[Federal Register Volume 65, Number 117 (Friday, June 16, 2000)]
[Proposed Rules]
[Pages 37739-37749]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-15154]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-6716-4]


Project XL Site-Specific Rulemaking for the IBM Semiconductor 
Manufacturing Facility in Essex Junction, VT

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) is today proposing 
this rule to implement a pilot project under the Project XL program 
that would provide site-specific regulatory flexibility under the 
Resource Conservation and Recovery Act (RCRA), as amended, for the 
International Business Machines Corporation (IBM) semiconductor 
manufacturing facility in Essex Junction, Vermont. The principal 
objective of this IBM Vermont XL project is to determine whether the 
wastewater treatment sludge resulting from an innovative copper 
metallization process (i.e., an electroplating operation) should be 
designated a RCRA hazardous waste (F006), and thus be subject to RCRA 
regulatory controls. If, as a result of this XL project, the Agency 
determines that the wastewater treatment sludge (which does not 
otherwise exhibit a hazardous characteristic) need not be subject to 
RCRA hazardous waste regulations to be protective of human health and 
the environment and removes such sludges from the hazardous waste 
program, this would not only enhance the cost-effectiveness of the 
innovative process by removing the costs of such regulatory controls, 
but could also encourage the development and installation of this 
innovative process (or similar ones) by other semiconductor 
manufacturers. To achieve this, today's proposed rule, when finalized, 
will provide an exemption of the copper metallization process from the 
narrative listing description of electroplating operations that result 
in an F006 wastewater treatment sludge.

DATES: Public Comments: Comments on the proposed rule must be received 
on or before July 17, 2000. All comments should be submitted in writing 
to the address listed below.
    Public Hearing: Commenters may request a public hearing by June 30, 
2000 during the public comment period. Commenters requesting a public 
hearing should specify the basis for their request. If EPA determines 
that there is sufficient reason to hold a public hearing, it will do so 
by July 7, 2000, during the last week of the public comment period. 
Requests for a public hearing should be submitted to the address below.

ADDRESSES: Comments: Written comments should be mailed to the RCRA 
Information Center Docket Clerk (5305W), U.S. Environmental Protection 
Agency, 1200 Pennsylvania Ave. NW, Washington, D.C. 20460. Please send 
an original and two copies of all comments, and refer to Docket Number 
F-2000-IBMP-FFFFF.
    Request to Speak at Hearing: Requests for a hearing should be 
mailed to the RCRA Information Center Docket Clerk (5305G), U.S. 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, 
D.C. 20460. Please send an original and two copies of all comments, and 
refer to Docket Number F-2000-IBMP-FFFFF. A copy should also be sent to 
Mr. John Moskal at the U.S. EPA New England office. Mr. John Moskal may 
be contacted at the following address: U.S. Environmental Protection 
Agency, New England (SPP), One Congress St., Suite 1100, Boston, MA 
02114, (617) 918-1826.
    Viewing Project Materials: A docket containing the proposed rule, 
draft Final Project Agreement, supporting materials, and public 
comments is available for public inspection and copying at the RCRA 
Information Center (RIC), located at Crystal Gateway, 1235 Jefferson 
Davis Highway, First Floor, Arlington, Virginia. The RIC is open from 9 
am to 4 pm Monday through Friday, excluding Federal holidays. The 
public is encouraged to phone in advance to review docket materials. 
Appointments can be scheduled by phoning the Docket Office at (703) 
603-9230. Refer to RCRA docket number F-2000-IBMP-FFFFF. The public may 
copy a maximum of 100 pages from any regulatory docket at no charge. 
Additional copies cost 15 cents per page. Project materials are also 
available for review for today's action on the world wide web at http://www.epa.gov/projectxl/.
    A duplicate copy of the docket is available for inspection and 
copying at U.S. EPA New England, One Congress Street, Suite 1100 (LIB), 
Boston MA 02114-2023 during normal business hours. Persons wishing to 
view the duplicate docket at the Boston location are encouraged to 
contact Mr. John Moskal or Mr. George Frantz in advance, by telephoning 
(617) 918-1826 or (617) 918-1883, respectively.

FOR FURTHER INFORMATION CONTACT: Mr. John Moskal or Mr. George Frantz, 
U.S.

[[Page 37740]]

Environmental Protection Agency, New England (SPP), Assistance and 
Pollution Prevention Division, One Congress Street, Suite 1100, Boston, 
MA 02114-2023. Mr. Moskal can be reached at (617) 918-1826 (or 
<a href="/cdn-cgi/l/email-protection#b5d8dac6ded4d99bdfdadddbf5d0c5d49bd2dac3"><span class="__cf_email__" data-cfemail="7a171509111b1654101512143a1f0a1b541d150c">[email protected]</span></a>) and Mr. Frantz can be reached at (617) 918-1883 
(or <a href="/cdn-cgi/l/email-protection#0b6d796a657f71256c6e64796c6e4b6e7b6a256c647d"><span class="__cf_email__" data-cfemail="0e687c6f607a7420696b617c696b4e6b7e6f20696178">[email protected]</span></a>). Further information on today's action may 
also be obtained on the world wide web at http://www.epa.gov/projectxl/.

SUPPLEMENTARY INFORMATION: This pilot project assesses the 
appropriateness of designating the sludges resulting from the treatment 
of the wastewaters generated by the copper metallization process as a 
listed hazardous waste (F006), and to characterize those factors that 
may determine whether similar metallization processes should also be 
exempted from the process description in the F006 listing. No other 
hazardous wastes generated and/or managed at the IBM facility are 
affected by this proposed rule. Similarly, no wastewater treatment 
sludges generated through the treatment of wastewaters resulting from 
similar copper metallization processes at other facilities are affected 
by this proposed rule.
    The duration of this XL pilot project is 5 years. The exemption 
from the specified RCRA requirements for the wastewater treatment 
sludge resulting from the copper metallization process at this IBM 
facility does not include a ``sunset provision'' which would 
automatically terminate the exemption at a certain point in the future 
(as is typically done in regulatory changes to facilitate XL pilot 
projects). Instead, EPA and VTDEC (and IBM) commit to evaluating the 
project at the end of its 5-year term. If the project is determined to 
be successful, EPA may consider expanding the scope of the exemption to 
the national level (by rulemaking). If the project is determined to be 
unsuccessful, EPA will promulgate a rule (after notice and comment) to 
remove the site-specific exemption and the wastewater treatment sludge 
will again become subject to the F006 hazardous waste listing. It is 
the intent of EPA and VTDEC that the conditional exemption remain 
applicable to the IBM facility until EPA (and VTDEC) takes regulatory 
action to change the exemption (to either remove it, expand it, or 
perhaps modify it). The five-year term for this XL pilot project begins 
upon the effective date of the final rulemaking (the latter of EPA or 
VTDEC) promulgated to allow for the XL project to be implemented.
    Today's proposed rulemaking will not in any way affect the 
provisions or applicability of any other existing or future 
regulations.
    EPA is soliciting comments on this rulemaking (as well as the draft 
FPA). EPA will publish responses to comments in a subsequent final 
rule. The XL project will enter the implementation phase when the final 
rule is promulgated by EPA and VTDEC, and all signatories to the XL 
project sign the Final Project Agreement.
    The terms of the overall XL project are contained in a draft Final 
Project Agreement (FPA) on which EPA is also requesting comment. The 
draft Final Project Agreement (FPA) (also available in today's Federal 
Register) is available for public review and comment at the EPA Docket 
in Washington DC, in the US EPA New England library, at the IBM Essex 
Junction facility, and on the world wide web at http://www.epa.gov/projectxl/. Following a review of the public comments and appropriate 
changes, the FPA would be signed by representatives from EPA, the 
Vermont Department of Environmental Conservation (VTDEC) and IBM.

Outline of Today's Proposal

    The information presented in this preamble is organized as follows:

I. Authority
II. Overview of Project XL
III. Overview of the IBM Vermont XL Pilot Project
    A. To Which Facilities Will the Proposed Rule Apply?
    B. What Problems Will the IBM Vermont XL Project Attempt to 
Address?
    1. Background on Hazardous Waste Identification
    2. Background on the F006 Hazardous Waste Listing
    3. Site-Specific Considerations at the IBM Vermont Facility
    C. What Solution is Proposed by the IBM Vermont XL Project?
    D. What Regulatory Changes Will Be Necessary to Implement this 
Project?
    1. Federal Regulatory Changes
    2. State Regulatory Changes
    E. Why is EPA Supporting this Approach to Removing a Waste From 
a Hazardous Waste Listing?
    F. How Have Various Stakeholders Been Involved in this Project?
    G. How Will this Project Result in Cost Savings and Paperwork 
Reduction?
    H. What Are the Terms of the IBM Vermont XL Project and How Will 
They Be Enforced?
    I. How Long Will this Project Last and When Will It Be Complete?
IV. Additional Information
    A. How to Request a Public Hearing
    B. How Does this Rule Comply With Executive Order 12866?
    C. Is a Regulatory Flexibility Analysis Required?
    D. Is an Information Collection Request Required for this 
Project Under the Paperwork Reduction Act?
    E. Does this Project Trigger the Requirements of the Unfunded 
Mandates Reform Act?
    F. RCRA & Hazardous and Solid Waste Amendments
    1. Applicability of Rules in Authorized States
    2. Effect on Vermont Authorization
    G. How Does this Rule Comply with Executive Order 13045: 
Protection of Children from Environmental Health Risks and Safety 
Risks?
    H. Does this Rule Comply with Executive Order 13132: Federalism?
    I. How Does this Rule Comply with Executive Order 13084: 
Consultation and Coordination with Indian Tribal Governments?
    J. Does this Rule Comply with the National Technology Transfer 
and Advancement Act?

I. Authority

    EPA is publishing this proposed regulation under the authority of 
sections 2002, 3001, 3002, 3003, 3006, 3010, and 7004 of the Solid 
Waste Disposal Act of 1970, as amended by the Resource Conservation and 
Recovery Act, as amended (42 U.S.C. 6912, 6921, 6922, 6923, 6926, 6930, 
6937, 6938, and 6974).

II. Overview of Project XL

    The draft Final Project Agreement (FPA) sets forth the intentions 
of EPA, VTDEC, and the IBM Essex Junction, VT facility with regard to a 
project developed under Project XL, an EPA initiative to allow 
regulated entities to achieve better environmental results with limited 
regulatory flexibility. The proposed regulation, along with the FPA 
(also available in today's Federal Register), would facilitate 
implementation of the project. Project XL--``eXcellence and 
Leadership''-- was announced on March 16, 1995, as a central part of 
the National Performance Review and the Agency's effort to reinvent 
environmental protection. See 60 FR 27282 (May 23, 1995). Project XL 
provides a limited number of private and public regulated entities an 
opportunity to develop their own pilot projects to request regulatory 
flexibility that will result in environmental protection that is 
superior to what would be achieved through compliance with current and 
reasonably-anticipated future regulations. These efforts are crucial to 
EPA's ability to test new strategies that reduce regulatory burden and 
promote economic growth while achieving better environmental and public 
health protection. EPA intends to evaluate the results of this and 
other Project XL projects to determine which specific elements of the 
project(s), if any, should be more broadly applied to other

[[Page 37741]]

regulated entities for the benefit of both the economy and the 
environment.
    Under Project XL, participants in four categories--facilities, 
industry sectors, governmental agencies and communities--are offered 
the flexibility to develop common sense, cost-effective strategies that 
will replace or modify specific regulatory requirements, on the 
condition that they produce and demonstrate superior environmental 
performance.
    The XL program is intended to encourage EPA to experiment with 
potentially promising regulatory approaches, both to assess whether 
they provide benefits at the specific facility affected, and whether 
they should be considered for wider application. Such pilot projects 
allow EPA to proceed more quickly than would be possible when 
undertaking changes on a nationwide basis. As part of this 
experimentation, EPA may try out approaches or legal interpretations 
that depart from, or are even inconsistent with, longstanding Agency 
practice, so long as those interpretations are within the broad range 
of discretion enjoyed by the Agency in interpreting the statutes that 
it implements. EPA may also modify rules, on a site-specific basis, 
that represent one of several possible policy approaches within a more 
general statutory directive, so long as the alternative being used is 
permissible under the statute.
    Adoption of such alternative approaches or interpretations in the 
context of a given XL project does not, however, signal EPA's 
willingness to adopt that interpretation as a general matter, or even 
in the context of other XL projects. It would be inconsistent with the 
forward-looking nature of these pilot projects to adopt such innovative 
approaches prematurely on a widespread basis without first determining 
whether they are viable in practice and successful in the particular 
projects that embody them. Furthermore, as EPA indicated in announcing 
the XL program, EPA expects to adopt only a limited number of carefully 
selected projects. These pilot projects are not intended to be a means 
for piecemeal revision of entire programs. Depending on the results in 
these projects, EPA may or may not be willing to consider adopting the 
alternative interpretation again, either generally or for other 
specific facilities.
    EPA believes that adopting alternative policy approaches and 
interpretations, on a limited, site-specific basis and in connection 
with a carefully selected pilot project, is consistent with the 
expectations of Congress about EPA's role in implementing the 
environmental statutes (provided that the Agency acts within the 
discretion allowed by the statute). Congress' recognition that there is 
a need for experimentation and research, as well as ongoing re-
evaluation of environmental programs, is reflected in a variety of 
statutory provisions, such as section 8001 of RCRA.

XL Criteria

    To participate in Project XL, applicants must develop alternative 
environmental performance objectives pursuant to eight criteria: 
Superior environmental performance; cost savings and paperwork 
reduction; local stakeholder involvement and support; test of an 
innovative strategy; transferability; feasibility; identification of 
monitoring, reporting and evaluation methods; and avoidance of shifting 
risk burden. The XL projects must have the full support of the affected 
Federal, State, local and tribal agencies to be selected.
    For more information about the XL criteria, readers should refer to 
the two descriptive documents published in the Federal Register (60 FR 
27282, May 23, 1995 and 62 FR 19872, April 23, 1997), and the December 
1, 1995 ``Principles for Development of Project XL Final Project 
Agreements'' document. For further discussion as to how the IBM Vermont 
XL project addresses the XL criteria, readers should refer to the draft 
Final Project Agreement available from the EPA RCRA docket, the U.S. 
EPA New England library, or the Project XL web page (see ADDRESSES 
section of today's preamble).

XL Program Phases

    The Project XL program is compartmentalized into four basic 
developmental phases: The initial pre-proposal phase where the project 
sponsor comes up with an innovative concept that they would like EPA to 
consider as an XL pilot project; the second phase where the project 
sponsor works with EPA and interested stakeholders in developing an XL 
proposal; the third phase where EPA, local regulatory agencies, and 
other interested stakeholders review the XL proposal; and the fourth 
phase where the project sponsor works with EPA, local regulatory 
agencies, and interested stakeholders in developing a Final Project 
Agreement and legal mechanism. After promulgation of the final rule (or 
other legal mechanism) for the XL pilot, and after the Final Project 
Agreement has been signed by all designated parties, the XL pilot 
project proceeds onto implementation and evaluation.

Final Project Agreement

    The Final Project Agreement (FPA) is a written voluntary agreement 
between the project sponsor and regulatory agencies. The draft FPA 
contains a detailed description of the proposed pilot project. It 
addresses the eight Project XL criteria, and the expectation of the 
Agency that the XL project will meet those criteria. The draft FPA 
identifies performance goals and indicators that the project is 
yielding the expected environmental benefits, and specifically 
addresses the manner in which the project is expected to produce 
superior environmental benefits. The draft FPA also discusses the 
administration of the FPA, including dispute resolution and 
termination. The draft FPA for this XL project is available for review 
in the docket for today's action, and also is available on the world 
wide web at http://www.epa.gov/projectxl/.

III. Overview of the IBM Vermont XL Pilot Project

    EPA is today requesting comments on the draft Final Project 
Agreement (FPA) and proposed rule to implement key provisions of this 
Project XL initiative. Today's proposed rule would facilitate 
implementation of the draft FPA (the document that embodies EPA's 
intent to implement this project) that has been developed by EPA, the 
Vermont Department of Environmental Conservation (VTDEC), the IBM Essex 
Junction, VT facility, and other stakeholders. After comments on the 
draft FPA and proposed rule have been considered, EPA, VTDEC, and IBM 
expect to sign a final FPA. Today's proposed rule, when finalized, 
would not be effective in Vermont until the State has made conforming 
changes to its hazardous waste program.

A. To Which Facilities Will the Proposed Rule Apply?

    This proposed rule would apply only to the IBM Essex Junction, VT 
facility. Further, the regulatory modification being proposed only 
affects the copper metallization plating process (and the wastes 
generated by that process) that is the focus of this XL project; wastes 
resulting from any other operations at the facility are not affected by 
this proposed rule (or the final rule, when finalized).

B. What Problems Will the IBM Vermont XL Project Attempt To Address?

    IBM does not believe the innovative copper metallization process it 
uses should be included among those electroplating operations that 
result in a wastewater treatment sludge that is

[[Page 37742]]

specifically listed as a hazardous waste (F006), and that the 
regulatory controls (with associated increases in costs) provide no 
benefit to the environment.
1. Background on Hazardous Waste Identification
    Under the current RCRA regulatory framework, the generator of a 
waste is responsible for determining whether the waste is hazardous 
(see 40 CFR 262.11). There are two ways that a waste is determined to 
be hazardous; either the waste exhibits a characteristic of a hazardous 
waste as defined in 40 CFR 261.21, 261.22, 261.23, and 261.24, or the 
Agency has identified and specifically listed it as a hazardous waste 
in 40 CFR 261.31, 261.32, and 261.33. The wastewater treatment sludge 
that is the focus of this XL project typically does not exhibit a 
characteristic of hazardous waste; however, it does meet the narrative 
listing description for F006, generally described as wastewater 
treatment sludge from electroplating operations. In promulgating the 
hazardous waste listings, EPA presented the basis for the listings in 
40 CFR part 261, appendix VII (e.g., the basis for the F006 listing is 
the presence of cadmium, hexavalent chromium, nickel, and cyanide 
(complexed) in high enough concentrations to present a risk to human 
health and the environment if the waste is mismanaged). However, the 
hazardous waste listings are implemented based on their narrative 
descriptions, not by a waste-specific assessment of the hazardous 
constituents the wastes contain (such an assessment is how the 
``toxicity characteristic'' is implemented pursuant to 40 CFR 261.24). 
To address those wastes that meet the narrative description of a listed 
hazardous waste but which the generator believes are nonhazardous, RCRA 
regulations provide a mechanism for the generator to petition the 
Agency for a determination that the wastes generated at their facility 
should not be regulated as hazardous (i.e., a ``delisting'' pursuant to 
40 CFR 260.22).
2. Background on the F006 Hazardous Waste Listing
    On May 19, 1980, EPA promulgated the F006 hazardous waste listing, 
thereby designating wastewater treatment sludges from electroplating 
operations to be a RCRA hazardous waste (see 45 FR 33084). This 
wastestream is typically generated through the chemical treatment 
(e.g., lime precipitation) of wastewaters generated by plating 
operations to precipitate out certain toxic metals. These wastewaters 
are typically made up of spent plating/coating solutions and 
rinsewaters (from the rinsing of parts after being plated). As 
discussed in more detail in the background document supporting the 
listing of electroplating wastewater treatment sludge (F006), 
Electroplating and Metal Finishing Operations (pages 105-143) 
(available in the docket for this proposal), the Agency noted that 
while there are many various plating processes covered by the listing, 
they all generally involve hazardous constituents of concern at 
concentration levels requiring regulatory oversight to ensure that the 
management and disposal of such sludges will not result in damages to 
the environment or otherwise present a risk to human health and the 
environment. The metal constituents found to be commonly used in 
electroplating operations include cadmium, lead, chromium (in 
hexavalent form), copper, nickel, zinc, gold and silver. Cyanides, 
strong acids and strong bases are also used extensively in the general 
types of plating operations intended to be included in the listing 
description. As stated earlier, the specific constituents of concern 
cited as the basis for listing such wastewater treatment sludges as 
hazardous wastes were cadmium, hexavalent chromium, nickel, and cyanide 
(complexed) (see 40 CFR part 261, appendix VII).
    While the actual composition of the electroplating-generated 
wastewater treatment sludges may vary due to the specific sequence of 
processing operations (commonly, more than one processing step is 
involved in a plating operation), in general, the sludges would be 
expected to contain significant concentrations of toxic metals, and 
possibly complexed cyanides in high concentrations if the cyanides are 
not properly isolated in the wastewater treatment process. Thus, the 
approach to this hazardous waste listing was one where the constituents 
typically used in the ``up-stream'' production process were, in part, 
the basis of the hazardous waste listing applicable to the residuals 
from wastewater treatment (typically alkaline precipitation of the 
heavy metals).
    The Agency noted in the May 19, 1980 rulemaking that several 
plating operations were found to not contain significant concentrations 
of toxic metals or cyanides, such that the sludges resulting from the 
treatment of the wastewaters resulting from such operations would not 
be expected to pose a risk to human health and the environment. These 
operations were accordingly identified and specifically excluded from 
the F006 listing description: (1) Sulfuric acid anodizing of aluminum, 
(2) tin plating on carbon steel, (3) zinc plating (segregated basis) on 
carbon steel, (4) aluminum or zinc-aluminum plating on carbon steel, 
(5) cleaning/stripping associated with tin, zinc and aluminum plating 
on carbon steel, and (6) chemical etching and milling of aluminum. (see 
40 CFR 261.31).
    Accordingly, the chemical make-up of the materials used in the 
plating operation was a major consideration in whether the wastewater 
treatment sludge would be designated a hazardous waste. Other factors 
that may impact the concentration levels of hazardous constituents in 
the wastewater treatment sludge are the type and shape of the article 
being plated, how much of the plating solution is carried over into the 
rinsewater, and the actual plating process being used.
3. Site-Specific Considerations at the IBM Vermont Facility
    Since the IBM facility has many complicated manufacturing 
processes, a review of the basic steps in semiconductor manufacturing 
relevant to the metallization process which is the subject of this XL 
project may be useful. In general, the surface of a silicon wafer is 
cleaned and passivated (i.e., coated to provide an insulating layer) 
with a very thin silicon oxide layer. An organic photoresist is applied 
to the wafer and a circuit pattern is exposed onto the resist by 
shining light onto the wafer through a mask. The exposed photoresist is 
washed away, while the remainder is hardened to protect the insulating 
layer. After this is completed, the wafer is treated with inorganic 
liquids and gases to create the doped circuits which provide the 
semiconductor function. The hardened resist is then removed with 
organic solvents. At certain points in the process, metallization 
techniques are used to electronically connect the stacked layers of the 
semiconductor device. (The copper metallization process which is the 
basis for this XL project serves this purpose.) Wafer cleaning and 
rinsing steps, using mixtures of inorganic acids, oxidizers, and 
deionized water, occur after many of the process steps. This process 
cycle is repeated until a fully functional memory or logic device has 
been produced. After the circuits are built on the wafer, minute 
amounts of metal are deposited onto the wafer to produce the 
connections which marry the semiconductor to a module or circuit board 
for use in a computer. Finally, the wafer is sliced into individual 
chips for

[[Page 37743]]

testing and placement onto substrates or modules for use in computer 
systems.
    The new copper metallization process IBM has introduced, which is 
the subject of this XL project, serves to provide the interconnection 
of the device circuits, electronically connecting the stacked layers of 
the semiconductor device. In designing the process, IBM worked with the 
manufacturers of the plating solutions and the manufacturer of the 
plating tool (which holds the wafer) to minimize waste and increase 
efficiency. The metallization process uses this specialized tool to 
bring only one side of the wafer into contact with the copper plating 
solution and applies an electrical current to plate the copper onto the 
wafer surface. Once the metallization process is complete, the wafer is 
rinsed with sulfuric acid over the plating bath to keep as much plating 
solution as possible in the bath (thus minimizing the amount of plating 
solution that is carried over into the rinsewaters). After the sulfuric 
acid rinse, the wafer is then rinsed with deionized water, and 
deionized water and sulfuric acid, in a pre-defined sequence, with the 
resulting rinsewaters being sent through the facility's wastewater 
treatment system.
    For each wafer produced, approximately 3.5 grams of plating 
solution (containing approximately 0.065 grams of copper) is carried 
over to the rinsewaters. The volume of water used in the rinsing ranges 
from 0.5 to 0.7 gallons per wafer. Present projections show that copper 
mass and rinsewater volume will increase from approximately 110 grams/
day and 1000-2000 gallons/day, respectively in the second quarter of 
1999 to 180 grams/day and 2000-3000 gallons/day when the process is 
fully deployed in 2002.\1\
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    \1\ Prior to the copper electroplating operation, a thin layer 
of copper is applied to each wafer by vapor deposition. This very 
thin layer serves as a ``seed'' site for the deposition of the 
electroplated copper. A scheduled change (not related to this XL 
project) in the process for depositing the seed layer will result in 
additional copper being inadvertently deposited to the outermost 
edge of the wafer as a result of a change in the way the wafer is 
held in the tool.
    Due to this change in the seed layer process, it will be 
necessary for future copper plating tools to remove the copper from 
the outer three millimeters of the wafer edge following the plating 
step to prepare the wafer for future processing. The copper on the 
edge is removed using an acid spray, in a process step termed ``edge 
bead removal.'' This will add 0.77 grams/day of copper to the 
wastewater stream, representing 5-10% of the load generated by the 
plating wastewaters and 0.5-1% of the load generated by the total 
copper process.
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    Also, the plating unit includes a 40-gallon reservoir for the 
plating solution that constantly filters and regenerates the solution. 
The goal in designing and operating this reservoir is to achieve an 
infinite bath life for the solution. However, it is currently necessary 
to replace a portion of the used plating solution in the reservoir with 
new solution. Currently, IBM drums the spent plating solution from the 
reservoir and sends the material for appropriate off-site management. 
IBM does not currently, nor plan to in the future, send the spent 
plating solution from the reservoir through the wastewater treatment 
system. Thus, the only plating solution that is or will be sent through 
the facility's wastewater treatment system is the relatively small 
amount that is carried over to the rinsewaters.
    According to tests conducted by IBM, the plating solution currently 
being used by the facility does not contain any of the hazardous metal 
constituents and cyanides which were the focus of the original 
hazardous waste listing for wastewater treatment sludges from 
electroplating operations (and thus, these constituents would not be 
expected to be in the wastewater treatment sludge unless they are 
introduced from some other production process).
    IBM reports other significant environmental benefits of converting 
to the copper metallization process that should be considered. The 
copper metallization process replaces an aluminum chemical vapor 
deposition process that required the vaporization of aluminum for 
deposit on the wafer. The use of the vapor deposition process entailed 
cleaning steps that used perfluorinated compounds (PFCs), which are 
global warming gases. By replacing a majority of the aluminum 
connections with copper, a significant reduction in global warming 
gases will be realized simply by minimizing the number of cleaning 
steps that use PFCs. It should also be noted that while such vapor 
deposition processes (and subsequent cleaning steps) are still required 
in other aspects of the semiconductor manufacturing process, IBM has 
developed an alternative cleaning method that uses dilute nitrogen 
trifluoride (NF<INF>3</INF>) instead of PFCs, wherever appropriate. 
NF<INF>3</INF> has significantly less impact on global warming than 
PFCs.\2\ The Agency recognizes this significant environmental benefit 
although it is not closely associated with the regulatory flexibility 
being sought by IBM.
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    \2\ There are a few cleaning processes at the facility where 
dilute NF<INF>3</INF> is an ineffective substitute for the PFC. 
However, for those operations, IBM has substituted a much more 
dilute PFC than was originally used, still achieving reductions in 
the global warming gas emissions.
---------------------------------------------------------------------------

    IBM also reports that the new copper metallization process is much 
more energy efficient (30 to 40% less energy) than the aluminum 
chemical vapor deposition process it replaces. Similarly, the 
semiconductor chip produced by the copper metallization process is 
approximately 25% more energy-efficient than the chip it replaces. IBM 
expects this type of metallization process (or processes very similar) 
to become more common in the semiconductor manufacturing industry.
    The aluminum chemical vapor deposition process which the copper 
metallization process replaces was dry and generated no wastewater or 
sludge that was subject to RCRA. From the time the copper metallization 
process was first introduced in 1996 until April of 1998, the copper 
metallization rinsewaters were collected and drummed for off-site 
disposal, keeping these wastewaters separate from the on-site 
wastewater treatment system. However, beginning in May 1998, the volume 
of rinsewater generated (approximately 250 gallons/day) became large 
enough to make it necessary to introduce the plating rinsewaters into 
the wastewater treatment system by commingling them with other 
wastewater streams generated on-site.
    Even though the contribution of wastewaters from the copper 
metallization process to the total volume of wastewater being treated 
to generate the sludge is minimal (the volume of rinsewaters from the 
plating operation expected to be generated when the plating process is 
at full production is 1600 gallons/day, compared with an estimated 
5,000,000 gallons/day volume of other on-site wastewaters), the sludge 
generated by the treatment of the commingled wastewaters is regulated 
as F006 because it meets the narrative listing description (i.e., 
wastewater treatment sludges from an electroplating operation).
    Consequently, IBM's reported annual hazardous waste generation 
increased from 2.14 million pounds to 5.78 million pounds (1999 totals) 
and their waste management costs increased by $3,500 per year. 
Regarding IBM's waste management costs, the State of Vermont has 
deferred the hazardous waste tax that would normally apply to the 
generation of an F006 waste (approximately $225,000/year).\3\
---------------------------------------------------------------------------

    \3\ VTDEC accepted IBM's position that the F006 listing was 
inappropriately bringing the copper metallization waste stream into 
the hazardous waste system since the process did not contain the 
constituents for which F006 was listed. VTDEC has the discretion to 
waive the hazardous waste tax ``for cause shown.'' 32 VSA 10102(2). 
VTDEC took the position that the constituents for which F006 was 
listed took primacy over the narrative listing description that was 
intended to further describe wastes within the boundaries of the 
basis for listing, i.e. the constituents of concern. The 
constituents described the potential for harm to human health and 
the environment while the narrative listing description described 
the processes, known at the time, that were likely to contain the 
constituents.

---------------------------------------------------------------------------

[[Page 37744]]

    While the increased waste management costs (as well as the 
associated recordkeeping and paperwork burdens) are relatively 
insignificant to the facility, they nevertheless represent increased 
costs for no net environmental benefit.

C. What Solution Is Proposed by the IBM Vermont XL Project?

    IBM's position is that they have adopted a more energy- and 
resource-efficient metallization process that employs a plating 
solution that is significantly different from the plating solutions 
used when the Agency promulgated the F006 listing, and therefore should 
not be subject to the F006 listing. This process has been specifically 
designed to minimize the use of the plating solution while maximizing 
the use of the copper metal in the solution, and minimizing the amount 
of solution that is carried over into the rinsewater. Because this 
metallization process does not contribute hazardous constituents to the 
wastewater treatment sludge, IBM is seeking to have its copper 
metallization process exempted from the F006 hazardous waste listing. 
Therefore, rather than pursue a delisting of the wastewater treatment 
sludge under 40 CFR 260.22, IBM has opted to work with the Agency, 
VTDEC, and interested stakeholders to develop and implement a pilot 
project under Project XL that will evaluate whether the copper 
metallization process should be included in the plating operations that 
result in F006 listed hazardous wastes. The Agency agrees with IBM that 
this XL project has a somewhat different aspect to it (i.e., the focus 
on the innovative production process that generates the wastewaters 
that, in turn, are treated to generate the listed sludge), such that 
the delisting approach is not the most suitable. A delisting approach 
would look strictly at the waste being delisted (as well as how it is 
managed), which in this situation is the result of treating large 
volumes of wastewaters from a variety of production processes 
(including wastewaters contributed by the innovative copper 
metallization process) and would not adequately reflect the specific 
environmental impacts associated with the innovative production 
process. It is the innovative production process that causes the 
wastewater treatment sludge to be designated a hazardous waste.

D. What Regulatory Changes Will Be Necessary To Implement This Project?

    To implement this XL project, the Agency is proposing in today's 
notice to provide a site-specific exemption in 40 CFR 261.4(b) (i.e., 
``Solid wastes which are not hazardous wastes'') for the copper 
metallization process at the IBM Vermont facility from the F006 
hazardous waste listing description. The Agency considered a 
modification to the F006 listing description in the table in 40 CFR 
261.31(a), adding the copper metallization process at the IBM Vermont 
facility to the list of plating operations that are not intended to be 
subject to the listing. However, because the exemption will have a 
number of conditions that the IBM facility must follow to ensure that 
this XL project is protective of human health and the environment 
throughout the term of the project and to provide the information and 
data the Agency will use to consider whether the regulatory exemption 
should be incorporated into the national program, the Agency prefers 
placing the exemption language in 40 CFR 261.4(b). Regardless of where 
EPA chooses to place the exemption language in the regulations 
(261.31(a) or 261.4(b)), the legal effect of the exemption will be the 
same. EPA expects that should the exemption of the copper metallization 
process from the F006 listing be incorporated into the national 
program, EPA would then modify the listing description in 40 CFR 
261.31(a).

E. Why Is EPA Supporting This Approach To Removing a Waste From a 
Hazardous Waste Listing?

    The Agency agrees with IBM that this XL project has merit and has 
the potential to yield significant environmental benefits should this 
exemption be adopted on a national basis. Project XL offers the 
opportunity for the Agency to test its belief that this innovative 
process should be encouraged as one that is environmentally superior to 
existing technologies and to consider the appropriate regulatory status 
of the wastes from this technology before it is adopted by similar 
manufacturing facilities.
    Further, this XL project offers EPA the opportunity to test a 
different approach to re-evaluating whether a specific wastestream is 
appropriately subject to regulatory controls as a listed waste. The 
existing mechanism for removing a waste from a listing on a site-
specific basis is through a ``delisting'' petition under 40 CFR 260.22. 
However, the delisting approach is not the most suitable for the 
situation at the IBM Vermont facility because the scope of the listing 
itself is at issue. If IBM submitted a delisting petition, EPA would 
evaluate the hazardous nature of the entire wastewater treatment sludge 
(which is the wastestream that actually carries the F006 listing) 
rather than only that portion which is contributed by the copper 
metallization process. EPA generally prefers a delisting approach in 
most circumstances (it is, generally, a better approach for determining 
the hazardous nature of the actual waste material and whether the waste 
should be removed from the hazardous waste management program). In this 
instance, however, because the Agency wants to test whether IBM's 
copper metallization process should be included within the scope of the 
F006 listing, the Agency believes an evaluation of the ``production 
side'' of the sequence of operations that results in the wastewater 
treatment sludge would be more useful. Specifically, because the 
wastewater treatment sludge is considered hazardous due to an 
``upstream'' production unit meeting the narrative description of an 
electroplating operation, the Agency believes it is more appropriate to 
evaluate the upstream production unit to determine whether the 
hazardous waste listing on the ``downstream'' wastewater treatment 
sludge is warranted. Therefore, the Agency will focus on the key 
parameters on the production side (in this case, the innovative design 
and operation of the copper metallization process) to make a 
determination of the regulatory status of the materials generated on 
the waste management side (in this case, the wastewater treatment 
sludge). This XL project therefore represents an opportunity for EPA to 
explore a different approach to determining whether a waste (in this 
case, one resulting from an innovative process) should continue to be 
subject to a hazardous waste listing. In other words, this approach may 
be considered another ``tool'' for the Agency to use in ``fine tuning'' 
the hazardous waste listings so that the narrative description of a 
listed waste appropriately delineates between those wastes that pose a 
risk to human health and the environment from those wastes (which 
arguably are generated by very similar processes) that do not pose such 
a risk. If, in fact, the absence of hazardous constituents of concern 
in the plating solution is determinative of whether the wastewater 
treatment sludge is

[[Page 37745]]

hazardous (or whether any ``hazard'' in the sludge stems from the 
plating operation), this may become the key determining factor in 
similar requests for regulatory exemptions. Alternatively, if the 
Agency determines that the amount of plating solution that is carried 
over into the rinsewater (with focus on the shape of the parts being 
plated as well as the actual plating process) is the determining 
factor, this variable may be accounted for in future rulemakings that 
address the F006 hazardous waste listing.
    Because this is an innovative and highly efficient plating 
technology that also does not use the hazardous constituents common in 
most electroplating operations, EPA agrees with IBM's expectation that 
more semiconductor manufacturing facilities will seek to adopt this 
process (or ones very similar). The Agency agrees that if there is no 
adverse effect on the wastewater treatment sludge from the use of this 
metallization process, then regulating the sludge as a hazardous waste 
based solely on the fact that the metallization process continues to 
meet the narrative listing description of an electroplating operation 
may be imposing regulatory controls unnecessarily.
    Further, the Agency believes that this innovative metallization 
process is environmentally superior to the old process it replaces, 
i.e., the aluminum chemical vapor deposition process. Not only is the 
metallization process 30 to 40% more energy efficient than the old 
process and the chips produced are approximately 25% more energy 
efficient, there are also environmental benefits realized by 
discontinuing the use of the old process. While the metallization 
process generates a wastewater stream (and subsequent sludge from the 
treatment of that wastewater) that was not inherent to the aluminum 
chemical vapor deposition process, the old vapor deposition process 
entailed a cleaning step that used perfluorinated compounds (PFCs), 
which are global warming gases. The aluminum chemical vapor deposition 
process basically uses vaporized metal (in this case, aluminum) that is 
then deposited on the wafer, all of which occurs in ``chambers.'' The 
vaporized metal also gets deposited on the insides of these chambers, 
which must periodically be cleaned of this metal coating. Thus, by 
replacing the old process with the metallization process, 10,000 metric 
tons of carbon equivalent (MTCE) of global warming gases will not be 
emitted to the air. However, it should be noted that, due to the nature 
of the materials and components involved in the semiconductor 
manufacturing process, the vapor deposition process cannot be 
completely eliminated from the production line, nor can the subsequent 
cleaning steps. (However, the number of cleaning steps requiring the 
use of PFCs has been significantly reduced and will continue to be 
reduced by the conversion to the innovative copper metallization 
process. The vapor deposition chambers, therefore, are a major focus in 
measuring the reduction in global warming gases.) Nevertheless, the 
Agency believes that the use of the innovative copper metallization 
process should be encouraged where possible. (Also, as stated earlier, 
IBM has developed an alternative cleaning process that uses dilute 
nitrogen trifluoride (NF<INF>3</INF>) as a replacement for the PFCs. 
The dilute NF<INF>3</INF> is reported to have a much lower impact on 
global warming than the PFCs that would otherwise be used.)
    From a public policy standpoint, it would not serve to encourage 
manufacturers to employ less-hazardous or more environmentally friendly 
and innovative production processes and ingredients in manufacturing 
operations if the Agency is unwilling to revisit existing hazardous 
waste listings to determine if the wastes resulting from such 
innovative process changes still warrant a hazardous waste listing. 
This XL project offers the Agency the opportunity to consider 
proactively the appropriate regulatory status of the wastewater 
treatment sludges generated from an innovative production process 
before it is widely used and commonplace and may serve as a precedent 
for other listed wastestreams.
    Additionally, the Agency believes that to the extent the 
implementation of the hazardous waste regulations, including the actual 
requirements as well as the costs and administrative burdens, are 
directly related to the hazards being posed by the waste being 
regulated, this will improve the overall implementation of the program 
and compliance with the regulations. Just as it is important to ensure 
that those wastes that can pose significant risk to human health and 
the environment are properly controlled and managed, it is also 
important to not needlessly subject wastes that do not pose such risks 
to the same type of regulatory oversight.

F. How Have Various Stakeholders Been Involved in This Project?

    IBM has established an appropriate stakeholder group to develop the 
Final Project Agreement for this XL pilot project and to evaluate IBM's 
plan and progress in implementing the project. IBM has solicited input 
on this project from a wide range of stakeholders including local and 
national environmental groups, neighborhood associations, and industry 
trade associations. Stakeholders have been notified of this project by 
direct mail, telephone, and notification in the local press.
    In addition, IBM has conducted a series of meetings with select 
stakeholders who have agreed to serve as commenters for this project. 
They have been briefed on the proposal, and are supportive of the 
project as described. The State of Vermont also supports the project 
and is a Project Signatory to the Agreement. Stakeholder meetings were 
held at the IBM facility on February 17 and March 24, 2000.
    IBM has kept an open dialogue with interested stakeholders since 
the project's inception and will continue to involve any interested 
stakeholders in the project's development. In addition, EPA and IBM 
will make all project-related documents and events publically 
accessible through announcements, EPA's web site and public dockets.

G. How Will This Project Result in Cost Savings and Paperwork 
Reduction?

    As stated earlier, introducing the rinsewaters from the 
metallization process into the wastewater treatment system has caused 
the entire volume of wastewater treatment sludge to be defined as a 
hazardous waste, increasing the facility's waste management costs by 
approximately $3,500/year. Removing the hazardous waste designation 
will eliminate this expenditure. Also, as discussed earlier, the State 
of Vermont has waived the waste tax that would otherwise apply to IBM's 
generation of F006 waste (approximately $225,000/year). (Note that the 
State of Vermont is not authorized to do hazardous waste delistings 
which could change the regulatory status of the sludge from a listed 
hazardous waste to a nonhazardous waste; however, the State has more 
flexibility in assessing hazardous waste generation taxes. Had the 
State not granted this tax waiver, the cost savings associated with 
this specific XL project would be considered significant.) Finally, IBM 
expects to see cost savings of $100,000 to $200,000 per year when the 
conversion to the copper metallization process has been fully 
implemented. The sources of these cost savings include reduced material 
costs (e.g., reduction in the use and resultant purchase of PFCs) and 
reduced energy expenditures.
    Because the IBM Vermont facility will continue to be regulated as a 
Large Quantity Generator due to the volume of hazardous wastes 
generated at other

[[Page 37746]]

parts of the facility, and because there is no State hazardous waste 
tax being applied, the actual reduction in paperwork and cost savings 
related to waste management are not significant. The wastewater 
treatment sludge will no longer be considered a hazardous waste (unless 
the sludge otherwise exhibits a characteristic of hazardous waste) and 
so will not have to be counted in the facility's annual report. While 
this reduction in reported hazardous waste generated will certainly 
improve the facility's public image, it will save only a little time 
and money in preparing the annual report for the hazardous wastes 
generated by other facility operations.
    There are also cost savings realized by not having to use a 
hazardous waste transporter or hazardous waste manifest to ship the 
sludge off-site for further management. Also, because the sludges are 
currently shipped to Canada for treatment and disposal, IBM must 
currently file an annual ``Request for Export of Hazardous Waste'' with 
Canada, requiring 2 hours of engineering time, as well as several hours 
of phone calls and follow-up to ensure the application is expeditiously 
processed. Such an application and expenditure of resources is not 
needed if the sludges being shipped to Canada are not hazardous wastes.
    EPA, as well as VTDEC, will also benefit from some paperwork 
reduction and cost savings by not having to process and track the 
manifests and export documents that will otherwise have to be processed 
without this XL project.
    In considering the cost savings and paperwork reduction associated 
with this XL project, it is important to consider the potential impacts 
if this pilot project proves successful and the regulatory flexibility 
(i.e., the exemption of the copper metallization unit from the listing 
description of F006 wastes) is promulgated on a national basis. The 
conversion to the copper metallization process represents significant 
operational cost savings for IBM. As a result, on a national level the 
overall cost (and paperwork) reduction that would be realized may be 
quite significant, assuming this innovative technology (or a similar 
one) is adopted by more semiconductor manufacturers. While there is 
little question that a national exemption patterned after this site-
specific exemption would result in cost and paperwork reductions, 
because of the variability in how States implement their waste taxes, 
or other mechanisms for raising revenues based on the hazardous wastes 
generated in the State, it is difficult to estimate a projected savings 
on such taxes on a national level.

H. What Are the Terms of the IBM Vermont XL Project and How Will They 
Be Enforced?

    As stated earlier, to allow for the implementation of the XL pilot 
project, EPA is today proposing to modify the current regulatory 
framework in 40 CFR 261.4(b) to provide a site-specific exemption for 
IBM's copper metallization process from the narrative description for 
F006 listed hazardous waste (see 40 CFR 261.31(a)), thus removing the 
F006 listing designation from the sludges generated by the treatment of 
the wastewaters generated by the copper metallization process. VTDEC 
likewise intends to modify its State hazardous waste program to allow 
for the same removal of the F006 listing designation from the 
wastewater treatment sludge. It should be noted that the Agency intends 
that the exemption, once finalized, will apply to all the wastewater 
treatment sludge resulting from the treatment of the copper 
metallization rinsewaters at the site, including those sludges that are 
in the process of being generated, sludges that result from rinsewaters 
already in the wastewater treatment system, and sludges that have been 
removed from the wastewater treatment system and are being stored 
pending off-site transportation.
    Through the development of the draft Final Project Agreement (FPA), 
IBM has agreed to comply with several key criteria as conditions for 
this exemption, which will be included in the regulatory text of the 
exemption being proposed. These conditions are focused on proving the 
environmental benefits of removing the F006 listing from the wastewater 
treatment sludges (or the inappropriateness of designating these 
wastewater treatment sludges F006 hazardous waste) and to gather the 
data and other information that would allow the Agency to make a 
determination regarding the possible future adoption of this site-
specific exemption as a nationwide generic exemption. IBM has also 
agreed to commit to a good faith effort to achieve several goals 
related to superior environmental performance. (Note that while 
achieving these goals is not being proposed as a condition of the 
exemption due to their uncertain nature, an evaluation of the success 
of this XL pilot project will certainly be influenced by IBM's success 
in achieving their stated goals, as well as the effort expended to 
achieve the goals.)
    As conditions of the site-specific exemption, IBM must report on 
the following:
    (1) IBM must analyze the plating bath and rinsewaters generated 
from the copper metallization process. The analysis must be conducted 
on samples that are representative of rinsewaters and plating baths 
associated with all the tools that are converted to the copper 
metallization process and will measure for the presence of volatiles, 
semi-volatiles, and metals (using the methods specified in 40 CFR part 
264, appendix IX) in both the plating bath and rinsewaters. IBM must 
collect, analyze and submit this data twice a year (by January 15 and 
July 15 of each year).
    (2) In addition, IBM must report on the status of the greenhouse 
gas emission reduction project at the facility. This will include 
greenhouse gas reductions achieved from the conversion to the copper 
metallization process and IBM's additional voluntary initiative to 
reduce greenhouse gas emissions from its other chamber cleaning 
processes. IBM will track usage of C<INF>2</INF>F<INF>6</INF>, the 
primary PFC used in the chamber cleaning operation, and estimate the 
reduction in PFC emissions based on the reduction in chemical usage. 
Likewise, IBM will provide similar data for the chemicals that replace 
the C<INF>2</INF>F<INF>6</INF>, specifically, dilute nitrogen 
trifluoride (NF<INF>3</INF>), and dilute C<INF>2</INF>F<INF>6</INF>, 
including the quantity of NF<INF>3</INF> used in the cleaning process, 
and the carbon equivalent potential of the NF<INF>3</INF> to calculate 
the global warming impact of the converted processes. IBM will report 
on the number of chambers converted during the reporting period and 
remaining to be converted to achieve the site global warming gas 
emission reduction goal along with an update of the calculated 
greenhouse gas emission reductions for the facility, both in terms of 
total mass emitted and mass emitted normalized to production. 
Submissions of these data are likewise due twice a year, by January 15 
and July 15 in conjunction with the plating bath and rinsewater 
analyses.
    In addition, IBM commits to monitor copper concentrations in its 
wastewater effluent for conformance with their current NPDES (National 
Pollutant Discharge Elimination System) permit. IBM's stated goal is to 
maintain copper concentrations in the effluent discharge of less than 
40% of the discharge limit.

I. How Long Will This Project Last and When Will It Be Completed?

    This project will be in effect for five years from the date that 
the final rulemaking becomes effective (the latter of the EPA final 
rule or the VTDEC final rule) unless it is terminated earlier or 
extended by all Project Signatories (if the FPA is extended, the 
comments and

[[Page 37747]]

input of stakeholders will be sought and a Federal Register notice will 
be published). Any Project Signatory may terminate its participation in 
this project at any time in accordance with the procedures set forth in 
the FPA. The project will be completed at the conclusion of the five-
year anniversary of the final rulemaking or at a time earlier or later 
determined by the amount of information gathered to date and the 
interest of the parties involved.
    Upon completion of the project term, EPA and VTDEC commit to 
evaluating the project. If the project results indicate that it was a 
success, EPA will consider transferring the regulatory flexibility (or 
some similar flexibility) to the national RCRA program (through 
rulemaking procedures). Should the project results indicate that the 
project was not successful, EPA will promulgate a rule to remove the 
site-specific exemption. Absent any regulatory action on the part of 
the Agency, the implementing rule (i.e., the site-specific exemption) 
will remain in effect as long as IBM continues to meet its conditions 
(i.e., EPA and VTDEC intend to allow IBM to continue operating under 
the site-specific rule). However, as for any conditional exemption, if 
at any time, should IBM fail to meet the conditions of the site-
specific exemption, the exemption is not applicable. Also, the Agency 
may promulgate a rule to withdraw the exemption at any time, subject to 
the procedures agreed to in the Final Project Agreement (FPA), 
including, but not limited to, a substantial failure on the part of any 
Project Signatory to comply with the terms and conditions of the FPA or 
if the exemption becomes inconsistent with future statutory or 
regulatory requirements.

IV. Additional Information

A. How To Request a Public Hearing

    A public hearing will be held, if requested, to provide an 
opportunity for interested persons to make oral presentations regarding 
this regulation in accordance with 40 CFR part 25. Persons wishing to 
make an oral presentation on the site-specific rule to implement the 
IBM Vermont XL project should contact Mr. John Moskal or Mr. George 
Frantz of the EPA New England office, at the address given in the 
ADDRESSES section of this document. Any member of the public may file a 
written statement before the hearing, or after the hearing, to be 
received by EPA no later than June 30, 2000. Written statements should 
be sent to EPA at the addresses given in the ADDRESSES section of this 
document. If a public hearing is held, a verbatim transcript of the 
hearing, and written statements provided at the hearing will be 
available for inspection and copying during normal business hours at 
the EPA addresses for docket inspection given in the ADDRESSES section 
of this preamble.

B. How Does This Rule Comply With Executive Order 12866?

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety in State, local, or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs of the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Because the annualized cost of this final rule will be 
significantly less than $100 million and will not meet any of the other 
criteria specified in the Executive Order, it has been determined that 
this rule is not a ``significant regulatory action'' under the terms of 
Executive Order 12866, and is therefore not subject to OMB review.
    Executive Order 12866 also encourages agencies to provide a 
meaningful public comment period, and suggests that in most cases the 
comment period should be 60 days. However, in consideration of the very 
limited scope of today's rulemaking and the considerable public 
involvement in the development of the proposed Final Project Agreement, 
EPA considers 30 days to be sufficient in providing a meaningful public 
comment period for today's action.

C. Is a Regulatory Flexibility Analysis Required?

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and comment rulemaking 
requirements unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small not-for-profit 
enterprises, and small governmental jurisdictions. This rule will not 
have a significant impact on a substantial number of small entities 
because it only affects the IBM facility in Essex Junction, VT and it 
is not a small entity. Therefore, EPA certifies that this action will 
not have a significant economic impact on a substantial number of small 
entities.

D. Is an Information Collection Request Required for This Project Under 
the Paperwork Reduction Act?

    This action applies only to one facility, and therefore requires no 
information collection activities subject to the Paperwork Reduction 
Act, and therefore no information collection request (ICR) will be 
submitted to OMB for review in compliance with the Paperwork Reduction 
Act, 44 U.S.C. 3501, et seq.

E. Does This Project Trigger the Requirements of the Unfunded Mandates 
Reform Act?

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small

[[Page 37748]]

government agency plan. The plan must provide for notifying potentially 
affected small governments, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    As noted above, this rule is applicable only to one facility in 
Vermont. EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. EPA has also determined that this rule does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any one year. Thus, today's rule is not subject to 
the requirements of sections 202 and 205 of the UMRA.

F. RCRA & Hazardous and Solid Waste Amendments of 1984

1. Applicability of Rules in Authorized States
    Under section 3006 of RCRA, EPA may authorize qualified States to 
administer and enforce the RCRA program for hazardous waste within the 
State. (See 40 CFR part 271 for the standards and requirements for 
authorization.) States with final authorization administer their own 
hazardous waste programs in lieu of the Federal program. Following 
authorization, EPA retains enforcement authority under sections 3008, 
7003 and 3013 of RCRA.
    After authorization, Federal rules written under RCRA (non-HSWA), 
no longer apply in the authorized state except for those issued 
pursuant to the Hazardous and Solid Waste Act Amendments of 1984 
(HSWA). New Federal requirements imposed by those rules do not take 
effect in an authorized State until the State adopts the requirements 
as State law.
    In contrast, under section 3006(g) of RCRA, new requirements and 
prohibitions imposed by HSWA take effect in authorized States at the 
same time they take effect in nonauthorized States. EPA is directed to 
carry out HSWA requirements and prohibitions in authorized States until 
the State is granted authorization to do so.
2. Effect on Vermont Authorization
    Today's proposed rule, if finalized, will be promulgated pursuant 
to non-HSWA authority, rather than HSWA. Vermont has received authority 
to administer most of the RCRA program; thus, authorized provisions of 
the State's hazardous waste program are administered in lieu of the 
Federal program. Vermont has received authority to administer the 
regulations that specifically identify hazardous wastes by listing 
them. As a result, if today's proposed rule to modify the listing for 
F006 hazardous waste is finalized, it would not be effective in Vermont 
until the State adopts the modification. It is EPA's understanding that 
subsequent to the promulgation of this rule, Vermont intends to propose 
rules or other legal mechanisms to provide the exemption for the copper 
metallization process from the F006 listing description. EPA may not 
enforce these requirements until it approves the State requirements as 
a revision to the authorized State program.

G. How Does This Rule Comply With Executive Order 13045: Protection of 
Children From Environmental Health Risks and Safety Risks?

    The Executive Order 13045, ``Protection of Children from 
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23, 
1997) applies to any rule that: (1) Is determined to be ``economically 
significant,'' as defined under Executive Order 12866; and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children, and explain 
why the planned regulation is preferable to other potentially effective 
and reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule, as defined by Executive Order 12866, 
and because it does not involve decisions based on environmental health 
or safety risks.

H. Does This Rule Comply With Executive Order 13132: Federalism?

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the regulation. EPA may also not issue a regulation that has 
federalism implications and that preempts State law, unless the Agency 
consults with the State and local officials early in the process of 
developing the regulation.
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States. Or on the distribution 
of power and responsibilities among the various level of government, as 
specified in Executive Order 13132. The exemption outlined in today's 
proposed rule will not take effect unless Vermont chooses to adopt the 
rule or other legal implementing mechanism. Thus, the requirements of 
section 6 of the Executive Order do not apply to this rule. Although 
section 6 of Executive Order 13132 does not apply to this rule, EPA did 
fully coordinate and consult with the state and local officials in 
developing this rule.

I. How Does This Rule Comply With Executive Order 13084: Consultation 
and Coordination With Indian Tribal Governments?

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments to provide meaningful and timely input in the 
development of

[[Page 37749]]

regulatory policies on matters that significantly or uniquely affect 
their communities. Today's rule does not significantly or uniquely 
affect the communities of Indian tribal governments. There are no 
communities of Indian tribal governments located in the vicinity of the 
facility. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

J. Does This Rule Comply With the National Technology Transfer and 
Advancement Act?

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standard. This 
proposed rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards. 
EPA welcomes comments on this aspect of the proposed rulemaking and, 
specifically, invites the public to identify potentially-applicable 
voluntary consensus standards and to explain why such standards should 
be used in this regulation.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous materials, Recycling, Waste 
treatment and disposal.

    Dated: June 8, 2000.
 Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, part 261 of Chapter I of 
Title 40 of the Code of Federal Regulations is proposed to be amended 
as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.

    2. Section 261.4 is amended by adding paragraph (b)(16) to read as 
follows:


Sec. 261.4  Exclusions.

* * * * *
    (b) * * *
    (16) Sludges resulting from the treatment of wastewaters (not 
including spent plating solutions) generated by the copper 
metallization process at the International Business Machines 
Corporation (IBM) semiconductor manufacturing facility in Essex 
Junction, VT, are exempt from the F006 listing, provided that:
    (i) IBM provides the Agency with semi-annual reports (by January 15 
and July 15 of each year) detailing constituent analyses measuring the 
concentrations of volatiles, semi-volatiles, and metals using methods 
presented in part 264, Appendix IX of this chapter of both the plating 
solution utilized by, and the rinsewaters generated by, the copper 
metallization process;
    (ii) IBM provides the agency with semi-annual reports (by January 
15 and July 15 of each year), through the year 2004, or when IBM has 
achieved its facility wide goal of a 50% reduction in greenhouse gas 
emissions from a 1995 base year (when normalized to production), 
whichever is first, that contain the following:
    (A) Estimated greenhouse gas emissions, and estimated greenhouse 
gas emission reductions. Greenhouse gas emissions will be reported in 
terms of total mass emitted and mass emitted normalized to production; 
and
    (B) The number of chemical vapor deposition chambers used in the 
semiconductor manufacturing production line that have been converted to 
either low flow C<INF>2</INF>F<INF>6</INF> or NF<INF>3</INF> during the 
reporting period and the number of such chambers remaining to be 
converted to achieve the facility goal for global warming gas emission 
reductions.
    (iii) No significant changes are made to the copper metallization 
process such that any of the constituents listed in 40 CFR part 261, 
appendix VII as the basis for the F006 listing are introduced into the 
process.
* * * * *
[FR Doc. 00-15154 Filed 6-15-00; 8:45 am]
BILLING CODE 6560-50-P


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