[Federal Register Volume 62, Number 212 (Monday, November 3, 1997)]
[Rules and Regulations]
[Pages 59287-59290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29052]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 260
[FRL-5916-3]
Project XL Site-Specific Rulemaking for Molex, Inc., 700 Kingbird
Road Facility, Lincoln, NE
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: The EPA is proposing to implement a project under the Project
XL program for the Molex, Inc. (Molex) facility located at 700 Kingbird
Road, Lincoln, NE. The terms of the project are defined in a draft
Final Project Agreement (FPA) which is being made available for public
review and comment by this document. Also, EPA is making available for
informational purposes a draft variance by the Nebraska Department of
Environmental Quality necessary for implementation of the project. In
addition, EPA is today promulgating a direct final site-specific rule,
applicable only to the Molex facility, to facilitate implementation of
the project. Also in today's Federal Register, EPA is publishing a
proposed rule identical to this direct final rule. By this document,
EPA solicits comment on the direct final rule, the draft variance, the
draft FPA, and the project generally. Public notice is also being
provided locally.
This direct final site-specific rule is intended to provide
regulatory changes under the Resource Conservation and Recovery Act
(RCRA) to implement Molex's XL project, which will result in superior
environmental performance and, at the same time, provide Molex with
greater operational flexibility. The flexibility provided by Project XL
will allow the facility to segregate waste streams which had previously
been co-mingled into a single waste stream. By changing the process
lines to generate separate waste streams (nickel, copper, tin/lead),
the facility can optimize the precipitation of each metal more
effectively before the effluent is sent to the POTW. The environmental
benefit from the project will be a substantial reduction in the mass
loading of metals entering the City of Lincoln's POTW. In addition, the
resultant mono-metal sludges will be commodity-like materials suitable
for recycling by smelters. A secondary environmental benefit will be
increased recycling and reducing the amount of material that would
otherwise be landfilled. The site-specific rule, applicable only to the
Molex facility, would change certain RCRA requirements so the
implementing agency, the Nebraska Department of Environmental Quality,
may issue a temporary variance from classifying as solid waste nickel,
copper, and tin/lead non-precious metals containing sludges generated
by Molex.
DATES: This action will be effective January 2, 1998, unless adverse
comments are received by December 3, 1997. If the effective date is
delayed, timely notice will be published in the Federal Register.
Public Hearing. A public hearing will be held, if requested, to
provide interested persons an opportunity for oral presentation of
data, views, or arguments concerning this direct final rule to
implement Molex's XL project. If anyone contacts the EPA requesting to
speak at a public hearing by November 24, 1997, a public hearing will
be held at 7:00 p.m. on December 15, 1997. EPA will determine no later
than November 28, 1997 whether a public hearing will be held.
Additional information is provided in the section entitled ADDRESSES.
Request to Speak at Hearing. Persons wishing to present oral
testimony must contact Mr. David Doyle at the EPA by November 24, 1997.
Additional information is provided in the section entitled ADDRESSES.
ADDRESSES: Comments. Written comments should be submitted in duplicate
to: Mr. David Doyle, U.S. Environmental Protection Agency, Region VII,
Air, RCRA & Toxics Division, 726 Minnesota Avenue, Kansas City, KS
66101, (913) 551-7667.
Docket. A docket containing supporting information used in
developing this direct final rulemaking is available for public
inspection and copying at U.S. EPA, Region VII, Air, RCRA & Toxics
Division, 726 Minnesota Avenue, during normal business hours, and at
EPA's Water docket (Docket name ``XL-Molex''); 401 M Street, SW,
Washington, DC 20460. For access to the Water docket materials, call
(202) 260-3027 between 9:00 a.m. and 3:30 p.m. (Eastern time) for an
appointment. A reasonable fee may be charged for copying. A docket is
also available for public inspection at the Nebraska Department of
Environmental Quality, Lincoln, NE.
Public Hearing. If a public hearing is held, it will be held at
7:00 p.m. on December 15, 1997 at the following location: Nebraska
Department of Environmental Quality, Lincoln, NE. Persons interested in
whether a hearing will be held should contact Mr. David Doyle, (913)
551-7667, after November 28, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. David Doyle, U.S. Environmental
Protection Agency, Region VII, Air, RCRA & Toxics Division, 726
Minnesota Avenue, Kansas City, KS 66101, (913) 551-7667.
SUPPLEMENTARY INFORMATION:
Outline of This Document
I. Authority
II. Background
A. Overview of Project XL
B. Overview of the Molex XL Project
1. Introduction
2. Molex XL Project Description
3. Environmental Benefits
4. Stakeholder Involvement
III. Resource Conservation and Recovery Act Requirements
IV. Additional Information
A. Public Hearing
B. Executive Order 12866
C. Regulatory Flexibility
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
I. Authority
This regulation is being promulgated under the authority of
sections 1004, 2002, 3001-3007, and 3010 of the Solid Waste Disposal
Act of 1970, as amended by the Resource Conservation and Recovery Act,
as amended (42 U.S.C. 6903, 6912, 6921-6927, and 6930).
II. Background
A. Overview of Project XL
This site-specific rule is designed to implement a project
developed under Project XL, an important EPA initiative to allow
regulated entities to achieve better environmental results at less
cost.
[[Page 59288]]
Project XL--for ``eXcellence and Leadership''--was announced on March
16, 1995, as a central part of the National Performance Review's and
EPA's effort to reinvent environmental protection. See 60 FR 27282 (May
23, 1995). In addition, on April 22, 1997, EPA modified its guidance on
Project XL, solicited new XL proposals, clarified EPA definitions, and
described changes intended to bring greater efficiency to the process
of developing XL projects. See 62 FR 19872 (April 22, 1997).
Project XL provides a limited number of private and public
regulated entities an opportunity to develop their own pilot projects
to provide 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 the Agency's ability to test new
regulatory strategies that reduce regulatory burden and promote
economic growth while achieving better environmental and public health
protection. The Agency intends to evaluate the results of this and
other Project XL projects to determine which specific elements of the
project, if any, should be more broadly applied to other regulated
entities to the benefit of both the economy and the environment.
In 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. To participate in Project XL, applicants must develop
alternative pollution reduction strategies pursuant to eight criteria--
superior environmental performance; cost savings and paperwork
reduction; local stakeholder involvement and support; test of an
innovative strategy; transferability; feasibility; identification of
monitoring, reporting and evaluation methods; and avoidance of shifting
risk burden. They must have full support of affected Federal, state and
tribal agencies to be selected. The XL program is intended to allow EPA
to experiment with untried, 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 required to undertake 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 statutes that it implements. EPA may also modify rules
that represent one of several possible policy approaches within a more
general statutory directive, so long as the alternative being used is
permissible under the statute. Adoption of such alternative approaches
or interpretations in the context of a given XL project does not,
however, signal EPA's willingness to adopt that interpretation as a
general matter, or even in the context of other XL projects. It would
be inconsistent with the forward-looking nature of these pilot projects
to adopt such innovative approaches prematurely on a widespread basis
without first finding out whether or not they are viable in practice
and successful in the particular projects that embody them.
Furthermore, as EPA indicated in announcing the XL program, the Agency
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 (so long as the Agency acts within the
discretion allowed by the statute). Congress' recognition that there is
a need for experimentation and research, as well as ongoing re-
evaluation of environmental programs, is reflected in a variety of
statutory provisions, such as sections 101(b) and 103 of the Clean Air
Act. In some cases, as in this XL project, such experimentation
requires an alternative regulatory approach that, while permissible
under the statute, was not the one adopted by EPA historically or for
general purposes.
B. Overview of the Molex XL Project
1. Introduction
Today's direct final site-specific rule supports a Project XL draft
Final Project Agreement (FPA) and the Nebraska Department of
Environmental Quality draft variance that have been developed by the
Molex XL stakeholder group, namely Molex, Inc. (Molex), EPA, Nebraska
Department of Environmental Quality (NDEQ), Lincoln/Lancaster County
Health Department and the City of Lincoln, NE. The draft FPA and NDEQ
draft variance are available for review in the docket for today's
action and also are available on the world wide web at http://
www.epa.gov/ProjectXL. The proposed FPA outlines how the project
addresses the eight Project XL criteria, in particular how the project
will produce, measure, monitor, report, and demonstrate superior
environmental benefits. The NDEQ draft variance is the implementation
mechanism for the project.
In today's action, the Agency is soliciting comment on the site-
specific regulatory changes to implement the project. EPA also seeks
comment on the proposed FPA, which is available on the world wide web
and in the docket file for today's action, in light of the criteria
outlined in the Agency's May 23, 1995, Federal Register notice (60 FR
27282) regarding Regulatory Reinvention (XL) Pilot Projects and April
22, 1997 Federal Register notice (62 FR 19872) Those criteria are: (1)
Environmental performance superior to what would be achieved through
compliance with current and reasonably anticipated future regulations;
(2) cost savings or economic opportunity, and/or decreased paperwork
burden; (3) stakeholder support; (4) test of innovative strategies for
achieving environmental results; (5) approaches that could be evaluated
for future broader application; (6) technical and administrative
feasibility; (7) mechanisms for monitoring, reporting, and evaluation;
and (8) consistency with Executive Order 12898 on Environmental Justice
(avoidance of shifting of risk burden).
2. Molex XL Project Description
Molex is a multinational company that operates several
electroplating facilities worldwide. Molex as part of its proposal has
upgraded its facility in Lincoln, NE by changing its waste water
treatment system to allow it to optimize the recovery of metals used in
the electroplating processes. Once operating this system under the
project, the primary environmental benefit will be the reduction of
metals loading in the effluent discharges into the publicly owned
treatment works (POTW). A secondary environmental benefit will be
increased recycling and reducing the amount of material that would
otherwise be landfarmed.
This project is an alternative environmental compliance strategy
that encompasses technical changes to the
[[Page 59289]]
facility's wastewater treatment system, environmental improvements in
the effluent to the POTW, regulatory relief for the facility for
storage and shipment of wastes, and documentation of the technical,
environmental and economic impacts of the alternative strategy.
The facility generates several metals-bearing wastewater streams
that formerly were brought together for combined treatment. Metals
recovery in such a system is limited because each metal has its own
optimal set of treatment conditions. At its new facility Molex is
operating a segregated treatment system that separately treats each
metal waste stream to optimize the precipitation of each metal
contaminant to more effectively remove metals from the effluent to the
POTW. Molex has made its investment in the system in anticipation of
its participation in the XL program and the regulatory relief it will
provide. At the new facility Molex changed the process lines to
generate separate treatment sludges for nickel, copper, and tin/lead.
The environmental benefit will be a substantial reduction in the mass
loading of metals entering the City of Lincoln's POTW. In addition, the
resultant mono-metal sludges will be commodity-like materials suitable
for recycling by smelters. However, the segregated system will cost
more to operate than a combined treatment system. Additionally, the
segregated system will result in increased costs from compliance with
the current regulations for handling the resultant sludges. Currently,
Molex is handling the sludges as hazardous wastes. Without the
regulatory relief provided in this project, Molex will not be able to
financially justify continued operation of the segregated system.
3. Environmental Benefits
This project supports goals of both the Federal Water Pollution
Control Act (FWPCA), Nebraska Surface Water Quality Standards, Resource
Conservation and Recovery Act (RCRA) and the Nebraska Hazardous Waste
Management Program.
This project supports the FWPCA and Nebraska Surface Water Quality
Standards goals to restore and maintain the chemical, physical and
biological integrity of the Nation's and State's waters. Specifically,
this project reduces the metals loading effluent into the City of
Lincoln, NE's POTW, thus reducing metals discharges from the POTW into
the nation's and State's waters and metals constituents in the POTW
sludge that ultimately is landfarmed. Additionally, the reduced loading
maintains the reserve treatment capacity of the POTW, thus deferring
the replacement or enlargement of the publicly financed construction.
This project also supports the RCRA and Nebraska Hazardous Waste
Management Program goals of resource recovery and conservation.
Specifically, this project results in direct recycling of mono-metals
bearing sludges by smelters, which will decrease the need for mining of
ores or other virgin materials, thus conserving mineral resources and
reducing the amount of materials that would otherwise be landfarmed.
4. Stakeholder Involvement
The participating stakeholders are the signatories to this FPA. In
addition, the Lincoln/Lancaster County Health Department and the City
of Lincoln, Nebraska have supported the development of this project.
Also, the public has been notified from the outset of this project and
invited to participate, and will continue to be informed as the project
is implemented through dissemination of the reports submitted by Molex
to NDEQ and EPA.
III. Resource Conservation and Recovery Act Requirements
A. Summary of Regulatory Changes for the Molex XL Project
The NDEQ hazardous waste program has been authorized by EPA
pursuant to the Resource Conservation and Recovery Act (RCRA) Section
3006(b) and 40 CFR Part 271, to carry out the Nebraska program in lieu
of the Federal hazardous waste program. Sludges from Molex's former
combined treatment system contain copper, nickel, tin, lead, and gold.
The gold content of the materials has allowed Molex to handle the
combined treatment sludge as ``recyclable materials'' from which
precious metals are reclaimed under Title 128, Rules and Regulations
Governing Hazardous Waste Management in Nebraska, Chapter 7, Section
010.
Except for a small quantity of sludge generated from the gold
plating operation, the sludges at the new facility will not contain
precious metals and therefore will not qualify as ``recyclable
material'' from which precious metals are reclaimed. As such, in the
absence of this regulatory relief, the materials will be subject to the
NDEQ Title 128 generator requirements for storage and shipment of
hazardous wastes, at considerably greater expense for storage, shipment
and disposal/recycling as compared to the precious metals exemption.
With the regulatory relief, Molex will be allowed to handle the non-
precious mono-metals sludges as a commodity-like material with
substantially reduced regulatory compliance costs.
To accomplish the regulatory relief, the U.S. EPA today is
promulgating a direct final site-specific rule to amend 40 CFR
260.31(c), which provides that authorized state agencies may:
``* * * grant requests for a variance from classifying as a solid
waste those materials that have been reclaimed but must be reclaimed
further before recovery is completed if, after initial reclamation,
the resulting material is commodity-like (even though it is not yet
a commercial product, and has to be reclaimed further).''
The federal site-specific rule will provide that the nickel,
copper, and tin/lead non-precious metals bearing sludges generated at
the Molex facility may qualify for a regulatory variance from NDEQ. The
site-specific rule will also provide that the variance may be issued on
a temporary basis by NDEQ.
IV. Additional Information
A. Public Hearing
A public hearing will be held, if requested, to provide opportunity
for interested persons to make oral presentations regarding the direct
final rule. Persons wishing to make oral presentation on the rule to
implement Molex's XL project should contact the EPA at the address
given in the ADDRESSES section of this document. Any member of the
public may file a written statement before, during, or within 30 days
after the hearing. 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 will be available for inspection and copying during normal
business hours at the EPA addresses given in the ADDRESSES section of
this document.
B. Executive Order 12866
Because this rule only affects one facility it is not a rule of
general applicability subject to OMB review under E.O. 12866. In
addition, OMB has agreed that they do not need to review site specific
rules under Project XL.
C. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) 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
[[Page 59290]]
small governmental jurisdictions. This rule would not have a
significant impact on a substantial number of small entities because it
only affects one entity, the Molex facility in Lincoln, NE. Therefore,
EPA certifies that this action will not have a significant economic
impact on a substantial number of small entities.
D. Paperwork Reduction Act
This action applies only to one company, and therefore requires no
information collection activities subject to the Paperwork Reduction
Act, and therefore no information collection request (ICR) will be
submitted to the Office of Management and Budget (OMB) for review in
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
E. 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.
As noted above, this rule is limited to Molex's facility in
Lincoln, NE. 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.
List of Subjects in 40 CFR Part 260
Environmental protection, Hazardous waste, Treatment storage and
disposal facility, Waste determination.
Dated: October 27, 1997.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble of this rule, chapter I
of title 40 of the Code of Federal Regulations is amended as follows:
1. The authority citation for part 260 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
2. Section 260.31 is amended by adding paragraph (d) to read as
follows:
Sec. 260.31 Standards and criteria for variances from classification
as a solid waste.
* * * * *
(d) Pursuant to participation by Molex, Inc. in the Project XL
program (May 23, 1995 and April 22, 1997), and for a period not to
exceed two years, the Nebraska Department of Environmental Quality may
grant to the Molex, Inc. facility located at 700 Kingbird Road in
Lincoln, NE, a temporary variance from classifying as a solid waste the
commodity-like nickel, copper, and tin/lead non-precious metals bearing
sludges generated at the facility.
[FR Doc. 97-29052 Filed 10-31-97; 8:45 am]
BILLING CODE 6560-50-U
