[Federal Register Volume 77, Number 136 (Monday, July 16, 2012)]
[Proposed Rules]
[Pages 41720-41728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17272]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R01-RCRA-2012-0447; FRL-9699-4]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Proposed Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule and request for comment.

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SUMMARY: The EPA (also, ``the Agency'' or ``we'' in this preamble) is 
proposing to grant a petition submitted by International Business 
Machines Corporation (IBM), in Essex Junction, Vermont to exclude (or 
``delist'') up to 3,150 cubic yards per calendar year of F006 
wastewater treatment sludge generated by IBM's Industrial Waste 
Treatment System from the list of hazardous wastes.
    The Agency has tentatively decided to grant the petition based on 
an evaluation of waste-specific information provided by IBM. This 
proposed decision, if finalized, would conditionally exclude the 
petitioned waste from the requirements of hazardous waste regulations 
under the Resource Conservation and Recovery Act (RCRA).
    This exclusion would be valid only when the wastewater treatment 
sludge is disposed of in a Subtitle D landfill which is permitted, 
licensed, or otherwise authorized by a State to manage industrial solid 
waste.
    If finalized, EPA would conclude that IBM's petitioned waste is 
nonhazardous with respect to the original listing criteria and that 
there are no other factors which would cause the waste to be hazardous.

DATES: Comments must be received on or before August 15, 2012. EPA will 
stamp comments received after the close of the comment period as late. 
These late comments may not be considered in formulating a final 
decision. Any person may request a hearing on the proposed decision by 
filing a request to EPA by July 31, 2012. The request must contain the 
information prescribed in 40 CFR 260.20(d).

[[Page 41721]]


ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
RCRA-2012-0447 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected].
    3. Fax: (617) 918-0647, to the attention of Sharon Leitch.
    4. Mail: Sharon Leitch, RCRA Waste Management and UST Section, 
Office of Site Remediation and Restoration (OSRR07-1), US EPA Region 1, 
5 Post Office Square, Suite 100, Boston, MA 02109-3912.
    5. Hand Delivery: Sharon Leitch, RCRA Waste Management and UST 
Section, Office of Site Remediation and Restoration (OSRR07-1), U.S. 
EPA Region 1, 5 Post Office Square, 7th floor, Boston, MA 02109-3912. 
Such deliveries are only accepted during normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information. Please contact Sharon Leitch at (617) 918-1647.
    Instructions: Direct your comments to Docket ID No. EPA-R01-RCRA-
2012-0447. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' system, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. 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. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the EPA 
Region 1 Library, 5 Post Office Square, 1st floor, Boston, MA 02109-
3912; by appointment only; tel: (617) 918-1990.

FOR FURTHER INFORMATION CONTACT: Sharon Leitch, RCRA Waste Management 
and UST Section, Office of Site Remediation and Restoration, (Mail 
Code: OSRR07-1), EPA Region 1, 5 Post Office Square, Suite 100, Boston, 
MA 02109-3912; telephone number: (617) 918-1647; fax number (617) 918-
0647; email address: [email protected].

SUPPLEMENTARY INFORMATION: The information in this section is organized 
as follows:

I. Overview Information
II. Background
    A. What is a listed waste?
    B. What is a delisting petition?
    C. What factors must EPA consider in deciding whether to grant a 
delisting petition?
III. EPA's Evaluation of the Waste Information and Data
    A. What waste did IBM petition EPA to delist?
    B. How does IBM generate the waste?
    C. How did IBM sample and analyze the petitioned waste?
    D. What were the results of IBM's analysis of the waste?
    E. How did EPA evaluate the risk of delisting this waste?
    F. What did EPA conclude about IBM's waste?
IV. Conditions for Exclusion
    A. When would EPA finalize the proposed delisting exclusion?
    B. How will IBM manage the waste if it is delisted?
    C. With what conditions must the petitioner comply?
    D. What happens if IBM violates the terms and conditions of the 
exclusion?
V. How would this action affect the states?
VI. Statutory and Executive Order Reviews

I. Overview Information

    The EPA is proposing to grant a petition submitted by International 
Business Machines Corporation (IBM) located in Essex Junction, Vermont 
to exclude or delist an annual volume of 3,150 cubic yards of F006 
wastewater treatment sludge from the lists of hazardous waste set forth 
in Title 40 of the Code of Federal Regulations (40 CFR) 261.31. IBM 
claims that the petitioned waste does not meet the criteria for which 
EPA listed it, and that there are no additional constituents or factors 
which could cause the waste to be hazardous.
    Based on the EPA's evaluation described in section III, in which we 
reviewed the description of the process which generates the waste and 
the analytical data submitted by IBM, we agree with the petitioner that 
the waste is nonhazardous. We believe that the petitioned waste does 
not meet the criteria for which the waste was listed, and that there 
are no other factors which might cause the waste to be hazardous.

II. Background

A. What is a listed waste?

    The EPA published an amended list of hazardous wastes from 
nonspecific and specific sources on January 16, 1981, as part of its 
final and interim final regulations implementing Sec.  3001 of Resource 
Conservation and Recovery Act (RCRA). The EPA has amended this list 
several times and publishes it in 40 CFR 261.31 and 261.32.
    We list these wastes as hazardous because: (1) They typically and 
frequently exhibit one or more of the characteristics of hazardous 
wastes identified in subpart C of part 261 (that is, ignitability, 
corrosivity, reactivity, and toxicity) or (2) they meet the criteria 
for listing contained in Sec.  261.11(a)(2) or (3).

B. What is a delisting petition?

    Individual waste streams may vary depending on raw materials, 
industrial processes, and other factors. Thus, while a waste described 
in the regulations generally is hazardous, a specific waste from an 
individual facility meeting the listing description may not be.
    The procedure to exclude or delist a waste in 40 CFR 260.20 and 
260.22 allows a person, or a facility, to submit a petition to the EPA 
or to an authorized state demonstrating that a specific waste from a 
particular generating facility is not hazardous.
    In a delisting petition, the petitioner must show that a waste does 
not meet any of the criteria for listed wastes in 40 CFR 261.11 and 
that the waste does not exhibit any of the hazardous waste 
characteristics of ignitability, reactivity, corrosivity, or toxicity. 
The petitioner must present sufficient information for the Agency to 
decide whether any factors in addition to those for which the waste was 
listed warrant retaining it as a hazardous waste. (See Sec.  260.22, 42 
United States Code--U.S.C.--6921(f) and the background documents for 
the listed wastes.)

[[Page 41722]]

    If a delisting petition is granted, the generator remains obligated 
under RCRA to confirm that the waste remains nonhazardous.

C. What factors must EPA consider in deciding whether to grant a 
delisting petition?

    In reviewing this petition, we considered the original listing 
criteria and the additional factors required by the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). See Sec.  222 of HSWA, 42 U.S.C. 
6921(f), and 40 CFR 260.22(d)(2)-(4). We evaluated the petitioned waste 
against the listing criteria and factors cited in Sec.  261.11(a)(2) 
and (3).
    Besides considering the criteria in 40 CFR 260.22(a), 261.11(a)(2) 
and (3), 42 U.S.C. 6921(f), and in the background documents for the 
listed wastes, EPA must consider any factors (including additional 
constituents), other than those for which we listed the waste, if these 
additional factors could cause the waste to be hazardous.
    Our tentative decision to delist waste from IBM's facility is based 
on our evaluation of the waste for factors or criteria which could 
cause the waste to be hazardous. These factors included: (1) Whether 
the waste is considered acutely toxic; (2) the toxicity of the 
constituents; (3) the concentration of the constituents in the waste; 
(4) the tendency of the constituents to migrate and to bioaccumulate; 
(5) the persistence in the environment of any constituents once 
released from the waste; (6) plausible and specific types of management 
of the petitioned waste; (7) the quantity of waste produced; and (8) 
waste variability.
    EPA must also consider as hazardous wastes, mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See 40 CFR 261.3(a)(2)(iv) and 
(c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. Mixture and derived-from wastes are also eligible for 
exclusion but remain hazardous until excluded.

III. EPA's Evaluation of the Waste Information and Data

A. What waste did IBM petition EPA to delist?

    On July 11, 2008, IBM petitioned EPA to exclude from the list of 
hazardous wastes contained in 40 CFR 261.31, F006 Industrial Waste 
Treatment Plant (IWTP) sludge generated from its facility located in 
Essex Junction, Vermont. F006 is defined in Sec.  261.31 as 
``Wastewater treatment sludges from electroplating operations * * *'' 
IBM claims that the petitioned waste does not meet the criteria for 
which F006 was listed (i.e., cadmium, hexavalent chromium, nickel and 
complexed cyanide) and that there are no other factors which would 
cause the waste to be hazardous. Specifically, the petition request is 
for a standard exclusion for 3,150 cubic yards per calendar year of 
WWTP sludge.

B. How does IBM generate the waste?

    The sludge IBM generates is from the combination of three separate 
wastewater treatment processes at the facility. Those processes 
include: the industrial waste treatment plant (IWTP) process; the 
biological wastewater treatment plant (BWTP) process; and the chemical 
mechanical polishing (CMP) microfiltration process. The sludge is 
primarily sludge from the IWTP, this waste stream receives discharges 
from chemical wafer and mask manufacturing cleaning, etching, and 
stripping, photolithography waste, chemical etching and mechanical 
polishing, air abatement scrubbers, effluent from the CMP and BWTP 
treatment systems, wafer rinse, and facility maintenance operations. 
The industrial wastewaters also include rinse waters from copper 
electroplating manufacturing operations and wastewaters from acid 
etching of a thin platinum film and the subsequent rinse step (the 
copper and platinum wastewaters total less the 0.1 percent of the 
overall wastewater treated). The biological waste streams include 
sanitary wastewaters, dilute organic waste (DOW) and concentrated waste 
(CW). The DOW waste stream receives discharges from chemical wafer 
cleaning and stripping, Deep Ultra-Violet photolithography waste, air 
abatement adsorber decant waters, and facility chilled water and boiler 
maintenance operations. The CW stream consists of waste from 
semiconductor and mask manufacturing photolithography develop steps, 
chemical wafer cleaning, etching, and stripping operations, and parts 
decontamination. The CMP microfiltration waste stream consists of 
wastewater from chemical/mechanical polishing tools used in 
semiconductor manufacturing. The CMP wastewaters also include copper 
sulfate plating bath solutions (totaling less than 0.1 percent of the 
wastewater treated through the CMP system). The sludges from these 
three processes are combined, thickened/conditioned, and pressed to 
generate the F006 waste stream.

C. How did IBM sample and analyze the petitioned waste?

    To support its petition, IBM submitted: (1) Facility information on 
production processes and waste generation processes; (2) Historical 
sampling data of the IWTP sludge; (3) Analytical results from four 
samples for total concentrations for volatiles (SW-846 Method 8260B), 
semi volatiles (SW-846 Method 8270C) and metals (SW-846 Method 6010B 
except for mercury--SW-846 Method 7471A and selenium--SW-846 Method 
7010), for compounds of concern (COCs); and (4) Analytical results from 
four samples for Toxicity Characteristic Leaching Procedure (TCLP) 
extract values for volatiles (SW-846 Method 8260B), semi volatiles (SW-
846 Method 8270C) and metals (SW-846 Method 6010B except for mercury--
SW-846 Method 7470 and selenium--SM 3113B) for COCs.
    IBM generated the sampling data used in the Delisting Risk 
Assessment Software (DRAS) under a Quality Assurance Project Plan 
(QAPP) that was approved by EPA, Region 1 on January 27, 2011. 
Therefore, EPA believes that the sampling procedures used by IBM 
satisfy EPA's criteria for collecting representative samples of the 
F006 waste.

D. What were the results of IBM's analysis of the waste?

    EPA believes that IBM's analytical characterization provides a 
reasonable basis to grant IBM's petition for an exclusion of the 
wastewater treatment sludge. Furthermore, EPA believes the data 
submitted in support of the petition show that the sludge is non-
hazardous. Analytical data for the wastewater treatment sludge samples 
were used in the DRAS to develop delisting levels.
    The data summaries for the total detected constituents are as 
follows: (mg/kg) Arsenic--7.5; Barium--39; Chromium--290; Lead--5.6; 
Mercury--0.067; and Nickel--49. The data summary for the TCLP detected 
constituents are as follows: (mg/l) Nickel--0.11 (all other 
constituents were non-detect). Note that the above levels represent the 
highest constituent concentration found in any one sample. All 
analytical data for the volatiles and semi-volatiles samples were non-
detect.

E. How did EPA evaluate the risk of delisting this waste?

    For this delisting determination, we assumed that the waste would 
be disposed in a Subtitle D landfill and we considered transport of 
waste constituents through groundwater, surface water and air. We 
evaluated

[[Page 41723]]

IBM's petitioned waste using the Agency's Delisting Risk Assessment 
Software (DRAS) described in 65 FR 58015 (September 27, 2000), 65 FR 
75637 (December 4, 2000), and 73 FR 28768 (May 19, 2008) to predict the 
maximum allowable concentrations of hazardous constituents that may be 
released from the petitioned waste after disposal and determined the 
potential impact of the disposal of IBM's petitioned waste on human 
health and the environment. To predict the potential for release to 
groundwater from landfilled wastes and subsequent routes of exposure to 
a receptor, the DRAS uses dilution attenuation factors derived from 
EPA's Composite Model for Leachate Migration and Transformation 
Products (EPACMTP). From a release to groundwater, the DRAS considers 
routes of exposure to a human receptor of ingestion of contaminated 
groundwater, inhalation from groundwater while showering and dermal 
contact from groundwater while bathing.
    From a release to surface water by erosion of waste from an open 
landfill into stormwater run-off, DRAS evaluates the exposure to a 
human receptor by fish ingestion and ingestion of drinking water. From 
a release of waste particles and volatile emissions to air from the 
surface of an open landfill, DRAS considers routes of exposure of 
inhalation of volatile constituents, inhalation of particles, and air 
deposition of particles on residential soil and subsequent ingestion of 
the contaminated soil by a child. The technical support document and 
the user's guide to DRAS are included in the docket.
    At a target cancer risk of 1 x 10-5 and a target hazard 
quotient of 1.0, the DRAS program determined maximum allowable 
concentrations for each constituent in both the waste and the leachate 
at an annual waste volume of 3,150 cubic yards.
    We used the maximum estimated annual waste volume and the maximum 
reported total and TCLP leachate concentrations as inputs to estimate 
the constituent concentrations in the groundwater, soil, surface water 
or air. If, using an appropriate analytical method, a constituent was 
not detected in any sample, it was considered not to be present in the 
waste.

F. What did EPA conclude about IBM's waste?

    The maximum reported concentrations of the hazardous constituents 
found in this waste are presented above in section D. The maximum 
allowable constituent concentrations as determined by the DRAS are as 
follows: (mg/l) Nickel--32.4. The maximum allowable constituent 
concentrations for the remaining constituents are based on the toxicity 
characteristic in 40 CFR 261 Subpart C: (mg/l) Arsenic--5.0; Barium--
100.0; Cadmium--1.0; Chromium--5.0; Lead--5.0; and, Mercury--0.2. The 
concentrations of all constituents in both the waste and the leachate 
are below the allowable concentrations. We, therefore, conclude that 
IBM's wastewater treatment sludge is not a substantial or potential 
hazard to human health and the environment when disposed of in a 
Subtitle D landfill.
    We, therefore, propose to grant an exclusion for this waste. If 
this exclusion is finalized, IBM must dispose of this waste in a 
Subtitle D landfill permitted, licensed or otherwise authorized by a 
state, and will remain obligated to verify that the waste meets the 
allowable concentrations set forth here. IBM must also continue to 
determine whether the waste is identified in subpart C of 40 CFR 
pursuant to Sec.  261.11(c).

IV. Conditions for Exclusion

A. When would EPA finalize the proposed delisting exclusion?

    HSWA specifically requires the EPA to provide notice and an 
opportunity for comment before granting or denying a final exclusion. 
Thus, EPA will not make a final decision or grant an exclusion until it 
has addressed all timely public comments on today's proposal, including 
any at public hearings.
    Since this rule would reduce the existing requirements for persons 
generating hazardous wastes, the regulated community does not need a 
six-month period to come into compliance in accordance with Sec.  3010 
of RCRA as amended by HSWA.

B. How will IBM manage the waste if it is delisted?

    If the petitioned waste is delisted, IBM must dispose of it in a 
Subtitle D landfill which is permitted, licensed, or otherwise 
authorized by a state to manage industrial waste.

C. With what conditions must the petitioner comply?

    The petitioner, IBM, must comply with the conditions which will be 
in 40 CFR part 261, Appendix IX, Table 1. The text below gives the 
rationale and details of those requirements.
    (1) Delisting Levels:
    This paragraph provides the levels of constituents for which IBM 
must test the WWTP sludge, below which these wastes would be considered 
non-hazardous. EPA selected the set of constituents specified in 
paragraph (1) of 40 CFR part 261, Appendix IX, Table 1, (the exclusion 
language) based on information in the petition. EPA compiled the 
constituents list from the composition of the waste, descriptions of 
IBM's treatment process, previous test data provided for the waste, and 
the respective health-based levels used in delisting decision-making. 
These delisting levels correspond to the allowable levels measured in 
the TCLP concentrations.
    (2) Waste Holding and Handling:
    The purpose of this paragraph is to ensure that IBM manages and 
disposes of any WWTP sludge that contains hazardous levels of inorganic 
and organic constituents according to Subtitle C of RCRA. Managing the 
WWTP sludge as a hazardous waste until initial verification testing is 
performed will protect against improper handling of hazardous material. 
Unless and until EPA concurs that the initial verification data 
collected under paragraph (3) supports the data provided in the 
petition, the exclusion will not cover the petitioned waste. The 
exclusion is effective upon publication in the Federal Register but the 
disposal as non-hazardous waste cannot begin until two quarters of 
verification sampling is completed and an approval is obtained from 
EPA.
    (3) Verification Testing Requirements:
    IBM must implement a verification testing program on the WWTP 
sludge to assure that the sludge does not exceed the maximum levels 
specified in paragraph (1) of the exclusion language. The first part of 
the verification testing program is the quarterly testing of 
representative samples of the WWTP sludge during the first year of 
waste generation (two quarters prior to obtaining written EPA approval 
and two additional quarters). The proposed testing would verify that 
IBM operates a treatment facility where the constituent concentrations 
of the WWTP sludge do not exhibit unacceptable temporal and spatial 
levels of toxic constituents. IBM would begin quarterly sampling 30 
days after the final exclusion as described in paragraph (3)(A) of the 
exclusion language. Consequently this program will ensure that the 
sludge is evaluated in terms of variation in constituent concentrations 
in the waste over time. Following two consecutive quarters of sampling 
where the levels of constituents do not exceed the levels in paragraph 
(1), IBM can then manage and dispose of the sludge as non-hazardous in 
accordance with all

[[Page 41724]]

applicable solid waste regulations following EPA approval. If EPA 
determines that the data collected under this paragraph does not 
support the data provided in the petition, the exclusion will not cover 
the generated wastes. IBM must then prove through a new demonstration 
that its waste meets the conditions of the exclusion.
    The second part of the verification testing program is the annual 
testing of representative samples of the WWTP sludge, per paragraph 
(3)(B) of the exclusion language. To confirm that the characteristics 
of the waste do not change significantly over time, IBM must continue 
to analyze a representative sample of the waste on an annual basis. 
Annual testing requires analyzing the full list of constituents in 
paragraph (1) of the exclusion language. If operating conditions change 
as described in paragraph (4) of the exclusion language, IBM must 
reinstate all testing in paragraph (1) of the exclusion language. IBM 
must then prove through a new demonstration that its waste meets the 
conditions of the exclusion. If the annual testing of the waste does 
not meet the delisting requirements in paragraph (1), IBM must notify 
EPA according to the requirements in paragraph (6) of the exclusion 
language. The facility must provide sampling results that support the 
rationale that the delisting exclusion should not be withdrawn.
    (4) Changes in Operating Conditions:
    Paragraph (4) of the exclusion language would allow IBM the 
flexibility of modifying its processes (for example, changes in 
equipment or operating conditions). However, if significant changes to 
the manufacturing or treatment process described in the petition, or 
the chemicals used in the manufacturing or treatment process are made, 
then IBM must prove that the modified process(es)/chemicals will not 
affect the composition or type of waste generated and must request 
approval from EPA. EPA will determine if these changes will result in 
additional COCs. IBM must manage wastes generated during the new 
process demonstration as hazardous waste until it has obtained written 
approval from EPA and paragraph (3) of the exclusion language is 
satisfied.
    (5) Data Submittals and Recordkeeping:
    To provide appropriate documentation that IBM's WWTP sludge is 
meeting the delisting levels, IBM must submit reports to EPA as 
specified in the conditions, and must compile, summarize, and keep 
delisting records on-site for a minimum of five years. It must keep all 
analytical data obtained through paragraph (3) of the exclusion 
language including quality control information for five years. 
Paragraph (5) of the exclusion language requires that IBM furnish the 
data upon request for inspection by any employee or representative of 
EPA or the State of Vermont.
    If the proposed exclusion is made final, it will apply only to 
3,150 cubic yards per calendar year of wastewater treatment sludge 
generated at IBM after successful verification testing.
    EPA would require IBM to file a new delisting petition under the 
following circumstances:
    (a) If it generates waste volumes greater than 3,150 cubic yards 
per calendar year of WWTP sludge. IBM must manage these greater volumes 
as hazardous unless and until EPA grants a new exclusion.
    EPA may review and approve changes in writing or alternatively may 
require IBM to file a new delisting petition under any of the following 
circumstances:
    (b) If it significantly alters the wastewater treatment process;
    (c) If it significantly changes from the current manufacturing 
process(es) described in the International Business Machines petition; 
or
    (d) If it makes any changes that could affect the composition or 
type of waste generated such that the changes would cause any of the 
constituents in paragraph (1) of the exclusion language to potentially 
be above the delisting levels or would introduce any new constituents 
into the waste.
    (6) Reopener:
    The purpose of paragraph (6) of the exclusion language is to 
require IBM to disclose new or different information related to a 
condition at the facility or disposal of the waste, if it is pertinent 
to the delisting. This provision will allow EPA to reevaluate the 
exclusion, if a source provides new or additional information to EPA. 
EPA will evaluate the information on which EPA based the decision to 
see if it is still correct, or if circumstances have changed so that 
the information is no longer correct or would cause EPA to deny the 
petition, if presented.
    This provision expressly requires IBM to report differing site 
conditions or assumptions used in the petition in addition to failure 
to meet the annual testing conditions within 10 days of discovery. If 
EPA discovers such information itself or from a third party, it can act 
on it as appropriate. The language being proposed is similar to those 
provisions found in RCRA regulations governing no-migration petitions 
at Sec.  268.6.
    EPA believes it has the authority under RCRA and the Administrative 
Procedures Act (APA), 5 U.S.C. 551 (1978) et seq., to reopen a 
delisting decision when it receives new information that calls into 
question the assumptions underlying the delisting. EPA believes a clear 
statement of its authority in delistings is merited in light of EPA's 
experience. See Reynolds Metals Company at 62 FR 37694 and 62 FR 63458 
where the delisted waste leached at greater concentrations in the 
environment than the concentrations predicted when conducting the TCLP, 
thus leading EPA to repeal the delisting. If an immediate threat to 
human health and the environment presents itself, EPA will continue to 
address these situations on a case-by-case basis. Where necessary, EPA 
will make a good cause finding to justify emergency rulemaking. See APA 
section 553(b).
    (7) Notification Requirements:
    In order to adequately track wastes that have been delisted, EPA is 
requiring that IBM provide a one-time written notification to any state 
regulatory agency through which or to which the delisted waste is being 
transported. IBM must provide this notification 60 days before 
commencing this activity. In addition to providing this notification, 
IBM is advised to verify with each state the status of EPA's delisting 
decision under state law (see the discussion in Section V. for 
specifics).

D. What happens if IBM violates the terms and conditions of the 
exclusion?

    If IBM violates the terms and conditions established in the 
exclusion, the wastes in question would not be exempt from Subtitle C 
since this is a conditional exclusion, and thus they would be subject 
to hazardous waste management requirements. EPA also could then 
initiate procedures to withdraw the exclusion. Where there is an 
immediate threat to human health and the environment, EPA will evaluate 
the need for enforcement activities on a case-by-case basis. EPA 
expects IBM to conduct the appropriate waste analysis and comply with 
the criteria explained above in paragraph (1) of the exclusion.

V. How would this action affect the states?

    EPA is issuing this exclusion under the Federal RCRA delisting 
program. Thus, upon the exclusion being finalized, the wastes covered 
will be removed from Subtitle C control under the Federal RCRA program. 
This will mean, first, that the wastes will be delisted in any State or 
territory where the EPA is directly administering the

[[Page 41725]]

RCRA program (e.g., Iowa, Indian Country). However, whether the wastes 
will be delisted in States which have been authorized to administer the 
RCRA program will vary depending upon the authorization status of the 
States and the particular requirements regarding delisted wastes in the 
various States.
    While Vermont has been authorized to generally administer the 
Federal RCRA program, it has not sought or obtained authorization to 
delist Federal listed wastes. See 58 FR 26243 (May 3, 1993). Instead, 
the Vermont Hazardous Waste Regulation section 7-217(c) specifies that 
``the Administrator of EPA shall retain the authority to exclude such 
wastes.'' By letter dated April 12, 2012, the Vermont Department of 
Environmental Conservation has confirmed that Vermont interprets this 
regulation to mean that upon the EPA making a delisting determination 
(regarding a federally regulated waste), the delisting determination 
takes effect within that State. Thus, this delisting determination will 
apply within Vermont with no further action required by the State.
    Like Vermont, some other generally authorized States have not 
received authorization for delisting. Thus, the EPA makes delisting 
determinations for such States. However, RCRA allows states to impose 
their own regulatory requirements that are more stringent than EPA's, 
under Sec.  3009 of RCRA. These more stringent requirements may include 
a provision that prohibits a federally issued exclusion from taking 
effect in the state, or that requires a State concurrence before the 
Federal exclusion takes effect, or that allows the State to add 
conditions to any Federal exclusion. We urge the petitioner to contact 
the state regulatory authority in each State to or through which it may 
wish to ship its wastes to establish the status of its wastes under the 
state's laws.
    EPA has also authorized some states to administer a delisting 
program in place of the Federal program, that is, to make state 
delisting decisions. In such states, the state delisting requirements 
operate in lieu of the Federal delisting requirements. Therefore, this 
exclusion does not apply in those authorized states unless the state 
makes the rule part of its authorized program. If IBM transports the 
federally excluded waste to or manages the waste in any state with 
delisting authorization, IBM must obtain a delisting authorization from 
that state before it can manage the waste as non-hazardous in that 
state.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866, ``Regulatory Planning and Review '' 
(58 FR 51735, October 4, 1993), this rule is not of general 
applicability and therefore, is not a regulatory action subject to 
review by the Office of Management and Budget (OMB). This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it 
applies to a particular facility only. Because this rule is of 
particular applicability relating to a particular facility, it is not 
subject to the regulatory flexibility provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), or to Sec. Sec.  202, 204, and 
205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). 
Because this rule will affect only a particular facility, it will not 
significantly or uniquely affect small governments, as specified in 
Sec.  203 of UMRA. Because this rule will affect only a particular 
facility, this proposed rule does not have federalism implications. It 
will not 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, as specified in Executive Order 13132, ``Federalism'', (64 
FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply 
to this rule.
    Similarly, because this rule will affect only a particular 
facility, this proposed rule does not have tribal implications, as 
specified in Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000). Thus, 
Executive Order 13175 does not apply to this rule. This rule also is 
not subject to Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997), because it is not economically significant as defined in 
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. The basis for this 
belief is that the Agency used DRAS, which considers health and safety 
risks to children, to calculate the maximum allowable concentrations 
for this rule. This rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001)), because it 
is not a significant regulatory action under Executive Order 12866. 
This rule does not involve technical standards; thus, the requirements 
of Sec.  12(d) of the National Technology Transfer and Advancement Act 
of 1995 (15 U.S.C. 272 note) do not apply. As required by Sec.  3 of 
Executive Order 12988, ``Civil Justice Reform'', (61 FR 4729, February 
7, 1996), in issuing this rule, EPA has taken the necessary steps to 
eliminate drafting errors and ambiguity, minimize potential litigation, 
and provide a clear legal standard for affected conduct.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report which includes a copy of the rule to 
each House of the Congress and to the Comptroller General of the United 
States. Section 804 exempts from Sec.  801 the following types of 
rules: (1) Rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not 
required to submit a rule report regarding today's action under Sec.  
801 because this is a rule of particular applicability. Executive Order 
(EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive 
policy on environmental justice. Its main provision directs Federal 
agencies, to the greatest extent practicable and permitted by law, to 
make environmental justice part of their mission by identifying and 
addressing, as appropriate, disproportionately high and adverse human 
health or environmental effects of their programs, policies, and 
activities on minority populations and low-income populations in the 
United States.
    EPA has determined that this proposed rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. The Agency's risk assessment did not identify risks from 
management of this material in a Subtitle D landfill. Therefore, EPA 
believes that any populations in proximity of the landfills used by 
this facility should not be adversely affected by common waste 
management practices for this delisted waste.

[[Page 41726]]

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and 
recordkeeping requirements.

    Authority: Sec.  3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: June 20, 2012.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.
    For the reasons set out in the preamble, EPA proposes to amend 40 
CFR part 261 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. Amend Table 1 of Appendix IX to part 261 by adding the following 
waste stream in alphabetical order by facility ``IBM Corporation'' to 
read as follows:

Appendix IX to Part 261--Wastes Excluded Under Sec. Sec.  260.20 and 
260.22

                               Table 1--Wastes Excluded From Non-Specific Sources
----------------------------------------------------------------------------------------------------------------
                Facility                                 Address                         Waste description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
IBM Corporation........................  Essex Junction, VT.....................  Wastewater Treatment Sludge
                                                                                   (Hazardous Waste No. F006)
                                                                                   generated at a maximum annual
                                                                                   rate of 3,150 cubic yards per
                                                                                   calendar year and disposed of
                                                                                   in a Subtitle D Landfill
                                                                                   which is licensed, permitted,
                                                                                   or otherwise authorized by a
                                                                                   state to accept the delisted
                                                                                   wastewater treatment sludge.
                                                                                  IBM must implement a testing
                                                                                   program that meets the
                                                                                   following conditions for the
                                                                                   exclusion to be valid:
                                                                                  1. Delisting Levels: All
                                                                                   leachable concentrations for
                                                                                   the following constituents
                                                                                   must not exceed the following
                                                                                   levels (mg/L for TCLP):
                                                                                   Arsenic--5.0; Barium--100.0;
                                                                                   Cadmium--1.0; Chromium--5.0;
                                                                                   Lead--5.0; Mercury 0.2; and,
                                                                                   Nickel--32.4.
                                                                                  2. Waste Handling and Holding:
                                                                                   (A)IBM must manage as
                                                                                   hazardous all WWTP sludge
                                                                                   generated until it has
                                                                                   completed initial
                                                                                   verification testing
                                                                                   described in paragraph (3)(A)
                                                                                   and valid analyses show that
                                                                                   paragraph (1) is satisfied
                                                                                   and written approval is
                                                                                   received by EPA. (B) Levels
                                                                                   of constituents measured in
                                                                                   the samples of the WWTP
                                                                                   sludge that do not exceed the
                                                                                   levels set forth in paragraph
                                                                                   (1) for two consecutive
                                                                                   quarterly sampling events are
                                                                                   non-hazardous. After approval
                                                                                   is received from EPA, IBM can
                                                                                   manage and dispose of the non-
                                                                                   hazardous WWTP sludge
                                                                                   according to all applicable
                                                                                   solid waste regulations. (C)
                                                                                   Not withstanding having
                                                                                   received the initial approval
                                                                                   from EPA, if constituent
                                                                                   levels in a later sample
                                                                                   exceed any of the Delisting
                                                                                   Levels set in paragraph (1),
                                                                                   from that point forward, IBM
                                                                                   must treat all the waste
                                                                                   covered by this exclusion as
                                                                                   hazardous until it is
                                                                                   demonstrated that the waste
                                                                                   again meets the levels in
                                                                                   paragraph (1). IBM must
                                                                                   manage and dispose of the
                                                                                   waste generated under
                                                                                   Subtitle C of RCRA from the
                                                                                   time that it becomes aware of
                                                                                   any exceedance.

[[Page 41727]]

 
                                                                                  3. Verification Testing
                                                                                   Requirements: IBM must
                                                                                   perform sample collection and
                                                                                   analyses in accordance with
                                                                                   the approved Quality
                                                                                   Assurance Project Plan dated
                                                                                   January 27, 2011. All samples
                                                                                   shall be representative
                                                                                   composite samples according
                                                                                   to appropriate methods. As
                                                                                   applicable to the method-
                                                                                   defined parameters of
                                                                                   concern, analyses requiring
                                                                                   the use of SW-846 methods
                                                                                   incorporated by reference in
                                                                                   40 CFR 260.11 must be used
                                                                                   without substitution. As
                                                                                   applicable, the SW-846
                                                                                   methods might include Methods
                                                                                   0010, 0011, 0020, 0023A,
                                                                                   0030, 0031, 0040, 0050, 0051,
                                                                                   0060, 0061, 1010A, 1020B,
                                                                                   1110A, 1310B, 1311, 1312,
                                                                                   1320, 1330A, 9010C, 9012B,
                                                                                   9040C, 9045D, 9060A, 9070A
                                                                                   (uses EPA Method 1664, Rev.
                                                                                   A), 9071B, and 9095B. Methods
                                                                                   must meet Performance Based
                                                                                   Measurement System Criteria
                                                                                   in which the Data Quality
                                                                                   Objectives are to demonstrate
                                                                                   that samples of the IBM
                                                                                   sludge are representative for
                                                                                   all constituents listed in
                                                                                   paragraph (1). To verify that
                                                                                   the waste does not exceed the
                                                                                   specified delisting
                                                                                   concentrations, for one year
                                                                                   after the final exclusion is
                                                                                   granted, IBM must perform
                                                                                   quarterly analytical testing
                                                                                   by sampling and analyzing the
                                                                                   WWTP sludge as follows: (A)
                                                                                   Quarterly Testing: (i)
                                                                                   Collect two representative
                                                                                   composite samples of the WWTP
                                                                                   sludge at quarterly intervals
                                                                                   after EPA grants the final
                                                                                   exclusion. The first
                                                                                   composite samples must be
                                                                                   taken within 30 days after
                                                                                   EPA grants the final
                                                                                   approval. The second set of
                                                                                   samples must be taken at
                                                                                   least 30 days after the first
                                                                                   set. (ii) Analyze the samples
                                                                                   for all constituents listed
                                                                                   in paragraph (1). Any waste
                                                                                   regarding which a composite
                                                                                   sample is taken that exceeds
                                                                                   the delisting levels listed
                                                                                   in paragraph (1) for the
                                                                                   sludge must be disposed as
                                                                                   hazardous waste in accordance
                                                                                   with the applicable hazardous
                                                                                   waste requirements from the
                                                                                   time that IBM becomes aware
                                                                                   of any exceedance. (iii)
                                                                                   Within thirty (30) days after
                                                                                   taking each quarterly sample,
                                                                                   IBM will report its
                                                                                   analytical test data to EPA.
                                                                                   If levels of constituents
                                                                                   measured in the samples of
                                                                                   the sludge do not exceed the
                                                                                   levels set forth in paragraph
                                                                                   (1) of this exclusion for two
                                                                                   consecutive quarters, and EPA
                                                                                   concurs with those findings,
                                                                                   IBM can manage and dispose
                                                                                   the non-hazardous sludge
                                                                                   according to all applicable
                                                                                   solid waste regulations. (B)
                                                                                   Annual Testing: (i) If IBM
                                                                                   completes the quarterly
                                                                                   testing specified in
                                                                                   paragraph (3) above and no
                                                                                   sample contains a constituent
                                                                                   at a level which exceeds the
                                                                                   limits set forth in paragraph
                                                                                   (1), IBM may begin annual
                                                                                   testing as follows: IBM must
                                                                                   test two representative
                                                                                   composite samples of the
                                                                                   wastewater treatment sludge
                                                                                   (following the same protocols
                                                                                   as specified for quarterly
                                                                                   sampling, above) for all
                                                                                   constituents listed in
                                                                                   paragraph (1) at least once
                                                                                   per calendar year. (ii) The
                                                                                   samples for the annual
                                                                                   testing taken for the second
                                                                                   and subsequent annual testing
                                                                                   events shall be taken within
                                                                                   the same calendar month as
                                                                                   the first annual sample
                                                                                   taken. (iii) IBM shall submit
                                                                                   an annual testing report to
                                                                                   EPA with its annual test
                                                                                   results, within thirty (30)
                                                                                   days after taking each annual
                                                                                   sample. The annual testing
                                                                                   report also shall include the
                                                                                   total amount of waste in
                                                                                   cubic yards disposed during
                                                                                   the calendar year.
                                                                                  4. Changes in Operating
                                                                                   Conditions: If IBM
                                                                                   significantly changes the
                                                                                   manufacturing or treatment
                                                                                   process described in the
                                                                                   petition, or the chemicals
                                                                                   used in the manufacturing or
                                                                                   treatment process, it must
                                                                                   notify the EPA in writing and
                                                                                   may no longer handle the
                                                                                   wastes generated from the new
                                                                                   process as non-hazardous
                                                                                   unless and until the wastes
                                                                                   are shown to meet the
                                                                                   delisting levels set in
                                                                                   paragraph(1), IBM
                                                                                   demonstrates that no new
                                                                                   hazardous constituents listed
                                                                                   in appendix VIII of part 261
                                                                                   have been introduced, and IBM
                                                                                   has received written approval
                                                                                   from EPA to manage the wastes
                                                                                   from the new process under
                                                                                   this exclusion. While the EPA
                                                                                   may provide written approval
                                                                                   of certain changes, if there
                                                                                   are changes that the EPA
                                                                                   determines are highly
                                                                                   significant, the EPA may
                                                                                   instead require IBM to file a
                                                                                   new delisting petition.
                                                                                  5. Data Submittals and
                                                                                   Recordkeeping: IBM must
                                                                                   submit the information
                                                                                   described below. If IBM fails
                                                                                   to submit the required data
                                                                                   within the specified time or
                                                                                   maintain the required records
                                                                                   on-site for the specified
                                                                                   time, EPA, at its discretion,
                                                                                   will consider this sufficient
                                                                                   basis to reopen the exclusion
                                                                                   as described in paragraph
                                                                                   (6). IBM must: (A) Submit the
                                                                                   data obtained through
                                                                                   paragraph (3) to the Chief,
                                                                                   RCRA Waste Management & UST
                                                                                   Section, U.S. EPA Region 1,
                                                                                   (OSRR07-1), 5 Post Office
                                                                                   Square, Suite 100, Boston, MA
                                                                                   02109-3912, within the time
                                                                                   specified. All supporting
                                                                                   data can be submitted on CD-
                                                                                   ROM or some comparable
                                                                                   electronic media; (B)
                                                                                   Compile, summarize, and
                                                                                   maintain on site for a
                                                                                   minimum of five years and
                                                                                   make available for inspection
                                                                                   records of operating
                                                                                   conditions, including monthly
                                                                                   and annual volumes of WWTP
                                                                                   sludge generated, analytical
                                                                                   data, including quality
                                                                                   control information and,
                                                                                   copies of the notification(s)
                                                                                   required in paragraph (7);
                                                                                   (C) Submit with all data a
                                                                                   signed copy of the
                                                                                   certification statement in 40
                                                                                   CFR 260.22(i)(12).

[[Page 41728]]

 
                                                                                  6. Reopener Language: (A) If,
                                                                                   anytime after disposal of the
                                                                                   delisted waste, IBM possesses
                                                                                   or is otherwise made aware of
                                                                                   any environmental data
                                                                                   (including but not limited to
                                                                                   leachate data or groundwater
                                                                                   monitoring data) or any other
                                                                                   relevant data to the delisted
                                                                                   waste indicating that any
                                                                                   constituent is at a
                                                                                   concentration in the leachate
                                                                                   higher than the specified
                                                                                   delisting concentration, then
                                                                                   IBM must report such data, in
                                                                                   writing, to the Regional
                                                                                   Administrator and to the
                                                                                   Vermont Agency of Natural
                                                                                   Resources Secretary within 10
                                                                                   days of first possessing or
                                                                                   being made aware of that
                                                                                   data. (B) Based on the
                                                                                   information described in
                                                                                   paragraph (A) and any other
                                                                                   information received from any
                                                                                   source, the Regional
                                                                                   Administrator will make a
                                                                                   preliminary determination as
                                                                                   to whether the reported
                                                                                   information requires Agency
                                                                                   action to protect human
                                                                                   health or the environment.
                                                                                   Further action may include
                                                                                   suspending, or revoking the
                                                                                   exclusion, or other
                                                                                   appropriate response
                                                                                   necessary to protect human
                                                                                   health and the environment.
                                                                                   (C) If the Regional
                                                                                   Administrator determines that
                                                                                   the reported information does
                                                                                   require Agency action, the
                                                                                   Regional Administrator will
                                                                                   notify IBM in writing of the
                                                                                   actions the Regional
                                                                                   Administrator believes are
                                                                                   necessary to protect human
                                                                                   health and the environment.
                                                                                   The notice shall include a
                                                                                   statement of the proposed
                                                                                   action and a statement
                                                                                   providing IBM with an
                                                                                   opportunity to present
                                                                                   information as to why the
                                                                                   proposed Agency action is not
                                                                                   necessary or to suggest an
                                                                                   alternative action. IBM shall
                                                                                   have 30 days from the date of
                                                                                   the Regional Administrator's
                                                                                   notice to present the
                                                                                   information. (D) If after 30
                                                                                   days IBM presents no further
                                                                                   information or after a review
                                                                                   of any submitted information,
                                                                                   the Regional Administrator
                                                                                   will issue a final written
                                                                                   determination describing the
                                                                                   Agency actions that are
                                                                                   necessary to protect human
                                                                                   health or the environment.
                                                                                   Any required action described
                                                                                   in the Regional
                                                                                   Administrator's determination
                                                                                   shall become effective
                                                                                   immediately, unless the
                                                                                   Regional Administrator
                                                                                   provides otherwise.
                                                                                  7. Notification Requirements:
                                                                                   IBM must do the following
                                                                                   before transporting the
                                                                                   delisted waste: (A) Provide a
                                                                                   one-time written notification
                                                                                   to any state Regulatory
                                                                                   Agency to which or through
                                                                                   which it will transport the
                                                                                   delisted waste described
                                                                                   above for disposal, 60 days
                                                                                   before beginning such
                                                                                   activities. (B) Update the
                                                                                   one-time written notification
                                                                                   if it ships the delisted
                                                                                   waste into a different
                                                                                   disposal facility. Failure to
                                                                                   provide this notification
                                                                                   will result in a violation of
                                                                                   the delisting petition and a
                                                                                   possible revocation of the
                                                                                   decision.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2012-17272 Filed 7-13-12; 8:45 am]
BILLING CODE 6560-50-P