is calculated as follows: (upper limit of confidence interval) 
= mean + t* (standard deviation).
    A standard statistical table was used to determine the value of 
`t' for each set of results based on the degrees of freedom (n - 1, 
where n is the number of results) and an upper limit of 0.05 (95%). 
As several of the samples had constituents that were not detected, a 
method had to be employed to handle these cases. Discarding non-
detected results would skew the calculated thresholds high and also 
increase the degree of error. A method that is typically used (and 
is used here) is to assume that the actual concentration of a 
constituent that was not detected falls somewhere between zero and 
the method detection limit. On average, these values are expected to 
equal one-half the method detection limit. Therefore, for all non-
detect values, one-half the method detection limit is substituted in 
the calculation of the mean and the standard deviation.
    The threshold level for amenable cyanides was derived by 
substituting the threshold level for total cyanides, which the 
Agency believes will adequately address any concerns regarding the 
possible presence of cyanides in the sludge.
---------------------------------------------------------------------------

    In addition to analyzing the sludge to ensure that the threshold 
levels for the hazardous constituents are met, EPA is requiring IBM to 
analyze for two additional hazardous constituents, specifically mercury 
and beryllium, which are not necessarily expected to be in the 
wastewater treatment sludge. While mercury is not used in the 
production process, it is used in the laboratory and could conceivably 
end up in the wastewater treatment sludge (although the Agency 
acknowledges that in all of the analyses of the sludge, mercury was not 
detected). Beryllium is also not used in the production process, nor 
anywhere else at the facility. However, as discussed earlier, it has 
been found in the sludge in measurable concentrations, presumably 
resulting as a contaminant in the lime used in the wastewater treatment 
process. IBM has agreed to analyze and provide data on both mercury and 
beryllium \8\ to the Agency to increase the available information on 
the sludge. Additionally, IBM has agreed that, should mercury or 
beryllium be found at significant levels in the sludge, the Agency may 
set appropriate threshold levels for these constituents as well, 
through a rulemaking to amend the site-specific exclusion from the 
definition of solid waste.
---------------------------------------------------------------------------

    \8\ The Agency notes that cadmium is also not used at the 
facility and so would not be expected to be in the wastewater 
treatment sludge. As in the case for beryllium, when cadmium is 
present in the sludge, it is presumably due to its presence in the 
lime used in the wastewater treatment process. Although the Agency 
is not setting a threshold limit for beryllium, it is setting a 
threshold level for cadmium (with agreement from IBM) because 
cadmium is one of the constituents for which F006 was specifically 
listed.
---------------------------------------------------------------------------

    The purpose of the periodic analysis is to serve as a check on the 
performance of the wastewater treatment process itself, as well as to 
ensure that the sludge is consistently within the threshold 
concentration levels for the hazardous constituents in the sludge. 
However, in the unlikely event that the quarterly, or semi-annual, 
analysis of the wastewater treatment sludge indicates that a specific 
batch of sludge exceeds one or more constituent thresholds, the pilot 
project will be temporarily suspended until subsequent

[[Page 30359]]

analysis (which can be performed immediately) of the sludge 
demonstrates that the thresholds are once again being met (i.e., the 
exclusion would not be applicable because the conditions were not met, 
and will continue to be non-applicable until IBM demonstrates that the 
conditions are again being met). The Agency acknowledges that the 
results of the analysis may not be known until after the sludge has 
already been received and processed by the cement manufacturer as an 
ingredient in cement (due to the materials handling logistics at the 
facility, IBM is unable to store the sludge on-site until the results 
of the analysis are known). Because the threshold levels are so low and 
because the sludge has demonstrated a relatively consistent 
composition, the Agency does not believe any action will be necessary 
to address the sludge that has already been received and processed into 
cement (in effect, that cement will have been ``grandfathered'' by the 
conditional exclusion). The Agency will, however, evaluate such 
failures to meet the threshold levels as part of its evaluation of the 
success of this pilot project.

I. How Long Will This Project Last and When Will It Be Completed?

    This project will be in effect for five years from the date that 
the final rulemaking becomes effective unless it is terminated earlier 
or extended by all Project Signatories (if the FPA is extended, the 
comments and input of stakeholders will be sought and a Federal 
Register notice will be published). Any Project Signatory may terminate 
its participation in this project at any time in accordance with the 
procedures set forth in the FPA. The project will be completed at the 
conclusion of the five-year anniversary of the final rulemaking or at a 
time earlier or later determined by the amount of information gathered 
to date and the interest of the parties involved. The proposed site-
specific exclusion that enables the implementation of this XL project 
contains a ``sunset provision'' that will effectively terminate the 
exclusion automatically after five years, unless further regulatory 
action is taken to extend the XL project (or end it sooner).
    Prior to, or at the completion of the project term, EPA and NYSDEC 
commit to evaluating the project. If the project results indicate that 
it was a success, EPA will consider making the site-specific exclusion 
permanent (through normal rulemaking procedures). EPA will also 
consider transferring the regulatory flexibility (or similar 
flexibility) to the national RCRA program (through normal rulemaking 
procedures), but such a national change would require more information 
than the Agency expects to gather from this XL project. Should on-going 
evaluation during the course of the XL project indicate that the 
project is not successful, EPA will promulgate a rule to remove the 
site-specific exclusion prior to the five-year sunset provision. 
However, as for any conditional exclusion, if at any time, should IBM 
or the cement manufacturer fail to meet all of the conditions of the 
site-specific exclusion, the exclusion is not applicable. Also, the 
Agency may promulgate a rule to withdraw the exclusion at any time, 
subject to the procedures agreed to in the Final Project Agreement 
(FPA), including, but not limited to, a substantial failure on the part 
of any Project Signatory to comply with the terms and conditions of the 
FPA or if the exclusion becomes inconsistent with future statutory or 
regulatory requirements.

IV. Additional Information

A. How To Request a Public Hearing

    A public hearing will be held, if requested, to provide an 
opportunity for interested persons to make oral presentations regarding 
this regulation in accordance with 40 CFR Part 25. Persons wishing to 
make an oral presentation on the site-specific rule to implement the 
IBM East Fishkill XL project should contact Mr. Sam Kerns or Ms. 
Aleksandra Dobkowski-Joy of the EPA Region 2 office, at the address 
given in the ADDRESSES section of this document. Any member of the 
public may file a written statement before the hearing, or after the 
hearing, to be received by EPA no later than July 6, 2001. 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 provided at 
the hearing will be available for inspection and copying during normal 
business hours at the EPA addresses for docket inspection given in the 
ADDRESSES section of this preamble.

B. How Does This Rule Comply With Executive Order 12866: Regulatory 
Planning and Review?

    Because this rule affects only one facility, it is not a rule of 
general applicability and therefore not subject to OMB review and 
Executive Order 12866. In addition, OMB has agreed that review of site-
specific rules under Project XL is not necessary.

C. Is a Regulatory Flexibility Analysis Required?

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
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 small governmental jurisdictions. This rule will not 
have a significant impact on a substantial number of small entities 
because it only affects the IBM facility in Hopewell Junction, NY and 
it is not a small entity. Therefore, EPA certifies that this action 
will not have a significant economic impact on a substantial number of 
small entities.

D. Is an Information Collection Request Required for This Project Under 
the Paperwork Reduction Act?

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

E. Does This Project Trigger the Requirements of the 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

[[Page 30360]]

Administrator publishes with the final rule an explanation of 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 applicable only to one facility in New 
York. 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.

F. RCRA & Hazardous and Solid Waste Amendments of 1984

1. Applicability of Rules in Authorized States
    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA program for hazardous waste within the 
State. (See 40 CFR Part 271 for the standards and requirements for 
authorization.) States with final authorization administer their own 
hazardous waste programs in lieu of the Federal program. Following 
authorization, EPA retains enforcement authority under sections 3008, 
7003 and 3013 of RCRA.
    After authorization, Federal rules written under RCRA (non-HSWA), 
no longer apply in the authorized state except for those issued 
pursuant to the Hazardous and Solid Waste Act Amendments of 1984 
(HSWA). New Federal requirements imposed by those rules do not take 
effect in an authorized State until the State adopts the requirements 
as State law.
    In contrast, under section 3006(g) of RCRA, new requirements and 
prohibitions imposed by HSWA take effect in authorized States at the 
same time they take effect in nonauthorized States. EPA is directed to 
carry out HSWA requirements and prohibitions in authorized States until 
the State is granted authorization to do so.
2. Effect on New York Authorization
    Today's proposed rule, if finalized, will be promulgated pursuant 
to non-HSWA authority, rather than HSWA. New York has received 
authority to administer most of the RCRA program; thus, authorized 
provisions of the State's hazardous waste program are administered in 
lieu of the Federal program. New York has received authority to 
administer the regulations that define solid wastes. As a result, if 
today's proposed rule to modify the existing regulations to provide a 
site-specific exclusion for IBM's wastewater treatment sludge is 
finalized, it would not be effective in New York until the State adopts 
the modification. It is EPA's understanding that subsequent to the 
promulgation of the final rule, New York intends to propose rules or 
other legal mechanisms to provide the exclusion. EPA may not enforce 
these requirements until it approves the State requirements as a 
revision to the authorized State program.

G. How Does This Rule Comply With Executive Order 13045: Protection of 
Children From Environmental Health Risks and Safety Risks?

    The Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) applies to any rule that: (1) is determined to be ``economically 
significant,'' as defined under Executive Order 12866; and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule, as defined by Executive Order 12866, 
and because it does not involve decisions based on environmental health 
or safety risks.

H. How Does This Rule Comply With Execute Order 13132: Federalism?

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial and 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    The proposed rule does not have federalism implications. It will 
not have a substantial direct effect on States, on the relationship 
between the national government and the States, or on the distribution 
of powers and responsibilities among various levels of government, as 
specified in Executive Order 13132. The proposed rulemaking will only 
affect one facility, providing regulatory flexibility applicable to 
this specific site. Thus, Executive Order 13132 does not apply to this 
proposed rule.

I. How Does This Rule Comply With Executive Order 13175: Consultation 
and Coordination With Indian Tribal Governments?

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
EPA is currently unaware of any Indian tribes located in the vicinity 
of the facility. Thus, Executive Order 13175 does not apply to this 
rule.

J. Does This Rule Comply With the National Technology Transfer and 
Advancement Act?

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, Section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary

[[Page 30361]]

consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. Voluntary 
consensus standards are technical standards (e.g., material 
specifications, test methods, sampling procedures, and business 
practices) that are developed or adopted by voluntary consensus 
standards bodies. The NTTAA directs EPA to provide Congress, through 
OMB, explanations when the Agency decides not to use available and 
applicable voluntary consensus standard. This proposed rulemaking does 
not involve technical standards. Therefore, EPA is not considering the 
use of any voluntary consensus standards. EPA welcomes comments on this 
aspect of the proposed rulemaking and, specifically, invites the public 
to identify potentially-applicable voluntary consensus standards and to 
explain why such standards should be used in this regulation.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous materials, Waste treatment and 
disposal, Recycling.

    Dated: May 30, 2001.
Christine Todd Whitman,
Administrator.

    For the reasons set forth in the preamble, part 261 of chapter I of 
title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for Part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.

    2. Section 261.4 is amended by adding paragraph (a)(22) to read as 
follows:


Sec. 261.4  Exclusions.

    (a) * * *
    (22) Dewatered wastewater treatment sludges generated by the 
International Business Machines Corporation (IBM) East Fishkill 
facility in Hopewell Junction, New York, provided that:
    (i) The sludge is recycled as an ingredient in the manufacture of 
cement meeting appropriate product specifications by a cement 
manufacturing facility.
    (ii) The sludge is not stored on the land, and protective measures 
are taken to ensure against wind dispersal and precipitation run-off.
    (iii) The sludge is not accumulated speculatively, as defined in 
Sec. 261.1(c)(8).
    (iv) A representative sample of the sludge undergoes constituent 
analysis by IBM (using the methods specified in 40 CFR Part 264, 
Appendix IX) demonstrating that the sludge contains constituents at no 
greater concentrations than the thresholds presented below. Sludges 
generated by different wastewater treatment systems must be analyzed 
separately (commingling of the sludges is permissible after sampling). 
This sampling and analysis must be conducted every three months for an 
initial 12-month period, which can include the immediate period prior 
to the effective date of this exclusion. After the initial 12-month 
reporting period (i.e., four sampling/analysis events), sampling and 
analysis must be conducted every six months for the duration of the 
project. Additionally, after any change in either the manufacturing 
process or the wastewater treatment process that could affect the 
chemical composition of the wastewater treatment sludge, sampling and 
analysis must be conducted. In addition to the constituents for which 
threshold levels are established, IBM must analyze and report the 
concentration levels of mercury and beryllium:

Arsenic--3.0 mg/kg
Cadmium--0.88 mg/kg
Chromium--(total) 22.9 mg/kg
Lead--18.8 mg/kg
Nickel--10.4 mg/kg
Silver--2.1 mg/kg
Cyanide (amenable)--0.815 mg/kg
Cyanide (total)--0.815 mg/kg

    (v) An accounting is made of the volumes of sludge that are 
recycled, with an assessment of how much less analogous raw materials 
are used to produce the same volume of cement product, or how much more 
cement is produced attributable to the volume of sludge that is 
processed. IBM must acquire this information from the cement 
manufacturing facility.
    (vi) IBM documents each shipment of the sludge, including where the 
sludge was sent, the date of the shipment, the date that the shipment 
was received and the volume of each shipment.
    (vii) IBM provides EPA and NYSDEC with semi-annual reports 
detailing all of the information in paragraphs (a)(22)(i) through (vi) 
of this section for the duration of the project.
    (viii) Should any of the conditions of paragraphs (a)(22)(i) 
through (vii) of this section not be met, the exclusion provided in 
this provision will not be applicable and the wastewater treatment 
sludge will be subject to the applicable RCRA Subtitle C regulations 
until the conditions are once again met.
    (ix) The provisions of this section shall expire on [INSERT DATE 
FIVE YEARS FROM EFFECTIVE DATE OF FINAL RULE].
* * * * *
[FR Doc. 01-14249 Filed 6-5-01; 8:45 am]
BILLING CODE 6560-50-U