[Federal Register Volume 65, Number 177 (Tuesday, September 12, 2000)]
[Rules and Regulations]
[Pages 54955-54965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-23239]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-6867-7]
RIN 2090-AA11
Project XL Site-Specific Rulemaking for the IBM Semiconductor
Manufacturing Facility in Essex Junction, VT
AGENCY: Environmental Protection Agency (EPA).
[[Page 54956]]
ACTION: Final rule.
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SUMMARY: This rule will allow the implementation of a pilot project
under the Project XL program that will provide site-specific regulatory
flexibility under the Resource Conservation and Recovery Act (RCRA), as
amended, for the International Business Machines Corporation (IBM)
semiconductor manufacturing facility in Essex Junction, Vermont. The
principal objective of this IBM Vermont XL project is to determine
whether the wastewater treatment sludge resulting from an innovative
copper metallization process (i.e., an electroplating operation) should
be designated a RCRA hazardous waste (F006), and thus be subject to
RCRA regulatory controls. If, as a result of this XL project, the
Agency determines that the wastewater treatment sludge (which does not
otherwise exhibit a hazardous characteristic) need not be subject to
RCRA hazardous waste regulations to be protective of human health and
the environment and removes such sludges from the hazardous waste
program, this would not only enhance the cost-effectiveness of the
innovative process by removing the costs of such regulatory controls,
but could also encourage the development and installation of this
innovative process (or similar ones) by other semiconductor
manufacturers. To achieve this, this rule provides an exemption for the
copper metallization process from the narrative listing description of
electroplating operations that result in an F006 wastewater treatment
sludge.
DATES: This final rule is effective September 12, 2000.
ADDRESSES: A docket containing the rule, Final Project Agreement,
supporting materials, and public comments is available for public
inspection and copying at the RCRA Information Center (RIC), located at
Crystal Gateway, 1235 Jefferson Davis Highway, First Floor, Arlington,
Virginia. The RIC is open from 9 am to 4 pm Monday through Friday,
excluding Federal holidays. The public is encouraged to phone in
advance to review docket materials. Appointments can be scheduled by
phoning the Docket Office at (703) 603-9230. Refer to RCRA docket
number F-2000-IBMP-FFFFF. The public may copy a maximum of 100 pages
from any regulatory docket at no charge. Additional copies cost 15
cents per page.
Project materials are also available for review for today's action
on the world wide web at http://www.epa.gov/projectxl/.
A duplicate copy of the docket is available for inspection and
copying at U.S. EPA New England, One Congress Street, Suite 1100 (LIB),
Boston MA, 02114-2023 during normal business hours. Persons wishing to
view the duplicate docket at the Boston location are encouraged to
contact Mr. John Moskal or Mr. George Frantz in advance, by telephoning
(617) 918-1826 or (617) 918-1883, respectively. Information is also
available on the world wide web at http://www.epa.gov.ProjectXL.
FOR FURTHER INFORMATION CONTACT: Mr. John Moskal or Mr. George Frantz,
U.S. Environmental Protection Agency, New England (SPP), Assistance and
Pollution Prevention Division, One Congress Street, Suite 1100, Boston,
MA, 02114-2023. Mr. Moskal can be reached at (617) 918-1826 (or
[email protected]) and Mr. Frantz can be reached at (617) 918-1883
(or [email protected]). Further information on today's action may
also be obtained on the world wide web at http://www.epa.gov/projectxl.
SUPPLEMENTARY INFORMATION:
Outline of Today's Rule
The information presented in this preamble is organized as follows:
I. Authority
II. Overview of Project XL
III. Overview of the IBM Vermont XL Pilot Project
A. To Which Facilities Will the Rule Apply?
B. What Problems will the IBM Vermont XL Project Attempt to
Address?
1. Background on Hazardous Waste Identification
2. Background on the F006 Hazardous Waste Listing
3. Site-Specific Considerations at the IBM Vermont Facility
C. What Solutions Are Being Tested by the IBM Vermont XL
Project?
D. What Regulatory Changes Are Being Promulgated to Implement
this Project?
1. Federal Regulatory Changes
2. State Regulatory Changes
E. Why is EPA Supporting this Approach to Removing a Waste From
a Hazardous Waste Listing?
F. How Have Various Stakeholders Been Involved in this Project?
G. How Will this Project Result in Cost Savings and Paperwork
Reduction?
H. What Are the Terms of the IBM Vermont XL Project and How Will
They Be Enforced?
I. How Long Will this Project Last and When Will It Be Complete?
IV. Additional Information
A. How Does this Rule Comply With Executive Order 12866?
B. Is a Regulatory Flexibility Analysis Required?
C. Is an Information Collection Request Required for this
Project Under the Paperwork Reduction Act?
D. Does this Project Trigger the Requirements of the Unfunded
Mandates Reform Act?
E. RCRA & Hazardous and Solid Waste Amendments
1. Applicability of Rules in Authorized States
2. Effect on Vermont Authorization
F. How Does this Rule Comply with Executive Order 13045:
Protection of Children from Environmental Health Risks and Safety
Risks?
G. Does this Rule Comply with Executive Order 12875: Enhancing
Intergovernmental Partnerships?
H. How Does this Rule Comply with Executive Order 13084:
Consultation and Coordination with Indian Tribal Governments?
I. Does this Rule Comply with the National Technology Transfer
and Advancement Act?
I. Authority
EPA is publishing this regulation under the authority of sections
2002, 3001, 3002, 3003, 3006, 3010, and 7004 of the Solid Waste
Disposal Act of 1970, as amended by the Resource Conservation and
Recovery Act, as amended (42 U.S.C. 6912, 6921, 6922, 6923, 6926, 6930,
6937, 6938, and 6974).
II. Overview of Project XL
The Final Project Agreement (FPA) sets forth the intentions of EPA,
VTDEC, and the IBM Essex Junction, VT facility with regard to a project
developed under Project XL, an EPA initiative to allow regulated
entities to achieve better environmental results with limited
regulatory flexibility. The regulation, along with the FPA, will
facilitate implementation of the project. Project XL--``eXcellence and
Leadership''-- was announced on March 16, 1995, as a central part of
the National Performance Review and the Agency's effort to reinvent
environmental protection. See 60 FR 27282 (May 23, 1995). Project XL
provides a limited number of private and public regulated entities an
opportunity to develop their own pilot projects to request regulatory
flexibility that will result in environmental protection that is
superior to what would be achieved through compliance with current and
reasonably-anticipated future regulations. These efforts are crucial to
EPA's ability to test new strategies that reduce regulatory burden and
promote economic growth while achieving better environmental and public
health protection. EPA intends to evaluate the results of this and
other Project XL projects to determine which specific elements of the
project(s), if any, should be more broadly applied to other
[[Page 54957]]
regulated entities for the benefit of both the economy and the
environment.
Under Project XL, participants in four categories--facilities,
industry sectors, governmental agencies and communities--are offered
the flexibility to develop common sense, cost-effective strategies that
will replace or modify specific regulatory requirements, on the
condition that they produce and demonstrate superior environmental
performance.
The XL program is intended to encourage EPA to experiment with
potentially promising regulatory approaches, both to assess whether
they provide benefits at the specific facility affected, and whether
they should be considered for wider application. Such pilot projects
allow EPA to proceed more quickly than would be possible when
undertaking changes on a nationwide basis. As part of this
experimentation, EPA may try out approaches or legal interpretations
that depart from, or are even inconsistent with, longstanding Agency
practice, so long as those interpretations are within the broad range
of discretion enjoyed by the Agency in interpreting the statutes that
it implements. EPA may also modify rules, on a site-specific basis,
that represent one of several possible policy approaches within a more
general statutory directive, so long as the alternative being used is
permissible under the statute.
Adoption of such alternative approaches or interpretations in the
context of a given XL project does not, however, signal EPA's
willingness to adopt that interpretation as a general matter, or even
in the context of other XL projects. It would be inconsistent with the
forward-looking nature of these pilot projects to adopt such innovative
approaches prematurely on a widespread basis without first determining
whether they are viable in practice and successful in the particular
projects that embody them. Furthermore, as EPA indicated in announcing
the XL program, EPA expects to adopt only a limited number of carefully
selected projects. These pilot projects are not intended to be a means
for piecemeal revision of entire programs. Depending on the results in
these projects, EPA may or may not be willing to consider adopting the
alternative interpretation again, either generally or for other
specific facilities.
EPA believes that adopting alternative policy approaches and
interpretations, on a limited, site-specific basis and in connection
with a carefully selected pilot project, is consistent with the
expectations of Congress about EPA's role in implementing the
environmental statutes (provided that the Agency acts within the
discretion allowed by the statute). Congress' recognition that there is
a need for experimentation and research, as well as ongoing re-
evaluation of environmental programs, is reflected in a variety of
statutory provisions, such as section 8001 of RCRA.
XL Criteria
To participate in Project XL, applicants must develop alternative
environmental performance objectives pursuant to eight criteria:
Superior environmental performance; cost savings and paperwork
reduction; local stakeholder involvement and support; test of an
innovative strategy; transferability; feasibility; identification of
monitoring, reporting and evaluation methods; and avoidance of shifting
risk burden. The XL projects must have the full support of the affected
Federal, State, local and tribal agencies to be selected.
For more information about the XL criteria, readers should refer to
the two descriptive documents published in the Federal Register (60 FR
27282, May 23, 1995 and 62 FR 19872, April 23, 1997), and the December
1, 1995 ``Principles for Development of Project XL Final Project
Agreements'' document. For further discussion as to how the IBM Vermont
XL project addresses the XL criteria, readers should refer to the Final
Project Agreement available from the EPA RCRA docket, the U.S. EPA New
England library, or the Project XL web page (see ADDRESSES section of
today's preamble).
XL Program Phases
The Project XL program is compartmentalized into four basic
developmental phases: The initial pre-proposal phase where the project
sponsor comes up with an innovative concept that they would like EPA to
consider as an XL pilot project; the second phase where the project
sponsor works with EPA and interested stakeholders in developing an XL
proposal; the third phase where EPA, local regulatory agencies, and
other interested stakeholders review the XL proposal; and the fourth
phase where the project sponsor works with EPA, local regulatory
agencies, and interested stakeholders in developing a Final Project
Agreement and legal mechanism. After promulgation of the final rule (or
other legal mechanism) for the XL pilot, and after the Final Project
Agreement has been signed by all designated parties, the XL pilot
project proceeds onto implementation and evaluation.
Final Project Agreement
The Final Project Agreement (FPA) is a written voluntary agreement
between the project sponsor and regulatory agencies. The FPA contains a
detailed description of the pilot project. It addresses the eight
Project XL criteria, and the expectation of the Agency that the XL
project will meet those criteria. The FPA identifies performance goals
and indicators that the project is yielding the expected environmental
benefits, and specifically addresses the manner in which the project is
expected to produce superior environmental benefits. The FPA also
discusses the administration of the FPA, including dispute resolution
and termination. The FPA for this XL project is available for review in
the docket for today's action, and also is available on the world wide
web at http://www.epa.gov/projectxl/.
III. Overview of the IBM Vermont XL Project
Today's rule will facilitate implementation of the FPA (the
document that embodies EPA's intent to implement this project) that has
been developed by EPA, the Vermont Department of Environmental
Conservation (VTDEC), the IBM Essex Junction, VT facility, and other
stakeholders. Today's rule, will not be effective in Vermont until the
State has made conforming changes to its hazardous waste program.
A. To Which Facilities Will the Rule Apply?
This rule will apply only to the IBM Essex Junction, VT facility.
Further, the regulatory modification only affects the copper
metallization plating process (and the wastes generated by that
process) that is the focus of this XL project; wastes resulting from
any other operations at the facility are not affected by this rule.
B. What Problems Will the IBM Vermont XL Project Attempt To Address?
IBM does not believe the innovative copper metallization process it
uses should be included among those electroplating operations that
result in a wastewater treatment sludge that is specifically listed as
a hazardous waste (F006), and that the regulatory controls (with
associated increases in costs) provide no benefit to the environment.
1. Background on Hazardous Waste Identification
Under the current RCRA regulatory framework, the generator of a
waste is responsible for determining whether the waste is hazardous
(see 40 CFR 262.11). There are two ways that a waste is
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determined to be hazardous; either the waste exhibits a characteristic
of a hazardous waste as defined in 40 CFR 261.21, 261.22, 261.23, and
261.24, or the Agency has identified and specifically listed it as a
hazardous waste in 40 CFR 261.31, 261.32, and 261.33. The wastewater
treatment sludge that is the focus of this XL project typically does
not exhibit a characteristic of hazardous waste; however, it does meet
the narrative listing description for F006, generally described as
wastewater treatment sludge from electroplating operations. In
promulgating the hazardous waste listings, EPA presented the basis for
the listings in 40 CFR part 261, appendix VII (e.g., the basis for the
F006 listing is the presence of cadmium, hexavalent chromium, nickel,
and cyanide (complexed) in high enough concentrations to present a risk
to human health and the environment if the waste is mismanaged).
However, the hazardous waste listings are implemented based on their
narrative descriptions, not by a waste-specific assessment of the
hazardous constituents the wastes contain (such an assessment is how
the ``toxicity characteristic'' is implemented pursuant to 40 CFR
261.24). To address those wastes that meet the narrative description of
a listed hazardous waste but which the generator believes are
nonhazardous, RCRA regulations provide a mechanism for the generator to
petition the Agency for a determination that the wastes generated at
their facility should not be regulated as hazardous (i.e., a
``delisting'' pursuant to 40 CFR 260.22).
2. Background on the F006 Hazardous Waste Listing
On May 19, 1980, EPA promulgated the F006 hazardous waste listing,
thereby designating wastewater treatment sludges from electroplating
operations to be a RCRA hazardous waste (see 45 FR 33084). This
wastestream is typically generated through the chemical treatment
(e.g., lime precipitation) of wastewaters generated by plating
operations to precipitate out certain toxic metals. These wastewaters
are typically made up of spent plating/coating solutions and
rinsewaters (from the rinsing of parts after being plated). As
discussed in more detail in the background document supporting the
listing of electroplating wastewater treatment sludge (F006),
Electroplating and Metal Finishing Operations (pages 105-143)
(available in the docket for this project), the Agency noted that while
there are many various plating processes covered by the listing, they
all generally involve hazardous constituents of concern at
concentration levels requiring regulatory oversight to ensure that the
management and disposal of such sludges will not result in damages to
the environment or otherwise present a risk to human health and the
environment. The metal constituents found to be commonly used in
electroplating operations include cadmium, lead, chromium (in
hexavalent form), copper, nickel, zinc, gold and silver. Cyanides,
strong acids and strong bases are also used extensively in the general
types of plating operations intended to be included in the listing
description. As stated earlier, the specific constituents of concern
cited as the basis for listing such wastewater treatment sludges as
hazardous wastes were cadmium, hexavalent chromium, nickel, and cyanide
(complexed) (see 40 CFR part 261, appendix VII).
While the actual composition of the electroplating-generated
wastewater treatment sludges may vary due to the specific sequence of
processing operations (commonly, more than one processing step is
involved in a plating operation), in general, the sludges would be
expected to contain significant concentrations of toxic metals, and
possibly complexed cyanides in high concentrations if the cyanides are
not properly isolated in the wastewater treatment process. Thus, the
approach to this hazardous waste listing was one where the constituents
typically used in the ``up-stream'' production process were, in part,
the basis of the hazardous waste listing applicable to the residuals
from wastewater treatment (typically alkaline precipitation of the
heavy metals).
The Agency noted in the May 19, 1980 rulemaking that several
plating operations were found to not contain significant concentrations
of toxic metals or cyanides, such that the sludges resulting from the
treatment of the wastewaters resulting from such operations would not
be expected to pose a risk to human health and the environment. These
operations were accordingly identified and specifically excluded from
the F006 listing description: (1) sulfuric acid anodizing of aluminum,
(2) tin plating on carbon steel, (3) zinc plating (segregated basis) on
carbon steel, (4) aluminum or zinc-aluminum plating on carbon steel,
(5) cleaning/stripping associated with tin, zinc and aluminum plating
on carbon steel, and (6) chemical etching and milling of aluminum. (see
40 CFR 261.31).
Accordingly, the chemical make-up of the materials used in the
plating operation was a major consideration in whether the wastewater
treatment sludge would be designated a hazardous waste. Other factors
that may impact the concentration levels of hazardous constituents in
the wastewater treatment sludge are the type and shape of the article
being plated, how much of the plating solution is carried over into the
rinsewater, and the actual plating process being used.
3. Site-Specific Considerations at the IBM Vermont Facility
Since the IBM facility has many complicated manufacturing
processes, a review of the basic steps in semiconductor manufacturing
relevant to the metallization process which is the subject of this XL
project may be useful. In general, the surface of a silicon wafer is
cleaned and passivated (i.e., coated to provide an insulating layer)
with a very thin silicon oxide layer. An organic photoresist is applied
to the wafer and a circuit pattern is exposed onto the resist by
shining light onto the wafer through a mask. The exposed photoresist is
washed away, while the remainder is hardened to protect the insulating
layer. After this is completed, the wafer is treated with inorganic
liquids and gases to create the doped circuits which provide the
semiconductor function. The hardened resist is then removed with
organic solvents. At certain points in the process, metallization
techniques are used to electronically connect the stacked layers of the
semiconductor device. (The copper metallization process which is the
basis for this XL project serves this purpose.) Wafer cleaning and
rinsing steps, using mixtures of inorganic acids, oxidizers, and
deionized water, occur after many of the process steps. This process
cycle is repeated until a fully functional memory or logic device has
been produced. After the circuits are built on the wafer, minute
amounts of metal are deposited onto the wafer to produce the
connections which marry the semiconductor to a module or circuit board
for use in a computer. Finally, the wafer is sliced into individual
chips for testing and placement onto substrates or modules for use in
computer systems.
The new copper metallization process IBM has introduced, which is
the subject of this XL project, serves to provide the interconnection
of the device circuits, electronically connecting the stacked layers of
the semiconductor device. In designing the process, IBM worked with the
manufacturers of the plating solutions and the manufacturer of the
plating tool (which holds the wafer) to minimize
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waste and increase efficiency. The metallization process uses this
specialized tool to bring only one side of the wafer into contact with
the copper plating solution and applies an electrical current to plate
the copper onto the wafer surface. Once the metallization process is
complete, the wafer is rinsed with sulfuric acid over the plating bath
to keep as much plating solution as possible in the bath (thus
minimizing the amount of plating solution that is carried over into the
rinsewaters). After the sulfuric acid rinse, the wafer is then rinsed
with deionized water, and deionized water and sulfuric acid, in a pre-
defined sequence, with the resulting rinsewaters being sent through the
facility's wastewater treatment system.
For each wafer produced, approximately 3.5 grams of plating
solution (containing approximately 0.065 grams of copper) is carried
over to the rinsewaters. The volume of water used in the rinsing ranges
from 0.5 to 0.7 gallons per wafer. Present projections show that copper
mass and rinsewater volume will increase from approximately 110 grams/
day and 1000-2000 gallons/day, respectively in the second quarter of
1999 to 180 grams/day and 2000-3000 gallons/day when the process is
fully deployed in 2002.\1\
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\1\ Prior to the copper electroplating operation, a thin layer
of copper is applied to each wafer by vapor deposition. This very
thin layer serves as a ``seed'' site for the deposition of the
electroplated copper. A scheduled change (not related to this XL
project) in the process for depositing the seed layer will result in
additional copper being inadvertently deposited to the outermost
edge of the wafer as a result of a change in the way the wafer is
held in the tool.
Due to this change in the seed layer process, it will be
necessary for future copper plating tools to remove the copper from
the outer three millimeters of the wafer edge following the plating
step to prepare the wafer for future processing. the copper on the
edge is removed using an acid spray, in a process step termed ``edge
bead removal.'' This will add 0.77 grams/day of copper to the
wastewater stream, representing 5-10% of the load generated by the
plating wastewaters and 0.5-1% of the load generated by the total
copper process.
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Also, the plating unit includes a 40-gallon reservoir for the
plating solution that constantly filters and regenerates the solution.
The goal in designing and operating this reservoir is to achieve an
infinite bath life for the solution. However, it is currently necessary
to replace a portion of the used plating solution in the reservoir with
new solution. Currently, IBM drums the spent plating solution from the
reservoir and sends the material for appropriate off-site management.
IBM does not currently, nor plan to in the future, send the spent
plating solution from the reservoir through the wastewater treatment
system. Thus, the only plating solution that is or will be sent through
the facility's wastewater treatment system is the relatively small
amount that is carried over to the rinsewaters.
According to tests conducted by IBM, the plating solution currently
being used by the facility does not contain any of the hazardous metal
constituents and cyanides which were the focus of the original
hazardous waste listing for wastewater treatment sludges from
electroplating operations (and thus, these constituents would not be
expected to be in the wastewater treatment sludge unless they are
introduced from some other production process).
IBM reported other significant environmental benefits of converting
to the copper metallization process that should be considered. The
copper metallization process replaced an aluminum chemical vapor
deposition process that required the vaporization of aluminum for
deposit on the wafer. The use of the vapor deposition process entailed
cleaning steps that used perfluorinated compounds (PFCs), which are
global warming gases. By replacing a majority of the aluminum
connections with copper, a significant reduction in global warming
gases will be realized simply by minimizing the number of cleaning
steps that use PFCs. It should also be noted that while such vapor
deposition processes (and subsequent cleaning steps) are still required
in other aspects of the semiconductor manufacturing process, IBM has
developed an alternative cleaning method that uses dilute nitrogen
trifluoride (NF3) instead of PFCs, wherever appropriate.
NF3 has significantly less impact on global warming than
PFCs.\2\ The Agency recognizes this significant environmental benefit
although it is not closely associated with the regulatory flexibility
being sought by IBM.
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\2\ There are a few cleaning processes at the facility where
dilute NF3 is an ineffective substitute for the PFC.
However, for those operations, IBM has substituted a much more
dilute PFC than was originally used, still achieving reductions in
the global warming gas emissions.
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IBM also reported that the new copper metallization process is much
more energy efficient (30 to 40% less energy) than the aluminum
chemical vapor deposition process it replaces. Similarly, the
semiconductor chip produced by the copper metallization process is
approximately 25% more energy-efficient than the chip it replaces. IBM
expects this type of metallization process (or processes very similar)
to become more common in the semiconductor manufacturing industry.
The aluminum chemical vapor deposition process which the copper
metallization process replaces was dry and generated no wastewater or
sludge that was subject to RCRA. From the time the copper metallization
process was first introduced in 1996 until April of 1998, the copper
metallization rinsewaters were collected and drummed for off-site
disposal, keeping these wastewaters separate from the on-site
wastewater treatment system. However, beginning in May 1998, the volume
of rinsewater generated (approximately 250 gallons/day) became large
enough to make it necessary to introduce the plating rinsewaters into
the wastewater treatment system by commingling them with other
wastewater streams generated on-site.
Even though the contribution of wastewaters from the copper
metallization process to the total volume of wastewater being treated
to generate the sludge is minimal (the volume of rinsewaters from the
plating operation expected to be generated when the plating process is
at full production is 1600 gallons/day, compared with an estimated
5,000,000 gallons/day volume of other on-site wastewaters), the sludge
generated by the treatment of the commingled wastewaters is regulated
as F006 because it meets the narrative listing description (i.e.,
wastewater treatment sludges from an electroplating operation).
Consequently, IBM's reported annual hazardous waste generation
increased from 2.14 million pounds to 5.78 million pounds (1999 totals)
and their waste management costs increased by $3,500 per year.
Regarding IBM's waste management costs, the State of Vermont has
deferred the hazardous waste tax that would normally apply to the
generation of an F006 waste (approximately $225,000/year).\3\
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\3\ VTDEC accepted IBM's position that the F006 listing was
inappropriately bringing the copper metallization waste stream into
the hazardous waste system since the process did not contain the
constituents for which F006 was listed. VTDEC has the discretion to
waive the hazardous waste tax ``for cause shown.'' 32 VSA 10102(2).
VTDEC took the position that the constituents for which F006 was
listed took primacy over the narrative listing description that was
intended to further describe wastes within the boundaries of the
basis for listing, i.e. the constituents of concern. The
constituents described the potential for harm to human health and
the environment while the narrative listing description described
the processes, known at the time, that were likely to contain the
constituents.
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While the increased waste management costs (as well as the
associated recordkeeping and paperwork burdens) are relatively
insignificant to the facility, they
[[Page 54960]]
nevertheless represent increased costs for no net environmental
benefit.
C. What Solutions Are Being Tested by the IBM Vermont XL Project?
IBM's position is that they have adopted a more energy-and
resource-efficient metallization process that employs a plating
solution that is significantly different from the plating solutions
used when the Agency promulgated the F006 listing, and therefore should
not be subject to the F006 listing. This process has been specifically
designed to minimize the use of the plating solution while maximizing
the use of the copper metal in the solution, and minimizing the amount
of solution that is carried over into the rinsewater. Because this
metallization process does not contribute hazardous constituents to the
wastewater treatment sludge, IBM sought to have its copper
metallization process exempted from the F006 hazardous waste listing.
Therefore, rather than pursue a delisting of the wastewater treatment
sludge under 40 CFR 260.22, IBM has opted to work with the Agency,
VTDEC, and interested stakeholders to develop and implement a pilot
project under Project XL that will evaluate whether the copper
metallization process should be included in the plating operations that
result in F006 listed hazardous wastes. The Agency agrees with IBM that
this XL project has a somewhat different aspect to it (i.e., the focus
on the innovative production process that generates the wastewaters
that, in turn, are treated to generate the listed sludge), such that
the delisting approach is not the most suitable. A delisting approach
would look strictly at the waste being delisted (as well as how it is
managed), which in this situation is the result of treating large
volumes of wastewaters from a variety of production processes
(including wastewaters contributed by the innovative copper
metallization process) and would not adequately reflect the specific
environmental impacts associated with the innovative production
process. It is the innovative production process that causes the
wastewater treatment sludge to be designated a hazardous waste.
D. What Regulatory Changes Are Being Promulgated to Implement this
Project?
To implement this XL project, the Agency is promulgating in today's
notice a site-specific exemption in 40 CFR 261.4(b) (i.e., ``Solid
wastes which are not hazardous wastes'') for the copper metallization
process at the IBM Vermont facility from the F006 hazardous waste
listing description. The Agency considered a modification to the F006
listing description in the table in 40 CFR 261.31(a), adding the copper
metallization process at the IBM Vermont facility to the list of
plating operations that are not intended to be subject to the listing.
However, because the exemption will have a number of conditions that
the IBM facility must follow to ensure that this XL project is
protective of human health and the environment throughout the term of
the project and to provide the information and data the Agency will use
to consider whether the regulatory exemption should be incorporated
into the national program, the Agency prefered placing the exemption
language in 40 CFR 261.4(b). Regardless of where EPA chose to place the
exemption language in the regulations (Sec. 261.31(a) or
Sec. 261.4(b)), the legal effect of the exemption is the same. EPA
expects that should the exemption of the copper metallization process
from the F006 listing be incorporated into the national program, EPA
would then modify the listing description in 40 CFR 261.31(a).
E. Why Is EPA Supporting This Approach to Removing a Waste From a
Hazardous Waste Listing?
The Agency agrees with IBM that this XL project has merit and has
the potential to yield significant environmental benefits should this
exemption be adopted on a national basis. Project XL offers the
opportunity for the Agency to test its belief that this innovative
process should be encouraged as one that is environmentally superior to
existing technologies and to consider the appropriate regulatory status
of the wastes from this technology before it is adopted by similar
manufacturing facilities.
Further, this XL project offered EPA the opportunity to test a
different approach to re-evaluating whether a specific wastestream is
appropriately subject to regulatory controls as a listed waste. The
existing mechanism for removing a waste from a listing on a site-
specific basis is through a ``delisting'' petition under 40 CFR 260.22.
However, the delisting approach is not the most suitable for the
situation at the IBM Vermont facility because the scope of the listing
itself is at issue. If IBM submitted a delisting petition, EPA would
evaluate the hazardous nature of the entire wastewater treatment sludge
(which is the wastestream that actually carries the F006 listing)
rather than only that portion which is contributed by the copper
metallization process. EPA generally prefers a delisting approach in
most circumstances (it is, generally, a better approach for determining
the hazardous nature of the actual waste material and whether the waste
should be removed from the hazardous waste management program). In this
instance, however, because the Agency wants to test whether IBM's
copper metallization process should be included within the scope of the
F006 listing, the Agency believed an evaluation of the ``production
side'' of the sequence of operations that resulted in the wastewater
treatment sludge is more useful. Specifically, because the wastewater
treatment sludge is considered hazardous due to an ``upstream''
production unit meeting the narrative description of an electroplating
operation, the Agency believed it was more appropriate to evaluate the
upstream production unit to determine whether the hazardous waste
listing on the ``downstream'' wastewater treatment sludge is warranted.
Therefore, the Agency focused on the key parameters on the production
side (in this case, the innovative design and operation of the copper
metallization process) to make a determination of the regulatory status
of the materials generated on the waste management side (in this case,
the wastewater treatment sludge). This XL project therefore represents
an opportunity for EPA to explore a different approach to determining
whether a waste (in this case, one resulting from an innovative
process) should continue to be subject to a hazardous waste listing. In
other words, this approach may be considered another ``tool'' for the
Agency to use in ``fine tuning'' the hazardous waste listings so that
the narrative description of a listed waste appropriately delineates
between those wastes that pose a risk to human health and the
environment from those wastes (which arguably are generated by very
similar processes) that do not pose such a risk. If, in fact, the
absence of hazardous constituents of concern in the plating solution is
determinative of whether the wastewater treatment sludge is hazardous
(or whether any ``hazard'' in the sludge stems from the plating
operation), this may become the key determining factor in similar
requests for regulatory exemptions. Alternatively, if the Agency
determines that the amount of plating solution that is carried over
into the rinsewater (with focus on the shape of the parts being plated
as well as the actual plating process) is the determining factor, this
variable may be accounted for in future
[[Page 54961]]
rulemakings that address the F006 hazardous waste listing.
Because this is an innovative and highly efficient plating
technology that also does not use the hazardous constituents common in
most electroplating operations, EPA agrees with IBM's expectation that
more semiconductor manufacturing facilities will seek to adopt this
process (or ones very similar). The Agency agrees that if there is no
adverse effect on the wastewater treatment sludge from the use of this
metallization process, then regulating the sludge as a hazardous waste
based solely on the fact that the metallization process continues to
meet the narrative listing description of an electroplating operation
may be imposing regulatory controls unnecessarily.
Further, the Agency believes that this innovative metallization
process is environmentally superior to the old process it replaces,
i.e., the aluminum chemical vapor deposition process. Not only is the
metallization process 30 to 40% more energy efficient than the old
process and the chips produced approximately 25% more energy efficient,
there are also environmental benefits realized by discontinuing the use
of the old process. While the metallization process generates a
wastewater stream (and subsequent sludge from the treatment of that
wastewater) that was not inherent to the aluminum chemical vapor
deposition process, the old vapor deposition process entailed a
cleaning step that used perfluorinated compounds (PFCs), which are
global warming gases. The aluminum chemical vapor deposition process
basically uses vaporized metal (in this case, aluminum) that is then
deposited on the wafer, all of which occurs in ``chambers.'' The
vaporized metal also gets deposited on the insides of these chambers,
which must periodically be cleaned of this metal coating. Thus, by
replacing the old process with the metallization process,10,000 metric
tons of carbon equivalent (MTCE) of global warming gases will not be
emitted to the air. However, it should be noted that, due to the nature
of the materials and components involved in the semiconductor
manufacturing process, the vapor deposition process cannot be
completely eliminated from the production line, nor can the subsequent
cleaning steps. (However, the number of cleaning steps requiring the
use of PFCs has been significantly reduced and will continue to be
reduced by the conversion to the innovative copper metallization
process. The vapor deposition chambers, therefore, are a major focus in
measuring the reduction in global warming gases.) Nevertheless, the
Agency believes that the use of the innovative copper metallization
process should be encouraged where possible. (Also, as stated earlier,
IBM has developed an alternative cleaning process that uses dilute
nitrogen trifluoride (NF3) as a replacement for the PFCs.
The dilute NF3 is reported to have a much lower impact on
global warming than the PFCs that would otherwise be used.)
From a public policy standpoint, it would not serve to encourage
manufacturers to employ less-hazardous or more environmentally friendly
and innovative production processes and ingredients in manufacturing
operations if the Agency is unwilling to revisit existing hazardous
waste listings to determine if the wastes resulting from such
innovative process changes still warrant a hazardous waste listing.
This XL project offers the Agency the opportunity to consider
proactively the appropriate regulatory status of the wastewater
treatment sludges generated from an innovative production process
before it is widely used and commonplace and may serve as a precedent
for other listed wastestreams.
Additionally, the Agency believes that to the extent the
implementation of the hazardous waste regulations, including the actual
requirements as well as the costs and administrative burdens, are
directly related to the hazards being posed by the waste being
regulated, this will improve the overall implementation of the program
and compliance with the regulations. Just as it is important to ensure
that those wastes that can pose significant risk to human health and
the environment are properly controlled and managed, it is also
important to not needlessly subject wastes that do not pose such risks
to the same type of regulatory oversight.
F. How Have Various Stakeholders Been Involved in This Project?
IBM has established an appropriate stakeholder group to develop the
Final Project Agreement for this XL pilot project and to evaluate IBM's
plan and progress in implementing the project. IBM has solicited input
on this project from a wide range of stakeholders including local and
national environmental groups, neighborhood associations, and industry
trade associations. Stakeholders have been notified of this project by
direct mail, telephone, and notification in the local press.
In addition, IBM has conducted a series of meetings with select
stakeholders who had agreed to serve as commenters for this project.
They had been briefed on the proposal, and were supportive of the
project as described. The State of Vermont also supports the project
and is a Project Signatory to the Agreement. Stakeholder meetings were
held at the IBM facility on February 17 and March 24, 2000.
IBM has kept an open dialogue with interested stakeholders since
the project's inception and will continue to involve any interested
stakeholders in the project's development. In addition, EPA and IBM
will make all project-related documents and events publically
accessible through announcements, EPA's web site and public dockets.
G. How Will This Project Result in Cost Savings and Paperwork
Reduction?
As stated earlier, introducing the rinsewaters from the
metallization process into the wastewater treatment system has caused
the entire volume of wastewater treatment sludge to be defined as a
hazardous waste, increasing the facility's waste management costs by
approximately $3,500/year. Removing the hazardous waste designation
will eliminate this expenditure. Also, as discussed earlier, the State
of Vermont has waived the waste tax that would otherwise apply to IBM's
generation of F006 waste (approximately $225,000/year). (Note that the
State of Vermont is not authorized to do hazardous waste delistings
which could change the regulatory status of the sludge from a listed
hazardous waste to a nonhazardous waste; however, the State has more
flexibility in assessing hazardous waste generation taxes. Had the
State not granted this tax waiver, the cost savings associated with
this specific XL project would be considered significant.) Finally, IBM
expects to see cost savings of $100,000 to $200,000 per year when the
conversion to the copper metallization process has been fully
implemented. The sources of these cost savings include reduced material
costs (e.g., reduction in the use and resultant purchase of PFCs) and
reduced energy expenditures.
Because the IBM Vermont facility will continue to be regulated as a
Large Quantity Generator due to the volume of hazardous wastes
generated at other parts of the facility, and because there is no State
hazardous waste tax being applied, the actual reduction in paperwork
and cost savings related to waste management are not significant. The
wastewater treatment sludge will no longer be considered a hazardous
waste (unless the sludge otherwise exhibits a characteristic of
hazardous waste) and so will not have to be counted in the facility's
annual report.
[[Page 54962]]
While this reduction in reported hazardous waste generated will
certainly improve the facility's public image, it will save only a
little time and money in preparing the annual report for the hazardous
wastes generated by other facility operations.
There are also cost savings realized by not having to use a
hazardous waste transporter or hazardous waste manifest to ship the
sludge off-site for further management. Also, because the sludges are
currently shipped to Canada for treatment and disposal, IBM must
currently file an annual ``Request for Export of Hazardous Waste'' with
Canada, requiring 2 hours of engineering time, as well as several hours
of phone calls and follow-up to ensure the application is expeditiously
processed. Such an application and expenditure of resources is not
needed if the sludges being shipped to Canada are not hazardous wastes.
EPA, as well as VTDEC, will also benefit from some paperwork
reduction and cost savings by not having to process and track the
manifests and export documents that will otherwise have to be processed
without this XL project.
In considering the cost savings and paperwork reduction associated
with this XL project, it is important to consider the potential impacts
if this pilot project proves successful and the regulatory flexibility
(i.e., the exemption of the copper metallization unit from the listing
description of F006 wastes) is promulgated on a national basis. The
conversion to the copper metallization process represents significant
operational cost savings for IBM. As a result, on a national level the
overall cost (and paperwork) reduction that would be realized may be
quite significant, assuming this innovative technology (or a similar
one) is adopted by more semiconductor manufacturers. While there is
little question that a national exemption patterned after this site-
specific exemption would result in cost and paperwork reductions,
because of the variability in how States implement their waste taxes,
or other mechanisms for raising revenues based on the hazardous wastes
generated in the State, it is difficult to estimate a projected savings
on such taxes on a national level.
H. What Are the Terms of the IBM Vermont XL Project and How Will They
Be Enforced?
As stated earlier, to allow for the implementation of the XL pilot
project, EPA is today modifying the current regulatory framework in 40
CFR 261.4(b) to provide a site-specific exemption for IBM's copper
metallization process from the narrative description for F006 listed
hazardous waste (see 40 CFR 261.31(a)), thus removing the F006 listing
designation from the sludges generated by the treatment of the
wastewaters generated by the copper metallization process. VTDEC
likewise intends to modify its State hazardous waste program to allow
for the same removal of the F006 listing designation from the
wastewater treatment sludge. It should be noted that the Agency intends
that the exemption will apply to all the wastewater treatment sludge
resulting from the treatment of the copper metallization rinsewaters at
the site, including those sludges that are in the process of being
generated, sludges that result from rinsewaters already in the
wastewater treatment system, and sludges that have been removed from
the wastewater treatment system and are being stored pending off-site
transportation.
Through the development of the Final Project Agreement (FPA), IBM
has agreed to comply with several key criteria as conditions for this
exemption, which are included in the regulatory text of the exemption.
These conditions are focused on proving the environmental benefits of
removing the F006 listing from the wastewater treatment sludges (or the
inappropriateness of designating these wastewater treatment sludges
F006 hazardous waste) and to gather the data and other information that
would allow the Agency to make a determination regarding the possible
future adoption of this site-specific exemption as a nationwide generic
exemption. IBM has also agreed to commit to a good faith effort to
achieve several goals related to superior environmental performance.
(Note that while achieving these goals is not being proposed as a
condition of the exemption due to their uncertain nature, an evaluation
of the success of this XL pilot project will certainly be influenced by
IBM's success in achieving their stated goals, as well as the effort
expended to achieve the goals.)
As conditions of the site-specific exemption, IBM must report on
the following:
(1) IBM must analyze the plating bath and rinsewaters generated
from the copper metallization process. The analysis must be conducted
on samples that are representative of rinsewaters and plating baths
associated with all the tools that are converted to the copper
metallization process and will measure for the presence of volatiles,
semi-volatiles, and metals (using the methods specified in 40 CFR part
264, appendix IX) in both the plating bath and rinsewaters. IBM must
collect, analyze and submit this data twice a year (by January 15 and
July 15 of each year).
(2) In addition, IBM must report on the status of the greenhouse
gas emission reduction project at the facility. This will include
greenhouse gas reductions achieved from the conversion to the copper
metallization process and IBM's additional voluntary initiative to
reduce greenhouse gas emissions from its other chamber cleaning
processes. IBM will track usage of C2F6, the
primary PFC used in the chamber cleaning operation, and estimate the
reduction in PFC emissions based on the reduction in chemical usage.
Likewise, IBM will provide similar data for the chemicals that replace
the C2F6, specifically, dilute nitrogen
trifluoride (NF3), and dilute C2F6,
including the quantity of NF3 used in the cleaning process,
and the carbon equivalent potential of the NF3 to calculate
the global warming impact of the converted processes. IBM will report
on the number of chambers converted during the reporting period and
remaining to be converted to achieve the site global warming gas
emission reduction goal along with an update of the calculated
greenhouse gas emission reductions for the facility, both in terms of
total mass emitted and mass emitted normalized to production.\4\
Submissions of these data are likewise due twice a year, by January 15
and July 15 in conjunction with the plating bath and rinsewater
analyses.
---------------------------------------------------------------------------
\4\ The Agency notes that in the proposed rule language, the
condition for reporting on estimated greenhouse gas emissions and
reductions from a 1995 base year would cease after 2004 or once IBM
had achieved their facility-wide goal of 50% reduction, whichever
comes first. The draft FPA identified the goal as a 40% reduction.
No comments were received noting this discrepancy. The correct goal
is 40% and the regulatory language being promulgated today has been
amended to reflect the correct 40% goal.
---------------------------------------------------------------------------
In addition, IBM commits to monitor copper concentrations in its
wastewater effluent for conformance with their current NPDES (National
Pollutant Discharge Elimination System) permit. IBM's stated goal is to
maintain copper concentrations in the effluent discharge of less than
40% of the discharge limit.
I. How Long Will This Project Last and When Will It Be Completed?
This project will be in effect for five years from the date that
the final rulemaking becomes effective (the latter of the EPA final
rule or the VTDEC final rule) unless it is terminated earlier or
extended by all Project Signatories (if the FPA is extended, the
comments and input of stakeholders will be sought and a Federal
Register document will be
[[Page 54963]]
published). Any Project Signatory may terminate its participation in
this project at any time in accordance with the procedures set forth in
the FPA. The project will be completed at the conclusion of the five-
year anniversary of the final rulemaking or at a time earlier or later
determined by the amount of information gathered to date and the
interest of the parties involved.
Upon completion of the project term, EPA and VTDEC commit to
evaluating the project. If the project results indicate that it was a
success, EPA will consider transferring the regulatory flexibility (or
some similar flexibility) to the national RCRA program (through
rulemaking procedures). Should the project results indicate that the
project was not successful, EPA will promulgate a rule to remove the
site-specific exemption. Absent any regulatory action on the part of
the Agency, the implementing rule (i.e., the site-specific exemption)
will remain in effect as long as IBM continues to meet its conditions
(i.e., EPA and VTDEC intend to allow IBM to continue operating under
the site-specific rule). However, as for any conditional exemption, if
at any time, should IBM fail to meet the conditions of the site-
specific exemption, the exemption is not applicable. Also, the Agency
may promulgate a rule to withdraw the exemption at any time, subject to
the procedures agreed to in the Final Project Agreement (FPA),
including, but not limited to, a substantial failure on the part of any
Project Signatory to comply with the terms and conditions of the FPA or
if the exemption becomes inconsistent with future statutory or
regulatory requirements.
IV. Additional Information
A. How Does This Rule Comply With Executive Order 12866?
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs of the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Because the annualized cost of this final rule will be
significantly less than $100 million and will not meet any of the other
criteria specified in the Executive Order, it has been determined that
this rule is not a ``significant regulatory action'' under the terms of
Executive Order 12866, and is therefore not subject to OMB review.
B. Is a Regulatory Flexibility Analysis Required?
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. This rule will not
have a significant impact on a substantial number of small entities
because it only affects the IBM facility in Essex Junction, VT and it
is not a small entity. Therefore, EPA certifies that this action will
not have a significant economic impact on a substantial number of small
entities.
C. Is EPA Required To Submit a Rule Report Under the Congressional
Review Act?
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 the Comptroller General of the United
States. Section 804, however, exempts from Section 801 the following
types of rules: rules of particular applicability, rules relating to
agency management and personnel, and 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.
D. Is an Information Collection Request Required for This Project Under
the Paperwork Reduction Act?
This action applies only to one facility, and therefore requires no
information collection activities subject to the Paperwork Reduction
Act, and therefore no information collection request (ICR) will be
submitted to OMB for review in compliance with the Paperwork Reduction
Act, 44 U.S.C. 3501, et seq.
E. Does This Project Trigger the Requirements of the Unfunded Mandates
Reform Act?
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
As noted above, this rule is applicable only to one facility in
Vermont. EPA has determined that this rule contains no regulatory
requirements that might
[[Page 54964]]
significantly or uniquely affect small governments. EPA has also
determined that this rule does not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
tribal governments, in the aggregate, or the private sector in any one
year. Thus, today's rule is not subject to the requirements of sections
202 and 205 of the UMRA.
F. RCRA & Hazardous and Solid Waste Amendments of 1984
1. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program for hazardous waste within the
State. (See 40 CFR part 271 for the standards and requirements for
authorization.) States with final authorization administer their own
hazardous waste programs in lieu of the Federal program. Following
authorization, EPA retains enforcement authority under sections 3008,
7003 and 3013 of RCRA.
After authorization, Federal rules written under RCRA (non-HSWA),
no longer apply in the authorized state except for those issued
pursuant to the Hazardous and Solid Waste Act Amendments of 1984
(HSWA). New Federal requirements imposed by those rules do not take
effect in an authorized State until the State adopts the requirements
as State law.
In contrast, under section 3006(g) of RCRA, new requirements and
prohibitions imposed by HSWA take effect in authorized States at the
same time they take effect in nonauthorized States. EPA is directed to
carry out HSWA requirements and prohibitions in authorized States until
the State is granted authorization to do so.
2. Effect on Vermont Authorization
Today's rule, will be promulgated pursuant to non-HSWA authority,
rather than HSWA. Vermont has received authority to administer most of
the RCRA program; thus, authorized provisions of the State's hazardous
waste program are administered in lieu of the Federal program. Vermont
has received authority to administer the regulations that specifically
identify hazardous wastes by listing them. As a result, the rule to
modify the listing for F006 hazardous waste would not be effective in
Vermont until the State adopts the modification. It is EPA's
understanding that subsequent to the promulgation of this rule, Vermont
intends to propose rules or other legal mechanisms to provide the
exemption for the copper metallization process from the F006 listing
description. EPA may not enforce these requirements until it approves
the State requirements as a revision to the authorized State program.
G. How Does This Rule Comply with Executive Order 13045: Protection of
Children From Environmental Health Risks and Safety Risks?
The Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) applies to any rule that: (1) Is determined to be ``economically
significant,'' as defined under Executive Order 12866; and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule, as defined by Executive Order 12866,
and because it does not involve decisions based on environmental health
or safety risks.
H. Does This Rule Comply With Executive Order 13132: Federalism?
Executive Order 13132, entitled: ``Federalism'' (64 FR 43255,
August 10, 1999), requires EPA to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have federalism
implications.'' ``Policies that have federalism implications'' is
defined in the Executive order to include regulations that have
``substantial 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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the regulation. EPA may also not issue a regulation that has
federalism implications and that preempts State law, unless the Agency
consults with the State and local officials early in the process of
developing the regulation.
This 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 level of government, as
specified in Executive Order 13132. The exemption outlined in today's
rule will not take effect unless Vermont chooses to adopt the rule or
other legal implementing mechanism. Thus, the requirements of section 6
of the Executive Order do not apply to this rule. Although section 6 of
Executive Order 13132 does not apply to this rule, EPA did fully
coordinate and consult with the state and local officials in developing
this rule.
I. How Does This Rule Comply With Executive Order 13084: Consultation
and Coordination with Indian Tribal Governments ?
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments to provide meaningful and timely input in the
development of regulatory policies on matters that significantly or
uniquely affect their communities. Today's rule does not significantly
or uniquely affect the communities of Indian tribal governments. There
are no communities of Indian tribal governments located in the vicinity
of the facility. Accordingly, the requirements of section 3(b) of
Executive Order 13084 do not apply to this rule.
[[Page 54965]]
J. Does This Rule Comply With the National Technology Transfer and
Advancement Act ?
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standard. This rulemaking does not
involve technical standards. Therefore, EPA did not consider the use of
any voluntary consensus standards.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous materials, Waste treatment and
disposal, Recycling.
Dated: September 1, 2000.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 261 of Chapter I of
Title 40 of the Code of Federal Regulations is to be amended as
follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
2. Section 261.4 is amended by adding paragraph (b)(16) to read as
follows:
Sec. 261.4 Exclusions.
* * * * *
(b) * * *
(16) Sludges resulting from the treatment of wastewaters (not
including spent plating solutions) generated by the copper
metallization process at the International Business Machines
Corporation (IBM) semiconductor manufacturing facility in Essex
Junction, VT, are exempt from the F006 listing, provided that:
(i) IBM provides the Agency with semi-annual reports (by January 15
and July 15 of each year) detailing constituent analyses measuring the
concentrations of volatiles, semi-volatiles, and metals using methods
presented in part 264, appendix IX of this chapter of both the plating
solution utilized by, and the rinsewaters generated by, the copper
metallization process;
(ii) IBM provides the agency with semi-annual reports (by January
15 and July 15 of each year), through the year 2004, or when IBM has
achieved its facility-wide goal of a 40% reduction in greenhouse gas
emissions from a 1995 base year (when normalized to production),
whichever is first, that contain the following:
(A) Estimated greenhouse gas emissions, and estimated greenhouse
gas emission reductions. Greenhouse gas emissions will be reported in
terms of total mass emitted and mass emitted normalized to production;
and
(B) The number of chemical vapor deposition chambers used in the
semiconductor manufacturing production line that have been converted to
either low flow C2F6 or NF3 during the
reporting period and the number of such chambers remaining to be
converted to achieve the facility goal for global warming gas emission
reductions.
(iii) No significant changes are made to the copper metallization
process such that any of the constituents listed in 40 CFR part 261,
appendix VII as the basis for the F006 listing are introduced into the
process.
* * * * *
[FR Doc. 00-23239 Filed 9-11-00; 8:45 am]
BILLING CODE 6560-50-U