FR Doc 03-28783

[Federal Register: November 25, 2003 (Volume 68, Number 227)]
[Proposed Rules]
[Page 66163-66230]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25no03-24]

[[Page 66163]]

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Part II

Environmental Protection Agency

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40 CFR Parts 148, 261, 268, 271, and 302

Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Dyes and/or Pigments Production Wastes; Land Disposal
Restrictions for Newly Identified Wastes; CERCLA Hazardous Substance
Designation and Reportable Quantities; Designation of Five Chemicals as
Appendix VIII Constituents; Addition of Five Chemicals to the Treatment
Standards of F039 and the Universal Treatment Standards; Proposed Rule

[[Page 66164]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 148, 261, 268, 271, and 302

[RCRA-2003-0001; SWH-FRL-7587-6]
RIN 2050-AD80

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to list
nonwastewaters from the production of certain dyes, pigments, and FD&C
colorants as hazardous wastes under the Resource Conservation and
Recovery Act (RCRA), which directs EPA to determine whether these
wastes present a hazard to human health or the environment. EPA is
proposing a mass loading-based approach for these wastes. Under this
approach, these wastes are hazardous if they contain any of the
constituents of concern at annual mass loading levels that meet or
exceed regulatory levels. If generators determine that their wastes are
below regulatory levels for all constituents of concern, then their
wastes are nonhazardous. If their wastes meet or exceed the regulatory
levels for any of eight specific constituents of concern, the wastes
must be managed as listed hazardous wastes. However, even if the wastes
meet or exceed the regulatory levels, the wastes would not be hazardous
if two conditions are met: The wastes do not meet or exceed annual mass
loadings for toluene-2,4-diamine, and the wastes are disposed in a
Subtitle D landfill cell subject to the municipal solid waste landfill
design criteria or in a Subtitle C landfill cell subject to applicable
design criteria. When mass loadings meet or exceed the specified annual
levels, the generator may still manage as nonhazardous all wastes
generated up to the loading limit.
This proposal would also add the toxic constituents o-anisidine, p-
cresidine, 1,2-phenylenediamine, 1,3-phenylenediamine, and 2,4-
dimethylaniline associated with these identified wastes to the list of
constituents that serves as the basis for classifying wastes as
hazardous. In addition, this proposal would establish treatment
standards for the wastes.
If these dyes and/or pigments production wastes are listed as
hazardous waste, then they will be subject to stringent management and
treatment standards under Subtitle C of RCRA.
Additionally, this action proposes to designate these wastes as
hazardous substances subject to the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA). The proposal would
not adjust the one pound statutory reportable quantity (RQ) for K181
waste, nor would EPA develop a ``reference RQ'' for the new
constituents identified for K181.
Other actions proposed in this notice would add o-anisidine, p-
cresidine, 1,3-phenylenediamine, toluene-2,4-diamine, and 2,4-
dimethylaniline to the treatment standards applicable to multisource
leachate and also to add these chemicals to the Universal Treatment
Standards. As a result, a single waste code would continue to be
applicable to multisource landfill leachates and residues of
characteristic wastes would require treatment when any of these
chemicals are present above the proposed land disposal treatment
standards.

DATES: EPA will accept public comments on this proposed rule until
February 23, 2004. Comments postmarked after this date will be marked
``late'' and may not be considered. Any person may request a public
hearing on this proposal by filing a request with Mr. Robert Dellinger,
whose address appears below, by December 9, 2003. Consult the sources
of information in FOR FURTHER INFORMATION CONTACT for the time and
location of the hearing, if such hearing is requested.

ADDRESSES: Comments may be submitted by mail to: OSWER Docket,
Environmental Protection Agency, Mailcode: 5305T, 1200 Pennsylvania
Ave., NW., Washington, DC, 20460, Attention Docket ID No. RCRA-2003-
0001. Comments may also be submitted electronically, by facsimile, or
through hand delivery/courier. Follow the detailed instructions as
provided in the SUPPLEMENTARY INFORMATION section.
If you would like to file a request for a public hearing on this
proposal, please submit your request to Mr. Robert Dellinger at: Office
of Solid Waste, Hazardous Waste Identification Division (5304W), U.S.
Environmental Protection Agency, 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460, (703) 308-7271 or via email at dellinger.robert@epa.gov.
See the beginning of the SUPPLEMENTARY INFORMATION section for
information on how to submit your comments as well as view public
comments and supporting materials.

FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Call Center at (800) 424-9346 or TDD (800) 553-7672 (hearing
impaired). In the Washington, DC, metropolitan area, call (703) 412-
9810 or TDD (703) 412-3323 or review our Web site at http://www.epa.gov/epaoswer/hazwaste/id/dyes/index.htm.
For information on
specific aspects of the rule, contact Ms. Gwen DiPietro of the Office
of Solid Waste (5304W), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail address and telephone number: dipietro.gwen@epa.gov, (703) 308-8285). For technical
information on the CERCLA aspects of this rule, contact Ms. Lynn
Beasley, Office of Emergency Prevention, Preparedness, and Response,
Emergency Response Center (5204G), U.S. Environmental Protection
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail address and telephone number: beasley.lynn@epa.gov, (703) 603-9086).
For information on the procedures for submitting CBI data, contact Ms.
Regina Magbie (5305W), U.S. Environmental Protection Agency, 1200
Pennsylvania Avenue, NW., Washington, DC 20460, (E-mail address and telephone number: magbie.regina@epa.gov, (703) 308-7909).

SUPPLEMENTARY INFORMATION:

Who Potentially Will Be Affected by This Proposed Rule?

If promulgated as proposed, this regulation could directly impact
businesses that generate and manage certain organic dyes and/or
pigments production wastes. In addition, manufacturers that do not make
dyes or pigments, but that generate wastes containing selected
constituents of concern, may be indirectly impacted. This is because we
are adding new treatment standards for eight chemicals, and we are
adding five new constituents to the list of hazardous constituents on
appendix VIII of part 261. Thus, these actions may result in indirect
impacts on these manufacturers. In addition, landfill owners/operators
who previously accepted these wastes may be indirectly impacted. This
action may also affect entities that need to respond

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to releases of these wastes as CERCLA hazardous substances. Impacts on
potentially affected entities, direct and indirect, are summarized in
section IX of this Preamble. The economics background document,
``Economic Assessment for the Proposed Loadings-Based Listing of Non-
Wastewaters from the Production of Selected Organic Dyes, Pigments, and
Food, Drug, and Cosmetic Colorants,'' presents a comprehensive analysis
of all potentially impacted entities. This document is available in the
docket established in support of today's proposed rule. A summary of
potentially affected businesses is provided in the table below.
Our aim in the table below is to provide a guide for readers
regarding entities likely to be directly regulated, or indirectly
affected by this action. This action, however, may affect other
entities not listed in the table. To determine whether your facility is
regulated or affected by this action, you should examine 40 CFR parts
260 and 261 carefully, along with the proposed regulatory language
amending RCRA. This language is found at the end of this Federal
Register notice. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.

Summary of Facilities Potentially Affected by EPA's 2003 Dyes and/or Pigments Production Waste Listing Proposal
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SIC code NAICS code Industry sector name Estimated number of relevant facilities *
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Directly Impacted
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2865.................................. 325132-1................ Synthetic Organic Dyes.. 37
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325132-4................ Synthetic Organic ............................................................
Pigments, Lakes, and
Toners.
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Indirectly Impacted
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2800.................................. 325..................... Chemical Manufacturing.. Less than 50 facilities total **
(except 2865)......................... (except 325132).........
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4953.................................. 562212.................. Solid Waste Landfills ............................................................
and disposal sites,
nonhazardous.
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5169.................................. 42269................... Other Chemicals and ............................................................
Allied Products
(wholesale).
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SIC--Standard Industrial Classification.
NAICS--North American Industrial Classification System.
* Note: The figures in this column represent individual facilities, not companies.
** Estimate based on 13 expanded scope facilities plus no more than 37 separate solid waste landfills (562212) potentially receiving wastes of concern.

How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this
action under Docket ID No. RCRA-2003-0001. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
The docket for this proposed rulemaking currently contains no
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. If EPA receives such information
in comments or finds that it must use such information, it will place
it in the official docket, but will not make it available to the
public. The official public docket is the collection of materials that
is available for public viewing at the OSWER 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 Public Reading Room is (202)
566-1744, and the telephone number for the OSWER Docket is (202) 566-
0270.
2. 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/, and you can make comments on this proposed rule at the Federal e-rulemaking portal, http://

http://www.regulations.gov.
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 Docket.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not 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 RCRA Docket facility. EPA intends to work toward 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,

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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.

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 provided later in this section. Do not
use EPA Dockets or e-mail to submit CBI or information protected by
statute.
1. 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. RCRA-
2003-0001. 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 rcra-docket@epa.gov, Attention Docket ID No. RCRA-2003-0001. In
contrast to EPA's electronic public docket, EPA's e-mail 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 below. These electronic
submissions will be accepted in WordPerfect or ASCII file format. Avoid
the use of special characters and any form of encryption.
2. By Mail. Send your comments to: OSWER Docket, Environmental
Protection Agency, Mailcode: 5305T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention Docket ID No. RCRA-2003-0001.
3. By Hand Delivery or Courier. Deliver your comments to: EPA
Docket Center, Public Reading Room, Room B102, EPA West Building, 1301
Constitution Avenue, NW., Washington, DC 20004, Attention Docket ID No.
RCRA-2003-0001. Such deliveries are only accepted during the Docket's
normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays).
4. By Facsimile. Fax your comments to: (202) 566-0272, Attention
Docket ID. No. RCRA-2003-0001.

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: RCRA CBI Document Control Officer, Office of Solid Waste
(5305W), U.S. EPA, 1200 Pennsylvania Avenue, NW., Washington, DC 20460,
Attention Docket ID No. RCRA-2003-0001. 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 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.

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

You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.

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6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. 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.

Readable Regulations

Today's proposed hazardous waste listing determination (or
``listing determination'') preamble and regulations are written in
``readable regulations'' format. The authors tried to use active rather
than passive voice, plain language, a question-and-answer format, the
pronouns ``we'' for EPA and ``you'' for the owner/generator, as well as
other techniques, including an acronym list (see below), to make the
information in today's proposed rule easier to read and understand.
This format is part of our efforts toward regulatory reinvention. We
believe that this format will help readers understand the regulations
and foster better relationships between EPA and the regulated
community.

Acronyms
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Acronym Definition
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AOC............................... Areas of Concern
AWQC.............................. Ambient Water Quality Criteria
BDAT.............................. Best Demonstrated Available
Technology
BHP............................... Biodegradation, hydrolysis and
photolysis
BRS............................... Biennial Reporting System
CAA............................... Clean Air Act
CalEPA............................ California Environmental Protection
Agency
CARBN............................. Carbon Absorption
CAS............................... Chemical Abstract Services
CBI............................... Confidential Business Information
CCL............................... Compacted Clay Liner
CERCLA............................ Comprehensive Environmental Response
Compensation and Liability Act
CERCLIS........................... Comprehensive Environmental Response
Compensation and Liability
Information System
CFR............................... Code of Federal Regulations
CHOXD............................. Chemical or Electrolytic Oxidation
CL................................ Clay Lined
CMBST............................. Combustion
CMS............................... Corrective Measures Study
CoC............................... Constituent of Concern
CPMA.............................. Color Pigments Manufacturers
Association
CSF............................... Cancer Slope Factor
CWA............................... Clean Water Act
CWT............................... Centralized Wastewater Treatment
Facility (may also be referred to
as a wastewater treatment facility,
or WWTF)
ED................................ Environmental Defense (previously
the Environmental Defense Fund or
EDF)
EO................................ Executive Order
EP................................ Extraction Procedure
EPA............................... Environmental Protection Agency
EPACMTP........................... EPA's Composite Model for Leachate
Migration with Transformation
Products
EPCRA............................. Emergency Planning and Community
Right-To-Know Act
ETAD.............................. Ecological and Toxicological
Association of Dyes and Organic
Pigments Manufacturers
EU................................ European Union
FB................................ Followed By
FDA............................... Food and Drug Administration
FD&C.............................. Food, Drug and Cosmetic
FR................................ Federal Register
GC/MS............................. Gas Chromatography/Mass Spectroscopy
GCL............................... Geosynthetic Clay Liner
GM................................ Geomembrane
GRAS.............................. Generally Recognized as Safe
HAP............................... Hazardous Air Pollutant
HDPE.............................. High Density Polyethylene
HEAST............................. Health Effects Assessment Summary
Table
HELP.............................. Hydrologic Evaluation of Landfill
Performance
HPLC/MS or UV..................... High Performance Liquid
Chromatography/Mass Spectroscopy or
Ultraviolet Light
HPV............................... High Production Volume
HQ................................ Hazard Quotient
HSWA.............................. Hazardous and Solid Waste Amendments
IACM.............................. International Association of Color
Manufacturers
ICR............................... Information Collection Request
IRIS.............................. Integrated Risk Information System
IWAIR............................. Industrial Waste Air
KG................................ Kilogram
LDR............................... Land Disposal Restriction
MACT.............................. Maximum Achievable Control
Technology
mg/kg............................. Milligram per kilogram
mg/L.............................. Milligram per liter
MINTEQ............................ MINTEQ (model for geochemical
equilibria in ground water)
MSDS.............................. Material Safety Data Sheet

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MSWLF............................. Municipal Solid Waste Landfill
MT................................ Metric Ton
NAICS............................. North American Industrial
Classification System
NAPL.............................. Non-Aqueous Phase Liquid
NCV............................... National Capacity Variance
NESHAP............................ National Emission Standards for
Hazardous Air Pollutants
NL................................ No Liner
NPDES............................. National Pollutant Discharge
Elimination System
NPL............................... National Priority List
NRC............................... National Response Center
NSPS.............................. New Source Protection Standard
NTTAA............................. National Technology Transfer and
Advancement Act
OCPSF............................. Organic Chemicals, Plastics, and
Synthetic Fibers
OMB............................... Office of Management and Budget
OSW............................... Office of Solid Waste
OSWER............................. Office of Solid Waste and Emergency
Response
POTW.............................. Publicly Owned Treatment Works
ppb............................... Parts Per Billion
ppm............................... Parts Per Million
PRA............................... Paperwork Reduction Act
QA................................ Quality Assurance
QC................................ Quality Control
RCRA.............................. Resource Conservation and Recovery
Act
RFA............................... Regulatory Flexibility Act
RfC............................... Reference Concentration
RfD............................... Reference Dose
RFI............................... RCRA Facility Investigation
RFSA.............................. Regulatory Flexibility Screening
Analysis
RODS.............................. Record of Decision System
RQ................................ Reportable Quantity
SBA............................... Small Business Administration
SBREFA............................ Small Business Regulatory
Enforcement Fairness Act
SIC............................... Standard Industry Code
SL................................ Synthetic Liner
SOCMI............................. Synthetic Organic Chemical
Manufacturing Industry
SOP............................... Standard Operating Procedure
SRI............................... Stanford Research Institute
SW-846............................ Test Methods for Evaluating Solid
Wastes
SWMU.............................. Solid Waste Management Unit
TCLP.............................. Toxicity Characteristic Leaching
Procedure
TRI............................... Toxic Release Inventory
TSCA.............................. Toxic Substances Control Act
TSDF.............................. Treatment, Storage and Disposal
Facility
TSS............................... Total Suspended Solids
UMRA.............................. Unfunded Mandates Reform Act
USC............................... United States Code
UTS............................... Universal Treatment Standard
VOC............................... Volatile Organic Compound
WETOX............................. Wet Air Oxidation
WMU............................... Waste Management Unit
WWT............................... Wastewater Treatment
------------------------------------------------------------------------

Contents of This Proposed Rule

I. Overview
A. What Impact May This Proposed Rule Have?
B. What Are the Statutory Authorities for This Proposed Rule?
II. Background
A. How Does EPA Define a Hazardous Waste?
B. How Does EPA Regulate RCRA Hazardous Wastes?
C. How Does EPA Regulate Solid Wastes That Are Not RCRA
Hazardous Wastes?
D. Overview of the Hazardous Waste Listing Determination Process
for Dyes and/or Pigments Production Wastes
1. Previous Proposals
2. Consent Decree Schedule for This Proposal
3. Effect on Proposals of Legal Actions Pertaining to
Confidential Business Information
E. Existing Regulations That Apply to This Industry
F. What Industries and Wastes Are Covered in This Proposed Rule?
1. Scope of Industry Classifications
2. Scope of Waste Classifications
G. Description of the Dyes and/or Pigments Production Industries
H. What Publicly Available Information Did EPA Collect and Use?
III. Approach Used in This Proposed Listing
A. Summary of Today's Action
B. Why Is a Mass Loadings-Based Approach Being Used for This
Listing?
C. What Wastes Are Generated by This Industry?
D. How Are These Wastes Currently Managed?
E. What Waste Management Scenarios Did We Select for Risk
Assessment Modeling?
1. Plausible Waste Management Selection Criteria and Modeling
Considerations
2. Selection of Waste Management Scenarios for Risk Assessment
Modeling of Dyes and/or Pigments Nonwastewaters
3. Selection of Waste Management Scenarios for Risk Assessment
Modeling

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of Dyes and/or Pigments Production Wastewaters
F. What Factors Did EPA Incorporate Into Its Quantitative Risk
Assessment?
G. Overview of the Risk Assessment
1. How Did EPA Chose Potential Constituents of Concern?
2. What Was EPA's Approach to Conducting Human Health Risk
Assessment?
3. What Was EPA's Approach to Conducting the Ecological Risk
Assessment?
4. What Is the Uncertainty in the Risk Results?
5. How Did EPA Use Damage Case Information?
IV. Proposed Listing Determinations
A. What Are the Proposed Regulations for Dyes and/or Pigments
Production Nonwastewaters?
1. Landfill Scenarios Underlying Listing Loading Limits
2. Conditional Exemption for Certain Landfilled Wastes
3. Selecting K181 Constituents and Mass Loading Limits
4. Assessment of Biodegradation
5. Lead as a Potential K181 Constituent
6. Waste Analysis Concerns
7. Proposed Additions to Appendices VII and VIII of Part 261
8. Co-Generation With Out-of-Scope Wastes
B. How Does K181 Impact Wastes That Are Not Landfilled,
Combusted, or Previously Listed?
1. What Is the Status of Wastes That Are Not Landfilled?
2. What Is the Status of Wastes Destined for Combustion That
Trigger the K181 Listing Levels?
3. Applicability to Wastes That Are Already Hazardous
C. Why Are We Proposing Not To List Wastewaters?
1. Air Emissions From Tanks and Surface Impoundments
2. Groundwater Releases From Surface Impoundments
D. Scope of the Listings and the Effect on Treatment Residuals
E. What Is the Status of Previously Disposed Wastes and Landfill
Leachate From Previously Disposed Wastes?
V. Proposed Requirements for K181 Determinations
A. How Do I Demonstrate That My Wastes Are Nonhazardous?
1. Categorical Determination
2. No K181 Constituents of Concern
3. Low Quantity Versus High Quantity Wastes With K181
Constituents
4. Section (d)(2) Demonstrations for Waste Quantities Less Than
1,000 MT/yr
5. Section (d)(3) Demonstrations for Waste Quantities Greater
Than 1,000 MT/yr
6. EPA and State Oversight
B. How Do I Document Compliance With the Landfill Condition?
C. How Would I Manage My Wastes During the Period Between
Generation and Hazardous Waste Determination?
D. Implementation Examples
E. What Are the Consequences of Failing To Meet Recordkeeping
Requirements or Listing Conditions?
VI. Proposed Treatment Standards Under RCRA's Land Disposal
Restrictions
A. What Are EPA's Land Disposal Restrictions (LDRs)?
B. How Does EPA Develop LDR Treatment Standards?
C. What Treatment Standards Are We Proposing?
D. What Changes to Existing Treatment Requirements Are Proposed?
E. Other LDR-Related Provisions
F. Is There Treatment and Management Capacity Available for
These Proposed Newly Identified Wastes?
1. What Is a Capacity Determination?
2. What Are the Capacity Analysis Results?
VII. State Authority and Compliance
A. How Are States Authorized Under RCRA?
B. How Would This Rule Affect State Authorization?
C. Who Would Need to Notify EPA That They Have a Hazardous
Waste?
D. What Would Generators and Transporters Have to Do?
E. Which Facilities Would Be Subject to Permitting?
1. Facilities Newly Subject to RCRA Permit Requirements
2. Existing Interim Status Facilities
3. Permitted Facilities
4. Units
5. Closure
VIII. CERCLA Designation and Reportable Quantities
A. What Is the Relationship Between RCRA and CERCLA?
B. How Does EPA Determine Reportable Quantities?
C. EPA Will Assign An RQ of One-Pound for The Waste
D. How Does a Mass Loading Limit Hazardous Waste Listing
Approach Relate to My Reporting Obligations Under CERCLA? When Would
I Need To Report a Release of These Wastes Under CERCLA?
E. How Would I Report a Release?
F. What Is the Statutory Authority for This Program?
G. How Can I Influence EPA's Thinking on Regulating K181 Under
CERCLA?
IX. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
1. Background
2. Need for the Proposed Rule
3. Consideration of Non-Regulatory Alternatives
4. Evaluation of Regulatory Options
5. Assessment of Costs, Economic Impacts, and Benefits
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 12898: Environmental Justice
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act

I. Overview

A. What Impact May This Proposed Rule Have?

We are proposing to list nonwastewaters from the production of
certain dyes and/or pigments as hazardous wastes under Subtitle C of
RCRA. If you are a dye, pigment or FD&C colorant manufacturer and you
generate nonwastewaters described in this proposed rule, then you would
need to determine if your wastes meet the new hazardous waste code,
K181, if finalized. Your waste would become a listed hazardous waste if
it contains annual mass loadings (kilograms/year, abbreviated as kg/yr)
of any of the K181 constituents of concern at a level equal to or
greater than the hazardous loading identified for that constituent (see
Table IV-1), unless you meet both of the following conditions: (1) Your
wastes do not contain annual mass loadings of the constituent for which
we are proposing a second, higher tier listing limit (see Table IV-2),
and (2) you manage your wastes in a Subtitle D landfill cell subject to
the design criteria in Sec. 258.40 or in a Subtitle C landfill cell
subject to Sec. 264.301 or Sec. 265.301. When mass loadings meet or
exceed the specified annual levels, you may still manage as
nonhazardous all wastes generated up to the loading limit. If you
determine that your nonwastewaters are hazardous under this listing,
then the wastes must be stored, treated and disposed in a manner
consistent with the RCRA Subtitle C hazardous waste regulations at 40
CFR parts 260-272. If you were not previously a hazardous waste
generator, and you determine that you generate this newly-listed
hazardous waste, then you must notify the EPA or your authorized state,
according to section 3010 of RCRA, that you generate hazardous waste.
If you believe that your wastes do not exceed the K181 listing
levels, or that you meet the conditions for exclusion from the listing,
you can document your findings on an annual basis, and manage your
wastes as nonhazardous. If your annual generation of nonwastewaters
potentially subject to the K181 listing exceeds 1,000 metric tons and
you wish to demonstrate that your wastes do not exceed the K181 listing
levels, you must conduct sampling and analysis of the affected wastes,
calculate the constituent-specific mass-loadings, and keep certain
records of these wastes on-site. On the other hand, if your annual
generation of nonwastewaters potentially subject to the K181 listing is

[[Page 66170]]

less than 1,000 metric tons and you wish to demonstrated that your
wastes do not exceed the K181 listing levels, you can use your
knowledge of your wastes to calculate your wastes' mass loadings.
Following the initial determination that your wastes are nonhazardous
under this listing, you would have a continuing obligation to make such
a determination at least on an annual basis. After three consecutive
annual demonstrations that your wastes are not subject to K181, you
would be able to make subsequent determinations based on your knowledge
of the wastes, rather than by conducing waste analysis.
We are proposing not to list wastewaters from the production of
dyes and/or pigments.
Section II provides background on the Listing Program, past
proposed listing determinations for these wastes, relevant litigation,
the scope of this effort, an overview of this industry and the general
types of data that we used. Section III describes our approach to
conducting this listing determination. Section IV presents our basis
for concluding that nonwastewaters should be listed as K181 and that
wastewaters do not warrant listing. Section V describes the proposed
process for demonstrating that your wastes are not K181.

B. What Are the Statutory Authorities for This Proposed Rule?

Except as specified below, these regulations are being proposed
under the authority of sections 2002(a), 3001(b), 3001(e)(2), 3004(d)-
(m), and 3007(a) of the Solid Waste Disposal Act, 42 U.S.C. 6912(a),
6921(b) and (e)(2), 6924(d)-(m), and 6927(a), as amended, most
importantly by the Hazardous and Solid Waste Amendments of 1984 (HSWA).
These statutes commonly are referred to as the Resource Conservation
and Recovery Act (RCRA), and are codified at Volume 42 of the United
States Code (U.S.C.), sections 6901 to 6992(k) (42 U.S.C. 6901-
6992(k)).
Section 102(a) of the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9602(a) is
the authority under which EPA is proposing amendments to 40 CFR part
302.

II. Background

A. How Does EPA Define a Hazardous Waste?

EPA's regulations establish two ways of identifying solid wastes as
hazardous under RCRA. A waste may be considered hazardous if it
exhibits certain hazardous properties (``characteristics'') or if it is
included on a specific list of wastes EPA has determined are hazardous
(``listing'' a waste as hazardous) because we found them to pose
substantial present or potential hazards to human health or the
environment. EPA's regulations in the Code of Federal Regulations (40
CFR) define four hazardous waste characteristic properties:
ignitability, corrosivity, reactivity, or toxicity (see 40 CFR 261.21-
261.24). As a generator, you must determine whether or not a waste
exhibits any of these characteristics by testing the waste, or by using
your knowledge of the process that produced the waste (see Sec.
262.11(c)). While you are not required to sample your waste, you will
be subject to enforcement actions if you are found to be improperly
managing materials that are characteristic hazardous waste.
EPA may also conduct a more specific assessment of a waste or
category of wastes and ``list'' them if they meet criteria set out in
40 CFR 261.11. As described in Sec. 261.11, we may list a waste as
hazardous if it:

--Exhibits any of the characteristics noted above, i.e., ignitability,
corrosivity, reactivity, or toxicity (Sec. 261.11(a)(1));
--Is ``acutely'' hazardous, i.e., if it is fatal to humans at low
doses, or in the absence of human data, it has been shown in animal
studies to meet certain criteria, or otherwise capable of causing or
significantly contributing to an increase in serious illness (Sec.
261.11(a)(2)); or
--Is capable of posing a substantial present or potential hazard to
human health or the environment when improperly managed (Sec.
261.11(a)(3)).

Under the third criterion, at 40 CFR 261.11(a)(3), we may decide to
list a waste as hazardous if it contains hazardous constituents
identified in 40 CFR part 261, appendix VIII, and if, after considering
the factors noted in this section of the regulations, we ``conclude
that the waste is capable of posing a substantial present or potential
hazard to human health or the environment when improperly treated,
stored, transported, or disposed of, or otherwise managed.'' We place a
chemical on the list of hazardous constituents on Appendix VIII only if
scientific studies have shown a chemical has toxic effects on humans or
other life forms. When listing a waste, we also add the hazardous
constituents that serve as the basis for listing the waste to 40 CFR
part 261, appendix VII.
The regulations at 40 CFR 261.31 through 261.33 contain the various
hazardous wastes the Agency has listed to date. Section 261.31 lists
wastes generated from non-specific sources, known as ``F-wastes,'' and
contains wastes that are usually generated by various industries or
types of facilities, such as ``wastewater treatment sludges from
electroplating operations'' (see code F006). Section 261.32 lists
hazardous wastes generated from specific industry sources, known as
``K-wastes,'' such as ``Spent potliners from primary aluminum
production'' (see code K088). Section 261.33 contains lists of
commercial chemical products and other materials, known as ``P-wastes''
or ``U-wastes,'' that become hazardous wastes when they are discarded
or intended to be discarded.
Today's proposed regulations would list certain dyes and/or
pigments production wastes as a K-waste code under Sec. 261.32. We are
also proposing to add constituents that serve as the basis for the
proposed listings to appendix VII of part 261, as well as to add
certain constituents to appendix VIII of part 261 that are not already
included.
``Derived-From'' and ``Mixture'' Rules
Residuals from the treatment, storage, or disposal of most listed
hazardous wastes are also classified as hazardous wastes based on the
``derived-from'' rule (40 CFR 261.3(c)(2)(i)). For example, ash or
other residuals generated from the treatment of a listed waste
generally carries the original hazardous waste code and is subject to
the hazardous waste regulations. Also, the ``mixture'' rule (40 CFR
261.3(a)(2)(iii) and (iv)) provides that, with certain limited
exceptions, any mixture of a listed hazardous waste and a solid waste
is itself a RCRA hazardous waste.

B. How Does EPA Regulate RCRA Hazardous Wastes?

If a waste exhibits a hazardous characteristic or is listed as a
hazardous waste then it is subject to federal requirements under RCRA.
These regulations affect persons who generate, transport, treat, store
or dispose of such waste. Facilities that must meet hazardous waste
management requirements, including the need to obtain permits to
operate, commonly are referred to as ``Subtitle C'' facilities.
Subtitle C is Congress' original statutory designation for that part of
RCRA that directs EPA to issue regulations for hazardous wastes as may
be necessary to protect human health or the environment. EPA standards
and procedural regulations implementing Subtitle C are found generally
at 40 CFR parts 260 through 273.
All RCRA hazardous wastes are also hazardous substances under the

[[Page 66171]]

Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA), as defined in section 101(14)(C) of the CERCLA statute. This
applies to wastes listed in Sec. Sec. 261.31 through 261.33, as well
as any wastes that exhibit a RCRA characteristic. Table 302.4 at 40 CFR
302.4 lists CERCLA hazardous substances along with their reportable
quantities (RQs). Anyone spilling or releasing a substance at or above
the RQ must report the release to the National Response Center, as
required in CERCLA section 103. In addition, section 304 of the
Emergency Planning and Community Right-to-Know Act (EPCRA) requires
facilities to report the release of a CERCLA hazardous substance at or
above its RQ to State and local authorities. Today's rule proposes to
establish RQs for the newly listed wastes.

C. How Does EPA Regulate Solid Wastes That Are Not RCRA Hazardous
Wastes?

If your waste is a solid waste, but is not, or is determined not to
be a listed and/or characteristic hazardous waste, then you may manage
them at Subtitle D facilities. These facilities are approved by state
and local governments and generally impose less stringent requirements
on management of wastes. Subtitle D is the statutory designation for
that part of RCRA that deals with disposal of nonhazardous solid waste.
EPA regulations affecting Subtitle D facilities are found at 40 CFR
parts 240 thru 247, and 255 thru 258. Regulations for Subtitle D
landfills that accept municipal waste (``municipal solid waste
landfills'') are in 40 CFR part 258.

D. Overview of the Hazardous Waste Listing Determination Process for
Dyes and/or Pigments Production Wastes

1. Previous Proposals
Under the Resource Conservation and Recovery Act (RCRA) of 1976, as
an amendment to the Solid Waste Disposal Act of 1965, Congress directed
EPA to establish a framework for RCRA's Subtitle C hazardous waste
program. Congress also required EPA to propose and write timely rules
identifying wastes as hazardous under Subtitle C.
In the early 1980's, the EPA's Office of Solid Waste began an
investigation of the wastes generated by the dyes and/or pigments
production industries. Then in 1984, Congress passed the Hazardous and
Solid Waste Amendments (HSWA) to RCRA to significantly expand the scope
of RCRA, requiring EPA, in part, to make listing determinations for a
number of wastes including those from the manufacture of dyes and
pigments (RCRA section 3001(e)(2)). The Agency has made two listing
determination proposals with regard to organic dyes and pigments
manufacture, one in 1994 and another in 1999, according to the
deadlines set forth in a consent decree entered between EPA and
Environmental Defense (ED; formerly Environmental Defense Fund, or
EDF). The consent decree is described further in II.C.2.
On December 22, 1994, the Agency proposed its first listing
determinations for wastes from the production of organic dyes and
pigments (59 FR 66071). Specifically, the Agency proposed to list five
wastes, not to list six other wastes, and to defer action on an
additional three wastes. On July 23, 1999, the Agency proposed
concentration-based listings for two of the three deferred wastes from
the 1994 proposed rule (64 FR 40192). EPA redacted underlying data from
both proposals due to a court injunction that placed restrictions on
the Agency's release of underlying data with unresolved confidentiality
claims. (The court injunction is discussed further in II.C.3.) EPA has
not taken final action on either of these proposals.
Today's proposed rule completely supercedes the '94 and '99
proposals. We have transferred over to the new docket those non-CBI
materials that we are using as a basis for the new proposal.
2. Consent Decree Schedule for This Proposal
As noted above, HSWA established deadlines for completion of a
number of listing determinations, including for dyes and pigments
production wastes (see RCRA section 3001(e)(2)). Due to competing
demands for Agency resources and shifting priorities, these deadlines
were not met. As a result, in 1989, ED filed a lawsuit to enforce the
statutory deadlines for listing decisions in RCRA section 3001(e)(2).
(Environmental Defense v. Whitman, D.D.C. Civ. No. 89-0598.) To resolve
most of the issues in the case, in 1991 ED and EPA entered into a
consent decree which has been amended several times to revise the
deadlines for EPA action. Paragraph 1.h.(i) (as amended in December
2002) of the consent decree addresses the organic dyes and pigments
production industries:

EPA shall promulgate final listing determinations for azo/
benzidine, anthraquinone, and triarylmethane dye and pigment
production wastes on or before February 16, 2005 * * * These listing
determinations shall be proposed for public comment on or before
November 10, 2003.

Furthermore, paragraph 6.e. (as amended) stipulates that:

On or before November 10, 2003, EPA's Administrator shall sign a
notice of proposed rulemaking proposing land disposal restrictions
for dye and pigment wastes proposed for listing under paragraph
1.h.(i). EPA shall promulgate a final rule establishing land
disposal restrictions for dye and pigment wastes listed under
paragraph 1.h.(i) on the same date that it promulgates a final
listing determination for such wastes.

Today's proposal satisfies EPA's duty under paragraphs 1.h and 6.e
of the ED consent decree to propose listing determinations and land
disposal restrictions for the specified organic dyes and/or pigments
production wastes.
3. Effect on Proposals of Legal Actions Pertaining to Confidential
Business Information
In late 1994, just prior to EPA's issuance of the first listing
proposal for dyes and/or pigments production wastes, EPA was sued by a
number of pigment manufacturers who successfully sought an injunction
prohibiting EPA from releasing the companies' information that they had
submitted to EPA and claimed as Confidential Business Information
(CBI). (Magruder Color Co. v. EPA, Civ. No. 94-5768 (D.N.J.) The U.S.
District Court in New Jersey enjoined EPA from disclosing any of the
claimed CBI at issue in the litigation. As a result, EPA redacted
underlying data from both its 1994 and 1999 proposed dye and pigment
listing determinations. Members of the public (including ED) informed
EPA that they could not adequately comment on the proposals without
access to the redacted data.
EPA had intended to litigate the Magruder case and publish a notice
of data availability releasing any information that the Court
determined not to be CBI. However, litigation proved extremely time-
consuming. Consequently, in 2002 EPA decided to try a new strategy--
issuing a completely new proposal that did not rely on data subject to
the injunction in Magruder. EPA also reached a settlement with Magruder
plaintiffs that stayed the litigation during this new rulemaking and
permitted EPA to disclose certain specified masked and aggregated waste
sampling data. The Stipulation and Consent Order entered by the
District Court on June 30, 2003 is available in the docket for today's
proposal.
Today's proposal has been developed independently of the first and
second proposals. It does use some data developed for the 1994
proposal. First, it uses RCRA Sec. 3007 questionnaire

[[Page 66172]]

responses submitted by dyes and/or pigments manufacturers that were not
plaintiffs in Magruder and that we have determined are not CBI. We also
use the masked and aggregated data from EPA's record sampling and
analysis of dye and pigment wastes disclosed pursuant to the settlement
described above. Finally, we use some data submitted in public comments
that are not claimed as CBI. We are not using, however, any of the
analyses or background documents prepared for the two previous
proposals. We have conducted new analyses, prepared new background
documents, and reached new conclusions. Today's proposal completely
supersedes the 1994 and 1999 proposals. EPA does not intend to respond
to comments submitted on those proposals. Thus, if you believe that any
comments submitted on those proposals remains germane to today's
proposal, you should submit them (or relevant portions) again during
this comment period.

E. Existing Regulations That Apply to This Industry

RCRA authorizes EPA to evaluate industry waste management practices
and, if necessary, regulate how wastes are handled to ensure that
present or potential hazards are not posed to human health and the
environment. In addition to RCRA, the Clean Water Act (CWA) and Clean
Air Act (CAA) provide EPA with the statutory authority to evaluate
industry practices and, if necessary, regulate industry releases of
pollutants to environmental media such as water and air.
Currently, there are no hazardous waste listings under RCRA
specifically directed at organic dyes and/or pigments production
wastes. Organic dyes and/or pigments production waste streams may,
however, carry hazardous waste listing and/or characteristic codes if
they are generated from the use of certain common organic solvents
(spent solvent wastes F001 through F005) or if they exhibit a hazardous
waste characteristic (ignitability-D001, corrosivity-D002, reactivity-
D003, toxicity-D004-D043). In addition, a variety of intermediates used
in dyes and pigments production are listed hazardous waste when
disposed as discarded commercial chemical products under Sec. 261.33.
EPA is not soliciting comment on these existing hazardous waste
listings and does not intend to respond to such comments if received.
As explained in section IV.B.3, EPA is proposing to exclude from
today's proposed listing dyes and/or pigments production wastes that
are subject to these existing listings or hazardous waste
characteristics.
Regulatory requirements under the CWA (40 CFR part 414) specify
effluent guidelines for wastewaters discharged from the organic
chemical industry, including certain dyes and/or pigments production
wastes that are discharged to navigable waters. These guidelines are
implemented through national pollutant discharge elimination system
(NPDES) permits. These regulations apply to dyes and/or pigments
production wastes that originate from the manufacture of cyclic crudes
and intermediates, dyes, and organic pigments classified under SIC 2865
(among various organic chemicals, plastics, and synthetic fibers
(OCPSF) products). In addition, manufacturers who discharge wastewaters
generated from dyes and/or pigments production to a publicly owned
treatment works (POTW) may be required to comply with general
pretreatment requirements (40 CFR part 403) as established by the POTW.
Finally, some dyes and/or pigments manufacturers send their wastewaters
to privately-owned centralized wastewater treatment facilities (CWTs)
that are operated under NPDES permits. The Agency promulgated effluent
guidelines for these facilities at 40 CFR part 437.
Under the CAA, there are existing regulatory requirements for the
organic chemical industry that may apply to dyes and/or pigments
production facilities, such as:
[sbull] 40 CFR part 60--several subparts on standards of
performance for VOC emissions for new stationary sources.
[sbull] 40 CFR part 61--national emission standards for hazardous
air pollutants on equipment leaks from fugitive emission sources,
benzene operations, etc.
[sbull] 40 CFR part 63--several subparts on national emission
standards for hazardous air pollutants (NESHAP) for the synthetic
organic chemical manufacturing industry (SOCMI).
[sbull] 40 CFR part 68--chemical accident prevention provisions.
[sbull] 40 CFR part 82--protection of stratospheric ozone.
For example, 40 CFR part 60 subpart Kb provides standards of
performance for volatile organic liquid storage vessels; subpart III
provides standards of performance for VOC emissions from the SOCMI air
oxidation unit processes; and subpart RRR provides standards of
performance for VOC emissions from the SOCMI reactor processes. The
NESHAP in part 63 subpart F applies to chemical manufacturing
processing units; the NESHAP in part 63 subpart G applies to process
vents, storage vessels, transfer operations, and wastewater; the NESHAP
in part 63 subpart H covers equipment leaks; the NESHAP in part 63
subpart I applies to certain processes subject to the negotiated
regulation for equipment leaks; and the NESHAP in part 63 subpart Q
applies to industrial cooling towers.
There is also a proposed new source performance standard (NSPS) for
volatile organic compound emissions for wastewaters from the synthetic
organic chemical manufacturing industry (SOCMI) (see 59 FR 46780,
September 12, 1994; and 63 FR, 68087; and December 9, 1998, amendments
to the proposed rule based on public comments and changes to other
SOCMI rules). This SOCMI Wastewater NSPS proposal will most likely be
promulgated and published in the Federal Register in late 2003 or early
2004. Furthermore, the Agency proposed on April 4, 2002, Subpart FFFF
NESHAP, to reduce hazardous air pollutants from the miscellaneous
organic chemical manufacturing and the miscellaneous coating
manufacturing categories (67 FR 16154). This proposal would apply to
the production of a variety of SIC 28/NAICS 325 organic chemicals
including organic dyes and pigments.
In addition, the Agency has promulgated performance standards and
emission guidelines for new and existing commercial and industrial
solid waste incineration units burning nonhazardous wastes (see 65 FR
75337; December 1, 2002). The Agency also has recently proposed a
NESHAP for industrial/commercial/institutional boilers and process
heaters identified as major sources of hazardous air pollutants (HAP)
emissions (see 63 FR 1659; January 13, 2003).
There are also air emission regulations for steam generating
boilers under 40 CFR Part 60 Subparts D, Da, Dc and Db that provide New
Source Performance Standards (NSPS) limiting emissions from boilers
built after certain dates. Moreover, the Agency has published an
amendment for standards of performance for industrial-commercial-
institutional steam generating units located at chemical manufacturing
plants and petroleum refineries burning high-nitrogen byproduct/wastes
(66 FR 49830; October 1, 2001).

F. What Industries and Wastes Are Covered in This Proposed Rule?

1. Scope of Industry Classifications
EPA based many of its decisions concerning the scope of the
industries and wastes covered in this proposal on the ED v. Browner
consent decree. Paragraph 1.h.(i) of the consent decree stipulates
that:

[[Page 66173]]

EPA shall promulgate final listing determinations for azo/
benzidine, anthraquinone, and triarylmethane dye and pigment
production wastes * * * The azo/benzidine listing determination
shall include the following azo/benzidine dye and pigments classes:
azo, monoazo, diazo, triazo, polyazo, azoic, benzidine, and
pyrazolone. The anthraquinone listing determination shall include
the following anthraquinone dye and pigment classes: anthraquinone
and perylene. The triarylmethane listing determination shall include
the following triarylmethane dye and pigment classes: triarylmethane
and triphenylmethane.

Today's proposal applies only to certain organic dye and/or pigment
production industries. The end-user markets for dyes and pigments,
which include textiles, paper, leather, inks, paints, coatings,
plastics, fibers, lacquers, varnishes, cosmetics, food items, and other
low volume markets, are not within the scope of our listing
determination. Similarly, we are not addressing wastes from the post-
production formulation and packaging of dyes and/or pigments.
Consistent with both HSWA Amendments of 1984 and the consent decree,
EPA is only making proposed determinations on wastes from the
production of the organic dyes and/or pigments at issue.
Facilities impacted by today's proposal manufacture a range of
products. Some are exclusive dye manufacturers, while others produce
exclusively pigments. Others produce both pigments and dyes, and many
of these facilities produce other products that are not dyes or
pigments. While the various trade associations have asserted over time
that wastes from dye manufacture differs from wastes from pigment
manufacture, we are not differentiating between the two types of
products for the purposes of this proposal. Dyes and pigments commonly
use similar raw materials, and pigments are often made by
insolubilizing dyes. The mass loadings-based approach proposed today
will only impact those facilities that generate wastes with significant
levels of the K181 constituents, irrespective of whether they are
associated with dyes, pigments or both processes. As a result, this
notice uses the terminology ``dyes and/or pigments'' to refer to all of
the facilities or processes potentially impacted by this proposal.
Products produced by the organic dyes and/or pigments industries
that are included within the scope of this proposed rule are referred
to as ``dyes,'' ``pigments'' or ``FD&C colorants.'' The consent decree
covers three major chemical classes of organic dyes and pigments: azo/
benzidine, anthraquinone, and triarylmethane. This includes entities
who manufacture azo, monoazo, diazo, triazo, polyazo, azoic, benzidine,
and pyrazolone categories of the azo/benzidine class; anthraquinones
and perylenes; and triarylmethane and triphenylmethane categories of
the triarylmethane class.
Commenters on the previous proposed listing determinations for
these wastes raised several questions about the range of products that
would be associated with any listed wastes from the production of dyes
and/or pigments. For the purposes of clarity, we are addressing those
particular concerns in today's proposal. One commenter \1\ stated that
wastes from the manufacture of polymeric colorants should not be
included in the proposed listings. The commenter noted that polymeric
colorants are not classified as dyes or pigments by various
authoritative sources and are not considered dyes or pigments by
industry or end-users. Specifically, the commenter noted that (1) no
polymeric colorant is listed in the worldwide dyes registry
administered by the United Kingdom-based Royal Society of Dyers and
Colourists, i.e., the Colour Index; and (2) polymeric colorants do not
appear to qualify as a conventional dye or pigment under the guidelines
provided in Kirk-Othmer Encyclopedia of Chemical Technology (Fourth
Edition). The commenter described polymeric colorants as polymers with
much higher molecular weights (approximately 3,500) than either dyes or
pigments (less than 500). The commenter also noted that in prior
rulemakings (e.g., carbamate rulemaking \2\ and polymer exemption
provisions under the Toxic Substances Control Act (TSCA)),\3\ EPA
recognized the reduced toxicity associated with higher molecular weight
molecules. The commenter further noted that producers of such products
claim that the manufacturing process and end uses of polymeric
colorants are different than dyes or pigments in that polymeric
colorants must be non-staining. The dyes manufacturers' trade
association, ETAD, noted in their comments that they do not classify
polymeric colorants as dyes.\4\ We agree that polymeric colorants do
not fall within the classes of products of interest to today's
proposal. Wastes from production of polymeric colorants, therefore, are
not within the scope of today's proposed listing determination.
---------------------------------------------------------------------------

\1\ See Milliken comments on 1994 and 1999 proposals, available
in the docket for today's proposal.
\2\ 60 FR 7824, 7830 (February 9, 1995).
\3\ 40 CFR 723.250.
\4\ See ETAD's comments on 1994 proposal, available in the
docket for today's proposal.
---------------------------------------------------------------------------

Several commenters \5\ stated that perylene and perinone pigments
are misclassified as anthraquinones. They argue that although the
Colour Index classifies perylenes and perinones as being subclasses of
anthraquinone, these pigment classes are not structurally related to
anthraquinones and are not derived from anthraquinone-based raw
materials, and therefore, should be classified separately. While there
may be a question as to whether perylenes should be classified as
anthraquinones, we are proposing to retain wastes from the production
of perylene products within the scope of today's proposed listing
determination. The consent decree specifically requires us to assess
perylene products, and therefore we must make listing determinations
that cover any corresponding wastes, regardless of whether or not
perylenes are properly classified as anthraquinones.
---------------------------------------------------------------------------

\5\ See comments on the 1994 proposal submitted by CDR, Bayer,
and CPMA, and on the 1999 proposal submitted by CPMA, available in
the docket for today's proposal.
---------------------------------------------------------------------------

Regarding perinone pigments, while the Colour Index groups
perinones under the broader classification of ``Anthraquinones and
Related Colouring Matters,'' we are persuaded by the commenters'
arguments that these products are sufficiently dissimilar from
anthraquinones. Perinones do not have the quinone-type structure that
is distinctive of anthraquinones, but rather perinones are derivatives
of naphthalene-1,4,5,8-tetracarboxylic acid.\6\ Therefore, we are not
proposing that perinones be covered by today's proposed listing
determination.
---------------------------------------------------------------------------

\6\ For example, see the perinone pigment: C.I. Pigment Orange
43; in this case the pigment has only one carbon bound to an oxygen
in a carbonyl group (instead of two in the typical anthraquinone)
and this carbon is bonded to a nitrogen in an amide linkage (instead
of a carbon in an anthraquinone).
---------------------------------------------------------------------------

Commenters also stated that quinacridone pigments are not within
the anthraquinone pigment category since they are quinonoid in type and
carry Colour Index numbers outside of the anthraquinone category. We
agree that these products are sufficiently dissimilar from
anthraquinones. Quinacridones are classified as acridines, which have a
nitrogen in the fused ring system.\7\ Therefore, we are not proposing
to include their wastes

[[Page 66174]]

within the scope of today's proposed listing determination.
---------------------------------------------------------------------------

\7\ For example, see the quinacridone pigment: C.I. Pigment Red
202; this pigment has only one carbonyl group (instead of two in the
typical anthraquinone) and instead of another carbonyl moiety the
molecule has a nitrogen in the typical acridine ring structure.
---------------------------------------------------------------------------

Additional information on polymeric colorants, perylenes,
perinones, and quinacridones is presented in the ``Background Document
for Identification and Listing of Wastes from the Production of Organic
Dyes and Pigments'' (hereafter referred to as the Listing Background
Document) and in the referenced comments which are available in the
public docket for today's proposal.
2. Scope of Waste Classifications
Paragraph 1.h.(ii) of the consent decree describes the dyes and/or
pigments production wastes that must be addressed by our listing
determination:

Listing determinations under paragraph 1(h) of this Decree shall
include the following wastes, where EPA finds such wastes are
generated: spent catalysts, reactor still overhead, vacuum system
condensate, process waters, spent adsorbent, equipment cleaning
sludge, product mother liquor, product standardization filter cake,
dust collector fines, recovery still bottoms, treated wastewater
effluent, and wastewater treatment sludge.

In this proposal, we have grouped all of the wastes for these
industries that are identified in the consent decree into two major
categories of process wastes: Wastewaters and nonwastewaters. Some
manufacturers may commingle nonprocess wastes (i.e., cafeteria and
office refuse, sanitary wastes) with wastewaters or nonwastewaters from
dyes and/or pigment production. We consider these nonprocess wastes to
be outside the scope of the consent decree and we have not evaluated
them. However, if they are commingled with the process nonwastewaters
that we propose to list, they will be regulated as K181 hazardous
wastes under the RCRA mixture rule.

G. Description of the Dyes and/or Pigments Production Industries

Organic dye and/or pigment manufacturers are typically concentrated
near large metropolitan areas, with the majority of facilities located
on the East Coast and in the Midwest. We estimate that there are 37
dyes and/or pigments production facilities operating in the United
States by about 29 different companies (a few larger companies operate
several facilities).\8\ Of this universe, we estimate that about 15 of
these companies meet the Small Business Administration definition of a
small business (total company employment of fewer than 750 people at
the corporate level).
---------------------------------------------------------------------------

\8\ ``Economic Assessment for the Proposed Loadings-Based
Listing of Non-Wastewaters from the Production of Selected Organic
Dyes, Pigments, and Food, Drug, and Cosmetic Colorants,'' U.S. EPA.
November, 2003.
---------------------------------------------------------------------------

Kirk-Othmer defines dyes as intensely colored or fluorescent
organic substances which impart color to a substrate by selective
absorption of light.\9\ When applied, dyes penetrate the substrate in a
soluble form, after which they may or may not become insoluble. The
structure of dyes is temporarily altered during the application process
and colors are imparted only by selective absorption.
---------------------------------------------------------------------------

\9\ ``Dyes and Dye Intermediates.'' Kirk-Othmer Encyclopedia of
Chemical Technology, Fourth Edition. Volume 8. New York: John Wiley
& Sons, Inc, 1993.
---------------------------------------------------------------------------

Dyes are used to color fabrics, leather, paper, ink, lacquers,
varnishes, plastics, cosmetics, and some food items. Several thousand
individual dyes of various colors and types are manufactured. This
large number is attributable to the many different types of materials
to which dyes are applied and the different conditions of service for
which dyes are required.\10\
---------------------------------------------------------------------------

\10\ ``Chemical Economic Handbook Marketing Research Report--
Dyes,'' SRI International, 2000.
---------------------------------------------------------------------------

Synthetic dyes are derived in whole or in part from cyclic
intermediates. Approximately two-thirds of the dyes consumed in the
United States are used by the textiles industry to dye fabrics, and
about one-sixth are used for coloring paper, while the remainder are
used primarily in the production of organic pigments and in the dyeing
of leather and plastics.\11\
---------------------------------------------------------------------------

\11\ ``Synthetic Organic Chemicals United States Production and
Sales, 1991,'' USITC Publication 2607, February 1993.
---------------------------------------------------------------------------

Commercial dyes are sold in several physical forms including
granular, powders, liquid solutions, and pastes. The dyes contain color
at concentrations ranging from approximately 1 to more than 98
percent.\12\
---------------------------------------------------------------------------

\12\ ``Chemical Economic Handbook Marketing Research Report--
Dyes,'' SRI International, 2000.
---------------------------------------------------------------------------

Organic dyes are classified in several ways, including their
chemical structure or class, general dye chemistry, and application
process. Chemical structure classifications include azos,
triarylmethanes, diphenylmethanes, anthraquinones, stilbenes, methines,
polymethines, xanthenes, phthalocyanines, sulfurs and so on. Kirk-
Othmer describes the common application process classes of dyestuffs to
include acid dyes, mordant dyes, metal complex dyes, direct dyes,
fiber-reactive dyes, basic dyes, vat dyes, sulfur dyes, disperse dyes,
ingrain dyes/azoic dyes, and other dyes. Using general dye chemistry,
textile dyes typically are grouped into the following categories: acid
dyes, direct (substantive dyes), azoic dyes, disperse dyes, sulfur
dyes, fiber reactive dyes, basic dyes, oxidation dyes, mordant (chrome)
dyes, developed dyes, vat dyes, pigments, optical/fluorescent
brighteners, and solvent dyes.\13\ The trade association representing
the dye industry is the Ecological and Toxicological Association of
Dyes and Organic Pigments Manufacturers (ETAD).
---------------------------------------------------------------------------

\13\ S. V. Kulkarni, C. D. Blackwell, A. L. Blackard, C. W.
Stackhouse, and M. W. Alexander, U.S. Environmental Protection
Agency, Air and Energy Engineering Research Laboratory, ``Project
Summary Textile Dyes and Dyeing Equipment: Classification,
Properties, and Environmental Aspects,'' EPA/600/S2-85/010, April
1985.
---------------------------------------------------------------------------

The Color Pigment Manufacturers' Association (CPMA), which
primarily represents the pigments industry, defines pigments as
``colored, black, white, or fluorescent particulate organic or
inorganic solids, which usually are insoluble in, and essentially
physically and chemically unaffected by, the vehicle or substrate in
which they are incorporated.'' \14\ According to the CPMA, the primary
difference between pigments and dyes is that pigments are insoluble in
the substrate during the application process, while dyes are soluble in
the substrate. Pigments retain a crystalline or particulate structure
and impart color by selective absorption or by scattering of light.
---------------------------------------------------------------------------

\14\ See, for example, CPMA comments on the Testing of Certain
High Production Volume Chemical; Data Collection and Development on
High Production Volume (``HPV'') Chemicals Proposed Rule and Notice
65 FR 81658, December 26, 2000, Docket Control No. OPPTS-42213A,
http://www.thecre.com/watchlist/20010423_cpma.html#start.
---------------------------------------------------------------------------

The approximate percentage of synthetic organic pigments by use
during 1991-1995 was as follows: inks (60%), paints and coatings (25%),
plastics (10%), and other (5%). Pigments are used primarily in printing
inks. There are fewer pigments produced than dyes, however, pigment
batches generally are larger in size. U.S. production of organic
pigments increased by 5 percent during 1997-99, from 75,500 tons to
79,500 tons. Production is estimated to increase at an average annual
rate of 2.7 percent through 2005.\15\
---------------------------------------------------------------------------

\15\ Data and estimates taken from Will, Raymond and Akihiro
Kishi. SRI International, The Chemical Economics Handbook, 2001. CEH
Marketing Research Report--Pigments (pages 3 and 5).
---------------------------------------------------------------------------

Organic pigments are derived in whole or in part from benzenoid
chemicals and colors and are described as being toners or lakes. Toners
and lakes essentially are the same in final form, but differ in their
preparation method.

[[Page 66175]]

FD&C colorants are dyes and pigments that have been certified or
provisionally certified by the Food and Drug Administration (FDA) for
use in food items, drugs, and/or cosmetics. The International
Association of Color Manufacturers (IACM) represents certain FD&C
colorant manufacturing facilities. Typically, FD&C colorants are azo,
anthraquinone, or triarylmethane dyes with azo representing the largest
category. These products are similar or identical to larger-volume dye
products not used in food, drugs, and cosmetics.
The dyes and/or pigments industries typically operate successive
batch processes producing varying dyes and/or pigments products. These
batch operations generate a wide variety of solid wastes periodically.
Wastes are often commingled from multiple processes prior to
management, and include secondary wastes generated from the treatment
of commingled waste (e.g., facilities commingle wastewaters prior to
managing them in tanks or impoundments, and generate commingled
wastewater treatment sludges). Some wastes may also be process-specific
wastes that are generated from a specific process and may be managed
independently of other wastes (e.g., spent filter aids).\16\, \17\
---------------------------------------------------------------------------

\16\ ``Dyes and Dye Intermediates.'' Kirk-Othmer Encyclopedia of
Chemical Technology, Fourth Edition. Volume 8. New York: John Wiley
& Sons, Inc. 1993.
\17\ ``Pollution Prevention Guidance Manual for the Dye
Manufacturing Industry.'' U.S. Environmental Protection Agency and
the Ecological and Toxicological Association of the Dyestuffs
Manufacturing Industry. 1990.
---------------------------------------------------------------------------

For more detailed information, see the Listing Background Document
available in the public docket for today's proposed rule.

H. What Publicly Available Information Did EPA Collect and Use?

In light of the constraints imposed by the Magruder injunction on
survey and analytical data with unresolved CBI claims, we identified a
variety of publicly available sources of information for today's
listing determinations. We used these data (as described elsewhere in
this proposal and in the docket materials available in the public
docket for today's proposal) for several purposes: (1) To support a
general assessment of the dyes and/or pigments industries' waste
generation and management practices; (2) to develop a list of potential
constituents of concern; (3) to identify plausible waste management
scenarios that are the basis for our risk assessment and listing
determination; and (4) to project potential impacts associated with the
proposal.
The more important data sources we used include the following:

--Non-CBI RCRA Sec. 3007 questionnaire information and data, collected
during the 1992 Agency survey of wastes generated in the dyes and/or
pigments industries, and supplemented, corrected, and updated (for the
year 1997) by the surveyed facilities. Surveys submitted by the twelve
plaintiffs in Magruder remain unavailable. The available surveys are
(1) surveys submitted by non-plaintiffs who made no CBI claims; (2)
surveys submitted by non-plaintiffs who made CBI claims, but later
withdrew them; and (3) surveys submitted by non-plaintiffs who made CBI
claims, which EPA denied under the procedures set out in 40 CFR part 2.
--EPA's analytical data from sampling and analysis of the wastes of
concern, developed in the early 1990s and used to support the 1994 and
1999 proposed listing determinations, as masked and aggregated per
Table 1 of the June 2003 settlement agreement with the Magruder
plaintiffs.
--Split sample analytical data submitted by the Color Pigments
Manufacturing Association (CPMA), in a letter dated April 20, 1994 from
J. Lawrence Robinson of CPMA to Ed Abrams of EPA.
--The Toxics Release Inventory (TRI) for Reporting Year 2000.
--The European Union (EU)'s directive for a community ban on
azocolourants (76/769/EEC, Annex I, point 43), relating to restrictions
on the marketing and use of certain dangerous substances and
preparations (azocolourants).
--Public comments without CBI claims submitted on the 1994 and 1999
proposed listing determinations.
--Colour Index 2.0, Intermediates Database, Third Edition, July 1999.
--Kirk-Othmer Encyclopedia of Chemical Technology, Fourth Edition,
2001.
--The Stanford Research Institute (SRI)'s 2000 Directory of Chemical
Producers.
--Information provided by trade associations (CPMA and ETAD) in 2002-
2003 regarding the status of dye, pigment and FD&C facilities
potentially generating the wastes of concern.
--Information provided by trade associations (CPMA and ETAD) in 2002-
2003 regarding onsite waste management units for dyes and/or pigments
manufacturers potentially generating the wastes of concern.
--Dyes and/or pigments manufacturers' websites.

III. Approach Used in This Proposed Listing

A. Summary of Today's Action

In hazardous waste listings promulgated by EPA, we typically
describe the scope of the listing in terms of the waste material and
the industry or process generating the waste. However, in today's rule,
we are proposing to use a newly developed ``mass loadings-based''
approach for listing dyes and/or pigments production wastes. In a mass
loadings-based listing, a waste would be hazardous once a determination
is made that it contains any of the constituents of concern at or above
specified mass-based levels of concern.
In this proposed rule, we identify constituents of concern likely
to be present in nonwastewaters which may pose a risk above specified
mass loading levels. Using risk assessment tools developed to support
our hazardous waste identification program, we assessed the potential
risks associated with the constituents of concern in plausible waste
management scenarios. From this analysis, we developed ``listing
loading limits'' for each of the constituents of concern.
If you generate any dyes and/or pigments production nonwastewaters
addressed by this proposed rule, you would be required either to
determine whether or not your waste is hazardous or assume that it is
hazardous as generated under today's proposed K181 listing. (Note, we
are proposing that if wastes are otherwise hazardous due to an existing
listing in Sec. Sec. 261.31-33 or the hazardous waste characteristics
in Sec. Sec. 261.21-24, the listing under K181 would not apply.) We
are proposing a three-step determination process. The first step is a
categorical determination where you would determine whether your waste
falls within the categories of wastes covered by the listing (e.g.,
nonwastewaters generated from the production of dyes and/or pigments
that fall within the product classes of azo, triarylmethane, perylene
or anthraquinone) and whether any of the regulated constituents could
be in your waste. If you determine under this first step that your
waste meets the categorical description of K181 and that your waste may
contain any K181 constituent, you would then in the second step
determine whether your waste meets the numerical standards for K181
(e.g., compare the mass loading of the regulated constituents in your
waste to the numerical standards). Your waste

[[Page 66176]]

would be a listed hazardous waste if it contains any of the
constituents of concern at a mass loading equal to or greater than the
annual hazardous mass limit identified for that constituent. Under the
proposed approach, all waste handlers may manage as nonhazardous all
wastes generated up to the loading limit, even if the waste
subsequently exceeds one or more annual mass loading limits. The
detailed descriptions of the steps you would be required to follow to
demonstrate that your waste does not exceed the K181 listing limits is
presented in section V. Finally, in the third step, you would be able
to determine whether your waste is eligible for a conditional exemption
from the K181 listing. You would need to demonstrate that your waste
does not exceed a higher loading limit for one constituent and that it
is being disposed of a landfill subject to design standards set out in
Sec. 258.40, Sec. 264.301, or Sec. 265.301.

B. Why Is a Mass Loadings-Based Approach Being Used for This Listing?

We have previously proposed two concentration-based listing
determinations that were similar to today's proposal of a mass
loadings-based listing. These proposals (the 1999 dyes and pigments
listing proposal and the 2001 paint listing proposal) identified
concentrations that would have served as listing levels for the
constituents of concern for those wastes. Both proposals dealt with
industries that generate highly variable wastes. We believed these
proposals added a valuable level of flexibility to the listings, by
clarifying the levels at which the wastes of concern began to pose risk
that warranted hazardous waste control. These levels would have served
as both pollution prevention goals, whereby facilities could reengineer
their processes to minimize specific risks, and built-in delisting
levels, allowing generators to exit the Subtitle C system without
invoking the rulemaking process required by the current Delisting
Program.
As we assessed this approach, we concluded that a mass loadings-
based approach to listing dyes and/or pigments production wastes as
hazardous has all of the advantages of a concentration-based listing.
For example, a mass loadings-based approach allows generators to
evaluate the variable wastes they generate individually for hazard, so
only wastes that are hazardous are listed. As a result, there should be
less burden on dyes and/or pigments manufacturers than would be imposed
by a traditional listing that would bring entire wastes into the
hazardous waste system, regardless of the amount of constituents found
in wastes generated by individual generators. Also, a mass loadings-
based listing approach may provide an incentive for hazardous waste
generators to modify their manufacturing processes. For example, if a
manufacturer has a listed hazardous waste based on constituent-specific
mass loading levels established by EPA, the generator knows that if the
wastes' mass loading levels are reduced below the regulatory level due
to raw material substitution or process change, the waste would not be
regulated as a listed hazardous waste. Therefore, the generator may
decide to substitute raw materials in order to generate a nonhazardous
waste. This approach encourages waste minimization and reduced use of
toxic constituents, goals of both RCRA and the Pollution Prevention Act
of 1990 (42 U.S.C. 13101 et seq., Pub. L. 101-508, November 5, 1990).
Section 1003 of RCRA states that one goal of the statute is to
promote protection of human health and the environment and to conserve
valuable material and energy resources by ``minimizing the generation
of hazardous waste and the land disposal of hazardous waste by
encouraging process substitution, materials recovery, properly
conducted recycling, and reuse and treatment.'' Section 1003 further
provides that it is a national policy of the United States that,
whenever feasible, the generation of hazardous waste is to be reduced
or eliminated as expeditiously as possible.
The Pollution Prevention Act of 1990 provides a hierarchy of
approaches. Pollution should be prevented or reduced; wastes that
cannot be prevented should be recycled or reused in an environmentally
safe manner; wastes that cannot be prevented/reduced or recycled should
be treated; and disposal or release into the environment should be
chosen only as a last resort. If EPA provides a mass loadings-based
target in the listing, generators would have regulatory and economic
incentives to meet the reduced levels.
The mass loading approach also offers two additional advantages. It
will improve environmental protection by capturing large volume, dilute
wastes that would not be regulated under a concentration-based
approach. Also, since it requires less data from individual facilities,
it allows us to move forward on the last of the HSWA-mandated listings
without complete resolution of the Magruder CBI litigation.
While this approach represents a new way of assessing wastes, we
believe that the underlying concepts of assessing the mass of
constituents of concern are similar to other EPA programs, including
reporting that may be required for major sources under the CAA, for
facilities subject to the TRI, and for facilities subject to NPDES
permits. Many facilities potentially impacted by this listing will
already be assessing constituent masses under these types of programs.
EPA solicits public comment on all aspects of this mass-loading-
based approach to making a listing determination, including the impact
of such an approach compared to approaches used in the past (e.g.,
concentration-based approach) and its usefulness as a means of
encouraging pollution prevention.

C. What Wastes Are Generated by This Industry?

As explained earlier in Section II.G, we estimate that currently
there are 37 active dyes and/or pigments facilities operated by 29
companies (excluding those no longer making in-scope dyes and/or
pigments products and those due to be closed) based on the information
provided by the trade associations (CPMA, ETAD and IACM) in 2002-2003.
Based on the non-CBI portions of the 1992 RCRA Sec. 3007 survey
data (as supplemented and updated) submitted by entities who were not
plaintiffs in the Magruder litigation, organic dyes and/or pigments
manufacturers mainly generate the following types of waste: Wastewaters
(including process washes, equipment rinse waters, and other waste
liquors), spent solvents, still bottoms, wastewater treatment sludge
and other solid materials (such as emission control dust and fines,
off-specification products, spent filter aids/cloths, process sludge
and filter cake.)
We estimate that the 37 dyes and/or pigments production facilities
generate up to 22 million metric tons of wastewaters and 69,000 metric
tons of nonwastewaters per year.\18\ Our estimates of wastewater
generation rates were based on rates reported in NPDES permits for
those facilities that discharge directly to surface water. For
facilities that discharge their wastewaters indirectly through POTWs,
we estimated their wastewater generation rates using data compiled by

[[Page 66177]]

the Office of Water in support of the OCPSF effluent guidelines
development process. We estimated nonwastewater generation rates by
applying engineering estimates of wastewater treatment sludge
generation rates. Wherever possible, we used facility-specific
generation rates, including those provided in non-CBI public comments
and non-CBI portions of Sec. 3007 surveys. Note that our estimates of
nonwastewater generation rates do not include estimates of waste solids
other than wastewater treatment sludges (e.g., filter solids, off-
specification products, etc.). Our review of the non-CBI Sec. 3007
data show that these waste quantities are often significantly smaller
than wastewater treatment sludge quantities generated at the same
facilities. At the same time, our estimated nonwastewater quantities
are likely to be somewhat overstated due to our use of conservative
assumptions about the amount of sludge generated during wastewater
treatment. Consequently, we believe that our estimates of wastewater
treatment sludge volumes are large enough to encompass volumes of the
other types of solids generated by these facilities.
---------------------------------------------------------------------------

\18\ See ``Economic Assessment for the Proposed Loadings-Based
Listing of Non-Wastewaters from the Production of Selected Organic
Dyes, Pigments, and Food, Drug, and Cosmetic Colorants' in the
public docket for today's proposed rule for a description of our
waste quantity estimation.
---------------------------------------------------------------------------

D. How Are These Wastes Currently Managed?

We used the following sources to characterize the management of
those wastes covered by this listing determination:
[sbull] Non-CBI portions of RCRA Sec. 3007 surveys submitted by
facilities that are not plaintiffs in the Magruder litigation.
[sbull] Non-CBI public comments on the 1994 and 1995 proposed
listing determinations for this industry.
[sbull] State agencies.
[sbull] TRI.
[sbull] Industry trade associations.
[sbull] Facility Web sites.
The non-CBI surveys (available in the docket for today's rule)
provided limited historical data about the waste management practices
performed by the surveyed facilities, including: Wastewater treatment
in tanks, wastewater treatment and/or storage in surface impoundments,
discharge of wastewaters to a POTW or under NPDES, solvent recovery,
combustion of waste solids/liquids onsite or offsite, fuel blending in
industrial furnaces, and disposal of nonwastewaters in nonhazardous
landfills onsite or offsite, and disposal of nonwastewaters in
hazardous offsite landfills.
We explored a number of more recent publicly available data sources
to update the non-CBI survey information on the waste management
practices at the operating dyes and/or pigments production facilities
and to understand current management practices at facilities whose
survey data were unavailable due to the Magruder injunction. We
reviewed non-CBI information from public commenters on the December 22,
1994 and July 23, 1999 proposed rules. The commenters claimed that all
the onsite land disposal units of concern (nonhazardous waste landfills
and surface impoundments) described in the 1992 RCRA Sec. 3007 survey
were equipped with protective liners, or had been replaced with tanks,
or were closed or undergoing closure. (These comments have been placed
in the docket for today's proposal.)
In 2002 we contacted nine State agencies to learn about the
existing status of onsite land disposal units located at potential dyes
and/or pigments production facilities in those States.\19\ None of the
State contacts identified any facilities with active onsite land
disposal units, with the exception of a single facility slated for
closure that was described as operating surface impoundments equipped
with double high density polyethylene (HDPE) liners.
---------------------------------------------------------------------------

\19\ See ``On-Site Waste Management Determination,'' dated May
20, 2003 in the public docket for details.
---------------------------------------------------------------------------

Furthermore, we reviewed the most recent available TRI data
(reporting year 2000) for onsite and offsite chemical releases of
interest at the dyes and/or pigments production facilities. As
summarized in the Listing Background Document, the TRI data describes a
variety of management practices, including: discharge to POTW or
surface water; thermal treatment in offsite incinerators, cement kilns,
energy recovery facilities, or fuel blenders; disposal in onsite
landfills; disposal in offsite landfills; and shipment to waste brokers
or treatment facilities.
We also met with the three primary trade associations (CPMA, ETAD,
and IACM) in December of 2002. The trade associations reviewed our
compilation of available information regarding onsite waste management
practices at known dyes and/or pigments production facilities. (See
meeting summaries available in the public docket for today's proposed
rule.) Both CPMA and ETAD collected additional information, and
provided input on the status of those identified onsite waste
management practices (copies available in the public docket for today's
proposed rule). ETAD indicated that the only active onsite landfill was
at a facility that treats waste by incineration prior to disposal. This
is consistent with TRI reporting data, which show that the only
constituents of concern that were disposed of in the onsite landfill
were metals (presumably the organic constituents were effectively
destroyed). Furthermore, ETAD confirmed that the production of dyes at
this facility was a very small fraction of the onsite production
processes. Thus, we believe that the use of this one onsite landfill
was not representative of management practices for the waste we are
evaluating. Based on all of this information, we concluded that all
wastes of concern going to landfills are disposed of in offsite
landfills. As discussed further in the following sections, we
ultimately concluded that all of the landfilled wastes are placed in
municipal solid waste landfills.
Consistent with their comments on the 1994 and 1999 proposals, the
trade associations asserted that there are currently no active unlined
surface impoundments at operating dyes and/or pigments production
facilities that receive untreated in-scope wastes, since the previously
identified unlined or clay-lined onsite impoundments had been closed.
The trade associations were also able to confirm that one production
facility treats wastewater in an impoundment with double composite
liners (including synthetic materials) and a leachate collection
system, and that one other facility with a double-lined impoundment was
scheduled to close.
In a subsequent review of some facility websites, we discovered
that one facility operates onsite surface impoundments. According to
the State regulating authority contacted, these impoundments are clay-
lined and are used to store wastewater after treatment and prior to
NPDES discharge. This facility is discussed in more detail in section
IV.C.

E. What Waste Management Scenarios Did We Select for Risk Assessment
Modeling?

This section summarizes our findings and conclusions concerning
current dyes and/or pigments production practices for nonhazardous
waste management; the plausible waste management scenarios that we
chose to model for the risk assessment; and why we did not model
certain management practices.
We chose to model three waste management scenarios based upon our
review of the current waste handling practices reported in the publicly
available data and the plausibility that these scenarios represent
actual practices that are used or could be used for disposal of dyes
and/or pigments production wastes. The scenarios that

[[Page 66178]]

we chose are nonwastewaters disposed in nonhazardous municipal solid
waste landfills; wastewaters stored and treated in on-site tanks prior
to discharge to a POTW or under a NPDES permit; and wastewaters managed
in onsite surface impoundments prior to discharge to a POTW or under a
NPDES permit. The general criteria for selection of plausible waste
management scenarios and the rationale for choosing each of these
scenarios are described in this section.
1. Plausible Waste Management Selection Criteria and Modeling
Considerations
Our regulations at Sec. 261.11(a)(3)(vii) require us to consider
the risk associated with ``the plausible types of improper management
to which the waste could be subjected'' because exposures to wastes
(and therefore the risks involved) will vary by waste management
practice. The choice of which ``plausible management scenario'' (or
scenarios) to use in a listing determination depends on a combination
of factors which are discussed in general terms in our policy statement
on hazardous waste listing determinations contained in the first
proposed Dyes and Pigments Listing Determination (59 FR 66072, December
22, 1994). We have applied this policy in all subsequent listings and
believe it is appropriate to continue to apply it here.
Our approach to selecting waste management scenarios to model for
risk analysis is to examine current industry management practices;
assess whether or not other practices are available to the industry;
and to decide what practices the industry would reasonably be expected
to use. There are common waste management practices, such as
landfilling, which we generally presume are plausible for solid wastes
and which we will evaluate for potential risk. There are other
practices which are less common, such as land treatment, which we
consider plausible only where the disposal methods have been reported
to be practiced. Where a practice is actually reported in use, that
practice is generally considered ``plausible'' and may be considered
for potential risk. In some situations, potential trends in waste
management for a specific industry suggest we will need to project
``plausible'' management even if it is not currently in use in order to
be protective of potential changes in management and therefore in
potential risk. We then evaluate which of these current or projected
management practices for each waste are likely to pose significant risk
based on an assessment of exposure pathways of concern associated with
those practices.
2. Selection of Waste Management Scenarios for Risk Assessment Modeling
of Dyes and/or Pigments Nonwastewaters
The majority of nonwastewaters are landfilled. Based on information
available as we started our risk analyses, we decided to model disposal
of nonwastewaters in both offsite municipal solid waste landfills and a
small number of onsite and offsite nonhazardous industrial waste
landfills. After we began these analyses, ETAD submitted additional
information indicating that our initial information regarding an onsite
landfill was not relevant, as the facility operating that landfill
treats waste by incineration prior to disposal. In addition, we
obtained information from the State of Illinois regarding the offsite
landfill that we had initially identified as an industrial landfill,
clarifying that this landfill in fact accepts municipal wastes.
Consequently, we decided that disposal in an industrial landfill is not
a plausible management practice for these wastes, and we are basing our
proposed listing decision solely on our assessment of disposal in
MSWLFs. Upon receipt of this information, we modified our subsequent
modeling runs to reflect a landfill distribution that was solely made
up of MSWLFs.
The primary difference between modeling industrial nonhazardous
landfills and municipal landfills is that industrial nonhazardous
landfills are slightly smaller than municipal landfills so the
quantities of dyes and/or pigments production waste modeled in an
industrial landfill would be a relatively larger proportion of the
total waste quantities going into the unit. Given the linear nature of
our modeling for the organic loading limits, we do not believe that the
model results would differ significantly if the landfill size
distribution reflected industrial landfills. The preliminary runs that
we conducted on a distribution of industrial and municipal landfills
reflected our preliminary (and incorrect) characterization of some of
the currently used landfills as industrial nonhazardous landfills.
These preliminary results were very similar to the results for MSWLFs
only (that serve as the basis for today's proposal).
We modeled three liner scenarios: unlined, clay-lined, and
synthetic-lined landfills. The risk assessment in section III.G.2.d.i
contains more details about our risk modeling for landfills and the
three liner scenarios. In past listings, EPA has not included the
effect of liners in the modeling of releases from landfills.
Previously, we generally assumed that liners may fail over the long
term, and therefore we modeled landfills as if they were unlined. We
have been reluctant to take liners into account due to the
uncertainties in the long term efficacy of liners and because we lacked
data that we could use to project infiltration rates from a lined
unit.\20\
---------------------------------------------------------------------------

\20\ For example, we argued this most recently in the
chlorinated alphatics listing, where we concluded that uncertainties
regarding the long-term effectiveness of landfill liners were
sufficient to support a decision to list. We emphasized, however,
that this decision was specific to a waste containing high
concentration of mercury, a highly toxic, very persistent
constituent. 65 FR 67101 (Nov. 8, 2000).
---------------------------------------------------------------------------

More recently, EPA has modeled reduced infiltration rates for lined
landfills to support the Guide for Industrial Waste Management. The
Industrial Waste Evaluation Model (IWEM) incorporated models to
evaluate the groundwater protection afforded by various liner
systems.\21\ For modeling composite liners, the IWEM used empirical
data for infiltration rates collected from lined landfills. As part of
the effort to characterize and develop distributions for the
infiltration rates through liners, EPA collected information for
nonhazardous waste management unit liner systems (i.e., the rates of
leachate infiltration through liners).\22\ EPA is today proposing to
use data collected in this effort to construct distributions of
infiltration rates for modeling of Subtitle D MSWLFs.
---------------------------------------------------------------------------

\21\ Industrial Waste Management Evaluation Model (IWEM)
Technical Background Document. EPA530-R-02-012, U.S. EPA, August
2002. See also http://www.epa.gov/epaoswer/non-hw/industd/iwem_tbd.htm
.
\22\ ``Characterization of Infiltration Rate Data to Support
Groundwater Modeling Efforts,'' Draft Final TetraTech, Inc.
September 28, 2001.
---------------------------------------------------------------------------

We believe it is appropriate to consider liners in today's listing
determination for several reasons. First, we have no indication that
these wastes are (or are likely to be) landfilled in cells without
liners. In comments on the earlier listing proposals for dye and
pigment wastes, industry groups (ETAD and CPMA) stated that industry
does not use unlined landfills; ETAD went further and identified the
landfills being used by their members and described the liner systems
in place at these landfills. Second, CERCLA liability concerns create
strong incentives against the operation of such units by landfill
owners and against the placement of these wastes in such units by waste
generators. Third, our data show that the industry uses municipal solid
waste landfills. These units have been subject to the Part 258
standards

[[Page 66179]]

since the regulations were promulgated in 1991. Fourth, we previously
have considered the attenuative properties of liners in prior listing
determinations for surface impoundments (e.g., see the proposal for
listing paint manufacturing wastes at 66 FR 10108, February 13, 2001),
as well as in the Guide for Industrial Waste Management. Finally, we
now have data describing infiltration rates through various liner
systems, allowing us to build distributions reflective of real
landfills. For these reasons, we believe it is now appropriate to
assess the impact of liners on the attenuation of toxicants in waste
management units, where such liners are widely used for the disposal of
the wastes of interest. We request comments on this approach.
Available data suggests that a relatively small portion of the
nonwastewaters from dyes and/or pigments production are combusted and,
consequently, that combustion is a plausible management method. We
chose not to model combustion. In past listing determinations where we
have attempted to assess risks from incineration, we found that the
potential risks from the release of constituents through incineration
would be at least several orders of magnitude below potential air risks
from releases from tanks or impoundments (see listing determination for
solvent wastes at 63 FR 64371, November 19, 1998). Further, it is
difficult to model what goes into combustion units in relation to the
residual constituents that are released from the combustion unit either
in ash or air.\23\ We believe the existing and proposed air regulation
can effectively regulate these combustion units, as described in
section II.E.
---------------------------------------------------------------------------

\23\ Whle other products of incomplete combustion may present
possible risks, it is difficult for us to assess this potential for
the chemicals of concern.
---------------------------------------------------------------------------

Furthermore, we did not model management in Subtitle C landfills.
Subtitle C modeling is unnecessary, since we modeled a less protective
MSWLF scenario. Finally, we also did not model management scenarios
that involved recycling. We had no information to lead us to believe
that such practices involved land placement. As explained below, we
modeled air releases from wastes in tanks and found no risks warranting
listing. We think secondary materials stored in tanks prior to
recycling would pose similarly low risks.
3. Selection of Waste Management Scenarios for Risk Assessment Modeling
of Dyes and/or Pigments Production Wastewaters
As delineated in section III.D, the publicly available data showed
a number of management scenarios of interest for wastewaters from
production of dyes and/or pigments: management in tanks or surface
impoundments prior to discharge to a POTW or under an NPDES permit;
incineration; and fuel blending in industrial furnaces.
We modeled two scenarios: (1) Onsite treatment of wastewater in
tanks, and (2) onsite management of wastewaters in clay-lined and
synthetic-lined surface impoundments. As described in the previous
section, currently operating organic dyes and/or pigments production
facilities manage their wastes in these types of units. We also modeled
unlined surface impoundments, although we did not use these results as
the basis for our listing determination. We believe unlined
impoundments are unlikely to be utilized for untreated wastewater, not
only because our data do not indicate that such units are currently in
use, but also because storage or treatment in an impoundment without
any kind of liner seems unlikely.
For surface impoundments, EPA has recently relied on the
effectiveness of liners in deciding not to list wastewaters from paint
manufacturing.\24\ Although we did not try to model liner performance
for paint wastewaters, we assumed that composite liners provide
significant protection during the relatively short operational life of
an impoundment (30 to 50 years). As noted in the final determination
for paint manufacturing wastes, we believe that the level of protection
afforded by a liner system would be significant (67 FR 16267).
Furthermore, if leaks occurred during its operating life, the unit can
be drained and repaired. Since we do not have data on infiltration
rates for lined surface impoundments, we used calculated infiltration
rates. This is the same approach used for the IWEM guidance, referenced
above for lined landfills; see the Risk Background Document for today's
proposal for more discussion.
---------------------------------------------------------------------------

\24\ See the proposed rule at 66 FR 10108 (Feb. 13, 2001) and
the final rule at 67 FR 16267 (Apr. 4, 2002).
---------------------------------------------------------------------------

We believe it is appropriate to consider liners in modeling surface
impoundments in today's listing determination for reasons similar to
those noted for landfills in the above section. Specifically, our data
indicate that the untreated wastewaters in scope are not (and are not
likely to be) managed in impoundments without liners. Industry groups
(ETAD and CPMA) have confirmed that there are no active unlined surface
impoundments at operating dyes and/or pigments production facilities
that receive untreated in-scope wastes. We believe it is less likely
that unlined landfills would be in operation in the future, given
liability concerns. Also, we are using an approach similar to that we
used for describing infiltration rates through various liner systems
for the IWEM guidance. We request comments on this approach.
We did not assess discharges of wastewaters by dye and/or pigment
facilities under NPDES permits or discharges to POTWs. The discharges
to surface waters are regulated under the Clean Water Act by means of
NPDES permits or national pretreatment standards. Many of these
discharges are excluded from RCRA hazardous waste regulation. See 40
CFR 261.4(a)(1) and (2). We also chose not to model combustion of
wastewaters in incinerators, cement kilns or industrial furnaces. In
the previous section on nonwastewaters, we explain the Agency's
rationale for not modeling combustion or fuel blending. That rationale
applies equally to wastewaters.

F. What Factors Did EPA Incorporate Into Its Quantitative Risk
Assessment?

In making listing determinations, the Agency considers the listing
criteria set out in 40 CFR 261.11. The criteria provided in 40 CFR
261.11(a)(3) include eleven factors for determining ``substantial
present or potential hazard to human health and the environment.'' Nine
of these factors, as described generally below, are incorporated into
EPA's risk assessment for the wastes of concern:
[sbull] Toxicity (Sec. 261.11(a)(3)(i)) is considered in
developing the health benchmarks used in the risk assessment modeling.
[sbull] Constituent concentrations (Sec. 261.11(a)(3)(ii)) and the
quantities of waste generated (Sec. 261.11(a) (3)(viii)) are combined
in the calculation of mass loading levels that pose a hazard.
[sbull] Potential to migrate, persistence, degradation, and
bioaccumulation of the hazardous constituents and any degradation
products (Sec. Sec. 261(a)(3)(iii), 261.11(a)(3)(iv), 261.11(a)(3)(v),
and 261.11(a)(3)(vi)) are all considered in the design of the fate and
transport models used to determine the concentrations of the
contaminants to which individuals are exposed.

[[Page 66180]]

As discussed in the previous section, we considered two factors,
plausible mismanagement and other regulatory actions ((Sec. Sec.
261.11(a)(3)(vii) and 261.11(a)(3)(x)) in establishing the waste
management scenario(s) modeled in the risk assessment.
One of the remaining factors of the eleven listed in 261.11(a)(3)
is consideration of damage cases (Sec. 261.11(a)(3)(ix)); this is
discussed in section G.5 below. The final factor allows EPA to consider
other factors as appropriate (Sec. 261.11(a)(3)(xi)).
EPA conducted analyses of the risks posed by the wastes evaluated
for this listing to determine the mass loadings of constituents that,
if found in dyes and/or pigments production wastes, would meet the
criteria for listing set forth in Sec. 261.11(a)(3). Section G
discusses the human health risk analyses and ecological risk screening
analyses EPA conducted to support our proposed listing determinations
for dyes and/or pigments production wastes. We consider the risk
analyses in developing our listing decisions for each of the wastes.

G. Overview of the Risk Assessment

We conducted a risk assessment to calculate the mass loadings of
individual constituents that can be present in waste and remain below a
specified level of risk to both humans and the environment.
To establish these listing levels, we: (1) Selected constituents of
potential concern in wastes from dyes and/or pigments production, (2)
evaluated plausible waste management scenarios (as described previously
in section III.E), (3) calculated exposure concentrations by modeling
the release and transport of the constituents from the waste management
unit to the point of exposure, and (4) calculated waste constituent
loadings that are likely to pose unacceptable risk. In addition, we
conducted a screening level ecological risk assessment to ensure that
the loading limits were protective of the environment.
The following sections explain the selection of the constituents
that we evaluated in the risk assessment and present an overview of the
analysis we used to calculate risk-based listing levels for
nonwastewaters and wastewaters from dyes and/or pigments production.
Details of the risk assessment are provided in the Risk Assessment
Background Document, which is in the docket for today's rule.
1. How Did EPA Chose Potential Constituents of Concern?
Our overall goal in choosing potential constituents of concern was
to identify a list of chemicals that could reasonably be expected to be
associated with wastes from the production of azo, triarylmethane,
perylene or anthraquinone dyes or pigments and that could be derived
entirely from sources that were not restricted by the Magruder
injunction.
We first created a primary list of all of the chemicals identified
in a series of non-CBI data sources, and then removed from that list
those compounds not expected to have toxicity benchmarks and those
chemicals not expected to be directly linked with the manufacture of
the dyes and pigments of concern. This process ultimately resulted in
the identification of 35 constituents of concern (CoC) (see Table III-1
below) that we further assessed via risk assessment. The details of
this analysis are described in ``Background Document: Development of
Constituents of Concern for Dyes and Pigments Listing Determination,''
available in the docket for today's proposal.

Table III-1.--Dyes and Pigments Constituents of Concern
------------------------------------------------------------------------
Chemical compound Synonyms CAS
------------------------------------------------------------------------
Aminoanthraquinone............. 2-Aminoanthraquinone... 117-79-3
Aniline........................ Benzenamine; 62-53-3
aminobenzene.
o-Anisidine.................... 2-Methoxyaniline, 2- 90-04-0
methoxybenzenamine.
Azobenzene..................... Diphenyldiazene, 103-33-3
diphenyl diimide.
Barium......................... ....................... 7440-39-3
Benzaldehyde................... ....................... 100-52-7
Benzidine...................... ....................... 92-87-5
4-4'-bis(dimethylamino) ....................... 90-94-8
benzophenone.
4-Chloroaniline................ p-Chloroaniline........ 106-47-8
Copper......................... ....................... 7440-50-8
p-Cresidine.................... 2-Methoxy-5- 120-71-8
methylbenzenamine, 3-
amino-4-methoxytoluene.
p-Cresol....................... 4-Methylphenol......... 106-44-5
1,2-Dichlorobenzene............ o-Dichlorobenzene...... 95-50-1
3,3'-Dichlorobenzidine......... 3,3'-Dichlorobiphenyl- 91-94-1
4,4'-ylenediamine.
3,3'-Dimethoxybenzidine........ Dianisidine............ 119-90-4
2,4-Dimethylaniline............ 2,4-Xylidine........... 95-68-1
N,N-Dimethylaniline............ N,N-Dimethylbenzenamine 121-69-7
3,3-'Dimethylbenzidine......... 4,4'-bi-o-Toluidine, 119-93-7
diaminoditolyl.
Diphenylamine.................. N-Phenylbenzeneamine... 122-39-4
Formaldehyde................... ....................... 50-00-0
Lead........................... ....................... 7439-92-1
Methanol....................... ....................... 67-56-1
4,4'-Methylenedianiline........ p-p'-Diaminodiphenyl 101-77-9
methane; 4,4'-
methylene-
bis[benzenamine].
Naphthalene.................... ....................... 91-20-3
5-Nitro-o-anisidine............ 2-methoxy-5- 99-59-2
nitroaniline.
5-Nitro-o-toluidine............ 2-methyl-5- 99-55-8
nitroaniline; 2-amino-
4-nitrotoluene.
Phenol......................... ....................... 108-95-2
1,2-Phenylenediamine........... o-phenylenediamine, 2- 95-54-5
aminoaniline.
1,3-Phenylenediamine........... 3-Aminoaniline, m- 108-45-2
phenylenediamine.
1,4-Phenylenediamine........... 4-aminoaniline; p- 106-50-3
Phenylenediamine.
Sodium nitrite................. ....................... 7632-00-0
Toluene-2,4-diamine............ 4-m-tolylenediamine, 95-80-7
2,4-diaminotoluene, 4-
methyl-m-
phenylenediamine.
o-Toluidine.................... 2-toluidine; 2- 95-53-4
aminotoluene.
p-Toluidine.................... 4-toluidine; 4- 106-49-0
aminotoluene.

[[Page 66181]]

Zinc........................... ....................... 7440-66-6
------------------------------------------------------------------------

Our primary data sources (described in section II.H of this notice
and in the public docket for today's rule) used to develop the CoC
lists include:
[sbull] Sampling and analytical data collected by EPA (as
summarized in Table 1 of the Magruder consent order) and split sample
analytical data compiled and provided by CPMA. These data characterized
wastes generated from dyes and/or pigments production.
[sbull] Non-CBI RCRA Sec. 3007 survey data characterizing wastes
from dyes and/or pigments production.
[sbull] A list of 22 aromatic amines associated with azo dyes
regulated by the European Union.
[sbull] Intermediates associated with dye and pigment products
reported to be manufactured in the U.S. in the ``Colour Index,'' Third
Edition.
[sbull] Public comments on the prior 1994 and 1999 proposed listing
determinations for dyes and pigment wastes.
[sbull] TRI releases reported by known manufacturers of dyes and/or
pigments impacted by this proposal.
We found data linking each of the 35 CoCs listed above to dyes and/
or pigments manufacture from at least two (and generally from at least
four) of these data sources, and often found additional corroborating
data from other more general encyclopedia and chemical dictionaries. In
addition, we found toxicity benchmark data for each of these CoCs,
allowing us to conduct risk assessment modeling of these compounds. As
an example, we identified 4-chloroaniline as a CoC because (1) it was
detected in our and CPMA's analytical data; (2) it was confirmed as
present in dyes and/or pigments wastes in public comments; (3) it was
reported to be released by known dyes and/or pigments manufacturers in
the TRI; (4) it is regulated by the European Union as an aromatic amine
linked to azo dyes; and (5) we identified toxicity benchmarks that
allowed us to conduct risk assessment modeling of this compound.
2. What Was EPA's Approach to Conducting Human Health Risk Assessment?
The risk analysis for the dyes and/or pigments production wastes
estimates the mass loadings of individual constituents that can be
present in each waste and still provide a specified level of protection
to human health and the environment. The risk assessment evaluates
waste management scenarios that may occur nationwide. We selected a
national analysis that captures variability in meteorological and
hydrogeological conditions for this listing determination because
facilities that manage the wastes of interest are found in many areas
of the country.
For this listing determination, we defined the target level of
protection for human health to be an incremental lifetime cancer risk
of no greater than one in 100,000 (10^-5) for carcinogenic
chemicals and a hazard quotient of 1.0 for noncarcinogenic chemicals.
The hazard quotient is the ratio of an individual's chronic daily dose
of a constituent to the reference dose for that constituent, where the
reference dose is an estimate of the daily dose that is likely to be
without appreciable risk of deleterious effects over a lifetime.
To determine the allowable mass loadings for constituents of
concern, we used a probabilistic analysis to calculate the exposure to
nearby residents from disposal of those constituents in the types of
waste management units used by the dyes and pigments industries. We
then set the allowable loading level such that the exposure to each
constituent would not exceed the target level of protection for 90
percent of the nearby residents (adults and children). Thus, the
allowable mass loadings meet a target cancer risk level of
10^-5 or hazard quotient of one for 90 percent of the
receptor scenarios we evaluated. We calculated estimates of exposure in
the upper end of the distribution (i.e., at or above the 90th
percentile), while avoiding estimates that are beyond the true
distribution. EPA guidance for risk characterizations states that ``the
`high end' of the risk distribution (generally the area of concern for
risk managers) is conceptually above the 90th percentile of the actual
(either measured or estimated) distribution. This conceptual range is
not meant to precisely define the limits of this descriptor, but should
be used by the assessor as a target range for characterizing `high-end
risk.' '' \25\ Therefore, a high-end estimate that falls within the
range (at or above the 90th percentile but still realistically on the
distribution) is a reasonable input to a decision.
---------------------------------------------------------------------------

\25\ ``Guidance on Risk Characterization for Risk Managers and
Risk Assessors,'' by then Deputy Administrator F. Henry Habicht,
1992.
---------------------------------------------------------------------------

We believe that the 90th percentile levels from our probabilistic
analysis are appropriate to set the levels for this mass loadings-based
listing. The dyes and/or pigments production waste that remains
nonhazardous at the proposed levels would pose risks below that
indicated by the benchmark risk level at the 90th percentile. We also
used the 90th percentile risk levels in two prior proposed
concentration-based listings. See the proposed rules for wastes from
paint manufacturing (66 FR 10060, February 13, 2001) and two dyes and/
or pigments wastes (64 FR 40192, July 23, 1999).\26\
---------------------------------------------------------------------------

\26\ For traditional listing decisions, we have considered a
range of probabilistic results at or above the 90th percentile,
e.g., see the proposed listings for wastes from the production of
chlorinated aliphatics (64 FR 46476, August 25, 1999) and inorganic
chemicals (65 FR 55684 September 14, 2000).
---------------------------------------------------------------------------

A probabilistic analysis calculates distributions of results (in
this case a protective mass loading for each constituent) by allowing
some of the parameters used in the analysis to have more than one
value. The model is run numerous times (for this analysis we generally
ran the model 10,000 times), each time with different values selected
from the distributions of input parameters. A parameter is any one of a
number of inputs or variables (such as distance between the waste
management unit and the receptor) required for the fate and transport
and exposure models and equations that EPA uses to assess risk. In the
probabilistic analysis, we vary sensitive parameters for which
distributions of data are available.
Parameters varied for this analysis include waste management unit
size, parameters related to the location of the waste management unit
such as climate and hydrogeologic data, location of the receptor, and
exposure factors (e.g., drinking water ingestion rates). In some cases,
to maintain the inherent correlation between parameters, we treat
multiple parameters as a single parameter for the purpose of conducting
the analysis. We do this to prevent inadvertently combining parameters
in our analysis in ways that are unrealistic. For example, we treat
environmental setting (location) parameters such as climate, depth to
groundwater, and

[[Page 66182]]

aquifer type as a single set of parameters. We believe that, for
example, allowing the climate from one location to be paired with the
depth to groundwater from another location could result in a scenario
that would not represent reality.
We set some of the parameters in the probabilistic analysis as
constant values because (1) there are insufficient data to develop a
probability distribution function, and (2) from previous listing
determinations, the analysis has been shown to be insensitive to the
value of the parameter.
a. What Waste Management and Release Scenarios Were Modeled?
We evaluated three waste management units that represent plausible
management scenarios that are likely destinations for dyes and/or
pigments production waste. The modeled units were nonhazardous
landfills, surface impoundments, and wastewater treatment tanks.
Section III.E describes in detail why these waste management units were
selected for evaluation in the risk assessment. The waste management
scenarios for each of these units were created using publicly available
information reported and provided by industry on the management of
their dyes and/or pigments production wastes. In addition, we used
information on the national distributions of waste management unit
characteristics (e.g., size and waste capacity) collected with surveys
conducted for other rulemakings to establish the characteristics of the
waste management units.
As noted in section III.E.2, we originally believed that facilities
managed dyes and/or pigments wastes in onsite or offsite nonhazardous
landfills that are not MSWLFs, i.e., Subtitle D ``industrial
landfills.'' Thus, our initial modeling of landfill scenarios used a
distribution of landfills that included a small fraction of industrial
units (91 percent MSWLFs and 9 percent industrial landfills). Further
review of the available information showed that we did not have any
evidence that industrial landfills were currently in use for these
wastes. Therefore, subsequent risk analyses used a landfill
distribution made up of MSWLFs only. As previously discussed, the
differences between the industrial and MSW landfill scenarios were
relatively minor; this change did not have a significant impact on the
risk results. Also, in the initial analyses, we inadvertently used a
landfill life of forty years, while for subsequent modeling we
corrected this to a thirty-year life. We have used a thirty-year life
in recent listings, and we believe a thirty-year life is more
appropriate for MSWLFs.\27\ Comparisons of some modeling runs using the
different landfill lives and distributions showed that these were not
significant factors.
---------------------------------------------------------------------------

\27\ ``Calculation of Municipal Landfill Active Life.'' U.S.
EPA. November 10, 2003.
---------------------------------------------------------------------------

We have developed distributions for each type of waste management
unit that characterizes the units' capacities and dimensions (e.g.,
area and depth). These dimensions and operating characteristics are
important determinants of the extent to which a contaminant may be
released from the unit. We assume specific operational lifetimes
(between 30-50 years) for each type of waste management unit, as well
as different lengths of time during which constituents are assumed to
be released from these units.
We determined that releases from all of the waste management units
(tanks, landfills, and surface impoundments) can occur through release
of vapor emissions to the air. We evaluated air releases for organic
constituents that had a toxicity benchmark for the inhalation exposure
route. Seventeen of the 30 organic constituents assessed did not have
adequate benchmarks for such analysis. We did not assess the metals for
vapor emissions because they do not volatilize. We assumed that
particulate emissions to the air from solids disposed in landfills
would be minimal because municipal landfills are typically required to
have daily cover (see regulations for daily cover at Sec. 258.21).
Therefore, we did not consider particulate emissions for either organic
or metal constituents in this assessment.
For landfill and surface impoundment scenarios, we determined that
releases could also occur through leaching of waste contaminants into
the subsurface to both groundwater and surface water. The Agency
assumed that landfills and surface impoundments followed standard
construction and operational requirements such that runoff and water
erosion did not occur. We assumed that tanks were sufficiently
impermeable that they were highly unlikely to release any significant
amount of waste to the subsurface.
b. What Exposure Scenarios did EPA Evaluate?
We assumed that exposure from vapor emissions would be through
inhalation of ambient air, while exposure to contaminants in
groundwater would be through drinking and through inhalation of
volatile contaminants released during showering. We did not add the
risks from vapor releases and from groundwater contamination because
vapor releases reach nearby residents in a matter of hours, while
releases to groundwater take many years to migrate to nearby wells. For
adults, we did add risks from both drinking and showering with
contaminated groundwater. We assumed small children took baths instead
of showers, so we did not model the risk of inhaling volatile chemicals
while showering with groundwater for them. Previous analyses have
indicated that exposure to chemicals volatilized from groundwater
during household uses other than showering are very low compared to
exposures in the bathroom during and immediately after showering.
Therefore, we did not model exposure from other household uses of
groundwater.
As noted above, particulate emissions to the air from solids
disposed in landfills would be minimal because municipal landfills are
required to have daily cover. In addition, releases from landfills or
surface impoundments through volatilization are unlikely to lead to
significant deposition and food chain uptake because this release
pathway would only be significant for constituents that are more
volatile than those of concern for dyes and/or pigments production
wastes.
c. How did EPA Quantify Each Receptor's Exposure to Contaminants?
The amount of contaminant ingested or inhaled by a receptor is a
function of the concentration of the contaminant in the water or air
and various exposure factors, such as how much drinking water the
receptor consumes each day (the intake rate), how much air the receptor
breathes, the number of years the receptor is exposed (the exposure
duration), and how often the receptor is exposed (the exposure
frequency). Another important exposure factor affecting risk is the
body weight of the receptor, since most toxicity measures are expressed
as dose per unit of body weight. Our primary source of exposure factors
is the ``Exposure Factors Handbook'' published by EPA in August 1997.
The one situation where we do not calculate dose to determine risk
is the case when we use the reference concentrations (RfCs) to assess
health impacts. RfCs are expressed as ambient air concentrations which
are protective of human health; as such, they already have the
appropriate exposure factors (inhalation rate, body weight) included in
their derivation.
Children are an important sub-population to consider in a risk
assessment because, compared to adults, children drink more water and
breathe more air per unit of body weight.

[[Page 66183]]

Therefore, their dose per unit of body weight at any particular time is
higher than an adult's. To evaluate childhood exposure for this
analysis, we evaluated a child whose exposure begins at a random age
between one and six years old. We then aged the child for the number of
years defined by the randomly selected exposure duration. As children
mature, their physical characteristics and behavior patterns change. To
capture these changes in the analysis, we divided the life of a
resident who moved into the home as a child into several cohorts:
cohort 1 (ages 1-5), cohort 2 (ages 6 to 11), cohort 3 (ages 12 to 19),
and cohort 4 (ages 20 to 70). Each cohort has a discrete distribution
of exposure parameters that are used to calculate exposure to an
individual, so our analysis updated the exposure factors as the child
aged from one cohort to another.
d. How Did EPA Predict the Release and Transport of Constituents
From a Waste Management Unit to Receptor Locations?
We conducted contaminant fate and transport modeling to determine
what the concentrations of contaminants will be in the air or
groundwater that the receptor comes into contact with. These
concentrations are called ``exposure point concentrations.'' There are
a number of computer-based models and sets of equations that we use to
predict exposure point concentrations. In the following sections, we
briefly discuss these models and equations and their application in the
risk analyses.
(i) Predicting Release of Constituents. Landfill Partitioning
Model. The landfill model is designed to simulate the gradual filling
of an active landfill and the long-term releases from the active and
closed landfill cells. We also used this model in the February 13, 2001
proposed listing determination for paint production wastes (66 FR
10060). The design assumes that the landfill is composed of a series of
vertical cells of equal volume that are filled sequentially. We assumed
that each cell requires one year to be filled. The formulation of the
landfill model is based on the assumption that the contaminant mass in
the landfill cells might be linearly partitioned into the aqueous,
vapor, and solid phases. The partitioning coefficients are based on
those reported in literature, and are listed in the Risk Assessment
Background Document. The model simulates the active lifetime of the
landfill (30 years) and continues simulating releases until less than 1
percent of the peak mass is left or for a total of 200 years, whichever
occurs first.
We assumed three different liner scenarios, unlined landfills where
the underlying substrate is native soil (represented by a national
distribution of soil types), landfills with compacted clay liners, and
landfills with composite liners. For the unlined and clay-lined
scenarios, we used EPA databases of landfill infiltration rates and
regional recharge rates (calculated using the Hydrologic Evaluation of
Landfill Performance (HELP) water-balance model). For the composite
liner scenario, we used empirical distributions of infiltration rates.
The empirical infiltration rates were compiled from measured leak
detection system flow rates for composite lined landfill cells.\28\
There are several broad categories of liner types now in use. A typical
composite liner is made up of a geosynthetic liner (GM) and a clay
liner of some kind underneath. The clay liner is often a compacted clay
liner (CCL). A CCL is composed of natural mineral materials, a
bentonite-soil blend, and other materials placed and compacted in
layers to build up a thick liner system (typically at least two feet
thick). Another clay-based liner is a geosynthetic clay liner (GCL). A
GCL is a relatively thin layer of processed clay (typically bentonite)
either bonded to a geomembrane or fixed between two layers of
geotextile. GCLs were developed relatively recently and are typically
used with a GM in a composite liner.
---------------------------------------------------------------------------

\28\ ``Characterization of Infiltration Rate Data to Support
Groundwater Modeling Efforts,'' Draft Final. TetraTech, Inc.
September 28, 2001.
---------------------------------------------------------------------------

In the composite liner scenario (annotated as SL) we modeled, we
used a distribution of composite liners used at MSWLFs, including GM/
GCLs, geomembrane/compacted clay liners (GM/CCLs), and a few examples
of other combinations of liners. In developing this distribution, we
excluded infiltration data from nonmunicipal landfills (Subtitle C
landfills and landfills that accepted specialized wastes, such as ash)
because our data indicate that all landfills reported to be used by
dyes and/or pigments manufacturers are municipal solid waste landfills,
and because we believe it is not appropriate to include data from units
that accept very different waste (e.g., hazardous wastes) and have
different design requirements. In addition, we tried to use
infiltration data that represented infiltration through a composite
liner, i.e., a combination of synthetic and clay liner that is
consistent with the design requirements in Sec. 258.40. For this
reason, we excluded infiltration data that only represented
infiltration through a single liner, such as the geomembrane liner by
itself. Our evaluation of the results for these different liner
assumptions is given in section IV.A.
We also modeled a select group of landfills that used geomembrane/
geosynthetic clay liners (GM/GCL). The GM/GCL data set, unlike our
composite liner data set, excluded all data from liner systems that
included compacted clay liner (CCL). The CCL infiltration rates may
include significant amounts of water expelled from the CCL as waste is
placed in the landfill (``consolidation water'').\29\ The consolidation
water is difficult to account for and therefore may cause our
infiltration rate data to be somewhat overstated. However, we believe
that the contribution from consolidation water is not likely to be
significant at the higher infiltration rates that are most important to
the modeling results (i.e., the 90th percentile probabilistic results
are likely to be weighted toward the high end portion of the
distribution of infiltration rates where any impact from consolidation
water should be minimal). While the modeling results for the composite
liner may be slightly higher due to this factor, we do not believe this
materially affects the results. We also believe that the larger
composite liner data set provides a better distribution of infiltration
rates. The data used for the GM/GCL modeling were fairly limited in
number and represented only a relatively small subset of the landfill
units with data. Therefore, we relied on the composite modeling results
(the SL scenario) for setting the listing limits proposed in this
notice. The GM/GCL scenario results are provided in the Risk Assessment
Background Document in the docket for today's proposal.
---------------------------------------------------------------------------

\29\ ``Characterization of Infiltration Rate Data to Support
Groundwater Modeling Efforts,'' Draft Final. Tetra Tech, Inc.
September 28, 2001.
---------------------------------------------------------------------------

As usual for listing landfill modeling, we also assumed that there
are adequate controls of runoff and erosion from the unit, preventing
releases to groundwater or air from these routes. We assumed that the
cover at closure is a soil cover that still permits volatilization. We
also assumed that landfills would release leachate to the subsurface.
Based on the design assumptions above, we simulated the annual
release of chemical mass by leaching to the unsaturated zone beneath
the landfill and volatilization to the air. Within the landfill, we
simulated losses of mass through anaerobic biodegradation (i.e.,
degradation processes that occur in an oxygen-free environment).
Hydrolysis

[[Page 66184]]

was not a significant factor for any of the constituents of concern. We
used the highest 9-year average leachate concentration predicted by the
partitioning model as input into EPA's Composite Model for Leachate
Migration with Transformation Products (discussed in section ii below).
In modeling biodegradation, we used anaerobic degradation rates
that were available in our primary reference.\30\ This reference did
not provide biodegradation rates for seven constituents of concern:
aniline, azobenzene, benzaldehyde, 4-chloroaniline, 2,4-
dimethylaniline, 1,2-phenylenediamine, and o-toluidine. For these
chemicals, we selected conservative surrogates for assigning
biodegradation rates. In selecting surrogates, we considered likely
degradation pathways, potential interim products, and chemical
structure. We used surrogates that were similar in structure and had
similar or identical functional groups; in some cases, the surrogates
were closely related isomers with the same chemical formula (e.g., we
used the rate for 1,4-phenylenediamine for 1,2-phenylenediamine). The
use of surrogates is discussed in more detail in the Risk Assessment
Background Document. We solicit comment on the use of surrogates for
estimating biodegradation rates. We believe that using appropriate
surrogates is preferable to assigning a default value of zero for the
biodegradation rate. However, we also modeled these seven constituents
by assuming a zero degradation rate for comparison. The mass loading
limits resulting from modeling landfill releases without the surrogate
biodegradation rates for these constituents are shown in Table IV-4 in
section IV.A.4.
---------------------------------------------------------------------------

\30\ Howard, P.H., R.S. Boethling, W.F. Jarvis, W.M. Meyland,
E.M. Michalenko, and H.T. Printup (ed.). 1991. Handbook of
Environmental Degradation Rates. Lewis Publishers.
---------------------------------------------------------------------------

The partitioning model incorporates other assumptions intended to
improve the efficiency of the model. These assumptions are described in
detail in the Risk Assessment Background Document. The assumptions
included the lack of lateral transport between cells, simulation of
only a single cell and then aggregation of results based on the time
each cell is filled, and the assumption that waste is added at a
constant concentration and at a constant rate.
We do not believe that the wastes evaluated for the landfill
scenario will contain or form nonaqueous phase liquids (NAPLs). NAPLs
would be a problem only for wastes containing high concentrations of
liquid organic material. Regulations for municipal landfills restrict
the placement of any bulk or containerized liquids in a MSWLF unit
(Sec. 258.28). Further, we have no information to indicate that such
wastes would be destined for disposal in landfills. For example, the
TRI releases reported for the constituents of concern do not suggest
large quantities of organics are disposed in landfills. We expect
wastes with high organic content to undergo thermal treatment, such as
energy recovery. Therefore we did not model NAPL migration.
Surface Impoundment Partitioning Model. The surface impoundment
model simulates the disposal of liquid wastes in a surface impoundment
and the releases of chemicals during the lifetime of the unit. We also
used this model in the September 14, 2000 proposed listing
determination for inorganic chemical manufacturing wastes (65 FR 55684)
and the February 13, 2001 proposed listing determination for paint
production wastes (66 FR 10060). The entire time series of leachate
concentrations are then used as input into EPA's Composite Model for
Leachate Migration with Transformation Products (see section ii) which
estimates the movement of the plume through the saturated and
unsaturated zone over a 10,000 year time period. The time series of
emissions for both vapors and particulates are also utilized along with
air dispersion modeling results to estimate ambient air concentrations.
We assume that the impoundments are properly designed and operated such
that runoff and erosion do not occur. We assume that the unit is not
covered. The model assumes that the waste in the impoundment consists
of two phases: Aqueous liquid and sediment. The model simulates the
changes at the bottom of the impoundment over time as settled solids
fill pore space in native soils and act to reduce chemical transport to
underlying soils and groundwater. In addition, the model allows for a
fraction of each surface impoundment to be aerated, which enhances
biodegradation and increases volatilization of some chemicals. The
surface impoundment is assumed to operate 50 years and then undergoes
clean closure (that is, all the waste is removed from the unit).
We modeled three liner systems for the surface impoundments: No
liner, clay liner, and composite liner. The infiltration rates for
unlined and clay-lined units were calculated internally by the
groundwater model we used (EPACMTP). For the composite-lined surface
impoundment, we calculated infiltration rates assuming a distribution
of leak densities assembled from a survey of composite-lined units.\31\
This approach is described in the Risk Assessment Background Document.
---------------------------------------------------------------------------

\31\ ``Characterization of Infiltration Rate Data to Support
Groundwater Modeling Efforts,'' Draft Final. Tetra Tech, Inc.
September 28, 2001.
---------------------------------------------------------------------------

Based on the design assumptions, the surface impoundment module
simulates annual release of leachate to the unsaturated zone and
volatile emissions to the air. The model does not account for
redeposition of volatiles into the unit from precipitation. The model
accounts for various biological, chemical, and physical processes in
the liquid phase, including hydrolysis, volatilization, sorption,
settlement, resuspension, growth and decay of solids, and activated
biodegradation (degradation which is dependent on the amount of biomass
present). For the solid phase, the model accounts for anaerobic
biodegradation in the sediments and has the ability to account for
hydrolysis, although the hydrolysis rates for the constituents of
concern were all zero. As noted above for the landfill partition model,
we lacked biodegradation rates for seven constituents. As described
previously, we used surrogates to estimate aerobic and anaerobic
biodegradation rates for these constituents.
Tank Emissions Model. The tank model simulates time-varying
releases of constituents to the atmosphere. The treatment tank is
divided into two primary compartments: A liquid compartment and a
sediment compartment. Mass balances are performed on these primary
compartments at time intervals small enough that the hydraulic
retention time in the liquid compartment is not significantly impacted
by the solids settling and accumulation. In the liquid compartment,
there is flow both in and out of the waste management unit (WMU).
Solids generation occurs in the liquid compartment due to biological
growth; solids destruction occurs in the sediment compartment due to
sludge digestion. Using a well-mixed assumption, the suspended solids
concentration within the WMU is assumed to be constant throughout the
tank. However, some stratification of sediment is expected across the
length and depth of the WMU so that the effective total suspended
solids (TSS) concentration within the tank is assumed to be a function
of the WMU's TSS removal efficiency rather than equal to the effluent
TSS concentration. The liquid (dissolved) phase

[[Page 66185]]

contaminant concentration within the tank, however, is assumed to be
equal to the effluent dissolved phase concentration (i.e., liquid is
well mixed). The time series of emissions for vapors is utilized along
with air dispersion modeling results to estimate ambient air
concentrations.
Biological treatment occurs in treatment tanks due to both aerobic
and anaerobic biodegradation. As noted above for the landfill partition
model, we lacked biodegradation rates for seven constituents. Thus, as
described previously, we used surrogates to estimate aerobic and
anaerobic biodegradation rates for these constituents.
(ii) Predicting Transport of Constituents. Air Dispersion Model The
air dispersion model uses information on meteorology (e.g., wind speed,
wind direction, temperature) to estimate the movement of constituents
associated with contaminant releases through the atmosphere and the
constituent concentrations in the air at the locations of potential
receptors. The air concentrations for this analysis are based on the
air dispersion factors from the Industrial Waste Air (IWAIR) model.
These dispersion factors were calculated based on national
distributions of location, waste management unit surface areas, and
distance to receptors. As noted above, releases through volatilization
are unlikely to lead to significant deposition and food chain uptake,
and thus, deposition was not considered.
The calculated air concentrations were then averaged over the
exposure duration. For the exposure duration, we used a time period
centered around the occurrence of the peak concentration. These average
concentrations were used to determine the receptor's exposure and risk.
Groundwater Model We used the EPA Composite Model for Leachate
Migration with Transformation Products (EPACMTP) to model the
subsurface fate and transport of contaminants that leach from the waste
management units (landfills and surface impoundments) and migrate to a
residential drinking water well. We assume that the soil and aquifer
are uniform porous media and that flow and transport is described by
Darcy's law and the advection-dispersion equation, respectively.
EPACMTP accounts for the following processes affecting contaminant
fate and transport: Advection, hydrodynamic dispersion, equilibrium
sorption by the soil and aquifer solids (both in the unsaturated and
saturated zones), and contaminant hydrolysis. EPACMTP does not account
for preferential pathways such as fractures, macropores, or facilitated
transport (i.e., any chemical process that has the potential to speed
the transport of a pollutant beyond what is expected), which may
increase the migration of constituents. Conversely, while the model has
the capability of modeling biodegradation in groundwater, we do not
have any appropriate coefficients to apply in the subsurface, so we do
not account for the potential decrease in constituent migration.
The groundwater pathway consists of two components: Flow and
transport in the vadose zone (the unsaturated zone directly below the
unit), and flow and transport in the saturated zone. The primary
transport mechanisms are downward movement along with infiltrating
water flow in the unsaturated zone and movement along with ambient
groundwater flow in the saturated zone. The advective movement in the
unsaturated zone is one-dimensional, while the saturated zone module
accounts for three-dimensional flow and transport. The model also
considers mixing due to hydrodynamic dispersion in both the unsaturated
and saturated zones.
In the unsaturated zone, flow is gravity-driven and prevails in the
vertically downward direction. Therefore, the flow is modeled in the
unsaturated zone as one-dimensional in the vertical direction. It is
also assumed that transverse dispersion (both mechanical dispersion and
molecular diffusion) is negligible in the unsaturated zone. This
assumption is based on the fact that lateral migration due to
transverse dispersion is negligible compared with the horizontal
dimensions of the WMUs. In addition, this assumption is environmentally
protective because it allows the leading front of the constituent plume
to arrive at the water table with greater peak concentration.
In the saturated zone, the movement of constituents is primarily
driven by ambient groundwater flow, which in turn is controlled by a
regional hydraulic gradient and hydraulic conductivity in the aquifer
formation. The model does take into account the effects of infiltration
from the waste source as well as regional recharge into the aquifer.
The effect of infiltration from the waste source is to increase the
horizontal and vertical spreading of the plume, while the effect of
regional recharge outside of the waste source is to cause a downward
dip in the movement of the plume as it moves in the down gradient
groundwater flow direction.
In addition to advective movement along with groundwater flow, the
model simulates mixing of contaminants with groundwater due to
hydrodynamic dispersion, which acts in the longitudinal, (i.e., along
the groundwater flow direction), as well as in horizontal and vertical
transverse directions. The rate of movement of contaminants is strongly
affected by chemical-specific sorption reactions in both the
unsaturated and saturated zone.
e. What Are the Human Health Toxicities of the Constituents of
Concern?
To characterize the risk from human exposures to the constituents
of concern, toxicity information on each constituent of concern was
integrated with the results of exposure assessment. Chronic human
health benchmarks were used in this risk assessment to evaluate
potential noncancer and cancer risks. We use reference doses (RfDs) and
reference concentrations (RfCs) to evaluate noncancer health impacts
from oral and inhalation exposures, respectively. Oral cancer slope
factors (CSFs), inhalation unit risk factors, and inhalation CSFs are
used to evaluate risk for carcinogens. The benchmarks are chemical-
specific and do not vary between receptors (i.e., residents, farmers,
recreational fishers) or age groups. We used several sources to obtain
human health benchmarks.
Health benchmarks for this risk assessment were obtained primarily
from the most recent Integrated Risk Information System (IRIS) and from
provisional benchmarks approved by EPA's Office of Research and
Development. Other sources included EPA's most recent Health Effects
Assessment Summary Tables (HEAST), Agency for Toxic Substances and
Disease Registry minimal risk levels, California Environmental
Protection Agency (CalEPA) chronic inhalation reference exposure
levels, and CalEPA cancer potency factors. For lead, we used EPA's
drinking water action level for lead of 0.015 mg/L for the groundwater
pathway. We also used a drinking water action level for the groundwater
pathway analysis for copper since an ingestion benchmark was not
available.
Section 7 of the Risk Assessment Background Document contains the
toxicological information used in our analysis. The studies used as the
basis for each of these benchmarks have been reviewed, along with
reference to the complete studies, and are presented in section 7 of
the Risk Assessment Background Document.

[[Page 66186]]

f. What Are the Risk Assessment Results for Nonwastewaters?
We developed mass loading limits for nonwastewaters managed in a
landfill. We calculated risk-based mass loading limits for the air and
groundwater pathways. Table III-2 shows the loading limits derived from
probabilistic analysis for the landfill groundwater pathway for several
liner scenarios: No liner (NL), a compacted clay liner (CL), and a
range of composite synthetic/clay liner (SL).
Reviewers should note that inputs used in the modeling to support
today's proposal may change, and minor modifications to the model
itself may be made as a result of ongoing internal quality assurance/
quality control reviews and public comments. As a consequence, the
proposed constituent levels may change as well. Reviewers should bear
in mind that levels that increase or decrease sufficiently could result
in adding or deleting constituents from the listing, based on whether
the risk-based levels are likely to occur in dyes and/or pigments
production wastes.
We propose to eliminate constituents from further consideration for
nonwastewaters if the calculated allowable loading exceeds 10,000 kg/
yr. Our basis for this is that mass loading limits for nonwastewaters
in excess of 10,000 kg/yr are implausible, because such a loading would
require waste concentrations that are unlikely to occur. For example,
using our estimated average annual quantity of wastewater treatment
sludge (1,894 metric tons/year (MT/yr)),\32\ a loading of 10,000 kg/yr
would correspond to a waste concentration above 5,000 ppm. Such a high
concentration is highly unlikely in typical nonwastewaters, as shown by
the available analytical data for dye and/or pigment wastes.\33\ The
results in Table III-2 only show the results for the constituents that
yielded loadings that were below the 10,000 kg/yr level
(1.0E+04). The modeling for the groundwater pathway yielded
loading limits less than 10,000 kg/yr for 12 out of the 35 constituents
of concern for the unlined landfill scenario. Modeling of compacted
clay lined landfills yielded eight loading limits less than 10,000 kg/
yr; while modeling the range of composite liners which we call the
``SL'' scenario yielded only one such loading limit. (See the Risk
Assessment Background Document for the full modeling results).
---------------------------------------------------------------------------

\32\ See the Economic Analysis Background Document for a full
description of our estimation of waste quantities.
\33\ See the summary of analytical data in the Listing
Background Document. Exceptions include high organic wastes, such as
still bottoms, however these are relatively rare and are reportedly
treated by combustion (i.e., are not sent to a landfill). See, for
example, Attachment C to the comments from BASF on the 1994
proposal, available in the docket for today's rule.
---------------------------------------------------------------------------

In contrast, the results for the air pathway for all landfill
scenarios did not show any levels of concern, i.e., the loading limits
were all above 10,000 kg/yr. Details for this analysis can be found in
the Risk Assessment Background Document.

Table III-2.--Mass Loading Limits for Possible Constituents of Concern in Landfills: Groundwater Pathway
----------------------------------------------------------------------------------------------------------------
Mass loading (kg/yr)
Chemical CAS No. -----------------------------------------------
NL CL SL
----------------------------------------------------------------------------------------------------------------
Toluene-2,4-diamine............................. 95-80-7 0.34 0.99 140
2,4-Dimethylaniline (2,4-xylidine).............. 95-68-1 21 100 1.0
E+04
4-Chloroaniline................................. 106-47-8 630 4,800 1.0
E+04
o-Anisidine..................................... 90-04-0 30 110 1.0
E+04
Benzidine....................................... 92-87-5 120 1.0 1.0
E+04 E+04
p-Cresidine..................................... 120-71-8 120 660 1.0
E+04
1,2-Phenylenediamine............................ 95-54-5 160 710 1.0
E+04
1,3-Phenylenediamine............................ 108-45-2 300 1,200 1.0
E+04
Lead............................................ 7439-92-1 1,300 4,900 1.0
E+04
Aniline......................................... 62-53-3 1,900 9,300 1.0
E+04
N,N-Dimethylaniline............................. 121-69-7 2,500 1.0 1.0
E+04 E+04
1,4-Phenylenediamine............................ 106-50-3 6,500 1.0 1.0
E+04 E+04
----------------------------------------------------------------------------------------------------------------
NL = limits for unlined landfill scenario.
CL = limits for clay-lined landfill scenario.
SL = limits for composite liner landfill scenario.

In addition to the results shown in Table III-2, we also conducted
a screening analysis for sodium nitrite; the resulting loading limits
were calculated to be 493 kg/yr, 740 kg/yr, and 19,720 kg/yr for the
unlined, clay-lined, and composite-lined (SL) landfill scenarios.\34\
Nitrite exists in the environment in a complex equilibrium with other
forms of nitrogen, including less toxic nitrate, ammonia, and nitrogen
gas. Equilibrium is affected by a variety of factors, and nitrite
levels would be driven by the complex nitrogen cycle and the landfill
and subsurface conditions. While we know nitrite is converted to
nitrate and nitrogen under various conditions, our models were not able
to quantify these processes. Also, we assumed that nitrite migrates
with no significant adsorption (Kd=0). Therefore, we view
the modeling results for sodium nitrite as a conservative screening
analysis, because we used a variety of simplifying assumptions.
---------------------------------------------------------------------------

\34\ Note that the Risk Background Document presents the loading
limits for sodium nitrite in terms of ``nitrogen,'' rather than the
complete sodium nitrite molecule (NaO2). This occurs
because the toxicity benchmark for sodium nitrite is given in terms
of ``nitrogen.'' The TRI data are given for total mass of sodium
nitrite. Therefore, for comparison to the TRI data, the loading
limits are converted to the molecular formula for sodium nitrite;
this requires multiplying the loadings given in terms of
``nitrogen'' by a factor of 4.93.
---------------------------------------------------------------------------

Only two facilities reported any TRI releases of sodium nitrite
through offsite disposal (which we assume are releases of
nonwastewaters), with the larger release being 363 kg (the other was 2
kg). This larger release is still below the very conservative loadings
from our screening analyses for the three landfill scenarios.
Furthermore, given the solubility of sodium nitrite, it seems unlikely
that it could be present in any wastewater treatment sludges in
significant amounts, but would preferentially partition to the
wastewater. This is supported by the TRI data, which show that nearly
all of

[[Page 66187]]

the sodium nitrite released by dyes and/or pigments facilities was in
wastewaters sent to POTWs or discharged under NPDES permits to surface
water. Because our screening assessment is likely to be very
conservative, and because it is unlikely that any nonwastewaters from
dyes and/or pigments production contain sodium nitrite at levels
exceeding the screening analysis results, we believe that it is not
necessary to set a nonwastewater loading limit for this chemical.
g. What Are the Risk Assessment Results for Wastewaters?
We developed mass loading limits for wastewaters managed in tanks
and in surface impoundments. For surface impoundments, we calculated
risk-based mass loading limits for both the air and groundwater
pathways. For tanks, because of their relative impermeability, we
calculated limits based only on the air pathway.
We assumed that allowable loadings in excess of 100,000 kg/yr were
implausible. In developing this assumption, we used this plausibility
threshold to calculate a theoretical wastewater concentration. At
100,000 kg/yr, we estimate that typical wastewater constituents
concentrations would be 163 ppm.\35\ To test the validity of this
assumption, we looked at the available analytical data for wastewaters,
as summarized in the masked and aggregated results presented in the
Listing Background Document. We found only one constituent of concern--
aniline--with wastewater concentrations above 163 ppm.\36\ Thus, the
sampling data generally support our assumption that constituents of
concern will not be found in wastewaters in amounts exceeding 100,000
kg/yr.
---------------------------------------------------------------------------

\35\ Assuming an average wastewater quantity of 615,000 metric
tons/yr, see ``Economic Assessment for the Proposed Loadings-Based
Listing of Non-Wastewaters From the Production of Selected Organic
Dyes, Pigments, and Food, Drug, and Cosmetic Colorants'' in the
docket for today's proposal.
\36\ A second chemical, acetone, also exceeded 163 ppm in some
samples. Acetone, however, is not a constituent of concern in this
rulemaking because it is typically used as a solvent (rather than an
intermediate) and as such is already subject to regulation as a
hazardous waste under F003.
---------------------------------------------------------------------------

As discussed in sections III.D, III.E, and IV.C, we believe that
the mostplausible impoundment scenario for these industries is
management of wastewaters in synthetic-lined impoundments. For the
groundwater ingestion pathway of the synthetic-lined impoundment
scenario, none of the modeled wastewater constituent loadings are less
than 100,000 kg/yr. As a result, we conclude that our assessment of the
synthetic-lined surface impoundment scenario did not identify any
constituents that present a concern for the groundwater ingestion
pathway. For specific results, see the Risk Assessment Background
Document.
For both tanks and/or surface impoundments, the loading limits for
the air pathway for 10 of the 17 constituents modeled were below
100,000 kg/yr. These constituents are shown in Table III-3. The air
pathway results did not vary significantly for surface impoundments
under the various liner scenarios. We show the results for the
synthetic-lined impoundments below. Our evaluation of these results are
presented in section IV.C. The Risk Assessment Background Document
presents additional results for the unlined and clay-line surface
impoundment scenarios.

Table III-3. Mass Loading Limits for Possible Constituents of Concern in Tanks and Surface Impoundments Due to
Air Emissions \1\
----------------------------------------------------------------------------------------------------------------
Mass loading (kg/yr)
-------------------------------
Chemical CAS No. Surface
Tank impoundment
----------------------------------------------------------------------------------------------------------------
Aniline......................................................... 62-53-3 2,700 1,500
Naphthalene..................................................... 91-20-3 2,200 2,200
Azobenzene...................................................... 103-33-3 3,700 2,400
o-Toluidine..................................................... 95-53-4 2,600 2,400
o-Anisidine..................................................... 90-04-0 9,500 2,900
p-Cresidine..................................................... 120-71-8 50,000 13,000
Formaldehyde.................................................... 50-00-0 1.0 14,000
E+05
Toluene-2,4-diamine............................................. 95-80-7 1.0 51,000
E+05
1,2-Dichlorobenzene............................................. 95-50-1 71,000 63,000
Benzidine....................................................... 92-87-5 1.0 89,000
E+05
----------------------------------------------------------------------------------------------------------------
\1\ Levels represent the 90th percentile minimum loading limit derived from probabilistic analysis for the air
pathway for tanks and synthetic-lined surface impoundments.

We also conducted a screening analysis for sodium nitrite, which
resulted in loading limits of 19,277 kg/yr for the unlined impoundment
and 48,807 kg/yr for the clay-lined impoundment; the loading limit for
the synthetic-lined impoundment scenario was well above the 100,000 kg/
yr level. As discussed for the landfill scenario, nitrite exists in the
environment in equilibrium with other forms of nitrogen. As noted
previously, the modeling results for sodium nitrite represent a
conservative screening analysis that incorporated a variety of
simplifying assumptions. In this case, we also believe that nitrite is
likely to be converted to nitrate in the aerobic environment of a
surface impoundment.\37\
---------------------------------------------------------------------------

\37\ Note that the toxicity benchmark for nitrate (Rfc) in IRIS
indicates that nitrate is 16-fold less toxic than nitrite.
---------------------------------------------------------------------------

The only TRI release of sodium nitrite to wastewater comparable to
these screening levels was one quantity of 20,586 kg/yr (released to a
POTW, not an impoundment). This release is barely above the very
conservative loading from our screening analysis for an unlined
impoundment (19,277 kg/yr), but well below the loading limit for the
clay-lined scenario (48,807 kg/yr). Furthermore, the loading limit for
the synthetic-lined impoundment (which is the most plausible management
practice) is well above the level of concern. Because our screening
assessment is likely to be very conservative, and because wastewaters
from dyes and/or pigments production are unlikely to contain sodium
nitrite at levels exceeding the screening analysis results, we believe
that it is not

[[Page 66188]]

necessary to set a wastewater loading limit for this chemical.
3. What Was EPA's Approach to Conducting the Ecological Risk
Assessment?
We conducted a screening analysis to estimate whether there might
be significant impacts from these constituents on ecological receptors.
This analysis was limited to evaluating the impact of contaminated
groundwater discharging into surface waters and potentially affecting
aquatic life and consumers of aquatic life. We did not assess potential
impacts from vapor emissions to air because we did not have inhalation
health benchmarks for ecological receptors.
The evaluation of potential impacts on surface waters consisted of
modeling the increase in constituent concentrations in surface waters
due to the discharge of groundwater contaminated by dyes and/or
pigments production wastes into those waters. We used EPA's Ambient
Water Quality Criteria (AWQC) to calculate allowable loadings of the
potential constituents of concern (Table III-1) for this pathway. For
all constituents, the allowable loadings calculated using the AWQC were
above the loadings derived using human health toxicity benchmarks. This
means that the loading limits calculated to protect human health are
also protective for aquatic life. Therefore, we did not find any
significant impact from these constituents in this ecological screening
analysis.
4. What Is the Uncertainty in the Risk Results?

Liner Infiltration Rates

The infiltration rates used in calculating releases from lined
landfills were significant sources of uncertainty in our modeling
results. In modeling releases from landfills with liners, we had to
rely on limited data for infiltration rates through various liner
systems. To account for the expected variability in infiltration rates,
we incorporated distributions of rates for composite liners with
synthetic components (our SL scenario). The data available were limited
both in terms of the number of lined units from which we collected
data, and also in terms of the length of time the liner systems were in
place. Most of the landfills from which infiltration data was obtained
had initial waste placement between 10 and 15 years ago (between 1987
and 1992). Liner systems may suffer increased releases from a variety
of causes, such as liner failure due to improper installation, faulty
materials, or long-term degradation of the liner system. These factors
would tend to increase infiltration rates.
Our concern about the representativeness of the length of time the
infiltration data represents is somewhat balanced by our assumption
that biodegradation occurs in MSWLFs. We accounted for biodegradation
for all organic constituents of concern. The half-lives we used for the
organic constituents are relatively short. We estimate that the mass
loading of these constituents would biodegrade over the landfill life
to low levels. The slowest degradation rate we evaluated is 9.6E-04 per
day, which corresponds to a half-life of 2 years. After 10 years of
degradation at this rate, 97 percent of the constituent mass would have
degraded (ignoring for this example the competing processes of leaching
and volatilization). Therefore, almost all of what is placed into the
landfill during the first 20 years of operation (as well as most of
what is landfilled during the last 10 years) would be degraded by the
time the landfill is closed. We think, therefore, that our data on
infiltration rates reasonably represents liner performance for this
limited period of time.
In addition, there are other factors that we did not account for in
our modeling that would tend to decrease releases of constituents of
concern from landfills with composite liners. Our modeling did not
account for the effect of a leachate collection system, which would
tend to decrease leachate release; this is a required element in the
design of a composite MSWLF liner (Sec. 248.40(b)). Nor did we
consider that a final cover would tend to decrease infiltration rates
after the unit is closed. The closure regulations for a MSWLF unit
(Sec. 258.60) include a requirement for a low permeability final
cover, but our data set did not include many closed units. Note that
these final covers are often constructed using geomembrane liners,
which are generally more impermeable to surface infiltration than
earthen or clay liners. While a cover may also degrade over time, post-
closure regulations (Sec. 258.61) require the owner to maintain the
integrity of the cover for 30 years (the post-closure period may be
extended, if deemed necessary). In addition, while not required under
the part 258 regulations, many landfill units are equipped with
additional liners, i.e., units may have a double composite liner
system. This is apparent from the units from which the infiltration
data were collected (the units had a secondary liner in place, thus
allowing the infiltration from the top liner to be measured). Also,
information submitted by an industry group in comments on the 1999
proposed listing for dyes and/or pigments wastes indicates that over
half of the landfills receiving the wastes in question reported having
some kind of double liner in place.\38\
---------------------------------------------------------------------------

\38\ See comments by Ecological and Toxicological Association of
Dyes and Organic Pigments Manufacturers, Attachment A, October 21,
1999, placed in the docket for today's proposal.
---------------------------------------------------------------------------

Other Sources of Uncertainty

This section discusses other major areas of risk assessment
uncertainty: scenario uncertainty, model uncertainty, and parameter
uncertainty.
Scenario uncertainty results from the assumptions we make regarding
how receptors become exposed to contaminants. This uncertainty occurs
because of the difficulty and general impracticality of making actual
studies of all activities involved in the management of a waste and the
human activities that occur around the waste management unit.
This risk assessment, like other recent listing risk assessments
(e.g., see the proposal for paint manufacturing wastes at 66 FR 10060;
February 13, 2001) does not consider the additive risk from exposure to
multiple constituents. Chemical mixtures can display both synergistic
and antagonist behavior with regard to risk. In general, however, the
overall risks of a mixture are very likely to be greater than that of
exposure to a single chemical. Therefore not adding exposures across
the chemicals is an area of uncertainty that leads to an underestimate
of total risk.
We did not calculate the additive effects from co-disposal of dyes
and/or pigments nonwastewaters since the available information from TRI
on the mass loading and co-management of particular constituents of
concern in dyes and/or pigments production wastes indicated that such
co-disposal by multiple generators in landfills was not a significant
occurrence.
Also, certain contaminants from these industries may also be
present in the environment as a result of both natural processes and
anthropogenic activities. Under these circumstances, receptors
potentially receive a ``background'' exposure that adds to the exposure
resulting from release of contaminants from the waste. For a national
analysis like this assessment, the inclusion of background
concentrations as part of the analysis is difficult because of the lack
of data on national background concentrations for each constituent and
the potential high variability of background concentrations.

[[Page 66189]]

Model uncertainty is associated with all models used in all phases
of a risk assessment, because models and their mathematical expressions
are simplifications of reality that are used to approximate real-world
conditions and processes, and their relationships. Models do not
include all parameters or equations necessary to express reality
because of the inherent complexity of the natural environment and the
lack of sufficient data to describe it. Even though the models used in
the risk analyses are used widely and have been accepted for numerous
applications, they each retain significant sources of uncertainty.
For example, in modeling the fate and transport of chemicals in
groundwater, we did not assess complex hydrogeology such as karst or
highly fractured aquifers. In general, fractured flow in groundwater
can channel the contaminant plume, thus allowing it to move faster and
more concentrated than in nonfractured flow environments. As a result,
our modeling may underestimate the concentrations in the groundwater.
Also, there is considerable uncertainty in predicting the movement
of contaminants over long periods of time. We assess the risk to
receptors for the groundwater pathway over a time period of 10,000
years. There are likely to be significant changes in environmental
conditions over time, yet the modeling methodology maintains constant
assumptions over this 10,000 year period.
Parameter uncertainty occurs when (1) there is a lack of data about
the parameters used in the equations, (2) the data that are available
are not representative of the particular instance being modeled, or (3)
parameter values cannot be measured precisely and/or accurately because
of limitations in measurement technology.
The age of several of the databases used in this analysis to
characterize the waste management units or the location of the
receptors leads to uncertainty in the analysis. These databases contain
information collected by the EPA in several surveys during the mid-to
late 1980's. While these databases represent the best available
information the Agency has, there may have been significant changes in
waste management units or residential locations over the last 15-20
years. The uncertainty associated with these data may lead to an over
or under estimate of risk.
For organic chemicals, single values for parameters such as
partitioning coefficients and biodegradation rates were obtained from
public literature sources, yet there is general agreement that these
types of values may be highly variable under different environmental
conditions. We recognize that biodegradation rates are dependent on a
variety of environmental conditions, thus where more than one rate was
found, we chose the lowest one. We selected anaerobic degradation rates
reported as the most appropriate for constituents within landfills.
Depending on the site specific conditions, the degradation rates may
underestimate or overestimate the amount of degradation that would
occur in a landfill. Note that we did not, however, attempt to account
for biodegradation in the subsurface, because we believe this
degradation is more variable and difficult to predict. For metals, EPA
used the MINTEQ model to estimate the variation in partitioning of
metals as a function of subsurface chemistry. However, this model is
still undergoing review, which indicates an additional source of
uncertainty.
Limited data were available on the physical and chemical
characteristics of dyes and/or pigments production waste. To address
this, assumptions on the waste characteristics are based on general
knowledge of dyes and pigments and other similar industrial wastes. In
this analysis, EPA assumes that the dyes and/or pigments production
wastes have the same general characteristics (e.g., fraction of organic
carbon, pH, particle size) as other wastes.
We typically use regional databases to obtain the parameter values
necessary to model contaminant fate and transport. Because the data
that we used are not specific to the facilities at which the actual
wastes are managed, the data represent our estimates of the generic
site conditions. For an analysis where waste management locations are
so variable, we believe this type of approach is reasonable and is the
best method to address the fate and transport of constituents.
Nevertheless, the use of these databases in lieu of site-specific data
may result in either overestimates or underestimates of risk.
Sources of uncertainty in toxicological benchmarks include one or
more of the following: extrapolation from laboratory animal data to
humans, variability of response within the human population,
extrapolation of responses at high experimental doses under controlled
conditions to low doses under highly variable environmental conditions,
and adequacy of the database (number of studies available, toxic
endpoints evaluated, exposure routes evaluated, sample sizes, length of
study, etc.). Toxicological benchmarks are designed to be conservative
(that potentially overestimates risk) because of the uncertainties and
challenges associated with condensing toxicity data into a single
quantitative expression. Uncertainty factors are applied to address
limitations of the available toxicological data and are necessary to
ensure that the RfD or RfC is protective of individuals in the general
population. The use of uncertainty factors is based on long-standing
scientific practice. Uncertainty factors, when combined, commonly range
from 10 to 1000 depending on the nature and quality of the underlying
data. The RfD/RfC methodology is expected to have an uncertainty
spanning perhaps an order of magnitude.
Toxicological effects in children are also an area of uncertainty.
Cancer slope factors and reference doses for children are based on
comparing childhood exposure, for which we have age-specific data, with
adult toxicity measures, where adequate age-specific dose-response data
is lacking. This mismatch results in a large amount of uncertainty in
the estimation of hazard quotients for children and the concern that we
may be underestimating the potential impacts on children.
5. How Did EPA Use Damage Case Information?
We considered whether any damage cases exist that indicate impacts
on human health or the environment from improper management of the
wastes of concern, as required under the listing regulations (Sec.
261.11(a)(3)(ix)). Damage incidents might also provide some information
on the potential of the waste constituents to migrate, persist, or
degrade in the environment. We compiled damage incidents involving dyes
and/or pigments production wastes for a previous proposal,\39\ and we
updated this report for today's proposal.\40\ We found and reported
eleven incidents in the August 1994 damage case report that appeared to
involve some kind of contamination from the mismanagement of dye and/or
pigment production wastes. Our updated analysis did not produce any
other cases with useful information.
---------------------------------------------------------------------------

\39\ See the report prepared for the 1994 proposed rule,
``Resource Damage Incidents for Dye and Pigment Industry,'' August
1994, in the docket for today's rule.
\40\ See the updated report, ``Damage Incident Analysis for the
for Identification and Listing of Wastes from the Production of
Organic Dyes and Pigments,'' July 2003, in the docket for today's
rule.
---------------------------------------------------------------------------

The available information on potential problems related to apparent
mismanagement of dye and/or pigment wastes at manufacturing sites. The

[[Page 66190]]

information of most potential utility came from the Comprehensive
Environmental Response Compensation and Liability Information System
(CERCLIS), which contains information on potential and actual Superfund
sites, and EPA Region or State files. We found further information on
the Superfund Record of Decision System (RODS), which documents
remediation actions at sites on the National Priority List (NPL).
We examined eleven cases closely, because these sites appear to
involve sites where dyes and/or pigments production occurred. However,
comments from a number of companies and trade associations on the 1994
proposal argued that most of these cases did not support the proposed
listings in the 1994 rule. Commenters argued that the damage cases did
not reflect current management practices, nor did the cases confirm
risks were posed by the wastes proposed for listing. Upon further
review, we agree that the damage cases have limited utility for
determining current plausible mismanagement scenarios. The majority of
damage cases (especially Superfund sites) were from sites that operated
prior to implementation of the current RCRA regulations for hazardous
wastes (e.g., characteristically hazardous waste) or nonhazardous
wastes (e.g., current regulations for municipal landfills in part 258),
and generally reflect management practices that no longer occur (such
as disposal of untreated waste in unlined surface impoundments and
indiscriminate disposal of wastes on the ground). Also, most of the
facilities with damage cases have closed or ceased production of the
in-scope dyes and pigments. Therefore, we believe these past damage
incidents do not represent current waste management practices used by
the dyes and/or pigments production industry.
In most cases, the available damage incident data do not attribute
contamination to the specific dyes and/or pigments production wastes at
issue in today's proposed rule. Contamination may be caused by other
unrelated processes or activities onsite. Even where historical
problems can be traced to dye or pigment materials, they are not very
useful in assessing the potential risks for dyes and/or pigments
production as they are currently generated or managed. The damage cases
provide some anecdotal information to suggest that some dyes and/or
pigments production wastes may yield environmental contamination when
managed in the ways that lead to the damage cases. Some damage
incidents also provide information indicating the potential for the
migration, mobility, and persistence of constituents in dyes and/or
pigments production wastes. For example, the information on the
chemicals contaminating the groundwater or other media at the damage
sites show contamination from some of the constituents of concern in
today's rule (aniline, 4-chloroaniline, 1,2-dichlorobenzene). This
provides some support that these constituents may migrate to the
groundwater and may present risks if the contaminated groundwater is
consumed. However, this information does not assist in determining the
mass loadings at which dyes and/or pigments production wastes could
pose a hazard.
In general, because the wastes in the damage cases may include
wastes not in the scope of today's rule, and because the cases reflect
management scenarios that we do not believe are currently common or
plausible, it is difficult to use them to reach conclusions as to
whether the wastes under evaluation in today's proposal may pose
significant risks. Certainly, it is inappropriate to use damage cases
to ascertain at what mass loadings the dyes and/or pigments production
wastes under evaluation may pose such risks. Thus, while the damage
cases support the concept that some dyes and/or pigments production
wastes may sometimes pose risks, EPA is relying upon its quantitative
risk assessment in formulating today's proposal.

IV. Proposed Listing Determinations

A. What Are the Proposed Regulations for Dyes and/or Pigments
Production Nonwastewaters?

We are proposing to list nonwastewaters from the production of dyes
and/or pigments. Such wastes would become a listed hazardous waste if
they are generated during the production of any of the specified
classes of dyes and/or pigments products and if, at the point of
generation, they contain any of the K181 constituents of concern at a
mass loading equal to or greater than the annual mass loading limit
identified for that constituent. All wastes generated during a calendar
year up to the mass loading limits are outside the scope of the
listing, even if the wastes subsequently meet or exceed the limits.
Such wastes would be excluded from the listing from their point of
generation, and would not be subject to any RCRA Subtitle C management
requirements for generation, storage, transport, treatment, or disposal
(including the land disposal restrictions).
We are also proposing a conditional exemption for nonwastewaters
listed in K181 with specific constituent loadings below a higher limit
at the point of generation, so long as the wastes are disposed of in a
Subtitle D or Subtitle C landfill cell subject to specified design
standards. We are proposing the following listing description for these
wastes:

K181: Nonwastewaters from the production of dyes and/or pigments
(including nonwastewaters commingled at the point of generation with
nonwastewaters from other processes) that, at the point of
generation, contain mass loadings of any of the constituents
identified in paragraph (c)(1) of this section that are equal to or
greater than the corresponding paragraph (c)(1) levels, as
determined on a calendar year basis. These wastes would not be
hazardous if: (i) The nonwastewaters do not contain annual mass
loadings of the constituent identified in paragraph (c)(2) of this
section at or above the corresponding paragraph (c)(2) level; and
(ii) the nonwastewaters are disposed in a Subtitle D landfill cell
subject to the design criteria in Sec. 258.40 or in a Subtitle C
landfill cell subject to either Sec. 264.301 or Sec. 265.301. For
the purposes of this listing, dyes and/or pigments production is
defined in paragraph (b)(1) of this section. Paragraph (d) of this
section describes the process for demonstrating that a facility's
nonwastewaters are not K181. This listing does not apply to wastes
that are otherwise identified as hazardous under Sec. Sec. 261.21-
24 and 261.31-33 at the point of generation. Also, the listing does
not apply to wastes generated before any annual mass loading limit
is met.

We also specify the procedures and recordkeeping requirements that
generators would use to demonstrate whether or not they exceed the
loading limits and, if applicable, whether they meet the landfill
design requirements. These implementation provisions are discussed in
section V of today's proposal.
We are proposing that the constituents and the mass loadings in the
listing (which would be specified in paragraph (c)(1) of Sec. 261.32)
would be those shown in Table IV-1. For the conditional exemption, we
are proposing the constituent and mass loading limit shown in Table IV-
2 (to be set out in Sec. 261.32(c)(2)). These constituents and listing
levels are based on the risk modeling for nonwastewaters disposed of in
nonhazardous waste landfills summarized in section III.G.

[[Page 66191]]

Table IV-1.--Proposed Section 261.32(c)(1) Mass Loading Limits for K181
Nonwastewaters
------------------------------------------------------------------------
Chemical Mass levels
Constituent abstracts No. (kg/yr)
------------------------------------------------------------------------
Aniline................................. 62-53-3 9,300
o-Anisidine............................. 90-04-0 110
4-Chloroaniline......................... 106-47-8 4,800
p-Cresidine............................. 120-71-8 660
2,4-Dimethylaniline..................... 95-68-1 100
1,2-Phenylenediamine.................... 95-54-5 710
1,3-Phenylenediamine.................... 108-45-2 1,200
Toluene-2,4-diamine..................... 95-80-7 0.99
------------------------------------------------------------------------

Table IV-2.--Proposed Section 261.32(c)(2) Mass-Loading Limit for
Conditional Exemption to K181 for Nonwastewaters Disposed of in Landfill
Cells Subject to Design Requirements
------------------------------------------------------------------------
Chemical Mass levels
Constituent abstracts No. (kg/yr)
------------------------------------------------------------------------
Toluene-2,4-diamine..................... 95-80-7 140
------------------------------------------------------------------------

1. Landfill Scenarios Underlying Listing Loading Limits
Table III-2 sets out the loading limits we calculated for several
landfill liner scenarios representing decreasing infiltration rates: No
liner (NL), clay liner (CL), and a composite synthetic/clay liner (SL).
These results reflect a broad spectrum of potential Subtitle D
landfills that might receive nonwastewaters. However, we based the
listing levels on the two scenarios we believe are most applicable. We
are proposing to use the modeling results for a clay-lined landfill (CL
scenario) as the basic loading levels for dyes and/or pigments
production nonwastewaters in Table IV-1. As discussed in section 2
below, we are proposing to use the results for the composite liner
modeling (SL scenario) as the basis for a conditional exemption from
the listing to set the loading limit in Table IV-2 that would apply to
wastes that are managed in landfills that are equipped with a minimum
of a composite liner system.
We found that management in an offsite municipal solid waste
landfill was a plausible management practice for nonwastewaters (see
section III.F.2). The regulations governing municipal landfills require
a composite liner design (or a strict performance standard; see 40 CFR
258.40), but this requirement does not apply to existing units
(existing units are municipal landfill cells that accepted waste as of
the dates specified in Sec. 258.1(e), generally October 9, 1993). Most
key parts of the MSWLF regulations codified in 40 CFR part 258 apply to
existing units. Some of these regulations (notably the groundwater
monitoring and corrective measures regulations at Sec. 258.50 through
Sec. 258.58) probably have encouraged facilities to close unlined
units because of the long-term liability of adverse groundwater
impact.\41\ We believe that it is likely that a landfill currently
receiving these industrial wastes would have at least a clay liner.\42\
In fact, an industry association presented detailed information in
comments on the 1999 proposed listing for dye and pigment wastes that
showed that landfills receiving these wastes are reported to have
liners.\43\ Therefore, we are proposing that the mass loading limits
from the clay-lined results shown in Table IV-1 define the hazardous
mass loadings for these dye and/or pigment wastes (in Sec.
261.32(c)(1)). Nevertheless, because there may be unlined MSWLFs that
might be used for these wastes, we are soliciting comment on whether
the listing (and levels in Sec. 261.32(c)(1)) should be conditioned on
the wastes being placed in a landfill with a minimum of a clay liner.
We may consider this option, for example, if we receive data that shows
dye and pigment wastes are being disposed of in unlined landfills.
---------------------------------------------------------------------------

\41\ See ``Waste Age,'' Volume 30, p. 64; July 1999. Also, the
number of MSWLFs operating has decreased from 7,683 in 1986 to 3,581
in 1995 and to about 2,300 in 2000; See EPA's updated lists of
MSWLFs (EPA530-R-96-006) and at http://www.epa.gov/epaoswer/non-hw/muncpl/longdesc/
4-8longdesc.htm.
\42\ While our data indicate that dyes and/or pigments
manufacturers do not appear to currently use nonmunicipal (i.e.,
``industrial'') Subtitle D landfills, we believe that this type of
landfill is also likely to be lined. Commercial offsite landfills
are subject to considerable regulations by States, including liner
requirements. See the report by ASTSWMO, ``Non-Municipal, Subtitle D
Waste Survey,'' March 1996 and EPA's report ``List of Industrial
Waste Landfills and Construction and Demolition Waste Landfills,''
September 30, 1994 (PB\1\95-208914, 530-R-95-019), http://www.epa.gov/epaoswer/hazwaste/sqg/list/lfillpdf.pdf
.
\43\ See comments by Ecological and Toxicological Association of
Dyes and Organic Pigments Manufacturers, Attachment A, October 21,
1999, placed in the docket for today's proposal.
---------------------------------------------------------------------------

2. Conditional Exemption for Certain Landfilled Wastes
We are also proposing that wastes that otherwise meet the K181
listing description could be managed as nonhazardous so long as both of
the following conditions are met: (1) The nonwastewaters do not contain
an annual mass loading of toluene-2,4-diamine that is equal to or
greater than 140 kg/yr, and (2) the nonwastewaters are disposed in a
Subtitle D landfill cell subject to the design criteria in Sec. 258.40
or in a Subtitle C landfill cell subject to the design criteria in
Sec. 264.301 or Sec. 265.301. We are proposing this exemption because
our modeling indicates that management in landfills that comply with or
exceed these design standards should not pose a risk to human health
and the environment (so long as the waste does not exceed the Sec.
261.32(c)(2) listing levels for toluene-2,4-diamine).
As previously discussed in IV.A.1, the Sec. 261.32(c)(1) listing
levels reflect our risk assessment modeling results for a clay-lined
landfill. Wastes with mass loadings above the Sec. 261.32(c)(1)
listing levels pose risk to human health when placed in a landfill that
is only lined with clay because of the modeled mobility of the K181
constituents through a clay liner into the subsurface and subsequent
movement through an aquifer used for domestic consumption. Many
landfills, however, have been designed with more protective liner
systems than a simple clay liner. The Sec. 258.40 landfill liner
requirements provide significantly more protection against contaminant
migration into

[[Page 66192]]

groundwater. We believe that the SL modeling results closely match the
Sec. 258.40 requirement, because the infiltration data used for the SL
scenario were derived from municipal landfills with composite liners
(i.e., a combination of a geomembrane liner and a clay liner of some
sort). This modeling, reflected in the Sec. 261.32(c)(2) listing
levels, demonstrates that the majority of the constituents that warrant
establishment of listing levels based on a clay-lined landfill scenario
(i.e., the Sec. 261.32(c)(1) levels) are effectively controlled in a
landfill with a composite clay and synthetic liner similar to the liner
required under Sec. 258.40. Our modeling of the composite liner
scenario indicates that only one constituent, toluene-2,4-diamine,
poses risk that warrants further control due to possible infiltration
through a composite liner system.
Based on our risk assessment results that indicate that the
majority of the assessed constituents can be safely managed in Sec.
258.40 compliant landfills, we have proposed to exempt those wastes
that would otherwise meet the K181 standards when those wastes are
managed in landfills subject to the Sec. 258.40 standards, so long as
the wastes do not contain mass loadings in excess of the Sec.
261.32(c)(2) standard of 140 kg/yr we are proposing for toluene-2,4-
diamine.
Hazardous waste regulations require double composite liners that
are even more protective than part 258 composite liners. Some
generators of dyes and/or pigments nonwastewaters may choose to dispose
of their wastes in hazardous waste landfills. Wastes which contain mass
loadings below the Sec. 261.32(c)(2) standard would not pose threats
if placed in landfill cells subject to the hazardous waste landfill
requirements. Accordingly, we are also proposing to exempt wastes that
would otherwise meet the K181 listing if they do not exceed the Sec.
261.32(c)(2) mass level and if they are placed in landfill cells
subject to 40 CFR 264.301 or Sec. 265.301. We request comment on this
exemption.
3. Selecting K181 Constituents and Mass Loading Limits
As described in section III, we developed risk-based mass loading
limits for the set of constituents shown in Table III-1. In general, we
relied on the modeling results to guide us in deciding which
constituents would be appropriate in defining these dyes and/or
pigments production nonwastewaters as listed hazardous wastes. We
dropped constituents from further concern if the calculated allowable
mass loadings exceeded 10,000 kg/yr, because these constituents are
unlikely to occur in these wastes above this level. That is, mass
loadings of this magnitude are so high in comparison with expected
waste generation rates, that the resultant theoretical concentrations
are well in excess of the concentrations we expect to be present in
these wastes and thus can be considered implausible. Thus, using this
concept of a theoretical waste concentration to screen the constituents
listed in Table III-1, we narrowed the list of constituents by
eliminating those with calculated allowable mass loadings above 10,000
kg/yr.
Table IV-3 summarizes various information sources we have
identified that link these chemicals to the production of dyes or
pigments of concern. We believe this information supports our proposal
to propose listing levels for these constituents in K181. Additional
details are presented in the Listing Background Document and in
``Background Document: Development of Constituents of Concern for Dyes
and Pigments Listing Determination,'' both of which are available in
the docket for today's proposal. We solicit comment on the proposed
list of constituents and their levels in Tables IV-1 and IV-2. We seek
comment and supporting information as to whether any constituents
should be added to or dropped from the list of constituents of concern
for dyes and/or pigments nonwastewaters and the basis for such action.
More specifically, we seek any information that may assist us in
deciding whether any of the constituents in Table IV-1 are unlikely to
be present at the levels of concern, and thus whether we should drop
them from the listing.

Table IV-3.--Overview of Data Sources Linking K181 Constituents to Dyes and/or Pigments Production
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 3007 Manufacturer
Constituent CAS No. Analytical data Colour index TRI EU Ban survey web sites
--------------------------------------------------------------------------------------------------------------------------------------------------------
Aniline........................... 62-53-3 X X X ............... X X
o-Anisidine....................... 90-04-0 X X X X ............... X
4-Chloroaniline................... 106-47-8 X ............... X X ............... ...............
p-Cresidine....................... 120-71-8 ............... X X X ............... X
2,4-Dimethylaniline............... 95-68-1 X ............... ............... ............... X X
1,2-Phenylenediamine.............. 95-54-5 X X X ............... ............... X
1,3-Phenylenediamine.............. 108-45-2 ............... X X ............... X X
Toluene-2,4-diamine............... 95-80-7 ............... X X X ............... X
--------------------------------------------------------------------------------------------------------------------------------------------------------

We also specifically seek comment on the constituent in Table IV-2
that is at issue for wastes disposed of in a landfill subject to Sec.
258.40, Sec. 264.301 or Sec. 265.301 design requirements. TRI
releases for toluene-2,4-diamine were reported by two dyes and/or
pigments production facilities. One facility reported an annual release
of less than 500 lbs., or 227 kg (i.e., as reported in a Form A for the
TRI). The second facility reported the transfer of 396 kg of mixed
toluenediamine isomers to a broker for disposal; we could not determine
whether this waste was treated prior to disposal. The TRI data
therefore indicates that one or two facilities may be disposing of
toluene-2,4-diamine in the modeled management practice at levels on the
same order of magnitude as the proposed listing levels. In addition to
the TRI data, the Colour Index and two facilities' Web site indicate
that four companies manufacture products that may be derived from
toluene-2,4-diamine. Note that we do not have any analytical data for
this constituent in dye and pigment wastes, because we did not analyze
wastes for this chemical. After evaluating all available information,
including information on the potential presence of toluene-2,4-diamine
at the proposed levels in nonwastewaters and the current use of this
constituent in dyes and/or pigments production, we will determine
whether toluene-2,4-diamine should be included in Sec. 261.32(c)(2).
4. Assessment of Biodegradation
As described in section III.G.2.d.i, we accounted for the
biodegradation of the constituents of concern in our landfill modeling.
In modeling biodegradation, we used anaerobic degradation rates

[[Page 66193]]

that were available in the primary reference; \44\ when rates were not
available for seven chemicals of concern, we used conservative
surrogates derived from the same reference. The loading limits for
nonwastewaters in Tables IV-1 and IV-2 were derived using this
approach. We also completed modeling for these seven constituents using
a default degradation rate of zero.
---------------------------------------------------------------------------

\44\ Howard, P.H., R.S. Boethling, W.F. Jarvis, W.M. Meylan,
E.M. Michalenko, and H.T. Printup (ed.). 1991. Handbook of
Environmental Degradation Rates. Lewis Publishers.
---------------------------------------------------------------------------

Table IV-4 presents the mass loading limits for nonwastewaters that
would result from using zero degradation rates for the seven
constituents. Under this approach, three additional constituents would
be added to the Sec. 261.32(c)(1) list (benzaldehyde, azobenzene, and
p-toluidine) and five additional constituents would be added to the
Sec. 261.32(c)(2) list (2,4-dimethylaniline, 4-chloroaniline, 1,2-
phenylenediamine, aniline, and p-toluidine). We believe that using
appropriate surrogates is preferable to assigning a default value of
zero for the biodegradation rate. However, we request comment on
whether the risk assessment results derived from the default rate of
zero should be used as the basis for setting listing levels for some or
all of these constituents.

Table IV-4.--Alternate Mass Loading Limits Calculated Without Degradation
----------------------------------------------------------------------------------------------------------------
Sec. Sec.
Constituent Chemical 261.32(c)(1) Mass 261.32(c)(2) Mass
abstracts no. levels (kg/yr) levels (kg/yr)
----------------------------------------------------------------------------------------------------------------
2,4-Dimethylaniline.................................... 95-68-1 3.7 160
4-Chloroaniline........................................ 106-47-8 89 3,400
1,2-Phenylenediamine................................... 95-54-5 5.7 180
Benzaldehyde........................................... 100-52-7 1,500 (1)
Azobenzene............................................. 103-33-3 6,800 (1)
Aniline................................................ 62-53-3 110 4,300
p-Toluidine............................................ 106-49-0 11 400
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable: Calculated degradation rates exceed 10,000 kg/yr, no listing level proposed.

We specifically seek comment on the five constituents that would be
added to the conditional exclusion in Sec. 261.32(c)(2) if this
alternate approach of using zero biodegradation rates were adopted. We
recognize that some information we have in the record suggests that
mass loadings in these wastes may not reach the Table IV-4 levels for
some constituents.
For example, we have historical analytical data for dyes and/or
pigments nonwastewaters for 2,4-dimethylaniline, 4-chloroaniline, p-
toluidine, 1,2-phenylenediamine, and aniline (see the Listing
Background Document). 2,4-Dimethylaniline was detected only in
wastewater (two samples, maximum of 1.19 ppm). 4-Chloroaniline was
found in five waste samples, but at fairly low concentrations (maximum
of 13 ppm). p-Toluidine (also known as 4-methylaniline) was detected at
high levels in one sample of nonwastewater (presumably a still bottom
or spent solvent), and it was also possibly detected as a co-eluting
component of 2/3/4-aminotoluene (maximum of 10.4 ppm). 1,2-
Phenylenediamine (also know as 2-aminoaniline) was possibly detected at
a maximum of 7.17 ppm as a co-eluting component of 2,4-aminoaniline and
2-methoxyaniline. However, the analytical data for 1,2-phenylenediamine
is difficult to interpret because this chemical could not be separated
from the other closely related isomers by the method used, and also
because further evaluation of data from other wastes indicated that the
recovery of 1,2-phenylenediamine from some matrices is difficult (see
section IV.A.5 for a discussion on waste analysis problems). Aniline
was found in numerous waste samples, including wastewater sludges and
other nonwastewaters; some samples had high aniline concentrations.
Data from comments suggests that the higher concentrations may be
associated with special wastes (e.g., still bottoms), but this cannot
be confirmed from the available analytical data. In any case, aniline
appears to be fairly prevalent in dye and/or pigment wastes. For these
five constituents, the detected concentrations are generally below the
theoretical waste concentrations we calculated using an estimated
average waste quantity (e.g., the loading 160 kg/yr for 2,4-
dimethylaniline contained in the average estimated waste quantity of
1,894 kg/yr would give a theoretical concentration of 84 ppm).
Exceptions include one detection for p-toluidine and at least three
samples for aniline.
We also considered TRI data from known dyes and/or pigments
manufacturers reported for these constituents. The TRI data for 4-
chloroaniline show that total reported releases of 212 kg were far
below the Sec. 261.32(c)(2) mass loading limits. 2,4-Dimethylaniline
and p-toluidine are not on the TRI list of chemicals. The only TRI
release for 1,2-phenylenediamine was the filing of a form A by one
facility, indicating a release of less than 500 lbs., or 227 kg/yr.
Five facilities reported releases of aniline (two others also filed
form A); three of these reported total aniline releases that exceed the
Sec. 261.32(c)(2) mass loading limit.
In addition, some facilities appear to manufacture dyes and/or
pigments products that are derived from these constituents. For
example, company Web sites and the Colour Index link four facilities
with products derived from 2,4-dimethylaniline. Also, while we were not
able to find specific links between current dyes and/or pigments
production facilities for products derived from 4-chloroaniline, we
believe that this constituent's presence in multiple waste samples
suggests it may be in use, or perhaps occurs as a by-product. The
Colour Index and company websites also link several dyes and/pigments
production facilities with products derived from 1,2-phenylenediamine
and p-toluidine. Aniline is a common raw material for dyes and
pigments; this constituent is linked to at least eight companies. Thus,
if we decide to adopt this alternate approach to assessing degradation
rates for these constituents, we will evaluate information submitted by
commenters on the potential presence of these constituents at the
proposed levels in nonwastewaters and the current use of these
constituents in dyes and/or pigments production. After considering all
available information, we will determine whether we should set

[[Page 66194]]

exemption loading limits for these chemicals.
We also solicit comment on retaining benzaldehyde as a K181
constituent in the Sec. 261.32(c)(1) list, if we were to adopt this
alternate approach to assessing biodegradation. Benzaldehyde is a
naturally occurring chemical that is found in many foods, and is widely
used in flavors and fragrances; \45\ it is on FDA's list of generally
recognized as safe (GRAS) substances (21 CFR 172.515). While our
primary degradation reference did not report a degradation rate for
benzaldehyde, we are aware that benzaldehyde is fairly reactive and
will degrade to benzoic acid, which is 40-times less toxic (see IRIS
database). When we used a conservative surrogate degradation rate for
benzaldehyde, the modeling results showed this constituent would not
present a problem (i.e., the results were well above 10,000 kg/yr.). We
request information on the degradation rate for this chemical. We also
request information on the frequency of benzaldehyde use in dyes and/or
pigments production, as well as information on the likelihood that
nonwastewaters will contain loadings of benzaldehyde at or above our
proposed loading limits. If we adopt this alternate way of assessing
biodegradation, information indicating that benzaldehyde is rarely used
or unlikely to exceed the proposed loading limit may lead us to delete
this chemical from the listing.
---------------------------------------------------------------------------

\45\ See the ``Flavor And Fragrance High Production Volume
Consortia--The Aromatic Consortium Test Plan For Benzyl
Derivatives,'' December, 2001 submitted to EPA's High Production
Volume Challenge Program (http://www.epa.gov/chemrtk/benzylde/c13450tc.htm
).
---------------------------------------------------------------------------

5. Lead as a Potential K181 Constituent
We are proposing not to set K181 standards for the metal, lead,
despite modeling results for the clay-lined landfill scenario (4,900
kg/yr) that are below our screening threshold of 10,000 kg/yr. We do
not believe it is appropriate to set lead standards for K181 for a
number of reasons. First, we think it is unlikely that lead is used
extensively in current dyes and/or pigments production. While
historical information indicates that lead has been used in this
industry (e.g., as an oxidizing agent), we believe that environmental
regulations (such as the Toxicity Characteristic) and increased general
concerns about the use of lead in consumer products may have
contributed to declines in the use of lead in this industry. Our
analysis of the TRI data shows very limited reporting of lead releases
by the 35 dyes and/or pigments manufacturers that report to the TRI. In
fact, only two facilities report lead releases: Eastman Chemical
(Kingsport, TN) and Harshaw Chemical/Engelhard Corporation (Louisville,
KY). As previously discussed, Eastman is a very large chemical
manufacturer, with an extensive product list (over 1,200 plastics/
polymers, fibers and other chemicals). Dye production accounts for an
extremely small portion of their operations. We do not believe their
waste is representative of dye and/or pigment wastes in general, or
that it is likely that their reported lead releases are associated with
their very limited dye product line. Harshaw Chemical is a major
manufacturer of inorganic pigments, and currently generates a
significant quantity of characteristic lead wastes (D008) as well as
listed wastes from the production of inorganic pigments containing lead
(K002 and K003).\46\ Therefore, we believe that the lead releases
reported by Harshaw in the TRI are highly likely to be associated with
their inorganic pigment production (rather than their organic pigment
processes). The TRI data is consistent with this interpretation.
Harshaw reported in the 2000 TRI that all of the lead sent offsite for
disposal underwent stabilization/solidification; nearly all of this
(except for 45 kg ) was sent to a Subtitle C facility. No other dyes
and/or pigment manufacturers reported any releases of lead in 2000.
---------------------------------------------------------------------------

\46\ See 1999 data from the facility in EPA's Biennial Reporting
System (BRS) for hazardous waste.
---------------------------------------------------------------------------

Second, we evaluated the available analytical data for these wastes
for lead. Our analytical results showed two samples contained lead,
with a maximum concentration of 16.8 mg/kg. By assuming that this is a
typical concentration in these industries' wastes (despite the TRI data
that indicates that it is rarely reported in releases from these
industries), we calculated the necessary waste quantity that would need
to be generated in order to exceed the modeled threshold level of 4,900
kg/yr. The resultant calculated theoretical minimum waste quantity of
274,000 metric tons is significantly greater than the total quantity of
nonwastewaters that we estimate that all of the potentially impacted
facilities generate in total (47,000 metric tons). This analysis
indicates that, even if any other dye and/or pigment manufacturers do
generate lead-bearing wastes, they are unlikely to contain lead at mass
loading levels above the modeled threshold level.
Finally, we also note that lead is currently regulated as D008, a
characteristic hazardous waste when TCLP levels exceed 5.0 mg/L. The TC
levels serve as a safety net for lead-bearing wastes, if any, that
might be generated by facilities manufacturing the relevant dyes and
pigments. We are soliciting comments, however, on whether we should
include a threshold loading limit for lead in the K181 listing.
6. Waste Analysis Concerns
Some problems have surfaced in past chemical analysis of dyes and/
or pigments production wastes for some of the potential constituents of
concern in Table IV-1. In a few cases, our analysis could not
distinguish between co-eluting compounds when we used the typical EPA
methods (e.g., method 8270 in SW-846). However, significant
improvements have been made in instrument sensitivity and
chromatographic column performance in the approximately ten years since
EPA conducted its prior analyses. In general, we believe that following
methods in SW-846 should be adequate for the constituents in Table IV-
1: method 8270 (GC/MS), method 8315 (HPLC), and method 8321 (HPLC/MS or
HPLC/UV).\47\ Therefore, we believe that these constituents may now be
readily measured by the majority of laboratories equipped to perform
such analyses.\48\
---------------------------------------------------------------------------

\47\ See the discussion on page 3-25 and elsewhere in the
background document ``Best Demonstrated Available Technology (BDAT)
Background Document For Dye and Pigment Production Wastes'', which
is in the docket for today's rule.
\48\ See the Economic Analysis Background Document for our cost
estimates. See also http://www.speclab.com/price.htm.
---------------------------------------------------------------------------

The most problematic constituent appears to be 1,2-phenylenediamine
(also known as o-phenylenediamine). We originally promulgated numerical
treatment standards for 1,2-phenylenediamine in a prior rulemaking (64
FR 15583, April 8, 1996). However, we subsequently withdrew the
standard because of poor method performance (see 63 FR 47409, September
4, 1998). The methods used at the time did not provide adequate
recovery of the chemical from samples at the 5.6 mg/kg level. We
solicit comment on options to deal with this potential problem (short
of dropping the constituent, which is also an option) and other
analytical issues. For example, we could allow generators to use
knowledge of their waste in lieu of testing for these constituents
(regardless of waste quantities generated--see section V for differing
testing requirements for smaller and larger waste quantities).
Alternatively, we could allow the generator to show compliance with the

[[Page 66195]]

mass loading limits based on good-faith analytical efforts that
demonstrate that the constituent could not exceed the mass loading
limit by an order of magnitude (factor of ten), similar to the
allowance specified for meeting the land disposal treatment standards
for combustion residues (see Sec. 268.40(d)(3)).
7. Proposed Additions to Appendices VII and VIII of Part 261
As required under Sec. 261.30(b), we are proposing to add the
constituents that are the basis for the listings to Appendix VII of
Part 261. Thus, we are proposing to add the constituents that are
listed in Table IV-1 to Appendix VII as the basis for listing K181. In
addition, a number of constituents in Table IV-1 are not currently
listed in Appendix VIII to Part 261 as ``hazardous constituents.'' EPA
places constituents on Appendix VIII if scientific studies show the
chemicals have toxic, carcinogenic, mutagenic, or teratogenic effects
on humans or other life forms (see Sec. 261.11(a)(3)). The Risk
Assessment Background Document contains the detailed toxicological data
for all constituents we evaluated, including the chemicals we are
proposing to add to Appendix VIII: o-anisidine, p-cresidine, 2,4-
dimethylaniline, 1,2-phenylenediamine, and 1,3-phenylenediamine. We
recognize that Appendix VIII already contains the chemical name
``phenylenediamine'' with a CAS number of 25265-76-3. This Appendix
VIII listing represents a mixture of isomers (i.e., benzenediamines
with the presence of two amino-groups in unspecified locations on the
benzene ring). We are proposing to add the specific isomers (1,2-
phenylenediamine and 1,3-phenylenediamine) to clarify that these are
listed on Appendix VIII, even though we believe that the existing
listing for the mixed isomers would cover the specific isomers in
question. If in response to comments we decide to add any additional
constituents from Table III-2 to the loading limits in Sec.
261.32(c)(1) or (c)(2), then we would also add these constituents to
Appendix VII and VIII, if necessary. For example, under the alternative
approach in section IV.A.4 using zero degradation rates, we would also
add benzaldehyde, azobenzene and p-toluidine to Appendix VII of Part
261, and benzaldehyde and azobenzene would be additional constituents
added to appendix VIII of part 261.
8. Co-Generation With Out-of-Scope Wastes
A number of U.S. manufacturers of dyes and/or pigments produce
products other than those dyes and pigments classes described above in
II.F.1. For example, some manufacturers might also produce sulphur or
phthalocyanine dyes, dye intermediates, or other completely unrelated
products (e.g., surfactants). These facilities are likely to commingle
their wastewaters from most or all of their processes for treatment
prior to discharge. The resultant wastewater treatment sludges contain
constituents from all of the mingled wastewaters.
We are proposing that, to the extent that a facility commingles
wastewaters from the dye or pigment processes of interest in today's
rule with other ``out-of-scope'' wastewaters, the resultant sludge
would be entirely subject to the K181 listing if the commingled waste
contained sufficient mass loadings of the K181 constituents of concern
to trigger the K181 listing. This means, for example, that the entire
mass of toluene-2,4-diamine in a facility's wastewater treatment
sludge, would be compared to the K181 listing level for toluene-2,4-
diamine, irrespective of whether some of that mass originated in
processes other than the manufacture of azo, anthraquinone, perylene or
anthraquinone dyes or pigments. Note that other process wastes that are
commingled when generated (e.g., dusts and fines) would also be covered
by the K181 listing, if the commingled wastes contain some wastes that
are in the scope of the listing.
We believe it is appropriate to propose that the scope of the
listing cover mass contributions from other processes for several
reasons. First, the toxicity and risk associated with the constituents
of concern does not change as a function of the type of manufacturing
process that is the source of that constituent in a commingled waste.
For example, aniline in a facility's wastewater treatment sludge that
comes from the dye production process poses the same risk as an
equivalent amount of aniline in that same sludge as a result of
treating commingled aniline-bearing wastewaters from manufacturing
photographic chemicals. Second, while the ED consent decree serves as a
strong guide to the Agency in determining the scope of our listing
determination (by establishing priorities and timeframes for the
completion of specific listings), the consent decree in no way
prohibits the Agency from proposing listings with broader or different
scope. As an example, in the listing determination for inorganic
chemical manufacturing wastes, we listed K178 (solids from
manufacturing and manufacturing-site storage of ferric chloride from
acids formed during the production of titanium dioxide using the
chloride-ilmenite process); see November 20, 2001 (66 FR 58258). The
K178 listing addressed wastes not directly related to the wastes
specified in the consent decree (i.e., titanium dioxide production
wastes (except for chloride process waste solids)). Finally, we believe
that the proposed approach also is the most straightforward way of
structuring this type of mass-based listing. The regulatory
presentation in the CFR, as well as the implementation and enforcement
of the listing, are simpler under the proposed approach.
Facilities impacted by this portion of the listing description
(e.g., those whose wastewater treatment solids contain the K181
regulated constituents from non-dyes and/or pigments processes) would
have the option of segregating their wastewaters prior to commingling
with wastewaters from the dyes and/or pigments processes covered by
K181. Segregated solids that have no contribution of K181 constituents
from the dyes and/or pigments processes of concern would not be subject
to K181. We believe, however, that a more desirable environmental
outcome (and perhaps technically more feasible) would be achieved if
those facilities used the K181 listing levels as goals for their
pollution prevention programs, and if they adopted process
modifications designed to reduce overall loadings of the K181
constituents.
We request comments on this aspect of the proposed scope of the
K181 listing. We also request comment on an alternative approach which
would allow facilities to count only those mass loadings associated
with azo/triarylmethane/perylene/anthraquinone dyes and/or pigments
manufacture when assessing whether their wastes exceed the K181 listing
levels. For example, a facility may have specific chemical analytical
data for its wastewater prior to commingling that might be used to
demonstrate that the vast majority of a constituent of concern is not
derived from wastes that are in the scope of K181. Using such data, the
facility could demonstrate using a mass-loading calculation that the
mass of the constituent resulting from the in-scope process is well
below the mass loading limits specified in K181.

[[Page 66196]]

B. How Does K181 Impact Wastes That Are Not Landfilled, Combusted, or
Previously Listed?

1. What Is the Status of Wastes That Are Not Landfilled?
We are setting the Sec. 261.32(c)(1) listing levels as the
baseline levels that establish when nonwastewaters from the production
of dyes and/or pigments pose sufficient risk to warrant listing as
hazardous waste. Although these levels are derived from a landfill
management scenario, we are proposing, consistent with our past
practice, that these levels apply to all nonwastewaters within the
scope of the listing definition, irrespective of how the waste may be
managed. As a specific example of what this means, we are not setting
separate ``entry/exit'' levels for wastes that might be combusted. We
are assuming that wastes with constituent amounts below the listing
levels do not pose risks in a combustion scenario, so the landfill-
based listing limits provide sufficient protection. This is consistent
with our general approach to unconditional hazardous waste listings. If
we find that waste does not pose risks in a landfill or surface
impoundment scenario, we do not list the waste, although we have not
assessed the risks posed by combustion.
This approach is also similar to the proposed concentration-based
listing determination for paint production wastes, where we also
proposed threshold levels that were not based on any modeling of
combustion practices. As we noted in that proposal, in past listing
determinations where we attempted to assess risks from combustion, we
found that the potential risks from the release of constituents through
combustion would be at least several orders of magnitude below
potential air risks from tanks or impoundments (see 63 FR 64371,
November 19, 1998). We also noted that it is difficult to assess what
goes into combustion units in relation to the residual constituents
that might persist in ash or be released to the air, such as products
of incomplete combustion.
Our assessment of the tank management scenario for wastewaters from
the production of dyes and/or pigments indicates that the lowest
allowable mass loadings associated with air releases from tanks for the
constituents of concern is in the range of 2,000-3,000 kg/yr. Based on
the analysis conducted in previous determinations (e.g., 63 FR 64371,
November 19, 1998), a comparable assessment of air releases from the
combustion scenario would establish allowable mass loading levels
several orders of magnitude higher, well in excess of the proposed
Sec. 261.32(c)(1) listing levels.
2. What Is the Status of Wastes Destined for Combustion That Trigger
the K181 Listing Levels?
We are proposing that nonwastewaters exceeding the listing loading
levels will be K181 listed wastes even if they are combusted. This is
consistent with our general approach to listing, in which we model land
disposal units and, if we find risks of concern, promulgate a listing
that includes wastes sent to combustion. We have taken this approach
because we anticipate difficulties developing modeling that could
adequately capture the various complex aspects of this combustion,
including destruction efficiency, formation of toxic products of
incomplete combustion, partitioning of uncombusted toxicants among air,
scrubber water and ash, and transport.\49\
---------------------------------------------------------------------------

\49\ While we attempted to model combustion of these wastes in
the 1994 proposed listing determination for dyes and pigment wastes,
commenters argued strenuously that our modeling was overly
conservative, and presented stack testing for aniline showing much
higher destruction efficiency for aniline than we had assumed, and
risk assessment results showing very low risk (see ``Comments on the
1994 Proposed Rule for Dye and Pigment Wastes,'' originally
submitted by BASF Corporation, December 15, 1995, in the docket for
today's proposal).
---------------------------------------------------------------------------

However, we are soliciting comment on the option of exempting K181
nonwastewaters sent to combustion facilities. Without risk assessment
results to rely on, we have qualitatively assessed the data we have
gathered regarding current combustion management practices for dyes
and/or pigments nonwastewaters. The TRI is our primary source of
information. It shows that ten facilities send nonwastewaters offsite
for thermal treatment and two facilities combust wastes onsite. All ten
of the offsite treatment facilities are RCRA TSDFs. However, we cannot
determine for certain whether the wastes of concern to this proposal
are in fact being combusted in Subtitle C combustors, or in co-located
Subtitle D combustors.
The two facilities that conduct onsite thermal treatment are
Eastman (Kingsport, TN) and BASF (Huntington, WV). Eastman apparently
operates both hazardous and nonhazardous waste combustion.\50\ BASF
operates a nonhazardous waste unit used to treat still bottoms and
related wastes from an aniline/triarylmethane process.\51\ While this
boiler is not permitted for managing hazardous wastes, it is covered by
a State permit that sets low release limits for aniline (40 kg/yr).\52\
As part of BASF's 1995 comments on our initial proposed listing
determination for these wastes, they submitted a risk assessment for
this unit demonstrating low risk potential.
---------------------------------------------------------------------------

\50\ See Listing Background Document.
\51\ See the docket for today's proposal for ``Comments on the
1994 Proposed Rule for Dye and Pigment Wastes,'' originally
submitted by BASF Corporation, December 15, 1995 (Attachment C), for
a more complete description of this unit.
\52\ See BASF's air permit in the docket for today's proposal.
---------------------------------------------------------------------------

The available information regarding current combustion indicates
that the majority, and perhaps all, of the wastes that are combusted
are managed either in Subtitle C units, or units with air permits that
specifically address key K181 constituents potentially present in those
wastes. We solicit comments on whether this is sufficient information
to support an exemption from K181 for wastes that are managed in
combustion units that are permitted under Subtitle C, or that have
other relevant CAA permits.
3. Applicability to Wastes That Are Already Hazardous
We are also proposing that wastes that are subject to another
hazardous waste listing under Sec. 261.31-33 or a hazardous waste
characteristic under Sec. 261.21-24 would not be subject to listing
under K181. Generators would not count the mass of any constituent of
concern in these wastes toward the loading limits in the K181 listing.
This avoids complications that would arise in implementing the
loadings-based listing. For example, consider an azo dye producer who
generates a sludge meeting the F004 listing due to solvent use during
production. This F004 sludge could also be captured by the narrative
description in the K181 listing, as it would be a nonwastewater from
the production of azo dyes. If the facility also generates another
separate wastewater treatment sludge from the production of azo dyes,
the facility would need to assess the total mass of a constituent of
concern for all wastes potentially subject to the K181 listing. Thus,
the facility would have to add the mass of any constituents of concern
in the F004 waste to the mass of the constituents present in the
treatment sludge. It is possible that the additional mass from the F004
waste would cause the total mass of some constituent in the treatment
sludge to meet or exceed the listing levels in Sec. 261.32(c)(1) or
(c)(2). However, the F004 waste is already hazardous and subject to
full Subtitle C control. Regulating the treatment sludge based on the
additional mass in the

[[Page 66197]]

listed waste appears inappropriate, given that the F004 waste could not
be disposed with the treatment sludge as non hazardous waste.
Therefore, we are proposing that wastes that are already classified as
hazardous wastes would not be subject to listing as K181.
If the above example is modified, such that the F004 waste is
generated in commingled form with the wastewater treatment sludge
(e.g., from commingled wastewaters), then the waste would be F004,
regardless of the mass levels present in the K181 constituents of
concern. EPA has not evaluated all of the hazardous constituents
reasonably expected to be present in F004 wastes and set levels at
which it is safe to dispose of them in nonhazardous waste landfills
with or without composite liners. In this case, therefore, our proposed
approach would mean that the F004 wastes would remain hazardous, but
the waste would not be subject to the K181 listing.

C. Why Are We Proposing Not To List Wastewaters?

As described previously in section III.E.3, we evaluated the
potential management of wastewaters from dyes and/or pigments
production in two scenarios: Tanks and lined surface impoundments.
After consideration of the risk assessment modeling results, the
plausibility of each management scenario, and the level of
environmental protection provided by existing and upcoming air
regulations, we are proposing not to list wastewaters from dyes and/or
pigments production. Our logic supporting this determination is
presented below.
1. Air Emissions From Tanks and Surface Impoundments
We assessed air emissions from both tanks and surface impoundments,
as previously described, and calculated mass loadings for those CoCs
with inhalation toxicity benchmarks. Because the modeled mass loading
results for these scenarios were very similar, we are presenting a
combined analysis of these results here.
As discussed previously in section III.G.2.g, we assumed that
calculated allowable loadings in excess of 100,000 kg/yr were
implausible and therefore screened out those constituents for which our
modeling gave a calculated allowable loading in excess of 100,000 kg/
yr.
Ten constituents had calculated allowable loadings less than
100,000 kg/yr. Table IV-5 presents these CoCs, the modeled allowable
loading results for tanks and surface impoundments (synthetic lined),
theoretical concentrations (using the estimated average wastewater
quantity), a summary of available analytical data, and total onsite and
offsite releases reported in the TRI by the dyes and/or pigments
production industries.

Table IV-5.--Analysis of Air Pathway Loading Results
----------------------------------------------------------------------------------------------------------------
Theoretical
Calculated wastewater Available TRI: D&P industry
allowable loading concentration for analytical data total on- and
Constituent of concern for tanks/surface tanks/surface for wastewaters offsite releases
impoundments (kg/ impoundments (ppm) (kg/yr, RY2000)
yr) (ppm)
----------------------------------------------------------------------------------------------------------------
Naphthalene......................... 2,200/2,200 3.6/3.6 0.011-0.1 1,294
o-Toluidine......................... 2,600/2,400 4.2/3.9 0.044-0.16 234
Aniline............................. 2,700/1,500 4.4/2.4 0.66-120 237,100
Azobenzene.......................... 3,700/2,400 5.2/3.9 0.093-0.104 (\3\)
o-Anisidine......................... 9,500/2,900 15.5/4.7 0.76 0
p-Cresidine......................... 50,000/13,000 81.3/21.1 (\1\) 5,680
Formaldehyde........................ 100,00 160/ 0.064-0.819 10,962
0/14,000 22.8
Toluene-2,4-diamine................. 100,00 160/ (\2\) 817
0/51,000 82.9
1,2-Dichlorobenzene................. 71,000/63,000 115/102 0.004-0.059 31,490
Benzidene........................... 100,00 160/ 0.0055-0.023 0
0/89,000 145
----------------------------------------------------------------------------------------------------------------
\1\ Not reported
\2\ Not analyzed.
\3\ Not a TRI constituent.

With the exception of aniline (discussed further below), we believe
that it is highly unlikely that these constituents would be present at
levels above the calculated allowable mass loadings in any facility's
wastewaters. Our assessment of the TRI releases reported by the dyes/
pigments industries indicates that the total releases from the entire
industry are less than the calculated allowable mass loading limits
predicted by our risk assessment modeling that would be applied on a
facility-specific basis (except for aniline). For example, total
reported releases of naphthalene by dye and/or pigments manufacturers
were 1,294 kg/yr, which is less than the calculated allowable loading
level of 2,200 kg/yr. This comparison greatly overestimates potential
wastewater levels because total TRI releases include releases from all
facilities to air and land, as well as water.
The available analytical data support the TRI analysis, showing
that (with the exception of aniline), these constituents are unlikely
to be present in dyes and/or pigments wastewaters at concentrations
high enough to result in mass loadings above the calculated allowable
levels. The theoretical concentrations presented in the table above
assume an average wastewater quantity of 615,000 MT/yr. The majority of
the facilities in this industry are expected to generate lower
wastewater quantities (i.e., the median wastewater quantity is 119,000
MT/yr), and thus the theoretical concentration of these constituents in
these wastewaters at the calculated allowable levels would be even
higher, and thus more implausible.
Aniline, however, may in fact be present in dyes and/or pigments
industry wastewaters at levels exceeding the calculated allowable
loading of 2,700 kg/yr. Of the four dyes and/or pigments manufacturers
reporting aniline releases in the TRI, two report releases of aniline-
bearing wastewaters to POTWs in excess of 2,700 kg/yr, and are
presumably managing these wastewaters in tanks prior to discharge. One
of these two facilities (BASF/Huntington, WV) is operating under a
state air permit that limits the actual aniline air emissions from
wastewater treatment to levels well below the potential wastewater
loading limit for aniline (permit available in docket for today's
rulemaking). The

[[Page 66198]]

second facility (Sun Chemical/Muskegon, MI) treats its wastewaters via
powdered activated carbon and biological treatment prior to discharge
to a POTW.\53\ The treatment unit in use has been subject to State air
permits in the past. The facility recently obtained a wavier from
permitting requirements for the treatment unit based on analysis
showing that emissions (including aniline) are very low.\54\
---------------------------------------------------------------------------

\53\ Contact between Dr. Robert Kayser, OSW and John Fagiolo,
Remedial Project Manager, EPA, June 24, 2003.
\54\ Contact between Dr. Robert Kayser, OSW and Tracey McDonald,
Air Quality Division, Michigan Department of Environmental Quality,
June 24, 2003 in the docket for today's rule.
---------------------------------------------------------------------------

Existing federal air regulations that pertain to facilities
manufacturing dyes and pigments are summarized in section II.E. Aniline
is regulated as a ``hazardous air pollutant'' (HAP) under the Clean Air
Act. In general, the existing and upcoming regulations on air releases
will limit the actual releases of many organic chemicals from dyes and/
or pigments wastes. Based on our evaluation of the information
available, we believe that air releases of aniline at dyes and/or
pigments facilities are adequately controlled and such releases do not
present significant risks.
We note that we could not make a TRI comparison for azobenzene
because it is not a TRI constituent. Azobenzene is a degradation
product associated with certain specialized dye and/or pigment
production (e.g., aniline-based triarylmethane products), rather than
an actual intermediate. We do not believe that azobenzene would be
present in wastewaters above the mass loading limits, but expect it to
be present at low levels in very few wastes. The historical analytical
data support this conclusion.
As described previously in section III.G.2.d.i, we assessed the
biodegradation of certain constituents by assigning them rates from
structurally similar constituents. We also, as an alternative, assessed
these chemicals using a default degradation rate of zero. In the
wastewater analysis, the constituents affected were aniline and
azobenzene. The alternate calculated allowable loadings determined for
aniline were 2,000 kg/yr and 980 kg/yr for the tank and surface
impoundment scenarios, respectively. The alternate values for
azobenzene were 3,200 kg/yr and 1,700 kg/yr for the tank and surface
impoundment scenarios, respectively.
We solicit comments on our proposed decision not to list
wastewaters and set mass loading-based regulatory levels derived from
the air emission pathways from tanks and/or surface impoundments. We
also request comments on an alternative approach that would list
wastewaters from the production of dyes and/or pigments, establishing
loading limits in a manner similar to that being proposed today for
K181. We might adopt this alternative if, for example, we received data
and information that these wastewaters are more likely to exceed the
calculated mass loading limits than our current data indicates, or our
modeling was insufficiently conservative, or that existing air
regulations are not effectively controlling risks from aniline.
2. Groundwater Releases From Surface Impoundments
The dyes/pigments industries are known to operate a small number of
surface impoundments (see section III.E.3). As a result, we modeled the
management of wastewaters in unlined, clay-lined, and synthetic-lined
surface impoundments for the groundwater pathway. We believe that the
synthetic-lined impoundment is the most plausible management scenario
for these wastes. Our analysis (see section III.G.2.g) indicates that
releases to groundwater from impoundments with synthetic liners are
unlikely to pose risk because the calculated allowable mass loadings
all exceeded 100,000 kg/yr, an implausible loading in these
wastewaters. While clay-lined impoundments are in use at one dye
manufacturing site, we have not selected this scenario as plausible
because these impoundments are not used to manage untreated wastes (see
following discussion). We also determined that the unlined scenario for
surface impoundments is not plausible for these wastes (see section
III.D.2).
Our risk modeling of the clay-lined impoundment scenario indicates
that the potential listing loading levels are below 100,000 kg/yr for
31 of the 35 constituents of concern (see the Risk Assessment
Background Document for these results). We considered whether the one
facility known to be operating clay-lined impoundments (Lobeco, located
in Lobeco, SC) is likely to be managing wastewaters with constituents
at levels of concern.
Lobeco indicated that their wastewater treatment system consists of
neutralization, aeration with activated sludge, and holding ponds.\55\
Staff from South Carolina's Department of Health and Environmental
Control described four in-ground units at this site: An equalization
unit and a digestion unit, both concrete-lined (with secondary clay
liners), and two clay-lined holding basins. The holding basins receive
wastewater treated in the concrete lined units prior to discharge to
surface waters under an NPDES permit. 1999 TRI data for this facility
shows that they had low levels of two constituents of potential concern
in the influent to their wastewater treatment facility: Formaldehyde
(<1 part per billion or ppb) and naphthalene (1 ppb-1 ppm). The
facility reported that the only chemical reported to be discharged to
surface water was ammonia. Consequently, we conclude that the treatment
in the upstream units removed the naphthalene and formaldehyde before
wastewaters reached the clay-lined holding basins.
---------------------------------------------------------------------------

\55\ http://www.lobecoproducts.com/environment.html.
---------------------------------------------------------------------------

The facility's NPDES monitoring data shows that only one of the
constituents of concern for this listing for which the facility
conducted analysis was detected in their effluent; copper was found at
0.3-0.9 pounds/day (50-150 kg/yr), well below the copper calculated
allowable loading limit of 5,600 kg/yr for clay-lined impoundments.
Since we believe the water in the clay-lined holding basins closely
resembles the effluent, we do not believe that these particular
impoundments are likely to manage wastewaters that would contain
constituents of concern at levels above the calculated allowable mass
loading limits.
We request comment on our proposal not to list wastewaters from
dyes and/or pigments production and not to set loading levels derived
from the groundwater pathway for clay-lined surface impoundments. We
also request comments on an alternative approach that would list
wastewaters from the production of dyes and/or pigments that are
managed in clay-lined surface impoundments, establishing mass loading
limits in a manner similar to that being proposed today for K181. This
alternative approach would not list as hazardous those wastewaters that
are managed in synthetic-lined impoundments or in tanks. We would
consider this alternative further if we receive data and information
that, for example, would indicate that there are additional clay-lined
surface impoundments in use by the industry or our assessment of the
risks posed by wastewaters is insufficiently conservative.

D. Scope of the Listings and the Effect on Treatment Residuals

Today's proposal would result in a new hazardous waste listing that
differs from previously promulgated listed hazardous wastes in that it
includes

[[Page 66199]]

constituent-specific mass loading limits to define the scope of the
listing. The primary purpose of this ``mass loadings-based listing'' is
to establish levels at the point of generation of a waste, at or above
which that waste is considered to be a listed hazardous waste (i.e.,
``entrance'' levels). Wastes that are generated with constituent masses
below these levels (on an annual basis) would not be subject to these
listings.
Residuals from the treatment, storage, or disposal of listed
hazardous wastes are usually classified as hazardous wastes based on
the ``derived-from'' rule (see 40 CFR 261.3(c)(2)(i)).\56\ We are not
proposing to use the mass loading-based levels as ``exit'' levels for
residues from treatment of dyes and/or pigments production
nonwastewaters (K181). Thus, we are not proposing any exemption to the
mixture rule for the K181 wastes.
---------------------------------------------------------------------------

\56\ Also, the ``mixture'' rule (see 40 CFR 261.3(a)(2)(iii) and
(iv)) provides that, with certain limited exceptions, any mixture of
a listed hazardous waste and a solid waste is itself a RCRA
hazardous waste.
---------------------------------------------------------------------------

In the listing determination for paint manufacturing waste solids,
we proposed that the concentration-based listing levels would also
serve as ``exit'' levels. That is, we proposed that waste solids that
were treated to below the listing limits could exit the hazardous waste
system and would become nonhazardous waste (66 FR 10110). We considered
proposing to use the mass loading limits as exit levels for dye and
pigment wastes, but we decided not to do this for several reasons. Most
important, the mass-based loading is different from a concentration-
based listing, because the proposed mass-based approach already builds
in an exemption for wastes with constituent masses below the loading
limit. Thus, the proposed approach allows a facility to handle as
nonhazardous any wastes containing constituents of concern up to the
loading limit. In contrast, a concentration-based listing would require
all wastes that meet the listing level to be handled as hazardous.
In addition, an exemption for treatment residuals would be complex
to implement. For example, a facility could generate an initial portion
of waste up to the mass loading limit and handle that portion as
nonhazardous. With an exemption for treatment residuals, the facility
could then treat additional wastes and claim the residuals are below
the loading limits. However, given that the facility already generated
and disposed of wastes that contained the permissible mass loading
limits, it would be inappropriate to classify the treatment residuals
as nonhazardous.
Difficulties would also arise in any exemption for treatment
residuals, if such treatment were to occur offsite. The offsite
facility would have to demonstrate that the conditions set out in the
proposed regulations were met and document that the waste is
nonhazardous (i.e., according to the proposed listing regulations in
subparagraphs (c), (d) and (e)). An offsite treatment facility may not
have the knowledge to track the cumulative loadings from the generator
to ensure that the conditions for becoming nonhazardous are met.
Furthermore, the treatment facility would likely be accepting a variety
of hazardous wastes from numerous generators. Thus, even if this
facility was able to comply with the conditions for determining the
treated waste is not K181, the treatment residuals could still carry
other hazardous waste codes under the mixture rule (see 40 CFR
261.3(a)(2)(iv)), as well as the derived-from rule. Thus, any
implementation scheme for offsite treatment facilities appears
problematic.
Finally, the treatment of any waste that is classified as K181 at
the point of generation would have to comply with hazardous waste
regulations. For example, if the waste was incinerated, the combustion
unit would have to be permitted under Subtitle C. Therefore, the
benefits of possibly classifying the treatment residuals as
nonhazardous do not appear to be significant, compared to the cost of
constructing and permitting a hazardous waste treatment unit (which, if
we limited any exemption to onsite treatment, would have to be located
onsite).
We seek comment on the need for any exemption for treatment
residuals, and how such an exemption could be structured. If we were to
adopt such an exemption, we would add an exemption to the derived-from
rule (e.g., in Sec. 261.3(c)(2)(ii)), which would require the
generator to show that the treated waste no longer meets the listing
levels of K181 (using the determination process proposed in Sec.
261.32(d)), and that the residuals meet the requirements specified in
part 268. As described above, we believe that any exemption from the
derived-from rule would be most applicable to generators who treat
their waste onsite, because the generator would have the information
needed to track the cumulative mass of the various constituents in the
treated waste.

E. What Is the Status of Previously Disposed Wastes and Landfill
Leachate From Previously Disposed Wastes?

The Agency has been clear in the past that hazardous waste listings
normally apply to wastes disposed of prior to the effective date of a
listing, even if the landfill ceases disposal of the waste when the
waste becomes hazardous. (See 53 FR 31147, August 17, 1988.) We also
have a well-established interpretation that listings apply to leachate
derived from the disposal of listed hazardous wastes, including
leachate derived from wastes meeting the listing descriptions that were
disposed before the effective date of a listing. Leachate derived from
the treatment, storage, or disposal of listed hazardous wastes is
classified as a hazardous waste by virtue of the ``derived-from'' rule
in 40 CFR 261.3(c)(2). We are not reopening nor taking comment on any
of these issues with this proposed rulemaking.
As set out in detail in the August 1988 notice, this does not mean
that landfills simply holding wastes that are listed now as hazardous
become subject to Subtitle C regulation. However, previously disposed
wastes now meeting a listing description that are actively managed,\57\
including actively managed residues such as leachate that are derived
from such wastes, become subject to Subtitle C regulation. (See 53 FR
at 31149, August 17, 1988.) In most circumstances, active management of
leachate is exempt from Subtitle C regulation. Specifically, management
of leachate in wastewater treatment tanks prior to discharge under the
CWA is exempt from RCRA regulation (40 CFR 264.1(g)(6)). Discharge to a
POTW via the sewer system, where leachate mixes with domestic sewage,
is also excluded from RCRA jurisdiction (see RCRA section 1004(27) and
40 CFR 261.4(a)(1)). Similarly, discharge to navigable waters is
excluded from RCRA jurisdiction (see RCRA section 1004(27) and 40 CFR
261.4(a)(2)).
---------------------------------------------------------------------------

\57\ The Agency often uses the term ``active management'' as a
catch-all term to describe the types of activities that may trigger
RCRA Subtitle C permitting requirements. In general, those
activities are hazardous waste treatment, storage, and disposal, all
of which are defined in 40 CFR 260.10. It is important to note,
however, that EPA interprets the disposal that triggers RCRA
Subtitle C permitting requirements to be the types of disposal as
described in the definition of ``disposal facility'' in 40 CFR
260.10, and not the broader, more general definition of ``disposal''
in that section and in RCRA section 1004(3). See, e.g., 53 FR 31149
(August 17, 1988). Instead, the latter, broader definition is used
to determine the applicability of certain statutory provision, such
as RCRA section 7003, 7002(a)(1)(B), 3013, and 3007. See, e.g., 55
FR 8759 (March 8, 1990).

---------------------------------------------------------------------------

[[Page 66200]]

It is possible that nonwastewaters within the proposed scope of
K181 (and the relevant mass loading limits) may have been disposed in
landfills. However, the proposed listing for K181 waste is a mass
loading-based listing, and it would be difficult to know whether the
previously disposed wastes that meet the narrative description of K181
did, in fact, have constituent mass loadings that would be at or above
the K181 regulatory levels. We don't anticipate that records
documenting the mass of proposed constituents of concern in these
wastes exist for previously disposed wastes.
Typically, the status of the previously disposed waste is not an
issue, unless the waste is actively managed in some way. One way this
question might arise is if the derived-from leachate is actively
managed; we discuss this question below. This issue would arise more
directly, however, if the waste previously disposed were to be
excavated for further management, perhaps as part of a corrective
action or other remediation effort. In this case, we believe it would
be most practical to evaluate the managed waste as if it were newly
generated. That is, a facility engaged in excavation of wastes that are
potentially K181 would use the procedures in the proposed listing to
determine if the constituents of concern meet or exceed the relevant
mass loading limits. If the mass loadings are met or exceeded, then the
actively managed waste would be K181. As noted, except in cases where
the origin of the waste and its constituents are well documented, we
believe classifying a previously disposed waste as K181 will be
difficult, at best.
If actively managed landfill leachate and gas condensate derived
from the newly-listed wastes proposed for listing in today's notice
could be classified as K181, we would be concerned about the potential
disruption in current leachate management that could occur, and the
possibility of redundant regulation.\58\ This issue was raised to the
Agency in the context of the petroleum refinery waste listings (see 63
FR 42173, August 6, 1998). A commenter expressed concern that, because
some of the commenter's nonhazardous waste landfills received newly-
listed petroleum wastes prior to the effective date of the listing
decision, the leachate that is collected and managed from these
landfills would be classified as hazardous. The commenter argued that
this could lead to vastly increased treatment and disposal costs
without necessarily any environmental benefit. After examining and
seeking comment on this issue, we published a final rule that
temporarily defers regulation of landfill leachate and gas condensate
derived from certain listed petroleum refining wastes (K169-K172) that
were disposed before, but not after, the new listings became effective,
provided certain conditions are met. (See 64 FR 6806, February 11,
1999.) We proposed deferrals for similar wastes derived from landfills
in the 1999 proposal for the dye and pigment industries (64 FR 40192,
July 23, 1999), the inorganic chemical manufacturing industries (65 FR
55684, September 14, 2000), the chlorinated aliphatics industry (65 FR
67068, November 8, 2000) and the paint and coatings industry (66 FR
10060, February 13, 2001). We also promulgated a final listing
determination for the inorganic chemical manufacturing industries that
retains the deferral (66 FR 58258, November 20, 2001).
---------------------------------------------------------------------------

\58\ We do not believe that the mass loading limits in the
proposed K181 listing would be useful in determining if the leachate
was K181 waste. This is because the mass loading limits in K181 were
derived for nonwastewaters, not landfill leachate, which are
wastewaters.
---------------------------------------------------------------------------

At the time this issue was brought to the Agency's attention in the
context of the petroleum refinery waste listings, EPA's Office of Water
had recently proposed national effluent limitations guidelines and
pretreatment standards for wastewater discharges--most notably,
leachate--from certain types of landfills. (See 63 FR 6426, February 6,
1998). In support of this proposal, EPA conducted a study of the volume
and chemical composition of wastewaters generated by both subtitle C
(hazardous waste) and Subtitle D (nonhazardous waste) landfills,
including treatment technologies and management practices currently in
use. Most pertinent to finalizing the temporary deferral for the
petroleum refining wastes, EPA did not propose pretreatment standards
for subtitle D landfill wastewaters sent to POTWs because the Agency's
information indicated that such standards were not required. EPA
subsequently finalized its decision that pretreatment standards were
not necessary (see 65 FR 3008, January 19, 2000).
The conditions included in the temporary deferral we published on
February 11, 1999 are that the leachate is subject to regulation under
the Clean Water Act, and the leachate cannot be stored in surface
impoundments after a period of two years. See 40 CFR 261.4(b)(15). We
believe that it was appropriate to temporarily defer the application of
the new waste codes to such leachate in order to avoid disruption of
ongoing leachate management activities, while the Agency decides if any
further integration is needed of the RCRA and CWA regulations
consistent with RCRA section 1006(b)(1). We believe that it is still
appropriate to defer regulation and avoid leachate management
activities, and to permit the Agency to decide whether any further
integration of the two programs is needed. As such, we would be
concerned about forcing pretreatment of leachate even though
pretreatment is neither required by the CWA, nor needed. Therefore, we
are proposing to temporarily defer the regulation of landfill leachate
and gas condensate derived from management of K181 waste that we are
proposing for listing in today's rule, with the same conditions as
described in 40 CFR 261.4(b)(15) for petroleum wastes. We request
comment on this proposed conditional deferral.

V. Proposed Requirements for K181 Determinations

We are proposing that listing determinations for K181 would be
self-implementing. This means that you (the waste generator) would be
responsible for determining whether or not your wastes are K181 listed
hazardous wastes at the point of generation based on the proposed
procedures we describe below. First, you must determine whether your
nonwastewaters are included within the categorical K181 text (i.e.,
nonwastewaters from the production of azo, triarylmethane, perylene and
anthraquinone dyes or pigments). If so, then you would need to
determine if your nonwastewaters could contain any of the K181
constituents of concern (CoCs). If your wastes at the point of
generation could not contain any of the CoCs, we are proposing that
your wastes are not subject to K181.
If your dyes and/or pigments production nonwastewaters might
contain any of the K181 CoCs and you wish to demonstrate that the mass
loadings of these constituents in your waste are below the regulatory
levels, you would use one of two demonstration methodologies, depending
on the annual quantity of waste you generate. If you generate or expect
to generate 1,000 metric tons or less of these wastes in a calendar
year, then you would have the option of testing your wastes or using
your knowledge of the wastes to demonstrate that they are nonhazardous.
If you expect to generate more than 1,000 metric tons/year of these
wastes in a calendar year, then you would have to test the wastes
annually to demonstrate that they are nonhazardous. Our reasons

[[Page 66201]]

for proposing this two-tiered approach and requiring annual testing of
larger quantity wastes are discussed in section V.A.3 below.
If you determine that part or all of your dyes and/or pigments
production nonwastewaters are nonhazardous, we are proposing to
require, under the authority of sections 2002 and 3007 of RCRA, that
you keep certain records of your determination at the generating site
(onsite). You must make a new demonstration each calendar year. Your
wastes, however, would be hazardous if your onsite records and/or
testing conducted by EPA or an authorized state demonstrate the
presence of one or more CoCs at or above the listing mass loading
levels. Your wastes would also be hazardous if the landfill disposal
conditions were applicable, but were not satisfied.
Note that the proposed approach would mean that even if your mass
loadings meet or exceed the specified mass loading levels on an annual
basis, you may still manage as nonhazardous all wastes generated up to
the mass loading limit. In other words, we are proposing that the K181
listing would apply to only the portion of wastes that meet or exceed
the mass loadings. This is illustrated by the following example. Using
the proposed mass loading for toluene-2,4-diamine in Table IV-1 (0.99
kg/yr.), if a facility generates 200 kg/yr, the amount up to just below
the mass loading limit in Sec. 261.32(c)(1) (i.e., 0.99 kg/yr.) would
be nonhazardous, and the facility would only be required to handle the
waste containing the rest of the mass of toluene-2,4-diamine as
hazardous waste. Furthermore, if the generator sends this waste to a
landfill that meets the design requirements under Sec. 258.40, then
the generator may dispose up to just below the mass loading limit in
Sec. 261.32(c)(2) (i.e., 140 kg/yr) as nonhazardous and handle the
remaining portion above this limit as hazardous. This approach has some
advantages. First, this is consistent with the results of the risk
analysis, which indicates that quantities up to the loading limit could
be safely managed as nonhazardous. Second, this would simplify the
facility's concern with how to manage wastes generated during the year,
if the facility is not certain how close the waste will come to meeting
the loading limit for the entire year. Thus, if the facility has
sufficient knowledge to know that the cumulative total for intermediate
batches of the waste will not meet the loading limit, the facility can
safely handle and dispose of this portion of the waste as nonhazardous.
If or when the waste reaches the loading limit, then the facility
simply handles all subsequent waste as hazardous.
However, for wastes which meet or exceed the mass loading
threshold, another alternative would be for the loading limit to apply
to all of a generator's waste, including the waste generated before the
mass loading limit is met or exceeded. Under this option, a generator
would need a high level of certainty that wastes generated for the
calendar year would not meet or exceed the mass loading limits in Sec.
261.32(c)(1), or if the waste is sent to a landfill meeting the Sec.
258.40 design criteria, the waste would have to be below the limits in
Sec. 261.32(c)(2). This approach would be more consistent with past
listings, in which wastes with similar characteristics would be managed
the same, rather than allowing a portion of the waste to be managed as
nonhazardous. This approach would provide added incentive to a
generator to manage potentially hazardous wastes properly and perhaps
to reduce mass loadings through pollution prevention actions. However,
this approach may result in serious problems for a generator who, in
good faith, underestimates the mass loadings for a calendar year. If
the generator manages the waste as nonhazardous, and then discovers
that wastes generated later in the year cause the total waste to meet
or exceed mass loading limits, then the generator would be in violation
for improperly managing hazardous waste. Furthermore, if a Subtitle D
landfill accepted the initial waste batches as nonhazardous, then when
the generator reaches or exceeds the mass loading for that calendar
year, then all of the waste from that generator in that calendar year
would be hazardous waste subject to the K181 listing. The landfill
owner would have placed hazardous waste in units that do not meet the
requirements of Subtitle C. We solicit comment on this alternative
approach.
The following discussion covers how we are proposing that you could
demonstrate that your waste doesn't contain any CoCs at levels of
concern (section III.A), and how you could demonstrate that your waste
could be placed in a landfill that meets or exceeds the design criteria
in Sec. 258.40 as nonhazardous (section III.B). Section C describes
the proposed status of your wastes prior to completion of your
nonhazardous determination. Section D provides examples illustrating
how the listing determination for K181 might work. Section E describes
compliance and enforcement implications for the determinations.

A. How Do I Demonstrate That My Wastes Are Nonhazardous?

We are proposing that you could determine that your wastes are not
listed as K181 because they don't contain CoCs at levels in excess of
the listing levels in a number of ways.
1. Categorical Determination
You could determine that your wastes do not fall within the
categorical K181 text included in the proposed regulations for this
action under Sec. 261.32(a). For example, if you do not produce any
azo, triarylmethane, perylene, or anthraquinone products (as described
in proposed Sec. 261.32(b)), your nonwastewaters would not fall within
the scope of the listing. Any wastes that are already hazardous due to
the characteristics (Sec. Sec. 261.21-261.24) or are otherwise listed
(Sec. Sec. 261.31-261.33) do not also fall within the scope of the
listing. Wastewaters are not within the scope of the listing.
2. No K181 Constituents of Concern
We are proposing at Sec. 261.32(d)(1) that you can use your
knowledge of your wastes to demonstrate that your wastes do not contain
any of the K181 CoCs identified in Sec. 261.32(c)(1). You would have
to compare the CoCs identified in Sec. 261.32(c)(1) for K181 to
constituents expected in your wastes. You could use process knowledge
(e.g., knowledge of the constituents in your wastes based on existing
sampling and analysis data and/or information about raw materials used,
production processes used, and reaction and degradation products
formed) to make these initial determinations. If you determine that
your potential K181 wastes at the point of generation do not contain
any of the CoCs for K181 listed in Sec. 262.32(c)(1), then you can
determine your wastes to be nonhazardous. We are proposing that you
keep documentation onsite for three years supporting your
determinations that wastes are nonhazardous based on your knowledge
that they do not contain any of the CoCs. We discuss enforcement of
this and other recordkeeping provisions below in section E.
3. Low Quantity Versus High Quantity Wastes With K181 Constituents
If you generate less than 1,000 MT/yr of nonwastewaters that meet
the K181 categorical description, you are eligible for determining that
your wastes do not exceed the Sec. 261.32(c)(1) or (c)(2) listing
levels using the procedures proposed in Sec. 261.32(d)(2). These
procedures are based on your knowledge of your wastes, and do not
require that you

[[Page 66202]]

conduct waste analysis to support your demonstration. The procedures
that apply to generators of quantities less than 1,000 MT/yr of waste
are described further in section 4 below. If you generate more than
1,000 MT/yr, you would have to use the more extensive procedures
proposed in Sec. 261.32(d)(3) to demonstrate that your wastes are not
hazardous, as described further in section 5, below.
To support either a Sec. 261.32(d)(2) or Sec. 261.32(d)(3)
demonstration, you will need to keep track of how much potential K181
waste you generate from January 1 to December 31 of each year. For the
year that this listing becomes effective, the demonstration would cover
the period of time between the effective date and December 31 of that
year. We are proposing a calendar year basis for these demonstrations
to ease implementation of the rule, ensuring that industry and
regulators have a common, clear understanding of the time period
covered by such demonstrations.
In the proposed categorical K181 text, these wastes are defined as
nonwastewaters from the production of dyes and/or pigments (including
nonwastewaters commingled at the point of generation with
nonwastewaters from other processes) that are not otherwise already
listed or captured by the hazardous waste characteristics. To the
extent that your nonwastewaters from other processes are segregated
from wastes that fall within the scope of K181, they would not be
included in your K181 waste quantity determination. Similarly, your
dyes and/or pigments production wastes that are listed as hazardous for
listings other than K181, or that are characteristically hazardous
would not be included in your K181 waste quantity determination.
However, if you generate a commingled waste (such as wastewater
treatment sludge or other wastes) that contains waste contributions
from both K181 and non-K181 sources (that are not otherwise hazardous),
the entire commingled waste volume would be included in your K181 waste
quantity determination, until and unless you were to segregate these
sources. See discussion above in section IV.A.7 on commingled wastes.
The rationale for the selection of 1,000 metric tons per year (MT/
yr) cutoff for the two tiers is included in the docket for today's
rule.\59\ In general, the 1,000 MT/yr cutoff for nonwastewaters (above
which testing is required) is intended to ensure that the largest
quantities of nonwastewaters generated by the dyes and/or pigments
production facilities are tested and, at the same time, to minimize the
burden on small generators. We believe that larger quantities of wastes
have the potential for posing greater environmental risk than smaller
quantities of wastes if a nonhazardous determination based on knowledge
turns out to be inaccurate. Therefore, we believe it is reasonable to
require larger quantity waste generators to test their wastes to make
their determination, while smaller quantity waste generators are given
the option to either test their wastes or use knowledge of their wastes
annually to make a determination. We request comment on the
appropriateness of giving smaller quantity waste generators the option
of using knowledge of their wastes in making such a demonstration. We
will consider requiring smaller quantity waste generators to test their
wastes, like the larger quantity waste generators, if significant and
defensible arguments are presented by commenters to support these
requirements as necessary and appropriate. We will also consider
adjusting the 1,000 Mt/yr cut off higher or lower, if we receive more
precise information on waste quantities.
---------------------------------------------------------------------------

\59\ See Appendix J in the Listing Background Document for
``Determination of Tiered Waste Analysis Requirements for Dyes and/
or Pigments Production Nonwastewaters.''
---------------------------------------------------------------------------

We request comment on an alternative to the two-tiered
implementation approach discussed above. The alternative implementation
approach would allow any generator to rely on either process knowledge
or testing to evaluate the concentrations of CoCs in their
nonwastewaters, irrespective of the annual quantity generated. This
implementation approach would be similar to the existing program for
determining whether a waste exhibits a hazardous characteristic (see 40
CFR 261.24 and 262.11). Although we prefer the two-tiered approach
being proposed in today's rule, we will give careful consideration to
any arguments presented or relevant waste analysis data submitted in
response to today's proposal (e.g., data showing that only a small
portion of the wastes in the industry exceed the listing mass levels)
to decide whether an alternative approach is warranted.
4. Section 261.32(d)(2) Demonstrations for Waste Quantities Less Than
1,000 MT/yr
If you generate less than 1,000 MT/yr of wastes potentially subject
to K181, you can use knowledge to demonstrate that your waste does not
contain mass loadings above either set of K181 listing levels. The
following discussion describes our proposed approach to this type of
demonstration.
Estimate Waste Quantity: You must estimate how much waste you
expect to generate in the next calendar year (e.g., based on past
annual waste generation data and/or current knowledge about future
generation). You must include all wastes that meet the categorical K181
listing description to determine the total waste quantity for the dyes
and/or pigments production nonwastewaters.
If you initially estimated that your waste generation would be less
than 1,000 MT/yr and, at any time within the year you exceed 1,000 MT/
yr, you would then no longer be eligible for making a Sec.
261.32(d)(2) demonstration, and would need to comply with Sec.
261.32(d)(3) to demonstrate that the remainder of the waste that you
generate in that calendar year is not hazardous. This means that if you
had not already been testing your wastes to demonstrate that they are
not hazardous, you would then have to test your wastes for the
remainder of the year.
Track Waste Generation: You must track the actual quantity of dyes
and/or pigments production nonwastewaters generated during each
calendar year. Again, you must include all wastes that meet the listing
description for K181 to determine the total waste quantity for the dyes
and/or pigments production nonwastewaters.
Estimate Waste Mass Loadings Using Knowledge: Under a Sec.
261.32(d)(2) determination, we are proposing that you could use
knowledge of your wastes (e.g., knowledge of the constituents in your
wastes based on existing sampling and analysis data and/or information
about raw materials used, production processes used, and reaction and
degradation products formed) to estimate waste concentrations for the
constituents of concern in your waste, and to then calculate estimated
mass loading levels for the CoCs. You should calculate the cumulative
mass loadings of the CoCs in your waste over the course of the year,
taking into consideration known variations in constituent concentration
over the course of the year. You should estimate the mass loadings of
the CoCs associated with each shipment of wastes during the year. So
long as your cumulative estimated mass loading levels during the year
remain below the regulatory levels, you can manage your waste as
nonhazardous. Note that a new determination would have to be made in
subsequent calendar years, with the possible changes noted below under
Subsequent Annual Determinations.
Recordkeeping: If you make a knowledge-based determination that

[[Page 66203]]

levels of the CoCs in your wastes are below the regulatory levels, then
we are proposing that you keep the following records onsite for three
years to support your Sec. 261.32(d)(2) nonhazardous determination:
[sbull] The actual quantity of dyes and/or pigments nonwastewaters
generated.
[sbull] The process knowledge information that was used.
[sbull] The calculations performed to determine mass and annual
running total mass levels for each CoC in the waste during the year
based on process knowledge information that was used to support a
nonhazardous determination.
We discuss the consequences of failing to keep records below in
section E.
5. Section 261.32(d)(3) Demonstrations for Waste Quantities Greater
Than 1,000 MT/yr
If the annual volume of your potential K181 nonwastewaters is
greater than 1,000 MT/yr and you wish to demonstrate that your wastes
do not exceed any of the relevant mass-based loading thresholds, we are
proposing that you must test your wastes. You may not use knowledge of
the wastes to determine the levels of the CoCs in your wastes. For
those wastes that you must test, we are proposing that you use the
following procedures:
[sbull] Determine which K181 constituents are reasonably expected
to be present in your waste.
[sbull] Develop a waste sampling and analysis plan (SAP) (if you do
not already have one that is appropriate) to collect and analyze
representative samples of your wastes for those constituents.
[sbull] Collect and analyze an appropriate number of representative
samples of your wastes in accordance with your waste SAP.
[sbull] Record the actual quantity of wastes that is represented by
your sampling and analysis results.
[sbull] Calculate CoC-specific mass loadings (multiply the CoC
concentration by waste quantity).
[sbull] Determine whether the annual running total mass (year-to-
date mass loadings) for CoCs, including mass totals from earlier in the
year, are below the K181 listing mass levels.
[sbull] Keep your records onsite for three years.
[sbull] Conduct your determination each calendar year to verify
that the wastes remain nonhazardous.
Each of these steps is described further below.
Identify Target Constituents: Using knowledge of your wastes, you
would need to identify which of the K181 constituents are potentially
present in your wastes (proposed Sec. 261.32(d)(3)(i)). If you can use
your knowledge to demonstrate that any of the Sec. 261.32(c)(1) or
(c)(2) constituents would not or could not be present in your waste,
you would not be required to conduct any waste analysis for those
constituents. Your ``knowledge'' might include previous waste analyses
(conducted for a different purpose), information about raw materials
used at your facility, production processes in use, and reaction or
degradation products potentially formed in your process or waste
handling.
Waste Sampling and Analysis Plan: You must develop a sampling and
analysis plan to characterize the levels of the K181 constituents that
may be present in your wastes. Your SAP must consider any expected
temporal or spatial fluctuations in CoC concentrations. Your sample
design must be described in the SAP. The sample design and the
sensitivity of the analytical methods used must be sufficient to
determine whether the mass levels of the CoCs in your wastes (based on
the quantity of wastes you generate annually and concentrations of the
CoCs in your wastes) are above or below the mass loading-based levels
for these constituents.
Conduct Sampling and Analysis: Following your SAP, you then would
collect the appropriate number of samples, and conduct the planned
waste analysis. Note that we are not proposing a required number of
samples that you would need to collect annually to obtain
representative data for your wastes. When you determine the appropriate
number of samples to be collected, you must consider facts such as the
variability of the wastes you generate during the course of the year.
We are not proposing mandated use of grab or composite sampling to
obtain samples that are representative of your wastes. However, it
would be your responsibility to ensure that your sampling and analysis
is unbiased, precise, and representative of your wastes and to provide
documentation of this representativeness in your SAP.
Similarly, we are not mandating the use of specific analytical
methods, so long as you can demonstrate that the selected methods have
the appropriate sensitivity, bias, and precision to determine the
presence or absence of the constituents of concern at or below K181
mass loading levels. Specifically, we are not proposing to require the
use of SW-846\60\ methods to comply with these requirements. However,
you would be required to document the: (1) Detailed standard operating
procedures (SOPs) for the sampling and analysis protocols that you
used; (2) sensitivity and bias of the measurement process; (3)
precision of the analytical results for each batch of waste tested; and
(4) analytical results.
---------------------------------------------------------------------------

\60\ EPA Publication SW-846, ``Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods.''
---------------------------------------------------------------------------

We would consider the analytical results adequate to support your
demonstration if you show, using spiked samples for the CoCs, that
those constituents can be measured at concentrations corresponding to
the regulatory levels in your wastes, within the analytical method
performance limits (e.g., sensitivity, bias, and precision). You might
establish this target concentration for your spiked sample analysis by
dividing the K181 listing level by your projected annual waste
quantity. To determine the performance limits for a method, we
recommend following quality control (QC) guidance provided in Chapters
One and Two of SW-846. Your method performance data should be retained
onsite with your analytical results as described below.
Calculate Mass Loadings: We are proposing that you must record your
analytical results (Sec. 261.32(d)(3)(iv)), record the quantity of
your wastes associated with those results (Sec. 261.32(d)(3)(v)), and
calculate the corresponding constituent-specific mass loadings (product
of constituent concentration and waste quantity) (Sec.
261.32(d)(3)(vi)).
Following sampling and analysis, you must calculate the mass of
each constituent of concern in your wastes and keep a running total of
the mass of each CoC throughout the year. In addition, you should also
calculate mass loading levels for the CoCs in your waste and keep a
running total of the mass of each CoC prior to disposal of any quantity
of your waste during the year. The mass of a CoC depends on both the
quantity of waste and the concentration of the constituent in the
waste. For example, 1,000 metric tons (1 million kilograms) of waste
that contains a constituent at a concentration of 1 mg/kg will have 1
million milligrams (or 1 kilogram) of that constituent. During the
year, the dyes and/or pigments nonwastewaters that are generated may
contain different concentrations of a constituent. In this case, the
mass of a constituent in a fixed quantity of waste will also go up or

[[Page 66204]]

down based on the concentrations of the constituent in the wastes being
generated. A running total for the mass of a constituent will be the
sum total of all mass calculations for the constituent in all
quantities of nonwastewaters that have been generated from beginning of
the year to present. At the end of the year, if the annual running
total mass of a CoC is less than its listing mass level, it will be
possible to demonstrate that a final annual mass of a CoC in the waste
is below its listing mass level.
To determine the mass of a CoC, we are proposing that you use the
maximum detected concentration or, if multiple samples have been
collected, you may use either the maximum or a concentration based on
the 95th percentile upper confidence limit on the mean, for each CoC
and multiply it with the total waste quantity which it characterizes.
However, we request comment on whether you should be allowed to average
the concentrations of constituents detected in multiple waste samples.
Alternatively, we request comment on whether use of another confidence
limit of the mean (e.g., 90th or 80th percentile) would be more
appropriate for concentrations of constituents detected in multiple
samples.
If your tested wastes are representative of the wastes that will be
generated during part or the rest of the year (or you can reliably
determine that these wastes exhibited the maximum concentrations for
the constituents of concern), then you could use these concentrations
for each CoC to calculate the additional mass of each CoC in your waste
based on additional waste that you generate for part or rest of the
year.
Compare Loadings to K181 Listing Limits: You would need to track
the cumulative mass loading of CoCs in your waste over the course of
each year. As long as the cumulative mass for each CoC in your waste
remains below the respective K181 levels during the course of the year
(and you meet the landfill disposal condition, if applicable), then
your corresponding waste quantity generated to that point in time would
be nonhazardous. You would, however, continue to be responsible for
maintaining records that support a nonhazardous determination. However,
if the cumulative mass for any of the constituents of concern equals or
exceed its listing mass level during the course of the year, then at
that point your waste would be listed hazardous waste and subject to
all applicable RCRA Subtitle C hazardous waste requirements. Waste
generated in the same year prior to that point would remain
nonhazardous waste. It would not become subject to the K181 listing.
Earlier in section V. we solicited comment on an alternative approach
that would have the listing determination applying to all wastes
generated in any year that the listing levels are exceeded.
Keep Records Onsite: Under Sec. 261.32(d)(3)(viii), we are
proposing that you keep the following records onsite for three years to
support a nonhazardous determination based on testing:
[sbull] The sampling and analysis plan used for collecting and
analyzing samples representative of your wastes, including detailed
sampling methods used to account for spatial and temporal variability
of the wastes, and sample preparative, cleanup (if necessary) and
determinative methods.
[sbull] The sampling and analysis data (including QA/QC data) and
knowledge (if used to determine that one or more constituents of
concern are not present in the wastes) that support a nonhazardous
determination.
[sbull] The actual quantity of dyes and pigments nonwastewaters
generated.
[sbull] The calculations performed to determine mass and annual
running total mass levels for each CoC in the waste during the year
that support a nonhazardous determination.
[sbull] If the annual testing requirements for your wastes were
suspended based on three consecutive years of nonhazardous
determinations (see Subsequent Annual Determinations in the following
section), then you need to keep the process knowledge information used
to support a nonhazardous determination. If testing is re-instituted
(following suspension of testing requirements) because of a significant
process change (as discussed further below), then describe this process
change.
We request comment on the adequacy of the above recordkeeping
requirements to support a nonhazardous determination. See section E
below for a discussion of the consequences of failing to meet these
recordkeeping requirements.
Subsequent Annual Determinations: We are proposing that you
continue to perform waste analysis annually after you have determined
your wastes to be nonhazardous for the purpose of verifying that your
wastes remain nonhazardous.
We are proposing that subsequent waste analysis requirements could
change under the following circumstances:
(i) After completing annual testing requirements for your wastes
under Sec. 261.32(d)(3), if the annual running total mass levels for
the CoCs during any three consecutive years based on sampling and
analysis results for the CoCs in your wastes are determined to be
nonhazardous, then the annual testing requirements for your wastes
would be suspended and you could use knowledge of your wastes annually
to support a nonhazardous determination.
(ii) After suspension of the annual testing requirements for your
wastes, if dyes and/or pigments production or waste treatment processes
generating these wastes are significantly altered (i.e., if it could
result in significantly higher levels of the CoCs for K181 in your
wastes and greatly increase the potential for your wastes to become
hazardous), then the annual testing requirements for your wastes would
be reinstituted. In order to again suspend the annual testing
requirements for your wastes, the requirement under step (i) above
would have to be met.
We request comment on whether the annual testing requirement should
be continued beyond three years, if the generator determines all of its
dyes and/or pigments production wastes to be nonhazardous for three
consecutive years. Following suspension of annual testing requirements,
the generator would still be liable if testing by EPA or an authorized
state finds the waste to be hazardous.
6. EPA and State Oversight
Regardless of which approach you choose to determine whether your
waste contains constituents in amounts lower than the Sec.
261.32(c)(1) or (c)(2) listing levels, EPA and authorized States may
make their own determinations for enforcement and oversight purposes.
EPA and authorized States may sample your waste and calculate the mass
of any constituent of concern. If EPA concluded that your waste met or
exceeded the applicable mass limits, it could bring an enforcement
action under section 3008 of RCRA for violations of hazardous waste
requirements if you have not managed the waste in compliance with
applicable Subtitle C requirements. Authorized States could use
enforcement authorities under State law.

B. How Do I Document Compliance With the Landfill Condition?

You may determine through a Sec. 261.32(d)(2) or (3) determination
that your wastes in fact contain K181 constituents at levels in excess
of the Sec. 261.32(c)(1) listing levels. If your demonstration shows,
however, that the level in your wastes of the Sec. 261.32(c)(2)
constituent is below their corresponding Sec. 261.32(c)(2) listing
level, you may manage your wastes as nonhazardous if

[[Page 66205]]

you dispose of them in a landfill cell subject to Part 258 or Subtitle
C design standards.
As noted above in section IV, Sec. 258.40 applies to new MSWLFs or
new cells at existing MSWLFs. It requires use of a composite liner and
leachate collection system or an equivalent design approved by the
Director of an approved state program or by EPA. The composite liner
must include a synthetic layer. The infiltration rates we modeled for
landfills with synthetic liners were based on data from landfills with
composite liners very similar to the design required under Sec.
258.40. Consequently, we are proposing to allow disposal of dyes and/or
pigments production nonwastewaters meeting the Sec. 261.32(c)(2) mass
limits in a municipal landfill cell that is subject to the Sec. 258.40
design requirements.
We are specifying that the cell must be subject to these
requirements because we believe that some operating landfills still use
older cells that are not required to meet the design requirements. Our
risk assessment shows that placing dyes and/or pigments nonwastewaters
with constituent masses up to the Sec. 261.32(c)(2) level in unlined
landfills would not adequately protect human health and the
environment.
EPA has found that 49 states have adequate permitting programs to
implement the Part 258 regulations for MSWLFs. Permit programs must
ensure that all MSWLFs in the state comply with the Sec. 258.40 design
standards. (See 40 CFR 239.6 (e).) No dyes and/or pigments production
facility is located in the state that lacks EPA approval. Consequently,
we think that all landfill cells subject to the Part 258 design
standards are complying with those standards. We request comment,
however, on whether we should also require a more specific
demonstration that the landfill cell is in compliance with the design
standards--and, if so, what it should consist of, and who would be
responsible. One possibility would be to require the use of a cell
subject to Sec. 258.40 at a MSWLF that has a permit issued under a
state program that EPA found to be adequate under 40 CFR part 239.
Some generators of dyes and/or pigments production wastes may
choose to send nonwastewaters meeting the Sec. 261.32(c)(2) limits
wastes to hazardous waste landfills. New landfill units and lateral
expansions of existing hazardous waste landfills are required to have
``double'composite liners including synthetic components. See 40 CFR
264.301 and 265.301. Available data suggest that these liner systems
have even lower infiltration rates than the liners required under part
258. We are proposing to give generators the option of sending wastes
with constituents up to the Sec. 261.32(c)(2) levels to landfill cells
subject to these stricter hazardous waste liner requirements.
We request comment on whether a third class of appropriate landfill
should be included, namely, industrial solid waste landfill cells that
have liner systems that meet the Sec. 258.40 or Subtitle C standards.
We request comment on what an appropriate demonstration might consist
of, and who should be responsible for making the demonstration.
We are proposing to require you to keep records showing that you
used a qualifying landfill cell. We are not proposing any specific
requirements. Rather, we are proposing a more flexible performance
standard similar to the documentation requirement in 40 CFR 261.2(f)
for claims that materials are not solid wastes. One of the simplest
ways to demonstrate fulfillment of the landfill disposal condition may
be to provide, upon request by a compliance or enforcement official, a
copy of a signed contract with either a municipal landfill subject to
the relevant Part 258 requirements or a hazardous waste landfill
subject to Subtitle C requirements. The contract would need to show
that the landfill operator would use only cells subject to the
applicable Part 258 or Subtitle C design requirements. In cases where
such a contract does not exist, the following alternative types of
documentation may be adequate: signed nonhazardous waste manifests,
shipping papers, or invoices showing that wastes were placed in
municipal landfills cells subject to the applicable Part 258 or
Subtitle C design requirements.
We would regard a showing that all of your recent or ongoing
shipments of potential K181 wastes have been sent to appropriate
landfill cells as sufficient evidence of intent to continue to use
appropriate landfill cells for any wastes that you are storing onsite
prior to shipment.
As explained in more detail in section E below, if your potential
K181 waste is not disposed of in a qualifying landfill cell, or you
cannot demonstrate that it was, your waste is subject to the K181
listing from the time that it was generated, and EPA or an authorized
state may take enforcement action against any person who failed to meet
applicable Subtitle C requirements while they managed it.

C. How Would I Manage My Wastes During the Period Between Generation
and Hazardous Waste Determination?

If you generate wastes that are included within the categorical
K181 text, you may not presume that your wastes are not subject to the
listing until you make a determination which shows that your wastes are
nonhazardous. From the time you generate the wastes to the time you
make a determination on your wastes, you are responsible for storing
your wastes properly. If your wastes are determined to be hazardous and
you did not comply with applicable Subtitle C requirements prior to the
determination, then you could be subject to an enforcement action.

D. Implementation Examples

To assist you and the regulating authorities alike in understanding
the proposed implementation procedures for K181, we present below some
scenarios describing how different types of dyes and/or pigments
production facilities would determine whether or not their
nonwastewaters would be subject to the proposed K181 listing. These
examples cover those circumstances where facilities assess whether they
can use knowledge or must use sampling and analysis to determine that
their wastes are not subject to regulation as K181. Note that these
examples are not meant to describe all situations.

Example 1: Using knowledge to show waste contains no K181
constituents (Sec. 261.32(d)(1)).

Facility A manufactures a limited number of azo dyes, as well as a
variety of dye product classes not addressed by the K181 listing scope.
The facility reviews the raw materials used in the production of its
azo dyes and determines that none of the K181 constituents are used in
their azo dye production. In addition, the facility assesses their azo
product line and determines that none of the K181 constituents would be
present in their nonwastewaters as a result of reaction byproducts, or
degradation of their products or raw materials, or as a result of being
present in their raw materials as impurities. The facility documents
its findings as per proposed Sec. 261.32(d)(1), and manages their
wastes as nonhazardous.

Example 2: Quantities Less Than 1,000 MT/yr: Using knowledge to
show wastes do not exceed Sec. 261.32(c)(1) listing levels (Sec.
261.32(d)(2)).

Facility B manufactures disazo and triarylmethane pigments. The
facility routinely uses several K181

[[Page 66206]]

constituents, aniline and p-cresidine, as pigment raw materials. Its
production processes generate mother liquor, process filtrates,
equipment washouts, spent filter aids and various solid residues. All
wastewaters are discharged to a local POTW for treatment.
Nonwastewaters, approximately 20 metric tons per month (totaling 240
metric tons per year), are accumulated in dumpsters prior to disposal.
The facility believes that its nonwastewaters will not exceed the
Sec. 261.32(c)(1) listing levels. As less than 1,000 metric tons of
total nonwastewaters are generated each calendar year, the facility can
use knowledge of its processes and wastes to estimate its waste
constituent levels under proposed Sec. 261.32(d)(2). Based on its
assessment of the raw materials used in the production lines, the
facility calculates that its pigment production processes use no more
than 1,800 kg/year of aniline and 150 kg/year of p-cresidine per
calendar year; and no other K181 chemicals are used as input materials.
In addition, the facility does not use aniline or p-cresidine for any
other purposes onsite. Based on its assessment of its process chemistry
and review of raw material purity information, the facility concludes
that none of the other K181 chemicals are expected to be present in its
nonwastewaters.
The facility thus determines that its pigment production
nonwastewaters do not meet the definition of K181 because the wastes
would not contain more than the listing levels of 9,300 kg/year and 660
kg/year of aniline and p-cresidine, respectively, and no other K181
constituents are expected in the wastes. The facility documents its
findings as per (d)(2), and manages the waste as nonhazardous.

Example 3: Quantities Less Than 1,000 MT/yr: Using knowledge to
show wastes do exceed Sec. 261.32(c)(1), but do not exceed Sec.
261.32(c)(2) listing levels, and thus can be landfilled as
nonhazardous in landfill subject to Sec. 258.40 or Subtitle C
design standards (Sec. 261.32(d)(2)).

Facility C manufactures a variety of azo and anthraquinone dye
products using many ingredients that include 1,3-phenylenediamine, 4-
chloroaniline, and toluene-2,4-diamine. The spent process liquors,
equipment rinses and other wastewaters resulting from the production
are piped to storage tanks, mixed there, and then treated chemically
and biologically in several treatment tanks. The treated wastewater is
discharged to an adjacent river under an NPDES permit. The facility's
records show that the treatment tanks generate wastewater treatment
sludge at the average rate of 60 metric tons a month. In addition,
approximately 15 metric tons/month of spent filter aids and other
process nonwastewaters result from the production processes. The
facility commingles its nonwastewaters in storage bins, and ships them
offsite for final disposal in a landfill.
The facility determines in the beginning of the calendar year that
the combined quantity of the wastewater treatment sludge and other
nonwastewaters in question is projected to be less than 1,000 metric
tons for the year, and thus should be subject to the low volume K181
listing determination procedure under Sec. 261.32(d)(2). Also, based
on its well-documented knowledge of product manufacturing, waste
generation and treatment, and wastewater analyses for NPDES discharge,
the facility calculates using mass balance that the commingled
nonwastewaters could not contain more than 100, 1,000, and 80 kg per
year of 1,3-phenylenediamine, 4-chloroaniline, and toluene-2,4-diamine,
respectively, using worst-case assumptions. The facility then compares
these estimated loadings to the Sec. 261.32(c)(1) listing limits and
finds that their projected levels of 1,3-phenylenediamine and 4-
chloroaniline are well below the listing limits; while the level of
toluene-2,4-diamine exceeds the listing limit of 0.99 kg/year specified
in Sec. 261.32(c)(1). The facility now compares the projected level of
toluene-2,4-diamine to the level in Sec. 261.32(c)(2) of 140 kg/yr,
and concludes that the nonwastewaters are not projected to trigger the
Sec. 261.32(c)(2) listing level. Therefore, the facility determines
that its nonwastewaters can be managed as nonhazardous when disposed of
in a municipal landfill cell subject to the design criteria in Sec.
258.40 or the Subtitle C landfill design criteria.
The facility documents its findings as per Sec. 261.32(d)(2), and
manages the waste as nonhazardous in an appropriate landfill. The
facility retains documentation regarding the landfill used to manage
the waste as per Sec. 261.32(d)(4).

Example 4: Quantities Greater Than 1,000 MT/yr: Using waste
analysis to show wastes do exceed Sec. 261.32(c)(1), but do not
exceed Sec. 261.32(c)(2) listing levels, and thus can be landfilled
as nonhazardous in landfill that meets or exceeds Sec. 258.40
(Sec. 261.32(d)(3)).

Facility C, described in the previous example, projects in January
of the subsequent year, that it will still be able to successfully make
a Sec. 261.32(d)(2) demonstration that its wastes are not K181, and
continues to dispose of its nonwastewaters at a permitted municipal
landfill subject to Sec. 258.40. By October of that year, however, the
facility determines that it has generated 1,000 metric tons of
nonwastewater due to increased dye production. In addition, the
facility estimates that another 200 metric tons would be generated by
the end of December. To continue to demonstrate that its wastes are not
K181, the facility now is subject to Sec. 261.32(d)(3). Accordingly,
the facility develops a waste sampling and analysis plan under Sec.
261.32(d)(3), and then collects and tests representative waste samples
for the remainder of the year to demonstrate that the nonwastewaters
are still nonhazardous. The analytical results show the maximum
concentrations of 29.2, 583, and 41.7 mg/kg for 1,3-phenylenediamine,
4-chloroaniline, and toluene-2,4-diamine, respectively, and contain no
other K181 constituents. With these maximum constituent concentrations
and the revised waste quantity of 1,200 metric tons, the facility
calculates that the nonwastewaters contain no more than 35 kg,\61\ 700
kg, and 50 kg of 1,3-phenylenediamine, 4-chloroaniline, and toluene-
2,4-diamine for the entire year, which are below the worst case
constituent quantities initially estimated under the prior year's Sec.
261.32(d)(2) demonstration. With this confirmation, the facility
continues to ship the nonwastewaters generated in November and December
to the appropriate municipal landfill. The facility documents its
findings as per Sec. 261.32(d)(3). The facility retains documentation
regarding the landfill used to manage the waste as per Sec.
261.32(d)(4).
---------------------------------------------------------------------------

\61\ Example calculation: 29.2 mg/kg x (1,200 metric tons x
1,000 kg/metric ton) = 35,000,000 mg = 35 kg
---------------------------------------------------------------------------

For the next two years, the facility continues to generate more
than 1,000 metric tons of nonwastewater each year, and thus continues
to sample and analyze its wastes to demonstrate that they do not meet
the K181 listing description. At the conclusion of the third year, the
facility can revert to a knowledge-based Sec. 261.32(d)(2)
demonstration, so long as it doesn't modify its process in a way that
might result in higher loadings in excess of the listing limits of any
of the K181 constituents in its nonwastewaters.

Example 5: Quantities Greater Than 1,000 MT/yr: Using waste
analysis to show wastes exceed Sec. 261.32(c)(2) listing levels,
requiring full Subtitle C compliance, pollution prevention
subsequently reduces loadings below Sec. 261.32(c)(2) levels.

Facility D produces a variety of dyes and pigments, some of which
do not fall

[[Page 66207]]

under the K181 listing description, using a number of the chemicals
listed under Sec. 261.32(c)(1). The site is equipped with a
centralized wastewater treatment (WWT) system that treats all of the
wastewaters resulting from the plant's overall operations, discharging
the treated wastewater to a surface body under an NPDES permit and
generating 800 metric tons of sludge filter cake each calendar year.
Moreover, the facility generates numerous batches of nonwastewaters,
totaling 400 metric tons/year, from the multiple manufacturing process
lines, such as filtration sludges, used filter aids/cloths, dust and
fines, and unusable off-specification products. The facility manages
these process nonwastewaters along with the WWT sludge.
Due to the combined nonwastewater quantity (800 metric tons of WWT
sludge plus 400 metric tons of process solids) in excess of 1,000
metric tons/year, the facility must follow the Sec. 261.32(d)(3)
determination process, including sampling and analysis for the
constituents expected to be present in the wastes, to demonstrate that
the nonwastewaters do not meet the K181 listing criteria.
The facility determines through waste analysis that its
nonwastewaters contain more than 500 kg/yr of toluene-2,4-diamine,
which exceeds the Sec. 261.32(c)(2) listing levels. The facility
believes that much of the 500 kg/yr loading is attributable to
production processes not covered by the K181 scope. Due to the
commingled nature of the WWT sludge, however, the entire quantity of
the sludge (as well as the other nonwastewaters linked to K181
processes) is subject to the K181 listing. This waste must therefore be
managed as a hazardous waste, and must meet the corresponding BDAT
standards for K181 before being disposed.
The facility conducts an audit of its production processes, and
determines that it can reduce the levels of toluene-2,4-diamine in its
nonwastewaters through a variety of pollution prevention techniques.
After implementing the most cost-effective of these techniques, the
facility successfully reduces its toluene-2,4-diamine loadings to below
the Sec. 261.32(c)(2) listing levels, and subsequently manages its
waste in a municipal landfill subject to the design criteria in Sec.
258.40. The facility documents its findings as per Sec. 261.32(d)(3),
and manages the waste as nonhazardous. The facility retains
documentation regarding the landfill used to manage the waste as per
Sec. 261.32(d)(4).

Example 6: Quantities Greater Than 1,000 MT/yr: Using waste
analysis to show wastes do exceed Sec. 261.32(c)(1), but do not
exceed Sec. 261.32(c)(2) listing levels (Sec. 261.32(d)(3)), scope
determination for F003 waste, incremental management of wastes
generated prior to exceeding Sec. 261.32(c)(1) levels.

Facility E generates 500 MT/yr of process nonwastewaters from a dye
production process that uses solvents. The waste is already classified
as F003 and therefore is not subject to the K181 listing, even though
it contains toluene-2,4-diamine. The facility also generates wastewater
treatment sludge at a rate of 10,000 MT/yr. The facility, using
existing analytical data, calculates that the wastewater treatment
sludge contains 10 kg/yr of toluene-2,4-diamine.
The wastewater treatment sludge is classified as K181 because it
exceeds the Sec. 261.32(c)(1) listing level of 0.99 kg/yr of toluene-
2,4-diamine. The loading, however, does not exceed the Sec.
261.32(c)(2) listing level of 140 kg/yr, so the wastes would be
eligible for exclusion from K181 if the facility manages the wastes in
landfills subject to the Sec. 258.40 or Subtitle C landfill design
standards.
The facility also generates discrete batches of waste every four to
six weeks. By analyzing each batch and determining the toluene-2,4-
diamine mass in each batch, the facility is able to ascertain at which
point in time the cumulative mass loading in their waste approaches and
exceeds the Sec. 261.32(c)(1) listing level of 0.99 kg/yr. Until that
time, the wastes are not classified as K181.

E. What Are the Consequences of Failing To Meet Recordkeeping
Requirements or Listing Conditions?

In paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Sec. 261.32 of
the proposed rule, we are proposing to require generators of dyes and/
or pigments nonwastewaters from the listed product classes to keep
records under the authority of sections 2002 and 3007 of RCRA. We are
proposing that these provisions will be RCRA requirements and not
conditions which must be fulfilled to prevent the waste from being
classified as listed waste K181. Failure to comply with the proposed
recordkeeping requirements could result in an enforcement action by EPA
under section 3008 of RCRA or by an authorized State under similar
State authorities. This section of the statute authorizes the
imposition of civil penalties in an amount up to $27,500 for each day
of noncompliance. Authorized states could also bring action under
comparable state enforcement authorities.
We are proposing to make both sets of annual mass loading limits
and the lined landfill requirements applying to wastes meeting the
Sec. 261.32(c)(2) limits conditions of the listing. Dyes and/or
pigments nonwastewaters would become K181 wastes if anyone failed to
fulfill these conditions. EPA or authorized states could bring
enforcement actions for violations of hazardous waste requirements
against anyone who has not managed the waste in compliance with
applicable Subtitle C requirements.
Finally, we note that citizens may file suits under section 7002 of
RCRA to enforce the recordkeeping requirements or other Subtitle C
hazardous waste requirements if a condition is violated. Moreover,
citizens can take action under section 7002 of RCRA, and EPA can take
action under section 7003, if the management of dyes and/or pigments
nonwastewaters may pose an imminent and substantial endangerment to
human health or the environment.
A generator claiming that it is not subject to the listing would
have to maintain sufficient documentation to demonstrate that it has
not exceeded the relevant annual mass loading limits, and that it has
sent its waste to a landfill subject to Sec. 258.40 or Subtitle C
design standards (if it claims it is subject to the conditional
exemption for waste going to a lined landfill). EPA believes that basic
documentation is integrally related to the substantive conditions of
this proposal, since it would be difficult for a regulating agency (or
even the generator) to know whether a given shipment of waste is
hazardous absent records establishing the mass of constituents
generated year-to-date. EPA requests comment on whether the proposed
approach is sufficient to ensure enforceability of the proposed
substantive conditions, or whether some or all of the proposed record-
keeping requirements should be converted to conditions. EPA may make
all or some of these requirements conditions in the final rule, or
establish a general condition that the generator maintain sufficient
records to demonstrate that it is remains outside the scope of the
listing.

VI. Proposed Treatment Standards Under RCRA's Land Disposal
Restrictions

A. What Are EPA's Land Disposal Restrictions (LDRs)?

Congress has specified that land disposal of hazardous waste is
prohibited, unless the waste meets

[[Page 66208]]

treatment standards established by EPA before the waste is disposed, or
is disposed in units from which there will be no migration of hazardous
constituents for as long as the waste remains hazardous. RCRA sections
3004 (d), (e), (f), and (g). (These interrelated provisions are often
referred to as Land Disposal Restrictions, or LDRs.) Treatment
standards must substantially diminish the toxicity or mobility of
hazardous waste or constituents thereof, so that short- and long-term
threats to human health and the environment are minimized. RCRA section
3004(m). EPA is required to promulgate land disposal prohibitions and
treatment standards for waste identified or listed as hazardous after
November 1984 within six months of a final rule identifying or listing
such waste. We are proposing prohibitions and treatment standards for
all of the wastes which we are today proposing to list as hazardous. We
are further proposing that the date of the prohibition and treatment
standard be on the same date that the listing becomes effective.

B. How Does EPA Develop LDR Treatment Standards?

In an effort to make treatment standards as uniform as possible,
while adhering to the fundamental requirement that the standards must
minimize threats to human health and the environment, EPA developed the
so-called Universal Treatment Standards (UTS) (codified at 40 CFR
268.48). Under the UTS, whenever technically and legally possible, the
Agency adopts the same technology-based numerical limit for a hazardous
constituent regardless of the type of hazardous waste in which the
constituent is present. See 63 FR 28560 (May 26, 1998); 59 FR 47982
(September 19, 1994). The UTS, in turn, reflect the performance of Best
Demonstrated Available Treatment (BDAT) Technologies of the
constituents in question.
EPA is also authorized in section 3004 (m) to establish methods of
treatment as a treatment standard. Doing so involves specifying an
actual method by which the waste must be treated (unless a variance or
determination of equivalency is obtained). Given this constraint, EPA
prefers to establish numerical treatment standards, which leaves the
option of using any method of treatment (other than impermissible
dilution) to achieve the treatment standard.

C. What Treatment Standards Are We Proposing?

We find that there is significant structural similarity among many
of the constituents of concern, including those for which we have not
previously set technology-specific standards. The constituents of
concern either have been demonstrated to be treated effectively by the
BDAT technology to below the analytic detection limit, or are similar
enough to these constituents that it can be reasonably determined that
they would not be more difficult to treat via combustion or other
destructive procedures. Hence, we expect that all constituents of
concern for these wastes can be treated with equal effectiveness (i.e.,
destroyed or removed so as to be no longer detectable) by similar
methods of treatment. The obvious most effective treatment for
nonwastewater forms of these wastes is combustion. For wastewaters
derived from K181, a treatment train of wet air oxidation (WETOX) or
chemical oxidation (CHOXD) followed by carbon adsorption (CARBN), or
application of combustion (CMBST) is the BDAT for the constituents of
concern for which treatment standards have not previously been
developed.
We also assessed the potential of developing numerical standards
for those constituents with current technology-based treatment
standards and those constituents of concern in K181 that lack current
treatment requirements. Numerical treatment standards have been
promulgated for only nine of the organic constituents of concern.
Commenters to the July 23, 1999 listing proposal (64 FR 40192)
suggested that EPA establish numerical standards, because they allow
any treatment, other than impermissible dilution, to be used to comply
with the land disposal restrictions. We find that there is adequate
documentation in existing SW-846 methods 8270, 8315, and 8325 to
calculate numerical standards for all but benzaldehyde; 1,3-
phenylenediamine; 1,2-phenylenediamine; and 2,4-dimethylaniline. For
these constituents, with the exception of 1,2-phenylenediamine, we
propose to transfer the numerical standards of similar constituents as
the universal treatment standards.
For 1,2-phenylenediamine, we have found during past method
performance evaluations that it can be difficult to achieve reliable
recovery from aqueous matrixes and precise measurements. Therefore, for
this constituent we propose that wastewaters be treated by CMBST; or
CHOXD followed by BIODG or CARBN; or BIODG followed by CARBN, and all
nonwastewaters would be treated by CMBST. If data adequate for the
development of a numerical standard is presented in comments, the
Agency may promulgate a numerical standard as an alternative, or as the
treatment requirement.
If these numerical standards are shown in comments not to be
achievable or otherwise appropriate, we could adopt methods of
treatment as the exclusive treatment standard. Under this technology
only approach, all nonwastewaters identified as K181 would be treated
by CMBST, and all derived from wastewaters would be treated by either
WETOX or CHOXD, followed by CARBN or CMBST.
The proposed treatment standards are presented in the following
table.

Table VI-1.--Proposed Treatment Standards for Constituents in K181
----------------------------------------------------------------------------------------------------------------
Constituents of concern CAS No. Wastewater (mg/L) Nonwastewater (mg/kg)
----------------------------------------------------------------------------------------------------------------
Aniline............................. 65-53-3 0.81 *...................... 14 *
o-Anisidine (2-methoxyaniline)...... 90-04-0 0.010....................... 0.66
Azobenzene **....................... 103-33-3 0.010....................... 0.66
Benzaldehyde **..................... 100-52-7 0.065....................... 4.3
4-Chloroaniline..................... 106-47-8 0.46 *...................... 16 *
p-Cresidine......................... 120-71-8 0.010....................... 0.66
2,4-Dimethylaniline (2,4-xylidine).. 95-68-1 0.010....................... 0.66
1,2-Phenylenediamine................ 95-54-5 CMBST; or CHOXD fb (BIODG or CMBST
CARBN); or BIODG fb CARBN.
1,3-Phenylenediamine................ 108-45-2 0.010....................... 0.66
p-Toluidine **...................... 106-49-0 0.010....................... 0.66

[[Page 66209]]

Toluene-2,4-diamine................. 95-80-7 0.020....................... 1.30
----------------------------------------------------------------------------------------------------------------
* Existing Universal Treatment Standard. No change is proposed.
** Treatment standards would be proposed for this constituent if zero biodegradation is assumed. See section
IV.A.4.

D. What Changes to Existing Treatment Requirements Are Proposed?

We also propose to add the constituents in K181 with numerical
treatment standards to the Universal Treatment Standards (UTS) listed
at 40 CFR 268.48. This action would potentially add five chemicals with
the standards in Table VI-1 to the UTS if biodegradation rates are
assigned for all constituents based upon structural similarity, namely:
o-anisidine, p-cresidine, 2,4-dimethylaniline, 1,3-phenylenediamine,
and toluene-2,4-diamine. If biodegradation rates are assumed to be zero
for constituents that do not have a reported value, then there are
three additional constituents that may require promulgation of
universal treatment standards. The three are azobenzene, benzaldehyde,
and p-toluidine. As a result, characteristic wastes that also contain
these constituents will require additional treatment before disposal,
if constituent concentrations exceed the proposed levels.
We propose to amend the constituents of concern in F039 as
necessary to include the constituents identified in K181 not already
specified in F039 (the same constituents named above for the UTS). F039
applies to landfill leachates generated from multiple listed wastes in
lieu of the original waste codes. F039 wastes are subject to numerical
treatment standards equivalent to the universal treatment standards
listed at 40 CFR 268.48. Without this change in existing regulations,
F039 landfill leachates may not receive proper treatment for the
constituents of K181.
The proposed treatment standards reflect the performance of best
treatment technologies, and are not based on the listing levels of
concern derived from the risk assessment for dyes and/or pigments
wastes. In that risk assessment, our analysis focused on the plausible
management practices for only the dyes and pigments industries. As a
result, our models did not attempt to assess all possible pathways,
because the plausible management practice (disposal in a municipal
Subtitle D landfill) provides a certain level of control over some
potential release pathways. In addition, our assessment of potential
releases modeled engineered barriers, in the form of various types of
liner systems.
It is not appropriate to use the mass loading levels derived from
these risk assessments as levels at which threats to human health and
to the environment are minimized. The risk analysis does not address
all of the long-term uncertainties associated with land disposal of
these wastes. (See section 3004 (g)(5) and 55 FR 6640, 6642 (February
26, 1990).) Nor is it permissible to consider artificial liner systems,
or other engineered barriers, in assessing whether threats posed by
land disposal of a hazardous waste have been minimized. API v. EPA, 906
F. 2d 726, 735-36 (threats to human health and the environment must be
minimized before land disposal occurs); cf. S. Rep. 284, 98th Cong. 1st
Sess. at 15 (``Artificial barriers cannot provide the assurances
necessary to meet the standard,'' referring to the parallel no-
migration standard for determining if a method of land disposal is
protective without the need for pretreating the waste before land
disposal occurs).
Because there remain significant uncertainties as to what levels of
hazardous constituents in these wastes would minimize threats to human
health and to the environment posed by these wastes' land disposal, we
are choosing to develop treatment standards for these wastes based on
performance of the Best Demonstrated Available Technology for these
wastes. HWTC III, 886 F. 2d at 361-363 (accepting this approach). For
the same reason, we are finding that these technology-based treatment
standards are not more stringent than the risk-based levels at which we
could find that threats to human health and to the environment are
minimized.

E. Other LDR-Related Provisions

EPA has adopted special LDR treatment standards for debris
contaminated by hazardous waste. See Sec. 268.45. EPA is proposing
that these provisions would also apply to hazardous debris cross-
contaminated with K181. Debris contaminated with K181 would be required
to be treated prior to land disposal, using specific technologies from
one or more of the following families of debris treatment technologies:
extraction, destruction, or immobilization. If such debris is treated
by immobilization, it remains a hazardous waste and must be managed in
a hazardous waste facility. Residuals generated from the treatment of
debris contaminated with K181 would remain subject to the treatment
standards proposed today. (See 57 FR 37277, August 18, 1992, for
additional information on the applicability, scope, and content of the
hazardous debris provisions.)
Lastly, because land disposal also includes placement in injection
wells (40 CFR 268.2(c)) application of the land disposal restrictions
to K181 requires the modification of injection well requirements found
in 40 CFR part 148. We propose that K181 be prohibited from underground
injection. (See 40 CFR part 148.) Therefore, K181 wastes may not be
underground injected unless they have been treated in compliance with
the LDR treatment standards or are injected into a Class 1 well from
which it has been determined that there will be no migration of
hazardous constituents for as long as the wastes remain hazardous.

F. Is There Treatment and Management Capacity Available for These
Proposed Newly Identified Wastes?

1. What Is a Capacity Determination?
When EPA develops new hazardous waste LDR regulations, we must
determine whether adequate alternative treatment capacity exists
nationally to manage the waste and meet the new treatment standards.
The LDRs are effective when promulgated unless EPA grants a national
capacity variance from the otherwise-applicable date and establishes a
different date (not to exceed two years beyond the statutory deadline)
based on ``. . . the earliest date on which adequate alternative
treatment, recovery, or disposal capacity which protects human health
and the environment will be available'' (RCRA section 3004(h)(2)).
Our capacity analysis methodology focuses on the amount of waste
currently disposed on the land, which will require alternative or
additional treatment as a result of the LDRs. The quantities of wastes
that are not subject to LDRs, such as discharges regulated

[[Page 66210]]

under NPDES, discharges to a POTW, or treatment in a RCRA exempt tank,
are not included in the quantities requiring additional treatment as a
result of the LDRs. Also, land disposed wastes that do not require
alternative or additional treatment (i.e., those that are currently
treated to meet standards) are excluded from the required capacity
estimates. Land disposed wastes requiring alternative or additional
treatment or recovery capacity that is available onsite or within the
same company also are excluded from the required commercial capacity
estimates. The resulting estimates of required commercial capacity are
then compared to estimates of available commercial capacity. If
adequate commercial capacity exists, the waste is restricted from
further land disposal. If adequate capacity does not exist, EPA has the
authority to grant a national capacity variance.
In making the estimates described above, the volume of waste
requiring treatment depends on the current waste management practices
employed by the waste generators before this proposed regulation is
finalized and becomes effective. We collected data on waste management
practices for the affected facilities from publicly available sources
during the development of this proposed rule. However, we realize that
as the regulatory process proceeds, generators of these wastes may
decide to minimize or recycle their wastes or otherwise alter their
management practices. Thus, EPA will monitor changes and update data on
current management practices as these changes will affect the volume of
wastes ultimately requiring commercial treatment or recovery capacity.
The commercial hazardous waste treatment industry can change
rapidly. For example, national commercial treatment capacity changes as
new facilities come on-line or old facilities go off-line and as new
units and new technologies are added at existing facilities. The
available capacity at commercial facilities also changes as facilities
change their commercial status (e.g., changing from a fully commercial
to a limited commercial or ``captive''--company owned--facility). Thus,
EPA also continues to update and monitor changes in available
commercial treatment capacity.
We request available data on the industry-wide total annual
generation volumes of wastes affected by this proposed rule, including
K181 in wastewater and nonwastewater forms, soil or debris contaminated
with these wastes, the current and planned management practices for the
wastes, and waste mixtures. We also request data on the current
treatment or recovery capacity capable of treating these wastes,
facility and unit permit status related to treatment of the proposed
wastes and any plans that facilities may have to expand or reduce
existing capacity, or construct new capacity. Of particular interest to
us is available information related to factors that may limit the
availability of treatment technologies.
2. What Are the Capacity Analysis Results?
This preamble only provides a brief summary of the capacity
analysis performed to support this proposed regulation. For additional
and more detailed information, please refer to the ``Background
Document for Capacity Analysis for Land Disposal Restrictions: Newly
Identified Dye and Pigment Process Wastes (Proposed Rule), November
2003'' (``Capacity Background Document''), available in the RCRA docket
established for today's proposed rule.
For this capacity analysis, we examined data on waste
characteristics and management practices gathered for the purpose of
the dyes and pigments hazardous waste listing determination based on
the publicly available information. The data sources are described in
detail in section II.H of this preamble.
If K181-derived wastewaters are generated, there is adequate
wastewater treatment capacity existing for these wastes. As discussed
in section IV.C above, EPA is proposing to treat the wastewater form of
K181 by wet air oxidation or chemical oxidation followed by carbon
adsorption or applying combustion for the constituents of concern.
There is adequate wastewater treatment capacity available should the
need for treatment of the wastewater form of the waste arise. The
wastewater treatment capacity is detailed in the Capacity Background
Document. Therefore, we are proposing not to grant a national capacity
variance from LDR treatment standards for the wastewater form of K181.
We are proposing that LDRs become effective when the listing
determination becomes effective. In addition, we are not listing
wastewaters generated at these facilities, so there is no need for
additional treatment of wastewater from the production of dyes and/or
pigments (other than K181-derived wastewaters).
As described in section IV.C above, EPA is proposing to establish
numerical treatment standards or a method of treatment as the treatment
standards for the constituents of concern of the newly proposed waste.
We expect that the constituents of concern in the nonwastewater form of
the newly proposed waste are amenable to the treatment by combustion or
other destructive technologies. EPA estimates, at most, 69,000 metric
tons of nonwastewater forms of K181 that may require alternative
commercial treatment and be managed offsite at a commercial hazardous
waste treatment facility. Furthermore, EPA anticipates that much less
than 69,000 metric tons of the wastes may require combustion capacity
because not all of these wastes are expected to exceed the mass loading
limits, and of those wastes that do exceed the loading limits, they may
be managed in a Subtitle C combustion unit or may meet the proposed
conditional exemption for nonwastewaters that are managed in landfills
that meet or exceeds the design criteria in Sec. 258.40 or in a
Subtitle C landfill cell subject to either Sec. 264.301 or Sec.
265.301. We estimate that the commercially available sludge and solid
combustion capacity is approximately 0.6 million tons per year and
therefore sufficient to treat the newly proposed waste which might
newly require treatment. We also expect that adequate landfill capacity
exists for managing the residuals from treating this waste. Therefore,
we are proposing to not grant a national capacity variance from the LDR
treatment standards for the nonwastewater form of K181. We are
proposing that the LDRs become effective when the listing determination
becomes effective.
As discussed in section VI.D, we are also proposing to add the
constituents of concern in K181 with numerical standards to the
constituent lists for F039 and universal treatment standards (UTS). EPA
does not anticipate that waste volumes subject to the treatment
standards for F039 or characteristic wastes would increase because of
the addition of these organic constituents to F039 and the UTS lists.
Based on available data, waste generators already appear to be required
to comply with the treatment requirements for other organic
constituents in F039 and characteristic wastes. Therefore, additional
treatment due to the addition of the constituents to the F039 and UTS
lists may not be required. We also do not anticipate laboratory
analytical problems as a result of this addition. However, we solicit
comments regarding additional treatment needed, as well as the ability
and capacity of laboratories to analyze wastes for these contaminants.
For soil and debris contaminated with these wastes, we believe that
the vast

[[Page 66211]]

majority of contaminated soil and debris, if any, will be managed
onsite and therefore would not require substantial commercial treatment
capacity. Therefore, we are proposing to not grant a national capacity
variance for hazardous soil and debris contaminated with the newly
listed waste covered under this proposal. Based on the public
information used, there are no data showing mixed radioactive wastes or
underground injected wastes associated with the proposed listing. As a
result, we are also proposing to not grant a national capacity variance
for mixed radioactive waste (i.e., radioactive wastes mixed with K181)
or waste being injected underground.
The ultimate volume of waste estimated to require alternative or
additional commercial treatment may change if the final listing
determination changes; should this occur, we will revise the capacity
analysis accordingly. The actual quantity of waste requiring commercial
treatment may be smaller due to facility closures and changes in
product formulations which may not be subject to LDR treatment
standards. We recognize the batch process nature of this industry and
the speed at which facilities may change product formulations. We
solicit any updated or additional information pertinent to the national
capacity variance determinations for all forms of the newly proposed
waste. We also request comment on current and future management
practices and the volumes managed for these wastes.

VII. State Authority and Compliance

A. How Are States Authorized Under RCRA?

Under section 3006 of RCRA, EPA may authorize qualified states to
administer their own hazardous waste programs in lieu of the federal
program within the state. Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. The
standards and requirements for state authorization are found at 40 CFR
part 271.
Prior to enactment of the Hazardous and Solid Waste Amendments of
1984 (HSWA), a State with final RCRA authorization administered its
hazardous waste program entirely in lieu of EPA administering the
Federal program in that state. The Federal requirements no longer
applied in the authorized state, and EPA could not issue permits for
any facilities in that state, since only the state was authorized to
issue RCRA permits. When new, more stringent federal requirements were
promulgated, the state was obligated to enact equivalent authorities
within specified time frames. However, the new federal requirements did
not take effect in an authorized state until the state adopted the
federal requirements as state law.
In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which
was added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states. EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
including the issuance of permits, until the state is granted
authorization to do so. While states must still adopt HSWA related
provisions as state law to retain final authorization, EPA implements
the HSWA provisions in authorized states until the states do so.
Authorized states are required to modify their programs only when
EPA enacts Federal requirements that are more stringent or broader in
scope than existing Federal requirements. RCRA section 3009 allows the
states to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1). Therefore, authorized states may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous federal regulations.

B. How Would This Rule Affect State Authorization?

We are proposing today's rule pursuant to HSWA authority. The
listing of the new K-waste is promulgated pursuant to RCRA section
3001(e)(2), a HSWA provision. Therefore, we are adding this rule to
Table 1 in 40 CFR 271.1(j), which identifies the Federal program
requirements that are promulgated pursuant to HSWA and take effect in
all States, regardless of their authorization status. The land disposal
restrictions for these wastes are promulgated pursuant to RCRA section
3004(g) and (m), also HSWA provisions. Table 2 in 40 CFR 271.1(j) is
modified to indicate that these requirements are self-implementing.
States may apply for final authorization for the HSWA provisions in
40 CFR 271.1(j), as discussed below. Until the States receive
authorization for these more stringent HSWA provisions, EPA would
implement them. The procedures and schedule for final authorization of
State program modifications are described in 40 CFR 271.21.
Section 271.21(e)(2) of EPA's State authorization regulations (40
CFR part 271) requires that States with final authorization modify
their programs to reflect Federal program changes and submit the
modifications to EPA for approval. The deadline by which the States
would need to modify their programs to adopt this proposed regulation
is determined by the date of promulgation of a final rule in accordance
with Sec. 271.21(e)(2). Once EPA approves the modification, the State
requirements would become RCRA Subtitle C requirements.
States with authorized RCRA programs already may have regulations
similar to those in this proposed rule. These State regulations have
not been assessed against the Federal regulations proposed today to
determine whether they meet the tests for authorization. Thus, even
after promulgation of final rules, a State would not be authorized to
implement these regulations as RCRA requirements until State program
modifications are submitted to EPA and approved, pursuant to 40 CFR
271.21. Of course, States with existing regulations that are more
stringent than or broader in scope than current Federal regulations may
continue to administer and enforce their regulations as a matter of
State law. In implementing the HSWA requirements, EPA will work with
the States under agreements to avoid duplication of effort.

C. Who Would Need To Notify EPA That They Have a Hazardous Waste?

Under RCRA section 3010, the Administrator may require all persons
who handle hazardous wastes to notify EPA of their hazardous waste
management activities within 90 days after the wastes are identified or
listed as hazardous. This requirement may be applied even to those
generators, transporters, and treatment, storage, and disposal
facilities (TSDFs) that have previously notified EPA with respect to
the management of other hazardous wastes. The Agency is proposing to
waive this notification requirement for persons who handle wastes that
are covered by today's listings and have already (1) notified EPA that
they manage other hazardous wastes, and (2) received an EPA
identification number. However, any person who generates, transports,
treats, stores, or disposes of these wastes and has not previously
received an EPA identification number would need to obtain an
identification number pursuant to 40 CFR 262.12 to generate, transport,
treat, store, or

[[Page 66212]]

dispose of these hazardous wastes within 90 days after the effective
date.
Note that under this proposal, nonwastewaters would not become
newly listed K181 waste if the constituent mass loadings do not meet
the levels in Sec. 261.32(c)(1); the wastes would also not be listed
if the constituent mass loadings are below the less stringent levels in
Sec. 261.32(c)(2) and if the nonwastewaters are disposed in a landfill
that meets or exceeds the design criteria in Sec. 258.40 or in a
Subtitle C landfill cell subject to either Sec. 264.301 or Sec.
265.301. Persons who generate only wastes that meet these conditions
need not notify EPA or obtain an identification number.

D. What Would Generators and Transporters Have To Do?

Once a final rule is promulgated, persons that generate the newly
listed hazardous wastes may be required to obtain an EPA identification
number if they do not already have one (as discussed above). In order
to be able to generate or transport these wastes after the effective
date of this rule, generators of the wastes listed today would be
subject to the generator requirements set forth in 40 CFR part 262.
These requirements include standards for hazardous waste determination
(40 CFR 262.11), compliance with the manifest (40 CFR 262.20 to
262.23), pretransport procedures (40 CFR 262.30 to 262.34), generator
accumulation (40 CFR 262.34), record keeping and reporting (40 CFR
262.40 to 262.44), and import/export procedures (40 CFR 262.50 to
262.60). The generator accumulation provisions of 40 CFR 262.34 allow
generators to accumulate hazardous wastes without obtaining interim
status or a permit in units that are container storage units, tank
systems, or containment buildings. These existing regulations also
place a limit on the maximum amount of time that wastes can be
accumulated in these units. If, however, the wastes covered in today's
proposed rule are managed in units that are not tank systems,
containers, or containment buildings, then these units would be subject
to the permitting requirements of 40 CFR parts 264 and 265, and the
generator is required to obtain interim status and seek a permit (or
modify interim status or a permit, as appropriate).
Also, current regulations require that persons who transport newly
identified hazardous wastes to obtain an EPA identification number as
described above; such transporters will be subject to the transporter
requirements set forth in 40 CFR part 263.

E. Which Facilities Would Be Subject to Permitting?

1. Facilities Newly Subject to RCRA Permit Requirements
Facilities that treat, store, or dispose of wastes that are subject
to RCRA regulation for the first time by this proposed rule (that is,
facilities that have not previously received a permit pursuant to
section 3005 of RCRA and are not currently operating pursuant to
interim status), could be eligible for interim status (see section
3005(e)(1)(A)(ii) of RCRA). To obtain interim status based on
treatment, storage, or disposal of such newly identified wastes,
eligible facilities would be required to comply with 40 CFR 270.70(a)
and 270.10(e) by providing notice under section 3010 and submitting a
Part A permit application no later than 6 months after date of
publication in the Federal Register of the final rule. Such facilities
would be subject to regulation under 40 CFR part 265 pending final
administrative disposition of the permit application (e.g., until a
permit is issued).
In addition, under section 3005(e)(3) and 40 CFR 270.73(d), not
later than 6 months after date of publication of the final rule, land
disposal facilities newly qualifying for interim status under section
3005(e)(1)(A)(ii) would also need to submit a Part B permit application
and certify that the facility is in compliance with all applicable
groundwater monitoring and financial responsibility requirements. If
the facility fails to submit these certifications and a permit
application, then interim status would terminate on that date.
2. Existing Interim Status Facilities
Pursuant to 40 CFR 270.72(a)(1), all existing hazardous waste
management facilities (as defined in 40 CFR 270.2) that treat, store,
or dispose of the newly listed hazardous wastes and are currently
operating pursuant to interim status under section 3005(e) of RCRA,
would need to file an amended Part A permit application with EPA no
later than six months after the date of publication of a final rule. By
doing this, the facility could continue managing the newly listed
wastes pending final disposition of the permit application. If the
facility fails to file an amended Part A application by that date, the
facility would not receive interim status for management of the newly
listed hazardous wastes and may not manage those wastes until the
facility receives either a permit or a change in interim status
allowing such activity (40 CFR 270.1(b); 270.10(g)).
3. Permitted Facilities
Facilities that already have RCRA permits would need to request
permit modifications if they want to continue managing the newly listed
wastes (see 40 CFR 270.42(g)). This provision states that a permittee
may continue managing the newly listed wastes by following certain
requirements, including submitting a Class 1 permit modification
request by the date on which the waste or unit becomes subject to the
new regulatory requirements (i.e., the effective date of a final rule),
complying with the applicable standards of 40 CFR parts 265 and 266 and
submitting a Class 2 or 3 permit modification request within 180 days
of the effective date. Generally, a Class 2 modification is appropriate
if the newly listed wastes will be managed in existing permitted units
or in newly regulated tanks, container units or containment buildings
and will not require additional or different management practices than
those authorized in the permit.
A Class 2 modification requires the facility owner to provide
public notice of the modification request, a 60-day public comment
period, and an informal meeting between the owner and the public within
the 60-day period. The Class 2 process includes a ``default
provision,'' which provides that if the Agency does not reach a
decision within 120 days, the modification is automatically authorized
for 180 days. If the Agency does not reach a decision by the end of
that period, the modification is authorized for the life of the permit
(see 40 CFR 270.42(b)).
A Class 3 modification is generally appropriate if management of
the newly listed wastes requires additional or different management
practices than those authorized in the permit or if newly regulated
land-based units are involved. The initial public notification and
public meeting requirements are the same as for Class 2 modifications.
However, after the end of the 60-day public comment period, the Agency
will grant or deny the permit modification request according to the
more extensive procedures of 40 CFR part 124. There is no default
provision for Class 3 modifications (see 40 CFR 270.42(c)).
Under 40 CFR 270.42(g)(1)(v), for newly regulated land disposal
units, permitted facilities must certify that the facility is in
compliance with all applicable 40 CFR part 265 groundwater monitoring
and financial responsibility requirements no later than 6 months after
the date of publication of a final rule. If the facility fails to
submit these certifications, authority to manage the

[[Page 66213]]

newly listed wastes under 40 CFR 270.42(g) will terminate on that date.
For states which have not yet picked up the permit modification
tables of 40 CFR 270.42, ``major'' and ``minor'' permit modifications
should be applied as appropriate to the permit modification request.
4. Units
Units in which the newly listed hazardous wastes are generated or
managed would be subject to all applicable requirements of 40 CFR part
264 for permitted facilities or 40 CFR part 265 for interim status
facilities, unless the unit is excluded from such permitting by other
provisions, such as the wastewater treatment tank exclusions (40 CFR
264.1(g)(6) and 265.1(c)(10)) and the product storage tank exclusion
(40 CFR 261.4(c)). Examples of units to which these exclusions could
never apply include landfills, waste piles, incinerators, and any other
miscellaneous units in which these wastes may be generated or managed.
However, as noted above, under this proposal nonwastewaters would not
become newly listed K181 waste if the constituent loadings do not meet
the levels in Sec. 261.32(c)(1); the wastes would also not be listed
if the constituent mass loadings are below the levels in Sec.
261.32(c)(2) and if the nonwastewaters are disposed in a landfill that
meets or exceeds the design criteria in Sec. 258.40 or in a Subtitle C
landfill cell subject either to Sec. 264.301 or Sec. 265.301.
5. Closure
All units in which the newly listed hazardous wastes are treated,
stored, or disposed after the effective date of this regulation that
are not excluded from the requirements of 40 CFR parts 264 and 265
would be subject to both the general closure and post-closure
requirements of subpart G of 40 CFR parts 264 and 265 and the unit-
specific closure requirements set forth in the applicable unit
technical standards subpart of 40 CFR part 264 or 265 (e.g., Subpart N
for landfill units). In addition, EPA promulgated a final rule that
allows, under limited circumstances, regulated landfills or surface
impoundments to cease managing hazardous waste, but to delay Subtitle C
closure to allow the unit to continue to manage nonhazardous waste for
a period of time prior to closure of the unit (see 54 FR 33376, August
14, 1989). Units for which closure is delayed continue to be subject to
all applicable 40 CFR parts 264 and 265 requirements. Dates and
procedures for submittal of necessary demonstrations, permit
applications, and revised applications are detailed in 40 CFR
264.113(c) through (e) and 265.113(c) through (e).

VIII. CERCLA Designation and Reportable Quantities

A. What Is the Relationship Between RCRA and CERCLA?

CERCLA (Comprehensive Environmental Response, Compensation, and
Liability Act of 1980) defines the term ``hazardous substance'' to
include RCRA listed and characteristic hazardous wastes. When EPA adds
a hazardous waste under RCRA, the Agency also will add the waste to its
list of CERCLA hazardous substances. EPA establishes a reportable
quantity, or RQ, for each CERCLA hazardous substance. EPA provides a
list of the CERCLA hazardous substances along with their RQs in Table
302.4 at 40 CFR 302.4. If you are the person in charge of a vessel or
facility that releases a CERCLA hazardous substance in an amount that
equals or exceeds its RQ, then you must report that release to the
National Response Center (NRC) pursuant to CERCLA section 103. You also
may have to notify State and local authorities.

B. How Does EPA Determine Reportable Quantities?

Under CERCLA, all new hazardous substances automatically have a
statutory one-pound RQ. EPA adjusts the RQ of a newly added hazardous
substance based on an evaluation of its intrinsic physical, chemical,
and toxic properties. These intrinsic properties called ``primary
criteria'' are aquatic toxicity, mammalian toxicity (oral, dermal, and
inhalation), ignitability, reactivity, chronic toxicity, and potential
carcinogenicity. EPA evaluates the data for a hazardous substance for
each primary criterion. To adjust the RQs, EPA ranks each criterion on
a scale that corresponds to an RQ value of 1, 10, 100, 1,000, or 5,000
pounds. For each criterion, EPA establishes a tentative RQ. A hazardous
substance may receive several tentative RQ values based on its
particular intrinsic properties. The lowest of the tentative RQs
becomes the ``primary criteria RQ'' for that substance.
After the primary criteria RQs are assigned, EPA further evaluates
substances for their susceptibility to certain degradative processes.
These are secondary adjustment criteria. The natural degradative
processes are biodegradation, hydrolysis, and photolysis (BHP). If a
hazardous substance, when released into the environment, degrades
rapidly to a less hazardous form by one or more of the BHP processes,
EPA generally raises its RQ (as determined by the primary RQ adjustment
criteria) by one level. Conversely, if a hazardous substance degrades
to a more hazardous product after its release, EPA assigns an RQ to the
original substance equal to the RQ for the more hazardous substance.
The standard methodology used to adjust the RQs for RCRA hazardous
waste streams differs from the methodology applied to individual
hazardous substances. The procedure for assigning RQs to RCRA waste
streams is based on the results of an analysis of the hazardous
constituents of the waste streams. The constituents of each RCRA
hazardous waste stream are identified in 40 CFR part 261, Appendix VII.
EPA first determines an RQ for each hazardous constituent within the
waste stream using the methodology described above. The lowest RQ value
of these constituents becomes the adjusted RQ for the waste stream.
When there are hazardous constituents of a RCRA waste stream that are
not CERCLA hazardous substances, the Agency develops an RQ, called a
``reference RQ,'' for these constituents in order to assign an
appropriate RQ to the waste stream (see 48 FR 23565, May 25, 1983). In
other words, the Agency derives the RQ for waste streams based on the
lowest RQ of all the hazardous constituents, regardless of whether they
are CERCLA hazardous substances.

C. EPA Will Assign an RQ of One-Pound for the Waste

In today's proposed rule, EPA will assign a one-pound RQ to the
K181 waste. The RQ for each constituent contained in the proposed waste
is presented in the table below.

Table VIII-1.--RQs for Constituents Identified in K181 Waste
------------------------------------------------------------------------
Constituent RQ
Constituents in K181 waste stream (kg) (40 CFR
302.4)
------------------------------------------------------------------------
Aniline................................................. 5000 (2270)
o-Anisidine............................................. 100 (45.4)
4-Chloroaniline......................................... 1000 (454)
p-Cresidine............................................. * 1 (0.454)
2,4-Dimethylaniline..................................... * 1 (0.454)
Toluene-2,4-diamine..................................... 10 (4.54)
1,2-Phenylenediamine.................................... * 1 (0.454)
1,3-Phenylenediamine.................................... * 1 (0.454)
------------------------------------------------------------------------
* RQ of 1 pound assigned to this constituent because we have not yet
developed a ``waste constituent RQ'' for this substance.

We are not adjusting the RQ for K181 at this time because we have
not yet developed a ``waste constituent RQ'' for

[[Page 66214]]

the following constituents of concern in this waste: p-cresidine; 2,4-
dimethylaniline; 1,2-phenylenediamine; and 1,3-phenylenediamine.

D. How Does a Mass Loading Limit Hazardous Waste Listing Approach
Relate to My Reporting Obligations Under CERCLA? When Would I Need To
Report a Release of These Wastes Under CERCLA?

Today's proposed hazardous waste listings are based on the mass
loadings of the hazardous constituents in the wastes. An RQ of one-
pound is assigned for the waste based on the lowest RQ of the hazardous
constituents in the waste. Notification is required under CERCLA when a
waste meeting the listing description and threshold for that hazardous
waste is released into the environment in a quantity that equals or
exceeds the RQ for the waste.
For CERCLA reporting purposes, the Clean Water Act mixture rule (40
CFR 302.6) may be adapted to apply to releases of this waste when the
quantity (or mass limit) of all of the K181 hazardous constituents in
the waste are known and the waste meets the K181 listing description
(i.e., any of the K181 mass loading levels are met or exceeded). In
such a case, notification is required where an amount of waste is
released that contains an RQ or more of any hazardous substance
contained in the waste. When the quantity (or mass limit) of one or
more of the K181 hazardous constituents is not known, notification is
required when the quantity of K181 waste released equals or exceeds the
RQ for the waste stream.

E. How Would I Report a Release?

To report a release of proposed K181 (or any other CERCLA hazardous
substance) that equals or exceeds its RQ, you must immediately notify
the National Response Center (NRC) as soon as you have knowledge of
that release. The toll-free telephone number of the NRC is 1-800-424-
8802; in the Washington, DC, metropolitan area, the number is (202)
267-2675.
You may also need to notify State and local authorities. The
Emergency Planning and Community Right-to-Know Act (EPCRA) requires
that owners and operators of certain facilities report releases of
CERCLA hazardous substances and EPCRA extremely hazardous substances
(see list in 40 CFR Part 355, Appendix A) to State and local
authorities. After the release of an RQ or more of any of those
substances, you must report immediately to the community emergency
coordinator of the local emergency planning committee for any area
likely to be affected by the release, and to the State emergency
response commission of any State likely to be affected by the release.

F. What Is the Statutory Authority for This Program?

Section 101(14) of CERCLA defines the term hazardous substance by
referring to substances listed under several other environmental
statutes, as well as those substances that EPA designates as hazardous
under CERCLA section 102(a). In particular, CERCLA section 101(14)(C)
defines the term hazardous substance to include ``any hazardous waste
having the characteristics identified under or listed pursuant to
section 3001 of the Solid Waste Disposal Act.'' CERCLA section 102(a)
gives EPA authority to establish RQs for CERCLA hazardous substances.
CERCLA section 103(a) requires any person in charge of a vessel or
facility that releases a CERCLA hazardous substance in an amount equal
to or greater than its RQ to report the release immediately to the
federal government. EPCRA section 304 requires owners or operators of
certain facilities to report releases of CERCLA hazardous substances
and EPCRA extremely hazardous substances to State and local
authorities.

G. How Can I Influence EPA's Thinking on Regulating K181 Under CERCLA?

In developing this proposal, EPA tried to address the concerns of
all our stakeholders. Your comments will help us to improve this
proposal. We invite you to provide your views on this proposal and how
it may affect you. We also are interested in receiving any comments
that you have on the information provided in Table VIII-1, including
the hazardous constituents identified for proposed K181.

IX. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

Under Executive Order 12866 (58 FR 51735 (October 4, 1993)) the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to 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, 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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action'' under
point number four above. This rule, as proposed may raise novel legal
or policy issues due to the unique mass loading-based approach used in
development of the risk assessment. As such, this action was submitted
to OMB for review. Any substantive changes to this Preamble, the
regulatory language, or supporting documentation made in response to
OMB review are documented in the public record.
Under the terms of Executive Order 12866, we have determined that
the annual economic effects of this proposed rule are less than $100
million. Furthermore, this proposed rule is not expected to 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. The
annualized benefits associated with today's rule have not been
monetized but are believe to be less than $100 million.
The information presented in this Section is derived from the
following document: ``Economic Assessment for the Proposed Loadings-
Based Listing of Non-Wastewaters from the Production of Selected
Organic Dyes, Pigments, and Food, Drug, and Cosmetic Colorants Economic
Assessment,'' November 2003. This document is available in the docket
established for today's action. EPA seeks public comment on all aspects
of this document, including both the magnitude and timing of the costs
and benefits.
1. Background
This proposal presents a mass loadings-based listing approach.
Historically, the Agency's listing program has captured entire
categories of wastes posing unacceptable risks to human health and the
environment. Today's approach proposes listing only those wastes from
any single facility that contain specific constituents in quantities
above acceptable risk levels. This is a new and unique hazardous

[[Page 66215]]

waste listings approach for the Office of Solid Waste.
We have prepared two economic support documents for this proposed
action. These are: ``Economic Assessment for the Proposed Loadings-
Based Listing of Non-Wastewaters from the Production of Selected
Organic Dyes, Pigments, and Food, Drug, and Cosmetic Colorants,'' and,
``Regulatory Flexibility Screening Analysis for the Proposed Loadings-
Based Listing of Non-Wastewaters from the Production of Selected
Organic Dyes, Pigments, and Food, Drug, and Cosmetic Colorants.'' The
Economic Assessment focuses primarily on compliance costs to the
regulated community, industry economic impacts, and a qualitative
benefits discussion. Also covered are findings related to children's
health, unfunded mandates, regulatory takings, federalism, tribalism,
energy effects, and environmental justice. The Regulatory Flexibility
Screening Analysis (RFSA) examines impacts to small entities that may
result from this action, as proposed. A summary of findings from this
Economic Assessment and the RFSA is presented below. The complete
Economic Assessment and RFSA documents are available for public review
and comment. These documents are located in the RCRA docket established
for this action.
2. Need for the Proposed Rule
The Agency has determined that selected constituents found in
certain wastes generated by organic dye, pigment, and food, drug, and
cosmetic (FD&C) colorant manufacturers may pose unacceptable risks to
human health and the environment when improperly disposed in quantities
above specified mass loading levels. We believe that the market and
other private sector institutions have failed to adequately address
pollution issues associated with these wastes.
In most cases of environmentally related market failure, private
industry costs of production do not fully reflect the pollution costs
to human health and the environment. This may occur when individuals
not responsible for the pollution bear the costs in human health and
ecological damages. Environmental economists refer to this situation as
a negative environmental externality. If negatively impacted
individuals are economically, politically, and/or culturally weaker
than the polluter, insufficient incentives are likely to exist for
polluters to incur the additional costs necessary for implementation of
appropriate pollution control measures. Furthermore, weaker parties
harmed by the pollution are not likely to obtain compensation from the
polluter due to the high transaction costs, property rights
limitations, and the difficulty these citizens may have in establishing
a causal relationship between the damage incurred and activity at the
polluting facility.
In addition to market failures, we believe that existing State
programs designed to protect human health and the environment from
unacceptable risks associated with these wastes have resulted in
inconsistent protections. Individual State programs often result in a
patchwork of inconsistent programs that fail to ensure uniform
nationwide protection. Furthermore, variability among State programs
covering the management of many wastes tends to reward manufacturers in
some states while penalizing manufacturers in other states.
Finally, today's rule implements mandates specifically and
explicitly set forth by the U.S. Congress without the exercise of any
policy discretion by EPA. This action is proposed under the authority
of sections 3001 (b)(1), and 3001(e)(2) of the Hazardous and Solid
Waste Amendments (HSWA) of 1984. These sections direct EPA to make a
hazardous waste listing determination for wastes from the production of
``dyes and pigments.''
We believe this proposed rule is necessary, as required under RCRA,
in order to sufficiently minimize risk to human health and the
environment. We further believe that federal government intervention is
necessary as the most efficient means to correct for market failures
resulting from pollution caused by these wastes. The proposed rule will
effectively internalize much of the costs associated with the existing
negative externalities. Furthermore, while the Agency is sensitive to
Federalism issues, we believe this proposal will help ensure consistent
nationwide protection of human health and the environment from
potentially inadequate disposal of these wastes, while, at the same
time, establishing a more level economic playing field for all affected
manufacturers.
3. Consideration of Non-Regulatory Alternatives
Executive Order 12866 recognizes and emphasizes the need for
comprehensive, high quality analytical support for all economically
significant regulatory actions (as defined under Section 3(f)(1) of EO
12866). While not economically significant, we have completed an
Economic Assessment for this proposed action, as discussed above. We
have also considered non-regulatory alternatives to this proposed rule.
Section 1(b)(3) of the Executive Order instructs Executive Branch
Agencies to consider and assess available alternatives to direct
regulation prior to making a determination for regulation. This
regulatory determination assessment should be considered, ``to the
extent permitted by law, and where applicable.'' The ultimate purpose
of the regulatory determination assessment is to ensure that the most
efficient tool, regulation, or other type of action is applied in
meeting the targeted statutory objective(s).
We are currently subject to both a statutory mandate and a Consent
Decree requiring a listing determination for specific dye, pigment, and
FD&C production wastes. Because of this legal action, we are not at
liberty to address this pollution problem through non-regulatory
approaches (unless of course, we determine that these dyes and/or
pigments wastes do not warrant listing as hazardous wastes). However,
in the spirit of the Executive Order, we have contemplated reasonably
feasible non-regulatory alternatives.
Reasonably feasible alternatives to regulation may include diverse
tools such as market-based incentives, education program(s), voluntary
waste minimization/pollution prevention programs, and targeted
negotiated agreements. A non-regulatory approach, such as educational
outreach programs would be largely ineffective because the people who
are made aware of the potential health risks (e.g., those people living
near landfills where these wastes are disposed) have limited ability to
reduce exposure without incurring significant costs. While we believe
that our mass loadings-based approach may stimulate affected
manufacturers to improve waste minimization activities, we recognize
that various waste minimization and pollution prevention procedures are
currently in place. These procedures, however, may be further
stimulated in response to our mass loadings-based approach, thereby
helping to reduce the toxic loadings from the wastes of concern. Other
programs such as market-based incentives or negotiated agreements would
be overly difficult, costly, and cumbersome to implement and monitor
due to the quantities of waste involved and generation patterns of
these wastes. However, we are open to stakeholder comments on non-
regulatory alternatives that, when applied in conjunction with a
regulatory option, may help ensure cost-efficient protection of human
health and the environment.

[[Page 66216]]

4. Evaluation of Regulatory Options
We considered the proposed regulatory approach and two primary
regulatory options for management of the waste streams examined in this
assessment. These were: the proposed mass loadings-based approach
(combined with a contingent management approach), a no list status quo
option, and the standard listing or traditional approach. The no-list
option would result in manufacturers not incurring any incremental
management and/or administrative costs under RCRA. This option,
however, may result in affected facilities facing future human health
and environmental liabilities for groundwater or other damages. In
addition, those exposed to the targeted contaminants above the loading
levels of concern may continue to suffer adverse health and welfare
impacts. The traditional listing option would require that all
manufacturers generating any waste meeting a categorical listing
description comply with RCRA Subtitle C requirements. Under this
option, the entire quantity of the waste of concern would be defined as
hazardous, regardless of any mass loadings-based determination. Most of
the affected manufacturers would incur waste management and
administrative procedure costs incremental to current baseline
practices. Our mass loadings-based (with contingent management)
approach, as proposed, requires affected manufacturers to determine
whether or not their wastes contain the regulated constituents, and, if
such constituents are generated in quantities of concern. Wastes with
constituent levels exceeding the primary set of thresholds proposed for
these wastes may be exempted from the listing if they show that their
wastes do not contain constituent loadings above the Sec. 261.32(c)(2)
listing levels and their wastes will be disposed of in a landfill
subject to the design requirements in 40 CFR 258.40 or in a Subtitle C
landfill cell subject to either Sec. 264.301 or Sec. 265.301. Only
the incremental quantity above the annual mass loadings limit is
affected. The affected manufacturer is not expected to incur any
incremental costs if the waste does not contain constituents of concern
or meet the applicable mass loading threshold. Furthermore, even if the
wastes exceed the threshold mass loadings, the contingent management
aspect of the proposed listing allows wastes to be handled as
nonhazardous, provided the waste is disposed in a landfill that meets
or exceeds the Sec. 258.40 design standards or in a Subtitle C
landfill cell subject to either Sec. 264.301 or Sec. 265.301, and if
the conditional mass loading limit is not met for toluene-2,4-diamine.
Five out of the eight constituents of concern do not have UTS
levels or LDR standards. The establishment of UTS levels and LDR
standards for these constituents may result in sampling/analysis and
treatment costs to industries beyond the manufacturers generating K181.
We have examined these potential cost impacts under two scenarios: no
listing--status quo, and UTS/LDR standards for these constituents.
Finally, today's action, as proposed, may also impact Subtitle D
landfills who have previously received the newly listed dye, pigment,
perylene and FD&C wastes. Leachate collected from landfills that
previously received these wastes may be considered hazardous if such
waste is determined to have met the hazardous waste definition at the
time of disposal, and the leachate generated from these landfills
contains the K181 constituents. We considered two regulatory options
for these landfills: the no-list option, and, a Clean Water Act
temporary deferral option (Agency preferred).
5. Assessment of Costs, Economic Impacts, and Benefits
Today's proposed action is projected to result in incremental
compliance costs to selected organic dye, pigment, and FD&C
manufacturers subject to the requirements of this rule. In most cases,
these manufacturers may face no more than increased analytical and
waste disposal costs. Non dyes and/or pigments manufacturers may be
impacted by today's action if they generate wastes containing
constituents that receive new LDR standards and are newly added to
Appendix VIII. There may also be cost impacts to Subtitle D landfill
operators if they would need to install tanks and/or piping systems in
order to take advantage of the proposed temporary deferral under the
Clean Water Act.
a. Introduction and Scope of This Section
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. The Economic Assessment
conducted in support of today's proposed rule examines both costs and
qualitative benefits in an effort to assess the overall net change in
social welfare. The primary focus of the Economic Assessment document
is on compliance costs and economic impacts. In this section, we
summarize our analytical methodology and findings for the dyes and
pigments production industries. We also briefly review our findings
relative to impacts on other industries and potential impacts on
landfill operators. General benefits anticipated from the rule, as
proposed, are examined in a qualitative format. The information
presented here is derived from the Economic Assessment. This document
is available in the docket established for today's action. Interested
readers are encouraged to read and comment on the data, methodology,
findings, and limitations presented in this document.
b. Industry Profile
This proposed listing action affects the Synthetic Organic Dye and
Pigment Manufacturing industries. These industries are identified under
the Standard Identification Classification (SIC) as 2865, and under the
North American Industrial Classification System (NAICS) as 325132. Our
review of publically available data, combined with comments from the
dyes and/or pigments industry associations has identified a total of 37
facilities that may be subject to the proposed listing. Of this total,
twenty are pigment producers, eighteen are dye producers, and six
produce FD&C products. Six of the facilities produce both dyes and
pigments and one facility produces all three. The 37 facilities are
operated by 29 different companies, fifteen of which are defined as
``small businesses'' under the Small Business Administration size
standards.
The World market value for all organic dyes and pigments is
estimated at $14 billion for 2003, with the U.S. market representing
about 20 to 24 percent of this total. The U.S. market for all organic
dyes and/or pigments products generating wastes of concern represents
approximately 60 to 65 percent of the total market. The U.S. market for
organic dyes and pigments is forecast to grow by about 3 percent per
year through 2005.
Increased imports, pricing pressures, and rising costs are forcing
some U.S. based organic dyes and/or pigments manufacturers to
discontinue or modify production. Other manufacturers appear to be
switching from onsite manufacturers to importers and/or formulators.
Mergers and consolidations have been the general trend over the past
ten years for many U.S. based manufacturers. However, recent years have
also seen an increase in the number of small, low-cost entrepreneurial
manufacturers, finishers and formulators who have been able to carve
out market shares which were once held by the major companies. U.S.
owned dye companies supply

[[Page 66217]]

approximately 25 percent of the total U.S. dye market, while European-
owned manufacturers hold the remaining 75 percent. Pigment production
ownership is similarly structured.
c. Analytical Methodology
Our first step in the development of the cost and economic impacts
analysis was the preparation of an industry profile (briefly discussed
above). This profile established the potentially regulated universe,
market structure, gross revenues, and estimated value of affected
production. We then established baseline conditions for the producers
of concern. This included an assessment of waste quantities generated,
management practices, and unit costs. Compliance management practices
and unit costs were developed next. Compliance costs include
implementation costs (waste sampling, and analysis, plus recordkeeping
and reporting, if any), transport costs, and compliant treatment and/or
disposal costs, as appropriate. Baseline costs less total costs of rule
compliance were calculated to determine incremental costs of compliance
and economic impacts. All data were derived from publically available
government and industry sources. No confidential business information
(CBI) was used in the preparation of this analysis.
d. Affected Waste Quantities
This rule proposes a mass loadings-based listing for selected
organic dye, pigment, and FD&C production nonwastewaters, to be
identified as K181, if they meet or exceed either of two mass-based
constituent thresholds. Non-wastewater quantities were estimated for
the 37 facilities potentially subject to the rule requirements.
Wastewater quantities were first estimated in order to derive
wastewater treatment sludge quantities. Annual wastewater generation
was estimated for the 37 facilities based on several sources. Facility
specific information was available for eight direct dischargers and
five indirect dischargers. Wastewater flow rates were estimated for the
remaining 24 indirect dischargers based on estimated dyes and/or
pigments production and wastewater flow data derived from a 1987 U.S.
EPA Office of Water guidance document.\62\
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\62\ U.S. EPA. October 1987. ``Development Document for Effluent
Limitations Guidelines, New Source Performance Standards, and
Pretreatment Standards for the Organic Chemicals and the Plastics
and Synthetic Fibers Point Source Category Volume I.'' Industrial
Technology Division, Office of Water Regulations and Standards.
---------------------------------------------------------------------------

We developed a log normal distribution of wastewater quantities
from the statistics available in the above referenced document. A log-
normal distribution is widely used under the following conditions:
values are positively skewed with most of the values near the lower
limit, the variable can increase without limits, but cannot fall below
zero; and where the coefficient of variability (the ratio of the
standard deviation to the mean) is greater than 30 percent. The
wastewater flow statistics met these criteria. The coefficient of
variability for the wastewater flow data was 453 percent.We used a
commercially available software program to develop a distribution curve
for the wastewater data. This program used a Monte Carlo technique to
create a distribution of outcomes over thousands of iterations (50,000
in this case). From the distribution created by this program, the
wastewater quantities were determined for every fifth percentile. Based
on the production revenue data obtained for each facility, a
corresponding production revenue percentile was assigned to each of the
indirect dischargers. It was assumed that the production revenue
directly correlated with the quantity of wastewater generated. For
example, if a facility's product production revenue was at the 90th
percentile level, it will generate wastewater at the 90th percentile
level as well.
Annual wastewater treatment sludge generation rates were estimated
for the 37 facilities based on two sources. Facility specific
information was available for one facility who reported using a reverse
osmosis wastewater treatment system. The wastewater treatment sludge
generation rate for one other facility who reported using reverse
osmosis, was estimated based on the calculated generation ratio.
Wastewater treatment sludge generation rates for the remaining 35
facilities were based on total suspended solids (TSS) data from the
1987 Effluent Guidelines report. The total quantity of potentially
impacted solid waste generated annually from the 37 facilities is
estimated to range from 44,000 to 69,000 metric tons.
Other non-liquid wastes, in addition to wastewater treatment
sludges, are expected to be impacted by this rule. These include: spent
catalysts, spent adsorbent, equipment cleaning sludge, product
standardization filter cake, and dust collector filter fines. The
quantity of solids generated by these waste streams are assumed to be
very minor. Furthermore, some of these wastes may be included in the
wastewater treatment sludge estimates. No publicly available
information regarding the actual generation rates of these wastes
within the dyes and/or pigments industry was found.
e. Baseline Waste Management Procedures and Unit Costs
Baseline waste management methods were derived through a review of
industry and trade group comments, the 1999 TRI Report, and general
public sources (including internet sources).
Baseline management practices for the wastes of concern include
sludge dewatering for handling and disposal purposes (based on economic
feasibility), then disposal in an unregulated clay-lined or unlined
landfill, Subtitle D landfill, or a Subtitle C landfill (bulk or super
sack). Three facilities with available site-specific information
pertaining to sludge management methods have been identified. Two of
these facilities report offsite Subtitle D landfill, while one reported
onsite Subtitle C incineration followed by onsite Subtitle C landfill.
The remaining facilities are assumed to manage sludge offsite in
unregulated clay-lined landfills. This assumption will result in an
overestimation of compliance costs if facilities are currently
disposing of their wastes in composite lined landfills meeting Part 258
requirements.
Costs for landfill disposal were developed from the Remedial Action
Cost Engineering and Requirements (RACER) cost estimating software, and
the March 2000 Remediation Market Report Published by Chartwell. Costs
in RACER are based on the 2002 Environmental Cost Handling Options and
Solutions (ECHOS) cost database. The RACER disposal cost for hazardous
and nonhazardous wastes is presented as a 30 city average of major
cities across the United States. Chartwell reports the average costs of
Subtitle D commercial landfill by state. For the purposes of this
analysis, the state averages were averaged for a national average cost
of disposal. All costs were inflated to 2003 dollars for this estimate
using the Consumer Price Index. Disposal of solid waste in unregulated
unlined landfills was estimated using the Subtitle D landfill disposal
unit cost. Fifty percent of the Subtitle D landfill cost was used as a
proxy for unregulated clay-lined landfill disposal costs. Unit costs
are as follows: Subtitle D Landfill--$42.60/ton, Unregulated clay-lined
landfill--$21.30/ton.
Costs for commercial incineration were developed from RACER and the
Hazardous Waste Resource Center's ``January 2002 Incinerator and
Landfill

[[Page 66218]]

Cost Data'' survey \63\ (HWRC). The HWRC data present the results of a
survey of the Environmental Technology Council (ETC). All costs were
inflated to 2003 dollars for this estimate using the Consumer Price
Index. Incineration costs for shipment quantities less than ten tons
were estimated using jumbo sack disposal costs and 55-gallon drum
disposal costs for dry sludges/solids and pumpable sludges,
respectively. Costs for small quantities of non-pumpable sludge was
estimated using a 30 percent markup over the bulk incineration unit
cost to account for additional handling costs. The markup for small
quantities was approximated using the unit cost increase between jumbo
sack and bulk Subtitle C landfill (approximately 37 percent).
---------------------------------------------------------------------------

\63\ Hazardous Waste Resource Center http://www.etc.org/costsurvey6.cfm
.
---------------------------------------------------------------------------

Onsite incineration (rotary kiln) costs were estimated from several
workbook methodologies.^{64 65} Costs were inflated to 2003
dollars using the Chemical Engineering Plant Cost Index for capital
costs and the Consumer Price Index for O&M costs.
---------------------------------------------------------------------------

\64\ Vogel, Gregory A., MITRE Corporation, ``The Estimation of
Hazardous Waste Incineration Costs,'' sponsored by U.S. EPA,
January, 1983.
\65\ K. Lim, R. DeRosier, R. Larkin, and R. McCormick, Acurex
Corporation, Energy & Environmental Division, ``Retrofit Cost
Relationships for Hazardous Waste Incineration,'' prepared for the
U.S. EPA, Office of Research and Development, Industrial
Environmental Research Laboratory, Incineration Research Branch,
January, 1984.
---------------------------------------------------------------------------

Incineration cost estimates are as follows: Onsite Rotary Kiln
Incineration of non-pumpable sludge: 147.2 * (tons) + $927,503, Offsite
Bulk Incineration of non-pumpable Sludges: $560.14\ton, Offsite Bulk
Incineration of pumpable Sludge: $1,033.2/ton, Offsite Small Quantity
Incineration of non-pumpable Sludges: $728.2/ton, and Offsite Bulk
Incineration of pumpable sludge (drummed): $1,947.5/ton.
f. Compliance Waste Management Procedures and Unit Costs
Compliance with the proposed rule may include one or more of the
following incremental cost elements: alternative waste management
procedures, additional waste sampling and analysis requirements,
alternative waste transport procedures and patterns, manifest
requirements, RCRA Part B permit requirements, administrative
requirements, and corrective action requirements. Compliance with the
waste management procedures for affected sludge quantities may be
disposal in a composite lined Part 258 or equivalent Subtitle D
landfill, or hazardous waste incineration, depending upon option
analyzed. Unit costs for these procedures are identified above.
The annual cost for sampling and analysis of non-aqueous waste
streams is estimated to range from $10,509 to $10,858.\66\ This
estimate includes costs for sample collection, development of
procedure, feasibility studies, five annual samples of each analysis
for mass loading determination, and 15 samples for characterization of
the wastes. Feasibility studies, procedure development, and
characterization are annualized over five years at a 7 percent rate for
borrowing capital (0.24389). A feasibility study is assumed for all
CoCs without a prescribed method in the EPA document SW-846 at an
estimated cost of $1,559. Four of the eight CoCs do not have standard
methods listed in SW-846. Procedure development is required for these
CoCs. Procedure development consists of performing the analysis
multiple times (to develop calibration curves, identify spike and
dilution rates, etc.). Three laboratories are assumed to develop
methods and procedures for analysis of constituents without methods and
procedures already established. Costs incurred by the laboratories are
divided across all 37 generating facilities.
---------------------------------------------------------------------------

\66\ See ``Economic Assessment for the Proposed Loadings-Based
Listing of Non-Wastewaters from the Production of Selected Organic
Dyes, Pigments, and Food, Drug, and Cosmetic Colorants.''
---------------------------------------------------------------------------

Hazardous waste shipments are tracked through the use of a
hazardous waste manifest which accompanies each waste shipment.
Manifesting costs were obtained from the ``Hazardous Waste Manifest
Cost Benefit Analysis,'' prepared by the Logistics Management Institute
in October 2000. Costs were inflated to 2003 dollars using the Consumer
Price Index. An average cost of $122 (2003 dollars) per manifest was
assumed to be incurred by any generator shipping hazardous waste. The
transporter and generator costs were combined to estimate a total
manifesting cost per shipment of $239. Costs for shipping papers for
nonhazardous wastes are also estimated. These include, costs to
prepare, carry, and retain shipping papers. These costs were derived
from the ``Hazardous Waste Manifest Cost Benefit Analysis.'' Total
costs are estimated at $90.40 per shipment for the transporter and
generator, combined. This covers costs to prepare, carry and retain all
nonhazardous shipping papers. Cost for disposal of wastes in
unregulated or Subtitle D landfills include costs for shipping papers.
All other methods of offsite disposal include costs for hazardous waste
manifest.
Hazardous waste transportation costs (excluding manifesting costs)
were estimated based on van trailer (small quantity) and roll-off bin
(bulk) trucking unit costs reported in RACER. Costs are based on
distance and maximum truck load size of 18 tons.\67\ A minimum of four
loads per year is assumed based on the maximum accumulation period of
90 days. Otherwise, the number of loads per year is calculated by
dividing the total annual generation quantity by the assumed maximum
truck load size of 18 tons. For small businesses, a truck load size of
5 tons was assumed. The ECHOS minimum shipment fee of $730 was used to
determine transportation unit costs below 200 miles for hazardous
waste. The distances presented in the EPA report: ``Evaluation of Cost
and Economic Impacts of F006 Recycling Rulemaking Options'' from
December 2001 for landfill disposal of electroplating wastes (based on
a sample of 75 facilities) were utilized as a proxy for the
transportation distances for sludge disposal. Nonhazardous waste
transportation costs (excluding manifesting costs) also were estimated
based on bulk hazardous waste transportation costs reported in RACER.
Costs are based on distance and a maximum load size of 18 tons. Due to
the relatively close transportation distances estimated for Subtitle D
landfills, a unit cost of $2.21 per mile ($0.12 per ton-mile) was used.
The transportation cost is estimated to be less than the hazardous
transportation unit cost due to the regularly scheduled, full 18-ton,
bulk nonhazardous waste shipments. For nonhazardous waste and post rule
product recovery, no minimum number of loads is assumed. The number of
shipments per year is calculated by dividing the total annual
generation quantity by the assumed maximum truck load size of 18 tons.
---------------------------------------------------------------------------

\67\ RACER indicates a maximum truck load size of 18 tons.
---------------------------------------------------------------------------

The weighted average hazardous waste transportation unit cost to a
Subtitle C landfill was estimated at $3.81/mile with a weighted average
distance of 338 miles. The average hazardous waste transportation unit
cost to an incineration facility was estimated at $3.26/mile, with an
average distance of 577 miles. The assumed average nonhazardous waste
transportation unit cost to a Subtitle D landfill was $2.21/mile and an
average distance of 50 miles.
Cost for administrative duties were derived using hour estimates
for each administrative task based on ``best

[[Page 66219]]

engineering judgement'' and are described further in the economic
analysis background document.
Costs for the RCRA Part B Permit were estimated using ``Estimated
Costs for the Economic Benefits of RCRA Noncompliance'' dated September
1997. General facility requirements and incinerator requirements were
included for the construction and operation of an onsite sludge rotary
kiln. Under the traditional listing option, we estimate that between
four and eight of the 37 facilities would seek a RCRA permit to operate
an onsite incinerator, because it is more economical than managing the
waste in an offsite commercial incinerator. A cost of $51,924 for the
general facility requirements and $26,495 for the incinerator
requirements was determined. Permit costs were annualized over 10 years
at a 7 percent rate for borrowing capital (0.14238).
Incremental corrective action costs associated with unpermitted
facilities include the cost to conduct a RCRA Facility Investigation
(RFI), a Corrective Measures Study (CMS), and remediate solid waste
management units (SWMUs) and areas of concern (AOCs). Depending upon
the option analyzed, some of the unpermitted facilities may be brought
into the RCRA program if they seek a RCRA Part B permit for
incinerators. RCRA corrective action is typically triggered by
facilities seeking a RCRA permit. As noted above, under the traditional
listing option, we estimate that between four and eight of the 37
facilities will seek a RCRA permit to operate an onsite incinerator
because it is more economical than managing it in an offsite commercial
incinerator. These facilities may incur corrective action costs.
Potential corrective action costs were not estimated for this analysis.
g. Costs and Economic Impacts on the Affected Industries
Our analysis for this proposed rulemaking evaluated the Agency's
preferred approach for management of the wastes of concern, and two
primary regulatory options. The Agency's preferred approach is a mass
loadings-based (with contingent management) rulemaking. The two options
are a no-list--no action determination, and the standard or traditional
listing approach. Beyond the time and effort required to read and
understand the final rule, the no-list option would result in affected
manufacturers incurring no incremental waste management and/or
administrative costs. The Agency preferred mass loadings-based
approach, and the traditional listing option are discussed below.
Incremental compliance costs for the proposed mass loadings-based
approach with contingent management were found to range from $0.6 to
$4.3 million per year, depending upon total waste quantity managed,
nonconditional mass loading levels, and the number of affected
facilities. These findings generally assume baseline waste management
in an unregulated clay-lined landfill and compliance management in a
Subtitle D landfill meeting Sec. 258.40 standards.\68\ Actual baseline
nonwastewater management may be in lined municipal landfills meeting
Sec. 258 .40 standards for most or all potentially impacted
facilities. If this is the case, incremental costs and any associated
benefits under the Agency preferred approach would be less than
estimated. See Section 4.4.1 and Table 4-7 in the Economic Assessment
background document for a complete discussion. The high-end estimate
assumes, in part, Subtitle C incineration for all nonwastewaters
generated at facilities identified as using toluene-2,4-diamine. Under
this scenario, the conditional mass loading level for toluene-2,4-
diamine is assumed to be exceeded at these facilities. Additional
sampling and analysis, transport, and administrative costs are
included, where appropriate. Corporate level economic impacts under
this approach were found to be less than 3 percent of total gross
annual revenues for but one of the affected companies.
---------------------------------------------------------------------------

\68\ Baseline nonwastewater management in an unregulated clay
lined landfill was assumed where facility-specific informaiton was
restricted or not available.
---------------------------------------------------------------------------

Incremental compliance costs for the standard, or traditional
listing option are estimated to range from $9.4 to $15.9 million per
year, depending upon the total quantity of waste impacted.\69\ This
estimate also includes additional sampling and analysis, transport,
administrative, RCRA Part B, and corrective action costs, where
appropriate. Corporate level economic impacts under this option were
found to be less than 3 percent of total gross annual revenues for 93
percent of all affected companies.
---------------------------------------------------------------------------

\69\ Note: An extreme high-end scenario was examined where all
facilities were required to burn all waste under full Subtitle C
requirments. Total annualized costs under this scenario were
estimated at $26 million. This scenario was examined for high-end
bounding purposes only and is not considered to be a feasible
regulatory option.
---------------------------------------------------------------------------

h. Impacts on Other Industries
This regulation may result in impacts to other industries.
Specifically, two categories may be impacted: Municipal and industrial
solid waste landfill operators who previously accepted the wastes of
concern, and, non dyes and/or pigments generators of hazardous waste
containing one or more of the five Constituents of Concern that are not
currently on Appendix VIII or have LDR requirements.
Landfills: A common disposal practice for currently nonhazardous
dye, pigment, and FD&C waste is offsite disposal in municipal solid
waste landfills. The leachate derived from this waste has traditionally
been collected and recirculated, treated, and/or disposed. Because of
the proposed listing, collected leachate from landfills (i.e., cells)
that have accepted these wastes may be hazardous under the Derived-from
Rule (see Section IV.E). Also, when the leachate from these two wastes
mixes with leachate from other wastes, the entire leachate quantity
from the affected landfill (or cell) may be considered hazardous under
the Mixture Rule. By changing the regulatory status of the proposed
wastes, the collected leachate from the disposal of these wastes may be
covered under Subtitle C of RCRA. Municipal Solid Waste (MSW) and other
landfills that have previously accepted and generated leachate from
these wastes (received in quantities above mass loadings levels of
concern) may face increased leachate management costs. This would be an
indirect impact of the rule, as proposed.
The EPA report, ``Characterization of Municipal Solid Waste in the
United States: 1997 Update,'' EPA 530-R-98-007, May 1998, estimates
there were approximately 2,400 MSW landfills in the contiguous U.S. for
1996. Based on the total number of potentially affected dye, pigment,
and FD&C facilities, and their locations, it is likely that no more
than fifty MSW landfills received wastes of concern (in any quantity).
Leachate quantities generated by each of these landfills are dependent
upon the geographic location, area, leachate collection system design,
and operation of the landfill.
We are proposing a Clean Water Act temporary deferral for
potentially affected landfills under today's action. This temporary
deferral would exempt the landfill leachate from RCRA Subtitle C
regulation if it is managed pursuant to certain conditions. After two
years, impacted facilities would no longer be allowed to manage the
exempt leachate in surface impoundments as nonhazardous. Under this
approach, selected landfills may choose to modify their facilities, or
implement expanded personnel training programs and/or alternative
operation and maintenance procedures. Costs associated with these
activities have not been quantified but are likely to be negligible.

[[Page 66220]]

Non Dyes and/or Pigments Waste Generators: Five of the eight
constituents of concern \70\ are not currently on Appendix VIII. These
are: o-anisidine, p-cresidine, 2,4-dimethylaniline, 1,2-
phenylenediamine, and 1,3-phenylenediamine. The proposed listing would
also add five chemicals with the standards in Table VI-1 to the UTS,
namely: o-anisidine, p-cresidine, 2,4-dimethylaniline, 1,3-
phenylenediamine, and toluene-2,4-diamine. The proposed rule will
result in the addition of these constituents to Appendix VIII and
establishment of the additional UTS standards. This would be a direct
impact of the rule potentially affecting an expanded universe of
facilities.
---------------------------------------------------------------------------

\70\ The eight constituents of concern are: aniline, o-
anisidine, p-cresidine, 4-chloroaniline, 2,4-dimethylaniline, 1,2-
phenylenediamine, 1,3-phenylenediamine, and toulene-2,4-diamine.
---------------------------------------------------------------------------

We examined the TRI database, Material Safety Data Sheets (MSDS),
Chemchannels.com \71\ and Biennial Report System (BRS) data in an
effort to identify other facilities that may be generating hazardous
wastes containing any of the constituents of concern.
---------------------------------------------------------------------------

\71\ http://www.chemchannels.com/chemchannel/default.asp.
---------------------------------------------------------------------------

Based on available data, we identified 13 non dye and/or pigment
facilities that may be impacted by the expanded scope of this proposed
rule. The constituents of concern appear to be contained in other
hazardous organic nonwastewaters and currently managed by either energy
recovery or incineration. This is the common management procedure for
these wastes. This procedure is assumed to continue after the rule is
promulgated given that it will comply with the LDR requirements.
Incremental costs to impacted expanded scope facilities are expected to
be limited to additional sampling and analysis requirements necessary
to fully characterize the wastes. We estimate that the additional
sampling and analysis costs would average $2,183.50 per facility, per
year. The total cost for all 13 facilities is estimated to be no more
than $28,400 per year.
Remediation of Hazardous Waste Sites: Adding constituents to
Appendix VIII, by itself, is not expected to have a significant impact
on remediation of hazardous waste sites. The RCRA regulations in 40 CFR
Part 264 establish management standards for hazardous waste treatment,
storage and disposal facilities. Subpart F of 264 sets standards for
addressing releases from solid waste management units. Appendix VIII is
identified in section 264.93 of Subpart F as the list from which
facility-specific groundwater protection standards are developed as
part of a compliance monitoring program under 264.99. These ground-
water protection standards are comprised of the Appendix VIII
constituents that are ``reasonably expected to be in or derived from
waste contained in a regulated unit.'' The addition of these substances
to Appendix VIII, therefore, would only potentially affect those
facilities in compliance monitoring that (1) would reasonably be
expected to use or make these chemicals, or (2) manage these wastes.
Throughout the remainder of this Subpart, the Agency directs permit
writers to Appendix IX, a list specifically designed to be used in
monitoring groundwater. We are not proposing to add any constituents to
Appendix IX.
We have addressed the potential impact on the first category of
facilities (i.e., those that would reasonably be expected to use or
make these chemicals, beyond the Dye and Pigment industries we
evaluated) explicitly in our expanded scope analysis. For the second
category of facilities, those that manage hazardous wastes that might
contain the constituents being added to Appendix VIII, we believe these
costs to be negligible. Our analysis indicates that these compounds are
not widely used in commerce, and thus be unlikely to trigger the 264.93
standard of ``reasonably expected to be in or derived from waste
contained in a regulated unit'' standard. Adding chemicals to Appendix
VIII may also result in the remediation of these constituents at
Superfund sites. However, for the same reasons noted above, we believe
that the addition of these constituents to Appendix VIII will have a
very limited impact (if any) on Superfund cleanups.
i. Lead as a Potential K181 Constituent
We have considered whether a K181 lead standard may significantly
change our assessment of the costs and economic impacts estimated for
the Agency Preferred Approach. Our preliminary assessment indicates
that there would be no substantive impacts. Three facilities were found
to generate wastes that may contain toluene-2,4-diamine. These three
facilities were assumed to generate this constituent above
nonconditional loading levels under our ``high'' analytical scenario
for the Agency Preferred Approach. If we add lead as a K181
constituent, any of these facilities with lead in their wastes would
need to stabilize post incineration residuals to comply with land
disposal restrictions. Assuming all waste is incinerated, the maximum
aggregate incremental costs associated with stabilization, if required,
are likely to be insignificant for these facilities on an individual
basis. Aggregate cost impacts for all three facilities would be no more
than $340,000 per year.
We also considered the potential impact of a K181 standard for lead
for Eastman and Engelhard (Harshaw Chemical). Both of these facilities
have reported significant quantities of lead in the Toxic Release
Inventory (TRI). We believe that Eastman currently combusts it's
commingled (largely non-dyes) wastes, and then manages the resultant
residues in an onsite landfill. Based on available data, this landfill
does not appear to meet the description of the exempt landfill cells,
as detailed in the listing description (i.e., it is not a municipal
solid waste landfill or a Subtitle C landfill). Eastman, therefore, may
pursue one of a variety of actions. These include: Segregating the
wastes in the least costly manner feasible, eliminating the waste
altogether, or sending all affected ash to a Sec. 258.40 compliant MSW
landfill. Eastman also has a Subtitle C landfill onsite, which could be
used for some or all of the incinerated waste of concern. We have not
assessed cost impacts associated with these options. Based on 1999
Biennial Reporting data, Engelhard already manages the majority of
their lead-bearing wastes as hazardous, while the remainder appears to
go to a MSW landfill. We believe, therefore, that the Engelhard
facility is not likely to incur any additional costs of concern.
Section 5.3 of the Economic Assessment background document provides a
more complete discussion of these findings.
j. Risk Assessment and Benefits
As described in detail in Section III, we set the levels for
nonwastewaters by modeling disposal in MSW landfills using several
liner assumptions. We set the baseline loading limits using the results
from clay-lined landfills, and we used the composite-liner results to
set the loading limit for one constituent in MSWLFs meeting the liner
design criteria in Sec. 258.48. The mass loading limits are based on
risks from residential use of groundwater from wells positioned near
the landfills.
Groundwater generally moves relatively slowly, such that the
constituents of concern are not expected to reach the nearby wells for
a number of years. For the eight chemicals for which we are proposing
loading limitations, we examined the groundwater travel times to the
receptor wells for the 90th percentile runs of the Monte Carlo
simulations (these runs were the bases of the loading limits).

[[Page 66221]]

The average groundwater travel time was 189 years, and the range of
travel times across the eight constituents was 74 to 424 years.
As noted in the next section, due to data limitations, we have not
attempted to estimate the change in net welfare potentially resulting
from this proposed rule, nor have we been able to quantify human health
or environmental benefits. Thus, the benefits in terms of reduced human
health risk are unquantified, but are expected to occur some time after
the rule is effective (between 74 to 424 years after the effective
date).
k. Social Costs and Benefits
The social costs of any regulatory action should describe the total
value of resources used to comply with the rule, resulting in a
comprehensive measurement of change in economic net welfare. These
impacts are measured following market adjustments based on industry
supply and demand functions. Due to our lack of data, limited
analytical budget, and strict schedule, we have not attempted to
estimate the change in net welfare potentially resulting from this
proposed rule. Due to these same limitations, we have not been able to
quantify or monetize human health or environmental benefits. Additional
data are necessary to make a firm determination as to whether there
will be quantifiable net benefits (i.e., benefits exceeding social
costs) from the proposed rule.
Below we qualitatively describe those groups who are likely to be
positively and negatively impacted by this proposed rule.

Positively Impacted Groups

[sbull] Dye, pigment, and FD&C manufacturers who may be producing
acceptable lower cost substitutes to the products generating the wastes
of concern,
[sbull] Population groups surrounding dye, pigment, and FD&C
production facilities, plus those near unlined landfills and other
landfills that do not meet the design standards in Sec. 258.40. These
populations may benefit from lower health risks due to increased
management control and/or improved waste treatment, thereby
theoretically experiencing reduced health care costs and increased
productivity.

Negatively Impacted Groups

[sbull] Dye, pigment, and FD&C manufacturers who are subject to
requirements of the proposed rule.
[sbull] Non dyes and/or pigments manufacturers who may be impacted
by expanded scope requirements,
[sbull] Consumers who may be impacted if there are increases in
dye, pigment, and FD&C prices as a result of the rule,
[sbull] Municipal landfills that may need to install new tanks or
piping systems, or implement other procedures in order to take
advantage of the proposed temporary deferral under the Clean Water Act.

B. Paperwork Reduction Act

The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 2120.01.
EPA is proposing to list dyes and/or pigments nonwastewaters (i.e.,
K181 waste) under the authority of sections 2002(a), 3001(b),
3001(e)(2), 3004(d)-(m), and 3007(a) of RCRA, as amended by the
Hazardous and Solid Waste Amendments of 1984 (HSWA). Section 3001(e)(2)
directs EPA to make a determination of whether or not to list under
section 3001(b)(1) dyes and pigments, among other wastes. Under this
authority, EPA has examined dyes and/or pigments production wastes
(e.g., using risk assessment tools), identified CoCs and their
potential risks, and established a mass ``loadings-based'' approach
that would qualify the waste as hazardous under RCRA. Under sections
2002(a) and 3007(a) of RCRA, EPA is establishing information collection
requirements that are needed to ensure that the listed wastes are
managed and disposed of properly.
In addition, the proposed rule satisfies EPA's duty under a Consent
Decree between EPA and the Environmental Defense (formerly
Environmental Defense Fund (EDF)). Under this Consent Decree, the
Agency is required to ``promulgate final listing determinations for
azo/benzidine, anthraquinone, and triarylmethane dye and pigment
production wastes on or before February 16, 2005 * * * These listing
determinations shall be proposed for public comment on or before
November 10, 2003.''
EPA is proposing that the mass loadings-based listing be self-
implementing, which means that no prior governmental review or approval
is needed for the waste to be claimed as nonhazardous. Because of this,
EPA believes that the recordkeeping requirements in the proposal are
needed to ensure that generators characterize their wastes accurately
and reliably, and keep records of the claims on site.
EPA believes the proposed mass loadings-based approach allows
generators to evaluate the variable wastes they generate individually
for hazard, so only wastes that are hazardous are listed. As a result,
there should be less burden on dyes and/or pigments manufacturers than
would be imposed by a traditional listing that would bring entire
wastes into the hazardous waste system, regardless of the
characteristics of the wastes generated by individual generators.
Finally, a mass loadings-based listing approach may provide an
incentive for hazardous waste generating facilities to modify their
manufacturing processes or treat their wastes.
EPA estimates that 37 respondents will be subject to the new
paperwork requirements under the proposed rule. The hourly
recordkeeping burden from the new requirements ranges between one and
11 hours per respondent per year. This burden includes time for reading
the regulations (once per respondent over three years), determining
whether dyes and/or pigments nonwastewaters exceed regulatory listing
levels, and keeping documentation on site, as specified.
EPA estimates the total cost to respondents subject to the new
paperwork requirements under the proposed rule to be $76,626 per year.
This includes a total labor cost per year of $33,066, a total
operations and maintenance cost per year of $43,560, and no capital
costs. 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.
To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing

[[Page 66222]]

respondent burden, including the use of automated collection
techniques, EPA has established a public docket for this rule, which
includes this ICR, under Docket ID number RCRA-2003-0001. Submit any
comments related to the ICR for this proposed rule to EPA and OMB. See
Addresses section at the beginning of this notice for where to submit
comments to EPA. Send comments to OMB at the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street,
NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after November 25, 2003, a comment to OMB is best assured of having its
full effect if OMB receives it by December 26, 2003. The final rule
will respond to any OMB or public comments on the information
collection requirements contained in this proposal.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et. seq, 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, a small entity is defined as: (1) A small business that is
defined by the Small Business Administration by category of business
using the North American Industrial Classification System (NAICS) and
codified at 13 CFR 121.201; (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.
We have identified a total of 37 organic dye, pigment, and FD&C
facilities in operation in the U.S., which are owned by 29 different
companies that are believed to be generating wastes of concern. Of
these, 16 facilities are owned by 15 small companies. This
determination is based on the Small Business Administration (SBA)
definition of ``small business'' for these industries, defined as fewer
than 750 employees at the corporate level.\72\ A number of these
companies are very small, with fewer than 50 total full-time employees.
Of the 13 expanded scope companies, one was determined to be a small
business.
---------------------------------------------------------------------------

\72\ ``Table of Small Business Size Standards--Matched to North
American Industrial Classification System (NAICS) Codes,'' revised
May 5, 2003. Small Business Adminsitration (SBA).
---------------------------------------------------------------------------

The cost of compliance impacts for all small companies potentially
affected by the rule were found to range from 0.00 percent to 0.52
percent of gross annual corporate revenues, depending upon the level of
nonwastewater quantities generated. The percent of annual corporate
sales impact for the one expanded scope small business is estimated at
0.08 percent.
After considering the economic impacts of today's proposed rule on
small entities, I certify that this action will not result in
significant economic impacts on a substantial number of small dyes and/
or pigments production businesses subject to the rule requirements. The
reader is encouraged to review and comment on the regulatory
flexibility screening analysis prepared in support of this
determination: ``Regulatory Flexibility Screening Analysis for the
Proposed Loadings-Based Listing of Non-Wastewaters from the Production
of Selected Organic Dyes, Pigments, and Food, Drug, and Cosmetic
Colorants.'' This document is available in the public docket.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 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.
EPA has determined that this proposed rule would 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. The nationwide annual cost for this
rule, as proposed, is estimated to be less than five million dollars.
This proposed rule does not impose an enforceable duty on any State,
local or tribal government; consequently it does not include any
Federal mandate with the potential to result in expenditures of $100
million of more to State, local, or tribal governments. EPA also has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments. In addition,
the private sector is not expected to incur costs exceeding $100
million. Thus, today's rule is not subject to the requirements of
sections 202 and 205 of the Unfunded Mandates Reform Act. EPA has
determined that this proposed rule contains no regulatory requirements
that might significantly or uniquely affect small governments.

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.''

[[Page 66223]]

Under 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 the 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
proposed 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 levels of government,
as specified in Executive Order 13132. The proposed rule focuses on
requirements for facilities generating wastes of concern. Marginal
administrative burden impacts may occur to selected States and/or EPA
Regional Offices such as increased administrative needs, enforcement
requirements, or voluntary information requests. However, this rule, as
proposed, will not have substantial direct effects on the States or the
relationships between governments in its implementation. Thus,
Executive Order 13132 does not apply to this rule. Although section 6
of Executive Order 13132 does not apply to this rule, EPA did consult
with State officials in the development of this rule. State officials
were contacted concerning baseline waste management procedures for the
wastes of concern.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

Executive Order 13175,\73\ 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 proposed rule does not
have tribal implications, as specified in Executive Order 13175. The
proposed rule focuses on requirements for all regulated sources without
affecting the relationships between tribal governments in its
implementation, and applies to all regulated sources, without
distinction of the surrounding populations affected. Thus, Executive
Order 13175 does not apply to this rule. EPA specifically solicits
additional comment on this proposed rule from tribal officials.
---------------------------------------------------------------------------

\73\ Executive Order 13084 is revoked by this Executive Order.
---------------------------------------------------------------------------

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

The 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 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 proposal is not subject to Executive
Order 13045 because it is determined to not be economically significant
under Executive Order 12866, and does not concern an environmental
health or safety risk that we have reason to believe may cause a
disproportionate effect on children. Concerned stakeholders are
encouraged to submit any relevant data and provide comments on this
determination.

H. Executive Order 12898: Environmental Justice

Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Population'' (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. Our goal is to ensure that all
citizens live in clean and sustainable communities. In response to
Executive Order 12898, and to concerns voiced by many groups outside
the Agency, 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).
We have assessed whether today's proposed rule may help mitigate,
or result in disproportionate effects on minority or low-income
populations. Due to budgeting and scheduling constraints, we have not
compiled data correlating individual facility locations with minority/
low income populations. However, our risk assessment did not identify
risks from the management of dye, pigment, and FD&C production
wastewaters in onsite tanks or surface impoundments at the generating
facilities. In fact, based on this assessment, we are not proposing to
list these wastewaters as hazardous waste. Therefore, we believe that
any populations in proximity to these manufacturing facilities are not
adversely affected by common waste management practices for these
wastewaters. This proposed listing will reduce risks associated with
managing the targeted nonwastewaters in nonhazardous Subtitle D
landfills. This may reduce risks for any sensitive populations living
in proximity to such facilities who rely on ground water for drinking
water supplies.
This proposed rule is expected to provide incentives for reducing
the use of hazardous constituents and may thereby reduce environmental
risks associated with the facilities generating these wastes. Thus, the
Agency believes that this rule may help mitigate health risks to
minority and low income communities living near impacted facilities.
Furthermore, we have no data indicating that today's proposal would
result in disproportionately negative impacts on minority or low income
communities.

I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

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
an economically significant regulatory action under Executive Order

[[Page 66224]]

12866. Furthermore, it is not expected to have a significant adverse
impact on the supply, distribution, or use of energy.

J. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, 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
proposed rulemaking does not involve the use of any voluntary consensus
standards.

List of Subjects

40 CFR Part 148

Administrative practice and procedure, Hazardous waste, Reporting
and record keeping requirements, Water supply.

40 CFR Part 261

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

40 CFR Part 268

Environmental protection, Hazardous materials, Waste management,
Reporting and record keeping requirements, Land Disposal Restrictions,
Treatment Standards.

40 CFR Part 271

Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous material transportation,
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties,
Reporting and record keeping requirements, Water pollution control,
Water supply.

40 CFR Part 302

Environmental protection, Air pollution control, Chemicals,
Emergency Planning and Community Right-to-Know Act, Extremely hazardous
substances, Hazardous chemicals, Hazardous materials, Hazardous
materials transportation, Hazardous substances, Hazardous wastes,
Intergovernmental relations, Natural resources, Reporting and record
keeping requirements, Superfund, Waste treatment and disposal, Water
pollution control, Water supply.

Dated: November 10, 2003.
Michael O. Leavitt,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

PART 148--HAZARDOUS WASTE INJECTION RESTRICTIONS

1. The authority citation for part 148 continues to read as
follows:

Authority: Sec. 3004, Resource Conservation and Recovery Act, 42
U.S.C. 6901, et seq.

2. Section 148.18 is amended by revising the paragraph (l) and
adding (m) to read as follows:

Sec. 148.18 Waste-specific prohibitions--newly listed and identified
wastes.

* * * * *
(l) Effective [insert date six months after date of publication of
final rule], the waste specified in 40 CFR 261.32 as EPA Hazardous
Waste Number K181 is prohibited from underground injection.
(m) The requirements of paragraphs (a) through (l) of this section
do not apply:
(1) If the wastes meet or are treated to meet the applicable
standards specified in subpart D of 40 CFR part 268; or
(2) If an exemption from a prohibition has been granted in response
to a petition under subpart C of this part; or
(3) During the period of extension of the applicable effective
date, if an extension has been granted under Sec. 148.4.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

3. 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.

4. Section 261.4 is amended by revising paragraph (b)(15) to read
as follows.

Sec. 261.4 Exclusions.

* * * * *
(b) * * *
(15) Leachate or gas condensate collected from landfills where
certain solid wastes have been disposed, provided that:
(i) The solid wastes disposed would meet one or more of the listing
descriptions for Hazardous Waste Codes K169, K170, K171, K172, K174,
K175, K176, K177, K178 and K181 if these wastes had been generated
after the effective date of the listing;
(ii) The solid wastes described in paragraph (b)(15)(i) of this
section were disposed prior to the effective date of the listing;
(iii) The leachate or gas condensate do not exhibit any
characteristic of hazardous waste nor are derived from any other listed
hazardous waste;
(iv) Discharge of the leachate or gas condensate, including
leachate or gas condensate transferred from the landfill to a POTW by
truck, rail, or dedicated pipe, is subject to regulation under sections
307(b) or 402 of the Clean Water Act.
(v) As of February 13, 2001, leachate or gas condensate derived
from K169-K172 is no longer exempt if it is stored or managed in a
surface impoundment prior to discharge. As of November 21, 2003,
leachate or gas condensate derived from K176, K177, and K178 is no
longer exempt if it is stored or managed in a surface impoundment prior
to discharge. After [date 24 months from date of final publication],
leachate or gas condensate derived from K181 will no longer be exempt
if it is stored or managed in a surface impoundment prior to discharge.
There is one exception: if the surface impoundment is used to
temporarily store leachate or gas condensate in response to an
emergency situation (e.g., shutdown of wastewater treatment system),
provided the impoundment has a double liner, and provided the leachate
or gas condensate is removed from the impoundment and continues to be
managed in compliance with the conditions of this paragraph after the
emergency ends.
* * * * *
5. Section 261.32 is amended by:
a. Designating the existing text and table as paragraph (a),
b. In the table by adding a new entry in alphanumeric order (by
first column) under the heading ``Organic Chemicals'',
c. Adding paragraphs (b), (c) and (d).
The revisions and additions read as follows:

Sec. 261.32 Hazardous wastes from specific sources.

(a) * * *

[[Page 66225]]

------------------------------------------------------------------------
Industry and EPA hazardous
waste No. Hazardous waste Hazard code
------------------------------------------------------------------------

* * * * * * *
Oganic Chemicals:

* * * * * * *
K181.................. Nonwastewaters from (T)
the production of
dyes and/or pigments
(including
nonwastewaters
commingled at the
point of generation
with nonwastewaters
from other processes)
that, at the point of
generation, contain
mass loadings of any
of the constituents
identified in
paragraph (c)(1) of
this section that are
equal to or greater
than the
corresponding
paragraph (c)(1)
levels, as determined
on a calendar year
basis. These wastes
would not be
hazardous if: (i) The
nonwastewaters do not
contain annual mass
loadings of the
constituent
identified in
paragraph (c)(2) of
this section at or
above the
corresponding
paragraph (c)(2)
level; and (ii) the
nonwastewaters are
disposed in a
Subtitle D landfill
cell subject to the
design criteria in
Sec. 258.40 or in a
Subtitle C landfill
cell subject to
either Sec. 264.301
or Sec. 265.301.
For the purposes of
this listing, dyes
and/or pigments
production is defined
in paragraph (b)(1)
of this section.
Paragraph (d) of this
section describes the
process for
demonstrating that a
facility's
nonwastewaters are
not K181. This
listing does not
apply to wastes that
are otherwise
identified as
hazardous under Sec.
Sec. 261.21-24 and
261.31-33 at the
point of generation.
Also, the listing
does not apply to
wastes generated
before any annual
mass loading limit is
met.

* * * * * * *
------------------------------------------------------------------------

* * * * *
(b) Listing Specific Definitions: (1) For the purposes of the K181
listing, dyes and/or pigments production is defined to include
manufacture of the following product classes: Dyes, pigments, or FDA
certified colors that are classified as azo, triarylmethane, perylene
or anthraquinone classes. Azo products include azo, monoazo, diazo,
triazo, polyazo, azoic, benzidine, and pyrazolone products.
Triarylmethane products include both triarylmethane and
triphenylmethane products.
(2) [Reserved]
(c)(1) K181 Listing Levels. Nonwastewaters containing constituents
in amounts equal to or exceeding the following levels during any
calendar year are subject to the K181 listing unless the conditions in
the K181 listing are met:

------------------------------------------------------------------------
Chemical Mass levels
Constituent abstracts No. (kg/yr)
------------------------------------------------------------------------
Aniline................................. 62-53-3 9,300
o-Anisidine............................. 90-04-0 110
4-Chloroaniline......................... 106-47-8 4,800
p-Cresidine............................. 120-71-8 660
2,4-Dimethylaniline..................... 95-68-1 100
1,2-Phenylenediamine.................... 95-54-5 710
1,3-Phenylenediamine.................... 108-45-2 1,200
Toluene-2,4-diamine..................... 95-80-7 0.99
------------------------------------------------------------------------

(2) K181 Exemption Levels. The K181 listing does not include
nonwastewaters that, at the point of generation, contain no waste
constituents meeting or exceeding the following levels during any
calendar year, and which meet the landfill disposal condition set out
in the listing description:

------------------------------------------------------------------------
Chemical Mass levels
Constituent abstracts No. (kg/yr)
------------------------------------------------------------------------
Toluene-2,4-diamine..................... 95-80-7 140
------------------------------------------------------------------------

(d) Procedures for demonstrating that dyes and/or pigments
nonwastewaters are not K181. The following procedures establish when
nonwastewaters from production of dyes/pigments can be managed as
nonhazardous.
(1) Determination based on no K181 constituents. Generators that
have knowledge (e.g., knowledge of constituents in wastes based on
prior sampling and analysis data and/or information about raw materials
used, production processes used, and reaction and degradation products
formed) that their wastes contain none of the K181 constituents (see
paragraph (c) of this section) can use their knowledge to determine
that their waste is not K181. The generator must document the basis for
all such determinations on an annual basis and keep each annual
documentation for three years.
(2) Determination for generated quantities less than 1,000 MT/yr.
for wastes that contain K181 constituents. If the total annual quantity
of dyes and/or pigments nonwastewaters generated is 1,000 metric tons
or less, the generator can use knowledge of the wastes (e.g., knowledge
of constituents in wastes based on prior analytical data and/or
information about raw materials used, production processes used, and
reaction and degradation products formed) to conclude that annual mass
loadings for the K181 constituents are below either the paragraph
(c)(1) or (c)(2) listing levels of this section. To make this
determination, the generator must:

[[Page 66226]]

(i) Each year document the basis for determining that the annual
quantity of nonwastewaters expected to be generated will be less than
1,000 metric tons.
(ii) Track the actual quantity of nonwastewaters generated from
January 1 through December 31 of each year. If, at any time within the
year, the actual waste quantity exceeds 1,000 metric tons, the
generator must comply with the requirements of paragraph (d)(3) of this
section for the remainder of the year.
(iii) Keep a running total of the K181 constituent mass loadings
over the course of the calendar year.
(iv) Keep the following records onsite for three years:
(A) The quantity of dyes and/or pigments nonwastewaters generated.
(B) The relevant process information used.
(C) The calculations performed to determine annual total mass
loadings for each K181 constituent in the nonwastewaters during the
year.
(3) Determination for generated quantities greater than 1,000 MT/
yr. for wastes that contain K181 constituents:
(i) Determine which K181 constituents (see paragraph (c) of this
section) are reasonably expected to be present in the wastes based on
knowledge of the wastes (e.g., based on prior sampling and analysis
data and/or information about raw materials used, production processes
used, and reaction and degradation products formed).
(ii) Develop a waste sampling and analysis plan (or modify an
existing plan) to collect and analyze representative waste samples for
the K181 constituents reasonably expected to be present in the wastes.
At a minimum, the plan must include:
(A) A discussion of the number of samples needed to characterize
the wastes fully;
(B) The planned sample collection method to obtain representative
waste samples;
(C) A discussion of how the sampling plan accounts for potential
temporal and spatial variability of the wastes.
(D) A detailed description of the test methods to be used,
including sample preparation, clean-up (if necessary), and
determinative methods.
(iii) Collect and analyze samples in accordance with the waste
sampling and analysis plan.
(A) The sampling and analysis must be unbiased, precise, and
representative of the wastes.
(B) The analytical measurements must be sufficiently sensitive,
accurate and precise to support any claim that the constituent mass
loadings are below the paragraph (c) listing levels of this section.
(iv) Record the analytical results.
(v) Record the waste quantity represented by the sampling and
analysis results.
(vi) Calculate constituent-specific mass loadings (product of
concentrations and waste quantity).
(vii) Keep a running total of the K181 constituent mass loadings
over the course of the calendar year.
(viii) Determine whether the mass of any of the K181 constituents
listed in either paragraph (c)(1) or (c)(2) of this section generated
between January 1 and December 31 of any year is below the K181 listing
levels.
(ix) Keep the following records onsite for three years:
(A) The sampling and analysis plan.
(B) The sampling and analysis results (including QA/QC data)
(C) The quantity of dyes and/or pigment nonwastewaters generated.
(D) The calculations performed to determine annual mass loadings.
(x) Nonhazardous waste determinations must be conducted annually to
verify that the wastes remain nonhazardous.
(A) The annual testing requirements are suspended after three
consecutive successful annual demonstrations that the wastes are
nonhazardous. The generator can then use knowledge of the wastes to
support subsequent annual determinations.
(B) The annual testing requirements are reinstated if the
manufacturing or waste treatment processes generating the wastes are
significantly altered, resulting in an increase of the potential for
the wastes to exceed the listing levels.
(C) If the annual testing requirements are suspended, the generator
must keep records of the process knowledge information used to support
a nonhazardous determination. If testing is reinstated, a description
of the process change must be retained.
(4) Recordkeeping for (c)(2) exemption. For the purposes of meeting
the landfill disposal condition set out in the K181 listing
description, the generator must maintain onsite for three years
documentation demonstrating that each shipment of waste was received by
a landfill cell subject to the landfill design standards set out in the
listing description.
(5) Waste holding and handling. During the interim period, from the
point of generation to completion of hazardous waste determination, the
generator is responsible for storing the wastes appropriately. If the
wastes are determined to be hazardous and the generator has not
complied with the subtitle C requirements during the interim period,
the generator would be subject to an enforcement action for improper
management.
6. Appendix VII to part 261 is amended by adding the following
entry in alphanumeric order (by the first column) to read as follows.

Appendix VII to Part 261--Basis for Listing Hazardous Waste
------------------------------------------------------------------------
Hazardous constituents for which
EPA hazardous waste No. listed
------------------------------------------------------------------------

* * * * * * *
K181............................ Aniline, o-anisidine, 4-chloroaniline,
p-cresidine, 2,4- dimethylaniline,
1,2-phenylenediamine, 1,3-
phenylenediamine, toluene-2,4-
diamine.

* * * * * * *
------------------------------------------------------------------------

* * * * *

Appendix VIII to Part 261--Hazardous Constituents

7. Appendix VIII to Part 261 is amended by adding in alphabetical
sequence of common name the following entries:
* * * * *

[[Page 66227]]

----------------------------------------------------------------------------------------------------------------
Chemical
Common name Chemical abstracts name abstracts No. Hazardous waste No.
----------------------------------------------------------------------------------------------------------------

* * * * * * *
o-Anisidine (o-Aminoanisole)........... Benzenamine, 2-Methoxy-... 90-04-0

* * * * * * *
p-Cresidine............................ 2-Methoxy-5- 120-71-8
methylbenzenamine.

* * * * * * *
2,4-Dimethylaniline (2,4-xylidine)..... Benzenamine, 2,4-dimethyl- 95-68-1

* * * * * * *
1,2-................................... 1,2-Phenylenediamine 95-54-5
Benzenediamine.

* * * * * * *
1,3-................................... 1,3-Phenylenediamine 108-45-2
Benzenediamine.

* * * * * * *
----------------------------------------------------------------------------------------------------------------

PART 268--LAND DISPOSAL RESTRICTIONS

8. The authority citation for part 268 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), 6921, and 6924.

Subpart C--Prohibitions on Land Disposal

9. Subpart C is amended by adding Sec. 268.20 and adding and
reserving Sec. Sec. 268.21 through 268.29 to read as follows:

Sec. 268.20 Waste specific prohibitions--Dyes and/or pigments
production wastes.

(a) Effective [date six months from date of publication of final
rule], the waste specified in 40 CFR Part 261 as EPA Hazardous Waste
Number K181, and soil and debris contaminated with this waste,
radioactive wastes mixed with this wastes, and soil and debris
contaminated with radioactive wastes mixed with this waste are
prohibited from land disposal.
(b) The requirements of paragraph (a) of this section do not apply
if:
(1) The wastes meet the applicable treatment standards specified in
Subpart D of this Part;
(2) Persons have been granted an exemption from a prohibition
pursuant to a petition under Sec. 268.6, with respect to those wastes
and units covered by the petition;
(3) The wastes meet the applicable treatment standards established
pursuant to a petition granted under Sec. 268.44;
(4) Hazardous debris has met the treatment standards in Sec.
268.40 or the alternative treatment standards in Sec. 268.45; or
(5) Persons have been granted an extension to the effective date of
a prohibition pursuant to Sec. 268.5, with respect to these wastes
covered by the extension.
(c) To determine whether a hazardous waste identified in this
section exceeds the applicable treatment standards specified in Sec.
268.40, the initial generator must test a sample of the waste extract
or the entire waste, depending on whether the treatment standards are
expressed as concentrations in the waste extract or the waste, or the
generator may use knowledge of the waste. If the waste contains
regulated constituents in excess of the applicable Subpart D levels,
the waste is prohibited from land disposal, and all requirements of
Part 268 are applicable, except as otherwise specified.
10. In Sec. 268.40, the Table of Treatment Standards is amended by
revising the entry for F039 to add constituents in alphabetical
sequence, and by adding in alphanumeric order the new entry for K181 to
read as follows:

Sec. 268.40 Applicability of treatment standards.

* * * * *

[[Page 66228]]

Treatment Standards for Hazardous Wastes
[Note: NA means not applicable]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulated hazardous constituent Nonwastewaters--concentration
Waste description and ---------------------------------------- Wastewaters--concentration in mg/kg \5\ unless noted as
Waste code treatment/regulatory in mg/L \3\, or technology ``mg/L TCLP'', or technology
subcategory \1\ Common name CAS \2\ No. code \4\ code
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * * * *
F039........................ Leachate (liquids that * * *
have percolated o-Anisidine (2- 90-04-0 0.010 0.66
through land disposed methoxyaniline). .............. .......................... .............................
wastes) resulting from * * *................. 120-71-8 0.010 0.66
the disposal of more p-Cresidine........... .............. .......................... .............................
than one restricted * * *................. 95-68-1 0.010 0.66
waste classified as 2,4-Dimethylaniline .............. .......................... .............................
hazardous under (2,4-xylidine). 108-45-2 0.010 0.66
Subpart D of this * * *................. .............. .......................... .............................
part. (Leachate 1,3-Phenylenediamine.. 95-80-7 0.020 1.30
resulting from the * * *.................
disposal of one or Toluene-2,4-diamine...
more of the following * * *.................
EPA Hazardous Wastes
and no other Hazardous
Waste retains its EPA
Hazardous Waste
Number(s): F020, F021,
F022, F026, F027, and/
or F028).

* * * * * * *
K181........................ Nonwastewaters from the Aniline............... 65-53-3 0.81 14
production of dyes and/ o-Anisidine (2- 90-04-0 0.010 0.66
or pigments (including methoxyaniline). 106-47-8 0.46 16
nonwastewaters 4-Chloroaniline....... 120-71-8 0.010 0.66
commingled at the p-Cresidine........... 95-68-1 0.010 0.66
point of generation 2,4-Dimethylaniline 95-54-5 \(6)\ \(7)\
with nonwastewaters (2,4xylidine). 108-45-2 0.010 0.66
from other processes) 1,2-Phenylenediamine.. 95-80-7 0.020 7.30
that, at the point of 1,3-Phenylenediamine..
generation, contain Toluene-2,4-diamine...
mass loadings of any
of the constituents
identified in
paragraph (c)(1) of
this section that are
equal to or greater
than the corresponding
paragraph (c)(1)
levels, as determined
on a calendar year
basis.

* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Footnotes to Treatment Standard Table 268.40:
\1\ The waste descriptions provided in this table do not replace waste descriptions in 40 CFR part 261. Descriptions of Treatment/Regulatory
Subcategories are provided, as needed, to distinguish between applicability of different standards.
\2\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a combination of a chemical with its salts
and/or esters, the CAS number is given for the parent compound only.
\3\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite samples.
\4\ All treatment standards expressed as a Technology Code or combination of Technology Codes are explained in detail in 40 CFR 268.42 Table 1--
Technology Codes and Descriptions of Technology-Based Standards.
\5\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards expressed as a concentration were
established, in part, based upon incineration in units operated in accordance with the technical requirements of 40 CFR part 264, subpart O or 40 CFR
part 265, subpart O, or based upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A facility
may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All concentration standards for nonwastewaters are based on
analysis of grab samples.
\6\ CMBST; or CHOXD fb (BIODG or CARBN); or BIODG fb CARBN.
\7\ CMBST.

* * * * *
11. The Table--Universal Treatment Standards in Sec. 268.48 is
revised by adding in alphabetical sequence the following entries under
the heading organic constituents:

Sec. 268.48 Universal treatment standards.

(a) * * *

[[Page 66229]]

Universal Treatment Standards
[Note: NA means not applicable]
----------------------------------------------------------------------------------------------------------------
Nonwastewater standard--
Wastewater standard-- concentration in mg/kg
Regulated constituent common name CAS \1\ No. concentration in mg/L \3\ unless noted as
\2\ ``mg/L TCLP''
----------------------------------------------------------------------------------------------------------------

* * * * * * *
o-Anisidine (2-methoxyaniline)................ 90-04-0 0.010 0.66

* * * * * * *
p-Cresidine................................... 120-71-8 0.010 0.66

* * * * * * *
2,4-Dimethylaniline (2,4-xylidine)............ 95-68-1 0.010 0.66

* * * * * * *
1,3-Phenylenediamine.......................... 108-45-2 0.010 0.66

* * * * * * *
Toluene-2,4-diamine........................... 95-80-7 0.020 1.30

* * * * * * *
----------------------------------------------------------------------------------------------------------------
\1\ CAS means Chemical Abstract Services. When the waste code and/or regulated constituents are described as a
combination of a chemical with its salts and/or esters, the CAS number is given for the parent compound only.
\2\ Concentration standards for wastewaters are expressed in mg/L and are based on analysis of composite
samples.
\3\ Except for Metals (EP or TCLP) and Cyanides (Total and Amenable) the nonwastewater treatment standards
expressed as a concentration were established, in part, based upon incineration in units operated in
accordance with the technical requirements of 40 CFR part 264, subpart O, or part 265, subpart O, or based
upon combustion in fuel substitution units operating in accordance with applicable technical requirements. A
facility may comply with these treatment standards according to provisions in 40 CFR 268.40(d). All
concentration standards for nonwastewaters are based on analysis of grab samples.

* * * * *

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS

12. The authority citation for part 271 continues to read as
follows:

Authority: 42 U.S.C. 6905, 6912(a), and 6926.

13. Section 271.1(j) is amended by adding the following entries to
Table 1 and Table 2 in chronological order by date of publication to
read as follows.

Sec. 271.1 Purpose and scope.

* * * * *
(j) * * *

Table 1.--Regulations Implementing the Hazardous and Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Federal Register
Promulgation date Title of regulation reference Effective date
----------------------------------------------------------------------------------------------------------------

* * * * * * *
[insert date of signature of final Listing of Hazardous [insert Federal [insert effective date
rule]. Waste K181. Register page numbers of final rule]
for final rule].

* * * * * * *
----------------------------------------------------------------------------------------------------------------

Table 2.--Self-Implementing Provisions of the Solid Waste Amendments of 1984
----------------------------------------------------------------------------------------------------------------
Self-implementing Federal Register
Effective date provision RCRA citation reference
----------------------------------------------------------------------------------------------------------------

* * * * * * *
[Insert effective date of final Prohibition on land 3004(g)(4)(C) and [Insert date of
rule].. disposal of K181 3004(m) publication date of
waste, and prohibition final rule Federal
on land disposal of Register page numbers]
radioactive waste [FR page numbers].
mixed with K181
wastes, including soil
and debris

* * * * * * *
----------------------------------------------------------------------------------------------------------------

[[Page 66230]]

PART 302--DESIGNATION, REPORTABLE QUANTITIES, AND NOTIFICATION

14. The authority citation for part 302 continues to read as
follows:

Authority: 42 U.S.C. 9602, 9603, and 9604; 33 U.S.C. 1321 and
1361.

15. In Sec. 302.4, Table 302.4 is amended by adding the following
new entry in alphanumeric order at the end of the table to read as
follows:

Sec. 302.4 Designation of hazardous substances.

* * * * *

Table 302.4.--List of Hazardous Substances and Reportable Quantities
[Note: All comments/notes are located at the end of this table]
----------------------------------------------------------------------------------------------------------------
Statutory
Hazardous substance CASRN code[dagger] RCRA waste No. Final RQ pounds (Kg)
----------------------------------------------------------------------------------------------------------------

* * * * * * *
K181............................ .............. 4 K181.................. ()
Nonwastewaters from the
production of dyes and/or
pigments (including
nonwastewaters commingled at
the point of generation with
nonwastewaters from other
processes) that, at the point
of generation, contain mass
loadings of any of the
constituents identified in
paragraph (c)(1) of this
section that are equal to or
greater than the corresponding
paragraph (c)(1) levels, as
determined on a calendar year
basis.
----------------------------------------------------------------------------------------------------------------
[dagger]--Indicates the statutory source defined by 1, 2, 3, and 4, as described in the note preceding Table
302.4.
* * * * * * *
---The Agency may adjust the statutory RQ for this hazardous substance in a future rulemaking;
until then, the statutory RQ applies.

* * * * *
[FR Doc. 03-28783 Filed 11-24-03; 8:45 am]

BILLING CODE 6560-50-P