Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules 30349

roles of the Federal and State

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that State laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA. Section 503(a)(7) requires that

State programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

pursuant to SMCRA.

National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C.

1292(d)) provides that a decision on a

proposed State regulatory program

provision does not constitute a major

Federal action within the meaning of

section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C.

4332(2)(C)). A determination has been

made that such decisions are

categorically excluded from the NEPA

process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

that is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule: (a) Does not have an annual

effect on the economy of $100 million;

(b) Will not cause a major increase in

costs or prices for consumers,

individual industries, geographic

regions, or Federal, State or local

governmental agencies; and (c) Does not

have significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S. based enterprises to compete

with foreign-based enterprises. This

determination is based upon the fact

that the State submittal, which is the

subject of this rule, is based upon

counterpart Federal regulations for

which an analysis was prepared and a

determination made that the Federal

regulation was not considered a major

rule.

Unfunded Mandates

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 21, 2001.

Brent Wahlquist,

Regional Director, Western Regional

Coordinating Center.

[FR Doc. 01–14227 Filed 6–5–01; 8:45 am]

BILLING CODE 4310–05–P

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.

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

30350 Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules

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 kerns.sam@epa.gov) and Ms.

Dobkowski-Joy can be reached at (212)

637–3676 (or

dobkowski.aleksandra@epa.gov).

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

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules 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 reevaluation 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 preproposal 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

30352 Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules

1Throughtout 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.

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, byproduct, 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.

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

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules 30353

2The 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.

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.

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.

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).

(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 semiannual 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).

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

30354 Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules

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.)

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 greaterthan-desirable concentration of

unwanted constituents (as determined

by the product specifications being

met), as well as to maximize the costeffectiveness 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)).

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules 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 nonhazardous 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 nonhazardous 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 nonhazardous 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

30356 Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules

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

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules 30357

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.

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 crosssection 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 offsite transportation.

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

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6Upon 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.

7The 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.

8The 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.

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.

(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.

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.

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

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules 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 nonapplicable 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 sitespecific 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-forprofit 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 costeffective 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

30360 Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules

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 nonHSWA 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 sitespecific 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

Federal Register / Vol. 66, No. 109 / Wednesday, June 6, 2001 / Proposed Rules 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:

§ 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

§ 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

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 25

[IB Docket 01–96; FCC 01–134]

Policies and Service Rules for the NonGeostationary Satellite Orbit, Fixed

Satellite Service in the Ku-Band

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: The Federal Communications

Commission (FCC) proposes to decide

the means for sharing among multiple

satellite network licensees in spectrum

recently designated for the nongeostationary satellite orbit, fixedsatellite service (NGSO FSS) in the

17.7–20.2 GHz and 27.5–31.3 GHz

frequency bands (the Ku-band). The

FCC’s Notice of Proposed Rulemaking

(NPRM) seeks comment on four possible

sharing options, and also seeks

comment on proposed blanket earth

station licensing for NGSO FSS in the

Ku-band, and seeks comment on

proposed service rules. The

Commission’s goals in opening this

satellite service in the Ku-band are to

promote competition through

opportunities for new entrants, to

expedite the authorization process, and

to provide incentives for prompt

commencement of service to the public

using state-of-the-art technology.

DATES: Comments may be filed on or

before July 6, 2001. Reply comments

may be filed on or before August 6,

2001. Comments on the proposed

information collections may be filed on

or before August 6, 2001.

ADDRESSES: Comments may be filed

using the Commission’s Electronic

Comment Filing System (ECFS) or by

paper copies. See SUPPLEMENTARY

INFORMATION for filing instructions,

formats and other information regarding

electronic filing; send paper copies to

Federal Communications Commission,

445 12th Street, SW., Washington, DC

20554. Comments regarding the request

for approval of the information

collection should be submitted to Judy

Boley at 445 12th Street, SW., Rm. 1–

C804, Washington, DC 20554 or via