Monday,

April
14,
2003
Part
VI
Environmental
Protection
Agency
40
CFR
Part
261
Project
XL
Site­
Specific
Rulemaking
for
the
IBM
Semiconductor
Manufacturing
Facility
in
Hopewell
Junction,
New
York;
Proposed
Rule
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Monday,
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14,
2003
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Proposed
Rules
ENVIRONMENTAL
PROTECTION
AGENCY
40
CFR
Part
261
[
FRL
 
7480
 
7]

RIN
2090
 
AA29
Project
XL
Site­
Specific
Rulemaking
for
the
IBM
Semiconductor
Manufacturing
Facility
in
Hopewell
Junction,
NY
AGENCY:
Environmental
Protection
Agency
(
EPA).
ACTION:
Supplemental
proposal;
request
for
comment.

SUMMARY:
The
Environmental
Protection
Agency
is
publishing
this
site­
specific
proposal,
which
supplements
the
previously
published
proposed
rule
for
this
pilot
project
under
the
Project
eXcellence
and
Leadership
Program
(
Project
XL).
This
supplemental
proposal
is
being
issued
in
light
of
new
data
received
by
EPA
concerning
the
cadmium
levels
in
the
wastewater
treatment
sludge
that
is
the
focus
of
this
site­
specific
rulemaking.
In
particular,
this
rulemaking
effort
will
allow
for
the
implementation
of
a
pilot
project
under
Project
XL
that
will
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
pilot
project
is
to
determine
whether
the
wastewater
treatment
sludge
resulting
from
the
treatment
of
wastewaters
from
electroplating
operations
(
and
therefore
meeting
the
listing
description
for
F006
Hazardous
Waste)
at
IBM's
East
Fishkill
facility
may
be
used
as
an
ingredient
in
the
manufacture
of
cement
in
an
environmentally
sound
manner
without
RCRA
regulatory
controls.
DATES:
Public
Comments:
Comments
on
this
supplemental
proposal
must
be
received
on
or
before
May
14,
2003.
All
comments
should
be
submitted
in
writing
or
electronically
according
to
the
directions
below
in
the
SUPPLEMENTARY
INFORMATION
section.
Public
Hearing:
Commenters
may
request
a
public
hearing
on
or
before
April
28,
2003,
and
should
specify
the
basis
for
the
request.
If
EPA
determines
there
is
sufficient
reason
to
hold
a
public
hearing,
it
will
do
so
by
May
5,
2003,
during
the
last
week
of
the
public
comment
period.
Requests
for
a
public
hearing
should
be
submitted
according
to
the
information
below
in
the
ADDRESSES
section.
If
a
public
hearing
is
scheduled,
the
date,
time,
and
location
will
be
available
through
a
Federal
Register
document
or
by
contacting
Mr.
Sam
Kerns
at
the
U.
S.
EPA
Region
2
office
(
see
FOR
FURTHER
INFORMATION
CONTACT
section,
below).
ADDRESSES:
Comments
may
be
submitted
electronically,
by
mail,
by
facsimile,
or
through
hand
delivery/
courier.
Follow
the
detailed
instructions
as
provided
in
the
SUPPLEMENTARY
INFORMATION
section.
Request
for
a
Hearing:
Requests
for
a
hearing
should
be
mailed
to
the
Environmental
Protection
Agency,
EPA
Docket
Center
(
EPA/
DC),
RCRA
Docket
(
5305T),
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC
20460.
Please
send
an
original
and
two
copies
of
all
comments,
and
refer
to
Docket
Number
F
 
2002
 
IB3P
 
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.
FOR
FURTHER
INFORMATION
CONTACT:
Mr.
Sam
Kerns,
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).
Further
information
on
today's
action
may
also
be
obtained
on
the
world
wide
web
at
http://
www.
epa.
gov/
projectxl/.
SUPPLEMENTARY
INFORMATION:

Outline
of
Today's
Supplemental
Proposal
The
information
presented
in
this
preamble
is
organized
as
follows:

I.
General
Information
A.
How
Can
I
get
Copies
of
This
Document
and
other
Related
Information?
B.
How
and
To
Whom
Do
I
Submit
Comments?
C.
How
Should
I
Submit
CBI
to
the
Agency?
D.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?
II.
Authority
III.
Background
A.
How
does
this
Supplemental
Proposal
relate
to
the
original
proposal
published
on
June
6,
2001
(
66
FR
30349)?
B.
Brief
Summary
of
the
June
6,
2001
Proposed
Rule
IV.
Discussion
of
Certain
Comments
Received
on
the
June
6,
2001
Proposed
Rule
A.
Shenandoah
Road
Superfund
Site
Stakeholders
B.
Environmental
Technology
Council
V.
Discussion
of
the
Change
From
the
June
6,
2001
Proposed
Rule
VI.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866
B.
Regulatory
Flexibility
Act,
as
amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
C.
Paperwork
Reduction
Act
D.
Unfunded
Mandates
Reform
Act
E.
Executive
Order
13132
F.
Executive
Order
13175
G.
Executive
Order
13045
H.
Executive
Order
13211
I.
National
Technology
Transfer
and
Advancement
Act
of
1995
J.
Executive
Order
12898
VII.
RCRA
&
Hazardous
and
Solid
Waste
Amendments
of
1984
A.
Applicability
of
Rules
in
Authorized
States
B.
Effect
on
New
York
I.
General
Information
A.
How
Can
I
Get
Copies
of
This
Document
and
Other
Related
Information?
I.
Docket.
EPA
has
established
an
official
public
docket
for
this
action
under
Docket
ID
No.
F
 
2002
 
IB3P
 
FFFFF.
The
official
public
docket
consists
of
the
documents
specifically
referenced
in
this
action,
any
public
comments
received,
and
other
information
related
to
this
action.
Although
a
part
of
the
official
docket,
the
public
docket
does
not
include
Confidential
Business
Information
(
CBI)
or
other
information
whose
disclosure
is
restricted
by
statute.
The
official
public
docket
is
the
collection
of
materials
that
is
available
for
public
viewing
at
the
RCRA
Docket
in
the
EPA
Docket
Center,
(
EPA/
DC)
EPA
West,
Room
B102,
1301
Constitution
Ave.,
NW.,
Washington,
DC.
The
EPA
Docket
Center
Public
Reading
Room
is
open
from
8:
30
a.
m.
to
4:
30
p.
m.,
Monday
through
Friday,
excluding
legal
holidays.
The
telephone
number
for
the
Reading
Room
is
(
202)
566
 
1742,
and
the
telephone
number
for
the
RCRA
Docket
is
(
202)
566
 
0270.
The
public
may
copy
a
maximum
of
100
pages
from
any
regulatory
docket
at
no
charge.
Additional
copies
cost
15
cents
per
page.
II.
Electronic
Access.
You
may
access
this
Federal
Register
document
electronically
through
the
EPA
Internet
under
the
``
Federal
Register''
listings
at
http://
www.
epa.
gov/
fedrgstr/.
An
electronic
version
of
the
public
docket
is
available
through
EPA's
electronic
public
docket
and
comment
system,
EPA
Dockets.
You
may
use
EPA
Dockets
at
http://
www.
epa.
gov/
edocket/
to
submit
or
view
public
comments,
access
the
index
listing
of
the
contents
of
the
official
public
docket,
and
to
access
those
documents
in
the
public
docket
that
are
available
electronically.
Once
in
the
system,
select
``
search,''
then
key
in
the
appropriate
docket
identification
number.
Certain
types
of
information
will
not
be
placed
in
the
EPA
Dockets.
Information
claimed
as
CBI
and
other
information
whose
disclosure
is
restricted
by
statute,
which
is
not
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FR\
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14APP3.
SGM
14APP3
18053
Federal
Register
/
Vol.
68,
No.
71
/
Monday,
April
14,
2003
/
Proposed
Rules
included
in
the
official
public
docket,
will
not
be
available
for
public
viewing
in
EPA's
electronic
public
docket.
EPA's
policy
is
that
copyrighted
material
will
not
be
placed
in
EPA's
electronic
public
docket
but
will
be
available
only
in
printed,
paper
form
in
the
official
public
docket.
To
the
extent
feasible,
publicly
available
docket
materials
will
be
made
available
in
EPA's
electronic
public
docket.
When
a
document
is
selected
from
the
index
list
in
EPA
Dockets,
the
system
will
identify
whether
the
document
is
available
for
viewing
in
EPA's
electronic
public
docket.
Although
not
all
docket
materials
may
be
available
electronically,
you
may
still
access
any
of
the
publicly
available
docket
materials
through
the
docket
facility
identified
in
I.
B.
EPA
intends
to
work
towards
providing
electronic
access
to
all
of
the
publicly
available
docket
materials
through
EPA's
electronic
public
docket.
For
public
commenters,
it
is
important
to
note
that
EPA's
policy
is
that
public
comments,
whether
submitted
electronically
or
in
paper,
will
be
made
available
for
public
viewing
in
EPA's
electronic
public
docket
as
EPA
receives
them
and
without
change,
unless
the
comment
contains
copyrighted
material,
CBI,
or
other
information
whose
disclosure
is
restricted
by
statute.
When
EPA
identifies
a
comment
containing
copyrighted
material,
EPA
will
provide
a
reference
to
that
material
in
the
version
of
the
comment
that
is
placed
in
EPA's
electronic
public
docket.
The
entire
printed
comment,
including
the
copyrighted
material,
will
be
available
in
the
public
docket.
Public
comments
submitted
on
computer
disks
that
are
mailed
or
delivered
to
the
docket
will
be
transferred
to
EPA's
electronic
public
docket.
Public
comments
that
are
mailed
or
delivered
to
the
Docket
will
be
scanned
and
placed
in
EPA's
electronic
public
docket.
Where
practical,
physical
objects
will
be
photographed,
and
the
photograph
will
be
placed
in
EPA's
electronic
public
docket
along
with
a
brief
description
written
by
the
docket
staff.
For
additional
information
about
EPA's
electronic
public
docket
visit
EPA
Dockets
online
or
see
67
FR
38102,
May
31,
2002.

B.
How
and
to
Whom
Do
I
Submit
Comments?
You
may
submit
comments
electronically,
by
mail,
by
facsimile,
or
through
hand
delivery/
courier.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
comment.
Please
ensure
that
your
comments
are
submitted
within
the
specified
comment
period.
Comments
received
after
the
close
of
the
comment
period
will
be
marked
``
late.''
EPA
is
not
required
to
consider
these
late
comments.
If
you
wish
to
submit
CBI
or
information
that
is
otherwise
protected
by
statute,
please
follow
the
instructions
in
I.
B.
2
and
I.
D.
Do
not
use
EPA
Dockets
or
e­
mail
to
submit
CBI
or
information
protected
by
statute.
I.
Electronically.
If
you
submit
an
electronic
comment
as
prescribed
below,
EPA
recommends
that
you
include
your
name,
mailing
address,
and
an
e­
mail
address
or
other
contact
information
in
the
body
of
your
comment.
Also
include
this
contact
information
on
the
outside
of
any
disk
or
CD
ROM
you
submit,
and
in
any
cover
letter
accompanying
the
disk
or
CD
ROM.
This
ensures
that
you
can
be
identified
as
the
submitter
of
the
comment
and
allows
EPA
to
contact
you
in
case
EPA
cannot
read
your
comment
due
to
technical
difficulties
or
needs
further
information
on
the
substance
of
your
comment.
EPA's
policy
is
that
EPA
will
not
edit
your
comment,
and
any
identifying
or
contact
information
provided
in
the
body
of
a
comment
will
be
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.
If
EPA
cannot
read
your
comment
due
to
technical
difficulties
and
cannot
contact
you
for
clarification,
EPA
may
not
be
able
to
consider
your
comment.
I.
EPA
Dockets.
Your
use
of
EPA's
electronic
public
docket
to
submit
comments
to
EPA
electronically
is
EPA's
preferred
method
for
receiving
comments.
Go
directly
to
EPA
Dockets
at
http://
www.
epa.
gov/
edocket,
and
follow
the
online
instructions
for
submitting
comments.
To
access
EPA's
electronic
public
docket
from
the
EPA
Internet
Home
Page,
select
``
Information
Sources,''
``
Dockets,''
and
``
EPA
Dockets.''
Once
in
the
system,
select
``
search,''
and
then
key
in
Docket
ID
No.
F
 
2002
 
IB3P
 
FFFFF.
The
system
is
an
``
anonymous
access''
system,
which
means
EPA
will
not
know
your
identity,
e­
mail
address,
or
other
contact
information
unless
you
provide
it
in
the
body
of
your
comment.
II.
E­
mail.
Comments
may
be
sent
by
electronic
mail
(
e­
mail)
to
rcradocket
epa.
gov,
Attention
Docket
ID
No.
F
 
2002
 
IB3P
 
FFFFF.
In
contrast
to
EPA's
electronic
public
docket,
EPA's
email
system
is
not
an
``
anonymous
access''
system.
If
you
send
an
e­
mail
comment
directly
to
the
Docket
without
going
through
EPA's
electronic
public
docket,
EPA's
e­
mail
system
automatically
captures
your
e­
mail
address.
E­
mail
addresses
that
are
automatically
captured
by
EPA's
e­
mail
system
are
included
as
part
of
the
comment
that
is
placed
in
the
official
public
docket,
and
made
available
in
EPA's
electronic
public
docket.
III.
Disk
or
CD
ROM.
You
may
submit
comments
on
a
disk
or
CD
ROM
that
you
mail
to
the
mailing
address
identified
in
I.
B.
These
electronic
submissions
will
be
accepted
in
WordPerfect
or
ASCII
file
format.
Avoid
the
use
of
special
characters
and
any
form
of
encryption.
II.
By
Mail.
Send
2
copies
of
your
comments
to
the
RCRA
Docket,
Environmental
Protection
Agency,
Mailcode:
5305T,
1200
Pennsylvania
Ave.,
NW.,
Washington,
DC,
20460,
Attention
Docket
ID
No.
F
 
2001
 
IB3P
 
FFFFF.
III.
By
Hand
Delivery
or
Courier.
Deliver
your
comments
to:
Environmental
Protection
Agency,
EPA
Docket
Center,
1301
Constitution
Avenue,
NW.,
Washington,
DC
20004,
Attention
Docket
ID
No.
F
 
2002
 
IB3P
 
FFFFF.
Such
deliveries
are
only
accepted
during
the
Docket's
normal
hours
of
operation
as
identified
in
A.
1.
IV.
By
Facsimile.
Fax
your
comments
to:
202
 
566
 
0272,
Attention
Docket
ID.
No.
F
 
2001
 
IB3P
 
FFFFF.

C.
How
Should
I
Submit
CBI
to
the
Agency?
Do
not
submit
information
that
you
consider
to
be
CBI
electronically
through
EPA's
electronic
public
docket
or
by
e­
mail.
Send
or
deliver
information
identified
as
CBI
only
to
the
following
address:
Environmental
Protection
Agency,
EPA
Docket
Center
(
EPA/
DC),
RCRA
Docket,
1301
Constitution
Avenue,
NW.,
Washington,
DC
20004,
Attention
Docket
ID
No.
F
 
2001
 
IB3P
 
FFFFF.
You
may
claim
information
that
you
submit
to
EPA
as
CBI
by
marking
any
part
or
all
of
that
information
as
CBI
(
if
you
submit
CBI
on
disk
or
CD
ROM,
mark
the
outside
of
the
disk
or
CD
ROM
as
CBI
and
then
identify
electronically
within
the
disk
or
CD
ROM
the
specific
information
that
is
CBI).
Information
so
marked
will
not
be
disclosed
except
in
accordance
with
procedures
set
forth
in
40
CFR
part
2.
In
addition
to
one
complete
version
of
the
comment
that
includes
any
information
claimed
as
CBI,
a
copy
of
the
comment
that
does
not
contain
the
information
claimed
as
CBI
must
be
submitted
for
inclusion
in
the
public
docket
and
EPA's
electronic
public
docket.
If
you
submit
the
copy
that
does
not
contain
CBI
on
disk
or
CD
ROM,
mark
the
outside
of
the
disk
or
CD
ROM
clearly
that
it
does
not
contain
CBI.
Information
not
marked
as
CBI
will
be
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/
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68,
No.
71
/
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April
14,
2003
/
Proposed
Rules
included
in
the
public
docket
and
EPA's
electronic
public
docket
without
prior
notice.
If
you
have
any
questions
about
CBI
or
the
procedures
for
claiming
CBI,
please
consult
the
person
identified
in
the
FOR
FURTHER
INFORMATION
CONTACT
section.

D.
What
Should
I
Consider
as
I
Prepare
My
Comments
for
EPA?

You
may
find
the
following
suggestions
helpful
for
preparing
your
comments:
I.
Explain
your
views
as
clearly
as
possible.
II.
Describe
any
assumptions
that
you
used.
III.
Provide
any
technical
information
and/
or
data
you
used
that
support
your
views.
IV.
If
you
estimate
potential
burden
or
costs,
explain
how
you
arrived
at
your
estimate.
V.
Provide
specific
examples
to
illustrate
your
concerns.
VI.
Offer
alternatives.
VII.
Make
sure
to
submit
your
comments
by
the
comment
period
deadline
identified.
VIII.
To
ensure
proper
receipt
by
EPA,
identify
the
appropriate
docket
identification
number
in
the
subject
line
on
the
first
page
of
your
response.
It
would
also
be
helpful
if
you
provided
the
name,
date,
and
Federal
Register
citation
related
to
your
comments.

II.
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).

III.
Background
A.
How
Does
This
Supplemental
Proposal
Relate
to
the
Original
Proposal
Published
on
June
6,
2001
(
66
FR
30349)?

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.
Information
will
be
obtained
and
used
to
evaluate
this
recycling
process
and
determine
whether
similar
sludges
should
also
be
excluded
from
RCRA
regulatory
controls
when
recycled
in
the
same
manner.
However,
additional
data
will
likely
be
necessary
before
EPA
would
be
in
a
position
to
evaluate
this
practice
at
the
national
level.
Today's
supplemental
proposal
amends
the
original
proposal
published
on
June
6,
2001
(
66
FR
30349).
As
with
the
original
proposed
rule,
this
supplemental
proposal
is
not
intended
to
apply
to
any
other
hazardous
wastes
generated
and/
or
managed
at
the
IBM
facility,
unless
the
wastewater
treatment
sludge
(
also
designated
as
F006
Hazardous
Waste)
generated
by
the
other
wastewater
treatment
plant
(
the
B/
386
East
Complex)
at
the
facility
becomes
eligible
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.
The
proposed
rule
does
not
apply
to
any
wastewater
treatment
sludges
generated
at
other
facilities.
The
duration
of
this
pilot
project
is
five
years
 
that
is,
the
site­
specific
conditional
exclusion
includes
a
``
sunset
provision''
which
will
automatically
terminate
the
exclusion
five
years
from
the
effective
date
of
the
final
rulemaking.
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).
However,
EPA
does
not
expect
that
this
XL
project
alone
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.
Today's
supplemental
proposal,
and
the
original
proposed
rulemaking
will
not
in
any
way
affect
the
provisions
or
applicability
of
any
other
existing
or
future
regulations.
EPA
is
soliciting
comments
on
today's
supplemental
proposal.
EPA
will
publish
responses
to
comments,
and
comments
to
the
original
proposal
in
a
subsequent
Federal
Register
document.
Subject
to
comments
received
on
the
proposal,
EPA
will
either
promulgate
the
proposed
rule
(
as
supplemented
with
today's
proposal)
as
a
final
rule,
modify
the
proposal
as
necessary
to
address
comments
and
promulgate
the
modified
proposal
as
a
final
rule,
or
decide
to
not
go
final
with
the
rule.
If
significant
changes
to
the
rule
are
necessary
based
on
comments
received,
EPA
will
re­
propose
the
rule
to
allow
for
further
public
notice
and
comment.
The
XL
project
will
enter
the
implementation
phase
only
after
a
final
rule
is
promulgated
by
EPA,
and
NYSDEC
has
undertaken
appropriate
action
to
allow
the
project
to
be
implemented.
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/.
For
a
more
complete
and
detailed
discussion
of
Project
XL,
the
development
of
the
Final
Project
Agreement
(
FPA),
and
the
pilot
project
for
which
this
supplemental
proposal
is
intended,
the
reader
is
referred
to
the
original
proposal
(
June
6,
2001,
66
FR
30349).
The
summary
of
the
proposed
rule
provided
below
is
not
intended
to
be
comprehensive,
but
only
includes
those
aspects
of
the
proposed
rule
most
relevant
to
this
supplemental
proposal.

B.
Brief
Summary
of
the
June
6,
2001
Proposed
Rule
On
June
6,
2001,
EPA
published
a
proposed
rule
(
66
FR
30349)
to
amend
the
RCRA
regulatory
definition
of
solid
waste
to
provide
a
site­
specific
conditional
exclusion
for
the
F006
electroplating
sludge
generated
by
the
IBM
East
Fishkill
facility
located
in
Hopewell
Junction,
New
York.
This
rulemaking
effort
was
undertaken
to
allow
for
the
implementation
of
a
pilot
project
under
Project
XL
to
determine
whether
the
electroplating
sludge
could
be
recycled
in
an
environmentally
sound
manner
as
an
ingredient
in
the
production
of
cement
without
RCRA
regulatory
oversight.
(
Note
that
the
legitimate
recycling
of
this
sludge
as
an
ingredient
in
cement
is
currently
regulated
under
Subtitle
C
of
RCRA
because
the
cement
is
likely
to
be
used
on
the
land
 
that
is,
``
used
in
a
manner
constituting
disposal,''
a
form
of
recycling
that
is
analogous
to
land
disposal.
Because
the
current
regulatory
framework
would
subject
this
sludge
to
RCRA
regulatory
requirements,
this
recycling
scenario
would
likely
not
be
undertaken
and
implemented
without
the
site­
specific
exclusion.)
EPA's
(
and
NYSDEC's)
decision
to
proceed
with
this
pilot
project
was
based
in
large
part
on
the
determination
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14,
2003
/
Proposed
Rules
that
the
use
of
the
sludge
as
an
ingredient
in
cement
is
legitimate
recycling.
In
other
words,
the
electroplating
sludge
in
question
was
determined,
based
on
a
comparative
analysis
of
the
constituents
in
both
the
sludge
and
the
raw
materials
that
the
sludge
would
be
replacing,
to
be
a
legitimate
substitute
for
the
analogous
raw
materials
that
would
otherwise
be
used
in
the
production
of
cement.
See
the
June
6,
2001
proposal
(
66
FR
at
30352
 
30354)
for
a
more
detailed
discussion
of
the
Agency's
basis
for
defining
this
activity
as
legitimate
recycling.
Having
determined
the
legitimacy
of
this
activity,
the
proposed
site­
specific
exclusion
was
conditioned
on
the
sludge
remaining
consistent
with
the
analogous
raw
materials,
which
was
accomplished
by
setting
a
set
of
threshold
levels
for
the
hazardous
constituents
contained
in
the
sludge.
(
Note
that
the
site­
specific
conditional
exclusion
also
imposes
certain
other
conditions
on
IBM
to
be
eligible
for
the
exclusion.)

IV.
Discussion
of
Certain
Comments
Received
on
the
June
6,
2001
Proposed
Rule
On
June
6,
2001,
EPA
requested
comments
on
the
proposed
rule
for
the
IBM
East
Fishkill
Project
XL
(
see
66
FR
30349).
While
the
Agency
will
appropriately
address
the
comments
received
in
the
final
rule
(
assuming
the
rule
is
finalized),
EPA
is
taking
this
opportunity
to
address
certain
fundamental
misconceptions
concerning
this
XL
pilot
project
that
are
common
to
many
of
the
comments
received
on
the
original
proposal.
In
addition,
the
Agency
would
like
to
address
certain
comments
that
question
the
overall
``
legitimacy''
of
using
this
F006
sludge
as
an
ingredient
in
cement.

A.
Shenandoah
Road
Superfund
Site
Stakeholders
Comments
were
submitted
by
concerned
citizens
living
in
a
community
near
the
IBM
East
Fishkill
facility
who
are
also
involved
as
stakeholders
in
the
cleanup
of
the
Shenandoah
Road
Groundwater
Contamination
Superfund
Site,
a
remediation
activity
for
which
the
IBM
East
Fishkill
facility
was
identified
as
a
Potentially
Responsible
Party
(
PRP).
The
Agency
is
taking
this
opportunity
to
address
some
of
the
concerns
expressed
by
these
citizens.
The
sludge
involved
in
this
XL
project
was
not
disposed
of
at
the
Superfund
site,
and
the
production
lines
and
wastewater
treatment
systems
involved
in
generating
the
sludge
are
not
associated
with
operations
which
resulted
in
the
groundwater
contamination
that
is
the
focus
of
the
Superfund
remedial
activities.
Further,
the
sludge
does
not
contain
tetrachloroethene
(
PCE)
or
other
volatile
organic
constituents
(
VOCs),
but
rather
is
primarily
composed
of
calcium
and
fluoride,
and
includes
certain
inorganic
constituents
of
concern
(
i.
e.,
heavy
metals)
at
low
levels.
Also,
it
is
worth
noting
that
while
the
facility
may
have
been
involved
in
past
operations
that
resulted
in
environmental
damages,
this
in
and
of
itself
does
not
preclude
the
facility
(
or
any
facility)
from
developing
and
proposing
a
pilot
project
that
meets
the
Project
XL
criteria.
In
addition,
several
of
the
commenters
requested
a
public
meeting
on
this
XL
project
and
the
proposed
rule
and
an
extension
to
the
comment
period.
This
request
was
declined
by
EPA
because
the
substantive
concerns
expressed
in
the
comments
were
primarily
based
upon
a
perceived
connection
between
this
XL
pilot
project
and
the
contamination/
remediation
activities
at
the
Shenandoah
Road
Superfund
Site.
Since
public
meetings
concerning
the
Superfund
site
were
being
held,
EPA
concluded
that
they
provided
a
more
appropriate
forum
to
raise
such
concerns.
To
address
any
concerns
that
may
have
been
somewhat
related
to
IBM's
XL
project,
EPA
held
an
Availability
Session
(
an
informal
forum
in
which
the
pilot
project
could
be
discussed
with
interested
individuals)
in
conjunction
with
one
of
the
Superfund
public
meetings
as
an
effective
first
step
in
addressing
those
concerns.
A
fact
sheet
for
the
project
was
updated
to
respond
to
comments
received
before
the
Superfund
public
meeting
that
was
scheduled
for
June
13,
2001,
a
week
following
publication
of
the
proposed
rule.
(
Most
of
the
comments
received
from
the
residents
of
the
Shenandoah
Road
area
had
been
received
before
this
meeting.)
EPA's
project
manager
for
this
XL
project
attended
the
June
13,
2001
Superfund
public
meeting,
hosted
the
Availability
Session,
discussed
this
XL
project
with
interested
persons,
and
distributed
copies
of
the
fact
sheet.
Comments
that
were
received
during
and
immediately
after
the
Availability
Session
were
subsequently
addressed
by
letter
or
e­
mail.
Therefore,
although
neither
a
public
meeting
nor
an
extension
of
the
comment
period
was
granted
specific
to
this
XL
project
or
proposed
rule,
the
Agency
took
steps
to
address
the
concerns
raised.

B.
Environmental
Technology
Council
The
Environmental
Technology
Council
(
ETC)
is
a
national
trade
association
representing
the
commercial
hazardous
waste
management
industry
and
has
historically
been
an
active
stakeholder
in
rulemakings
involving
RCRA
jurisdiction.
While
ETC
commented
on
several
aspects
of
the
proposal
which
will
be
addressed
in
the
final
rule
(
assuming
the
rule
is
finalized),
several
comments
related
to
``
legitimate
recycling''
and
``
dilution''
exhibited
a
significant
misunderstanding
that
the
Agency
wishes
to
address
in
today's
notice.
To
begin,
ETC
asserts
that
the
recycling
of
IBM's
sludge
as
an
ingredient
in
cement
is
a
sham,
rather
than
legitimate
recycling.
In
other
words,
ETC
claims
that
the
use
of
the
calcium­
rich
sludge
as
an
ingredient
in
cement
is
nothing
more
than
treatment
and/
or
disposal
of
the
sludge
in
the
guise
of
recycling.
While
ETC
provides
support
for
this
assertion
by
addressing
the
various
``
legitimacy
criteria''
as
the
Agency
did
in
the
proposal
(
see
66
FR
at
30353),
one
aspect
of
ETC's
discussion
requires
clarification
from
EPA
in
this
supplemental
proposal.
ETC
contends
that
the
sludge
contains
significantly
higher
levels
of
hazardous
constituents
than
the
analogous
raw
materials
the
sludge
would
replace.
The
Agency
disagrees
with
ETC
and
notes
that
ETC
cites
historical
analytical
data
on
the
sludge
rather
than
the
more
recent
analyses
of
the
sludge
to
support
this
claim.
Further,
ETC
fails
to
acknowledge
the
threshold
levels
proposed
as
a
mechanism
to
ensure
that
the
sludge
excluded
from
RCRA
regulation
would
remain
comparable
to
the
analogous
raw
materials.
ETC's
claim
to
the
contrary
notwithstanding,
the
sludge
that
will
be
recycled
pursuant
to
the
proposed
conditional
exclusion
will,
in
effect,
legitimately
substitute
for
the
analogous
raw
materials
that
would
otherwise
be
used.
This
is
one
of
the
indicators
the
Agency
considered
in
determining
that
the
use
of
the
sludge
as
an
ingredient
in
the
production
of
cement
is
legitimate
recycling.
As
for
ETC's
position
that
this
recycling
scenario
is
simply
dilution,
the
Agency
acknowledges
that
the
1:
200
ratio
of
sludge
to
normal
raw
materials
might,
in
and
of
itself,
lead
one
to
assume
that
impermissible
dilution
is
occurring.
Indeed,
the
Agency
stated
as
much
in
the
preamble
to
the
proposed
rule
(
see
66
FR
at
30354);
however,
as
EPA
also
discussed,
upon
further
evaluation,
one
can
see
that
the
ratio
is
merely
a
function
of
the
relatively
small
volume
of
electroplating
sludge
generated
by
the
IBM
facility
and
the
relatively
large
volume
of
raw
materials
typically
processed
by
a
cement
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Proposed
Rules
1
Note
that,
as
mentioned
in
the
original
proposed
rule
(
see
Footnote
4,
66
FR
at
30354,
June
6,
2001),
during
the
development
of
this
XL
project,
IBM
had
previously
conducted
a
review
of
the
materials
used
in
the
facility's
production
processes
and
determined
that
cadmium
is
not
used
at
the
facility.
2
In
considering
a
more
appropriate
cadmium
threshold
level,
the
Agency
contacted
the
National
Lime
Association
(
NLA)
for
generic
information
regarding
the
variability
of
metal
concentrations
naturally
occurring
in
lime
on
a
national
basis.
Such
comprehensive
information
was
not
readily
available.
However,
in
considering
whether
the
Agency
should
characterize
the
constituent
concentrations
of
cadmium
in
lime
on
a
national
basis
(
a
somewhat
daunting
task),
EPA
learned
that
such
a
characterization
may
not
be
necessary
to
develop
a
threshold
level
that
appropriately
reflects
the
cadmium
concentrations
in
the
lime
the
IBM
East
Fishkill
facility
uses.
Rather,
as
the
Agency
learned
from
the
NLA,
the
lime
products
provided
by
IBM's
distributor
are
ANSI
 
60
(
UL)
certified
as
water
treatment
chemicals.
This
means
that
these
products
(
including
the
lime
used
in
IBM's
wastewater
treatment
system)
meet
the
applicable
concentration
criteria
for
heavy
metals,
including
cadmium
(
which
is
2
ppm),
as
long
as
the
products
are
used
per
specifications.
In
other
words,
the
specific
lime
used
by
this
specific
IBM
facility
is
certified
to
have
no
more
than
2
ppm
cadmium.
Given
that
this
is
a
site­
specific
rulemaking,
EPA
considers
this
2
ppm
cadmium
concentration
to
be
a
more
appropriate
threshold
level
for
this
specific
site
than
a
threshold
level
reflecting
the
cadmium
concentrations
developed
on
a
national
basis.
manufacturer.
It
is
not,
as
ETC
asserts,
an
attempt
to
simply
dispose
of
the
sludge
by
diluting
it
into
a
much
larger
volume
of
raw
materials.
In
making
this
claim,
ETC
ignores
the
fact
that
the
sludge
does
indeed
contribute
a
very
integral
part
of
the
ingredient
mixture
necessary
to
produce
cement
(
i.
e.,
calcium).
Furthermore,
as
stated
earlier,
the
concentrations
of
hazardous
constituents
in
the
sludge
and
in
the
analogous
raw
materials
are
comparable.
Therefore,
to
the
extent
that
there
is
any
``
dilution''
of
the
hazardous
constituents
in
the
sludge,
the
Agency
believes
it
would
be
nominal,
incidental,
and
consistent
with
the
processing
that
the
normal
raw
materials
undergo
in
the
production
of
cement
(
i.
e.,
similar
to
the
``
dilution''
that
occurs
when
only
normal
raw
materials
are
used).
Finally,
the
Agency
notes
that
ETC
acknowledges
in
their
comments
that
the
Toxicity
Characteristic
Leaching
Procedure
(
TCLP)
data
provided
in
support
of
this
rulemaking
indicate
that
the
sludge
would
meet
the
applicable
Land
Disposal
Restrictions
treatment
standards
as
generated,
without
requiring
further
treatment.
Given
that
the
sludge
already
meets
the
treatment
standards
that
would
apply
if
it
was
disposed
of
in
a
Subtitle
C
permitted
hazardous
waste
landfill,
``
dilution''
as
an
impermissible
substitute
for
the
appropriate
treatment
of
the
hazardous
constituents
is
a
moot
point
(
see
40
CFR
268.3).

V.
Discussion
of
the
Change
From
the
June
6,
2001
Proposed
Rule
Since
the
June
6,
2001
proposal,
IBM
continued
to
sample
and
analyze
the
sludge
that
is
the
focus
of
this
pilot
project.
In
the
course
of
this
sampling
and
analysis
effort,
IBM
discovered
that
the
concentration
of
cadmium
in
the
sludge
had
increased
to
1.5182
ppm.
IBM
then
conducted
a
thorough
inventory
of
the
materials
and
equipment
used
in
the
production
processes
and
determined
that
cadmium
is
not
used1.
In
the
June
6,
2001
proposal,
the
Agency
discussed
IBM's
assumption
that
the
cadmium
detected
in
the
wastewater
treatment
sludge
is
present
as
a
contaminant
in
the
lime
used
in
the
wastewater
treatment
process
(
see
Footnote
4,
66
FR
30354).
This
appears
to
be
the
case.
Upon
learning
that
in
some
instances
the
sludge
would
not
meet
the
threshold
level
that
the
Agency
had
originally
proposed
for
cadmium
(
i.
e.,
0.88
mg/
kg)
for
the
sludge
to
be
conditionally
excluded
from
the
definition
of
solid
waste,
IBM
informed
EPA;
EPA
then
requested
that
IBM
provide
a
detailed
analysis
of
the
lime
used
in
the
wastewater
treatment
process
(
which
IBM
received
from
the
distributor
of
the
lime).
This
analysis
showed
that
the
lime
being
used
by
IBM
at
the
time
contained
2.0
ppm
cadmium.
The
Agency
believes
that,
because
the
lime
makes
up
such
a
high
proportion
of
the
sludge
(
typically
more
than
90%,
according
to
IBM),
the
cadmium
levels
in
the
sludge
are
consistent
with
what
would
be
expected
given
the
cadmium
levels
in
the
lime.
In
considering
how
to
proceed,
one
option
was
to
keep
the
proposed
threshold
level
of
cadmium
in
the
wastewater
treatment
sludge
and
disallow
any
sludge
not
meeting
this
level
from
being
conditionally
excluded
from
the
definition
of
solid
waste
under
the
pilot
project.
Under
this
approach,
if
the
Agency
finalizes
the
site­
specific
exclusion,
and
did
so
as
originally
proposed,
IBM
could
begin
to
use
the
sludge
as
an
ingredient
in
cement
once
the
sludge
met
the
proposed
conditions
of
the
exclusion.
However,
this
approach
seems
inappropriate,
especially
considering
that
the
lime
containing
2.0
ppm
cadmium
could
itself
be
used
as
an
ingredient
in
cement
outside
of
RCRA
jurisdiction
(
the
lime
is
a
commercial
product,
not
a
solid
waste).
Put
another
way,
the
Agency
believes
it
would
be
inappropriate
to
disallow
the
sludge
(
which
is
primarily
lime)
from
being
used
as
an
ingredient
because
of
a
contaminant
in
the
lime.
Therefore
this
was
not
considered
a
viable
option.
An
alternative
option
is
to
re­
propose
a
more
realistic
threshold
level
for
cadmium,
based
on
the
potential
presence
of
cadmium
in
the
lime
used
in
wastewater
treatment.
The
Agency
notes
that
the
slightly
higher
concentration
of
cadmium
in
the
sludge
(
as
well
as
the
proposed
change
to
the
cadmium
threshold
level
to
reflect
that
concentration)
has
no
effect
on
the
Agency's
determination
that
the
sludge
is
analogous
to
the
raw
materials
that
would
otherwise
be
used
as
ingredients
in
the
production
of
cement.
And,
as
discussed
briefly
in
the
proposal
(
see
66
FR
30354,
June
6,
2001),
a
certain
amount
of
variability
in
the
constituent
concentrations
in
the
normal
raw
materials
used
to
produce
cement
is
typical,
if
not
expected.
In
proposing
the
original
cadmium
threshold
of
0.88
mg/
kg,
the
Agency
assumed
that
this
would
account
for
such
variability.
Obviously,
this
was
not
the
case.
Therefore,
the
Agency
has
determined
that
it
is
more
appropriate
to
re­
propose
a
cadmium
threshold
level
that
more
accurately
reflects
the
potential
variability
of
cadmium
concentrations
in
lime,
and
its
attendant
impact
on
the
cadmium
concentrations
in
the
sludge
generated
using
the
lime.
In
defining
a
cadmium
threshold
that
would
be
more
appropriate
and
reflect
the
natural
variability
in
raw
materials
normally
used
as
ingredients
in
cement,
the
Agency
learned
that
the
lime
IBM
uses
for
treating
the
electroplating
wastewaters
is
held
to
a
maximum
concentration
of
2.0
ppm,
which
is
the
standard
for
cadmium
concentrations
in
lime
used
for
conditioning
(
or
treating)
drinking
water.
2
Assuming
that
the
lime
used
to
generate
the
sludge
will
not
exceed
2.0
ppm
cadmium,
the
sludge
should
also
not
exceed
this
level.
Therefore,
the
Agency
is
today
proposing
that
the
threshold
level
for
cadmium
be
set
at
2.0
mg/
kg
(
rather
than
the
previously
proposed
level
of
0.88
mg/
kg).
The
Agency
believes
that
this
threshold
level
more
accurately
reflects
the
upper
limit
of
the
concentration
of
cadmium
naturally
occurring
in
the
specific
lime
used
to
generate
the
electroplating
sludge.
Finally,
the
Agency
notes
that
while
it
is
publishing
the
entire
text
of
the
regulatory
language
that
was
proposed
in
the
June
6,
2001
Federal
Register
document
to
provide
context
for
the
proposed
change
in
this
supplemental
proposal,
the
Agency
is
only
soliciting
comment
on
the
revised
cadmium
threshold
level.

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14,
2003
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Proposed
Rules
VI.
Statutory
and
Executive
Order
Reviews
A.
Executive
Order
12866
Under
Executive
Order
12866
(
58
FR
51735),
the
Agency
must
determine
whether
this
regulatory
action
is
``
significant''
and
therefore
subject
to
formal
review
by
the
Office
of
Management
and
Budget
(
OMB)
and
to
the
requirements
of
the
Executive
Order,
which
include
assessing
the
costs
and
benefits
anticipated
as
a
result
of
this
regulatory
action.
The
Order
defines
``
significant
regulatory''
action
as
one
that
is
likely
to
result
in
a
rule
that
may:
(
1)
Have
an
annual
effect
on
the
economy
of
$
100
million
or
more
or
adversely
affect
in
a
material
way
the
economy,
a
sector
of
the
economy,
productivity,
competition,
jobs,
the
environment,
public
health
or
safety,
or
State,
local,
or
Tribal
governments
or
communities;
(
2)
create
a
serious
inconsistency
or
otherwise
interfere
with
an
action
taken
or
planned
by
another
agency;
(
3)
materially
alter
the
budgetary
impact
of
entitlements,
grants,
user
fees,
or
loan
programs
or
the
rights
and
obligations
of
recipients
thereof;
or
(
4)
raise
novel
legal
or
policy
issues
arising
out
of
legal
mandates,
the
President's
priorities,
or
the
principles
set
forth
in
the
Executive
Order.
Because
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.

B.
Regulatory
Flexibility
Act
(
RFA),
as
Amended
by
the
Small
Business
Regulatory
Enforcement
Fairness
Act
of
1996
(
SBREFA),
5
U.
S.
C.
601
et.
seq.

The
RFA
generally
requires
an
agency
to
prepare
a
regulatory
flexibility
analysis
of
any
rule
subject
to
notice
and
comment
rulemaking
requirements
under
the
Administrative
Procedure
Act
or
any
other
statute
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
organizations,
and
small
governmental
jurisdictions.
For
purposes
of
assessing
the
impacts
of
today's
rule
on
small
entities,
small
entity
is
defined
as:
(
1)
A
small
business;
(
2)
a
small
governmental
jurisdiction
that
is
a
government
of
a
city,
county,
town,
school
district
or
special
district
with
a
population
of
less
than
50,000;
and
(
3)
a
small
organization
that
is
any
not­
for­
profit
enterprise
which
is
independently
owned
and
operated
and
is
not
dominant
in
its
field.
After
considering
the
economic
impacts
of
today's
proposed
rule
on
small
entities,
I
certify
that
this
action
will
not
have
a
significant
economic
impact
on
a
substantial
number
of
small
entities.
This
proposed
rule
will
not
impose
any
requirements
on
small
entities
because
it
only
affects
the
IBM
facility
in
Hopewell
Junction,
NY
and
which
does
not
fit
the
definition
of
small
entity.

C.
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.

D.
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
by
State,
local,
and
Tribal
governments,
in
the
aggregate,
or
to
the
private
sector,
of
$
100
million
or
more
in
any
one
year.
Before
promulgating
a
rule
for
which
a
written
statement
is
needed,
section
205
of
the
UMRA
generally
requires
EPA
to
identify
and
consider
a
reasonable
number
of
regulatory
alternatives
and
adopt
the
least
costly,
most
cost­
effective
or
least
burdensome
alternative
that
achieves
the
objectives
of
the
rule.
The
provisions
of
section
205
do
not
apply
when
they
are
inconsistent
with
applicable
law.
Moreover,
section
205
allows
EPA
to
adopt
an
alternative
other
than
the
least
costly,
most
cost­
effective,
or
least
burdensome
alternative
if
the
Administrator
publishes
with
the
final
rule
an
explanation
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,
enable
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.

E.
Executive
Order
13132
Executive
Order
13132,
entitled
``
Federalism''
(
64
FR
43255,
August
10,
1999),
requires
EPA
to
develop
an
accountable
process
to
ensure
meaningful
and
timely
input
by
State
and
local
officials
in
the
development
of
regulatory
policies
that
have
federalism
implications.
``
Policies
that
have
federalism
implications''
is
defined
in
the
Executive
Order
to
include
regulations
that
have
``
substantial
direct
effects
on
the
States,
on
the
relationship
between
the
national
government
and
the
States,
or
on
the
distribution
of
power
and
responsibilities
among
the
various
levels
of
government.''
Today's
proposal,
which
supplements
the
earlier
proposal,
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
the
various
levels
of
government,
as
specified
in
Executive
Order
13132.
Today's
supplemental
proposal
will
only
affect
one
facility,
providing
regulatory
flexibility
applicable
to
this
specific
site.
Thus,
Executive
Order
13132
does
not
apply
to
this
rule.

F.
Executive
Order
13175
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
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Rules
government
and
the
Indian
tribes,
or
on
the
distribution
of
power
and
responsibilities
between
the
Federal
government
and
Indian
tribes.''
Today's
proposal,
which
supplements
the
earlier
proposal,
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.

G.
Executive
Order
13045
Executive
Order
13045,
entitled
``
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
potential
effective
and
reasonably
feasible
alternatives
considered
by
the
Agency.
This
proposed
rule
is
not
subject
to
Executive
Order
13045
because
it
is
not
an
economically
significant
rule
as
defined
by
Executive
Order
12866,
and
because
the
Agency
does
not
have
reason
to
believe
the
environmental
health
or
safety
risks
addressed
by
this
action
present
a
disproportionate
risk
to
children
because
this
action
raises
the
threshold
level
of
cadmium
to
the
concentration
that
naturally
occurs
in
lime
used
to
generate
electroplating
sludge.
The
public
is
invited
to
submit
or
identify
peer­
reviewed
studies
and
data,
of
which
the
Agency
may
not
be
aware,
that
assessed
results
of
early
life
exposure
to
cadmium
that
occurs
naturally
in
raw
materials
that
are
used
in
cement
production.

H.
Executive
Order
13211
This
rule
is
not
a
``
significant
energy
action''
as
defined
in
Executive
Order
13211,
``
Actions
Concerning
Regulations
That
Significantly
Affect
Energy
Supply,
Distribution,
or
Use''
(
66
FR
28355,
May
22,
2001)
because
it
is
not
likely
to
have
a
significant
adverse
effect
on
the
supply,
distribution,
or
use
of
energy.
It
will
not
result
in
increased
energy
prices,
increased
cost
of
energy
distribution,
or
an
increased
dependence
on
foreign
supplies
of
energy.

I.
National
Technology
Transfer
and
Advancement
Act
of
1995
Section
12(
d)
of
the
National
Technology
Transfer
and
Advancement
Act
of
1995
(``
NTTAA,''
Public
Law
104
 
113,
section
12(
d)
(
15
U.
S.
C.
272
note)
directs
EPA
to
use
voluntary
consensus
standards
in
its
regulatory
activities
unless
to
do
so
would
be
inconsistent
with
applicable
law
or
otherwise
impractical.
Voluntary
consensus
standards
are
technical
standards
(
e.
g.,
materials
specifications,
test
methods,
sampling
procedures,
and
business
practices)
that
are
developed
or
adopted
by
voluntary
consensus
standards
bodies.
The
NTTAA
directs
EPA
to
provide
Congress,
through
OMB,
explanations
when
the
Agency
decides
not
to
use
available
and
applicable
voluntary
consensus
standards.
Today's
proposal,
which
supplements
the
earlier
proposal,
does
not
establish
technical
standards.
Therefore,
EPA
did
not
consider
the
use
of
any
voluntary
consensus
standards.

J.
Executive
Order
12898
Executive
Order
12898,
``
Federal
Actions
to
Address
Environmental
Justice
in
Minority
Populations
and
Low­
Income
Populations''
(
February
11,
1994),
is
designed
to
address
the
environmental
and
human
health
conditions
of
minority
and
low­
income
populations.
EPA
is
committed
to
addressing
environmental
justice
concerns
and
has
assumed
a
leadership
role
in
environmental
justice
initiatives
to
enhance
environmental
quality
for
all
citizens
of
the
United
States.
The
Agency's
goals
are
to
ensure
that
no
segment
of
the
population,
regardless
of
race,
color,
national
origin,
income,
or
net
worth
bears
disproportionately
high
and
adverse
human
health
and
environmental
impacts
as
a
result
of
EPA's
policies,
programs,
and
activities.
In
response
to
Executive
Order
12898,
EPA's
Office
of
Solid
Waste
and
Emergency
Response
(
OSWER)
formed
an
Environmental
Justice
Task
Force
to
analyze
the
array
of
environmental
justice
issues
specific
to
waste
programs
and
to
develop
an
overall
strategy
to
identify
and
address
these
issues
(
OSWER
Directive
No.
9200.3
 
17).
To
address
this
goal,
EPA
conducted
a
qualitative
analysis
of
the
environmental
justice
issues
under
the
national
proposed
rule.
Potential
environmental
justice
impacts
are
identified
consistent
with
the
EPA's
Environmental
Justice
Strategy
and
the
OSWER
Environmental
Justice
Action
Agenda.
Today's
proposal,
which
supplements
an
earlier
proposal,
applies
to
one
facility
in
New
York.
Overall,
no
disproportional
impacts
to
minority
or
low
income
communities
are
expected.

VII.
RCRA
&
Hazardous
and
Solid
Waste
Amendments
of
1984
A.
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.

B.
Effect
on
New
York
Authorization
The
proposed
rule,
which
today's
notice
supplements,
if
finalized,
will
be
promulgated
pursuant
to
non­
HSWA
authority,
rather
than
HSWA.
New
York
has
received
authority
to
administer
most
of
the
RCRA
program;
thus,
authorized
provisions
of
the
State's
hazardous
waste
program
are
administered
in
lieu
of
the
Federal
program.
New
York
has
received
authority
to
administer
the
regulations
that
define
solid
wastes.
As
a
result,
if
the
proposed
rule
to
modify
the
existing
regulations
to
provide
a
site­
specific
exclusion
for
IBM's
wastewater
treatment
sludge
is
finalized,
it
would
not
be
effective
in
New
York
until
the
State
adopts
the
modification.
It
is
EPA's
understanding
that
subsequent
to
the
promulgation
of
the
final
rule,
New
York
intends
to
propose
rules
or
other
legal
mechanisms
to
provide
the
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/
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Rules
exclusion.
EPA
may
not
enforce
these
requirements
until
it
approves
the
State
requirements
as
a
revision
to
the
authorized
State
program.

List
of
Subjects
in
40
CFR
Part
261
Environmental
protection,
Hazardous
materials,
Waste
treatment
and
disposal,
Recycling.

Dated:
April
4,
2003.
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.
The
threshold
concentrations
are
as
follows:

Arsenic
3.0
mg/
kg
Cadmium
2.0
mg/
kg
Chromium
(
total)
22.9
mg/
kg
Cyanide
(
amenable)
0.815
mg/
kg
Cyanide
(
total)
0.815
mg/
kg
Lead
18.8
mg/
kg
Nickel
10.4
mg/
kg
Silver
2.1
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)
 
(
vi)
of
this
section
for
the
duration
of
the
project.
(
viii)
Should
any
of
the
conditions
of
paragraphs
(
a)(
22)(
i)
 
(
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
[
DATE
FIVE
YEARS
FROM
EFFECTIVE
DATE
OF
FINAL
RULE].
*
*
*
*
*
[
FR
Doc.
03
 
9047
Filed
4
 
11
 
03;
8:
45
am]

BILLING
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