[Federal Register Volume 68, Number 71 (Monday, April 14, 2003)]
[Proposed Rules]
[Pages 18052-18059]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-9047]



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Part VI





Environmental Protection Agency





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40 CFR Part 261



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

  Federal Register / Vol. 68, No. 71 / Monday, April 14, 2003 / 
Proposed Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-7480-7]
RIN 2090-AA29


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Supplemental proposal; request for comment.

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SUMMARY: The Environmental Protection Agency is publishing this site-
specific proposal, which supplements the previously published proposed 
rule for this pilot project under the Project eXcellence and Leadership 
Program (Project XL). This supplemental proposal is being issued in 
light of new data received by EPA concerning the cadmium levels in the 
wastewater treatment sludge that is the focus of this site-specific 
rulemaking. In particular, this rulemaking effort will allow for the 
implementation of a pilot project under Project XL that will 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 pilot project is to determine whether the wastewater treatment 
sludge resulting from the treatment of wastewaters from electroplating 
operations (and therefore meeting the listing description for F006 
Hazardous Waste) at IBM's East Fishkill facility may be used as an 
ingredient in the manufacture of cement in an environmentally sound 
manner without RCRA regulatory controls.

DATES: Public Comments: Comments on this supplemental proposal must be 
received on or before May 14, 2003. All comments should be submitted in 
writing or electronically according to the directions below in the 
SUPPLEMENTARY INFORMATION section.
    Public Hearing: Commenters may request a public hearing on or 
before April 28, 2003, and should specify the basis for the request. If 
EPA determines there is sufficient reason to hold a public hearing, it 
will do so by May 5, 2003, during the last week of the public comment 
period. Requests for a public hearing should be submitted according to 
the information below in the ADDRESSES section. If a public hearing is 
scheduled, the date, time, and location will be available through a 
Federal Register document or by contacting Mr. Sam Kerns at the U.S. 
EPA Region 2 office (see FOR FURTHER INFORMATION CONTACT section, 
below).

ADDRESSES: Comments may be submitted electronically, by mail, by 
facsimile, or through hand delivery/courier. Follow the detailed 
instructions as provided in the SUPPLEMENTARY INFORMATION section.
    Request for a Hearing: Requests for a hearing should be mailed to 
the Environmental Protection Agency, EPA Docket Center (EPA/DC), RCRA 
Docket (5305T), 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please send an original and two copies of all comments, and refer to 
Docket Number F-2002-IB3P-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.

FOR FURTHER INFORMATION CONTACT: Mr. Sam Kerns, 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]). Further 
information on today's action may also be obtained on the world wide 
web at http://www.epa.gov/projectxl/.

SUPPLEMENTARY INFORMATION:

Outline of Today's Supplemental Proposal

    The information presented in this preamble is organized as follows:

I. General Information
    A. How Can I get Copies of This Document and other Related 
Information?
    B. How and To Whom Do I Submit Comments?
    C. How Should I Submit CBI to the Agency?
    D. What Should I Consider as I Prepare My Comments for EPA?
II. Authority
III. Background
    A. How does this Supplemental Proposal relate to the original 
proposal published on June 6, 2001 (66 FR 30349)?
    B. Brief Summary of the June 6, 2001 Proposed Rule
IV. Discussion of Certain Comments Received on the June 6, 2001 
Proposed Rule
    A. Shenandoah Road Superfund Site Stakeholders
    B. Environmental Technology Council
V. Discussion of the Change From the June 6, 2001 Proposed Rule
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866
    B. Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132
    F. Executive Order 13175
    G. Executive Order 13045
    H. Executive Order 13211
    I. National Technology Transfer and Advancement Act of 1995
    J. Executive Order 12898
VII. RCRA & Hazardous and Solid Waste Amendments of 1984
    A. Applicability of Rules in Authorized States
    B. Effect on New York

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    I. Docket. EPA has established an official public docket for this 
action under Docket ID No. F-2002-IB3P-FFFFF. The official public 
docket consists of the documents specifically referenced in this 
action, any public comments received, and other information related to 
this action. Although a part of the official docket, the public docket 
does not include Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. The official 
public docket is the collection of materials that is available for 
public viewing at the RCRA Docket in the EPA Docket Center, (EPA/DC) 
EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The 
EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 
p.m., Monday through Friday, excluding legal holidays. The telephone 
number for the Reading Room is (202) 566-1742, and the telephone number 
for the RCRA Docket is (202) 566-0270. The public may copy a maximum of 
100 pages from any regulatory docket at no charge. Additional copies 
cost 15 cents per page.
    II. Electronic Access. You may access this Federal Register 
document electronically through the EPA Internet under the ``Federal 
Register'' listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not

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included in the official public docket, will not be available for 
public viewing in EPA's electronic public docket. EPA's policy is that 
copyrighted material will not be placed in EPA's electronic public 
docket but will be available only in printed, paper form in the 
official public docket. To the extent feasible, publicly available 
docket materials will be made available in EPA's electronic public 
docket. When a document is selected from the index list in EPA Dockets, 
the system will identify whether the document is available for viewing 
in EPA's electronic public docket. Although not all docket materials 
may be available electronically, you may still access any of the 
publicly available docket materials through the docket facility 
identified in I.B. EPA intends to work towards providing electronic 
access to all of the publicly available docket materials through EPA's 
electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket. Public 
comments submitted on computer disks that are mailed or delivered to 
the docket will be transferred to EPA's electronic public docket. 
Public comments that are mailed or delivered to the Docket will be 
scanned and placed in EPA's electronic public docket. Where practical, 
physical objects will be photographed, and the photograph will be 
placed in EPA's electronic public docket along with a brief description 
written by the docket staff.
    For additional information about EPA's electronic public docket 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, by facsimile, or 
through hand delivery/courier. To ensure proper receipt by EPA, 
identify the appropriate docket identification number in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments. If you wish to 
submit CBI or information that is otherwise protected by statute, 
please follow the instructions in I.B.2 and I.D. Do not use EPA Dockets 
or e-mail to submit CBI or information protected by statute.
    I. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    I. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID No. F-2002-
IB3P-FFFFF. The system is an ``anonymous access'' system, which means 
EPA will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.
    II. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. F-2002-IB3P-FFFFF. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    III. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the mailing address identified in I.B. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    II. By Mail. Send 2 copies of your comments to the RCRA Docket, 
Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania 
Ave., NW., Washington, DC, 20460, Attention Docket ID No. F-2001-IB3P-
FFFFF.
    III. By Hand Delivery or Courier. Deliver your comments to: 
Environmental Protection Agency, EPA Docket Center, 1301 Constitution 
Avenue, NW., Washington, DC 20004, Attention Docket ID No. F-2002-IB3P-
FFFFF. Such deliveries are only accepted during the Docket's normal 
hours of operation as identified in A.1.
    IV. By Facsimile. Fax your comments to: 202-566-0272, Attention 
Docket ID. No. F-2001-IB3P-FFFFF.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically through EPA's electronic public docket or by e-mail. 
Send or deliver information identified as CBI only to the following 
address: Environmental Protection Agency, EPA Docket Center (EPA/DC), 
RCRA Docket, 1301 Constitution Avenue, NW., Washington, DC 20004, 
Attention Docket ID No. F-2001-IB3P-FFFFF. You may claim information 
that you submit to EPA as CBI by marking any part or all of that 
information as CBI (if you submit CBI on disk or CD ROM, mark the 
outside of the disk or CD ROM as CBI and then identify electronically 
within the disk or CD ROM the specific information that is CBI). 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the public docket and EPA's electronic public docket. If you submit 
the copy that does not contain CBI on disk or CD ROM, mark the outside 
of the disk or CD ROM clearly that it does not contain CBI. Information 
not marked as CBI will be

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included in the public docket and EPA's electronic public docket 
without prior notice. If you have any questions about CBI or the 
procedures for claiming CBI, please consult the person identified in 
the FOR FURTHER INFORMATION CONTACT section.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:

I. Explain your views as clearly as possible.
II. Describe any assumptions that you used.
III. Provide any technical information and/or data you used that 
support your views.
IV. If you estimate potential burden or costs, explain how you arrived 
at your estimate.
V. Provide specific examples to illustrate your concerns.
VI. Offer alternatives.
VII. Make sure to submit your comments by the comment period deadline 
identified.
VIII. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. 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).

III. Background

A. How Does This Supplemental Proposal Relate to the Original Proposal 
Published on June 6, 2001 (66 FR 30349)?

    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. 
Information will be obtained and used to evaluate this recycling 
process and determine whether similar sludges should also be excluded 
from RCRA regulatory controls when recycled in the same manner. 
However, additional data will likely be necessary before EPA would be 
in a position to evaluate this practice at the national level.
    Today's supplemental proposal amends the original proposal 
published on June 6, 2001 (66 FR 30349). As with the original proposed 
rule, this supplemental proposal is not intended to apply to any other 
hazardous wastes generated and/or managed at the IBM facility, unless 
the wastewater treatment sludge (also designated as F006 Hazardous 
Waste) generated by the other wastewater treatment plant (the B/386 
East Complex) at the facility becomes eligible 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. The proposed rule does not apply to any wastewater treatment 
sludges generated at other facilities.
    The duration of this pilot project is five years--that is, the 
site-specific conditional exclusion includes a ``sunset provision'' 
which will automatically terminate the exclusion five years from the 
effective date of the final rulemaking. 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). However, EPA does not expect that this XL project alone 
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.
    Today's supplemental proposal, and the original proposed rulemaking 
will not in any way affect the provisions or applicability of any other 
existing or future regulations.
    EPA is soliciting comments on today's supplemental proposal. EPA 
will publish responses to comments, and comments to the original 
proposal in a subsequent Federal Register document. Subject to comments 
received on the proposal, EPA will either promulgate the proposed rule 
(as supplemented with today's proposal) as a final rule, modify the 
proposal as necessary to address comments and promulgate the modified 
proposal as a final rule, or decide to not go final with the rule. If 
significant changes to the rule are necessary based on comments 
received, EPA will re-propose the rule to allow for further public 
notice and comment. The XL project will enter the implementation phase 
only after a final rule is promulgated by EPA, and NYSDEC has 
undertaken appropriate action to allow the project to be implemented.
    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/.
    For a more complete and detailed discussion of Project XL, the 
development of the Final Project Agreement (FPA), and the pilot project 
for which this supplemental proposal is intended, the reader is 
referred to the original proposal (June 6, 2001, 66 FR 30349). The 
summary of the proposed rule provided below is not intended to be 
comprehensive, but only includes those aspects of the proposed rule 
most relevant to this supplemental proposal.

B. Brief Summary of the June 6, 2001 Proposed Rule

    On June 6, 2001, EPA published a proposed rule (66 FR 30349) to 
amend the RCRA regulatory definition of solid waste to provide a site-
specific conditional exclusion for the F006 electroplating sludge 
generated by the IBM East Fishkill facility located in Hopewell 
Junction, New York. This rulemaking effort was undertaken to allow for 
the implementation of a pilot project under Project XL to determine 
whether the electroplating sludge could be recycled in an 
environmentally sound manner as an ingredient in the production of 
cement without RCRA regulatory oversight. (Note that the legitimate 
recycling of this sludge as an ingredient in cement is currently 
regulated under Subtitle C of RCRA because the cement is likely to be 
used on the land--that is, ``used in a manner constituting disposal,'' 
a form of recycling that is analogous to land disposal. Because the 
current regulatory framework would subject this sludge to RCRA 
regulatory requirements, this recycling scenario would likely not be 
undertaken and implemented without the site-specific exclusion.)
    EPA's (and NYSDEC's) decision to proceed with this pilot project 
was based in large part on the determination

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that the use of the sludge as an ingredient in cement is legitimate 
recycling. In other words, the electroplating sludge in question was 
determined, based on a comparative analysis of the constituents in both 
the sludge and the raw materials that the sludge would be replacing, to 
be a legitimate substitute for the analogous raw materials that would 
otherwise be used in the production of cement. See the June 6, 2001 
proposal (66 FR at 30352-30354) for a more detailed discussion of the 
Agency's basis for defining this activity as legitimate recycling. 
Having determined the legitimacy of this activity, the proposed site-
specific exclusion was conditioned on the sludge remaining consistent 
with the analogous raw materials, which was accomplished by setting a 
set of threshold levels for the hazardous constituents contained in the 
sludge. (Note that the site-specific conditional exclusion also imposes 
certain other conditions on IBM to be eligible for the exclusion.)

IV. Discussion of Certain Comments Received on the June 6, 2001 
Proposed Rule

    On June 6, 2001, EPA requested comments on the proposed rule for 
the IBM East Fishkill Project XL (see 66 FR 30349). While the Agency 
will appropriately address the comments received in the final rule 
(assuming the rule is finalized), EPA is taking this opportunity to 
address certain fundamental misconceptions concerning this XL pilot 
project that are common to many of the comments received on the 
original proposal. In addition, the Agency would like to address 
certain comments that question the overall ``legitimacy'' of using this 
F006 sludge as an ingredient in cement.

A. Shenandoah Road Superfund Site Stakeholders

    Comments were submitted by concerned citizens living in a community 
near the IBM East Fishkill facility who are also involved as 
stakeholders in the cleanup of the Shenandoah Road Groundwater 
Contamination Superfund Site, a remediation activity for which the IBM 
East Fishkill facility was identified as a Potentially Responsible 
Party (PRP). The Agency is taking this opportunity to address some of 
the concerns expressed by these citizens. The sludge involved in this 
XL project was not disposed of at the Superfund site, and the 
production lines and wastewater treatment systems involved in 
generating the sludge are not associated with operations which resulted 
in the groundwater contamination that is the focus of the Superfund 
remedial activities. Further, the sludge does not contain 
tetrachloroethene (PCE) or other volatile organic constituents (VOCs), 
but rather is primarily composed of calcium and fluoride, and includes 
certain inorganic constituents of concern (i.e., heavy metals) at low 
levels.
    Also, it is worth noting that while the facility may have been 
involved in past operations that resulted in environmental damages, 
this in and of itself does not preclude the facility (or any facility) 
from developing and proposing a pilot project that meets the Project XL 
criteria.
    In addition, several of the commenters requested a public meeting 
on this XL project and the proposed rule and an extension to the 
comment period. This request was declined by EPA because the 
substantive concerns expressed in the comments were primarily based 
upon a perceived connection between this XL pilot project and the 
contamination/remediation activities at the Shenandoah Road Superfund 
Site. Since public meetings concerning the Superfund site were being 
held, EPA concluded that they provided a more appropriate forum to 
raise such concerns.
    To address any concerns that may have been somewhat related to 
IBM's XL project, EPA held an Availability Session (an informal forum 
in which the pilot project could be discussed with interested 
individuals) in conjunction with one of the Superfund public meetings 
as an effective first step in addressing those concerns. A fact sheet 
for the project was updated to respond to comments received before the 
Superfund public meeting that was scheduled for June 13, 2001, a week 
following publication of the proposed rule. (Most of the comments 
received from the residents of the Shenandoah Road area had been 
received before this meeting.) EPA's project manager for this XL 
project attended the June 13, 2001 Superfund public meeting, hosted the 
Availability Session, discussed this XL project with interested 
persons, and distributed copies of the fact sheet. Comments that were 
received during and immediately after the Availability Session were 
subsequently addressed by letter or e-mail. Therefore, although neither 
a public meeting nor an extension of the comment period was granted 
specific to this XL project or proposed rule, the Agency took steps to 
address the concerns raised.

B. Environmental Technology Council

    The Environmental Technology Council (ETC) is a national trade 
association representing the commercial hazardous waste management 
industry and has historically been an active stakeholder in rulemakings 
involving RCRA jurisdiction. While ETC commented on several aspects of 
the proposal which will be addressed in the final rule (assuming the 
rule is finalized), several comments related to ``legitimate 
recycling'' and ``dilution'' exhibited a significant misunderstanding 
that the Agency wishes to address in today's notice.
    To begin, ETC asserts that the recycling of IBM's sludge as an 
ingredient in cement is a sham, rather than legitimate recycling. In 
other words, ETC claims that the use of the calcium-rich sludge as an 
ingredient in cement is nothing more than treatment and/or disposal of 
the sludge in the guise of recycling. While ETC provides support for 
this assertion by addressing the various ``legitimacy criteria'' as the 
Agency did in the proposal (see 66 FR at 30353), one aspect of ETC's 
discussion requires clarification from EPA in this supplemental 
proposal. ETC contends that the sludge contains significantly higher 
levels of hazardous constituents than the analogous raw materials the 
sludge would replace. The Agency disagrees with ETC and notes that ETC 
cites historical analytical data on the sludge rather than the more 
recent analyses of the sludge to support this claim. Further, ETC fails 
to acknowledge the threshold levels proposed as a mechanism to ensure 
that the sludge excluded from RCRA regulation would remain comparable 
to the analogous raw materials. ETC's claim to the contrary 
notwithstanding, the sludge that will be recycled pursuant to the 
proposed conditional exclusion will, in effect, legitimately substitute 
for the analogous raw materials that would otherwise be used. This is 
one of the indicators the Agency considered in determining that the use 
of the sludge as an ingredient in the production of cement is 
legitimate recycling.
    As for ETC's position that this recycling scenario is simply 
dilution, the Agency acknowledges that the 1:200 ratio of sludge to 
normal raw materials might, in and of itself, lead one to assume that 
impermissible dilution is occurring. Indeed, the Agency stated as much 
in the preamble to the proposed rule (see 66 FR at 30354); however, as 
EPA also discussed, upon further evaluation, one can see that the ratio 
is merely a function of the relatively small volume of electroplating 
sludge generated by the IBM facility and the relatively large volume of 
raw materials typically processed by a cement

[[Page 18056]]

manufacturer. It is not, as ETC asserts, an attempt to simply dispose 
of the sludge by diluting it into a much larger volume of raw 
materials. In making this claim, ETC ignores the fact that the sludge 
does indeed contribute a very integral part of the ingredient mixture 
necessary to produce cement (i.e., calcium). Furthermore, as stated 
earlier, the concentrations of hazardous constituents in the sludge and 
in the analogous raw materials are comparable. Therefore, to the extent 
that there is any ``dilution'' of the hazardous constituents in the 
sludge, the Agency believes it would be nominal, incidental, and 
consistent with the processing that the normal raw materials undergo in 
the production of cement (i.e., similar to the ``dilution'' that occurs 
when only normal raw materials are used). Finally, the Agency notes 
that ETC acknowledges in their comments that the Toxicity 
Characteristic Leaching Procedure (TCLP) data provided in support of 
this rulemaking indicate that the sludge would meet the applicable Land 
Disposal Restrictions treatment standards as generated, without 
requiring further treatment. Given that the sludge already meets the 
treatment standards that would apply if it was disposed of in a 
Subtitle C permitted hazardous waste landfill, ``dilution'' as an 
impermissible substitute for the appropriate treatment of the hazardous 
constituents is a moot point (see 40 CFR 268.3).

V. Discussion of the Change From the June 6, 2001 Proposed Rule

    Since the June 6, 2001 proposal, IBM continued to sample and 
analyze the sludge that is the focus of this pilot project. In the 
course of this sampling and analysis effort, IBM discovered that the 
concentration of cadmium in the sludge had increased to 1.5182 ppm. IBM 
then conducted a thorough inventory of the materials and equipment used 
in the production processes and determined that cadmium is not used\1\. 
In the June 6, 2001 proposal, the Agency discussed IBM's assumption 
that the cadmium detected in the wastewater treatment sludge is present 
as a contaminant in the lime used in the wastewater treatment process 
(see Footnote 4, 66 FR 30354). This appears to be the case.
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    \1\ Note that, as mentioned in the original proposed rule (see 
Footnote 4, 66 FR at 30354, June 6, 2001), during the development of 
this XL project, IBM had previously conducted a review of the 
materials used in the facility's production processes and determined 
that cadmium is not used at the facility.
---------------------------------------------------------------------------

    Upon learning that in some instances the sludge would not meet the 
threshold level that the Agency had originally proposed for cadmium 
(i.e., 0.88 mg/kg) for the sludge to be conditionally excluded from the 
definition of solid waste, IBM informed EPA; EPA then requested that 
IBM provide a detailed analysis of the lime used in the wastewater 
treatment process (which IBM received from the distributor of the 
lime). This analysis showed that the lime being used by IBM at the time 
contained 2.0 ppm cadmium. The Agency believes that, because the lime 
makes up such a high proportion of the sludge (typically more than 90%, 
according to IBM), the cadmium levels in the sludge are consistent with 
what would be expected given the cadmium levels in the lime.
    In considering how to proceed, one option was to keep the proposed 
threshold level of cadmium in the wastewater treatment sludge and 
disallow any sludge not meeting this level from being conditionally 
excluded from the definition of solid waste under the pilot project. 
Under this approach, if the Agency finalizes the site-specific 
exclusion, and did so as originally proposed, IBM could begin to use 
the sludge as an ingredient in cement once the sludge met the proposed 
conditions of the exclusion. However, this approach seems 
inappropriate, especially considering that the lime containing 2.0 ppm 
cadmium could itself be used as an ingredient in cement outside of RCRA 
jurisdiction (the lime is a commercial product, not a solid waste). Put 
another way, the Agency believes it would be inappropriate to disallow 
the sludge (which is primarily lime) from being used as an ingredient 
because of a contaminant in the lime. Therefore this was not considered 
a viable option.
    An alternative option is to re-propose a more realistic threshold 
level for cadmium, based on the potential presence of cadmium in the 
lime used in wastewater treatment. The Agency notes that the slightly 
higher concentration of cadmium in the sludge (as well as the proposed 
change to the cadmium threshold level to reflect that concentration) 
has no effect on the Agency's determination that the sludge is 
analogous to the raw materials that would otherwise be used as 
ingredients in the production of cement. And, as discussed briefly in 
the proposal (see 66 FR 30354, June 6, 2001), a certain amount of 
variability in the constituent concentrations in the normal raw 
materials used to produce cement is typical, if not expected. In 
proposing the original cadmium threshold of 0.88 mg/kg, the Agency 
assumed that this would account for such variability. Obviously, this 
was not the case. Therefore, the Agency has determined that it is more 
appropriate to re-propose a cadmium threshold level that more 
accurately reflects the potential variability of cadmium concentrations 
in lime, and its attendant impact on the cadmium concentrations in the 
sludge generated using the lime.
    In defining a cadmium threshold that would be more appropriate and 
reflect the natural variability in raw materials normally used as 
ingredients in cement, the Agency learned that the lime IBM uses for 
treating the electroplating wastewaters is held to a maximum 
concentration of 2.0 ppm, which is the standard for cadmium 
concentrations in lime used for conditioning (or treating) drinking 
water.\2\ Assuming that the lime used to generate the sludge will not 
exceed 2.0 ppm cadmium, the sludge should also not exceed this level. 
Therefore, the Agency is today proposing that the threshold level for 
cadmium be set at 2.0 mg/kg (rather than the previously proposed level 
of 0.88 mg/kg). The Agency believes that this threshold level more 
accurately reflects the upper limit of the concentration of cadmium 
naturally occurring in the specific lime used to generate the 
electroplating sludge.
---------------------------------------------------------------------------

    \2\ In considering a more appropriate cadmium threshold level, 
the Agency contacted the National Lime Association (NLA) for generic 
information regarding the variability of metal concentrations 
naturally occurring in lime on a national basis. Such comprehensive 
information was not readily available. However, in considering 
whether the Agency should characterize the constituent 
concentrations of cadmium in lime on a national basis (a somewhat 
daunting task), EPA learned that such a characterization may not be 
necessary to develop a threshold level that appropriately reflects 
the cadmium concentrations in the lime the IBM East Fishkill 
facility uses. Rather, as the Agency learned from the NLA, the lime 
products provided by IBM's distributor are ANSI-60 (UL) certified as 
water treatment chemicals. This means that these products (including 
the lime used in IBM's wastewater treatment system) meet the 
applicable concentration criteria for heavy metals, including 
cadmium (which is 2 ppm), as long as the products are used per 
specifications. In other words, the specific lime used by this 
specific IBM facility is certified to have no more than 2 ppm 
cadmium. Given that this is a site-specific rulemaking, EPA 
considers this 2 ppm cadmium concentration to be a more appropriate 
threshold level for this specific site than a threshold level 
reflecting the cadmium concentrations developed on a national basis.
---------------------------------------------------------------------------

    Finally, the Agency notes that while it is publishing the entire 
text of the regulatory language that was proposed in the June 6, 2001 
Federal Register document to provide context for the proposed change in 
this supplemental proposal, the Agency is only soliciting comment on 
the revised cadmium threshold level.

[[Page 18057]]

VI. Statutory and Executive Order Reviews

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735), the Agency must 
determine whether this regulatory action is ``significant'' and 
therefore subject to formal review by the Office of Management and 
Budget (OMB) and to the requirements of the Executive Order, which 
include assessing the costs and benefits anticipated as a result of 
this regulatory action. The Order defines ``significant regulatory'' 
action as one that is likely to result in a rule that may: (1) Have an 
annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or Tribal governments or communities; (2) 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; (3) materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    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.

B. Regulatory Flexibility Act (RFA), as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et. 
seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute 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 organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
today's rule on small entities, small entity is defined as: (1) A small 
business; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's proposed rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
proposed rule will not impose any requirements on small entities 
because it only affects the IBM facility in Hopewell Junction, NY and 
which does not fit the definition of small entity.

C. 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.

D. 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 by State, local, and Tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year.
    Before promulgating a rule for which a written statement is needed, 
section 205 of the UMRA generally requires EPA to identify and consider 
a reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective, or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted.
    Before EPA establishes any regulatory requirements that may 
significantly or uniquely affect small governments, including Tribal 
governments, it must have developed under section 203 of the UMRA a 
small government agency plan. The plan must provide for notifying 
potentially affected small governments, enable 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.

E. Executive Order 13132

    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 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.''
    Today's proposal, which supplements the earlier proposal, 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 the various levels of government, as specified in Executive Order 
13132. Today's supplemental proposal will only affect one facility, 
providing regulatory flexibility applicable to this specific site. 
Thus, Executive Order 13132 does not apply to this rule.

F. Executive Order 13175

    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

[[Page 18058]]

government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.'' 
Today's proposal, which supplements the earlier proposal, 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.

G. Executive Order 13045

    Executive Order 13045, entitled ``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 potential effective 
and reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to Executive Order 13045 because 
it is not an economically significant rule as defined by Executive 
Order 12866, and because the Agency does not have reason to believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children because this action raises the 
threshold level of cadmium to the concentration that naturally occurs 
in lime used to generate electroplating sludge. The public is invited 
to submit or identify peer-reviewed studies and data, of which the 
Agency may not be aware, that assessed results of early life exposure 
to cadmium that occurs naturally in raw materials that are used in 
cement production.

H. Executive Order 13211

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. It will 
not result in increased energy prices, increased cost of energy 
distribution, or an increased dependence on foreign supplies of energy.

I. National Technology Transfer and Advancement Act of 1995

    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 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., materials 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 standards. 
Today's proposal, which supplements the earlier proposal, does not 
establish technical standards. Therefore, EPA did not consider the use 
of any voluntary consensus standards.

J. Executive Order 12898

    Executive Order 12898, ``Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations'' (February 
11, 1994), is designed to address the environmental and human health 
conditions of minority and low-income populations. EPA is committed to 
addressing environmental justice concerns and has assumed a leadership 
role in environmental justice initiatives to enhance environmental 
quality for all citizens of the United States. The Agency's goals are 
to ensure that no segment of the population, regardless of race, color, 
national origin, income, or net worth bears disproportionately high and 
adverse human health and environmental impacts as a result of EPA's 
policies, programs, and activities. In response to Executive Order 
12898, EPA's Office of Solid Waste and Emergency Response (OSWER) 
formed an Environmental Justice Task Force to analyze the array of 
environmental justice issues specific to waste programs and to develop 
an overall strategy to identify and address these issues (OSWER 
Directive No. 9200.3-17). To address this goal, EPA conducted a 
qualitative analysis of the environmental justice issues under the 
national proposed rule. Potential environmental justice impacts are 
identified consistent with the EPA's Environmental Justice Strategy and 
the OSWER Environmental Justice Action Agenda.
    Today's proposal, which supplements an earlier proposal, applies to 
one facility in New York. Overall, no disproportional impacts to 
minority or low income communities are expected.

VII. RCRA & Hazardous and Solid Waste Amendments of 1984

A. 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.

B. Effect on New York Authorization

    The proposed rule, which today's notice supplements, 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 the 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

[[Page 18059]]

exclusion. EPA may not enforce these requirements until it approves the 
State requirements as a revision to the authorized State program.

List of Subjects in 40 CFR Part 261

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

    Dated: April 4, 2003.
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. The threshold 
concentrations are as follows:

Arsenic 3.0 mg/kg
Cadmium 2.0 mg/kg
Chromium (total) 22.9 mg/kg
Cyanide (amenable) 0.815 mg/kg
Cyanide (total) 0.815 mg/kg
Lead 18.8 mg/kg
Nickel 10.4 mg/kg
Silver 2.1 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)-(vi) of this 
section for the duration of the project.
    (viii) Should any of the conditions of paragraphs (a)(22)(i)-(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 [DATE FIVE 
YEARS FROM EFFECTIVE DATE OF FINAL RULE].
* * * * *
[FR Doc. 03-9047 Filed 4-11-03; 8:45 am]
BILLING CODE 6560-50-P