65FR37739A Project XL Site-Specific Rulemaking for the IBM Semiconductor Manufacturing Facility in Essex Junction, VT, Part 2/2
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Posting-number: Volume 65, Issue 117, Page 37739A, Part 1
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input of stakeholders will be sought and a Federal Register notice will
be published). Any Project Signatory may terminate its participation in
this project at any time in accordance with the procedures set forth in
the FPA. The project will be completed at the conclusion of the five-
year anniversary of the final rulemaking or at a time earlier or later
determined by the amount of information gathered to date and the
interest of the parties involved.
Upon completion of the project term, EPA and VTDEC commit to
evaluating the project. If the project results indicate that it was a
success, EPA will consider transferring the regulatory flexibility (or
some similar flexibility) to the national RCRA program (through
rulemaking procedures). Should the project results indicate that the
project was not successful, EPA will promulgate a rule to remove the
site-specific exemption. Absent any regulatory action on the part of
the Agency, the implementing rule (i.e., the site-specific exemption)
will remain in effect as long as IBM continues to meet its conditions
(i.e., EPA and VTDEC intend to allow IBM to continue operating under
the site-specific rule). However, as for any conditional exemption, if
at any time, should IBM fail to meet the conditions of the site-
specific exemption, the exemption is not applicable. Also, the Agency
may promulgate a rule to withdraw the exemption at any time, subject to
the procedures agreed to in the Final Project Agreement (FPA),
including, but not limited to, a substantial failure on the part of any
Project Signatory to comply with the terms and conditions of the FPA or
if the exemption becomes inconsistent with future statutory or
regulatory requirements.
IV. Additional Information
A. How To Request a Public Hearing
A public hearing will be held, if requested, to provide an
opportunity for interested persons to make oral presentations regarding
this regulation in accordance with 40 CFR part 25. Persons wishing to
make an oral presentation on the site-specific rule to implement the
IBM Vermont XL project should contact Mr. John Moskal or Mr. George
Frantz of the EPA New England office, at the address given in the
ADDRESSES section of this document. Any member of the public may file a
written statement before the hearing, or after the hearing, to be
received by EPA no later than June 30, 2000. Written statements should
be sent to EPA at the addresses given in the ADDRESSES section of this
document. If a public hearing is held, a verbatim transcript of the
hearing, and written statements provided at the hearing will be
available for inspection and copying during normal business hours at
the EPA addresses for docket inspection given in the ADDRESSES section
of this preamble.
B. How Does This Rule Comply With Executive Order 12866?
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs of the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Because the annualized cost of this final rule will be
significantly less than $100 million and will not meet any of the other
criteria specified in the Executive Order, it has been determined that
this rule is not a ``significant regulatory action'' under the terms of
Executive Order 12866, and is therefore not subject to OMB review.
Executive Order 12866 also encourages agencies to provide a
meaningful public comment period, and suggests that in most cases the
comment period should be 60 days. However, in consideration of the very
limited scope of today's rulemaking and the considerable public
involvement in the development of the proposed Final Project Agreement,
EPA considers 30 days to be sufficient in providing a meaningful public
comment period for today's action.
C. Is a Regulatory Flexibility Analysis Required?
The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq.,
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. This rule will not
have a significant impact on a substantial number of small entities
because it only affects the IBM facility in Essex Junction, VT and it
is not a small entity. Therefore, EPA certifies that this action will
not have a significant economic impact on a substantial number of small
entities.
D. Is an Information Collection Request Required for This Project Under
the Paperwork Reduction Act?
This action applies only to one facility, and therefore requires no
information collection activities subject to the Paperwork Reduction
Act, and therefore no information collection request (ICR) will be
submitted to OMB for review in compliance with the Paperwork Reduction
Act, 44 U.S.C. 3501, et seq.
E. Does This Project Trigger the Requirements of the Unfunded Mandates
Reform Act?
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small
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government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
As noted above, this rule is applicable only to one facility in
Vermont. EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. EPA has also determined that this rule does not contain a
Federal mandate that may result in expenditures of $100 million or more
for State, local, and tribal governments, in the aggregate, or the
private sector in any one year. Thus, today's rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
F. RCRA & Hazardous and Solid Waste Amendments of 1984
1. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program for hazardous waste within the
State. (See 40 CFR part 271 for the standards and requirements for
authorization.) States with final authorization administer their own
hazardous waste programs in lieu of the Federal program. Following
authorization, EPA retains enforcement authority under sections 3008,
7003 and 3013 of RCRA.
After authorization, Federal rules written under RCRA (non-HSWA),
no longer apply in the authorized state except for those issued
pursuant to the Hazardous and Solid Waste Act Amendments of 1984
(HSWA). New Federal requirements imposed by those rules do not take
effect in an authorized State until the State adopts the requirements
as State law.
In contrast, under section 3006(g) of RCRA, new requirements and
prohibitions imposed by HSWA take effect in authorized States at the
same time they take effect in nonauthorized States. EPA is directed to
carry out HSWA requirements and prohibitions in authorized States until
the State is granted authorization to do so.
2. Effect on Vermont Authorization
Today's proposed rule, if finalized, will be promulgated pursuant
to non-HSWA authority, rather than HSWA. Vermont has received authority
to administer most of the RCRA program; thus, authorized provisions of
the State's hazardous waste program are administered in lieu of the
Federal program. Vermont has received authority to administer the
regulations that specifically identify hazardous wastes by listing
them. As a result, if today's proposed rule to modify the listing for
F006 hazardous waste is finalized, it would not be effective in Vermont
until the State adopts the modification. It is EPA's understanding that
subsequent to the promulgation of this rule, Vermont intends to propose
rules or other legal mechanisms to provide the exemption for the copper
metallization process from the F006 listing description. EPA may not
enforce these requirements until it approves the State requirements as
a revision to the authorized State program.
G. How Does This Rule Comply With Executive Order 13045: Protection of
Children From Environmental Health Risks and Safety Risks?
The Executive Order 13045, ``Protection of Children from
Environmental Health Risks and Safety Risks'' (62 FR 19885, April 23,
1997) applies to any rule that: (1) Is determined to be ``economically
significant,'' as defined under Executive Order 12866; and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children, and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule, as defined by Executive Order 12866,
and because it does not involve decisions based on environmental health
or safety risks.
H. Does This Rule Comply With Executive Order 13132: Federalism?
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the regulation. EPA may also not issue a regulation that has
federalism implications and that preempts State law, unless the Agency
consults with the State and local officials early in the process of
developing the regulation.
This proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States. Or on the distribution
of power and responsibilities among the various level of government, as
specified in Executive Order 13132. The exemption outlined in today's
proposed rule will not take effect unless Vermont chooses to adopt the
rule or other legal implementing mechanism. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule. Although
section 6 of Executive Order 13132 does not apply to this rule, EPA did
fully coordinate and consult with the state and local officials in
developing this rule.
I. How Does This Rule Comply With Executive Order 13084: Consultation
and Coordination With Indian Tribal Governments?
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments to provide meaningful and timely input in the
development of
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regulatory policies on matters that significantly or uniquely affect
their communities. Today's rule does not significantly or uniquely
affect the communities of Indian tribal governments. There are no
communities of Indian tribal governments located in the vicinity of the
facility. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this rule.
J. Does This Rule Comply With the National Technology Transfer and
Advancement Act?
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standard. This
proposed rulemaking does not involve technical standards. Therefore,
EPA is not considering the use of any voluntary consensus standards.
EPA welcomes comments on this aspect of the proposed rulemaking and,
specifically, invites the public to identify potentially-applicable
voluntary consensus standards and to explain why such standards should
be used in this regulation.
List of Subjects in 40 CFR Part 261
Environmental protection, Hazardous materials, Recycling, Waste
treatment and disposal.
Dated: June 8, 2000.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, part 261 of Chapter I of
Title 40 of the Code of Federal Regulations is proposed to be amended
as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and
6938.
2. Section 261.4 is amended by adding paragraph (b)(16) to read as
follows:
Sec. 261.4 Exclusions.
* * * * *
(b) * * *
(16) Sludges resulting from the treatment of wastewaters (not
including spent plating solutions) generated by the copper
metallization process at the International Business Machines
Corporation (IBM) semiconductor manufacturing facility in Essex
Junction, VT, are exempt from the F006 listing, provided that:
(i) IBM provides the Agency with semi-annual reports (by January 15
and July 15 of each year) detailing constituent analyses measuring the
concentrations of volatiles, semi-volatiles, and metals using methods
presented in part 264, Appendix IX of this chapter of both the plating
solution utilized by, and the rinsewaters generated by, the copper
metallization process;
(ii) IBM provides the agency with semi-annual reports (by January
15 and July 15 of each year), through the year 2004, or when IBM has
achieved its facility wide goal of a 50% reduction in greenhouse gas
emissions from a 1995 base year (when normalized to production),
whichever is first, that contain the following:
(A) Estimated greenhouse gas emissions, and estimated greenhouse
gas emission reductions. Greenhouse gas emissions will be reported in
terms of total mass emitted and mass emitted normalized to production;
and
(B) The number of chemical vapor deposition chambers used in the
semiconductor manufacturing production line that have been converted to
either low flow C<INF>2</INF>F<INF>6</INF> or NF<INF>3</INF> during the
reporting period and the number of such chambers remaining to be
converted to achieve the facility goal for global warming gas emission
reductions.
(iii) No significant changes are made to the copper metallization
process such that any of the constituents listed in 40 CFR part 261,
appendix VII as the basis for the F006 listing are introduced into the
process.
* * * * *
[FR Doc. 00-15154 Filed 6-15-00; 8:45 am]
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