[Federal Register Volume 82, Number 134 (Friday, July 14, 2017)]
[Proposed Rules]
[Pages 32519-32527]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-14829]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-R06-RCRA-2017-0254; FRL-9964-71-Region 6]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to grant a petition submitted by Samsung 
Austin Semiconductor (Samsung) to exclude (or delist) the sludge 
generated from the electroplating process from the lists of hazardous 
wastes. EPA used the Delisting Risk Assessment Software (DRAS) Version 
3.0.47 in the evaluation of the impact of the petitioned waste on human 
health and the environment.

DATES: We will accept comments until August 14, 2017. We will stamp 
comments received after the close of the comment period as late. These 
late comments may or may not be considered in formulating a final 
decision. Your requests for a hearing must reach EPA by July 31, 2017. 
The request must contain the information prescribed in 40 CFR 260.20(d) 
(hereinafter all CFR cites refer to 40 CFR unless otherwise stated).

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R06-
RCRA-2017-0254, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: For technical information regarding 
the Samsung Austin Semiconductor petition, contact Michelle Peace at 
214-665-7430 or by email at [email protected].
    Your requests for a hearing must reach EPA by July 31, 2017. The 
request must contain the information described in Sec.  260.20(d).

SUPPLEMENTARY INFORMATION: Samsung submitted a petition under 40 CFR 
260.20 and 260.22(a). Section 260.20 allows any person to petition the 
Administrator to modify or revoke any provision of parts 260 through 
266, 268 and 273. Section 260.22(a) specifically provides generators 
the opportunity to petition the Administrator to exclude a waste on a 
``generator specific'' basis from the hazardous waste lists.
    EPA bases its proposed decision to grant the petition on an 
evaluation of waste-specific information provided by the petitioner. 
This decision, if finalized, would conditionally exclude the petitioned 
waste from the requirements of hazardous waste regulations under the 
Resource Conservation and Recovery Act (RCRA).
    If finalized, EPA would conclude that Samsung's petitioned waste is 
non-hazardous with respect to the original listing criteria. EPA would 
also conclude that Samsung's process minimizes short-term and long-term 
threats from the petitioned waste to human health and the environment.

Table of Contents

    The information in this section is organized as follows:

I. Overview Information
    A. What action is EPA proposing?
    B. Why is EPA proposing to approve this delisting?
    C. How will Samsung manage the waste if it is delisted?
    D. When would the proposed delisting exclusion be finalized?
    E. How would this action affect the states?
II. Background
    A. What is the history of the delisting program?
    B. What is a delisting petition, and what does it require of a 
petitioner?
    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 wastes did Samsung petition EPA to delist?
    B. Who is Samsung and what process does it use to generate the 
petitioned waste?
    C. How did Samsung sample and analyze the data in this petition?
    D. What were the results of Samsung's sample analysis?
    E. How did EPA evaluate the risk of delisting this waste?

[[Page 32520]]

    F. What did EPA conclude about Samsung's analysis?
    G. What other factors did EPA consider in its evaluation?
    H. What is EPA's evaluation of this delisting petition?
IV. Next Steps
    A. With what conditions must the petitioner comply?
    B. What happens if Samsung violates the terms and conditions?
V. Public Comments
    A. How can I as an interested party submit comments?
    B. How may I review the docket or obtain copies of the proposed 
exclusions?
VI. Statutory and Executive Order Reviews

I. Overview Information

A. What action is EPA proposing?

    EPA is proposing to approve the delisting petition submitted by 
Samsung to have the Copper filter cake excluded, or delisted from the 
definition of a hazardous waste. The Copper filter cake is listed as 
F006, wastewater treatment sludges from electroplating operations. The 
basis of the listing is cadmium, hexavalent chromium, nickel, and 
cyanide (complexed).

B. Why is EPA proposing to approve this delisting?

    Samsung's petition requests an exclusion from the F006 waste 
listing pursuant to 40 CFR 260.20 and 260.22. Samsung does not believe 
that the petitioned waste meets the criteria for which EPA listed it. 
Samsung also believes no additional constituents or factors could cause 
the waste to be hazardous. EPA's review of this petition included 
consideration of the original listing criteria and the additional 
factors required by the Hazardous and Solid Waste Amendments of 1984 
(HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 
260.22 (d)(1)-(4)(hereinafter all sectional references are to 40 CFR 
unless otherwise indicated). In making the initial delisting 
determination, EPA evaluated the petitioned waste against the listing 
criteria and factors cited in Sec. Sec.  261.11(a)(2) and (a)(3). Based 
on this review, EPA agrees with the petitioner that the waste is non-
hazardous with respect to the original listing criteria. If EPA had 
found, based on this review, that the waste remained hazardous based on 
the factors for which the waste was originally listed, EPA would have 
proposed to deny the petition. EPA evaluated the waste with respect to 
other factors or criteria to assess whether there is a reasonable basis 
to believe that such additional factors could cause the waste to be 
hazardous. EPA considered whether the waste is acutely toxic, the 
concentration of the constituents in the waste, their tendency to 
migrate and to bioaccumulate, their persistence in the environment once 
released from the waste, plausible and specific types of management of 
the petitioned waste, the quantities of waste generated, and waste 
variability. EPA believes that the petitioned waste does not meet the 
listing criteria and thus should not be a listed waste. EPA's proposed 
decision to delist waste from Samsung is based on the information 
submitted in support of this rule, including descriptions of the wastes 
and analytical data from the Austin, Texas facility.

C. How will Samsung manage the waste if it is delisted?

    If the copper filter cake is delisted, contingent upon approval of 
the delisting petition, storage containers with copper filter cake will 
be transported to an authorized, solid waste landfill (e.g., RCRA 
Subtitle D landfill, commercial/industrial solid waste landfill, etc.) 
for disposal. Any plans for recycling must be addressed through the 
Hazardous Waste Recycling regulations.

D. When would the proposed delisting exclusion be finalized?

    RCRA section 3001(f) specifically requires EPA to provide a notice 
and an opportunity for comment before granting or denying a final 
exclusion. Thus, EPA will not grant the exclusion until it addresses 
all timely public comments (including those at public hearings, if any) 
on this proposal.
    RCRA section 3010(b)(1) at 42 USCA 6930(b)(1), allows rules to 
become effective in less than six months when the regulated facility 
does not need the six-month period to come into compliance. That is the 
case here, because this rule, if finalized, would reduce the existing 
requirements for persons generating hazardous wastes.
    EPA believes that this exclusion should be effective immediately 
upon final publication because a six-month deadline is not necessary to 
achieve the purpose of section 3010(b), and a later effective date 
would impose unnecessary hardship and expense on this petitioner. These 
reasons also provide good cause for making this rule effective 
immediately, upon final publication, under the Administrative Procedure 
Act, 5 U.S.C. 553(d).

E. How would this action affect the states?

    Because EPA is issuing this exclusion under the Federal RCRA 
delisting program, only states subject to Federal RCRA delisting 
provisions would be affected. This would exclude states which have 
received authorization from EPA to make their own delisting decisions.
    EPA allows states to impose their own non-RCRA regulatory 
requirements that are more stringent than EPA's, under section 3009 of 
RCRA, 42 U.S.C. 6929. These more stringent requirements may include a 
provision that prohibits a Federally issued exclusion from taking 
effect in the state. Because a dual system (that is, both Federal 
(RCRA) and state (non-RCRA) programs) may regulate a petitioner's 
waste, EPA urges petitioners to contact the state regulatory authority 
to establish the status of their wastes under the state law.
    EPA has also authorized some states (for example, Louisiana, 
Oklahoma, Georgia, Illinois) to administer a RCRA delisting program in 
place of the Federal program, that is, to make state delisting 
decisions. Therefore, this exclusion does not apply in those authorized 
states unless that state makes the rule part of its authorized program. 
If Samsung transports the petitioned waste to or manages the waste in 
any state with delisting authorization, Samsung must obtain delisting 
authorization from that state before it can manage the waste as non-
hazardous in the state.

II. Background

A. What is the history of the delisting program?

    EPA published an amended list of hazardous wastes from non-specific 
and specific sources on January 16, 1981, as part of its final and 
interim final regulations implementing section 3001 of RCRA. EPA has 
amended this list several times and published it in 40 CFR 261.31 and 
261.32.
    EPA lists these wastes as hazardous because: (1) The wastes 
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), (2) the wastes 
meet the criteria for listing contained in Sec.  261.11(a)(2) or 
(a)(3), or (b) the wastes are mixed with or derived from the treatment, 
storage or disposal of such characteristic and listed wastes and which 
therefore become hazardous under Sec.  261.3(a)(2)(iv) or (c)(2)(i), 
known as the ``mixture'' or ``derived-from'' rules, respectively.
    Individual waste streams may vary, however, depending on raw 
materials, industrial processes, and other factors. Thus, while a waste 
described in these regulations or resulting from the operation of the 
mixture or derived-from rules generally is hazardous, a specific

[[Page 32521]]

waste from an individual facility may not be hazardous.
    For this reason, 40 CFR 260.20 and 260.22 provide an exclusion 
procedure, called delisting, which allows persons to prove that EPA 
should not regulate a specific waste from a particular generating 
facility as a hazardous waste.

B. What is a delisting petition, and what does it require of a 
petitioner?

    A delisting petition is a request from a facility to EPA or an 
authorized state to exclude wastes from the list of hazardous wastes. 
The facility petitions EPA because it does not consider the wastes 
hazardous under RCRA regulations.
    In a delisting petition, the petitioner must show that wastes 
generated at a particular facility do not meet any of the criteria for 
which the waste was listed. The criteria for which EPA lists a waste 
are in part 261 and further explained in the background documents for 
the listed waste.
    In addition, under 40 CFR 260.22, a petitioner must prove that the 
waste does not exhibit any of the hazardous waste characteristics (that 
is, ignitability, reactivity, corrosivity, and toxicity) and present 
sufficient information for EPA to decide whether factors other than 
those for which the waste was listed warrant retaining it as a 
hazardous waste. (See part 261 and the background documents for the 
listed waste.)
    Generators remain obligated under RCRA to confirm whether their 
waste remains non-hazardous based on the hazardous waste 
characteristics even if EPA has ``delisted'' the waste.

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

    Besides considering the criteria in 40 CFR 260.22(a) and Sec.  
3001(f) of RCRA, 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 EPA listed the waste, if a 
reasonable basis exists that these additional factors could cause the 
waste to be hazardous.
    EPA must also consider as hazardous waste mixtures containing 
listed hazardous wastes and wastes derived from treating, storing, or 
disposing of listed hazardous waste. See Sec.  261.3(a)(2)(iii and iv) 
and (c)(2)(i), called the ``mixture'' and ``derived-from'' rules, 
respectively. These wastes are also eligible for exclusion and remain 
hazardous wastes until excluded. See 66 FR 27266 (May 16, 2001).

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

A. What waste did Samsung petition EPA to delist?

    In November 2015, Samsung petitioned EPA to exclude from the lists 
of hazardous wastes contained in Sec. Sec.  261.31 and 261.32, filter 
cake (F006) generated from its facility located in Austin, Texas. The 
waste falls under the classification of listed waste pursuant to 
Sec. Sec.  261.31 and 261.32. Specifically, in its petition, Samsung 
requested that EPA grant a conditional exclusion for 750 cubic yards of 
F006 filter cake.

B. Who is Samsung and what process does it use to generate the 
petitioned waste?

    Samsung Austin Semiconductor (SAS) operates a semiconductor 
manufacturing facility located at 12100 Samsung Blvd. in Austin, Texas. 
SAS manufactures semiconductors used in logic chips for various 
applications, including cellular phones and tablet PCs. The SAS 
facility consists of two wafer manufacturing operations. The Main Fab, 
Mod 1 area was constructed in June 2007 as a 300 mm NANO Flash Fab. The 
Fab that was constructed in 1998 was decommissioned and subsequently 
upgraded to convert it from a trailing-edge DRAM Fab to a copper back 
end of the line (BEOL) Fab for the support of the adjacent Main Fab 
operations (CuFab). The integrated SAS operations are capable of 
manufacturing 3X NANO technology and copper interconnects. In addition, 
the Main Fab, Mod 2 area was constructed in May 2011 to manufacture 45X 
Nanotechnology for logic chips for various applications.
    Since 2007, SAS's manufacturing process has used copper during 
wafer fabrication to enhance electron migration and reduce the width of 
the circuitry of the microprocessors. The copper application is 
performed in a copper metallization process, in which copper is applied 
to the wafer in an electroplating operation. Electric current is 
applied to copper anodes in an acidic bath to deposit a microscopic 
layer of copper on selected portions of the wafer. Following the 
electroplating operation, wafers go through a second bath prior to 
entering the etching step. The etching step is performed to clean the 
edges of the wafer. Silica slurry is then used to flatten the surface 
of the wafer. Wastewater from these processes is treated in the copper 
wastewater (CuWW) treatment system that is part of the plant's 
industrial wastewater treatment (IWT) system. Sludge generated in the 
CuWW treatment system is collected in a tank that feeds a plate and 
frame filter press. The sludge that is processed in the filter press 
generates a filter cake which falls from the filter press into a roll-
off for storage onsite in a less than 90-day waste storage unit. The 
filter cake is transported off-site to a hazardous waste landfill for 
disposal.

C. How did Samsung sample and analyze the data in this petition?

    To support its petition, Samsung submitted: Historical information 
on waste generation and management practices; and analytical results 
from eight samples for total and TCLP concentrations of compounds of 
concern (COC)s.

D. What were the results of Samsung's analysis?

    EPA believes that the descriptions of the Samsung analytical 
characterization provide a reasonable basis to grant Samsung's petition 
for an exclusion of the filter cake sludge. EPA believes the data 
submitted in support of the petition show the filter cake is non-
hazardous. Analytical data for the filter cake samples were used in the 
DRAS to develop delisting levels. The data summaries for COCs are 
presented in Table I. EPA has reviewed the sampling procedures used by 
Samsung and has determined that it satisfies EPA criteria for 
collecting representative samples of the variations in constituent 
concentrations in the filter cake. In addition, the data submitted in 
support of the petition show that constituents in Samsung's waste are 
presently below health-based levels used in the delisting decision-
making. EPA believes that Samsung has successfully demonstrated that 
the copper filter cake is non-hazardous.

[[Page 32522]]



                      Table 1--Analytical Results/Maximum Allowable Delisting Concentration
                        [Copper Filter Cake, Samsung Austin Semiconductor, Austin, Texas]
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                                                                   Maximum total   Maximum TCLP    Maximum TCLP
                           Constituent                             concentration   concentration     delisting
                                                                      (mg/kg)         (mg/L)       level (mg/L)
----------------------------------------------------------------------------------------------------------------
Acetone.........................................................          0.0013            0.24          2070.0
Arsenic.........................................................             3.6           0.098            1.66
Barium..........................................................            5.30            0.13           100.0
Cadmium.........................................................            0.75           0.004           0.362
Carbon disulfide................................................             2.7           0.043          224.75
Chromium........................................................              42            0.12             5.0
Chromium(VI) (+6)...............................................             1.7           0.072             5.0
Cobalt..........................................................             1.6           0.035            1.36
Copper..........................................................           14600             5.4            97.1
Lead............................................................             6.3            0.11            2.45
Nickel..........................................................            25.7           0.078            53.8
Selenium........................................................             1.4           0.072             1.0
Silver..........................................................            0.95          0.0012             5.0
Thallium........................................................             1.7              ND          0.1458
Tin.............................................................             7.6              ND            22.5
Toluene.........................................................             2.5              ND            60.1
Vanadium........................................................            25.8           0.014           14.36
Zinc............................................................            43.0            0.21             797
----------------------------------------------------------------------------------------------------------------
Notes: These levels represent the highest constituent concentration found in any one sample and does not
  necessarily represent the specific level found in one sample.

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

    For this delisting determination, EPA used such information 
gathered to identify plausible exposure routes (i.e. groundwater, 
surface water, air) for hazardous constituents present in the 
petitioned waste. EPA determined that disposal in a surface impoundment 
is the most reasonable, worst-case disposal scenario for Samsung's 
petitioned waste. EPA applied the Delisting Risk Assessment Software 
(DRAS) described in 65 FR 58015 (September 27, 2000) and 65 FR 75637 
(December 4, 2000), 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 
Samsung's petitioned waste on human health and the environment. A copy 
of this software can be found on the world wide web at http://www.epa.gov/reg5rcra/wptdiv/hazardous/delisting/dras-software.html. In 
assessing potential risks to groundwater, EPA used the maximum waste 
volumes and the maximum reported extract concentrations as inputs to 
the DRAS program to estimate the constituent concentrations in the 
groundwater at a hypothetical receptor well down gradient from the 
disposal site. Using the risk level (carcinogenic risk of 10\-5\ and 
non-cancer hazard index of 1.0), the DRAS program can back-calculate 
the acceptable receptor well concentrations (referred to as compliance-
point concentrations) using standard risk assessment algorithms and EPA 
health-based numbers. Using the maximum compliance-point concentrations 
and EPA's Composite Model for Underflow water Migration with 
Transformation Products (EPACMTP) fate and transport modeling factors, 
the DRAS further back-calculates the maximum permissible waste 
constituent concentrations not expected to exceed the compliance-point 
concentrations in groundwater.
    EPA believes that the EPACMTP fate and transport model represents a 
reasonable worst-case scenario for possible groundwater contamination 
resulting from disposal of the petitioned waste in a surface 
impoundment, and that a reasonable worst-case scenario is appropriate 
when evaluating whether a waste should be relieved of the protective 
management constraints of RCRA Subtitle C. The use of some reasonable 
worst-case scenarios resulted in conservative values for the 
compliance-point concentrations and ensures that the waste, once 
removed from hazardous waste regulation, will not pose a significant 
threat to human health or the environment.
    The DRAS also uses the maximum estimated waste volumes and the 
maximum reported total concentrations to predict possible risks 
associated with releases of waste constituents through surface pathways 
(e.g. volatilization from the impoundment). As in the above groundwater 
analyses, the DRAS uses the risk level, the health-based data and 
standard risk assessment and exposure algorithms to predict maximum 
compliance-point concentrations of waste constituents at a hypothetical 
point of exposure. Using fate and transport equations, the DRAS uses 
the maximum compliance-point concentrations and back-calculates the 
maximum allowable waste constituent concentrations (or ``delisting 
levels'').
    In most cases, because a delisted waste is no longer subject to 
hazardous waste control, EPA is generally unable to predict, and does 
not presently control, how a petitioner will manage a waste after 
delisting. Therefore, EPA currently believes that it is inappropriate 
to consider extensive site-specific factors when applying the fate and 
transport model. EPA does control the type of unit where the waste is 
disposed. The waste must be disposed in the type of unit the fate and 
transport model evaluates.
    The DRAS results which calculate the maximum allowable 
concentration of chemical constituents in the waste are presented in 
Table I. Based on the comparison of the DRAS and TCLP Analyses results 
found in Table I, the petitioned waste should be delisted because no 
constituents of concern tested are likely to be present or formed as 
reaction products or by-products in Samsung waste.

F. What did EPA conclude about Samsung's waste analysis?

    EPA concluded, after reviewing Samsung's processes that no other 
hazardous constituents of concern, other than those for which tested, 
are likely to be present or formed as reaction

[[Page 32523]]

products or by-products in the waste. In addition, on the basis of 
explanations and analytical data provided by Samsung, pursuant to Sec.  
260.22, EPA concludes that the petitioned waste does not exhibit any of 
the characteristics of ignitability, corrosivity, reactivity or 
toxicity. See Sec. Sec.  261.21, 261.22 and 261.23, respectively.

G. What other factors did EPA consider in its evaluation?

    During the evaluation of Samsung's petition, EPA also considered 
the potential impact of the petitioned waste via non-groundwater routes 
(i.e., air emission and surface runoff). With regard to airborne 
dispersion in particular, EPA believes that exposure to airborne 
contaminants from Samsung's petitioned waste is unlikely. Therefore, no 
appreciable air releases are likely from Samsung's waste under any 
likely disposal conditions. EPA evaluated the potential hazards 
resulting from the unlikely scenario of airborne exposure to hazardous 
constituents released from Samsung's waste in an open landfill. The 
results of this worst-case analysis indicated that there is no 
substantial present or potential hazard to human health and the 
environment from airborne exposure to constituents from Samsung's 
Copper Filter cake.

H. What is EPA's evaluation of this delisting petition?

    The descriptions of Samsung's hazardous waste process and 
analytical characterization provide a reasonable basis for EPA to grant 
the exclusion. The data submitted in support of the petition show that 
constituents in the waste are below the leachable concentrations (see 
Table I). EPA believes that Samsung's Filter cake sludge will not 
impose any threat to human health and the environment.
    Thus, EPA believes Samsung should be granted an exclusion for the 
Filter cake sludge. EPA believes the data submitted in support of the 
petition show Samsung's Filter cake sludge is non-hazardous. The data 
submitted in support of the petition show that constituents in 
Samsung's waste is presently below the compliance point concentrations 
used in the delisting decision and would not pose a substantial hazard 
to the environment. EPA believes that Samsung has successfully 
demonstrated that the Filter cake sludge is non-hazardous.
    EPA therefore, proposes to grant an exclusion to Samsung in Austin, 
Texas, for the copper filter cake described in its petition. EPA's 
decision to exclude this waste is based on descriptions of the 
treatment activities associated with the petitioned waste and 
characterization of the copper filter cake.
    If EPA finalizes the proposed rule, EPA will no longer regulate the 
petitioned waste under parts 262 through 268 and the permitting 
standards of part 270.

IV. Next Steps

A. With what conditions must the petitioner comply?

    The petitioner, Samsung, must comply with the requirements 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 
Samsung must test the Copper filter cake, below which these wastes 
would be considered non-hazardous. EPA selected the set of inorganic 
and organic 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 inorganic and organic constituents list 
from the composition of the waste, descriptions of Samsung'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 Samsung manages and 
disposes of any Copper Filter cake that contains hazardous levels of 
inorganic and organic constituents according to Subtitle C of RCRA. 
Managing the copper filter cake as a hazardous waste until the 
verification testing is performed will protect against improper 
handling of hazardous material. If EPA determines that the data 
collected under this paragraph do not support the data provided for 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 cannot begin until the verification sampling 
is completed.
(3) Verification Testing Requirements
    Samsung must complete a rigorous verification testing program on 
the filter cake to assure that the solids do not exceed the maximum 
levels specified in paragraph (1) of the exclusion language. This 
verification program will occur as wastes are removed from the roll off 
box and scheduled for disposal. The volume of wastes removed from the 
roll off boxes may not exceed 750 cubic yards of sludge material 
annually. Any copper filter cake waste in excess of 750 cubic yards 
must be disposed as hazardous wastes. If EPA determines that the data 
collected under this paragraph do not support the data provided for the 
petition, the exclusion will not cover the generated wastes. If the 
data from the verification testing program demonstrate that the Filter 
cake meet the delisting levels, Samsung may commence disposing of the 
copper filter cake. EPA will notify Samsung in writing, if and when it 
begins and ends disposal of the copper filter cake.
(4) Data Submittals
    To provide appropriate documentation that Samsung's Copper filter 
cake meet the delisting levels, Samsung must compile, summarize, and 
keep delisting records on-site for a minimum of five years. It should 
keep all analytical data obtained through paragraph (3) of the 
exclusion language including quality control information for five 
years. Paragraph (4) of the exclusion language requires that Samsung 
furnish these data upon request for inspection by any employee or 
representative of EPA or the State of Texas.
    If the proposed exclusion is made final, it will apply only to 750 
cubic yards of Copper Filter cake generated at the Samsung Austin 
Refinery after successful verification testing. EPA would require 
Samsung to file a new delisting petition for waste generated in excess 
of the 750 cubic yards and treat the solids as hazardous waste.
    Samsung must manage waste volumes greater than as generated wet 750 
cubic yards of the Copper Filter cake as hazardous until EPA grants a 
new exclusion.
    When this exclusion becomes final, Samsung's management of the 
wastes covered by this petition would be relieved from Subtitle C 
jurisdiction, the Copper Filter cake from Samsung will be disposed of 
in an authorized, solid waste landfill (e.g. RCRA Subtitle D landfill, 
commercial/industrial solid waste landfill, etc.).
(5) Reopener
    The purpose of paragraph (6) of the exclusion language is to 
require Samsung 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. Samsung must also use this procedure, if the waste 
sample in the annual testing fails to meet the levels found in 
paragraph (1).

[[Page 32524]]

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 Samsung 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 that 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. EPA may 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 Sec.  553 (b).
(6) Notification Requirements
    In order to adequately track wastes that have been delisted, EPA is 
requiring that Samsung provide a one-time notification to any state 
regulatory agency through which or to which the delisted waste is being 
carried. Samsung must provide this notification sixty (60) days before 
commencing this activity.

B. What happens if Samsung violates the terms and conditions?

    If Samsung violates the terms and conditions established in the 
exclusion, EPA will start 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 Samsung to conduct the appropriate waste analysis 
and comply with the criteria explained above in paragraph (1) of the 
exclusion.

V. Public Comments

A. How can I as an interested party submit comments?

    EPA is requesting public comments on this proposed decision. Please 
send three copies of your comments. Send two copies to Kishor 
Fruitwala, Section Chief (6MM-RP), Multimedia Division, Environmental 
Protection Agency (EPA), 1445 Ross Avenue, Suite 1200, Dallas, Texas 
75202. Identify your comments at the top with this regulatory docket 
number: ``EPA-R6-RCRA-2017-0254, Samsung Austin Semiconductor Copper 
Filter Cake Delisting.'' You may submit your comments electronically to 
Michelle Peace at [email protected].
    You should submit requests for a hearing to Kishor Fruitwala, 
Section Chief (6MM-RP), Multimedia Division, Environmental Protection 
Agency (EPA), 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202.

B. How may I review the docket or obtain copies of the proposed 
exclusions?

    You may review the RCRA regulatory docket for this proposed rule at 
the Environmental Protection Agency Region 6, 1445 Ross Avenue, Suite 
1200, Dallas, Texas 75202. It is available for viewing in EPA Freedom 
of Information Act Review Room from 9:00 a.m. to 4:00 p.m., Monday 
through Friday, excluding Federal holidays. Call (214) 665-6444 for 
appointments. The public may copy material from any regulatory docket 
at no cost for the first 100 pages, and at fifteen cents per page for 
additional copies. Docket materials may be available either 
electronically in http://www.regulations.gov and you may also request 
the electronic files of the docket which do not appear on 
regulations.gov.

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 sections 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 
section 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 section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 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

[[Page 32525]]

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 
section 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 section 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 an authorized, solid waste landfill 
(e.g. RCRA Subtitle D landfill, commercial/industrial solid waste 
landfill, etc.). 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.

Lists 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 15, 2017.
Wren Stenger,
Director, Multimedia Division, Region 6.
    For the reasons set out in the preamble, 40 CFR part 261 is 
proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
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.

0
2. In table 1 of appendix IX to part 261 add the entry ``Samsung'' in 
alphabetical order 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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
Samsung.................................  Austin, TX.................  Copper Filter Cake (EPA Hazardous Waste
                                                                        Numbers F006) generated at a maximum
                                                                        rate of as 750 cubic yards annually.
                                                                       For the exclusion to be valid, Samsung
                                                                        must implement a verification testing
                                                                        program for each of the waste streams
                                                                        that meets the following Paragraphs:
                                                                       (1) Delisting Levels: All concentrations
                                                                        for those constituents must not exceed
                                                                        the maximum allowable concentrations in
                                                                        mg/l specified in this paragraph.
                                                                       Copper Filter Cake. Leachable
                                                                        Concentrations (mg/l): Acetone--2070.0;
                                                                        Arsenic--1.66; Barium--100.0; Cadmium--
                                                                        0.362; Carbon Disulfide--224.75;
                                                                        Chromium--5.0; Chromium (VI)--5.0;
                                                                        Cobalt--1.36; Copper--97.1; Lead--2.45;
                                                                        Nickel--53.8; Selenium--1.0; Silver--
                                                                        5.0; Thallium--0.01458; Tin--22.5;
                                                                        Toluene--60.1; Vanadium--14.36; Zinc--
                                                                        797.
                                                                       (2) Waste Holding and Handling:
                                                                       (A) Waste classification as non-hazardous
                                                                        cannot begin until compliance with the
                                                                        limits set in paragraph (1) for the
                                                                        Copper Filter cake is verified.
                                                                       (B) If constituent levels in any sample
                                                                        and retest sample taken by Samsung
                                                                        exceed any of the delisting levels set
                                                                        in paragraph (1) for the Copper Filter
                                                                        cake, Samsung must do the following:
                                                                       (i) Notify EPA in accordance with
                                                                        paragraph (5) and
                                                                       (ii) manage and dispose the Copper Filter
                                                                        cake as hazardous waste generated under
                                                                        Subtitle C of RCRA.
                                                                       (3) Testing Requirements:
                                                                       Samsung must perform analytical testing
                                                                        by sampling and analyzing the Copper
                                                                        Filter cake as follows:
                                                                       (i) Collect a representative sample of
                                                                        the Copper Filter cake for analysis of
                                                                        all constituents listed in paragraph (1)
                                                                        prior to disposal.
                                                                       (ii) The samples for the annual testing
                                                                        shall be a representative sample
                                                                        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 Samsung
                                                                        Copper filter cake is representative for
                                                                        all constituents listed in paragraph
                                                                        (1).
                                                                       (4) Data Submittals:

[[Page 32526]]

 
                                                                       Samsung must submit the information
                                                                        described below. If Samsung 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).
                                                                        Samsung must:
                                                                       (A) Submit the data obtained through
                                                                        paragraph 3 to the Section Chief, 6MM-
                                                                        RP, Multimedia Division, U.S.
                                                                        Environmental Protection Agency Region
                                                                        6, 1445 Ross Ave., Suite 1200, Dallas,
                                                                        Texas 75202, within the time specified.
                                                                        All supporting data can be submitted on
                                                                        CD-ROM or comparable electronic media.
                                                                       (B) Compile records of analytical data
                                                                        from paragraph (3), summarized, and
                                                                        maintained on-site for a minimum of five
                                                                        years.
                                                                       (C) Furnish these records and data when
                                                                        either EPA or the State of Texas
                                                                        requests them for inspection.
                                                                       (D) Send along with all data a signed
                                                                        copy of the following certification
                                                                        statement, to attest to the truth and
                                                                        accuracy of the data submitted:
                                                                       ``Under civil and criminal penalty of law
                                                                        for the making or submission of false or
                                                                        fraudulent statements or representations
                                                                        (pursuant to the applicable provisions
                                                                        of the Federal Code, which include, but
                                                                        may not be limited to, 18 U.S.C. 1001
                                                                        and 42 U.S.C. 6928), I certify that the
                                                                        information contained in or accompanying
                                                                        this document is true, accurate and
                                                                        complete.
                                                                       As to the (those) identified section(s)
                                                                        of this document for which I cannot
                                                                        personally verify its (their) truth and
                                                                        accuracy, I certify as the company
                                                                        official having supervisory
                                                                        responsibility for the persons who,
                                                                        acting under my direct instructions,
                                                                        made the verification that this
                                                                        information is true, accurate and
                                                                        complete.
                                                                       If any of this information is determined
                                                                        by EPA in its sole discretion to be
                                                                        false, inaccurate or incomplete, and
                                                                        upon conveyance of this fact to the
                                                                        company, I recognize and agree that this
                                                                        exclusion of waste will be void as if it
                                                                        never had effect or to the extent
                                                                        directed by EPA and that the company
                                                                        will be liable for any actions taken in
                                                                        contravention of the company's RCRA and
                                                                        CERCLA obligations premised upon the
                                                                        company's reliance on the void
                                                                        exclusion.''
                                                                       (5) Reopener:
                                                                       (A) If, anytime after disposal of the
                                                                        delisted waste Samsung possesses or is
                                                                        otherwise made aware of any
                                                                        environmental data (including but not
                                                                        limited to underflow water data or
                                                                        ground water monitoring data) or any
                                                                        other data relevant to the delisted
                                                                        waste indicating that any constituent
                                                                        identified for the delisting
                                                                        verification testing is at level higher
                                                                        than the delisting level allowed by the
                                                                        Division Director in granting the
                                                                        petition, then the facility must report
                                                                        the data, in writing, to the Division
                                                                        Director within 10 days of first
                                                                        possessing or being made aware of that
                                                                        data.
                                                                       (B) If either the verification testing
                                                                        (and retest, if applicable) of the waste
                                                                        does not meet the delisting requirements
                                                                        in paragraph 1, Samsung must report the
                                                                        data, in writing, to the Division
                                                                        Director within 10 days of first
                                                                        possessing or being made aware of that
                                                                        data.
                                                                       (C) If Samsung fails to submit the
                                                                        information described in paragraphs
                                                                        (5),(6)(A) or (6)(B) or if any other
                                                                        information is received from any source,
                                                                        the Division Director will make a
                                                                        preliminary determination as to whether
                                                                        the reported information requires EPA
                                                                        action to protect human health and/or
                                                                        the environment. Further action may
                                                                        include suspending, or revoking the
                                                                        exclusion, or other appropriate response
                                                                        necessary to protect human health and
                                                                        the environment.
                                                                       (D) If the Division Director determines
                                                                        that the reported information requires
                                                                        action by EPA, the Division Director
                                                                        will notify the facility in writing of
                                                                        the actions the Division Director
                                                                        believes are necessary to protect human
                                                                        health and the environment. The notice
                                                                        shall include a statement of the
                                                                        proposed action and a statement
                                                                        providing the facility with an
                                                                        opportunity to present information as to
                                                                        why the proposed EPA action is not
                                                                        necessary. The facility shall have 10
                                                                        days from receipt of the Division
                                                                        Director's notice to present such
                                                                        information.
                                                                       (E) Following the receipt of information
                                                                        from the facility described in paragraph
                                                                        (6)(D) or (if no information is
                                                                        presented under paragraph (6)(D)) the
                                                                        initial receipt of information described
                                                                        in paragraphs (5), (6)(A) or (6)(B), the
                                                                        Division Director will issue a final
                                                                        written determination describing EPA
                                                                        actions that are necessary to protect
                                                                        human health and/or the environment. Any
                                                                        required action described in the
                                                                        Division Director's determination shall
                                                                        become effective immediately, unless the
                                                                        Division Director provides otherwise.
                                                                       (6) Notification Requirements:
                                                                       Samsung must do the following before
                                                                        transporting the delisted waste. Failure
                                                                        to provide this notification will result
                                                                        in a violation of the delisting petition
                                                                        and a possible revocation of the
                                                                        decision.
                                                                       (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) For onsite disposal, a notice should
                                                                        be submitted to the State to notify the
                                                                        State that disposal of the delisted
                                                                        materials has begun.

[[Page 32527]]

 
                                                                       (C) Update one-time written notification,
                                                                        if it ships the delisted waste into a
                                                                        different disposal facility.
                                                                       (D) Failure to provide this notification
                                                                        will result in a violation of the
                                                                        delisting exclusion and a possible
                                                                        revocation of the decision.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 2017-14829 Filed 7-13-17; 8:45 am]
BILLING CODE 6560-50-P