[Federal Register Volume 65, Number 117 (Friday, June 16, 2000)]
[Proposed Rules]
[Pages 37739-37749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15154]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-6716-4]
Project XL Site-Specific Rulemaking for the IBM Semiconductor
Manufacturing Facility in Essex Junction, VT
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; request for comment.
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SUMMARY: The Environmental Protection Agency (EPA) is today proposing
this rule to implement a pilot project under the Project XL program
that would provide site-specific regulatory flexibility under the
Resource Conservation and Recovery Act (RCRA), as amended, for the
International Business Machines Corporation (IBM) 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, today's proposed rule, when finalized,
will provide an exemption of the copper metallization process from the
narrative listing description of electroplating operations that result
in an F006 wastewater treatment sludge.
DATES: Public Comments: Comments on the proposed rule must be received
on or before July 17, 2000. All comments should be submitted in writing
to the address listed below.
Public Hearing: Commenters may request a public hearing by June 30,
2000 during the public comment period. Commenters requesting a public
hearing should specify the basis for their request. If EPA determines
that there is sufficient reason to hold a public hearing, it will do so
by July 7, 2000, during the last week of the public comment period.
Requests for a public hearing should be submitted to the address below.
ADDRESSES: Comments: Written comments should be mailed to the RCRA
Information Center Docket Clerk (5305W), U.S. Environmental Protection
Agency, 1200 Pennsylvania Ave. NW, Washington, D.C. 20460. Please send
an original and two copies of all comments, and refer to Docket Number
F-2000-IBMP-FFFFF.
Request to Speak at Hearing: Requests for a hearing should be
mailed to the RCRA Information Center Docket Clerk (5305G), U.S.
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington,
D.C. 20460. Please send an original and two copies of all comments, and
refer to Docket Number F-2000-IBMP-FFFFF. A copy should also be sent to
Mr. John Moskal at the U.S. EPA New England office. Mr. John Moskal may
be contacted at the following address: U.S. Environmental Protection
Agency, New England (SPP), One Congress St., Suite 1100, Boston, MA
02114, (617) 918-1826.
Viewing Project Materials: A docket containing the proposed rule,
draft 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.
FOR FURTHER INFORMATION CONTACT: Mr. John Moskal or Mr. George Frantz,
U.S.
[[Page 37740]]
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: This pilot project assesses the
appropriateness of designating the sludges resulting from the treatment
of the wastewaters generated by the copper metallization process as a
listed hazardous waste (F006), and to characterize those factors that
may determine whether similar metallization processes should also be
exempted from the process description in the F006 listing. No other
hazardous wastes generated and/or managed at the IBM facility are
affected by this proposed rule. Similarly, no wastewater treatment
sludges generated through the treatment of wastewaters resulting from
similar copper metallization processes at other facilities are affected
by this proposed rule.
The duration of this XL pilot project is 5 years. The exemption
from the specified RCRA requirements for the wastewater treatment
sludge resulting from the copper metallization process at this IBM
facility does not include a ``sunset provision'' which would
automatically terminate the exemption at a certain point in the future
(as is typically done in regulatory changes to facilitate XL pilot
projects). Instead, EPA and VTDEC (and IBM) commit to evaluating the
project at the end of its 5-year term. If the project is determined to
be successful, EPA may consider expanding the scope of the exemption to
the national level (by rulemaking). If the project is determined to be
unsuccessful, EPA will promulgate a rule (after notice and comment) to
remove the site-specific exemption and the wastewater treatment sludge
will again become subject to the F006 hazardous waste listing. It is
the intent of EPA and VTDEC that the conditional exemption remain
applicable to the IBM facility until EPA (and VTDEC) takes regulatory
action to change the exemption (to either remove it, expand it, or
perhaps modify it). The five-year term for this XL pilot project begins
upon the effective date of the final rulemaking (the latter of EPA or
VTDEC) promulgated to allow for the XL project to be implemented.
Today's proposed rulemaking will not in any way affect the
provisions or applicability of any other existing or future
regulations.
EPA is soliciting comments on this rulemaking (as well as the draft
FPA). EPA will publish responses to comments in a subsequent final
rule. The XL project will enter the implementation phase when the final
rule is promulgated by EPA and VTDEC, and all signatories to the XL
project sign the Final Project Agreement.
The terms of the overall XL project are contained in a draft Final
Project Agreement (FPA) on which EPA is also requesting comment. The
draft Final Project Agreement (FPA) (also available in today's Federal
Register) is available for public review and comment at the EPA Docket
in Washington DC, in the US EPA New England library, at the IBM Essex
Junction facility, and on the world wide web at http://www.epa.gov/projectxl/. Following a review of the public comments and appropriate
changes, the FPA would be signed by representatives from EPA, the
Vermont Department of Environmental Conservation (VTDEC) and IBM.
Outline of Today's Proposal
The information presented in this preamble is organized as follows:
I. Authority
II. Overview of Project XL
III. Overview of the IBM Vermont XL Pilot Project
A. To Which Facilities Will the Proposed 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 Solution is Proposed by the IBM Vermont XL Project?
D. What Regulatory Changes Will Be Necessary to Implement this
Project?
1. Federal Regulatory Changes
2. State Regulatory Changes
E. Why is EPA Supporting this Approach to Removing 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 to Request a Public Hearing
B. How Does this Rule Comply With Executive Order 12866?
C. Is a Regulatory Flexibility Analysis Required?
D. Is an Information Collection Request Required for this
Project Under the Paperwork Reduction Act?
E. Does this Project Trigger the Requirements of the Unfunded
Mandates Reform Act?
F. RCRA & Hazardous and Solid Waste Amendments
1. Applicability of Rules in Authorized States
2. Effect on Vermont Authorization
G. How Does this Rule Comply with Executive Order 13045:
Protection of Children from Environmental Health Risks and Safety
Risks?
H. Does this Rule Comply with Executive Order 13132: Federalism?
I. How Does this Rule Comply with Executive Order 13084:
Consultation and Coordination with Indian Tribal Governments?
J. Does this Rule Comply with the National Technology Transfer
and Advancement Act?
I. Authority
EPA is publishing this proposed regulation under the authority of
sections 2002, 3001, 3002, 3003, 3006, 3010, and 7004 of the Solid
Waste Disposal Act of 1970, as amended by the Resource Conservation and
Recovery Act, as amended (42 U.S.C. 6912, 6921, 6922, 6923, 6926, 6930,
6937, 6938, and 6974).
II. Overview of Project XL
The draft 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 proposed regulation, along with the FPA
(also available in today's Federal Register), would 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 37741]]
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 draft
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 draft FPA
contains a detailed description of the proposed pilot project. It
addresses the eight Project XL criteria, and the expectation of the
Agency that the XL project will meet those criteria. The draft 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 draft FPA also discusses the
administration of the FPA, including dispute resolution and
termination. The draft 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 Pilot Project
EPA is today requesting comments on the draft Final Project
Agreement (FPA) and proposed rule to implement key provisions of this
Project XL initiative. Today's proposed rule would facilitate
implementation of the draft 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. After comments on the
draft FPA and proposed rule have been considered, EPA, VTDEC, and IBM
expect to sign a final FPA. Today's proposed rule, when finalized,
would not be effective in Vermont until the State has made conforming
changes to its hazardous waste program.
A. To Which Facilities Will the Proposed Rule Apply?
This proposed rule would apply only to the IBM Essex Junction, VT
facility. Further, the regulatory modification being proposed 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 proposed rule (or the final rule, when finalized).
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
[[Page 37742]]
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 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 proposal), 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
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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 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 reports other significant environmental benefits of converting
to the copper metallization process that should be considered. The
copper metallization process replaces 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 reports 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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[[Page 37744]]
While the increased waste management costs (as well as the
associated recordkeeping and paperwork burdens) are relatively
insignificant to the facility, they nevertheless represent increased
costs for no net environmental benefit.
C. What Solution Is Proposed 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 is seeking 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 Will Be Necessary To Implement This Project?
To implement this XL project, the Agency is proposing in today's
notice to provide a site-specific 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 prefers
placing the exemption language in 40 CFR 261.4(b). Regardless of where
EPA chooses to place the exemption language in the regulations
(261.31(a) or 261.4(b)), the legal effect of the exemption will be 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 offers 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 believes an evaluation of the ``production
side'' of the sequence of operations that results in the wastewater
treatment sludge would be 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 believes it is 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 will focus 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
[[Page 37745]]
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 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 are 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 have agreed to serve as commenters for this project.
They have been briefed on the proposal, and are 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
[[Page 37746]]
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. 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 proposing to modify 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, once finalized, 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 draft Final Project Agreement (FPA),
IBM has agreed to comply with several key criteria as conditions for
this exemption, which will be included in the regulatory text of the
exemption being proposed. 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.
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.
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
[[Page 37747]]
input of stakeholders will be sought and a Federal Register notice will
be published). Any Project Signatory may terminate its participation in
this project at any time in accordance with the procedures set forth in
the FPA. The project will be completed at the conclusion of the five-
year anniversary of the final rulemaking or at a time earlier or later
determined by the amount of information gathered to date and the
interest of the parties involved.
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 To Request a Public Hearing
A public hearing will be held, if requested, to provide an
opportunity for interested persons to make oral presentations regarding
this regulation in accordance with 40 CFR part 25. Persons wishing to
make an oral presentation on the site-specific rule to implement the
IBM Vermont XL project should contact Mr. John Moskal or Mr. George
Frantz of the EPA New England office, at the address given in the
ADDRESSES section of this document. Any member of the public may file a
written statement before the hearing, or after the hearing, to be
received by EPA no later than June 30, 2000. Written statements should
be sent to EPA at the addresses given in the ADDRESSES section of this
document. If a public hearing is held, a verbatim transcript of the
hearing, and written statements provided at the hearing will be
available for inspection and copying during normal business hours at
the EPA addresses for docket inspection given in the ADDRESSES section
of this preamble.
B. How Does This Rule Comply With Executive Order 12866?
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.
Executive Order 12866 also encourages agencies to provide a
meaningful public comment period, and suggests that in most cases the
comment period should be 60 days. However, in consideration of the very
limited scope of today's rulemaking and the considerable public
involvement in the development of the proposed Final Project Agreement,
EPA considers 30 days to be sufficient in providing a meaningful public
comment period for today's action.
C. Is a Regulatory Flexibility Analysis Required?
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. This rule will not
have a significant impact on a substantial number of small entities
because it only affects the IBM facility in 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.
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
[[Page 37748]]
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 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 proposed rule, if finalized, 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, if today's proposed rule to modify the listing for
F006 hazardous waste is finalized, it 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 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 level of government, as
specified in Executive Order 13132. The exemption outlined in today's
proposed 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
[[Page 37749]]
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.
J. Does This Rule Comply With the National Technology Transfer and
Advancement Act?
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary 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
proposed rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
EPA welcomes comments on this aspect of the proposed rulemaking and,
specifically, invites the public to identify potentially-applicable
voluntary consensus standards and to explain why such standards should
be used in this regulation.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous materials, Recycling, Waste
treatment and disposal.
Dated: June 8, 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 proposed to be amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
2. Section 261.4 is amended by adding paragraph (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 50% 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. 00-15154 Filed 6-15-00; 8:45 am]
BILLING CODE 6560-50-P