IBM Semiconductor Manufacturing Facility in Essex Junction, VT, Under Project XL, 35944-35946 [E8-14403]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 73, Number 123 (Wednesday, June 25, 2008)]
[Rules and Regulations]
[Pages 35944-35946]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-14403]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[FRL-8684-9]


IBM Semiconductor Manufacturing Facility in Essex Junction, VT, 
Under Project XL

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is withdrawing a 
final rule published on September 12, 2000 which modified the 
regulations under the Resource, Conservation and Recovery Act (RCRA) to 
enable the implementation of the International Business Machines 
Corporation (IBM) Copper Metallization project that was developed under 
EPA's Project eXcellence in Leadership (Project XL) program. Project XL 
was a national pilot program that allowed state and local governments, 
businesses and federal facilities to work with EPA to develop more 
cost-effective ways of achieving environmental and public health 
protection. In exchange, EPA provided regulatory, policy or procedural 
flexibilities to conduct the pilot experiments.

DATES: The final rule is effective July 25, 2008.

FOR FURTHER INFORMATION CONTACT: Sandra Panetta, Mail Code 1870T, U.S. 
Environmental Protection Agency, Office of Policy, Economics and 
Innovation, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Ms. 
Panetta's telephone number is (202) 566-2184 and her e-mail address is 
panetta.sandra@epa.gov. Further information on today's action may also 
be obtained on the internet at https://www.epa.gov/projectxl/ibm2/
index.htm.

SUPPLEMENTARY INFORMATION: EPA is withdrawing the final rule which was 
published on September 12, 2000 (65 FR 54955) in response to IBM's 
request to discontinue the XL project. The final rule granted IBM an 
exemption under Project XL from the F006 hazardous listing for sludge 
generated from the treatment of copper electroplating rinsewaters. IBM 
has implemented a new process step that has caused the wastewater 
treatment sludge to once again become F006 listed hazardous waste and 
is complying with the Vermont Department of Environmental Conservation 
requirements for this listed waste. Discontinuing the XL project will 
have no environmental impact. All reporting requirements in 40 CFR 
261.4(b)(16) are discontinued.
    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the agency may issue a rule

[[Page 35945]]

without providing notice and an opportunity for public comment. EPA has 
determined that there is good cause for making today's rule final 
without prior proposal and opportunity for comment because EPA is 
withdrawing a rule that no longer applies to the company and the 
company has notified us that the project has terminated. The removal of 
the rule has no legal effect. Notice and public procedure would serve 
no useful purpose and is thus unnecessary. EPA finds that this 
constitutes good cause under 5 U.S.C. 553(b)(B).

Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., 
because it is withdrawing a rule that was not implemented and does not 
impose any new requirements.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    Today's final rule is not subject to the Regulatory Flexibility Act 
(RFA), which generally requires an agency to prepare a regulatory 
flexibility analysis for any rule that will have a significant economic 
impact on a substantial number of small entities. The RFA applies only 
to rules subject to notice and comment rulemaking requirements under 
the Administrative Procedure Act (APA) or any other statute. This rule 
is not subject to notice and comment requirements under the APA or any 
other statute because it withdraws a rule that applied to only one 
facility and does not impose any new requirements. Because the agency 
has made a ``good cause'' finding that this action is not subject to 
notice-and-comment requirements under the Administrative Procedure Act 
or any other statute [see SUPPLEMENTARY INFORMATION section], it is not 
subject to the regulatory flexibility provisions of the Regulatory 
Flexibility Act (5 U.S.C. 601 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 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 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.
    Today's rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The rule imposes no enforceable duty 
on any State, local or tribal governments or the private sector. (Note: 
The term ``enforceable duty'' does not include duties and conditions in 
voluntary federal contracts for goods and services.) Because the agency 
has made a ``good cause'' finding that this action is not subject to 
notice-and-comment requirements under the Administrative Procedure Act 
or any other statute [see SUPPLEMENTARY INFORMATION section], it is not 
subject to sections 202 and 205 of the Unfunded Mandates Reform Act of 
1995 (UMRA) (Pub. L. 104-4).

E. 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.''
    This final 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 levels of government, 
as specified in Executive Order 13132. This rule withdraws a rule that 
was specific to one facility. Thus, Executive Order 13132 does not 
apply to this rule.

F. 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 9, 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.'' This final rule does not have 
tribal implications, as specified in Executive Order 13175. This final 
rule withdraws a rule that was not

[[Page 35946]]

implemented. Thus, Executive Order 13175 does not apply to this rule.

G. 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. EPA interprets Executive Order 
13045 as applying only to those regulatory actions that are based on 
health or safety risks, such that the analysis required under section 
5-501 of the Order has the potential to influence the regulation. This 
rule is not subject to Executive Order 13045 because it does not 
establish an environmental standard intended to mitigate health or 
safety risks.

H. Executive Order 13211 (Energy Effects)

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer Advancement Act

    As noted in the proposed rule, 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. This action does not involved 
technical standards. Therefore, EPA did not consider the use of any 
voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States. EPA has determined that this final 
rule will not have disproportionately high and adverse human health or 
environmental effects on minority or low-income populations because it 
does not affect the level of protection provided to human health or the 
environment. This rule applies to one facility and withdraws a rule 
that was not implemented.

K. The Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. Section 804 exempts from section 801 the following types 
of rules (1) rules of particular applicability; (2) rules relating to 
agency management or personnel; and (3) rules of agency organization, 
procedure, or practice that do not substantially affect the rights or 
obligations of non-agency parties. 5 U.S.C. 804(3). EPA is not required 
to submit a rule report regarding today's action under section 801 
because it is a rule of particular applicability and does not impose 
any new requirements.

List of Subjects in 40 CFR Part 261

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

    Dated: June 19, 2008.
Stephen L. Johnson,
Administrator.

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For the reasons set forth in the preamble, parts 261 of chapter I of 
title 40 of the Code of Federal Regulations are amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
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.


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2. Section 261.4 paragraph (b)(16) is removed and reserved.

 [FR Doc. E8-14403 Filed 6-24-08; 8:45 am]
BILLING CODE 6560-50-P