[Federal Register Volume 66, Number 109 (Wednesday, June 6, 2001)]
[Proposed Rules]
[Pages 30349-30361]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14249]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[FRL-6992-5]
Project XL Site-Specific Rulemaking for the IBM Semiconductor
Manufacturing Facility in Hopewell Junction, New York
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) East Fishkill
semiconductor manufacturing facility in Hopewell Junction, New York.
The principal objective of this IBM East Fishkill XL project is to
determine whether the wastewater treatment sludge resulting, in part,
from the treatment of wastewaters from electroplating operations (and
therefore meeting the listing description for F006 Hazardous Waste) may
be used as an ingredient in the manufacture of cement in an
environmentally sound manner without RCRA regulatory controls.
As a result of this XL project, the Agency expects to receive data
with regard to the effectiveness and safety of using IBM's wastewater
treatment sludge as an ingredient in the manufacture of cement. To
gather the information needed to make a determination that IBM's sludge
need not be regulated as a RCRA hazardous waste in order to protect
human health and the environment when recycled as an ingredient in
cement, today's proposed rule, when finalized, will provide a
conditional exclusion for IBM's wastewater treatment sludge from the
definition of solid waste, thus allowing for the recycling scenario to
be implemented. IBM will be required to submit periodic reports
containing pertinent information regarding this XL project. Such data
could ultimately be useful in supporting any future EPA regulatory
initiatives regarding the recycling of F006 to make cement products.
EPA does not expect, however, that this XL project alone will generate
substantial amounts of data on the wide variety of other F006
wastestreams that could potentially be used to make cement; such
additional data would be required before EPA would be in a position to
develop a national rulemaking for this particular recycling scenario.
DATES: Public Comments: Comments on the proposed rule must be received
on or before July 6, 2001. All comments should be submitted in writing
to the address listed below.
Public Hearing: Commenters may request a public hearing by June 20,
2001 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 June 27, 2001, during the last week of the public comment period.
Requests for a public hearing should be submitted to the address below.
If a public hearing is scheduled, the date, time, and location will be
available through a Federal Register notice or by contacting Mr. Sam
Kerns at the U.S. EPA Region 2 office.
ADDRESSES: Comments: Written comments should be mailed to the RCRA
Information Center Docket Clerk (5305W), U.S. Environmental Protection
[[Page 30350]]
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-2001-IB2P-FFFFF.
Request for a 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-2001-IB2P-FFFFF. A copy should also be sent to Mr. Sam
Kerns at the U.S. EPA Region 2 office. Mr. Kerns may be contacted at
the following address: U.S. Environmental Protection Agency, Region 2,
290 Broadway, New York, NY 10007-1866, (212) 637-4139.
Viewing Project Materials: A docket containing the proposed 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 9:00 am to 4:00
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-2001-IB2P-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 the U.S. EPA Region 2 Library, 290 Broadway, New York, NY
10007-1866, during normal business hours. Persons wishing to view the
duplicate docket at the New York location are encouraged to contact Mr.
Sam Kerns or Ms. Aleksandra Dobkowski-Joy in advance, by telephoning
(212) 637-4139 or (212) 637-3676, respectively.
FOR FURTHER INFORMATION CONTACT: Mr. Sam Kerns or Ms. Aleksandra
Dobkowski-Joy, U.S. Environmental Protection Agency, Region 2, 290
Broadway, New York, NY 10007-1866. Mr. Kerns can be reached at (212)
637-4139 (or [email protected]) and Ms. Dobkowski-Joy can be reached at
(212) 637-3676 (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 excluding from the RCRA regulatory definition of
solid waste the wastewater treatment sludge (designated as F006
Hazardous Waste) generated by one of the two fluoride/heavy metal
wastewater treatment plants (the plant designated as B/690 West Complex
by IBM) on the IBM East Fishkill facility when the sludge is being used
as an ingredient in the manufacture of cement, and to characterize
those factors that may determine whether similar sludges should also be
excluded from RCRA regulatory controls when recycled in the same
manner. This proposed rule is not intended to apply to any other
hazardous wastes generated and/or managed at the IBM facility, although
wastewater treatment sludge (also designated as F006 Hazardous Waste)
generated by the other wastewater treatment plant (the B/386 East
Complex) at the facility may become eligible in the future once a Final
Project Agreement (or addendum to the current Final Project Agreement)
is signed allowing for the additional sludge to be included in this
project. This proposed rule does not apply to any wastewater treatment
sludges generated at other facilities.
The duration of this XL pilot project is five years. The site-
specific conditional exclusion from the definition of solid waste being
proposed in today's notice includes a ``sunset provision'' which will
automatically terminate the exclusion 5 years from the effective date
of the final rulemaking promulgated to allow for the XL project to be
implemented. (A ``sunset provision'' is typically included in
regulatory changes to facilitate XL pilot projects.) Towards the end of
the term of this XL project, EPA, the New York State Department of
Environmental Conservation (NYSDEC), and IBM will evaluate the success
of the pilot project. If the project is determined to be successful,
EPA may consider expanding the scope of the exclusion to the national
level (by rulemaking). Although EPA does not expect that this XL
project by itself can generate all the data that would be necessary on
the wide variety of other F006 wastestreams that could potentially be
used to make cement to proceed with a national rulemaking, the data
generated from this project may be useful in supporting such national-
level rulemaking.
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. 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 NYSDEC has undertaken appropriate action to allow the project
to be implemented. (The Final Project Agreement has already been signed
by EPA, NYSDEC, and IBM.)
The terms of the overall XL project are contained in a Final
Project Agreement (FPA) which was the subject of a Notice of
Availability published in the Federal Register on September 1, 2000 (65
FR 53298) and which was signed by EPA, NYSDEC and IBM on September 29,
2000. The Final Project Agreement (FPA) is available to the public at
the EPA Docket in Washington, DC, in the U.S. EPA Region 2 library, at
the IBM East Fishkill facility, and on the world wide web at http://www.epa.gov/projectxl/.
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 East Fishkill XL Pilot Project
A. To Which Facilities Will the Proposed Rule Apply?
B. What Problems will the IBM East Fishkill XL Project Attempt
to Address?
1. Background on the Definition of Solid Waste
2. Legitimate Recycling Determination
3. Site-Specific Considerations at the IBM East Fishkill
Facility
C. What Solutions are Proposed by the IBM East Fishkill 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 the
Electroplating Sludge From the Definition of Solid Waste?
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 East Fishkill XL Project and
How Will They Be Enforced?
I. How Long Will This Project Last and When Will It Be
Completed?
IV. Additional Information
A. How to Request a Public Hearing
B. How Does This Rule Comply With Executive Order 12866:
Regulatory Planning and Review?
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
[[Page 30351]]
1. Applicability of Rules in Authorized States
2. Effect on New York Authorization
G. How Does This Rule Comply With Executive Order 13045:
Protection of Children From Environmental Health Risks and Safety
Risks?
H. How Does This Rule Comply With Executive Order 13132:
Federalism?
I. How Does This Rule Comply With Executive Order 13175:
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 Final Project Agreement (FPA) sets forth the intentions of EPA,
NYSDEC, and the IBM East Fishkill facility in Hopewell Junction, NY
with regard to a project developed under Project XL, which is an EPA
initiative to allow regulated entities to achieve better environmental
results with limited regulatory flexibility. The proposed regulation
will allow 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 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, 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; stakeholder involvement and support; test of an innovative
strategy; transferability; feasibility; identification of monitoring,
reporting and evaluation methods; and avoidance of shifting risk
burden. To be selected, the XL projects must have the full support of
the affected Federal, State, local and tribal agencies.
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 East
Fishkill XL project addresses the XL criteria, readers should refer to
the Final Project Agreement available from the EPA RCRA docket, the
U.S. EPA Region 2 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) that provides the flexibility required for the
XL pilot project, and after the Final Project Agreement has been signed
by all designated parties, the XL pilot project proceeds on to
implementation and evaluation.
Final Project Agreement
The Final Project Agreement (FPA) is a written voluntary agreement
between the project sponsor and regulatory
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agencies. The 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 FPA identifies performance goals and indicators that track whether
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 is also available on the world wide web
at http://www.epa.gov/projectxl/.
III. Overview of the IBM East Fishkill XL Project
EPA is today requesting comments on the proposed rule to implement
key provisions of this Project XL initiative. Today's proposed rule
would facilitate implementation of the FPA that has been developed by
EPA, the New York State Department of Environmental Conservation
(NYSDEC), the IBM East Fishkill facility, and other stakeholders.
Today's proposed rule, when finalized, would not be effective in New
York until the State has made conforming changes (or used other legal
mechanisms) to modify its hazardous waste program.
A. To Which Facilities Will the Proposed Rule Apply?
This proposed rule, when finalized, would apply only to the IBM
East Fishkill facility in Hopewell Junction, NY. Further, the
regulatory modification being proposed is intended to only apply to a
portion of the total F006 electroplating sludge generated at the
facility (specifically, the sludge designated as B/690 West Complex
sludge, which is the subject of the Final Project Agreement (FPA)
included in the docket for this proposal). However, it should be noted
that IBM expects to implement waste minimization technologies to remove
hazardous constituents from the sludge generated at a separate
wastewater treatment plant (i.e., the B/386 East Complex), pursue
another FPA (or addendum to the current FPA), and include the B/386
East Complex wastewater treatment sludge in this XL pilot project. The
regulatory modification being proposed today has been crafted to allow
for the future inclusion of the B/386 East Complex sludge in this XL
project without an additional rulemaking. A more detailed discussion of
the regulatory modification is presented in section III. E. A more
detailed discussion of the sludge that is the focus of this XL project
is presented in Section III. B. 3.
B. What Problems Will the IBM East Fishkill XL Project Attempt to
Address?
IBM believes RCRA oversight (and the regulatory requirements such
oversight imposes) does not provide an increase in protection of human
health and the environment when applied to the recycling scenario
involving the use of IBM's wastewater treatment sludge as an ingredient
in the production of cement. Rather, IBM believes the RCRA regulatory
requirements serve as a disincentive to an otherwise viable and
environmentally sound recycling scenario.
1. Background on the Definition of Solid Waste
On January 4, 1985 the Agency promulgated the basic regulatory
definition of solid waste (see 50 FR 614). Under the current RCRA
regulatory framework, a hazardous secondary material \1\ being recycled
may meet the definition of solid waste, depending on the type of
secondary material (e.g., spent material, by-product, sludge) and the
type of recycling (e.g., reclamation, use as an ingredient, use
constituting disposal). (See 40 CFR 261.2.) As provided at 40 CFR
261.2(e)(1)(i), a hazardous secondary material that is used as an
ingredient in an industrial process to make a product is excluded from
the definition of solid waste. However, 40 CFR 261.2(e)(2)(i) limits
the (e)(1)(i) exclusion such that materials used to produce products
that are applied to the land are not excluded. As explained in the
preamble to the January 4, 1985 rulemaking, RCRA jurisdiction over
hazardous secondary materials that are used on the land is based in
part on the fact that the environmental impact of such use is basically
the same as the environmental impact of conventional land disposal (see
50 FR at 628). Indeed, the potential impact in many cases is worse
because there are more potential human environmental exposure pathways
for waste-derived products than there are for landfilled wastes (see
Association of Battery Recyclers v. EPA, 208 F. 3d. 1047 (D.C. Cir.
2000); 53 FR at 17605 (May 17, 1988)). Also, as a generalization,
products that are used on the land are of relatively low value and
seldom have product specifications that address the potential presence
of hazardous constituents.
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\1\ Throughtout this preamble, as done in many previous RCRA
rulemakings, EPA uses the term ``secondary material'' as a
convenient means of referring to a material that may or may not be a
solid and hazardous waste when it is recycled. See footnote number
4, 50 FR at 616 (January 4, 1985). Generally, ``secondary
materials'' do not include virgin raw materials or products.
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Therefore, a hazardous secondary material (such as IBM's F006
wastewater treatment sludge) that is used as a legitimate ingredient to
produce cement (presuming that the cement will be used on the land) is
subject to regulation as a hazardous waste, including among other
things, the need for a Hazardous Waste Manifest (and hazardous waste
transporter), and possibly storage permits at the recycling facility
(in this case, a cement manufacturer). And, while the waste-derived
product (i.e., the cement made using the sludge as an ingredient) is
exempt from any further regulatory requirements pursuant to 40 CFR
266.20(b), assuming it meets the applicable treatment standards (which
are the same standards the waste would have to meet prior to land
disposal), the waste-derived product remains a hazardous waste within
RCRA jurisdiction. It is the application of this regulatory framework
that IBM believes provides no environmental benefit and serves as a
disincentive to an environmentally sound recycling scenario for the
sludge that is the focus of today's proposal.
2. Legitimate Recycling Determination
Inherent to the regulatory definition of solid waste as it applies
to hazardous secondary materials that are recycled is the concept that
the recycling actually be ``legitimate recycling'' as opposed to ``sham
recycling,'' which is treatment and/or disposal (including disposal
through incorporation into a product) of a hazardous secondary material
under the guise of recycling (50 FR at 638, January 4, 1985). This
determination is not always clear-cut and often involves assessing the
intent of the activity by evaluating circumstantial evidence.
Basically, the determination rests on whether the secondary material is
sufficiently ``commodity-like.'' This entails an evaluation of whether
the material truly has value as a raw material/product and whether the
recycling process is likely to release hazardous constituents (or
otherwise pose risks to human health and the environment) that are
different from or greater than those from the processing of an
analogous raw material/product. The criteria used to evaluate whether a
secondary material is legitimately being recycled are presented in an
April 26, 1989 memorandum from Sylvia K. Lowrance, Director of the
Office of Solid Waste, to the Hazardous Waste
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Management Division Directors in Regions I-X, entitled ``F006
Recycling.'' \2\ The following discussion presents the criteria and
EPA's evaluation of the criteria in the context of the recycling
scenario that is the focus of this XL project. It should be noted that
these criteria are intended to be used as a means of focusing the
overall consideration of a specific recycling scenario and are meant to
be taken as a whole (which, in effect, means that a negative response
to one or more criteria does not necessarily mean that the recycling
scenario is a sham).
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\2\ The criteria contained in the memorandum were consolidated
from preamble discussions presented in various Federal Register
notices. Specifically, the criteria are drawn from 53 FR at 522
(January 8, 1988); 52 FR at 17013 (May 6, 1987); and 50 FR at 638
(January 4, 1985). This memorandum is included in the docket for
today's proposal.
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(1) Is the secondary material similar to an analogous raw material
or product?
This is discussed in detail below.
(2) What degree of processing is required to produce a finished
product?
The sludge must undergo significant processing to produce a
finished product, consistent with the processing the analogous raw
materials must undergo to produce cement. No special processing of the
sludge is required.
(3) What is the value of the secondary material?
The sludge will likely have a negative monetary value (IBM expects
to pay a fee to a cement manufacturer receiving the sludge). However,
the Agency acknowledges that the pure economics of a recycling scenario
are difficult to gauge because RCRA regulations are a very real factor
influencing the economics of such scenarios. If RCRA did not exist, it
is quite possible that a cement manufacturer would pay to receive such
a high-calcium containing material (comparable to the price paid for
analogous raw materials, such as limestone). However, due to the
existence of the RCRA regulations which, in effect, impose costs on IBM
for the management of the sludge, a cement manufacturer can charge a
fee for the sludge (presumably less than the fee charged by a disposal
facility), giving the sludge a negative value.
(4) Is there a guaranteed market for the end product?
Cement is a widely available commercial product with a proven
market. As the applications for cement vary, so do specifications for
the various products required. Customers of cement kilns will continue
to demand that their product specifications be met whether or not IBM's
sludge is among the raw materials used to manufacture their product. In
the FPA for this project, IBM agreed that the cement kiln which
recycles its sludge will provide to IBM a certification that the sludge
delivered to the kiln (from the IBM East Fishkill facility) was used as
an ingredient in the manufacture of cement in accordance with both
product specifications and generally accepted cement industry
standards. Accordingly, there will be a guaranteed market for cement
which meets product specifications. If, however, the cement product
fails to meet specifications due to the use of the sludge as an
ingredient and cannot be sold (or reprocessed and sold), then it must
be managed as a hazardous waste in accordance with all applicable RCRA
regulations.
(5) Is the secondary material handled in a manner consistent with
the raw material/product it replaces?
No. Consistent with the experimental nature of XL projects, the
sludge will be managed more carefully than the raw material it
replaces. As agreed to in the Final Project Agreement (FPA), IBM will
ensure that the sludge is managed to prevent releases to the
environment. IBM has assured the other signatories to the FPA that a
cement manufacturer must agree to manage the sludge protectively to
receive the sludge. Accordingly, management of the sludge to prevent
releases is being included as a condition of the site-specific
exclusion being proposed today. Another condition of the exclusion is a
requirement for IBM to submit semi-annual reports to the agencies
detailing the volumes of sludge recycled as part of this XL project.
(6) Other relevant factors.
This is a broad criterion that allows for the consideration of
other factors not otherwise evaluated. In this specific case, the fact
that this recycling scenario was conducted previously and deemed to be
successful by IBM (as discussed in section III. B. 3.) was another
factor considered. Also, the fact that this recycling scenario will be
conducted in the context of an XL project, which assumes a certain
level of regulatory oversight by the Regional office and State
regulatory agency, was considered.
For hazardous secondary materials that are used as ingredients to
produce a product, one of the key considerations in evaluating whether
the secondary material is similar to an analogous raw material is a
comparison of the constituent compositions of both the hazardous
secondary material and the analogous raw material it replaces.\3\
Naturally, the hazardous secondary material must contribute useful or
necessary constituents to the production of the product, as do the
analogous raw materials. However, to the extent that the hazardous
secondary material contains unnecessary (to the product or production
process) hazardous constituents at higher concentrations than found in
the analogous raw materials, or hazardous constituents not found in the
analogous raw materials, one could infer that the constituents are
being treated or disposed under the guise of recycling, even if some
portion of the secondary material is useful to the production process
(see the April 26, 1989 memorandum from Sylvia K. Lowrance, Director of
the Office of Solid Waste, to the Hazardous Waste Management Division
Directors in Regions I-X entitled ``F006 Recycling'' available in the
docket for this proposal).
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\3\ In this case, the Agency notes that by comparing a secondary
material to an analogous raw material, one can ascertain the
expected impact of using the secondary material as an ingredient
instead of the raw material. If the physical/chemical compositions
of both materials are comparable, the product made with the
secondary material would be expected to have the same
characteristics and qualities as the product made with the analogous
raw material. Similarly, the environmental impact (e.g., emissions
to air or water) of the actual processing of the secondary material
would be expected to be the same as from the processing of the
analogous raw material.
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Several considerations are worth noting concerning the similarity
of IBM's sludge to the analogous raw materials used to produce cement.
A comparative analysis of representative samples of IBM's wastewater
treatment sludge and samples of analogous raw materials (which, in this
case, is taken to be the combination of all the feedstocks that
normally make up the feedstream to the cement manufacturing process
rather than an individual component, such as limestone) from various
cement manufacturing facilities indicates that certain heavy metals
(specifically lead, cadmium,\4\ and chromium) may be present at
slightly higher concentrations in the sludge than in the analogous raw
materials. Additionally, the wastewater treatment sludge contains
somewhat higher levels of fluoride than found in the analogous raw
materials. However, given the variability in both IBM's wastewater
treatment sludge and in the raw material
[[Page 30354]]
feedstocks used by cement manufacturers, and the very low levels of
hazardous metals in the sludge, the Agency agrees with IBM that the
slightly higher levels are not significant but rather are consistent
with the variability typically found in raw materials mined from
different sites. In other words, one could expect to find analogous raw
materials (e.g., from various mining sites) that contain equivalent or
even higher levels of the hazardous constituents found in IBM's sludge.
(The data used in comparing IBM's sludge to the analogous raw materials
are contained in the Final Project Agreement, which is included in the
docket for today's proposal.)
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\4\ It should be noted that IBM has conducted an inventory of
the hazardous constituents used in its production processes and
found that cadmium is not used. IBM's explanation for the presence
of cadmium in the wastewater treatment sludge is that the cadmium
may be a contaminant in the lime (i.e., calcium hydroxide) used in
its wastewater treatment process. Similarly, beryllium may be found
in the sludge at measurable levels, even though beryllium is not
used in the manufacturing process and is likewise assumed to be a
contaminant in the lime used to precipitate the metals from the
wastewaters.
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As for the fluoride content of the sludge, it should be noted that
fluoride is not a regulated constituent in F006, nor is it a RCRA
Appendix VIII hazardous constituent. While fluoride is normally present
in cement, IBM's sludge does have notably higher concentrations of
calcium fluoride than are typically found in analogous raw materials.
Consequently, only a portion of the calcium needed for the production
of cement can be derived from the sludge because fluoride
concentrations above a certain threshold may have adverse effects on
the cement product (or on concrete made using the cement product).
Thus, the sludge could not function as the sole source of the calcium
in the aggregate of raw materials fed to a cement kiln because the
attendant fluoride concentration could exceed that specified for the
product. However, the same point may be made with regard to traditional
feedstocks used in the production of cement, although the unwanted
constituent may be one other than fluoride.
It is a standard practice in the cement industry to combine the
various raw material feedstocks that comprise the aggregate composite
fed to a cement kiln so that essential components are supplied without
resulting in a greater-than-desirable concentration of unwanted
constituents (as determined by the product specifications being met),
as well as to maximize the cost-effectiveness of the manufacturing
process. To do this, a cement manufacturer would analyze individual
feedstocks to determine their constituent make-up and then determine
the respective proportions of the feedstocks to be used in preparation
of the aggregate composite feedstream. For example, a shipment of
limestone may be analyzed for its calcium content and be found to also
have a high iron (also an essential constituent in cement) content.
When this shipment of limestone is used as a source of calcium to make
up the feedstream, less iron from another source (e.g., from mill
scale, an iron rich by-product of the steel manufacturing process) will
need to be added to the feedstream. The Agency believes that, in this
specific instance, the limitation on the use of the sludge as a source
of calcium, due to its fluoride content, is consistent with normal
manufacturing practices rather than an indication that the sludge is
not a viable ingredient in the manufacture of cement. The Agency
believes that, up to a certain limit, the calcium from the IBM's sludge
will perform as effectively in the production of cement as traditional
calcium-bearing feedstocks. The Agency notes that the proportion of
traditional calcium-bearing feedstocks may similarly be limited by the
levels of constituents (other than calcium) that they contain.
Another consideration in the legitimacy determination concerns the
ratio of sludge to analogous raw materials. In general, the Agency
would consider a low ratio of hazardous secondary material to normal
feedstocks to potentially be an indication of sham recycling. For
example, a low ratio suggests that the hazardous secondary material may
not truly be similar to the analogous raw materials. Moreover, it
suggests that the hazardous secondary material is merely being diluted
and disposed of by incorporation into a product. A low ratio of
hazardous secondary material to normal feedstocks might also imply that
the hazardous secondary material contributes so little as to be
otherwise unnecessary to the production of the product (see 50 FR at
638, January 4, 1985). In the case of this XL project, however, it is
important to note that IBM currently only generates approximately 300
tons/year of the sludge that is the subject of this XL project, and a
typical cement manufacturer processes more than 60,000 tons/year of raw
materials. Therefore, the overall ratio of sludge to raw material
feedstocks could be, at a minimum, approximately 1:200. Although the
ratio of IBM's sludge to normal cement feedstocks could be as low as
1:200, in reality it is expected that the sludge will make up a higher
percentage of the overall feedstream on a per batch basis because the
sludge is expected to be processed soon after the cement manufacturer
receives it (as opposed to being stored long enough to be evenly
distributed among all batches of cement). Thus, the actual ratio will
primarily depend on the frequency of the shipments of sludge from IBM
to the cement manufacturer, but it may be relatively small. Also, as
discussed further in section III. B. 3., it should be noted that it is
likely that the sludge generated by the B/386 East Complex wastewater
treatment plant will also be included in this XL pilot project in the
future, assuming the sludge achieves the same low levels of hazardous
constituents and is the subject of another Final Project Agreement
(FPA) or addendum to the current FPA. The estimated volumes of this B/
386 East Complex sludge is projected to be 3,900 tons per year. An
additional 2,400 tons of non-hazardous wastewater treatment sludge
(also generated in the East Complex wastewater treatment plant, but in
a system segregated from the treatment of the electroplating
wastewaters) may be recycled as an ingredient in cement. While this
sludge is non-hazardous and therefore does not require any Federal
regulatory flexibility to be recycled as an ingredient in cement, it
should be noted that when combined with the total volumes of sludges
that may, in the future, be recycled as an ingredient in cement, the
total approaches 6,600 tons per year, much more consistent with the
volumes of raw material feedstocks normally used to produce cement.
Taking into consideration all the criteria, as discussed above, EPA
and NYSDEC have determined that the use of IBM's sludge as an
ingredient in cement is legitimate recycling in the context of this XL
project. It should particularly be noted that the Agency has made this
determination of ``legitimate recycling'' only in the context of this
XL project. The intent of this pilot project is to test an alternative
approach from the current regulatory framework, and by its very nature,
assures some level of project oversight by the EPA Region 2 office and
NYSDEC (as discussed above, this was considered as an ``other relevant
factor''). Accordingly, the analysis done by EPA, as summarized above,
which resulted in a legitimacy determination was a necessary element of
this XL project. Normally, however, a determination of legitimate
recycling (as the basis for an exclusion from the definition of solid
waste) is a self-implementing determination (i.e., the exclusion
requires no prior approval from EPA). Nevertheless, written concurrence
from the appropriate regulatory agency that a given recycling activity
is legitimate is strongly encouraged because persons claiming an
exclusion from the definition of solid waste must be able to support
their claim in the event of an enforcement action (see 40 CFR
261.2(f)).
[[Page 30355]]
3. Site-Specific Considerations at the IBM East Fishkill Facility
The IBM East Fishkill facility in Hopewell Junction, NY conducts
semiconductor research and development operations, as well as the
manufacture of semiconductor and electronic computing equipment. As a
result of these process operations, which include electroplating
operations, wastewaters containing dissolved heavy metal and fluoride
compounds are generated and subsequently treated in two separate on-
site fluoride/heavy metal (F/HM) wastewater treatment facilities, an
East Complex (B/386) and a West Complex (B/690). The sludge generated
from electroplating wastewaters by both wastewater treatment facilities
is designated as F006 Hazardous Waste. The sludge generated by the
wastewater treatment facility that serves the West Complex of the
facility, identified by IBM as the Building 690 (B/690) F/HM Wastewater
Treatment Facility, is the focus of this XL project. In addition to the
F006 generated, the East Complex (B/386) generates a non-hazardous
wastewater treatment sludge in a segregated wastewater treatment system
that does not process electroplating wastewaters (IBM segregated the
electroplating wastewaters from other facility wastewaters to minimize
the amount of hazardous waste being generated).
Of the total volume of approximately 825 tons per year of F006
waste currently generated by the IBM East Fishkill facility,
approximately 300 tons per year are generated by the B/690 West Complex
wastewater treatment facility and are the subject of today's proposal.
IBM has determined that the sludge generated by the B/386 East Complex
wastewater treatment facility is not, at this time, a viable ingredient
in cement production. However, as the Final Project Agreement states,
IBM will consider (should the implementation of this XL project prove
successful) implementing various waste minimization measures to improve
the quality of the B/386 East Complex sludge, making it a suitable
ingredient in cement production as well, and initiating steps to
include the B/386 East Complex sludge in this XL project.
Since the signing of the FPA and during the development of this
proposal, IBM's projections for production demand for the next few
years has grown significantly. As part of planning for scaling up their
production capability, IBM is considering several options to address
the increased wastewater treatment capacity needed to accommodate the
projected increase in wastewater resulting from an increase in
production. One of these options is to implement waste minimization
technologies to remove hazardous constituents (e.g., lead) from the B/
386 East Complex electroplating wastewater stream prior to
precipitating the sludge and subsequently including the B/386 East
Complex sludge in this XL pilot project. While the volume of
electroplating sludge generated in the B/386 East Complex wastewater
treatment plant is currently approximately 525 tons per year, due to
the expected increase in production and corresponding increase in
sludge generation the volume is estimated to increase to 3,900 tons per
year. An additional estimated 2,400 tons of non-hazardous sludge
generated in the B/386 East Complex wastewater treatment plant may also
be included; however, the Agency notes that because this sludge is non-
hazardous, no Federal regulatory flexibility is required to recycle the
sludge as an ingredient in cement. Taken all together, the IBM facility
could ship approximately 6,600 tons per year of sludge to be used as an
ingredient in cement (300 tons/year of sludge currently included in the
pilot project, plus 3,900 tons/year of sludge that may become included
in this pilot project, plus 2,400 tons/year of non-hazardous sludge)
once production has increased. While today's proposal is focused
primarily on the 300 tons/year of B/690 West Complex sludge that is
currently the subject of the FPA, the Agency is also soliciting comment
on the possible future inclusion of the 3,900 tons of B/386 East
Complex sludge in this XL pilot project and the exclusion from the
definition of solid waste that is being proposed to implement this
project. In considering comments, the reader should assume that the
threshold levels for hazardous constituents in the sludge and other
conditions of the exclusion being proposed for the B/690 West Complex
sludge will remain the same for the B/386 East Complex sludge, the only
difference being the increase in the volume of sludge being recycled.
Should the B/386 East Complex sludge become comparable to the B/690
West Complex sludge, and IBM seeks to include the B/386 East Complex
sludge in this XL pilot project, IBM will undertake steps to initiate a
new Final Project Agreement or an addendum to the existing FPA, which
will undergo the same process of stakeholder outreach and solicitation
of comment on the Draft FPA (or addendum) as was done for the existing
FPA. Upon signature of the FPA (or addendum) by representatives of EPA,
NYSDEC, and IBM that would include the B/386 East Complex sludge in
this XL pilot project, the B/386 East Complex sludge may be recycled
pursuant to the exclusion being proposed today, assuming the conditions
are met.
Also, it should be noted that IBM has recycled both the B/386 East
Complex and B/690 West Complex sludges as an ingredient in cement in
the past. In 1987, IBM East Fishkill petitioned NYSDEC and EPA Region 2
to allow the recycling of the B/690 West Complex sludge as an
ingredient in cement outside of RCRA regulatory controls. Both NYSDEC
and EPA agreed that the sludge could be used as a legitimate ingredient
in cement and concurred that the sludge would be excluded from the
definition of solid waste and therefore, RCRA regulations would not be
applicable. In 1988, IBM contracted with a cement manufacturer (which
has since been sold and is now operated under new management as a
different company) to use the sludge as an ingredient in cement. This
recycling practice continued until 1991. In 1991, the original
regulatory interpretation granting an exclusion for the sludge was re-
evaluated and it was subsequently determined that because cement is a
product presumed to be applied to the land, the sludge was not excluded
from the definition of solid waste. At that time (and despite the
apparent success of the recycling program), IBM decided to end the
sludge recycling program. This prior experience demonstrated the
technical and economic viability of using IBM's wastewater treatment
sludge as an ingredient in cement and was considered by EPA as a
``relevant factor'' in determining the legitimacy of the recycling
scenario.
C. What Solution Is Proposed by the IBM East Fishkill XL Project?
To overcome the disincentive posed by RCRA regulatory requirements
to the recycling of its sludge, IBM has proposed to specifically
exclude the B/690 West Complex sludge from the definition of solid
waste and thus, from RCRA regulatory jurisdiction. In effect, the
sludge would be excluded as an ingredient in an industrial process to
make a product (40 CFR 261.2(e)(1)(i)) without application of the
limitation on this exclusion for materials used to produce products
used in a manner constituting disposal (40 CFR 261.2(e)(2)(i)). Based
on their previous experience with this recycling scenario (as discussed
above in Section III. B. 3.), IBM believes the recycling of the B/690
West Complex sludge as an ingredient in cement is protective of human
health
[[Page 30356]]
and the environment and benefits the environment through conservation
of finite natural resources, as well as the conservation of hazardous
waste landfill space for hazardous wastes that are not amenable to
environmentally sound recycling. Further, IBM believes RCRA regulatory
controls provide no additional environmental protection, but rather
serve as such a disincentive to recycling that sludge which could
otherwise be beneficially used to manufacture a product is instead
disposed of in a landfill. Rather than seek a delisting pursuant to 40
CFR 260.22 (for which the Agency would, in general, evaluate whether
the sludge should be designated a hazardous waste and if not, remove
the specific wastestream from the scope of the hazardous waste listing
description through a rulemaking), IBM believed the best approach would
be to ``test'' the need for RCRA jurisdiction over this sludge when it
is recycled into cement. Therefore, IBM has opted to work with the
Agency, NYSDEC, and interested stakeholders to develop and implement a
pilot project under Project XL that will assess whether the B/690 West
Complex sludge can be used as an ingredient to produce cement in an
environmentally sound manner without RCRA Subtitle C regulatory
controls and to develop information that will contribute to possible
future regulatory actions by the Agency regarding the management of
F006 wastes.
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 exclusion in 40 CFR 261.4(a) (i.e.,
``Materials which are not solid wastes.'') for the wastewater treatment
sludge generated at the IBM East Fishkill facility when used as an
ingredient in the production of cement. This site-specific exclusion
will include conditions which reflect the intent to ``test'' whether
this recycling scenario can be realized in an environmentally sound
manner and to gather a portion of the data needed to make an informed
determination concerning the possible adoption of the regulatory
flexibility on a national level.
E. Why Is EPA Supporting This Approach To Removing the Electroplating
Sludge From the Definition of Solid Waste?
The Agency agrees with IBM that this XL project has merit and has
the potential to yield greater environmental benefits should this
exclusion be adopted on a national basis. Project XL offers the
opportunity for the Agency to test its belief that this recycling
scenario can be protective of human health and the environment outside
of RCRA regulatory control. Further, this is the type of pilot project
for which Project XL was conceived, to provide the opportunity to
explore alternative regulatory approaches that differ from the current
regulatory framework.
EPA notes that F006 is a very large volume hazardous wastestream
nationwide. (In an October 7, 1998 study prepared by EPA's Office of
Solid Waste and Emergency Response (OSWER), the amount of F006
generated in the US per year was estimated to range from 360,000 to
500,000 tons of dry weight equivalent.) A large portion of this
wastestream is undoubtedly more amenable to other forms of recycling
(e.g., recovery of metal values) than for use as an ingredient in
cement, and some portion may prove to be inappropriate for any current
recycling technology; however, the Agency believes that even if a small
portion of this total volume of sludge (as well as other similar
wastestreams) proves to be sufficiently similar to IBM's B/690 West
Complex sludge to legitimately be recycled in this manner,
environmental benefits could result. Although this XL project will
provide data regarding the effectiveness and safety of using IBM's
wastewater treatment sludge as an ingredient in the manufacture of
cement, EPA anticipates that additional data on other F006 sludges
would need to be collected prior to developing a national rulemaking
for this particular recycling scenario.
The Agency also notes that the drafting of the regulatory text
warrants particular attention by commenters on this proposal. As
discussed earlier, the intent of this regulatory modification is to
allow for the signed FPA to be implemented (after the State also makes
the necessary changes to its hazardous waste program to likewise allow
for this pilot project to be implemented). However, the regulatory text
being proposed would apply more broadly than the project described by
the current FPA. Specifically, the conditional exclusion being proposed
is not limited to the sludge generated in the B/690 West Complex, but
rather applies generically to wastewater treatment sludge generated at
the IBM East Fishkill facility. This is being done in anticipation of
the inclusion of the sludge generated in the B/386 East Complex as part
of this pilot project, after the signing of a new FPA or addendum to
the existing FPA. Normally, the Agency would wait until the new FPA (or
addendum) has been developed and signed before undertaking a regulatory
modification to include the additional wastes subject to the new FPA
(or addendum). However, because the exclusion being proposed today
includes conditions that address the concentration levels of hazardous
constituents in the sludge, as well as protective management practices
and data gathering and reporting requirements, that are designed to
ensure that the sludge will not pose an increase in risk to human
health and the environment during this pilot project, the Agency
believes it makes sense to propose the regulatory modification more
broadly to allow for the inclusion of the B/386 East Complex sludge
immediately upon signature of the new FPA (or addendum). EPA believes
that the only potential concern that may arise by the inclusion of the
B/386 East Complex sludge would be the additional volumes of the B/386
East Complex sludge (which are estimated to be an additional 3,900
tons/year). Therefore, the Agency is specifically soliciting comment on
the potential inclusion of the additional volume of sludge in this
pilot project, as well as on whether it is appropriate to propose to
modify the regulations to accommodate a potential future addendum to
the existing FPA (or a new FPA) that would bring additional volumes of
sludges within the scope of the exclusion.
F. How Have Various Stakeholders Been Involved in This Project?
IBM understands that stakeholder involvement is an integral part of
the XL process and has encouraged interested stakeholders to pursue an
active role in the development of this XL project. In addition to
contacting a broad base of potential stakeholders in the local
community, IBM has and commits to continue to conduct outreach to a
regional and national cross-section of potentially interested parties.
IBM has also undertaken several initiatives in an effort to solicit
interest in the XL project from a targeted audience of environmental
groups. For example, on April 26, 2000, IBM gave a presentation on this
XL project followed by a question and answer session to the Dutchess
County Environmental Management Council (EMC), which is comprised of 21
representatives who advise their local governments and citizens on
environmental issues. Similarly, IBM made a presentation on the XL
project to the Town of East Fishkill Conservation Advisory Council
(CAC). Following the one-hour presentation and discussion session,
there was a general consensus among the CAC members that the project
should be supported. Finally, IBM
[[Page 30357]]
retained the services of the Atlantic States Legal Foundation, Inc. (an
environmental advocacy group) to assist with the involvement of
stakeholders by facilitating notification of public meetings and
coordinating the input of interested stakeholders in the development of
the Final Project Agreement.
EPA notes that should IBM seek to include the additional volume of
sludge generated at the East Complex wastewater treatment plant (i.e.,
B/386 East Complex sludge) in this pilot project, the same efforts to
seek stakeholder involvement will be an integral part of the
development of the new FPA (or addendum to the current FPA) that will
allow for the additional sludge to be included in the pilot project.
G. How Will This Project Result in Cost Savings and Paperwork
Reduction?
The IBM East Fishkill facility will continue to be regulated as a
Large Quantity Generator due to the volume of hazardous wastes (not
subject to this XL project) generated at other parts of the facility.
Therefore, IBM will continue to have similar paperwork requirements.
Additionally, given the nature of a pilot project, IBM will be required
to report additional information as a means of evaluating this pilot
project and to assist the Agency by providing some of the information
necessary to evaluate whether similar regulatory flexibility should be
transferred to the national program. This XL project initially
addresses only a relatively small volume of wastewater treatment sludge
(approximately 300 tons/year). Therefore, the immediate cost savings to
the IBM East Fishkill facility resulting from this XL project are not
expected to be great, though some savings will be realized. The 300
tons/year of wastewater treatment sludge that EPA is today proposing to
exclude from the definition of solid waste currently costs the IBM East
Fishkill facility approximately $27,000 to dispose of in a permitted
hazardous waste landfill in Canada. This amount will be saved as a
result of finalizing today's proposed exclusion (although IBM expects
to pay some amount to the cement manufacturer for recycling the sludge
as an ingredient in cement). An additional $8,000 (approximately) will
be saved from the New York State waste management fees charged for
hazardous wastes disposed in a landfill ($27/ton/year of waste).
Because IBM expects to pay for the transportation of the sludge to the
cement manufacturing facility, there are no notable savings in
transportation costs. The IBM East Fishkill facility expects to save a
total of $35,000 per year as a result of this proposed XL project. The
Agency notes, however, that should the projections for increased
production and consequent sludge generation prove accurate, and the
expected addition of the B/386 East Complex sludge in this pilot
project occur, the total volume of sludge that would otherwise be
subject to hazardous waste management costs could be approximately
4,200 tons per year, with potential savings (including both disposal
fees and New York State waste management fees) of $500,000 per year.
EPA, as well as NYSDEC, will benefit from some paperwork reduction
and cost savings by not having to process and track additional
manifests and export documents that will otherwise have to be processed
without this XL project. Again, however, these cost savings and
paperwork reductions will be limited because of the other hazardous
wastes generated at the facility.
This project has the potential to result in significant cost
savings and paperwork reduction if this pilot project proves successful
and the regulatory flexibility is promulgated on a national basis. On a
national level, the overall cost and paperwork reductions that could be
realized may be more significant, assuming wastewater treatment sludges
generated by other facilities are amenable to this type of recycling.
The Agency would need to collect additional data on a wider cross-
section of F006 sludges prior to developing a national rulemaking for
this type of recycling scenario.
H. What Are the Terms of the IBM East Fishkill 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(a) to provide a site-specific exclusion from
the regulatory definition of solid waste (and thus, RCRA regulatory
jurisdiction) for IBM's B/690 West Complex wastewater treatment sludge
that is used as an ingredient in the production of cement. NYSDEC
likewise intends to modify its State hazardous waste program to allow
for the same site-specific exclusion from regulatory controls.\5\ The
Agency intends that the exclusion, once finalized, will apply to all
the wastewater treatment sludge resulting from the B/690 West Complex
wastewater treatment facility that will be used as ingredients in the
production of cement, including those sludges that are in the process
of being generated, sludges that result from wastewaters 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.
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\5\ Implementation of this XL pilot project may be expedited
through the issuance of an Enforcement Directive by NYSDEC while the
project-specific State rulemaking is in process. Under NYSDEC's
program, as long as the sludge remains a regulated hazardous waste
under NYSDEC's hazardous waste regulations, it is exempt from
regulation under NYSDEC's solid waste regulations. Once NYSDEC's
project-specific rulemaking is final, the sludge will conditionally
cease to be a solid or hazardous waste for the purposes of NYSDEC's
hazardous waste program. However, the sludge would then become
subject to regulation as a solid waste under NYSDEC's solid waste
program (6NYCRR Part 360) unless a Beneficial Use Determination
(BUD) has been issued. If a BUD is issued by NYSDEC, the sludge
would be excluded from being a solid waste under NYSDEC's solid
waste program upon arrival at the recycling facility, such that the
recycling facility (i.e., the cement manufacturer) will not require
a NYSDEC permit as a solid waste management facility. Prior to
arrival, the sludge would be subject to regulation as a solid waste
under 6NYCRR Part 360. NYSDEC expects to issue a BUD when the
exclusion from the State hazardous waste regulations becomes
effective.
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Through the development of the Final Project Agreement (FPA), IBM
has agreed to comply with several key criteria as conditions for this
exclusion, which will be included in the regulatory language. These
conditions are focused on ensuring continued protection of human health
and the environment, documenting the environmental benefits resulting
from the removal of RCRA Subtitle C regulatory control over the
recycling of the B/690 West Complex wastewater treatment sludge as an
ingredient in cement, and gathering the data and other information that
may assist the Agency in making a determination regarding the possible
transfer of this site-specific exclusion to the national program in the
future. Such data may be useful in supporting future EPA regulatory
initiatives regarding the recycling of F006 wastestreams to make cement
products, however, the Agency would need to collect additional
information on a broader cross-section of F006 prior to developing a
national rulemaking for this particular recycling scenario.
As conditions of the site-specific exclusion, IBM must comply with
the following:
(1) Analysis (using the methods specified in 40 CFR Part 264,
Appendix IX) of the constituent concentrations in the B/690 West
Complex wastewater treatment sludge to ensure that the sludge being
recycled remains consistent with the sludge evaluated in
[[Page 30358]]
developing this XL project and that it meets the threshold levels
discussed below. IBM must perform this analysis every three months for
an initial 12-month period. (Note that some or all of these data may be
derived from the time period immediately preceding the effective date
of this rule.) Following the initial 12-month period (i.e., four
sampling/analysis events), IBM must analyze the sludge every six months
for the duration of the XL project. These analytical data (including
both the 3-month and 6-month sampling/analysis events) must be
submitted to the Region 2 office and NYSDEC every six months.
Additionally, after any change in the manufacturing process or
wastewater treatment process that could affect the chemical composition
of the wastewater treatment sludge, sampling and analysis must be
conducted.
(2) Management standards for the sludge to ensure that the sludge
is actually recycled rather than inadvertently released to the
environment, and to ensure that the sludge is managed as a commodity.
(3) Tracking of the sludge, to ensure that the sludge reaches the
cement manufacturing facility. In general, under the current hazardous
waste regulations (see 40 CFR Parts 262, Subpart D and 263, Subpart B),
wastes are tracked through the use of a hazardous waste manifest which
accompanies the waste shipment.\6\ The regulatory requirements are
designed to ensure that the waste is actually received by the facility
intended to receive the waste, with built-in time limits requiring a
generator to proactively address a shipment that has not been received
in a timely fashion. However, because this pilot project provides an
exclusion from the definition of solid waste (and therefore from being
a hazardous waste), the manifest requirements do not apply.
Nevertheless, the Agency believes the need to track the wastewater
treatment sludge still remains, to ensure that a shipment of sludge
actually reaches its intended destination. However, the Agency does not
believe that in this case a hazardous waste manifest, or a similar
document, is the only means to ensure that the sludge is being shipped
and received appropriately. Therefore, the Agency is allowing IBM the
flexibility to develop a tracking system that, in effect, provides the
same assurances that the hazardous waste manifest would provide.
Specifically, this tracking system must include the following
information: the date of shipment, volume of sludge being transported,
where the sludge is being shipped, and the date that the shipment was
received. IBM remains responsible for ensuring that the sludge is
actually received and processed by the cement manufacturer.
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\6\ Upon receipt of the waste shipment, the receiving facility
must sign and return a portion of the manifest to the generator as
acknowledgment of receipt of the waste. In the event that the
generator does not receive notification that the waste has been
received within 35 days, the generator must contact the transporter
and/or the facility designated to receive the waste in an effort to
ascertain the status of the waste shipment. If the generator does
not receive acknowledgment that the waste has been received by the
designated facility within 45 days of the date the shipment was
received by the transporter, the generator must submit an Exception
Report (see 40 CFR 262.42) to the appropriate EPA Regional office
describing the efforts undertaken to locate the waste shipment and
the results of these efforts.
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(4) Additional data collection and reporting on the volumes of
sludge recycled as part of this XL project, and an accounting of the
volume of analogous raw materials conserved, or alternatively, the
increased volume in cement produced as a result of using the sludge as
an ingredient.
The threshold levels for the hazardous constituents in the sludge
(one of the conditions of the exclusion) are derived based on six
recent samples of the wastewater treatment sludge taken between
February 1999 and June 2000. Given the analytical results, a standard
statistical method \7\ was used to derive the actual threshold levels,
using a 95% confidence level. These levels are not intended to be
health-based levels. The threshold levels are intended to serve as a
means to gauge the performance of the wastewater treatment process and
the composition of the sludge, given that EPA's willingness to
implement this pilot project was based in part on the very low levels
of hazardous constituents in the sludge and given that this pilot
project is premised on the sludge being comparable to the raw
ingredients used to produce cement.
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\7\ The standard statistical method establishes a confidence
interval that encompasses a certain percentage of the area beneath
the bell curve for a normally distributed set of data. The
confidence interval has an upper limit and a lower limit. This test
was initially designed to determine if individual data points fall
within a pre-established confidence interval. Data falling outside
the interval are determined to be statistically invalid and are
discarded. The test has also been adapted for use in establishing
reasonable limits within which future data can reasonably be
expected to fall.
For the purposes of establishing an exceedance threshold, only
the upper limit is used; the lower limit is not used. The upper
limit is calculated as follows: (upper limit of confidence interval)
= mean + t* (standard deviation).
A standard statistical table was used to determine the value of
`t' for each set of results based on the degrees of freedom (n - 1,
where n is the number of results) and an upper limit of 0.05 (95%).
As several of the samples had constituents that were not detected, a
method had to be employed to handle these cases. Discarding non-
detected results would skew the calculated thresholds high and also
increase the degree of error. A method that is typically used (and
is used here) is to assume that the actual concentration of a
constituent that was not detected falls somewhere between zero and
the method detection limit. On average, these values are expected to
equal one-half the method detection limit. Therefore, for all non-
detect values, one-half the method detection limit is substituted in
the calculation of the mean and the standard deviation.
The threshold level for amenable cyanides was derived by
substituting the threshold level for total cyanides, which the
Agency believes will adequately address any concerns regarding the
possible presence of cyanides in the sludge.
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In addition to analyzing the sludge to ensure that the threshold
levels for the hazardous constituents are met, EPA is requiring IBM to
analyze for two additional hazardous constituents, specifically mercury
and beryllium, which are not necessarily expected to be in the
wastewater treatment sludge. While mercury is not used in the
production process, it is used in the laboratory and could conceivably
end up in the wastewater treatment sludge (although the Agency
acknowledges that in all of the analyses of the sludge, mercury was not
detected). Beryllium is also not used in the production process, nor
anywhere else at the facility. However, as discussed earlier, it has
been found in the sludge in measurable concentrations, presumably
resulting as a contaminant in the lime used in the wastewater treatment
process. IBM has agreed to analyze and provide data on both mercury and
beryllium \8\ to the Agency to increase the available information on
the sludge. Additionally, IBM has agreed that, should mercury or
beryllium be found at significant levels in the sludge, the Agency may
set appropriate threshold levels for these constituents as well,
through a rulemaking to amend the site-specific exclusion from the
definition of solid waste.
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\8\ The Agency notes that cadmium is also not used at the
facility and so would not be expected to be in the wastewater
treatment sludge. As in the case for beryllium, when cadmium is
present in the sludge, it is presumably due to its presence in the
lime used in the wastewater treatment process. Although the Agency
is not setting a threshold limit for beryllium, it is setting a
threshold level for cadmium (with agreement from IBM) because
cadmium is one of the constituents for which F006 was specifically
listed.
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The purpose of the periodic analysis is to serve as a check on the
performance of the wastewater treatment process itself, as well as to
ensure that the sludge is consistently within the threshold
concentration levels for the hazardous constituents in the sludge.
However, in the unlikely event that the quarterly, or semi-annual,
analysis of the wastewater treatment sludge indicates that a specific
batch of sludge exceeds one or more constituent thresholds, the pilot
project will be temporarily suspended until subsequent
[[Page 30359]]
analysis (which can be performed immediately) of the sludge
demonstrates that the thresholds are once again being met (i.e., the
exclusion would not be applicable because the conditions were not met,
and will continue to be non-applicable until IBM demonstrates that the
conditions are again being met). The Agency acknowledges that the
results of the analysis may not be known until after the sludge has
already been received and processed by the cement manufacturer as an
ingredient in cement (due to the materials handling logistics at the
facility, IBM is unable to store the sludge on-site until the results
of the analysis are known). Because the threshold levels are so low and
because the sludge has demonstrated a relatively consistent
composition, the Agency does not believe any action will be necessary
to address the sludge that has already been received and processed into
cement (in effect, that cement will have been ``grandfathered'' by the
conditional exclusion). The Agency will, however, evaluate such
failures to meet the threshold levels as part of its evaluation of the
success of this pilot project.
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 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 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. The proposed site-
specific exclusion that enables the implementation of this XL project
contains a ``sunset provision'' that will effectively terminate the
exclusion automatically after five years, unless further regulatory
action is taken to extend the XL project (or end it sooner).
Prior to, or at the completion of the project term, EPA and NYSDEC
commit to evaluating the project. If the project results indicate that
it was a success, EPA will consider making the site-specific exclusion
permanent (through normal rulemaking procedures). EPA will also
consider transferring the regulatory flexibility (or similar
flexibility) to the national RCRA program (through normal rulemaking
procedures), but such a national change would require more information
than the Agency expects to gather from this XL project. Should on-going
evaluation during the course of the XL project indicate that the
project is not successful, EPA will promulgate a rule to remove the
site-specific exclusion prior to the five-year sunset provision.
However, as for any conditional exclusion, if at any time, should IBM
or the cement manufacturer fail to meet all of the conditions of the
site-specific exclusion, the exclusion is not applicable. Also, the
Agency may promulgate a rule to withdraw the exclusion 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 exclusion 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 East Fishkill XL project should contact Mr. Sam Kerns or Ms.
Aleksandra Dobkowski-Joy of the EPA Region 2 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 July 6, 2001. 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: Regulatory
Planning and Review?
Because this rule affects only one facility, it is not a rule of
general applicability and therefore not subject to OMB review and
Executive Order 12866. In addition, OMB has agreed that review of site-
specific rules under Project XL is not necessary.
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 Hopewell Junction, NY 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
[[Page 30360]]
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 New
York. EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. EPA has also determined that this rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. Thus, today's rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
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 New York Authorization
Today's proposed rule, if finalized, will be promulgated pursuant
to non-HSWA authority, rather than HSWA. New York has received
authority to administer most of the RCRA program; thus, authorized
provisions of the State's hazardous waste program are administered in
lieu of the Federal program. New York has received authority to
administer the regulations that define solid wastes. As a result, if
today's proposed rule to modify the existing regulations to provide a
site-specific exclusion for IBM's wastewater treatment sludge is
finalized, it would not be effective in New York until the State adopts
the modification. It is EPA's understanding that subsequent to the
promulgation of the final rule, New York intends to propose rules or
other legal mechanisms to provide the exclusion. 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. How Does This Rule Comply With Execute 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 and
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.''
The proposed rule does not have federalism implications. It will
not have a substantial direct effect on States, on the relationship
between the national government and the States, or on the distribution
of powers and responsibilities among various levels of government, as
specified in Executive Order 13132. The proposed rulemaking will only
affect one facility, providing regulatory flexibility applicable to
this specific site. Thus, Executive Order 13132 does not apply to this
proposed rule.
I. How Does This Rule Comply With Executive Order 13175: Consultation
and Coordination With Indian Tribal Governments?
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
EPA is currently unaware of any Indian tribes located in the vicinity
of the facility. Thus, Executive Order 13175 does not apply to this
rule.
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
[[Page 30361]]
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., material
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, Waste treatment and
disposal, Recycling.
Dated: May 30, 2001.
Christine Todd Whitman,
Administrator.
For the reasons set forth in the preamble, part 261 of chapter I of
title 40 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
2. Section 261.4 is amended by adding paragraph (a)(22) to read as
follows:
Sec. 261.4 Exclusions.
(a) * * *
(22) Dewatered wastewater treatment sludges generated by the
International Business Machines Corporation (IBM) East Fishkill
facility in Hopewell Junction, New York, provided that:
(i) The sludge is recycled as an ingredient in the manufacture of
cement meeting appropriate product specifications by a cement
manufacturing facility.
(ii) The sludge is not stored on the land, and protective measures
are taken to ensure against wind dispersal and precipitation run-off.
(iii) The sludge is not accumulated speculatively, as defined in
Sec. 261.1(c)(8).
(iv) A representative sample of the sludge undergoes constituent
analysis by IBM (using the methods specified in 40 CFR Part 264,
Appendix IX) demonstrating that the sludge contains constituents at no
greater concentrations than the thresholds presented below. Sludges
generated by different wastewater treatment systems must be analyzed
separately (commingling of the sludges is permissible after sampling).
This sampling and analysis must be conducted every three months for an
initial 12-month period, which can include the immediate period prior
to the effective date of this exclusion. After the initial 12-month
reporting period (i.e., four sampling/analysis events), sampling and
analysis must be conducted every six months for the duration of the
project. Additionally, after any change in either the manufacturing
process or the wastewater treatment process that could affect the
chemical composition of the wastewater treatment sludge, sampling and
analysis must be conducted. In addition to the constituents for which
threshold levels are established, IBM must analyze and report the
concentration levels of mercury and beryllium:
Arsenic--3.0 mg/kg
Cadmium--0.88 mg/kg
Chromium--(total) 22.9 mg/kg
Lead--18.8 mg/kg
Nickel--10.4 mg/kg
Silver--2.1 mg/kg
Cyanide (amenable)--0.815 mg/kg
Cyanide (total)--0.815 mg/kg
(v) An accounting is made of the volumes of sludge that are
recycled, with an assessment of how much less analogous raw materials
are used to produce the same volume of cement product, or how much more
cement is produced attributable to the volume of sludge that is
processed. IBM must acquire this information from the cement
manufacturing facility.
(vi) IBM documents each shipment of the sludge, including where the
sludge was sent, the date of the shipment, the date that the shipment
was received and the volume of each shipment.
(vii) IBM provides EPA and NYSDEC with semi-annual reports
detailing all of the information in paragraphs (a)(22)(i) through (vi)
of this section for the duration of the project.
(viii) Should any of the conditions of paragraphs (a)(22)(i)
through (vii) of this section not be met, the exclusion provided in
this provision will not be applicable and the wastewater treatment
sludge will be subject to the applicable RCRA Subtitle C regulations
until the conditions are once again met.
(ix) The provisions of this section shall expire on [INSERT DATE
FIVE YEARS FROM EFFECTIVE DATE OF FINAL RULE].
* * * * *
[FR Doc. 01-14249 Filed 6-5-01; 8:45 am]
BILLING CODE 6560-50-U